Consolidated Freightways Corp. Of Delaware

National Labor Relations Board - Board Decisions

Jun 14, 1989

294 N.L.R.B. 1142 (N.L.R.B. 1989)

1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Consolidated Freightways Corporation of Delaware
and Christopher Lee Book . Case 9-CA-25133
June 14, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND DEVANEY
On October 31, 1988, Administrative Law Judge
Bernard Ries issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, as
modified, i and conclusions and to adopt the rec-
ommended Order.
In finding that the Respondent violated Section
8(a)(3) by disqualifying employee Book from casual
and other employment, the judge relied in part on
Company Manager Amburn's statement to Union
Steward Baker that if Baker "could talk [Book]
into dropping the grievance, [Amburn] would con-
tinue working [Book] casual."2 We agree with this
portion of the judge's analysis. Amburn's statement
to Baker constitutes a threat in violation of Section
8(a)(1). Further, as the judge stated, this statement
establishes a direct nexus between Book's grievance
and his disqualification. We find it unnecessary to
pass on the judge's additional theory of discrimina-
tion based on the judge's belief that Amburn knew
Book had falsified his reemployment application
before Book filed the grievance.3
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 In agreeing with this portion of the judge's analysis, we do not adopt
his discussion of the alleged inconsistency between Baker's testimony and
his affidavit to the Board agent We do not believe Baker's affidavit con-
tradicts his testimony or precludes the findings the judge made that we
rely on
3 We do not adopt the judge's findings to the extent he suggests Book's
falsification was not deliberate or his speculation that Book told Amburn
about his application falsification The Respondent asserts that it was
denied due process by Book's absence from the hearing because it could
not cross-examine him on such matters as whether he had told Amburn
about his prior discharge or his falsifying his reemployment application
and whether Book had learned of Amburn's statement to Baker about
continuing to employ Book if the grievance were dropped We find no
denial of due process because we conclude that Book's failure to testify
at the hearing did not prejudice the Respondent Because we have found
that Book falsified his application and because we have disavowed reli-
ance on the judge's speculations, testimony concerning those matters
would be immaterial Because Baker himself was an employee, the state-
ment suggesting that Book's continued employment was dependent on his
failing to press a grievance violated the Act regardless of whether some-
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Consolidat-
ed Freightways Corporation of Delaware, Louis-
ville, Kentucky, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
one had communicated it to Book, so Book's testimony is also irrelevant
in that respect
Earl L. Ledford, Esq., for the General Counsel.
Paul R. Moran, Esq. and Terrell B. Snyder, Esq. (Cors,
Bassett, Kohlhepp, Halloran & Moran), of Cincinnati,
Ohio, for the Respondent.
DECISION
BERNARD RIES, Administrative Law Judge. This com-
plaint, based upon a. charge filed on February 23, 1988,
was tried in Louisville, Kentucky, on May 20, 1988. The
parties filed briefs on July 21. The issues presented by
the complaint are two: (1) whether Respondent violated
Section 8(a)(1) of the Act in late January or early Febru-
ary 1988 by virtue of a threat uttered by its agent; and
(2) whether the Respondent's February 11, 1988, dis-
qualification of Christopher Book for future casual em-
ployment constituted a violation of Section 8(a)(3) of the
Act. i
' By motion dated June 17, 1988, Respondent seeks to reopen the
record for the purpose of receipt of a "Referee Decision" rendered by
the Kentucky Department for Employment Services subsequent to the
date of the instant hearing Although General Counsel opposes the
motion, it has been the Board's customary practice to receive these docu-
ments and assign them such weight as they may deserve See, e g, West-
ern Publishing Co, 263 NLRB 1110 fn 1 (1982), describing this "long
held" position, Chem-Nuclear System, 281 NLRB 65 fn 1 (1986) Gen-
eral Counsel misstates the rule in saying that the cases authorize receipt
of such decisions "if they have any probative value " Western Publishing,
supra, held that such documents "have some probative value" and are
therefore admissible Balsa Drainage, 242 NLRB 728 In 1 (1979), is, as
General Counsel states , contrary to this "long held" position, but is plain-
ly a "sport" case
Furthermore, the referee decision shows that Christopher Book, the
Charging Party, attended the appeal hearing before the referee, just 3
days after the hearing in this case, at which he did not appear despite the
fact that he had been subpoenaed by both General Counsel and Respond-
ent At the instant hearing, counsel for General Counsel represented his
understand'ng that Book was driving a truck in Pennsylvania and having
trouble getting the truck loaded at the time expected In its principal
brief, Respondent argues, inter alia, that Book's failure to appear should
result in dismissal of the charge, citing Electrical Workers IBEW Local 8
(Romanoff Electric), 221 NLRB 1131, 1133 (1975), in which the adminis-
trative law judge dismissed one of the consolidated cases because of the
charging party's "failure to appear at the hearing in response to a subpoe-
na, or to indicate in any other manner any continuing interest in the
matter " Although the factual disparity between this case and Ro-
manoff is significant , to the extent that any reviewer of this case might
find some such theory appealing here, Book's attempt to contest the pro-
posed adjusted unemployment compensation determination suggests a
"continuing interest" in pursuing this matter, and the decision is therefore
relevant for that purpose as well
While I have considered the referee decision, and its conclusion that
Book was "discharged for misconduct connected with the work," I
am not persuaded that it should be afforded any substantial probative
value The only appearances before the referee were by Book and Termi-
Continued
294 NLRB No. 89
CONSOLIDATED FREIGHTWAYS CORP
I note below, to clarify the record, a few typographi-
cal errors in the transcript.2
I. SUMMARY OF THE CASE; POSITIONS OF THE
PARTIES
Respondent is a national trucking company. Its termi-
nal at Louisville, Kentucky, has been managed by Roy
Amburn since November 1985; in his 10-year tenure with
Consolidated Freightways, Amburn has been employed
at three other locations.
The Louisville terminal has recognized the Teamsters
Union and its Local No. 89 as the collective-bargaining
representative of its drivers for at least 25 years. The
agreements pertinent to this case made provision for the
employment of "casual employees," as distinguished
from "regular employees" and "probationary employ-
ees." Two kinds of "casuals" were described: "replace-
ment casuals," to temporarily replace absent regular em-
ployees, and "supplemental casuals," to supplement the
regular work force as needed.
Christopher Book worked as a casual driver for Re-
spondent from October 1980-October 1981. He then
stopped making himself available for such employment
for a few years, but filed a new application for employ-
ment on October 1, 1984. He began working steadily for
Respondent thereafter, driving 2-3 days per week.
On January 15, 1988, Book filed a grievance complain-
ing that although he had been promised since December
1986 that he would be promoted to regular status, others
had by passed him . On February 11, 1988, Manager
Amburn sent Book a letter notifying him that he was
"disqualified from casual or any employment" with Re-
spondent. General Counsel asserts that the "disqualifica-
tion"-precluding Book from receiving any casual
work-was motivated by the filing of the January 15
grievance, contended to be an activity protected by Sec-
tion 7 of the Act. Respondent declares that the grievance
was wholly irrelevant to the disqualification and that, in
fact, the sole reason for the disqualification letter was
that, after Book had filed his 1988 grievance and
Amburn had begun to investigate it, he discovered that
Book had falsified his 1984 application by lying about
and concealing the fact that he had been discharged by
an employer in May 1979.
II. THE BASIC FACTS AND FINDINGS RELEVANT TO
THE DISQUALIFICATION
This case is of particular interest because what appear
at first to be the basic facts dissolve, after close scrutiny,
into what I believe to be a radically different scenario.
Certain bits of evidence do not seem to make any sense
in the chronology of events seemingly accepted by both
General Counsel and Respondent, and they stick out like
proverbial sore thumbs. However, as discussed below,
when these stubborn anomalies are considered in a differ-
ent content, they then fit in as neatly as round pegs in
round holes.
nal Manager Roy Amburn, and the decision does not indicate that the
hearing was conducted in any manner approaching the relative thorough-
ness of the present proceeding
2 Transcript errors have been noted and corrected
1143
Amburn testified that around October 1986, Book,
who had worked for Respondent (in his most recent
stint) since 1984, had requested, along with two other
casuals, promotion to the regular seniority list Amburn
told Book that he was under consideration, and began to
perform the background investigation he routinely un-
dertakes in such circumstances Book allegedly told
Amburn that there had been a "slight problem" at
Mitchell Transport, an earlier employer, but did not
expand on its nature; nor did Amburn attempt to elicit
the details of the problem from Book
Examining Book's 1984 application form, Amburn
noted that Book had listed "Mitchell Transport" as a
prior employer, for the period September 1979 to Octo-
ber 1980; Mitchell's location in Louisville; his supervisor
there as "Dave Shilling"; and his "Reason For Leaving"
as "L/O."3 A perusal of the 1987 Louisville telephone
directory, however, showed no current listings for either
"Mitchell Transport" or "Dave Shilling."
At that point, Amburn testified, he brought to a close
his background investigation of Book, and made no fur-
ther effort to unearth Mitchell Transport. He also
stopped giving consideration to Book's request for regu-
lar status . Sometime later, when Amburn was consider-
ing hiring another regular employee (eventually choosing
one Emzy Thornberry), Book came to him again and
reapplied. Amburn told Book that "at that particular
time I had an unsatisfactory background check I didn't
have a clean check on him." In the first of some strange
testimony in a case with its fair share of that commodity,
Amburn conceded that Book had asked what the prob-
lem with the check was, but Amburn "would not answer
him." Amburn was not asked at the hearing to explain
his refusal
Two more openings for regular employees were filled
between Thornberry's appointment in March 1987 and
late November of that year, but although, according to
Amburn, Book would ask him "occasionally" about the
prospect of full-time employment, he "offered no infor-
mation." At the hearing, Amburn did not seem to recog-
nize how peculiar it seemed for him to be placing the
onus on Book for his failure to spew forth information to
clarify a subject which Amburn had refused to identify
to Book.
On January 15, 1988, Book filed his grievance, seeking
placement on the regular list. Although Amburn testified
that he knew that the grievance "would not be upheld
under this contract" (on the theory, as Union Steward
James Baker expressed it, that "[T]he company has a
right to hire anybody that they want to hire"), Amburn
began , he says, for the first time since Book sought regu-
lar status in 1986, to launch a serious investigation into
Book's separation from Mitchell Transport. Amburn's ex-
planation for this seemingly unnecessary burst of activity
was that he was not very experienced in labor relations
and felt that he had to be "ready for anything that could
be brought out."4
3 Book also checked the "No" box on the separate question, "Have
you been discharged from any position7"
4 The record shows that Amburn had worked for Respondent for 10
years and was the terminal manager at Lafayette, Indiana, for over 3-1/2
years prior to his assignment to Louisville
1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Amburn testified that he spoke to his supervisors about
the grievance, and, in doing so, asked dispatcher Charles
Graves if he knew of Mitchell Transport.5 Graves told
him that he thought that Frank Helton, a former employ-
ee of Respondent, may have gone to work for a compa-
ny named Mitchell sometime after leaving Respondent's
employ Graves suggested that Paul Schmidt, also an of-
ficial at the Louisville terminal and a personal friend of
Helton's, might be able to find him. Amburn had
Schmidt call Helton and then put Amburn on the line.
We pause here to consider the testimony of Graves,
who appeared as Respondent's witness. Certain of the
evidence leads me to conclude, as alluded to above, that,
contrary to Amburn's testimony, he in fact was aware of
the falsity of Book's application much earlier than January
1988, and made no effort to disqualify Book prior to his
filing the grievance at that time. Grave's testimony seems
to lend some support to that theory.
Graves said that after Amburn asked him in January
1988 if he was familiar with a company named Mitchell
Transport, he replied at first that he was not, but later he
began to think about the fact that Frank Helton had
worked for an "irregular carrier or concrete hauler or
something out in Kosmosdale and I wasn't sure of the
name." Graves accordingly told Amburn that he should
contact Helton, saying, "If it's not the company he
worked for, he might know of a company since he did
work out there." The record shows that Mitchell had
been located in Kosmosdale, represented by Respond-
ent's counsel to be on "the outskirts of Louisville."
Book's 1984 application does not specify that Mitchell
had been operating in Kosmosdale; it merely gives
Mitchell's location as "Lou Ky." Thus, Graves' phrase
"out there" is intriguing . It indicates that he somehow
knew that Mitchell Transport had operated in Kosmos-
dale, a location at which he was sure Helton had
worked. But how would Graves have known about Kos-
mosdale unless he heard about it from Amburn, who
says that he knew nothing about the Mitchell location at
Kosmosdale until he received more information after
speaking to Graves? The suggestion, at the very least, is
that Amburn knew more about Mitchell in 1988 than he
has told us, at most, it means that both Amburn and
Graves were not telling the whole truth about this con-
versation.
Amburn's description of his telephone conversation
with Helton is a study in creeping expansion of testimo-
ny. At first, Amburn testified that Helton (who had,
indeed, worked for Mitchell) said "he didn't really recol-
lect anything" about Book, but gave Amburn the name
of Roger Bales, an official of Leaseway Transportation
in Middletown, Ohio (Leaseway turned out to be the
parent company of Mitchell). On further questioning on
direct, however, Amburn recited that while Helton re-
called no specifics about Book, he remembered "some-
thing that was a little questionable that went back to his
background or his previous employer [sic] with Mitchell.
5 He also said that he had not pursued even such a casual inquiry 2
years before, once he had run into the stone wall of an uninformative
1987 telephone directory while attempting to contact a company that
Book had worked for some 8 years previously
He didn't know exactly what it was. . . " Then, led by
the question whether he had asked Helton if he would
"recommend this individual as a regular employee,"
Amburn rather surprisingly responded that Helton had
told him he would not do so because "there was some-
thing that went back on his background check. He
would work out fine as a casual but as a full time em-
ployee he could not give that recommendation."
Notable here is the fact that, as both Amburn and
Helton testified, their conversation had to do with Am-
burn's request for Helton's recommendation for Book "as
a regular employee," to which Helton gave a negative
response because, as Helton testified, Book was a "previ-
ous employee" of Mitchell who was not recommended
by Bales for hire in 1984 or 1985 But the asserted Janu-
ary 1988 call to Helton purportedly, and logically, had
nothing to do with seeking a recommendation as to whether
to hire Book as a "regular employee"; the question before
the house at that stage was, it is said, the circumstances
of Book's 1979 employment by Mitchell as part of the
pregrievance hearing investigation. This further indicates
that the conversation between Amburn and Helton oc-
curred not in January 1988, but probably in late 1986 or
early 1987, when Book first sought regular employment
and Amburn undertook to look into Book's background.
Helton was also called by Respondent. Helton had
been an employee of Respondent from 1978 until 1983,
and had gone to work for Mitchell at Kosmosdale in
February 1984 to set up a new flatbed operation there.6
Helton testified that in the latter part of January 1988,
Amburn had called to ask if Helton remembered Book
from his Mitchell employment Helton testified that he
replied that he remembered the name, but also told
Amburn, "I don't remember whether he was employed
at Mitchell at the time was there " This, however,
proved to be untrue, for, as Helton continued to testify,
he said that Book was not working for Mitchell when he
was there. He said he told Amburn that there was "some
discussion" about Book when he was at Mitchell, and
the discussion turned out to have been generated by a list
of available drivers presented to Helton by the Teamsters
for the new flatbed operation; as to Book, Mitchell Ter-
minal Manager Bales had advised Helton that Book had
been "a previous employee of the Kosmosdale operation
and that he was not recommended for our operation."
Based on this recollection of a seemingly minor event
which occurred at some time after February 1984, when
Helton went to work for Mitchell, and prior to the end
of 1985, Helton was allegedly able, in January 1988, to
not only recall Book's name, but also somehow to advise
Amburn that based on what he had heard, and on his ex-
perience, "I would use him as a casual, but I couldn't
recommend him as a full time employee."7
5 When Book had worked for Mitchell at Kosmosdale in the late
1970s, it had been on a cement-hauling job being performed by Mitchell
for a concrete company
7 Helton's explanation for this distinction was that an employer can
always terminate a casual, but, with a regular employee, "[Y]ou're going
to live with him for the rest of your life " Amburn advanced the same
rationale he said he does not investigate a casual driver beyond the four
corners of his application, but, when he has tentatively decided to hire an
Continued
CONSOLIDATED FREIGHTWAYS CORP
Helton testified that he made the foregoing statements
to Amburn and then gave him the telephone number of
Roger Bales, now located in Ohio. Within a few days,
Amburn called to say that the number was wrong
Helton found another number that Amburn could use.
According to Helton, then, there were two calls from
Amburn, and only the first was substantive. Amburn
contacted Bales and then wrote the letter set out below.
Not only does it contradict Helton, but it also leaves the
strong impression that Amburn had two widely separated
conversations with Helton, thus reinforcing the sugges-
tion that Amburn was aware long before January 1988 of
Book's falsification of his 1984 employment application
filed with Respondent.
Amburn's letter to Bales, dated January 21, 1988,
reads, in pertinent part, as follows (emphasis added;
spelling and grammar verbatim)-
Per our phone conversation concerning Mr.
Chris Book who was employed by your company
from 9/79 to 10/80.
I have previously spoken with Frank Hilton who
was a past employee with your firm concerning Mr.
Book, and was verbally told that his recommendation
on Mr. Book was that he would probably be fine as a
casual employee, however he highly recommended we
not hire on a permanent basis. Mr. Hilton again on
1/20/88 advised me to contact you in regards to any
particulars concerning this employee as you would
most likely have any and all records available.
Could you possibly shed any light on this issue
concerning Mr. Book? As information, his applica-
tion shows being on lay off effective 10/80, is this
true?
Also, as you requested the below mentioned are
additional matters of information which may be
helpful to you in researching your records.
Name-Christopher Book
SS #406-72-1602
Present address-904 Capital Hill Dr, Jefferson-
ville, IN 47130
Previous address-2020 Hwy 62, Jeffersonville,
IN 47130
Date of Birth-1/16/50
applicant for regular employment, he employs a private investigator to
undertake a full examination of the applicant's history
This differentiation in treatment between regular and casual employees,
although not contradicted, is, parenthetically, curious Respondent was
willing to trust Book with its trucks, its loads, and its tort lability for
years, averaging 2-3 days a week, on the strength of nothing more than
his application and Respondent's presumably increasing trust in and fa-
miliarity with him, but when he applied for a job which is allegedly in-
vulnerable to discharge, the importance of checking his background
somehow becomes critical Whether there is any substance to the under-
lying thesis-that the contract grievance procedure makes it impossible to
terminate a driver-is immaterial here, since the issue presented is not
whether Book was refused regular status because he filed a grievance,
but whether he was removed from the casual list for that reason It is
relevant, however, to Amburn's credibility, and it is worth noting that
Amburn otherwise showed faith in the grievance procedure He testified
that he knew that Book's grievance would not be upheld, and he did not
deny Union Steward Baker's testimony that, "in a lot of cases," Amburn
refuses to settle the grievances (which average perhaps one per month),
saying that he would prefer to go to the joint Union-Employer commit-
tee with them
1145
Lic #KY-406-72-1602
Copy of your road test attached
Copy of your written certification attached
Application attached
Copy of Grievance attached
Mr. Bales, I will be more than happy to pay for
your time and involvement concerning this matter.
As you can see and know from your previous in-
volvement with this person, he is not an employee
worth hiring.
When answering this request, please list any and
all details concerning your employment with this
company as well as any and all possible details con-
cerning Mr. Book. Could you please reply back as
soon as possible hearing date is set for 2/2/88.
The first sentence in the second paragraph again dem-
onstrates that when Amburn "previously spoke" to
Helton, he elicited a "recommendation" that Book not be
hired "on a permanent basis." As discussed above, the
sentence makes sense only if the "previous" call to
Helton had been made in late 1986 or early 1987, when
Book had applied for regular status. The implication,
thus, is that Amburn had found out or had reason to sus-
pect long before January 1988 that Book had falsified his
application with Respondent, but had allowed Book to
continue working as a casual regardless of that knowl-
edge or suspicion.
Not only does the foregoing theory make sense out of
the pinpointed sentences, but it also makes understand-
able other seeming peculiarities in the record. It is easier
now to explain why Amburn says he "would not
answer" Book when the latter asked what was obstruct-
ing his background check. It is also simpler to under-
stand the unusually positive testimony by Amburn, in re-
sponse to a question by counsel for General Counsel re-
lating to the contrast between Amburn's indolence re-
garding the investigation of Book in the past and his
burst of activity after the filing of the grievance: "Well, I
wasn't concerned about it for over a year because it was
common knowledge that Mr. Book was not going to be
brought on as a full-time employee. He was welcome to
work as a casual but he was certainly not going to be
brought on as a full-time employee " Why was it
"common knowledge," why was it "certainly" the case
that Book had no chance of regular employment?8 Be-
cause he had failed to offer Amburn information on a
subject which Amburn had refused to identify for him?
think not It seems to me more likely that Book "certain-
ly" had no chance of becoming full-time because
Amburn had already learned (or at least had grounds for
suspecting) that Book had been fired by Mitchell Trans-
port; nonetheless, Book "was welcome to work as a
casual."9
9 Compare, if only for purposes of amusement, Amburn's other testi-
mony that Book "was always under consideration," but there was no on-
going background check, and that even after Book had filed the griev-
ance, "[ilt was still a possibility he could have been brought on as a regu-
lar employee, because I'd had nothing to go against him at that point "
9I note that Amburn's letter to Bales encloses copies of "your road
test" and "your written certificate " The only meaning that makes sense
Continued
1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After sending the letter to Bales, the latter "advised"
Amburn, evidently by telephone, that "there was quite a
bit of extensive negative comments" relating to Book's
previous employment with Mitchell; however, Bales
"would not divulge anything to me per se" other than
that Book "had been discharged," and said that particu-
lars would have to be secured from Glen Autry, director
of human resources for the bulk materials group of
Leaseway Transportation, Mitchell's parent. i ° Amburn
contacted Autry's office in Cleveland; Autry had Book's
old file pulled from a warehouse; they spoke on Febru-
ary 9 (presumably with Autry telling Amburn what he
had discovered about Book); and on that same day,
Amburn wrote Autry a letter asking whether Book had
been employed by Autry's firm from 9/79 to 10/80
(Autry wrote on Amburn's letter, which he returned to
Amburn, "8/22/78 to 5/31/79"); whether it was true
that Book had left Mitchell because he was laid off
(Autry wrote "No"); and whether it was factual that
Book had not been discharged from any position (Autry
.wrote "Discharged 5/31/79"). He made no inquiry about
a supervisor named Shilling.
While there is no express testimony that Helton knew,
or told Amburn, that Book had been discharged from
Mitchell, certain evidence points convincingly in that di-
rection. Amburn testified that Helton told him, "based
on some of the things he had heard," that Book "would
work out fine as a casual , but as a full-time employee, he
could not give that recommendation." Helton similarly
testified that he told Amburn that "from what I had
heard,"Book should not be hired as a regular. What
Helton "had heard" about Book came from Bales, and
Bales knew that Mitchell had discharged Book. Surely,
Amburn would have asked Helton what he had "heard,"
and there is no, reason to believe that Helton would not
have told him, just as Helton was willing to recommend
against the permanent hiring of Book.
I am persuaded, based on the foregoing discussion,
that Amburn was aware, or at least strongly suspected,
by about late 1986 or early 1987, that Book had been
fired from his job at Mitchell, and that, accordingly,
Book had probably falsified his application. Amburn
failed to do anything about this, however, until Book
filed his grievance, at which time Amburn began at-
tempting to collect from Bales, and then Autry, docu-
mentation of what he had been aware of for a year or
more.
In so concluding, I am discrediting not only Amburn,
but also Graves and Helton. None of the three made a
good personal impression on me at the hearing. Graves is
a long-time supervisory employee; Helton is a former su-
pervisor of Respondent's, who parted company amica-
here is that Amburn had in Book's file copies of Mitchell transport's doc-
uments pertaining to Book R Exh 3, a letter written on Mitchell sta-
tionery in 1979, prominently displays its affiliation with Leaseway, and it
seems reasonable to assume that the road test and certificate might also
show that connection If that assumption were correct, the two docu-
ments would have provided an important clue to discovering evidence
about Book in 1986, had Amburn not already received the information
10 It is left unexplained why Bales did not say this to Amburn in their
first conversation, thus saving Amburn the trouble of writing the January
21 letter Indeed , the letter states that Bales had "requested" information
from Amburn in order to obtain details for him
bly, so far as the record shows. On the evidence as I
have analyzed it, I find that analysis a good deal more
compelling than the statements of these witnesses. But I
note further that the peculiarities in the testimony given
only by Amburn provide a basis for reaching the conclu-
sion that Amburn's knowledge was not of recent vintage;
he may have secured it in other ways, and then rung in
Graves and Helton in early 1988 only to serve as a
facade.
There is another, more conventional approach to this
record which establishes a direct nexus between the
filing of grievance and the disqualification of Book.
Union Steward James Baker testified that in a discussion
with Amburn about Book's grievance, Amburn said that
if Baker "could talk Chris into dropping the grievance,
he would continue working him casual." The biggest
problem this testimony faces is that it does not appear in,
and in fact is, arguably, effectively refuted by, the pre-
trial affidavit given by Baker to a Board agent. That
document states, in pertinent part:
3 Sometime after Chris Book filed his grievance
Amburn spoke to me in his office.. . . Amburn said
he found something on Book. I asked what it was.
Amburn said he was not going to tell me .. .
Amburn said I should try to get Chris to drop the
grievance because there would be terminal manager
setting on the board who would hear what he had
on Book. Amburn said it would come out at the
hearing before the board and these other terminal
managers would hear it and it would hurt Chris's
chance of working casual for these other compa-
nies. Amburn said he would not call the other ter-
minal managers to tell them what he had. . . .
4 This conversation related above is the only one
I call recall having with Amburn in which Book's
having filed a grievance was discussed. A number
of times, I asked Amburn why he did not go ahead
and give Book a job since we needed people.
Amburn would not respond. . . .
Thus, on March 1, Baker described to the Board agent
a conversation with Amburn about Book's grievance
which, while alluding to the general subject of with-
drawal of the grievance, did not mention any quid pro
quo of allowing Book to continue working as a casual.
When asked about this, Baker simply said he did not
recall saying anything about the latter proposition to the
Board agent. The affidavit goes on to say that the de-
scribed conversation is "the only one I can recall having"
with Amburn relative to Book's "having filed a griev-
ance." This flat statement, however, is seemingly contra-
dicted by the immediately following sentence stating that
Baker had asked Amburn "a number of times" to give
Book a job; this would indicate that the grievance was
discussed by the two men more than once. At the hear-
ing, Baker made a "guess" that they spoke of the matter
"two or three times."
Ordinarily, I would be disinclined to credit Baker's
testimony insofar as it augmented his affidavit. Here, I
do not reach that result, for the following reasons.
CONSOLIDATED FREIGHTWAYS CORP
First, Baker impressed me as a man of probity, al-
though not overburdened with mental acuity or educa-
tion. It seems entirely possible to me that he simply
forgot the trade-off proposal until sometime after he
gave the affidavit. I note that the proposal appears as an
allegation in the complaint issued by the Regioll on April
4. I also detected no particular bias on Baker's part as he
testified, and I would point out that the Union did not
file the charge.
Second, Respondent's counsel virtually had to arm
wrestle Amburn to get him to deny Baker's assertion.
Amburn, after listening to Baker give his testimony, en-
gaged in the following colloquy when his turn came a
few hours later:
Q. Mr. Baker testified that he had a conversation
with you in which you offered to let Mr. Book con-
tinue working as a casual if the grievance was
dropped, did you do that?
A. No, sir, I don't recall any such statements.
Q. Do you recall anything of that nature?
A. No, sir.
Q. Do you deny that conversation?
A. There would be no reason for me to make a
statement like that.
JUDGE RIES: Answer his question.
By Mr. Moran: Do you deny making that state-
ment?
A. I did not make the statement.
The weak first response of an inability to "recall"
having such a deal seems to clearly admit of the infer-
ence that the proposition was made; it can scarcely be
imagined that if Amburn had not made such an offer, he
would not have thumpingly denied it. When counsel,
sensing the equivocal tone of Amburn's reply, tried to
button him down to a denial, Amburn further equivocat-
ed. Only after I had directed that the question be an-
swered did Amburn clearly state that he "did not" make
the statements (which, of course, is qualitatively different
than his of no "recall"). I infer psychological distress on
Amburn's part here, and conclude that it is supportive of
Baker 's claim. i i
I i A similar problem arose with respect to Amburn's testimony that
when Book talked to him in 1986 about regular employment, Book
warned him that there "was a slight problem with Mitchell ," but did not
elaborate Asked by the General Counsel if Book had not said he had
"filed a grievance over his discharge from Mitchell" because they wanted
him to drive beyond appropriate hours, Amburn responded, "I don't
recall that , sir If he told me, I don ' t remember " But it would seem
that any asserted reference by Book to Amburn to having been dis-
charged by Mitchell would have been vehemently denied by Amburn,
not merely not "recalled " And, indeed, four pages too late, Amburn was
overtaken by delayed vehemence "He told me that there was a slight
problem , but he certainly didn't mention anything about being dis-
charged"
Passing these contradictions , I think it quite possible that Book may
have told Amburn about his discharge Such an admission by Book could
equally account for the otherwise oddly emphatic allusions by Amburn at
the hearing to the "common knowledge," early on, that Book was "cer-
tainly not going to be brought on as a full time employee " Moreover, it
defies human nature to believe that Book, in asking for a permanent job,
merely told Amburn that he had experienced a "slight problem" at
Mitchell and that Book did not insist on knowing what the problem was
1147
Finally, on the point of Baker's affidavit statement that
the described conversation was the "only one I can
recall having with Amburn in which Book's having filed
a grievance was discussed," I take note that Amburn
made testimonial references to "some conversations" and
"discussions" with Baker about the grievance (Tr. 32,
120).
On the basis of the foregoing considerations, I find
that the evidence preponderates in favor of a finding that
Amburn told Baker that Book could continue as a casual
if he withdrew his grievance. This finding, of course,
lends considerable support to the allegation that Book's
prosecution of the grievance led to his disqualification. i 2
Further support may be derived, I think, from the fact
that Respondent chose to send a formal letter telling
Book that he was disqualified. Amburn conceded that no
such notification is required-that a casual may be "dis-
qualified" simply by ceasing to call upon him-and that
this latter procedure is the one normally employed.
Amburn testified, however, to one previous occasion,
dust as he came to Louisville, involving "a flare up with
a casual [on a customer dock], and there was a letter that
was issued to that casual by my predecessor...." Such
a precedent might seem a very material evidentiary item
tending to ameliorate the extraordinary, and therefore
vindictive, implication of the letter in the present case. It
might also seem plain to experienced counsel that a copy
of such a letter should be introduced into evidence, or its
absence explained. Neither effort was made. The failure
to follow up this point, together with my deep-seated
doubts about Amburn's reliability, leave me dubious
about the existence-now or ever-of such a document.
Similarly, Amburn's testimony that he was "advised"
by Charles Schmaltz, Respondent's regional labor coun-
sel based in Chicago, to issue the letter to Book, was not
confirmed by Schmaltz, who did not appear as a witness.
I find it difficult to believe that a presumably experi-
enced labor counsel would advise the unusual and eye-
catching step of formally disqualifying a grievant whose
hearing was to be held in less than a week. Respondent's
brief states, without testimonial support, that "[t]his
atypical notice procedure was called for by atypical cir-
cumstances, i e, that Book , a casual , was already in-
volved in the grievance procedure." I have been unable
to extract any meaning from this sentence other than the
suggestion that Book has disqualified because he had
filed a grievance (which I am sure is not the intendment
of the argument).
At the hearing, Amburn was asked by Respondent's
counsel about the consequences of using Book as a
casual driver "after you had verified information that he
had falsified the employment application," and he said
that Book "most likely would have gained seniority;"
and he also agreed that his use of a casual "knowing of a
specific problem" would preclude him from disqualifying
that casual, because of that problem, in the future.
Amburn was not asked to explain the basis for these
legal conclusions. It seems highly improbable that use of
12 The disqualification letter was dated February 11, the grievance
hearing was on February 17, the grievance was not sustained by the joint
committee
1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Book as a casual after gaining knowledge of his falsifica-
tion would somehow have made it "most likely" that
Book would then have "gained seniority," i.e., become a
regular; both Amburn and Baker testified that the em-
ployer's discretion in this matter is unbounded. As for
the asserted invulnerability to discharge stemming from
Respondent 's employment of Book after "knowing of a
specific problem," Amburn did continue to use Book as a
casual after admittedly being told by Roger Bales, cer-
tainly a reliable source , that Book "had been discharged"
by Mitchell; such "knowing of a specific problem" obvi-
ously did not operate so as immediately to prevent the
disemployment of Book.
The question arises : why would Respondent have been
so disturbed by Book 's filing of a grievance • that the
filing would have played some part in the disqualifica-
tion? After all, the most reliable evidence of record
(given by Baker) is that grievances are filed intermittent-
ly, perhaps on the average of once a month . The source
of these dozen annual grievances , however, is a comple-
ment of some 17 regular drivers, and an unknown
number of office and dock employees . There are 60 or
more casual drivers employed each year, and Baker and
Graves, each of whom had been employed for a quarter-
century, could not recall a grievance having been filed
by a casual prior to Book's doing so . It seems reasonable
to infer that Amburn (and Schmaltz) would be displeased
by Book's tilling the ground which might serve as a
seedbed for the filing of grievances by a group of 60-odd
casuals.
The particular facts of the case also leave a strong im-
pression that Amburn was motivated by something more
than the fact that Book had falsified his application. Put-
ting aside for now my opinion that Amburn had become
acquainted with Book 's lies long before January 1988,
Book had worked for the Company without blemish or
error, so far as the record shows , for a total of some 4
years and 4 months, all but 1 year of which directly pre-
,ceded his discharge , and more than 2 years of which
were under Amburn's charge. Book must have been re-
garded as reliable and valuable; Amburn testified that
during his tenure, only "from 5 to 8" casuals , of the 60
annual casuals, worked as steadily as Book . While I
cannot question, in the abstract, the right of an employer
to rid itself of an employee who falsifies his application,
it does seem that there would come a time , after several
years of stable , responsible employment, that the fact of
an aged falsification would not be held so harshly against
an employee who has proved faithful and useful.
Amburn did not even know until after he "disqualified"
Book what it was that Book had been discharged for, and
he did not bother to inquire of Book either about those
details or, indeed , about the veracity of, or mitigating
circumstances surrounding, the bare information he had
received. 13
Respondent's application form does not state that any
falsification "will" result in discharge ; it says (with em-
phasis added here), "may, at the option of Consolidated
Freightways, render this application void and may also
constitute just cause for discharge ...." Thus, the Com-
pany implicitly recognizes that some falsifications may
not constitute grounds for discharge . The Company also
appears to have a rather liberal policy toward applicants
with criminal records . The application asks only' about
conviction of a crime "in the last five years" (and then
says-curiously, given the nature of the employment-
"(omit traffic violations)"), thereafter stating in bold let-
ters, "NO APPLICANT WILL BE EXCLUDED FOR
[sic] CONSIDERATION FOR EMPLOYMENT DUE
TO PRIOR CONVICTIONS."
Amburn told us about a casual named Paul Tucker
who, desiring to become a regular, had brought upp in a
preliminary interview that he had been convicted of as-
sault, but then had given Amburn a document which
showed that the conviction had been (Amburn 's word)
"retracted ." The document, produced at the hearing, is a
transcript of Tucker's Jefferson County, Kentucky police
record made up in June 1987 . It does not show that
Tucker's 1979 charge of "Asst II (WT)" was "retract-
ed," but rather that the police records showed no "dispo-
sition." The document also shows three other arrests of
the 43-year-old Tucker : at age 18 for breach of the peace
(fined $10); at age 28 for "Dest. Private Property" (no
disposition listed); and at age 34 for "DWI, RD, WE II"
(disposition shown as "AM RD PD $120 . 50 (Merge 07-
30-79)"). The latter charge appears to include driving
while intoxicated and reckless driving; whether Tucker
was convicted of those offenses is unclear , but the "AM
RD PD $ 120.50" sounds as if he was convicted of reck-
less driving ." Ambum made it clear that he was serious-
ly considering Tucker for employment as a regular
driver even after these revelations . 14 In fact, he did not
take Tucker on as a regular because he had an accident
and was disqualified-a preordained fate , Amburn testi-
fied , for casuals . Amburn 'did not, however, send a letter
to Tucker informing him of the decision, even though he
had been considering conferring regular status on him.
The foregoing factors-Book's lengthy and evidently
useful employment, Ambum's failure to even inquire into
the basis for the 1979 discharge before disqualifying
Book, the relative narrowness of the information sought
by the employment application, including an apparent
liberality even toward prior criminal convictions, the
consideration afforded the twice-convicted Tucker-all
suggest that the disqualification of Book was an unusual-
ly harsh penalty , judged against reasonable ,. and Re-
spondent's own, standards.
Respondent 's position is that Amburn was so offended
in 1988 by receipt of the information that Book , in 1984,
's The record shows that Mitchell fired Book in 1979 for failing to fuel
his tractor and park it, as instructed on May 24, and leaving the terminal
without advising the manager that he was doing so; and , on May 30, fail-
ing to lay over in Morehead , Kentucky , as ordered, and failing to have a
tire changed , also as directed by the department of transportation and
Mitchell , before returning to the terminal . The local union grieved the
discharge , according to Leaseway's Autry, taking the case to arbitration,
but losing it ultimately . Amburn never knew these facts or bothered to
discover that Book had a bad week in May 1979 which may have been
understandable. •
14 Tucker's convictions had not appeared on his application because
they were more than 5 years old . Obviously , the limitation in the applica-
tion question does not mean that Respondent was legally precluded from
hiring as a regular employee an applicant who, it discovered , had violat-
ed the law more than 5 years before.
CONSOLIDATED FREIGHTWAYS CORP. 1149
had lied about the nature of his termination from a job in
1979, that he permanently removed him from a position
which Book had performed competently for Respondent
for over 4 years.15 I do not believe this, for several rea-
sons.
Amburn's performance under oath at this hearing does
not leave me with the impression that he could possibly
be so sensitive to falsity. Secondly, I am, as discussed, in-
clined to think that Amburn was aware of the essentials
of Book's falsification long before the disqualification,
but did nothing until the grievance was filed. Third, Re-
spondent admittedly works casuals, as a matter of unvar-
ying procedure, without ever checking on the represen-
tations made in their application ; in my view , this is a
palpable demonstration of how minimal is Respondent's
interest in the veracity of the applications filed by the
casual workers. Finally, the whole congeries of facts
leave substantial doubt in my mind that, in 'ordinary cir-
cumstances, a rational employer would have behaved so
vengefully toward a known reliable employee. "Casual"
he might have been in classification, but for the preced-
ing three-plus years Book had, in effect, served as a part-
time regular, and from all appearances had served well. I
do not believe that this seemingly relaxed company
would treat this employee so shabbily without some
other reason which it now wishes to conceal, and I think
that reason is found in the filing of the grievance i 6
The fact that Amburn seemed sympathetic to Book be-
cause he told Baker that he did not want to prejudice
Book by having to bring out in the grievance hearing
what he "had" on Book, does not, in the end, seem to
help Respondent's case. Amburn also testified that he be-
lieved that the grievance was ill-founded (and therefore
the background falsification unnecessary to defeat the
grievance), but he displayed a rather contradictory lack
of sympathy by testifying that if he, rather than labor
counsel Schmaltz, had "given the presentation, maybe I
would have brought that [background] out in the com-
mittee .." This, despite the fact that Schmaltz had
told Amburn not to divulge the information to anyone,
and despite Amburn's asserted opinion that "there was
nothing in the information that I had on Mr. Book . . .
that pertained to the grievance whatsoever "
On the foregoing analysis, I conclude that Book's
filing of the grievance was, at the least, a "motivating
15 Respondent 's dispatcher Graves testified that he recommended at
one point that Book also work for a company called Louisville Shelby-
ville, which he did
16 Respondent relies upon NLRB v Florida Steel Corp, 586 F 2d 436
(5th Cir 1978), in which the employer purportedly discharged an em-
ployee for what may truly be described as a "massive" falsification of his
application form Despite that fact, the Board upheld the administrative
law judge in concluding that the discharge of the employee was unlaw-
fully motivated, 231 NLRB 651, but the Fifth Circuit disagreed Aside
from the fact that I am bound to follow and apply Board law, Iowa Beef
Packers, 144 NLRB 615, 616 (1963), the facts in each of these cases are
decisively different I note that the court of appeals lays its heaviest em-
phasis in Florida Steel upon the employer's showing that, in five other
instances, it had discharged employees who were discovered to have fal-
sified their applications Although the Louisville terminal here has been
in operation for at least 25 years, Respondent did not offer evidence that
at any time during its industrial life has it discharged an employee for
falsifying an application I hasten to add that there is no proof that the
occasion for doing so ever arose, but I would find it truly remarkable if
Book ' s was the first such case in a quarter century or more
factor" in Respondent 's decision to disqualify Book as a
casual employee . NLRB v. Transportation Management
Corp., 462 U.S. 393, 401 (1983). Indeed ; I find that it was
the dominating factor , and I further find that Respondent
has failed to carry any burden that might be available to
it in this case to show that, even absent the invocation
by Book of the grievance procedure , it would nonethe-
less have disqualified Book.
III. THE PROTECTED NATURE OF THE ACTIVITY
Respondent's argument on the merits is strictly moti-
vation-oriented; it makes no contention that Book's filing
of the grievance was not protected by Section 7. I
assume from this that, having assessed the facts, Re-
spondent has concluded (as have I) that there would be
nc) point in advancing any legal arguments. In view of
this, I see no purpose to be served by a prolonged dis-
cussion of the legal principles.17
IV. THE FAILURE OF BOOK TO APPEAR AT THE
HEARING
As discussed, Book did not appear at the hearing, al-
though he had received a subpoena from both General
Counsel and Respondent; according to a representation
by counsel for General Counsel, Book had called in to
say that his current job had delayed him in Pennsylvania.
Respondent asked for a continuance of the hearing in
order to produce Book as a witness for the sole purpose
of showing "the massive extent to which he's falsified
this application." I stated that I was prepared, on the evi-
dence already presented, to find that Book did falsify the
application by saying that he was "laid off," rather than
discharged, by Mitchell Transport, and, as well, by deny-
ing that he had ever been discharged from any position.
Respondent's counsel stated, however, that he also
wanted to establish that Book had deliberately lied by
showing his employment at Mitchell Transport as "97-9"
to "10-80," instead of what was apparently the correct
period of August 1978 to May 1979 (see R. Exh. 5), and,
further, by identifying his supervisor as "Dave Shilling."
On brief, Respondent revives this issue at length, con-
tending that testimony elicited from Book would have
17 I would note, however, that I am unable to find any provision in the
master or supplemental agreements which, as General Counsel asserts on
brief (p 3), limits the applicability of the grievance procedure to "any
controversy involving employees on the seniority list " Nor do I agree
with General Counsel's conclusion that "casuals do not have standing to
file a grievance over a discharge" (Br 9) Both the Master and Supple-
mental Agreements provide that "[c]asuals shall not be discriminated
against for future employment" (R Exh 2 , pp 12, 92) If this language is
not to be regarded as meaningless, it must provide an enforceable right to
casuals , at least against "discrimination "
While it is true, as General Counsel states, that the two contracts limit
invocation of the grievance procedure to an "authorized Union represent-
ative," the record indicates that Respondent processed Book's grievance
to a hearing without raising any question as to propriety of its procedural
genesis (and also that Baker effectively ratified the filing-he "knew that
[Book] was going to file" the grievance, and he told Amburn, at the time
the grievance was filed, that he wanted to "try to help the man, defend
him ") In addition, Baker testified, without controversion, that
casual employees "are covered by the contract," and neither in Amburn's
answer to Book's grievance nor at the hearing was any question raised
about the propriety of the manner in which Book's grievance had been
filed
1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
concerned "the extent and purpose of his falsification of
his employment application and his later failure to fur-
nish necessary information," and would also have been
used to prove that he lied in order to obtain employment
"through subterfuge and to make a complete background
check impossible. . . ." Why Book's testimony would
have been necessary to establish the "purpose" of his fal-
sification is unclear; the purpose undoubtedly was, as Re-
spondent asserts, an effort to deceive (and probably to be
consistent with his first application to Respondent in Oc-
tober 1980 (or 1979-the record is confused on this date,
and neither side produced that application). The refer-
ence to Book's "later failure to furnish necessary infor-
mation" is, to put it mildly, amusing, in view of Am-
burn's testimony that he "would not answer" Book when
the latter inquired about the nature of Amburn's problem
with making the background check on Book.18
The claim that Book's other errors were designed "to
make a complete background check impossible" is rather
farfetched, in view of the fact that Book did give the
correct name of Mitchell Transport, and the work loca-
tion, on the form . Those facts were the key to every-
thing, even though Amburn mysteriously chose to refuse
to reveal to Book what information he now tells us he
required about Mitchell. Amburn says that he got hold
of Mitchell,-as we have seen above, in a matter of days
with a series of phone calls after the grievance was filed
in January 1988 (in 1986, he had closed out his investiga-
tion by looking in a Louisville telephone directory).19
Surely, having given on the application the proper name
and location of his employment- with Mitchell, Book
could not have expected to nullify the usefulness to Re-
spondent of those critical disclosures by "deliberately
lying" about the precise parameters of the brief period
during which he had worked for Mitchell more than 5
years before, or about the name of his supervisor
there .20
None of the cases cited by Respondent at page 14 of
its brief supports, in the circumstances of this case, the
requested "dismissal of the charge" or "loss of status as a
Charging Party" (and, indeed Teamsters Local 554 (Prai-
rie Ford), 253 NLRB 1, 2 (1980), where the administra-
tive law judge refused to dismiss the complaint based on
the failure of the Charging Party's president to honor
two subpoenas, giving as his rationale that "there are
matters of public policy being litigated here," seems to
cut the other way). I suppose it would be appropriate to
18 Respondent also states on brief, without a shred of support in the
record, that Book "was aware that Mitchell's Louisville operation had
closed "
19 Leaseway official Autry testified that in October 1986, Mitchell was
a company doing about $35 million in business, with terminals in Tusca-
loosa and Mobile, Alabama, Joliet, Illinois, Union Bridge , Maryland,
Oxford, North Carolina, and Mitchell, Indiana Undoubtedly, a phone
call to any trucking association, or to the Teamsters, could have un-
earthed Mitchell
20 The "Dave Shilling" I referred to in the application may well have
been "David M Sokol," the Mitchell terminal manager who signed the
June 1979 termination letter (R. Exh 3). In any event, Respondent's brief
misstates the record in saying that Autry "testified (Tr 87-88) there was
no mention of a supervisor by the name of David Shilling employed at
Mitchell or reflected in Book's personnel file " At the cited pages, Autry
is only asked whether he saw in Book's personnel file the name of a su-
pervisor named Shilling, to which he replied, "Not that I remember, no "
at least draw "adverse inferences" against Book, as Re-
spondent alternatively asks, although I do not believe
that Book deliberately flaunted the process (his appear-
ance at the unemployment compensation appeal in Ken-
tucky 3 days later leads me to so believe). I have drawn
against Book the only adverse inference important to this
case: that Book lied about the nature of his severance
from Mitchell in 1979-that fact was the only reason
known and given by Amburn for the 1988 disqualifica-
tion, and the other items are both irrelevant and trivial
(and, if misstatements, most likely not deliberately con-
trived to deceive).
CONCLUSIONS OF LAW
1. Consolidated Freightways Corporation is an em-
ployee engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. General Drivers, Warehousemen and Helpers Local
Union No. 89, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen, and Helpers
of America, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. By disqualifying Christopher L. Book from casual
and other employment on February 11, 1988, Respond-
ent violated Section 8(a)(3) and (1) of the Act.
4. By telling an employee, in February 1988, that an-
other employee would not be able to obtain casual work
if he pursued a grievance, Respondent violated Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act .
THE REMEDY
I shall recommend certain remedial relief in order to
restore the status quo ante
Having found that Respondent unlawfully disqualified
Christopher L. Book from casual employment beginning
February 11, 1988, I shall recommend that it be ordered
to offer him immediate reinstatement to his former casual
employment , without prejudice to his rights and privi-
leges, and to make him whole for any loss'of earnings he
may have suffered from the foregoing date to the date of
Respondent 's offer of reinstatement , with interest, in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289
(1950), and New Horizons for the Retarded , 283 NLRB
1173 (1987).21
I shall also recommend that an appropriate cease-and-
desist order be issued and that Respondent be required to
post the traditional notices.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed22
21 Interest shall be computed at the "short-term Federal rate" for the
underpayment of taxes as set out in the 1986 amendment to 26 U S C
§ 6621
22 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
CONSOLIDATED FREIGHTWAYS CORP. 1151
ORDER
Consolidated Freightways Corporation of Delaware,
Louisville, Kentucky, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging, disqualifying, or otherwise discrimi-
nating against employees because of their filing of griev-
ances under a collective-bargaining agreement
(b) Impliedly threatening employees for prosecuting
grievances under a collective-bargaining agreement.
(c) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of
their rights to self-organization, to form, join, or assist
any labor organization, to bargain collectively through
representatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any
and all such activities
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Immediately offer to Christopher L. Book full rein-
statement to his former position of casual employment,
without loss of privileges enjoyed, discharging if neces-
sary other employees who may have been hired in his
place.
(b) Make Christopher L. Book whole for any loss of
wages and other benefits, plus interest, suffered as a
result of his being refused employment by reason of the
discrimination against him, in the manner set forth in the
remedy section of this decision.
(c) Expunge from its files any references to the dis-
qualification of Book in February 1988, and notify him in
writing that this expunction has been made and that evi-
dence of this unlawful termination will not be used as a
basis for future personnel actions against him
(d) Preserve, and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary or appropriate to analyze the amount
of backpay due.
(e) Post at its place of business in Louisville, Ken-
tucky, copies of the attached notice marked "Appen-
dix."23 Copies of the notice, on forms provided by the
Regional Director for Region 9, after being signed by
Respondent's authorized representative, shall be posted
by it for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, ,loin, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT discharge, disqualify, or otherwise dis-
criminate against any employee, because of their filing of
grievances under a collective-bargaining agreement.
WE WILL NOT impliedly threaten employees for pros-
ecuting grievances under a collective-bargaining agree-
ment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their rights under the National Labor Relations Act.
WE WILL offer Christopher L. Book immediate and
full reinstatement to his former position of casual em-
ployment; WE WILL compensate him, with interest, for
any loss of pay he may have suffered because of our un-
lawful action against him, and WE WILL remove from
our personnel files any reference to the disqualification
of Book in February 1988 and notify him of this action
and of our intention not to rely upon such disqualifica-
tion in future personnel actions.
CONSOLIDATED FREIGHTWAYS OF DELAWARE
23 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relation Board" shall read "Posted by Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relation Board "