E & L Transport Co.

National Labor Relations Board - Board Decisions

Oct 18, 1994

315 N.L.R.B. 303 (N.L.R.B. 1994)

303
315 NLRB No. 43
E & L TRANSPORT CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of the evidence convinces us that they are incorrect. Stand-
ard 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.
We note that the judge incorrectly stated that the Respondent’s ter-
minal manager, Al Schaeffer, asked Nancy Norton during her inter-
view for the confidential secretary position why she was not a union
member; rather, the Respondent’s management representative, Terry
Hoeft, asked Norton this question. We also note that contrary to the
judge, there is no evidence that the Respondent interviewed anyone
for the data entry clerk positions in July 1990. We further note that
the judge incorrectly stated that Kathleen Williams, whom the Re-
spondent hired as a dispatch supervisor on July 25, 1990, did not
receive her job description for that position until 1 week before testi-
fying in this case; rather, the record indicates that she received her
job description before she began working for the Respondent. We
also find it unnecessary to rely on the judge’s characterization of
employees James Houseman and Lisa Buschman as clerical employ-
ees.
2 In adopting the judge’s finding that Dispatch Supervisor Vern
Joyner is not a statutory supervisor within the meaning of Sec. 2(11)
of the Act, we note that although Joyner initally approves or dis-
approves drivers’ pay requests, the requests then must be reviewed
and signed by the Respondent’s terminal manager or assistant termi-
nal manager. Further, to the extent that Joyner has occasionally
issued warnings which are not automatic pursuant to regulations or
the contract, such incidents have been isolated and sporadic and are
insufficient to indicate that Joyner is a supervisor within the meaning
of Sec. 2(11).
3 The judge failed, however, to make a specific finding regarding
whether this position was actually a confidential position under the
Board’s ‘‘labor nexus’’ test, under which only those employees who
act in a confidential capacity to persons exercising managerial func-
tions in labor relations matters are confidential employees. NLRB v.
Hendricks County Rural Electric Corp., 454 U.S. 170, 189 (1981);
Crest Mark Packing Co., 283 NLRB 999 (1987).
4 Peerless of America v. NLRB, 484 F.2d 1108 (7th Cir. 1973).
5 NLRB v. Wheeling Electric Co., 444 F.2d 783 (4th Cir. 1971).
6 Sec. 2(3) of the Act specifically excludes ‘‘supervisors,’’ as de-
fined in Sec. 2(11), from the definition of ‘‘employee.’’
7 The Board in Pacific American, supra, drew a distinction, how-
ever, between nonemployee applicants and present employees of an
employer who are seeking a promotion to a supervisory position,
stating that a refusal to accord an actual employee the normal con-
sideration for promotion to a supervisory position based on protected
concerted activity during such employment would clearly be a viola-
tion of the rights of nonsupervisory employees. See Pacific Amer-
ican, above at 597.
E & L Transport Company and Local 710, High-
way Drivers, Dockmen, Spotters, Rampmen,
Meat Packing House and Allied Products Driv-
ers and Helpers, Office Workers and Mis-
cellaneous Employees, Chicago/Vicinity, Illi-
nois. Case 13–CA–29431
October 18, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On December 16, 1992, Administrative Law Judge
Russell M. King Jr. issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a reply brief to the Re-
spondent’s exceptions. The Respondent also filed a
brief in reply to the General Counsel’s reply brief to
the Respondent’s exceptions.
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
One of the positions for which the judge found that
the four discriminatees here should have been consid-
ered was that of confidential secretary.3 The judge re-
jected the Respondent’s argument that because a con-
fidential employee position is outside the bargaining
unit and arguably not protected by the Act, none of the
discriminatees could have been considered for the con-
fidential secretary position because of their union
membership. Rather, the judge found that the fact that
an individual is a union member should not preclude
him or her from being considered and possibly hired
for a confidential position where that person could not
be a union member, because to so preclude that person
would unlawfully discriminate against that individual
because of his or her union membership. The judge
noted that even if a position requires exclusion from
the Union, the individual being considered can deter-
mine for himself or herself if it is worth giving up
union membership for the position.
The Respondent argues that the Board should adopt
the approach of the Seventh Circuit4 and the Fourth
Circuit5 and find that confidentials should be excluded
from the protection of the Act because they should be
viewed as ‘‘supervisors’’ within the meaning of Sec-
tion 2(3) of the Act.6 The Respondent further notes
that current Board law holds that when Congress
amended the Act to exclude supervisors from the defi-
nition of the term ‘‘employee,’’ it denied to those
seeking as well as to those holding supervisory jobs
the protection of Section 8(a)(3) of the Act. Pacific
American Shipowners Assn., 98 NLRB 582, 596–597
(1952); Ace Machine Co., 249 NLRB 623, 624 (1980);
St. Anne’s Hospital, 245 NLRB 1009, 1009–1010
(1979).7 The Respondent contends that the Board
should apply the same reasoning to applicants for con-
fidential positions, and that thus the discriminatees
here should not be entitled to the Act’s protection in
applying for the confidential secretary position.
Assuming arguendo that the confidential secretary
position here would be a confidential position under
the Board’s labor nexus test, we find nevertheless that
applicants for confidential positions are within the
304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 In this regard, the Court stated that this construction of the Act
expressed the conviction of Congress ‘‘that disputes may arise re-
gardless of whether the disputants stand in the proximate relation of
employer and employee, and that self-organization of employees
may extend beyond a single plant or employer,’’ citing H.R. Rep.
No. 1147, 74th Cong., 1st Sess., p. 9. 313 U.S. at 192.
9 Briggs Mfg. Co., 75 NLRB 569, 570 (1947). Cf. Star Tribune,
295 NLRB 543, 546 fn. 10 (1989).
Note that while the Eighth Circuit denied enforcement on other
grounds in Town & Country v. NLRB, above, the court stated that,
‘‘[a]pplicants for employment, however, have long been considered
to be employees under the Act,’’ citing Phelps Dodge Corp., above.
10 Thus, an employer would have to show more than mere mem-
bership in a union or past union activities in order to disqualify an
applicant for being considered for a confidential position; rather, the
employer would have to prove by objective evidence that it has rea-
sonable grounds for believing that an applicant will be disloyal or
will impair business operations.
11 In view of our disposition of this case, we find it unnecessary
to pass on the continuing viability of Pacific American’s majority
holding that nonemployee applicants for a supervisory position are
not protected by the Act.
Also, in view of our disposition of this case, we find it unneces-
sary to consider the issue of whether the Act’s protections extend
to confidential employees. Emanuel Hospital, 268 NLRB 1344 fn.
1 (1984).
1 The term ‘‘General Counsel,’’ when used herein, will normally
refer to the attorney in the case acting on behalf of the General
Counsel of the Board through the Regional Director of Region 13
of the Board.
2 Unless otherwise noted the occurrences herein occurred in 1990.
3 The Charging Party, on August 7, 1991, filed a motion to correct
the transcript, agreed to by the General Counsel and not opposed by
Respondent. The motion is granted and received in evidence as ALJ
Exh. 1. These errors in the transcript have been noted and corrected.
Act’s definition of ‘‘employee’’ under Section 2(3)
and are entitled to the Act’s protection against a dis-
criminatory denial of employment based on their past
protected concerted activities. In Phelps Dodge Corp.
v. NLRB, 313 U.S. 177, 182–187 (1941), the Supreme
Court broadly interpreted the Act to include applicants
for work as well as actual hires within its protections,
noting that, ‘‘[d]iscrimination against union labor in
the hiring of men is a dam to self-organization at the
source of supply. The effect of such discrimination is
not confined to the actual denial of employment; it in-
evitably operates against the whole idea of the legit-
imacy of organization.’’ 313 U.S. at 185. The Court
also noted that an embargo against employment of
union labor was one of the chief obstructions to collec-
tive bargaining through self-organization, and thus the
prohibition in Section 8(a)(3) of the Act against ‘‘dis-
crimination in regard to hire’’ must be applied as a
means toward the Act’s object of removing such ob-
structions. 313 U.S. at 186. The Court further noted
that Section 2(3) of the Act encompassed a ‘‘broad’’
definition of ‘‘employee,’’ and excluded from that def-
inition only those explicitly so excluded in the Act.8
313 U.S. at 192. Similarly, as discussed in Town &
Country Electric, 309 NLRB 1250, 1255 (1992), enf.
denied on other grounds docket No. 92–391 (8th Cir.
1994), the Board has interpreted the term ‘‘employee’’
broadly to ‘‘include members of the working class
generally,’’ and has found that Section 2(3) includes
applicants for employment.9 Assuming arguendo that
an employer were able to require that an employee
give up his or her union membership once the em-
ployee assumes a confidential position, an employer
cannot refuse to hire an applicant for a confidential po-
sition because of past union membership or activi-
ties.10 Thus, contrary to the Respondent’s argument,
we decline to apply Pacific American to applicants for
a confidential position.11 In this regard, we note that
unlike supervisors, confidentials are not expressly ex-
empted from coverage under Section 2(3) of the Act.
Accordingly, we agree with the judge that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
refusing to consider for hire and refusing to hire any
of the four discriminatees for the confidential secretary
position.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, E & L Transport Com-
pany, Chicago, Illinois, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Scott A. Gore, Esq., for the General Counsel.1
R. Ian Hunter, Esq. (Dean & Fulkerson), of Troy, Michigan,
for the Respondent.
Susan Brannigan, Esq. (Asher, Gittler, Greenfield, Cohn &
D’Alba, Ltd.), of Chicago, Illinois, for the Charging Party
Union.
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING JR., Administrative Law Judge. This
case was tried in Chicago, Illinois, on April 8, 9, and 10 and
June 11 and 12, 1991.2 Local 710, Highway Drivers,
Dockmen, Spotters, Rampmen, Meat Packing House and Al-
lied Products Drivers and Helpers, Office Workers and Mis-
cellaneous Employees Chicago/Vicinity, Illinois (the Union
or Charging Party) filed the charge in this case on April 27
and the complaint was issued on June 29, amended on De-
cember 7, and further amended during the trial of this case.
The issue in this case is whether E & L Transport Com-
pany (E & L, the Company, or the Respondent) refused to
consider Dawn Szczepaniak, Kathleen Parker, Rebecca Pyka,
and Kathy Williams for employment because they were
members of the Union.
On the entire record3 in this case including my observation
of the demeanor of the witnesses, and after consideration of
the briefs filed by all parties, I make the following
305E & L TRANSPORT CO.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Michigan corporation with terminals
in various States, including the Chicago, Illinois terminal
which is the site of the allegations in this matter. Respondent
is engaged in the business of interstate and intrastate trans-
portation of motor vehicles and annually derives gross reve-
nues in excess of $50,000 for the transportation of such
freight in interstate commerce pursuant to its arrangements
with Ford Motor Company and other automobile shippers.
As admitted, I find that the Respondent is engaged in
interstate commerce within the meaning of Section 2(2), (6),
and (7) of the National Labor Relations Act (the Act), and
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
Prior to April, Nu-Car Carriers was the principal interstate
carrier for Ford products at its Chicago terminal and em-
ployed drivers, mechanics, and an office force of six clericals
including the four alleged discriminatees. Respondent was a
secondary carrier for Ford in Chicago and employed some
drivers, a terminal manager and two clericals. A new contract
was awarded to E & L in the beginning of 1990 and it was
scheduled to take over as the principal carrier in February or
March. It was unable to do so at that time and Nu-Car con-
tinued in operation through the end of March. Both Nu-Car
and E & L had contracts with the Union, E & L only for
its drivers, while Nu-Car had a contract for the drivers, me-
chanics, and for its office personnel.
With the change in the contract a grievance meeting was
scheduled and held in Arlington, Virginia, to discuss and
reach a decision on the liability of E & L with regards to
those being displaced by the new contract. At the March 7
and 8 meetings E & L agreed with the Union to hire, as
needed, the drivers from Nu-Car providing that they made an
application within a 1-week period. It also agreed to hire me-
chanics from Nu-Car’s group of employees as needed, and
both parties agreed that the two units would be covered by
their overall contract.
The National Master Automobile Transport Agreement,
which covered both Nu-Car and E & L, provided that where
two companies shared traffic from a shipper and one of the
companies was canceled, such as happened to Nu-Car here,
and assigned to the other, that the seniority list for both was
to be dovetailed from the loser into the new assignee. It was
on that basis that the decision was made at Arlington con-
cerning the dovetailing of employees’ by seniority.
The Union sought to have E & L hire the clerical employ-
ees who were covered by the contract but E & L refused.
During the arbitration proceeding which followed this agree-
ment, the agreement was confirmed and the arbitration panel
stated that it was not under contractual obligation to hire the
clerical employees since it did not have a union office. E &
L maintained that it had a sophisticated computer system
which would enable it to operate the terminal with no in-
crease in the number of clericals it then had. E & L said it
would reassess the office situation later.
E & L hired a number of drivers and mechanics and basi-
cally moved into the terminal area being vacated by Nu-Car
and began operations around April 1. At that time its termi-
nal was being run by Al Schaeffer, with the assistance of
clerical employees James Houseman and Lisa Buschman.
Wade, who was the union business agent, in conversations
with the E & L in Arlington tried to persuade them of the
abilities of the Nu-Car staff and that they would be of great
help to E & L in taking over the business.
B. Specific Violations
On March 29, Union Representative Wade, with driver
and Shop Steward Bob Brown met with E & L Terminal
Manager Al Schaeffer to determine how many drivers the
Company would be hiring. Schaeffer said he did not know
and thought it would be about 50 and that they would be fix-
ing and cleaning up the garage before they called the me-
chanics.
Wade asked about their hiring the office personnel.
Schaeffer said they were fully automated and did not need
the office people. Wade replied that was ridiculous since
they had three people to handle the small volume they had
before and with the huge increase in volume they would cer-
tainly need more people. He went on to say that the Nu-Car
people were qualified and knew the work and the customers.
Schaeffer replied that we may hire some of the office people
but we will not hire the union office people. Wade asked
what he said and Schaeffer repeated it. Brown corroborated
this testimony.
Prior to this time Schaeffer had instructed James House-
man, a clerical employee called a check-in supervisor, to de-
termine which of the clerical employees at Nu-Car were
Union and which were not. Houseman testified that he went
to the Nu-Car terminal quite frequently concerning making
up loads and knew their clericals. He said he thought that all
of them were union, but at Schaeffer’s instruction asked Pat
Garcia about it and she said that she and Nancy Norton were
the only nonunion clericals. He asked why and she said that
in her position as a confidential secretary she could not be.
He returned to Schaeffer and repeated this and told him that
only Norton and Garcia were not union and the rest were.
Schaeffer then told him to go back to Nu-Car and very dis-
cretely get resumes from Norton and Garcia. He returned and
got them to fill out resumes which he took back to Schaeffer.
Houseman testified that during March he heard Schaeffer
say that when they got all the clerical employees they needed
it was going to be a nonunion office.
Fellow employee Lisa Buschman testified that during
March she heard E & L’s vice president, Aikens, conversing
with Schaeffer and they said it would be a nonunion office
that would not have any union employees.
I find that the statement by Terminal Manager Al Schaef-
fer, which was not denied, violated Section 8(a)(1) of the Act
as alleged in paragraph V of the complaint, in stating before
employee Brown that the Company would not hire any union
office clerical employees. E & L Terminal Manager Schaef-
fer testified that he did know which of the Nu-Car employees
were Union and which were not, which in essence confirms
the testimony of Houseman, and that employees Norton and
Garcia had been asked to submit resumes.
Garcia was interviewed by Schaeffer and E & L Vice
President Aikens and was asked why she was not in the
306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union. She replied that she had access to personnel files and
was therefore not allowed to be in the Union. She was told
to fill out an application and take a physical. She was later
told that the job that she had been applying for was filled
by Norton.
Norton testified that she was interviewed and was asked
by Schaeffer why she was not a member of the Union. She
told him that she was not interested in the Union. She was
then invited to fill out an application and sent for a physical
and hired. Although she was told she was going to be a con-
fidential secretary, during the week that she worked for the
Company she did dispatch work, computer entries, and
phone work and did only two short memos for Schaeffer.
She was terminated at the end of the week and was told that
she did not have the requisite skills the Company wanted.
Her termination is not in issue in this case.
During the second week of April, Al Schaeffer was re-
placed by Ronald O’Reilly as the terminal manager and Bill
Schaeffer was brought in as the assistant terminal manager,
with Al Schaeffer being transferred elsewhere. At the same
time an order was placed by E & L to Kelly Temporaries
for clerical employees.
On April 6, E & L placed an order with Kelly Temporary
Services for data entry clerks and two persons were sent on
April 9 and were replaced on April 10 by Janice Burks and
Judy Nelson. After she had worked there for a week or more,
Nelson was interviewed by Respondent for a job on a perma-
nent basis and was hired as a confidential secretary. From
April through September Kelly Temporary Services provided
at least two data entry clerks and Manager O’Reilly did not
interview any persons for those positions until July. The
records from Kelly Services show that during the period
from April through August that at least 10 different individ-
uals were sent to work at E & L to perform various services.
The four alleged discriminatees prepared resumes at Union
Representative Wade’s urging and presented them to E & L
where they were on file from late March or early April. In
April O’Reilly met with Wade and Union Steward Bob
Brown, who was an E & L driver, to discuss the discharge
of a driver. Following the discussion Wade asked O’Reilly
if he would hire some of the four clericals who had not been
interviewed or hired by E & L. O’Reilly said that if he hired
them, they would be nonunion.
In late May two of the four clericals, together with the
wives of some of the drivers who had not been hired, put
up a picket line outside of E & L. O’Reilly called for Wade
to see if the Union sanctioned the picketing. Wade was in
Michigan engaged in business and was reached at a plant. A
telephone conversation took place with Union Steward
Brown present in the office, with O’Reilly using a
speakerphone, and Wade in Michigan. Wade was informed
of the picketing and said that he knew nothing about it. The
picketing to some extent had apparently been caused by the
Company’s placing an ad in a local paper seeking dispatch
supervisors, which was the generic term for work that some
of these clericals had done for Nu-Car.
During the phone conversation Wade again asked O’Reilly
to hire some of these clerical employees because they knew
the job and were well qualified. O’Reilly said he had placed
an ad in the newspaper for office people and Wade could tell
the former Nu-Car people to put in their resumes but if they
were hired they would not be union.
I find that O’Reilly’s two undenied statements to Wade,
in front of employee Brown, that if any of the four
discriminatees was hired, they would be nonunion, was a
threat to deny employees their rights under Section 4 of the
Act, and thus violative of Section 8(a)(1) of the Act, as al-
leged in paragraph VI of the complaint.
In June E & L began interviewing to fill some positions.
Among those interviewed were Vern Joyner and Kathleen
Williams (one of the four alleged discriminatees). Neither
Kathy Parker nor Rebecca Pyka was interviewed by E & L.
Pyka had an interview scheduled but it was canceled by the
Company. She later complained that she had not heard from
E & L. O’Reilly told her they had tried to contact her five
or six times but that she never returned their calls. Pyka tes-
tified that she had an answering machine which was in work-
ing order, that she tried it from the office and it was still
working, denied that she had ever had any messages from E
& L, and so informed E & L by a letter stating she was still
interested in working for them. She still did not hear from
E & L, who offered no explanation for not interviewing
Parker or Pyka.
Dawn Szczepaniak had given a resume to E & L in mid-
March and was not called until she was asked to come in
for an interview on June 20. O’Reilly interviewed her about
her job skills, work history, attendance, and computer skills.
She told him she was completing computer school and was
asked to come back for a second interview but then was not
hired.
O’Reilly admitted that he did not look at the resumes for
any of the four discriminatees back during the days when he
was using Kelly Temporaries for data entry and other work.
He knew that the resumes were there and equivocated some-
what in regard to whether there was work that needed to be
done. He finally admitted that he had two temporary employ-
ees doing data entry work into August and September. De-
spite having the resumes of people who had done the work
before, he said he put ads in the newspaper because he want-
ed to see what was available.
Kathleen Williams, whose resume had been with the Com-
pany since mid-March, was interviewed around June 20 on
several occasions and was hired on July 25. She testified she
received her job description 1 week before testifying in this
matter. She was offered a position called dispatch supervisor
and was told that as such she would not receive overtime.
O’Reilly maintained that there was no distinction between
the jobs of Joyner and Williams.
Williams testified that 95 percent of her work was entry
of plant and rail inventory into the computer system, making
of loads, checking logs, and doing some check-in, and that
she learned the computer system in 1 day. She testified that
Joyner spent most of his time at the check-in window check-
ing in drivers and dispatching loads and that although sup-
posedly they had the same job description they did basically
different things. She said that he did not do inventory or load
makeup and was only a two-finger typist and did not do
much work on the computer. At the beginning she corrected
some of the entries he made in the computer system but he
became more skilled since that time. Williams distinguished
the job description prepared by E & L from what she actu-
ally did, by stating that she had no supervision over drivers
and that there was no judgment called for in issuing rep-
rimands to drivers who were driving over the limit of hours
307E & L TRANSPORT CO.
prescribed by the Department of Transportation (DOT). The
Company has a list of 11 things that must be completed
when a driver checks in, and in going over these items the
dispatch supervisor checks the logs to make sure the em-
ployee has not driven more than the prescribed 70 hours in
8 days and that there is sufficient time left, according to his
logs, to pull another run.
There was a considerable difference in the testimony of
Joyner and Williams. Joyner’s testimony contained a lot of
judgmental words wherein he described himself as giving or-
ders, using his judgment, reprimanding employees, and
issuing reprimands and generally being a ‘‘supervisor.’’ Wil-
liams’ testimony made it clear that although they did some-
what distinct jobs, basically there was no judgmental leeway
available to either of them.
The contract between the Company and the Union lays out
the various requirements drivers must meet to be assigned
loads, the many types of problems such as overtime, delay
time, and other areas, and prescribes various solutions and
rules. Williams testified that she had no authority to suspend
or give a driver time off or to fire or hire or to make any
change in employees’ permanent pay.
Once the puffing is removed from Joyner’s testimony, it
is clear that he has no independent judgment to use in writ-
ing up drivers’ various offenses. They are basically automatic
and he must merely follow the Company’s rules in what he
does. There appeared to be an attempt to bolster Joyner’s au-
thority by having him write some disciplinary warnings fol-
lowing the beginning of the trial in this matter, in an attempt
to bolster his supervisory status. Looking at the testimony as
a whole, it is clear that Joyner has no true supervisory pow-
ers as Williams testified neither of them had. It is clear that
any decisions made by them in regard to minor matters of
pay are still reviewed by the assistant terminal manager or
the terminal manager for approval.
C. Concluding Findings
A review of the testimony makes it evident that Respond-
ent here sought to keep its office personnel nonunion. Re-
spondent’s plan starts when Wade asked if Respondent
would hire the clerical employees from Nu-Car. Respondent
apparently was under the impression that since it had no con-
tractual duty to hire these employees, that it could (and
would) keep them at arm’s length because they were union
employees. Respondent apparently confused a contractual
question with discrimination and here discriminated against
employees because they were union members.
Respondent’s determination to keep its office personnel
nonunion is evident from the manner in which Respondent
went about determining which of the employees were union
and which were nonunion, soliciting resumes only from the
nonunion employees, and making it clear in front of other
employees that its goal was to have only nonunion employ-
ees in its office. When Terminal Manager Al Schaeffer left,
O’Reilly, as the new terminal manager, continued the pattern.
Respondent hired temporary employees when it knew that it
had long-range needs for other employees. It solicited in the
paper rather than review the resumes until action by these
employees in a form of a picket line in front of the plant
dramatized their complaint that they wanted to be considered.
Respondent did not truly consider any of these employees
until after a charge had been filed against it and the May
picketing took place. When Respondent finally hired Wil-
liams it sought to ensure that she would not be an employee
but a supervisor by building up asserted duties she was to
perform to make it appear that her’s and Joyner’s positions
were supervisory. It is clear from the description of what
they actually did, these were not supervisory positions, but
were created to avoid the possibility that the employees put
in them could become union employees.
Similarly, Respondent’s position that none of the four
discriminatees could have been considered for the confiden-
tial secretary’s job is fallacious. Whether the confidential
secretary could be a union member or not has nothing to do
with interviewing and possibly hiring a person who was a
union member at a previous location. Respondent, in taking
this position, is making a qualification for that position that
a person who had ever been a union member could not be
considered for the job. The fact that a person was once a
union member and would be hired for a position of confiden-
tiality where they could not become a union member does
not preclude all previous union members being considered,
and to do so is to discriminate against that person because
of their union membership in violation of the Act.
Respondent, by its use of various stratagems such as using
the temporary employees, refusing to consider the resumes of
any of these employees until it was forced to do so, and by
its establishing positions in such a way as to try to avoid the
question of whether they might be employees who could be-
come union members, clearly was building a situation where
it felt it would insulate itself from having any of its clerical
employees as union members and would thus keep out the
Union. I find that Respondent, beginning with the first cleri-
cal hire and the use of Kelly Temporary employees and its
subsequent hirings, and by not considering any of the
discriminatees, discriminated against all of them.
Basically, Respondent confused its lack of obligation to
take the unit of office employees with permission to dis-
criminate against the individuals who occupied those posi-
tions because they were union members. In essence, the bar-
gaining unit is not the same as the individuals who are in
that unit. The people who were members of that unit wanted
to be employed by E & L and made that known to E & L
by filing resumes. Respondent sought to fend off union cleri-
cal employees by first using Kelly Temporaries and saying
it was not going to hire any more permanent employees.
Next it took the position it could not consider union mem-
bers for confidential positions and later sought to make its
clerical positions into supervisory positions to say that per-
sons in those positions could not be union members.
Being in a bargaining unit has never disqualified employ-
ees from transferring to nonunit jobs or supervisory positions
and such could have happened here. If a confidential em-
ployee is excluded from protection of the Act due to the na-
ture of the person’s job, that does not forbid a company from
offering such a job to an employee who is a member of the
union and clearly this is no reason for precluding consider-
ation of such a person from such a position. A company can
establish that the position requires exclusion from the union
and the individual can determine if the position offered is
worth the loss of protection of not being a union member.
The fact that a position may be outside of the bargaining
unit is no defense to refusing to consider an employee or a
unit member for that position. To do so is to say that a per-
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
son who is in a bargaining unit is barred from taking a con-
fidential secretarial position or a supervisory position because
the person is or was a union member, which is simply an-
other way of saying we will discriminate against them be-
cause of their union membership.
In this case the Respondent took this position when it sent
its employee James Houseman to determine which of the of-
fice workers were union and nonunion and securing resumes
only from those who were nonunion. This was further
drummed in by the statements recited above that it would not
hire union personnel in its office and it continued this cam-
paign even when it changed terminal managers, by refusing
to even consider the union persons who had filed resumes.
It was not until after charges were filed and it was picketed
that it even interviewed some of the discriminatees. The ex-
cuses given for not considering some of them are not credi-
ble. That is not balanced by its hiring Kathy Williams whom
it found to be sufficiently talented for them. It sought to keep
her from becoming a union member again by stating that this
position was a supervisory position and attempting to give it
trappings of such. Clearly, the testimony provided by Joyner
in his blowing out of proportion his responsibilities was an
attempt to establish that Williams’ held a supervisory posi-
tion.
I conclude and find that Respondent refused to consider
the four named employees seriously for employment by it
until it hired Kathy Williams. The reasons given for not hir-
ing the other employees are found to be specious. I conclude
and find that Respondent had a duty to consider these em-
ployees on an equal basis with all other persons and by not
doing so violated Section 8(a)(1) and (3) of the Act as al-
leged in paragraph VII of the complaint.
The use of the Kelly Temporary employees which Re-
spondent testified was done because it was not sure whether
it would need employees or for how long and that it was
‘‘cheaper’’ to hire temporaries and that it was not hiring per-
manent employees is a mere facade. It could have hired or
offered to hire any of the employees as the predecessor and
if it really believed it was hiring only temporary employees
it could have made such offers to them as temporaries but
chose not to do so. The basis for Respondent’s actions again
was its attempt to avoid hiring union members in an office
unit.
Respondent states that antiunion animus cannot be imputed
to it because it has contracts with unions at other locations.
The Board has held on many occasions that because an em-
ployer has some union employees does not prevent it from
having animus against having more employees as union
members.
In the situation in which Respondent found itself, it did
not have much choice in the Chicago area in hiring the driv-
ers or the mechanics since the contract was explicit and it
was subject to the ruling of the joint arbitration board which
found that it must do so.
I conclude and find that Respondent violated Section
8(a)(1) and (3) of the Act by not hiring these four employees
from the date it hired employee Norton (March 31), and sub-
sequently hired temporary employees, until each of these
discriminatees are offered employment with Respondent.
Respondent’s reliance on Master Housekeepers, 287
NLRB 908 (1987), is misplaced. In the instant case we have
both stealthy interrogation of employees to determine union
membership and violative threats not to hire union members,
followed by stratagems to achieve that purpose. Such ele-
ments were not found in Master Housekeepers.
CONCLUSION OF LAW
By the acts described above, Respondent has interfered
with, restrained, and coerced its employees in the exercise of
the rights guaranteed them by Section 7 of the Act, and
thereby has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act, as alleged in the complaint.
REMEDY
Respondent, having discriminatorily refused to consider for
employment four persons, must offer Kathy Parker, Rebecca
Pyka, and Dawn Szczepaniak positions and make them and
Kathleen Williams whole for any loss of earnings and other
benefits they have suffered, computed on a quarterly basis
from the date of the refusal to consider them to a date when
they are offered positions, less any net interim earnings as
prescribed in the F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and the
entire record, I issue the following recommended4
ORDER
The Respondent, E & L Transport Company, Chicago, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening not to hire persons because they are mem-
bers of the Union.
(b) Refusing to consider and not hiring persons because
they are union members or because they support the Union.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Kathy Parker, Rebecca Pzka, and Dawn
Szczepaniak positions in Respondent’s Chicago office which
were offered to other persons because these employees were
union members and not considered for employment because
of their union membership, and make them and Kathleen
Williams whole for any loss of pay or other rights and privi-
leges they would have had if they had been hired at such
time other persons were hired or employed and make them
whole for any loss of earnings and other benefits suffered as
a result of the discrimination against them in the manner set
forth in the remedy section of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
309E & L TRANSPORT CO.
5 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(c) Post at its Chicago facility copies of the attached notice
marked ‘‘Appendix.’’5 Copies of this notice on forms pro-
vided by the Regional Director for Region 13 after being
signed by the Respondent’s authorized representative shall be
posted by Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten to not hire persons because they
are members of the Union.
WE WILL NOT refuse to consider and hire persons because
they are members of the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Kathy Parker, Rebecca Pyka, and Dawn
Szczepaniak positions in our Chicago office which were of-
fered to other persons because these employees were union
members and not considered for employment because of
their union membership, and make them and Kathleen Wil-
liams whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them.
E & L TRANSPORT