Consolidated Freightways Corp.

National Labor Relations Board - Board Decisions

Jun 4, 1979

242 N.L.R.B. 770 (N.L.R.B. 1979)

)1(ECISIONS OF NATIONAl. LABOR RELATIONS BOARD
Consolidated Freightways Corporation of Delaware
and John Mitchell. Case 26-CA 7148
June 4, 1979
DECISION ANI) ORDER
BY MEMBERS PNI.I.(), MURIPHY, ANI) TRUSI)AIIF
On February 8, 1979, Administrative Law Judge
Hutton S. Brandon issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief; and the General Counsel
filed cross-exceptions 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 briefst
and has decided to affirm the rulings, findings.2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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 and hereby or-
ders that the Respondent, Consolidated Freightways
Corporation of Delaware, Memphis, Tennessee, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I Respondent has requested oral argument. This request is hereby denied
as the record, exceptions. and brifse adequately present the issues and the
positions of the parties.
2 Respondent has excepted to certain credibility findings made by the Ad-
ministrative I.aw Judge It is the Boa rd's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance Af all of the releant evidence convinces us hat the
resolutions are incorrect Standard DI)n 'Wall Proc/ldl. Inc. 91 N.RB 544
(1950), enfd. 188 2d 362 (3d (ir. 1951 . We hase carefullS examined the
record and find no basis tlr reversing his findings
DEC(ISION
SIAIIyN:NI ()I 1111it (Si
Htu;FON S. BRANDON, Administrative l.aw Judge: 'Ihis
case wvas tried at Memphis. Tennessee, on September 13
14, 1978.' The charge was filed bh John Mitchell, an indi-
vidual, herein called Mitchell, n April 13. and the com-
plaint was issued on May 18. ' The issues presented are
All dates are In 1978 unless otherwise stated.
2 This case was originally consolidated with two ther cases insolving two
additional respondents, Roadsay :xpress, Inc., ('Case 26 ('A 7147, alid Su-
perior orwarding ('ompan y. ('a;se 26 ('A 7151) I'he mortin of all three
respondents to sever their respective cases swsas granted at the hearing.
whether onsolidated reightways Corporation of Dela-
ware.2 herein called Respondent, coerced and restrained
employees within the meaning of Section 8(a)( ) of the Na-
tional Lahor Relations Act, herein called the Act, through
statements of an agent of Respondent to employees to the
effect that it was refusing to hire Mitchell because of his
past activities on behalf of Highway and Local Motor
Freight, Local 667. affiliated with International Brother-
hood of Teamsters, Warehousemen and Helpers of Amer-
ica. herein called the Union. and whether Respondent did,
in fact, refuse to hire Mitchell for such reason in violation
of Section 8(a)(3) of the Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent, I
make the ftiollowing:
FINI)IN(s F A( I
1. JURISI)I( I I()N
Respondent, a Delaware corporation, maintains an office
and place of business in Memphis. Tennessee, where it is
engaged in the transportation of freight. During the preced-
ing 12 months, Respondent, in the course and conduct of its
business operations, received in excess of $50,000 for the
transportation of goods which originated outside the State
of Tennessee or which were designated for delivery to
points outside the State of Tennessee. Respondent admits,
and I find, that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
11. Al 1.1(11) N AIR ABOR PRACtI It S
Mitchell. a long time over-the-road truck driver, served
as president of' the Union beginning in March 1975 until
January 8. 1978. when his term of office expired following
his failure to be reelected to the position in mid-DIecember
1977. Beginning about September 1977. in addition to his
general duties as president of' the Union he began to per-
sonally "service" the employees of' Respondent in the effec-
tuation and administration of the collective-bargaining
agreement between the Union and Respondent.' In late I)e-
cember 1977. Mitchell telephoned Robert Kirksey, Respon-
dent's terminal manager. to inquire about employment fol-
lowing expiration of' Mitchell's term of office. Kirksey.
according to Mitchell, suggested that Mitchell call him
back the next day and the two would arrange to have lunch
to discuss Mitchell's employment. Mitchell did call the next
day. hut Kirksey explained that he could not make a lun-
cheon date with Mitchell but told Mitchell to call again.
\MIitchell was not successful in further attempts to contact
Kirksev but did talk to ('hun Joe. Respondent's line haul
manager. who said that he would take an application from
The name oi the Respondent appears as alended ait the hearing the
record is herebs corrected to how "Freightuas." In the name of Respon-
dent wherever it appears in the record .as "'Freight Wass "
4 Respondent and the nion were palrties t a Nationmal Master reight
igreenlent v Ih supplementsrl
242 NLRB No. 119
770
(ONSOI.II)AI ED FREIGH FWAYS (ORPORATION OF DFLAWARFI
Mitchell hut advised Mitchell that only Kirksey could make
a decision to hire Mitchell.
About middle or late January Mitchell and 0. D). Lofton,
a union business agent who was also leaving office, pro-
ceeded to Respondent's office where they' saw C'hun Joe and
put in applications. While at the office ofton saw Kirksey.
whom he had known for several years. and had a brief
discussion with him. According to Lofton. he explained to
Kirksey that he was putting in an application and was look-
ing for a jobh. Kirksey responded that he was going to hire
about eight men, and that if Lofton wanted a job at Re-
spondent he would be one of the first men hired. Lofton
then inquired about whether Kirksey would hire John
Mitchell. and Kirksey stated that he was not going to hire
Mitchell. that he did not like him. Lofton remarked that he
thought that Kirksev and Mitchell had had fairly good rela-
tions. Kirkse, ended the conversation by stating that he
had business to attend to and would discuss the matter with
Lofton later.
Lofton further testified that he had another conversation
with Kirksev around the first part of Fehruary. At that time
Lofton telephoned to ask about when a "safety man" was
coming in to administer driver tests to applicants. Iofton
again asked about Mitchell's employment: and Kirkse, re-
plied that he was not going to hire Mitchell, that he did not
like him. that Mitchell was too ishy-washy and that
Mitchell had made an agreement with Respondent when
Mitchell was president of the Union and had backed out of
the agreement the next day. Further, Kirksey stated (ac-
cording to I.ofton). that Mitchell had filed a strike sanction
against Respondent claiming that Kirksey would not com-
ply with the decision of a multistate grievance committee,
and that this had caused Kirksey some problems with Re-
spondent.
Lofton was employed by Respondent on February 15.
Subsequently, around the last part of March. Lofton had a
third conversation with Kirksey in which Mitchell's em-
ployment was discussed. Lofton testified that at that time
he advised Kirksey that Mitchell was going to file "this"
lawsuit, and that Lofton felt Kirksey could avoid some
trouble by hiring Mitchell.' Kirksey's response was that he
was not going to hire Mitchell. that he just did not like him
because of the trouble that he had had with him when he
was president of the Union. Kirksev added, according to
Lofton, that Kirksey had hired two union business agents.
Lofton and Don Fields," and that Kirksey felt that this was
sufficient to prove that he did not have anything against
hiring an official of the local.
Lofton conceded that in one of the three conversations
with Kirksey related above, or perhaps in another one.
Kirksey had referred to a threat made to him b Mitchell
on one occasion while Mitchell was president to the effect
that Mitchell was going to break Kirksey's arms and legs.
and also that he "had sent word" of certain other threats.
Lofton admitted that Mitchell himself had previously told
' Respondentl does not contest the a;sailahility of johs and stipulated that
since January 30 it had hired drivers In regular ver-the-road driver posl-
lions Respondent further stipulated that Mitchell's pplicailon a .1s never
considered on the basis of his qualifications as n over-the-road driver
6 Fields was hired by Respondent at the ame tinie lttllton as hired
Fields had also served ;is a business agent for the nion dring Mi tchell's
administration
I.ofton that he had once told Kirksev words to the effect
that if Kirkse did not "do something" l.ofton could not
recall what it was that Mitchell would break his arms and
legs. Iofton testified that he regarded the subject as a kind
of laughing matter between himself and Mitchell.
According to Lofton. on one occasion' he and Fields had
talked to Kirksey in Kirksev's office. and Kirksev had re-
marked that he had hired two ex-husiness agents and to
hire a third officer out of the local would he out of the
question. that he had had second thoughts about hiring the
first two business agents but hoped that the! would make
good employees. Fields was not called as a witness. Lofton
impressed me as a sincere and honest witness, and his testi-
mony as related above was not specifically contradicted by
Kirksey. While Kirksey initially denied on cross-examina-
tton that he had ever referred to Mitchell as "' ish -w ash 5."
he subsequently admitted to using the term in reference to
Mitchell in a letter written bh Kirksey to his superior. Ac-
cordingl , otton's testimonv has a ring of truth to it. and I
credit him.
Kirkses made comnments to other witnesses called b the
General Counsel concerning Respondent's refusal to hire
Mitchell. ugene Allen. an employe e of Respondent ibr
about 13 ears, testified that he was in Kirkses's office in
the first part of December" and Allen remarked that he had
heard Mitchell was trying to get a job with Respondent.
Kirksev replied that Mitchell would never get a job with
Respondent. This testimony of Allen was not denied bh
Kirkse and is accordingly credited.
Kirksey made a similar remark in the presence of' em-
ployee r in ('halift. (Chalift testified that around the last
of March or the first of' April the subject of' Mitchell's en-
ployment vas raised in Kirksey's presence and the presence
of another individual identified onl\ as Mr. Moffitt. At that
time Kirksey stated "Well. as far as I am concerned I don't
care if he [MNitchell] never finds a ob." The remark was not
denied bh Kirkses.
Finall., Bill Ov. ens. a businless agent of the Union since
1975 who was still in otlice at the time of the hearing. testi-
fied that in the latter part of JanuorN he had a telephone
conversation ith Kirkse and discussed Mitchell's emplo\-
ment with Kirkse) at that time. Owens testified that Kirk-
ses said that he would not consider Mitchell because he did
not like Mitchell and Mitchell had put him on a strike no-
tice. and that it would make him look had with his people.
Kirkse5 added, however, that he had no objection to Mitch-
ell's emplonmelnt bh Respondent at some other location.
Moreover Kirkse' advised O()ens that he would hire
Fields and l.ofton if they passed their driver tests. Kirkses.
in his testimony, denied that he had told Owens that Mitch-
ell had made Kirkse) look bad bet'fore his people h) threat-
ening strike action. ilovever, Owens' testimony indicates
that it was the hiring of Mitchell that would make Kirkse
look had, not the fact that the threatened strike action had
made Kirksey look bad. Thus. I viewv O en's testimony as
not being specifically: denied. and since 1 found O)wens to
otherwise be a credible witness hose testimon, was not
adversel1 affected hb cross-examination, I credit him.
I he Illc was 111t specified n the rcord
s Alen's es atimnll ion .s t the timnie the rcent occrred is clearls erroneo o.
since here Wa n evlele that Mitchell sought ernpl.\nletnlit vilh Respon.
dteilt in ears I)CIe lcber
771
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The threatened strike action by Mitchell alluded to in
Owens' testimony requires some explanation. A synopsis of
the testimonies of Mitchell, Kirksey, and Jim Caputo, Re-
spondent's manager of industrial relations until mid-Octo-
ber 1977, reflects that in about February 1977 a dispute
arose over Respondent's use of city drivers to run over-the-
road trips. While the collective-bargaining agreement be-
tween Respondent and the Union did not specifically allow
such trips Respondent, by mutual agreement with Mitch-
ell's predecessor, had utilized city drivers on over-the-road
trips occasionally. Grievances were filed on the practice
during Mitchell's administration, but according to Kirk-
sey's testimony, the multistate grievance committee did not
resolve the matter; the committee stated that it was a mat-
ter of separate agreement between the local union and Re-
spondent. Subsequently, in mid-February 1977, Kirksey,
Caputo, and Mitchell met at Mitchell's request to work
something out on the matter which Mitchell thought would
be equitable to both city and over-the-road drivers. A writ-
ten agreement was reached on February 16, 1977, effective
February 23 and signed by both Kirksey and Mitchell giv-
ing Respondent the right to use city drivers to run over-the-
road trips under certain circumstances. Nevertheless, the
next day Mitchell, confronted with the opposition of a ma-
jority of over-the-road drivers to the agreement, phoned
Kirksey and cancelled the agreement. In March, Kirksey,
under Caputo's direction and faced with an emergency
need to use city drivers on road trips, utilized such city
drivers.9 This drew a telegraphic response from Mitchell
dated March 24, 1977, giving Respondent 72-hour notice of
intent to strike "subject to approval by the International
Union and the Southern Conference." Although the record
does not clearly reflect how the matter was finally resolved,
it is clear that no strike took place. The net result of the
matter was that Respondent was required to hire additional
over-the-road drivers. Mitchell's testimony that Respondent
was required to hire 14 to 16 additional drivers appears to
be an obvious exaggeration, and is not accepted. On the
other hand, Kirksey's testimony that only two new drivers
were added as a result of the dispute appears to be more
accurate and is substantiated to an extent by a seniority
roster which indicates two new hires within 2 days follow-
ing Mitchell's March 24 strike threat. I therefore accept
Kirksey's testimony in this regard.
Based on all the foregoing it is the General Counsel's
position and argument that Respondent refused to employ
Mitchell because of his activities vis-a-vis Respondent while
Mitchell was president of the Union. The General Counsel
concedes through the testimony of Mitchell that an encoun-
ter did take place between Kirksey and Mitchell in 1975,
and that certain statements were made by Mitchell to Kirk-
sey regarding the possibility of Kirksey getting some bones
broken. Since Mitchell's statements were made in the con-
text ol an "attempt to resolve a labor-management prob-
lem" it was not so "offensive" as to remove Mitchell from
the protection of the Act according to the General Counsel.
Mitchell's version of the "context" in which his state-
ments were made states that a dispute did occur involving
'Caputo's testimony that the threatened strike occurred prior to the can-
cellation of the February 16 agreement was clearly in error and was contra-
dicted by Kirksey,
Kirksey in Mitchell's office in May 1975. The dispute in-
volved the Union's business agents parking their cars inside
the gates of Respondent's Memphis facility. Kirksey came
to Mitchell's office to discuss the matter in the presence of
business agents Maurice Smith and Cecil Courtney.'° Ac-
cording to Mitchell, an argument followed with everyone
attempting to talk at once. Finally Mitchell told them all to
shut up; Kirksey then told Mitchell to shut up. At that
point Mitchell admittedly told Kirksey to get his "ass out of
there before he got the s-t kicked out of him" and showed
him to the door. As he was leaving Kirksey continued to
argue and called Courtney a liar. Courtney, a large man
(according to Mitchell), rose and Mitchell then admittedly
told Kirksey "Mr. Kirksey, the best thing you can do is go
ahead and leave because I have known folks of getting their
arms and legs broken for doing what you are doing here."
Kirksey thereafter left.'
Respondent's position, based upon the testimony of
Kirksey, is that Mitchell was not hired because of threats
made by Mitchell to Kirksey in the encounter in Mitchell's
office in 1975, as well as subsequently. With respect to the
1975 matter Kirksey testified that Mitchell specifically told
him during the encounter: "You will do what I tell you or I
will break both of your god-damn arms and both your god-
damn legs." This incident caused Kirksey such grave con-
cern that he reported the matter to his superior, Erv Sha-
piro, division manager in St. Louis, Missouri, who came to
Memphis the following week and met with Mitchell and
Kirksey regarding the threat. Shapiro, called as a witness
by Respondent, testified that in the meeting with Mitchell
he admitted the threat to Kirksey because of "misunder-
standings." The meeting ended amicably, according to Sha-
piro, with a resolution of the basic problem regarding busi-
ness agent parking."
Kirksey testified about two additional threats made by
Mitchell that came to his attention. One occurred about 6
months after the threat noted above and came from an un-
identified source who, Kirksey testified, reported to him
that Mitchell had made a threat in the bar of the Admiral
Benbow Inn that he would take care of Kirksey. A second
threat made by Mitchell, that he would "take care" of Kirk-
sey. was reported to Kirksey about 6 months later by his
office steward whose daughter had allegedly heard Mitchell
issue the threat at a local bowling alley. After the second
alleged threat, Kirksey testified that he confronted Mitchell
on the subject during a grievance meeting in Kirksey's of-
fice. Kirksey's testimony was equivocal about Mitchell's re-
sponse.'
Respondent's brief argues that the evidence establishes
that Respondent's refusal to hire Mitchell was based solely
on the threat issued directly to Kirksey and the threats re-
' A that time Courtney was the business agent who "serviced" Respon-
dent's road drivers and mechanics.
" Courtney was not called to testify regarding this incident. Smith did
testify and generally corroborated Mitchell.
1 Mitchell admitted the meeting with Shapiro and Kirksey and like Sha-
piro indicated that it ended amicably.
'3 Mitchell denied making any such threats and denied confrontation with
Kirksey about them. I credit Mitchell on both points. The testimony as to
the making of these later threats was unsubstantiated hearsay, and there
appeared to be no basis for the threats at the time the) were allegedly made.
Kirksey's testimony on the confrontation. the date of which was never estab-
lished, was not convincing.
772
CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE
ported to him. The initial threat made in Mitchell's office,
although occurring in the "context of protected activity,"
was such as to exceed all bounds of protection. Berns
Wholesale Sporting Goods Co., 188 NLRB 373 (1971). he
fact that Mitchell was a union president and encountered
Kirksey in that capacity did not, according to Respondent's
argument, "clothe Mitchell's offensive personality (to Kirk-
sey) with special protection." An abrasive personality is a
legitimate basis for refusing to hire an individual. McClain
Trucking, Inc., 194 NLRB 16 (1971). Finally. Respondent's
brief characterizes the testimonies of the General Counsel's
witnesses as being supportive of rather than contradictory
to Respondent's basic argument of the animosity between
Kirksey and Mitchell unrelated to Mitchell's involvement
in union or protected concerted activities. Accordingly.
such testimonies do not establish the independent violations
of Section 8(a)(1) alleged in the complaint. so Respondent's
brief contends.
Conclusion
I find it unnecessary to resolve the conflicts between the
witnesses as to the alleged threat to Kirksey in Mitchell's
office in 1975. In my view, Mitchell's own admission estab-
lishes that he told Kirksey that he should leave before he
got the "s-t kicked out of him" and then implied that Kirk-
sey could suffer broken bones "for doing what he was doing
there." The worst Kirksey was doing there was engaging in
an obviously heated argument during which he questioned
the veracity of a business agent. Consequently. I find that
Mitchell did issue a substantial threat to Kirksey which was
not likely to be forgotten by him.
Moreover, contrary to the General Counsel's argument, I
find Mitchell's threat, although made in the context of a
labor relations discussion, was not protected under the Act.
The Board has long recognized that tempers frequently
flare between parties to collective-bargaining discussions.
Thus, the Board has been loathe to deprive employees en-
gaged in such discussions of the protection of the Act be-
cause their conduct could not be characterized as mannerly
or their language genteel. See, e.g.. the following cases cited
in the General Counsel's brief. Hawaiian Hauling Service,
219 NLRB 765 (1975); Crown Central Petroleum Corpora-
tion, 177 NLRB 322 (1969); American Telephone & Tele-
graph Co., 211 NLRB 782 (1974); Houston Shell and Con-
crete Co., A Division of McDonough Co., 193 NLRB 1123
(1971). When it may be concluded that the conduct en-
gaged in is "flagrant and egregious" the protection of the
Act is lost. American Telephone & Telegraph Co., supra.
Consequently. while a "strong direct personal criticism of
management" even with uncomplimentary language by an
employee may be protected (Houston Shell and Concrete
Co., supra), an employee's threat to punch the employer in
the nose, even in the heat of a grievance discussion, is not
protected (Berns Wholesale Sporting Goods Co, supra).
Under the circumstances of the instant case, I find Mitch-
ell's conduct and statements to be so flagrant, opprobrious
and egregious as to have exceeded the bounds of protection
afforded by the Act. Indeed, a punch in the nose pales in
comparison to Mitchell's admitted statements to Kirkse3. It
follows that Kirksey's reliance on Mitchell's May 1975
threats would be a well founded and legitimate basis obr
refusing to hire him. Moreover, I find that Mitchell's MaN
1975 threats were, in fact, a matter of genuine concern to
Kirksey as shown by his subsequent report of the matter to
Shapiro and the meeting with Mitchell and Shapiro I week
later to discuss the matter. It is also revealed by Kirksey's
expression of concern over the matter to policeman and
neighbor, James Q. Sullivan, as well as by some comments
he made to certain of the General Counsel's witnesses, al-
ready set forth herein. I have no doubt that Kirksey enter-
tained a deep animosity toward Mitchell because of the
threats he attributed to Mitchell.
However, other elements of the General Counsel's case. I
conclude, demonstrate at least a mixed motive on Kirksey's
part in refusing to hire Mitchell. L.ofton's testimony, which
I have credited, clearly reveals that Kirksey harbored some
resentment against Mitchell over Mitchell's handling of the
dispute regarding use of city drivers, including Mitchell's
backing out of an agreement resolving the dispute and sub-
sequently threatening Respondent with strike action. The
credited testimony of Owens similarly shows that one of
Kirksey's concerns in not hiring Mitchell was Mitchell's
strike threat and the fact that hiring Mitchell would make
Kirksey look bad. Kirksey testified that Mitchell's strike
threat caused him no problems with Respondent because
his action in dispatching the city drivers in disregard of the
cancelled agreement with Mitchell, the event which
prompted Mitchell's strike threat, was done upon the ad-
vice of Caputo. The fact remains, however. that Mitchell's
cancellation of the agreement and prior practice on the use
of city drivers did cause Kirksey and Respondent some
"problems." at least to the extent that Respondent as re-
quired to hire two additional road drivers. While the ex-
pense to Respondent caused by such new hires ma) have
been minimal, it did constitute an inconvenience which Re-
spondent had been able to avoid in the past. Mitchell's
threatened strike action over an issue about which Mitchell
was "wishy-washy" could well be viewed as a basis for
embarrassment to Kirksey and Respondent. particularly
because Respondent. through Mitchell's equivocation. was
put in a position, according to Caruto's testimony, of not
knowing exactly where it stood with respect to the use of
city drivers on the road.
Not to be forgotten is the undenied testimony of Lofton
that Kirkse) stated that hiring a third union officer was out
of the question. that he had even had second thoughts
about hiring the two former business agents. This state-
ment, in the context of Mitchell's employment efforts.
clearly reveals Kirksey's preoccupation with union consid-
erations rather a consideration of Mitchell on his own mer-
it. It matters not, under these circumstances, that Respon-
dent in general or Kirksey in particular entertained no
general union animus and had hired ibrmer union officials.
To establish a violation of the Act it is sufficient to prove
that Mitchell was not considered for employment either be-
cause he had been an officer of the Union or because of his
protected activities while an officer of the Union.
Considering all the foregoing, I find that Respondent's
failure to hire Mitchell was indeed based in substantial part
upon his past status as a union officer and his protected
activities as an officer. Such protected activities in this case
included Mitchell's administration of the collective-bar-
gaining agreement and even his "wishx-washy" approach to
773
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resolution of the dispute with Respondent over the use of
city drivers as well as threatened strike action growing out
of that dispute. It is well established that a violation of the
Act may be found where the General Counsel proves by a
preponderance of evidence that a substantial or motivating
ground for an employer's action with respect to an em-
ployee was the employer's union activity, notwithstanding
the existence of another valid cause upon which the em-
ployer could legitimately have relied. See United Aircraji
Corporation v. N.L.R.B., 440 F.2d 85 (2d Cir. 1971): S. A.
Healy Company and/or Tom M. Hess, Inc. v. N.L. R.B., 435
F.2d 314 (10th Cir. 1970); N.L.R.B. v. Whitin Machine
Works, 204 F.2d 883, 885 (st Cir. 1953); KBM Electronics,
Inc., t/l Carsounds 218 NLRB 1352 (1975). Here I find that
a substantial and motivating factor in Respondent's refusal
to consider Mitchell for employment was his protected ac-
tivities. I therefore find that Respondent's action in this re-
gard violated Section 8(a)(3) and (1) of the Act.
Moreover, since Kirksey's statements to Lofton in early
February, as testified to by Lofton, disclose Kirksey's un-
lawful reasons for not considering Mitchell for employ-
ment, I find that Respondent independently violated Sec-
tion 8(a)(1) of the Act. Kirksey's statement to Lofton
obviously implied that the performance of duties in connec-
tion with union officership that displeased Respondent car-
ried with it risks to future employment by Respondent. Ac-
cordingly, such statement reasonably tended to restrain and
coerce employees in their union activities. On the other
hand, I do not find violative of Section 8(a)(1) the late
March statement attributed to Kirksey by Lofton to the
effect that Mitchell was not being employed because of
trouble Kirksey had with him when he was president. That
statement is sufficiently broad to encompass Mitchell's un-
protected threats which Lofton admitted that Kirksey men-
tioned, perhaps in the same conversation. Consequently. 1
do not view the statement as constituting such a clear refer-
ence to Mitchell's protected activities as to warrant a con-
clusion that it violated the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices within the meaning of the Act, I shall rec-
ommend that it be directed to cease and desist therefrom
and take appropriate affirmative action.
Since I have found that Respondent refused to consider
John Mitchell for employment on a nondiscriminatory ba-
sis, I shall recommend that Respondent be required to offer
him employment 4 in the position he would have been em-
ployed absent the discrimination against him. I shall further
recommend that Respondent be required to make John
14 The usual remedy of requiring an offer of employ ment and the making
of the iiscriminatee whole is deemed appropriate here. notwithstanding Re-
spondent's offer at the hearing to prove that Mitchell would not have been
hired in any event because during trial preparation it was discovered that his
application was "incomplete." Moreover, it is noted that Respondent's offer
of proof did not specify the materiality of any omission or that applicants
otherwise acceptable for employment were not allowed to correct any omis-
sions in their applications. In this respect the case is distinguishable from the
line of cases wherein reinstatement was not ordered because the discrimi-
natee falsified his application or made material omissions which would have
caused the employer not to hire him. See e.g.. W Kellr Gregory. Inc. 207
NLRB 654 (1973).
Mitchell whole for any loss of earnings he may have suf-
fered by reason of the discrimination against him, less any
net earnings5 during the period of backpay accrual, such
backpay and interest thereon to be computed in the manner
prescribed in F. I. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977).'16
In view of the nature of Respondent's violation. a broad
cease and desist order will be recommended.
CONC(LUSIONS OF LAW
I. Respondent, Consolidated Freightways Corporation
of Delaware, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Highway and Local Motor Freight, Local 667. affili-
ated with International Brotherhood of Teamsters, Chautf
feurs, Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By discriminatorily refusing to consider John Mitchell
for employment Respondent violated Section 8(a)(3) and
(1) of the Act.
4. By informing an employee that an employee applicant
was not being hired because of the applicant's protected
activities in behalf of the Union Respondent violated Sec-
tion 8(a)( I) of the Act.
5. The violations of the Act found above constitute un-
fair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
6. Respondent has not violated the Act except to the ex-
tent found above.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record and pursuant to Section
10(c) of the Act. I recommend the issuance of the tiollov ing:
ORDER "
The Respondent. Consolidated Freightways Corporation
of Delaware. its officers. agents, successors, and assigns.
shall:
I. Cease and desist from:
(a) Coercing and restraining employees by informing
them that an employee applicant was not being hired be-
cause of the applicant's protected activities in behalf of the
Union.
15 In another Decision issued by me on this date I tound that Milchell .as
also unlawfully discriminated against by another emploer during essentially
the same period of Respondent's discrimination herein See Roadvi 3 x-
press. Inc.. 242 NLt.RB 716. Accordingly. this recommended Order is to he
construed as requiring mutual and several liability by Resplondent o.,r hack-
pay wherever it appears during the compliance stage ,of this proceeding that
the actual periods of discrimination coincide
1' See, generally. Isis Plumbing & Heuting (i. 138 NRB 716 1962). The
General Counsel. in a supplemental brief. seeks an order requiring interest
on ackpay to he coImputed on the basis of 9 percent per annum I he rate ot
interest is a policy matter to be determined by the Board. I amni presentl 5
bound in this regard by the Board's decision in Florid Scl (rporiarn.
supral
i7 In the event no exception.; are filed as provided by Sec. 10246 f, the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusionls, and recommended Order herein shall, as prosided n Sec 102 48
of the Rules and Regulations. be adopted by the Board .and beco me it
findings. conclusions, and Order. and all objections thereto shall he deemed
waived lor all purposes.
774
CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE
(b) Refusing to consider for employment employee ap-
plicants because of their protected activities in behalf of the
Union.
(c) In any other manner interfering with, restraining. or
coercing its employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Offer John Mitchell immediate employment in such
position as he would have been hired absent the discrimina-
tion against him.
(b) Make John Mitchell whole for any loss suffered by
reason of the discrimination against him in the manner and
to the extent set forth in the section of this Decision entitled
"The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(d) Post at its Memphis, Tennessee. facility copies of the
attached notice marked "Appendix."' 8 Copies of said no-
tice. on forms provided by the Regional Director for Re-
gion 26, after being duly signed by Respondent's represent-
ative, shall be posted by it immediately upon receipt
thereof, and be maintained by Respondent for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that such notices are not altered. defaced, or covered by any
other material.
11 In the eent that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted bh Order of
the National Lahor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional abor Relations Board "
(e) Notify the Regional Director for Region 2. in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS HEREBY ORDERFI) that the complaint herein he, and
it hereby is, dismissed to the extent that it alleges an' unt'air
labor practices not found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF- 1111
NAIIoNAL LABOR RE..ATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the chance to gise
evidence, it has been decided that we violated the National
Labor Relations Act, and we have been ordered to post this
notice.
WE WILL NOT coerce or restrain our emplosees by
informing them that an employee applicant was not
being hired because of the applicant's activities in be-
half of Highway and Local Motor Freight. Local 667.
affiliated with International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers of America.
WE WqI NOT refuse to consider for employment em-
ployee applicants because of their activities in behalf
of the above-named or any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of rights
guaranteed them under Section 7 of the National La-
bor Relations Act. as amended.
WE wit.i offer employment to John Mitchell in a
position which he would have received had his applica-
tion been properly considered. and ws'l wii.I make hini
whole for an) loss of earnings he maN have suffered as
a result of our failure to consider him for emplo' ment.
CONSt.I)t I D) FRIG(;I14tW\YS CORPORAIION ()F
DEI At ARI
775