Red Arrow Freight Lines

National Labor Relations Board - Board Decisions

May 13, 1969

175 N.L.R.B. 950 (N.L.R.B. 1969)

950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Red Arrow Freight Lines and Lyal L . Foster and
Southern Conference of Teamsters. Cases
16-CA-3391 and 16-CA-3415
May 13, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On February 11, 1969, Trial Examiner Paul
Bisgyer issued his Decision in the above-entitled
proceeding finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that the Respondent had not
discriminated against employee E. D. Baker in
violation of Section 8(a)(1) and (3) of the Act as
alleged in the complaint. Exceptions to the Trial
Examiner's Decision and briefs in support of
exceptions were filed by the Respondent, by the
Charging Party, and by the General Counsel.
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 made by the
Trial Examiner 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, the briefs, and
the entire record in this case, and adopts the
findings, conclusions, and recommendations of the
Trial Examiner except as modified below.
The Trial Examiner found, and we agree, that the
Respondent's employment application, which
inquired into union affiliation and was used in
discriminatorily denying Foster employment at the
terminal in Dallas, was violative of Section 8(a)(1).
Since, however, the application was uniformly
utilized in the hiring process at all of the
Respondent's terminals in Texas, we shall, in
accordance with the Charging Party's contention,
broaden the Recommended Order to require the
posting of appropriate notices at all of the
Respondent's terminals in Texas.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent,
Red Arrow Freight Lines, San Antonio, Texas, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order, as so modified.
Delete the words "its terminal in Dallas, Texas"
from paragraph 2(d) of the Recommended Order
and substitute the following therefor: "all of its
terminals in Texas."
TRIAL EXAMINER'S DECISION
PAUL BISGYER, Trial Examiner: This proceeding, with
all the parties represented, was heard on November 6, 7,
and 8, 1968, at Dallas, Texas, on the consolidated
complaint of the General Counsel issued on October 4,
1968,' and the amended answer of Red Arrow Freight
Lines, herein called the Respondent or Company. In issue
are the questions whether the Respondent discriminatorily
denied employment to Lyal L. Foster and discharged
Eddie D. Baker because of their membership in, or
activities on behalf of, Southern Conference of Teamsters,
herein called the Union or Teamsters, thereby violating
Section 8(a)(3) and (1) of the National Labor Relations
Act, as amended,' and whether the inclusion of a question
in an employment application used by the Respondent
requiring applicants to state their union affiliation
impinged upon their statutory rights in violation of
Section 8(a)(1) of the Act. Although afforded the
opportunity, the parties waived oral argument but
thereafter filed briefs in support of their respective
positions.
Upon the entire record,' and from my observation of
the demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Texas corporation with its principal
office and place of business in San Antonio, Texas, is
engaged in the intrastate transportation of commodities
moving in interstate and intrastate commerce . It operates
terminals and other facilities in Dallas and other cities in
Texas. Only the Dallas terminal is involved in this
proceeding. In the course and conduct of its business
operations , the Respondent annually receives revenues in
excess of $50,000 from interstate motor freight carriers
for whom the Respondent transports within Texas freight
which originates outside the State.
The consolidated complaint is based on separate charges filed in Case
No. 16-CA-3391 on August 1, 1968, and in Case No . 16-CA-3415 on
August 28, 1968 . Copies of the respective charges were duly served on the
Respondent by registered mail on the dates of filing.
'Insofar as relevant , Section 8 (a) makes it an unfair labor practice for an
employer
(1) to interfere with , restrain , or coerce employees in the exercise of the
rights guaranteed in section 7;
n ♦ Y t t
(3) by discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage
membership in any labor organization ....
Section 7 provides , among other things, that Employees shall have the
right to self-organization , to form , join, or assist labor organizations, to
bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , and . . . to refrain from
any or all of such activities ....
'The court reporter's notation on Resp . Exh. 3 is hereby corrected to
conform with the transcript of testimony to show that the exhibit was
rejected.
175 NLRB No. 160
I
RED ARROW
It is conceded, and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. I further find that
effectuation of the policies of the Act warrants the
Board's assertion of jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
The Union admittedly is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background; Issues
The Union's efforts to organize certain of the
Respondent's employees began some 25 years ago but
without success.' During the past 15 years or so, the
Respondent has recognized the Union of Transportation
Employees, herein called UTE, as the
collective-bargaining representative of the Company's
employees pursuant to successive contracts. In about
March of 1967, while the Respondent and the UTE were
engaged in negotiating their current contract,' the Union,
following a period of inactivity, renewed its organizational
campaign among the Respondent's city and line
truckdrivers and dockmen at the Dallas terminal. In
support of its drive, the Union solicited from these
employees signatures to individual letters addressed to the
Respondent, with copies to be sent to- the UTE and the
Board's Fort Worth Regional office. These letters put the
Respondent on notice that the signatory employee was
resigning from membership in the UTE and requested the
Respondent to discontinue the deduction of UTE dues
from his wages. In addition, these letters stated that the
particular employee intended "by all lawful and proper
means to seek to encourage . . . [his] fellow employees to
join and support the Teamsters' Union, in the hope that in
the future the Teamsters' Union can be established as the
bargaining representative for all Red Arrow employees."
The record shows that 36 withdrawal letters were received
by the Respondent on various dates between April and
October 1967 and 37 letters on various dates between
April and September 1968. At the time of the hearing
there were approximately 200 employees at the Dallas
terminal covered by the UTE contract.
Harold Sheppard, vice president in charge of the
Respondent's terminals , candidly admitted that as between
the UTE and the Teamsters the Respondent preferred
dealing with the UTE as the employees' bargaining
'During that organizational drive, the Union in 1946 filed unfair labor
practice charges against the Respondent and other employers which
culminated in a Board Decision and Order, finding among other things,
that the Respondent formed and dominated the National Association of
Motorized Common Carrier Truck Line Employees in violation of Section
8(a)(2) and (1) of the Act and ordering the disestablishment of that
organization . Red Arrow Freight Lines, Inc., 77 NLRB 859 enfd . 180 F.2d
585 (C.A. 5), cert. denied 340 U.S. 823. Thereafter , the Court denied the
Board's petition to adjudge the Respondent in contempt of its decree for
recognizing and bargaining with Union of Transportation Employees, the
alleged successor to the Association , as the employees' exclusive
representative . N.L.R.B. v. Red Arrow Freight Lines, Inc., 193 F.2d 979
and 213 F .2d 260 (C.A. 5).
'On April 5, 1967, the Respondent and the LITE reached and signed
their current agreement . This and other facts relating to the Union's
renewed organizational drive are set forth in Trial Examiner Milton Janus'
Decision in Red Arrow Freight Lines . Case No. 16-CA-3016 issued April
3, 1968, dismissing the complaint. The Board adopted the Trial Examiner's
Decision on May 14, 1968. 68 LRRM 1240.
FREIGHT LINES 951
representative. Manifestly, it is management's perogative
to express its preference so long as it does not engage in
conduct which infringes upon employees' statutory rights.
The principal issues, therefore, presented here are whether
the Respondent violated such rights when it refused to
hire Lyal L. Foster and discharged Eddie D. Baker. It is
the position of the General Counsel and the Union that
both were discriminated against because of their
Teamsters membership or activities, whereas the
Respondent vigorously insists that its action was
motivated solely by legitimate business considerations.
Specifically, the Respondent argues that Foster was not
employed because of a physical impairment of his right
hand and Baker was discharged for insubordination.
Another question also to be decided is whether the
Respondent unlawfully included in its employment
applications a question relating to union membership,
which has since been deleted.
B. The Refusal to Employ Foster
1. The evidence
a. The July 29 job application
Foster has been employed in the trucking industry for
some 20 years as a local and over-the-road or line driver,
operating 1 1/2 ton bobtail trucks or vans, 40-foot
trailers, and road tractors and trailers. He also has driven
a city transit bus. In connection with his employment with
different employers, he has taken and passed
approximately nine physical examinations given by
company designated doctors in conformity with Interstate
Commerce Commission Safety Regulations.'
On July 22 or 23, 1968,' Foster sought employment as
a driver through American . Personnel, a private
employment agency in Irving , Texas, a suburb of Dallas.
There he filled out an application and was interviewed by
Orella Highfill, an employment counselor of the agency.
At this time no suitable job was available for Foster.
On Friday afternoon, July 26, Doris Pearce,' the
Respondent's office manager , telephoned American
Personnel and placed an order for seven or eight local line
drivers.' Highfill mentioned Foster and described his
qualifications to Pearce who expressed an interest and
willingness to speak to him either that evening or the
following Monday morning, July 29.
'Drivers' qualifications are set forth in the ICC's latest Revised Safety
Regulations, issued on January I, 1967. Insofar as relevant, these
regulations provide:
S.191.2 Minimum requirements . Except as provided in paragraph (e) of
this Section, no person shall drive, nor shall any motor carrier require or
permit any person to drive, any motor vehicle unless such person possesses
the following minimum qualifications:
(a) Mental and Physical condition.
(1) No loss of foot, leg, hand or arm.
r t r
(3) No loss of ringers , impairment of use of ... fingers , hand or arm, or
other structural defect or limitation , likely to interfere with safe driving.
Paragraph (e) provides for waiver , which is not involved in this proceeding.
In addition to the foregoing physical requirements , the motor carriers may
impose others if they should so decide , as the Respondent has done in
requiring the driver to take a specified blood test and back X -rays. As
indicated later , these additional tests , which Foster passed, are not involved
in his alleged failure to qualify as a driver for the Respondent.
'Unless otherwise indicated , all dates refer to 1968.
'Erroneously spelled Pierce in the transcript of testimony.
'Local drivers pick up and deliver freight in the city or town, while line
or over-the-road drivers operate their trucks between cities or towns.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Monday morning, Foster arrived at the
Respondent's terminal office where the receptionist gave
him an application form to complete. After filling it out,
Foster handed the executed application to the receptionist
who, in turn, brought it to Pearce in her private office.
Pearce "glanced" through the application, observing that
there were empty spaces relating to labor organizations,
fraternal organizations, personal references, and
experience. She thereupon returned the application to the
receptionist with instructions to have Foster furnish all the
information requested in the application form and to
advise him that he would be called after his application
was checked out. In her subsequent testimony, Pearce
added that the receptionist was instructed to tell Foster
that he would be called back "at our convenience" after
his references10 were checked rather than have him wait an
hour or longer for an interview. According to Foster's
uncontradicted testimony, which I credit, the receptionist
informed him that he would be advised about 2 o'clock in
the afternoon concerning his application" and he
suggested that the Company communicate with the
employment agency because he had no telephone. Foster
then left.
About 10-10:30 that morning, less than 30 minutes
after Foster's departure, the receptionist returned Foster's
application to Pearce. However, information concerning
fraternal organizations and two personal references were
still missing and an inadequate address was given for a
third personal reference. Answering the item in the
application requesting "the name of any labor
organization of which you are a member," Foster wrote
"None-Did belong to Teamsters but not any longer."
Immediately after leaving the terminal Foster went to
the American Personnel Employment Agency and
reported to Highfill that he had filed an application but
had not been interviewed. At his suggestion, Highfill
telephoned Pearce and inquired about Foster's interview.
Pearce replied that she had taken his application without
interviewing him. Requesting Highfill "to keep this in
confidence," Pearce told her that she "need[ed] to know
how - [Foster] stands with the Union." She explained
that she had some questions about his union affiliation
because he originally did not show his membership in his
job application and thereafter stated in it that he had
"none," although he formerly belonged to the Teamsters.
She then asked Highfill what Foster had stated in the
application he had filed with her agency. Highfill
answered that nothing was mentioned but that she would
try to get this information from Foster and let her know.' 2
Under cross-examination, Pearce testified that before
Highfill called her, she had examined Foster's application
and had some question about his statement regarding his
union membership;" that she wondered "how come he
didn't belong to the Union any longer"; that she was
"Foster had previously noted in the application prior employment
history which witnesses referred to as business references . At this time
Foster also had furnished only one personal reference.
"The receptionist , Louise Patton, testified that it was Pearce's practice
to have her tell job applicants who were not acceptable to leave and that
he would be subsequently advised about his application . She further
testified that, if "the application sounded good ," she was instructed to tell
the applicant to wait for Pearce to speak to him. Pearce , however, denied
that it was her normal practice to interview drivers at the time of the
application . Patton , who is no longer in the Respondent ' s employ,
impressed me as a disinterested and truthful witness and I credit her
testimony.
"The foregoing findings concerning the Highfill -Pearce telephone
conversation are based on their combined testimony.
"curious about anything that's shown on an application";
and that she "wanted to know if he had been blackballed,
if he had left [the Teamsters] of his own accord, or what,"
and whether he still belonged. When questioned
concerning the relevancy of union membership to Foster's
employment, she gave the following testimony:
Q. And how is that relevant to your hiring practices?
A. It has nothing whatsoever to do with the hiring
practice, other than if he had been blackballed.
Q. Blackballed and what else?
A. Or if he had left of his own accord or for what
reason he did leave, because these floaters, non-Union
people, that don't want to belong to the Union, we've
got trouble.
Q. And you like to hire people that want to belong
to the Union, don't you?
A. No, it's not necessary.
Q. Well, what is necessary? What is important about
this question and what is it that you wanted to know?
. and why is it relevant to his being hired?
A. Because we have people who come in that have
been kicked out of the Union. They can't get a job
anywhere else. They've been uncooperative with
management . Why would we want to put up with these
kind of people?
Q. . . Did you ask ... [Highfill] how he stood with
the Union?
A. No, Sir.
Q. You didn't?
A. No, sir. I asked how he stood with his labor
organization.
Q. Which was the Teamsters, is that right?
A. Yes.
Q. You knew that it was the Teamsters?
A. Yes.
Q. And you knew the company policy about the
Teamsters?
A. I told her of his Union affiliation.
Q. But you knew that Red Arrow didn't want the
Teamsters Union to represent the employees?
A. Yes.
At the conclusion of her telephone conversation with
Pearce, Highfill turned to Foster, who was present during
this call , and told him that the Respondent was satisfied
with his qualifications but wanted to know how he stood
with the Union . Remarking that he anticipated that this
matter would come up because of the inclusion of the
union membership inquiry in the Company's employment
application form , Foster stated that he had been in good
standing in the Teamsters organization for 18 years but
that he was now a little behind in dues. He also
volunteered that he had never caused anyone trouble.
After waiting some 10 to 15 minutes, Highfill called
Pearce back and advised her that Foster had not paid his
union dues but had not caused any trouble . According to
Pearce, Highfill also reported that Foster said that he was
once a member of the Union but not at present. At the
close of this conversation , Highfill requested an interview
for Foster . There is a sharp conflict in the testimony
concerning Pearce's response . Highfill testified that Pearce
replied, "No, absolutely not. Not under any conditions."
"Pearce testified that, in checking over Foster's application when the
receptionist brought it to her a second time, she had not noticed the
omission of the two personal references and that she first became aware of
it after the second telephone conversation with Highfill on July 29.
RED ARROW FREIGHT LINES
Pearce, on the other hand , denied giving the quoted reply,
testifying, however, that her answer was simply that there
was no need to send Foster back to her and waste his and
her (Pearce 's) time because she had to check Foster's
references."
I find Highfill 's testimony regarding Pearce 's response
to her request for Foster' s interview more credible than
Pearce's version . Highfill was a disinterested and
convincing witness who had nothing to gain from slanting
or coloring testimony . against the Respondent . If anything,
her business interests would seem to lie with the
Respondent as a source for placing the employment
agency's job applicants . Moreover , the Respondent's
unexplained delay in notifying Foster to appear for
interview until August 28, although answers to its
reference inquiries had been received the first week in
August, as is hereafter discussed , suggests the absence of
an intention on July 29 to interview Foster in the face of
the Respondent's need for drivers" and reinforces
Highfill's testimony. '
Having been informed by Highfill that Pearce was not
disposed to grant him an interview , Foster called the
Respondent about 1 o'clock the same afternoon (July 29)
and spoke to Terminal Manager Joseph J. Shaw. Foster
complained that he was not given an interview after filling
an application for a line driver's job; accused the
Respondent of not hiring him because he was a member
of the Teamsters, stating that he was. so informed by the
lady at the employment agency (Highfill); and declared
that he was goipg to take the matter up with Fort Worth
(apparently referring to the Board's Regional Office).
Shaw denied the accusation and voiced doubt that Pearce
would make that statement to anyone at the employment
agency. Shaw further asserted that it was Company policy
to hire without reference to union membership, pointing
out that the Company had in its employ members of the
Teamsters and the UTE and other men who did not
belong to any organization at all and, in addition, that
Texas had a right-to-work law. Shaw then asked Foster to
hold the line while he spoke to Pearce who advised him
that Foster had applied for a job but that he was not
interviewed ' because of his , failure to complete his
references in, the application . She also denied to Shaw that
she told Highfill that she would not hire Foster because he
was a member of the Teamsters . Shaw then resumed his
conversation . with Foster and conveyed the information he
had received from , Pearce . Pearce thereupon got on the
wire and, after Shaw , hung up, spoke to Foster. Pearce
explained to Foster - that the reason she had not
interviewed him was that he would have had to wait
"approximately'-q, couple of hours" before she would have
had the opportunity to see him; that, as a courtesy to him,
she had instructed the, receptionist to tell him to leave; and
that, in any event , shg could not have hired him until his
references had first been checked . Pearce also told Foster
that his application was incomplete because he had
"Although Foster- 'had, previously noted his business references in his
application , he=had not yet furnished all of the required personal
references . Pearce, however, did not ask - Highfill in the above-described
telephone conversations on July, 29 to secure the personal references from
Foster . I seriously doubt Pearee's proffered explanation for her failure to
do so that , although she had examined Foster's application shortly before
she received Highfill 's first telephone call, she had not noticed their
omission.
"It is noted 'that a line driver was hired on July 31 , the same day he
applied and was interviewed ; another was reemployed on August 22; a
third was hired on August 28; a city driver was hired on September 3 and
5; and several dock workers were also employed during this period.
953
omitted two personal references, and the third had an
insufficient address. Foster stated that he would call back
and furnish this information.
On July 30, Foster telephoned Pearce and gave her the
references which she then noted in Foster's application.
Pearce also sent out inquiries to these references either the
same day or shortly thereafter. It appears that inquiries to
Foster's former employers were mailed on July 29.
Replies from the employers and the personal references
were received within a week. In the meantime, on August
1, Foster filed an unfair labor practice charge with the
Board's Regional Office in Fort Worth which alleged that
the Respondent unlawfully denied him employment
because of his Teamsters membership and activities. A
copy of this charge was mailed to the Respondent the
same day.
According to Highfill's credible testimony, Pearce
called her a few days after July 29 and warned her she
could be sued for giving out confidential information
received from an employer!6
b. The refusal to hire on September 4
Foster next heard from the Respondent when . he
received a letter dated August 28 over Office Manager
Pearce's signature on his return to the city on Labor Day,
September 2. Referring to his July 29 application for
employment with the Company, the letter stated:
The check of your references has now been completed.
Please report to this office for papers for a physical
examination should you still be interested in
employment with Red Arrow Freight Lines.,
In response to the letter, Foster appeared at the
Respondent's terminal on September 3. During his
interview by Pearce, Foster expressed preference for a line
driver job. Pearce then arranged for Foster's physical
examination by Dr. James K. Ross the following day and
instructed Foster to return to the office upon its
completion,
About 8 o'clock the next morning (September 4),
Foster reported at Doctor Ross ' office. A nurse
questioned -him concerning his medical history, recording
his answers on a form entitled Physical Examination of
Drivers., Although Foster's middle finger of his right hand
was stiff and his index finger on the same hand was
partially so as a result of the "leaders" having been cut
about 18 or 19 years ago, the Physical Examination form
shows a negative answer to a question whether he had a
"[p]ermanent defect as a result of disease or accident.""
Foster gave this answer because the abnormality did not
affect his ability to work. The nurse also took several
X-rays of Foster's back and gave him a Keystone driver
vision test. Because the nurse could not locate a vein in
Foster's arm from which to draw blood for a blood test,
Dr. Ross himself drew the blood."
"Pearce admitted that she called Highfill but testified that she told
Highfill that she had never said that Foster was denied employment
because of his Teamsters membership She further testified that she told
Highfill that such a statement could subject both American Personnel and
the Respondent to liability under the Texas right-to-work law.
"In his application for employment with the Respondent , Foster
answered "no" to an inquiry whether he had "any type of physical
disability at present ." This answer appears to be true in view of the fact
that Foster has been driving trucks for some 20 years.
"Foster so testified. According to Dr. Ross , he thought the nurse drew
the blood because she normally did it . The nurse, however, did not testify.
As will later be discussed, I do not believe that Dr. Ross had an
independent and clear recollection of this event, and I find , instead, that
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, Foster was called into Dr. Ross' examining
room where he underwent "a complete physical
examination," as Dr. Ross described his examinations.
Dr. Ross, however, did not look at the fingers of Foster's
right hand or question him about them. According to
Foster, Dr. Ross asked him in the course of his
examination whether he had any disabilities and that he
replied in the negative. Dr. Ross, however, testified that
Foster orally "denied any defects" and that he (Dr. Ross)
noted the word "Negative" in the blank space in the
Physical Examination form following "Other illnesses or
injuries." At the conclusion of his physical examination,
Dr. Ross informed Foster that he had passed. Thereupon
Dr. Ross signed the Doctor's Certificate embodied in the
Physical Examination form and an ICC card, both of
which certified that Foster had qualified under applicable
ICC Safety Regulations.19 At Dr. Ross' request, Foster
signed these documents in the places designated for
driver's signature. Before leaving, Dr. Ross advised Foster
that he would mail the documents to the Company.
Following his physical examination, Foster promptly
returned to the terminal and informed Pearce that he had
passed. Pearce then handed him W-2 and other forms
which he filled out. At about this time Pearce remarked
that he was now an employee of the Company.
Pearce then proceeded to take Foster's fingerprints but
encountered some difficulty with his two stiff fingers on
his right hand. Foster explained that this condition was
due to the fact that the "leaders" were cut about 18 or 19
years ago. He also asserted that this condition had not
kept him from working or driving since that time. After
being fingerprinted, Foster was given a driving test by a
supervisor, which he also passed.
Pearce testified that, while Foster was taking the
driving test, she received a telephone call from Dr. Ross
that he wanted to see Foster again. She further testified
that she did not ask him why he wanted to see Foster;
nor, as she remembered, did Dr. Ross mention anything
concerning Foster's hand on this occasion.
Dr. Ross' account varies somewhat from Pearce's. Dr.
Ross initially testified that, after Foster left his office, he
telephoned Pearce and told her that he would like to see
Foster again to reexamine his hand but did not refer to
any deformity. However, when shown his sworn statement
on his own letterhead which he had given a Board agent
only 2 days after the event (September 6), he changed his
testimony to indicate that he did tell Pearce of the
deformity.
Explaining the reason for making this telephone call to
Pearce and the need for. reexamining Foster, Dr. Ross
testified, as follows: After Foster left his office, Dr. Ross
became involved in the treatment of a patient. When he
was finished, his nurse informed him that Foster had a
deformity of his hand and could not make a fist to enable
her to draw blood from his right arm for a blood test with
the result that she had to take blood from his left arm.'°
The nurse, however, did not record her observation on the
Physical Examination form. Because Foster's hands
Foster's testimony is more reliable.
"The Doctor 's Certificate states, as follows:
This is to certify that I have this day examined FOSTER LYAL [sic] in
accordance with 191 .2 and the physical examination procedure
prescribed by the Motor Carrier Safety Regulations , Revision of 1952 of
the Interstate Commerce Commission, and that I find him Qualified
under said rules . I have kept on file in my office a completed
examination form for this person.
The contents of the ICC card, which is ultimately given to the driver, is
identical to the above -quoted Doctor's Certificate.
"looked perfectly normal" to him and he had not noticed
the deformity during his initial examination of Foster, he
decided to recall Foster for reexamination. However, in
his pretrial sworn statement mentioned above, Dr. Ross
related that Foster's initial examination
was normal except for his right hand. He had stiffness
of the right fingers and an inability to flex his right
middle finger. According to the ICC regulation manuel
(sic), any deformity or disability that might interfere
with safe driving should disqualify the applicant. With
the specifications of Red Arrow Freight Lines in mind I
did reject Mr. Foster. . I called Mrs. Doris Pierce
(sic) and told her of his deformity and that I had
rejected Mr. Foster.
It is always my displeasure to have to reject a man
for employment so to be absolutely sure of the extent
of the deformity I did call Mrs. Pierce back and asked
her to have the boy come back to see me. After the
second examination I felt the same as on the initial
examination.
When confronted with his affidavit, which he conceded he
read before signing , he testified that the statement that he
had rejected Foster at his first examination was incorrect.
Upon completing his driving test, Foster returned to the
office where Pearce advised him that she had a report that
he was "a real good driver." She also informed him that
Dr. Ross had called and wanted to see him but did not
know the reason. Foster then went directly to Dr. Ross'
office.
According to Foster this is what occurred on his second
visit to Dr. Ross' office on September 4: Dr. Ross
inquired of him what was the matter with his hand. He
replied that he had cut the "leaders" of the two fingers of
his right hand about 20 years ago. As directed, Foster
then extended both his hands, palms up and parallel with
the floor. Dr. Ross simply looked at them without
touching or otherwise examining them or asking Foster to
make a fist to determine whether he could grip a steering
wheel, although Dr. Ross testified that Foster could not
make a fist. In answer to Dr. Ross' question whether his
two fingers were stiff, Foster replied that the middle finger
was stiff and the index finger was only partially so. Dr.
Ross then read from a book to the effect. that a person
who was physically unfit was disqualified. Foster,
however, protested that he had driven trucks for 20 or 21
years without having had any major accidents and that
Dr. Ross ought to pass him. Dr. Ross responded that he
could not qualify him but remarked at one point, "Why
don't you stay somewhere where you are wanted." Before
their conversation ended, Dr. Ross added, however, that
he would qualify him if the Company wanted it that way.
Stating that he would call the Company, Foster left.
Dr. Ross testified, in substance , that the only thing he
remembered about this second examination was that
Foster had a deformity that would interfere with safe
driving and therefore rendered him unfit to drive a truck;
that he reached this conclusion without inquiring into
Foster's past experience as a truckdriver; and that he,
accordingly, added the notation on Foster's Physical
Examination papers "Rejected due to severe deformity of
Rt. hand." Dr. Ross also categorically denied advising
Foster on this or any occasion that he should work
somewhere else where he was wanted.
The record establishes that on July 15 Dr. Ross had
examined Foster for employment with Roadway Express,
"As indicated above, I have credited Foster's testimony that because of
the nurse's inability to locate his veins, Dr. Ross himself drew blood.
r
RED ARROW FREIGHT LINES
a motor carrier, certified Foster as a driver qualified
under ICC Safety Regulations , and issued to him an ICC
card to that effect. In addition, 3 weeks after Dr. Ross
had rejected Foster for employment with the Respondent,
he again examined Foster and certified him for
employment with Transcon Lines, another trucking
company, as a qualified driver and issued a similar ICC
card to him, even though the Physical Examination papers
have the notation alongside "Other illnesses or injuries"
"Rt. 3rd. finger stiff, 1948," and a statement in another
part of the papers "Inability to flex Rt. Middle Finger -
Partial loss of flex of Rt. Index finger."
Concerning the Transcon physical examination, Dr.
Ross testified that he found that Foster, whom he had
recognized , was unable to flex his right middle finger and
had a partial loss of flexibility of his right index finger;
that for this reason he called Transcon and informed the
company that Foster had "a deformity of his hand and
that - [he, Dr. Ross] felt - [Foster] shouldn't drive";
that, in reply to the Company's inquiry whether Foster
could work on the dock, he answered in the affirmative;
and that he therefore passed Foster. Despite his purported
opinion that Foster suffered a disability which rendered
him unfit to drive a truck, Dr. Ross, as indicated above,
signed the Doctor's Certificate in the Physical
Examination papers and the ICC card, qualifying Foster
as a safe driver under ICC Regulations." It appears quite
clearly from Dr. Ross' testimony that he will certify
individuals as drivers qualified under ICC Regulations if
requested to do so by the motor carrier for the asserted
reason that it is the motor carrier that has the
responsibility to run the truck line. Indeed, he indicated
that, had the Respondent advised him that it wanted to
employ Foster, he would have passed him.
With respect to his Transcon employment and physical
examination, Foster gave the following uncontroverted
testimony: After working as a casual local driver for
Transcon Lines for about 6 weeks, he was sent to Dr.
Ross for the customary ICC physical examination before
gaining permanent employment. Among other things, Dr.
Ross directed him to make both fists. At the conclusion of
the examination Dr. Ross told him that he passed his
physical and thereupon signed the physical examination
papers and the ICC card certifying to Foster's driver
qualification. For about 2 weeks thereafter Foster
continued to drive trucks as a casual employee when his
employment became permanent. At that time, the driving
jobs were put up for bid and, since he was last on the
seniority list, he lost out on a driving position and was
assigned the job of hooking up trailers and tractors and
performing other duties. This job involved operating the
trucks on the premises. Transcon never told him that Dr.
Ross limited him to dockwork.
According to the testimony of Dr. Ross and the
Respondent's office Manager Pearce, Dr. Ross called
Pearce a second time, reporting that he had rejected
Foster because of his deformed hand. Admittedly, Pearce
did not indicate to Dr. Ross that she, nevertheless, was
willing to put Foster to work, even though, as the record
shows, dock jobs were available.
Thereafter, Foster telephoned Pearce. In answer to his
inquiry whether she had heard from Dr. Ross, Pearce
stated that she had and conveyed the information that Dr.
Ross had rejected him because of the deformity of his
hand. Foster credibly testified, without contradiction, that
"It is perfectly clear that the ICC Safety Regulations are applicable only
to drivers . Dr. Ross' testimony to the contrary is plainly erroneous.
955
he then told Pearce that Dr. Ross said that he would pass
him if Pearce were willing -to put him to work and that
Pearce's response was that she could not do that but if
Dr. Ross wanted to pass him she would employ him. On
this futile note, the conversation ended.
I find it difficult to accept' Dr. Ross' testimony
regarding his physical examinations of Foster and the
circumstances and reason for rejecting him as a qualified
truckdriver for employment with the Respondent.
Certainly, Dr. Ross, an exceptionally busy practitioner
who, among other services, performs 30 to 50 physical
examinations a day for some 500 motor carriers, could
not possibly have an independent recollection of the
pertinent events in this case. Indeed, he conceded at the
hearing that his recollection of Foster's September 4
examinations, "was brought about by all of this testimony
here." Moreover, particularly significant is Dr. Ross'
failure to furnish convincing explanation why both shortly
before and after Foster's disqualification for employment
with the Respondent he certified Foster as a safe driver
under ICC Safety Regulations for employment by two
other trucking companies in the area, Roadway Express
and Transcon. In addition, his testimonial inconsistencies
revealed by his pretrial affidavit, whether due to faulty
memory or otherwise, as well as the implausibility of his
asserted understanding that ICC certification requirement
was not restricted to drivers, detract from the reliability of
his testimony.
Equally unpersuasive is Pearce's testimony concerning
the circumstances of Foster's second examination and his
rejection for employment. Pearce's preoccupation with
Foster's membership in the Teamsters, as previously
related, and the pattern of events, as shown in the record,
weaken the credibility of her testimony.
Foster, on the other hand, impressed me as a forthright
witness not disposed to dissemble the facts. His testimony,
which was plausible and withstood the test of
cross-examination, was presented in a convincing manner.
I accordingly credit his account of the events recited
above.
2. Concluding findings
From a careful appraisal of the evidence, I find that
Foster was denied employment on July 29 and September
4 because of his membership or suspected membership in
the Union and not because on July 29 his references had
not yet been checked and on September 4 his physical
infirmity disqualified him, as the Respondent vigorously
urges.
As fully discussed above, Office Manager Pearce
demonstrated a too overly concern over Foster's union
membership from the very moment he submitted his
employment application in which he failed to furnish,
among other things, requested information concerning his
union affiliation. Pearce promptly returned the application
to the receptionist with instructions to have Foster fully
complete his application. Although, Foster thereafter
wrote in his application "None. Did belong to Teamsters
but not any longer," this evidently did not satisfy Pearce
for as soon as Orella Highfill, who had referred Foster to
her for employment, telephoned to ascertain why Foster
was not interviewed, Pearce, in confidence, promptly
raised the subject of Foster's union membership.
Declaring that she needed to know how Foster stood with
the Union because of doubts created by his original failure
to answer the question in the application and the
subsequent answer quoted above, she asked for the
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
information he had given in the employment agency's
application. When Highfill replied that the application did
not contain such information, Pearce requested Highfill to
secure it directly from Foster which she agreed to do.
Significantly, when Highfill called Pearce back 10 to 15
minutes later and reported that Foster had not paid his
dues and had not caused any trouble, her efforts to secure
an interview for Foster were, nevertheless, frustrated by
Pearce's response, "No, absolutely not. Not under any
conditions." I have no doubt that Pearce's preoccupation
with Foster's Teamsters' membership is but a reflection of
the Respondent's admitted preference for the incumbent
union , UTE, which the Teamsters has for years been
trying to supplant.
The Respondent's explanation for not interviewing
Foster on July 29 that Pearce was too busy and did not
want him to waste his time waiting until she was available
and that, in any event, she had to check his references
which also allegedly accounted for the subsequent delay in
interviewing him, just does not ring true. This explanation
is clearly belied by the fact that at the very time when
Pearce placed the order for drivers with Highfill on
Friday, July 26, Pearce expressed a desire for an early
interview of Foster, whose qualifications and experience
had impressed her. In all probability, it was, as indicated
above, Pearce' s suspicions about Foster's union affiliation,
inspired by his initial failure to furnish the requested
information in his application that prompted Pearce to
refuse to interview him at the time he filed his application.
Apparently, this conformed with Pearce's practice to tell
unacceptable job applicants to leave and that they would
be later advised. Moreover, if the investigation of
references played any part in the delay in granting Foster
an interview, it is odd that Pearce, in the telephone
conversations with Highfill on July 29, did not request
Highfill to obtain from Foster the names and addresses of
two additional personal references which Pearce required
but which Foster had omitted from his application.
Indeed, it was only later in the afternoon of July 29, when
Foster complained to Terminal Manager Shaw on the
telephone that he was denied an interview and
employment because of his membership in the Teamsters
that Pearce asked him for the two additional personal
references.
Also revealing that it was not the need to check
references that held up Foster's interview and employment
is the fact that, despite the Respondent's receipt of replies
to its inquiries from Foster's references within the first
week in August, Pearce did not communicate with Foster
until August 28 when she sent him a letter inviting him to
report to the terminal to pursue his application further if
he were still interested. Although one line driver was hired
on July 31, the same day he applied and was interviewed,
another was reemployed on August 22, and a third was
hired on August 28, no reason was offered for the delay in
communicating with Foster. This becomes even more
difficult to understand since the Respondent had a need
for more drivers, particularly one with Foster's 20 years'
experience and ICC qualification.
All things being considered, I am led to the inescapable
conclusion that the Respondent's failure to interview and
hire Foster on July 29 was due to his membership or
suspected membership in the Teamsters.
I further find that the same discriminatory reasons that
impelled the Respondent to deny Foster employment on
July 29, dictated its refusal to hire him on September 4.
Although it appears that the Respondent experienced a
change of heart and proceeded to process Foster's
application on the latter date, the circumstances
surrounding Foster's purported disqualification refute that
it was the two stiff fingers of his right hand that
accounted for the denial of his employment, as the
Respondent contends.
As previously discussed, Pearce sent Foster back to Dr.
Ross' office for an examination of his hand after he had
passed a complete physical examination earlier in the day
in which he was certified as a qualified driver under ICC
Safety Regulations and after he had passed the driving
test given by a Company supervisor. I seriously doubt that
Dr. Ross had initiated the second physical examination
because his nurse had called his attention to Foster's
inability to make a fist to enable her to draw blood from
his right arm for a blood test. In the first place, I have
found that actually it was Dr. Ross himself who drew the
blood because his nurse was unable to locate Foster's
veins and thus presumably became aware of Foster's stiff
fingers to which he attached no significance. Secondly, if
the condition of Foster's right hand was important enough
for the nurse to call Dr.. Ross' attention to it, it is
surprising that the nurse had not recorded this fact on the
physical examination papers, which she plainly did not do.
Thirdly, it is highly questionable that Dr. Ross' first
examination of Foster was so perfunctory that the
condition of Foster's right hand would escape notice. On
the contrary, I find it more than an odd coincidence that
the second examination should become necessary as soon
as Pearce learned of Foster's stiff fingers while
fingerprinting him. Under the circumstances, it seems to
me to be more reasonable to infer that it was Pearce who
at this time alerted Dr. Ross to the Respondent's
disinclination to hire Foster and arranged for the second
examination to disqualify Foster on this ground. Indeed,
this inference is supported by Dr. Ross' suggestion to
Foster after Dr. Ross took a cursory look at Foster's
hands during the second examination," to seek work
somewhere else where he was wanted.
Further indicating that Dr. Ross' rejection of Foster
was actually dictated by the Respondent is the fact that
both before and after he disqualified Foster for
employment with the Respondent, Dr. Ross certified
Foster as a qualified driver under ICC Safety Regulations
for employment with other motor carriers, as did other
doctors before Dr. Ross. To use the language of these
regulations , these certifications mean that Foster did not
have an "impairment of use of - fingers - likely to
interfere with safe driving." In view of the foregoing, it is
understandable why Dr. Ross' refusal to qualify Foster
was not unconditional and why he was willing to qualify
Foster if he secured the Company's consent to his
employment. However, such consent, although requested
by Foster, was not forthcoming.
Accordingly, I find that Foster's alleged physical
disability was not the true reason for the Respondent's
refusal to hire him on September 4 but actually it was a
cloak to conceal its discriminatory motivation. Therefore,
I conclude, on the basis of all the facts and circumstances
in this case, that the Respondent denied employment to
Foster on July 29 and September 4 because of his
membership or suspected membership in the Teamsters,
thereby discouraging membership in that labor
"Although Dr. Ross testified that Foster's stiff fingers prevented him
from gripping a steering wheel , he did not on this occasion even ask him to
make a fist. However, Dr. Ross asked Foster to make a fist when he
examined and qualified him for employment as a driver for Transcon Lines
less than 4 weeks later.
RED ARROW FREIGHT LINES 957
organization in violation of Section 8(a)(3) and (1) of the
Act.
C. The Discharge of Baker
1. The evidence
Baker was employed as a local truckdriver by the
Respondent from June 11, 1966, until his discharge on
August 26, 1968, under circumstances related below. He
was a member of the UTE, the incumbent labor
organization representing the Company's employees, for
about a year when he withdrew in July 1967. At that time
he signed the Teamsters' form letter of withdrawal,
previously quoted, a copy of which was served on the
Respondent, putting the Respondent also on notice of his
intention to solicit employee support for the Teamsters.
From then on Baker campaigned actively and openly on
behalf of the Teamsters, solicited employee signatures to
withdrawal letters, and became one of the three assistants
of A. E. Hill, a Company driver, who led the movement
to supplant the UTE. It appears that during the period
involved herein the relative merits of the Teamsters and
the UTE were freely discussed among employees and
supervisors at the terminal, without any interference from
the Respondent.
On August 20, 1968, an incident occurred which
resulted in Baker's discharge. The General Counsel and
the Union contend that the Respondent relied upon it
solely as a pretext to hide its unlawful motivation to
penalize Baker for his Teamsters activities and thus to
discourage membership in that organization. On that day
Harold Sheppard, the Respondent's vice president in
overall charge of its terminals , visited the Dallas terminal.
About 8 o'clock in the evening , while Sheppard and
Terminal Manager Shaw were conferring in the latter's
office, their attention was attracted by Baker's tapping on
an office window which faced the dock. Smiling, and in
jest, Baker gave Sheppard the "finger" or "shafts23 and
left the terminal, having finished his day's work. Although
Sheppard's relationship with Baker was friendly, as it was
with the other employees, he assertedly did not take
kindly to the gesture which he regarded as an obscene sign
of insubordination and disrespect to a company official
which was inexcusable . " Sheppard , thereupon , decided to
discharge Baker but asked Shaw for Baker 's personnel file
to see whether there were any mitigating circumstances.
After reviewing the file the following morning, August 21,
and finding nothing to persuade him to change his mind,
Sheppard alerted UTE representatives, in accordance with
their collective -bargaining agreement , of his contemplated
action.
"Although there is some contradictory testimony , I have no doubt that
this gesture was made in jest by Baker, who had no apparent reason to do
it willfully . The "finger" or "shaft" has an obscene connotation and is
made with the middle finger extended in a clenched fist with an upward
thrust of the arm . The undisputed evidence also establishes that this
gesture is commonly exchanged in a spirit of levity by employees , including
Baker, and supervisors on the Dallas terminal freight dock and that no
employee has ever been reprimanded for it . However , according to
Sheppard , he was not aware of this practice at the Company's terminal
and evidence to the contrary was not presented. Moreover , there is no
evidence that Sheppard was previously subjected to this gesture by any
employee or that he himself had indulged in such antics.
The record also shows that both employees and supervisors are not
reluctant users of profanity in their jobs.
"In view of the prompt action taken by Sheppard in the context of all
the facts and circumstances herein , I credit the testimony of Sheppard and
Shaw that Sheppard did not react with a smile of indifference to this
Because of Baker's absence on August 21 and 22 due to
his mother' s illness, nothing further was done with respect
to his discharge, except to remove his timecard from the
racks, until Friday, August 23, when he reported for
work. At this time he was promptly sent to Shaw's office.
There, in the presence of Shaw and UTE President Diggs
and Business Representative Robinson, Sheppard
informed Baker that he was being discharged for his
insubordinate act of giving him the "finger"; that he and
the dock foremen were entitled to his respect and should
not be the object of this gesture, and that, having given
him the "finger," he could not ignore or excuse it. This
elicited Baker' s spontaneous response that he knew that he
had made a mistake the moment he had done it and at
one point apologized for his conduct. Sheppard expressed
the opinion that Baker's separation was good for both him
and the Company, and criticized him for his attitude
towards his supervisors and dock foremen, referring to a
lunchroom incident in which Baker had made a profane
remark when Sheppard and a former terminal manager,
Wayne Neal, entered.23 Sheppard also mentioned Baker's
proclivity to pushing supervisors to the limit of their
patience and stretching Company rules and observed that
his joking had gotten out of hand. This led to a discussion
of Baker's work performance with which Sheppard was
not entirely satisfied but which admittedly did not enter
into his decision to terminate Baker. Before the meeting
closed, UTE President Diggs proposed a disciplinary
layoff instead of dismissal. In response , Sheppard stated
that his decision was final but would reconsider it over the
weekend after speaking to supervisors and that, since he
was returning to San Antonio, Texas, where the
Company's home office was located, Shaw would convey
his determination. In the meantime, Sheppard added that
Baker would be paid only 1 1/2 hours as showup time for
attending that meeting . On this note, the meeting broke
up and Baker left the terminal."
On Monday, August 26, Shaw advised Baker that
Sheppard had not changed his mind and was adhering to
his decision to terminate him. The next day Baker
returned to the terminal for his check. In a conversation
with Shaw, Baker asked him whether he would give him a
reference for other employment. Although there is some
variance in their testimony, Shaw at least admitted telling
Baker that, if inquiry were made, he "certainlty wouldn't
do anything that would be detrimental to him." '
On October 14, about 3 weeks before the hearing in
this case, Baker came to the Respondent' s Dallas terminal
to interline for another motor carrier by whom he was
temporarily employed. Sheppard approached Baker and
greeted him. In their ensuing conversation Baker asked
Sheppard for the real reason for his discharge. Sheppard
answered that it was the same as he had mentioned at the
time he was terminated and referred to his bad attitude
reflected in the "finger" incident and his conduct in
pushing supervisors to the limit of their patience. Upon
being pressed as to what he meant by his bad attitude,
Sheppard stated that ever since Baker had signed the
gesture.
"According to Sheppard, Baker was not reprimanded for this because it
was not clear whether the remark was directed to either Sheppard or Neal.
"The foregoing findings are based on the combined versions of Baker,
Sheppard and Shaw which I find are not in conflict with respect to
substantial matters.
"In view of Shaw 's presence at the August 23 discharge meeting, I
seriously doubt the accuracy of Baker's testimony that , in this conversation
on August 27 Shaw also stated , in reply to Baker' s question as to the
reason he was fired , that he did not know.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withdrawal letter and had given the Board notice of his
action , Baker did not care about anything, believing that
he could not be "touched" by the Company. Sheppard
also specifically denied that Baker' s union activities
caused the discharge and added that he would so testify in
the scheduled Board hearing."
2. Concluding findings
On the basis of the record before me, I find that the
General Counsel has failed to prove by a preponderance
of the credible evidence that Baker was discharged
because of his activites on behalf of the Teamsters, as the
complaint alleges.
As discussed above, it is undisputed that Baker had
made the unseemly gesture to Sheppard , the Respondent's
vice president in charge of all its terminals , for which
conduct he was assertedly dismissed . The fact that it was
done in jest does not inevitably mean that it was received
in the same spirit , as, indeed , it was not , since Sheppard
promptly gave thought to Baker's discharge for this
offense. Moreover, although it was common practice at
the Dallas terminal for supervisors and employees to
exchange such gestures in moments of levity, Sheppard
was not aware of it. In fact, the record is perfectly clear
that, except for the episode in question , Sheppard had
never been the object of this gesture by any employee,
much less that he had tolerated it. In such circumstances,
Sheppard ' s motive for treating Baker's conduct as an act
of disrespect and insubordination to a high -ranking
company official cannot be viewed lightly as a pretext.
Significantly, Baker realized his serious error but too late
when during the discharge meeting on August 23 he
spontaneously reacted to Sheppard's decision with the
remark that he knew he made a mistake the moment he
gave Sheppard the "finger." Also militating against an
inference that Sheppard seized upon this incident to
eliminate an active union protagonist is the fact that for
more than a year Baker, like other employees , had been
openly promoting the Teamsters in its efforts to unseat
the incumbent UTE, without any hindrance from the
Respondent or pretended reliance upon other incidents in
which Baker was involved , such as the lunchroom episode,
to punish and discipline him.
It is true that the Respondent's asserted reason for
Baker's separation is not entirely beyond suspicion. Thus,
my previous finding that the Respondent discriminatorily
denied Foster employment because of membership in the
Teamsters might reflect a disposition to take punitive
action against other Teamsters adherents and thereby
render the Respondent 's motive in Baker's termination
suspicious . But suspicion is not an adequate substitute for
evidence and requires much more than what was presented
in Baker 's case . It is axiomatic that the Act does not
prevent an employer from discharging an employee for
any reason not related to union considerations and that an
employee' s union membership or activity in such a case
does not grant him immunity from discharge or other
discipline . Of course , it is equally well settled that a
"justifiable ground for dismissal is no defense if it is a
pretext and not the moving cause ."" However, this has
not been shown to be the situation here.
As I have come to the conclusion that the General
Counsel has failed to sustain his burden of proving that
Baker's discharge was attributable to his activities on
behalf of the Teamsters , I recommend that the relevant
allegations of the complaint be dismissed.
D. The Employment Application Form
As indicated above, the Respondent has used a job
application form which required the applicant to furnish
the name of any labor organization of which he was a
member . In Foster's case , at least, this requirement was
more than perfunctory. Not only did Office Manager
Pearce return Foster's application to him with instructions
to supply this information which he had failed to do
initially, but also thereafter sought additional details from
Highfill, the representative of the employment agency
whose services the Respondent was using to recruit
truckdrivers. Moreover , I have found that Foster was
discriminatorily denied employment as a result of the
knowledge thus acquired of his membership in the
Teamsters . However, on August 29, following Foster's
filing of the unfair labor practice charge herein, the
Respondent discontinued the use of application forms
containing inquiries into the applicant's union affiliation.
In view of the absence of any demonstrated valid
justification for inquiring into a job applicant' s union
affiliation, and in view of the discriminatory use to which
the information was put in Foster's case, I find that the
Respondent 's inclusion of the union question in its
application forms constituted an infringement of
employees' self-organizational rights prohibited by Section
8(a)(1) of the Act.' In these circumstances , the deletion of
the tainted inquiry from the Respondent's application
forms subsequent to Foster' s filing of the unfair labor
practice herein, neither rendered the issue moot nor
eliminated the need for a preventive remedy."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent as described in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and
commerce among the several States , and tend to lead to
labor disputes burdening and obstructing commerce and
its free flow.
V. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, I
recommend that the Respondent be ordered to cease and
desist from engaging in the unfair labor practices found
and any like or related conduct and take certain
affirmative action designed to effectuate the policies of the
Act.
I have found that the Respondent unlawfully refused to
employ Lyal L. Foster because of his membership or
suspected membership in the Union . To remedy this
violation , I recommend that the Respondent offer him
immediate and full employment to the driver 's position in
which he would have been hired, absent discrimination,
"The foregoing findings are derived from those portions of Baker's and
Sheppard's testimony which I believe to be credible and reflect the
probable nature of their conversation.
"N L.R.B. Y. Solo Cup Company. 237 F.2d 521, 525 (C.A. 8).
"Springfeld Garment Manufacturing Company, 153 NLRB 1126; Clark
Printing Company, Inc., 146 NLRB 121; The Lawson Milk Company, 143
NLRB 916.
"Clark Printing Company, Inc., supra at 123.
RED ARROW FREIGHT LINES
without prejudice to the ' setliorit • or other rights and
privileges to which he would have been entitled , and make
him whole for any loss of earnings he may have suffered
by reason of the discrimination against him by payment to
him of a sum of money equal to that which he normally
would have earned from July 29, 1968, the date of the
initial denial of employment, to the date of the offer of
employment , less his net earnings during the said period.
Backpay shall be computed with interest on a quarterly
basis in the manner prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289-294, and Isis
Plumbing & Heating Co., 138 NLRB 716.
To facilitate the computation, as well as to clarify the
named employee's rights to employment , the Respondent
shall make available to the Board, upon request , payroll
and other records necessary and appropriate for such
purposes . I further recommend that the Respondent notify
this employee of his right to employment, on application,
if he is serving in the Armed Forces of the United States.
The posting of a notice is also recommended.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of Lyal L. Foster to discourage membership
in, and activities on behalf of, the Union , the Respondent
has engaged , and is engaging , in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
4. By the foregoing conduct and by utilizing an
employment application form requiring or requesting job
applicants to disclose their union affiliation, the
Respondent has interfered with , restrained and coerced
employees in the exercise of their statutory rights within
the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not discriminatorily discharged
Eddie D. Baker.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case , and pursuant
to Section 10(c) of the National Labor Relations Act, as
amended , it is ordered that the Respondent , Red Arrow
Freight Lines, Dallas, Texas , its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Southern Conference
of Teamsters , or any other labor organization , by refusing
to hire job applicants because of their membership in, or
activities on behalf of, such labor organization, or by
discriminating against them in any other manner in regard
to their hire or tenure of employment or any term or
condition of employment.
(b) Using an employment application form requiring or
requesting job applicants to disclose their union affiliation
in a manner constituting interference , restraint or coercion
within the meaning of Section 8 (a)(1) of the Act.
(c) In any like or related manner interfering with,
restraining or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
959
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Lyal L. Foster immediate and full
employment in the driver's position in which he would
have been hired, absent discrimination, without prejudice
to the seniority or other rights and privileges to which he
would have otherwise been entitled, and make him whole
for any loss of earnings he may have suffered by reason of
the discrimination against him in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Notify Lyal L. Foster if serving in the Armed
Forces of the United States of his right to full
employment 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, social security payment records,
timecards, personnel records and reports, and all other
records necessary or useful in analyzing the amount of
backpay due and the right to employment under the terms
of this Recommended Order.
(d) Post at its terminal in Dallas, Texas, copies of the
notice attached hereto as an "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 16, shall, after having been duly signed by an
authorized representative of the Respondent, be posted by
the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of the Trial
Examiner's Decision, as to what steps the Respondent has
taken to comply herewith.33
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges that the
Respondent discriminated against Eddie D. Baker in
violation of Section 8(a)(3) and (1) of the Act.
"In the event that this Recommended Order is adopted by the Board,
the words , "Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 16, in writing , within 10 days from the date of this Order, as to
what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
emplo ees that:
WE WILL NOT refuse to hire any applicant for
employment or otherwise discriminate against him
because of his membership in, or activities on behalf of,
Southern Conference of Teamsters, or any other labor
organization.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT use an employment application form
requiring or requesting job applicants to disclose their
union affiliation in a manner constituting interference,
restraint or coercion within the meaning of Section
8(a)(1) of the Act.
WE WILL NOT in any like or related manner interfere
with , restrain or coerce employees in the exercise of
their rights guaranteed in Section 7 of the Act.
WE WILL offer Lyal L. Foster immediate and full
employment in a driver' s position in which he would
have been hired in the absence of discrimination on our
part , without prejudice to his seniority or other rights
and privileges to which he would have otherwise been
entitled , and make him whole for any loss of earnings
suffered by reason of the discrimination against him.
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full employment 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.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of
Southern Conference of Teamsters, or any other labor
organization.
RED ARROW FREIGHT
LINES
(Employer)
Dated By
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 8A24 Federal
Office Building , 819 Taylor Street, Fort Worth, Texas
76102, Telephone 334-2921.