Howard Sober, Inc.

National Labor Relations Board - Board Decisions

Nov 29, 1967

168 N.L.R.B. 582 (N.L.R.B. 1967)

582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howard Sober , Inc. and William J. Hlay
Local 773, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America
and William J. Hlay. Cases 4-CA-4209 and
4-CB-1320
November 29, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On August 30, 1967, Trial Examiner Arthur E.
Reyman issued his Decision in the above-entitled
proceeding, finding that the Respondents had not
engaged in the unfair labor practices alleged in the
complaint and recommending dismissal of the com-
plaint, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Charging Party filed ex-
ceptions, and the Respondents filed answering
memoranda to the exceptions.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the an-
swering memoranda, and the entire record in the
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the complaint herein be, and it hereby is,
dismissed in its entirety.
General Counsel of the National Labor Relations Board,
on behalf of the Board, by the Regional Director for Re-
gion 4 issued an Order Consolidating Cases and a Con-
solidated Complaint and Notice of Hearing. The con-
solidated complaint alleges that the Respondent Union
did engage in, and is engaging in, unfair labor practices
within the meaning of Section 8(b)(1)(A) and (2) of the
Act; and that the Respondent Company did engage in,
and is engaging in, unfair labor practices within the mean-
ing of Section 8(a)(1) and (3) of the Act. Each Respond-
ent filed timely answer to the consolidated complaint,
effectively denying the alleged violations of the Act.
Pursuant to notice, the consolidated cases came on to
be heard before me at Easton, Pennsylvania, on June 27,
1967, the hearing being closed on the same day. At the
hearing the General Counsel and each of the Respond-
ents were represented by counsel. Hlay, the Charging
Party, appeared as a witness on his own behalf and for the
General Counsel. Each party was afforded full opportuni-
ty to call, examine, and cross-examine witnesses, to
present evidence relevant to the issues, to argue orally
upon the record, and to file briefs. Briefs filed on behalf of
the General Counsel and the Respondents have been
carefully considered.
Upon the record as a whole, and from my observation
of the witnesses, I make the following:
FINDINGS OF FACT
1. THE RESPONDENT COMPANY AND THE RESPONDENT
UNION
a. Respondent Company is, and at all time material
herein has been, a Michigan corporation engaged in the
business of transportation of motor vehicles, including
trucks, both by truckaway and driveaway movements. It
maintains its principal place of business in Lansing,
Michigan, and has terminals in various States, including
one located in Allentown, Pennsylvania, this terminal
being the only terminal involved in this proceeding. It an-
nually performs more than $50,000 worth of services in
States outside Pennsylvania. This Respondent is, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
b. Respondent Union is, and has been at all times
material herein, a labor organization within the meaning
of Section 2(5) of the Act.
TRIAL EXAMINER'S DECISION
ARTHUR E. REYMAN, Trial Examiner: This is a
proceeding under Section 10(b).of the National Labor
Relations Act, as amended, 29 U.S.C. Section 151, et
seq., herein called the Act.
On November 22, 1966, William J. Hlay, an individual,
filed a charge against Howard Sober, Inc., herein some-
times called the Company. The same individual on
February 21, 1967, filed a charge against Local 773, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, herein sometimes
called Local 773 or the Union. Each charge asserted that
the Company (Case 4-CA-4209) and the Union (Case
4-CB-1320) "have engaged in, and are engaging in, cer-
tain unfair labor practices affecting commerce" as set
forth and defined in the Act. On May 10, 1967, the
H. THE ALLEGED UNFAIR LABOR PRACTICES
The consolidated complaint alleges, and the respective
answers of the Respondents admit, that James Long has
been Allentown Terminal Manager of Respondent Com-
pany at all times material herein, and has been an agent of
this Respondent, acting on its behalf, and a supervisor
within the meaning of Section 2(11) of the Act; and that
during all such times John Wursta has been president of
Respondent Union and has been an agent of Respondent
Union, acting on its behalf and an agent within the mean-
ing of Section 2(13) of the Act.
The consolidated complaint alleges, and the respective
answers of the Respondents deny, that on or about Sep-
tember 15, 1966, Respondent Union, by its agent,
Wursta, caused Respondent Company to refuse to hire
William Hlay, and the Respondent Employer since that
time has refused and continues to refuse to hire Hlay
168 NLRB No. 77
HOWARD SOBER, INC.
because Respondent Union, by its agent, Wursta, caused
Respondent Company to refuse to hire Hlay because
Hlay engaged in certain intraunion activities within
Respondent Union; and that the Respondent Company
has refused and continues to refuse to hire Hay for this
reason. The activities of Wursta, and the refusal of the
Respondent Company to hire Hlay are alleged to be
violations of Section 8(a)(1) and (3) on the part of the
Company, and violations of Section 8(a)(1) and
8(b)(1)(A) and (2) on the part of the Union, all such viola-
tions alleged to be in contravention of Section 2(6) and (7)
of the Act.
As an affirmative defense, the Respondent Union in its
answer denies that it at any time caused the Respondent
Company to refuse to hire William J. Hlay or that it took
any action whatsoever at any time in regard to the em-
ployment of Hlay by the Company or any other em-
ployer; that the Union has no control over the hiring of
employees by the Company and has never sought to
establish or create such control or to influence the Com-
pany in any way whatsoever in regard to the hiring of em-
ployees; and there is no warrant or justification for any al-
legation that the Union caused the Company to refuse to
hire Hlay for any reason whatsoever - that the hiring of
employees is a matter for the decision of the Company
and the Union has no part therein.
Counsel for the General Counsel, in her opening state-
ment, clearly and succinctly stated the case:
Miss Eames: Mr. Examiner, this case concerns a
refusal to hire. It is the position of the government
that the Employer had made a commitment to hire
the charging party, that because of the charging par-
ty's opposition activities within the local Union, the
local Union asked or demanded that the Employer
not hire the charging party; that the Employer
thereupon reneged upon his commitment to hire the
charging party; and that the reasons for this reversal
of position was the request or demand of the Union,
and the reason for the Union's request or demand
was the charging party's intra-union opposition ac-
tivities.
A. The Intraunion Activities of Hlay
William J. Hlay is employed by Penn Dispatch, Inc., an
Allentown trucking firm, and, in his words, ". . and
leased, along with the truck I drive, to Trexler Lumber
Company, 430 North 16th Street, Allentown, Pennsyl-
vania." He is a member of Respondent Union, Local 773,
and has been for approximately 3-1/2 years.
He related some union activities engaged in by him. He
testified that approximately 3 years ago, in December
1964, after he had been in the organization for about 9
months, he was very active in campaigning for members
who were running for office. He supported a slate of can-
didates who were running against the incumbent officers,
and, during the course of his campaigning , distributed
literature for his candidates, called at barns where em-
I In connection with the letter of May 16, 1965, directed to the secre-
tary-treasurer, there is in evidence a document headed "Charges are
based on the proceedings from May 9, 1965," which reads as follows:
At approximately 9:10, our president stated that in view of the fact
that there were not enough members present to conduct the meeting,
he would entertain a motion to adjourn Under the question, it was
asked if the meetings over the summer months would be adjourned
until September also, and the reply was yes. The motion was passed
with only one vote opposing it. The meeting was adjourned along with
583
ployees who were also in Local 773 and members thereof
were located, talked to the opposition slate "and natu-
rally, I done the best I could for the opposition."
Twelve members of the Union on February 17, 1966,
preferred charges against John Wursta, president of the
Union, "in accordance with the Constitution and By-laws
of Local Union No. 773," the first count of the charge al-
leging that Wursta had intentionally misled the member-
ship of the Local for his own personal gain and others
similarly situated in connection with paying $50 per week
to each person entitled to an automobile from the Local
in order to maintain the car rather than have the Local
continue to rent the cars as had been the practice; and a
second count, concerning a violation of proper procedure
under the constitution and bylaws of Local 773 in the
conduct of a meeting of members of the Local. Hlay was
one of the 12 men who signed the charges and the one
who presented them at a hearing before the local union
executive board acting as the governing board to deter-
mine whether or not there was merit to the charges as
preferred. Wursta, as president and exofficio member of
the executive board, did not sit at the hearing, another
member being appointed in his place. Eventually, the
charges against Wursta were dismissed.
Hlay proposed an amendment to the bylaws of the
Local Union dated September 12, 1964, submitted over
the signature of Hlay and some 30-odd other members of
the Local to amend the local union bylaws to provide that
no person would be entitled to vote unless a member in
good standing of the Local Union for at least 3 months
prior to day of voting and to provide that a member
should not be entitled to vote had he been on a
withdrawal card and had not presented it to the Local
Union and been reinstated at least 3 months "prior to the
day of voting." According to Hlay, and his testimony is
not disputed, the amendment was presented at one of the
regular meetings and read. He said that the constitution
also stipulates that such an amendment should be read at
two meetings and at the second meeting be voted on; that
the amendment was read at the first meeting after its sub-
mission but at the second meeting ". . it was just
discussed and there was no vote taken on it by the mem-
bership at that time." Hlay was not sure of the date of the
second meeting because, he said, meetings were held on
the second Sunday of each month and he could not recall
whether the amendment was presented the first time at
the September meeting or the October meeting. In any
event, it was presented to the membership prior to the
1964 election. The purpose of the introduction of the
proposed amendment, according to Hlay, was to give the
opposing candidates an equal opportunity to be elected to
office.
Subsequent thereto, a letter dated May 16, 1965,
directed to the secretary-treasurer of Local Union 773
and signed by some 20 members of the Local , including
Hlay, protested action taken by Wursta at a meeting of
the membership held on Sunday, May 9, 1965.1 Under
date of June 15, 1965, Paul M. Barnard, secretary-treas-
the other meetings for the summer months. Several violations have
occurred in the above proceedings that are outlined in the charges en-
closed.
It is understood the president had every right to start the meeting
as early as he did because the starting time is set at 9:00. Ordinarily
they never start until much before 9:30 and by then, enough members
are present to conduct the meeting. Sunday being a religious day,
members have services to attend.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
urer, addressed a letter to Hlay, referring to the protest
"we received on May 17, 1965, and you signed, in re-
gards to the action taken by our president John Wursta,
at the time a regular monthly meeting was scheduled, but
was called off, was read at our executive board meeting
on Friday, June 11, 1965." This letter went on to state
the circumstances of the protest. A section of the bylaws
regarding a quorum and another section regarding regular
meetings were mentioned, and the letter concluded by ad-
vising Hlay that ". . . at our regular monthly meeting on
Sunday, May 10, 1964, [sic] a motion was made and
second. `That all future regular meetings, be suspended
for June, July, and August."' Under the date of June 21,
1965, a letter signed by 13 members of the Union was
sent to Barnard acknowledging receipt of his letter of
June 15, commenting on it, and concluding: "Finally,
because the Local Union Executive Board did not take
action within the time limit prescribed in Section 18:03 of
our by-laws, this matter has been forwarded on to the
Joint Council and also to our General President so that
this matter may be cleared up without delay."
The incidents related above constitute the full extent of
Hlay's activities in connection with intraunion affairs as
involved herein. Obviously, he was politically opposed to
President Wursta and the Wursta administration.
B. Hlay's Efforts to Obtain Employment
with the Company
Hlay, as an employee of Penn Dispatch , Inc., for the
approximately 3-1/2 years prior to the hearing herein,
delivered lumber for Trexler Lumber Company (Trexler)
to the Respondent Company's terminal in Allentown,
such deliveries being made two or three times a week.
During October 1965 , he became desirous of changing
jobs and several times thereafter asked James Long, Al-
lentown terminal manager of the Company , for employ-
ment. His reason for wanting to change his job was
because he had learned that he could make from $20 to
$25 more per week working for the Respondent than he
was making as an employee of Penn Dispatch. On the
first several occasions when he asked Long for a job,
Long at least twice answered facetiously that the only job
open was his, to which Hlay replied in kind , saying he
would take it . More seriously , Hlay testified that Long
told him that he had a waiting list, but suggested that Hlay
renew his request from time to time and he would keep
Hlay in mind. Hlay followed this suggestion and did
frequently request Long for employment. Hlay said that
sometime in July 1966 , Long hired a person known to
Hlay only as "Skeeter," and that , when he again ap-
proached Long, he was told by the latter that he had
promised the man a job and could not put Hlay on ahead
of him . About a month later it appears that Long hired
one Tom Wolfinger ; that he again approached Long and
told him that he thought he was going to get the job, that
he was on the list; Long replied that he was on the list and
and that he had not forgotten about Hlay.
Hlay related that shortly thereafter on a day when he
was unloading a truck Long came out of his office and
asked Hlay how old he was, that he replied that he was
38, and that Long said nothing more but returned to his
office . On this occasion , Hlay said he spoke to several
members of Local 773, who remarked to him that it
looked like he (Long) was going to put him on , and Hlay
replied that he certainly hoped so. Hlay then approached
a friend of his in charge of ordering lumber for the Com-
pany, Russell Santee, and asked him if he could help him
out, "... if he would not go to Mr. Long and ask Mr.
Long if he would give me a job there. Mr. Santee said,
yes, he would." Hay said that Santee took him into the of-
fice, told Long that he was looking for a job and that Long
replied that he knew it, had him on the list, had him in
mind, ". . . and I will do what I can for him."
Russell Santee, called as a witness by counsel for the
General Counsel, testified that he had been employed at
the Allentown terminal of the Company for about 22
years and that he presently is yardman, responsible for
getting the equipment ready for the men working on the
line and checking in the equipment as it comes in on
trucks. He said that he came to know Hlay during the
times the latter was delivering lumber to the terminal and
that, as a member of Local 773, was acquainted with its
president, Wursta. He confirmed the fact that Hlay had
asked him to speak to Long and that he remembered a
conversation he had with Long concerning Hlay in
Long's office. He said "Jokingly, I went up to Mr. Long
at the window and I said, how about hiring this man? So,
in turn, Mr. Long and Mr. Hlay were talking together,
and I left the room." He said that sometime around the
middle of September he asked Hlay for his name and ad-
dress in the event that Long should ask for his name and
sometime after that Long came from the driver's room
and asked him the name of the man delivering lumber and
that he gave Long Hlay's name and address. Santee does
not hold a supervisory position with the Company and,
although a member of the Union, does not act as a stew-
ard or in any other representative capacity. He said he
became friendly with Hlay during the times lumber was
being delivered, but he was not a personal friend in the so-
cial sense. He knew that Wursta came to the terminal
frequently on union business, talked to the men while
there, and handled grievances or complaints on behalf of
union members. He said that he had not seen Wursta with
Long on the day Long asked him for Hlay's name, nor
had he seen Wursta with Long at any time during the day
prior to the time Long asked him for Hlay's name and ad-
dress. He could only say that he knew that Hlay had at
times spoken to Long and that Hlay had reported to him
what Long had said. In Santee's opinion, Hlay was well
liked by company drivers.
Hlay testified further:
Well, on September 2, 1 think it was on Friday, I
just finished unloading a truck and Mr. Long ap-
proached me, and he says to me, he says, how much
time, or how much notice, do you have to give your
employer to change jobs. I told him well, I didn't
have to give any notice, because Penn Dispatch was
a labor pool, and if I didn't show up for work the next
morning or the next week, they would just put
another man from the pool on my job. So he says,
well, as you probably know, he says, we are going to
have an opening at Howard Sober, and I am thinking
of putting you on, he says. The only thing is, he says,
I have to post this job and if nobody bids on it, he
says, the job is yours.... Well, I was very happy to
hear about this. And he also says to me, he says, you
will have to work in the shop. And, he says, you will
also have to work nights. I says, I don't really care
where I work as long as I get the job.
Hlay said that Long had told him that they would say
nothing about the job until it was definite and that, when
Santee asked him what Long had said, he told Santee "he
HOWARD SOBER, INC. 585
promised to give me a job if nobody bids on it ."2 It seems
that it was after this conversation that Hlay gave Santee
the slip of paper showing his name and address. Over ob-
jection of counsel for each Respondent, I permitted Hlay
to testify that, on September 16, he was approached by
Santee who told him that he did not want to upset him but
that Wursta was there. Long came out of the office and
asked Santee for Hlay's name, that he gave Long the
piece of paper showing Hlay's name and telephone
number, and Long took it with him and went back into the
office. Hlay testified that on September 22, while he was
making delivery, Santee told him the boss wanted to see
him, and that Santee took him to Long's office and then
left and that a conversation then took place between him
(Hlay) and Long, in which Long said, in part:
he says, understand, I don't have anything
against you personally. He says, I don't even know
your name, other than you coming in with deliveries.
But he says, I just can't put you on at this time. He
says, I have been hearing unfavorable reports about
you. And I says to him, what kind of reports and
from whom? He says, well, from different people and
employers. And I says to him, well, I says what
could my employers tell about me? I says, I have no
accident record. And, I says, as far as I know, my
work record is good. He says, I've been hearing un-
favorable reports and the Company doesn 't think it
would be a good idea to put you on at this time. I says
to him, the Company? What do you mean? I says, I
thought you done the hiring and the firing. Mr. Long
says to me, I only do what I am told. He says, un-
derstand, we are not closing the door permanently.
He says, this doesn't mean we will not put you on at
a later date. But, he says, we cannot do it just at this
time. He says, don't depend on it. I says, well, I was
depending on it. I says, I was looking forward to it.
That was the end of the conversation.
Hlay testified that on the following day he said that he
asked Harry Bogh, the president of Trexler, if anyone had
come to him within the last 90 days concerning him as a
job applicant for any place of employment and Bogh
replied no, that no one had ever asked about Hlay since
Hlay had been with them. Hlay testified that he then
spoke to Alan Minnig, supervisor at Penn Dispatch, and
was informed by Minnig that no one had asked him
anything concerning his ability on the job.3
In what apparently was a final effort to obtain employ-
ment with the Company, Hlay called Union President
Wursta on the telephone. In answer to a question as to
whether, after the conversation reported above, he had
any conversation with Wursta he replied:
Yes, I did. As a matter of fact, September 27, I
called Mr. Wursta at his home about 7 o'clock, ap-
proximately 7 o'clock in the evening, and I had a
conversation with him, and I did not let Mr. Wursta
know that Mr. Long had already refused to hire me.
. I said to Mr. Wursta, I said, I have been thinking
I have been wanting to change jobs. I says, I would
like to get a job at your old barn, Howard Sober's. I
said, is there anything you can do for me? Mr.
Wursta says, no. I believe I said, huh, or what? He
says to me, no, he says, I don't want to go over there.
He says, I don't want to intercede for anybody,
because, he says, I don't want to be obligated to any-
body. He says, that was my former place of employ-
ment. I says, I was hoping you would. Plus the fact,
he says, Bill, he says other things in my behalf. I
says, what do you mean? He says, you know the way
you conduct yourself at union meetings and you sub-
mitted the charges against me for the automobile. He
says, these things I don't forget. He says, after all,
take these things into consideration. I says, I was
only one of 12 that signed those charges. He says,
yes, but take those things into consideration. He
says, after all, he says, there was nothing to it with
the new cars. He says, that was not my doings; that
was the Executive Board's doings. I was the fall guy,
he says. He says, there was nothing to it. I was ex-
onerated. Which he was. He says, I was exonerated
and all that. He says, if I went to bat for somebody,
he says, yes, I could. He says, I could. I said, I was
hoping you would. He says, well, let me talk to you
another time. I says, okay, I am glad you talked to
me. I says, I was hoping there was something you
could do for me. He says, well, you take a lot of stuff
into consideration. He says, now, there is another
man; there is Johnny Zeigler. He says, I went to bat
for Johnny Zeigler and things didn't go his way and
he blames me for that and I didn't have anything to
do with it. He says, take this stuff into consideration.
I says, well, I was hoping you would help me out. He
says, call me another time. I says, all right, I will.
That was the end of the conversation with Mr.
Wursta.
On cross-examination, Hlay said that the only dif-
ference of opinion he had had with Wursta, other than
what otherwise had been mentioned, was the way Wursta
conducted union meetings, "which I often told him." He
said that as president of the Union, Wursta acted as chair-
man and "I did disagree with him and I did discuss
several things from the floor with him at union meetings.
But other than a union meeting I don 't think so," from
which it may be inferred that the conflict existing between
the two men, if it did exist, arose solely out of the way
Wursta and the executive board administered union af-
fairs.
As an estimate of the number of times he had talked to
Long, Hlay thought it would be about 50 times within a 6-
month period.
From my observation of Hlay as a witness both on
direct examination and on lengthy cross-examination, I
am of the opinion that he really believed that Long had
2 Another conversation between Hlay and Long in the presence of San-
tee, to which I do not attach much significance , was related by Hlay.
Approximately a week later , September 9, I was unloading the
truck in front of the office. As a matter of fact, there is a small door
that leads into the office, and it was approximately 4 o'clock in the af-
ternoon and the shop was working overtime and Mr. Santee had to
come out of the wash room and he was going home , and Mr. Long
come out of the office behind him and says, aren't you working
tonight , Russ? Russ says, no. He says , aren 't you working tomorrow?
And Russ says, no And Mr Long says, boy, I wish I was rich. So I
says to Mr. Long, I says, I can work tomorrow, Mr Long. And he
points Ins finger at me and he says , I might tap you sooner than you
think. It was a short conversation.
Regarding the conversation of September 9, reported by Hlay, he said
that several people were there and heard the conversation , including one
Steve Kirtz and one Bob McLafferty, who were assisting in unloading the
truck. Neither of these two men were called as witnesses. Hlay said that
he had talked to McLafferty and Kirtz and they told him that they had
heard Long tell him "that he was going to tap me sooner than I thought,"
but when he asked them if they would be willing to sign a statement to that
effect they refused, saying they did not want to get involved in the matter.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
promised him a job, and, on the basis of strong suspicion,
concluded that Wursta had prevented his employment by
the Respondent Company. On October 13, 1966, he par-
ticularly noted the employment of Clifford Treece. The
suspicion in his mind was confirmed, I think, after Long
had told him that he had no idea when the Company
would again hire a man and "just politely told me to forget
about it." To him, it appears Long's statement to him
meant that he had no chance of employment with the
Company.
C. Wursta's Version of His Position in Regard to Hlay
The recollection of John Wursta in connection with the
telephone call received by him from Hlay was related by
him on direct examination-
... approximately 7:25 p.m. I received a telephone
call. The reason I say 7:25 is that I had an important
meeting at 7:30 and I was running late. ][ looked at
my watch and I got a telephone call and Mr. Bill
Hlay called. He said, this is Bill Hlay. I said, how are
you, Bill, what's up. He said, will you do me a favor.
I said, sure, Bill, what can I do. He says, put in a
good word for me at Howard Sober's. I said, Jeez,
Bill I can't do that. I said, I don't recommend or in-
tercede for anybody, not even for my own borther. I
said , I will do anything else for you but I just don't
recommend anybody because there are 150 or 200
people looking for certain job openings and, I said, I
do not intercede. I said, Look, Bill, why don't you
call me another time. I said, I have an important
meeting. With that, he said, so long, John, and I said,
so long, Bill, and I hung up.
In response to a question as to whether in the course of
the conversation he remembered saying anything to Hlay
about his having filed charges against him, Wursta
testified:
Yes, I do. He said, I guess you're going to get me
because I appeared. I said, Look, Bill, you are one of
twelve. What difference does that make? You are a
good union man and you acted good. I felt we needed
more men like that. Anybody active and interested
in the organization, and the Union, I certainly ap-
preciate it. More than that, I haven't said a word to
him. I said, Bill, look, you are only one of twelve. I
said, you took an active part in it. I hold no malice or
animosity for that. We have been the best of friends
ever since.
Wursta testified further that he did not say anything to
Hlay about the way he conducted himself at meetings, did
not particularly recall that he had said anything about Zei-
gler although he said he might have said "that Johnny Zei-
gler is after me for a job over there, too. I don't recall."
On cross-examination by counsel for the Union, Wursta
recalled that 2 or 3 years ago Zeigler, a member of Local
773, had asked him for assistance in getting a job with the
Company and that he had told Zeigler that he would not
intercede for anyone. He denied telling Hlay that he
would not recommend him because of the way he con-
ducted himself at union meetings ; he said that Hlay did
not conduct himself at union meetings in any way dif-
ferent from anyone else, that he was "good" at a union
meeting; and denied that he had ever told Long not to hire
Hlay or had ever said anything to Long concerning Hlay.
On cross-examination by counsel for the Company,
Wursta did not recall asking Long whether or not he knew
Hlay and had "no idea of the relationship or what goes on
between Bill and Mr. Long."
Without the knowledge of Wursta, Mrs. William J.
(Rosalie G.) Hlay monitored, overheard, and recorded by
tape the telephone conversation between her husband
and Wursta. Over objection by counsel for the Respond-
ents, I received in evidence, and heard a playback of, the
tape recording. The tape, together with a typewritten, ink-
corrected transcript, is in evidence herein (G.C. Exhs.
SA, SB). I listened to the recording at the hearing and at
this writing have had the tape played back to me.4
The recollection of Hlay and the recollection of Wursta
as to the content of their conversation, as can be ob-
served, are more or less in accord, but different import is
taken by each. (I assume without knowing that Hlay be-
fore testifying had read the transcript of the conversa-
tion.) Wursta obviously was surprised that the call had
been monitored. After hearing and observing each wit-
ness, and hearing the tape (which is not garbled) and read-
ing the transcript, I believe that Hlay reached Wursta at
an inconvenient time for Wursta; that Wursta was not
inclined to assist Hlay in any way because for one reason
he did not want to be obligated to the Company, and for
another he harbored some resentment against Hlay
because of Hlay's activities affecting local union affairs.
It is clearly apparent that Wursta's refusal to intercede on
Hlay's behalf was because of his desire not to become
obligated to the Company - that 'was his main thought; his
personal reason I believe to have been secondary.
Neither reason, nor the combined reasons, could without
more support a finding of an obligation on the part of
Wursta to assist Hlay in his efforts to obtain employment
with the Company.
Obviously, in the face of the denial of Wursta that he
had talked to Long concerning the ambition of Hlay to be
employed by the Company, proof of animus on the part
of Wursta against Hlay must be proved by strong circum-
stantial evidence.
D. Long's Version of Hlay's Efforts to Obtain Employ-
ment With the Company
Company Terminal Manager James Long testified that
he was responsible for the hiring of employees for the
Company at the Allentown Terminal, that the Company
within recent times had hired very few men, and that, as
a general rule, the last few employees hired were through
recommendations of previous employees or relatives of
regular employees . He said that , after it had been decided
to hire a particular man, he was brought in and required
to fill out an application for employment and then sent for
a physical examination . He explained that the Company
4 At the hearing, the introduction of the tape and the playback were ob-
jected to by counsel for the Respondents, the objections raising the
question of whether the tape recording of the telephone conversation
between the business agent of the Union and the Charging Party without
the knowledge of the business agent who received the call is a violation of
the Federal Communications Act (Communications Act of 1934, Sec
605, 47 U.S C.A 605). While evidence which is obtained by means which
violate provisions of the Federal Communications Act is not admissible,
in a court of the United States (e g , wiretapping), the recording of a
telephone conversation with the consent of one of the parties to it does not
constitute an interception in violation of the provisions of the Communi-
cations Act prohibiting interception of communications. United States v
Lewis, 87 F. Supp 970 (D.C D.C 1950), reversed on other grounds 184
F.2d 394 (C.A D.C) Accord - Battaglia v. United States, 349 F.2d 556,
559 (C.A 9 1965) cert. denied 382 U.S 1021, and cases cited
HOWARD SOBER, INC. 587
does not take applications in advance of employment;
that, after an applicant was informed that he was about to
be hired, he then was required to fill out an application
form and considered to be on the payroll. He explained
further that the Interstate Commerce Commission
requires a physical examination every 3 years for drivers
and, insofar as the Company is concerned, all shop em-
ployees. The record of the result of the examination of a
man by the Interstate Commerce Commission, together
with a report of the doctor, is kept on file by the Company
and the man is given a card indicating the date on which
the examination was given and approved. Long testified
that a new employee does not start on the job until after
a physical examination although possibly there had been
exceptions to the rule.
Long testified that Hlay had asked him "any number of
times" if there was a possibility of work with the Com-
pany, and that he had replied that there was that possibili-
ty; that he had asked Santee whether he had Hlay's name
and telephone number, or name and address; that he did
not recall that Wursta was present at that time. In connec-
tion with a conversation he had with Hlay, at the time he
told Hlay that he would not hire him at that time, Long
testified:
Mr. Hlay asked me why. The best I could answer
him or that I could answer you would be that I told
him from remarks that I had heard, overheard in the
shop, I decided to hire the other man, another man.
The only thing that I can recall saying is that I had
decided to hire the other man as the better of the two,
of the choice that I had of the two. I do not recall that
I gave any specific reason.
He said that he heard through the men in the shop that
Hlay was "happy-go-lucky"; that he made no effort to
check on Hlay with any other employers.
Clifford Treece was hired by Long on October 13,
1966. It appears from the testimony of Long that approxi-
mately 2 years before this he had received a telegram
from Bruce King, an official attached to the executive of-
fices of the Mack Company at Munfield, New Jersey,
recommending Treece to Long as a fine driver, and sug-
gesting that, if it was possible at any time, for Long to give
Treece consideration for a job. Long at that time recorded
the name of Treece and kept a memorandum in his desk
drawer for future reference. Subsequently, Long talked
to Treece several times, and, when the job opening arose
in the fall of 1966 and the job had been posted according
to the requirements of the labor agreement between the
Company and the Union, Treece was put on the payroll,
qualified according to the requirements of the Interstate
Commerce Commission, and passed his physical ex-
amination. Long did not recall having any conversation
with Hlay in which he mentioned the fact that a job would
have to be posted for bids, saying that he did not know
why he would discuss something like that with Hlay.5
At the time King communicated with Long, King was
in charge of a training program for the sales department
for the Mack Company. It seems too obvious to mention
that the recommendation of King made to Long on
Treece's behalf would carry great weight, especially if
Treece was found to be a qualified, competent driver.
Between April 1965 and June 1967, Long hired four
men: one Flippovits in April 1965; one Wolfinger in
February 1966; Warren Ritter ("Skeeter") in July 1966;
and Clifford Treece in October 1966. Long denied that he
ever had made a commitment to Hlay that he was hired,
or that he had a job with the Company or that he had ever
intended to make any positive commitment to Hlay that
the job was his. In connection with the hiring of Treece
rather than Hlay, Long was emphatic in stating that he
felt that in Treece he had picked the one of the two who
he thought was best qualified for the job. Long said that
he had never discussed the hiring of Hlay or Treece with
Wursta, that Wursta had never told him not to hire May
or not to hire anyone else. Long said he had no knowledge
of Hlay's activities within the Union, and that the first
time he was aware of any activity on the part of Hlay
within the Union was at the time he received the notice of
hearing in this case.6
In connection with the employment of Treece, Long
said he had talked to him several times, in person and on
the telephone, between the time King had recommended
him and the day Treece was hired. It appears that Hlay,
among other applicants, was not the only qualified driver
or shopman available to the Company for many months
prior to the employment of Treece on October 13, 1966.
Treece, as a witness called by the General Counsel,
testified to the following effect:
He was hired by Long on October 13, 1966, took a
physical examination and met the requirements of the In-
terstate Commerce Commission on that day, after having
talked to Long in either late September or early October
and given his then employer a 2 weeks' notice of his in-
tention to leave to accept the job with the Respondent
Company. In the Autumn of 1964 he had frequently,
through telephone calls and personal talks with Long,
suggested that he might be employed by the Company,
some of these times being when he was making deliveries
to the Company for, his employer, Roadway Express
Company. It was his recollection that, about 2 months be-
fore he was hired or in the middle or latter part of the
month of August, he spoke to Long concerning possible
employment, and that it was either in late September or
early October that Long spoke to him over the telephone,
Long having called him, and inquired as to his availability
for work. Before going to work for Roadway Express,
Treece had worked as a driver for Burro Bus Company in
California. He said that up until the time of his employ-
ment by the Company, he had not known Wursta. Burro
Bus Company, a charter and tour company, had assigned
Treece as driver on chartered bus tours;' in early 1964,
Mack Truck Company had organized a training program
for employees in their sales department and Burro
furnished Mack with busses for a period of about 2 years,
taking Mack personnel over the country on seminars over
a period covering that time. During this time, Treece
drove about I week out of every month for the 12 months
of each year and during that time became well acquainted
with King. It was because of the favorable impression
King formed concerning Treece that King recommended
5 At the time of the hearing, the Company employed 43 men at its Al- 6 Long said that neither King nor anyone else from Mack Truck Com-
lentown Terminal. Fourteen of these men were working in the shop, six pany had recommended Ritter, Wolfinger, or Flippovits, but that each of
men were on layoff status, and the others worked as drivers Approxi- them was recommended to him by employees.
mately 95 percent of the business of the Company at its Allentown Ter- Treece testified that he had worked for that Company for 11 years.
minal is for Mack Truck Company.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Treece to Long. The recommendation of King to Long
was made at the request of Treece.
An incident bearing only on the question of credibility
as between Treece and Hlay, according to Treece, oc-
curred at a time when Hlay, whose name was then un-
known to Treece, said to Treece, while making delivery
of lumber, "enjoy it now . . . because it won't last much
longer." Treece said he was disturbed by this, asked Long
about it, and Long told him he had nothing to worry about
in connection with the loss of his job. Hlay was recalled
to testify, and did, that the only thing he had ever
discussed with Treece was the unloading of lumber when
he might have exchanged a casual word or two, or a joke
or two with Treece and to specifically deny that he had
mentioned Treece's job. I feel it unnecessary to decide
the question of relative credibility between the testimony
of these two men, since it could in no sense affect the ulti-
mate result I shall reach.
Long did not impress me as a person who readily would
accede to a demand or request or suggestion from a union
official that he either hire or refuse to hire any individual.
Wursta, I believe, is one who would not recommend or
would independently interfere in his official capacity with
the employment practices of the Company unless he felt
a union-management question was involved. No such
problem is apparent here. That scintilla of evidence in
support of interference by Wursta with Hlay's opportuni-
ty for employment by the Company is absent here. It is
true that an inference may be drawn that Wursta might
have harbored personal animus against Hlay (although
Wursta has denied this), but there is no substantial proof
that Wursta warned Long not to hire Hlay. I have
weighed the evidence; the testimony of Santee, Wursta,
and Long in respect to Wursta's visits to the Company's
terminal, perhaps one on the day or within a day when
Long in effect informed Hlay that the latter would not be
hired at that time, cannot justify another inference that
Wursta must have informed Long that he was opposed to
the employment of Hlay by Long. The facts do not
establish that the Respondent Company had knowledge
of Hlay's intraunion activities prior to the hiring of
Treece - an element I consider essential to support an
8(a)(3) violation.
The time sequence involved here has been considered,
and found not to be helpful in the resolution of the
questions involved in this case. The proposed amendment
to the bylaws of Local 773 was made September 12,
1964; the protest against Wursta's conduct of the meeting
on May 9, 1965, was made on May 16 of that year, and
the subsequent letter of union members to the secretary-
treasurer of Local 773 was under date of June 21, 1965;
the charges preferred against Wursta concerning the use
of cars for officers and business agents of the Union were
preferred on February 17, 1966. It was during the middle
of September 1966 that Hlay was informed by Long not
to depend on getting a job with the Company; and Treece
was hired on October 13, 1966, after the previous em-
ployment of three other men.
Long said he hired Treece instead of Hlay because he
considered Treece to be the more reliable of the two. It is
contended on behalf of the Respondent Company that the
hiring to fill a job vacancy was solely within the discretion
of the Company, absent the showing by positive proof
that the Union interfered with the hiring of Hlay.
Neither of the Respondents called a witness, and de-
pend on their respective motions to dismiss the complaint
as not supported by the preponderance of the evidence.
I shall grant the motions.
In weighing the value of the evidence in this case, I
have tried to avoid specious inference, and at the same
time allow proper weight to legitimate inference. Since no
direct evidence has been proffered to establish company
knowledge of union antagonism against the employment
of Hlay, the General Counsel is necessarily relying on in-
direct or circumstantial evidence to establish unlawful
motivation. The same standard applies to findings based
on indirect proof; i.e., they must be supported by substan-
tial evidence. In Appalachian Electric Power Co. v.
N.L.R.B., 93 F.2d 985, 989 (C.A. 4), substantial
evidence was defined as "evidence furnishing a substan-
tial basis of fact from which the fact in issue can
reasonably be inferred; and the test is not satisfied by
evidence which merely creates a suspicion or which
amounts to no more than a scintilla or which gives equal
support to inconsistent inferences." The structure of em-
ployer discrimination erected by the General Counsel in
this case rests on too weak a foundation to support the
substantial evidence test. See also Riggs Distler & Co.,
Inc. v. N.L.R.B., 327 F.2d 575, 580 (C.A. 4), and
N.L.R.B. v. Shen-Valley Meat Packers, Inc., andAmal-
gamated Meat Cutters and Butcher Workmen of North
America, Local 393, AFL, 211 F.2d 289, 293 (C.A. 4).
Concluding Findings
Although my sympathy might lie with Hlay, it could
just as well lie with Treece had he been passed over for
employment and Hlay had been successful in his desire
to obtain work with the Respondent Company. This com-
ment has no import; the fact is, and I find, that Long hired
Treece because he believed Treece to be better qualified
for the job.
I find that the allegations of violations of the Act, as al-
leged in the complaint, are not supported by the prepon-
derance of the evidence; and that the motion of the
Respondents to dismiss the complaint should be granted.
Upon the foregoing findings of fact, I make the follow-
ing:
CONCLUSIONS OF LAW
1. The Respondent Company is, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent Union is, and has been at all times
material herein, a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondents have not, nor has either of them,
engaged in or is engaged in unfair labor practices as al-
leged in the consolidated complaint.
4. The consolidated complaint herein should be
dismissed in its entirety.
RECOMMENDED ORDER
It is recommended that the Board enter an order
herein dismissing the consolidated complaint.