McLain Trucking, Inc.

National Labor Relations Board - Board Decisions

Nov 4, 1971

194 N.L.R.B. 16 (N.L.R.B. 1971)

16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McLain Trucking , Inc. and William Kusley. Case
25-CA-4080
November 4, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On September 7, 1971, Trial Examiner William W.
Kapell issued the attached Decision in this proceed-
ing. Thereafter, General Counsel filed exceptions and
a supporting brief. Respondent filed cross-exceptions
and a supporting brief as well as a brief in support of
the Trial Examiner's Decision.
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
the complaint herein be, and it hereby is, dismissed in
its entirety.
1 The Respondent has excepted to certain credibility findings made by
the Trial Examiner. It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd. 188 F 2d 362 (C.A. 3) We have carefully examined the record and
find no basis for reversing his findings.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM W. KAPELL, Trial Examiner: This matter, a
proceeding under Section 10(b) of the National Labor
Relations Act, as amended, herein called the Act, was tried
in Anderson, Indiana, on July 13, 1971, with all parties
participating pursuant to due notice upon a complaint'
issued by the General Counsel on April 30, 1971. The
complaint, in substance, alleges that since about November
23, Respondent McLain Trucking, Inc.,2 in violation of
Section 8(a)(1), (3), and (4) of the Act, has refused to hire
William Kusley as a regular or trip lease driver because he
(1) joined and assisted the Union and sought to bargain
1 Based upon a charge filed by William Kusley on December 29, 1970.
All dates hereafter refer to the year 1970 unless otherwise noted.
2 The name of the Company as amended at the hearing
collectively through representatives of his own choosing,
and engaged in other concerted activities for mutual aid
and protection, and (2) filed charges or gave testimony
under the Act. In its answer, Respondent denied engaging
in any of the alleged violations, and set forth that the
reasons for refusing to hire Kusley were(1) his objectiona-
ble personality traits evidenced during a job interview at
Respondent's office, and (2) his filing of a charge against
Respondent, subsequently dismissed, following a refusal to
hire him, did not entitle him automatically to a job
thereafter with the same employer.
All parties were represented and were afforded opportu-
nity to adduce evidence, to examine and cross-examine
witnesses, and to file briefs. Briefs have been received from
the General Counsel and Respondent and have been
carefully considered. Upon the entire record3 in the case
and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. COMMERCE
Respondent, with its principal office and place of
business at Anderson, Indiana, and with places of business
in other cities of Indiana, Michigan, and Ohio, has been
engaged at all times material herein as a common carrier in
the interstate transportation of freight by truck. Annually,
in the course and conduct of its business operations
Respondent receives revenues in excess of $50,000 for
transporting goods, and materials in interstate commerce
between Indiana and other States of the United ^ States.
Respondent admits, and I find, that at all times material
herein it has been engaged as an employer within the
meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For many years Kusley has been an owner-operator of a
tandem tractor and trailer. During the summer of 1967 he
planned the strike of the independent steel haulers. As
spokesman for that group he sent out fliers and made other
arrangements for the independent truckers who struck in
about nine States. The Teamsters, representing the
employees of many of the struck carriers, declined to help
the independent haulers in their dispute. The dispute was
mainly over demurrage-the uncompensated time spent by
truckers while waiting to load or unload at the steel mills. In
the agreement reached as a result of that strike, Kusley was
the chief negotiator for the independent haulers. During the
strike, which lasted about 9 weeks, Respondent's Ohio
terminal and the terminal at Hammond, Indiana, where
Respondent did business, were picketed. John Leatherman,
Respondent's president, heard or read about Kusley's
participation in that strike.
3 Respondent's unopposed motion to correct the transcript is granted as
requested.
194 NLRB No. 10
McLAIN TRUCKING, INC. 17
In June or July 1969 Respondent's employees at the
Hammond, Indiana, terminal,4 who were paid under a pay
schedule called the Alger Formula, struck to obtain the
higher pay which Respondent was paying to its employees
at other terminals . The employees at this terminal,
including Robert Johnson , asked and obtained Kusley's
assistance in their dispute , and they began to picket the
terminal with Kusley participating in the picketing . Five or
six meetings were thereafter held with John Leatherman, in
which Kusley acted as spokesman for the strikers. The
parties reached agreement and Leatherman signed a
memorandum dated July 15, 1969 , setting forth some of the
terms .5 It was at these meetings Leatherman first became
personally acquainted with Kusley . Meantime, on January
29, 1970, Kusley filed a charge with the Board alleging that
Respondent, in violation of Section 8(a)(3) of the Act, had
refused to employ him until he became a member of
Teamsters Local 142 . After an investigation by the
Regional Office , Kusley withdrew the charge on July 27
because of insufficient evidence.
It was stipulated that Kulsey was hired by Respondent on
a trip-lease basis on the following days during 1970:
February 17, March 4, 6, 9, and 16, April 2 and 4, May 26,
June 15, July 16, August 3 , 4, and 5, and November 12.
On November 11, 1970, Robert Johnson, an employee of
Respondent for the past 5 or 6 years and currently a long-
lease driver, called Bill Ward , Respondent 's dispatcher at
the Hammond terminal, about 2 hours before he was
scheduled to pick up a load and told him he was unable to
do so because his truck had broken down. Johnson then
arranged with Ward 's approval to have Kusley substitute
for him on this scheduled trip.
B. The Refusal To Employ Kusley
The uncontroverted testimony of Johnson shows that on
November 17, 18, and 19 he telephoned Leatherman about
hiring Kusley as a driver . During the conversation on the
19th, Leatherman told him Kusley would "have to get right
with the union before I can use him," and he agreed to
interview him. According to Kusley, he and Johnson, while
on their way on November 23 to see Leatherman at
Respondent's main office in Anderson, Indiana, pursuant
to Johnson 's prior arrangement , first visited Teamsters
Local 135 at Muncie , Indiana, where Kusley applied for
membership and paid $76 in dues . They then went to
Respondent's main office where Kusley was to be
interviewed for a job. Upon meeting Leatherman , he asked
why they had filed charges with the Board against him and
persisted in discussing the matter during the beginning of
their meeting. Leatherman then summoned Albert Sher-
ban, Respondent's operation manager , to his office where
they continued their discussion . Kusley stated that he
didn't like to be forced to join the Union as a condition of
employment and asked Leatherman, "Well, will you put me
4 At that time Respondent took over the terminal through a merger with
Contract Carriers, the prior operator.
5 Employee Robert Johnson who had previously been laid off because
he was not a union member was reinstated by the terms of the settlement.
6 Respondent hired two types of drivers. long-lease drivers who are
hired for periods of 30 days or longer, and trip-lease drivers who are hired
for a specific trip; i e., on a one-trip basis. Both types of drivers are
responsible for their own equipment which is leased to Respondent.
on as a regular driver." Leatherman replied that he would
think it over and have to take it up with his labor
consultant, and also stated that he (Kusle'y) would have to
get straightened out with the Union, and that there was
pressure being brought to bear upon him by the Union.
Kusley claimed that he was a union member although they
had refused to accept his dues.? The meeting ended with a
statement by Leatherman that he would call Kusley to let
him know whether or not he would be hired. Not hearing
from Leatherman, Kusley called him on December 8 and
not finding him in, he left a message to return his call.
When Leatherman failed to return his call Kusley called
again on December 9 and asked Leatherman whether he
had decided to hire him. Leatherman stated that he didn't
think he would be hired at this time because business was
slow and men were being laid off. Thereafter, Kusley called
the Hammond terminal on numerous occasions and was
told they were not hiring or to call Leatherman about it.
Between December 1, 1970, and April 2, 1971, Kusley
called Respondent over 30 times without receiving a single
trip-lease job or regular work.
Leatherman did not materially dispute the testimony of
Kusley or specifically deny the statements attributed to him
by Kusley. He stated that when Kusley visited his office on
November 23 he kept his hat on, looked at the wall and said
very little, and at no time did he say he thought Respondent
was a good company. He stated further that Johnson's
recommendation was not too good because Johnson's
record as an employee was not very good, that the
Company had laid off four to five drivers, and that the
"board" (a list of employees to whom work was assigned on
the basis of seniority) was completely filled with regular
employees. After the meeting on November 23 he and
Sherban decided not to hire Kusley because he kept his hat
on, he didn't look at Leatherman when he spoke to him, he
never made any remarks about Respondent being a good
company, his sponsor (Johnson) had a bad record for
punctuality, and there was no work for Kusley on that day.
He also called the dispatcher at the Hammond terminal and
told him not to permit Kusley to establish seniority and not
to use him as a trip-lease driver.
Robert Rusnock, the manager of the Hammond terminal,
testified that in hiring drivers preference was given to
drivers who were recommended by owner-drivers who
owned more than one equipment set under lease to
Respondent, and that of all the drivers he hired after
November 23, of whom there were a great number, only
two of them were not recommended by such equipment
owners, and these two were hired to haul tinplate, an item
not known by Respondent to be within the trucking
capability of Kusley's tandem truck because of its structure.
Rusnock also claimed that on the occasions when Kusley
called in for work, it was during the late afternoon after the
trip schedules had already been drawn up, or that there was
7 Kusley was apparently referring to a case in which he had previously
filed 8(bXl)(A) charges against Teamsters Local 142 in June alleging, inter
aka, that the Union had discriminatorily refused to accept his dues because
of its belief that he was going to file charges against it under the Act. The
Board in dismissing this allegation held that a refusal to accept his dues
while still retaining him as a member did not restrain or coerce hun in
violation of the Act (190 NLRB No. 19).
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an insufficient number of trips to take care of the regular
(long-lease) drivers because of strikes in the industries
served by the carriers.
C. Conclusions
Leatherman's testimony shows that following the meeting
with Kusley and Johnson on November 23 he decided not
to employ Kusley and instructed the Hammond terminal
not to hire him for any work. Thus, regardless of any need
for drivers, Kusley was not to be hired. In this setting and in
view of the fact that Respondent hired about 30 drivers
during the period in question, I find it difficult to credit
Respondent's evidence to the effect that there was no work
available for Kusley on any of the great number of
occasions he called because the work assignments had
already been made and business was slow due to the strikes
in the industries served by the carriers. I, therefore,
conclude that during this period Respondent discriminated
against Kusley in hiring drivers. However, before such
discrimination can be found to be violative of the Act, it has
to be established that it was due, as claimed by the General
Counsel, to the fact that Kusley had filed charges against
Respondent, and/or had engaged in protected concerted
activities on behalf of and in concert, with Respondent's
employees during the 1969 strike at the Hammond
terminal.
Respondent contends that, aside from a lack of work,
Kusley was not hired because of the manner in which he
acted when interviewed on November 23. A refusal to hire
Kusley because of his personality or for any other reason
would not be violative of the Act unless asserted to conceal
the reasons alleged by the General Counsel.
It appears that subsequent to the filing and withdrawal of
Kusley's charges against Respondent, he, nevertheless, was
hired on five trip-lease jobs and that Leatherman agreed to
interview him for a job. I regard Leatherman's references to
the filing of Kusley's charges at the November 23 meeting
as nothing more than an academic postmortem discussion
of that matter. These findings raise strong inferences that
Respondent was not motivated to refuse to hire Kusley
because he filed the charges. The undemed statement
attributed to Leatherman that Kusley had to get straight-
ened out with the Union, which was bringing pressure to
8 It is significant to note, as pointed out by Respondent, that although
Johnson actively participated in the 1969 strike against Respondent and
bear upon him, would appear to indicate that Kusley's
union difficulties were, to some extent, impeding his
prospective employment by Respondent. However, the
record shows that although Leatherman was aware of
Kusley's past difficulties with the Teamsters and his
involvement in the 1969 strike, that did not deter him from
consenting to interview him for a job, nor preclude him
from obtaining trip-lease jobs during 1970 prior to their
November 23 meeting.8 Furthermore, Kusley took the
precaution of joining Teamsters Local 135 before meeting
with Leatherman to forestall any objection due to his lack
of membership in the Teamsters. Apparently, Kusley's
abrasive personality and the manner in which he behaved
at the November 23 meeting irritated and provoked
Leatherman to the point of refusing to hire him. While
Leatherman's objections to Kusley, whether real or
imagined, may appear to lack substance or even be worthy
of serious consideration, it is not for the Board to judge
their gravity or significance if, in fact, they were the
motivating cause for refusing to hire Kusley, and not his
protected concerted activities or union difficulties. Based
on all the evidence and the demeanor of the witnesses, I
conclude that Leatherman was motivated to refuse to hire
Kusley because of his personality. I, therefore, conclude the
General Counsel has not established by the preponderance
of the evidence that Respondent discriminatorily refused to
employ Kusley in violation of Section 8(a)(1), (3), or (4) of
the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer whose operations affect
commerce within the meaning of Section 2 (6) and (7) of the
Act.
2. Respondent has not engaged in conduct constituting
unfair labor practices within the meaning of Section 8(a)(1),
(3), or (4) of the Act.
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:
ORDER
The complaint is dismissed in its entirety.
also filed charges against Respondent, he continues in its employ.