Ryder System, Inc.; Ryder Distribution Systems, Inc.; And Dpd, Inc.

1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ryder System, Inc.; Ryder Distribution Systems, Inc.; and DPD, Inc. and Local Motor Freight Employees No. 667, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America and District 2-A, Transportation, Technical, Warehouse, In- dustrial and Service Employees Union , affiliated with District 2, MEBA-AMO, AFL-CIO, Party in Interest. Cases 26-CA-10714 and 26-CA- 10872 24 June 1986 DECISION AND ORDER BY MEMBERS DENNIS, BABSON, AND STEPHENS On 30 August 1985 Administrative Law Judge Howard I. Grossman issued the attached decision. The General Counsel, the Respondents, and the Party in Interest filed exceptions and supporting briefs. The National Labor Relations Board has delegat- ed 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 decided to affirm the judge's rulings, findings,' and conclusions2 only to the extent consistent with this Decision and Order. The General Counsel excepts to the judge's fail- ure to assert jurisdiction over Ryder System, Inc. (RSI) as a joint employer with subsidiaries and af- filiated companies Ryder Distribution Systems, Inc. and DPD, Inc. (RDS and DPD, respectively). The Board will find joint employer status where it can be shown that two or more employers "co-deter- mine those matters governing essential terms and conditions of employment." NLRB v. Browning- Ferris Industries, 691 F.2d 1117, 1124 (3d Cir. 1982). Here, RSI, RDS, and DPD are parties to the unlawful agreement (covering Diesel Recon ac- count drivers) with District 2-A which Victor On- ufrieff, RSI's director of labor relations, negotiated and executed. In addition, he negotiated the appli- ' The Respondents have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive 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 Cu. 1951) We have carefully examined the record and find no basis for re- versing the findings 2 The Respondents argued that Sec 10(b) of the Act bars the finding of 8(aX3) violations with regard to discnmmatees Harold Baker, Richard Roser, Marshall Sexton , Russell Taylor, Wayne Smith, and Troy Hinton In rejecting the Respondents' 10(b) defense, we rely only on the judge's finding that discrimination against these and other former Diesel Recon drivers was integrally connected to the plan to replace the Teamsters with District 2-A and thus closely related to the 8(a)(2) and (5) allega- tions in the original charge See Kelly-Goodwin Hardwood Co, 269 NLRB 33 (1984) cation of the District 2-A master agreement to the Diesel Recon account drivers. Respondents have otherwise conceded the jurisdictional facts pertain- ing to RDS and DPD through which parent hold- ing company, RSI, services accounts of customers engaged in commerce .3 Because the evidence shows RSI codetermines the labor relations and employment practices affecting the co-Respond- ents' drivers, we find RSI, RDS, and DPD are joint employers and we therefore hold RSI also liable for the unfair labor practices committed. ORDER The National Labor Relations Board orders that the Respondents, Ryder System, Inc., Ryder Dis- tribution Systems, Inc., and DPD, Inc., Memphis, Tennessee, their officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified, and the attached notice is substituted for that of the administrative law judge. 3 H. C Thomson, Inc, 230 NLRB 808, 815 (1971), NLRB Y Custom Excavating, 575 F 2d 102, 107 (7th Cir 1978) 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 violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT direct employees to meetings to obtain their signatures on authorization cards for District 2-A, Transportation, Technical, Ware- house, Industrial and Service Employees Union, af- filiated with District 2, MEBA-AMO, or any other labor organization. WE WILL NOT tell employees that we want the aforesaid District 2-A, or that our employees are signing authorization cards for it. WE WILL NOT tell employees that we do not want employees with the Teamsters' attitude. WE WILL NOT encourage employee signatures on authorization cards for the aforesaid District 2-A, or any other labor organization. WE WILL NOT recognize or bargain with the aforesaid District 2-A, or maintain a collective-bar- gaining agreement with it or any other labor orga- nization, when it does not represent an uncoerced majority of our employees. WE WILL NOT refuse to hire nor will we other- wise discriminate against applicants for employ- 280 NLRB No. 118 RYDER SYSTEM 1025 ment because of their assistance to or support of Local Motor Freight Employees No. 667, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization. WE WILL NOT refuse to recognize or bargain collectively with the aforesaid Local 667 as the bargaining representative of our employees in the following unit: All over-the-road truckdrivers employed by us through our Diesel Recon account at our Memphis, Tennessee, location, who are en- gaged in transporting goods for Diesel Recon, excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer full reinstatement to 32 applicants for employment whom we discriminated against because of their support of Local 667 as full-time over-the-road truckdrivers, and WE WILL make them whole, with interest, for any losses they may have suffered because of our discrimination against them. WE WILL remove from our personnel records all employment applications, tapes and recordings, and voice stress analysis tests of employees whom we discriminated against, and inform each employee in writing that we have done so and that nothing con- tained in such documents, voice stress tests, tapes, or recordings will be used as a basis of future per- sonnel action against them. WE WILL withdraw recognition from the afore- said District 2-A as the representative of the em- ployees in the unit described above, and void our collective-bargaining agreement with the labor or- ganization covering such employees. WE WILL recognize and, on request, bargain with the aforesaid Local 667 as the representative of the employees in the foregoing unit and, if agreement is reached, embody it in a signed written contract. RYDER SYSTEM, INC. RYDER DISTRIBUTION SYSTEMS, INC. DPD, INC. William Levy, Esq., for the General Counsel. W. Bruce Swain, Esq., of Memphis, Tennessee, and Victor Onufrieff Esq., of Miami, Florida, for the Respond- ents. James A. McCall, Esq. and Steven L. Murray, Esq., of Washington, D.C., for the Charging Party. Enid J. H. Karpeh, Esq, and Joel C Glanstein, Esq., (O'Donnell & Schwartz), of New York, New York, for the Party in Interest. DECISION STATEMENT OF THE CASE HOWARD I. GROSSMAN, Administrative Law Judge. The original charge in Case 26-CA-10714 was filed on 26 April 1984 by Local Motor Freight Employees No. 667, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica (Local 667 or the Teamsters) and alleges that Diesel Recon Co. of Memphis, Tennessee (Diesel Recon), Ryder System, Inc. (RSI), Ryder Distribution Systems, Inc. (RDS), and DPD-Diesel Recon (DPD), as a single employer or as alter egos, had dominated or interfered with the formation and administration of District 2-A, Transportation, Technical, Warehouse, Industrial and Service Employees Union, affiliated with District 2, MEBA-AMO, AFL-CIO (District 2-A),' had refused to bargain with the Teamsters, and had unlawfully entered into a collective-bargaining agreement covering employ- ees represented by it in violation of Section 8(a)(2) and (5) of the National Labor Relations Act (the Act). The charge also alleges that the Employers, "by the above and other acts," interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them by Section 7 of the Act. The Teamsters filed an amended charge on 30 May 1984, alleging that RSI, RDS, and DPD2 (collectively referred to as Ryder) had rendered unlawful assistance to District 2-A and had refused to hire certain individuals formerly employed by Diesel Recon because of their membership in and support of the Teamsters in violation of Section 8(a)(2) and (3) of the Act. On 5 June 1984 a complaint issued alleging that Ryder had engaged in various acts of interference with employ- ee rights in violation of Section 8(a)(1), had engaged in unlawful assistance to District 2-A in violation of Section 8(a)(2), and had discriminatorily refused to hire five named employees, and others whose names were un- known, because of their support of the Teamsters in vio- lation of Section 8(a)(3) of the Act. The Teamsters filed the original charge in Case 26- CA-10872 on 10 September 1984, alleging that Diesel Recon, and its alter egos, RSI, RDS, and DPD, had re- fused to bargain with the Teamsters and had refused to abide by the terms of a supplemental agreement in viola- tion of Section 8(a)(5) of the Act. This charge was amended by the Teamsters on 24 September 1984 so as to allege that RSI, RDS, and DPD had refused to recog- nize and bargain with the Teamsters since 5 June 1984. A consolidated complaint issued on 26 September 1984, which, as amended on 14 November 1984, alleges that RSI, RDS, and DPD violated Section 8(a)(1) and (2) of the Act by coercing an employee to attend a Dis- ' The name of the Party in Interest appears as stipulated at the hear- ing. 2 In the amendment to the consolidated complaint, the third named Respondent appears as DPD, Inc (G C Exh 1(aa)) 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trict 2-A meeting, telling employees that Ryder employ- ees were signing District 2-A checkoff authorizations and that Ryder wanted District 2-A, encouraging its employ- ees to ratify a collective-bargaining agreement between Ryder and District 2-A, telling employees that it would close its Memphis facility if the Teamsters obtained bar- gaining rights, and informing an employee that it did not want former Diesel Recon employees "with the Team- sters attitude." Further conduct alleged to be violative of Section 8(a)(2) was Ryder's urging employees to sign checkoff authorizations, aiding District 2-A to obtain them, directing employees to attend a District 2-A meet- ing for the purpose of obtaining such signatures, granting recognition to District 2-A, and entering into and main- taining a collective-bargaining agreement with it. The amended complaint also alleges that Ryder violat- ed Section 8(a)(3) by discriminatorily refusing to hire 32 individuals" because they supported or assisted the Teamsters. In addition, the complaint alleges that Diesel Recon subcontracted the over-the-road transport of its products to Ryder, and that, but for Ryder's discrimina- tory refusal to hire Diesel Recon drivers, Ryder would have had as a majority of its employees drivers who were formerly employed by Diesel Recon. For these and other reasons, the complaint alleges Ryder was a succes- sor to Diesel Recon. Finally, the complaint alleges the Teamsters demanded recognition and bargaining, and Ryder refused, in violation of Section 8(a)(5) of the Act. A hearing was held before me on these matters in Memphis, Tennessee, on 3, 4, and 5 December 1984, 14 and 15 January 1985, and 25 February 1985. Briefs have been submitted by the General Counsel, the Teamsters, and Ryder. In addition, Ryder has filed a motion to strike portions of the General Counsel's brief, and the latter has replied with an opposition thereto. On the entire record, including the documents, and on my obser- vation of the demeanor of the witnesses, I make the fol- lowing FINDINGS OF FACT I. JURISDICTION-THE RYDER SYSTEM The pleadings establish that RDS and DPD are corpo- rations with an office and place of business in Memphis, Tennessee, where they are engaged in the transportation of goods and products. The pleadings further establish that, for the 12-month period ending 30 April 1984, RDS and DPD each received gross revenues in excess of $50,000 for the interstate transportation of freight, and that each Respondent is an employer engaged in com- merce within the meaning of the Act. I so find. 8 Homer Parsley, Harold Baker , John Partam, Norris Harris, Allen Thomas, Vernon Lee Wilson , Carl Briscoe, Michael Davis, Larry Baker, Douglas Dodson , Larry Griggs, Tommy Bracken, Troy Hinton, Marshall Neal Sexton, Richard Roser, Nolan Harris, Ralph Sanders , Ronald Newsom, Joe W. Gross, Jerry Ferguson, James Wait, William Shilling- burg, Bobby L Goza, Ronnie Galligher, Bobby J Todd, Wayne Smith, David M Williams, Russell Wayne Taylor, Larry Elmore, Willie Jones, Frank Varble, and David Elmore The testimony of the last named indi- vidual and the General Counsel 's clanfication at hearing establish that the correct name is Wyman David Elmore The alleged discriminatee, "Frank Varble," testified that his name is "Franklin R Barbie ," which I accept as accurate The pleadings are ambiguous on the jurisdictional status of RSI-Ryder System, Inc. The complaint refers collectively to RSI, RDS, and DPD as Respondent, and alleges that Respondent is an employer engaged in com- merce.4 The answer admits this allegation. 5 However, the answer denies the jurisdictional facts pertaining to RSI alleged in the complaint,6 and Ryder's counsel stated at the hearing that his admission that Respondent is an employer engaged in commerce pertained to RDS and DPD. RDS Director of Operations Harlan Johnson testified that RSI is a financial or holding company, a "corporate office" consisting of seven separate divisions. It does not itself engage in transportation activities. Asked to explain the relationship between RSI and RDS, Johnson replied merely that RDS is a wholly owned subsidiary of RSI. RDS is a "dedicated contract carrier," and as such contracts with various customers to perform their trans- portation services, according to Johnson. In performing these services, RDS utilizes the equipment of another RSI subsidiary, Ryder Truck Rental (RTR). DPD is a corporation formed by Ryder for the pur- pose of acquiring authority to operate from the Interstate Commerce Commission. The complaint alleges and the answer admits that DPD is a wholly owned subsidiary of RSI.7 Operations Director Johnson, however, testified that DPD and RDS have the same managerial hierarchy, and his testimony is ambiguous on the issue of whether DPD is a wholly owned subsidiary of RSI, as set forth in the pleadings, or RDS. In its posthearing brief, Ryder asserts that RDS is the parent of DPD. I consider it un- necessary to resolve this issue-Board jurisdiction over DPD is separately established by the pleadings, and DPD and RDS share common ownership, control, su- pervision, and the same facility in Memphis. With respect to RSI, there is no evidence of com- merce facts on which Board jurisdiction is normally predicated. The admission in the answer that RSI is an employer engaged in commerce was clarified by Ryder counsel at the hearing. Although there are numerous Board decisions asserting jurisdiction over various Ryder companies, they appear to be operating companies, and do not involve the parent holding company. Although I may take judicial notice of such decisions, this does not resolve the matter. The record thus discloses no independent commerce facts pertaining to RSI, and includes a specific denial that it is engaged in "transportation activities." Although the record does establish that RDS and possibly DPD are wholly owned subsidiaries of RSI, there is no other evidence of the relationship between these companies and RSI, particularly with respect to control of labor re- lations. Under these circumstances, I conclude that the evidence is insufficient to establish Board jurisdiction over RSI,8 and shall recommend that the complaint be dismissed insofar as it relates to this Respondent. G C Exh 1(q), par 9 G C. Exh 1(v), par 9 Id , pars 3 and 4 G C Exh 1(q), par 7, G C Exh 1(v), par 7 8 Miami Industrial Trucks, 221 NLRB 1223 (1975), Milo Express, 212 NLRB 313 (1974) RYDER SYSTEM 1027 H. THE LABOR ORGANIZATIONS INVOLVED The pleadings establish and I find that the Teamsters and District 2-A are labor organizations within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background-Diesel Recon and Ryder Diesel Recon Company , an employer named in earlier charges in this proceeding, is engaged in the manufacture and reconditioning of diesel engines and components in the city of Memphis. It distributes these products under the brand name Cummins to distributors located throughout the United States and Canada. It has two fa- cilities in Memphis, a remanufacturing plant on Pershing Street and a distribution center on Breedlove Avenue. Prior to 3 December 1983 Diesel Recon had been using its own truckdrivers for transportation of its prod- ucts. In October 1972 Local 667 was certified as the rep- resentative of all over-the-road truckdrivers employed by Diesel Recon at its Memphis location .9 In 1980 Diesel Recon and Local 667 entered into a collective-bargaining agreement covering these drivers, effective from 1 De- cember 1980 to 30 November 1983.10 Diesel Recon did not utilize its own trucks for distri- bution, but, rather, leased them from RTR. In early 1983 Diesel Recon commissioned RDS to study Diesel Recon's transportation system, and informed the Team- sters of this fact. By letter dated 8 September 1983, Diesel Recon advised the Teamsters that it had received the RDS recommendations, and invited comment from Local 667.11 On 6 October 1983, Diesel Recon informed the Teamsters that it had decided to "discontinue its trucking operation," and invited negotiations over the effect of this decision. i 2 On 12 October, Diesel Recon entered into a transportation agreement with DPD, whereby the latter undertook to provide transportation services for Diesel Recon, including the supply of vehi- cles and drivers. 13 According to Operations Director Johnson, RDS and DPD always use the equipment of their sister division, RTR. The transportation agreement provided that DPD would have control of the drivers. Ryder began performing services under the transporta- tion agreement on 3 December 1983, and thereafter re- ferred to them as Diesel Recon account services. Diesel Recon and the Teamsters signed a supplemental agree- ment extending the term of their collective-bargaining agreement from 30 November to 3 December 1983.14 Diesel Recon's drivers were terminated about this time. B. Ryder's Recruitment of Out-of-Town Drivers 1. Summary of the evidence a. Crowley 's Ohio activities Ryder filled its initial complement of drivers for the Diesel Recon account by transferring existing Ryder em- ployees from another account (the Sunbeam account), hiring certain former Diesel Recon drivers , obtaining drivers from off the street, and bringing applicants in from out of town. As appears hereinafter, Diesel Recon drivers began making applications with Ryder in No- vember. Ryder's hiring of out-of-town applicants was initiated by David Crowley. The General Counsel contends that Crowley was an agent of Ryder, while Ryder argues that he was simply a Ryder employee and a member of District 2-A, engaged in protected activities. Crowley did not testify at the hearing. The evidence concerning Crowley's out-of-town ac- tivities is found in the testimonies of Charles R. Ward and Danny K. Spradlin. Ward was living in Ironton, Ohio, at the time he first heard of the possibilities of em- ployment by Ryder. A Bill Click called Ward and said that Dave Crowley wanted "to get 12 pretty big boys that could drive a truck and take care of theirself [sic] to come to Memphis and go to work." Ward met Crowley about 18 November 1983 in Ryder's shop in Columbus, Ohio. Crowley introduced himself to Ward as a "busi- ness representative" of Ryder, "or something like that," and told Ward that he was "guaranteed" a job if he went to Memphis. Ward asked Crowley whether he was "sure" because Ward did not have "money to go on." Replied Crowley, "I guarantee you a job." Spradlin, a resident of Catlettsburg, Kentucky, testified that he received a call from Click, who asked him whether he would like a "union job" working for Ryder in Memphis. Click specified that the Union was District 2-A, and there is evidence in the record that Crowley was a steward for that union. Spradlin traveled to Ryder's facility in Columbus on the same day and met Crowley. The latter said that he would transport Spradlin and others down to Memphis, where they would be interviewed for a job with Ryder Distribution Systems. Crowley added that, on his recom- mendation, the applicants would have a job. Ward, Spradlin, and four other applicants were then driven to Memphis by Crowley in a rented van. Crowley told Ward that Ryder was paying for the van, and Ward testified that he stayed at a motel at no expense to him. The testimonies of Ryder Executives Johnson and Raper and Ryder's records establish that Ryder paid for the lodging and meal expenses of applicants brought down by Crowley and reimbursed Crowley for transportation expenses. 15 B Stipulation of the parties, G C Exh 3 1° G C Exh 5 11 R Exh 1 12 R Exh 2 13GC Exh 4. 14 G C Exh 6 b. The meeting with Ryder on 19 November When the van arrived in Memphis, the six applicants were taken to a Ryder location on Riverside Drive on 's G C Exh 27(e) 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD President's Island. According to Spradlin, they met Myles Raper, senior operations manager, Dick Perry, then operations manager, and Jim Hulsey, operations su- pervisor.'6 Spradlin affirmed that Perry told the applicants that they were all guaranteed a job. Although the applicants took a voice stress analysis (VSA) test, the guarantee came prior to taking the test. Perry, who was not a Ryder employee at the time of his testimony, denied guaranteeing anyone a job. He contended that he said he would let the applicants know. Ward testified that he was "hired" on the day he arrived in Memphis, 19 No- vember. Spradlin stated that Perry told the group that "they would have to take it to the NLRB," and that Ryder was going to hire 10 former Diesel Recon drivers to "keep the NLRB off his ass." Perry was not going to hire the "top 10" because they were "troublemakers"- they "hogged the board" and made more money than other drivers. Perry's testimony on this point does not directly address the issue of what he told the applicants. He was asked generally whether any limitations were placed on the number of Diesel Recon drivers who would be hired and denied it. Sharon Pelt, then a Ryder clerk, testified that Johnson, Raper, and Perry were dis- cussing hiring in the Riverside Drive office prior to taking over the Diesel Recon account, and that Myles Raper said that eight Diesel Recon drivers would be hired. As in Perry's case, Raper did not directly deny that he said this. He did deny that there was any "quota" for any group, but added that he did not intend to hire all the Diesel Recon drivers-if he did so, he would have ended up with "the same driver force and some of the same problems I'm sure they had." He wanted the best drivers he could find, Raper contended. Operations Director Johnson said that he had no knowledge of any limits being placed on the number of Diesel Recon driv- ers hired. c. Crowley's solicitation of District 2-A cards and subsequent meetings with Ryder Spradlin and Ward returned home after the first inter- view-Ward in the rental van-and then came back to Memphis. Spradlin met Crowley twice on the way back, the first time in a Union-76 truckstop in Sonora, Ken- tucky. There were about six applicants present. Crowley told them that they were guaranteed jobs, and that the payscale would be 28 cents per mile. The second occa- sion was in a restaurant outside Memphis. The "11 driv- ers from Spradlin's region" were there. Crowley gave Spradlin a District 2-A authorization card, and Spradlin signed it. 17 Ward testified that Crowley passed out District 2-A authorization cards to 12 applicants who were eating breakfast, and told them that initiation fees would be waived. Ward signed a card at that time.' 8 Although it 18 The pleadings establish that Raper, Perry, and Hulsey were supervi- sors within the meaning of the Act 17 G.C Exh 64(ff) 18 G.C. Exh 64(n). is dated 1 December 1983, Ward insisted that he signed it on 18, 19, or 20 November. He also testified that he signed the union card prior to his formal employment ap- plication, which is dated 21 November.' 9 There are 42 District 2-A cards in evidence, including Crowley's, all dated 1 December 1983.20 Ward signed a checkoff au- thorization for District 2-A, which is also dated 1 De- cember 1983.21 He testified that he signed this at the breakfast meeting. Sharon Pelt testified that Crowley brought a second group of applicants to the Riverside Drive location a few days after the first group, on Wednesday before Thanks- giving 1983, i.e., 23 November. Pelt was present during the first two meetings, but was not present when Crow- ley, she asserted, brought a third group to Ryder. Pelt testified about statements made by Operations Di- rector Johnson or Senior Operations Manager Raper. Al- though it is not entirely clear from Pelt's testimony whether she is referring to the first or second meeting, I conclude that she referred to the second meeting. I make this inference based on the testimony of Spradlin that suggests that only Perry spoke at the first meeting. Pelt testified that either Johnson or Raper told Crow- ley that the applicants he brought down were guaranteed jobs. Pelt apparently qualified this testimony so as to in- clude only applicants who passed Ryder tests, but then reasserted that the applicants were promised jobs before they took the tests. Pelt affirmed on cross-examination that some applicants were given jobs without taking written or road tests. She also testified that not all of the men accepted jobs. Johnson and Raper denied guarantee- ing anyone a job. Pelt testified that either Raper or Johnson asked Crowley whether the men had signed union cards, and that Crowley answered affirmatively. She repeated this testimony on cross-examination. Counsel asked her to ex- plain the 1 December date on Ward's checkoff authoriza- tion, in light of "the 17th, 18th, or 19th, whatever that date was" that Crowley was asked about union cards. Pelt did not state specifically the date she heard Raper or Johnson ask Crowley whether the men had signed union cards. In response to a leading question on cross- examination , she stated that it was Johnson. Both John- son and Raper denied asking Crowley this question. Pelt further affirmed that, about 3 December, she asked Operations Manager Perry, "Why are all these drivers coming in from up north, when you've so many applications here for drivers wanting jobs?" Perry re- plied, according to Pelt, that this way Ryder was sure of getting the union that it wanted. Perry denied saying this to Pelt. 2. Factual analysis It is apparent from the unrebutted testimonies of Ward and Spradlin that David Crowley, a Ryder employee, told persons living in locations other than the Memphis area that they were guaranteed jobs with Ryder in Mem- ' 9 G C Exh 17(hh) 20 G C Exhs 64(a)-64(pp) 21GCExh9 RYDER SYSTEM phis, and that it would be a District 2-A union job. Crowley transported a group of about six applicants down to Memphis about 19 November 1983, paid for their lodgings and food, and was compensated for this by the Company. Crowley made additional trips with addi- tional applicants. With respect to the conflicting evidence on whether Operations Manager Perry guaranteed the applicants jobs prior to the time that they filed formal applications and took the necessary tests, I credit Spradlin's testimo- ny, partially corroborated by Ward. Spradlin had excel- lent recall of the meeting, was a truthful witness, and I consider him to be more reliable than Perry. Such a guarantee by Perry is consistent with the fact that Ryder paid for the expense of bringing the applicants down to Memphis. I have considered evidence that Ryder denied Spradlin a transfer, apparently promised by Crowley, and conclude that this did not cause bias on Spradlin's part. I accept Spradlin's testimony that Perry said "they would have to take it to the NLRB," and that Ryder was going to hire 10 former Diesel Recon drivers "to keep the NLRB off his ass." Perry did not deny this latter statement. Although he denied that there was any limit on the number of Diesel Recon drivers to be hired, he did not deny making the statement attributed to him at the 19 November meeting. Raper candidly admitted that Ryder would have ended up with "the same prob- lems" if it had hired all the Diesel Recon drivers. It is obvious from Ward's and Spradlin's unrebutted testimonies, and from the documentary evidence, that Crowley solicited signatures on District 2-A authoriza- tion cards, and at least one checkoff authorization, in a restaurant outside Memphis. I infer from Spradlin's and Ward's testimonies that this took place a few days after the 19 November meeting on Riverside Drive, but prior to the 23 December meeting at that location. The 1 December dates on the cards do not compel a contrary conclusion. In the first place, there is no au- thentication from Crowley or any other witness that all the cards were signed on 1 December. Crowley did not testify. However, as appears hereinafter, at an orientation meeting held on 1 December, Crowley told Operations Director Johnson that he had obtained signatures on 30 cards. There are 42 District 2-A cards in evidence. If what Crowley told Johnson was true, when were the other 12 cards signed? I credit the General Counsel's un- rebutted evidence concerning the date that Ward and some other applicants signed District 2-A cards. My conclusion concerning the probable date that the cards were signed is consistent with Pelt's testimony that either Raper or Johnson asked Crowley whether the men had signed union cards. As indicated, I infer that Pelt was referring to the 23 November meeting on Riv- erside Drive, which took place after the signing of Dis- trict 2-A cards, and I credit her testimony that either Raper or Johnson, at that meeting, asked Crowley whether the men had signed cards. I also credit Pelt's testimony that either Johnson or Raper told Crowley that the men he brought down were guaranteed jobs. This is consistent with the similar state- ment made by Perry at the first meeting. I have carefully 1029 considered the differences in Pelt's testimony on direct and cross-examination noted above. I conclude, as Pelt finally reaffirmed, that the job guarantees were given prior to the taking of any tests. This is consistent with the events which took place at the first meeting. I further credit Pelt's testimony that, about 3 Decem- ber, Operations Manager Perry told her that Ryder was hiring drivers from the North in order to be sure of get- ting the Union that it wanted. Pelt appeared to be a more truthful witness than Perry. Ryder terminated Pelt in March 1984, and the Compa- ny argues that she is therefore biased against Ryder, and should not be credited On the contrary, neither the sub- stance of Pelt's testimony nor her demeanor at the hear- ing suggests any bias. She was a truthful witness. C. The Hiring of the Crowley Referrals The testimonies of Ward and Pelt, Ryder's records,22 and Ryder's position set forth in its posthearing brief es- tablish that Respondent hired the following individuals from the North, recruited by Crowley, with the employ- ee's residence and date of application as indicated: Robert Boggs, Ironton, Ohio, 21 November 1983;23 Wil- liam Click, South Point, Ohio, 19 November 1983;24 Gary Green, Millersport, Ohio, 26 November 1983;25 Donald Howard, South Point, Ohio, 26 November 1983;26 Orvil Hutchins, Laurelville, Ohio, 19 November 1983;27 William Powell, Washington, Pennsylvania, 26 November 1983;28 Ernest Preston, Utica, Ohio, 19 No- vember 198329; Bernard Puffett, Delphos, Ohio, 21 No- vember 1983;30 William Riffe, Wurtland, Kentucky, 21 November 1983;31 Danny Spradlin, Catlettsburt, Ken- tucky, 21 November 1983;32 Charles Ward, Ironton, Ohio, 21 November 1983;33 and Marvin L. Mays, Del- phos, Ohio, 19 November 1983.34 Ward testified that these 12 drivers were known as the "Dirty Dozen." Ward's employment application indicates that he had been convicted of a felony35 and Senior Op- erations Manager Raper testified that neither he nor any other Ryder executive asked Ward about the nature or date of the felony. Significant questions remained unan- swered on Ward's VSA examination, and Raper did not know the reason. Company forms show that two appli- 22 R. Exh 8 23 G C Exh 17(m) 24 GC Exh 17(mm) 25 GC Exh 17(g) 26 GC Exh 15(n) 27 GC Exh 17(n) 28 GC Exh 17(q) 29 GC Exh 17(c) 30 G C Exh 17(y), although Puffett previously worked at another Ryder location, his application indicates that he was referred to the Memphis location by Crowley, and Ward identified him as I of 12 driv- ers brought down by Crowley 31 G C Exh 18(uuuuu) 32 G C Exh 17(bb) 33 G C Exh 17(hh) 34 G C Exh 15(t) Mays had previously worked for Ryder Although his employment application for Diesel Recon indicates that he was a "transfer from Detroit," and had been recommended by another individ- ual, Ward identified him as one of the 12 individuals brought down by Crowley 35 G C Exh 17(hh) 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cants admitted stealing merchandise from a prior em- ployer,36 two admitted prior use of drugs or pep pills,37 while no telephone reference checks were made on five applicants because of Crowley's recommendation of them.38 Two applicants admitted having previously been fired or asked to resign,39 and two failed to answer sig- nificant questions.4O One of them had four speeding vio- lations and an accident during an 18 -month period when he was employed by Ryder.4 t D. Hirings Off the Street Ryder hired about 23 drivers off the street on the startup date.42 One of these was Kenneth Barnhill.43 In completing his application, Barnhill listed three speeding violations and one illegal turn for the 1-year period ending 10 June 1982, and another illegal turn in January 1983. He admitted that he "smoked grass" in high school. Operations Manager Perry signed a form stating that no check was made on Barnhill because Ryder needed drivers by 3 December. On 20 December 1983 RTR wrote Perry a letter citing these violations and a "jacknife accident" in February 1983, and advised DPD that Barnhill's further use of RTR equipment would be considered a breach of the agreement between RTR and DPD.44 Thereafter, Barnhill was ordered to attend a "defensive driving course," and did so. He transferred to another Ryder location in July 1984.45 Ryder hired applicant Michael Jordan on the startup date, despite prior notice from Jordan that he had three speeding violations in the 8-month period ending in No- vember 1983. On 20 December 1983 RTR sent DPD a letter citing these violations and two accidents, and re- questing that Jordan not be allowed to operate RTR equipment in the event of another occurrence of proper- ty damage, personal injury, or "reckless, careless, or abu- sive handling of a motor vehicle." Jordan was required to attend a driving course. His South Carolina driving privileges were suspended in January 1984 and subse- quently reinstated. A medical report shows that Jordan was returned to work, after an injury, in October 1984.46 The Company hired applicant Lewis D. Farrell on the startup date, despite prior notice of two speeding viola- tions, and a VSA test showing that he had stolen mer- chandise from a former employer, and had used pep pills 38 Gary Green, G C Exh 17(g), William Click, G C Exh 17(mm) 97 Gary Green, G C Exh 17(g), Danny Spradlin, G C Exh. 17(bb) 38 Robert Boggs, G C Exh 17(m), Orvil Hutchins, G C Exh 17(n), Ernest Preston, G C Exh 17(c), William Powell, G C Exh 17(q), and Donald Howard , G C Exh 15(n) 38 Danny Spradlin, G C Exh 17(bb), William Click, G C Exh 17(mm) 48 Charles Ward, G C Exh 17(hh), Robert Boggs, G C Exh 17(m) 41 Marvin L Mays, G.C Exh 15(t) 43 R. Exh 8 43 Although Barnhill's name appears on R Exh 8, purportedly de- rived from its records, there is no indication of a hiring date However, a "Personnel Profile" of Barnhill, maintained as a business record by RDS, a letter from RTR to RDS dated 20 December 1983 protesting Barnhill's use of RTR equipment (G C Exh 17(e)), and a summary of Ryder records introduced by the General Counsel (G C Exh 61(a)), clearly show that Barnhill was hired on 3 December 1983 from the street 44 G C. Exh 17(e) 45 G C Exh 61(a). 48 G C Exh 15(q) to stay awake while driving. RTR sent Perry a warning letter concerning Farrell on 20 December 1983, and a second letter on 27 January 1984. It cited Farrell's driv- ing record, including an accident in January 1984, and said that Farrell's continued use of RTR equipment would be considered a breach of their agreement. There- after, Farrell was discharged.47 On 3 December 1983 the Company hired Jimmy Lee George,48 despite his notice of two speeding violations in 1981 . His official driving record shows six such violations and a collision in the 13-month period ending June 1982. The only questions which he answered on his VSA examination were his name, the State where he resided and was born, the cur- rent year, and the day of the week. On 20 December 1983, RTR sent Perry a letter warning that George's fur- ther use of RTR equipment would be considered a breach of their agreement. On 21 December, the day after the date of this letter, George was involved in an accident in Memphis, and, in March 1984, another acci- dent in Baltimore. RTR sent Perry another warning letter on 30 March 1984, and, thereafter, George was dis- charged.49 Senior Operations Manager Raper testified that Ryder has minimum safety standards for drivers, which apply equally to hiring or retaining drivers. Three or more ci- tations involving speeding or accidents during a 3-year period make a driver "very questionable," and warrant denial of employment. Raper testified that Ryder has dis- charged, and has denied employment to, drivers because of failure to meet these standards. This testimony is not supported by the objective record. E. The Sunbeam Account Drivers-Harold Baker 1. Transfers from Sunbeam to Diesel Recon Ryder had an account called the Sunbeam account at Memphis, for which it performed transportation services as in the case of the new Diesel Recon account. Ricky Sturdivant, a witness for the General Counsel, testified that he had been assigned to the Sunbeam account, and that another employee, Lavelle B. Cross, served as stew- ard for District 2-A in the Sunbeam account. I infer from this that District 2-A represented Ryder employees in the Sunbeam account at times when the Teamsters repre- sented Diesel Recon employees. According to Sturdi- vant, there were about 12 Ryder drivers assigned to the Sunbeam account. Half of those drivers were transferred by Ryder to the new Diesel Recon account at the time Ryder began operations. Senior Operations Manager Raper testified that he was approached by Sunbeam drivers requesting transfer to the Diesel Recon account Ryder officials Raper, John- son, and Perry decided that transferees from Sunbeam would get top seniority in the new Diesel Recon ac- count. Jim Hulsey, Ryder's supervisor for the Sunbeam 47 G C Exh 17(h) 48 Jimmy Lee George, residing at 1320 So Greer, Memphis, Tennes- see, is not the same person as James Leslie George, residing at 3160 Guernsey, Memphis, Tennessee The latter individual, a former Diesel Recon driver, was hired by Ryder and is discussed infra 4 8 G C Exh 17(i) RYDER SYSTEM account, was transferred to the Diesel Recon account as operations supervisor, and Sharon Pelt, a clerk with the Sunbeam Appliance Company, was hired for work on the Diesel Recon account. One of Ryder's exhibits, purportedly based on its records, states that five Sunbeam drivers were trans- ferred to the Diesel Recon account at the time that Ryder began operations on 3 December,5O and Sturdi- vant affirmed that a sixth Sunbeam driver51 was also transferred at that time. The Sunbeam account closed in the spring of 1984, and other drivers transferred from it into the Diesel Recon account at that time in May and June 1984.52 Other employees were transferred into the Diesel Recon account between the time that Ryder began oper- ations on 3 December and the time that the Sunbeam ac- count was closed. Thus, Arland G. Osborn was trans- ferred on 15 December 1983.53 Another transferee, whose name does not appear on Ryder's summary,54 is David L. Walls. He was hired on 4 April 1983, and assigned to the Sunbeam account. His application reveals that he had two speeding violations since 1980 His driving record shows that he struck a fixed object 10 days after being hired, and had another speeding violation in June 1983. A rating scale assessed him as "questionable." He made application for transfer to the Diesel Recon account on 6 January 1984,55 and Perry's approval states that no reference check was made on him.56 Walls was transferred to the Diesel Recon account on 7 January 1984,57 was involved in an accident in June 1984, and received a warning letter.58 On 13 August 1984 he was terminated.59 2. The hiring of Baker for the Sunbeam account a. Summary of the evidence Harold Baker had been employed by Diesel Recon as a driver since 1977. For the 3-year period prior to Diesel Recon's termination of its own transportation depart- ment, he had been the Teamsters' steward. News of the pending takeover of operations by Ryder circulated among Diesel Recon drivers prior to the effective date. Baker filed an application for employment with Ryder on 1 November 1983,60 and was interviewed and given a VSA test. Senior Operations Manager Raper testified that he interviewed Baker, and decided to reject his application because of Baker's "attitude"-during the interview, 50 Lavelle B Cross, Buford L Moore, Charles Perry Jr., Ricky D Sturdivant, and David R Tedford (R Exh 8) 51 Lonnie Edwards R Exh 8 states that Edwards was employed in Diesel Recon on the startup date, but asserts that he was transferred from "RDS " I credit Sturdivant 52 R Exh 8, pp 8 and 9 53 Id at 5 54 Ibid 55 G C Exh 17(d) 56 Ibid 54 G C Exh 61(b) 58 GC Exh 17(d) 55 GC Exh 61(b) 80 G C Exh 15(b) 1031 Baker inquired about pay rates and bid runs. Raper denied telling Baker about his decision. Richard E. Roser, one of the alleged discriminatees, testified that during his last week of employment with Diesel Recon, office personnel and drivers told him that Ryder had made its selection of eight drivers, and that this was all they were hiring. According to Roser, Harold Baker was in the office at that time. Baker testified that he returned from his last run with Diesel Recon on 2 December 1983, and that Hulsey and Perry told him at that time that he had not been selected for the Diesel Recon account, but that he could work on the Sunbeam account, because some of the Sunbeam drivers were transferring to Diesel Recon.6 i Sharon Pelt affirmed that she overheard Perry tell Hulsey: "Let's have Brad [Calloway]62 hire him [Baker] for the Sunbeam account, because he was the union steward for Diesel Recon, and that would probably keep some of the flack off of our back." Hulsey denied that Perry said this. Baker stated that he began work for Ryder on the Sunbeam account about 5 December 1983, and later transferred to the Diesel Recon account. The General Counsel's and Ryder's compilations of records show that Baker was first employed by Ryder on 14 May 1984.63 However, Pelt corroborated Baker's testimony that he was hired for the Sunbeam account, and his official em- ployment record shows that he was originally hired on 5 December 1983 and transferred on 14 May 1984.64 Baker affirmed that he was employed as a casual driver after being transferred to the Diesel Recon ac- count. About 4 to 6 weeks thereafter, he asked Hulsey to be put on as a permanent employee because he could not get any insurance as a casual driver. Hulsey replied that Baker had a good record, and that Hulsey wanted to put him on as a permanent employee. However, Baker had been a union steward, and "they" had not wanted to retain him from the beginning. Nonetheless, Baker had been hired and, about the time of this conversation, began serving his probationary period as a permanent employee. b. Factual analysis Baker was a truthful witness, and was partially cor- roborated by Pelt and by the documentary evidence con- cerning his hiring date. Pelt was also believable, and the testimonies of these two witnesses were only partially contradicted by Hulsey. I credit Baker and Pelt. Baker is one of the alleged discriminatees. 61 Ryder relies on this evidence to support its position that, prior to the startup on 3 December 1983, Baker had notice that he was not going to be hired, and that his claim is barred by Sec 10(b) of the Act As indicated above, the original charge in Case 26-CA-10714 was filed on 26 April 1984, alleging violations of Sec 8(a)(2) and (5), and "other acts" of interference with employee rights The amended charge, alleging vio- lation of Sec 8(a)(2) and (3), was filed on 30 May 1984 62 Calloway succeeded Hulsey as supervisor of the Sunbeam account. 63 G C Exh 61(a), R Exh 8 64 G C Exh 15(b) 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. The Diesel Recon Drivers 1. The drivers hired by Ryder Diesel Recon had approximately 41 drivers at the time it discontinued delivery of its products.65 Of these, about eight were hired by Ryder for work on the Diesel Recon account on the startup date.66 One of them was James L. George. He filed an application on 2 November 1983, which indicated that he had surgery on his back in 1976, 1978, and 1979.67 George informed Senior Operations Manager Raper, during an interview, that he had had three discs removed. He was required to take a physical examination and thereafter was hired. 2. The alleged discriminatory refusals to hire-the employment procedure a. The employment applications (1) Summary of the evidence As indicated above, the complaint alleges that Ryder discriminatorily failed to hire 32 Diesel Recon drivers. In its posthearing brief, Ryder advances several reasons for its failure to hire particular drivers. With respect to 12 of them,68 the Company asserts that the individuals either failed to file applications for employment or, after having done so, failed to call back for an interview. There is conflicting evidence on the application proc- ess. A host of witnesses for the General Counsel testified in substance that they obtained Ryder employment appli- cations in November 1983 from a young lady at Ryder's Riverside Drive office, completed and submitted the ap- plications to her, and were told by her that Ryder would get in touch with them if necessary. Most of the wit- nesses did not remember the young lady's name, but two of them89 said that her first name was Linda. Almost all the applicants testified that they had the same address and telephone number at the time of the hearing as they had on the date when they submitted their applications. The latter contain such addresses and telephone numbers. Ryder contends that many of these applicants were not hired because they failed to call back for an interview, and that it was under no obligation to seek them out. Senior Operations Manager Raper testified that Ryder told Diesel Recon management personnel, early in No- vember, that its drivers could pick up application forms at Ryder's Riverside Drive location. Ryder had an em- ployee named Linda at that location, and instructed her to tell Diesel Recon applicants to fill out an application if interested in a job, and later get in touch with the Company to arrange an interview. However, an appli- cant "off the street" would not be given an opportunity to arrange an interview-the Company might not even 65 G C Exh 7 66 Billy G. Davis, Carroll D Etheridge, James L George, LeRoy McElroy, Zane G Murphy, Olin D. Purvis, James D Tarver, and Dale E Wadley (R Exh 8) 87 G C Exh 15(1) 69 Richard Roser, David Elmore, Allen Thomas, Larry Elmore, Carl Briscoe, William Shillingburg, Marshall Sexton, Willie Jones, Tommy Bracken, Franklin R Barble, Ron Galligher, and Jerry Ferguson 69 Richard Roser and Carl Briscoe want to talk to him after reading his application. Raper said that he did not know whether "Linda" followed these instructions. Linda Averill, a witness for Ryder and a former em- ployee, testified that she worked in the Riverside Drive office in November 1983 passing out employment appli- cations. She worked there 5 days a week, was not re- placed by any other Ryder employee, and did not know of any other Ryder employee who passed out employ- ment applications. Averill testified on direct examination that it was Ryder's policy to instruct applicants to get back in touch with her after submitting an application. However, on cross-examination , Averill could not remember who it was that gave her these instructions. Asked whether she thought up the instructions herself, Averill again replied that she could not remember. Averill further affirmed that she did inform applicants to call back to arrange an interview. She could remem- ber the name of only one applicant.' ° The witness assert- ed that she kept a legal pad, and wrote down the names of applicants who called for interviews and the time. If she did not know the schedule of the company executive conducting the interview, she would tell the caller to call again in a day or two. Averill doubted that she kept a record of such calls-cases where she did not know the schedule of the interviewer-and testified that it was possible for such calls to have been made without any record having been kept. In addition, Averill testified on direct examination that she had no way of getting in touch with applicants be- cause they were working for Diesel Recon and were fre- quently on the road. On cross-examination, Averill as- serted that she never called the telephone numbers on the applications, and that it never occurred to her that family members of the applicants would be at those tele- phone numbers. (2) Factual analysis As indicated, the General Counsel has elicited abun- dant evidence concerning Ryder's employment practices when Diesel Recon applicants were involved. After sub- mitting an application, the applicant was told that Ryder would get in touch with him. Averill's testimony is insufficient to offset the weight of the General Counsel's evidence on this issue. Averill's assertions that she could not remember whether she thought up Ryder's policy herself and that it never oc- curred to her that she could reach the family of an appli- cant by calling the telephone number on the application form are incredible. Her testimony admits laxity in rec- ordkeeping which, in many cases, would have prevented a Diesel Recon applicant from completing the asserted requirements for an application. Averill's demeanor was not that of a trustworthy witness. Raper's testimony adds nothing to the case because he admittedly did not know whether Averiil followed the asserted instructions to her. Accordingly, I credit the General Counsel's evidence, and find that, insofar as Diesel Recon applicants were 10 Zane Murphy, who was hired RYDER SYSTEM 1033 concerned, Ryder's policy, on receipt of an application, was to tell the applicant that Ryder would get in touch with him. Although most of the Diesel Recon applicants could not identify the "young lady" with whom they dealt, I further find-based on Averill 's admission that she was the only one involved in the application proc- ess-that in each instance it was Averill. b. The voice stress analysis (VSA) tests As part of its employment procedure , Ryder conduct- ed a voice stress analysis (VSA) test of job applicants. As explained by Ryder witness Charles Leppla , this is es- sentially a lie-detector test and utilizes equipment, includ- ing a computer, similar to that used in polygraph exami- nations. The difference is that the VSA test measures only one bodily function-"the tremors in the voice"- instead of the three functions measured in polygraph ex- aminations-blood pressure, galvanic responses, and breathing. As explained by Leppla, the subject speaks into a microphone and is asked to answer standard questions on a preprinted form with yes or no answers . Certain innoc- uous questions are asked to determine the normal tremor in the subject's voice. A significant increase in this normal level-on critical questions-is deemed to consti- tute evidence of deception . Leppla agreed that emotions other than fear of being caught in a deception could trig- ger an increased voice tremor level. According to Leppla , the equipment gives an operator the option of determining significant voice tremor vari- ations either by visually watching "the needle," or by causing the results to be recorded on a chart . In the case of the few Diesel Recon applicants whom he inter- viewed, Leppla only watched the needle , i.e., he did not make any recordings because they are time-consuming. In investigation of crimes, Leppla stated , he uses "the charts." Otherwise, "there is a cassette in there that records what I'm doing and what the subject has re- sponded to, but I do not analyze that. I do that on the immediate response , the way the equipment was de- signed to do." When a subject's answer is given with a higher-than- normal tremor-assertedly indicating deception-the op- erator normally asks the subject the reason, and receives an explanation, e.g., that the subject is on medication (previously denied) for a stated reason . The operator then writes this explanation on the back of the preprinted form, rephrases the question to incorporate this excep- tion, and asks the question again. Although Leppla's ex- planation is not entirely clear, it appears from the context of his testimony that the computer is turned on only during the yes and no answers, but not during the expla- nations. Ryder's VSA test thus consisted of two parts, record- ed "lie-detector" questions and, when these allegedly in- dicated deception, unrecorded statements , or "admis- sions," assertedly made by the subject and written on the back of a preprinted list of questions by the operator. Leppla's office is in Orlando, Florida, and he was present in Memphis for only a few VSA tests . He trained Ryder Executives Raper and Perry to conduct part of the tests in his absence . This consisted of a tape record- ing of answers to the set questions , which was then mailed to Leppla for analysis of "deception." In addition, Raper and Perry assertedly obtained the statements from the applicants, and wrote them down on the back of the questionnaire. The General Counsel objected to any testimony from Leppla about "deception" in answers on the ground that the recordings themselves, the best evidence , were de- stroyed by Ryder.71 Although Leppla stated that he made his "deception" findings during the interviews which he conducted only on the basis of visual observa- tion of "the needle," I conclude from his testimony that in each case there was in fact a "cassette," or recording, of what the subject was saying, but that no "chart" was ever made. Further, it is clear that Raper and Perry sent Leppla recordings of the tests which they administered. A far greater number of cases involved asserted admis- sions made to Raper or Perry during the interview which was a part of the VSA test , and which were writ- ten down on the back of the questionnaire . Almost in- variably, neither Raper nor Perry had any independent recollection of the applicant or the reason he was not hired, and relied on such notes or other documents. c. The recordings and VSA tests subpoenaed by the General Counsel On 7 September 1984 the General Counsel served on Ryder a subpoena duces tecum requiring production of all books, records, writings, and recordings showing the reasons why Ryder failed to hire former Diesel Recon drivers, and the reasons why it did hire other drivers. A copy of this subpoena was mailed to Ryder counsel.72 In her posthearing brief, the General Counsel asserts that another subpoena duces tecum was served on Ryder on 11 December 1984, requiring it to produce the VSA tests and recordings of certain identified Ryder employ- ees. Some of the VSA tests have been received in evi- dence. There was an extended colloquy between counsel, extending over several hearing dates, concerning alleged- ly missing recordings and test forms. At the 15 January 1985 hearing , the General Counsel asserted that Ryder counsel, during the prior recess, had submitted copies of some of the subpoenaed documents, but did not know where the originals were. Ryder coun- sel stated that they were found in his office by accident. Senior Operations Manager Raper testified that he was aware of the subpoena , had turned over all VSA tests of which he was aware, and knew nothing about the re- cently produced copies. Although these copies were marked for identification'73 the General Counsel did not offer them in evidence. Charles Leppla testified that he normally keeps the tape recordings, but that the test forms are kept else- where. The recordings are routinely destroyed 1 year after completion of the tests, and all the recordings de- scribed in the General Counsel's subpoena had been erased. The General Counsel argues that an adverse in- 71 See subsec c, infra 72 G.C Exh 66 7 ' G C Exhs 65(a)-65(r) 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ference should be drawn from the fact that the tapes were destroyed after having been subpoenaed. In her pgsthearing brief, the General Counsel argues that the refusal to submit the purported copies of the missing VSA tests is justified by Federal Rule of Evi- dence 1004(1),74 and renews her argument that the miss- ing tapes and VSA tests, if produced, "would have re- vealed an even greater degree of disparity" between Ryder's treatment of former Diesel Recon drivers and other applicants than do the documents received in evi- dence. Subsequent to the filing of briefs, Ryder submitted a motion to strike those portions of the General Counsel's brief urging an adverse inference-on the ground that the General Counsel had copies of most of the missing documents, and simply refused to introduce them. In re- sponse, the General Counsel filed an opposition, labeling Ryder's motion a reply brief not permitted by the Board's regulations which contained assertions of fact not in the record. If the latter were deemed to be true, then, the General Counsel submitted, General Counsel's Exhibits 65(a) through 65(r) should be received "for the purpose of showing that the purported copies are unex- plainedly incomplete and that they contain data contrary to Respondent's defense." I deny all such motions and requests. Striking portions of the General Counsel's brief would serve no purpose- would not add to or detract from the record in the case because only answering briefs constitute a part of the record.75 I deny the General Counsel's request to submit Exhibits 65(a) through 65(r) because the requested sub- mission, at this time, would unnecessarily delay an al- ready protracted proceeding. The General Counsel's ar- gument for an adverse inference is considered infra. 3. Alleged deficiencies in employment applications-the November applicants who were not hired a. Thomas, Briscoe, Shillingburg, Sexton, and Bracken The evidence shows that five Diesel Recon drivers, each of whom was a member of the Teamsters, filed written employment applications with Ryder in the first week of November 1983 and were never employed.76 Each of them submitted his application to a female em- ployee of Ryder who told him that Ryder would be in touch with him. I find that this individual was Linda Averill. Allen Thomas asked about his chances for em- ployment, and noted that he had another opportunity for a job. Averill replied that it was best that he accept this offer. Each applicant except Thomas had the same ad- dress and telephone number at the time of hearing that he had at the time of application . Thomas' address re- 74 Fed.R Evid. 1004(1) sanctions admission of "other evidence" of an original writing, recording, or photograph if the original thereof has been lost or destroyed, unless "the proponent" did so "in bad faith " The Gen- eral Counsel has not argued that Ryder is the "proponent" with respect to these copies, or that it was "in bad faith " 78 National Labor Relations Board Rules and Regulations, Sec 102.45(b) 48 Allen Thomas (G.C Exh 37), Carl T Briscoe (G C Exh. 39), Wil- liam Shillingburg (G C Exh . 53); Marshall Sexton (G C Exh 45), and Tommy Bracken (G C Exh 43). mained the same, but his telephone number was changed 2 months before his testimony, i.e., about 5 October 1984. None of these applicants was contacted by Ryder. Raper asserted that they were not hired because they did not call back.77 b. Ronnie Galligher Ronnie Galligher, a Diesel Recon driver who was a member of the Teamsters, testified that he obtained a Ryder application from his Diesel Recon leadman and "called the girl at the office." She informed him that the office was closing at noon, and gave Galligher an ad- dress to which he could mail the completed application. He did so. Galligher estimated that this took place a week or two before his final day with Diesel Recon. His employment application, supplied by Ryder pursuant to the General Counsel's subpoena, is dated 12 November 1983.78 Galligher further affirmed that, after mailing his appli- cation "on a Friday," he called the " same girl in the office" and asked for an interview. She told him to come in the following Monday at 9 a.m. On the following Monday, Galligher called the girl to confirm the ap- pointment. She told him that the man to interview him was not yet in the office, but was expected to arrive in a couple of hours. The girl promised to call Galligher, but did not do so. Galligher called again the same day, and was informed that the interviewer probably would not be there that day. Galligher asked for a definite appoint- ment, and was told that he would simply have to come in and wait for the interviewer. This is the last conversa- tion Galligher had with Ryder. There is a handwritten notation on the top of his application-"Did not call back for interview." Raper testified that he wrote this note, and that this was the reason Galligher was not hired. He had no personal knowledge of Galligher's ap- plication. I credit Galligher's uncontradicted testimony, and find that the individual with whom he spoke on the telephone was Linda Averill. c. Franklin R. Barble Franklin R. Barble was a Diesel Recon driver and a member of the Teamsters. His traffic manager told him that Diesel Recon was getting out of the transportation business, and Barble quit about 29 October. The follow- ing week, the first week in November, he heard from Diesel Recon drivers that Ryder was taking applications. Although Barble thought he had another job with a dif- ferent employer, he went to Ryder's office on Riverside Drive the same week. There he met a female employee whom he described as "slim" and between the ages of 25 77 As indicated above, Richard Roser testified that, during the week preceding the takeover by Ryder on 3 December, he was told by some- body in the Diesel Recon office that he was not being hired by Ryder Roser testified that Marshall Sexton , as well as Harold Baker, was in the office at the time. Ryder relies on this evidence to support its position that the 8(a)(3) allegation pertaming to Sexton is barred by Sec 10(b) of the Act Sexton, however, testified that he did not receive any informa- tion from Ryder that he was not being hired 18 G C Exh 56 RYDER SYSTEM and 30. Barble asked the young lady whether Ryder was taking applications for drivers. She replied that they were not taking any more applications, and did not give him an application form. I credit Barble's uncontradicted testimony, and find that the individual with whom he spoke was Linda Averill. Although Barble was employed by another em- ployer after leaving Diesel Recon, the record is unclear whether this date of employment was before or after his visit to Riverside Drive. Ryder contends that Barble was not employed because he did not file an employment ap- plication. 4. Alleged deficiencies in employment applications-the November applicants hired after the startup date a. Richard E. Roser Roser was a Diesel Recon driver and a member of the Teamsters. He filed an employment application on 1 No- vember 1983. Roser was the second driver to apply, and his application shows that he had been given various safety awards.' 9 He submitted it to a secretary named Linda. Hearing from other drivers that he was supposed to arrange an interview, Roser called Linda. She in- formed him that she was not aware of anybody setting up his own interview, and assumed that Ryder would get in touch with Roser if it wanted to talk to him. Roser placed another call to the Riverside Drive office, and asked for the "DPD office" to arrange an interview. He was told that there was nobody in the office at the time, and that "they" knew nothing about it. As shown above in the cases of Baker and Sexton, Roser testified that during his last week of employment with Diesel Recon, office personnel and drivers told him that Ryder had made its selection of eight drivers, and that was all they were hiring.80 I credit Roser's uncontradicted testimony on this issue, and find that the secretary with whom he spoke was Linda Averill. Roser testified that he called Operations Manager Perry a few months later, but was told that they were not hiring, and that it was a "slow season." Still later, Roser called Operations Supervisor Hulsey, and was asked to come out and file (another) application. After a physical examination, but without a VSA test, Roser was hired as a casual driver on 21 May 1984. Roser stated that he asked Hulsey why he had not been hired the first time. According to Roser, Hulsey re- plied that he knew nothing about an original application, that the "roof had been leaking" at Riverside Drive, and that apparently some of the applications had become wet and were thrown away. Hulsey did not deny this testi- mony. He asserted at the hearing that when Roser came in, Ryder "looked everywhere trying to find it [the first application]." Hulsey told Roser that "it could have been consumed by fire, flood, feast or famme." In response to the General Counsel's subpoena, Ryder supplied a copy 49 G C Exh 10 80 Ryder also relies on this testimony in support of its position that the 8(aX3) allegation pertaining to Roser is time-barred by Sec. 10(b) 1035 of Roser's original application, dated 1 November 1983. It shows no evidence of water or fire damage.81 Roser affirmed that, at the time he filed his second ap- plication, Hulsey told him that the Company was very busy and needed drivers. Roser replied that he knew some former Diesel Recon drivers who were unem- ployed, and asked Hulsey whether he should tell these drivers to file applications. According to Roser, Hulsey replied in the negative, saying that Ryder was doing its own hiring. "Frankly," Hulsey added, "we don't want any of the Diesel Recon drivers over here with the Teamster attitude." Hulsey admitted this statement, saying that he referred to a "Teamster-like attitude." Hulsey also acknowledged telling Roser that he did not want any drivers with a "bad attitude." I credit Roser's version of this conversation, partially corroborated by Hulsey. Roser was hired as a casual driver on 21 May 1984, and his status was the same on the last day of the hear- ing, 25 February 1985. J. R. Campbell was also hired on 21 May82 as a casual driver, according to Roser. Carl Cobb was hired on 11 July 1984,83 also as a casual driver, according to Roser. Hulsey told Roser to teach Cobb everything that Roser knew. Roser took Cobb on his first run and trained him. Campbell was made a per- manent employee about December 1984, and Cobb on 7 February 1985, according to Roser. Roser testified that he protested several times about being "passed over" to Ray Hoenig,84 whom Roser identified as a senior Ryder supervisor. Roser was never told the reason that he was not made a permanent em- ployee, whereas other, less senior employees were given that status. The General Counsel's position is that Roser was not hired initially because of his Teamsters affili- ation, and that this unlawful motivation was the reason he was not made a permanent employee. Ryder's posi- tion is that Roser was not hired initially because he did not return for an interview and, in any event , his claim is barred by Section 10(b) of the Act. b. Willie Jones Willie Jones was a Diesel Recon driver and a member of the Teamsters. He had heart surgery in 1981, but thereafter passed a physical examination and returned to work. Jones testified that he filed a Ryder application on 14 or 15 November 1983 with "a receptionist type lady .. . down there in the office." He was later instructed to take a VSA test and did so. A few weeks later, Jones called the receptionist and was told that he had not been select- ed. Jones then appealed to Operations Manager Perry, arguing that he had ranked number 10 out of a class of 200 in a driving school conducted by Ryder, and had been driving with the Ryder system for 10 years. Jones asked why he had not been selected, and Perry replied that Ryder did not have to give him a reason. 81 G C Exh. 10 82 G C. Exh 15(h) 83 G C Exh 15(1) 84 Hoenig's name is spelled "Honney" in the transcript In lieu thereof, I have used the spelling given in Ryder's posthearing brief 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In December 1983 Jones again went back to the office, and asked Perry for work. It was raining and snowing, and Jones was not dressed for work that day. Perry put him on a city run, and Jones worked 14 hours. His throat became swollen, and a doctor told him that he should stay out of the weather for a day or so. Jones called Perry and informed him of this development. "Okay," Perry replied, according to Jones. Jones called a second time on Friday and again the following Monday. On this occasion Perry said that the Company could not use him. Jones called once a week for the month of December, with the same request and the same response. Jones as- serted that he has never been paid for his 1 day of work. Perry agreed that he hired Jones as a city driver some time after the startup. Perry conceded that he had an ap- plication from Jones at the time. Jones never came back after 1 day of work as a city driver, according to Perry. Perry called him, and asked for return of Jones' identifi- cation badge, but Jones failed to return it. Perry then put his application back in the file. The Company contends that Jones was paid for his 1 day of work. Ryder argues in its posthearing brief that Jones' appli- cation had been "misplaced or lost," and that it therefore never considered that application. I reject this argu- ment-it is obvious from Jones' uncontradicted testimo- ny that he did file the application, took the VSA test, and was rejected. Indeed, Perry admitted that he had an application from Jones when he hired him as a city driver in December. I credit Jones', rather than Perry's, testimony concerning the circumstances under which this employment ended. Thus, it is unlikely that Jones, who needed work and pursued it, would have walked off the job without any explanation after 1 day of work. It is more probable, as Jones testified, that he became ill after working in the rain and snow, called Perry with this in- formation, and received an "okay." Jones was a more credible witness than Perry, and the latter did not specif- ically rebut Jones' testimony about his absence from work for medical reasons. 5. Applications subsequent to startup a. Larry Elmore Perry averred that Ryder's decision on the drivers to be hired was made on the Thursday prior to a driver meeting on 1 December, i.e., 24 November. Larry Elmore, a member of the Teamsters, testified that he was on his last run for Diesel Recon, when he received a telephone call from Diesel Recon Supervisor Tom Briggs to the effect that he had only 3 more days to get in an application with Ryder. Elmore stated that this was his first knowledge that Ryder was receiving applica- tions. His codriver was Carl Briscoe, and Elmore did not know the circumstances surrounding Briscoe's earlier submission of an application. Elmore's run was known as the "Sierra Nevada" run, and he was delayed by snow in the mountains. He ar- rived back in Memphis on 4 December 1983, a Sunday, and went to Ryder's Riverside Drive location between Monday and Thursday of the following week. Elmore told a lady there that he was one of the original Diesel Recon drivers, and wanted to fill out an application. The lady replied that they had all the applications they needed. She did not offer Elmore an application form. Elmore left and has not had any contact with Ryder since that time. I credit Elmore's testimony, and con- clude that the individual with whom he spoke was Linda Averill. On 9 December 1983 Ryder recognized District 2-A as the representative of all its drivers serving the Diesel Recon account.85 Thereafter, the Company hired or transferred from other accounts about 36 drivers for the Diesel Recon account.86 One of these87 was transferred from the Sunbeam account to the Diesel Recon account on 15 December 1983, about a week after Larry Elmore visited the Ryder location on Riverside Drive and asked for an application. b. Wyman David Elmore Wyman David Elmore had been a Diesel Recon driver, and was the Teamsters' assistant steward for Diesel Recon at the time Ryder took over operations. Elmore underwent surgery and was not able to work until March 1984. He then asked Ryder Operations Su- pervisor Hulsey whether the Company was hiring, and Hulsey replied affirmatively. Elmore filled out an appli- cation, dated 19 March 1984.88 Hulsey said that he would talk about it with Operations Manager Perry,89 and call Elmore. Hulsey did not call, and Elmore went back about a month later, i.e., about the latter part of April. Hulsey said that they were not hiring. Elmore called again on the phone "sometime later," and received the same response. Subsequent to 19 March 1984, Ryder hired or trans- ferred from other accounts numerous individuals for work on the Diesel Recon account. Nine of these per- sonnel actions took place in April and May 1984.90 6. Refusal to take VSA test-Jerry Ferguson Jerry Ferguson was a Diesel Recon driver, but not a member of any labor organization. He submitted an em- ployment application dated 10 November 1983.91 Later, he was told in a group that he had to take a voice stress analysis test. Senior Operations Manager Raper said that they would talk into a tape recorder, and that it would be played back and analyzed later. Ferguson refused to take the test. Saying, "I don't want no job," he left. Senior Operations Manager Raper did not recall Fergu- son, or the fact that he had refused to take the VSA test. Looking at Ferguson's application, Raper had concluded that, because of Ferguson's "attitude," there was no point in further processing of the application. Ferguson's recall of the events was superior to Raper's, and I credit his version, to wit, that he refused to take the VSA test, and walked off after saying that he did not want a job. as G C Exh. 22 86 G C. Exh 61kb) 8' Arland Osborne 88 G C Exh 21 99 Perry testified that he was employed by Ryder through April 1984 so G C Exh 61(b) 91 G C Exh 50 RYDER SYSTEM 1037 7. Asserted bad driving records b. Larry Griggs a. Bobby Joe Todd Bobby Joe Todd was a Diesel Recon driver and a member of the Teamsters. He submitted an application with Ryder on 4 November 1983. The application has a space asking for information on traffic convictions within the preceding 3 years. Todd wrote in this space: "Check with Bobby Haynes." A state motor vehicle report dated 21 October 1983 shows one speeding violation in 1983 and two in 1982. There is a handwritten but illegible entry on the report, apparently dated 11 December 1980. Handwritten entries on the back of the form indicate a ticket for an invalid inspection sticker a year before, with an explanation, and a collision 12-13 years prior to 1983.92 Todd testified that he was interviewed by Senior Op- erations Manager Raper and took a VSA test. Raper told him not to call anyone, and said that Ryder would get in touch with him. However, no one called, and Todd was never told the reason he was not hired. During Raper's testimony, he did not recall interviewing Todd, but, noting the letters "DR" at the top of his application, said that he had to "assume" that Todd was not hired be- cause of his driving record. Todd called the plant several times thereafter, and fi- nally spoke with Operations Supervisor Hulsey in July 1984. According to Todd, he went to the plant and had a conversation with Hulsey, who told him that he prob- ably could use him as a casual driver, but not if he had a "Teamsters frame of mind." The supervisor said that he "wouldn't tolerate a Teamster mentality." Todd submit- ted a second application on 12 July 1984,93 and was hired as a casual driver. He testified that he worked about 3 weeks, and then quit because he was offered a full-time job by another employer. Hulsey did not deny the details of the conversation al- leged by Todd. He agreed that Todd had not been em- ployed initially, but was later hired. Asked what caused him to change his mind, Hulsey did not answer the ques- tion. He contended that he did not use Todd and a co- driver, Douglas Dodson, after their first run because they slept on the side of the road and were 4 1/2 hours late on a trip to Chicago.94 However, on cross-examina- tion, Hulsey admitted that he never said this to Todd be- cause it was Dodson who was on the line.95 Hulsey ad- mitted that Todd quit. I credit Todd's uncontradicted testimony that Hulsey told him that he could not be hired if he had a "Teamsters frame of mind," and that Hulsey would not "tolerate a Teamster mentality." I also credit Todd's testimony, admitted by Hulsey, that Todd quit for a permanent job with another employer. 92 G C Exh 55 93 G C Exh 14(b) 94 At the hearing, the parties stipulated that Dodson, if recalled as a witness, would have testified that he and Todd were approximately 45 minutes late The General Counsel thereafter filed a motion to withdraw from this stipulation and, no opposition thereto having been filed by the parties after due notice, the motion is granted. 95 Dodson's full case, which involves company charges in addition to one of a bad driving record, is considered infra Larry Griggs was employed by Diesel Recon as a driver in March 1981, and was employed on the date that Ryder began its transportation services for that com- pany.96 He filed an application for employment on 4 No- vember 1983, and took a VSA test. His application and driving record show a speeding citation and a first acci- dent in 1980, a speeding citation in 1981, two additional accidents, and a citation for following too closely in 1983.97 Griggs did not testify. Senior Operations Manager Raper stated that Griggs' driving record was the main reason Griggs was not hired. Raper could not recall whether he used the VSA test as one of the reasons for not hiring Griggs. c. Ralph Sanders Ralph Sanders was employed by Diesel Recon in Jan- uary 1978, and was an employee at the time Ryder took over Diesel Recon's transportation functions.98 He did not testify at the proceeding. Sanders filed an application with Ryder on 3 Novem- ber 1983, which showed that he had four speeding cita- tions within the preceding 3 years in Arkansas, and one in Washington State. He also took a VSA test, and told Raper that he maintained a driver's license in more than one State. In explanation, Sanders told Raper that he be- lieved that his Mississippi license was going to be taken away, and therefore applied for an Arkansas license. The anticipated action by Mississippi did not take place, and Sanders ended up with two driving licenses.99 Raper testified that Sanders was not employed because of his four (Arkansas) speeding tickets, and the fact that he applied for the Arkansas license when he thought that he was going to lose his Mississippi license. The senior operations manager said that it would "concern" him that a prospective employee would do this. Asked to ex- plain his concern, Raper replied that "a lot of it is sub- jective," but the fact that a driver would file such an ap- plication "casts doubt" on whether he would be a desira- ble employee. Sanders did not tell Raper that he lied to get the Arkansas license, and Raper never checked to de- termine whether Sanders lost his Mississippi license. 8. Asserted bad driving records and other reasons a. Douglas Dodson Dodson was a former Diesel Recon driver, and filed an application with Ryder on 4 November 1983.100 His application and driving record show one speeding and two other violations within 2 years preceding his appli- cation. He took a VSA test in which, according to Dodson, he admitted a citation for driving under the in- fluence 18 years before the date of his application.101 e6 G C Exh 7 97 G C Exh 41 98 G C Exh 7. 99 G C Exh 47 too G C Exhs 16(1) and 33 101 Raper's notes indicate that Dodson said it was 15 years before 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Raper told Dodson that the test would have no bearing on whether he was hired. Dodson submitted two letters of recommendation, one from Diesel Recon saying that he was an "excellent pro- fessional driver who has performed to the highest stand- ards in his field," and another from ITT Continental Baking Company, Inc.-Hostess Bread . Raper stated that the second letter was from "Wonder Snack Foods." Dodson had received numerous safedriver certifi- cates. 102 At the time of his VSA test, Dodson told Raper that he had taken stale potato chips valued in excess of $10 from a Wonder Snack Foods truck.103 This took place several years before, and Dodson continued to be em- ployed by this employer. In addition, Dodson acknowl- edged taking "road pills" 5 years before, but none since. Raper asserted that these were the reasons he decided not to employ Dodson. Nonetheless, Ryder thereafter employed Dodson, and Raper was unaware of any information the Company had received about Dodson since his initial application which would have caused it to change its mind about him. Dodson submitted a second application on 11 July 1984,104 and was interviewed by Operations Supervisor Hulsey. According to Dodson's uncontradicted testimo- ny, Hulsey asked him what his relationship had been with the Union when he was working for Diesel Recon. Dodson replied that he did not know what Hulsey was talking about, that he had tried to do his job and behave himself, and had never filed any grievances. "That is not exactly what I had in mind," Hulsey replied. He "kind of laughed and threw his pencil down." Dodson was hired as a casual driver on 18 July 1984,105 and made three runs. Thereafter, he called Hulsey for work for 4 or 5 weeks, but was told that things were "slow," and that Hulsey did not need him. Hulsey said that he had hired two drivers for training purposes.106 Dodson called a "Mr. Ray [Hoenig]" and asked why he was being treated in this manner-that he was obviously qualified for the job because he had been hired. Ray said that he would get in touch with Hulsey and find out, but never communicated again with Dodson. As indicated in the discussion of Bobby Joe Todd, Hulsey's position was that Dodson and Todd were 4-1/2 hours late on a run to Chicago. Hulsey contended that he told Dodson at that time that Ryder would not use him anymore because of this lateness on "their first stop." Dodson, however, testified that no one has told him that his employment has been terminated, and that he has not been asked to return the keys to company trailers. Company records showing the date of Dodson's employment have a space showing date of termination, but this space is blank.107 102 C P Exh 3 109 Raper's notes omit the adjective "stale " 104 G C Exh 12 105 G C Exh 16(j) 106 Ryder hired six drivers for the Diesel Recon account in July and August 1984 (G C Exh 61(b)) 107 G C Exh 16(j) Dodson's testimony implicitly denies Hulsey's assertion that the latter told Dodson that the reason for failure to give him further work was lateness on a run. Hulsey's testimony is inconsistent with the company records. I credit Dodson's testimony, and find that Ryder, after hiring him as a casual driver and giving him three runs, thereafter failed to assign him any more work. The only reason given was that work was "slow"-at times when Ryder was hiring other drivers for the Diesel Recon ac- count. b. James R. Wait James R. Wait was a Diesel Recon driver and a member of the Teamsters. He filed an application with Ryder on 1 November 1983,108 and testified that Oper- ations Manager Perry told him to return for an inter- view. Wait did so and was given a VSA test. He stated that Perry told him the test would not be used to deter- mine whether he would be hired. Although Wait was uncertain whether Perry or Raper administered the test, Wait's signed consent authorizing Ryder to administer it is countersigned by Raper, 1 ° 9 and Raper acknowledged that he made notes on the examination form. The application shows that Wait had one traffic viola- tion, for speeding, within the 3-year period preceding his application. To question 11 on the VSA test, which asks about health problems, Wait answered that he had previ- ously taken diet pills. After completion of the test, Perry (or Raper) told Wait that everything was "okay," and that they would be in touch with him. Wait later called Perry (or Raper), and was told that his name was not on the list. Raper had no independent recollection of the reason Ryder failed to hire Wait. Looking at his note, "MVR" (Motor Vehicle Record), on the VSA form, Raper said that he had to "assume" that this was one of the reasons Ryder did not hire Wait. Raper had no recollection of having looked at the MVR. The other reason for not hiring Wait was the fact that he had previously taken diet pills. Raper asserted that diet pills are not taken for health problems. c. Russell Taylor Russell Taylor was a Diesel Recon driver and a member of the Teamsters He filed an application with Ryder on 4 November 1983, together with letters of rec- ommendation from RTR's manager of driver services, Bobby D. Haynes, and Diesel Recon's traffic coordina- tor, Faye McNabb. The former cited Taylor's safety record-no accidents-and affirmed that he would be "an asset to any company he is associated with." The latter referred to Taylor's "excellent driving record" and diligence, and called him "an outstanding employee." 110 Taylor's application and an attached motor vehicle report show that he had three speeding violations during the 3 years preceding his application, but that he also 108 G C Exh 52 109 Ibid 110 G C Exh 59 RYDER SYSTEM had safe driving awards from Ryder from 1978 to the time of application. Taylor took a VSA test administered by Leppla. Ac- cording to Taylor, the man who gave him the test said that it had nothing to do with whether he got a job. Leppla testified that he reworded a question on whether Taylor had ever been fired and, as reworded, Taylor an- swered it truthfully. According to Leppla, Taylor decep- tively answered a question about whether he was taking medication. However, on asking Taylor about this, the latter admitted that he was taking medication for high blood pressure and allergies. Some of the questions were not answered. Taylor testified that the man who adminis- tered the test said that it was the best looking test he had given, and that Taylor should not have any problems with it. Raper did not recall interviewing Taylor, but asserted that the VSA test conducted by Leppla was one of the reasons Taylor was not hired. With respect to Taylor's medical problems, Raper did not request any medical in- formation on Taylor from Diesel Recon, or ask Taylor to take a physical examination. Raper was unable to ex- plain an ambiguous note by Leppla suggesting that Taylor had been fired in 1968, and possibly reinstated. Raper did not ask Leppla why some of the questions on Taylor's test were unanswered. Noting the acronym "ATT" at the top of Taylor's ap- plication, Raper asserted that another reason for not hiring him was his attitude. However, as Raper did not interview Taylor, he knew nothing about his attitude. Also noting "MVR" at the top of Taylor's application, Raper said that the applicant's driving record was an- other reason for not hiring him During his last trip for Diesel Recon, Taylor called Ryder and asked for the results. He spoke first with Perry, and then with the lady who received the applica- tions. The latter told him that his name was not on the list, but could not give him the reason. 111 No one has given Taylor the reason he was not hired. I credit Taylor's testimony regarding the statements made to him by Charles Leppla. I also find that the lady he spoke to during his inquiry about his application was Linda Averil1.112 d. Larry Baker Larry Baker was hired as a driver by Diesel Recon in September 1979, and was employed at the time of the takeover of services by Ryder.' 13 He filed an application with Ryder on 15 November 1983, showing that he had received two speeding citations within the preceding 3 years. 114 Baker also took a VSA test administered by Raper I" s In taking the test, Baker gave affirmative an- ' 11 Ryder relies on this call in support of its assertion that Taylor's claim is time-barred by Sec 10(b) of the Act 112 During interrogation of Raper about Taylor's application, the Gen- eral Counsel occasionally referred to the applicant as Williams The tran- script shows that counsel meant , and that Raper understood him to mean, Taylor 113 G C Exh 7 114 G C Exh 30 its G C Exh 31 1039 swers to questions about whether he had ever consumed alcoholic beverages while driving, had his driving privi- leges suspended or revoked within the last 3 years, had used drugs or narcotics other than those prescribed by a doctor, and had used pep pills to stay awake. During the General Counsel's examination of Raper, counsel and the witness referred to certain notes purport- edly made by Raper on the back of the VSA test.' 16 Thus, with reference to the first admission, Raper alleg- edly noted that Baker "rides down the road, drinking a beer." However, Raper did not ask Baker when this oc- curred or the date. With respect to the second admission, Raper wrote that Baker "takes pills on occasion." Con- cerning the driving license suspension, Raper commented that Baker gave him an explanation, but could not recall what it was. Raper did not ask Diesel Recon for Baker's personnel file. Although Baker did not testify, Raper's faulty memory in general and his failure to ask Baker the details of the alleged offenses entitle his notes to little probative value. e. Wayne Smith Wayne Smith had been a Diesel Recon driver since 1981 and was a member of the Teamsters. He filed an application with Ryder on 3 November 1983. This appli- cation and a driving record show three citations for speeding and one for improper backing during the pre- ceding 3-year period. Smith also took a VSA test admin- istered by Raper which indicates that Smith once picked up gloves and locks from a former employer, took drugs or narcotics other than those prescribed by a physician, and occasionally used pep pills. 117 After reviewing the documents, Raper testified that Smith's motor vehicle record and his responses to the VSA questions were the reasons Smith was not hired. Raper said that he did not recall when the gloves and locks were taken. Smith credibly testified that Raper told him that the VSA examination would not affect his employment. The locks were used on Diesel Recon trailers. Although Smith had obtained two or three of these prior to his last trip for Diesel Recon, he also took some after his last trip because, he said, Diesel Recon was not going to use them anymore. This was apparent, Smith averred, be- cause the drivers had all the keys to the locks. The gloves were disposable, and Smith took them home after a trip. He also told Raper that he sometimes drank beer while taking a break on the truck, i.e., when he was in the sleeper and his codriver was driving. Smith testified that he called Ryder between 28 and 30 November, and was informed by a woman that he had not been hired."8 116 G C Exh 31 There are no notes on the back of the exhibit in evidence I conclude that this was the result of an omission in the copy- ing process "v G C Exh 57 118 Ryder relies on this evidence in support of its contention that Smith received notice he was not being hired more than 6 months prior to the filing of the amended charge in Case 26-CA-10714 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD f. Troy Hinton Troy Hinton had been employed by Diesel Recon as a driver and was a member of the Teamsters. He filed an application with Ryder on 2 November 1983, and took a VSA test from Raper. His application and a motor vehi- cle report show four speeding citations within the 3-year period preceding date of application.119 Raper testified that he did not recall whether Ryder considered Hinton's driving record in rejecting his application, but would "assume" that it did. The VSA test, Raper's notes on the back, and Raper's and Hinton's testimonies establish that Hinton told Raper he had taken "cokes," cigarettes, a quart of oil, and 35 cents for cigarettes from the cash register while working for a service station back in the 1950s, when Hinton was in his midtwenties. These were additional reasons that Hinton was not hired. Hinton testified that, after comple- tion of the test, the person who administered it told him that "everything looked all right." Hinton also affirmed that, about a week or two before Diesel Recon released its drivers, he called Ryder, spoke to Hulsey, and was informed that he had not been hired. 120 9. Bad attitudes a. John Partain John Partain was a Diesel Recon employee 121 who filed an application with Ryder on 2 November 1983.122 After looking at a note that he wrote on Partain's appli- cation, Raper testified that Partain was not hired because of his attitude. Although Raper expounded in general on the "bad attitudes" of various Diesel Recon applicants, he was unable to recall specifically the nature of Par- tain's bad attitude. Partain, however, was later hired by Operations Man- ager Perry as a casual driver on 28 February 1984, was made a full-time driver on 25 April 1984, and was so em- ployed at the time of the hearing. Asked why Ryder changed its mind about Partain, Perry replied that he needed drivers, and that he asked former Diesel Recon Traffic Coordinator Faye McNabb whether former Diesel Recon drivers (including, presumably, Partain) had "good attitudes." Apparently reassured by McNabb about Partain's "good attitude," Perry hired him. After examination of Partain's personnel file, Raper was unable to state the reason for Ryder's change of opinion about Partain's attitude. b. Vernon Wilson Vernon Wilson was a former Diesel Recon driver123 who filed an application with Ryder on 7 November 1983.124 Raper did not recall interviewing Wilson. 119 G C Exh 44 1211 Ryder contends that this notice from Ryder to Hinton time bars the 8(a)(3) allegation concerning him because of Sec 10(b) of the Act 121 G C Exh 7 122 G.C. Exh. 35 122 G C Exh 7 124 G C Exh. 38 Looking at the letters "ATT" (attitude) written on Wil- son's application, Raper was unable to state the nature of Wilson's attitude. Wilson was subsequently hired as a casual driver on 24 February 1984, was made a full-time driver on 23 April, and was thus employed at the time of the hearing. Raper was unable to recall any reason for Ryder's change of opinion about Wilson, except that Perry spoke to him about Wilson. According to Perry, some of the drivers hired originally did not perform well, and had to be let go. Perry kept a suspense file of applicants who did not "make the first cut," although there were "a lot of people who would have made good drivers." Wilson, ap- parently, was one of these and was hired. c. Bobby L. Goza Bobby L. Goza was a Diesel Recon driver and a member of the Teamsters. He filed an application with Ryder on 5 November 1983125 and was given a VSA test by Raper. Raper wrote the initials "A-T" at the top of Goza's application, and testified that this meant "Atti- tude." Raper could not recall what Goza's attitude was, but stated that this was the only reason he was not hired. In January 1984, however, Goza went to Ryder's facil- ity and talked to Raper and Hulsey. They told him to "hang loose," to stay by the phone, and that they were going to recall him to work. Perry called Goza in late February 1984, and told him that he was "one of the calibre of employees that they would like to have." Perry offered to recall Goza, but the latter declined. He had waited so long, he told Perry, that he had purchased his own truck. Perry replied that they would "leave things hanging open," and would talk about it later if Goza changed his mind. d. Norris Harris Norris Harris was a former Diesel Recon driver and a member of the Teamsters. He filed an application with Ryder on 2 November 1983.126 Harris saw Perry and was given a VSA test. Perry was originally unable to recall the reason Harris was not hired. On being shown Harris' application with the let- ters "ATT" written on the top, Perry asserted that Harris had been "gruff," and had a "very, very poor atti- tude." He acted as if Ryder owed him a living. There was no "positive chemistry" between Harris and Perry. Further, Harris asserted that he had been forced to resign from a prior job because of possession of Valium, whereas, in fact, he had a prescription and thought he had been "set up." Perry never saw the results of the VSA test. Harris, however, testified that "it wasn't exactly an interview." Somebody told them that the applicants would be taking a VSA test. As far as a personal inter- view, "there never was one like that," except that before the test there was discussion of the incident where Harris thought he had been "set up." After the VSA test, Perry said nothing to Harris about the results. '2s G C Exh 54. 126 G C Exh 36 RYDER SYSTEM 1041 Harris called Perry during his last run for Diesel Recon, and was told that his name was "not on the list." Harris asked the reason and Perry replied: "Well, there's nothing wrong with you. Your name is just not on the list." Although Perry asserted that Harris acted as if Ryder owed him a living, Perry did not assert anything specific that Harris said to warrant such an assumption. Perry's testimony about "chemistry" is too vague to be entitled to probative value. I credit Harris' testimony that the only discussion of substance between him and Perry con- cerned the former job where, Harris thought, he had been "set up." I also credit Harris' uncontradicted testi- mony that, when he later called Perry, the latter said that there was "nothing wrong" with Harris. e. Harold Baker As previously indicated, Raper said that Baker had a bad attitude because he expressed an interest in his pay and in bid runs. However, Ryder apparently did not think that the Teamsters steward's attitude was bad enough to prevent him from working in the Sunbeam ac- count, where the drivers were District 2-A members. 10. Theft, alcohol, drugs, etc. a. Joe W. Gross Joe W. Gross was a Diesel Recon driver and a member of the Teamsters. He filed an application with Ryder on 3 November 1983, and took a VSA test admin- istered by Raper.127 In the latter, he affirmatively an- swered questions asked of him concerning whether he had ever been in an accident involving bodily injury or extensive property damage, had ever stolen money from a former employer, had ever taken drugs other than those prescribed by a physician, or had ever taken pep pills to stay awake while driving. On the back of the VSA test are Raper's notes indicating that Gross had a "beer while eating," had been hit "head on" by a drunk in 1973 who died in the accident, had taken one-half a pill 2 weeks before-the first time in months-and, to- gether with others, had taken some "nudity films," ap- parently in 1960, from a box broken by "someone." Gross' application shows that he was born in 1942. After examining the VSA test, Raper testified that he did not hire Gross because of his answers given on the test. Gross credibly testified that Raper told him that the test would not be used to determine whether he would be hired. The question about alcohol was rephrased so as to eliminate the implication that Gross was drinking while driving-he simply had one beer at a barbecue 2 years before the hearing. Raper asked him about the theft, and Gross replied that, in 1966, when he was 22-23 years old and working on a freight dock, some films de- picting nudity "came through" and someone else opened the box. Everybody took some, and Gross took one or two reels. 127 G C Exh. 49 b. David M. Williams Williams had been a Diesel Recon driver since 1976, and was a member of the Teamsters. He filed an applica- tion with Ryder on 4 November 1983, and was given a VSA test by Operations Manager Perry.1128 Perry did not initially recall Williams at the hearing. However, after being shown the VSA test, Perry agreed that he had administered it, and that Williams was not hired because he admitted stealing potato chips and cup- cakes from a former employer, and had been arrested for assault and battery. With respect to the latter reason, Perry asserted, "I didn't want to hire somebody that I felt like I had to fight my way out of the office with." Williams testified that Perry told him the VSA test would not be used in determining whether he would be hired. He also affirmed that he explained the circum- stances regarding the alleged theft. He was working for Wonder Snack Foods, and occasionally took "overages" of potato chips at the end of the day. "Everybody" did this, according to Williams' report to Perry, and "the boss knew about it." Williams worked for Wonder Snack until a layoff. Williams also described, very briefly, the assault and battery charge. Williams apparently had been parking his car in front of the residence of an elderly lady. Although she never complained, her grandson, who lived 30-40 miles away, "confronted" Williams about it. Williams testified that he explained these circumstances to Perry, and that the latter told him "not to worry about it.1+129 I credit Williams' testimony that he made the forego- ing statements about the potato chips to Perry. If Perry believed Williams-and Perry advanced no reasons for disbelieving him-the statements do not support Perry's assertion that Williams "stole" from Wonder Snack Foods. Rather, they affirm a practice whereby a former employer-for some reason, possibly staleness-allowed drivers to take home overages of potato chips at the end of a day. Whether this statement is true does not consti- tute an admission of theft by Williams. I credit Williams' testimony that Perry told him not to worry about the assault and battery charge. Perry did not directly assert that Williams was hostile or aggres- sive during the interview. Perry's asserted apprehension about having to "fight his way out of the office" with Williams is based solely on the assault and battery charge. I conclude that Perry's purported fear of Wil- liams was an afterthought at the hearing, after Perry had read his notes of the VSA test. He did not even remem- ber Williams before reading the notes. c. Nolan Harris Nolan Harris was a member of the Teamsters. He had been employed as a driver by Diesel Recon since 1977, and had received a 12-year safe-driving award from a prior employer and a 5-year safe-driving award from RTR while driving its vehicles for Diesel Recon. Harris 128 G C. Exh 58 129 Although Williams also said that his driver's license had been re- voked in 1966, it was reinstated the same year, and this was never ad- vanced by Perry as a reason for not hiring Williams 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed an application with Ryder on 4 November 1983. Al- though Harris listed one undated speeding violation, the application and a motor vehicle report reveal no traffic citations or accidents for the 3-year period preceding the date of application. 130 A VSA test was administered to Harris by Charles Leppla, Ryder's expert in this field. According to Harris, the person who administered the test told him that it would have no effect on whether he was hired. Leppla testified about his interpretation of the truth of Harris' answers to the VSA test questions, and about Harris' actual statements to Leppla. As noted, the General Counsel objected to the former testimony on the ground that the best evidence-the tapes-had been destroyed by Ryder. The relevant test questions, Harris' answers, and Lep- pla's written notes are as follows: Question 3 asks whether the information supplied is accurate and complete, and question 4 whether the applicant had ever been fired or asked to resign. Harris did not answer either question . Leppla's note as to question 3 reads "App not complete-Decep- tion." His note as to question 4 reads "Deception." Question 16 asks whether the applicant ever stole money from a prior employer, and Harris did not answer it. Leppla's written note reads, "When I don't get what I think I should I'll get it. Steal time, miles etc." Question 21 asks whether the applicant "ever" uses pep pills to stay awake while driving. Again, Harris did not answer, and Leppla's written note reads, "Uses pep pills Can drive without them."131 At the hearing, Leppla was asked whether Harris made any "deceptive" answers to the questions. The wit- ness replied that there was "slight deception" in the answer to question 3, and "deception" in the answer to question 4. Leppla was then asked whether there were "any other items." He replied that Harris' response to him was: "When I don't get what I think I should get, that's it. And the theft, if you call it that, was only steal- ing time from his employer or/and miles." With respect to question 21, Leppla testified, "He [Harris] admitted in [question] 21 that he uses pep pills, but said he cannot drive without them." Leppla then tes- tified that he lectured Harris that such practice was not permissible, and that a future VSA test would determine whether he had in fact done so. Harris was cross-examined on these issues by Ryder counsel. He agreed that he told Leppla that he had used pep pills "in the past." Harris denied that he told Leppla that he had ever stolen money from a prior employer, and also denied that he told Leppla that he had stolen time. "That was a completely different situation," Harris added. Finally, Harris denied that he told Leppla he had stolen mileage. I do not credit Leppla's testimony that Harris' answers to questions 3 and 4 involve deception because no answer at all to those questions is indicated either on the 130 G C Exh. 46. 131 G C. Exh 45 Other questions are also unanswered. test form or in Leppla's notes. An unstated answer can hardly have been made deceptively. Leppla says nothing about "deception" regarding ques- tions 16 and 17 and, apparently, was reciting his version of what Harris told him over and above the unanswered test questions. His testimony on the theft question is am- biguous. Leppla's testimony that Harris told him that the latter cannot drive without pep pills is contradicted by Leppla's own note on the subject . I credit Harris' ver- sion of what he told Leppla.132 Senior Operations Manager Raper testified that Leppla was in the Memphis office when he administered the test to Harris. Asked repeatedly by the General Counsel whether Leppla's notes formed the basis for Ryder's fail- ure to hire Harris, Raper gave evasive answers, saying that he had interviewed "a hundred people" since that test. Raper finally stated that his "best opinion" was that Leppla's notes had "a great bearing" on the decision. Raper did not ask Leppla why Harris failed to answer certain questions, and did not recall discussing Harris' application with anyone. Raper's testimony is too vague to warrant a finding that Leppla's notes, inaccurate as they may have been, were the reason that Harris was not hired. The latter was not contacted by Ryder following his VSA test, and nobody told him the reason he was not hired. d. Michael Davis Michael Davis had been a Diesel Recon driver since June 1979, and filed an application with Ryder on 4 No- vember 1983.153 He was a member of the Teamsters. Operations Manager Perry administered a VSA test to Davis. Perry did not initially remember Davis at the hearing but, after reading his VSA notes, said that Davis was not hired because he admitted having tried to take an "old shock" from a former employer, and because Davis alleged that there was a "conspiracy " against him by a former codriver and the latter's wife, which forced Davis to resign. Davis also admitted smoking "Mary Jane [marijuana] at home." Davis testified that he previously had a codriver whose wife had gone to driving school, and that the two of them wanted to earn more money by having the wife drive with her husband. Accordingly, Davis was forced out. Davis further asserted that he had previously been a warehouse employee, and took two "old shocks" from a dumpster where the company threw away products. As he was going up the elevator with the shocks, he was stopped by a supervisor, but was never charged with theft. Thereafter, according to Davis, he was given the job of delivering auto parts to 15 stores, even when nobody was there, and had the keys to the stores. Davis testified that he explained this to Perry. I credit Davis' testimony. Another driver later told Davis that his name was not on the list. 132 See J. C. Penney Co, v. NLRB, 416 F.2d 702, 705 (7th Cir. 1969), enfg 172 NLRB 1279 (1968) 133 G C Exh. 40 RYDER SYSTEM e. Ronald Newsom Ronald Newsom had been a Diesel Recon driver since 1976 and was a member of the Teamsters. He filed an application with Ryder on 3 November 1983,1 34 and was given a VSA test by Raper. The latter, after review- ing his notations, gave several reasons for not hiring Newsom. First, he was convicted of a felony, having had possession of a $100 counterfeit bill. Newsom was fined, and spent 60 days in a detention center and 3 years on probation. Raper did not inquire when the 60 days were served. Newsom also admitted drinking in Sioux Falls while waiting on a customer to whom he was making a delivery. Raper did not ask the specific location where Newsom did this. In addition, Newsom admitted having a driver's license in more than one State-he resided in Mississippi and had a Tennessee license. (Diesel Recon was located in Tennessee .) Further, Newsom told Raper that his Mississippi license had been revoked because he had failed to pay a fine. Raper made no investigation to determine when the license was revoked or the reason. Newsom also admitted taking pep pills to stay awake. 11. Asserted medical reasons-Homer Parsley Homer Parsley had been a driver for Diesel Recon since 1974, and was a member of the Teamsters . He filed an application with Ryder on 4 November 1983, and was given a VSA test by Raper. 135 Parsley testified that Raper said the test would "not be used against him." During the test, Parsley informed Raper that he had been in an accident 5 years before, and had sustained two broken legs and two fractured vertebrae. He was off work for 14 months . Thereafter, Parsley passed two De- partment of Transportation physical examinations and re- sumed driving for Diesel Recon. Raper testified that he did not ask for a copy of the accident report or Parsley's medical records . He did not ask Parsley whether he had fully recovered from the ac- cident. Nonetheless, according to Raper, Parsley was not hired because of the accident. Parsley corroborated this testimony, and added that there was no discussion be- tween Raper and him concerning his physical ability to drive. He was not asked to take a physical examination. Parsley was informed during his last trip for Diesel Recon that his name was "not on the list." No other reason was given. G. The 1 December Orientation Meeting 1. Summary of the evidence a. The meeting in the breakroom Ryder conducted an orientation meeting of drivers on 1 December 1983. Former Diesel Recon employees who had been hired by Ryder did not attend this meeting. It was held in the breakroom at Diesel Recon 's facility on Pershing Street in Memphis . Employees Sturdivant and Whitlock testified that their supervisors notified them of that meeting. 134 G C. Exh 48 135 G.C Exh 34 1043 There are several accounts of the meeting , with the principal issues being whether breaks occurred during the meeting, and whether Crowley distributed District 2- A cards to new employees during the breaks and at the end of the meeting. Earnest Whitlock testified that the meeting began about 8 a.m.,136 and was attended by Ryder executives Perry, Hulsey, Raper, and Johnson. Sharon Pelt was also present, and a young lady who took identification photo- graphs. Dick Perry spoke first about the necessity of proper appearance on the part of the drivers, and con- cluded about 8:45 a .m. He was followed by Jim Hulsey, who spoke for about an hour to an hour and 15 minutes on the subject of route rotation . About midway in Hul- sey's speech, Perry suggested that they take a coffee- break, and the employees did so for about 10 to 15 min- utes. David Crowley was in the breakroom at that time. Hulsey resumed speaking and continued for about 15 minutes. When he ended, about 10: 15 a.m., Perry said that Harlan Johnson wanted to explain insurance to the employees. However, there was a second break period before Johnson began speaking, and the employees again drank coffee. Johnson finished about 11 a.m. and left, according to Whitlock. Perry said that the meeting was over. Whit- lock went to the bathroom . He came back and started to leave, but Perry, who was standing with Hulsey outside the breakroom, told Whitlock that "they" wanted to talk to him inside . Whitlock returned to the breakroom where Crowley handed him a District 2-A card. Other cards were being signed. Whitlock asked Crowley whether Ryder wanted a union . "Yeah," Crowley re- plied, "they want the union, and something to the effect of their union." Whitlock asked whether he should sign the card and Crowley replied, "Well, they want the union. They have accounts all over with this union." Crowley also told Whitlock that "everyone" was going to sign. Whitlock said that he already belonged to a union, and expressed reluctance about signing. "If I was you," Crowley told him, "I would sign it.11137 Ralph Tedford recalled only one break, about 10 a.m. Crowley passed out union cards, and Tedford received one while sitting at a table. Supervisors , including Jim Hulsey, were present . Hulsey denied this. Ricky Sturdi- vant also testified that Crowley passed out union cards, which Sturdivant identified as District 2-A cards.138 Sharon Pelt did not recall a break during the meeting. However, after Perry, Hulsey, and Johnson had finished speaking, either Raper or Johnson-probably the latter- said that "their end of the meeting was done," but asked the drivers to "stick around ." Crowley then started pass- ing out union cards. About 15 minutes later, Johnson said that the supervisors should leave because they were 138 Although Whitlock stated that the date was 2 December, the weight of the evidence establishes that it took place a day earlier 134 Whitlock's Distnct 2-A card is in evidence, dated 1 December 1983 (G C Exh 64(o)) 138 Sturdivant's and Tedford's District 2-A cards are in evidence. Ted- ford's is dated 1 December 1983, but the date on Sturdivant's is illegible (G C Exhs 64(u) and (v)) Sturdivant said that he had previously re- ceived a card from Lavell Cross , District 2-A's representative on the Sunbeam account 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not supposed to be there while union cards were being passed out. Director of Operations Johnson testified that he ar- rived at the meeting a little late, about 11 a.m. The em- ployees were then on a break. Crowley approached him near the coffee machine and said, "Hey, I've got 30 some signature cards signed up." Johnson replied that he did not want to "hear that stuff" and walked off. Johnson denied that he saw union cards being passed out. He acknowledged that, at the end of the meeting, he may have said to Sharon Pelt, "`Let's get out of here,' or something like that." According to Johnson, the supervi- sors had another meeting to attend. Hulsey) denied any exchange between Perry and Crow- ley about the latter's solicitations of District 2-A cards, Johnson's testimony clearly establishes that there was a conversation between Crowley and Ryder management about Crowley's solicitation efforts. I credit the evidence from Sturdivant and Tedford concerning the exchange between Perry and Crowley on those efforts. I also credit Whitlock's unrebutted testimony about Perry's di- recting him back to the breakroom after the end of the meeting, Crowley's handing him a card telling him that Ryder wanted District 2-A and that everyone was going to sign, and Crowley's advice about the advisability of signing. b. The separate meeting with Perry Ricky Sturdivant testified that, during "an adjourn- ment about the middle of the meeting," after Perry and Hulsey had spoken but prior to the presentation from Harlan Johnson, Sturdivant and other employees were standing outside the breakroom, talking to Dick Perry about some trucks with experimental engines . Crowley was distributing cards when Sturdivant left the break- room. During the conversation with Perry, Crowley walked past the group, and Perry asked whether he "got them all." Crowley replied, according to Sturdivant, "Most of them." Thereafter, the meeting resumed, and Harlan Johnson made his presentation . Ralph Tedford corroborated Sturdivant's testimony, and asserted that the conversation with Perry took place after Tedford had received a union card. Perry admitted having a discussion about experimental engines with employees outside the breakroom, but did not recall being approached by Crowley. He denied asking the latter whether he "got everybody." Hulsey said that he was present at this meeting and corroborated Perry. 2. Factual analysis The fact that David Crowley was present at the orien- tation meeting and obtained signatures on about 30 Dis- trict 2-A cards is established beyond doubt by the admis- sion of Director of Operations Johnson that Crowley said this to him. Although Ryder attacks variations in the testimonies of the General Counsel's witnesses about break periods, the unrebutted testimonies of Sturdivant and Tedford establish that there was at least one break during the meeting, and that Crowley distributed District 2-A cards during that period. I credit Tedford's testimo- ny that supervisors were present during that period. I also credit Pelt's and Whitlock's testimonies that cards were distributed at the end of the meeting, and Pelt's averment that Johnson said the supervisors should leave, after having been present about 15 minutes. Al- though Johnson denied seeing union cards, he did state that Crowley told him that the latter had obtained 30 cards. Johnson also partially corroborated Pelt's testimo- ny about the necessity for supervisors to leave the room when cards were being distributed. Perry's testimony supports that of Sturdivant and Ted- ford to the effect th t th a b H. The Separate Meeting for Former Diesel Recon Drivers James George testified, without contradiction, that either Dick Perry or Jim Hulsey called a meeting of drivers on 4 or 5 December, i.e., a few days after the first orientation meeting. The meeting was held at Ryder's fuel and repair shop on Manassas Street in Mem- phis. The only drivers present were about eight former Diesel Recon drivers who had been hired by Ryder. At this meeting, Ryder management representatives dis- cussed driver routes, benefits, and the drivers' duties in general. George's testimony was corroborated by Billy Davis, another Diesel Recon driver hired by Ryder. George was working for Ryder at the time of the first orientation meeting, on 1 December, and happened to enter the breakroom when it was taking place. He had received no notice of the meeting and was not invited to attend. I. The Duties of Danny Spradlin Spradlin was on Ryder's payroll beginning shortly after his second arrival in Memphis. He testified that his initial assignment was that of an escort, guarding Ryder employees in the evening as they walked from the Breedlove facility to their automobiles. It was Dave Crowley who gave him this assignment, Spradlin testi- fied, and it was occasioned by Ryder's asserted fear of "trouble" from Diesel Recon drivers who had been ter- minated by Diesel Recon and not hired by Ryder. Sprad- lin stated that Crowley gave him this assignment because Ryder Operations Director Johnson was "impressed" with Spradlin's "size."139 After a few days of this duty, according to Spradlin, the "initial scare ... just kind of went away." Thereafter, Spradlin worked as a city driver for a short time. He testified that Crowley told him he was to be a "strike breaker," in the event of a strike by Diesel Recon drivers. Spradlin declared that Jim Hulsey was his immediate supervisor. However, he also considered Crowley to be "a sort of a boss." The reason was that both Crowley and Spradlin were District 2-A members, and Spradlin was "working partially for the Union, too." Spradlin protested to Crowley that he was not making as much money in Memphis as he would have been earning as an ere Was a conversation a out 139 Spradlin's size and physical appearance at the hearing were similar trucks with experimental engines. Although Perry (and to that of a professional football player or wrestler RYDER SYSTEM over-the-road driver. In response, Spradlin testified, Crowley made a gift to him of $200 in cash, and said that it came from District 2-A. I credit Spradlin's unre- butted testimony. After a short stint as a city driver, he became an over-the-road driver and ultimately left the Company. Operations Director Johnson testified that Ryder did not know whether a picket line was going to be put up, whether former Diesel Recon drivers would refuse to work for Ryder, or whether Ryder equipment would be left at scattered locations. Ryder Co-Counsel Victor On- ufrieff testified that there have been strikes and picket lines elsewhere attributed to Teamsters unions. There is no evidence that anything of this nature took place in Memphis. In light of the fact that Ryder hired only 8 drivers from Diesel Recon out of more than 40 others hired, and had numerous other applications, its asserted fear of a strike appears to be questionable. J. Ryder 's Recognition of District 2-A, the January 1984 Meeting, and the Collective-Bargaining Agreement Senior Operations Manager Raper agreed that Ryder recognized District 2-A in December 1983. On 9 Decem- ber 1983 an entity called "Ryder Specialized Transporta- tion, Inc." entered into a memorandum of understanding whereby Ryder recognized District 2-A as the exclusive bargaining representative of "all drivers servicing the Diesel Recon facility account located in Memphis, Ten- nessee." 140 Danny Spradlin asserted that, a few days after he began working, Raper told him to "get the boys to ratify the 2-A contract." Spradlin was a District 2-A commit- teeman during contract negotiations. Ricky Sturdivant testified that Ryder held a meeting in a Memphis motel on 2 January 1984, and that the Com- pany paid for breakfast. Senior Operations Manager Raper confirmed this, and added that Ryder also paid for the meeting room. Sturdivant and another driver had been scheduled to leave on trips and were prevented from doing so because of the meeting. Accordingly, they were paid for their time attending the meeting. Other drivers who were not similarly scheduled were not paid. Hulsey, Perry, other Ryder management personnel, and almost all the Diesel Recon account drivers were present. The subjects discussed at the meeting included the new routes and a new dispatch system. After the meeting adjourned, Sturdivant testified on cross-examina- tion, the drivers "were asked to remain in the room for the purpose of meeting with someone else." Jack De- Vaney141 then entered the room. According to Sturdi- vant, DeVaney talked to the drivers about the progress of contract negotiations with the Company, and was told by them to try to get more money. Raper was present at the January meeting, and acknowledged that DeVaney came in at the end. Raper asserted that DeVaney merely 140 G C Exh 22 141 The parties stipulated that Jack DeVaney was a vice president of District 2-A 1045 said, "Hello," sat down at the back of the room, and made no remarks. I credit Sturdivant. In February 1984 RDS and District 2-A executed a collective-bargaining agreement effective from 20 De- cember 1983 until 20 December 1986.142 Ryder Co- Counsel Onufrieff, who negotiated the agreement, said that DeVaney objected to some of the provisions, and that they were changed to increase the benefits in ac- cordance with a "master agreement," at increased cost to the Company. Sturdivant testified that the Company had previously insisted that drivers split the $9.25 hourly rate when both were required to complete a delivery within the specified time limit. Later, however, Perry agreed that both would be paid the full rate on prior notification to the Company. Also, the originally planned weekly ro- tation of drivers (on routes) was changed to monthly ro- tation. 143 K. The Alleged Violations of Section 8(a)(1) and (2) of the Act 1. The complaint allegations Paragraphs 12, 13, 14, and 25 of the consolidated com- plaint allege that Ryder unlawfully interfered with em- ployee rights-Dick Perry, by directing an employee to attend a meeting for the purpose of securing signatures on District 2-A cards; David Crowley, by telling an em- ployee that Ryder employees were signing District 2-A cards and that Ryder wanted District 2-A; and Jim Hulsey, by (1) encouraging employees to vote in favor of ratification of a collective-bargaining agreement between Ryder and District 2-A, (2) telling employees that Ryder would close its Memphis facility if the agreement was re- jected and the Teamsters obtained bargaining rights, and (3) informing an employee that Ryder did not want to employ former Diesel Recon drivers with the Teamsters' attitude. Paragraphs 15 and 26 of the complaint allege that simi- lar conduct was also engaged in by Supervisors Raper and Johnson, and assert that Ryder permitted District 2- A to use its facilities for the purpose of obtaining check- off authorizations. All such activities are alleged to be violative of Section 8(a)(2). Finally, paragraphs 16 and 26 allege that Ryder violat- ed Section 8(a)(2) and (1) by granting recognition to Dis- trict 2-A as the exclusive bargaining representative of its employees, and by entering into a collective-bargaining agreement with District 2-A. 2. The allegations pertaining to Crowley Crowley was a Ryder employee. A summary of his ac- tivities shows that he went to Ohio and solicited appli- cants for employment with Ryder in Memphis. Crowley introduced himself as a "business representative" of Ryder, and told the applicants that he guaranteed them a job. He then transported them to Ryder's office in Mem- 142 G C Exh 23 143 At the hearing, the General Counsel argued that Ryder, by in- creasing the benefits in its contract, was thereby " assisting" District 2-A This argument is not repeated in the General Counsel's posthearing brief. 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD phis, and paid for their lodgings and meals. Crowley was reimbursed for these expenditures by Ryder. He solicited signatures on District 2-A cards during the trip. His statement about a job guarantee was repeated by Ryder supervisors to the applicants prior to their taking em- ployment tests. At the first orientation meeting, Crowley again solicit- ed signatures on District 2-A cards, this time in the pres- ence of supervisors, and told Operations Director John- son that he had obtained signatures on 30 cards. In the presence of other employees, Operations Manager Perry asked Crowley whether he "got them all," and the latter replied, "Most of them." At least one employee (Sprad- lin) perceived Crowley to be a "kind of boss," and fol- lowed his orders. The evidence shows that Crowley handed Whitlock a District 2-A card and told him that Ryder wanted Dis- trict 2-A, and that Ryder employees were signing.144 In these circumstances, I conclude that the employees could reasonably believe that what Crowley said reflect- ed company policy and that he was acting for manage- ment.145 This conclusion is buttressed by the fact that neither Johnson nor Perry disavowed Crowley's ac- tions.146 Indeed, the exchange between Crowley and Perry amounted to ratification of Crowley's actions by Ryder. Accordingly, I conclude that Crowley was Ryder's agent, and that the Company is responsible for his soliciting signatures on District 2-A cards, including Whitlock's. The Board has recently held that such solicitation, by an employer's agent, constitutes unlawful assistance of a labor organization and is violative of Section 8(a)(2) and (1).147 The Board previously reached a similar conclu- sion with judicial approval, 148 and I make the same find- ing herein. 3. The allegations pertaining to Perry, Johnson, Raper, and Hulsey The evidence shows that Ryder called a meeting of its drivers (excluding former Diesel Recon drivers) in De- cember 1983 at Diesel Recon's Pershing Street plant, and that Ryder supervisors notified employees to attend. During a break in that meeting, while supervisors were present, a Ryder agent (Crowley) distributed and ob- tained signatures on District 2-A cards. At the end of the meeting, when signatures were again being solicited, Su- pervisor Perry directed employee Whitlock to reenter the room so that "they" could talk to him at a time when, Perry well knew, Crowley was soliciting signa- 144 When Whitlock expressed reluctance about signing , Crowley told him, "If I was you, I would sign " 141 Jules V. Lane, D.D.S., PC, 262 NLRB 118, 119 (1982) See also NLRB v. Solboro Knitting Mills, 572 F 2d 936 (2d Cir 1978), enfg as modified 227 NLRB 738 (1977), Conan Corp, 261 NLRB 1189, 1252 (1982), enfd as modified 721 F 2d 1355 (D.C Cir 1983), Albertson 's, Inc, 267 NLRB 534, 538-539 (1983). 141 John G Merkel & Sons, 232 NLRB 140, 152 (1977), Sewell, Inc., 207 NLRB 325 fn 2, 332 (1973) 147 Denver Lamb Co, 269 NLRB 508 fn 2 (1984) 1411 Mason City Dressed Beef 231 NLRB 735 (1977), enfd as modified sub nom Packing House & Industrial Services v NLRB, 590 F 2d 688 (8th Cir 1978) tures. This constituted encouragement of Whitlock by Perry to sign a card, and was violative of the Act.149 A few days later, Ryder recognized District 2-A, and still later entered into a collective-bargaining agreement with it. When employees Roser and Todd reapplied for employment in the spring of 1984, Supervisor Hulsey told them that he could not use them if they had a "Teamster attitude," or a "Teamster frame of mind." These statements constituted threats of discrimination against employees if they supported a union not favored by Ryder, and were violative of the Act. 150 The fact that District 2-A, through Crowley, gave Spradlin a gift of $200 to supplement the latter' s salary when he was acting as a "guard" and "strikebreaker" for Ryder and the fact that District 2-A's vice president, De- Vaney, was permitted to speak to Ryder employees at the end of the January 1984 meeting paid for by Ryder constitute additional evidence of the close cooperation between Ryder and District 2-A, engaged in for the pur- pose of establishing District 2-A representation of Ryder's Diesel Recon account employees. The Board has recently concluded, with judicial ap- proval, that the totality of circumstances, including both prerecognition and postrecognition conduct, must be considered in determining whether an employer has ren- dered unlawful assistance to a union. Farmer's Energy Corp., 266 NLRB 722 (1983), enfd. 730 F.2d 1098 (7th Cir. 1984). Under similar circumstances, including union organizational activities in facilities controlled by the em- ployer151 and threats of discharge, the Board in Farmers Energy concluded that the employer had rendered un- lawful assistance to the union. I reach the same conclu- sion in this case and find that Ryder, by permitting facili- ties controlled by it to be used for organizational pur- poses in the context of solicitation of District 2-A cards by a Ryder agent, by the direction of an employee back to the room where this solicitation was taking place, by the subsequent recognition of, and collective-bargaining agreement executed with, District 2-A, and by the threats of discrimination by Supervisor Hulsey, thereby violated Section 8(a)(2) and (1) of the Act. I also conclude that, by extending such recognition and entering into such agreement with District 2-A at a time when it did not represent an uncoerced majority of its drivers, Ryder further violated the same sections of the Act. 1s2 149 McKesson Drug Co, 257 NLRB 468, 472 (1981) '5° Crest Tankers, 270 NLRB 40 (1984), McGraw Edison Co, 259 NLRB 702 (1981), Yaloz Mold & Die Co, 256 NLRB 30 (1981), Fresno Townehouse, 246 NLRB 1053, 1068 (1979) 111 The fact that Ryder used Diesel Recon's Pershing Street plant for the meeting rather than its own is irrelevant As appears hereinafter, Ryder used Diesel Recon's Breedlove location to perform its transporta- tion services under the contract, without any evidence of a lease or rental payments. There is no distinction between either employer with respect to ownership of plant facilities, insofar as the performance under the con- tract is concerned 152 Farmers Energy Corp., supra, MGR Equipment Corp, 272 NLRB 353 (1984), Mason City Dressed Beef, supra at fn 149; NLRB v Gold Standard Enterprises, 679 F 2d 673 (7th Cir 1982), enfg. 249 NLRB 356 (1980), Maritime Union v NLRB, mem 683 F 2d 305 (9th Cir 1982), enfg Monfort of Colorado, Inc, 256 NLRB 612 (1981) RYDER SYSTEM Inasmuch as there is no evidence of a threat of plant closure, as alleged in the complaint, I shall recommend that this allegation be dismissed . The complaint also al- leges that Supervisor Hulsey encouraged employees to ratify the District 2-A collective-bargaining agreement, but the only evidence thereof pertains to Raper. At the close of the hearing, the General Counsel moved to amend the pleadings to conform to the proof, and Ryder opposed the motion . As the foregoing matters were not fully litigated, I shall recommend their dismissal, and I deny the General Counsel's motion only insofar as it per- tains to these matters. L. The Alleged Violations of Section 8(a)(3) 1. Substantive issues The complaint alleges that Ryder failed and refused to hire 32 former Diesel Recon drivers because they joined, supported, or assisted the Teamsters . The first issue is whether the General Counsel has established a prima facie case of a discriminatory refusal to hire these 32 in- dividuals . In the instance of a prima facie case of a dis- criminatory discharge, the employer's burden is to estab- lish that the employee would have been fired, for permis- sible reasons, even if he had not been engaged in protect- ed activities. NLRB v. Transportation Management Corp., 462 U.S. 393 ( 1983); Wright Line, 251 NLRB 1083 (1980), enfd . 662 F.2d 899 (1st Cir. 1981), cert , denied 455 U.S. 989 (1982). When the General Counsel's prima facie case establishes a discriminatory refusal to hire, the employer's burden is to establish that its failure to hire the alleged discriminatees was for reasons apart from the protected activities which support the prima facie case. Crest Tankers, supra at fn. 151. There is abundant evidence to support a prima facie case that Ryder refused to hire the alleged discriminatees because of their support of the Teamsters . The record shows that Ryder planned to replace Local 667 with District 2-A to represent its drivers in the newly ac- quired Diesel Recon account . To permit lawful recogni- tion of District 2-A, Ryder needed a majority of District 2-A members in its new employee complement. This would have been impossible if all or most of the appli- cants from Diesel Recon had been hired . Accordingly, Ryder hired only 8 out of 40 applicants from Diesel Recon, and filled other positions with different appli- cants. The remaining applicants from Diesel Recon were denied employment. The evidence to support these conclusions is explicit. Operations Manager Perry said that Ryder was hiring drivers from the North, despite its other applications, to get the union that it wanted . Senior Operations Manager Raper admitted that he did not intend to hire all the Diesel Recon drivers , else Ryder would have had the "same problems" that Diesel Recon experienced. Oper- ations Supervisor Hulsey frankly stated his opposition to "the Teamster attitude." Perry added that the Company intended to hire 10 Diesel Recon drivers153 "to keep the 153 Actually, eight Diesel Recon drivers were hired 1047 NLRB off his ass." This suggests that Ryder knew that its hiring practices were unlawful , and intended to hire a token number of Diesel Recon drivers to create the ap- pearance of legality. Ryder transferred half its complement of drivers as- signed to the Sunbeam account-who were represented by District 2-A-into the Diesel Recon account , despite the fact that the Sunbeam account did not close until several months later. At the same time that it made these transfers, Ryder rejected the application of the Team- sters steward for employment in the Diesel Recon ac- count and instead employed him in the Sunbeam ac- count. There is no apparent reason for these actions except an intention to keep the Teamsters steward out of the Diesel Recon account and to load up that account with District 2-A members. The Company utilized a discriminatory employment procedure. Applicants living in the northern part of the country were sought out and solicited , guaranteed jobs by a Ryder agent, transported to Memphis with all ex- penses paid, and then again guaranteed jobs by Ryder su- pervisors before taking any employment tests. Diesel Recon drivers who lived in Memphis were not solicited, and were required to take tests before being hired. The tests themselves were discriminatorily administered be- cause Ryder purported to rely on information derived from the tests as a reason for denying employment to Diesel Recon applicants, but ignored similar or worse in- formation when hiring other applicants . Although Ryder, in some cases, gave unanswered VSA questions as the reason Diesel Recon applicants were not hired, in other cases it hired applicants who similarly left ques- tions unanswered. Ryder recognized District 2-A a few days after the District 2-A cards were signed, and thereafter signed a collective-bargaining agreement with it . Once this had been accomplished , Ryder hired some Diesel Recon drivers whose applications had been originally denied be- cause, Operations Manager Perry said , they were really good drivers. Some of these facts are similar to those relied on by the Board in Mason City Dressed Beef154 to warrant a finding of discriminatory refusal to hire. As summarized by the Court of Appeals for the Eighth Circuit in that case, those facts included a prohibition on hiring of former employees, "considerable money and effort .. . expended in obtaining less experienced workers from a distant city without any corresponding attempts to con- tact former . . . employees," and a delay in hiring former employees.' 55 The evidence of discriminatory motivation herein is considerably stronger than that in Mason City Dressed Beef. I conclude that the General Counsel has established a very strong prima facie case of an unlawful refusal by Ryder to hire all 32 individuals alleged in the complaint. I also conclude that Ryder has not met its burden of establishing that it would have failed to hire them for reasons apart from their support of the Teamsters. 154 Supra at fn 149 155 Packing House & Industrial Services v NLRB, supra, 590 F 2d at 695 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ryder offers a variety of reasons for its failure to hire certain drivers. With respect to five applicants,156 Ryder contended that they were not hired because they failed to call back for an interview. However, Ryder did not tell the applicants to call back-it informed them that it, Ryder, would get in touch with them after they had filed an application. Other drlvers157 attempted to make ap- pointments, but were unable to do so. One applicant'58 went to the Ryder office and asked for an application, but was refused. Respondent erroneously denied that one applicantl59 had filed, and contended that another appli- cation160 had been burned or destroyed-only to have it mysteriously turn up at the hearing in good condition. Ryder asserted that it made its final decision on driv- ers to be hired in late November, and that one applica- tion thereafter was too late. 161 However, Ryder contin- ued hiring or transferring (Sunbeam) drivers thereafter for the Diesel Recon account. In fact, one of the appli- cants did not file an application until March 1983, for medical reasons, 162 was told that Ryder was then hiring, filed an application, but was not hired. Although Jerry Ferguson refused to take the VSA test, the Company's discriminatory use of it shows that it would have been useless for Ferguson to have done so. As the Court of Appeals for the Eighth Circuit has pointed out, "[it] is settled as a legal matter that 'an em- ployee need not follow the letter of an employer's hiring procedure where the circumstances make it clear that a rebuff would result."'163 I conclude that Ryder's stated reasons for not hiring various applicants, based on deficiencies in the applica- tion process, are pretextual. The evidence submitted by Ryder fails to support its other asserted reasons for fail- ing to hire various Diesel Recon applicants. The "bad driving record" reason is pretextual because DPD hired other drivers with worse records, and was chastised by its sister company, RTR, for allowing such drivers to use RTR equipment. The Company's arguments based on as- serted theft from prior employers is not persuasive be- cause the incidents were either trivial, occurred in the remote past when the applicant was young, or did not constitute theft in the first place. Ryder did not apply the same standards to other applicants since three of them admitted stealing from a former employer and one had been convicted of a felony-yet all were hired. The Company's protestations that it did not hire other Diesel Recon drivers because they took drugs, consumed pep pills, or occasionally had a beer or a drink at a stop are not believable because Ryder hired other drivers who "smoked grass," took drugs, or needed pep pills to stay awake while driving. No Diesel Recon driver had a DWI conviction-yet DPD hired other drivers who, in 166 Allen Thomas, Carl Briscoe, William Shillmgburg, Marshall Neal Sexton, and Tommy Bracken 167 Ron Galhgher and Richard Roser 158 Franklin Barble 166 Willie Jones. 160 Application of Richard Roser 161 Larry Elmore 162 Wyman David Elmore 163 Packing House & Industrial Services v. NLRB, supra, 590 F 2d at 696 RTR's opinion, were guilty of "reckless, careless, and abusive handling of a motor vehicle." Ryder's complaints about "bad attitudes" are particu- larly weak because, in most instances, Ryder's witness could not even remember what the "bad attitude" was or, in the case of Norris Harris, was vague. In some cases, Ryder, after recognition of District 2-A and execu- tion of the contract, hired applicants it had previously rejected, despite their assertedly "bad" attitudes. Where there is evidence that a personnel action against an em- ployee has been motivated by protected activities, an em- ployer's assertion that such action was justified by the employee's "bad attitude," without more, is an insuffi- cient defense.164 The Company's stated reason for not hiring Homer Parsley is invalid because James George also had a medi- cal condition and, unlike Parsley, was hired after passing a medical examination . Parsley was not given this oppor- tunity, although he was performing driving duties satis- factorily for Diesel Recon at the time of his application with Ryder. I therefore conclude that Ryder has not rebutted the General Counsel's prima facie case with respect to any of the 32 alleged discriminatees. 2. Ryder's 10(b) defense As noted, Ryder contends that some of the 8(a)(3) alle- gations are time barred by Section 10(b) of the Act. One of these pertains to Harold Baker. However, as set forth above, the only evidence of direct notice to Baker from Ryder that he was not being hired for the Diesel Recon account took place on 2 December 1983. This was less than 6 months prior to 30 May 1984, when the amended charge in Case 26-CA-10714 was filed, alleging Ryder's discriminatory refusal to hire Diesel Recon drivers. This part of the evidence does not sustain Ryder's defense. However, Ryder also relies on Roser's testimony that Baker was "in the [Diesel Recon] office" about a week before, when some drivers learned from Diesel Recon personnel that only eight drivers were being hired. This asserted notice occurred about 1 week before the begin- ning of the statutory 6-month period preceding the filing of the amended charge. Richard Roser was never informed directly by Ryder that he was not being hired. During his last week of em- ployment by Diesel Recon, in late November 1983, he learned from Diesel Recon office personnel and drivers that Ryder had made its selection of eight drivers, and that this was all Ryder was going to hire. Ryder never said this to Roser. In fact, when Roser spoke to Hulsey about May 1984, Hulsey told Roser that the Company did not have Roser's original application. Roser was then hired as a casual driver. As indicated, Ryder's argument pertaining to Marshall Sexton, like its position on Baker, is based on Roser's tes- timony that Sexton was "in the [Diesel Recon] office" when Roser learned, from Diesel Recon office personnel and drivers, that Ryder was only hiring eight drivers. 164 Storall Mfg Co, 275 NLRB 220 (1985) RYDER SYSTEM Because the only evidence of direct notice to Baker is within the statutory period, and because there is no evi- dence that Ryder ever notified Roser or Sexton of its de- cision not to hire them, Ryder's 10(b) argument, with re- spect to these alleged discriminatees, is without merit. t 6 s Ryder's argument with respect to Russell Taylor, Wayne Smith, and Troy Hinton is based on their testi- monies that, in the last days of November 1983, they called Ryder and were informed that they had not been hired. With respect to these alleged discriminatees-and Baker, Roser, and Sexton-the original charge in Case 26-CA-10714 was filed on 26 April 1984, less than 6 months after any notice to the alleged discriminatees. The charge alleges that Ryder, inter alia, dominated or interfered with the formation and administration of Dis- trict 2-A, and refused to bargain with the Teamsters, in violation of Section 8(a)(2) and (5). As set forth above, the charge had a "catch-all" clause alleging other viola- tions of the Act. Thereafter, on 30 May 1984, the amend- ed charge was filed and alleged that Ryder discrimina- torily refused to hire former Diesel Recon drivers. The consolidated complaint and an amendment thereto then alleged unlawful discrimination against 32 named individ- uals, including the 6 considered herein. The Supreme Court has concluded that the charge is not a formal pleading, and that its function is not to give the Respondent notice of the exact charges against it. This is the function of the complaint. 161 The adequacy of a charge to support a complaint has been considered by the Court of Appeals for the Fifth Circuit in NLRB v. Central Power & Light Co., 425 F.2d 1318 (5th Cir 1970), enfg. 173 NLRB 287 (1968). In that case, the original charge alleged a discriminatory dis- charge and "other acts and conduct" interfering with Section 7 rights. A second charge, filed outside the period of limitation, alleged other violations, and several complaints were issued. At the hearing, the General Counsel moved to amend the consolidated complaint to allege an unlawful no-solicitation rule, which had not been mentioned in any of the charges. A finding of a vio- lation on this allegation was challenged by the respond- ent on the ground that it was barred by Section 10(b). In sustaining the Board, the court stated as follows: Under these circumstances, the issue was properly brought before the Board by the first charge. The purpose of a charge is to set a board [sic] inquiry in motion. The inquiry may turn up events not specifi- cally contemplated by the charge, but the Board's duty to the public then requires it to complain of those events if they are unfair labor practices. The charge is thus not intended to be a detailed pleading or to specify the issues ultimately to be raised before the Trial Examiner; the Board's complaint serves that function. All that the requirement is really concerned about is that the instigation of an investigation and complaint proceed under a formal charge made by the party aggrieved and not from the Board's own initiative. Accordingly , general al- '81 J A Croson Co, 274 NLRB 149 (1984) 166 NLRB v Font Milling Co, 360 U S. 301 (1959) 1049 legations such as that the employer "by other acts and conduct . . . interfered with, restrained and co- erced its employees in the exercise of their rights guaranteed in section 7 of the Act," as the charge here alleged, are legally sufficient to cause inclusion of other acts if they are sufficiently related to the specific acts alleged. And sufficient relation has gen- erally been found between acts that are part of the same course of conduct, such as a single campaign against a union. [Authorities cited.] All of the cases recognize that the Board has "broad leeway" in conducting its investigation and bringing its com- plaint. In this case, since the events complained of were all part of the same alleged anti-union cam- paign, were close together in time, and were clearly covered by the general language of the formal charge, there is little merit to any argument that the first charge did not authorize the Board to complain of the no-solicitation rule.167 Ryder's discrimination against the Diesel Recon driv- ers was an integral part of its plan to replace the Team- sters with District 2-A. Indeed, if Diesel Recon drivers had formed a majority of Ryder's initial complement of drivers, effectuation of this plan would have been impos- sible. The discriminatory refusal to hire Diesel Recon drivers took place within the same time framework as Ryder's acts of unlawful assistance in support of District 2-A alleged in the original charge. The discrimination was therefore related to those acts which are specifically alleged, and is comprised within the catchall clause alleg- ing other unlawful acts. Accordingly, the catchall clause is sufficient to support the complaint allegation of dis- crimination. The original charge did not specifically mention Sec- tion 8(a)(3). However, the amended charge did allege violation of this section. In this connection, the Board has stated as follows: While we agree . . . that the catchall printed lan- guage in the charge does not embrace any and all violations of Section 8(a)(2), (3), (4), and (5) which might have occurred within the 6-month period prior to the filing of the charge, It [sic] is well set- tled that the complaint may allege violations of a different section of the Act than that alleged in the charge if they are closely related to the violations named in the charge. Similarly, an amended charge, although filed more than 6 months after the occur- rence of the unfair labor practice, will be timely if it related to an unfair labor practice inherent in or connected with the original charge. t 68 For the same reasons as those given above, the unlawful dis- crimination in this case alleged in the amended charge was related to and connected with an unfair labor practice alleged in the original charge. 117 425 F 2d at 1320-1321 Accord- Gulf State Mfr& v. NLRB, 579 F 2d 1298 (5th Or 1978), enfg as modified 230 NLRB 558 (1977); Proc- tor & Gamble Mfg Co v NLRB, 658 F 2d 968 (4th Cir 1981), enfg as modified 248 NLRB 953 (1980) 168 Sunrise Manor Nursing Home, 199 NLRB 1120, 1121 (1972) 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, I find that Ryder's 10(b) defense is with- out merit. 3. Conclusion I therefore conclude that Ryder refused to hire each of the discriminatees alleged in the complaint because of his support of the Teamsters or Ryder's belief in such support. In cases in which an individual discriminatee did not testify and there is no record evidence of his union affiliation, or when there is evidence of nonmem- bership (as in the case of Jerry Ferguson), I find that Ryder's refusal to hire was based on its belief that the individual supported the Teamsters. This finding is based on the Teamsters representation of the Diesel Recon drivers, the statements made by Ryder supervisors, and Ryder's imposition of a quota with respect to the hiring of Diesel Recon drivers-because they were Team- sters.169 In cases of applications filed prior to the startup date of 3 December 1983, the date of discrimination began on the startup date. In the cases of applications filed thereaf- ter, the date of discrimination began on that date. In in- stances when the applicant was later hired but dis- charged,170 or hired as a casual driver rather than as a full-time employee, the evidence cited above establishes that Ryder's actions were based on discriminatory rea- sons. Although Harold Baker was employed in the Sunbeam account on or soon after the startup date, he was not em- ployed in the Diesel Recon account for which he had applied, for unlawful reasons, and was thus denied access to those former Diesel Recon drivers who were hired and for whom he had previously served as a Teamsters steward. In addition, it is by no means clear that Baker, as a driver on the Sunbeam account, received the same pay and other benefits which he would have received if he had been assigned to the Diesel Recon account. Ac- cordingly, Ryder's refusal to assign him to the Diesel Recon account at the outset was unlawful.171 M. The Alleged Violation of Section 8(a)(5) 1. The appropriate unit and the refusal to bargain As described above, the Charging Party was certified in October 1972 as the exclusive bargaining representa- tive of employees employed by Diesel Recon in the fol- lowing unit: All over-the-road truckdrivers employed by the em- ployer at its Memphis, Tennessee, location, exclud- 166 With respect to this finding , I grant the General Counsel's motion to conform the pleadings to the proof, inasmuch as the belief of Ryder supervisors that Diesel Recon drivers supported the Teamsters is estab- lished by record evidence, and was fully litigated See, e g , Roser's testi- mony that he told Hulsey that he knew some Diesel Recon drivers who were unemployed, and asked Hulsey whether he should ask them to submit applications , and Hulsey's admission at the hearing that he replied to Roser that Ryder did not want drivers with "a Teamster like attitude " 170 Willie Jones. 171 In light of my conclusions , I find it unnecessary to pass on the General Counsel's argument that I make an adverse inference based on Ryder's alleged failure to supply the originals of the VSA tests of various other applicants whom Ryder did hire ing all other employees, office clerical employees, guards and supervisors as defined in the Act.l72 As further delineated above, Diesel Recon and the Teamsters entered into a collective-bargaining agree- ment, effective 1 December 1980 and ending 30 Novem- ber 1983, whereby Diesel Recon recognized the Team- sters as the exclusive bargaining representative of em- ployees in a unit described in substantially the same lan- guage as that set forth in the certification.173 On 18 No- vember 1983 the parties entered into a supplemental agreement extending the contract to 3 December 1983, the scheduled date for the takeover by Ryder.174 The complaint, as amended at the hearing, alleges that a unit appropriate for collective bargaining consists of all over-the-road truckdrivers "employed by Respondent through its Diesel Recon account, at its Memphis, Ten- nessee, location, who are engaged in transporting goods for Diesel Recon," with the same exclusions as those set forth in the certification. 17 s At the hearing, Ryder indicated agreement with the General Counsel's proposed unit, on condition that the word "Respondent" be changed to "Ryder Distribution Systems," and the words "full time" be added to the de- scription of over-the-road truckdrivers. The General Counsel accepted the former change, and opposed the latter. The change agreed to by the parties does not vary in substance from the unit description set forth in the certification and the prior contract, whereas Ryder's pro- posed change in the description of the truckdrivers varies unnecessarily from the language of the certifica- tion. The relationship between RDS and DPD is discussed above as well as the fact that, on 12 October 1983, Diesel Recon entered into a transportation agreement with DPD, whereby the latter agreed to provide vehi- cles and drivers for Diesel Recon. Based on the entire record, I find the appropriate unit to be that stated in the General Counsel's amended com- plaint set forth above, but substituting for the word "Re- spondent" the words "Ryder Distribution Systems, Inc. and DPD, Inc.," and substituting the word "their" for the word "its" in the phrases "its Diesel Recon account," and "its Memphis, Tennessee, location." The pleadings establish that, about 5 June 1984, the Teamsters, by letter, demanded that Ryder176 recognize and bargain with the Teamsters as the exclusive bargain- ing representative of the employees in the foregoing unit and that Ryder refused to do so. 2. The successorship issue a. The successorship criteria In Burns Security Services v. NLRB, 406 U.S. 272 (1972), the Supreme Court held that , although a new em- ployer was not in all circumstances obligated to honor a 171 G C Exhs 2 and 3 176 G C Exh 5 174 G C Exh 6 171GC Exh 2 176 Designating, in this instance , RDS and DPD RYDER SYSTEM collective-bargaining agreement entered into by a prede- cessor, "where the bargaining unit remains unchanged and a majority of the employees hired by the new em- ployer are represented by a recently certified bargaining agent there is little basis for faulting the Board's imple- mentation of the expressed mandates of Section 8(a)(5) and Section 9(a) by ordering the employer to bargain with the incumbent union." 406 U.S. at 281. In Grico Corp., 265 NLRB 1344 (1982), the Board's finding of successorship was based on a series of collec- tive-bargaining agreements between the union and the predecessor. The Board stated that the "traditional test is whether there is substantial continuity in the employing enterprise. Where there is such a continuity, the pre- sumption of majority status by the union under the pred- ecessor, such as established by a collective bargaining agreement . . . is not affected by a change in ownership. The traditional criteria for this test include whether there has been substantial continuity in the following: (1) busi- ness operations; (2) plant; (3) work force; (4) jobs and working conditions; (5) supervisors; (6) machinery, equipment, and methods of production; and (7) product or service." 265 NLRB at 1345. More recently, the Board has accepted the conclusion of an administrative law judge that the "chief" consider- ation in determining successorship is the continuity of the work force, i.e., the majority question. "The other factors are the degrees of continuity in the employing in- dustry, continuity with respect to the appropriate bar- gaining unit, and the impact of any hiatus in operations." Sherwood Trucking Co., 270 NLRB 445, 448 (1984). b. The presumed continuity of the workforce Ryder submitted numerous documents to the General Counsel, in response to a subpoena. The General Coun- sel introduced, without opposition from Ryder, a compi- lation of Ryder employees in the unit on the date the Teamsters' demand was received by Ryder. This compi- lation shows that Ryder then employed a total of 40 em- ployees in the unit, of which 11 were former Diesel Recon employees. i 7 7 They consisted of the eight Diesel Recon drivers originally hired by Ryder at the time of the startup, and three i 7 s who were discriminatorily denied employment at that time, but subsequently hired. It is plain that, at the time of receipt of Teamsters' demand, Ryder did not employ a majority of former Diesel Recon drivers in the Diesel Recon account. It is also plain, however, that, but for Ryder's unlawful refus- al to hire the 32 former Diesel Recon drivers who ap- plied for employment, such drivers would have formed the preponderant majority, if not the entirety, of Ryder's employee complement at the time of receipt of the Teamsters' demand. In similar circumstances, the Board, with judicial ap- proval, accepted the conclusion of an administrative law judge that majority status is "presumed as a matter of 177 G C Exh 61(a) The former Diesel Recon employees were Harold Baker, Billy Davis, Carroll Etheridge, James George, Leroy McKelroy, Zane Murphy, John Partain , Olin Purvis, James Tarver, Dale Wadley, and Vernon Wilson. A 12th employee, Milton Boles, was listed as a casual employee 178 Harold Baker, John Partam, and Vernon Wilson 1051 law." Foodway of El Paso, 201 NLRB 933, 938 (1973), enfd. 496 F.2d 117 (5th Cir. 1974). In its enforcing deci- sion, the Court of Appeals for the Fifth Circuit stated as follows (496 F.2d at 120): It is manifest that but for [the successor's] discrimi- natory refusal to offer employment to [the predeces- sor's] unit employees, the Union would have contin- ued to enjoy a majority representative status. We decline to permit an employer to rely upon its own wrongdoing and thus avoid its legal responsibilities. [See Burns, supra at 280 fn. 5.] The Board adhered to this principle in Fresno Towne- house, supra at fn. 151, and, still more recently, in Sher- wood Trucking Co., supra, and J.R.R. Realty Co., 273 NLRB 1523 (1985). I therefore find that, at the time of Ryder's receipt of the Teamsters' demand, the fact that the latter represent- ed a majority of Ryder's employees in the appropriate unit is presumed as a matter of law. c. Continuity of plants being utilized Prior to the takeover by Ryder, Diesel Recon drivers picked up Ryder tractors and trailers at Ryder's facility on Delp Street in Memphis, and were dispatched from Diesel Recon's facility on Breedlove Avenue. After the takeover, the Ryder equipment was picked up at Ryder's facility on North Manassas Street, but the dispatching continued to be made from Diesel Recon's Breedlove Avenue facility. To accomplish this, Ryder set up offices at that facility Sharon Pelt, a Ryder employee, dis- patched city drivers and did clerical work, while Faye McNabb, a Diesel Recon employee, prepared bills of lading. This office was utilized by Ryder supervisors. The telephone numbers remained the same as they had been when Diesel Recon was dispatching the drivers. Robert Haile, Diesel Recon's vice president of human re- sources, testified that he was unaware of any lease ar- rangement between Ryder and Diesel Recon concerning this facility. d. Continuity of product and service Prior to the takeover, Diesel Recon delivered rebuilt "Cummins" engines to its customers throughout the United States and Canada, and picked up "cores" from these customers to be returned to its remanufacturing plant on Pershing Street in Memphis . These products and services remained the same after Ryder assumed its functions under the transportation contract. e. Jobs and working conditions Dennis Campbell, RDS director of system design, tes- tified that Ryder eliminated the bid route system, and utilized a system of rotating drivers on routes. Ryder also increased the number of two-man teams, and de- creased the number of single drivers. It eliminated a 5- cent-per-mile expense item which Diesel Recon allowed to drivers. The rates paid to the drivers "were pretty close" under Diesel Recon and Ryder, according to Campbell. Some new stops in Canada were added. 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Except for these changes, the jobs continued to be the driving of trucks to Diesel Recon customers throughout the United States and Canada. Under Diesel Recon, the trucks were loaded by personnel other than drivers, and this practice continued under Ryder. f. Business operations and equipment (1) Summary of the evidence RDS Executive Campbell asserted certain changes in operations resulting in economies in distribution. 179 Diesel Recon customer orders were shipped on a fixed day each week, regardless of the amount of the order or other orders. As a consequence, some trucks were not fully loaded. Under Ryder, the customer was no longer allowed delivery on a fixed day, but, rather, was given 48 hours' notice of delivery. As a result of this change, the trucks were more fully loaded. Campbell also said that the "routes" were "redone" to add more "stops" per route, and permit more efficient operations. The number of routes was reduced from 18 to 16, and weekly mileage dropped from 48,000 to 42,200. In addition, according to Campbell, the number of tractors was reduced from 18 to 14. Prior to the takeover, Diesel Recon had used leased equipment from RTR, and DPD continued this arrange- ment. Campbell said that new freightliner tractors were being added, and that the entire fleet was in the process of being renewed. There is also a new "piggy-back oper- ation" on the West Coast. Campbell's testimony is un- clear on the issue of whether Ryder's asserted change of equipment when it was dispatching the drivers differed from the practice when Diesel Recon was doing so. At one point, Campbell said that Diesel Recon did not change any equipment despite RTR's recommendations, but then asserted that it had done so in the past, but not as "rapidly" as Ryder was changing equipment under the new transportation agreement. Ryder says that it was required to get ICC approval to conduct a "dedicated" carriage operation, whereby all designated equipment is used for only one customer. Diesel Recon did not have this requirement. Harold Baker testified that the Company was operat- ing with new freightliners, but saw no difference in the work except a difference in paperwork. However, he agreed that the routes have been changed, and that the drivers do not make bids. Billy Davis agreed that the bid runs have disappeared, and that the equipment has changed, but denied any change in the routes-they were always changing under Diesel Recon. James 179 Campbell testified about a written proposal which Ryder made to Diesel Recon, which allegedly would have affected economies . The pro- posal was in the hearing room, and the General Counsel objected to Campbell's testimony on the ground that the written proposal itself was the best evidence Ryder counsel argued that the written proposal con- tained valuable trade secrets, and that he did not have his client's permis- sion to introduce the document However, counsel was allowed to elicit testimony from Campbell about the substance of the proposal. If such tes- timony accurately reflected what was in the document, then Ryder's trade secret argument is meaningless because the testimony voluntarily disclosed such secrets. If, on the other hand, Campbell's testimony dif- fered from the document, it may not have been accurate Campbell also testified about actual, as well as proposed , changes in operations. George and Richard Roser saw no difference in the work after Ryder took over, and Diesel Recon Vice President Haile said that he was unaware of any change in routes or equipment. (2) Factual analysis It is unlikely that Diesel Recon would have entered into a transportation agreement with Ryder under which the latter simply continued the prior operations-there would have been no point to such an agreement, or its expense to Diesel Recon. I conclude that there has been some change in the routes, that the method of ordering has been changed, that bid runs have been eliminated, and that some economies may have been effected. Al- though new equipment has been added, it is unclear whether this is a significantly different practice from the time when Diesel Recon was dispatching its drivers. Diesel Recon's practice of leasing trucks and trailers from RTR remained the same under DPD. The fact that Ryder had to get ICC approval to do that which Diesel Recon was performing itself does not appear to be a change in "business operations." g. Supervision As indicated above, Ryder performed its services under the contract with new supervisors. h. Conclusion In summary, the evidence establishes a presumption that the Teamsters represented a majority of Ryder's em- ployees in the appropriate unit at the time of receipt of the Teamsters' demand for bargaining. The plants being utilized continued to be substantially the same, and the service being performed-the delivery of Diesel Recon products to its customers-was identical under both op- erations. Although there was some increase in two-man teams, and elimination of an expense item and bid runs, the jobs and working conditions remained substantially the same-the drivers continued to drive trucks leased from Ryder throughout the United States and Canada and received compensation which was "very close" to that which was received under Diesel Recon. All of these factors support the complaint allegation of succes- sorship. Although there was some change in customer ordering and routes, this did not constitute a significantly different method of distribution-customers still placed orders, and drivers delivered them to the same locations. This is an insufficient change in operations to defeat a finding of successorship.'8° Although Ryder replaced Diesel Recon's supervisors with its own, a change in manage- ment is insufficient to negate a finding of successorship where other factors warranting such finding are present.181 This is particularly the case where, as here, i80 Zim's IGA Foodliner v. NLRB, 495 F.2d 1131, 1141 (7th Cir 1974), enfg 201 NLRB 905 (1973), Harbor Cartage, Inc, 269 NLRB 927 (1984) 181 NLRB Y. Zayre Corp, 424 F 2d 1159, 1163 (5th Cir 1970), enfg 170 NLRB 1751 (1968). Woodrich Industries, 246 NLRB 43 (1979), cited by Ryder, is inapposite because, in that case , almost all the relevant cnte- na indicated the absence of successorship RYDER SYSTEM the new supervisors were the instruments which Ryder used to discriminate against the former Diesel Recon drivers. I therefore conclude that Ryder was a successor to Diesel Recon in the unit described above. 3. Conclusion on the 8(a)(5) allegation Ryder's final argument is based on the fact that the Teamsters' bargaining demand was made about 5 June 1984, more than 6 months after Ryder took over Diesel Recon's transportation functions on 3 December 1983. This is the date that Ryder had a full complement of workers and, if it was a successor, it had that status on that date. Ryder argues in its posthearing brief: "There- fore, if the date for determination of majority status is the date a full complement of workers is achieved, or December 3, 1983, then the 8(a)(5) allegations in this Complaint are time-barred as outside the 10(b) limitations period." Insofar as this argument refers to Section 10(b), it is simply a misstatement of the Act. Insofar as it suggests that a union waives its representative status unless it de- mands recognition immediately after having obtained ma- jority support, the argument is without precedent or merit. In this case, the Teamsters' majority status is the result of a legal presumption occasioned by Ryder's un- lawful discrimination against Diesel Recon drivers. That discrimination was carefully concealed by Ryder, with a token number of Diesel Recon drivers being hired as part of its dissimulation; a conclusion that discrimination in fact took place is based in part on events occurring after 3 December 1983. Ryder's argument, if sustained, would allow it to profit by its own wrongdoing. The only issue with respect to the time of the Team- sters' demand is whether the Union then represented a majority of Ryder's drivers in the Diesel Recon account. The documentary evidence listed above shows that such representation is presumed as a matter of law. I therefore conclude that Ryder, by refusing to recog- nize and bargain with the Teamsters on demand, violated Section 8(a)(5) and (1) of the Act. In accordance with my findings above, I make the fol- lowing CONCLUSIONS OF LAW 1. Respondents Ryder Distribution Systems, Inc. and DPD, Inc. are, jointly and severally, employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local Motor Freight Employees No. 667, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, and Dis- trict 2-A, Transportation, Technical, Warehouse, Indus- trial and Service Employees Union, affiliated with Dis- trict 2, MEBA-AMO, AFL-CIO, are, respectively, labor organizations within the meaning of Section 2(5) of the Act. 3. All over-the-road truckdrivers employed by Ryder Distribution Systems, Inc., and DPD, Inc., through their Diesel Recon Account, at their Memphis, Tennessee lo- cation, who are engaged in transporting goods for Diesel Recon, excluding all other employees, office clerical em- 1053 ployees, guards and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, Local Motor Freight Employees No. 667, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America has been the exclusive representative of all employees in the unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment and other terms and conditions of employ- ment, within the meaning of Section 9(a) of the Act. 5. On 9 December 1983 Respondents recognized Dis- trict 2-A, Transportation, Technical, Warehouse, Indus- trial and Service Employees Union, affiliated with Dis- trict 2, MEBA-AMO, AFL-CIO, as the exclusive bar- gaining representative of all employees in the unit and, in February 1984, entered into a collective-bargaining agreement with the labor organization covering the em- ployees in the appropriate unit. 6. By directing an employee to a meeting for the pur- pose of securing his signature on an authorization card for District 2-A, Transportation, Technical, Warehouse, Industrial and Service Employees Union, affiliated with District 2, MEBA-AMO, AFL-CIO, by telling employ- ees that Respondents wanted the labor organization and that Respondents' employees were signing authorization cards for it, and by informing an employee that Re- spondents did not want to employ former Diesel Recon drivers with the Teamsters attitude, Respondents thereby interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. 7. By otherwise encouraging employees to sign author- ization cards for District 2-A, Transportation, Technical, Warehouse, Industrial and Service Employees Union, af- filiated with District 2, MEBA-AMO, AFL-CIO, by recognizing and entering into a collective-bargaining agreement with the labor organization as the exclusive bargaining representative of all employees in the appro- priate unit, and by maintaining such agreement, at times when said labor organization did not represent an un- coerced majority of the employees, and by engaging in the acts set forth in Conclusion of Law 6, above, Re- spondents violated Section 8(a)(2) and (1) of the Act. 8. By failing and refusing to employ the 32 individuals named in footnote 3 of this decision as full-time truck- drivers in their Diesel Recon account because they assist- ed or supported Local Motor Freight Employees No. 667, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Respondents thereby discouraged membership in a labor organization, and discriminated against employees with regard to hire or tenure or terms and conditions of employment in violation of Section 8(a)(3) and (1) of the Act. 9. By failing and refusing on demand, on 5 June 1984, to recognize and bargain with Local Motor Freight Em- ployees No. 667, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondents violated Section 8(a)(5) and (1) of the Act. 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 10. The foregoing unfair labor practices constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. Respondents have not violated the Act except as herein specified. THE REMEDY It having been found that Respondents have engaged in certain unfair labor practices, it is recommended that they be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the pur- poses of the Act. Because of the wide-ranging and perva- sive nature of Respondents ' unfair labor practices, I shall recommend a broad cease-and -desist order. It has been found that Respondents discriminatorily failed to hire the 32 employees listed in footnote 3 of this decision. The beginning date of such discrimination was the startup date of 3 December 1983 in all cases except that of Larry Elmore, with respect to whom it was 4 December 1983, and that of Wyman David Elmore, with respect to whom it was 19 March 1984. As the evidence shows that Respondents' discrimination continued through periods of casual employment which they of- fered some of the individuals, it will be recommended that Respondents be ordered to offer each such individ- ual who has not already been reinstated an immediate position as full-time over-the-road truckdriver in their Diesel Recon account at their Memphis, Tennessee loca- tion or, if no such job is available, a substantially equiva- lent job, discharging if necessary any employee hired to fill the position, and to make each of them whole for any loss of earnings he may have suffered by reason of Re- spondents' unlawful refusal to hire him, by paying him a sum of money equal to the amount he would have earned from the date of Respondents' unlawful refusal to hire him to the date of an offer of employment as de- scribed above, or to the date of such employment if al- ready effected, 182 less net earnings during such period, with interest thereon to be computed on a quarterly basis in the manner established by the Board in F W. Wool- worth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).188 As the evidence shows that Respondents have employ- ment applications, voice stress analysis tests , and other records which they utilized to effect the unlawful dis- crimination herein, I shall recommend an expunction order. As the evidence further shows that Respondents un- lawfully failed and refused to bargain with the Team- sters, I shall recommend a bargaining order. On these findings of fact and conclusions of law and on the entire record, 184 I issue the following recom- mendedl85 182 Crest Tankers, supra, Mason City Dressed Beef supra. 185 See generally Isis Plumbing Co, 138 NLRB 716 (1962). 184 The General Counsel's unopposed motion to correct the transcript attached hereto as App. B is granted. [App. B has been omitted from publication.] 188 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 ORDER The Respondents, Ryder Distribution Systems, Inc., and DPD, Inc., jointly and severally, Memphis, Tennes- see, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Directing employees to meetings for the purpose of obtaining their signatures on authorization cards for Dis- trict 2-A, Transportation, Technical, Warehouse, Indus- trial and Service Employees Union, affiliated with Dis- trict 2, MEBA-AMO, AFL-CIO or any other labor or- ganization. (b) Telling employees that they want the labor organi- zation and that their employees are signing authorization cards for it. (c) Telling employees that they do not want employ- ees with Teamster attitudes. (d) Encouraging employee signatures on authorization cards for District 2-A, or any other labor organization. (e) Recognizing District 2-A or entering into or main- taining a collective- bargaining agreement with it or any other labor organization at such times as such labor orga- nization does not represent an uncoerced majority of their employees. (f) Refusing to hire or otherwise discriminating against applicants for employment because of their assistance to or support for Local Motor Freight Employees No. 667, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America or any other labor organization. (g) Refusing to recognize or bargain collectively with Local Motor Freight Employees No. 667, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive bargaining representative of employees in the following appropriate unit: All over-the-road truckdrivers employed by them through their Diesel Recon account at their Mem- phis, Tennessee, location, who are engaged in trans- porting goods for Diesel Recon, excluding all other employees, office clerical employees, guards and su- pervisors as defined in the Act. (h) In any other manner interfering with, restraining, 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 effectuate the policies of the Act. (a) Offer each individual named in footnote 3 of this decision full reinstatement to his former position as a full-time over-the-road truckdriver in their Diesel Recon account at their Memphis, Tennessee location, except those who have already been so reinstated or, if such po- sition no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges, dismissing, if necessary, any employee hired to fill such position. Board and all objections to them shall be deemed waived for all pur- poses RYDER SYSTEM (b) Make whole each discriminatee named in footnote 3 of this decision for any loss of pay he may have suf- fered by reason of the discrimination against him, in the manner described in the remedy section of the decision. (c) Remove from their records all employment appli- cations, voice stress analysis tests, tapes and recordings, and other records pertaining to each discriminatee named in footnote 3 of this decision, and notify each such discri- minatee in writing that such action has been taken and that nothing contained in such documents, tapes, or re- cordings will be used as a basis for future personnel action against him. (d) Withdraw and withhold from District 2-A, Trans- portation, Technical, Warehouse, Industrial and Service Employees Union, affiliated with District 2, MEBA- AMO, AFL-CIO recognition of it as the bargaining rep- resentative of the employees in the above-described ap- propriate unit, and void their collective-bargaining agree- ment entered into with such labor organization covering the employees. (e) Recognize and, on request, bargain collectively with Local Motor Freight Employees No. 667, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America as the ex- clusive collective bargaining-representative of all em- ployees in the appropriate unit described above and, if an agreement is reached, embody such agreement in a signed written contract. 1055 (f) 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. (g) Post at all their facilities in Memphis, Tennessee, including such facilities of Diesel Recon as they may be utilizing, copies of the attached notice marked "Appen- dix A." t 8 6 Copies of the notice, on forms provided by the Regional Director for Region 26, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not found herein. 186 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 Nation- al 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 "