Charman Service Corp.

National Labor Relations Board - Board Decisions

Jun 6, 1952

99 N.L.R.B. 534 (N.L.R.B. 1952)

534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in, or activities on behalf of , INTER-
NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLE-
MENT WORKERS' OF AMERICA, CIO , and its AMALGAMATED LOCAL 842 , or in any
other labor organization, by discriminating in regard to hire or tenure of
employment or any term or condition of employment.
WE WILL NOT interfere with, restrain, or coerce our employees in the
exercise of their right to self-organization, to form labor organizations,.to
join or assist any labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3) of the
Act. "
WE WILL offer to the following named employees immediate and full rein-
statement to their former or substantially equivalent positions without preju-
dice to any seniority or other rights and privileges enjoyed and make them
whole for any loss of pay suffered as a result of the discrimination against
them :
Harold N. Aycoth
Howard I. Bitner
Leo Bober ( Berkeley
R. C. Douglas
Charles W. Fraley
Marvin Gay
Laurel J. Griffith
Ray Holland
Jesse A. Ingram
Springs)
John T. Ingram
Chester C. Jones
James E. Kline
Thomas B. Kunkleman
George A. Kyne
Oliver W. Mowen
David A. Myers
Joseph P. Rogers
Samuel J. Rowland
Dated --------------------
VIOTOR PRODUCTS CORPORATION,
Employer.
By ----------------------------------
(Representative ) (Title)
This notice mint remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.
CHARMAN SERVICE CORPORATION and FRANCIS X. FLORIO . Case No.
2-CA-941. June 6, 1952
Decision and Order
On December 6, 1951 Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report.
99 NLRB No. 95.
CHARMAN SERVICE CORPORATION 535
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Charman Service Corpora-
tion, New York, New Yerk, and its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its
employees by discriminatorily discharging employees or denying
them reinstatement or reemployment, or by discriminating in any
other manner in regard to their hire or tenure of employment or any
term or condition of employment.
(h) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, to engage in concerted activi-
ties for the purposes of collective bargaining or other mutual. aid or
protection, or to refrain from any and all such activities, except to
the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Francis X. Florio immediate and full reinstatement to
his former or a substantially equivalent position without prejudice to
his seniority or other rights and privileges and make him whole in
the manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(b) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other records
necessary to analyze the amount of back pay due.
(c) Post at its garages and/or dispatching offices where employees
are normally dispatched for work copies of the notice attached to the
' 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
[Members Houston, Murdock, and Peterson].
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report marked "Appendix A." 2 Copies of such notice,
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by the Respondent's authorized representative,
be posted by the Respondent immediately upon receipt thereof, in con-
spicuous places, including all places where notices to employees are
customarily posted, and maintained by it for sixty (60) consecutive
days thereafter. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director in writing within ten (10) days
from the date of this Order, what steps,the Respondent has taken to
comply herewith.
Intermediate Report
STATEMENT OF THE CASE
A charge having been duly filed by Francis X. Florio, a complaint and notice
of hearing thereon having been issued and served by the General Counsel, and
an answer having been filed by the Respondent, Charman Service Corporation,
a hearing upon due notice was held at New York City before Arthur Leff, the
undersigned duly designated Trial Examiner, on September 17, 19, 20, and 21,
1951. The complaint alleged in substance, and the answer denied, that the
Respondent engaged in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 61 Stat. 136, herein called the Act, by discharging Francis
X. Florio on or about April 11, 1949, and refusing thereafter to reinstate or re-
employ him because of his union membership and his participation in a strike.
The Respondent was represented at the hearing by counsel and was afforded full
opportunity to be heard, to examine and cross-examine witnesses, to introduce
evidence on the issues, to argue orally upon the record, and to file briefs and pro-
posed findings and conclusions. At the conclusion of the hearing, decision was
reserved on a motion of the Respondent to dismiss the complaint for insufficiency
of proof. ' That motion is now disposed of in accordance with the findings of fact
and conclusions of law made below.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a New York corporation with its principal office and place
of business in New York City where it is engaged in the operation of a fleet of
10 taxicabs and employs approximately 30 employees. Annually, the Respondent
purchases or leases taxicabs, tires, and other materials, having a value in excess
of $15,000, which are shipped to the Respondent's New York garage from points
outside the State of New York. In addition, the Respondent annually purchases
or leases, from suppliers located in the State of New York, tires, taxicab parts,
2 This notice, however , shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "The Recommendations of a Trial Examiner " and substitut-
ing in lieu thereof the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
CHARMAN SERVICE CORPORATION 537
gasoline , oil, and other materials , valued in excess of $50,000, all of which are
shipped to-the Respondent's New York State suppliers from points outside the
State of New York. The Respondent's annual revenue from the transportation
of passengers is in excess of $130;000. Of this revenue, more than 6 percent
is derived from the transportation of passengers to and from New York terminals
of interstate railroads, ferries, bus lines, airlines, steamship lines, and other
common carriers engaged in the transportation of passengers between such
terminals located within the State of New York and States of the United States
other than the State of New York and foreign countries. On these facts I find
that the Respondent's operations are an essential link in the service performed
by the afore-mentioned instrumentalities of commerce. See Skyview Transporta-
tion Co, 92 NLRB 1664. It is not disputed by the Respondent, and it is found,
that the Respondent is engaged in commerce within the meaning of the Act,
and that it will effectuate the policies of the Act to assert jurisdiction in this
case.
II. THE LABOR ORGANIZATION INVOLVED
Taxi Workers Organizing Committee, United Mine Workers of America, other-
wise known as United Construction Workers affiliated with the United Mine
Workers of America, Local 35, herein referred to as the Union, is a labor organi-
zation within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issue
There is a single issue in this case. Francis X. Florio, an employee of the
Respondent, participated along with others in a city-wide strike against taxicab
operators, extending from April 1 to April 8, 1949. When he reported for work
after the strike, on April 11, 1949, the Respondent notified him that he had been
discharged and refused him reinstatement or reemployment. The complaint
alleges, and the Respondent denies, that Florio was illegally discriminated against
because of his union membership and strike activities.
B. Florio 's background of union activity and the condition on which he was
employed
Before entering the Respondent's employ Florio had long been identified
with union organizational work among taxicab drivers in New York City.
In 1937 he was one of the volunteer organizers for the CIO Taxi Workers
Organizing Committee. Later that year, after the CIO had assigned that labor
organization to the jurisdiction of Local 100 of the Transport Workers Union,
Florio was elected to the Local's executive board. During the next 2 years
he served Local 100 as a full-time paid organizer and business representative
with regard to matters affecting employees of the Parmelee System. About
the beginning of 1940, Florio quit Local 100, operated his own cab for some 6
months, and then left the industry entirely for a period of 2 years, returning
as an employee in 1942. In 1943 he was again elected to the executive board
of the Taxi Division of Local 100. In 1945, after the Taxi Division was granted
a separate charter by the Transport Workers Union and became known as
Local 150, Florio was elected president of Local 150. Thereafter he continued in
that office until 1947, when, following the merger of Local 150 with a number
of independent labor organizations, a new local-called Local 300-was chartered
by the Transport Workers Union. Florio was elected first vice president of Local
300. After an existence of only about 8 months, the charter of Local 300 was
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withdrawn. At the same time Local 150 was reconstituted with its old set
of officers, including Florio as president. Despite its formal, revival, however,
Local 150 never again functioned as an active labor organization.
Florio's history as an organizer and union official in the taxicab field was
admittedly known to the Respondent. Until her temporary retirement from the
taxicab industry in July 1942, Frances C. Lang, the Respondent's president and
principal stockholder, had been one of the leading industry figures. Herself
then the owner and operator of a large fleet of some 140 taxicabs, Mrs. Lang
for some 5 years before her retirement had served as chairman of the board
of the Radio Fleet Owners Association. The Association represented operators
of approximately 1,900 taxicabs in matters of common interest to them, including
those pertaining to labor relations. By virtue of Mrs. Lang's position in the
industry, her attention had been drawn to Florio's organizational activities.
Florio was hired by the Respondent in March 1948, some months after Local
150 had become a passive organization. He was interviewed for the job by
Murray A. Lang, husband of Frances, and the Respondent's general manager.
Lang informed Florio at the time that he would let Florio have the job, even
though he knew Florio's history as a union organizer, but only on the condition
that Florio would refrain from further union activities while in the Respondent's
employ. Florio, who was then badly in need of work, offered no resistence to
this condition'
C. The capacity in which Florio was employed
Like others in the taxicab industry, the Respondent has 3 classifications of
employees. There is, first, the steady driver, who normally works 5 or 6 days
a week and who regularly is assigned to the same taxicab unless it is unavailable
because of repairs. There is, then, the steady extra, who works either on a
part-time or on a full-time basis, filling in for the steady drivers on their stag-
gered days off. The steady extra is distinguished from the steady driver in
that he is not regularly assigned to the same cab, but, like the steady driver,
is obliged to report on given days and in return is given an advance commitment
for work on such days. And, finally, there is the extra extra, also known as
the floating extra. He is a casual employee who is given work only when the
others are unavailable, who reports at his pleasure and takes his chances, neither
giving nor receiving an advance work commitment. All drivers, however classi-
fied, are compensated in the same manner and at the same rate, on a commis-
sion basis under which they retain each day 421/2 percent of their gross receipts
less an appropriate adjustment for withholding taxes and the like. A 10-cab
operation with 2 shifts, such as the Respondent's, normally will employ 20
steady drivers, 1 for each car on each shift, and about 7 or 8 steady extras.
Florio was employed on the Respondent's night shift as a steady driver with
a regular car assignment.
D. Florio's union activities after his employment by the Respondent; the strike
For some months after his employment by the Respondent, Florio did not
himself participate in active organizational work in the taxicab field . He con-
tinued, however, to maintain an interest in organizational developments, occa.-
1 The findings made in this paragraph are based upon Florio's credited testimony.
Lang's version was different . According to him, it was Florio who volunteered informa-
tion concerning his past union activities , and Florio who first propo'ed that the Respond-
ent hire him on the condition mentioned. From, my observation of Florio while testify-
ing and on the basis of his history, I find it difficult to believe that he would have been
the one initially to propose a hiring arrangement in the nature of a "yellow-dog contract."
CHARMAN SERVICE CORPORATION 539
sionally meeting with individuals and groups who shared his interest. In August
1948, after a conference with the leaders of the Taxi Workers Organizing Com-
mittee of the United Mine Workers (herein called the Union), which in the
meantime had made its appearance on the scene, Florio joined that organization,
bringing with him what remained of the membership of Local 150 of the Transport
Workers Union. At that time Florio was placed on the Union's advisory com-
mittee, a capacity in which he continued to serve until the end of the strike.
Thereafter Florio participated actively in organizational work, not confined to
employees of his own employer, but extending generally to the city-wide
campaign.
Florio's interest in the Union was no secret to the Respondent. On one occa-
sion in October 1948 Mrs. Lang accused Florio of attending union meetings
during times when he should have been working, an accusation which, Florio
says, had no basis in fact, although he did not bother to deny it at the time. The
Respondent, however, continued Florio in its employ, notwithstanding the condi-
tion upon which he had been hired.
By March 1949, the Union's city-wide organizational campaign had reached
a stage where the Union was ready for a test of strength. On March 14, 1949,
it wrote New York City taxicab operators, including the Respondent, that it had
been designated the city-wide collective bargaining representative for taxi
drivers, and that it was prepared to commence contract negotiations at a stated
,time and place. The Respondent did not answer the Union's bargaining demand.
Instead, it forwarded to each of its employees a form letter that had been drafted
by an employers' association. The letter spoke disparagingly of the "Lewis
Union" as one that had no place in and could only bring hardship upon the
taxicab industry; stated that the Union had refused to establish its representa-
tion claim through a Labor Board election ; and expressed a determination to
continue operations "and not sit down with the Union because of a strike, no
matter how long it takes." Unable to obtain recognition from the taxicab oper-
ators, the Union called a general strike among all taxicab drivers in New York
City.
The strike began on April 1 and was officially terminated at 4 p. in. on April 8
ending in a total defeat for the Union. During the first several days of the
strike, the Respondent's operations were completely shut down. Although the
Respondent succeeded in getting some of its equipment on the streets in the
latter half of the strike, it was not until April 8 that the full operation of its
fleet on both shifts was restored.
More than an active participant, Florio assumed a leadership role in the strike.
When the strike began, he helped set up a picket line about the garage where
the Respondent's cabs were housed. His activities, otherwise, extended beyond
the Respondent's operations. As a general representative of the Union, he
traveled throughout the city checking up on the effectiveness of the strike. In
addition , as one of the strike leaders, he participated in meetings called by the
mayor of the City of New York in an effort to effect a strike settlement. The
Respondent's knowledge of Florio's position as more than a rank-and-file striker
is reflected by the fact that on his only visit to the Respondent's garage after
the picket line was set up, Florio was greeted by Nathan Hemley, the Respondent's
dispatcher and a supervisory employee, with the words, "Hello, Union delegate." 2
D. The teatim.ony of Henry Wein
In March and April 1949, Henry Wein was employed as a driver by one of the
taxicab companies sharing the garage used by the Respondent. It was a practice
2 According to Florio 's testimony , which is credited although denied by Hemley.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Wein, along with other employees, to prepare his records relating to his day's
receipts in a garage office which was also used by the Respondent as a dispatch-
ing booth. Wein had joined the strike when it began, but had returned to
work a few days before its termination.
Wein testified that on one occasion toward the end of the strike, while he
was in the office preparing his records, there were also present Lang, Mrs. Lang,
and Hemley, who were engaging in a discussion concerning who should and should
not be given cars. In the course of the discussion Wein overheard either Lang
of Hemley ask, "How about Florio?", and Mrs. Lang reply, "Oh, no, no, get rid
of him. He is a good union man."
Wein's testimony was specifically denied by Lang and Mrs. Lang, and gen-
erally by Hemley who testified that he had never received any instructions from
Mrs. Lang with regard to Florio. On direct examination Mrs. Lang testified
that during the strike she had not been at the garage more than once ; that she
never had any conversation with her husband and Hemley in the dispatch booth ;
and that whatever business she had at the garage was invariably carried on at
her private office elsewhere in the plant. However on cross-examination she
contradicted herself and agreed that during the strike she might have been in the
dispatch office speaking to Hemley and Lang. She also then admitted that she
knew Wein, having seen him at the garage. And when asked by the General
Counsel under what circumstances she had seen him, she replied, "I saw Mr.
Wein in the garage that day you are speaking of." Lang, when examined on
this point, admitted that on the afternoon the strike was settled he, Hemley,
and Mrs. Lang had had a conversation at the place described by Wein.
In resolving this conflict, I have taken into account that we have here the
word of one against three. But credibility conflicts are not properly to be
resolved merely on a quantitative basis ; for the qualitative factor is at least
as important, and often more so. In this case, I was impressed by Wein as a
witness. He was not himself interested in the outcome of the case, and although
he knew Florio casually, does not appear ever to have been too close to him. His
testimony was given in a forthright manner and remained unshaken under
vigorous cross-examination by able counsel for the Respondent. On the other
hand, both Lang and Mrs Lang were interested witnesses. In certain respect
their testimony was mutually contradictory, and that of Mrs. Lang was at
times self-contradictory, leaving the impression that they had something to
conceal. Hemley, it is true, was also a disinterested witness at the time of
the bearing. But much of his over-all testimony was evasive, self-contradictory,
inconsistent with clearly established record facts and documentary evidence,
and marked by evident hostility toward Florio. As a witness, he did not invite
credence. On all the evidence I credit Wein and find that Mrs. Lang on the
occasion in question made the remarks concerning Florio, substantially as
attributed to her by Wein.
F. The discharge of Florio and the Respondent's failure and refusal to reinstate
him
Florio's strike activities continued through Thursday, April 7, the day before
the strike ended. By then, a substantial number of taxicabs were already rolling
on the city streets, and it was becoming increasingly more apparent that the
strike was crumbling. Nevertheless, at union meetings held that night, attended
by Florio, it was voted to continue the strike.
Upon arriving home late Thursday night; Florio found his wife had left the
city to visit her elderly mother who was then critically ill at her home in
Rosendale, New York, about 80 or 90 miles distant from New York City. The
CHARMAN SERVICE CORPORATION 541
next day at about 1 p. in., Florio left New York City by bus to join his wife
at her mother's home and, incidentally, also to visit certain nearby property
which he owned. It had been Florio's custom in the past to absent himself
from work on occasional week ends to visit his country property. The Re-
spondent had never objected to this, and during the preceding summer had
consented to an arrangement under which Florio could spend approximately
every other week end at his country place.
When Florio left the city, no official determination had yet been made to
terminate the strike-at least Florio knew of none. The strike was actually
terminated 3 hours later. Florio first learned the strike had been called off
on Saturday night, April 9, when his attention was drawn to a newspaper
story reporting that fact. Florio did nothing that night, but the next morning,
Sunday, April 10, at about noon, he wired Lang that he would report Monday,
April 11, for work on the night shift.
Several hours before the start of the night shift on April 11, Florio received
a telephone call at his New York City home from Hemley, the Respondent's
dispatcher. Hemley told him not to report for work, explaining that his regular
car had been assigned to another driver and he was no longer employed. Ques-
tioning Hemley's authority to discharge him, Florio said he would come down
to the garage anyway to see Lang who had hired him. Upon his arrival at the
garage before the start of the night shift, Florio spoke to Lang who asserted
he had no control over the situation as he had been superseded by Hemley in
his authority to hire and fire drivers. Florio again spoke to Hemley, asking
why he had been fired. Hemley said he could not keep a cab open for 11 days
waiting for Florio to return to work. Florio took issue with that as the real
reason, pointing out that in the past the Respondent had never objected to his
absences from work to visit his country place. Hemley then said he had had
Florio slated for discharge anyway because of his work, giving a number of
reasons, none of which, however, are now relied upon by the Respondent'
Addressing himself to Lang, Florio charged he was really being discharged
because he had violated the condition on which he had been hired, not to
engage in union activities. Lang remained silent, but Hemley replied that
Florio was actually being fired because there was no job open for him. Florio
offered to take any car out, and even to work on a part-time basis, but Hemley
simply reiterated the Respondent had no job for him.
G. The Respondent' s asserted reasons for discharging Florio
At the hearing Mrs. Lang, the Respondent's president, and Lang, its general
manager, testified they had nothing to do with Florio's discharge ; that the
decision to effect it was entirely Hemley's. All he knew about it, testified Lang,
was what Hemley told him, and what Hemley told him was that he did not
reinstate Florio because Florio had been replaced before his return. Hemley's
testimony was vacillating and not always consistent. He testified initially that
Florio had been let go because he had been replaced on his regular car assign-
ment by another steady driver, Bienerman. Later in his examination he added
additional reasons, asserting among others, that Florio had not shown good
results as a driver; that Florio had not properly respected him as a boss; and
that Florio by his failure to call in during and immediately after the strike had
s At the hearing, Hemley denied stating to Florio that he was slated to be fired, and
asserted that Florio would have been reinstated had he returned to work on Friday or
Saturday . As noted, Hemley was an unreliable witness, and to the extent his testimony
conflicts with Florio 's, that of Florio's is credited.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disclosed an intention to quit his job, leading Hemley to "beat him to the punch`
by firing him first. These additional asserted reasons, however, were discarded
by Hemley himself before the close of his testimony. Pinned down, he reverted
to his original position, that Florio was not taken back because he had been
replaced when he failed to appear for work within a day or two after the strike.
"That," he testified, "was the definite reason. That was the only reason I had."
It was "definitely" fair to assume, he added, that Florio would have been re-
turned to his job had he called in before he was replaced by Bienerman.
H. Analysis of the Respondent's defense; conclusions
As Florio was an economic striker, the Respondent was, of course, entitled
to replace him while he was out on strike, or, for that matter, at any time before
he applied for reinstatement. And if replaced by a bona fide permanent replace-
ment, Florio would have no right to his job on his return, so that a refusal of
the Respondent to discharge the replacement to make room for him would not
have constituted an unfair labor practice. The question here, however, is not
one of law, but one of fact. The General Counsel argues that Florio was not
replaced in fact, and in that respect I think the record fully supports his position.
The Respondent's dispatch sheets show that Bienerman did become a steady
driver on the cab which before the strike had been regularly assigned to Florio.
But they also show that Bienerman did not enter on his duties as such until the
night shift of April 11, 1949-after Florio was notified of his discharge. On
occasions prior to the strike Bienerman had worked for the Respondent as an
extra ; but after the strike began he did not work for the Respondent at all until
April 11. Although not disputing that Bienerman began work as a steady driver
after Florio's request for reinstatement, the Respondent contended that before
that time it had already committed itself to assign Florio's old car to Bienerman.
To support that contention, the Respondent relied entirely upon the testimony
of Hemley. Hemley testified that on April 8 or 9-his testimony shifted as
to the precise date-Bienerman called on him for work and, having no car to
assign at the time, he told Bienerman to report on Monday, April 11, promising
to assign him then to a regular car as a steady driver if the steady driver for-
merly assigned to the car should fail to report. According to Hemley, at the
time he made this promise he believed that Florio would not return to work,
leaving his car open for assignment to a steady driver. Asked specifically
whether his promise to Bienerman of a regular car assignment was made "con-
ditional upon Florio not showing up," Hemley answered, "That is right."
Accepting Hemley's testimony at face value, it is clear that Bienerman's em-
ployment as a permanent replacement followed rather than preceded Florio's
application for reinstatement. As has been shown, Bienerman was not actu-
ally assigned to Florio's former car until the start of the night shift on April 11.
Before that assignment was made, Florio had (a) wired the Respondent (the
day before) that he was reporting for work on that shift; (b) been advised by
Hemley (earlier that afternoon) that he had been discharged ; and (c) reported
at the Respondent's garage ready for work. There is no validity to the Re-
spondent's argument that the earlier "commitment" to Bienerman had the oper-
ative- force of a replacement. For the "commitment" made was clearly a
conditional one, subject to defeasance if Florio reported for work-as in fact
he did-on or before April 11.
The record not only refutes the Respondent's contention that Florio before his
discharge had already been permanently replaced as a steady driver on his par-,
ticular cab assignment, it also establishes that on April 11, and for some time,
thereafter, the Respondent had openings for steady drivers on other cabs in its
CHARMAN SERVICE CORPORATION 543
fleet. Thus, Hemley at one point of his cross-examination conceded , and the
Respondent's dispatch sheets show, that for some time after the strike the Re-
spondent had no steady drivers on its day shift for three of its cabs and, until
steady drivers were eventually obtained-after April 11-followed the practice of
assigning these cabs to the first extras that came along. On the night shift-
even accepting Hemley's questionable identification of those considered to be
steady drivers-it appears that only two or perhaps three steady drivers reported
for work on Friday, April 8, six on Saturday, April 9, three on Sunday, April 10,
and six (including Bienerman) on April 11.4 Under cross-examination, Hemley
admitted that on April 11, and for a substantial period thereafter, he had four
cabs open on the night shift, to which no steady drivers were assigned. It
appears, in part from Hemley's testimony and in part from the dispatch sheets,
that until these open cabs were eventually filled with steady drivers, the
Respondent manned them not only with steady extras but also with floating extras.
Although defending principally upon the ground that Florio had been replaced
and his job was no longer open, the Respondent also argues that Florio's failure
to report to work for 3 days after the end of the strike provided a legitimate basis
for his discharge.
Whether Florio's 3-day delay in reporting-taking into consideration that he
first learned of the end of the strike on the evening of April 9 and could not
possibly have reported until Sunday, April 10, at the earliest-might under any
circumstances be said to be so unreasonable, as to warrant the Respondent in
depriving him of the reinstatement rights normally safeguarded to a returning
unreplaced economic striker, is a question that is unnecessary for me here to
decide. For I am convinced on this record that the Respondent did not in fact
discharge him for that reason. My conviction in that regard is derived from
the following :
To begin with, the controlling reason given Florio at the time of his discharge
was not that he had been absent without proper excuse, but that he had been
replaced during his absence leaving no job open for him. That reason , demon-
strated to be false, was also the one Hemley eventually stated at the hearing was
"the definite reason . . . the only reason [he] had." And while it is true that
Hemley adverted in his conversation with Florio to Florio's 11 days' absence, as
he did also in substance at one point of his testimony, it would appear from Hem-
ley's own phrasing that it was not alone the 3 days' post-strike absence that in-
fluenced his judgment, but that absence superimposed upon Florio's 8 days'
absence during the strike-an absence the law protects. Moreover, the record
reveals the Respondent normally pursued no rigid policy with regard to absentee-
ism among steady drivers. Reference to the Respondent's dispatch records shows
many instances of absences by steady drivers for periods longer than Florio's.
Mrs. Lang testified that normally she would not hold it against a driver if he
failed to report to work because of illness in his family. And Hemley testified
that, while he expected drivers to get in touch with him if they were unable to
report for work, he would not regard a failure to do so as a dischargeable offense
if there were extenuating circumstances. Hemley testified further that it was
not uncommon for steady drivers to fail to report in on Sunday-indeed the
record shows that on Sunday, April 10, a number of them did not-and all that
he required in these circumstances was that the driver notify him in advance.
Bearing in mind that the Respondent in the past had consented to week-end
absences of Florio while visiting his country property ; that his absence on this
occasion was attributable largely to illness in his family ; that there were extenu-
' One of the extras to whom Hemley assigned a car on April 11 , the day Florio reported
for work, was a driver named Cohen . Hemley testified that he considered Cohen an unre-,
liable driver whom he would avoid sending out if he had some one else available.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ating circumstances explaining Florio's failure to report for work or to com-
municate with the Respondent prior to the start of the Saturday night shift ; and
that Florio did give the Respondent advance notice that he would not report on
Sunday-and considering also that the Respondent was then faced with a short-
age of steady drivers-I do not believe the Respondent would have discharged
Florio simply on the basis of his 3 days' absence, were it not for Florio's par-
ticipation in the strike immediately preceding that absence. My conclusion in
that respect is both confirmed and fortified by Wien's credited testimony, adverted
to above, reflecting that the Respondent had determined to rid himself of Florio
because of his union activities before it was even in a position to know he would
fail to report for work immediately after the strike.
Appraised in its relationship to the other events narrated above, and in the
light of the Respondent's failure to present a plausible explanation on any legiti-
mate basis, the Respondent's discharge of Florio and its failure to reinstate or
reemploy after the strike, though he had not been replaced, is rationally open to
but a single interpretation-that it was motivated by the Respondent's resent-
ment against Florio and effected as a reprisal measure against him because of his
prominent role in the recently ended strike which had caused the Respondent
financial loss. Upon the record as a whole, I am convinced, and I find, that the
Respondent discharged Florio on April 11, 1949, and on and after that date
denied him reinstatement or reemployment, because of his union and strike
activities. By such conduct, I further find, the Respondent discriminated in
respect to Florio's hire and tenure of employment, thereby discouraging member-
ship in the Union and in labor organization generally, and interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, I shall recommend that it cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
I shall recommend that the Respondent offer to Francis X. Florio immediate
and full reinstatement to his former or a substantially equivalent position ° with-
out prejudice to his seniority or other rights and privileges and make him whole
for any loss of pay suffered by him as a result of the discrimination, by payment
to him of a sum of money equal to the amount he would have earned from April
11, 1949, the date of his discriminatory discharge, to the date of the offer of
reinstatement less his net earnings 9 to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289,
291-294. Earnings in one particular quarter shall have no effect upon the back-
pay liability for any other such period. As it appears that Florio while in the
5 The Chase National Bank of the City of New York, Han Juan, Puerto Rico Branch, 65
NLRB 827.
6
Crossett Lumber Company , 8 NLRB 440 , 447-498 , Republic Steel Corporation v. N. L.
R. B., 311 U. S. 7.
CHARMAN SERVICE CORPORATION 545
employ of the Respondent received, in the course of his employment, tips from
taxicab passengers as a regular part of his earnings, it is recommended that
such tips be computed in determining the amount he would have earned. It will
also be recommended that the Respondent make available to the Board, upon
request, payroll and other records to facilitate the checking of back pay due.
As the unfair labor practice committed by the respondent was of a character
striking at the roots of employee rights safeguarded by the Act and discloses a
propensity on the part of the Respondent to continue, although not necessarily
by the same means, to defeat self-organization of its employees, it will also be
recommended that the Respondent cease and desist from infringing in any
manner upon the employee rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following :
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of employment of Francis
Florio, thereby discouraging membership in labor organizations and thereby also
interfering with, coercing, and restraining employees in the exercise of the rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) and 8 (a) (1)
of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in any labor organization by discrimi-
natorily discharging employees or denying them reinstatement or reemploy-
ment, or by discriminating in any other manner in regard to their hire or
tenure of employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist any labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities, except to
the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
WE WILL OFFER Francis X. Florio immediate and full reinstatement to his
former or substantially similar position without prejudice to his seniority
and other rights and privileges and make him whole for any loss of pay
suffered as a result of the discrimination against him.
All our employees are free 'to become, remain, or refrain from becoming or
remaining members of any labor organization, except as that right may be
affected by an agreement requiring membership in a labor organization as a
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition of employment , as authorized in Section 8 (a) (3) of the Act. We
will not discriminate in regard to the hire or tenure of employment or any
term or condition of employment against any employee because of membership
in or activity on behalf of any labor organization.
CHARMAN SERVICE COBPORATION,
Employer.
Dated ------------------ By ------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof and must
not be altered, defaced, or covered by any other material.
SUNBEAM CORPORATION and, INTERNATIONAL UNION OF ELECTRICAL,
RADIO AND MACHINE WORKERS, CIO
SUNBEAM CORPORATION and UNITED ELECTRICAL, RADIO AND MACHINE
WORKERS OF AMERICA. Cases Nos. 13-CA-637 and 13-CA-653.
June 6, 1950
Decision and Order
On April 27, 1951, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recommended dismissal of
these allegations. Thereafter, the Respondent and the General
Counsel filed exceptions to the Intermediate Report and briefs.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations, only insofar as they are consistent
with our findings, conclusions, and order hereinafter set forth.
1. The Trial Examiner found that the Respondent violated Section
8 (a) (1) and (5) of the Act by failing and refusing to bargain with
the UE, which had been certified by the Board as the exclusive collec-
tive bargaining representative of its employees in an appropriate unit,
and by entering into a "members only" collective bargaining agreement
with the TAM on August 21, 1950. In view of the Board's recent Sup-
plemental Decision and Order' setting aside our certification of the
1 Sunbeam Corporation, 98 NLRB 525.
99 NLRB No. 89