Huber & Huber Motor Express, Inc.

HUBER & HUBER MOTOR EXPRESS, INC. 295 letters dated May 15, 1953, and June 1, 1953, alleged in paragraph 8 of the complaint, and has not violated Section 8 (a) (5) of the Act, as alleged in paragraph 11 of the complaint, by virtue of the issuance of such letters. (Recommendations omitted from publication.] HUBER & HUBER MOTOR EXPRESS, INC. and L. F. BARNETr TRUCK DRIVERS AND HELPERS LOCAL UNION No. 728, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL and L. F. BARNETT. Cases N08. 10-CA- 1811 and 10-CB-161. July 22,1954 Decision and Order On March 10, 1954, Trial Examiner George A. Downing issued an -intermediate Report, and on April 26, 1954, a Supplemental Inter- mediate Report, in the above-entitled proceeding, finding that the Respondent Company had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist there- from and take certain affirmative action, as set forth in the copies of the Intermediate Report and the Supplemental Intermediate Report attached hereto. The Trial Examiner also found that the Respondent Union had not engaged in unfair labor practices and recommended that the complaint be dismissed as to this Respondent.' Thereafter, the Respondent Company filed exceptions to the Intermediate Report and the Supplemental Intermediate Report, and briefs in support thereof.2 The Respondent Union also filed a brief in support of the exceptions of the Respondent Company. The Board has reviewed the rulings made by 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 Supplemental Intermediate Report, the excep- tions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner 's findings,-' conclusions, and recommendations. i As no exceptions have been filed to this finding and recommendations , we adopt them pro forma and, accordingly, shall dismiss the complaint against the Respondent Union. ' The Respondent Company' s request for oral argument is hereby denied as the record and the exceptions and briefs, in our opinion , adequately present the issues and the posi- tions of the parties. 3 We agree with the Trial Examiner's finding that the Respondent Company did not strictly enforce its rule requiring drivers periodically to telephone the dispatcher. The record shows that driver Chadwick missed the required calls 2 or 3 times without being disciplined Driver Thompson missed calling on some Saturdays until 12 noon or 1 p. in., without being asked for an explanation Driver Waters missed calls many times and was reprimanded only once On this occasion the Respondent Company's terminal manager indicated that the rule, which the drivers generally considered impractical , might be dropped as a basis for disciplinary action. The Trial Examiner found that the Respondent Company's discriminatory discharge of Barnett constituted a violation of Section 8 (a) (1) of the Act but not of Section 8 (a) (3) As no exceptions were filed to this finding , we adopt it without necessarily agreeing with the Trial Examiner's rationale. 109 NLRB No. 55. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order Upon the entire record in the case, and pursuant to Section 10 (c), of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent Company, Huber & Huber Motor Express, Inc., Atlanta, Georgia, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discharging or refusing to reinstate any of its employees be- cause they engaged in concerted activities for their mutual aid or protection. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such ac- tivities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8 (a) (3) of the Act.4 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to L. F. Barnett immediate and full reinstatement to his former or a substantially equivalent position without prejudice to, his seniority or other rights and privileges. (b) Make whole L. F. Barnett for any loss of pay he may have suffered by reason of the Respondent Company's discrimination against him, in accordance with the Board's usual remedial policies.' (c) Upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and re- ports, and all other records necessary for a determination of the amounts of back pay due under the terms of this Decision. (d) Post at its truck terminal, in Atlanta, Georgia, copies of the no- tice attached to the Intermediate Report and marked "Appendix A."3 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent Com- pany's representative, be posted by the Respondent Company imme- 4 N. L R B. v. Entwistle Manufacturing Co., 120 F. 2d 532 (C. A. 4). 5 F. W. Woolworth Company, 90 NLRB 289. 6 ,This notice, however, shall be, and it hereby is, amended by striking from the first para- graph thereof the words "Recommendations of a Trial Examiner" and substituting 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 "Pur- suant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." HUBER & HUBER MOTOR EXPRESS, INC. 297' diately upon receipt thereof, and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent Company has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the Respondent Union violated Sec- tion 8 (b) (2) and 8 (b) (1) (A) of the Act. MEMBER PETERSON took no part in the consideration of the above- Decision and Order. Intermediate Report and Recommended Order STATEMENT OF THE CASE These proceedings, brought under Section 10 (b) of the National Labor Relations Act, as amended (61 Stat. 136), were heard in Atlanta, Georgia, on January 27 and 28, 1954, pursuant to due notice. The complaint, issued on November 30, 1953, by the General Counsel of the National Labor Relations Board,' and based on charges duly filed and served, alleged in substance that: (1) Respondent Com- pany had violated Section 8 (a) (3) and (1) of the Act by discharging L F. Barnett at the Union's request, on June 2, and thereafter failing and refusing to reinstate him, in order to encourage membership in the Union and in order to discourage concerted activities by Respondent's employees; and (2) Respondent Union, by causing the Company so to discharge and to refuse to reinstate Barnett, had violated Section 8 (b) (2) and 8 (b) (1) (A). Respondents filed separate answers in which they denied said unfair labor practices and in which they pleaded further that Barnett had been discharged by the Company for just cause. All parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs and proposed findings of fact and conclusions of law Briefs have been filed by the General Counsel, Respondent Union, and the Charging Party. 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 RESPONDENT COMPANY Respondent Company is a corporation engaged in the transportation of freight by truck as a common carrier, operating in the States of Illinois, Indiana, Kentucky, Tennessee, and Georgia, under certification of the Interstate Commerce Commission. It is therefore an instrumentality of commerce and is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent Union is a labor organization which admits to membership employees of Respondent Company. i The General Counsel and his representatives at the hearing are referred to herein as the General Counsel and the National Labor Relations Board as the Board Huber & Huber Motor Express, Inc., is referred to as Respondent Company and Local No. 728, supra, as, Respondent Union All events occurred in 1953, except where otherwise specified. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Introduction; the contract; and applicable rules and regulations The collective-bargaining relations between the Company and the Union at the Atlanta terminal were governed by a contract effective March 1, 1952, which had been negotiated by committees of the Union and of the operators who comprised the Motor Freight Carriers of Atlanta. The contract provided in part that the Company should make no discharge without just cause and without at least one prior warning notice (with exceptions not here pertinent ); it also provided that warning notices should be without force or effect to support a discharge after 6 months from the date of issuance. Regulating further the operators' right to discharge and to discipline employees were detailed rules and regulations adopted by the committees, effective May 1, 1952, in which were scheduled various types of misconduct and the penalties pre- scribed for each . Pertinent to the present case was rule 3 (g), as follows: Failure to carry out orders First offense-letter of warning Second offense-discharge The contract also provided that the Company might make and enforce other reasonable rules, by posting and by copy to the Union, which rules should be of .force and effect immediately unless the Union should object within 10 days. In conformity with that procedure, the Company made a rule on May 1, 1952, which, so far as here pertinent, required all drivers to call the dispatcher by telephone when unloaded and to call no later than 12 o'clock, noon , whether unloaded or not. Fur- thermore, all pickup truckdrivers were required to call each hour after 12 o'clock. On October 14, 1952, the Company duly modified the above rule to provide, so far as here pertinent, that all pickup drivers should call the dispatcher by 10 a. in., if not unloaded , and again at noon and each hour thereafter.' Both rules concluded with the statement: Failure to comply with the above instructions will be an infraction of the present Rules and Regulations covering city drivers and will therefore be subject to the penalties provided for therein. The Union made no objection to either of the foregoing rules. In practical application they were not enforced to the letter, since the Company recognized that many circumstances , including the limitations of its telephone service, might pre- vent all the drivers from getting through to the dispatcher exactly on the minute. Accordingly, the Company condoned tardiness of as much as 15 minutes, and sometimes more, depending on the reasonableness of the driver's explanation of his delay. B. The discharge of L. F. Barnett Barnett, a city pickup driver, had been employed in the Company's Atlanta terminal since February 1950 ; he joined the Union shortly after his hiring. He was made job steward in July 1951 , and in that capacity handled with M . P. Holland, Jr., the Company's terminal manager , all grievances at their initial stage.' Barnett testified that during the course of his stewardship he handled with Holland some 5 or 6 grievances a week, consuming some 30 to 45 minutes a day, and that he referred to the Union some 40 percent which he was unable to adjust with Holland. There was evidence that under prior stewards the number of grievances was much smaller. The evidence showed that Barnett was not only active and aggressive in his han- dling of grievances with Holland, but that he also expressed frequent and strong criticism of union officers for what he considered their failure properly to process grievances which he had referred to them . By his tactics Barnett had incurred the 2 Although some of the General Counsel 's witnesses denied that they had seen the new rule posted on the bulletin board prior to Barnett 's discharge, the preponderance of the evidence establishes that it was duly posted and a copy furnished to the Union . Actually, the point is immaterial , since the earlier rule had required pickup drivers to call in by noon in any case , since the drivers had received oral instructions to call in at noon, and since Barnett's testimony disclosed plainly that he understood the noon call was required. 3 Grievances not adjusted between Barnett and Holland were reduced to writing and referred to the Union , whose business agent and other officers would then attempt to nego- tiate a settlement with Holland. Disputes not so resolved were carried to hearing before a joint grievance committee, designated by the Union and the operators, whose members were not connected with the particular local or the particular carrier involved in the dispute HUBER & HUBER MOTOR EXPRESS, INC. 299 ill will of both union and company representatives . Thus, within a few months prior to his discharge, Barnett had had two heated exchanges with Holland, during which he had cursed Holland and dared him to fight; he had had two similar exchanges with Welton L. Mathis (the Union's business agent in charge of the Huber terminal), during one of which coats were removed ; and as a result of Barnett's outspoken criticisms of R. C. Cook (the Union's president ) and Mathis at union meetings, Cook on one occasion had threatened to have Barnett forcibly ejected. Barnett's steward card was temporarily lifted as a result of his disputes with Mathis, but was restored to him after some 6 weeks when the employees refused to recognize another steward designated by the Union. The circumstances which led immediately to Barnett's discharge may be briefly stated. On December 4, 1952, Holland had issued to Barnett a formal warning notice, charging him as follows: On Dec. 3, 1952 you violated the following company rule .. . Rule 3 , paragraph (g)-Failure to carry out orders. Your conduct was not in keeping with efficient operation and we, therefore, find it necessary to warn you for failing to report to your dispatcher. On June 1, Barnett failed to make the required noon call, and in fact did not reach the dispatcher until 1 : 15 p. m.' Barnett testified that after the dispatcher, Paul H. Sweetman , took the call and heard his explanation, Sweetman warned him to "watch it," because "Mr. Holland had been after some of the guys for not calling in." Sweetman testified that after taking the call, noting the time, and hearing Barnett's explanation , he reported the facts to Holland. Holland discharged Barnett shortly after he reported to work the next morning, by a formal discharge notice, which read as follows: On June 1, 1953 you violated the following company rule . Rule 3 , paragraph (g)-Failure to carry out orders-SECOND OFFENSE. -Failure to report in to dispatcher in accordance with; company rules. Your conduct was not in keeping with efficient operation and we, therefore, find it necessary to discharge you. Barnett's testimony is somewhat contradictory as to the reasons which Holland assigned orally at the time, but is compatible, in its entirety, with the view that Holland's oral statements did not vary in substantial effect from the reasons stated in the notice. Contending that the cause assigned for the discharge was a mere pretext, the General Counsel offered the following evidence to support his claim that the dis- charge was in fact motivated by union and company resentment of Barnett' s aggres- sive handling of grievances: Four employee witnesses (R. J. Chadwick, A. A. Gunter, Jr., Lamar R. Thompson, and William T. Waters) testified that Holland had once commented (in February), during a discussion between the men of a grievance which Barnett was currently handling, that he would give a thousand dollars to get rid of Barnett, because Barnett was costing the Company too much money (through his successful handling of grievances). Barnett testified that the Union had won all of some 18 to 20 discharge cases on which he had processed grievances, and that Holland once complained to him that he was causing too much trouble and costing the Company too much money by making it stick too close to the contract. Holland denied making the statements testified to by Chadwick and the others, but made no denial of Barnett's testimony, which affords at least indirect support for the former. Furthermore, Holland admitted at one point that the handling of grievances with Barnett required an excessive amount of time, and that that was one of the reasons why he wanted to get rid of Barnett. Under these circumstances, the testimony of the four employee witnesses, above, is credited. The evidence also showed that no other driver had been discharged for failure or delay in calling in, and that only one other warning notice had been issued for that reason, despite evidence of occasional violations by other drivers. Bearing more particularly on his claim that the Union had caused or attempted to cause the discharge, the General Counsel offered the testimony of Eugene Hale, vice 4 Barnett's claim that he reached the dispatcher at 12 : 45 p. in is overborne by a pre- ponderance of the evidence, which includes the call -in sheet kept by the dispatcher Though under Barnett's credited explanation, there was justifiable excuse for some delay in reach- ing the dispatcher , there was none for a delay of 1 hour and 15 minutes , nor even for his admitted delay of 45 minutes 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD president of the Union. Hale testified that some 2 weeks before the discharge, while he and Mathis were checking into some grievances at the Huber terminal , Mathis said to Holland, "Why don't you fire that guy Barnett," and referred to the fact that the warning letter which Barnett had received in December would shortly ex- pire. When Holland suggested that if he did so, the Union would only require Barnett's reinstatement, Mathis responded that Holland had nothing to worry about. Hale also testified that on Friday before the discharge ( i. e., on May 29 ) Mathis, while engaged in a telephone conversation with S . C. (Jack) Massey ( district man- ager of another carrier and chairman of the joint grievance committee ), requested Hale to listen in on an extension line. Hale heard Mathis say, "Jack , you tell Hol- land to go ahead and fire that guy before his warning letter runs out. He hasn't ,got anything to worry about ." Massey replied, "0. K. I will tell him." Though Barnett's name was not mentioned , it is obvious that the conversation concerned him. Though Hale's testimony is credited over the denials of Mathis and Holland,' much of its force was overcome , insofar as the case against the Union was con- cerned, by unrebutted evidence offered by the Respondents of Mathis ' subsequent acts and statements concerning Barnett's discharge and by absence of evidence that Massey in fact transmitted Mathis' message to Holland . Thus the evidence shows that on the morning of June 2, Holland called both Mathis and Massey and informed them that he intended to discharge Barnett' because of the second violation of the Company's rule about calling in and that he sought assurances that such violation constituted justifiable grounds for discharge tinder the contract . Holland testified that Mathis talked, as usual, in the employee's favor, suggesting that he be given another chance , but concluded by stating that if Holland felt he had just cause to discharge, Mathis could not prevent it. Mathis' testimony was in accord that he endeavored to persuade Holland not to discharge a driver for an error of the sort involved ; that none had ever been discharged on that ground before ; but that if Holland nevertheless made the discharge , Mathis could do nothing except to have the matter determined under the grievance procedure. Massey's affidavit afforded emphatic corroboration: During the month of June 1953, I was chairman of the Atlanta City grievance committee . This committee is composed of two (2) operators and two (2) Union representatives, which handle grievances for the city employees under contract to the Truckers, Helpers and Warehousemen, Local Union No. 728. On or about the date that L . F. Barnett was discharged from the Huber and Huber Motor Express, Inc., I received a call from Mr . Holland, Terminal Man- ager of the Huber and Huber Motor Express, Inc. This call was in regards to an employee by the name of Barnett. It is a common occurrence for Mr. Holland to call and seek advice before any disciplinary action is taken on any of his employees. Knowing that Mr. Barnett had given Huber and Huber Motor Express , Inc., a lot of trouble, I discussed this case with Mr. Holland at length. He explained that Mr. Barnett had been given prior warning notices, which are set forth in the Union Contract and Rules governing employees. He said this warning was being given for failing to carry out orders , Rule 3 , Item 3, copy of rules which will be attached. He states [ sic] that Mr . Barnett had again failed to carry out orders by fail- ing to call in at a designated time, and that he, Mr. Holland, thought that this would be a justifiable reason for discharge . At this point , I told Mr . Holland I would call him back. I called Local Union No. 728, and got ahold of Mr. W. L. Mathis, and tried to get a committment from him that we did have a justifiable discharge case. Mr. Mathis refused to agree to this, stating that if we discharged this man, it would go to a grievance hearing, and he believed the Union would be upheld in this claim. Again I reviewed the case with Mr . Mathis and tried to get him to make a statement in favor of discharge . He refused and we got into an argument. I then told Mr. Mathis that we had a right to discharge this man and I remember 6 Massey's affidavit ( given the field examiner during the investigation) received in evi- dence with the General Counsel's consent because of the Company 's inability to procure Massey's testimony at the hearing, contained no reference to the alleged telephone con- versation on Friday 6 Further weakening the General Counsel's case against the Union was Barnett 's testi- mony in rebuttal , which strongly indicated that Holland had discharged him before calling Mathis and Massey. HUBER & HUBER MOTOR EXPRESS, INC. 301' Mr. Mathis said, "I can't keep you from discharging this man, so do what- ever you want to do." My call to Local 728 prior to disciplinary action is a common practice. After hanging up talking to Mr. Mathis, I called Mr. Holland and told him that the Union would not agree to discharge the man and I suggested to fire the man and we would go to the grievance hearing.? Pertinent to the defenses of both Respondents was Holland's testimony. Holland testified that neither the Union nor any of its agents had requested him, or caused him, to discharge Barnett, though he admitted that he sought (but failed to obtain) as- surances from Mathis and Massey that the discharge would be upheld as justifiable under the contract. And though insisting that the only cause for the discharge was Barnett's failure to call the dispatcher (after the previous warning notice for the same rule violation), Holland assigned a number of Barnett's acts and shortcomings which-considered apart from the contract provisions-he felt might have consti- tuted justifiable grounds for discharge. These included (1) unsatisfactory perform- ance of duties; (2) the unauthorized removal of papers from the bulletin board (for which a warning letter was issued on February 20); and (3) the two occasions when Barnett had cursed him. He took no action on such misconduct, Holland explained, because he considered it useless to do so under the contract. Holland testified further that he was fully aware that the December warning notice would shortly expire and would lose its effect as support for a discharge under the contract. In fact, his testimony as a whole showed plainly that in seeking to effect Barnett's discharge, Holland was concerned only with finding a cause which the Union would uphold as justifiable under the contract. There was no indication from his testimony at any point that he considered (or was even aware of) questions of discrimination, or of discharge for cause, under the Taft-Hartley Act. Indeed, Holland testified on cross-examination that he had wanted to get rid of Barnett as soon as possible, that such desire had existed for 6 months or longer, and that one of his reasons was the fact that while Barnett was steward, "something was going on all the time," and that too much time was being spent in handling grievances which Barnett presented. C. Concluding findings 1. The case against the Company The evidence presented by the General Counsel plainly made out a prima facie case that Holland discharged Barnett because of the latter's activities as shop steward in presenting and handling the grievances of fellow employees, and that Barnett's fail- ure to call the dispatcher was only a shallow but opportune pretext which Holland seized upon to screen his true motive. Thus Holland had expressed both to Bar- nett and to a group of employees his displeasure over Barnett's handling of grievances, and in the latter case he had disclosed the depth of his feeling by stating his de- sire to get rid of Barnett for that reason. The flimsiness of the pretended cause was apparent from the evidence that no other discharge had been made on that ground (as Mathis emphasized to Holland on June 2), that Holland had passed over prior misconduct infinitely more serious, and that he seized on a minor inci- dent in the waning days of the prior warning letter merely in the hope of qualifying within the literal language of the contract and the existing rules. Attention is accordingly turned to the question whether Respondents' evidence was sufficient to overcome the General Counsel's prima facie case (cf. Law et al., d/b/a E. B. Law and Son v. N. L. R. B., 192 F. 2d 236 (C. A. 10), citing Montgomery Ward & Co. v. N. L. R. B., 107 F. 2d 555, 560 (C. A. 7); and see Sixteenth Annual Report (1951), NLRB, p. 162, and Seventeenth Annual Report (1952), NLRB, p. 135 ), plainly established by the foregoing circumstances, that the Company was moti- vated by its desire to discourage and restrain its employees in seeking concertedly the remedying of their grievances. But instead of rebutting the General Counsel's case, Respondents' evidence serves actually to confirm it. Cf. N. L. R. B. v. E. C. Brown Co., 184 F. 2d 829 (C. A. 2), enforcing 81 NLRB 140. Thus, though Holland assigned at the hearing a miscel- lany of misconduct for which he might have discharged Barnett, his final insistence 4 Following the discharge, Mathis processed Barnett's grievance, under the regular pro- cedures, through the final stage of hearing and decision by a joint grievance committee on June 18, resulting in a denial by the committee of the Union's claim of an unfair discharge. Though Massey served on that committee, none of its members were connected with either of the Respondents, and there was no showing that the hearing procedures, including the presentation and reception of evidence, varied from those normally followed. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was that the only cause was that which he assigned in the discharge notice, i. e., Bar- nett's failure to comply with the rule to call the dispatcher . Though such violations had never before been seriously regarded by either Company or Union , Holland's choice of it was obviously motivated by Mathis ' suggestion (in Hale's presence) that he take advantage of the prior warning letter before its expiration and by the necessity that the second violation conform to the first in order to justify a dis- charge under the contract . That Barnett's second violation should have occurred in this setting was purely a fortuitous circumstance which Holland seized upon to furnish ostensible grounds to effectxa discharge . he had - long desired to make and which he felt would meet no serious objection from, the. Union . Indeed, Holland directly confirmed in part the discriminatory motivation charged by the General Counsel by admitting that at least one of his reasons was Barnett 's active handling of grievances. It is, therefore, concluded and found on the evidence as a whole that , in discharg- ing Barnett, Holland was motivated by his resentment of Barnett 's handling of the grievances of fellow employees . But in performing his stewardship , Barnett was engaged in protected concerted activities , discharge for which has consistently been held violative of the Act. See, e. g., Rugcrofters of Puerto Rico, Inc., 107 NLRB 256; Ohio Oil Co., 92 NLRB 1597; Dant & Russell, Ltd., 92 NLRB 307, enfd, 207 F. 2d 165 (C. A. 9); Heider Manufacturing Co., 91 NLRB 1185 , 1190-1; N. L. R. B. v. Pacific Mills, 207 F. 2d 905, 906 (C. A. 4).' It is still necessary, however, to determine the precise manner by which the Com- pany's action violated the Act. What the complaint charges and what the General Counsel contends is that the discharge was made to encourage membership in the Union and to discourage the concerted activities of the employees ( in presenting and processing their grievances through Barnett ). The recent decision of the Supreme Court (Radio Officers' Union, AFL v. N. L. R. B., N L. R. B. v. International Brotherhood of Teamsters, etc. (Byers Transportation Co.), Gaynor News Co., Inc. v. N. L. R. B., 347 U. S. 17 ) has now definitively established that questions of en- couragement of union membership under Section 8 (a) (3) of the Act are to be determined by the same rules applicable to discouragement, and that the "member- ship" which may not lawfully be encouraged under that section includes adherence to the union , the performance of membership obligations , and conformance to union practices. The Court observed that in the Radio Officers' and Teamsters cases the purposes of the union respondents in causing discrimination "clearly were to en- courage members to perform obligations or supposed obligations of membership," and that: Obviously, the unions would not have invoked such a sanction had they not considered it an effective method of coercing compliance with union obligations or practices . . . . Since encouragement of union membership is obviously a natural and foreseeable consequence of any employer discrimination at the re- quest of the union, [the ] employers must be presumed to have intended such encouragement. But, as hereinafter found, the General Counsel failed to establish that the Union caused or attempted to cause the Company to discharge Barnett; and the evidence does not show that the discharge otherwise consisted of, or was somehow related to, a method for coercing compliance with union obligations or practices . Mere knowl- edge by Holland of the animosities between Barnett and some of the union officers and his reason to believe that those officers might welcome the discharge did not establish that his purpose was, or that it was reasonably calculated , to encourage either adherence to the Union or compliance with union obligations . Therefore, since the General Counsel neither pleads nor claims discouragement of union mem- bership, it is found that the Company, by discharging Barnett, did not engage in unfair labor practices within the meaning of Section 8 (a) (3) Nonetheless it is obvious , as the General Counsel contends, that the discharge was calculated to discourage and to restrain Barnett and the other employees from engaging in concerted activities through seeking the remedying of their grievances concerning wages, hours, and other terms and conditions of employment. Such a discharge , being in any case a violation of Section 8 (a) (1) of the Act (see e. g., 8 Holland's testimony alone showed that one reason for the discharge was Barnett's handling of grievances. As a substantial and motivating reason, it alone would afford sufficient basis for inferring discrimination, despite the occurrence of Barnett's rule viola- tion (cf. N. L. it. B. v Whitin Machine Works, 204 F. 2d 883 (C. A. 1) and cases cited), since it was apparent that the latter was used as a mere utensil by which to effectuate a decision, previously arrived at, which had been motivated in substantial part by the former HUBER & HUBER MOTOR EXPRESS, INC. 303 Gullett Gin Co., v. N. L. R. B., 179 F. 2d 499 (C. A. 5), reversed and remanded on other grounds 340 U. S. 361, N. L. R. B. v. Phoenix Mutual Life Insurance Co., 167 F. 2d 983 (C. A. 7), cert. denied 335 U. S. 845; Mac Smith Garment Co., 107 NLRB 84), requires the same remedial order as a discharge which violates Section 8 (a) (3), i. e., reinstatement and back pay. Ibid. 2. The case against the Union As the General Counsel states his case in his brief, he does not contend that the Company's primary reason for discharging Barnett was the Union's request or assent, but he urges instead that a case was made out against the Union because, in view of the Company's experience with discharge grievances , Holland was unwilling to risk the discharge and would not have done so without assurances by the Union that Barnett would not be reinstated through the grievance procedure . But the General Counsel's position is not sustained either by the law or the facts. (1) Under the law, what a union is forbidden to do by Section 8 (b) (2) is to cause or attempt to cause an employer to discriminate against an employee. But merely for a union to be aware of an employer's desire to discharge and to voice no objection, or even to assent, is not the legal equivalent of causing, under the common meaning of the word, i. e., to be the cause of; to bring about ; to bring to pass; to cause to happen. Indeed, even to persuade or to attempt to persuade does not qualify as a violation of Section 8 (b) (2) as it was finally enacted. Thus, the legislative history shows that though Senate Bill 1126, as originally drawn and as it passed the Senate, used the words , "to persuade or attempt to persuade," the language was amended in conference to its present phrasing in order to meet the objections of the House conferees . See Cong. Rec., Senate , p. 6600, June 5, 1947; Legislative History of the Labor Management Relations Act, 1947, Vol. 2, p. 1539. Plainly, the General Counsel's statement of his position fails to make out a case against the Union under the Act. (2) Nor does the evidence sustain the General Counsel's contention that Holland obtained assurances that the Union would not require Barnett's reinstatement through the grievance procedure. Though Hale's testimony is credited, it does not establish that Mathis' statements to Holland and later to Massey constituted assur- ances that Barnett's reinstatement would not be required under the grievance proce- dure. And certainly Holland did not rely on any such statement as constituting an assurance, for the evidence is undisputed that on the very morning of the dis- charge, Holland sought , and failed to obtain, express assurances both from Mathis and Massey that the discharge would be upheld under the contract. It is therefore concluded and found, on the evidence as a whole, that the Gen- eral Counsel failed to establish that the Union caused or attempted to cause the Company to discharge Barnett; and it will, therefore, be recommended that the complaint be dismissed as to the Union. 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. Respondent Company's activities set forth in section III, above , occurring in connection with its operations 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. 2. Respondent Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discharging L. F. Barnett on June 2, 1953, and by thereafter failing and refusing to reinstate him, in order to restrain and discourage its employees from engaging in concerted activities for their mutual aid or protection, Respondent Com- pany has engaged in and is engaging in unfair labor practices proscribed by Sec- tion 8 (a) (1), affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. Respondent Union has not engaged in unfair labor practices within the mean- ing of Sections 8 (b) (2) and 8 (b) (1) (A) of the Act. THE REMEDY It having been found that Respondent Company has engaged in and is engaging in unfair labor practices, it will be recommended that it cease and desist therefrom and that it take affirmative action designed to effectuate the policies of the Act. [Recommendations omitted from publication.] 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARID 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 Rela- tions Act, we hereby notify our employees: WE WILL NOT discharge or refuse to reinstate any of our employees because they engage in concerted activities for their mutual aid or protection. 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, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and 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 National Labor Relations Act. WE WILL offer to L. F. Barnett immediate and full reinstatement to his. former or substantially equivalent positions, 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. HUBER & HUBER MOTOR EXPRESS, INC., 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. Supplemental Intermediate Report On April 13, 1954, the Board issued an order remanding the above case to the undersigned Trial Examiner for the purpose of considering Respondent Company's brief, which inadvertently failed to reach the Trial Examiner, and for the prepara- tion and issuance of a Supplemental Intermediate Report. Pursuant to said Order the Trial Examiner has now fully considered the Com- pany's brief and finds that the various contentions made therein, both factual and legal, were considered during the course of the preparation of the original Inter- mediate Report and were, for the most part, directly treated and disposed of. Many of the Company's contentions on factual matters were in fact adopted, while others were rejected, either expressly or by the adoption of contrary findings. For exam- ple, the findings as to the existence of the Company's rules and as to Barnett's violation of them accord with the Company's contentions, and are contrary to the General Counsel's. However, the findings concerning Holland's statement to a group of employees of his desire to get rid of Barnett and of Mathis' statement to Holland, testified to by Hale, are contrary to Respondent's contentions. On those and on other factual matters as found in the Report, Respondent's brief contains nothing which is persuasive of different findings. Respondent's legal contentions were also considered and (with one exception) disposed of in the original report. Those contentions raise mainly questions whether, since Respondent followed the contract provisions in effecting the dis- charge and since its action was upheld by the grievance committee, the discharge can be found to constitute discrimination inasmuch as it would neither have encour- aged or discouraged membership in the Union or in any labor organization. The report did not expressly consider the contention that the factors urged by the Com- pany precluded a finding of discrimination, but did conclude that no discrimination was involved for reasons stated in the report. The factors urged by the Company in fact support the former finding against discrimination. They do not, however, affect the conclusion that the discharge violated Section 8 (a) (1) of the Act, since the evidence establishes, as previously found, that Barnett's discharge was motivated by the Company's resentment of Barnett's handling, as steward, of the grievances of his fellow employees. The coinci- dence of Barnett's second rule violation merely afforded the opportunity for invok- ing the contract procedures (as suggested to Holland by Mathis) which became the machinery for carrying out the decision previously reached to discharge Barnett because of his handling of the grievances of his fellow employees. (See IR, foot- note 8.) ACE EXPORT PACKING CO., INC. 305. The fact that the Company followed the contract and that the discharge was upheld under its grievance procedures does not, of course, preclude finding that the discharge constituted an unfair labor practice, since the Board's power to prevent unfair labor practices is not affected by any other means of adjustment or preven- tion, whether established by agreement, by law, or otherwise. Section 10 (a); Columbus Iron Works Company, 107 NLRB 1354, and cases there cited; cf. Wert- heimer Stores Corp., 107 NLRB 1434. The Trial Examiner therefore adheres to and readopts his previous findings of fact,. conclusions of law, and recommendations. ACE EXPORT PACKING CO., INC. and UNITED ELECTRICAL , RADIO &. MACHINE WORKERS or AMERICA. Case No. 13-CA-1 08. July 22, 1954 Decision and Order On November 19, 1953, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and is not engaging in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting; brief, and the Employer filed a brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error. was committed.,- The rulings are hereby affirmed. The Board has considered the In- termediate Report, the General Counsel's exceptions and brief, the. Employer's brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] 'The General Counsel excepts to the Trial Examiner's rulings excluding the introduc tion of background evidence purporting to show antiunion animus of the Respondent. With- out deciding on its merits the correctness of this ruling, we find that, as. the discharge waS: for cause, the ruling is not, In any event, prejudicial. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a first amended charge filed on September 22, 1952, by United Electrical,. Radio & Machine Workers of America, herein called the Union, the. General Counsel, for the National Labor Relations Board by the Regional Director for the Thirteenth. Region (Chicago, Illinois), issued his complaint dated April 29, 1953, against Ace Export Packing Co., Inc., herein called Respondent, alleging that R•;spondent 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, 61 Stat. 136, herein called the Act. Copies of complaint and notice of hearing were duly served upon Respondent and the Union. With respect to the unfair labor practices the complaint alleged, in substance that Respondent on September 16, 1952, discharged Robert Green because of his mem- bership in and activity on behalf of the Union. On May 11, 1953, Respondent filed. its answer in which it admitted certain allegations of the complaint as to the nature' of its business, .but denied the commission of any unfair labor practices. 109 NLRB No. 49.