Ryder Truck Lines

National Labor Relations Board - Board Decisions

Feb 8, 1977

228 N.L.R.B. 42 (N.L.R.B. 1977)

42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ryder Truck Lines and Roy Dean Kennedy . Case 16-
CA-6418
February 8, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On October 20, 1976, Administrative Law Judge
Jennie M. Sarrica issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief.
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 I and
brief and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
' The Charging Party has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing her findings.
DECISION
STATEMENT OF THE CASE
JENNIE M. SARRICA, Administrative Law Judge: This is a
proceeding under Section 10(b) of the National Labor
Relations Act, as amended (29 U.S.C. 151, et seq.),
hereinafter referred to as the Act. Based on charges filed on
January 26, 1976, a complaint was issued on February 24,
1976, presenting allegations that Ryder Truck Lines,
hereinafter referred to as the Respondent, committed unfair
labor practices within the meaning of Sections 8(axl) and
(3) and 2(6) and (7) of the Act. The Respondent filed an
answer denying that it committed the violations of the Act
as alleged . Upon due notice, the case was heard before me
at Dallas , Texas, on April23, and May 19, 1976. Represen-
tatives of all parties entered appearances and had an
opportunity to participate in the proceeding.
Based on the entire record, including my observation of
the witnesses , and after due consideration of briefs and
argument, I make the following:
228 NLRB No. 11
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent, a Florida corporation with an office and
place of business at 6102 Maple Avenue, Dallas, Texas, the
facility involved herein, is engaged as a freight carrier.
During the year preceding issuance of the complaint, a
representative period, Respondent, in the course and
conduct of its business operations, purchased and received
goods and materials valued in excess of $50,000 from
suppliers located outside the State of Texas. During the
same period Respondent's volume of business exceeded
$500,000.
Respondent admits and I find that it is now, and has been
at all times material herein, an employer within the
meaning of Section 2(2) of the Act, engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
Dallas General Drivers, Warehousemen, and Helpers,
Local 745, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
hereinafter referred to as the Union, is now, and has been
during all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
Whether Respondent denied Roy Dean Kennedy em-
ployment in a nonsupervisory job for reasons related to
union membership.
B. Operative Facts and Conclusions
As a matter of context for the events herein, it is
undisputed that Respondent was expanding its work force
at a newly acquired terminal in Dallas, Texas, and, as
relevant herein, had immediate need to employ one
additional dock supervisor as well as several regular drivers
and a weekly ongoing requirement for casual weekend
drivers and dockworkers. It further appears, as a matter of
background, that Kennedy, an experienced supervisor, with
his union membership in "hold" while he was working as a
supervisor, was denied reactivation of such membership on
the basis of a protest thereto and charges brought by a
former supervisee. Kennedy then resumed employment in a
supervisory capacity.
Kennedy completed an application for employment with
Respondent dated August 29, 1975. He was interviewed for
the supervisory position on August 28 or 29 and again on
September 3, but was advised by terminal manager, Preston
Burge , on September 5, 1975, that the supervisory position
available at that time was being filled by another applicant.
The conversation which followed is crucial to the allegation
of the complaint herein.
It is Kennedy's initial testimony that when he went to
Respondent's terminal and was told by Burge that the
position was awarded to another applicant because of more
RYDER TRUCK LINES
specific pertinent experience, Burge remarked that he was
very impressed with Kennedy's qualifications and would
like to keep his application. Burge stated he thought he had
enough freight activity at the terminal to justify adding
another supervisory position but that this would require the
approval of the Respondent's regional office. Burge in-
quired whether Kennedy would be interested in working as
a "city driver" until there was another supervisory opemng.
Kennedy responded by telling Burge of his union situation
and of his inability to obtain a union card. Burge then told
Kennedy, that if Kennedy could get his union problems
straightened out, to come back and see Burge for a job.
Burge concluded the conversation by telling Kennedy that
he was still impressed with Kennedy's qualifications and
that he would show Kennedy's application to other
terminal employers who may be looking for a dock
supervisor.
According to Kennedy, his last question to Burge was "If
I get my union problem straightened out and get my union
card back will you try me in the City?" and Burge replied,
"Yes; if you get your union problem straightened out, I'll
try you in the City." Later Kennedy admitted, "I can't
exactly remember him saying union card . . . . He didn't
say that I would have to have a union card ...." Still later
in the hearing Kennedy testified that when Burge offered
him the opportunity to work in a city job until another
supervisory position opened up and he told Burge about his
union problems, Burge "said something about getting my
union card back." Kennedy admitted that Burge did not
ask him about the Union - but he told Burge about his
union problems, and that he assumed that he would not be
hired unless he had a union card. Kennedy explained that
he had been "in freight" long enough to know he would not
be hired without a union card, adding:
I didn't want - why should I go to work for Mr.
Burge and two days later a union steward come up there
and say he doesn't have a union card. I guarantee you
I'd be cut off.
Q. (By Mr. Schoolfield) All of this was an assump-
tion on your part with Mr. Burge, wasn't it?
A. Yes, sir . . . . Neither one of them hired me. It
was not an assumption. They both denied to hire me.
That's not an assumption; that's a fact.
s s • • s
The last thing he said - I asked him, since he couldn't
use me in the city because I didn't have a union card, if
he knew of anybody that was looking for a supervisor's
job [sic] because I did need a job, and he said he'd keep
my application on file and anybody that needed a
supervisor, he'd turn the application over and they
would get in touch with me . '.. I told him I was going
to see if I couldn't get my union problems straightened
out. He said, "fine; get them straightened out, get your
union card back; we'll talk about a job." .. .
According to Burge he informed Kennedy on September
5 that Respondent had selected the other applicant for the
position because of his experience as a terminal manager
and not because of any deficiency in Kennedy's qualifica-
43
tions. He told Kennedy he would keep Kennedy's applica-
tion in an open file and, with Kennedy's permission, would
give Kennedy's name to employers who may call seeking to
hire a supervisor. Burge asserts this conversation was in a
telephone call placed by Kennedy and that he did not see
Kennedy at his terminal office that day. Burge denied that
mention was made of a job on the dock or in the city, or of
Kennedy's union status or problems.
Other credible evidence supports Kennedy's testimony
that he did go to the terminal on September 5 and speak
with Burge . My evaluation of Burge's testimony vis-a-vis
related matters mentioned by Kennedy convinces me that
even though it may have been a company practice to keep
for future reference applications of well qualified persons
who had not been selected there would be no occasion for
him to tell Kennedy his was being held in an "open" file
unless there had been some communication of the possibili-
ty of an additional supervisory position. I find Kennedy's
testimony in this regard partially and inferentially corrobo-
rated by Burge . Further, unless Kennedy had spoken of his
need for immediate employment and had communicated to
Burge a reason why employment within the scope of his
experience other than supervisory was not feasible, there
would appear no basis in the normal course of events for
Burge to volunteer to act as a supervisory referral conduit
to other employers on Kennedy's behalf, using his applica-
tion for this purpose, particularly when Burge hoped to
employ Kennedy in this capacity himself. As presented by
Burge this statement , in the context of an ordinary hiring
procedure, stands as a non sequitur. However, the insertion
of a conversation concerning the possibility of Kennedy
accepting interim work on the dock or in city driving,
together with a discussion relating to why Kennedy's union
problems did not make this feasible, presents a perfect
context for the sympathetic and humane offer to foster
Kennedy's securing other supervisory employment.
However, this does not require a conclusion that Respon-
dent refused to employ Kennedy for dockwork or city
driving because of his union status. Analysis of Kennedy's
own testimony makes this conclusion questionable. It was
Kennedy who advanced his union status as the reason for
his rejection of Burge's suggestion of a city job. Kennedy
admitted that Burge did not say Kennedy would have to
have a union card. Kennedy could not "exactly remember"
Burge mentioning "union card." Further, Kennedy admit-
ted that it was an assumption on his part, that he would be
unemployable on a city job, premised on his experience "on
both sides of the fence," and his consequent postulation
that if he accepted such a job "two days later a union
steward [would] come up there and say he doesn't have a
union card" and he would "be cut off." Kennedy's
comment "I didn't want - why should I go to work for Mr.
Burge and" have this happen, reveals that it was Kennedy
who removed himself from consideration for employment
as a city driver or dockworker because of his problems with
the Union. In such circumstances I do not find that his
stated reason for declining the nonsupervisory work can be
attributed to Respondent as the reason for its failure to hire
Kennedy. Burge's acquiescence in Kennedy's decision not
to confront the Union with still another incident does not
rise to the stature of a refusal to employ. I reach this
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusion despite the testimony that in response to
Kennedy's declared intent to try to get his "Union
problems straightened out," Burge said , "fine; get them
straightened out and . . . I'd be interested in trying you in
the city." Burge had no obligation to enter into or to try to
influence Kennedy in his relationship with the Union.
Kennedy had already indicated his preference . According-
ly, I fmd that Respondent did not unlawfully fail and refuse
to hire Kennedy on September 5, 1975.
Testimony was presented covering certain subsequent
developments relating to the allegation of a continuing
refusal by Respondent to hire Kennedy. The evidence
indicates that Kennedy did make an effort to rectify his
status with the local union and when this was unsuccessful
he attempted to obtain membership in a sister local. It is
Kennedy's testimony that when he obtained money receipts
for membership in the sister local he called Burge seeking
employment in the city and Burge told him to come in the
following morning for a driver 's test. Kennedy then again
contacted the sister local to verify acceptance of his
membership and was told it was being denied after a
reference check with his former local. Kennedy then called
Burge the following morning before his scheduled drivers
test . According to Kennedy he told Burge he was sorry but
something had come up and his union problems were not
solved ; he did not get a card and he did not "see any use of
me coming by to take a driving test." Burge replied, "No,
there's not, not at this time." Kennedy repeated he was
sorry and stated he was still working on the problem; then
added, "If I can get it worked out, I 'll get back in touch with
you" to which Burge responded , "Be sure to do that."
Burge denies that this conversation ever took place or that
Kennedy was ever scheduled for a driving test. Burge
asserts he never heard from Kennedy after advising him of
Respondent's choice of the other supervisory applicant
until the charge herein was filed.
Considering this incident as testified to by Kennedy, but
in the light of the preceding incident, I am inclined to the
conclusion that there was no withholding of employment
by Respondent but rather a withdrawal from employment
consideration by applicant Kennedy . However, I do not
rest my conclusion on this consideration alone , as other
evidence convinces me that Burge testified truthfully that
the driving test incident never happened.
Thus, documentary evidence and credible testimony
establishes that in hiring drivers Respondent accepts for
employment those who can demonstrate their qualifica-
tions by presentation of a "DOT" or Department of
Transportation card which may have been obtained while
working for other transportation employers . However,
Respondent gives its own test , which encompasses but is
more comprehensive than the DOT test , as well as a
physical examination before a new employee finishes his
probationary period and before a casual employee changes
to regular status . Respondent has an official, Safety
Supervisor James Timmons, with his headquarters in
Birmingham , Alabama, who is authorized to give qualifying
tests for a DOT card , and who in limited situations may
designate a terminal driver to act for him in giving a road
test.
The terminal involved herein was acquired by Respon-
dent in July 1975, and Timmons had not yet come to the
terminal to administer the Respondent 's test , which consist-
ed of both road demonstration and written examinations,
to any of the employees, nor had he designated a terminal
driver to give the road test. By a memorandum dated
September 9, Burge issued notification to drivers employed
with the acquisition of the terminal as well as those
employed on September 8 and 9 to present themselves for
such testing by Timmons as scheduled therein for Saturday
and Sunday, September 13 and 14. Such notice was
acknowledged in writing by each driver named therein.
Kennedy's name is not listed thereon.
Kennedy obtained the receipt for the dues to the sister
local on September 8 and claims to have spoken with Burge
on September 9 and to have been scheduled for a test on
September 10 which he canceled that morning. Clearly no
tests were ever scheduled for September 10, and it would be
most unlikely that any conversation concerning the un-
availability of a supervisor to administer that test on
September 9 would have taken place since no local terminal
employee, supervisor or driver, had yet been designated by
Respondent to administer such test , and Burge, as terminal
manager, was not unaware of this as evidenced by his
September 9 memorandum to the drivers concerning
Timmons' ensuing mission . Moreover , Kennedy was an
experienced driver as well as a supervisor and presumably
could have been presented a DOT card under which he
could have been hired under Respondent's policy either as
a regular probationary driver or as a casual driver as were
the two employed by Respondent on September 8 and 9,
subject to a later test.
Considering all the circumstances, including many other
details all having some bearing on the possibilities, and
probabilities of what actually occurred, I conclude that the
evidence as a whole fails to establish that Respondent has
withheld employment from Roy Dean Kennedy based
upon its consideration of his union status.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. It has not been established by a preponderance of the
credible evidence that the Respondent engaged in unlawful
conduct as alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER1
It is hereby ordered that the complaint herein be, and the
same hereby is, dismissed in its entirety.
' In the event no exceptions are filed as provided by Sec . 10246 of the of the Rules and Regulations , be adopted by the Board and become its
Rules and Regulations of the National Labor Relations Board , the findings , findings , conclusions , and Order, and all objections thereto shall be deemed
conclusions , and recommended Order herein shall, as provided in Sec. 102.48 waived for all purposes.