J. R. Sousa & Sons, Inc.

National Labor Relations Board - Board DecisionsMay 28, 1974

210 N.L.R.B. 982 (N.L.R.B. 1974)

982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. R. Sousa & Sons, Inc. and Teamsters, Chauffeurs, Warehousemen & Helpers Union Local No. 437, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 1-CA-9262 May 28, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On January 31, 1974, Administrative Law Judge Samuel M. Singer issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and General Counsel filed the same brief that he submitted to the Administrative Law Judge. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent,`J. R. Sousa & Sons, Inc., Haverhill, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board 's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION SAMUEL M. SINGER , Administrative Law Judge: This case was heard before me in Boston, Massachusetts, on December 4, pursuant to charges filed on August 9 and a i Unless otherwise indicated, all dates herein are 1973 2 Transcript corrected by my order on notice dated January 10, 1974 3 Vince R Grazio, Frank E. Sweetser, Stephen P . Clifford, Mark Bird, Michael Gallagher, Bernard M Meader, and Ronald G Buccim Respon- dent's claim (br. pp. 4-5, 24) that Liberty then employed 12 gas station attendants, is not supported by the record; Milhendler, treasurer and half owner of Liberty, a credible witness, testified from Liberty records that Liberty employed only the named seven attendants at the time of the sale, complaint and amendment thereto issued on October 5 and 30, 1973.1 The issue litigated was whether Respondent, as successor to Liberty Oil of Haverhill, Inc. ("Liberty"), violated Section 8(a)(l), (3), and (5) of the National Labor Relations Act by refusing to retain or hire Liberty's employees because they were Union adherents covered by a subsisting collective agreement between Liberty and Charging Party; and by refusing to recognize and deal with the Charging Party as the statutory representative of its employees in an appropriate bargaining unit. All parties appeared and were afforded full opportunity to be heard, to examine and cross examine witnesses, and to introduce evidence. Briefs were filed by General Counsel and Respondent. Upon the entire record2 and my observation of the testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF RESPONDENT; LABOR ORGANIZATION INVOLVED Respondent ("Sousa") since August 1 has engaged in the retail sale and distribution of gasoline, petroleum, and related products at 236 South Elm Street, Haverhill, Massachusetts, the facility theretofore operated by Liberty. Respondent admits that its annual gross sales exceed $500,000 and that its annual purchases in interstate commerce (from points outside Massachusetts) exceed $50,000. I find that at all material times it has been an employer engaged in commerce within the meaning of the Act, and that assertion of jurisdiction here is appropriate and proper. Charging Party (the "Union") is a labor organization within the meaning of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Facts 1. Sousa's acquisition of Liberty's Haverhill gas station; its refusal to retain the unionized Liberty employees Until July 31, Liberty operated a retail gas station at South Elm Street in Haverhill, Massachusetts, and distrib- uted fuel and heating oil to homes and commercial outlets. On that date, Liberty had in its employ seven gasoline station attendants 3 and three fuel drivers `1-each category covered by collective agreements with the Union, expiring on December 31, 1973. It was stipulated at the trial that Respondent Sousa on July 31 purchased the Haverhill facility with all Liberty equipment except its trailer trucks; that Sousa has since August 1, engaged in the same operations formerly engaged in by Liberty; that it has sold and distributed the same basic products to substantially indicating that an eighth employee (Canfio) had "worked lust spotty once in a while" and "wasn't a regular employee " 4 John Minihan , Martin D. Flint, and Lows A. Boucher A part-time driver (Carl Noyes) "on call" by Liberty, was not working at the time. Employed full time elsewhere , he worked for Liberty only when needed- -several nights a week in the busy winter season (and sometimes in summers to fill in for vacationing employees). 210 NLRB No. 157 J.R. SOUSA & SONS 983 the same customers ; and that Sousa "has continued the employing industry" by virtue of the described circum- stances. Sousa admittedly retained no Liberty employee- -gasoline station attendant or driver. Liberty official Milhendler testified credibly that during his negotiations with Sousa's representatives5 (late June or July) he supplied Sousa General Manager Coan with copies of Liberty's collective agreements with the Union and that Sousa was "supposed to study [them] and then let [him] know what they would do with the [Liberty] employees." Although "anxious to know" Sousa's decision because he wanted to give his employees ample notice if not retained by Sousa, Milhendler "couldn't get [the] answer" until "the very end, down to the last day or two" (July 30 or 31), dust before the sale was consummated, when Sousa notified him that it was "going to bring in their own people." Sousa gave no reason for its refusal to keep any of the Liberty employees-gas station attendants or drivers. 2. Liberty's termination of its employees Milhendler indicated that even after Sousa notified him that it would bring in its own crew, he still entertained the hope that Sousa might take over his employees, telling them that if Sousa "didn't hire any of them by Friday [August 3] that [he] . . . would give them the money instead [of] notice [he would otherwise have given them] according to their length of service." Since, as it turned out, none was retained, Milhendler gave each employee "severance" pay-around I to 4 weeks' wages. Three station attendants (Grazio, Gallagher, and Bird) were later given part-time employment at a nearby gasoline station owned by Milhendler. 3. Liberty employees ' applications for employment at Sousa a. Station attendants The record shows that five of Liberty's seven station attendants terminated on July 31 filed written employment applications6 at the Haverhill facility when it was taken over by Sousa, each listing Liberty as his former employer. Grazio testified credibly that on August 1, when he and Clifford went to the station and asked Sousa's gasoline station manager, "Tracy" Maliszewski, for fobs, the latter said that the application forms were at a nearby Sousa station and that they could return for them later in the week. However, at the same time Mahszewski asked the 5 Charles Coan, general manager for Respondent's New England operations, and Joseph Sousa, its president Coan testified that Sousa is engaged in wholesale as well as retail sale of gasoline fuel and related products, and that it distributes these through some 200 gasoline stations, of which 80 are Sousa-owned 6 Grazio, Sweetser, Clifford, Bird, and Gallagher, the applications were signed on August 3 It is undisputed that Service Station Manager Mahszewski had full authority to hire applicants While Sousa General Manager Coan testified that the applications are normally forwarded to the Company's credit manager at its main office in Danvers for a "credit character check," he also testified that it was "up to Tracy [Mahszewski p" to hire the applicant if he "checks out all right " 8 As indicated, the findings as to the interviews are based on credited men whether they were "still in the Union ." When the employees said "yes," James Sousa (Respondent 's sales representative or supervisor for the New England area) "broke in" and said that they "would have to get out of the union" if they wanted to be hired by the Company . Grazio returned to the station on August 3 and completed the job application form . When he handed it to Maliszewski, the latter again asked him if he was "still in the Union." When Grazio answered that he was , Maliszewski said that he had "all the help he needed at the time , and if he did need anybody, he had a list of people who had applied. 117 Employee Sweetser testified credibly that he and employee Mark Bird similarly visited the Haverhill station on August 1; and that Maliszewski told them to return in several days to complete their applications. Maliszewski asked these two also whether they "left the Union." When they said "no," Maliszewski stated that he "expect[ed them] to get a withdrawal card from the Union if [they] were going to work for Sousa." According to Sweetser's further credited testimony , when he returned to fill out his application on August 3, Maliszewski "again asked ... if [he] had withdrawn from the Union ." Sweetser answered that he "hadn 't" yet done so. Maliszewski said that "they expected [him] to [do so] if [he] were to work there." None of the five former Liberty station attendants was offered ajob by Sousa.8 b. Drivers Only one of Liberty' s three drivers terminated on July 31 applied for retention . Minihan , who took his vacation in August, testified credibly and without contradiction that on September 14 he spotted a Sousa advertisement for a fuel driver in a local newspaper; that on the same day he telephoned and made an appointment with Supervisor Stathos , in charge of Sousa's drivers , to fill out a job application ; and that he completed one on the next day, indicating , among other things , that he had worked for Liberty. Minihan was never contacted about the job .9 Mmihan admitted that in making his application he was not questioned about his union affiliation . But the Union had by that time (on August 9) filed the unfair labor practice charge in the instant proceeding alleging that Sousa had discriminatorily refused to retain its predeces- sor's employees.io 4. Respondent's alleged reason for refusing to retain or hire the Liberty employees Although during his negotiations for the sale of the testimony of employees Grazio and Sweetser For reasons stated infra (In 13), Mahszewski, who contradicted the employees , impressed me as an unreliable witness 9 Minihan had worked for Liberty for 22 years is Carl Noyes, Liberty's "on-call" part-time driver (supra, In . 4), also applied for a driver's position in September However , he was not in Liberty's employ on July 31, having last worked for Liberty in the 1972-73 winter Sousa General Manager Coan testified credibly that he had "never heard of Noyes" and "didn't even know there was anybody connected with Liberty by the name of Noyes." Although Noyes disclosed his former connection with Liberty and his union affiliation to the individual he spoke with and attributed to that individual the statement that Sousa "didn't want anything to do with the Union, " he could not identify the individual as a supervisor or person for whose conduct Respondent is responsible. 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Haverhill station, Liberty official Milhendler told the Sousa representatives that he had a "very good crew," he also mentioned that Liberty had a "very good crew," he also mentioned that Liberty had been experiencing "pretty strong" cash shortages, without getting into specifics as to amounts or possible suspects. He explained that in the normal operation of gasoline stations such as his, utilizing the "open register" system (where attendants retain cash from customers "in their pockets" until the end of the shift), some shortage is "normal" and expected. Sousa General Manager Coan similarly indicated that gasoline stations, including Sousa's, experience such cash short- ages .ii He testified that after checking with Liberty's bookkeeper in July the extent of Liberty's shortages in May ($230 or $240) and June ($360), he and President Sousa decided in the first week of July not to retain the Liberty employees. Station Manager Maliszewski and Coan testified that the original crew at Haverhill consisted of three or four station attendants who had worked with Maliszewski at a nearby Sousa station and six or seven others hired through newspaper advertisements. According to Coan, he had instructed Maliszewski "to get a new crew" without telling him why he did not want the Liberty employees.12 The only driver needed and used at Haverhill was transferred from Respondent's Danvers facility. It will be recalled ( supra, sec. A, 1) that Sousa did not purchase Liberty's tractor-trailers (operated by two Liberty drivers). Sousa drivers hauling products from the terminal to other Sousa stations made an additional stop at Haverhill for a like purpose.13 5. Respondent's refusal to recognize and bargain with the Union It is undisputed that the Union was, prior to Respon- dent's acquisition of the Haverhill station, the exclusive bargaining representative of Liberty's employees in an appropriate bargaining unit.14 The complaint alleges, and Respondent's answer admits, that the Union requested Sousa to recognize and bargain with it as exclusive representative of the employees at the Haverhill station, ii Coan cited as an example shortages at Sousa's Clifton, New York, station . According to Coan, because it is difficult to trace or "pin down" shortages to any particular attendants , it was Sousa's practice to "ask (the attendants ) to be very, very careful in handling of money" and if the shortages persisted the entire shift would be replaced. i2 Explaining why he did not tell Maliszewski (and Milhendler) the reason for not retaining the Liberty employees, Coan testified , "We didn't want anything to come out about any thefts or shortages and we didn't want to accuse anybody . we just felt the less said about it the better." 13 The findings in this section are based on credited testimony of Milhendler and Coan. To the extent that the latter's testimony conflicts with that of Milhendler, I credit that of Milhendler, who impressed me as a more impartial and trustworthy witness. Thus, I find, as Milhandler testified, that it was not until the consummation of the sale (July 30 or 31) that Sousa informed him that it was "going to bring in their own people." I do not credit Coan's testimony that he had apprised Milhendler of this decision in the second week of July. Nor do I credit Coan' s and Maliszewski's testimony as to why the Liberty station attendants were not hired. To begin with, if, as Coan testified, the cash "shortages" at Liberty had motivated his refusal to retain any Liberty employee, it is hard to believe (as he further testified) that he would have concealed the "shortages" information from Maliszewski , his subordinate who did the hiring . Maliszewski s own testimony as to his knowledge of the "shortages" is confusing, to say the including station attendants and drivers; and that Sousa rejected the request. B. Conclusions 1. "It is a settled principle that when employees have bargained collectively with an employer and there occurs a change of ownership not affecting the essential nature of the enterprise, the successor employer must recognize the incumbent union and deal with it as the bargaining representative." Tom-A-Hawk Transit, Inc. v. N.LR.B., 419 F.2d 1025, 1026-27 (C.A. 7, 1969). See also N.L.R.B. v. Burns International Security Services, Inc., 406 U.S. 272 (1972). Here, it has been stipulated that except for the predecessor employer's (Liberty's) workforce, the purchas- er "has continued the employing industry," operating the identical facility with substantially the same equipment, dealing in the same products, and servicing the same customers. Respondent's excellent brief analyzes decisions, including the Supreme Court's Burns decision, which emphasize that a nondiscriminatory hiring of a different workforce by a new owner may interrupt the continuity of the employing enterprise.15 The crucial question here, however, as both Respondent and General Counsel recognize, is whether Respondent's failure and refusal to retain or hire Liberty's employees when it took over the business was discriminatorily motivated; i.e., because the Liberty employees were unionized and under subsisting collective agreements . If Respondent "unlawfully refused to hire them . . . they were by operation of law its employees" (Triangle Maintenance Corp., 194 NLRB 486, 487) and, hence, under an obligation to recognize and deal with the bargaining representative. Such refusal also constituted impermissible discrimination in regard to hire and tenure of employment. See K B. & J. Young's Super Markets, Inc. v. N.LR.B., 377 F.2d 463 (C.A. 9, 1967), enfg. 157 NLRB 271, 278-279; Piasecki Aircraft Corpora- tion v. N.L.R.B., 280 F.2d 575, 584-585 (C.A. 3, 1960). 2. The question whether Respondent refused to retain the Liberty workforce for discriminatory reasons or legitimate reasons presents only a question of fact. We have been repeatedly told that the issue in cases of this type is not "whether there was a proper cause for the least . Although he testified that he did not know of the shortages when the Liberty applicants applied for jobs on August 1 and 3 (supra, sec A,3,a) and did not learn of them until "close to a week later" when James Sousa (Respondent's New England area sales representative ) happened to mention them as he (Maliszewski ) was reviewing a batch of job applications, he averred in his pre-hearing affidavit, "I did not hire any Liberty people because I knew that prior to the Sousa purchase this particular station was suffering from cost shortages " On the whole, based on observed demeanor as well as content of his entire testimony at the hearing , Maliszewski impressed me as a witness studiously striving to avoid testifying detrimen- tally to his employer' s interests Coan, too, was at times prone to exaggerate. Thus, although he testified that the 3 or 4 men transferred to Liberty from another Sousa facility "had been with us for some time , were honest, trustworthy people, good workers who knew how to handle a station," Maliszewski's testimony shows that two of the "transferees" had previously worked with him at the Sousa facility only "a month or so " 14 The unit consisted of all road drivers, local delivery drivers, and station attendants , excluding office clerical and professional employees, guards and supervisors as defined in Section 2(11) of the Act 13 See , e.g, Triangle Maintenance Corp, 194 NLRB 486; Tallakson Ford, Inc, 171 NLRB 503, 504; N.L.R B v. John Stepps' Friendly For4 Inc, 338 F.2d 833 (C A. 9, 1964) J.R. SOUSA & SONS 985 [refusal to hire ] . . . but also, conceding such cause, whether the [employer] acted upon it, or for reasons prohibited by the Act." Onan v. N.L.R.B., 139 F.2d 728, 730 (C.A. 8). "In order to supply a basis for inferring discrimination, it is necessary to show that one reason for the [refusal to hire] is that the employee was engaged in protected activity. It need not be the only reason but it is sufficient if it is a substantial or motivating reason, despite the fact that other reasons may exist." N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1).16 The "Board could well determine on the whole . . . record that `but for' their union [affiliation] . . . employees would not have been [refused employment]." Self-Reliance Ukraman Amer- ican Cooperative Assn., Inc., d/b/a Certified Foods v. N.L.R.B., 461 F.2d 33, 38 (C.A. 7, 1972); see also Sweeny & Company, supra, 437 F.2d at 1133; N.L.R.B. v. Whitfield Pickle Company, 374 F.2d 576, 582 (C.A. 5, 1967); Ayer Sanatorium, supra, 436 F.2d at 50. 3. Viewing the record as a whole, I am persuaded that Respondent's refusal to retain the Liberty employees was motivated at least in substantial controlling part by antiunion considerations. To begin with, the credited evidence shows that Station Manager Maliszewski, who hired the gasoline station attendants for Respondent, made it clear over and over again to the Liberty employees who attempted to hold onto theirjobs that they would first have to withdraw from the union. So did James Sousa, Respondent's Sales Representative for the New England area. In this aspect, this is one of those "rare" cases where there is "direct evidence of a purpose to violate the statute." Hartsell Mills Co. v. N. L. R. B., 111 F.2d 291, 293 (C.A 4). See also N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 698 (C.A 8, 1965). Also relevant is the timing of Respondent's decision (the first week of July) not to retain the Liberty employees-a decision made shortly after Respondent obtained copies of Liberty's collective agreements with the Union ("late June or in the beginning of July"); the concealment of the alleged reason for its decision from thejob applicants, their former employer (Milhendler), and even from Respon- dent's own station manager who did the hiring; the employment of "green hands" (N.L.R.B. v. Remington Rand, Inc., 94 F.2d 862, 872 (C.A. 2)) to man the station-bypassing even a unionized driver (supra, fn. 9) with 22 years' experience; and the circumstance that none of its 200 facilities in New England and New York are organized. All of these factors fortify the inference from other evidence in the record (including the "direct evidence") that Respondent was looking for a superficially plausible basis to conceal its true motive for refusing to retain the Liberty employees, namely, to avoid having any employees represented by a collective bargaining agree- i6 Accord N L R B v Gladding Keystone Corp, 435 F 2d 129, 131 (C.A 2, 1970), Sweeney & Company, Inc v. N LR B, 437 F 2d 1127, 1133 (C A. 5, 1971); NLRB v Symons Mfg Co, 328 F 2d 835, 837 (C A. 7, 1964), Wonder State Manufacturing Company v N LR.B, 331 F.2d, 737, 738 (C A 6, 1965) N L R B v Ayer Lar Sanitarium, 436 F 2d 45, 50 (C A 9, 1970), and cases cited therein The criterion that Respondent would apply (br pp. 9, 11), i e , that a purchaser 's refusal to hire the predecessor 's employees is unlawful only if it is motivated "solely" by discriminatory reasons, is mistaken The dictum from Burns on which Respondent relies does not ment and thus to eliminate facing any statutory obligation to bargain collectively under the Act. 4. To be sure, the record is not devoid of evidence tending to negate discrimination . Thus, as Respondent points out (br. p. 18), the record indicates that Respondent had not previously been the subject of an unfair labor practice proceeding; and it is a fact that Liberty had experienced some cash shortages.17 However, the undisput- ed facts show that cash shortages are a normal part of the gas station business where the "open register" system (permitting employees to retain cash "in their pockets") is utilized; that Sousa itself has experienced shortages at other stations, and did so even at the Liberty (Haverhill) station itself-after it began to operate it with the new crew that displaced the Liberty employees; that Milhendler (Liberty's top executive) did not regard the shortages at Haverhill as serious and disqualifying-indeed, he told Respondent during the sales negotiations that he still considered his employees to be "very good" and, after Respondent turned them down, gave several of them part- time employment; and finally, that Respondent failed and refused to retain any one of Liberty's three fuel drivers even though none was claimed to have been involved in any cash shortages. 5. Accordingly, after giving full weight to the counter- vailing factors buttressing Respondent's position, I find that they are outweighed by factors supporting a finding of discriminatory motivation. Cf. General Electric Co., 155 NLRB 208, 221-222; Alton Box Board Co., 155 NLRB 1025, 1039. I accordingly conclude that General Counsel has met the burden of establishing by a fair preponderance of substantial credible evidence that Respondent' s failure and refusal to retain or hire the Liberty employees was, at least in substantial and controlling part, motivated by its desire not to deal with the Union as bargaining representa- tive of the employees at the Haverhill station. Respondent thereby violated Section 8(a)(3) and (1) of the Act; and, further, evaded its obligation as Liberty's successor to recognize and bargain with the Union, thereby also violating Section 8(a)(5) and (1) of the Act. Cf. K. B. & J. Young's Super Markets, Inc. v. N.LR.B., 377 F.2d 463 (C.A. 9, 1967), enfg. 157 NLRB 271, 278-279. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. At all material times all road drivers, local delivery drivers, and station attendants, employed by Respondent at its premises at 236 South Elm Street, Haverhill, Massachusetts, excluding office clerical and professional employees, guards and supervisors as defined in Section overcome the settled and frequently court-approved Board principle that a partial but significant discriminatory contributory factor is sufficient to taint the conduct. 17 As noted (supra, sec A, 4), Liberty had a cash shortage of $230 or $240 in May and $360 in June . According to General Manager Coan, this increased to $430 or $440 in July, but the July shortage obviously played no role in Respondent's decision (the first week of July) not to retain the Liberty employees 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2(11) of the Act, constituted and now constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By failing and refusing to retain or hire Liberty's employees, after purchasing and operating the Haverhill gasoline station, in order to avoid dealing with the Union as the exclusive bargaining representative of the employees in the above-named appropriate unit, under the circum- stances described and found in section II, supra, Respon- dent has discriminated in regard to hire and tenure of employment, in violation of Section 8(a)(3) and (1) of the Act; and has evaded its obligation as successor to Liberty to recognize and bargain with the Union, in violation of Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices effect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY A. Respondent having engaged in unfair labor prac- tices should be required to cease and desist therefrom, and to take the following affirmative action required to effectuate the policies of the Act: 1. Upon request, bargain in good faith with the Union as exclusive representative of its employees in the appropri- ate bargaining unit with respect to wages, hours, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. 2. Offer the seven station attendants and one fuel driver employed in the appropriate unit on the date it purchased from Liberty the Haverhill gasoline station (July 31, 1973) immediate employment in the same positions (or if those positions no longer exist, in substantially equiva- lent positions) which they held on that date, without prejudice to their seniority and other rights and privileges, dismissing, if required, all such employees in the said unit as have been hired since it took over operation of that station; and make them whole by payment to each of a sum of money equal to that which he normally would have earned in Respondent's employ from the date Respondent began operations to the date of the offer of employment, less his net earnings, if any, during the said period. Backpay, together with interest, shall be computed in the is The seven station attendants referred to here are Mark Bird, Ronald G Buccim, Stephen P Clifford, Michael Gallagher, Vance A Grazio, Bernard M Meader, and Frank E Sweetser Although three fuel drivers were employed by Liberty at the gasoline station on July 31 (Louis A Boucher, Martin D. Flint, and John Mmihan), the record establishes (supra, sec A,4) that for business reasons and its manner of operation Respondent requires (and since it has commenced operation employed) only one driver Accordingly, the reinstatement and backpay order herein shall apply to only one of the three former Liberty drivers, said driver to be selected by Respondent in accordance with such system of seniority or other nondiscriminatory practice as it has heretofore applied (but without regard to union membership) in the conduct of its business . The remaining two drivers, for whom employment is or may not be available, shall be placed on a preferential hiring list and offered employment, in accordance with a like system of priority, before other fuel drivers are hired by Respondent As previously noted (supra fns 4 and 10), a fourth fuel driver (Carl Noyes) was "on call" by Liberty, working part-time when needed He had a full-time job elsewhere, was not employed by Liberty on the date of the sale, and was not terminated on that date Since there is no reason to believe that Respondent has used or can use an "on call" driver such as Noyes, and, furthermore , since it is doubtful that he was in the appropriate unit at the time of the sale, the reinstatement and backpay order shall not be applicable manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.18 B. In its brief (p. 22) Respondent contends that "the failure of the majority of the former Liberty employees to apply for employment at [Respondent's] new station precludes a finding that the failure to hire them was unlawful." To begin with, a majority of the Liberty employees, i.e., 6 of the 11 in the bargaining unit, did apply for retention.19 In any event, since, as found, Respondent discriminatorily refused to retain or hire the unionized Liberty employees in order to avoid dealing with the Union as their bargaining representative, the Liberty employees were in the same category as discriminatorily discharged employees whose reinstatement, under settled Board law, is not dependent upon an antecedent applica- tion for employment. See N.L.R.B. v. Southern Greyhound Lines, 426 F.2d 1299, 1303 (C.A. 5, 1970); Virginia Stage Lines, Inc. v. N.L.R.B., 441 F.2d 499, 504 (C.A. 4, 1969); Idaho Potato Growers, Inc. v. N.L.R.B., 144 F.2d 295, 305 (C.A. 9). As in a discriminatory discharge, so also in a refusal to retain in an existing employment or to hire pursuant to a discriminatory policy, the filing of an application for reinstatement "would have been a com- pletely useless ritualistic act." Southern Greyhound Lines, supra at 1303. This is vividly illustrated here where none of the six Liberty employees who filed formal applications was retained or ever called. Here, as in Idaho Potato Growers, supra, 144 F.2d at 305, "[t]here is nothing in the record which indicates in the slightest that [any of the discriminated Liberty employees] would not at any time have accepted reinstatement." 20 C Because the unfair labor practices committed are of a character striking at the roots of employees' rights safeguarded by the Act, it will also be recommended that Respondent be required to cease and desist from interfer- ing in any manner with the rights of employees guaranteed in Section 7 of the Act. 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: to Noyes tv Respondent's hypothesis is predicated on the erroneous assumption, noted supra (fn 3), that Liberty employed 12 station attendants and 3 "regular" drivers on July 31, the date of sale Liberty actually employed only 7 attendants, of whom 5 filed job applications (supra, fn 6) The sixth application was filed by Minihan , one of the three "regular" drivers 20 The instant case is distinguishable from others (some relied on by Respondent) wherein the Board and courts have held that an employment or reinstatement application is a sine qua non to the right to a Job-eg, a striker who must indicate his willingness to work since he was "the source of his own disemployment his employer did not fire him" (Southern Greyhound Lines, supra, 426 F 2d at 1303), or employees lawfully laid off where the employer is "under no obligation to seek them out and offer them future employment" (Maphis Chapman Corp, 151 NLRB 73, 84), or former unionized employees of a closed plant seeking work at their employer's new plant, where union animus is absent or is only "trivial" (Fruehauf Trailer Co, 162 N LRB 195, 214), or former employees of a predecessor company where there is no "causal connection between the [successor employer's[ imposition of an illegal condition [withdrawal from their union ) and [the employees '] failure" to work for the successor , i e , refusal to work for the successor for personal reasons (Interstate 65 Corporation d/b/a Continental Inn, 186 NLRB 248, 249-250 J.R. SOUSA & SONS 987 ORDER 21 Respondent , J. R. Sousa & Sons , Inc., its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to hire employees of Liberty Oil of Haverhill, Inc. because of their membership in Teamsters, Chauffeurs, Warehousemen and Helpers Union Local No. 437, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. (b) Otherwise discriminating against employees in regard to their hire, tenure or other term or condition of employment, thereby discouraging membership in said union. (c) Failing or refusing to recognize and bargain collec- tively concerning rates of pay , wages, hours, and other terms and conditions of employment with the above- named Union as the exclusive representative of the employees in the bargaining unit described below: All road drivers, local delivery drivers, and station attendants at Respondent's Haverhill facility, 236 South Elm Street, Haverhill, Massachusetts. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer the following named individuals immediate employment in the same positions (or, if those positions no longer exist, in substantially equivalent positions) which they held on July 31, 1973, without prejudice to their seniority or other rights and privileges, in the manner set forth in the section of this Decision entitled "The Remedy". Mark Bird Ronald G. Buccini Stephen P. Clifford Michael Gallagher Vance R. Grazio Bernard M. Meader Frank E. Sweetser (b) Offer one of the following three individuals immedi- ate employment in the same position (or, if that position no longer exists , in a substantially equivalent position) which he held on July 31, 1973, without prejudice to his seniority or other rights and pri ileges, and place the two remaining individuals on a preferential hiring list for future employ- ment when positions become available, in the manner set forth in the Remedy section hereof: Louis A. Boucher Martin D. Flint John Minihan (c) Make whole the individuals named in above paragraph (a) and the individual selected for employment pursuant to above paragraph (b), for any loss of earnings each may have suffered by reason of the discrimination against him , in the manner set forth in the Remedy section hereof. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records necessary for determination of the amounts of backpay due and of the rights to employment under the terms of this Order. (e) Upon request, bargain with Teamsters, Chauffeurs, Warehousemen and Helpers Union Local No. 437, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , as the exclusive representative of all employees in the bargaining unit hereinbefore described, with respect to rates of pay, wages, hours, and other terms and conditions of employment; and embody in a signed agreement any understanding reached. (f) Post at its Haverhill facility (236 South Elm Street, Haverhill, Massachusetts) copies of the attached notice marked "Appendix." 22 Copies of said notice, on forms provided by the Board's Regional Director for Region 1, shall, after duly signed by Respondent's representative, be posted by it 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 by Respondent to insure that said Notices are not altered, defaced, or covered by any other material. (g) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed in all other respects. 21 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 , recommendations , and recommended Order which follow 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. 22 In the event that the Board's 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 be changed to "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial before an Administrative Law Judge, at which all sides had the chance to give evidence, it has been decided that we have violated the National Labor Relations Act, and we have been ordered to post this notice: The National Labor Relations Act gives you, as an employee these rights: To engage in self-organization; To form, join, or help unions; 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To bargain collectively through a representa- tive of your own choosing; Or, if you wish, not to do any of those things. Accordingly, we give you these assurances: WE WILL NOT do anything that interferes with any of your rights listed above. WE WILL NOT refuse to hire employees of Liberty Oil of Haverhill, Inc., because of their membership in Teamsters, Chauffeurs, Warehousemen & Helpers Union Local No. 437, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; nor otherwise discriminate against em- ployees for belonging to or supporting that or any other labor organization. WE WILL offer the following former Liberty Oil station attendants immediate employment in the same positions (or, if those positions no longer exist, in substantially equivalent positions) which they held on July 31, 1973, without prejudice to their seniority or other rights and privileges, and make up all pay they lost plus interest: Mark Bird Ronald G. Buccini Stephen P. Clifford Michael Gallagher Vance R. Grazio Bernard M. Meader Frank E. Sweetser WE WILL offer one of the following three former Liberty Oil drivers immediate employment in the same position (or, if that position no longer exists, in a substantially equivalent position) which he held on July 31, 1973, without prejudice to his seniority or other rights and privileges; WE WILL make up the pay he lost, plus interest ; and will place the two remaining drivers on a preferential hiring list for future employment when driver positions become available in accordance with the procedure provided in the Board 's order: Louis A. Boucher Martin D. Flint John Miniham WE WILL, upon request , bargain collectively in good faith with the above-named Union as exclusive repre- sentative of all our employees in the unit described below , with respect to rates of pay, wages , hours of employment, and other terms and conditions of employment ; and embody in a signed agreement any understanding reached . The bargaining unit is: All road drivers, local delivery drivers, and station attendants at our Haverhill facility, excluding office clerical and professional employ- ees, guards and supervisors as defined in the Act. Dated By J. R. SOUSA & SONS, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 7th Floor, Fulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300.