Joseph R. Gregory

In the Matter of JOSEPH R. GREGORY, ( AN INDIVIDUAL ) and UNITED TRANSPORT WORKERS INDUSTRIAL UNION, LOCAL 806, AFFILIATED WITH C. I. O. Case No. C-1612.-Decided April 18, 1941 Jurisdiction : transportation of mail under contract with U. S. Government; jurisdiction contested. Unfair Labor Practices Interference, Restraint, and Coercion: anti-union statements ; interrogation con- cerning union membership. Discrimination: discharge motivated by employee's newly-discovered union membership. - - Collective Bargaining: majority established by union membership testified to by the president of the union-refusal to meet and negotiate ; failure to reply to communications ; although employer had indicated in its answer to the complaint of its willingness to enter into good faith negotiations to ascertain whether or not a reasonable and fair contract can be executed, it refused to confer with a union representative concerning modifications it desired in the proposed contract. -Remedial Orders : reinstatement and back pay ordered. Definitions Company engaged in transporting' mail under contract with U. S. Govern- ment held an employer and"not the United States within the meaning of Section 2 (2) of the Act. Unit Appropriate for Collective Bargaining : all regular -and extra drivers. Mr. C. Paul Barker, for the Board. - Mr. Kal f ord K. Miazza, of New Orleans, La., for -the respondent. Mr. F. C. Pieper and Mr. Raymond Terrio, of New Orleans, La.; for the Union. dlr. Bonnell Phillips, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Transport Workers Industrial Union, Local 806, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fifteenth Region (New Orleans, Louisi- 31 N L. R. B, No. 17. 71 72 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD ana), issued its complaint dated April 20, 1940, alleging that Joseph R. Gregory, an individual, herein also called the respondent, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Sec- tion 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance (1) that the respondent on or about December 1, 1939, and on or about January 4, 1940, and at all times thereafter, refused 'to bargain collectively with the Union as the exclusive representa- tive of his employees in a unit appropriate for collective bargaining, although the Union became, on or about November 28, 1939, and has at all times thereafter remained the duly designated representative of a majority of the employees in such unit;• (2) that the respondent, on or about December 1, 1939, discharged William Mitchell, an employee, because of his membership in and activities on behalf of the Union, thereby discriminating in regard to his hire and tenure of employment and discouraging membership in the Union; and (3) that by these and other acts the respondent interfered with, re- strained, and coerced his employees in the exercise of rights guar- anteed in Section 7-of the Act. On May 3, 1940, the respondent filed an answer, in substance denying that he had engaged in or was engaging in the alleged unfair labor practices. Pursuant to notice, a hearing was held on May 9 and 10, 1940, at New Orleans, Louisiana, before Herbert Wenzel, the Trial Ex- aminer duly designated by the Board. The Board, the respondent, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-ex- amine witnesses and to introduce evidence bearing on the issues was afforded all parties. At the close of the hearing, a motion by counsel for the Board to conform the complaint to the proof was granted without objection. During the course of the hearing the Trial Ex- aminer made rulings on other 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 12, 1940, the Board, pursuant to Article II, Section 36, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered that the proceeding be transferred to and continued before it; that no Intermediate Report be issued by the JOSEPH R. GREGORY 73 -Trial Examiner; that, pursuant to .Article II, Section 37 (c), of said Rules and Regulations, Proposed Findings of Fact, Proposed Conclusions of Law and Proposed Order,. be issued; and further ordered that the parties herein should have the right within twenty (20) days from the date of issuance to file exceptions to such Proposed Findings of Fact, Proposed Conclusions of Law and Pro- posed Order, and to request oral argument before the Board, and that the parties should have the right, within thirty' (30) days from the date thereof, to file briefs with the Board. Thereafter, on August 5, 1940, the respondent filed a motion, accompanied by a brief in support thereof, to dismiss the complaint for the reason that the respondent is not an employer within the meaning of Section 2 (2) of the Act, and that consequently "the Board does not have jurisdiction of this complaint."- The Board has considered the brief filed by the respondent and, for the reasons below stated, hereby denies the respondent's. motion. . On February 11, 1941, the Board issued and duly served upon the parties Proposed Findings of Fact, Proposed Conclusions of Law and Proposed Order. The respondent, on March 3, 1941, filed ex- ceptions to the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order and, on the same date, a brief in support thereof. The Board has considered the exceptions to the Proposed Findings of Fact, Proposed Conclusions of Law and Proposed Order and finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Joseph R. Gregory, is an individual engaged under contract with the United States of America, acting in this respect by the Postmaster General, in transporting mail on Route 449001 in and about New Orleans, Louisiana. Under the terms of this contract, executed for and during the term beginning July 1, 1938, and ending June 30, 1942, the respond- ent transports mail between the Post Office at New Orleans, Louisi- ana, and the mail station at Algiers, Orleans Parish, Louisiana, and between various bus and railroad terminals in the City of New Orleans, including those of the Teche Greyhound Lines, the Illinois Central System, the Yazoo & Mississippi Valley R. R. Co., the Texas & Pacific Railway Co., the Missouri Pacific R. R. Co., the Southern Railway System, the Louisiana and Arkansas Railway Co., the Gulf, Mobile & Northern R. _R. Co., the Louisville & Nash- ville Railroad, and the New Orleans & Lower Coast Railroad. i4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the performance of the contract the respondent owns and operates approximately 14 trucks and employs some 10 regular driv- ers and one extra driver. The contract incorporates by reference the conditions set forth in •a Post Office bulletin of December 27, 1937, soliciting bids for the - performance of the duties above outlined. In undertaking the con- tract the-respondent was required to furnish a bond conditioned upon the-faithful performance of the services contracted for. Drivers hired by him must meet certain minimum age and educational stand- .,ards, -and• are required to take,an oath prescribed by the Post Office Department and to wear standardized caps or hats with badge. Un- der the provisions of the bulletin, "Drivers furnished by contractors for the service of carrying the mails will be required to load and unload the mails under the direction of authorized representatives of the Post Office Department," and the Postmaster "may require the contractor to suspend a driver from duty for inefficiency or other -serious delinquency." It is further stipulated that "the drivers, motor vehicles, and service are to be at all -times under the control of the Postmaster, and are to be operated under such schedules as the Post- master may prescribe." As above indicated, the respondent obtained the contract under which he now operates through competitive bidding. The statutory -provisions governing the letting of contracts for the carriage of mail require the Post Office Department to solicit such bids by advertise- ment and to accept the proffer of the lowest responsible bidder un- less all bids shall be deemed exorbitant.' The contractor hires such individuals and furnishes such equipment as-is necessary to the per- formance of the contract. The contractor fixes the wages to be paid to his drivers, they hours to be worked by them, assigns them to various routes, and otherwise controls the details of their employ- ment,, subject to the supervisory authority maintained by the Post Office Department as above outlined. It is the respondent's contention that he "is not an individual within the contemplation of the National Labor Relations Act, but -is an agent of the United States, performing what is essentially a governmental function, i. e.; the carriage of mail." Section 2 (2) of the Act provides in part : The term "employer" includes any person acting in the interest of an employer, directly or indirectly, but shall not include the United States or any State of political subdivision thereof ' Chap 12, Sec 421-451, Title 39, U S C A. JOSEPH R. GREGORY . 75 If, by the respondent's assertion that he "is not an individual within the meaning of the Act," it is meant that he is not an em- ployer within the meaning of Section 2 (2), the respondent's con- tention must fail unless he is the United States. The respondent is the employer of the drivers utilized by him in performance of his contract by all the criteria, such as control over detail, payment of compensation, and power of appointment, evolved by the Courts as tests of whether or not one is alp, employer. Since the United States is excluded _from the term "employer" as used in the Act, it is un- necessary to consider whether the control exercised by it over the respondent would.be sufficient to render it jointly responsible with the respondent for the commission of unfair labor practices, absent such an exclusion. The sole question thus remaining is whether the respondent is the United States within the intent and meaning of the Act. We think not.2 The respondent does not directly assert that he is the United States. He argues that he must be considered an "agent" of the United States by virtue of the fact that he is engaged in what is termed a "governmental function," and he readily concedes that one who is not so engaged is an employer within the meaning of the Act even though he conducts his operations solely under contract with the Government. However relevant such distinctions may be in other fields of law 3- we think it clear that the remedial provisions of the Act, designed to protect and effectuate the national policy, that employees shall have the right to self-organization and to collective bargaining with their employers, should not be suspended merely because an individual who has obtained a government contract in competitive bidding with other private individuals seeking profit from the performance thereof, is engaged, thereunder in what has 2It is clear that the respondent has not become an officer of the United States merely by taking the oath required of him and his drivers by statute. See Glavez v United States, 35 Ct. Cl 242 ( reversed on other grounds , 182 U S 595 ), wherein the Court said, "An official oath is an incident to the discharge of the duties imposed and does not constitute him who takes it an officer de jure" 2 The respondent's brief in support of the motion to dismiss the complaint cites certain court decisions terming mail contractors "public agents" and "instrumentalities "' In the main they involve the liability of mail contractors to third persons for the negligence of the contractor's servants in handling mail, and do not directly construe the rights and liabili- ties existing between the Government and the contractors . The United States Supreme Court has denied claims of individuals operating under contract with the United States that they , as "instrumentalities of the United States ," should escape local taxation In Cromer v. Standard Dredging Co., 224 U. 5. • 362, the Court upheld the imposition of a property tax levied by Porto Rico upon the dredge, tugboats, etc , being owned and used exclusively by a corporation under contract with the United States in dredging San Juan harbor , a function clearly as "governmental" in character as the carriage of mail So also in James v. Dravo Contracting Co., 302 U S. 134, both the majority and minority opinions held that a gross, receipts tax levied upon a corporation engaged under contract with the Government in the construction of locks and dams for improvement of navigation was not laid upon the United States nor upon an instrumentality of the United States. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been termed a "governmental function" in cases arising under other circumstances.4 The respondent argues that "in the event the em- ployees of the respondent organized for the purpose of 'securing higher wages then there would be no doubt but that payment of these wages would be ultimately borne by the United States." While the Act, of course, only guarantees that employees shall have- the right to bargain collectively concerning wages, the respondent's con- tention is equally applicable to all persons who, by contract with the Government, have undertaken to supply goods to or perform services for the Government. They, like the respondent, are engaged in business for profit, and it is manifest that they are not within any accepted definition of "the United States." 5 Congress, in the various Civil Service, Classification and other Acts, has established provisions governing the conditions of employment in various branches and agencies of the Government. Employees of these bodies would, in the final analysis, have to seek adjustment of many. matters properly the subject of . collective bargaining from the Con- gress itself. The respondent's employees are not within the-pro- tection of these-statutes; 6 nor could the Post Office Department under the terms of the respondent's contract entertain requests for or bind the respondent in collective bargaining with representatives of the 4 The Act, unlike the Social Security Act below quoted , makes no reference to instrumen- talities of the United States. Sections 811 (b ) 6, Title vlll , and 907 ( c) 5, Title IX of the Social Security Act provide in part that "The term 'employment' means any service . . . except . . . service performed in the employ of the United States Government or of an instrumentality of the United States " It therefore appears that Congress , in defining the. term "employer" 'n Section 2 (2) of the Act, did not contemplate the broad exclusion of all persons who by tenuous construction might be deemed "instrumentalities " of the Govern- ment It should be further noted that the Commissioner of Internal Revenue has issued an opinion holding that a mail contractor , such as the respondent, is not even within the broad exceptions contained in the above quoted 'sections of the Social Security Act. Inter- nal Revenue Bulletin, 1937-2, 438. See also Buckstaff Bathhouse Company v . McKinley, 308 U. S 358. In Buclcstaff Bathhouse Company v. McKinley, 308 U S. 358, the Court considered the applicability of the Social Security Act to a concessionaire of the Secretary of the Interior operating in a National Park. It there stated : "The mere fact that a private corporation conducts its business under a contract with the United States does not make it an instrumentality of the latter. Fidelity it Deposit Security Co v. Pennsylvania, 240 U.S. 319 Petitioner's lease from the Secretary of the Interior 'did not convert it into such an instrumentality . Petitioner 'is engaged in its own behalf, not the Government 's, in the conduct of a private business for a profit.' See Fed- eral Compress it Warehouse Co. v. McLean, 291 U: S 17, 22 . . . The control reserved by the Government for protection of a governmental program and the public interest is not incompatible with the retention of the status of a private enterprise ... . That control being wholly supervisory , is not to be differentiated from the type of control which the United States may reserve over any independent contractor without transforming him into its instrumentality . See dames v. Bravo Contracting Co , 302 U S 134, 149 " ',In this respect see 18 Ops Att'y. Gen. 389, and 19 Ops . Att'y. Gen. 685 , holding inap- plicable to employees of contractors of the United States a statute providing "Eight hours shall constitute a day 's work for all laborers, workmen and mechanics , now employed, or who shall hereafter be employed by or on behalf 'of the government of the United States " The provisions of the Walsh -Healy Act , dealing specifically with employees of contractors with the United States, does not relieve the contractor from his obligations under the Act. See Matter of Union Envelope Company and Envelope Workers Union No. 593, et al., 10 N. L. R. B . 1147, 1155. JOSEPH R. GREGORY 77 respondent's employees. These matters lie wholly within the de- termination of the respondent. We find that the respondent is not the United' States within the meaning of Section 2 (2) of the Act.' We further find that the respondent is an employer within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Transport Workers Industrial Union, Local 806, is a labor organization affiliated with the Congress of Industrial Organiza- tions. It admits to. membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES - A. The discriminatomy- discharge of William Mitchell William Mitchell was discharged by the respondent, Joseph R. Gregory, on December 1, 1939. He, together with a majority of the respondent's truck drivers, had joined the Union during the previous month.8 Mitchell, although paid at the same wage rate as other drivers, exercised over them a certain degree of supervisory authority, being in charge of the respondent's operations during Gregory's numerous absences from New Orleans, and being at all times, as Gregory described him, the respondent's "leaderman." On November-30, 1939, the day prior to Mitchell's discharge, the respondent received a letter from the Union stating in part that a majority of his employees had designated the Union as their bar- gaining agent, and requesting a meeting for the purpose of negotiat- ing a contract "covering wages, hours of work, and general working conditions." On the afternoon of that day, following receipt of the letter, the respondent sought an interview with Raymond Terrio, president of the Union. The respondent and Terrio together proceeded to the 'office of F. C. Pieper, Regional Director for the Congress of In- dustrial Organizations. In the interview which ensued, Gregory, 7 In Fleming v. G'regory, 36 Fed Supp . 776 (E. D. La.), the respondent in this case moved for the dismissal of a complaint brought against him'under the Fair Labor Standards Act (29 U. S. C. A., Sections 202, et seq.) which , like the National Labor Relations Act, specifi- cally excludes the United States as "employer" from the effect and operation of its provi- sions. The respondent there contended, in the words of the Court , that he "is a public agent • of the United States in the discharge of his contractual obligations , and further, all persons employed by him in order that he mai effectively comply with his contractual obli- gations, also become public agents of the United States, and so being are actually 'em- ployees' of the United States." The Court denied the motion to dismiss the complaint. For a somewhat analogous case in which we overruled a claimed exemption under Section 2 (2) of the Act, see Matter of New York Mail & Newspaper Transportation Co. and Com- mittee for Industrial Organization, etc., 4 N. L R B. 1066. Cf. also Matter of Isbell Con- struction Company and Building Trades Coiuncll, 27 N L R B 472. 8 See Section III C, infra 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD according to the testimony of Terrio and Pieper, refused to discuss union proposals, asserting only that he (the respondent) was not subject to the provisions "of the Wage and Hour Act," and that he therefore believed himself exempt from the provisions of the National Labor Relations Act. During the course of this conversation the respondent inquired whether all of his employees were. members of the Union. Upon being informed that there was one that was not, the respondent asked, according to the undenied testimony of both officials, "Well, is that Willie Mitchell ?" Terrio replied that it was not- Mitchell but an ,employee who had been absent during the period of organization. Pieper's testimony, corroborated by Terrio, is undenied that Gregory, upon thus learning that Mitchell had become a union member, said, "Well why didn't Willie [Mitchell] come to me about this matter? He is my leaderman, he should consult me about these things." Henry Washington, a driver employed by the respondent, testified without denial as follows concerning a conversation which he had with Gregory on the night of November 30: He [Gregory] said, "Washington, do you belong to Union?" And I said, "Yes." He said does Willie Mitchell belong to the- Union, and I said "I don't know." He said, "Yes, he be- longs to the Union, and he knows that you all joined the Union and didn't tell me anything about it, and all of my business in his hands, and I have confidence in him," and he asked me what would I do, would I fire him.?_ On the -morning, following the events above described, Gregory discharged Mitchell, saying, according to Mitchell, "Willie, any time I put confidence in a man to-run a business and then he goes up - there and joins the Union without telling me, I don't want him." The respondent asserts in effect that the discharge of Mitchell was the result of a cumulative series of delinquencies and unauthor- ized acts on the part of that employee. When the respondent under- took the carriage of New Orleans mail on July 1, 1938, he hired for that purpose the employees utilized by one Charles S. Potter in the' performance of the same function during the previous 8 years. The respondent alleges that reports were thereafter received by him that certain of these employees, led by Mitchell, opposed the hiring and retention of Clifford Wills, an employee newly brought into the service by Gregory when he began operations under the contract, and that "they were trying to run him [Wills] off the job." The respondent's answer, alleges that this reported conduct on the part of Mitchell was a "reason," although not the principal one, for his discharge. JOSEPH R.-GREGORY 79 Mitchell and several other employees denied in their testimony that Mitchell had lead any attempt to have Wills dismissed. The source of Gregory's alleged information to the contrary was not disclosed in the record. Tom Vaughn, an employee who replaced Mitchell as the respondent's working foreman, testified, however, that prior to Mitchell's discharge Gregory had questioned him as to whether such reports were true, and that he had answered, "Yes." Upon cross-examination, however, this witness was unable even to approximate the date of his statement to Gregory. Clifford Wills testified that he had been informed by Vaughn of the alleged plot against him, but admitted that he had never had "any trouble" with Mitchell. It seems inconceivable that had Mitchell actively desired Wills' dismissal he, in the exercise of his authority as the' respondent's working foreman, would not have manifested his antagonism in, a less devious manner, either by direct discriminatory action against Wills or by making unfavorable reports on Wills' work and abilities to the respondent. The respondent admitted that he had never questioned either Mitchell or Wills concerning the matter. Under all the circumstances, we find that Mitchell did not participate in any movement to oust Wills. Even if, contrary to our finding, Mitchell did participate in a concerted action directed against Wills, or the respondent believed him to have so participated, the event occurred long prior to Mitchell's discharge, and in view of the events of November 30,, above described, we are satisfied and find that it was not an operative cause of the respondent's decision to discharge Mitchell on December 1, 1939. - The respondent further alleges that he received oral complaints from two postal officials, Hamann and Wbre, concerning Mitchell's failure to cooperate in the handling of mail during the period pre- ceding his discharge. Wbre did not testify and the contents of his alleged report is undisclosed.' Hamann testified that he had re- quested Gregory sometime in the summer or early fall of 1939 to instruct the respondent's truck drivers to back their trucks to the side of mail cars so as to eliminate the former procedure of carrying mail from car to truck by hand wagon, and that Mitchell had at first failed to do so and had then been slow in observing the new procedure. 'Hamann testified that he spoke twice to Gregory con- cerning the matter and on a third occasion invited Gregory to come to the station "and see for himself." Thereafter, according to At the request of the Respondent , the record was left open at the conclusion of the hear- ing for the receipt of a deposition by Wbre . The Trial Examiner directed that the deposi- tion be taken , if practicable , within 10 days from the close of the hearing , or, if not, that the respondent request of him an extension of time for that purpose . The deposition has not been filed , nor has a request for an extension been received 80 DECISIONS OF NATIONAL LABOR .RELATIONS BOARD Hamann, "Mr. Gregory came down one night and seen for himself, and after that conditions were better." - The respondent's assertion that Hamann's complaints were opera- tive as factors in Mitchell's discharge is not persuasive. Mitchell testified that he had acquiesced in and faithfully performed Greg- ory's instructions to back his truck to the mail coach upon first re- ceiving them. There is the distinct possibility that Gregory, after agreeing to Hamann's request, which, according to Hamann, was not mandatory under the respondent's contract but only a "courtesy," failed to convey the instructions to Mitchell 'until after Hamann's third complaint.10 It may be noted that several other postal officials who performed services similar to Hamann testified at the hearing that Mitchell's work was "always all right"; 11 that his conduct was "cooperative"; 12 that "he knew the work very well".13 In view of this testimony it is difficult to believe that Mitchell would deliberately disregard Gregory's instructions.14 Moreover, in support of our be- lief that Gregory did not convey such instructions to Mitchell until some time after receiving Hamann's request, we note a striking dis- crepancy in Gregory's conduct. Hamann testified that after Greg- ory's visit to the station Gregory assured him that he had again spo- ken to Mitchell.l" Yet, Gregory testified that after observing Mitch- ell's slowness in reporting, he did not speak to Mitchell, about the matter, although he had done so at the time of Hamann's first two complaints. We fail to understand Gregory's silence if he had in fact twice before reprimanded Mitchell. Gregory's admitted silence is, furthermore, indicative of the fact that Mitchell's alleged delinquency did not at the time of its oc- currence assume the significance with which it is now invested by the respondent. An infraction of'regulations by one of, the respondent's employees is, if consequential, reported in writing to the chief clerk of the mail service-by the postal official observing it. This, it was to Hamann's first two complaints were based upon the fact that "the driver didn't come hack" to the mail car but parked his truck outside the station as was the practice before Hamann made his request to Gregory. 11 So testified by Peter Palmisano, a clerk employed at the same station as Hamann. Although he did not observe or supervise Mitchell "every time," Palmisano testified, "I 'never had any trouble with Mitchell getting to a [mail] car." 13 So testified by Daniel Buchner. "He (Mitchell) always tried to make the dispatches that were supposed to be made, and if a wagon iNasn't there, or another driver wasn't there at the time . he would always be willing to take their place " 11 So testified by Waldo Frank. "In the event there was any mail left over,-or some other driver could not take the mail, he would, out of his turn, bring the mail to the station and see that everything had been carried out properly and in the right manner." - - - -- - - 14 Hamann's request and subsequent complaints were addressed only to Gregory and not to Mitchell. Hamann further testified that Mitchell was not insubordinate to him and that Mitchell obeyed his orders when'they were explained to him., This despite the fact that John Morse, a non-union employee of Gregory's, testified that Mitchell in his presence once refused Hamann's command that he drive his truck to the side of a mail coach. 15 See footnote 16, infra. JOSEPH R. GREGORY 81 testified by all postal officials attendant at the hearing, is an event which reflects upon the character of the service rendered by the contractor, and might 'cumulatively lead to the imposition of mone- tary penalties by the postmaster or to abrogation of his contract. According to the undenied testimony of the subordinate to whom such reports are referred, no written complaints have been filed concerning Mitchell. The record, however, discloses that there have been several involving other employees of the respondent, and that the respondent's attention has been called to them. The respondent has never by discharge or by lay-off disciplined any of the drivers involved. His inconsistency in alleging Hamann's oral complaints as causative factors in Mitchell's discharge is apparent. Finally, it may be noted that while Hamann was unable to ap- proximate the dates of his complaints to Gregory, his testimony, reiterated upon cross-examination'16 that "conditions were better" after Gregory's alleged visit to the station amply demonstrates that the incident occurred some time before Mitchell's discharge, and further that this difficulty had been satisfactorily* adjusted. On the morning of November 30, the day previous-to his discharge, Mitchell made arrangements with Otis Brown, an extra driver then employed by the respondent, to drive his truck and to cover his route that night. This was a recognized practice among the J!e- spondent's drivers and there is no claim that Mitchell was "at fault in so doing. Later in the day Mitchell informed Gregory of the arrangement, and, according to his testimony, promised Gregory to go to the station where Brown was to begin the route so as to see that the substitution occurred on time. Mitchell further testi- fied that he did so, ' and it is admitted by the respondent that Mitchell's schedule was properly met by Brown that night. The respondent, however, testified that Mitchell had promised to 'appear, not at the station where his route began, but at the post office. The respondent testified that he himself went to the post office that night but that Mitchell did not appear. Consequently, the respondent avers, Mitchell was informed the next morning that his services were unsatisfactory and he was discharged. As hereinabove stated Mitchell testified in substance that lie was told by the respondent at the time of his discharge that' he was not "wanted" because lie joined the Union. Gregory denied this testi- 10 Q [Gregory ] was hiding behind something while he was watching Mitchell 9 A. (By Hamann.) I couldn 't tell you that , he told me he was going to watch and see for. himself Now, where lie hid out at, I don 't know , I didn't pay any attention to that. Q. Then he told you he spoke to Mitchell? A. That is right. Q And after that, you didn't have any further trouble? A. After that, I didn't have any further trouble. Mitchell backed up regularly, and he ,was on time. 82 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD mony. In view, however, of the undenied testimony by Terrio, Pieper, and Washington heretofore set forth concerning the events of November 30, 1939, we credit Mitchell's testimony.' We are satis- fied and find that Mitchell's non-appearance at the post office on the evening of November 30 was not the cause of his discharge. That incident can at worst be described as a misunderstanding between Gregory and Mitchell and it is admitted that it did not result in any impairment to the service. The respondent even according to his own testimony, did not on the following morning -question Mitchell as to the reason for his non-appearance, but summarily discharged him."' Upon all the evidence we are of the opinion and find that each of the reasons advanced by the respondent for Mitchell's discharge represented t_n afterthought designed to justify in retrospect a dis- charge motivated by Mitchell's newly-discovered union membership and activity."' We find that the respondent, by discharging William Mitchell on December 1, 1939, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union, and thereby interfered with, restrained, and coerced his employees in the exercise of rights guaranteed in Section 7 of the Act. B. Interference, restraint, and coercion Following receipt of the Union's letter on November 30, 1939, the respondent, according to the undenied testimony of a number of his employees, questioned them concerning their union membership. Felix Walker, an employee so questioned, testified, without contra- diction, that Gregory further stated to him that the Union "wouldn't do him any good, . . . that (he) would be throwing money away putting it in there." Another employee, James Taylor, testified, again without, denial, that Gregory at a later date similarly ad- dressed him saying "that it wouldn't do any good to belong to the Union ; .. that I would give money to the Union, and I wouldn't do any good by that." We find that Gregory in substance made the above statements. We find that the respondent by these state- ments, and by questioning the above-named and other employees concerning their union membership, interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act. "In striking contrast to the treatment afforded Mitchell on this occasion is the only other disciplinary action ever taken by Gregory against one of his drivels On that occa- sion a driver refused point-blank to carry out an order delivered orally by Gregory. This deliberate insubordination resulted in the imposition of a 51/.-day lay-off 18 See Matter of The Kelly-Springfield Tire Company and United Rubber IVorteis of America, Local No. 26, et al, 6 N L R. B 325, 342, Matter of Highway Tiailer Company' and United Automobile Workers of America, Local No 135 , etc, 3 N L R B 591. JOSEPH R. GREGORY 83 C. The refusal to bargain collectively 1. The appropriate unit The complaint alleges that "all of the regular and extra drivers of the respondent constitute a unit' appropriate for the purposes of col- lective bargaining." The respondent, as far as the record reveals; has no other employees. Neither the respondent nor the Union have advanced any contentions concerning the appropriate. unit contrary to the allegations of the complaint. We find that all regular and extra drivers employed by the respond- ent constituted at all times material herein, and that they now con- stitute a unit appropriate for the purposes of collective bargaining with respect to wages, rates of pay, hours of employment, and other conditions of employment, and that the said unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit Terrio, the president of the Union, testified that the Union repre- sented 8 of the 11 employees in the appropriate unit on November 29, 1939. The names of these members were given in his testimony and the respondent dick not challenge its very city. Terrio further testified without denial that seven named employees held membership in the Union at the time of -the hearing. The re- spondent on that date had, 11 employees on its pay roll.19 We find that on November 29, 1939, and at all subsequent times material herein, the Union was the duly designated representative of a majority of the employees in the appropriate unit and that it, by virtue of Section 9 (a) of the Act, was the exclusive representative of all the employees in the unit for the purposes of collective bargaining. ' 3. The refusal to bargain collectively As hereinabove stated, the Union by letter dated November 29, 1939, requested a meeting with the respondent, and, as above outlined, the respondent in -the ensuing interview refused the Union's request that he bargain with it concerning wages, hours of employment, and 19 Terrio did not include in his testimony the name of William Mitchell , an employee dis- criminatorily discharged , as above found, prior to the hearing. By virtue of Section 2 (3) of the Act, Mitchell, who retains membership in the Union, is an employee of the respond- ent. Consequently, the Union's actual membership among the employees in the appropriate unit at the time of the hearing totalled 8. The seven union members other than Mitchell who are now employed by Gregory are those who became members prior to November 29, 1939. 441843-42-vol. 31-7 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other conditions of- employment. On January 4, and again on April 4, 1940, the Union by letter requested further, meetings with the respondent. The respondent denied having received the former com- munication but admitted receipt of the latter, which enclosed a pro- posed contract drawn by the Union. ' The respondent made no reply. In the respondent's answer to the Board's complaint, which alleged, inter alia, a violation of the respondent's duty to bargain collectively within the meaning of Section 8 (5) of the Act, the following paragraph appears : , , Respondent denies ... [this allegation], except that it is ad- mitted that the respondent has failed to execute the contract 'which was sent to him .. ., and the respondent avers that- the terms of said contract are harsh and arbitrary .:. ; respondent further -avers that he is willing to enter into a good faith nego- tiation with a representative of any union of which his employees are members in order to ascertain whether or not a reasonable and fair contract can be executed. - The respondent's denial is without merit. The testimony of Terrio and Pieper was •undenied at the hearing, and we find that the re- spondent refused to bargain collectively with the Union on November 30, 1939: The respondent's failure to reply to the Union's request of April 4, 1940, for a further conference constituted a continuing refusal to bargain. The record, moreover, shows that Terrio, after having been -served with a copy of the respondent's answer, and having noted therein the latter part of the above quoted paragraph; went to the respondent's home in an endeavor to confer with him. The respondent, however, refused to discuss what modifications lie desired in the proposed contract, saying only that "I will see you Friday after the case is heard by the Labor Board." We find that the respondent on November 30, 1939, and at all times thereafter, refused to, bargain collectively with the Union as the exclusive representative of his employees in the appropriate unit and that he thereby interfered with, restrained, and coerced his employees in the exercise of rights guaranteed in Section 7 of the Act. 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 re- spondent described in Section I'above, have a close, intimate, and substantial relation to trade, traffic, and commerce 'among the several States, and tend to lead to labor disputes burdening .and obstructing commerce and the free flow of commerce. , JOSEPH R. GREGORY 85 THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order him to cease and desist therefrom and, in aid of such cease and desist order, to take affirmative action which we find will effectuate the policies of the Act. We have found that the Union on November 29, 1939, and at all times thereafter was, and that it is the exclusive representative of the employees in the appropriate unit. Having further found that the respondent has refused to bargain collectively with the Union as such representative, we shall order the respondent, upon request, to bargain collectively with the Union as • the exclusive representative of the employees in the appropriate unit in respect to rates of pay, wages, hoi4rs of employment, and other conditions of employment. We have found tliat the respondent discriminatorily discharged William Mitchell on December 1, 1939. The respondent introduced in evidence two communications concerning Mitchell. The first, a report from Hamann addressed to the Chief Clerk, R. M. S., dated March 30; 1940, some 4 months after Mitchell's discharge and 10 days after issuance of the complaint herein, recited the oral complaints Hamann had made to Gregory, although it made no mention of the fact that Mitchell's conduct had thereafter been corrected. The sec- ond, a letter to Gregory over the signature of Joseph Ferguson, New Orleans Postmaster, after setting forth Hamann's report to the Chief Clerk, stated : It is evident from Mr. Hamann's report that Willie Mitchell is absolutely lacking in cooperation . . . If Willie Mitchell is still in your service, you will see to it that he is properly dis- ciplined and inform him that any further insubordination on his part will result in his dismissal from the service. If he is no longer in your employ, it will be in the interest of the service that he be not reemployed. These documents were both solicited by Gregory.20 Although Gregory at first denied, he later admitted in his testimony that the latter had been received by him after a conference- with Ferguson's secretary. The Postmaster testified that he had given no considera- tion to the matter and had simply signed the letter which had been prepared by the secretary. The Postmaster, in response to the question, "If the Board should find that Willie Mitchell was dis- 20 Gregory, some time after Mitchell's discharge, approached Hamann nith the request that he put in writing the,substance of his previous oral complaints Hamann replied that he could not do so under postal regulations and that such reports were made only to the Chief Clerk . Thereafter Hamann received an order , from the Chief Clerk to reduce to writing former complaints against Mitchell 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged by Mr. Gregory because of his union activities, you would have no objection to Willie Mitchell being reinstated?", replied, "I would not if he were discharged for that purpose". We have so found. We shall, accordingly, order the respondent to offer William Mitchell reinstatement to his former or substantially equivalent posi- tion without prejudice to his seniority and other rights and privi- leges, and to make him whole for any loss of pay he has suffered by reason of his discriminatory discharge by payment to him of a suln of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of the offer of rein- statement, less his net earnings 21 during said period. The respondent contends in opposition to the remedy above out- lined, however, that Mitchell has secured regular and substantially equivalent employment elsewhere ; that he is therefore no, longer an employee within the meaning of Section 2 (3) of the Act; and that, since he is not an employee, the Board has no power to order his reinstatement. While we do not adopt the view that the obtaining of other regular and substantially equivalent employment deprives the Board of power to. reinstate individuals who have been dis- charged for union activities and desire reinstatement,22 Mitchell's employment record since his discharge would not in any event justify the application of the rule for which the respondent contends. Mitchell received $60 a month while working for the respondent. Following his discharge on December 1, 1939, he recived unemploy- ment compensation payments in the approximate amount of $91. In or'about March 1940 Mitchell obtained periodic employment from Fabacher Drayage Company in New Orleans. During the 3 weeks preceding the hearing, however, work with Fabacher was more avail- able, and over the 3-week period Mitchell's earnings averaged approxi- mately $20 a week. „ It appears, from Mitchell's undenied testimony, however, that this work, being due to increased activity on the part of a brewery for which Fabacher hauls, is seasonal in nature. Mitchell does not have any supervisory status with Fabacher and con- siders himself to be an extra driver for that firm. He desires rein- 21 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 Amer- ica, Lumber and Sawmill 'Workers Union, Local 2590, 8 N. L. R B. 440 . Monies received for work performed upon Federal , Stats, county , municipal, or other work -relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R B ., decided by United States Supreme Court, November 12, 1940 2' Matter of Eagle-Pzcher_Mining & Smelting Company, et-al, and International Union of Mine, Mill d Smelting Workers, Local Nos. 15, 17,.107, 108, and 111, 16 N. L R B 727. See also , Continental Oral Company v. National Labor Relations Board , 113 F. (2d) 473 ( C. C. A.,10 ) ;- cert. granted (limited to this issue only ), 61 S. Ct. 72. JOSEPH R. GREGORY 87 statement to his former position.23 We find that William Mitchell has not obtained regular and substantially equivalent employment. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Transport Workers Industrial Union, Local 806, affili- ated with the Congress of Industrial Organizations, is a labor organ- ization within the meaning of Section 2 (5) of the Act. 2. The respondent is an employer, within the meaning of Section 2 (2) of the Act. 3. The regular and extra truck drivers employed by the respondent at all times-material herein constituted and they now constitute an appropriate unit for_ the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 4. United Transport Workers Industrial Union, Local 806, is, and has been at all times since November 29, 1939, the exclusive repre- sentative of all the employees in such unit for the purposes of collec- tive bargaining, within the meaning of Section 9 (a) of the Act. 5. By refusing and continuing to refuse to bargain collectively with United Transport Workers Industrial Union, Local 806, as the exclusive representative of its employees in the appropriate unit, the respondent has engaged in and, is engaging in unfair labor prac- tices within the meaning of Section 8 (5) of the Act. 6. By discriminating in regard to the hire and tenure of employ- ment of, William Mitchell, thereby discouraging membership in the Union, the respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in 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. 8. 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 foregoing findings of fact and, conclusions of law and pursuant to Section 10 (c) of the. National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, Joseph R. Gregory, his agents, successors, and as- signs, shall: 23 See Matter of Pulaski Veneer Company and United Brotherhood of Carpenters & Joiners or America, Local Union #1866, 10 N. L. R. B . 136, 147. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Discouraging membership in United Transport Workers In- dustrial -Union, Local 806, affiliated with the Congress of Indus- trial Organizations, or any other labor organization of his em- ployees by discriminating in regard to their hire and tenure of employment or any term or condition of their employment; (b) Refusing to bargain collectively with the United Transport Workers Industrial Union, Local 806, as the exclusive representative of his employees employed as regular or extra truck drivers in respect to rates of pay, wages, hours of employment and other conditions of employment. (c) In any other manner interfering with, restraining, or coercing his employees in the exercise of their rights of self-organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purposes of collective bargaining or 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) Upon request, bargain. collectively with United 'Transport Workers Industrial Union, Local 806, as the exclusive representative of his regular and extra truck drivers in respect to rates of-pay, wages, hours of employment and other conditions of employment; '(b) Offer William Mitchell immediate and full reinstatement to his former or substantially equivalent position without prejudice' to his seniority and other rights and privileges ; (c) Make whole William Mitchell for any loss of pay he has suffered by reason of the respondent's discrimination, by payment to him of a sum of money equal to that which he would normally 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 ; 24 (d) Post immediately in conspicuous places at the garage used by the respondent for the storage of his trucks or at other suitable and conspicuous places frequented by his drivers, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to his employees, stating: (1) that the respondent- will not engage in the conduct from which he is ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2) that, the respondent will take the affirmative action set forth in para-' graphs 2 (a), (b), and (c) of this Order; and (3) that the respond- ent's employees are free to become or remain members of United 21 See footnote 21, supra. JOSEPH R. GREGORY 89 Transport Workers Industrial Union, Local 806, - affiliated with the Congress of Industrial Organizations, and that the respondent will not discriminate against any employee because of membership or activity in that organization; (e) Notify the Regional Director for the Fifteenth Region, in writing, within ten (10) days from the date of this Order what steps the respondent has taken.to comply herewith.