Reed's Fuel Co.

National Labor Relations Board - Board Decisions

Mar 29, 1962

136 N.L.R.B. 654 (N.L.R.B. 1962)

654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in and at all times material herein has been engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2 (5) of the Act.
3. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8(a) (1) and (3) of the Act.
RECOMMENDATION
It is recommended that the complaint be dismissed in its entirety.
Reed 's Fuel Company and International Woodworkers of
America Local Union 3-246 , AFL-CIO. Case No. 36-CA-1117.
March 29, 1962
DECISION AND ORDER
On January 17, 1962, Trial Examiner Herman Marx issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. The Trial Examiner also found that Respondent had
not engaged in certain other unfair labor practices, and recommended
that the allegations in the complaint as to them be dismissed. Ex-
ceptions to the Intermediate Report and a supporting brief were filed
by the General Counsel.
The Board I has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record, and
adopts the findings, conclusions, and recommendations of the Trial
Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner?
'Pursuant to the provisions of Section 3(b) of the Act the Board has delegated its
powers in connection with this case to a three-member panel [Chairman McCulloch and
Members Rodgers and Fanning]
'The following sentence shall be added to the notice- "Employees may communicate
directly with the Board 's Subregional Office, 612 Lincoln Building , 208 SW Fifth
Avenue, Portland , Oregon, Telephone Number, Capitol 2-1607 , if they have any question
concerning this notice or compliance with its provisions"
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint in this proceeding , issued by the General Counsel of the National
Labor Relations Board (referred to as the Board herein ), alleges, as amended, that
the Respondent , Reed's Fuel Company ( also called the Company herein), has
136 NLRB No. 65.
REED 'S FUEL COMPANY 655
violated Section 8 (a)(3) of the National Labor Relations Act, as amended (29
U.S.C., Sec. 151, et seq.; also referred to herein as the Act), by withdrawing
privileges and benefits from employees because of their union activity; withholding
work from two employees, Richard Orcutt and William Fletcher, because of such
activity; and discriminatorily discharging an employee, Percy Rowlett; and has by
such conduct, and the interrogation of employees regarding their union activity and
attitudes, abridged rights guaranteed employees by Section 7 of the Act, thereby
violating Section 8(a)(1) of the statute.' The Respondent has filed an answer
which, although admitting that Rowlett was discharged and that the Company en-
gaged in various activities alleged in the complaint to be unlawful, denies that the
discharge and the other conduct in question constituted unfair labor practices.
Pursuant to notice duly served by the General Counsel upon all parties entitled
thereto, a hearing upon the issues in this proceeding has been held before Herman
Marx, the duly designated Trial Examiner, at Eugene, Oregon. The General
Counsel, the Respondent, and a labor organization known as International Wood-
workers of America, Local Union 3-246, AFL-CIO (also called the Union herein),
which filed the charge in this proceeding, appeared through, and was represented by,
respective counsel; participated in the hearing; and were afforded a full opportunity
to be heard, examine and cross-examine witnesses, adduce evidence, file briefs, and
submit oral argument. By stipulation at the hearing, the parties waived their
right to file briefs.
Upon the entire record, and my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. NATURE OF THE COMPANY'S BUSINESS; JURISDICTION OF THE BOARD
The Company is an Oregon corporation; maintains its principal office and place
of business in Springfield, Oregon; and is there engaged in the business of providing
fuel delivery and other trucking services.
During the year preceding the issuance of the complaint, the Company, in the
course and conduct of its business, derived a gross income in excess of $50,000
from its operations. These included services performed for various enterprises en-
gaged in interstate commerce, each of which "annually" ships products valued in
excess of $50,000 directly from locations in Oregon to places in other States. By
reason of its services to such enterprises, and the interstate shipments made by the
latter, the Respondent is, and has been at all times material to the issues, engaged
in operations affecting interstate commerce within the purview of the Act. Accord-
ingly, the Board has jurisdiction over the subject matter of this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
As the complaint alleges, and the answer admits, the Union is, and has been at
all times material to the issues, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
The Company employs about 15 persons, some of them truckdrivers whose pri-
mary function it is to procure sawdust and other timber remnants at specified saw-
mills, and to haul the material to various enterprises that use the products as fuel.
The employees perform their work under the supervision of the Company's presi-
dent, Alvin Reed, who is the dominant figure in the direction of the firm's affairs
and is, by force of his functions, a supervisor within the meaning of Section 2(11)
of the Act.
Prior to May 1961, the Company had in effect a policy of granting "personal
loans" to employees; distributing paychecks "informally" to them instead of requir-
ing each to come to the office for his check; joining with employees in contributing
to sickness or accident benefits for company personnel, or to funeral expenses in-
curred by an employee's family; selling "fuel oil" to the employees at a 5 percent
discount; and paying each driver a bonus of $5 each month if he had had no
accident during the month.
1 The complaint Is based on a charge filed with the Board by International Wood-
workers of America, Local Union 3-246, AFL-CIO, on September 6, 1961, and upon an
amendment thereof filed by the Charging Party on October 11, 1961 Copies of the
charge, the amendment thereof, and the complaint have been duly served upon the
Respondent.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 2, 1961, approximately a dozen of the employees, including Richard
Orcutt, Percy Rowlett, and William Fletcher, attended a meeting at the Union's
headquarters in Springfield, Oregon. The purpose of the meeting, as one may infer
from the record, was to organize the employees; and some, at least, including Orcutt
and Rowlett, signed cards authorizing the Union to represent them in collective
bargaining. The Union distributed "buttons" to the employees present, and some of
these, at least, wore the buttons, visibly displayed, at work on the following day.
Although adducing this evidence regarding the buttons, the General Counsel offered
no description of them. One may infer, however, particularly from the tenor of an
inquiry by Reed of an employee named Donald Herriges regarding such a button,
that the buttons contained some symbol identifying them with the Union. The
inquiry and the context in which it was made will appear at a later point.
In a representation election conducted by the Board on May 22, 1961, a majority
in an appropriate unit of the Company's employees voted in favor of representation
by the Union, and the organization was, as a consequence, subsequently certified as
the collective-bargaining representative of the employees in the unit. Following
certification, a committee of the Union, consisting of one of its business representa-
tives and three employees, Rowlett, Fletcher, and one Willie Millus, held a number
of negotiating meetings with the company. At the time of the hearing in this pro-
ceeding, no contract had as yet resulted from the negotiations, although an oral
accord had been reached as to some matters (not spelled out in the record).
B. The alleged interrogation of employees; withdrawal of privileges and benefits;
and threats of reprisal for union activity
On May 3, 1961, the day following the employees' organizational meeting, while
Rowlett was a work at the Company's place of business, Reed asked him "who the
instigator was," and Rowlett replied that "there wasn't any"; whereupon Reed said
that there would be a meeting in his office that evening and that he wished all em-
ployees to attend.
That day, also, Reed asked Herriges whether he had a union button, and Herriges,
who had received one at the meeting the day before and was wearing it on his
shirt, beneath his coat, replied in the affirmative and showed Reed the button. Reed
also asked Herriges if he had any "gripes," and the latter complained that he was
required to do some work on the truck he drove on his own time. Reed told Herriges
about the meeting scheduled for that evening and instructed Herriges to attend.
Reed assembled substantially the entire work force in his office about 7:30 p.m. the
evening of the same day, and, addressing the group as a whole, asked who the
"instigator" of the union activity among the employees was; why the employees
"went to the Union"; what the "beef" or "gripes" of the employees were; and why,
if they desired unionization , they did not select the "Teamsters" rather than the
Union to represent them. There was no reply to any of these questions. Reed's wife,
who was present, charged the assembled employees with cowardice for not speaking
up. Reed also addressed himself at the meeting to individuals in the group. Thus he
asked Millus what "the gripes" were, to which Millus replied that he had nothing to
say, and referred Reed to the Union. Reed also inquired of an employee named
Floyd Baker what his "gripes" were, and Baker voiced dissatisfaction with the fact
that he was employed on the night shift and did not work alternating shifts?
On a subsequent occasion , some time before the election, Reed summoned an
employee named Frank Kushlan to his office, stating he wished to discuss some work.
In the office, Reed asked Kushlan whether he had joined the Union, and, receiving
an affirmative reply, inquired as to the circumstances. Kushlan replied that he h,d
been "called" to come to the meeting of May 2, and Reed then asked who had called
2 There are variances among the witnesses as to what was said at the meetine, one
describing a remark that another does not, or phrasing what was said in somewhat dif-
ferent terms from others These difference are not decisive factors in my judgment I am
satisfied that each witness gave his best recollection, and that a composite of the material
features of the several descriptions substantially reflects what was said Accordingly,
I have based findings on such a composite I note, in that connection, that Reed gave a
scant account of what he said, testifying to little more than that he had called the
meeting "to try to find out why the group went Union," and what their grievances were
This testimony, although sketchy, corroborates at least some basic features of the accounts
given by employees who were present It may be noted, too, that Reed's testimony con-
tains no denial that he sought to ascertain the identity of the "instigator" from Rowlett,
and that he made a similar inquiry at the meeting, and that be testified that he could
not recall whether he asked the group "who started it (organization of the employees)
or how it got started"
REED 'S FUEL COMPANY 657
Kushlan. The latter stated that it had been "one of the boys," but asked again by
Reed to identify the individual, Kushlan declined to do so. Reed said he would "find
out sooner or later anyway."
Each of the inquiries by Reed, described above, including those made of Rowlett
and Herriges before the meeting in Reed's office, and of Kushlan thereafter, was an
act of interference with the right of self-organization guaranteed employees by Sec-
tion 7 of the Act. Reed's inquiry of Herriges whether he had a union button was but
another way of asking Herriges to reveal his union sentiments; and, obviously, Reed's
questions about the "instigator" in talking to Rowlett, and at the meeting that fol-
lowed, were of a piece with the palpably unlawful efforts by Reed to pry from Kush-
lan information as to the latter's membership in the Union and the identity of the
person who had "called" Kushlan to the meeting of May 2. Clearly, too, Reed's
questions about the "beef" or "gripes" were, in the context in which they were put,
inquiries into the employees' union sympathies and the reasons therefor. One may
note in that regard that Reed testified that he called the meeting "to find out why
the group went Union." There was no lawful justification for the course of inter-
rogation followed by Reed and, particularly against the background of other unfair
labor practices committed by him, to be described later, I hold that as a result of
each of the inquiries he made, whether of Herriges, Kushlan, or Rowlett, or at the
meeting of May 3, the Company interfered with the exercise of rights guaranteed
employees by Section 7 of the Act, and thereby violated Section 8(a)(1) of the
statute.
Within a day or two after Reed spoke to the employees as a group, the Company
informed them, by means of notices posted on a bulletin board at its establishment,
that in the future it would require employees to come to Reed for their paychecks;
and would discontinue the practice of granting loans to employees; selling fuel oil
to them at a discount; and contributing to welfare funds sponsored by the employees.
In his testimony, Reed put forward claims to the effect that the loan practice was
abandoned because the Company was financially unable to continue it; that the
paycheck procedure was changed because the prior informal practice was loose and
inefficient; and that policy of making contributions to welfare funds was discontinued
because the employees themselves appeared to have lost interest in collecting such
funds. None of these reasons, it may be noted, explains why the discount practice
was abandoned, but, in any case, there is good reason to conclude that the four policy
changes, reflected in the bulletin board notices, were a reprisal for the union or-
ganization that had taken place.
In the first place, the timing of the changes, coming as they did but a few days
after the organizational meeting of the employees, and but a day or two after Reed
plied them with questions in his office about their union activity and attitudes, sup-
ports an inference that the Company made the policy changes because employees
had evinced an interest in union organization. Reed was hard put to explain the
coincidence in timing , for when asked to account for the fact that the notices were
posted only a day or two after the meeting in his office, he testified: "I don't actually
know, other than probably feeling that we were going into negotiations [with the
Union], no doubt; cost, probably of operating was going to go up; and this was one
way probably of picking up some loose ends, maybe." This testimony of itself, albeit
it has an evasive flavor, warrants the view that the union organizational activity was
at the root of the changes. Second, the Company in its answer offers to restore the
former policies "retroactively," and this tends to negate the claim that financial or
administrative considerations were at the bottom of the changes. Third, any doubt
about the matter, if any remains, is removed by an admission by Reed in his testimony
to the effect that the organizational activity among the employees led him to post the
notices announcing the policy changes. In sum, by each of these changes, the Com-
pany discriminated against employees with respect to terms or conditions of their
employment in order to discourage membership in the Union, thereby violating
Section 8(a)(3) of the Act; and interfered with, restrained, and coerced employees
in the exercise of their Section 7 rights, and thus violated Section 8 (a) (1) of the Act.
About the beginning of July 1961, the Company discontinued the practice of
paying each driver a $5 bonus for each month in which he was free of accidents.
No notice was given the employees of this policy change. It was evidenced by the
omission to pay any bonus at the beginning of July for the preceding month. Reed
testified that union organization among the employees had no connection with the
discontinuance of the bonus practice, and that the change was brought about because
the Company's financial condition did not warrant continuance of the bonus policy.
The fact that I have been unable, for the reasons stated to credit a similar claim
as the reason for the change in the loan policy does not inevitably lead me to the
same result with the testimony under consideration. For one thing, the discontinu-
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance of the bonus practice was substantially more remote in time from the union
meeting at which the employees were organized than were the other policy changes.
Reed 's claim that his business was at a "low ebb" in May and June 1961 is given
substantial support by his business records which establish , without contradiction,
that his receipts in those months from a major customer . Weyerhaeuser Timber Com-
pany ( also called Weyerhaeuser herein ), were substantially less than in comparable
periods in the 3 preceding years . Needless to say, the burden of proof is on the
General Counsel, and taking into account the time of the discontinuance of the
bonus payment practice , as contrasted with the timing of the other policy changes,
the evidence does not warrant a holding that it was union organization rather than
the Company 's financial condition that led it to discontinue the bonus payments.
Credible evidence establishes that on various occasions between the May 3 meet-
ing in Reed 's office and the election held several weeks later , Reed used unlawful
methods in seeking to induce employees to vote against the Union in the election.
On one such occasion , he told a driver, Floyd Baker , who was paid on a trip basis,
that if the latter favored the Company in the election , he would be given more haul-
ing trips , but that Baker's trips would be reduced , and an additional truck would be
used on Baker 's "run ," if he "went along with the Union ." Baker replied that he
would "let [Reed ] know." At a later date, Reed asked Baker for his answer, and
the latter was noncommittal again . Similarly, before the election , Reed told Her-
riges, who was paid on the same basis as Baker , to "forget about the Union," and
that if he did not do so, his trips would be reduced in volume, and an additional
truck would be used for the available work.3
The use of promise of benefit and threat of reprisal to induce Baker and Herriges
to abandon the Union was plainly unlawful , and as a result of each such statement
by Reed, the Company interfered with, restrained , and coerced employees in the
exercise of their Section 7 guarantees , and thereby violated Section 8(a)1) of the Act.
C. The alleged reduction in work available for Fletcher and Orcutt
Fletcher entered the Company 's employ as a driver in February 1957, and left
it voluntarily in September 1961 . Orcutt had a similar job with the Company, be-
ginning his employment in September 1955 and, like Fletcher, leaving voluntarily
in September 1961 . Basically, the work of both employees consisted of hauling saw-
dust and other timber remnants from various sawmills to Weyerhaeuser to be used
by the latter as fuel.
Orcutt attended the Union 's meeting of May 2, and signed a card on that occasion
authorizing the organization to represent him. Fletcher , as noted earlier, was a
member of the Union's negotiating committee.
There is no dispute that in most weeks during the summer of 1961, Fletcher and
Orcutt worked fewer hours than in most weeks before the union organizational
activity that took place in May 1961, thus according to the sense of the evidence,
earning relatively less during the summer in question than in other periods of com-
parable length . The Respondent's records , abstracts of which are in evidence, show
that during the summer of 1961 excluding vacation weeks ), both men worked
approximately 40 hours in most weeks , rarely exceeding that number, whereas they
worked substantially more in most weeks during a period of some 20 months prior
to the organization of the employees.
Reed explained the reduction with testimony to the effect that facilities at four
lumber producers , from whom fuel had been secured for Weyerhaeuser , were shut
down during the summer of 1961 ; and that during that period , the Company hauled
less fuel to Weyerhaeuser "than at any previous time."
The General Counsel , on the other hand , maintains that the reduction in hours
was a discriminatory reprisal for union activity . Supporting that view are the
threats by Reed , previously described , to reduce the volume of trips of Baker and
Herriges; and undisputed testimony by Orcutt that one day shortly after the May 3
meeting in Reed 's office, the latter told him that the Company "was going to have
to cut down . . . the hours until we got this think ironed out and started going
back again on normal " As Orcutt testified , Reed did not explain what he meant
by the allusion to "this thing." One may note, too, that the evidence does not
establish that Orcutt, unlike Fletcher, engaged in any greater union activity than to
s Findings as to Reed's remarks to Baker and Herrtges are based on the respective
accounts of the two drivers I do not credit a denial by Reed that he told any employees
that they would "suffer a reduction in work" if "they didn't promise to vote against the
Union " The contrary testimony by Baker and Herriges , which I credit, is given weight
by the evidence that the Company did, in fact , engage in reprisals against its employees
for union activity by withdrawing privileges and benefits.
1
REED 'S FUEL COMPANY 659
attend the meeting of May 2, as did all but a few of the Company's employees, and
sign an authorization card. In any event, even if one reads Reed's remarks as an
assertion to the effect that employees would be penalized in the event of unionization
with a reduction in work opportunities and, thus, of wages, the record does not
establish by evidence of preponderant weight that the reduced workweeks of Fletcher
and Orcutt were attributable to union activity rather than to the legitimate business
reasons advanced by Reed in his testimony.
In the first place, Reed's testimony regarding the shutting down of fuel supply
facilities at four lumber producers is uncontradicted, and I find his claim to that
effect to be the fact. Second, there is no evidence that anyone else did any hauling
that was available for Fletcher and Orcutt, and, indeed, Orcutt himself testified that
the same employees (estimated by him to be four in number) did the work in ques-
tion in 1961, and that he knew of none whose "hauling hours . . . increased" after
his "fell off." Third, Reed testified that on a number of occasions during the summer
of 1961 he asked Fletcher and Orcutt to work on Saturday, and that both declined.
This testimony is uncontradicted as far as Fletcher is concerned, and is supported to
some extent by Orcutt who conceded that he refused to work one Saturday during
the period in question (or, in other words, according to the sense of Orcutt's testi-
mony, he declined on the occasion in question to work "overtime" beyond the 40-hour
week). The evidence, in other words, credibly establishes that both Fletcher and
Orcutt themselves declined work opportunities made available to them by Reed, and
this tends to negate the claim that a discriminatory motive underlay their reduced
workweeks. Finally, there is the highly persuasive fact, as the Company's regularly
maintained records establish, that its income from fuel deliveries to Weyerhaeuser
for the months of May, June, July, August, and September, 1961 was substantially
less than the comparable 5-month period in each of the 3 preceding years .4 The sum
of the matter is that the evidence will not support a finding that Fletcher and Orcutt
were denied work for an unlawful reason.
D. The legality of Rowlett's discharge
Rowlett entered the Company's employ as a driver on January 7, 1959, and was
discharged by Reed on August 24, 1961, under circumstances to be described later.
Rowlett spoke to other employees in favor of the Union prior to and at the May 2
meeting; procured one or two union authorization cards before the meeting for use
by others; executed such a card at the meeting; wore a button given him there; and,
as noted earlier, was one of three employees on the Union's negotiating committee.
His role in the negotiations, like that of the other employee-members was passive,
the Union's business agent acting as the spokesman for the group in the meetings
with Reed.
On August 22, 1961, while on a hauling trip with a 1959 truck and trailer he
customarily drove for the Company, Rowlett experienced some difficulty with the
radiator of the truck. Upon his return to the Company's parking area from the
trip, having previously reported the radiator malfunction to the Company's me-
chanic, Rowlett, upon Reed's instruction, drove the truck to a repair shop, first
detaching the vehicle from the trailer. In unhooking the trailer, he noticed some
damage to the trailer 's lighting system . What had happened was that a plug from
which wires lead to the trailer's lights had become detached from a plug on the
truck, through which power for the trailer's lights is conducted from the truck, and
had been torn from the wires attached to it, exposing the wires which had sustained
some damage. Rowlett did not repair the damage, nor did he report it either to the
mechanic or to Reed or anyone else, although aware of a policy of the Company re-
quiring drivers to maintain the lighting systems of their vehicles, or, alternatively,
if they could not make the repairs themselves, to report the need for repairs to the
Company's mechanic or to the management.
The truck's radiator underwent repairs at the shop to which it had been taken and
the vehicle was returned to the Company's premises on August 24. Rowlett, mean-
while, had been using another truck.
On August 24, another driver, while engaged in hooking the truck to the trailer
preparatory to using the equipment to haul a load of lumber, noticed the damage to
the trailer's lighting system. The Company's mechanic then repaired the defect, in
the process repairing breaks in the wiring, and making certain that the wires were
' The Company's gross income from Weyerhaeuser for the 5-month period in 1961 was
$13,770 50 as compared, for comparable periods, with $17,544 in 1960 ; $42,490 in 1959 ;
and $23,401 25 In 1958.
641795-63-vol. 136-43
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
connected to the appropriate lights. According to uncontradicted testimony by Reed
and the mechanic , the work took several hours.
Reed spoke to Rowlett that same day, following discovery of the lighting system
damage, and asked him why he had not reported the defect. Rowlett, according to
his account at one point , replied that it had slipped his mind . (Elsewhere , he testified
that he told Reed that drivers customarily repaired lighting systems themselves, that
it was impossible for him to repair the trailer lights while the truck was in the
radiator repair shop , and that he had "full intentions " of repairing the lighting
defect when the truck was returned to the Company 's premises .) According to
Reed, Rowlett's reply was that he "didn 't think it was of any importance ." In any
case, following Rowlett 's reply , Reed told him that he was discharged.
The General Counsel claims that Rowletts failure to report the damage to the
lighting system has been used as a pretext to discharge him, and that the real reason
was his union activity . I do not believe that this claim is established by the pre-
ponderance of the evidence . It is a basic fact that Rowlett did violate a rule of
the Company by his failure to report the damage to the lighting system , and one
would have to find more than the record provides to hold that the Respondent has
seized upon Rowlett 's omission as a cloak for an unlawful motive .5 To be sure,
Rowlett 's membership on the Union 's negotiating committee would reasonably
lead Reed to regard him as a leading adherent of the Union , but this is not of itself
enough to overcome a permissible inference that he was discharged because of his
omission , as the Company claims , particularly if it be borne in mind that like the
other employee -members of the Union 's negotiating committee , Rowlett played a
passive role during the negotiations ; that the other employee-members on the com-
mittee were not discharged ; and that the evidence does not establish that Company
otherwise discriminated against them . I am also unpersuaded by the fact, stressed
by the General Counsel , that the discharge came on the day following a strike vote
taken at a meeting attended by 14 of the Company 's employees at the Union's head-
quarters . (Eight employees voted in favor of a strike , and six voted against it.)
Rowlett admittedly did not participate in the discussion at the meting that preceded
the vote ( it does not even appear that he was among the bare majority - that voted
in favor of the strike ); and to say that he was singled out for discharge because of
the vote rather than for his infraction of the Company 's rule would be to guess one's
way into a conclusion . This course is forbidden the factfinder . I hold , in short,
that the General Counsel has failed to carry his burden of proving that Rowlett's
discharge was unlawful.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic, and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Company has engaged in unfair labor practices violative
of Section 8(a)(1) and ( 3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative actions designed to effectuate the policies of
the Act. As I have found that the elimination of the discount on purchases of fuel
oil was discriminatory and unlawful , I shall recommend not only that the Company
reinstate the discount and other privileges and benefits unlawfully withdrawn, as
found above , but that it pay each employee who has purchased fuel oil from the
Company since the discontinuance of the discount privilege a sum equal to 5 percent
of the purchase price of each purchase of fuel oil by each such employee between
the date of discontinuance of the privilege and its restoration , as provided in the
recommendations to be made below.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding , I make the following:
CONCLUSIONS OF LAW
1. The Union is, as has been at all times material to the issues in this proceeding,
a labor organization within the meaning of Section 2(5) of the Act.
8 There is much minutiae in the record about prior defects in the equipment driven by
Rowlett. This evidence appears to me to be immaterial , particularly bearing in mind
REED 'S FUEL COMPANY 661.
2. The Company is, and has been at all times material to the issues in this pro-
ceding, an employer within the meaning of Section 2(2) of the Act.
3. By discriminating against employees with respect to terms or conditions of
employment, as found above, the Company has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (3) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of
rights guaranted in Section 7 of the Act, as found above, the Company has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The evidence does not establish that the Company has violated any of the
provisions of the Act by withholding work from employees; eliminating the practice
of paying a bonus to drivers for months in which they had no accident; and dis-
charging Percy Rowlett.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this proceeding, I recommend that the Respondent, Reed's
Fuel Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership of any of its employees in International Wood-
workers of America, Local Union 3-246, AFL-CIO, or in any other labor organiza-
tion, by withholding, withdrawing, curtailing, or discontinuing any privilege or bene-
fit, or by discriminating in any other manner against any employee in regard to his
hire, tenure of employment, or any term or condition of employment, except as
authorized by Section 8(a)(3) of the Act.
(b) Interrogating any employee with respect to any employee's activity, mem-
bership, or interest in any labor organization in a manner constituting interference,
restraint, or coercion in violation of Section 8(a) (1) of the Act.
(c) Promising, offering, or otherwise holding out any benefit to any employee in
order to influence any employee's attitude toward any labor organization, or to
discourage any employee from membership in, or any activity on behalf of, such
an organization.
(d) Threatening or otherwise informing any employee that his employment
opportunities or any terms or conditions of employment will be changed in order to
influence any employee's attitude toward any labor organization, or to discourage
any employee from membership in, or any activity on behalf of, such an
organization.
(e) Withholding, withdrawing, curtailing, or discontinuing any privilege or bene-
fit of any employee, or any other term or condition of employment of any employee.
as a reprisal for, or in order to influence, any employee's attitude toward any
labor organization, or to discourage any employee from membership in, or any
activity on behalf of, such an organization.
(f) In any other manner interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in Section 8(a)(3)
of the Act.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Forthwith reinstate the practices and policies of granting personal loans to
employees, distributing paychecks to them, joining with employees in contributing
to sickness or accident benefits for employees, or to funeral expenses incurred for
any employee or his family, and selling fuel oil to the employees at a 5 percent dis-
count, in the form and to the extent that such practices and policies existed on and
prior to May 2, 1961.
(b) Forthwith pay to each employee who has purchased any fuel oil since the
discontinuance of the practice of giving employees a 5 percent discount on fuel oil
they purchase from the Company a sum equal to 5 percent of the purchase price
that the issue here is not whether Rowlett was responsible for the damage to the lighting-
system, but whether he was dismissed for his failure to report it, as required by stand-
ing management policy, or for his union activity and sentiments.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paid the Company by such employee for each purchase of fuel oil he has made from
the Company between the date of discontinuance of the discount practice and the
date of its restoration.
(c) Preserve until compliance with any order in this proceeding for payment of
discounts withheld from employees is effectuated, and make available to the National
Labor Relations Board, and its agents, upon request, for examination and copying,
all sales and other records reflecting any purchases of fuel oil to employees between
the discontinuance of the practice of giving employees a discount on such purchases
and the reinstatement of such practice.
(d) Post at its place of business in Springfield, Oregon, copies of the notice at-
tached hereto marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director of the Nineteenth Region of the Board, shall, after being signed
by a duly authorized representative of the Company, be posted by it immediately
upon receipt thereof, and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the said Company to insure
that said notices are not altered, defaced, or covered by any other material.6
(e) Notify the said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report and Recommended Order, what steps the said Company
has taken to comply therewith?
It is also recommended that so much of the complaint be dismissed as alleges
that the Respondent violated the Act by withholding work from employees; eliminat-
ing the practice of paying a bonus to drivers for months in which they had no
accidents; and discharging Percy Rowlett.
It is further recommended that, unless on or before 20 days from the date of this
Intermediate Report and Recommended Order, the Respondent notifies the said
Regional Director, in writing, that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the Respondent
-to take the action aforesaid.
In the event that these recommendations are adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice In the additional event that the Board's Order Is enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of
the United States Court of Appeals, Enforcing an Order" shall be substituted for the
words "Pursuant to a Decision and Order."
In the event that these recommendations be adopted by the Board, paragraph 2(e)
thereof shall be modified to read: "Notify said Regional Director, In writing, within 10
days from the date of this Order, what steps the Respondent has taken to comply
therewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership by any of our employees in Inter-
national Woodworkers of America, Local Union 3-246, AFL-CIO, or in any
other labor organization, by withholding, withdrawing, curtailing, or discon-
tinuing any privilege or benefit of any employee, or in any other manner dis-
criminating against any employee in regard to his hire, tenure of employment,
or any term or condition of employment, except as authorized by Section
8(a)(3) of the said Act.
WE WILL NOT interrogate any employee with respect to any employee's
activity, membership, or interest in any labor organization, in a manner con-
stituting interference, restraint, or coercion in violation of Section 8(a)(1) of
the said Act.
WE WILL NOT promise, offer, or otherwise hold out any benefit to any em-
ployee in order to influence any employee's attitude toward any labor organi-
zation, or to discourage any employee from membership in, or any activity on
behalf of, such an organization.
WE WILL NOT threaten or otherwise inform any employee that his employ-
ment opportunities or terms or any conditions of employment will be changed
in order to influence any employee's attitude toward any labor organization,
or to discourage any employee from membership `in, or any activity on behalf
of, such an organization.
SAM THE WINDOW MAN 663•
WE WILL NOT withhold , withdraw, curtail, or discontinue any privilege or
benefit of any employee , or any other term or condition of employment, as a re-
prisal for , or in order to influence , any employee 's attitude toward any labor
organization, or to discourage any employee from membership in, or any
activity on behalf of , such an organization.
WE WILL NOT in any other manner interfere with , restrain , or coerce em-
ployees in the exercise of their right to self-organization , to form , join, or
assist any labor organization , to bargain collectively through representatives
of their own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any
or all such activities , except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of em -
ployment , as authorized in Section 8 (a) (3) of the said Act.
WE HEREBY NOTIFY our employees that our practices , and policies of granting
loans to employees , distributing paychecks to them, joining with employees in
contributing to sickness or accident benefits for employees, or to funeral
expenses incurred for any employee or his family , and selling fuel oil to em-
ployees at a 5 percent discount have been reinstated and are now in effect to
the same extent and under the same conditions as they existed on and before
May 2, 1961.
WE WILL pay each employee who has purchased fuel oil from us since the
discontinuance of the practice of giving a 5 percent discount to employees for
such purchases , a sum of money equal to 5 percent of the purchase price paid
the Company by such employee for each purchase of fuel oil made by him
between the date of discontinuance of the discount practice and its restoration.
All our employees are free to become or remain or refrain from becoming or
remaining members of any labor organizaiton , except to the extent that this right may
be affected by an agreement in conformity with Section 8(a) (3) of the National
Labor Relations Act.
REED's FUEL COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must.not be
altered, defaced , or covered by any other material.
Aluminum Screen and Window Co., Inc., d/b/a Sam The Window
Man and Brotherhood of Painters, Decorators and Paper-
hangers of America , Glaziers Local 1241, AFL-CIO. Case No.
17-CA-17925. March 29, 196
DECISION AND ORDER
On September 13, 1961, Trial Examiner A. Bruce Hunt, issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
136 NLRB No. 62.