Peoples Cartage, Inc.

National Labor Relations Board - Board Decisions

Jun 3, 1977

229 N.L.R.B. 1223 (N.L.R.B. 1977)

PEOPLES CARTAGE, INC.
Peoples Cartage, Inc. and Mike P. Pappas. Case 9-
CA-10478
June 3, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On January 19, 1977, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a memorandum in support of exceptions.
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
attached Decision in light of the exceptions and
memorandum and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge 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 Administrative Law Judge and
hereby orders that the Respondent, Peoples Cartage,
Inc., Columbus, Ohio, its officers, agents, successors,
and assigns, shall take the action set forth in said
recommended Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
FRANK H. ITKIN, Administrative Law Judge: This case
was heard before me on December 3, 1976, in Columbus,
Ohio. The unfair labor practice charge was filed on July 20
and the complaint issued on September 30, 1976. The
principal issue presented is whether Respondent Company
violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended, by refusing to hire Charging
Party Mike P. Pappas because of his activities on behalf of
Teamsters Local No. 413 and by apprising an employee
that management had refused to hire Pappas because of
this reason. Upon the entire record, including my observa-
tion of the witnesses, and after due consideration of the
briefs filed by counsel, I make the following:
On cross-examination. Pappas explained that he did not "complete"
the physical examination form or Department of Transportation form
229 NLRB No. 187
FINDINGS OF FACT
Respondent Company, an Ohio corporation, is engaged
in the trucking and distribution business. It maintains
terminals in Parkersburg, West Virginia, and in Columbus
and Massilon, Ohio. During the prior 12 months, Respon-
dent Company derived revenues in excess of $50,000 from
its services in transporting goods from outside the States of
Ohio and West Virginia. During this same period, Respon-
dent Company had a direct inflow in interstate commerce
of goods and products valued in excess of $50,000 which it
purchased and caused to be shipped directly to its Ohio
facilities from outside of the State. I find and conclude that
Respondent Company is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act. Further, I find and conclude that Teamsters Local No.
413, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
Pappas testified that he was employed by Teamsters
Local No. 413 as its business agent from January 8, 1974,
to March 3, 1976. Respondent Company, at all times
pertinent here, has had a collective-bargaining agreement
with Teamsters Local No. 413. Pappas, as business agent,
serviced this contract. In the course of his duties as
business agent, Pappas periodically came into contact with
Charles Nicholson, Respondent's dispatcher at its Colum-
bus facility. During late March 1976, after Pappas left the
employment of Teamsters Local No. 413, he telephoned
Nicholson "to ask if [Respondent] was hiring any truck-
drivers." Nicholson then told Pappas that Respondent
"wasn't doing any hiring. . . but to keep in touch."
Later, about June 10, 1976, Pappas again telephoned
Nicholson. This time, as Pappas credibly testified,
I called him [on] June 10, on a Thursday. He told me
to come over and talk with him. I told him I would
come over on Monday [June 14]. So, I went over
Monday; he talked with me; he gave me an application.
I filled out the application. He looked the application
over, said he would hire me as a truckdriver.
Pappas recalled that Nicholson also gave him a Teamsters
Union "membership card" to sign so that Respondent
Company could "send [the card] back down to the
Teamsters"; an "insurance booklet"; a Department of
Transportation driving examination form; and a physical
examination form. Pappas furnished Nicholson with a
letter from the Teamsters explaining that his "termination"
as business agent was "for economic reasons"; a copy of
his motor vehicle record; and his local police driving
record. Nicholson made copies of the documents. (See
G.C. Exhs. 4, 5, 6, 7, 8 and 9.')
Pappas, as he further testified, "was supposed to start
driving . . . in that week's time." However, Pappas had
asked Nicholson "if it would be all right if [he] started on
[Mondayl the 21st of June." Nicholson replied that "there
during his interview with Nicholson on June 14. Pappas recalled that
Nicholson "told me to bnng them back when I started to work on the 21 st."
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wouldn't be no problem there" and Pappas should
telephone Nicholson on Friday, June 18. Pappas was
unable to speak with Nicholson on Friday, June 18; he
spoke with Nicholson on Tuesday, June 22. Pappas
credibly testified:
In that conversation ... he [Nicholson] said that he
had bad news for me. And I asked him what. He said,
well, he had hired me, but he talked to [Company
Personnel Manager] Al Slabach and Slabach said not
to hire me because I was an ex-Union business agent,
and I might cause trouble for the Company. I told him
. . . I would not cause any trouble for the Company.
. . . He said . . . he was sorry . . . he couldn't do
anything because ... they gave him his orders ....
Damon Nelson, employed as a truckdriver for Respon-
dent Company and a steward for Teamsters Local No. 413,
credibly testified that, during June 1976, Dispatcher
Nicholson apprised him that Nicholson had hired his
"buddy," Pappas, and Pappas "was supposed to come to
work the next week." About 10 days later, Nelson asked
Nicholson "what happened to Mike." Nicholson replied
that he "couldn't hire him." Nelson credibly testified:
I said, what do you mean you couldn't hire him
.... He [Nicholson] said, well the higher ups said not
to hire him because he was an ex-business agent for the
Union . . . and he might cause trouble to put him to
work ...
Following this conversation, according to Nelson, the
Company "hired" some 10 to 12 drivers.2
Charles Nicholson testified that he was employed by
Respondent Company at Columbus from about December
1970 through July 1976. Nicholson initially was hired as
warehouse supervisor. He was promoted about 1 year later
to terminal dispatcher. He served as dispatcher from 1971
until the termination of his employment in July 1976.
Nicholson claimed that Personnel Manager Al Slabach
"has the last word" in hiring employees. Nicholson recalled
that, prior to June 1976, Pappas inquired about employ-
ment with the Company; that "at the time the workload
just didn't call for it, for hiring"; that later, about June 14,
he accepted Pappas' application for employment; and that
he then furnished Pappas with the various forms and
applications (see G.C. Exhs. 4, 5, and 6). Nicholson was
asked: "Do you generally do that [furnishing the applicant
with such documents] when someone merely files an
application?" He answered: "I do if I am planning on
hiring them, the person." Nicholson was asked: "Did you
tell Mr. Pappas that he was hired?" He answered in part:
No, I did not tell him at that time. I told him I would,
you know, as far as I was concerned, he was hired, but
it would have to go through Al [Slabach].
Nicholson explained that, "by going through Al,"
2 See G.C. Exh. 2, the Company's "seniority list" for drivers as of
November 12, 1976. This list shows, inter alia, some 13 hires from June
through November 1976.
I just basically ... get Al on the phone, give him the
literature on the employment ....
Nicholson claimed that Slabach never spoke directly
with him "concerning this particular applicant." Nicholson
recalled that Terminal Manager David Griel "just more or
less told me not to hire" Pappas.3 Nicholson acknowledged
that he "could have" said to Pappas, "as far as I am
concerned ... you are hired .... " Nicholson also
acknowledged that he told employee Nelson that the
Company had hired Pappas. Nicholson testified that
Pappas telephoned him about the application; that Nichol-
son told Pappas "to forget it"; that Pappas asked "if [it]
had anything to do with him being a business agent"; and
that Nicholson responded, in part:
I [Nicholson] said, offhand, you know, I hate to say
anything, you know, one way or the other. But when it
comes down to saying something like that as a reason
for not hired, I told him to call Al....
On cross-examination, Nicholson explained that he
would "recommend" to Slabach that applicants be hired;
that on "quite a few occasions" his "recommendations"
were followed; and, further, that he recommended to
Columbus Terminal Manager Griel that Pappas be hired.
Nicholson testified:
Q. Can you recall whether or not Mr. Griel gave
you any reasons why he wasn't following your recom-
mendation to hire Mr. Pappas?
A. Did he give me any reasons?
Q. What reasons did he give you as best you can
recall?
A. Well, he just told me not to hire him. And I
asked why, and he said, don't ask me why, he said, just
don't hire him. That's it.
Q. Did he at any time give you an answer to your
question?
A. Yeah.
Q. When was that?
A. Well, it would have been a little bit later.
Q. How much later?
A. About a week.
Q. What did he say?
A. Do I have to answer that?
* * * *
Q. What did he say? A week later?
* * * *
A. He said that the reason was because, he said, it
was obvious they couldn't hire Mike due to the fact he
had worked once for the Teamsters.4
Griel, employed by the Company as terminal manager, did not testify.
I Nicholson identified G.C. Exh. 3 as a document pertaining to "hiring
procedures" in effect during 1976. This document, from Personnel Manager
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PEOPLES CARTAGE, INC.
Al Slabach, personnel manager for Respondent, claimed
that he has "sole authority" to hire drivers for the
Company; that Pappas' application was filed on June 14,
1976; and that the Company was "not actively" seeking
employees at that time and had no positions available.
Slabach, however, acknowledged that other applications
were then "under consideration"; that he instructed
Nicholson to retain Pappas' application "in the active file
and [it would I] remain active with all other job applications
for a period of six months"; that management hired
additional truckdriving personnel in the months following
June 1976 (see G.C. Exh. 2); and that "in June the
Company ran an ad in the [Columbus] Dispatch" for
household goods drivers. Slabach asserted that Pappas was
not seeking "this type of employment"; however, Slabach
acknowledged that essentially all the applicants, like
Pappas, were seeking "permanent employment" as drivers
and the Dispatch advertisement "did not indicate the
temporary or permanent nature of the job."
Slabach asserted that he spoke with Nicholson about the
Pappas application. Slabach claimed that the "reason ...
for not hiring Pappas at that time" was that "we could
economically not afford to put on another man full-time
and guarantee 40 hours." At the hearing, Slabach cited as
additional "reasons" for not hiring Pappas his "impres-
sion" that Pappas was "uncooperative"; had a "strong
dislike for" the Company; was "obnoxious at times"; and
had used "offensive" language. Slabach assertedly based
these additional reasons upon his observation of Pappas
during the opening of contract negotiations with the Union
in early 1976 and telephone conversations with Pappas
concerning union and related matters.
I credit the testimony of Pappas and Nelson as detailed
above. Their testimony is in part mutually corroborative
and is substantiated in part by the testimony of Nicholson.
And, relying on the demeanor of the witnesses, I find
Pappas and Nelson to be trustworthy and reliable witness-
es. Further, I credit the testimony of Nicholson as
summarized above insofar as his testimony does not
conflict with the testimony of Pappas and Nelson. In
particular, I am persuaded here that Nicholson told Pappas
on June 14, as Pappas credibly testified, that he "would
hire" Pappas; that Nicholson told Pappas on June 22 that
"he had hired" Pappas but Personnel Manager Slabach
"said not to hire [him] because he was an ex-Union
business agent and . . . might cause trouble for the
Company ... "; and that Nicholson initially stated to
Nelson that he had hired Pappas and later explained to
Nelson that the "higher ups said not to hire him because he
was an ex-business agent for the Union . . . and he might
cause trouble ... ." Further, I find here that Nicholson
did not speak or confer directly with Slabach about the
Slabach to "all terminal Managers and supervisors," recites, in part: " - on
day employee is hired, Massilon Personnel Supervisor must be notified and
all employment forms completed .... "Employee and Union Steward
Nelson testified:
. . . all I know is the usual way Peoples Cartage is set up, they hire in
Columbus and in turn send their personnel records to Massilon; a copy
is made here [in Columbus] and the original folder is sent to Mr.
Slabach in Massilon.
5 The complaint alleges that Terminal Manager Gnel and Dispatcher
Pappas application. Rather, as Nicholson acknowledged,
Terminal Manager Griel instructed Nicholson not to hire
Pappas and later explained that the "reason was because
. . . they couldn't hire Mike due to the fact he had worked
once for the Teamsters." I do not find Slabach to be a
credible, reliable, or trustworthy witness. I reject as
pretextual his shifting, belated, and contradicted assertions
as to why Pappas was not hired. Moreover, although
Slabach may possess ultimate veto power over the hiring of
drivers, I am persuaded on this record that Dispatcher
Nicholson effectively recommends the hiring of personnel
and that Terminal Manager Griel has hired, fired, and
disciplined personnel at Columbus.
The credited evidence of record, as recited above,
establishes that Pappas was refused employment by
Respondent Company because he "was an ex-Union
business agent .... " I reject as pretextual Respondent's
assertion that Pappas was refused employment for eco-
nomic reasons. Indeed, the record makes clear that the
Company was seeking and later hired additional personnel
while the Pappas application was active. I reject as
pretextual Respondent's belated and shifting assertions
that management did not hire Pappas because of his
behavior or attitude. I am persuaded here that this claim is
an afterthought and do not credit Slabach's unsubstantiat-
ed assertions to this effect. In sum, I find and conclude
here that the real reason why management refused to hire
Pappas was, as Terminal Manager Griel stated to Nichol-
son, "he had worked once for the Teamsters." I find and
conclude that Respondent thereby violated Section 8(a)(1)
and (3) of the Act. And, I find and conclude that
Dispatcher Nicholson, by revealing to employee Nelson
that management had refused to hire Pappas for this
reason, engaged in conduct which clearly tended to impede
employee Section 7 rights, in violation of Section 8(aX)(1) of
the Act. 5
CONCLUSIONS OF LAW
I. Respondent Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Teamsters Local No. 413 is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent Company violated Section 8(aXl) and
(3) of the Act by refusing to hire Charging Party Mike P.
Pappas because of his activities on behalf of Teamsters
Local No. 413 and by apprising an employee that
management had refused to hire Pappas for this reason.
4. The unfair labor practices found herein affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
Nicholson are agents and supervisors of Respondent within the meaning of
Sec. 2(11) of the Act. The answer admits that Nicholson was an agent of
Respondent "although in certain areas had limited authority" and generally
denies that Griel was an agent or supervisor. Griel, as noted, did not testify.
Nicholson credibly testified that he interviewed job applicants; that he
recommended the hinng of applicants; that his recommendations were
followed on "quite a few occasions"; that Griel "can hire" employees; that
Griel "can fire" and "discipline" employees; and that "we could lay off'
and "issue reprimands." I find and conclude that both Griel and Nicholson
are agents and supervisors of Respondent as alleged.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
REMEDY
Having found that Respondent Company engaged in
certain unfair labor practices, I will recommend that it
cease and desist from engaging in such conduct and take
certain affirmative action necessary to effectuate the
policies of the Act. And, in view of the serious nature of the
unfair labor practices found herein, Respondent will be
directed to cease and desist from in any other manner
interfering with employee Section 7 rights.
It has been found that Respondent Company violated
Section 8(a)(1) and (3) of the Act by discriminatorily
refusing to hire Pappas. It will therefore be recommended
that Respondent Company offer Pappas immediate and
full employment to the position which Pappas was
discriminatorily denied or, if that position no longer exists,
to a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make
Pappas whole for any loss of earnings sustained as a result
of Respondent's unlawful conduct by paying to him a sum
of money equal to that which he normally would have
earned from the date of the discrimination to the date of
Respondent's offer of employment, less net earnings during
such period, with backpay computed on a quarterly basis
as provided in F. W. Woolworth Company, 90 NLRB 289
(1950), and with interest at 6 percent per annum as
provided in Isis Plumbing & Heating Co., 138 NLRB 716
(1962). Respondent Company will preserve and make
available to the Board, upon request, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records necessary and
useful to determine compliance with and the amount of
backpay due under the terms of this Decision. It will also
be recommended that Respondent Company post the
attached notice.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in this case, and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER6
The Respondent, Peoples Cartage, Inc., Columbus, Ohio,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Telling its employees that it has refused to hire job
applicants because of their activities on behalf of Team-
sters Local No. 413, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization.
(b) Discouraging membership in said Union or any other
labor organization by discriminatorily refusing to hire job
applicants or by in any other manner discriminating
against employees with respect to their hire or tenure of
employment or any term or condition of employment.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their Section 7 rights.
2. Take the following affirmative action:
(a) Offer to Mike P. Pappas immediate and full
employment to the position which he was discriminatorily
denied and make him whole for any loss of earnings which
he may have sustained as a result of the discrimination
against him, in the manner set forth in this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, person-
nel records and reports, and all other records, as set forth
in this Decision.
(c) Post at its offices and facilities in Columbus, Ohio,
copies of the attached notice marked "Appendix." 7 Copies
of said notice, on forms provided by the Regional Director
for Region 9, after being duly signed by Respondent, shall
be posted immediately by it upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
6 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.
I In the event that the Board's Order is enforced by a Judgment of a
United Slates 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."
APPENDIX
NoTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT tell our employees that we have
refused to hire job applicants because of their activities
on behalf of Teamsters Local No. 413, affiliated with
the International Brotherhood of Teamsters, Chauff-
eurs, Warehousemen and Helpers of America, or any
other labor organization.
WE WILL NOT discourage membership in said Union
or any other labor organization by discriminatorily
refusing to hire job applicants or by in any other
manner discriminating against our employees with
respect to their hire or tenure of employment or any
term or condition of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed in Section 7 of the National Labor
Relations Act.
WE WILL offer Mike P. Pappas immediate and full
employment to the position which he was discriminato-
rily denied or, if that position no longer exists, to a
substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make
him whole for any loss of earnings which he may have
sustained.
PEOPLES CARTAGE, INC.
1226