Watson Brothers Transportation Company, Inc.

In the Matter Of WATSON BROTHERS TRANSPORTATION COMPANY, INC. and INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE 1004 Case No. C-739.-Decided April 22,1939 Motor Carrier Industry-Interference, Restraint , and Coercion-Discrimination: discharge of shop mechanic because of expressed hostility toward a back-to-work movement arising during a driver 's strike, which movement was approved and supported by respondent-Reinstatement Ordered-Back Pay: awarded. Mr. Arthur R. Donovan, for the Board. Frazenburg, Webb, Beber, Klutznick & Kelley, by Mr. San Beber, of Omaha, Nebr., for the respondent. Mr. B. W. King, of Omaha, Nebr., for the Machinists. Miss Margaret M. Farmer, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by International Association of Machinists, Lodge 1004, herein called the Machinists, the National Labor Relations Board, herein called the Board, by E. J. Eagen, Regional Director for the Seventeenth Region (Kansas City, Missouri), issued its complaint, dated April 18, 1938, against Watson Brothers Transportation Com- pany, Inc., Omaha, Nebraska, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint and accompanying notice of hearing were duly served upon the respondent and the Machinists. The complaint alleged in substance that on June 4, 1937, the International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local 554, a labor organization herein called the Teamsters, called a strike at the respondent's plant in Omaha, Nebraska; that prior to and following said date, the respondent co- operated and assisted in efforts to persuade its employees to re- nounce said strike, sponsored meetings for such purpose, and caused petitions to be circulated among its employees for the same purpose ; that on or about June 18, 1937, respondent discharged Dwight 12 N. L. R. B., No. 51. 432 WATSON BROS. TRANSPORTATION COMPANY 433 McManimie, a mechanic in its repair shop at Omaha, Nebraska, and has at all times since then refused him reinstatement because he joined and.assisted the Machinists and because he refused to cooperate with the respondent in its efforts to break said strike of the Team- sters. On April 25, 1938, the respondent filed an answer to the complaint in which it denied that it had engaged in or was engaging in the unfair labor practices alleged, and denied that its alleged activities had an intimate or substantial relation to commerce among the several States. Pursuant to notice, a hearing was held in Omaha, Nebraska, on May 2 and 3, 1938, before Gustaf B. Erickson, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel, and the Machinists by a representative; all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the hearing, the Trial Examiner made various rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On June 28, 1938, the Trial Examiner issued his Intermediate Report in which he found that the respondent, by discharging and refusing to employ Dwight McManimie, had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act; and recom- mended that the respondent cease and desist from its unfair labor practices, and, affirmatively, that it reinstate McManimie to his former position with back pay. On July 8, 1938, the respondent filed ex- ception's to the Intermediate Report and requested the privilege of making oral argument before the Board. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board on January 31, 1939, at Washington, D. C. The respondent and the Machinists appeared by counsel and participated in the argument. The Board has considered the exceptions filed by the respondent and save as they are consistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT 1 Watson Brothers Transportation Company, Inc., a Nebraska corpo- ration with its principal place of business in Omaha, Nebraska, is ' The facts set forth in this section are derived from a stipulation signed by the attorney for the respondent, the attorney for the Board, and the representative for the Machinists and entered in the record as Board Exhibit No 2. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in the operation of a motor vehicle trucking service carrying freight, both intrastate and interstate, between various points in the States of Nebraska, Iowa, Illinois, Colorado, Kansas, and Missouri. In addition to its terminal at Omaha, Nebraska, the respondent main- tains terminal facilities in Kansas City and St. Joseph, Missouri, Des Moines and Sioux City, Iowa, Lincoln, Nebraska, and Denver, Colorado. The respondent employs approximately 300 persons. II. THE ORGANIZATION INVOLVED International Association of Machinists, Lodge 1004, is a labor organization affiliated with the American Federation of Labor. Al- though its eligibility requirements are not disclosed by the record, it has members among the respondent's employees. III. THE UNFAIR LABOR PRACTICES The discharge of Dwight McManimie Dwight McManimie was employed in November 1936, as a mechanic in the repair shop of the respondent's Omaha, Nebraska , terminal. Sometime subsequent to April 1, 1937, he became interested in join- ing a union, and on May 12, 1937, during a short strike called by the Teamsters, filed an application for membership in that organization. As he was ineligible for membership in the Teamsters , his application was transferred to and accepted by the Machinists. He immediately embarked upon a vigorous campaign for members among his fellow mechanics, and according to his own testimony , "taught them unions" and induced them to sign membership applications. The record indi- cates that Webb, McManimie's foreman, knew of this activity and was aware of the identity of the union members in the shop. He testified that at one time he cautioned them to be careful of what they said. Webb, however, was apparently sympathetic with the union movement in the shop and testified in McManimie's behalf at the hearing. We think it improbable that he conveyed his knowledge of this matter to his superiors . We find the evidence insufficient to support a conclusion that the officers of the respondent knew of McManimie's activities in behalf of the Machinists prior to his dis- charge on June 18, 1937. On June 4, 1937, the truck drivers in the employment of the re- spondent joined in a city-wide strike called by the Teamsters to achieve, if possible, a closed-shop agreement with employers. The respondent found it necessary to close down its operations completely, including the repair shop. A back-to-work movement was immedi- ately initiated. Although purportedly conceived and engineered by WATSON BROS. TRANSPORTATION COMPANY * 435 a non-union truck driver named Joe Munshaw, it received the active guidance of the Nebraska Truckers' Association, of which the re- spondent was a member, and was undertaken with the approval and financial support of the respondent. A meeting held in the office of the Truckers' Association was attended by Charles Hall, secretary of the Truckers' Association, Fay Watson, president of the respondent, and Joe Munshaw, the truck driver mentioned above. On June 8, 1937, Munshaw called three successive open meetings at the Castle Hotel in Omaha to enlist support for the movement. The cost of the meeting and of meals and lodgings for Munshaw and several other employees was met in part by driver's drafts 2 on the respondent and in part by the respondent directly. At the first of these meetings, A. R. Leffingwell, city solicitor of business for the respondent, Frosty Stone, an office employee, and Billingsly, a driver who had formerly been a truck owner, spoke against unions and in behalf of the re- spondent. The meeting was not well attended and was adjourned for several hours in order that a larger group might be solicited. Mc- Manimie, who had attended the first meeting in response to a sum- mons telephoned him from a source not disclosed by the record, also attended the second meeting. The speeches which had been made at the first meeting were repeated. After Leffingwell had spoken, Mc- Manimie rose and asserted vigorously to the men surrounding him that so far as he could see, the meeting looked like a scab meeting; that it looked as if it had been sponsored by someone, and that, since there was no one present authorized to act in an effective way, he could not see the purpose for which it had been called. He also sug- gested that those present "seemed to be pinning roses on Watson instead of horns." Thereupon, he left the gathering and refused to have anything further to do with the group. Although several truck drivers expressed themselves as being opposed to a settlement of the strike without obtaining the respondent's guarantee of a closed shop, McManimie was apparently the only mechanic to voice a protest against the purpose of the proceedings. Munshaw testified that he reported "little talks not in harmony with the meeting" to Fay Wat- son, and that he heard and reported to Watson McManimie' s remarks about "pinning roses on Watson instead of horns." He testified that Watson replied that he (Watson) had already heard of these remarks. Despite Watson's denial at the hearing of any knowledge concerning McManimie's part in the meeting, we believe, after con- sidering all the evidence, that Munshaw's reports were given as stated, and that they were given at the time or very shortly after the meetings were held. 2A driver's draft is a blank form of draft supplied the driver by the respondent for use on the road in case of emergency . Drivers were not ordinarily permitted to use them in Omaha. 169134-39-vol 12-29 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When McManimie returned to work at the termination of the strike on June 18, 1937, the timekeeper, on Fay Watson's orders, gave him his final check and summarily discharged him. At the hearing, Watson attributed McManimie's discharge to three causes, namely, three unexcused absences during working hours, failure to finish two jobs at the times requested by his foreman, and a suspicion on the part of Watson that McManimie was stealing parts from the supply room. The record shows that one of McManimie's three allegedly un- excused absences from the shop occurred early in April with the express permission of Webb. Watson saw McManimie leave the yard at approximately 2:30 p. m. on the day in question but did not speak to him. He did, however, inquire the reason for this seeming irregularity from Webb and was informed that McManimie had been granted leave to attend to personal business. Watson expressed strong disapproval. There is no evidence in the record, however, to indicate whether the disapproval was directed towards McManimie for leaving the shop early or towards Webb who, by permitting such action may, in Watson's estimation, have exceeded an admitted au- thority to grant men occasional time off. During two of the bookkeeper's frequent visits to the shop, McManimie was absent. These absences were reported to Watson, and when Watson requested of Webb an explanation of this con- duct, Webb pleaded ignorance of McManimie's whereabouts. How- ever, at the hearing Webb indicated that it was not unusual for the mechanics to be absent from the floor temporarily, that McManimie had occasionally gone to the International Truck Company for parts, and that he had not been absent without permission. Watson stated that one of these absences occurred during the latter part of May, and that, had he not been preoccupied with the strike of his drivers, he would have discharged McManimie at that time. He testified that he complained to Webb of the absence at the time of its occurrence, and that it was the duty of Webb to transmit the complaint to McManimie. The content of such complaint was not specified at the hearing. Watson did not assert, nor does the record -how, that it embodied a threat of McManimie's discharge. Mc- Manimie testified that he did not receive any such threat. Watson testified and Webb admitted that on two occasions Webb had reported to Watson that McManimie had failed to finish the truck upon which he was working before quitting for the night. Watson explained that when a truck was required for the next day's run, the mechanic assigned to its repair was expected to work the overtime necessary to finish it although it appears that the respond- ent paid no compensation for said overtime. There is no evidence WATSON BROS . TRANSPORTATION COMPANY 437 that McManimie failed to work until the normal quitting time on the jobs in question, or that Watson attached importance to these two incidents or commented unfavorably upon them at the time of their occurrence. As we have seen, in none of the five instances claimed by Watson at the hearing to have been the basis of McManimie's discharge, was McManimie reprimanded by Watson personally. In only two of the five instances does the record show affirmatively that Watson apprised Webb of his disapproval of McManimie's conduct. In one of these two instances there is uncertainty as to whether his dis- approval was directed to McManimie or to Webb. Furthermore, many witnesses, including Webb, testified to the high quality of McManimie's work. That its excellence was also recognized by the respondent is attested by the fact that on April 1, 1937, he received a substantial increase in wages,3 and that upon one occasion he was put in charge of the shop during the absence of Webb and his assist- ant foreman. In the light of these facts, we are of the opinion that neither Webb nor McManimie had reason to anticipate the discharge of McManimie prior to its occurrence. Watson maintained that he suspected McManimie of stealing parts from the supply room. However, parts were stolen from the sup- ply room in October 1936, before McManimie was employed, and some were stolen, but in smaller quantities, after his discharge. It also appears that a substantial number of tools had been stolen shortly before the hearing. It may be noted in this connection that at least one truck driver did not return to his employment at the termination of the strike. Although the supply room was locked when the stock clerk left for the day, the key was available and could be used at night by both drivers and mechanics. There is no evi- dence that any employee or officer of the respondent other than Fay Watson had ever suspected McManimie of dishonesty. We do not believe that Watson ordered McManimie's discharge because he sus pected McManimie of theft. -Although the record indicates that the absences and failures to fin- ish work complained of by Watson extended over a period of at least 10 weeks prior to McManimie's discharge, and although Watson be- came aware of the theft of parts from the supply room shortly after his arrival in Omaha on March 1, 1937, Watson did not at any time criticize McManimie personally for his conduct or voice a suspicion of McManimie's dishonesty either to McManimie or to others. It does not appear from the testimony of Webb or of Watson that the complaints which Watson made to Webb were of such a nature as to 'We do not consider plausible the assertion of Fay Watson that this increase was awarded McManimie solely on the basis of a promise made in November by a superintendent no longer in the employ of the respondent. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have reasonably led to the inference that Watson was contemplating McManimie's discharge. It may be noted in this connection that the reasons advanced at the hearing for his discharge are not consistent with those which, according-to J. E. Cuddeback, a representative of the Machinists, were advanced by Watson before the hearing. Cud- deback testified that Watson, in an interview with him, held prior to the hearing first attributed the discharge to the necessity of reduc- ing expenses in the shop; and that when Cuddeback pointed out the fact that another man was at that time working in McManimie's place, Watson asserted that McManimie was incompetent. Watson stated at the hearing that he had related the same circumstances and given Cuddeback "substantially" the same reasons for the discharge as he later advanced at the hearing. We believe, however, that Cuddeback's version of the interview is substantially true. The reasons for the discharge advanced by the respondent at the hearing are so implausible that we are constrained to believe that other and more substantial considerations provided the true motiva- tion for its action. Upon the entire record in the case, we find that the discharge was due primarily to McManimie's open opposition to the back-to-work movement approved and supported by the respondent during the Teamster's strike, and to the respondent's consequent fear that the union movement among his employees would spread to include his shop mechanics. We base this finding, in part, upon the fact that so far as the record discloses, McManimie was the only mechanic who expressed opposition to said back-to- work movement, and upon the uncontradicted testimony of Cudde- back, the union representative, that Watson told him that the Team- sters were costing so much money that it might be necessary to close the shop, and that if the mechanics organized and presented him with an agreement, he would certainly close the shop. Watson contended that all the respondent's employees except McManimie had been reinstated at the termination of the strike and that this fact renders insupportable the charges of discrimination against McManimie. The record shows, however, that the reinstate- ment of one truck driver was stoutly opposed by the respondent and was finally accomplished after prolonged negotiations by the Teamsters. The mechanics in the respondent's employment were few in number and not fully organized. They had no contract with the respondent. Under the circumstances we consider the foregoing con- tention to be without merit. We find that the respondent discharged Dwight McManimie be- cause of his open opposition to the back-to-work movement started among the respondent's employees during the strike of the Teamsters, thereby discriminating in regard to his hire and tenure of employ- WATSON BROS. TRANSPORTATION COMPANY 439 lent, discouraging membership in the International Association of Machinists, and interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. At the time of his discharge McManimie was earning.$30 per week. Since that time he had been employed by four companies and had earned a total of $758.14. He desired to be reinstated to his former position. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States and with foreign countries, and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent has engaged in unfair labor practices. We will, therefore, order it to cease and desist therefrom. We have found that the respondent has discriminated against Dwight McManimie by discharging him on June 18, 1937. We shall order the respondent to offer said Dwight McManimie immediate and full reinstatement to his former position, without prejudice to his sen- iority and other rights and privileges and to make him whole for any loss of pay he may have suffered by reason of his discharge by payment to him of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement less his net earnings during said period.4 Upon the foregoing findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Association of Machinists, Lodge 1004, is a labor organization, within the meaning of Section 2 (5) of the Act. 4 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county, municipal, or other work-relief projects are not considered as earnings , but, as provided below in the Order , shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county , municipal, or other government or governments which supplied the funds for said work-relief projects. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By discriminating in regard to the hire and tenure of employ- ment of Dwight McManimie, thereby discouraging membership in International Association of Machinists, Lodge 1004, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Watson Brothers Transportation Company, Inc., and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in International Association of Machinists, Lodge 1004, or any other labor organization of its em- ployees, by discriminating in regard to hire or tenure of employment or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer Dwight MeManimie immediate and full reinstatement to his former position without prejudice to his seniority and other rights and privileges ; (b) Make whole Dwight McManimie for any loss of pay he may have suffered by reason of his discharge, by the payment to him of a sum of money equal to that which he would normally have earned as wages from June 18, 1937, the date of his discharge, to the date of such offer of reinstatement, less his net earnings during said period; deducting, however, from the amount otherwise due to said employee, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of WATSON BROS. TRANSPORTATION COMPANY 441 the Federal, State, county, municipal, or other government or govern- ments which supplied the funds for said work-relief projects; (c) Immediately post notices in conspicuous places throughout its plant, and maintain such notices for a period of at least sixty (60) consecutive days, stating that the respondent will cease and desist in the manner set forth in paragraphs 1 (a) and (b), and will take the affirmative action set forth in paragraphs 2 (a), (b) of this Order; (d) Notify the Regional Director for the Seventeenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.