Charman Service Corp.

534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in, or activities on behalf of , INTER- NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLE- MENT WORKERS' OF AMERICA, CIO , and its AMALGAMATED LOCAL 842 , or in any other labor organization, by discriminating in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations,.to join or assist any 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, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8 (a) (3) of the Act. " WE WILL offer to the following named employees immediate and full rein- statement to their former or substantially equivalent positions without preju- dice to any seniority or other rights and privileges enjoyed and make them whole for any loss of pay suffered as a result of the discrimination against them : Harold N. Aycoth Howard I. Bitner Leo Bober ( Berkeley R. C. Douglas Charles W. Fraley Marvin Gay Laurel J. Griffith Ray Holland Jesse A. Ingram Springs) John T. Ingram Chester C. Jones James E. Kline Thomas B. Kunkleman George A. Kyne Oliver W. Mowen David A. Myers Joseph P. Rogers Samuel J. Rowland Dated -------------------- VIOTOR PRODUCTS CORPORATION, Employer. By ---------------------------------- (Representative ) (Title) This notice mint remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. CHARMAN SERVICE CORPORATION and FRANCIS X. FLORIO . Case No. 2-CA-941. June 6, 1952 Decision and Order On December 6, 1951 Trial Examiner Arthur Leff issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. 99 NLRB No. 95. CHARMAN SERVICE CORPORATION 535 The Board 1 has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Charman Service Corpora- tion, New York, New Yerk, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in any labor organization of its employees by discriminatorily discharging employees or denying them reinstatement or reemployment, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (h) 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, to engage in concerted activi- ties for the purposes of collective bargaining or other mutual. aid or protection, or to refrain from any and all such activities, except to the extent that such rights 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 Francis X. Florio immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amount of back pay due. (c) Post at its garages and/or dispatching offices where employees are normally dispatched for work copies of the notice attached to the ' 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, Murdock, and Peterson]. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report marked "Appendix A." 2 Copies of such notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, in con- spicuous places, including all places where notices to employees are customarily posted, and maintained by it for sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within ten (10) days from the date of this Order, what steps,the Respondent has taken to comply herewith. Intermediate Report STATEMENT OF THE CASE A charge having been duly filed by Francis X. Florio, a complaint and notice of hearing thereon having been issued and served by the General Counsel, and an answer having been filed by the Respondent, Charman Service Corporation, a hearing upon due notice was held at New York City before Arthur Leff, the undersigned duly designated Trial Examiner, on September 17, 19, 20, and 21, 1951. The complaint alleged in substance, and the answer denied, that the Respondent engaged 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, 61 Stat. 136, herein called the Act, by discharging Francis X. Florio on or about April 11, 1949, and refusing thereafter to reinstate or re- employ him because of his union membership and his participation in a strike. The Respondent was represented at the hearing by counsel and was afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence on the issues, to argue orally upon the record, and to file briefs and pro- posed findings and conclusions. At the conclusion of the hearing, decision was reserved on a motion of the Respondent to dismiss the complaint for insufficiency of proof. ' That motion is now disposed of in accordance with the findings of fact and conclusions of law made below. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a New York corporation with its principal office and place of business in New York City where it is engaged in the operation of a fleet of 10 taxicabs and employs approximately 30 employees. Annually, the Respondent purchases or leases taxicabs, tires, and other materials, having a value in excess of $15,000, which are shipped to the Respondent's New York garage from points outside the State of New York. In addition, the Respondent annually purchases or leases, from suppliers located in the State of New York, tires, taxicab parts, 2 This notice, however, shall be, and it hereby is, amended by striking from the first paragraph thereof the words "The Recommendations of a Trial Examiner " and substitut- ing in lieu thereof the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." CHARMAN SERVICE CORPORATION 537 gasoline, oil, and other materials, valued in excess of $50,000, all of which are shipped to-the Respondent's New York State suppliers from points outside the State of New York. The Respondent's annual revenue from the transportation of passengers is in excess of $130;000. Of this revenue, more than 6 percent is derived from the transportation of passengers to and from New York terminals of interstate railroads, ferries, bus lines, airlines, steamship lines, and other common carriers engaged in the transportation of passengers between such terminals located within the State of New York and States of the United States other than the State of New York and foreign countries. On these facts I find that the Respondent's operations are an essential link in the service performed by the afore-mentioned instrumentalities of commerce. See Skyview Transporta- tion Co, 92 NLRB 1664. It is not disputed by the Respondent, and it is found, that the Respondent is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this case. II. THE LABOR ORGANIZATION INVOLVED Taxi Workers Organizing Committee, United Mine Workers of America, other- wise known as United Construction Workers affiliated with the United Mine Workers of America, Local 35, herein referred to as the Union, is a labor organi- zation within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The issue There is a single issue in this case. Francis X. Florio, an employee of the Respondent, participated along with others in a city-wide strike against taxicab operators, extending from April 1 to April 8, 1949. When he reported for work after the strike, on April 11, 1949, the Respondent notified him that he had been discharged and refused him reinstatement or reemployment. The complaint alleges, and the Respondent denies, that Florio was illegally discriminated against because of his union membership and strike activities. B. Florio's background of union activity and the condition on which he was employed Before entering the Respondent's employ Florio had long been identified with union organizational work among taxicab drivers in New York City. In 1937 he was one of the volunteer organizers for the CIO Taxi Workers Organizing Committee. Later that year, after the CIO had assigned that labor organization to the jurisdiction of Local 100 of the Transport Workers Union, Florio was elected to the Local's executive board. During the next 2 years he served Local 100 as a full-time paid organizer and business representative with regard to matters affecting employees of the Parmelee System. About the beginning of 1940, Florio quit Local 100, operated his own cab for some 6 months, and then left the industry entirely for a period of 2 years, returning as an employee in 1942. In 1943 he was again elected to the executive board of the Taxi Division of Local 100. In 1945, after the Taxi Division was granted a separate charter by the Transport Workers Union and became known as Local 150, Florio was elected president of Local 150. Thereafter he continued in that office until 1947, when, following the merger of Local 150 with a number of independent labor organizations, a new local-called Local 300-was chartered by the Transport Workers Union. Florio was elected first vice president of Local 300. After an existence of only about 8 months, the charter of Local 300 was 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD withdrawn. At the same time Local 150 was reconstituted with its old set of officers, including Florio as president. Despite its formal, revival, however, Local 150 never again functioned as an active labor organization. Florio's history as an organizer and union official in the taxicab field was admittedly known to the Respondent. Until her temporary retirement from the taxicab industry in July 1942, Frances C. Lang, the Respondent's president and principal stockholder, had been one of the leading industry figures. Herself then the owner and operator of a large fleet of some 140 taxicabs, Mrs. Lang for some 5 years before her retirement had served as chairman of the board of the Radio Fleet Owners Association. The Association represented operators of approximately 1,900 taxicabs in matters of common interest to them, including those pertaining to labor relations. By virtue of Mrs. Lang's position in the industry, her attention had been drawn to Florio's organizational activities. Florio was hired by the Respondent in March 1948, some months after Local 150 had become a passive organization. He was interviewed for the job by Murray A. Lang, husband of Frances, and the Respondent's general manager. Lang informed Florio at the time that he would let Florio have the job, even though he knew Florio's history as a union organizer, but only on the condition that Florio would refrain from further union activities while in the Respondent's employ. Florio, who was then badly in need of work, offered no resistence to this condition' C. The capacity in which Florio was employed Like others in the taxicab industry, the Respondent has 3 classifications of employees. There is, first, the steady driver, who normally works 5 or 6 days a week and who regularly is assigned to the same taxicab unless it is unavailable because of repairs. There is, then, the steady extra, who works either on a part-time or on a full-time basis, filling in for the steady drivers on their stag- gered days off. The steady extra is distinguished from the steady driver in that he is not regularly assigned to the same cab, but, like the steady driver, is obliged to report on given days and in return is given an advance commitment for work on such days. And, finally, there is the extra extra, also known as the floating extra. He is a casual employee who is given work only when the others are unavailable, who reports at his pleasure and takes his chances, neither giving nor receiving an advance work commitment. All drivers, however classi- fied, are compensated in the same manner and at the same rate, on a commis- sion basis under which they retain each day 421/2 percent of their gross receipts less an appropriate adjustment for withholding taxes and the like. A 10-cab operation with 2 shifts, such as the Respondent's, normally will employ 20 steady drivers, 1 for each car on each shift, and about 7 or 8 steady extras. Florio was employed on the Respondent's night shift as a steady driver with a regular car assignment. D. Florio's union activities after his employment by the Respondent; the strike For some months after his employment by the Respondent, Florio did not himself participate in active organizational work in the taxicab field . He con- tinued, however, to maintain an interest in organizational developments, occa.- 1 The findings made in this paragraph are based upon Florio's credited testimony. Lang's version was different. According to him, it was Florio who volunteered informa- tion concerning his past union activities, and Florio who first propo'ed that the Respond- ent hire him on the condition mentioned. From, my observation of Florio while testify- ing and on the basis of his history, I find it difficult to believe that he would have been the one initially to propose a hiring arrangement in the nature of a "yellow-dog contract." CHARMAN SERVICE CORPORATION 539 sionally meeting with individuals and groups who shared his interest. In August 1948, after a conference with the leaders of the Taxi Workers Organizing Com- mittee of the United Mine Workers (herein called the Union), which in the meantime had made its appearance on the scene, Florio joined that organization, bringing with him what remained of the membership of Local 150 of the Transport Workers Union. At that time Florio was placed on the Union's advisory com- mittee, a capacity in which he continued to serve until the end of the strike. Thereafter Florio participated actively in organizational work, not confined to employees of his own employer, but extending generally to the city-wide campaign. Florio's interest in the Union was no secret to the Respondent. On one occa- sion in October 1948 Mrs. Lang accused Florio of attending union meetings during times when he should have been working, an accusation which, Florio says, had no basis in fact, although he did not bother to deny it at the time. The Respondent, however, continued Florio in its employ, notwithstanding the condi- tion upon which he had been hired. By March 1949, the Union's city-wide organizational campaign had reached a stage where the Union was ready for a test of strength. On March 14, 1949, it wrote New York City taxicab operators, including the Respondent, that it had been designated the city-wide collective bargaining representative for taxi drivers, and that it was prepared to commence contract negotiations at a stated ,time and place. The Respondent did not answer the Union's bargaining demand. Instead, it forwarded to each of its employees a form letter that had been drafted by an employers' association. The letter spoke disparagingly of the "Lewis Union" as one that had no place in and could only bring hardship upon the taxicab industry; stated that the Union had refused to establish its representa- tion claim through a Labor Board election ; and expressed a determination to continue operations "and not sit down with the Union because of a strike, no matter how long it takes." Unable to obtain recognition from the taxicab oper- ators, the Union called a general strike among all taxicab drivers in New York City. The strike began on April 1 and was officially terminated at 4 p. in. on April 8 ending in a total defeat for the Union. During the first several days of the strike, the Respondent's operations were completely shut down. Although the Respondent succeeded in getting some of its equipment on the streets in the latter half of the strike, it was not until April 8 that the full operation of its fleet on both shifts was restored. More than an active participant, Florio assumed a leadership role in the strike. When the strike began, he helped set up a picket line about the garage where the Respondent's cabs were housed. His activities, otherwise, extended beyond the Respondent's operations. As a general representative of the Union, he traveled throughout the city checking up on the effectiveness of the strike. In addition , as one of the strike leaders, he participated in meetings called by the mayor of the City of New York in an effort to effect a strike settlement. The Respondent's knowledge of Florio's position as more than a rank-and-file striker is reflected by the fact that on his only visit to the Respondent's garage after the picket line was set up, Florio was greeted by Nathan Hemley, the Respondent's dispatcher and a supervisory employee, with the words, "Hello, Union delegate." 2 D. The teatim.ony of Henry Wein In March and April 1949, Henry Wein was employed as a driver by one of the taxicab companies sharing the garage used by the Respondent. It was a practice 2 According to Florio's testimony, which is credited although denied by Hemley. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Wein, along with other employees, to prepare his records relating to his day's receipts in a garage office which was also used by the Respondent as a dispatch- ing booth. Wein had joined the strike when it began, but had returned to work a few days before its termination. Wein testified that on one occasion toward the end of the strike, while he was in the office preparing his records, there were also present Lang, Mrs. Lang, and Hemley, who were engaging in a discussion concerning who should and should not be given cars. In the course of the discussion Wein overheard either Lang of Hemley ask, "How about Florio?", and Mrs. Lang reply, "Oh, no, no, get rid of him. He is a good union man." Wein's testimony was specifically denied by Lang and Mrs. Lang, and gen- erally by Hemley who testified that he had never received any instructions from Mrs. Lang with regard to Florio. On direct examination Mrs. Lang testified that during the strike she had not been at the garage more than once ; that she never had any conversation with her husband and Hemley in the dispatch booth ; and that whatever business she had at the garage was invariably carried on at her private office elsewhere in the plant. However on cross-examination she contradicted herself and agreed that during the strike she might have been in the dispatch office speaking to Hemley and Lang. She also then admitted that she knew Wein, having seen him at the garage. And when asked by the General Counsel under what circumstances she had seen him, she replied, "I saw Mr. Wein in the garage that day you are speaking of." Lang, when examined on this point, admitted that on the afternoon the strike was settled he, Hemley, and Mrs. Lang had had a conversation at the place described by Wein. In resolving this conflict, I have taken into account that we have here the word of one against three. But credibility conflicts are not properly to be resolved merely on a quantitative basis ; for the qualitative factor is at least as important, and often more so. In this case, I was impressed by Wein as a witness. He was not himself interested in the outcome of the case, and although he knew Florio casually, does not appear ever to have been too close to him. His testimony was given in a forthright manner and remained unshaken under vigorous cross-examination by able counsel for the Respondent. On the other hand, both Lang and Mrs Lang were interested witnesses. In certain respect their testimony was mutually contradictory, and that of Mrs. Lang was at times self-contradictory, leaving the impression that they had something to conceal. Hemley, it is true, was also a disinterested witness at the time of the bearing. But much of his over-all testimony was evasive, self-contradictory, inconsistent with clearly established record facts and documentary evidence, and marked by evident hostility toward Florio. As a witness, he did not invite credence. On all the evidence I credit Wein and find that Mrs. Lang on the occasion in question made the remarks concerning Florio, substantially as attributed to her by Wein. F. The discharge of Florio and the Respondent's failure and refusal to reinstate him Florio's strike activities continued through Thursday, April 7, the day before the strike ended. By then, a substantial number of taxicabs were already rolling on the city streets, and it was becoming increasingly more apparent that the strike was crumbling. Nevertheless, at union meetings held that night, attended by Florio, it was voted to continue the strike. Upon arriving home late Thursday night; Florio found his wife had left the city to visit her elderly mother who was then critically ill at her home in Rosendale, New York, about 80 or 90 miles distant from New York City. The CHARMAN SERVICE CORPORATION 541 next day at about 1 p. in., Florio left New York City by bus to join his wife at her mother's home and, incidentally, also to visit certain nearby property which he owned. It had been Florio's custom in the past to absent himself from work on occasional week ends to visit his country property. The Re- spondent had never objected to this, and during the preceding summer had consented to an arrangement under which Florio could spend approximately every other week end at his country place. When Florio left the city, no official determination had yet been made to terminate the strike-at least Florio knew of none. The strike was actually terminated 3 hours later. Florio first learned the strike had been called off on Saturday night, April 9, when his attention was drawn to a newspaper story reporting that fact. Florio did nothing that night, but the next morning, Sunday, April 10, at about noon, he wired Lang that he would report Monday, April 11, for work on the night shift. Several hours before the start of the night shift on April 11, Florio received a telephone call at his New York City home from Hemley, the Respondent's dispatcher. Hemley told him not to report for work, explaining that his regular car had been assigned to another driver and he was no longer employed. Ques- tioning Hemley's authority to discharge him, Florio said he would come down to the garage anyway to see Lang who had hired him. Upon his arrival at the garage before the start of the night shift, Florio spoke to Lang who asserted he had no control over the situation as he had been superseded by Hemley in his authority to hire and fire drivers. Florio again spoke to Hemley, asking why he had been fired. Hemley said he could not keep a cab open for 11 days waiting for Florio to return to work. Florio took issue with that as the real reason, pointing out that in the past the Respondent had never objected to his absences from work to visit his country place. Hemley then said he had had Florio slated for discharge anyway because of his work, giving a number of reasons, none of which, however, are now relied upon by the Respondent' Addressing himself to Lang, Florio charged he was really being discharged because he had violated the condition on which he had been hired, not to engage in union activities. Lang remained silent, but Hemley replied that Florio was actually being fired because there was no job open for him. Florio offered to take any car out, and even to work on a part-time basis, but Hemley simply reiterated the Respondent had no job for him. G. The Respondent' s asserted reasons for discharging Florio At the hearing Mrs. Lang, the Respondent's president, and Lang, its general manager, testified they had nothing to do with Florio's discharge ; that the decision to effect it was entirely Hemley's. All he knew about it, testified Lang, was what Hemley told him, and what Hemley told him was that he did not reinstate Florio because Florio had been replaced before his return. Hemley's testimony was vacillating and not always consistent. He testified initially that Florio had been let go because he had been replaced on his regular car assign- ment by another steady driver, Bienerman. Later in his examination he added additional reasons, asserting among others, that Florio had not shown good results as a driver; that Florio had not properly respected him as a boss; and that Florio by his failure to call in during and immediately after the strike had s At the hearing, Hemley denied stating to Florio that he was slated to be fired, and asserted that Florio would have been reinstated had he returned to work on Friday or Saturday . As noted, Hemley was an unreliable witness, and to the extent his testimony conflicts with Florio's, that of Florio's is credited. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disclosed an intention to quit his job, leading Hemley to "beat him to the punch` by firing him first. These additional asserted reasons, however, were discarded by Hemley himself before the close of his testimony. Pinned down, he reverted to his original position, that Florio was not taken back because he had been replaced when he failed to appear for work within a day or two after the strike. "That," he testified, "was the definite reason. That was the only reason I had." It was "definitely" fair to assume, he added, that Florio would have been re- turned to his job had he called in before he was replaced by Bienerman. H. Analysis of the Respondent's defense; conclusions As Florio was an economic striker, the Respondent was, of course, entitled to replace him while he was out on strike, or, for that matter, at any time before he applied for reinstatement. And if replaced by a bona fide permanent replace- ment, Florio would have no right to his job on his return, so that a refusal of the Respondent to discharge the replacement to make room for him would not have constituted an unfair labor practice. The question here, however, is not one of law, but one of fact. The General Counsel argues that Florio was not replaced in fact, and in that respect I think the record fully supports his position. The Respondent's dispatch sheets show that Bienerman did become a steady driver on the cab which before the strike had been regularly assigned to Florio. But they also show that Bienerman did not enter on his duties as such until the night shift of April 11, 1949-after Florio was notified of his discharge. On occasions prior to the strike Bienerman had worked for the Respondent as an extra ; but after the strike began he did not work for the Respondent at all until April 11. Although not disputing that Bienerman began work as a steady driver after Florio's request for reinstatement, the Respondent contended that before that time it had already committed itself to assign Florio's old car to Bienerman. To support that contention, the Respondent relied entirely upon the testimony of Hemley. Hemley testified that on April 8 or 9-his testimony shifted as to the precise date-Bienerman called on him for work and, having no car to assign at the time, he told Bienerman to report on Monday, April 11, promising to assign him then to a regular car as a steady driver if the steady driver for- merly assigned to the car should fail to report. According to Hemley, at the time he made this promise he believed that Florio would not return to work, leaving his car open for assignment to a steady driver. Asked specifically whether his promise to Bienerman of a regular car assignment was made "con- ditional upon Florio not showing up," Hemley answered, "That is right." Accepting Hemley's testimony at face value, it is clear that Bienerman's em- ployment as a permanent replacement followed rather than preceded Florio's application for reinstatement. As has been shown, Bienerman was not actu- ally assigned to Florio's former car until the start of the night shift on April 11. Before that assignment was made, Florio had (a) wired the Respondent (the day before) that he was reporting for work on that shift; (b) been advised by Hemley (earlier that afternoon) that he had been discharged ; and (c) reported at the Respondent's garage ready for work. There is no validity to the Re- spondent's argument that the earlier "commitment" to Bienerman had the oper- ative- force of a replacement. For the "commitment" made was clearly a conditional one, subject to defeasance if Florio reported for work-as in fact he did-on or before April 11. The record not only refutes the Respondent's contention that Florio before his discharge had already been permanently replaced as a steady driver on his par-, ticular cab assignment, it also establishes that on April 11, and for some time, thereafter, the Respondent had openings for steady drivers on other cabs in its CHARMAN SERVICE CORPORATION 543 fleet. Thus, Hemley at one point of his cross-examination conceded, and the Respondent's dispatch sheets show, that for some time after the strike the Re- spondent had no steady drivers on its day shift for three of its cabs and, until steady drivers were eventually obtained-after April 11-followed the practice of assigning these cabs to the first extras that came along. On the night shift- even accepting Hemley's questionable identification of those considered to be steady drivers-it appears that only two or perhaps three steady drivers reported for work on Friday, April 8, six on Saturday, April 9, three on Sunday, April 10, and six (including Bienerman) on April 11.4 Under cross-examination, Hemley admitted that on April 11, and for a substantial period thereafter, he had four cabs open on the night shift, to which no steady drivers were assigned. It appears, in part from Hemley's testimony and in part from the dispatch sheets, that until these open cabs were eventually filled with steady drivers, the Respondent manned them not only with steady extras but also with floating extras. Although defending principally upon the ground that Florio had been replaced and his job was no longer open, the Respondent also argues that Florio's failure to report to work for 3 days after the end of the strike provided a legitimate basis for his discharge. Whether Florio's 3-day delay in reporting-taking into consideration that he first learned of the end of the strike on the evening of April 9 and could not possibly have reported until Sunday, April 10, at the earliest-might under any circumstances be said to be so unreasonable, as to warrant the Respondent in depriving him of the reinstatement rights normally safeguarded to a returning unreplaced economic striker, is a question that is unnecessary for me here to decide. For I am convinced on this record that the Respondent did not in fact discharge him for that reason. My conviction in that regard is derived from the following : To begin with, the controlling reason given Florio at the time of his discharge was not that he had been absent without proper excuse, but that he had been replaced during his absence leaving no job open for him. That reason , demon- strated to be false, was also the one Hemley eventually stated at the hearing was "the definite reason . . . the only reason [he] had." And while it is true that Hemley adverted in his conversation with Florio to Florio's 11 days' absence, as he did also in substance at one point of his testimony, it would appear from Hem- ley's own phrasing that it was not alone the 3 days' post-strike absence that in- fluenced his judgment, but that absence superimposed upon Florio's 8 days' absence during the strike-an absence the law protects. Moreover, the record reveals the Respondent normally pursued no rigid policy with regard to absentee- ism among steady drivers. Reference to the Respondent's dispatch records shows many instances of absences by steady drivers for periods longer than Florio's. Mrs. Lang testified that normally she would not hold it against a driver if he failed to report to work because of illness in his family. And Hemley testified that, while he expected drivers to get in touch with him if they were unable to report for work, he would not regard a failure to do so as a dischargeable offense if there were extenuating circumstances. Hemley testified further that it was not uncommon for steady drivers to fail to report in on Sunday-indeed the record shows that on Sunday, April 10, a number of them did not-and all that he required in these circumstances was that the driver notify him in advance. Bearing in mind that the Respondent in the past had consented to week-end absences of Florio while visiting his country property ; that his absence on this occasion was attributable largely to illness in his family ; that there were extenu- ' One of the extras to whom Hemley assigned a car on April 11 , the day Florio reported for work, was a driver named Cohen . Hemley testified that he considered Cohen an unre-, liable driver whom he would avoid sending out if he had some one else available. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ating circumstances explaining Florio's failure to report for work or to com- municate with the Respondent prior to the start of the Saturday night shift ; and that Florio did give the Respondent advance notice that he would not report on Sunday-and considering also that the Respondent was then faced with a short- age of steady drivers-I do not believe the Respondent would have discharged Florio simply on the basis of his 3 days' absence, were it not for Florio's par- ticipation in the strike immediately preceding that absence. My conclusion in that respect is both confirmed and fortified by Wien's credited testimony, adverted to above, reflecting that the Respondent had determined to rid himself of Florio because of his union activities before it was even in a position to know he would fail to report for work immediately after the strike. Appraised in its relationship to the other events narrated above, and in the light of the Respondent's failure to present a plausible explanation on any legiti- mate basis, the Respondent's discharge of Florio and its failure to reinstate or reemploy after the strike, though he had not been replaced, is rationally open to but a single interpretation-that it was motivated by the Respondent's resent- ment against Florio and effected as a reprisal measure against him because of his prominent role in the recently ended strike which had caused the Respondent financial loss. Upon the record as a whole, I am convinced, and I find, that the Respondent discharged Florio on April 11, 1949, and on and after that date denied him reinstatement or reemployment, because of his union and strike activities. By such conduct, I further find, the Respondent discriminated in respect to Florio's hire and tenure of employment, thereby discouraging member- ship in the Union and in labor organization generally, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent 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 disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. I shall recommend that the Respondent offer to Francis X. Florio immediate and full reinstatement to his former or a substantially equivalent position ° with- out prejudice to his seniority or other rights and privileges and make him whole for any loss of pay suffered by him as a result of the discrimination, by payment to him of a sum of money equal to the amount he would have earned from April 11, 1949, the date of his discriminatory discharge, to the date of the offer of reinstatement less his net earnings 9 to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. Earnings in one particular quarter shall have no effect upon the back- pay liability for any other such period. As it appears that Florio while in the 5 The Chase National Bank of the City of New York, Han Juan, Puerto Rico Branch, 65 NLRB 827. 6 Crossett Lumber Company, 8 NLRB 440, 447-498, Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. CHARMAN SERVICE CORPORATION 545 employ of the Respondent received, in the course of his employment, tips from taxicab passengers as a regular part of his earnings, it is recommended that such tips be computed in determining the amount he would have earned. It will also be recommended that the Respondent make available to the Board, upon request, payroll and other records to facilitate the checking of back pay due. As the unfair labor practice committed by the respondent was of a character striking at the roots of employee rights safeguarded by the Act and discloses a propensity on the part of the Respondent to continue, although not necessarily by the same means, to defeat self-organization of its employees, it will also be recommended that the Respondent cease and desist from infringing in any manner upon the employee rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. By discriminating in regard to the hire and tenure of employment of Francis Florio, thereby discouraging membership in labor organizations and thereby also interfering with, coercing, and restraining 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) (3) and 8 (a) (1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] 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 discourage membership in any labor organization by discrimi- natorily discharging employees or denying them reinstatement or reemploy- ment, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL OFFER Francis X. Florio immediate and full reinstatement to his former or substantially similar position without prejudice to his seniority and other rights and privileges and make him whole for any loss of pay suffered as a result of the discrimination against him. All our employees are free 'to become, remain, or refrain from becoming or remaining members of any labor organization, except as that right may be affected by an agreement requiring membership in a labor organization as a 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD condition of employment, as authorized in Section 8 (a) (3) of the Act. We will not discriminate in regard to the 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 labor organization. CHARMAN SERVICE COBPORATION, Employer. Dated ------------------ By ------------------------------------ (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof and must not be altered, defaced, or covered by any other material. SUNBEAM CORPORATION and, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, CIO SUNBEAM CORPORATION and UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA. Cases Nos. 13-CA-637 and 13-CA-653. June 6, 1950 Decision and Order On April 27, 1951, Trial Examiner Eugene E. Dixon issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of these allegations. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and briefs. The Board has reviewed the rulings of the Trial Examiner 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, and the entire record in the case, and hereby adopts the Trial Examiner's findings, con- clusions, and recommendations, only insofar as they are consistent with our findings, conclusions, and order hereinafter set forth. 1. The Trial Examiner found that the Respondent violated Section 8 (a) (1) and (5) of the Act by failing and refusing to bargain with the UE, which had been certified by the Board as the exclusive collec- tive bargaining representative of its employees in an appropriate unit, and by entering into a "members only" collective bargaining agreement with the TAM on August 21, 1950. In view of the Board's recent Sup- plemental Decision and Order' setting aside our certification of the 1 Sunbeam Corporation, 98 NLRB 525. 99 NLRB No. 89