Gamble-Robinson Co.

National Labor Relations Board - Board Decisions

Jul 12, 1941

33 N.L.R.B. 351 (N.L.R.B. 1941)

In the Matter of GAMBLE-ROBINSON COMPANY and GENERAL DRIVERS
UNION LOCAL 116 OF THE INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, STABLEMEN & HELPERS OF AMERICA, AFFILIATED
WITH THE A. F. OF L.
Case No. C-1712.Decided July 12, 1941
Jurisdiction : fruit, grocery , and vegetable industry.
Unfair Labor Practices
Interference , Restraint , and Coercion : statements disparaging the anion; ques-
tioning, warning , and threatening employees with respect to their union
membership and activity.
Discrinminatcon: discharge and lay-off of two employees because of their union
membership and activity.
Remedial Orders : reinstatement and back pay ordered.
Misconduct prior to employment by respondent held no bar :o reinstate-
ment where employee disclosed such misconduct shortly after employment
by respondent 21/2 years prior to discharge and where there was no basis
for belief that admittedly satisfactory service of employee during period
of employment would not continue.
Mr. Lee Loevinger, for the Board.
Mr. L. P. McNally, of Minneapolis , Minn., for the respondent.
Mr. Raymond J. Compton, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by General Drivers
Union Local 116 of the International Brotherhood of Teamsters,
Chauffeurs, Stablemen & Helpers of America, affiliated with the
A. F. of L., herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Eighteenth Region (Minneapolis, Minnesota), issued its complaint
dated June 18, 1940, against Gamble-Robinson Company, Fargo,
North Dakota, herein called the respondent, alleging that the re-
spondent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1), (3), and
(5) and Section 2 (6) and (7) of the National Labor Relations
33 N. L. R. B., No. 73.
351
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, 49 Stat. 449, herein called the Act. Copies of the complaint
and notice of hearing were duly served upon the respondent and
the Union.
With respect to the unfair labor practices, the complaint, as
amended, alleged in substance that the respondent (1) on or about
April 12, 1940, discharged or laid off Ernest Remboldt, and on or
about April 14, 1940, discharged or laid off Carroll Dietz, and there-
after refused to reinstate said employees for the reason that they
joined and assisted the Union and engaged in concerted activities
for the purposes of collective bargaining and other mutual aid and
protection; (2) on or about February 23, 1940, and at all times there-
after, ,refused to bargain collectively with the Union as the exclu-
sive representative of its employees within an appropriate bargaining
unit, although the Union represented a majority of such employees;
(3) on or about January 1, 1937, to the date of filing of the com-
plaint herein, interrogated its employees concerning their union mem-
bership or affiliation, and advised, urged, -threatened, and warned
its employees to refrain from becoming or remaining members of
the Union or any other labor organization, and from assisting the
Union; and (4) by the afore-mentioned acts, and by other acts, inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
On June 27, 1940, the respondent filed an answer to- the complaint
admitting that it was engaged in interstate commerce within the
meaning of the Act, but denying that it had engaged in the unfair
labor practices alleged therein.
Pursuant to notice, a hearing was held at Fargo, North Dakota,
on July 1 and 2, 1940, before Peter F. Ward, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the
respondent were represented by counsel, participated in the hearing,
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues.
During the course,of the hearing, the Trial Examiner granted a
motion by counsel for the Board to dismiss these allegations of the
complaint alleging that the respondent had refused to bargain col-
lectively with the Union. At the conclusion of the Board's case,
counsel for the Board further moved to amend the complaint to con-
form to the proof with respect to variances in names and dates. The
motion was granted. The Trial Examiner reserved ruling on an ob-
jection by counsel for the Board to the admission in evidence of
Respondent's Exhibit No. 31 In his Intermediate Report issued
thereafter, the Trial Examiner overruled this objection and admitted
1 Respondent 's Exhibit No. 3 Is the letter written by Kreltzberg to Cook herein below
referred to.
GAMBLE-ROBINSON COMPANY 353
the exhibit in evidence. During the course of the hearing the Trial
Examiner made rulings on other motions and objections to the ad-
mission of evidence. The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
The Trial Examiner thereafter issued his Intermediate Report
dated October 21, 1940, copies of which were duly served on the par-
ties, in which he found that the respondent had engaged in unfair
labor practices within the meaning of Section 8 (1) and (3) and
Section 2 (6) and (7) of the Act. He accordingly recommended
that the respondent cease and desist from engaging in the unfair
labor practices, and that it reinstate with back pay the two employees
found by him to have been discriminatorily discharged.
On November 18, 1940, the respondent filed exceptions to the Inter-
mediate Report of the Trial Examiner, and on December 3, 1940, a
brief in support of its exceptions but did not request oral argument
before the Board. The Board has reviewed the exceptions to the In-
termediate Report and in so far as they are inconsistent with the
findings, conclusions, and order set forth below, finds them to be
without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a Delaware corporation, with its principal busi-
ness offices located at Minneapolis, Minnesota. It is engaged in the
general fruit, grocery, and vegetable business, and operates one or
more branch houses in the States of Iowa, Michigan, Minnesota,
Montana, North Dakota, South Dakota, Wisconsin, and Wyoming.
In 1939, the respondent purchased materials and products for its
Fargo, North Dakota, branch, the only one with which this proceed-
ing is concerned, valued at $668,169.54, of which over 90 percent came
from sources outside the State of North Dakota. During the same
year the total sales of merchandise at the Fargo branch amounted to
$755,923.34, of which approximately 15 percent were for shipment to
points outside the State of North Dakota.
II. THE ORGANIZATION INVOLVED
General Drivers Union Local 116 of the International Brother-
hood of Teamsters, Chauffeurs, Stablemen & Helpers of America, is
a labor organization affiliated with the American Federation of La-
bor. It admits to membership warehousemen and truck drivers em-
ployed by the respondent at its Fargo, North Dakota, branch. .
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. THE UNFAIR LABOR PRA CTICES
A: Interference, restraint, and coercion
In October 1937, while a strike was in progress at Fargo among
transfer employees not connected with the respondent, the Union
made an unsuccessful attempt to organize the respondent's employees.
Warner Onstine, a truck driver employed by the respondent, testi-
fied that during the strike, W. L. Halgren, vice president and division
manager of the respondent, addressed a meeting of the respondent's
employees. According to Onstine, Halgren stated that he had for-
merly belonged to a union but "found that it wasn't doing him any
good so he dropped out," and that those who joined the Union
"would always be truck drivers and laborers and never have any
chance of advancement." Halgren admitted that he addressed the
employees during the strike when the respondent's trucks were being
"forced to the curb, and the boys were having a little trouble," but
stated that he "just discussed the situation in general" and did not
mention having belonged to a union or otherwise discussing it. We
are convinced and find, as did the Trial Examiner, that Halgren
made the statements substantially as attributed to him by Onstine.
Lawrence Brinkman, also employed as a truck driver, testified that
in 1937 and 1938, during the period in which the Union succeeded
in organizing the Grand Forks employees of the respondent, David
C. Cook, general manager of the Fargo branch, advised him not to
join the Union and told him that he would be paid as much as any
union man received "regardless of what wages," and that "we were
better off without it, that we would be getting the same, be money
ahead as to be paying out dues, and we would only be working for one
party, things like that." Stanley Jones, another truck driver, testi-
fied that shortly after the 1937 strike Cook expressed his appreciation
of the "way that the boys had stood up to it, being loyal to the
company, and that we would reap our rewards for doing so." Jones
further testified that in November 1939, at one of the meetings reg-
ularly held six or seven times a year, Cook stated that the employees
"were getting as good as the union could give us and besides, that we
didn't have to pay tribute to an outsider." Warner Onstine also
testified that since 1937, at the employee meetings, Cook and the other
"bosses" had been talking against the union "pretty strong," and that
in 1939 Cook told the employees that it would be "pretty hard for us
to be loyal to two groups, that is, such as the union and Gamble=
Robinson Company at the same time." Seymour Anderson, who was
employed as "night banana man" likewise testified that at a meeting
of the employees in the summer or fall of 1938 Cook stated that "we
could save that money because he could get us whatever a union could
GAMBLE-ROBINSON COMPANY 355
get us." Ernest Remboldt and Carroll Dietz, hereinafter found to
have been discriminatorily discharged, testified that at 'the time they
were employed Cook questioned them concerning their attitude
toward unions, Dietz stating that Cook further told him that "all
the boys were very well satisfied there without belonging to any
..." Cook testified that pursuant to instructions from his su-
periors that "we had no rights with reference to talking to the boys,
whether they wanted to join a union or not, and that we should be
very careful not to make any commitments," he had not at any time
since January 1, 1937, made any reference to union activities at the
regular employee meetings. He further testified that other than a
statement to Dietz that it made no difference to him whether Dietz
joined "the Elks or any other lodge," and a response to Bill Henry
that he could not advise him as to his union activities, he had not
discussed the Union with any of the employees. Cook did not other-
wise specifically deny any of the statements above attributed to him
and we find, as did the Trial Examiner, that he made them substan-
tially as testified to by Brinkman, Onstine, Jones, Remboldt, and
Dietz.
On Sunday, February 18, 1910, 11 of the 21 warehouse employees
and truck drivers employed by the respondent, including William
Henry, night foreman of the warehouse, joined the Union, and the
following day appeared at work wearing union buttons. Henry
testified that 3 or 4 days later George Putz, day foreman of the
warehouse, advised him that he did not believe in the Union and did
not think it "right" that Henry should join inasmuch as he was a
foreman and the night foreman at the Grand Forks branch had not
joined the Union. Onstine and Jones, employees referred to above,
testified that the day after they joined the Union Putz also admon-
ished them for so doing. Onstine testified that Putz inquired why he
had joined the Union and what he thought he would gain by it, and
advised him that the respondent if it chose could "close the house"
and "pull those trucks off the road." Jones testified that when he
replied affirmatively to Putz's question as to whether he had joined the
Union, Putz told him that he would now "have to work real hard"
and that there would not be "any more coffee for you boys," referring
to the respondent's customary serving of coffee to its employees in
the morning and afternoon. Putz did not testify and we find, as did
the Trial Examiner, that he made. the statements substantially as
attributed to him by Henry, Onstine, and Jones.
The respondent contends in its exceptions and its brief that in ex-
hibiting hostility to the Union as set forth above, Halgren, Cook, and
Putz were expressing their personal views and were acting without
authority from the respondent. Lack of authorization, however, does
450122-42-vol. 33-24
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not relieve the respondent of responsibility for the anti-union activi-
ties of its supervisory employees where, as here, the respondent took
no effective steps to prevent their occurrence.2 Nor is there merit in
the respondent's further contention that the evidence fails to establish
that its employees were affected by or conscious of any interference,.
restraint, or coercion, from, the acts and statements complained of. In
Matter of Montgomery Ward and Company,,, we answered a similar
contention as follows :
It is sufficient that the conduct which constitutes the gravamen
of the unfair labor practice normally results in interference, re-
straint, and.coercion; it is immaterial that the prescribed conduct
does not produce the desired result. The respondent's invasion of
the field of union activity which the Act reserves as a matter of
right to the employees is in itself an unfair Tabor practice.
We find that by the activities of Halgren, Cook, and Putz, as out-
lined above, in disparaging the Union and in questioning, warning,
and threatening employees with respect thereto, the respondent has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
B. The discriminatory discharge and lay-off
Carroll M. Dietz was employed by the respondent on August 6,1937,
as a warehouseman, in which capacity he was continuously employed
until his discharge on April 14, 1940. From December 1933 to April
1937, prior to his employment by the respondent, Dietz had worked as
a shipping clerk for one H. L. Haines, who operated a grocery store at
Missoula, Montana. Dietz had been discharged by Haines for the theft
2 In Swift & Company v. National Labor Relations Board, 106 F. (2d) 87 ( C. C. A. 10),
enforcing as modified Matter of Swift & Company, a corporation and Amalgamated Meat
Cutters and Butcher Workmen of North America , Local No. 641, et al., 7 N. L. R. B. 269,
the court disposed of a similar defense, stating :
While the evidence showed that Middaugh , the plant manager, and Young, the
plant superintendent , repeatedly warned against violations of the National Labor
Relations Act and solicitation of union membership on petitioner 's premises during
working hours , they took no effective means to stop repeated violations of the Act.
Furthermore , with respect to the acts of the supervisory foremen, the doctrine of
respondeat superior applies and petitioner is responsible for the actions of its super-
visory foremen , even though it had no actual participation therein.
See also National Labor Relations Board v The A S. Abell Co ., 98 F. (2d ) 951 (C. C. A. 4),
enforcing as modified Matter of The A. S. Abell Company, a corporation and International
Printing and Pressmen's Union, Baltimore Branch, Baltimore Web Pressmen 's Union,
No. 31, 5 N. L. R. B. 644; Titan Metal Manufacturing, et al. v. N. L. R. B., 106 F. (2d)
254 (C. C. A. 3), enforcing Matter of Titan Metal Manufacturing Company and Federal
Labor Union No. 19981 , 5 N L. R. B. 577 ; International Association of Machinists V.
N L. R. B, 311 U. S. 72, aff'g 110 F. (2d) 29 (App D C.), enf'g Matter of The Serrick
Corporation and International Union, United Automobile Workers of America, Local
No 459, 8 N. L. R B. 621.
,,'Matter of Montgomery Ward and Company and Warehouse Employees ' Union No. 20,297
affiliated with the A . F. of L., 17 N. L. R. B., 191.
GAMBLE-ROBINSON COMPANY 357
of money and merchandise in restitution of which Dietz had given
Haines his promissory note for $500.
Shortly after entering the respondent's employ, Dietz was required
to fill out an application for bond in conformity with the respondent's
regulations that all employees be bonded. Dietz testified that when he
received the application he went to Cook, the general manager, and
told him the facts concerning his trouble with Haines and asked what
he should do. According to Dietz, Cook replied that the incident was
a "black blot" on Dietz's name, but that by coming to him and "telling
him the thing straight through," he would have more confidence in
Dietz, and advised Dietz to fill out the application as well as he could.
Dietz did so, listing Haines as a former employer. Several weeks later
Dietz received a letter from Haines inclosing an inquiry from the bond-
ing company and asking what Dietz wished him to do about it. Dietz
testified that he again consulted Cook, who told him that he had made
a mistake in giving Haines as a reference, but suggested that Dietz
write Haines to the effect that if Haines "felt that he could conscienti-
ously return this inquiry to the bonding company" it would be greatly
appreciated. Cook testified that in telling him of his difficulty with
Haines Dietz stated that he had been wrongfully accused, that he had
not taken any merchandise from Haines, and that he "was sort of a
victim of circumstances." In view of Cook's subsequent action, as
hereinafter set forth, in reporting to his superiors Dietz's admission of
the cause of his prior discharge, we credit Dietz's testimony and find,
as did the Trial Examiner, that in the fall of 1937, prior to the ap-
proval of his bond, Dietz told Cook the principal facts regarding his
trouble with Haines. We also find, as Dietz testified, that Cook advised
him and commended him for his frankness.
In January 1938 Dietz, according to his testimony, asked Cook if
he had heard anything further from the bonding company. Cook
replied that he had not, adding that although he had some difficulty
over the matter, it was "o. k. now." Dietz further testified that he'
told Cook that he had developed an inferiority complex over the whole
thing and that Cook replied, "You don't need to have at all . . . I trust
you more than I do any man on the night crew." Cook's testimony
concerning the incident was limited to a denial that he told Dietz that
he had had trouble in connection with his bond. We find, as did the
Trial Examiner, that Cook made the statements substantially as at-
tributed to him by Dietz.
Dietz was one of the 11 employees who, as stated above, joined the
Union on February 18, 1940, and went to work that night wearing
his union button. Dietz testified that as he was going off shift the
following morning he met Foreman Putz who asked him, "what did
you do it for?" When Dietz replied that the night crew felt that
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they had been working nights for a long time, whereas some new men
had been hired and given better jobs on the day crew, Putz said, "I
will tell you, up to now you fellows have had it pretty much your own
way, but from now on it is going to be hell to pay." As already stated,
Putz did not testify. The Trial Examiner credited Dietz's testimony
and we find that Putz made the remarks above attributed to him by
Dietz. Three or four days later, according to the testimony of Dietz,
Cook approached Dietz while working and said, "Well, what have you
got to say to me." When Dietz replied, "nothing that I know of,"
Cook told him, "I have just had tears in my eyes, I have information
that your bond won't go through." Dietz then requested the name of
the bonding company, and Cook replied that he did not•know the
name. Dietz further asked Cook if he had any reason to doubt his
honesty, and received a reply in the negative. Dietz testified that
on this occasion Cook also told him that he could "join the Kiwanis
and anything you want to, but remember, Dave Cook is still the man-
ager." A week or so later Dietz, according to his testimony, again
asked Cook for the name of the bonding company in order to "get
the thing straightened up." Cook reiterated that he did not know
the name and that in any event it would be of no avail to write to
the bonding company' since it covered men all over the United States
and would not be cognizant of Dietz as an individual. Cook then sug-
gested that he get another job and use his record with the respondent as
"a boost." When Dietz asked, "Well then, ultimately I can expect to
be laid off," Cook replied, "no," adding, "Well, I will tell you, Car-
roll, you play ball with me and I will • play ball with you." Cook
was not questioned concerning the foregoing conversations and his only
testimony with reference to any conversation with Dietz relevant
thereto was, as stated hereinbefore, that in answer to an inquiry by
Dietz as to whether his union membership had changed his status in
the plant, he had told Dietz that it made no difference "whether he
belonged to the Elks or any other lodge." ' We credit Dietz's testimony
and find, as did the Trial Examiner, that after Dietz joined the Union
Cook admonished him for so doing, told him that there was some
question about his bond, suggested that he find another job, and
remarked that if Dietz would "play ball" he would do likewise.
The following week, Dietz wrote Halgren, the division manager who
had been in Florida since the latter part of January 1940 and advised
him of the membership acquired by the Union among the respondent's
employees during Halgren's absence. About March 1, 1940, Halgren
returned from Florida and requested Cook to give him the names of
the employees who had joined the Union. Cook did so, basing his
information upon a check of the employees made after they first
GAMBLE-ROBINSON COMPANY 359
appeared at work wearing union buttons." Cook also advised Halgren
for the first time of the difficulty in which Dietz had been involved
during his previous employment with Haines. Cook and Halgren
thereupon decided to write to J. S. Kreitzberg, the respondent's branch
manager in Missoula, to investigate the circumstances surrounding
Dietz's discharge by Haines. In response to his inquiry, Cook received
from Kreitzberg a letter dated March 13, 1940, reading in part as
follows :
Your letter of March 11th just received in reference to Carroll
M. Dietz. This party did work for-H. L. Haines clerking, in one
of his retail stores, in fact I knew this party myself. His record
with Haines is very bad, at the time he left Haines employ I heard
he had been caught stealing.
I just had a talk with Mr. Covey, manager and right-hand man
for Harry Haines, and he confirmed this report. He stated this
party stole several hundred dollars from them; how much they
will never know, and in addition a lot of merchandise, cigarettes,
hams, etc.
He says this party is very clever the way he operates, but is
nothing but a crook.
Do not believe I ever made a report like this on anyone, but if
you have this party in your employ, it certainly is to the company's
good that you have the correct information at once.
Immediately after receiving th above letter Cook conferred with
Halgren, who advised him to report the matter to Stanley Corbell, the
respondent's personnel manager in the Minneapolis office. Before he
saw Corbell, however, Cook forwarded Kreitzberg's letter to J. G.
Scott, the respondent's first vice president, who was also in the Minne-
apolis office .5 Cook did not see Corbell until April 6, when Corbell
came to Fargo to attend a credit conference. At the time Dietz, who
had been ill since the latter part of March, was not working." Corbell
testified that Cook told him that he was "very much worried; that he
had been withholding some information from us at the home office about
* On or about March 11 , 1940 , the Union , claiming to represent a majority of the
respondent ' s employees , presented a proposed contract to Halgren for his consideration.
A few days later Halgren, in response to an inquiry by the Union , stated that be would
not discuss the contract , since it was his understanding that the Union did not have a
majority membership . On March 15 , 1940, the Union filed charges with the Board
alleging the respondent 's refusal to bargain . As hereinbefore stated, this charge was
dismissed by the Trial Examiner at the hearing upon'motion by counsel for the Board.
6 It is clear that Scott was cognizant of Dietz's membership in the Union , since on or
about April 2, 1940, he discussed with a Field Examiner for the Board the possibility
of discharging Dietz. The Field Examiner told Scott that he could not advise him what
to do but made the observation , with which Scott agreed, that if the respondent discharged
Dietz, the Union would undoubtedly regard it as a discriminatory act aimed at the
destruction of its alleged majority membership.
360 " DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the past record of this man Dietz; that there was some contest or
threatened contest on here about that time about organizing a branch;
that he realized this information should have been reported in, but
wasn't, and he wondered what to do about it." Corbell told Cook to
forward Dietz's personnel file to him and not to "rehire" Dietz until
he was further advised. Corbell returned to Minneapolis on Monday,
April 8, and the following day talked to a representative of the bonding
company. Corbell also wrote a letter to the bonding company, setting
forth the above-quoted portion of Kreitzberg's letter concerning Dietz
and requesting that it notify, the respondent after investigation and
consideration whether Dietz's bond would be continued in force.
The second week in April, Dietz notified Putz that he would report
for work on the night of April 14. On Saturday, April 13, Cook
informed Corbell of Dietz's intention to return to work and asked for
instructions. Corbell, who had in, the meantime discussed the matter
with Scott, told Cook that under no circumstances should Dietz be
permitted to return to work. On the afternoon of April 14, Cook went
to Dietz's home and informed him that he was discharged under in-
structions from the Minneapolis office and that his bond was being
cancelled.°
The respondent contends that its belated investigation of Dietz was
prompted by the disappearance in January 1940 of four packs of play-
ing cards and the discovery of other shortages amounting to approxi-
mately $1,600 as revealed by the respondent's financial statement for
1939. Cook testified that he first discussed the matter with Halgren in
January and, in accordance with Halgren's suggestion, made a local
check of the employees, but was unsuccessful in fixing responsibility for
the shortages. Cook's testimony concerning the manner in which he
"checked" on the employees was vague and unconvincing and while he
asserted that he talked to Henry, the night foreman under whom Dietz
worked, concerning the shortages, we credit, as did the Trial Examiner,
Henry's testimony to the contrary. Cook further testified that he was
impelled to disclose Dietz's prior employment record when Halgren
upon his return from Florida suggested that Cook also check the refer-
ences of the employees. However, as pointed out by the Trial Exam-
iner, it is significant that although Cook allegedly had discussed the
shortages with Halgren in January he did not deem it necessary to
advise Halgren about Dietz until March, shortly after Dietz had,
joined the Union. Cook did not suggest, nor does the respondent con-
' It is noted that the respondent at this time had no definite information that the
bond was being cancelled . The letter from the bonding company to the respondent advis-
ing that Dietz ' s bond had been cancelled was dated April 18, 1940 , 4 days after Dietz
was discharged , and was received by Corbell on or about April 20, 1940. Corbell, how-
ever, testified that Dietz was discharged on the basis of the information received from
Kreitzberg and that the respondent merely wanted the cancellation of the bond "as
corroboration."
GAMBLE-ROBINSION COMPANY 361
tend, that Dietz was other than an honest and capable employee during
his more than 21/2 years of service with the respondent. In view of the
fact that Cook admonished Dietz for joining the Union and revived
the bond incident with the inference that it would be forgotten if
Dietz would "play ball," i. e. abandon the Union, we find, as did the
Trial Examiner, that Cook disclosed Dietz's past record because he
joined the Union.
We are also convinced, and further find, that Halgren did not deter-
mine to investigate Dietz because of the alleged shortages, as the
respondent contends, but rather joined with Cook in procuring a
plausible justification for Dietz's discharge with the intention of thus
destroying the majority membership then claimed by the Union. To
find otherwise would be to ignore the anti-union statements made by
Halgren in addressing the respondent's employees during the 1937
strike and the fact that at approximately the same time as Cook
divulged his information regarding Dietz, Halgren had requested
Cook to furnish him with the names of the employees who had joined
the Union.7 The respondent does not mention the part thus played by
Halgren, its vice president and division manager, in the investigation
of Dietz, and refers only to Cook in maintaining that whatever may
have been Cook's motive in making his disclosure concerning Dietz, it
does not affect the fact that Scott and Corbell, who were not shown to
be hostile to the Union, determined to discharge Dietz as soon as they
learned of his past record. We see no merit in this contention and we
are satisfied that the respondent, in discharging Dietz; was impelled by,
his union activity. Moreover, the fact that Scott and Corbell appear
to have made the actual decision to discharge Dietz does not relieve the
respondent of responsibility for the discriminatory conduct of either
Cook or Halgren in jointly effecting Dietz's dismissal.
We find that Carroll M. Dietz was discharged on April 14, 1940,
and was refused reinstatement because of his.membership and activity
in the Union, and that by his discharge the respondent has discrim-
inated in regard to the hire and tenure of his employment,. thereby
discouraging membership in a labor organization. We further find
that the respondent thereby interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
Ernest Remboldt was employed as a truck driver by the respondent
on or about October 1, 1938. He secured his employment through
Theodore W. Hoofer, a truck driver employed by the respondent, who
was then resigning to operate a hotel at Streeter, North Dakota.
7 We note here Halgren's testimony that when the Union committee asked him if he
was ready to talk about the proposed contract , Halgren replied "that there was nothing
to talk about ; that it was my understanding that they did not represent the majority
of the employees ." See footnote 4, supra.
362 DECISIONS OF NATIONAL LABOR- RELATIO BOARD
Hoofer, who himself had formerly employed Remboldt as a truck
driver, recommended to Cook that Remboldt be given his position.
As we have found above, at the time Remboldt was employed Cook
questioned him concerning his attitude toward unions, to which Rem-
boldt replied that since he had no previous experience with unions he
knew nothing about them. Remboldt joined the Union on February
18, 1940, the same day Carroll Dietz and nine other employees became
members.
On or about April 15, 1940, certain restrictions were placed upon the
use of the highways in the vicinity of Fargo which necessitated the
"withdrawal from operation of the respondent's trucks. Remboldt was
accordingly laid off and, as he testified, was advised by Cook that he
would be recalled to work as, soon as the highway restrictions were
removed, which would be in about 2 or 3 weeks. About the middle
of May, after the restrictions were no longer in force, Remboldt saw
Cook and asked him about returning to work. Cook told Remboldt
that Hoofer had returned to his former job and that Remboldt would
get "back on" when business picked up, but would be given "a different
job." 8 When Remboldt protested that it was unfair that Hoofer be
given his job, Cook replied that it was understood that Hoofer was to
be given his former position with the respondent whenever he became
dissatisfied with operating the hotel, and that Remboldt had agreed
to this arrangement at the time he was employed. Remboldt denied
that any such agreement had been made.
The respondent contends, as did Cook above, that at the time, Hoofer
resigned to enter the hotel business Remboldt and Hoofer had agreed
that Remboldt would relinquish his job if the hotel venture proved
unsuccessful and Hoofer desired to return to the respondent's employ.
Remboldt, however, denied that he had either made or discussed an
agreement of this nature at the time he was employed. Hoofer's
testimony on direct examination regarding the alleged understanding
concerning his job was,,in part, as follows:
Q. And what was said by you to Mr. Cook, and what did he
-say?
A. Well, he says that he hates to see me go, and that if I ever
feel that I would like to come back, why I should call him first,
he would like to have me work for him.
Q. Was anything else said about you getting your job back?
A. Well, •I wouldn't have to be afraid of getting it, because I
could always get it back.
8 Hoofer was reemployed about April 20, and worked in the warehouse until the removal
of the road restrictions permitted him to return to his formes trucking job.
GAMBLE-ROBINSON COMPANY 363
Q. Was anything more said by you to Mr. Cook about this chap
who was going to take your place, if you didn't like the hotel
business?
A. Well, I says, if I didn't like it, why I would try to come back
and take my job back again.
In response to cross-examination Hoofer further testified as follows :
Q. Well, what did you tell him [Remboldt] about work; did you
say, "There is an opening and if you would like it, I will help
you get it?"
A. I told him that I was quitting and that he could go in my
place.
Q. And is that about all you said to him?
A. That is all.
Q. Now you were present when you introduced Mr. Remboldt
and Mr. Cook and told Mr. Cook, "there is the man I spoke to you
about" and Cook said he would hire Remboldt, weren't you?
A. That is right.
Q. Did Mr. Cook say anything to Mr. Reinboldt at that time
about it being temporary job or did you say anything to him about
it being a temporary job?
A. Well, it was understood between the three of us right there
that I could have my job when I wanted it.
Q. Was anything said about that? "
A. No, there was nothing definite, because I didn't know how
the hotel would pan out.
* * * * * * *
Q. What gave you the impression that you would get the same
job back if you decided to quit the hotel business?
A. Because that is the job I wanted back.
Q. Well, you don't always get the job you want, do you?
A. I did.
Q. Well, I know, but what gave you the impression at that
time that you could have the job that you wanted back whenever
you wanted it?
A. I don't know.
Hoofer further testified that in February he made application for his
job in a letter to Cook, to which, under date of February 9, 1940, Cook
replied as follows :
Yes, Ted, we have been thinking of you frequently and are
very pleased to know that you will be interested in coming back
with us. It will be a matter of another month before we will
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have things opening up so that we will be operating in full force.
-We would rather you wait until then if you can.
We might tell you that if things break a little sooner than we
expect we will be more than anxious to get ahold of you.
It is obvious that the foregoing reply was not made in response to a
request for reinstatement to any particular position nor with refer-
ence to any such agreement as the respondent contends was made at
the time Hoofer resigned. While we do not doubt that Cook told
Hoofer that he regretted his leaving and would be glad to reemploy
him in the future should the occasion arise, we find, as did the Trial
Examiner, that the evidence fails to establish that Cook agreed to dis-
charge Remboldt should Hoofer desire to return after his venture in
the hotel business, or that Remboldt was ever advised prior to his
lay-off that his employment was thus limited. It should be noted that
Cook wrote the above letter to Hoofer 9 days before Remboldt joined
the Union and prior to the time Cook and Halgren discussed the or-
ganization of the `Union and, as we have found above in connection
with Dietz's discharge, resolved to prevent it from becoming the bar-
gaining representative of the respondent's employees. We further
observe that Remboldt was laid off at approximately the same time
as Dietz was discharged, and that Hoofer, who did not join the Union,
was reemployed 5 days later. This sequence of events, coupled with
our finding that Dietz was discharged pursuant to the afore-mentioned
determination by Cook and Halgren to undermine the organization
already achieved by the Union, lead us to the conclusion that Rem-
boldt was likewise laid off and subsequently refused reinstatement to
his former position because of his membership in the Union.
We find that Ernest Remboldt was laid off on or about April 15,
1940, and was thereafter refused reinstatement because of his mem-
bership and activity in the Union, and that by his discharge the
respondent has discriminated in regard to the hire and tenure of his
employment, thereby discouraging membership in- a labor organiza-
tion. We further find that the respondent thereby interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above,
occurring in connection with the operations of the respondent described
in Section I, above, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
GAMBLE-ROBINSON COMPANY
V. THE REMEDY
365
We have found that the respondent has engaged in certain unfair
labor practices. We will, therefore, order the respondent to cease
and desist therefrom and, to effectuate the purposes of the Act, also
order the respondent to post notices stating that it will not engage in
the conduct from which it is ordered to cease and desist.
We have found that the respondent discriminatorily discharged
Carroll M. Dietz and laid off Remboldt because of their membership
in the Union. With respect to Dietz, the respondent contends, in
effect, that his reinstatement is barred because of his admitted prior
misconduct. We do not deem it proper, however, to withhold rein-
statement solely because of past conduct where reinstatement is other-
wise necessary and appropriate to remedy the situation created by
the respondent's unfair labor practices. Dietz had given satisfactory
service to the respondent for over 21/2 years, and shortly after he was
employed had been commended by Cook for his frankness in disclosing
his difficulty with Haines. There is no claim that Dietz has engaged
in any misconduct since his employment by the respondent. As already
stated, the belated investigation of Dietz's past record was made
for the sole purpose of procuring an ostensible reason for his dis-
criminatory discharge. Under all the circumstances, we believe that
Dietz's prior misconduct does not warrant a,denial of reinstatement.
We find that the situation resulting from his discriminatory discharge
will best be remedied and the purposes and policy of the Act effectuated
through his reinstatement.
Accordingly, we will order the respondent to offer Carroll M. Dietz
and Ernest Remboldt reinstatement to their former positions without
prejudice to their seniority and other rights and privileges. We will
also order the respondent to make, them whole for any loss of pay
they have suffered by reason of the respondent's discrimination by
payment to each of them of a sum of money equal to the amount which
he normally would have earned as wages from the date of the, dis-
crimination to the date of the offer of reinstatement, less his net
earnings 9 during that period.
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following:
9 By "net earnings" Is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union , Local 2590 , 8 N. L. R. B. 440. Monies received
for work performed upon Federal, State, county, municipal , or other work-relief projects
shall be considered as earnings . See Republic Steel Corporation v. National Labor Rela-
taons Board, 311 U. S. 7.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. General Drivers Union Local 116 of the International Brother-
hood of Teamsters , Chauffeurs, Stablemen & Helpers of America,
affiliated with the A. F. of L., is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Carroll M. Dietz and Ernest Remboldt , thereby discouraging
membership in General Drivers Union Local 116 of the International
Brotherhood of Teamsters , Chauffeurs , Stablemen & Helpers of
America, affiliated with the A. F. of L., the respondent has engaged
in and is engaging in unfair labor practices , within the meaning of
Section 8 (3) of the Act.
3. By interfering with, restraining , and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce , within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
Gamble-Robinson Company, Fargo, North Dakota , and its officers,
agents, successors , and assigns , shall.
1. Cease and desist from :
(a) Discouraging membership in General Drivers Union Local 116
of the International Brotherhood of Teamsters , Chauffeurs , Stablemen
& Helpers of America, affiliated with the A. F. of L ., or any other labor
organization of its employees , by discriminating in regard to their
hire and tenure of employment or any terms or conditions of their
employment ;
(b) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the right to self-organization , to form,
join, or assist labor organizations , to bargain collectively through
representatives of their own choosing , and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Carroll M. Dietz and Ernest Remboldt immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges;
GAMBLE =ROBINSON COMPANY 367
(b) Make whole said Carroll M. Dietz and Ernest Remboldt for any
loss of pay they may have suffered by reason of the respondent's dis-
crimination against them by payment to each of them of a sum of
money equal to that which he would normally have earned as wages
'from the date-of his discharge to the date of such offer of reinstate-
ment, less his net earnings during said period.
(c) Immediately post notices to its employees in conspicuous places
throughout its plant at Fargo, North Dakota, and maintain such
notices for a period of at least sixty (60) days from the date of posting,
stating (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a) and (b)
of this Order; (2) that it will take the affirmative action set forth in
paragraphs 2 (a) and (b) of this Order; and (3) that its employees
are free to join and remain members of General Drivers Union Local
116 of the International Brotherhood of Teamsters, Chauffeurs,
Stablemen & Helpers of America, affiliated with the A. F. of L., and
that it will not discriminate against any employee because of member-
ship or activity in said labor organization; '
(d) Notify the Regional Director for the Eighteenth Region in
writing within ten (10) days from the date of -this Order what-steps
the respondent has taken to comply herewith.