Hastings, Chief Judge, Fairchild, and Cummings, Circuit Judges.
This case is here on the National Labor Relations Board's petition under Section 10(e) of the National Labor Relations Act (29 U.S.C. § 160(e)) to enforce an order against respondent. See 154 NLRB No. 99. Earlier this year, we considered a related case against this same respondent. That proceeding is reported in 359 F.2d 829 (7th Cir. 1966) and 150 NLRB 1036 and will be termed Stafford I herein.
Respondent Stafford Trucking, Inc. ("Stafford") is a Wisconsin corporation with its principal office in Elm Grove, Wisconsin, a suburb of Milwaukee. It is engaged in the business of local and interstate hauling by truck, with its dispatch office and garage located in Portage, Wisconsin. The Board concluded that Stafford's January 30, 1964, discharges of its employee-drivers Daniel Immel and Donald Becker were discriminatory discharges forbidden by Section 8(a)(3) of the Act (29 U.S.C. § 158(a) (3)). The Board also concluded that Stafford refused to bargain collectively with the Union*fn1 by unilaterally instituting a contributory insurance plan in contravention of Section 8(a)(5). These two violations led the Board to conclude that Stafford had engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act (29 U.S.C. § 158(a)(1)).
In June 1963, Immel led a unionization effort among Stafford's 12 truck drivers, resulting in a meeting between the employees and representatives of the Union on June 22, 1963. The night before the meeting, Jack Stafford, owner and president of respondent, asked Immel whether he planned to attend the meeting. He replied in the affirmative. Mr. Stafford then asked if Immel could live on only 40 hours a week. On the same night, Mr. Stafford threatened several of his employees with discharges for violating Company rules if they should join the Union.
After the June 22, 1963, meeting of the employees and Union representatives on August 19th, the Board's Regional Director issued a Direction of Election, making all employees on the payroll for the period prior to June 19th eligible to vote. The election was held on September 26th, but the outcome was in doubt because Stafford challenged the ballots of drivers Immel, Becker, Lowitz and Toivonen (see 150 NLRB at p. 1037, note 3). Immel had been discharged on August 19th, Becker on July 23rd, Lowitz on July 7th, and Toivonen had allegedly been refused re-employment on August 12th.
In October 1963, Immel and Becker gave testimony against respondent in Stafford I. In that proceeding, the Board found that Immel and Lowitz had been discriminatorily discharged and that Toivonen had been discriminatorily refused re-employment. However, the Board concluded that Stafford had discharged Becker for failing to remove a binder chain that had fallen from the conveyor on the rear of his truck into a sand bin belonging to a customer of Stafford, and that Becker's discharge was not for his Union activities. Becker was rehired on August 23, 1963. Immel was rehired in November 1963. In Stafford I, this Court held there was substantial evidence to support the Board's findings that Immel and Lowitz were unlawfully discharged, but that there was no substantial evidence to support the Board's holding that the failure to reinstate Toivonen was unlawful. 359 F.2d 829.
On January 8, 1964, the Board ruled that the four challenged ballots should be counted and therefore certified the Union as the exclusive bargaining representative of Stafford's employees. Three weeks thereafter, Immel and Becker were discharged the second time. Jack Stafford's stated reason for firing them was their driving truck 15 at 55 miles per hour, in contravention of respondent's rule that its trucks should not be driven in excess of 50 miles per hour.
The refusal to bargain issue involves an insurance policy that Stafford put into effect on March 10, 1964, under which respondent would pay two-thirds of the cost and the drivers the other third through payroll deductions. Stafford did not consult the Union about this plan even though bargaining sessions were then taking place. A similar plan had been announced in May 1963 and posted in June 1963 but failed to carry because too few drivers signed up.
In the present case, the Board found that Stafford's discharge of Immel and Becker for speeding was a pretext, and that they were actually discharged for their Union activities. The Board also found that Stafford's unilateral dealing with its employees about an insurance plan illegally bypassed the Union. Accordingly, the Board concluded that Stafford had violated Sections 8(a)(1), 8(a)(3) and 8(a)(5) of the Act. A typical cease and desist order was entered, and Stafford was also directed to reinstate Immel and Becker with back pay and to bargain in good faith with the Union with respect to insurance and other conditions of employment and to post a notice embodying the terms of the Board's order.
Discharges of Drivers Immel and Becker
As to the discharges of employees Immel and Becker, Stafford asserts that Section 10(b) of the Act prevents the consideration of any evidence more than six months prior to the July 28, 1964, charge filed by the Union with the Board. In this case, that would prevent the consideration of evidence before January 28, 1964.
Section 10(b) of the Act provides in pertinent part (29 U.S.C. § 160(b)):
" Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against ...