Tanner Motor Livery, Ltd.

National Labor Relations Board - Board DecisionsSep 29, 1964

148 N.L.R.B. 1402 (N.L.R.B. 1964)

1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that Respondent has violated Section 8 ( a)(5) and ( 1) of the Act I will order it to cease and desist from any like or related conduct. However, as the record shows that Respondent was motivated solely by economic considerations ; that the blessings of these economies were actually received in the passage of time since the contracting of the work, and that contracting out work without bargaining had been done in the past , I will not order Respondent to cancel its contract with Ross and rehire the five former employees and go back to its former practice of doing its own hauling. All the trucks and tractors have been sold off. Respondent would be put at great expense to create the situation as it was before its contract with Ross , and, even if that were to be done the results of bargaining col- lectively with the Charging Party might well result in again selling the equipment and contracting out the work . Obviously money would be lost in either or both transactions . Under these circumstances such loss would be wasteful and not con- structive It would seem to penalize both the Employer and the employees . I believe it would be more equitable for the Respondent to be ordered to now bargain with the Charging Party over the matter and to carry out whatever arrangements were agreed upon as a result of this collective bargaining . As the action of Respondent in unilaterally carving out part of the collective -bargaining unit has an impact on the whole wage structure , it materially breached the agreement. Also because of this breach and in addition to the preceding paragraph, I will order Respondent to bargain with the Charging Party upon so much of the wages, hours and terms and conditions of employment of all employees in the unit as the Charging Party requests and, if necessary, agree to a wholly new collective -bargaining agreement. It is recognized that man should reach for more than he can grab , and, on the other hand, that he be forced to give up some of that he had when interests of the public are put into the balance. Both parties in this matter seem very familiar with the law which in one aspect holds that good-faith collective bargaining does not require the making of concessions. CONCLUSIONS OF LAW 1. The Charging Party is the duly selected collective -bargaining agent for the em- ployees in an appropriate unit designated as follows: All employees of Respondent employed at Nashville, Gallatin, Cookeville, Mc- Minnville, Tullahoma , Shelbyville , Columbia, Lawrenceburg , Hohenwald , Dickson, Clarksville , Camden, and Murfreesboro , Tennessee , excluding all office clerical em- ployees, managers , route managers , city salesmen , field men, professional employees, guards, watchmen , and supervisors as defined in the Act. 2. By unilaterally contracting out the work of the transport division, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (5) and (1) and Section 2 (6) and ( 7) of the Act. Recommended Order omitted from publication. Tanner Motor Livery, Ltd. and Martin Abramson . Case No. f1- CA-5500. September 1,19, 1964 DECISION AND ORDER On April 30, 1964, Trial Examiner Martin S. Bennett issued his Decision in the above-entitled proceeding, finding that the Respond- ent had not engaged in and was not engaging in the unfair labor practices alleged in the complaint and recommending that the com- plaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed excep- tions to the Trial Examiner's Decision and a brief in support thereof. 148 NLRB No. 137. TANNER MOTOR LIVERY, LTD. 1403, The Respondent also filed exceptions to certain of the Trial Ex- aminer's findings and conclusions. The Board has reviewed the rulings of the Trial Examiner made. at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Trial Examiner's Decision, the exceptions, and brief, and hereby adopts the findings, conclusions, and recommendations of the Trail Examiner to the extent consistent herewith. For the reasons set forth in his Decision, we agree with the Trial Examiner's findings that : (1) employees Abramson and Dorbin, to- gether with Kellough, the job applicant, were engaged in concerted activities in protest against the Respondent's discriminatory hiring policies and practices; (2) the Respondent had knowledge of these activities before it discharged Abramson; 1 (3) Abramson was dis- charged because of his civil rights activities; (4) the Respondent's asserted reasons for discharging Abramson-the accidents of July 24 and 25, 1663-were a pretext for the real reason; and (5) Dorbin was discharged on August 6, 1963, because he joined Abramson in picketing the Respondent. However, we do not agree with the Trial Examiner's conclusion that the concerted activities here involved are not protected by Sec- tion 7 of the Act. We find that the discharge of Abramson and Dorbin grew out of a labor dispute within the meaning of that term in Section 2(9) of the Act. In New Negro Alliance v. Sanitary Grocery Co.,2 the Supreme Court held that the term "labor dispute" as defined by the Norris-LaGuardia Act, which is substantially the same as the definition under the National Labor Relations Acts encompassed protests and picketing to induce an employer to hire 1 We find no merit in the Respondent ' s contention that the Trial Examiner erred in inferring that Hughes had knowledge of Abramson 's activities before he discharged Abramson The record amply supports the Trial Examiner 's finding of knowledge More- over , the fact that Respondent 's Plant Manager Barrial was admittedly aware of Abram- son's civil rights activities is sufficient to impute knowledge to the Respondent. 2 303 U S 552 , revised and corrected , 304 U S 542. 3 Section 13 ( c) of the Norris -LaGuardia Act reads: The term "labor dispute" includes any controversy concerning terms or conditions of employment , or concerning the association or representation of persons in negotiat- ing, fixing , maintaining , changing, or seeking to arrange terms or conditions of em- ployment , regardless of whether or not the disputants stand in the proximate relation of employer and employee Section 2 (9) of the National Labor Relations Act reads' The term "labor dispute" includes any controversy concerning terms , tenure, or, conditions of employment , or concerning the association or representation of persons in negotiating , fixing, maintaining , changing, or seeking to arrange terms or condi- tions of employment , regardless of whether the disputants stand in the proximate, relation of employer and employee. 1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Negroes and, consequently, that the Federal district court in that case had no jurisdiction to enjoin the picketing. As the court said, at page 561: The desire for fair and equitable conditions of employment on the part of persons of any race, color or persuasion, and the removal of discriminations against them by reason of their race or religious belief is quite as important to those concerned as fairness and equity in terms and conditions of employment can be to trade or craft unions or any form of labor organization or association. Race discrimination by an employer may reason- ably be deemed more unfair and less excusable than discrimina- tion against workers on the ground of union affiliation. There is no justification in the apparent purposes or the ex- press terms of the Act for limiting its definition of labor disputes and cases arising therefrom by excluding those which arise with respect to discrimination in terms and conditions of employment based upon difference of race or color. It is true, of course, as the Supreme Court noted in Washington Aluminum ,4 that not every concerted activity in furtherance of a labor dispute is protected by Section 7. However, an employer's hiring policies and practices are of vital concern to employees inas- much as such policies and practices inherently affect terms and con- ditions of employment. Thus, in our opinion, the concerted activi- ties of employees in protest of what they consider unfair hiring policies and- practices are clearly within their Section 7 right "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . .." This approach is in accord with the Washington Aluminum Company 5 decision, wherein the Supreme Court admonished against interpreting the "broad" language of Section 7 in a "restricted fashion" which "would. only tend to frustrate the policy of the Act to protect the right of workers to act together to better their working conditions." Where, as here, the object sought is lawful and the means employed are peaceful, the concerted activities are protected by the Act. Accord- ingly, we find that the Respondent violated Section 8(a) (1) by dis- charging Abramson and Dorbin 6 because they engaged in conduct protected by Section 7 of the Act. Further, on the basis of uncontroverted evidence appearing in the record and recited by the Trial Examiner, we find that on August 7, * N.L R.B. v. Washington Aluminum Company, Inc ., 370 U.S. 9, and especially footnotes 14 through 17. e Supra. e Since Dorbin was offered full reinstatement on August 7, 1963, having suffered no lose of pay, an order requiring such reinstatement and backpay is not necessary. TANNER MOTOR LIVERY, LTD. 1405 1963, the Respondent, through Ronald Davis, threatened Dorbin with a future discharge if he continued engaging in the concerted activities here involved. Having found that the employees' concerted activities in protest of racially discriminatory hiring policies and practices are protected by Section 7 of the Act, we also find that the Respondent's threat to discharge Dorbin if he engaged in such activi- ties constituted an independent violation of Section 8 (a) (1). THE REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a) (1) of the Act by discharging Martin Abramson on July 29, 1963, we shall order that Respondent offer him immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimi- nation against him, by payment to him of a sum of money equal to that which he normally would have earned from the date of his dis- charge to the date of Respondent's offer of reinstatement, less his net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Wool- worth Co., 90 NLRB 289, and Isis Plumbing Bc Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Tanner Motor Livery, Ltd., its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from : (a) Discharging or threatening to discharge its employees because they engage in concerted activities to protest racially discriminatory hiring policies and practices. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by 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 Martin Abramson immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. ' '1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD • (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in, accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (c) Make Martin Abramson whole for any loss of pay he may have suffered as a result of the discrimination against him in the manner set forth in the section of this Decision and Order entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or ,its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and- reports, and all other records necessary to analyze the amount of backpay due under the terms of the Decision and Order. (e) Post at its plant in Santa Monica, California, copies of the attached notice marked "Appendix." 7 Copies of said notice, to be furnished by the Regional Director for Region 21, shall, after being duly signed by Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other -material. (f) Notify said Regional Director, in writing, within 10 days'from the date of this Order, what steps the Respondent has taken to comply herewith. 7In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals, Enforcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discharge or threaten to discharge or otherwise discriminate against employees because they engage in concerted activities to protest racially discriminatory hiring policies and practices. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guar- anteed by Section 7 of the Act. TANNER MOTOR LIVERY, LTD. 1407 WE WILL offer Martin Abramson immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. WE WILL make Martin Abramson whole for any loss of pay he may have suffered as a result of the discrimination against him. TANNER MOTOR LIVERY, LTD., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) NOTE.-We will notify the above-named employee if presently serv- ing in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 849 South Broadway, Los Angeles, California, Telephone No. 688-5204, if they have any question concerning this notice or com- pliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This matter was heard before Trial Examiner Martin S. Bennett , at Los Angeles, California on December 5, 1963 The complaint 1 alleges that Respondent , Tanner Motor Livery, Ltd., has engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. Briefs have been submitted by the General Counsel and Respondent . Ruling having been reserved upon Respondent 's motion to dismiss the complaint , it is disposed of consistent with the following findings. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT , 1. JURISDICTIONAL FINDINGS Tanner Motor Livery, Ltd., is a California corporation which provides taxicab, limousine , and car rental service to the general public in the Los Angeles and Santa Monica, California, areas. The instant case involves only the Santa Monica branch, one of four , and, more specifically , its taxicab operation . Respondent enjoys gross revenues in excess of $500,000 per annum and annually provides transportation serv- ices for California firms which , in turn, ship goods valued in excess of $50 ,000 di- rectly to points outside the State. Respondent also purchases and receives from suppliers located in the State of California tires , vehicles , and supplies valued in excess of $50,000 per annum which are purchased and received by said suppliers directly from points outside the State . I find that the operations of Respondent affect commerce within the meaning of Section 2 ( 6) and (7), of the Act. I Issued October 28, I9G3, and based upon charges filed August 13 and October 8, 19;3, by Martin Abramson. 1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ALLEGED UNFAIR LABOR PRACTICES A. The issue It is undisputed that Respondent discharged Martin Abramson and Sanford Dorbin, taxicab drivers at the Santa Monica branch, on July 29 and August 6, 1936, respec- tively. Abramson allegedly was fired because he presented a request, as part of a concerted activity, that Respondent hire a Negro taxicab driver. Dorbin, it is clear, was fired because he picketed with Abramson and others in protest of Respondent's alleged discriminatory hiring policy. It is undisputed that no Negroes are among the 50 to 60 drivers employed by Respondent at the Santa Monica branch, although it is likewise clear that Negroes are employed at other branches of Respondent. It is alleged that by these discharges, as well as by threatening Dorbin on August 7 with future discharge for the same reason, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8 (a) (1) of the Act. Dorbin, it may be noted, was offered reinstatement on August 7, but subsequently resigned because of dis- pleasure with working conditions; the General Counsel does not attack this resignation and there is no loss of pay in his case. Respondent's employees are represented by a labor organization, Chauffeurs Union Local 640, a Teamsters affiliate. The latter is not directly involved herein, except for the participation of two of its officials and two Tanner officials. on an ostensibly neutral four-member panel which decided adversely to Abramson's grievance over his discharge B. Sequence of events The 50 to 60 taxicab drivers at Respondent's Santa Monica branch are Caucasians, or at least are not deemed to be Negroes. Two of these drivers, Martin Abramson and Sanford Dorbin, with tenure from January or February of 1962 and November 1961, respectively, were active in various civil rights organizations. These two de- cided at several meetings in mid-July of 1963 to ask their employer to employ a Negro driver. In addition, Abramson conferred with a Negro, Elbert Kellough, and ascertained that Kellough was desirous of obtaining employment as a driver with Respondent. On July 23, 1963, Abramson called upon Manager Frank Barrial of the Santa Monica branch who, it is clear and I so find, is a supervisor within the meaning of the Act. Abramson asked Barrial if he had any objections to employing a Negro. Barrial replied that he did not, that a Negro employed at a carwash utilized by Respondent had asked him for a job, that he had invited him to file an application, that the man had done so and that he intended to put him to work at the first oppor- tunity. Abramson then asked if Barrial would consider Kellough for employment, explaining that Kellough had previously driven a cab. Barrial agreed .to see Kellough the following morning. Kellough was so notified by Abramson and presented himself to Barrial on July 24. He was told that there was no opening but was given an application which he filed approximately I day later. On July 24, and subsequent to Kellough's visit, Abramson was called into Barrial's office where, in the presence of a union official, James Lucas of Local 640, Barrial read a letter from a customer which praised Abramson's performance of his duties 2 Immediately thereafter, Barrial and Abramson held a private conversation. Barrial told Abramson, as the latter testified, that he had telephoned John Hughes, Respond- ent's manager of operations and director of labor relations in Los Angeles, concerning Abramson's request and that Hughes had told him that Respondent had no objections to hiring a Negro.3 2 While the record does not disclose why Lucas, who did not testify, was present on this occasion, I find that he heard the reading of this letter This puts into true perspective his vote several weeks later to sustain Abramson's discharge and warrants the Inference that his vote, in the face of this commendation, reflects his arrayal with management against Abramson 3 Barrial testified that he had not informed Hughes, prior to Abramson's discharge, that Abramson had spoken to him concerning the hiring of a Negro and Hughes denied having such knowledge. Barrial later admitted, however, that he had informed Hughes, prior to Abramson's discharge, that he intended to hire a Negro. The inference is warranted that he also Informed Hughes as to the reason he intended to do so, viz, Abramson's pressure. In addition, while Barrial told Abramson on July 23 that an application from a Negro' was pending, Abramson uncontrovertedly testified that he later told Barrial that his investigation disclosed that such was not the case. Accordingly, Abramson, a forthright and lucid witness, as was Dorbin , has been credited herein. TANNER MOTOR LIVERY, LTD. 1409 Barrial also questioned Abramson about a news broadcast over a local radio station treating with Respondent's lack of cooperation with civil rights organizations in the hiring of a Negro, but Abramson pleaded ignorance thereof. Immediately there- after, Abramson spoke with Dorbin who has been active in the preparation of press releases for local civil rights organizations and informed him of Barrial's statement. Dorbin promptly called upon Barrial. He referred to the broadcast and stated that it was probably an error because he actually had prepared a release announcing that Respondent appeared to be acting in good faith. He pointed out that as an alternative "we could have sent five strangers in here that you never saw before and they could say you got five days to hire a Negro or we will surround the place with pickets." Dorbin made it clear to Barrial, and I so find, that he and Abramson were acting concertedly in this matter. Abramson dented the bumper of his cab on July 24, and had an accident on July 25. These incidents and their inflation by Respondent are treated hereinafter. He worked his regular shifts on July 26, 27, and 28 without incident. July 29 was a day off for Abramson but he called upon Barrial because, as he put it, "I was directed by the United Civil Rights Committee to continue my negotiations, to try and get a Negro hired there." On his arrival, Barrial showed him an interdepartmental memorandum from Hughes to Barrial, dated July 26, with a copy to Teamsters Local 640. The memorandum states as follows: Martin Abramson backed into a fire plug July 24, 1963 causing damage to his cab. On July 25, 1963, he opened the left door of his cab on to traffic, and a serious accident resulted. It is apparent that this man's attitude toward the safety of the operation of his cab is far below standard, and he is to be dismissed immediately. In response to Abramson's query, Barrial stated that the decision to discharge Abramson was that of Hughes and that he, Barrial, had nothing to do with it. This is substantially the testimony of Hughes as well. Abramson uncontrovertedly testi- fied, and I so find, that he asked Barrial whether he, Barrial, would have discharged Abramson if it were his decision to make and Barrial replied that he would not have done so. Abramson protested that his record with Respondent during 11 years of employment had been good; that he had not had "any accident"; and that the first incident involving bumping into a hydrant was trivial. He asked Barrial to attempt to count the numerous dents and scratches on the parked cabs outside the office. Barrial did not do so but admitted herein, in response to a question whether his cabs were unmarred, that they get "normal wear." He conceded that this was "pretty heavy usage." The conversation turned to the hiring of Negroes. Barrial explained that he had been unable to locate the carwash employee. Abramson pointed out that his own investigation disclosed, contrary to Barrial, that the man did not have an application pending with Respondent. Turning to Kellough, Barrial explained that Kellough had a criminal record; the record discloses that such was the case. Abramson re- sponded that some drivers employed there at that time had a record of "misde- meanors and arrests"; the record is silent in this respect. Barrial added that Kellough was too old and that when he hired a Negro he wanted him to be young and also to be "sharp." Barrial then suggested that Abramson file a grievance with the Union. This, as set forth, he did with results adverse to him. Specifically, Representative Lucas and another union representative, Shore, voted with management. On Au- gust 1, Abramson commenced picketing Respondent's office with a sign which bore the emblem "Jim Crow Shop." After 1 hour, he was joined by two other pickets representing CORE (Congress for Racial Equality), the NAACP, and the Bay Area United Civil Rights. Sanford Dorbin finished his shift at 3:15 on the afternoon of August 6, and immediately joined the above group of pickets. He picketed for 45 minutes and then went home. That evening, he received a telegram from Respond- ent which read as follows: DISCHARGED FOR CONDUCT NOT IN KEEPING WITH COMPANYS POLICY NICK LARI APPROVED BY FRANK BARRIAL AND WILLIAM KNIGHT Dorbin immediately telephoned Lari and, as he uncontrovertedly testified, asked in what respect his conduct had not been in keeping with company policy. Lari replied that a number of drivers had complained about Dorbin 's picketing and added 760-577-65-vol 148---90 1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he had not been "fair." He further stated that he had telephoned "downtown" and spoken with Knight, a member of management who had authorized the sending of this wire, as well as with Business Agent Hurley of Local 640 and that Hurley had stated "go on, fire him." 4 At Dorbin's request, Abramson also telephoned Lari that evening and asked the reason for Dorbin's discharge. He testified, and I find, that he was told that Dorbin was discharged for a reason which Abramson well knew, viz, that he had picketed with Negro sympathizers. Respondent has adduced evidence to the effect that Lari was not a supervisor whose statements were binding upon management and it is true that dispatchers are members of a unit of office workers represented by another union. But in view of Lari's role in the sending of the discharge wire to Dorbin, I find that he acted as an agent of Respondent in this area and that these statements in this identical area are also binding upon Respondent. Moreover, Respondent's director of labor rela- tions, Hughes, who directed the discharge of Abramson, admitted that he had been informed in the offices of Respondent that a vice president of Respondent had or- dered the discharge. He further admitted that Dorbin had been discharged because he had joined the picket line conducted by civil rights organizations to compel Re- spondent to hire Negro drivers. On the following day, August 7, and pursuant to instructions from Hughes, Ron- ald Davis, manager of Respondent's Pasadena-Glendale branch, contacted Dorbin; Davis, it appears, was so designated because Barrial was away on vacation. Davis offered Dorbin reinstatement, stating that a mistake had been made. Dorbin ac- cepted the offer, but requested and was given 6 weeks' leave of absence. Not long thereafter, he resigned from Respondent's employ. According to Dorbin, Davis told him on August 7 that there were many reasons why a man could be discharged and that on the next occasion it would not be a mistake. It is clear from Davis' testimony that he did question Dorbin on this occasion concerning his sentiments, in the civil rights area. And, after some evasive testimony, he admitted that he knew that Dorbin's picketing was the source of his difficulties and that this had been discussed with Dorbin. On August 13, Abramson filed charges against Respondent as well as against his Union. On August 16, a presumably unbiased panel of four, two from each side, met and voted against the reinstatement of Abramson The two signatories for Respondent were Barrial and Hughes, and Union Officials Lucas and Shore signed for Local 640. Their decision reads as follows: Grievance Hearing A Grievance was held August 16, 1963 between Tanner Motor Livery, Ltd., and Chauffeurs Union, Local 640. Grievance Committee convened at 11:10 A M. Representing the Company: John Hughes and Frank Barrial. Representing the Union: Jack Shore and James A. Lucas. This Grievance was held in regard to the discharge of driver Martin P. Abramson of the Santa Monica Branch. Moved by John Hughes and seconded by Frank Barrial that the discharge be upheld. Carried unanimously. The record does not disclose the grievance clause language of the contract be- tween the parties and no contention is made that arbitration may result. Indeed, the parties agree that arbitration over this discharge is not pending The case of Dorbin has not been processed through the grievance procedure. It is readily ap- parent, therefore, that even if the decision in the Abramson case were honored by the Board, ignoring the tainted composition of the panel, this would not dispose of the case of Dorbin. C Analysis and conclusions A number of issues are presented for consideration. (1) Was this activity by Abramson and Dorbin a concerted activity? (2) Was Abramson's discharge pre- textual? (3) Is the panel's decision a defense to Respondent in the case of Abram- son? and (4) Was the activity by Abramson and Dorbin a protected concerted ac- tivity within the meaning of Section 7 of the Act? While I am of the belief that the last question is to be answered in the negative, the Board may view this other- wise and the other topics have therefore been treated hereinafter. - * While this is hearsay as to Knight and Hurley, it is undenied, and the inference is well warranted on this record, that it reflects the troth It also demonstrates that the panel which considered Abramson's discharge was inherently incapable of being an im- partial one, whether or not the union representatives were arrayed against Abramson TANNER MO10R LI\ ERY, LID 1411 I Conceited activities It is not clear whether, in the Court of Appeals for the District of Columbia, employer knowledge that activities are conceited in natuic is a requisite to protec- tion under Section 7 of the Act International Ladies' Garment Workers' Union, AFL-CIO v N L R B (Walls Manufactutmg Co ), 299 F 2d 144 (C A D C ), 321 F 2d 753 (C A D C ), cert denied 375 U S 923 It appears, however, that em- ployer knowledge may not be a prerequisite in the Court of Appeals for the Ninth Circuit Salt River Valley Water Liters' Association v N L R B, 206 F 2d 325 (CA 9) And it would seem that the Supreme Couit is of the view that such advance knowledge is not a prerequisite See N L R B v Washington Aluminum uCompany,370 U S 9 But, in any event, Abramson and Dorbin concertedly agreed to appeal to Respondent to hire a Negro employee, and Abramson presented this plea on July 23 And while Abramson may not have conveyed the concerted aspect of the matter to Barrial on that date, at least by the following day, Dorbin in es- sence acquainted Bariial with the fact that both men were involved in the matter Accordingly, Respondent was put on knowledge thereof It would also seem that the planning by Abramson and Kellough, prior to the latter's application for work on July 24, was a concerted activity because Kellough, as a job applicant fell within the definition of an employee And Barrial perforce knew that Abramson and Kellough were jointly involved See Phelps Dodge Corp v NLRB, 313 US 177 i find, therefore, that Abramson was engaged in a concerted activity at the time of his discharge on July 29 and that Respondent knew thereof As indicated, on August 6, Dorbin joined the picket line, consisting of Abramson and nonemployee advocates of nonsegregated hiring policies, and was discharged that evening The record is quite clear that this picketing by Dorbin was the cause of his discharge I find that Doibin was also engaged in a concerted activity while picketing on Au- gust 6, viz, picketing in protest of Respondent's alleged discriminatory hiring policy Treated hereinafter is the issue whether these were protected concerted activities within the meaning of Section 7 of the Act 2 The pretextual discharge of Abramson Late on July 24, Abramson was backing his cab into a cabstand and the vehicle struck a fire hydrant located close to the curb This caused a dent in the bumper approximately 3 inches long, 1 inch deep, and 1 inch wide When he checked in his cab, he pointed out the minor damage to Barrial who instructed him to make out an accident report As will appear, Respondent chose to consider this as a serious dereliction on his part On the following day, Abramson pulled into a taxicab loading zone in front of an apartment building and parked the vehicle He opened his door and started to alight, intending to assist a passenger with her parcels At this point, a passing ve- hicle struck the door, missing Abramson, but springing the door and preventing its closure, in addition, a vertical crease or dent was made in the door There was no unuiy to Abramson or the passenger Abramson discharged the passenger and promptly made out an accident report He testified that he considered the second incident as meriting a report, unlike the first which he contended, in a talk with Barrial, was a common occurrence among drivers As set forth, he was discharged by Barrial on July 29 pursuant to a memorandum from Hughes dated July 26, Barrial conceding that he would not have discharged Abramson under the circumstances Hughes testified that he received the two accident reports on July 26, and that, unaware of his involvement in civil rights activities he decided to dischai ge Abram- son on th'it date because of the two accidents The basis of the decision was that Respondent assesses drivers with demerits for accidents or traffic violations, and an accumulation of five demerits means automatic discharge The demei it schedule It is 19 alphabetical codes which assess demerits ranging from 1 to 5 in number Except for 2 categories not involved heiein, 17 of the 19 have ranges from I to 2 demerits to 3, 4 or 5 As for the first incident, Hughes mnplied code L which is "Starting or backing without due caution" and has a range of two to five demerits Hughes decided to assess two demerits for this offense Foi the second, he applied code N which is "Lack of control due to inattention" and dines a range of one to four demerits He decided to assess three demerits for this offense Abramson having thus eained five demerits, Hughes decided to discharge him 1412 DECISIONS OFrNATIONAL LABOR RELATIONS BOARD For several reasons, this treatment of Abramson will not withstand analysis. (1) For reasons previously set forth, I have found, contrary to Hughes and' Bar- rial, that the latter told Hughes of Abramson's civil rights activities prior to his discharge . In addition , the record discloses that Davis , substituting for Barrial, han- dled the Dorbin reinstatement pursuant to Hughes' instructions following his dis- charge clearly based upon civil rights activity. Stated otherwise, this fell within the area of Hughes' responsibility. (2) The fact that Dorbin was admittedly discharged, albeit briefly, for engaging in peaceful picketing for precisely the same objective lends supports to the contention of the General Counsel that Abramson's discharge was similarly motivated. (3) While Hughes attempted to make much of Abramson's two infractions of the rules, and these are analyzed below, weight is properly given to the fact that as recently as July 24, Barrial, in the presence of a union representative, saw fit to read to Abramson a letter from a customer praising Abramson for the manner in which he performed his duties. This tends to support Abramson's claim that his record of approximately 11/2 years was a good one. (4) As noted, Barrial admitted to Abramson that were the decision his, Abram- son would not have been discharged for these two purported infractions. (5) A comparison of the application of Respondent's demerit schedule in Abram- son's case with other cases warrants the conclusion that Abramson received unduly heavy-handed treatment. For example, in April 1963, driver Fennell had what Respondent considered to be an avoidable accident in that he "opened door into the path of a bus. He knew the bus was beside the cab and should not have opened the door until the bus was gone or until he was sure it was not going to move." Hughes placed this in a category entitled "Miscellaneous" with a demerit range of one to, five and assigned but one demerit to Fennell. By contrast, he placed Abramson's door incident in category N with a range of but one to four demerits and gave Abramson three demerits. At the very least, the incidents were comparable; if anything, Fennell's would appear to be the more seri- ous because, unlike Abramson, he knew of the presence of the bus. In addition, it was solely his fault. In Abramson's case, apparently no consideration was given to, the fact that the driver of the other vehicle may have contributed to the accident. Indeed, Abramson's comment on his accident report that he looked first before open- ing the door appears to have been disregarded or rejected by Hughes. About 2 weeks later, the same driver, Fennell, had an intersection accident which, Hughes placed in category S, with a range of two to five demerits. The description, of the accident , according to Respondent 's records , is that "Fennell stopped at a through street, then entered the intersection and was struck by a motorcycle. Had Fennell properly checked traffic, he would have seen that the motorcycle was too• close and could have waited for it to pass safely." He was given two demerits because of the incident. Noting that this range was from two to five, with a mini- mum penalty of two as contrasted with a minimum penalty of one in code N, it would seem that this was a more serious area, particularly as it involved a moving vehicle, unlike Abramson's parked vehicle. Yet Abramson received three demerits, enough to make the fatal of five. Perhaps a better consideration of Hughes' ob- jectivity and motivation herein is reflected in his written overstatement of Abramson's second incident which he described as "Sheer negligence at its worst," hardly an accurate appraisal. The General Counsel has also directed attention to two incidents involving driver Olson in October of 1962. On October 12, according to the report, "Olson opened door of car into traffic. Door was struck and damaged by a passing car. Passing car was also damaged. Olson should have checked traffic before opening door." This also was placed in code N, as was Abramson's similar incident, but only one demerit , rather than three, was assessed . Hughes testified that he believed that he assessed but one demerit because there was "probably" no passenger in the cab at the time. There is no evidence to disclose whether or not this was the fact. In this respect, it may be noted that the General Counsel has also drawn attention to the fact that in July 1963, driver Nadovic was assessed but one demerit when he closed the cab door on a passenger 's finger; Hughes, if he is to be credited, manifestly considered this to be less serious than backing into a hydrant. Again, in October 1962, driver Olson received two demerits when he was found responsible for striking another car in an intersection . Hughes pointed out that the other car had almost crossed the intersection at the time Olson struck it and that he failed to slow down to permit the other vehicle to pass. This, too, Hughes allegedly considered as serious as backing into a hydrant. TANNER MOTOR LIVERY, LTD. 1413 There is evidence that Respondent ignored minor injuries to its cabs which did not involve traffic violations and that Abramson's hydrant incident was exaggerated. Thus, 1 year earlier, Abramson, as he testified, scraped another vehicle which was improperly parked in the company garage, putting a crease on the side of his cab; this, it is clear, was as much of an injury as the hydrant incident, if not more so. Pursuant to Barrial's instructions, Abramson started to fill out a report, but Barrial .intervened and tore it up, telling him to forget the matter. Dorbin similarly testified about an incident in 1962 when he backed out of a driveway and neglected to make a turn, this causing the rear of the cab to go over a retaining wall; the fault was his. It was necessary for a tow truck to lift the rear .of the cab back onto the roadway. Both he and Barrial observed that there was a ,crease in the cover of a shock absorber. Obviously considering the injury minor, Barrial, as Dorbin testified, told him not to 1-other making out an accident report.5 Other instances in the reports demonstrate that these penalties are quite elastic and can be tailored to fit the case or to reflect motivation. In the present instance, I find that they reflect an unduly heavy-handed motivation on the part of Hughes in the case of Abramson. I find that Abramson was treated disparately and that but for an outside cause, viz, his civil rights activity, he would not have received a total of five demerits. 3. The grievance decision As indicated, a grievance hearing was held in the Abramson case on August 16, "and the matter was decided adversely to him. The panel of four consisted of Man- agement Representatives Hughes and Barrial and Union Representatives Shore and Lucas. I am of the belief that this decision is not entitled to recognition by the Board. It is entirely clear that Abramson could not possibly have obtained a favor- able majority. Fifty percent of the panel were directly involved in the decision to ,discharge him. Hughes had made the decision and Barrial, his subordinate, had implemented it. It is as though the district attorney who prosecutes the case has an equal vote with the judge in deciding it.s Our system of jurisprudence has always demanded an impartial trier of the fact. Indeed, in order to avoid the slightest indication of anything to the contrary, Con- gress saw fit to amend this very Act to make the General Counsel an independent -official and not an appointee of the Board which decides the cases he prosecutes. The present case may also be likened to a situation where a two-man appellate court reviews the decision of a one-man lower court with the lower judge sitting as a member of the two-man panel. The very language of the instant grievance decision reflects the impossibility of an :unbiased decision by what amounts to a "kangaroo court," for it states, "Moved by John Hughes and seconded by Frank Barrial that the discharge be upheld. Carried unanimously." And for that matter, one may well question the objectivity of the Union, inasmuch as it too was the recipient of an unfair labor practice charge filed by Abramson. I find, therefore, under the foregoing circumstances, that fairness, equity, impar- tiality, and good conscience dictate that this decision should not be recognized by the Board, and I do not recognize it herein. And, in any event, it does not dispose of the case of Dorbin. See The Youngstown Cartage Company, 146 NLRB 305. 4. Is this a protected concerted activity within the meaning of Section 7 of the Act? If this activity is to fall within the protection of Section 7 of the Act, the only 'haven is that portion thereof which gives employees the right "to engage in other ,concerted activities for the purpose of ... mutual aid or protection ...... At first blush, it would seem that this haven exists. It has long been recognized that con- certed activities directed to working conditions fall within the protection of Section 7 of the Act. See, e.g., N.L.R.B. v. Washington Aluminum Company, Inc., 370 U.S. 9. 5 Barrial testified that there was no damage to the cab in the Dorbin Incident . He denied -tearing up the report in the Abramson incident, although he did not recall the occasion. T credit Dorbin and Abramson here as elsewhere As indicated, they were clear and forth- right witnesses and they did not attempt to embellish their testimony. Also, I believe that -their recollection of incidents involving their cabs' Is more reliable than that of Barrial ,who had 50 to 60 drivers and their problems to contend with and is on duty or on call around the clock. O These remarks are not-intended to apply to, a decision by an impartial arbitrator, to a tripartite panel or to a panel where the biased and directly involved party has less than a majority vote. 1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Abramson and Dorbin believed that their working conditions would be improved if they worked with coworkers who were not purely Caucasian. I believe, therefore, that in a literal sense, this did affect their working conditions. On the other hand, the Court noted in Washington Aluminum that Section 7 of the Act does not protect all concerted activities, citing various examples not involved herein such as those that are in breach of contract, violent, or unlawful. The thought immediately presents itself that if Section 7 establishes the Board as a forum for civil rights matters, the lengthy debates now being carried on in Congress in an effort to obtain long overdue civil rights legislation are unnecessary, at least insofar as they relate to the handling of the Fair Employment Practices Commission type of work. The fact that during World War II a Fair Employment Practices Commission was established to handle racial discrimination on Government contracts would indicate that the Board, then administering, in essence, the same Section 7, was not consid- ered to be the forum or, more particularly, was not considered to be endowed with authority to act in this field.? It is of interest to note that the Supreme Court recently applied a similar criterion, although in a different context, where it pointed out that although union activities were "literally within the definition of secondary activities" forbidden by Section 8(b)(4) of the Act, they nevertheless were primary activities which Congress had intended to protect. United Steelworkers of America v. N L.R.B. & Carrier Corp., 376 U.S 492. No authority has been cited to me that Congress ever intended Section 7 to be applicable to the present context, and I think it a fair statement that such authority does not exist. Indeed, a reading of Section 2(9) of the Act and its description of a labor dispute, relied upon by the Supreme Court in its Washington Aluminum de- cision, indicates a concern with "any controversy concerning terms, tenure or con- ditions of employment, or concerning She association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or condi- tions of employment " This would appear to indicate rather a broad range of topics customarily bargained upon by a labor organization or sought by a group of em- ployees such as wages, hours, hiring, physical accommodations, retirements, job transfers, layoffs, seniority, discharges, safety, etc. See, e.g., N.L.R B. v. Belfry Coal Corporation, 331 F 2d 738 (C.A. 6). If the present case constitutes a violation of Section 8 (a) (1) of the Act, it would seem to follow equally that a similar cause of action would lie upon alleged reli- gious discrimination For example, does Section 7 protect a strike by employees to compel an employer to hire or discharge Catholics or Protestants, as the case may be, so as to have a working force which would reflect the religious composition of the community and grant workers their desire to work in a plant which would reflect the religious composition of their neighborhood? Or what if the objective was solely to permit them the comfort of working with their coreligionists9 Or what if avowed atheists found it uncomfortable to work with those who attended a church or syna- gogue and urged appropriate remedial action upon their employer? Or what if employees born west of the Rockies brought pressure upon their employer to oust all those native to other areas? In the literal sense, all these hypotheses affect working conditions. Yet, I do not believe that the Act under consideration herein was ever intended to cope with these problems and, more specifically, the problem posed by this complaint. Hence, judi- cial or administrative restraint appears to be indicated rather than a legislative approach. ` It hardly needs stating that the color problem involved here exists, is serious, and has long merited legislative attention and relief. And I trust that the pending legis- lation with supply a solution and remedy. However, I am constrained to conclude that Section 7 of the National Labor Relations Act does not protect the complainants herein and I shall recommend that this complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. The operations of Respondent, Tanner Motor Livery, Ltd., affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act by discharging Martin Abramson and Sanford M. Dorbin. 71 am treating here solely with the present case and not with those cases where the Board has long policed a bargaining representative by requiring it to represent its con- stituents in a nondiscriminatory manner SERVICE STEEL DIVISION OF VAN PELT CORPORATION 1415 RECOMMENDED ORDER In view of the foregoing findings of fact and conclusions of law, it is recommended that the complaint be dismissed in its entirety. Service Steel Division of Van Pelt Corporation and Local 247, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, Ind. Case No. 7-CA-4443. September 09, 1964 DECISION AND ORDER On June 23, 1964, Trial Examiner Lloyd Buchanan issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices in violation of Section 8 (a) (1) of the Act, as set forth in the attached Trial Examiner's Decision. With respect to certain other unfair labor practice allegations, the Trial Examiner recommended dismissal. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. The Respondent filed a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the excep- tions, briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner and orders that the Respondent, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 1 No exceptions were filed to the Trial Examiner's findings that the Respondent unlaw- fully interrogated and threatened its employees in connection with their union activities in violation of Section 8(a) (1) of the Act. TRIAL EXAMINER 'S DECISION The complaint herein ( issued January 2, 1964; charge filed October 30, 1963) alleges that the Company has violated Section 8 (a)(3) of the National Labor Re- lations Act , as amended , 73 Stat. 519 , by discharging and failing to reinstate Henry J. 148 NLRB No. 143.