Freightway Corp. And Kaplan Enterprises, Inc.

FREIGHTWAY CORP 531 Freightway Corporation and Kaplan Enterprises, Inc. and Robert C. Leidigh. Cases 8-CA-20032 and 8-CA-20455 August 23, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On September 23, 1988, Administrative Law Judge Lowell Goerlich issued the attached deci- sion The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed cross- exceptions and a supporting brief In addition, the Respondent and the General Counsel filed answer- ing briefs The National Labor Relations Board has delegat- ed its authonty 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 as modified and to adopt the recom- mended Order as modified 1 1 The Respondent contends that the charge filed in Case 16-CA-20032 on April 16, 1987, which al- leges, inter alia, that the Respondent caused other employers to refuse to hire Charging Party Lei- digh, must be dismissed because the Charging Party did not provide the Respondent with a signed copy of the charge within the 10(b) limita- tions period Specifically, the Respondent contends that even though the charge filed with the Board was signed by the Charging Party, the unsigned copy served on the Respondent did not constitute service sufficient to afford jurisdiction to the Board under Section 10(b) The judge found that the service of an unsigned copy of the charge was sufficient because Section 10(b) does not require either that the ongmal signed charge or a signed copy be served on the party charged In addition, the judge found that be- cause Board agents assumed the function of serving the charge, it could be presumed that they fol- lowed the Board's Rules in this regard The judge also noted that included with the copy of the charge served was a letter from the Region, dated April 16, 1987, which informed the Respondent that a charge had been filed and stated that "a copy of the charge is herewith served upon you" The judge concluded that, under these circum- stances, the Respondent had no reason to believe that the copy of the charge which it received was 1 We shall modify the recommended Order to use the Board's standard make-whole language and to add other customary affirmative language other than a true copy within the Meaning of Sec- tion 10(b) While we agree with the judge's conclusion that the charge m Case 8-CA-20032 should not be dis- missed, we rely on the following rationale We note first that, with respect to service of the charge on a respondent, the jurisdictional 6-month limita- tion as set forth in Section 10(b) of the Act re- quires only that timely "service of a copy thereof [be made] upon the person against whom such charge is made" With respect to the purpose of such a provision the Board has held that "service of the charge conjunctively with the filing thereof clearly discharges a vital requirement of any statute of limitation, namely the establishment of a tolling point for the operation of the prescribed statutory period "2 The Board requirements with respect to the signing of charges are not contained m Section 10(b) but in Section 102 11 of the Board's Rules and Regulations In this regard, the Board has found that the purpose of the Section 102 11 re- quirement that a charge be signed is that of safeguarding the Board's processes against the abuse which would mhere in an ir- responsible exercise by members of the public of the charging power to insure that [the] power be soberly exercised, a person filing a charge, is required to declare, under the sanc- tions [of] the Criminal Code for willfully false statements, that he has read the declaration and its contents are true Ladies Garment Workers (Saturn & Sedan), 136 NLRB 524, 527, 528 (1962) In the present case, while the copy of the charge served on the Re- spondent was not signed, the ongmal charge filed with the Region was signed by the Charging Party In light of all the circumstances, we find that the purpose of Section 102 11 of the Board's Rules has been satisfied and that the service of the charge in Case 16-CA-20032 was sufficient under Section 10(b) to toll the statutory period and to invoke Board jurisdiction 3 2 The second consolidated amended complaint, dated February 25, 1988, alleged that the Respond- ent violated Section 8(a)(1), (3), and (4) of the Act by causing or attempting to cause other employers not to hire Leidigh and by refusing to rehire him because he engaged m protected concerted activi- ties and because he filed unfair labor practice a Cathey Lumber Co. 86 NLRB 157, 163 (1949), enfd 185 F 2d 1021 (5th Cif 1951), vacated on other grounds 189 F 2d 428 (5th Or 1951) See also Koppers Co. 163 NLRB 517 (1967) 3 We note that the Respondent does not contend that It was in fact prejudiced by the Charging Party's failure to timely serve it with a signed copy of the charge 299 NLRB No 73 532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD charges with the Board The judge made no con- clusion, however, with respect to the allegation that the Respondent violated Section 8(a)(3) and the General Counsel excepts to the judge's failure to conclude that the Respondent committed such a violation of the Act The General Counsel contends that the evidence of the Respondent's union ammus is twofold First, the General Counsel asserts that in 1984 Leidigh was discharged by the Respondent because he tned to enforce a collective-bargaining agreement In this regard the record reveals that Leidigh was dis- charged in 1984 or 1985 when he refused to under- go a physical The General Counsel does not con- tend that that discharge was alleged or found to be unlawful and Leidigh's own testimony establishes only that certain contractual provisions were "in part" the reason he objected to taking the physical Moreover, Leidigh did not testify that he informed the Respondent of his contractual arguments at the time he was discharged Secondly, the General Counsel relies on the "procedure and outline," that the Respondent prepared for the discharge hearing pursuant to the grievance that Leidigh filed with the Union concerning the above discharge In that document presenting the Respondent's case to the Union, the Respondent noted that Leidigh had filed numerous complaints with OSHA, the Board, and "the Teamsters," which had been found to be without merit and had resulted in legal expense and much lost time to the Respondent The Respond- ent's president, Kaplan, testified that he felt that it was "worth mentioning" the number of previous complaints that had been found groundless in sup- port of the Respondent's contention that the pend- ing grievance similarly be found lacking in merit In our view, the General Counsel has failed to es- tablish by a preponderance of the evidence either that the Respondent harbored union animus or that the alleged animus had a nexus with the Respond- ent's later refusal to rehire Leidigh Accordingly, we dismiss the portion of the complaint pertaimng to the allegation of a violation of Section 8(a)(3) and (1) 3 In his decision, the judge found that the Re- spondent violated Section 8(a)(4) and (1) of the Act Thus, the judge found that the Respondent's representations to Midwest Coast Transport that the Respondent would not rehire Leidigh because, inter aim, he filed charges with the Board had an unlawful tendency to mduce Midwest to avoid hiring Leidigh and to impede and interfere with Leidigh's employment opportunities In addition, the judge found that the Respondent unlawfully re- fused to consider Leidigh for rehire on or after No- vember 18, 1986, the date of Leidigh's request for employment, because Leidigh filed charges with the Board In concluding that the Respondent vio- lated the Act by refusing to rehire Leidigh, the judge found that, while the Respondent claimed it had other lawful reasons for refusing to rehire Lei- digh, these reasons were immaterial if the Respond- ent relied even in part on an unlawful reason We agree with the judge's conclusion that the Re- spondent violated Section 8(a)(4) and (1) of the Act by its refusal to rehire Leidigh because he filed charges with the Board, but we do so under the analysis set forth in Wright Line, 251 NLRB 1083 (1980) 4 In this regard, we conclude that the Gen- eral Counsel has established a prima facie case that in refusing to rehire Leidigh, the Respondent was motivated at least in part by unlawful reasons and that the Respondent has not met its burden of dem- onstrating that it would have refused to rehire Lei- digh absent his filing of charges with the Board With regard to the General Counsel's prima facie case, we note that the General Counsel established that on October 10, 1986, Leidigh filed an unfair labor practice charge over his voluntary quit status The General Counsel also introduced into evidence at the hearing a copy of the reference form on Leidigh provided by the Respondent to Midwest Coast Transport On the reference form dated December 4, 1986, the Respondent stated that Leidigh had a "poor attitude," had three pre- ventable accidents, and that it would not rehire Leidigh because it "cannot afford the legal expense to defend the charges filed with OSHA, National Labor Relations Board and other government agencies All of the past charges filed were deter- mined to be unfounded" In addition, at the hear- mg, in response to a question by the General Coun- sel, the Respondent's vice president, Purse!, testi- fied, inter aim that for the reasons stated on the Midwest Coast Transport reference form, he did not want to rehire Leidigh Based on the Respond- ent's reference submitted to Midwest and the record testimony, we find that the General Counsel established that the filing of Board charges was a motivating factor m the Respondent's decision not to rehire Leidigh We further find that the Respondent has failed to demonstrate that it would not have rehired Leidigh in the absence of the charges he filed with the Board In this regard, we note that the Respondent attempted to establish that it would not rehire Lei- digh because Leidigh had a poor attitude, had two or three accidents during his employment with the ' PIE Nationwide, 295 NLRB 382 (1989) (Board applies Wright Line to alleged 8(aX4) as well as 8(aX3) violations) See also H B Zachry Co. 289 NLRB 838 (1988) (Wright Line applied in context of 8(a)(4) allega- tion) FREIGHTWAY CORP 533 Respondent, and failed to submit a proper applica- tion form With respect to Leidigh's poor attitude, although Pursel testified that LeiclighN poor atti- tude was evidenced by his bad relationships with various customers, Pursel did not provide the names of any of these customers nor did he de- scribe any allegedly poor relationships or specific incidents In addition, while Pursel testified that Leidigh's poor attitude was also evidenced by his habitual sickness, Pursel could not explain why he did not rely on Leidigh's sickness on the Midwest Coast Transport reference form when explaining why he would not rehire Leidigh Furthermore, and significantly, Pursel testified that he considered it a poor attitude toward the Company for an em- ployee to file charges found to be without ment With respect to Leidigh's accidents and his fail- ure to submit a proper application form, Pursel his testimony could remember very little about the two or three "preventable" accidents Leidigh had during his 10 years' employment with the Respond- ent nor is it clear from the testimony that any of the accidents were attributable to any fault on Lei- digh's part And, although Leidigh did fail to send the Respondent an application on the form supplied by the Respondent, Pursel's reliance on this matter is unpersuasive Thus, Pursel stated that the appli- cation form, submitted by Leidigh contained no in- formation. concerning bonding Pursel subsequently admitted, however, while the Respondent does not actually bond its employees, it likes to know they are bondable since they handle credit carth and money, and he assumed Leidigh had been bondable when. he was previously employed by the Re- spondent Similarly; Pursel stated that a new regu- lation required an applicant to provide his employ- ment history for the previous 10 years but that Lei- digh's application provided only a 3-year work his- tory In view of the fact that Leidigh had been em- ployed during the previous 10 years by the Re- spondent, however, we fmd this statement uncon- vincing Finally, and most significantly, Pursel con- ceded that regardless of whether Leidigh had. sub- mitted' a proper application form, he would not have rehired him In view of the above, we find the Respondent has not demonstrated that it would have refused to rehire Leidigh absent his filing charges with. the Board Accordingly; we conclude that the Re- spondent has failed to meet its burden under Wright Line and that it therefore has violated Section 8(a)(4) and (r) of the Act 5 5 In his recommended remedy, the judge Inadvertently referred to the date of commencement of backpay as the date of Le gligh's "unlawful dis- charge" rather than the date of the Respondent's refusal to rehire Lei- digh We correct that error ORDER The National Labor Relations Board adopts the recommended Order of the judge as modified below and orders that the Respondent, Freightway Corporation and Kaplan Enterprises, Inc , Toledo, Ohio, its officers, agents, successors, and assigns, shall take the action set forth nt the Order as moth- fled 1 Substitute the following for paragraph 2(a) "(a) Offer Robert C Leidigh immediate employ- ment in the job he would have filled had he been hired on November 18, 1986, or, if such position no longer exists, to a substantially equivalent position, and make him whole for any losses of pay or bene- fits he may have suffered by reason of the Re- spondent's refusal to hire, to be completed in the manner set forth in the remedy section of the judge's decision 2 Insert the following for paragraph 2(b) and re- letter the subsequent paragraphs accordingly "(b) Expunge from its records and files any and all references to the unlawful refusal to hire Robert C Leidigh and notify him in wntmg that this has been done and that evidence of this unlawful action will not be used/ as a basis for future personnel action against him" 3 Substitute the attached notice for that of the adinmistrative law judge 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 unlawfully fail or refuse to hire or put to work employees who file unfair labor prac- tice charges with the National Labor Relations Board nor will, we engage in any conduct that has a tendency to impede or interfere with employees' employment opportunities because they have filed unfair labor practice charges with the National Labor Relations Board WE WILL NOT unlawfully otherwise interfere with employees' 8(a)(4) rights WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL offer Robert C Leidigh immediate em- ployment in the job he would have filled on No- vember 18, 1986, had we hired him or, if such job 534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and or other benefits he may have suffered by reason of our refusal to hire him, with interest WE WILL remove from our files any references to the refusal to hire Robert C Leidigh in Novem- ber 1986, and we will notify him that this has been done and that evidence of the unlawful refusal to hire him will not be used as a basis for future per- sonnel actions against him FREIGHTWAY CORPORATION AND KAPLAN ENTERPRISES, INC Paul Lund, Esq , for the General Counsel Stephen R Serraino, Esq , for the Respondents Robert C Leidigh, of Napoleon, Ohio, in propna perso- na DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge The original charge' in Case 8-CA-20032, filed by Charging Party, Robert C Leidigh, an individual, on Apnl 16, 1987, was served by certified mail on Freightway Corpo- ration (Respondent Freightway) on the same date A complaint and notice of hearing was issued on May 29, 1987 The ongmal charge in Case 8-CA-20455, filed by the Charging Party on October 8, 1987, was served on Respondent Freightway Corporation by certified mail on the same date An amended charge, filed by Charging Party in Case 8-CA-20455, on January 20, 1988, was served on Respondent Freightway Corporation and Re- spondent Kaplan Enterprises, Inc by certified mail on the same date A second amended order consolidating cases, second consolidated amended complaint, and notice of consolidated hearing was issued February 25, 1988 Among other thmgs, it is alleged in the second consolidated amended complaint that the Respondents had discnnunated agamst and caused or attempted to cause other employers to discriminate against the Charg- ing Party because he filed charges with the National Labor Relations Board and that the Respondents have failed and refused to hire the Charging Party because he engaged in union and/or protected concerted activities and/or because he filed unfair practices with the Nation- al Labor Relations Board (the Board) in violation of Sec- tion 8(a)(1), (3), and (4) of the National Labor Relations Act The Respondents filed a timely answer denying that they had engaged in the unfair labor practice alleged The consolidated cases came on for hearing in Toledo, Ohio, June 28, 1988 All parties were afforded a full op- portunity to be heard, to call, to examine and cross-ex- ( 1 Although the charge filed with the Board was signed by Letcligh, the copy served on Freightway was unsigned See Infra amine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs All briefs have been carefully considered On the entire record in this case and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS OF FACT, CONCLUSIONS, AND REASONS THEREFOR I THE BUSINESS OF THE RESPONDENT Respondent Freightway is an Ohio corporation with its principal office and place of 6usmess located at 131 Matzmer Road, Toledo, Ohio, where it is a common car- rier in the interstate and intrastate transportation of freight and commodities Annually, in the course and conduct of its business, the Respondent derives gross revenues in excess of $50,000 from the transportation of freight and commodities from the State of Ohio directly to points located outside the State of Ohio Kaplan Enterprises, Inc (Respondent Kaplan) is an Ohio corporation with its principal office and place of business located at 131 Matzmer Road, Toledo, Ohio, where it is engaged in providing employees and equip- ment to Respondent Freightway Annually, in the course and conduct of its business, it derives gross revenues in excess of $50,000 from enterprises located within the State of Ohio, which are engaged in commerce on other than an indirect basis Respondent Freightway is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act Respondent Kaplan is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act Respondent Freightway and Respondent Kaplan are Joint and single employers and are herein referred to as the Respondent 2 II THE LABOR ORGANIZATION INVOLVED Teamsters, Chauffeurs, Warehousemen and Helpers Union Local No 20 affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO is now, and has been at all times material, a labor organization within the mean- ing of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES Robert C Leidigh worked as a truckdnver for the Re- spondent under the Union's contract from July 1976 to May 1987 According to the Respondent, Leidigh volun- tarily resigned May 24, 1986 He was considered as a voluntary quit What occurred was that a broker with whom the Respondent was dealing went out of business or canceled its lease As a result, Leidigh's job was elimi- nated He was offered the option to transfer to the 2 Counsel for Respondent stated "We'd be willing to stipulate that Freightway Corporation and Kaplan Enterprises could be considered single and joint employer—If we can just limit it just to this hearing" The stipulation was accepted FREIGHTWAY CORP 535 Toledo terminal or, as expressed by Jay Kaplan, presi- dent of the Respondent He could transfer onto a Toledo truck He could even have taken the piece of equipment back to De- fiance, or Napoleon, or whatever, and he had facili- ties where they could park it So he wasn't chang- ing his way of doing business at all, other than he would have been on a company truck, rather than a broker's truck Everything else would have re- mained the same Ladish declined to accept the Respondent's offerings, and thus was considered a voluntary quit Ladish filed a grievance with the Union over his vol- untary quit status As explained by Kaplan, "Wile Team- sters, because of the bylaws, and the contract that we're under with the Teamsters, found it to be unvand [sic 1" On October 10, 1986, Ladish also filed an unfair labor practice charge over the same event Ladish claimed he had been discriminated against In due course on Novem- ber 25, 1986, the Regional Director for Region 8 refused to issue a complaint stating "the investigation disclosed that you were regarded as a voluntary resignation after you repeatedly refused to respond to your employer's in- quiries concerning whether you wished to remain in its employ at another facility after the Employer lost its truck lease with B & H Trucking" Ladish stated in his testimony that he did not go to Toledo because "I was afraid to go to Toledo" Several months after "the NLRB charge had expired" Ladish commenced looking for work He sent letters to Freightway and answered newspaper ads He contacted between 15 to 25 employers "by various means, a post- card, letter, telephone" He sent "10 actual formal appli- cations" to employers On at least one occasion he passed a road test The employer was ready to hire him subject to checking his references, he was never hired Freightway was Leidigh's only reference Ladish finally obtained a job with Burkhart Trucking to whom he ex- plained "what had happened" All Ladish's applications for work which were ad- dressed to the Respondent were not accepted In a handwritten letter mailed to Kaplan, November 18, 1986, Ladish wrote, among other things, "I am will- ing to come in, or talk it over with you" In another letter dated December 9, 1986, Ladish wrote to Kaplan, "As I have made myself available for work on 11-18-86, I am also requesting a reference for other employment also" On June 1, 1987, Ladish wrote Freightway Cor- poration, "This request for application and reference is in addition to my prior 2 requests" On June 23, 1987, La- dish again wrote Freightway, "This is an un-conditional offer for any work available for now, or in the future" By certified mail dated November 6, 1987, Ladish sent this letter Since I have made offers to work for Freightway Corp as late as June 1987, I have not heard any re- sponse from Freightway Corp I again wish to inform you that I am making an unconditional ap- plication for any work you have available I assume that you have my application which was completed in July 1976, still on file If you need any date let me know Freightway acknowledged receipt of Leidigh's No- vember 6 letter The reply, among other things, related that an application had been sent to Ladish on June 3, 1987, which has not been returned, that without a com- pleted application Ladish could not be considered for employment, and that Leidigh's 1976 application was no longer effective Ladish answered November 19, 1987, "As per my letter of Nov 6, 1987, I am un-conditionally offering my application, for services for employment, as I am qualified, (Dot and/or ICC) requirements included in this offer" Again, on November 27, 1987, Ladish wrote, "I am un-conditionally offering my services for employment, as I am qualified also, under all govt regu- lations" Yet another letter was written on April 29, 1988, by certified mail (copies to EEOC and NLRB), "This is to notify all concerned that I have sent regis- tered mail, a proper application to the above company, plus other prior requests for work and/or application in the past months If there is a problem with this situation, please notify me, or the above parties" By letter dated May 11, 1988, the Respondent ac- knowledged Ladigh's letter of April 29, 1988, and an "Application for Employment" enclosed therein The letter in part read as follows After reviewing your letter and the enclosed doc- ument, I understand that you wish to apply for em- ployment as a driver with Freightway Corporation However, I disagree with certain statements m your letter First, I disagree that you have provided "a proper application" for consideration as a driver with Freightway Corporation Second, while you have sent two or three "requests for work" to this company since your voluntary quit in June, 1986, you have never submitted a completed application form that would permit you to be considered for a driver position with Freightway Corporation Moreover, in response to your only request for an application form, which request you made by means of a handwritten note dated June 1, 1987, I sent an application form to you on June 3, 1987, the same day your written request was received That form, completed by you, has never been returned to Freightway Corporation or to the employee leasing firm that supplies this company's drivers In any event, if you want to be considered for employment as a driver with Freightway Corpora- tion, then you must follow the application process utilized when new drivers for Freightway Corpora- tion are sought Therefore, enclosed is an applica- tion form utilized to imtiate the hiring of new driv- ers for Freightway Corporation While much of the information requested on the enclosed application form is similar to the information provided on the document you sent, those two forms are not identi- cal More importantly, all applicants for positions as drivers with Freightway Corporation must com- plete the appropriate application form It should be 536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a simple matter for you to complete and return the enclosed form. Upon receipt, your application form will be di- rected to the employees leasing firm utilized by Freightway Corporation to fill driver positions. Your application will be retained and considered in the same manner as any other applicant for a driver position. Finally, we do not wish to give you any false hope. Currently, and for the foreseeable future, Freightway Corporation does not anticipate any driver positions becoming available. In addition, if such a position or positions do become available, you should know the employee leasing firm we retain has applications for driver positions on file presently. Thus, should openings for driver posi- tions with Freightway Corporation become avail- able, your application would be considered at that time and with the other group of applications. Freightway Corporation cannot assure you that just because your application is received and may be considered by the employee leasing firm, that you would be, automatically, selected for such an open- ing. Upon receipt of the enclosed application form, completed by you, the employment process can begin. A copy of the letter was sent to Paul Lund, counsel for the General Counsel. Leidigh responded by letter of May 24, 1988: This is an un-conditional application for work, as I am DOT qualified. Also the application form sent registered mail, is completed, and sent to Paul Lund, NLRB attorney Cleveland, Ohio, and also because of legal and other questions, please refer to him on this, and any other legal question, as he is handling any and all correspondence between par- ties involved in these matters. As noted above, while the exchange of letters was oc- curring between Leidigh and the Respondent, Leidigh was seeking employment with other employers. At least two of these employers requested information concern- ing Leidigh from the Respondent. To Midwest Coast Transport's inquiry, the Respondent, by Richard Pursel, vice president of operations, responded (December 4, 1986) that Leidigh possessed a "poor" attitude, 3 experi- enced three preventable accidents, and was not rehirea- ble. As reasons for its desire not to rehire Leidigh, the Respondent stated, "cannot afford the legal expense 4 to defend the charges filed with 0.S.H.A., National Labor Relations Board, and other government agencies. All of the past charges filed were determined to be unfound- 3 The Respondent states in its postheanng brief, p. 25 "Pursel agreed that continually filing unfounded charges with the government agencies might help substantiate a poor attitude toward Freightway." 4 Pursel testified that "the term legal expense was a mistake. It should have just been company expense" ed." On this point Pursel was asked the question, "And the reasons that riu gave that you wouldn't rehire him was because of the charge he filed with OS HA and the National Labor Relations Board and other government agencies. Is that correct? "To which he answered," "That's correct." The Respondent also received an inquiry concerning Leidigh's qualifications from CARGO. The Respondent, by Purse!, answered that Leidigh was a "very hard person to deal with," his "over all attitude towards the Company was very poor," and the Respondent would not rehire him. In regard to the "poor attitude," Pursel testified "I would say if a person consistently filed charges that turned out to be totally unfounded and with out merit, that would substantiate the—a poor attitude." Pursel further testified that irregardless of whether Leidigh had submitted an employment application he would not have hired him. 7 Pursel testified that he did not want to rehire Leidigh, "Well, Mr. Leidigh is show- ing two accidents" and that "along with his accident record" the reasons8 answered on Midwest Coast Trans- port inquiry had "a bearing on it." (Emphasis added.) Conclusions and Reasons Therefor There are two questions to be considered in this case: whether the Respondent caused or attempted to cause other employers to discriminate against Leidigh because he filed charges with the National Labor Relations Board, and whether the Respondent failed and refused to hire Leidigh because he filed charges with the National Labor Relations Board. On the basis of the credited evi- dence in the record, the questions are answered in the af- firmative. I am convinced that the Respondent's repre- sentations to Midwest Coast Transport that the Respond- ent would not hire Leidigh because of his NLRB filings had a tendency to induce Midwest to avoid hiring Lei- digh, and had a tendency to impede and interfere with Leidigh's employment opportunities. See Madison South Convalescent Center, 260 NLRB 816, 823 (1982); Steere Broadcasting Corp., 158 NLRB 496 (1966). Additionally, it is clear from the credited record that the Respondent refused to consider Leidigh, a competent driver, 3 for 5 Kent M. Brandsgaard, driver qualifications, for Midwest Coast Trans- port, was unclear in his testimony about why Lealigh's application was rejected. 5 Pursel said of Leicligh, "So overall, as far as handling the equipment, and doing the paperwork, he does have the knowledge and ability to do so." 7 While the Respondent Insisted that it could not have considered Lei- digh for hire because he had not submitted a proper application for em- ployment, it is clear that such submission would have been futile, for the Respondent would not have hired him under any circumstances. 8 See supra 9 It would appear that Leidigh was a competent driver and otherwise possessed the qualifications for truckdnving, for the Respondent in its postheanng bnef, p. 18, states "the reality is Mr. Leidigh has obtained employment with two different trucking firms. . . . Currently Mr. Lei- digh drives for ZTI Trucking out of Holgate, Ohio. He has driven for ZTI since May 1988 Prior to that he was driving for Burkhart Trucking from January, 1987 through April, 1988" And at p. 25 "Mr. Leidigh has the knowledge and ability to drive a truck." FREIGHTWAY CORP 537 hire because he had filed charges with the Board While the Respondent claims other reasons, these reasons are immaterial if the Respondent relied even in part on an il- legal reason as it did here A "discharge [here a refusal to hire] which is partially motivated by the employee's protected activity violates the Act despite the concurrent existence of an otherwise valid reason" NLRB v Prince- ton Inn Go, 424 F 2d 264 (3d Cir 1970) See also NLRB v Pembeck Oil Go, 404 F 2d 105, 110 (2d Or 1968) Moreover, it has been long established that discrimina- tion in hiring of employees for a reason at odds with the dictates of the National Labor Relations Act is unlawful Phelps Dodge Corp v NLRB, 313 U S 177 (1941) See also Newark Star Ledger, 232 NLRB 581 (1977), Pierce Governor Go, 243 NLRB 1009 (1979) That Leidigh's unfair labor practice charge was with- out merit is immaterial See Interboro Contractors, 157 NLRB 1295, 1298 In 7 (1966), Singer Go, 198 NLRB 870 fn 5 (1972) Accordingly I find that the Respondent has violated Section 8(a)(1) and (4) of the Act CONCLUSIONS OF LAW 1 The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the policies of the Act for jurisdiction to be exercised herein 2 The Union is a labor organization within the mean- mg of Section 2(5) of the Act 3 By unlawfully failing and refusing to hire Robert C Leidigh on and after November 18, 1986, 10 because he filed unfair labor practice charges with the Board and by unlawfully engaging in conduct which has a tendency to impede and interfere with Leidigh's employment oppor- tunities because he filed unfair labor charges with the Board, the Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (4) of the Act 4 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the poli- cies of the Act It having been found that the Respondent failed and refused to hire or put to work Robert C Leidigh on and after November 18, 1986, because he had filed unfair labor practice charges against the Respondent with the Board in violation of Section 8(a)(4) of the Act, it is rec- ommended in accordance with Board policy, that the Respondent offer Leidigh immediate employment to a position he would have filled on the date of the refusal to hire or, if that position no longer exists, to a substan- tially equivalent position, and restore to him any benefits he may have lost and make him whole for any loss of i° This date was Leidigh's first request for employment earmngs he may have suffered by reason of the Respond- ent's acts herein detailed, by payment to him of a sum of money equal to the amount he would have earned from the date of his unlawful discharge to the date of a valid offer of remstatement, less net interim earnmgs during such period, with interest, to be computed on a quarterly basis in the manner established by the Board in F W Woolworth Go, 90 NLRB 289 (1950), with interest to be computed in the manner New Horizons for the Retard- ed 11 On these findings of fact and conclusions of law and on the entire record, I issue the followmg recommend- ed 1 2 ORDER The Respondent, Freightway Corporation and Kaplan Enterprises, Inc , Toledo, Ohio, its officers, agents, suc- cessors, and assigns, shall 1 Cease and desist from (a) Unlawfully failing or refusing to hire or put to work employees who file unfair labor practices with the Board, or unlawfully engaging in conduct which has a tendency to impede or interfere with employee's employ- ment opportunities because they have filed unfair labor practice with the Board (b) Unlawfully interfering otherwise with employee's Section 8(a)(4) rights (c) In any like or related manner interfering with, re- straining, or coercing employees m 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 Robert C Leidigh immediate employment which he would have filled had he been hired on No- vember 18, 1986, or, if such position no longer exists, to a substantially equivalent position, and restore to him any benefits he may have lost and make him whole for any loss of pay he may have suffered by reason of Re- spondent's refusal to hire in accordance with the recom- mendations in the remedy section of the 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 (c) Post at its Toledo, Ohio facility copies of the at- tached notice marked "Appendix " 1° Copies of the " 283 NLRB 1173 (1987) Interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 12 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 13 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" 538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD • notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (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 IT IS FURTHER RECOMMENDED that the second consoli- dated amended complaint be dismissed insofar as it al- '4 The Respondent requests that the allegations based on the charge filed on April 16, 1987, in Case 8-CA-20032 be dismissed because the charge was not served on Preightway within the 10(b) period The Re- leges violations of the Act other than those found in this decision 14 spondent claims that even though the charge filed with the Board was signed by the Charging Party, the exact copy served upon Freightway, being unsigned, was not a lawful service Sec 10(b) provides for filing a "charge with the Board and service of a copy thereof upon the person against whom such charge is made" It is clear from the statute that nei- ther the original signed charge nor a signed copy must be served on the party charged thus the serving of an unsigned copy of the charge is suf- ficient service within the meaning and intention of Sec 10(b) Moreover, it was the Board's agents who assumed the function of serving the charge for the Charging Party Thus It may be presumed that such agents fol- lowed the Board's procedures and Rules and Regulations Indeed the charge was included with a letter dated April 16, 1987, which informed Freightway that a charge had been filed, indicating that "a copy of the charge is herewith served upon you" Under these circumstances, the Re- spondent had no reason to believe that the copy of the charge served on Freightway was other than a true copy within the meaning of Sec 10(b) and a valid copy of the charge filed with the Board The Respondent's request is denied