Roadway Express, Inc.

National Labor Relations Board - Board Decisions

Jun 1, 1979

242 N.L.R.B. 716 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roadway Express, Inc. and John Mitchell. Case 26-
CA-7147
June 1, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On February 8, 1979, Administrative Law Judge
Hutton S. Brandon issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Roadway Express, Inc.,
Memphis, Tennessee, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
i Respondent has expected to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASIE
HUTTON S. BRANDON, Administrative Law Judge: This
case was heard at Memphis, Tennessee, on September I I-
12, 1978.' The charge was filed by John Mitchell, herein
called Mitchell, on April 13, and the complaint was issued
on May 17, alleging that Roadway Express, Inc., herein
called Respondent, violated Section 8(a)(3) and (1) of the
National Labor Relations Act, herein called the Act, when
it refused to employ Mitchell on or about January 9 and
I All dates are in 1978 unless otherwise stated.
thereafter because of his union activities. The refusal to em-
ploy Mitchell was the only issue presented in this case.2
Upon the entire record, including my observation
of the demeanor of the witnesses, and after due con-
sideration of the brief filed by Respondent, I make
the following:
FINDINGS OF FA(T
I. JURISDICTION
Respondent is a corporation doing business in the State
of Tennessee with an office and place of business located at
Memphis, Tennessee, where it is engaged in the transporta-
tion of freight. During the past 12 months Respondent in
the course and conduct of its business operations received
in excess of $50,000 for the transportation of goods which
originated outside the State of Tennessee, or which were
designated for delivery to points outside the State of Ten-
nessee. Respondent by answer admits, and I find, that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. THI LABOR ORGANIZAIlON INVOI.VIDI
The complaint alleges, Respondent by answer admits,
and I find that Highway and Local Motor Freight, Local
667, affiliated with International Brotherhood of Teamsters,
Chauffeurs. Warehousemen and Helpers of America, herein
called the Union, is and has been at all material times
herein a labor organization within the meaning of Section
2(5) of the Act.
2 This case was originally consolidated by the Regional Director of Region
26 on August 25 with two other cases involving two additional Respondents.
Consolidated Freightways Corporation of Delaware, Case 26-CA-7148. and
Superior Forwarding Company. 26-CA-7150 At the hearing I granted the
motions of all Respondents to sever and try each case separately inasmuch as
the General Counsel conceded that Respondents were all different parties
and that he was not espousing any theory of a conspiracy between Respon-
dents in the unfair labor practices alleged against each of them. i.e., the
failure to hire Mitchell, the Charging Party in all three cases. Moreover, the
facts in each case were different, and a determination on anyone of the cases
was not dependent on, or directly related to. disposition of either of the
others.
The General Counsel declined to argue orally or file a brief on the prem-
ise he had never rested his case. His position in that regard was taken after I
declined his request for a continuance for an unspecified time to inspect
documents subponaed from Respondent. My denial of the continuance ol-
lowed a grant of the General Counsel's request for a recess of several hours
on the first day of hearing for the purpose of reviewing such documents. In
granting the request for a recess I specifically offered the General Counsel
the opportunity to request a continuance of several weeks for the same pur-
pose if he chose to request one at that time but added that I would not be
inclined to grant the recess in addition to a subsequent continuance. The
General Counsel opted for the recess, but the next day of the hearing he
nevertheless moved for a continuance. That request, opposed by Respon-
dent, was denied by me based on my previously stated position. Since the
General Counsel conceded that he presented all of his case except for "what-
ever" might be reveaed by further examination of subpoenaed documents. I
treated his refusal to rest as a device to avoid the impact of my denial of the
requested continuance, and seeing no denial of due process, proceeded with
the case as if the General Counsel had rested. The General Counsel contin-
ued to participate in the hearing and cross-examined Respondent's witnesses.
242 NLRB No. 116
716
ROADWAY EXPRESS, INC.
III. THE Al.I.EGED UNFAIR LABOR PRACTICES
A. Background
Mitchell, the Charging Party, worked for a number of
years for Respondent at its Memphis Terminal as a truck-
driver prior to March 1975, when he was granted a leave of
absence following his election as president of the Union.
Pursuant to article 41, section 2(b) of the collective-bargain-
ing agreement between Respondent and the Union,' which
represents certain of Respondent's employees including
Mitchell, leaves of absences for accepting employment by
the Union could be granted for up to 6 months. More spe-
cifically, section 2(b) in pertinent part states:
Employees who may on or after February , 1955, take
a leave of absence for the purpose of accepting em-
ployment with the Union or employment in a supervi-
sory capacity with the Employer shall accumulate no
further seniority beyond the date of taking the leave. If
such employees do not return to the job classification
covered under this Agreement within six (6) months
from the time they take their leave, they shall forfeit all
seniority. If they return to their job classification be-
fore the end of the six (6) months period their seniority
shall resume from the time at which it was stopped,
eliminating the period of time they worked outside the
classification. The Employer shall be under no obliga-
tion to the employee on leave of absence under this
Section except to return him to work in accordance
with his agreed seniority.
In mid-August 1975, Mitchell, while on leave of absence,
talked to W. R. Patterson, manager of Respondent's relay
terminal where Mitchell had worked, and asked Patterson
to be allowed to run a trip for Respondent so that he could
get a renewed leave of absence and thereby protect his
original seniority.' Patterson, after checking with Joe
Varble, manager for labor relations for Respondent, denied
Mitchell's request.
On September 9, 1975, after Mitchell failed to return to
work upon expiration of his leave of absence, he was "ter-
minated." Patterson marked Mitchell's employment status
form (PR-3) so as to show that Mitchell was not eligible for
rehire. This, according to Patterson's testimony, was in
keeping with a policy in Respondent's personnel manual
that "Employees who are discharged, whose resignations
are submitted in lieu of discharge, or who voluntarily quit
or resign without giving at least two (2) weeks advance no-
tice shall not be considered eligible for rehire."6 There is no
question that Mitchell did not resign nor did he ever give
Respondent any 2 week notice, oral or written, that he did
4 The agreement is referred to as the National Master Freight Agreement.
A copy of the agreement in evidence, G.C. xh. 4. is effective from April 1,
1976, to March 31, 1979. No party contends that the language with respect
to art. 41 differed in any manner in the preceding agreement effective during
1975.
'Mitchell testified that he made this request because at the time he had
not made up his mind whether he was going to complete his term as pres-
ident of the Union. While Mitchell denied the intent of this action was to
preserve his seniority there was no other credible basis for it.
' Respondent's personnel manual shows that the page upon which this
policy is found was dated "12/l/74." Patterson's uncontradicted testimony
was that the policy became effective sometime in 1974.
not intend to return to work at completion of this leave of
absence. Mitchell testified without contradiction he was
never aware that any such notice was required for rehire
eligibility.
Mitchell was advised of his termination by letter from
Patterson dated September 9, 1975. which recited the dates
of Mitchell's leave of absence and noted his failure to return
to work within 6 months from the time his leave began.7
The termination was again related to Mitchell by a second
letter from Patterson dated October 3, 1975, in which he
noted Mitchell's August request for a trip to retain his se-
niority and stated:
Your returning for one trip was not acceptable: there-
fore, your employment has been terminated, since you
did not return to work on a permanent basis at the
expiration of your leave of absence.
Mitchell replied to Patterson's October 3 letter and im-
plied that while he had asked Patterson in August for a
"turn" run he had made no statement that he intended to
run only one trip to protect his seniority. Additionally,
Mitchell protested his termination set out in Patterson's Oc-
tober 3 letter. He thereafter received no response from Pat-
terson and no grievance was ever filed on Mitchell's termi-
nation.
Mitchell continued in his position of president of the
Union until he was voted out of office in a union election
held in mid-December 1977. Thereafter he began his em-
ployment efforts with various employers in the Memphis
and other areas, including contacts with Respondent's rep-
resentatives as related below.
B. Mitchell's Efforts To Secure Work from Respondent
Mitchell testified that on or about December 27 or 28,
1977, following his loss of the Union election but while he
was still in office, he telephoned Patterson and advised Pat-
terson that he would like to return to work for Roadway on
January 9. Patterson, according to Mitchell, replied that he
had no objections to it but would have to talk to Joe Varble
about it and would have to get back with Mitchell. Patter-
son in his testimony related that he told Mitchell "words to
the effect" that he could not accept Mitchell's application
because he had been "terminated," Mitchell then asked
Patterson if Patterson minded Mitchell's "going over his
head" to "alleviate the policy" Patterson was operating un-
der and indicated he was going to talk to Jack Nelson,
Patterson's district manager and Patterson's superior. Pat-
terson apparently expressed no opposition to this. Patterson
admittedly told Mitchell in the same conversation that as
an employee and road driver for Respondent as well as
president of the Union he and Mitchell had had a pretty
"good relationship." I credit Patterson's version of his con-
versation with Mitchell in late December to the extent it
varies from Mitchell's. While Patterson exhibited a gener-
More specifically the letter stated:
You have not returned to your job classification as a road driver
within six months from the time you took your original Leave of Ab-
sence (March I i., 1975) in accordance with the contract.
This letter is to advise you that your employment with Roadway
Express, Inc., has been terminated and your name removed from the
seniority list in accordance with Article 41 Section 2lb) of the Southern
Conference Area Over the Road Supplemental Agreement,
717
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ally hazy recollection of events, he conveyed an overall im-
pression of truthfulness. Moreover, his reference to Mitch-
ell's statement about going over Patterson's head is entirely
consistent with Mitchell's subsequent action in calling Nel-
son, a call which Mitchell testified he subsequently made on
the same day he talked to Patterson.
Mitchell telephoned Nelson from Mitchell's office in the
presence of Union Business Agent Odie Loftin who listened
to the conversation on a conference telephone without Nel-
son's knowledge. According to Mitchell, when he asked
Nelson about coming back to work for Respondent on
January 9 Nelson replied that he did not think that it would
be wise in view of Mitchell's position, that Mitchell had lots
of friends and they would be asking for union advice about
different things. Mitchell replied that he would leave the
union business up to the business agent and the steward
and would just be a good employee, and reminded Nelson
that Mitchell had a "reasonably safe" driving record for
Respondent and had been in the top 20 percent of the wage
earners for Respondent. Nelson acknowledged that but
added that he still did not think it would be wise in view of
the position that Mitchell held and that it could create
problems for Mitchell and Respondent. Thereafter Mitchell
inquired if Nelson had any objections to Mitchell's working
for Respondent in Atlanta; Valdosta, Georgia: or Chatta-
nooga, Tennessee. Nelson indicated Respondent was hiring
in Valdosta and Atlanta and he did not have any objections
to Mitchell's applying at those locations, but Mitchell
would have to contact the people there. Moreover, Nelson
supplied Mitchell with some names to contact there.
Loftin, called as a witness by the General Counsel, sup-
ported Mitchell's testimony regarding his conversation with
Nelson. On cross-examination Loftin explained that his
presence in Mitchell's office during the conversation with
Nelson was due to their joint efforts to find employment
since Loftin had also lost his bid for reelection as a union
business agent. According to Loftin other telephone calls to
various employers seeking employment had been made
from his office with Mitchell present.
Nelson's version of the conversation with Mitchell dif-
fered significantly. He testified that he told Mitchell that
they could not consider Mitchell for employment because
he had been terminated and Respondent had a policy about
not re-employing terminated employees. Mitchell, accord-
ing to Nelson, claimed that he would not stir up any trouble
if employed and that he "wouldn't be involved in trying to
counsel drivers in union activities, or be filing a bunch of
grievances, or . . . making problems." Nelson testified he
replied, "I don't know about that, . . . I should imagine it
would be hard having been president of a Local not to be
involved, to not have people come to you, but, .... that had
nothing to do with it as far as I was concerned with re-
employment." "It was purely that it was company policy
not t do so."
Having considered the testimony of Mitchell, Loftin, and
Nelson. I am persuaded that Mitchell, as corroborated by
Loftin, must be credited. I was particularly impressed by
I Consistent with his testimony herein Mitchell filed a grievance against
Respondent on January 5 in which he alluded to the remarks he attributed to
Nelson. The grievance sought Mitchell's reinstatement to "the bottom of the
road board" at Respondent's Memphis terminal. The grievance was heard
by the Multi-State Gnevance Committee which in March decided against
Loftin's apparent sincerity in testifying. Nelson was less im-
pressive and displayed a rather self-serving recollection of
the conversation with an inability to recall further details. I
find it significant that he did not specifically deny Mitchell's
testimony about asking for employment at Respondent's
terminals other than Memphis. Had Nelson been relying on
the claimed policy basis for not reemploying Mitchell it
would have been highly unlikely that he would have dis-
cussed Mitchell's employment at other of Respondent's ter-
minals for Respondent's policy was universal in application
to all terminals.
Mitchell continued to seek employment by Respondent
in Dallas, Texas. Having heard from W. M. Gibson, a
Roadway driver, in mid-February that Respondent was hir-
ing at its Dallas terminal, he telephoned Loren Neal, Re-
spondent's relay terminal manager in Dallas, and expressed
his interest in employment. According to Mitchell, when he
talked to Neal on or about February 18, he suggested Neal
check with the Memphis office of Respondent to see if there
would be a problem, and he assured Neal that he would
give him no union problems. Neal told Mitchell he would
be taking applications on February 22 and that he would
see if there would be any problem. Because of a death in
the family Mitchell did not go to Dallas on February 22 but
did talk to Neal by phone on Monday, February 27, or the
preceding Friday. According to Mitchell, Neal told him
that he had talked to Patterson at the Memphis terminal
and then told Mitchell to "come on out." Mitchell then
proceeded to Dallas where he talked to Neal on or about
March I. At that time Neal advised him that Akron (appar-
ently Respondent's home office) was carrying Mitchell as
terminated and that while Mitchell could put in an applica-
tion it would just be a "waste of time." Neal was not called
to deny Mitchell's testimony in the foregoing respects.
After returning to Memphis on or about March 1, Mitch-
ell went to see Patterson and complained about being car-
ried by Respondent as terminated. He further complained
that he had only failed to return from a leave of absence
but that Respondent's carrying him as terminated pre-
vented him from getting a job anywhere. The result was
that he was going to lose his pension. Patterson asserted
that he did not want to see Mitchell lose a pension and
indicated that he would get in touch with Varble and see
what could be changed with respect to the termination. A
few days later, about March 6, Patterson phoned Mitchell
and told him that he had talked to Joe Varble and they had
changed his termination to "voluntarily quit" and read the
new language to him. Subsequently, Mitchell received a let-
ter from Patterson dated September 9, 1975, which ap-
peared to be a restatement of the original September 9 let-
ter designed to avoid the use of the word termination. Thus,
the last paragraph of the letter used the following language:
This letter is to advise you that your name has been
removed from the seniority list in accordance with Ar-
ticle 41 Section 2(b) of the Southern Conference Area
Over the Road Supplemental Agreement.
Mitchell on the basis, so far as this record shows, that Respondent could hire
whomever it wantei to. No party herein contends that the Committee's
decision was dispositive of the unfair labor practice issue in this case or that
the Board's holdings in Spielberg Manufacuring Company, 112 NLRB 1080
(1955), and Denver-Chicago Trucking Company, Inc., 132 NLRB 1416 (1961),
deferring to arbitration awards, are applicable to this case.
718
ROADWAY EXPRESS, INC.
Finally, Mitchell testified that he had conversations with
Patterson several times after he filed the charge herein and
on one occasion offered to work for Roadway, at "Chatta-
nooga, Atlanta, Dallas, or anywhere" they wanted him to
work, but Patterson replied that it was out of his hands.
C. Contentions and Conclusions
The General Counsel, through statements at the hearing,
appears to contend that Michell was not hired because of
his former position as president of the Union and his ac-
tions in connection with the performance of his duties in
that position. In addition to Mitchell's and Loftin's testi-
mony regarding Nelson's statements as to the refusal to
rehire Mitchell, the General Counsel, in establishing the
violation alleged, relies upon evidence that Mitchell, as
president of the Union, had been involved in grievance
matters involving Respondent's employees and on two oc-
casions threatened Respondent with strikes and on one oc-
casion had in fact called employees out on a strike. Thus,
Respondent's employee W. M. Gibson testified without
contradiction that within 90 days after he assumed office
Mitchell threatened Respondent with a strike over a dispute
concerning Respondent's failure to comply with a "commit-
tee" decision involving movement of trucks by hostlers. A
second threatened strike by Mitchell occurred in 1976 over
a dispute concerning a clear passage to a safety lane from
the driver's room. These matters were resolved without a
strike, however. A strike did occur, according to Gibson, in
January or February 1976, when Mitchell took the employ-
ees of Respondent out over a dispute concerning the dis-
charge of a driver. The strike lasted about 2 hours and
ended on the driver's reinstatement. Gibson also testified
that Mitchell was involved in the successful processing of
grievances against Respondent in 1975, 1976, and 1977.
As further evidence of Respondent's discrimination in re-
fusing to hire Mitchell, the General Counsel introduced rec-
ords from Respondent's personnel files attempting to show
that Respondent was discriminatorily applying its "policy"
against employing previously discharged employees, or em-
ployees having quit without 2 weeks' notice. These records
show that three employees9 were rehired even though their
previous employment history reflected that their written
resignations were submitted on the last day worked or
within a day or two of the last day worked. Presumably the
General Counsel would have me believe that the resigna-
tion notices did not meet the requirements of Respondent's
policy regarding 2-weeks' notice of a quit to insure eligibil-
ity for rehire. I find this evidence unconvincing in this re-
gard for Respondent made no contention that the 2-weeks'
notice required under its policy had to be in writing. Ac-
cordingly, and in the absence of evidence that the employ-
ees had not given a timely oral notice prior to their written
resignations, I do not find these records to substantiate a
deviation by Respondent from its policy.
Personnel records introduced in evidence by the General
Counsel on three employees' 0 show that they were allowed
to resign at one of Respondent's terminals for the purpose
of being hired at other of Respondent's terminals. These
'James Boothe, J. D. Atkins, and James Buckner.
0O James Cooper, Oscar Adaway, and G. D. Tedford.
records reflect that the employees resigned under special
circumstances to effectuate a transfer specifically agreed to
by Respondent's management. In my opinion, they may
not be equated to a "quitting" without notice and do not
establish a breach of Respondent's policy. I do not. there-
fobre, consider them as evidence of discrimination against
Mitchell.
The General Counsel submitted the personnel record of
only one employee" originally marked terminated by Re-
spondent (quit without notice), who had been rehired by
Respondent in apparent contradiction of its stated policy
against such a rehire. However, that rehire was effected in
February 1968, at a time before the "policy" had been ini-
tiated according to Patterson's uncontradicted and credited
testimony. Accordingly. I do not regard it as reflecting a
breach of the "policy" supporting a conclusion of discrimi-
nation against Mitchell.
The Respondent in its brief insisted that its refusal to
rehire Mitchell was solely due to the application of its pol-
icy against rehiring those employees who had been previ-
ously terminated." Mitchell was "terminated" for overstay-
ing his leave of absence. Respondent conceded that the
language of its policy speaks in terms of "discharge" rather
than termination, but argued that termination was tanta-
mount to discharge. Respondent also argued in its brief that
there was no evidence of animus on the part of Respondent
shown against Mitchell because of his position as union
president. In claiming an absence of evidence of animus
against Mitchell, Respondent cited the fact that in Novem-
ber 1975, it rehired Billy Joe Moffitt, a former business
agent of the Union, following the completion of his term of
office. Finally, Respondent characterized Mitchell's griev-
ance and strike activity with respect to Respondent's em-
ployees while union president as "nothing extraordinary"
and espoused the view that if "these were the most hostile
occurrences between Mitchell's administration and Road-
way in Memphis, it would appear that the relationship was
amicable indeed."
Considering all the foregoing, I concur in Respondent's
position as to the absence of evidence of unlawful "animus"
against Mitchell because of his past union activities vis-a-vis
Respondent's employees. Respondent's initial action in
"terminating" Mitchell occurred prior to the major portion
of such activities on Mitchell's part while president of the
Union. Hence, such activities would not appear to have
been a motivating factor in accomplishing the "termina-
tion" upon which the present refusal to rehire him is alleg-
edly based. That termination must be considered as legiti-
mate under the Act for litigation of the unlawful nature of
the "termination" is precluded by operation of Section
10(b) of the Act." In addition, there is no significant evi-
dence of a causal relationship between the refusal to rehire
Mitchell and his previous grievance processing and strike
activity.
" James Seymour.
1 Respondent made no contention that it had no positions available on
and after January 9. Moreover. Respondent through Counsel, stipulated at
the hearing that Mitchell was "qualified" for employment.
13 Sec. 10(b) of the Act provides in pertinent part "no complaint shall issue
based upon any unfair labor practice occurring more than 6 months prior to
the filing of the charge with the Board and the service of a copy thereof upon
the person against whom such charge is made...."
719
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The above does not preclude the existence of a violation
here, however. Contrary to Respondent's argument of a to-
tal absence of evidence of unlawful animus against Mitchell
the credited testimony of Mitchell and Loftin establishes
that Nelson was concerned, not about Mitchell's prior
union activities, but about what his future presence as an
employee might portend for Respondent by virtue of
Mitchell's past union leadership. Nelson feared Mitchell's
employment would create problems for Respondent. Nel-
son's statement thus reflects an unlawful concern over
Mitchell's employment and demonstrates the "animus"
which tends to establish the violation of the Act alleged in
the complaint. In view of Nelson's statement, the fact that
Respondent may have previously rehired a former union
business agent loses significance it might otherwise have
had.
According to Mitchell's uncontradicted and credited tes-
timony, Patterson advised Mitchell that he had no objec-
tion to reemploying Mitchell except for application of Re-
spondent's "policy" to Mitchell, and that waiver of the
policy was up to "higher-ups." Further, Respondent stipu-
lated that Mitchell was otherwise "qualified" for employ-
ment. Thus, absent application of the "policy," there was
no other lawful basis for not rehiring Mitchell shown in the
record. While Respondent could rely upon its policy in not
rehiring Mitchell, Nelson's statement establishes that Re-
spondent's reliance upon such policy was not total and that
Respondent had an unlawful concern in applying the policy
to Mitchell. It is well established that it is sufficient to find
a violation of the Act if a substantial or motivating ground
for the termination of an employee was for his union ac-
tivity notwithstanding that another valid cause for his dis-
charge may have existed. See United Aircraft Corporation v.
N.L.R.B., 440 F.2d 85 (2d Cir. 1971); S. A. Healy Company
and/or Tom M. Hess, Inc. v. N.L.R.B., 435 F.2d 314 (10th
Cir. 1970); N.L.R.B. v. Whitin Machine Works, 204 F.2d
883, 885 (Ist Cir. 1953); KBM Electronics, Inc., ti/a
Carsounds, 218 NLRB 1352 (1975). The mixed motive prin-
ciple applies to refusals to hire as well as terminations.
Moreover, the evidence warrants the conclusion which I
hereby make that Respondent was unwilling to reconsider
the application of its "policy" to Mitchell because of its
unlawful concern about the effect of his reemployment and
"union" problems it might create. An unbiased and lawful
reexamination of Mitchell's termination may well have re-
sulted in a conclusion that he was eligible for rehire. After
all, contrary to Repondent's asserted claim, article 41, sec-
tion 2(b) of Respondent union contract, previously recited
herein, does not require termination of employees who
overstay a leave of absence. It merely provides for a forfei-
ture of all seniority, and possibly eliminates an obligation to
rehire, but it does not preclude rehire. Furthermore, Mitch-
ell wa, never advised prior to his "termination" that failure
to return to work at the end of his leave of absence would
result in such termination in the absence of a resignation.
Nor was he ever told of Respondent's policy that an em-
ployee who quit without 2-weeks' notice would be treated
as "discharged" or "terminated" so as to make such em-
ployee ineligible for reemployment. Certainly, Respondent
recognized the inequity and basic unfairness of the applica-
tion of its policy to Mitchell's situation when in March Pat-
terson revised his original September 9, 1975, letter to
Mitchell to eliminate reference to his "termination" so that
Mitchell might more easily obtain employment elsewhere.
In view of the foregoing, I conclude that Respondent's
refusal to hire Mitchell on and after January 9, when he
became available for employment was based, at least in
part, upon Respondent's unlawful concern over hiring a
past union president. It follows, and I find, that Respon-
dent's refusal to reemploy Mitchell constituted a violation
of Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
I. Respondent Roadway Express, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union, Highway and Local Motor Freight Local
667, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of the Act.
3. By refusing to employ John Mitchell because of his
former position as President of the Union, Respondent has
engaged, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has committed violations
of Section 8(a)(3) and (1) of the Act, I shall recommend that
it be required to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies
of the Act.
Since I have found that Respondent discriminatorily re-
fused to employ John Mitchell it will be recommended that
Respondent be ordered to employ Mitchell at its Memphis
terminal, where he initially sought employment, to the posi-
tion in which he sought employment and for which he was
qualified granting him the same seniority and other rights
and privileges he would have enjoyed absent the discrimi-
nation against him together with backpay.'4 The backpay
shall be computed in accordance with the formula ap-
proved in F. W. Woolworth Company, 90 NLRB 289 (1950),
with interest computed in the manner and amount pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977).1
Inasmuch as the violations found here strike at the heart
of employee rights, I shall recommend that Respondent be
14 The record does not clearly reflect any job openings at Respondent's
Memphis facility after Mitchell applied. However, the presence of absence of
a job opening is essentially a matter for compliance where the evidence, as
here, establishes a discriminatory refusal to consider an applicant for em-
ployment. See e.g., Goodwater Nursing Home., Inc., 222 NLRB 149 (1976);
G. C Lingerie Corporation of Alabama, 146 NLRB 690 (1964).
u5 See generally, Isis Plumbing & Heating Co., 138 NLRB 716, 717-721
(1962). In another decision issued by me on this date I found that Mitchell
was unlawfully discriminated against by another employer during essentially
the same period of Respondent's discrimination herein. See Consolidated
Freightways Corporation of Delaware, 242 NLRB 770. Accordingly, this rec-
ommended Order is to be construed as requinng mutual and several liability
by Respondent for backpay wherever it appears during the compliance stage
orf this proceeding that the actual periods of discrimination coincide.
720
ROADWAY EXPRESS, INC.
ordered to cease and desist from infringing in any manner
on the rights guaranteed in Section 7 of the Act. N.L.R.B. v.
Entwistle Manufacturing Company, 120 F.2d 532, 536 (4th
Cir. 1941).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER' 6
The Respondent, Roadway Express, Inc., Memphis, Ten-
nessee, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Highway and Local
Motor Freight, Local 667, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization by
discriminatorily refusing to employ employee applicants, or
in any other manner discriminating against them with re-
gard to their hire and tenure of employment or any term or
condition of employment.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer John Mitchell immediate employment in such
position as he would have been hired absent the discrimina-
tion against him with the same seniority and other rights
and privileges he would have enjoyed and make him whole
for his loss of earnings in the manner set forth in "The
Remedy" section of this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at its Memphis, Tennessee, facility copies of the
attached notice marked "Appendix."' Copies of said no-
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
'" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
tice, on forms provided by the Regional Director for Re-
gion 26, after being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by anN
other material.
(d) Notify the Regional Director for Region 26, in writ-
ing, within 20 days from the date of receipt of this Order.
what steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF HE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportunity to
present evidence, the National Labor Relations Board has
found that we violated the National Labor Relations Act
and has ordered us to post this notice and to carry out its
provisions.
WE WILL NOT discourage membership in Highway
and Local Motor Freight, Local 667, affiliated with
International Brotherhood of Teamsters. Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization. by discriminatorily refusing to em-
ploy or re-employ any person, or in any other manner
discriminating against them with regard to their hire
and tenure of employment or any term or condition of
employment.
WE WILL NOT in any other manner interfere with.
restrain, or coerce employees in the exercise of rights
guaranteed them by Section 7 of the National Labor
Relations Act.
WE WILL offer John Mitchell immediate and full re-
instatement to his former job or. if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed, and make him whole for any
loss of earnings he may have suffered by reason of the
discrimination against him by paying him a sum equal
to what he would have earned, less any net interim
earnings, plus interest.
ROADWAY EXPRESS, INC.
721