Rocks Express Co.

National Labor Relations Board - Board Decisions

Jul 24, 1937

3 N.L.R.B. 110 (N.L.R.B. 1937)

In the Matter of HARRY G. BECK, TRADING AS ROCKS EXPRESS COM-
PANY, and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CIIAuF-
FEURS, STABLEMEN, AND HELPERS OF AMERICA, LOCAL UNION No. 355
Case No. C-161.Decided. July °L4., 1937
Motor Track Transportation Industry In-terferenee, Restraint or Coereton:
expressed opposition to labor organization ; discrediting union and union lead-
ers-Dascrinnnatton: discharge-Reiyastatetaent Ordered-Back Pay: awarded.
Mr. Jacob Blum for the Board.
Mr. Harry L.•Katz and Mr. Abraham Levin, of Baltimore , Md., for
the respondent.
Mary Lemon Schleifer, of counsel to the Board.
DECISION
STATEMENT OF CASE
On November 23, 1936, International Brotherhood of Teamsters,
Chauffeurs, Stablemen, and Helpers of America, Local Union No.
355, herein called Local 355, filed a charge with the Regional Director
for the Fifth Region (Baltimore, Maryland), alleging that Harry G.
Beck, Baltimore, Maryland, herein called the respondent, trading
as Rocks Express Company, had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
On December 10, 1936, the Regional Director duly issued and served
upon the parties a complaint and notice of hearing. The complaint
alleged that the respondent had engaged in unfair labor practices
affecting commerce, within the meaning of Section 8, subdivisions
(1) and (3), and Section 2, subdivisions (6) and (7) of the Act by
discharging and refusing to reinstate John G. Hasenei, George T.
Swayne, Frank Hogarty, Clarence Bibbins, and Herbert Robinson
for the reason that they joined and assisted Local 355.
Prior to the hearing, the respondent filed an answer in which he
denied several of the allegations of the complaint concerning the
character of his business, and also denied that the named employees
were discharged for union activities but alleged they had been dis-
charged for incompetency and. for conduct detrimental to the busi-
ness interests of the respondent.
110
DECISIONS AND ORDERS 111
Pursuant to the notice, a hearing was held in Baltimore, Maryland,
on December 21, 1936, before Robert M. Gates, the Trial Examiner
duly designated by the National Labor Relations Board, herein called
the Board. The respondent was represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on
the issues was afforded all parties.
At the beginning of the hearing counsel for the respondent moved
that the complaint be dismissed on the ground that the Act is uncon-
stitutional. During the course of the hearing, and again at the close
of the hearing, counsel for the respondent moved for dismissal for
the same reason and for the additional reason that the evidence
adduced failed to sustain the allegations of the complaint. The Trial
Examiner denied all of these motions. During the course of the
hearing counsel for the respondent' requested the Trial Examiner to
issue a subpoena daces tecum for the production of certain books,
records, and correspondence of Local 355. The Trial Examiner re-
fused to issue the subpoena. The Trial Examiner granted the motion
of counsel for the Board to dismiss the complaint as to Herbert
Robinson. Many objections to the introduction of evidence were
made by counsel for the respondent and counsel for the Board. The
Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
On March 4, 1937, the Trial Examiner duly issued his Intermediate
Report which was served upon the parties. In the Intermediate Re-
port, the Trial Examiner found that the respondent had committed
the unfair labor practices as alleged in the complaint and recom-
mended that the men discharged be reinstated with back pay. No
exceptions have been filed to the Intermediate Report nor has the
respondent complied with the recommendations of the Trial Exam-
iner.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent's business consists of the transportation of com-
modities by motor trucks, generally as a contract carrier. The re-
spondent has, however, applied to the Interstate Commerce Commis-
sion for a certificate of public convenience as a common carrier.
Between five and ten per cent of the respondent's business involves
the transportation of commodities between Baltimore, Maryland, and
points in other States, including Wilmington, Delaware; Richmond,
112 NATIONAL LABOR RELATIONS BOARD
Virginia; Philadelphia, York, and Harrisburg, Pennsylvania; New
York, New York; the District of Columbia; and intermediate points.
The remainder of the respondent's business, with a few exceptions,
consists of the transportation of commodities between points wholly
within the city of Baltimore, Maryland. About fifty per cent of
the commodities so carried either originate outside the State of
Maryland and are picked up by the respondent upon their arrival at
rail, boat, or truck terminals in Baltimore, for delivery to other ter-
minals or to warehouses in that city, or originate in Baltimore and
are carried by the respondent to such terminals for further trans-
portation to points outside the State of Maryland.
Ninety per cent of the commodities transported by the respondent
are carried pursuant to a written contract with the Victor Lynn
Transportation Company, Baltimore, Maryland, the respondent being
but one of many trucking companies and individuals having con-
tracts for transportation with that concern. The bulk of the com-
modities carried by the respondent for the Victor Lynn Transporta-
tion Company are carried to or from the Baltimore terminal of that
concern, at Pier No. 4, Pratt Street. The respondent also transports
commodities for Stevens Brothers, Robinson & Jackson Company,
and L. Hollaway & Brothers, all of Baltimore, Maryland, pursuant
to agreements with these companies. In 1936 the respondent oper-
ated approximately 12 trucks or trailers and employed approximately
12 drivers and 6 or 7 helpers.
We find that the respondent in the operations above described is
engaged in traffic, transportation, and commerce among the several
States, and that the drivers and helpers employed by the respondent
are directly engaged in such traffic, transportation, and commerce.
II. THE UNION
Local 355 is a local union of the International Brotherhood of
Teamsters, Chauffeurs, Stablemen, and Helpers of America, affiliated
with the American Federation of Labor. Local 355 is a labor organ-
ization whose membership includes other employees in the State of
Maryland in addition to some of the employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
John G. Hasenei had been constantly employed as a driver by the
respondent for two and a half years, except for a period of three
months in the summer of 1935. In addition to making deliveries in
Baltimore, Maryland, he frequently drove a truck to Wilmington,
Delaware; Philadelphia, Pennsylvania; New York, New York; and
Richmond, Virginia. At the time of his discharge he was earning
$18 a week for daytime work and receiving additional compensation
DECISIONS AND ORDERS 113
when he made trips at night. He joined Local 355 on November 4,
1936. He was discharged on November 21, 1936.
George T. Swayne began working for the respondent as a driver
in 1932 and had been regularly employed from June 1936 to the time
of his discharge . His route was between Baltimore, Maryland, and
Wilmington , Delaware, and return. At the time of his discharge
Swayne was earning $20 a week. He joined Local 355 on November
7, 1936, and was discharged on November 21, 1936.
Frank Hogarty at the time of his discharge had been employed by
the respondent for about six weeks. He drove a truck used for city
delivery. In addition, he helped load the truck for Wilmington,
Delaware every night. He was earning $18 a week at the time of his
discharge . He joined Local 355 on November 4, 1935, and was dis-
charged on November 19, 1936.
Clarence Bibbins had worked more or less regularly for the re-
spondent as a helper for approximately six years . His duties con-
sisted of loading trucks and accompanying drivers on their trips.
He frequently made trips to 'the States of Delaware , Pennsylvania,
and New York, and to the District of Columbia. He was paid daily,
receiving $2.00 or $2.25 for each day he worked. He joined Local 355
on November 6, 1936, and was refused employment on November 21,
1936.
Ten or eleven of the drivers and some of the helpers employed by
the respondent had joined Local 355 about November 4 , 1936. Ap-
parently there had been no organization of the respondent's em-
ployees before that time. The record shows that Beck was aware of
the union activities of his employees . Because of ill health, Beck is
unable to be present at his place of business at all times . When he is
absent his father-in -law, Rock Spine , and his brother-in-law, Stephen
Spine, supervise the business . ' When not ' acting in a supervisory
capacity , Stephen Spine acts as a truck driver, and as a driver is
eligible for membership in Local 355. Beck admits that Stephen
Spine knew which of the employees had joined Local 355. On No-
vember 18, 1936 , an employee working for another transfer company'
in Baltimore told Stephen Spine that unless he hurried up and joined
the union , "we are going to take you off the truck". Stephen re-
ported this to Beck who became very angry, called in the drivers
and helpers who were in the office, and told them that he would pro-
tect them against any "strong -arm methods ." There is testimony in
the record that, in addition , Beck stated he approved of unions but
that he did not approve of Local 355 on account of its leaders, one of
whom he said had previously absconded with union funds ; asked
whether his men wanted to join this union; and stated that he would
start a union of his own and make the absconding official pay him.
114 NATIONAL LABOR RELATIONS BOARD
Beck denies that he discharged Hasenei, Swayne, Hogarty, or
Bibbins because of union activities and enumerates various infrac-
tions of company rules and acts of negligence which he assigns as
the reasons for their discharge. Beck testified that Hasenei failed
to follow a rule of the company which required all drivers delayed
more than 15 minutes to call and report the delay, and that because
Hasenei failed to call and report delays, a carton of cigarettes worth
$54 had been lost on one occasion, and on another occasion Beck had
been deprived of the use of a truck for half a day. Beck also claimed
that Hasenei had damaged a truck by careless driving; that he was
constantly late reporting for work ; and -that Hesenei could not get
along with his brother-in-law and father-in-law, who had threatened
to leave unless Beck discharged Hasenei.
As to Swayne, Beck testified he had received numerous complaints
from the representative of the Victor Lynn Transportation Com-
pany in Wilmington, Delaware, that Swayne was refusing to carry
merchandise that he should have carried; that Swayne was a care-
less driver, and had damaged the transmission on a truck and had
several accidents resulting in property damage; that on one occa-
sion several hams were missing from his truck; and that because
he had failed to have his driver's license renewed, Beck had to hire
an extra driver for one trip.
Beck testified that Hogarty was not a skillful truck driver, and
that he was often late reporting for work. As to Bibbins, Beck
testified that since he was paid off every night he was not a regular
employee but an extra; that in failing to use Bibbins during the
period in which Bibbins claimed he was refused work, he did not
discharge him; and that Bibbins was constantly late reporting for
work in the mornings.
The evidence on the alleged acts of commission and omission of
the discharged employees is flatly contradictory. It is impossible
for us on the testimony in the record to resolve all of these contra-
dictions and to determine whether or not these employees were at
fault in all instances. As to the respondent's complaints against
Hasenei, Hasenei testified that on the day when the carton of ciga-
rettes was lost, Beck had told Hasenei's helper to call but the 'helper
had neither called in nor told Hasenei that Beck had requested him
to call; that on the day when Beck claims he was deprived of the
use of his truck because Hasenei had gotten in too late the night be-
fore for the truck to be unloaded, he had not taken any longer to
secure the load than was necessary or customary, that he arrived at
the consignee's place of business 20 minutes before the time it closed
but that the consignee's employees refused to unload the truck.
Hasenei also pointed out that if a driver had to call in every time
DECISIONS AND ORDERS 115
there was a delay of 15 minutes, he would be delayed 30 minutes.
Beck himself admitted that a delay of an hour was "nothing."
Swayne testified that the only trouble he ever had with the Victor
Lynn representative at Wilmington, Delaware was that the repre-
sentative constantly requested him to take packages to Rising Sun,
Maryland, a point 12 miles off Swayne's route and on the route of
another driver, and that Beck had instructed him not to go to Rising
Sun. Beck denied that the complaints pertained to deliveries for
Rising Sun, but stated that they concerned deliveries which Swayne
had failed to make at Chesapeake City, Maryland, on his route.
Beck admits that he told the Victor Lynn representative that the
packages had been returned marked "No one to receive", "No money",
"Refused", "Did not order", or similar markings. Beck also admits
he did not investigate to determine whether these markings were
correct statements of the facts or whether the packages had been
returned while a relief driver was driving the route. The evidence
shows that the truck on which the transmission was damaged was a
second-hand truck, that Swayne reported the transmission was in
bad condition the day before the damage, but that Beck allowed
Swayne to drive it the next day without having it inspected. Swayne
testified that Beck never blamed him for the damage, but that Beck's
brother-in-law "said a whole lot." Apparently, Swayne is charged
with two accidents involving property damage. Beck admits that
he did not learn of one of the accidents until after Swayne's dis-
missal. Swayne denies that he was involved in this accident but
admits that at another time he backed into a door and knocked "a
little bark off of it".
Beck's charges against Hogarty are too intangible to refute.
Hogaty testified he was never reprimanded, had had no accidents,
and had never been arrested for any traffic violations. It is signifi-
cant that on discharging Hogarty, Beck in effect told him that the
reason for the discharge was that he was going to take the truck out
of operation because business was slack. The evidence shows another
driver was put on the truck the next working day.
Bibbins testified that for about half a week prior to November
21, 1936, he appeared every morning for work, that Beck's father-in-
law would not let him work, but that Beck kept telling him to come
back the next day. He also testified that on the night of November
20, he came back to talk to Beck, pursuant to Beck's request, and
that Beck stated he understood Bibbins had been complaining about
his wages, which fact Bibbins denied, that Beck's brother-in-law
came in and Beck discontinued the conversation but that when he re-
ported for work the following morning, November 21, he was told
by Beck's father-in-law that he had been discharged. At the hearing
116 NATIONAL LABOR RELATIONS BOARD
Beck relied on the defense that Bibbins could not be counted on since
he was always late. But Beck admits that Bibbins had, been. late
ever since he had worked for him, that when he was present he put
him to work even when he was late and that he even sent a truck
,for him occasionally when he failed to show up for work.
It is undoubtedly true that these discharged employees were guilty
of some of the offenses charged against them. However, as was said
in Matter of Houston Cartage Company, Inc. and Local Union No.
367, International Brotherhood of Teamsters, Chauffeurs, Stablemen,
and Helpers of America, and L. S. Brooks,'
Experience has shown this Board that there is no field of em-
ployment where employers can so easily find means to cloak their
real motives for discharging employees as in the employment of
bus or truck drivers. In practically every case which has come
before us involving such employees, it has been charged and
proven that the discharged employees have exceeded the speed
limit, left their route or made stops not strictly in line with their
duties. But from the very nature of the work of bus or truck
drivers it is apparent that an employer has only to follow any
truck or bus driver for a comparatively short time, to find him
guilty of many such violations. We are, therefore, not impressed
with the sincerity of an employer who advances such reasons for
a discharge, where he fails to show that such violations *ere fla-
grant or repeated and where the surrounding circumstances ilidi-
cate that the employee was active in union activities to which
the employer was opposed.
This is particularly pertinent in the instant case. It is significant
to note that the division of authority; exercised entirely by Beck
when present but delegated to his brother-in-law and father-in-law
when he is not present, has created uncertainty and dissatisfaction
among the respondent's employees. This appears clearly from the
testimony of practically every witness, including Beck himself. It
is also significant that, in the main, Beck's accusations against the
discharged employees are not supported by competent proof that the
acts complained of were attributable to faults of the persons accused.
In addition, most of the acts which Beck established were done by
the discharged employees, had occurred some time prior to the dis-
charge, or were, as the matter of lateness or damage to property, con-
stantly recurring faults of the employees discharged as well as of
all other employees, to all of which the respondent was apparently
resigned.2 Such circumstances cast grave doubt on the respondent's
sincerity in assigning these numerous infractions of ;company rules
1 Case No C-153, decision issued June 12, 1937, 2 N. L R B 1000
a Beck testified : "Nobody ever worked for me was what I call satisfactory . . .
DECISIONS AND ORDERS 117
as the causes for the discharges, particularly when he discharged
four employees within three days after the threat against Stephen
Spine for failure to join the union. We are convinced under all the
circumstances that Beck discharged these employees in an effort to
stem the tide of organizational activities among his employees.
We find that the respondent by discharging John G. Hasenei,
George T. Swayne, Frank Hogarty, and Clarence Bibbins has dis-
criminated in regard to hire and tenure of employment to discourage
membership in a labor organization.
The respondent by the discharges of John G. Hasenei, George T.
Swayne, Frank Hogarty, and Clarence Bibbins has interfered with,
restrained, and coerced his employees in the exercise of the rights of
Self-organization, to form, join or assist labor organizations, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities, for the purposes of collective bar-
gaining and other mutual aid and protection.
We find.that John G. Hasenei, George T. Swayne, Frank Hogarty,
and Clarence Bibbins were employees of the respondent at the time
of their discharge and ceased work because of the unfair labor prac-
tices of the respondent.
We find that the respondent's conduct burdens and obstructs com-
merce and tends to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
IV. THE REMEDY
We will order the respondent to reinstate the discharged employees
with back pay. Hasenei testified that he received extra compensa-
tion for night driving but the record does not show the rate of
compensation nor the frequency of night trips. Bibbins had no fixed
rate of payment and the record indicates he may not have worked
every working day. We will, therefore, order that the sums to be
paid Hasenei and Bibbins will be based on their average weekly com-
pensation for the eight weeks period prior to their discharge. The
period of eight weeks is chosen because the record indicates that
Bibbins had been receiving a higher rate in the two months prior to
his discharge than he had previously received.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding, the Board makes the following con-
clusions of law :
1. International Brotherhood of Teamsters, Chauffeurs, Stablemen,
and Helpers of America, Local Union No. 355, is a labor organiza-
tion, within the meaning of Section 2, subdivision (5) of the Act.
49446-38-vol. u[-9
118 NATIONAL LABOR RELATIONS BOARD
2. John G. Hasenei , George T. Swayne, Frank Hogarty, and Clar-
ence Bibbins were employees of the respondent at the time of their
discharges, within the meaning of Section 2, subdivision (3) of the
Act.
3. The respondent, by discriminating in regard to the hire and
tenure of employment of John G. Hasenei , George T. Swayne, Frank
Hogarty, and Clarence Bibbins and thereby discouraging member-
ship in a labor organization, has engaged in and is engaging in
unfair labor practices , within the meaning of Section 8 , subdivision
(3) of the Act.
4. The respondent , by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the.Act, has engaged in and is engaging in unfair labor practices
within the meaning of Section 8, subdivision (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2, subdivisions
( 6) and (7) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10, subdivision (c) of the National
Labor Relations Act, the National Labor Relations Board hereby
orders that the respondent Harry G. Beck, trading as Rocks Express
Company, and his officers, agents, successors, and assigns, shall :
1. Cease and desist from :
a. In any manner interfering with, restraining, or coercing his
employees in the exercise of their rights 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 purposes of collective bargaining and other mutual
aid or protection, as guaranteed in Section 7 of the National Labor
Relations Act;
b. In any manner discouraging membership in Local 355 or in
any other labor organization of his employees, by discriminating in
regard to hire or tenure of employment or any term or condition of
employment.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act
a. Offer John G. Hasenei, George T. Swayne, Frank Hogarty,
and Clarence Bibbins, and each of them, immediate and full rein-
statement to their former position, without prejudice to their senior-
ity and other rights and privileges;
b. Make whole George T. Swayne and Frank Hogarty for any
loss they may have suffered because of their discharge, by payment
to each of them of a sum of money equivalent to the amount each
DECISIONS AND ORDERS 119
would normally have earned as wages during the period from the
date of discharge to the date of the offer of reinstatement, less what-
ever each may have earned elsewhere during the same period;
c. Make whole John G. Hasenei and Clarence Bibbins for any
loss they may have suffered because of their discharge, by payment
to each of them of a sum of money equivalent to the amount each
would have earned during the period from the date of discharge to
the date of offer of reinstatement, based on the average weekly com-
pensation each received in the eight-weeks-period prior to his dis-
charge, less whatever each may have earned elsewhere during the
same period;
d. Post notices in conspicuous places where they will be observed
by the respondent's employees stating (1) that the respondent will
cease and desist as aforesaid; (2) that such notices will remain posted
for a period of at least thirty (30) consecutive days from the date of
posting;
e. Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this order what steps the
respondent has taken to comply herewith.