Central Transport, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1979

244 N.L.R.B. 656 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central Transport, Incorporated' and Richard L.
Stroupe, Sr. Case I0-CA - 13399
August 27. 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On March 29, 1979, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting 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, findings.2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as amended herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Central
Transport. Incorporated, Kingsport, Tennessee. its
officers agents, successors, and assigns, shall take the
action set forth in the said recommended Order. as so
modified:
I. Substitute the following for paragraph I (d):
"(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The name appears as amended at the hearing.
2 Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Producrs. Inc.. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefull) examined the
record and find no basis for reversing his findings.
3The Administrative Law Judge recommended that the board issue a
broad cease-and-desist order requiring Respondent to cease and desist from
violating the Act "in any other manner." However. we do not find Respon-
dent's conduct in this case egregious enough to warrant the issuance of such
an order. Consequently, we shall substitute the Board's narrow language.
requiring Respondent to cease and desist from violating the Act "in any like
or related manner." for the provision recommended by the Administrative
Law Judge. See Hickmorr Foods. Inc.. 242 NLRB 1357 (1979).
APPENDIX
NOTICE To EMPIOYES
POSTED BY ORDER OF IIE
NAIINAI. LABOR REI.AIIONS BOARD
An Agency of the United States Government
WE NWILL NOI refuse to permit employees of
Kent and James Ayers. or any other owner-op-
erators, to be employed as lease drivers because
of their union membership.
WE wl.L NOT coercively question any appli-
cant or employee about union sympathy or
membership.
WE WII.L NOT include any question about
union membership in our employment applica-
tion form.
WE wI.. NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE Wli.L make Richard Stroupe. Sr.. whole
for any loss of pay or other benefits, plus interest.
Wf! WILL notify Kent and James Aers of'
Johnson City, Tennessee. that we have no objec-
tion to Richard Stroupe. Sr.. being employed as
one of our lease drivers.
CI!NIRAI. TRANSP()RI. IN(()RPO)RA.I I)
DECISION
SIl \1 MIN I (I lit: (AS1
MA.RIt) (. I.l)AOl(. Administrative La1, Jdge: 11This
case was heard al Kingsport. Tennessee. oil August 17.
1978.1 The chlrge was tiled on January 30. and the com-
plaint was issued on March 21 and amended at the trial.
The Company refused to permit a striking coal-mine me-
chanic to drive one of its leased trucks ater qualifying him
as a driver. The primary issues are whether the Respondent
Company (a) coercively interrogated prospective employees
about their union membership and sympath, anid (2) dis-
criminatorily denied the driver employment because of his
union membership, in violation of Section 8(a)( I) and (3) of
the National Labor Relations Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the arguments made at the trial I make the following:
FINDIN(S ()1 FA( I
I. JRISI)I( I ON
The Company, a North Carolina corporation. is engaged
as a common carrier by motor vehicle in the interstate
transportation of chemicals at its terminal in Kingsport.
Tennessee. and annually receives revenue in excess of
' All dates are between Oclober 1977 and August 1978 unless otherwlse
indicated.
244 NLRB No. 103
656
CENTRAL TRANSPORT. INCORPORATED
$50,000 from the interstate transportation. I find that the
Company is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that the United Mine
Workers of America is a labor organization within the
meaning of Section 2(5) of the Act.
11. AI.LE(iED NFAIR I.ABOR PRAt(II('ES
A. Interrogation
When qualifying all applicants for employment as chemi-
cal tanker truckdrivers, the Company requires the applicant
to fill out an "Application for Employment & Personnel
Record." This application includes the question, "Give
name of any labor organization to which you are a mem-
ber." At the time of the employment interview, this ques-
tion is supplemented by oral interrogation. When applicant
Frank Miller was hired as an employee in November to
drive a company-owned tractor, Terminal Manager Harold
Bounds asked "had I ever been in the union or was in the
union." Miller answered no, and Bounds then stated (as
Miller credibly testified), "We don't hire anybody that was
in the union." (Miller impressed me as being an honest wit-
ness, endeavoring to testify accurately. Bounds admitted
asking applicants "if they are a member of the union," but
denied knowing or telling any driver about a company pol-
icy not to hire union members. From his demeanor on the
stand, he appeared willing to give fabricated answers in
support of the Company's cause.)
I find, particularly in the context of the terminal manag-
er's statement, that the Company does not hire union mem-
bers, that the question about union membership on the em-
ployment application and the oral interrogation about past
or present membership were coercive and unlawfully inter-
fered with the exercise of Section 7 rights, in violation of
Section 8(a)(1) of the Act.
B. Alleged Discrimination
I. Denial of employment
Richard Stroupe, Sr., was a member of the United Mine
Workers of America. He worked as a mechanic in a coal
mine located about 80 miles from his home and commuted
daily (160 miles) by car.
In October, about 2 months before the expected coal
strike, he was visiting some good friends, the brothers Kent
and James Ayers, who lived near his home and who were in
the garage business. He knew that they had purchased a
truck tractor and leased it to the Company. (This was a
1972 GMC tractor, L-25, being driven by a third brother,
Sidney Ayers.) The two Ayers brothers were talking about
purchasing a second truck, and James Ayers asked if
Stroupe would come and drive it with him, saving Stroupe
that long drive to work everyday. (The Company's terminal
was only 8 miles from Stroupe's home.) When told that he
could make as much or more money than he had been
making in the coal mine, Stroupe agreed that when the
strike began he would start to work for them and give it a
trial (in an effort to avoid returning to the undesirable un-
derground work). Thereafter the Ayers brothers purchased
a newer truck (a 1974 Peterbilt tractor, L-51), and leased it
to the Company on November 23.
On December 6, when the strike began, the Ayers broth-
ers took Stroupe to the terminal in Kingsport to be quali-
fied as a driver of the leased truck. (Paragraph 4(d) of the
lease agreement gave the Company the right to veto the
hiring of any driver by providing that "CONTRACTOR
[the Ayers brothers. lesors] shall not cause or permit any
one of his employees to operate said equipment until the
employee has been certified by CONTRACTOR and [em-
phasis supplied] by CARRIER [the Company. lessee] as
qualified in meeting all laws and requirements.") Terminal
Manager Bounds, as Stroupe credibly testified, told the
Ayers brothers that Stroupe "would probably make a good
driver" and "that he didn't see any reason why I couldn't
get a job" despite Stroupe's membership in the Mine Work-
ers, explaining that the Company was not in the coal busi-
ness. However, after asking Stroupe how he felt about
unions. Bounds warned that "the Company wouldn't hire
anyone who liked unions or would fire anyone who spoke
of a union." (Stroupe impressed me as being an honest.
forthright witness. I credit his account, and discredit
Bounds' denials. The Ayers brothers did not testify.)
Bounds gave Stroupe the "Application for Employment &
Personnel Record" to fill in, and told him that a road test,
written examination, police check, and physical examina-
tion were required. Stroupe asked if he should proceed to
get a physical, but Bounds stated that it was not necessary
at that time. Stroupe thereafter completed and turned in the
employment application on December 10, but Bounds de-
layed until January 3 to give him the written examination
and road test.
On January 3 Stroupe went with James Ayers to the ter-
minal. Stroupe turned in the negative police report; Bounds
gave the written examination: and company driver Lewis
Burrelson gave the road test, reporting back to Bounds that
Stroupe's test was "perfect." Bounds then filled out the road
test certificate, handed it and the written examination certi-
fication to Stroupe, and told him he was "qualified." but
added, "I can't give you a job." Bounds explained that
Stroupe was affiliated with the (Mine Workers) Union, and
that if he gave Stroupe a job, "he would get fired" as termi-
nal manager. Bounds said that "he would have to send my
application into High Point [the Company's headquarters
in North Carolina] and let them process it." Stroupe asked
if the Company would get in touch with him, and Bounds
answered, "Probably within three or four days." Stroupe
waited several days and telephones the Company's comp-
troller, who told him that the application had not been re-
ceived in High Point. The comptroller promised to check
with Bonds and call Stroupe back in I or 2 hours, but he
failed to do so.
Meanwhile, on January 3 as Stroupe and James Ayers
were leaving the terminal office, company driver Miller met
them and asked Stroupe if he was trying to get a job. and
Stroupe said yes. Inside the office Miller asked if Bounds
was going to hire Stroupe and (as Miller credibly testified)
Bounds answered. "I wanted to, but . . . I can't hire him
because of his being union." Several days later Miller was
again in the office and overheard Bounds telling James
Ayers, "I got a trip for you boys to go out on." Ayers
responded that he did not have a driver to go "because of
the reason you didn't hire Richard" Stroupe. Bounds then
stated, "I couldn't hire Richard because he's in the union."
657
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I discredit, as largely a fabrication, Terminal Manager
Bounds' account of what happened. He claimed that after
Stroupe took the road test on January 3 he talked with
Stroupe for about 5 minutes concerning getting his physical
and his driving record from the State, and then "he'd be
ready to go to work." (The Company did not require an
employee to have a physical before being hired. As driver
Miller credibly testified, Bounds hired him one day, and he
took his physical the next day, his first day on the job.
Moreover. Bounds promised Stroupe on January 3 that he
would forward Stroupe's application to the Company at
High Point. without mentioning Stroupe's first getting a
physical or awaiting Stroupe's Tennessee driving report.)
Bounds claimed that nothing was said about a union on
January 3 and also claimed that except for the fact that
Stroupe did not take the physical and get the State's driver
report, "he'd be working for Ayers today," if they needed
him. Yet Bounds claimed elsewhere in his testimony that on
January 3 Stroupe "was asked if he would go back to the
mines, if recalled" and Stroupe said yes: that "the following
day or the day after, I was talking to Mr. Ayers over the
phone, and I told him that Mr. Stroupe ... would be going
back to the mines" and "that I would think it would cost us
money by using part-time help": and that it was Ayers'
decision thereafter not to hire Stroupe. (When so testifying,
Bounds appeared to be fabricating whatever he thought
would sound plausible. I credit Stroupe's testimony that no,
"Definitely not," did he tell Bounds that when the strike
was over, he would be going back into the mines.)
2. Contentions and concluding findings
The General Counsel contends that Terminal Manager
Bounds had qualified Stroupe and was ready to hire him on
January 3, except for Stroupe's membership in a union. The
Company contends that the Ayers brothers were "totally
free to hire, fire, whomever they please, provided they are
qualified in accordance with the D.O.T. regulations"; that
Stroupe's qualification requirements had not been com-
pleted; that Stroupe told Bounds on January 3 "that he was
going back to the mines"; and that after Bounds so in-
formed Ayers, it was Ayers who decided, "I don't want
him." I find that the credible evidence supports the General
Counsel's contention. Bounds told Stroupe and James
Ayers on January 3 that Stroupe had been qualified but
stated that Bounds' own job would be in jeopardy if he
hired Stroupe because of Stroupe's affiliation with the Mine
Workers. After Stroupe and Ayers left the office, Bounds
told driver Miller that he wanted to hire Stroupe but he
could not because of Stroupe's "being union." A few days
later Bounds again told James Ayers, "I couldn't hire Rich-
ard [Stroupe] because he's in the union," when Ayers
turned down a chemical-hauling job Bounds offered him,
complaining that he did not have a driver since "you didn't
hire Richard." Bounds said nothing to Stroupe about his
application papers being incomplete when Bounds prom-
ised on January 3 to forward them to headquarters to "let
them process" the application. I therefore find that Bounds
would have accepted Stroupe as a driver on January 3 if, as
Bounds informed him and James Ayers at the time, he had
not been affiliated with the Mine Workers Union.
The Company disclaims any responsiblity for the denial
of employment to Stroupe because, it contends, the non-
owner drivers of the leased truck tractors are employees of
"the Ayers brothers team, an independent contractor," and
"Mr. Stroupe was never an employee of ours." The General
Counsel, on the other hand, contends that the Company
and the Ayers brothers were joint employers of the lease
drivers. There is considerable evidence in support of the
General Counsel's contention. Despite the wording of para-
graph 18 of the lease agreement ("It is understood by both
parties to this Agreement that this is a contract for services,
and that there are no provisions contained in said Agree-
ment which would constitute an employer-employee rela-
tionship"), and the fact that the lease drivers and company
drivers have different compensation and benefits (the lease
drivers, e.g., being paid by the owner-operator on a mileage
basis and the company drivers being paid directly by the
Company on a percentage basis), the Company treats both
the lease drivers and the company drivers in much the same
way. All drivers, before being permitted to drive the trac-
tors hauling the Company's chemical tanker trailers, are
required to fill out and submit the Company's "Application
for Employment & Personnel Record." (This application
asks such questions as "Have you any relatives in our em-
ploy?" "Who sent you to us to seek employment?" and
"Date employment commenced." The application covers
detailed personal and family information, education, and
employment record, questions about driving rules, and con-
cludes, "I understand and agree that ... any failure on my
part to fully and truthfully answer same may, at the option
of said company, subject me to immediate dismissal from
employment without notice . ..") Althogh the lease driver is
paid by the owner-operator, such personnel records as his
employment application, certificate of written examination,
certificate of road test, police report, State driving record,
physical examination report, and employee status form are
kept by the Company. Special training is mandatory for
hauling chemicals, and the Company conducts training ses-
sions for all drivers. All drivers are required to abide by the
Company's rules and regulations contained in an operating
manual and in bulletins posted at the terminal. Both the
terminal manager and the owner-operator have the respon-
sibility for enforcing the rules. For disciplining lease driv-
ers, the terminal managers go "directly to the driver" con-
cerning certain offenses, and "we come to an agreement"
with the owner-operator on disciplining the lease driver for
other offenses and to terminate him. The terminal manager
may insist that a lease driver be disciplined or terminated
because, as he testified, the Company may terminate the
lease at any time. The terminal manager determines the
standard for lease drivers' complying with Department of
Transportation rules and regulation by having the Com-
pany absorb all DOT fines. The Company provides all driv-
ers with workmen's compensation insurance on the job.
However, I find it unnecessary to decide whether or not
the Company, as well as the Ayers brothers, would have
been an employer of Stroupe if the Company had not re-
jected him as one of its drivers because of his union mem-
bership. Even if there would have been no direct employer-
employee relationship between the Company and Stroupe,
the association between the Company and the Ayers broth-
ers "had an intimate business character." Austin Company,
658
(CENIRAL. RANSPORT, INCORPORATED
101 NLRB 1257, 1259 (1952): est Tevxas Ltiities (Core-
pat, 108 NLRB 407. 413 (1954): and lo//1 Manor Nursing
Home. 235 NLRB 426, fn. 4 (1978). Their community of
interests, as employers, is shown by the Compan's right to
determine who would he hired to serve as lease drivers, as
well as its right to subject them to its rules and regulations
and to control their training. discipline, and discharge. I
therefore find that by denying Stroupe employment on
January 3 because of his union membership. the Company
discriminated against him to discourage membership in a
union in violation of Section 8(a)(3) and (1) of the Act.
Finally, the Company contends that there was no job
available for Stroupe from January 6 when the older L 25
tractor "blew an engine" and March 17 when the tractor
was placed back in service. However. having found that the
Company discriminatorily denied him employment on
January 3, 1 find that the availability of work thereafter is
clearly a matter of compliance. (I note that the Ayers broth-
ers had not followed seniority when deciding to assign their
good friend, Stroupe, to drive the newer L 51 tractor in an
effort to persuade him to abandon the coal mines and work
for them. Neither James nor Kent Ayers was called to tes-
tify whether Stroupe would have been permitted to con-
tinue driving the newer tractor after the breakdown of the
older tractor in order to enable him to earn enough to re-
main away from the dangerous coal-mining work, or to tes-
tify whether they would have permitted the older tractor to
remain out of service for nearly 2-1/2 months -instead of
immediately repairing or replacing the engine- if there had
not been a shortage of drivers. As previously found, the
Ayers brothers, having failed to obtain the Company's ap-
proval to hire Stroupe, had been compelled to turn down
chemical-hauling work for the Company because of the re-
sulting shortage of drivers.)
CON(CUSIONS OF LAW
I. By discriminatorily refusing on January 3. 1978. to
permit the hiring of Richard Stroupe, Sr., to be one of its
lease drivers, the Company engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(3) and (1) and Section 2(6) and (7) of the Act.
2. By coercively interrogating employees about their
union membership and by including a question about union
membership in its employment application form, the Com-
pany violated Section 8(a)(1) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices. I find it necessary to order it to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
Because Respondent discriminatorily denied an appli-
cant employment as one of its lease drivers. I find it neces-
sary to order it to compensate him for lost pay and other
benefits from the date of the denial to the date it withdraws
its objections to his employment, less net earnings, in ac-
cordance with the formula set forth in F 4'. Woolworth
Company, 90 NLRB 289 (1950), plus interest as computed
in Florida Steel Corporation, 231 NLRB 651 (1977). See,
generally. Isis Plumbing & Hteating Co.. 138 NlRB 716
(1962). Inasmuch as Respondent's unlawful conduct goes to
the very heart of the Act. I find it unnecessary to issue a
broad Order. requiring Respondent to cease and desist from
infringing in any other manner upon the rights guaranteed
employees b Section 7 of the Act.
Upon the tforegoing findings of fact and conclusions of
law. upon the entire record. and pursuant to Section 10()(c)
of the Act. I hereb b issue the following recommended:
ORDER2
The Respondent. Central Transport. Incorporated.
Kingsport. Tennessee. its officers. agents. successors, and
assigns. shall:
1. ('ease and desist from:
(a) Discouraging membership in any labor organization
by discriminatorily refusing to permit applicants or emplo, -
ees of Kent and James Ayers. or ans other owner-opera-
tors. to be employed as lease drivers becaus of their union
membership.
(b) Coercively interrogating any applicant or emplosee
about union sympathy or membership.
(c) Including any question about union membership in
its employment application trm.
(d) In any other manner interfering with, restraining. or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessar, to et-
fectuate the policies of the Act:
(a) Make Richard Stroupe. Sr., whole for any loss of pa'!
and other benefits resulting rom the discrimination against
him in the manner set forth in the "Remed"' section.
(b) Notify Kent and James Ayers of Johnson (it'. I en-
nessee. that it withdraws all objections to the employment
of Richard Stroupe, Sr.. as one of its lease drivers.
(c) Post at its terminal in Kingsport, Tennessee. copies of
the attached notice marked "Appendix."' Copies of the no-
tice, on forms provided bh the Regional Director for Re-
gion 10. after being duly signed b Respondent's authorized
representative, shall be posted b) Respondent immediately
upon receipt thereof. and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places. including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
that the notices are not altered, defaced. or covered bh any
other material.
(d) Notify the Regional Director. in writing. within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
I In the event no exceptions are filted as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
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 he deemed
waived for all purposes.
'In the event that this Order is enforced by a Judgment of the nited
States Court of Appeals. the words in the notice reading "Posted b) Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order oft the Na-
tional Labor Relations Board."