Brashear Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1939

13 N.L.R.B. 191 (N.L.R.B. 1939)

In the Matter of BRASHEAR FREIGHT LINES, INC. and INTERNATIONAL
ASSOCIATION OF MACHINISTS , DISTRICT No. 9, AFFILIATED WITH THE
AMERICAN FEDERATION OF LABOR
Case No. C-580.-Decided June 10, 1939
Trucking Industry-Interference, Restraint, and Coercion: distribution of mis-
leading pamphlet covering Act ; anti-union statements of supervisory employees ;
espionage by supervisory employees of union meeting ; refusal to meet with union
representatives-Collective Bargaining: charge of failure to bargain collectively
dismissed-Discrimination: discharges for union membership ; charges of dis-
crimination dismissed as to one employee-Strike: result of employer's unfair
labor practices-Reinstatement Ordered: discharged employees; strikers upon
application, dismissing newly hired employees if necessary-Back Pay: awarded
to discharged employees ; awarded to striking employees who are not rein-
stated or placed on preferential list within 5 days of application for reinstatement
Mr. Joseph A. Hoskins, for the Board.
Mr. Stephen C. Rogers, of St. Louis, Mo., for the respondent.
Mr. Sumner Marcus, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by International Association of Machinists,
District No. 9, herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the Four-
teenth Region (St. Louis, Missouri), issued its complaint dated
December 10, 1937, against Brashear Freight Lines, Inc., St. Louis, Mis-
souri, herein called the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1), (3), and (5), and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint, accompanied by notice of
hearing, were duly served upon the respondent and upon the Union.
The complaint alleged in substance that, from about April 1937
to the date of the issuance of the complaint, the respondent had dis-
13 N. L. R. B., No. 25.
191
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
couraged its employees at St. Louis, Missouri, from membership in
the Union by statements and speeches hostile to the Union, by spying
upon the activities of its employees who were members of the 'Union,
by preparing and distributing to its employees a printed paper cap-
tioned "A message to employees. Facts about the Wagner Act," and
by other means; that the respondent had terminated the employment
of Brace Bell, Jack Lupardus, and Francis Walton, because they had
joined and assisted the Union; and that, from about June 17 to about
July 23, 1937, the respondent had refused to bargain collectively in
good faith with the Union which represented a majority of the em-
ployees of the respondent within an appropriate unit.
On January 11, 1938, the respondent filed its answer, in which it
admitted distributing the said printed paper to employees but denying
that said act constituted any unfair labor practice within the meaning
of the Act and in which it denied that it had engaged in any of the
other alleged unfair labor practices.
Pursuant to notice, a hearing was held from January 17 to January
20, 1938, at St. Louis, Missouri, before Joseph F. Kiernan, the Trial
Examiner duly designated by the Board. The Board and the respond-
ent were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties.
At the hearing the respondent moved that certain paragraphs of the
complaint be made more definite and certain. The Trial Examiner
denied this motion. At the close of the hearing the respondent moved
to dismiss the complaint. The Trial Examiner denied this motion.
The Trial Examiner made several rulings on other motions and on
objections to the admission of evidence. The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
On April 9, 1938, the Trial Examiner issued his Intermediate Re-
port which was filed with the Regional Director and duly served upon
all the parties, finding that the respondent had engaged in and was
engaging in unfair labor practices, within the meaning of Section
8 (1), (3), and (5) of the Act. On May 6, 1938, the respondent filed
exceptions to the Intermediate Report and a brief in support thereof.
Although notified of its right to do so, the respondent did not request
oral argument before the Board.
The Board has reviewed the exceptions to the Intermediate Report
and the brief filed by the respondent, and save as consistent with the
findings, conclusions, and order hereinafter set forth, finds the excep-
tions to be without merit.
BRASHEAR FREIGHT LINES, INCORPORATED 193
Upon the entire record in the case, the Board makes the following :
FINDINGS or FACT
1. THE BUSINESS OF THE RESPONDENT
Brashear Freight Lines, Inc., the respondent, is a Missouri corpora-
tion engaged in the transportation of freight by truck, tractor, and
trailer between St. Louis, Missouri; Indianapolis, Indiana; Chicago,
Illinois; Tulsa, Oklahoma; Kansas City, Missouri; and other cities.
Its principal office and place of business are at St. Louis, Missouri.
During the year 1937, it transported goods and freight amounting to
108,814,872 tons, of which 93,465,360 tons were transported in inter-
state commerce.
The respondent maintains as a part of its transportation system
various terminals, shops, and warehouse facilities at St. Louis and
Kansas City, Missouri; Indianapolis, Indiana; Chicago, Illinois; and
Tulsa, Oklahoma. The present proceeding involves only persons
employed by the respondent at St. Louis, Missouri.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists, District No. 9, is a labor
organization affiliated with the American Federation of Labor, admit-- I
ting to its membership all persons employed in the garages, yards, and
shops at the respondent's St. Louis truck terminal, excepting super-
visory, clerical, and negro employees, and carpenters.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
During the latter part of April 1937 the Union began to organize
employees engaged in inspection, maintenance, and repair of equip-
ment for the respondent at St. Louis, Missouri. While this organiza-
tional drive was being carried on by the Union, the respondent on
May 19, 1937, distributed to its employees a notice entitled "A message
to employees. Facts about the Wagner Act." The notice, its declared
purpose being to prevent misunderstandings concerning the Act which
had arisen from allegedly misleading statements and propaganda, pur-
ported to describe certain rights and obligations arising under the Act.
It stated that an employee was not required to join a labor union or
any other organization; that an employer was not obliged to reach
an agreement with a union as a result of collective bargaining; that
the Act does not require closed-shop agreements; that the Act permits
individual bargaining; that the Act does not prohibit independent
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company organizations; and that an employee might be discharged for
failure to fulfill his duties.
The Board has in a number of cases considered notices similar in
wording and import.' It has consistently found that the distribution
of such notices constitutes an interference with the rights guaranteed
employees in Section 7 of the Act. The basis for such finding was
fully set forth in the case of Mansfield Mills, Ine.,2 wherein the Board
declared with regard to two leaflets similar to the notice here involved :
Neither leaflet can be deemed an unbiased explanation of the
Act. Both alike neglect to set forth in clear terms the fundamental
purpose of the Act to eliminate certain sources of industrial con-
flict "by encouraging the practice and procedure of collective bar-
gaining and by protecting the exercise by workers of full freedom
of association, self-organization, and designation of representa-
tives of their own choosing, for the purpose of negotiating the
terms and conditions of their employment or other mutual aid or
protection." In both alike, the emphasis upon what the provisions
of the Act do not purport to do, rather than upon the positive
principles and the rights which the Act establishes, serves to dis-
tort its true significance and to mislead readers of the leaflets with
respect to employees' rights under the Act, in contradiction of
their avowed intent "to prevent misunderstanding." The dis-
tribution by an employer of such leaflets among his employees
constitutes an attempt to circumvent the Act by interfering with
his employees' right, unprejudiced by the, employer, to make up
their own minds regarding self-organization.
The hostility of the respondent to the Union was further demon-
strated by the activities of Oscar Grott, foreman of the respondent's
maintenance department. Numerous employees testified to attempts
on Grott's part to discourage membership in the Union. Henry Burch,
an employee, testified that during the early part of June 1937 Grott
asked him whether he belonged to the Union and stated that he did
not believe in paying dues to a union in order that someone might
ride in a "swell car." Another employee, Jack Lupardus, testified that
on June 23 Grott declared that he would discharge everybody in the
shop who belonged to the Union if it was necessary to do so in order
to hold his own job. Hooge, an employee, testified that about July 1
Grott told him that he'had better drop out of the Union if he did
not want to lose his job. Walton, an employee, testified that about
1 See Matter of Man-sfteld Miils, Inc. and Textile Workers Organizing Committee,
3 N L R. B 901; Matter of Nebel Knitting Company, Inc. and American Federatwn of
.Hosiery Workers , 6 N. L. R . B. 284.
a Matter of Mane/leld Mills. Inc. and Tertele Workers Organizing Committee,
:3 N. L. R. B. 901.
BRASHEAR FREIGHT LINES, INCORPORATED 195
July 13 Grott stated to him that he knew what employees were members
of the Union; that the respondent would close its shop before per-
mitting a union to organize its employees; that he felt that Walton
had "done him dirt" by not coming to him prior to joining the Union;
and that Walton should get on the "right side of the fence." Still an-
other employee, Fann, testified that Grott, declaring that the respond-
ent would close its shop rather than have a union, asked him what he
intended to do about his union card.
Although Grott admitted that he had talked with Walton and Fann
about the time testified to by these employees, he denied having dis-
cussed the Union with these employees or the other employees above-
mentioned. He stated that he had told Walton to "get on the right
side of the fence," but that such statement arose from the fact that
Walton had been performing his work poorly and was in the nature
of a warning to him to do his work better in the future. He stated
that he told Fann and other employees to see Brashear, the respondent's
president, inasmuch as the latter had heard that the employees were
dissatisfied.
We cannot, in view of all the facts herein presented, accept as true
Grott's assertion that he did not make the statements attributed to
him by the various employees. It is not plausible, particularly in view
of the hostility of the respondent towards the Union as demonstrated
by the notices distributed to employees on May 19, 1937, that the em-
ployees fabricated the statements which they testified Grott made to
them concerning the Union. Nor is it to be believed that Grott's state-
ment to a member of a union that he should "get on the right side
of the fence" had reference merely to the nature of the work per-
formed by such employee. We find that Grott made the statements
attributed to him by the various employees whose testimony is con-
sidered above.
The complaint alleges that on or about July 12, 1937, the respondent,
through its supervisory employees, spied upon the activities of its
employees for the purpose of discouraging membership in the Union.
A number of witnesses testified that on the night of July 12 Grott
and Zenzen, the respondent's general office manager, drove several
times past the union headquarters at which the Union was holding a
meeting. Grott and Zenzen testified, in substance, concerning this in-
cident as follows : That an insurance company with which the respond-
ent had policies had complained that the trailer lights on the respond-
ent's trucks `had not been burning properly; that they had on the
.night in question been checking on the trucks to ascertain whether or
not the trailer lights were, in fact, working properly ; that while so
investigating they had stopped at a drug store which made "sweet
cokes" of a type Grott preferred; that although the particular drug
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
store was across from the union headquarters they did not at the time
know such to be the fact ; that while driving in this particular neigh-
borhood they thought they saw Al Hooge, one of the respondent's em-
ployees; that they circled the block to determine whether the person
they saw was , in fact, Hooge; and that when someone yelled to them
"are you looking for somebody ," they drove on and left that particular
neighborhood.
In view of the fact that the record discloses that throughout the
period during which the Union was seeking to organize employees of
the respondent Grott was hostile to it and inquisitive concerning the
membership of the Union , we cannot accept the explanation given as
to the presence of Grott and Zenzen in the vicinity of the union head-
quarters at the time in question . Nor do we feel that any plausible
explanation has been given as to the action of Grott and Zenzen in
driving past the union headquarters a number of times.
The respondent further manifested its hostility to the Union and its
attempts to discourage the Union in its organizational activities by
its actions when the Union attempted to carry on bargaining negotia-
tions with the respondent . On June 17, 1937, the Union sent Bra-
shear , the respondent 's president , a letter stating that it represented
a majority of the respondent 's employees , and enclosed an agreement
which it requested the respondent to sign. Brashear did not reply
to this letter . Between June 17 and July 16, Weber, organizer for the
Union, telephoned the respondent 's plant four times and came to the
respondent 's office twice in an effort to talk to some person in au-
thority. He was uniformly unsuccessful . Brashear testified that
while he knew that Weber had been persistent in his efforts to reach
him, he had not attempted to get in touch with Weber because he
had other important matters to which he was obliged to devote his
time. On July 16 Weber wrote a second letter to the respondent, re-
iterating his request for a conference . On July 17 Brashear 's secre-
tary replied to this letter and stated that Brashear was out of town,
but would call Weber as soon as he returned . Brashear did not call
Weber. On July 20 Weber again went to the respondent 's office,
where he found Brashear but was unable to discuss the agreement
with him at this time because Brashear said he was too busy. Bra-
shear did, however , make an appointment for a conference at 1: 30
p. in. on July 22 . Brashear did not keep this appointment.
On July 23 Weber went to the respondent 's office at 7: 45 a. in. and
again requested of Brashear a conference to discuss the agreement
which he had proposed to respondent . Brashear said that he was too
busy to confer with Weber and that in^ any case it would do no good
to confer since he could not pay the wages which ` the Union re-
quested. When Weber suggested that they discuss the other features
BRASHEAR FREIGHT LINES, INCORPORATED 197
of the contract, Brashear said the entire agreement was undesirable.
Brashear also stated, during the course of the conversation, that he
did not desire a union in the shop since he feared that it might injure
his machinery and equipment as, he claimed, a union with which
he had dealt about 10 years previously had done. The respondent
states that question was raised by Brashear at the time of this talk
with Weber concerning whether or not the Union represented a
majority of the employees in the unit which it claimed as appropriate.
Although the testimony is contradictory as to whether such question
was raised, the record shows that, if so, it was the first time through-
out the Union's attempts to negotiate that such question was raised.
Inasmuch as Brashear clearly demonstrated that the respondent
did not intend to negotiate with the Union, Weber signified to a
number of employees who were standing nearby that they should
go on strike. Within a short time, five employees whose duties in-
volved inspection, maintenance, or repair work, left their work and
established a picket line in front of the respondent's plant. A sixth
employee joined in the strike the following day.
An examination of the repeated efforts made by the Union to dis-
cuss an agreement with respondent from June 17 to July 23, 1937,
discloses that not only did the respondent refuse to deal with the
Union, but refused in a manner calculated to discourage its employees
from continuing their affiliation with the Union. Whether or not
the Union represented a majority of respondent's employees during
this period, the respondent made it clear through its ignoring of the
Union's representative as well as through the acts and statements of
its supervisory oflicers, that it would not deal with the Union even if
it did represent a majority of the respondent's employees. The man-
ner and expression of respondent's refusal to deal with the Union
constituted interference, restraint, and coercion of its employees in
their right to self-organization and collective bargaining.'
We find that by the distribution of a notice concerning the Wagner
Act to its employees, by the anti-union statements of its supervisory
officials, by its surveillance of a union meeting and of other activities
of the Union, and by its conduct when the Union sought to have it
enter into bargaining negotiations, the respondent has interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
We further find that the strike on July 23, 1937, was caused by
the respondent's unfair practices extending over a period of several
•Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9
N L. R. B. 219; Matter of Alabama Mills, Inc and Local No. 2051, United Textile
Workers of America, 2 N. L . R. B. 20; See also Matter of Oregon Worsted Company, a
corporation and United Textile Workers of America, Local 2435, 1 N L. R B 915
187930-39-vol. 13-14
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
months and, in particular, its conduct when the Union attempted to
have it enter into bargaining negotiations.
B. The discharges
Brace Bell. Bell entered the employ of the respondent during
August 1934 and was engaged as a mechanic at the time his employ-
ment terminated in June 1937 . On June 13, 1937, he injured his eye
while at home and as a consequence remained away from work until
June 21. On the latter date, Bell reported to his foreman , Grott, who
stated that Bell should report to the respondent 's doctor before he
would be permitted to return to work. The record does not indicate
that this constituted any unusual requirement . Bell reported to the
respondent's doctor who, according to Bell, stated that the latter was
fit for work . When Bell, thereafter , reported to Grott, the latter
stated that Bell would not be permitted to work until receipt of the
doctor's report . Such report reached the respondent several days later
and stated that Bell had "a slight scleral hemorrhage of the right
eye." Upon instructions of his superior , Grott notified Bell that the
doctor's report had not been satisfactory and that it would be necessary
for Bell to be examined again . Bell informed Grott that he had a slip
from his own doctor stating that he was fit for work . Grott replied
that Bell would be put back to work if he produced such slip. This
Bell failed to do and did not thereafter return to the plant. The
respondent stated in its brief that it would rehire Bell if work became
available.
We conclude that it has not been established that the respondent
terminated Bell 's employment . We shall , therefore , dismiss the com-
plaint in so far as it alleges that the respondent discriminated in regard
to Bell's hire and tenure of employment by discharging him on or
about June 21, 1937.
Jack Lupardus. Lupardus began his employment with the respond-
ent on March 3, 1937 , as a greaser . He joined the Union on May 21 and
attended its meetings thereafter . He was discharged on June 23 , 193'7,
allegedly because several days previously he had broken the throw-out
collar in the clutch of one of the respondent 's trucks. Grott testified
at the hearing that, in addition , Lupardus had a "know it all " attitude
and frequently lost time from his work.
The evidence discloses that Lupardus had driven the truck in
7uestion on the day the clutch was broken ; that he had stopped the
truck on that day by releasing the clutch while the brakes were on
and the car was in gear ; and that this method of stopping ,the truck
was contrary to the manner in which he had been instructed by Grott.
The latter testified that the throw -out collar was broken by Lupardus'
stopping the truck by the wrong method . He also testified that he
BRASHEAR FREIGHT LINES, INCORPORATED 199
informed Lupardus at the time of his discharge that the throw-out
collar had been broken and that this was the reason for his discharge.
Lupardus testified that when he left the truck on the day in question
it was in perfect condition. Three of the respondent's mechanics testi-
fied, moreover, that it was impossible to break the throw-out collar by
releasing the clutch in the manner which Lupardus did. It is signifi-
cant also that Burch, the mechanic in charge of the Diesel engines at
the plant, stated at the hearing that "he (Burch) might have broken
the throw-out collar himself when he kicked it out of gear with the
motor running." Lupardus denied that Grott ever mentioned to him
the fact that the throw-out collar had been broken and testified further
that on the day of his discharge he asked Grott whether the breaking
of the collar, which he had learned elsewhere had taken place, had any-
thing to do with his discharge, and that Grott had replied that it did
not. Lupardus also testified that Grott stated on the day of his dis-
charge that he would fire every union man if necessary to hold his own
job. Grott denied that he made this statement.
With respect to the assertion that Lupardus had lost time from
his work, Grott testified that Lupardus' wife on several occasions had
called Lupardus from his work and that Lupardus frequently bothered
him about his family difficulties. Lupardus admitted that he left work
once for 2 hours, but that Grott had granted him permission to do so.
Although Grott denied that such permission had been granted, it is
clear in any case that Lupardus' absence from work was not the reason
for his discharge.
We are convinced on the basis of the entire record that Lupardus'
testimony with regard to the circumstances surrounding his discharge
is more trustworthy than that of Grott. We conclude that the evi-
dence does not establish that Lupardus was responsible for the break-
ing of the collar nor that the respondent believed he was so re-
sponsible and further conclude that Grott used the fact that
Lupardus had driven the truck whose throw-out collar had been
broken merely as an excuse to discharge an active member of the
Union.
We find that the respondent discharged Lupardus on June 23, 1937,
because of his membership and activity in the Union, thereby dis-
couraging membership in the Union and interfering with, restraining.
and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
Francis Walton. Walton began his employment with the respond-
ent in 1931 and worked as a greaser from that time until his employ-
ment terminated on July 23, 1937. He joined the Union on May 22,
1937, and, as we have found above, was on July 13, 1937, censured
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Grott for so doing and advised to "get on the right side of the
fence."
The respondent states that Walton was on numerous occasions late
for work; that he frequently failed to turn in his work tickets
properly; that he was constantly interrupted by his wife while at
work; and that on July 2, 1937, he allowed the oil to get "dangerously
low" in the crankcase of a particular truck. The respondent asserts
that Walton's failure to service the truck endangered an outfit costing
approximately $3,600 and that such neglect was the immediate cause
of his discharge. Although the discharge did not take place until
July 23, Grott testified that Brashear, the respondent's president,
was absent from the city until that time and that, in view of the
length of of Walton's employment with the respondent, he desired to
discuss the matter with Brashear before taking any final action.
Walton's duties covered the greasing of the respondent's equipment
and the helping of mechanics in their various duties, which included
work on motors, trucks, and transmissions. Although Walton was
the only regular greaser employed by the respondent on July 2, the
evidence shows that other employees did work which included
greasing. The truck in question was brought to the plant about
6 a. in. on July 2 by a driver named Hoskins following a run from
Indianapolis, Indiana. While driving to St. Louis on the morning
in question, Hoskins checked the oil in the truck when about 20
miles from St. Louis and found that the oil was "at level." Walton
testified that he did not remember servicing the truck on the morning
in question, and Grott admitted that he was uncertain as to whether
the truck had been assigned to Walton for servicing on July 2.
That there was any neglect on Walton's part with respect to the
oiling of the truck clearly has not been established. The evidence
shows, moreover, that the truck was used during the day of July 2 and
that it was not at respondent's garage when Hoskins came for it to
start on his regular run on the night of July 2. When the truck was
turned over to Hoskins, he discovered that the oil was "dangerously
low." No showing was, however, made that Walton was at all
responsible for such condition of the truck or that he was in a
position to know anything about it.
We find that the respondent discharged Walton on July 23, 1937,
because of his union membership, thereby discouraging membership
in the Union and interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
BRASHEAR FREIGHT LINES, INCORPORATED 201
C. The refusal to bargain
1. The appropriate unit
The complaint alleges that "those employees engaged in the inspec-
tion, maintenance, and repair of motor trucks, tractors, trailers, and
other equipment, exclusive of office help, foremen and persons em-
ployed in a supervisory capacity, employed in the garages, yards and
shops of the respondent at its docks, yards and terminal in St. Louis,
Missouri," constitute an appropriate bargaining unit. No objection
to such unit was raised at the hearing. Further elaboration may be
desirable to indicate whether certain groups of employees are included
in the unit thus described. The evidence shows that approximately
11 employees are listed on the respondent's pay roll as mechanics and
that they work as mechanics. It is clear that they are to be included
within the unit. The respondent lists two employees as greasers, and
it is their task to service the respondent's equipment and on occasion
to assist the mechanics in their work. The greasers are also to be
included within the unit. The respondent lists three employees as
fireman, porter, and washer, respectively. There is no evidence in
the record concerning the nature of the duties which the three em-
ployees perform except in so far as their titles indicate their duties.
The titles indicate that the three men should be included within the
unit set forth in the complaint. We shall so include them, even
though, inasmuch as the three employees are negroes, and the Union
excludes negroes from its membership, the Union desires that the
tireman, porter, and washer be excluded from the unit. No evidence
was introduced to show any differentiation of functions which would
constitute a basis for the exclusion of the colored employees from the
unit which the Union claims as appropriate.' The respondent also
employs at its St. Louis terminal a clerk, foreman, and carpenter.
The Union desires to exclude these three employees from the unit,
stating that their functions differentiate them from the other em-
ployees. We shall exclude them from the unit. During the period
in question, the respondent carried on its pay roll one Dietrich who
was injured in the course of his employment in February, who had
worked only 1 or 2 days from that time to the early part of 1938,
and who received workmen's compensation during this period. It
employed one Muench for approximately a week from about June 13
to about June 20, 1937. It also employed one Wigger from June 18 to
4 See Matter of American Tobacco Company , Inc., Richmond Smoking Branch and
Committee for Industrial Organization, Local No . 472, 9 N L. R. B 579; Matter of
Floyd A. Fridell , individually and trading as Carolina Marble & Granite Works and
Granite Cutters' International Association of America, Charlotte Branch, 11 N. L R. B.
249.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 17, 1937. The Union apparently desires that Dietrich, Muench,
and Wigger not be considered as within the unit. However, the
duties of the three men were while working such as to bring them
within the unit which the Union claims as appropriate, and there is
no showing that either Muench or Wigger were employed on a tem-
porary basis. We conclude that Dietrich should be considered as
within the unit and that during the term of their employment
Muench and Wigger were within the unit.
We find that the employees of the respondent engaged in the in-
spection, maintenance, and repair of motor trucks, tractors, trailers,
and other equipment, exclusive of office help, foremen, carpenters, and
persons employed in a supervisory capacity, employed in the garages,
yards of shops of the respondent, at its docks, yards, and terminal at
St. Louis, Missouri, constitute a unit appropriate for the purposes of
collective bargaining and that said unit will insure to employees of the
respondent the full benefit of their right to self-organization and to
collective bargaining and otherwise effectuate the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
The complaint alleges that the respondent refused to bargain col-
lectively with the Union from about June 17 to about July 23, 1937.
The respondent employed 15 persons within the appropriate unit
on June 17, 1937; 16 such persons from June 18 to about June 20;
14 such persons from the latter date to July 17; and 13 such persons
from July 17 to the end of the period in question. The Union repre-
sented seven of the persons within the appropriate unit from June 17
to June 26, 1937,5 and six of these persons during the remainder of
the period in question.
On the basis of the foregoing, we find that the Union did not
represent a majority of the respondent's employees within the appro-
priate unit during the period from June 17 to July 23, 1937. We shall,
therefore, dismiss the complaint in so far as it alleges that the re-
spondent has refused to bargain collectively with the Union within
the meaning of Section 8 (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
c As we have found in Section' III, B above, Brace Bell, one of the union members,
quit his employment with the respondent on or about June 26, 1937.
BRASHEAR FREIGHT LINES, INCORPORATED 203
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we will order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the
Act and to restore, as nearly as possible, the situation that existed
prior to the commission of the unfair labor practices.
We have found that Francis Walton and Jack Lupardus were dis-
charged as a consequence of the respondent's unfair labor practices.
We shall, therefore, order the respondent to offer them reinstatement
to their former positions and to make them whole for any losses
which they have suffered by reason of their discharges, by payment
to each of them of a sum of money equal to that which each would
have earned as wages from the time of his discharge to the date of
the offer of reinstatement, less his net earnings e during that period.
Since the strike was caused, as we have found, by the respondent's
unfair labor practices, we shall, in accordance with our usual custom,
order the respondent, upon application, to offer reinstatement to their
former or substantially equivalent positions to those employees who
went out on strike and have not since been fully reinstated. Such
reinstatement shall be effected in the following manner : All em-
ployees hired after the commencement of the strike shall, if neces-
sary to provide employment for those to be offered reinstatement, be
dismissed. If, thereupon, by reason of a reduction in force there
is not sufficient employment immediately available for the remaining
employees, including those to be offered reinstatement, all available
positions shall be distributed among such remaining employees in
accordance with the respondent's usual method of reducing its force,
without discrimination against any employee because of his union
affiliation or activities, following a system of seniority to such extent
as has heretofore been applied in the conduct of the respondent's
business. Those employees remaining after such distribution, for
whom no employment is immediately available, shall be placed upon
6 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for his
unlawful discharge and the consequent necessity of his seeking employment elsewhere
See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and
Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L R. B 440.
Monies received for work performed on Federal , State, county , municipal , or other work-
relief projects are not deductible as "net earnings ," but, as provided below in the Order,
shall be deducted and paid over to the appropriate fiscal agency of the Federal , State,
county, municipal , or other government or governments which supplied the funds for said
work-relief projects.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a preferential list prepared in accordance with the principles set
forth in, the previous sentence, and shall thereafter, in accordance
with such list, be offered employment in their former or in substan-
tially equivalent positions, as such employment becomes available
and before other persons are hired for such work.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Association of Machinists, District No. 9, 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 Jack Lupardus and Francis Walton, thereby discouraging
membership in International Association of Machinists, District No.
9, the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, respond-
ent 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. The respondent, by refusing to reinstate Brace Bell, has not
engaged in an unfair labor practice within the meaning of Section
8 (3) of-the Act.
6. The respondent has not engaged in an unfair labor practice
within the meaning of Section 8 (5) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Brashear Freight Lines, Inc., St. Louis, Missouri, and
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Association of
Machinists, District No. 9, or any other labor organization of its
employees, by discharging any of its employees or in any other man-
ner discriminating in regard to their hire or tenure of employment;
or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
BRASHEAR FREIGHT LINES, INCORPORATED 205
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 National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Jack Lupardus and Francis Walton immediate and
full reinstatement to their former positions without prejudice to
their seniority and other rights or privileges previously enjoyed by
them ;
(b) Make whole Jack Lupardus and Francis Walton for any loss
of pay they have suffered by reason of their discharge, by payment
to each of them of a sum of money equal to that which he normally
would have earned as wages during the period from the date of his
discharge to the date of the offer of reinstatement, less his net earn-
ings during said period, deducting, however, from the amount other-
wise due each of the said employees, monies received by said em-
ployees during said period for work performed upon Federal, State,
county, municipal, or other work-relief projects; and pay over the
amounts 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) Upon application, offer to those employees who went out on
strike on July 23, 1937, and thereafter, immediate and full rein-
statement to their former or substantially equivalent positions, with-
out prejudice to their seniority and other rights and privileges, in
the manner set forth in the section entitled "Remedy" above, placing
those employees for whom employment is not immediately available
upon a preferential list in the manner set forth in said section;
(d) Make whole the employees ordered to be offered reinstatement
for any loss of pay they may have suffered by reason of respondent's
refusal to reinstate them, upon application, following the issuance
of this Order, by payment to them, respectively, of a sum of money
equal to that which each would normally have earned as wages during
the period from five (5) days after the date of such application for
reinstatement to the date of the offer of employment or placement
upon the preferential list required by paragraph (c) above, less his
net earnings during that period, deducting, however, from the amount
otherwise due to each of the said employees, monies received by said
employee during said 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 Fed-
206 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
eral, State, county, municipal, or other government or governments
which supplied the funds for said work-relief projects;
(e) Post immediately in conspicuous places at its plant at St.
Louis, Missouri, notices stating that Brashear Freight Lines, Inc.,
will cease and desist in the manner aforesaid, and maintain such
notices for a period of sixty (60) consecutive days from the date of
posting;
(f) Notify the Regional Director for the Fourteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply therewith.
AND IT Is FURTHER ORDERED that the complaint, in so far as it
alleges that the respondent has discriminated in regard to the hire
and tenure of employment of Brace Bell within the meaning of
Section 8 (3) of the Act and that the respondent has refused to
bargain collectively within the meaning of Section 8 (5) of the
Act, be, and it hereby is, dismissed.
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Order.