Hutchens Trucking Co.

National Labor Relations Board - Board Decisions

Jan 11, 1984

268 N.L.R.B. 509 (N.L.R.B. 1984)

HUTCHENS TRUCKING CO.
Hutchens Trucking Company, Inc. and Henry Hil-
liard and Donald Fulcher. Cases 11-CA-10483
and 11-CA-10483-4
11 January 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 5 August 1983 Administrative Law Judge
Leonard N. Cohen issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
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 briefs and has
decided to affirm the judge's rulings,' findings, and
conclusions and to adopt the recommended
Order. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Hutchens
Trucking Company, Inc., Winston-Salem, North
Carolina, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order,
except that the attached notice is substituted for
that of the administrative law judge.
i 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.
I The notice prescribed by the judge does not contain the full language
of his Order. We shall substitute a notice which conforms with the
Order.
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 ordered us to post and abide by this notice.
WE WILL NOT discourage membership in Team-
sters Local No. 391 or any other labor organization
by refusing to hire job applicants or by delaying
offers of employment to job applicants because of
their union activities.
WE WILL NOT tell job applicants that they will
not be hired by us because of their union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer an over-the-road truckdriver job
to Henry Hilliard and WE WILL make Henry Hil-
liard and Donald Fulcher whole for any loss of
pay they may have suffered by reason of the dis-
crimination practiced against them, with interest.
HUTCHENS TRUCKING COMPANY, INC.
DECISION
STATEMENT OF THE CASE
LEONARD N. COHEN, Administrative Law Judge: This
matter was tried before me in Winston-Salem, North
Carolina, on November 8, 1982.1 On August 6, the Re-
gional Director for Region 11 of the National Labor Re-
lations Board issued a complaint and notice of hearing
based on unfair labor practice charges filed by Henry F.
Hilliard, Jr., an Individual, and Donald J. Fulcher, an In-
dividual, on June 28 and July 6, respectively. The com-
plaint alleges, inter alia, that Hutchens Trucking Compa-
ny, Inc., herein called the Respondent, in violation of
Section 8(a)(3) and (1) of the Act, failed and refused to
hire job applicants Hilliard and Fulcher because of their
union membership while employed by another employer.
The Respondent filed a timely answer in which it denies
the commission of any unfair labor practice.
All parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witness, to argue orally, and to file briefs. Counsel
for the General Counsel and counsel for the Respondent
both filed briefs which have been carefully considered.
On the entire record of this case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a motor freight carrier licensed by
the Interstate Commerce Commission, is a North Caroli-
na corporation with a principal office and place of busi-
ness in Winston-Salem, North Carolina, where it is en-
gaged in the business of transporting freight by motor
vehicle. During the past 12 months, the Respondent pur-
chased and received goods and materials valued in excess
of $50,000 at its Winston-Salem, North Carolina facility
directly from points outside the State of North Carolina.
Accordingly, the Respondent admits, and I find and con-
clude, that the Respondent is an employer within the
meaning of Section 2(6) and (7) of the Act.
Unless otherwise stated, all dates are in 1982.
268 NLRB No. 74
509
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNFAIR LABOR PRACTICES
A. The Facts2
1. Background
In mid-1978, Hilliard and Fulcher were hired as over-
the-road truckdrivers by North Carolina Allstates Serv-
ice, Inc., herein called Allstates, a local trucking oper-
ation with offices located in the General Electric Com-
pany, herein called GE, Winston-Salem, North Carolina
warehouse. Allstates hauled freight exclusively for GE
and employed at one time during the early portion of
1981 as many as 84 truckdrivers. For some unidentified
period of years, Allstates' truckdrivers had been repre-
sented by Teamsters Local Union #391, herein called the
Union, with 100 percent of those employees paying
union dues through the checkoff provisions of the most
recent in a series of collective-bargaining agreements.
Under the terms of a supplemental agreement extending
for I year the terms of the 1979-82 collective-bargaining
agreement, over-the-road truckdrivers such as Hilliard
and Fulcher would be paid 25 cents per mile when driv-
ing alone and 28 cents per mile to be equally divided
when riding in a two-man sleeper tractor.
Allstates had a history of making substantial temporary
layoffs during the slack season during Thanksgiving and
Christmas of each year. Normally these layoffs were of
relatively short duration with most, if not all, of the
truckdrivers recalled by February of the ensuing year.
Thus, consistent with past practice, late in 1981 Allstates
cut back its work force to approximately 24. Among
those laid off were Charging Parties Hilliard and
Fulcher. Unfortunately, unlike prior years, only a hand-
ful of the approximately 60 laid-off truckdrivers were re-
called by Allstates during 1982.
For some unidentified time, GE also had contracted
with the Respondent for the hauling of freight. Although
the record is unclear, it appears that, prior to November
1981, this work was not substantial and had little, if any,
impact on Allstates' business relationship with GE. Be-
ginning in that month, however, and continuing thereaf-
ter, the situation changed dramatically. As an apparent
cost-saving measure, GE began utilizing the Respondent
and its truckdrivers for deliveries and hauling formerly
made by Allstates. This trend continued well into 1982.
Due to this increase in work, the Respondent established
its own office at the GE warehouse and, on March 15,
hired William Linde, Allstates' regional manager and the
immediate supervisor of the truckdrivers, and placed him
into the newly created position of controller. Prior to
Linde's coming on board, all hiring by the Respondent
for work out of the GE facility was handled either di-
rectly by James Hutchens, the Respondent's president, or
by his secretary, Mona Martin. Shortly after assuming
his new position, Linde took over the hiring function ex-
clusively.
2. Henry Hilliard
On Thursday, April 1, Hilliard drove the 55 miles
from his home to Winston-Salem in order to submit a job
2 Except as specifically noted, the material facts are not in dispute.
application with Trans Personnel, a driver leasing com-
pany. Prior to keeping that appointment, Hilliard
stopped by the GE warehouse to see if GE's business
had picked up. During a brief discussion with a repre-
sentative of GE, Hilliard mentioned that he was planning
to see Hutchens about a job. Hilliard was told at that
time that Hutchens not only now had its own office at
the GE warehouse, but also that his former supervisor,
William Linde, was managing it. Hillard went across the
hall and spoke to Linde.
A substantial dispute arises in the respective versions
offered concerning this relatively brief one-on-one con-
versation. I will first relate Hillard's account. After ex-
changing pleasantries, Hilliard said that he had heard
that Hutchens was doing some hauling for GE and was
putting on drivers. He then asked Linde if he had any
chance of getting on. Linde replied, "Henry, it won't do
any good to put in an application. They are not going to
hire anybody that's in the Union and had worked for
GE." Hilliard responded that he did not reckon it would
do any good then to put in an application. Linde then
commented that GE could not be blamed for using Hut-
chens rather than Allstates since they saved 50 cents a
mile which could add up to a savings of as much as S3
million a year. Linde then added.that Hutchens' drivers
were only making 18 cents a mile to be split between
two drivers. Hilliard simply observed that that figure
"wasn't much." Shortly before the conversation ended,
Hilliard told Linde that he was going to put Hutchens
down as an unsuccessful employment contact with the
state unemployment commission. Linde replied that, if
the State checked, he would verify that Hilliard had
been in looking for a job.
Hilliard then left the GE warehouse and proceeded to
Trans Personnel where he made application for work.
That evening Hilliard told his wife about the conversa-
tion he had had with Linde.
Linde's version differs in several material respects
from that offered by Hilliard. Linde testified that the
substance of the conversation opened with Hilliard
asking him what Hutchens' drivers were being paid.
When Linde answered that the pay had just gone up
from 18 cents a mile split to 20 cents a mile split, Hilliard
stated that he would not drive for 20 cents a mile split.
Hilliard added that the reason he had stopped by was to
fulfill the state requirements necessary to draw unem-
ployment. Hilliard added that he had really come to
Winston-Salem to apply for a job with Trans Personnel.
Linde responded that he did not see any need for Hil-
liard to fill out an application, that, if the State made an
inquiry, he would verify that Hilliard had talked to him
but that Hutchens did not meet the pay standards of Hil-
liard's previous job. Linde further testified that he did
not discuss during this conversation the 50 cents per mile
savings that GE was realizing by using Hutchens rather
than Allstates. Linde explained at the hearing that he had
made similar comments to Allstates' drivers in November
1981 when Allstates was unsuccessfully seeking to obtain
wage concessions from its employees.
In October 1982, Hilliard secured an over-the-road
truckdriver position with a trucking concern located in
510
HUTCHENS TRUCKING CO.
Clover, South Carolina. This job paid even less than did
the Respondent's.
3. Donald Fulcher
On June 14, Donald Fulcher called Linde at his office
and inquired as to whether Hutchens was accepting ap-
plications. Linde indicated that they were but that he
was tied up that day and that Fulcher should come in
the following afternoon. On June 15 Fulcher went to
Linde's office as instructed and was given an application
and a standardized Department of Transportation test to
fill out. After completing this material, Fulcher took it
back to Linde who proceeded to grade the Department
of Transportation test which Fulcher passed. Linde then
stated that Hutchens was having difficulty leasing suffi-
cient equipment and that he would know more about it
toward the end of that week. Linde then suggested that
Fulcher call him at that time. During this brief conversa-
tion, Fulcher indicated that he was ready to go to work
then and was becoming "desparate."
On June 17 Fulcher called Linde and asked him if he
knew anything more. Linde stated that he did not have
any more information. When Fulcher asked Linde if he
should call him at some later point, Linde replied,
"Don't call me, I'll call you."
By letter dated July 29, the Regional Office notified
the Respondent that it intended, absent settlement, to
issue a complaint alleging, inter alia, that the Respond-
ent's failure to hire Fulcher was unlawful. On August 6,
Linde called Fulcher with an offer of a job to start on
August 9. Fulcher accepted the offer and made one de-
livery. Upon his return from that trip, he was informed
by his wife that another carrier had called with a job
offer. Fulcher accepted this job offer and voluntarily quit
his brief employment with the Respondent.
Between June 18 and June 23, the Respondent inter-
viewed and hired five truckdrivers, Russell Hutchens,
Johnny Rothrack, James Matthews, Young Coleman,
and Robert May. No others were hired between June 15,
the date Fulcher submitted his application, and August 6,
the date when Fulcher was offered employment with the
Respondent.
In defense to the Fulcher allegation, Linde testified as
to his reasons for hiring each of these five in preference
to Fulcher. With regard to the hiring of Russell Hut-
chens,3 Linde testified that Hutchens was brought in and
was recommended by Jerry Beeding, another of his driv-
ers. According to Linde, Beeding was having problems
with his partner at that time and requested that Linde
put on Russell Hutchens so that they could ride together.
Linde further explained that, generally if an employee
wanted to ride with someone else who is qualified, Linde
will hire the second driver. Linde further explained that,
in trying to team people up, they frequently ran into per-
sonality conflicts and that it was generally a better busi-
ness practice to hire a team when the opportunity arose.
Hutchens' application indicated that he had been a trac-
tor-trailer driver for some 18 years.
I That Russell Hutchens has the same last name as the owner of the
Respondent is a mere coincidence.
In explaining the hiring of Matthews and Coleman,
Linde testified that at that time he had a team composed
of James Smith and William Parlow, who were having a
personality problem that required their being broken
apart as a team. Since both Smith and Parlow were
black, the Respondent wished to continue with its policy
of teaming drivers by race unless otherwise requested.
Therefore, he was looking for two black drivers to team
with Smith and Parlow. Coleman and Matthews were
the only blacks who then had current applications on
file. Both Matthews and Coleman had extensive experi-
ence in driving tractor-trailers prior to their hire by the
Respondent.
With regard to Rothrack, Linde testified that he was
referred by James Hutchens, the Respondent's president,
and James Hill, another driver who wished to be teamed
with Rothrack. Like the other three mentioned above,
Rothrack had extensive experience as a tractor-trailer
driver.
The same cannot be said with regard to Robert May,
the fifth driver hired after Fulcher had filed his applica-
tion. In explaining his reasons for hiring May, Linde tes-
tified:
Mr. May was very enthusiastic. He assured me that
he would do a good job, called me several times
after he had put in the application wanting to know
if I knew anything or had heard anything yet. Then
he told me he was sure he could do a good job.
A review of May's written application discloses several
interesting factors. First, unlike both Fulcher and the
other four successful applicants, May did not have sub-
stantial experience as a tractor-trailer driver. Additional-
ly, unlike Fulcher and the others, his driving record was
less than ideal. In this regard he had received three
speeding tickets during the period of November 1981
through February 1982 and in January 1982 had been in-
volved in a two-vehicle accident.
In further explaining why the other five applicants
were better suited than was Fulcher, Linde testified that
Fulcher had had a problem while at Allstates in keeping
a driver to ride with him due to his personal hygiene.
Linde conceded that at no time during the investigation
did he ever mentioned to any investigator from the
Board this alleged problem. In explaining why this sub-
ject had never been mentioned prior to the date of hear-
ing, Linde answered simply that he did not believe it was
something that needed to be brought out because of its
"embarrassing" nature.
Linde further testified that he knew Fulcher personally
and was familiar with his driving record while employed
at Allstates. Despite the fact that Fulcher had a good
driving record, was a safe driver, and lived within 3
miles of the GE warehouse, a factor considered impor-
tant by the Respondent, Fulcher was, nonetheless, not
considered by Linde to be one of Allstates' better driv-
ers. Other than mentioning the alleged hygiene problem,
Linde did not expand on this conclusion or observation.
Linde further testified that since Fulcher had on June 15
indicated that he was "desparate" for a job, it was appar-
ent to him that the Respondent was Fulcher's employer
511
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of last resort and that management "did not appreciate"
that. Finally, Linde testified that neither Fulcher's filing
of an unfair labor practice charge nor his being informed
by the Regional Office that a complaint was going to
issue on the Fulcher situation influenced him whatsoever
in his ultimate decision to offer Fulcher employment on
August 6.
4. Statistical breakdown of the Respondent's work
force
From November 1, 1981, through November 8, 1982,
the Respondent hired 73 truckdrivers. Of those, 21 had
worked with trucking companies who had bargaining re-
lationships with the Teamsters Union. Of the 73, 47 were
hired by Linde after March 15. Of those, 16 had prior
union affiliation. Fulcher was the first of four drivers to
be employed by the Respondent who had previously
worked at Allstates.
5. Miscellaneous
In November 1981 Leroy Stack, a truckdriver em-
ployed with Allstates, was laid off. When he received his
last paycheck, he believed it to be short so he went to
the GE warehouse to see Linde to get the matter
straightened out. While there, he had an opportunity to
speak with James Hutchens, the Respondent's president. 4
Stack approached Hutchens on the loading dock and
asked if the Respondent needed any drivers. He then
added that he needed a job. Hutchens answered that, if
Stack were given a job there, he would "have all the
boys organized within 30 days." Stack answered simply
that he would take a lot less than he was currently earn-
ing, which was nothing. That ended this brief exchange.
Stack explained that he had been a member of the
Teamsters for 38 years and had worked with James Hut-
chens back in the 1950's when they had both been em-
ployed with Roadways. At that time Stack was a shop
steward, a position he ultimately held for over 23 years.
Hutchens, in exceedingly unconvincing testimony,
denied ever having any such conversation with Stack. I
credit Stack's account.
B. Conclusions
1. Hilliard
The respective versions offered by Hilliard and Linde
regarding what occurred during their April I conversa-
tion are not reconcilable. The Respondent argues that
Linde's version that Hilliard clearly and unequivocally
stated that he would not work for the wages the Re-
spondent paid be credited in full and that this complaint
allegation should, therefore, be quickly put to rest. In
support of its argument that Hilliard's account is less ob-
jectively believable than Linde's the Respondent notes
that Hilliard's and Linde's friendly relationship continued
after April 1, that the Respondent had by the time of this
conversation already hired many drivers with prior
union affiliation, and that Hillard waited some 3 months
' The General Counsel recognized that this conversation was well out-
side the 10(b) statute of limitations and was only offered to reflect union
animus on the part of Hutchens.
or until after he attended a union meeting before filing
his unfair labor practice charges. After careful consider-
ation, I do not view these factors, either separately or
taken together, as supportive of the Respondent's posi-
tion.
First, there is simply nothing in Linde's April I state-
ment to Hillard regarding the Respondent's hiring prac-
tices which would end their cordial past relationship. In
this regard I view their further "chatty" comments
during this same conversation as inherently plausible.
Secondly, the Respondent's argument that Linde
would not have made the alleged unlawful remark since
it was contrary to the Respondent's hiring practice is
simply not valid. Hilliard was not told that the Respond-
ent would not hire over-the-road truckdrivers who had
previously been affiliated with the Union. What he was
told was that the Respondent would not hire anyone
who had been in the Union and had worked for GE. As
of that conversation, the Respondent, true to Linde's
word, had not done so.
Finally, Section 10(b) of the National Labor Relations
Act gives an aggrieved person 6 months of the unlawful
act within which to file unfair labor practice charges.
That Hiliard chose to wait for almost 3 months before
availing himself of this opportunity is simply of no
moment. Perhaps, as the Respondent suggests, Hilliard's
attendance at the mid-June union meeting in which GE's
continued use of the Respondent to the detriment of All-
states was discussed did influence Hilliard in finally de-
ciding to file charges against the Respondent. It is, how-
ever, a quantum leap to further suggest that because of
what he heard at this meeting Hilliard decided to file
false charges against the Respondent. I am not prepared
to make such a leap. Further, Mrs. Hilliard's credible tes-
timony that her husband told her on the evening of April
I what he and Linde had discussed earlier on the day
dissipates any argument that Hilliard's account of the
conversation as given to the Board at the time he filed
the charges was a result of recent fabrication.
Certain other factors convince me that Hilliard's ver-
sion of the conversation is more reliable than Linde's.
First, Linde's comment is totally consistent with the sen-
timents uttered several months earlier by the Respond-
ent's president, James Hutchens. Secondly, Hilliard sub-
sequently accepted employment with another trucking
company which paid only slightly more than the Re-
spondent. Finally, Linde appeared less than candid
during that portion of his testimony concerning Fulcher.
Specifically, I refer to Linde's belated claim that Fulcher
had difficulty in keeping partners because of personal hy-
giene and Linde's flat denial that the Board's stated in-
tention to issue a complaint on Fulcher's charge played
no role whatsoever in Linde's subsequent decision to hire
Fulcher. Accordingly, based on the foregoing and in
view of the demeanor of the witnesses, I credit Hilliard's
account of the April 1 conversation with Linde.
Having resolved this credibility question in favor of
Hilliard, the ultimate conclusion regarding his complaint
allegation requires little discussion. The landmark case of
Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941), clearly
established that Section 8(a)(3) extends to applicants for
512
HUTCHENS TRUCKING CO.
employment. Here, Hilliard, a fully qualified over-the-
road driver visited the premises of his former employer
and while there was told that the Respondent now had
an office located in the same facility. Hilliard proceeded
to go to that office and speak to his former supervisor
with Allstates who was then the Respondent's new con-
troller. When Hilliard asked Linde about securing em-
ployment with the Respondent, Linde told him not to
even bother filing an application since the Respondent
would not hire anyone who had been in the Union and
had worked for GE. I find that in making this statement,
the Respondent interfered with Hilliard's Section 7 rights
in violation of Section 8(a)(1) of the Act. 5 I further find
that in refusing to hire Hilliard for one of the several
over-the-road truckdriver positions for which it then cur-
rently had job openings, the Respondent violated Section
8(a)(3) of the Act. 6
2. Fulcher
A review of the evidence persuades me that the coun-
sel for the General Counsel has met her burden under
Wright Line, 251 NLRB 1083 (1980), of making out a
prima facie showing sufficient to support the inference
that Fulcher's union membership while employed by All-
states was a "motivating factor" in the Respondent's ini-
tial decision not to hire him.
Thus, in addition to Hutchens' and Linde's previously
noted antiunion remarks, the General Counsel introduced
evidence that Fulcher, a 22-year veteran over-the-road
truckdriver, had an intimate working knowledge of the
locations of the GE customer's warehouses, the routes
that should be taken in making deliveries, and the hours
of operation of such facilities. Additionally, during the 3
years of his employment with Allstates, Fulcher had an
exemplary driving record during which he had had no
accidents and received no tickets. Shortly after Fulcher
submitted his employment application on June 15, five
other applicants submitted their applications and were
hired almost immediately. None of the five had ever
worked with Allstates in making deliveries for GE.
The Respondent argues that the existence of legitimate
business considerations establishes that it would have
taken the same action with regard to Fulcher's mid-June
application even in the absence of Fulcher's protected
concerted activity. I disagree. While "pairing" require-
ments and preferences may explain the hiring of Hut-
chens, Matthews, Coleman, and Rothrack, it does not
even begin to explain the hiring of Robert May. Even
the most cursory examination and the respective work
records of May and Fulcher establish Fulcher's superior-
ity. He was a mature, experienced, over-the-road driver
with an enviable driving record. May was not. Further,
Fulcher, who lived near the facility, was entirely familiar
with all aspects of the GE operation. Again, May was
not. While Linde chose to view May's persistence in
seeking a job as a positive display of enthusiasm, he
viewed similar conduct by Fulcher as a negative display
of desperation. Thus, Linde selected an unknown appli-
cant who merely assured him that he could do a good
5 Univer'al Fuel. 204 NLRB 26 (1973).
6 Young Hinkle Corp., 244 NLRB 264, 267 (197'9)
job rather than hire an applicant he knew would do a
good job.
Linde's further observations regarding the undesirabil-
ity generally of Allstates drivers and specifically of
Fulcher simply does not stand scrutiny. Thus, while
Linde feared Allstates drivers would leave the Respond-
ent's employ to return to Allstates at the first opportuni-
ty, he apparently had no such similar concerns with
regard to laid-off drivers from other employers. No
showing was made that Allstates drivers had a higher
likelihood of recall with their Employer than did the
laid-off drivers of other companies whom the Respond-
ent did not similarly disqualify.
Although Linde testified that he did not consider
Fulcher as one of Allstates better drivers the only sup-
port for such a conclusion was Linde's own observation
that Fulcher had difficulty in keeping a partner due to
personal hygiene problems. No evidence regarding any
such past difficulties Fulcher may have encountered was
offered. Even apart from the severe doubts raised by
Linde's failure to even tell the Board agent investigating
the unfair labor practice charge of Fulcher's alleged
problems, Linde's own subsequent action in hiring
Fulcher in early August belies that he attached any seri-
ous importance to such a condition, if it in fact existed at
all. In these circumstances and in view of the record as a
whole, I find that the General Counsel has established
that the Respondent refused to hire Fulcher for one of
the several over-the-road truckdriver positions for which
it then currently had job openings in violation of Section
8(a)(3) of the Act.
CONCL USIONS OF LAW
I. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. By discriminatorily failing and refusing to hire
Henry Hilliard and Donald Fulcher the Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed them in
Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has committed vio-
lations of Section 8(a)(1) and (3) of the Act, I shall rec-
ommend that it be required to cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Respondent discriminatorily re-
fused to hire Henry Hilliard, I shall recommend that the
Respondent be ordered to offer him employment. Phelps
Dodge Corp. v. NLRB, supra at 192-193. Further, I shall
recommend that the Respondent be ordered to make
Henry Hilliard and Donald Fulcher whole for any loss
513
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of earnings that they may have suffered by paying them
sums of money equal to which they would have earned
as wages from the date of the discrimination until the
date of the Respondent's offer of employment. Backpay
to be paid shall be computed in accordance with the for-
mula in F. W Woolworth Co., 90 NLRB 289 (1950), with
interest computed in the manner and amount prescribed
in Florida Steel Corp., 231 NLRB 651 (1977). 7
Upon the foregoing findings of fact, conclusions of
law, and the entire record and pursuant to Section 10(c)
of the Act I hereby issue the following recommended
ORDER8
The Respondent, Hutchens Trucking Company, Inc.,
Winston-Salem, North Carolina, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in Teamsters Local No.
391 or any other labor organization by refusing to hire
job applicants or by delaying offers of employment to
job applicants.
(b) Telling job applicants that they will not be hired
by the Respondent because of their union activities.
(c) In any other like or related manner interfering
with, restraining, or coercing its employees in the exer-
cise of the rights guaranteed them by Section 7 of the
Act.
See generally Isis Plumbing Co., 138 NLRB 716, 717-721 (1962).
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 purposes,
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act.
(a) Offer immediate employment as over-the-road
truckdriver to Henry Hilliard.
(b) Make whole Henry Hilliard and Donald Fulcher
for any loss of pay suffered by them by reason of the dis-
crimination practiced against them in the manner de-
scribed above in the section entitled "The Remedy."
(c) Preserve and, upon request make available to the
Board or its agents for examination and copying all pay-
roll and other records necessary to analyze the amounts
of pay due under the terms of this Order.
(d) Post at its Winston-Salem, North Carolina facility
copies of the attached notice marked "Appendix. " g
Copies of the notice, on forms provided by the Regional
Director for Region 11, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
9 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
514