Consumers Gasoline Stations

National Labor Relations Board - Board Decisions

Mar 8, 1960

126 N.L.R.B. 1041 (N.L.R.B. 1960)

CONSUMERS GASOLINE STATIONS 1041
Upon the basis of the above findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local Union No. 9-656, Oil, Chemical and Atomic Workers International
Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
3. By interfering with , restraining , and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, as above found, the Respondent has
engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8(a)(3) of the Act as alleged in the complaint.
[Recommendations omitted from publication.]
J. M. Lassing , H. A. Thompson , Sr., Marshall 0. Thompson,
Mrs. J. R. Hanson , Mrs. Richard C. Patrick , Sr., and H. A.
Thompson, Jr., d/b/a Consumers Gasoline Stations i and
Teamsters , Chauffeurs, Helpers & Taxicab Drivers Local
Union No. 327, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America. Cases Nos.
10-CA-3973, 10-CA-3974, and 10-CA-3975. March 8, 1960
DECISION AND ORDER
On July 20, 1959, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report with a supporting
'brief.
The Board' has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the modifications set forth below.'
We agree with the Trial Examiner that the Respondents discrimi-
nated against drivers Head, Warren, and Wyatt in violation of
' The caption of this case is hereby corrected to identify all the Respondent partners
by name in conformity with the evidence , which consists of the direct testimony of H. A.
Thompson, Jr.
2 Pursuant to Section 3(b) of the National Labor Relations Act, the Board has dele-
gated its powers herein to a three-member panel [ Chairman Leedom and Members Bean
and Jenkins).
3 The Respondent has requested oral argument This request is hereby denied as the
record, exceptions , and brief adequately present the issues and positions of the parties.
126 NLRB No. 126.
554461-60-vol. 126-6 7
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a) (3) and (1) of the Act and refused to bargain with
their designated representative in violation of Section 8(a) (5) and
(1) of the Act. It is clear from the evidence 4 that the Respondents
accelerated the effective date of the change in their operations because
of the drivers' union membership and activities and to avoid recog-
nition of, and bargaining with, the Union,' rather than because of
economic considerations.'
The Trial Examiner also found, and the record amply demon-
strates, that the Respondents would have discontinued their trans-
portation operation for economic reasons on April 1, 1959. Accord-
ingly, in order to remedy the unfair labor practices, he recommended,
inter alia, that the Respondents be required to reinstate drivers Wyatt,
Head, and Warren "to the jobs, if any, they would now occupy" absent
the unlawful discrimination against them and make them whole for
any loss of wages they may have suffered as a result thereof. The
Respondents contend that these recommendations are unwarranted
in that the requirement for reinstatement is based solely on the Trial
Examiner's presumption that these employees would have been re-
assigned rather than terminated.? They further contend that any
backpay due these employees should run only for the period from
'The Trial Examiner found that at the January 20 meeting the Respondents ' repre-
sentative informed the Union that "the coming of the Union . . . was the straw that
broke the camel's back." In fact , the union representative did not testify that these
words were literally used but only that the statement was to this effect. Such testi-
mony was uncontradicted Although we note this minor inaccuracy , it does not affect
the Trial Examiner ' s conclusion or our concurrence -therein.
5 Contrary to the Respondents ' contention , their failure to notify the union concern-
ing the contemplated discontinuance of their transportation operation and to confer
with the Union concerning this change and its effect on the drivers was within the
scope of the complaint These are essential elements of the events of January 20, 1959,
and are clearly includable within the allegations of the complaint setting forth the
Union's request for recognition and bargaining and the Respondents ' refusal "on or
about January 20 "
The Union 's failure to request negotiations concerning the tenure of the drivers does
not require a different conclusion . The Union made an adequate request for bargaining
in its letter of January 13, and at the January 20 meeting the Respondents expressly
refused recognition and presented the Union with an accomplished fact. Under these
circumstances , any attempt by the Union after January 20 to bargain with respect to
those drivers would clearly have been futile. Shamrock Dairy, Inc., et al., 119 NLRB
998, 1007.
6 We do not adopt the Trial Examiner's statement that "it is incumbent upon [the
Respondents] to show that the economic program . . . was not for discriminatory
purposes" insofar as it may be interpreted as placing the burden of proof on the Re-
spondents . However, we believe that this was intended as reiteration of the well-
settled rule that where the General Counsel has established a prima facie case of unfair
labor practices, a respondent has the burden of going forward with evidence sufficient
to rebut the General Counsel 's prima facie case. We agree with the Trial Examiner that
the Respondents here have not adduced evidence of economic motivation sufficient to
rebut the General Counsel 's proof that the discontinuance of their transportation oper-
ation and the discharge of the drivers on January 20, 1959, were discriminatorily
motivated.
4 We find without merit the Respondents ' further contention that Wyatt 's alleged state-
ments to Office Manager Hanson while the former was picketing the Respondents' prem-
ises constituted misconduct which precludes his reinstatment with backpay . 'f. Homer
Gregory Co ., Inc., 123 NLRB 1842; Renfro Hosiery Mills, Inc., 122 NLRB 929.
CONSUMERS GASOLINE STATIONS 1043
January 20, 1959, the date of their discharge, to April 1, 1959, the
date on which they would have been terminated for nondiscriminatory
reasons.
We are unable to determine on the record before us whether it was
the Respondents' policy to offer to employees displaced under similar
circumstances reassignment to other positions in the Respondents'
organization. Accordingly, we shall leave to the compliance stage
of this proceeding the determination of whether or not such a policy
existed. We shall direct that, if such practice be found, the Respond-
ents shall offer Wyatt, Head, and Warren reassignment to a position,
if any, to which he would have been assigned thereunder, without
prejudice to any rights or privileges he would have under such policy,
and make each of them whole for the amount of wages he would have
earned from the date of the discrimination against him to the date of
such offer of reassignment. We shall further order that, if no such.
policy be found, the Respondents shall bargain with the Union with
respect to whether the discharged employees may, if they desire, trans-
fer to other positions in the Respondents' organization, and as to the
method, terms, and conditions upon which such transfers, if any, may
be made, and shall make said employees whole for the amount of
wages each would have earned from the date of discrimination to
April 1, 1959, the date on which he would have been terminated for
nondiscriminatory reasons. Since the Respondents would have dis-
continued their transportation operation for economic reasons in any
event, and since the Union does not claim to represent the Respondents'
remaining employees, we shall not issue our usual order otherwise
requiring the Respondents to bargain with the Union as the exclusive
representative of its employees. In all other respects we shall adopt
the remedy recommended by the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, J. M. Lassing,
H. A. Thompson, Sr., Marshall O. Thompson, Mrs. J. R. Hanson,
Mrs. Richard C. Patrick, Sr., and H. A. Thompson, Jr., d/b/a Con-
sumers Gasoline Stations, their agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Teamsters, Chauffeurs, Helpers &
Taxicab Drivers Local Union No. 327, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any
other labor organization of their employees, by discriminating in
regard to their hire or tenure of employment or any term or condition
of employment.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Refusing to bargain collectively with Teamsters, Chauffeurs,
Helpers & 'Taxicab Drivers Local Union No. 327, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, as the exclusive representative of all transport truck drivers
and relief drivers of the Respondents at Nashville, Tennessee, but ex-
cluding all other employees and supervisors as defined in the Act,
as amended, by making unilateral changes in terms and conditions of
employment.
(c) In any like or related manner interfering with, restraining, or
coercing their employees in the exercise of their right to self-
organization,, to form, join, or assist the aforesaid labor organization,
or any other 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 pro-
tection, or to refrain from any and all such activities, except to the
extent that such right 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, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Billy W. Head, Ned L. Warren, and Newall T. Wyatt
immediate reassignment to other positions, if they are entitled thereto
under the Respondents' policy in instances of economic terminations,
without prejudice to any rights and privileges to which each would
have been entitled absent the discrimination against him.
(b) If the said employees are not entitled to immediate reassign-
ment, bargain, upon request, with Teamsters, Chauffeurs, Helpers &
Taxicab Drivers Local Union No. 327, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, with
respect to whether the transport truck drivers and relief drivers for-
merly employed by the Respondents at Nashville, Tennessee, may, if
they desire, transfer to other positions in the Respondents' organiza-
tion, and as to the method, terms, and conditions upon which such
transfers, if any, may be made.
(c) Make Billy W. Head, Ned L. Warren, and Newall T. Wyatt
whole for any losses they may have suffered by reason of the Respond-
ents' discrimination against them, in the manner set forth above in
the Board's Decision.
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and, reports, and
all other records necessary to analyze the right to reinstatement or the
amount of backpay due under the terms of this Order.
CONSUMERS GASOLINE STATIONS 1045
(e) Post at their office at Nashville, Tennessee, copies of the notice
attached hereto marked "Appendix." 8 Copies of such notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by an authorized representative of the Respondents,
be posted by the Respondents immediately upon receipt thereof, and
be maintained by them for a period of 60 consecutive days thereafter
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for the Tenth Region, in writing,
within 10 days from the date of this Decision and Order, what steps
the Respondents have taken to comply herewith.
8In 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."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in Teamsters, Chauffeurs,
Helpers & Taxicab Drivers Local Union No. 327, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, or in any other labor organization, by discriminating
against any employee in regard to his hire or tenure of employ-
ment, or any other term or condition of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their right to
self-organization, to form, join, or assist the aforesaid Union, or
any other labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8(a) (3) of the National
Labor Relations Act, as modified by the Labor-Management Re-,
porting and Disclosure Act of 1959.
WE WILL offer the following employees immediate reassignment
to other positions, if they are entitled thereto under the terms of
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board's Order, without prejudice to any rights and privileges
to which they would be entitled :
Billy W. Head
Ned L. Warren
Newall T. Wyatt
and make them whole for any loss of pay they may have suffered
as a result of the discrimination against them.
WE WILL, if the said employees are not entitled to immediate
reassignment to other positions in our organization, bargain, upon
request, with Teamsters, Chauffeurs, Helpers & Taxicab Drivers
Local Union No. 327, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, with respect
to whether the transport truck drivers and relief drivers formerly
employed by us at Nashville, Tennessee, may, if they desire,
transfer to other positions in our organization, and as to the
method, terms, and conditions upon which such transfers, if any,
may be made.
All our employees are free to become or remain, or refrain from
becoming or remaining, members of any labor organization, except
to the extent that this right may be affected by an agreement in
conformity with Section 8 (a) (3) of the National Labor Relations Act,
as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
J. M. LASSING, H. A. THOMPSON, SR.,
MARSHALL O. THOMPSON, MRS. J. R.
HANSON, MRS. RICHARD C. PATRICK,
SR., AND H. A. THOMPSON, JR., D/B/A
CONSUMERS GASOLINE STATIONS,
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges and amended charges filed by Teamsters , Chauffeurs , Helpers &
Taxicab Drivers Local Union No. 327, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America, herein referred to as the Union,
General Counsel of the National Labor Relations Board issued a complaint dated
March 25, 1959 , against J. M. Lassing , H. A. Thompson , Sr., and the children of
H. A. Thompson , Sr., d/b/a Consumers Gasoline Stations, herein referred to as the
Respondent , alleging violations of Section 8(a)(1), (3 ), and (5 ) of the National
Labor Relations Act, as amended ( 61 Stat. 136), herein called the Act . In its duly
filed answer Respondent, while admitting certain allegations of the complaint, denies
the commission of any unfair labor practices.
CONSUMERS GASOLINE STATIONS 1047
Pursuant to notice, a hearing was held before me at Nashville, Tennessee, on
May 26, 1959. ' All parties were represented at the hearing and were afforded full
opportunity to be heard, to introduce relevant evidence, to present oral argument,
and to file briefs. Counsel waived oral argument at the conclusion of the testimony
and thereafter the General Counsel and counsel for Respondent filed briefs which
I have fully considered. The issues are discussed below.
Upon the entire record and my observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Consumers Gasoline Stations is a Tennessee corporation engaged in the retail sale
of gasoline and allied products, with its principal office in Nashville, and with 22
etail gasoline stations located in the States of Tennessee and Kentucky. During the
year immediately preceding January 31, 1959, the Respondent sold its products at
retail in the approximate amount of $2,000,000. I find the Respondent is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ISSUES
The principal issues raised by the pleadings and developed by the evidence and
briefs of. the parties are the following:
(a) whether the Respondent, by contracting to a common carrier the hauling
portions of its business upon the Union's request for recognition and bargaining,
unlawfully discriminated against the employees thus eliminated, and refused to
bargain with their representative in violation of the Act;
(b) whether the foregoing conduct, if found to be unlawful, warrants an
order of the Board requiring the Respondent to reinstitute the portion of its
business which it has eliminated.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The nature of Respondent's operations
As an incident of Respondent's ownership and operation of its retail gasoline
stations in middle Tennessee and southern Kentucky it maintained until mid-January
1959 a fleet of three gasoline transport truck trailers and tractors, used for the pur-
pose of supplying its stations with gasoline, oil, and accessories. While it is not
entirely clear when hauling in this manner became an integral part of the -business,
the record does shown for the past 6 years the Respondent, for reasons of expedi-
tious adjustment of State tax rebates, had arranged for the transportation of its
gasoline from the Tennessee bulk stations to its Kentucky retail service stations by
common carrier.' This constituted 30 percent of all gasoline transported to Re-
spondent's stations.
Beginning in August 1958, and continuing thereafter throughout the fall and early
winter, Respondent's assistant general manager, H. A. Thompson, Jr., and Office
Manager Robert Hanson, held numerous discussions directed to the economic
feasibility of continuing the transport aspects of its operations, particularly in the
light of mounting costs and what was deemed to be inadequate equipment? Par-
ticularly considered in these discussions were the comparative costs of other modes
of transportation (for example, leasing arrangements and common carrier subcon-
tracts), the limited capacity of its three tank trailers, the future need for major over-
'The arrangement by which this was accomplished involved a leasing of one of Re-
spondent's own trucks to Refiners Transport, a common carrier, with appropriate provi-
sion being made for employee compensation, tax payments, liability, etc. By thus
utilizing the Refiners Transport in its capacity as a common carrier, Respondent was
excused of the requirement of paying Tennessee sales tax on products to be sold at
retail in Kentucky, and of then awaiting a considerable period for the State of Tennessee
to make an automatic reimbursement. It would appear that on occasion as much as
$40,000 had been thus temporarily immobilized before the foregoing arrangement was
instituted.
2It appears from uncontradicted testimony in the record that at the time of the hear-
ing, the Respondent and one other company, Thomi Oil Co., were the only independent
station operators in the area still using their own transportation facilities.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
haul of at least two of its three tractors, the cost of trailer and tractor replacement,
and, among other economic items, the constant concern over accident liability, such
as Respondent's recent involvement in a suit in the amount of $80,000. As a con-
sequence of the foregoing, and after consultation with General Manager H. A.
Thompson, Sr., whose recent illness has placed him in a semiretired status, it was-
decided that upon the occurrence of anything that would increase the cost of haul-
ing, and most certainly at the next licensing time, April 1959, Respondent would
dispose of the transport aspects of its business and would arrange for the hauling of
its product by contract with a common carrier.3
B. The discharges
1. The advent of the Union, and subsequent abandonment of transport operations
Shortly before the beginning of 1959, Respondent's drivers expressed their first
interest in representation by the Union. Driver Newall Wyatt communicated to
Business Representative Ralph Vaughn the wishes of the drivers to be represented
by the Union, and on January 1, 1959, Vaughn met with and "signed up" three of
Respondent's four drivers-Wyatt, Billy W. Head, and Ned Warren. Thereafter, on
January 13, Vaughn sent a letter to the Respondent advising that the Union had
been designated as bargaining representative by a majority of the employees in a
bargaining unit which consisted of Respondent's drivers? In addition he requested
a meeting 3 days hence for the purpose of negotiating a collective-bargaining agree-
ment. Respondent's Office Manager Hanson immediately replied to the Union's
request, acknowledged its receipt, and suggested a later date for a meeting.
The meeting between the Respondent and the Union was held on January 20, as
scheduled. Respondent was represented by its attorneys, Messrs. Lansden and Kirby,
together with Assistant General Manager Thompson, Jr., and Hanson. Accompany-
ing Union Business Representative Vaughn were drivers Head, Warren, and Wyatt.
The Union renewed its request for recognition as bargaining representative of the
employees. The Respondent's representatives refused, stating by way of announce-
ment that they had for some time contemplated going out of the transport phase of
the gas retail business, and the coming of the Union, with the added payroll expense
that it would entail, "was the straw that broke the camel's back."
Earlier, on the afternoon of January 19, the day preceding the scheduled meeting,
Office Manager Hanson had instructed the drivers not to report on the following
morning at their customary starting time but to come to the office at 8:30 a.m_
When all four drivers reported on the following morning, as directed, three of them,
Head, Warren, and Wyatt, were given their separation notices and final checks and
were told that the Respondent had discontinued transporting its gasoline .5 The
drivers thereupon left Respondent's premises and have not since been in its employ.
Thereafter, they engaged in picketing activity for 2 or 3 days in front of Respondent's
office.6
3 The evidence establishing the foregoing economic status of Respondent's operations
is based upon the undenied and credited testimony of Assistant Manager H. A. Thomp-
son, Jr , and Office Manager Hanson.
4 Driver Wyatt testified without contradiction that during this period Office Manager
Hanson had asked him what he knew of the Union Driver Head, however, testified
that no one had questioned him on this matter. In the absence of any allegation in the
complaint concerning this conduct, or any issue raised respecting it before me, Wyatt's,
testimony cannot be considered as evidence of a possible violation of the Act Duro
Fittings Co, 121 NLRB 377, footnote 1 Reliance is placed upon evidence of this con-
duct, therefore, only insofar as it is indicative of the Respondent's knowledge of the
Union's activities, and its apparent concern over it.
5 The fourth driver, Savage, was not affected by Respondent' s action. His service
with Respondent began in 1941, making him considerably senior to the other drivers.
He continues in Respondent's employ as the driver of the one remaining truck, used
for the transportation of tires, batteries, and other accessories between Respondent's
stations, an operation not included in the contracting arrangement
9 At the hearing there was conflicting testimony as to a threat allegedly made by driver
Wyatt, while walking the picket line, to "stomp" Office Manager Hanson, when Hanson
was engaged in taking pictures of the picket line. As there is nothing in the pleadings,
nor anything presented by way of defense, to indicate violence or obstreperous picket
line conduct in this case, I find the subject of Mr Wyatt's allegedly unseemly manners
irrelevant to the issues at hand and accordingly find it unnecessary to resolve the con-
flicting testimony concerning it.
CONSUMERS GASOLINE STATIONS
2. The Respondent 's defense
1049
The reasons given to the employees by Respondent for the elimination of its.
transport business were confirmed by its officers' testimony at the hearing. Thus,
as previously noted, Assistant General Manager Thompson, Jr., stated that the
action taken was in line with a decision made in December 1958 to subcontract the
hauling of gasoline if anything occurred that would increase the hauling costs.
And Office Manager Hanson testified that they "decided that at the first major
expense, either an accident or a major overhaul , or at licensing time, that we would
get rid [of the trailers]." In addition to the foregoing explanation Thompson also
testified to the precise circumstance that brought about the adoption of the new
system. Thus, when asked why the decision was put into effect when it was, "after
receipt of this notice frcm the Teamsters Union," he stated that "on the basis of
the information we had been able to obtain as to wages and anticipated wages,
we felt that the increased cost would not permit our continuing to handle our product
in that manner. In the face of the figures we had, . anticipating increased cost
in handling by union drivers , we just felt that we should make the move at that
time." 7
The Respondent has been operating under this disputed contracting arrangement
ever since.
3. Concluding findings
The findings made above are based upon substantially undisputed testimony. The
Employer, in its concern over mounting operating expenses , determined for sound
economic reason to alter its transport methods before a definite date, or earlier, if
unusual expenses occurred . When the Union appeared upon the scene and made
its request for recognition as the bargaining representative of the Respondent's
drivers, and for a meeting with it to negotiate a collective agreement , the Respondent,
correctly or incorrectly , viewed this request as "the first major expense ," the pre-
determined signal to institute its retrenchment program . Whereupon prompt steps
were taken to execute immediately the previously formulated plan to contract to a
common carrier the haulage of all gasoline to the service stations.
It is Respondent 's contention raised first in the pleadings , and thereafter at the
hearing, and in its brief, that the economic considerations which dictated the con-
version of the transport phase of its business to a contract status were of sufficient
warrant for the displacement of its -three drivers. I do not agree.
Uncontradicted evidence has been adduced to establish that as early as August
1958 , 4 months before the appearance of the Union , discussions had been had
among Respondent 's officials , and plans developed to accomplish a more economical
method of distribution of gasoline to the service stations . From the credited testimony
of these officials it is evident that the proposed changeover hinged directly upon
the incurring of future unusual expenses , or at the very latest, by relicensing
time in April 1959 . These considerations , of themselves, are clearly within the
exclusive competence of the employer to execute as he sees fit, as an expression of
his right to run his business as he chooses .8 But the considerations which Respond-
ent concedes were the motivation for its changeover on January 20 were none
of the economic ones it had previously anticipated. Under such circumstances,
then , it is not enough for Respondent 's purposes to insist that its actions were taken
for valid economic reasons. Over and above that, it is incumbent upon it to show
that the economic program precipitately implemented was not for discriminatory
purposes. Cf. Plankinton Packing Company, a Division of Swift & Co., 120
NLRB 1038, 1041. This I find it has not shown.
Couched though it may have been in the language of economic necessity , the real
cause was Respondent 's unwillingness to recognize and deal with the Union. For
the only logical inference to be drawn from the testimony of Respondent 's officials
is that the affected employees would not have so summarily been dismissed if they
had not joined the Union and had not sought , through the Union, to exercise the
rights incident to union membership.
It is essential at this juncture to evaluate Respondent's position in what appears
at first sight to be a conflict of legal principles . Respondent insists, and not without
substantial judicial support , that economic considerations at variance with and detri-
mental to the interests of its employees , and their union, may nonetheless be justified
4 Respondent had been paying its drivers $ 71.25 for a 55-hour week ; an hourly rate of
$ 1 30. The union scale for the area was $2.53 per hour.
8 Great Falls Employers' Council, Inc., etc., 123 NLRB 974.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and lawful.° But here, it must be remembered, the Union's request was not for a
specific contract or for a stated wage rate, but rather for recognition of its status
as the representative of three of Respondent's four drivers, and for a bargaining
meeting; rights established in these employees' behalf by the express language of
Sections 9(a) and 8(a)(5) of the Act.10 Respondent, then, by so moving to main-
tain or improve its economic stability would seem to have moved too soon. And
in so doing it has confused the statutory rights of its employees and their repre-
sentative with its own statutory prerogatives. Thus while Section 8(d), among
other things, relieves an employer of any necessity to "agree to a proposed proposal
or require the making of a concession" it does not permit him to avoid the statutory
mandate to recognize and meet with the representative of its employees.
There is an obvious difference between refusing to recognize or to sit down and
bargain, as contrasted with refusing to agree or make a concession. And in the
situation before us Respondent never reached a point in its labor relations where
there was anything to agree upon, or where it could properly refuse to make
a concession, none having been asked. All Respondent had was a request to recog-
nize and to bargain, and the surmise that it was about to be faced with higher wage
costs. No contract had been offered; no wage rates suggested. On the contrary,
there is the testimony of Union Representative Vaughn, which I credit, that wage
demands made upon employers in the area vary and are adapted to local and indi-
vidual plant conditions. Thus, he stated, his union had a contract covering the
McKesson-Robbins drivers at an hourly rate of less than $1.40; and under a contract
between the Union and Southern Wood Ware, a local employer, the drivers receive
less than $1.30 per hour. Respondent, therefore, in viewing the prospect of union-
ization of its drivers in the worst possible economic light, appears to have confused
rumor and speculation with what might well have been a reasonable wage demand;
albeit the stated objective of the employees in joining the Union was most certainly to,
improve their lot.
Upon such considerations as the foregoing it is the Board's position, approved by
the courts, that a course of conduct calculated to thwart employee organizational ac-
tivity cannot be justified by economic considerations, real or fancied.ll It should be
noted, therefore, that the Adkins case, relied upon by Respondent, has no application
to the situation before us.12 For there, unlike here, the organization stage had been
passed, the employer had already recognized the union as its employees' representa-
tive, and had already received and considered the union's demands presented at a
bargaining session. Thus it had had full opportunity to compare the union's specific
demands with its own wage scale and its own ability to make the economic adjust-
ment. This point was never reached by the parties in the instant proceeding.
Viewing the Adkins case as one involving the give-and-take of an established
bargaining relationship, with the economic position of each party fully presented and
understood, the court held the employer's economic action, taken after bargaining
had commenced, had been dictated by economic necessity and not for motives
directed against the union. As it was not in issue in the Adkins case, it cannot be
cited for the proposition that such action, as here, is equally lawful when taken
before bargaining and, in fact, to avoid it.
Respondent's reason for the change of its method of operation here could not
have been "because the Union wage scale was too high for Respondent to operate
6 Citing, among other cases, N.L R B v. Adkins Transfer Co, Inc., 226 F. 2d 324 (C.A.
6), and NLRB. V. The Houston Chronicle Publishing Company, 211 F. 2d 848 (C A. 5).
"'It is not intended at this point to consider the facts in this case insofar as they
relate to the alleged refusal to bargain in violation of Section 8(a) (5). This will be
treated in a subsequent portion of the Report. Such refusal as Respondent has engaged
in here is, therefore, assessed only as credible evidence of the employees' Interest in and
activities in behalf of their chosen union, and Respondent's reaction thereto
n See, for example, N.L.R.B. v. Somerset Classics, Inc., at al, 193 F. 2d 613 (CA. 2),
cert. denied 344 U S. 816; N.L R B. v. E C. Brown Co., at al, 184 F 2d 829 (C A 2) ;
Tennessee-Carolina Transportation, Inc, 108 NLRB 1369, 1371, 1379; New Madrid Manu-
facturing Company, at al., d/b/a Jones Manufacturing Company, 104 NLRB 117, 121,
enfd. as mod, 215 F 2d 908 (C.A 8) ; Howard Rome, d/b/a Rome Products Co., at al.,
77 NLRB 1217.
12 N.L R B v. Adkins Transfer Co., Inc., 226 F. 2d 324 (C A. 6), denying enforcement
of 109 NLRB 956. Respondent also relies upon N L.R.B. v. The Houston Chronicle
Publishing Company, 211 F. 2d 848 (C.A. 5), denying enforcement of 101 NLRB 1208.
As the Board does not appear to have accepted the court of appeals' rejection of its
position in the case, I must, with due respect for the court, disagree with it and rely
upon the decision of the Board.
CONSUMERS GASOLINE STATIONS 1051
profitably the department in question," 13 for the reason that Respondent never met
with the Union to find out.
Respondent, we know from credited testimony, did what it did, at the time it did,
to avoid the necessity of meeting with the chosen representative of its employees.
Had it announced in advance its intention of doing just that it is established by
settled authority that a threat, so motivated, to curtail business operations, like threats
to close down or move a plant, would be unlawful interference, restraint, and
coercion of employees in the exercise of their statutory right to organize.14 It
would strain sound logic to hold that the implementation of such an unlawful threat
would not be equally unlawful when the injury is inflicted. As the Respondent's
conduct here-the curtailing of a business operation-was concededly intended to
avoid recognition and bargaining, I find it to have constituted discrimination against
drivers Head, Warren, and Wyatt because of their membership in the Union and
because of its activity in their behalf. I find, therefore, in accord with the foregoing,
that Respondent violated Section 8(a)(3) and (1) of the Act.15
C. The refusal to bargain
The complaint alleges that all transport truck drivers and relief drivers, excluding
all other employees and supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of the Act. The
Respondent stipulated on the record that such a group would constitute an appro-
priate bargaining unit at the time the request for recognition was alleged to have
been made. I find, in accordance with the complaint, therefore, that the grouping
described above is an appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
The complaint further alleges that on or about January 1, 1959, a majority of
the employees in the foregoing bargaining unit designated and selected the Union
as their representative for the purposes of collective bargaining. I find, upon the
credible and uncontradicted testimony of Union Business Agent Vaughn, that drivers
Wyatt, Head, and Warren, three of the Respondent's four drivers in the foregoing
unit, continued thereafter in force and effect their membership in their designated
Union, during all relevant periods, and constituted a majority of the employees in
the foregoing appropriate unit.
As outlined in detail above the Respondent, upon receipt of the Union's request
for recognition as majority representative and for a bargaining meeting, replied by
requesting a later date for such a meeting. It thereupon effected the contracting of
all gasoline transporting, and in advance of the scheduled meeting with the Union
terminated the employment of its drivers for the stated reason that it was no longer
engaged in this particular phase of the business.
Upon the foregoing facts and after full consideration of the reasons advanced
by Respondent for its summary action, it has been found that Respondent effectively
discriminated against its drivers in violation of Section 8(a)(3) and (1) of the Act.
On all the facts it is found that the Respondent was under a duty to recognize and
bargain with the Union. This finding, as previously noted, is premised upon the
fact that when Respondent received the Union's January 13 request for recognition
and bargaining, and acknowledged it by suggesting a postponement of the meeting
date, it was placed on notice of the Union's representative status. It is well estab-
lished that subsequent action by an employer in derogation of the Union 's status
as representative of his employees constitutes a rejection of its obligation to bargain
collectively.16
Consequently it is found that upon the receipt of the Union's request of January
13 an obligation was imposed upon Respondent to bargain collectively with the
Union in behalf of its employees. As Respondent's action in contracting its gasoline
13 N.L R.B. v. Adkins Transfer Company, supra, at p. 328.
14 See for example, Nebraska Bag Co, et al., d/b/a Nebraska Bag Processing Company,
122 NLRB 654; N.L.R.B. v. New England Upholstery Co., Inc., 268 F. 2d 590 (C.A. 1),
enfg. 121 NLRB 234.
16 Nor am I persuaded that the discharge of these employees was any less discrimina-
tory because the contracting of the trucking operations was merely accelerated, rather
than instituted, for reasons proscribed by the Act. Embarkment upon an otherwise
legitimate course of action is unlawful when done for discriminatory purposes. See
N.L.R.B. v. Montgomery Ward & Co., Inc., 242 F. 2d 497, 502 (C.A. 2), enfg. 115 NLRB
645.
16 Brown Truck and Trailer Manufacturing Company, Inc, et al., 106 NLRB 999;
Diaper Jean Manufacturing Company, 109 NLRB 1045, 1047-1048.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hauling was for the express purpose of avoiding the consequences of such bargain-
ing it clearly constituted conduct in derogation of the employees' rights. Accord-
ingly I find that Respondent's action was a refusal to bargain with the Union in
violation of Section 8(a) (5) of the Act.17
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IV, above, occurring in con-
nection with the Respondent's operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
VI. THE REMEDY
It has been found that by discontinuing the gasoline transport phase of its business,
discharging its drivers, and contracting with a common carrier for the hauling of its
gasoline to service stations, at a time when the Union was seeking recognition and
bargaining, the Respondent violated Section 8(a)(1), (3), and (5) of the Act. I
shall recommend that Respondent cease and desist from the unfair labor practices
found and take certain affirmative action.
In any evaluation of the offending conduct, with a view to applying an appropriate
affirmative remedy, it is essential that we fully understand the basic character of the
conduct and its motivating cause. Thus, as has already been determined, an em-
ployer's right to operate his business in a manner of his own choosing is not, as a
general proposition, to be disputed. Nor upon the credited, uncontradicted facts
herein can it be said that Respondent's initial determination to change its mode of
business operation by April 1959, or earlier, was grounded upon other than sound
economic considerations. What has been found to be unlawful herein is Respondent's
acceleration of its program for reasons proscribed by the Act.
Upon the foregoing considerations the Board's remedy set forth in The R. C.
Mahon Company (118 NLRB 1537), cited by Respondent, is not applicable here.
In that case the conduct found to have been violative was not, as here, initially
grounded upon legitimate economic justification. On the contrary, the Board found
that the action had been preceded by a course of unlawful conduct which included
(1) surveillance and interrogation, (2) the discriminatory discharge of three em-
ployees, and (3) the fact that the subcontracting arrangement was not a business
consideration that, as here, had been in the process of implementation at some
earlier date, but was a proposal made a year and a half earlier and never acted upon.
Thus it is clear that the motivation for the changeover was based upon considera-
tions not related to the economics of the business, and the Board so found. The
facts herein, however, establish the contrary and eliminate any possibility of an
application of the so-called pretext theory, that the offending action was planned
merely as an excuse for other less obvious motives.I8
We are presented, therefore, with the problem of determining how best we can
remedy the effects of a business arrangement clearly unlawful in its precipitate appli-
cation, however legitimate its motive may have been when initially taken, and how-
ever fully justified it may have been as a proper economic method of carrying on the
Respondent's operations in the future.
Respondent's officials testified credibly that all of its transport equipment, with
the exception of a tractor, had been sold on the open market for $12,700.19 The
remaining piece is about to be sold for approximately $3,000. While the record is
not clear as to the present replacement value of this equipment,20 it does establish
that the equipment sold had originally cost in the neighborhood of $25,000.
If Respondent is ordered to reinstate in the usual manner the drivers against whom
it has discriminated, and to reassign them to jobs which they held when discharged,
and if it is required to bargain upon request with the Union in their behalf, then I
must, of necessity, recommend that the Respondent be required to revert to its former
method of gasoline hauling, replacing the trucks in the process, to accomplish the
terms of such an affirmative order for reinstatement and bargaining. I am not dis-
posed to do so.
171bid. See also cases cited in footnote 11, supra.
se Missouri Transit Company, 116 NLRB 587, 591.
19 This disposal does not include a delivery truck presently being used by the Respond-
ent for the transportation of batteries, tires, and other accessories not covered by the
contract arrangement See footnote 5, supra
20 Office Manager Hanson stated that a modern fully equipped trailer and tractor would
cost in excess of $20,000.
CONSUMERS GASOLINE STATIONS 1053
To begin with the Board's processes are not punitive and never were so intended.21
Any requirement that would cause the complete disruption of an economically
sound and legitimately designed business arrangement to the extent of the expense
required herein could not be viewed as anything but punitive 22 Furthermore, it is
to be noted that to require reversion to the trucking operation and to reinstate the
employees to their jobs as drivers would be to bestow upon them far more than they
would have been entitled to had the plan been put into operation as scheduled, with-
out the intervention of the Union. Thus we would be providing the drivers with
jobs for an indeterminate duration, long past the April 1959 relicensing deadline,
when the trucking was to have been abolished. Under such circumstances and upon
the peculiar sequence of facts herein I will not recommend that Respondent reinstitute
the gasoline transport aspects of its business.
As the drivers against whom it has discriminated cannot, upon my failure to
recommend the return of their trucks, be reinstated to the jobs as drivers, I would
recommend that reinstatement be adapted to sound personnel practice. Had their
employment not been interrupted before April 1959, these drivers would, under any
circumstances, have been displaced. As discriminatees in the interim they must be
reinstated. In their dual character as discrimmatees who would have been displaced,
it is Respondent's obligation to do with them what it would have done had they
remained in its employ: presumably find employment for them elsewhere in its
organization. Because it is impossible to determine at this time the particular job,
if any, to which Respondent would have transferred the drivers had it not discrimi-
nated against them in the manner found herein, I shall order Respondent, after
consultation with the Union, as recommended hereafter, to offer to drivers Wyatt,
Head, and Warren immediate and full reinstatement to the jobs, if any, they would
now occupy had Respondent not unlawfully discriminated against them by precipi-
tately abolishing its gasoline transport facilities for the purpose of avoiding its obliga-
tion to recognize and bargain with the Union.23 I will further recommend that this
reinstatement be without prejudice to their seniority and other rights and privileges,
and that Respondent make them whole for any loss of wages they may have suffered
by reason of the aforesaid discrimination, leaving to the compliance stage of this
proceeding the determination of the jobs they would now hold and the loss of wages
they have suffered,24 the latter to be computed in accordance with the Board's
customary formula as set forth in F. W Woolworth Company, 90 NLRB 289 As I
find it unrealistic to order the unqualified reinstatement of these drivers, I find it
equally unrealistic to require bargaining in their behalf except insofar as they would
have been entitled to bargaining in their behalf during the critical period immediately
before their scheduled April 1959 displacement. I will, therefore, order that the
Respondent not only reassign the drivers to other positions, if any, as recommended
above, but in addition I will require that in any event it consult with the Union as a
preliminary to such reassignment. In addition, I will order the Respondent to
bargain with the Union in the event the contracting arrangement is abandoned at
some future date and Respondent reinstitutes the practice of hauling its gasoline
products.
Upon the basis of the foregoing findings of fact and upon the entire record, I make
the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent occur in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act
3. All transport truck drivers and relief drivers of the Respondent, excluding all
other employees and supervisors as defined in the Act, constitute a unit appropriate
21 Republic Steel Corporation v. N L.R.B., 311 U.S 7, 11-12; Tennessee-Carolina Trans-
portation, Inc, 108 NLRB 1369, 1371. Cf. N.L R B. v. Coats and Clark, Inc., 241 F 2d
556, 5,59 (CA. 5).
''a Tennessee-Carolina Transportation, Inc., supra.
a3 Cranston Print Works Company, 117 NLRB 1834, 1843, enforcement denied on other
grounds, 258 F. 2d 206 (CA. 4) ; International Hod Carriers, Building and Common
Laborers Union of America, Local No 341 (J. H. Pomeroy and Company, Inc ), 117
NLRB 724; R J. Oil and Refining Co , Inc, 108 NLRB 641, 649. See also, Mount Hope
Finishing Company, et al., 106 NLRB 480, 499, enforcement denied on other grounds,
211 F 2d 365 (C.A. 4).
24 Missouri Transit Company, 116 NLRB 587, 591-592.
:1054 DECISIONS OF NATIONAL LABOR RELATl'ONS BOARD
for-the purposes of collective bargaining , within the meaning of Section 9(b) of
,the Act
4. The Union was, on January 1, 1959 , and at all times since has been , the exclu-
,sive representative of all employees in the aforesaid unit for - the purposes of
collective bargaining , within the meaning of Section 9(a) of the. Act.
5. By refusing to bargain collectively with the Union , as the . ekclusive represents-
tive of the employees in the aforesaid appropriate unit, the Respondent has engaged
in and is engaging in unfair- labor practices within the meaning of Section 8(a) (5)
of the Act.
6. By discriminating in regard to the tenure of employment of Billy W. Head, Ned
L. Warren, and Newall T. Wyatt, the Respondent has engaged In and is engaging in
unfair labor practices within the meaning of Section 8(a) (3) of the Act.
7. By the foregoing conduct the Respondent has interfered with , restrained, and
-coerced its employees in the - exercise of rights guaranteed them by Section 7 of the
'Act and thereby has eligagedin and is engaging in unfair labor practices within the
'meaning of Section 8(a) (1) of the Act. -
8. .1&6 aforesaid unfair laboti practices are unfair labor practices affecting com-
meree within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Martin Theatres of Georgia , Inc., d/b/a WTVC and Radio &
Television - Workers Local No. 662, International Brother-
hood of Electrical Workers, AFL-CIO. Case No. 10-CA--4046.
March 10, 1960
DECISION AND ORDER
On October 8, 1959, Trial Examiner A. Bruce Hunt issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that said complaint be dismissed,
as set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions and a supporting
brief. The Respondent subsequently filed a brief in reply to that of
the General Counsel.
The Board I has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings . are hereby affirmed.' - The Boad 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, conclu-
.sions,2 and recommendations.
.[The Board dismissed the complaint.]
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated Its powers in connection with this case to a three -member, panel
[Chairman Leedom and Members Bean and Jenkins].
2 We find , in agreement with the Trial Examiner, that Respondent did not violate
Section 8(a) (1) by Morgan's remark to Lyle on February 9, 1959. However , unlike the
Trial Examiner , we do not rely at all upon the isolated nature of the statement but
rather upon the fact that in our view the statement itself was an innocuous one which,
even presuming Morgan to be a supervisor , at that time, would not support a finding of
a violation of the Act.
126 NLRB No. 130.