R-W Service System, Inc.

National Labor Relations Board - Board Decisions

Oct 8, 1971

193 N.L.R.B. 659 (N.L.R.B. 1971)

R-W SERVICE SYSTEM, INC. 659
R-W Service System, Inc. and William Kusley. Case
13-CA-10291
October 8, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On May 18, 1971, Trial Examiner Wellington A.
Gillis issued his Decision in the above-entitled
proceeding, finding that the Respondent has not
engaged in unfair labor practices as alleged in the
complaint and recommending that the complaint be
dismissed, as set forth in the attached Trial Examin-
er's Decision. Thereafter, the General Counsel filed
exceptions and a supporting brief to the Trial
Examiner's Decision as well as a motion to remand
for further proceedings, and Respondent filed a reply
brief to the General Counsel's exceptions and motion
to remand.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, except as modified below.'
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.
I The General Counsel excepts to the Trial Examiner's refusal to admit
into evidence certain tape recordings and the denial of the General
Counsel's offer of proof concerning the contents of the tapes The General
Counsel waited until after he had presented his case-in-chief and after the
Respondent had presented its defense and its witnesses had been excused
to offer the tape recordings The evidence was offered solely to corroborate
the testimony of the General Counsel's principal witnesses and not in
rebuttal of testimony given by witnesses for Respondent in these
circumstances, we find that the Trial Examiner did not commit error and
his ruling is accordingly affirmed
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Trial Examiner: This case was
tried before me on March 8 and 9, 1971, at Chicago,
Illinois, and is based on a charge filed on December 29,
1970, as amended on January 25, 1971, by William Kusley,
an individual; upon the complaint issued on January 28,
1971, by the General Counsel for the National Labor
Relations Board, hereinafter referred to as the Board,
against R-W Service System, Inc., hereinafter referred to as
the Respondent or the Company, alleging violations of
Section 8(a)(1), (3) and (4) and Section 2(6) and (7) of the
National Labor Relations Act, as amended (61 Stat. 136),
and upon an answer timely filed by the Respondent
denying the commission of any unfair labor practices.'
At the hearing, all parties were represented by counsel,
and were afforded full opportunity to examine and cross-
examine witnesses, to introduce evidence pertinent to the
issues, and to engage in oral argument. Subsequent to the
close of hearing, timely briefs were filed by counsel for the
General Counsel and for the Respondent.2
Upon the entire record in this case, and from my
observation of the witnesses, and their demeanor on the
witness stand, and upon substantial, reliable evidence
"considered along with the consistency and inherent
probability of the testimony" (Universal Camera Corp. v.
N.L.R.B., 340 U.S. 474-496), I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Michigan corporation, is a motor
carrier and trucking concern maintaining a place of
business and truck terminals at various locations in the
States of Ohio, Michigan, Indiana, and Illinois, where it has
engaged in the business of providing interstate transporta-
tion services to various points in these States. During the
calendar year 1970 the Respondent furnished interstate
transportation services for which it received in excess of
$100 million of which sum it received in excess of $50,000
for services which involved the movement of goods in
interstate commerce directly from its Gary, Indiana, truck
terminal at 4075 East 15th Place, the only facility involved
in this proceeding, to locations in States of the United
States other than the State of Indiana. The parties admit,
and I find, that the Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
li. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
1. Whether, on December 8, 1970, the Respondent
interrogated employee applicant William Kusley concern-
i The complaint was amended at the hearing to include the 8(a)(3)
allegation and to delete that portion of the 8(a)(1) allegations which
asserted the maintenance of an employment application form which
interrogates employee applicants concerning past concerted activities
2 Subsequent to the filing of briefs in this matter, the General Counsel
filed a motion to strike certain portions of the Respondent's brief as not
being supported by the record With one exception, the Respondent in its
letter of March 31, 1971, has admitted as in error the portions of its brief
objected to by the General Counsel, specifically all matters contained
therein relating to Kusley and his alleged association with the Fraternal
Association of Steel Haulers General Counsel's motion to strike portions
of brief filed by counsel for Respondent is hereby granted
193 NLRB No. 100
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing his former strike activities in violation of Section 8(a)(1)
of the Act.
2. Whether , on and since December 8, 1970, the
Respondent refused to hire William Kusley because of his
having engaged in 1967 strike activities while employed by
another employer , in violation of Section 8(a)(3) of the Act.
3. Whether , in refusing to hire said William Kusley
during this period , the Respondent did so because Kusley
several years earlier had filed a charge against another
employer and had given testimony under the Act, in
violation of Section 8(a)(4) of the Act.
B. Facts
William Kusley , the sole alleged discriminatee in this
proceeding , is a truckdriver and owner -operator of a tractor
and trailer . As such , he leases his services , with or without
equipment , to truck lines, either on a long-term lease, good
for 1 year or more, or on a term or trip lease basis,
applicable to one trip . From 1957 to 1967 Kusley operated
under a long - term lease with Yellow Transit Company out
of Gary, Indiana. Between 1967 and December 1970,
Kusley's employment was limited to trip leasing for several
companies.
On December 6, 1970 , Kusley noticed an ad in the Gary
Post Tribune "Help Wanted" section stating "brokers
wanted-freight or steel 938-9295 ." About 2.30 p.m.
Kusley drove to an old friend 's house, Joe Vainer , a retired
steelworker , telling him that he planned to call the
telephone number in the paper and that he wanted someone
to listen in as a witness . Vainer agreed, and Kusley, who
had brought a small tape recorder with him, placed the
recorder to the ear piece of the telephone Kusley dialed the
number with Vainer listening close to the ear piece, and,
when a lady answered with, "This is R-W Truck Lines,"
Kusley alluded to the newspaper ad and asked her " if they
were still hiring trucks and drivers ." She replied in the
affirmative and shortly a man came on , saying "This is Bob
Conway." According to Kusley's testimony , he asked
Conway, terminal manager for the Respondent's Gary,
Indiana, operation , if they were still hiring trucks. Conway
allegedly replied "There is no problem . .. we will lease
your truck and driver and myself as the driver ." Conway
then asked Kusley what kind of equipment he had, and was
told that he owned a tandem tractor and tandem trailer.
Conway, upon learning that Kusley's trailer was only 34
feet , told Kusley he could not use the trailer but that the
Company had trailers he could use. According to Kusley,
Conway told him that he would put him to work
immediately. Kusley said that would be fine, that he would
come down to the terminal and talk with him.
Vainer corroborated Kusley's version of this telephone
conversation only as to the preliminaries and the fact that
Conway indicated that the Company was hiring men and
equipment. The remainder of Kusley's testimony as to
Conway putting him to work and "there being no problem"
was not mentioned by Vainer in his testimony. Conway
testified that he told Kusley to come over, but denied telling
him he was hired . I credit Conway 's denial of Kusley's
uncorroborated testimony in this regard , and find that no
such commitment was made by Conway during this
telephone conversation.3
Kusley, accompanied by Vainer and armed with his tape
recorder , drove over to the Respondent 's Gary terminal at
East 15th Avenue , arriving about 2:45 p .m. Kusley placed
the recorder under his coat , the microphone in his pocket,
turned it on, and walked into the office . While walking in,
Kusley told Vainer that if there were any question raised as
to why he was with him, they would say that he (Vainer)
was going to finance Kusley's purchase of a 40 -foot trailer.
Kusley asked for Conway . The latter introduced himself
and, without stating his name, Kusley alluded to their
recent telephone conversation . Kusley then said, "Well, I
am here. I want to go to work . I want to lease my tractor
and I want to go to work for you people pulling your
trailer ." Conway allegedly replied that that was fine, that
there was no problem , that he would put him to work
immediately, that they had a lot of company trailers, and
that R -W Truck Lines operated in Indiana, Michigan,
Ohio, and Illinois.
At that point, Conway received a telephone call,
overheard by Kusley and Vainer. Based on Conway's part
of the conversation , Conway indicated that he was hiring
trucks and learned that the following day somebody would
be bringing Indiana stickers and "the necessary papers and
permits."
After the telephone conversation , Kusley asked Conway
what percentage the Company paid , and was told that R-W
paid 75 percent if Kusley used his tractor and trailer and if
Kusley pulled the company trailer it would be 62 percent.
Kusley testified that Conway said "there was no problem so
far as putting me to work . . . that I could go to work
tomorrow, they had a lot of trailers . We will hire you. No
problem." Kusley then asked about "these permits, if he
had any paper work on it." Conway replied that he did.
Conway said that the Company paid the Indiana stickers,
the Michigan Public Service Commission stickers , and all
the toll fees , that R-W would take 50 percent of the cost of
the permits out of his pay and that if he were to remain with
the Company for I year he would be reimbursed the 50
percent . Kusley said that that was fine , and Conway replied
that R-W would pay the $50 fee for the Michigan Public
Service sticker.
According to Kusley, Conway again mentioned that he
had a lot of trailers and that Kusley could go to work, that
"there is no problem." Conway said that he would call a
man in Detroit and see when he was coming down . Conway
proceeded to dial a number, during which time, in reply to
Vajner's question , Conway identified himself as the
terminal manager , and allegedly asserted that "he did the
hiring and everything."
When the telephone connection was made, Conway said
into the telephone , " I have got the man right here , he wants
to pull the R -W 3 trailer." Conway, on the telephone, said
that the trailer was in Chicago and also stated that there
were two other men coming in the next day to pull
company trailers. This concluded the telephone conversa-
3 Apart from other factors concerning Kusley 's credibility, hereinafter other things , is, in my opinion , totally unrealistic and defies all aspects of
noted, that a terminal manager would agree on the telephone to employ a sound business sense
person for this type of work without even inquiring as to his name, among
R-W SERVICE SYSTEM, INC. 661
tion, and Conway allegedly told Kusley to come in the
following morning around 10 or 10:30 a.m., "there is no
problem, you can go to work tomorrow Bring your tractor
down. You are working." Conway told Kusley that he
would send him to Chicago with his own tractor to pick up
the R-W 3 trailer. With that Kusley and Vainer left.
Vainer corroborated Kusley's testimony as to this
conversation, almost word for word as a matter of fact.
Vainer added that Conway said that he had some stickers
and the permits coming in from Michigan the following
morning, and also, alluding to Kusley's picking up the R-W
3 trailer in Chicago, that when Kusley got to Michigan "he
could take his physical from there." Vajner's testimony did
not include Kusley's assertion that Conway stated during
the conversation that he did the hiring.
With respect to this conversation at the terminal, Conway
testified that he talked briefly with Kusley concerning
arrangements made with drivers as to percentage, payment
of permits and licenses, and the Michigan Public Service
charge, but told him to come back the following morning to
process an application. Conway admitted telling Kusley
that the Company had a R-W 3 trailer in Chicago at the
time, but denied telling Kusley that he could go after it, and
denied at any time telling Kusley that he was hired
Notwithstanding an attempted corroboration of Kusley's
version of the incident by his close friend, Vainer, based on
my appraisal of Kusley and Vainer while testifying,
including the fact that they both admitted agreeing
beforehand to lie to Conway if the occasion required it, I
dust do not believe their testimony as to the crucial aspects
of this conversation with Conway. Again, it is inconceiva-
ble to me that the terminal manager, whose absolute
authority as to hiring without clearance appears to be in
doubt, would commit the Company to hiring a man on the
spot without first knowing his name, securing an applica-
tion form, or having any information on him, as testified to
by Kusley and Vajner. I find that Conway's discussion with
Kusley on this occasion was confined to matters relating to
company employment of truckers generally.
The following morning, December 8, with his tape
recorder but without Vainer, Kusley reported to the R-W
terminal and asked for Bob Conway. Conway took Kusley
to Dallas Hall, Respondent's safety supervisor, and told
him to talk with Hall The two then walked over to a small
office, where, for the first time, Kusley made known his
identity and introduced himself as William Kusley from
Hobart. With Kusley's concealed recorder turned on, Hall
asked Kusley if he had filled out an employee application.
Upon ascertaining from Kusley that he had not, Hall gave
him one and requested that he go to the drivers room and
fill it out. According to Kusley, while he was in the process
of filling it out, Hall appeared in the doorway. Kusley asked
him if he still wanted him to go to Chicago to pick up the
trailer "or what do you want me to do'" Hall replied that he
did not know what Conway wanted to do with him.
Upon finishing his application, Kusley took it back to
Hallo and sat down. In looking over the application and in
obvious reference to question number 14,5 Hall asked
Kusley, "How active were you in the strike in 1967?"
Kusley testified that he had no alternative but to tell Hall
that he "was very active in the strike," detailing the fact that
"I tried to help the truckers. The companies were unhappy
about it. The Teamsters were unhappy about it. As a result
of it I was fired or terminated in 1968 dust after the strike
and I filed unfair labor charges against Yellow Transit."
Hall, at some point, told Kusley he wanted to look over the
application, suggesting that Kusley leave the drivers room.
After waiting some 10 or 15 minutes, Hall came out and
told Kusley that he wanted to go outside and inspect
Kusley's tractor. According to Kusley, Hall walked around
the tractor, but did not inspect it. Hall told Kusley that until
he had a Public Service Sticker he could not let him run on
the road. Hall said that he would look over Kusley's
application, would check his driving and his employment
record, and would call him in several days.
As to this interview, Hall, who, as safety supervisor for all
of Respondent's operations assists in hiring of equipment,
testified that, pursuant to his telephone conversation with
Conway on December 7 concerning several employee
applicants, he arrived in Gary on December 8 and talked
with them. Hall, in reviewing Kusley's application with
him, and noticing the discharge from previous employment
and Kusley's answer "active in strike," admitted that he
asked him about it. Hall, although not recalling, did not
deny asking him how active he was in the strike, but did
deny asking Kusley whether Yellow Transit was pretty mad
about the strike or asking Kusley about what happened to
his unfair labor practice situation. Hall asked additional
questions relative to his application, one concerning his not
having had a permanent employer for 3 years, to which
Kusley replied that he had been trip leasing for 3 years.
Hall credibly denied that Kusley mentioned anything to
him about there being a R-W 3 trailer in Chicago. Hall was
not asked and did not testify concerning inspecting
Kusley's trailer on this occasion or telling Kusley he could
not drive until he had a Public Service sticker .6
Hall, after talking with Kusley and the other two
applicants, called Richard Coppens in Detroit. Hall told
Coppens, who is Respondent's manager of driver personnel
and equipment, that he had three applicants, that two were
normal in his opinion, but that the third was doubtful as the
applicant had 3 years of trip leasing. Coppens told him
definitely to hold off on the third, and to bring the
application back to him in Detroit.
According to Kusley, a week later, on December 15, with
his buddy, Vajner, again listening in on an extension
telephone and with his tape recorder in working order,
Kusley telephoned the R-W Truck Lines. When a person
answered, identifying herself as Carol, Kusley identified
himself as Kusley, telling her he was supposed to go to work
for them and asking her whether they had received the
Indiana Public Service Stickers yet. Complying with her
4 The transcript initially indicates that Kusley gave it to Conway, but it discharged from any employment, Kusley had answered in the affirmative,
is clear from the remainder of the transcript that he meant Hall As a setting forth in the space reserved for an explanation, "Steelhaulers
matter of fact, but for the initial contact, Conway was to have no strike-active in strike"
conversation with Kusley on this date 6 I credit Hall as to this incident I also find that Hall's inquiry was
S In reply to question 14 as to whether the applicant had ever been limited to the one question concerning how active Kusley was in the strike
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suggestion that he hold the phone, a minute or so later she
came back on, stating to Kusley that they had not received
the stickers, and suggesting that he call back in a couple of
days.?
Subsequently, on December 21, again taping the
conversation, Kusley called R-W Truck Lines, this time
with Conway answering. Kusley asked Conway if he had
the Public Service Stickers, telling him that he had a family
to support and that he wanted to go to work. Conway said
that he had not received them yet. According to Kusley,
Conway then volunteered the fact that he had just hired a
man who is driving without an Indiana Public Service
Sticker with the understanding that the man would pay the
fine (presumably if caught). Kusley said, "Well, it is illegal
but . . . I have got to support a family. . .," and suggested
that he go to work with the same understanding. Conway
assertedly replied that he did not know, he would have to
talk to Detroit about it, suggesting that Kusley call back
about 2 p.m. At the designated time, tape recorder and all,
Kusley called again, getting hold of Conway, and asking
him "Have you got-what did you find out about the
Public Service Stickers?" Conway answered, "We are not
going to employ you." In reply to Kusley's query, Conway
told him that Mr. Coppens out of Detroit had looked over
his application and that "they kicked it back and that was
it."
Conway confirmed Kusley's testimony concerning his
telephone inquiry on December 21, but testified that
Kusley asked if he had heard anything back on iris
application. According to Conway, he then called Coppens
in Detroit who told him that the Company could not hire
Kusley because of his trip leasing activities. When Kusley
called again, Conway told him that he had talked with
Coppens and that the Company had rejected him. Kusley
did not ask for and Conway did not volunteer Coppens'
reason for rejection.8
Analysis and Conclusions
The General Counsel contends that Kusley applied for
employment, was told that he could have employment, and,
upon finding out about his 1967 strike activities and his
having filed unfair labor practices against a former
employer, the Respondent refused his employment. The
Respondent asserts that Kusley was never promised
employment and that he was denied employment solely on
the ground that for the 3 prior years he had had no regular
employment and had been engaged only in sporadic trip
lease arrangements.
The strike activities of Kusley and his unfair labor
practice charges upon which the General Counsel relies are
detailed by Trial Examiner John Gregg in his decision
adopted by the Board in Yellow Transit Freight Lines et al,
175 NLRB 672, 673-674. Specifically, the General Counsel
requested that judicial notice be taken of certain para-
7 Vainer corroborated Kusley's testimony generally as to this
conversation except that Vainer testified that Carol said that she would call
Kusley back in a day or two
8 Conway testified that he did not believe he told Kusley that they had
put on a man without a sticker with the understanding that he would pay
his own fines if caught Conway was not questioned concerning Kusley's
graphs contained therein. The following is taken directly
from that portion of Judge Gregg's decision:
William Kusley was in the employ of the Respondent
since approximately 1959. He hauled out of the
Respondent's Gary, Indiana terminal to Michigan,
deadheading back to Gary, Indiana his home base,
hauling steel, steel coils , sheets and steel bars. Kusley
operated a four-axle tractor and seven-axle tractor
called Michigan trains , hauling exclusively for Yellow
Transit Freight Lines, the Respondent. The record is
replete with credible testimony indicating that Kusley
was a key figure in the concerted activities of the owner-
operators, attending several meetings during the year
1966 with owner-operators of the Respondent in
Toledo, Ohio, Detroit, Gary, Indiana, and Chicago.
Kusley testified that the meeting in Chicago was
attended by representatives from all the local unions,
presidents, and business agents and that the purpose of
these meetings was to better working conditions... .
The record indicates that Kusley was discharged by the
Respondent on December 9, 1966, and that he
subsequently filed a charge with the Board in Case
13-CA-7686. His reinstatement with the Respondent
was effected through the grievance procedure and a
Settlement Agreement was executed by the parties and
approved by the Board.
Kusley testified additionally to a meeting in 1967
with Respondent company officials, including Mr. Dale
Merriman and Mr. Whitchurch, where Kusley was the
spokesman for the drivers and the discussion centered
on minimum loads, better terminal facilities, better
hotels, relief from the steel addendum, and payment of
the Company of the highway use tax. According to
Kusley, during the summer of 1967, the owner-operator
drivers picketed Local Union 142 over the matter of the
alleged failure of Local 142 to cooperate with them.
Kusley testified that he tried on many occasions to
contact the Union but could get no cooperation, so in
August 1967, he organized a strike. According to
Kusley, he and Jim Levitt put out posters calling for a
general strike, which started at Gary, Indiana and
extended directly to an 8 state area , and indirectly
perhaps a 20 state area involving possibly 20,000 men.
There is no question on this record but that Kusley was
a key figure and active in concerted activity for the
purpose of collective bargaining or other mutual aid or
protection.
While, on the instant record, Kusley "assumed" that he
was well known to everybody in the trucking business
because of his involvement in the 1967 industrywide strike
which resulted in an agreement to which R-W Service
System was one of some 600 signatories, there is no direct
evidence that any of the Respondent's officials ever heard
of him prior to receiving his application. That his
"reputation" of 3 years earlier had followed him to the
Respondent's operations on December 8 is questionable. It
request that he be permitted to assume such responsibility . While "stickers"
may have been discussed during this conversation, I find that the real
concern on this occasion was Kusley's employment application, and that
the facts of the matter are more accurately reflected in the testimony of
Conway
R-W SERVICE SYSTEM, INC 663
is on this date, December 8, as I understand General
Counsel's primary position, that the Respondent, after
indicating to Kusley that he had a job, suddenly decided
not to hire him Kusley never introduced himself to
Conway so the latter would not have known his name. Hall
had been in Viet Nam during the period of Kusley's 1967
activities, and therefore, it is doubtful that Hall would have
known of Kusley's reputation, if such he had. When Hall
telephoned Conway in Detroit on this date concerning the
threejob applicants, no names were mentioned. According-
ly, Coppens, in directing that the application with the 3-
year employment gap be held and brought to Detroit, was
not aware of whose application he was holding up.
Therefore, on December 8, when the Respondent
allegedly became unlawfully motivated against Kusley,
such motivation would have to have been derived from
Kusley's interview reply to Hall rather than from his
general reputation Apart from the legal issue raised by
Hall's sole question of Kusley on this occasion, the
information supplied by Kusley is in no way commensurate
with the detailed personal involvement upon which Kusley
asserts his general reputation. Thus, his answer to Hall was
that he "was very active in the strike," and that "I tried to
help the truckers. The Companies were unhappy about it.
The Teamsters were unhappy about it. As a result of it I
was fired or terminated in 1968 just after the strike and I
filed unfair labor charges against Yellow Transit." Kusley's
answer to Hall not only does not reveal the extent of his
participation or leadership in the strike, but, except for the
charges, such information conceivably could have been
supplied by any one of the 20,000 participants in the 1967
industry strike
While this knowledge, particularly that relating to the
filing of charges, undoubtedly could have an adverse effect
upon the employment decision of an employer with a
history of union antagonism, such is not the case here. The
record herein is void of evidence revealing antiunion
animus on the part of the Respondent. The only incident
from which even a slight inference might be drawn is that
concerning Hall's interview question of Kusley However,
to properly assess motivation in this regard requires that the
question be appraised in context. In reviewing Kusley's
application and raising a question here and there concern-
ing an answer supplied by the applicant, Hall came across
Kusley's explanation for a prior discharge from employ-
ment, said explanation being "Steelhaulers strike-active in
strike." Hall posed his question in the language of Kusley's
answer, "How active were you in the strike in 1967?" Hall
did not follow this up with any other question but appears
to have gone on with the remainder of the application It
would appear to me that, seeing this written answer, this,
under the circumstances, could have been a natural thing to
do-and to do it without either realizing the import of the
question or truly seeking a definitive reply. Certainly,
without a scintilla of additional evidence of union animus
on the part of Hall, or anyone else in the Respondent's
organization , an unlawful inference as to this one question
under these circumstances is not warranted.
The decision to not hire Kusley was made by Coppens in
accord with company policy to not employ applicants
whose immediate employment is limited to trip leasing. The
record reveals that Respondent's policy concerning the
employment of new drivers is, and has been for many years,
governed by Department of Transportation regulations and
insurance company standards. While in most cases it is
apparent on the face of the application that an applicant is
well qualified, permitting the Company to hire the man
with a reference check to follow, other applications raised
questions requiring a check before hiring the applicant. In
some 10 percent of the cases it is apparent from the face of
the application that the applicant is substandard. Under the
Company's policy of maintaining high standards for its
applicant drivers, apart from an applicant's driving record,
the Company looks to his recent employment experience.
Trip leasors, such as Kusley had been for the past 3 years,
are looked upon as risks, whose employment records are
difficult, if not impossible at times, to check. Accordingly,
the Respondent has adhered to its policy of not hiring
driver applicants whose most immediate employment has
been of this nature. Such was the case of Kusley.
Notwithstanding efforts by the General Counsel to show to
the contrary, the record supports the Respondent's position
that the Company had not deviated from such a policy, that
the Company had at no time apparent hired a driver whose
immediate employment over any period of time was limited
to trip leasing. Although Coppens, because admittedly the
Respondent needed drivers, sought advice from Joseph
Farhat, Respondent's Director of Personnel and Safety, as
to the possibility of making an exception in the case of
Kusley, in view of the 3-year period involved it was decided
that they could not deviate from company policy.
Accordingly, I find that , in refusing Kusley's employment
application, the Respondent was following established
company policy. This, coupled with a lack of proof that the
Respondent was discriminatorily motivated in adhering to
such policy, compels a finding , which I make, that the
General Counsel has failed to prove by a preponderance of
the credible evidence that the Respondent unlawfully
refused employment to Kusley in violation of Section
8(a)(3) and (4) of the Act.
While Hall's question to Kusley on December 8 during
his review of Kusley's application as to "How active were
you in the strike in 1967?" would, under most circum-
stances, constitute unlawful interrogation violative of
Section 8(a)(1) of the Act, I find that in context here it
would constitute nothing more than a de minimis violation.
Accordingly, I find it unnecessary to determine whether
such question was in contravention of the Act.9
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case , I make the following:
9 Carpet Man, inc, 170 NLRB No 45, fn I
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent, R-W Service System , Inc., is
engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. The Respondent has not engaged in any unfair labor
practices as alleged in the complaint.
RECOMMENDED ORDER
It is recommended that the complaint, herein, be
dismissed in its entirety.