Cushman Motor Delivery Co.

146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 587, AFL-CIO, or any other labor organization. WE WILL offer to the following employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges: Otto L. Mitchell Jessie L. Mobley George L. Manning Victor Norman Potts, Jr. Leroy R. Miller Robert L. Linscomb Charlie Lee Allen David L. Stanton Earl Kimball, Jr. WE WILL make whole the above employees and Enoch James Britt and Tom Gary for any loss of pay suffered as a result of our discrimination against them. WE WILL rescind all unilateral changes made on and after March 9, 1962, in the hours and days of work and in other terms and conditions of employ- ment of our employees. WE WILL, upon request, bargain collectively with the above-named labor or- ganization as the exclusive bargaining representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist the above union, or any other labor organization, to bar- gain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or 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 a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended. All our employees are free to become, remain, or refrain from becoming or re- maining members of International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 587, AFL-CIO, or of any other labor or- ganization, except to the extent that this right may be affected by an agreement re- quiring membership in a labor organization as a condition of employment, as author- ized in Section 8(a) (3) of the Act, as amended. OIL CITY BRASS WORKS, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE -We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 6617 Fed- eral Office Building, 515 Rusk Avenue, Houston 2, Texas, Telephone No. Capitol 8-0611, Extension 296, if they have any question concerning this notice or compli- ance with its provisions. Cushman Motor Delivery Company and Walter E. Flack Local 710, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and Walter E. Flack. Cases Nos. 13-CA-4513 and 13-CB-1140-2. March 6, 1963 DECISION AND ORDER On June 5, 1962, Trial Examiner Sidney Sherman issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent Company and the Respondent Union had engaged in and 141 NLRB No. 10. CUSHMAN MOTOR DELIVERY COMPANY 147 were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent Company and the Respondent Union filed exceptions to the Intermediate Report with supporting briefs.' 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 the case, and finds merit in the exceptions of the Respondent Company and Respondent Union. Accordingly, the Board adopts only those findings, conclusions, and recommendations of the Trial Examiner which are not inconsistent with this Decision and Order. The Trial Examiner found that the Respondent Company and the Respondent Union violated Section 8 (a) (1) and (3) and Section 8(b) (1) (A) and (2) of the Act, respectively, in connection with the discharge of Walter E. Flack. We do not agree. Flack had been employed by the Respondent Company from De- cember 1953 until December 1960, at which time he was discharged for cause. He was rehired in June 1961 at the request of his bargain- ing representative and on the promise that he would perform his work satisfactorily. On September 11, 1961, about 8:30 a.m., Flack, a truckdriver, left Respondent's premises with a load to be delivered to a glass company, but did not make the delivery. He telephoned his dispatcher that he could not make delivery and was told to return with the load. Flack returned to the Cushman office about 10 a.m., where he reported sick and took the balance of the day off. He then went to the police station to file a complaint against Peter Janopoulos, business representative for the Respondent Union.2 Flack left the police station about noon- time and went to a local hotel where he participated in television broad- casts about his argument with Janopoulos earlier that day. He fin- ished about 2 p.m., and then proceeded to make further television broadcasts on the same matter at a spot located across from the Cush- 1 In view of our decision herein, we deny Respondents ' motion to reopen the hearing to adduce newly discovered evidence. 2 Flack is a supporter of a group movement known as the Rebel Teamsters Union, which is opposed to Respondent Union. In July 1961 , Flack began activity on behalf of this group. His activity included serving as secretary -treasurer, propagandizing its aims and purposes, and distributing its literature. Janopoulos and Flack engaged in an argument when the latter reported for work on the morning of September 11. During this argument, Janopoulos threatened Flack with violence over his activities on behalf of the Rebel Teamsters Union 708-006-64-vol. 141-11 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD man terminal. The latter effort was finished about 5 p.m. Flack drove his own car during these activities. On October 11, 1961, about 1 p.m., Flack arrived at the Clairmont Transfer Company dock with a consignment and, before starting his lunch hour, proceeded to that portion of Clairmont's premises where bills of lading are posted. Flack so proceeded in order to deliver the bill for the consignment which his truck carried, and thereby have his truck unloaded in turn. While going to and from the bill rack, Flack distributed literature of the Rebel Teamsters Union to various em- ployees of Clairmont, all of whom were engaged in work. He then spent the better part of the balance of his lunch hour distributing such literature to various truckdrivers as they arrived at the Clair- mont dock. Shortly after 2 p.m., Flack was summoned to answer a telephone call from Barney Cushman, president of the Respondent Company. Cushman told Flack that lie had received telephone com- plaints about his distributing literature at the Clairmont dock and about his interference with the work of Clairmont's employees. Cushman told Flack that he did not care one way or another about the organization to which the latter belonged, but that he could not dis- tribute leaflets on Cushman's time. Flack replied that he was distrib- uting during his lunch hour, that he was not paid for this time, and that he could do whatever he pleased on his own time. Cushman, un- impressed by this answer, replied that Flack was in control of Cush- man's truck and that he would be given a warning notice because of his conduct. Flack then returned to his truck, which had not been reached for unloading. About 10 or 20 minutes later, three of the Respondent Union's organizers arrived on the scene. One of the three, Bonarigo, told Flack that he could not pass out the leaflets. Work came to a halt when Bonarigo ordered Clairmont's employees to stop work, add- ing that there was not going to be any movement of freight until Flack got off the dock. Daniel White, the office manager of the Clairmont dock, told Flack that he could not accept the freight. Thereupon, Flack called his dispatcher and told him that he could not make delivery. The dispatcher ordered Flack to take his freight to another terminal. Later that day, about 3 p.m., White telephoned Barney Cushman and asked if the freight, which had been taken away from the Clair- mont dock, could be returned for handling. When Cushman advised him that it was too late to do anything about it, White asked why Cushman allowed its driver to pass out literature and to disturb per- sonnel at other docks. On October 13, 1961, Flack arrived with a loaded truck at the dock of the Scherer Freight Company. While unloading his truck with the help of one of Scherer's employees, Flack attempted to convert this CUSHMAN MOTOR DELIVERY COMPANY 149 employee to the Rebel Teamsters' cause. The Respondent Union's steward at the Scherer dock, Smith, overheard this solicitation and di- rected Flack to desist from his Rebel Teamsters talk. A fight then occurred between Smith and Flack, and work stopped at the Scherer dock on Smith's order not to move any freight so long as Flack was there. Ultimately, Flack called his dispatcher and notified him that he could not complete the delivery at Scherer, whereupon Cushman assigned another driver to complete the delivery. Flack then returned to the Cushman terminal, where he was given a letter of discharge.' The incidents at Clairmont and Scherer were, inter alia,4 stated in the letter as reasons for the discharge. We do not find, as did the Trial Examiner, that Flack was dis- charged for engaging in protected activity and that the reasons given by the Respondent Company to Flack for his discharge were pretexts. On the contrary, we find that Flack was discharged for cause, with the Scherer incident the culminating factor. In so finding, we note that Flack had been discharged for cause in December 1960 and that he had been rehired in June 1961 at the request of his bargaining rep- resentative and on the promise that he would perform his work satis- factorily. Despite the foregoing, Flack proceeded to engage in the behavior set forth in the discharge letter. In particular, we note his activities on September 11, supra, when he claimed inability to work because of sickness and spent the rest of the day before television cameras and in other activity as described above. On October 11, Flack distributed literature, while going to and from the Clairmont rack and before starting his lunch period. Such distribution was to employees of Clairmont while they were on their worktime. The Respondent Company told Flack at this time of its concern over Flack's interference with the work of the employees of another com- pany, and that he was to receive a letter of warning regarding the whole affair. Nevertheless, on October 13, only 2 days following the Clairmont incident, and before the warning letter was completed, Flack deliberately solicited an employee of Scherer. This solicitation was on Flack's worktime, caused a work stoppage at the Scherer dock, and resulted in another failure by Flack to make delivery of assigned freight, It was, we believe, the factor which triggered the discharge. Upon the entire record, we find that Flack engaged in unprotected activity, was in fact discharged for that activity, and, therefore, was discharged for cause. In view of our finding that Flack was discharged for cause, and that Respondent Company did not violate the Act, we further find, 3 The warning notice concerning the Clairmont incident was being drafted on the morning of October 13 when Barney Cushman was told that Flack was involved in a similar incident After sending another driver to complete Flack's delivery , Barney Cushman decided to have the warning notice converted into a discharge letter. 'The other reasons were not related to activity on Flack's part which could be classi- fied as protected within the meaning of the Act. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in disagreement with the Trial Examiner, that the Respondent Union also did not violate the Act. Accordingly, we shall dismiss the complaint. [The Board dismissed the complaint.] INTERMEDIATE REPORT This proceeding was heard before Trial Examiner Sidney Sherman in Chicago, Illinois, on April 3, 4, and 5, 1962, upon the complaint of the General Counsel and answer of the Respondents. The issue litigated was whether the Respondent Com- pany violated Section 8 (a) (3) and (1) of the Act, and the Respondent Union violated Section 8(b) (2) and (1) (A) of the Act with respect to the discharge of Flack. Both Respondents and the General Counsel filed briefs after the hearing. Upon the entire record , and my observation of the witnesses , I adopt the follow- ing findings and conclusions: 1. THE BUSINESS OF CUSHMAN Cushman Motor Delivery Company, herein called Cushman or the Respond- ent Company, is an Illinois corporation with a principal place of business at Chicago, Illinois, and is engaged in the transportation business as a common carrier. Its annual revenue exceeds $4,000,000, of which more than $1,000,000 is derived from interstate hauling. I find Cushman is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED Local 710, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , hereinafter called Respondent Union or Local 710, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The issues The complaint alleges that the Respondent Company violated Section 8(a)(3) and (1) of the Act by discharging Flack because of his union or concerted activity, and that the Respondent Union violated Section 8(b)(2) and (1)(A) of the Act by causing or attempting to cause Flack's discharge because of his activities on behalf of the "Rebel Teamster Union " In their answers, the Respondents admitted the discharge of Flack but denied all pertinent allegations as to the reason for his discharge. Accordingly, the only issues framed by the pleadings were whether Flack's dis- charge was due to concerted activities, and whether the Respondent Union caused or attempted to cause his discharge because of such activities. B. The evidence Flack was first hired by Cushman, as a city driver, in 1953 and was so employed until December 1960, when he was discharged for reasons not here relevant. in June 1961, he was rehired by Cushman at the request of his bargaining agent (Chicago Truck Drivers Independent Union). In July 1961, Flack began to advocate the cause of the "Rebel Teamsters Union." Flack testified that he was at the time of the hearing secretary-treasurer of that "Union," and that William Bums was president. However, Flack admitted that the "Union" had no dues-paying members, but only "sympathizers." According to Flack, the aims of the Rebel Teamsters were to im- prove existing grievance procedures, obtain better contracts, and elect honest union officers i During the summer of 1961, Flack distributed literature on behalf of the Rebel Teamsters Union and otherwise advertised its aims to members of various Teamsters locals in Chicago, including the Chicago Truck Drivers Independent Union, 1 According to Flack, the Rebel Teamsters Union's constitution required the expulsion of any union officer who Invoked the fifth amendment in the Federal Constitution CUSHMA__\' MOTOR DELIVERY COMPANY 151 previously mentioned, the Respondent Union, and another local of the Teamsters Union in the Chicago area .2 On September 11, 1961 ,3 Janopoulos, a business agent of Respondent Union, approached Flack at the premises of the Respondent Company, directed some obscene epithets at him and at Burns (his fellow-officer in the Rebel Teamsters Union), forbade Flack to pass out any literature or "talk against" the Respondent Union, and threatened "to break [Flack] in half" and that "any 710 dock I went on he was going to have me run off the street a couple of blocks and pour kerosene" on a sensitive part of Flack's person. Janopoulos concluded by inviting Flack to "step out in the street" and have a "real tussle." Flack declined the invitation. The foregoing testimony was not contradicted by Janopoulos, although he was present throughout the hearing," and I credit that testimony. The Clairmont Incident About 1 p in. on October 11, Flack arrived with a loaded trailer at the dock of Clairmont Transfer Company. He parked his vehicle at the dock and, while awaiting his turn to be unloaded, he decided to take the next hour off. Under his union contract he was entitled to take 1 hour for lunch at any time, within his discretion, between 11 a.m. and 2 p in. However, instead of eating lunch, he proceeded to distribute Rebel Teamster literature to the dockmen, who were members of the Respondent Union, and to truckdrivers as they arrived on the scene .5 This continued for about 40 minutes and at the end of this period Flack returned to his trailer and sat there until shortly after 2 p.m.,6 when he was summoned to answer a telephone call from Barney Cushman, president of the Respondent Company. Cushman's call was prompted by telephoned complaints received by him a few minutes before from two drivers to the effect that Flac'c was distributing literature at the Clairmont dock and interfering with the drivers' work, and urging Cushman to remove Flack fror'i the scene. In their telephone conversation, Cushman told Flack about these complaints, and that Cushman did not care about Flack's union activity but he was not to distribute literature on company time. Flack retorted that no company time was involved in his activity as it occurred during Flack's "lunch hour," during which he could do as he pleased. Cushman answered that he would give Flack a "warning notice." 7 Flack then returned to his trailer, which had not yet been reached for unloading. About 10 or 20 minutes later, three representatives of the Respondent Union arrived on the scene-namely, Middleton, Eanarigo, and DeWan. All three were organizers, and DeWan was, in addition, recording-secretary of the Respondent Union. There is conflicting testimony as to the ensuing events. According to Flack, Bonarigo ordered all the dockhands to stop work, declaring, "There isn't one piece of freight ... going to be moved until this son of a bitch gets off the dock," and the dockmen complied Local 705 The latter is not to be confused with the Chicago Truck Drivers Inde- pendent Union, which is sometimes referred to in the record as Local 705 , a designation which it recently abandoned. 1 Although Flack at first gave this date as September 27, he later indicated that he might have been mistaken . Other evidence in the record is persuasive that September 11 is the correct date. Unless otherwise indicated , all events hereinafter related occurred in 1961 'He testified about other matters. 5 This literature consisted of handbills announcing the aims of the "Rebel Teamsters Union," criticizing various officials of Teamsters locals , and appealing to members of such locals to sign an authorization form in favor of the Rebel Teamsters Union as a basis for a Board election. 6 According to Flack the exact time was 2 :10 ; according to Barney Cushman it was 2:20 It is not necessary to resolve this conflict 7 The foregoing findings as to the Flack -Cushman conversation are based on the testi- mony of the two participants, which is in substantial agreement, except that Cushman testified that Flack told him "I am on my lunch hour" [emphashis added], thereby giving Cushman the impression that Flack was still engaged in distributing literature at the time of the conversation , although Flack's lunch hour could not have extended, under his union contract , beyond 2 pro. Also, according to Cushman , the report he received from the two drivers a few minutes after 2 p in indicated that Flack was then still engaged in distributing leaflets . It is not clear from Flack's testimony whether he used the present tense or past tense in referring to his activity on the Clairmont dock. However, I credit Flack's testimony that he did not distribute any literature after 2 p.m. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with this order. Flack testified further that White, Clairmont's office manager, then approached him and refused to handle his freight because of the work stoppage; and that, after a visit to the police station, Flack reported to his dispatcher' that he could not effect delivery. It is undisputed that his dispatcher then ordered Flack to take his freight to another carrier, which he did. Flack's version is corroborated by White, who testified that about 20 minutes after Flack talked to Cushman on the telephone, as related above, he (White) went down to the dock from his office, saw three strange men there with Flack, and noticed that the dockmen had stopped work. In response to White's inquiry, an unidentified member of the group on the dock stated that work had been stopped "due to the difficulty" with Flack and that "the truck would not be worked unless he got out of here." White thereupon ordered Flack to remove his truck, returned his bill of lading to him with a notation that Clairmont could not unload his truck due to "union diffi- culty," and, after indicating to the dockmen that the matter was settled, ordered them back to work. They complied. A different version was given by Palumbo, Clairmont's dock foreman and a mem- ber of Respondent Union.8 He testified that: On October 11 between 1 and 2 p.m., he observed Flack at the Clairmont dock surrounded by dockmen to whom he was passing out literature; the dockmen stopped work to read the literature; Palumbo called the office of the Respondent Union and complained to Janopoulos that a Cush- man driver was passing out leaflets at the dock and interfering with the work of the dockmen; Palumbo urged Janopoulos to send someone down to tell the dockmen "to get back to work" or they would risk disciplinary action; Janopoulos promised to attend to the matter. Shortly thereafter the three aforementioned representatives of Respondent Union arrived at the dock; Palumbo complained to them that Flack was passing out pamphlets and had caused some of his men to stop work and some of the men were still not working. The union representatives told Palumbo to order all the dockmen to stop work and to assemble them together in order to "straighten this thing out," and Palumbo complied. The union representatives expressed concern lest the dockmen be disciplined for stopping work to read Flack's literature, and admonished them not to listen to Flack, and to get back to work; Palumbo thereafter asked Flack to leave because he was "tying" up the dock; it is a rule of the Respondent Union that, in case of a slowdown, the business agent be notified, and the culprits told to "straighten up" lest they be disciplined; and there is a rule of Clairmont against drivers loiter- ing on the dock. Middleton testified that on October 11. Janopoulos instructed him to take two others with him to the Clairmont dock and find out what was amiss there; when Middleton arrived at the dock about 1 p.m., Palumbo complained that the dockmen had quit work and were talking to Flack, who was passing out literature, and Palumbo could not get them back to work; Middleton saw some dockmen talking to Flack and others reading handbills, and Middleton directed the dockmen to return to work. Janopoulos testified that about 12:30 or 1 p in. on October 11, he received a call from Palumbo reporting that a "Cushman driver" was passing out leaflets on the dock and that some of the dockmen had stopped work, and in response to this call he sent the three organizers mentioned above to the Clairmont dock. Janopoulos admitted that Palumbo identified the Cushman driver as Flack, and that Janopoulos knew that Flack was distributing Rebel Teamsters literature. Neither Bonarigo nor DeWan appeared at the hearing Thus, according to Flack, after he had ceased his propaganda activity, and shortly after he spoke to Barney Cushman, Bonarigo caused all the dockmen to stop work in order to force Flack to leave the dock; and White corroborated Flack that there was a complete work stoppage, that its purpose was to force him off the dock, and that this occurred after Flack spoke to Barney Cushman.9 Palumbo, while admitting that there was a com- plete work stoppage and that it was ordered by Local 710's organizers, contended that the purpose was not to force Flack off the dock but rather to permit the organizers to address the dockmen in a group in an effort to restore the discipline which had been disrupted by Flack's propaganda activities. Middleton, on the other hand, did not even concede that there was a work stoppage induced by him or his colleagues, but testified only to the disruption of work on the dock as a result of Flack's activities and that Middleton ordered the men to return to work. According to both these 8 Although called by the General Counsel , he proved to he a hostile witness 9 Although White gave the time of the stoppage as 1:30 p in ., I find he was mistaken, as Barney Cushman corroborates Flack that their telephone conversation occurred after 2 pm. As it has been found that Flack's propaganda activity did not continue beyond 2 p in , White's testimony insofar as it places the work stoppage after the Cushman-Flack conversation , tends to corroborate Flack's testimony that the stoppage occurred after he had ceased distribution of the handbills and returned to his truck. CUSHMAN MOTOR DELIVERY COMPANY 153 witnesses, Middleton and his colleagues arrived on the scene in the midst of Flack's activity, and not, as Flack testified, after such activity had been terminated. In view of the foregoing conflict between Palumbo and Middleton, and, as Flack's version is corroborated by White-the only disinterested witness to testify concerning this incident-I credit Flack, and I find that on October 11, acting under instructions from Janopoulos to deal with the situation at the Clairmont dock, Bonarigo caused the dockmen to stop work in order to force Flack to leave the dock, that this occurred about half an hour after Flack had ceased his propaganda activity, and that as a result of this work stoppage Flack was unable to effect delivery of his freight to Clairmont. The Scherer Incident On October 13, between 1:30 and 2 p.m., Flack arrived with a loaded trailer at the dock of the Scherer Freight Company. There is no dispute that Flack began to unload his truck with the help of one of Scherer's employees; that Flack while so engaged attempted to convert this employee to the cause of the Rebel Teamsters; that Smith, Local 710's steward on the Scherer dock, approached Flack, and that a scuffle ensued between the two. There is, however, sharp conflict as to who was the aggressor and as to the ensuing events. According to Flack, Smith entered Flack's trailer, reviled Flack, directed him in obscene language to desist from his "Rebel talk," and invited Flack to step out on the dock, threatening to beat him up. Flack added that: He put one foot on the dock, whereupon Smith struck him, knocking Flack against a meathook that was hanging on the side of the trailer ; Smith then ordered everybody on the dock to stop work and not to move any freight so long as Flack was there; Flack then went across the street to call the police; after he returned to the dock a sound truck arrived on the scene, and broadcast the admonition "not to listen to the rebel talk and to stop the work"; five or six men, including Janopoulos, emerged from the sound truck, as Janopoulos approached the dock, he said to Flack, "You are a dead son of a bitch now," adding a particularly obscene expression; and he attempted to attack Flack, but was held back by others. Smith's version was as follows: While working on the dock, he saw Flack in his trailer talking to one of Scherer's checkers. This continued for about half an hour. Both men had papers in their hands which Smith ascertained were applications for membership in the Rebel Teamsters Union. When Smith asked the checker to come out of the trailer, both men emerged . Flack held a meathook in his hand, and shouted , "Join the Rebel Union"Observing that this caused the other dockmen to stop work, Smith ad- monished Flack to return to his trailer. When Flack refused, Smith warned him that he would call Flack's dispatcher and have his trailer removed from the dock so that the dockmen could do their work. Thereupon, Flack flew into a rage, and struck Smith across the chest with the side of the meathook, while reviling him as a "hill billy son-of-a bitch" and declaring that Smith would cause him to lose his job. Smith then told his supervisor, Wertz, about the work stoppage on the dock caused by Flack's outburst, asked Wertz to intervene, which he agreed to do, and at the same time called his business agent, Janopoulos , to get the men back to work. Janopoulos arrived at the dock with the three organizers involved in the Clairmont incident, and told the dockmen to go back to work. Smith denied that he saw any sound truck approach the dock or heard anybody tell the dockmen to stop work or to ignore the Rebel talk.'° Although they testified about other matters, neither Janopoulos nor Middleton was examined about this incident. As already noted, neither of the two other rep- resentatives of Local 710 appeared at the hearing. I have determined to resolve the foregoing conflict in favor of Flack for the follow- ing reasons: 1. It is undisputed that it was he, and not Smith, who called the police to the scene after the altercation described above. 2. Although two of the four Local 710 representatives involved in the incident were present at the hearing and testified about other matters and there was no show- ing that the other two were unavailable , Local 710 did not see fit to call upon any of these four individuals to corroborate Smith. 3. I was impressed more favorably by Flack's demeanor than by Smith's. More- over, I had an opportunity to observe Flack at some length during the course of the hearing, as he testified for the better part of 2 days. He was highly articulate and intelligent , and impressed me as a man of unusual integrity , even to the point of eccentricity and unworldliness. 10 Smith did not dispute Flack's testimony that he summoned the police , and in fact admitted that he (Smith) did not call them. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. If Smith's only concern was, as he claimed, to restore discipline among the dockmen, it is not clear why he felt it necessary to invoke the aid of Janopoulos, his business agent, after he had already notified his supervisor of the situation. It would seem that the supervisor would be the logical one to handle a disciplinary problem and that he would not need the aid of a union business agent. Accordingly, I find that on October 13, in an effort to stop Flack's proselytizing activity, Smith threatened Flack with physical violence, struck him, and ordered a work stoppage on the dock to force Flack to leave, and that Janopoulos, at Smith's request, came to his aid with a sound truck broadcasting an order to the dockmen to stop their work and to ignore the "Rebel talk." After the foregoing events and a visit to the police station, Flack called his dis- patcher and notified him that he could not effect delivery, whereupon another driver was assigned to complete the delivery. Flack then returned to Cushman, where he was given a letter of discharge. The Discharge Letter This letter, dated October 13, drafted by Barney Cushman, and signed by Perlson, Respondent Company's vice president, recites a number of instances of unsatisfactory conduct on the part of Flack, including the above-described incidents at Clairmont and Scherer, and concludes with a notice of discharge. Barney Cushman, by his own admission, began to draft this letter in the morning of October 13, as a warning letter, inspired by the incident at the Clairmont dock 2 days before. However, before completing the draft, he was told that Flack was involved in another incident at the Scherer dock, and that Flack had been taken away by the police, leaving his truck at the dock. After sending another driver to complete Flack's delivery, Barney Cushman decided to convert his warning letter into a discharge letter.ii The letter cites the following misconduct by Flack during the second period of his employment: 12 (1) The fact that one morning he reported sick, yet the same afternoon was seen near Cushman's terminal posing for photographers and being interviewed for a television program. (The record shows that this incident occurred on the same day as Flack's en- counter with Janopoulos at the Cushman terminal, which date I have found was September 11. Flack admitted that he reported sick, but explained that this was because he was emotionally upset by his encounter with Janopoulos and was other- wise indisposed, so that he did not think it was safe for him to undertake the physical and nervous strain of driving a heavy truck, although his condition was not serious enough to interfere with such less taxing activities as he undertook that day. These included driving his own auto, and posing for, and talking with, television camera- men, who had learned of his encounter with Janopoulos and interviewed him about it. In any event, whatever the merits of Flack's explanation, it is clear that Re- spondent Company did not at the time of the foregoing incident deem it sufficiently reprehensible to merit even a warning letter. It is admitted that throughout his second period of employment Flack did not receive any such letter, nor is there any evidence that he was otherwise reprimanded for the September 11 incident.) 2. The fact that in the morning of October 11, prior to his trip to Clairmont, he took 45 minutes to deliver a load to a point only 41/2 miles from the Cushman terminal, and that it took him 20 minutes to proceed from that point to Clairmont, a distance of only 1 mile. "The foregoing findings as to the discharge letter are based on Barney Cushman's uncontroverted testimony. 12 At the outset, the letter makes brief reference to misconduct of Flack which allegedly caused his initial discharge in December 1960. However, as he was reinstated despite such misconduct, and in view of the number and character of his subsequent derelictions cited in the discharge letter, I do not believe that any events during Flack's first period of employment could have materially affected the decision to discharge him again. It was for this reason that I excluded from the record testimony offered by both the General Counsel and Respondent Company concerning the reasons for Flack 's initial discharge Moreover, I have given no weight to testimony at the hearing concerning any of Flack's shortcomings during his second period of employment which are not referred to in the discharge letter. In view of the comprehensiveness of that letter , I deem it unlikely that Cushman would have omitted any reference thereto if he regarded them as having any bearing on Flack's desirability as an employee . Moreover, there was no specific testimony at the hearing that such shortcomings contributed to Flack's discharge. CUSHMAN MOTOR DELIVERY COMPANY 155 (Flack did not seriously dispute the accuracy of these figures. He was unable to recall the reason for the delay on the first of these trips. As to the trip to Clairmont, he explained that he stopped for coffee on the way to Clairmont. In any case, Barney Cushman's testimony as to the events leading up to his decision to write the October 13 letter made no reference to the foregoing delays but cites only the events at Clairmont after Flack's arrival there. Moreover, I credit Flack's testimony, which was not specifically denied by Barney Cushman, that he told Flack in their telephone conversation on October 11, after reprimanding him for his activity at the Clairmont dock, that he would receive a "warning notice." As Barney Cushman, according to his own testimony, made no reference in this telephone conversation to the time consumed by Flack in making his trips that morning, it is clear that Cushman's mention of a warning notice was related only to, and prompted by, the occurrences at the Clairmont dock after Flack's arrival. I find, therefoie, that the decision to issue a warning notice was not influenced by the foregoing delays but only by the later events.) 3. The fact that he circulated "rebel teamster literature and application blanks" at the Clairmont dock on company time, and that this activity created a "disurbance," and tied the dock up in a "labor dispute," resulting in the rejection of Flack's freight and its reassignment to another carrier at some additional expense to Cushman.13 (It has already been found that the foregoing activity did not occur on company time but during time that Flack was entitled to treat as his own. As to the significance of the fact that Flack's activity caused Cushman to incure the additional expense involved in reassigning his load to another carrier, see the discussion below.) 4. The fact that the handbills distributed by Flack at Clairmont contained "deroga- tory comments" about Cushman. This has reference to an appeal in the handbills for action to force various carriers, including Cushman, to discontinue their alleged practices of overloading trucks, switching license plates, using defective equipment, and destroying records. (Whether or not these charges were justified, the matters complained of, par- ticularly the use of defective equipment, affected the welfare of the drivers whose support the Rebel Teamsters was seeking. Accordingly, I do not deem the foregoing language in the handbills to be so unrelated to the object of Flack's activities as to remove such activities from the protection of the Act.14 It follows that, even if this language influenced the decision to discharge Flack, it would not be a proper ground for discharge under the Act.) 5. The fact that on October 10 Flack distributed literature at the Cushman dock just before he punched out for the day. (Barney Cushman's testimony under cross-examination shows that this charge was based on information received by him from one of his dockmen on October 12.15 However, the fact that he did not mention this in testifying, under direct examination, concerning the events leading up to Flack's discharge, together with the absence of any evidence that Barney Cushman knew about, or referred to, this incident when he notified Flack on October 11 that he would receive a warning letter, is persuasive that it did not materially affect Flack's discharge.) 6. The fact that on October 13, at the Scherer dock, Flack, instead of unloading his truck, began distributing pamphlets, which "enraged the dockmen at Scherer to the extent that they refused to unload" Flack's truck, and which resulted in an altercation which "completely disrupted the Scherer dock for several hours," and necessitated the dispatch of another driver to complete Flack's delivery. (The only evidence that Flack was distributing literature at Scherer was the testi- mony of Smith, related above, that he saw Rebel Teamsters literature in the hands of Flack and of the checker who was helping him unload. This was denied by Flack, whom I credit. Flack admitted, however, that he was talking to the checker about the Rebel Teamsters movement, while unloading, and it is clear that this occurred on company time. (The implications of this will be discussed later.) The record does not, however, support Cushman's charge that the altercation between Flack and Smith disrupted the Scherer dock for several hours. It is true that after their altercation, Flack and Smith left the dock for the police station where they remained 11 As already related, when Clairmont's office manager refused to accept Flack's freight, his dispatcher instructed him to deliver the freight to another carrier 14 Cf N.L.R.B v. Local 1229, International Brotherhood of Electrical Workers, 346 US 464 1511arney Cushman's testimony was that this activity by Flack was reported to have occurred in the evening of October 11, rather than October 10, as indicated in the latter There is no competent evidence that Flack actually engaged in this activity on Cushman's premises and time on either date. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for about an hour. However, there is no evidence as to the effect of such absence on Scherer's operations generally.) C. Discussion Cushman's counsel contended at the hearing that Flack was discharged for all the reasons alleged in the October 13 letter, as well as for other reasons not there cited, relating to Flack's second period of employment. As already stated, in view of the extensive catalogue in the October 13 letter, it is difficult to believe that any matters which were not there referred to (or otherwise called to Flack's attention at any time) could have materially influenced Cushman's decision to discharge Flack. Even as to the matters alleged in the letter, the September 11 incident as already stated does not merit consideration, as it did not elicit any reprimand or warning letter at the time; nor, for reasons already noted, do the other incidents mentioned in the discharge letter, except for the events on the docks at Clairmont and Scherer. It was these events which admittedly prompted Barney Cushman to write the "warning-discharge" letter. As to the Clairmont and Scherer incidents, the question arises whether a discharge because of those incidents violated the Act. The Act forbids discharges for pro- tected concerted activity and it is clear that Flack was engaged in concerted activity at both docks, soliciting support for the Rebel Teamsters movement. Such solicita- tion is not protected, however, if it is in violation of a company rule against solicita- tion on company time. There is no evidence that any such rule was ever promulgated by Cushman prior to October 11 16 Moreover, treating Barney Cushman's admoni- tion to Flack on October I1 as the promulgation of such a rule, it is clear that such admonition was given only after Flack's solicitation at Clairmont had ceased. I find, therefore, that Flack's concerted activity at Clairmont was protected because (1) Cushman had not yet promulgated any rule against union activity on company time, and (2), in any event, Flack's activity did not occur on company time. It is true that at Scherer, Flack did engage in solicitation during his working time, notwithstanding that this had been forbidden by Cushman only 2 days before. The question arises whether this fact justified his discharge. I have concluded that it did not, for the following reasons: 1. The discharge letter, in referring to the Clairmont and Scherer incidents, stressed the fact that they both involved (1) union activity by Flack during worktime, (2) the creation of a disturbance at the respective docks, (3) the disruption of operations at such docks, and (4) the incurring of extra expense by Cushman in completing Flack's deliveries. Even assuming for the moment that Cushman was concerned only about the first of these factors (the actual or supposed misuse of worktime for union activity), I do not believe that Cushman regarded Flack's conduct in this re- spect at Scherer as any more reprehensible than his apparently identical conduct at Clairmont. Although the Scherer incident triggered the decision to discharge Flack, Barney Cushman was sufficiently aroused by the Clairmont episode to proceed to draft a "warning" letter-which, I take it, was intended to warn Flack that any repetition of his action would result in discharge When his action was in fact re- peated before the letter was completed, the warning notice and notice of discharge were telescoped into a single letter. I find, therefore, that both incidents were co- ordinate causes of Flack's discharge, and that neither incident alone would have prompted such discharge. Accordingly, even if the extent of Flack's use of worktime for union activity were deemed to have caused his discharge, I would find that the discharge was unlawful because based at least in part on the supposed misuse of worktime at Clairmont, which was not a lawful ground for discharge.17 2. I am satisfied, in any event, that, both at Scherer and Clairmont, Barney Cush- man was less concerned about the extent of Flack's use of worktime in pursuing his concerted activities than about the economic consequences to Cushman and its interlining carriers of Flack's clashes with Local 710 and his inability to complete his deliveries. As already noted, the discharge letter cites these consequences as factors in his discharge. Moreover, since Local 710 controlled access to the docks of all the common carriers in Chicago,18 the stoppages were necessarily of concern to 16 Cushman's "Driver's Manual," submitted in evidence, although purporting to pre- scribe rules governing the conduct of drivers, does not contain any rule pertaining to union activity during working hours 11 See Hill f Hill Truck Line. Inc , 120 NLRB 101, 102 and cases there cited. While the actual misuse of worktime at Scherer was a lawful ground for discharge, a discharge for two reasons, only one of which is lawful, violates the Act is Janopoulos testified, and I find, that Local 710 represented the dockmen of all the common carriers in Chicago, a total of 18,000 dockmen. CUSHMAN MOTOR DELIVERY COMPANY 157 Cushman, not only because of their immediate effect, but also because they portended a complete embargo by the Chicago dockmen against any freight handled by Flack, at least as long as he carried on his Rebel Teamsters activities . In view of the threat of such an embargo, which would have rendered the services of Flack valueless to Cushman, it would be idle to speculate to what extent his discharge may have been influenced by other factors , such as his use of worktime for concerted activities. I find, therefore , that such use of worktime was not a significant factor in Flack's discharge, but that the paramount consideration in his employer 's mind was Local 710's apparent determination , as manifested by the stoppages at Clairmont and Scherer, to prevent Flack from effecting delivery at any dock on which he engaged in Rebel Teamsters activity, with the attendant consequences of disruption of the op- erations of Cushman and its interlining carriers . I find, therefore, that Flack's dis- charge stemmed mainly from the opposition of Local 710 to his Rebel Teamsters activity. Local 710 contends that such opposition was not because of the anti -Teamsters aspect of Flack's activity , but was due solely to the fact that such activity interferred with the work of the dockmen and violated a company rule against loitering on the dock by drivers. If this be true , and if Flack's discharge may thus be attributed to activities of Local 710 unrelated to the anti-Teamsters aspect of his concerted activities, it may well be that his discharge would be lawful . However, I find no merit in this contention, for the following factual reasons. 1. At Clairmont, as found above, Flack's activity had ceased sometime before the work stoppage was ordered by Bonarigo . Accordingly , there was no longer any need to take any such action in order to counteract Flack 's activity. 2. Moreover, as to both Clairmont and Scherer , it seems inherently incredible that Palumbo and Smith would appeal to Local 710 to enforce discipline rather than rely, in the case of Palumbo, on his authority as a supervisor or, in the case of Smith, on the intervention of his supervisor , Wertz, who, according to Smith, had promised to handle the situation. 3. In any event, in view of the similarity between the two incidents , the involve- ment therein of the same three representatives of Local 710 under the leadership of Janopoulos, who only a month before had warned Flack, in the context of an abusive attack on the leadership of the Rebel Teamsters , that he would be "run off" every "710 dock," and in view of the fact that Flack's Rebel Teamsters movement was competing with Local 710 for the allegiance of the dockmen and drivers at Scherer and Clairmont, I find that the sole purpose of the work stoppages at those premises was not to restore discipline or prevent loitering , but to carry out Janopoulos' threat that Flack would be denied access to the docks in reprisal for his Rebel Teamsters activity. I find further that by Flack 's discharge as a result of such work stoppages the Respondent Company violated Section 8(a) (3) and ( 1) of the Act. Had Local 710 expressly demanded that Cushman discharge Flack because of his activities on behalf of the Rebel Teamsters and had he been discharged for that reason , there would be no doubt of the illegality of such discharge . While it is true that Local 710 did not in terms demand that Cushman discharge Flack , I find that it caused such discharge as surely as if it had made such a demand ; for Local 710, by the work stoppages, manifested its opposition to Flack's concerted activities in terms which left Cushman no practical or lawful 19 alternative other than the discharge of Flack. There remains the question whether Local 710's role in Flack 's discharge was such as to warrant a finding that it caused his discharge , in violation of Section 8(b)(2) and ( 1)(A) of the Act. It has been found that Local 710 instituted the work stoppages and that such stoppages induced Cushman to discharge Flack. Moreover , it is apparent that Flack's discharge was a foreseeable result of the work stoppages . Under those circumstances , I have no difficulty in finding that Local 710 caused Flack's discharge, thereby violating Section 8(b)(2) and ( 1)(A) of the Act.20 19 While Cushman may have had the alternative of retaining Flack on condition that he forgo any Rebel Teamsters activity, adoption of this alternative would also involve a vio- lation of the Act. ao While there was no evidence at the hearing that Smith, as Local 710's steward, was expressly authorized to order the work stoppage at Scherer, the question of Smith's authority is rendered moot by the fact that his action was ratified by Janopoulos upon his arrival at the scene. Janopoulos denied that he had any power to order a work stoppage, except when management had failed to abide by an arbitration award How- ever, as Local 710's business agent, he was the liaison between the members and their union , outranking in that respect the steward. He was therefore the highest ranking union representative with whom the dockmen at Scherer had any direct contact in their 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above , occurring in con- nection with the operations of the Company 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 com- merce and the free flow of commerce. V. THE REMEDY It having been found that Cushman and Local 710 engaged in unfair labor prac- tices in violation of Section 8(a)(3) and (1) and Section 8(b)(1) (A) and (2) of the Act, respectively, it will be recommended that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Local 710 unlawfully caused Flack to be discharged on October 13, 1961, I shall recommend that Local 710 notify Cushman forthwith in writing that it has no objection to Flack's employment, and at the same time request Cushman to offer Flack immediate and full reinstatement to his former or substan- tially equivalent position, and simultaneously serve a copy of such notice and re- quest on Flack. I shall also recommend that both Respondents, jointly and severally, make Flack whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned, absent any discrimination, from October 13, 1961, less his net earnings (Crossett Lumber Company, 8 NLRB 440, 497-498) during said period 21 Such net backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. As the Respondents' unfair labor practices found herein go to the heart of the Act, it will be recommended that the order contain a broad injunction against any form of restraint or coercion by the Respondents. Upon the basis of the above findings of fact, and upon the entire record, I adopt the following: CONCLUSIONS OF LAW 1. The Respondent Company is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Flack because of the Respondent Union's opposition to his concerted activities on behalf of the Rebel Teamsters Union, the Respondent Com- pany violated Section 8 (a) (3) and (1) of the Act. 4. By causing the Respondent Company to discharge Flack for discriminatory reasons, in violation of Section 8(a)(3) of the Act, the Respondent Union has vio- lated Section 8(b) (1) (A) and (2) of the Act 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] day-to-day operations, and it necessarily follows that the members of Local 710 looked to Janopoulos for instructions on all matters pertaining to the discharge of their obligations as union members while on the job. See Genuine Parts Company, 119 NLRB 399. With respect to the Clairmont incident, the work stoppage was ordered by Bonarigo, who, as a union organizer, had at least apparent authority to take the necessary steps to combat organizing activity by a rival union , such as Flack was engaged in Moreover, he was acting under the direction of Janopoulos who, as I have just found , had the power to bind Local 710 by his intervention at Scherer under similar circumstances. Accordingly, I find that Local 710 was responsible for the conduct of Bonarigo and Janopoulos in ordering the work stoppage at Clairmont , and for the similar conduct of Smith and Janopoulos at Scherer Cf Lloyd Reisner, Business Agent of Local 135 et al. (Midwest Transfer Company), 112 NLRB 17, 18; The Grauman Company, 100 NLRB 753, enfd 205 F. 2d 515 (C.A 10). 21 Liability for backpay shall run until Cushman offers Flack reinstatement to his former or substantially equivalent job. However, Local 710's backpay liability shall end, in any event, 5 days after it notifies Cushman that it does not object to Cushman's employ- ing Flack, as provided above.