Chancellor Transportation Co., Inc.

CHANCELLOR TRANSPORTATION CO. Chancellor Transportation Company, Inc. and Mo- lalla Union High School Association of Classi- fied Employees, affiliated with Oregon Associa- tion of Classified Employees, Oregon Education Association. Case 36-CA-4324 28 January 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 30 September 1983 Administrative Law Judge William L. Schmidt issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel and the Charging Party filed answering 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 conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Chancellor Transportation Company, Inc., Molalla, Oregon, its officers, agents, successors, and assigns, shall take the action set forth in the Order. CHAIRMAN DOTSON, dissenting. I would remand this proceeding to the judge for further consideration of the jurisdictional issue. See Res-Care, 280 NLRB 670 (1986), and Long Stretch Youth Home, 280 NLRB 678 (1986). 1 Because no exceptions have been taken to the judge's finding that jurisdiction is appropriately exercised over the Respondent, we need not pass on the discretionary jurisdictional issue in this case. Springfield Tran- sit Management, 281 NLRB 72 (1986) Member Stephens finds, on the present record, that statutory jurisdic- tion exists and, in view of the Respondent's failure to raise any jurisdic- tional issue, he finds it unnecessary to remand this case. See his opinion concurring and dissenting in Res-Care, 280 NLRB 670 (1986). The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Csr. 1951). We have carefully examined the record and find no basis for reversing the findings. Richard V Stratton, Esq., for the General Counsel. Bruce Bischof Esq., of Sunriver, Oregon, for the Re- spondent. Monica Smith, Esq. (Kulongoski, Heid, Durham Bc Drum- monds), of Portland, Oregon, for the Charging Party. DECISION 887 STATEMENT OF THE CASE WILLIAM„ L. SCHMIDT, Administrative Law Judge. This case was heard by me on August 9, 1983, at Port- land, Oregon. The charge was filed on January 28, 1983, by the Molalla Union High School Association of Classi- fied Employees (Association), affiliated with Oregon As- sociation of Classified Employees (OACE), Oregon Edu- cation Association (OEA).' It alleged that Chancellor Transportation Company, Inc. (Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act (Act) by refusing to hire Phyllis Maloy and Sally Schrager in order to discourage membership in a labor organization. Pursuant to that charge, the Acting Re- gional Director for Region 19 of the National Labor Re- lations Board (NLRB or Board) issued a`: complaint and notice of hearing on behalf of the General Counsel of the Board on March' 14, 1983, to which it was alleged that the Respondent had discriminated' against Maloy and Schrager by failing and refusing to employ them about August 16, 1982, because they had joined a labor organi- zation. Respondent filed a timely answer dated March 22, 1983, denying that it had engaged in the alleged unfair labor practices. On the entire record in the case, including my obser- vation of the demeanor of the witnesses and on consider- ation of the briefs filed by all parties, I make the follow- ing FINDINGS OF FACT 1. JURISDICTION Respondent, an Oregon corporation, maintains an office and place of business in Molalla, Oregon. It pro- vides bus transportation services to various Oregon school districts. During the 12 months preceding the is- suance of the complaint, Respondent derived gross reve- nues in excess of $250,000 from its business operations for certain public school, districts in Oregon, including Molalla High School District, Molalla Grade School District, and Maple Grove School District. During the same period, Respondent purchased goods valued in excess of $25,000 from suppliers who in turn purchased those goods directly from other suppliers lo- cated outside the State of Oregon. Based on the foregoing, I find that Respondent is an employer within the meaning of Section 2(2) of the Act engaged in commerce or an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. I further find that it would effectuate the purposes of the Act for the Board to exercise its jurisdiction in this dis- pute. H. THE LABOR ORGANIZATION INVOLVED It is admitted that the Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. 1 The organizations are referred to separately by the acronyms speci- fied. Collectively, the affiliated organizations are called the Union 282 NLRB No. 115 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES During the lunch McKay sought to impress on the two drivers the seriousness of the situation based on informa- tion he obtained in meetings with school administrators. McKay suggested that they attempt to formulate some economic concessions with the other drivers in an effort to head off the proposed contracting of the bus service. McKay, who wanted to retain his anonymity, suggested some areas in which the drivers could make concessions and also suggested that they meet with Business Manager Leupp who was familiar with the details of the budget considerations that served as the basis for the school board's contracting proposal. McKay also warned the drivers to keep their discussion with Leupp confidential because the school superintendent apparently did not want the school administrators making unauthorized dis- closures to members of the Association while negotia- tions were underway with the Association. Approximately a week and a half after Harper and Schrager lunched with McKay, a meeting was held with the drivers in the dispatch office. At this meeting, the drivers agreed on certain concessions. Thereafter, it ap- pears that Harper, Maloy, and Schrager met with Leupp on at least two occasions and discussed the drivers' con- cessions. Schrager testified that Maloy did most of the talking in the meetings with Leupp because she was the Association member who was the most familar with fig- ures. Leupp informed the three that the school board would not even consider their proposal unless each of the drivers and the mechanic agreed to the proposed concessions in writing. Even that impediment appears to have been overcome, but the drivers' concessions did not have its desired effect. Indeed, it appears that by mid- April many of the drivers had concluded that their offer of economic concessions would not be' considered at all unless the Association's full membership was willing to go along. It also appears that the school superintendent became aware of Leupp's meetings with the drivers and officially reprimanded him for that conduct. In the midst of this turmoil, Schrager's brother, a teacher in the ele- mentary school, suggested that she speak with George Hludzik, the area coordinator for OACE. Schrager made an appointment to meet with Hludzik on April 19. She was accompanied to the meeting by Harper and Maloy. In the course of the meeting, Hludzik told the three drivers that he did not intend to actively seek to represent them because it appeared that they had too many problems. However, Hludzik said he would make himself available for advice. Schrager was im- pressed with Hludzik's candor. On April 22, there was a general membership meeting of the Association. At that meeting, there was extensive discussion of the ongoing negotiations between the school district and the Association. There is some evi- dence of pervasive discontent among many of the classi- fied employees. After the negotiations were discussed, Schrager, who was the drivers' representative for the Association, reported on the drivers' proposals and their feeling that the school board was essentially ignoring their overtures to induce the school board to drop the proposed contracting out of the bus service. Schrager also reported on her meeting with Hludzik and expressed A. The Pleadings The complaint's substantive allegation is that Respond- ent violated Section 8(a)(1) and (3) of the Act by refus- ing to hire Maloy and Schrager as school busdrivers about August 16, 1982. Apart from that allegation, the complaint alleges no other unlawful conduct on- Re- spondent's part. The answer denies that Respondent committed the alleged unfair labor practices. Respondent raises no affirmative defenses. B. The Evidence For a number of years Maloy and Schrager were em- ployed as school busdrivers by the Molalla Union High School (school district) in Molalla, Oregon. Their imme- diate supervisor was dispatcher/driver, Bruce McKay. In the 4 years preceding 1982, the drivers were represented by the Association, which began as an unaffiliated orga- nization. In addition to the drivers, the Association rep- resented the school district's clerical employees, mainte- nan ce staff, and cafeteria employees. Each year Associa- tion officials negotiated with the school board concern- ing wage scales, but no signed agreement was ever con- cluded or needed. McKay was the Association's presi- dent for the 1979 and 1980 academic years. Thereafter, McKay ceased his direct participation in the Association affairs because of his supervisorial position. McKay did not regard the Association as a union. The school district employed 12 drivers, McKay, and a mechanic in its bus operations during the 1981-1982 school year. Maloy, who had driven a schoolbus for the district for 14 years, was the second most senior driver; Schrager had worked as a full-time driver for 6 years.2 Employees reported for work at the bus garage, which was located in a separate building from the school and the administrative offices. In addition to the garage space, there was a dispatch office in the bus building where McKay and the mechanic kept their desks. The dispatch office was, also in McKay's words, the "family center" for the drivers where they lounged and had coffee after their daily rounds. Periodically, rumors surfaced to the effect that the school board had proposals under consideration to con- tract the bus service to a private company. Such specula- tion surfaced again in January or February 1982. At this time it was evident that the proposal was more than rumor because a bid specification appeared on the table in the dispatch office: Naturally, it attracted a lot of at- tention. Schrager noted that the specification made no mention of the busdrivers. This fact caused the drivers to be concerned for their job security. In March, McKay had occasion to have lunch with Schrager and Margaret Harper, another driver who was the secretary-treasurer of the Association at that time. 2 Schrager originally began her employment with the school district as a driver training instructor in November 1974 In 1975 she began driving a schoolbus part-time, and since 1976 she had a regular route. In 1979 or 1980 Schrager attended community college to obtain a certification as a behind-the-wheel trainer for school busdrivers McKay and Schrager were the only drivers so certified CHANCELLOR TRANSPORTATION CO. 889 the view that the situation had gotten too complex for the employees to handle themselves. Maloy also ad- dressed the group and after her talk a nondriver ap- pealed to the group to consider affiliating with OACE because of the drivers' predicament. Finally, Schrager made a motion that the Association affiliate with OACE and the motion passed . Obviously steps were taken there- after to formalize the affiliation. The turn of events did not please McKay. In his view, the affiliation action was tantamount to joining a union and McKay was admittedly antiunion. He learned of the affiliation action the morning after the April 22 meeting. Schrager gave the most detailed description of the scene when McKay came into the dispatch office the next morning- [W]e were sitting in the room and drinking our coffee, and we were just-we were happy that we had affiliated. And, Bruce came storming through the door, and he looked right at me-he came right through the door, and he said, "Well, you did it nowt They'll for sure award a contract now that you've joined the union." And he was just fuming. I've seen Bruce mad, but I've never seen him that mad. Q. What indicated to you that he was that angry? A. Oh, he glared at Phyllis and I and Margaret, and he just kind of threw his hands up. And he says, "Well you've done it now. I'm not going to talk to you to try to help you work this situation out." He just completely had had it. He was so mad. He looked at us, and he said that' we were dis- loyal, that we had joined the union, and that they would for sure award a contract. And, he says, "You guys think you're so smart"--you know, by joining the union. McKay acknowledged that he told the group that morn- ing that they had really "screwed up" and that the school board would now definitely contract out the bus service. McKay conceded" that he probably also stated, in effect, that they were breaking up "the family" by voting to join the Union. According to McKay, he was aware as a result of his dealings with the school board when he was president of the Association that that body preferred not to deal with a union and professional negotiators. He said that it was his view that the school board would "just as soon get 'rid of the bussing and not have to worry about it" if the Association affiliated with OACE. For this reason, McKay was certain that the Associa- tion's affiliation with OACE would cost him and the drivers their jobs and that the employees "were fully aware of [his] feelings on the matter." McKay asserted, however, that to his knowledge the motion to affiliate at the Association meeting the previous evening was some- thing that Harper and Schrager, brought up "out of the clear blue sky." McKay claimed, that he was unaware of Maloy's role at the meeting the previous evening. How- ever, it does appear that in the ensuing weeks Maloy and McKay engaged in a hostile debate over whether the drivers' rights to unempl©yment compensation if they re- fused to work at the reduced pay rates, which it was ru- mored one of the contractors (Dorsey) was going to offer the drivers if it was successful in obtaining the bus service contract. According to Schrager, prior to the affiliation vote nearly all of the drivers "loved" McKay and were per- sonal friends of McKay's. McKay returned the affection in several different ways. However, it is undisputed that after the Association voted to affiliate with OACE, McKay's friendship with the drivers cooled consider- ably. In McKay's own words, his relationship with the drivers after the affiliation vote suffered from a "hostility gap." McKay ceased having breakfast and lunch with the drivers as he had done over the years. McKay blamed Schrager for the affiliation vote and referred to Schrager as a troublemaker. In addition, McKay often made snide remarks about "the union," meaning OACE. In June, McKay prepared the annual written evaluations for the drivers. For the first time in the 4 years he had been preparing the evaluations, McKay, in effect, rated Schrager as a disloyal employee. In view of subsequent events, McKay's evaluation of Maloy is also noteworthy as, in McKay's view at that time, Maloy merited the highest rating for the quality of her work and he specifi- cally noted that Maloy was a "very dependable and seri- ous worker." At the hearing, McKay curtly dismissed the written evaluations by saying that they really did not mean very much. On August 12, 1982, the school board awarded a con- tract for the bus service to Respondent. At the same time, McKay and the drivers were laid off. A, few days before, McKay was approached by Randy Chancellor, one of Respondent's officials, who offered McKay em- ployment as the supervisor for all Respondent's school busdrivers.3 McKay accepted the offer. When the high school contract was awarded to Respondent, Randy Chancellor explained Respondent's proposed routing system to McKay and told McKay to hire eight drivers from among the exdrivers at the high school.4 Chancel- lor left it up to McKay about which drivers would be hired, but he outlined certain criteria he, wanted McKay to follow. According to McKay, Chancellor did not want to employ drivers who abused ' the buses, drivers who did not properly clean the buses, drivers who were unable to control the riders or drivers who had difficulty getting along with the other drivers. McKay approached his staffing assignment by deciding on the drivers he would not hire. McKay was not authorized to replace any of Respondent's grade school drivers with ex-high- school drivers. McKay's elimination process was simplified slightly because one of the 12 high school drivers, Heather Purvis, an ex-high-school substitute driver, declined McKay's offer saying that she had already obtained other employment. In addition, McKay said that another driver, Tony Pirkl, who was the most senior among the ex-high-school drivers, knew that McKay would never hire him to drive a schoolbus and that he did not con- 3 Respondent has provided the bus service at the grade school for a number of years. 4 The need for fewer drivers appears to have resulted from combining some high school and grade school routes 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tract Pirkl even to ask if he desired to work for Re- spondent. With respect to the remaining 10 drivers, McKay claimed that he contacted each of them after the con- tract letting was announced in a effort to poll them con- cerning whether they wanted to work for Respondent. Although that may well have been McKay's plan, it does not appear that it worked out so well in practice. Thus, on the evening of August 12 after the school board awarded the contract to Respondent, Charlene Waltner expressed an interest in a job with Respondent so McKay told her at that time that she had a job and that he would contact her further on the following Monday. The following day, McKay telephoned Harper ostensibly to "poll" her concerning her desire for employment with Respondent. After Harper expressed a desire to work, McKay told Harper that he would contact her on Monday about a job. Harper then told McKay she planned to be `away from home most of the following Monday and asked what to do if she missed his call. McKay said that as Harper was the best driver at the high school, he told Harper at that time that she had a job and that she should report. for a drivers' meeting the following Tuesday. That weekend, Harper, Schrager, and Maloy contacted several other drivers who reported to them that they had been hired outright by McKay on Friday, August 13. Among those hired by Respondent was one ex-high-school driver who only had 6-months experience as a substitute driver, another who could not drive a manual transmission and who had difficulty back- ing up, and a third person who was frequently unavail- able for work. With respect to Schrager and Maloy, it is undisputed that McKay telephoned them on August 13 concerning their desire to work for Respondent but that he deferred committing himself to hiring them. Schrager said that after she told McKay that she wanted to work for Re- spondent, McKay told her that he would let her know if she had a job on Monday, August 16. The situation with Maloy is more complicated. Maloy recalled that McKay telephoned her on August 13 about the so-called poll. When McKay asked if she wanted to work for Respond- ent, Maloy asked what Respondent intended to pay the drivers. McKay described Respondent's proposed com- pensation plan to Maloy and she pointed out to him it was somewhat lower than that which had been budgeted by the high school. Maloy asked if it was necessary for her to make up her mind at that time, and McKay ex- plained that it was not. Maloy told McKay that she would telephone him the following Monday. On August 16, McKay telephoned Schrager and told her "to make a long story short," that she did not have a job with Respondent. McKay asked if she had any ques- tions and after Schrager stated that she did not, the con- versation ended. Schrager said the news upset her; she is the breadwinner in her family. McKay also said that Schrager seemed upset. Maloy said she telephoned McKay on August 16 and continued to express doubt about what she should do as she was troubled by Respondent's significantly lower wage scale. Finally, Maloy said that McKay told her that he was not going to hire her anyway and continued by saying that he had "to make this list up to the high school [as] to who I'm not hiring. Is it alright if I put you on this list?" Maloy told McKay that it was and hung up. McKay claimed that Maloy told him on Friday, August 13, that she desired to work for Respondent but that she called back on Monday and told him otherwise. McKay claimed that Maloy told him that Monday that she did not want to work for Respondent because the pay reduction was too great and Respondent provided no fringe benefits. McKay said he ended the conversa- tion with Maloy by telling her that he did not intend to hire her anyway. McKay asserted that he had decided not to hire Maloy because she (1) drove too fast, (2) was unable to control the riders, and (3) made unauthorized stops at stores at the request of the riders. McKay acknowledged that all the ex-high-school drivers drove faster than Respondent preferred. Maloy's yearly evaluations reflect none of the deficiencies mentioned by McKay. Approximately a week and a half after McKay advised Schrager that she would not be employed by Respond- ent, Schrager telephoned McKay seeking an explanation for his failure to hire her. Schrager's husband, Chris, lis- tened on an extension line. McKay first was reluctant to discuss the matter with the Schragers, but, finally told them that there were three reasons he did not hire Sally Schrager. The reasons given by McKay were: (1) she did not properly clean her bus, (2) her union activity, and (3) her school board position. After further discussion, McKay, conceded to the Schragers that neither her past habit about cleaning, the -bus she drove nor her school board position were major obstacles to her employment, but that her union activity was the "main reason" Schrager was not hired. McKay explained that in his view Schrager was not a loyal employee because she had 11 joined the union and that he and Rose Chancellor didn't want [Schrager] coming in and organizing [Chancellor's] drivers; that they didn't need those kind [sic] of hassles."5 (Emphasis added.) According to Sally Schrager, she pointedly asked McKay, "You mean if I hadn't gotten involved with the union and stood up for what I felt was right and fought for my rights, I would have a job?" Schrager said that McKay's reply was "That's right." Schrager said McKay accused her of leading the rest of the drivers "by the nose" and she was not, loyal because she joined the Union. Chris Schrager corroborated the bulk of his wife's testimony concerning this conversation. Although McKay acknowledged that he spoke to the Schragers in late August concerning his reasons for not hiring Sally Schrager, he denied that he ever told them that she was not hired because of her union activity. In- stead, McKay claims that he decided not to hire Schrager because she had a problem keeping her bus clean and because she irritated the other drivers. Ac- cording, to McKay, he was "constantly stepping in be- tween [Schrager] and . . . other employees" and that 5 Rose Chancellor is another of Respondent's officials She is also an elected member of'the school district's board and it is reasonable to infer that she was well aware of Schrager's role in the Association's affiliation with OACE CHANCELLOR TRANSPORTATION CO. 891 several drivers had threatened to quit if McKay-did not get Schrager "off [their] back." McKay did not identify any particular driver as being the individual who made such a threat nor was McKay's assertion in this regard otherwise corroborated. However, McKay said that he would have recommended that Schrager be hired if Re- spondent had needed one additional driver but he failed to explain why he did not hire Schrager during the school year when the opportunity arose. Instead, it ap- pears that Respondent hired three substitute drivers who had no prior experience with either Respondent or the high school and did not attempt to employ either Maloy or Schrager when one of the full-time drivers quit during the school year. Finally, McKay testified that if he had had to choose between Schrager and another driver with equal qualifications he would have considered Schrager's union activities in reaching his decision, but, as a situa- tion of equipoise was not presented, he did not consider Schrager's union activities in deciding not to hire her as a driver for Respondent. C. Additional Findings and Conclusions An employer violates Section 8(a)(3) of the Act by discriminating with respect to an employee's hire or tenure in order to encourage or discourage membership in a labor organization. Great Chinese American Sewing Co. v. NLRB, 578 F.2d 251 (9th Cir. 1978); NLRB v. El Dorado Club, 557 F.2d 692, (9th Cir. 1977); NLRB v. Coast Delivery Services, 437 F.2d 264 (9th Cir. 1971). Absent unusual circumstances not relevant here, the cru- cial determination that must be made in cases involving discrimination within the meaning of Section 8(a)(3) of the Act is a factual one, namely, what is the actual motive for the employer's action that the General Coun- sel- alleges to be discriminatory. Panchita's v. NLRB, 581 F.2d 204 (9th Cir. 1978); Santa Fe Drilling Co. v. NLRB, 416 F.2d 725 (9th Cir. 1969). Direct evidence of an an- tiunion motive is rare- and, for that reason, reliance on circumstantial evidence and the reasonable inferences that may be drawn therefrom is not only permissible, most often it is necessary. Panchita's v. NLRB, supra; NLRB v. V & V Castings, 587 F.2d 1005 (9th Cir. 1978). It is seldom that an employer will supply direct evidence concerning its state of mind in cases of this nature, which is not also highly self-serving. Golden Day Schools v. NLRB, 644 'F.2d 834 at 838 (9th Cir. 1981); Shattuck Denn Mining Corp. Y. NLRB, 362 F.2d 466 (9th Cir. 1966). Schrager's case is one of those rare instances in which there is direct evidence of an unlawful motive if the ver- sion of the telephone conversation recounted by Schrager and her husband is believed. While testifying, both of the'Schragers impressed me as sincere and truth, ful witnesses. Supporting their version of this critical telephone conversation` with McKay is other undisputed evidence to the effect that McKay was vocally antiun- ion, that he believed Schrager was primarily responsible for the fact that the Association affiliated with OACE, that he was openly hostile toward the drivers after the affiliation, McKay's own admission in a hypothetical sense that he would have discriminated against Schrager if all other factors were equal, and the fact that McKay hired others with considerably less experience than Schrager. Accordingly, based on the convincing demean- or of the Schragers, while testifying,- and other evidence that enhances the probability that their version of their conversation with McKay is truthful, I have concluded that the Schragers' version of the telephone conversation with McKay in late August is credible. As McKay ad- mitted to them that the primary reason he refused to hire Schrager as a driver for Respondent was because her ac- tivities in connection with the Association's affiliation with OACE caused Rose Chancellor and himself to fear that she would attempt to organize Respondent's drivers, I find that Respondent violated Section 8(a)(1) and (3) of the Act by refusing to employ Sally Schrager. With respect to Phyllis Maloy, it is also concluded that the General Counsel has met the burden of proving by a preponderance of the evidence that she was not hired because of conduct protected by the Act. If, as was concluded above, Schrager was perceived as a threat from Respondent's standpoint of maintaining a nonunion work force, Maloy had to have been perceived as an even greater threat. In testifying at the hearing, Maloy presented a stoic demeanor and an appearance as mature as McKay's. Her leading role in the discussions with Leupp, her open criticism of the likelihood that the drivers would be economically injured by the school dis- trict's use of a private' subcontractor, her investigation of the drivers' right to unemployment compensation during the 1982 summer period, her hostile debate with McKay about this subject, and her consistent and open support for the Union at various steps along the way all indicate that Maloy was a natural leadership force within the drivers' group. Although in its brief, Respondent heavily emphasized the fact that it hired Harper who was the secretary-treasurer of the Association and attempts to claim that Harper was a leading activist in the events in- volved here, the record does not indicate that Harper was nearly as outspoken and critical of the events that were taking place as was Maloy. The fact that Maloy was openly hostile to the effects of the subcontracting on the terms and conditions of employment of the high school drivers provides a strong motive for Respond- ent-which was concerned about the potential of its own work force becoming unionized-to exclude Maloy from consideration. A credibility, resolution is required in connection with two key elements of the case involving Maloy. First, McKay claims that he was not aware that Maloy was active' in support of the Union. I am not convinced that McKay's testimony in the regard was at all truthful and the fact that McKay sought to coverup his knowledge of Maloy's role only lends support for the conclusion that her activities were a key factor in her not being selected for employment by Respondent. Clearly McKay was not an uninterested bystander regarding to the events that were going on in the spring. Behind the scenes, McKay was very active in these events. It is simply unbelievable that once he promoted the meetings with Leupp that McKay did not closely follow what was going on. In ad- dition, McKay learned quickly of the affiliation action and it was clearly not by chance that he directed his hos- 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tile remarks on the morning of April 23 toward the area where Harper, Maloy, and Schrager were seated. Hence, it is concluded that McKay was well aware of Maloy's leading role with respect to the affiliation, and her lead- ing role as a critic of the subcontracting action. Secondly, McKay claims in effect that Maloy called him on August 16 and turned down employment with Respondent and that he only informed her offhandedly at the end of the conversation that he was not going to select her in any event. Maloy's testimony is that al- though she was reticent about taking what she perceived to be a significant cut in her compensation McKay re- fused her employment before she had completed the process of making up her mind. Entirely aside from the fact that Maloy impressed me as a vastly more, credible witness while testifying, I find it highly improbable that McKay would have gone out of his way to antagonize Maloy by telling her that he was not going to hire her after she had refused employment., Moreover, in several other respects, it has been concluded that McKay was not a reliable witness. Accordingly, I have concluded that Maloy's version of the August 16 telephone conver- sation between McKay and herself is the credible ver- sion. I further find that Maloy responded affirmatively to McKay's rhetorical question whether it was all right for him to include her on his list of ex-high-school drivers who would not be hired only after he had already in- formed her that she would not be hired. Having reached the foregoing conclusions with respect to Maloy, I have carefully weighed McKay's stated rea- sons for not employing a driver with the degree of expe- rience that Maloy had even as the year progressed and there was an additional need for drivers. In each in- stance, Maloy's shortcomings as described by McKay are nebulous, uncorroborated, and unsupported by any recent experience. Maloy candidly admitted that she stopped at a store on one occasion over 4 years ago, but she credibly testified that she had not done so since she was reproached for that conduct at that time. There is no evidence that even at that time Maloy's action was regarded as a significant blight on her work record. On the contrary, McKay's handwritten remark on Maloy's last appraisal that she was "very dependable and [a] seri- ous worker" is more indicative of his true judgment of her capability.s As he chose to employ drivers with con- siderably less experience and considerably greater driv- ing deficiencies than any attributed to Maloy, it is rea- sonable to infer from the circumstances present here that McKay had another unlawful motive for his refusal to consider Maloy for employment. The only such motive suggested by this record is Maloy's vocal support of the Union and her outspoken opposition to the effects of the subcontracting of the bus transportation service by the school district.? Accordingly, 'I find that Maloy's support 6 Although McKay asserted that the handwritten evaluations did not actually mean very much, Respondent sought to rely on them to make the point that Harper was the best driver in the high school group. I find McKay's testimony in this regard to be one further example of his at- tempted evasiveness as a witness 7 When, as here, other evidence shows that Respondent was fearful of the unionization of its work force , Maloy's outspoken attitude concerning a significant reduction in the drivers' compensation package would pose of the Union and her opposition to the effects of the sub- contracting were the true reasons McKay refused to offer Maloy employment. By refusing to offer Maloy em- ployment for these reasons, Respondent violated Section 8(a)(1) and (3) of the Act.8 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent set forth in section III, above, occurring' in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and that it take cer- tain affirmative action necessary to effectuate the pur- poses and policies of the Act. With respect thereto, it is recommended that Respondent be required to offer Phyl- lis Maloy and Sally Schrager immediate employment as full-time drivers, dismissing if necessary any individual hired since the employment of'the ex-high-school drivers on August 16, 1982, in order to make positions available to them. It is further recommended that Respondent make Maloy and Schrager whole for the losses they suf- fered as a result of the discrimination against them and that the backpay due to them be computed in the manner prescribed by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon as prescribed by the Board in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). Finally, it is recommended that Respondent be ordered to post the notice to employees attached as an appendix for 60 consecutive days in order that employees may be apprised of their rights under the Act and Respondent's obligation to remedy its past unfair labor practices. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act engaged in commerce or an in- dustry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By refusing to offer Phyllis Maloy and Sally Schrager employment about August 16, 1982 , because of an obvious threat of unrest and discontent among Respondent's drivers, which could easily lead to efforts to seek union representation 8 Although such activities may not have been protected by the Act when engaged in because of Maloy's lack of status as an employee under the Act, see e g_, Campbell-Harris Electrical, 263 NLRB 1143 ( 1982), the conclusion that Respondent violated the Act is grounded on the finding that Respondent , by refusing to employ Schrager and Maloy, was seeking to diminish the possibility that its own work force would be unionized Such conduct clearly discourages union membership among persons who are employees under the Act CHANCELLOR TRANSPORTATION CO. 893 their activities on behalf of the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 ORDER The Respondent, Chancellor Transportation Company, Inc., Molalla, Oregon, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to employ an employee for engaging in union activities or otherwise exercising rights guaranteed by Section 7 of the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees- in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Phyllis Malby and Sally Schrager employ- ment and make them whole in the manner specified above in the remedy section of this decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all 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 and the propriety of any offers of employment made to Phyllis Maloy and Sally Schranger in order to comply with paragraph 2, subparagraph (a), of this Order. (c) Post at its Molalla, Oregon place of business, copies of the attached notice marked "Appendix."10 Copies of the notice, on forms provided by the Regional Director for - Region 19, after being signed by the Re- spondent'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 customarily posted. Reasonable steps shall be taken by the Respond- ent-to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National-Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To 'choose not to engage in any of these protect- ed concerted activities. WE WILL NOT, refuse to employ any employee for en- gaging in union activities or otherwise exercising any of the rights guaranteed by Section 7 of the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE, WILL offer Phyllis Maloy and Sally Schrager im- mediate employment as full-time drivers and make them whole for any loss of earnings incurred by our refusal to employ them on August 16, 1982, with interest. CHANCELLOR TRANSPORTATION COMPANY, INC. 9 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 10 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 "