Protective Motor Service Co.

National Labor Relations Board - Board Decisions

Apr 29, 1942

40 N.L.R.B. 967 (N.L.R.B. 1942)

In the Matter of PROTECTIVE MOTOR SERVICE COMPANY, A CORPORATION
and TWENTY-FIVE EMPLOYEES
Case No. C-25-Decided April 29;1942
Jurisdiction : armored car transportation industry.
Unfair Labor Practices
interference, Restzaint, and Coercion: anti-union statements by supervisory
employees; surveillance of union meetings; interrogation of employees with
regard to union meetings.
Discroninatzon: discharge of twenty employees for union membership or activity.
Remedial Orders : reinstatement of nineteen employees with back pay; back
pay of deceased employee, from date of discriminatory discharge to date of
his death, to be paid to his personal representatives; period from date on
which original Decision and Order was set aside to date of issuance of
subsequent Proposed Order excluded in computing back.pay.
Mr. Gerhard P. Van Arkel, Mr. Stanley Root, Mr. Samuel Zack,
.and Mr. Jerome I. Macht, for the Board.
Mr. Albert L. Moise, of Philadelphia, Pa., and Ballard, Spahr,
Andrews c6 Ingersoll, by Cllr. Warwick Potter Scott and Mr. John V.
Lovitt, of Philadelphia, Pa., for the respondent.
Felix and Felix, by Mr. David H. H. Felix, of Philadelphia, Pa.,
for the employees.
Mr. Louis Newman, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by Thomas J. Wohlan, the National Labor
Relations Board, herein called the Board, by the Regional Director for.
the Fourth Region (Philadelphia, Pennsylvania), issued its complaint
dated December 26, 1935, against Protective Motor Service Company,
Philadelphia, Pennsylvania, 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 Act,
49 Stat. 449, herein called the Act.
40 N. L. R. B., No. 173.
967
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 12, 1940,\ the Board issued a Decision and Order dis-
missing the complaint on the ground that the facts appearing in the
record then before the Board were "not sufficiently developed to
afford a basis for determining whether or not the operations of the
respondent affect commerce, within the meaning of the Act." 2
Thereafter, on June 2, 1941, upon petition of 16 of the employees
named in the complaint herein, the United States Circuit Court of
Appeals for the Third Circuit entered a decree setting aside the
Board's order of March 12, 1940, and remanding the case "with direc-
tions to reinstate the complaint, to allow the petitioners a reasonable
opportunity to present the evidence referred to in their petitions, and
to determine the issue of interstate commerce, and if it be found
that the operations of Protective Motor Service Company do affect
domtherce within the purview of the act, to determine whether or not
that company has engaged in unfair labor practices and to issue an
appropriate order in respect thereto." 3 Pursuant to the decree, the
Board on June 9, 1941, entered an order reinstating the complaint
herein, reopening the record for the purposes noted in the decree, and
directing that a further and supplemental hearing be held.
Thereafter, pursuant to notice duly served on the parties, a hearing
was held at Philadelphia, Pennsylvania, on June 23, 24, and 25, 1941,
before Gustaf B. Erickson, the Trial Examiner duly designated by
the Chief Trial Examiner. The Board, the respondent, Thomas J.
Wohlan and 16 other employees named in the complaint were repre-
sented by counsel and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the remanded issue was afforded all parties. A
motion made at the opening' of the bearing by counsel for Wohlan
and the other employees to limit the hearing to evidence as to
whether the respondent's operations constituted commerce was
granted by the Trial Examiner over the respondent's objection.' A
motion by counsel for the Board at the close of the hearing to con-
form the complaint to the evidence as to dates, names, and places
was granted by the Trial Examiner without objection. Rulings on
other motions and on the admissibility of evidence were also made by
the Trial Examiner during the course of the hearing. The Board
A Decision was originally issued by the Board herein on \pril 28 , 1936 1 N L R B
'639 This Decision was'set aside by the Board on July 18, 1938 . 8 N. L. R B. 309
2Matter of -Protective Motor Service Company, a corporation and Twenty -Five Em-
ployees, 21 N L. R B 552. This decision summarized the pleadings and included an
extended statement of the protracted proceedings which intervened between the issuance
of the complaint and the issuance of the Board's Decision and Order. There is no
necessity for repeating that statement of the case
3 The opinion of the Circuit Court of Appeals , handed down on May 19, 1941, is
reported sub nom Jacobsen v N. L. P. B., 120 F. ( 2d) 96 (C C A. 3).
4 The respondent thereafter made no substantial effort - to introduce evidence bearing
on any issue other than commerce.
PROTECTIVE MOTOR SERVICE COMPANY 969
has reviewed all the i ulings of the Trial Examiner and finds that no
prejudicial error was committed. The rulings are hereby affirmed.
Following the hearing, the Board on June 30, 1941, entered an
order directing that no Intermediate Report be issued by the Trial
Examiner in the further hearing; that, pursuant to Article II, Sec-
tion 37 (c), of National Labor Relations Board Rules and Regula-
tions-Series 2, as amended, Proposed Findings of Fact, Proposed
Conclusions of Law, and Proposed Order be issued ; and that the
parties have the right thereafter to request oral argument before
the Board and to file exceptions and briefs with the Board. On
February 6, 1942, the Board issued its Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order, copies of which
were duly served' on the parties. Pursuant to Article II, Section 37,
of said Rules and Regulations, as further amended on September 6,
1941, the parties were given the right to request oral argument
within 20 days,, and to file exceptions and briefs within 30 days, from
the date of issuance of the Proposed Findings of Fact, Proposed
Conclusions of Law , and Proposed Order.
On March 16, 1942, pursuant to an extension of time granted by
the Board , the respondent filed its exceptions to the Proposed Find-
ings of Fact, Proposed Conclusions of Law, and Proposed Order, and
a brief in support thereof. Thereafter, pursuant to notice duly
served on the parties, a hearing wa's held before the Board in Wash-
ington, D. C., on April 16, 1942, for the purpose of oral argument.
The respondent and certain of the employees named in the complaint
were represented by, counsel and participated in the hearing. On
April 18, 1942, subsequent to the hearing, the respondent filed a
§upplemental brief in support of its exceptions.
The Board has considered the respondent's exceptions and briefs,
and hereby finds the exceptions to be without merit insofar as they
are inconsistent with the findings of fact, conclusions of law, and
order set forth below.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Protective Motor Service Company is a Pennsylvania corporation
having its principal office and place of business in Philadelphia,
Pennsylvania . It is engaged in the business of transporting money,
securities , and other valuables in armored cars. Approximately 48
trucks, each manned when in use by a driver and at least 1 guard,
are owned and operated by the respondent. The valuables trans-
ported in these trucks include United States bonds and coinage.
970 DECISIONS OF NATIONAL.LABOR RELATIONS BOARD
The respondent's business has a capitalization of $25,000. Approxi-
mately 150 persons are employed by the respondent, and its annual
pay roll, which constitutes 77 per cent of its total expenses, is in
excess of $150,000. The respondent carries insurance on its operations
in the total amount of $5,000,000.
A substantial part of the record made at the further hearing in
June 1941 consists of evidence as to the respondent's business opera-
tions during the week of October 21-26, 1935. It is admitted that
operations during that week were, on the whole, typical of the re-
spondent's business throughout that calendar year. During that
week, the respondent daily used in, its business an average of 29 or 30
trucks or armored cars. One of these trucks was permanently sta-
tioned in Atlantic City, New Jersey. Of the remaining trucks, one
operated out of Glenalden, Pennsylvania, and the others out of
Philadelphia, Pennsylvania. The Glenalden truck made a daily run
to Wilmington, Delaware, and back. Three of the trucks operating
out of Philadelphia also made daily out-of-State runs, one to Atlantic
City, New Jersey, another to Trenton, New Jersey, and the third
to Camden, Gloucester, and other points in New Jersey. Three or
four times a month the Trenton run required the use of an extra truck-
We find that the respondent's trucks made not less than 4 daily or
24 weekly out-of-State trips during 1935, or a total of 1,248 such
trips during that year.
On Wednesday and Thursday, October 23 and 24, 1935, the respond-
ent made a pay-roll delivery for a dredge company from Philadelphia,
Pennsylvania, to Camden, New Jersey. A similar pay-roll delivery
for the same company was made regularly by the respondent at least
twice weekly during 1935. During the month of October 1935, 12
such pay-roll deliveries for that company were made by the respond-
ent. This means, and we find that the respondent made, a minimum
of 104 such out-of-State pay-roll deliveries during 1935. Another
pay-roll delivery for a leather company was made by the respondent
from Philadelphia to Camden on Friday, October 25, 1935, and a
similar pay-roll delivery for the same customer was made by the
respondent weekly during 1935. Including these 52 pay-roll de-
liveries, the respondent had a total of 1,404 regularly scheduled daily
or weekly out-of-State trips during the year 1935.
In addition, the respondent made more than, 100 deliveries between
Philadelphia, Pennsylvania, and New York City, requiring more than
50 separate trips between those 2 cities during 1935. On some of
these trips between Philadelphia and New York the respondent used
more than one, truck or armored car. Other special or non-regularly
scheduled deliveries or trips in 1935 between Philadelphia and cities.
PROTECTIVE MOTOR SERVICE COMPANY 971
in States other than Pennsylvania included four trips to and from
Washington, D. C.; three trips to and from Trenton, New Jersey ;
four trips to and from Atlantic City, New Jersey; two trips to and
from Baltimore, Maryland; and two trips to and from Wilmington,
Delaware.
The respondent contends that, with, unimportant exceptions, the
trucks used on the regularly scheduled c]aily and weekly trips to
points in New Jersey and Delaware crossed the Pennsylvania State
line and returned into Pennsylvania empty, performing the services
for which it was paid entirely within the State to which they went.
It is clear, however, that there was at least some interstate transpor-
ation of money and other valuables by these trucks; for example,
two or three regular pay-roll deliveries in New Jersey admittedly
involved the carriage of funds across the State line from Philadelphia,
and the daily truck to and from Wilmington, Delaware, was met every
evening at Darby, Pennsylvania, by a truck from Philadelphia which
took from the Wilmington truck whatever funds or other valuables it
had for delivery in Philadelphia. It also appears from evidence
offered by the respondent that at least part of the collections regularly
made by it from certain stores in New Jersey was brought to Phila-
delphia for deposit. In addition, we credit the testimony given by
several of the men who in 1935 were employed as drivers or guards
on the respondent's trucks that some of the money and other valu-
ables picked up by them on their regular trips to points outside
Pennsylvania was brought to Philadelphia.-
The record does not show the quantity or value of the goods carried
either intrastate or interstate by the trucks on the respondent's
regularly scheduled daily and weekly out-of-State trips in 1935.
There is, however, evidence which tends to show, and we find, that
the goods carried on these regularly scheduled trips were substantial
both in value and in volume. For example, it appears that the re-
spondent during 1935 made 2,610 collections in New Jersey for a
petroleum company, that it made 246 collections in New Jersey for.
another petroleum company from August 10 to December 31, 1935,
and that 2 of the respondent's chain store customers had 155 or 165
units in New Jersey which were serviced by the respondent. On the
special or non-regularly scheduled trips from Philadelphia, Pennsyl-
vania, to New York City and other points outside the State of
Pennsylvania, the respondent admits that its trucks carried securities
and other valuables worth at least $80,000,000. The record shows
that this figure is at best only an approximation and that, in any
event, it includes only the shipments of which the respondent knew
the value. ^ Since the value of the goods carried by the respondent
was not infrequently unknown to it, the figure $80,000,000 necessarily
understates the value of the respondent's special interstate shipments.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent's gross income in 1935 was $253,810.67. Tabula-
tions prepared by the respondent show that it received a grosg revenue
of at least $8,752.61 from admittedly interstate business during 1935.
This figure, too, is far from conclusively established by the evidence,
and its error lies clearly on the side of underestimation. The re-
spondent also prepared a tabulation showing $18,152.45 in fees re-
ceived by it in 1935 for servicing New Jersey stores or units of 52
different customers. As our findings above indicate, at least some of
these fees were paid to the respondent for interstate transportation
of goods, although it is impossible on'the present record to estimate
how much was paid for such transportation and how much for
services performed in New Jersey by trucks of the respondent oper-
ating out of Philadelphia. We find, however, that the respondent
in 1935 received substantially more than $8,700 for interstate services
performed by it, and that its receipts for such services constituted
more than 31/,per cent of its gross income.
It further appears -that the respondent's salesmen solicited business
in Camden, New Jersey, as well as in Philadelphia; that the respond-
ent paid for an office or desk space or similar facilities in Atlantic
City, Camden, and Trenton, New Jersey, as well as in Philadelphia,
Bethlehem, and Chester. Pennsylvania; and that plants or, units of
at least 24 or 25 large business and industrial organizations were
serviced by the respondent.
We find that the respondent is engaged in commerce, within
the meaning of the Act. Since the respondent's drivers and
guards are admittedly shifted about constantly, each of them is
actually or potentially employed in the interstate transportation
of goods.,'
)
6 The respondent has made some point of the fact that an application filed by it with
the Interstate Commerce Commission in 1936 for a certificate authorizing the continuance
of its interstate operations was denied on the ground, in part, that the respondent's
interstate services were too "meager" to justify the issuance of the requested certificate.
The contention is fully answered by the Couit in Jacobsen v N. L R. B, 120 F. (2d)
96, 98 (C C A 3)
The Board also found that the Protective Motor Service Company theretofore on
February 6, 1936 had filed an application with the Interstate Commerce Commission
for a certificate auhorizing the continuance of operations in interstate or foreign
commeice under the "Grandfather Clauses" of Sections 206 (a) and 209 (a) of the
Federal Motor Carrier Act of 1925 (49 U S. C A 306 (a) and 309 (a)) In this
application Protective Motor Service Company by its petition seemingly sought the
continuance of operations between Philadelphia on the one hand and New York City,
Baltimore, Maryland, and Washington, D C and points in Pennsylvania, New Jersey
and Delaware on the other. The Interstate Commerce Commission decided that
the "meager" interstate services engaged in by Protective Motor Service Company
did not meet the requirements of the grandfather clauses and denied the application.
Assuming that the test of interstate commerce required by the grandfather clauses
of the Motor Cariiei Act is the same as that of the National Labor Relations Act,
the weight of the decision of the Interstate Commerce Commission is greatly lessened
because as noted by the Commissioner " . applicant attempted at the hearing
to defeat its application in its entirety, in an effort to have the Commission establish
the fact that it is not engaged in interstate commerce"
PROTECTIVE MOTOR SERVICE COMPANY
II. THE ORGANIZATION INVOLVED
973
International Brotherhood of Teamsters, Chauffeurs, Stablemen and
Helpers of America,'Local No. 470, is a labor organization affiliated
with the American Federation of Labor. It admits to membership,
among others, drivers and guards employed by the respondent.
III. THE UNFAIR LABOR PRACTICES
The discriminatory discharrges °; interference, restraint
and coercion
The respondent's employees had never been organized prior to the
beginning of the dispute involved in the present proceeding, and
there is testimony that 'its employees for many years understood
generally that anyone attempting to organize the respondent's em-
ployees would be discharged. After the National Industrial Recovery
Act had been declared unconstitutional in May 1935,' the respondent
began reducing the wages and increasing the hours of work of its
employees. By the late summer of that year some of the respondent's
oldest drivers and guards were earning $31.50 for a work week
averaging 60 to 70 or more hours, as compared with substantially
higher wages for a work week which had previously averaged 4$
hours. At about that time, the respondent hired several men con-
siderably younger than its regular employees, at wages substantially
lower even than those then being paid by the respondent. The hir-
ing of these younger men resulted in a reduction in the hours of
work of some of the older employees, many of whom worked only
part time at best, and in a consequent decrease in their earnings.
"The complaint originally alleged that the respondent , dui nig the period from October
l0 to December 3, 103G, discharged 24 named persons employed by it as "drivers", and
that it thereafter refused to employ them, because they had joined and assisted the Inter-
national Brotheiliood of Teamsters , Chauffeurs . Stablemen and Helpers ,of America, local
No. 470, herein called the Union, and had engaged in conceited activities with other
employees of the iespondenL for the purpose of collective bargaining and other mutual
aid and protection At the hearing, the complaint was amended over the respondents
objection to add the phrase , "or in other capacities ", after the word "drivers". The
ruling pei uittmg the amendment is hereby affirmed As to 1 of the 24 employees thus
named , the complaint was dismissed upon motion of the respondent and without objection
by counsel for the Boaid Thereafter , the names of five additional employees were, upon
their own motion , struck from the complaint by the Board . The names of two of these
five employees were subsequently reinstated in the complaint by the Board, after a healing
had been held on a petition requesting such relief filed by three of them. All of these
rulings are hereby affirmed The case as it now stands involves alleged discriminatory
discharge of the following 20 employees. R W. Moore, Thomas J. Wohlan, Carl Jacobsen,
George Vavricka , Joseph J Ragone, James W. Connery , Anthony R Wheatley , Clarence
W Bailey , harry A Glading, Harry C Pfaff (also referred to as Charles Pfaff ), Edward
J Graham , Steadm a n S Kelly , Walter C . Gilbert , Benjamin Greitzer , Daniel J. McGeary,
James Cooper, Frank It Brown, Beauford L Stephenson Harry E Uditsky, and C W.
Har tnian
'A 1, 9 Schechter Poril(iy Con) v United States, 295 U S 405
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Some of the older employees who were not immediately affected by
the hiring of the younger men feared that they might later suffer
a similar reduction in hours and wages. In October 1935 the re-
spondent instituted a general wage cut of 10 per cent.
At about the same time, the president of the Union, Morrissey,
distributed circulars among the respondent's employees urging them
to attend a meeting on Sunday, October 27, 1935, for the purpose of
discussing union affiliation. The respondent's president, Marsh, saw
a copy of the circular almost as soon as it was distributed and, on
Friday, October 25, 1935, he asked several of the men about the
meeting. He apparently believed, however, that the men would
ignore the circulars, until he discovered on Saturday, October 26,
that at least some of them were going to the meeting.
Approximately 30 or 35 of the respondent's drivers and guards
appeared at the union meeting on the'afternoon of Sunday, October
27. It was apparently there decided that Moore, an old and trusted
employee of the respondent, would see Marsh and tell him what the
men had in mind. By the following day, Monday, October 28, the
respondent's secretary and general superintendent, William West,
had obtained a list of the names of many or all of the men who had
attended the meeting the day before. Marsh did 'not wait to be ap-
proached by Moore, but called him into the office, asked him how the
meeting was, and inquired as to the nature of his complaint. Moore
stated his personal grievances, and then referred to the pay cuts, the
long hours of work, and the effect of the hiring of younger men at
lower wage rates. Moore also told Marsh that the men were willing
to form an independent or company union instead of joining an
outside union, if that was what Marsh wanted them to do, and he
suggested that Marsh call a meeting of the employees for the pur-
pose of discussing their proposed organization. ' He further explained
to Marsh that "any demands that the men asked would be fair."
Marsh, in return, told Moore during their conversation that day that
"There is one thing that I will not have, and that is that man Mc-
Glone coming down here telling me how to run my business." 3
Marsh further stated that his business was no place for a union;
that any difficulties which existed could have been straightened out
without recourse to union organization, had the-men made a personal
appeal to him; and that he would have no general- meeting of the
employees as Moore proposed, but that he would wait in his office
Tuesday night, October 29, to see any of the men who wanted to tall-
' McGlone is an officer of another local of the International Brotherhood of Teamsters,
Chauffeurs, Stablemen and Helpers of America. Marsh apparently identified him, errone-
ously, with the Union in the present proceeding.
PROTECTIVE MOTOR SERVICE COMPANY 975
to him. Marsh knew that a second union meeting was to be held
that Tuesday night.
Thereafter, on Monday and Tuesday, October 28 and 29, Mai h
called to his office and personally interviewed, either individually or
in small groups, most or all of the men who had attended the union
meeting of October 27. He asked them whether they had attended
the meeting, and told them in substantially the same terms as he had
used with Moore of his opposition to union organization. among the
respondent's employees. Marsh, himself, explained at the hearing
that he called in and spoke to all these men on October 28 and 29,
1935, because be wanted to know what their grievances were and why
they had decided that they should organize in order to remedy their
grievances, because he wanted to discuss with them the advisability
of the course they were taking, and because he wanted to tell them
that he objected to their organizing without first discussing it with
him. On the morning of Tuesday, October 29, Marsh assembled in
the office all the_ employees then on the respond'ent's premises, 'of
whom there were some 50 or 60, and restated his position as to their
joining a union. In part he said: ' "The company is not big enough
to have a union. We will not tolerate a union in this company. Let
there be no more talk about unions." Later the same day Marsh,
West, and the respondent's chief mechanic, Caccia, warned several
of the men against engaging in union activity. Nevertheless, the
union meeting that night was attended by a number'of the respond-
ent's employees, although not by as many as had been at the first
meeting.
Marsh admitted at the hearing that he requested several employees
on October 29, 1935, to go to the meeting that night and get him
all the information they could, and that he was told by some of them
who attended that meeting. Indeed, at least some of the men who
attended the meeting that night apparently' gathered first at the
respondent's garage; and the chief mechanic, Caccia, told Marsh
which of the men were at the garage that evening, and Marsh sent
down to the garage to find out who was there. The morning of the
next day, October 30, Marsh summarily discharged Moore, Uditsky,
Jacobsen, Vavricka, and Connery. All but one of these five men
had been at the meeting the night before, and all of them without
exception were admittedly regarded by Marsh as leaders in the move-
ment to organize. At the hearing, Marsh described the discharge of
these five men as follows : "I told them that this thing could not con-
tinue. This was on Wednesday morning, when these men were dis-
charged. There is no use-I want to make it perfectly plain that T
told them that this condition of turmoil and meeting all around,
i
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD j
downstairs and upstairs, down in the garage, could not continue,
and I asked them to abandon this particular purpose for the time
being, and that we would discuss the matter, and I would ask them
to come up and see me on Tuesday night, and I waited for them there
for that purpose, and they chose to disregard my request, and eve
parted company right then and there." Admittedly, these five dis-
charged employees included some of the respondent's oldest and most
trusted men.
Three more employees were discharged on November 2, 1935, and
the other employees named in the complaint were discharged from
time to time thereafter during November and until December 3, 1935.
All of the employees who were thus discharged and who are involved
in the present proceeding had attended one or both of the union
meetings on October 27 and 29, 1935, and some of them had joined
the Union and had paid part or all of their initiation fees.9
9 The record reveals, and we find, the following facts as to the employees involved in
the present proceeding:
Name Union activity Occupation
Approximate
length of
service
Date of dis-
charge
R W. Moore ------------ Joined Union and attended Driver ------ 8 years ------ Oct 30,1935
first meeting
Harry E. Uditsky-------- Attended first union nieet- Driver and 6 years ------ Oct 30.1935
ing guard.
Carl Jacobson Joined Union and attended Guard ------ 6 years------ -Oct. 30,1935
both meetings
George Vavricka--------- Joined Union and attended Driver ------ 7 years ------ Oct. 30,1935
both meetings
James W. Connery------- Joined Union and attended Driver and 8 years------ Oct. 30,1935
both meetings guard.
Anthony R. Wheatley--_ Joined Union and attended Driver and 22 months-_-, Nov. 2,1935
second meeting guard
Harry A. Glading*_______ Joined Union and attended Guard and 8 years ------ Nov. 2,1935
both meetings clerk
Clarence W Bailey----- Joined Union and attended Driver and 234 years---- Nov 2, 1935
second meeting guard
Charles Pfaff* (Harry C. Joined Union and attended Guard ------ 4 years (In- Nov 4,1935
Pfaff) second meeting t e r in i t -
tent)
Thomas) Wohlan------- Attended first union meet- Guard_____ 7years ------ Nov. 7,1935
ing
Joseph J Ragone_________ Attended both union meet- Guard______ 7F vears____ Nov 12, 1935
Edward J Graham ------
ings
Attended first union meet- Guard ------- 2years ------ Nov. 16,1935
ing
Frank H Brown* -------- Joined Union and attended Driver______ 8 years ------ Nov 14 1935
both meetings
Steadman S Kelly*______ Joined Union and attended Driver ------ 7)t years---- Nov 18,1935
both meetings
Walter C Gilbert*_______ Attended both union meet- Driver ------ 5 years------ Nov 19,1935
C. W Hartman__________
ings
Attended first union meet- Driver ------ (Does not Nov. 22,1935
ing appear)
Daniel J. McGeary______ Joined Union and attended Driver ------ 3 years------ Nov. 22,1935
both meetings
Benjamin Greitzer*______ Attended both union meet- Driver______ 2 years ------ Nov 25,1935
ings
James Cooper*_________ I Joined Union and attended Driver______ 2 years ------ Dee 3,1935
second meeting
Beauford L.Stephanson*_ Attended both union meet- Guard______ 33h years---- Dee 3,1935
ings.
*Received or was offered a letter of recommendation from the respondent, stating that he had been di--
charged only because of a reduction in force.
PROTECTIVE MOTOR SERVICE CO'AIPANY 977
To Greitzer, who was one of the last men to be discharged, Marsh
said: "I am sorry,'Mr. Greitzer, I hate to let you go. I told you boys
about going up to that union meeting." Greitzer thereupon asked,
"Is that why I am getting out?" In response, Marsh nodded his.head
to indicate that it was.
Bailey, who was discharged on November 2, 1935, testified at the
hearing that, shortly after his discharge, he was told by West that
the latter would attempt to have him reinstated, but that the next day
West told him that it had been decided at Marsh's home the night be-
fore that none of the men who had, been to the union meetings would
be rehired. West added, according to Bailey, that : "I am sorry to say
it, but some more men are going." Bailey's testimony was denied by
West, but, in view of the other evidence as to West's attempts to dis-
courage union activity among the respondent's employees, we accept
Bailey's testimony and find that West made the statements attributed
to him. Further light on the respondent's purpose in discharging
these employees and on its attitude toward union activities is provided
by Marsh's testimony at the hearing that the respondent has had no
"trouble" since October 30, 1935, the date on which the first group
of employees was discharged. i
The respondent's position,-as-revealed by the record,; is that,'the.dis-
charges were made because the employees in question had been guilty
of "insubordination" and "breach of discipline," because it was neces-
sary to put an end to the "turmoil" and "uproar" caused by union agi-
tation, and because there were various complaints as to the capability
and work of some of the men. In his own testimony, ^ however, Marsh
revealed that, by "insubordination" and "breach of discipline," he
primarily meant union activities, the failure of the union adherents
to consult him and obtain his permission before engaging in their
union activities, and their participation in such activities without
informing him of what was happening.10 Marsh admitted that the
gravity of an employee's offense in participating in union activities
without confiding in him varied, in his opinion, directly with the
length of the employee's employment and the trust in which he was
held. As to the "turmoil" and "uproar," no showing was made that
the gatherings, of employees to which reference was thus made con-
stituted any abnormal departure from the customary conduct of em-
ployees while off duty, or that they interfered with the discharge by
employees of their duties. It was customary for groups of the re-
spondent's drivers and guards to congregate in the cellar or garage
between runs for talk and relaxation before going out again, and it
10 Marsh testified generally that the employees in question were discharged because of "the
attempted formation of this society or joining this society for the purpose of interfering
with our duties and the duties of the other men I consider that a breach of dis-
cipline "
455771-42-vol 40-62
978
i
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not appear-that their talking during the period of union activity
differed in any material respect except subject of discussion. Marsh
admitted that the groups in which,the employees congregated during
the period in question were never larger than eight men, and that the
men were at no time requested to be quieter. Indeed, Marsh plainly
indicated at the hearing that it was not the manner in which these
discussions were conducted but rather the subject discussed-viz.,
union organization-which occasioned the respondent's disapproval?1
However, some reference is made by the respondent to alleged vilifica-
iton of `• `loyal people" by union adherents, "loyal people" meaning
those employees who were not taking part in union activities. Marsh's
testimony as to this alleged vilification is almost completely lacking
in convincing detail, consisting largely of a recital of complaints by
Superintendent West, and by employee Weston who was called in and
questioned by Marsh. Furthermore, it appears that group meetings
on the respondent's premises of members of an association of the
respondent's employees subsequent to the discharges here in question
were held apparently without objection on the part of the respondent.
As to the alleged inefficiency and inability of some of the men, no
mention of these claimed deficiencies was made to the men at the time
they were discharged, and Marsh's own testimony at the hearing
indicates that inability and inefficiency were not the reasons for the
discharges.
There is some indication that Marsh had particular objection on
personal grounds to Moore and Kelly, because of alleged insolence or
other misbehavior on their part. The claim apparently rests on state-
ments made by them during conversations with Marsh on Monday,
11 Under cross examination by counsel for the Board, Marsh testified as follows :
Q Did you at any time go- down into the basement and object to the discussions going on
down there?
A No.
Q Did you give Mr. West any orders to go down there and stop the discussion?
A No, I did not
Q Did you tell them to stop that noise going on down there?
A. No I don't know that he complained about the noise I suppose he would tolerate
any noise there, but he did complain, and very seriously, about this continued agitation.
Q his only objection, then, was to the fact that the discussions were being held?
A Exactly.
Q You gave him no instiuctions to go down and stop those discussions?
A. No.
s s s s • s s
Q. Did Mr. West complain to you about the meetings held on the pavement?
A Not particularly; only in a general way. He said-I don't think he cared about them
talking on the pavement, or in the basement, or any other place. What he complained of
was the subject matter of their conversation.
Q What was the subject matter of their conversation?
A The subject matter of their conversation was this agitation to join or form these
societies or unions,-or whatever it was
Q In other words, he objected to their talking about the Union?
A In that particular way, yes, sir.
Q You have already testified that you did not object to the manner in which those
discussions were conducted?
A No.
PROTECTIVE MOTOR SERVICE COMPANY 979
October 28, 1935, the day immediately following the first union meet-
ing. As we have pointed out above, all the conversations on October
28 and 29 between Marsh and, various employees were solicited by
Marsh and were marked by his questioning of the employees as to
their grievances and their reasons .for engaging in union activities.
It was not unreasonable for Moore and Kelly to state, in response to
these inquiries, their reasons for believing that Marsh had not always,
in their opinion, been fair in his treatment of them. We believe it
significant that Marsh, although he allegedly took serious objection
to Moore's remarks on October 28, did not discharge Moore at the
time the remarks were made but waited until after Moore had yEs-
regarded Marsh's admonition against union activities by attending
the second union meeting on October 29; the manner in which Moore
was then ordered to turn in his credentials is clear indication of the
true reason for his discharge. Similarly with respect to Kelly, there is
no showing that he had ever, prior to October 28, 1935, offered any
objectionable advice or criticism, or that any untoward incident
occurred between that date and his discharge on November 18, 1935.
Briefly stated, the respondent's position is that participation by
its employees in union activities, particularly without consulting or
advising Marsh, constituted insubordination and disloyalty warrant-
ing discharge, and that attempts by union adherents to persuade other
employees to join the Union made them undesirable employees. The
events in question occurred shortly after the effective date of the Act,
but there was then no more reason than there is now for any such mis-
conception of the Act's purposes and provisions. The Act plainly
provides, as our decisions have since held, that union organization is
the exclusive concern of employees, that they may in any lawful man-
ner advance their right to organize and to engage in concerted activ-
ities, and that they are protected by the Act from any interference,
restraint, or coercion by their employer in the exercise of these rights.
We find that the respondent, by discharging and thereafter refusing
to employ R. W. Moore, Thomas J. Wohlan, Carl Jacobsen, George
Vavricka, Joseph J. Ragone, James W. Connery, Anthony R. Wheat-
ley, Clarence W. Bailey, Harry A. Glading, Harry C. Pfaff (also re-
ferred to as Charles Pfaff), Edward J. Graham, Steadman S. Kelly,
Walter C. Gilbert, Benjamin Greitzer, Daniel J. McGeary, James
Cooper, Frank H. Brown, Beauford L. Stephanson, Harry E. Uditsky,
and C. W. Hartman, discriminated in regard to their hire and tenure
of employment, and thereby discouraged membership in the Union 12
By this discrimination, by its surveillance of the union meetings, and
12 Hartman did not testify at the hearings , but the record shows that he was discharged
and that "the operative factors" which induced the discharge were the sane in his case
as in the others See Matter of The New York and Porto Rico Steamship Company and
Commerical Telegraphers' Union. Marine Division, A -F of L , 34 N L R B 1028
footnote 26
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the anti -union statements made by Marsh , West, and Caccia to
various employees , the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section
7 of the Act.
1V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that 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, ultimate, 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.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices , we shall order it to cease and desist therefrom and to
take affirmative action designed to effectuate the policies of the Act.
We have found that the respondent discriminated in regard to
the hire and tenure of employment of R. W. Moore, Thomas J.
Wohlan, Carl Jacobsen, George Vavricka , Joseph J. Ragone, James
W. Connery , Anthony R. Wheatley , Clarence W. Bailey, Harry A.
Glading, Harry C. Pfaff (also referred to as Charles Pfaff ), Edward
J. Graham, Steadman S. Kelly, Walter C. Gilbert, Benjamin Greitzer,
Daniel J . McGeary, James Cooper , Frank H. Brown, Beau ford L.
Stephanson , Harry E. Uditsky , and C. W. Hartman because of their
union membership or activity . To effectuate the policies of the Act.
we shall order the respondent to offer all of them except Beauford
L. Stephanson immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority
and other rights and privileges , dismissing if necessary any employees
hired since their discharge . We shall further order the respondent to
make all of them except Beauford L. Stephanson whole for any loss
of pay they have suffered because of the respondent 's discrimination
by paying to each of them a sum of money equal to the amount he
would normally have earned as wages from the date of the discrimina-
tion against him to the date of the offer of reinstatement , less his
net earnings during such period .- In view of the fact that our
13 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 the
unlawful discrimination and the consequent necessity of seeking employment elsewhere.
See' Matter of Crossett Lumber Ooinpauv and United Brotherhood of Carpcnters and
Joiner s of America, Lumber and Sawmill 117oi hers Union , Local m590, '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.
IV L R B, 311 U S 7
PROTECTIVE MOTOR SERVICE COMPANY 981
original Decision of April 28, 1936, was set aside on July 18, 1938, the
period from the latter date to February 6, 1942, the date of the
Proposed Order herein, will be excluded in computing the back pay
due these employees.
Since Beauford L. Stephanson died on June 2, 1936, no order or re-
instatement will be entered as to him. However, the respondent will
be directed to pay his personal representatives a sum of money, equal to
the amount he would normally have earned as wages from the date of
the respondent's discrimination against him to the date of his death,
less his net earnings during such period.14
Upon the basis of the above 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. 470, 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 R. W. Moore, Thomas J. Wohlan, Carl Jacobsen, George
Vavricka, Joseph J. Ragone, James W. Connery, Anthony R. Wheat-
ley, Clarence W. Bailey, Harry A. Glading, Harry C. Pfaff (also re-
ferred to as Charles Pfaff), Edward J. Graham, Steadman S. Kelly,
Walter C. Gilbert, Benjamin Greitzer, Daniel J. McGeary, James
Cooper, Frank H. Brown, Beauford L. Stephanson, Harry E. Udit-
sky, and C. W. Hartman, and thereby discouraging membership, in
International Brotherhood of Teamsters, Chauffeurs, Stablemen and
Helpers of America, Local No. 470, 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
respondent 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
14 See Matter of Rapid Roller Co , a coi poraton and Local 120, United Rubber Workers
of America, affiliated with the C 1 0 , 33 N L R B 557, footnote 55,
e82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent, Protective Motor Service Company, Philadelphia, Penn-
sylvania, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Teamsters;, Chauffeurs, Stablemen and Helpers of America,'Local
No. 470, or in any other labor organization of its employees, by dis-
charging any of its employees or in any other manner discriminating
in regard to their hire and tenure, of employment or any term or con-
dition 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 R. W. Moore, Thomas J. Wohlan, Carl Jacobsen,
George Vavricka, Joseph J. Ragone, James W. Connery, Anthony R.
Wheatley, Clarence W. Bailey, Harry A. Glading, Harry C. Pfaff
(also referred to as Charles Pfaff), Edward J. Graham, Steadman S.
Kelly, Walter C. Gilbert, Benjamin Greitzer, Daniel J. McGeary,
James Cooper, Frank H. Brown, Harry E. Uditsky, and C. W. Hart-
man immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other
rights and privileges, dismissing if necessary any employees hired
since their discharge;
(b) Make whole R. W. Moore, Thomas J. Woblan, Carl Jacobsen,
George, Vavricka, Joseph J. Ragone; JamesW. Connery, Anthony` R.
Wheatley, Clarence W. Bailey, Harry A. Glading, Harry C. Pfaff
(also referred to as Charles Pfaff), Edward J. Graham, Steadman S..
Kelly, Walter C. Gilbert, Benjamin Greitzer, Daniel J. McGeary,
James Cooper, Frank H. Brown, Harry E. Uditsky, and C. W. Hart-
man for any loss of pay they have suffered because of the respond-
ent's discrimination by paying to each of them a sum of money equal
to the amount he would normally have earned as wages during the
period from the date of his discharge to July 18, 1938, and during the
period from February 6, 1942, to the date of the respondent's offer of
reinstatement, less his net earnings during such periods;
(c) Pay to the personal representatives of Beauford L. Stephanson
a sum of money equal to the amount he would normally have earned
as wages during the period from the date of his discharge, December
3, 1935, to the date of his death, June 2, 1936, less his net earnings
during such period;
PROTECTIVE MOTOR SERVICE COMPANY 983
(d) Post immediately in conspicuous places throughout its premises
in Philadelphia, Pennsylvania, and elsewhere, and maintain for a
period of at least sixty (60) consecutive days from the date of post-
ing, notices to its employees 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 the respondent will'
take the affirmative action set forth in paragraphs 2 (a), (b), and (c)
of this Order; and (3) that the respondent's employees are free to
become or remain members of International Brotherhood of Teamsters,
Chauffeurs, Stablemen and Helpers of America, Local No. 470, and
that the respondent will not discriminate against any employee because
of membership or activity in that organization;
(e) Notify the Regional Director for the Fourth Region in writing
within ten (10) days from the date of this Order what steps the re-
spondent has taken, to comply therewith.