Gamble-Robinson Co.

In the Matter of GAMBLE-ROBINSON COMPANY and GENERAL DRIVERS UNION LOCAL 116 OF THE INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, STABLEMEN & HELPERS OF AMERICA, AFFILIATED WITH THE A. F. OF L. Case No. C-1712.Decided July 12, 1941 Jurisdiction : fruit, grocery, and vegetable industry. Unfair Labor Practices Interference, Restraint , and Coercion : statements disparaging the anion; ques- tioning, warning, and threatening employees with respect to their union membership and activity. Discrinminatcon: discharge and lay-off of two employees because of their union membership and activity. Remedial Orders : reinstatement and back pay ordered. Misconduct prior to employment by respondent held no bar :o reinstate- ment where employee disclosed such misconduct shortly after employment by respondent 21/2 years prior to discharge and where there was no basis for belief that admittedly satisfactory service of employee during period of employment would not continue. Mr. Lee Loevinger, for the Board. Mr. L. P. McNally, of Minneapolis , Minn., for the respondent. Mr. Raymond J. Compton, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by General Drivers Union Local 116 of the International Brotherhood of Teamsters, Chauffeurs, Stablemen & Helpers of America, affiliated with the A. F. of L., herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Eighteenth Region (Minneapolis, Minnesota), issued its complaint dated June 18, 1940, against Gamble-Robinson Company, Fargo, North Dakota, herein called the respondent, alleging that the re- spondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations 33 N. L. R. B., No. 73. 351 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint, as amended, alleged in substance that the respondent (1) on or about April 12, 1940, discharged or laid off Ernest Remboldt, and on or about April 14, 1940, discharged or laid off Carroll Dietz, and there- after refused to reinstate said employees for the reason that they joined and assisted the Union and engaged in concerted activities for the purposes of collective bargaining and other mutual aid and protection; (2) on or about February 23, 1940, and at all times there- after, ,refused to bargain collectively with the Union as the exclu- sive representative of its employees within an appropriate bargaining unit, although the Union represented a majority of such employees; (3) on or about January 1, 1937, to the date of filing of the com- plaint herein, interrogated its employees concerning their union mem- bership or affiliation, and advised, urged, -threatened, and warned its employees to refrain from becoming or remaining members of the Union or any other labor organization, and from assisting the Union; and (4) by the afore-mentioned acts, and by other acts, inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On June 27, 1940, the respondent filed an answer to- the complaint admitting that it was engaged in interstate commerce within the meaning of the Act, but denying that it had engaged in the unfair labor practices alleged therein. Pursuant to notice, a hearing was held at Fargo, North Dakota, on July 1 and 2, 1940, before Peter F. Ward, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing upon the issues. During the course,of the hearing, the Trial Examiner granted a motion by counsel for the Board to dismiss these allegations of the complaint alleging that the respondent had refused to bargain col- lectively with the Union. At the conclusion of the Board's case, counsel for the Board further moved to amend the complaint to con- form to the proof with respect to variances in names and dates. The motion was granted. The Trial Examiner reserved ruling on an ob- jection by counsel for the Board to the admission in evidence of Respondent's Exhibit No. 31 In his Intermediate Report issued thereafter, the Trial Examiner overruled this objection and admitted 1 Respondent's Exhibit No. 3 Is the letter written by Kreltzberg to Cook herein below referred to. GAMBLE-ROBINSON COMPANY 353 the exhibit in evidence. During the course of the hearing the Trial Examiner made rulings on other motions and objections to the ad- mission 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. The Trial Examiner thereafter issued his Intermediate Report dated October 21, 1940, copies of which were duly served on the par- ties, in which he found that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He accordingly recommended that the respondent cease and desist from engaging in the unfair labor practices, and that it reinstate with back pay the two employees found by him to have been discriminatorily discharged. On November 18, 1940, the respondent filed exceptions to the Inter- mediate Report of the Trial Examiner, and on December 3, 1940, a brief in support of its exceptions but did not request oral argument before the Board. The Board has reviewed the exceptions to the In- termediate Report and in so far as they are inconsistent 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 The respondent is a Delaware corporation, with its principal busi- ness offices located at Minneapolis, Minnesota. It is engaged in the general fruit, grocery, and vegetable business, and operates one or more branch houses in the States of Iowa, Michigan, Minnesota, Montana, North Dakota, South Dakota, Wisconsin, and Wyoming. In 1939, the respondent purchased materials and products for its Fargo, North Dakota, branch, the only one with which this proceed- ing is concerned, valued at $668,169.54, of which over 90 percent came from sources outside the State of North Dakota. During the same year the total sales of merchandise at the Fargo branch amounted to $755,923.34, of which approximately 15 percent were for shipment to points outside the State of North Dakota. II. THE ORGANIZATION INVOLVED General Drivers Union Local 116 of the International Brother- hood of Teamsters, Chauffeurs, Stablemen & Helpers of America, is a labor organization affiliated with the American Federation of La- bor. It admits to membership warehousemen and truck drivers em- ployed by the respondent at its Fargo, North Dakota, branch. . 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M. THE UNFAIR LABOR PRA CTICES A: Interference, restraint, and coercion In October 1937, while a strike was in progress at Fargo among transfer employees not connected with the respondent, the Union made an unsuccessful attempt to organize the respondent's employees. Warner Onstine, a truck driver employed by the respondent, testi- fied that during the strike, W. L. Halgren, vice president and division manager of the respondent, addressed a meeting of the respondent's employees. According to Onstine, Halgren stated that he had for- merly belonged to a union but "found that it wasn't doing him any good so he dropped out," and that those who joined the Union "would always be truck drivers and laborers and never have any chance of advancement." Halgren admitted that he addressed the employees during the strike when the respondent's trucks were being "forced to the curb, and the boys were having a little trouble," but stated that he "just discussed the situation in general" and did not mention having belonged to a union or otherwise discussing it. We are convinced and find, as did the Trial Examiner, that Halgren made the statements substantially as attributed to him by Onstine. Lawrence Brinkman, also employed as a truck driver, testified that in 1937 and 1938, during the period in which the Union succeeded in organizing the Grand Forks employees of the respondent, David C. Cook, general manager of the Fargo branch, advised him not to join the Union and told him that he would be paid as much as any union man received "regardless of what wages," and that "we were better off without it, that we would be getting the same, be money ahead as to be paying out dues, and we would only be working for one party, things like that." Stanley Jones, another truck driver, testi- fied that shortly after the 1937 strike Cook expressed his appreciation of the "way that the boys had stood up to it, being loyal to the company, and that we would reap our rewards for doing so." Jones further testified that in November 1939, at one of the meetings reg- ularly held six or seven times a year, Cook stated that the employees "were getting as good as the union could give us and besides, that we didn't have to pay tribute to an outsider." Warner Onstine also testified that since 1937, at the employee meetings, Cook and the other "bosses" had been talking against the union "pretty strong," and that in 1939 Cook told the employees that it would be "pretty hard for us to be loyal to two groups, that is, such as the union and Gamble= Robinson Company at the same time." Seymour Anderson, who was employed as "night banana man" likewise testified that at a meeting of the employees in the summer or fall of 1938 Cook stated that "we could save that money because he could get us whatever a union could GAMBLE-ROBINSON COMPANY 355 get us." Ernest Remboldt and Carroll Dietz, hereinafter found to have been discriminatorily discharged, testified that at 'the time they were employed Cook questioned them concerning their attitude toward unions, Dietz stating that Cook further told him that "all the boys were very well satisfied there without belonging to any ..." Cook testified that pursuant to instructions from his su- periors that "we had no rights with reference to talking to the boys, whether they wanted to join a union or not, and that we should be very careful not to make any commitments," he had not at any time since January 1, 1937, made any reference to union activities at the regular employee meetings. He further testified that other than a statement to Dietz that it made no difference to him whether Dietz joined "the Elks or any other lodge," and a response to Bill Henry that he could not advise him as to his union activities, he had not discussed the Union with any of the employees. Cook did not other- wise specifically deny any of the statements above attributed to him and we find, as did the Trial Examiner, that he made them substan- tially as testified to by Brinkman, Onstine, Jones, Remboldt, and Dietz. On Sunday, February 18, 1910, 11 of the 21 warehouse employees and truck drivers employed by the respondent, including William Henry, night foreman of the warehouse, joined the Union, and the following day appeared at work wearing union buttons. Henry testified that 3 or 4 days later George Putz, day foreman of the warehouse, advised him that he did not believe in the Union and did not think it "right" that Henry should join inasmuch as he was a foreman and the night foreman at the Grand Forks branch had not joined the Union. Onstine and Jones, employees referred to above, testified that the day after they joined the Union Putz also admon- ished them for so doing. Onstine testified that Putz inquired why he had joined the Union and what he thought he would gain by it, and advised him that the respondent if it chose could "close the house" and "pull those trucks off the road." Jones testified that when he replied affirmatively to Putz's question as to whether he had joined the Union, Putz told him that he would now "have to work real hard" and that there would not be "any more coffee for you boys," referring to the respondent's customary serving of coffee to its employees in the morning and afternoon. Putz did not testify and we find, as did the Trial Examiner, that he made. the statements substantially as attributed to him by Henry, Onstine, and Jones. The respondent contends in its exceptions and its brief that in ex- hibiting hostility to the Union as set forth above, Halgren, Cook, and Putz were expressing their personal views and were acting without authority from the respondent. Lack of authorization, however, does 450122-42-vol. 33-24 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not relieve the respondent of responsibility for the anti-union activi- ties of its supervisory employees where, as here, the respondent took no effective steps to prevent their occurrence.2 Nor is there merit in the respondent's further contention that the evidence fails to establish that its employees were affected by or conscious of any interference,. restraint, or coercion, from, the acts and statements complained of. In Matter of Montgomery Ward and Company,,, we answered a similar contention as follows : It is sufficient that the conduct which constitutes the gravamen of the unfair labor practice normally results in interference, re- straint, and.coercion; it is immaterial that the prescribed conduct does not produce the desired result. The respondent's invasion of the field of union activity which the Act reserves as a matter of right to the employees is in itself an unfair Tabor practice. We find that by the activities of Halgren, Cook, and Putz, as out- lined above, in disparaging the Union and in questioning, warning, and threatening employees with respect thereto, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discriminatory discharge and lay-off Carroll M. Dietz was employed by the respondent on August 6,1937, as a warehouseman, in which capacity he was continuously employed until his discharge on April 14, 1940. From December 1933 to April 1937, prior to his employment by the respondent, Dietz had worked as a shipping clerk for one H. L. Haines, who operated a grocery store at Missoula, Montana. Dietz had been discharged by Haines for the theft 2 In Swift & Company v. National Labor Relations Board, 106 F. (2d) 87 ( C. C. A. 10), enforcing as modified Matter of Swift & Company, a corporation and Amalgamated Meat Cutters and Butcher Workmen of North America , Local No. 641, et al., 7 N. L. R. B. 269, the court disposed of a similar defense, stating : While the evidence showed that Middaugh , the plant manager, and Young, the plant superintendent , repeatedly warned against violations of the National Labor Relations Act and solicitation of union membership on petitioner's premises during working hours , they took no effective means to stop repeated violations of the Act. Furthermore , with respect to the acts of the supervisory foremen, the doctrine of respondeat superior applies and petitioner is responsible for the actions of its super- visory foremen, even though it had no actual participation therein. See also National Labor Relations Board v The A S. Abell Co., 98 F. (2d ) 951 (C. C. A. 4), enforcing as modified Matter of The A. S. Abell Company, a corporation and International Printing and Pressmen's Union, Baltimore Branch, Baltimore Web Pressmen 's Union, No. 31, 5 N. L. R. B. 644; Titan Metal Manufacturing, et al. v. N. L. R. B., 106 F. (2d) 254 (C. C. A. 3), enforcing Matter of Titan Metal Manufacturing Company and Federal Labor Union No. 19981 , 5 N L. R. B. 577 ; International Association of Machinists V. N L. R. B, 311 U. S. 72, aff'g 110 F. (2d) 29 (App D C.), enf'g Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No 459, 8 N. L. R B. 621. ,,'Matter of Montgomery Ward and Company and Warehouse Employees' Union No. 20,297 affiliated with the A . F. of L., 17 N. L. R. B., 191. GAMBLE-ROBINSON COMPANY 357 of money and merchandise in restitution of which Dietz had given Haines his promissory note for $500. Shortly after entering the respondent's employ, Dietz was required to fill out an application for bond in conformity with the respondent's regulations that all employees be bonded. Dietz testified that when he received the application he went to Cook, the general manager, and told him the facts concerning his trouble with Haines and asked what he should do. According to Dietz, Cook replied that the incident was a "black blot" on Dietz's name, but that by coming to him and "telling him the thing straight through," he would have more confidence in Dietz, and advised Dietz to fill out the application as well as he could. Dietz did so, listing Haines as a former employer. Several weeks later Dietz received a letter from Haines inclosing an inquiry from the bond- ing company and asking what Dietz wished him to do about it. Dietz testified that he again consulted Cook, who told him that he had made a mistake in giving Haines as a reference, but suggested that Dietz write Haines to the effect that if Haines "felt that he could conscienti- ously return this inquiry to the bonding company" it would be greatly appreciated. Cook testified that in telling him of his difficulty with Haines Dietz stated that he had been wrongfully accused, that he had not taken any merchandise from Haines, and that he "was sort of a victim of circumstances." In view of Cook's subsequent action, as hereinafter set forth, in reporting to his superiors Dietz's admission of the cause of his prior discharge, we credit Dietz's testimony and find, as did the Trial Examiner, that in the fall of 1937, prior to the ap- proval of his bond, Dietz told Cook the principal facts regarding his trouble with Haines. We also find, as Dietz testified, that Cook advised him and commended him for his frankness. In January 1938 Dietz, according to his testimony, asked Cook if he had heard anything further from the bonding company. Cook replied that he had not, adding that although he had some difficulty over the matter, it was "o. k. now." Dietz further testified that he' told Cook that he had developed an inferiority complex over the whole thing and that Cook replied, "You don't need to have at all . . . I trust you more than I do any man on the night crew." Cook's testimony concerning the incident was limited to a denial that he told Dietz that he had had trouble in connection with his bond. We find, as did the Trial Examiner, that Cook made the statements substantially as at- tributed to him by Dietz. Dietz was one of the 11 employees who, as stated above, joined the Union on February 18, 1940, and went to work that night wearing his union button. Dietz testified that as he was going off shift the following morning he met Foreman Putz who asked him, "what did you do it for?" When Dietz replied that the night crew felt that 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they had been working nights for a long time, whereas some new men had been hired and given better jobs on the day crew, Putz said, "I will tell you, up to now you fellows have had it pretty much your own way, but from now on it is going to be hell to pay." As already stated, Putz did not testify. The Trial Examiner credited Dietz's testimony and we find that Putz made the remarks above attributed to him by Dietz. Three or four days later, according to the testimony of Dietz, Cook approached Dietz while working and said, "Well, what have you got to say to me." When Dietz replied, "nothing that I know of," Cook told him, "I have just had tears in my eyes, I have information that your bond won't go through." Dietz then requested the name of the bonding company, and Cook replied that he did not•know the name. Dietz further asked Cook if he had any reason to doubt his honesty, and received a reply in the negative. Dietz testified that on this occasion Cook also told him that he could "join the Kiwanis and anything you want to, but remember, Dave Cook is still the man- ager." A week or so later Dietz, according to his testimony, again asked Cook for the name of the bonding company in order to "get the thing straightened up." Cook reiterated that he did not know the name and that in any event it would be of no avail to write to the bonding company' since it covered men all over the United States and would not be cognizant of Dietz as an individual. Cook then sug- gested that he get another job and use his record with the respondent as "a boost." When Dietz asked, "Well then, ultimately I can expect to be laid off," Cook replied, "no," adding, "Well, I will tell you, Car- roll, you play ball with me and I will • play ball with you." Cook was not questioned concerning the foregoing conversations and his only testimony with reference to any conversation with Dietz relevant thereto was, as stated hereinbefore, that in answer to an inquiry by Dietz as to whether his union membership had changed his status in the plant, he had told Dietz that it made no difference "whether he belonged to the Elks or any other lodge." ' We credit Dietz's testimony and find, as did the Trial Examiner, that after Dietz joined the Union Cook admonished him for so doing, told him that there was some question about his bond, suggested that he find another job, and remarked that if Dietz would "play ball" he would do likewise. The following week, Dietz wrote Halgren, the division manager who had been in Florida since the latter part of January 1940 and advised him of the membership acquired by the Union among the respondent's employees during Halgren's absence. About March 1, 1940, Halgren returned from Florida and requested Cook to give him the names of the employees who had joined the Union. Cook did so, basing his information upon a check of the employees made after they first GAMBLE-ROBINSON COMPANY 359 appeared at work wearing union buttons." Cook also advised Halgren for the first time of the difficulty in which Dietz had been involved during his previous employment with Haines. Cook and Halgren thereupon decided to write to J. S. Kreitzberg, the respondent's branch manager in Missoula, to investigate the circumstances surrounding Dietz's discharge by Haines. In response to his inquiry, Cook received from Kreitzberg a letter dated March 13, 1940, reading in part as follows : Your letter of March 11th just received in reference to Carroll M. Dietz. This party did work for-H. L. Haines clerking, in one of his retail stores, in fact I knew this party myself. His record with Haines is very bad, at the time he left Haines employ I heard he had been caught stealing. I just had a talk with Mr. Covey, manager and right-hand man for Harry Haines, and he confirmed this report. He stated this party stole several hundred dollars from them; how much they will never know, and in addition a lot of merchandise, cigarettes, hams, etc. He says this party is very clever the way he operates, but is nothing but a crook. Do not believe I ever made a report like this on anyone, but if you have this party in your employ, it certainly is to the company's good that you have the correct information at once. Immediately after receiving th above letter Cook conferred with Halgren, who advised him to report the matter to Stanley Corbell, the respondent's personnel manager in the Minneapolis office. Before he saw Corbell, however, Cook forwarded Kreitzberg's letter to J. G. Scott, the respondent's first vice president, who was also in the Minne- apolis office.5 Cook did not see Corbell until April 6, when Corbell came to Fargo to attend a credit conference. At the time Dietz, who had been ill since the latter part of March, was not working." Corbell testified that Cook told him that he was "very much worried; that he had been withholding some information from us at the home office about * On or about March 11 , 1940, the Union , claiming to represent a majority of the respondent's employees , presented a proposed contract to Halgren for his consideration. A few days later Halgren, in response to an inquiry by the Union , stated that be would not discuss the contract, since it was his understanding that the Union did not have a majority membership. On March 15 , 1940, the Union filed charges with the Board alleging the respondent's refusal to bargain. As hereinbefore stated, this charge was dismissed by the Trial Examiner at the hearing upon'motion by counsel for the Board. 6 It is clear that Scott was cognizant of Dietz's membership in the Union , since on or about April 2, 1940, he discussed with a Field Examiner for the Board the possibility of discharging Dietz. The Field Examiner told Scott that he could not advise him what to do but made the observation, with which Scott agreed, that if the respondent discharged Dietz, the Union would undoubtedly regard it as a discriminatory act aimed at the destruction of its alleged majority membership. 360 " DECISIONS OF NATIONAL LABOR RELATIONS BOARD the past record of this man Dietz; that there was some contest or threatened contest on here about that time about organizing a branch; that he realized this information should have been reported in, but wasn't, and he wondered what to do about it." Corbell told Cook to forward Dietz's personnel file to him and not to "rehire" Dietz until he was further advised. Corbell returned to Minneapolis on Monday, April 8, and the following day talked to a representative of the bonding company. Corbell also wrote a letter to the bonding company, setting forth the above-quoted portion of Kreitzberg's letter concerning Dietz and requesting that it notify, the respondent after investigation and consideration whether Dietz's bond would be continued in force. The second week in April, Dietz notified Putz that he would report for work on the night of April 14. On Saturday, April 13, Cook informed Corbell of Dietz's intention to return to work and asked for instructions. Corbell, who had in, the meantime discussed the matter with Scott, told Cook that under no circumstances should Dietz be permitted to return to work. On the afternoon of April 14, Cook went to Dietz's home and informed him that he was discharged under in- structions from the Minneapolis office and that his bond was being cancelled.° The respondent contends that its belated investigation of Dietz was prompted by the disappearance in January 1940 of four packs of play- ing cards and the discovery of other shortages amounting to approxi- mately $1,600 as revealed by the respondent's financial statement for 1939. Cook testified that he first discussed the matter with Halgren in January and, in accordance with Halgren's suggestion, made a local check of the employees, but was unsuccessful in fixing responsibility for the shortages. Cook's testimony concerning the manner in which he "checked" on the employees was vague and unconvincing and while he asserted that he talked to Henry, the night foreman under whom Dietz worked, concerning the shortages, we credit, as did the Trial Examiner, Henry's testimony to the contrary. Cook further testified that he was impelled to disclose Dietz's prior employment record when Halgren upon his return from Florida suggested that Cook also check the refer- ences of the employees. However, as pointed out by the Trial Exam- iner, it is significant that although Cook allegedly had discussed the shortages with Halgren in January he did not deem it necessary to advise Halgren about Dietz until March, shortly after Dietz had, joined the Union. Cook did not suggest, nor does the respondent con- ' It is noted that the respondent at this time had no definite information that the bond was being cancelled . The letter from the bonding company to the respondent advis- ing that Dietz ' s bond had been cancelled was dated April 18, 1940 , 4 days after Dietz was discharged , and was received by Corbell on or about April 20, 1940. Corbell, how- ever, testified that Dietz was discharged on the basis of the information received from Kreitzberg and that the respondent merely wanted the cancellation of the bond "as corroboration." GAMBLE-ROBINSION COMPANY 361 tend, that Dietz was other than an honest and capable employee during his more than 21/2 years of service with the respondent. In view of the fact that Cook admonished Dietz for joining the Union and revived the bond incident with the inference that it would be forgotten if Dietz would "play ball," i. e. abandon the Union, we find, as did the Trial Examiner, that Cook disclosed Dietz's past record because he joined the Union. We are also convinced, and further find, that Halgren did not deter- mine to investigate Dietz because of the alleged shortages, as the respondent contends, but rather joined with Cook in procuring a plausible justification for Dietz's discharge with the intention of thus destroying the majority membership then claimed by the Union. To find otherwise would be to ignore the anti-union statements made by Halgren in addressing the respondent's employees during the 1937 strike and the fact that at approximately the same time as Cook divulged his information regarding Dietz, Halgren had requested Cook to furnish him with the names of the employees who had joined the Union.7 The respondent does not mention the part thus played by Halgren, its vice president and division manager, in the investigation of Dietz, and refers only to Cook in maintaining that whatever may have been Cook's motive in making his disclosure concerning Dietz, it does not affect the fact that Scott and Corbell, who were not shown to be hostile to the Union, determined to discharge Dietz as soon as they learned of his past record. We see no merit in this contention and we are satisfied that the respondent, in discharging Dietz; was impelled by, his union activity. Moreover, the fact that Scott and Corbell appear to have made the actual decision to discharge Dietz does not relieve the respondent of responsibility for the discriminatory conduct of either Cook or Halgren in jointly effecting Dietz's dismissal. We find that Carroll M. Dietz was discharged on April 14, 1940, and was refused reinstatement because of his.membership and activity in the Union, and that by his discharge the respondent has discrim- inated in regard to the hire and tenure of his employment,. thereby discouraging membership in a labor organization. We further find that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Ernest Remboldt was employed as a truck driver by the respondent on or about October 1, 1938. He secured his employment through Theodore W. Hoofer, a truck driver employed by the respondent, who was then resigning to operate a hotel at Streeter, North Dakota. 7 We note here Halgren's testimony that when the Union committee asked him if he was ready to talk about the proposed contract, Halgren replied "that there was nothing to talk about ; that it was my understanding that they did not represent the majority of the employees." See footnote 4, supra. 362 DECISIONS OF NATIONAL LABOR- RELATIO BOARD Hoofer, who himself had formerly employed Remboldt as a truck driver, recommended to Cook that Remboldt be given his position. As we have found above, at the time Remboldt was employed Cook questioned him concerning his attitude toward unions, to which Rem- boldt replied that since he had no previous experience with unions he knew nothing about them. Remboldt joined the Union on February 18, 1940, the same day Carroll Dietz and nine other employees became members. On or about April 15, 1940, certain restrictions were placed upon the use of the highways in the vicinity of Fargo which necessitated the "withdrawal from operation of the respondent's trucks. Remboldt was accordingly laid off and, as he testified, was advised by Cook that he would be recalled to work as, soon as the highway restrictions were removed, which would be in about 2 or 3 weeks. About the middle of May, after the restrictions were no longer in force, Remboldt saw Cook and asked him about returning to work. Cook told Remboldt that Hoofer had returned to his former job and that Remboldt would get "back on" when business picked up, but would be given "a different job." 8 When Remboldt protested that it was unfair that Hoofer be given his job, Cook replied that it was understood that Hoofer was to be given his former position with the respondent whenever he became dissatisfied with operating the hotel, and that Remboldt had agreed to this arrangement at the time he was employed. Remboldt denied that any such agreement had been made. The respondent contends, as did Cook above, that at the time, Hoofer resigned to enter the hotel business Remboldt and Hoofer had agreed that Remboldt would relinquish his job if the hotel venture proved unsuccessful and Hoofer desired to return to the respondent's employ. Remboldt, however, denied that he had either made or discussed an agreement of this nature at the time he was employed. Hoofer's testimony on direct examination regarding the alleged understanding concerning his job was,,in part, as follows: Q. And what was said by you to Mr. Cook, and what did he - say? A. Well, he says that he hates to see me go, and that if I ever feel that I would like to come back, why I should call him first, he would like to have me work for him. Q. Was anything else said about you getting your job back? A. Well, •I wouldn't have to be afraid of getting it, because I could always get it back. 8 Hoofer was reemployed about April 20, and worked in the warehouse until the removal of the road restrictions permitted him to return to his formes trucking job. GAMBLE-ROBINSON COMPANY 363 Q. Was anything more said by you to Mr. Cook about this chap who was going to take your place, if you didn't like the hotel business? A. Well, I says, if I didn't like it, why I would try to come back and take my job back again. In response to cross-examination Hoofer further testified as follows : Q. Well, what did you tell him [Remboldt] about work; did you say, "There is an opening and if you would like it, I will help you get it?" A. I told him that I was quitting and that he could go in my place. Q. And is that about all you said to him? A. That is all. Q. Now you were present when you introduced Mr. Remboldt and Mr. Cook and told Mr. Cook, "there is the man I spoke to you about" and Cook said he would hire Remboldt, weren't you? A. That is right. Q. Did Mr. Cook say anything to Mr. Reinboldt at that time about it being temporary job or did you say anything to him about it being a temporary job? A. Well, it was understood between the three of us right there that I could have my job when I wanted it. Q. Was anything said about that? " A. No, there was nothing definite, because I didn't know how the hotel would pan out. * * * * * * * Q. What gave you the impression that you would get the same job back if you decided to quit the hotel business? A. Because that is the job I wanted back. Q. Well, you don't always get the job you want, do you? A. I did. Q. Well, I know, but what gave you the impression at that time that you could have the job that you wanted back whenever you wanted it? A. I don't know. Hoofer further testified that in February he made application for his job in a letter to Cook, to which, under date of February 9, 1940, Cook replied as follows : Yes, Ted, we have been thinking of you frequently and are very pleased to know that you will be interested in coming back with us. It will be a matter of another month before we will 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have things opening up so that we will be operating in full force. -We would rather you wait until then if you can. We might tell you that if things break a little sooner than we expect we will be more than anxious to get ahold of you. It is obvious that the foregoing reply was not made in response to a request for reinstatement to any particular position nor with refer- ence to any such agreement as the respondent contends was made at the time Hoofer resigned. While we do not doubt that Cook told Hoofer that he regretted his leaving and would be glad to reemploy him in the future should the occasion arise, we find, as did the Trial Examiner, that the evidence fails to establish that Cook agreed to dis- charge Remboldt should Hoofer desire to return after his venture in the hotel business, or that Remboldt was ever advised prior to his lay-off that his employment was thus limited. It should be noted that Cook wrote the above letter to Hoofer 9 days before Remboldt joined the Union and prior to the time Cook and Halgren discussed the or- ganization of the `Union and, as we have found above in connection with Dietz's discharge, resolved to prevent it from becoming the bar- gaining representative of the respondent's employees. We further observe that Remboldt was laid off at approximately the same time as Dietz was discharged, and that Hoofer, who did not join the Union, was reemployed 5 days later. This sequence of events, coupled with our finding that Dietz was discharged pursuant to the afore-mentioned determination by Cook and Halgren to undermine the organization already achieved by the Union, lead us to the conclusion that Rem- boldt was likewise laid off and subsequently refused reinstatement to his former position because of his membership in the Union. We find that Ernest Remboldt was laid off on or about April 15, 1940, and was thereafter refused reinstatement because of his mem- bership and activity in the Union, and that by his discharge the respondent has discriminated in regard to the hire and tenure of his employment, thereby discouraging membership in- a labor organiza- tion. We further find that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent 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. GAMBLE-ROBINSON COMPANY V. THE REMEDY 365 We have found that the respondent has engaged in certain unfair labor practices. We will, therefore, order the respondent to cease and desist therefrom and, to effectuate the purposes of the Act, also order the respondent to post notices stating that it will not engage in the conduct from which it is ordered to cease and desist. We have found that the respondent discriminatorily discharged Carroll M. Dietz and laid off Remboldt because of their membership in the Union. With respect to Dietz, the respondent contends, in effect, that his reinstatement is barred because of his admitted prior misconduct. We do not deem it proper, however, to withhold rein- statement solely because of past conduct where reinstatement is other- wise necessary and appropriate to remedy the situation created by the respondent's unfair labor practices. Dietz had given satisfactory service to the respondent for over 21/2 years, and shortly after he was employed had been commended by Cook for his frankness in disclosing his difficulty with Haines. There is no claim that Dietz has engaged in any misconduct since his employment by the respondent. As already stated, the belated investigation of Dietz's past record was made for the sole purpose of procuring an ostensible reason for his dis- criminatory discharge. Under all the circumstances, we believe that Dietz's prior misconduct does not warrant a,denial of reinstatement. We find that the situation resulting from his discriminatory discharge will best be remedied and the purposes and policy of the Act effectuated through his reinstatement. Accordingly, we will order the respondent to offer Carroll M. Dietz and Ernest Remboldt reinstatement to their former positions without prejudice to their seniority and other rights and privileges. We will also order the respondent to make, them whole for any loss of pay they have suffered by reason of the respondent's discrimination by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of the, dis- crimination to the date of the offer of reinstatement, less his net earnings 9 during that period. Upon the basis of the above findings of fact, and upon the entire record in the case, the Board makes the following: 9 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 elsewhere 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, State, county, municipal , or other work-relief projects shall be considered as earnings. See Republic Steel Corporation v. National Labor Rela- taons Board, 311 U. S. 7. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. General Drivers Union Local 116 of the International Brother- hood of Teamsters, Chauffeurs, Stablemen & Helpers of America, affiliated with the A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Carroll M. Dietz and Ernest Remboldt, thereby discouraging membership in General Drivers Union Local 116 of the International Brotherhood of Teamsters, Chauffeurs, Stablemen & Helpers of America, affiliated with the A. F. of L., 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 in Section 7 of the Act, the re- spondent 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, Gamble-Robinson Company, Fargo, North Dakota , and its officers, agents, successors , and assigns, shall. 1. Cease and desist from : (a) Discouraging membership in General Drivers Union Local 116 of the International Brotherhood of Teamsters , Chauffeurs, Stablemen & Helpers of America, affiliated with the A. F. of L ., or any other labor organization of its employees , by discriminating in regard to their hire and tenure of employment or any terms or conditions of their 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 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) Offer to Carroll M. Dietz and Ernest Remboldt immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; GAMBLE =ROBINSON COMPANY 367 (b) Make whole said Carroll M. Dietz and Ernest Remboldt for any loss of pay they may have suffered by reason of the respondent's dis- crimination against them by payment to each of them 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 such offer of reinstate- ment, less his net earnings during said period. (c) Immediately post notices to its employees in conspicuous places throughout its plant at Fargo, North Dakota, and maintain such notices for a period of at least sixty (60) days from the date of posting, stating (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that it will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that its employees are free to join and remain members of General Drivers Union Local 116 of the International Brotherhood of Teamsters, Chauffeurs, Stablemen & Helpers of America, affiliated with the A. F. of L., and that it will not discriminate against any employee because of member- ship or activity in said labor organization; ' (d) Notify the Regional Director for the Eighteenth Region in writing within ten (10) days from the date of -this Order what-steps the respondent has taken to comply herewith.