Superior Forwarding Co.

National Labor Relations Board - Board Decisions

Jun 4, 1979

242 N.L.R.B. 761 (N.L.R.B. 1979)

SUPERIOR FORWARDING COMPANY
Superior Forwarding Company and John Mitchell.
Case 26-CA-7150
June 4, 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, the General Counsel filed
exceptions and a supporting brief, and Respondent
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 complaint be, and it hereby is, dismissed
in its entirety.
I The General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant eivdence 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 CASE
[LUTTON S. BRANDON, Administrative Law Judge: This
case as tried at Memphis, Tennessee, on September 12-
13, 1978. The charge was filed by John Mitchell (herein
called Mitchell), on April 13, 1978,' and the complaint al-
leging violations of Section 8(aX3) and (1) of the National
Labor Relations Act, as amended (herein called the Act),
by Superior Forwarding Company (herein called Respon-
dent). issued on May 18. The sole issue presented by the
case is whether Respondent violated Section 8(a)(3) and (1)
of the Act by failing or refusing to hire Mitchell since on or
about January 16.'
I All dates are in 1978 unless otherwise stated.
2 This case was originally consolidated with two other cases involving two
additional respondents, Consolidated Freightways Corporation of Deleware,
Case 26-CA-7148, and Roadway Express, Inc., Case 26-CA-7147. The mo-
tions of all three respondents to sever their respective cases was granted at
the hearing.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
briefs filed by the General Counsel' and Respondent, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a corporation with an office and place of
business located in Memphis, Tennessee, where it is en-
gaged in the transportation of freight. During the 12-month
period preceding issuance of the complaint, 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. The complaint alleges, Respondent admits, and I
find, that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, and Respondent's answer admits,
that Highway and Local Motor Freight, Local 667, affili-
ated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein
called the Union, is a labor organization within the mean-
ing of Section 2(5) of the Act. I so find.
111. THE ALLEGED UNFAIR LABOR PRACTICE
A. The General Counsel's Evidence and Argument
Mitchell was employed full time as president and busi-
ness manager of the Union from 1975 until early January
1978, when his term of office expired following his unsuc-
cessful bid for reelection to the position in mid-December
1977. Mitchell testified that during the last week of Decem-
ber or the first week of January he talked to Respondent's
Memphis terminal manager, Joe Luker, by telephone and
mentioned the fact that Mitchell was going to be looking
for employment. Luker replied, according to Mitchell's un-
contradicted testimony in this regard, "well why don't you
come on up here and put in an application, John, and
maybe we can help you." Mitchell told Luker he would do
so. Thereafter, about January 15 or 16, Mitchell went to
Luker's office where he talked to Luker and obtained an
application form. The two discussed employment, Luker
explained to Mitchell that employment would be casual' in
the beginning, and Mitchell assured Luker he was aware of
that and was familiar with the "casual clause" of the collec-
tive-bargaining agreement between Respondent and the
Union.' Luker told Mitchell, still according to Mitchell,
3 The General Counsel's unopposed motion to correct the transcript, dated
October 24, is granted and received in evidence as G.C. Exh. 9.
4 Respondent employed "casual" employees who worked part time or on
an as-needed basis. The practice was to hire its regular and full-time employ-
ees from those working as "casuals," and Respondent employed over-the-
road drivers from its regular city drivers.
5 Respondent recognized the Union as coUective-bargaining representative
of its employee and was party to the National Master Freight agreement
with its supplements, effective April 1, 1976, through March 31, 1979.
242 NLRB No. 117
761
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he thought he could help Mitchell. but that he would
want to check out Mitchell's application and "clear" it with
St. Louis (a reference to Respondent's home office).
Mitchell took the blank application and completed it, in-
dicating his desire fr work as a "city-driver " 6 or "dock
worker,"7 and returned the application to Respondent's of-
fice about January 16, leaving it with Luker's secretary.
Mitchell testified that after a few days, since he had not
been called to work by Respondent, he phoned Luker who
told Mitchell that he would have to have a physical exami-
nation and referred him to a named doctor. Luker added,
however, that things were slow this time of year, that freight
was slow, and that it did not look like there would be any-
thing for a while. Mitchell responded that he would get a
physical and be prepared when Luker did call him.
On January 27 Mitchell took a physical examination
which was administered by a physician other than the one
Luker had referred him to.8 In addition, Mitchell took it
Department of Transportation test administered by another
employer, Piper Industries, Inc.. on February 2, and re-
ceived a certification which would qualify him to drive for
Respondent when called to work. Subsequent to completing
the physical and receiving the necessary certification re-
ferred to above, Mitchell testified that he telephoned Billy
J. Dickerson, Respondent's operations manager. Mitchell
placed the call as being made about the first week of Febru-
ary, and he testified that Dickerson told him that Mitchell
had not been "cleared" yet.9 Mitchell then testified that he
called Dickerson 2 days later and about three more times in
the following 3 weeks but was told by Dickerson each time
that he "didn't have anything," i.e., any work.
Mitchell related that he had no further contacts with Re-
spondent, and on April 13 he filed the charge herein. On
May 16 he wrote to Luker the following letter:10
This is to inform you that I am still seeking employ-
ment as a casual city driver or dock worker for your
Company, as I have been since the date of application
that is on file at your Terminal. I have on hand an up-
to-date physical card, a Department of Transportation
Test, both written and driving, and a valid Tennessee
Special Chauffeur's license.
I am available at all times as I have been since the date
of application.
On May 26 Luker replied by letter as follows:
This is to thank you for your letter of May 16 inform-
ing us, for the first time, that you are interested in
employment here as a casual city driver or dock
worker. As you know, I had assumed that you were
6 Mitchell's previous trucking experience had been as an over-the-road
driver with Roadway Express, Inc., in Memphis from 1966 until 1975.
7 Respondent had no "dock worker" classification but did employ "check-
ers" who performed the same functions.
S It was not uncommon for Respondent to accept the results of physical
examinations administered by doctors other than the doctor Respondent
customarily referred applicants to.
9 Mitchell, on cross-examination, contradicted himself and said that his
last phone conversation with Luker occurred after he was told by Dickerson
that he had not been cleared. It was in that phone call with Luker, the same
day as the call to Dickerson. that Luker told Mitchell he would have to have
a physical examination.
'° The letter was one of several that Mitchell sent to various employers
where he had applied for work, reminding them of his availability.
not interested in such employment since you did not
follow up with either myself or Billy Dickerson on my
request to you on January 16 that you check back with
either me or Billy about such employment following
your filing of an application with me on January 16.
As I told you then and as you knew when you asked
that I take your application as a "favor" to you, it is
necessary that applicants for casual employment keep
checking back with us on availability of work because
of the large numbers of such applicants. Now that you
have by letter of' May 16. advised that you are inter-
ested in casual employment, not having heard from
you previously since January 16, you can be sure that I
will give you consideration for the next casual opening
available here. I expect such an opening in the position
of casual city driver or checker on or about June 2,
1978, and you can report to Billy Dickerson at that
time so that we can determine whether you can fill the
position available.
Mitchell responded to Luker's letter by letter dated June
1, in which he disputed Luker's assertion that Mitchell's
letter of May 16 was his first indication of interest in em-
ployment as a city driver. Moreover, Mitchell, in his letter,
claimed that his "records"" indicated that he had talked to
Luker "no less than four times and Billy Dickerson no less
than five times" regarding employment. Mitchell further
claimed in his letter that he had also told Luker and Dick-
erson that he had had a current physical dated January
27.12 Mitchell's letter stated that he would report to Respon-
dent's terminal at 8 a.m., June 2. When he did report on
June 2 Mitchell supplied Luker's secretary with the results
of his January 27 physical examination and the certification
from the Department of Transportation test which were
then photostated by the secretary. Mitchell was told to
come to work the next day. However, he advised Respon-
dent that he had to take a physical for another employer,
McLean Trucking Company, the next day and would be
unable to work.? When Dickerson again contacted Mitch-
ell to come to work on other days on a day-to-day basis
Mitchell declined the casual employment, and on June 9 or
10 he began working as a regular employee for McLean.
Respondent and General Counsel stipulated that be-
tween January 16 and June 2 when Mitchell was offered
employment, Respondent employed or offered casual em-
ployment to one checker and seven city drivers. The
checker, J. A. Busby, had filed an application on January
31 and had been hired on February 2. He worked an aver-
age of 2 nights each week. The city drivers, with the excep-
tion of two (0. C. Looney and C. D. Miller), had applied
for casual employment subsequent to Mitchell. The first
H1 Such "records" were not offered in the General Counsel's case-in-chief
and were rejected upon objection when offered on rebuttal. In any event,
based on the General Counsel's offer of a proof, such "records" were not
contemporaneous recordings or notes of conversations but were self-serving
recollections noted on May 8, more than 2 months after the conversations
had allegedly occurred.
1 Contrary to this claim, there appears to be no testimonial evidence in
the record establishing that Mitchell had ever told either Luker or Dickerson
that he had had a valid physical examination.
i This testimony was patently erroneous, for uncontroverted documentary
evidence in the record established that Mitchell had undergone the McLean
physical examination 3 days previously on May 31. Certification of that
physical was given to Respondent by Mitchell on June 2 (G.C. Exh. 6).
762
SUPERIOR FORWARDING COMPANY
city driver offered employment subsequent to Mitchell's ap-
plication, A. L. Turner, was hired on March 10. The re-
maining city drivers, with the exception of C. D. Miller who
was hired on May 25, were hired or offered employment on
various dates between March 10 and the end of March. One
such driver who was offered employment declined it. one
had only I day of total employment, one had only 3 days,
while the remaining drivers appeared to have worked from
I to 3 days weekly.
It is the General Counsel's position that Respondent re-
fused to hire Mitchell because of his prior union activity.,
i.e., his former position as president of the Union, and his
activity as president of the Union in relation to some dis-
pute he handled with Respondent. In regard to the latter.
Mitchell testified rather vaguely about "a couple of real bad
rhubarbs" he had had with a "Mr. Altedona," apparently
an official of Respondent in St. Louis. in the 3 or 4 months
prior to Mitchell's application with Respondent. The nature
of the "rhubarb" was not clearly identified on the record.
On the other hand, the relationship between Respondent
and Mitchell as union president appeared to have been
amicable. In fact, Respondent had been successful in get-
ting some concessions from Mitchell, relieving Respondent
of some hiring hall restraints. Further, Respondent had pre-
viously favored Mitchell by offering Mitchell's son employ-
ment, and subsequently Mitchell had returned the "favor"
by agreeing to Respondent's termination of his son's "leave
of absence" when it presented problems to Respondent
with other employees for reasons which need not be fully
explicated here.
However, the General Counsel, in arguing the violation
here, does not rely entirely on the existence of any, overt
"animosity" between Mitchell and Respondent as a result
of any actions on Mitchell's part vis-a-vis Respondent while
Mitchell was president. The General Counsel points to the
shifting and unsubstantiated reasons cited by Respondent
at the hearing through Luker, called as an adverse witness
by the General Counsel, as outlined below, as warranting a
finding that the cited reasons were pretextual. Since the
stated reasons must be found to be false, the General Coun-
sel contends, an inference is warranted that Respondent
sought to conceal its motive, and, further, that that motive
was unlawful. Olson Bodies, Inc., a subsidiary of Grumman
Allied Industries, Inc., 181 NLRB 1063 (1970).
B The Respondent's Evidence and Argument
Luker, initially called as an adverse witness by the Gen-
eral Counsel under Section 611(c) of the Federal Rules of
Civil Procedure, testified consistently with Mitchell's testi-
mony that he had invited Mitchell to apply for employment
at Respondent. Luker testified that when Mitchell did come
out for an application he told Mitchell to fill it out and
bring it back, but he further told Mitchell that there were
no openings, that weather was severe and there were regu-
lar people on layoff, that Mitchell's application would be
considered, and that Mitchell should check back around
March or April. Luker did not see Mitchell when Mitchell
returned the completed application around January 17 or
18, according to Luker. However. Luker conceded that
Mitchell had phoned him a few days later, at which time
Luker simply acknowledged receipt of Mitchell's applica-
tion. Luker claimed that he had no further contact with
Mitchell until Mitchell's letter of May 16.
Luker denied that he ever gave Mitchell any indication as
to specifically when he would be hired. Further, he testified
that no employment authorization form was ever com-
pleted or forwarded to the St. Louis office so that Mitchell's
name could be added to the payroll. According to Luker,
under Respondent's hiring procedures the St. Louis office
did not pass on or approve hiring. Hiring was a local func-
tion, and the employment authorization forms were merely
for the purpose of adding the employee to the payroll lists
for payment purposes." "Casuals" were "hired" on some
occasions, and their employment authorization forms were
completed along with other necessary papers including
physical examination certifications, even though they were
not immediately utilized by Respondent.
While Luker testified that he advised Dickerson, the man
responsible for Respondent's hiring. that Mitchell was seek-
ing employment. he did nothing more with Mitchell's appli-
cation than put it in a pending application file containing
some 150 to 200 other applications. Even though Luker had
stated in an affidavit supplied to the Regional Office of the
Board during investigation of the case that there was no
particular reason Mitchell was not hired earlier than lack of
interest on Mitchell's part, he proceeded to supply specific
reasons for not employing Mitchell at the hearing. Thus. he
claimed that Respondent did not feel Mitchell had experi-
ence and qualifications for a city driver, that Respondent
had not heard further from Mitchell regarding his desire for
employment for an extended period after he had submitted
his application, that Respondent had to consider maintain-
ing a balance of minorities"5 in hiring, and that Respondent
had to consider those referred to it by the Union.
Examination of each of these "reasons" reflects, as the
General Counsel contends, that they are ill founded. As for
qualifications. Mitchell's experience as a road driver estab-
lishes his ability to drive a truck, and his Memphis residen-
cy would have given him sufficient familiarity with local
streets to enable him to make city deliveries without undue
difficulty. That Mitchell's qualifications were not of great
concern to Respondent was shown by Respondent's failure
to note the driving experience set forth in Mitchell's appli-
cation and also by Respondent's failure to inquire of Mitch-
ell regarding his experience. particularly that relative to
dockwork. Moreover. Respondent did not show that those
persons it did hire were more qualified than Mitchell.
Respondent's contention that Mitchell made no further
inquiries regarding employment after he submitted his ap-
plication is, of course, disputed by Mitchell. Luker's reli-
ance upon Respondent's concern in hiring minorities as a
reason for not hiring Mitchell is clearly refuted by the fact
that only one of the eight employees hired between JanuarN
16 and June 2 was a "minority." That individual. Miller.
was not hired until May 25. Finally. Luker's contention
that Respondent was required to give due "consideration"
i4 Luker claimed that no employee could be hired without the certification
of a medical examination. He denied that he eer told Mitchell to get a
physical. Mitchell did not submit such a certification to Respondent until
June.
'' Mitchell, it must e obsered. does not fall init the categor of a "mi-
norit."
763
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to those referred by the Union provides no valid basis for
not hiring Mitchell, for Respondent was not required to
give preference to those specifically referred by the Union.
Moreover, according to a stipulation of the parties, only
four of the eight employees hired during the critical period
here were specifically referred to Respondent by the Union.
Accordingly, I find, in agreement with the General Coun-
sel's argument, that the reasons advanced by Luker at the
hearing were so ill founded and unsubstantiated as to be
patently false.
Indeed, the testimony of Dickerson, who was primarily
responsible for hiring, shows no reliance on the "reasons"
given by Luker. Dickerson conceded that Luker had ad-
vised him that Mitchell was seeking employment although
he was not aware that Mitchell had filed an application
until May, but he denied that Mitchell had ever called him
regarding employment. Dickerson testified that he assumed
Mitchell was not greatly interested in employment. Dicker-
son explained that casuals are not considered or hired in
order of their dates of application, and that hiring was
sometimes a matter of luck for an individual, i.e., being
present and seeking employment when Respondent's need
for a casual employee arose. Moreover, frequent inquiry by
an applicant, according to Dickerson, served to keep the
applicant in Respondent's mind and reflected the appli-
cant's interest. In explanation of hiring Busby, the first ap-
plicant hired after Mitchell applied, Dickerson testified that
he had made a commitment to Busby's father about 6
months earlier to hire Busby "somewhere down the road."
Dickerson further explained that the selections for hiring
those individuals hired after Busby were based either upon
the persistent efforts of the applicant or the good recom-
mendations of the applicant by union representatives, Re-
spondent's own employees, or third parties. Finally, Dicker-
son denied that Mitchell's status as a former union
president had anything to do with his failure to be offered
employment earlier than he was.
Summarizing Respondent's brief, it is Respondent's argu-
ment that Mitchell did not pursue his employment with
Respondent sufficiently to warrant his hiring over other ap-
plicants, and that his offer of employment was delayed to
some extent by business conditions and by prior commit-
ments to other applicants. Furthermore, Respondent con-
tended that the record is void of evidence that established
that any refusal to hire Mitchell was based on his union
affiliation. Respondent pointed out in this regard that most
of those employees hired before Mitchell was offered em-
ployment were likewise affiliated with the Union. Respon-
dent contended that the absence of any discriminatory mo-
tivation in failing to offer Mitchell earlier employment was
demonstrated by the fact that Respondent solicited Mitch-
ell's application to begin with.
C. Conclusion
Approaching first the factual issue of whether Mitchell
made a number of telephone calls to Luker and Dickerson
regarding work, I conclude that Mitchell did make some of
the calls he testified about. However, his testimony was too
vague as to dates and the exact number of times he called to
be totally reliable. Further, his tendency to exaggerate was
reflected by his June I letter to Luker, in which he claimed
that he had talked to Luker no less than four times and
Dickerson no less than five times regarding employment, a
claim that he did not substantiate in his testimony. The
accuracy of Mitchell's testimony on the sequence of the
calls to Luker and Dickerson is also made questionable by
Mitchell's contradiction, on cross-examination, of his testi-
mony on direct that he had no more contact with Luker
until May following his first phone call to Dickerson. This
contradiction also appears to conflict with Mitchell's pre-
hearing statement to the Board which likewise had indi-
cated that the first contact with Dickerson was after the last
contact with Luker.
Dickerson's testimony, on the other hand, also revealed
some contradictions. At one point in his testimony Dicker-
son indicated that he was aware in February that Mitchell
had applied for work, but at another point he denied that
he knew that Mitchell had applied until May. Further, at
points in his testimony Dickerson suggested that he had
considered Mitchell's qualifications when he had hired oth-
ers. But in a prehearing statement to the Board investigator,
Dickerson related that he knew of no reason why Mitchell
had not been put on the "casual" employee list.
Luker's reliance upon a number of unsubstantiated and
obviously erroneous reasons for not hiring Mitchell has al-
ready been set forth above and precludes reliance upon his
veracity. Under these circumstances, none of the witnesses
were impressive, and the testimony of none of the three is
acceptable as fully accurate. The truth probably lies some-
where in between all the testimonies. On balance, however,
I believe Mitchell's testimony that he called Dickerson at
least two or three times. After all, Mitchell was looking for
a job, even casual employment, and he had taken the trou-
ble to apply. Moreover, he had been told to check back,
and it would not have been unlikely for him to do so even
though the sporadic and temporary nature of the work
would not have tended to stimulate vigorous or aggressive
interest.
However, even Mitchell's testimony does not establish
that he called Dickerson at the times job openings existed.
The record does not clearly establish that Mitchell ever ad-
vised either Luker or Dickerson that he had completed a
physical examination prior to the time Busby was employed
in early February. No other new employees were hired dur-
ing the remaining part of February, the period when Mitch-
ell's testimony has it that he was making his calls to Dicker-
son and Dickerson was truthfully telling him that there
were no openings. There were openings later in March, but
by that time Mitchell had forsaken his calls. Under these
circumstances, a conclusion by Respondent that Mitchell
was not then interested was not wholly unwarranted. Re-
sort to hiring those actively seeking work during that month
shows no more discrimination against Mitchell than it does
against the 150 to 200 other applicants in Respondent's ap-
plication file at the time.
The absence of unlawful discrimination against Mitchell
is also indicated by the complete absence of evidence of
union animus which would tend to establish improper mo-
tivation. In every case the General Counsel, in establishing
a violation of the Act, must prove by a preponderance of
evidence that Respondent knew, or at least believed, that
764
SUPERIOR FORWARDING COMPANY
the alleged discriminatee was engaged in union activities
and that Respondent harbored antiunion motivation."' In
the instant case, Respondent's knowledge of Mitchell's
union activity is clear and undenied. The issue of Respon-
dent antiunion motivation is less clear. The General Coun-
sel would have me infer such motivation from the false rea-
sons advanced for not hiring Mitchell. As the General
Counsel contends, Board law is well established that anti-
union motivation may be inferred from a finding that the
asserted reasons for either a discharge or a refusal to hire
are false.' 5 However, such an inference is not compelled and
is justified only where it may reasonably be concluded that
the motive sought to be concealed by the asserted false rea-
sons is unlawful. As the U.S. Court of Appeals for the
Ninth Circuit stated in considering the principle in Shattuck
Denn Mining Corporation (Iron King Branch) v. N.L.R.B.,
362 F.2d 466, 470 (9th Cir. 1966):
If he [the trier of fact] finds that the stated motive for a
discharge is false, he certainly can infer that there is
another motive. More than that, he can infer that the
motive is one that the employer desires to conceal-an
unlawful motive-at least where, as in the case, the sur-
rounding facts tend to reinforce that inference. [Empha-
sis supplied].
Similarly, in Terry Industries of Virginia, Inc., 164 NLRB
872 (1967), the trial examiner, affirmed by the Board in
finding a violation of the Act in that case, cited the Shat-
tuck Denn Mining case and stated:
The ultimate question is what was the reason for the
discharge and the present [sic] or absence of other anti-
union actions is an aid to answering the question, not
an answer in itself. On this record, the General Coun-
sel must make his case, if he can, without substantial
aid of that nature. But I am satisfied that he has made
it. I find that the reason given for the discharge was a
false one, and I infer front that fact andfrom the other
surrounding circumstances previously detailed, that the
false reason was given and pressed in an effort to con-
ceal an illegal reason-Orndorffs union activity. [Em-
phasis supplied].
Considering the other "surrounding circumstances" of
the instant case, I am not persuaded that Respondent's rea-
sons stated at the hearing for refusing to hire Mitchell, al-
though unsubstantiated and false. were designed to conceal
an unlawful motive as opposed to innocuous confusion.
Thus, the record reveals not only a general absence of evi-
dence of antiunion motivation, but, on the contrary. reveals
a good relationship between Respondent and Mitchell as
president of the Union. Mitchell conceded in his testimony
that the relationship was good. He had been instrumental in
assisting Respondent in satisfactorily resolving some labor
relations problems in the past. Although there was testi-
mony by Mitchell that he had had a "rhubarb" with Re-
spondent with respect to one grievance matter, neither the
timing of the grievance nor the details of the "rhubarb" are
r See Glas Guard Induviries, Inc. a Dision of Guardian Industrier, 218
NLRB 176 (1975).
" Borin Packing Co., Inc, 208 NLRB 280 1974).
" See. e.g.. Olon Bodies, Inc., rupra.
sufficiently laid out on the record to detract from Mitchell's
overall evaluation of his relations with Respondent as "not
bad."
The absence of a discriminatory motive is also reflected
by the undisputed fact that Luker solicited Mitchell to ap-
ply for employment. Had Luker been disposed to reject
Mitchell because of his former position as president of the
Union it is extremely unlikely that Luker would have put
Respondent in a position to discriminatorily refuse to em-
ploy Mitchell by actively soliciting his application. There
was no showing that there was anything to be gained by
Respondent at the time of such solicitation.
I do not find that the record establishes that Respondent
ever committed itself to hire Mitchell. The only credited
words specifically attributed by Mitchell to Luker were
words to the effect that 'maybe" Luker could help Mitchell
if he applied. Absent such a commitment and given the fact
that in excess of 100 other applicants were also passed over
by Respondent without express cause or full consideration
in a loosely administered hiring process, I am not per-
suaded that the preponderance of evidence establishes that
Mitchell was the victim of discrimination considered un-
lawful under the Act. Under these "other surrounding cir-
cumstances" I do not find that an inference of unlawful
motivation is warranted, in spite of the erroneous and obvi-
ously false reasons for not hiring Mitchell advanced by
Luker at the hearing. Rather. based on the record consid-
ered as a whole and because I am not totally convinced by
Mitchell's vague testimony that he made all the calls to
Dickerson he claimed to have made. and notwithstanding
the obviously false reasons for not hiring Mitchell advanced
by Luker, I believe, consistent with one of the reasons ad-
vanced by Respondent, that Mitchell was not offered em-
ployment because he had not shown an aggressive and vig-
orous interest in casual employment prior to the time that
he filed the charge herein. I shall therefore recommend that
the complaint be dismissed in its entirety.
CONC(I.USIONS OF LAWV
I. Respondent is an employer 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. Respondent has not committed unfair labor practices
within the meaning of Section 8(a)(3) and (I) of the Act by
failing or refusing to hire John Mitchell from January 16,
1978, until June 2, 1978.
4. Respondent has engaged in no unfair labor practices
violative of the Act.
Upon the basis of the foregoing findings of fact. conclu-
sions of law. and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.
17 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulatic:ls 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.
765