McKinnon Services, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1969

174 N.L.R.B. 1141 (N.L.R.B. 1969)

MCKINNON SERVICES, INC. 1141
McKinnon Services , Inc. and Sim Servester Phlegm.
Case 23-CA-3038
March 12, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On November 4, 1968, Trial Examiner Harry R.
Hinkes issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that the Respondent had not engaged in
other unfair labor practices alleged in the complaint
and recommended that such allegations be
dismissed. Thereafter, the General Counsel filed
exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, -the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, McKinnon Services, Inc., Houston,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified:
1. Substitute the following for paragraph 1(b) of
the Trial Examiner's Recommended Order:
"(b) Threatening loss of route bonuses, Christmas
bonuses, paid vacations, reductions in hours, or loss
of any other existing benefits for the purpose of
discouraging union activities."
2. Substitute the following for the second indented
paragraph of the notice:
WE WILL NOT threaten employees with loss of
route bonuses, Christmas bonuses, paid vacations,
reduction in hours, or loss of any other existing
benefits if you join the Union.
3. In the third indented paragraph of the notice
delete the words "the Union" and substitute therefor
the following.
General Drivers, Warehousemen and Helpers
Local Union No. 968, affiliated with the
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY R. HINKES , Trial Examiner - The complaint
herein was issued on July 19, 1968, pursuant to a charge
filed on May 27 by Sim Servester Phlegm and served
upon McKinnon Services , Inc , hereinafter referred to as
the Respondent or Company . The Respondent is alleged
to have violated Section 8 ( a)(1) and ( 3) of the Act by the
discharge of its employee Sim Servester Phlegm, and
Section 8(a)(1) of the Act , through certain of its agents
and supervisors , by interrogation of its employees
concerning their activities on behalf of the General
Drivers, Warehousemen and Helpers Local Union No.
968, affiliated with the International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America , herein called the Union , and, by threatening its
employees with loss of benefits if they gave support to the
Union
Also on July 19, 1968, by order of the Acting Regional
Director , Case 23-CA- 3038 was consolidated for hearing
with Case 23-RC-3142 in which it is alleged that on July
2, 1968 , pursuant to an agreement for consent election
approved on May 27, 1968 , an election by secret ballot
was conducted at which of nine votes cast , three votes
were cast for the Petitioning Union and three votes were
cast against it. Three ballots were challenged : The first,
that of Willie Nash, an employee , was challenged by the
Employer and the challenge sustained by the decision of
the Acting Regional Director . The second , that of
employee Phlegm , was challenged by the Employer and
the third , that of Tony Oglesby, an alleged supervisor, was
challenged by the Union The Acting Regional Director's
order of July 19, 1968 , referred the issues raised by the
challenged ballots of Oglesby and Phlegm to a hearing,
ruling and decision by a trial examiner.
By answer duly filed , Respondent admitted discharging
employee Phlegm on May 27 but denied the commission
of any unfair labor practices and the supervisory status of
Tony Oglesby and Mary Gavin , alleged in the complaint
to be supervisory agents of the Respondent.
A hearing was held before me in Houston , Texas, on
August 27 and 28 , 1968, at which all parties were
represented and were afforded full opportunity to
participate , examine witnesses and adduce relevant
evidence. Briefs have been received from the General
Counsel and the Respondent and have been given careful
consideration.
Upon the entire record in this proceeding , I make the
following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is and has been at all times material herein
a Texas corporation with its principal office and place of
174 NLRB No. 169
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business at Houston, Texas, where it is engaged in the
business of leasing and servicing garbage disposal
containers. During the 12 months preceding the issuance
of the complaint, a representative period, Respondent in
the course and conduct of its business operations
purchased goods or services valued in excess of $50,000
from sources located in the State of Texas, who in turn
purchased goods valued in excess of $50,000 directly from
sources located outside the State of Texas. The complaint
alleges, Respondent's answer admits, and I find that the
Respondent is now and has been at all times material
herein an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent ' s answer admits,
and I find that General Drivers, Warehousemen and
Helpers Local Union No. 968, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , herein called the
Union, is and has been at all times material herein a labor
organization within the meaning of Section 2 (5) of the
Act
111. THE UNFAIR LABOR PRACTICES
A The Issues
The parties agree that the issues in this proceeding are
as follows:
1 Whether Tony Oglesby and Mary Gavin are
supervisors of the Respondent within the meaning of
Section 2(11) of the Act
2. Whether Oglesby, Gavin, and/or McKinnon
(president and general manager of the Respondent)
interrogated employees concerning their union activities
and/or threatened employees with loss of benefits if they
supported the Union, in violation of Section 8(a)(1) of the
Act.
3. Whether Phlegm was discharged for supporting the
Union in violation of Section 8(a)(1) and (3) of the Act.
B. The Status of Oglesby and Gavin
In its disposal business Respondent employs, in
addition to President and General Manager McKinnon,
Miss Snead, and Mrs. Gavin in the office, some six or
seven employees designated as shop personnel who work
mainly within the plant and six route salesmen or
truckdrivers. Each of the trucks as well as Mr.
McKinnon's car have radios that maintain communication
with the office McKinnon himself spends about half of
his time in the office, but his hours are irregular and on
occasion he does not report at all during a day
1. Tony Oglesby
Oglesby started working for the Company about 5 1/2
years ago as a regular truckdriver. About 1 or 1 1/2 years
ago he was transferred to the position of a "utility man"
in the shop but received no increase in pay or benefits as a
result On that occasion the credited testimony of one of
the employees, which was not contradicted, was that
Oglesby told the other employees that Mr Thomas, who
had been foreman, was no longer in that position and that
henceforth Oglesby would be giving orders Thereafter
Oglesby hired applicants for the Respondent, assigned
trucks, authorized sick leave, and sent injured employees
to the Company doctor. He also conducted periodic
"safety meetings" at which various work problems were
discussed with the employees. President McKinnon was
present at some of these safety meetings which Oglesby
conducted. These meetings were held in the office of the
Respondent, Oglesby sitting at a desk and the other
employees sitting around on the floor Although some of
the employees regarded that desk as a "community" desk,
Oglesby made it quite clear that he regarded the desk as
his own and that he did not want any of the other
employees' personal belongings on his desk. Of all the
employees in the shop or driving trucks, Oglesby was the
only one possessing the key that unlocked the drawers of
that desk It is also clear that as of July 2, the date of the
election, all the shop men and truckdrivers punched a
timeclock. Only three of the employees were on a salary,
Oglesby, Patrick, and Chatman, and according to an
affidavit executed by Mrs. Gavin at that time, Oglesby's
salary was $160 per week compared to Patrick's $150 per
week. (It appears that Chatman earns less than Oglesby
and Patrick ) Some unspecified time after the election
these three salaried employees were put upon an hourly
rate basis. Although Oglesby was called to testify on
behalf of the Respondent, he failed to contradict the
foregoing attributes of his employment with the
Respondent McKinnon, however, denied making Oglesby
a foreman and claimed to be the only person authorized
to direct or instruct employees He admitted hiring
employees on Oglesby's recommendation, however, and
that employees had been hired and had gone to work
before he had personally approved their employment He
also submitted a document prepared from company
records showing that some employees received more total
wages during May, June, and July 1968 than Oglesby.
This document, however, did not contain the wages of all
of the employees, nor did it indicate the rate of pay As-a
result, it is insufficient to contradict the explicit language
of Mrs Gavin's affidavit referred to earlier wherein
Oglesby's salary was specified Counsel for the
Respondent also cites the testimony of McKinnon to the
effect that Patrick's rate of pay is 71 cents higher than
Oglesby's. This difference, however, was in effect at the
time of the hearing. McKinnon was unable to recall the
difference, if any, that existed at the time of the election
or earlier. Such vague and uncertain testimony is
insufficient to contradict Gavin's specific statements
regarding salary differences between Oglesby and others
2. Mary Gavin
Mrs. Gavin started working for the Respondent about 4
years ago She is primarily the secretary of Mr.
McKinnon and, together with Miss Snead, constitutes the
office force for the Respondent Mrs Gavin testified that
she never hired anyone and that no new employee was put
on the payroll before Mr McKinnon saw the application
form Her affidavit executed shortly after the election,
however, recites "I have hired about five drivers by having
them come to work right away before checking with Mr.
McKinnon, but subject to Mr McKinnon's approval."
McKinnon himself testified that "If an applicant looks
particularly good to Mrs. Gavin she might put the
individual to work subject to further checking," adding
"Mrs Gavin would routinely turn away applicants if they
were too young or carried no commercial license " Mrs.
MCKINNON SERVICES, INC. 1143
Gavin explained , however , that Mr McKinnon had left
instructions with her that " Because of the labor situation,
to hire somebody with two arms and two legs." Mr
McKinnon testified that he would give serious
consideration to Mrs. Gavin's recommendations regarding
employment or discharge of an employee as he would to
"several others " She also testified that when an urgent
service call comes in requiring some action , she radios
Mr. McKinnon for instruction if he is not in the office
and relays McKinnon ' s instruction to the appropriate
employees . Phlegm in his testimony , explained that
although Mrs Gavin relayed customer ' s calls to him for
pick - up, he would also answer such telephone calls as
would other employees , and would either relay the call to
the employees whose route was involved , or make the
pick -up himself When Mr McKinnon is on vacation she
and Miss Snead decide what should be done
3 Conclusions as to Status
Section 2( 11) defines supervisor as
Any individual having authority, in the interest of
the employer, to hire, transfer , suspend , lay off, recall,
promote, discharge, assign, reward , or discipline other
employees, or responsibly to direct them, or to adjust
their grievances , or effectively to recommend such
action, if in connection with the foregoing the exercise
of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.
Counsel for the General Counsel cites Gavin's
testimony to the effect that she sends out the truckdrivers
under certain circumstances . Although Gavin stated that
she does so only upon instructions from Mr. McKinnon,
counsel for the General Counsel argues that such routine
is not credible in view of the large number of customers
serviced by the Respondent Assuming that there are
occasions when Gavin acts without instruction from Mr.
McKinnon , it does not necessarily follow that such actions
constitute her a supervisor It does not appear that her
activities in this connection are other than "merely routine
or clerical." Phlegm's testimony corroborates this
impression inasmuch as it appears from his testimony that
anyone taking calls from customers routinely directs the
call to the appropriate driver or services the customer
himself Counsel for the General Counsel also argues that
Gavin "also testified as to instances where she had
admonished the drivers for not performing their work
properly " Actually, however, he asked Mrs. Gavin
Q Do you ever at least admonish them , you know,
or tell them to take care of that customer , he is pretty
good, and he has already had three calls in, or
something like that?
A Well, I have told them he is a real good
customer , you know, so he should try to take care of it
Q Did you bring this to Mr McKinnon ' s attention'
A No He checks my call log everytime he walks in
my office.
Mrs Gavin further explained her relationship with the
other employees as follows
Well, its only my job just to let them know about their
calls, and so I don't attempt to argue with them or
anything about it.
Here , too, her activities are not sufficient to rise above the
"merely routine or clerical " Finally, counsel for the
General Counsel stresses the fact that Mrs Gavin has the
authority to put an applicant for employment on the
payroll of the Respondent without prior approval from
Mr. McKinnon . This authority , however, is limited to the
employment of any able - bodied man over 25 and having a
commercial driver ' s license It involves no independent
judgment and is insufficient to render her activities of a
supervisory nature within the meaning of the Act I
conclude, therefore , that Mary Gavin is not a supervisor.
Much the same may be said of Tony Oglesby's
functions . In his case , however , it appears that in addition
to hiring applicants for employment he is regarded by the
other employees as a supervisor or foreman Other
employees seek his permission to be excused for illness or
to see the Company doctor when they are injured on the
job Moreover , his apparent authority is bolstered by Mr.
McKinnon who permits him to hold safety meetings with
the other employees and to conduct such meetings even
when McKinnon himself is present Finally, and perhaps
of most telling importance , it is significant that with Mr
McKinnon at the office no more than about half of the
time, the 15 or so employees of the Respondent would be
without any responsible supervision much of the time
unless Oglesby were the supervisor . See Crimptex, Inc.,
145 NLRB 422, affd. 341 F.2d 576 (C A. 1).
Counsel for the Respondent cites Lampcraft Industries,
Inc. and Leslie China , Inc., 127 NLRB 92, wherein the
Board held that department heads are not supervisors
within the meaning of the Act although they train new
employees, fill out daily production reports, bring to the
attention of supervisory officials the needs for additional
supplies and materials , and have "some leadership
responsibilities ." It is argued that Oglesby is in much the
same category . I find, however , a major difference
between that case and the instant proceeding As the
Lampcraft decision points out at page 95:
If the seven department heads were found to be
supervisors . the ratio would be approximately eight
supervisors to 20 employees in Lampcraft and five
supervisors to 23 employees in Leslie
In the instant proceeding , unless some supervision is found
beyond that of Mr McKinnon who is at his office no
more than half of the time, the ratio of supervisors to
other employees of the Respondent would be
approximately one half supervisor to 15 employees, or no
supervisor for 15 employees for half of the working time
Such a ratio is as unreasonable as the ratio referred to in
the Lampcraft case
The above considerations , added to the fact, as found,
that Oglesby, prior to the election, was one of the few
who were paid on a salary basis and whose salary was
higher than anyone else, lead me to conclude that he must
be regarded as a supervisor of the Respondent
Accordingly, the challenge to his ballot must be sustained
and I so recommend.
Although I have concluded that Mary Gavin's functions
do not qualify her as a supervisor, it does not necessarily
follow that her actions do not bind the Respondent In
IAM v N L R.B, 311 U S 72, 79-80, the Supreme Court
stated
Petitioner's argument is that since these [lead] men
were not supervisory their acts of solicitation were not
coercive and not attributable to the employer.
The employer, however, may be held to have assisted
the formation of a union even though the acts of the
so-called agents were not expressly authorized or might
not be attributable to him on strict application of the
rules of respondent superior We are dealing here not
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with private rights (Amalgamated Utility Workers v
Consolidated Edison Co , 309 U S 261) nor with
technical concepts pertinent to an employer's legal
responsiblity to third persons for acts of his servants,
but with a clear legislative policy to free the collective
bargaining process from all taint of an employer's
compulsion, domination, or influence The existence of
that interference must be determined by careful scrutiny
of all the factors, often subtle, which restrain the
employees' choice and for which the employer may
fairly be said to be responsible Thus, where the
employees would have just cause to believe that
solicitors professedly for a labor organization were
acting for and on behalf of the management, the Board
would be justified in concluding that they did not have
the complete and unhampered freedom of choice which
the Act contemplates.
Other decisions have followed this test. Thus, in
Hampton Merchants Association, 151 NLRB 1307, a
nonsupervisory employee was found to have held himself
out to be, and was regarded as, a management
representative. That employee was stationed in the store's
foyer, handed out job applications, answered inquiries
concerning available jobs, directed outsiders to persons or
places in the store, directed applicants to departments
where jobs were available and at times personally escorted
them to various departments inside the store and handed
out insurance forms to employees. Accordingly, the Board
held that employee's employer accountable for his
statements to the employees in violation of Section 8(a)(1)
of the Act Similarly, in Alpine Coal Company, 150
NLRB 445 at 449, a nonsupervisory employee who
screened applicants for employment and who acted as the
conduit for decisions of the supervisor carrying out his
duties in the same office as the president of the
Respondent Employer,
. . was either part of the responsible management of
Respondent or so closely connected to it in carrying out
duties that management should be held accountable
for his conduct.
See also Finesilver Manufacturing Co., 160 NLRB 1400,
where the Respondent Employer was held accountable for
the actions of a nonsupervisory employee who
"interviewed applicants for employment and was the office
employee to whom requests for leave were addressed It
was found that the employees "had just cause to believe
that [that office employee] was acting for and on behalf of
the management in the situation under dispute, and,
therefore, liability for [her] conduct is properly
attributable to the Respondent "
Considering the fact that Mary Gavin is primarily the
secretary of Mr McKinnon, that she relays his
instructions to the employees, that she makes out the
route assignments and screens applicants for employment,
I conclude that the employees would have just cause to
believe that Gavin was acting for and on behalf of the
management and that the Respondent must be held
accountable for her conduct which is discussed below To
paraphrase the Board's language in Valley Forge Flag
Company, 152 NLRB 1550,
Whether or not [Gavin] was technically a "supervisor"
under the Act, her responsibilities put her in a position
to be identified with management in the eyes of the
employees and to translate to them the policies and
desires of management
C. The 8(a)(1) Conduct
Jessie Chatman testified that he signed a union card at
a union meeting held on May 5 On May 6 and May 7
Oglesby asked Chatman how the meeting had gone at the
union hall but Chatman denied any knowledge of it. On
May 16, Oglesby called a "special meeting" of the
employees at which the Union was discussed. Oglesby told
the employees he had heard about the Union and that if
the employees chose union representation they would lose
their route bonus and their Christmas bonus as well as
their vacation pay and overtime Chatman's testimony was
corroborated by witness Phlegm in his testimony.
Although Oglesby testified on behalf of the Respondent,
he failed to contradict or deny the testimony of Phlegm
and Chatman concerning either his interrogation of May 6
and 7 or his statements at the May 16 special meeting I
credit the testimony of Chatman and Phlegm and find
that the conduct of Oglesby on the above-mentioned dates
carried a clear threat of reprisals for supporting the Union
at the May 16 meeting in violation of Section 8(a)(1) of
the Act. Similarly, his interrogation of Chatman on May
6 and 7 calling, in effect, for Chatman to disclose his
affiliation and support of the Union by his attendance
there would have the coercive effect of discouraging an
employee from exercising his rights as guaranteed under
Section 7 of the Act, in violation of Section 8(a)(1) of the
Act.
Counsel for the Respondent points to the testimony of
the employees that Oglesby did not dictate the employees'
vote on the Union but encouraged them to do their own
thinking and made it clear that he was not speaking for
the Company but for himself. Such utterances, however,
could not cancel the coercive effect of his statements and
threats emanating as they did from the supervisor who
conducted the meeting and who directed their everyday
activities. Moreover the mere statement that Oglesby was
speaking for himself and that the employees could decide
for themselves, would have little effect upon the employees
when coupled with a threat of job loss if they supported
the Union Great Lake Timber Co., 157 NLRB 1407.
Chatman also testified that Mary Gavin asked him
about the Union in May and told him that the Company
could not support the Union because it would have to get
more equipment and more men and cut down on hours
because of company finances She elaborated further that
bonuses and vacations with pay would be cut out.
Chatman also testified that Gavin told him Mr
McKinnon "is convinced that you will not vote for the
Union " On another occasion, Gavin told him she was
trying to figure out who was for the Union but Chatman
told her he did not know. I credit Chatman's testimony
particularly since Mrs Gavin failed to deny or contradict
it in her testimony
Counsel for the Respondent argues that Chatman "in
fact encouraged Gavin to discuss the Union with him."
The record does not support that argument. Chatman
merely testified that Gavin said "I want to talk to you
about something" to which Chatman replied, "Go ahead."
Whereupon Gavin said "About this Union " Chatman
asked, "What about it)" Gavin replied, "Why do the guys
want this Union?" This colloquy does not suggest that
Chatman encouraged Gavin to discuss the Union with
him, but that he merely encouraged Gavin to tell him
what she wanted to talk to him about. It was Gavin who
first mentioned the Union and who initiated the
conversation. Counsel for the Respondent also points to
the fact that Gavin, Chatman, and Chatman's wife
MCKINNON SERVICES, INC. 1145
maintained friendly personal relations The most that can
be said is that such friendly relations between Gavin and
Chatman might tend to dispell any coercive effect upon
Chatman. The test, however , is not whether Chatman was
actually coerced by Gavin ' s statements but whether
Gavin ' s statements had the tendency to be coercive upon
Chatman. Blue Flash Express , Inc , 109 NLRB 591, cited
in Ainsworth Mfg. Co., 131 NLRB 273, 274, Radio
Officers Union v. NL R. B., 347 U.S. 17 51. Had
Chatman understood Gavin to be simply joking, there
might be reason to doubt the coercive nature of her
statements (A P. Green Fire Brick Co , 140 NLRB 1067)
but such is not the case here . I think it significant that
when Gavin told Chatman that Mr McKinnon "is
convinced that you will not vote for the Union ," Chatman
made no attempt to enlighten her although he had already
signed a union card On another occasion when Gavin told
Chatman she was trying to figure out who was for the
Union, Chatman told her that he did not know Such
concealment by Chatman is indicative , in my opinion, of
the presence of some coercive effect upon him by Gavin's
statements , even in the atmosphere of a friendly
conversation . General Automation Mfg, 167 NLRB No.
66; Arkansas Grain Corp , 160 NLRB 309'
D. The Discharge of Phlegm
1. Phlegm's testimony
Phlegm testified that he started working for the
Respondent in March, 1967 when he filled out an
application form for Gavin who sent him to be
interviewed by "Foreman" Oglesby. Oglesby asked
Phlegm to start work immediately but when Phlegm
indicated a desire to change clothes, Oglesby allowed
Phlegm to use one of the Respondent's trucks to go home
and change clothes Upon his return he went to work as a
shop employee Around May 1967, Oglesby assigned
Phlegm to a night route driver's position which Phlegm
occupied until November, 1967 when he voluntarily quit
because of some dispute over an error in his paycheck
Three or four days later Oglesby telephoned Phlegm
admitting the error and asking Phlegm to return, which he
did. About a month later, he again voluntarily quit
because of further errors in his pay. This time he was
away from work for about a month until sometime in
February or March 1968, when Oglesby again called him
and asked him to return This time Phlegm was assigned a
day truck route
On May 5, 1968, Phlegm attended a union meeting and
there signed a union card On the following day,
McKinnon asked Phlegm if he was going to support the
Union or the Respondent, referring to a notice of an
election that had been posted on the employees' bulletin
board When Phlegm replied that he did not think it was
right for McKinnon to ask him, McKinnon said "Okay."
Again, on May 24, McKinnon called Phlegm into his
office and asked him whether Phlegm was going to be
with the Company or with the Union. To this Phlegm
again replied that he did not think it was right for
McKinnon to ask him and again McKinnon replied
"Okay Keep the good work up, and I will see you later."
That evening, Phlegm told Oglesby that he wanted to be
off the following day to attend a funeral Oglesby said
'Although Arkansas Grain was reversed upon appeal by the United
States Court of Appeals for the Eighth Circuit, 392 F 2d 161, 1 am bound
by the decision of the Board
that if Phlegm came in early and got a good start he
would probably make it in time to get off. Accordingly,
on May 25, Phlegm reported to work shortly before 6
a.m He found the "power take-off on the truck was out,"
and no mechanic present to fix it He thereupon looked up
Oglesby's telephone number in an address book on the
desk, called Oglesby, and told him of the truck being
down. Oglesby told him to check truck 14 but that, too,
was down. Oglesby then said "Look around. You might
find another old truck out there, probably just make a few
stops until a mechanic gets in and fixes your truck." As
Phlegm went back to look around, employee McDaniel
came in and went to speak to Oglesby on the telephone
He reported, however, that Oglesby was not on the line
and Phlegm also found no one on the line. Phlegm then
called Oglesby again but this time there was no answer.
Phlegm stayed around the shop until somewhere between
7:30 and 8 when he went home.
On the next workday which was Monday, May 27,
Phlegm reported to work after 7 a.m. There was nobody
around but finally Mr. McKinnon came in and told
Phlegm that Oglesby was on Phlegm's route that day. He
also told Phlegm that he thought Phlegm had quit but
Phlegm denied quitting McKinnon then asked Phlegm
once again if he was going to be with the Company or
with the Union to which Phlegm told him that he still did
not think it was right to ask him. McKinnon then handed
Phlegm his paycheck and told him he was fired.
Employee McDaniel corroborated part of Phlegm's
testimony by testifying that he heard Phlegm talking to
someone on the telephone and the name Tony mentioned
When he went to talk to Oglesby he found the telephone
dead. He added, however, that later that same morning
when Oglesby came to the shop he asked Oglesby why he
had hung up and Oglesby told him that he had fallen
asleep on the telephone.
2. Respondent's testimony
Oglesby in his testimony did not deny that Phlegm had
told him on Friday, May 24, that he intended to attend a
funeral the following day, Saturday, May 25, or that he
told Phlegm that if Phlegm got in early he could finish his
run and attend the funeral Oglesby-did deny, however,
receiving a telephone call from Phlegm on Saturday, May
25 He explained further that his telephone number is
unlisted and is not kept in the address book on his desk.
The address book was produced by the Respondent and
examined by all counsel Pursuant to Respondent's motion
which was unopposed, I have taken administrative notice
of the fact that the telephone company will not disclose
unlisted telephone numbers.
McKinnon, in his testimony, denied mentioning the
Union in any conversation with Phlegm. He admitted
having several conversations with Phlegm, but these
conversations concerned complaints from customers about
Phlegm's performance and dissatisfaction with the time at
which Phlegm reported for work. Although the established
time for reporting to work was 6 a m , McKinnon testified
that he would not argue about 10 or 20 minutes lateness.
Time records introduced in evidence show that Phlegm
clocked in at 6.20 or earlier 24 times between March 25
and May 25, 1968 as against 32 times when he clocked in
later than 6:20. There is no documentary evidence showing
the clock-in time of any other employees with which to
compare Phlegm's time record. McKinnon also testified
that Phlegm had received 16 complaint calls during the
month of May. He could not, however, recall any specific,
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
number of complaints received by any other driver for any
month Although Respondent maintains a daily log
showing the number of complaint calls, no such
documentary record was offered in evidence to support the
testimony of McKinnon.
McKinnon also testified that Phlegm was a constant
"griper " The only record evidence on this issue, however,
is the testimony of Chatman and McDaniel. Chatman
testified that he called Phlegm "gripey" because Phlegm
frequently complained to the mechanics because his truck
had not been repaired when he reported to work, since he
wanted to go to work rather than stand around idle.
McDaniel testified he had no difficulties getting along
with Phlegm
McKinnon further testified that on Saturday, May 25,
between 7:30 and 8 a.m. he called the shop and talked
with employee Booty who told him that everyone had
gone except Phlegm who had dust left the shop. About an
hour later , McKinnon called the shop again and learned
that Phlegm still had not returned although his truck had
been fixed At about 10:30, McKinnon called the shop
once again and, learning that Phlegm still had not
returned, telephoned Oglesby and told him to take
Phlegm's run. He testified that he obtained Oglesby's
number from a card which he kept in his billfold Oglesby
in his testimony confirmed McKinnon ' s telephone call to
him. At about noon on that day, McKinnon instructed
Miss Snead to make out Phlegm ' s final check and leave it
in McKinnon ' s desk drawer.
On Monday, May 27, McKinnon came to the shop
around 6 a.m , got Phlegm's check out of the desk drawer
and directed Oglesby to take Phlegm's route. Phlegm
checked in that morning at 7:20 or 7:30. McKinnon went
up to him and asked him where he had been on Saturday
to which Phlegm replied that he had some business to
attend to, so he just left. McKinnon told him that he did
not know what had happened to Phlegm on Saturday and
presumed that he had again quit his job. He added that he
cannot operate a business that way and cannot use him
3. Conclusions on Phlegm's discharge
It is clear that an employer may discharge an employee
for any cause or no cause , as long as it is not motivated
by activities protected by Section 7 or proscribed by
Section 8(a)(3) of the Act. Magnolia Petroleum Co. v.
N.L.R.B., 200 F.2d 148; N.L.R.B. v. Solo Cup Co., 237
F.2d 521. The failure of an employer in an unfair labor
practice proceeding to show proper cause for a
termination does not relieve the General Counsel from his
burden of establishing that the discharge was motivated by
proscribed considerations. However, unconvincing or
multiple reasons for discharge may be a significant factor
in determining whether or not the discharge was
improperly motivated. N.L.R B v. Schill Steel Company,
340 F 2d 568; N.L.R.B v. R.C. Can Co., 340 F.2d 433.
Counsel for the General Counsel argues that the various
reasons advanced by the Respondent for the discharge of
Phlegm were pretextual He points, for example, to
McKinnon ' s testimony that Phlegm was a constant
"griper ." There is no substantiation of this accusation.
Indeed, the only testimony in this proceeding on that
subject is the testimony of two fellow employees, one of
whom said he had no difficulties getting along with
Phlegm , and the other cited Phlegm ' s "gripe" being a
complaint because his truck was not ready on time so that
he could go to work. Such a "gripe" would hardly be
objectionable to any reasonable employer. Counsel for the
General Counsel also points to the alleged lateness of
Phlegm and the Respondent's failure to submit evidence
of the check-in times of other employees for comparison
with the check-in times of Phlegm. Without such evidence
I am unable to conclude that Phlegm's behavior in this
respect was any different from that of other employees.
Assuming, therefore, that the reasons advanced for the
discharge of Phlegm fail to support a finding of a proper
cause for Phlegm's termination, it is still incumbent upon
General Counsel to establish that the discharge was
motivated by proscribed considerations. In this respect I
conclude that the General Counsel has not met his burden
of proof.
There is nothing in the record to indicate that Mr.
McKinnon or any of his management representatives were
aware of Phlegm's union interest or adherence. As counsel
for the General Counsel expressed it in his opening
statement:
We will attempt to establish that the reasons that the
Company gave for discharging this individual were
pretextual and they were really grounded on the fact of
his being noncommittal when asked whether he was
going to vote for the Company. This was interpreted as
an allegiance with the Union and that this was the
reason that he was discharged.
Here we have an issue of credibility. Phlegm testified
that on three different occasions prior to his discharge,
Mr. McKinnon asked him whether he was for the Union
or for the Company, and on each occasion he refused to
answer McKinnon, on the other hand, denied ever talking
about the Union with Phlegm I do not credit Phlegm's
testimony in this respect, primarily because I find his
testimony in another respect unreliable and incredible
Phlegm testified that when he came to work on May 25,
he found Oglesby's telephone number in an address book
on Oglesby's desk and called Oglesby to report his truck
out of repair. The address book was produced at the
hearing and no such number was to be found therein.
Moreover, Oglesby testified without contradiction that he
has an unlisted telephone number, and I have taken notice
of the fact that the telephone company will not disclose
unlisted telephone numbers. No explanation for Phlegm's
success in reaching Oglesby was offered, and I conclude
that Phlegm did not telephone Oglesby and speak to him
that morning . This conclusion leads me to question other
aspects of Phlegm's testimony, particularly, his testimony
with respect to McKinnon's inquiry on how he stood, for
or against the Union . I find that McKinnon made no such
inquiry of Phlegm on those three occasions and
consequently there was nothing which McKinnon or any
of his management representatives could interpret as an
allegiance with the Union.
Upon consideration of all the evidence, I am unable to
find that Respondent was aware of or suspected Phlegm's
union interest when it discharged him. Although
McKinnon ' s discharge of Phlegm may have been
unreasonable and unjustified when viewed in the light of
the alleged irregularities in his work, the General Counsel
has not proved that Respondent discharged Phlegm for
union activities. Morton Food, Inc , 133 NLRB 785,
Walls Manufacturing Company, Inc., 128 NLRB 487;
Indiana Gas and Chemical Corporation , 130 NLRB 1488.
Accordingly, the challenge to Phlegm's ballot must be
sustained and I so recommend since it is clear to me that
he was not employed by the Respondent on the date of
the election
MCKINNON SERVICES, INC. 1147
CONCLUSIONS OF LAW
1. Tony Oglesby is a supervisor for the Respondent
within the meaning of Section 2(11) of the Act
2. Mary Gavin is a management representative for the
Respondent which should be held accountable for her
conduct
3. By Supervisor Oglesby's interrogation of Chatman
on May 6 and 7, by his statement at an employee safety
meeting on May 16 that they would lose certain benefits if
they chose union representation, by Gavin's interrogation
of Chatman and statements to him that certain employee
benefits would be lost if the Union came in, Respondent
has violated Section 8(a)(1) of the Act.
4. The General Counsel has not sustained his burden of
proof in establishing that Respondent violated Section
8(a)(1) of the Act by Mr. McKinnon's alleged
interrogation of employee Phlegm regarding his union
attitude nor that Respondent violated Section 8(a)(1) and
(3) of the Act in its discharge of Phlegm on May 27. The
allegations of paragraphs 7(f), 7(g), and 9 are therefore,
dismissed.
THE REMEDY
signed by the Respondent's representative, shall be posted
by the Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter.
Steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this
Recommended Order, what steps the Respondent has
taken to comply herewith '
IT IS FURTHER ORDERED that Case 23-RC-3412 be, and
the same hereby is, severed from this proceeding and
transferred to the Regional Director for Region 23 for
further processing.
If this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the
Recommendations of a Trial Examiner" in the notice If the Board 's Order
is enforced by a decree of the United States Court of Appeals, the notice
will be further amended by the substitution of the words "a Decree of the
United States Court of Appeals Enforcing an Order" for the words "a
Decision and Order "
'If this Recommended Order is adopted by the Board, this provision
shall be modified to read "Notify the Regional Director of Region 23, in
writing , within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith "
Having found that the Respondent has engaged in
unfair labor practices violative of Section 8(a)(1) of the
Act, I shall recommend, that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act. Having further found that the
challenges to the ballots of both Tony Oglesby and Sim
Servester Phlegm should be sustained, I shall, in
accordance with the order of the Acting Regional Director
for Region 23, sever Case 23-RC-3142 and transfer it to
the Regional Director for further processing
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, I recommend that the Respondent,
McKinnon Services, Inc , its officers, agents, successors,
and assigns, shall-
1 Cease and desist from:
(a) Unlawfully interrogating employees concerning their
union activities and attitudes.
(b) Threatening loss of benefits if the Union was elected
their bargaining representative.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization, to form labor
organizations, to join, or assist General Drivers,
Warehousemen and Helpers Local Union No. 968, or any
other labor organization, and to engage in any other
concerted activities for the purpose of collective
bargaining or any other mutual aid or protection, or to
refrain from any and all such activities
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Post in conspicuous places at its place of business,
including all places where notices to employees are
customarily posted, copies of the attached notice marked
"Appendix "Z Copies of said notice on forms provided by
the Regional Director for Region 23, after being duly
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT interrogate you unlawfully concering
your union activities or attitudes.
WE WILL NOT threaten loss to you if you join the
Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
right to self-organization, to form, join or assist the
Union or any other organization, to bargain collectively
through representatives of your own choosing or to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities
Dated By
MCKINNON SERVICES,
INC.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas 77002,
Telephone 713-228-4296