Consolidated Forwarding Co. Inc.

CONSOLIDATED FORWARDING COMPANY, INC. 357 Consolidated Forwarding Company, Inc. and Arthur G. Brackett and Patrick M. Kenily International Brotherhood of Teamsters, Chauffeurs , Warehouse- men & Helpers of America, AFL, Local 600 and Arthur G. Brackett and Patrick M. Kenily.l Cases Nos. 14-CA-1171 and 14-CB-233. April 21,1955 DECISION AND ORDER On December 6, 1954, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent Company, Consolidated Forwarding Company, Inc., and Respondent Union, International Brotherhood of Teamsters, Chauffeurs; Warehousemen & Helpers of America, AFL, Local 600, had engaged in certain unfair labor practices within the meaning of the Act, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. He also found that Respondents had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter Respondent Union and the General Counsel filed excep- tions to the Intermediate Report, and the General Counsel filed a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in these cases and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the Nation- al Labor Relations Board hereby orders : I. The Respondent Consolidated Forwarding Company, Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall: A. Cease and desist from : (1) Encouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, The Spelling of Kenily's name appears as corrected at the hearing s Discontinuance of the activities herein found violations, does not, as contended by the Respondent Union, preclude the Board from issuing a cease and desist order directed to the violations and any like or related conduct, nor does it render such an order inappro- priate. N L R B v F H DfcGrano R Co , 206 F 2d 635, 641 (C A 6), enfg 99 NLRB 695, Hrasnbo Food Stores, Inc, 106 NLRB 870, 880 In these circumstances, we find it unnecessary to adopt the Trial Examiner's comments concerning other uncharged instances of seniority based on union membership rather than actual dates of employment 112 NLRB No. 53 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 600, by reducing its employees in seniority to conform to the dates of their membership in said Union, and from engaging in any like or related conduct. (2) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities, 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. B. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Jointly and severally with the Respondent Union, make whole Arthur G. Brackett and Patrick M. Kenily for any loss of pay each may have suffered as a result of the discrimination against him in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (2) Upon request, make available to the Board, or its agents, for ex- amination or copying, all payroll and other records necessary to analyze the amounts of back pay due. (3) Post in conspicuous places at its business office at St. Louis, Mis- souri, including all places where notices are customarily posted, copies of the notice attached to the Intermediate Report marked "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by Respondent Company's authorized representatives, be posted by it immediately upon receipt thereof and maintained for a period of at least sixty (60) consecutive days. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (4) Notify the Regional Director for the Fourteenth Region in writ- ing within ten (10) days from the date of this Order what steps have been taken to comply herewith. H. The Respondent, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, Local 600, its officers, representatives, agents, successors, and assigns, shall : A. Cease and desist from : (1) Causing or attempting to cause Respondent Company, its of- ficers, agents, successors, or assigns, to discriminate against its em- ployees by reducing them in seniority to conform to the dates of their union membership, and from engaging in any like or related conduct. 3 This notice , however, shall be, and it hereby is, amended by striking from the first para- graph thereof the words "The 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 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." CONSOLIDATED FORWARDING COMPANY, INC. 359 (2) In any like or related manner restraining or coercing employees of Consolidated Forwarding Company, Inc., its successors or assigns, in the exercise of the rights guaranteed in Section 7 of the Act, 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 by Section 8 (a) (3) of the Act. B. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Jointly and severally with Respondent Company, make whole Arthur G. Brackett and Patrick M. Kenily for any loss of pay each may have suffered as a result of the discrimination against him in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (2) Upon request, make available to the Board, or its agents, for ex- amination or copying, all payroll and other records necessary to ana- lyze the amounts of back pay due. (3) Post in conspicuous places in its business office and meeting hall in St. Louis, Missouri, including all places where notices to members are customarily posted, copies of the notice attached to the Inter- mediate Report marked "Appendix B." 4 Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by the Respondent Union's authorized repre- sentatives, be posted by the Union immediately upon receipt thereof, and maintained by it for a period of at least sixty (60) consecutive days. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (4) Mail to the Regional Director for the Fourteenth Region signed copies of said notice, in number to be specified by the Regional Director, for posting, Respondent Company willing, adjacent to the posted notices marked "Appendix A." (5) Notify the Regional Director for the Fourteenth Region in writing, within ten (10) days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTIIER ORDERED that the complaints in these consolidated cases, insofar as they allege violations of the Act other than those found here- in be, and they hereby are, dismissed. MEMBER LEEDOM took no part in the consideration of the above Decision and Order. 4 See footnote 3 for amendments to notice attached to Intermediate Report as Appendix B. 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 ), herein called the Act, and consolidated by order 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the General Counsel of the National Labor Relations Board,' were heard in St. Louis, Missouri, on September 30 and October 1, 1954, pursuant to due notice. Separate complaints, based on charges duly filed and served, were issued against the respective Respondents on April 21, and amended complaints on September 17. The summary below is of the complaints as amended. The complaint against the Company alleged in substance that on or about March 18, the Company engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act by demoting Arthur G. Brackett and Patrick M. Kenily in their seniority at the direction of Local 600, by refusing to reinstate them to their former seniority standing, and by discharging Kenily on or about June 4, because said employees were not members of Local 600 prior to March 4 and March 22, re- spectively. The complaint against the Union alleged in substance that the Union engaged in unfair labor practices within the meaning of Section 8 (b) (2) and 8'(b) (1) (A) by causing the Company to discriminate against Brackett and Kenily as afore- said. Respondents filed separate answers to the amended complaints in which they made general denials of the unfair labor-practices charged, respectively, against them. The Company also denied that it discharged Kenily, averring that he had resigned or voluntarily quit by failing to report for work when called after repeated requests All parties were represented by counsel (except the Charging Parties) 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 and by the Company. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT COMPANY The Company, a Missouri corporation with its principal office in St Louis, is en- gaged as a common motor carrier in the transportation of general commodities It maintains and operates freight terminals located at Chicago, Cincinnati, Dallas, Indianapolis, Kansas City (Missouri), Milwaukee, Muskogee, Tulsa, Oklahoma City. Racine, and St Louis, operating as a common carrier under certificate from the Interstate Commerce Commission. In the course of its operations during the 12- month period prior to the filing of the complaint, the Company performed services in several States outside the State of Missouri of a value in excess of $50,000,2 and transported goods valued in excess of $1,000,000 through several States of the United States. It is therefore concluded and found that Respondent is engaged in interstate com- merce within the meaning of the Act. It. RESPONDENT UNION-THE LABOR ORGANIZATION Local 600 is a labor organization which admits to membership employees of Respondent Company. III. THE UNFAIR LABOR PRACTICES A. Background; summary of main events and issues Consolidated and Local 600 were parties to a contract which covered the Company's over-the-road drivers (employees) operating out of the St. Louis terminal. This case arose out of a dispute which began in March and which concerned the seniority standings of the drivers at that terminal, particularly those of the Charging Parties. who had formerly been members of Teamsters' Local 710, of Chicago Kenily and Brackett had formerly operated (from November 25, 1952, and March 10, 1953, ie- spectively) as owner-drivers of their own tractors under trip lease agreements with 1 The General Counsel and his representative at the hearing are referred to herein as the General Counsel and the National Labor Relations Board as the Board Consolidating Forwarding Company, Inc is referred to herein as Company and as Consolidated and Local 600 of Teamsters as the Union The events herein occurred in 1904 except where otherwise stated 2 The evidence concerning the scope of Consolidated's operations indicates that its annual income far exceeds these monetary figuies as alleged in the complaint and ad- mitted in the answers. CONSOLIDATED FORWARDING COMPANY, INC. 361 Consolidated. Due to a decline in business early in 1954, Consolidated cancelled all its leasing arrangements around February 15, but permitted Kenily and Brackett to become regular driver-employees on company equipment. Though the transfers of their membership from Local 710 to Local 600 were in process at the time, the initiation of the transfers had preceded and was unrelated, so far as the record shows, to the change in their driving status. The assignment of all drivers to their runs was made by the Company's dispatcher (Al Hallerman) in accordance with their seniority as established on a formal seniority list which was prepared periodically (normally about every 6 months) under the direction of Gilbert W. May, Consolidated's vice president. The evidence shows that for dispatching purposes, Hallerman inserted on his copy of the seniority list the names of drivers who entered the Company's employ during periods between the issuance of the formal lists During the entire period of their connection with the Company as owner-operators, the names of Brackett and Kenily did not appear on any of the seniority lists, they pulled only the overflow traffic and ran only after all drivers with seniority had been dispatched. Howeyer, Hallerman maintained a list of his own of the owner-operators, and observed their respective lengths of service with the Company in assigning them to runs after other drivers had been dispatched. After termination of the lease arrangements, Hallerman inserted Kenily's and Brackett's names on his copy of the seniority list (the latest of which had been posted on February 5), together with the dates on which they had begun driving as owner- operators, and he observed those dates for dispatching purposes until a new seniority list was issued on March 18. That list carried Brackett as of March 4 (when his transfer to Local 600 had become effective) and carried Kenily's name at the bottom of the list without a seniority date. From then until April 19, Hallerman dispatched Brackett under the March 4 date and Kenily under the date of March 22 (also in- serted by Hallerman), when his transfer to Local 600 was finally completed On April 19, May issued a new seniority list which carried Kenily and Brackett as of February 14 and 16, respectively, being the dates of approval of their formal appli- cations for employment as driver-employees. Those dates governed their subse- quent dispatching There was a sharp decline in the number of their assignments following the posting of the March 18 list. Grievances filed by Brackett and Kenily with Local 600 were processed under the grievance machinery of the contract, culminating with the decision of the Cen- tral State Drivers Council in Chicago on June 25, that Brackett and Kenily should be given seniority "as of the date of first employment in St. Louis " 3 Though that decision seems to make a somewhat ambiguous disposition of the matter, the parties apparently interpreted it as meaning the dates on which Kenily and Brackett began driving company equipment, i. e , February 14 and 16, since subsequent assignments were made on the basis of those dates, which also accorded with the April 19 list. On June 15 the Company discharged Kenily, after warning, for his repeated failures to report for assignments after notice. The main issues in the case are whether the Company discriminated against Brackett and Kenily by reducing them in seniority on the March 18 and April 19 lists, and whether the Union caused the Company so to discriminate. A subsidiary issue, but a most important one, is whether Brackett and Kenily were employees during the period they drove their own equipment as owner-operators. If they were not employees during that period, then the April 19 list correctly established their seniority, and the discrimination (if any) ended, thereby defeating also the General Counsel's contention that Kenily was constructively discharged (by being forced to quit because of inadequate driving assignments) on or about June 14.4 It was stipulated that the Board's Fourteenth Region was appiised of the processing of the grievance through the Kansas City and Chicago levels and that it postponed the hearing herein at the Union's request until after the decision, with the understanding that it was not conceding that the grievance proceduie had anything to do with the case and that it would not in any way waive or weaken the position of the Board or of the Charging Parties 4 The June 4 date in the complaint is apparently a typographical error. The Genei al Counsel also claims in his brief a violation which was not charged in either the original or the amended complaints, i e , that the seniority clause of the contract was violative of the Act in delegating to the Union (as it did) complete control of the settle- ment of controveisies over seniority See Pacific Intermountain Express Company, 107 NLRB 837, North East Texas Motor Lutes, Jae, et (it, 109 NLRB 1147. However, that clause was amended in March by a provision that seniority contioversies should be sub- mitted to the joint grievance pioceduie, and the Brackett-Kenily grievance was in fact 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since the issues will turn mainly on the employment status of Brackett and Kenily while they were owner-operators, that question will be first determined. B. The employment status of Brackett and Kenily while owner-operators 1. The evidence Consolidated is a regular route common carrier, under ICC certification. During 1953 it operated, out of its St. Louis terminal, some 65 tractors of its own, driven by its own driver-employees, and it leased such additional equipment as it needed from various owner-operators . Because of constantly increasing business , Consolidated made steady use of the equipment of a number of owner-operators (such as Brackett and Kenily under "trip lease," and Clarence E. Conners and Donley M. Rayman under "equipment lease"), and also found it necessary on occasion to lease equip- ment from others for hauling emergency loads 5 Both Kenily and Brackett had owned their equipment prior to beginning their connection with the Company, and had operated with other carriers under the same lease arrangement and the same conditions generally as they did later with Con- solidated. Brackett furnished a single tractor, which he drove himself. Kenily furnished 1 and sometimes 2 tractors, driving 1 himself and providing the driver for the other (subject to the Company's approval). The Company had no financial interest of any kind in the leased equipment. The trip-lease agreements were brief and relatively informal documents under which the owner-operator leased his tractor to the Company for a single one-way trip out of, or returning to, St. Louis. In actual practice Brackett and Kenily always made the return trip to St. Louis, and Kenily testified that such was the verbal agree- ment. A separate lease was usually (though not always) signed for each trip. Kenily authorized his driver to sign for him on his second tractor when it was leased to the Company. Briefly, the leases required the owners to provide the driver , the gas, oil, and repairs, and the necessary State license plates, and to carry on the tractor the ICC identification plates of the Company. The owners were also required to furnish fire, theft, and collision insurance on their tractors, but the Company was to furnish cargo, public liability, and property damage insurance . Exclusive direction and control was given the Company, including direction over the routes to be traveled. Though it was understood that their equipment was to be available exclusively to the Company, both Kemly and Brackett occasionally made trips for other concerns, with Hallerman's permission, usually when freight was slack. In making such trips, they operated under the same type of lease arrangement and the same conditions as with Consolidated, save that the trip leases covered a round trip. Furthermore, neither procured the written permission of the Company and the Union for a leave of absence, as required of employees under the contract. Indeed, the contract for- bade employees during the period of absence , from engaging in gainful employment in the same industry. Neither Brackett's nor Kenily's name appeared on any of the Company's seniority lists, and they had no status to bid for runs. Employees with even the least seniority were dispatched ahead of them. And though the contract contained a union-shop clause and a checkoff clause covering all employees who were subject to the agree- ment, Brackett and Kenily were not members of Local 600 and no checkoff was made in their case. Neither did they receive, or assert any right to receive, any of the employee benefits provided in the contract, such as vacations, paid holidays, or health or welfare insurance. Indeed, the testimony showed that they did not con- sider themselves to be employees subject to the contract, despite knowledge that the Company engaged other owner-operators who were covered by it. As Kenily ex- pressed it, "As far as the Company I was an owner-operator. I owned my own tractor and operated it," and he admitted he was not covered by the contract. So far as actual driving was concerned, Brackett and Kenily performed under substantially the same conditions and subject to the same rules as the Company's driver-employees. Thus, briefly, they reported for work to the dispatcher, received handled under that procedure In view of those facts and the General Counsel's failure to seek an amendment of his complaints, no finding will be made on the General Counsel's present contention that the existing seniority clause continues to violate the Act. 6 May testified that in 1953, Consolidated may have leased equipment from as many as 20 or more such lessors altogether, all of whom operated under the trip-lease arrangement, hauling extra loads CONSOLIDATED FORWARDING COMPANY, INC. 363 their assignments and took their orders from him, and applied to him for time off. They punched the time clocks and signed in and out. They did no loading or unload- ing and furnished no personnel for that purpose, and company spotters checked their air hoses and spotted the trailers. They kept logs of their driving, stopping, and off-duty time, observed the rule against hauling passengers, notified their destinations if delayed en route, and were subject to the regularly scheduled hours allotted for trips. They patronized hotels specified by the Company (when away from St. Louis), the Company paying the room charges, and they were subject to call after prescribed periods of rest. They received "bob-tailing" allowances and were paid for layovers except where due to breakdowns to their tractors. They were covered by workmen's compensation insurance carried by the Company. They had no interstate permits, but operated under the Company's, and they carried on their tractors the Com- pany's name and a number assigned by the Company. In many other respects, however, their situation differed widely from that of driver-employees. Thus they and the Company observed all provisions of the trip-lease agreements, summarized above. They made out no applications for employment, furnished no tax or social-security forms or information, and no social-security deductions were made and no income taxes withheld from their checks. They were not paid at regular intervals, but at the Company's convenience, usually at the end of a round trip. They were paid by single checks which covered both the truck rental and the driver's services and which carried no allocation or breakdown of the total (though their compensation corresponded with the rates set up in the contract). They furnished medical certificates at their ,own expense. Kenily selected and hired the drivers of his second tractor (subject to company approval), had them furnish the required medical certificates, kept the record of their wages and hours, and paid them their wages, less customary tax and social- security deductions. Kenily was paid for such trips also by single checks, just as for the tractor which he drove. Finally, when the lease arrangements were cancelled, Brackett and Kenily filed, for the first time, formal applications for employment, together with necessary information and forms for social security and withholding taxes. Thereafter they were paid at regular intervals as other employees, with the usual deductions, and they then qualified for the employee benefits provided in the contract, including a seniority standing. There is yet other evidence, however, which squints again in the direction of an employee status, it concerned Conners and Rayman, who were also owner-operators of leased equipment, but who were recognized by the Company and the Union to be employees subject to the terms of the contract. Those terms, so far as here pertinent, provided that owner-operators (i e , owner-drivers only) were not cov- ered by the contract unless they operated exclusively for the employer-carrier; that the leased equipment should be operated by an employee of the carrier; that the equipment should be leased for a minimum of 30 days, and should be operated on a rotating board (together with the Company's equipment) before hiring any extra equipment, and that separate checks should be issued for the drivers' wages and equipment rental The obligations regarding the furnishing of licenses, gas, oil, repair work, and insurance corresponded generally to those created by the trip leases. The General Counsel made no showing that the trip leases came within the description of those covered by the contract, that Brackett and Kenily were the type of owner-operators which fell within its coverage, or that the Union in fact bargained for them. Neither the Company nor the Union nor the Charging Parties claim that they were subject to the contract. From January 1953 and February 20, 1953, respectively, Rayman and Conners had operated under formal equipment leases, which were frequently referred to in the record as permanent leases and which in fact provided that they were to continue in effect subject to termination on 30 days' notice by either party. Equip- ment when so leased was considered as a part of Consolidated's permanent fleet, but not so when under trip lease Prior to going under equipment leases, Conners and Rayman had operated under the trip-lease arrangement during various periods, sometimes furnishing both tractor and trailer and sometimes driving company tractors. Though their first connection with the Company had antedated their membership in Local 600, the Company's records, including the seniority lists, carried employment dates which coincided with their membership (i. e., July 25 and August 15, 1951, respectively). 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is unnecessary to summarize the detailed provisions of the equipment leases; 6 it will suffice instead to point out the more significant respects in which they differed from the trip leases and in which Conners' and Rayman's relationship to the Com- pany differed from that of Brackett and Kenily. Preliminarily it is to be noted that insofar as actual driving was concerned Conners and Rayman performed, while under the equipment-lease arrangement, substantially as did the Company's driver- -employees and conformed to the same company rules and directions. In those re- spects their situation was identical with that of Brackett's and Kenily's. There were however the following significant differences: A permanent arrangement was contemplated under the equipment leases whose terms in this respect and otherwise qualified the owner-operators for coverage under the contract. The lease specifically provided that the drivers (including the owner) should be employees of the carrier and that the owner should be com- pensated as driver for his services as an employee. Conners and Rayman were -paid by separate checks for wages and for truck rental, the lease providing specifically that the owner should be compensated as an employee while driving either his own or other equipment. The trip lease obligated the lessor to furnish his driver, and Brackett and Kenily drove only their own equipment. The equipment lease gave the Company the exclusive right to select, direct, appoint, and discharge drivers of the leased equipment,7 and the owners sometimes were assigned to drive company tractors. There is no, evidence that, while operating under the equipment leases, Conners and Rayman pulled loads for other companies as Brackett and Kenily did. Nor is there indication from the evidence, or claim by the General Counsel, that mem- bership in Local 600 was a factor which influenced the placing of certain owner- operators under equipment leases and others under trip leases. Other evidence upon which the General Counsel relies to support his claim of an employee status for Brackett and Kemly concerned J. P. Bingham, the last of three drivers whom Kenily had hired to drive his second tractor leased to Con- solidated. Bingham drove Kemly's tractor from late August or early September 1953 until sometime in November, but then went onto company equipment as its driver-employee. However, Bingham's employment and seniority dates were set up on the Company's records as of September 15, 1953. His union member- ship began August 31, 1953, which presumably coincided with his initial employ- ment by Kenily There was evidence also that on one occasion in January 1954, Bingham had driven his own tractor for the Company under a trip-lease agreement. 2. Concluding findings In the field of employer-employee-independent contractor relationships the variety of factual combinations approaches the myriad, the problem of differentiating be- tween them has long given much difficulty, United States v. Silk, 331 U. S. 704, 713, and has resulted in much confusion in the decided cases. In most of such cases (as here) the facts reflected many indicia of both an employer-employee relationship and an independent contractor status, and the problem became one of determining whether the factors which were indicative of one status outweighed those which indicated the other. Cf. Malone Freight Lines, Inc., 107 NLRB 501. For the question turns on all the facts in each case; no one factor is determinative, though some, of course, possess more significance and are to be accorded more weight than others. Cf. Eldon Miller, Inc., 107 NLRB 557 (supplemental decision). Thus, "It is the total situation, including the risk undertaken, the control exercised, the opportunity for profit from sound judgment," United States v. Silk, supra, at p. 719, which will determine whether owner-operators are independent contractors. Though independent contractor questions have been before the Board for many years and in many different postures, the owner-operator problem in specific rela- tion to motor freight carriers is one which has assumed prominence only in more recent decisions Thus it is necessary to go back only as far as 1950 for a full explica- tion of Board law in the present field, beginning with Nu-Car Carriers, Inc., 88 NLRB 75, enfd 189 F. 2d 756 (C A. 3), cert denied 342 U. S. 919, and continuing through Examination of the record in Ilughec Transportation, Ine, 109 NLRB 458, discloses that the equipment leases here are identical in all substantial respects with those in the Ilvphes case, whose essential provisions were summarized by the Board in that decision 7In actual practice the Company permitted Conners and Rayman to drive their own tractors, though May called their attention to the Company's right under the lease to assign other drivers if it so desired CONSOLIDATED FORWARDING COMPANY, INC. 365 Oklahoma Trailer Convoy, Inc, 99 NLRB 1019; Eldon Miller, Inc., 103 NLRB 1627 and 107 NLRB 557 (supplemental decision); Malone Freight Lines, Inc., 106 NLRB 1107 and 107 NLRB 501 (supplemental decision); Hoster Supply Company, 109 NLRB 466; and Hughes Transportation, Inc., 109 NLRB 458. Though these cases all bore many similarities, one to the other, the driver-owners were found to be employees in three of them (Nu-Car, Hoster, and Hughes) and independent con- tractors in the other three (Oklahoma, Malone, and Miller). The present case in turn bears similarities and dissimilarities to the cases in both of those groups, and the problem here is one of weighing the points of resemblance and of difference, to determine which line of cases is controlling. In so doing, it will be unnecessary to analyze in detail the factual situation in each case, since the Board emphasized during the course of the decisions the more sig- nificant points which moved it to follow or to distinguish other particular cases. In Malone, for example, the Board though acknowledging factual similarities with Nu-Car, distinguished the latter mainly on the basis of the following facts relating to the nature of the ownership of the trucks, which it considered to be "particularly significant": In Nu-Car Carriers the drivers did not own their vehicles when they started working for the employer; the company and the drivers executed simultaneous sale and lease agreements whereby the company sold tractors to the operators for small down payments and the drivers then leased the tractors to the com- pany. Installment payments on the balances due on the vehicles were deducted from the drivers' subsequent earnings . Of particular significance is the fact that title to the tractors remained in the company with the reserved right to repurchase the vehicles upon termination of the lease agreements. On the other hand, the owner-drivers in this case owned their tractors exclusive of any proprietary interest by the Respondent at the time they started hauling for the Respondent and thereafter. The Board went on to hold that such factual similarities as existed with Nu-Car were outweighed by the ownership factor, plus other factors which had been stressed as indicia of independent contractors in Oklahoma Convoy, supra, and in Greyvan Lines, Inc. v. Harrison, 156 F. 2d 412 (C. A. 7), affd. sub nom. United States v. Silk, supra, as follows: (1) Responsibility for the payment of necessary license fees and taxes (except Alabama State mileage tax for the driver), (2) obligation to pay any labor costs incidental to the loading or unloading of freight, (3) responsibility for keeping equipment in good operating condition, and (4) obligation to pay for tractor repairs and upkeep. The Board also emphasized the following facts "peculiar to this case" as further indicia of an independent contractor status The carrier did not deduct or pay for its owner-drivers' social security, withholding taxes, State employment taxes, or workmen's compensation. The drivers did not participate in any of the following benefits which ordinary employees received- Paid vacations, life, health, and accident insurance, and bonus and retirement plans As is seen, the present case resembles Malone on practically all the factors which the Board considered controlling The main exception-i e . the obligation for loading and unloading costs-is without apparent significance here where the ar- rangement called for the furnishing only of a tractor and its driver to pull the Company's loaded trailer. In its initial decision in Eldon Miller, supra, the Board had under consideration the status of one group of driver-owners under "conditional sales" agreements similar to the Nu-Car arrangement, and another group who drove under "owner-lease" agreements, which were somewhat more formal than the trip-leases involved here. The conditional sales drivers were found to be employees, on the "established prece- dent" of the Nu-Car case. However, though many of the lease provisions were similar, the Board found the drivers under the owner-lease agreements to be inde- pendent contractors. on the "established precedent" of the Oklahoma Convoy and Silk cases, stressing in part these "significant distinctions": the leases did not require the personal services of the owner as a driver and did not preclude his employment elsewhere. The Board later reopened the record to take additional evidence on the relation- ship of the employer and the conditional sales drivers, respectively, to certain sub- stitute drivers, and the following facts were developed: The employment of sub- stitute drivers sometimes became necessary as a result of ICC safety regulations which prohibited any driver from operating a truck for more than 12 hours in any 24-hour period. Under the lease agreement it was the conditional sales driver's obligation to furnish an acceptable substitute driver, whom he referred to the com- pany for approval, whom he then hired at a rate of pay which he himself determined, 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and whom he paid out of the hauling fees paid him by the company. The condi- tional sales driver was also responsible for the payment of social security and with- holding taxes for his substitute, was accountable for the latter's work performance, and any deficiency thereof could subject the conditional sales driver to a breach of contract claim by the company. The conditional sales driver also possessed the unqualified right to discharge the substitute. Holding that the foregoing facts impelled it to reconsider the "employee" status of the conditional sales drivers themselves, the Board held that the new facts showed that the conditional sales drivers were vested with and exercised, either jointly with the company or independently thereof, the kind of powers exercised by employers rather than by ordinary employees, and that such powers obviously rendered vulner- able its original determination that the conditional sales drivers were employees. The Board also referred to the fact that the lease agreements expressed the intent of the parties to create an independent contractor relationship,8 and though noting that that factor was not determinative of the legal issue, held that it was to be regarded as a persuasive reason for resolving a close case. Citing Malone, the Board held that the factors indicative of an independent contractor relationship outweighed those of an employee-employer relationship, and reversed its former holding. The results which the Board ultimately reached in Eldon Miller plainly afford a fortiori support for the conclusion that Brackett and Kenily were independent con- tractors. Thus the analogies with Nu-Car (which are not here present) were found to be outweighed by the relationship between the conditional sales drivers and their substitutes, which was itself similar in all significant respects to the relationship between Kenily and the drivers whom he supplied for his second tractor pursuant to the terms of the trip leases. The Hoster and Hughes decisions require no different conclusion ; they are dis- tinguishable in significant respects both from Malone and Miller and from the present case. In Hoster the employer was a dealer, not a common carrier.9 For its long-distance hauling it leased from individual owners 7 trucks for terms of 3 years, subject to cancellation on 30 days' notice, and it operated in addition 1 local truck which was driven by an admitted employee. The leases provided for exclusive use of the equipment by the company and for its exclusive management, direction, and control. The leases also provided that the company would employ the drivers to operate the equipment and would make proper deductions and payments of all social security, unemployment, old age benefits, withholding taxes, and similar taxes on all employees driving and operating such equipment, including even the lessors if they should be so employed. In practice all the leased trucks were driven by their owners. The employer relied heavily on the Malone case to support its contention that the owner-drivers were independent contractors. The Board summarized in its decision various points of similarity and of dissimilarity, but concluded (with two members dissenting) that the similarities were outweighed by the dissimilarities and that the owner-lessors, in their capacity as drivers, were employees. As it has been pointed out above how closely the present case resembles Malone, it will suffice here to note significant points on which it differs from Hoster. Contrary to Hoster (and to the provisions of the equipment leases herein), the trip leases did not provide for deductions for social security and withholding taxes, nor were such deductions made The owners were paid a lump sum for truck rental and for drivers' services, without any of the deductions which are typical of an employee status. The trip leases also required the owners to furnish the drivers for their trucks, while in Hoster (as under the equipment leases) the employers retained the right to assign drivers. Here, also, the owners, contrary to express provisions of the contract relating to employees, engaged in other gainful employment in the industry, and without procuring written permission of the Company and the Union for the leave of absence. Other drivers, when furnished by owners, occupied a status and a relationship analogous to that between the substitute drivers and the conditional sales drivers in the Miller case. In the Hughes case the carrier was engaged in the transportation of explosives and ammunition for the United States Government in 16 States. It had 100 trailers and 31 tractors, the drivers of which were its own employees. There was in question 8 Though the trip leases here did not express in haec verba the intent to create an inde- pendent contractor relationship, such intent was plainly evident from the literal terms of the lease Significantly the equipment leases expressed the intent to create an employee relationship O That a trucking company was a contract, rather than a common carrier, was recog- nized to be a valid point of distinction in Greyvan, supra, at p 415. CONSOLIDATED FORWARDING COMPANY, INC . 367 the status of the drivers of 12 leased tractors, 6 of which were driven by their owner- operators and 6 by nonowner-operators, selected by the owners or the company. The decision turned largely on the question whether Eldon Miller was controlling, two dissenting members urging that the facts made out a stronger case for an inde- pendent contractor status than did Miller. The majority found, however, that the factors indicative of an employer-employee relationship outweighed those indicative of an independent contractor relationship. It is unnecessary to repeat here the various points of resemblance and of difference between the two cases, since the bulk of the opinions was devoted to comparing and distinguishing the facts. What is of crucial significance to the present case is the fact that the lease agreements in Hughes were identical in all substantial respects with the equipment leases in the present case (see footnote 6, supra), and that the owners operated under them under substantially the same conditions as did Conners and Rayman here. If the Hughes case has importance then, it is as persuasive, if not controlling, authority for the view that Conners and Rayman were employees, a conclusion that is not questioned by any of the parties hereto. But as applied to Brackett and Kenily, the case is not persuasive; the facts concerning them and their operations under the trip leases, and their relationship to the Company and to their extra drivers, bear much closer resemblance on significant factors to Malone, Miller, and Okla- homa Convoy. Indeed, many of the facts concerning Consolidated's exercise of control and the observance of company rules and directions (on which the General Counsel strongly relies) are not inconsistent with the independent contractor rela- tionship, since they resulted from and were in conformity with the rules and regula- tions of the Interstate Commerce Commission. Oklahoma Convoy, supra, at pp. 1023, 1024, and footnote 16; and cf. Greyvan case, supra, and United States v. Mutual Trucking Co., 141 F. 2d 655, 658 (C. A. 6). Here as in Oklahoma Convoy, the total circumstances are closely analogous to those considered by the Supreme Court in affirming Greyvan, and are in some re- spects more strongly indicative of an independent contractor status. Thus, in Greyvan, supra, at pp. 413-414, contrary to the present case, the truck owners con- tracted for the exclusive services of themselves and their equipment; they were required to drive, and if they hauled for anyone else, their contracts were subject to termination for breach. It is true that some inconsistency seems involved in reaching different results be- tween the two groups of owner-operators here largely on the basis of differences in the forms of leases employed in their respective cases. Yet the differences involved more than mere semantics; they went to matters of substance and of crucial signifi- cance to the nature of the respective relationships which were observed by the parties in their performance under the contracts. Besides, the terms of the various lease agreements were considered among the relevant factors in all of the cases cited above, with the varying results which have been noted. Though contracts "however skillfully devised" should not be permitted to enable the parties to escape obligations fixed by law, cf. Lucas v. Earl, 281 U. S. 111, 115, yet there is no indication that Congress intended to change normal business relationships through which a business organization may obtain the services of another to perform for it a portion of production or distribution. Silk case, supra, at pp. 712, 714; Mutual Trucking case, supra, at p. 569. Indeed, the Wagner Act was amended by Section 2 (3) of the present Act expressly to exclude independent contractors from the definition of "employee," in order to reflect congressional disagreement with the Supreme Court's holding in the Hearst Publications case (332 U. S. 111) that ordi- nary tests of the law of agency could be disregarded by the Board in determining whether certain occupational groups were employees, and to make it clear that Congress did not mean to embrace persons outside that category under the general principles of the law of agency. Legislative History, LMRA, Vol. II (G. P. 0., 1948), p. 1537; and see H. Rept. 245, 80th Cong. 1st sess., p. 18; H. Rept. 510, 80th Cong., 1st sess., pp. 32-33. C. The reduction in seniority: the issues of discrimination The conclusion that Brackett and Kenily were independent contractors while owner-operators narrows sharply the scope of the discrimination issues and the field of the relevant evidence. Attention will first be turned to such portions of the case as are eliminated by that finding. Initially, of course, no discrimination apears (and none is claimed) during the period from mid-February to March 18, since Hallerman dispatched Kenily and Brackett under seniority dates which conformed to the inception of their trip-lease 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arrangements . And there was no discrimination after April 19, because the sen- iority list of that date correctly established their standings as of the dates on which they became employees of the Company as found above. The latter fact, in turn , defeats the General Counsel's contention that Kenily was constructively discharged by being forced to quit because the reduction in his seniority resulted in so few assignments that he failed to earn a living wage. What the record shows in that connection is that Kenily was formally discharged by the Company by its letter of June 15, for ignoring its earlier letter of June 9, and other repeated requests to report for work. Kenily made no denial of the facts recited in either letter ; in fact, he admitted that he had been out of town for approximately a month, employed else- where, operating his truck on a wildcat basis . There is thus not the slightest evidence that Consolidated discharged Kenily to encourage or to discourage membership in Local 600, or that the Union caused or attempted to cause the discharge. There remains only the question whether Brackett and Kenily were discriminated against during the period from March 18 to April 19. Though the record contains considerable evidence regarding events which led to their transfers to Local 600, in- cluding much concerning the Union 's claim that the transfers were voluntary and not forced,10 it is largely immaterial to the question of discrimination . The relevant facts are brief and are mainly undenied.ii As set forth under section A, supra, Brackett and Kenily were reduced in seniority on March 18, not to the dates of their employment by the Company , but to the effec- tive dates of their transfers to Local 600, i. e., March 4 and 22, respectively . That re- duction had followed a heated controversy within Local 600 concerning the fact that Brackett and Kenily had been given "forced" transfers and seniority dates which ac- corded with their original driving dates as owner-operators . It also followed an about- face by Capp and Pat Neary, secretary-treasurer of the Union , who ruled that the transfers were in fact "voluntary." Brackett and Kenily testified to conversations with Capp and Neary and later with Hallerman which established the discriminatory motivation of the reduction in sen- iority and the Union 's hand in it. Thus, on March 22, Capp and Neary informed them finally that their transfers were voluntary, that Kenily's in fact had not been concluded, and that he was still required to pay certain dues and receive a Local 600 book. Kenily complied on the spot, and he and Brackett called Hallerman from the Union's office. Brackett, who talked first, testified that Hallerman informed him that, "The boys have really knocked you down" to the date of the transfer to Local 600 , and that he had no date for Kenily . Kenily then spoke with Hallerman and was told that he was "in bad shape" and that "they tell me that you have to be re-enrolled." When Kenily informed Hallerman that he was paying his dues that day, Hallerman replied that he would put Kenily on the seniority list "as of today." Kenily testified that the date, March 22, pencilled in, thereafter appeared on the copy of the list in Hallerman's office , and that it was the date under which he ran until the April 19 list was posted . Brackett testified that he had a further conver- sation with Hallerman 2 or 3 days later , and that Hallerman told him that the Union had directed Hallerman to put Brackett down as of the date he paid his dues and procured his transfer to Local 600 , and that that date would stand until Hallerman was told differently. Hallerman added, however, that he did not think the list would stand and that it would be corrected. There was other corroborative evidence which showed that the Company con- formed to the Union's direction in establishing those seniority standings. Kenily testified that Hallerman had informed him in February that the Union had directed him to put Kenlly in seniority as of the time he went to work for the Company as an owner-operator Paul Sheridan , the Union's steward, testified that during the course of a grievance meeting in May's office on or about February 22, reference was made to settling the question of Brackett's and Kenily's seniority, that May inquired of Capp, "Where do you want me to run them?" and that Capp replied that as they were 15 Under the terminal seniority plan which was in effect at Consolidated , seniority could be carried from one terminal to the other only if the driver's transfer was involuntarily, i e , forced Thus the "forced " and "voluntary" terminology seemed obviously misapplied in relation to the transfer of membership from one local to another. Yet the term "forced ti ansfer " was consistently used by the Union's representatives from January 18 to March 22 in all discussions relating to the transfer of Brackett 's and Kenily's membership 11 Robert Capp, business repiesentative of Local 600 , called by the General Counsel, proved a somewhat reluctant and eiasive witness To the extent that his testimony is in substantial conflict with that of Kenily, Brackett, and Paul Sheridan , the Union's steward, it has not been credited CONSOLIDATED FORWARDING COMPANY, INC. 369 in on forced transfers , their seniority should start on the day they went to work for the Company . The record also contains Capp's admissions that around March 18 to 22, May had called him and inquired whether the transfers were voluntary or forced, and May's admission that he had made the inquiry "Just as a matter of routine." 12 The foregoing evidence plainly establishes that Consolidated discriminated against Brackett and Kenily by lowering their seniority standings to conform to the dates, of their membership in Local 600, and that such discrimination was "upon the in- stigation of the union ." Radio Officers Union of the Commercial Telegraphers Union, AFL v. N. L. R. B., 347 U. S. 17, 52. Testimony by May as to the procedures which he followed or directed in the preparation of new seniority lists and as to Hallerman 's lack of authority to establish seniority standings is wide of the mark Indeed, May's testimony contained no satisfactory explanation of how ( under the Company's procedures as he explained them ) the date of March 4 could have been set up on the March 18 list as Brackett 's date of employment or of why no date appeared for Kenily . The inference is clear from all the evidence that the Company knowingly chose to use the dates of their union membership . Furthermore , Haller- man as dispatcher had full authority in the making of assignments , and the evidence is undisputed that he used the March 4 and 22 dates in dispatching the two men. Consolidated was responsible for those actions, which were obviously within the scope of his authority as dispatcher. The evidence thus shows that the Union applied its rules against Brackett and Kenily so as to cause discrimination by Consolidated in the making of assignments. That the employees involved were members of the Union does not gainsay that union- membership was thereby encouraged . Radio Officers Union of the Commercial Telegraphers Union, AFL v. N. L. R B., 347 U. S. 17, reversing N. L. R. B. v. Inter-- national Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of Amer- ica, etc, Local Union No. 41 , AFL, 196 F. 2d 1 (C. A. 8 ); N. L. R. B. v. International Union of Operating Engineers , Hoisting and Portable Local No. 101 of Greater Kansas City and Vicinity, AFL, 216 F. 2d 161 (C. A. 8). It is therefore concluded and found that during the period from March 18 to April 19, 1954, Consolidated discriminated against Biackett and Kenily within the mean- ing of Section 8 (a) (3) by reducing them in seniority to the dates of their respective memberships in Local 600 , and by making their assignments pursuant to such re- duced seniority . It is further concluded and found that Local 600 caused or at- tempted to cause Consolidated to discriminate against Brackett and Kenily as afore- said. It is further concluded and found that the aforesaid discrimination ended on April 19, when Consolidated corrected the seniority standings of Brackett and Kenily to conform to the dates of their employment. THE REMEDY Having found that Respondents engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and that they take certain affirma-- tive action designed to effectuate the policies of the Act as more fully outlined in the section below . I shall recommend, among other things, that Respondents jointly and severally make Brackett and Kenily whole for any loss of pay they may have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to that which he normally would have earned during the period from March 18 to April 19, 1954, had he been dispatched pursuant to his proper seniority standing , less his net earnings during such period. Although Respondents voluntarily ended the discrimination found herein by establishing proper seniority standings for Brackett and Kenily , the evidence showed a number of other instances in which Respondents had observed dates of union membership , rather than dates of employment by the Company , in establishing the seniority standings of employees . As the record indicates no abandonment of the practice except as to Brackett and Kenily , it will be recommended that Respondents. cease and desist from the unfair labor practices as found herein , and from any like or related conduct. 13 Theie was also testimony by Sheudan to a conversation with May shortly after March 21, during which May stated that the reduction of Kenily and Brackett in seniority was due to a decision "out of Chicago" by Jimmie FIoffa ( vice president of Teamsters ' Interna- tional ) May testified that what he told Sheridan was that there would be a decision out of Chicago ( by the joint council under the grievance piocedure), and he denied that lie mentioned Hoffa On this even balance of evidence it is concluded that Sheridan mis- understood the tenor of Rlay's reinaiks 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Respondent Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. By reducing Arthur G. Brackett and Patrick M. Kenily in seniority to the dates of their membership in Local 600, and by making their assignments during the period from March 18 to April 19, 1954, pursuant to such reduced seniority, Consolidated discriminated against them to encourage membership in said Union, and thereby engaged in unfair labor practices proscribed by Section 8 (a) (3) and (1) of the Act. 3. By causing and attempting to cause Consolidated to discriminate as afore- said, Local 600 engaged in unfair labor practices proscribed by Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 4. The aforesaid unfair labor practices having occurred in connection with the operations of Consolidated's business as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and substantially affect commerce within the meaning of Section 2 (6) and (7) of the Act. 5. Respondents have not engaged in unfair labor practices as alleged in the com- plaint except as found in Conclusions of Law, paragraphs numbered 2 and 3, supra. [Recommendations omitted from publication.] 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 encourage membership in Local 600, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, by reducing our employees in seniority to conform to the dates of their mem- bership in said Union, and we will not engage in any like or related conduct. WE WILL make whole Arthur G. Brackett and Patrick M. Kenily for any loss of earnings which they suffered as a result of the discrimination against them. All our employees are free to become, to remain, or to refrain from becoming or remaining members of the above-named Union, or any other labor organiza- tion, except to the extent that said right may be affected by an agreement in con- formity with Section 8 (a) (3) of the Act. CONSOLIDATED FORWARDING COMPANY, 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. APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL 600, INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL, AND TO ALL EMPLOYEES OF CONSOLIDATED FORWARDING COMPANY, INC. 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, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause Consolidated Forwarding Company, Inc., its officers, agents, successors, or assigns, to discriminate against its em- DEENA ARTWARE, INCORPORATED 371 ployees by reducing them in seniority to conform to the dates of their union memberhip , and we will not engage in any like or related conduct. WE WILL make whole Arthur G. Brackett and Patrick M. Kenily for any loss of earnings which they suffered as a result of the discrimination against them. LOCAL 600, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS , WAREHOUSEMEN & HELPERS OF AMERICA, AFL, Labor Organization. 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. Deena Artware, Incorporated and United Brick and Clay Work- ers of America, Affiliated with American Federation of Labor. Case No. 9-CA-44. April 01, 1955 SUPPLEMENTAL DECISION AND ORDER On October 25, 1949, the Board issued a Decision and Order in the above-entitled proceeding, finding, inter alia, that the Respondent had violated Section 8 (a) (3) of the Act by discharging more than 60 employees. The Board therefore ordered the Respondent to offer reinstatement to these employees and to make them whole for any loss of pay suffered as a result of the discrimination against them.' On July 30, 1952, the court of appeals handed down its decision en- forcing the Board's Order.2 Thereafter, on October 1, 1952, the court of appeals denied the Respondent's petition for a rehearing. The United States Supreme Court denied a petition for a writ of certiorari on March 9, 1953.3 'The Board' s Decision and Order and its Supplemental Decision are reported in 86 NLRB 732 and 95 NLRB 9. The Board 's Order, in relevant part, directed the Respondent to take the following affirmative action with respect to the discriminatorily discharged employees : (a) Offer . . . immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges ; (b) Make whole . . . for any loss of pay they may have suffered by reason of the Respondent 's discrimination against them , by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during the period from the date of his discharge to the date of the Respondent 's offer of rein- statement, less his net earnings during such period ; N L R B. v. Deena Artware, Inc., 198 F. 2d 645 (C. A. 6). On May 8, 1950, the Board filed in the Court of Appeals for the Sixth Circuit a petition for enforcement of its Order On August 11, 1950, the Respondent filed a motion to re- mand the case to the Board to adduce additional evidence. The court granted the Re- spondent's motion on October 12, 1950 Pursuant to the remand, a further hearing was held before a Trial Examiner, who issued a Supplemental Intermediate Report. The Board issued its Supplemental Decision on July 6, 1951 (95 NLRB 9 ), and thereafter filed a sup- plemental petition for enforcement of its Order. The decree of the court enforced the Board 's Order, granting reinstatement and back pay to 62 employees. ( The court's modi- fication of the Board's Order as to four additional employees is not relevant to this pro- ceeding ) S 345 U. S. 906. 112 NLRB No. 44. 369028-56-vol. 112-25