253 N.L.R.B. 935 (N.L.R.B. 1980)

Central Transport, Inc.

National Labor Relations Board - Board DecisionsDec 23, 1980

253 N.L.R.B. 935 (N.L.R.B. 1980)

CENTRAL TRANSPORT. INC Central Transport, Inc. and Roger Groendyk. Case 7-CA- 16499 December 23, 1980 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On May 20, 1980, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, Respondent and the Charg- ing Party filed exceptions and supporting briefs. 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 conclusions of the Administrative Law Judge only to the extent consistent herewith. The issues are whether Respondent violated Sec- tion 8(a)(3) of the Act by constructively refusing to hire Charging Party Groendyk, and Section 8(a)(1) by interfering with Groendyk's protected activity of running for a union office.' The basis alleged for each of these violations is a statement by Respond- ent's vice president, Dame, to Groendyk that its president would order him discharged if so request- ed by the Union.2 Groendyk was an organizer for Local 406 from 1964 until January 1976. In Local 406's internal elections in 1975, Groendyk was the only success- ful candidate on his slate, winning a delegate posi- tion to the International Teamsters Union's 1976 convention. However, after the new officials were sworn in, Groendyk was laid off and prevented from attending the convention allegedly because he was not working in the craft at that time. The par- ties stipulated that Secretary-Treasurer Bob Bar- nett, whose slate was successful in Local 406's elections in 1975 and 1978, had animus toward Groendyk. On February 15, 1979,3 Groendyk spoke to Dame about employment. After Dame indicated that Groendyke would have no problem obtaining employment as an owner-operator with Respond- ent, Groendyk mentioned his problems with Local I Previously, the Charging Party alleged in Case 7-CB-4462 that Teamsters Local 406 violated Sec 8(b)2) of the Act h) unlawf ully influ- encing and causing Central Transport, Inc . not to hire him for dlscriml- natory reasons The Regional Director. after his investigation, declined to issue a complaint 2 Local 406, International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers (if America, hereinafter Local 40() ' All dates are in 979 unless otherwise indicated 406. 4 Dame responded that he did the hiring, not Local 406, and suggested that Groendyk could work for Respondent and belong to a different local. Dame also indicated that he would clear Groendyk's employment with Respondent's presi- dent, Maroun. On February 16, Groendyk put a downpayment on a truck. The next day, Groendyk received a comprehensive application packet from Respond- ent. 5 Between February 15 and 21, Dame contacted Local 406 and Trans-American, attempting to find out about Groendyk's problems with Local 406. Trans-American indicated that Groendyk's dis- charge had nothing to do with Local 406. Local 406 indicated that Secretary-Treasurer Barnett had had feelings toward Groendyk. Groendyk telephoned Dame on February 21. Dame told Groendyk about Trans-American's ver- sion of his discharge. Groendyk maintained that his troubles started when he tried to transfer into Local 406. Dame suggested that Groendyk stay in Local 527 or join a different local that had a con- tract with Respondent. Groendyk said he wanted to be in Local 406 so that he could get his "bene- fits." Dame responded that he had told Local 406 that he wanted to hire a truckdriver and thought that Groendyk was entitled to a job. However, Groendyk decided that "we just better wait and see what the hell Barnett's gonna say." In the con- versation Dame offered to arrange a meeting with Barnett or other Local 406 officials, a suggestion rejected by Groendyk. Groendyk also expressed concern that Barnett would tell Respondent Presi- dent Maroun to fire him. Dame said that Maroun did not want "to go to bed with" Barnett. Never- theless, Groendyk was still nervous about the pos- sibility of being discharged precipitously after obli- gating himself to make payments on a truck. At that point Dame replied, "You know [Maroun] says, o.k., I don't see any problems.... [M]aybe we're running too scared but like we said, you know, I wouldn't want ya to buy the truck, get goin', and then Barnett say . . . you tell [them] to get rid of Roger Groendyk. Well, [Maroun's] gonna say, hey, he's gotta go, because we got so- methin' more important, you know." Later in the 4 Since being laid off as a Lcal 406 organizer. Groendyk had sporadic employment as an organizer for Teamsters Local 527. and as an uovner- operator employee of rans-Americanl Freight l.ines, where he w'as a member of Local 527 Groendyk attributes his discharge from 'rans American in September 1978 to his attempt to transfer back into I.ocal 400, an allegation shich the Admili,stratic Iau Judge concluded was unsupported h the evidence 5 Applicants seriously considered 'ol templo ltlntll recei , a more conm- prehensive application packet than 85 9-) percent of :pplicants. u ho are unsuccessful and get ahhresiated" applicationis 253 NLRB No. 130 935 DE'CISI(ONS OF NATIONAL I.ABO()R RELATIONS B()ARI) same conversation, Dame said that he "would cer- tainly go at it calmly and say why can't I . . . go back to driving a truck?" On February 23 Dame told Groendyk that he had been unable to reach Barnett, and suggested that Groendyk commence employment with Re- spondent without letting Barnett know. However, within a week or two, Groendyk told Dame to forget it because he didn't "want to get out there . . .and get dumped." The Administrative Law Judge dismissed the 8(a)(3) allegation that Respondent constructively refused to hire Groendyk. We agree with his con- clusion and his reasoning that Respondent did not intend to cause Groendyk to cease seeking employ- ment. Rather, the evidence supports the Adminis- trative Law Judge's finding that Dame was trying to help Groendyk solve his problems with Barnett and was merely speaking realistically when he stated that President Maroun might order Groen- dyk discharged if so requested by Local 406. The Administrative Law Judge found, however, that Dame's remarks of late February violated Sec- tion 8(a)(1). In addition to stating on February 21 that Groendyk's job could be jeopardized if Bar- nett requested his discharge, Dame also told Groendyk on the last day of February that Barnett was unhappy with Groendyk. The Administrative Law Judge reasoned that, when considered in the context of Groendyk's potential investment in a truck, Dame's remarks indicated clear recognition that Groendyk ceased seeking employment because he feared Respondent would discharge him if re- quested to by Barnett. The Administrative Law Judge concluded that Dame's remarks interfered with, restrained, and coerced Groendyk in his pro- tected activity of having opposed Barnett in union matters. We cannot agree with this conclusion, par- ticularly in view of the Administrative Law Judge's finding that Dame was trying to help Groendyk solve his problems with Barnett. Thus, it was Groendyk-not Respondent-who repeatedly sparked discussion about Local 406. Respondent continually expressed its willingness to hire Groen- dyk, but Groendyk consistently objected, invoking the wrath of Barnett and Local 406. Perhaps in ex- asperation over Groendyk's negative attitude, Re- spondent, when pressed, acknowledged the exist- ence of the worst possible scenario: That a person not privy to their conversation (Barnett) may try to induce another person not privy to their conver- sation (Maroun) to order Dame to discharge Groendyk. Lacking in this hypothetical situation was any implication, let alone a threat, that Re- spondent would induce events leading to the sce- nario. To the contrary, Respondent had earlier sug- gested that Groendyk commence working while a member of a different local, and say nothing of the arrangement to Barnett. Further, after Dame's al- legedly improper remark, he emphasized that he would be calm and give it a try. Groendyk refused. In essence, Dame's statement, when considered in the context of all conversations between Dame and Groendyk, was mere hypothesizing or, at most, a prediction of an event over which he had no con- trol. Predictions and speculation fall within the ambit of Section 8(c), which states: The expressing of any views, argument, or opinion . . . shall not constitute or be evi- dence of an unfair labor practice . . . if such expression contains no threat of reprisal or force or promise of benefit. Here, Dame's remarks, both singularly and overall, including his weary acknowledgement of the worst possible scenario, are clearly within the purview of Section 8(c). See Southwesler Co., 111 NLRB 805 (1955). As previously noted, Respondent did not threaten to induce Groendyk's discharge but, in fact, explored ways to insure Groendyk's hire and continued employment.6 The subjective fear of dis- charge that may have existed in Groendyk's mind cannot suffice to establish a violation of Section 8(a)(l) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER JENKINS, dissenting: .- Contrary to my colleagues, I find that the record" evidence clearly established that Respondent vio- lated Section 8(a)(1) by interfering with Roger Groendyk's protected union activity and Section 8(a)(3) by constructively refusing to hire him. This case turns on precisely what Respondent's vice president, Nelson Dame, told job applicant Groendyk concerning his employment prospects in their telephone conversations of February 21 and 28, 1979. The Board's review task in this regard has been substantially alleviated since the record includes tape recordings of the conversations in ()Our dissentiig collealgue begs the question ashen he states that Re- spondent could have hired (iroenldk and then protected itself against Barnett's illegal request fr his discharge hb filing 8(h)(1)(A) and 8(h)(2) charges If (iroendyk hadt] cmrlmenced employment, and t/ his discharge ua;l then requcted illegallN Ililfalr labhor practice charges could have heen iled by him as I11l as by Responldentl In any event. as discussed. Respiondent repeatedly attempteld It hire (iroendyk hut (iroendyk re- fused to accept all ffers of ernphloment 93h CENTRAl TRANSPORT. INC. question made by Groendyk without Dame's knowledge. The Administrative Law Judge's Deci- sion incorporates verbatim transcripts of the two critical conversations. My colleagues draw exten- sively on the transcripts, concentrating on the Feb- ruary 21 conversation, in order to characterize Dame's comments to Groendyk as "mere hypothe- sizing" and a "worst possible scenerio" triggered by Groendyk's numerous anxiety-laden requests for reassurance. For the reasons given below, I cannot agree that Dame's statement that President Matty Maroun would discharge Groendyk upon the Union's re- quest is "speculation" protected under Section 8(c). I further cannot agree that Respondent be permit- ted to use either Groendyk's well-found anxiety about the stability of his future job tenure or its own reluctance to respond realistically to Groen- dyk's repeated importunings as defenses against the 8(a)(1) and (3) allegations. It is undisputed that Local 406's Secretary-Trea- surer Bob Barnett was hostile toward Groendyk because of Groendyk's opposition to him in the last campaign for union office. When Groendyk first sought employment with Respondent he told Hiring Officer Dame of his troubles with Barnett. Dame indicated that he was prepared to hire Groendyk even over Barnett's opposition. Howev- er, Dame went on in the February 21 conversation to discuss frankly the relationship between Barnett and Maroun, particularly as to the effective power wielded by Barnett over certain of Maroun's per- sonnel decisions. Dame told Groendyk that Maroun did not like Barnett but nevertheless worked to give Barnett the contrary impression because "we got a good- sized barn here now, and [Barnett] throws his weight around, and [Maroun] lets him." Dame con- tinued by saying that Maroun did not want to sur- render his management prerogatives to Barnett; i.e., "go to bed with" him. The passage quoted by my colleagues, and relied upon as evidence of "mere hypothesizing," then follows. Therein Dame insisted that he did not want to see Groendyk buy a truck and then have Barnett and Maroun work out a deal whereby Maroun would ask Dame to "get rid" of Groendyk. If the Groendyk-Dame conversations had gone no further I might perhaps be willing to agree that Dame was only constructing a hypothetical situa- tion whereby, if requested, Maroun might order Groendyk's discharge. However, the entire conver- sation of February 21, taken together with the later conversation at the end of February, makes it quite clear that the conditions viewed by my colleagues as contingencies were known to both Dame and Groendyk as certainties. Dame continued the Feb- ruary 21 conversation by emphasizing to Groendyk that Maroun had acceded in the past to other simi- lar personnel demands by Barnett, choosing to maintain a working relationship with Barnett; i.e., to "lose the battle and win the war." Dame con- cluded the conversation by suggesting that if Groendyk were to pursue the matter over Barnett's opposition his family might be "jeopardized." Dame even raised the spectre of a "Jimmy Hoffa- type of thing" occurring. Groendyk and Dame spoke again on February 28. By this time Dame had contacted Barnett di- rectly and confirmed for himself the depth of Bar- nett's animosity toward Groendyk. When Dame told Groendyk that Barnett was "not in favor" of Groendyk's working for Respondent, Groendyk fi- nally faced reality, understood the futility of pursu- ing employment with Respondent, and withdrew his application. Dame then went so far as to sug- gest that Barnett deserved credit for "saying no now" rather than waiting until Groendyk had made a substantial financial investment in a new truck. Thus the record as a whole reveals plainly that Groendyk and Dame knew that Barnett would object strenuously to Groendyk's employment by Respondent, that Maroun had a history of giving in to Barnett on similar occasions in the past, and that Maroun would do so again in this case. My col- leagues' attempts to find "mere" hypothetical lan- guage on Dame's part is labored. They strain credulity in reading Dame as saying only that, in effect, i Barnett sought Groendyk's dismissal, then mabe Maroun might acquiesce. They further find only a possibility that Groendyk had a "subjective" fear of discharge. On the contrary, particularly given Dame's reference to a "Jimmy Hoffa-type of thing," Groendyk reasonably feared that his suc- cessful acquisition of employment would be a futile and perhaps costly act. Groendyk was told as di- rectly as I can imagine that Barnett would object and that Maround would give in, albeit reluctantly, for pragmatic business reasons. I would find, therefore, that Respondent violated Section 8(a)(1) by interfering with Groendyk's pro- tected activity of opposing Barnett in internal union matters. Further, Dame clearly recognized that he had caused Groendyk to anticipate a cer- tain discharge when Barnett requested it. The well- founded sense of futility induced in Groendyk by Dame which led him to withdraw his application constitutes a constructive refusal to hire and thus a violation of Section 8(a)(3). A respondent is held to intend the foreseeable consequences of its acts. N.L.R.R. v. Erie Resistor Corp., 373 U.S. 221 1)37 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1963), and N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21 (1964). To promise to hire Groendyk and simultaneously tell him that he would be immedi- ately discharged is to anticipate reasonably that Groendyk would not particpate any further in Re- spondent's employment charade.It is clear that Dame truly sympathized with Groendyk and sin- cerely wished to employ him. I therefore might be inclined to join my colleagues in their evident em- pathy for Respondent in its preceived dilemma- either violate the Act or suffer the consequences of Barnett's retaliation. I suggest, however, that Re- spondent had another option. It could have hired Groendyk and then protected itself against Bar- nett's illegal request for his discharge by filing 8(b)(l)(A) and 8(b)(2) charges. Finally, I cannot agree with that portion of my colleagues' analysis which, in effect, blames the victim for the discrimination he has suffered. Dame may well not have told Groendyk explicitly of the discharge awaiting him had Groendyk not brought up the subject and pressed repeatedly for assur- ances of Respondent's good faith. However, in my view, the Board is constrained by Section 8(a)(l) and (3) of the Act to consider only the actions and intentions of a respondent and not to excuse viola- tions committed in "exasperation" over an employ- ee's well-founded anxiety and insecurity. Accord- ingly, I would affirm the Administrative Law Judge's finding of an 8(a)(l) violation and reverse his dismissal of the 8(a)(3) allegation. DECISION SIAI I MI.NT O THE CASE JIRRY B. SrONL, Administrative Law Judge: This pro- ceeding, under Section 10(b) of the National Labor Rela- tions Act, as amended, was heard pursuant to due notice on February 6, 1980, at Grand Rapids, Michigan. The charge was filed on June 20, 1979. The complaint in this matter was issued on July 18, 1979. The issues concern whether Respondent, on or about February 19, 1979, and thereafter, constructively refused to hire Roger Groendyk or caused Groendyk not to be hired because of his lack of clearance from Union Secretary-Treasurer Robert Barnett. All parties were afforded full opportunity to partici- pate in the proceeding. Briefs have been filed by all par- ties and have been considered. Upon the entire record in the case and from my obser- vation of witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDIENT' Central Transport, Inc., is, and has been at all times material herein, a corporation duly organized under, and The facts herein are based upon the pleadings and admissions therein existing by virtue of, the laws of the State of Michigan. At all times material herein, Respondent has maintained its principal office and place of business at 34200 Mound in the City of Sterling Heights and State of Michigan. Respondent maintains other installations in the State of Michigan. Respondent is, and has been at all times mate- rial herein, engaged in the interstate and intrastate trans- portation of goods and materials. During the year ending 1978, which period is repre- sentative of its operations during all times material herein, Respondent, in the course and conduct of its business operations, derived revenues in excess of $50,000 from the transportation of goods and materials from locations within the State of Michigan directly to points outside that State. As conceded by Respondent and based upon the fore- going, it is concluded and found that Respondent is, and has been at all times material herein, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 1n. llE LABOR OR(;ANIZA IION INVOLV. ED 2 Local 406, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is, and has been at all times ma- terial herein, a labor organization within the meaning of Section 2(5) of the Act. II1. HE UNt-AIR lABOR PRACTICES A. Preliminary Issues Supervisory Status:' At all times material herein, Nelson Dame occupied the position of terminal manager at Respondent's Grand Rapids facility and has been and is now a supervisor of Respondent, within the meaning of Section 2(11) of the Act, and its agent. B. Introduction Roger Groendyk became a member of Teamsters l.ocal 406 in 1952. Thereafter, in 1964, Groendyk became employed as an organizer on the staff of Local 406 and worked in such position until January 1, 1976. During such period of time, Groendyk "organized" in excess of 3,000 members into Local 406. In Local 406's internal elections in the fall of 1975, Groendyk ran on the slate of the incumbent secretary- treasurer of Local 406, James L. Kelly. Groendyk won election to a position of delegate to the 1976 convention of the International Teamsters Union. Excepting for Groendyk, Kelly's slate lost in such elections. When the new union officials were sworn in on Janu- ary 1, 1976, Bob Barnett, who had been elected as secre- tary-treasurer, told Groendyk in effect that he was going to make some changes, that there was no need for an or- ganizer, and that he was laid off. Although Groendyk had won election as a delegate to the 1976 International I he facts are based upon the pleadings and admissions therein. :' The facts are based upon the pleadings and admissions therein Dame also testified to the effect that he was general manager and vice president and was in charge of the furniture division. 938 CENTRAL TRANSPORT, INC. Teamsters convention, he was told, apparently by Local 406 officials, that he did not have the right to go to the convention as a delegate because he was not working in the craft.4 In February or March 1976, after termination as an or- ganizer for Local 406, Groendyk went to the union hall to make contributions to his pension and health and wel- fare plans. On such occasion, Groendyk spoke to Busi- ness Agents Bob Anderson and Ray Wilder. Apparently on this occasion or at another time in early 1976, President Carl Schoby, who had ran on Barnett's slate in the internal union election, came in and spoke to Anderson and Wilder shortly after Groendyk had left Anderson's office. What occurred is revealed by the fol- lowing credited excerpts from Anderson's testimony. Q. Had he run on Barnett's slate? A. Yes, he had. And he came over to the door- way after Roger left and he said what are you talk- ing to that bastard for. Q. And your answer was? A. My answer to him was, I stated to him em- phatically that I had been working for those guys about five weeks or four weeks or so and they were watchdogging me like crazy and my answer to him was, "[L]et's get one thing straight, Roger Groen- dyk is my friend and I will talk to him any god- damn time I want to. If you don't like it, just say so." Q. What did Wilder say? A. He kind of glared at me and he turned to look at Wilder and Wilder said, "That goes for me too." Q. What did Schoby do after that? A. He stomped out of the office and he didn't go into his office, and I could look at that time from my office window and look down the ramp or runway between-down where Barnett's office was, and he went into Barnett's office and the door was shut and that was the last I saw of him. At a Local 406 staff meeting that occurred approxi- mately a week or two after the foregoing conversation Schoby had with Anderson and Wilder, Barnett made remarks as is revealed by the following credited excerpts from Anderson's testimony. Q. And did Barnett make any statements about Roger Groendyk at this time? A. We had a long meeting that day, probably an hour or so. At the very tail end, Barnett hadn't said hardly anything during the meeting, and finally at the very end, Barnett made a remark, [Y]ou guys got to remember, we've got some enemies out here on the street yet and if you let them get in a barn and they stay over 30 days, you are saddled with them." Q. Okay. A. And I looked right at him and I didn't know what the other guys were doing and he was looking Member Hotalian, who had ran on Barnett's slate, attended the 1976 International Teamsters convention as a delegate Member Wiley (who had run on Kelly's slate), like Groendyk, did not attend the 1976 Internla- tional Teamsters convention. at me, but he didn't say nothing. And then Wilder made a remark, "[A]re you talking about Groen- dyk," and he said yes. Q. Barnett said yes? A. Yes. Q. Now, when he said on the street and getting into a barn, did that mean being hired at a trucking company? A. At a company that would cause trouble. Groendyk, following his termination as organizer for Local 406 (Grand Rapids) t.n January 1, 1976, was un- employed until around January or February, 1977. At such time, Groendyk became employed by Teamsters Local 527 (Muskegon). Such employment was apparent- ly as an organizer.5 Around September or October 1977, Local 527 laid Groendyk off for economic reasons. Around September or October 1977, Groendyk pur- chased a truck from Jim Kamps of the Freightliner Com- pany. Groendyk then became employed as an owner-op- erator employee of Trans-American Freight Lines and worked for said employer until he was terminated around September 1978. While at Trans-American Freight Lines, Groendyk continued to be a member of Local 527 of the Teamsters. The tapes of conversations between Groendyk and Dame and others indicate that Groendyk in such conversations referred to his troubles starting at Trans-American Freight Lines when he at- tempted to transfer into Local 406. 1 would further note that the statements by Groendyk on such tapes create some uncertainty as to whether the alleged transfer from Local 527 was to be to Local 486 or Local 406. In sum, the evidence is insufficient to reveal that Groendyk's troubles with Trans-American were caused by Local 406 of the Teamsters. Following his termination at Trans-American, Groen- dyk did some trip-leasing for other people, and then sold his equipment (tractor and trailer) through Kamps at the Freightliner Company. Apparently around this time and until sometime in November 1978, Groendyk aided in a union campaign connected with the internal election of officers of Local 406. Thus, Groendyk was active with a slate called the Teamsters Reform Team for approxi- mately a month. The Teamsters Reform Team slate was beaten by the Barnett slate in Local 406 elections in No- vember 1978. The parties stipulated in this case that Barnett had animus toward Groendyk. C. The Seeking of Employment With Central Transport, Inc., Events Circa Mid-February to Circa March 1. 19796 Around Thursday, February 15, 1979, Groendyk went to Kamps' Freightliner office. Kamps asked Groendyk 5 Sometime after Groendyk started working as an organizer for Locxal 527 of the Teamsters. Dame, general manager and vice president of Cen- tral Transport, lilc, was in the office of Local 406's secretar)-treasurer and heard Lo-al President Schoby ay in effect that they had hired that son of a b--"(meaning Groendyk) and that Barnett had better do some- thing about it The critical Cvents concerning the issues i this case occurred in a time period of approximately 2 weeks Thus, the events commenced Conrinued 939 I) ECISIONS ()F NATIONAL LA13OR RELATIONS ()OARI) when he was going to buy a truck and go to work. Groendyk indicated that he would like to do so but did not know where to go. Kamps indicated that Nelson Dame at Central Transport, Inc., was hiring. Kamps sug- gested that a call be made to Dame and made a tele- phone call to Dame. Kamps told Dame that Groendyk was looking for a job. Dame told Kamps that he was hiring, that he should send Groendyk to see him. Apparently on February 15, 1979, Groendyk went to see Dame at Central Transport, Groendyk and Dame discussed the employment of Groendyk, the type of equipment (tractor and trailer) that Groendyk would need, and the equipment available through Kamps. The facts are clear that Dame indicated to Groendyk that there would be no problem in Groendyk's securing em- ployment with Central Transport, Inc. It was also clear that the physical examinations and examination or inspec- tion of equipment were envisioned as presenting no prob- lem. Groendyk then apparently brought up the question of Groendyk's alleged problem with Local 406 as revealed by the following excerpts from Groendyk's testimonly. 7 Q. I assume you started with an introduction. A. I said, "Hi, how are you," and one word led to another and we talked about the truck and the type of truck it would take to do the job and I said, "Well, Jim had some trucks up there that we could look into," and I wanted to get something that would do the job for Central Transport and also do a good job for me. We talked about that, and then we got inlto a dis- cussion of my problem with the local union and he said yes, he was aware of that because at the time, he was in Barnett's office one day, I guess, when I went to work for the local in Muskegon and Nelson said that Karl came into Bob's office and said, "Hey, they hired that son of a b- over in Muske- gon, You better do something about that?" So Nelson was aware of my problem in the Local. Q. Okay, then what else did Nelson say to you or what did you say to Nelson; did you explain the problem you had with 406? A. Yes. Q. Then what happened, what did Nelson say'? A. He said, "I do the hiring here and nobody tells me who I can hire and who I can't hire," and I when Grliendyk spoke ito Jim Kamps (if Freightliler and were CseI.lill). conclluded just prior to a collversation that tjioedk hadt witli Karilps after he in effect had withdrawn frorm seeking cmploymenll( ith ( ctilral Transplrt, Kamps creidibs eslimated the time period fr such cunts ils being around 2 weeks i duration. (;roend3 k and otiers esseiiall placed the corlmellcelTllnt f einellt ar:ulid F:ebruary 14 r 5. 1'17q Karmps placed the dae ,rf receilpt of a check ftlr thie lii vl pa)ll cll ion a truck as February 1, 1479. Accordingly, ctnsiderring lth litrcg tlilg. tie indication on the tapes of corivcrsaiions of reference to da\s and .eits. and witnesses' leslimnony as it, eCLCill, I find that tihe initial conselrsattio betweenl roenldyk ad Kalilps toccurred on February 15. 179t The timing orf ithr evenll i determlined by prbahility aind ci,,sistlncy if evidence. The sequenlce < ecnts appears clear Slight variance i exact dates .u.uld not adversely affcL i the results of the filndigs hercin ' Edited but meaning iinol changetd said, "Well, Nelson, I appreciate that. I finally found somebody that will go to the wall." Q. And Nelson was ready to hire you? A. He said yes, he would, if I came up with the qualifications. Right away, he gave me the packet. Q. He referred to the DOT qualifications? A. I think it had a physical in there, you have a regular packet that you give most of your employ- ees, I think. And he gave me that packet. Q. Okay. And Mr. Dame himself gave you that, is that correct? A. No, sir, I picked it up there at his office. Q. So it was not given to you right at that time? A. No. After Groendyk had brought up the question of al- leged problems with Local 406 of the Teamsters, at some place in the discussion, Danme told Groendyk that he did not care what local Groendyk worked out of; that Groendyk could possibly work for the Company out of Jamestown, New York, and thus in effect be away from Local 406. Later in the discussion, Dame indicated that he would clear the matter of hiring Groendyk with the owner of Central Transport, Matty Maroun.8 Dame also told Groendyk that he would call Barnett, secretary-trea- surer of Local 406, and get his opinion about Groendyk and his feelings about Groendyk's going to work for Central Transport, Inc.' Dame told Groendyk that he would have such a discussion with Barnett in order to avoid repercussions and for Groendyk's own good and welfare. O()n Friday, February 16. 1979, Groendyk went back to Kamps' office at Freightliner and put a downpayment on a truck. The facts are confused as to whether the down- payment was made on a Kenworth truck, a '74 Peterbilt truck, or in general effect on one or the other. Groendyk and Kamps testified in effect that the downpayment was on a Kenworth truck. The tape and transcript of the February 21, 1979, telephone conversation indicates that Groendyk told Dame that the Kenworth truck had been sold and that he had made a downpayment on a Peterbilt truck. The price of either of these trucks appears to have been in the neighborhood of 23,(XX) to $24,000 plus or minus a few hundred dollars. On Saturday, February 17, 1979, Groendyk went to Dame's office at Central Transport, Inc. On such occa- sion, Don Fehensfeld, terminal manager for the furniture division of Central Transport, Inc., spoke to him about an application packet which was given to Groendyk at the time."' " hc spelling of NMaroun's namle arics, at tines referred to as (irierllyk initially testified itl facs il accordance v ith thile facts fullnd I atr. (iroetndyk testified iIl ffecl tha l)anic idicated that he w uld clear thic rlatter 'with Harrlett ( oniidcring tie t o ality if the facts, ] ;a ill i persuaded that );ile slate l ilt ic hA ould clear t1Le matt er vith tIarnct Rather. I am persua;deid that (roendyk' iitial teslimoiny is moire reliahle ,On such point Althiough Dame denied that he sought clearance tJril I rtarl(l, t e tapes revceal that D)anlle did try i~ tinritacl itaritl after the inltial dlscus with witil (roentl) k. "' or ahlt t 5S to 9() pcicclti oI the jb applicant', tIhe .lmparly gi es such apphcalits all ahibeiated applicatlion packet csisting f scveral Continued 940 CENTRAL TRANSPORT, IN(' Considering the tapes and transcripts of the conversa- tion between Dame and Groendyk on February 21, 1979, and the testimony of Kamps about conversations he had with Dame, it appeared at first that the General Counsel was trying to establish that Dame had second thoughts about hiring Groendyk and, with Kamps' help, was trying to create a problem for Giroendyk in obtaining a truck. It is sufficient to say that the timing of events as for Kamps' and Dame's conversations is not clearly re- vealed, and the facts do not establish that Dame, with Kamps' help, attempted to fix it so that Groendyk could not purchase a truck. The facts are clear that between February 15 and Feb- ruary 21, 979, Dame attempted to contact Barnett and was unable to do so. It is also clear, however, that Dame spoke to an assistant of Barnett who indicated that Bar- nett had feelings against Groendyk. Dame also contacted Slott of Trans-American Freight Lines and apparently tried to ascertain whether Local 406 had tried to get Trans-American to get rid of Groendyk. On or about February 21, 1979, Groendyk telephoned Vice President Dame." On such occasion, Groendyk, without Dame's knowledge, tape-recorded the ensuing telephone conversation. In the conversation on February 21, 1979, Groendyk told Dame that he had run into a problem, that the Ken- worth truck had been sold, but that Kamps was getting a '74 Peterbilt. Dame told Groendyk that he understood that two people were looking at such a truck, Groend k and a man named Allen Timmer. Groendyk then told Dame that he already had his money down on the Peter- bilt truck. At this point, Dame made the following stat.- ment to Groendyk: What, uh, Rog, what do you think about this whole thing? I been really thinkin' about this. 1, I personally, you know, uh, did you get into 406, uh. when you were workin' from the other place Trans- American? Groendyk told Dame that he had not gotten into Local 406; that he belonged to Local 527 of the Team- sters while at Trans-American. Dame proceeded to tell Groendyk that he had talked to Len Slott (of Trans- American), that Slott had expressed the opinion that the Union had not forced the issue of Groendyk's termina- tion, that Groendyk had been pretty fussy about runs, that Groendyk only wanted to make certain runs, and that this was the reason Groendyk was let go. Dame sid that Slott had stated that he was getting static from the general office because of hiring a business agent's person. Groendyk stated in effect that this was not true, that Slott was trying to protect his general office and vice sheets Appalrently for olther applicants, normally to he ,considerrd ll a more serious a:l. the Companly has a full application packet contl.alilg about 20 pages :ehtisfeld gac (iroendk the more omplete applica- tion packet ' Considering the credited facts to reveal that the critical evenlts andi conversations helt. cen Danmc and (iroendyk occurred ilhin a 2 eck period, the Intality of the ftacts IIhe obvious, squence o the concrsa- tions. and the mltion on tihe ape the tratlsrlpilOll of '"Vedni-d'd.," I am persuaded that the consecrs.atlll hctetel l ):li a;ld (rodndk. i d veated the tapes and transcrip t s . ccurred on VA vilesrd; . I hll;iir, 21. 1979 president, that Slott and Slott's son had told him of state- ments made by Landish, apparently vice president of Trans-American. that this was where Groendyk's trou- bles started, and that trouble started when he tried to transfer from Local 527 to I.ocal 406. Dame asked Groendyk why he had tried to transfer into local 406. Groendyk replied in effect that one of the employees at Trans-American was a member of Local 406)h and that he had tried to transfer into Local 406 in order to get his "benefits." Dame then asked Groendyk why he could not stay in Local 527. Groen- dyk indicated that he could and asked in effect if Re- spondent had a contract with Local 527. Dame indicated that Respondent had a contract with Local 527, and at other places, and Respondent did not care in effect where Grocndyk belonged, and asked in effect whether Groendyk could not belong to Local 299. Groendyk told Dame that his only problem was with Barnett. Dame told Groendyk that he had talked to Roby Smith (of local 406) about Groendyk's problem as re- vealed by the following excerpts from the transcript of the February 21, 1974. telephone conversation betwcci Dame and Groendyk :' Dame: And I told-I asked for Bob, and, you know. he wasn't there. I told him what I wanted. Jesus Christ, I says, hey, you know, don't Jesus Christ. I says, goddamn it. you guys all have to make a f--k-' livin', just like everybody else If you make a mistake. you're sure. Bob Barnett for one would be right cryin' to our boss for a fk-' job, you know? Groendyk: Um-hum Dame: This isn't right. I don't care how. uh, you can't hold a grudge that long. Groendyk: Utm-hu. What did Roby say, then? Dame: Hie says, well, I'll have to tell Bob, I'll hafta talk to Bob about it, if you want me to. You have Bob call me. He's in Chicago, I guess, this week. Groendyk: Uh-huh. But Roby, did Roby say that they didn't want me in there, too? Dame: No, he just said, he just, he calls Bob the old man, he says, you know how the old man feels about that. I says, I don't give a shit how the old man feels, I want to hire a truck driver and I said I think he's entitled to a job like everyone else. So. ,.e'll see Awhat happens. F:ollowing the above remarks Dame and Groend k continued their conversation as revealed in part bh the following excerpts from the transcript of the February 21, 1979, con, ersation: Groendyk: Well, I'll tell ya what. I think we just better wait and see what the hell Barnett's gonna say. Dame: ()h, yeah. I, I, I think so, too. He'll be back here, what, today's Wednesday--Thursday or Friday. 2 dlnen hbut mn ittllg int ch.lg-d 941 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Groendyk: Because he can stop me wherever he wants to, right? Dame: Well, I don't know. Shit, I never was a business agent. Why could he be able to do that? Groendyk: Well, if he tells you, if he tells you not to hire me, what are you gonna do? Dame: Well, I would hire ya, anyway. But then I wouldn't want to put you through the burden of, uh, you know, I don't know what you're gonna run into down the road somewheres, you know, because of it, but he could not tell me whether to hire you or not, there's no goddam such a thing. Groendyk: Well, this is what he's attempting to do, and this is what he done at Trans-American. Dame: No, I don't think it was that bad, to be honest with ya. Groendyk: No, I don't think it was that bad, either, and I had good rapport with Len. Dame: See, Len's tellin' me one story, and you're tellin' me another there, see. Groendyk: Urn-hum. Dame: Really. Groendyk and Dame continued to discuss Groendyk's alleged problems at Trans-American and with Barnett. In such conversation, Dame asked Groendyk what was the problem with Barnett and asked why he could not sit down and talk with Barnett. Groendyk told Dame in effect that he could not talk with Barnett; that Barnett was paranoid, and ranted and raved. Dame agreed in effect and stated that Barnett and Maroun were not get- ting along. Groendyk then indicated in a complaining way that he did not understand why Barnett and others were causing him problems. Dame indicated a sympa- thetic understanding and expressed that some of the union officials should stick up for Groendyk. Dame ques- tioned why Groendyk could not get help from some union officials and suggested in effect argument that Re- spondent was willing to hire Groendyk. Dame continued to express a willingness to help Groendyk get employed. Dame, as an example, said: Dame: Well, I don't know who to go to, who to say, what the hell, who draws the line here. You know, the guy doesn't wanna collect unemploy- ment, he doesn't wanna be a, you know, on welfare, and all this type of thing, he wants to work, and yet the union that he was a member of won't accept him and what did he do so wrong that, uh, they won't accept him as a member-payer, you know, paying his dues. Groendyk: Urn-hum. Dame: It would just seem to me that somebody would say, hey, you back off. Dame then suggested arranging a meeting with Bar- nett. There followed a discussion to the effect that Bar- nett would later dispute what actually was said or done. A discussion ensued as to Dame's problems with Barnett and as to in effect how Barnett was able to get Maroun to overrule Dame on occasions. Following this, the dis- cussion centered upon Barnett's and Maroun's relation- ship as revealed by the following excerpts from tran- scripts of the February 21, 1979, Dame-Groendyk tele- phone conversation: Groendyk: Yeah, don't you kinda hate to have, uh, to [sit] down really and talk with that man, and then have him turn it around on ya in front of Matty? Dame: Oh, yeah. Groendyk: Huh? Dame: Sure. Groendyk: And he's done that to ya. Dame: Oh, yeah. Groendyk: He's lied right to your face. Dame: Oh, yeah. Groendyk: And then he makes you look like a real ass. Dame: Right. Groendyk: And I'm sure that Matty understands that. Dame: Oh, yeah. Groendyk: And I can't understand why Matty would really be involved that deep with Bob Bar- nett. Dame: Well, he isn't, see; the only thing, the only reason he is, is because he has to be, you know that. Groendyk: Urn-hum. Dame: Shit, he don't like 'im, you know, Bob thinks he does, but the only reason he does is be- cause we gotta good-sized barn here now, and Bob throws his weight around, and Matty lets 'im, you know. Groendyk: Um-hum. Dame: So that he can win some arguments, is all. Groendyk: Urn-hum. Dame: He's certainly not his, he doesn't want to go to bed with 'im, I'll guarantee ya that. Groendyk: Well, I, I'm sure of that, I think he's Dame: 'Cause Matty okayed this thing, I'm not worried about Matty. You know Matty says, O.K., I don't see any problems. You know? But, like we said, uh, maybe we're running too scared, but like we said, you know, I wouldn't want ya to buy the truck, get goin', and then Barnett say come up with some big f-k-' deal where it's gonna mean a lot more to Matty to, to come out on the deal that they got cookin' better, you know, so they're not gonna, so Bob Barnett says, O.K., you tell Nels and them to get rid of Roger Groendyk. Well, Matty's gonna say, hey, he's gotta go, because we got somethin' more important, you know? Groendyk: Urn-hum. Dame: And that's the way things go, you know that. Groendyk: Yeah. Dame: You know. Groendyk: Yeah. Dame: You know. Groendyk: I'm sure. . .. Dame: And I've seen us put guys back to work who had no business comin' back to work. Groendyk: Yep. 942 CENTRAL TRANSPORT, INC. Dame: An' Barnett knew it, and Matty knew it, but Matty let 'im go back to work, because of something else that was more important that he wanted to get settled that would, you know, save him a lot more money. Groendyk: Right. Dame: You know, and this is the way it goes. A lot of our terminal managers don't realize it, they say, Jesus Christ, why did we put that prick back, Matty's, you know . . . . Groendyk: C'mon in! Dame: . . . lettin' me down, and all that. Oh. Groendyk: Well, Matty's a business man. Dame: Yeah, right. Groendyk: And he's got an operation that he's runnin', and, uh, an' he's doin' it, you know? What the hell. You did it, look. Let's be real honest. Where you started and how you built that damned thing. Dame: Matty'd rather lose the battle and win the war, and that's exactly the way some of these cases go. Groendyk: Um-hum. Dame: But, boy, I tell you, if it was me, I wouldn't wanna get your family jeopardized or any- thing, but they're being jeopardized now to this extent, I wouldn't wanna, you know, have a Jimmy Hoffa-type of thing, but I would certainly go at it calmly and say why can't I, you know, uh, go back to driving a truck? On or about February 23, 1979, Groendyk had another telephone conversation with Dame. 3 In this conversa- tion Dame told Groendyk that Barnett was out of town, that he had been unable to reach him. Groendyk suggest- ed his employment by the Respondent in Muskegon. Dame indicated that this would be no problem. Dame suggested that Groendyk proceed on such a basis and just keep his mouth shut. Groendyk asked if he had to belong to Local 406 in order to work. Dame told Groen- dyk in effect that he did not have to belong to Local 406. The substance of the conversation continued in the vein that Groendyk could work at Muskegon, but that it would be best not to let Barnett know what he was doing. At some later day, perhaps on the weekend of Febru- ary 24 or 25, 1979, or at least in the first part of the next week, Groendyk spoke to Rosencrantz, secretary-treasur- er of Teamsters Local 527 in Muskegon. From this con- versation, Groendyk learned that Local 527 did not have a contract with the furniture division of Respondent, and that, in order to get his benefits, Respondent would have to sign a contract with Local 527.14 1a The transcript of this conversation refers to Groendyk's and Kamps' having planned to see Dame the next day, the upcoming weekend, and the upcoming Monday. It thus appears that the conversation occurred on a Friday or Saturday and more probably on a Friday. Considering the 2- week period encompassing the events, I find the facts as set forth. A dif- ferent finding as to date but in the same sequence of events would not affect the overall results. "4 It appears that Local 527 may have had a contract with Respondent covering "special commodities," and that furniture might be construed to be a special commodity. It appears clear, however, that Rosencrantz be. Apparently during the last several days of February 1979, or first days of March, 1979, Groendyk had an- other telephone conversation with Dame as is revealed by the following excerpts of the transcriptions of such conversation: Receptionist: Furniture Division. Groendyk: Ah, yes. Nelson Dame, please. Receptionist: He's on the other line. You'll have to hold, please. Groendyk: O.K. Dame: Barnett Groendyk: Yeah. Dame: Yeah. He's not too happy with ya. Groendyk: No? Dame: No. He says you really badmouthed it, uh, badmouthed him in the last election. Groendyk: Uh-huh. Dame: And I says, well, I says, you gotta forgive and forget. I says you know you're goin' back ten years, I says. I am like hell, he says. In this last election, he said, he really badmouthed us. Groenddyk: Uh-huh. Dame: He doesn't-he's not in favor of it, I'll be very honest with you. Groendyk: Well, then, I think we just better forget it, then, Nels, because I don't want to get out there in 30 days and get dumped. Dame: No, and I don't want you too, either. Groendyk: No, and I appreciate the fact that- hey, all you've done for me here, and I know that if it was strictly up to you, that you would do it. Dame: I even told him, I says hey, you know, Matty, O.K., then, I say we see no problems at all. Well, in fact, he didn't-you know he says come on over, it's hard to talk on the phone, come on over here, he says, which I haven't gone over there yet. Groendyk: Uhm-hum. But I don't want him to set me up out there with-hey no twenty-two thou- sand bucks and then, bang. Dame: Yeah, you gotta give 'im credit for that, he's saying no now, you know. Groendyk: Yeah. Dame: Instead of saying let 'im go ahead and uhm-hum. Groendyk: O.K. Well, Nels, hey, I appreciate it, O.K.? Dame: If he cools down, why, go over there. I'm gonna go for a ride over there. Groendyk: Yeah. Dame: I gotta go over there, anyway. Groendyk: Yeah. Dame: See if I can talk 'im out of it. Groendyk: Well, hey, uh, under those conditions it probably, you know, he could let it go for 30 days, 60 days, and all of a sudden, bang too, you know? Dame: Well, I don't think that's fair, and I told him so. lieved a signed contract with the furniture division of Respondent was necessary in order that Groendyk have benefits. 943 I):CISI()NS ()OF NAII()NAL I.ABO()R RLAII()NS BO()ARD Groendyk: Uhm-hum. Well, he's paranoid, you know. And ya can't trust him. You know he lies. Dame: But you must've kind of blackballed him or did somethin', too. Groendyk: No, I didn't, uh, 1, I only, uhh, I only campaigned and, uh, I- Dame: Uh-huh. Groendyk: You know. I don't, uh, I don't believe in this double standard, and that's what I told, and I said, and I said that, and I maintain it, Nelson. Right is right, and wrong is nobody, you know'! And you've got to hbend either way. Dame: Yeah. Groendyk: The employer isn't always wrong, either, you know? And you get a bunch- I)ame: What are ya gonna do for a living, though? Groendyk: Hey, Nels, I don't really know. But I'm gonna do somethin'. I'm gonna do somethin'. Dame: Yeah, but that leaves you out of the union and a pension and all that if you . . .. Groendyk: Well, I'm gonna go see Mr. Holmes. I'm gonna go, uh. I might even just go to Washing- ton and talk to Mr. Fitzsimmons. Dame: I think you should get it straightened out, Roger. Groendyk: I'm gonna get it straightened out, Nels. Dame: That's not fair. Groendyk: No, it's not. It's not .... Dame: I'm gonna go over there and talk to him in about fifteen minutes. Groendyk: Uh-huh. O.K., Nelson, well, hey, once again . . . . Dame: If I hear anymore, I'll let ya know. Groendyk: I wanna tell ya one thing: You're one hell of a man, if there's ever anything I can do for ya, or ever say for ya on the street just don't hesi- tate to call me. Dame: Okeydoke. Groendyk: Because I still gotta few friends in this town, believe me. Dame: Yeah, all right, Roger. Groendyk: O.K., thanks. Dame: Bye. Groendyk: Bye. D. Contentions and Conclusions The General Counsel's complaint and contentions set in issue (1) whether statements by Vice President Dame to the effect that if Barnett of the Union (Local 406 of the Teamsters) requested Groendyk's discharge ow Maroun would direct him to discharge Groendyk, cou- pled with a lack of clearance from Barnett, constituted conduct which interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act, and (2) whether the same statements under the same circum- stances constituted a constructive refusal to hire Groen- dyk in violation of Section 8(a)(3) of the Act. The Gen- eral Counsel and the Charging Party mainly argue that the above-referred to statements, in the context of the ex- isting circumstances coupled with Groendyk's seeking of employment and later abandonment of seeking employ- ment, constituted a constructive refusal by Respondent to hire Ciroendyk. Respondent's answer denied in effect the complaint allegation that Respondent's agent, Dame, had told Groendyk that his continued employment, once hired by Respondent, was contingent upon the wishes of Union Secretary-Treasurer Robert Barnett. Respondent contends mainly that it has not constructively refused to hire Groendyk. In large degree, the parties in their briefs essentially argue only the question of whether there has been a con- structive refusal to hire. The pleadings and the presenta- tior of evidence as a whole reveal, however, that the liti- gation of the issues were on a broader basis. Considering the totality of the facts, I am not persuad- ed that the facts reveal that Respondent has construc- tively refused to hire Groendyk. Although the parties have not presented cases of instances wherein there have been constructive refusals to hire employees, I am per- suaded that there can be occasions of constructive refus- als to hire. The Board has held, as an example, that em- ployees do not have to make a futile application for em- ployment before they can be found to have been discri- mrinatorily denied employment. Were the facts in the in- stant case to warrant a finding that Respondent, by the making of statements to Groendyk, intended to persuade Groendyk to withdraw from seeking employment, I am persuaded that a finding of constructive refusal to hire should be made. The facts in this case offer some slight speculation that Respondent might have attempted to dissuade Grocnllyk from seeking employment. The over- all facts, however, reveal, in my opinion, that Dame was trying to help Groendyk work out a solution for his problems with Barnett, and that Dame revealed an inter- est in Groendyk's securing employment and was merely speaking in what both he and Groendyk appeared to be- lieve were terms of realism. Since I am not persuaded that Respondent's intent was to cause Groendyk to cease seeking employment, I am persuaded that the facts are insufficient to support a finding that Respondent has con- structively refused to hire Groendyk. There remains for consideration whether the state- ments made by Dame concerning the discharge of Groendyk if requested by Barnett constituted an interfer- ence with, restraint, or coercion of Groendyk in the ex- ercise of his right to engage in protected concerted or union activities. As the facts found reveal, on or about February 21, 1979, Dame said to Groendyk in effect that he could be discharged if Barnett requested it as revealed by the fol- lowing credited excerpts from the transcript of the Feb- ruary 21, 1979, Dame-Groendyk conversation: Dame: 'Cause Matty okayed this thing, I'm not worried about Matty. You know Matty says, O.K., I don't see any problems. You know? But, like we said, uh, maybe we're running too scared, but like we said, you know, I wouldn't want ya to buy the truck, get goin', and then Barnett say come up with some big f-k- deal where it's gonna mean a lot more to Matty to, to come out on the deal that they got cookin' better, you know, so they're not gonna, 944 CENTRAL. TRANSPORT. INC. so Bob Barnett says, O.K., you tell Nels and them to get rid of Roger Groendyk. Well, Matty's gonna say, hey, he's gotta go, because we got somethin' more important, you know? Groendyk: Um-hum. Dame: And that's the way things go, you know that. Later, on or about the last day of February 1979, Dame indicated to Groendyk that Barnett was unhappy with Groendyk. Groendyk then stated in effect that he best forget seeking employment because he did not want to be dumped in 30 days. In the total context of facts wherein Groendyk had to purchase his tractor and trail- er, an approximately $22,000 investment, for the job in- volved, and wherein there had been talk of jeopardy to his job if Barnett requested his discharge, it is clear that Groendyk was ceasing to seek employment because of fear that Barnett might request his discharge later and that, if such request were made, Respondent would dis- charge him. Dame's remarks to Groendyk at such time indicate clear recognition that Groendyk was ceasing to seek employment because of such fear. Accordingly, the overall facts clearly reveal that the statement by Dame as to the discharge of Groendyk if such were requested by Barnett constituted conduct which interfered with, restrained, and coerced Groendyk because of his protected concerted activity of having op- posed Barnett in union matters. Such conduct is clearly violative of Section 8(a)(1) of the Act. In this case it is clear that the effect of such violative conduct was the cessation of seeking employment with Respondent by Groendyk and that Respondent was aware of the effect of such conduct. IV. TH t EFFEC I OF ITHI UNFAIR lABOR PRACTICIS UPON COMMERCE The activities of Respondent set forth in section I11, above, occurring in connection with Respondent's oper- ations described in section 1, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THi. REME DY Having found that Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Having found that Respondent's statements to Groen- dyk concerning discharge if requested by Barnett of the Union have had the effect of causing Groendyk to cease seeking employment with Respondent, it will be recom- mended that Respondent be required to notify Groendyk that it will hire him as an over-the-road driver when he presents himself, passes the required physical examina- tion, and has ready for use required equipment (tractor and trailer), and notify Groendyk that his tenure on said job will be independent and free of any desire by Bar- nett, secretary-treasurer of Local 406 of the Teamsters, or said Local 406 otherwise, except to the extent that payment of periodic dues-initiation fees may be uniform- ly required of all employees under a valid union-security clause in a current collective-bargaining agreement; and it will be recommended that, upon the appearance or presentation of Groendyk under the above-described conditions for hiring, Respondent hire Groendyk as an over-the-road driver under the circumstances as set forth and described above. It will be further recommended that Respondent make Groendyk whole for any loss of wages or other benefits suffered by him as a result of his ceasing to seek employment with Respondent because of Respondent's conduct which interfered with, restrained. and coerced him in the exercise of his protected concert- ed and union rights. Such loss of earnings shall be deter- mined in accord with the Board's decisions in F. W. Woolworrh Company, 90 NLRB 289 (1950), Isis Plumbing & teatring Co., 138 NLRB 716 (1962). and Ilorida Steel Corporation, 231 NLRB 651 (1977), except as specifically modified by the wording of such recommended Order. In determining the remedy for the unfair labor prac- tices in this case, I have considered the evidence relating to an August 1, 1979, letter offering employment to Groendyk by Respondent's counsel, statements made by Dame to Kamps and transmitted by Kamps to Groendyk concerning employment and/or solution of the problem, and statements made by Respondent's agents to NLRB agents concerning Respondent's willingness to employ Groendyk. Respondent's counsel's statements at the hear- ing appear to reveal a realization that the only genuine issue as to whether hackpay should be tolled centers upon the value to be accorded to the August 1, 1979, letter. Considering such letter, I would note that it is not clear that the offer of employment by the special han- dling division is the same as an offer by the furniture di- vision. If necessary, such matter could be determined in the compliance stage of this proceeding. Considering the fact that the gravamen of violation in this case is that of interference, restraint, and coercion, a simple offer of employment that does not remove the basis for interfer- ence, restraint, and coercion cannot be accorded value and deemed to be a toll of backpay remedy. According- ly, neither the August 1, 1979, letter nor other statements by Dame to Kamps to Groendyk nor by Respondent's agents to the NLRB, support a finding that remedial steps requiring backpay should be deemed to have been tolled. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CON( I SIONS 0() LAA 1. Central Transport, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 406, International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America, is, and has been at all times material herein, a labor organi- zation within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its em- ployees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices proscribed by Section (a)( I 1) of the Act. 945 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices affect commerce [Recommended Order omitted from publication.] within the meaning of Section 2(6) and (7) of the Act.