J. J. Stanton Transportation Co.

National Labor Relations Board - Board Decisions

Sep 30, 1941

35 N.L.R.B. 1100 (N.L.R.B. 1941)

In the Matter of J. J. STANTON, DOING BUSINESS AS J. J. STANTON
TRANSPORTATION COMPANY and INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, STABLEMEN AND HELPERS OF AMERICA,
LOCAL UNION No. 13
Case No. C-4755.-Decided September 30, 1941
Jurisdiction : motor transportation industry.
Unfair Labor Practices
Iisterfelence, Restraint, and Coeicion: anti-union statements; threatened cessa-
tion of operations.
Discrimination: discharges, lay-offs, and transfer of one employee resulting in
a decrease in his earnings because union membership and activities.
Remedial Orders : since bona fides of respondent's sale of business is not in issue
discriminatorily discharged employees ordered to be hired before any other
persons in event respondent reenters business-back pay awarded; discharged
,employees from date of discrimination to date respondent sold business ;
laid-off employees for period of discriminatory lay-off; transferred employee
.from date of transfer to date respondent sold business including increased
living expenses incurred by reason of such transfer. .
Mr. Paul S. Kuelth,aiu, and Mr. W. Y. Morris, for the Board.
Mr. Wilbur M. Alter, of Denver, Colo., for the respondent.
.Mr. R. R. Keigley, of Denver, Colo., for the Union.
Mr. Eugene M. Purver, of counsel to the Board.
DECISION
- AND
ORDER
STATEMENT OF'THE CASE
Upon charges and amended charges duly filed by International
Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of
America, Local Union No. 13, affiliated with American Federation of
Labor, herein called the Union, the National Labor Relations Board,
herein called the Board, by the Regional Director for the Twenty-
second Region (Denver, Colorado), issued its complaint, dated Oc-
tober 5, 1940, against J. J. Stanton, doing business as J. J. Stanton
Transportation Company, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1)
and (3) and Section 2 (6) and (7) of the National Labor Relations
35 N. L. R. B, No. 202.
1100
J. J. STANTON 1101
Act, 49 Stat. 449, herein called the Act.' Copies of the complaint,
accompanied by notice of hearing, were duly served upon the
respondent and the Union.
With respect to the unfair labor practices,,the complaint alleged,
in substance, that the respondent (1) discriminated against 12 of his
employees for the reason that each of them had joined and assisted
the Union and had engaged in concerted activities for the purpose of
collective 'bargaining and other mutual aid and protection; and (2)
had, by threats, intimidation, acts of discrimination, and by other
acts, interfered with, restrained, and coerced his employees in the
exercise of the rights guaranteed in Section 7 of the Act.
On October 21, 1940, at the commencement of the hearing, the
respondent filed an answer denying that he had committed the unfair
labor practices alleged in the complaint.
Pursuant to notice, a hearing was held at Craig, Colorado, on
October 21 and 22, 1940, before Howard Myers, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and
the respondent were represented by counsel; the Union was
represented by its . business agent. All parties participated in
the hearing and were afforded full opportunity to be heard,
to.. examine`` and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. At the commencement of the hear-
ing, counsel for the Board moved to dismiss the complaint as
to one Clem Bordeaux. The Trial Examiner granted this mo-
tion. At the conclusion of the hearing, counsel for the respondent
moved to dismiss the complaint for failure of proof. The Trial
Examiner reserved decision on the motion and thereafter denied
it in his Intermediate Report. During the course of the hearing,
the Trial Examiner made several rulings on other motions and on
-objections to the admission 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.
On December 4, 1940, the Trial Examiner issued his Intermediate
Report, finding 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 and recommending that he cease and
desist therefrom and take certain affirmative action necessary to
' This case was consolidated with Matter of Walter Utzinger, doing business as J. J
Stanton Transportation Company (C-1718) and a single complaint was issued in the pro-
ceeding. Prior to the introduction of evidence at the commencement of the hearing, the
case against Walter Utzinger was settled by stipulation . On October 23, 1940, acting
pursuant to Article II, Section 36 (d) of National Labor Relations Board Rules and Reg-
ulations-Series 2, as amended, the Board ordered a severance of the two cases. A
separate decision in the Walter Utzinger case was issued by the Board on November 18,
1940 ( 28 N. L. R. B. 13 ) The Decision and Order herein are concerned only with
the proceeding against J J. Stanton , doing business as J. J Stanton Transportation
Company.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,
effectuate the policies of the Act. The respondent filed exceptions
to the Intermediate Report and a brief and requested permission to
argue orally before the Board.
Pursuant to notice, a hearing was held before the Board at Wash-
ington, D. C., on January 28, 1941, for the purpose of oral argu-
ment. The respondent was represented by counsel; the Union did
not appear. The Board has considered the exceptions to the Inter-
mediate Report and the brief in support thereof and, in so far as the
exceptions are inconsistent with the findings, conclusions, and order
set forth below, finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FIDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
J. J. Stanton, doing business as J. J. Stanton Transportation
Company, was, until May 20, 1940, the date on which he sold his
business, owner and operator of a transportation business located
at Craig, Colorado, where he maintained an office, a garage, and
warehouses. The transportation business was devoted to the haul-
ing by truck of various types of articles, including gilsonite ore,
oil, gasoline, livestock, drilling rigs, and oil supplies. Average
monthly hauls were in excess of 2,500 tons, for which J. J. Stanton
received an average of approximately $2.50 per ton. More than 50
per cent of these materials were transported by J. J. Stanton be-
tween Craig, Colorado, and points outside the State of Colorado.
During February 1940, the respondent employed approximately 21
men.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Stablemen
and Helpers of America, Local Union No. 13, affiliated with the
American Federation of Labor, is a labor organization- admitting to
membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
During November 1939 James H. Crouse, James Duncan, Vern
McLean, and Fred Wilson, four of the respondent's truck drivers,
decided that organization `of their fellow workers was desirable and
necessary and attempted to enlist the aid of the American Federa-
tion of Labor toward that end. Accordingly, Crouse and several
of his fellow workers conferred with a union organizer who advised
them how to obtain a charter for a separate local. In December
J. J. STANTON 1103
1939 Crouse circulated among the respondent's employees an applica-
tion for a charter, which was signed by all but two of the truck
drivers and dockmen. However, the plan to set up a separate local
for the respondent's employees was abandoned and, instead, all but
four of them applied for membership in the Union and were ad-
mitted on February 8, 1940.
Dock Foreman Ernest E. Sullivan expressed disapproval of the
initial efforts to form a union and threatened the men with dis-
charge if they persisted in self-organization. Thus, Sam Lippard
and D. S. Lippard, two of the dockmen, testified that during No-
vember 1939 Sullivan stated 'to them that if the men joined a union
they would be discharged and replaced. Jim Garrett, one of the
respondent's truck drivers, testified that Sullivan told him in De-
cember 1939 that the respondent would replace the men if they
joined a union, that he would not tolerate a union in his business,
and that "the union done more harm than good." Although Sulli-
van denied having made these statements, we believe the testimony
of the Lippards and Garrett, which is mutually corroborative, and
find, as did the Trial Examiner, that Sullivan made the statements
thus attributed to him.
Early in January 1940 Crouse, McLean, and Sam and D. S.
Lippard were discharged. Shortly thereafter, according to the
credible testimony of Clem Bordeaux, one of the respondent's truck
drivers, Sullivan told him that he had heard that McLean was "try-
ing to start a 'union organization around here" and that he did not
think that the respondent "would stand for anything like that around
here." Although Sullivan denied having discussed union matters
with Bordeaux, we do not credit his denial and find, as did the
Trial Examiner, that Sullivan made the remarks attributed to him
by Bordeaux.
Lichtenhahn, one of the respondent's dockmen, testified, and we
believe him, that shortly after the discharges of January, Sullivan
told him that the Lippards should have known better than to join
the Union. Sullivan did not deny having made this statement.
On January 12, 1940, the Union filed charges with the Regional
Director for the Twenty-second Region, alleging that Crouse,
McLean, and the Lippards had been discriminatorily discharged. At
a conference with the Regional Director, the respondent agreed to
put the four men back to work and to post a notice for 60 consecu-
tive days stating that the employees were free to join or assist the
Union or any other labor organization, and that he would not dis-
charge or discriminate against any employee because of member-
ship or activity in that or any other labor organization. The Union
then withdrew its charges.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 15, 1940, the four men were reinstated, and the
respondent posted a notice following the language agreed upon with
the Regional Director. Although the agreement with the Regional
Director required that the notice be posted for 60 consecutive days,
it was displayed for less than 24 hours. Stanton admitted that the
notice had remained posted for less than 24 hours and that it was
not until about a month later, as -a result of a conference with the
Regional Director, that he agreed to, and did, repost the notice. We
find that the respondent did not intend in good faith to maintain an
attitude of neutrality toward the union activity of his employees.
That the respondent made no pretense at complying with his
agreement to cease interference with the organizational efforts of the
employees is further evident from the conduct of Stanton and Sulli-
van during the period which followed Stanton's conference' with
the Regional Director in January. After the reinstatement of the
Lippards,, Crouse, and McLean, the respondent's previous opposition
to the Union continued. Lichtenhahn testified that on February 21,
upon his return from a trip to the Board's Regional Office and to
union headquarters, Sullivan questioned him about his trip and
attempted to obtain information regarding the organization of the
Union and its leaders. Sullivan denied having discussed union mem-
bership and activity with Lichtenhahn at this time. We do not
credit Sullivan's denial and find, as did the Trial Examiner; that he
interrogated Lichtenhahn concerning the Union on February 21.
Jim Duncan, another of the respondent's truck drivers and a
member of the Union, testified that in the course of a conversation
with Stanton in March 1940 the latter questioned him regarding
the Union and informed him that only seven of the employees wanted
the Union; that the employees did not need a union; and that he
was going to try to come to terms with the employees without the
intervention of any union. Stanton admitted that he had talked
with Duncan at that time and stated that Duncan had offered the
information concerning his union affiliation. The record affords uc
basis for finding that Duncan volunteered information to his superior
concerning his union affiliation. We consequentlyfind, as did the
Trial Examiner, that Stanton's conversation with Duncan took place
in accordance with the latter's testimony.
On March 31, 1940, Vern McLean, Jim Garrett. H. K. Wilson,
James Crouse, and C. M. Lichtenhahn, all truck drivers for the
respondent, were discharged. Wilson testified that shortly thereafter,
about April 10, 1940, when he was reemployed, Stanton asked him
why he had joined "this damned union" and said, "I know it is nor
going to hurt me any because I know we are not going to have any
union. I own this outfit and I will lock the doors before 1 have a
i
J. J.^ STANTON , 1105
union." Wilson further testified that during the conversation Stan-
ton said that Crouse, who had been most active in organizing the
employees, was a "drifter" and would soon leave the Union, and that
the men would be left "holding the sack." In reply to a question by
Wilson as to why union men were being discharged and non-union
men retained, Stanton, according to Wilson's continued testimony,
replied, "What do you expect?" Stanton did no deny having made
any of the statements concerning which Wilson testified, and we find
them to be true, as did the Trial Examiner. Paul Ashford, who had
formerly driven a truck for the respondent, testified without con-
tradiction, and we believe him, as did the Trial Examiner, that when
he applied to the respondent for reemployment on April 11, 1940,
after almost a year's absence due to illness, the latter told him not
to listen "to these union guys. They try to fill you full of this union
stuff," that "the dirty sons of bitches are never going to get anywhere
with this union anyway," and that there would never be any union in
his business.
We find that the foregoing statements and conduct of Stanton
and Sullivan were clearly intended to eliminate the Union and that
this result was in fact achieved by the time the respondent sold his
business. We find further that by such statements and conduct the
respondent has interfered with, restrained, and coerced his employees
in the exercise of the rights guaranteed in Section 7 of the Act.
B. The discharges
George E. Kothe was first employed by the respondent on Decem-
ber 1, 1938, and was shortly thereafter assigned to drive a truck..
Until the time of his discharge on February 14, 1940, he received
no complaints regarding his work. Kothe signed the application foi
a union charter in December 1939. In the light of Stanton's admis-
sion that he knew that three of the employees had joined the Union
and that he had been told most of the employees were members,
the inference is clear that Stanton knew of Kothe's membership in
the Union prior to his discharge, and we so find.
The respondent contends that he discharged Kothe because of the
latter's negligence in permitting 15 barrels of crude oil of the Texas
Company, a customer of the respondent, to overflow, thereby in-
curring a loss to the respondent of $15.75. In this connection Sulli-
van testified that, upon Stanton's return from a conference at the
Board's Regional Office concerning the alleged discriminations of
January 1940 against the Lippards, Crouse, and McLean, he told
Stanton of the Kothe incident and showed him a letter from the
Texas Company asking for reimbursement. Stanton testified that
he thereupon decided to, and did in fact, discharge Kothe. Kothe
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admitted that on February 13, when he arrived at Wilson Creek,
he drove his truck to the filling pipe, "turned the valve on and got
down in the cab and went to sleep" because of physical exhaustion,
caused by the long hours he had been compelled to devote to his
work the previous night and during the entire period of his
assignment to this run.
For 2 weeks immediately preceding his discharge, Kothe's assign-
ment was to drive a truck from Craig to the Wilson Creek oil fields
of the Texas Company, to load the truck with crude oil, and to return
to Craig. Kothe testified without contradiction that the average
time of the round trip under good conditions, including loading,
was approximately 7 hours. The respondent introduced in evidence
freight bills showing that during the 2 weeks preceding the discharge
Kothe had made 25 round trips to and from Wilson Creek. The
respondent must consequently have realized that the strenuousness
of Kothe's assignment caused him to permit the oil wastage. In any
event, the respondent had never before regarded such an offense
as sufficiently serious to require discharge, for the record shows that,
although other drivers had on previous occasions permitted oil to
overflow while they were filling their trucks, there pis no showing
that the respondent reprimanded or disciplined them.
The Trial Examiner found, and we agree with him, that the re-
spondent did not discharge Kothe because of the "oil incident" but
rather because of Kothe's union activity. We find that the respondent
seized upon the oil incident as a pretext for the discharge.
On the basis of the above facts, we find that, by discharging and
thereafter refusing to reinstate George E. Kothe, the respondent
has discriminated in regard to the hire and tenure of employment of
George E. Kothe, thereby discouraging membership in the Union and
interfering with, restraining, and coercing his employees in the
exercise of their rights guaranteed in Section 7 of the Act.
-James H. Crouse and C. M. Lichtenhahn. Lichtenhahn was first
employed in the spring of 1939 as a truck driver and continued in
that capacity until he was discharged on March 31, 1940. Lichten-
hahn signed the application for the union charter in the early part
of January 1940 and soon thereafter became a member of the Union.
Sullivan, the respondent's foreman, admitted that he was aware
of Lichtenhahn's membership shortly after he had joined the Union.
Crouse was first employed as a truck driver on September 19, 1939.
He was the leader in the organizational drive among the respondent's
employees and remained its staunchest protagonist until the date of
his discharge on March 31, 1940. As shown above, soon after he
was employed by the respondent, Crouse became the moving spirit
in the drive to obtain a charter; he circulated the application for
J. J. STANTON 1107
the charter among the employees and obtained signatures from all
but two of them; thereafter he induced 16 of the 20 eligible em-
ployees to join the Union . Stanton admitted that he knew that
Crouse was the organizer and moving spirit of the Union and that
he was well aware of his influence among his fellow workers.
The respondent claimed that Litchenhahn and Crouse were laid
off on March 31 because business was slack. The claim was not sup-
ported by the production of any records tending to disclose the condi-
tion of the respondent 's business at that time . The sole proof offered
on this point was the testimony of Stanton and Sullivan that business
had decreased to a point where it became necessary to lay off several
truck drivers on March 31 , 1940. We find their testimony , unsup-
ported by such obviously available and reliable evidence as would
be reflected by the records of the respondent , to be unconvincing.
Even if business was in fact slack, we are not convinced that the
discharge of Lichtenhahn and Crouse was necessary for that reason.
According to the uncontradicted and credible testimony of employees
Duncan and Wilson , it had been the policy of the respondent during
periods of decreased business not to lay off employees but to distribute
the work among them in order to keep them on the pay roll as long
as there was work to be done. It was only the inefficient to whom this
continuity of employment was denied . No question was raised con-
cerning the efficiency of Lichtenhahn or Crouse . The respondent
offered no reason for departing from his custom , theretofore fol-
lowed , of dividing the work during slack periods . Moreover, three
truck drivers , hired by the respondent in January 1940 and obviously
having less seniority than Lichtenhahn or Crouse , continued in the
respondent 's employ until he sold his business.
There can be no doubt from the evidence , and we find , as did the
Trial Examiner, that the discharge of Lichtenhahn and Crouse was
not occasioned by lack of work, but rather by their prominent efforts
on behalf of the Union,, bf „ ,which Stanton and Sull^van were
admittedly aware.
On the basis of the above facts, we find that, by discharging James
H. Crouse and C. M. Lichtenhahn on March 31, 1940, and thereafter
refusing to reinstate them, the respondent has discriminated in regard
to the hire and tenure of employment of James H. Crouse and C. M.
Lichtenhahn , thereby discouraging membership in the Union and
interfering with, restraining, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act.
Cecil Hutchinson was first employed by the respondent as a full-time
dockhand in April 1939 , having previously worked on a part-time
basis . He signed the application for a charter and became a member
of the Union in the early part of February 1940.
451270-42-vol. 35-71
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sullivan testified that Hutchinson was discharged on February
21, 1940, because he had refused to perform his work assignment and
became abusive to Sullivan. Hutchinson admitted that he had told
Sullivan that he did not intend to do the work which he was directed
to perform, and testified that Sullivan thereupon took him to the office
and gave him his check and a discharge slip. There is no testimony
in the record to show that Sullivan, in requesting Hutchinson to per-
form the assignment in question, was ordering him to do work of an
inferior character to that which he had previously done. On the
contrary, it is clear that other dockhands were ordered to, and did
in fact, perform work similar to that which Hutchinson had declined.
Hutchinson thus refused to perform a task assigned to him and
consequently voluntarily severed his own employment status.
The Trial Examiner found, and we agree with him, that the respond-
ent did not discriminatorily discharge Hutchinson. We find'that the
respondent has not discriminated against Cecil Hutchinson because
of his membership or activity in the Union.
H. A. Tucker, D. S. Lippard, and Sam Lippard were employed
by the respondent as dockhands until their discharge by Stanton on
February 28, 1940. They signed the application for a charter late in
1939 and joined the Union on February -8, 1940. The undisputed
evidence shows that on February 28, 1940, the respondent entered into
a contract with an independent contractor for the performance of
work which these employees had previously been doing. The issue
of the respondent's good faith in entering into the contract was not
raised or litigated and is consequently not before us. The theory
of the alleged discrimination against these three men is that the
respondent retained in his employ another dockhand, who was not
a union member, and discharged the union members, any one of whom
could have done the work which the non-union man was retained
to perform. The evidence clearly shows that Hart, who was retained
by the respondent, was, after execution of the contract, assigned by
Stanton to work as a garage mechanic's helper and did some work as a
dockhand for the independent contractor. The respondent claimed
that Hart had had some experience as a mechanic's helper and that the
other three had had absolutely none. Tucker did not testify, and we
therefore accept Stanton's testimony that he lacked the necessary expe-
rience to perform the duties of a mechanic's helper. Both D. S.
Lippard and Sam Lippard admitted that they had had no experience
as a mechanic's helper. It is consequently clear, and we find, that
Hart was not preferred for retention because of his non-membership
in the Union.
We agree with the Trial Examiner and find that the evidence is
insufficient to support a finding that the respondent discriminatorily,
discharged H. A. Tucker, D. S. Lippard, and Sam Lippard.
J. J. STANTON 1109
We find that the respondent has not discriminated against H. A.
Tucker, D. S. Lippard, and Sam Lippard because of their membership
or activity in the Union.
C. The discriminatory lay-offs
H. K. Wilson, Vern McLean, and Jim Garrett worked continuously
as truck drivers for the respondent until their lay-offs on March 31,
1940. Wilson and McLean were first employed in 1935, and Garrett
was first employed during the spring of 1939. Wilson, McLean, and
Garrett signed the application for the union charter in December
1939 and were admitted to the Union in February 1940. Stanton
admitted that he was aware of Wilson's membership in the Union.
It is clear from the evidence that the respondent was also aware of
the union affiliation of McLean and Garrett. McLean was one of
the employees discharged on January 6, 1940, and reinstated on Feb-
ruary 15 as a result of negotiations with Board representatives after
the Union had filed charges alleging that he had been discharged
because of his membership in the Union. Since Stanton and Dock
Foreman Sullivan admitted knowledge of the union membership and
activities of four of the respondent's employees, since the membership
of four additional employees, including McLean, was made known
to Stanton after the Union had filed charges alleging discrimination
against them, whereupon they were reinstated, and since Stanton
testified that he had been told that most of the employees had joined
the Union, it is reasonable to infer that Stanton and Sullivan knew
of the union membership and activity of all other employees, including
Garrett. We find, therefore, as did the Trial Examiner, that the
respondent was aware of the union membership and activity of Wilson,
McLean, and Garrett.
On March 31 Sullivan informed Wilson, McLean, and Garrett that
they were to be laid off because of a slackening of business. We have
already found, in connection with the discharge of Crouse and Lichten-
hahn, that the respondent failed to establish his contention that his
business had decreased on March 31. We have also found that it had
been the respondent's previous policy to distribute the work among the
employees during slack periods and not to lay off any of them except
those who were inefficient. There is no showing that these three
men were inefficient.
McLean was rehired on April 7, 1940, Wilson on April 10, 1940,
and Garrett on April 14,1940. In light of the fact that the respondent
was aware of the union membership and activities of Wilson; McLean,
and Garrett, that he failed to prove a decrease in business, and that
in any event he departed from his former policy of distributing the
work during slack periods, we agree with the Trial Examiner and
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that the respondent discriminatorily laid off McLean, Wilson, and
Garrett on March 31, 1940, because of their union membership and
activity, thereby discouraging membership in the Union and inter-
fering with, restraining, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act.
D. The discriminatory assignment of work to Jim Duncan
Jim Duncan was employed by the respondent intermittently as a
truck driver from 1929 until December 4, 1938, from which time to
March 18, 1940, the date on which his work assignment was changed,
he worked continuously for the respondent as a truck driver. Dun-
can signed the application for a union charter in-December 1939 and
was admitted to membership in the Union in February 1940. On
March 18, 1940, Duncan, who had been assigned to the oil haul, was
transferred to the gilsonite haul. The transfer resulted in a decrease
in Duncan's earnings and an increase of approximately $12.50 a month
in his living expenses.
Duncan testified without contradiction, and we believe him, that
at the time of his transfer Stanton questioned him at some length
regarding the attitude of the employees toward the Union, asserted
that the employees did not need any protection from him since he
had always treated them well, asked him whether he would be satisfied
if he received the same wages on the gilsonite haul' as on the oil haul,
and promised to put him back on the oil haul later. Stanton ad-
mitted that he had asked Duncan whether the latter would be satisfied
if he received the same wages on the gilsonite haul as on the oil
haul and did not deny that he had made the remarks attributed to
him by Duncan. Stanton testified further that he had told Duncan
to "think it over and let me know and I will try to straighten it out,
not only for you but all of the rest of the men." We find that Stan-
ton's conversation with Duncan at the time of the transfer carried
with- it the clear inference that, if Duncan were no longer to engage
in union activities and if such activities among the employees gen-
erally ceased, he would suffer no decrease in earnings and would be
returned to his former post. Duncan did not resign from the Union,-,,
and the respondent neither increased his wages nor returned him to
the oil haul.
Stanton contended that Duncan was transferred to the gilsonite
haul because of his previous careless driving, resulting in damage
to two trucks. Duncan admitted that on two separate occasions,
while driving trucks on the oil haul, the rear ends of the trucks were
"pulled out," necessitating expensive repairs. He maintained, how-
ever, that the trucks were defective and that he was blameless. Dun-
J. J. STANTON 1111
can testified that he "pulled the rear end out" of the truck last driven
h6cause two teeth were missing from the ring gear. He did not
give any explanation for the damage done to the other truck except
that he testified that it was not his fault. Stanton testified that he did
not examine the truck which Duncan last drove on the oil haul, either
before Duncan set out on his trip or after he returned, but that he
nevertheless considered that it was Duncan's negligent driving that
had caused the damage.
Lichtenhahn, one of the respondent's former truck drivers, testified
that he had been driving trucks off and on for more than 20 years;
that a few days before Duncan last drove on the oil haul he, Lichten-
hahn, drove that truck and noticed a little "bump" in it while driving,
which, he said, was caused by missing teeth in either the ring gear
or reduction gear; and that the truck had not been overhauled be-
tween the time he last drove it and the time Duncan first began to
drive it. In the face of the mutually corroborative factual testimony
of Lichtenhahn and Duncan and in view of Stanton's admission that
his opinion of Duncan's negligence was not based on an examination
of the truck, we find that Stanton did not honestly believe that Duncan
had in fact been negligent. Upon these facts, we find that Duncan's
transfer to the gilsonite haul was not caused by Stanton's belief that
Duncan was responsible for the damage to the truck.
It is evident that the respondent's real purpose in transferring Dun-
can, revealed in Stanton's conversation with him at the time of the
transfer, was to discourage his union activity and that of his fellow
workers. The fact that Stanton did not perform his promise, made
at the time of the transfer, to raise Duncan's wages and to return
him to his former assignment indicates unmistakably that Stanton
adhered to the condition he had imposed on the promise, namely,
that union activity cease and that Duncan withdraw from the Union.
We find that the respondent transferred Duncan from the oil
haul to the gilsonite haul on March 18, 1940, and thereafter failed
to return him to the oil haul because of his membership in and activities
on behalf of the Union, thereby discouraging membership in the
Union and interfering with, restraining, and coercing his 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 de-
scribed in Section I above, have a close, intimate, and substantial rela-
tion 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.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order him to cease and desist therefrom and to
take certain affirmative action which we find necessary to effectuate
the policies of the Act. Since the respondent sold his business on
May 20, 1940, and since the bons fides of the sale is not in issue, the
respondent is not now in a position to reemploy the persons found
to have been discriminatorily discharged. Hence, we shall not order -
their reinstatement. However, we shall order the respondent to
make them whole for any loss of pay each of them may have suffered
by reason of the discrimination against him by payment to each
of them; of a sum equal to the amount he would normally have earned
from the date of the discrimination against him to May 20, 1940,
less his net earnings 2 during said period.
We have also found that the respondent has discriminated against
H. K. Wilson, Vern McLean, and J. D. Garrett with regard to their
hire and tenure of employment, and we shall, therefore, order that
the respondent make whole each of these employees for any loss of
pay he may have suffered from the date of his lay-off to the date of
his reemployment by payment to each of them of a sum equal to
the amount which he would normally have earned, less his net earnings
during said period.
We have also found that the respondent has discriminated against,
Jim Duncan concerning the terms and conditions of his employment.
We shall, therefore, order that the respondent make whole the said
Jim Duncan for any loss of pay he may have suffered from March
18, 1940, the date of his transfer from the oil haul to the gilsonite
haul, to May 20, 1940, the date when the respondent sold his business,
and for his increased living expenses.'
We shall also order that in the event that the respondent has re-
entered, or shall in the future reenter, the transportation business,
he shall, before hiring any other persons, offer George E. Kothe,
C. M. Lichtenhahn, and J. H. Crouse reinstatement to their former
or substantially equivalent positions without prejudice to their-
S 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 else-
where than for the respondent, which would not have been incurred but for the unlawful
discrimination in his hire or tenure of employment and the consequent necessity of his
seeking employment elsewhere . See Matter of Crossett Lumber Company and United
Brotherhood of Carpenters and Joiners of America, 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 . Republic
Steel Corporation v. National Labor Relations Board , 311 U. S. 7.
8 Matter of Great Western Mushroom Company and United Cannery, Agricultural, Pack-
ing and Allied ' Workers of America, United Mushroom Workers Local No. 300 , affiliated
with the Congress of Industrial Organizations , 27 N. L. R. B. 352.
J. J. STANTON 1113
seniority and other rights and privileges and restore Jim Duncan
to the oil haul or to an equivalent position.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following: - ,
CoNcLusioNs OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Stablemen
and Helpers of America, Local No. 13, affiliated with the American
Federation of Labor, 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 George E. Kothe, C. M. Lichtenhahn, J. H. Crouse, H. K.
Wilson, Vern McLean, and J. D. Garrett, thereby discouraging mem-
bership in a labor organization, the respondent has engaged in and
is engaging in unfair labor practices, within the meaning of Section
8 (3) of the Act.
3. By discriminating in regard to the terms and conditions of
employment of Jim Duncan, thereby discouraging membership in a
labor organization, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (3) of the
Act.
4. By interfering with, restraining, and coercing his employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the-meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
6. The respondent has not discriminated in regard to the hire
and tenure of employment of Cecil Hutchinson, H. A. Tucker, D.
S. Lippard, and Sam Lippard, within the meaning of Section 8 (3)
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, J. J. Stanton-, doing business as J. J. Stanton Trans-
portation Company, Craig, Colorado, and his officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Stablemen and. Helpers of America, Local
No. 13, affiliated with the American Federation of Labor, or any
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other labor organization of his employees by, discriminating in re-
gard to hire or tenure of employment or any term or condition of ;
employment;
(b) In any other manner interfering with, restraining, or coercing
his 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 con-
certed activities for the purpose of collective bargaining and other
mutual aid and 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) Make whole George E. Kothe, C. M. Lichtenhahn, and J. H.
Crouse for any loss of pay they may have suffered by reason of the
respondent's discrimination 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 such discrimination to May 20, 1940,
less his net earnings during said period;
(b) Make whole H. K. Wilson, Vern McLean, and J. D. Garrett for
any loss of pay each of them may have suffered by reason of-the dis-
crimination against him by payment to each of them of a sum of
money equal to,that which each of them would normally have earned
as wages from the date of such discrimination to the date of his
subsequent reinstatement, less his net earnings during said period;
(c) Make whole Jim Duncan for any loss of pay he may have
suffered and any expenses he may have incurred by reason of his
discriminatory transfer, by payment to him of a sum of money equal
to the difference between what he, would have earned as wages from
March 18, 1940, the date of the discrimination, to May 20, 1940, and
what he did earn during such period, plus the amount of any ex-
penses incurred during said period by reason of the discrimination;
(d) Offer to George E. Kothe, C. M. Lichtenhahn, and J. H.
Crouse reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority and other rights and privi-
leges and restore Jim Duncan to the oil haul or to a substantially
equivalent position at such time as the respondent shall reenter the
transportation business, such offers to be made prior to the hiring
of any other persons;
(e) Post in conspicuous places throughout his place of business, and
maintain for a period of not less than sixty (60) consecutive days
from the date of posting, notices to his employees stating (1) that the
respondent will not engage in the conduct from which he is ordered
to cease and desist in paragraphs 1 (a) and (b) of this Order; and
(2) that the respondent will take the affirmative action set forth in
paragraphs 2 (a), (b), (c), and (d) of this Order; and (3) that the
J. J. STANTON 1115
respondent's employees are free to become or remain members of
International Brotherhood of Teamsters, Chauffeurs, Stablemen and
Helpers of America, Local Union No. 13, and that the respondent
will not discriminate against any employee because of membership
or activity in that or any other labor organization; such posting to
be complied with at such time as the respondent shall reenter the
transportation business;
(f) Notify the Regional Director for the Twenty-second Region,
in writing, within 10 days from the date of this Order, what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent has discriminated
against Cecil Hutchinson, H. A. Tucker, D. S. Lippard, and Sam
Lippard.