U. S. Truck Co., Inc.

National Labor Relations Board - Board Decisions

Feb 24, 1939

11 N.L.R.B. 706 (N.L.R.B. 1939)

In the Matter of U. S. TRUCK COMPANY, INCORPORATED and INTERNA- TIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL 174 Case No. C-543.-Decided February 24, 1939 Trucking Industry-Interference, Restraint, and Coercion-Company-Dom- inated Union: domination of and interference with formation and administra- tion ; support ; organization of, at meetings called by and participated in by respondent's president and vice president; attendance of vice president at conferences with attorney drawing bylaws of-Disestablishment as Collective Bargaining Representative Ordered: not to affect group insurance, sick benefit, and social activities of Benefit Union-Closed-Shop Contract Declared Void- Check-Off: reimbursement ordered for dues collected by means of-Discrimina- tion: discharges : for union activity ; to discourage membership in other union- Reinstatement Ordered-Back Pay: awarded from date of discrimination to date of offer of reinstatement less net earnings during said period ; where Trial Examiner did not order reinstatement back pay awarded from date of discrim- ination to date of Intermediate Report and from date of Board's Order to date of offer of reinstatement less net earnings during said periods. Mr. George J. Bott and Mr. Earl Cross, for the Board. Clark, Klein, Brucker & Waples, by Mr. Wilbur M. Brucker, of Detroit, Mich., for the respondent. Mr. Francis K. Young, of Detroit, Mich., for the Benefit Union. Mr. William F. Guffey, Jr., of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed - by International Union, United Auto- mobile Workers of America, Local 174, herein called the United,2 the National Labor Relations Board, herein called the Board, by Frank H. Bowen, Regional Director for the Seventh Region (Detroit, 'The charges were submitted unverified to the Regional Director on April 16, 1937. They were duly verified on April 20, 1937, on which date we deem the charges to have been duly filed. 2 Robert Kantor filed the charges herein as organizer for the United. The respondent contends that the charges cannot support the Board's complaint since the United did not expressly authorize Kantor to file them. The absence of express authorization cannot in any manner affect the jurisdiction of the Board. It may be presumed that Kantor's authority was implicit in his position as an organizer. 11 N. L. R. B., No. 52. 706 U. S. TRUCK COMPANY, INC., ET AL. 707 Michigan), issued and duly served its complaint dated January 7, 1938, against U. S. Truck Company, Incorporated, Detroit, Michigan, herein called the respondent, alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. As to the unfair labor practices, the complaint alleged, in substance, (1) that the respondent dominated and inter- fered with the formation and administration of, and contributed support to, the Employees Mutual Benefit Union of U. S. Truck Com- pany, a labor organization of its employees, herein called the Benefit Union; 8 (2) that the respondent discharged J. W. Warrem and J. W. Graham and has since refused to reinstate them for the reason that they joined and assisted the United; and (3) that the respondent by expressing opposition to the United and by other acts engendering fear of loss of employment because of membership in the United, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Thereafter, the respondent filed its answer denying the unfair labor practices charged in the complaint and alleging that Graham was dis- charged for violation of the respondent's rules against the use of intoxicating liquor while on duty and that the discharge of Warrem was the direct result of his repeated use of intoxicating liquor while on duty and his frequent absences from work without leave. On January 14, 1938, the Benefit Union filed its motion to inter- vene and its' answer to the complaint. The answer denied that the respondent had interfered with or dominated the formation or the administration of the Benefit Union and alleged that Warrem and Graham had often reported for work while in an intoxicated condi- tion, unfit to perform their duties. Pursuant to notice duly served upon the respondent, the United, and the Benefit Union, a hearing was held at Detroit, Michigan, from January 24 to January 26, inclusive, and from February 14 to Febru- ary 16, inclusive, 1938, before Charles W. Whittemore, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Benefit Union were represented by counsel, participated in the hearing, and were afforded full opportunity to be heard, to exam- ine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the beginning of the hearing, the Benefit Union's mo- tion to intervene was granted to the extent that its interests might s Subsequent to the filing of the charges , a petition for certification was filed by the Benefit Union. On September 2, 1937, the Board issued an order consolidating the two cases , and on December 18, 1937, the Board issued an order severing them. Hearing on the petition was postponed pending the Board's decision in the complaint case. 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appear. At the close of the hearing, the Benefit Union moved to dis- miss the complaint as to the alleged violation of Section 8 (2) of the Act, and the respondent moved to dismiss the entire complaint. The Trial Examiner reserved rulings on both motions. During the course of the hearing the Trial Examiner made numerous rulings on motions and on objections to the admission of evidence. The Board has re- viewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the close of the hearing both the respondent and the Benefit Union presented oral argument before and filed briefs with the Trial Examiner. On April 13, 1938, the Trial Examiner filed his Intermediate Re- port, copies of which were duly served upon the respondent, the United, and the Benefit Union. The Trial Examiner found that the respondent had engaged in and was engaging in the unfair labor practices alleged in the complaint, except as to the alleged discrimina- tory discharge of Warrem. He accordingly recommended that the respondent cease and desist from engaging in such unfair labor prac- tices, that it cease giving recognition to and completely disestablish the Benefit Union as the collective bargaining representative of any of its employees, and that it reinstate Graham with back pay from the date of his discharge to the date of reinstatement less any amount he has earned during that period. He further recommended that the complaint be dismissed as to Warrem. The motions to dismiss the complaint made by the Benefit Union and the respondent at the close of the hearing were both denied by the Trial Examiner in his Inter- mediate Report. These rulings are hereby affirmed. On April 25, 1938, both the respondent and the Benefit Union filed exceptions to the Trial Examiner's Intermediate Report, and requested oral argument before the Board. Pursuant to notice duly served on all the parties, a hearing for the purpose of oral argument was had on October 18, 1938, before the Board, in Washington, D. C. The re- spondent and the Benefit Union appeared by counsel and participated in the hearing. The Board has considered the exceptions of the re- spondent and the Benefit Union to the Intermediate Report and finds no merit in them. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, U. S. Truck Company, Incorporated, a Michigan corporation with its principal place of business at Detroit, Michigan, is engaged in the general trucking business, having freight terminals throughout the State of Michigan and in Toledo, Ohio. It is one of U. S. TRUCK COMPANY, INC., ET AL. 709 the leading trucking companies in the State of Michigan, dispatching from Detroit to various points in Michigan from 2 to 200 trucking units a day and from Detroit to Toledo and return, from 1 to 20 trucks per day. The respondent stipulated at the hearing that it is engaged in interstate commerce within the meaning of the Act. At the time of the hearing, the respondent employed about 225 persons. II. THE ORGANIZATIONS INVOLVED International Union, United Automobile Workers of America, Local 174, is a labor organization affiliated with the Committee for Industrial Organization, admitting to its membership employees of the respondent. The exact limitations of its jurisdiction do not appear in the record. Employees Mutual Benefit Union of U. S. Truck Company is an unaffiliated labor organization admitting to membership all the respondent's employees. III. THE UNFAIR LABOR PRACTICES A. Interference with the formation and administration of the Benefit Union Prior to March 1937 the great majority of the respondent's em- ployees were not members of any labor organization. A benefit asso- ciation, which had been organized among the respondent's employees in 1925 with the approval and assistance of the respondent, was dis- continued in 1928. In 1930 the respondent organized the Employees Mutual Benefit Association, herein called the Association, for the purpose of furnishing the employees with group insurance, a small- loan fund, and other similar benefits. The Association, which had the approval and assistance of the respondent, thus functioned until March 1937. During the first few months of 1937 American Federation of Labor, Local 299, herein called Local 299, was actively engaged in organizing the trucking industry generally in and about Detroit. There is some evidence that the respondent's wage rates, which were higher than the average in similar industries in this territory, deterred Local 299 organizers from making a determined effort to organize the respond- ent's employees. It appears that the United did not at this time seek to organize the respondent's employees, nor did these employees make any concerted effort to join the United. Carl W. Behrens, the respondent's president, was fully cognizant of the intense organizational activities then being conducted by almost all the labor unions in the Detroit area and throughout the entire 164276-89-vol. n--46 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD State of Michigan. He therefore called a meeting of several of the respondent's oldest and most highly trusted truck drivers. Present at this meeting, which was held in Behrens' office on February 28, 1937, were Behrens, Robert F. Jones, the respondent's vice president, and 8 or 10 of the respondent's truck drivers to whom Behrens had given notice to attend. Behrens testified that he called the meeting for the sole purpose of ascertaining the position the truck drivers intended to take in the trucking strike which was about to be called by Local 299. The evidence as to what took place at the meeting is conflicting. J. W. Graham, one of the truck drivers present, testified that Jones took an active part in the meeting and asked each of the drivers present a few questions concerning the Association. Graham, when questioned by Jones, said, "I believe I know what we are here for, you are afraid of a truck strike and you want to find out the way we feel about it." Graham further testified that Behrens and Jones then appointed a committee of three of the drivers present, gave them pencils and paper, and told them to "sign up" all the drivers on a petition expressing their desire to convert the Association into the Benefit Union. Kelley, who was one of the three employees chosen to assist in the organization of the Benefit Union, testified concerning the meeting : ... Mr. Jones done a lot of talking and Bill Graham gets up and says, he said, "Why beat around the bush? I know what you want. You want to start a union of some kind." So they fixed up a few guys, three men, to organize the union. That's all there was to it. Kelley did not remember who chose the committee. He recalled, how- ever, that when Graham suggested an "inside union" Jones asked, "Well, do you think it would be all right to do that?" Ling, another driver present who was called as a witness for the Benefit Union, testified that when Carter, one of the drivers, suggested that the re- spondent's employees could have a union "in our own group" just as well as the "big one," neither Behrens nor Jones made any reply because the drivers were talking among themselves. Although Ling testified that neither Behrens nor Jones suggested the formation of the Benefit Union, his testimony discloses the atmosphere in which it was conceived : Q. Did Mr. Behrens and Mr. Jones ask you to form a union? A. They didn't ask me. Q. Did you hear it asked in that meeting? A. No, there was no union mentioned. It was just they wanted to keep the old gang together, and keep them in peace. U. S. TRUCK COMPANY, INC., ET AL. 711 That was the main subject of the meeting. It had always been that way, just one big family, and that is why he thought if there was any difficulties, they always done the same way. On cross-examination Ling testified : Q. You say that he (Behrens) asked the men what they wanted after you got in there? A. He said, "What is the trouble and what do the men want?" Q. What did he ask that for? There wasn't any trouble among the employees of your company, was there? A. There was talk, that was all. Q. He (Behrens) didn't tell you to go out and join the U. A. W., did he? A. No, he wanted us to use our own opinion. Q. Nor did he tell you to go out and join the A. F. of L.? A. No, sir, he wanted it the best way we could form the local ourselves and still eliminate this uprising which he had in mind was coming.4 Hilborn, a witness for the Benefit Union and one of the three em- ployees chosen to organize the Benefit Union, testified that Behrens wanted to know with what union he would have to contend, but that the independent union idea came from the drivers, and the organiz- ing committee was chosen by the drivers present. When Hilborn was asked what Behrens and Jones said in discussing the new union, he replied that the drivers "did the discussing" and Behrens and Jones "did the listening." Hilborn denied that either Behrens or Jones gave them pencil and paper for the purpose of circulating a petition and testified that when they returned to the terminal to obtain the signatures, they found the paper and the pencils in the respondent's office. However, Hilborn's further testimony corroborates Ling's tes- timony as to the nature of the February 28 meeting : A. We were called into the office by Mr. Behrens to find out ... he wanted our side to see what we were going to do, what union he would have to contend with at a future date as long as there was such a disturbance in labor. Q. You were called in there to discuss the labor situation, is that it? A. Whether we were going to join up with the A. F. of L. going to have our own union ... a general discussion is what it was. Behrens, himself, testified that he was opposed to Graham's sugges- tion to convert the Association into a labor organization and that 4 Italics supplied. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only after Graham had insisted that a majority of the employees favored this proposal and that he would prove it by circulating a petition, did he consent to it. He told the employees "to go ahead and discontinue the association (sic) and incorporate in the Union" only after "persuasion of the men plus our manager." 5 Behrens de- nied that either he or Jones told the committee to "sign up" the drivers. From this mass of conflicting evidence it is impossible to determine who first gave verbal expression to the idea of an "inside union." It is likewise impossible to determine who actually designated the members of the organizing committee. It is clear, however, that the idea found inspiration in Jones' questions and suggestions at the meeting. Such conclusion finds ample corroboration in the testi- mony of Kelley, Ling, and Hilborn. Graham, Hilborn, and Kelley spent the night of Sunday, February 28, all day Monday, and Tuesday morning at the respondent's Detroit terminal securing signatures to the petition. Counsel for the Benefit Union argues in his exceptions that while the petition was circulated on the respondent's premises, it was not circulated on the respondent's time, since the truck drivers are paid on a trip rather than an hourly basis. While it is true that the highway drivers are paid on a trip basis, other employees, including the city truck drivers, are paid an hourly rate, as are the highway drivers when employed in and about the city. Although Graham and Hilborn were normally highway drivers, Kelley was a city driver and was paid an hourly wage rate, as were many of the employees who signed the petition. There is no evidence that deductions from wages were made for the time spent in circulating the petition. We are convinced that the signa- tures to the petition were secured on the respondent's premises during working hours. After securing the signatures of a substantial number of the em- ployees, Graham, Hilborn, and Kelley presented the petition so signed to Behrens, who told them that if the men wanted an inde- pendent union they "should organize that union as strong and cor- rectly as possible." On Tuesday, March 2, 1937, Graham, Hilborn, and Kelley met with Attorney Wilbur Brucker, counsel for the respondent in this pro- ceeding, e for the purpose of obtaining his assistance in completing the organization of the Benefit Union. Also present at this meeting with Brucker were Mrs. Stoker, the respondent's bookkeeper and the a Italics supplied. e Brucker was not counsel for the respondent at the time he was engaged by the Benefit Union . When the respondent engaged his services about May 1, 1937, Ile immediately informed the Benefit Union that he could no longer represent it. U. S. TRUCK COMPANY, INC., ET AL. 713 Association's treasurer, and Jones. '7 A few days later Stoker noti- fied the three organizers that Brucker was ready to meet again with them. Stoker, Jones, Graham, Hilborn, and Kelley again conferred with Brucker and discussed the proposed bylaws. On March 7, 1937, Behrens held a meeting at the Y. M. C. A. for the respondent's employees. Behrens testified : ... I called a meeting to start off with the safety meeting. I also had in mind inasmuch as this new union was in the progress of forming, to have as many men together for this change from the E. M. B. A. to the E. M. B. U. at this meeting, and I personally called this meeting for March 7. After Behrens and Jones talked briefly on safety measures, the meet- ing was devoted to organizing the Benefit Union. The bylaws were discussed and approved and the employees signed a paper expressing their willingness to convert the Association into the Benefit Union. Behrens and Jones then left the meeting and the employees pro- ceeded to elect officers. Behrens and Jones attended a later meeting of the Benefit Union on March 21, 1937, and addressed the employees concerning contemplated wage increases. On November 2, 1937, the Benefit Union issued a pamphlet drafted by its president and board of directors, entitled "Employees Mutual Benefit Union, What Is It?" Roger Meier, secretary of the Benefit Union, testified that he mimeographed it on a machine owned by the respondent and used by him with the consent of Jones. This pamphlet was circulated among the respondent's employees as well as among the truck drivers employed by other trucking companies. Shortly after its inception the Benefit Union obtained substantial concessions from the respondent. An oral agreement between the Benefit Union and the respondent provided for a closed shop and a check-off system whereby dues were collected by the respondent and turned over to the treasurer of the Benefit Union. Under this system each member of the Benefit Union paid $2 per month, $1.43 of which was allocated to group insurance, and the balance to the Benefit Union treasury. ' Graham and Kelley both testified that Jones was present. Jones was unable to attend the hearing because of illness, but the respondent made no effort to contradict the testimony of, Graham and Kelley, nor has the respondent made any effort to place Jones' testimony into the record. Although Brucker testified at the hearing, he did not deny that Jones attended the meeting in his office . During the oral argument before the Board, Brucker made no statement on this point , although it was consid- ered at some length by the Board. The respondent 's exceptions also support the conclusion that Jones was present : "Mr. Jones and Mrs. Stoker were members of the old association , Mrs. Stoker being treasurer, and it was their right and duty to see to it that the affairs and books of the old organization be legally disposed of and the corporation legally dissolved . Naturally the details of the incorporation and drafting of bylaws were discussed." 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In January 1938 the respondent signed a closed-shop agreement with the Benefit Union and recognized it as the exclusive bargaining agent of all its truck drivers and helpers, dock workers, checkers, and freight handlers. The agreement further provided that the oral agreement between the respondent and the Benefit Union cover- ing the check-off privilege and other concessions would remain effective pending the Board's disposition of the Benefit Union's petition for certification. B. Conclusions with respect to the Benefit Union It is apparent from the record that prior to February 28, 1937, the respondent's employees had not determined upon the course they would pursue toward self-organization despite the intensive organi- zational activities being carried on by Local 299 and the impending strike in the trucking industry. The idea of converting the Associa- tion into a labor organization was manifested for the first time dur- ing the meeting called by the respondent on February 28. We need not dwell upon the philosophical and psychological arguments advanced by the respondent and the Benefit Union with respect to the origins and sources of "ideas" and "thoughts." The record clearly indicates that the organizers of the Benefit Union received their inspiration from the questions and remarks uttered by the respondent's president and vice president at that meeting. The meeting was called by the respondent admittedly for the purpose of ascertaining the intentions of its employees. The record leaves no doubt that the chief purpose of the meeting was to discover some method to break the force of the impending strike. The desires of the respondent were made clear and unmistakable. The respondent contends that its conduct in calling the meeting cannot be char- acterized as domination or interference and that, therefore, it may not be held responsible for the origin of the Benefit Union. Domi- nation and interference within the meaning of the Act, however, are not confined to overt exertion of pressure. Subtle suggestion is often more effective than manifest direction. The early history of the Benefit Union, moreover, amply demon- strates the full support and approval accorded to its organization by the respondent. Not only was the Benefit Union pointedly sug- gested by the respondent, but it came into being under the watchful eye and guiding hand of the respondent's principal executives. Wit- ness to the respondent's support and approval are the open solicita- tions during working hours of signatures to the petition which authorized the conversion of the Association into a labor organiza- tion ; the "safety" meeting called to facilitate attendance at the first U. S. TRUCK COMPANY, INC., ET AL. 715 meeting of the Benefit Union; the participation of the respondent's executives in this meeting and in the second meeting of the Benefit Union; and the respondent's advice "to go ahead and discontinue the Association" after "persuasion of the men plus our (the re- spondent's) manager." While it does not appear who selected Brucker as the attorney for the Benefit Union, the evidence remains uncontradicted that the re- spondent's vice president accompanied the organizers to his office on two occasions and participated in the conferences which led to the formal organization of that union. Moreover, the bylaws which were adopted at the March 7 meeting irresistibly reflect the influence wielded by the respondent over the Benefit Union. They provided that the respondent shall neither interfere with, restrain, nor coerce members of the Benefit Union nor dominate or interfere with its administration. Normally such assurances rather than assumed are accorded to a labor organization as a result of collective bargain- ing. Their inclusion in the bylaws of the Benefit Union together with the presence of Jones at the time the bylaws were discussed raises a strong inference that the respondent took an active part in the drafting of these legal papers. We conclude from all the evidence that the Benefit Union is noth- ing more than the Association formally incorporated and endowed by the respondent's course of conduct with collective bargaining func- tions, not for the benefit of the employees but rather for the use of the respondent in warding off other forms of organization of its employees. We find that the respondent, by its activities described above, has dominated and interfered with the formation and administration of the Benefit Union, has contributed support to it, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. C. The discharges J. W. Graham., who had worked continuously for the respondent for approximately 6 years, was discharged on March 17, 1937, the day after he joined the United. The respondent claims that Gra- ham's discharge was occasioned by his repeated infractions of the respondent's rules against the use of intoxicating liquor while on duty. It is clear that Graham had a long record of violations of these rules. In 1926, during a previous period of employment with the respondent, Graham was discharged for drinking while on duty. He was reinstated in 1931 only after the intercession on his behalf of Behrens and Carl Pratt, the respondent's general superintendent. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is evidence that on approximately 14 occasions Graham had indulged in intoxicating liquor while on duty. The respondent contends that this conduct provides ample cause for discharge and argues that Graham would have been discharged sooner had Behrens known of Graham's repeated violations of the respondent's rules. This argument is not convincing. The first of the more serious offenses occurred in February 1936 when Graham, along with several other truck drivers, was snowbound near Fruit- port, Michigan. Jones, who was immediately informed of Graham's conduct, dismissed the matter after warning Graham. Although Behrens was out of town and had no knowledge of the incident at the time it occurred, he learned of it upon his return but took no action against Graham. In May 1936, when one Skinner, representa- tive of a manufacturer of Diesel engines, called upon the respondent to investigate the oil filters used on these engines, Graham came to the garage in an intoxicated condition and engaged in loud and pro- fane argument with Skinner. Although Behrens was present and witnessed Graham's conduct, Graham was not disciplined. On March 13, 1937, Graham was placed in charge of a group of employees who were loading freight in railroad cars in anticipation of the strike which was to begin on March 15. During the course of the day almost all the men in the group engaged in some drinking. Graham became intoxicated. When Pratt learned that the men were drinking, he went over to the track where they were working. Pratt testified that when he saw what was going on he "diplomatically, fig- uratively" patted Graham on the back because he was afraid that if he reprimanded Graham, the men would stop working and the job would not be completed. Pratt, however, reported the incident to Jones, who gave Pratt orders to keep Graham off the highway. On the following day, March 14, Graham was given the job of night watchman at the respondent's Detroit terminal. Behrens testi- fied that Graham was made a night watchman because "I still thought there might be some way somehow whereby Bill could be talked to and . . . kept on duty without discharging him ..." Pratt, how- ever, testified that Graham was made a night watchman because the respondent placed a great deal of confidence in him.s e Pratt's testimony on this point was as follows : Q. Do you know why Graham was given this watchman's job? A. Yes, due to very much confidence being placed in him by the management. Q. That was during all the union trouble, wasn't it? A. Yes, sir. Q. They still had confidence in him at that time, didn't they? A. You bet your life. Q. After he had been charged with being drunk and disorderly and everything else? A. That is right. U. S. TRUCK COMPANY, INC., ET AL. 717 Graham performed his duties as watchman on the nights of March 14 and 15. There are two conflicting accounts of the incidents claimed by the respondent to be the immediate cause of Graham's discharge. Pratt testified that on the morning of March 16 Graham, who had rung out his time card and was waiting to see Behrens, left Pratt's office about 7 o'clock, saying that he was going to get an "eye-opener." He returned about 9 o'clock in an intoxicated con- dition and told Kennedy, the respondent's office manager, that he had been kidnapped, forced to drink whisky and to join the United. Kennedy corroborated Pratt's testimony, and both Pratt and Kennedy fixed the date as March 16. Behrens, who fixed the date as March 17, testified that Graham came uninvited to his office in a drunken con- dition and related how he had been kidnapped and forced to join the United, whereupon Behrens rebuked him for his conduct, told him to leave the premises, and gave Kennedy orders to "pull" Graham's time card and "keep him out of service." When Jones returned to the office 2 days later, he formally discharged Graham "for drunken- ness" pursuant to orders from Behrens. Graham testified that he did not talk to Behrens on March 16, but that Behrens called him into his office at the close of work on March 17 and asked him if he had joined the United. Graham stated that he then told Behrens that when several members of Local 299 asked him to join he said he would join a union but instead of join- ing Local 299 he joined the United. Whereupon Behrens said, "That is all, I am done." Graham denied that he had been drinking. Graham's version of the incident is more completely in accord with the other facts. On the night of March 16 Graham did not act as night watchman. Pursuant to Behrens' orders he dressed for duty and remained at home all night subject to call. He was not called during the night, but in the morning he reported at the terminal and inquired why he had been kept at home all night. He worked all day on March 17 and was permitted to convoy a truck through terri- tory covered by striking members of Local 299. Graham's time card was "pulled" on the evening of March 17. It is not likely that Graham would have been given this important task on March 17 if he had been drinking. Nor is it reasonable to believe that Behrens would -have discharged Graham for intoxication on March 16 and then have requested him to be ready for call during that night, or permit him to work all the following day. The respondent admits that Graham was one of its best truck drivers. When the respondent started to use Diesel engines in 1933, Graham was assigned the important task of breaking in these en- gines . On March 13, 1937, he was placed in charge of a gang of men loading freight cars in anticipation of the forthcoming strike. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 14 he was made a special night watchman at a time when the respondent thought its premises were in danger of destruction by strikers. On March 17 Graham was given the important task of taking a truck through the strike zone. The respondent never com- plained about Graham's work and, although Graham has a long his- tory of drinking while on duty, the respondent never saw fit to dis- charge him until March 17, 1937, the day after he joined the United. We find that the respondent discharged Graham because of his membership in the United, thereby discriminating in regard to his hire and tenure of employment and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. At the time of his discharge Graham was earning an average of $48 per week. On March 27, 1937, he began employment as a truck driver for another trucking company." From that date to the date of the hearing he earned $1,024.90. Graham desires reinstatement. James W. Waarrem, who had worked continuously for about 8 years as a body repairman at the respondent's Detroit terminal, was dis- charged on March 22, 1937. He joined the United on March 15 and during the following week distributed several of the United's mem- bership application cards among the respondent's employees. The respondent contends that Warrem was discharged as a direct result of his intoxication on March 16, and because of his frequent absences from work without notice to, the respondent. Warrem, however, testified that when Vice-President Jones discharged him, Jones did not mention his drinking or his absence from work but berated him for joining the United. There is abundant evidence that during the last 2 years of his em- ployment Warrem indulged in intoxicating liquor during working hours and took frequent leaves of a half day or a day, giving illness as his excuse for these lay-offs. Behrens admitted that he overlooked Warrem's lay-offs because "In those days we worked 60 hours, and sometimes it was necessary for him or some of his men to come in on Sundays and do important repairs, so it seemed there was a reason for his off and on little lay-offs." There is no evidence that during this time Warrem's drinking interfered with his work, although in December 1936 he was laid off for a few days for drinking while on duty. The exact date of Warrem's drinking offense is in controversy. Warrem testified that he worked the entire day of March 16 and that the incident above referred to occurred on March 17. Behrens, Pratt, and Quandt, Warrem's foreman, fixed the date as March 16. War- 9 Although the full name of the company does not appear in the record , Graham referred to it as "Transamerican." U. S. TRUCK COMPANY, INC., ET AL. 719 rem's time card, which is in evidence, shows that on March 16 Warrem rang in at 7: 02 a. m. and rang out at 4: 37 p. m., and bears a notation that Warrem worked in the garage on that day. In the space on the time card for March 17 is written "did not work." Pratt testified that he remembered the day as March 16 because "It is part of my job to write on those time cards each day what a man is doing .. . when I see a man has checked in during the morning and I know during the day that I have been unable to get his services, I notice that." Pratt also testified that the notations on Warrem's time card were made by his clerk "under my immediate supervision." In view of this testimony Warrem's time card, bearing the notations that it does, takes on added significance. The evidence indicates that War- rem worked the entire day of March 16 but that he did not work on March 17, and we so find. On Wednesday, March 17, Warrem came to work as usual and, after a few minutes, he told his foreman he was ill and wanted to go home. He left his work and was not seen about the premises until be- tween 3 and 4 o'clock in the afternoon when he returned and invited several of the respondent's employees to a meeting of truck drivers to be held that evening and to be addressed by an organizer of the United. Warrem told Pratt and Behrens that he had been to a "union meeting" that afternoon. Although Pratt and Behrens testi- fied that Warrem was "staggering drunk", Warrem denied it and two of the respondent's witnesses testified that the only indication of Warrem's drinking was the odor of alcohol on his breath. It is not necessary, however, that we determine the degree of War- rem's intoxication on this particular afternoon. The incident is not significant since, except for the fact that Warrem returned to the terminal, his conduct on this occasion did not materially differ from his conduct on many occasions during the preceding 2 years. It is significant, however, that Behrens did not immediately discharge Warrem, but waited until March 19, when he told Jones to discharge him. Behrens testified that Jones hesitated but "I insisted on the discharge and he was discharged." At a meeting of the Benefit Union on March 21, James Snapp, president of the Benefit Union, told Warrem that Behrens desired to see him. The next day when Warrem went to the terminal to see Behrens he was stopped by Jones, who said, "You got to see me before you can go back to work." Concerning this interview with Jones, Warrem testified substantially as follows : When Jones asked "What do you know about that union you joined?" Warrem replied, "I don't know, but it would be a good idea to join it and find out." Jones then told Warrem, "You better go home and stay a couple of weeks and then come back and see me." When Warrem started to leave the 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office, Jones called him back and said, "Let me see your receipt, your card," and Warrem replied, "I haven't got my card with me, but I got my button." Jones looked at Warrem's union button and handed it back to him. After talking about the United for several minutes Jones said, "Well, I guess you're through." Jones put his "0. K." on Warrem's time card and told him to take the card to Kennedy and get his pay. Since Jones did not testify at the hearing and no one else was present during this interview, we are dependent entirely upon War- rem's testimony concerning what took place on this day. It is sig- nificant that, although Jones' illness prevented him from attending the hearing, the respondent made no attempt by deposition or other- wise to make his testimony a part of the record, nor did it in any other way attempt to refute Warrem's testimony on this point. Al- though Warrem's case is not free from doubt the evidence supports the allegation of the complaint that he was discriminatorily dis- charged on March 22, 1937, because of his membership in and activity on behalf of the United. We find that the respondent discharged Warrem because of his membership in the United, thereby discriminating in regard to his hire and tenure of employment and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. At the time of his discharge Warrem was earning approximately $33 per week. On May 23, 1937, he obtained part-time employment as a bartender at the Little Club. From that date until the date of the hearing he earned approximately $480. IV. 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 respond- ent described in Section I above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the respondent has dominated and interfered with the formation and administration of the Benefit Union, we shall order the respondent to withdraw all recognition from the Benefit Union and to disestablish it as the collective bargaining agent for any of its employees. The contracts, both oral and written, entered into between the respondent and the Benefit Union, whether they be the U. S. TRUCK COMPANY, INC., ET AL. 721 contracts in existence at the time of the hearing or entered into subse- quent to the hearing, are void and of no effect. We shall order the respondent to cease giving effect thereto.'° The Benefit Union has apparently retained the group insurance, loan fund, and recreational features of the Association. Our order requiring the respondent to disestablish it as the collective bargain- ing agent of its employees is not intended to interfere with any such activities, provided they are continued without discrimination against or in favor of any labor organization."' As stated above, the respondent, by means of a check-off system, collected the dues for the Benefit Union. Although the amount so collected was $2 per month, only 57 cents thereof was paid into the union treasury, the remainder being used as group-insurance pre- miums. We shall order the respondent to make whole its employees by payment to them individually of a sum equal to the amount so deducted and paid into the treasury of the Benefit Union. Having found that the respondent discharged J. W. Graham and J. W. Warrem because of their membership in and their activities on behalf of the United, we shall order the respondent to reinstate each of them without prejudice to his seniority or other rights and privileges. We shall also order the respondent to make Graham whole for any loss of pay he has suffered by reason of his discharge by payment to him of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings 12 during said period. We shall order the respondent similarly to reimburse Warrem. Since the Trial Examiner did not recommend the reinstatement of Warrem, however, we shall limit such reimbursement to the periods (1) from the date of his discharge to the date of the Intermediate Report, and (2) from the date of this Order to the offer of reinstatement. 13 10 Matter of Shetlabarger Grain Products Company and Flour and Cereal Workers Union, No. 20765, 8 N. L. R . B. 336; Matter of West Kentucky Coal Company and United Mine Workers of America , District 23, 10 N. L. R B. 88. U Matter of Utah Copper Company, a corporation , and Kenneoott Copper Corporation, a corporation and International Union of Mine, Mill, and Smelter Workers, Local No. 393, 7 N. L. R. B. 928; Matter of West Kentucky Coal Company and United Mine Workers of America, District 23, 10 N . L. R. B. 88. 12 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with seeking work or working elsewhere than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of 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 are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county , municipal , or other gov- ernment or governments which supplied the funds for said work-relief projects. IsMatter of E. R. Haffelfinger Company, Inc. and United Wall Paper Crafts of North America, Local No . 6, 1 N.L . R. B. 760. 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Union, United Automobile Workers of America, Local 174, and Employees Mutual Benefit Union of U. S. Truck Company are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of Employees Mutual Benefit Union of U. S. Truck Company and by contributing support thereto the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of J. W. Graham and J. W. Warrem, thereby discouraging membership in the United, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. 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, U. S. Truck Company, Incorporated, Detroit, Michigan, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) In any manner dominating or interfering with the administra- tion of Employees Mutual Benefit Union of U. S. Truck Company, or with the formation or administration of any other labor organization of its employees, and from contributing support to Employees Mutual Benefit Union of U. S. Truck Company, or to any other labor organization of its employees; (b) Discouraging membership in International -Union, United Automobile Workers of America, Local 174, or any other labor or- ganization of its employees by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of employment; U. S. TRUCK COMPANY, INC., ET AL. 723 (c) Giving effect to any contract it may have entered into with Employees Mutual Benefit Union of U. S. Truck Company, whether it be the contract in existence at the time of the hearing in this case or whether another has been entered into subsequent to said hearing; (d) 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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Employees Mutual Benefit Union of U. S. Truck Company as a representative of any of its employees for the purposes of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment, and completely disestablish Em- ployees Mutual Benefit Union of U. S. Truck Company as such repre- sentative; (b) Reimburse, individually and in full, all employees who were, or still are, members of Employees Mutual Benefit Union of U. S. Truck Company for all dues and assessments, if any, which it has deducted from their wages, salaries, or other earnings and which have been paid into the treasury of the Employees Mutual Benefit Union of U. S. Truck Company; (c) Offer to J. W. Graham and J. W. Warrem immediate and full reinstatement to their former positions without prejudice to their seniority or other rights and privileges; (d) Make whole J. W. Graham for any loss of earnings he may have suffered by reason of his discharge, by payment to him of a sum equal to that which he would normally have earned during the period from the date of his discharge to the date of the offer of reinstate- ment, less his net earnings during said period; deducting, however, from the amount otherwise due him, any monies received by said employee during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (e) Make whole J. W. Warrem for any loss of earnings he may have suffered by reason of his discharge, by payment to him of a sum equal to that which he would normally have earned during the period from the date of his discharge to the date of the Trial Examiner's Inter- mediate Report (April 13, 1938), and from the date of this Order to the offer of reinstatement, less his net earnings during said period; 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deducting, however, from the amount otherwise due him, any monies received by said employee during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or gov- ernments which supplied the funds for said work-relief projects; (f) Immediately post notices in conspicuous places about all its various freight terminals and maintain such notices for a period of at least sixty (60) consecutive days, stating (1) that the respondent will cease and desist as aforesaid and (2) that the respondent withdraws and will refrain from all recognition of Employees Mutual Benefit Union of U. S. Truck Company as a representative of any of its em- ployees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment, and completely disestablishes it as such representative; and (3) that any existing contract between the respondent and Employees Mutual Benefit Union of U. S. Truck Company is void and of no effect; (g) Notify the Regional Director for the Seventh Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.