Nu-Car Carriers, Inc.

In the Matter of NU-CAR CARRIERS, INC. and JAMES LESLIE SALINGER Case No. 4-OA-117.-Decided January 13, 1950 DECISION AND ° ORDER On August 31, 1949, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding , finding that the Respondent had engaged in certain unfair labor practices in viola- tion of Section 8 (a) (1) and Section 8 ( a) (3) of the Act, and rec- ommending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report, and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Reynolds, and Murdock]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs filed by the parties, and the entire record in the case,' and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner with the additions noted below. 1. The Trial Examiner found, and we agree, that the Respondent's "owner-operators" were and are "employees" of the Respondent and not "independent contractors" within the meaning of Section 2 (3) of the Act . Like the Trial Examiner , we believe that the Agreement of Sale and the Lease of Equipment Agreement , under which the drivers operated , placed all essential controls over the equipment and the manner and details of the work performed, in the hands of the Respondent. Only a partial and limited possession of the tractor was I The request of the Respondent for oral argument is denied because the record and the briefs submitted by the parties, in our opinion , adequately present the issues and positions of the parties. 88 NLRB No. 24. 75 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reserved by the contracts to the "owner-operators." z We also view as important the fact that the Respondent's business is entirely devoted to and dependent upon the operations carried out by the individuals concerned herein. While this facet of the total relationship between the company and the drivers is, of course, not alone determinative of the status of the operators, we believe it to be of value in the assess- ment of that status. In this connection it should be noted that the duties of the drivers are not of a transient nature but are an integral, and thus continuing, part of the enterprise. We do not have an in- stance herein of individuals performing duties which are subsidiary or even corollary to the principal services offered by the company.3 The transportation of new cars by trailer-trucks constitutes the sole business of the Respondent and the maintenance of that traffic requires the employment in one form or another of qualified drivers. To accept the Respondent's contention that these operators are engaged in indi- vidual business enterprises would require us to consider the Respondent to operate in a manner analagous to a holding company. We do not believe the Respondent to be so divorced from the actual performance of its business. 2. We also find with the Trial Examiner that these employees were engaging in protected concerted activity in discussing and formulating their position as to the renewal or modification of the agreements of lease and sale. In directly interfering with the drivers' discussions and their attempts to induce their representative to support their con- clusions, the Respondent attempted to debar its employees from effect- ing a substantial change in their working conditions. We do not believe that the intent or purpose of the amended Act is to foreclose employees from questioning the wisdom of their representatives or from taking such steps as they deem necessary to align their union with their position. The Board has previously stated that interference with intraunion disputes, under certain circumstances, may be viola- tive of the Act to the same extent as coercion exerted in employer-union or, interunion conflicts.' The discharge of a dissident within a union when that termination is motivated by a desire to eliminate protest must inevitably result in an infringement under Section 8 (a) (1) and 8It appears from the agreements signed by the drivers that at no time during the dura- tion of the contracts could the operators secure title to the tractor they were purchasing. Paragraph VII B of the lease agreement states that "it is necessary that title to (the vehicle ) remain in Company's name during the entire term of this agreement." As noted by the Trial Examiner, the physical possession of the tractor is rigidly controlled under the terms of the contracts. We conclude, therefore, that the "owner-operator" system, in practice, became little more than an intricate piecework wage system with some provision for added remuneration for those drivers who decreased maintenance costs. 8 Cf. Spickelmeier Co., 83 NLRB 452; Roy 0. Martin Lumber Co., 83 NLRB 691. See Fairfield Engineering Company, 74 NLRB 827, where the intraunion dispute con- cerned affiliation with a larger union. NU-CAR CARRIERS, INC. 77 8 (a) (3) of that employee's right to self-organization. We believe that inherent in that right is the privilege of protest and persuasion of others. Without this, effective employee representation becomes a nullity. 3. The Respondent urges that the statements made to various drivers which were held by the Trial Examiner to violate Section 8 (a) (1), are protected under Section 8 (c) as coming within the province of free speech. We do not agree. The statements found by the Trial Examiner to be in violation of the Act clearly contained threats of reprisal and force. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Rela- tions Board hereby orders that the Respondent, Nu-Car Carriers, Inc., Raritan, New Jersey, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Lo- cal Union No. 469, or in any other labor organization of its employees, by discriminatorily discharging employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 469, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mu- tual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to James Leslie Salinger immediate and full reinstate- ment to his former position or to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination of the Respondent against him by payment to him of a sum of money equal to that which he normally would have earned from the Respondent from the date of the Respondent's dis- 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crimination against him to the date of the offer of reinstatement, less his net earnings during the period; (b) Post at its terminal in Raritan, New Jersey, copies of the notice attached hereto and marked Appendix A.5 Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by the Respondent, be posted by it immedi- ately upon receipt thereof, and maintained by it for sixty (60) con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Fourth Region in writ- ing within ten (10) days from the date of the receipt of this Order, what steps the Respondent has taken to comply with the foregoing recommendations. INTERMEDIATE REPORT AND RECOMMENDED ORDER Harold.Kowal, Esq., for the General Counsel. A. Harry Moore, Esq., by J. S. Spiro, Esq., of Jersey City, N. J., for the Respondent. STATEMENT OF THE CASE Upon an amended charge filed on November 30, 1948, by James Leslie Salinger, the General Counsel of the National Labor Relations Board,' by the Regional Director for the Fourth Region (Philadelphia, Pennsylvania), issued a com- plaint dated April 8, 1949, against Nu-Car Carriers, Inc., herein called the Re- spondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended (Public Law 101, 80th Congress, 1st Session), herein called the Act. A copy of the amended charge was duly served upon the Respondent on December 3, 1948. Copies of the complaint, the amended charge, and a notice of hearing were also duly served on the Respondent and James Leslie Salinger on April 8, 1948. With respect to the unfair labor practices, the complaint alleges in substance: (1) That, on and since approximately June 8, 1948, the Respondent, in viola- tion of Section 8 (a) (1) of the Act, has interfered with, restrained, and co- erced its employees in the exercise of the rights guaranteed in Section 7 of the Act, by interrogating them concerning their union activities and their affilia- tion with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 469 (herein called the Union), and by warning them not to engage in any union or other concerted activities ; and 5 In the event that this Order is enforced by a decree of a Circuit Court of Appeals, there shall be inserted before the words, "A DECISION AND ORDER" the words, "A.DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 1 The General Counsel and his representative at the hearing are herein referred to as the General Counsel, and the National Labor Relations Board, as the Board. NU-CAR CARRIERS, INC. 79 (2) that, in violation of Section 8 (a) (1) and (3) of the Act, the Respondent discharged employee James L. Salinger, and has since failed and refused to reinstate him to his former or a substantially equivalent position, because the Respondent believed that he had joined or assisted the Union or had engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. In its answer to the complaint, the Respondent admits certain allegations of the complaint but denies the commission of any unfair labor practices. In its answer, the Respondent also asserts in substance that Salinger was not an employee of the Respondent, but an independent contractor; that the Board, therefore, has no jurisdiction over the present case; that the relationship be- tween the Respondent and Salinger "was terminated for good and sufficient cause" ; and that Salinger's relationship with the Respondent was terminated because he broke (1) an oral agreement between him and the Respondent, (2) a written agreement between the Respondent and the Union, which was Salinger's representative, and (3) a promise to the Respondent that he would execute a written agreement embodying the terms of his previous oral agreement with the Respondent. Pursuant to notice, a hearing was held in New Brunswick, New Jersey, from May 10 to May 17, 1949, inclusive, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel and the Re- spondent participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing upon the issues. At the conclusion of the General Counsel's case-in-chief, the undersigned denied a motion by the Respondent's Counsel to dismiss the com- plaint. Decision was reserved, however, upon a similar motion made by the Respondent's counsel at the end of the hearing. That motion is now denied in accordance with the considerations hereinafter set forth. Since the close of the hearing, briefs have been received from the Respondent and the General Counsel. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Nu-Car Carriers, Inc., is a Maryland corporation with its principal place of business in Chester, Pennsylvania, and is engaged in the transportation of new automobiles to dealers from assembly plants of the Ford Motor Company in Norfolk, Virginia, and Chester, Pennsylvania, and also from a Lincoln-Mercury automobile assembly plant in Raritan Township, New Jersey. At its Raritan terminal, which alone is involved in the present case, it annually receives automobiles of a value of $10,000,000, and delivers them to destinations outside the State of New Jersey. The Respondent admits, and the undersigned finds that it is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 469, is a labor organization within the meaning of the Act. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The status of the Respondent's "owner-operators" The present proceeding concerns truck drivers, known as "owner-operators," whom the Respondent uses in its operations out of its Raritan, New Jersey, terminal. The General Counsel contends that they are "employees" of the Re- spondent within the meaning of Section 2 (3) of the Act; the Respondent con- tends that they are not "employees" but that they are "independent contractors" who are expressly excluded from the coverage of the Act by the same statutory subsection. The Respondent's yard or terminal, which adjoins a Lincoln-Mercury auto- mobile plant also in Raritan Township, was established as a new terminal of the Respondent on or about April 13, 1948, when the Respondent, as a common car- rier, began the conveyance of new automobiles by tractor-drawn trailer from the Lincoln-Mercury plant to automobile dealers both inside and outside the State of New Jersey and also to an export point at Edgewater, New Jersey. Before beginning its Raritan operations or engaging any drivers for that pur- pose, the Respondent entered into a written agreement with the Union which provided that all drivers used by the Respondent at the terminal were to be mem- bers of the Union and that, where the conveyance was by tractor and trailer, the Respondent was to contract only with union members under an "owner-operator system as outlined in the schedules attached hereto entitled 'Agreement of Sale,' 'Lease of Equipment Agreement,' [and] 'Rate Schedule'. . ..' The contract between the Respondent and the Union further provided: This agreement shall be in force until August 15, 1948, when the parties hereto shall again meet to determine whether or not the continuance of the owner-operator arrangement is satisfactory to the Union. If the lease ar- rangement is not considered satisfactory by the Union, then the parties hereto agree to negotiate a wage contract which does not have any reference to an owner-operator and lease agreement. By their terms, the prescribed "Agreement of Sale" and "Lease of Equipment Agreement" (which will be referred to as the sale agreement and the lease agree- ment, respectively) were mutually dependent and were to be simultaneously executed by the Respondent and the owner-operator. Laying aside for the moment certain important provisions governing the details of the relationship between the Respondent and the owner-operator, the general substance of these two agreements may be simply stated. In the sale agreement, the Respondent agreed to sell an automobile tractor to the owner-operator, for a cash down pay- ment of $200 and the owner-operator's promise to pay the balance of the price at a stated mileage rate out of his earnings from the Respondent under the lease agreement. By the lease agreement, which extended from year to year subject to termination at any time by either party on 10 days' written notice, the owner- operator agreed to lease the tractor to the Respondent for use with a trailer supplied by the Respondent, and to maintain and operate the tractor at his own expense, in return for a stated rate of compensation by the mile. All of the Respondent's operations from its Raritan terminal have been con- ducted under the "owner-operator" or "lease" system. By the end of June, there were approximately 28 owner-operators. In some instances, they executed the sale and lease agreements before going to work. But, because a sufficient number of forms of these contracts had not been prepared, other owner-operators engaged by the Respondent, including James Salinger, began work after making the cash NU-CAR CARRIERS, INC. 81 down payment, receiving a new tractor, orally assenting to the terms of the agreements, and promising to sign them when they became available. The detailed provisions of the sale and lease agreements, which thus govern the use of the tractors and the relationship between the Respondent and each of its drivers or owner-operators, are clear and definite. The tractor is to be used solely "in handling business for the account of . . . the Company."' under the "exclusive and direct supervision and control of the Company." 8 and "only by [the owner-operator] or his duly designated agents or drivers." With respect to the services of the owner-operator which are thus to be supplied with the tractor, the lease agreement further provides that the owner-operator "will work exclusively and loyally for the company and [will be] subject to call by Company for the rendering of service with equipment at all times."' Other terms of the agreements provide (1) that title to the tractor shall remain in the Respondent until the full purchase price has been paid; e (2) that there is to be "no advertising or lettering [on the tractor] other than that required by law or by the Company" ; 7 (3) that the owner-operators shall "obtain gas, oil, tires, parts and other maintenance at the Company garage" at a reasonable cost;8 (4) that the owner-operators shall charge all "road purchases" against the Re- spondent and submit invoices to the Respondent "for deduction from the [owner- operator's] equipment rental compensation",0 (5) that "the withholding of such invoices [by the owner-operator] shall be sufficient grounds for company to request termination of this agreement"; 10 (6) that, in any event, the agreements may be terminated without reason by either party on 10 days notice," and by the Respondent if the owner-operator "does not operate in harmony with and to the best interests of all persons or firms connected with the automotive and/or automotive transporting industry with whom [the owner-operator] has con- tact"; 32 and (7) that, upon termination of the agreements, "the Company shall have the option of buying the tractor . .. at the average 'as is' value as appraised by three competent persons acceptable to both Buyer and Company." 13 It is undisputed that, in accordance with these provisions of the agreements. The Respondent in practice has restricted the use of the tractors to its business ; that it has insisted upon the storage, maintenance, repair, and fueling of the tractors at its terminal except when made impossible by absences of the tractors on road trips for the Respondent ; and that in three out of five eases as to which testimony was given, it has exercised its option to retain the tractors upon termi- nation of sale and lease agreements." The Respondent has thus exercised to 2 Article VII B of the lease agreement. 3 Article III of the lease agreement. 4 Article III of the lease agreement. 8 Article IV of the lease agreement. 6 Article VII B of the lease agreepent. 7 Article III of the lease agreement. 8 Article VIII of the lease agreement. 8 Article VIII of the lease agreement. to Article VIII of the lease agreement. 11 Article XII of the lease agreement. 12 Article VII of the sale agreement. 13 Article X of the lease agreement. 14 On terminating its agreements with Owner-operators Salinger, Lynch, and McCart, the Respondent recaptured the tractors under the lease agreement. On termination of its agreements with Owner-operators Wood and Burke, however, the Respondent elected to permit the retiring owner-operator to purchase the tractor on payment of the balance of the price. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the fullest extent its contractual rights which permitted it to deal with the tractors as if it owned them absolutely. As a result, there has been left to the owner-operators no such substantial or beneficial interest in the tractors as might indicate that they are independently engaged in their own businesses with their own equipment. The Respondent's argument to the contrary is, therefore, without merit. It is true that the Respondent, although it obviously had the right to do so, did not in practice exercise its control over the actions of the owner-operators to the extent of prescribing their routes or even of fixing times for them to report for work or their hours of work. However, the substantial extent to which the Respondent did exercise its. contractual right to supervise and control the owner- operators is demonstrated by its maintenance and use of a "safety patrol car," by an undisputed statement made by Clarence Hopkins, the Respondent's original personnel and safety director at the Raritan terminal, to the owner-operators that he would be "checking up" on them on the roads,18 and by a later warning of termination to one operator and summary terminations of other operators, based upon the reports and action either of Bruce Edwards, who was the Respond- ent's safety and personnel director at its home terminal in Chester, Pennsylvania, or of Tom Kenney, who succeeded Hopkins in the Raritan area. The uncontradicted evidence concerning this warning and these terminations indicates quite clearly that the Respondent maintained as careful a watch over the driving and conduct of the owner-operators as circumstances permitted, and acted quickly to terminate the operators when it thought they were acting improperly. In a memorandum to Owner-operator Wood, Personnel and Safety Director Edwards informed Wood that he had been "observed" traveling at excessive speed and using his turn signal in passing other cars, and then gave Wood a "first and final warning" that he would be terminated if he continued his speeding. Owner-operator Hoffer was given written notice of the termi- nation of his agreements with the Respondent and of the Respondent's intention to retain his tractor, because Kenney had overheard him use foul language to the Respondent's Chester dispatcher in objecting to an assignment of a split return load.18 At the time, Kenney, in asking Hoffer to apologize, told him, "You know we could have you leave the truck here [in Chester] and go home by train." Owner-operator Lynch's agreements with the Respondent were also terminated and his tractor recaptured by the Respondent because,' after an accident, the Respondent believed him to be "accident prone." In the final example, Owner-operator McCart was also terminated the day after Kenney, in the course of his patrol, saw McCart's brother riding with him on the tractor in violation both of the lease agreement and the regulations of the Interstate Commerce Commission. On this occasion, Kenney stopped McCart and when McCart at first refused to have his brother leave the tractor, Kenney demanded that McCart himself leave the truck and the keys with Kenney and threatened to enforce his demand with the assistance of the State police. 16 This finding is made upon the uncontradicted testimony of Owner-operator McCart. None of the owner-operators were able to testify, and Hopkins specifically denied, that he had actually patrolled the roads at any time during the short period from April to the end of July 1948, while he was the Respondent's personnel and safety director. Although no finding is therefore made that Hopkins patrolled the roads in the Raritan area, it appears clear, as is hereinafter found , that Tom Kenney , his successor, did patrol the roads and made reports concerning the conduct of the owner-operators upon which the Respondent terminated several of the owner -operators. 36 The Respondent later rescinded its termination of Hoffer. NU-CAR CARRIERS, INC. 83 In their briefs, the General Counsel and the Respondent agree, as the Board has held," that persons performing any work or rendering any services, are employees and not independent contractors, if the party engaging them has the right to supervise and control them in the manner and details of their perform- ance. Of course, such a right is created only by the express or implied agree- ment of the parties involved. In the cases in which the Board has had occasion to apply this conventional, common law test of the "right to control," " there were no specific, detailed agreements between the parties (such as there is in the present case), concerning the right or the absence of a right on the part of the one party to supervise and control the others. In order to determine the existence or nonexistence of such a right the Board was therefore compelled to examine the intended relationship in the light of these circumstances which would indicate the understanding or implied agreement of the parties as to control, including the extent to which control or supervision was in fact being exercised. However, from the Board's discussion of the problem in these deci- sions, it seems clear, as the General Counsel has well expressed it in his brief, "that it is not the fact of actual interference or exercise of control by the employer but the existence of the right or authority to interfere or control which makes one a servant rather than an independent contractor." " The undersigned finds that, under the sale and lease agreements, the Respond- ent has such a clearly expressed and complete right to control and supervise the conduct of the owner-operators and their use of the tractors for the Respondent's exclusive benefit, as to constitute the owner-operators "employees" of the Respondent and not "independent contractors" within the meaning of Section 2 (3) of the Act. While, for the reasons already stated, it was not necessary to this conclusion that it be shown that this existing, clear right of control has been actually exercised, the undersigned is of the opinion, from the evidence discussed, that the Respondent's right of control and supervision under the provisions of the agreements, was also in fact substantially exercised. B. The termination of Salinger; interference, restraint, and coercion As has already been noted, the Respondent had engaged approximately 28 owner-operators by the end of June 1948. Six of these owner-operators (includ- ing James L. Salinger who was hired on June 12), came to the Respondent directly from jobs as truck drivers with the Anchor Motor Freight Company, which will be referred to as Anchor.20 Anchor was a contract carrier engaged in the transportation of new automobiles by trailer from the General Motors auto- mobile plant at nearby Linden, New Jersey. An affiliate of Anchor also operates in Framingham, Massachusetts. Anchor's drivers at Linden were represented by the Union under a contract with Anchor at the time of Salinger's employ- ment there. Salinger was a committeeman of the Union at Anchor and, in that capacity handled grievances with the other members of the committee and Patrick ("Packy") Reilly, the Union's business agent. According to Driver James Wood, who preceded Salinger in his change from Anchor to the Respondent, Salinger "Steinberg & Company, 78 NLRB 211, 220-221; San Marcos Telephone Co., 81 NLRB Z14; Standard Oil Co., 81 NLRB 1381 ; Spickclmier Co., 83 NLRB 452 ; Roy C. Martin .Lumber Company, Inc., 83 NLRB 691. is See cases cited in preceding footnote. 30 See Steinberg & Company, 7S NLRB 211, 222-223. 20 Salinger, Woods, Vaniska, Hoffer, Luce , and Lynch. 882191-51-7 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was a "strong" committeeman whom the other drivers habitually consulted and asked for advice. According to Salinger, as an Anchor committeeman, he had a sharp disagree- ment with Business Agent Reilly in March 1948. Salinger testified that at a meeting with Union President Kelly and the Union's attorney, Reilly told the Union's committee, including Salinger, that he wanted to "discuss the Nu-Car situation that was going into effect at Metuchen [Raritan]," and asked them what they knew of the owner-operator system under a contract between Team- sters' Local 496 si and the University Overland Company, an affiliate of the Respondent, which operated in Somerville, Massachusetts. According to Salinger, after the committee gave an unfavorable report, Reilly said that he had told the Somerville people, who had suggested their owner-operator system for the Respondent's Raritan terminal, that "he had a swell contract at Anchor Motor Freight and he would like to see them write the same kind of contract" for the Respondent's Raritan terminal. Salinger testified that, although he agreed with the committee's criticism of the owner-operator system, he informed Reilly very bluntly that he had been instructed by the Anchor drivers to tell Reilly that the Anchor contract, too, was highly unsatisfactory, and that after some discussion principally about the Anchor contract seniority system, Reilly suggested (and Salinger agreed) that Salinger should present these grievances or criticisms of the Anchor contract to Anchor's manager, Bart. Fox. Salinger further testified that at the ensuing meeting with Fox, which the committee attended with Reilly, the "grievances" were first discussed and that Fox then said that Anchor was having a little bit of difficulty with the men he had sent to a new operation of Anchor in Framingham, Massachusetts, under a contract with a Framingham local. Upon the comment of one of the committee- men that Anchor signed the contract "before the men went to work," Salinger according to his testimony laughed and said to both Fox and Reilly, "Well, that is the first time I ever heard management chasing after a union to sign a contract before they hired any men. It is illegal." Salinger further testified that after they left Fox, Reilly started a discussion "about what they [the Union] could do and what they couldn't do in Framingham"; that Salinger again told him, "Look, Mr. Reilly, I never heard of a company chasing after a union to sign a contract. In the first place, it will be throwed out. It is illegal" ; and that Reilly angrily replied, "Well, look, Salinger, I know all about you. I have known all about your past union activities. I know what you are talking about." Reilly, in his testimony, denied ever having had any arguments with Salinger, or having been criticized by Salinger for his conduct as a union official, or having any recollection of any meeting with Salinger at which Anchor's Framingham contract was discussed. The undersigned however credits Salinger's testimony. On June 8, 1948, Salinger, fearing eventual layoff by Anchor due to a loss of over-the-road business,. visited the Respondent's Raritan terminal and was intro- duced to Personnel Director Hopkins and Terminal Manager Dexter Lisbon by Woods, who was by that time working for the Respondent. Salinger told Hopkins and Lisbon that he was an Anchor driver and was interested in "lessee work" with the Respondent and Hopkins explained the Respondent's owner-operator systevn and the terms under which the owner-operators worked. One or two days later, Salinger returned to Hopkins with a union referral card which Hopkins said lie would need. Finally, on June 12, Salinger again visited Hopkins and Lishon, made a payment of $200 on a tractor; received a new tractor, orally 21 Not to be confused with Local 469, the Union which represented the Respondent's and Anchor's drivers. NU-CAR CARRIERS, INC. 85 assented to the provisions of the sale and lease agreements, agreed to sign these contracts when forms became available, and began work for the Respondent. There is a conflict in the testimony as to whether Hopkins informed Salinger in their conversations between June 8 and June 12, that Union Business Agent "Packy" Reilly and Gene Reilly, his brother and assistant, were opposed to the Respondent's engagement of Salinger as an owner-operator, and that Hopkins had told "Packy" Reilly that Salinger would be "fired" if he tried to change the Respondent's "lessee system." In spite of denials by Hopkins and Lishon, the undersigned credits Salinger's detailed, affirmative testimony on this disputed subject, to the effect (1) that on June 8, Hopkins told Salinger that the owner- operator arrangement was on trial for 4 months under the Union's contract with the Respondent, and then added, "I would like to keep lease here and I know you fellows will be more than willing to go along with me"; (2) that after asking Salinger in their second conversation about his "relations with the Union" and learning that Salinger was a committeeman, Hopkins said, "We got a call from the Union, from Mr. Gene Reilly, and he said not to hire you, that you was a union agitator and [you'd] blow the place tip"; (3) that Hopkins and Lishon nevertheless assured Salinger on this occasion that they would "straighten out" the difficulty because of Salinger's "perfect recommendation" from Anchor, and Hopkins told Salinger not to "pull" his scheduled load for Anchor the next morning but to "just sit tight and wait until they called [him]" ; (4) that upon Salinger's telephoning Hopkins the next day after pulling his Anchor load in disregard of Hopkins' suggestion, Hopkins first said, "Jimmy, the Union called us up this morning and told us you was fired up at Anchor Motor Freight. Do you remember that load that I spoke of last night?" and that when Salinger said he had "pulled" the load, Hopkins continued: "Jimmy, that is fine. That cinches the case. You are coming to work for us and.I will have everything set up as fast as possible . . . Just sit tight" ; (5) that, when Salinger telephoned him again later that day, Hopkins told him, "Everything is set from the top man down. Be down here in the morning with your $200.00. We will put you right to work" ; and (6) that when Salinger was engaged the following morning, June 12, Hopkins said to him, "Now, Jimmy, Mr. Packy Reilly called mQ up this morn- ing and told me that if we hired you and had any trouble with you in trying to break up this lease system, . . . that he would go to [Manager Dester Lishon's father who operated University Overland in Somerville, Massachusetts] and [would] tell him that he told [us] not to hire [you] and it was [our] own fault. I told Packy Reilly if you tried to change our system here, or cause us any trouble, or break up this lease system, I will fire you right out the front door." According to. the credible testimony of a number of the Respondent's owner- operators, there was considerable discussion among them in the Respondent's yard and in places where they frequently happened to meet, such as diners along the road, concerning the merits of the owner-operator system and the advisability or inadvisability of the Union's agreeing to a continuance of the arrangement after the 4-month trial period under the Union's contract with the Respondent. These discussions began before Salinger was hired and continued at least until sometime in August when, at a meeting between the Respondent's and the Union's representatives and a committee of the owner-operators, it was agreed to continue the system with some modification of rates. According to his credible testimony, Salinger engaged in many of these dis- cussions with other drivers concerning the owner-operator system although it appears from the testimony that he was not present at the most important meet- ing they held in the yard-a meeting in the latter part of June when the men sent 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Owner-operators Wood and-Hoffer to the union hall to determine the truth of a rumor that the Union had already agreed to a continuance of the owner-operator system. According to the further credible testimony of Salinger and several other owner-operators, which is denied by Hopkins, Hopkins spoke to them on a number of occasions about this apparent activity in opposition to the "lease sys- tem." In accordance with this credible testimony, the undersigned finds: (1) That whenever Hopkins met Salinger in the Respondent's yard, he would ask Salinger "not to try to change lease, but if anything, talk lease if the men asked [him] about it"; (2) that on the last occasion that Salinger saw Hopkins, Hop- kins said, "Jimmy, we are having some trouble around here. It don't amount to a whole lot, but I am warning you to keep your mouth shut" ; Y^. (3) that, on the day following Wood's and Hoffer's visit to the union hall, Hopkins asked Wood what right he had to go to the union hall and added, "Wood, I believe you are an agitator. I believe you are going to cause me a lot of trouble. If you don't watch your step, you will be fired. I made a very big mistake when I hired all you Anchor fellows" ; (4) that on the same day Hopkins asked Owner-operator Hoffer, who was also an ex-Anchor driver and who had accompanied Wood on the visit to the union hall, what the trouble was and whether Hoffer was a spokesman for the owner-operators ; and (5) that, also on the same day, Hopkins asked Owner-operator De Rasmi what he had been doing at the union hall and, when De Rasmi said he had not been there, Hopkins said, "You are young; you look like a smart fellow. Play ball with me and we will take care of you." On July 7, 1948, Salinger was called to the Respondent's office by Assistant Man- ager Steen. According to Salinger, Steen told him merely that, as a probationary driver, he was being discharged on the instructions of Personnel Director Ed- wards of the Respondent's home office because of a bad previous employment record, and returned Salinger's $200. Steen and Manager Lishon testified, how- ever, and Salinger denied, that Steen showed Salinger seven bills of lading cov- ering car shipments handled by Salinger, upon which' the receipting consignees had made notations of such damage to the transported cars as might have occurred in transit; that Salinger objected to the criticism and stated that, in any event, the damage was covered by insurance ; that Steen then produced the forms of sale and lease agreements with the Respondent, which Salinger had originally agreed to execute, and asked Salinger to sign them ; and that Salinger not only refused to sign these agreements, but insisted upon a refund of his $200. Lisbon further testified that it was not the Respondent's intention to terminate Salinger even though.Steen criticized him for cargo damage. Thus, according to Steen's and Lishon's testimony, Salinger quit, and his relationship with the Re- spondent was not terminated by the Respondent. However, according to credible evidence, in part elicited from Steen himself, Steen did not offer this explanation in subsequently speaking to various persons about Salinger's separation, but said on three occasions that Salinger had been discharged. Thus, the undersigned finds upon the testimony of Owner-operator zz Salinger fixed the time of this incident as July 3, which was a Friday . In his denial, Hopkins testified ( and was corroborated by Lishon ) that he had left the Raritan terminal on Friday, June 26, to prepare for a rodeo in Norfolk, Virginia, on July 5; and that he was on vacation and did not return to the Raritan terminal until July 19, which was, of course, 12 days after Salinger was terminated. Thus, while Salinger fixes Hopkins' last day at Raritan as being Friday, July 3, both Hopkins and Lishon say it was Friday, June 26. In the opinion of the undersigned , this difference of 1 week between the testi- mony of different witnesses is of no significance . The undersigned finds, in accordance with Salinger's testimony, that Hopkins made the remark attributed to him by Salinger on the last day that Hopkins worked at Raritan before his vacation , and that whether it was June 26 or July 3 Is immaterial. NU-CAR CARRIERS, INC. 87 Luce (which the undersigned credits in spite of Steen's denial), that Steen, in the most damaging of these statements, told Luce that Salinger was fired because he was an agitator and that Luce would also be fired if he did not keep his mouth shut. Then, too, according to the testimony of Owner-operators Lynch, Burke, and McCart (which the undersigned finds credible although denied by Steen, Lishon, and Business Agent Reilly), Steen told the Union's officials and a com- mittee of the owner-operators at a meeting in August 1948, that Salinger had been discharged because of his failure to "shape up" during his 30-day probationary period.23 Finally, Steen himself admitted, when pressed on examination by the General Counsel at the hearing, that he had told the General Counsel's representa- tive in February 1949, during the investigation of Salinger's charges before the complaint was issued, that "somebody in the Company" had terminated Salinger during his probationary period. Upon Salinger's testimony and the foregoing testimony as to Steen's statements to Luce, the General Counsel's representative, and the Union's officials, the under- signed finds that Steen discharged Salinger on July 7, 1948, that Salinger was not asked and did not refuse to sign the agreements with the Respondent, and that Salinger did not quit. Upon Lishon's testimony, the undersigned further finds that the Respondent did not discharge nor intend to discharge Salinger because of cargo damage. In the opinion of the undersigned, the only reason for the discharge which the record suggests, is the Respondent's belief that Salinger was active in the owner-operators' opposition to the "lease system" which was then on trial under the Union's and the Respondent's contract. Moreover, that this was in fact the reason for the discharge is clear upon the following brief examination and appraisal of the chain of facts already found. In March 1948, Salinger, as a union committeeman at Anchor had openly criticized and angered Reilly, the Union's business agent because Reilly was contemplating the execution of an owner-operator contract with the Respondent before any drivers were hired. Shortly thereafter, the Union did execute its owner-operator contract with the Respondent although no drivers had yet been engaged. When Salinger applied to the Respondent for employment as an owner- operator on June 8, Personnel Director Hopkins, apparently knowing little about Salinger at that time, encouraged his application and told him that the "lease system" was on trial, that the Respondent wanted to keep the system, and that it expected its operators to agree to its retention. After receiving Salinger's appli- cation, Hopkins learned that he was a union committeeman and then informed him that the Union objected to his being engaged because he was an "agitator" and would "blow the place up." Still encouraging Salinger's hope of immediate placement with the Respondent, however, Hopkins suggested that he await a call to work and stop "pulling" his scheduled loads for Anchor. When Salinger called Hopkins the next day, Hopkins significantly assumed that, following Hopkins' suggestion, Salinger had not "pulled" his regular Anchor load and therefore had been discharged, thus strengthening the Union's objection to his hire by the Respondent. But when informed by Salinger that this was not the case, Hopkins hired him on June 12, telling him, however, that Business Agent Reilly had renewed the Union's objections to his hire upon the ground that be would try to upset the "lease system" and that Hopkins had assured Reilly that if Salinger made such an attempt, he would be discharged. Upon the facts reviewed to this point, the undersigned finds that the Respondent, fearing Salinger's likely lead- ership of opposition to the "lease system" from the outset, tried to avoid hiring 23 Steen, Lishon , and Reilly testified that, although Salinger's case was mentioned at this meeting, it was not discussed because Salinger was not present. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him in spite of his obvious qualifications and its own need for, drivers, by raising alleged objections from the Union, and then only after it had unsuccessfully pursued this course as far as it gracefully could, hired him and warned him that he would be discharged if he attempted to have the "lease system" set aside. After Salinger was hired, Hopkins repeated this warning whenever they met by telling Salinger "not to try to change 'lease,'" but to talk in favor of the system and, on one occasion, "to keep his mouth shut." At the same time, Hopkins also attempted to suppress the opposition of the other owner-operators to the "lease system" by scolding and questioning Wood, Hoffer, and De Rasmi because he believed that, as a result of a meeting of the operators in the yard, all three of them had gone to the union hall to have the system abolished, by threatening to discharge Wood, and by telling De Rasmi that, he "played ball" with Hopkins, he would be "taken care of." Finally Salinger was discharged by Steen, and a few days liter, Steen told Luce that Salinger had been fired because he was an agitator and that Luce, too, would be discharged if he did not keep his mouth shut. Upon the foregoing consideration of the facts in the case, the undersigned finds that the Respondent discharged Salinger because it believed that he was engaged with his fellow operators in an attempt to solidify their sentiment against the "lease system" and to induce the Union and the Respondent to end it after the 4-month trial provided by their contract. The Respondent argues in substance that, even if it thus interfered with and suppressed these efforts of its operators, it cannot be held to have committed an unfair labor practice (1) because the operators' activities were directed against the position taken by the Union which represented them and not against the Respondent; Yi and (2) also because the Respondent's suppression of these activities, opposed as they were to the Union's formal position, involved no interference either with the operators' free choice of the Union as their repre- sentative, or with the freedom of the Union in its activity as such representative.' These arguments of the Respondent are without merit. Under the contract between the Respondent and the Union, the "lease system" was on trial for only 4 months. At the end of this period the Union had the right to have the Respondent set aside the system in the interest of the owner-operators whom the Union represented and presumably intended to consult in the matter. The activities of the owner-operators, with which Salinger was identified, thus had as their ultimate objective the change by the Respondent, contrary to its ex- pressed desire, of the existing terms and conditions of employment under the "lease system." Consequently, the Respondent was not (as it wishes the Board to believe) a disinterested bystander to discussions between the Union and the operators, but a directly and intensely interested adversary of those of the operators who wanted the "lease system" abolished. But the fundamental error in the Respondent's arguments lies in its com- pletely unwarranted conception of the narrow scope of the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection," which is guaranteed to employees by Section 7 of the Act. According to the Respondent's arguments, once employees are actively repre- 24 Counsel for the Respondent made this argument at the hearing. 96 This argument is made by the Respondent in its brief. The undersigned finds it unnecessary to determine the validity of the Respondent's assumption in this argument that the Union is the exclusive bargaining representative of the Respondent 's owner- operators within the meaning of section 9 (a) of the Act. NU-CAR CARRIERS, INC. 89 sented by a labor organization, their concerted activities must conform to their representative's desires or forfeit the protection of the Act against interference by the employer. Certainly, no such limitation of employee-freedom was intended by the Act. On the contrary, the very concept of employee-representation, upon which, the Act is based, makes the representative responsible and subject to the will of the employees it represents rather than vice versa. It is thus clearly the right of employees as a protected "concerted activity" under the Act, to discuss and formulate their position as a group and then to take such steps as may be necessary to make the labor organization which acts as their repre- sentative, responsive to their desires. For an employer to interfere with this process, as did the Respondent in the present case, is a violation of his employees' right to engage in the "concerted activities" guaranteed by the Act and, therefore, an unfair labor practice within the meaning of Section S (a) (1). What has just been said of the Respondent's interference with the rights of its operators as employees to engage in concerted activities, applies not only to Salinger's discharge but also to the clear acts of interference with respect to these same activities of the other operators. Thus, the undersigned finds that, in violation of Section S (a) (1) of the Act, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act (1) by discharging and thereby discriminating against James Leslie Salinger because it believed that he engaged in "concerted activities for the purpose of collective bargaining or other mutual aid or protection"; (2) by Hopkins' warning Salinger, Wood, Hoffer, and De Rasmi, not to engage in opposition to the "lease system" ; (3) by Hopkins' questioning Wood, Hoffer, and De Rasmi as to their activities in this respect; (4) by Hopkins' threatening to discharge Wood if he caused trouble; (5) by Hopkins' promising to "take care of" De Rasmi, whom he charged with participation in the operators' ac- tivities, if De Rasmi "played ball" with him; and (6) by Steen's notifying Luce that Salinger had been discharged because he engaged in these "concerted activities" and warning Luce that he, too, would be discharged if he did not keep his mouth shut. The undersigned is of the opinion that the Respondent's discharge of Salinger because it believed that lie opposed the "lease system," also discouraged mem- bership in the Union, notwithstanding the fact that the Union had formerly approved the "lease system." As has already been stated, the process of collec- tive bargaining through representatives assumes that the representatives will be responsive to, and bargain with employers in accordance with, the desires of the employees represented. For an employer to stifle his employees' attempts to direct their representative constitutes a deprivation of one of their most iin- portant rights incidental to their membership in the representative labor organi- zation. The undersigned, therefore, concludes that by discharging James Leslie Salinger, the Respondent, in violation of Section S (a) (3) of the Act dis- criminated against him in regard to his hire and tenure of employment, thereby discouraging membership in the Union. IV. TIIE EFFECT OF TIIE 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 described 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. 0 90 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Since it has been found that the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, the undersigned will recommend that it cease and desist from and take certain affirmative action in order to effect the policies of the Act. The undersigned has found that the Respondent discriminated against James Leslie Salinger in regard to his hird and tenure of employment, thereby dis- couraging membership in the Union, a labor organization, by discharging Salinger and refusing him reinstatement. It will be recommended that the Respondent offer James Leslie Salinger immediate and full reinstatement to his former job or a substantially equivalent position '21 without prejudice to his seniority or other rights and privileges; and that the Respondent also make the said James Leslie Salinger whole for any loss of earnings suffered by him by reason of the Respondent's discrimination against him, by payment to him of a sum of money equal to that which he would normally have earned from the Respondent from the date of the discrimination against him, July 7, 194S, to the date of the offer of reinstatement, less his net earnings during that period.27 Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUsIONs OF LAW 1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Relpers of America, Local Union No. 469, is a labor organization Within the meaning of Section 2 (5) of the Act. 2. The Respondent's "owner-operators" were and are "employees" of the Re- spondent and not "independent contractors" within the meaning of Section 2 (3) of the Act. 3. By discriminating in regard to the hire and tenure of employment of James Leslie Salinger, and thereby discouraging membership in International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 469, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (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 respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (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. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed hereby recommends that the Respondent, Nu-Car Carriers, Inc., of Raritan, New Jersey, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 469, or in any other labor organization of its employees, by discriminatorily discharg• 26 See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 837. 27 Crossett Lumber Co., 8 NLRB 440, 497-498. 0 NU-CAR CARRIERS, INC. 91 ing employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment ; (b) In any other manner interfering with, restraining or coercing its em- ployees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local Union No. 469, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the undersigned finds will ef- fectuate the policies of the Act : (a) Offer to James Leslie Salinger immediate and full reinstatement to his former position or to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination of the Respondent against him by payment to him of a sum of money equal to that which he normally would have earned from the Respondent from the date of the Re- spondent's discrimination against him to the date of the offer of reinstatement, less his net earnings during the period ; (b) Post at its terminal in Raritan, New Jersey, copies of the notice attached hereto and marked Appendix A. Copies of said notice, to be furnished by the Regional Director of the Fourth Region, shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof, and main- tained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (c) Notify the Regional Director for the Fourth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report, what steps the Respondent has taken to comply with the foregoing recommendations. It is further recommended that, unless the Respondent shall, within ten (10) days from the receipt of this Intermediate Report, notify the Regional Director for the Fourth Region in writing that it will comply with the foregoing recom- mendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Washington, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and Recommended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Im- mediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the por- tions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced . Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.89. As further provided in said Section 203.46 should any party DECISIONS OF NATIONAL LABOR RELATIONS BOARI) desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.45 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 31st day of August 1949. WILLIAM F. SCHARNIlLOW, Trial Ewa diner. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL UNION No. 469, or any other labor organization, to bargain collectively through repre- ^sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to the employee named below immediate and full reinstate- ment to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. James Leslie Salinger All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. NU-CAR CARRIERS, INC. Employer. By --------------------------- (Representative) (Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.