Trojan Freight Lines, Inc.

542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ers in the salvage department and the power files in the drill press department to the employees of the Employer represented by the Machinists, rather than to employees represented by the Polishers. Our present determination is limited to the controversy which gave rise to this proceeding. In making this determination, we are as- signing the disputed work to the employees in the bargaining unit presently represented by the Machinists, and not to the Machinists or its members. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings of fact and upon the entire record in this case, the Board makes the following Determina- tion of Dispute pursuant to Section 10(k) of the Act: 1. Employees performing grinding work in the Employer's sal- vage department and employees performing grinding in the drill press department are appropriately included in the bargaining unit presently represented by Lodge 1405 of the International Associa- tion of Machinists, AFL-CIO, and not in the bargaining unit now represented by Metal Polishers, Buffers, Platers and Platers' Helpers International Union, Local 39, and are entitled to do the work of grinding in the above-named departments. 2. Metal Polishers, Buffers, Platers and Platers' Helpers Interna- tional Union, Local 39, is not and has not been entitled to force or re- quire Dominion Electric Corporation to assign to Polishers' members, the work of grinding in the salvage and drill press departments. 3. Within 10 days from the date of the Decision and Determina- tion of Dispute, Metal Polishers, Buffers, Platers and Platers' Helpers International Union, Local 39, shall notify the Regional Director for Region 8, in writing, whether or not it will refrain from forcing or requiring Dominion Electric Corporation, by means proscribed by Section 8(b) (4) (D), to assign the work in dispute to its members rather than to the employees of the Employer repre- sented by Lodge 1405 of the International Association of Machinists, AFL-CIO. Trojan Freight Lines, Inc. and Nick Vitantonio. Case No. 8-CA- 3439. December 22, 1964 DECISION AND ORDER On October 1, 1964, Trial Examiner Ramey Donovan issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take 150 NLRB No. 39. TROJAN FREIGHT LINES, INC. 543 certain affirmative action, as set forth in the attached Decision. The General Counsel and Respondent filed exceptions and supporting briefs. The Charging Party filed a brief and thereafter the Re- spondent filed an answering brief to the exceptions and brief of the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Mc- Culloch and Members Fanning and Jenkins]. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications. We find merit in the General Counsel's exception to the failure of the Trial Examiner to find, as alleged in the complaint, that Re- spondent violated Section 8(a) (1) by threatening employees with discharge if they filed grievances with the Union. The Trial Exam- iner found that Harley, one of Respondent's over-the-road drivers, credibly testified that he and one or two other over-the-road drivers, including Finley, were present in October 1963 when Vaccaro, Respondent's terminal manager, in the course of a conversation, stated that he was laying off Vitantonio and Ryan. When asked why, Vaccaro replied that they had had the union man come down. We find that such statements with respect to the discharge of Vitan- tonio and Ryan constituted a threat that similar reprisals would be meted out to any other employees who filed complaints or grievances against Trojan Freight Lines with the Union. By so threatening, Respondent interfered with, restrained, and coerced employees in the exercise of their statutory rights, thereby violating Section 8(a) (1) of the Act. REMEDY Having found that the Respondent, Trojan Freight Lines, Inc., has engaged in unfair labor practices in violation of Section 8(a) (1) and (3) of the Act, we shall order Respondent to cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. In so doing, we sustain the General Coun- sel's exception to the Trial Examiner's recommended formula for computing the backpay of Vitantonio during the period he was laid off. We are persuaded that application of the following formula, urged by the General Counsel, is necessary to insure that Vitantonio will be made whole for the discrimination practice against him : 775-692-65-vol. 150-3 6 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Take Vitantonio's total weekly hours during the 3 months prior to the time when Ryan was hired in June 1963 and determine the per- centage of Vitantonio's hours to the total number of hours worked by all city drivers. Apply this percentage to the total number of hours worked by all the city drivers during the period of layoff to determine Vitantonio's loss of earnings. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order the Order recom- mended by the Trial Examiner and orders that the Respondent, Trojan Freight Lines, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, with the following modifications: Delete paragraph 1(a) thereof and substitute therefor the fol- lowing : "Discouraging legitimate union activity or membership in Truck Drivers Local Union No. 407, International Brotherhood of Teams- ters, or any other labor organization by laying off or discriminating against Nick Vitantonio or any other employee, or by threatening employees with discharge or other reprisals for filing of grievances against Trojan Freight Lines, Inc., with the Union, or in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act." Delete paragraph 2 (a) thereof and substitute therefor the following paragraph : "Pay Nick Vitantonio the wages he would have earned but for the discrimination against him in the period from October 11, 1963, to the date when he was rehired in January 1964, in accordance with the formula described in our Remedy, less his interim earnings. Backpay, with interest at the rate of 6 percent per annum, shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 and Isis Plumbing c6 Heating Co., 138 NLRB 716." The notice shall be amended by deleting the first paragraph and substituting therefor the following : EVE WILL NOT discourage legitimate union activity or mem- bership in Truck Drivers Local Union No. 407, International Brotherhood of Teamsters or any other labor organization by laying off or discriminating against Nick Vitantonio or any other employee, or by threatening employees with discharge or other reprisals for filing of grievances against Trojan Freight Lines, Inc., with the Union. TROJAN FREIGHT LINES, INC. 545 WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under Sec- tion 7 of the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The charge in this case was filed on March 2, 1964 , by Nick Vitantonio, an individ- ual. The complaint by the General Counsel issued under date of April 24, 1964, and the matter was heard before Trial Examiner Ramey Donovan in Cleveland, Ohio, on June 29, 1964. The issue was whether employee Vitantonio had been terminated or laid off in violation of Section 8 (a) (1) and ( 3) of the Act. All parties were repre- sented by counsel in the hearing . The General Counsel and the Respondent filed briefs. Upon the entire record and from observation of the witnesses , I make the following: FINDINGS OF FACT I. JURISDICTIONAL FINDINGS Trojan Freight Lines, Inc., Respondent, is an Ohio corporation with its principal office and place of business in Dayton, Ohio. Respondent also has a freight terminal and office in Indianapolis, Indiana, and in Cleveland, Ohio. Respondent is an inter- state trucking motor carrier and has ICC franchises in Ohio and Indiana. Annually, in the course of its business, Respondent has gross revenues in excess of $500,000, of which an amount in excess of $50,000 is received from transporting goods and materials in interstate commerce. Respondent is engaged in commerce within the meaning of the Act. If. THE LABOR ORGANIZATION INVOLVED Respondent is a party to an area contract with the Teamsters Union. Truck Drivers Local Union No. 407, International Brotherhood of Teamsters, is the local union in Cleveland with whom Respondent has its contractual relations in Cleveland, Ohio, pursuant to the area contract. It is found that the Union is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES Vaccaro has been terminal manager at Respondent's Cleveland terminal for 12 years. In October 1960, Vitantonio was employed as billing clerk and to assist Vaccaro. About the middle of February 1961, Vitantonio was laid off or partially laid off, and continued in Respondent's employ only as a part-time billing clerk. About February 20, 1961, Vaccaro employed Vitantonio as a part-time city driver as well as a billing clerk. In the period from 1961 to June 1963, Vitantonio was at the bottom of the drivers' seniority list at the terminal. There were seven city drivers, including Vitantonio. Pursuant to the union contract, 90 percent of the drivers were guaranteed 40 hours' work or pay per week. In practice, this meant that Vitantonio, as low man on the seniority list, received no guaranteed workweek.' He customarily reported to work at 12 noon unless told not to do so on the previous day. 2 Vitantonio, therefore, was, in effect, on a part-time basis. Ryan was hired as a city driver at the Cleveland terminal on June 3, 1963. There- after, Vitantonio, as No. 7 man on the list of eight, received a guaranteed 40-hour week and Ryan, as low man, worked on a part-time, no-guarantee basis. During the period prior to June 1963 and also thereafter, Vaccaro regularly per- formed some manual work on the loading dock or platform at the terminal. As the salaried manager, Vaccaro received no extra compensation for this work. During the period after Ryan was hired, he and Vitantonio, on a number of occa- sions, discussed among themselves what they considered to be the impropriety of Vaccaro performing work on the dock. Ryan apparently felt that, since he was not 1 Vitantonio referred to his status as that of a 10-percenter. 2 Sorrento, a full-time city driver, testified that his regular hours were 8 a.m. to 4:30 p.m. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receiving 40 hours work a week, his opportunity for more work was being adversely affected by the fact that Vaccaro was performing rank-and-file work. Vitantonio believed that his opportunity for overtime work was also being adversely affected by the manager's work performance. In the latter part of September 1963, Vitantonio went to the Union's office and complained to Kalnicky , the union representative, about the fact that Vaccaro was working on the dock. On Tuesday, October 8, 1963, Kalnicky came to the terminal. According to Vaccaro, Kalnicky informed him that he had heard that Vaccaro was working on the dock and that Vaccaro should discontinue doing so . Vaccaro said that he would stop. Vaccaro testified that prior to Kalnicky 's visit he had been informed by a union member that Vitantonio and Ryan had been complaining to the Union about Vaccaro's working. The witness also testified that he knew that it was Vitantonio who had com- plained to Kalnicky and that Ryan was also involved. Vitantonio testified credibly that on the evening of October 8, after Kalnicky's visit to Vaccaro, the latter informed him that he would be laid off on Friday, October 11. Vaccaro said that someone had gone to the Union about Vaccaro's working on the dock and Vacarro said to Vitantonio , "You should have come to me before doing anything like that." Ryan testified credibly that after Kalnicky had come to the terminal and departed, Vaccaro informed Ryan that he was being laid off that night. Later, Vaccaro told Ryan to come to work "tomorrow," Wednesday, and finish up on Wednes- day. On Wednesday , Vaccaro said to Ryan that he guessed that Ryan knew why he was being laid off. Ryan asked why. Vaccaro replied that Vitantonio had turned Vaccaro in to the Union for working on the dock. Ryan was terminated on October 9 and Vitantonio on October 11. Harley has been employed by Respondent as an over-the-road driver for 14 years. He works out of Respondent's terminal in Dayton and drives to the Cleveland terminal and other points. Harley testified that in October 1963 he and one or two other over-the-road drivers, including Finley, were sitting in the Cleveland terminal office. Vaccaro, in the course of a conversation, stated that he was laying off Vitantonio and Ryan . When asked why, Vaccaro replied that "they" had had the union man come down and Vaccaro had thereafter informed Vitantonio and Ryan that if that is the way they felt he was laying them off. Finley substantially corroborates Harley. Vaccaro denies that he ever said that he had laid off Vitantonio because he had complained to the Union. However, Vaccaro admits that on the occasion of Kalnicky's visit, he decided to lay off the two men. He testified that he, Vaccaro, felt hurt because the men had gone to the Union about Vaccaro's working on the dock. Vaccaro stated that he had been keeping the two men on the job and "I felt bad being as they wanted to complain to the Union about it, and I didn 't need them, why should I keep them." In the light of Vaccaro's own testimony, there can be no doubt that Vitantonio would not have been laid off on October 11 but for the fact that he had complained to the Union about Vaccaro's working. Since Vitantonio's action of going to the Union was protected under Section 7 of the Act , the layoff on October 11 was in viola- tion of Section 8 (a) (1) and ( 3) of the Act .3 It is Respondent's defense that Vitantonio was laid off for business or economic reasons. Donahue, executive vice president of Respondent , testified that, in September 1963, he observed that costs of the Cleveland operation were high in comparison with the Dayton and Indianapolis operations . As a result of the foregoing , Donahue states that he instructed General Manager Martinsdale to direct Vaccaro to reduce costs in Cleveland. According to Donahue, reducing costs would entail a layoff. Donahue did not indicate to Martinsdale either the names or the number of personnel to be affected by the desired move to reduce costs. Vaccaro testified that in September 1963 Martinsdale told him "that we have to start cutting corners a little here and there and, if it would help, to reduce the working force." Vaccaro replied that he "would like to hang on to his personnel for the time being." The witness, when asked what Martinsdale then said , observed that Martins- dale "tends to go along with me on most of my decisions. He is in Dayton and I am up here in Cleveland. I comply with most of his requests." I am of the opinion that Donahue's instruction to Martinsdale was a general instruc- tion to have Vaccaro, in Cleveland, reduce operating costs at the Cleveland terminal. 8 Ryan did not file a charge and the complaint is limited to Vitantonio. TROJAN FREIGHT LINES, INC. 547 Martinsdale, in turn, spoke to Vaccaro in general terms about "cutting corners a little here and there and, if it would help, to reduce the working force." The substance of Martinsdale's word to Vaccaro was to reduce costs, leaving the details or the method thereof up to the discretion of Vaccaro, as an experienced manager who was closest to his own operation .4 Vaccaro testified that the reason he had been working on the dock was to protect or preserve the jobs of Ryan and Vitantonio. As explained by Vaccaro at the hearing, his own performance of dockwork helped to reduce costs principally by reducing overtime pay, since he only received his regular salary as manager and received noth- ing additional for working manually. In short, Vaccaro was under instruction to reduce costs and he was doing so by working as aforedescribed. Since the payroll and paychecks and the necessary work records of employees were made up and maintained in the Dayton office for Cleveland and other terminals, Martinsdale and Donahue were aware of the precise employment situation in Cleve- land. If Vaccaro had received orders to lay off Vitantonio and Ryan several weeks before their actual layoff in October, it is apparent that Dayton was aware that they were still on the payroll. As indicated, I believe that Vaccaro had been told to reduce costs, with the method being left in his hands. Vaccaro was meeting the situation by working on the dock himself and by generally watching such cost items as overtime. He also testified that he hoped that business would improve and thus obviate a layoff. How long this situation would have continued we do not know and Respondent and Vaccaro have not told us. Vaccaro did testify, however, that the two men would not have been laid off when they were and that they were laid off at that time because of the complaint to the Union about Vaccaro's working.5 'Both Donahue and Vaccaro had been called as witnesses by Respondent. When not responding to leading questions , their testimony was as described. Thus, Donahue testified that his observations of the Cleveland books and records led him to the con- clusion that costs should be lowered and he passed this instruction to Martinsdale for Vaccaro. Counsel then asked: Q. To reduce the working force in Cleveland? A. Q. A. Q A. Q. A. Yes. Did you tell him the number of employees Not particularly , I said to reduce the costs. You said to reduce the costs? That is the normal procedure. that ought to be laid off? By reducing the cost this meant a layoff, is that correct? Yes, that's right. Vaccaro also testified , as described , to a rather general instruction to reduce costs, with the details or method being left to Vaccaro ' s discretion . Later, counsel asked his witness, Vaccaro• Q. Did you again get a request from Dayton to cut your personnel? (Objection on the grounds of leading ) Q. Tell us whether or not you got another request from Dayton to reduce this personnel? A. Yes, I did. On redirect examination of his witness , Vocarro, counsel asked: Q. . . . Were you or were you not under specific instructions from Dayton to reduce your working force by two men? A. Yes, I was. Up to this point Vaccaro had said nothing about having received instructions to reduce his force by two men. 6 The witness also testified , without saying when, that the two men would have been laid off but not on the particular occasion when they were laid off He further stated that "a couple of weeks" before the layoff he told Ryan and Vitantonio "that business was very slow at the time and I told them we would probably have to make a cut . . . Vitantonio and Ryan credibly denied having been told of an impending layoff or lack of work. An- other driver , Sorrento , called by Respondent, testified that he sat around a good deal in September because there was little work available. He stated that there was a little more work in October . It is not clear why Vaccaro was working on the dock if the work on hand was at a low point and if his subordinates had insufficient work. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I do not doubt that Respondent watches its costs of operation, including its labor costs, and that it is interested in net income and profit. There is in evidence some economic data prepared by Respondent that embraces the months from June 1963 to January 1964, inclusive. Respondent has offered no information on gross or net income respecting the Cleveland operation so we are confined to such items as total weight handled per month at its Cleveland, Dayton, and Indianapolis terminals; tons per man-hour; labor hours; labor costs; cost per hundredweight; labor costs per man- hour. It is not clear from the testimony of Vice President Donahue and Respondent's cost accountant, Beckman, what items Respondent considered most significant in appraising the Cleveland operation. Donahue spoke of the importance of the profit picture but neither his testimony nor the economic data projects a profit picture or even a net operating income picture for our appraisal.6 Without being told Respondent's position with respect to the significance of various economic items, we can only express certain observations on these various figures prepared by Respondent. There appears to be little purpose served by comparing Cleveland with Dayton and the Indianapolis operations since the figures show differ- ences at three locations at all times, e.g., total weight handled at Cleveland, Indianapo- lis, and Dayton in June 1963 was 4,311,794; 9,419,235; 13,730,269, respectively. In October 1963 the figures were: 4,403,965; 9,389,078; 13,859,887. For December 1963 the figures were: 3,925,759; 8,124,022; 11,691,961. During the period for which we have information the labor costs varied and were lower in Cleveland in September 1963 than in July 1963 on a comparative basis.7 For the most part, the comparison that indicates the most materiality is that of the figures for the Cleveland operation throughout the entire period for which we have data. Labor cost per man-hour at Cleveland was lowest in August 1963 when the figure was $3.24. The next lowest month was September 1963, at $3.25. This was the month, when, according to Respondent, it considered the Cleveland costs of operation to be such that a reduction in costs was required. However, in June 1963, the Cleve- land figure was $3.27 and that was the month when Respondent hired an eighth employee, Ryan. July also, at $3.36, was a higher cost period than September or October. Although the figure for October 1963 was $3.31, the greater part of that month was a period when neither Ryan nor Vitantonio was employed, having been laid off on October 9 and 11, respectively. Moreover, the labor cost per man-hour rose sharply to $3.45 in each of the next 2 months of November and December 1963. This rise in labor cost per man-hour was evidently attributable to a pronounced increase in overtime after the layoffs. Thus, in August and September 1963, the overtime figures were 85 and 96, respectively. The figure rose to 159 in October when Vaccaro ceased working on the dock and when the work force was reduced by two. Overtime rose to 250 and 252 in November and December 1963. Since overtime was paid for at time-and-a-half regular rates it was a costly item. It was overtime that Vaccaro was allegedly so much concerned about as a cost item. Yet overtime rose sharply after the two men were laid off in October. Since Respondent's figures reflect direct labor costs and not fringe benefits and fringe costs, it would seem that a close relationship would exist between labor cost per man-hour and total labor costs. Respondent's figures in these categories tend to bear out this relationship except that in November 1963, labor cost per man-hour was up to a high of $3.45 but total labor costs dropped to $4,175. The figures for October, during most of which month Ryan and Vitantonio were not employed, were $3.31 and $4,593. For september, the month when Respondent asserts it gave instructions for a reduction of costs, the figures were comparatively very good, $3.25 and $4,123. 61 regard the economic defense as an affirmative defense of Respondent , with the burden resting on Respondent. a Labor costs on a comparative basis: Labor costs Dayton Indian- apolis Cleve- land Labor cost per man-hour Dayton Indian- apolis Cleve- land $4,347 $3 31 7/63--------------------------- $9,619 $5,710 4,123 3.29 9/63--------------------------- 9,103 5,506 $3 23 3 33 $3.36 3 25 TROJAN FREIGHT LINES, INC. 549 Although November was as indicated, both December and January showed high labor cost per man-hour and high total labor cost. January 1964, in fact showed the highest overtime, 259; highest total labor cost, $4,626; and high labor cost per man- hour, $3.45.8 Whatever else may be said of the foregoing figures, I am not persuaded that a high amount of overtime is generally a cheaper way to operate than to employ additional help at straight time. Thus, Vitantonio would, on a normal 40-hour basis, work approximately 160 hours a month. In November and December, Respondent's Cleve- land force, less Vitantonio (and Ryan), had 250 and 252 hours of overtime. Fringe costs, such as health and welfare fund payments and pensions, would still not eliminate the difference in costs .9 Vaccaro, as we have seen, testified that he worked on the dock in order to hold down overtime and with the hope that business meanwhile might improve. The implication (and the fact) was clear that, under the foregoing circumstances, Vaccaro was con- tinuing to employ Vitantonio and Ryan. We have no statistics on whether business improved or not, except the figures on total weight of freight handled at the terminal. While total weight of freight may not be the best criteria of business conditions, it is the only figure that we have in this area. From July 1963 through November 1963, total weight handled at Cleveland steadily increased and was higher in September than in August and higher in October than in September.10 Conclusions As previously found, I am satisfied that Vitantonio was laid off when he was, on October 11, because of his complaint to the Union about Vaccaro. This was a viola- tion of Section 8 (a) (1) and (3) of the Act. Although Respondent did not make its defense on such a ground, the only remaining question was whether Vitantonio would have been laid off because of business conditions at some later date, even absent the discrimination against him. For this reason, Respondent's economic defense has been examined, as described above. On the record in this case, the economic justification for Vitantonio's layoff is less than convincing. However, Ryan was laid off and is not alleged to be a discriminatee and no finding has been made regarding Ryan. When Ryan was laid off on October 9, Vitantonio became the low man on the seniority list and hence was no longer guaran- teed, under the contract, 40 hours a week. The fairest approach appears to be to consider that, but for the illegal discrimination against him, Vitantonio would have continued as a nonguaranteed driver through October, November, and December, 1963. This was Vitantonio's status prior to June 1963 when Ryan was hired.1' 8 Overtime and costs per man-hour: Labor costs Overtime Labor costs per man-hour 6/63---------------------------------------------------- $4, 116 108 $3 27 7/63---------------------------------------------------- 4,347 112 3 36 8/63---------------------------------------------------- 4,036 85 3 24 9/63---------------------------------------------------- 4,123 96 3 25 10/63--------------------------------------------------- 4,593 159 3 31 11/63---------------------------------------------------- 4,175 250 3 45 12/63--------------------------------------------------- 4, 232 252 3.45 1/64----------------------------------------------------- 4, 626 259 3 45 e Temporarily, after a layoff of two men, the productivity of the remaining employees may spurt and thus compensate costwise for the increased overtime necessitated. But a high amount of overtime, as the figures for December and January show, tends to raise cost. Nor do we have the situation of an employer with experienced employees deciding to work them overtime rather than to employ additional new employees at straight-time rates 10 Total weight handled in Cleveland: 7/63 -------------------- 3,459,128 10/63 -------------------- 4,403,965 8/63-------------------- 3,570,890 11/63---------- --------- 4,583,963 9/63 -------------------- 3,968,257 11 Since Vitantonio was rehired in January 1964 and has continued thereafter on a nonguaranteed basis, the cutoff date would be the date of rehire. No new employee has been hired. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to the computation of what Vitantonio's earnings would have been during the aforesaid period, I believe that the following formula will be equitable. Take Vitan- tonio's total weekly earnings during the 3 months prior to the time when Ryan was hired in June 1963, and also take Vitantonio's total weekly earnings for the 3 months since he was rehired in January 1964, and arrive at an average weekly income figure.12 Use this average weekly earnings figure in computing backpay for the period from October 11, 1963, to the date of Vitantonio's rehire in January 1964. IV. THE REMEDY Since Respondent has rehired Vitantonio, the remedy will be limited to the posting of a notice and the payment of backpay. The formula for the computation of backpay has been described above. Interest in the amount due, less deductions of intermediate earnings, is recommended.13 CONCLUSIONS OF LAW By laying off Nick Vitantonio on October 11, 1963, Respondent engaged in discrimi- nation to discourage membership and activity in the Union, thereby engaging in unfair labor practices proscribed by Section 8(a) (1) and (3) of the Act. The aforesaid unfair labor practices affect commerce within the meaning of the Act. RECOMMENDED ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that Respondent, Trojan Freight Lines, Inc., its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from discouraging legitimate union activity or membership in Truck Drivers Local Union No. 407, International Brotherhood of Teamsters, or any other labor organization by laying off or discriminating against Nick Vitantonio or any other employee or in any related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which we find will effectuate the purposes of the Act: (a) Pay Nick Vitantonio the wageshe would have earned but for the discrimination against him in the period from October 11, 1963, to the date when he was rehired in January 1964, in accordance with the formula described in this Decision, less his intermediate earnings, and with the said backpay computed on a quarterly basis,14 together with interest thereon at the rate of 6 percent per annum.15 (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post in its terminal and office in Cleveland, Ohio, copies of the attached notice marked "Appendix." Copies of said notice, to be furnished by the Regional Director for Region 8, shall, after being duly signed by Respondent's representative, be posted by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith. 12 During both these periods Vitantonto was a regular part-time employee on a non- guaranteed basis. is There Is evidence that on a few occasions during period of the layoff Respondent offered Vitantonio a single day's work. Vitantonio did accept these offers on some occasions and at other times he was not at home or could not secure a babysitter, his wife having secured a job during the period. This is part of the computation and com- pliance picture. 14 F. W. Woolworth Company, 90 NLRB 289. 15 Isis Plumbing cf Heating Co., 138 NLRB 716. BARTELL BROADCASTERS, INC. APPENDIX 551 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 National Labor Rela- tions Act, as amended, we hereby give notice that: WE WILL NOT discourage legitimate union activity or membership in Truck Drivers Local Union No. 407, International Brotherhood of Teamsters or any other labor organization by laying off or discriminating against Nick Vitantonio or any other employee because an employee exercises his right as guaranteed in the National Labor Relations Act. WE WILL pay to Nick Vitantonio the wages he lost by reason of his illegal layoff in October 1963. TROJAN FREIGHT LINES, INC., 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, 720 Bulk- ley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465, if they have any question concerning this notice or compliance with its provisions. Bartell Broadcasters, Inc. and Radio & Television Broadcast Engineers, Local No. 715, International Brotherhood of Elec- trical Workers. Case No. 30-CA-31 (formerly 13-CA-6067). December 22, 1964 DECISION AND ORDER On August 3, 1964, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exami- ner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision with a supporting brief. The General Counsel filed a brief in answer to the Respondent's exceptions and brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Mc- Culloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 1 As the record, including the exceptions and briefs, adequately sets forth the issues and the positions of the parties, the Respondent's request for oral argument is hereby denied. 150 NLRB No. 28.