New York Central Transport Co.

1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lathers should not be disturbed. Accordingly, we shall determine the existing jurisdictional dispute by deciding that lathers, rather than carpenters, are entitled to the work in dispute. In making this de- termination, we are assigning the disputed work to the employees of McHugh who are represented by Local 143, but not to that Union or its members. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings and the entire record in this proceeding, the Board makes the following determination of dis- pute, pursuant to Section 10 (k) of the Act : 1. Lathers employed by McHugh, who are represented by Local 143, Wood, Wire and Metal Lathers Union, AFL-CIO, are entitled to perform the work of erecting nailable metal studs used in the installa- tion of partitions and perimeter walls on the Pearl River High School, Pearl River, New York. 2. Local 964, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is not entitled by means proscribed by Section 8 (b) (4) (D) of the Act, to force or require the Employers to assign the above work to carpenters. 3. Within 10 days from the date of this Decision and Determina- tion of Dispute, Local 964, International Brotherhood of Carpenters and Joiners of America, AFL-CIO, shall notify the Regional Director for the Second Region, in writing, whether or not it will refrain from forcing or requiring the Employers, by means proscribed by Section 8(b) (4) (D), to assign the work in dispute to carpenters rather than to lathers. New York Central Transport Company and Sidney Schwartz. Case No. 7-CA-3344. April 9, 1963 SUPPLEMENTAL DECISION AND ORDER On June 29, 1962, Trial Examiner Eugene E. Dixon issued his Intermediate Report in the above-entitled proceeding, finding that the operations of Respondent came within the jurisdiction of the Na- tional Mediation Board, rather than the National Labor Relations Board. Accordingly, without passing upon the merits, the Trial Examiner recommended that the complaint be dismissed. On September 28, 1962, the Board issued its Decision and Order,' finding that Respondent was subject to the National Labor Relations Act, and remanding the proceeding to the Trial Examiner for the 1 New York Central Transport Company, 138 NLRB 1325. 141 NLRB No. 99. NEW YORK CENTRAL TRANSPORT COMPANY 1145 preparation of a Supplemental Intermediate Report with respect to the unfair labor practices alleged in the complaint. On November 14, 1962,.the Trial Examiner issued his Supplemental Intermediate Re- port and Recommended Order, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and that it take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 entire record in this case,' including the Intermediate Report, the excep- tions, and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts the Recommended Order of the Trial Examiner as its Order.' 2 The Respondent filed a motion with the Board to reopen the record (1) to adduce cer- tain allegedly newly discovered evidence which is not in the record because the Trial Examiner denied the Respondent's motion for a further hearing; and ( 2) to reverse the Trial Examiner's refusal to grant the Charging Party 's request to withdraw the charge. The evidence sought to be introduced would, according to Respondent, show ,that cer- tain confidential information normally in the hands of only a supervisor or managerial employee had been transmitted apparently by Schwartz to the Union . We find, however, that this additional evidence, even if it were introduced, is not sufficient to overcome the preponderance of the record evidence, which establishes that Schwartz was not a super- visor within the meaning of the Act As to the Charging Party's request , once a charge is filed, the General Counsel proceeds, not in the vindication of private rights, but as the representative of an agency entrusted with the power and the duty of enforcing the Act in which the public has an interest. This Ingalls Street Construction Company, 126 NLRB 584, footnote 1 ; Local No. 511, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, et at (New Mexico Building Branch, Associated General Contractors of America ), 120 NLRB 1658, 1659, foot- note 1. Here the General Counsel opposed the withdrawal of the charge. Accordingly , we deny the Respondent's motion to reopen the record, and we affirm the Trial Examiner's rulings with respect to these two matters. 3 As the record and the Respondent 's exceptions and brief adequately present the issue's and the positions of the parties , the Respondent's request for oral argument is denied. 6 For reasons set forth in his dissent in Isis Plumbing & Heating Co , 138 NLRB 716, Member Rodgers would not grant interest on backpay , and does not approve such an award here. The Appendix attached to the Intermediate Report is hereby modified by: (1) adding the following statement immediately below the signature line at the bottom of the notice: NOTE -We will notify the above-named employee, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. and (2 ) deleting the words "like or related" from the fifth paragraph thereof. 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD SUPPLEMENTAL INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On June 29, 1962, I, Trial Examiner Eugene E. Dixon, issued an Intermediate Report (IR-290-62, Detroit, Michigan) wherein I concluded and found that the operations of New York Central Transport Company, herein called the Respondent, came within the jurisdiction of the National Mediation Board rather than the National Labor Relations Board, herein called the Board. Accordingly, without passing upon the merits of the complaint (issued by a representative of the Board's General Counsel, herein called the General Counsel ), which alleged violations of Section 8 (a)(1), (3), and (4) of the National Labor Relations Act as amended (61 Stat. 136), herein called the Act, I recommended that the complaint be dis- missed. On September 28, 1962 , the Board issued its Decision and Order , New York Central Transport Company, 138 NLRB 1325, remanding the case to me for the preparation and issuance of a Supplemental Intermediate Report setting forth my findings of fact, conclusions of law, and recommendations with respect to the unfair labor practices alleged in the complaint. Upon consideration of the entire record in the case , and upon my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS INVOLVED New York Central Transport Company is an employer within the meaning of Section 2 (2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.' H. THE LABOR ORGANIZATION INVOLVED Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inc., herein called the Union, within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues and contentions The main issue in the case is whether or not Sidney Schwartz (the Charging Party herein) was terminated by Respondent and not reinstated in violation of Section 8(a)(3) and (4) of the Act. Respondent defends on two grounds: (1) That Schwartz was a supervisor within the meaning of the Act; and (2) that Schwartz' termination was caused solely by a lack of work and had no connection with his union activity or his having filed charges with the Board. 1. Schwartz' status Before coming to work for Respondent in January of 1961 at $475 a month, Schwartz had spent about 20 years in the transportation industry. Most, if not all, of this time he had been with the Packard Motor Car Company where he was involved with its trucking and cartage functions. In this connection he handled dispatching and records and from 1951 to 1956 was in a supervisory position. At the time of his layoff at Packard (apparently in 1958) he was in the "five-hundred- dollars-a-month" salary bracket. After Packard, Schwartz worked a couple of years for the Chrysler missile plant in Warren, Michigan, as a planning and specifi- cations clerk starting at $393 a month and ending "with about four sixty ...." Schwartz learned of an opening for a dispatcher with Respondent through the Traffic Club of Detroit of which he was a member. In an interview with Walter Pronyk, Respondent's then terminal manager,2 he outlined his background and ex- perience. Pronyk told him that "the dispatcher's job was filled, but that he needed 1 New York Central Transport Company, supra. 2 Pronyk testified that the term "terminal manager" was used interchangeably with the term "operations manager " As terminal-operations manager, Pronyk had complete charge of Respondent's entire Michigan operation which included supervision of the garage and "all of the road operations." At the time of the hearing, Pronyk's title was "district manager." NEW YORK CENTRAL TRANSPORT COMPANY 1147 a man in the office...." After getting the approval of his supervisor in Cleveland, Pronyk hired Schwartz as "office manager." 3 When Schwartz began working for Respondent, in addition to Operations Man- ager Pronyk there were three others working in the office, Ann Weil and Marlene Mauer, classified as stenographers,4 and Murray Cohen. The latter left sometime after Schwartz was hired, apparently having been utilized only for a specific project. In addition to Schwartz and his two coworkers at Respondent's 12th Street location 5 there was also Charles R. Hammontree who, at the time Schwartz was hired, was terminal-operations manager Pronyk's assistant. Schwartz testified in detail as to the specific functions of his job. There is no question and I find, as testified to by both Schwartz and Pronyk, that Schwartz' duties were routine. It also appears and I find that his duties were entirely clerical6 However, according to Pronyk, notwithstanding that Schwartz' work was routine, it was his job to see that it was performed in Pronyk's absence. In this respect, Schwartz was to "be in charge of-to see that all of the work was done in the office, if the dispatchers had any problems, . . . if he couldn't do it he would ask Mr. Hammon- tree who was with the Company longer ...." According to Pronyk's further testi- mony, Schwartz had authority to issue reprimands, to discharge, and to "review procedures." Schwartz never discharged anyone during his employment with Respondent. On occasion he did "issue" a reprimand to a driver, typing the matter up, signing Pronyk's name thereto and initialing it. But this function consisted solely of listing and transmitting to the drivers clerical errors or omissions on their part in accordance with written standards provided for by agreement between the collective-bargaining representative of the drivers and the Company. For the first 2 weeks of his employment Schwartz worked at a desk located in Pronyk's private office for the purpose of convenience and expedition in learning his new duties; thereafter he was located in the outer or general office with other office workers. According to Schwartz' testimony he had no supervisory authority over the other office employees 7 and work assignments were given them directly by Pronyk. In Pronyk's absence, Hammontree was in charge and Schwartz' duties were unchanged. Hammontree would come in the office (he apparently spent most of his time in the garage and had no desk in the office), go through the incoming paper- work and tell the office force what needed attention. Anything requiring a decision, according to Schwartz, was transferred to Hammontree. Admittedly, at all times material Hammontree was the only one in addition to Pronyk who had authority to sign Respondent's checks. According to Hammontree from 1960 to the time of Schwartz' hiring, he was assistant to Pronyk. During this period Russel Price was the chief dispatcher. As assistant to Pronyk, it was Hammontree's duty to "oversee the operations" and he was in charge in Pronyk's absence. His duties at this time involved supervision over the dispatching, over the garage and maintenance, over "all operations," in- cluding Weil and Mauer in the general office. When Schwartz was hired, Hammon- tree was transferred to the position of maintenance supervisor and Schwartz replaced him "so far as [Hammontree's] activities in the office were concerned " Then, in January 1962, Hammontree was promoted to the position of terminal manager. At that time, apparently, Pronyk assumed the title of "district manager." It appears from the testimony of both Pronyk and Hammontree that upon occa- sion after Schwartz was hired, Hammontree was looked to and relied upon by 8 Schwartz testified that he was not aware of his title until sometime after he started working. Nevertheless, his status of employment report shows his position as "office manager." ' Of the two only Well took shorthand. Mauer had been hired in April of 1960 to re- place another girl who had been doing general office work. 6 This was Respondent's main installation in Michigan and had a garage facility con- nected with it. Respondent also maintained a pickup and delivery station on Third Street in Detroit manned by a dispatcher and maintained another installation with a garage at Saginaw, Michigan 6 He checked drivers' timecards, handled payroll work and job status changes, processed invoices for payment, worked on tonnage and reports, picked up mail, bought office sup- plies, and did typing and filing. The only place where Schwartz' duties might conceivably have been considered to be nonclerical involved the issuance of reprimands to the drivers. But as will appear, this function also was strictly of a routine clerical nature. ' Both Well and Mauer testified credibly and without denial that they had never been told what Schwartz' position was to be and further that Schwartz never gave them orders. Wiel also testified credibly that Schwartz just did "general office work." 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Schwartz for the resolution of problems arising in the conduct of the business. But according to their version, such recourse was had only in the event Schwartz was in a quandry and involved, in effect, only advisory type action on Hammontree's part. It would appear from Hammontree's further testimony that notwithstanding his transfer (after Schwartz was hired) to the position of maintenance supervisor, he continued to exercise much the same overall supervisory functions as he had exercised prior to the transfer. Thus, in addition to the maintenance work (for which he had supervisory responsibility before his alleged transfer thereto) he continued to exercise authority over the dispatching function. Notwithstanding his testimony that Schwartz was in charge of the office in Pronyk's absence, he further testified that he had no knowledge regarding Schwartz' duties in the office. On this record even in the absence of the part Hammontree's testimony showed that he played in Respondent's organization, I would be disinclined to find that Schwartz was a supervisor within the meaning of the Act. But considering Hammon- tree's part in the operations, it seems to me that any weak inferences that might have been contended for to establish Schwi.rtz as a supervisor are completely obliterated. It does not make sense to me that Hammontree would have been de- moted, in effect, from Pronyk's assistant to maintenance supervisor-a function he already possessed. His subsequent promotion to terminal manager strengthens my skepticism. And what Hammontree testified to shows that regardless of what change, if any, took place in his title or job description after Schwartz was hired, there was susbtantially no change in his supervisory authority. Indeed, the same evidence would also strongly support the inference that there was no change what- soever in his supervisory duties and that he continued in authority over the office functions and its personnel, as well as over the rest of the operations, including the dispatching, the garage, and maintenance. This I find to be the fact, not only on the inference permitted by the record as a whole but on the basis of my crediting Schwartz' version of the matter. This, of course, eliminates the possibility of any supervisory functions having devolved upon Schwartz. Accordingly, I find that he was not a supervisor within the meaning of the Act .8 2. The Union and Respondent's reaction thereto There is no doubt and I find that Schwartz was the one who took the initiative in trying to get union representation for himself and his fellow employees. It was he who got union authorization cards from the Union, got them signed (eight in all) 6 and had one of the signers deliver them to the Union. Thereafter, the Union sent a wire to Respondent, directing it to the attention of Pronyk, notifying it that the Union represented a majority of the employees in a unit composed of all office employees, dispatchers (excluding chief dispatcher), and yard employees. The wire indicated that a union representative would call at Respondent's office on April 20, 1961, for the purpose of negotiating a collective-bargaining agreement. This wire was delivered to Respondent's office while Pronyk was out of town. Being included with the other opened mail on Pronyk's desk the office employees all read the telegram. According to Schwartz' testimony Pronyk returned to the office on a Thursday after the telegram had been delivered and there was no discussion or conversation with him for the rest of the week. On the following Monday morning Pronyk asked Schwartz why no one was talking to him. Schwartz replied "Well, after you got that telegram I didn't think you would want to talk to any of us." A couple of weeks later, according to Schwartz' further testimony, Pronyk called him into the office and told him to close the door. Pronyk then told Schwartz that if he joined the Union he would have to lay him off. Schwartz said nothing and walked out. A month or so later Schwartz was again called into the office by Pronyk This time Pronyk asked him if he "still persisted in joining the Union," and told him that if he "persisted in going ahead with the Union" Pronyk would have to discharge him Pronyk added that Schwartz would have to make up his mind one way or the other. A week or so later Schwartz was again called into the office. This time Pronyk asked him if he had made up his mind. Schwartz replied that he had, that his job was involved and that he was going to drop out of the Union. Pronyk replied, "That's only one," and added that Schwartz would have to get one 8 See N L R B v. Parma Water Lifter Co., 211 F. 2d 258, 261 (C.A 9), cert denied 348 U.S 829. In making this finding I am aware of and take cognizance of the fact that Schwartz during the earlier part of his employment often voluntarily worked on Saturdays and made no claim for time he put in over 40 hours a week. D Apparently this was the total number originally in the unit, three dispatchers, one yardman, and four in the office. NEW YORK CENTRAL TRANSPORT COMPANY 1149, of the girls to drop out also,'° and suggested that he see if he could get them to drop out. Schwartz thereupon talked to the two girls telling them that Pronyk had said they were going to be discharged if they insisted on the Union. Mauer was in favor of dropping out of the Union; Weil was not. The result was that the three employees decided to go ahead and take their chances with the Union. Schwartz then went back and told Pronyk "that Ann would not drop out and that [they] were going through with it, and that was it." According to Weil's testimony a few weeks after Pronyk had received the Union's telegram he called her into the office. There he asked her if she had signed a union card and had joined the Union. She replied that she had. Pronyk then told her that she was his secretary and could not belong to the Union." He told her to think it over. Sometime later in a second conversation with Pronyk he asked her if she had made up her mind about the Union. She replied that she had, that she had signed a card and that she would stay in the Union. Pronyk told her that if she did join the Union he would have to lay her off. According to Weil's further testi- mony either in this same conversation or in a subsequent one, Pronyk asked her if Schwartz had joined the Union. She replied that she did not know, that he might have changed his mind. Pronyk said that if Schwartz did join the Union he would have to lay him off. It also appears from Weil's testimony that Schwartz had told her that Pronyk had informed him that he could not belong to the Union because he was classified as an office manager. According to Mauer's testimony, besides corroborating Schwartz' testimony re- garding his having asked her and Weil to give up the Union, she testified that about a week after Weil's first conversation with Pronyk about the Union, she was called in and asked if she had signed a union card. She replied that she had. Pronyk asked "Is that the way you want it?" she replied "I guess that's the way it's going to have to be." In his testimony Pronyk denied having told anyone he would be discharged if he joined the Union. He admitted having asked Schwartz how an office manager with authority to reprimand, lay off, and discharge could belong to the Union. At this time Pronyk also mentioned the status of Weil in this connection, indicating that as a personal secretary she would be in the same position as the office manager vis-a-vis joining the Union. I credit Schwartz, Weil, and Mauer in the foregoing with the qualification that Schwartz and Weil were told by Pronyk that they could not belong to the Union because of their respective classifications of office manager and secretary. On August 11, Mauer was laid off being told that her layoff was due to a lack of work. According to Schwartz' testimony Mauer's layoff was not discussed with him and it came as a complete surprise to him.12 According to Pronyk's testimony prior to August 11, Schwartz explained to him that business was down and suggested that he lay off Mauer. Schwartz claimed that he and Weil could do the work. Pronyk agreed and the result was Mauer's layoff. In his further testimony about the matter Pronyk admitted (as testified to by Schwartz) 13 that immediately after Mauer was laid off Schwartz came into the office and told Pronyk that he could not lay Mauer off because they had the Union now. Pronyk thereupon told Schwartz that to his knowledge there was no union as he had "not been notified." I credit Schwartz here. It seems to me to be inherently implausible for Schwartz in one breath to have recommended Mauer's layoff and in the next breath to have opposed it before the same person who also happened to be the boss. 3. Schwartz' termination Schwartz was terminated by Respondent on August 31, 1961. According to his undenied and credited testimony, on that date about 10 minutes before quitting time Pronyk called him into his office, told him he had news for him, handed him a green slip and told him he was laid off. When Schwartz asked Pronyk who was going to 10 It seems that in the meantime the Union had eliminated the dispatchers and yardmen from the unit leaving only the office employees in it which apparently at this time was composed of only Schwartz, Mauer, and Well, Cohen presumably having by now left the job. 12 As Indicated, Well was classified as a stenographer v In his affidavit Schwartz had said that he "did not talk to Pronyk at all about Marlene Mauer prior to her layoff on August 11th" but that Pronyk "may have told [him] of his intentions the morning of August 11th." 23 According to Schwartz' testimony, on this occasion he went into Pronyk's office and told him, "Mr Pronyk, don't you think you should contact the union before you lay off, get rid of anybody?" Pronyk replied, "As far as I am concerned there is no union, and there won't be a union." 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do his work, Pronyk replied, "Nobody. It is going to lay here." Schwartz told Pronyk, "I know why you are laying me off. It's because I didn't drop out of the union." Pronyk just smiled and said, "You are through." When Schwartz offered to come in the following day which would have been the end of his workweek, Pronyk told him he did not have to come in and not to do so. Schwartz reiterated that he knew why Pronyk was letting him go and said, "You haven't seen the last of me. I am going to fight for my job. I am going to see the union and tell them what's going on," and walked out. According to Schwartz' further credited testimony, he had been given no warning of a layoff and was as "shocked" as when Mauer was terminated. A week later when Schwartz went to get his check he found Pronyk sitting at his (Schwartz') desk doing Schwartz' work. According to Weil's testimony, a few days after Schwartz was terminated, Pronyk told her that Schwartz should not have gone to the Labor Board; 14 "that work would probably pick up, and he would have liked to call Sid back to work, but that since he had gone to the Labor Board he couldn't." In his testimony Pronyk denied telling Weil that Schwartz could not be brought back because he had filed a com- plaint or charges with the Board. Notwithstanding that Weil's recollection had to be refreshed on the witness stand by the reading of her statement, I credit her here. In her testimony she impressed me as being a completely truthful witness. Further- more, no longer working for Respondent and having left on her own accord, she was in the position of having no personal interest in the outcome of the case and gave me that impression as she testified. 4. Respondent's defenses Respondent's contention that Schwartz was a supervisor and thus not entitled to the protection of the Act has been disposed of. Let us turn now to its alternative defense that Schwartz' termination was caused solely by a lack of work and had no connection with his union activity or his having filed charges. Pronyk testified that the number of its employees is governed by the number of outbound loads it has. The volume of Respondent's Flexivan loads by the month from the middle of 1960 through February of 1962 was as follows: 1960 July ----------------------- 280 May ----------------------- 557 August -------------------- 253 June ---------------------- 493 September ------------------ 422 July ----------------------- 330 October --------------------- 386 August -------------------- 170 November ------------------ 482 September ------------------ 322 December ------------------ 421 October -------------------- 323 November ------------------ 407 1961 J 334 December ------------------ 284 anuary -------------------- February ------------------- 333 1962 March --------------------- 420 January -------------------- 302 April ---------------------- 427 February ------------------- 336 According to Pronyk when Schwartz was hired they expected about 900 loads a month, or, as he described it, approximately what they had handled the previous year.15 According to Pronyk's further testimony, in July and August Respondent laid off an undisclosed number of drivers because of a lack of work.16 This decrease in the number of outbound loads (almost 50 percent from July to August) and the cut-down in the driver personnel was reflected in a decrease in the office work.17 Besides this general reduction in the operations caused by a decline in business, Pronyk also claimed that after Schwartz' termination certain of the office functions had been eliminated or changed or had been taken over by the dispatchers.18 11 Schwartz filed charges with the Board on September 5, 1961 15 A glance at the figures for the last half of 1960 (the only 1960 figures offered) In- dicates that their volume was nowhere near 900 loads a month 16 On cross-examination Pronyk admitted this drop in business was caused primarily by a strike in the automotive industry. 11 Schwartz and Mauer both testified that regardless of the fluctuations in amount of freight carried, the amount of work in the office remained relatively stable According to Mauer's undenied and credited testimony, at the time she was terminated (on August 11) Respondent had already called back some of its laid-off drivers. 18 For instance, they had eliminated the so-called 498's but had substituted a new form for them. Also the dispatchers now prepared the T57 forms. But it appears that the dispatchers had always performed this function before Schwartz was hired and that NEW YORK CENTRAL TRANSPORT COMPANY 1151 In addition to the foregoing evidence alleged by Respondent to show the lack of economic need for Schwartz' services, Pronyk analyzed Schwartz' duties step by step in detail to show the amount of time he took to perform each function. Summing up his analysis of an average day's performance by Schwartz Pronyk arrived at the conclusion that Schwartz could perform an average day's work in 2 hours' time! Conclusions There is no question that in August of 1961. Respondent's Flexivan loads of the Detroit operation had dropped a substantial amount. And I have no doubt and find that this drop must have been reflected to some extent (although perhaps not in the same proportion as the hauling drop) in Respondent's office work. But con- sidering the circumstances here and the record as a whole, I am convinced and find that this reduction in Respondent's business was not the cause of Schwartz's ter- mination, as claimed by Respondent, but that Respondent's motivation for dismissing Schwartz was the latter's union activity. To begin with, it is clear that the August slump in business, as admitted by Pronyk, was an artificial one caused by a strike in the automotive industry. There is no showing that Respondent had any reason to feel that business would not regain its former volume when the strike ended and its rehiring of some of the laid off drivers as early as August 11 would seem to have reflected some optimism in that direction on Respondent's part. Pronyk's attempt to write off Schwartz as unneeded by showing that his normal day's work could be done in 2 hours (which I do not credit) runs counter to other testimony by Pronyk that if business increased in 1961 over 1960, additional help would be needed.19 The figures show that the average monthly Flexivan loads were running about 15 percent higher in the first half of 1961 over the last half of 1960. While this increase may not have put undue pressure on Respondent's office force after Schwartz was added to it, it tends to justify Schwartz' hiring and Respondent's need of him. Conceded that the decline in business 20 in July and August may have required some temporary curtailment in the office force, that curtailment was accomplished by Mauer's layoff on August 11. There is no indication to what extent if any the results of the first 11 days of August figured in the decision to lay off Mauer. But it is noted that the percentage of decrease in July from the June figures was about 35 percent. The elimination of Mauer was, of course, a 33 1/3 percent reduction in the office force-just about balancing the drop in business. That the level of business after the strike ended did not reach as high as it was before the strike (the monthly average was about 20 percent less) might justify the failure to recall Mauer 21 but certainly would not justify the elimination of another person in the office which would then amount to about 47 percent less help in the office than it had before the strike. In addition to these considerations as militating against Schwartz having been terminated because of decreasing work in the office there is another factor to be weighed. Considering the experience and background that Schwartz had in the transportation field and his demonstrated initiative and desire to learn, it would seem to me that Respondent would have been reluctant to lose him even if his need for retention had not been as great as the record demon- strates that it was. For these reasons and considering the record as a whole I find that Schwartz was discriminatorily discharged in violation of Section 8(a)(3) of the Act. I also find, on the basis of Pronyk's admission to Weil that he would have called Schwartz Schwartz had been permitted to do them so he could get acquainted with all of Respond- ent's operations. 19I do not credit Pronyk's inconsistent testimony that Respondent hired Schwartz in anticipation of 900 loads a month. This would have been an increase of about 140 percent and at the time Schwartz was hired he represented only a 25-percent increase in the office force. 211 use the term "business" and base my entire analysis herein on the only figures sub- mitted by Respondent, the monthly Flexivan loads for the last half of 1960, all of 1961, and the first 2 months of 1962. Analysis of these figures alone in the context of the entire record, I feel, is sufficient to discredit Respondent's economic defense of Schwartz' discharge. However, on cross-examination Pronyk admitted that in addition to the out- going loads, the volume of office work was also affected by pickup and delivery, mail, and incoming loads. No evidence as to these items was offered by Respondent. 21 The failure to recall her, of course, left the office force with about 14 percent less manpower than it had been operating with before the strike. 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD back to work if he had not filed charges with the Board, that Respondent further discriminated against Schwartz in violation of Section 8(a) (4) of the Act 22 I also find on this record that by his interrogation of the employees about their union activities and his threats to them of discharge if they joined the Union, Pronyk interfered with, restrained, and coerced the employees in violation of Section (a) (1) of the Act.23 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow 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 Respondent discriminatorily discharged and refused to reinstate Sidney Schwartz, I will recommend that the Respondent be ordered to offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered because of the discrimination against him by the payment to him of a sum of money equal to the amount he normally would have earned as wages from the date he was discriminated against to the date of the offer of reinstatement, less his net earnings during said period, with backpay com- puted on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294, and to include interest as held in Isis Plumbing cE Heating Co., 138 NLRB 716. I shall also recommend that the Respondent make available to the Board upon request, payroll and all other records necessary 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 unfair labor practices reasonably may be anticipated. I shall therefore rec- ommend that the Respondent be ordered to cease and desist from infringing in any like or related manner upon rights guaranteed to their 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 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inc., is a labor organization within the meaning of Section 2(5) of the Act. 2. New York Central Transport Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By discriminating against its employees Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (4) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent New York Central Transport Company, its officers, agents , successors , and assigns , shall: 22I would explain any seeming Inconsistency of this latter finding and the conclusion that Schwartz' termination was because of his union activity on the grounds that Respond- ent may have assumed that Schwartz would learn a lesson from his termination and would change his ways if called back, but that by filing the charges he demonstrated the fallacy of this assumption. 23 Whether or not Pronyk in good faith took the position that Schwartz and Well were In positions which excluded them from the protection of the Act Is immaterial. He acted at his peril and was wrong. Cf. Chambers Manufacturing Corporation, 124 NLRB 721, 737. NEW YORK CENTRAL TRANSPORT COMPANY 1153 1. Cease and desist from: (a) Refusing or failing to reinstate or otherwise discriminating against an employee because he has filed charges in any proceeding under the Act. (b) Discouraging membership in and activities on behalf of Local 299, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inc., or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment, except to the extent permitted by the proviso to Section 8(a)(3) of the Act. (c) Unlawfully interrogating employees or threatening them with economic sanctions in connection with their union membership, activity, or adherence. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization , to form labor organizations, to join or assist Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Inc., or any other labor organization, to bargain collectively through representative of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer to Sidney Schwartz immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him, as provided in "The Remedy" section of the Intermediate Report. (b) Preserve and, upon request, make available to the Board or its agents, all payroll and other records, as set forth in "The Remedy" section of the Intermediate Report. (c) Post at its general office in Detroit, Michigan, the attached notice marked "Appendix." 24 Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of 60 days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Seventh Region, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps it has taken to comply herewith 25 24 In the event that this Recommended Order be adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Deci- sion and Order." 25 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director , In writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT refuse or fail to reinstate, nor will we otherwise discriminate against any employee because he has filed charges in a proceeding under the Na- tional Labor Relations Act, as amended, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT discourage membership in or activities on behalf of Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inc., or any other labor organization, by discharging or refusing to reinstate any of our employees or in any other manner discriminating against 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD our employees in regard to their hire or tenure of employment , or any term or condition of employment , except to the extent permitted by the proviso to Section 8(a) (3) of the Act. WE WILL NOT coercively or unlawfully interrogate our employees regarding their union membership, activities, or desires. WE WILL NOT threaten our employees with discharge or other economic sanc- tions to discourage their union affiliation or adherence. WE WILL NOT in any other like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self -organization, to form labor organizations , to join or assist Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inc., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities. WE WILL offer to Sidney Schwartz immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed , and make him whole for any loss of pay suffered as a result of the discrimination against him. All our employees are free to become or remain , or to refrain from becoming or remaining, members of Local 299, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America , Inc., or any other labor organization. NEW YORK CENTRAL TRANSPORT COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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, 501 Book Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. Woodward 3-9330, if they have any question concerning this notice or compliance with its provisions. Braswell Motor Freight Lines, Inc.; Braswell Freight Lines, Inc.; and J. V. Braswell and Teamsters Local Unions 745, 47, 886, 523, 270, 5, 568, 667, and 891, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 16-CA-1648. April 9, 1963 DECISION AND ORDER On January 21, 1963, Trial Examiner George J. Bott issued his Intermediate Report in the above-entitled proceeding, finding that Respondents had not engaged in the alleged unfair labor practices and recommending that the complaint herein be dismissed in its en- tirety, as set forth in the attached, Intermediate Report. Thereafter, the Respondents, the General Counsel, and the Charging Parties filed exceptions to the Intermediate Report and briefs in support of their exceptions. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to . three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. 141 NLRB No. 105.