Clark & Reid Co., Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1936

2 N.L.R.B. 516 (N.L.R.B. 1936)

In the Matter of CLARK & REID COMPANY, INC., and CURTIS &
CROSTON, INC. and PIANO & FURNITURE MOVERS, DRIVERS, PACKERS
,& HELPERS LOCAL UNION No. 82
Case No. C-108.-Decided December 30, 1936
Motor Truck Transportation Indastry-Interference , Restraint or Coercion:
expressed opposition to labor organization ; questioning employees regarding
organizational activiti•-Strike-Discrimination : discharge-Reinstatement Or-
.dered-Back Pay: awarded.
Mr. Edmund J. Blake for the Board.
Mr. Thomas F. Sullivan, of Cambridge , Mass., for the respondent.
Mr. Nathan Greenberg, of Boston , Mass., for the Union.
Mr. Fred. G. Krivonos , of counsel to the Board.
DECISION
STATEMENT OF CASE
Piano and Furniture Movers, Drivers, Packers and Helpers Local
Union No. 82, hereinafter termed the Union, having duly filed a
charge with the Regional Director for the First Region, the Na-
tional Labor Relations Board, by its agent, the said Regional Di-
rector, issued and duly served its complaint dated May 15, 1936,
against Clark & Reid Company, Inc., Cambridge, Massachusetts, and
Curtis & Croston, Inc., Boston, Massachusetts, respondents herein,
alleging that the respondents had engaged in and were engaging in
unfair labor practices affecting commerce within the meaning of
'Section 8, subdivisions (1) and (3) and Section 2, subdivisions (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein-
after termed the Act.
The complaint, in substance, alleges that the respondents, Massa-
chusetts corporations, with places of business in Cambridge and
Boston, Massachusetts, are engaged in transporting, moving, pack-
ing, and storing of household furniture and goods in interstate coln-
merce; that on March 28, 1936, the respondents discharged Harry
Kaplan, a chauffeur, and on March 30, 1936, discharged Patrick
Donaghue, James M. McNeil, Raymond McLeod, chauffeurs, and
Harry Letteney, a helper, because of the membership and activity
of these employees in the Union.
The respondents' answer admits that the respondents are engaged
in transporting, moving, packing and storing of household furniture
516
DECISIONS AND ORDERS 517
and goods in interstate commerce; it admits the discharge of Harry
Kaplan, but avers that he was discharged for insubordination and
refusal to do his work properly. The answer alleges that McNeil
and McLeod were temporary employees; that McNeil was not a
chauffeur, but a helper; that the employees named, other than Kap-
lan, were not discharged, but had applied for reemployment, and
that the respondents had agreed "that they could return should they
so desire". All other allegations in the complaint are denied.
Pursuant to notice thereof, duly served on the respondents, Robert
M. Gates, duly designated by the Board as Trial Examiner, conducted
a hearing on May 25, 1936, at Boston, Massachusetts. The respond-
ents appeared by counnsel, Thomas F. Sullivan, and participated in
the hearing. Nathan Greenberg appeared as counsel for the Union.
The Board was represented by counsel . Full opportunity to be
heard, to examine and cross-examine witnesses and to produce evi-
dence bearing upon the issues was afforded to all parties.
Upon the record thus made, the Trial Examiner, on July 28, 1936,
filed an Intermediate Report, finding and concluding that the re-
spoiicients, in discharging the employees named in the complaint, had
engaged in unfair' labor practices as alleged therein, and ' recom-
mended their reinstatment with back pay.
The respondents, on August 3, 1936, filed exceptions to the Inter-
mediate Report and a request that the case be reopened for the intro-
duction of further testimony. In brief, the exceptions contend that
the Trial Examiner's findings and conclusions are "against the weight
of the evidence"; and that the respondents ' relationship to their em-
ployees, although these "may be employed in assisting the movement
of interstate comerce", is.not "a part of commerce". The request for
reopening the case is based on the Trial Examinei's rulings refusing
the admission of testimony.
We find that the evidence in the record supports the Trial Examin-
er's findings and conclusions . We find nothing in the respondents'
exceptions to the Intermediate Report which merits discussion at
this stage of the proceedings or which requires any material. alteration
of the Trial Examiner's findings and conclusions. We find no prej-
udicial error in any of the Trial Examiner 's rulings at the hearing,
and they are affirmed. The respondents ' request that the record be
reopened fails to show cause for ' such action, and is hereby denied.
Upon the entire record in the proceeding , the stenographic report
of the hearing, and all evidence, including oral testimony, docu-
mentary and other evidence, offered and received at the hearing, we
make the following:
518 NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE RESPONDENTS AND T11MR BUSINESS
1. (a) The respondents, Clark & Reid Company, Inc., and Cur-
tis & Croston, Inc., are Massachusetts corporations, the former or-
ga.nized in 1931, the latter in 1933. The controlling interest in both
corporations is owned by George F. Martin, president of. Clark &
Reid, and treasurer of. Curtis & Croston. He is also the general
manager and operating executive of both companies, and his brother,
Alfred F. Martin, is in officer in both. The respondents are engaged
principally in the business of moving household goods and pianos;
they also do some trucking.
(b) The respondent Curtis & Croston maintains an office in Boston
to receive orders; the respondent Clark & Reid has its office in Cam-
bridge, where it maintains the warehouse and garage used by both.
In fact, the two companies are operated as a single enterprise. The
eight trucks owned by both 1 are kept in the Cambridge garage;
the trucks are used interchangeably by both respondents, as are the
employees, all of whom report for work at, and work out of the
Cambridge warehouse and garage. The respondent. business is sea-
sonal, with the busiest seasons in'the spring and the fall; the volume
of business also increases at. about the first and 15th of each month.
The number of inen employed by the respondents varies with their
business volume, from six or seven to 25. Except during the winter,
about 14 or 15 men are seadily employed; others report every morn-
ing and are employed if needed. Additional workers are called dur-
ing the busiest seasons as required.
(c) The respondents are members of the National Furniture
Warehouse Association and of its subsidiary, the Allied Van Lines
Association. Through members of the former, the respondents ob-
tain some out-of-town business, and in turn recommend out-of-town
members to customers. Allied Van Lines operates as a clearing
house. through which return loads are booked by the respondents,
either for their own trucks on their return to Boston from moving
jobs to States other than Massaclhlusetts, or for trucks of other movers
returning from Boston to States other than Massachusetts. The re-
spondents, unless assured of such return loads for their own trucks,
generally turn long distance moving jobs over to the Allied Van
Lines, all(.]. receive a commission on such business. However, the re-
spondents' trucks, operated by their employees, make frequent trips,
not on regular schedule, but as business requires, to States along the
' The respondents operate only seven of the eight` trucks owned . Six of the trucks are
nosed vans.
DECISIONS AND ORDERS 519
Atlantic coast other than the State of Massachusetts. About ten
per cent of the respondents' business consists of such interstate trans-
portation of goods; the respondents' trucks and the respondents'
employees are employed in such transportation.
(d) The respondents, in February, 1936, filed with the Bureau of
Motor Carriers, Interstate Commerce Commission, applications for
certificates to operate as common carriers of property in interstate
commerce, under the Motor Carrier Act, 1935.2 In its application,
the respondent Clark & Reid, over the signature of its president,
George E. Martin, states that the "applicant was in bona-fide opera-
tion as a Common Carrier by motor vehicles on June 1, 1935, prior
thereto and since, engaged in interstate or foreign commerce in trans-
portation of commodities" ; that it has and is engaged in "over the
road operations to, from and between all cities, points, places and
areas in the states of Maine, New Hempshire, Vermont, Massachu-
setts, Rhode Island, Connecticut, New York, New Jersey, Pennsyl-
vania, Delaware, Maryland, and District of Columbia"; that "prin-
cipal traffic is to and from Boston, Massachusetts, from and to the
principal cities and military posts in the above states"; and that
return loads are in part secured by the respondent- and in part
through brokers or from other interstate common carrier movers of
furniture. Its application lists particular transportation operations
of the respondent to the above States and the District of Columbia
from points in Massachusetts; refers to "numerous additional ship-
ments" not listed; and sets forth the names and addresses of the
statutory agents for service of process in such States and the District
of Columbia. The application also states that the respondent makes
"shipments by freight and steamship to all parts of the world".
The application of the respondent Curtis &- Croston contains the
same statements and lists the same States.3 Both applications specify
and describe the trucks owned and operated by the respondents, and
list six of the eight trucks so owned by both as "in revenue service"
in interstate operations at the date of the applications.
(e) The respondents hold themselves out to the general public and
undertake to transport property for hire to States other than the
State of Massachusetts and to foreigii countries.4 The respondents,
in public advertisements, hold themselves out as packers and movers
9 Exhibits B-6 and B-7, made part of the record by stipulations dated October 26, 1936,
between the respondents and the Board
B The Curtis & Croston application lists one transportation job' to Virginia , but lists no
transportation jobs to Rhode Island or Delaware One job from Pennsylvania is listed
Statutory agents for service of process are not specified in its application
4 See statements to this effect in respondents' applications to the Bureau of Motor
Cairieis for certificates to operate as interstate common carriers under the Motor Carrier
Act, 1935. Exhibits B-6 and B-7
520 NATIONAL LABOR RELATIONS BOARD
"local and long distance"; they advertise "goods packed for foreignL,
and domestic shipment" and "lift van service to all parts of the
world".5
II. The respondents are engaged in traffic, commerce and trans-
portation among the several States, and between the State of Massa-
chusetts and foreign countries; the trucks owned by the respondents
are instrumentalities of, and the employees of the respondents are
directly engaged in such traffic, commerce and transportation.'
H. THE UNION
III. Piano and Furniture Movers, Drivers, Packers and Helpers-
Local Union No. 82, affiliated through the International Brotherhood
of Teamsters, Chauffeurs, Stablemen and Helpers with the American
Federation of Labor, is a labor organization which includes in its
membership employees of the respondents. In about September,
1935, the Union, as part of an effort to organize employees in the
moving industry, attempted to enroll the respondents' employees, but
because the employees feared Martin's hostility to the Union,7 met
with no success. Organization efforts were then postponed until
after the slack winter season. In March, 1936, there were several
meetings between union officials and employees of the respondents.
On Sunday, March 22, union officials held a meeting with Ives, Kap-
lan and Donahue, employees of the respondents. On the following
day, March 23, seven of the respondents' employees, Harry Kaplan,.
Patrick Donahue, Harry C. Letteney,8 Raymond McLeod, Dolf Kins-
man, Albert Laren, and Walter Ives, became members of the Union.
IN. THE UNFAIR LABOR PRACTICES
IV. (a) Harry Kaplan and Walter Ives, both employed steadily
as drivers by the respondents, attended the union meeting on Sun-
day, March 22, and became members on the following day. During
this week, the respondents, by Martin, hired two drivers, Caster and
Marrs, neither of them a union member, and on Thursday, March
5 Exhibit B-3 -
9 The respondents , in their answer , admit that they are engaged in interstate transporta-
tion and commerce At the hearing they made the same admission and admitted that
they were subject to the Board 's jurisdiction.
7 There is testimony that employees of the respondents at that time feared discharge
if they joined the Union. Patrick Donahue, then employed by the respondents as a
chauffeui , testified that George Martin, about that time, asked him if he had been
approached "about the union" and told him that "there will be no union here", "there
will be no delegates coming to my office ". Martin , in his testimony , could not recall
any conversation with Donahue in- connection , with the Union , he denied that he had
told Donahue he would throw any union delegate who came to his office through the
window
s The complaint names "Patrick A. Donagliue " and "Harry Letteney". The spellings
and initials used in these findings are as found in the transciipt of the hearing.
DECISIONS AND ORDERS 521
28, the two men were assigned to drive the trucks normally driven
by Kaplan and Ives.° Kaplan and Ives were then assigned to work
on a small truck.
(b) Kaplan was discharged by George Martin when he reported
for work on the morning of Saturday, March 28. According to
Kaplan's testimony, when Martin had assigned trucks and jobs to.
the other employees, he handed Kaplan his pay and said : "We don't
need you any more. You are number one. You can go back and
tell Boly Rice he ain't beating up anyone. He ain't dealing with
Buckley or Dunn."10 Martin, in his testimony, denied making such
a statement,11 and denied that he had ever heard of or met Boly
Rice, until the following Monday morning.12 However, apart from
Martin's testimony that Kaplan came to work 10 or 15 minutes late,
on the morning of March 28, the respondents offered no evidence as,
to the circumstances and conversation immediately accompanying
Kaplan's discharge.
V. (a) On Sunday, March 29, Kaplan discussed his discharge
with several, other employees of the respondents and union officials
at union headquarters. The next morning George Martin, on his
way to begin the day's work at the respondents' garage,13 noticed five,
or six of the employees talking to Boly Rice about 300 to 500 feet
from the place. Rice and two other union officials followed him into
the garage. Rice presented Martin with a copy of a proposed uliioni
agreement, and asked to talk to him about Kaplan's discharge;
Martin said that he would give his reply in 48 hours.14
(b) A few minutes later Donahue, Ives, Laren, Letteney and
McNeill,'5 all union members, the employees of the respondent who
had been talking near the garage with Rice and the other union
officials and who were seen by George Martin, reported for work at
'Although the respondents' diivers are not assigned exclusively to particular trucks,
each regular (steadily employed) driver is assigned to a truck which he drives most of
the time
1' Boly Rice is the business agent of the Union "Buckley" and "Dunn" are two firms,
engaged in the trucking business, which have agreements with the Union.
"The stenographic transcript of the heat ing, on pages 19 to 21, refers to "Kinsman".
However, it is obvious from the context that the questions and answers concern Kaplan.
12 In his Intermediate Report the Trail Examiner on this point states "It is difficult
to believe that Boly Rice was unknown to Martin at that time " (Finding 7
13 The working day at the respondents' garage begins at 0' 30 a in
14 While the witnesses agree as to the presentation of the union agreement, the mention
of Kaplan's discharge and the 48 hour period specified for Martin's reply, they differ as to.
the exact language used in the conversation George Martin and his brother testified that
Rice presented the agreement and said Martin had 48 hours to sign it, "or else" Rice's
version is that he stated his business, presented the agieement for consideration, asked
the reason for Kaplan's discharge, and that Martin said he would let him know in 4S
hours Even if the Martins' testimony be accepted, it is just as plausible to interpret the
expression, "or else", as a warning of a possible strike if Martin refused to bargain collec-
tively, as a more serious threat. However, no finding as to the precise language used is
necessary to determine the issues of discrimination before us in this case
15 Named "James Al. McNeil" in the complaint
522 NATIONAL LABOR RELATIONS BOARD
the garage.1e One or two trucks had by that time been sent out on
jobs by George Martin. According to Martin, he said to them:
"That is all to-day", or, "That is all this morning, fellows." Dona-
line, Letteney and McNeill testified that Martin said : "There is no
more work here, men", and closed the garage doors. The respond-
ents used 15 men on that day, and four or five of the trucks.
(c) The five men then left the garage and returned to where Rice
and the two other union officials were waiting. The Union inter-
preted the incident as a discharge of the five employees and as cause
for a strike, and they began picketing the respondents' garage later
that clay. McLeod, an irregularly employed driver and a union
member, after his return to the garage from a trip to New York
the next day, did not go back to work but joined the pickets.
VI. About two weeks later Ives and Laren arranged through an
intermediary, according to Martin, to return to work for the respond-
ents. As a result, because they had gone to work during the strike,
their union membership was automatically suspended and a few days
later they gave tip their union buttons and other union credentials
to Rice upon his demand. -Shortly thereafter, through the inter-
vention of a friend of Kaplan who was a customer of the respondents,
Martin had conferences with Kaplan, and then with Kaplan and
Donahue, about returning to work. Martin expressed his willing-
ness to put Kaplan and Donahue back to work. According to
Martin, the two employees agreed to return to work on 112onday,
April 27. However, Kaplan and Donahue testified that they had
merely agreed to think the matter over and to let him know of their
decision. There is no doubt that Martin was well aware, from the
experience of Ives and Laren, that individual return to work during
the strike, and without a collective settlement of the strike through
the Union, mean loss or suspension of union membership. His
offer to reinstate Kaplan and Donahue was necessarily subject to the
condition of their ouster or suspension from the Union. Kaplan and
Donahue knew this, too. Neither of them returned to work. Martin
also told McLeod's wife that lie would put him back to work, if he
quit the Union, according to McLeod, and if he quit drinking; ac-
cording to Martin. Under the circumstances, McLeod could not
have returned to work without giving up union membership, as
Martin was well aware.
16 The testimony of Martin and that of the union witnesses conflict as to the precise tim-
ing of the events of Monday morning Mastro testified that Rice came in to see him at
6 30 and that these men arrived for work at 6 40 Rice's testimony is that lie spoke
to Mai tin at 6 • 15 , and the men testified they came in to work at 6 : 20 or 6 : 25 We
concur in the Trial Examiner's statement in his Intermediate Report (Finding 10) that:
"The evidence does not warrant a finding that the five men did or did not report on time,
i e by six thirty Instead the facts must be considered as showing a fast moving series of
events occurring between 6 • 15 and 6 45 o'clock "
DECISIONS AND ORDERS 523
VII. (a) Harry Kaplan had been steadily employed by the re-
spondents since April, 1934. For about two months, beginning about
May, 1935, in addition to driving trucks, he acted as foreman, but
without additional pay. According to George Martin, he demoted
Kaplan from the foremanship because of complaints from other em-
ployees. Kaplan testified he voluntarily relinquished these duties
because of the uncompensated "headaches" connected with them. He
continued as a driver. During the slack winter months the respond-
ents kept Kaplan and several other steadily employed workers oc-
cupied on odd jobs. In his testimony, Martin characterized him as
"a pretty good driver". He was paid $35 a week at the time of his
discharge.
(b) Patrick Donahue worked for Curtis & Croston for 12 years
until 1931, and was employed by Martin when he took over the busi-
ness in 1933. He was employed steadily as a chauffeur or driver,
and was paid $30 a week. Harry C. Letteney, Raymond McLeod
and James McNeill were irregular employees, given work as the
volume of business permitted. Letteney worked 168 days in 1935
and 27 days in the first three months of 1936. His pay was $5 a
day. McLeod worked 11',' days in 1935 and 141/ days in the first
three months of 1936. His pay was $5 a day. McNeill worked 201/2
days in 1935 and two days in March, 1936. He also received $5 a
day. All of these men were members of the Union when they were
discharged on March 30, 1936.x'
VIII. (a) In regard to the allegations in the respondents' answer
that Kaplan was discharged for "insubordination and refused (sic)
to do his work properly", George Martin testified that Kaplan had
been reporting for work late for some time, that he had several minor
accidents with trucks he was driving, and that he was responsible for
minor damage to furniture moved. But from the testimony it is
clear that none of the minor accidents to trucks were due to the fault
of Kaplan, and that the damage to furniture was minor, normally
to be expected in the course of moving operations, and not consid-
ered seriously by Martin as due to Kaplan's fault or calling for
more than a routine reprimand. As to Kaplan's tardiness, Martin
seems to have accepted the explanation that it was clue, chiefly, to
the illness of Kaplan's wife. Kaplan also testified that he reported
late when he had come in from a long drive late the night before.
Martin did not give serious consideration to what he claims to have
been Kaplan's faults until after Kaplan had joined the Union. Even
17 McNeill, formerly a member of the Union, was reinstated to union membership on
March 23, when other employees of the respondents became membeis. See finding III
above.
524 NATIONAL LABOR RELATIONS BOARD
so, Martin was willing to put Kaplan back to work several weeks
after his discharge because he was "a pretty good driver".
(b) In regard to the allegations in the respondents' answer that
the employees named in the complaint had applied for reemployment
and that Martin had agreed they could return to work, the evidence
shows that Martin had, after the strike, expressed his willingness to
reinstate Kaplan, Donahue and McLeod, but under the necessary
condition of loss of their-union membership (see finding VI ,above) .
There is no evidence that Martin had at any time after March 30
agreed to reinstate Letteney and McNeill under any circumstances.
IV. CONCLUSION"
IX. (a) The testimony of the witnesses on behalf of the Union
and the respondents leaves much to be desired for candor and clar-
ity.18 For the respondents, George Martin, with astonishing con-
sistency, flatly denied or openly gave the lie to many damaging por-
tions of the testimony of his employees. The evidence is most
sharply in conflict as to what the parties said at one time or another,
and as to the precise time of particular occurrences. Nevertheless,
there remains a sufficient residuum of credible testimony in the rec-
ord upon which to base these findings and conclusions of fact.
(b) We find that the evidence before us does not support the re-
spondents' contention that Kaplan was discharged for "insubordina-
tion" or refusal "to do his work properly". Rather, the evidence is
persuasive that he was discharged by the respondents because of his
union membership. We can deduce from the evidence no other rea-
son for his summary dismissal without warning. During the week
following Kaplan's membership in the Union, Martin found occasion
to reprimand Kaplan twice for faults which had theretofore not
been taken seriously. A few days after he joined the Union, the
truck regularly driven by Kaplan was assigned to one of the two
men hired that week. Although Martin denied Kaplan's testimony
of Martin's anti-union statement, containing an obvious admission
that he was discharging Kaplan for union membership, when he
paid him off (see finding IV (a) above), there is no testimony on
behalf of the respondents as to what Martin did say to Kaplan at
the time. Further, while Martin denied that he knew of Kaplan's
union membership when he was discharged, and while he denied
anti-union statements attributed to him during the week before
Kaplan's discharge by McLeod and Letteney, he admitted that he
knew that several of the respondents' employees were members of
18 In his Intermediate Report the Trial Examiner says : "There appeared to be a lack
of candor on the part of nearly all the witnesses " ( Finding 19.)
DECISION'S AND ORDERS 525
the Union. This knowledge, coupled with the hiring of Marrs and
Castor and their assignment to the trucks regularly driven by Kap-
lan and Ives, both union members, convinces us that Martin had
knowledge of the fact that employees of the respondents, Kaplan
among them, had joined the Union. The coincidence between Kap-
lan's union membership, the hiring of Marrs and Castor, Kaplan's
'displacement from his regular truck,by one of them, and his dis-
charge is too close to permit credence of Martin's testimony that he
hired these men solely because he "was getting busy" or that "it
just happened that he (Castor) went on steady before Kaplan got
fired". 'The evidence more plausibly reveals that in so hiring and
assigning these men Martin was preparing himself to remind and
warn the respondents' employees drastically of his anti-union atti-
tude, originally indicated the previous fall (see finding III above).
That reminder and warning came with Kaplan's discharge on March
28. Moreover, the following Monday morning when Boly Rice pre-
sented the proposed union agreement to Martin and mentioned Kap-
lan's discharge, Martin accepted without protest Rice's inclusion of
Kaplan's discharge as part of the union's business with him, made
no claim that he had discharged Kaplan for cause, and merely said
he would give his reply in 48 hours.
(c) From the evidence we also conclude that Patrick Donahue,
Harry C. Letteney and James McNeill, the employees of the respond-
ents who, with Ives and Laren who later returned to work, were re-
fused work by George Martin on Monday morning, March 30, were
discharged for union membership. Martin admitted that he saw
them talking with Rice a short distance from the respondents' garage
as he went into the garage that morning. Rice's visit and the pres-
entation of the proposed'union agreement, and.the subsequent arrival
of these men for work and Martin's refusal to give them work, fol-
lowed each other in rapid succession. There can be no question of
Martin's knowledge, at the time the men came in to work, of the asso-
ciation of these employees with the Union. Martin's testimony to
the effect that he refused these men work on that day because they
were late does not bear scrutiny in the light of his own evidence that
only two trucks had gone out when the men arrived for work, and
that he used 15 men that morning and four or five trucks. His un-
usual refusal to put these five employees to work-Donahue, Ives and
Laren, steadily employed, Letteney, an irregular employee but
usually employed the greater part of the year, and McNeill, an
irregular employee who had worked the previous Friday and Satur-
day and who had been told to report on Monday-under these cir-
cumstances was clearly motivated by their union membership and
was obviously a discharge. These employees were fully justified in
526 NATIONAL LABOR RELATIONS BOARD
concluding that they had been discharged, as Kaplan had been the
previous Saturday, because of their union membership, and in under-
taking concerted activity in picketing the respondents' place of busi-
ness. Certainly when they began picketing that very day, Martin
could easily have dispelled any misapprehension he may have felt
they entertained as to the nature of his action in turning them away
that morning. But there was no such word from Martin, either that
day or on the days following.
(d) Raymond McLeod, who was away on a job for the respondents
over the week-end, joined his fellow union members on the picket
line after his return to the garage on Tuesday, March 31. There is
nothing in the record to indicate that the respondents do not consider
him in the same category as the employees discharged on Monday.
The severance of his employment was due to his union membership
and activity, and was based on a justifiable apprehension that to
continue or return to work under the circumstances meant loss or sus-
pension of union membership. The offer of reinstatement made
through McLeod's wife was necessarily conditioned on his loss of
union membership (see finding VI above).
(e) Although the respondents' answer makes no allegations of vio-
lence by union members, the respondents sought to introduce evi-
dence of violence on the part of the Union. The record is barren,
however, of evidence of violence by any of the employees seeking
reinstatement. The evidence offered of alleged violence by a union
official some time after the respondents had discharged Kaplan and
the others under the circumstances set forth above was properly ex-
eluded by the Trial Examiner.
X. (a) The respondents' conduct in discharmin; Harry Kaplan,
Patrick Donahue, Harry C. Letteney, James McNeill, and each of
them, and in causing the severance of the employment of Raymond
McLeod, as set forth above, constitutes discrimination in regard to
hire and tenure of employment to discourage membership in a labor
organization, in this case the Union.
(b) The respondents' conduct in discharging and causing the sev-
erance of the employment of the employees named in the preceding
paragraph, because of their union membership and activity, consti-
tutes interference, restraint, and coercion of its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
V. THE RESPONDENTS ' CONDUCT IN RELATION TO INTERSTATE COMMERCE
XI. (a) The respondents' discharge of Kaplan and other employees
as set forth above occasioned the strike on March 30 and picketing
of the garage . Statistics compiled by the Bureau of Labor Statistics,
United States Department of Labor, certified under the seal of the
DECISIONS AND ORDERS 527
Department and the signature of the Commissioner of Labor Statis-
tics,19 show that in 1934, in the motor transportation industry, of a
total of 67 strikes involving 67,923 workers and causing 890.724 man-
clays of idleness, 25 were "organization" strikes over questions of
union recognition and discrimination, involved 25,703 workers, and
caused 582,130 man-days of idleness. In 1935, from January to July
24 out of 47 strikes in the industry were over "organization" issues,
involved 24,962 workers, and caused 113,142 man-days of idleness.
(b) The respondents' conduct as set forth above occurred in com-
merce, and on the basis of experience in the respondents' business and
on that of others in the same and in other industries, burdens and
obstructs commerce and the free flow of commerce, and has led and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
THE REMEDY
We shall order the reinstatement of the workers whose employment
was severed by the respondents, with back pay. Kaplan and Dona-
line, who were regularly or steadily employed, are entitled to back
pay in full, less whatever they may have earned since their discharges.
The irregular employees are entitled to back pay in proportion to
the average amount of work given. by the respondents to irregular
employees of their class after March 30, 1936, the date of their dis-
charge. Thus Letteney, who was normally given a conslderahle
amotunt of work (168 days in 1935) is entitled to back pay to the
extent of the average work given the more steadily employed irregu-
lar workers. McLeod and McNeill are entitled to back pay to the
extent of average work given by the respondents since March 30,
1936, to the more irregularly employed workers; and we shall so
order.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon the
entire record in the proceeding, the Board finds and concludes as a
matter of law:
1. The Piano and Furniture Movers, Drivers, Packers and Help-
ers Local Union No. 82 is a labor organization within the meaning
of Section 2, subdivision (5) of the Act.
2. The respondents, by discharging Harry Kaplan, Patrick Dona-
hue, Harry C. Letteney, and James McNeill, and each of them, and
by causing the severance of the employment of Raymond McLeod,
because they and each of them joined and assisted a labor organiza-
19 Exhibit B-5.
528 NATIONAL LABOR RELATIONS BOARD
tion, thus discriminating in regard to hire and tenure of employ-
ment to discourage membership in a labor organization, have en-
gaged in and are engaging in unfair labor practices, within the
meaning of Section 8, subdivision (3) of the Act.
3. The respondents, by interfering with, restraining and coercing
their employees in the exercise of the rights guaranteed in Section
7 of the Act, have engaged in and are engaging in unfair labor
practices, within the meaning of Section 8, subdivision (1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions
(6) and (7) of the Act.
ORDER
On the basis of the findings and conclusions of law, and pursuant
to Section 10, subdivision (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ents; Clark & Reid Company, Inc. and Curtis & Croston, Inc., and
their officers and agents, shall :
1. Cease and desist from in any manner interfering with, restrain-
ing or coercing their employees in the exercise of their rights to
self -organization, to form, join or assist labor organizations, to bar-
gain collectively through representat?ves of their own choosing, and'
to engage in concerted activities for the purposes of collective' bar-'
gaining or other mutual aid or protection, as guaranteed in Section
7 of the Act ;
2. Cease and desist from in any manner discouraging membership
in the Piano and Furniture Movers, Drivers, Packers and Helpers
Local Union No. 82, or any other labor organization, by discrimina-
tion in regard to hire or tenure of employment or any term or condi-
tion of employment, or by threats of such discrimination.
3. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act : -
(a) Offer to Harry Kaplan. Patrick Donahue, Harry C. Letteney,
James McNeill and Raymond McLeod, and each of them, immediate
,and full reinstatement, respectively, to their former positions, with-
out prejudice to their seniority or other rights and privileges previ-
ously enjoyed;
(b) Make whole the said Harry Kaplan and Patrick Donahue, and
each of them, for any losses of pay they have suffered by reason
of their discharge by payment to each of them, respectively, of a
sum of money equal to that which each of them, respectively, would-
normally have earned as wages during the period from the date of
the severance of his employment to the date of such offer of reinstate-
DECISIONS AND ORDERS 529
ment, computed at the wage rate each was paid at the time of such
discharge, less any amounts, if any, which each earned during such
period ;
(c) Make whole the said Harry C. Letteney, James McNeill and
Raymond McLeod, and each of them, for any losses of pay they have
suffered by reason of the severance of their employment by payment
to each of them, respectively, of a sum of money equal to that which
each of them, respectively, would normally have earned from the
date of the severance of his employment to the date of such offer of
reinstatement, computed, for each of them, at the average amount
earned by irregular employees of the respondents who were em-
ployed during such period to the same extent as each of them had
normally been employed ;
(d) Post notices in conspicuous places in the respondents' garage,
stating (1) that they will cease and desist as aforesaid; and (2) that
such notices will remain posted for a period of at least thirty (30)
consecutive days from the date of posting.