Dugas Express

DUGAS EXPRESS 613 Fernand Doyon d/b/a Dugas Express and Truck Drivers, Ware- housemen, and Helpers Union Local No. 340, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 1-CA-3511. January 29, 1962 DECISION AND ORDER On November 17,1961, Trial Examiner Stephen S. Bean issued his Intermediate Report on the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in the unfair labor practices alleged in the complaint and recommending that he cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief. The General Counsel filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent Fernand Doyon d/b/a Dugas Express, Lewiston, Maine, his agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Truck Drivers, Warehousemen, and Helpers Union Local No. 340, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging employees or by dis- criminating in regard to hire and tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of 135 NLRB No. 65. 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 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) Offer to Arthur Belanger immediate and full reinstatement to his former or substantially equivalent position and make him whole for any loss of earnings suffered in the manner set forth herein in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to or convenient for a computation of the amount of backpay due under the terms of this Order. (c) Post at his office and garage in Lewiston, Maine, copies of the notice attached hereto marked "Appendix." 1 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, and be maintained for a period of 60 consecutive days there- after, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director for the First Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IIn 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 " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, I hereby notify my employees that: I WILL NOT by discharging an employee, or in any other manner interfere with, restrain, or coerce my employees in the exercise of their right to self-organization, to form, join, or assist Truck Drivers, Warehousemen, and Helpers Union Local No. 340, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bar- DUGAS EXPRESS 615 gain collectively through representatives of their own choosing, to engage in concerted activities for the purposes 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 or- ganization as a condition of employment, as authorized in Sec- tion 8 ( a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. I WILL offer Arthur Belanger immediate and full reinstatement to his former or substantially equivalent position , without preju- dice to his seniority or other rights and privileges previously en- joyed, and make him whole for any loss of pay suffered as a result of the discrimination against him. FERNAND DOYON D/B/A DUGAS EXPRESS, Employer. Dated---------------- By------------------------------------- (FERNAND DOYON) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office (24 School Street, Boston, Massachusetts ; Telephone Number Lafayette 3-8100 ) if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This complaint was heard in Lewiston, Maine, on September 27 and 28, 1961, before 'Stephen S. Bean, the duly designated Trial Examiner, upon allegations that Fernand Doyon d/b/a Dugas Express, herein called the Respondent or Doyon, had violated Section 8(a) (3) and (1) of the National Labor Relations Act by discharg- ing and failing to reinstate Arthur Belanger because of his union activity. All parties were represented by counsel and were given full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence. Right was reserved to the parties to file briefs. The General Counsel's was received by me on October 30, 1961; Respondent's on November 1. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS ; THE LABOR ORGANIZATION INVOLVED It is alleged, admitted, and found that Respondent is, and has been at all material times, engaged in commerce within the meaning of the Act. It is agreed and accord- ingly found that Truck Drivers , Warehousemen, and Helpers Union Local No. 340, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, herein called the Union , is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES This is another run of the mill case, important of course to the individuals involved, but adding naught to the body of the law which has been construed, as it should be, with regard to the public interest in the multitude of complied with Intermediate Reports and Decisions issued during more than 26 years. The essential circum- 616 ^ DECISIONS OF NATIONAL LABOR RELATIONS BOARD stances, which I find are supported by substantial evidence contained in the welter of fact and fiction constituting the record considered as a whole, are as follows: The Nature of Respondent's Business Doyon conducts trucking business from a main terminal in Lewiston under a com- mon carrier's permit covering Lewiston and Portland, Maine, and the intermediate points of Danville, New Gloucester, and West Portland, Maine. At the time of the hearing he had six employees, including Working Foreman Lucien Rouleau in charge of his subterminal in Portland. His equipment consisted of seven or eight trucks, the years of manufacture of which were from 1950 to 1956 all of which, with the exception of one 1952 vehicle, were purchased secondhand. The history of the par- ticular 1950 truck involved in this case will be subsequently related. Respondent's Relationship With the Union All of Doyon's employees were members of the Union with which he had been under contract for some 16 years, as member of Interstate Carriers' Group, until April 11, 1961, when he withdrew principally because of an unwillingness to sign the Group agreement running for 6 years with a wage reopening clause of the expira- tion of the first 3 years. Subsequently the Union sent him a contract which he re- frained from signing. About 3 weeks later, Albert H. Page, secretary,treasurer of the Union, visited Doyon and asked him if he had signed the contract. Doyon tes- tified, "I told him I didn't sign these contracts until we could negotiate and come into satisfactory with both parties." Respondent's employees remained paying members of the Union at least until June 21, 1961, when Doyon, who had previously advanced their monthly dues against their next 5 days' earnings paid at the end of the week, told his employees they should pay direct to the Union if they wished to remain members and discontinued the practice. The Work and Record of Arthur Belanger Belanger, 43 years of age, had worked 21 years as a truckdriver for Respondent up until the time he was discharged on June 26, 1961. Respondent testified he was one of the best drivers he ever had in his employment until the last year and a half, not a bad driver for 16 months thereafter but not a good driver for the 2 or 3 months preceding June 26. For a number of years before his discharge, Belanger's work routine was substan- tially as follows. He would report at the Lewiston terminal before 7 a in. Then, after occasionally performing some incidental work around the garage or trucks and taking care of equipment, he drove a ton and half truck delivering the bulk of "jalopy freight" in different parts of Lewiston. He would then return to the home terminal to see if there was any pickup, hook up to a trailer truck, and start to Port- land making varying numbers of deliveries or pickups en route. The time of his arrival at the Portland terminal would depend upon the number of calls needed to be made in Lewiston before his departure and on the way to Portland Thereafter upon arrival at the Portland terminal, Belanger would help on, and give a hand in loading, trucks. There is no indication at what hour or for what length of time he was allowed for a lunch stop. In the afternoon he took care of the bigger calls at numerous Portland warehouses and finally loaded up whatever freight there was to be trans- ported back to Lewiston where he would arrive to finish his day's work at 6:30 p.m., earlier or later, depending on conditions. Belanger's Discharge and the Positions of the Parties On June 26, 1961, about 6:30 p.m., upon his return from Portland, Doyon said to Belanger, "Well, you and I can't get along together anymore," "We might as well call it off," "You have been talking too much," "You remember two years ago you said I couldn't fire a man without a good reason," and handed Belanger his paycheck. Belanger pointed out his 21 years of employment and asked if the reason for his being discharged was his having said that Doyon could not fire a man without a good reason. Doyon replied that he was not there to discuss the subject that night. The General Counsel asserts that the discharge was due to Belanger's union activi- ties; Respondent answers it was due to Belanger's failure properly to operate motor vehicle equipment and pursuing his own private commercial business during Re- spondent's time and using its equipment, or, as Doyon testified, "Well, I discharged Mr. Belanger-my attitude is that the reason I discharged Mr. Belanger is because I have told him so many times not to lose any time with my trailer which he was DUGAS EXPRESS 617 [s]hopping on the company time, which he has lost a lot of time which has been, proved to my satisfact[ion], and by not driving that truck properly in the last 3 or 4 weeks-we will say 5 weeks." Discussion In analyzing the contentions of the parties it is appropriate to discuss (1) the extent of Belanger's union activities and Respondent's knowledge thereof, (2) the claim of improper operation, and (3) the assertion of shopping and using a truck on Re- spondent's time. The subsidiary findings under (1) are as follows : In August 1960, some 5 months after Respondent claims Belanger had changed from being "one of the best drivers" to "not a bad driver" and 7 months before he changed from being "not a bad driver" to "not a good driver," Belanger brought to the office a letter addressed to him by Secretary-Treasurer Page of the Union. This communication referred to a previous conversation between Belanger and Page regarding Respondent's withholding pay from employees for insurance benefit pay- ments and stated Respondent had overcharged them at the rate of $2.65 per month. As a result of Belanger having brought up the matter with the Union, Respondent refunded his employees the overpayment which had been charged against them for a period of more than 5 months. On the evening of June 21, 1961, 5 days before he was discharged, Doyon took Belanger's union book from the office safe and handed it to Belanger saying he was no longer union, he could probably stand it the first 3 years but did not know (if he could) thereafter, he might as well take his stand, and in the meantime Belanger could look for something else. The following day Belanger paid his union dues direct to Page and reported that Doyon had told him to look for something else. Page replied that he would wait to see what Doyon had to say. Belanger was corroborated in stating that there was no shop steward handling the employees' affairs and testified credibly that he was the only union spokesman among them although not its agent, and that union correspondence was sent to him as well as to the Portland office, where Rouleau, who was the oldest man, would disregard it. Belanger recalled that in addition to taking up with the Union the matter of the over-- charge for insurance premiums, he had also, in connection with Respondent having granted only 1 week's vacation the previous year, "finally got the Union and the Union got it (3 weeks vacation) for us." Belanger's other contacts with the Union as described by Page, consisted of his dealing with him and Hazen McAllister, another of Respondent's employees, when he wanted to find out what was happening at Dugas Express and Belanger's calling him on different items that were bothering him.. Belanger had talked with Doyon about the Union from time to time during their social contacts but never discussed the contract as such. Sometime in June 1961, Foreman Rouleau told McAllister that the goddam union was no good and (McAl- lister) would have to get through anyway. McAllister was discharged on June 17, 1961. Belanger talked "many times" with other employees about the Union and on June 23, 3 days before he was discharged, discussed with, as well as Rouleau, "all different guys" the subject of whether they were "going to keep being in the Union." On the above subsidiary findings, I conclude that Belanger engaged in union activities of which Respondent was aware at the time of his discharge. The subsidiary findings under (2) are as follows: In the fall of 1960 Belanger was assigned to drive a 1950 White truck. He almost constantly experienced serious trouble with its mechanism until his discharge the- following June 26. This truck had been laid up and not been run for the 2 years prior to its purchase in September 1960. It was rusty and had defective shifting links. and was not shifting properly. Parts were purchased and one end of the transmission linkage was repaired to no avail. Another linkage part was purchased but again the transmission did not shift properly. Doyon and his mechanic, Cyr, then spent a half day further adjusting the linkage. Even then there was continuous trouble with the transmission. In the latter part of November 1960, during a ride home from Port- land, the transmission lever had to be held to keep the transmission itself in low gear. After this, the transmission would not stay in gear and Belanger so informed Doyon. Finally, the transmission locked and broke down completely about the middle of May 1961. It was then replaced with a used transmission which had been purchased for $10. After the $10 transmission (the prevailing cost of a rebuilt transmission is $209.50) was installed, Belanger told Doyon that it too would not stay in second' gear. Cyr attempted to cure the trouble by adjusting the shifting link. Doyon told Belanger at that time to "Take it easy. Try it a couple of days. We will try to, take that transmission out and find you a new one." The $10 transmission was re- moved on June 18 or 19, or about a week before Belanger was discharged. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Then a third transmission which was installed in Belanger's truck came from a 1948 White truck which had gone 120,000 miles before breaking down and there- after left out doors for a year and a half or two. In order to install this transmission it became necessary to make a change in the linkage. It had been built to shift from the side and it was necessary to change it over in order that it might shift from the top instead in Belanger's truck. Belanger drove the truck with the third, 120,000- mile, transmission, for about 7 working days before he was fired.' This third trans- mission had given constant clutching trouble to another driver long before the 1948 truck from which it was removed had been abandoned. After Belanger's discharge, it was taken out of the truck and according to the testimony presented by Respondent was found to be in exceedingly worn condition.2 The General Counsel argues that: Doyon admits that various troubles with the transmission linkage were not caused by Belanger but attempts to differentiate be- tween those troubles which he said occurred in fall of 1960, and those which occurred in May and June 1961; the important factor to note with regard to the difference in the Belanger and Doyon versions of what happened is that Belanger describes his troubles with the original transmission as continuous, finally resulting in the complete breakdown of the transmission in May 1961, this is altogether a more reasonable and believable position; hence it is contended that in admitting that the original transmission troubles were not Belanger's fault, Doyon admitted that the final breakdown of this originally faulty third transmission was also not Belanger's fault; Respondent admitted that another driver had driven the truck for quite some time after Belanger had, the gear in question was worn down over a long period of time; so much steel was missing from the gear that it must be assumed that Respond- ent's witnesses would have been able to testify that the oil was heavily contaminated with the worn off bits of steel, there was no such testimony; there was no testimony that the oil which must have been contaminated was changed when the transmission was supposedly inspected shortly before Belanger was discharged; one must therefore, assume that the wear on the gear did not occur during the 7 or so working days Belanger was driving; the third transmission was installed in Belanger's truck , with the vain hope that since the transmission did not cost anything, it might be possible to get some wear out of it before spending money necessary to purchase a rebuilt trans- mission; it is completely unreasonable to believe that Belanger, an experienced truck- driver, could have damaged the gears so extensively in the extremely short period in which he drove with the third transmission; on this point alone, the pretextuous nature of this "reason" for discharge is apparent; Doyon, himself, explains the situation by saying that Belanger did not drive badly in the last 2 weeks; if Belanger was not driving badly in the last 2 weeks, exactly when was he supposed to have ground down the gear which Respondent attempted to introduce for the purpose of showing how poor a driver Belanger was? Respondent argues that: Belanger had been warned about improper driving after receiving complaints about the transmission and after that, he ruined another trans- mission ; for the year and a half preceding his discharge, he had not been a good driver; the early part of 1961 he refused to drive a company vehicle after a heavy snowstorm, he was told if he felt that way he was not needed and to go home, how- ever, he was allowed to continue working; the Company's secretary and office employee testified that sometime during November or December of 1960 Belanger had been reprimanded for failing to take care of his equipment; during the first part of June 1961, Belanger was reprimanded for not driving the truck properly and accused of ruining transmissions; the record is full of evidence of insubordination, 1 Belanger operated three different trucks during the period s Respondent offered for identification as an exhibit what appears to be a gasoline motor transmission gear worn down in front. There was testimony that it was a second gear from a truck that had been removed by a Portland transmission exchange firm sometime after Tune 26, 1961, and placed in an upper story of its building and later pressed off and given to Doyon's son shortly before the hearing in this case It was urged that this exhibit for identification was the gear from the 1948 White truck placed in the 1950 truck that Belanger had driven for a short while prior to June 26 A witness from the exchange stated that as far as he knew just by looking it was the exact gear he had removed Since in my opinion the evidence did not sufficiently relate the offered exhibit to any particular or specific gear which had been a part of a vehicle operated by Belanger, it was rejected However, I informed the parties that it would be taken as a "chalk" In view of the evidence that it looked like one that was removed from the truck Belanger had driven The chalk, too bulky for convenient attachment to the Board's files, will be retained in my possession for a period of 6 months following the issuance of this report, in the event that any authorized person or persons should desire to inspect it DUGAS EXPRESS 619 inefficiency, dishonesty, and disloyalty; and, the precipitating events which finally led up to his discharge were the continued, and possibly, willful mishandling and destruction of the Employer's automotive equipment. On June 26, 1961, Doyon did not attribute the discharge to Belanger having im- properly driven a truck. It is apparent that the difficulties experienced in its opera- tion were inherent in the vehicle itself rather than due to any mishandling by its operator. Respondent's claim that the discharge was occasioned by its alleged dis- covery that a gear taken from the truck after Belanger had last operated it and had been discharged, clearly is spurious since obviously the discharge would not have been due to a cause not known to exist at the time it was made. On the above subsidiary findings in conjunction with those arrived at under the first to fourth headings of this section II, I conclude that the General Counsel estab- lished a prima facie case of a discriminatory discharge for engagement in union activities which was not rebutted by sufficient substantial evidence offered by Re- spondent to support its contention that the discharge was for nondiscriminatory cause. The subsidiary findings under (3), are as follows: For some 15 years before June 1961, Belanger had done some odd jobs working on transformers and radios in a shop at his home. In 1959 after taking a corre- spondence course he received a "diploma mill" "Repairman Certificate." There- after, with the occasional assistance of his son, he continued to repair and service radios and television sets on a small scale, with full knowledge of his employer, during evenings, weekends, holidays, and vacations under the name of "Lou's T.V." Among his customers were Doyon, himself, and Foreman Rouleau as well as fellow ,employees. He established credit at Radio Supply Company and Commercial Dis- tributors, business concerns in the Back Bay section of Portland, from whom he made purchases for, among other persons, both Doyon and Rouleau. The latter made personal purchases of such articles as a stove, for example, at J. E. Gould, and other goods at Standard Electric Co., The Enterprise Store, and additional establish- ments, all of which stores he visited and picked up merchandise by use of one of Respondent's trucks. McAllister purchased tires for Rouleau at Noah's, liquor for him at Valley Street Liquor Store, and tubes for him at R.C.A. Victor Company, using one of Respondent's trucks for the purpose. Back Bay is a commercial district, where Belanger's duties brought him not only to such places doing business in the section as Radio Supply Company and Commercial Distributors, but also to such stores in the same area as those conducted by Osborne Motor Sales Co., Westing- house Company, General Electric Company, Eastern Beauty. International Har- vester Co., and Armour and Company. As a usual practice, when calls were made at Commercial Distributors, Belander would avail himself of the free use of that Company's telephone to call the Portland terminal for the purpose of determining what other orders for pickups of merchandise in the vicinity might have come in since his departure therefrom He occasionally telephoned the home terminal at Lewiston from the same office. At times he would be told to wait at Commercial Distributors for 20 minutes or so and then call the company office again. During the final 6 months of Belanger's employment he made approximately three purchases at a cost averaging $7 42 every 2 weeks at Commercial Distributors and one pur- chase at a cost averaging $23.42 every 11/2 weeks at Radio Supply Co.3 The General Counsel argues that: Doyon knew about Belanger's shopping on company time 6 months before the discharge, that he personally observed him doing so prior to April 3, 1961; although Doyon testified he warned Belanger, which Belanger denied, Doyon stated to the Board agent that although he had been watching Belanger he did not want him to know about it; Belanger's duties required him to go to the stores involved; despite a clause in the contract with the Union which had ex- pired April 11, 1961, providing for notifying the Union respecting employees' trans- gressions and his notification concerning the shortcomings of another employee other than Belanger, Doyon gave the Union no notice concerning Belanger's conduct be- 3 There is considerable indication that at least a few of these purchases were made on nonworking days and that several of them were made during what might normally be considered a midday meal eating respite as well as testimony that some of the trans- actions required no more than 3 to 5 minutes time. I do not consider the state of the record warrants a specific finding in these respects However, it is plain that, apart from some slight testimony that Rouleau may one time, or possibly more than once, have tele- phoned Lewiston the latter part of the morning to inquire what time he had left for Portland, there is no intimation that Belanger had ever failed to make any of the pickups or deliveries or to perform the work required of him It is a significant fact that when Doyon discharged Belanger, the former in no way suggested that a reason was Belanger's using Respondent's time and trucks on his private business. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause it was not important enough to discuss with the Union, thus making it now un- likely that Belanger's shopping was sufficiently serious to merit the discharge of a long-term employee ; and, Doyon's explanation to Belanger at the time of the dis- charge that he had been talking too much was in reference to Belanger talking union to other employees about whether they were going to keep up payment of their dues even though Doyon was no longer accepting the Union. Respondent argues that : Belanger made many purchases during working hours; he was accused of losing time with the Company 's equipment, though not on the day he was discharged, although he denied it; prior to his dismissal Belanger had become very independent and his attitude toward his work had changed because of his TV shop; Foreman Rouleau had found him at Commercials Distributors when not on company business; Belanger refused to do his work properly and had once been laid off for insubordination but allowed to return to work; and , at the time of the discharge, Doyon did not attribute his action to Belanger having spent time and using the truck on his own business. On the above subsidiary findings in conjunction with those made under the second to fourth headings of this section II, I conclude that the General Counsel made out a prima facie case of a discriminatory discharge for engagement in union activities which has not been countervailed by evidence offered by Respondent seeking to show a discharge for nondiscriminatory cause. Few truths are self-evident . They were but vaguely discernible here. Neverthe- less, born of some experience perhaps, I carried from the rather unenlightening and quite dreary performance upstairs in a corner of the Lewiston Post Office Building a glimmering comprehension of a man's true motives lurking behind his words. I neither accept the General Counsel 's contentions as without flaw nor denigrate Respondent's arguments as bereft of respectability . But on balance and in final conclusion , I find and rule that Respondent has contravened Section 8(a)(3) of the Act by his discharge of Arthur Belanger and failure to reinstate him, thereby engag- ing in discrimination in regard to his tenure of employment in violation of said section. I further conclude, find, and rule that by said conduct Respondent inter- fered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in an unfair labor practice within the meaning of Section 8(a)( I) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with the operations of Respondent described in section I, above, have a close, inti- mate, 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. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices it will be ordered that he cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has discriminated in regard to the tenure of employment of Arthur Belanger, it will be recommended that he offer to Belanger immediate and full reinstatement to his former position , without prejudice to seniority and other rights and privileges previously enjoyed , and make him whole for any loss of earnings sustained by reason of the discharge on May 2, 1960, by payment to him of a sum of money equal to the amount he would have earned in Respondent 's employ from that date to the date of offer of reinstatement , less his net earnings during that period. Backpay shall be computed in accordance with the Board's Woolworth formula? 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. Truck Drivers, Warehousemen, and Helpers Union Local No. 340, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2 ( 5) of the Act 2. By discriminating in regard to the tenure of employment of Arthur Belanger, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(3) of the Act. A F. W. Woolworth Company, 90 NLRB 289. SHEIDOW BRONZE CORPORATION 621 3. By the discharge of Belanger, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Sheidow Bronze Corporation and Local 84, International Mould- ers & Foundry Workers, AFL-CIO. Case No. 2-CA-7841. January 29, 1962 DECISION AND ORDER On October 18, 1961, Trial Examiner A. Norman Somers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief,' and the entire record in this case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner. ORDER The Board adopts the Recommended Order of the Trial Examiner with the modification that paragraph 2 (d) read : "Notify the Regional Director for the Second Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith." 1 The Employers' request for oral argument is denied as the record , including the excep- tions and brief, adequately presents the issues and the positions of the parties. 2 In adopting the Trial Examiner's finding that the Respondent had knowledge of em- ployee Joseph Brandell's union activities before it discharged him in violation of Section 8(a) (3), Member Rodgers does not rely upon the smallness of Respondent 's foundry. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case was heard before A. Norman Somers, the duly designated Trial Ex- aminer, in New York City on August 30, 1961, on complaint of the General 135 NLRB No. 66.