Eastern Massachusetts Street Railway Co.

208 , DECISIONS OF NATIONAL LABOR -RELATIONS - BOARD 740; cases. The answer of the Charging Party seems to, be that (1) it never has. approved the doctrine of those cited cases and (2) there is no written contract in this case as there was in those cases so that, therefore, the cases are inapposite. However, a man's employment can be effectively defined without the necessity of a written contract. If an owner does not choose to require an- employee to handle Swift products, then it would seem clear that -solicitation by the Union to the em- ployees not to handle Swift goods would not fit within the words of the statute. There would seem also to be merit in the Respondent's argument that its object in publicizing its dispute was to organize the salesmen-not to force Swift to deal with it- on behalf of the salesmen. The Union's letter of May 15, 1954, clearly corroborates the Union's position on this point. However, Respondent's argument that it had no object of forcing the employers to cease doing business with Swift does, not seem to be on very solid ground. For the reasons given heretofore the Trial Examiner finds that the Respondent has not since on or about September 23, 1953, engaged in,- and by orders, instructions, directions, appeals, bylaws, working rules, and other means induced and encouraged the employees of retail food establishments in and about St. Louis, Missouri, to en- gage in strikes or concerted refusals in the course of their employment to use, manu- facture, process, transport, or otherwise handle or work on any goods, articles, mate- rials, or commodities of Swift or to perform any services. Because of this failure of proof, he will recommend that this complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact, and upon the entire record in the- case, the Trial Examiner makes the following: CONcLusIoNs OF LAW 1. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL,, Local No. 88, is a labor organization within the meaning of Section 2 (5) of the- Act. 2. Swift and Company is engaged in commerce within the meaning of Section 2- (6) and (7) of the Act. 3. The aforesaid labor organization has not engaged in unfair labor practices. within the meaning of the Act. I - , Eastern Massachusetts Street Railway Company and Patrick W. Cox - Eastern Massachusetts Street Railway Company and - Amalga- mated Association of' Street, Electric Railway and Motor Coach Employees of America, AFL. Cases Nos. 1-CA-1.435 and, 1-CA-1515. July 26,1955 DECISION AND ORDER On April 20, 1955, Trial Examiner'Louis Plost issued his Inter- mediate- Report in the above-entitled proceeding, finding that the- Respondent had engaged and was engaging in certain unfair labor- practices within the meaning of Section 8 (a) (1), (3), and, (4) of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth`in the'copy of the Intermediate Report attached hereto. The Trial- Examiner also found that the Re- spondent had not engaged-in certain other alleged unfair labor prac- tices and recommended that the complaint be dismissedwith respect to, such allegations. Thereafter, exceptions to the Intermediate Report and briefs were filed by the Respondent, the Charging Parties, and the General Counsel. 113 NLRB No. 36. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 299 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 Intermedi- ate Report, the exceptions and briefs , and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications : 1. Like the Trial Examiner, we are not convinced that the Gen- eral Counsel sustained his burden of proving that the Respondent was discriminatorily motivated in disciplining Cox on March 24, 1953, in view of the fact that Cox had worn a uniform coat "in rags" while oper- ating a bus, and the further fact that the division manager testified without contradiction that Cox was disciplined for that reason. How- ever, the Trial Examiner failed to give adequate regard to the alterna- tive theory advanced by the General Counsel and the Charging Par- ties, and heretofore approved by the Board in an earlier case against the Respondent.' This theory is that the discipline in fact meted out by the Respondent , being far more stringent because of discriminatory considerations than would otherwise have been exacted, was to that extent discriminatory. In the earlier case, for example , one employee was in effect dis- charged for violating a rule against an unexcused absence; another, for violating a rule against interviewing witnesses to an accident; an- other, for violating a rule requiring a full stop before a railroad cross- ing; and another, for violating a rule against permitting free rides. We found that the Respondent would have reinstated each of these em- ployees after a suspension of not more than 10 days if the employee had prosecuted a grievance, as the Respondent did for similar infractions when other employees prosecuted grievances; but that at the same time the Respondent made it clear that grievances would be entertained only from the representative it had imposed on the employees against their will, and not from the genuine collective-bargaining representa- tive freely chosen by a majority in the appropriate unit. We accord- ingly concluded that the Respondent violated the Act by suspending these employeess for more than 10 days. On the other hand, the Re- spondent suspended 3 other employees for periods of 10 days or less for similar rule infractions , and we therefore found that the Respond- ent did not thereby violate the Act. The Respondent's normal practice in disciplining an employee for a wide variety of infractions, as shown in the record of this and the earlier case, was to suspend the employee for not more than 10 days. In the present case, Manager Markham admitted that after the dis- charge he told Cox lie would entertain a grievance respecting the discharge. However, the parties stipulated that the Respondent's position with respect to entertaining grievances was unchanged since 1 110 NLRB 1963 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the earlier case. We thus find that the Respondent would have enter- tained a grievance from Cox, but only if presented by the representa- tive selected by the Respondent, and not if presented by the legitimate representative to which Cox adhered. Moreover, a personnel card in evidence shows that another employee (Joslyn) was discharged for serious repeated money shortages, after a warning; yet when he prosecuted a grievance through the representative selected by the Respondent, the discharge was reduced to a suspension of 2 days. We therefore find it difficult to believe that Cox' summary discharge for wearing a shabby uniform, without any prior warning on that score although that was the usual and customary practice, would not have been changed to a suspension of 10 days or less if he had bowed to the Respondent's position as to the labor organization which should represent its employees. Applying the alternative theory approved in the earlier case, we find that the Respondent unlawfully discriminated against Cox by suspending him on March 24, 1953, for more than 10 days.2 2. We agree with the Trial Examiner that the Respondent violated Section 8 (a) (3), (4), and (1) by discharging McLean. We shall modify the Trial Examiner's recommendations by adding an appro- priate clause with respect to the section 8 (a) (4) violation. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Eastern Massachusetts Street Railway Company, Boston, Massachusetts, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL, or any other labor organization of its employees, or encourag- ing membership in Local Division 280, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America (known as the Lowell Local), or Transit Workers Local No. 1, or any other labor organization of its employees, by discharging or in any other manner discriminating against any of its employees in regard to hire or tenure of employment or any term or condition thereof because of their union membership or activity, or because of their testimony before the Board, or because charges in their behalf have been filed with the Board. 2In accordance with our customary practice where the Intermediate Report does not recommend reinstatement of an employee who we find was the victim of discrimination, Cox' back pay is tolled from the date of the Intermediate Report to the date of this Deci- sion and Order . Clearfield Cheese Company, Inc ., 106 NLRB 417. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 301 (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Patrick W. Cox and Archie T. McLean immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by reason of the discrimination against them, in the manner set forth herein and in the Intermediate Report attached hereto. (b) Upon request make available to the Board or its agents, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and reports, and all other rec- ords necessary for a determination of the amounts of back pay due under the terms of this Order. (c) Post at all its offices and terminal garages copies of the notice attached hereto and marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof and maintained by it for a period of at least 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 to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the First Region in writing, within ten (10) days from the date of this Order, what steps the Re- spondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the Respondent violated the Act in any other respects than herein found. MEMBER RODGERS took no part in the consideration of the above Deci- sion and Order. 3In the event that this Oider is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order 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 : 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer to Patrick W. Cox and Archie T. McLean imme- mediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered by reason of our discrimination against them. WE WILL NOT discharge or in any other manner discriminate against any of our employees because of membership in or activity on behalf of Amalgamated Association of Street, Electric Rail- way and Motor Coach Employees of America, AFL, or because of charges filed or testimony given under the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the rights guar- anteed in the Act, except to the extent that they may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL, or any other labor organization, except to the extent that this right may be affected by an agreement executed in conformity with Section 8 (a) (3) of the Act. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY, Kt ployer. 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. INTERMEDIATE REPORT STATEMENT OF THE CASE It having been charged on April 1, 1953, by Patrick W. Cox, Lowell , Massachu- setts, that Eastern Massachusetts Street Railway Company , Boston, Massachusetts, herein called the Respondent , had engaged in and was engaging in certain unfair labor practices affecting commerce , as set forth and defined in the National Labor Relations Act , as amended, 61 Stat. 136 , 29 U. S. C., Supp. I, Sec. 141, et seq., hereinafter referred to as the Act, the General Counsel i of the National Labor Relations Boai d on behalf of the Board , by the Regional Director for the First Region designated by the Board 's Rules and Regulations (Series 6 , as amended , Section 102.15), issued a complaint on June 17, 1953, docketed as Case No. 1-CA-1435, alleging certain unfair labor practices by the Respondent. Thereafter a charge alleging that the respondent had engaged in certain other unfair labor practices was filed by Amalgamated Association of Street, Electric 1 3 The complaint herein was issued while Mr. George Bott held the office of General Counsel Before the hearing was closed Mr Bott 's terin of office had expired No new General Counsel was appointed during the course of the hearing As a matter of form the attorney repiesenting the General Counsel 's office is referred to herein as "General Counsel " EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 303 Railway and Motor Coach Employees of America, AFL, herein called the Union, on August 13, 1953, and docketed in the First Regional Office as Case No. 1-CA- 1515. The said Regional Director issued a complaint on September 4, 1953, al- leging that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act. Likewise on September 4, 1953, the said Regional Director issued an order con- solidating Cases Nos. 1-CA-1435 and 1515 for purposes of hearing. Due notice was given all parties. No consolidated complaint was issued The complaints in Cases Nos. 1-CA-1435 and 1-CA-1515, with respect to the unfair labor practices, allege in substance that on March 24, 1953, the Respondent discharged Patrick W. Cox and on June 10. 1953, discharged Archie T. McLean, and thereafter has iefused to reinstate each of them for the reason that they adhered to or assisted the Union or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or because they refused to join or assist an organization known as the Transit Workers, and for the further reason that they filed charges or gave testimony under the Act and further allege that the Respondent engaged in other unfair labor practices violative of the Act. The conduct of the Respondent is alleged to be violative of Section 8 (a) (1), (3), and (4) of the Act. The Respondent duly filed an answer in which it denied that it had engaged in any of the alleged unfair labor practices. Pursuant to notice a hearing was held at Boston, Massachusetts, October 8 and 9, 1953, and February 9 and 10, 1955, before Trial Examiner Louis Plost. The office of General Counsel, the Union, and the Respondent were represented by counsel, each being hereinafter referred to in the name of his principal. The parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to argue orally on the record, and to file briefs and/or proposed findings of fact and conclusions of law with the Trial Ex- aminer A date was set for the filing of briefs. The parties aigued orally at the close of the hearing. The Trial Examiner granted a motion by the General Counsel to conform all pleadings to the proof with re- spect to dates, spelling, and like minor variances. Briefs have been received from all parties 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 The General Counsel and the Respondent stipulated: Eastern Massachusetts Street Railway Company, a Massachusetts corporation with its principal office at Boston, Massachusetts, is engaged in the transporta- tion of passengers by motor bus in and between communities within the Com- monwealth of Massachusetts and in and between communities outside the Com- monwealth of Massachusetts. In the course of its operations, the Company provides public bus transportation service for approximately 75 cities and towns within the Commonwealth of Massachusetts and carnes a substantial number of passengers to and from work for firms engaged in interstate commerce. Its gross revenues are currently running at an annual rate of about $9,000,000, of which a negligible percent is derived from furnishing interstate bus service on a daily trip from Taunton, Massachusetts, to Providence, Rhode Island, and from Charter rights which cover Massachusetts, Connecticut, New Hampshire, and Rhode Island and on which the Company runs infrequent service out of Massa- chusetts. The Company admits that it is a substantial user of gasoline, tires, and buses, some of which are purchased and transported in interstate commerce from and through various States of the United States other than the Common- 3 The heaung closed on Febi nary 10, 1955 The Trial Examinee set the time for filing briefs to be not later than .llaich 1 On requests made by the Respondent to the Chief Trial Examinee in accordance with the Board's Rules, the Associate Trial Examiner, act- ing for the Chief Trial Examiner, extended the time for filing, first to .March 21, then to April 4, and finally to April 18 One of the reasons for the requested extension was that the transcript had not been received The final copy of the transcript was received in the Board's Washington Office on March 14, 1955 The Respondent averted that on March 31, it had not yet i eceived the transci ipt 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wealth of Massachusetts. The Company uses $500,000 of gasoline annually, all of which is purchased locally in Massachusetts.3 II. THE ORGANIZATIONS INVOLVED Amalgamated Association of Street , Electric Railway and Motor Coach Employees of America, AFL, is a labor organization admitting employees of the Company to membership: The General Conference Committee of Boston , affiliated with Amalgamated Asso- ciation of Street, Electric Railway and Motor Coach Employees of America, AFL, is a labor organization participated in by employees of the Company. III. THE UNFAIR LABOR PRACTICES A. Background : case continued Upon separate charges filed by the Union and others alleging unfair labor practices on the part of the Respondent 4 the Regional Director for the First Region issued a complaint on such charges, consolidated for hearing, dated December 22, 1952. A hearing was held on said complaint before a duly designated Trial Examiner, Febru- ary 16 to March 24, 1953 . The transcript of said hearing consists of more than 1,800 pages of testimony and numerous exhibits . The Trial Examiner who heard the matter issued his report September 18, 1953. The report discloses that conduct upon which findings of unfair labor practices were made was in some manner related to a strike of the Respondent's employees which began March 10 and ended July 15, 1952. As herein stated the hearing in the instant matter was opened October 8, 1953. Shortly after the General Counsel's first witness was called to testify it became apparent that the General Counsel was seeking to introduce evidence with respect to the strike, heretofore referred to, and to present facts which had been fully litigated in the previous cases herein mentioned. The Trial Examiner thereupon called a private conference with all the parties. After the conference, the hearing was resumed and the Trial Examiner made the following statement on the record: Trial Examiner PLOST: On the record. Let the record show that the Trial Examiner called the off-the-record discussion for the purpose of conference with the attorneys for all the parties, that such conference .was privately held. The Trial Examiner stated at the conference that it had become apparent to him that the General Counsel and the Union-that the General Counsel would make an attempt to introduce into this record all of the testimony which had been previously adduced at another hearing which had been tried under the num- ber of 1-CA-1390 and other numbered cases consolidated and upon which an intermediate report had been issued by a Trial Examiner some time this month. That the parties informed the Trial Examiner during the conference that this record consisted of some 1800 pages, and the Trial Examiner-and the General Counsel stated that he felt he would call the same witnesses to testify to the same facts in order to set up the background necessary to sustain his complaint in the instant matter. The statement then says that a suitable stipulation on the necessary facts in the transcript of the former case could not be made and continues as follows: It seems that this procedure in this case had resulted in producing a situation which would inevitably produce endless litigation not in the public interest. By "endless litigation" I mean endless producing of the same evidence over and over again, for example should it appear next week after this case has been tried and all the witnesses have been called and the previous matter to which I have referred under the number of 1-CA-1390 and other numbered cases had been relitigated in effect, and the Company then next week, as I say, found it necessary to discharge another individual who had been named in this previous case, then it would become necessary to relitigate and rehear all of the evidence that had previously been taken twice, etc., ad infinitum. In the interest of orderly procedure, the Trial Examiner stated that he did not believe that this method should be followed. 3 The Board asserted jurisdiction over the Respondent in the Eastern Massachusetts Street Railway Company case reported in 110 NLRB 1963. 4 Eastern Massachusetts Street Railway Company, 110 NLRB 1963. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 305 The Respondent objected to any continuance on the ground fnat it meant "a denial of a speedy and expeditious disposition." The General Counsel then made the fol- lowing statement and motion: Now, these theories of mine may not be correct. In any event, they depend for their facts or they depend in order to be sustained, upon 1800 pages of testi- mony that have already been introduced in a prior case and that have already given rise to findings by a trial examiner. That case took three and one-half weeks. I, too, think it is not in the public interest to repeat that testimony and to impose upon the respondent the expense of such a lengthy proceeding again, which, as you so wisely pointed out, may only be repeated again in the event that someone else of these individuals files a charge and we discover or we agree or find that there had been discrimination. Because of all these things and because of the testimonial difficulties involved, because of that fact and because there seems no way of trying this case with fairness to the discriminatees involved and to the Company, I might say, with- out introducing all this prior testimony, I move to continue this case until such time as the Board has passed down its decision in Case No. 1-CA-1390, of which at that point you can take judicial notice, and that, therefore, the tran- script in that particular case will not have to be repeated. The Trial Examiner then continued the matter indefinitely subject to being re- opened on notice. The Board issued its Decision and Order in the Eastern Massachusetts Street Rail- way Company case, 110 NLRB 1963, on December 16,1954. Upon agreement of all the parties the Trial Examiner reopened the hearing in the instant matter on February 9, 1955. The gravamen of the complaints (consolidated for hearing) in the instant matter, I-CA-1435 and 1-CA-1515, is that the Respondent discharged Patrick W. Cox on March 24, 1953, and Archie W. McLean on June 10, 1953, in violation of Section 8 (a) (3) and (4) of the Act .5 In the complaint in the Eastern Massachusetts Street Railway Co. case, decided December 16, 1954, hereinafter called "former cases," both Cox and McLean were alleged to be discriminatees, by disciplinary layoff, in violation of Section 8 (a) (3) and (4). In his Intermediate Report and Recommended Order the Trial Examiner who heard the former case found: Cox's name appeared as an alleged discriminatee for the first time in the amended charges filed by the Association in Case No. 1-CA-1287 on September 16, 1952. His name was also on the Association's second amended charges in that case, filed November 20, 1952. Significantly, the charges filed in Case No. 1-CA-1390 by the GCC on January 30, 1953, were signed by Jesse Levin, its secretary-treasurer. Service of these charges was effected upon the Company on January 31, 1953. These charges alleged that the Company had unlawfully dis- criminated against 13 employees because "of their activities on behalf of the charging labor organization, and for the further reason that they filed Charges under the Act, or that Charges in their behalf were filed under the Act." In respect to Cox, the charge alleged that the Company had illegally disciplined him and MacLean on frequent occasions "because of their activity in behalf of and adherence to the charging labor organization, and for the further reason that they filed Charges under the Act, or that Charges in their behalf were filed under the Act." With respect to Cox and McLean the Board in its Decision and Order found: .. . we are not satisfied that the record as a whole supports the inference, urged by the General Counsel and made by the Trial Examiner, that the Com- pany in disciplining them was motivated by union animus rather than, as the Company asserts, just cause. Thus . . . Cox was absent from work and was suspended for a day; and he later engaged in certain working-rule irregularities and was suspended for 2 days. McLean also engaged in certain rule infractions and was suspended for 5 days ; and later he engaged in similar infractions and was suspended for 10 days. 5 As herein found, the report of the Trial Examiner in the Eastern Massachusetts Street Railway Company case, 110 NLRB 1963, was issued September 18, 1953. The charge in 1-CA-1435 ( Patrick W Cox) was filed April 1, 1953. The charge in 1-CA-1515 ( Archie McLean ) was filed August 13, 1953. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board in its Decision further found: A subsidiary aspect of this case is the charge that the Company unlawfully discriminated against 11 employees, 8 in Lowell Division and 3 in the Haverhill Division, because of their activities on beh;iIf of the Association. As to the 8 Lowell employees, a 2-fold discrimination is charged: first, in the discharge or suspension of each employee, and second, in the Company's insistence that they process the resulting grievance through the Lowell Local or its successor, the Transit Workers, rather than the Association. The Board found that the Company's very re:ognition of the Lowell Local as a bargaining agent for the Lowell employees was a violation of its statutory duty to bargain only with the Association, and therefore it necessarily followed that insist- ence upon any particular employee's cooperation in this unlawful objective of the Company was a further encroachment upon his right to utilize the services of the exclusive bargaining representative. The Board further held as to Cox and McLean As for the other Lowell employees (Cox, McLean, and Halloran), they were suspended for definite periods from 1 to 10 days for their various infractions. The record shows only that definite suspensions were sometimes reduced on appeal; it fails to establish that the particular suspensions here involved would have been reduced at all. In these circumstances we are not satisfied that these employees were discriminated against when the Company took the position that it would entertain grievances only from the Local.13 'Member Murdock disagrees that they were not discriminated against , but in view or the detebminatmn above that 10-day suspensions would be treated as reasonable, no i emody would follow B. The discharges 1. Patrick W. Cox-l-CA-1435 Thomas F. Markham, manager of the Respondent's Lowell Division, testified he discharged Patrick W. Cox on March 24, 1953, "as a result of a report I received on his uniform." Markman read a personnel card on Cox into the record and testified the card stated the cause of Cox's discharge. The card read: On Friday, March 20, 1953 on your 1:34 p. in. trip to North Chelmsford, you have been reported as having your badge number hidden under the brim of your cap. Your uniform was in rags. The sleeves, elbows, pockets and linings were tattered and torn. In short, the report states your appearance was "disgraceful." On September 11, 1952, December 12, 1952 and January 16, 1953, you were warned about your uniform. Your record also shows you were warned before the above dates as to your number not being visible. On January 16, 1953, you signed your card and was suspended for 2 days. You were told then that you were not going to be spoken to any more re- garding your infractions. On Thursday, September 12, 1952, I had you in my office and talked to you about your uniform, badge number, etc. You were spoken to, warned and signed your card. You claimed that your hat, badge, changer and number were stolen from the office in the waiting room. I took your claim to be the truth and issued you a complete set of equipment. You have been warned, spoken to, reprimanded and suspended. You leave me only one final move to make. You are discharged March 24, 1953. Markham further testified that on March 20, 1954, he received a report from a company inspector regarding the condition of Cox's uniform but testified he could not "truthfully say" whether he spoke to the inspector before he discharged Cox. Markham admitted that the card, including the statement that Cox was discharged, was completed before he interviewed Cox. The incidents referred to on the card as occurring September 11 and December 12, 1952, and January 16, 1953, are all discussed in the Trial Examiner's Inter- mediate Report of September 18, 1953, herein referred to. The incidents are dis- cussed in detail; were the subject of testimony and were the grounds for the sus- pensions which were alleged to be discriminatory in the former Eastern Massa- chusetts Street Railway Company case. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 307 Markham testified that Cox had been warned about his shabby uniform prior to March 24, 1953, but when pressed for specific details referred to the above-men- tioned incidents as being found to have been caused by Cox's ragged uniform, which is not the fact. It was painfully apparent that Markham was deliberately stretch- ing the truth in an effort to create the impression that Cox had been warned on several occasions regarding his wearing a ragged, unsightly, and disgraceful uniform but the attempt failed. Markham finally testified that the inspector's report which is dated March 20, 1953, and formed the proximate cause for the discharge was the only report regarding the shabby condition of Cox's uniform he had ever seen. Markham testified further that he had personally seen Cox in a "disgraceful" uniform and had talked to him about it testifying that on September 11, 1952, he told Cox "to get himself squared away as far as his uniform and his badge and everything else was concerned" and that he also had similar discussions with Cox on January 12 and 16. However he admitted that these were the incidents found in the previous case, none of which deal with ragged or shabby clothing. Markham also admitted that he never made any notation on the personnel card record kept on Cox by the Respondent regarding the condition of Cox's uniform or the repri- mands allegedly made regarding it. Patrick W. Cox, who, as hereinbefore found, was one of the alleged 8 (a) (3) and (4) complainants found not to have been discriminated against in the previous Eastern Massachusetts Street Railway Company case, testified that at about 1 p. m. of March 24, 1953, Foreman Paul Tremblay telephoned him and told him that he (Cox) was discharged as of that day; that Tremblay gave no reason for the dis- charge, that Cox then went to the Respondent's office but was unable to see Markham, who was reported out; that the "office girl" gave him a card to read, as the explanation of his discharge; that the card made no detailed reference whatever to the violations and reprimands of September and December 1952 and January 1953 as read into the record by Markham and referred only to the shabby uniform he wore on March 20, 1954. Cox testified' TRIAL EXAMINER: And it is your testimony that Mr. Markham did not show you that card or give it to you? The WITNESS: No, sir, positively did not. We wasn't on the property at that time. TRIAL EXAMINER: And it's your testimony that Mr. Markham didn't talk to you? The WITNESS' That's right, sir. In his testimony, Markham at no time categorically stated that he discharged Cox. His answers were framed to create the impression that he felt that he personally dis- charged Cox but did not actually recall it. For instance he testified: Q. Did you have a conversation with Mr. Cox at the time you discharged him? A. I believe I did, yes. Q. Did you call him into your office? A. I believe I did. Q. Did you talk to him about what was entered on this card? A. I believe I did. Q. Do you remember when that was? A. It must have been March 24, 1953. Markham further testified: Q. Now, is it your testimony that after preparing this card upon which you made the entry, "You are discharged March 24, 1953," after preparing a card in which you had stated that you were discharging the employee, you then called him in and talked to him personally about the matter? A. I believe that's the procedure. Yes, I believe I did. C C C C C C C Q. And do you recall the conversation you had with him? Tell us your best recollection of what you said and what he said. Was anyone else present? A. That I don't recall. I don't know offhand. Q. Will you tell us who said what and to whom9 A. Well, I believe I sent for Cox, and he came to my office, and I discussed this report that I had with him, and told him that he left no alternative for me other than to discharge him, that he had been spoken to, talked to, reprimanded, suspended. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Markham's testimony with respect to Cox's uniform did, however, close as follows: Q. But you have a distinct recollection of a conversation with him some time after this card was prepared? A. Yes. Q. There's no doubt in your mind about it? A. That's right. Tremblay was not called, however a statement was made by the Respondent that Tremblay was no longer employed by the Respondent and was not available. No further explanation was made. The Trial Examiner is mindful that the Trial Examiner 's report in the former Eastern Massachusetts Street Railway Company case which finding was adopted by the Board in its Decision and Order , contains the following finding: 41 For many years , the contract between the Association and the Company has contained the following provisions set forth in the latest agreement executed in 1950: If any employee has gone nine (9) consecutive months without error, his record shall be considered clear , and if it is not clear, his record shall be considered from the last nine (9) months clear period, and in no event shall a man's record be considered for a longer period than eighteen (18) months prior to the suspension or discharge. The Trial Examiner is at a loss to understand why at the time of Cox 's discharge Markham would advert to previous derelictions by Cox as a cause for his discharge, knowing that Cox's record was "clear" by the contract provisions , if he actually dis- cussed the matter with Cox and actually personally discharged him. Upon the entire record, the evidence considered in its entirety , and his observa- tion of the witnesses the Trial Examiner is fully convinced that Cox's version of his discharge is the accurate account thereof and credits his testimony with respect thereto.6 Cox testified that on January 16, 1953, his uniform coat was torn and he left it with his wife to repair, in this way explaining his being out of uniform on that day; that thereafter he wore the coat at work each day until his discharge ; that during this period no supervisor remarked on its condition ; that during this period Mark- ham saw him in the coat and did not say anything to him regarding its appearance; that he was in Markham 's office 3 days prior to his discharge and spoke to Mark- ham, who said nothing about the coat Cox was wearing which was the garment in question. Cox testified he bought the coat "new" some 18 or 20 months before his dis- charge; admitted the coat was too heavy to wear during the summer months; testi- fied he wore it from September 1951 to March 1952, did not wear it during the strike, and resumed wearing it in September 1952 and so continued to March 24, 1953, but claimed 15 months ' actual wear of the garment. The coat was paid for by weekly payroll deductions Markham testified that the Respondent's records show no deductions for payment for a uniform coat for Cox except from March to May 1947, approximately 6 years before Cox's discharge. The General Counsel offered the coat in evidence . Instead of admitting the gar- ment as an exhibit the Trial Examiner by agreement of the parties made the follow- ing statement on the record regarding the garment's condition. TRIAL EXAMINER : The coat handed to the Trial Examiner, which he now has before him, is of heavy-not being an expert in cloth-I would say it is a whipcord cloth similar to the officer's uniforms of the first world war; that the color of the uniform is practically the color of a uniform of the U. S. Marine Corps, namely, an olive green; that the uniform coat, which I have before me, has brass buttons on it, the buttons bearing the legend, Eastern Massachusetts ; that one of the brass buttons which fastens the coat, the top brass button , is apparently missing; that the right sleeve of the jacket or coat which I have before me , is patched in three places; that the right sleeve is also frayed and worn and has at one time apparently been sewed up to repair the frays at the bottom of the sleeve ; that the left sleeve is also patched in one place; and that the interior of the sleeve has been repaired by a piece of cloth sewed on to the bottom of the sleeve , making it appear as a cuff on that side; O At other points in this report the Trial Examiner discredits Cox's testimony The undersigned does not however believe that certain findings of incredibility destroy all of Cox's testimony. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 309 that the pockets, which are outside patch pockets, the lower ones have been repaired , and that the repairing shows, that the bottom of the coat is frayed; that the edges of the coat are frayed; that the lining in the left sleeve, the in- terior is gone-there is lining, however, in the right sleeve; that the interior of the coat shows tears on the lining, which, of course, this tear and the tear on the sleeve would not be visible if the coat were worn, buttoned, or even partly buttoned , that the collar has been torn and repaired , and that the repairing is visible; that the garment, in its entirety, can best be described as well worn, but, if necessary, serviceable as a garment . I'm not passing on whether it is serv- iceable as a uniform to be worn to either impress the passenger with the au- thority of the wearer, or with the dignity and importance of the people whom he represents while wearing this uniform. From his examination of the coat offered as Cox's uniform coat the Trial Ex- aminer is of the opinion that the garment must be a great deal older than claimed by Cox. Although the Trial Examiner made no finding on the record as to his impression regarding the garment he will now state that in his considered opinion the garment Cox testified he woie is not "serviceable as a uniform to be worn to either impress the passenger with the authority of the wearer, or with the dignity and importance of the people whom he represents while wearing this uniform." Concluding Findings as to the Discharge of Patrick W. Cox The Trial Examiner is convinced and finds that the only matter which entered into the Respondent's discharge of Patrick W. Cox as a cause thereof was the fact that he was reported as wearing a "uniform coat in rags, at sleeves and elbows and pockets and lining " 7 The General Counsel contends this assigned cause was a mere pretext. Although the Trial Examiner does not credit Markham's testimony to the effect that he personally warned Cox regarding the condition of his coat, and although Markham admitted that the usual and customary warning given an employee in a shabby uniform to get another was not given to Cox, and Markham's testimony with respect to the payroll deductions for Cox's coat is not probative evidence, still, the uniform coat which Cox testified he wore showed that the inspector's report was correct. The General Counsel apparently sought to prove the 8 (a) (4) allegation by the following testimony: Q. You did feel Cox had lied on the witness stand in the prior case , didn't you? A. Yes, I believe he had. The Union argued that admitting the poor condition of Cox's uniform would not have caused his discharge: Were it not for the fact that he had testified , as the Board found in the previ- ous case, in a manner that diametrically opposed what Mr. Markham had testi- fied to, and Mr. Markham didn't like it, and he didn't like it before Mr. Cox testified, and that is why he was discharged. As reported herein the Board did not credit Cox and found that the Respondent had not discriminated against him. To accept an argument such as put forward by the General Counsel and the Union would only go to sustain a theory that any subsequent discharge of an employee who has filed a charge with the Board, no matter if groundless, or who has testified in a hearing , credibly or not, constitutes a violation of Section 8 (a) (4) of the Act. This is quite different from the holding in Richmond Home Telephone Company, 70 NLRB 455, cited in the General Counsel's brief, namely: "An employer is prohibited under Section 8 (4) of the Act from discharging an employee for filing charges with or testifying before the Board even though they are false." The General Counsel announced the theory of his case to be: Our case, that is, the allegation that these two individuals have been discrimi- natorily discharged , depends upon two theories : one, that the cause for discharge was a pretext; secondly, that because of the execution of a contract with a so- called Lowell Union in Lowell and the imposition by the Company of the resort to grievance procedure only through that local , and not through a union 7 See General Counsel's Exhibit No. 4. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the 8-3's own choosing, such imposition was illegal, and that, therefore, whatever resulted to them was also illegal. Apparently in support of the alternate theory Cox testified that on Memorial Day following his discharge he met Markham on the street, told Markham he wanted to file a grievance regarding his discharge, was told by Markham to contact the Union found by the Board in the former case to have been illegally recognized by the Respondent, and further told by Markham that Cox "was entitled to a hearing, and if you want to represent yourself you can." Markham admitted holding a conversation with Cox on Memorial Day, but testi- fied that he told Cox merely that he could process his grievance himself or be repre- sented by any one of his choice. As more fully discussed herein in connection with the General Counsel 's brief the Trial Examiner does not find it necessary to resolve any conflict in the two versions. On the entire record the Trial Examiner finds that the General Counsel has not adduced such evidence as will sustain the contention that Cox was discharged in violation of the Act and he will therefore recommend that the complaint be dis- missed insofar as it alleges the Respondent discharged Patrick W . Cox in violation of the Act on March 24, 1953. 2. Archie T. McLean-1-CA-1515 Archie T. McLean was discharged by the Respondent June 10, 1953. Manager Markham testified that he discharged McLean because on June 5 he failed to collect fares from two passengers. The Respondent admits that the uncollected fares amounted to 9 cents each. With respect to McLean's discharge, Markham testified as follows: On June 5, 1953 , Operator McLean was operating a bus between the cities of Lowell and Lawrence on a scheduled trip of 4:55 a in. Leaving Lowell, two passengers boarded his bus at Glen Forest and paid their fare by a 24-ride weekly ticket. This fare entitled them to ride to the Lawrence traffic center. McLean, on this particular trip, continued on beyond the Lawrence traffic center to what is known as the Wood Mill, which requires an additional fare to ride to that point, and McLean failed to collect the additional fare from these passengers from the Lawrence traffic center to the Wood Mill. Markham further testified that he received the report of McLean's failure to collect the two 9-cent fares on June 5, made no check to verify the charge but called in McLean for an interview which he closed by discharging him. With respect to the above-mentioned interview Markham testified: I told McLean that I had received a report that he was allowing passengers to ride on his 4.55 a. m. trip on Friday, June 5, 1953, from Glen Forest to the Wood Mill for one punch in a 24-ride weekly ticket, and I asked him if it were true if he were doing that, and he said it was . I asked him if he realized the seriousness of the offense of allowing passengers to ride free , and he said, Yes, he did. He was aware of it. And then I believe McLean said to me that a passenger could ride through from Glen Forest to the Wood Mill for one punch in a weekly ticket , and I asked him where he had obtained that rule or informa- tion, and he said he had got it from Foreman Trimblay. I asked him if he had read a notice that I had posted on August 12, 1952, pertaining to just this particular operation of fare collection , and I don't believe he told me whether or not he had. I think he said that he was familiar with all notices or that he does make it a practice to read them and so on, but he couldn't say definitely whether he had read that one or not. Markham admitted that McLean had been in the employ of the Respondent for 21 years, and had never before been charged with failure to collect proper fare from a passenger 8 The record also shows that McLean had held a supervisory job with the Respond- ent from 1941 to 1949. Archie T. McLean testified that he had been operating the run from Lowell to Lawrence since April 1953; that this route was to the Lawrence Traffic Center and then on to Wood Mill; that enroute to Lawrence Traffic Center all passengers paying cash fares were issued identification checks which were collected at the points they McLean had been charged with not punching a ticket some 13 years before. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 311 left the bus except that no checks were collected at the Lawrence Traffic Center; that in addition to cash fares the Company also sold weekly commuter tickets which were punched by the bus operator. McLean further testified that he had two unusual experiences involving the value of weekly tickets to Wood Mill, a stop beyond the Lawrence Traffic Center. The Company's rule was that a passenger who had paid a 15-cent cash fare to Lawrence Traffic Center was entitled to continue on to Wood Mill without further payment. McLean testified: My first experience was the week before I was discharged. I was going into Lawrence, and I made a stop, and I picked up this man, and he presented me with a weekly ticket which I punched. He then requested a check to take him to the Wood Mill, and I told him that he wasn't entitled to a check, but he told me that he was, that he had called the Eastern Massachusetts office, and they told him that he could get a check with a punch on a weekly ticket over to the Wood Mill. So rather than have an argument with the passenger, I said to him, "Would you please put your name and address down," and I presented him with a check to Wood Mill. That was my first experience. According to McLean the following morning he asked Foreman Tremblay "if a passenger was entitled to a check on a weekly ticket that would take him to Wood Mill" beyond the Lawrence Terminal Center and that Tremblay told him "yes that a punch on a weekly ticket was the same as a 15-cent fare." McLean testified that the following Monday he had a similar experience with a different passenger, and further testified that on June 9 he was notified by telephone not to report for work the following day but to report to Markham's office which he did. McLean testified: When I went in, Manager Markham said to me, "What is the fare from Glen Forest to the Wood Mill on a weekly ticket9" And I said, "One punch." And he said to me, "What gives you that idea?" And I said, "Well, because one punch is equivalent to a 15 cent fare." So he then handed me a sheet of paper which is this exhibit. The document referred to was a bulletin dated August 12, 1952, which read inter alias Any passenger paying a fare by a 24 ride weekly ticket . . . must pay an- other punch to go to Wood Mill. McLean testified he was absent on vacation on August 12, 1952, did not return until August 20 and had never seen the document until Markham handed it to him. McLean continued the account of his discharge as follows: That's what I read, and that's the first time I read it, and I said to him, "Well, it's funny, only last week I was told by the foreman that punching a weekly ticket was equivalent to 15 cents." He said to me, "What foreman told you that?" I said, "Foreman Tremblay." He said to me, "Well, when you turn in your equipment that belongs to the Company, we'll pay you off." Q. (By Mr. Kowal.) Was that the end of the conversation? A. That was it. Markham testified that he discharged McLean before he checked with Tremblay because he did not believe McLean was telling the truth.9 Tremblay, as has been found herein, was not called. The Trial Examiner credits McLean and finds that Foreman Tremblay told Mc- Lean that additional punches need not be made on commuter tickets punched to Lawrence Traffic Center if used to Wood Mill beyond the Center. Markham admitted he did not raise McLean's previous record of infraction of rules at the time of the discharge but only discussed McLean's failure to collect the two 9-cent fares. Markham further admitted that McLean had not violated any of the Respondent's rules for at least 4 months prior to his discharge. 'The Tual Examiner iefused to take testimony by Markham to the effect that he inter- viewed Foreman Tremblay after McLean's discharge and rejected an offer of proof to the effect that Ti eniblay in such interview denied McLean's statement. 379288-56-vol. 113-21 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner in the former Eastern Massachusetts Street Railway Company case found in his report, which was adopted by the Board, that McLean participated in the strike and that: On July 7, 1952, O'Brien [international vice president of the Union] ap- pointed McLean as his assistant in directing the affairs of Local Division No 280 and thereafter McLean was a member of the GCC. Shortly after the strike ended officially on July 15, and work was resumed throughout the Company's operations, 15 or 16 of the group of 19 Lowell employees who did not return to work when other employees in the Division abandoned the strike on June 15 and who were indefinitely suspended on June 27, all, as related above, met and appointed McLean as their representative in subsequent dealings with the Com- pany. Not long thereafter, McLean telephoned Markham at the latter's home one evening. The material portion of this conversation as shown by the mutually reconcilable testimony of McLean and Markham was that McLean informed Markham that McLean had been appointed a member of the GCC and the 19 employees who had not returned to work at Lowell on June 22, 1952, had chosen McLean to act as their representative in processing any grievances which they might have with the Company, and that Markham refused to discuss these matters with McLean. Concluding Findings as to the Discharge of Archie T. McLean McLean had been employed by the Respondent for more than 21 years, during which he had held a supervisory position for some 8 years. He participated in the strike. He was a prominent official in the Union. He sought to process grievances tor fellow strikers and was not permitted to do so by Manager Markham. Markham referred to McLean as untruthful and as giving untruthful testimony although the Board made no such finding in the former case, finding only that Mc- Lean's suspensions were not discriminatory and further finding: Apart from the disciplinary action, there stands the allegation that after sus- pending the Lowell employees named in the complaint, either for fixed short periods or indefinitely, the Company discriminated against them in their tenure of employment because it refused to permit them to process their grievances through Association representatives. We agree with the Trial Examiner's finding that the Company made it clear that these employees could have had their suspensions reduced only if they were willing to utilize the services of the Lowell Local.10 The Trial Examiner has found that McLean informed Foreman Tremblay of his failure to punch the first ticket for the additional ride from the Traffic Center to Wood Mill and that Tremblay told McLean his action was correct. McLean frankly told Markham of both the incidents, but Markham discharged him without further in- vestigation although Markham testified he would "honor" an honest mistake. The precipitous discharge of an employee of 21 years' service, for failure to col- lect a fare, an offense which had not been charged against him during the pre- ceeding 13 years and moreover one who had been a supervisor for one-third of his employment, persuades the Trial Examiner that an opportunity for the discharge was sought and welcomed and that the cause given for the discharge, namely the failure to collect two 9-cent fares, was merely a convenient pretext for the act. There being no other reason given except the one which the Trial Examiner finds spurious, there remains only that alleged in the complaint, namely, the union activi- ties of the dischargee. The Trial Examiner is convinced and finds on the entire record in the case, the evidence considered as a whole, and his observation of the witnesses that Mark- ham's reason for discharging McLean was the latter's union membership and his activities in its behalf including his giving testimony and being named as a dis- criminatee in the former Eastern Massachusetts Street Railway Company case. The Trial Examiner therefore finds that by discharging Archie T. McLean on June 10, 1953, because of his membership in and activity on behalf of the Union, including his strike activity and his attempt to process grievances the Respondent has discriminated in regard to his hire and tenure of employment, thereby discourag- 10 Not all of the suspended employees were ordered made whole r1l EASTERN MASSACHUSETTS STREET RAILWAY COMPANY 313 ing membership in a labor organization (the Union) in violation of Section 7 of the Act more particularly Section 8 (a) (3) and ( 1) thereof. The Trial Examiner further finds that the said discharge of Archie T. McLean was in part motivated by the fact that he appeared as an alleged discriminatee in the former Eastern Massachusetts Street Railway Company case, decided De- cember 16, 1954, and testified in the hearing therein and that by said discharge the Respondent has engaged in conduct violative of Section 8 (a) (4) and (1) of the Act. Further Findings Both complaints, 1-CA-1435 and 1-CA-1515, allege that the Respondent engaged in conduct violative of Section 8 (a) (1) of the Act by: Threatening its employees with reprisals , loss of employment or loss of employment benefits if they continued to adhere to the Amalgamated or Com- mittee. Disciplining employees with greater severity because they continued to adhere to the Committee or Amalgamated. There is nothing in the record to sustain the above allegations . The Trial Ex- aminer will therefore recommend that the complaint , insofar as it is based on such allegations , be dismissed. 3. The briefs In his brief to the Trial Examiner the General Counsel argues the evidence and the findings of the Trial Examiner in the former case decided by the Board and re- ported in 110 NLRB 1963 in considerable detail, and apparently contends for findings by the Trial Examiner contrary to those made by the Board based on the same evidence in the former case. The Trial Examiner finds no merit in this contention and will not discuss the former case except as herein above noted in this report. The Respondent 's brief argues : (a) the causes for the former suspensions of Patrick W. Cox based on the evidence in the previous case already decided by the Board; (b) the evidence in the instant matter regarding Cox's uniform coat worn at the time of his discharge March 24, 1953, and (c) that as Cox 's case was "fully litigated before the Massachusetts ' Unemployment Compensation Commission" the findings of said commission are binding on the Board under "the principle of res judicata." The Trial Examiner finds no merit in 3 (a ) and (c) above and sees no necessity to discuss the matter. The Respondent's brief further argues McLean's discharge was for cause under the evidence. The matter has been fully discussed herein. The Union also filed a very comprehensive brief discussing the evidence in the prior cases as well as the instant matter. The Union argues. Thus, even if the Trial Examiner should find that in discharging Cox and McLean the Respondent was not motivated by unlawful considerations, he must nonetheless find unlawful discrimination in violation of Section 8 (a) (3) and 8 ( a) (1) for precisely the same reasons as found by the Board in the prior case. Although it was stipulated that the Respondent still recognized the organization found by the Board to have been unlawfully assisted, the Trial Examiner is of the opinion that to in any manner base the discharges of Cox and McLean on the find- ings in the prior case, except of couise as to background only, flies in the face of Section 10 (b) of the Act. The Union further argues that the Trial Examiner take administrative notice of the fact that the Respondent has not complied with the Board's Order in the previous case and that the Board has instituted proceedings to enforce its Order. The Trial Examiner sees no merit in this argument. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate , and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY As it has been found that the Respondent has engaged in unfair labor practices, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent discriminatorily discharged Archie T. McLean on June 10, 1953, the Trial Examiner will accordingly recommend that the Respondent offer said McLean full and immediate reinstatement to his former or a substantially equivalent position 11 without prejudice to his seniority or other rights and privileges, and make him whole in conformity with the Woolworth formula lz for any loss he may have suffered by reason of the discrimination by the payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of the Respondent's discrimination against him to the date of the offer of reinstatement, less his net earnings during said period.13 It is recommended fur- ther that the Respondent make available to the Board upon request payroll and other records, in order to facilitate the checking of the amount of back pay due.14 It is further recommended that the complaint in Case No. 1-CA-1435 be dismissed in its entirety and that the complaint in Case No. 1-CA-1515 be dismissed insofar as it alleges that the Respondent violated the Act except as herein specifically found. 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. Eastern Massachusetts Street Railway Company, herein referred to as the Respondent, is engaged in commerce within the meaning of the Act. 2. By discharging Archie T. McLean the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (4) of the Act. 3. By engaging in conduct violative of Section 8 (a) (3) and (4) of the Act the Respondent has engaged in unfair labor practices within the meaning of 8 (a) (1) of the Act. 4. The foregoing unfair labor practices are unfair labor practices within the mean- ing of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 11 See The Chase National Bank of the City of New York , San Juan, Puerto Rico, Branch, 65 NLRB 827. 13 F. W. Woolworth Company, 90 NLRB 289. 13 Crossett Lumber Co., 8 NLRB 440; Republtio Steel Corporation v. N. L. R. B. 311 U. S. 7. 14 F. W. Woolworth Company, 90 NLRB 289. Robbie Shoe Corp. and Eugene Pepin and United Shoe Workers of America, CIO, Party to the Contract United Shoe Workers of America, CIO and Eugene Pepin. Cases Nos. 1-CA-1779 and 1-CB-294. July 26,1955 DECISION AND ORDER On April 28, 1955, Trial Examiner James A. Corcoran issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practiees and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Exceptions to the Inter- mediate Report were thereafter filed only by the Respondent Union, 113 NLRB No. 35.