New York Central Transport Co.

452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees or in the social circumstances under which the employees met. For these reasons I reject Respondent's defenses to its admitted refusal to bargain. C. Conclusions 1. The refusal to bargain Based upon the foregoing I would find and conclude that on April 3, 1963, an uncoerced majority of Respondent's employees in a bargaining unit conceded to be appropriate designated the Union as their majority representative, that on April 4- a proper demand for recognition and bargaining was made upon Respondent by representatives of the Union, that at that time Respondent recognized the Union's majority status and agreed to bargain with it, and that thereafter, and particularly by letters of April 8 and 12, Respondent has consistently refused to bargain with the Union as representative of its employees. It is well established that such conduct constitutes a clear violation of Section 8(a)(1) and (5) of the Act and I so conclude and find here. 2. Interference, restraint, and coercion Respondent insists that Briggs' admitted interrogation of its employees as to, their union membership was a spontaneous result of its surprise upon learning that a majority of them had joined . This, it is claimed, is a permissive form of activity under the Board 's Blue Flash 9 analysis of employee interrogation , wherein it was held that questioning conducted under circumstances which do not carry an implied threat of reprisal is not unlawful . I find merit in Respondent's position. Although I have found that Respondent has unlawfully refused to bargain with the Union , having learned by questioning its employees that each had signed a union authorization card , there is no substantial proof of union animus on the part of Respondent's principal partner, or any other officer or supervisor , at the time the questioning concededly took place . In view of this condition I would conclude that the inquiry directed to the employees , limited as it was to their joining of the Union, does not constitute interference, restraint, or coercion.l° While it was evident to me that each employee testifying before me consciously equivocated and hedged to a fault , I cannot, without evidence other than that which was gleaned by my observation of these witnesses , conclude that they had been actually interfered with in the exercise of their statutory organizational rights. Certainly, then, I cannot conclude that someone might have intimidated them. Such being the state of my findings, to now translate the conduct of these witnesses as they testified on July 3 into evidence of Briggs' hidden motivation for questioning them on April 3 would stretch the doctrine of nunc pro tunc to the breaking point. I will therefore recommend that so much of the complaint as alleges that Respond, ent's interrogation of employees constitutes a violation of the Act be dismissed. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action which I find will effectuate the policies of the Act. [Recommended Order omitted from publication.] e Blue Flash Express, Inc., 109 NLRB 591. 10Mitchell Standard Corporation, 140 NLRB 496. New York Central Transport Company and Sidney Schwartz. Case No. 7-CA-3344. March 20, 1964. SECOND SUPPLEMENTAL DECISION AND ORDER On April 9, 1963, the Board issued its Supplemental Decision and Order in this case' finding that Respondent had discriminatorily dis- 1141 NLRB 1144. 146 NLRB No. 56. NEW YORK CENTRAL TRANSPORT COMPANY 453 charged Sidney Schwartz on August 31, 1961, and had thereafter un- lawfully refused reinstatement in violation of Section 8(a) (3) and (4) and ordering the Respondent to offer the discriminates immediate reinstatement and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him with interest in accordance with the Board's decision in Isis Plumbing cf Heating Co., 138 NLRB 716. On August 7, 1963, the Board's Regional Director for the Seventh Region issued and served on the parties 'a backpay specification and notice of hearing alleging among other matters that the backpay pe- riod during which Sidney Schwartz suffered loss of pay commenced on September 1, 1961, and ended on May 1, 1963, and that there was due and owing Sidney Schwartz the net amount of $1,641.99. On August 23, Respondent filed its answer thereto and on September 27 a supple- mental answer. On October 7, 1963, a hearing was held before Trial Examiner Wellington A. Gillis for the purpose of determining the amount of backpay due the discharged employee. On December 26, 1963, the Trial Examiner issued his Supplemental Decision, finding, as set forth in the attached Trial Examiner's Supplemental Decision, that the Respondent was obligated to make whole Sidney Schwartz in the amount of $1,641.99 and recommending that the Respondent be ordered to pay such sums, less tax withholding required by Federal and State laws, but with interest at 6 percent per annum in accord- ance with the Board's Supplemental Decision and Order. Thereafter, Respondent filed exceptions to the Trial Examiner's Supplemental De- cision 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 Leedom, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Supplemental Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the basis of this Supplemental Decision and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, New York Central Transport Com- pany, Detroit, Michigan, its officers, agents, successors, and assigns; shall pay to Sidney Schwartz as net backpay, herein determined to be due, the amount set forth in the section of the Trial Examiner's Sup- plemental Decision entitled "Conclusions and Recommendations." 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE This supplemental proceeding is concerned solely with a determination as to the amount of backpay due Sidney Schwartz under the Board's Supplemental Decision and Order,' dated April 9, 1963, wherein it was found that the Respondent had discriminatorily discharged Schwartz on August 31, 1961, and had thereafter un- lawfully refused to effect his reinstatement, in violation of Section 8(a)(3) and (4) of the National Labor Relations Act, as amended (61 Stat. 136), hereinafter referred to as the Act, and directed that the Respondent, inter alia, offer Schwartz immediate reinstatement and make him whole for any loss of earnings he may have suffered as a result of the unlawful discrimination. Subsequent to the issuance of the Board's Order, the Regional Director of the Seventh Region, on behalf of the Board, issued on August 7, 1963, a backpay specification and notice of hearing. On August 23 and September 26, 1963, respec- tively, the Respondent filed an answer and a supplemental answer. Pursuant to notice, a hearing was held in Detroit, Michigan, on October 7, 1963, before Trial Examiner Wellington A. Gillis, at which both parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine wit- nesses, to introduce evidence pertinent to the issues, and to engage in argument. A timely brief was subsequently filed by the General Counsel. Upon the entire record in this case, and from my observation of the witness, I make the following: FINDINGS AND CONCLUSIONS 1. THE PLEADINGS AND RELATED MOTIONS The backpay specification, as issued by the Regional Director on August 7, 1963, appears to fully satisfy all requirements of Section 102.53 of the Board's Rules and Regulations in that it specifically and in detail shows, for Sidney Schwartz, the backpay period broken down by calendar quarters, the specific figures and basis of computation as to gross backpay and interim earnings, the net backpay due, and other pertinent information. Subsequent to the Respondent's initial answer, timely filed on August 20, 1963,2 the General Counsel filed a motion in which it asserted that the Respondent's answer failed to meet the Board' s requirements as to sufficiency and requested that portions of the Respondent's answer be deemed to be admitted to be true without the taking of evidence? Following the issuance of an order to show cause why said motion should not be granted and a reply by the Respondent to the order to show cause, Trial Examiner Stanley Gilbert, on September 19, 1963, issued an order, finding no merit to the Respondent's contentions set forth in its reply, other than that concerning the mat- ter of interim earnings, but granted the Respondent until September 27, 1963, to file an amended answer, specifically requiring the Respondent to state whether any change in circumstances had occurred subsequent to Schwartz' discharge whereby job opportunities no longer were available to Schwartz, and, if so, to satisfy the Board's requirements by rendering an explanation of the change .4 Trial Examiner i New York Central Transport Company, 141 NLRB 1144 2 Apart from a second affirmative defense concerning an alleged payment by the Respond- ent to Schwartz during the course of the unfair labor practice proceeding (which was to become the only real issue during the instant hearing), the Respondent's only explanation In its initial answer for its disagreement with the backpay specification is the assertion, set forth as a first affirmative defense, "That from and after the termination of employ- ment of Sidney Schwartz by the Respondent and continuing to data, there were no job opportunities available at the Respondent for Sidney Schwartz." 3 The General Counsel's motion, in this regard, referred to allegation I, which sets forth the backpay period as September 1, 1961, through May 1, 1963• allegation II(A), which prescribes the formula for computing the quarterly gross backpay ; and allega- tion II(C,), which establishes the net backpay formula, as well as the computations as to quarterly gross backpay, quarterly interim earnings, and total net hackpay. 'The Board, in the earlier unfair labor practice proceeding, in adopting the Supple- mental Intermediate Report and Recommended Order of the Trial Examiner, found that the Respondent had unlawfully discharged Schwartz on August 31, 1961, because of his union activity. The Respondent, in asserting that Schwartz' discharge was caused solely by a lack of work, had relied mainly upon the decrease in the number of outbound loads and a corresponding decrease in the number of driver personnel, coupled with the assertion that, after the termination of Schwartz, certain of the office functions had been eliminated or taken over by other employees The Board, in finding the violation, considered and rejected the above economic contentions of the Respondent NEW YORK CENTRAL TRANSPORT COMPANY 455 Gilbert's order, which reflects the fact that the issue as to a job opportunity for Schwartz at the time of his discharge had been litigated and resolved against the Respondent by the Board, contains the following language: Although Respondent asserts that the lack of job opportunities continued throughout the entire period alleged in the specification, nevertheless Respond- ent has failed to set forth in its answer whether any change in circumstances occurred which altered the factual situation based upon which it was concluded [by the Board] that job opportunities were available to Schwartz.' Respondent is hereby given leave until September 27, 1963, to file an amendment to its answer setting forth whether any such change occurred. Such amendment, if filed, shall include an explanation of the change, as well as the number of "out- bound loads" per month. In the event such an amendment is not timely filed, Respondent's answer will be deemed to have admitted that the premise for com- puting the gross backpay and the computations thereof are appropriate, and no evidence need be submitted in support of the allegations in paragraph I and paragraph II(A) of the specification, or in support of the amounts of gross backpay set forth in paragraph II(C) of the specification. Nothing contained in this order should be construed as limiting Respondent's Tight to introduce evidence with respect to the amount of Schwartz' interim earnings or his availability for employment during any quarter. 1 The number of "outbound loads" per month appears to have been a governing circumstance in the Board's Decision. At the outset of the instant hearing, counsel `for the General Counsel requested from me a final ruling on his prehearing motion, contending that the Respondent's supplemental answer, timely filed on September 27, 1963, did not comply with the mandates of Trial Examiner Gilbert's order or with the requirements prescribed by Section 102.54(b) of the Board's Rules and Regulations. Upon a perusal of the order and the Respondent's answer and supplemental answer, and after permit- ting counsel for both parties extensively to argue their respective positions, I ruled that the Respondent's answer, as amended, was not sufficient under the Board's Rules and Regulations,5 that, accordingly, the allegations contained in section I, section II(A), and the gross backpay computations contained in section II(c) of the specification, are deemed to be admitted as true, and indicated that I would re- ceive evidence only with respect to Schwartz' interim earnings, his availability for employment, and the second affirmative defense concerning an alleged payment to Schwartz by the Respondent. II. THE ISSUE-SECOND AFFIRMATIVE DEFENSE Based upon this ruling, and a further ruling by which I refused to permit the Respondent to amend its supplemental answer, the General Counsel, having in- troduced into evidence the backpay specification, rested his case. At this point, the Respondent, which introduced no evidence to dispute the accuracy of the backpay specification as to the computation of interim earnings or the resultant net backpay, proffered evidence in support of its second affirma- tive defense, by which it asserts "That during the course of the proceedings before the National Labor Relations Board the Respondent paid Sidney Schwartz the s The supplemental answer, which was exclusively confined to supplementing the first affirmative defense contained in the initial answer, (a) sets forth additional figures as to "outbound shipments," but does not attempt to explain the significance of the figures as to their import on the nonavailability of a job for Schwartz ; (b) asserts that no one was ever hired to replace Schwartz ; (c) alleges that no one was hired for the dispatcher's office (where Schwartz had been employed) until February 1963; and (d) asserts that any duties formerly performed by Schwartz were, subsequent to his discharge, performed by remaining personnel The primary basis for ruling that the Respondent's supplemental answer did not conform to the requirements of Section 102 54(b), and thus, requiring the action above indicated as to the pertinent allegations of the backpay specification under Section 102 54(c), is that, even assuming, arguendo, that the statements proffered by the Respondent in its supplemental answer were tiue, while, perhaps, supporting the proposition that no job was available to Schwartz during the backpay period, they do not, by themselves, (1) constitute an explanation as to the reason that no job was made avail- able to Schwartz, and (2) in any manner conform to the requirement of Trial Examiner Gilbert's order that the Respondent show and explain whether any change in circum- stances occurred after September 1, 1961, concerning job opportunities for Schwartz. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sum' of Six Hundred ($600.00) Dollars as and for complete settlement of any and all claims which Sidney Schwartz may have had against the Respondent by reason of his termination of employment by the Respondent." - As to this matter, the facts, as developed by the record evidence, disclose that after the close of the unfair labor practice hearing but prior to the issuance-of the initial Intermediate Report,6 Schwartz was contacted by one John Bridge, pursuant to which Schwartz and Bridge met at the Brass Rail in downtown Detroit. Accord- ing to the unrefuted testimony of Schwartz, the only witness to appear for either party, Bridge commenced the conversation by telling Schwartz that he was not representing the Company, but "that he wanted to see this thing settled. . Bridge advised Schwartz that his case would come under the Railway Act rather than the National Labor Relations Act, and that he "would get nothing." He also apprised Schwartz that Pronyk (Respondent's top official involved in the unfair labor practice case) was considering filing a libel suit against Schwartz because of a letter Schwartz had written. Bridge then told Schwartz that if he would sign a letter withdrawing his unfair labor practice charges, Pronyk would refrain from filing a libel suit, that Bridge would give him "a signed paper from Mr. Pronyk" to this effect, and that Schwartz would be paid $500. After discussing the matter with his wife, because of their poor financial status with outstanding bills totaling some $562 Schwartz called Bridge and told him that he had decided to accept Bridge's offer if he would raise the amount to $600. Bridge, notwithstand- ing his earlier disclaimer of representing the Respondent, replied that he would have to talk with the Company.? The following day, May 16, 1962, after Bridge had returned Schwartz', telephone call indicating that "$600 was okay," Schwartz and Bridge met again at the Brass Rail, at which time Bridge produced a typed letter, dated that day and addressed to Regional Director Thomas Roumell of the Seventh Regional Office, requesting the withdrawal of the unfair labor practice charges .8 Schwartz signed the letter, and, in return, received from Bridge a check, dated May 16, 1962, for $600, signed by "John Bridge, Treasurer, Canadian Tran Rail System, Limited." Subsequently, the letter was mailed by Bridge and the check was deposited to the joint account of Schwartz and his wife. Approximately a week later, because jurisdiction of the unfair labor practice proceeding was then in the hands of the Trial Examiner, Bridge supplied Schwartz with another prepared letter dated May 23, 1962, addressed to Trial Examiner Dixon, which Schwartz signed, requesting that his case against the Respondent be withdrawn.9 Schwartz's request was subsequently denied. The Respondent, as an affirmative defense, contends that such payment was in the nature of a settlement between the Respondent and Schwartz, that it operates as a general release, and that, accordingly, no backpay is due and owing. In the al- ternative, the Respondent asserts that the $600 should be considered an offset against any net backpay determination . The General Counsel takes the position, first, that the evidence fails to disclose that the Respondent made any payment to Schwartz, and, secondly, assuming arguendo, an agency relationship between Bridge and the Respondent, the $600 received by Schwartz should not be applied toward the net backpay amount. 9 The first Intermediate Report issued by Trial Examiner Eugene Dixon on June 29, 1962, recommended that the complaint be dismissed on the ground that the matter properly came under the jurisdiction of the Railway Labor Act, which is enforced by the National Mediation Board. The Board , on September 28, 1962, ruled to the contrary, and the case was remanded for a determination on the merits . New York Central Transport Company, 138 NLRB 1325 7 Bridge did not name New York Central Transport Company, but Schwartz testified that he took it for granted that Bridge was referring to the Respondent Company. O This letter, which does not allude to the above transaction between Bridge and Schwartz in any way , reads as follows This is to inform you that I withdraw all claims of any kind whatsoever that have been filed with the National Labor Relations Board against the New York Central Transport Company, Incorporated . Will you kindly acknowledge the receipt of the request in concurance [ sic] and notify the company 's attorneys, Zelby & Burstein, 160 Broadway , New York City. Thank you. Very truly yours, SIDNEY- SCHWARTZ. This letter read simply, "I would like to request to withdraw my cace, Case No. 7-CA-3344, against the New York Central Transport Company." NORTHWESTERN PUBLISHING COMPANY 457 Either assertion relied upon by the Respondent, to be accorded merit, must be premised upon a finding that Bridge, in privately negotiating with Schwartz as above recited, was acting for and on behalf of the Respondent, the New York Central Transport Company. The burden of establishing the validity of this premise, such constituting a partof an affirmative defense, rests upon the Respondent. I find that the record does not support such a finding and that , accordingly, the Respondent has failed to meet its burden. Simply stated, the evidence shows merely that a person , unknown to Schwartz, induced him to attempt to withdraw his charges against the Respondent in return for a check for $600 . Other than the fact that Pronyk's name was used by Bridge as a partial inducement to Schwartz ,1° and the contrary inference which might otherwise be drawn from the fact that the subject unfair labor practice charges in- volved the Respondent, there appears to be no real evidence linking the Respond- ent with the $600 payment to Schwartz . Thus, the record does not indicate, nor did the Respondent attempt to show that : (a) Bridge was even known to the Respondent, much less that, in dealing with Schwartz, he was acting for the Re- spondent at the latter's request ; (b) at the time of the dealings between Bridge and Schwartz, the Respondent was aware of the attempt to induce Schwartz to withdraw the charges or that it subsequently condoned the transaction ; and (c) the Canadian Tran Rail System, Ltd., upon whose account the check was drawn, is associated with or in any way connected with the Respondent . For some unexplained reason, the Respondent, upon whom the burden rests of proving its affirmative defense, chose not to produce Bridge, or any official of the Respondent Company, as a witness at the hearing in an attempt to prove the existence of an agency relation- ship between Bridge and the Respondent. Thus, without attempting to discuss the many ramifications of this type transac- tion and the effect which might otherwise be accorded it,11 it would appear that, under these circumstances, the Respondent is estopped to assert the proposition that it has fulfilled its backpay obligation or any part of it to Schwartz. III. CONCLUSIONS AND RECOMMENDATIONS Having found without merit the Respondent's position as to its second affirma- tive defense, upon the basis of the foregoing findings, and upon the entire record in this case , I hereby adopt in full the backpay specification as submitted by the General Counsel, and conclude that the obligations of the Respondent to make whole Sidney Schwartz in accordance with the Board's Order will be discharged by its payment to Sidney Schwartz of the amount of $ 1,641 .99, less the tax with- holding required by Federal and State laws. It is recommended that the Board adopt the foregoing findings and conclusions and order the Respondent to pay to Sidney Schwartz the amount above set forth. it is further recommended that the above adjudicated indebtedness bear interest at 6 percent per annum from the date of this adjudication until paid. Isis Plumbing & Heating Co ., 138 NLRB 716. 11 There is no evidence that Schwartz ever received the promised Pronyk document per- taining to the threatened libel action. "in view of my finding that the Respondent failed to prove that it made payment to Schwartz , I deem it unnecessary to reach or pass upon the other arguments asserted by the parties. Northwestern Publishing Company and Chauffeurs, Teamsters and Helpers, Local No. 26, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. C, ase No. 1.3-CA-5083. March 23, 1964 SUPPLEMENTAL DECISION AND ORDER Northwestern Publishing Company, the Respondent herein, is a publisher of a newspaper in Danville, Illinois. In January 1962, Chauffeurs, Teamsters and Helpers , Local No. 26, the Union herein, 146 NLRB No. 59.