Laidlaw Waste Systems Of Michigan, Inc.

LAIDLAW WASTE SYSTEMS Laidlaw Waste Systems of Michigan, Inc. and Donald Lee Petree . Case 7-CA-23486 9 July 1985 DECISION AND ORDER BY CHAIRMAN DOTSON.AND MEMBERS HUNTER AND DENNIS On 25 January 1985 Administrative Law Judge John H. West issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General , Counsel filed cross-exceptions,' a supporting brief, and a brief in response to the Re- spondent's exceptions. The Respondent 'filed an answer to the General Counsel's cross-exceptions. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. The judge found that the Respondent violated Section 8(a)(3) and (1) by failing to recall Donald Petree because he was not a member of Local 164 without affording him the statutory 30-day grace period for attaining membership. In so doing, the judge discredited the testimony of the Respond- ent's manager, Robert Fultz, and thereby rejected the Respondent's defense that it did not recall Petree because his work performance was unsatis- factory. He therefore found that under Wright Line, 251 NLRB 1083 (1980), the Respondent -failed to rebut the General Counsel's showing that the Re- spondent violated Section 8(a)(3) and (1) when it failed and refused to recall Petree for his lack of membership without first affording him the statuto- ry grace period. We agree. The judge's decision rests largely on his credibil- ity resolutions which are fully supported by the record.2 Additionally, in adopting the judge's deci- '_ The General Counsel excepts to the judge's failure to find that the union-secunty clause is invalid, that it was enforced unlawfully, and that it could not be relied on to deny Petree his right to recall because the contract was not then in effect However, the complaint does not contain any of these allegations With respect to the first two allegations , counsel for the General Counsel merely asserted in her opening statement at the hearing that the union -security clause "is invalid, and therefore cannot be enforced or used . as a defense for failure to recall for lack of mem- bership," and did not indicate she was seeking a finding of a violation based on the clause itself. As to the third allegation, counsel for the Gen- eral Counsel raised the matter for the first time in her postheanng brief In these circumstances, and since the additional violations now sought were not fully litigated, we deny the General Counsel's cross-exceptions 2 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard 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 - 1025 Sion we rely on the fact that Fultz' affidavit to the Board's agent, taken during the investigation, con- tained statements against interest which go to the heart of the critical issue. Thus, Fultz stated in his affidavit: "The primary reason for my failure to offer work to Petree when work became available was his unwillingness to join or transfer to Local 164." Fultz also indicated that, had Petree been a member of Local 164, Fultz would have felt com- pelled to recall Petree. Although in his affidavit Fultz mentioned problems with Petree's work, it is clear from the entire context of the affidavit that Fultz did not truly consider these problems in re- fusing to recall Petree because Fultz thought the contract prohibited him from taking Petree back so long as he was not a member of Local 164. Thus, Fultz said in his affidavit, "When I stated that if Petree had transferred or expressed a willingness to transfer to Local 164, and if I had a choice under the contract as to whether I had to recall him I didn't know if I would or not, I meant I had some problems with his [sic] work habits: We may have been able to talk and work these problems out. The problems were he took breaks too often and for too long a period." Based on the foregoing and the judge's findings, including his credibility resolutions, we agree that the Respondent's defense of poor work perform- ance is unpersuasive. Thus, we conclude that not only is the Respondent's evidence in support of its defense weak in that the Respondent conceded it never warned or disciplined Petree for any per- formance problems, it is also inconsistent with the admissions in Fultz' affidavit that lack of member- ship in Local 164 was the primary reason for the Respondent's actions. We therefore agree with the judge's conclusion that the Respondent failed to meet its burden under Wright Line. ORDER . The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Laidlaw Waste Systems of Michigan,- Inc., Adrian, Michi- gan, its officers, agents, successors, and assigns, shall take the action set forth in the Order. DECISION STATEMENT OF THE CASE JOHN H. WEST, Administrative Law Judge. On a charge filed May 30, 1984, by Donald Lee Petree, a complaint was issued July 3, 1984, alleging, as here perti- nent, (1) that about September 9, 1983, Respondent laid off Petree from its Adrian, Michigan facility at a time when Petree had worked in the Adrian bargaining unit represented by Local 164, International Brotherhood of 275 NLRB No. 150 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters, Chauffeurs, Warehousemen and Helpers of America for less than 30 days, (2) that since about Feb- ruary 16, 1984, Respondent Laidlaw Waste Systems of Michigan, Inc. at its Adrian facility has refused to recall Petree to his position as a driver, although additional drivers have been hired, and (3) that the conduct of Re- spondent as described in (2) above was taken because of Petree's lack of membership in Local 164 and, therefore, constitutes an unfair labor practice within the meaning of Section 8(a)(1) and • (3) of the National Labor Relations Act. In its answer to the complaint, dated July 31,.1984, General Counsel's Exhibit 1(G), Respondent, through an attorney, admitted the three above-described allega- tions. i . • • On October 11, 1984, 1 day before the hearing, Re- spondent filed an amended answer, Joint Exhibit 1, which, as here pertinent, (a) admits the first above-de- scribed allegation but states that the layoff of Petree was directly caused by - his unsatisfactory job performance during the period of late July 1983 through early Sep- tember 1983, (b) admits the second above-described alle- gation, and-(c) denies the last above-described allegation and asserts that Petree was not recalled due to his unsat- isfactory job. performance and, therefore, Respondent has not violated the Act. A hearing' was held in Ann Arbor, Michigan, on Octo- ber 12, 1984. On the entire record in this case, including my observation of the demeanor of the witnesses and consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDCTION ' The Respondent is a Michigan corporation which maintains an office and place of business -at Adrian. It is engaged in hauling and disposing of solid waste refuse and in the operation of a landfill. - - Respondent admitted that, during the year ending De- cember 31, 1983, which period is representative of its op- erations during all times material, Respondent, in the course and conduct of its business operations, had gross revenues in excess of $500,000, and provided waste haul- ing services valued in excess of $50,000 within the State of Michigan for each of the Ford Motor Co. (Ford), i Its answer to the first above-described allegation also contains the following By way of further answer, Respondent states that the Charging Party, was a member of Local 247 [of the Teamsters] and worked out of the 247 jurisdiction keeping Respondent's truck at his residence until, he abused this privilege and Respondent thereafter required Charging Party to pick up Respondent's vehicle in Adrian which is under Local 164 jurisdiction and drive the same to Monroe [Michi- gan] for the day's work Local 164 demanded that Charging Party become a member of Local 164 if his job commenced in Local 164 Jurisdiction Thereafter, a Local 164 laid-off employee threatened to :file a grievance because of having more seniority than Charging Party. and Respondent was advised to lay off Charging Party and call back the laid-off employee in Charging Party's place And its answer to the second above-described allegation also contains the following - By way of further answer, Respondent states that the only job open- ings were through Local 164 and Charging Party refused to become a member and thereby excluded himself from further employment consideration General Motors, Corp., The -Detroit Edison Company, and Stauffer Chemical Co., each of which corporations is directly engaged in interstate commerce. Also it admitted that during the year ending Decem- ber 31, 1983, a representative period, each of Ford, Gen- eral Motors Corporation, The Detroit Edison Company, and Stauffer Chemical Company had gross revenues in excess of $500,000 and purchased-from points located outside the State of Michigan and caused-to be shipped directly to its Michigan 'facilities goods and`materia]s'`T valued in excess of $50,000. Accordingly, it is found that Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning' of- Section 2(2), (6), and (7) of the Act, and that; it will effectuate the policies of the Act to assert jurisdiction.. It is admitted, and I find, that both Local 164 and Local 247, -International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpters of America, re- spectively called Local 164 and-Local'247, are, and have been at all times material, labor organizations within the meaning of-Section 2(5) of the Act. ° - - II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts ' Petree worked as a mechanic for a predecessor of Re- spondent at the Monroe, Michigan. facility subsequently purchased by Respondent. While working at 'Monroe Petree was a 'member of Local' 247: The predecessor also " maintained a facility at Adrian ahd"the employees'work- ing at that facility were not represented by •a union. -In mid-1980 the' predecessor closed the Monroe facility and transferred employees from that facility to its Adrian fa- cility. At the time the employees at Adrian were 'repre- sented by Local-.164. The seniority 'of, the two groups was "dovetailed" and the former Monroe group - main- tained its agreement with Local 247. Petree, • who had been a steward 'since 1979, continued as -steward- for the former Monroe group. One month -after the ' transfer, Petree quit. . About 4 months later, September 1980, he returned to the Monroe facility when Respondent's manager Jerry Marlow called Petree and told him that Respondent had purchased the predecessor and would operate the Monroe facility under an 'agreement with Local 247.2 Once again Petree worked as a mechanic and was' the steward for the Monroe group, which' consisted of ap- proximately 10 employees. He continued to work for Re- spondent at' Monroe • until December'.1981 "when -he and all the other Monroe employees were laid off because Respondent lost a city contract in-Monroe. The Monroe group did not have bumping rights "with respect to'those employed at Respondent's Adrian'facility. In March 1983 Marlow called Petree aiid'asked him to work for Respondent as a truckdriver.. After ascertaining that he would be working under, the agreement with 2 A contract, effective February 1, 1981, to January 31, 1984, was later negotiated between Respondent and Local 247 covering the Monroe em- ployees Jt Exh 3 It is noted that the first sheet of the agreement refers to the predecessor ' ' . LAIDLAW WASTE SYSTEMS Local 247, Petree accepted. Under the arrangement with Marlow Petree (1) operated the Monroe, Rawsonville, and Milan, Michigan route and parked the truck at his house, (2) reported his hours to Marlow at Adrian, (3) received his paycheck from Marlow,• and (4) went to Adrian to pick. up other trucks or rubbish containers. Petree testified that he worked about 50 hours or better a week. In June or July 1983 Marlow was replaced by Robert Fultz. Shortly after that Petree began parking his 'fruck at Fultz' house. This continued for about 2 weeks and then Petree was instructed by Fultz to park the truck at the Adrian facility. Fultz also told Petree that he could remain a member of Local 247. - , Soon after he started driving out of Adrian, Pat Par- nell, who is an employee at the facility, told Petree that Parrell's son, Rolly, who worked for Respondent as a truckdriver out of Adrian and who was laid off, had more seniority than Petree at the Adrian facility; and that his son was going to go to the Union and get his job back. Petree was laid off on September 9, 1983. A few days before that Fultz told Petree that he heard that Rolly Parrell was going to go "to the Union about . . Petree getting laid off because of seniority." Petree told Fultz that Petree should be dovetailed in if he joined Local 164. On the morning that Petree was laid off he was in- troduced by Fultz to Dave Segert, the business agent of Local 164. Segert told Petree that he had to join Local 164 and Segert gave Petree a membership card. Petree told Segert that Petree wanted to talk to the business agent of Local 247 first and he believed that if he joined Local 164, he should be dovetailed in. Before he went out on his route, Petree received a paycheck and a letter of reprimand from Fultz, described more fully infra. Re- garding the latter, Petree told Fultz that it should be an oral reprimand. Fultz agreed saying: "[T]he letter doesn't mean nothing." When Petree returned from his route about 1 a.m. on September 9, Fultz gave him a letter and laid -him off. Petree testified that Fultz said that Petree was being laid off because "Rolly had more seniority than . .. [Petree] . .. at [Local] 164 . . . and [Petree] . . . would be called back if they were doing any hiring. [He] . . . had call back rights." The body of the letter dated September 9, 1983, General Counsel's Exhibit 2, reads as follows: After much discussion with my superiors and Local 164 . . . representatives, I have made the de- cision as of the end of your work day September 9, 1983, to lay you off. Should I be of assistance help- ing you secure another job. feel free to call on me. Also if something comes up in the future, I will keep your name on file. As of September 9, 1983, .you are "Laid Off" indefinitely. Petree testified that Fultz never told him, prior to his layoff, that he had to join Local 164; and that no one, prior to his layoff, told him what the consequences would be if he did not join Local 164. In March 1984 Petree called the Respondent and spoke with Janet Nighswander,• who is a secretary (ac- 1027- cording to the complaint-which was admitted-she is office manager/bookkeeper) and an admitted supervisor of Respondent within the meaning of Section 2(11) of the Act. He had seen. some new people driving for Re- spondent in Monroe and he wondered why he had not been recalled. Nighswander told Petree that he was not recalled from layoff because he was not a member of Local 164. Petree testified that after his layoff no one from Re- spondent or Local 164 ever advised him either to join Local 164 or of the consequences if he did not Petree did not join Local 164 after his layoff. When asked why not, he gave the following testimony. I felt I had call back rights to it, because the man who took my job was from 164. So if he took my job, I felt I should automatically been called back to 164. And I was told I would be re-you know, re- called if they hired. - Fultz testified that Petree's unwillingness, to join or transfer to Local 164 was not the primary reason he was not recalled; that he gave an affidavit, General Counsel's Exhibit 3, to the Board, however, on June 21, 1984, stat- ing that "[t]he primary reason for my failure to offer work to Petree when work became available was his un- willingness to join or transfer to Local 164"; that if Petree had expressed a willingness to join Local 164, he would have contacted him when work became available after his-layoff; that Petree handled the Ford account in Monroe, along with about three other accounts which required sporadic attention; that Petree trucked refuse in large containers3 to landfills and returned the empty con- tainers to the account; that it should take from 2 to 2-1/2 hours to transport the loaded refuse containers. from Ford to the landfill and return the container empty to Ford; that Petree would handle between three and six refuse containers' a day for Ford, along with an average of one container a day for one of his other accounts; that he believed Petree was taking too much time to service the Ford account; that he discussed this with Petree who indicated that delays were caused by flat tires, break- downs, and being stuck in the mud at the landfill; that Petree was expected to be at Ford at 7 a.m. but alleged- ly, as asserted by Ford representatives who did not testi- fy, "[m]ore often than not he was not getting there early enough", that Respondent had required Petree to trans- port containers from one of the other plants before going to Ford in the morning and this would preclude Petree from getting there at 7 a.m.; that Local 164's business representative told him to lay off Petree; that while he agreed to comply with Business Representative Segert's request to lay off Petree, made the morning or the day he was laid off, the decision to lay off Petree was not made then; that he could not estimate how much weight he gave to this request in deciding to lay off Petree; that while his affidavit indicates "that the prime reason was the Union's . . . recommendation" there was another "primary reason" for laying off Petree, viz, the length of 3 The containers are about 7 feet wide, and they vary between 3 to 8 feet high and 18 to 22 feet long 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time it took Petree to do the job;4 that while -Petree averaged 12 to 14, hours a day on this route, his tempo- rary replacement would average 8 to 10 hours;- that he gave a written warning to Petree dated September 8, 1983, Respondent's Exhibit 2, later changed to an oral warning, regarding an abuse of the "Sick Day" rule in Respondent's agreement with Local 247; that in the letter it is indicated "[a]ny more sick time off will result" in a three (3) day layoff and then you will be discharged on the next offense"; that since he changed the repri- mand to an oral -one, the next step would have been a written warning; that the -"prime motivating factor" for laying off Petree was not Local 164's demand but rather Petree's' work performance; that he never told Petree that he would be laid off if he did-not take less time to service his accounts; that one of the reasons the Ford contract was losing money was because Fultz made the bid on the job based on using a dump much closer to Ford than the landfill which-was actually used; that one of the reasons he had Petree park the truck at Fultz' house was to obtain better control over Petree's hours; that this was also a reason for eventually (described in Fultz' affidavit as in or about early September 1983) re- quiring Petree to park the truck at Adrian, that while his aforementioned affidavit gives the reasons for this change in policy, control over Petree's hours is not men- tioned; that while he did not remember whether the con- tract he negotiated, on behalf of Respondent, with Ford required documentation of poor performance, he remem- bered that there were no letters from Ford complaining about the service in June, July, August, and early Septe- mebr 1983; and that he "wouldn't want to say for sure" when he decided to lay off Petree indefinitely and he did not recall but that it was within a "[c]ouple of days [of the layoff] one way or the other." Kenneth Southwell, who at the time involved herein was a mechanic and "fill in" driver for Respondent at its Adrian. facility, testified that occasionally he drove Pe- tree's route in- his truck; that he usually pulled three or four containers at Ford and sometimes five a day; that he drove the 32 miles mostly over interstate highways to the landfill from- Ford in 40 minutes; that he could handle four Ford containers in 8, to 10 hours; that he serviced non-Ford accounts on the involved route "prob- ably twice a week"; that "very seldom" did he find it necessary to spend 12 to 14 hours handling the Ford ac- count; that the only problem he had with the truck was a flat once in a while; that one time an air compressor on the truck broke down; that on. occasion he had to wait for employees of the accounts he was servicing to come back from lunch etc. before he could do his-job; that it was "awful muddy getting back to the [dump] site" at the landfill;- that there were bulldozers at the landfill 4 On p 8 in his above-described affidavit Fultz stated; "[H]is [Petree's] not being a member of Local 164 was the reason he had to leave in the first place " (Emphasis added) G C Exh 3 The following. appears on pp 14 and 15, the last eight lines in the body of the affidavit When I stated that if Petree had transferred or expressed a willing- ness to transfer to Local 164, and if I had a choice under the con- tract as to whether I had to recall him I didn't know if I would or not, I meant I had some problems his [sic] work habits We may have been able to talk and work these problems out The problems were he took breaks too often and for too long a period which "push[ed] you around if'you need[ed] [it]"; and that he did not have to wait at the landfill for others to be unloaded.5 On rebuttal, Petree testified that Fultz never warned him or told him that he would be laid off or otherwise disciplined him for taking too long to perform his job; that it was about 35 miles from Ford to the landfill; that a "good run" between Ford and the involved landfill would probably take between 2 hours and 2 hours and .•art •)tVi 'l i f iI nts, 15 minutes; that servicing three of the^^,otiher- accoul viz, Hoover BIMAC, and Fruehof would take about 2 hours for each trip; that a lot of times the landfill would be muddy and he would have to wait in line to be pulled in and out by a bulldozer; that at least once a week Ford would overpack the compacting unit causing garbage to spill which Petree was required to pick up; that he could not leave Ford while its employees were on break be- cause he had to have a slip signed; and that while he could begin loading at Ford at 7 a.m. he had to-sit and wait until 8 a.m. for someone in shipping and receiving to arrive and sign him out. - B. Contentions On brief the General Counsel contends that 'the facts do not-demonstrate that Respondent was contemplating or planning to lay off Petree for poor work performance or that Respondent's failure to recall him was due mainly to this asserted reason; that Respondent offered shifting reasons for the layoff; that Fultz' statements in his affida- vit regarding the layoff are admissions against interest and, therefore, substantive evidence that the reason for the layoff was the Union's demand; that since Respond- ent's asserted reason for the layoff is pretextual it follows that the reason asserted for the failure to recall is pretex- tual; that the minor problems Fultz mentions in -his affi- davit about Petree's performance, were apparently viewed by Fultz as surmountable, that Petree's testimony about what Nighswander told him was uncontradicted; that even if, assuming arguendo, work performance was a factor, Respondent has not sustained its burden under Wright Line, 251 NLRB 1083 (1980), of showing that, even if Petree had attained membership in Local 164, it would not have recalled him, that the 1981-84. contracts between Respondent and Local 247 and between Re- spondent and Local 164, and the tentative current agree- ment between Respondent and Local 164 all contain identical union-security language in article 1, section 2, as follows: Section 2-All present employees who are members of the Local Union on the effective date.of this sub- section or on the date of execution of this -Agree- ment, whichever is the later, shall remain members of the Local Union in good standing' as a condition of employment. All present employees who are not 5 Southwell also testified about a conversation he had w'ith'Ford per- sonnel, and a subsequent conversation he had with Petree regarding some discarded tires Since Southwell did not relay the latter conversation to anyone and since Fultz neither testified nor introduced anything relating to this matter it was not shown that the matter was even considered in laying off Peirce or in failing to recall him - - LAIDLAW WASTE SYSTEMS 1029 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 after-the 31st day following,the effective date of this subsection or the date of this Agreement, whichever is the later. . . Respondent's reliance on Petree's lack of membership in Local 164 as the reason for failing to recall him is unlaw- ful in-tworespects,:namely (1) Petree was not employed in Local 164's bargaining unit for 30 days and he was, therefore, not accorded the 30-day grace period for at- taining union membership, and (2) the union-security clause on which the requirement of union membership rests is invalid; that Section 8(a)(3) of the Act permits an employer to enter into an agreement with a union to re- quire as a condition of employment membership in that union on or after the 30th day following the beginning of such employment or the effective date of such agree- ment, whichever is later; that here Petree, was arguably covered by-Local 164's contract when he commenced working out of the Adrian location, and not before, and, therefore, Petree began employment in the Local 164 bargaining unit and became covered by Local 164's con- tract with its own union-security clause less than 30 days prior to his layoff; that Respondent _ refused to recall Petree based on his Jack of membership in Local 164 without affording him the statutory grace period; that the Board and the courts have applied the 30-day grace period to a transfer'between bargaining units represented by different Teamsters locals with separate contracts, Midwest Transfer Co., 125 NLRB 84 (1960), enfd. 287 F.2d 443 (3d Cir. 1961); that an employer. which dis- charges an employee pursuant to a union-security clause before the 30-day grace period has elapsed and thereafter refuses to reinstate the employee violates Section 8(a)(1) and (3) of the Act, Versatile Services, 258 NLRB 810 (1981); that here Respondent violated Section 8(a)(1) and (3) by failing to recall Petree because of his lack of mem- bership in Local "164 without affording him the statutory grace period; that neither Local 164 nor the Respondent provided Petree a reasonable opportunity to join Local 164 prior to his layoff in that he was laid off the same day Segert asked him to join, and. after the layoff, neither Local 164 nor the Respondent advised Petree that he was required to join Local 164 to be eligible for recall; that where an employer, has reason to believe, as here, that an employee has not been afforded a reasonable op- portunity to comply with a union-security clause or is in- formed of his obligations, the employer has a duty to in-- vestigate before enforcing a union-security clause, Versa- tile Services, supra; Western Publishing Co., 263 NLRB 1110 (1982); that- the Respondent's refusal to 'recall Petree constituted enforcement of the union-security clause in its contract with Local 164, and in order for such enforcement to be permissible, the union-security clause must be lawful and in effect at the time of en- forcement; -that. the involved union-security clause does not allow new hires 30 days from the beginning of their employment to attain membership if they are hired after the effective date or date of the agreement, and the clause is thereby:invalid and its enforcement is unlawful. Distillery Workers Local 122 (Oz Liquor Co.), 261 NLRB 1070 (1982); that in Pantlind Hotel Co., 175 NLRB 815 (1969), the Board held that "it is axiomatic that a con- tract which contains an unlawful union security provi- sion may not serve as a defense to a discharge"; that in this respect there is no distinction between a discharge and a failure to recall, and, therefore, Respondent's en- forcement of the invalid union-security clause in its fail- ure to'recall Petree is violative of Section 8(a)(1) and (3), that further, the union-security clause in question was not even in effect at the time Respondent failed-to recall Petree since the most recent contract with Local 164 ex- pired on December 31, 1984, and union-security provi- sions do not survive the expiration date of a contract, Trico Products Corp., 238 NLRB 1306 (1978); that where there is a hiatus between the expiration date of the first contract and the execution date of the second, a union- security clause may not be enforced prior to the execu- tion date of the second contract, Cleveland Typographical Local 53 (Plain Dealer Publishing), 225 NLRB 1281 (1976);_and that here the second contract had not yet been executed, and Respondent, therefore, enforced a union-security clause which was not then in effect in vio- lation of Section 8(a)(3). Respondent, on brief, argues that while the Board and Petree contend that his layoff was motivated by his re- fusal to join Local 164 and that the Local 164 business agent convinced Fultz to lay- him off and not recall him when a position was available in February 1984, it is Re- spondent's position that although the Union's involve- ment had some bearing on the timing of its decision to lay off Petree, the primary motivation was his unsatisfac- tory work record, and the involvement of the Local 164 business agent provided the impetus for Respondent to take "prompt action in resolving the work-related prob- lem with Petree by taking only such action as had been previously contemplated for some' weeks" (R. Br. p. 10); that while Fultz' affidavit indicates that Petree was not recalled primarily due to lack of membership, when he was offered the opportunity to explain more fully the entire background of the work relationship with Petree, Fultz stated that the lack of membership matter was an interunion jurisdictional problem (between Locals 164 and 247) and.most certainly not the primary reason moti- vating the layoff and subsequent failure to recall, that while the Board and Petree contend that the casual remark of a Laidlaw secretary in March 1984 revealed the genuine motivation of Laidlaw, a discriminatory motive cannot be inferred on the part of a company from casual statements made by a, company supervisor (let alone a secretary) to employees, Anserphone, Inc. v. NLRB, 632 F.2d 4, 6 (6th Cir. 1980) which cited its ear- lier decision of NLRB v. Swan Super Cleaners, 384 F.2d .,609 (6th Cir. 1967), and indeed Petree indicated that he did not rely on the comment of the Laidlaw secretary; that despite the fact that the Laidlaw-Local 164 collec- tive-bargaining agreement did not contain in the union- security paragraph the explicit- language that a new em- ployee had at least 30, days within which to decide whether to join the union, the action in laying off Petree must not be construed as a violation of Section 8(a)(3) 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since that decision was premised on unsatisfactory work, not an intent to discriminate by encouraging union mem- bership, that the Board and Petree presented no testimo-. ny demonstrating an intent by Laidlaw to encourage membership in Local- 164; that even if the. Local 164 business agent attempted to influence Petree to join Local 164, the violation .was committed by Local 164 and not Respondent; that where a union causes an em- ployer to discharge an employee for nonmembership in the union, it is considered an unfair labor practice on the part of the union, Boilermakers Local 749 v. NLRB, 466 F.2d 343 (D.C. Cir. 1972); that there is no evidence sup- porting a claim that,Segert and Fultz conspired to induce Petree to join Local 164 or face a layoff; that even if the alleged acts were deemed to constitute a violation of the cited sections of -the Act, Respondent's operation in Adrian was local in nature and, thus, did not affect com- merce for as concluded in NLRB v. Shawnee Milling Co., 184 F.2d 57 (10th Cir. 1950), where a branch is operated as a separate unit controlled by, a local manager with only general supervision- of policies by the interstate parent, and all activities by the branch are intrastate in nature, ' a labor dispute involving the local facility does not affect commerce; that Respondent's Adrian terminal dealt only with a.few customers located exclusively in southeastern Michigan; no operations were conducted in Ohio or Indiana; that the Adrian terminal was distinct from its interstate parent and controlled by Fultz as its general manager, although general supervision of policies was received from-his superior located outside Michigan; and that the conclusion that must'be drawn from these facts is that the dispute between Petree, Local 164, and Laidlaw was local in nature not "affecting commerce." C. Analysis In my opinion Respondent violated Section,8(a)(1) and (3) of the Act by refusing since about February 16, 1984, to recall Petree to his position as a driver although addi- tional drivers have been hired. Section 8(a)(3) of the Act provides: It shall be an unfair labor practice for' an employ- er . . by discrimination in regard to hire or tenure of employment or any term or condition of employ- ment to encourage or discourage membership in any labor organization: Provided, That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not estab- lished, maintained, or assisted by any action defined in section 8(a) of this Act as an unfair labor prac- tice) to require as a condition of employment mem- bership therein on or after the thirtieth day follow- ing the bargaining of such employment or the effec- tive date of such agreement, whichever is later tied to a 30-day grace period before even a valid union- security provision could be applied to him . Petree was laid off before the grace period expired And he was not recalled because he was not a member of Local 164. All of the reliable evidence supports this conclusion. Evi- dence which assertedly suggests the contrary is at best a belated afterthought not to be relied on herein . 6 By fail- ing to recall Petree because of his- lack of membership in Local 164 without affording him the, ,statutory. grace period Respondent violated Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 164 and Local 247 are labor organizations within the meaning of Section 2(5) of the Act. 3. The Respondent violated-Section 8(a)(1) and (3) of the Act by failing to recall Donald Lee Petree from layoff because of his lack of membership in Local 164 without affording him the statutory grace period. 4. The unlawful conduct of Respondent set forth above, occurring in connection with the Respondent's operations described above, has a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tends to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. i THE REMEDY Having found that Respondent has engaged in an unfair labor practice, I shall recommends that Respond- ent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the pur- poses of the Act. Having found that Respondent refused to recall Donald Lee Petree in violation of Section 8(a)(1) and (3) of the Act, I recommend that Respondent recall Petree from layoff (laying off or terminating drivers hired on or after February 16, 1984, if necessary), without prejudice to Petree's seniority or -other rights and privileges and make him whole for any loss of pay he may have suf- fered as a result of Respondent's refusal to recall him since February 16, 1984, by payment to him of a sum of money equal to that which he would have earned as wages during the period from on or after February 16, 1984, to the date on which Respondent recalls him less his net earnings, if any, during said period, with interest thereon to be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).' As pointed out by the General Counsel on brief, for the purposes of Section - 8(a)(3) of the Act Petree, as here pertinent, began his employment when he was trans- ferred to Respondent's Adrian facility in September 1983. Midwest Transfer Co. of Illinois, supra. He was enti- 6 Fultz did nt impress me as being a credible witness He equivocated He contradicted his prior affidavit And his testimony is inconsistent with documentary evidence he himself introduced herein Since Fultz is not credited, under Wright Line, supra, Respondent has not met its burden of demonstrating that there was a lawful reason for failing to recall Petree 7 See generally Isis Plumbing Co, 138 NLRB 716 (1962). LAIDLAW' WASTE SYSTEMS 1031 On these findings of fact and conclusions of law and on the entire record, I issue the.following recommend- ed" - (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply: ORDER The Respondent, Laidlaw Waste Systems of Michigan, Inc., Adrian, - Michigan, its officers, agents, successors, and assigns,' shall 1.r,Cease ;and desist from (a) Failing to recall employees from layoff because of a lack of membership in Local 164 , without affording them the statutory grace period. (b) In any other like or_ related manner interfering with, restraining, or coercing its employees in ' the exer- cise of the rights guaranteed them by Section 7 of the Act or discriminating against its employees in regard to hire or tenure of employment or any term or condition of employment, to encourage membership in, assistance to, or activities on behalf of any labor organization. - - 2. Take the following affirmative action necessary to effectuate the purposes of the Act. (a) Recall Donald Lee Petree from layoff, laying off or terminating drivers hired on or after February 16, 1984, if necessary, and make Donald Lee Petree whole for any losses he. may have suffered as a result of his layoff since February 16, 1984, with interest thereon computed in accordance with current Board policy. (b) Preserve and, on 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' nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Post at its facilities in Adrian, Michigan, copies of the- attached notice marked ".Appendix."9 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. 8 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses 9 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations,Board " - APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had the chance to present their evidence, it has been decided that we vio- lated the law by refusing to recall from. layoff Donald Lee Petree because of his lack of membership in Local Teamsters Local 164 without affording him a statutory grace period. We have been ordered to post this notice. We intend to.carry. out the order of the Board and abide by the following: WE WILL' NOT. fail to recall any employee because of lack of-membership in Local 164 , International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers. of America, without affording the 30-day statu- tory grace period.- WE WILL NOT iii any like or related manner (1) inter- fere with, restrain, or coerce any employee in the exer- cise of their rights guaranteed in Section 7 of the Nation- al Labor Relations Act, or (2) discriminate against any employee in regard to hire or tenure of employment or any term or condition of employment, to encourage membership in, assistance to, or activities on behalf of any labor 'organization. WE WILL recall Donald Lee Petree from layoff,, laying off or terminating drivers hired on or after February 16, 1984, if necessary, and make Donald Lee Petree whole for any- losses he may have suffered as a, result of our re- fusal to recall him since February 16, 1984, with interest thereon computed in accordance with current Board policy. LAIDLAW WASTE SYSTEMS OF MICHIGAN, INC.