Western Gillette, Inc.

National Labor Relations Board - Board Decisions

Feb 6, 1973

201 N.L.R.B. 662 (N.L.R.B. 1973)

662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Western Gillette , Inc. and Roscoe S. Cook.
International Brotherhood of Teamsters , Chauffeurs,
'Warehousemen and Helpers of America (Ind.),
Local Union No. 492 and Roscoe S. Cook. Cases
28-CA-2501 and 28-CB-659
February 6, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On August 18, 1972, Administrative Law Judge'
David E. Davis issued the attached Decision in this
proceeding. Thereafter, the Respondent Employer,
the General Counsel, and the Charging Party filed
exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge as
modified herein.
The Administrative Law Judge found, and we
agree, that the Respondent Employer violated
Section 8(a)(1) and (3) of the Act by virtue of its
actions in discriminating against and refusing to hire
employee Roscoe S. Cook because he was not a
member in good standing of Respondent Union.
The Administrative Law Judge, however, also
found, contrary to the contention of the General
Counsel, that the refusal to hire was not caused by
any pressure by the Respondent Union. We disagree
and find, contrary to the Administrative Law Judge,
for the reasons set forth below, that the Respondent
Union violated Section 8(b)(2) of the Act by virtue of
its actions in causing or attempting to cause
Respondent Employer to discriminate against em-
ployee Cook.
As more fully set forth in the attached Decision of
the Administrative Law Judge, the Respondent
Employer hired Cook, who had been previously
employed by Apex as a relief driver, as a relief
dispatcher on June 28, 1971. While Cook had been
employed at Apex, he crossed the Respondent
Union's picket line several times each week. As a
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
8 Prior to this formal application for union membership , Cook had, on at
least two previous occasions , visited the union hall seeking assistance from
Union Agents Orozco and Glen Jones . Jones, appearing "very bitter,"
consequence, Donald Orozco, a union organizer,
warned Cook that he would be blackballed and
would never receive a union card.
In February 1971, Cook unsuccessfully sought
employment at Respondent Employer's Alberqu-
erque office as a line driver. Several months later,
Cook, upon learning that Respondent Employer was
now accepting applications, again submitted an
employment application to Terminal Manager Cun-
ningham. Shortly thereafter, Cunningham called
Cook and offered him a relief dispatcher's job
replacing three regular dispatchers while each was on
vacation. After I month as a dispatcher, Cook told
Cunningham that he had crossed the picket line
during a strike by Respondent Union at Apex.
Whereupon, Cunningham informed Cook that in
order to become a line driver Cook would have to get
squared away with the Union.
On August 23, Cook went to the Respondent
Union's hall, paid the Union's initiation fee and
monthly dues, and submitted his application for
membership.2 On the same day, Respondent Em-
ployer hired Paul Reppert as a line driver. On
learning of Reppert's employment, Cook asked
Cunningham to put him on as a line driver.
Cunningham assured Cook that he would become a
line driver as soon as he got straight with the Union.3
Thereafter, when Cook received on October 12, 1972,
a letter from the Union stating that his application
for membership had been rejected, he expressed his
concern over his seniority to Respondent Employer's
Director of Line Operations Dewey Gent , stating
that he thought he should have been hired ahead of
Paul Reppert on August 23, 1971, and James Rupe
on September 30, 1971.
In the interim, in September 1971, Billy M. Lacey,
Respondent Employer's eastern division director,
had met with Union Representative Glen Jones at a
joint council meeting in Phoenix, Arizona. At this
meeting, Glen Jones told Lacey that he would
appreciate the Respondent not using Cook as a line
driver or as a dispatcher. Jones further stated that he
thought the hiring of Cook "would cause the
company trouble down the road." In November,
subsequent to the time when Cook's application for
membership had been rejected by the Union, Glen
Jones told Director of Line Operations Dewey Gent
that "unofficially, I don't want you to put the man to
work as a line driver and I would prefer that you get
rid of him as a dispatcher."
On the basis of the foregoing, and the entire record
recommended that Cook should seek a "non-union job."
3 Cunningham testified that it was his understanding that the contract
between the Company and the Union required all line drivers to become
members of the Union within 30 days of their employment with the
Company
201 NLRB No. 77
WESTERN GILLETTE, INC. 663
in this proceeding, we are persuaded that the Union
sought to prevent the Employer from hiring Cook as
a line driver, for reasons unrelated to the payment of
dues or initiation fees, and that the Respondent, in
fact, complied by failing to hire Cook to fill line
driver vacancies which were filled on September 30
and October 25. Accordingly, we find that the
Respondent Union violated Section 8(b)(2) of the
Act.
REVISED REMEDY
Having found that Respondent Company has
engaged in certain unfair labor practices, we shall
recommend that it cease and desist therefrom and
that it be required to take certain affirmative action
designed to effectuate the policies of the Act.
We shall further order that Respondent Company
make Roscoe S. Cook whole for any loss of earnings
he may have suffered by reason of the discrimination
against him by payment to him of a sum equal to
that which he would have earned as wages from
August 23, 1971, until September 30, 1971, less
interim earnings during such period. We shall further
order that Respondents, jointly and severally, make
Roscoe Cook whole for loss of earnings resulting
from their discrimination against him in the period
September 30, 1971, to January 12, 1972, less net
interim earnings during such period.
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 4 from the Administra-
tive Law Judge's Decision and substitute therefor the
following:
4. By causing and attempting to cause the
Respondent Employer to discriminate against Ros-
coe S. Cook as aforesaid, Respondent Union
engaged in unfair labor practices proscribed by
Section 8(b)(2) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent Employer, Western Gillette, Inc.,
Albuquerque, New Mexico, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (Ind.), Local Union
No. 492, or any other labor organization of its
employees by discriminating against any employee in
regard to hire or tenure of employment or any term
or condition of employment, except to the extent
authorized by Section 8(a)(3) of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed by Section 7 of the Act,
except to the extent that such right may be affected
by an agreement requiring a membership in the labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Make whole Roscoe S. Cook for any loss of
earnings suffered as a result of the discrimination
against him in the period August 23, 1971, to
September 30, 1971, in the manner set forth in the
section entitled "Revised Remedy," and jointly and
severally with the Respondent, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Ind.), Local Union No. 492,
make Cook whole for losses resulting from the
discrimination against him in the period September
30, 1971, to January 12, 1972.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its business in Albuquerque, New
Mexico, copies of the attached notice marked
"Appendix A."4 Copies of said notice, on forms
provided by the Regional Director for Region 28,
after being duly signed by an authorized representa-
tive of the Respondent Company, shall be posted by
the Respondent Company immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent Company to insure that said notices are
not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order,
what steps the Respondent Company has taken to
comply herewith.
B. Respondent Union, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America (Ind.), Local Union No. 492, its
officers, agents, and representatives, shall:
1. Cease and desist from:
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Causing, or attempting to cause, Western
Gillette, Inc., or any other employer within its
jurisdiction, to discriminate against Roscoe S. Cook,
or any other employee, in violation of the proscrip-
tions of Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Jointly and severally with the Respondent
Western Gillette, Inc., make whole Roscoe S. Cook
for any loss of earnings suffered as a result of
discrimination against him in the period September
30, 1971, to January 12, 1972, in the manner set forth
in the section entitled "Revised Remedy."
(b) Post at its meeting hall and dispatch office
copies of the attached notice marked "Appendix
B."5 Copies of said notice, on forms provided by the
Regional Director for Region 28, after being duly
signed by its authorized officer or 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 Respon-
dent Union to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order,
what steps the Respondent Union has taken to
comply herewith.
5 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall read " Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT encourage membership in Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America (Ind.),
Local Union No. 492, or any other labor
organization , by refusing to hire an applicant for
employment as a line driver because he is not a
member of the above -named Union , or has been
denied membership in the above -named Union,
or by discriminating in any other manner against
any employee in regard to hire or tenure of
employment or any term or condition of employ-
ment except as authorized by Section 8(aX3) of
the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed them in
Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring
membership in a labor organization as a condi-
tion of employment authorized in Section 8(a)(3)
of the Act.
WE WILL, jointly with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Ind.), Local Union No.
492, make whole Roscoe S. Cook with interest at
6 percent for any loss of earnings he may have
suffered by reason of our discrimination against
him in the period September 30, 1971, to January
12, 1972.
WESTERN GILLETTE, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 7011 Federal Building, U.S. Court-
house, P.O. Box 2146, 500 Gold Avenue. SW.,
Albuquerque, New Mexico 87101, Telephone
505-843-2508.
APPENDIX B
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
Western Gillette , Inc., or any other employer
within its jurisdiction, to discriminate against
Roscoe S . Cook, or any other employee, in
violation of the proscription of Section 8(a)(3) of
the Act.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce employees in the
exercise of rights guaranteed them in Section 7 of
the Act, except to the extent that such rights may
be affected by an agreement requiring member-
ship in a labor organization as a condition of
WESTERN GILLETTE, INC. 665
employment as authorized in Section 8(a)(3) of
the Act.
WE WILL, jointly with Western Gillette, Inc.,
make whole Roscoe S. Cook with interest at 6
percent for any loss of earnings he may have
suffered by reason of our discrimination against
him in the period September 30, 1971, to January
12, 1972.
ed to cause Gillette to refuse to hire Cook as a line driver in
violation of Section 8(b)(2) of the Act. Each of the
Respondents 2 filed an answer admitting certain allegations
of the complaint but each denied that it had engaged in
any unfair labor practices.
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(IND.), LOCAL UNION
No. 492
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 7011 Federal Building, U.S. Court-
house, P.O. Box 2146, 500 Gold Avenue, SW.,
Albuquerque, New Mexico 87101, Telephone 505
-843-2508.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Trial Examiner: This consolidated
proceeding was heard by me on May 23 and 24, 1972, at
Albuquerque, New Mexico, pursuant to charges filed by
Roscoe S. Cook, an individual, on December 20, 1971,
against Western Gillette, Inc., herein sometimes called
Gillette or Respondent Company, and against Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Ind.), Local Union No. 492,
herein sometimes called the Union or Respondent Union.'
On March 27, 1972, the Acting Regional Director for
Region 28 of the National Labor Relations Board, herein
called the Board, in behalf of the General Counsel, issued a
consolidated complaint alleging that Gillette since August
23, 1971, discriminated and refused to hire Cook as a line
driver because he was not a member in good standing of
Respondent Union, and thereby violated Section 8(a)(1)
and (3) of the Act. It further alleged that the Union at
various times commencing August 1971 caused or attempt-
r The charges were served on Gillette and the Union on December 21,
1971.
2 Reference to "Respondents" include both Respondent Company and
Respondent Union.
I find in accordance with the allegations of the complaint
and admissions of Respondents in their answers that
Western Gillette, Inc., has maintained a place of business
in Albuquerque, New Mexico, where it has been and is
engaged in the business of a common carrier of freight by
motor truck between various states of the United States,
that during the past 12 months Respondent Company in
the course and conduct of its trucking operations in New
Mexico derived in excess of $50,000 annually from its
operations to and from points outside the State of New
Mexico and also furnished services valued in excess of $1
million to the United States Department of Defense.
Accordingly, it is found that Gillette is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that it would effectuate the purposes
of the Act to assert jurisdiction herein.
II. THE UNION INVOLVED
I find in accordance with the consolidated complaint and
the admissions in the answers that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
This case concerns the difficulties of Roscoe S. Cook, the
Charging Party, herein, in securing employment with
Gillette as a line driver.3 Although Cook applied for a line
driver's job in June, 1971, 4 he was not hired by Gillette as
a line driver until January 12, 1972. Cook, prior to
submitting a formal application for a line driver's job, had
contacted Loren J. Cunningham, Gillette' s terminal man-
ager at Albuquerque , sometime in February, with reference
to securing work with Gillette. Cook's credited testimony
shows that he was employed as a line driver for about 10
years by Albuquerque Phoenix Express, known as Apex,
for about 10 years. Cook quit his employment with Apex in
October 1970. During his employment at Apex, Respon-
dent Union, commencing sometime in July 1970, conduct-
ed a strike and picketed Apex's premises in Albuquerque.
Cook left Apex's employment prior to the termination of
the strike. During his employment at Apex while the strike
was in progress, Cook crossed Respondent Union's picket
line from three to six times per week. Sometime during this
period, Donald Orozco, assistant business agent and
organizer, employed by Respondent Union, spoke to Cook
on two occasions. On the first occasion, Orozco ap-
3 A line driver is a truckdriver who operates motor vehicles including
tractors and trailers in long distance hauling of freight.
4 Hereafter all dates will refer to the calendar year 1971 , unless otherwise
specified.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proached Cook and another Apex driver at the Apex dock
and told them that when Apex was finally organized they
would be blackballed and would never get a union card.
The second occasion arose a few days later at the Apex
dock when Orozco shouted Cook' s name . When Cook
answered, Orozco said, "I want to tell you what a bunch of
your son-of-a-bitches did to my car; they threw acid on my
wife's car, and I don't appreciate that one bit." Cook
replied that he was not responsible for other people's
actions.
After leaving Apex, Cook left the State of New Mexico
and worked as a bulldozer operator. He returned to
Albuquerque in January and sought employment at
Gillette and at two other trucking concerns.
B. The Evidence
When Cook contacted Cunningham about a line driver's
job in February, he was informed that there were no
openings and that no applications were being accepted. On
June 11, Cook learned that applications were being
accepted and submitted a written applications to Gillette
for a line driver's job. A few days later, Cunningham called
Cook and invited Cook for a talk. Cook came to
Cunningham's office and was asked if he would be
interested in taking a relief dispatcher's job, replacing the
three permanent dispatchers employed by Gillette while
each of them took their vacations. According to Cook's
testimonial account, Cunningham said that such employ-
ment would last about 2 months and would lead to a
driving job saying, "I can't guarantee 100 percent but
almost." Cook replied that he would take that chance and
accepted the job. As a result, Cook commenced his
employment with Gillette as a relief dispatcher on June 28.
After working as a dispatcher for about 1 month, Cook
heard that a former Apex driver had trouble getting
membership in Respondent Union when he went to work
for another employer whose employees were represented
by Respondent Union.e As a result of this information,
Cook contacted Cunningham and told him about the other
driver's difficulties in "squaring" away with the Union. At
the same time, Cook informed Cunningham of his
activities during the Union's strike and picketing of Apex
suggesting that there might be some objection to his
membership in the Union. Cunningham replied that in
order for Cook to become a line driver for Gillette it would
be necessary for him to get squared away with the Union
and be in good standing before Gillette would employ
him.7 Cook thereupon told Cunningham he would contact
the Union and see Glenn Jones8 to determine his status.
Shortly thereafter, about the first week in August, Cook
went to the Union's offices and asked for Jones but was
referred to Orozco as Jones was not in the office. Orozco
did not recall Cook as one of the line drivers for Apex
during the strike but Cook explained the circumstances
5 GC Exh 2
8 Respondent Union has had a collective-bargaining agreement with
Respondent Company for a number of years The collective-bargaining
agreement includes a union -shop proviso
r Cunningham in his testimonial account repeatedly affirmed that this
was his understanding of the contractual provision and that he probably
made statements to this effect to Cook Accordingly, I credit Cook's
testimony in this regard.
and that he was there in an attempt to "get right" with the
Union. Orozco advised Cook to talk to the former Apex
warehousemen who manned the picket line to persuade
them to vote for him when his membership application
came up for a vote. Cook thereafter did contact one such
person.
About a week later, Cook again visited the Union's office
and found Glenn Jones in his office. He asked Glenn Jones
what he would have to do to get right with the Union.
According to Cook, Glenn Jones was quite bitter because
Cook had crossed the Union's picket line and told Cook to
get a nonunion job. A day or two later, Cook told
Cunningham about his conversation with Jones saying that
it appeared that he was going to have a serious problem
about getting a card. Cunningham replied that Cook would
have to get right with the Union and have a card before he
could start driving.
On July 29, Cook was given a road test and a written
examinations by Gillette's safety supervisor and as a result
received a driver's certification.10 On the same day, Paul
Reppert and Jim Rupe were also given the above tests.
Cook testified that about the middle of August, Cun-
ningham told him that Gillette was going to hire four
additional line drivers and that Cook would be in line for
the first vacancy. Cunningham stressed , however, that
Cook had to get straight with the Union and get his own
card so that he would be in good standing.
It was stipulated by all parties that Gillette did employ as
line drivers the following men on the following dates:
Paul B. Reppert August 23
Alvin J . Rupe September 30
Carl W. Reinhardt October 25
It was stipulated that Reppert, Rupe, and Reinhardt at
the time they filled out Gillette's application for employ-
ment each stated that they were a member of Respondent
Union, while Cook did not respond to this question on the
application. It was also stipulated that Reppert's applica-
tion was dated May 7 and Reinhardt in applying for a line
driver's job in 1969 stated that he wished casual work only.
After Reppert was employed, Cook asked Cunningham
whether he would go ahead of Reppert in seniority when
he became a line driver. Cunningham replied that Cook
would be senior to Reppert.ii Again Cunningham told
Cook that he would become a line driver as soon as he got
straight with the Union.12
It was stipulated that on August 23, Cook went to
Respondent Union's hall, paid $83 for the Union's
initiation fee, I month's dues , and submitted an applica-
tion for membership in the Union. A few days later, Cook
asked Cunningham to put him on as a line driver as he was
aware that more hiring was to be done and he wanted to
preserve his seniority ahead of Reppert's. At this time,
s Glenn B. Jones, secretary-treasurer of Respondent Union.
B G.C Exh 3
10 G C Exh. 4(A) and (B)
11 Cunningham denied this statement . Although I would credit Cunning-
ham in this regard , the resolution of this credibility question is unnecessary
to arrive at a decision in this case
12 During this entire period to December , Cook continued to be
employed as a relief dispatcher by Gillette.
WESTERN GILLETTE, INC.
Cunningham "hedged" from confirming Cook's seniority
position saying the company would have to see about it.
It was stipulated that Cook was notified13 by the Union
on September 27 that his application for membership was
referred to the Union's Executive Board for investigation
and that he was requested to appear before it at 6:30 p.m.
on October 4. Cook appeared before the Executive Board
as scheduled. Cook answered questions about his conduct
during the strike at Apex in 1970 and pointed out that he
quit Apex during the strike. At the conclusion, Cook was
informed the matter would be placed before the next
membership meeting and he would be informed of the
results.
It was further stipulated that in a letter dated October
12,14 the Union notified Cook that the membership
rejected his application for membership and returned his
check for $83.
After Cook received notice of his rejection for union
membership, he consulted an attorney. He asked Cunning-
ham whether he would sign a statement to the effect that
Jones had told him not to hire him because of his union
status. Cunningham refused and denied that he had told
Cook that.15
Shortly before October 25, the day Reinhardt was put on
as a line driver, Cook asked Cunningham concerning his
status as a line driver and Cunningham replied that they
were holding a spot for him as soon as he got straight with
the Union. Cunningham added that he would contact Bill
Lacey 16 and see what could be worked out. When Cook at
a later date asked Cunningham what Lacey had said,
Cunningham replied that it was a complicated matter and
that it was in the hands of Lacey and Gillette's president.
On October 25, Cook met with Dewey Gent, Gillette's
director of line operations, and asked him whether he knew
what his status as a line driver was going to be. Gent did
not answer and it seemed to Cook that he knew nothing
about Cook's difficulties. Cook then explained the details
to Gent who then replied that he would take the matter up
with Lacey and give Cook an answer. Cook received no
word from Gent until the latter contacted him about
December 22 and asked him concerning the charges which
Cook had filed with the Board on December 20. Cook
replied that he had told Cunningham that if he had not
heard by December 17 he was going to file charges with the
Board and as he had not heard by then, he did file them.
Gent replied that as of the first of the year Cook was going
to be placed on the call board as a casual line driver and
asked Cook if Cunningham had so informed him. Cook
answered that he thought he should be placed on the call
board as a regular line driver ahead of Reppert. Gent then
asked Cook if Cunningham had told him that another
dispatcher had been hired to take Cook's place. Cook
answered that Cunningham was on vacation and had not
mentioned this to Cook.
On cross-examination, Cook explained that from the
13 G.C. Exh. 5.
14 G.C. Exh. 6.
18 Cook's testimony in this regard was that Cunningham in an earlier
conversation had stated Glenn Jones would not recommend putting Cook
to work when a vacancy with Gillette arose.
is Billy M. Lacey, Gillette's director of the Eastern division.
17 Both Cook and Cunningham contradicted themselves at various times
667
time he went to work there were four dispatchers including
Cunningham and himself; that Cunningham was involved
in other matters and did little dispatching after Cook was
employed; that in December, Cook became aware that a
fifth dispatcher was hired to replace Cook if he went on to
do some other work; that the first time he went to the
union hall to see about his status was August 23, the day
Reppert was hired;17 that when Orozco spoke to him at the
Apex picket line in 1970, Orozco told him that he would be
blackballed from the Union; that when he talked with
Orozco at the union hall about his status, Orozco told him
that the Union could not keep him from getting a job with
an employer saying that the Union, Local 492, couldn't
keep Cook from driving.
David Jones, a line driver, employed by Gillette, testified
that he was a member of the Union; that he saw Cook
taking the road test to become a line driver; that he asked
Cunningham if Cook was going to start driving "because
he didn't have a union card"; that Cunningham "said
something to the effect that Jones said to hold up on it";
David Jones further testified that he did not ask Cunning-
ham what he meant by the above remark; that a few days
later some line drivers were discussing Cook and one of
them asked Cunningham about Cook and Cunningham
replied, "I don't know, it is up to them." On cross-
examination, David Jones testified that it was his under-
standing that in order to work as a line driver, a union card
was necessary; that when he talked with Cunningham, he
got the impression that Cunningham felt that this was not a
matter to be discussed with David Jones; that he (David
Jones) held no union office at that time and that it was
possible that Cunningham was referring to Larry Jones,
Gillette's labor relations representative.18
Loren L. Cunningham, referred to as Bill Cunningham
throughout this proceeding, testified that: he was Gillette's
terminal manager at Albuquerque; he had rated Cook as a
good driver because of his experience and as there were no
openings for a line driver when Cook applied and Cook
had said that he was interested in the dispatcher's job on a
temporary basis, he hired Cook as relief dispatcher; he told
Cook that he would be considered for a line driver's job
after the relief dispatcher job ended ; he estimated the relief
dispatcher job would last about 8 weeks; he told Cook that
whether he took the relief dispatcher job or not would
make no difference with regard to his prospects for a line
driver's job; he did not know that Cook had crossed the
union picket line when Cook worked at Apex; the
dispatcher's job did not require union membership; after
Cook was employed as relief dispatcher he talked with
Cook about his chances for a line driver's job, telling him
that he would be in line for one but not that he would have
the first vacancy; after he learned Cook had worked
behind the Union's picket line at Apex, he told Cook that
he could not hire him unless he became a member in good
standing with the Union; he said this to Cook because he
as to when Cunningham was told by Cook about his crossing the Union's
picket line at Apex. Considering their testimony as a whole, I find that
Cunningham received this information about I week before August 23.
18 I hold David Jones' testimony as inadmissible hearsay insofar as
Respondent Union is concerned and will not consider this testimony in
deciding the allegations against the Union.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thought that a line driver had to become a member of the
Union in good standing 30 days after being employed and
that he would not hire Cook or any other applicant at that
time if he had reason to believe that the applicant could
not obtain a union card after 30 days; he told this to Cook
on several occasions ; he did not check this statement with
his superiors; he told Cook it would be a good idea to go to
the union hall to straighten himself out with the Union; he
told Cook if he were straightened out he would have no
problem in securing a line driver's job if a vacancy arose;
Cook told him of his conversation with Orozco; that he
reported that Cook was having difficulty securing member-
ship to Gent and Larry Jones; he found out about Cook's
difficulties approximately August 10 and reported the
matter to Gent about August 15:19 the decision to hire
Reppert was made by Gent and himself; after Cook
informed him that he had tendered his initiation fee, he
talked with Glenn Jones; Glenn Jones asked him if he
knew that Cook did not have union membership ; he told
Glenn Jones that Cook informed him that he had tendered
his initiation fee; Glenn Jones replied that the executive
board had turned Cook down and that he would never get
a union card as the Executive Board would not vote to give
him one; sometime in September Glenn Jones had a
meeting scheduled with another truck line whose office was
adjacent to Cook's and before the meeting began, Glenn
Jones visited with Cunningham and informed him that the
membership had voted not to accept Cook into member-
ship; he informed Gent and Lacey that Cook had been
turned down for membership; and that he reported Cook's
difficulties concerning membership to Gent after August
23 rather than on August 15.
Cunningham further testified that in September, Glenn
Jones called him and said that he would shortly be meeting
with Larry Jones, Respondent's vice president in charge of
labor relations , at a San Francisco conference and would
discuss Cook with him; that Gent and himself made the
decisions to hire Rupe and Reinhardt; that he had
informed Gent that he had told Cook of his understanding
that it was necessary to be a member of the Union in good
standing before Cook could be employed as a line driver;
that Gent told him to consult Gillette's labor relations
department as they handled these matters for Gillette; that
he received no advice from Respondent Gillette 's labor
relations department in this matter contrary to his belief;
Cunningham continued his testimonial account by affirm-
ing that Cook was not one of the applicants considered for
the line driver vacancy for which Reppert was hired
because of Cook's lack of union affiliation . Cook denied
that Glenn Jones had told him not to put Cook' s name on
the call board as a line driver. Cunningham also denied
that he told Cook at any time that he was "first" in line for
a job opening but admitted saying that Cook was in line
for a line driver's job and that by taking the dispatcher's
job he would be almost 100 percent sure to get such a job.
Cunningham concluded his testimony by stating that he
did not consider Cook for the September 30 vacancy for
which Rupe was hired , nor the October 25 vacancy for
which Reinhardt was hired because Cook was not a
member of the Union.
Billy M. Lacey, when called as a witness by the General
Counsel , testified that he was director of Gillette 's Eastern
division since January 1, 1972, and for 4 years prior to that
he was Gillette's supervisor of industrial relations ; that at a
joint council meeting on September 25 or 26 in Phoenix,
Arizona, he had a discussion concerning Cook with Glenn
Jones ; that Glenn Jones asked him if he was familiar with
the problems Gillette had with Cook; that he told Glenn
Jones that Cunningham had called him a week or so earlier
to tell him that Cook "was desirous of going on the road
and Mr . [Glenn) Jones had told Mr. Cunningham that Mr.
Cook was not a member of the local union "; that Glenn
Jones then told him (Lacey) that he would appreciate not
using Cook as a line driver or dispatcher and that Cook
was not a member of the local union; Glenn Jones also
told him that the Union had problems with Cook in the
past and that he thought Cook was not the kind of person
Gillette would employ; and that Cook was the kind of guy
that would cause Gillette trouble "down the road." 20
Lacey testified further that he reported the substance of
this conversation to Gent.
On cross-examination , Lacey admitted that Glenn Jones
told him that he wasn 't going to tell him how to run his
business; that Glenn Jones said that in the event Cook was
employed Gillette would have a problem with him down
the road , not that the Union would or that Glenn Jones
would have problems ; that he reached no agreement with
Jones concerning Cook; that he told Glenn Jones that
Cook was going to be retained as a dispatcher ; and that
Glenn Jones said he would discuss Cook with Gent at a
meeting scheduled in the near future . Lacey acknowledged
that Glenn Jones made no promises or threats and left the
decision as to Cook's employment to the company.
Dewey N. Gent, called by the General Counsel , testified
that he was Gillette's director of line operations; that in
October he talked with Cunningham about Cook; that
Cunningham told him that Cook had applied for a union
card and that Glenn Jones had told him (Cunningham)
that Cook was denied membership . Gent then testified as
follows : "I believe Mr. Cunningham told me that Mr.
Jones had requested that we not use Mr . Cook as a line
driver or as a dispatcher." 21 Gent then testified that he told
Cunningham to take the matter up with Gillette 's labor
department ; and that he met Glenn Jones at a meeting in
San Francisco in November outside one of the meeting
rooms when they were attending an area conference of the
industry. Gent, having heard from Lacey concerning
Cook's problem , was informed by Glenn Jones that Cook
was denied membership in the Union . Gent testified that
Glenn Jones also said that "unofficially" he would prefer
that Gillette "not be using him as a line driver or
dispatcher . He did not think that Western Gillette needed
this kind of a man around ." Gent admitted that he was
told by Glenn Jones that the Union could not run the
19 Cunningham later contradicted himself in this regard saying he did 21 This testimony contradicts Cunningham's testimony in this regard.
not contact them until after August 23 However , it is entitled to little weight because of its equivocal nature, i.e., "I
20 In an affidavit given to a Board agent , Lacey placed this phrase in believe ." Moreover. I credit Cunningham in this regard.
quotes apparently to indicate that these were the words of Glenn Jones
WESTERN GILLETTE, INC.
company's business and it would be up to Gillette. Gent
further testified that there was a discussion pursuant to a
suggestion by Glenn Jones that Cook be hired and
terminated within 30 days. This was rejected by Gent as it
would get the Union and the company in trouble.
Questioned by the Trial Examiner, Gent stated that he
knew that under the law Gillette could hire Cook even
though he was not a union member and that after 30 days
Cook's obligation would be only to pay union dues if
membership was refused. On cross-examination, Gent
conceded that no agreement was reached with Glenn Jones
concerning Cook.
Nello Pozzobon, called as a witness by Respondent
Gillette, testified that he was Gillette's vice president of
operations; that Gent was directly under his supervision;
that before transferring a dispatcher to a line driver's job
they would require another dispatcher to replace him; that
Cook was placed as a line driver when Gent said he had a
dispatcher to replace Cook and that this occurred the latter
part of December or early in January 1972.
Malik Tahair, called by Respondent Gillette, testified
that since March 1972, he has been Respondent Gillette's
personnel director; and that prior to that he had held the
position of personnel manager. It was established through
Tohair's testimony that Reppert filed his application for
employment with Gillette on May 7 which was about I
month earlier than Cook's application and that Reinhardt
filed one application in 1969 for a casual job but filed a
new application for a permanent job on October 1 some
months after Cook's application. Rupe filed his application
for employment on July 8 about I month after Cook
submitted his written application.
Gent, recalled by Respondent Gillette, testified that he
notified Cunningham sometime in August that there would
be an increase in the number of line drivers; it was the
practice of the company to give preference to the
satisfactory casual drivers; he told Cunningham that as
terminal manager it was his responsibility to select the new
line drivers; although Cunningham discussed the hiring of
the line drivers with him, it was Cunningham himself who
made the decision to hire Reppert, Rupe, and Reinhardt;
and that Gent did not think Cook was entitled to
consideration when Reppert was hired because Cook was
working as a dispatcher at the time. On cross-examination,
Gent conceded that Cook had never been notified in
writing that his status had been converted from relief
dispatcher to regular dispatcher and that he told Cook in
December that he would be terminated as a dispatcher in
January 1972, when he would be placed on the board as a
casual line driver; that as a result of a decision by his
superiors about January 11, 1972, Cook was placed on the
board as a regular line driver rather than as a casual.
Cunningham, recalled by Respondent Gillette, testified
that in numerous conversations Cook indicated to him that
he would prefer to commence his employment with the
Company as a line driver when he had union membership
as he desired to keep in the good graces of the Company.
Cunningham further testified that Glenn Jones "did not
express to me not to employ him. He did express that he
22 This is a correct statement of the General Counsel's contention and I
find that to be a fact based on not only Cook's credited testimony but also
669
did not have a membership card." Quesitoned further,
Cunningham stated that Cook knew that a line driver was
going to be hired on August 23; that Cook did speak to
him prior to August 23 about a line driver's job; and that
he (Cunningham) told Cook that he could not hire him
because he was not a member of the Union.
C. Analysis and Conclusions
The essential facts in this case are undisputed. The
evidence shows that the Union bore animus toward Cook
because he crossed its picket line at Apex in 1970 when he
was employed as a line driver by Apex. After absenting
himself from the area for several months, Cook returned
and made a written application for employment with
Western Gillette in June 1971, at a time when there were
no vacancies as a line driver. Cunningham offered Cook a
position as relief dispatcher and Cook accepted this job on
a temporary basis believing that this would help him secure
a line driver job. Cunningham acknowledged that it would
help. Both Cook and Cunningham were well aware that the
Union and Western Gillette were parties to an agreement
which included a union-shop proviso. Cook, shortly after
going to work as a relief dispatcher, learned that he might
have some difficulty in securing membership in the Union.
He quickly apprised Cunningham of the facts. The'
evidence shows, as Cunningham conceded, that he under-
stood the terms of the labor agreement between Western
Gillette and the Union required membership and good
standing in the Union as a condition of employment. The
record amply demonstrates and Cunningham repeatedly
asserted that Cook was not hired as a line driver on August
23, September 30, and October 25 because Cook was
unable to secure membership in the Union.
Respondent Gillette in its brief, which I have read with
extreme care, skillfully advances arguments in an attempt
to demonstrate that Cook failed to secure employment as a
line driver with Western Gillette prior to January 1972, for
various other reasons . The main thrust of the brief,
however, is predicated on erroneous views of Board law as
developed over the years and approved by reviewing
tribunals. Additionally, certain factual conclusions ad-
vanced in the brief are unsupported by the evidence. At the
very outset, Respondent Western Gillette asserts that the
General Counsel's "basic" tenets" are: (A) that Cook was
in fact an applicant for a line driver position which became
available at Albuquerque on August 23, 1971; 22 (B) that
the company gave the job to another applicant without
having valid business reasons for such actions; and (C)
that Cook was denied the line driver job because he was
not a member of the Union.
As I conclude that Cook was indeed denied a line driver
job because he was not a member of the Union, the
General Counsel's contention, "C" above, has been
sustained. Even though Western Gillette may have valid
business reasons for giving the job to another applicant as
contended in "B" above, nevertheless, these "valid"
business reasons were not the sole reasons for the failure to
hire Cook. The Board and the courts are in accord that
by the open admissions of Cunningham.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where an employer discharges or refuses to hire for mixed
motives, one of which violates the law , a discharge or
refusal to hire cannot be justified.23
Respondent Gillette argues that one of its valid reasons
consisted of a policy against transfer of employees between
different permanent jobs without a replacement . I do not
find the evidence established that such a policy was in
force, nor do I find that the evidence established that Cook
had permanent status as a dispatcher . On the contrary, the
evidence shows that Cook continually solicited transfer to
a line driver job and regarded his job of dispatcher as
temporary . Gillette also contends that Reppert , as a casual
driver, was entitled to preference over Cook when he was
hired on August 23. The evidence fails to reflect that this
factor entered into the selection of Reppert . Cunningham's
testimony shows that Cook's lack of union affiliation was
the controlling element . It would appear , therefore, that
Cook would have been hired as a line driver on August 23
rather than Reppert but for Cook's failure to achieve union
membership. At the very least, it is clear that Cunning-
ham's testimony shows Cook was given no consideration
for the August 23 vacancy because of his lack of union
affiliation . Gillette also contends that when Reinhardt was
hired as a line driver , Cook was not an eligible candidate
because he was still working as a permanent dispatcher
and had never asked for a replacement. While I do not find
that it was necessary for Cook to ask for a replacement, it
seems rather obvious that Cook 's recurring requests to
Cunningham for a line driver's job showed that he wanted
to be relieved as a dispatcher and transferred to a line
driver position. At any rate, the record fails to disclose that
this factor entered into Cook's failure to secure a line
driver job. In short , I regard the raising of the issues
concerning business reasons as afterthoughts which did not
enter into the failure to hire Cook as a line driver prior to
January 1972.
Gillette 's brief requests the Trial Examiner to consider
the record as though Cook had been a member of the
Union during all of the period involved herein and to
determine if he would then be entitled to a line driver job. I
regard this as idle speculation which would pose a different
set of circumstances and it does not warrant consideration.
The fact remains that Cook's failure to become a member
of the Union was the operating factor in Cunningham's
choice of line drivers . Cunningham alone had been
delegated the authority on behalf of Respondent Gillette to
hire Cook and he refused to hire or even consider Cook on
August 23, September 30, and October 25, because Cook
was not a member of the Union. Respondent is bound by
Cunningham's conduct and its refusal to hire Cook on the
foregoing occasions constituted violations of Section
8(aX3) and (1) of the Act.
With regard to the allegations of the consolidated
complaint that the Union was in violation of Section
8(b)(2) of the Act, I find that the General Counsel has
failed to sustain by a preponderance of the evidence the
proof required to warrant a finding that the Union has
violated the Act in this respect.
Having in mind that the evidence established that
Cunningham had exclusive authority to hire line drivers at
the Albuquerque terminal , it was necessary for the General
Counsel to show some pressure or coercion emanating
from the Union upon Cunningham . The record shows that
Cunningham sought Gent 's advice and assistance with
regard to Cook. Gent told him to take the matter up with
Gillette's labor relations department . Gent also told
Cunningham that it was his job to select the driver.
Cunningham , whom I fully credit, testified that at no time
was he approached by any union official with either a
request or demand not to hire Cook. The only evidence
upon which the General Counsel can rely on this aspect
concerns Glenn Jones ' conversations with Lacey and Gent.
In each case , Jones concluded his conversation by stating
that it was up to the company to make its decision whether
to hire Cook. I do not infer from Jones' deprecation of
Cook that he was coercing Gillette in an attempt to cause
Gillette to refuse to hire Cook. I conclude , therefore, that
the evidence fails to demonstrate any overt acts which
would warrant a finding of coercive overtones . According-
ly, I recommend that the complaint against the Union be
dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent Company, Western Gillette, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America (Ind.), Local
Union No. 492 is a labor organization within the meaning
of Section 2(5) of the Act.
3. By refusing to employ Roscoe S. Cook on August 23,
1971, September 30, 1971, and October 25, 1971, Respon-
dent Company discriminated against him and thereby
encouraged membership in the Union and thereby engaged
in unfair labor practices proscribed by Section 8(aX3) and
(1) of the Act.
4. The above-named Respondent Union has not
caused, or attempted to cause, Respondent Company to
discriminate against the said Roscoe S . Cook, and has not
engaged in unfair labor practices within the meaning of
Section 8(bX2) of the Act.
THE REMEDY
Having found that Respondent Company has engaged in
certain unfair labor practices , I shall recommend that it
cease and desist therefrom and that it be required to take
certain affirmative action designed to effectuate the
policies of the Act.
I shall make no recommendation that Cook be made an
offer of employment in view of the fact that he was
employed by Respondent Company as a line driver on
January 12, 1972, and the record shows that he is currently
so employed . As Respondent Company unlawfully dis-
criminated against said Roscoe S . Cook from August 23,
1971, until January 12, 1972, it will be recommended that
Respondent Company make him whole for any loss of pay
that he may have suffered by reason of Respondent
23 N L R B v. Symons Manufacturing Co, 328 F 2d 835, 837 (C.A. 7),
N.LR.B. v. Fairview Hospital, 443 F.2d 1217 , 1219 (C.A.7).
WESTERN GILLETTE, INC. 671
Company's discrimination against him, by paying to him a
sum of money equal to that he normally would have
earned as wages from August 23, 1971 , until January 12,
1972, less his net earnings during said period. The amount
of backpay due shall be computed according to Board
policy set forth in F. W. Woolworth Company, 90 NLRB
289, with interest on backpay computed in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.
Payroll and other records in possession of Respondent are
to be made available to the Board or its agent to assist in
such computation.
[Recommended Order omitted from publication.]