Roemer Bros. Trucking Co., Inc., Roemer Garage, Inc.Download PDFNational Labor Relations Board - Board DecisionsJul 12, 193913 N.L.R.B. 549 (N.L.R.B. 1939) Copy Citation II*% - w 8 if In the Matter of ROEMER BROS. TRUCKING CO., INC.,' ROEMER GARAGE, INC.' and INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE #340 Case No. C-680.Decided July 12, 1939 Trucking Indu8try-Employer : companies commonly owned, controlled, and managed , and operated as a single , unified and integrated enterprise-Interfer- ence, Restraint , and Coercion-Discrimination : discharge , union membership and activity , knowing or believing that conversation concerned the Union- Reinstatement-Back Pay: awarded , date of discharge to date of offer of rein- statement , excluding period from date of Intermediate Report to date of Order. Mr. Richard J. Hickey, for the Board. Cox and Walburg, by Mr. William H. D. Cox, of Newark, N. J., for the respondents. Isserman , Isserman, Rothbard cfi Kapelsohn, by Mr. Sol D. Kapel- 8ohn and Mr. Abraham J. Isserman, of Newark, N. J., for the Union. Mr. William Logan Donnel, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Association of Machinists, Lodge #340, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its complaint, dated January 26, 1938, against Roemer Bros. Truck- ing Co., Inc. and Roemer Garage, Inc., both of Newark, New Jersey, herein collectively called the respondents, alleging that the respond- ents had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied 1 The captions in the complaint and other pleadings refer to the respondents as "Roemer Brothers Trucking Company, Inc ." and "The Roemer Garage , Inc." Exhibits Introduced in evidence show the true names of the respondents to be as set forth above. At the close of the hearing a motion to amend the complaint to conform to the proof was granted as to names. 13 N. L. R. B., No. 63. 549 187930-39-vol. 13-36 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by notice of hearing, were duly served upon the respondents and the Union. In respect to the unfair labor practices, the complaint alleged in substance (1) that the respondents are commonly owned and con- trolled and are operated as a single, unified and integrated enter- prise; (2) that on or about September 25, 1937, Roemer Garage, Inc. discharged and thereafter refused to reinstate Robert Elbrecht, an employee of Roemer Garage, Inc., for the reason that he had joined and assisted the Union and had engaged in other concerted activities for the purposes of collective bargaining and other mutual aid and protection; and (3) that by this discharge of and refusal to reinstate Elbrecht, and by various other acts, such as urging and warning its employees to refrain from becoming or remaining members of the Union and threatening them with discharge and other reprisals for so doing, Roemer Garage, Inc. interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On February 3, 1938, the respondents filed their joint answer, denying that they were engaged in interstate commerce within the meaning of the Act and that they had engaged in the alleged unfair labor practices, and stating affirmatively that Elbrecht was discharged for inefficiency. Pursuant to notice, a hearing was held at Newark, New Jersey, on March 31, and April 1 and 2, 1938, before Harold Stein, the Trial Examiner duly designated by the Board. The Board, the respond- ents and the Union were represented by counsel and participated in the hearing. During the course of the hearing, the Trial Examiner made a number of rulings on motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the close of the hearing, the respondents moved to dismiss the complaint as to Roemer Bros. Trucking Co., Inc., on the ground that the evidence showed that this respondent was not Elbrecht's employer. The respondents also moved to dismiss the complaint as to Roemer Garage, Inc., on the ground that the evidence adduced at the hearing did not sustain the allegations of the complaint concerning the com- mission of unfair labor practices by this respondent. The Trial Examiner reserved decision on these motions and disposed of them by the recommendations in his Intermediate Report. On May 16, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the respondents and the ROEMER BROS. TRUCKING COMPANY 551 Union, finding that the respondents had not engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act, and recommending that the complaint be dismissed. On June 8, 1938, the Union filed exceptions to the Intermediate Report. On December 15, 1938, pursuant to notice duly served upon all the parties, oral argument, in which counsel for the respondents and the Union participated, was had before the Board in Washington, D. C. The Board has reviewed the Union's exceptions to the Intermediate Report and hereby sustains them in so far as they are directed at the Trial Examiner's findings and conclusions that the respondents did not engage in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act, and his recommendation based thereon. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS A. Roemer Bros. Trucking Co., Inc. Roemer Bros. Trucking Co., Inc., herein called the trucking com- pany, is a New Jersey corporation organized in 1919. Its principal office and place of business is located in Newark, New Jersey. It is engaged in the business of contract trucking. In 1937 the gross volume of its business was $547,000. At the time of the hearing, it owned a fleet of 87 trucks, which it operated in New Jersey, New York, Connecticut, Massachusetts, and Pennsylvania, 'during 13,625 of the 26,153 available truck days 2 during the year 1937. Interstate hauls represented 4,563, or 331/3 per cent, of the total truck days worked. Intrastate transportation of shipments which were delivered to the trucking company's point of pick-up by interstate carriers accounted for an additional 5 per cent of the total truck days worked. The trucking company has a certificate of the Commonwealth of Pennsylvania authorizing it to haul alcoholic beverages within that Commonwealth. Fifteen of its trucks carry licenses of the State of Connecticut, and six of its trucks carry licenses of the Common- wealth of Massachusetts. The trucking company has also secured a license from the Interstate Commerce Commission under the so- called "grandfather's clause," preserving its rights, acquired by previous transportation, to haul into and between Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, and the District of Columbia. 2 A truck day varies from 8 to 12 hours in length. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the year 1937 the trucking company purchased, at about $5,200 apiece, 5 trucks, which were delivered to it from a factory located at Allentown, Pennsylvania. Charles T. Roemer, the only salesman for the trucking company, solicits business in Connecticut, Pennsylvania, New York, and Mas- sachusetts as well as in New Jersey. The principal accounts of the trucking company are Christian Feigenspan Brewing Company, for which coal and beverages are transported, and Koppers Company, Seaboard Division, for which coke is hauled. Both of these businesses are seasonal. During the summer the trucking company uses 30 to 40 trucks hauling for the Brewing Company, 8 to 10 trucks for the Koppers Company. Dur- ing the winter the trucking company uses 30 to 40 trucks hauling for the Koppers Company, and 8 to 10 trucks for the Brewery Com- pany. To serve these two customers with a minimum of equipment, the trucking company each spring and fall changes the bodies upon a number of its trucks, in the spring putting on bodies suitable for hauling beverages, and in the fall replacing these with bodies suitable for hauling coke. B. Roemer Garage, Inc. Roemer Garage, Inc., herein called the garage company, is a New Jersey corporation organized in 1926. It operates two garages and is engaged in the business of storing, servicing, and repairing motor vehicles. Most of its repair work is done for the trucking company. At 82 Plane Street, Newark, New Jersey, the garage company op- erates a public garage, capable of storing 100 cars. It employs four men there, and services equipment of the trucking company. At 1344 Thomas Street, Newark, New Jersey, the garage company op- erates a garage solely for the storage, maintenance, and servicing of the 87 trucks of the trucking company. At this location, it em- ploys a maintenance superintendent, a dispatcher, two painters, five mechanics, and three floormen-12 persons in all, the two first-men- tioned being supervisors. The facts set forth above show that the trucking company's activ- ities, the interstate nature of which we have previously described, are responsible for most of the garage company's business. C. The interrelationship of the respondents The officers and stockholders of the respondents are set forth below : ROEMER BROS. TRUCKING COMPANY 553 Roemer Bros . Trucking Co., Inc. Roemer Garage, Inc. Name of Stockholder Office held Sharesheld Office held Shares held Charles T. Roemer-.---.--- President------------------- 238 President------------------- 623 Clarence J. Roemer.....--. Secretary and Treasurer--.-- 238 Secretary and Treasurer----- 623 Lillian D. Roemer (-------- Vice President-------------- 3h 1 Pauline Roemer 2--.------- ------------------------------ Vice President-------------- 1 John J. Murphy ----------. ------------------------------ Maint. Supt---------------- 0 Unnamed---------- -------- ------------------------------ 21 ------------------------------ 0 I Mrs. Charles T. Roemer. A Mrs. Clarence J. Roemer. The principal office and place of business of both respondents is located at 82 Plane Street. These premises are owned by the garage company. During 1937 the garage company charged the trucking company $1,300 for the use of this office space. One office staff here serves both respondents with the same equipment. The premises at 1344 Thomas Street, which the garage company operates solely for the use of the trucking company, were leased in March 1935, for 5 years by the trucking company from the Jefferson' Terminal Corporation. There is no evidence that the garage company has subleased these premises from the trucking company or pays the latter any rent for the use of this property. The garage company uses from 6,000 to 8,000 gallons of gasoline a month. All the gasoline used by both respondents, amounting to 30,000 gallons a month, is purchased by the trucking company. Book entries are made by the respondents' common bookkeeper against the garage company for the gasoline supplied to it by the trucking com- pany. All labor costs at the 1344 Thomas Street plant, including the pay roll, are charged by the garage company against the trucking company monthly, by direct journal entries. These intercorporate charges are adjusted by an annual accounting, at which time alone does any money change hands between the two corporations. Clarence J. Roemer and his brother, Charles T. Roemer, transact all the business of the respondents. Charles T. Roemer is in charge of the sales of the trucking company. Clarence J. Roemer supervises the maintenance and the operation of the trucks and garages and the conduct of the office. Certain facts concerning the employment of Robert Elbrecht further illuminate the relationship between the respondents. Elbrecht worked at the 1344 Thomas Street premises from February 3, 1936, to Septem- ber 25, 1937, as a mechanic. All his work was done on trucks of the trucking company. His pay checks were drawn against the account of Roemer Garage, Inc. On each of his checks a check-protecting device belonging to the trucking company etched the sum payable and 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the name of the trucking company. In the envelope containing each check Elbrecht received was a printed slip reciting deductions made for old age pension purposes. On all these slips the name of the truck- ing company is printed or stamped as his employer. As an incident of his employment, Elbrecht obtained group life insurance. His in- surance policy recites that the lives of "certain employees of Roemer Bros. Trucking Co. Inc." are insured. After his discharge, Elbrecht was given a recommendation, signed by Clarence J. Roemer upon the letterhead of the trucking company, stating that Elbrecht had been in the employ of the trucking company for the past 2 years as a mechanic. We find that the respondents are commonly owned, controlled, and managed, and are operated as a single, unified and integrated enter- prise.s H. THE ORGANIZATION INVOLVED International Association of Machinists, Lodge #340, is a labor organization affiliated with the American Federation of Labor, ad- mitting to membership employees of the respondents. III. THE UNFAIR LABOR PRACTICES Robert Elbrecht worked as a mechanic at the Thomas Street garage from February 3, 1936, until his discharge on September 25, 1937. On August 10, 1937, Elbrecht joined the Union. He was the only member 4 of the Union among the respondents' employees, and after joining the Union until he was discharged he constantly attempted 8Matter of Consolidated Edison Company of New York, Inc. and United Electrical and Radio Workers of America, affiliated with the Committee for Industrial Organization, 4 N. L. R. B 71 ; Matter of Todd Shipyards Corporation , Robins Dry Dock and Repair Co., and Tietjen and Lang Dry Dock Co . and Industrial Union of Marine and Shipbuilding Workers of America, 5 N. L. R. B. 20; Matter of Waggoner Refining Company, Inc., and W. T. Waggoner Estate and International Association of Oil Field , Gas Well and Refinery Workers of America; Matter of Waggoner Refining Company, Inc, and W. T. Waggoner Estate and Waggoner Employees Federation, 6 N. L. R. B. 731 ; Matter of Art Crayon Company, Inc., and its affiliated company, American Artists Color Works, Inc ., and United Artists Supply Workers, 7 N. L. R. B . 102; Matter of Bloedel-Donovan Lumber Mills and Columbia Valley Lumber Company and International Woodworkers of America, Local No. 46, 8 N. L R. B. 230; Matter of Kling Factories , an assumed title used by D. D. Kling, A. J. Kling, and C. E. Helgren in the management of Chautauqua Cabinet Co , Brockton Furniture Co., Herrick Furniture Co., John A. Kling ( successor to Crandall Panel Co.), and Frewsburg Furniture Co., and Locals 12, 13, 14, and 15, Organized Furniture Workers of Jamestown , N. Y., 8 N. L. R B. 1228; Matter of Swift and Company, Iowa Packing Company and Newton Packing Company, Corporations , and Local 630, Amalgamated Meat Cutters and Butcher Workmen of North America and Detroit and Wayne County Fed- eration of Labor, 10 N L R. B 991; Matter of Waterman Steamship Corporation and Commercial Telegraphers Union, Marine Division, A. F. of L., 10 N. L . R. B 1079. + Curtis Abel, a mechanic , joined the Union shortly before he left the respondents' employ in November 1936. The respondents mistakenly believed that Abel was a union member when he first entered their employ in 1934. Abel joined the Union solely in order to obtain a job elsewhere , and made no effort to organize the respondents ' employees. ROEMER BROS. TRUCKING COMPANY 555 to persuade the other three mechanics on the day shift at the garage to become members of the Union.5 Shortly before Elbrecht's dis- charge, one mechanic had agreed to join, one had indicated his will- ingness to do so, and the third was undecided. After his discharge the three mechanics lost interest in the Union. On October 4, 1937, 9 days after Elbrecht's discharge, the respondents hired another me- chanic, one McClane, who is still employed at the garage. The respondents contend that Elbrecht was discharged for three reasons. First: The respondents assert that Elbrecht was discharged because of a decrease in their business. For over a year, until the spring of 1937, Elbrecht did general re- pair work on trucks at the garage. During the spring of 1937 for the first time he was assigned to the special work termed protective maintenance, which was designed to reduce road failures by periodic inspection of trucks to detect and repair or replace defective parts. Inspection of the entire fleet of 87 trucks consumed, at the most, only 50 per cent of Elbrecht's time, each inspection of the fleet taking about 5 weeks, and approximately 2 months elapsing between each such inspection. The rest of his time Elbrecht still spent on general repair work. The respondents assert that toward the end of September 1937, their truck haulage decreased, and that therefore the amount of protective maintenance work then diminished. Clarence Roemer, hereinafter referred to as Roemer, testified that because of this decrease in truck haulage, after having ascertained from John Murphy, superintendent of maintenance at the garage, that Elbrecht was the only unmarried mechanic employed by the respondents, he ordered Elbrecht dis- charged, although Elbrecht admittedly was senior in length of service to John Mattiola, one of the mechanics who had been employed for about 10 months at the garage. The following table shows the extent of the respondents' business during this period : Month Truck-days Truck-days Truck -days Per cent Available Busy Idle Idle July 1937----------------------------------------- 2,210 1 , 230 980 43 33 August 1937-------------------------------------- 2,210 1 , 155 5 1 , 054 5 47 7 September 1937- ---------------------------------- 2,125 1 , 224 901 42 4 October 1937------------------------------------- 2,210 1,136 5 1,073 5 48.6 For the entire year 1937 -------------------------- 26,153 13, 625 12, 558 48 The above table shows that although the respondents' hauling business declined in October as compared with September, this de- 5 The painters , truck drivers, and helpers employed by the respondents are all members of the other unions. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cline was but slightly more than that suffered in August when the respondents did not discharge Elbrecht and was but a fraction below the respondents' average business for the entire year. Moreover, the respondents admit that since Elbrecht's discharge, protective main- tenance work is still done, although asserting that the amount of it has diminished. Either George Elliott, a mechanic employed at the garage prior to Elbrecht's discharge, or McClane, the mechanic hired 9 days after Elbrecht's discharge, now performs protective maintenance work. For over a year before he was assigned to protective maintenance work, and even while he was assigned to this work, Elbrecht did general repair work at the garage. The evidence is clear that de- spite any slight decrease in protective maintenance work there was ample general repair work at the time of his discharge to require Elbrecht's services. His discharge occurred at the very time when the respondents were making the seasonal change of 20 truck bodies, hereinbefore described. The' work, which lasts for 2 months, had been begun in September. Indeed, for 2 weeks prior to his dis- charge, Elbrecht had been engaged in changing truck bodies and not on protective maintenance work.a Moreover, none of the other mechanics employed at the garage on September 25, 1937, have been discharged or laid off since that date, and on October 4, 1937, the respondents hired another mechanic, one McClane, who is still employed at the garage. Murphy informed Elbrecht of his discharge at noon on September 25. Murphy testified that he refused to give Elbrecht any reason for this action, referring him to Roemer for an explanation. On September 27 Elbrecht saw Roemer, who informed him that he was discharged because he was the only unmarried mechanic in the shop and because the respondents were cutting down expenses and were going to turn in 17 trucks and lay off another man. According to the testimony of the respondents' witnesses, Murphy and Roemer, no other reasons were given Elbrecht for his discharge. There is no evidence, nor did Roemer assert at the hearing, that he ever contemplated discharging another employee or turning in 17 trucks, and in fact the respondents did not do so. On October 29 and November 2, according to the testimony of Murphy, he informed one James Brinkerhoff, whom he believed to be a prospective employer of Roemer testified that on 2 of the 3 days previous to Elbrecht 's discharge he had seen the latter engaged in protective maintenance work, and that the changing of the truck bodies did not start until October first. Murphy testified that in 1937 the changing of the truck bodies began in September. Murphy, and not Roemer, assigned Elbrecht to protective maintenance work on the basis of records showing the miles traveled by the trucks since their last inspection . Under these circumstances , we are of the opinion, and we find , that Elbrecht's testimony that, he was engaged in changing truck bodies for 2 weeks prior to his discharge is to be credited. ROEMER BROS . TRUCKING COMPANY 557 Elbrecht that the latter had been discharged because the respondents had had "some trouble" with him. Murphy made no reference to a decrease in business as the cause of Elbrecht's discharge. Similarly, the respondents' answer contains several reasons for Elbrecht's dis- charge but does not mention a decline in business as one of the causes thereof. At the hearing, however, the respondents' assertion of, and failure to assert a decline in business as a reason for Elbrecht's dis- charge is not explained by any testimony in the record and casts further doubt upon the validity of this alleged reason. We find that the respondents' contention that a decrease in business caused Elbrecht's discharge is untenable. We are of the opinion that Roemer's statements to Elbrecht on September 27 were deliberate fabrications designed to conceal the respondents' true motives. Such concealment casts great suspicion upon these motives. Second: The respondents assert that Elbrecht's discharge was caused by his inefficiency and the fact that he failed to do his work properly. The only complaints concerning Elbrecht's work relate to protec- tive maintenance. His first year's work with the respondents on other tasks admittedly was satisfactory. Indeed, he received a raise of 5 cents an hour in December 1936. Moreover, of the 4 mechanics on the day shift, Elbrecht was chosen to perform protective maintenance work. Nor were there any complaints concerning his work, apart from protective maintenance, during the year 1937, and it must be remembered, as previously described, that at least half of his work including the last 2 weeks of his employment, was not protective maintenance. The respondents introduced in evidence a list of 17 truck motor failures allegedly caused by Elbrecht's faulty inspection. Roemer first testified that this list represented only a portion of the failures attributed to Elbrecht's inefficiency, but later he retracted this state- ment and stated that this list comprised all the failures which the respondents claimed were attributable to Elbrecht. Roemer also testi- fied that he had documentary evidence to substantiate all 17 failures. Later he retracted this testimony and stated that he had documents in the form of six repair bills paid by the respondents to substantiate only six of the failures.7 The evidence introduced at the hearing is completely inconclusive concerning Elbrecht's responsibility for these 17 motor failures. In the first place, the evidence establishes that, although the defects listed as causes of the 17 road failures can in certain instances be detected by inspection, in many cases they can- not.8 The evidence does not show whether or not these road failures 7 At least one bill relates to a breakdown not on the respondents' list. 8 Elbrecbt , of course , did not tear down the trucks or motors in inspecting them. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were due to defects Elbrecht should have detected. There is no evi- dence that either Murphy or Roemer ever investigated these road failures in an effort to determine whether Elbrecht was responsible for them-a step that they ordinarily would have taken before dis- charging an otherwise competent mechanic. Furthermore, Elbrecht inspected the trucks only when ordered to do so by Murphy, who kept the mileage records. The list contains no mileage figures for the pe- riod between Elbrecht's inspection of the trucks and their breakdowns and, therefore, it is impossible for us to determine whether the failures were caused by Elbrecht's original faulty inspection or Murphy's negligence in not having the trucks inspected often enough. Also, for only five of the listed failures did the respondent give the date of the alleged inspection by Elbrecht. In two cases the breakdowns occurred approximately 2 months after Elbrecht's inspection ; in oi^e case the inspection date given is subsequent to the date of the breakdown. The list also shows that in several cases the same truck broke down be- cause of approximately the same defect within a very short period of time, and there is no evidence to indicate whether the breakdowns subsequent to the original one were caused by Elbrecht 's original faulty inspection or subsequent faulty repair work done by other mechanics. Finally, Murphy testified that the trouble with Elbrecht's work began about 4 weeks before the latter's discharge. The respond- ents' own documentary evidence shows that only 5 of the 17 listed fail- ures occurred during this period.9 The last road failure attributed by the respondents to Elbrecht occurred on September 8. No reason appears why the respondents, if they discharged Elbrecht for these road failures, waited 2 full weeks, during which there were no complaints concerning his effi- ciency, before taking such action. Moreover, as previously pointed out, the testimony of both Roemer and Murphy is that neither told Elbrecht that inefficiency was a cause of his discharge when the latter questioned them on September 25 and 27. Roemer did not ex- plain his failure to do so. Also, on September 27 Roemer gave Elbrecht a. letter of recommendation which read in part as follows : This will serve to advise that the bearer, R. Elbrecht, has been in our employ for the past 2 year [sic] in the capacity of me- chanic, during which time we have found him to be honest, trustworthy and capable. The statement in the above-quoted letter is inconsistent with Roemer's assertion that he discharged Elbrecht because he attributed Of the 17 failures on the respondents ' list, the first two occurred June 10, two later in June, 6 between July 2 and July 10 , 1 on July 20 , 1 on August 3, 1 on August 19, and the last 4 between September 3 and September 8. ROEMER BROS. TRUCKING COMPANY 559 the 17 road failures to the latter's inefficient inspection. The delay of the respondents in discharging Elbrecht after September 8, and in asserting Elbrecht's inefficiency as the cause of his discharge until long after Elbrecht was discharged, convinces us that this reason is merely an afterthought. In view of the foregoing evidence we give no credence to the testi- mony of Murphy and Roemer concerning alleged rebukes to Elbrecht for his poor work prior to his discharge, and find, in ac- cordance with Elbrecht's testimony, that he did not receive such rebukes. We find that the respondents' assertion that Elbrecht was dis- charged because of inefficiency or the fact that he failed to perform his work properly is untrue. Third: The respondents assert that Elbrecht was discharged be- cause of his persistence in neglecting his work in order to talk to other employees at the garage during working hours. Elbrecht denied that he ever spoke to other employees during working hours about unionism or any other topic not connected with his work. Walter Smith,10 a mechanic who worked on the day shift with Elbrecht, testified that he had on numerous occasions seen Elbrecht talking with the other employees while at work and that he himself often engaged in similar conduct; that on all the above occasions, however, all the employees engaged in talking, including Elbrecht, had remained at work; that the only occasion on which an employee had stopped work to talk had been when he had once done so in order to speak to Elbrecht concerning the Union for 3 minutes, while the latter continued to work; and that during the 10 years he had worked for the respondent he had never been rebuked prior to Elbrecht's discharge for talking at work and had never heard any- one else rebuked for such conduct. The respondents concede that they have no objection to their employees talking during working hours so long as they do not stop their work. George Elliott," another day-shift mechanic, testified that all the employees talked during working hours and that he very frequently talked to drivers and other mechanics during working hours ; that during the months preceding August 1937, he and Elbrecht had talked during working hours; that he had talked about the Union on several occasions during working hours with each of the other three mechanics on the day shift-namely, Smith, Elbrecht, and Mattiola, and that he did not know whether he or Elbrecht had spent 10 Smith was a witness for the respondents. 11 Elliott was a witness for the respondents 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD more time talking about the Union during working hours. The only rebuke that Elliott testified that he received for his talking during working hours occurred after Elbrecht's discharge. Murphy testified that previous to September 1937 he had no fault to find with Elbrecht in regard to inattention to work; that during the last 3 weeks Elbrecht worked he observed him on 7 occasions away from his job during working hours talking with other employees for periods ranging from 5 to 15 minutes in length; that 2 of these con- versations were with Smith, 1 with Elliott, and the other 4 with the 2 floormen; and that on 2 or 3 occasions he rebuked Elbrecht for this conduct. There is no evidence that Murphy rebuked any of the em. ployees except Elbrecht, prior to the latter's discharge. Roy Emer, the truck dispatcher, testified that on 5 or 6 occasions he saw Elbrecht during working hours talking for 5 to 15 minutes with Smith, Elliott, and a truck driver, and that on one occasion, when Elbrecht had been speaking to Elliott, he overheard Murphy rebuke Elbrecht alone for this action. Roemer testified that on "very numerous occasions" he had seen "a great number" of employees talking during working hours, par- ticularly all the day-shift mechanics; that on seven occasions between July and September 1937, he saw Elbrecht talking with other em- ployees during working hours; that on three of the above occasions Elbrecht was talking to Elliott, on another occasion to Smith, and one the other three occasions to a truck driver or a floorman ; that the first two times, late in July and early in August before Elbrecht joined the Union, when he saw Elbrecht engaging in such activity he did not take any steps to reprimand Elbrecht ; that the first occasion when he rebuked Elbrecht was toward the end of August; and that thereafter, in addition to calling the attention of Murphy to Elbrecht's conduct, he personally rebuked the latter once or twice. There is no evidence that Roemer ever rebuked anyone except Elbrecht for talking during working hours. The evidence also shows that the continual ingress and exit of the trucks and their drivers, as well as the need for the mechanics to move about the premises to obtain tools and perform their work, in- evitably results in much conversation during working hours among the employees. We find (1) that previous to August 1937, all the respondents' employees, and particularly the mechanics, including Elbrecht, did much talking during working hours, often temporarily leaving or stopping their work while so doing, and were never rebuked or disci- plined for such activity; (2) that during August and September 1937 all the employees, including Elbrecht, neglected their work no more than previously by talking during working hours, although much of ROEMER BROS. TRUCKING COMPANY 561 their conversation then concerned the Union; (3) that during August and September 1937, Elbrecht talked no more during working hours to the neglect of his work than did other employees, and in particular Elliott; and (4) that during August and September 1937, despite their knowledge that all the employees were engaging in the same activity, to almost the same extent, Murphy and Roemer rebuked Elbrecht alone for talking during working hours. On the basis of the evidence set forth below, we are of the opinion that the reason Roemer and Murphy in August and September 1937 for the first time rebuked any employee for talking during working hours and limited their rebukes to Elbrecht was because of their knowledge or belief that these conversations pertained to the Union and that Elbrecht was the leader in this union activity. Soon after Elbrecht joined the Union on August 10, the 3 day-shift mechanics, as well as the truck drivers, knew of his union membership. Murphy and Roemer testified that they did not know of Elbrecht's union membership until after his discharge. Elbrecht testified that at the time of his discharge on September 25 Murphy told him that it was due to the falling off in the respondents' business and that "I would not gain anything by joining a labor organ- ization, and that shop conditions were very good around there, and other members [employees] were satisfied, and that I should be." Murphy testified that he gave Elbrecht no reason for his discharge but told him to see Roemer, and that Elbrecht then lost his temper, threatened to make trouble, and created a scene in the garage. If Elbrecht in fact created such a scene and Murphy then reported the incident to Roemer that day, as Murphy testified, we think it highly improbable that Roemer would have given Elbrecht such high praise 2 days later in his previously quoted letter of recommendation.12 A few hours after Elbrecht's discharge Murphy, for the first time, rebuked Elliott and Smith for neglecting their work by talking during working hours. Murphy then told Elliott that there had been too much time lost from work and that if he, Elliott, was not satisfied with the working conditions in the plant and if he "wanted to follow Bob [Elbrecht] out," he "could pack up his tools.'- The similarity of Murphy's remarks to Elliott and his remarks to Elbrecht, 12Elbrecht also testified , and Murphy denied, that when Murphy discharged him, he, Elbrecht , mentioned Mattiola was junior to him in length of service and Murphy replied that Mattiola could not be discharged because he owed Roemer $50. Roemer admitted that Mattiola had been indebted to the respondents for as much as $75 Roemer testified that Mattiola owed no money when Elbrecht was discharged , that he "didn't tnlnk" that any loans were made to Mattiola , until after this date , and that he could refer to his "books" to support this "almost positive" belief. These "books" were never produced or referred to. Under these circumstances , we are unable to agree with the Trial Examiner's conclusion that Elbrecht 's testimony concerning this statement by Murphy about Mattiola's indebtedness casts doubt on the credibility of Elbrecht 's testimony relating to other parts of his interview with Murphy on September 25, 1937. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as testified to by the latter, is apparent. In view of all the above facts we find that Elbrecht's version of his conversation with Murphy on September 25 is substantially correct. In addition, we think it highly improbable that Roemer on September 27 would, as he in fact did, deliberately conceal from Elbrecht what the respondents assert was one, if not the major, cause for Elbrecht's discharge, unless Roemer, because he believed or knew that Elbrecht's conversations with other employees concerned the Union, was discharging the latter because of this union activity. On October 29 Brinkerhoff telephoned Murphy and, stating that he wished to employ Elbrecht,13 asked why Elbrecht had been dis- charged. Brinkerhoff testified that Murphy replied that Elbrecht had been discharged because he, Elbrecht, "was a sort of labor agitator." On November 2, Brinkerhoff spoke to Murphy at the garage and, according to his testimony, Murphy told him that Elbrecht had been discharged for "union activities and agitating in the shop," and that he, Murphy, did not "want any union in this shop." John Cahott, a mechanic not employed by the respondents and who was present at the time of this interview between Brinkerhoff and Murphy, corrobo- rated Brinkerhoff's testimony. Murphy testified that he told Brinker- hoff that the respondents had discharged Elbrecht because they had had "some trouble" with him. In view of the previous remarks of Murphy to Elbrecht and Elliott, we are of the opinion, and we find, that Murphy made the remarks to Brinkerhoff contained in the testi- mony of Brinkerhoff and Cahott. We find that the respondents rebuked, and finally discharged Elbrecht, not because his talking during working hours interfered with the work at the respondents' garage, but solely because the re- spondents knew or believed that his conversations concerned the Union. In accordance with our previous decisions, we find that Elbrecht's discharge under these circumstances constituted a violation of Section 8 (1) and (3) of the Act 1.4 In making the above findings of fact, we have in the main followed the findings of fact of the Trial Examiner. Where we have disagreed with any findings of the Trial Examiner, we have done so only after giving due weight to his findings and conclusions concerning the credibility of parts of the testimony of certain witnesses. In such 13Brinkerhoff, in fact, did not intend to employ Elbrecht at this time. 14 Matter of American Potash & Chemical Corporation and Borax and Potash Workers' Union No. 20181, 3 N. L. R . B. 140 , 151-152, order enforced , National Labor Relations Board V. American Potash & Chemical Corporation, 98 F. (2d ) 488 (C. C. A. 9th, 1938) ; Matter of Botany Worsted Mills and Textile Workers Organizing Committee, 4 N. L. R B 2t2 ROEMER BROS. TRUCKING COMPANY 563 instances we have set forth what we deem adequate reasons for not following the Trial Examiner's findings. The respondents contend that the fact that some of their employees, such as the painters and truck drivers, belong to unions, and the fact that in 1936 the respondents loaned the drivers monies to pay union dues then in arrears, show their lack of hostility toward the Union. However, the respondents had a strong economic motive for opposing the Union, since the wage scale demanded by the Union was much higher than the wages then paid the mechanics by the respondents."-, We find that the respondents discharged Elbrecht because of his union membership and activity. The respondents, by discharging Elbrecht, discriminated in regard to his hire and tenure of employ- ment, thereby discouraging membership in a labor organization and interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act. After his discharge, Elbrecht secured temporary employment with United Parcel Company from November 18 to December 8, 1937, as a garage mechanic. At the time of the hearing in the present case, Elbrecht was employed as a machinist's helper to erect coal pulver- izers, in the Public Service Company's Essex powerhouse, by United• Engineering Construction Company at $1.251/2 an hour. When Elbrecht secured this position on January 11, 1938, he was informed that the job was a temporary one. Elbrecht desires to return to his former position in the employ of the respondents. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondents set forth in Section III above, occurring in connection with the operations of the respondents 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. V. THE REMEDY Having found that the respondents have engaged in certain unfair labor practices, we shall order them to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act and to restore, as nearly as possible, the situation that existed prior to the commission of the unfair labor practices. We have found that the respondents engaged in unfair labor practices by discharging Robert Elbrecht. We shall order the re- 15 The union scale was $1.25 an hour. Elbrecht earned $ 85 an hour, and Elliott $ 95 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondents to offer reinstatement to Elbrecht. Since we do not believe that the respondents could have been expected to reinstate Elbrecht after they received the Intermediate Report recommending that the instant complaint be dismissed,- we shall order the respondents to make Elbrecht whole for any loss of pay he may have suffered by reason of his discharge by payment to him of a sum equal to the amount which he,normally would have earned as wages from Sep- tember 25, 1937, the date of his discharge, to the date of the offer of reinstatement, excluding from the computation of his back pay the period from May 16, 1938, the date of the Intermediate Report, to the date of the Order herein, less his net earnings' during these periods for which back pay is computed. 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. International Association of Machinists, Lodge #340, 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 Robert Elbrecht, and thereby discouraging membership in the International Association of Machinists, Lodge #340, the re- spondents have engaged in and are engaging in unfair labor prac- tices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are 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. ' Matter of E. R . Hafelinger Company, Inc., and United Wall Paper Crafts of North America, Local No. 6, 1 N L. R. B. 760; Matter of Brown Shoe Company, Inc ., a Corpora- tion, and Boot and Shoe Workers Union, Local No. 655, 1 N. L. R. B. 803. 17 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 respondents , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking work elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B 440 Monies received for work performed upon Federal , State, county, municipal, or other work-relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal or other government or governments which supplied the funds for said work -relief projects See Matter of Republic Steel Corporation and Steel Workers Organizing Committee , 9 N. L. R . B. 219. ROEMER BROS . TRUCKING COMPANY 565 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 respondents, Roemer Bros. Trucking Co., Inc. and Roemer Garage, Inc., their officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Association of Machinists, Lodge #340, or any other labor organization of their employees by discharging or refusing to reinstate any of their em- ployees or in any other manner discriminating in regard to the- hire or tenure of employment of their employees or any term or condi- tion of the employment of their employees because of membership in or activity in connection with any such labor organization; (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of the rights of their employees 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 purposes of collective bargain- ing and other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Robert Elbrecht immediate and full reinstatement to his former position without prejudice to his seniority or other rights or privileges previously enjoyed by him; ' (b) Make whole Robert Elbrecht for any loss of pay he has suffered by reason of his discharge by payment to him of a sum equal to the amount which he normally would have earned as wages from Sep- tember 25, 1937, the date of his discharge, to the date of the offer of reinstatement, excluding from the computation of his back pay the period from May 16, 1938, the date of the Intermediate Report, to the date of this Order, less his net earnings 1s during the periods for which back pay is to be computed; provided that the respondents shall deduct from the amount otherwise due Robert Elbrecht a sum equal to that received by him for work performed upon Federal, State, county, municipal, or other work-relief projects during the periods for which back pay is due him under this Order, and shall pay any such amount deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; 11 See footnote 17, supra. 1879 ;0-39-vol 13-.',7 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post immediately notices to their employees in conspicuous places throughout their several places of business in Newark, New Jersey, stating that the respondents will cease and desist as provided in paragraphs 1 (a) and (b) of this Order; (d) Maintain such notices for a period of at least sixty (60) consecu- tive days from the date of posting; (e) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps the respondents have taken to comply herewith. MR. WILLIAM M. LFISExsoN took no part in the consideration of the above Decision and Order. Copy with citationCopy as parenthetical citation