Protective Motor Service Co.

In the Matter Of PROTECTIVE MOTOR SERVICE COMPANY and TWENTY- FIVE EMPLOYEES Case No. C-5 Motor Truck Transportation Industry-Petition for Reinstatement in Charge- and Complaint Allegvng Discriminatory Discharge-Discrimintation : discharge- Reinstatement Ordered-Back Pay: awarded. 'Mr. Gerhard P. Van Arlcel and Mr. Samuel G. Zack for the Board.. Mr. Albert L. Moire, of Philadelphia, Pa., for respondent. Mr. Nathan Witt, of counsel to the Board. SUPPLEMENTAL DECISION June 9, 1.937 On April 28, 1936, the National Labor Relations Board, herein- after called the Board, issued a Decision in this case (I N. L. R. B. 639), in which the Board concluded that the Protective Motor Service Company, Philadelphia, Pennsylvania, hereinafter called respondent, had violated Section 8, subdivisions (1) and (3) of the National Labor Relations Act (49 Stat. 449), hereinafter called the' Act, by the discriminatory discharge of 18 of its employees, and in which the Board ordered, inter alia, that respondent reinstate the. discharged men with back pay.' In the statement of the case in- cluded in the Decision, the Board set forth that : "On March 12, 1936 H. C. Pfaff, Thomas J. Wohlan, David C.. Jenkins, Paul S. Birch and Horace A. Weston requested that their names be stricken from the charge. Pursuant to Article II,. Section 1, of National Labor Relations Board Rules and Regula- tions-Series 1 their request is hereby granted." At the time said employees requested that their names be stricken, from the charge, the complaint in the case, including their names, had been issued and a hearing had been held thereon. Consequently there was in the record evidence concerning these employees on N% hich the Board would have acted if the request had not been made. On July 13, 1936, H. C. Pfaff, Thomas J. Wohlan, and David C.. Jenkins filed a petition with the Board alleging that the request. I On May 6, 1936, the Board issued an Amendment of Decision, amending the Decisions in two minor particulars (I N. L. R. B. 650). 934 DECISIONS AND ORDERS 935 that their names be stricken from the original charge was made after they had been urged by Albert L. Moise, Esq., counsel for respondent, to do so upon a promise by him that they would be restored to employment immediately after they had filed such a re- quest with the Board; that relying upon this promise they signed the request; that they had not since been reinstated; and that they believe that the withdrawal of their names was procured and induced by a false promise for the purpose of shaking their allegiance to the Union 2 with no intention on respondent's part to reinstate them. The petitioners therefore prayed reinstatement in the original charge and complaint and that the Decision in the case be amended by add- ing their names to the list of employees to whom relief was granted. Respondent filed an answer to the petition denying that the re- quest for withdrawal of the petitioners' names from the original charge had been induced by promises of Albert L. Moise, and setting up affirmatively respondent's reasons for discharging and refusing to reinstate them. On the issues thus' framed the Board ordered a further hearing before Walter Wilbur, duly designated by the Board as Trial Exam- iner, and such hearing was duly held at Philadelphia, Pennsylvania, on August 6, 1936. The Board and respondent were represented by counsel, and full opportunity, to be heard, to, examine and cross- examine witnesses, and to produce evidence was afforded to all parties. The petitioner Jenkins failed to appear, and as to him the prayer in the petition will be denied. Pfaff and Wohlan testified at length relative to the circumstances under which their requests for withdrawal had been signed. Upon their own testimony there is nothing to substantiate the allegations in the petition as to the fraudulent procurement of such requests. Both petitioners sought the aid of Moise. They were told by him that he could do nothing for them while they were fighting respond- ent, that the first step that had to be taken was to separate them- selves from the pending proceedings and he would then do what he could to secure their reinstatement. It further appeared that Moise did make repeated but unsuccessful efforts on their behalf, and the Board believes that there was no misrepresentation or false induce- ment on his part. It further appeared that the petitioners did not themselves understand the implications of fraud which the language of the petition conveyed. The most that they intended to allege was that they had filed their requests in the hope of reinstatement through Moise's efforts. Even though respondent's counsel acted in good faith when he in- duced Pfaff and Wohlan to request that their charges be withdrawn 2 Local No 470 , International Brotherhood of Teamsters, Chauffeurs , Stablemen and Helpers of America '936 NATIONAL LABOR RELATIONS BOARD before they had been restored to work, the Board believes that their names should be reinstated in the original charge and complaint. It is true that it is the policy of the Board to attempt to secure com- pliance with the Act on the basis of which charges may be withdrawn and further proceedings avoided. However, the normal practice in such cases is for charges to be withdrawn only after there has been full compliance. Otherwise a premium would be placed upon solici- tation by employers or their representatives of individual employees. who, as shown by the fact that they had filed charges in the first place, are normally under heavy economic pressure to grasp at any promise of employment which may be held out to them. It seems immaterial that such a promise is made in good faith. As this very case demonstrates, events may make the promise impossible of fulfill- ment. In any event, Pfaff and Wohlan were not in fact restored to, employment, and consequently no injustice will be done respondent by the reinstatement of their names in the original charge and com- plaint. Uponvthe. evidence, adduced- at. the hearing beginning January 8,. 1936, in Philadelphia, Pennsylvania, before Walter Wilbur, Trial Examiner duly designated by the Board, and from the entire record now before it, the Board makes, in addition to the findings of fact made in its decision dated April 28, 1936, the following : I FINDINGS OF FACT 3 1. Harry C. Pfaff testified that he was first employed by respond- ent as a guard from October, 1921, to the spring of 1932. In Septem- ber, 1933, he was employed as a driver, and this work continued until January 13, 1934. On that date he had an accident while driving his own car. His injuries kept him in the hospital for several weeks, and he required medical treatment for some time thereafter. He returned to work in May, 1935, as an extra (part time) guard. Pfaff attended the Union meeting on October 29, 1935.4 He testi- fied he did not join the Union, but paid a fee. As to the circum- stances of his discharge on November 4, 1935, he testified as follows : "I went in to go to work that morning and Mr. West told me to go and see the Captain. I went to see the Captain and he asked me for my credentials. I laid them down to him and r asked him what it was all about. Well, he says that he had no 3 These findings are on the evidence concerning Pfaff and Wohlan individually. For a complete statement of the facts in the case , and for a full understanding of the cases of Pfaff and Wohlan, see Matter of Protectsue Motor Service Company, I N L. R B 639- 4 See Section III A, entitled , "Circumstances of the Dismissals ", in the prior decision, at p 642. DECISIONS AND ORDERS 937 time to discuss it now. So I walks out of his office and as I goes through the office I steps in Mr. West's office, and I said,. `Mr. West, what have I done that I should be discharged? I always done my duty around here.' He says, `You know what the rest of them got fired for, don't you?' I says, `Well, I guess for joining the Union.' He says, `That is up'to you."' There had been no complaints to Pfaff about his work. In fact, he was given a letter of recommendation by respondent on Novem- ber 8. Pfaff testified he had earned from $20 to $24 weekly until the last month he worked. During that month (October) he worked about 74 hours at 45 cents per hour, thus earning about $33.30. On cross-examination, Pfaff denied that he was dismissed in 1933 for drunkenness. Captain Marsh, respondent's president, testified as to Pfaff that : "Mr. Pfaff had some trouble before, and quite a lot of it. However, his previous trouble was not the cause of his being dis- charged. _ He was reemployed after all of this, and in this par- ticular instance the reason he was let go was in conjunction with his previous troubles, but the real camel or straw that broke the camel's back was his conduct in subversion of discipline on this occasion." 2. Thomas J. Wohlan testified that he was first employed by respondent in February, 1926, as a driver, and worked as a driver until April, 1927. In 1929, he -,w as again employed by respondent as a guard and money messenger, and was employed steadily in such work until his discharge. Wohlan worked 60 to 65 hours a week and earned $31.50 weekly at the time of his discharge. He had not earned any money from the dismissal date until the date of the hearing. Wohlan attended the organization meeting of the Union on Sun- day, October-27, 1935. He,testified that he did not join the Union. The next day he was called into the office of Captain Marsh. Woh- Ian testified as to this conference as follows : "And he asked me if I had been at that meeting and I told him, yes, and he told me, `You know, there is nothing like that to be tolerated around here-union meetings or organization of unions.' I told him I had been there; that I was invited up there, and I went there. He says, `Well, we will have nothing like that around here.' He says, `Suppose you got out of work, what would you do?' I said, `I would have to take a chance.' So he said he did not want to lose his temper about it, and he would forget it for the moment, and it wound up that there was not much more to it. The meeting dismissed. There was not much more to it." 938 NATIONAL LABOR RELATIONS BOARD Wohlan testified that on November 7, he was told that Marsh wanted to see him. Marsh gave him his check and told him he was through. When he asked why, Marsh replied he had no time to morgue. According to Wohlan, he has been replaced; he saw a new employee driving his truck on his route There had been no complaints about Wohlan"s work. On cross- examination, counsel for respondent sought to show that Wohlan•was dismissed because of his age, 55. Wohlan testified that no one, for respondent, had ever spoken to him of his age or had at any time during his employment told him he was too old. His age was not mentioned when he was discharged. Respondent has no retirement rule because of age. On re-examination, Wohlan named eight guards :and one driver between the estimated ages of 50 and 65, employed by respondent. Captain Marsli testified that Wohlan's age and physical condition were concerned in his discharge, but that he had "Wohlan's case under consideration". 3. If the above findings be considered in the light of the entire case as set forth in the Board's decision of April 28, 1936, it becomes apparent that the cases of Pfaff and Wohlan are similar to those of the discharged employees covered by that decision. We' therefore conclude that by discharging from employment, and by thereafter refusing to reinstate, Harry C. Pfaff and Thomas J. Wohlan, and by each of said discharges, respondent discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the labor organization known as Local No. 470, International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, and thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 4. The aforesaid acts of respondent burden and obstruct commerce and the free flow of commerce, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW Upon the foregoing findings of fact, and upon the entire record in the proceeding, the Board finds and concludes as a matter of law : 1. The names of Harry C. Pfaff and Thomas J. Wohlan should be reinstated in the original charge and complaint in this case. 2. Respondent, by discriminating in regard to the hire and tenure of employment of Harry C. Pfaff and Thomas J. Wohlan, and each of them, and by thereby discouraging membership in a labor organi- zation, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8, subdivision (3), of the Act. DECISIONS AND ORDERS 939 3. Respondent, by discharging and refusing to reinstate Harry C. Pfaff and Thomas J. Wohlan, and each of them, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices, within the meaning of Sec- tion 8, subdivision (1), of the Act. 4. Such unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2, subdivisions (6) and (7) of the Act. ORDER On the basis of the findings of fact and conclusions of law and pursuant to Section 10, subdivision (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders : 1. That the names of Harry C. Pfaff and Thomas J. Wohlan be added to sub-paragraphs (a) and (b) of Paragraph 2 of the Order made by the Board in this case on April 28, 1936; and 2.. That, the, petition of. David C. Jenkins, be dismissed without prejudice.