Checker Taxi Co., Inc.

CHECKER TAXI COMPANY, INC. 611 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 ob- structing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Harold L. Hunt was discriminated against with respect to his hire and tenure of employment, I shall recommend that the Respondent be ordered to offer him immediate and full reinstatement to his former or substantially equiv- alent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered because of the discrimination against him, by payment of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. I shall also recommend that the Respondent make available to the Board, upon request, payroll and other records to facilitate the determination of the amounts due under this recommended remedy. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 9, Amalgamated Lithographers of America is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Harold L. Hunt, thereby discouraging membership in Local 9, Amalgamated Lithographers of America, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(3) of the Act. 3. By the foregoing conduct and by interrogating employees in respect to their union membership , activities and desires, promising benefits, threatening reprisals, prohibiting employees from union discussion at the Company's premises without limitation as to time , and by withdrawing privileges of the employees , all to dis- courage the continued membership of its employees in the Union, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guar- anteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce. [Recommendations omitted from publication.] Checker Taxi Company, Inc. and Louis Linzer Checker Taxi Company, Inc. and Dominic Abata Checker Taxi Company, Inc. and George W. Weaver Checker Taxi Company, Inc. and Dominic Abata Checker Taxi Company, Inc. and James J. Gordon Yellow Cab Company and Dominic Abata Yellow Cab Company and Dominic Abata Yellow Cab Company and James J. Gordon Yellow Cab Company and Gordon Phinisey 131 NLRB No. 96. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Yellow Cab Company and Joseph P. Matenko Yellow Cab Company and Chester Gans Local 777, Taxicab Drivers, Maintenance and Garage Helpers Union, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and Louis Linzer Local 777, Taxicab Drivers, Maintenance and Garage Helpers Union, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and Dominic Abata. Local 777, Taxicab Drivers, Maintenance and Garage Helpers. Union, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and George W. Weaver Local 777, Taxicab Drivers, Maintenance and Garage Helpers Union, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and Dominic Abata. Local 777, Taxicab Drivers, Maintenance and Garage Helpers Union, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and James J. Gordon. Local 777, Taxicab Drivers, Maintenance and Garage Helpers Union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Gordon Phinisey- Local 777, Taxicab Drivers, Maintenance and Garage Helpers Union, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and Joseph P. Matenko Local 777, Taxicab Drivers, Maintenance and Garage Helpers Union, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and Chester Gans. Local 777, Taxicab Drivers, Maintenance and Garage Helpers Union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Everett W. Clark Checker Taxi Company, Inc. and Local 777, Democratic Union. Organizing Committee, Petitioner Yellow Cab Company and Local 777, Democratic Union Organiz- ing Committee, Petitioner. Cases Nos. 13-CA-3022, 13-CA-3941, 13-CA-355, 13-CA-3282, 13-CA-386, 13-CA-3242, 13-CA-3281,, 13-CA-3291, 13-CA-3297, 13-CA-3357, 13-CA-3359, 13-CB-706,. 13-CB-7792, 13-CB-779, 13-CB-788, 13-CB-792, 13-CB-797, 13- CB-823, 13-CB-824, 13-CB-8444, 13-RC-6589, 13-RC-6590, 13- RC-6591, and 13-RC-6592. May 18, 1961 DECISION, ORDER, AND DIRECTION OF ELECTIONS On August 14, 1959, the Regional Director for the Thirteenth Re- gion issued his order consolidating the above-entitled unfair labor - CHECKER TAXI COMPANY, INC. 613 practices cases, his consolidated complaint, and notice of hearing. 'Thereafter, the hearing was held before Trial Examiner Charles W. Whittemore. On July 20, 1960, the Trial Examiner issued his Inter- mediate Report, finding that Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action. He further found that the Respondents had not engaged in and were not engaging in other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed with respect to such allegations. Thereafter, the Respondents 1 and General Counsel filed exceptions to the Intermediate Report and supporting brie fS.2 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. On May 12, 1959, DUOC duly filed under Section 9(c) of the Act petitions in the above-entitled representation cases seeking elections among certain employees of the Respondent Companies. On June 9, 1959, the Regional Director issued his order consolidating the cases and notice of consolidated hearing. Such hearing in the representa- tion cases was held before Gerald S. Patterson, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.3 As the alleged unfair labor practices affect employees in the re- quested bargaining units sought in the petitions, and in view of the consequent relationship of the issues in the unfair labor practices and representation proceedings, the Board has consolidated the two pro- ceedings for purposes of decision and remedy.' With respect to the unfair labor practices, the Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the unfair labor practices cases, and hereby adopts the find- ings, conclusions, and recommendations of the Trial Examiner 5 with the following corrections, additions, and modifications : 'All Respondents filed requests for oral argument . Such requests are hereby denied as the record in this proceeding, including the exceptions and briefs of the parties, ade- quately presents the issues and positions of the parties a Local 777, Democratic Union Organizing Committee , herein 'called DUOC, was, over Respondent Union's objection , permitted by the Trial Examiner to intervene and partici- pate fully at the hearing No exceptions were filed to the Trial Examiner's ruling. DUOC filed exceptions to the Intermediate Report. 8 Certain rulings of the hearing officer were, during the hearing , appealed to the Board which reversed several such rulings The hearing officer duly corrected his rulings at the hearing. 40n September 26, 1960, Respondent Union filed a motion requesting consolidation of the unfair labor practices and representation proceedings In making our findings below with respect to the alleged unfair labor practices , we have relied, as we must, only upon the record in the unfair labor practices cases. 'In adopting the Trial Examiner's finding that the refusal by Respondent Companies to hire Abata did not violate the Act as alleged, we do so on the ground that employment with the Companies was refused for lawful economic reasons. Member Fanning disagrees with the majority on Abates and would find that the re- fusal to employ him was motivated by his activity on behalf of DUOC, and was, thus, unlawful. 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Alleged Unlawful Union-Security Provisions The Respondent Companies are engaged in the taxicab business and their operations insofar as material here involved their taxicab drivers and employees working in the taxi garages. All such employees have for well over 10 years been represented by Respondent Union in four separate units: i.e., separate units at each company for drivers and separate units at each for garage employees.° Respondent Union has entered into a series of contracts for each such unit, but only those executed in 1956 and 1959 are material to the issues here. While the contracts for drivers and garage employees are substantially different, the contracts except for certain dates are at each company identical for drivers and for garage employees. The drivers contracts: In October 1956 each company and Respond- ent Union executed contracts covering their taxi drivers. The agree- ments were to run till December 31, 1958, and from year to year there- after absent 60 days' notice to terminate. Insofar as material here- the contracts provided that : .... The Company hereby agrees that, as chauffeurs of the taxicabs owned or operated by it, it will employ only and exclu- sively members of the Union who are in good standing and whose dues have been fully paid up to and including the previous months, and that it will not suffer or permit its taxicabs to be operated by other persons or parties, except as herein provided Such provision clearly establishes, we find, unlawful hiring and em- ployment conditions in that it not only failed to provide new employ- ees the statutory 30-day grace period before being required to join the Union, but also requires union membership and payment of dues as a condition of employment. The companies contend that in practice, they were free to, and in fact did, hire drivers who were not members of Respondent Union. However, it is not alleged that any new em- ployees were given 30 days in which to join the Union. Rather the record clearly established that, with the possibility of an occasional exception, drivers seeking employment were in practice not only di- rected to the Union by management but were in fact required to join before being permitted to go to work 7 Thus, it is clear, and we so find, that in practice the above unlawful closed-shop provisions of the con- tract were enforced in all ways material 8 Accordingly, we find in a DUOC in its four representation petitions seeks separate elections in each of the four established units. 7 In addition to general statements showing that the union-security provisions were in fact enforced , the record also shows inter alia and we so find , that at a time within the 10(b) period Yellow employees Leon Lewison, David Alter, Gerald J. Kozel, and David Levin were required to join Respondent Union as a term and condition of employment. 8 The record is susceptible of the interpretation that a driver applicant was listed as an employee prior to perfecting his union membership . But where as here such membership was a precondition of being placed on the job such fact would not detract from the CHECKER TAXI COMPANY, INC. 615 agreement with the Trial Examiner that Respondent Companies vio- lated Section 8 (a) (3), (2), and (1) and Respondent Union violated Section 8 (b) (1) (A) and (2) by maintaining and enforcing the above- quoted union-security provision of their contracts within the 6-month limitation period of Section 10 (b) of the Act.' The 1956 contracts expired on December 31,1958.1° On January 16, 1959, Respondent Union and the Companies entered into new agree- ments containing union-security provisions lawful on their face." While the effective date of the 1959 agreements was generally Janu- ary 1, the union-security provisions by express exception were effec- tive as of the date of execution and no union-security requirements were, insofar as the record indicates, imposed upon drivers during the period between the expiration of the 1956 agreements and execu- tion of the 1959 contracts. The Trial Examiner found that Respond- ents violated the Act by executing, maintaining, and enforcing the 1959 "union shop" drivers contracts without first providing the covered employees with an opportunity to choose their bargaining representative in a manner free from the coercive effects of the un- lawful closed-shop provisions of the 1956 agreements. We agree with his result. We have found, in effect, that the Respondent Companies unlaw- fully assisted the Respondent Union by maintaining and enforcing the 1956 drivers contracts. Consequently, at the time of execution of the 1959 contracts the majority status of the Respondent Union was with respect to the drivers of each company tainted by past illegal support and no basis exists for concluding that at such time Respondent Union in fact represented an uncoerced majority of the employees involved. closed-shop nature of the hiring arrangement . It is the substance , not the form of the arrangement, that is controlling. °The Trial Examiner found the 10(b) period to start in April and October 1958, for Checker and Yellow , apparently relating his computation for such period to the earliest charges filed that named the particular company as a respondent . We disagree with his result here. We find that the period for all Respondents should be based on the charges filed May 8, 1959, which were the first raising the contract issue. In any event it is clear that the unlawful union-security clause was with respect to each company main- tained and enforced during the 10(b) period However, as the Trial Examiner con- cluded, the lawfulness of the execution of the clause having occurred before the 10(b) period is not now before us 10 The record does not show specifically if the required 60 days' notice was given to forestall automatic renewal of the agreements . However, there is evidence that Respond- ents, during the last 2 months, negotiated a new contract and that after December 31, 1958, stopped enforcing the union -security provisions of the 1956 agreements Conse- quently, we have, absent any evidence to the contrary , concluded that the agreements did terminate as stated above. n These provisions provided : "It shall be a condition of employment that all employees of the Company covered by this agreement who are members of the Union in good stand- ing on the date of execution hereof shall remain members in good standing and those who are not members on the date of execution of this agreement shall , on the thirtieth day following the date of execution of this agreement, become and thereafter remain members in good standing in the Union . It shall also be a condition of employment that all employees covered by this agreement and hired on or after the thirtieth day hereof shall on the thirtieth day following the beginning of such employment , become and there- after remain members in good standing in the Union." '616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although the employees were wholly free from January 1 to 16, 1958, of any contractual compulsion to join or remain members of the Union, it is clear that no steps were taken by Respondents during this period to dissipate the coercive effects of their past unlawful actions, and, in fact, no expression of employee support for the Union would have -created a valid majority status until such coercive effects had become inoperative, thereby placing the employees in a position to express a -free choice of bargaining representative,.12 Thus, their failure to re- ject the Union during the 2 weeks they were free of compulsive con- tractual provisions requiring membership cannot be construed as demonstrating that the Union at times here material enjoyed a proper, uncoerced majority status, and we find that in fact no such majority status did exist. Consequently, we further find that Respondent Com- panies, by executing, and thereafter maintaining and enforcing the -the 1959 contracts violated Section 8 (a) (1) (2), and (3) 13 and that Respondent Union by such conduct violated Section 8 (b) (2) and -(1) (A). The garage contracts : In October 1956 each company as noted above entered into contracts with the Respondent Union for units of their garage employees . The agreements were to run until October 3, 1958, and year to year thereafter absence timely notice to terminate, and contained a union-security clause.14 The Trial Examiner did not pass upon the legality of the substantive provisions of these clauses, but found the agreements unlawful because Respondent Union was not in compliance with the filing requirements of Section 9(f), (g), and (h) of the Act 15 during that part of the Section 10(b) limitations period in which the agreements, including the union-security provisions, were maintained and enforced . However, the Act proscribed only entering into a contract containing otherwise lawful union-security provisions if the union had not "at the time the agreement was made or within the preceding twelve months received from the Board a notice of com- pliance with Section 9 (f), (g), (h)." 16 There is no statutory provi- sion making it unlawful to maintain and enforce a union-security clause during such times as the Union may not have been in compli- ance. Consequently, to find the contracts unlawful because of non- compliance of the Union we must look to the execution of the agree- ments. But as that event occurred some 2 years before the filing of 12 See Red Arrow Freight Linea, Inc, et at , 77 NLRB 859 , 860, 919 19 See Meyer & Welch, Incorporated, 91 NLRB 1102, 1103. 14 Each contract provided : "All employees who are covered by this agreement on the effective date thereof shall be required within thirty ( 30) days of such effective date, and all new employees who shall be hired by the company after such effective date shall be required upon the expiration of the first thirty ( 30) days of their ninety-day proba- tionary period as temporary employees, to become and remain members in good standing -of the Union for the duration of this Agreement as a term and condition of employment." 15 These sections were repealed by Section 201(d ) and (e) of the Labor-Management Reporting and Disclosure Act of 1959. 16 See Section 8(a) (3) of the Act. CHECKER TAXI COMPANY, INC. 617 the related charges, we are barred by Section 10(b) from finding that the execution of the agreements was unlawful. It is noted that the union-security clause provides that. employees on the date of execution of the agreements must join the Union within 30 days of the effective day of the agreement. However, apart from the issue of its legality, 14 by its very terms this provision of the union-security clause was effec- tive and could only be effective for a 30-day period antedating the 10 (b) period by approximately 2 years. To be sure, the provision was maintained in the sense it was physically present in the contract during the 10 (b) period. But at that time it had as a practical matter expired by its own terms and could, assuming its illegality, exercise no coercive influence over any employees because none came within, and none could come within its apparent unlawful requirements. Consequently, we find, contrary to the Trial Examiner and in view of the foregoing, that the 1956 garage employees contracts were not at times here ma- terial unlawful as alleged. As for the 1959 garage agreements they contained wholly proper union-security provisions."' Also, the Union had within the week before their execution come into compliance with the filing require- ments of Section 9(f), (g), and (h) of the Act. Accordingly, as there was no past unlawful assistance of the Union as occurred with respect to the driver contracts, no basis appears for questioning the validity of the 1959 garage agreements. We, therefore, find contrary to the Trial Examiner that they are not unlawful. Alleged Section 8(b) (1) (A) Violations The complaint specifies'some 28 violations of Section 8(b) (1) (A) involving alleged unlawful threats, violence, and surveillance by offi- cers and agents of Respondent Union and involving employees of Yellow and Checker and agents of DUOC and assertedly restraining and coercing them in the exercise of their rights under Section 7 of the Act. The Trial Examiner passed specifically upon only nine of the alleged unlawful incidents, finding but two violations. We agree with his conclusions that Respondent Union, through its agent's, Colling's, threatening remarks to Everett Clark on May 26 and 27, 1959, violated Section 8(b) (1) (A). We also agree that the incident on May 4, 1959, involving Siewart, a supporter of Respondent Union, and Everett Clark, and the May 13 "photographer" incident did not con- stitute such violations. However, in disagreement we find that the record fully supports the allegations of the complaint that Respondent Union through its officers and agents committed numerous other viola- tions of Section 8(b) (1) (A). 14 Member Fanning would not, in any event, find such a provision illegal . See his dis- senting opinion , Chun King Sales, Inc., 126 NLRB 851, at footnote 6. Is These provisions were substantially the,same 'as those in•tbe,1959 drivers', agreements. See footnote 11, above. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Violence and unlawful threats: (a) On April 21, 1959, Edwin Hicks, a DUOC organizer, and Kevin Sullivan, a driver for Checker, were distributing DUOC literature at a taxicab line at Chicago's Mid- way Airport to drivers of Yellow and Checker and were also seeking their signatures on DUOC petitions. A hundred or more drivers were present. Four officers of Respondent Union came on the scene, telling the drivers that Hicks and Sullivan had no right to give them leaflets and not to sign DUOC petitions. Marcie, one of the four, then approached Sullivan, began pounding him on the chest and calling him a "fink" and "Communist." On April 29, 1959, a somewhat similar incident occurred while Abata and Hicks, both full-time DUOC organizers,1' were handing out literature and circulating DUOC petitions among a number of drivers at Chicago's Northwest- ern railroad station. They were approached by Connors and Kofkin, agents of Respondent Union. Connors grabbed a clipboard from Hicks, while Kofkin took from him some DUOC petitions which he then crumpled up. A policeman on the scene retrieved the clip board and petitions for Hicks. Again on May 1, 1959, while Hicks and Abata were passing out DUOC literature and seeking signatures for a DUOC petition among a number of drivers at Midway Airport, Respondent Union's agents, Siewart and Colling, came on the scene. ,Siewart brushed against Hicks, telling him he had no right to hand out the petitions and that ". . . I will see that you don't." Then .Siewart began pushing Hicks. Next Colling and Siewart took DUOC leaflets from a number of the drivers, telling them not to talk to "these guys" and to give up the leaflets. The same type of tactic was fol- lowed by Siewart and Colling the following day when Abata and James Gordon, a Checker driver, were at the Midway airport doing DUOC organizational work. Gordon was pushed violently from be- hind and his clip board and DUOC petitions were snatched from behind. Turning, he saw Siewart and Colling-one calling him an obscene name, the other asking what he was doing and telling Gordon to "get the hell out before you get your neck broke." They then tore up the DUOC petitions. When Gordon again started handing out DUOC leaflets to the drivers, Colling and Siewart followed him, grabbed the leaflets from the drivers, and told them, "Don't read that or I will take your number; you will lose your job." The above conduct by officers and agents of Respondent Union clearly represent attempts to obstruct by forcible means and by threats of violence the lawful organizing activities of DUOC agents. The beating of Sullivan and violent shoving of Gordon were forcible acts against employees for engaging in rival union activity, having the natural and intended consequence of restraining and coercing them in the exercise of their Section 7 rights. Similarly, the snatching of "Abates was also president of DUOC. CHECKER TAXI COMPANY, INC. 619 DUOC pamphlets and petitions from employee drivers constituted restraint and coercion of such drivers in their right to engage in rival union activity and to acquire information concerning and, if they chose, to indicate their support of DUOC. Also, the violence and threats of violence directed against Hicks, a nonemployee DUOC organizer, constituted unlawful restraint and coercion of employees not only by being forcible measures to obstruct them in their right to obtain information concerning, and to indicate support for DUOC, but also by demonstrating to the many employee drivers who were present at the time the incidents occurred that they too could reason- ably expect to be subject to such violent and abusive actions if they participated in activities on behalf of DUOC 2° Consequently, we find that the above conduct taken together as an overall pattern of forcible obstruction or in its separate elements noted above consti- tutes unlawful restraint and coercion. (b) Conduct not unlike that related above occurred on October 14 and 28, 1959, and involved Colling and Richards, Respondent Union's agents, and Yurkonis, a Yellow driver and DUOC trustee. No other drivers were involved. On the earlier date, Colling and Richards came into a coffee shop where Yurkonis was sitting and began picking up DUOC literature lying on the counter. Yurkonis told them to stop, an argument ensued, and Colling told Yurkonis to shut his mouth "or we will keep it shut for you." On the latter date, Yurkonis was in the coffee shop when Colling and Richards again came in and a dispute ensued over Yurkonis' failure to wear a button of Respond- ent Union. Colling grabbed Yurkonis' jacket. The latter broke away and said that "no triggerman for Glimco" would tell him what to wear. Colling again grabbed the jacket, replying that arrangements would be made for Yurkonis "to meet union officials." 21 The above -conduct of Colling constitutes the use of forcible means and open threats of violence or retaliation having the consequence of or tend- ency to restrain and coerce Yurkonis in the exercise of his Section 7 rights. Respondent's agents made other direct threats of violence and re- criminatory action to obstruct the organizational activities of DUOC :and employee participation in such activities and support for that 20 The Trial Examiner takes the apparent position that conduct directed toward Hicks and Abata cannot fall within the proscription of Section 8(b) (1) (A) because these DUOC organizers were not employees of Respondent Companies . We cannot agree for as is clear from the text of the decision such conduct was open and notorious and either took place in the presence of employees or under circumstances in which they were likely to learn of it. Consequently , we conclude with respect to the various incidents involving Abata and Hicks that the conduct restrained and coerced or tended to restrain or coerce employees in the exercise of their Section 7 rights. Compare N L.R.B. v. H. R. McBride d/b/a H. R. McBride Con8truction Co., 274 F. 2d 124 (C.A. 10) ; Grundy Mining Com- pany, 130 NLRB 1181. n After Colling grabbed his jacket the first time, Yurkonis picked up a bottle to defend himself. However, despite Colling's second attack , Yurkonis did not use the bottle. In any event, it is clear that throughout the incident Coiling was the unprovoked aggressor. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union. Thus, on Jime 15, 1959 , in a dispute arising out of certain DUOC litigation against Respondent Union, Glimco threatened Abata that he, Abata, would find "your head in your lap yet." On May 13, 1959, Respondent Union's agents, including Colling, picketed a DUOC meeting. As drivers drove up to the meeting, Colling told them not to go in, that if they did they were "going to lose [their] job," adding "get out and I will show you." The above threats-one of bodily harm, the other of job lass-were clearly tended to dis- courage and obstruct organizational activities and support of DUOC' and, thus, we find, unlawfully restrained and coerced the employees in the exercise of their Section 7 rights. (c) On May 7, 1959, Chester Gans, a Yellow driver, refused, when requested by Dominic Vece, Respondent Union's agent, to sign a "loyalty" petition for Respondent Union, stating he might do so^ the next day. Vece replied that that might be too late, and, on Gans stat- ing that he might not sign at all, Vece warned that if he did not he "would suffer the consequences ." Similarly on May 25, 1959 , Michael Jakubowski, a Checker driver, was asked by Harry Echols, an agent of Respondent Union, to sign the loyalty petition. Jakubowski re- fused and Echols ordered him to sign or else he, Echols, would put Jakubowski "on the pan before Glimco," if that was the way Jaku- bowski wanted it. The foregoing threats to Gans that he would "suffer the consequences" and to place Jakubowski "on the pan before Glimco" are, we find, unlawful, as they were intended to, and had the natural consequence of coercing the employees involved to support Respondent Union. The fact that these remarks spelled out no spe- cific dire result is not enough to render them innocuous, for they occurred in a context , as we have found above, marked by the un- lawful use of forcible means and threats of bodily harm to obstruct the activities of DUOC and employee support of that organization. (d) Somewhat similar to the foregoing generalized threats are a number of veiled threats which, for the most part, the Trial Examiner rejected as being too vague to support finding a violation. However, the ready and overwhelming implication of the statements is, we find, the use of forcible means including resort to bodily harm to con- vince an employee he should forget about DUOC and working on its behalf. Thus, on April 10, 1959, Oscar Kofkin, an officer of Re- spondent Union, told Cecil Clark, a Yellow employee and DUOC trustee, to "lay off the union business or your ulcers will be bothering you." Clearly, we have here a coercive threat of unspecified recrim- inatory action, calculated to thwart Clark's activity on behalf of DUOC. Then on April 15, 1959, James Connors, a business repre- sentative and trustee of Respondent Union, talked to Everett Clark, Yellow driver and DUOC vice president, about Clark's DUOC ac- tivities, asked Clark if he were married , if his brother was "kind of CHECKER TAXI COMPANY, INC. 621 nervous," and if his brother did not have three children. Conners ended the conversation with "Don't be pushing those [DUOC] pe- titions." No valid reason appears why Conners would inquire into Clark's marital status or into the health or family affairs of Clark's brother. There can be no doubt, and we so find, that the statements of Connors were a threat of harm to Clark's wife, and to Clark's brother and his family, if Clark continued to "push" the DUOC pe- titions and tended to restrain and coerce Clark in the exercise of -his Section 7 rights. Similarly on April 8, Glimco called into his office Albert Yurkonis, who as already noted was a Yellow driver and DUOC trustee, and after talking over union matters, Glimco stated he had "ways of taking care of guys like" Yurkonis. In reply to Yurkonis' question if the statement was a threat, Glimco asked Yur- konis, "How many children do you have? . . . Are they small?" Both of the above statements by Glimco are unlawful threats-the first of bodily harm to Yurkonis, the latter to his supposed children- tending to restrain and coerce Yurkonis from supporting DUOC 22 Also, on April 8, Glimco called Joseph Matenko, a Yellow driver, into his office. There Kofkin and Markov, Respondent Union's officers, told Matenko it did not make sense for him to work for Yellow and to support DUOC. Then Glimco told him he could return to work but not to attend DUOC meetings or otherwise support that organiza- tion. Under the circumstances here we filed that Glimco by coupling Matenko's right to return to work with an admonition to abandon DUOC in fact threatened Matenko with loss of his job if he continued to support DUOC. The record here also shows that on August 4, 1959, at the hearing in the representation proceeding, Glimco said to Hicks, a DUOC organizer, who had participated in the hearing on behalf of DUOC, "You are a nice guy, you want to live a long time," and that Connors, Respondent Union's agent added, "Life is sweet, isn't it?" Such remarks were unquestionably threats of bodily harm having the consequence of restraining Hicks in his activities and sup- port of DUO C. And, as they were a part of Respondent Union's open campaign of unlawful forcible acts and threatening statements against supporters of DUOC, they also restrained and coerced employees tending to deny them the right to engage in activity for DUOC through the agency of Hicks and placing them in fear of the threat- ened recriminating action, should they themselves engage in such activity. In sum, then, we find that Respondent Union by the acts set forth above involving the use of force and threats restrained and coerced employees of Respondent Companies in the exercise of the rights guar- "That Yurkonis had no small children is not of material consideration, for the state- ment nevertheless revealed that Glimco Intended to take extreme violent measures if Yurkonis continued to support DUOC. 622 DECISIONS OF NATIONAL ,LABOR RELATIONS BOARD anteed by Section 7 and, thereby, violated with respect to each such incident Section 8 (b) (1) (A) of the Act. Surveillance: From the advent of DUOC in April 1959 and during much of the remaining part of that year certain DUOC officers, or- ganizers, and supporters were followed or otherwise placed under surveillance by various officers and agents of Respondent Union. The complaint alleges that such conduct violated Section 8 (b) (1) (A). Specifically, Dominic Abata, after becoming president of DUOC in early April 1959, was almost continuously followed around streets of- Chicago by agents of Respondent Union, but mostly by Kenneth. Colling, a Yellow cab driver on leave and carrying a letter stating that, he was authorized to conduct organizing business for Respondent Union. From early May 1959, for a period of several months, Colling- was seen on numerous occasions following Abata in a white Cadillac. A police officer assigned as bodyguard to Abata observed Colling on various occasions following Abata and stopped him for questioning- several times. Colling told him that he was on business for Respond- ent Union. On at least one occasion, when Abata was being followed in the aforesaid manner, Colling was accompanied by James Gordon,, a taxicab driver for Checker. Also, starting in April 1959, Edwin Hicks, a nonemployee organizer for DUOC, was continuously fol- lowed and someone watched his apartment off and on over a period of several months, engaging in such observation for as long as 5 hours at a time. One of the persons following Hicks was Colling, who, with a companion, on one occasion pulled up by the side of Hicks' car and said, "We want to talk to you anywhere you say and then we will leave you alone." Cecil Clark, an employee of Yellow and DUOC officer,, was subject to such surveillance; Oscar Kofkin, vice president of Re- spondent Union, admitted to Clark that he was being followed by an agent of that union. On April 10, 1959, Kofkin told Clark, "My men. seen you out at 3 o'clock in the morning." When Clerk denied this,, Kofkin replied, "Who did you give your car to at 3 o'clock in the- morning?" On another occasion, on May 3, 1959, Cecil Clark saw a, white Cadillac following him as he left the Union Station in Chicago. He noticed that Joseph Glimco was sitting in the back and that the- car was being driven by another man. Clark tried evasive tactics to avoid the Cadillac but it followed him doggedly for some time around the city streets. The surveillance by Respondent Union was for the most part openly - done in a conspicuous white Cadillac through the streets of Chicago, which in a real sense is the general work area of the drivers involved, in this proceeding. Consequently, not only those agents of DUOC who, were subject of the surveillance knew of the activity, of which in- fact Respondent Union notified them on occasion, but also drivers and • garage employees of Yellow and Checker would, under the circum-- CHECKER TAXI COMPANY, INC. 623 stances here, also be aware of such activity. We have found above that employees of the Companies acting as agents of DUOC were subject to unlawful forcible acts and threats of violence and other recrimination for their activities on behalf of DUOC. We have also found that other drivers were subject to similar unlawful conduct as a result of their dealings and contacts with DUOC agents and support for that union. Thus, the open surveillance of DUOC agents by notifying employees that Respondent Union was aware of both who were such agents and what were their activities would have the natural consequence of restraining employees from engaging in such activity on behalf of DUOC or freely dealing with its agents out of fear of being subject to those unlawful forcible acts and threats found above. Accordingly, we find, contrary to the Trial Examiner, that under all the circumstances here Respondent Union through its agents 21 and officers restrained and coerced employees in the exercise of their Section 7 rights by following and otherwise engaging in sur- veillance of agents and officers of DUOC and thereby violated Sec- tion 8(b) (1) (A) of the Act. THE REMEDY Though the Trial Examiner found that an agent of Respond- ent Union, on two occasions, engaged in conduct violative of Section 8(b) (1) (A), he concluded that, under the circumstances, such conduct did not warrant a cease-and-desist order. We need not consider whether or not the Trial Examiner was correct in his conclusions; for, in view of our findings above that Respondent Union engaged in many widespread violations of that section, an order prohibiting the un- lawful conduct is both appropriate and necessary. Accordingly, we shall order that Respondent Union cease and desist from engaging in conduct proscribed by Section 8 (b) (1) (A). The Trial Examiner recommended that Respondent Companies and Respondent Union reimburse all employees and former employees for any dues, fees, assessments, or other moneys unlawfully exacted from them within the 10 (b) period as a condition of obtaining or re- taining employment with the Respondent Companies. Insofar as such order applies to garage employees it is clearly inappropriate in view of our findings above that the garage contracts were not un- lawful. As for the drivers contracts, the finding that they were un- lawful is under the circumstances here insufficient to support a broad 28 We have found above that Respondent Union is responsible inter alia for the unlawful acts of Colling, Vece, Echoles, Richards, and Siewert It concedes that these individuals were its agents at times here material except for Siewert with respect to whom it takes no firm position . However, at the times he engaged in conduct herein found unlawful he was accompanied by officers and agents of Respondent Union who took no steps to repudiate his actions In these circumstances, we find that he was acting under the color of authority , and was, in fact, an agent of Respondent Union and that in consequence his unlawful acts are imputed to it. - 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reimbursement order such as that recommended by the Trial Ex- aminer.24 However, as wehave found that Yellow employees Lewison, Alter, Kozel, and Levin were, during the 10(b) period, specifically coerced to join and pay dues and other moneys to Respondent Union pursuant to the unlawful union-security provisions of the applicable drivers contract, we shall order Respondent Yellow and Respondent Union jointly and severally to reimburse these employees for the dues and moneys thus illegally exacted as a condition of employment 25 As the Respondent's repeated unlawful activities indicate a purpose to defeat the free self-organization of the Companies' employees, we are convinced that they are potentially related to other unfair labor practices proscribed by the Act and that the danger of their com- mission in the future is to be anticipated from Respondent's conduct in the past. Consequently, the preventive purposes of the Act will be thwarted unless the Board's Order is coextensive with the threat. Accordingly, in order to make effective the independent guarantees of Section 7 and thus effectuate the policies of the Act, we shall order that Respondents cease and desist from in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act. We have found, as did the Trial Examiner, that Respondents Checker and Yellow assisted Respondent Union in violation of Section 8(a) (2) of the Act by: (1) Executing, maintaining, and enforcing the 1959 collective-bargaining contracts, which related to the units of drivers and which contained union-security provisions, at a time when the illegal effects of the preceding closed-shop contracts had not been demonstrably dissipated; (2) permitting Respondent Union to ac- tively solicit signatures for its "loyalty" petitions in and around their premises, while denying similar privileges to DUOC; and (3) aiding Respondent Union in the dissemination of its anti-DUOC propaganda campaign by directing their employees to Respondent Union's offices. Therefore, in accordance with the Board's established policy in such cases,26 we shall provide in our order that further recognition of the Respondent Union and performance of the agreements between it and Respondents Checker and Yellow shall be conditioned on demonstra- tion by Respondent Union of its exclusive representative status in a Board-conducted election. In this regard, we note that in the representation cases which have been consolidated with the instant unfair labor practice proceedings, DUOC has sought elections with respect to two units of drivers and two units of garage personnel. In the posture of the present pro- ceedings in which we find widespread acts of assistance and coercion in violation of Section 8(a) (2) and 8(b) (1) (A), respectively, all of 21 See N L R .B. v. Local 60, United Brotherhood of Carpenters, etc. (Mechanics Handling by8tem ), 365 U.S. 651. a See Lykes Bros. Inc. of Georgia, 128 NLRB 606. 21 Bowman Transportation, Inc., 120 NLRB 1147, 1149. CHECKER TAXI COMPANY, INC. 625 which have been highly prejudicial to the free-interests and rights of both the employees and DUOC, we believe, we should make appropriate provisions at this time for elections, in which the employees can freely express their choice as between the Respondent Union, DUOC, and no union for a bargaining representative. This is, so. because the Board's basic objective in cases of this type is to, "demonstrate that ... [the assisted union's] right to be the exclusive representative of the employees involved has been established in an atmosphere free of restraint and coercion."" As the conduct of an election in 8 (a) (2) cases follows as a matter of course as an adjunct of the Board's remedial power under Section 10(c), and takes place "outside the scope of Section 9(c),"" we shall direct the Regional Director for the Thirteenth Region to direct elections in the units found appropri- ate below when he is satisfied that the effects of the unlawful assist- ance, restraint, and coercion have been dissipated and determines that a free and untrammeled election can be held. In view of the foregoing, we find that it will best effectuate the policies of the Act to direct the Regional Director for the Thirteenth Region to direct and supervise the conduct of the elections either (1) if compliance with our Order is voluntarily achieved, after the post- ing period has elapsed and a free election can be held; or (2) should the Respondents fail to comply with the provisions in this Decision and Order and it is necessary to have this Order enforced by a decree of a United States Court of Appeals, the Regional Director shall direct the elections upon the Respondents' full compliance with such decree; or (3), as we recognize that the delays which would inevitably accompany further litigation in this matter might unduly affect the climate of the representation questions, in the event enforcement of this Order is sought, the Regional Director shall direct the election at such time as DUOC indicates that such action is desired. The elections provided for above shall be conducted among em- ployees in the following units, which units we find, upon the entire record in the representation proceeding 29 and in accord with the 27 Bowman Transportation, Inc., 113 NLRB 786, 788. 28 Bowman Transportation, Inc., supra, footnote 26, on remand from 355 U S. 453. A Respondent Union contended both in the unfair labor practices and representation proceedings that the DUOC is not a labor organization. The Trial Examiner found on the basis of the record before him that DUOC was a labor organization within the mean- ing of the Act. We have, adopted that finding. The record in the representation pro- ceeding also supports such a finding in that it shows DUOC is an organization in which employees participate and which exists in whole or in part for purposes of representing employees concerning collective bargaining and related matters At the representation proceeding the Respondent Union also contended that DUOC did not have an adequate showing of interest to support its petitions and that the petitions were barred by the then current contracts . However, such contentions which relate to issues in a 9 ( c) proceeding, are not material to elections directed , such as those here, pursuant to the remedial provisions of 10 (c). Moreover, with respect to the contract- bar issue, as our decision directing elections will issue subsequent to the expiration dates of the contracts raised as a bar, such contracts would not , in any event, operate as a bar to the petitions. See The Ohio Valley Gas Company, 124 NLRB 579, 580. 599198-62-vol, 181-41 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement of the parties, to be appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : (a) All chauffeurs employed by the Checker Taxi Company, Inc., but excluding clerical and all other employees, guards, executives, and supervisors as defined in the Act. (b) All garage employees including porters, carwashers, car gas- sers, hikers, oilers, mechanics' helpers, tow truck drivers, greasers, mechanics grade B, parts delivery truckdrivers, mechanics grade A, licensed mobile radio technicians, and unlicensed mobile technicians employed by the Checker Taxi Company, Inc., at its garages, but ex- cluding clerical and all other employees, guards, executives, and supervisors as defined in the Act. (c) All chauffeurs employed by the Yellow Cab Company, but ex- cluding clerical and all other employees, guards, executives, and supervisors as defined in the Act. (d) All garage employees including porters, carwashers, car gas- sers, hikers, oilers, mechanics' helpers, tow truck drivers, greasers, mechanics grade B, parts delivery truckdrivers, mechanics grade A, licensed mobile radio technicians, and unlicensed mobile radio tech- nicians employed by the Yellow Cab Company at its garages, but excluding clerical and all other employees, guards, executives, and supervisors as defined in the Act. In these elections the employees shall determine in each unit whether they wish to be represented for collective-bargaining purposes by Local 777, Taxicab Drivers, Maintenance and Garage Helpers Union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, by Local 777, Democratic Union Organizing Committee," or by no union. ORDER Upon the entire record in the unfair labor practices cases, and pur- suant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. The Respondent, Checker Taxi Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Maintaining or giving effect to current collective-bargaining agreements with the Respondent, Local 777, Taxicab Drivers, Main- tenance and Garage Helpers Union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or to any extension, renewal, or modification thereof. 80 Respondent Union filed a motion in the representation proceeding requesting that DUOC not be permitted to appear on the ballot in any elections that might be directed with the designation "Local 777 " However, under all the circumstances and as the full names of the unions are markedly different and will appear on the ballots, the use of the local designation by DUOC will not, we find, be confusing to the voters . Accordingly, the motion is denied. See V. LaRosa & Sons, Inc, 121 NLRB 671 , 672-673. CHECKER TAXI COMPANY, INC. 627 (b) Recognizing said labor organization as the representative of any of its employees for the purposes of dealing with them concern- ing grievances, labor disputes, wages, rates of pay, hours of employ- ment, or other conditions of employment, unless and until said labor organization shall have been certified as such representative by the Board. (c) Assisting or contributing support to the aforesaid labor organ- ization, or to any other labor organization. (d) Encouraging membership in the above-named labor organiza- tion, or in any other labor organization of their employees, by dis- criminating in regard to hire or tenure of employment or any term or condition of employment, except to the extent permitted in the provisos to Section 8 (a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Local 777, Democratic Union Organizing Committee, or any other labor organization, to bargain collectively through representatives of their own choosing, and to en- gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as au- thorized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold recognition from Local 777, Taxi- cab Drivers, Maintenance and Garage Helpers Union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the representative of its employees for the purpose of dealing with them concerning grievances, labor disputes, wages, rates of.pay,and commissions, hours of employment, or other conditions of employment, unless and until the said labor organization shall have been certified as such representative by the Board. (b) Jointly and severally with Respondent Union make Louis Linzer whole for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he normally would have earned from the date of the discrimination against him to the date of his reinstatement, less his net earnings during said period, said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. (c) Preserve and, 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 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other records necessary to analyze the amounts of backpay due Louis Linzer under the terms of this Order. (d) Post at their garages, and at all other places where notices to its employees are customarily posted, copies of the notice attached hereto marked "Appendix A." 31 Copies of said notice, to be fur- nished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondent's authorized representa- tives, be posted by the Respondent immediately upon receipt thereof, and be maintained for a period of 60 consecutive days, thereafter, in conspicuous, places, including all places • where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered,' defaced, or covered by any other material. (e) Post at the same places and under the same conditions as set forth in (d) above, as soon as they are forwarded by the Regional Director, copies of the Respondent Union's notice herein marked ",Appendix C." (f) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. B. The Respondent, Yellow Cab Company, its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Maintaining or giving effect to current collective-bargaining agreements with the Respondent, Local 777, Taxicab Drivers, Main- tenance and Garage Helpers Union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or to any extension, renewal, or modification thereof. (b) Recognizing said labor organization as the representative of its employees for the purposes of dealing with them concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said labor organiza- tion shall have been certified as such representative by the Board. (c) Assisting and contributing support to the aforesaid labor or- ganization, or to any other labor organization. (d) Encouraging membership in the above-named labor organiza- tion, or in any other labor organization of their employees, by dis- criminating in regard to hire or tenure of employment or any term or condition of employment, except to the extent permitted in the provisos to Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form 81 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." CHECKER TAXI COMPANY, INC. 629 labor organizations, to join or assist Local 777, Democratic Union Organizing Committee, or any other labor organization, to bargain collectively through representatives of their own choosing, and to en- gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as author- ized in Section 8(a) (3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold recognition from Local 777, Taxicab Drivers, Maintenance and Garage Helpers Union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the representative of its employees for the purpose of dealing with them concerning grievances, labor disputes, wages, rates of pay and commissions, hours of employment, or other conditions of employment, unless and until the said labor organization shall have been certified as such representative by the Board. (b) Jointly and severally with the Respondent Union reimburse Leon Lewison, David Alter, Gerald J. Kozel, and David Levin for all fees, dues, assessments, or other moneys unlawfully exacted from them as the price of their employment, in the manner and to the extent set forth in the section of this Decision entitled "The Remedy." (c) Post at their garages, copies of the notice attached hereto marked "Appendix B." 32 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondent's authorized representatives, be posted by the Respondent immediately upon receipt thereof, and be main- tained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in (c) above, as soon as they are forwarded by the Regional Director, copies of the Respondent Union's notice herein marked "Appendix C." (e) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. C. The Respondent Local 777, Taxicab Drivers, Maintenance and Garage Helpers Union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, rep- resentatives, agents, successors, and assigns, shall: 82 See footnote 31, supra. MO DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Causing or attempting to cause Checker Taxi Company, Inc., or Yellow Cab Company, their officers, agents, successors, or assigns, to discriminate against their employees in violation of Section 8 (a) (3) of the Act. (b) Maintaining or giving effect to its current agreements with the Respondent employers or to any extension, renewal, modification, sup- plement, or other contract with said Employers, unless and until it shall have been certified as exclusive bargaining representative by the Board. (c) Restraining and coercing employees of Respondent Employers in the exercise of their Section 7 rights by threats, by acts of force and violence, by surveillance of rival union organizers and their activities, or by like or related conduct. (d) In any other manner restraining or coercing the employees of the said employers in the exercise of their rights to engage in, or refrain from engaging in, any or all of the activities guaranteed in Section 7 of the Act, except to the extent that such right may be affected by an agreement executed as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with Respondent Checker make whole Louis Linzer for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he normally would have earned from the date of the discrimination against him to the date of his reinstatement, less his net earnings during said period, said back- pay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. (b) Jointly and severally with Respondent Yellow reimburse Leon Lewison, David Alter, Gerald J. Kozel, and David Levin for all fees, dues, assessments, or other moneys unlawfully exacted. from them as the price of their employment, in the manner and to the extent set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all membership dues records, permits, and other records necessary to compute the moneys illegally exacted from employees Leon Lewison, David Alter, Gerald J. Kozel, and David Levin. (d) Post at its business offices, and its bulletin boards at the various garages of Respondent Employers, copies of the notice attached hereto marked "Appendix C." 33 Copies of said notice, to be furnished by 33 See footnote 31, supra. CHECKER TAXI COMPANY, INC. 631 the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondent Union's representatives, be posted immediately upon receipt thereof, and be maintained by the Respond- ent Union for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (e) Post at the same places and -under the same conditions as set forth in (d) above, and as soon as they are forwarded by the aforesaid Regional Director, copies of Respondent Employers' notices attached hereto marked "Appendix A" and "Appendix B." as (f) Deliver to the Regional Director for the Thirteenth Region signed copies of "Appendix C" for posting by the Respondent Com- panies. Copies of said notice, to be furnished by said Regional Direc- tor, shall, after being signed by the Respondent Union's representa- tives, be forthwith returned to said Regional Director for such posting. (g) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. [Text of Direction of Elections omitted from publication.] 3s 34 Posting of employer notices by Respondent Union at the Employer's garages shall be limited to posting only the notice of the Employer -owner of the garage involved 36 Chairman McCulloch and Member Brown took no part in the consideration or decision of these cases. APPENDIX A 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, as amended, we hereby notify you that : WE WILL NOT encourage membership in Local 777, Taxicab Drivers, Maintenance and Garage Helpers Union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization of our employees, by discriminating in regard to hire, tenure, or any term or condition of employment, except to the extent authorized by Section 8 (a) (3) of the Act, as inodified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. WE WILL NOT give effect to any and all agreements and con- tracts, supplements thereto or modifications thereof, or any super- seding contract with the above-mentioned labor organization. WE WILL NOT contribute financial or other support to the above- named labor organization. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL withdraw and withhold recognition from the above- named 'labor' organization, or any successor thereto, unless and until it shall have demonstrated exclusive majority representa- tive status pursuant to a Board-conducted election among our employees. WE WILL NOT give effect to any checkoff cards, heretofore exe- cuted by our employees, authorizing deductions from their wages for remittance to the above-named labor organization. WE WILL NOT interfere with, restrain, or coerce our employees or applicants for employment, in any other manner, in the exer- cise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives of their own free choice, and to engage in other concerted activities for the purpose of collective bargaining or other mu- tual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL jointly and severally with Local 777, Taxicab Drivers, Maintenance and Garage Helpers Union, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, make whole Louis Linzer for any loss of pay he may have suffered by reason of the discrimination practiced against him. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by an agreement requir- ing membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. We will not discriminate in regard to hire or tenure of em- ployment, or any other condition of employment, against any em- ployee because of membership in, or activities on behalf of, any such labor organization. . CHECKER TAXI 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. CHECKER TAXI COMPANY, INC. APPENDIX B NOTICE TO ALL EMPLOYEES 633 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, as amended, we hereby notify you that : WE WILL NOT encourage membership in Local 777, Taxicab Drivers, Maintenance and Garage Helpers Union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization of our employees, by discriminating in regard to hire, tenure, or any term or condition of employment, except to the extent authorized by Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL NOT give effect to any and all agreements and con- tracts, supplements thereto or modifications thereof, or any super- seding contract with the above-mentioned labor organization. WE WILL NOT contribute financial or other support to the above- named labor organization. WE WILL withdraw and withhold recognition from the above- named labor organization, or any successor thereto, unless and until it shall have demonstrated exclusive majority representa- tive status pursuant to a Board-conducted election among our employees. WE WILL NOT give effect to any checkoff cards, heretofore ex- ecuted by our employees, authorizing deductions from their wages for remittance to the above-named labor organization. WE WILL NOT interfere with, restrain, or coerce our employees or applicants for employment, in any other manner, in the exer- cise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives of their own free choice, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL jointly and severally with Local 777, Taxicab Drivers, Maintenance and Garage Helpers Union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, reimburse Leon Lewison, David Alter, Gerald J. Kozel, and David Levin for all union fees, dues, assessments, and 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other moneys unlawfully exacted from them as the price of their employment. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. We Will not discriminate in regard to hire or tenure of em- ployment, or any other condition of employment, against any em- ployee because of membership in, or activities on behalf of, any such labor organization. YELLOW CAB COMPANY, 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 C NOTICE TO ALL MEMBERS OF LOCAL 777, TAXICAB DRIVERS, MAINTE- NANCE AND GARAGE HELPERS UNION, INTERNATIONAL BROTHERHOOD or TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AND TO ALL EMPLOYEES OF CHECKER TAXI COMPANY, INC., AND YELLOW CAB COMPANY 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, as amended, we hereby notify you that : WE WILL NOT give effect to our current agreements, or to any other contract covering employees of the above-named employers, unless and until we shall have demonstrated our majority repre- sentative status pursuant to a Board-conducted election among said employees. WE WILL NOT cause or attempt to cause Checker Taxi Company, Inc., or Yellow Cab Company to discharge or to discriminate in any other manner against their employees in regard to their hire or tenure of employment or any term or condition of em- ployment, except as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT restrain and coerce employees in the exercise of the rights guaranteed in Section 7 of the Act by threats, by acts CHECKER TAXI COMPANY, INC. 635 of force and violence, by surveillance of rival union organizers and their activities, or by any like or related conduct. WE WILL NOT in any other manner restrain or coerce employees; of, or appliacnts for employment with, Checker Taxi Company, Inc., and Yellow Cab Company, in the exercise of their right to self-organization, to form, join, or assist labor organizations, to, bargain collectively through representatives of their own free choice, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL jointly and severally with Checker Taxi Company, Inc., make whole Louis Linzer for any loss of pay he may have suffered as a result of the discrimination practiced against him. WE WILL jointly and severally with Yellow Cab Company re- imburse Leon Lewison, David Alter, Gerald J. Kozel, and David Levin for all fees, dues, assessments, and other moneys unlawfully paid us as the price of their employment. LOCAL 777, TAXICAB DRIVERS, MAINTE- NANCE AND GARAGE HELPERS UNION, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, yVARE- HOUSEMEN AND HELPERS OF AMERICA, 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. INTERMEDIATE REPORT STATEMENT OF THE CASE Charges having been filed and served in each of the above -entitled cases; orders consolidating said cases ; complaints and notices of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board; and answers having been filed by each of the above -named Respondents, a hearing involving allegations of unfair labor practices in violation of Section 8(a)(1), (2), (3), and (4) and 8(b)(1)(A) and (2 ) of the National Labor Relations Act, as amended, was held in Chicago, Illinois, on various dates between January 19 and March 11, 1960, before the duly designated Trial Examiner. All parties were represented by counsel and were afforded full opportunity to present evidence pertinent to the issues. Oral argument was waived After the hearing the parties requested, and the Chief Trial Examiner granted, an extension of time for the filing of briefs to June 14, 1960. Full consideration has been given to briefs received. Also after the hearing each Respondent filed with the Trial Examiner a written motion , hereby made a part of the record, to .dismiss all allegations relating to it. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Disposition of these motions is made by the following findings, conclusions, and recommendations. On June 27 there was received a stipulation signed by all parties as to proposed corrections of the record. The stipulation is hereby made a part of the record, and the corrections are ordered to be made in accordance therewith. Upon the entire record, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS CHECKER AND YELLOW The Respondent Yellow is a Maine corporation, having its principal office and place of business in Chicago , Illinois, where it is engaged in the business of trans- porting the general public for hire in taxicabs. The complaint contends and the answer admits that during the calendar year 1958 the Respondent Yellow: (1) Purchased and received in Illinois vehicles, gasoline and related products valued at more than $ 1,500,000 which were shipped directly from points outside the State of Illinois; and (2) during the same period received revenue in excess of $1,000,000 from the general public using its facilities. The Respondent Checker is a New York corporation, having its principal office and place of business in Chicago , Illinois, where it is engaged in the business of transporting the general public for hire in taxicabs . The complaint contends and the answer admits that during the calendar year 1958 the Respondent Checker: (1) Purchased and received in Illinois vehicles, gasoline and related products valued at more than $ 1,000,000 which were shipped directly from points outside Illinois; and (2) during the same period received revenue of more than $ 1,000,000 from the general public using its facilities. Without more, in the opinion of the Trial Examiner, the Board's jurisdictional requirements as to each of the Respondent Companies have been met. ' Contrary to the contentions of the Respondents , it is concluded and found that said Re- spondents are engaged in commerce within the meaning of the Act and that, as the court said in N.L.R.B. v. Baltimore Transit Company, et al., 140 F. 2d 51 (C.A.. 4), a "stoppage of its [their] operations by threatened industrial strife would result in substantial interruption to or interference with the free flow of commerce." 2 II. THE LABOR ORGANIZATIONS INVOLVED Local 777, Taxicab Drivers, Maintenance and Garage Helpers Union, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Local 777, Democratic Union Organizing Committee, are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Setting and major issues First, as to the hearing. Upon arriving at the hearing room the Trial Examiner was met by, and introduced to, two stalwart members of the Chicago police force who were there, the Trial Examiner was informed, to help keep order. Yet throughout the extended hearing there was neither disorder nor threatened dis- order. All counsel involved were courteous, cooperative, and seldom sarcastic, even to each other. Cabdriver witnesses waited patiently. A number of plain- clothesmen, apparently assigned as round-the-clock bodyguards of Dominic Abata, leader of the charging individuals, quietly dozed. Byline staff men of Chicago dailies doodled . It was a peaceful proceeding. As to the evidence in general it also failed to develop according to advance billing explicit in the complaint and implicit in General Counsel's oral assurances as to what he intended to prove. Of actual violence but a single black eye was un- curtained, as will be described below. Of terroristic tactics, the chief vehicle seems to have been a white Cadillac which for some months had been following Abata and his police bodyguards around the streets of Chicago. And the main character, 1 See Red and White Airway Cab Company, 123 NLRB 83 2 In their briefs counsel for the Respondents note that at the hearing the Trial Examiner stated that he did not expect to issue his Intermediate Report until the Board had decided the jurisdictional question. The statement was made early in the proceedings. Six months have passed. In the interest of expediting matters the Trial Examiner believes that the issues raised in these proceedings should be resolved. In the event the Board does not assert jurisdiction, of course, it will presumably set aside this report. CHECKER TAXI COMPANY, INC. 637 one Joseph Glimco, alleged Chicago racketeer and Abata's successor as head of Local 777, Taxicab Drivers, did not show at the hearing, although the Trial Ex- aminer granted General Counsel a long adjournment in order that he might obtain enforcement of a subpena calling for his appearance. Except for the existence and enforcement of a closed-shop contract up to Jan- uary 1959-a fact which the Respondents did not contest at the hearing-it appears that action and conduct by each of the Respondents, out of which the major issues stem, in large part occurred after Abata, who had not driven a cab for either Re- spondent Company since 1937, in March 1959 testified before the Senate's McClellan Committee that Glimco and other officers-who had also served with Abata himself for many years-had been engaging in certain "racketeering." Abata's testimony re- ceived a good deal of contemporary notice in the Chicago newspapers, and upon his return from Washington he assumed leadership of a group of dissident members of Local 777, Taxicab Drivers, and set up an organization labeled Democratic Union Organizing Committee, which here will be called DUOC. DUOC then began an intensive campaign to win adherents, and to obtain through an election Board certification of itself as the bargaining representative of Checker and Yellow employees, in place of Local 777, Taxicab Drivers, which had been recognized as such since 1937, when Abata himself led a strike resulting in the closed-shop contracts. Abata's move to oust Local 777 from its bargaining status was not unopposed by the latter's leadership. General Counsel alleges both that responsible agents of Local 777 engaged in illegal and coercive conduct in such opposition to DUOC and that the two employers, through their responsible agents, rendered illegal assistance to Local 777. It is claimed that the employers discriminatorily fired certain cab- drivers-and refused to hire Abata-at the behest of Local 777, and permitted agents of the latter to campaign on their premises while prohibiting Abata's group from doing likewise. In summary, the chief issues in this case arise from events which General Counsel claims, and the Respondents deny, establish that the Respondents violated various sections of the Act in an effort to prevent Chicago cabdrivers and garage workers from shifting their allegiance from Local 777, under Glimco's leadership, to DUOC, under Abata's leadership. Concerning improper use of union funds, alleged against Glimco by Abata before the Senate Committee, or claimed against Abata by counsel for Local 777 in an offer of proof, the Trial Examiner considers all such evidence, testimony, claims, and counterclaims as appear in this record to be wholly immaterial to the issues raised by General Counsel or by the Respondents. It was made clear early in the hearing that Abata's testimony before the Senate Committee was admitted only to establish that he had made public charges against the leadership of Local 777 which, as reported in the local press, might reasonably be inferred to have aroused re- taliatory motives, which might later have been expressed in action violative of this Act. The Trial Examiner draws that inference.3 For the purpose of clarity and brevity, insofar as possible, the events in issue will be described in the order of their occurrence. B. The illegal contract issue The complaint places in issue the question of illegality of contracts which ad- mittedly were maintained and enforced until January 1959; the parties being the two Respondent Employers and Local 777, two covering chauffeurs and two relat- ing to garage workers. In substance it is General Counsel's contention that each of the contracts covering the first group was unlawful on its face because it con- tained closed-shop provisions, prohibited since passage of the Labor Management Relations Act in 1947; and that the contracts covering the garage workers were likewise unlawful because throughout the period of the maintenance of their union- shop provisions (requiring membership within 30 days) Local 777 was admittedly not in compliance with the filing requirements of Section 9(f), (g), and (h) sections which at the material time were in effect. Documentary and oral evidence fully support General Counsel's contentions as to both the driver and garage workers contracts. The first contains the following provision: In passing, the Trial Examiner states that he draws this inference from the facts. He is unpersuaded by General Counsel's singular assertion in his brief : No reasonable mind not blinded by the bias and prejudice of advocacy can contend that this testimony did not trigger the DUOC movement and Respondent's resistance to it. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ARTICLE 2. EMPLOYMENT. (a) The Company hereby agrees that, as chauf- feurs of the taxicabs owned or operated by it, it will employ only and exclu- sively members of the Union who are in good standing and whose dues have been fully paid up to and including the previous months, and that it will not suffer or permit its taxicabs to be operated by other persons or parties, except as herein provided .4 The answer of Local 777 admits the complaint's allegation of noncompliance. Since these four contracts were entered into in 1956, exceeding the 10(b) period, the question of their execution is not in issue, merely their maintenance and en- forcement within the 10(b) period: which began, in the cases involving Local 777 and Checker, 6 months before issuance of the initial charge in October 1958. It appears that there is small question as to the fact that the Respondents, and each of them, were in clear violation of the law during material periods by main- tatmng and enforcing illegal contracts. The major dispute is whether such viola- tion may be properly found and remedy invoked because not until early October 1958 did the Board make public announcement that it would assert jurisdiction over enterprises such as the Respondent Employers. (In his able brief, counsel for Local 777 urges further narrowing of the period by citing Red and White Airway Cab Company, 123 NLRB 83, decided in March 1959, as the first time the Board had actually asserted jurisdiction over local taxicab concerns.) In his well-documented brief General Counsel 5 cites a number of cases in sup- port of his position that violation should be found and remedy invoked. The Trial Examiner, without detailing his argument here, finds merit in his contentions. The essential point, it seems to him, is well summed in a recent decision of the United States Court of Appeals for the Second Circuit in N.L.R.B. v. Pease Oil Company, 279 F. 2d 135, where the court said: Concededly, at the time of the respondent's unfair labor practices, the Board had announced that it would not hear complaints which involved employers as small as respondent, even though respondent's participation in interstate commerce at all times brought it within the Board's statutory power and within the directives of the Act. Thus respondent's "reliance" was simply an expecta- tion that it might pursue whatever labor policy it saw fit, safe from any Board interference no matter how many violations of the Act it might commit. We have no hesitation in disappointing this expectation. An Act of Congress im- poses a duty of obedience unrelated to the threat of punishment for disobedience. Pursuing the matter of contracts to the date of the hearing, it appears that in January 1959, and since then, the Respondents have been parties to contracts which contain no provisions claimed by General Counsel to be, on their face, unlawful. It is his claim, in substance, that the illegal taint remains and that all such contracts should be set aside until employees themselves have had an opportunity to assert their freedom of choice-a freedom plainly denied them under the earlier agreements Testimony of employer witnesses establishes that employees were given no such choice upon expiration of the old and unlawful contracts and before the execution of the new. The Trial Examiner finds merit in General Counsel's contention The coercive effect upon some thousands of employees already hired could not reason- ably be remedied by the stroke of a pen allowing future employees some degree of choice Under both the old and new contracts union initiation fees and dues were and have been deducted. In summary, the Trial Examiner concludes and finds that the Respondents Checker and Yellow by maintaining and enforcing the said unlawful agreements from April and October 1958, respectively,6 to January 1959 have: (1) Discriminated against employees by requiring membership in a labor organization as a condition of em- ployment to encourage membership in a labor organization; (2) rendered unlawful assistance to a labor organization; and (3) interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act By the same conduct Respondent Local 777 has (1) caused the Respondent Employers to violate Section 8(a)(3) of the Act and (2) coerced and restrained employees in the exercise of rights guaranteed by the Act. 4 The Trial Examiner considers the exceptions to he immaterial "The brief is signed by Benjamin K. Blackburn. who did not appear for General Counsel at the hearing 6 The first charge involving the Respondent Yellow was filed April 13 1959 CHECKER TAXI COMPANY, INC. 639 C. The discriminatory discharge and refusal to hire issues 1. Louis Linzer Linzer's case is the only one under this category which involves an alleged un- lawful discharge occurring before Abata's appearance at Senate committee hearings in March 1959. The issue is simple. Much superfluous testimony regarding the discharge and reemployment which admittedly took place need not be related here. The sole ques- tion is whether the Respondent Checker discharged driver Linzer in October 1958, at the behest of the Respondent Local 777, thereby relegating to a labor organiza- tion its employer powers and encouraging membership in it. Facts established by Linzer's credible testimony, in the opinion of the Trial Exam- iner, support General Counsel's position. Relevant facts follow. (a) Cabdriver Linzer, an employee of the Respondent Checker, was hospitalized during the summer of 1958. Like other employees he was covered in the matter of such expenses by the Local's hospital and welfare plan. He returned to work on September 29, 1958. (b) Both before and after his return to work Linzer and Joseph Glimco, head of Local' 777, engaged in a running dispute concerning payments which the employee contended were due him. Finally, about October 21, the dispute came to a climax when Linzer made his protests to both Glimco and one Gerald Coca, the Local's office manager and trustee. Glimco instructed Coca to telephone George McDonald, a vice president of the Respondent Checker, and have Linzer fired. Coca did so, and in explanation claimed that Linzer was a sick man, not fit to drive a cab in public transportation. Glimco then told Linzer that he was through, and to "get out." (c) Linzer proceeded to McDonald's office, where the vice president told him in effect that since the Union had thrown him out there was nothing he could do about it. (d) The next day, October 22, Linzer filed charges at the Board's Regional Office against both Checker and Local 777. (e) Linzer was reinstated, following conferences with Board agents, on Oc- tober 31. (f) During the hearing the parties conceded that withdrawal of the charges filed by Linzer was not approved by the Regional Director. The Trial Examiner can place no reliance upon McDonald's testimony concern- ing the foregoing events in which he was involved. He both admitted and denied having had a telephone conversation with Coca on October 21 and finally con- fessed that he was "mixed up." It appears to be the Company's defense that not until Coca's talk with McDonald that day did it have knowledge of Linzer's pre- vious hospitalization, and that when McDonald learned of it on October 21, and checked with company records, Linzer was laid off, being told that a man should not be driving a cab who "goes into a coma." The extravagance of this claim and its lack of merit is shown by the simple fact that for a period of about 3 weeks before October 21 and from the last of October until the hearing date Linzer appears to have worked without disability incident. Contrary to McDonald's claim, the Trial Examiner concludes and finds that the vice president discharged Linzer because Local 777 demanded such action, not because of Linzer's health, and that the union officials made the demand, not because of the driver's health, but because of their irritation with him for pressing his monetary claims. It is further concluded and found that by such conduct the Respondent Checker violated Section 8(a)(1), (2), and (3) and the Respondent Local 777 violated Section 8(b) (1) (A) and (2) of the Act 2. Dominic Abata General Counsel contends that on April 10, 1959, Dominic Abata was unlaw- fully refused employment as a cabdriver by both Checker and Yellow, and that the Respondent Local 777 itself violated the Act by causing the two employers to violate Section 8(a) (3). There is no dispute as to the following relevant facts: (a) Abata has not driven a cab for either employer since 1937, when he led Local 777 on strike. (b) Some 22 years after his last employment he appeared first at Checker's employment office on April 10, 1959, and later the same day at Yellow, and said be was seeking employment. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) He was hired by neither Respondent . Although according to his own testi- mony he was told by Vice President McDonald, at Checker, to call him about his application the next day, April 11, also according to his own testimony on the same day, April 10, he proceeded to the Board's Regional Office and signed a charge claiming he had been refused employment that day by both Checker and Yellow. In this case the Trial Examiner believes it to be unnecessary to reach the question of refusal to hire. As it is essential in a refusal-to-bargain issue to establish a bona fide request to bargain, so in a refusal-to-hire issue it should reasonably be required that a bona fide application for hire be made. The Trial Examiner is of the opinion that credible evidence does not support a finding that Abata actually was seeking employment by either of the Respondents, or anyone else, on April 10, but only sought some pretext to get his quarrel with Glimco before a Federal agency by way of a charge.? Abata had been receiving a deal of newspaper publicity, as he testified, about his appearance before the Senate Committee and because of his organizing of DUOC. Wherever he went he was accompanied by police bodyguards-even to the employment offices of Yellow and Checker. As to the point of not hiring him, the Trial Examiner considers that the Re- spondents' employment officials who testified about it were considerably less than candid. Their claim that he was not hired because of his bad accident record back in 1937 is as flimsy as a piece of old manuscript. In a period of more than two score years even a woman driver might reasonably be expected to improve. Were the actual reason for failure to hire Abata to be reached by the Trial Examiner, it would probably be that neither cab company wanted to hire a driver under constant police guard or one engaged in so heated a public dispute with his predecessor as head of Local 777. So far as the Trial Examiner is concerned, the issue is disposed of by the con- clusion and finding that allegations of the complaint regarding it lack sufficient proof, there being no convincing evidence that Abata made a bona fide application for employment. 3. James Gordon James Gordon, who had been driving a cab for the Respondent Checker since the preceding October, was discharged on May 9, 1959, and 2 days later was refused employment by the Respondent Yellow. The complaint alleges that he was both discharged and refused employment because of his activities on behalf of DUOC and/or because he gave testimony under the Act, and also that the Respondent Local 777 caused each employer to take its unlawful action. The alternate claim may quickly be disposed of. If evidence somewhere exists that Gordon gave testimony "under the Act," at any place or time before the dis- charge, it failed to find its way into the record. And no mention of the 8(a)(4) issue is made by General Counsel in his exhaustive brief. Ample evidence establishes three facts essential to the support of the complaint: (1) Gordon was indeed active in DUOC organization activity; (2) responsible agents of Local 777 were aware of this activity and openly opposed it; and (3) he was discharged by Checker and refused employment by Yellow. Other facts necessary if General Counsel's contentions are to be sustained are notably lacking of any direct evidence: (1) That the knowledge of Gordon's DUOC leadership possessed by Local 777 was shared by either Checker or Yellow; and (2) that Local 777 in any way communicated its demand or wish to either employer that Gordon be removed from or denied employment for any reason ( as in the case of Linzer). Gordon was DUOC's recording secretary, and with Abata and others openly solicited signatures at various public cabstands. On May 2, while engaged in this activity, he was pushed from behind by an agent of Local 777 and a petition was grabbed from his hand by one of two such agents. On May 8 he went to a local court to obtain a warrant against two union agents. On May 9 he was fired. There is little doubt that if consideration is limited to these events, and their chronology, the suspicion is strong that Gordon was fired because of his DUOC activity. Consideration may not properly be withheld from other factors, however, estab- lished by Gordon's own testimony. When fired by his garage manager, Dermody, on May 9, he was told that it was because of his "low bookings" the day before. His bookings indeed were low on May 8-being about $3, or some $15 less than the 7 Except for Linzer's charge in 1958, withdrawal of which the Regional Director did not approve, Abata's were the first charges to be filed in these consolidated cases. CHECKER TAXI COMPANY, INC. 641 average for the day. Shortly before his discharge, April 26 and 27, he had been warned about low bookings.8 The reason for his "low bookings" on May 8 was, unquestionably, his failure to drive the cab looking for business. He stated that he parked the cab from about 10 a.m. until 3:30 p.m., during which time he was engaged in his own affairs of procuring warrants. Gordon admitted knowledge that taking a cab from the garage on personal business was a violation of a company rule. There is sharp dispute as to whether Gordon had, in effect, been given per- mission on May 7 by Dermody to use the company cab for the purpose described by Gordon. From his observation of the two witnesses, and considering the inherent probabilities, the Trial Examiner believes and finds that, contrary to Der- mody's denial, Gordon did tell him on May 7 that he would "be in court" the next day, that he did not know how long he would be, and that Dermody said "all right." Contrary to the implication in Gordon's testimony, however, the Trial Examiner does not believe that Gordon gave Dermody to understand that he was seeking permission to use a company cab for this purpose. And Gordon's own testimony is notably lacking of any claim that he told Dermody the nature of his errand at court. Nor is there substantial evidence in the record to support a finding that between the time Gordon completed his court errand and the next afternoon, when he was discharged, Dermody or any other company official learned the nature of it. It is reasonable to infer that union officials became aware, since at least two of them were the parties against whom the warrant was sought, but it does not follow that company officials were so informed . Even if this inference were to be drawn, it would be necessary to infer further that, instead of the "low bookings" cause, the real reason was his obtaining a warrant against Local 777's representatives. The Tnal Examiner is of the opinion that a bridge from suspicion to a finding must rest upon more secure piling than one inference after another. A legal cause for the discharge existed-Gordon's own testimony establishes that fact. He had previously been warned. The preponderance of credible evidence, in the opinion of the Trial Examiner, supports the Respondent Checker's contention, and fails to support the allegations of the complaint concerning Gordon. It is undisputed and established that the two employers customarily exchange information regarding their discharge of cabdrivers. When Gordon applied at Yellow's employment office, his own testimony shows that the hiring official first turned to -a file, observed that he had been discharged from Checker for low book- ings, and declined to hire him. There is no competent evidence that he was denied employment for any other reason than the one given him at the time. 4. Gordon P. Phinisey Depending upon which of two opposing assumptions is chosen as a viewpoint from which to appraise the facts concerning this Yellow driver's discharge-(1) That a conspiracy existed to oust from their jobs DUOC leaders, or (2) that DUOC leaders contrived willingly to submit themselves as 8(a)(3) victims in furtherance of their efforts to discredit Local 777-the evidence leads to as many suspicions, equally tenable, as to the reason for his dismissal. There can be little question that Phinisey was an active associate of Abata in organ- izing DUOC, or that Charles Shulman, manager of the garage out of which he worked, was not only aware of his activity but also was without compunction in expressing his disapproval of it. Early in May Phinisey became secretary-treasurer of DUOC, and shortly before this was one of several employees who brought suit against Local 777 to freeze union funds. Contrary to Shulman's denials, the Trial Examiner believes and finds, in accordance with Phinisey's testimony that: (1) the manager interrogated him on April 3 as to whether he had attended the first organiz- ing meeting called by Abata on April 2; and (2) shortly after his joining in the suit against Local 777 in mid-May Shulman asked him if he knew what he was doing. It is also found that 2 or 3 days before his discharge on May 26, when Phinisey and Abata were soliciting signatures for DUOC petitions inside the garage, Shulman sent them out, although on the day of the discharge he permitted agents of Local 777 to solicit on the premises signatures to "loyalty" petitions. As a witness, Shulman 8 When first called as a witness Gordon admitted that he "could have" been , and that it was "possible" he had been, so warned. In view of this admission the Trial Examiner cannot rely upon his later denial , as a rebuttal witness some weeks later , that such warnings had been received 599198-62-vol. 131- '42 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admitted that he had seen Phinisey in Abata's company, and that he became aware of this driver's part in the suit. These facts tend to support suspicion ( 0, noted above. On the other hand, credible evidence shows that: (1) On numerous occasions after, but none before (so far as the record indicates ), he became active in DUOC he reported trouble with his cab and left work without asking for a cab replacement, which was his right and privilege had he wished to work; (2) he did not ask for 'breakdown" pay, which was his privilege when his cab was inoperative ; ( 3) when he was given his discharge slip on May 26 and told to go to the main office for his pay, he first went to the Board office to file charges; 9 and (4 ) he made no protest to higher officials concerning his discharge and sought no appeal , as was his right. These facts tend toward suspicion (2). The real problem here is whether gall relevant facts permit suspicion ( 1) to become a reasonable conclusion of fact. The Trial Examiner is of the opinion that they do not. This conclusion , he believes, is barred by the following factors: (a) Had Shulman , independently or at the instigation of Local 777 , sought a pre- text for letting this active DUOC officer go, the opportunity presented itself soon after the first DUOC meeting of April 2. Phimsey did not report for work at all from April 4 to 8. During this period, it is undisputed that Shulman asked driver Zagar, also a DUOC adherent, what the matter was with Phinisey . Zagar said he "guessed" he was afraid to come back because he had attended the April 2 meeting. Shulman instructed Zagar to tell Phimsey to return to work-that he had nothing to worry about. And Phinisey did come back to work. (b) At the hearing General Counsel specifically disavowed any claim that Local 777 was in any way responsible for Phinisey 's cab troubles , which the driver cited as having occurred within increasing frequency in April and May . The Trial Examiner cannot say that there is no merit in Respondent Yellow's argument to the effect that it would be less than reasonable to believe that "the company would knowingly, permit its driver to take out a cab with faulty brakes and invite personal injury judgments." (c) It is undisputed that on occasions when Phinisey brought his cab back, claim- ing mechanical or other trouble, the driver who relieved him on the same cab and on the next shift had no such difficulties. (d) Phinisey admitted that he never "bothered " to ask for "breakdown" pay when he broughtt his cab back to the garage-to which he was entitled under the existing contract. (e) Shulman had warned Phinisey about his "low bookings." 10 (f) On May-10 he had his cab out-only an hour and -a half, returning it to the garage claiming breakdown . He did not ask for another cab and his bookings were $2 60. (g) On May 13, after the same short period of working, he brought his cab back and did not ask fora replacement He booked $5.35. (h) On May 25 , the day before his discharge, he brought his cab in after only 2 or 3 hours and left it at the garage, stating that he was worried about his mother getting into a hospital . That day he booked only $4 65. (i) On May 26 he was given a "yellow" slip, stating that he was discharged for being "low booker and irregular." The foregoing factors show, in the opinion of the Trial Examiner , that on May 26 the Respondent Yellow had lawful cause to discharge Phinisey The existence of such cause,' the Trial Examiner further believes ; overcomes the mere suspicion that the real reason for the dismissal was his activity on behalf of DUOC. In short, the Trial Examiner concludes and finds that as to this employee General Counsel has failed to sustain his burden of proof. 5. Joseph Matenko For about 3 years until June 10, 1959, Joseph Matenko was a cabdriver for the Respondent Yellow. In March 1959 he was laid off for several days by Myron Wilkins, garage superintendent , because of his bad accident record. In April of the same year Wilkins again discharged him after his cab had been found, unattended, by an inspector who was unable to locate him . Upon Matenko's appeal to Wilkins' superiors, he was reinstated. 9 His hasty action was similar to that of Abata, who filed his charge against Yellow before calling, as told to do, to see if the refusal was final. 11 The Trial Examiner cannot accept as true Phinisey's claim that lie had not been so warned Daily records and averages were compiled by management and, unless it be assumed that the garage manager was remiss in his duties , it is reasonable to believe that he would call a driver's attention to his failure to make money for the Company. CHECKER TAXI COMPANY, IN C. 643 At midnight, June 9, in answer to a radio call from another Yellow driver, a com- pany inspector found Matenko asleep in his cab, with motor running, parked on a public street . The inspector had difficulty rousing Matenko and called in for a tow truck. The cab was towed in and, based upon the inspector's report, Wilkins for the third time in a period of 4 months discharged Matenko. This time Wilkins' action was upheld and Matenko has not been reinstated. That, in essence, is the one story of Matenko 's discharge of June 10, placed in issue by the complaint, which credible and undisputed testimony will support, in the opinion of the Trial Examiner . Called as a rebuttal witness, Matenko admitted both of the earlier disciplinary actions-and said he was playing cards with friends when his cab was towed in in April. General Counsel contends that Matenko was fired on June 10 because he was a supporter of Abata and DUOC and not of Glimco and Local 777. The Trial Ex- aminer is unable to find sufficient credible testimony to support this contention. Without reviewing Matenko's testimony in its many details, the Trial Examiner states here that he finds a good part of it confused, self-contradictory , and unreliable. Indeed it would appear that General Counsel himself had reservations concerning Matenko's credibility, since he recalled him as a rebuttal witness, as the record shows, mainly to "refresh" his recollection as to testimony he had given weeks earlier on direct and cross-examination . The Trial Examiner, who conducted the hearing and believes he was awake throughout, can find no merit in the following quotation in General Counsel's brief: But more important . is the impression he (Matenko) made on the witness stand. Matenko testified in a frank , forthright, straightforward manner. . . He did not hesitate in his testimony but, especially , answered in the manner of a man convinced of the justice of his cause and possessed The strength of his convictions and of the essential truth of his testimony. The brief is signed not by counsel for General Counsel who tried the case, but by someone else who, if present at the sessions , is not shown to have been by the record and is not known to have been by the Trial Examiner. So far as Matenko's activity in DUOC is concerned, it appears to have been limited to attendance at the first meeting called by Abata, held on April 2. Accord- ing to his own testimony he did not go to either of two other meetings called by DUOC-on April 9 or May 13. There is no evidence that he in any way solicited for DUOC or against Local 777. He admitted-that he remained a member of Local 777 until 3 weeks after his June 10 discharge, when he took out a withdrawal card. Thus there appears to have been no sound or credible reason why Local 777 should have pressured the Respondent Yellow to fire him, or why the Respondent Yellow should have yielded to such pressure . The fact is, as Matenko admitted, that he was .disciplined for abandoning his cab sometime after the one DUOC meeting he at- tended, but was returned to work.ii His claim that Respondent Yellow management told him, in effect, at his appeal from the last discharge, that he would be permitted to return if Local 777 officials gave their approval, and that such officials failed to act on the matter, the Trial Examiner is unable to credit. In short, the Trial Examiner concludes and finds that as to Matenko, credible evidence is insufficient to sustain the allegations of ,the complaint. 6. Chester Gans As to this individual , a driver for Yellow, the Trial Examiner can place no reliance upon any of his testimony bearing upon General Counsel's claim that he was dis- charged at the behest of Local 777 or because of his activity on behalf of DUOC Indeed , in Gans' testimony the Trial Examiner finds no substantial claim on his part that he was an active adherent of DUOC Gans did testify that he had refused to sign a "loyalty" petition for Local 777 when asked to do so by that organization's agents . Yet Local 777 produced such a petition. u Furthermore , according to Matenko 's testimony, there was little in his interview with Glimco to which he said he was summoned after the April 2 meeting , to indicate that Local 777 was likely to seek reprisal for his having attended that meeting "There was no profanity used," he testified , "but it was merely Glimco informed me that if I wanted anything I could call his attention to it without enlightening other drivers, that not ,everyone is as intelligent as you, but if you have a peeve give it to me personally . . he didn 't want me to attend anymore of the meetings and just to be a member of this par- ticular local and not to be sympathetic toward Abata's " 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bearing his signature, and a fellow driver at his garage testified without refutation that Gans signed it for him. Gans was not recalled to rebut this documentary evidence. At the hearing Gans said he signed, along with others, certain papers previously referred to as a suit against Local 777, or its officers. Yet documentary proof establishes that when Local 777 brought a charge of dual unionism against him in May, he convinced the officials that not he, but someone by the name of Gaus, had signed, and the charge was formally withdrawn and Gans was cleared. General Counsel casually refers to this point as a mere "comedy of errors." On the contrary, it appears plain that Gans misrepresented the truth either to Local 777 or at the hearing. In any event, it is established that he did sign the petition of Local 777, and that more than 6 weeks before his discharge on July 15 Local 777 had with- drawn its charges against him. Thus there is no evidence that on July 15 Local 777 had any reason for wishing to have Gans fired. Furthermore, credible evidence establishes that Gans was discharged following an accident he had had on June 9-it being his fourth accident within a year. A com- pany rule provides that four accidents within such period is sufficient cause for dis- charge. Gans appealed this discharge, and it was cancelled, the official warning him, however, that he'was being given his last chance, and that another rear end collision would end his driving for Yellow. On July 14 he rammed another car and, while it appears that damage was slight, his cab had to be towed in and he was discharged the next day. Substantial evidence showing that legal cause existed for Gans' discharge, and there being a dearth of evidence that any illegal motive existed, the Trial Examiner con- cludes and finds that General Counsel has failed to sustain his burden of proof as to this employee. D. Restraint and coercion issue involving Respondent Local 777 With all due respect to General Counsel's prolixity at the hearing and in his brief in the use of such virile terms as "weapons," "battles," "war," "victims," "attacks," "hoodlum," "muscle," "sordid," "stunned," "fights," "merciless," and "vicious," the Trial Examiner finds very little credible evidence of incidents during this open contest between the two cabdriver groups which warrant such harsh characterization. While zeal in presenting or pleading a cause is a quality to be admired, uncurbed it is likely to lead over the brink of reason into the abyss where lie-or should lie- all unproven cases. Unwittingly, perhaps, toward the close of his brief General Counsel himself provides basis for this point: And, finally, there is Zagar's story of the passenger he picked up twice on State Street. Who the man was is still a mystery but his words-"You know you can find your head in your lap" and "You have heard of a concrete vest, haven't you. . . Well, you had better straighten up and fly right, or we will find you in one"-have a familiar ring. If identity at the time of his brief was still a "mystery" to General Counsel, as it was to Zagar when he testified, how may the Trial Examiner reasonably attribute the remarks to Glimco or a Glimco agent? Merely because Glimco himself, on an- other occasion and in the county building, slurringly said to Abata as the latter stood in the company of his police bodyguard: "You'll find your head in your lap"? Such reasoning is too painfully reminiscent of the judicial murder of two good men in the Trial Examiner's home State a generation ago. So far as this record shows, not a single head was rolled in anyone's lap during the controversy, nor has any driver been found encased in a concrete vest. In the period of a year since Abata started DUOC, and among many thousand cabdrivers in the city of Chicago-which neither Hecht, Hansen, nor Sandburg ever prescribed as a retreat for peace-seeking priests-and where, even during the course of the hearing, the State's attorney and the mayor were casting epithets at each other, there is evi- dence of only a single item approaching "violence": one black eye. That item deserves first consideration. It occurred on May 4, and involved driver Everett Clark, an Abata supporter, and Leo Siewert, a Glimco supporter and admit- ted agent of Local 777. In substance, it is Clark's claim that while he was merely sitting in his cab awaiting passengers at a railroad cabstand Siewert and two other Local 777 representatives walked by, and that without his having said anything to him, Siewert came around the cab and smashed him in the eye. The essence of Siewert's testimony is that as he walked by the cab, Clark called him a "son-of-a- bitch," and that as he went around the rear of the cab Clark got out and came at him swinging. There is no doubt that Clark was hit in the eye. Siewert admitted the fact, and a picture promptly appeared in a local newspaper. The Trial Exam- CHECKER TAXI COMPANY, INC. 645 iner can believe neither version in its entirety. Having observed both witnesses, and not without his share of human experience, the Trial Examiner is convinced, and finds, that while Siewert did not hit Clark in self-defense and Clark did not swing at him, Clark did provoke the blow by calling the name. In any event, it is clear that at the time Clark was not engaged in soliciting for DUOC, and that later he was sufficiently unconvinced as to the merits of the matter so that, without any remuneration from Siewert, he gave him a full, written release in a civil suit. Under the circumstances, the Trial Examiner cannot find Local 777 responsible for the black eye, or that the incident constituted a violation of Section 8(b) (1) (A). The foregoing is the one incident of actual "violence." There is much testimony about many incidents which, in the opinion of the Trial Examiner, are so trivial as to require no extensive review here. For example, in his brief General Counsel cites, as a "standard weapon in Local 777's arsenal," the "surveillance" of a DUOC meeting on May 13 by a photographer of the Illinois Teamsters News, whom he claims to have been an agent of Glimco. Whether or not an agent, as claimed, it appears that the meeting itself had been widely adver- tised as a general, mass meeting for Local 777 members, and the Trial Examiner can discern no reason to find that the presence of a news photographer at an open meeting should be considered "coercion." Again, General Counsel claims as an unfair labor practice the conduct of Colling, admittedly an agent of Local 777, in following Abata and his police bodyguard around the city streets in a white Cadillac. Just what the materiality is of the color, or make, of the car, the Trial Examiner cannot perceive-nor the license number, which General Counsel carefully cites. Policemen were called to testify as to the acts of following, but it is clear that no arrests were made. Abata, in relating the incidents, appeared to the Trial Examiner to be testifying with due modesty about matters which had brought public attention to himself, and which had been neither coercive nor frightening to one who, for some 13 years, had been head of the same union. In any event, the Trial Examiner is not aware that the Board has ever found that the following of one labor organization representative by another-neither of whom is an "employee"-is a violation of the Act " In his brief, the General Counsel has summed the incidents which he contends were "spoken threats, whether of physical violence or economic harm." All but three, which related to remarks made to Abata or Hicks," are quoted, the first named individual being a Local 777 agent, and the second being an employee: (a) Vece to Gans-"Tomorrow might be too late. . . . If you don't [sign] you will suffer the consequences. (b) Glimco to Yurkonis-"I have got ways of taking care of guys like you." (c) Kofkin to Cecil Clark-"Lay off the union business or your ulcer will be bothering you." (d) Connors to Everett Clark-"Don't be pushing those petitions." (e) Colling to Everett Clark-"Why don't you smarten up..... If you don't go down and see Glimco, I am going to smear you up." (f) Colling to Everett Clark-"We are going to get you one way or another. I will break your goddam legs." (g) Echoles to Jakubowski-"Sign or I will put you on the pan before Glimco." As to (a): Even if Gans were to be believed on this incident, Vece not having been called as a witness, the remark is, at most, ambiguous. tAs noted heretofore, Gans did sign for another fellow employee. Also as previously noted the unex- plained "consequences" referred to by Vece may well have been charges of dual unionism, which in fact were brought later when it appeared that Gans had signed certain anti-Local 777 papers. The Trial Examiner finds that the remark, even if made, was not coercive within the meaning of the Act. (b) This remark, also, is not sufficiently explicit to warrant a finding of an unfair labor practice. " In his brief General Counsel urges that both Abata and Hicks, another DUOC organizer not employed by either Respondent Company, were "employees" within the meaning of the Act because they had been discriminatorily denied employment It has been specifically found , above, that Abata was not so discriminated against, and no issue was raised in the complaint to the effect that either Respondent Employer had violated the Act by discriminating against Hicks. '3 As noted in the footnote above, while Abata and Hicks were organizers for DUOC, neither was an employee within the meaning of the Act, and the protective provisions of Section 8(b) (1) (A) do not extend beyond such employees. 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Innocuous and deserving of no further comment. (d) No threat of any nature (g) Just what Echoles implied, by threatening to put Jakubowski on the pan be- fore Glimco, the Trial Examiner cannot determine As to (e) and (f), however, Coiling was not called as a witness Clark's testi- mony is undisputed and, while his account of the black eye episode is not fully credited, the Trial Examiner finds that these two threats of physical violence were made by Coiling, an agent of Local 777, and concludes that they constituted a violation of Section 8(b) (1) (A) Unlawful threats by one agent, against one employee among several thousand seasoned Chicago cabdrivers, in a period of a year, in the opinion of the Trial Examiner do not constitute a "course of conduct" sufficient to warrant a cease and desist order. E Refusal to pay bill issue The Supplemental complaint (in Case No. 13-CB-844) claims that the Respond- ent Local 777, in violation of Section 8(b)(1) (A) of the Act, coerced employee Everett Clark in November 1959, because the health and welfare plan, covering employees apparently in accordance with contract provisions, failed to pay his wife's hospital bill. It would appear to the Trial Examiner fundamental to the merit of this allegation that General Counsel at least establish a prima facie case that a bill was owed. This burden was not met by him, in the opinion of the Trial Examiner. On the other hand, an official of the underwriting insurance company testified, in effect, that full payment under the policies had been paid, and no evidence was offered to rebut his testimony. In his brief, General Counsel concedes "that this [exhaustion of bene- fits under the contract] may well be a valid defense to a suit brought by Clark under the policies in a proper forum." Facts, so far as the Trial Examiner is aware, do not alter their nature in another forum. There being no competent proof that the plan owed Clark any money, the Trial Examiner concludes and finds that this allegation of the complaint is not sustained. F. Interference, restraint, and coercion issue involving the Respondent Employers The record contains a mass of testimony, much of it undisputed, which in the opinion of the Trial Examiner establishes beyond question that both Respondent Employers, through conduct of their supervisors and management representatives, unlawfully aided and assisted Local 777 in its efforts to curb the organizational drive of DUOC, and thus interfered with employees' rights guaranteed by the Act This conduct consisted of: (1) Permitting Local 777 representatives to solicit signatures to its "loyalty" petitions within and on their garage premises at various locations, while refusing to allow DUOC representatives the same privilege; and (2) serving as conduits and messengers for Local 777 in ordering and directing drivers to ap- pear at union headquarters. In their brief, counsel for the Respondent tacitly admit the nature and extent of (1)-the disparity of treatment: Respondent union was seeking to prove to the Board that the DUOC petition for an election lacked the requisite support among the employers The time was definitely limited; both companies stood by during this one week for this one petition, for this one purpose At the end of that week there were no fur- ther union petitions sought nor any union activity permitted in the garages, nor was there any such activity before they started that week Since this loyalty petition was in the nature of gathering evidence to be submitted to the Board, and since the time was definitely limited, the companies did not wish to be in the position of preventing the respondent union from gathering evidence in this limited undertaking. Justification for their failure to accord equal opportunity to DUOC in "gathering evidence" counsel would apparently have found in the existing contracts, which recognize the Respondent Local 777 as the exclusive bargaining agent. Since the contracts themselves, as noted heretofore, are tainted with illegality, any defense relying upon them must fall. As to (2), the Respondent Employers plead that their garage managers and super- visors were merely "passing on" telephone messages from union headquarters. The preponderance of credible evidence shows that company representatives went far beyond mere "passing on" of messages received Drivers were told and directed to appear at the union office, at certain times, and in some cases were warned that un- CHECKER TAXI COMPANY, INC. 647 less they complied they might not be able to work. Thus employees were reasonably led to believe that.to retain their jobs they must obey. This conduct was plainly coercive, and constituted unlawful assistance to Local 777.14 G. Summary of unlawful conduct In summary, the Trial Examiner concludes and finds that the Respondent Em- ployers have rendered unlawful assistance to the Respondent Union by: (1) Main- taining and enforcing closed-shop (or noncompliance) contracts until January 1959, and thereafter entering into, maintaining, and enforcing union-shop contracts without providing employees an opportunity freely to choose their bargaining representa- tives; (2) denying DUOC privileges accorded the Respondent Union, as described above; and (3) directing their employees to appear at the Respondent Union head- quarters. It is further concluded and found that by maintenance and enforcement of the above-described contracts, and checking off dues and fees, the Respondent Em- ployers have unlawfully discriminated against employees in regard to the hire, tenure, and other conditions of their employment. By all such conduct the Re- spondent Employers have interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. It is concluded and found that the Respondent Checker discriminatorily discharged employee Louis Linzer and that the Respondent Union caused the Respondent Checker thus to violate Section 8(a) (3) of the Act. It is concluded and found that by being parties to the above-described unlawful' contracts, and participating in their maintenance and enforcement, the Respondent Union has caused the Respondent Employers to violate Section 8 (a) (3) of the Act. By such conduct, and by causing the Respondent Checker to discriminate against employee Louis Linzer, the Respondent Union has violated Section 8(b)(2) of the Act. By all such conduct the Respondent Union has restrained and coerced em- ployees in the exercise of rights guaranteed by the Act. It is further concluded and found that the preponderance of credible evidence fails to sustain other allegations of unfair labor practices-except as to certain re- marks made by Colling to Clark, set out in section III, D, above. Because, as there found, the remarks, although clearly threatening, did not constitute a "course of conduct," and in effect were isolated, the Trial Examiner is of the opinion that to recommend a specific cease and desist order as to this incident would not effectu- ate the policies of the Act. (See Ready Mixed Concrete Company, et al., 117 NLRB 1266.) IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Respondent Employers, and each of them, as 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. V. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices, the Trial Examiner will recommend that they cease and desist therefrom and take affirmative action necessary to effectuate the policies of the Act. It will be recommended that the Respondent Checker make employee Linzer whole for any loss of pay he may have suffered by reason of the unlawful discrim- ination against him. It will be recommended that the Respondents cease and desist from giving effect to all current collective-bargaining contracts between them, or to any extension, re- newal, or modification thereof, and jointly and severally reimburse employees and former employees for any dues, fees, assessments, or other moneys that since the effective 10(b) period for each Respondent have been unlawfully exacted from them as a condition of obtaining or retaining employment with the Respondent Employers. It will also be recommended that the Respondent Employers withdraw and withhold all recognition from the Respondent Union as the representative of any of their employees for the purposes of dealing with them concerning grievances, labor dis- putes, wages, gates of pay, hours of employment, or other conditions of employment, 14 Union bulletin boards were placed in each garage Had the employer representatives wished to maintain a neutral position, telephone messages could easily have been posted upon them. 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unless and until the said Respondent Union shall have demonstrated its exclusive representative status pursuant to a Board -conducted election among said employees. It will be recommended that the Respondents cease and desist from in any other manner restraining or coercing employees in the exercise of the right to self- organization, to form labor organizations, to join or assist DUOC or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8(a)(3) of the Act as amended. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local 777, Taxicab Drivers, Maintenance and Garage Helpers Union, Inter- national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, and Local 777, Democratic Union Organizing Committee, are labor or- ganizations within the meaning of Section 2(5) of the Act. 2. By contributing assistance and support to Local 777, Taxicab Drivers, Main- tenance and Garage Helpers Union, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, the Respondent Employers have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a) (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment and other terms and conditions of employment of their employees, thereby encouraging mem- bership in a labor organization, the Respondent Employers have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a)(3) of the Act. 4. By interfering with , restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent Employers have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By causing and attempting to cause the Respondent Employers to discriminate against employees within the meaning of Section 8(a) (3) of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 6. By restraining and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent Union has engaged in and in engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 7. The unfair labor practices found herein are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] General Engineering, Inc. and Harvey Aluminum (Incorporated) and United Steelworkers of America , AFL-CIO General Engineering, Inc. and Harvey Aluminum (Incorporated) and Aluminum Workers Council of The Dalles, Oregon .' Cases Nos. 36-CA-953, 36-CA-954, and 36-RC-1376. May 19, 1961 DECISION AND ORDER On March 29, 1960, Trial Examiner Herman Marx issued his Inter- mediate Report in the above entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and 'Herein called the Council. 131 NLRB No. 87.