Scobey Fireproof Storage Company

National Labor Relations Board - Board Decisions

Jul 25, 1939

13 N.L.R.B. 1106 (N.L.R.B. 1939)

In the Matter of SCOBEY FIREPROOF STORAGE COMPANY and INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , STABLEMEN
AND HELPERS , LOCAL No. 657
Case No. C-734.-Decided July 25, 1939
Warehouse and Trucking Industry-Jurisdiction: case previously decided by
Board not controlling , overruled in so far as any principle of jurisdiction
therein established may be at decisive variance with present Decision-Inter-
ference, Restraint, and Coercion: attempt to have employee spy on fellows'
union activities ; anti-union statements ; taunting employees for union activi-
ties ; discouraging attendance at union meetings and membership in Union ;
removing active Union leader from residence on premises-Espionage : ordered
to cease and desist from engaging in-Discrimination : discharge of for union
activity , sustained as to one employee ; dismissed as to another employee delib-
erately violating company rule after warning-Reinstatement Ordered: for
employee discriminated against-Back Pay: awarded to employee discrim-
inatorily discharged ; Computation of: monthly base rate equal to the average
of actual earnings for the 3 months next preceding date of discharge.
Mr. Warren Woods, for the Board.
Terrell, Davis, Hall c6 Clemens, by Mr. Theo F. Weiss and Mr.
A. V. Knight, of San Antonio, Tex., for the respondent.
Mr. V. L. Wol f enberg and Mr. A. F. Cadena, of San Antonio,
Tex., for the Union.
Mr. Sidney Sugerman, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge and amended charges duly filed by International
Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers,
Local No. 657, herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Sixteenth Region (Fort Worth, Texas), issued its complaint dated
March 28, 1938, against Scobey Fireproof Storage Company, San
Antonio, Texas, 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) and (3) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
13 N. L. R. B., No. 105.
1106
SCOBEY FIREPROOF STORAGE COMPANY 1107
449, herein called the Act. The complaint, with a copy of the last
amended charge annexed, and a notice of hearing were duly served
upon the respondent and the Union.
The complaint alleges in substance that between May 19 and Sep-
tember 9, 1937, the respondent discouraged membership in the Union
by discharging three named employees and demoting a fourth, because
they had joined and assisted the Union; that the respondent, by so
doing, by attempting espionage upon the union activity of its em-
ployees, and by various and sundry other means, interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On April 12, 1938, the respondent filed its answer to the complaint
averring that its business was almost entirely intrastate in character,
and hence that the Board lacks jurisdiction of the subject matter,
denying that the discharges and demotion alleged in the complaint
were discriminatory within the prohibition of the Act; and denying
that it attempted espionage or otherwise interfered with, restrained,
or coerced its employees in the exercise of their said rights. At the
same time, the respondent filed a motion to strike various portions of
the complaint as unsupported legal conclusions and others for indefi-
niteness, as well as to dismiss the complaint for failure to allege facts
sufficient to vest the Board with jurisdiction in the premises, and for
general insufficiency.
Pursuant to an amended notice, which was duly served upon the
respondent and the Union, a hearing was held at San Antonio, Texas,
on April 28, 29, and 30,1938, before R. N. Denham, the Trial Examiner
duly designated by the Board. The Board and the respondent were
represented by counsel, and the Union by its business agent and its
organizer ; all participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing upon the issues was afforded all parties.
At the opening of the hearing, the Trial Examiner denied the re-
spondent's motion to strike and dismiss, reserving his ruling, however,
on that portion thereof directed to the jurisdiction of the Board, which
he later denied in his Intermediate Report. At the close of the
Board's case in chief, the Trial Examiner granted the motion of the
Board's attorney to dismiss the complaint as to the discharge of one
of the three named employees and as to the demotion of the fourth?
During the course of the hearing, and in his Intermediate Report, the
Trial Examiner made several other rulings on motions and on objec-
tions to the admission of evidence. The Board has reviewed the
i Accordingly, the only cases under Section 8 (3) of the Act herein considered are the-
allegedly discriminatory discharges of V. L Wolfenberg and C 0 Graham
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings of the Trial Examiner and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
On June 27, 1938, the Trial Examiner filed an Intermediate Report
finding in substance that the respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce, within the mean-
ing of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act,
in that it had discharged C. O. Graham on August 24, 1937, because
of his union activities; in that it had requested V. L. Wolfenberg to
spy on his fellow workers with respect to their union activities; in
that it had urged and advised its employees to refrain from attend-
ance at Union meetings ; and in that it had ordered J. N. Graham to
desist from recruiting union membership among his fellow employees.
However, in his said Report the Trial Examiner found that the dis-
charge of V. L. Wolfenberg was for valid cause, induced by his delib-
erate violation of a company rule. The Trial Examiner recommended,
therefore, that the respondent cease and desist from its unfair labor
practices, and reinstate C. O. Graham with back pay; and that the
complaint be dismissed as to the allegedly discriminatory discharge
of V. L. Wolfenberg.
On July 7, 1938, the respondent filed exceptions to the Intermediate
Report of the Trial Examiner. The Union has filed none. The par-
ties expressly waived their privilege of oral argument. The respond-
ent filed a brief on February 18, 1939, in support of its exceptions.
The Board has considered the exceptions and the brief, 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
1. THE BUSINESS OF THE RESPONDENT
The respondent, a Texas corporation having its sole place of busi-
ness in San Antonio, is engaged in the warehouse and trucking
business. Its total annual revenues from all sources exceed $250,000.
Roughly 60 per cent thereof is derived from warehouse operations
and the remainder principally from hauling and cartage. The re-
spondent normally employes 98 men in all operations. It owns and
operates 20 motor trucks. -
The warehouse handles and stores, among other things, merchan-
dise inventories maintained for local customers by certain national
distributors, and delivered via freight from other States to the re-
spondent's railroad siding at the warehouse. A small business is done
in the handling and cold storage of Bermuda onion seed, under United
States Customs Bond.
SCOBEY FIREPROOF STORAGE COMPANY 1109
About one-third of the respondent's transport business is done
in local moving and cartage of household goods. In the main, the
rest of the transport business embraces long-distance hauling across
State lines, and drayage to and from local freight depots of the
railroad system cominonly known as the Southern Pacific Lines.
Such long-distance hauling is done largely under agency contract
with The Allied Van Lines, Incorporated, a clearing-house of
truckers for booking, routing, dispatching, and connecting long
distance, way, and return hauls. The respondent maintains one van
bearing Allied's name, and painted to the latter's specifications.
Approximately five employees handle all the respondent's Allied
business.
The drayage to and from railroad freight depots is done entirely
within the State of Texas 2 as a store door or pick-up and delivery
service, by which railroads have sought to meet the competition of
straight door-to-door motortruck service in less-than-carload ship-
ments.3 The respondent has such service contracts with the Texas
and New Orleans Railroad Company and the Southern Pacific
Transport Company, both connecting carriers by rail of the Southern
Pacific Lines.4
It operates under a somewhat similar contract with the Lone Star
Package Car Company, a freight forwarder from points outside the
State of Texas via rail to the Southern Pacific Lines' terminal at
San Antonio. Many of the respondent's trucks bear the Lone Star's
insignia.
None of the freight reaching the Southern Pacific Lines' terminals
for local delivery or for trans-shipment enters the respondent's ware-
house. It is brought directly to or loaded for delivery from the
depot platform, where the respondent keeps its own dispatcher in
2 Including the following United States Army posts located in the State : Brooks Field,
Duncan Field, Kelly Field, Camp Normoyle. The transportation of articles of supply to
the posts is regulated by the Secretary of War. Revised Statutes, § 219; 10 U. S. C A
1192.
' For a discussion of the history and character of this service, see Report of the
Interstate Commerce Commission, Pick-up and Delivery in Official Territory, I. & S. Nos.
4191 and 27425, decided October 13, 1936. That such accessorial terminal service is part
of "transportation" within the meaning of the Interstate Commerce Act, see New York
Dock Ry. v. Pennsylvania R. Co. (C. C. A Pa. 1933) 62 F. (2d) 1010, affirming 1 F. Supp.
202, certiorari denied, 289 U. S 121; Merchant Truckmen's Bureau of New York V
Reardon, 10 F. Supp 358, 362; Tariffs Embracing Motor Truck or Wagon Transfer
Service, 91 I. C C 539; Constructive and Off-Track Freight Stations, 156 I. C. C. 205;
Coordination of Motor Transportation, 182 I. C. C. 263; Trucking I. C. C. Freight in
Lieu of Rail Service, 185 I. C. C. 71; Drayage and Unloading at Jefferson City, Mo., 206,
I. C. C. 436.
A The Texas and New Orleans Railroad Company transports the bulk of the Southern
Pacific Lines' freight shipments into and out of Texas. The Southern Pacific Transport
Company is a Texas corporation employing the Southern Pacific Lines' freight cars on
lease contract. It is engaged in the carriage of shipments by rail from and to points
principally within the State of Texas, as well as some between Shreveport, Louisiana, and
Texas.
187930-39-vol 13-71
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constant attendance. However, pool-car shipments, another opera-
tion in which the respondent is engaged , and by which a group of
shippers outside the State consign their several lots of merchandise
to themselves in the respondent 's care for distribution among their
local customers , are brought alongside the respondent 's warehouse
by its railroad siding, and are there sorted and either stored or
hauled by it.
In handling the Southern Pacific Lines' store-door deliveries and
pick-ups, the respondent makes no separate drayage charges to the
shippers or consignees. They are included in the gross freight bills
rendered by the railroads, which are collected for the latter 's account
by the respondent's drivers, except where the customers have estab-
ished credit with the railroads. Notices of arrival and bills of
lading are handled by the respondent in the names of the railroads,
on forms supplied by them. In the case of the Lone Star Package
Car Company, the respondent pays all freight charges to the rail-
roads for the former's account, billing disbursements to it directly.
In all such transactions , the respondent is paid at an agreed rate
per 100 pounds handled. In 1937 the respondent handled over
49,000,000 pounds of such store-door freight.
All the respondent's trucks bear Interstate Commerce Commission
license plates , and are also licensed for the States of Texas, Oklahoma,
and Louisiana. In 1936 the respondent filed with the Interstate
Commerce Commission an application for a certificate to operate as
a common carrier , under the "grandfather " clause of the Motor
Carrier Act, 1935.5 By its supplemental statement attached thereto
the respondent represented itself as actually having engaged in such
interstate carriage in numerous States. It still holds itself out as
operating in interstate commerce.
The respondent cites and relies upon Matter of Wald Transfer cf;
Storage Company, Inc. and Local Union No. 367, International
Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of
America, and Robert Ransom, et al., 3 N. L. R. B. 712, as authority
in support of its contention that the Board is without jurisdiction
of the subject matter . That case is not controlling . In so far as any
principle of jurisdiction therein established may be at decisive
variance with the findings and conclusions herein contained, it is
hereby overruled.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Stablemen
and Helpers, Local No. 657 is a labor organization affiliated with the
8 49 Stat. 551; 49 U. S. C. A. § 306.
SCOBEY FIREPROOF STORAGE COMPANY 1111
American Federation of Labor, admitting to membership all truck
drivers in San Antonio, Texas. The precise limits of its jurisdiction
are not disclosed in the record.
III. THE UNFAIR LABOR PRACTICES
A. Background of unfair labor practices
In 1934, antedating the passage of the Act and the practices com-
plained of, the respondent showed itself determined to thwart
unionization of its plant. Frank Nolan, its former warehouse super-
intendent, had tried in that year to form a union confined to employees
of the respondent, upon instructions of G. E. Latimer, the respond-
ent's secretary, treasurer, and managing executive, to stem an Amer-
ican Federation of Labor organizational drive then under way.
While denying that he so instructed Nolan, Latimer admits having
asked Nolan to ascertain whether the employees would prefer to have
a company union. Failing in his attempt, Nolan was told by
Latimer that if Nolan "couldn't bust them up" Latimer "had some-
body who could." Shortly thereafter, 13 drivers in the transport
division quit their membership in the American Federation of Labor.
The drive of that organization was unsuccessful.
Latimer regards unions in some instances as "fine." He protests
that the respondent has neither engaged in nor sanctioned any active
opposition to their organization. However, he is frankly and unre-
servedly opposed, for economic reasons, to the unionization of the
respondent's plant. At the hearing Lawrence Brune, present super-
intendent of warehouse, was said without contradiction to have
observed in August 1937 that Latimer "is more opposed to a union
this time than he was before".
B. Interference, restraint, and coercion
The American Federation of Labor renewed its drive to organize
San Antonio truckmen in April 1937. On May 18, 1937, C. C. Geisel-
man, superintendent of the transport division, asked Virgil Louis
Wolfenberg, an employee, to "do him a favor . . . to get information
on the union activities among the boys in the yard ... he said they
(labor organizations) were a radical bunch of people and we didn't
want any of that in San Antonio." On other occasions Geiselman's
attitude toward unions was given stronger expression. The Trial
Examiner, having observed Geiselman's conduct as a witness, remarks
that he "gave the appearance on the witness stand of being quick-
tempered and autocratic . . . (and that) his testimony was evasive."
We do not believe Geiselman's categorical denial that he made such
request and statement concerning union activities, or his version of
1112 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
that, conversation, that he merely asked Wolfenberg to watch the
conduct of the men and report to him any violations of the company
rules. To a showing that Wolfenberg has borne some animus toward
Geiselman, the former willingly allows that he dislikes the man and
that he so informed Latimer when complaining of this plot on the
rights of his fellow workers. The attempted espionage failed of its
purpose when Wolfenberg warned the men against it. Nevertheless,
by this attempt the respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
Early in July 1937, workers at the -plant began organization of
the Union, some of them asking Wolfenberg to assume leadership,
which he did. Thereafter, meetings of from 25 to 35 of the respond-
ent's employees were held on August 17 and 19, 1937, at the Labor
Temple. A petition was circulated and subscribed by them signify-
ing that they intended to join the American Federation of Labor, and
designating it as their representative for collective bargaining with
the respondent.
On August 17, 1937, Wolfenberg accused Lawrence Brune, the
warehouse superintendent, of intimidating the men so as to discourage
their attendance at that evening's union meeting. Brune admits
having called practically all of the men into his office on that day,
and having expressed to them his personal opinion "that there was no
necessity of a union; that the men wouldn't be bettering themselves;
that they were being paid better wages or as good wages as they
were being paid anywhere in the State of Texas". A trusted member
of management for many years, his acts are clearly and intimately
identified with the respondent's aims and policies.
Within a week thereafter, J. N. Graham, another employee, was
called into the manager's office and was there charged by Latimer,
upon information furnished by Brune. with "trying to run (the
respondent's) business . . . trying to force the boys to join the union"
and calling them "yellow." No disciplinary action was taken against
him, but he was warned by Latimer that he must not harass or
threaten the men into attending union meetings. J. N. Graham had
heard from Brune's brother, Jake, who was also in the respondent's
employ, that Brune had said that anybody who attended the meet-
ings would be discharged. One of J. N. Graham's stated reasons for
later dropping his union membership was fear of losing his job.
Late in August 1937 the respondent posted a set of "company
rules" consisting of 63 separate items, with notice to its employees
that violation of any of them "will be regarded as ample grounds for
dismissal." Many of the rules so promulgated were either new to the
plant or had never before been brought to the employees' attention.
SCOBEY FIREPROOF STORAGE COMPANY 1113
Many had normally been breached in the reasonable performance of
work, and such breaches were uniformly overlooked, if not condoned.
When related to the time and circumstances, this device is evidence
of a purpose to arrest the movement of employees toward effective
organization . The respondent's decision to devise and post so elabo-
rate a set of rules after 24 years of operating without them, and at
this critical juncture in the respondent's relations with its employees,
when the atmosphere about the plant was known by all to be charged
with rumors and suspicions of the respondent's hostility to the Union,
could only serve to deepen the employees' fear of reprisal. Such was
the effect upon Robert Wood, an employee, who was prompted at
once to inquire of Brune whether the rules would apply with equal
force to union and non-union men. The assurances he received were
equivocal at best. F. H. Manny, another employee, attended but one
meeting of the Union. As he put it : "I heard talk around the yard
there about if anybody would mess around with the union or around
the Labor Temple there why, they would be discharged . . . I did
need the job and I figured about the best thing I could do was to
get out."
By discouraging its employees from interest in the Union and at-
tendance at union meetings, the respondent interfered with, re-
strained, and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
C. The discharge of Wolfenberg
Wolfenberg, a studious person, had been trained for the ministry.
An, acknowledged protege of Latimer, he had worked for the respond-
ent at various times between 1923 and February 1934, when he
entered its regular employ as night watchman of the warehouse.
As such his duties consisted of making rounds of the plant during
a 12-hour shift, reporting his rounds hourly, within a tolerance of 15
minutes, to the American District Telegraph Company, herein called
the A. D. T., by means of an electric contact system between numer-
ous points in the plant and the A. D. T. office in San Antonio. In ad-
dition, he was required during those hours to post the truck drivers'
time-book, and in the early morning to help the plant's mechanic
service trucks. His performance of duties had been satisfactory to
the respondent at all times up to the summer of 1937, and he was
regarded as a competent, efficient worker.
On August 19, 1937, Brune summoned Wolfenberg to an interview
with Latimer. Together they went into the latter's office, where
Latimer informed Wolfenberg that he would have to vacate the
apartment over the respondent 's garage , which Wollenberg had
occupied with his wife since May 1937 in exchange for helping to
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
service the trucks and for keeping some watch on the truck yard.
IN"olfenberg charged Latimer with requiring him to move because
of his union activities, and offered to quit his job as well, which
Latimer said was unnecessary. The, premises were vacated August
20, 1937, and Wolfenberg was relieved of his additional duties of
truck servicing and time-book posting.
During that interview Wolfenberg offered to "lay our cards on
the table and talk about the union," to which Latimer responded
"that since that dictator (admittedly referring to President Roose-
velt) was in power he couldn't talk to [Wolfenberg] in regard to
that subject." Later that same evening Latimer returned to the
warehouse and in substance told Wolfenberg that he could very well
understand a group of ignorant farmers, and others he had picked
up off the streets and given jobs to and cared for, joining the Union,
but that he could not understand anyone of Wolfenberg's intelli-
gence doing it. Latimer does not remember making this last state-
ment, but fails to deny that he made it.
It was by these conversations of August 19, and not before, that
Latimer claims first to have learned of Wolfenberg's union activities.
However, since Brune knew of them on the day of the first union
meeting, August 17, and reported to Latimer on the next day that
the meeting had taken place; since he did mention to Latimer the
names of some members of the Union, and knew of Latimer's partic-
ular interest in Wolfenberg, it is incredible that Latimer was unin-
formed of Wolfenberg's connection with the organizational activity
at the time the latter was asked to move from the apartment.
The respondent explains, in justification of its act of removing
Wolfenberg from the premises, that while he was making warehouse
rounds his wife would sometimes accompany him, and thus the yard
was left completely unguarded, that at other times he would leave
the warehouse unguarded to service trucks for early departures.
The respondent claims that Wolfenberg's removal was ordered for
the sole purpose of providing better protection to its customers'
property and its own truck terminal, and was in no way induced by
or related to his union activity. Besides, the respondent maintains
that Wolfenberg's occupancy was only a temporary arrangement,
made at his request, to tide him over a period of personal difficulties.
On the other hand, Wolfenberg contends that this was but one step
in a systematic campaign of the respondent to discourage union activ-
ity at the plant, engendered of its long standing anti-union policy
and sharpened by the resurgence of the Union at that very moment.
In attacking the respondent's motive he points to the fact that no
previous notice to vacate had been given to him during the 3 months
of his occupancy; moreover, that no reasons whatever for his re-
SCOBEY FIREPROOF STORAGE COMPANY 1115
moval were at the time offered to him by Latimer. In all the cir-
cunistances, and particularly considering that this occurred less than
48 hours after the Union's first meeting and on the eve of its second,
we find that Wolfenberg's activity on behalf of the Union underlay
the respondent's sudden decision to have him move from his apart-
ment, and that thereby the respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
by Section 7 of the Act.
It is noteworthy that Wolfenberg had taken to his organizational
work with a zeal which left little room for compromise of the prin-
ciples he embraced, and hence was not conducive to an easy adjust-
ment of differences with his superiors in matters touching the Union.
On his cross-examination, evidently for the purpose of demonstrating
Wolfenberg's vicious or volatile character, he was made to testify
about an incident on August 31, 1937, when he drew his watchman's
gun and threatened to shoot John Eagleston, a superintendent of
the warehouse. On his redirect examination, Wolfenberg explained,
again without contradiction although others had been present, that
he did so in self-defense against an overt threat of physical harm.
climaxing an exchange of heated words. He testified :
He,said Mr. Latimer had been back to him in his office and
told him that I had broken his heart by becoming involved
in these union activities and Mr. Eagleston threw that up to me
and I told John or Mr. Eagleston that the only reason that I
could offer for my union activities was that I was sincere in my
beliefs . . . He said he knew I was a God damned liar;
that I wasn't sincere in it. . . . I objected to that . . .
I told him that I didn't think it was any of his business or any
one else's to try to interpret my feelings on any question, espe-
cially in relation to union activities . . . He cursed a little
more . . . I told him what I thought of him and the rest of
them there . . . he jumped up and made a run for me
I pulled the gun and told him to sit down ... -
Later that night, in a friendlier talk about the Union, Eagleston
asked Wolfenberg, in the latter's words, "why I didn't come to him
before I became involved in it; that he could have told me that there
would be no union in San Antonio," to which Wolfenberg responded
that "we were like a bunch of slaves trying to make a break for
freedom."
By such flagrant taunting of Wolfenberg for his devotion to the
Union, the respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed by Section 7
of the Act.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 25, 1937, Latimer called Wolfenberg into his office
again and, showing him an A. D. T. report of Wolfenberg's late-
ness in starting the previous night's 2 o'clock round, warned him
not to let it happen again, on pain of his discharge. Although the
respondent had received from the A. D. T. in the past year some 15
reports of Wolfenberg's lateness in starting his hourly rounds, 7 con-
tained adequate excuses for his lapses, and the remaining 8 merely
stated without explanation that he had "overlooked the time."
Wolfenberg admits that on the last occasion, August 24, 1937, he had
in fact fallen asleep. The latenesses for all causes were spread and
spaced over the year with no particular pattern or concentrations.
Latimer admits that this was the only time he ever talked to Wolfen-
berg about any such report, although claiming that his suspicions
as to the latter's efficiency were aroused by the constant flow of
notices. Wolfenberg testified without contradiction : "I told Mr.
Latimer that I would certainly be careful as I knew they were after
me." At about this time, likewise according to Wolfenberg's un-
contradicted testimony, he told Brune that information had come
to him that he, Wolfenberg, was to be "put out of the company in
one way or another." Warning Brune that he must not be made the
scapegoat of a frame-up, Wolfenberg was assured, as he testified,
that "they wouldn't get me that way, but that when they did get
me they would get me aboveboard."
Well knowing that one more late round would probably cost his
job, Wolfenberg told Brune and others on September 8, 1937, that
he would be late in punching the A. D. T. clock on one of that
night's rounds. He carried out his avowed purpose and later re-
ported to the A. D. T. that he had been asleep. Wolfenberg admits
that he deliberately contrived this incident with full knowledge of
its consequences, explaining that he could no longer endure the
pressure of the respondent's anti-union campaign.
On September 9, 1937, Latimer, having the A. D. T. report before
him stating that Wolfenberg "said that he had fallen asleep," called
the latter in and said, "Well, Wolf, you just automatically fired
yourself." Wolfenberg offered no explanation or excuse for the
incident.
Although the respondent's anti-union practices, especially as
directed at Wolfenberg, were highly provocative, it was well within
its rights in demanding that as night watchman he stay awake,
make his rounds, and coordinate the latter with the routine of the
A. D. T. system. Wolfenberg's duties were within his power of sub-
stantial performance. We are not confronted with a case of normal,
slight deviation from duty in the past condoned, but rather with a
purposeful breach after specific warning. However unfair the warn-
SCOBEY FIREPROOF STORAGE COMPANY 1117
ing itself may have seemed to Wolfenberg, he was not entitled to
flout it and still expect the protection of the Act.
We find that by discharging Wolfenberg the respondent did not
discriminate in regard to his hire and tenure of employment or dis-
courage membership in the Union. The complaint will be dismissed
as to his allegedly discriminatory discharge.
D. The discharge of Graham
On August 23,1937, C. O. Graham, a truck driver who had worked
for the respondent satisfactorily for several years, requested Geisel-
man to speak with Latimer about having a seat cushion repaired on it
new truck which he had been driving. Geiselman told him not to
bother about it, that the next day he would be assigned to another
truck. Although the truck detailed to him was the "orphan of the
fleet," Graham did not protest. However, when Geiselman added
that he would have Manny as helper, Graham complained that he
would rather not be teamed with Manny, having in mind an injury
sustained as a result of the latter's alleged carelessness when they
had previously been paired. Graham and Geiselman exchanged
words, in the course of which the former was told firmly that he
would have to accept the assignment. Thereupon Latimer who had
been standing nearby within earshot, angrily injected himself into
the argument and called them into his office, where he roughly
berated Graham for his protestations. Graham is not claimed to
have persisted further therein.
The testimony is especially conflicting as to whether at this point
the subject was closed. Latimer claims to have postponed action
on it with the remark : "I am really too mad to discuss this with
you now . . . I will think it over and let you know." Graham
contends that nothing was left open when they parted. He walked
out and finished his work. In the morning of August 24, he reported
for work as usual and was told he was not needed in the transport
division, and to report to the household division. There he was told
that there was no work for him, and that Latimer wanted to see him.
In his office, Latimer, in a mood bordering on the apologetic, dis-
charged Graham for "insubordination," denying in his testimony
that the latter's union activity had anything to do with the dismissal.
We believe that the decision to discharge Graham for "insubordina-
tion" was an afterthought, which Latimer rationalized, in these
words, quoted in his own testimony : "My inclination was to let you
go right then, but I didn't want to act hasty and I wanted to have
time to think it over, because I didn't want to do the wrong thing."
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In probing for the underlying motive of this afterthought, we
find that the "insubordination" consisted in the main of expressing
a reasonable preference for one helper to another, a common prac-
tice among the respondent's truck drivers, customarily acceded to
without question on its part. We look elsewhere for the real motive.
Graham had attended both union meetings, on August 17 and 19,
and signed the union petition. He had paid his membership dues,
and was openly and enthusiastically engaged in recruiting new mem-
bers and swelling attendance at the meetings. While the respond-
ent's explicit knowledge of that activity on Graham's part is not
shown, it is a fair inference, from all that we have observed con-
cerning Brune's reporting coverage of such matters of interest to
the respondent, that Graham was known to be engaged in organiza-
tional work.
Timed as were all the events recounted herein, the notion of sheer
coincidence must give way to more reasonable inferences from the
trustworthy evidence. Graham was not discharged in the heat of
anger, real or feigned. In denying his plea for reconsideration and
another trial, Latimer furnished Graham with the names of four
concerns in Houston, Texas, to interview for a position, and to which
Latimer would recommend him if asked. In fact, as we have found,
Graham was not penalized beyond a reprimand when the incident
of August 23 was closed on that day. That he was discharged in
a later moment of calm, after deliberate consideration and in the
face of an otherwise, unblemished record of years' service, bespeaks
a hidden, improper purpose and design, which we think the shape
of events reveals.
We find that the respondent discharged C. 0. Graham on August
24, 1937, because of his union membership and activities, thereby
discouraging membership in the Union, and interfering with, re-
straining, and coercing its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
At the time of his discharge, Graham was earning 35 cents an
hour for an average monthly income of $80 to $90. Since then
he has earned $4.50.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III4 B and D 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.
SCOBEY FIREPROOF STORAGE COMPANY
V. THE REMEDY
1119
Finding that the respondent has been guilty of unfair labor prac-
tices in violation of the rights guaranteed by Section 7 of the Act,
we shall order the respondent to cease and desist from engaging in
such practices, and to take certain affirmative action to remedy the
effects thereof.
Finding that the discharge of C. 0. Graham was discriminatory,
we shall further order the respondent to remedy this unfair labor
practice by restoring as far as possible the status quo at the time
of his discharge.
We shall order the respondent to offer to Graham full and im-
mediate reinstatement to his former position, without prejudice to
his seniority or other rights and privileges which he would have
enjoyed had his tenure of employment remained unbroken by his
discriminatory discharge, and to make Graham whole for the loss
of pay which he has suffered by reason of his discriminatory dis-
charge, by payment to him of a sum of money equal to the amount
he would normally have earned as wages from August 24, 1937, to
the date of the respondent's offer of reinstatement, less his net earn-
ings 6 during that period. For the purpose of computing what he
would have earned but for his discharge, his actual earnings for the
3 months next preceding the date of his discharge shall be averaged
to fix a monthly base rate.?
Upon the foregoing findings of fact and upon the entire record in
the case, the Board makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Stable-
men and Helpers, Local No. 657, 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 C. 0. Graham, thereby discouraging membership in Inter-
By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies
received for work performed upon Federal , State, county , municipal , or other work-relief
projects are not deductible as "net earnings " but as provided in the Order below, shall
be deducted and paid over to the appropriate fiscal agency of the Federal, State, county,
municipal , or other government or governments which supplied funds for said work -relief
projects
7 See Matter of Union Pacifto Stages , Inc. and Amalgamated Association of Street,
Electric Railway and Motor Coach Employees of America , Local Division 1055, 2 N. L. R. B.
471, enforcement denied on other grounds in National Labor Relations Board v Union
Pacific Stages, Inc., 99 F. (2d) 153 (C. C A. 9th, 1938).
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
national Brotherhood of Teamsters, Chauffeurs, Stablemen and
Helpers, Local No. 657, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of
the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed by Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
5. By, discharging Virgil Louis Wolfenberg, the respondent did
not engage in any unfair labor practice, within the meaning of
Section 8 (1) and (3) of the Act, as alleged in the complaint.
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, Scobey Fireproof Storage Company, and its officers,
agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Stablemen and Helpers, Local No. 657, or any
other labor organization of its employees, by discharging or refusing
to reinstate any of its employees or in any other manner discrim-
inating in regard to their hire and tenure of employment or any
term or condition of their employment;
(b) Either directly or indirectly, engaging in, any manner of
espionage or surveillance, or engaging the service of any agency or
individuals for the purposes of espionage or surveillance, upon its
employees or upon any labor organization of its employees;
(c) 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 C. O. Graham immediate and full reinstatement to
his former position, without prejudice to his rights and privileges;
SCOBEY FIREPROOF STORAGE COMPANY 1121
(b) Make whole C. O. Graham for any loss of pay which he has
suffered by reason of his discriminatory discharge, by payment to
him of a sum of money equal to the amount he would normally have
earned as wages from August 24, 1937, to the date of the respondent's
offer of reinstatement, less his net earnings during that period,
computing his normal earnings at a monthly base rate equal to the
average of his actual earnings for the 3 months next preceding the
date of his discharge; deducting, however, from the amount other-
wise due to C. O. Graham, monies received by him during that period
for work performed upon Federal, State, county, municipal, or other
work-relief projects; and pay over the amount so deducted to the
appropriate fiscal agency of the Federal, State, county, municipal,
or other government or governments which supplied the funds for
said work-relief projects;
(c) Post immediately in conspicuous places at its plant, and there
keep posted for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating that the
respondent will cease and desist as set forth in paragraphs 1 (a),
(b), and (c) of this Order, and will take the affirmative action
required in paragraphs 2 (a) and (b) hereof;
(d) Notify the Regional Director for the Sixteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges
that the respondent, by discharging Virgil Louis Wolfenberg,
engaged in unfair labor practices within the meaning of Section 8
(1) and (3) of the Act, be, and the same hereby is, dismissed.
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Order.