Roadway Express, Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1981

254 N.L.R.B. 668 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roadway Express, Inc. and Joseph L. Houston
Teamsters Union Local #5 and Joseph L. Houston.
Cases 15-CA-6974 and 15-CB-2057
January 26, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On July 31, 1980, Administrative Law Judge
Robert G. Romano issued the attached Decision in
this proceeding. Thereafter, Respondent Employer
filed exceptions and a supporting brief, and the
General Counsel refiled with the Board its brief to
the Administrative Law Judge, in support of the
Administrative Law Judge's Decision.
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, find-
ings, and conclusions of the Administrative Law
Judge to the extent consistent herewith, and to
adopt his recommended Order, as modified herein.
Respondent Roadway in its exceptions contends,
inter alia, that the Administrative Law Judge's
findings of violation vis-a-vis Respondent Roadway
are not supported by substantial evidence, that tes-
timony of the Charging Party is neither credible
nor plausible as it impacts on Respondent Road-
way, and that the complaint against Respondent
Roadway should in any event be dismissed in light
of a settlement agreement entered into by all par-
ties treating, inter alia, Respondent Roadway's al-
leged violations. We find merit in Respondent
Roadway's exceptions.
On August 10, 1978, the Acting Regional Direc-
tor for Region 15 issued a consolidated complaint
with respect to the charges herein. The record dis-
closes and the parties have stipulated that Respon-
dent Roadway thereafter, at the urging of counsel
for the General Counsel, entered into a settlement
agreement. All parties signed said agreement,
which was approved by the Board's Acting Re-
gional Director on February 7, 1979. By letter
dated February 8, 1979, the Board issued notices to
employees and to members for posting in appropri-
ate places, and otherwise initiated compliance pro-
cedures. By letter dated March 7, 1979, Respon-
dent Roadway was notified by the Acting Regional
Director that on February 23, 1979, Respondent
Local 5 had announced its intention to the Board
not to comply with the settlement agreement. Also,
on March 7, 1979, the Acting Regional Director
254 NLRB No. 26
issued a new order consolidating cases and a con-
solidated complaint and notice of hearing. Respon-
dent Roadway at no time refused to comply with
the aforesaid agreement, but was at all times ready
to comply fully with its terms. The settlement
agreement was set aside through no fault of Re-
spondent Roadway and no subsequent unfair labor
practices have been alleged.
"It is well established that an unfair labor prac-
tice will not be found based on presettlement con-
duct unless there has been a failure to comply with
the settlement agreement, or subsequent unfair
labor practices have been committed."' Indeed,
"[t]here is no question that a Regional Director
may not set aside a settlement agreement and issue
a formal complaint unless the charged party has
failed to comply with its terms or committed fur-
ther unfair labor practices." 2 In the instant case,
the General Counsel neither contends that Respon-
dent Roadway has refused to comply with the set-
tlement agreement nor alleges any subsequent
unfair labor practices.3 Accordingly, we shall dis-
miss the complaint in Case 15-CA-6974, and rein-
state the settlement agreement approved by the
Acting Regional Director for Region 15 on Febru-
ary 7, 1979. 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied herein, and hereby orders that:
1. Section A of the Administrative Law Judge's
recommended Order is deleted in its entirety.
2. Section B of the Administrative Law Judge's
recommended Order is modified to read as follows:
"B. Respondent Union, Teamsters Union Local
#5, its officers, agents, and representatives shall:
"1. Cease and desist from:
"(a) Causing or attempting to cause Roadway
Express, Inc., to discriminate against Joseph L.
Houston with regard to employment at Employer's
' Interstate Paper Supply Company Inc., 251 NLRB 1423, fn. 8 (1980)
2 Bingham-Williamette Company. a Division of Guy F Atkinson Compa-
ny, 199 NLRB 1280, 1281 (1972)
:1 While Respondent's Motion for Summary Judgment on this ground
was denied by the Board by telegraphic order dated May 23, 1979, prior
to the opening of the hearing herein, it was not then known whether the
complaint would be amended at hearing to allege further unfair labor
practices or failure to comply with the settlement agreement
4 United Dairy Co., 146 N.RB 18R7 189 (1964). In view of this disposi-
tion of Case 15 CA-6974, we find it unnecessary to reach Respondent
Road way's other contentions. In the event that Respondent Roadway
subsequently fails to comply with the terms of said settlement agreement,
the Regional Director would. of course, he free to take further appropri-
ate actilon
668
ROADWAY EXPRESS, INC
Baton Rouge terminal because of his lack of mem-
bership in the above Union.
"(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them under Section 7 of the Act.
"2. Take the following affirmative action de-
signed to effectuate the policies of the Act:
"(a) Notify the Employer, Roadway Express,
Inc., and Joseph L. Houston, by letter, that it has
no objection to the employment of Joseph L.
Houston by the Employer at the latter's Baton
Rouge terminal.
"(b) Make Joseph L. Houston whole for any loss
of pay or other benefits suffered by reason of the
discrimination practiced against him, together with
interest, in the manner described above in the sec-
tion entitled 'The Remedy.'
"(c) Post at its offices copies of the attached
notice marked 'Appendix.' 3 8 Copies of said notice,
on forms provided by the Regional Director for
Region 15, after being duly signed by an autho-
rized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to mem-
bers 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.
"(d) Deliver to the Regional Director for Region
15 signed copies of said notice in sufficient number
to be posted by Roadway Express, Inc., at its
Baton Rouge terminal, the Employer willing, in all
places where notices to employees are customarily
posted.'
"(e) Notify the Regional Director for Region 15,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith."
38 "In the event that this Order is enforced by a Judgment of a nited
States Court 4f Appeals, the ords in he notice reading 'Posted by
Order of the National I.abor Relations Board' shall read 'Poted Pursuant
to a Judgment of the United Staltes Courlt of Appeals Enfircing an Order
of the National Labor Relations Board'
IT IS FURTHER ORDERED that the settlement
agreement between the parties approved by the
Acting Regional Director for Region 15 on Febru-
ary 7, 1979, is hereby reinstated with respect to Re-
spondent Roadway Express, Inc., and the com-
plaint in Case 15-CA-6974 shall be, and it hereby
is, dismissed.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL. NOT cause or attempt to cause
Roadway Express, Inc., to discriminate against
Joseph L. Houston with regard to employment
at Roadway Express, Inc.'s, Baton Rouge ter-
minal because of lack of membership in Team-
sters Union Local #5.
WE WILL NOT discriminate, with regard to
job referrals, against Joseph L. Houston, be-
cause of his nonmembership in the Teamsters
Union, Local #5.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed by Section 7 of the Act.
WE WILL make Joseph L. Houston whole
for any loss of pay suffered by reason of the
discrimination against him, plus interest.
WE WILL notify Joseph L. Houston and
Roadway Express, Inc., by letter, that we
have no objection to the employment of
Joseph L. Houston by Roadway Express, Inc.,
at its Baton Rouge terminal.
TEAMSTERS UNION LOCAL #5
DECISION
STATEMENT OF THE CASE
ROBER I G. ROMANO, Administrative Law Judge:
These consolidated cases were heard in Baton Rouge,
Louisiana, on May 30 and June 1, 1979. The charge in
Case 15-CB-2057 was filed against General Truck Driv-
ers, Warehousemen & Helpers Local Union No. 5
(herein called Teamsters Union Local #5, Local 5, or
Respondent Union).' by Joseph L. Houston. an individ-
ual charging party (herein called Houston), on May 24,
1978,2 and, on July 17, the charge in Case 15-CA-6974
was filed by Houston against Roadway Express, Inc.
(herein called Respondent Employer). An initial order
consolidating case, consolidated complaint, etc., was
issued by the Acting Regional Director for Region 15 on
August 10, 1978, alleging violations of Section 8(b)(1)(A)
and (2) by Respondent Union and of Section 8(a)(1) and
(3) by Respondent Employer. Thereupon an informal set-
tlement agreement was initially reached by the parties
and approved by the Acting Regional Director for
Region 15 on February 7, 1979. However, as of Febru-
ary 23, 1979, Respondent Union declined to comply with
' Although the charge and complaint name the Union a rTeamster,
Unioln I (ocal #5, the full name of the Union appears as rc.ealed hb ad-
misiol of the Union in i t ilnsser
2 All ldate, re in 1978 nless oherswise stated Certain errors il the
transcript are herehb noted ad corrected
669
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all the terms of the aforementioned informal settlement
agreement. Resultingly, on March 7, 1979, the Acting
Regional Director for Region 15 vacated and set aside
the above settlement agreement and reissued an order
consolidating cases, consolidated complaint, and notice
of hearing (herein called the complaint), alleging viola-
tions of Section 8(b)(l)(A) and (2) by Respondent Union
and of Section 8(a)(l) and (3) by Respondent Employer.
On March 14 and 19, 1979, Respondent Union and Re-
spondent Employer, respectively, filed their timely an-
swers, inter alia, denying the commission of any unfair
labor practices. On May 14, 1979, Respondent Employer
filed a Motion for Summary Judgment (together with a
memorandum in support thereof) essentially requesting
that the two cases be severed, the informal settlement
agreement with Respondent Employer be reinstated, and
the complaint against Respondent Employer be there-
upon dismissed. The General Counsel filed an opposition
thereto on May 21, 1979, and thereafter said Employer's
Motion for Summary Judgment was denied by an order
of the Board dated May 23, 1979, whereupon the afore-
said matters came on for hearing before me as earlier
noted. The primary issues appear to be whether Respon-
dent Union has violated Section 8(b)(1)(A) and (2) as al-
leged in the complaint by causing Respondent Employer
to not hire Houston because of his lack of membership in
Respondent Union, and whether Respondent Employer
did, on May 23, refuse to hire Houston because of his
lack of membership in Respondent Union. Assuming
findings on the latter appear warranted, certain remedial
issues pertaining to prospective reinstatement and back-
pay are presented by contentions of Respondent Employ-
er advanced on the basis of certain circumstances atten-
dant to the latter's subsequent recall of Houston to an-
other terminal (from which Houston had earlier been
laid off) and its discharge of Houston thereafter for con-
tended unrelated and unquestioned good cause.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consider-
ation of the briefs filed by the General Counsel, Respon-
dent Union, and Respondent Employer on July 17, 1979,
I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company, a Delaware corporation, inter alia has
offices and facilities located in Baton Rouge, Louisiana,
the location directly involved herein. (It additionally has
certain other facilities/operations located at Birmingam,
Alabama, and at Chattanooga, Tennessee.) The Company
is engaged in the interstate transportation of goods and
materials by truck transport. During the past 12 months,
Respondent Employer derived revenues in excess of
$50,000 or the shipment of goods and materials from its
Baton Rouge, Louisiana, terminal directly to points lo-
cated outside the State of Louisiana. The complaint al-
leges and Respondent Union and Respondent Employer
concede that the latter is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act and that Respondent Union is labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
I. The relevant Teamsters locals
Respondent Union, Local 5, with approximately 6,000
members, has jurisdiction in Baton Rouge, Louisiana.
Denis Pedescleaux is an assistant business agent of Local
5. It was stipulated by the parties that Pedescleaux was
at all times material an agent of Local 5 within the mean-
ing of Section 2(13) of the Act. I so find. Teamsters
Local No. 270 has jurisdiction over the New Orleans,
Louisiana, area and Teamsters Local 612 has jurisdiction
at Birmingham, Alabama.
2. Houston's union memberships and prior
employment
Joseph L. Houston has been a truckdriver for many
years. Houston's earliest contact with Respondent Local
5 and Pedescleaux was apparently in 1967. In any event,
Houston testified without objection, or subsequent con-
tradiction, that Pedescleaux was instrumental in 1967 in
initially getting Houston a job working for Daniel Bat-
tery Company, and that in return Pedescleaux requested
that Houston support Respondent Union in an upcoming
election. Houston testified further, again without objec-
tion or subsequent contradiction, that some time there-
after, still in 1967 he obtained regular work with Rider
Truck Lines. Houston was told by the union steward
that he would have to join the Union. According to
Houston, after working only a couple of days, Pedes-
cleaux met Houston on the road; told Houston that he
had to be in the Union; and told him that he was going
to let Houston work that day, but on the following day
Houston would work only if he joined the Union. Hous-
ton also testified that he had wanted to join the Union at
the time and there was not any problem there. Houston
subsequently remained a member of Local 5 during his
employment at Baton Rouge from 1967 to 1971 or 1972.
In 1972, Houston transferred his union membership to
Local 270 in New Orleans (the place of his birth and
where his parents reside).3 However, on November 9,
1972, Houston secured initial employment with Respon-
dent Employer at its Birmingham, Alabama, terminal as
an over-the-road driver. Houston then further transferred
his union membership from Local 270 (New Orleans) to
Local 612 (Birmingham).
Respondent Employer changed its road operations in
1976 occasioning a large transfer of its Birmingham oper-
ations to Chattanooga, Tennessee, and it offered employ-
ment to its Birmingham drivers employment at Chatta-
nooga (apparently without any loss of seniority). Howev-
er, Houston declined to move to Chattanooga, and he
was laid off on May 5, 1976, when work at Birmingham
became substantially reduced. Houston thereupon se-
:' It appears that a member of Local 5 is considered transferred from
Local 5 upon the acceptance of his transfer card in another local. Cf.
Resp Union Exh 2; bylaws. ec 19 C, a.
670
ROADWAY EXPRESS, INC.
cured an honorable withdrawal card from Local 612 on
May 19, 1976. 4
3. The pertinent withdrawal and transfer card
provision
a. Houston 's Local 612 withdrawal card
The General Counsel introduced in evidence Hous-
ton's "Honorable Withdrawal Card," which was issued
in May 1976 and in Houston's possession at all times.
The withdrawal card, on its reverse side, provided Hous-
ton with the following information from the (then) cur-
rent International constitution:
ARTICLE XVIII
Sec. 5(b). This card entitles him to readmission to
the Local Union from which this card was issued at
any time; subject, however, to the provisions of
subsection (e) of this Section.
Sec. 5(c). Any member of a Local Union refusing
full-time employment when offered or leaving em-
ployment within the jurisdiction or going to work
at another craft or occupation outside its jurisdic-
tion on other than a temporary or parttime basis
shall be given an honorable withdrawal card and
cannot remain a member. A withdrawal card shall
be issued to any member of a Local Union who has
retired.
Sec. 5(d). Any ex-member out on a withdrawal
card, and desiring to return to membership, must
first deposit his withdrawal card with the Local Union
by which it was issued, and upon the withdrawal
card being accepted, the member shall be subject to
the rules and laws of the Local Union. Refusal of
any Local Union to accept a withdrawal card shall
be subject to appeal in accordance with the appeal
procedure provided for by this Constitution, exclud-
ing, however, any appeal to the Convention. [Em-
phasis supplied.]
Sec. 5(e) The Local Union must not accept a
withdawal card if the ex-member has committed any
offense while out on withdrawal card which would be
injurious to union principles. Also, if the Local Union
is paying benefits and the ex-member has fallen into
bad health or is liable to become a charge against
the Local Union or International Union, acceptance
of the withdrawal card can be refused by the Local
Union. Likewise acceptance of a withdrawal card
may be refused where adverse employment condi-
tions exist. [Emphasis supplied.]
4 On this record it appears the withdrawal from l.ocal 612 was fully
voluntary on Houston's part. In connection therewith, it is obscrved that
the present International constitution, adopted June 14-17-, 1976, pro-
vides in art. XVIII, sec. 5(a) (Resp. Union Exh I), inter aiha, that hen a
member becomes unemployed he shall be issued an honorable ithdrawal
card upon his request, or otherwise not earlier than 2 months nor later
than 6 months thereafter (ith exception not material). There was no ei-
dence offered that there had been a change in that regard adopted im
1976.
b. Related provisions
The foregoing provisions appear to have been essen-
tially carried forward in the Interantional's (current) con-
stitution, article XVIII, though in renumbered section,
with 6(b) further amended to add a provision that "the
bearer has obtained employment at the craft." It is ob-
served also that the (current) International constitution,
article XVIII, governing transfer and withdrawal cards,
section (a), specifically provides:
It shall be compulsory for a member working under
the jurisdiction of another Local Union to procure a
transfer card from the Local Union of which he is a
member, and to deposit the same with the Local
Union under whose jurisdiction he is working.
And in section 4(a) it states that:
Local Unions shall have jurisdiction over the grant-
ing and acceptance of all honorable withdrawal
cards and shall establish rules in their Bylaws not
inconsistent with this Constitution to govern the is-
suance and acceptance of withdrawal cards with re-
spect to members working within the various crafts
and industries under their jurisdiction.
However, the same said constitution makes its compul-
sory for a local union to accept such transfer card of a
member in good standing with any local union, provided
the member has secured employment and has complied
with the constitution's rules and regulations respecting
transfer, and the bylaws of the local.5
4. The applicable collective-bargaining agreement
The General Counsel also introduced the applicable
collective-bargaining agreement. Thus, the record reveals
that Respondent Employer and Respondent Union are
parties to, and/or governed by, the terms of the National
Master Freight Agreement and Southern Conference
Area Local Freight Forewarding Pickup and Delivery
Supplemental Agreement. The record reveals that said
agreement was in effect from April 1, 1976, to March 31,
1979. The agreement contains provisions for union secu-
rity through a described union shop and an employer
hiring procedure designed to provide equal employment
opportunity to its members. In pertinent part, article 3,
section 1, thus provides as follows:
(b) All present employees who are members of the
Local Union on the effective date of this subsec-
tion or on the date of execution of this Agree-
ment, whichever is the later, shall remain mem-
bers of the Local Union in good standing as a
condition of employment. All present employees
who are not members of the Local Union and all
employees who are hired hereafter shall become
and remain members in good standing of the
Local Union as a condition of employment on and
I.ocal 'S bylaws provide in sec 5 that eligibility to membership ill
.ocal 5 shall hbe as set forth in the said International constitution. and
that applicants are o comply therewih
671
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after the 31st day following the beginning of their
employment or on and after the 31st day follow-
ing the effective date of this subsection on the
date of this Agreement, whichever is the later. An
employee who has failed to acquire, or thereafter
maintain, membership in the Union as herein pro-
vided, shall be terminated seventy-two (72) hours
after his Employer has received written notice
from an authorized representative of the Local
Union, certifying that membership has been, and is
continuing to be, offered to such employee on the
same basis as all other members and, further, that
the employee has had notice and opportunity to
make all dues or initiation fee payments. This pro-
vision shall be made and become effective as of
such time as it may be made and become effective
under the provisions of the National Labor Rela-
tions Act, but not retroactively.
(c) When the Employer needs additional men he
shall give the Local Union equal opportunity with
all other sources to provide suitable applicants,
but the Employer shall not be required to hire
those referred by the Local Union.
Called as a witness by the General Counsel in regard
to certain subpenaed document matters, Pedescleaux oth-
erwise testified that Local 5 does not have a referral hall
procedure nor does it issue permits in regard to work.
However, in connection with the above, he related that
Local 5 does have a procedure whereby when an indi-
vidual comes to the hall he may request that his name be
put on a certain list (with his phone number), which list
is sent to all companies under contract. An interested
company may then use the list and call the man directly.
However, Pedescleaux testified that in his experience
most companies usually pick up their required men off
the street.
5. Houston's membership status, and casual
employment with Respondent Employer in late
1976 and in early 1977
Houston testified that he did not seek to have his
membership transferred back to Local 5 because he had
anticipated being recalled from layoff. Houston was
indeed initially recalled from layoff at the Birmingham
terminal in September 1976, but this employment was
short-lived, he being again laid off at the Birmingham
terminal on October 18, 1976. Apparently promptly
thereafter in October 1976 Houston returned to the
Baton Rouge area. In 1976 Houston worked for Respon-
dent Employer at its Baton Rouge terminal for some 9
days (in total). However, his employment at that termi-
nal was as a casual employee. As was customary under
the contract, Houston was not able to transfer his senior-
ity to the Baton Rouge terminal. Nor was Houston able
to secure full-time employment with Respondent Em-
ployer at its Baton Rouge terminal in 1976, although he
had placed an application for such employment on file
with Respondent Employer during that time. The record
reveals that although Houston was aware that he could
not transfer his seniority with Respondent Employer at
the Birmingham terminal to the Baton Rouge terminal,
nonetheless, it appears that Houston had never found it
fully acceptable that Respondent Employer could not
have earlier selected him (e.g., above other casual em-
ployees) for full-time employment at that time at Baton
Rouge. Significantly, Houston testified, and without con-
tradiction, that every day he had worked (as casual)
David Owens, the steward for Local 5, had told him he
had to join the Union. However, in 1976 Houston did
not elect to seek to renew his membership with Local
612 and then transfer it to Local 5 under the provisions
of the constitution of the International and bylaws of
Local 5 in apparent anticipation of further recall from
layoff at Birmingham, as expressed to Baton Rouge Em-
ployer officials. (However, Houston was subsequently
able to obtain employment with another employer in
Baton Rouge, which then lasted generally from October
1976 to August 1977.)
Houston testified without contradiction that in Febru-
ary or March 1977 Respondent's terminal manager at
Baton Rouge (at the time Ed Allen) had on one addition-
al occasion called and asked Houston to come to work
for him. Houston, who at the time had secured employ-
ment elsewhere, at first declined. According to Houston,
Allen pressed his request, telling Houston that Allen was
in a spot and needed some freight moved and urged
Houston to please come. As Houston had some time off
at the time, he agreed to do so. Houston thus worked for
two additional days as a casual driver for Respondent
Employer on that occasion in early 1977.
6. The alleged conversations with Respondent's
operations manager
Houston also testified that a man named Danny, who
had first identified himself to Houston (in 1976) as the
operations manager and next in line to Terminal Man-
ager Allen, also asked Houston on the latter occasion
(early 1977) why did he not quit his job elsewhere and
come to work for the Employer at its Baton Rouge ter-
minal, asking Houston at that time to get straight with
the Union and telling Houston that Respondent Employ-
er could pay him as much as he was then getting from
his other employer. However, the record reveals Hous-
ton did not elect to do so in 1977. Thus during 1976 and
1977, Houston had worked for Respondent Employer at
its Baton Rouge terminal only briefly and intermittently
for some 11 days in total, at most, and all as a casual.
Houston worked far more substantially for two other
employers in the Baton Rouge area, viz, from approxi-
mately October 1976 to August 1977 with one employer
and (after a 2-month period of other employment outside
the State) from October 1977 to April 1978 with a
second employer in the Baton Rouge area. However, it
appears that during the latter period of employment,
Houston for some considerable time was dissatisfied with
the money he was making, certainly prior to the time he
quit (or was fired) about April 1978.6 (See Employer
Exh. 1, pp. 2 and 3.)
' IThere is some esidentiary suggestion he was actually fired when his
employer heard he wias going to quit (Sec Employer Exh. 3 )
672
ROADWAY EXPRESS, INC.
B. The General Counsel's Case-in-Chief
1. The circumstances of Houston's alleged
nonemployment by Respondent Employer on May
23
The record reveals, with deemed essential consistency,
that it was about mid-March 1978 that Houston exhibited
some renewed interest in again securing employment
with Respondent Employer (as a city driver) at its Baton
Rouge terminal. Thus according to Houston on that oc-
casion he called the Baton Rouge terminal, asking to
speak to Terminal Manager Allen. At that time, Oper-
ations Manager Danny told Houston that Allen was
either busy or gone. However, recognizing Houston's
voice, Danny inquired if the caller were Houston and as
to what he was then doing. Houston identified himself
and said that he was not doing much of anything and
was not working. Danny then asked Huston did he want
to come back and work for the Company. Houston re-
plied yes. According to Houston, Danny again asked
Houston had he got straight with the Union. Houston re-
plied he had not but he would. Danny said that there
was plenty of work (at Roadway), that Houston would
be the first to get a regular job whenever one came up,
and that he should get straight with the Union and then
give them (Respondent Employer) a call.?
2. Subsequent inquiries
There is otherwise some confusion in the record as to
Houston's subsequent efforts, if not immediate continued
intentions, to seek to go to work for Respondent in early
1978. Thus on one hand Houston testified that in April
Boyd White, a friend, had just finished driving school at
the time, and that White kept bugging Houston to go
with him to Respondent Employer to see if White could
get a job there. Houston relates that he at first told
White that he did not want to go over there because
every time he did they wanted to talk about his joining
the Union. However, Houston states tht he finally let
' Respondent objected to the testimony of Houston as to what Oper-
ations Manager Danny may have told Houston on this and other occ.a-
sions on the basis that neither was it alleged in the complaint that Danny
was a supervisor or agent of Respondent Employer nor was the matter
alleged in the complaint to be an unfair labor practice, and because. al-
though conceding that Operations Manager Danny was employed in that
capacity earlier. Respondent was not at the time able to stipulate that
Danny was there at that time since it was then known only that Danny
was terminated soime time in early 1978. The General Counsel contracon-
tended that Danny. identified by witnesses as the operatiols manager.
was a supervisor ithin Sec 2(11) of the Act, that the General Counsel
was not seeking to allege the matter as an independent unfair labor prac-
tice, but that the conversation was material evidence bearing oin the cm-
plaint allegations.
The aforesaid remarks of Danny were taken subject to evidence pre-
vailing on the General Counsel's contention in that regard that the afore
said individual was a supervisor and/or agent of Respondent Employer
for such purpose I am wholly convinced on this record that Danny ras
employed as Respondent's Baton Rouge terminal operations manager
during this material time. and further that he las Robert Wright there-
after) was effectively involved in the hiring process and as a supervisor
and agent of Respondent within the meaning of the Act. I further find
that the evidence is material. being probative that Respondent ilnploy-
er's operations manager Danny ehibited inmlediate inlcrest in Ih union
status of Houston o11 the more recent and clearly mlatcrial octalion of
Houston's preliminary inquiry in regard to job opportunity gain ith
Respondent Employer
White talk him into going with White to Respondent
Employer's Baton Rouge terminal, which they did. Con-
trary to Houston (and White) I find that, on the weight
of the evidence, they probably did so during the week of
March 20. On their arrival at the Baton Rouge terminal,
Houston relates he found Danny present and another in-
dividual named Larry (whom Houston alone identifies as
a dispatcher). It was Houston's recollection that, al-
though White attempted to express his interest in apply-
ing for a job, Danny seemed much more concerned with
a continued inquiry whether Houston had as yet gotten
straight with the Union and specifically asked Houston if
he had done so. On the other hand, seemingly inconsis-
tent with that stated initial reluctance to go with White
to Respondent Employer, Houston also testified that, on
this same occasion, he did tell Danny that he (Houston)
had already talked to the Union a couple of days earlier,
although advising Danny that he had not (as yet) gone
down to the union hall, but adding that he would.
Boyd White confirmed that he went with Houston to
Respondent Employer's Baton Rouge terminal looking
for a job, that Danny told White that he (Danny) was
the man to do the hiring and firing, that he (White) sub-
sequently put in an application with Danny, that Danny
interviewed him, and that Danny told him he would
have to join the Union. White also recalled that Danny
was happy to see Houston at the time and asked Houston
about coming to work for them. Houston replied he
would. White's version of Danny's inquiry of Houston's
union status, however, is somewhat at variance with
Houston's, in that White recalled that Danny on this oc-
casion had asked Houston if he were in the Union; that
Houston had replied no, he was on withdrawal; and that
Danny then said that Houston would have to get
straightened out with the Union. I am convinced that the
statement by Houston that he had already talked to the
Union more probably occurred in the Saturday conversa-
tion with Danny after the earlier visit of Houston and
White, and that White's version of Danny's initial inqui-
ry more probably correctly reflects the conversation be-
tween Danny and Houston that was held earlier that
week while Houstion's recollection is that of a conversa-
tion he had on the following Saturday" and which fol-
lowed more plausibly his own inquiries made of the
Union's steward, David Owens, in the interim.
In any event, according to Houston, it was during the
following week that he actually went down to the hall
intending to talk to Pedescleaux only to find that Pedes-
cleaux was not there at the time. The receptionist sug-
* Although White offered testimony as to the substance of only one
coln\ersatioi it is olthrwlse apparent from the record that White vlsited
the terininal three times and at least twice in the accompaniimenl of
Houstion T 'hus Housion testified that on their irst vlsit tof that week.
Da;lnn did tell White he would have to come hack n oonthe follovlrlng
Salurday to till out an application. vswhich White in the acconpalnimlent of
Houstion did Although the record is clear that Houston did not fill out
an applicatilon in either of these sviils, it s clear that he ;, as present hen
White filled oul the latter' ;application White otherslise tesified that he
had reurned to the terminal to check on lwork opporlunity. and thatl he
thereafter call-:d he ternairll oaser a period if c.eral a ceks, before he-
coinling hlclltirlgedl e.c r bceilg told (halt t s , d lit l r Ince a one I hus
W hite after eeral is eeks sitopped callirig Rlpondeit I-nploer and as
ineer hired
673
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gested that Houston call Pedescleaux later that day at 4
p.m., which he did. Houston asked Pedescleaux whether
the latter had spoken to union steward David Owens.
Pedescleaux replied that he had not. Houston then told
Pedescleaux that Houston had already spoken to Owens,
and Owens had told Houston that he would speak to Pe-
descleaux about Houston getting back with Local 5. Pe-
descleaux told Houston that he would have to transfer in
and, if he wanted to transfer his membership, he would
have to come in and make a request for transfer. Hous-
ton acknowledged that he had made no mention to Pe-
descleaux at this time about having any employment op-
portunity with Respondent Employer.
On Wednesday, March 29, 9 Houston again went to the
Union's hall, where he was shown Pedescleaux's office
by the receptionist. On seeing Houston approaching his
office, Pedescleaux met Houston at his office doorway
and took Houston back towards the receptionist. Enroute
Pedescleaux told Houston that it would take about 3
weeks for his transfer to come through. On arrival at the
receptionist's desk Pedescleaux instructed the receptionist
to make up a request for transfer (of membership) for
Houston. The receptionist then took Houstion's name
and ledger number off his union membership identifica-
tion card, and she also confirmed to Houston that it
would take about 3 weeks for the transfer to arrive. The
copy of said "Request for Transfer," "No. 174," dated
"2-29-78," addressed to Local 612 from Local 5, and ex-
ecuted (as required by the International's constitution) by
Local 5's secretary-treasurer (E. G. Partin) provides:1 0
I hereby certify that Joseph Houston Social Securi-
ty Number 439-60-6300 has obtained work or will
be eligible for work upon issuance of a transfer
card. Please reply with the cost of transfer. Re-
marks ledger #18890 request transfer on w/drawal
May 19, 1976.
On cross-examination Houston relates that he had made
no mention of employment with Respondent Employer
to Pedescleaux because he just figured he (presumably
Pedescleaux) knew he was seeking work, relating that a
man did not come to join the Union unless he wanted a
job, stating that it did not make sense to join a union if
you did not have a job behind it, and stating that a union
was a nuisance to him.
Houston relates that he thereafter sat out the 3 weeks
he had been told that he would have to wait for his
transfer. Houston reports that he then began calling the
hall each day to see if his transfer had come in, and each
time he was told that the Union had not received any-
9 Although Houston (and White) would place earlier visits to the
Baton Rouge terminal with White and his initial visit to the union hall
generally in March-April, I am wholly convinced by virtue of the record
of Houston's transfer request in evidence and dated March 29, and Hous-
ton's firm recollection that his visit with l'edescleaux at the hall was the
next business day after his phone conversation with Pedescleaux that his
visit to the union hall was on March 29, and that his initial call to Pedes-
cleaux was on Tuesday, March 28, wholly compatible with the earlier
visits with White to the terminal during the prior week as well as the
likely resulting conversation with Owens ill regard to arranging member-
ship in Local 5 following renewed coniversations with Danny about his
won employment.
'0 The parties stipulated that the said copy was part of the transfer
procedures and records thereof normally maintained by the ocal Union
thing back. Houston recalls that it was during the second
week of such inquiry that he decided he needed to know
more about it. Houston thus finally asked the receptionist
on one such call to let him talk to Pedescleaux.
According to Houston, on this occasion he told Pedes-
cleaux that he had then been waiting 5 weeks, and every
day he had called, only to be told the transfer had not
come in. (I am persuaded and I find that this conversa-
tion occurred in the second week of May.) Pedescleaux
told Houston at that time that it must be Local 612 that
was holding up the transfer. Houston then asked Pedes-
cleaux what was he supposed to do while waiting on this
transfer, "to sit around and starve to death," then telling
Pedescleaux, apparently (as recalled by Houston) for the
first time, that he had a job with Roadway. (Houston
confirmed that this conversation occurred before he ac-
tually had filled out the application with Roadway.) Ac-
cording to Houston, Pedescleaux responded that he did
not have anything to do with Roadway putting Houston
to work. Houston then told Pedescleaux that he was
going to tell Roadway that Pedescleaux said it was all
right for him to work. According to Houston, Pedes-
cleaux told Houston that when he went to Roadway to
tell Roadway to call Pedescleaux, and that Pedescleaux
would let them know how Houston stood with the
Union. On cross-examination Houston acknowledged sig-
nificantly that after talking to Pedescleaux he at that
point had the definite impression that it was okay for
him to be then employed by Respondent Employer at its
Baton Rouge terminal. Houston also acknowledged that
he never thereafter spoke to Pedescleaux again about the
matter, nor did he make any effort to inquire of Local
612 in Birmingham about any holdup on his transfer.
It was a few days later, on Tuesday, May 16, that
Houston called the terminal and asked to speak to
Danny, but was informed that the latter no longer was
with the Company. Houston was asked if he wished to
speak to John Kavanaugh, the new terminal manager (a
stipulated supervisor). Houston replied no, but he would
come down in person to talk to Kavanaugh.
On the next morning, Wednesday, May 17, Houston
arrived at the terminal and asked to talk to Kavanaugh.
Kavanaugh came out and after mutual introductions Ka-
vanaugh asked what he could do for Houston. Houston
told Kavanaugh of his former employment with Respon-
dent Employer at Birmingham, and stated that he was on
layoff looking for work. On direct examination (though
not on cross) Houston recalled that Kavanaugh said he
had work. However, Kavanaugh also told Houston that
officially he could not take his application that day, and
that Houston should come in on Saturday. Houston
thought that the new operations manager, Bob Wright,
was also present at the time. (Wright testified that he
became terminal operations manager on May .)
On the following Saturday, May 20, Houston returned
to the Baton Rouge terminal and met with both Wright
and Kavanaugh. According to Houston, Kavanaugh told
Houston that he would have to fill out an application,
also telling Houston that, because of being a former
driver at Birmingham, they had a lot of papers on him
from his Birmingham file that he would not have to fill
674
ROADWAY EXPRESS, INC.
out. Houston then filled out an application and gave it to
Wright. Wright looked it over as did Kavanaugh, both
saying it was good, and Kavanaugh remarked that he
was a qualified driver. At one point Houston recalls that
Kavanaugh also told Houston at this time that Houston
would have to get a new physical because his Alabama
card was just about up on its 2 years, and that he was
going to work Houston in the next week. Kavanaugh
then asked Houston if he were in the local union. Hous-
ton told Kavanaugh no, but that he had made a transfer
request and, on direct (but not on cross-examination),
that Pedescleaux told him it was all right for him to go
to work and that Kavanaugh had said he was going to
get in touch with the Local (Pedescleaux). On cross-ex-
amination Houston acknowledged that Kavanaugh did
not on this occasion tell Houston that they would not
hire him, and that he also had told Houston that he
would have to make out a motor vehicle report covering
the latter's driving offenses in the past 3 years.
On the following Tuesday, May 23, Houston initially
called the terminal but could not get through, so he de-
cided instead to again go down to the terminal. On arri-
val, Houston (erroneously) recalled he met dispatcher
Larry and requested to see Kavanaugh. Houston recalled
that Kavanaugh was initially delayed on the phone for
about 20 minutes. According to Houston when Kavan-
augh came out to see Houston, he was shaking his head
and said that he wished there was a way they could
work this out and then told Houston that he had just got
off the phone with Dennis Pedescleaux and that "it [sic]
was no way that he [Pedescleaux] could sell Houston a
book; asking why would they not sell Houstion a book,
adding you're a qualified driver." Houston replied that
he thought he was blackballed. According to Houston,
Kavanaugh then told Houston that he thought the same
thing, that he had told Dennis that he ought to work
Houston anyway, and that he then informed Houston
that Dennis Pedescleaux had told Kavanaugh that if Ka-
vanaugh worked Houston anyway that he would get
more than he bargained for. According to Houston, Ka-
vanaugh added, "I ought to work you anyway." Hous-
ton testified that he urged Kavanaugh to work him
anyway, Houston telling Kavanaugh that he could
handle it, but Kavanaugh then said, "[W]ell, it wouldn't
hurt [sic] nobody, it [would] hurt you the most." Ac-
cording to Houston, Kavanaugh then informed Houston
that there were three or four other guys that he was
having trouble getting into the Union, and he told Hous-
ton that he and they ought to get together. Houston re-
called that he said he thought he did not have proof to
build a case on the Union, and Kavanaugh replied he
would work with him (as did Wright) as it (the Union)
was keeping Houston off the job. On cross-examination
Houston testified that he had the motor vehicle report
with him at this time but did not turn it in, acknowledg-
ing, however, that he had not taken a new physical.
As earlier noted, on the next day, May 24, Houston
filed the instant charge against Respondent Union. Hous-
ton also testified that he subsequently left the Baton
Rouge area on June 5, arriving at Denver, Colorado, on
June 6, at which location he was apparently at time of
recall, infra. Cross-examination revealed that in the inter-
im (before leaving for Denver) Houston had obtained
other employment as a driver with Brown-Ferris Indus-
tries (BFI) in Baton Rouge in the latter part of May
where he worked through early June, at which time he
left with a friend to go to Denver, Colorado. Houston
testified that he did not stay long enough with BFI to
find out if that job were full time, but clarified that he
was working for BFI's chemical division, which was not
under union contract.
2. The other evidence offered by the General
Counsel
a. The Company s admission of its refusal to hire
Houston for lack of union membership in Local 5
As earlier noted, the charge against Respondent Em-
ployer was filed on July 17. The said charge alleged that:
On or about May 23, 1978, it, by its officers, agents
and representatives refused to hire Joseph L. Hous-
ton because of his lack of membership in Teamsters
Local 5.
The General Counsel offered in evidence a position
statement on said charge, dated July 25, which provides
in pertinent part:"
The Company admits to the complaint's allega-
tion as set forth in the narrative account of the filed
charge. However, the Company respectfully sub-
mits that governing provisions of the applicable col-
lective bargaining agreement prohibit the complain-
ant's employment for part-time dock work or as a
full-time city driver until such time as he becomes a
member of Teamsters' Local No. 5.
By way of explanation, please be advised that
during the months of September and October, 176.
the complainant was employed by the Company on
part-time basis for a total of six (6) days at its Baton
Rouge Terminal. Pursuant to Article 3, Section (b)
of the governing collective agreement, the com-
plainant was required to become a member of
Teamsters' Local No. 5 within 30 calendar days
from his date of initial employment. Until the com-
plainant attains union membership, the Company is
precluded from considering him for further employ-
ment at its Baton Rouge facility.
I am in the process of securing record confirma-
tion of the complainant's previous employment at
the Baton Rouge Terminal. Just as soon as this doc-
umentation is received by this office, photocopies
will be forwarded for the Board's review and reten-
tion.
I Respondent FITploer (and Unionl hjected il the haisi that the
position statement as prepared early ill the inestigation Vielrlg he
parties' objection addressed to the weight to t e .Itt.lched thereto alld it
appearing that the documenlt as l offered and rl ahle for conlentctld
adniissions against intercst, tlit docu rinit u5 ;l rCcclcCd iIl Cildc'cct
,hich ruling is reaffirnlcd
675
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The Union's continued requirement that casuals be
members of the Union
Terminal Operations Manager Robert Wright, called
as a witness by the General Counsel, testified that he had
a conversation with Doug Partin, who the parties have
stipulated is an assistant business manager of Local 5 and,
at all material times herein, was an agent of Respondent
Union within the meaning of Section 2(13) of the Act.
Thus Wright testified that on January 8, 1979, union
steward Owens contacted Partin over the circumstance
that Wright was then working nonunion casuals on the
dock. Wright got on the phone with Partin. Mentioning
the Houston case (and settlement notice) Wright told
Partin that the Company was not required to have casu-
als immediately join the Union, and that under the con-
tract a casual had been required to join the Union upon
his 31st day. Partin told Wright this was wrong, that any
casual they had working was to be in the Union, and
that if it were not done he would shut the terminal
down. Wright at the hearing could not recall if there
was mention of pickets. However, the General Counsel
also offered in evidence the record of the Company-
Union conversation made by Wright as part of his regu-
lar business procedure. The same reflects there was a
threat of picketing to commence the next day, and it was
acknowledged by Wright.
c. The Company's record of the Wright-Partin
conversation
The said record thus provides:
1/8/79
Phone conversations with Doug Partin
Re: Working non union men. I told him Re Joe
Houston case I did not have to require initally [sic]
people be in union in order to put them to work.
He told me I was crazy and he was going to shut
this damn Roadway terminal down-threaten [sic]
to bring in the pickets 1/9/79. And said he had a
ruling from the committee [sic] that if we didn't
follow the contract he could shut this place down.
Threatened to put us on the hiring hall. I told him
that would be fine I would work with him anyway
I could.
He said that if I didn't run people thru the hall he
would shut this place down.
He said the contract was in effect B-4 [sic] the
law took place and therefore it was the rule.
I keep telling him I wasn't talking about the right
to work law-I was talking about the notice that
was to be posted concerning the fact that a person
did not have to belong to the union B-4 [sic] I put
them to work.
I invited them to come down-Tues [sic] AM
and discuss it and he said he would after a meeting
he had to attend at 10 am and if I had any non
union people working when he got here he would
shut this damn place down.
C. Respondent Union's Case-in-Chief
Pedescleaux testified that he has been an assistant busi-
ness agent of Local 5 for over 25 years. Pedescleaux
could not recall, but did not deny, having a prior con-
versation with Houston at the time he was an employee
of Ryder Truck Lines, Inc., about joining the Union,
though Pedescleaux did specifically deny telling Houston
on that occasion that Houston would have to join the
Union before his 30 days of employment. Pedescleaux
otherwise testified and I find that in material times his re-
sponsibilities included, inter alia, supervising union mat-
ters relating to Respondent Roadway Express.
Pedescleaux confirms that in 1978 he had received a
call from Houston in which Houston, after inquiring
whether steward Owens had earlier spoken to Pedes-
cleaux, then made request for a transfer to Local 5, and
that Pedescleaux had thereupon told Houston to come
by the hall to supply the information necessary for the
transfer. He also essentially confirmed Houston's subse-
quent visit with him at the hall
1 2 and told Houston the
secretary would handle it, and that he then brought
Houston to the secretary and requested the secretary to
record the information to transfer Houston. Although
Pedescleaux did not specifically deny he told Houston
that a transfer usually takes 3 weeks, and otherwise re-
lates that he did not know all the mechanics of transfers
as he was not regularly involved with transfers, rather
that the secretary and Local 5's secretary-treasurer (E.
G. Partin) were, he nonetheless also testified in a manner
that would depict knowledge that there was no set time
within which such a transfer regularly came through.'
3
However Pedescleaux testified that Houston had never
previously mentioned to him that Houston at that time
had an honorable withdrawal card from Local 612 or
any other local and testified that he was not present
when the secretary actually had taken down the informa-
tion from Houston. Pedescleaux testified also that Hous-
ton had not told him at that time that Houston had possi-
ble employment with Roadway Express or any other
employer.
According to Pedescleaux, it was 3 or 4 weeks later'4
that Houston did come back and inquire about the status
of his transfer. Pedescleaux at the time did not know if
Houston's transfer had come in, but did promptly check
up on it for Houston with the secretary who handles the
transfers. In the presence of Houston, the secretary told
Pedescleaux that the transfer had not come in. Accord-
ing to Pedescleaux, Houston still did not mention any-
thing to him about having a withdrawal card from Local
12 Pedescleaux's recollection was that it seemed there were 2 or 3 days
intervening between Houston's initial call and the latter's visit to the hall,
but Pedescleaux was not sure. Houston. on the other hand, was firm, his
visit to the hall was on the next business day I credit Houston's recollec-
tion of that sequence.
": Pedescleaux relates that the power was not in the requesting local,
but rather the requested local sends the transfer when it wants (which
may apparently be after it is first sent what money the man may owe),
though also testifying the latter local always responds, one way or an-
other See also Union Exh. 1, art XVIII, sec l(c)
14 Pedescleaux did not recall Houston remarking to him (e g. in a
phonle conversation as reported by Houston) that he as tired of waiting
for the transfer, and I'edescleaux denied that Houston spoke to him about
starving i the interim
676
ROADWAY EXPRESS. INC7
612, and testified that he (Pedescleaux) had not in the in-
terim looked at the transfer slip (record) to see what the
secretary had put on Houston's transfer request. Pedes-
cleaux testified (on cross-examination) more pointedly
that he did not become aware that Houston had shown a
withdrawal card to the secretary until after the charges
were brought against the Union. He also testified that he
had never had prior occasion to check on anyone's trans-
fer, as he did not handle them. According to Pedes-
cleaux, he did tell Houston at that point that, since Hous-
ton had (first) transferred to New Orleans (Local 270),
maybe New Orleans had not transferred Houston to Bir-
mingham (Local 612) and that Houston had then replied
he was going to check with New Orleans. Pedescleuax
testified that was all there was to their conversation, that
he has not seen Houston since, and that Houston had not
at that time mentioned anything about possible employ-
ment with Roadway Express or any other employer. '5
(On rebuttal Houston testified that he did not tell Pedes-
cleaux that he was going to check with New Orleans, as-
serting that New Orleans had nothing to do with his
transfer and pointing out that his Teamsters card showed
he was transferred to Local 612 Birmingham (a fact I
note clearly appearing of record, see G.C. Exh. 5).
Pedscleaux has otherwise categorically denied ever
having a conversation with Kavanaugh, Wright, or
anyone from Roadway Express about Houston. Pedes-
cleaux also specifically denied that he ever indicated to
Houston or anyone else that Houston could not go to
work for Roadway Express because he did not have
union affiliation. Pedescleaux also testified at one point
(contrary to Houston's report of what Kavanaugh said)
that Houston could have bought a book or joined the
Union as a new member, paying initiation fees, etc., but
that Houston had not asked for that, rather, that all
Houston had asked for was a transfer. In that connec-
tion, Pedescleaux testified also, that, if Houston were
paid up at another Local (e.g., 612), all Houston would
have had to pay to transfer to Local 5 would be a small
fee of 25 to 50 cents.' 6 It is observed that it was Pedes-
cleaux's testimony that Houston, if on withdrawal from
Local 612 (as he was), should have put his withdrawal
card on file with Local 5, but that he did not. As earlier
noted there is documentary compelling direction (in the
constitution, see Union Exh. , art. XVIII, sec. 6(d), and
available to Houston on his withdrawal card), that the
withdrawal card is to be deposited with the Local Union
' However, Pedescleaux testified that Houston may have inquired
about a (work) permit, and that he told Houston that they did not have
permits. Furthermore, subsequent testimony of Pedescleaux does reveal
that Pedescleaux did acknowledge receiving a call from Houston
16 It would appear, however, that, if on withdrawal as he was. Hous-
ton would have had to also pay the current month's dues to l..ocal 612 on
deposit of withdrawal card, see Union Exh. I. art. XVIII, sec 5(h); that a
return to membership appears only to be provided for by redeposit. id..,
sec. 6(d); and that a local is prohibited from charging an initiation fee on
deposit ofa withdrawal card, id., Sec. 5(f) In the latter connection I note
that Pedescleaux was emphatic that he did not talk to Houston about
buying a new book, Houston agreed and there is no evidence to the con-
trary. I credit Pedescleaux on the latter point Finally, I observe that his
testimony on redirect appeared to rectify ay earlier misindication that
such was possible, in that he testified n redirect that it was illegal under
the constitution to be on withdrawal for one union and to buy a hook out
of another local.
"by which it was issued .. .," thus seemingly I.ocal
612 in Houston's case, and that regulations governing
transfer compatibly refer to transfer of membership from
one local to another. See article XVIII, section (a). The
record is not definitive whether Pedescleaux's testimony
in regard to a deposit of Houston's withdrawal card with
Local 5 was actually only to be a preliminary act to that
Local's (service of) forewarding of same to the issuing
local along with the appropriate request for transfer of
membership and certification of work availability as oth-
erwise clearly provided for. If not misunderstanding by
Pedescleaux, but otherwise as above last indicated it is
clear, in any event, that such was not done by Local 5.
Pedescleaux aside, there is no question that those directly
involved in processing Houston's request were aware of
his current withdrawal, as the Union's approved copy of
the transfer request records the fact that Houston was on
withdrawal. The record is equally clear that Local 5 did
not make an attempt to forward Houston's withdrawal
card as a service. It would follow from Pedescleaux's as-
serted lack of knowledge that Houston was on av ith-
drawal that he did not instruct Houston to do so, nor is
there any evidence that anyone else with Local 5 did so.
Pedescleaux testified otherwise that to his knowledge
there was nothing in the contract, the International's
constitution, or the Local's bylaws that would prevent
Houston from going to work with Roadway Express.
though adding, other than that Houston or anyone else,
who is on withdrawal, is supposed to put his withdrawal
card on file with the local.
Pedescleaux also testified that Local 5 does not keep a
list of employees available for referral and seldom re-
ceives calls from employers in regard to the hiring of
people on referral. Pedescleaux did testify that the lllion
does make up a list of individuals (e.g., after lavoff),
whether union or nonunion, together with phone num-
bers, for prospective casual or full-time employment. The
list is then sent out to all freight companies under con-
tract. However, the individual company does the select-
ing of the individual on the list. Pedescleaux testified that
Houston never requested to be put on such a list. Final-
ly, Pedescleaux denied that Houston ever asked him to
take any action to see that he got employment with
Roadway Express or any other employer in 1978. 7
Douglas W. Partin, assistant business manager, has
been employed by Local 5 off and on for the last 20
years, and for the last 3 years as an assistant business
agent. Partin confirmed having a conversation with
Wright in January 1979, and that it was possible he
spoke to Wright after first speaking to steward Owens.
Partin testified that he had sent Wright a list of approxi-
mately 70 casual employees who either were on layoff
from other terminals or were working as casuals. A
Roadway ad appeared in the paper which he assumed
Wright had run. Partin told Wright that they had a list
of casual employees, who were good employees that had
worked for other freight lines, naming Red Ball and
Ryder Truck Lines, and told Wright that he felt that
Wright should give them a chance. According to Partin,
'' In cornmpalris,n, Houston teslfied talt I'dcs,:laux lnecer told him
about such :I list from sill he coulld he hired h Roadv ay
h77
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wright replied that he did not have to use the list that
Partin had sent him because the Louisiana right-to-work
law was in effect now, and that he could hire anybody
he wanted to at any time. Partin denied that he told
Wright that any employee, whether casual or full time,
had to be a union member before he or she could he
hired at all. He recalled that Wright said they did not
have to join the Union after they had been there 30 days.
Partin responded that they did, because the contract was
in effect before the right-to-work law was passed.
Wright asked for a copy of the law and Partin mailed
one to him. Partin denied that there was any mention of
pickets or that he threatened to shut the place down and
he denied anything was said by Wright or him about
Houston in that conversation, adding that he never heard
of Joseph Houston until the occasion when Pedescleaux
(who shares an office with him) was interviewed by a
Board agent on the matter.
Partin denied there was any such thing as a committee
in the Local that could authorize pickets if the contract
is not followed. On cross-examination he candidly ac-
knowledged that it was his view that a union's strength
is weakened by someone working at a company prior to
being a union member and that it was his view it was to
employees' advantage to join the Union even before the
30 days was up.
Respondent Union also called Wright as its witness.
Wright testified that on the occasion when Houston
came to the Baton Rouge terminal to fill out an applica-
tion the only conversation he heard involving Houston
was to the effect that Houston said he had worked at the
Birmingham terminal as a line haul driver. Wright reaf-
firmed that the reason that Houston was not hired was
that: He did not properly complete his application, in
that he was supposed to obtain: (a) the DOT physical,
(b) a driving record from the Department of Public
Safety, and (c) a statement from the Criminal Records
Department of Baton Rouge stating whether or not he
had any type of criminal record. Wright also testified
that Houston went to work for BFI shortly after he had
filled out an initial job seeker and application and that he
did not renew the job seeker as required. Wright stated
that the fact he might not have had union membership,
or not have good standing with the Union, did not enter
in any way into the decision. Steward Owens, who
Wright testified earlier was on the phone line with him
and Partin (in January 1979), did not testify.
Wright confirmed that at the time Houston presented
his initial application Wright reviewed it, said good, and
then thought Houston was a good prospect. However,
Wright did not recall any mention of Houston not
having to fill out any other paperwork by virtue of
having worked for the Company before. To the con-
trary, Wright testified that, when a man comes from one
terminal to another in a different capacity (e.g., as Hous-
ton from Birmingham line haul to a Baton Rouge local
pickup and delivery operation), the applicant must sign
an employment register and fill out a new application
and a job seeker whether they are on layoff status
(which they may retain) or otherwise, and the applicant
must resign. Wright testified that a physical is good for 2
years and that, if the employee worked for Roadway
previously, the driver would not be required to take a
new physical while the prior one is current. However,
Wright thought Houston's was very close to being ex-
pired. Significantly, Wright testified, however, that if his
physical had been good and he had the other required
documents it would have been very possible that Hous-
ton would have been put to work if he had good refer-
ences on his previous job. Wright found out about Hous-
ton's employment by BFI around the end of May and, in
any event, after May 23.
D. Respondent Employer's Case-in-Chief
William R. King, employed by Respondent Employer
for 10 years, became Baton Rouge terminal manager in
December. Prior to that time, King was Respondent's
terminal manager at Hattiesburg, Mississippi, for 13
months and prior thereto Respondent's terminal manager
at Jackson, Mississippi, for 14 months. King testified as
to the existence of a company policy (effective every-
where) of having certain open application and hiring
hours, notice of which is posted at the given terminal as
well as contained in a certain job seeker ledger book
maintained to conform to affirmative action EEOC stan-
dards. According to King, after having signed the given
terminal ledger book, an individual prospective applicant
must then fill out a certain job seeker form which re-
cords the individual's interest in employment. If the in-
formation supplied by the individual on the job seeker
form appears to be satisfactory, the individual then may
fill out an application form, and is asked to sign a PR-15
(reference) release. The applicant must also supply the
Employer with a physical examination and a traffic
report and criminal check (with costs to be borne by ap-
plicant). At time of initial filling out of the job seeker
form, the individual is also informed (both orally and by
the form) that the job seeker form must itself be renewed
within 15 days to be kept active. According to King, if
an individual fails to renew a job seeker form, without
additional notice beyond that initially given, the form is
sent to central filing in Respondent's Akron, Ohio, gen-
eral office, and the applicant is disqualified from further
consideration for the positions for which he had previ-
ously applied. King also testified that, since he has been
manager of Respondent Employer's Baton Rouge termi-
nal, the Company has never required individuals to be
members of the Union in order to be hired. Of course,
since King arrived in December, it is immediately evi-
dent that King was neither present nor in charge of the
Baton Rouge terminal at the time of Respondent Em-
ployer's alleged refusal to employ Houston for discrimi-
natory reasons on May 23. The present operations man-
ager, Robert Wright, was.
Wright testified that before becoming operations man-
ager at Respondent Employer's Baton Rouge terminal on
May I he had worked for the Employer for 2 years at its
New Orleans terminal as a dock foreman. He testified
that since becoming operations manager at Baton Rouge
on May I he was in charge of and ran the complete op-
eration, including the dock operations (but excluding
sales), and was in charge of employment (including
hiring and firing), though doing so under the supervision
678
ROADWAY EXPRESS, INC.
of Terminal Manager Kavanaugh. There is no question
that during material times Wright was a supervisor and
agent of Respondent under the applicable provisions of
the Act, and I have no doubt, on the facts as consistently
revealed in this record, that Danny, who had occupied
the same position of operations manager under Kavan-
augh earlier, was such before him.
At time of Wright's arrival, as noted, John Kavanaugh
was the Baton Rouge terminal manager. At hearing,
Wright testified that Kavanaugh was no longer em-
ployed by the Company, that he had been terminated,
and that Kavanaugh was presently employed by another
freight company in Dayton, Ohio. Kavanaugh did not
testify in this proceeding. However, Respondent estab-
lished that it had subpenaed and affected a domiciliary
service of Kavanaugh at his home in Baton Rouge, but
that it subsequently learned that Kavanaugh was in
Dayton, Ohio, and it represented at the time of the hear-
ing that Kavanaugh was in Portland, Oregon, and very
reluctant to come to the hearing because of problems
with his present employer. Respondent Employer stated
it would proceed without him rather than seek to en-
force the subpena to compel attendance. However, Re-
spondent has requested that an adverse inference not be
drawn in this proceeding from Kavanaugh's nonappear-
ance as its witness. The General Counsel at hearing and
in brief affirmatively calls for such an adverse inference
in view of the Employer's failure to call Kavanaugh as
its witness to refute Houston's testimony in regard to ma-
terial conversations had with Kavanaugh while the latter
was employed as Respondent's Baton Rouge terminal
manager. Respondent elected to rely on the law in sup-
port of its position that an adverse inference should not
be drawn in this instance. Respondent Union, in contrast,
has urged an adverse inference should be drawn, but fa-
vorable to Respondent Union's position; that is, that in
the light of Pedescleaux's categorical denial of having
had any conversation with Kavanaugh in regard to
Houston's employment it should be inferred from the
nonappearance of Kavanaugh as a witness that there was
none between Pedescleaux and him.
Wright confirmed that in material times Roadway did
its hiring on Saturdays between 8 a.m. and noon only.
Wright further confirmed that within the Roadway orga-
nization, when an individual comes to apply for a job
they are hired initially as a casual on a part-time basis,
testifying that casuals have no guaranteed amount of pay
or certain hours, and that employment may be for I day
or 5, depending on the workload. Wright relates that
when a need develops for a regular employee, the Com-
pany will hire the best from the casuals who have been
working for them, regardless of how long the selected
casual may have been in service. According to Wright,
seniority is acquired only when and if the casual be-
comes regular. 18
i' The contract provides in art. 3. sec 2, in seemingly corroborative
parts as follows:
A new employee shall work under the provisions of this Agree-
ment but shall be employed only on a thirty-day trial basis, during
which period he may he discharged without further recourse: pro-
vided, however, that the Employer may not discharge or discipline
for the purpose of evading this Agreement or discriminating against
Wright also testified that there is transfer of drivers
between terminals with seniority only if there is a compa-
ny change of operations, at which time employment with
seniority is offered to a particular locality, either a new
terminal, or one where they are opening up new operat-
ing rights. If there has been no company transfer of op-
erations, and an employee desires to transfer from one
terminal to another, he must fill out a new application
and begin work at the latter as a casual. Wright (cor-
roborated by King and otherwise by the record) testified
that the individual does not carry his prior seniority to
that new terminal.' 9
Wright testified that it does not make any difference to
Roadway whether an applicant for casual employment is
union or nonunion, confirming, however, that under the
old contract the casual employee (also) had to join the
Union on or before his 31st day. (Wright testified addi-
tionally that following the termination of the old agree-
ment on March 31, 1979, the latter requirement no
longer applies because of the then applicability of the
current Louisiana right-to-work law.)
Wright relates that any applicant must first fill out a
job seeker form which Houston did on May 20. He con-
firmed the individual applicant is also promptly advised
of related job application expenses which he must under-
take, said expenses being approximately $55 to $60 in
total ($50 of which is for a required physical). The job
seeker form's purpose (according to Wright) is to advise
the Company of an applicant's interest in employment,
the position sought by the individual, and certain person-
al matters, such as whether the applicant is working, has
been previously discharged, has a felony conviction, etc.
(Houston's job seeker reflects that Houston was seeking
part-time work in the city driver and dock positions.)
The form itself otherwise provides that it will be kept on
file for the stated positions for 15 days subject to interim
renewal. Wright testified (without contradiction) that
Houston did not seek to renew his job seeker. (However,
I credit Houston that he did not subsequently tell any
Roadway officials that he was going to go to work for
BFI.) 20
Union members. After thirty days, the employee shall be placed on
the regular seniority list.
Any employee hired as a casual or part-time worker shall not
become a seniority employee under these provisions where it has
been agreed by Employer and Union that he was hired for casual or
part-time work The words "casual" or "part-time" as used herein
are meant to cover situations such as replacement for absenteeism
and vacations.
Any employee hired as a casual or part-time worker shall not
become a seniority employee until he meets the requirements of the
appropriate Supplemental Agreement under which he is employed
O1 Wright also testified that the Company does not transfer a line haul
application to another terminal for a casual application, and further that
since Houston was still in layoff status at Birmingham the latter would
not have sent his application to Baton Rouge However Wright ac-
knowledged that he did still have Houston's prior employment file from
1976 Wright otherwise testified that once a man quits the old application
is no good, though conceding a DOT physical contained in the file
would remain good
2 Wright testified (generally) that he became aware that Houston had
subsequently obtained employment at BFI by word of mouth and that he
(onrinued
679
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wright testified that he took Houston's application on
May 20, as well as obtaining on that day a (reference)
release, and that he followed a checklist of things which
Houston had to have covering essentially the matters
identified by King, supra, viz, a physical, a traffic record
release from the Department of Public Safety, and a
police record check from the sheriff. (On rebuttal Hous-
ton denied that Wright, or Kavanaugh, had visibly con-
sulted any check list.)
Wright further testified that to the best of his knowl-
edge existing company policy was that it did not make
any difference whether applicants or casuals were in the
Union or not, but revealingly that Kavanaugh did not
tell him why he (Kavanaugh) did not hire Houston,
though also testifying that he (Wright) did not tell Hous-
ton that Respondent Employer would not hire Houston
unless he had a union card or book from Local 5, nor
did Kavanaugh to his knowledge. Rather Wright testi-
fied that Houston was not hired by Respondent Employ-
er because Houston did not complete his application by
obtaining the DOT physical nor provide the required
driving (traffic) record from the Department of Public
Safety or the statement from the Criminal Records De-
partment of Baton Rouge (police check), and because
Houston did not renew his job seeker form.2 '
In regard to the requirement of having a new physical,
in comparison with Houston's initial testimony that Ka-
vanaugh told him on this occasion that he would have to
get a new physical because his Alabama card was just
about up on its 2 years, significantly Wright as well testi-
fied, initially, that his recollection was that Houston's
physical (with Roadway) was close to being expired at
the time he applied, and subsequently that he had told
Houston he would have to get a physical as soon as the
one that he had expired, and that if Houston had pro-
vided the other records and his references were good it
is very possible Houston would have been put to work.
On questioning, Wright subsequently acknowledged that
Houston's application reflects, under date of last phys-
ical, an entry of "5-8-76." As it is unquestioned that all
were aware the DOT physicals were good for 2 years
(and Wright so testified) such entry would have consti-
tuted immediate notification that that physical had al-
ready expired, a fact then readily acknowledged by
Wright. Wright otherwise testified that the physical that
they require is one to be performed by Respondent Em-
ployer's doctor.
Preliminary Related Evidence Considerations
On rebuttal Houston denied that he was told that he
needed a new physical before he could be considered for
had no recollection of Hlouslon ever seeking to renew his job seeker. As
to the former Wright ackinowledged that he had become aware of Hous-
ton's BFI employment after May 23, but in earlier testimony he had also
seemed to recall Houston visiting the terminal oil the Saturday following
Wright's application filing. thus May 27, and at one point indicated Hous-
toll had stated he was employed by BFI, later suggesting it might have
been said to Kavanaugh. On rebuttal Houston testified that he had not
told anyone at Roadway that he was going to go work at BFI I credit
Houston on this point
21 A driver applicant is required to take a DOT driving examination,
as well as a conipan) road test later; neither of which is urged by anty
part) as being a material factor bearing on the issue herein.
employment, testifying that Kavanaugh had told him he
thought he could work Houston under his old physical
and would get him in as soon as possible. Houston also
testified, I find credibly, that he had initially made a mis-
take on his application, that he had at the time actually
taken a more recent DOT physical on May 8, 1978,
though for another employer, and that he had (later) told
Kavanaugh that he had recently been cleared by another
company. However, Houston acknowledged that Kavan-
augh told Houston that he would (still) have to take an-
other physical for Roadway later on, and that he would
get him in to take a physical if he needed it as quickly as
he could. On rebuttal Wright recalled that when he told
Houston that he had to get a physical Houston had men-
tioned to him that he had a physical but did not mention
the date, and as far as Wright knew it was the one Hous-
ton had shown issued in 1976. However, Wright further
testified that it was the Company's policy that if a driver
applicant came in with a DOT physical from another
company and was one which was not given by Respon-
dent Employer's doctor the physical was good for 15
days, at which point the individual had to get a new
physical given by Respondent Employer's doctor. I am
wholly persuaded by the weight of the evidence bearing
on this matter of the physical, and I conclude and find
that the immediate securing of a Roadway physical was
not a condition precedent to Houston's employment as of
May 20 nor more pointedly was its absence a reason
(contributing or otherwise) for his nonemployment as of
May 23. However, Wright testified that the first casual
hired after Houston's application was employee Louis
Briggs who was not hired until the second week of June.
(It is, however, additionally observed, in passing, that
Briggs appeared on a list of names supplied by the
Union, dated April 26, and that Wright understood
Briggs was a member of the Union at the time of em-
ployment.)
Houston also testified on rebuttal that he had already
obtained his driver's (traffic) record and had it in his
pocket when he returned on Tuesday, May 23, in pursuit
of employment. However, when Kavanaugh did not hire
him (under the alleged discriminatory circumstances
Houston relates above) he just kept it in his pocket. Simi-
larly, while acknowledging he was aware of the need to
renew his job seeker form with Employer, having filled
out one on two earlier occasions (and been promptly em-
ployed), Houston testified that after the May 23 conver-
sation with Kavanaugh (and his own filing of the instant
charge against the Union on May 24) he did not think he
was going to be hired and did not thereafter think about
renewing his job seeker. However, according to Hous-
ton, neither Kavanaugh nor Wright had told him he had
to also get a criminal record check. It was Houston's un-
derstanding having previously worked regularly for
Roadway and passed security (and being on layoff and
last worked for Respondent-Employer in February-
March 1977) that it was not necessary. Houston testified
that all Kavanaugh had told him (on May 20) was to get
the driver's form, and that if he needed a physical Ka-
vanaugh would get Houston in to take the physical. Any
further consideration of the evidence in regard to job
680
ROADWAY EXPRESS, INC.
seeker renewal or in regard to possible misunderstanding
in regard to an actual necessity of an update on criminal
record clearance, I conclude and find, is obviated by
virtue of the effect of Wright's additional and candid tes-
timony of his procedure (I find a practice) at the Baton
Rouge terminal that, if an individual applicant fails to
renew his job seeker, either he or Kavanaugh would call
the applicant on the phone and inquire if the applicant
wanted his job seeker renewed, and as well request any
necessary but unsupplied material, provided the applicant
has not been earlier disqualified. Although Wright testi-
fied he did not call Houston and did not know whether
Kavanaugh had, Houston testified credibly that neither
had called him about such matters. Wright could offer
no reason why Houston was not called in this instance.
Wright's further relation that Houston's lack of union
membership in Local 5 was not a factor in Houston's
nonemployment was not without its own contraindica-
tion in certain testimony of Wright. Thus, Wright testi-
fied that Kavanaugh had told him that Pedescleaux
would not give Houston a book, though not during con-
versation with Houston on May 23, but, as recalled by
Wright, some time later with Houston not present.
Wright also confirmed Houston to the extent that Wright
testified that during the Kavanaugh-Houston conversa-
tion he had heard Houston say to Kavanaugh that he
(Houston) felt like he had been blackballed by the Union.
While I credit Wright's testimony that on that occasion
he personally did not offer any reply, I further find that
his nonrecollection as to Kavanaugh's reply was simply
less than convincing. Nor is Wright's nonrecollection of
any Kavanaugh remarks in regard to prospective difficul-
ties with the Union if he hired Houston significant in the
light of his other testimony that he was in and out of
that conversation, with possible exception of his testimo-
ny that Kavanaugh did not say to Houston that he (Ka-
vanaugh) or the Company would try to work with
Houston to prove a case against the Union in his pres-
ence. I do note that otherwise Houston's testimony as to
the remarks of Kavanaugh stand, on this record, essen-
tially uncontradicted and are clearly plausible in total
context.
Finally Wright testified that the Company did not feel
that they had to hire only individuals who were in the
Union as casuals and that a second casual hired by Re-
spondent was an individual who had applied before
Houston and was an individual not on the Union's list
and as to whose union affiliation Wright was unaware at
the time of hire (date unspecified). In that connection
King testified that under the contract, unless a referral or
hiring hall is in effect, the Company gives the Union
equal opportunity to provide referrals for employment.
Wright testified that his procedure in hiring casuals was
that he checks out the individuals on the Union's sup-
plied list and inquires of the given individual's availabil-
ity and willingness to come in and file an application
with Respondent Employer, and that he did the same
with people who come in off the street as well as con-
tacting local minority agencies and state employment of-
fices and placing ads in newspapers for applicants. How-
ever Wright also testified candidly that there were nu-
merous calls received in 1978 from the Union relative to
the Company's employment of people that were not in
the Union, and that his reply on such occasions to the
Union was that they (casuals) had not gone past their 31-
day working span. Wright testified that he did not know'
if the total number of days that Houston had worked as
a casual at Baton Rouge was under 31 as there were no
records dating back to 1976 on Houston that he saw.
Houston testified on rebuttal affirmatively that he had
not worked 31 days as a casual at Baton Rouge and as
noted this record reveals he had worked but II days
with his last period of employment only for 2 days in
February-March 1977, thus over a year prior. I note that
even King who arrived later in December 1978 con-
firmed that he was aware the Union was pressing the
Company to hire only individuals that were union mem-
bers as casuals and other employees and confirmed as
well that the institution of a hiring hall at Baton Rouge
was threatened by the Union on one occasion.
Analysis, Conclusions, and Findings
I find that the weight of the credible evidence present-
ed by the General Counsel has wholly convinced me to
the latter's contention that commencing May 23 Respon-
dent Employer discriminatorily refused employment to
Joseph L. Houston because of Houston's lack of mem-
bership in Local 5. The unrefuted facts marshaled above
compellingly speak to that conclusion.
Thus, the record has revealed that Houston was un-
questionably a qualified driver who had performed years
of prior and proven satisfactory service as a regular full-
time line haul driver while employed at Respondent Em-
ployer's Birmingham, Alabama, terminal before his layoff
in 1976, and that he had thereafter performed satisfacto-
rily similarly for Respondent Employer at its Baton
Rouge terminal as a casual employee in 1976 and again
in early 1977 though only for a brief 2-day period, while
at that time extending himself to assist Respondent Em-
ployer's (then) Terminal Manager Allen at the latter's re-
quest during a problem time.
In 1977, and more pointedly and significantly in early
1978, Respondent Employer's Baton Rouge Terminal
Operations Manager Danny revealed Respondent's con-
tinued interest in the reemployment of Houston as a
casual, and eventually as a full-time employee, clearly
conditioned, however, on Houston's first getting straight-
ened out with the Union. The latter condition meant to
Houston his becoming a member of Local 5, an act that
Houston clearly was initially reluctant to do. However,
when work (or money) at his current employer became
apparently less desirable in 1978, Houston again became
interested in pursuing work opportunity with Respon-
dent Employer. By that time or in assisting a friend to
make application, Houston had become more amenable
to taking the conditional steps made necessary by Re-
spondent's urging of his first getting straightened out
with the Union, which in Houston's circumstances was
to effect transfer of his membership to Local 5. On this
record I thus have no doubt or hesitancy in concluding
that it was at the initial urgings of officials of Respon-
dent that Houston first embarked on his effort to secure
a transfer of his (withdrawn) membership from Local
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
612 to Local 5. This is not only evidenced in Respondent
Employer's operations manager's first urging in Febru-
ary-March 1977 but also is evidenced in the two such
continued urgings in the material period of March 1978,
as to which factual account Houston is both essentially
corroborated by White and has been otherwise unrefuted
by any management officials of Respondent.
I am thus persuaded and I find that by the end of
March Houston on two occasions had actively sought
employment with Respondent Employer; that Respon-
dent Employer's official on both occasions desired to
employ him, but on each occasion conditioned same on
Houston's first getting straightened out with Local 5; and
that Houston thereafter actively engaged in a 5-6 week
effort to get straightened out with the Union by attempt-
ing to have a membership transfer to Local 5, a result
that he had been informed at the time (I find), by both
Pedescleaux and the union secretary handling the trans-
fer, would take but 3 weeks. I am as well convinced and
find that the same antecedent requirements continued to
exist as between Respondent Employer's new terminal
officials (Kavanaugh and Wright) and Houston on Satur-
day, May 20, when Houston finally filed a formal appli-
cation for employment and was then both regarded as a
good prospect and told (promised) he would be em-
ployed the following week after Kavanaugh checked out
his report that the Union had said his employment was
okay.
Houston was not offered any such employment when
he later returned to Respondent Employer's terminal
seeking the employment on the following Tuesday, May
23. Instead Houston's uncontradicted testimony has re-
vealed that he was told on that occasion by Terminal
Manager Kavanaugh that Kavanaugh had been in com-
munication with the Union and that the Union (Pedes-
cleaux) would not sell or give him a book, that Terminal
Manager Kavanaugh had then agreed with Houston's
own assessment that Houston was being blackballed by
Local 5, and that he was further informed by Kavanaugh
that, when Kavanaugh had stated to the Union that he
ought to hire Houston anyway, Kavanaugh was threat-
ened that if he did so he would get more than he bar-
gained for, and subsequently Kavanaugh did not hire
him.
Respondent argues that Houston should not be cred-
ited. I do not agree. Wholly aside from any consideration
of the propriety of drawing an adverse inference against
Respondent Employer from Kavanaugh's nonappearance
as a witness, that Kavanaugh's testimony would not have
been supportive of Respondent's position, Houston's tes-
timony in the above respects is observed to be not only
plausible in context, credibly given, and essentially not
shaken in these matters on cross-examination; but also
stands, with close analysis of the testimony of Wright as
to his limited awareness of the entire Kavanaugh-Hous-
ton conversation, essentially uncontradicted in the above
particulars, and thus unrefuted by anyone in the above
respects. I credit Houston.
This is not, however, to say that the drawing of an in-
ference in the above circumstances, as urged by the Gen-
eral Counsel, is not also warranted and further support-
ive of the factual conclusions reached therein. To the
contrary, I additionally do conclude, particularly in the
light of Respondent Employer's witness Wright's limited
participation in such critical conversation, that an ad-
verse inference does lie from Respondent Employer's
failure to produce Kavanaugh, who was at the time its
agent and the main conversant, viz, that Kavanaugh's tes-
timony would not have been favorable to or supportive
of its position. I thus draw the inference and find it but
further supportive of Houston's otherwise credible ac-
count of being denied employment because of his lack of
membership in Local 5.22 Contrary to Respondent Em-
ployer's further urging that it had never actually refused
Houston employment, I find the fact that Houston was
to be denied employment by Respondent Employer's ter-
minal manager, Kavanaugh, thereafter while that unful-
filled condition (nonmembership in Local 5) existed, is
convincingly made clear from Kavanaugh's suggestion,
but then avoidance and rejection of Houston's urging,
that Kavanaugh indeed employ Houston anyway.
Respondent Employer had advanced at the hearing
that the real reason Houston was not employed by Re-
spondent was because he failed to complete his applica-
tion by failing to obtain a physical, a traffic record, and a
police check. Respondent Employer argues for discredit
of Houston in part of the required physical. However I
have concluded on close analysis that there is no more
confusion or inconsistency in this record on that particu-
lar matter on Houston's part than on Wright's part
which, in my view, is not only to be explained in terms
of acceptable clarifications by both these witnesses on
that matter in the light of other record evidence, but also
even more significantly lends only further support that
that particular item was not indeed an original reason for
Houston's nonemployment anymore than Houston's fail-
ure to present to Respondent the traffic record that was
obtained and was in Houston's pocket at the time was.
The short of it is that, contrary to urging of Respondent,
I am fully convinced and satisfied that there was an ex-
isting practice of a followup on applications which was
not made in Houston's case by Wright or Kavanaugh
without any convincing reason therefor being offered,
which itself is but an additional circumstance eloquently
22 "The production of weak evidence when strong is available can
lead only to the conclusion that the strong would have been adverse."
Interstate Circuit, Inc., el al. v. United States, 306 U.S. 208, 220 (1939).
For related applications see Keller Manufacturing Company. Inc., 237
NLRB 712, 717, 719, and 727 (1978). Even if the witness who is material
to Respondent's defense is no longer subject to company control, the wit-
ness is subject to equivalent subpena process, and in law within the
power of the company to produce, L. B. Foster Company, 168 NLRB 83,
86 (1967). Kavanaugh was hardly a disinterested witness whom the Gen-
eral Counsel might be viewed as having wrongfully failed to call. See
and compare NL.R.B. v. Ford Radio & Mica Corporation, 258 F2d 457,
463 (2d Cir. 1958). Rather with the General Counsel's prima facie show-
ing the burden of producing evidence had shifted, raising an unfavorable
inference from Respondent Employer's nonproduction of the superior
evidence (Kavanaugh). Insufficient justification for refusing to draw such
inference is presented, even assuming Respondent Employer (as asserted
in brief) did not learn of Kavanaugh's intent not to honor the subpena
process until the evening before the hearing, where the matter had long
been scheduled for hearing, it had known that Kavanaugh would be a
likely material witness in defense, and no continuance was in fact sought.
See Wodville Plant, Industrial Products Division. Division of Livingston
Shipbuilding Company, a Delaware Corporation, 244 NLRB 119, fn. I
(1979) (where no continuance was requested).
682
ROADWAY EXPRESS, INC
speaking to the presence of the other operative reason
for Houston's nonemployment at the time, an unlawful
reason all too clear on this record.
Finally, the urged admission in the Employer's stated
position of July 25, 1978, in initial response to the charge
brought against it by Houston, as well as the expressed
understanding of Wright of that case's major element as
expressed by Wright to Partin in January 1979, not only
acknowledges, but also confirms beyond the real ques-
tioning that lack of membership in Local 5 was the
reason, indeed the only reason, for Houston's nonem-
ployment and that Respondent Employer's present urg-
ings are but afterthoughts which reveal additional uncon-
vincing vacillation of a stated reason for its earlier
action. 23 I am thus convinced and I find that, commenc-
ing May 23, Respondent Employer refused to employ
Joseph L. Houston because of his lack of membership in
Local 5, and that by such conduct Respondent Employer
has violated Section 8(a)(1) and (3) of the Act. Chapin &
Chapin, Inc., 213 NLRB 250 (1974).
The complaint alleges and the General Counsel argues
that Respondent Union has also violated Section
8(b)(l)(A) and (2) in that on or about May 23, 1978, Re-
spondent Union by its officer and agent Dennis Pedes-
cleaux attempted to cause and did cause Respondent Em-
ployer to deny employment to Houston because of Hous-
ton's lack of membership in Respondent Union. Respon-
dent Union has contracontended that the complaint
should be dismissed because the Union never communi-
cated to Houston or Respondent Employer that Houston
could not be hired because of his nonmembership or lack
of good standing in the Union and because Houston was
not hired by Respondent Employer because of Houston's
own failure to comply with Respondent Employer's pre-
hiring requisites. For reasons earlier related I find the
latter defense is without merit. As to the former, Respon-
dent Union relies on Local Union 481, International
Brotherhood of Electrical Workers, AFL-CIO (Amick Elec-
tric Company), 196 NLRB 104 (1972); Yellow Freight
System, Inc., 197 NLRB 979 (1972); and General Drivers,
Warehousemen and Helpers Local Union No. 968, etc. (M.
W Kellogg Construction Company), 196 NLRB 817
(1972).
Essentially it is Respondent Union's contention that
the only reason Houston's membership was not trans-
ferred was the failure of Local 612 to supply Local 5
with the required information, and that there is simply
no clear and convincing evidence of record that Local 5
did anything to prevent Respondent Employer from
hiring Houston. In that connection Respondent Union
relies heavily, in contrast with Houston's testimony as to
the remarks of Kavanaugh, on Pedescleaux's denial of
23 The reason advanced originally in Respondent's position paper (but
not herein) is clearly without merit. Houston's last period of employment
with Respondent Employer had ended after only 2 days of casual em-
ployment over a year earlier and during which time Houston was em-
ployed full time elsewhere and, prior to which time (in 1976). Houston
had effected a voluntary withdrawal from Local 612 "in goodstanding."
Thus the contention based on contract would be without merit. Yello,
Cab Company, 148 NLRB 620, 624 (1964); and see Furniture and Pano
Moving. Furniture Store Drivers, Helpers. Warehousemen and Packers Local
#82. etc. (Arlington Storage, Inc.. and Henr, F Owens. Inc.). 210 NLRH
838, 841 (1974)
ever having had a conversation with Kavanaugh about
Houston and Wright's claimed support that nonmember-
ship in Local 5 was not a factor in Houston's failure to
be employed by Respondent Employer. As earlier found
however, for reasons previously stated, I have not found
Wright's assertions as to the latter persuasive, but rather
have found that Respondent Employer did refuse em-
ployment to Houston because of his lack of membership
in Local 5. Nonetheless, the allegations of violation of
Section 8(b)(1)(A) and (2) by Local 5 rests on their own
elements of proof and require somewhat different factual
pattern analysis. Before passing on to a consideration of
same, I do note that the General Counsel has made an
additional contention in the brief that assuming arguendo
that the finding is not made that Kavanaugh was actually
illegally restrained by the Union from employing Hous-
ton that it be alternatively found that Respondent Union
has violated Section 8(b)(1)(A) and (2) of the Act by op-
erating an exclusive hiring arrangement in a discrimina-
tory manner. However, operation of a discriminatory ex-
clusive hiring arrangement was not an allegation of the
complaint. Neither was it, in my view, a theory of viola-
tion adequately advanced by the General Counsel at the
hearing nor one deemed fully litigated at the hearing.
Accordingly I reject such contention and the arguments
based thereon and shall provide them no further consid-
eration in reaching a decision herein. I shall consider
fully all evidence advanced which is probative of the
violation alleged.
Initial consideration is made of the General Counsel's
offered evidence that sometime in 1967 after Houston
was recently employed by Ryder Truck Lines, Inc., Pe-
descleaux told him that he would have to join the Union
before 30 days of employment (denied by Pedescleaux at
least as to the latter particular). However, I need not re-
solve any conflict therein as in my view even if consid-
ered as the General Counsel presents as (remotely) rel-
evant it is so stale as to provide little if any probative
persuasion on the material issue before me which has oc-
curred over 10 years later. Considerably more signifi-
cant, however, is the undenied testimony of Houston
that, on the occasions of working as a casual for Respon-
dent Employer at its Baton Rouge terminal in late 1976,
Local 5's union steward repeatedly told Houston that he
would have to join Local 5. However, there is no show-
ing made on this record that anything came of Houston's
failure to act on steward Owen's urgings at the time.
The case comes down to the required analysis of the
conflict in the testimony between Houston and Pedes-
cleaux and, ultimately, determinations of which accounts
are more plausible and credible. Houston testified that he
was told by Pedescleaux that he would have to transfer
his membership to Local 5, which transfer would take 3
weeks. After waiting the 3 weeks and then calling daily
on the transfer for about 2 weeks more, he finally spoke
to Pedescleaux about the delay, then informing Pedes-
cleaux (essentially) that he needed work and had a job
opportunity at Roadway; that Pedescleaux told him that
it must be Local 612 holding the transfer up (impliedly
not Local 5); and that, when Houston said he was going
to tell Roadway that Local 5 did not object to his em-
683
IF CISI()NS ()F NATIONAL I.AB()R RELATIONS BOARD
ployment, I'edescleaux then told Houston he should have
Kavanaugh call Pedescleaux when Houston approached
Respondent Employer about work and Pedescleaux
would let them know how Houston stood with the
Union. Pedescleaux has Houston coming to the hall to
check on the transfer and Pedescleaux serving Houston
by checking on the transfer and determining that it was
not in. In stark contrast, Pedescleaux's version also has
Pedescleaux suggesting that the outcome of that visit
was his suggestion that the problem may be that Local
270 (New Orleans) may not have transferred Houston to
Local 612 (Birmingham) with Houston then leaving the
hall planning to check further with the New Orleans
local. Pedescleaux otherwise denied that Houston had
asked him to do anything with regard to Roadway Ex-
press. I do not credit Pedescleaux that their conversation
which unquestionably raised inquiry as to the cause of
the transfer delay led into further inquiry to be made by
Houston of Local 270 (New Orleans). Rather I find this
assertion is simply incredulous. This is deemed so be-
cause Houston had his membership card from irming-
ham right in his pocket. That membership card was
issued by Local 612, and it shows on its face that Hous-
ton's transfer from Local 270 to Local 612 had been ef-
fected to Local 612's satisfaction and recorded approval.
Had Pedescleaux actually raised such an issue with
Houston, I am totally convinced that Houston would
have had but to immediately display his membership
card to resolve any continued consideration on Pedes-
cleaux's part of that failure as a viable explanation for the
transfer delay. I thus credit Houston that such a conver-
sation simply never occurred.
Assuming that Local 5 had actively forwarded the
transfer request, nonetheless upon this review and analy-
sis, I find it nothing short of further revealing of another
motive that Pedescleaux, at least by the time of the last
inquiry of Houston, never called or offered to call ocal
612 to determine what the holdup was. Pedescleaux's
further assertion that the call was not made because he
did not think it was his responsibility is wholly uncon-
vincing. Seemingly far more plausible in explanation for
Pedescleaux's noncontact of Local 612 would be a con-
sideration that Local 5 had never forwarded the transfer
request or had knowingly forwarded it without making
provision for the deposit of the withdrawal card. What-
ever may be said of plausibility of some fluctuation of
time in the Local's service of effecting a transfer of
membership from one Local to another, e.g., beyond 3
weeks to 5 weeks or more, I find it still further revealing
that no evidence was ever offered by Respondent Union
as to receipt of an ultimate response or reply from Local
612 although Pedescleaux himself has testified that the
(requested) local always responds eventually one way or
another. The record reveals Houston had withdrawn
from Local 612 in good standing. The inference is war-
ranted and I draw it that the explanation for the failure
to effect Houston's transfer lay not at Local 612's end
but with Local 5, and in the latter connection I find most
revealing of the real reason for nontransfer was Pedes-
cleaux's explanation that the individual requesting trans-
fer had to deposit his withdrawal card with Local 5, a
condition concerning which Houston was not assisted. (I
have earlier noted the withdrawal card had to be ulti-
mately deposited with the issuing local, and conclude
that, if it here was to be deposited with Local 5 as Pe-
descleaux has testified, such was with reasonable purpose
for Local 5 to refer same to Local 612 along with re-
quest for transfer.) It is also Pedescleaux's account that
he never had discovered that Houston had shown the
secretary a withdrawal card from Local 612 until after
charges were brought. It seems to me there are a con-
vincing number of implausibilities that flow from such
assertion that effectively prohibit credit of it. First, Pe-
descleaux is a longtime, experienced business agent. Al-
though Pedescleaux disclaimed intimate knowledge of
transfers, he has nonetheless testified in another fashion
in many aspects of same. Second, Pedescleaux at least ac-
knowledges that he knew of the withdrawal circum-
stance after the charges were filed. Yet, despite aware-
ness then, no inquiry was then made nor transfer still
ever effected. It is to be noted that the local to whom
transfer is to be made (Local 5) must constitutionally
accept a transferred membership (with exception not
argued or shown herein by Local 5), and it is clear that
Houston withdrew from Local 612 while his membership
was in good standing. Third, in view of Pedescleaux's
experience, it is simply inconceivable to me that with a
transfer overdue by several weeks, Pedescleaux's review
of the circumstances would not at least then include a
check of the paperwork involved in the transfer in his
raised claim of otherwise offering service to Houston at
the time. In that connection the record reveals beyond
the question that by this time Houston was actually with-
out work and actively pursuing employment opportunity
with Respondent Employer. It is far more plausible than
not that Houston would have brought those conditions
to the immediate attention of Pedescleaux in the context
of his overdue transfer. I credit Houston that he did so,
and Pedescleaux's version that Houston did not do so is
again rejected as being simply implausible. I thus further
find that an added urgency for inquiry was presented to
Pedescleaux on that occasion that was not plausibly re-
sponded to by the (discredited) offering that Houston
should simply check with Local 270. Rather I conclude
and find it is again more plausible, as Houston has also
testified, that, when Pedescleaux confirmed the transfer
still was not in and offered a suggestion that it must be
Local 612 at least implying that it was not Local 5 and
that Local 5 did not have anything to do with Houston's
initial employment by Roadway, Houston seized upon
such assertions as a basis to state that he then was going
to inform the Employer (Roadway) that Local 5 had no
objection to his employment and that Pedescleaux did in
fact (only) then tell Houston to have the Employer call
him and he would explain Houston's status with Local 5.
I credit Houston's account in the above particulars. I do
not overlook the effect of Houston's frank testimony that
after the latter conversation with Pedescleaux that he at
that time thought it was going to be all right for him to
be then employed by Roadway. However, neither do I
overlook (the finding earlier made) that at that time Pe-
descleaux was aware of Houston's claimed employment
opportunity with Roadway, and that Pedescleaux could
684
ROADWAY EXPRESS. INC
have advised Houston that Houston could have had his
name added to the list on this record composed of union
and nonunion individuals that is regularly sent out by the
Union to Roadway (and other companies) but did not as-
sertedly because Houston did not ask to be put on it. I
thus have no hesitation in concluding that neither Re-
spondent Union nor its agent Pedescleaux has adequately
or fairly represented Houston in regard to his requested
transfer of union membership from Local 612 to Local 5
or to effect employment with Roadway as seemingly re-
quired by Section 8(b)(l)(A).
The question remaining is did it thereby cause or at-
tempt to cause Respondent Employer to discriminate
against Houston in employment. I find that the evidence
offered by the General Counsel predominates that it did
so as well. I have earlier found above that Houston's tes-
timony that Pedescleaux told Houston to have Roadway
call him is to be credited over Pedescleaux's denial for
reasons stated. I have also earlier found that Houston
passed that information on to Kavanaugh on May 20,
that Kavanaugh on that day told Houston he was going
to do so, and that Houston's testimony was that Kavan-
augh thereafter on May 23 informed Houston that he
had done so and had been informed by the Union that it
would not sell, or give, Houston a book. Pedescleaux
denied that he ever actually spoke to Kavanaugh about
Houston's employment. In that connection while an ad-
verse inference is deemed to lie in the failure of Respon-
dent Employer to call Kavanaugh to refute Houston's as-
sertion of the remarks attributed to its agent Kavanaugh,
the Respondent Union has called for a similar adverse in-
ference, presumably against General Counsel, for the lat-
ter's failure to call Kavanaugh in the face of Pedes-
cleaux's denial of having any conversation with Kavan-
augh about Houston. For reasons earlier stated, I have
found much of Pedescleaux's version of that earlier con-
versation with Houston to be implausible and incredu-
lous. In that circumstance I am constrained to place
much less reliance on Pedescleaux's categorical denial of
the ultimate fact of having had communication with Ka-
vanaugh nor, in my view, do the circumstances warrant
adverse inference being drawn from General Counsel's
failure to call Kavanaugh, viz, that if called his testimony
would not support the General Counsel's case. To the
contrary in the face of surrounding circumstantial evi-
dence I have otherwise and independently concluded
that Houston's testimony as to the remarks he attributes
to Kavanaugh is not only both credible and uncontra-
dicted but partially corroborated by Wright's overhear-
ing of Houston's assertion on learning of the Union's po-
sition from Kavanaugh that he was blackballed by Local
5 and confirmation (admission) that Kavanaugh had later
told Wright that the Union (Pedescleaux) would not give
Houston a book. Were the latter all there was to the case
against the Union's causation that ambiguous fact, viz, re-
fusal to sell or give Houston a book, in contemplation of
the International's proscription against offer of new
union membership by a local to a member on withdrawal
from another local (as Houston was) would present a
closer question of any unlawful causation by the Union.
But that is not all that was presented in this case for
Houston credibly relates that Kavanaugh informed him
as well that he was also told by the Union that if he (Ka-
vanaugh) were to do as he first indicated, viz, hire Hous-
ton anyway, Respondent Employer would get more than
it bargained for, a threat of a labor dispute certainly
plausible in context and sufficiently serious to cause Ka-
vanaugh's subsequent declination to hire Houston. Nor
need the Union's motive be inferred solely from Kavan-
augh's remarks. This record reveals a continuing context,
stretching from steward Owens urgings in 1976 that
Houston had to join Local 5 (albeit unheeded by Hous-
ton at the time) and Operations Manager Danny's urg-
ings in February-March 1977 to the latter's material re-
quirement in March 1978 that Houston this time had to
first get straight with the Union before he was to be em-
ployed. The more convincing urging was prior union
membership established as an operative hiring condition
in May 1978 by Wright's credited testimony that (later)
in early 1979 when Local 5's steward Owens again had
questioned Employer's action of hiring nonunion casuals
and on the occasion when Wright had explained to assis-
tant business agent Doug Partin that as in the (settling)
Houston case Respondent Employer did not have to re-
quire that an individual be in the Union to initially put
him to work. Partin had told Wright he was crazy,
threatened to shut down the Baton Rouge terminal with
pickets the next day, and threatened institution of a
hiring hall at Baton Rouge. (Contrary to the General
Counsel I am convinced that Doug Partin did make ref-
erence to the right-to-work statute The point is, howev-
er, his threats were more inclusive.) I am thus wholly
persuaded and I find that on or about May 23 Respon-
dent Union by its action and/or inaction on Houston's
transfer and by warnings to Manager Kavanaugh has
caused or attempted to cause Respondent Employer to
refuse employment to Houston at Respondent's Baton
Rouge terminal because of Houston's lack of membership
in Local 5 under circumstances constituting a violation
of Section 8(b)(1)(A) and (2) of the Act.24
The Remedial Reinstatement and 3ackpay Issues
I have earlier specifically found that discriminatee
Joseph I.. Houston had been told by Respondent Em-
ployer's operations manager that if he met the (illegal)
condition of first getting straight with the Union he
would not only be immediately employed as a casual em-
plovee but he would also receive the first regular job to
z4 It i 1 he thus hs-crsed that this is notl te caser o a irfertnice of
UIInlica salltill resling slciy lpoil an adverse infterce from Kan-
augh' filult ,. tcIfy Ratlcr It is readil' observed to he Iht conitrar).
fi*r il at olsx.d .a ot nlulri hrals from1 a series of priha{tli e t sac , all
itcndling to sixn ulltlt1 .ilt s atior [huLs lhelre ia ih pilsiblc aiil redi
hie Iestc ninll, l- loustion, inirr iaa , that In ltoulstoll's effort to ,.ec lre
ctirllploTlitlt at Roaduo P'cedescleaux told tiousllol to halc Kavanaugh
a;1l h}iLt. thait 1}otinhr did st. andi that Karanaugih later told ltiousitml
that h had,1 iol tlC s- aitd. tiJ titlifnl if the particulatirs f that coiilersl.a
-
Iioin, thercbh stahlishing ill enmployer admissiion of iin causation in his
noneniphlymnen t hb Fmpl pytr erl ol the nimre s then huttressed hb cotn-
side atli l ti th obscrscd mplausiblllties ii I e lactuill vlersio if ll'dcs-
clcaux il dctisal. hich ihorahly taxed crcdulht i llalor respects
lioriet\ir tL JtI,,I,.I', ;l ,tlit.l sIs ;A -s ',holl ti(1 ,1stel'1 t \,i11 tthr at-
tct.Iillt ill.tlllt ,t.ll x I'c( i record further Ill Jtlt'ellillJ stlpptrltis alnd
corroh rl c 0I . irllir L Lillt atlti1l it)1 lo)usi s, I tin nipll tp ncl tfor lack t
nileihtrshtip iI I til ilte COtIrCLILsi.it rachetd is thius ltarls it, the
inilLeriisshh lc t' / I Illfei It ' uilt s.cl it inhterclIce
685
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be thereafter offered by Respondent Employer at its
Baton Rouge terminal. I have further specifically found
that Houston was later told by Respondent Employer's
terminal manager, Kavanaugh, that Houston was in fact
to be employed the following week, but that when Hous-
ton subsequently appeared at the terminal on May 23,
1978, as directed by Kavanaugh, Houston was discrimina-
torily denied employment at Respondent's Baton Rouge
terminal because of Houston's lack of membership in
Local 5. This denial of employment by Respondent Em-
ployer has been found to be in violation of Section
8(a)(1) and (3) of the Act, and to have been caused, or
attempted to be caused, by Respondent Union in viola-
tion of Section 8(b)(l)(A) and (2).
The General Counsel essentially has requested, inter
alia, the usual remedy of an ordered reinstatement and a
make-whole backpay provision for Houston. Respondent
Employer, however, has contended that its reinstatement
of Houston should not be ordered; and further that the
period of backpay award to Houston should itself be
limited to August 21, 1978, at which time Houston was
recalled to employment at Respondent Employer's Bir-
mingham, Alabama, terminal or, at the latest, to March
23, 1979, at which time Houston was discharged from its
Birmingham, Alabama, terminal for cause.
The Additional Facts Bearing on Remedial
Reinstatement and Backpay Issues
It will be recalled that, after working at the Birming-
ham terminal from 1972 to 1976, Houston was laid off in
May 1976, initially recalled for a brief period, and laid
off again in October 1976. Houston was next recalled
from layoff on August 21, 1978, for regular work at the
Birmingham terminal in accordance with his seniority as
provided for under the existing contract. 25 It is observed
that this second recall on August 23, 1978, was some
year and 10 months from his last brief recall, and more
pointedly, over 2 years since the initial layoff and his last
physical obtained from the Company's doctor. When
Houston reported for work he was unable to pass the
normally required preliminary physical because of a high
blood pressure infirmity that was evidenced at that time.
Respondent Employer notified Houston of the result,
also advising Houston that as of such time as he could
pass the required physical he should at that time again
contact the Employer.
Houston took another physical examination in January
1979, in which he again failed to pass when the same
high blood pressure infirmity was still evidenced. Re-
spondent Employer notified Houston of this result also,
but continued to advise Houston that as such time as he
could pass the required physical he should contact the
Employer. In February 1979, Houston took two or three
additional physical examinations, the last of which, pre-
sumably, finally showed that his blood pressure was
down to within normal range. At that point, Respondent
Employer put Houston on active duty at its Birmingham
terminal, with the starting date unspecified in the record,
25 It appears that under the applicable contract's provisions Houston's
seniority right of recall at that terminal was for 3 years. G C Exh. (Na-
tional Master Freight Agreement), art. 5, sec. 1, and see also art. 8, sec. 6.
but notably some 6-7 months after his initial recall by
Respondent Employer in August 1978, which delay (I
find) was solely due to Houston's personal inability to
pass the Company's normally required physical in the in-
terim .2
Houston further relates that it had been his under-
standing that he was to be recalled for regular employ-
ment, but, when he finally reported for work at Birming-
ham, he was then told that he would be employed only
2-3 days a week. 27
Houston was terminated on March 23, 1979, for refus-
ing on several occasions to report for his job. In that
connection, Wright, corroborated by King, testified cre-
dibly that it is the Company's policy not to hire someone
at one terminal who has been previously fired from an-
other terminal. 28 The record reveals otherwise that an
employee who resigns, with a good record, may be
reemployed, but only with the approval of a vice presi-
dent (district).
Houston's initial explanation for his absence was that
he was sick. Although he acknowledged that he had
been sent a letter by Respondent Employer advising him
that he had to either make himself available for work
with Respondent Employer or consider himself terminat-
ed, Houston testified that the letter was sent to an ad-
dress at which he was not staying, and that consequently
he had not received that letter in time to respond. Hous-
ton volunteered in that respect, however, that he did not
get the message timely or he would have responded to
Employer at the time that he had quit, asserting further
that this was what his intent was to do all along, after he
had first made certain other efforts to obtain what he be-
lieved was due him.2 9 Nonetheless, the record reveals
2B Houston filed certain unfair labor practice charges respecting his
failures to pass the Company's physical examinations, which charges
were subsequently withdrawn. The General Counsel has not urged herein
that there was any unlawful discrimination in connection therewith. On
the basis of the record before me, I find there was not.
27 It was Houston's understanding of the contract that he could re-
quire a layoff where work or pay was irregular. Respondent sought to
establish that Houston had filed a grievance seeking to be laid off. On
objection of the General Counsel the matter was ruled irrelevant on the
open issues of required reinstatement and whether backpay should be
limited to the recall date of August 21, 1978, or the discharge date of
March 23. 1979; any further relevance relating to the amount of backpay
due was relegated to the compliance proceeding.
28 It was uncontested by the General Counsel that the policy is a writ-
ten one and is contained in the industrial relations section of the Road-
way manual given to all supervisors with one copy maintained at each
terminal.
29 Respondent initially sought to introduce evidence by way of elicit-
ing further acknowledgments from Houston that during this period he
had filed numerous grievances requesting not only sick pay benefits, but
essentially all contractual benefits that had been applicable to workers
during his own 2-year layoff period (which Respondent has candidly ex-
pressed it viewed as unreasonable), and had also filed various EEOC and
unfair labor practice charges, all of which were subsequently withdrawn.
Ruling was made on objection of the General Counsel that the substance
of such matters was also essentially a collateral matter not bearing materi-
ally on the material issues of whether there was a prior reinstatement or
forfeiture of right of reinstatement by prior discharge for cause. It would
appear in passing that the justification (or lack of same) involved in the
act of filing grievances (or other charges) is not a relevant consideration
to the above issue of reinstatement (or backpay award). Notably a claim
of malice was neither raised nor proven herein. As earlier noted to the
extent any of such subjects may ultimately prove relevant to any compli-
Continued
686
ROADWAY EXPRESS, INC.
that Houston filed a grievance on his termination. (In
passing, I observe that it appears from the record that
about this time Houston had returned to Baton Rouge
and secured other employment.) Houston's grievance
was subsequently heard in Biloxi, Mississippi, pursuant to
the contract's provision, with Houston (apparently vol-
untarily) not participating. The hearing resulted in a
denial of Houston's grievance. Respondent has argued
that it does not seek to (now) relitigate that that dis-
charge was for cause, but to the contrary argues it now
should be regarded (by the Board) as a historical fact
that Houston was discharged from its Birmingham, Ala-
bama, terminal for just cause under the contract, and not
for any unlawful reason. It does not appear that the Gen-
eral Counsel has sought to contend to the contrary. In
any event, I conclude and find on this record that Hous-
ton was terminated (for his absences) under the contract.
Thus, any further consideration of Houston's reemploya-
bility under Respondent Employer's policy applicable to
an employee who resigned is unwarranted. The Employ-
er's further contention in regard to Houston's exhibited
intent to quit is considered infra.
On the basis of the above facts, Respondent Employer
essentially contends there was an effective reinstatement
of Houston and consequent tolling of backpay on August
21, 1978, on the occasion when Respondent Employer
recalled Houston to full employment at its Birmingham
terminal as a truckdriver, with full seniority and security,
since thereby it has provided Houston with a better job
opportunity than the casual employment at Baton Rouge
terminal would have offered, which included dock work
as well as driving, and was without guaranteed hours, se-
niority, or security. Respondent Employer argues that
the Board has not precluded an offer of a better job from
qualification as equivalent employment to a job previous-
ly offered a discriminatee, relying on Pinkertons National
Detective Agency, Inc., 90 NLRB 205, 208 (1950); Wheel-
ing Pipe Line, Inc., 111 NLRB 244, 260-261 (1955); and
further argues in that respect that its job offer of employ-
ment at the Birmingham terminal may be likened to an
offer of employment in the construction industry at a dis-
tant jobsite, which did not disqualify as a valid reinstate-
ment, L & L Painting Co., Inc., 174 NLRB 911 (1969).
(However it is observed in passing that these cases are
distinguishable from that herein either on point of com-
parison of former position, or nonavailability of same as
precondition, respectively.) Respondent Employer has
further contended that when a job is offered and accept-
ed by a discriminatee the issue of the validity of the offer
of reinstatement is rendered moot, Panscape Corporation,
231 NLRB 693 (1977). (However, apart from other con-
siderations the latter case appears inapposite on facts in
light of the recall circumstances attendant to the Bir-
mingham employment discussed infra.) Alternatively and
in any event, Respondent Employer contends that a re-
sponsibility to offer reinstatement (or to provide further
backpay) ended for Respondent Employer on March 23,
1979, when Houston was independently discharged at
Birmingham for cause, and because the record reveals
ance computation otherwisc, they also may aait the inestigatilll of the
compliance proceedings
that it was Houston's intention at that time to quit
anyway. Bankers Club, Inc., 218 NLRB 22, 26 (1975);
Locke Insulators, Inc., 218 NLRB 653 (1975); and Lacka-
wanna Leather Company, 221 NLRB 355 (1975).
The General Counsel contracontends that the remedial
law of the Board requires that an offer of reinstatement
be made to Houston in the remedy of Respondent's un-
lawful refusal of employment at Baton Rouge, and that it
must be specific, unequivocal, and unconditional. Stan-
dard Aggregate Corp., 213 NLRB 154 (1974); Jimmy Dean
Meat Company, Inc. of Texas, 227 NLRB 1012, 1034
(1977). The General Counsel further contends that the
offer of a truck job at the Birmingham, Alabama, termi-
nal, over 750 miles distant from the Baton Rouge termi-
nal at which the discriminations occurred, simply is not
an equivalent job offer, and, moreover, that due account
should be given of factors of the nearness of the Baton
Rouge terminal to Houston's familial home and as well
as of the effect the now determined discriminatory refus-
al of employment to Houston by Respondent Employer
and at Respondent Union's insistence has had on other
employees at Baton Rouge. I conclude that the General
Counsel's position prevails on both fact and law applica-
tions herein.
Analysis
I have no quarrel generally with the authorities cited
by counsel for Respondent, but as noted am not persuad-
ed with their specific application to the precise facts of
this case. Preliminarily it may be observed that the usual
remedy to be provided to a discriminatee is one designed
and tailored to restore the individual discriminatee to the
status quo ante, i.e., to the employment position that he
would have enjoyed, but for the wrongful discrimina-
tions, and to do so initially to the extent that it is possi-
ble. The full remedy is not only to be provided to the
discriminatee, but also appropriate notice of the remedy
provided him is to be also provided to other directly af-
fected fellow employees.
Respondent Employer is called upon to fully remedy
the past discrimination and its reasonable employment ef-
fects to date of actual remedy. This is accomplished by
an (usual) order that it make an immediate and full rein-
statement of the discriminatee (first) to his former posi-
tion if that position exists, or if not (then) to a substan-
tially equivalent position, and further that this be done
without prejudice to his seniority or other rights and
privileges. In the case where an individual has been re-
fused employment as a job applicant, as in Houston's
case, the above full reinstatement order to his former po-
sition without prejudice to his seniority and other rights
and privileges includes an offer of any further job oppor-
tunity he would have had, e.g., of regular employment
that Houston would have subsequently enjoyed, had he
not been discriminated against at the time of his employ-
ment application rejection for discriminatory reasons. Cf.
George Webel d/b/a Webel Feed Mills & Pike Transit
Company, 236 NLRB 1192, 1193 (1978). The record does
not reveal whether subsequent in time to the refusal of
casual employment to Houston on May 23 that Respon-
dent Employer has had occasion to employ or reassign
687
I)l :CISI()NS ()t; NA I()NAL LABOR RELATIONS BOARD
any casual employee to full-time or regular employment
status, a not unusual record condition, inasmuch as such
refinements of full reinstatement without prejudice nor-
mally involve issues left to the compliance investigation
stage. The latter is, however, a material factor not to be
overlooked in the consideration of what properly has
constituted claimed reinstatement in this matter.
I begin with the observation that neither in origin nor
expressed intent nor in fact was the offer of employment
at the Birmingham terminal made to Houston on August
21, 1978, an offer of full reinstatement to former or sub-
stantially equivalent position. Rather it was clearly of
record a recall from layoff, pursuant to contractual pro-
visions and accomplished in accordance with tHouston's
independent seniority rights, earned by him for years of
prior service at that terminal and still active and in
effect. Obviously the Birmingham terminal employment
was not an offer to the former position occupied at the
time of the discrimination, viz, job applicant for work at
the Baton Rouge terminal as casual, but with prospective
opportunity for first full-time job opportunity thereafter
to be offered. Factors of part-time work versus full-time
work are not insignificant distinctions affecting issue of
full reinstatement, f. East Belden C(orporation, 239
NLRB 776 (1978), and only the more so where addition-
ally to be taken into account is a promise of first oppor-
tunity for prospective regular work. ()ther factors of dis-
tance between the terminals and relative closeness to fa-
milial home are also valid contraindicators that an offer
is made of even substantial equivalent nature. I thus con-
clude and find that Respondent's recall of Houston for
work at its Birmingham, Alabama, terminal did not con-
stitute an offer of full reinstatement to former, or suh-
stantially equivalent position, without prejudice to se-
niority or other rights and privileges, and that according-
ly Respondent's obligations in that respect and for hack-
pay were not extinguished and/or tolled.
I have earlier found that Houston was terminated
while employed at Respondent Employer's Birmingham
terminal. However, even assuming that Houston had in-
tended to quit his employment there, at some prospective
time, it is observed that it does not necessarily follow
from Houston's indicated dissatisfaction with working
only 2-3 days a week at Employer's Birmingham, Ala-
bama, terminal over 750 miles from familial home and
native community that Houston had abandoned interest
in working for Respondent Employer at the earlier de-
sired but discriminatorily denied location, viz, its Baton
Rouge, Louisiana, terminal to which area Houston had
returned and secured other employment. 0 In any event,
the requirement that an offer of reinstatement be made is
not one readily obviated, e.g., not by circumstance that
the discriminatee, in the interim prior to offer of rein-
statement, is working elsewhere for another employer or
himself or for the employer, but in another position nor
solely because of expression of past or present intent to
.:1 huis .ackawantna Leather (oitpuarn. cupra. on ,r1 hich lI 1pl over
would rely appears distinguishable in hat there he elilplocc hadli gien
iotice of intent to quit while still emiploNed and prior to (ie dichrinliina
tion Similarly, ill L.i , Irnlatorn. Inc iupra, nlin eplli)oe althougL tli
criminated agalinsl was not discriminalrily terminated hefirre a; disllhargc
for another niondise riminalorn reason occurred
quit where no offer of reinstatement, as is required, has
in fact ever been made. The discriminatee is entitled to
have the valid offer of reinstatement before him prior to
making an unequivocal election as to whether to return
to work for the Employer or work elsewhere. Nor, con-
sequently, has Respondent Employer's backpay obliga-
tion ended, cf. Central Cartage, Inc., 236 NLRB 1232,
1243, 1260 (1978); Medline Industries, Inc., 233 NLRB
627, 653 (1977), modified in nonrelevant part 593 F.2d
788 (7th Cir. 1979); Dobbs Houses, a Division of Squibb-
Beechnut, Inc., 182 NLRB 675, 682 (1970); Heinrich
Motors, Inc., 166 NLRB 783, 785-786 (1967), enfd. 403
F.2d 145, 150 (2d Cir. 1968).
Moreover, the General Counsel has correctly observed
that an important consideration in the requirement that
an offer of reinstatement be made, as is required, is for
the purpose of the Act that other employees at the Baton
Rouge terminal be made aware that involved and guar-
anteed Section 7 rights are protected through an eventu-
al ordered offer of the return of the discriminatee to
former position, and that the discriminatee is to be made
whole as well, Valmac Industries, Inc., 229 NLRB 310
(1977); M Restaurants, Incorporated, d/b/a The Mandarin,
228 NLRB 930 (1977).
There thus remains but to consider Respondent Em-
ployer's final contention that, in view of its interim dis-
charge of Houston at Birmingham and its established uni-
versal policy against the rehire of a former discharged
employee, the Board should decide not to order the rein-
statement of Houston in this case and should rather con-
elude the backpay obligation tolled as well as of date of
discharge on March 23. 1979. It appears, however, that
the test in similar such circumstances has been not
whether the employer has a preexisting rule that a discri-
minatee may subsequently have violated,3 ' but rather
whether the subsequent conduct of the discriminatee
was, or was not. so egregious as to render the employee
not reemployable. Such has clearly been the test where
the discernible wrongful conduct was provoked or gen-
erally contemporaneous with the prior discrimination,
Baker Machine & Gear, Inc., 220 NLRB 194, 208, fn. 1
(1975). It appears to have been the test employed in
LudwHig Fish & Produce, Inc., 221 NLRB 1306 (1975),
where reinstatement was not ordered in that case where
the discriminatee was subsequently convicted for a theft
of the employer's property (though it is observed the
actual underlying wrongful conduct had occurred even
prior to discrimination). But here we do not have on the
one hand a discharge with subsequent conduct recently
provoked nor on the other hand conduct equal to a theft
but rather a postdiscrimination discharge at a distant ter-
minal for absences from the work assignment of but 2-3
days a week without an offer of prior required reinstate-
ment ever having been made. The offer of reinstatement
in a discriminatory discharge or refusal of employment
case is the conventional remedy because it is basic to the
Board's remedial scheme, Heinrich Motors, Inc., supra at
785. After full reflection on and balancing of the above
I [hlls ilso dtlrsilgush.ablth aIr tholse casles here the employer had
actlually decided It) discharge the ctiployee hefoire the discrimination was
connnitd1111 (t I JaA(r (uh. I , 218 NlRB 22. 26 (1975)
688
ROADWAY EXPRESS, INC
factors I find myself persuaded by the General Counsel's
contention that Houston's absences at Birmingham, ob-
jectively viewed, while they may have been lawful cause
for discharge under the contract's provisions nonetheless
did not involve such egregious conduct on Houston's
part at the time as to render Houston unfit for reinstate-
ment which all through that very period has been
wrongfully denied him by Respondent Employer's con-
tinuing discriminatory refusal to employ Houston at
Baton Rouge. As Respondent Employer has failed to
offer Houston the usual and required reinstatement to
date, I shall recommend that Respondent Employer be
ordered to reinstate Joseph L. Houston now. 3 2 In my
view, to conclude otherwise and to order less would
leave the spectre of discernible consequences of the prior
discriminatory conduct at the Baton Rouge terminal left
inadequately remedied. I observe application of the
wholesome principle that any doubt therein must be re-
solved in the victim's favor, not in benefit of the trans-
gressor.
CONCI USIONS OF LAW
1. Respondent Employer, Roadway Express, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Respondent Union, General Truck Drivers, Ware-
housemen & Helpers Local Union No. 5, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. On May 23, 1978, Respondent Employer denied em-
ployment to Joseph L. Houston, as a casual employee
(with promise of first regular employment thereafter), be-
cause of his lack of membership in Respondent Union, in
violation of Section 8(a)(1) and (3) and Section 2(6) and
(7) of the Act.
4. On May 23, 1978, Respondent Union attempted to
cause and did cause Respondent Employer to deny the
aforesaid employment to Joseph L. Houston, because of
the latter's lack of membership in Respondent Union, in
violation of Section 8(b)(l)(A) and (2) and Section 2(6)
and (7) of the Act.
THE REMFDI)
Having found that Respondent Employer and Respon-
dent Union have engaged in certain unfair labor prac-
tices, I find it necessary to order Respondent Employer
and Respondent Union to cease and desist therefrom and
to take certain affirmative action designed to effectuate
the policies of the Act, including the posting of the at-
tached notices deemed adequate to remedy the violations
found. 33
a2 Cf. O' Danrwl Oldsmobile, Inc., 17' NLRH 38 at 4)05 ( 9h)I I.f R,
raurants, Incorporated. d/b/a The Mandarin. rupra at 130. 912 (1977)
Contrary to Respondent's urgings It is obhserrsd that I h co urt ill
,.L.R.B. v 7homuvr .4ywk. Jr. d/h.u i.ra ita ds !77 F 2d l1 5thl
Cir 1967), recognized the coiltlinuatioln of the backpa i ohligatil l l.ir
reinstatement has not been effected Other considerations of ci ef I rl
the amount f backpa due ttouston i certain periods heC;il-N. sit U I Il
loss of earnings. or its equivaleln mal y i til hrt c, nmpliallie proceedlinLs
3" The General CouLisl has further requested lthi Rcspolrldcri lt lll
be ordered to ease discrimirnaitig against Ittrllsiot itoh regard it! jo re
ferrals because of his Inonmembership in (he L till, L d a pol n it a;l Ippriprli-
ate notice to that effect As such mnillter as s riot ai illegitioll of lile irlH
I have found that Respondent Employer discriminator-
ily refused employment to Joseph L. Houston on May
23, 1978, because of his lack of membership in Teamsters
Local Union No. 5; and that Respondent Union caused
or attempted to cause the Employer to do so. I find it
necessary to order that Respondent Employer offer
Joseph L. Houston full reinstatement to his former posi-
tion, or, if that position no longer exists, to a substantial-
ly equivalent position, without prejudice to his senior-
ity 3 4 and other rights and privileges. I further find it
necessary to order that Respondent Employer and Re-
spondent Union, jointly and severally, make Joseph L.
Houston whole for any loss of pay or other benefits, suf-
fered by reason of the previous discriminations practiced
against him. ackpay will be computed in accord with
the Board's decision in F ' W' Woolworth Conpanl, 90
NI.RB 289 (1950), and -lorida Steel Corporation, 231
NIRB 651 (1977)."3 '
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
OR DER:a6
A The Respondent Employer. Roadway Express.
Inc., its officers. agents. successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating against Joseph L. Houston with
regard to employment at its Baton Rouge terminal be-
cause of his lack of membership in Respondent Union.
(b) In any like or related manner interfering with, re-
straining, or coercinig employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) ()ffer to Joseph 1. Houiston immediate nemploymellnt
at the same or substanrtially equilvalent position at ',hich
he would have been employed had he nrot been previous-
ly discriminated against without prejudice to his seniority
or other rights and privileges, and jointly and severally
with Respondent Union, General Truck Drivers, Ware-
housemen & Helpers l.ocal Union No. 5, make him
whole for any loss of pay or other benefits, suffered by
reason of the previous discrimination practiced against
him, together with iterest. in the manner described
above i the section entitled '"Ihe Remedy."
(b) P'reserve and, upoII request, make available to the
Board or its agelits. for examination ad copying, all
payroll records, social security paymctrt records, tinme-
plali. , 1lr ill it[ labor pra ti-.ll fil d.Ii ril . hllia tlC ioll , for reasonls stated
earlitr, rel te'ilaJ irter thtretiis o t Ili et reCni, ; :rr:illl dh
: Smiriits lerr [cteiirfd tr. I% ri, it { if' .l ; rbepic ls h s ~Irtilt t
th rilledtlS f it tlt ill",s hllg e lled ill tilpl l -nlt pportill,s it R-
spretRlrli H1t1oI e t ir;illtlt RoIg I, tlrrt i1. i \,r lilig rlitre In ll tic l l .
alti lireh l ll p ih H litloIstoni' [etc riilrl.r vll IN4Olill hto 1t1 I cli l er
.i1 Itls l llifrro.i;tm %r llr i
St.t, gciI-lrI i, /y I i/1v-Irrwlr/ I f/o[tr ( 1 8 NI Ri 711, (I'Hhr2
IL Ill li'e .rin ltl l MI itpt -im tile l 1 ,I .r tl . lt d Sr. 1i 0 4{ tl
IIIt Ruier, il]d R'grr]itir% o Ihe Ni.i~ir I ibi R ti,, ii I lie
1- i L I I I L I1 ,l, II I l /, It' iI I 'I) I . I Il tl l %}/,tl Ilb I IIt Jdt'I
ill St. Ill' 4S I ItI- Rills 111 RtL'giLilllI ' . rr .id,1 ittl It I fll , ll dl
let ' O lnL I , I u l, . l., lllJrJI JrS . ilnI ()il'il ,l il l I hletluIr letI-I
.11..lJI 1 }be , Ir'i, .t.lXid t,1][ I LO ,ISrC>
689
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(c) Post at Respondent Employer's Baton Rouge ter-
minal copies of the attached notice marked "Appendix
A."3 Copies of said notice, on forms provided by the
Regional Director for Region 15, after being duly signed
by Respondent Employer's representatives, shall be
posted by it immediately upon receipt thereof, and be
maintained by Respondent Employer 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
Employer to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order, what
steps Respondent Employer has taken to comply here-
with.
B. Respondent Union, General Truck Drivers, Ware-
housemen & Helpers Local Union No. 5, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Respondent Em-
ployer, Roadway Express, Inc., to discriminate against
Joseph L. Houston with regard to employment at Re-
spondent Employer's Baton Rouge terminal because of
his lack of membership in the above Union.
:'7 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 Pursu-
ant to a Judgmenl of the United States Court of Appeals Enfifrcing an
Order of the National L.abor Relations Board,"
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights under Section
7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Notify Respondent Employer, Roadway Express,
Inc. and Joseph L. Houston, by letter, that it has no ob-
jection to the employment of Joseph L. Houston by Re-
spondent Employer at the latter's Baton Rouge terminal.
(b) Jointly and severally with Respondent Employer,
Roadway Express, Inc., make Joseph L. Houston whole
for any loss of pay or other benefits suffered by reason
of the discrimination practiced against him, together with
interest, in the manner described above in the section en-
titled "The Remedy."
(c) Post at its offices copies of the attached notice
marked "Appendix B."3 8 Copies of said notice on forms
provided by the Regional Director for Region 15, after
being duly signed by an authorized representative, shall
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
members are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other materi-
al.
(d) Deliver to the Regional Director for Region 15
signed copies of said notice in sufficient number to be
posted by Roadway Express, Inc., at its Baton Rouge
terminal, Respondent Employer willing, in all places
where notices to employees are customarily posted.
(e) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
:d See fri 37, upru.
690