Central Storage and Transfer Co. of Harrisburg

National Labor Relations Board - Board Decisions

Aug 31, 1982

263 N.L.R.B. 806 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central Storage and Transfer Co. of Harrisburg and Judge and to adopt his recommended Order, as
Charles Leo Deaner. Case 4-CA-11760 modified herein. 3
August 31, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On February 24, 1982, Administrative Law
Judge Joel A. Harmatz issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, counsel for
the General Counsel and the Charging Party filed
cross-exceptions and supporting briefs, and the
Charging Party filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We note, however, that the Administrative Law Judge made several
inadvertent errors in his Decision. First, he stated that Deaner had been a
member of the Teamsters for a Democratic Union (TDU) since 1978. We
correct such error by noting that Deaner's TDU membership dates back
to 1975. Second, the Administrative Law Judge stated that the relevant
collective-bargaining agreement required probationary employees to com-
plete 30 days of work within 6 months of their initial employment to
achieve seniority status. We correct such error by noting that the rele-
vant provision requires instead that the employee complete 30 days of
work within any 6-month period. Once this is completed, the first day
worked in the qualifying 6-month period becomes the employee's senior-
ity date. Third, the Administrative Law Judge on several occasions sub-
stituted February 26, 1981, for February 25, 1981, as the date on which
Respondent refused to offer Deaner employment and as the appropriate
seniority date.
2 We adopt the Administrative Law Judge's finding that Respondent
violated Sec. 8(aX3) and (1) of the Act by refusing to offer employment
to Charles Leo Deaner, Jr., on or after February 25, 1981, because the
reasons given by Kenneth Flickinger, Respondent's former director of
transportation, for his refusal to offer rehire to Deaner (namely, Deaner's
opposition to Respondent's training program, to the length of its work-
day, and to the notion of giving up negotiated benefits if necessary to
sustain a dying company) all concern union-related matters. We therefore
find that Respondent's discriminatory refusal to hire Deaner based on his
expression of protected union-related matters, most particularly his advo-
cacy of strict adherence to the Master Freight Agreement, violated Sec.
8(aX3). See J. S. A4berici Construction Co., Inc., 231 NLRB 1038, 1042
(1977), enfd. in relevant part 591 F.2d 463 (8th Cir. 1979). In so doing,
we find it unnecessary to pass on whether Respondent's conduct also
constituted an independent 8(aXI) violation, to the extent that such viola-
tion is argued by the Charging Party in his cross-exceptions or to the
extent that the Administrative Law Judge may have addressed this as an
issue in the case in his Decision.
We also find that the Administrative Law Judge erred in admitting as
record testimony evidence of an alleged job offer in February 1981, be-
cause it occurred in the course of settlement negotiations. See East Wind
263 NLRB No. 89
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Central Storage and Transfer Co. of Harrisburg,
Harrisburg, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge from its files any reference to the
refusal to hire Charles Leo Deaner, Jr., and notify
him in writing that this has been done and that evi-
dence of this unlawful refusal to hire will not be
used as a basis for future personnel actions against
him."
2. Substitute the attached notice for that of the
Administrative Law Judge.
Enterprises, 250 NLRB 685, fn. 2 (1980), enfd. 664 F.2d 754 (9th Cir.
1981); Fed. R. Evid. 408.
: The Administrative Law Judge found, and we agree, that Respond-
ent illegally refused to hire Charles Leo Deaner, Jr. In accordance with
our decision in Sterling Sugars, Inc., 261 NLRB 472 (1982), we shall
order the expunction of any reference to this illegal refusal to hire from
Respondent's files.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
Accordingly, we give you these assurances:
806
CENTRAL STORAGE AND TRANSFER CO.
WE WILL NOT inform job applicants that
they will not be considered for employment
because they choose to engage in union activi-
ty.
WE WILL NOT discourage our employees
from engaging in union activity by refusing to
hire, or in any other manner discriminating
with respect to their wages, hours, or terms
and conditions of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed by Sec-
tion 7 of the National Labor Relations Act, as
amended.
WE WILL offer immediate employment to
Charles Leo Deaner, Jr., in an appropriate
probationary position on the dock, and will
make him whole for lost earnings, plus inter-
est, he sustained by reason of our discrimina-
tion against him in the manner set forth in the
Decision of the Administrative Law Judge.
WE WILL expunge from our files any refer-
ence to our refusal to hire Charles Leo
Deaner, Jr., and notify him in writing that this
has been done and that evidence of this unlaw-
ful refusal to hire will not be used as a basis
for future personnel actions against him.
CENTRAL STORAGE AND TRANSFER
Co. OF HARRISBURG
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This
proceeding was heard by me in Harrisburg, Pennsylva-
nia, on November 2 and 3, 1981, upon an initial unfair
labor practice charge filed on January 12, 1981, and a
complaint which issued on February 20, 1981, and
which, as amended, alleges that Respondent violated
Section 8(aX)(1) and (3) of the Act by refusing to offer
employment to Charging Party Deaner because he en-
gaged in activity in support of "Teamsters for a Demo-
cratic Union" (TDU). In its duly filed answer, Respond-
ent denied that any unfair labor practices were commit-
ted. Following close of the hearing briefs were filed on
behalf of the General Counsel, the Charging Party, and
Respondent.
Upon the entire record in this proceeding,' including
my direct opportunity to observe the witnesses while tes-
tifying and their demeanor, and consideration of the
post-hearing briefs, it is hereby found as follows:
I Errors in the transcript have been noted and corrected.
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Pennsylvania corporation engaged in
the warehousing and shipping of general commodities by
motor truck. In 1980, and upon a projected annual basis
thereafter, Respondent has and shall derive revenues
from the interstate cartage of goods in amounts exceed-
ing $50,000.
Based upon the foregoing, it is found that Respondent
is now, and has been at all times material herein, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union
No. 776, herein called the Union, is now and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
This proceeding tests the legitimacy of Respondent's
refusal to employ Charles Leo Deaner, Jr., in a dock-
man's classification on or about February 25, 1981. It is
conceded that Respondent hired several trainees in that
classification at that time.
Respondent has historically recognized the Union as
exclusive employee representative of separate units of
drivers, warehousemen, and mechanics. The Charging
Party has been a member of the Union since 1968. Like
membership on the part of his father, Charles E. Deaner,
dated back to 1945. The latter was secretary-treasurer of
the Union continuously between January 1967 and Janu-
ary 1979, when he apparently retired. Since 1978, the
Charging Party has also been associated with TDU, an
internal grouping of union members who seek to pro-
mote rigid adherence to the National Motor Freight
Agreement and to oppose local union policy to the
extent that deviations from the national contract by em-
ployers are condoned. Deaner's activity on behalf of
TDU included the preparation and distribution of litera-
ture on its behalf.2
In 1979, at the Charging Party's urging, his father,
who over the years had developed an acquaintanceship
with Respondent's officials, contacted the latter, in quest
of employment for the former. s As a result young
2 I agree with the observation by Respondent that there is no basis for
inferring on the primary evidence in this proceeding that Respondent had
knowledge of Deaner's role in connection with TDU literature.
I The witnesses offered on behalf of and in defense of the complaint in
this proceeding afforded testimony at length in peripheral areas which
are of no aid to analyses of the critical issue. Details have been omitted
to the extent that they are viewed by me as immaterial. Furthermore, the
Charging Party as well as John F. Voystock, Jr, Respondent's executive
vice president and a principal witness for the defense, impressed me as
unreliable. Their mutual penchant for argumentation, lack of straightfor-
wardness, and inclination to pass off self-serving interpretation as fact
made it difficult to assess which was the less truthful To say the least
much of the testimony afforded herein was thoroughly unreliable. Al-
Continued
807
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Deaner was hired by Respondent in April 1979 as a pro-
bationary employee in the dock worker classification. In
this connection it is noted that, by virtue of the subsist-
ing collective-bargaining agreement, a probationary em-
ployee does not achieve the status of a regular employee
with seniority protection until he completes, to the em-
ployer's satisfaction, a 30-day actual work requirement.
Furthermore, the contract requires the probationary em-
ployee to achieve seniority status within 6 months of ini-
tial employment or to start anew. In Deaner's case, this
6-month period expired in October 1979. As of that date,
Deaner had worked 11 days in April and May 1979, and
16 days in September and October 1979. Thus, he was 3
days short of fulfilling the probationary requirement
upon expiration of the 6-month period.
During the period that followed, Deaner secured occa-
sional work as a "casual employee" with various truck-
ing firms under contract with the Union. His interest in
completing his probation and obtaining a seniority posi-
tion with Respondent, however, was manifest. Thus, to
this end he on a monthly basis communicated with Re-
spondent between December 1979 and August 1980.
During this period, he had been informed on several oc-
casions by Kenneth L. Flickinger, who was at times ma-
terial employed by Respondent as its director of trans-
portation, that the Company would be hiring toward the
end of the summer 1980. This proved to be the case. In
July and August 1980, Respondent interviewed 30 appli-
cants for dock positions under a new training program.4
Deaner, however, was not afforded concrete information
by any representative of Respondent as to the availability
of these positions. 5 Nonetheless, on August 27, Deaner,
having heard of hiring from other employees at Central,
did in -fact telephone Flickinger. In that conversation,
Flickinger indicated that he had forgotten about Deaner,
because several of Central's employees had complained
about Deaner's union activities, describing him as the
type of person who "stirs up trouble and files griev-
though counsel will doubtless disagree, the single item of good fortune in
this proceeding is that the dispositive facts are beyond dispute. In any
event, the factual account set forth in the above text has been gleaned
from credible undenied testimony which was either believable on its face
or which seemed entirely plausible when considered against objective
fact.
4 In February 1980, Respondent and Local 776 entered an ad hoc
agreement authorizing establishment of a training program. Respondent
was thereby licensed to hire applicants for driver and/or dockmen posi-
tions either as (I) experienced applicants, or as (2) trainee applicants.
Under that arrangement, those seeking for employment in category (I)
above were eligible only if they met specifically defined work experience
criteria. The inexperienced trainees, pursuant to the agreement, could be
compensated for an initial 6-month period at 70 percent of the rate for
the classification prescribed by the otherwise controlling collective-bar-
gaining agreement.
s Deaner testified that commencing in January 1980 he maintained a
daily log in which data which at least in part pertained to the issues in
this proceeding was recorded. He further testified that, in July 1980, he
had a conversation with Flickinger, in which the latter indicated that
hiring was anticipated and that Deaner should contact him again in
August. This represented an important change of Respondent's hiring
stance, for, according to Deaner's own testimony, the various contacts
with Respondent dating back to October 1979 merely informed that con-
ditions were slow and that work was unavailable in sufficient quantities
to support hiring. Nonetheless, no log entry was made by Deaner with
respect to the July 1980 conversation. His testimony that this information
was on a separate note which he had clipped to his log was not believed.
See Resp. Exh. 7.
ances," while further indicating that Deaner belonged to
a "group" within the Union. Deaner made reference to
having alerted Flickinger to the possibility that such ac-
cusations might arise, but Flickinger apparently dismissed
the entire matter as "just union politics." He then ad-
vised Deaner to call in on a weekly basis, as Central was
"going to be hiring people shortly."" No mention was
made by Flickinger, however, of the hiring of two dock
trainees on August 26, 1980. 7
Thereafter Deaner, who claimed to have been un-
aware that the Company had hired dock trainees in
August 1980, contacted Respondent regularly and was
generally informed that no work was available. Howev-
er, eventually in late November he claims to have first
learned that Respondent had hired dock trainees in
August.
In consequence, on December 1, 1980, Deaner tele-
phoned Flickinger. Previously, opponents of TDU pub-
lished a leaflet, which may be fairly described as propa-
ganda criticizing TDU supporters, including Deaner.
The leaflet included a photograph of Tom Griffith,
whom it identified as a member of TDU. Griffith is
quoted as having made a statement concerning the "dete-
rioration" of the Master Freight Agreement in conse-
quence of local "sweetheart" arrangements. Deaner, like
Griffith, was ridiculed therein as follows:
We understand Charley Deaner, the former secre-
tary-treasurer (joke)! Has been contacting compa-
nies, trying to get his son Leo Deaner a job. Is it
because he knows he is too tired to go apply for a
job himself. (Daddy will get me one).
This leaflet had not passed Flickinger unnoticed. Ac-
cording to the uncontradicted credited testimony of
Deaner, the December I conversation opened with his
inquiry as to when he would be recalled. Flickinger hesi-
tated, and then, in what turned out to be a reference to
the above leaflet, stated: "I got a nasty thing in the mail
about you," going on to describe the leaflet as mention-
ing Deaner and another employee who supposedly
worked at Roadway. 8 Flickinger went on to state that
the leaflet "creates problems for me which I can't con-
trol," and then admittedly "advised Mr. Deaner that he
wasn't going to be with us ... ."
It is clear from the testimony of both Deaner and
Flickinger that as conveyed by the latter, Central Stor-
age as of December 1, 1980, determined no longer to
consider Deaner for employment. 9 Although Flickinger
" It is noted in this connection that the Regional Director on February
26, 1981, dismissed the original unfair labor practice charge insofar as
predicated upon any act of discrimination by Respondent on or about
August 29, 1980. See Resp. Exh. 1.
7 To the extent outlined in the above text I credit Deaner's account of
the August 27 conversation. His testimony was uncontradicted and, to
the extent credited, impressed as truthful and probable in the light of
other indisputable matters. In any event, as shall be seen, consideration of
the events of August 1980 is viewed as unnecessary to the result ultimate-
ly reached on the issue framed by the instant pleadings
I Flickinger acknowledged that G.C. Exh. 4 was the document he had
referred to in the December I conversation with Deaner
9 Although at the time of the December I conversation, Respondent
was not hiring, on February 25, 1981, Respondent hired four dock train-
Continued
808
CENTRAL STORAGE AND TRANSFER CO.
stated that his determination in this respect was not be-
cause of "outside influences," his disqualification of
Deaner was admittedly founded upon concern for "his
attitude and his ability to fit into Central Storage with
the other employees and to do and agree and work for
what the Company wanted them to."
According to Flickinger, Deaner "didn't feel that con-
cessions .. should be made to individual companies,
that we should live by the contract as it was signed by
both parties." The meaning behind the foregoing re-
ceived further distillation from Flickinger when he went
on to describe the objections to Deaner as founded upon:
(1) Deaner's having expressed to Flickinger at his initial
hire interview that he did not believe that employees
should agree to relax negotiated benefits in order to help
a company survive during hard times, but instead stated
that "if a company can't survive then they should be put
out of business"; (2) Deaner's having expressed to Flick-
inger his opposition to Respondent's training program
because it called for the payment of rates at less than
those required by the basic collective-bargaining agree-
ment; (3) Deaner's having expressed his opposition to
Respondent's utilization of a 13-hour, 20-minute day, be-
cause this constituted a further concession which was out
of line with the Master Freight Agreement.
Apparently, Flickinger held no monopoly on the re-
sentment harbored by Respondent against Deaner on
these grounds. The foundation for his animus was implic-
it in the account of Respondent's executive vice presi-
dent, John F. Voystock. It was the sense of the latter's
testimony that the special needs of Respondent's motor
carrier operations made it imperative that Local 776's
concessions in the areas of training and length of work-
day be preserved. In the final analysis, Deaner's declared
opposition to those important employer interests consti-
tuted the sole cause assigned by Respondent for the fail-
ure to employ Deaner.' Though Respondent had no ob-
ligation to hire him," in view of Voystock's acknowl-
edgment that Deaner was reported to be a good worker,
it is concluded from the total circumstances that
Deaner's declared opposition to internal union policy
was the motivating factor underlying Respondent's com-
ees. Thereafter, on May 4,1981, Respondent hired three dock trainees.
Since I construe the amended complaint as alleging actual discnrination
initially from February 25, 1981, the absence of a vacancy on December
1, 1980, is of no solace to Respondent. In any event, under established
Board authority the existeice of a vacancy is not indispensable to the
8(aX3) violation. See Shawnee Industries Inc., 140 NLRB 1451, 1452-53
(1963), enfd. on other grounds 333 F.2d 221 (10th Cir. 1964); Valley Cabi-
net Mfg.. Inc., 253 NLRB 98, 99-100 (1980); Alexander Dawson. Inc,
228 NLRB 165 (1977); King Soopers A Dirision of Dillon Companies Inc.,
257 NLRB 1033 (1981). Cf. Harbro Industries Inc., 254 NLRB 587
(1981); Anchorage Tmes Publishing Ca, 237 NLRB 544 (1978); Daniel
Construction Company, 244 NLRB 704 (1979).
10 Argumentation in Respondent's post-hearing brief, through which a
purity of motive is ascribed to Respondent from counsel's own specula-
tive interpretations of the events, is deemed to be beside the point. Coun-
sel are bound by the causation described in their own evidence.
11 At no time since October 1979 did Deaner file a new employment
application with Respondent. However, the record does not disclose that
such a requirement with respect to an unfulfilled probationer was pub-
lished to employees generally. Nor does it appear that any representative
of Respondent informed Deaner that refiling was required. In any event
no witnesses for Respondent testified that such failure to file influenced
the action taken against Deaner.
munication of its refusal to consider him for rehire on
December 1, 1980, and its subsequent refusal to offer him
employment on February 25, 1981.'2
Based on the foregoing,' the legal issue presented is
whether Section 7 is broad enough to encompass em-
ployee views and opinions as to the course of internal
union policy, where espousal of such attitudes collide
with, or run counter to, employer interests. 14 Among
other things, Section 7 of the Act guarantees employees
"the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through rep-
resentatives of their own choosing . . . and . . . to re-
frain from any or all such activities .... " Participation
in the ongoing dialogue through which a consensus
among workers pertaining to their conditions of work is
achieved lies at the cornerstone of our system of industri-
al self-government, and is inseparable from the explicitly
defined Section 7 right to engage in collective bargain-
ing. Furthermore, the Act contemplates a system of col-
lective bargaining which is both free and independent,
yet, neither term would accurately obtain if the role of
the membership in the formulation of internal union
policy were subject to influence through the inherent au-
thority of employers over hiring and firing. These con-
siderations provide the threshold for longstanding Board
authority banning employers from such "an inexcusable
intrusion into the private affairs of the Union and the
'2 Deaner's participation in TDU was known by Flickingei prior to
December I. Flickinger acknowledged that just prior to their conversa-
tion of that date he was "shocked" at discovery of that fact. Nonetheless,
in the circumstances, I am hesitant to conclude that TDU specifically
was anything but incidental to the motivation on which Respondent
acted. Rather, the view held by a supporter of TDU, though, perhaps, an
inseparable factor. is found to constitute the actual cause behind Re-
spondent's action.
1s The evidence fails to substantiate Respondent's further claim that
Deaner would not have accepted a positron as dock trainee, even if of-
fered, and that he was not qualified for any other position. It is clear that
Respondent hired no one outside of the training program between De-
cember 1, 1980, and October 1981, and it is possible that Deaner may not
have qualified for the experienced position filled on the latter date. None-
theless, Respondent by its own inaction has left the foundation for any
such defense in an ambiguous state. It is true that, in the course of a long
narrative response, Flickinger made a somewhat oblique reference to
Deaner's rejection of a position in August 1980 as a "driver trainee."
Beyond that, however, the matter was left undeveloped. Even assuming
that such position was refused by Deaner. that factor is of little relevance
since it was not among the motivating considerations described by Flick-
inger, and in any event did not relate to Desner's efforts to obtain em-
ployment on the dock. The only circumstance in which Deaner was of-
fered a job as a dockman trainee derived from settlement discusaiona in
which an offer of employment was made to a Board agent plainly condi-
tioned upon withdrawal of the unfair labor practice charges, and as part
of a dialogue through which the parties sought to fashion a mutually ac-
ceptable formula for disposal of this proceeding. Upon rejection of that
offer by the Board agent on behalf of Deaner, Respondent did nothing to
suggest that. independent of those negotiations, it was willing to employ
Deaner as a dockinrn at any time or under any circumstances. Further-
more, in October 1981, the Company hired a dockman outside the train-
ing program on the basis of his working experience; i.e., 2 years' experi-
ence in the job classification within the past 5 years in the LTL motor
carrier industry. Although Voystock testified that he had no knowledge
as to whether Deaner was eligible for such a position, Respondent made
no effort to determine whether this was the case, and hence the matter is
left in a speculative state.
i" In the circumstances, the cases cited by Respondent pertaining to
"lack of knowledge" are inapposite.
809
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees it represented."
5 Consistent therewith in Nu-
Car Carriers, Inc., 88 NLRB 75 (1950), enfd. 189 F.2d
756 (3d Cir. 1951), cert. denied 342 U.S. 919 (1952), the
Board at 76-77 stated:
We do not believe that the intent or purpose of the
amended Act is to foreclose employees from ques-
tioning the wisdom of their representatives or from
taking such steps as they deem necessary to align
their union with their position. The Board has pre-
viously stated that interference with intraunion dis-
putes, under certain circumstances, may be violative
of the Act to the same extent as coercion exerted in
employer-union or interunion conflicts. The dis-
charge of a dissident within a union when that ter-
mination is motivated by a desire to eliminate pro-
test must inevitably result in an infringement under
Sections 8(a)(1) and 8(a)(3) of that employee's right
to self-organization. We believe that inherent in that
right is the privilege of protest and persuasion of
others. Without this, effective employee representa-
tion becomes a nullity.
Notwithstanding the above, Respondent contends that
its action against Deaner may be equated with legitimate
employer reaction of demonstrative conduct on the part
of an employee in derogation of an established collec-
tive-bargaining relationship. It is true that statutory pro-
tection may be lost should employees engage in a refusal
to perform in accordance with the term of negotiated
agreements,'8 or participate in overt acts injurious to
employer interests,"' or which undermine the Union's
status as exclusive representative. 1 In those circum-
stances, other statutory policies might well be entitled to
primacy over the employee activity.'
9 Here, however,
l' Paranite Wire & Cable Division, 164 NLRB 319, 320 (1967); The E.
W Buschman Company, Incorporated, 153 NLRB 699, 712 (1965), and
cases cited at fn. 8 thereof.
"6 N.LR.B. v. Sands Manufacturing Ca, 306 U.S. 332 (1938).
N7 .LR.B. v. Local Union 1229, IBEW [Jefferson Standard Broadcast-
ing Company), 346 U.S. 464 (1953). Contrary to Respondent, Deaner's
opinions were not stripped of their protected status because describable
as "potentially disruptive" or because his views "might cause dissension
among the work force." Sec. 7 cannot hang from so delicate a thread.
The employee activity protected thereby will seldom be immune from
such characterizations by managers. The aptness of such characterization
is heightened where, as here, the views of the employee threaten impor-
tant economic concessions won by the Employer from the Union.
is Emporium Capwell Ca v. Western Addition Community Organization,
420 U.S. 50 (1975). Contrary to Respondent, there is no evidence to sub-
stantiate that Respondent had reasonable basis for belief that Deaner, if
hired, would have engaged in activity in derogation of the collective-bar-
gaining agreements. Although Respondent points to the fact that Deaner
had previously been terminated from his employment at Eastern Express
on the stated ground that he was "impeding the employer's operation,"
this discharge was subsequently converted to a suspension, and insofar as
this record discloses, the offense on which that discipline was based de-
rived from Deaner's having talked to coworkers during working time. In
any event, the record does not disclose that Flickinger had any knowl-
edge of this incident, formed any conclusions based thereon, or was actu-
ated thereby in discriminating against Deaner.
'1 See, e.g., Swank Construction Company, 239 NLRB 844 (1978) ("the
employer retaliated against [the employee] not because he invoked the
grievance-arbitration procedure, but because he bypassed the contract
procedure in the jurisdictional dispute matter); N.LR.B. v. Furriers Joint
Council of New York, etc., 224 F.2d 78 (2d Cir. 1955) (employee violation
of valid provisions of a collective-bargaining agreement).
the discrimination against Deaner was founded upon an
assertion of statutory rights under conditions which cre-
ated no tension with other overarching statutory policy.
His expressed attitudes, insofar as this record discloses,
were implemented solely through the medium of verbal
and written persuasion, transcommunicated to fellow
members within the framework of the Union. In sum,
speech, not conduct, was involved and there was neither
violation of subsisting agreements nor acts in derogation
of the Union's status as exclusive representative.
20
In the total circumstances, I find that Respondent vio-
lated Section 8(a)(3) and (1) of the Act on December 1,
1980, by declaring that it would not hire Deaner in the
future, and, on or after February 26, 1981, by refusing to
offer employment to Deaner, all because he held views
in opposition to a union policy whereby Respondent en-
joyed concessions from the Master Freight Agreement.21
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(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. Respondent violated Section 8(a)(3) and (1) of the
Act by on December 1, 1980, informing Charles Leo
Deaner, Jr., an applicant for employment, that he would
not be hired, and by on February 26, 1981, refusing to
offer him employment because of his union activity.
4. The above unfair labor practices constitute unfair
labor practices having an effect upon commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that it
cease and desist therefrom and take certain affirmative
action deemed necessary to effectuate the policies of the
Act.
Having found that Respondent discriminatorily refused
to offer Charles Leo Deaner employment on or about
0o See, e.g., Local 28, Sheet Metal Workers International Association,
AFL-CIO (Treadwell Corporatnon), 243 NLRB 1061, 1065 (1979); Ameri-
can Steamship Company, a Subsidiary of General American Transportation
Corporation, 222 NLRB 1226, 1236-39 (1976).
'I To further excuse its unlawful conduct, Respondent points to the
fact that the Regional Director, with approval of the General Counsel in
Washington, dismissed Deaner's unfair labor practice charge insofar as it
was predicated on an alleged discriminatory refusal to hire on August 29,
1981. The Regional Director concluded that there was insufficient evi-
dence at that time to establish that the employer unlawfully refused to
hire, stating specifically that "the investigation disclosed that the employ-
er elected to hire trainees to fill its needs for dock employees." Respond-
ent observes that the implication of the Regional Director's letter is that
Deaner was not eligible or interested in such positions. This is not an im-
permissible interpretation of the basis for the Regional Director's action.
Nonetheless, while the Region's disposition forecloses me from finding an
unfair labor practice in August 29, 1980, beyond that it is irrelevant to
this proceeding. The issue before me concerns alleged discrimination in
December 1980 and February 1981, and whatever facts were before the
Regional Director as of the earlier date, and whatever his interpretation
and analysis thereof, his views with respect to earlier events are irrele-
vant and fail to give rise to an estoppel impeding the processing of the
instant complaint on the record made.
810
CENTRAL STORAGE AND TRANSFER CO.
February 26, 1981, it shall be recommended that Re-
spondent offer him immediate employment in the posi-
tion of probationary dockman trainee or probationary ex-
perienced dockman, 22 discharging any person hired
since February 26, 1981, if necessary and without preju-
dice to the seniority or other benefits Deaner would
have enjoyed had he been hired at that time. It shall fur-
ther be recommended that Respondent be ordered to
make Deaner whole for any loss of earnings he may
have suffered by reason of Respondent's unlawful refusal
to hire him, said backpay to be reduced by net interim
earnings and to be computed on a quarterly basis as pre-
scribed in F. W Woolworth Company, 90 NLRB 289
(1950), with interest as prescribed in Florida Steel Corpo-
ration, 231 NLRB 651 (1977).23
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record herein, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER2 4
The Respondent, Central Storage and Transport Co.
of Harrisburg, Harrisburg, Pennsylvania, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Informing an employee that he no longer will be
considered for employment because of his union activity.
(b) Discouraging employees from engaging in union
activity by refusing to hire, or in any other manner dis-
"2 The question as to whether, under the terms of the training pro-
gram, Deaner met the criteria for hire into the experienced classification
is a matter which cannot be conclusively determined on the instant
record. The issue is one which transcends the question of liability, and
which would be appropriate for resolution in the compliance stages of
this proceeding.
'a See, generally, Isis Plumbing & Heating Ca, 138 NLRB 716 (1962).
"4 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
fuindings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
criminating with respect to their wages, hours, or terms
and conditions of employment.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer immediate employment to Charles Leo
Deaner, Jr., as a probationary employee in the classifica-
tion of either dock trainee or experienced dockman, as
may be appropriate in his circumstances, without loss of
seniority or other benefits, and make him whole for earn-
ings lost by reason of the discrimination against him in
the manner set forth in the section of this Decision enti-
tled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze and determine the amount
of backpay due under the terms of this Order.
(c) Post at its place of business in Harrisburg, Pennsyl-
vania, copies of the attached notice marked "Appen-
dix."25 Copies of said notice, on forms provided by the
Regional Director for Region 4, after being duly signed
by Respondent's representative, shall be posted immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
23 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
gll