Gulf Coast Oil Co.

National Labor Relations Board - Board Decisions

Feb 5, 1952

97 N.L.R.B. 1513 (N.L.R.B. 1952)

GULF COAST OIL COMPANY 1513
restrain, or coerce its employees in the exercise of the rights guaranteed under
Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Furniture Workers of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By prohibiting on or about March 1, 1951, and at all times thereafter the
distribution of union literature on the Respondent's property (luring the non-
working time of the employees, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4. The Respondent, except as stated above, has not engaged in any acts or
conduct in violation of Section 8 (a) (l.) of the Act.
[Recommended Order omitted from publication in this volume.]
GULF COAST OIL COMPANY and INTERNATIONAL BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN , AND HELPERS OF AMER-
ICA, GENERAL TRUCK DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL
270, AFL. Case No. 15-CA-297. February 5,1950
Decision and Order
On May 14, 1951, Trial Examiner Stephen S. Bean issued his Inter-
mediate Report in the above-entitled proceeding, recommending that
the complaint herein be dismissed, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, all parties were
advised that exceptions were due on or before June 6, 1951. The
General Counsel sent a telegram to the Board before that date, on
May 31, 1951, requesting a 5-day extension of time to file exceptions
to June 11, 1951. However, the General Counsel did not serve written
copies of this request upon any of the parties. On May 31, 1951,
the same day that the General Counsel made his request, the Board
in reply sent a telegram to all parties extending the time for filing
to June 11, 1951.
On June 1, 1951, at approximately 10 a. m., the General Counsel's
representative called one of the Respondent's attorneys on the tele-
phone and advised that he had applied for an extension of time in
which to file exceptions. At approximately 10: 30 a. m. on the same
day, the Respondent's attorney received the Board's telegram of May
31, 1951, granting the extension. On June 4, 1951, the General Coun-
sel advised the Respondent's attorney that he was filing exceptions
97 NLRB No. 238.
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Intermediate Report. On June 5, 1951, the Respondent's at-
torney filed a motion that the extension previously granted to the
General Counsel be recalled and that, unless exceptions to the Inter-
mediate Report were filed by June 6, 1951, the original date on which
they were due, such exceptions should be deemed waived for all.pur-
poses and the Intermediate Report should be adopted by the Board_
On June 7, 1951, the General Counsel submitted his exceptions with
a supporting brief and a response to the Respondent's motion. On
June 25, 1951, the Respondent was given until July 9, 1951, to file
a reply to the General Counsel's exceptions and brief and ruling was
reserved on the Respondent's motion. The Respondent filed a reply
brief on July 6,1951. '
While we agree with the Respondent's contention that the Gen-
eral Counsel failed to comply literally with the requirement in Section
102.46 of the Board's Rules and Regulations, that requests for extension
of time in which to file exceptions shall be in writing and copies
thereof shall be immediately served- on each of the other parties,
we are convinced that the policies of the Act would best be effectuated
by construing the General Counsel's timely telephonic notice as sub-
stantial compliance. In making this determination, we have taken
into consideration the fact that the Rules and Regulations specifically
provide that they shall be -liberally construed and the fact that a
request for extension of time is in itself only a procedural step. Ac-
cordingly, the Respondent's motion is hereby denied.
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, conclu-
sions, and recommendations, with the following additions and
modifications :
We agree with the Trial Examiner that the complaint in this case
should be dismissed. However, we adopt his reasoning only to the
extent indicated below. The pertinent facts, as more fully set forth
in the Intermediate Report, are as follows.
Instead of reporting for work on August 18, 1950, at the usual time
of 7 a. in., all 11 of Respondent's truck drivers went to the union
hall where benefits anticipated to be derived from union organization
were discussed, initiation fees were turned over, cards delivered, appli-
cations for insurance were made, booklets were issued, and admission
into the Union was formalized. They then returned to the Respond-
'In view of our disposition of this case , we find it unnecessary to pass upon the Trial
Examiner's ruling by which be rejected Respondent 's written offer of proof as to alleged
collusion between a Board agent and the union president.
GULF COAST OIL COMPANY 1515
ent's plant between 9: 45 a. in. and 10: 15 a. in. Meanwhile, Respond-
ent's president, Sam Paciera, who was in charge of all hiring and
firing, appeared at the plant at 8 a. in. Around 9 a. in., after hav-
ing attempted, and failed, to ascertain the whereabouts of the old
drivers, Sam Paciera arranged to obtain new drivers. The Trial
Examiner found, and the record supports his findings, that 8 new
men were hired by Sam Paciera on Friday, August 18, 1950, before
he knew the old drivers had returned.2 Sam Paciera apparently con-
sidered 8 new drivers sufficient to meet Respondent's requirements for
August 18 and 19, 1950. There was some delay after the returning
old drivers arrived at the plant before they spoke to anyone. After
4 of the trucks had left the plant, Morgan, one of the old drivers, came
into the office where Vincent Paciera, Respondent's vice president,
was working and said, "I don't suppose any of us are taking our trucks
out today?" Vincent replied, "I don't suppose you are."
At 3 p. m. on August 18, 1950, Sam Paciera received a telephone
call from Union President Moore, who asserted that the 11 old drivers
had been fired that morning and requested that they be reemployed 3
Sam Paciera replied to Moore that the men did not appear for work
and he considered they had quit. Moore repeated that the employees
had been fired and Paciera had refused to reinstate them. Paciera's
response was that he had replaced the men before they appeared at
the plant. Moore said he wanted to make an appointment with
Paciera "to settle the dispute." Paciera asked Moore what he meant
by "dispute," and insisted that the men had quit. Moore was equally
insistent that the men had been discharged. The conversation con-
cluded with Moore saying Paciera was forcing him to file charges
against the Respondent for refusing to meet with the Union and to put
the men back to work, and Paciera saying he was going to consult his
lawyer before talking any further to Moore. On the following Mon-
day, August 21, 1950, Sam Paciera hired 3 new men.
The Trial Examiner in effect found, and we agree, that 8 replace-
ments were hired on August 18, 1950, before Sam Paciera knew the
' The General Counsel contends that only three new employees were hired before the
old drivers returned and, alternatively , that only five new employees were so hired. The
General Counsel 's first contention is based upon the testimony of one George Sticker. While
it is true , as the General Counsel asserts , that the Trial Examiner did not discuss Sticker's
testimony in his Intermediate Report, the record makes it evident that Sticker was preju-
diced against the Respondent, and we believe It is fair to infer that the Trial Examiner
omits reference to this testimony because he did not credit it.
The General Counsel 's alternative contention is based upon the premise that Respondent
did not sustain its burden of proving that eight new employees rather than five had been
hired. We find this contention of the General Counsel without merit, for the Respondent's
president testified that he hired three men in addition to the five previously hired on
August 18 to start work on August 19. Contrary to the position of the General Counsel,
the uncontroverted oral testimony of the Respondent 's president is sufficient to sustain its
burden of proof.
' The Trial Examiner considered this an unconditional offer to return made for and in
behalf of all employees who had absented themselves from work.
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11 old drivers had reported for work, and consequently in no event
could there have been any discrimination in the failure of the Re-
spondent to give employment to the 8 who had been so replaced. The
General Counsel concedes that the Respondent was privileged to re-
place all 11 old drivers on August 18, 1950, when they failed to report
to work; 4 but he contends in effect that on August 21, 1950, the Re-
spondent unlawfully refused to reinstate 3 of them who had not been
so replaced, with knowledge by then that they together with the others
had abstained from work for the purpose of going to the union hall.
However, on the basis of the present record we. find no merit in the
General Counsel's contention.
The Trial Examiner found, and this finding is amply supported
by the record, that there was no independent evidence of antiunion
animus on the part of the Respondent. That the Respondent knew
At material times that its old drivers failed to report to work in order
to engage in union activity, constitutes no substantial basis for con-
cluding that, in refusing to reinstate three of them, the Respondent
was `motivated by their union activity rather than by their mere ab- -
sence from the plant and the attendant operational difficulties. In-
deed, it appears that the same policy of denying immediate employ-
ment to all drivers who failed to report for work at the scheduled
time was applied by the Respondent both before and after it knew of
union activity among its employees.5 Accordingly, we find no dis-
criminatory motivation by the Respondent.
Nor do we believe that, apart from any element of discriminatory
motivation, the concerted activity of the old drivers was of a type
which immunized them against discharge.6 The activity here
amounted to an unwarranted usurpation of company time by the em-
ployees to engage in a sort of union activity customarily done during
nonworking time. In electing to go to the union hall when they were
supposed to be at work, the drivers, for their own convenience, vio-
lated the Respondent's known established reporting rule. -In these
circumstances, we find applicable those cases holding that employees
who violate valid nondiscriminatory company rules in connection
with their union activity are vulnerable to discharge.7 In view of the
foregoing, we find that the Respondent's refusal to give employment
' The General Counsel's arguments are directed to the number of old employees actually
replaced by the Respondent before it knew the old men had returned to work, and not to
the Respondent's right to make replacements.
In this connection , we note that at a later date the Respondent did rehire some of the
old drivers.
Cf. Home Beneficial Life Insurance Co , Inc v. N. L. R. B, 195 F 2d 280, The Office
Towel Supply Company, Inc, 97 NLRB 449 ; Spencer Auto Electric Inc., 73 NLRB 1416,
as illustrative of the types of concerted activity for which employees may not be
penalized.
' See Arkport Dairies, Inc ., 95 NLRB 1342 ; Peerless Woolen Mills , 86 NLRB 82. ^.
GULF COAST OIL COMPANY 1517
on August 21; 1950, to three of the old drivers did not violate Section
8 (a) (3) of the Act.
We further find, in agreement with the Trial Examiner, that as-
sinning Sam Paciera,s statements during the telephone conversation
with Moore on the afternoon of August 18, 1950, constituted a refusal
to bargain, the Respondent did not violate Section 8 (a) (5), because,
apart from any other consideration, it had already lawfully replaced
8 of the 11 truck drivers in the appropriate unit before any request
to bargain was made. Therefore the Union did not represent a ma-
jority of Respondent's employees at the time of the. request.8
In view of the above, we find, as did the Trial Examiner, that the
Respondent did not commit any violations of the Act. We shall ac-
cordingly dismiss the complaint in its antirety.°
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint herein be, and it hereby is,
dismissed.
MEMBER HOUSTON took no part in the consideration of the above
Decision and Order.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge filed August 18, 1950 , by International Brotherhood of Team-
sters, Chauffeurs , Warehousemen , and Helpers of America , General Truck Driv-
ers, Warehousemen and Helpers , Local 270, AFL , herein called the Union, the
General Counsel of the National Labor Relations Board ,' by the Regional Direc-
tor for the Fifteenth Region ( New Orleans , Louisiana ), issued his complaint
dated February 9, 1951 , against Gulf Coast Oil Company , herein called Respond-
ent or Delaware Corporation, alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 ( a) (1), (3), and ( 5) and Section 2 (6) and ( 7) of the National Labor
Relations Act as amended , 61 Stat. 136 , herein called the Act.
8 On appropriate unit, we agree that the city driver might be excluded because of a dif-
ference in his interests from those of the over -the-road truck drivers. (Jam Beer Company
of Houston, Texas, 89 NLRB 1233 ) However, we disavow any implication which might
he drawn from the General Counsel 's apparent concession or the Trial Examiner 's discus-
sion that the fact that the city driver was not himself engaged in interstate commerce
would per se constitute a basis for such exclusion.
9 We do not rely upon , and expressly reject, that portion of the Trial Examiner 's discus-
sion in which he said : "It is equally good law that once an economic striker has been
superseded by a replacement he no longer remains an employee ." By statute , an economic
striker continues to be an employee for certain purposes so long as the particular labor dis-
pute exists . In this case , however, it cannot be said that the drivers in question at any
time assumed the status of strikers.
1 The General Counsel and his representative at the hearing are herein called the General
Counsel and the National Labor Relations Board is called the Board.
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices, the complaint alleged in substance
that (1) Respondent, (a) interrogated employees as to their union membership
and activity, (b) made promises of benefit to employees to persuade them to
cease their union membership and activities, and (c) coerced employees by
threatening to cease operation if employees did not give up their union member-
ship and activities; (2) on or about August 18, 1950, discharged the following
named employees :
E. J. Kirby David M. Brewer
John L. Sullivan Austin Byrd
Richard Cain Rodney Slaven
Eloise Cain Walter Whitehead
James T. Morgan T. L. Kyzar
W. C. Brewer
and thereafter continuously failed and refused to reinstate, rehire, or employ
said employees except that it reinstated, rehired, or employed the following
named employees on the dates indicated :
David M. Brewer, September 16, 1950.
Austin Byrd, January 22, 1951.
T, L. Kyzar, September 18, 1950.
i 3) on or about August 18, 1950, and continuously thereafter, refused the Union's
request to be recognized as exclusive representative of employees in an appropri-
ate unit and to bargain collectively in respect to rates of pay, wages, hours of
employment , and other conditions of employment ; and (4 ) that by the foregoing
conduct the Respondent engaged in unfair labor practices within the meaning
of Section 8 (a) (1), (3), and (5) of the Act.
Copies of the charge were served on Sam Paciera, d/b/a Gulf Coast Oil Com-
pany, and copies of the complaint and a notice of hearing were duly served upon
Respondent Delaware Corporation and the Union. During the course of the
hearing on March 2 , 1951, the General Counsel filed and the Trial Examiner
allowed,' over the objections of Respondent, a motion to amend the complaint.
The amendment alleged that since on or about January 1, 1951, Gulf Coast Trans-
portation Company of Louisiana , Inc.,' is a corporation organized under the laws
.of the State of Louisiana with principal offices at New Orleans, Louisiana, at the
same location occupied by Respondent Delaware Corporation and is a successor
affiliate of the Delaware Corporation through and by utilization of which Re-
spondent Delaware Corporation has engaged in and is engaging in the bulk dis-
tribution of petroleum products in Louisiana, Mississippi, and Alabama, that
the Transportation Company, Louisiana corporation, and Respondent Delaware
Corporation have the same corporate officers holding the same positions, the
same stockholders, owning stock in the same percentages, that the two are
under common management and control, that Respondent since August 18, 1950,
and Respondent with and through the Transportation Company since January 1,
1951, and continuously thereafter, has failed and refused to reinstate, rehire, or
employ all but 3 named employees of the 11 employees alleged to have been dis-
charged on or about August 18, 1950, and that Respondent since on or about
August 18, 1950, and Respondent through and with the Transportation Company
since on or about January 1, 1951, and continuously thereafter, has refused to
2 Respondent admitted allowance of this motion was within the discretion of the Trial
Examiner.
$ Erroneously referred to in the early part of the testimony as Gulf Coast Transportation
Company of Mississippi Inc.
GULF COAST OIL COMPANY 1519
recognize and bargain collectively with the Union as the exclusive representa-
tive of the employees in the appropriate unit. The amendment contained a
prayer that the Transportation Company, the Louisiana corporation, be joined
and made a party to this proceeding.
This motion was served on Vincent Paciera, vice president and treasurer
of Respondent and the Transportation Company, at the hearing on March 2, 1951,
in the presence of the Trial Examiner. The TranspQrtation Company was al-
lowed 10 days within which to answer and on March 13, 1951, appeared through
its attorney, Beryl E. Wolfson, Esq., of Wolfson and Wolfson, 701 Canal Bank
Building, New Orleans, Lousiana, who stated he had recently been retained
by Gulf Coast Transportation Company of Louisiana, Inc. (the Trans-
portation Company), that he noted the only document his client had been served
with was a motion to amend the complaint, that he objected to any proceedings
against Gulf Coast Transportation Company of Louisiana , Inc., for the reasons
.said corporation had not been served with a copy of the original complaint,
the motion to amend the complaint contained no order relative to a date and
place of hearing, said corporation was deprived of its right to cross-examine
witnesses, that he took the position all proceedings against Gulf Coast Trans-
portation Company of Louisiana , Inc., were violative of its rights under
Article V of the Constitution , and accordingly said corporation did not re-
gard itself as a party to the proceedings and would not defend in any pro-
ceedings . Upon stating his objections, Mr. Wolfson withdrew from the hearing
room . Respondent filed an answer and a supplemental and amended answer
in which it admitted that it is a corporation organized under the laws of the
State of Delaware and authorized to do business in the State of Louisiana
with principal offices at New Orleans, Louisiana, that it purchased petroleum
products during the calendar year 1950 of value in excess of $200,000, sub-
stantially all of which was purchased within the State of Louisiana, that it
distributed and sold petroleum products during the same year in excess of
$250,000 , approximately 15 percent of which was transported and sold outside
the State of Louisiana, and that it has never met with the Union to bargain.
Respondent admitted that on or about the days alleged, it reemployed David
M. Brewer , Austin Byrd , and T . L. Kyzar . It denied that it is engaged in the
bulk distribution and retail sales of petroleum products in the States of Loui-
siana, Mississippi , and Alabama and averred it had sold and transferred all of
its right , title, and interest in and to all of its trucking equipment and is no
longer engaged in the transportation of or distribution of gasoline and petroleum
products. It denied that at the time of the filing of its answer it was
engaged in commerce within the meaning of the Act. It denied that it dis-
charged any of the employees enumerated in the complaint or that it failed
and refused to reinstate, rehire, or employ them, with the three admitted excep-
tions of Brewer , Byrd , and Kyzar , or that it discharged them or refused or con-
tinues to refuse to reinstate , rehire , or employ them because of their union
membership or activities . It denied that the employees named in the complaint
constitute a unit appropriate for the purpose of collective bargaining within
the meaning of Section 9 (b) of the Act. Respondent further denied that a
majority of its employees in any appropriate unit designated the Union as its
bargaining representative or that the Union has been the exclusive bargaining
representative of such employees ; that it refused to recognize and bargain
with the Union, and generally denied the commission of any unfair labor
practices. It averred that no copy of the charge was ever served upon it, that
the charge was not addressed to it but to Sam Paciera d/b/a Gulf Coast Oil
Company, and that consequently the procedure provided in Section 10 (a) to
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(i) of the Act had not been complied with . Respondent also averred in its
answer that the Union is not in compliance with the requirements of Section
9 (f), (g), and (h) of the Act within the meaning of Section 203.13 of the
Board's Rules and Regulations , Series 5. It further averred that on August
18, 1950, its employee truck drivers knew that it had customers who made
daily purchases of gasoline and petroleum products and it was imperative
that daily trips be made -to these customers , and that the truck drivers knew
they were supposed to report at 7 a. in. and that if all of them took leave off
without requesting permission or notifying Respondent it would completely
tie up the distribution end of Respondent 's business ; that the drivers failed
to report for work at 7 a. in. on August 18, 1950 , without any notification
to Respondent and without any knowledge on Respondent 's part as to their
whereabouts ; that it made reasonable unsuccessful attempts to find its drivers,
and, after a reasonable lapse of time, assumed they had quit or were dis-
satisfied and might remain away indefinitely and, accordingly, after using due
diligence to ascertain the whereabouts of the drivers and after waiting a time
it deemed reasonable in consideration of the circumstances , it obtained re-
placement drivers. Respondent still further averred that between 9: 30 a. in.
and 10 a. in , August 18, 1950, it hired Charles Spriggs, Irving Ohmer, Kenneth
Cauffman, Adam Guilbeau, Lindsey Martin, Edward B. Conner, George E.
Sticker , and Harold Miller as replacements ; that it was not until sometime
after these replacements had been employed that some of those named in the
complaint requested letters of recommendation from Respondent 's president
who agreed to give such letters ; that no explanation or notice was given to
said officer concerning the earlier whereabouts and the failure to report to
work at 7 a. in. of those who requested the letters ; that at the time the
letters were requested the Respondent had working for it all the drivers
needed ; that at no time, through any of its officers, agents , or representatives,
did it terminate the employment of any persons named in the complaint and
that any termination of employment which may have occurred was solely
and entirely the result of the acts or failure to act of said employees. Re-
spondent finally averred that Rodney Slaven had, on August 17, 1950, stated
he was quitting at the end of his day's run on August 17, 1950, and that
accordingly on August 18, 1950, Respondent caused two candidates for em-
ployment to report for the purpose of selection of one as a replacement
for Slaven.
Pursuant to notice a hearing was held at New Orleans and Baton Rouge,
Louisiana, from February 27 to March 6, 1951, and at New Orleans from March
13 to March 15, 1951, before Stephen S. Bean , the undersigned Trial Examiner
duly designated by the Chief Trial Examiner . The General Counsel and Re-
spondent were represented by counsel and the Union by one of its officers. Full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues , was afforded all parties.
At the opening of the hearing on February 27, the General Counsel 's objection
to the enforcement of Respondent 's motion dated February 26 for a more definite
statement of facts ( General Counsel's Exhibit 10) was allowed . The General
Counsel stipulated and admitted that no persons other than Sam Paciera and
Vincent Paciera, the president and the vice president and treasurer, respectively,
of Respondent , engaged in unfair labor practices and pointed out that the other
information the motion sought to elicit called for a showing of detailed evidence
rather than a more specific adumbration of pleadings. I informed the parties
at the time of allowing the General Counsel's objection that I would be disposed
to allow Respondent a reasonable amount of time at the conclusion of the General
GULF COAST OIL COMPANY 1521
Counsel's case, before it would be required to start the presentation of its evidence.
The General Counsel rested on March 6, 1951, and the hearing was resumed 1
week later, on March 13, 1951, on which date Respondent opened its case.
Within 5 days prior to the opening of the hearing on February 27, 1951, upon
requests of Respondent (Respondent's Exhibits Nos. 1 and 2), the Regional Direc-
tor for the Fifteenth Region issued subpenas, one directed to himself calling for
the production of the files of the Board, and the other directed to Max Schwartz,
field examiner for the Board. On February 27, the General Counsel filed a petition
(General Counsel's Exhibit No. 11) to revoke the subpena directed to the Regional
Director, and Richard C. Keenan, chief law officer, Fifteenth Region, appeared
for Schwartz and dictated for the record (Respondent having waived any require-
ment that it be filed in writing) a petition to revoke the subpena directed to
Schwartz. The petitions were argued by counsel, and upon consideration thereof
I granted the petition to revoke the subpena directed to the Regional Director
(see Paul UMitch and Co., Inc., 26 NLRB 679). Respondent stated it believed
Schwartz had some evidence at his command which would be very material. It
did not appear that written consent of the Board or the Chairman of the Board
or the General Counsel, for Schwartz to testify, had been sought. It being my
opinion that the evidence whose production was required by the subpena directed
to Schwartz had not been shown in argument or in representations advanced by
Respondent to be related to any matter under investigation or in question in the
current proceedings, I granted the petition to revoke said subpena. In view of
the fact that Respondent stated it intended to file a request to the Board for
special permission to appeal from my rulings directly to the Board, I consider
Respondent has requested that the petitions to revoke and my rulings thereon
shall become part of the official record and have accordingly preserved the
record.
On March 14, 1951, 15 days after the rulings on the petitions to revoke the
subpenas were made, Respondent telegraphed the Board that the Trial Examiner
had refused subpenas for Schwartz and for records of investigation of the case
made by the Regional Office. The Board replied that it appeared the Trial
Examiner had granted a motion to revoke subpena and if Respondent was seeking
special permission to appeal from a ruling of the Trial Examiner, the basis of
the request must be set forth with particularity and served upon all parties, and
that if permission for Schwartz to testify was being sought, a request should be
made upon the General Counsel.
On March 15, 1951, Respondent stated it did not intend to take any further
action with respect to a direct appeal or procuring special permission thereafter
and rested its case.
A subpena issued to Respondent and directed to and served upon the Union
called for the production of all records, rosters, lists, and documents showing its
members who are or were employees of Respondent from August 17 to 21, 1950,
and all correspondence and other documents or copies thereof between Respond-
ent and the Union.
The Union turned over to Respondent membership application and authoriza-
tion cards allegedly signed by all of the 11 employees mentioned in the complaint
and copies or originals of all correspondence between it and Respondent, but on
February 27, 1951, objected to producing records, rosters, lists, and documents,
if any, showing its members who are or were employees of Respondent from
August 17 to 21, 1950. Respondent asserted such records, rosters, lists, and
documents were material in connection with its intention to show that the Union
did not represent a majority of the Respondent's drivers, with its desire to show
that there have been meetings held and the time of the meetings and the things
1522 DECISIONS OF NATIONAL' LABOR 'RELATIONS BOARD
said and so forth, and its wish to get some evidence respecting the allegation that
it had continually refused to bargain with the Union. It contended that the Trial
Examiner should require the Union to produce same. I reserved action or'
ruling upon this contention until such time as the question of the materiality
of the records, rosters, lists, and documents in question might become clearer.
On the last day of the hearing, after the subjects of the signing of union'
application and authorization cards, of majority representation, union meetings-
and what transpired therein, and the allegation of a refusal to bargain had been
thoroughly explored through the testimony of many witnesses, Respondent re-
newed its request concerning the production of the records in question and £
denied the request.' On the fourth day of the hearing, March 2, 1951, the Re-
spondent objected to my limiting the cross-examination of witness James T.
Morgan. Morgan's testimony in direct examination in response to 159 questions.
asked by the General Counsel has largely been in substantiation of certain facts
that had previously been developed through portions of the testimony of U. J.
Kirby, Richard Cain, and John L. Sullivan respecting drivers signing union ap-
plication and authorization cards, paying initiation dues, going to the union hall,
joining the Union, statements alleged to have been made by Sam and Vincent
Paciera, where the drivers drove trucks, the time they were expected to report
and usually reported for work, the instructions they received and the time they
were received, the customary time of arrival of Sam and Vincent Paciera at
Respondent's plant, time off, the number of trucks in operation, the presence of
Respondent's nontruck driver employees in the vicinity of where union-applica-
tion cards were passed out and the matter of joining the Union was discussed,
the time the drivers returned to the plant aftel having been at the union hall
on August 18, what was said thereafter, what the drivers had been told by union
organizer and the requests for letters of recommendation. At a time when
Respondent had asked Morgan 128 questions in cross-examination, directed,
among other subjects, to such matter of no or doubtful materiality as for whom-
he was at present working, whom he worked for before that and for how long„
whether it was not strange that he saw fit to go back to work for this awful
cruel employer, the time each of the persons named in the complaint may have
signed authorization or application cards, where they were signed, the order in
which they were signed, whether sales talks had to be given in order to procure
signatures, Morgan's acquaintance with union officials before signing, accidents
in which he might have been involved, and whether Respondent was insured, I
stated to counsel for Respondent that in the exercise of my discretion I would
allow him 11 more minutes to complete the cross-examination of the witness and
suggested to him that if he had anything of importance to ask, he should come
to it. Thereafter Respondent's counsel had opportunity to ask 69 more ques-
tions of the witness in cross-examination and 92 questions (not confined to mat-
ters b ought out in redirect, which following a time restriction of 8 minutes im-
posed by me, the General Counsel limited to 8 questions), in recross-examination.
Quantitatively, the total number of interrogations made of Morgan was, approxi-
mately 167 by the General Counsel and approximately 289 by counsel for Re-
spondent. The reason impelling me to restrict both counsel in their examination,
of this witness under my authority to regulate the course of the hearing 5 was a
Cf Paul Uhlich & Co , Inc., 26 NLRB 679, supra 681, footnote 1 (2) "Union records are
generally of a confidential nature and their production ought not lightly to be required over
the Union's objections."
Administrative Procedure Act, 60 Stat. 237, 5 USC. 1001 et seq Section 7 (b) (5).
GULF COAST OIL COMPANY 1523
belief I should provide against the continuation of the introduction of irrelevant,
immaterial, and unduly repetitious evidence.'
During his testimony on February 28, Manny Moore, the Union's president and
business manager, was observed by counsel to be referring to or to be reading
from a statement. He had previously testified that he had a telephone con-
versation with Sam Paciera, Respondent's president, about 11 to 12 o'clock on
August 18. When asked if the fact that the charge was date stamped at 4: 45
p. in. August 18, 1950, refreshed his mind as to about what time he called Paciera,
Moore answered, "Just like my statement said, I had been trying'to call Mr.
Paciera since 11: 00 o'clock, and I finally caught him at 3: 00." Thereupon Re-
spondent called for the statement and I ruled its counsel might see the portion
of the statement the witness said refreshed his recollection regarding the time
of the telephone conversation. Upon being handed the statement, counsel for
Respondent thereafter offered and introduced the statement. Upon objection of
the General Counsel, I refused the offer and excluded the statement as to any
portion other than that referring to the time of the telephone conversation,
Counsel for Respondent excepted to my ruling and called for the statement for
purpose of attachment to the exception. This request was denied. Thereafter
counsel used the statement for cross-examining Moore on the portion thereof he
was permitted to see. Upon counsel's assertion he could not know what portion
of,the statement the witness had referred to, General Counsel without waiving
any rights to object to the use of the entire statement for the general purpose.
of cross-examination, expressed his willingness to allow counsel for Respondent,
to look over the entire affidavit and I ordered he might do so. Thereupon the.
cross-examination of the witness was suspended. On March 2, cross-examina-
tion of Moore was resumed and upon the witness being interrogated with respect
to the statement, I ruled that any questions, apart from those relating to the
time of the telephone conversation, based upon knowledge gleaned from Re-
spondent's counsel having read the statement, would be excluded. The latter
then stated he believed the statement, if admitted, would prove that there was,,
in effect, assistance amounting practically to collusion between Schwartz, the.
Board investigator, and Moore to get this man (i. e. Respondent) trapped intq
committing an unfair labor practice, that the entire conduct by Schwartz and
Moore actually smells to high heaven, that Moore conversed with Sam Paciera.
by telephone from the Board's Regional Office, that the conversation is included
in the statement, and that he was going to show by the statement, that Schwartz,
and Moore had been most partial and had practically persecuted Respondent in
an attempt to enable the Union to prevail in the complaint against Respondent.
By way of further offer of proof, counsel for Respondent then offered the state-
ment for attachment to the offer. Upon General Counsel's objection to the Trial
Examiner hearing any offer of proof, I ruled no further offer of proof would be
received on the record, but granted Respondent the opportunity to submit in,
writing an offer of proof in the premises, before the close of the hearing, in
order that Respondent's exception to the ruling might be preserved. On March
15, 1951, Respondent submitted a written offer of proof in a sealed envelope.
marked "Offer of Proof." The envelope was accepted. I hereby order that it
be placed in the files and marked in the record as "Respondent's rejected exhibit
No. 1."
With respect to the question of the admissibility of the statement in evidence,
it is noteworthy that we are not dealing here with a situation where a paper is put
0 60 Stat 237. R2tpra, 5 USC. 1001 et seq. Section 7 (e), See Deena Prgdocts Company,.
93 NLRB 549, footnote 4 -
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into the hands of a witness to refresh his memory but rather with an instance
where witness , of his own accord, unresponsively referred to a statement in his
possession . Upon doing so, he gave testimony that detracted from the apparent
accuracy of his previously expressed recollection . Thus his use of the paper in
question tended detrimentally to affect the weight to be accorded his testimony
and correspondingly, to lend support to Respondent 's contention that it had no
knowledge of any union involvement connected with the morning absence of its
employees , until mid-afternoon . From the viewpoint of trial strategy, there
scarcely seems to have been occasion , apart from purposes of emphasis , for Re-
spondent to have disturbed a denouement so favorable to its contention coming,
as it did, from an adverse and obviously hostile witness . Had General Counsel
placed the paper in Moore 's hand and if after looking at it, the witness had then
given testimony tending to cast doubt upon the truthfulness or validity of Respond-
ent's contention , there might well have been occasion for the Trial Examiner, in
the exercise of some discretion , to allow Respondent , in order to avoid imposition,
to interrogate the witness respecting parts of the statement he had not referred
to for the purposes of determining whether the memorandum was proper for
evoking refreshed memory and testing veracity of the witness , and the truthful-
ness of the entire statement . The paper was not independent evidence for any
party' nor automatically admissible in evidence. Just how much of a document
may be examined by the opponent depends on the circumstances of each case.' In
my opinion the circumstances of this case did not require allowing Respondent to
examine the document or after he had been shown it by the General Counsel, per-
mitting him to cross -examine the witness respecting portions he had not used to
refresh recollection.
With respect to the offer of proof, as appears above , Respondent asserted he
believed the document would support claims reflecting on the integrity or the
impartiality of an employee of the Board . At most the assertions amounted to
no more than innuendos in no way overcoming the presumption of regularity
which accompanies acts of Federal officials .9
Fourteen pages of the official report of proceedings on February 28 and March
2, 1951, are in greater part reflective of statements and arguments of counsel and
rulings of the Trial Examiner respecting the paper in question and its admissi-
bility in evidence . I am of the opinion that counsel for Respondent failed to
advance sufficient expectation of proof of any facts material to the issues and that
to have permitted an even more protracted discussion of what apparently would
have been a repetition of assertions under the guise of a more formal offer of
proof would have merely needlessly encumbered the record.
By motion received March 28, 1951, the General Counsel moved to offer in
evidence the authorization cards of witnesses David Brewer and T. L. Kyzar.
On the same day, I notified the parties, by telegram , that objections to this
motion might be made on or before April 9, 1951; no seasonable objections to the
General Counsel 's motion having been filed , I hereby allow same.
There was conflicting evidence as to when various truck drivers signed appli-
cation cards . The contention of the General Counsel seems to be that Brewer,
Kyzar , and others signed cards in July 1950 as well as on August 17 and that,
accordingly , it could be inferred that in a small plant such as Respondent's,
Respondent had knowledge of its employees ' activities at and before the time it is
alleged they were discharged . On the other hand , it is apparently the position
'' McKenna v. Fielding, 272 Mass 341 , 344, 172 N. E 224, 225 (1, 2).
Wigmore , Evidence ( 2 Ed) Sec. 762 , par. 2.
e United States v. Chemical Foundation , 272 U. $. 1, 14-15; Bradley Lumber Co v.
N. L. R. B. 84 F. 2d 97, 100 ( C. A. 5) certiorari denied 299 U. S. 559.
GULF COAST OIL COMPANY 1525
of Respondent (who did not concede the cards were signed by the employees
whose names they bear, and contends that if they were so signed they were signed
under coercion) that if the cards were signed by the drivers whose names appear
thereon, they were all signed on the morning of August 18, 1951, that they were
previously dated, and consequently the fact of their being signed could not pos-
sibly have been known to Respondent. It appears to me that the failure actually
to offer the identified cards was due to inadvertence and consequently I am hereby
ordering that the record be reopened for the sole purpose of admitting the photo-
static copies of the two cards, and am ordering them marked as General Counsel's
Exhibits 12f and 12j, respectively.
Various rulings on the admissibility of evidence, to which the parties specifi-
cally excepted, as well as rulings wherein automatic exceptions were allowed, as
announced in the Trial Examiner's opening statement, appear in the record and
require no discussion herein.
Rulings and the reasons or basis for the action I have taken upon such matters,
and motions relating thereto, as the involvement of Gulf Coast Transportation of
Louisiana with Respondent Gulf Coast Oil Company ; Respondent's denial it was
engaged in commerce within the meaning of the Act at the time of the filing of its
answer ; Respondent's denial that employees named in the complaint constituted
a unit appropriate for the purpose of collective bargaining within the meaning
of Section 9 (b) of the Act; Respondent's denial that a majority of its employees
in any appropriate unit had designated the Union as its bargaining agent or that
the Union has been the exclusive bargaining representative of such employees;
Respondent's contention that because no copy of the charge had been served upon
it, Respondent may not be held liable for the commission of any unfair labor
practices ; and the Respondent's averment that the Union was not in compliance
with the requirements of Section 9 (f), (g), and (h) of the Act, will be made and
disclosed in the findings and conclusions appearing below.
The General Counsel's motion to conform the pleadings to the proof in matters
pertaining to dates, the spelling of names, and nonsubstantive matters was
allowed.
The case was argued by the General Counsel. A voluminous brief was received
from Respondent on April 16, 1951. Both argument and brief have been of
assistance to the Trial Examiner in the performance of his task of recognizing
the issues, of determining the reliability, probativeness, and substantiality
of evidence and of arriving at findings and conclusions and setting forth the
reasons or basis therefor.
There having been no evidence to identify persons who may have been involved
in the incident, I hereby allow the General Coounsel's motion, taken under
advisement during the course of the hearing on March 13, 1951, to strike out
all testimony respecting individuals hollering at a driver hired by Respondent
on August 18, 1950, that a strike was going on and that he should not report
to get the truck the following day.
Upon the entire Iecord in the case and from my observation of the witnesses,
I make the following
FINDINGS or FACT
1. THE BUSINESS OF THE RESPONDENT
A. Gulf Coast Oil Company
The Respondent is a corporation organized under the laws of the State of
Delaware Jn July 1949 and authorized to do business in the State of Louisiana,
with principal offices at New Orleans, Louisiana. It is engaged in the bulk
086209-52-vol. 97-97
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distribution and retail sale of petroleum products in Louisiana, Mississippi, and,
Alabama and owns and operates gasoline tank trucks for the transportation of -
gasoline,an-d oil to retail service stations in those three States. During the
calendar year 1950 (which period is representative of all times material herein),
Respondent purchased petroleum products of a value in excess of $200,000, -
substantially all of which was purchased within the State of Louisiana. During
the same period, Respondent distributed and sold petroleum products of a
value in excess of $250,000, approximately 15 percent of which was directly
transported and sold outside the State of Louisiana.
Since January 1, 1951, and continuing, Respondent has purchased petroleum
products of approximately the same pro rata monthly volume and value as
those purchased, during the year 1950 and has sold and has caused to be trans-
ported and distributed , petroleum products of substantially the same pro rata
monthly volume and value as those distributed during the year 1950, approx-
imately the same proportional percentage of which was distributed outside the
State of Louisiana, with, through, and by the utilization of Gulf Coast Transpor-
tation Company of Louisiana, Inc.
, Respondent admits the above facts with respect to its business in the year
1950 and its contention that it has not engaged in commerce within the meaning
of the Act at the time of filing its answer is rejected. I find that at all
times material herein Respondent has been engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act, and that it would effectuate
the policies of the Act for the Board to exercise jurisdiction herein.
B. Relationship between Respondent and Gulf Coast Transportation Company
of Louisiana, Inc.
Respondent and Gulf Coast Transportation Company of Louisiang, Inc.,
occupy the same office at 3331 St. Charles Avenue, New Orleans. Sam Paciera
is president and his nephew, Vincent Paciera, is vice president and treasurer
of both corporations. The four stockholders of each corporation are Sam Pac-
iera, Vincent Paciera, Josephine Schillesci Paciera, and Lena Paciera Romaguera,
respectively mother and sister of Vincent Paciera. The date of incorporation
of the Transportation Company was not established.10
On January 1, 1951, Respondent sold all of its trucks to the Transportation
Company and they were thereafter used by the latter for the purpose of deliver-
ing petroleum products to substantially the same service stations in Louisiana,
Alabama, and Mississippi as those to which Respondent had previously delivered
such products. The commodities delivered by the Transportation Company had
been purchased and sold by Respondent. The truck drivers employed by the
Transportation Company from January 1, 1950, were substantially the same
persons who had worked as drivers for Respondent during and prior to December
1950. They continued to receive instructions, Orders, and directions from Sam
and Vincent Paciera in the same manner as before and after August 17, 1950.
On this state of facts it is clear that- the stockholders and incorporators of
Respondent and the stockholders and incorporators of the Transportation Com-
pany are the identical members of the same family and that, as stockholders
and incorporators of the Transportation Company, they have succeeded to the
rights and obligations they had with respect to the transportation aspect of
Respondent's business, as stockholders and incorporators of Respondent, and
10 At one point Vincent Paclera testified that "the Louisiana corporation had already
been formed about a year or so prior to this date"-referring to the time of its purchase of
Respondent's trucks. At another point be testified the Transportation Company had come
into operation since August 17, 1950. - - -
GULF COAST OIL COMPANY 1527
I find that the affairs of both Respondent .and the Transportation Company,
which on January 1, 1951, "bought into" the charge filed August 18, 1950, and
served on Sam Paciera, the president and active manager of both corporations,
are so interrelated as to make both corporations jointly and severally responsible
for such unfair labor practices as might be found to be involved in this pro-
ceeding as to render Gulf Coast Transportation Company of Louisiana, Inc.,
equally amenable with Respondent to the enforcement of a remedial order'"
Gulf Coast Transportation Company of Louisiana, Inc., contended in withdraw
ing from the hearing, that to compel it to participate in the proceedings would
have amounted to a denial of due process of law by reason of the fact that it was
given no notice in the form of a statutory complaint or otherwise, that it was
being charged with violating the Act. I find no merit in this contention. Even
assuming, arguendo, that the act of serving a copy of the motion to amend the
complaint signed by the General Counsel and not by the Regional Director upon
the Transportation Company on March 2, 1951, was not legally sufficient to
constitute a giving of notice in the form of a statutory complaint that it was
being charged with a violation of the Act, the additional circumstances and
following considerations lead me to the conclusion that the Transportation Com-
pany cannot validly claim that it was denied due process and the opportunity for
a fair hearing :2
1. The relationship between Gulf Coast Oil Company and Gulf Coast Trans-
portation Company of Louisiana, Inc.
2. The responsibilities of the respective Companies for remedying unfair labor
practices they might be found to have been engaged in.
3. The allowance of a period of 10 days from March 2, 1951, within which the
Transportation Company might file an answer.
4. The provision of an opportunity for the Transportation Company to offer
evidence upon the resumption of the hearing on March 13, 1951, 11 days after
the filing of the motion to amend.
5. The full litigation of -allegations affecting the Transportation Company,
on the dates between February 27, when the General Counsel announced his
intention to amend the complaint so as to cite Gulf Coast Transportation Com-
pany of Louisiana as a successor corporation to Gulf Coast Oil Company, in
the function of engaging in the transportation and distribution of petroleum
products, on the basis that any order of the Board should be directed to the suc-
cessors and assigns of the Respondent.
See Hopwood Retinning Co., Inc., 98 F. 2d 97 and 104 F. 2d 302 (C. A. 2).
C. Variance between the charge and the complaint
The term "charge" refers to a document filed by a private party to initiate
a Board unfair labor practice proceeding. The Supreme Court has said a charge
"merely sets in motion the machinery of inquiry . . . (and) does not even serve
the purpose of a pleading." is
The Board has concluded that the primary function of a charge is to enable
it to "enter intelligently upon the exercise of its exploratory powers" 14 and
to set in motion the Board's investigation, and that any other interpretation
`'would emasculate the Board's long recognized investigatory power and would
put the onus of investigation on private parties, a situation hardly consistent
11 Cf. Regal Knitwear Company v. N. L. R B., 324 U . S. 9 ; Walling v. Reuter Co , 321
U. S. 67.
18 Cf. The Alexander Milburn Company, 78 NLRB 747.
18 N. L . R. B. v. Indiana and Michigan Electric Company, 318 U. S. 9, 18.
14 Consumers Power Company v. N. L. R. B., 113 F. 2d 38 (C. A. 6).
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the public nature of the Act and the agency created to administer it."
Prior to July 1, 1949, Sam Paciera and his brother Anthony Paciera 1a did
business under the trade name "Gulf Coast Oil Company." On July 1, 1949,
the business was. incorporated with the officers and stockholders named above
in section B of this part I of findings of fact. I find the Respondent thereafter
carried on the business previously conducted by Sam Paciera, either alone or
with 'Anthony Paciera, and that the corporate Respondent Gulf Coasiz Oil Co.
was a successor to the unincorporated Gulf Coast Oil Company at all times
material herein.
Mrs. B. D. Kosho, a secretary who had been employed continually by Respond-
ent since its incorporation and prior to that time by Gulf Coast Oil Co. when
it was being conducted by Sam Paciera under the trade name Gulf Coast Oil
Company, signed the return registered receipt for the copy of the charge served
on Gulf Coast Oil Company and delivered August 22, 1950. There is no question
and it is not denied that the charge came to the attention of Sam Paciera. To
paraphrase Chief Justice Clark of the Second Circuit Court of Appeals, "If
Paciera had any doubts about who was being charged with unfair labor practices
he knew the address of the office where a practical man could have those doubts
resolved.""
It does not appear that Respondent was in any way misled or prejudiced. In
any event, even if the General Counsel erroneously failed to comply with the
Rules and Regulations of the Board, the error was harmless. The substantial
rights of Respondent were not affected. and any irregularity should be dis-
regarded 18
In view of these circumstances and principles, I rule that Respondent's con-
tention that the complaint should be dismissed because the charge named Sam
Paciera d/b/a Gulf Coast Oil Company rather than Gulf Coast Oil Company, is
without merit.
D. The Union's eomplianer,
Respondent says that the complaint should be dismissed because it does not
appear that the Union is in compliance with the requirements of Secton 9 (f),
(g), and (h) of the Act and argues in substance that such compliance must be
affirmatively shown. The determination of whether the officers of a labor organ-
ization have filed the required "non-Communist" affidavits and the organization
itself has filed the required financial-and other reports is not a matter of pleading
and proof at a hearing before the Trial Examiner but is an administrative
matter to be determined by the Board itself. A Trial Examiner may therefore
presume that before a complaint has issued there has been such administrative
action taken as will determine that the labor organization involved is fully in
compliance with Section 9 (f), (g), and (h) of the Act.1'
15 Cathey Lumber Company, 86 NLRB 157, enfd. 185 F. 2d 1021 (C. A. 5) ; Rex Manufac-
turing Company, Inc., 86 NLRB 470.
1e Anthony Paciera died in January 1948. He was the husband of Josephine Schillesci
Paciera, the father of Lena Paciera Romaguera and Vincent Paciera, tb,en a student, and
for a period of approximately 18 months prior to July 1, 1949, Sam Paciera was sole
individual actually in charge of the business of the then Gulf Coast 011 Company.
17 N. L. R. B, v. Suburban Lumber Company, 121 F. 2d 829, 834 (C. A. 2) where the
court stated, in discussing whether delivery of an unsigned and undated paper Constituted
proper service, "The issue is rather should we give a strict or a liberal construttibn to
these services statutes . . . . We prefer to be practical. . . . If respondent' s counsel had
any doubts about the paper served on him be knew the address of the office where a practi-
cal man could have those doubts resolved."
'8 See Union Starch and Refining Co. v. N. L. R. B., 186 F. 2d 1008, 1013 (C. A. 7).
19 Paula Valley Mailing Company, 82 NLRB 1266; Lion Oil Company, 76 NLRB 585.
GULF COAST OIL COMPANY 1529
I find no merit in Repondent's contention that the complaint must be dismissed
because the Union has not been affirmatively shown to have been in compliance
with Section 9 (f), (g), and (h) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, General Truck Drivers, Warehousemen and Helpers, Local
270, AFL, is a labor organization within the meaning of Section 2 (5) of the Act,
admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit and representation of a majority therein
The complaint alleges that all employees classified as truck drivers and
employed at Respondent's New Orleans, Louisiana, place of business, excluding
office and clerical personnel, service station operators, and supervisors as defined
in the Act, and all other employees of Respondent, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act.
The Respondent denied the appropriateness of the unit and contended that in
addition to Respondent's truck dricers, the unit should include mechanics and
maintenance men working for Respondent as of about August 17,1950. Respond-
ent employed 11 truck drivers who worked under the supervision of Sam Paciera.
In addition Respondent employed Jack De Corte, an automotive mechanic ; Ray
B. Pitts, a mechanic's helper ; Maxine Melinie and his son-in-law, Charles
Richard, service station attendants ; and Seville Thompson. an air-compressor
and gasoline pump maintenance man. Ten truck drivers transported petroleum
products to various points in Louisiana, Mississippi , and Alabama, and one
delivered in New Orleans only. The qualifications for mechanics were expe-
rience and knowledge with respect to the repair of trucks and equipment.
The qualifications for truck drivers were experience in driving gasoline
trailer trucks, knowledge of the highways of Louisiana, Mississippi, and Alabama,
and knowledge of how to make logs.
The usual working hours of the automotive mechanics were from 6: 30 a. in.
to 3 p. in. The truck drivers were paid on the basis of a 60-hour working week.
They loaded their vehicles, at a location away from Respondent's plant, with
products purchased by Respondent from Standard Oil Company. Then they
delivered the products to various retail outlets. When trucks become disabled
the mechanic or his helper would frequently drive out onto the road and bring
the trucks back to the plant. The mechanics did not regularly drive trucks to
deliver gasoline. The gasoline pump maintenance man occasionally helped re-
pair the. trucks and very seldom drove a truck to distribute gasoline. Respond-
ent bases its argument upon the theory that the trucks could not operate
without being serviced and kept in repair by the mechanics, and that accordingly
the work they performed is an essential integral part of the work performed
by the truck drivers.
Under Section 9 (b) of the Act, the Board is vested with a broad discretion
to decide what unit is appropriate to "assure to employees the fullest freedom
in exercising the rights guaranteed by this Act, . . ." subject to specific restric-
tions as to the treatment of professional employees , guards, and craft groups.
Guided by this general statement of statutory purposes and standards, the
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board, over a period of years, has formulated certain criteria which are applicable
to the determination of questions concerning the appropriate bargaining unit.
Among these criteria are the factors of similarity of duties, skills, interests, and
working conditions of employees and the desires of employees. Although a unit
excluding maintenance men may lack the inherent cohesiveness of a unit limited
to truck drivers, it -is clear that, as a group composed solely of truck drivers, the
members possess interests in common, distinct from those of the mechanical
employees, which are sufficient to warrant their original establishment in a
separate unit. It is equally clear that the duties, skills, interests, and working
conditions of the truck drivers are, in broad outline, dissimilar from those of
the mechanics and further that the latter group did not desire to be included in
the unit. Accordingly, and in view of the nature of Respondent's operations, I
find that at all times material herein, the above-mentioned unit constituted
an appropriate unit within the meaning of the Act ; and that said unit could
insure to employees of Respondent the full benefit of - their rights to self-
organization and collective bargaining and otherwise make effective the purposes
of the Act.
As will appear in greater detail below, on or before August 18, 1950, the 11
employees named in the complaint, comprising all of Respondent's truck drivers,
.had signed cards authorizing the Union to represent them. It is apparently
the contention of Respondent that the Union did not represent a majority for
the reason that 'some of the employees were coerced into signing the cards.
The authorization cards were introduced in evidence. There was no substantial
testimony that any of the 11 signed the cards involuntarily or under coercion.
The evidence sustained the General Counsel's burden of proving a prima facie
showing of majority.
Accordingly, I find Respondent's denial that a majority of its employees in any
appropriate unit had designated the Union as its bargaining agent or that the
Union has been the exclusive bargaining representative of such employees at
any time is unsupported. I find that at such times on August 18, 1950, as
a majority of the truck drivers were or remained employees of Respondent,20
the Union was the duly designated bargaining representative of a majority
of the employees of the aforesaid appropriate unit and that, pursuant to Section
9 (a) of the Act, it was the exclusive representative of all employees in said
unit for the purposes of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment.
B. Merits
Having forged through the morasses and brambles of jurisdiction and pro-
cedure we may now course the more inviting slopes of fact.
1. Sequence of events
Commencing about the middle of July 1950 a movement to organize the 11
truck drivers named in the complaint was instituted. The leaders in this
activity were W. C. Brewer, Kirby, Slaven, and Morgan, the last of whom became
particularly interested upon his return to Respondent's employ August 9, 1950,
"after having worked elsewhere since the latter part of 1949. From time to time
from about July 26, 1950, until August 18, 1951, 10 of the men had- signed union-
20 The questions its to whether the truck drivers were replaced and lost their status as
employees remain for subsequent discussion and determination. ,
GULF COAST OIL COMPANY 1531
authorization cards and all 11 had signed acceptance of union membership and
authorization cards by the morning of August 18 . On August 17 Morgan, on
a day off duty , with some assistance from other employees , saw all or nearly
all of the truck drivers ( some of them at their homes late at night ) and procured
their signatures to the second set of cards which authorized the Union to repre-
sent them and on that date or early on the following morning collected initiation
dues for all 11.
Instead of reporting for work at the usual time of 7 a. m. on August 18, all the
truck drivers went to the union hall, where benefits anticipated to be derived
from organization were discussed , the initiation fees were turned over, the
cards delivered , applications for insurance were made , booklets were issued,
and admission into the Union was formalized . They then returned to Respond-
ent's plant Upon conflicting evidence , I find the time of return was between
9: 45a.m.and 10 : 15a.m.
Respondent owned 8 gasoline trucks which were operated by the 11 drivers,
7 days weekly. Those trucks were kept in repair and serviced by 2 mechanics.
The work schedule was so arranged that each driver would work approximately
60 hours a week. Frequently a man would work as many as 12 or more hours
a day. - When it appeared that a driver had reached or was approaching the
point of working 60 hours in a given week , he would be given a day off. De-
pending upon the amount of time worked, each driver could expect to receive
1 or 2 days off in every 7 days. Upon his return from a day's trip a driver
would usually receive instructions respecting his trip for the following day.
If no orders to go out the following day were given an individual driver, he
still was required to report to the plant the following morning ( except upon
infrequent occasions when he had been given permission not to report) and
await further orders to work or permission to take the rest of the day off. On
some occasions , drivers were informed that because of a special late scheduling of
trips, they would not be required to report for duty the following day until a
stated hour . Because of the requirements of the laws of the State of Mississippi
that no loaded gasoline trucks could travel on its highways after 9 p. m. and no
such trucks could be unloaded after that time, it was necessary that trucks de-
livering products to distant points in that State should leave New Orleans early
in the day . The actual time of departure of the trucks from Respondent's
plant each morning was variable , depending upon such factors as the time their
servicing for the road by the mechanics was completed , the length of time re-
quired in the event drivers needed special or final instructions , and the occa-
sions when they were notified to make late starts. As a usual custom , however,
the trucks left the plant about 7: 30 a. m. although it not infrequently did hap-
pen that one or more would leave before or after that hour . Sam Paciera ar-
rived at the plant at 8 a. m. August 18, and observed all Respondent 's trucks
parked in the yard, with the exception of one loaded with 4,695 gallons of gaso-
line he knew was broken down on the highway in Poplarville, Louisiana, about
85 miles from New Orleans . Noting the absence of all the truck drivers, he
and Vincent Paciera decided to wait a while to see if they might arrive. In
the yard were 2 applicants for employment , Lindsay Martin and Irving Ohmer,
who had on the previous day been advised by Vincent Paciera ( who had been
informed by'Rodney Slaven he was quitting at the end of his "run " on August
17) to come to the plant that morning to be interviewed for possible employment
by Sam Paciera . Sam Paciera asked service station attendant Charles Richard,
who had come on duty- at 6 a. m., if he had seen any of the truck drivers and
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Richard told him that he had not" The Pacieras then made requests of Seville
Thompson, maintenance man,'Jack De Corte, mechanic , and of a clerk at Re-
spondent's main office, concerning the possible whereabouts of the drivers. All
informed them they had not seen them or did not know where the drivers were.
Sam Paciera then walked to a respondent-owned house occupied by W. C.
Brewer, where some of the drivers were known occasionally to repair for coffee
before starting out on their day's drive. Neither Brewer, his car, nor any of
the drivers were there. Paciera then went into the rear part of Respondent's
yard and finished the servicing of the trucks with De Corte and Pitts. By the
time this was done it was a few minutes after 9 o'clock, and on Sam's instruc-
tions, Vincent telephoned the Louisiana State Unemployment Bureau and the
office of Jefferson Oil Company to procure truck drivers. Ohmer and- Martin
were immediately hired. Following in the order in which they were hired were
George Sticker, Charles Spriggs, and Harold Miller. Ohmer started duty at
9: 30 a. in. and left the plant driving Respondent's truck No. 5 about 10: 30 a. in.
He was followed by Martin and Sticker within a very few minutes. Before the
"old" drivers returned, Spriggs had been ordered to stand by to accompany De
Corte and Pitts to Poplarville to drive back- the disabled truck as soon as the
mechanics were-able to install a repaired axle. Miller, who arrived at the
plant about 9: 15 a. in.,. went out driving the "city" truck about 9: 30 a. in.
Spriggs was expected upon his return from Poplarville to take the trip to Baton
Rouge that Byrd had on the evening of August 17 previously been ordered to
make, starting at 3 p. in.
During the period between the time Vincent Paciera telephoned to the unem-
ployment bureau and Jefferson Oil Company and the time Martin and Sticker
left driving trucks, he remained in an office at the filling station near the front
of the yard and Sam Paciera stayed in the rear of the premises where the trucks
were parked. As applicants for employment appeared, they were sent by
Vincent to Sam who did the hiring. In addition to the five "new" employees
mentioned above, three more applicants for work reported to Vincent Paciera,
to wit : Kenneth Cauffman, Adam Guilbeau, and Edward B. Conner. It is
not clear whether these three reported before or after the men returned from
the union hall or before or after Vincent Paciera knew they had returned.
There was some delay after the returning "old" employees arrived in the
vicinity of the plant before any of them spoke to Vincent. In any event,
Cauffman, Guilbeau, and Conner were sent "out back" to see Sam Paciera and
I find that he interviewed and hired them at some time before Sam himself
knew the "old" employees had put in an appearance. Upon considering the
minimum requirements of the retail outlets for that day, Paciera came to the con-
clusion it was not necessary to send out the remaining three mobile trucks on
the 18th and accordingly told Cauffman, Guilbeau, and Conner to report for
duty the next morning . On the following day all eight drivers hired on the
18th drove trucks. In consideration of the fact that none of the -eight men
employed would for several days begin to approach the time when he would
have worked 60 hours a week and become entitled to a day off , Sam Paciera
hired no more employees on August 18 but did instruct Vincent to place a help-
21 Richard testified that either Morgan or Kirby had told him early on the morning of
the 18th that "they was going to join the union ," that they "didn't want them [ Sam and
Vincent Paciera] to know" and requested him not to tell them , and that consequently he did
not tell Paciera he had seen them . It also appears from Richard 's testimony that Ray
Pitts knew where the truck drivers were or what they were doing. Pitts testified be could
not say whether or not he saw any of the drivers around the plant or yard that morning
and that upon inquiry from Sam Paciera about 9 o 'clock he replied he did not know where
the drivers were.
GULF COAST OIL COMPANY ` 1533
wanted advertisement in a New Orleans newspaper. These instructions were
carried out by a clerk, and the advertisement was actually placed about noon
on August 18.
Within a half-hour after Miller, Ohmer, Martin, and Sticker drove the four
trucks away from the plants, Morgan came into the office where Vincent Paciera
was working and said, "I don't suppose any of us are taking our trucks out
today?" Paciera replied, "I don't suppose you are."
Morgan then telephoned Manny Moore, previously identified as president and
business manager of the union, saying that all of the members had been fired.
Moore advised Morgan to ask for letters of recommendation for all of the
drivers. At about 11 a. in. Sam Pjtciera was called from the rear portion
of the yard to answer a telephone call in the office where Vincent had been
working. He then saw for the first time that morning the "old" drivers who
were then congregated under the canopy in front of the service station. Then
Morgan walked up to the door of the service station office and asked Sam Paciera
if he would give the 11 drivers letters of recommendation. Paciera agreed
to give the recommendations and each man received a letter upon being paid off.
At 3 p. m. the same day Sam Paciera received a telephone call from Moore
who asserted the drivers had been fired that morning aqd requested that they
be reemployed 2' Paciera replied that the men did not appear for work and
he considered they had quit. Moore repeated that the employees had been
fired and Paciera had refused to reinstate them. Paciera's response was that
he had replaced the men before they appeared at the plant. Moore stated
he wanted to make an appointment with Paciera• "to settle the dispute." Paciera
asked Moore what he meant by "dispute" and insisted the men had quit. Moore
was equally insistent the men had been discharged and the conversation ended
by Moore saying Paciera was forcing him to file charges against Respondent
for refusing to meet with the Union and to put the men back to work and Paciera
stating he was going to consult his lawyer before talking to Moore any further.
By a letter dated August 17, 1950, bearing New Orleans post office cancella-
tion stamps dated August 18 and 19 and received by Respondent on August 19,
1950,23 the Union advised Respondent it was the duly authorized representative
of its employees for the purposes of collective bargaining and requested an
appointment. On August 21, 1950, Respondent replied it desired the matter
to take its course with the Board.
David M. Brewer, who had worked for Respondent
reemployed on September 16, 1950.
Byrd had worked for Respondent from time
His last employment started on May 30, 1950.
on January 21, 1951.
Kyzar was reemployed by
off a few months. He was
18, 1950.
for about 2 years, was
to time over a period of years.
He was rehired by Respondent
Respondent early in 1950, after having been laid
reemployed as "city truck driver" on September
' 2. Contentions of the parties
The General Counsel stated he conceded that Respondent had the right to
replace any men who engaged in concerted activities which involved absenting
themselves from work. He makes no contention that the drivers should not
22 I consider that this was an unconditional offer to return , made for and in behalf of
all employees who had absented themselves from work, even though insofar as the evidence
tends to show , no more than four drivers personally requested'reinstatement either before
or after the time of Moore's offer.
23 A copy of this letter was stamped received at the Board 's Regional Office at 4: 40
p m. August , 18,;1950.
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have reported for work earlier on the morning of August 18 than they did report..
He raises a first question'as to whether Respondent had in fact replaced a
majority or all the employees as of the time they returned from the union hall.
He contends the record establishes the fact of the Paciera's knowledge of the
drivers' union activities and that by inference and through circumstantial evi-
dence it should be found Respondent knew the employees were at the union hall
when they did not report for work. He argues that assuming Respondent did
not know where the men were, they actually appeared for work and that sus-
pecting where they were, Sam Paciera thereafter refused to allow the men to go
to work thereby discharging them, and that Paciera's statement that his assump-
tion the men had quit was strengthened by their requesting letters of recom-
mendation is unbelievable. The General Counsel asserts that the only possible
conclusion to be drawn is that Respondent, not by using the words "you are fired"
but by refusing to allow the employees to go to work, did effect their discharge.
He argues that the fact David Brewer who renounced his union interest and
Kyzar who claims to have joined the Union reluctantly and for whom Brewer
interceded, were reemployed, while Morgan and Kirby who also asked for jobs.
were not reemployed, is significant of the fact that Respondent's conduct was
discriminatory. The General Counsel then appears to diverge somewhat from
his concession that Respondent had the right to replace any men who had
engaged in concerted activity which involved absenting themselves from work
and ignoring the fact that the drivers reported for work about 3 hours late,
argues that assuming Respondent suspected they had been engaging in some
sort of legal concerted activity it,had no right to discharge or refuse to reinstate
them. He also suggests that the appearance of the employees in a body at their
place of work was an indication they were ready to go to work and constituted
notice to Respondent that they had been engaged in legal concerted activity and
that therefore Respondent had no right to refuse them work. The General
Counsel argues further that up to the time the 11 drivers returned to the plant,
Respondent had hired only 5 replacements at the most and that the Union still
represented a majority, assuming as he contends Slaven had not resigned the
day before.
I feel constrained to reject most of these contentions and so far as they are
not self-answering or, for purposes of reaching ultimate conclusions, do not
require answering, will outline the grounds of my disagreement.
The Respondent contends that it had no knowledge of union activities prior to
August 18, 1950, and had no knowledge of the whereabouts of its drivers on the
morning of August 18, 1950; that its president.after waiting about 2 hours for
the men to report to work was obliged, due to the exigencies of the business, to
start hiring employees about 9 a. in. thereby discharging the old drivers because
of their breach of contract for employment requiring them to report at 7 a. in.;
that prior to 10: 30 a. in . eight new men were hired, that thereafter the old
drivers returned to the plant about the time four trucks operated by newly hired
employees were leaving and, instead of proceeding to the locality where the
trucks were parked, milled around in front of the service station for some time
before Vincent Paciera was spoken to and in substance agreed with them that
they were through, and that a little later about 11 a. in. they asked Sam Paciera
for letters of recommendation without offering any explanation concerning their
absence and made no objections to any action taken by Respondent during their
absence . Respondent further asserts that at 3 p. in. the union representative
phoned Sam Paciera threatening to charge Respondent with violation of the law
unless he immediately agreed to "get to-gether" with the Union, that Paclera did
not refuse to meet with the Union but merely informed its representative that
GULF COAST OIL COMPANY 1535
he wanted to confer with his attorney , that all of the employees ' actions and
events of the day clearly show that the men were out on an economic strike, and
that Respondent had a right to replace the strikers permanently and was under
no obligation to place them on a preferential hiring list or to recall them.
3. Preliminary conclusions
a. 'Interference , restraint , and coercion
I find there is no testimony supporting the allegations that Respondent (1)
interrogated employees as to their union membership and activities or (2)"
made promises of benefit to employees to persuade them to cease their union
membership and activities . As bearing upon the allegation that Respondent
coerced employees by threatening to cease operating if they did not give up
their union membership and activities , upon the question of Respondent's
knowledge of its employees ' union activities , and upon Respondent 's claimed
opposition to unions , the following is the only direct evidence contained in
the record :
Kirby who had been employed on July 25 , 1950 , and has not been reemployed
since August 18, although he has repeatedly asked to be reinstated , testified
that Sam Paciera walked up to him while he was standing out in front between
the pumps after the drivers had returned from the union hall and said, "Kirby,
you all going .places and seeing people this morning , I reckon ?" and that he
replied "yes."
Sullivan , who was employed by Respondent on July 25 , 1950 , and has not
requested reinstatement , testified that around the first of August 1950 he
overheard employee Whitehead tell Sam Paciera he was figuring on leaving for
a union job and Paciera stated that if Whitehead were looking for a union
job he would have to get other work because there was not going to be any
union on their ( Respondent 's) job , that a union tried to organize Respondent's
employees once before and he would close the door before he would have a Union.
Richard Cain , who entered Respondent's employ on June 28, 1950 , and was
not billed to go out on a trip on August 18, testified he informed Sam Paciera
after his arrival from the union hall that he was ready to go to work and
that Paciera said the men would have to see his lawyer.
Morgan, as appears above , returned to Respondent 's employ on August 9,
1950, after having worked elsewhere since the latter part of 1949. He testified
that either on August 12 or 13 he overheard Slaven ask Vincent Paciera why
Respondent would not pay higher wages and that Vincent replied the boys
were getting enough , that the Union was here and they did not want any union
men, that he overheard the conversation testified to as appears above between
Kirby and Sam Paciera , and that in 1949 he had heard Sam Paciera say more
than one time if the job went union he would shut down.
W. C. Brewer , who had been employed by Respondent for about 4 years
and resided in the respondent -owned house frequented by the drivers for
early morning coffee, testified he made a request to be returned to work but
did not repeat it because Vincent Paciera had told him a repetition of the
request would not do any good.
From my observation of Kirby as a witness I gained the impression that he
is resentful because of Respondent 's unwillingness to employ him since August
18, 1950 , despite his many requests . In the face of Sam Paciera's denial, I
do not credit Kirby's testimony that Paciera indicated he knew the employees
had been seeing and talking to people on the morning of August 18. My
disbelief in this testimony is strengthened by the testimony of be Corte , Charles
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Richard, and Ray Pitts that they either were ignorant of the Whereabouts of
the drivers or did not tell the Pacieras Where they were and the fact that none
of the other old drivers who gave evidence, with the exception of Morgan,
testified to the fact that Paciera gave any indication of any knowledge con-
cerning where they might have been. Indeed, most of the drivers testified
that as far as they knew the Pacieras did not know where they had been. It
seems very probable indeed that the drivers acted with great secrecy, a fact
borne out by Moore's testimony that they were afraid their union activities
might be discovered by management. I am mindful of the fact that in a small
plant such as this it would not be at all unusual for the activities of employees
to come to management's attention but on all the evidence in this case and
in view of the covert character of the drivers' conduct, including the signing
of cards at their homes at night, I believe it has not been proven that either
of the Pacieras knew that the drivers were joining the Union during their
absence on the morning of August 18. - Morgan was an exceedingly disputatious
witness who I am satisfied was ready to testify to anything that occurred to
him which he felt might be harmful to the Respondent. His assertion he
overheard the statement Kirby claims Sam Paciera made does not impress
me as being worthy of belief. As pointed out elsewhere in this Report, the
mere fact that employees absent themselves with or without their employer's
knowledge or consent for purposes of mutual aid and protection does not pro-
tect them against discharge and replacement and their employer cannot be
held guilty of a violation of the Act unless it is established he discharged and
failed to replace them because of opposition to their union activities independ-
ently of their conduct in staying away from work necessary to be performed in
the conduct of the business. Accordingly I would rule, even though it should be
held that Paciera made the remark attributed to him and even though it should
further be held that the remark was proof of Respondent's animosity toward
the Union, that the General Counsel has not established by a preponderence
of the evidence that Respondent discharged and failed to replace the drivers
because of their union activities rather than because of their conduct in
remaining away from work. There is evidence supporting Sam Paciera's
profession of belief that the drivers had quit their jobs. They did not claim
that Respondent had discharged them when he first saw them at about 11
a. in. or protest any action taken against them. They did ask letters of
recommendation. Under these circumstances it is not unreasonable to con-
clude, first, from their failure to appear for work at the usual time, secondly,
from their absence for about 3 hours, and thirdly, from their requests for letters
of recommendation, that Paciera in good faith believed they had quit, a belief
which Moore admits Paciera expressed at the time of the telephone conversation
which took place several hours later.
As stated above I was not favorably impressed with Morgan's desire or ability
to give truthful testimony. Slaven, whose alleged conversation with Vincent
Paciera Morgan claimed he overheard, did not testify, leaving Morgan's testi-
mony uncorroborated. Contrary to Morgan 's testimony that Vincent Paclera
replied, when asked why Respondent would not pay higher wages, that the boys
were getting enough, there is abundant testimony that at about this time the
drivers had been in substance informed that the Respondent intended or hoped
to grant them a $10 weekly raise as soon as a new filling station started in opera-
tion. Apparently to add emphasis to his testimony that at the same time
Vincent Paciera said the boys were getting enough, Morgan added that Paclera
volunteered the Union was here and that they (Respondent ) did not want any
union . Quite clearly this remark,- If made , was a non sequitur to the preceding
GULF COAST OIL COMPANY 1 537
statement and that it should have been uttered at the time claimed by Morgan
is unlikely. Further it is scarcely contended, much less proved, that the "Union
was here" as early as August 12 or 13, and despite the fact that some of the first
set of cards bore dates earlier than August 13, there is no satisfactory proof
that any union activity (assuming that the cards were not predated as testified
to by several witnesses) was known to Respondent at that time. Finally Mor-
gan's testimony that back in 1949 he heard Sam Paciera say more than one time if
the job went union be would shut down, is completely unsupported. Many em-
ployoe witnesses called both by the General Counsel and Respondent testified to
the effect that neither Sam nor Vincent Paciera had ever mentioned a union or
union affairs to them. It is difficult to believe that Sam Paciera should single out
Morgan from among all Respondent's employees as the one person in whom to
confide and to whom to address such a gratuitous remark. In the face of
Paciera's denial and the preponderance of testimony that he did not discuss
union matters with his employees, I find it has not been established by a pre-
ponderance of substantial evidence that Sam Paciera said he would close down
his business if the job went union.
From my observation of Sullivan, I feel he undertook to give truthful testimony
and that he endeavored accurately to relate what he overheard Sam Paciera
tell Whitehead. I reject Respondent's suggestion that he was improperly influ-
enced or coached by the Board field examiner 24 Whitehead was not a witness,
and Sullivan's testimony which was not corrobrated by any other witness was
denied by Paciera. I believe, however, that there was a conversation between
Whitehead and Paciera during the course of which Whitehead told Paciera that
he was contemplating leaving Respondent's employ and taking a job with some
concern where the employees were organized and that in some form of words
Paciera did state that if Whitehead wanted to work for a company whose drivers
were organized he should go elsewhere because there was no union among the
employees at Respondent's plant. A statement of this sort is entirely consistent
with Paciera's assertion that he had no knowledge of any union activities among
Respondent's employees until the afternoon of August 18. I believe that Sullivan
was mistaken in stating that he overheard Paciera say there would be no union,
in the sense that General Counsel would have•it construed, i. e., that he would
not tolerate any union. It is to be borne in mind that Sullivan was not testifying
with regard to anything Paciera said to him but concerning what Paciera said
to another person. Obviously testimony of this nature, while it is not hearsay,
is evidence of a.secondary character and -mustbe closely scrutinized when unsub-
stantiated, before it may be made the basis of a positive finding. There was a
mass of testimony from several sources that no attempt had ever been made to
organize Respondent's employees before August 1950, and I am unable to bring
myself to believe that Sullivan correctly understood Paciera to say that there
had been a previous organizational attempt and that he would cease doing
business rather than continue with unionized employees. I do not find anything
in the testimony of Richard Cain and W. C. Brewer that supports the allegation
of coercion by threats to cease operation of the business if employees did not give
up their union membership and activities. In this record comprising 1,242 pages
there appear the few isolated statements of Kirby, Morgan, and Sullivan (3 of
a& Likewise I find entirely without basis Respondent 's numerous innuendos that the field
examiner engaged in unfair conduct in assisting in the preparation of the charge , in deal-
ing with the Union or Respondent, or in his investigation of the case. Ip my opinion
there is not the slightest foundation on such evidence as was permitted tp be introduced
or in such offer of proof as was allowed to be made, for a charge that the field examiner
persecuted Respondent or displayed any bias or partiality in favor of the Union.
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the 24 witnesses who testified) which, if taken at face value and considered
alone, would tend to show an antagonistic attitude on the part of Respondent
toward the Union and would support a finding that Respondent resorted to threats
and coercion against its employees. But all such statements, even if they were
found to be true, must be taken in their context and the entire record must be
considered in determining whether Respondent engaged in unfair labor practices
and whether there is substantial evidence to support such a finding. On the
basis of all these considerations I conclude that the General Counsel has not
sustained his burden of proving by a preponderance of the credible, reliable,
and substantial evidence that Respondent coerced its employees by threats to
cease operation of the business if they did not,give up their union membership
and activities.
b. The hiring of new employees and the failure to rehire the old employees
The drivers who went to the union hall on the morning of August 1, 1950,
engaged in legitimate concerted activities during their absence from the plant.
But their act in walking out and not returning before the middle of the morning
was not a protected activity regardless of the reason for their conduct. It is no
more a protected activity to stay away from work without request made of or
permission from an employer to be absent, in order to join a union, then to remain
away for any other reason. It must be kept in mind that at the time the em-
ployees failed to work and remained away from the plant, no demand had been
made upon management concerning wages or any other condition of employment
and no bargaining in reference thereto had been undertaken or suggested. In
fact there was no existing labor dispute or controversy of any character.
When the drivers failed to appear on August 18, Respondent was confronted
with two choices : To do nothing in the hope that the men might appear and there-
by run the risk of guessing wrong and not being able to carry on its businesses
for that day at least ; or to take some action to the end that it might be sure to
be able to serve its customers. It made the latter choice. It cannot be said
that in making this decision, Respondent's officers acted in any fashion. other
than might be expected of alert and prudent businessmen or that they engaged
in unfair labor practices. Once Respondent made its decision, it proceeded with
considerable alacrity and was successful in hiring new employees in a relatively
short period of time.
The speed with which Respondent acted, it cannot be gainsaid, may justify the
suspicion that it deliberately planned to get rid of its drivers before they returned
to work and that its conduct was motivated by antiunion considerations. But
suspicions are not proof and on the record considered as a whole there is abundant
evidence that Respondent, faced with an emergency, adopted normal and prac-
tical steps to prosecute its business. Respondent had a right to replace and I
find that it did replace permanently the employees who did not appear for work,
before they returned to the plant or made their presence known to Sam Paciera.
I rule that Respondent was under no obligation to recall those replaced perma-
nently so long as it did not discriminate against them by treating them differently
from other former employees or applicants for employment. I find that Slaven
was not an employee of Respondent on August 18, 1950. I find that the fact of
Respondent hiring only 8 employees % on the morning of August 18 does not indi-
25 I reject General Counsel 's contention that less than eight new employees were hired
on August 18, before the "old " men appeared at the plant or reported to Sam Paciera. As
pointed out elsewhere in this Report, Sam Paciera found that he could get through the
day by using only five drivers. But I am satisfied that eight men were hired on August
GULF COAST OIL COMPANY 1539
'cate that it replaced only 8 of the 10 drivers on that day for the reason already
pointed out, that it would not be until a few days later that a full complement of
11 drivers would be required or could be used. Following August 18, 3 of 10 driv-
ers who I find would have continued to remain in Respondent's employment if
they had not absented themselves that morning, were rehired. For ought that I
have been able to discover as proved in the record, those 3 "old" employees, David
M. Brewer, T. L. Kyzar, and Austin Byrd, were employed to replace 3 of the 11 em-
ployees who were hired on August 18 and by August 21, 1950, and the Respond-
ent has not refused to rehire any of the other 7 who may have applied for work
or may have desired employment at any time that additional vacancies may have
occurred as a result of resignations or discharges of any of the remaining 8 "new"
employees who were hired on August 18 or between that date and August 21.
- C. The alleged refusal to bargain
The main subject of the telephone conversation between Moore and Sam Paciera
on the afternoon of August 18 was whether the drivers had been discharged or
had quit. Moore's desire at that time was to have Respondent take the men
back. A fair inference from what was said at the time is that there was no
specific request or demand on the part of the Union that the Respondent should
immediately commence bargaining out a contract. Rather, the emphasis was
laid upon what the Union considered was Respondent's unfair labor practice in
discharging employees because they had joined the Union and the fact that the
Union was being compelled to file charges for this reason. The charge served
on Respondent on August 22, 1950, contained an allegation that Respondent had
refused to bargain collectively on or about August 17, 1950, and at all times
since. In the meantime Respondent had received, on August 19, a letter from
the Union requesting an appointment. This letter did not specifically request
that Respondent bargain with the Union but the inference is clear that the Union
desired an appointment for bargaining purposes. On August 21, 1950, the day
before the charge was served upon it, Respondent replied to the letter received
on August 19 that it was Respondent's intention that the matter "be processed
through the regular procedure of the National Labor Relations Board."
It is reasonably clear that Moore, in substance, informed Sam Paciera on the
afternoon of August 18, 1950, that the Union claimed to represent a majority of
Respondent's employees in an appropriate unit and that Paciera did not then
raise a question as to the validity of the claim. Rather, he stated after he and
Moore failed to agree as to whether employees had quit or had been fired, that
he, wanted to consult his lawyer. Thereafter there was no attempt by either
the Union or Respondent to arrange any meeting. As has already been found,
the Union was the duly authorized representative of a majority of Respondent's
employees in an appropriate unit at such times as the drivers were both union
members and employees of Respondent. Assuming, arguendo, that Sam Paciera's
statements during the telephone conversation on the afternoon of August 18
constituted a refusal to bargain and that Respondent's subsequent conduct down
to the present time constitutes a continuing refusal to bargain, there arises the
18 and that all so hired did work the following day. General Counsel has argued, and I
recognize the force of his contention, that significance may be attached to the fact that
Respondent did not bring forward all documents bearing upon dates of employment. But
on the strength of positive evidence that eight were employed, as against the mere sug-
gestion that perhaps less than eight were employed, General Counsel has not satisfied me
that eight were not employed.
e^ After August 18 and by August 21, Respondent hired three more drivers, Kibodeaux,
Branch , and Swafford
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question as to whether or not Respondent was required to bargain at any such
times. An employer is required to bargain in good faith with a union which
represents a majority of its employees in an appropriate unit. The query then
arises, were six or more of the persons named in the complaint (a majority of
the individuals who had signed union-authorization cards, disregarding the fact
that Slaven was not in Respondent's employ on August 18 and General Counsel's
apparent concession that Kyzar, the city driver, who was not himself engaged in
interstate commerce and therefore might not properly be included in the appro-
priate unit) employees of Respondent at the time Moore telephoned to Sam
Paciera or the latter received Moore's letter asking for an appointment?
I am of the opinion, whatever may have been the precise status of the "old"
drivers after replacements had been hired, whether they had quit as Paciera
states he believed from the fact of their requesting letters of recommendation
after having failed to report for work and having absented themselves, or whether
the act of hiring new drivers to take their places was equivalent to a discharge,
that their position with respect to reemployment was no better than that of
economic strikers.
The law is well settled that in an economic strike the employer may refuse to
reemploy the strikers on the ground that their jobs have been filled by replace-
ments. It is equally good law that once an economic striker has been super-
seded by a replacement he no longer remains an employee.
The General Counsel acknowledges the correctness of these general propositions
of law. He does not concede however that the complainants had been replaced.
It has been found as a fact, however, contrary to the General Counsel's conten-
tion, that they were replaced before any of them had requested employment or
reinstatement.
The complainants are not individuals whose work had ceased as a consequence
of, or in connection with, any current labor dispute or'because of any unfair
labor practice. Consequently they were no longer employees of Respondent.
I therefore conclude that by the time any request to bargain had been made,
not only was the Union not the duly authorized bargaining representative of a
majority of Respondent's employees in an appropriate unit but it did not repre-
sent any of such employees. Accordingly I shall recommend dismissal of the
portion of the complaint alleging a refusal to bargain.
4. Final conclusions
Respondent had a right to replace the complainants, whose positions are no
better than that of economic strikers, in order to operate its business. There
is no substantial evidence that for a period of 71/2 months from August 21, 1950,
to the date of the hearing, Respondent has hired any drivers, with the exception
of one Crawford, a former employee who returned about the first-of 1951, other
than David M. Brewer, Kyzar, and Byrd. Under these circumstances and since
the needs of the business did not invariably require 11 truck drivers and upon
the entire record, I believe that no available vacancies in established positions
have been shown to have existed for filling by Kirby, Sullivan, Richard Cain,
Eloise Cain, Morgan, W. C. Brewer, and Whitehead, or any of them who sought
reemployment, and that Respondent did not under any cirmcumstances discrim-
inatorily fail and refuse to recall them.
In summary, when Respondent's 10 truck drivers did not report for work on
August 18, 1950, they Were rightfully permanently replaced as a group" by 8
21 The number of drivers fluctuated. At times less than 11 were employed. For example,
Respondent had but 9 in its employ on March 4 , 1951. The excess over 8 existed for the
purpose of providing operators for required interchangeable days o8 or absenteeism.
THE AMERICAN ENVELOPE CO. 1541
drivers who were sufficient to take care of the needs of the business for that day
at least. The Employer was under no obligation to discharge the 8 men it had
hired on the morning of August 18 in order to substitute the former employees.
Even if it were held that the entire group had not been replaced, at least a
majority of the jobs had been filled by permanent employees and a majority of
the individuals named in the complaint were no longer employees of Respondent.
Thus the Union had lost its status as the bargaining representative of a-majority
of Respondent's employees in an appropriate unit before 3 p. in. on the 18th
when Respondent was first requested to reinstate the members of such unit and
Respondent was not required to bargain with the Union. In view of the fore-
going conclusions as well as my conviction that it has not been shown that the
Union coerced, threatened, interrogated, or made promises of benefit to em-
ployees, in violation of the Act, I find that the evidence warrants no finding that
Respondent committed unfair labor practices within the meaning of Section 8
(a) (1), (3), and (5) of the Act. It will therefore be recommended that the
complaint be dismissed in its entirety.
On the basis of the foregoing and the entire record in the case, I make the
following :
CONCLUSIONS OF LAW
1. Gulf Coast Oil Company is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, General Truck Drivers, Warehousemen and Helpers, Local
270, AFL, is a labor organization within the meaning of Section 2 (5) of the Act.
3. All employees classified as truck drivers at Respondent's New Orleans,
Louisiana, place of business, excluding office and clerical personnel, mechanics,
servicemen, service station operators, supervisors as defined in the Act, and all
other employees of Respondent, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
4. At all times material herein, the Union was not, and is not now, the exclusive
representative of all employees in the aforesaid unit for the purposes of collec-
tive bargaining.
5. Gulf Coast Oil Company, its successors, assigns, or affiliates neither directly,
nor through its successors, assigns, or affiliates, has engaged in any of the unfair
labor practices alleged in the complaint.
Recommendations
Upon the liasis of the foregoing findings of fact, conclusions of law, and the
entire record in the case, I hereby recommend that the complaint be dismissed
in its entirety.
THE AMERICAN ENVELOPE Co. and INTERNATIONAL BROTHERHOOD OF
PULP, SULPHITE AND PAPER MILL WORKERS, AFL, PETITIONER. Case
No. 9-RC-1045. February 5, 1952
Decision and Order
On January 18, 1951, pursuant to a stipulation for certification
upon consent election, an election by secret ballot was conducted in
the above-entitled matter under the direction and supervision of the
97 NLRB No. 239.
986209-52-vol. 97-98