Bi-State Warehousing, Inc.

608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bi-State Warehousing, Inc., and Associated Shippers, Inc. andHerbert J. Schnell, Jr. Case 14-CA-5916 August 12, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On 'April 14,- 1971, Trial Examiner Samuel Ross issued his ' Decision' in the above-entitled proceeding, finding that the Respondents had -engaged in and were engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take-certain affirmative action, as set' forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed exceptions to the Trial Examinees Decision together with a supporting brief, and the General Counsel filed cross-exceptions and a support- ing brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, as modified herein. The General Counsel further excepts to the Trial Examiner's failure to find that the reasons given by Respondents' foreman, Podrasky, to Charging Party Schnell concerning the reasons for his discharge constituted a violation of Section 8(a)(1) of the Act. We find merit in this exception, as the Trial Examiner found upon the credited testimony of Schnell, at the time of his notice of discharge, Schnell was informed by Podrasky, who was repeating instructions given to him by Respondents' general manager, Wamser, that "for me not to worry about the money, that first I had caused a work stoppage, and now I want my money, and I am a troublemaker, [and] tell him not to report for work anymore." This reference to Schnell's protected activity as a reason for the discharge violated Section 8(a)(1) of the Act. We amend the Trial Examiner's Conclusions of Law by inserting a new paragraph 5, renumbering the present paragraph 5 as 6, the new paragraph to read as follows: 5. By stating to employee Schnell that one of the reasons for his discharge was because of his participa- tion in protected, concerted activities, Respondents 192 NLRB No. 84 have engaged in and are engaging- in unfair labor practices within the meaning of Section 8(a)(1) of the Act. ORDER Pursuant to Section 10(c)T Of the National Labor Relations Act, as amended; the National . Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondents, Bi-State' Warehousing, Inc., and Asso- ciated ' Shipper`s, Inc., East ' St. Louis, ' Illinois, their officers,' agents, successors, and assigns, shall take the action set forth in the TriajExaminer's recommended Order. ' The General Counsel-excepts, inter alia to the Trial Examiner's failure to find that the discharges by Respondents of employees Schnell and Milosevich were in violation of Section 8(a)(3) rather than solely in violation of Section 8(axi) of the Act. We, after full consideration of the record, deem it unnecessary to determine as did the Trial Examiner, whether the Respondents' conduct also violated Section 8(aX3) of the Act since in any event the remedy ordered herein would be the same. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SAMUEL, Ross, Trial Examiner: Upon a charge filed by Herbert J. Schnell, Jr., an individual, on October 29, 1970, and amended owDecember 8, 1970, the General Counsel of the National Labor Relations Board issued a complaint on December 17, 1970; which alleges that Bi-State Warehous- ing, Inc. (herein called Bi-State), and Associated Shippers, Inc. (herein called Associated), are joint employers of the Charging Party,'Herbert J. Schnell, Jr., and of one Milo Milosevich, and that by terminating the employment of Schnell and Milosevich about October 27, 1970, and by failing and refusing thereafter to reemploy them because they engaged in union or concerted activities for the purpose of collective bargaining or mutual aid or protec- tion, the said joint employers engaged in and are engaging in unfair labor practices within the meaning of Sections 8(aXl) and (3) and 2(6) and (7) of the Act. Bi-State and Associated filed separate answers which deny that they are joint employers, deny the substantive allegations of the complaint, and deny the commission of unfair labor practices. Pursuant to due notice, a hearing on the complaint was conducted before me at St. Louis, Missouri , on February 9 and 10, 1971. Upon the entire record, my observation of the witnesses and their demeanor, and after due consideration of the brief filed by the General Counsel, I make the following: FINDINGS OF FACT I. COMMERCE Bi-State is a Missouri corporation whose office and principal place of business is located in St . Louis, Missouri. At all times material herein Bi-State has been engaged in the business of furnishing warehouse facilities and labor to BI-STATE WAREHOUSING, INC. 609 other businesses both at its own places of business and at those of its customers. During the year ending December 31, 1969, 'a representative period, Bi-State performed services valued in excess of $50;000 which were performed in and for various enterprises located in States other than the State of Missouri. On the foregoing admitted facts, Bi- State concedes, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Associated is a nonprofit Illinois corporation composed of various member companies, whose office and principal place of business is located in East St. Louis, Illinois. At all times material herein, Associated has been engaged in the business of freight forwarding for its member companies. During the year 1969, a representative period, Associated performed services valued in excess of $50,000 for various enterprises located in States other than the State of Illinois. On -the foregoingadmitted facts, Associated concedes and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of-the Act. II. THE LABOR ORGANIZATIONS INVOLVED . Local Union No. 729, affiliated with, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called Local 729), and Highway & City Freight Drivers, Dockmen and Helpers Local Union No. 600, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called Local 600), admittedly are labor organizations within the meaning of Section 2(5) of the Act, and I so find. III. THE UNFAIR LABOR PRACTICES A. The issues Presented for Determination As noted above, the complaint in this case alleges that the Respondents Bi-State and Associated are joint employers of Schnell and Milosevich, and that their employment was terminated because they engaged in union or protected concerted activity. The Respondents deny that they are joint employers of Schnell and Milosevich and contend that Schnell was fired, not for union or concerted activity, but for cause. Apparently, the Respondents also contend that Milosevich was neither fired nor laid off, but quit his employment J The issues thus raised will be considered seriatim. B. The Joint Employer Status of Associated and Bi-State Associated is a nonprofit cooperative "shippers associa- tion" which is engaged in the business of receiving and shipping freight for its member companies. The officers and 1 The Respondents called no witnesses and adduced no testimony after the General Counsel rested at the conclusion of his case. Moreover, they filed no brief after the conclusion of the hearing. Under the circumstances, the contentions attributed to the Respondents above are those which I have gleaned and/or inferred from the testimony, of Respondents' General Managers Wamser and Cawein during, their examination as witnesses called by the, general Counsel under Rule 43(b) of the Rules of Civil Procedure for United -States District, Courts, and from the nature of Respondents' cross-examination of Schnell and Milosevich. board of directors of Associated who establish and set its policies consist of officials, for the most part traffic managers, of its member companies. However, such officers and directors normally are not • present at Associated's premises, and do not direct the day-to-day operations of Associated. That is done by Robert Cawein, Associated's General Manager, an, assistant, a traffic manager, a warehouse supervisor, and some office employees.2 Associated's office, -warehouse space, and-freight dock all are located at one of -Bi-State's warehouses at 650 North Front Street, East St. Louis, Illinois.3 At that location, Associated employs a dock and warehouse supervisor, Steve Podrasky. However, Bi-State furnishes the employees who do all the physical labor for Associated of loading and-- unloading trucks at the said docks, and of placing and removing-merchandise in and from a warehouse. Associ- ated pays Bi-State for the labor performed by such, employees according to the number of hours they work. So" far as the record discloses, the employees so furnished by Bi-State work ` exclusively for Associated. Bi-State pays the salaries of the said employees who work at Associated's dock, and makes the usual deductions from ` their pay for tax withholding, social security, and the like. Bi-State has' no supervisor on Associated's dock, and day-to-day supervision of the work=of the employees thus furnished by Bi-State to Associated is .performed, only by Podrasky, Associated's dock and warehouse supervisor. Discipline of such employees, if any,is required, is the responsibility of Bi-State, but it -is based on reports of infractions received from Associated. Hiring of, the employees who work for Associated is done by Bi-State. However, Associated administers comprehension or aptitude tests to such employees 'to' be sure" that they, have the intelligence and skills it requires. Whether two or more employers possess and exercise sufficient indicia of control over the work-of employees to be regarded, as joint employers "is essentially a factual issue." 4 In this case, it_ is undisputed that although Associated's dock employees such as Schnell -and Milose- vich are hired and paid by Bi-State, they work for Associated only, and under the-latter's exclusive supervi- sion and control. In addition,- Associated administers aptitude tests to the employees sent it by Bi-State to be sure they are qualified to perform its work. It is thus fairly inferrable that Associated possesses the, right to reject unqualified employees so sent to it. In the light of'all these circumstances, including Associated's exclusive supervision of the work done by Bi-State's ' employees at its .dock, I conclude that Bi-State and Associated were joint employers of the said dock hands, including Schnell and Milosevich, ' who worked at Associated's d'ock.5 , 2 The foregoing is based on Cawem's testimony which is uncontroverted and credited to this extent, and on Associated's letterhead (G C. Exh. 2-B). 3 Bi-State also operates warehouses at 3300 South 2nd Street, St. Louis, Missouri, and at 14th Street and Converse Avenue , East St. Louis, Illinois. 1 Boire v. Greyhound Corporation, 376 U.S. 473, 481. . S Conductron Corporation, 183 NLRB, No. 54; Manpower,, Inc. of Shelby County,, 164 NLRB 287; The Greyhound Corporation, 153 NLRB 1488, enf'd 368 F.2d 778 (CA. 5). 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Hiring- by Bi-State of Schnell and Milosevich Prior to October 1970,6 Associated's dock and warehouse were located at 1717 North Broadway, St. Louis, Missouri, at premises owned and leased to it by Karmichael Cartage (herein called Karmichael). -During the period that Associated operated at premises leased from Karmichael, it also was furnished by Karmichael with the employees needed to perform its dock and warehouse operations.? During thisperiod that Associated operated at Karmichael's premises in St. Louis,- both Schnell and Milosevich were employed by Karmichael, but worked for Associated at its leased dock under the supervision of Associated's dock and warehouse -supervisor, Steve Podrasky:8 Both Schnell and Milosevich, were members, of Teamsters Local 600 which had a collective-bargaining ,contract. with Karmichael, and their rate of, pay was $4.33 per hour. About October 2, Associated terminated its lease and labor arrangement' with Karmichael, and the latter -thereupon laid off Schnell and Milosevich'..,On October 3,, at they request of ,Supervisor Podrasky, Schnell helped Associated' move its office, warehouse, and dock operations to'Ri-State' s premises in East St. Louis, Illinois. On Monday, October 5, Schnell was paid by Supervisor Podrasky for these services` in cash at the time-and-one-half rate of $6:49 per hour. Unlike Karmichael;,`whose employees were members of or represented by Teamsters Local 600, Bi-State's employ- ees are represented by Teamsters Local 729. Under the terms of Bi-State's collective-bargaining agreement with Local-729, new, employees`-are paid at the rate of $3.05-per hour, , and'' after 3, months they are paid the "warehousemen's' rate of $3.20'per hours About October 5,, Supervisor Podrasky asked Schnell to file an application for employment with Bi-State because he needed experienced help and Bi-State's employees "didn't know what they were doing." lO Schnell replied that he did not want to work for Bi-StateF because they were' paying only,'$3!05 per hour, -and because it might hurt a grievance that had been filed with Local 600.11 However, after consulting with Local 600's business ,agent and receiving the latter's assurance that his., employment at Bi-State "might even help our grievance," Schnell went to Bi-State's office,on, October 6 and filed an application for employ- ment. - About October 5 or 6, pursuant to a request, made by Supervisor Podrasky, Milosevich also filed an application for employment at Bi-State's warehouse. 6 All dates hereafter refer' to 1970 unless otherwise noted. 7 Associated apparently paid Karmichaelfor the labor 'so furnished in a numer_similar to its later arrangement with-Bi-State which is described in, •elign B above. 8 Milosevich had worked as a dock worker for I1 years and' for Karmichael for about 3 years. Schnell had worked for Karmichael for about 6 years. 8 G.C. Exh. 4. 10 A similar request also was received by Schnell from General Manager Cawein. - 11 Schnell testified without contradiction that a grievance had been filed in connection with the `transfer of Associated's work from Karmichael's warehouse in'St. Louis to that of Bi-State in East St. Louis. According to ell, the purpose of the grievance was to preserve the "seniority" of Karmichael's employees who worked for Associated at Bi-State "over' in East St. Louis," and that "we should follow the work:' On October 9 at 6 p.m., in- accordance with a telephone request from Warren W. Wamser, Bi-State's General Manager, Schnell and Milosevich went, to Bi-State's office in St. Louis and there met with Wamser and Eugene Slay, president of Bi-State.12 This appointment was the result of Cawein's request that,Bi-State hire Schnell and Milosevich to do,Associated's work-because of their experience- in, its, operations, acquired during their employment at Karmi- chael. At ..the meeting, Slay asked Schnell and Milosevich whether-they wanted to work for Bi-State. Schnell replied that he would be glad to work for Bi-State provided he-was paid the union scale of $4.33 per hour. Slayreplied that he could,not pay that, and that according to his contract with Local 729, Iris scale was $3.05. Milosevich then said that they would not work for $3.05. Slay responded that- if Associated wanted to pay them the difference he had no objection., Schnell- interposed that Associated,_had,not said that it was willing to makesup the difference,-and that he had been told by the business agents of both Local 600 and, 729 that he would "draw union scale over there [at Bi-State ] for dockhand's work." Schnell also said that if he was not so paid, there would be a picket line at Bi-State. Slay replied that he had a no-strike clause in his contract with Local 729 and that `they' could not strike him. Slay asked Schnell and Milosevich whether either one of them could drive a tow motor (a forklift),' and that if they did; he could pay them $3.25 per ho,ur.13 Schnell said that he could, but he told Slay not to do him any favors. There was some -further discussion of the possibility `that Associated might agree to make ' up the difference in the two ' pay' scales, 'but admittedly no assurance was given Schnell or Milosevich that they would be paid the higher rate. Slay then asked the two employees whether they would start to work the following day (Saturday, October ,10), , and Schnell replied that he did not know yet, that he would think about it.14 Notwithstanding the admitted lack of any agreement by eitherBi-State or Associated tomeet their demand for $4.33' per hour, Schnell and Milosevich reported to Associated's dock- for work on Saturday morning, -October 10,~ and proceeded to, work as dockhands under the'superuision,of Supervisor Podrasky.15 D. The Dispute over Wages and the Strike About October 13, while working at Associated's, dock, Supervisor Podrasky told Milosevich, "They have 'got to pay you $4.33 per hour. They cannot get away from that." 12 Slay also is president of Slay Industries , the parent company of both Bi-State and Bee lane. The latter company supplies tractors and drivers to Associated and does its drayage work, 13 Bi,States contract with Local 729 provides t}iat the rate for; Fork Lift operators was $3.40 per' hour. The $3.25' rate mentioned by Slay undoubtedly referred to new forklift employees during their^first 3 months of employment. - 14 The findings in respect to this meeting on October 9 are based on the uncontroverted and credited testimony of'Schnell and Milosevich. 15 As' a consequence of a later ' conversation the previous `evening between Schheli"-and General ' Manager Cawein, Schnell and ' General Manager Cawem ;'Schnell was under the impression that he Would work for Associated as an assistant dock foreman under Podrasky. However, shortly after Schnell started to work Saturdayinorning, he was told by Cawein and- Podrasky that they thought it Would be better for him "to get on Bi-State's seniority list," and he continued to work as a dockhand n'evertheless.' ' BI STATE WAREHOUSING, INC. 611 Milosevich replied, "I know that" However, Podrasky admittedly did not. tell Milosevich "who would pay the wages.",-On Wednesday, October 14, General Manager Wamser visited Associated's dock and after commenting favorably on the considerable progress that had been made in the work; he suggested that Schnell and Milosevich transfer their union membership from Local-600 to Local 729 to qualify for a 15 cent raise to $3.20 per hour after 90 days. Both Schnell and Milosevich refused to transfer their union membership. Milosevich replied that there was no need to transfer because they already "were making $4.33 an hour." Wamser's response to this was that Bi-State did not pay $4.33. Schmell's reply to Wamser was that Slay already had promised $3.25 ' per hour for operating the forklift. That apparently ended that conversation. Later that- day or -the next day, -Podrasky told Schnell and Milosevich that he had received word that the difference between $3.05 and $4.33 per hour would not be paid to them. Schnell replied that he would wait for his paycheck, and if it was not for $4.33 per hour he would go to the union hall. Podrasky told Schnell to- do what he thought he should. On Friday, October 16, Schnell and Milosevich received the paychecks for their work that week computed at the rate of $3.05 per hour. Schnell first called Local 600 and was advised to call Mr. Green, the business agent of Local 729. Schnell did so and was instructed by Green to meet him the following Monday at 7 a.m. at-Associated's dock, and to bring his paycheck stub with 1ii'm which showed the rate at which he-had been paid. ` -- - About 7 a.m. on Monday, October 19, when Schnell arrived at Associated's dock, he observed a picket line of Local 729 in front of the premises, consisting of Business Agent Green, Fults, vice-president of Local 729, and two unidentified persons, and he therefore did not go in to work. A short while later, Milosevich and Podrasky arrived, and Milosevich also refrained from going to work-' Associated's other dock employees also did not go to- work and they left the dock after they were told that the picketing was over the failure 'of Respondents to pay union scale. Schnell` and Milosevich remained at the picket line that morning although they did not themselves participate in the picketing. About 11:30 a.m., General Manager Cawein called Green into his office. `Green came out about 45 minutes later and told Schnell and Milosevich to go back to work, that Associated had agreed to pay them the difference between $3.05 and $4.33 per hour for the hours they already had worked, but that they would not receive $4.33 per hour for their work thereafter. The picket line was then removed and Schnell and Milosevich went on to the dock and started - to work. Subsequently, Schnell and Milosevich both received in cash from Supervisor Podrasky the additional pay thus promised them for the first week of their, employment by Associated at the premises leased from Bi-State.17 16 Milosevich and Supervisor Podrasky drove to and from work together. 17 The findings in this section axe based on the testimony of Schnell and Milosevich which was not controverted and is credited. I 19 The findings and quotes above are based on the uncontroverted and credited testimony of Schnell. Podrasky was not called by the Respondents E. The Discharge of Schnell and the Layoff of Milosevich Both Schnell and-Milosevieh worked for the Respondents during , the entire week which followed .the termination-.of the strike and picketing on October 19. - 1. Schnell's discharge On Monday, October 26, `Schnell transferred his union membership from'Local 600 to Local 729. The following afternoon, Schnell asked Supervisor Podrasky to call either General Manager Wamser or Mr. Slay and inquire why "he was not being paid $3.25 per hour for driving the tow motor "like Mr. -Slay had said" at the prehire interview. Podrasky replied "that he would call and find out" A short time later Podrasky told Schnell that he had talked to Wamser, and that Wamser said, "for me; not to worry about,the money, that first I had caused a work stoppage, and now I want my money, and I am a troublemaker, [and] tell him not to report to work anymore." The day- after he was thus discharged, Schnell visited the Associated dock and, asked Podrasky whether he, or ' General Manager Cawein, had said anything to get him fired. Podrasky replied, "Not that he knew of, [and] that he wanted , me to stay there and work.", Apparently, Schnell has not been offered reemploy- ment by either Associated or Bi-State since October 27. 2. The layoff of Milosevich On Friday, October 24, and- again on Monday, October 26, Milosevich told Supervisor Podrasky that he wanted to be off on Tuesday, October 27, because that was his "All Saints holiday," that he could work- on. Wednesday and Thursday, October 28 and 29, and that he would,-not be able to work on Friday, October 30, because his son "was coming home from the service"-that weekend. Pbdrasky gave his -approval to this request and said, "Fine." In accordance with this schedule, Milosevich worked _ on Monday, October 26, and stayed-home the following day. About 12 or 3 p,m. on October 27, . Podrasky -telephoned Milosevich and asked him whether he had received a letter from Karmichael calling him back to work_.19 Milosevich answered, "Yes," and Podrasky inquired, "What did you decide?" Milosevich replied that in accordance with, his prior request approved by Podrasky, he intended to work on October 28 and 29, take-off on October 30, and resume working for Associated on Monday, : (November 2). Milosevich also told Podrasky that he intended to return to work for Karmichaehfor one lday only, in order "to ask Mr. Brown, who is the Karmichael owner" for the-vacation, pay to which he was entitled by reason of his prior employment by Karmichael, ,after which he would return to, work for Associated. Podrasky said,"That is fine," and that ended the conversation, That same evening, Podrasky visited Milosevich at `his home and told him,"Milo, I have got'bad news for you." to refute any of the statements attributed to him by Schnell- and Milosevich, and no explanation was offered for the failure to call him. See fn. 1, supra. is As previously noted, Milosevich had been laid off by KarmichaeI on October 2 when Associated transferred its warehouse and dock operations from Karmichael to Bi-State. - 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Milosevich asked, "What happened,-Mr. Steve?" Podrasky replied, "Herb Schnell got fired, and you are laid off." Milosevich asked, "For what reason?" Podrasky said he did not know and suggested that Milosevich "go back to work for Karrinchael." Mitosevich' replied, "Like I told you, I go for only one day to get my vacation•'[pay], and I go back to work for you again." About a week after October 27, Milosevich telephoned Podrasky and asked him whether he had "a chance to come back," and he was, told by Podrasky that he did not know. Since,, October 27, Milosevich . has, not been recalled by Respondents to, work. Accordingly, Milosevich has contin- ued, to . work for Karmichael since his layoff by Respon- dents. However, he has, not had "any -full weeks [of work] for them."20 , F. The Pretextual Reasons Asserted for the Discharge of Schnell As previously noted, the Respondents contend ' that Schnell was discharged for cause. According to General Manager Wamser, he decided to fire Schnell on October 27 because for a period of 2 weeks he had"been receiving numerous complaints frori' Associated's General Manager Cawein " and' Supervisor ' Podrasky that Schnell was "insubordinate, ' that he had' a "surrly attitude" and "a chip on his shoulder," and that they were "fed up with him." Wamser further testified that his decision to fire Schnell also was based on an incident of insubordination and the use of profanity by Schnell to Podrasky reported by F.M. Gentile, a traffic manager employed by Monsanto Co. who also is president of Associated, and on an incident which he personally had observed 2 weeks earlier. wherein Schnell made a' profane, gesture to 'Podrasky. As will appear hereinafter, I regard Wamser's testimony as implausible and unworthy. of credence, and I regard the .,reasons asserted,by Wamser for Schnell's discharge as pretexts to concealthe true motivation behind his termination. Schnell and Milosevich admittedly were hired by Bi-State to work for Associatedas a result=of the recommendation of Cawein, . Associated's general manager.' Cawein was "instrumental their hiring" because Schnell and Milosevichwere experienced with Associated's operations, having worked for it'for a number of years when Associated was located at Karmichael's warehouse in St. Louis and Karmichael supplied Associated with its labor. During those ' years at Karmichael, Schnell and Milosevich had worked under the supervision of Warehouse Supervisor Podrasky. `Thus, both Cawein and' Podrasky obviously knew `both the capabilities and the temperaments of these two employees, including Schnell's 'admitted propensity to profanity in 'his conversations." Undoubtedly, Cawein would not have, recommended Schnell or Milosevich for employment by'Bi-State for`Associated's"operations unless 20 The findings above are based on the uncontroverted and credited testimony of Milosevich.' '21 Warner- testified ,the `complaints' began 2 weeks before he fired Schnell on October 27. Schnell started to work for Bi-State on October' 10, just 17,days, or a little over 2 weeks before he was fired. 22 The' unexplained failure to call Podrasky permits the inference which I make that if called to testify, Podrasky would not have supported their behavior and performance had been regarded by him and by Supervisor Podrasky as atleast satisfactory. ^ _ According to Wamser's testimony, both ' Cawein and Podrasky began, complaining about, Schnell's. behavior almost immediately - after he was hired.21 However, contrary to Wamser's testimony, Cawein denied that he ever complained to Wamser about °Schnell.:Podrasky was not called by the . Respondents to testify, and no explanation was offered for the failure to call- 4him.22 Moreover, Schnell admittedly was ?never reprimanded by either Wamser or anyone else for his alleged insubordina- tion or improper attitude. All of the foregoing, including my assessment of Wamser's, demeanor, persuades me that no credence can be placed in his implausible and unsupported testimony regarding complaints from Cawein or Podrasky that Schnell was either surly, insubordinate, or that they were "fed up with him." This leaves for, consideration Wamser's testimony that he also fired Schnell because of Gentile's report that Schnell had used profanity to Podrasky and because Wamser personally, had observed, Schnell making an ,,allegedly profane gesture to Podrasky. Although Schnell admitted that he used profanity,"often in his conversations both with fellow dockhands and with his foreman, Podrasky, I nevertheless regard Wamser's testimony that Schnell's use of profanity, was- a reason for his,. discharge as likewise, unworthy of credence. According to Wamser, he,observed Schnell making a profane gesture to Podrasky about 2 weeks before Schnell's termination.23 Schnell's use of- profanity to Podrasky in the presence of Gentile occurred on October 19, 8 days before Schnell's termination, and was promptly reported to , Wamser. Warmer nevertheless admittedly did not,reprimand Schnell for this, conduct, either, at the time of these occurrences or at any, other time thereafter. Although the use of such language and gesture may not comport with the standards of polite, society, the issue here is not, whether Schnell'sprofanity and gesture were i proper, but whether ,he was discharged for their use. Under all the circumstances, including the failure of Respondents to ever reprimand Schnell for using profanity notwithstanding his propensity- therefor, and the time intervals-between the gesture and profanity which allegedly motivated-Schnell's discharge and the effectuation of his, dismissal, I conclude that no credence can be placed in' Wamser's, testimony, that Schnell's discharge was so' motivated. My conclusion in this regard is, moreover, consistent with Schnell's credited and uncontroverted testimony that on the day following his discharge, he was told by Podrasky,' the butt of his profanity, that "he [Podrasky] wanted me [Schnell] to stay there and work." For all these reasons, -including Podrasky's and Cawein's recommendation that `Bi-State hire Schnell to work for Associated, despite their undoubted J' knowledge of his ability, temperament, and behavior', I conclude that the reasons asserted by Wamser for discharging Schnell are Wamser's testimony regarding his alleged complaints about Schnell. N.LKB. v. Sam Wallick, et al., d/b!a Wallick and Schwalm Company, 198 F.2d 477, 483 (C.A. 3); 2 Wigmore on Evidence, sec. 285; cf. 0. F. Shearer & Sons v. Cincinnati Marine Service, Inc.,'279 F.2d 68, 73-74 (C.A. 6). zs Wamser's oral description and physical demonstration of the gesture suggests ` that it was not necessarily profane, but in the light of Schnell's admission regarding his propensity to profanity,-I will assume that it was. ' BI-STATE WAREHOUSING, 'INC. patently implausible and unworthy of belief, and are pretexts to conceal the real motivation for his termination. G. The Reason for the 'Termination ^of Milosevich In, respect to the termination of Milosevich, the only testimony adduced by-:Respondents was that of Wamser who testified-, that he never made a , decision "to fire Milosevich. " Since . the Respondents have filed no brief setting forth-their contentions, I am forced to speculate that they probably contend that Milosevich voluntarily quit his employment at_Bi State to return to his job at Karmichael, Contrary to such a, contention, however, , Milosevich credibly testified without - contradiction: (1) that he had received Podrasky's approval to take off on October 27, his All Saints holiday; (2) that he also had advised Podrasky and obtained, his consent to work for Karmichael for one day on Monday, November 2, in order to get the vacation pay due him as a, result of his prior employment by Karmichael; and (3), that he was notified of his layoff by Podrasky on ; October, 27, before he had returned to work the .1 day for Karmichael. Under the circumstances, since Podrasky clearly was the Respondents' agent and conduit for notifying employees of management decisions, there obviously can be no merit'- to any contention that Milosevich voluntarily quit' his employment with Bi-State. H. Concluding Findings The real reason for the termination of both Schnell and Milosevich' Ion October ' 27 is quite apparent from the record. Ever since these two employees were hired by Bi- State to work for Associated at $3.05 an hour, they had asserted a claim and: right to be paid at $4.33 per hour, the rate which they had received at Iarmichael for, their work for Associated. When their claim was not met at the end of their first week of employment, they had complained to both their own union, Local 600, and to Local 729, which represents Bi-State's employees. That complaint had precipitated picketing by Local 729 of Associated's dock at Bi-State's warehouse, as a result of which all of the dock employees, including Schnell and Milosevich, had refrained from working. In settlement of that work stoppage, Schnell and Milosevich received' higher rate they claimed only for the first week of their employment, but were relegated to the lower rate , thereafter. - However, when Schnell then sought on October 27'to obtain the $3 .25 per hour .which President Slay said that Bi-State paid towmotor operators, Wamser promptly reacted by instructing' Podrasky to tell Schnell that he need not-worry about the money because he was not to report`anymore,-and to notify Milosevich that he was laid off. The timing of these terminations on the same day clearly discloses that both were . motivated by the renewal of claims for ,more pay, which Schnell had thus instituted. In presenting their , claims for more, pay, Schnell and Milosevich had acted throughout in concert for their mutual aid and protection, a right clearly guaranteed them by Section 7 of the Act. In making a last attempt to get 24 In the light of that finding, and since the remedy would not in any event be different, I deem it unnecessary - to determine whether the Respondents conduct also, violated Section 8(ax3) of the Act. 613 towmotor operator's pay, it is fairly apparent that Schnell, the more aggressive of the two, again was acting not only for himself, -but also for Milosevich, whose knowledge of English undisputedly was meager and limited.' Indeed, Wamser obviously thus regarded Schnell's request- for towmotor pay, for he reacted' thereto by terminating the employment of both Schnell and Milosevich. Accordingly, I conclude that these two employees were terminated on the same day for engaging in. 'a protected concerted activity, and that the said action constituted unfair labor practices within the meaning of'Section 8(a)(1) of the Act. Moreover, since Bi-State °and - Associated" were joint employers of Schnell and Milosevich, I further find that by terminating' the employment of Schnell and Milosevich, both of said Respondents engaged in the said unfair labor,practices.24 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE , The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Respondents described in section 1,, 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 of commerce. V. THE REMEDY Having found that the 'Respondents "have engaged in certain unfair labor practices, I will recommend that they cease and desist therefrom and take' certain affirmative action designed to effeetuatethepolicies of the Act. Having found that the Respondents terminated the employment of Herbert J. Schnell, Jr. and Milo Milosevich and thereafter failed and refused to reemploy them because they engaged in concerted activities for mutual aid or protection guaranteed them immediate -reinstatement to their former positions or, if they, no longer exist, to substantially, equivalent- positions, without prejudice to their seniority or other rights and privileges, And make them whole for any loss of earnings they may have suffered'by reason of the discrimination by the payment to. each of them of a sum of money equal tothe amount he normally would have earned from the date of his termination to the date of reinstatement, less his--net earnings ,during said period, with backpay computed on a quarterly basis in the manner establishedby theBoard.25 l I will also recommend that the Respondents preserve and, upon request, make available., to the Board -or its agents, for examination and, copying, all payroll , records, social security payment records,, timecards, personnel records and reports, and all other records necessary -to analyze and determine the amounts of backpay due under the terms of this recommended remedy; Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: - - - 25 F. W. Woolworth Company, 90 NLRB 289; backpay shall include the payment of interest at the rate of 6'percent per anuuU►to be computed in the manner set forth in Isis Plwnbing-& Heattag'Co.; 138 NLRB 716. 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS' OF LAW 1. Respondents, Bi-State Warehousing, Inc.,; and Asso- ciated Shippers, Inc., are employers engaged in, commerce and in operations affectinng commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. 729, affiliated with International Brotherhood of, Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Highway & City Freight Drivers, Dockmen_ and Helpers Local Union No. 600, affiliated with International Brotherhood, of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor organizations within the meaning of Section 2(5) of the Act. 3. In respect to employees like Herbert J. Schnell, Jr., and Milo ' Milosevich' who were hired and paid by Respondent Bi-State Warehousing, Inc., to work for and under the supervision of 'Respondent Associated Shippers, Inc., both of said Respondents were joint employers of such employees. 4.' By terminating the employment of Herbert J. Schnell, Jr., and Milo Milosevich and by thereafter failing' and refusing to reemploy them because they had engaged in concerted 'activities for mutual aid or protection guaranteed to employees by the Act, theRespondents have engaged in and are, engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I hereby make the following recommended: ORDER 26 Respondents, Bi-State Warehousing;' Inc.,, and Associat- ed Shippers, - Inc., - their officers, agents, ' successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employees in regard to hire or tenure of employment or any term or condition of employment " for 'engaging in any activity protected by Section 7 of the National Labor Relations Act. (b) In any like or ' related manner interfering with, restraining, or coercing employees in the exercise of their" rights to engage in 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 to effectuate the policies of the Act: (a) Jointly and severally }offer Herbert J. Schnell, Jr., and Milo Milosevich immediate and full reinstatement to their former jobs or,-ifthose jobs no longer exist;'to substantially equivalent positions, without prejudice to their seniority or other rights and privileges enjoyed, and make them whole for- any loss of pay they may have suffered as a ,result of the discrimination against them in the manner providedin the section of this Decision entitled "The Remedy." (b) Notify Herbert J. Schnell, Jr.,,and Milo Milosevich, 'if presently serving in the Armed,Forces of the United States, of their right , to full reinstatement upon application in accordance with, the Selective Service Act and the Universal Military Training and Service Act, as amended, afterdischarge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying,- all payroll records, social securitypayment records, timecards, personnel records and reports, " and all other records necessary to analyze and determine ^ -the amounts of backpay dueunder the terms of thisrecommended Order. (d} Post at=the Respondents', dock and warehouse located at 650 North Front Street, East St. Louis, Illinois , copies of the notice marked "Appendix."27 Copies of said notice, on forms provided' by the Regional Director for Region K. after being duly signed-by Respondents, shall be posted by them for a period of 60 consecutive days, thereafter, in conspicuous places; including all places where notices to employeesiare customarily posted. Reasonable steps, shall be taken by the Respondents to insure that said notices are not altered, defaced,^or covered by any other material: , (e)' Notify the Regional, Director - for Region ,14, in writing, within 20 days from the date of-the receipt of this Decision, what steps have been taken-to comply herewith.28 26 In the event no exceptions, are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations and recommended Ordee herein shall, as provided in Section 102.48 of the Rules and Regulations, automatically become the findings,-conclusions, decision, and order of the Board, and all objections thereto shall be deemed waived for all purposes. 27 In the event that the Board's Order is genforced by a judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR ' RELATIONS ' BOARD" shall be changed to 'read "POSTED PURSUANT TO A'JUDGMENT OF THE UNITED STATES' COURT OF APPEALS ENFORCING AN ORDER,OF TkIENATIONAL,LABOR RELATIONS BQARD." In the event that this recommended Order is adopted by the Board after exceptions have-been 'filed: this provision shall' be modified to read: "Notify said Regional Director for Region 14, in-writing,=within 16 days from ,the--date of this Order, what-steps the Respondents have ,taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER 'OF THE NATIONAL LABOR ° RELATIONS BOARD An Agency of the United' States'' Government' AFTER -A TRIAL AT WHICH ALL SIDES HAD THE OPPORTUNITY TO PRESENT THEIR EVIDENCE,^ A TRIAL EXAMINER OF ` THE NATIONAL, LABOR RELATIONS'BOARD HAS; FOUND THAT WE yIO-, LATED THE-NATIONAL LABOR RELATIONS ACT, AND HAS ORDERED US TO=POST THIS-NOTICE-.' The Act gives all'employeestheserights: 'To engage in self-organization Totform,join, or help, unions To bargain collectively through a representa- tive of their own choosing To act together, for collecctive bargaining or other mutual aid or protection To refrain from any and all of these things. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL, NOT discharge or otherwise discriminate BI-STATE WAREHOUSING, INC. against any employee in regard to hire or tenure of employment or any term, or, condition of employment for engaging in any activity protected by Section 7 of the National Labor Relations Act. WE WILL NOT in any_ like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act, including their rights to engage in concerted activities for the - purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities. Since the Trial Examiner decided that we violated the Act by terminating - the employment of Herbert J. Schnell, Jr., and Milo Milosevich because they engaged in concerted- activities guaranteed by the Act, WE WILL offer them full reinstatement to their former jobs, and WE WILL pay them for any loss they suffered because we terminated their employment. If they are presently in the Armed Forces of the United States, we will notify them of their right to full reinstatement upon application after discharge from the Armed Forces. Dated By Dated By 615 BI-STATE WAREHOUSING, INC. , (Employer) (Representative) (Title) ASSOCIATED SHIPPERS, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. - 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. Any,questions concerning this Notice or compliance with its provisions,' may be directed, to the Board's Office, 210 North 12th 'Boulevard, Room '448,- St. Louis, Missouri 63101, Telephone 413-622-4174.