South Bend Fish Corp.

National Labor Relations Board - Board Decisions

Feb 13, 1942

38 N.L.R.B. 1176 (N.L.R.B. 1942)

In the Matter of SOUTH BEND FISH CORPORATION and CHAUFFEURS,
TEAMSTERS AND HELPERS, LOCAL UNION No. 364 OF THE INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN,
AND HELPERS OF AMERICA (A. F. OF L.)
Case No. C-1994.-Decided February 13, 1942
Jurisdiction : wholesale and retail distribution of fresh and frozen fish and
frozen fruits and vegetables.
Unfair Labor Practices
Interference, Restraint, and Coercion: questioning employees concerning union
membership or activities; threats to close plant and other statements to
discourage membership in union.
Dzsertm.cnatron: discharges for union membership and activity.
Remedial Orders : reinstatement and back pay awarded to two of three dis-
charged employees ; third employee who had been reinstated awarded pay
lost through discharge.
Mr. Charles F. McErlean and Mr. Russell Packard, for the Board.
Hammerschmidt cf Johnson, by Mr. L. M. Hammerschmidt and
Mr. Milton A. Johnson, of South Bend, Ind., for the respondent.
Mr. George B. Campbell, of South Bend, Ind., for the Union.
Mr. Win. F. Scharnikow, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge 1 duly filed by Chauffeurs, Teamsters and
Helpers, Local Union No. 364 of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, affil-
iated with the American Federation of Labor, herein called the
Union, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Thirteenth Region (Chicago, Il-
linois), issued its complaint dated August 1, 1941, against South
Bend Fish Corporation, South Bend, Indiana, herein called the re-
spondent, alleging that the respondent had engaged in and was
'The original charge as filed March 6, 1941, the amended charge August 1, 1641
38 N. L. R. B., No. 212.
1176
SOUTH BEND FISH CORPORATION 1177
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.
Copies of the complaint, accompanied by notices of hearing thereon,
were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged
in substance (1) that the respondent discouraged membership in
the Union in that it discharged Robert R. Stender and Robert E.
Simpson on or about March 3, 1941, and Alex Vargo, Jr., on or about
March 4, 1941, refused to reinstate Stender until March 7, 1941, and
has since refused to reinstate Simpson and Vargo, for the reason
that they and each of them joined and assisted the Union and en-
gaged in concerted activities with other employees of the respondent
for the purpose of collective bargaining and other mutual aid and
protection; (2) that commencing on January 1, 1941, the respondent
(a) questioned employees concerning their union membership and
activities; (b) threatened to close the plant rather than allow the
Union to represent its employees; (c) threatened employees with
loss of their jobs if they joined or continued their membership in
the Union,; (d) urged its employees not to affiliate with the Union
and to discontinue their union membership and activities; and (3)
that by the foregoing acts the respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
On August 12, 1941, the respondent filed its answer in which it
denied the commission of any unfair labor practices, and alleged that
the three named employees were discharged for cause. It also as-
serted that the respondent sells no products in interstate commerce,
alleging that its products are all sold to purchasers in South Bend,
Indiana.
Pursuant to notice, a hearing was held in South Bend, Indiana,
on August 14 and 15, 1941, before J. J. Fitzpatrick, the Trial Ex-
aminer duly designated by the Chief Trial Examiner. The Board
and the respondent were represented by counsel and participated in
the hearing. An official representative appeared for the Union.
Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing upon the issues was afforded
all parties. At the close of the bearing the Trial Examiner granted
an unopposed motion by counsel for the Board to conform the plead-
ings to the proof with respect to variances in names and dates. The
parties were afforded, but did not avail themselves of, opportunity
to argue orally before the Trial Examiner. Pursuant to leave
granted to all parties at the close of the hearing, the respondent filed
a brief with the Trial Examiner which has been considered by the
Board. During the course of the hearing, the Trial Examiner made
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
numerous rulings on other motions and on objections to the admis-
sion of evidence. The Board has reviewed the rulings of the 'Trial
Examiner and finds that no prejudicial error was committed. The
rulings are hereby affirmed.
On October 27, 1941, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon all parties, in which
he found 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 Act. He
recommended that the respondent cease and desist therefrom and that
it take certain affirmative action in order to effectuate the policies
of the Act. No exceptions to the Intermediate Report nor briefs
other than that filed with the Trial Examiner by the respondent
have been filed, nor has any of the parties requested leave to argue
orally before the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, South Bend Fish Corporation, is an Indiana
corporation having its principal office and place of business in South
Bend, Indiana. It is engaged in the wholesale and retail distribution
of fresh and frozen fish and frozen fruits and vegetables. The re-
spondent has a local delivery system for its South Bend customers.
The wholesale part of the, business is carried on by means of three
truck routes, two of which are entirely within the State of Indiana,
while the third includes parts of the States of Indiana and Michigan.
The respondent contends that it sells its products outright to the
operators of the three truck routes at the plant in South Bend and
that the operators sell 'to the customers on their routes.2
During the year preceding the hearing, the respondent purchased
products valued at about $110,000. Approximately $105,000 by value
of such products were shipped to the respondent from points outside
the State of Indiana. During the same period sales of the respond-
ent amounted to $160,000. Sales on the Indiana-Michigan route ag-
gregated between $12,000 and $15,000, and approximately 50 percent of
such sales were made to customers in the State of Michigan. The
remainder of the respondent's sales were made to customers in the
State of Indiana.
2 The evidence concerning the relationship between the respondent and the route drivers
is discussed below in connection with the discharge of Vargo whether title passed to the
respondent ' s route drivers in Indiana is immaterial to the determination of the question
of the Board 's jurisdiction over the respondent . N L. R. B . v. Fainblatt, 306 U. S. 601.
SOUTH BEND FISH CORPORATION 1179
We find that the respondent's operations occur in commerce within
the meaning of Section 2 (6) of the Act.3
H. THE ORGANIZATION INVOLVED
Chauffeurs, Teamsters and Helpers, Local Union No. 364 of the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, affiliated with the American Federation of
Labor, is a labor organization admitting to its membership employees
of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The discharges
Alex Vargo, Jr., was a member of the Union, having joined it
some time before January 10, 1941, when he was employed by the
respondent. On the evening of Saturday, March 1, 1941, he suc-
ceeded in inducing Robert R. Stender, Robert E. Simpson, Carl
DeCloedt, and Ted Wieczorek, all employees of the respondent, to
join the Union. The following Monday morning, March 3, Camp-
bell, the union organizer, called upon Herman Bailin, president
and manager of the respondent, and presented a proposed union con-
tract. After Campbell had departed, Bailin called Wieczorek and
several other employees 4 to his office and asked them whether they
had joined the Union. He was told by Wieczorek that all the above-
named employees had made application to join the Union.5 Imme-
diately after this interview with Bailin, Wieczorek and a few other
employees of the respondent held a meeting outside Bailin's office
and decided that they did not want to belong to the Union. They
immediately reported this to Bailin. Neither Vargo, Stender, nor
Simpson was in the group of employees who advised Bailin that they
had decided not to join the Union. Stender was discharged March
3, Simpson and Vargo the following day.
Robert R. Stender was employed by the respondent as a mechanic
and local truck driver in October 1940 and was discharged on the after-
noon of March 3, 1941. He testified that his discharge occurred under
the following circumstances : Early in the afternoon of that day, he
was summoned to Bailin's office and was asked by Bailin what he knew
about the Union. When Stender replied that he knew nothing about
3 See Wilson t Co., Inc. v. N. L. R. B. (C. C A. 7), decided November 17, 1941.
+ Dieczorek testified that Stender was also called to the office at this time , but it is clear
from the testimony of Stender and Bailin , as well as later testimony of Wieczorek, that
Stender was not present during the above interview , but was called to the office by Bailin
later in the same day.
5 The findings concerning the conferences between Bailin and the employees on the morn-
ing of March 3 are based upon the substantially uncontradicted testimony of wieczorelc
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union, Bailen stated : "You're fired." Stender then left Bailin's
office and, as he was standing in the plant, Bailin came out and stated,
"Give the Union man a seat. Give him a chair so he can sit down."
Stender continued to stand there, whereupon Bailin called him into the
office again and rebuked him for having joined the Union, saying, "You
went up and joined the Union, so now you can see if the Union will
feed you." Bailin also stated that he knew that Simpson and Wiec-
zorek had joined the Union and that "Alex Vargo was the agitator of
all the Union doings," and further stated, "If I could get hold of Alex
Vargo right now on the telephone I would pull him in here off the
road.e I would fire him, too ..."
Bailin denied this testimony of Stender and denied that Stender's
discharge was related to his union affiliations. He testified that he
discharged Stender for spending too much time in a nearby restaurant
and in a nearby cleaning establishment, and for loafing in the plant.
According to Bailin, Stender had habitually spent working time in the
restaurant and the cleaning establishment since the commencement
of his employment and had been warned by Bailin on a number of
occasions that if he did change his habits he would be discharged.
Bailin further testified that Stender was found visiting in the adjoin-
ing restaurant during working hours on March 3 and that this precipi-
tated his discharge. Although Stender admitted that he visited in
both the restaurant and the cleaning establishment on company time
and had been reprimanded by Bailin for such conduct on three occa-
sions prior to March 3, there is no credible evidence that Stender was
in fact in the restaurant loafing on the day of his discharge.? The
Trial Examiner, who observed Bailin's demeanor on the witness stand,
found that he was an unimpressive witness. He further found, and
we agree, that Bailin's testimony was characterized by inconsistencies,
exaggerations, and contradictions. Bailin 's denials of Stender's tes-
timony are, therefore, rejected. We credit Stender's testimony, as did
the Trial Examiner, and find that Stender was discharged under the
circumstances related by him. We find further, as did the Trial Ex-
aminer, that the discharge of Stender was the respondent's first step in
a plan to rid itself of those employees who had joined the Union and
refused to repudiate it. Stender was reemployed by the respondent
on March 8, 1941.
We conclude, as did the Trial Examiner, that the respondent, by dis-
charging Stender on March 3, 1941, and refusing to reinstate him
until March 81 1941, discriminated in regard to his hire and tenure of
employment, thereby discouraging membership in the Union and inter-
Vargo was then away from the plant , having left on his route early that morning
7 The only direct testimony offered on this point was that of Wieczorek , who first testi-
fied that he called Stender from the restaurant on March 3, but who later gave contra-
dictory testimony on cross-examination.
SOUTH BEND FISH CORPORATION 1181
fering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act.8
Robert E. Simpson was first employed by the respondent in October
1940, as a truck driver delivering to the retail trade. After about 5
weeks on this job he was taken off the truck because he was too untidy
to deal directly with the customers, and was transferred to work in
the plant, at cleaning fish. Simpson worked at this job until January
17, 1941, when he quit. On February 6, 1941, he was rehired at the
same work, but on a part-time basis, receiving between 11/2 and 4 days'
work a week until his discharge on March 4, 1941.
Simpson's version of the circumstances surrounding his discharge
is uncontradicted, except as indicated below. He testified as follows :
On the morning of March 3, Bailin called him into the latter's office
and asked him how many of the employees had joined the Union and
whether he had joined that organization. Simpson refused to answer
either question. Bailin then said that he had beaten the Union once
and that he was going to beat it again, and told Simpson that he would
have to make up his mind, that it was either the Union or his job.
Simpson asked for time to think it over. When he checked out that
night Bailin inquired whether he had made up his mind. Simpson
answered in the negative. Bailin then told him that if he had any-
thing further to do with the Union there was no use coming to work in
the morning. The next morning Simpson worked until Bailin came
to the plant, when George M. Clark, who was in charge of the re-
spondent's books and exercised supervisory authority over the ordi-
nary employees,9 handed Simpson his pay envelope and said, "Now
you have a long time to think things over." Simpson then left the
plant and has not been reinstated.
Bailin denied having told Simpson on March 3 that he had beaten
the Union once and was going to beat it again. He did not specifically
deny the other statements attributed to him by Simpson, but denied
generally having made any anti-union statements to his employees.
Clark was not questioned about the discharge of Simpson.
Bailin testified that he discharged Simpson because the latter was
too dirty in his person and because Simpson had threatened to quit
his job. As found above, Simpson had been removed from the de-
livery truck and assigned to cleaning fish because of his unclean per-
sonal appearance. The evidence establishes that the respondent had
8 Stender applied to Bailin for reinstatement on March 7 After expressing doubt as to
whether he should reinstate Stender, Bailin stated that he would give Stender another
chance On this occasion nothing was said about the Union. Stender was reinstated on
March 8. Simpson and Vargo had been discharged on March 4 and the other employees
had repudiated the Union . The respondent 's reinstatement of Stender on March 8 does
not detract from the convincing evidence that he had been discharged because of his union
membership.
Clark became vice president of the respondent in March or April 1941.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been willing to retain Simpson as a fish cleaner but that Simpson was
dissatisfied with this job and, in fact, had threatened to quit if he
was not restored to his delivery job.10 It also appears that on February
21 the respondent hired one Fogle to do the same type of work as
Simpson had been doing. According to Bailin, Fogle was hired to
take Simpson's place in the event that the latter quit his job. How-
ever, Simpson did not quit. The respondent gave no explanation as
to why Simpson was discharged in the middle of the week instead of
on the previous Saturday, March 1, which was the end of a pay-roll
period. It is most unlikely that Simpson would have been discharged
in this fashion if the respondent had acted pursuant to a considered
plan to replace him because of his threat to quit.
As found above, Bailin's testimony was inconsistent, exaggerated,
and contradictory. We credit Simpson's testimony concerning the cir-
cumstances of his discharge and find that he was discharged for the
same reason as had prompted the discharge of Stender. We find, as
did the Trial Examiner, that by discharging Simpson on March 4,
1941, and refusing thereafter to reinstate him, the respondent dis-
criminated with regard to his hire and tenure of employment, thereby
discouraging membership in the Union and interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaranteed
by Section 7 of that Act.
Alex Vargo, Jr., was employed on January 10, 1941, as a salesman
and truck driver on the respondent's Fort Wayne route. The re-
spondent contends that he was not an employee but was an inde-
pendent contractor. Vargo was employed on a commission basis,
with a guaranteed weekly drawing account of $22. He had no writ-
ten contract of employment and was subject to discharge at the will
of the respondent. The respondent exercised close supervision over
Vargo's route, the prices he charged, credit sales made by him, and
the manner in which he discharged his duties. Vargo drove a truck
owned and maintained by the respondent. He made weekly settle-
ments with the respondent in which he was required to account for
all goods received from the respondent, sales made, and cash col-
lected. We find that Vargo is an employee of the respondent within
the meaning of the Act.
As has been stated, Vargo was a union member before he entered
the respondent's employ and was instrumental in securing union
applications from four of the respondent's employees on March 1,
1941. We have found that Bailin stated to Stender on March 3 that
he knew Vargo was the principal union "agitator" and that if Vargo
were then available he would be discharged forthwith. Marcella
11 Bailin admitted that he would have retained Simpson as a fish cleaner if the latter had
not threatened to quit.
SOUTH BEND FISH CORPORAT1'ON 1183
Vargo, wife of the claimant and also then in the employ of the
respondent, testified that she was called to Bailin's office on March 3
while Bailin was talking to Stender, and that Bailin then said that
Vargo had made a "silly mess" of things and that he would be
discharged for having joined the Union as soon as he returned to the
plant. Bailin did not deny that Mrs. Vargo was called to his office
on this occasion, and did not deny the statements attributed to him
by her. Her testimony, substantially corroborated by that of Sten-
der, is credited by us as it was by the Trial Examiner. We accord-
ingly find that Bailin made the statements related above.
Vargo had left early Monday morning on his route and did not
return until Tuesday afternoon, March 4. Upon his return he was
discharged by the respondent. He testified that just before his
discharge Clark told him that he had "made a sorry mess of things,"
that he asked Clark what he meant and the latter said that he had
reference to Vargo's getting the men to join the Union. Clark then
added, according to Vargo, "that the fellows had minds of their own,
if they wanted to speak about getting better wages, and if they did
that they had only to go in and speak to Mr. Bailin," and told Vargo
that Bailin wanted to see him. Clark denied Vargo's testimony con-
cerning their conversation immediately preceding Vargo's discharge.
The Trial Examiner did not credit his denial, nor do we. We find
that Clark made the statements substantially as testified by Vargo.
Bailin first testified that he discharged Vargo because he had had
too many accidents with his truck. Bailin later added as another
reason for the discharge that Vargo had neglected his route and
made insufficient sales.1' Regarding the accidents to Vargo's truck,
Bailin attributed to Vargo's carelessness every mechanical difficulty
which had developed in Vargo's truck during the period of his em-
ployment. Vargo's truck was the oldest one operated by the respond-
ent on the out-of-town routes. There is no evidence that Vargo was
responsible for these mechanical difficulties and it is equally probable
that they were attributable to the truck's age. However, it is undis-
puted that Vargo did have two accidents with his truck. The first
of these happened sometime in February and resulted in damage to
the bumper of the truck.12 The second one occurred during the last
week in February when, in backing into the respondent's garage,
Vargo broke the cover on the door of the refrigerator box on the
running board, and also a board in the garage door. Bailin was
present in the garage on March 1 when Stender was repairing the
damaged refrigerator door. On this occasion, according to the-testi-
" Bailin also contended that Vargo carried passengers on his truck, contrary to
instructions . There is no evidence to support this contention
12 There is no evidence that this accident was the result of Vargo's carelessness.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony of Stender and Bailin, which we credit, Bailin told Vargo that
if he had any more accidents he would be discharged. Bailin testi-
fied that by Monday morning, March 3, he had decided to discharge
Vargo because of his accidents but was unable to do so because he
overslept and did not arrive at the plant before Vargo had left on
his route. Bailin further testified that he discharged Vargo immedi-
ately on his return, this being the first opportunity that presented
itself. The only new factor which developed between the morning
of March 1 and the time of Vargo's discharge was the union organiza-
tional activities of the employees which Bailin knew had been insti-
gated by Vargo. In view of Bailin's demonstrated hostility toward
the Union, we find, as did the Trial Examiner, that Vargo's accidents
were not the reason for Bailin's decision to discharge him.
We turn to consideration of the respondent's contention that Vargo
did not produce a sufficiently large volume of business, and that he
neglected his customers. Vargo's route was the newest of the three
out-of-town routes operated by the respondent, having first been
opened in November 1940. The average weekly gross sales of Vargo's
predecessor during the 6 weeks prior to Christmas of 1940 amounted
to $222.32. During the 8 weeks of Vargo's employment, his average
weekly sales amounted to $243.49. During the 8 weeks following
Vargo's discharge, which period included most of the Lenten sea-
son,13 his successor had average weekly sales of $244.27. It is evident
that these comparative figures negate the respondent's contention as
to volume of sales. The respondent also offered the sales figures for
the other two routes for comparison with those of Vargo for the same
period. Such a comparison would, however, be inconclusive, since
Vargo was in the process of developing a new route, while the other
two routes were well established. '
Bailin testified that Vargo neglected his customers by failing
to make regular calls, by not stocking his truck with sufficient and
varied merchandise to fill their normal requirements, and by failing
to make delivery, on the dates requested, of two specific orders, one
from Fort Wayne and the other from Elkhart. Vargo denied these
charges. He explained that the only instances of his inability to fill
orders from the stock on his truck occurred because Bailin had
limited his supply of the particular merchandise; that on the day
requested for delivery of the Fort Wayne order, Vargo was at the
opposite end of his two-day route in accordance with the schedule
arranged by Bailin ; and that, contrary to Bailin's testimony, Vargo
filled the order from Elkhart the same day it was made. In addition,
Vargo testified that he was praised by Bailin for his handling of the
"The record shows that the respondent's business was at its height during the Lenten
season, gradually increasing during that period, reaching its peak at Easter, and falling
off sharply thereafter.
SOUTH BEND FISH CORPORATION 1185
route. This testimony was corroborated by that of Vargo's wife to
the effect that a week before Vargo's discharge Bailin told her that
Vargo was doing "wonderful work." As did the Trial Examiner,
we credit this testimony of the Vargos, despite Bailin's denials, and
find that Vargo's handling of his route and treatment of his customers
were satisfactory to the respondent. Upon the entire record, more-
over, we credit the testimony of Vargo concerning the circumstances
under which he was discharged.
Vargo's wife, Marcella, testified that about 2 weeks after Vargo's
discharge, Bailin stated to her, in the course of a conversation,- that
he had discharged Vargo because of his union membership. Vargo's
sister, Helen, testified that at about the same time Bailin asked her
whether Vargo was working and that, when she answered in the
negative, Balin said, "Well, you go and tell the Union about that
and let the Union support him." Although Bailin denied the testi-
mony of Marcella and Helen Vargo, the Trial Examiner believed
it, as do we.
We find that the respondent discharged Vargo on March 4, 1941.
and thereafter refused to reinstate him, because of his union mem•
bership and activity, and that the respondent thereby discriminated
in regard to his hire and tenure of employment, discouraging mem-
bership in the Union and interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
B. Interference, restraint, and coercion
As heretofore found, on March 3, 1941, Bailin questioned Wiec-
zorek and several other of the respondent's employees concerning
their union membership and ascertained the names of employees who
had joined the Union, following which the employees questioned
and others immediately withdrew from the Union and so advised
Bailin.
Marcella Vargo testified that about 21/2 weeks later Bailin said to
her that he knew that she had joined the Union, and added, "I'll close
my doors before I'll have another union in this building." Bailin's
denial of this testimony is not credited for the reasons above set
forth. We find that he made the statements substantially as testi-
fied by Marcella Vargo. As has been found above, Bailin inquired of
Helen Vargo whether her brother was working and when she replied
in the negative, Bailin said, "Well, you go and tell the Union about
that and let the Union support him."
From the foregoing and from the entire record in the case, we
find that the respondent questioned its employees concerning their
union membership and activities, threatened to close its plant rather
than allow the Union to represent its employees, and discouraged
438861-42-vol. 38-76
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its employees from affiliating with or continuing their membership
in said Union ; and that by said acts the respondent has interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed to them in Section 7 of the Act.
IV. THE EVFECT 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
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
Since we have found that the respondent has engaged in unfair
labor practices, we shall order it to cease and desist therefrom and
take certain affirmative action designed to effectuate the policies
of the Act.
We have found that the respondent discharged Robert R. Stender,
Robert E. Simpson, and Alex Vargo, Jr., and thereafter refused to
reinstate Simpson and Vargo, and refused to reinstate Stender until
March 8, 1941, for the reason that they joined and assisted the Union
and engaged in concerted activities for the purpose of collective
bargaining and other mutual aid and protection.
We shall, therefore, order that the respondent offer Simpson and
Vargo immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority and
other rights and privileges; and that it make whole Stender, Simp-
son, and Vargo for any loss of pay they have suffered by reason
of their discharges, by payment to Simpson and Vargo of a sum of
money equal to the amount which each normally would have earned
as wages from the date of his discharge to the date of the respondent's
offer of reinstatement, less his net earnings 14 during said period,
and by payment to Stender of a sum of money equal to the amount
which he normally would have earned as wages from the date of his
discharge to the date of his reinstatement, less his net earnings during
said period.
"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 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 re-
ceived for work performed upon Federal , State, county , municipal, or other work -relief
projects shall be considered as earnings . See Republic Steel Corporation v. National Labor
Relations Board, 311 U. S. 7.
SOUTH BEND FISH CORPORATION 1187
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. Chauffeurs, Teamsters and Helpers, Local Union No. 364 of
the International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, 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 Robert R. Stender, Robert E. Simpson, and Alex Vargo, Jr.,
thereby discouraging membership in the Union, 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 re-
spondent, South Bend Fish Corporation, South Bend, Indiana, and
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Chauffeurs, Teamsters and Help-
ers, Local Union No. 364, of the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, affiliated
with the American Federation of Labor, or any other labor organiza-
tion of its employees, by discharging or refusing to reinstate any of its
employees, or in any other manner discriminating in regard to their
hire or tenure of employment, or any term or condition of their
employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their 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.
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Robert E. Simpson and Alex Vargo, Jr., immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and
privileges;
(b) Make whole Robert R. Stender, Robert E. Simpson, and Alex
Vargo, Jr., and each of them for any loss of pay he may have suffered
by reason of the discrimination against him by payment to Simpson
and Vargo of a sum of money equal to that which each normally would
have earned as wages from March 4, 1941, to the date of the respond-
ent's offer of reinstatement, less his net earning during such period;
and by payment to Stender of a sum of money equal to that which he
normally would have earned as wages from March 3, 1941, to March
8, 1941, the date of his reinstatement, less his net earnings during said
period;
(c) Immediately post in conspicuous places throughout its plant at
South Bend, Indiana, and maintain for a period of at least sixty (60)
consecutive days notices to its employees stating (1) that the respond-
ent 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)
and (b) of this Order; and (3) that the respondent's employees are free
to become or remain members of Chauffeurs, Teamsters and Helpers,
Local Union No. 364, of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, affiliated with
the American Federation of Labor, and that the respondent will not
discriminate against any employee because of membership in or activity
on behalf of that organization;
(d) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.