J. E. MacFarlane

National Labor Relations Board - Board Decisions

Jul 20, 1972

198 N.L.R.B. 335 (N.L.R.B. 1972)

J E. MACFARLANE 335
J. E. MacFarlane and Paul Johnson. Case
31-CA-2622
July 20, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 15, 1972, Trial Examiner Maurice
Alexandre issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed
cross-exceptions and a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that Respondent, J. E. MacFarlane, an Individual,
his agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recommend-
ed Order.
CHAIRMAN MILLER, dissenting:
This is an unusual case. The General Counsel
issued a complaint, charging that Respondent dis-
charged Paul Johnson because he had joined or
assisted the Union or engaged in other protected
activity. The Trial Examiner has found a violation
for almost exactly the opposite reason-i.e., he finds
Johnson was terminated because he was not a
member of the Union.
Such a state of affairs suggests that the Board,
upon review, ought to scrutinize the record with care
in an effort to discover what we really have before us.
I have done so, and have concluded, for the reasons
set forth below, that no violation of our Act has
occurred.
I find the facts to be as follows:
Respondent purchased this small business, which
involves transporting mail for the U.S. Postal
Service, on July 1, 1971. The predecessor had a union
contract; Respondent understood that, and assumed
the contract.
The modus operandi under that agreement has to be
pieced together here from a rather sketchy record.
Respondent is a small businessman with little
sophistication in these matters, and no union officer
appeared as a witness to clarify the less than clear
picture which must be put together from rather
fragmentary evidence.
But, as best as I can make out, the Union requires
small operators such as this one to apply the
contract, including the union security clause thereof,
only to regular full-time employees. Part-time and
temporary employees are treated differently-they
are paid the contract wage scale, but as Respondent
understands the practice, at least, they are not
entitled to receive certain fringe benefits, such as
coverage by the pension and welfare provisions of
the agreement. The union security clause is also
applied differently as to them-they do not become
regular union members, but they do remit a monthly
service fee, which is deducted from their pay, under a
separate kind of checkoff form from that applicable
to regular, full-time employees who are required to
become regular, full-fledged union members. There
is no formal recognition in the contract of these
arrangements, and also no formal or clear-cut
definition of precisely where the line of distinction is
drawn between regular full-time employees and
temporary or part-time employees. Or, if there is, no
one who testified at this hearing understood it with
any degree of clarity.
It is the custom to refer to the part-time or
temporary employees as "non-union" employees,
and to use this same term to apply to employees who
have not yet completed their probationary period.
When Respondent bought the business, it also took
over, as the Trial Examiner found, seven employees
who concededly were regarded as regular full-time
employees. He also took over Johnson and Apodaca,
who were regarded as part-time or temporary "non-
union" employees.
At or about this time, however, Johnson had taken
a step which, in the context of the modus vivendi of
the parties, was unusual. He had gone to the union
hall and sought, on his own, full-fledged membership
in the Union. This was not customary, since usually
employees waited until they became regular, full-
time employees, at which time full-fledged union
membership was both customary and required by the
parties' interpretation of the contractual union
security clause. Respondent had no knowledge of
this and, when Johnson, on July 6, told Respondent
I We agree with the Trial Examiner that Johnson was laid off for the possibility that Johnson might in any event have been laid off on July 6
discriminatory reasons However, we find no evidence in the record to on the basis of nondiscriminatory criteria . As this comment appears to be
support the Trial Examiner 's comment in in 12 of his Decision regarding pure speculation , we do not adopt it
198 NLRB No. 51
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was a union member, Respondent, understand-
ably in the light of the normal customs as to this,
disbelieved him, as the Trial Examiner correctly
found.
On July 3, Johnson complained about not receiving
certain overtime benefits for work on a shift
beginning June 30 and ending on July 1. The
problem' appeared to be one of whether the work
week in question should be treated as a single
workweek for purposes of computing overtime, or as
two separate workweeks in view of a new employer
having taken over as of June 1. Before having
accepted the assignment to the June 30-July 1 long
shift, on or about June 26, Johnson had inquired of
the Union as to whether he would be entitled to
overtime pay for the work in question, and had
received an affirmative answer. When he was denied
the overtime pay, despite his complaint, he again
called the Union, and was told this time that he was
not entitled to the overtime. Though the record is not
complete on this point, it is quite probable that the
circumstance of the advent of a new employer had
not been mentioned at the time of his initial inquiry,
and it was this changed circumstance which entered
into the changed opinion of the union representative
at the time of the later inquiry.
On July 6, Johnson made a second complaint-this
time about his failure to receive holiday pay for the
Fourth of July. On this occasion he was told that he
was not eligible for this contractual fringe benefit
because he was a "non-union" employee. In the
context explained above, what was meant, of course,
was that he was a part-time or temporary employee,
who was both not required to join the Union and
who, as Respondent understood it, was ineligible for
the fringes applicable only to the regular full-time
employees who are also required to be full-fledged
union members. Johnson replied that he was a union
member, and would complain to the Union about his
holiday pay. He did so, and ultimately the Union
successfully contended that he was entitled to
holiday pay. This suggests that Respondent may not
have been fully correct in his understanding that
temporary part-time employees were not entitled to
contractual fringe benefits, but the record leaves us
to conjecture as to this point.
Johnson was also told on July 6 that he was being
laid off. Respondent says that he had decided to
operate with a total of eight employees-seven full-
time, one temporary-and to do some driving
himself . The Trial Examiner did not pass on the
credibility of Respondent's testimony that this
cutback was for business reasons. The record
appears, however, to bear it out, as Respondent did
thereafter operate with seven regular full-time driv-
ers, plus one temporary or part-time employee-
there being a succession of the latter type because
of turnover.
The issue, then, becomes one of whether Johnson
was discriminatorily selected for layoff. Respondent
testified that he believed his only choice consistent
with the contract was to lay off either Johnson or
Apodaca, the two temporary or part-time "non-
union" employees . He testified that as between these
two, Johnson was least senior and also least
competent, there having been some incidents which
Respondent believed indicated Johnson was a less
than totally satisfactory driver.
The Trial Examiner finds that this selection of
Johnson because of his "non-union" status is, in
effect, an admission of a discriminatory basis of
selection. The difficulty with this finding is that the
Trial Examiner does not seem to have understood
the distinction which the parties had drawn between
regular full-time, so-called "union" employees and
temporary or part-time, so-called "non-union" em-
ployees. When viewed in that context, it is plain that
Respondent's view that he had to choose a "non-
union" employee, however discriminatory that term
in its formal usage may sound, was not, in fact,
discriminatory here. Instead, the choice comported
with Respondent's understanding that temporary
and part-time employees do not enjoy the same
contractual protections as regular full-time employ-
ees, and thus that a regular fully covered employee
would clearly be entitled to priority in the event of
layoff.
That the Union may have joined in so construing
the agreement seems evident from Johnson's testimo-
ny that after he filed a grievance regarding his
termination, he discussed it with the union represent-
ative, and apparently immediately following that
discussion embarked on an effort to determine the
precise seniority date of the other part-time or
temporary "non-union" employee, Apodaca. It
seems reasonable to infer that the Union, too, was
thus concerned only with the relative status of these
two employees in determining the propriety of
Respondent's action.
Respondent, who appeared pro se at the hearing,
appeared baffled at the failure of General Counsel
and the Trial Examiner to understand this distinction
which, to his mind, was the way of life in this
industry and in this area. Thus, Respondent protest-
ed at several points in the hearing to the effect that
he must have used the correct basis of selection or the
Union would have pursued the matter under the
contract. And he kept asking why the Board had not
pursued the Union if what had happened here was
wrong, since he knew that Johnson had filed an 8(b)
charge against the Union which General Counsel
had dismissed.
J. E. MACFARLANE
Had Respondent been represented by experienced
labor counsel at the hearing, probably the context of
the distinction would have been sufficiently clearly
brought out so that the Trial Examiner might better
have understood it. Indeed, only the curious circum-
stance of a complaint alleging that Johnson was fired
because of his union membership and a Trial
Examiner's finding the opposite-i.e., that he was
fired for nonmembership-prompted the close scruti-
ny of the record which had led me to this under-
standing.
But once one understands it, it also seems clear
that Respondent was guilty of no discriminatory
conduct in looking only to the so-called "non-
union," but really part-time temporary, employees
for selection of the first employee to be laid off.
If he was in error as to his understanding of this
construction of the agreement, the matter should
have been pursued under the grievance and arbitra-
tion provisions of the contract, and our Collyer
principles 2 would prevent our examining into it until
those procedures had been fully utilized.
There remains the question of whether Johnson
may have been selected, as against Apodaca, because
of Johnson's concerted activity in pursuing his claims
for overtime pay and for holiday pay, or whether, as
Respondent asserts, he selected him because he had
lesser seniority and was less competent. This issue is
also one which should normally be deferred to the
grievance and arbitration provisions of the governing
agreement.
There is some evidence, however, which indicates
that the union representative, although he actively
pursued and ultimately satisfactorily adjusted John-
son's holiday pay grievance, and although he assured
Johnson that the matter of his termination would be
pursued to arbitration, if necessary to secure a
favorable result, did not in fact pursue the termina-
tion grievance. We do not know why.
I would, under these circumstances, remand the
case for a determination as to whether there
subsequently developed hostility between Johnson
and his Union of a nature which would indicate that
this is not a proper case for deferral under Collyer. It
is possible that such may be the case. Johnson
obviously believes it is, since he has complained both
to the Board and to the International Union about
the Local's failure to more vigorously pursue his
grievance. It is equally possible, however, that the
Union investigated the matter of the termination and
concluded that the selection of Johnson, rather than
Apodaca, was a proper application of the contract,
and was not motivated by improper reasons related
to Johnson's advocacy of his grievance. The action of
the General Counsel in dismissing the 8(b) charge
herein tends to suggest the latter, but I do not believe
337
we are justified in accepting such an inference as
fact, in the present state of the record.
In any event, since the Trial Examiner did not
address himself to the Collyer issue , I would remand
for the taking of such further evidence as may be
necessary for the Trial Examiner to rule on the
proper application of our Collyer principle to this
remaining issue.
2 Collyer Insulated Wire, a Gulf and Western Systems Co., 192 NLRB No.
150.
TRIAL EXAMINER'S DECISION
MAURICE ALEXANDRE , Trial Examiner : This case was
heard in Los Angeles, California , on January 11, 1972,
upon a complaint issued on October 26, 1971,1 alleging
that Respondent MacFarlane had violated Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended.
In his informal answer to the complaint , MacFarlane in
effect denied commission of the unfair labor practices
alleged.
Upon the entire record, my observation of the witnesses,
and the brief filed by the General Counsel,2 I make the
following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
By failing to deny, the answer admitted the following
allegations of the complaint:
Respondent is, and has been at all times material
herein , a sole proprietorship, located in Inglewood,
California where he is engaged in the transportation by
motor vehicle of mail under contract with the United
States Postal Service.
Respondent in the course and conduct of his
business annually performs services valued in excess of
$ 100,000 for the United States Postal Service.
In the course and conduct of its business operations,
Respondent transports mail destined for delivery in
states other than California and/or transports mail
which has been received directly from states other than
California.
Respondent is, and at all times material herein has
been, an employer engaged in commerce and in a
business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
I find the facts to be as admitted , and that MacFarlane is
an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Van Storage Drivers, Packers, Warehousemen
and Helpers Local 389 , International Brotherhood of
Teamsters, 'Chauffeurs, Warehousemen & Helpers of
I Based on an original and amended charge, respectively filed on
September 13, and October 20, 1971, by Paul Johnson.
2 MacFarlane failed to file a brief.
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Evidence
On May 6, 1971,3 Paul Johnson was employed as a
truckdriver by one E. C. Silvestri, the former owner of the
business now owned and operated by Respondent
MacFarlane. At that time, Silvestri and the Union were
parties to a collective-bargaining agreement, containing a
union-security provision which covered all of Silvestri's
drivers. Silvestri informed Johnson that he would be
required to join the Union within 31 days, and was
required to execute a checkoff agreement to permit
deduction of the union initiation fee and monthly dues.
Johnson signed three copies of the checkoff authorization,
retained one copy, and gave the other two to Silvestri, who
was to transmit a copy to the Union.
Toward the end of June, Silvestri approached Johnson
and informed him that he had forgotten to deduct union
dues for May and June from his paycheck, but that he
would make the deduction from the next paycheck. He
also informed Johnson that he had subcontracted all but
one of his mail routes, effective July 1, to MacFarlane; that
he planned to retain two of his employees, Prewitt and
Apodaca; and that the remaining employees, including
Johnson, would be taken over by MacFarlane. On the
following Monday, Johnson went to the union hall, learned
that there was no record of any moneys having been
deducted from his pay, filled out an application for
membership, and was instructed by the Union to pay his
initiation fee and dues as soon as he had the money.4
On or about June 26, Silvestri asked Johnson whether he
would be willing to work overtime on July 1, which was not
a regular workday for the latter. Johnson agreed. He then
telephoned the Union to ask whether Silvestri would be
required to give him overtime pay for such work. Sandouk,
a union representative, answered affirmatively. On the
evening of June 30, Johnson began working a shift which
extended into July 1 and lasted a total of 25 hours.
On July 1, MacFarlane took over the routes which had
been subcontracted to him together with all of Silvestri's
employees, including Johnson, except the two employees
retained by Silvestri.5 He also assumed Silvestri's collec-
tive-bargaining agreement with the Union. Johnson was
not scheduled to work on July 2, but worked a regular shift
for MacFarlane on July 3. On that day, Johnson asked
Silvestri why he had not received overtime pay for the 25-
hour shift. Silvestri replied that since Johnson had worked
for him for the part of the shift up to July 1, and for
MacFarlane beginning on the latter date, he had worked
for each employer separately and was not entitled to
3 All dates referred to hereafter relate to 1971 unless otherwise expressly
stated.
4 On July 2, Johnson purchased a $20 money order which he mailed to
the Union in payment of his dues for May and June. On August 16, he sent
a money order to the Union in partial payment of his initiation fee.
5 MacFarlane gave conflicting testimony as to whether Apodaca worked
for him during the period from July 1 through 8. The parties finally
stipulated that Apodaca worked for MacFarlane for 2-1/2 hours on July 1,
and that he then worked exclusively for Silvestri through July 8.
overtime pay. Johnson responded that he would complain
to the Union.6 Apparently, other employees encountered-
the same problem and, according to MacFarlane, they all
complained to him and Silvestri about it. However,
MacFarlane further testified that Johnson "was the only
one that was very vocal."
Johnson worked a regular shift on July 4. On that date,
MacFarlane told Johnson that he would have no work for
him for a few days after July 5 because of his need to
reorganize the business, and that he would receive his
check on July 6. Johnson worked his regular shift on July
5. On that date, he called the Union to complain about his
failure to receive overtime pay for the 25-hour shift. This
time Union Representative Sandouk reversed his prior
opinion.
Johnson worked a regular shift on July 6. On the latter
date, MacFarlane gave him his check, and informed him
that he had not given Johnson holiday pay for his work on
July 4 because he was not required to do so in the case of a
nonunion member. Johnson testified that he replied that he
was a member of the Union, and that MacFarlane was
required to give him the holiday pay as well as union
medical and other fringe benefits; and that MacFarlane
then stated that he had been informed by Silvestri that he
was not required to hire a union driver, could not afford to
pay union benefits, and was laying Johnson off permanent-
ly inasmuch as he was in the Union. According to Johnson,
he responded that MacFarlane was obligated to pay him
union benefits and that he would call the Union about the
matter.
MacFarlane denied being told by Johnson that he was a
member of the Union. With regard to his reasons for
discharging Johnson, MacFarlane testified as follows.
Silvestri had told MacFarlane that only eight employees
were needed to operate the mail routes which the latter had
acquired. He took over from Silvestri seven full-time
employees, all of whom were members of the Union. In
addition, he took over Apodaca and Johnson, both of
whom were part-time nonunion employees.? He thus had
nine employees. Since no vacations were scheduled
between July 5 and 13, and since he needed only eight
drivers to handle his routes, he decided to discharge one
employee .8 In determining which individual to select, he
concluded that he could not discharge any of the full-time
union employees and retain a part-time or temporary
employee. This left him with only two candidates for
discharge, Apodaca and Johnson. On the basis of his
evaluation of their ability, performance, and seniority, he
selected Johnson for discharge. On cross-examination,
MacFarlane testified that it was his understanding that
since Johnson was nonunion and had not completed the
60-day probationary period provided in the collective-
6 Johnson testified that MacFarlane was in their vicinity during the
conversation, but there is insufficient evidence to permit a finding that he
overheard what they said.
T MacFarlane testified that Silvestri had told him that Johnson was a
part-time employee; i.e., had been hired because one regular employee was
ill and because the vacation season was approaching.
8 MacFarlane testified that, if necessary, he could do some driving
himself.
J. E. MACFARLANE
bargaining agreement, he could be discharged for "any
reason at all."
Johnson reported the situation to Sandouk, who stated
that MacFarlane had no choice but to retain Johnson and
pay fringe benefits, that Sandouk would straighten out the
matter, and that, if MacFarlane did not agree, Sandouk
would call a general strike. On or about July 12, Johnson
filed a grievance at Sandouk's suggestion. On or about July
14, following a conference with MacFarlane, Sandouk
informed Johnson that MacFarlane would pay the holiday
pay. However, Sandouk stated that the matter of Johnson's
discharge was still unresolved. Not receiving any word
from the Union regarding his discharge, Johnson filed an
unfair labor practice charge on September 13. On Septem-
ber 15, MacFarlane mailed a check for holiday pay to
Johnson.
B. Concluding Findings
The General Counsel contends that, in discharging
Johnson MacFarlane was motivated by one of two
considerations: his belief that Johnson had joined the
Union or Johnson's attempt to enforce the holiday pay and
fringe benefit provisions of the collective-bargaining
agreement. From MacFarlane's answer to the complaint
and his testimony, his position appears to be that he
thought that Johnson was not a member of the Union, and
that union membership and benefits had nothing to do
with Johnson's discharge.
I credit Johnson's testimony that he told MacFarlane on
July 6 that he was a member of the Union. The record
establishes that he had filed an application for union
membership at the end of June and had paid his May and
June dues on July 2. Moreover, Johnson was a vigorous
advocate of his union rights. It is thus entirely logical and
reasonable to believe that he would and did inform
MacFarlane of his union status. On the other hand,
MacFarlane's credibility respecting this issue is weakened
by his conflicting testimony regarding the date on which
Apodaca began to work for him, and by his inaccurate
statements , contradicted by Silvestri, regarding the place
and circumstances in which the latter's prehearing affidavit
had been taken.9
Nevertheless, despite MacFarlane's acquisition of in-
formation regarding Johnson's union status, I am not
persuaded that he discharged Johnson for that reason, as
alleged in the complaint. MacFarlane testified that he
believed that Johnson was not a union member, and hence
that he was free to select Johnson for discharge. I am
inclined to credit this testimony for two reasons. First, the
record shows that Silvestri had told MacFarlane that
Johnson was not a member of the Union. MacFarlane so
testified, Silvestri so stated in a prehearing affidavit, and he
did not specifically deny the accuracy of that statement at
the hearing. Second, it is clear from MacFarlane's
testimony that he believed that he was not free to discharge
9 Although MacFarlane did not know the place and circumstances, he
made representations about the facts relating thereto at the hearing
10 To the extent that this finding is based on MacFarlane's admissions at
the hearing , the issue involved may be regarded as having been fully
litigated It is thus unnecessary to decide whether or not the complaint
should be interpreted as including an allegation of an unlawful discharge
339
a union member and that the Union would have protested
had he done so. It is thus highly unlikely that he would
have discharged Johnson if he had believed him to be a
union member.
This is not to say that the discharge was lawful.
MacFarlane testified that he selected Johnson rather than
Apodaca for discharge because the former had less
seniority and was less competent than the latter. However,
MacFarlane admitted that he regarded only nonunion
employees as candidates for discharge. I therefore find that
one of his reasons for selecting Johnson for discharge was
his belief that the latter was not a union member. I further
find that MacFarlane was also motivated by Johnson's
vigorous advocacy of his grievances. MacFarlane admitted
that Johnson was the only employee who was very vocal
about his claim for overtime based on his 25-hour shift.
Moreover, I credit Johnson's testimony that he told
MacFarlane on July 6 that he was entitled to holiday pay
for work on July 4 and other union benefits, and that he
informed MacFarlane that he intended to complain to the
Union. At that point, MacFarlane discharged him. A
discharge motivated by such considerations constitutes
unlawful discrimination under the Act.'°
The union-security provision furnishes no defense to
MacFarlane. Johnson had become a member of the Umon
prior to his discharge, and there is no evidence that he was
delinquent in his dues or that the Union had requested his
discharge because of dues delinquency. Nor is MacFarlane
exonerated by the fact that he acted in the mistaken belief
that Johnson was not a union member and could be
lawfully discharged for that reason. Cf. N.L.R.B. v. Burnup
& Sims, Inc., 379 U.S. 21.
It thus appears, and I find, that Johnson was not subject
to discharge under the union-security provision of the
collective-bargaining agreement on July 6, that he engaged
in a protected activity in invoking what he believed to be
his rights under the agreement, and that MacFarlane
discharged him because of such activity, believing that
Johnson was not a union member and that MacFarlane
had the right to discharge him. Such a discharge violated
Section 8(a)(3) and (1) of the Act."
On the other hand, since I have found that MacFarlane
did not believe that Johnson was a umon member, I find,
contrary to the General Counsel's contention, that he did
not tell Johnson that he was being discharged because he
was a member of the Union.
CONCLUSIONS OF LAW
1. By unlawfully discharging Johnson as found above,
Respondent engaged in an unfair labor practice in
violation of Section 8(a)(3) and (1) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
3. Respondent did not violate the Act by any conduct
not found herein to constitute an unfair labor practice.
motivated by MacFarlane's belief that Johnson was not a member of the
Union
11 In view of this finding, it is unnecessary to decide whether or not it
was economically necessary for MacFarlane to reduce his staff by one
employee, as he testified Even assuming his testimony to be true, the basis
for selecting Johnson was unlawful.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
In order to effectuate the policies of the Act, I find that it
is necessary and recommend that Respondent be ordered
to cease and desist from the unfair labor practice found
and from in any like manner interfering with, restraining,
or coercing its employees.
Affirmatively, I recommend that Respondent offer to
Johnson immediate and full reinstatement to the job which
he held at the time of his discharge or, if that job no longer
exists , to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges. I
further recommend that Respondent make Johnson whole
for any loss of earnings suffered because of the discharge,
by paying to him a sum of money equal to that which he
would have been paid by Respondent from the date of his
discharge to the date on which Respondent offers
reinstatement as aforesaid, less his net earnings, if any,
during the said period. The loss of earnings under the order
recommended shall be computed in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.12
Upon the foregoing findings of fact, conclusions of law,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended: 13
ORDER
Respondent J. E. MacFarlane, his agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Unlawfully discharging employees or otherwise
discriminating in regard to their hire, tenure of employ-
ment, or any term or condition of employment.
(b) In any like manner interfering with, restraining, or
coercing employees in the exercise of any right guaranteed
by the Act.
2. Take the following affirmative action:
(a) Offer to Paul Johnson immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, and make him whole for
any loss of earnings he may have suffered by reason of
Respondent's discrimination against him, in the manner
and to the extent set forth in the section herein entitled
"The Remedy."
(b) Notify the above-named employee, if presently
serving in the Armed Forces of the United States, of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records and reports, and all other records necessary
to analyze the amount of backpay due and the right of
reinstatement under the terms of this recommended Order.
(d) Post at his place of business in Inglewood, California,
copies of the attached notice marked "Appendix." 14
Copies of said notice on forms provided by the Regional
Director for Region 31, after being signed by a representa-
tive of the Respondent, shall be posted immediately upon
receipt thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 31, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.15
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges unfair labor practices not
found herein.
12 It may be that Respondent had an economic need on July 6 to reduce
his driver force by one employee, and that he continues to have no need for
an additional driver. If so, Respondent is of course free , following
reinstatement of Johnson, to discharge a driver on the basis of nondiscrimi-
natory criteria. Again assuming that he had the need to lay off a driver, it is
possible that Johnson would have been selected for discharge even if
Respondent had utilized nondiscriminatory criteria. In such circumstances,
that possibility should be considered in determining the amounts of
backpay, if any, due to Johnson.
13 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
14 In the event that the Board's 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."
15 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 31, in writing, within 20 days
from the date of this Order, what steps have been taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT unlawfully discharge employees, or
otherwise discriminate against them because of their
union activities.
WE WILL offer to restore Paul Johnson to his job and
pay him for all the wages, if any, which he lost because
of the discrimination against him.
J. E. MACFARLANE
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individual, if
J. E. MACFARLANE 341
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, Room
12100, 11000 Wilshire Boulevard , Los Angeles , California
90024, Telephone 824-7357.