Selox, Inc.

National Labor Relations Board - Board Decisions

Jan 20, 1976

222 N.L.R.B. 497 (N.L.R.B. 1976)

SELOX, INC. 497
Selox, Inc. and Teamsters, Chaufferus , Helpers &
Taxicab Drivers, Local Union 327, affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen & Helpers of America. Case
26-CA-5576
January 20, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
charged employees were discharged for engaging in union
activities; and that such conduct on the part of the Re-
spondent constituted a violation of Section 8(a)(1) and (3)
of the Act. The Respondent filed an answer admitting that
it discharged the two employees but denied that it did so
because they were engaged in union activity.
The hearing in the above matter was held before me in
Nashville, Tennessee, on September 9 and 10, 1975. Briefs
have been received from counsel for the General Counsel
and counsel for the Respondent, respectively, and have
been carefully considered.
Upon the entire record in this case and from my obser-
vation of the witnesses, I hereby make the following:
On November 5, 1975, Administrative Law Judge
Elbert D. iGadsden issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Selox, Inc., Nashville,
Tennessee, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order.
1 In sec III, E, of his Decision, the Administrative Law Judge states that
Emily HudsonI Respondent's secretary, received a complaint from a dentist
on April 1, 1975, concerning a promised delivery, whereas the record clearly
shows that such complaint was received by Hudson on April 21, 1975. This
apparently inadvertent error, however, does not affect the results of our
decision herein.
FINDINGS OF FACT
1. JURISDICTION
Respondent is now, and has been at all times material
herein, a corporation doing business in the State of Ten-
nessee, with an office and place of business located in
Nashville, Tennessee, where it is engaged in manufacturing
and selling industrial gases and industrial equipment.
During the past 12 months Respondent, in the course
and conduct of its business operations, purchased and re-
ceived at its Nashville, Tennessee, location, products val-
ued in excess of $50,000 directly from points located out-
side the State of Tennessee, and, during the same period of
time, sold and shipped from its Nashville, Tennessee, loca-
tion, products valued in excess of $50,000 directly to points
located outside the State of Tennessee.
The complaint alleges, the Respondent does not deny,
and I find that Respondent is 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, the answer does not deny, and I
find that Teamsters, Chauffeurs, Helpers & Taxicab Driv-
ers, Local Union No. 327, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, herein called the Union, is now and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Upon a
charge filed on April 25, 1975, by Teamsters, Chauffeurs,
Helpers & Taxicab Drivers, Local Union 327, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, herein called the
Union, a complaint was issued on July 11, 1975, against
Selox, Inc., herein called the Respondent. The complaint
alleged that the Respondent discharged two of its employ-
ees and thereafter informed other employees that the dis-
A. Background
Selox, Inc., Respondent herein, is engaged in the manu-
facture and sale of industrial gases such as: oxygen, nitro-
gen, acetylene, argon, and Coe, etcetera. Such gases are
bottled in metal cylinders of various sizes and weights and
are stored at the Respondent's warehouse for ready deliv-
ery. At its Nashville location Respondent employes sales-
men who contact and establish accounts with, various in-
dustrial operations, hospitals, and private dentists for the
periodic supply of one or more of its gas products. The
salesman responsible for establishing an account receives a
commission on each order of gas supplied to the user (cus-
tomer).
222 NLRB No. 79
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The frequency of gas requirements vary from one cus-
tomer to another on a weekly to monthly basis for deliver-
ies. Some accounts require installing the gas cylinders on
manifolds (a mechanism which holds several cylinders at
one time until the gas contents therein are exhausted on
one side, at which time it is closed down and the other side,
holding the same quantity of cylinders, is then opened for
use). When one side of the manifold is nearly or completely
exhausted, the user (customer) usually places an order by
telephone to the Respondent for a new supply of the prod-
uct. At this point, the Respondent's policy is to write the
order on an order clipboard for the attention of the truck-
loaders, and then for the truckdrivers, who deliver and in-
stall the new supply and pick up the empty cylinders.
Although the Respondent has accounts to be supplied
which are out of the city and out of the State, it also has
many accounts to be supplied with gas within the city or
just outside the city of Nashville, serviced by a city route
truckdriver. The Respondent also has some customers who
walk into its facility and carry their supply with them. The
Respondent's operation and work force also include a ship-
ping and receiving department along with a shipping and
receiving clerk, men who simply pump gas and do other
odd jobs, and a secretary or clerical staff which processes
the orders, shipping orders, invoices, and receive customer
complaints.
Employee Harry Newkirk was hired by Respondent on
December 4, 1973, as a truckdriver with an out-of-town
route at a salary of $450 per month. Upon Newkirk's re-
quest, Respondent thereafter assigned him to an inside job
as coordinator in the receiving and shipping department, at
a salary of $650 per month. Thereafter, Newkirk was made
clerk and supervisor of all personnel except managerial
and clerical staff at a salary of $750 per month.
Specifically, Newkirk's duties included receiving call-in
orders from customers, serving walk-in customers in the
absence of salesmen or other managerial personnel, receiv-
ing customer complaints, taking requisitions, coordinating
the receipt and shipment of all stock and equipment, and
supervising all dockworkers, truckdrivers, and warehouse-
men.
On or about October 1, 1974, Butch Greenway, the city
route truckdriver, was relieved of that position, according
to Respondent, for having had too many truck wrecks and
was thereupon transferred to warehouse work and assisting
on nondriving deliveries. Respondent then assigned New-
kirk as city route truckdriver which Newkirk accepted be-
cause he could earn more money with a salary of $450 per
month plus commissions. Newkirk served in this capacity
until he was discharged by Respondent on April 21, 1975.
Rubin Carny Walker was hired by Respondent in about
mid-March 1975, and first worked with Newkirk on the
city route for about 2 weeks and was then assigned by
Supervisor Adams as truckdriver of an out-of-town route.
He worked in that capacity until April 21, 1975, when he
was discharged by the Respondent.
Respondent admits discharging both Newkirk and
"Walker on April 21, 1975. However, Respondent maintains
that it discharged both employees for cause and not for
union activity, as alleged by the Union.'
B. Work History of the Dischargees
Dischargee Harry Newkirk testified that, while serving
as city route truckdriver, he noted that the route deliveries
were increasing by approximately five a month, and he
thereupon apprised Supervisor Joe Adams about the need
for someone to help him change manifolds and make spe-
cial runs in and out of the city; that Supervisor Adams, on
Newkirk's recommendation, authorized him (Newkirk) to
hire someone and Newkirk hired his cousin, Rubin Carny
Walker, in mid-March 1975. With respect to the capacity
in which Walker was hired, Newkirk testified as follows:
A. Adams told me, and also told Walker, that
Walker would be working directly under me in the city
route, helping me change manifolds, helping me with
my customers. If I was caught up, then Carny would
do odd jobs, would pump carbon dioxide at the plant;
or if a customer called in and needed an order out of
town that wasn't on my route, Joe Adams would ask
me if he could use Carny Walker to make a special
delivery to another customer.
Q. Did you discuss with Mr. Adams the possibility
of Mr. Walker working in any other position?
A. No. At that time, that was all there was. He was
working with me.
In this same regard, Rubin Carny Walker testified that
he had asked Newkirk if there were any job openings at the
Respondent's plant and when Newkirk told him there was
a job opening and asked him to come to the plant, he,
Walker, declined the job because he lacked confidence in
his ability to do the job. However, after, being encouraged
by Newkirk that he could do the job, he changed his mind
and accepted the job upon advice from Newkirk and Su-
pervisor Adams that he would be helping Newkirk make
deliveries and pumping CO2 in the storage room. He said
he understood this to mean that Newkirk was his boss (su-
pervisor). Walker reported to work on Monday and pro-
ceeded to work with Newkirk loading and unloading the
trucks and making deliveries for $2.85 an hour. The testi-
mony of Newkirk and Walker is corroborated in part by
Emily Hudson, secretary for the Respondent, who testified
that she heard Supervisor Adams tell Newkirk to hire
someone to help him and that he (Newkirk) would be re-
sponsible for such person. However, Supervisor Joe Adams
testified that he gave Newkirk authority to hire Walker but
he denied that Walker was hired as a helper to Newkirk
but rather, simply assigned to work with Newkirk on a
training basis.2
Based on the foregoing credible evidence of record, I
hereupon conclude and find that Rubin Carny Walker was
i The facts set forth above are undisputed and are not in conflict in the
record.
2 1 credit the testimonial versions of Harry Newkirk. Emily Hudson, and
Rubin Carny Walker over that of Supervisor Joe Adams, regarding the
capacity in which Walker was hired, not only because their versions are
consistent and because I was persuaded that they were testifying truthfully.
but also because of the uncertain and evasive manner in which Supervisor
Adams testified on this issue The uncertain and untruthful manner in
which he testified is partially reflected on the record It is also particularly
noted that Newkirk's and Walker's versions are supported by Respondent's
own secretary, Emily Hudson, who is still in the employ of the Respondent
SELOX, INC. 499
initially hired to assist Harry Newkirk on his city truck
route and to make special runs on special orders from
Newkirk or Supervisor Adams.
C. The Work Performance of the Dischargees
Harry Newkirk further testified that on Walker's second
day at work, Supervisor Adams told Walker he would be
working with Newkirk as his helper on the city route. New-
kirk used Walker to do manual labor but not the paper-
work (completing shipping orders, etc.). After about 2
weeks on the job, Supervisor Adams asked Newkirk did he
think Walker was ready to take over an out-of-town route
on his own, and Newkirk replied, "No, he is not ready for
it." Adams then said he had an opening coming up and
would have to put Walker in it. At this time Walker had
only made one out-of-town delivery to a Dr. Cherry. Ran-
dy Stern, who was then an out-of-town driver, then became
Newkirk's helper. However, Stern rode with Walker for
about a week while he (Newkirk) had no help- Thereafter,
Newkirk said he had only the intermittent help of Stern
although there were times when he asked Adams for
Stern's help and Adams told him he could not spare Stern.
Consequently, Newkirk said he got behind in his route be-
cause he could not service all of his customers.
Emily Hudson, secretary for Respondent for the past
3-1/2 years, testified that she received call-in orders from
customers and customer complaints. She further testified
that occasionally Respondent cannot service its customers
on the day requested by the customer even though Respon-
dent might have promised the customer to do so; that
sometimes deliveries are not made due to lack of supply of
the product in stock, failure of the truckdrivers to call in, or
the fact that the driver's load is too heavy to service all
scheduled deliveries or to make delivery on time. With-re-
spect to Newkirk's work performance, Emily Hudson said
Respondent has had about six city route drivers during her
work tenure with Respondent, and that, in her opinion,
Newkirk was a very good driver who rarely missed a cus-
tomer; that he would even respond to a call at home, re-
turn to the plant and make the delivery; that most of the
other city route drivers were, in her opinion, inadequate;
and that when Newkirk was discharged (April 21, 1975)
there were many comments from salesmen and other em-
ployees that Newkirk will be hard to replace. Contrary to
the testimony of Supervisor Joe Adams, she also stated that
she did not notice any increase in customer complaints
during the last 2 months of Newkirk's employment with
Respondent, but' she did hear Supervisor Adams tell New-
kirk to pick up the empty cylinders at Carbonic Industries
which Newkirk said he did not have a chance to pick up.
Among some of the accounts which Newkirk serviced
was Nashville Bridge Company, which required deliveries
at least once a week. Technically, Nashville Bridge is not
within the city but was nevertheless serviced by Newkirk as
a city route truckdriver at Adams' request. According to
the testimony of both Newkirk and Emily Hudson, Nash-
ville Bridge Company was the source of frequent com-
plaints with respect to timely delivery and pickups.
Other customer complaints about which Newkirk and
Supervisor Adams testified were: Nashville Auto-Diesel
College, which called on April 7, 1975, complained about
not having received an order of acetylene. Newkirk testi-
fied and Respondent's records verify that the Nashville
Auto-Diesel College order was placed on April 7, 1975
G.C. Exh. 3) and that Newkirk made delivery on said order
on April 9, 1975, which Newkirk said was not late or un-
usual. Moreover, Newkirk said the customer had not used
all of its supply of acetylene. According to Newkirk, on
Saturday, April 19, 1975, Riverside Hospital, the sales ac-
count of Bill Frazier, sales representative for the Respon-
dent, complained about a changeover of oxygen cylinders.
Investigation by Newkirk and Frazier at Riverside dis-
closed that the problem was one of communications, in
that they learned that the problem was lack of a designated
person to notify the Respondent when an additional order
of supply of oxygen is needed or when the manifolds are to
be changed. A person was then designated for that respon-
sibility by Riverside.
With respect to a complaint from Carbonic Industries
and Nashville Bridge Company about picking up empty
cylinders, Newkirk said invariably he was unable to service
these customers because of his heavy city route load, be-
cause Carbonic Industries was closed when he stopped
there on two occasions, and because of a defective tailgate
on the delivery trucks.
About a month before his discharge, Newkirk testified
that Respondent received a complaint from McDougal
Company about late deliveries. He (Newkirk) had left, the
plant with a load about 8 o'clock on that morning. When
he arrived to make his delivery at McDougal, about 2
o'clock, he was asked where had he been. Newkirk said he
then asked what do you mean, and he was informed by the
McDougal representative that the order was called into
Respondent between 8:30 and 9 a.m., and he was advised
by Respondent that delivery would be made within 30 min-
utes. Newkirk said he did not know about the complaint
and when he returned to the plant that afternoon Supervi-
sor Adams asked him, "Did you catch McDougal," and he
told Adams "Yes," and that Adams said, "I'm glad" or
"That's great." McDougal was the account of sales repre-
sentative Bill Slate, and Newkirk recalls one occasion when
McDougal ordered a special gas which Respondent did not
have in stock and could not deliver immediately; that an-
other welding supply company in the city provided the gas
ordered by McDougal; and that sales representative Slate
thereafter reduced his price of the gas to the level of that
competitor. Newkirk thought Respondent had retained the
McDougal account but Respondent testified that the ac-
count was terminated.
Newkirk recalled another complaint from Parkview
Hospital about which he testified as follows:
First I asked Emily Hudson, what was the problem
with this. She said that the customer had called, com-
plaming that he had not received his order, and he
wanted to quit the account, and he wanted us to pick
up the empties. And I told her that I hadn't remem-
bered seeing an order for Parkview Hospital. I then
checked the call-in pad. We made a copy of the call-in
cards and held them for a period of about a month. I
checked these copies, and I couldn't find one for
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Parkview Hospital for liquid nitrogen. I told Adams
about this, that I couldn't find one. I don't remember
if he and I both checked. But I do remember that I
checked. He may have checked with me. Anyway, I
couldn't find one for Parkview Hospital. I later went
out there and picked up the empty cylinders, and tried
to talk to them. But they said to forget about it. So I
picked up the empty cylinders. The cylinder still had
about a quarter of a tank of liquid nitrogen in it.
Newkirk further testified that, while he was city truck-
driver, he used three trucks, a pickup truck which was nev-
er in good condition, and two large trucks, both of which
had tailgate problems and one had a bad bed problem. The
tailgate problems prevented him from delivering the larger
liquid cylinders which can weigh as much as 700 pounds
and have to be lowered to the ground by elevated tailgate.
He did not have to use the tailgate to deliver acetylene
(manifolds) to the Nashville Bridge account, although he
did deliver some CO2 cylinders when emptied. He reported
the tailgate problems to Supervisor Adams on several occa-
sions and Adams would tell him to take it to B & J Repair
Service, or he would tell Newkirk the Respondent was in
the process of purchasing two new trucks for $24,000 each,
and that it did not want to spend too much money on
repairs.
Newkirk admitted that he was instructed by Joe Adams
to pick up empty cylinders from Carbonic Industries and
he gave the following account of that incident:
A. I don't remember the date that it happened, but
it was the end of March, I believe. We had a big flood
here in Nashville. And Selox was hurt pretty badly. By
that I mean their CO2 pump, I'll just say CO2 pump,
was broken down and got flooded- out, and the water
was about this high. The CO2 pump was under water.
Q. How high is that-the record won't show it.
A. Three feet, three feet high. The water came' up
three feet high. Sor our CO2 pump was down, and we
couldn't pump CO2. There was a company in town by
the name of Carbonic Industries, that we purchased
bulk CO2 from. They also had a CO2 pump to pump
little cylinders that we used for individual accounts.
We delivered, I don't know how many cylinders over
there,, I would take a guess at about 20 cylinders deliv-
ered over there to Carbonic Industries, to take care of
some of our customers, because we didn't have any
full ones, and for the few days that the pump was
being repaired. I helped a guy deliver them over there.
This was not a city route job. This was not my job. I
did not receive commission for it or anything. But I
helped a guy deliver the tanks over there. And a few
days later, Joe Adams told me, like within a week lat-
er, Joe Adams told me to go back and pick up the rest
of the cylinders that had not been picked up. He only
pumped, I don't know how many pumped, how many
cylinders he pumped out of those 20, I'm just saying
20.
Q. You don't know how many was left over there?
A. I don't know how many were left over there. I
told him I would. I never got around to it. I was al-
ways in some other part of town. There's no other
customer around there. It was not a priority thing, I
felt like, customers should come first on making deliv-
eries. So I made all my customers first. And at the end
of the day, there was not enough time. The day I was
fired, I did go by over there. I had made all my deliv-
eries first. It was my next thing to do. I went over
there, but they had already closed.
Regarding the Nashville Bridge Company account,
Newkirk testified as follows:
I think Joe Adams told me that he liked for me to
have that job.
Q. What job?
A. The job of city route. And he would give me the
Nashville Bridge account, but I would not be responsi-
ble for changing the manifolds. Nashville Bridge,
Nashville Auto-Diesel College, McKan Stell, National
City-these are all manifolds, these four, but I would
not be responsible for what happens to them. I would
help out from time to time, but he would get another
driver. He was going to try to hire Ronson Roberts to
take over that job.
Q. You didn't answer my question. You don't know
what he was going to do?
A. He told me he was going to do that.
Newkirk further testified that the Respondent's commis-
sion report admitted into evidence as General Counsel's
Exhibit 2, as corrected, shows some of his accounts which
he serviced but not all of them. The Respondent was not
able to refute Newkirk's statement in this regard because it
could not establish that the commission reports reflected
each and every single customer serviced by Newkirk and it
included some accounts which were not serviced by New-
kirk.
Rubin Carny Walker testified that he worked with New-
kirk for about 8-1/2 days, loading, unloading, and deliver-
ing, but that he did no paperwork although he watched
Newkirk complete paperwork. Thereafter on that Friday,
Supervisor Adams asked him what he thought about hav-
ing his own truck route and he replied he did not know
much about it and would probably mess up on it; and that
Adams then said, "Yes, you sure are going to mess up on
it"; that he (Walker) said he was going to make a lot of
mistakes and Supervisor Adams agreed with him, saying
everybody makes mistakes including himself when he first
came there. He was told by Adams that if he took the job
he would probably double his salary in a couple of months.
Walker then said he would give it a run but he was afraid
of it because he was afraid he might mess up. Walker had
made only four deliveries by himself at that time and had
completed the paperwork on two, with the assistance of
Newkirk on one and with the assistance of salesman Toby
on the other. He received no complaints about his work
performance before he got his own truck route. He started
at a salary of $2.85 an hour and was given a raise to $3 per
hour when he started his own truck route, 6-1/2 or 8-1/2
days later. Walker said he reported truck malfunctions to
Supervisor Adams after his first run on the truck route and
that Adams told him not to worry about it that the Re-
spondent was getting a new truck in a few days. He admit-
SELOX, INC.
ted that, since taking over the truck route, Supervisor Ad-
ams told him he would have to improve on his handwriting
in completing the shipping orders. About a week and a half
after he started on the truck route, Adams asked him to
explain a zero he had inserted on one of the orders. In fact,
Walker said the conversation was as follows:
A. He said, "Where did you fill this shipping order
out, driving down the road?" And I said, "Yes, as a
matter of fact I did."
Q. Did he say anything else?
A. He just laughed and shook his head and walked
off.
Secretary Emily Hudson testified that she had problems
with Walker's shipping orders. She stated that he was not
good at paperwork and she reported the problem to Adams
on several occasions and they, Adams and herself, dis-
cussed it with Walker; and that Adams talked with Walker
about his illegible handwriting and inaccurate paperwork
on four or five occasions. However, she does not recall
Adams ever mentioning discharging Walker. Miss Hudson
further testified that on April 21, 1975, the following tran-
spired:
Q. Was there any discussion that day, any discus-
sion with Mr. Adams about Camy Walker, on that
particular day, the 21st?
A. Yes.
Q. Would you tell us about this, please?
A. I was quite upset. I had got a group of shipping
orders, like maybe four or five, that Mr. Walker had
messed up, and I was a little bit upset about them. I
went in and talked to Mr. Adams about it. I told him
that we needed to sit down and train the guy to do it
right, and write the numbers and things down for him;
or do something else. Because the shipping orders
were getting to the point where it would take me quite
a while to straighten them out every time I ran into
them.
Thereafter, Supervisor Adams told her (Hudson) she
would not have any problems with Walker's orders after
that day (4-21-75) and later he told her to get Walker's
papers ready. She admitted that previously Supervisor Ad-
ams would get upset with Walker's paperwork perfor-
mance.
Supervisor Joe Adams testified that he sat down and
tried to instruct Walker on how to complete the shipping
orders on several occasions and had talked to him about
his poor paperwork.
D. Union Activity and Respondent's Knowledge Thereof
Harry Newkirk credibly testified that on or about Fri-
day, April 11, 1975, he and his cousin, Rubin Carny Walk-
er, were engaged in a conversation with a neighbor who is
a member of the United Parcel Service Teamsters Local
480, during which he explained to them the advantages of
the Union. On the following Monday, Newkirk said he
asked several employees what they thought about a union
and they said they thought it was a good idea. On Tuesday,
he called Corky Ellis, president of Local Union 327, who
501
told him to come by the union office and pick up some
authorization cards which he did. At that time, Ellis ad-
vised him to distribute the cards,_ have the employees sign
them and return them to him. Newkirk complied with these
instructions although some employees did not return the
cards. Harry Dotterer, Gary Davidson, and Ernie Gossett
did not want cards. Walker corroborated Newkirk's testi-
mony with respect to the initial conversation held with
Newkirk's neighbor about unions and he further testified
that on the following morning Newkirk privately men-
tioned to employees the discussions he held about the
Union the night before. Walker said he warned Newkirk to
keep quiet about it but Newkirk talked to other employees
about the Union.
Harold Dotterer, employed with the Respondent 5 years,
pumps argon and other gas mixtures. He credibly testified
that, about a week or 10 days before Newkirk was dis-
charged, Newkirk approached him at work and asked him
what he thought about the Union and he replied, "It's good
for some places but not for there, it's too small. They do
good things and bad things, like for instance, they cause
two of the railroads in our country to go bankrupt. And I
didn't like unions particularly for small places like that."
He further stated that Newkirk said the Union helped to
get rid of bad people and he said no, it keeps them there.
About 4 or 5 days later, Newkirk had a card and asked him
would he come down to the union hall and he said, "No,
sir."
Emily Hudson, secretary for the Respondent, testified
that on the morning of April 21, 1975, she reported to work
at 8 o'clock and noted that George Clark was not present.
She asked Supervisor Adams where was Mr. Clark and he
said Mr. Clark was in Chattanooga attending a meeting
with company officials and lawyers. Hudson's testimony in
this regard is as follows:
Q. Do you recall what Mr. Adams said?
A. He said he was in Chattanooga in a meeting
with Mr. Powell.
Q. Who is Mr. Powell?
A. The Treasurer of the Company. And Mr. White,
who is the President. And the Lawyers.
Q. Did he say-did he call any lawyers' names?
A. No sir.
Q. Did he say why he was in this meeting?
A. I didn't ask him at that time. He did tell me later
that Harry and Carny were involved in trying to bring
the Union in. And the Company didn't want it. And
that's what they were there to discuss.
Q. That's what Mr. Clark was in Chattanooga to
discuss that particular morning?
A. Yes sir.
On the same morning, April 21, Emily Hudson testified
that there were numerous telephone calls from the
Respondent's main office at Chattanooga and that, during
one of such calls, Joe Adams said he did not know any-
thing about the Union and he thereafter kept reassuring
the party to whom he was speaking that he did not know
anything about the Union. When he got off the telephone,
Adams told her (Hudson)' that Manager Clark said the at-
torneys knew about the Union. Subsequently, Clark told
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her during the lunch period that the attorneys knew about
the union thing that was going on and they understood
where Joe Adams stood. After Adams' telephone conversa-
tion, he came into her (Emily Hudson) office and accord-
ing to her testimony, the following conversation ensued:
He came into my office. I was working on some ship-
ping orders. And he came in. And leaned on this little
gadget thing I've got. And he said, "Emily, when did
you find out about the Union?" And I said, "This
morning when you told me." I said, "Since I was out
three days last week, I didn't hear any of the rumors."
So we talked for a second. And he said, "I'm going to
ask you again when you found out about the Union."
And I repeated my answer. And he said, "Okay, one
more time." And he said, "This time, I want to hear
the right answer." And I asked him what he wanted
me to say. And he said, "You're going to hear about
the Union tomorrow, after Harry's gone."
E. Respondent's Discharge of Walker and Newkirk
Supervisor Joe Adams credibly testified that on April 21,
1975, he received a telephone call from the Chattanooga
office complaining about problems with Walker's shipping
orders. His testimony in this regard is corroborated by the
testimony of secretary, Emily Hudson. Rubin Carny Walk-
er also credibly testified that after completing his deliveries
on April 21, 1975, he returned to the plant between 4 and
4:30 p.m. and Supervisor Adams told him he needed to
talk with him. Whereupon, Adams, salesman Toby, and
himself went into Manager Clark's office and the following
conversation ensued:
Toby came in and sat down. Joe Adams spoke up
and said, "It's sure been a rough day here today." And
I said, "I can't say that myself, it's been a-one of the
better days I've had since I've worked here for Selox."
And he said, "We've been having a lot of complaints
from Chattanooga about your handwriting. We're also
having complaints from customers who don't know-
they can't figure out what you're leaving them and
what you're picking up." And I said, "What's the al-
ternative?" And he said, "I'm going to have to let you
go." At that time he commented about the McKennan
Bridge incident. And I told him that I didn't know
how-nobody had ever told me about filling out for
cylinders-nobody had ever showed me how to do
that. And besides that, some of them-he had prom-
ised me that somebody would go with me on the first
two weeks and show me how to go from place to place
and fill out the paperwork, but he did not.
Q. No one went with you?
A. No sir, did not.
Q. Was anything else said in that conversation?
A. No sir. I buttoned up and went back there and
clocked out.
Q. Anybody?
A. He said that when I went to apply at my next
job, that he would give me a good recommendation,
because nobody could ask for any better worker than
I was. But he didn't think I would be suitable for that
route. And that was all that was said.
Walker identified and admitted making errors in com-
pleting' shipping orders marked Respondent's Exhibit 4, 5,
6, 7, 8, 9, and 10, dated 4-16-75, 3-25-75, 4-7-75, 4-9-75,
3-27-75, and 4-1-75, respectively, except that Exhibit 6
and 7 were thereafter corrected and voided by him and a
new order completed in substitution therefor. Walker fur-
ther testified that Adams spoke to him on one occasion
and Secretary Emily Hudson reluctantly spoke to him on
one occasion about errors and the, proper procedure for
completing shipping orders; and that on April 21, 1975,
Adams told him that some of his orders (paperwork) were
sent back from Chattanooga for errors. He said the only
erroneously completed shipping order he had seen prior to
April 21, 1975, was Respondent's Exhibit 4.
Although Walker testified that he did not know he was
employed on a 90-day probation period, he nevertheless
admitted that he completed the application for employ-
ment by Respondent and that he received and signed for a
copy of the Selox employee booklet, wherein paragraph 3
on page 18 provides as follows:
Hire, rehire, and reinstatement.
New and rehired employees are on probation for a
period of 90 calendar days from hiring or rehiring
date. During this period you will have an,opportunity
to learn first-hand about your job, and your supervisor
will be able to judge your ability and efficiency in
performing the type of work to which you have been
assigned. Upon successfully completing this proba-
tionary period, you are eligible to all rights and privi-
leges of a regular employee, with seniority dating from
the day you started work. At any time within the pro-
bationary period, employment may be terminated.
If an employee terminates of his own accord and is
re-employed, he will be considered a rehire, and for all
purposes is a new employee. If an employee is termi-
nated as a result of a lay-off and is re-employed within
six months immediately following the date of lay-off,
he shall be considered a reinstated employee, and re-
tains the seniority accumulated prior to the lay-off.
With respect to the discharge of Harry Newkirk, Secre-
tary Emily Hudson credibly testified that she received a
telephone call from a dentist on the morning of April 1,
1975, complaining that he had called Respondent earlier
that morning, or on the previous Friday, and had been
promised delivery of his order on Monday,. but Mr. New-
kirk had not been there. She reported the complaint to
Supervisor Adams who said there had been a lot of such
complaints within the last few days; that he had that den-
tist call in and he had to talk to Newkirk about it; and that
he was just going to have to let Newkirk go. Hudson said
she told Adams that Newkirk had been there a long time,
had been a good driver, and she asked him didn't he think
that he could just talk to Newkirk instead of firing him.
Adams then said, "No, it's not my decision" (meaning to
discharge Harry Newkirk). He said he had been told by
Chattanooga to fire Newkirk.
Harry Newkirk credibly testified that he reported to
work on April 21, 1975, and worked until about 4:30 in the
SELOX, INC. 503
afternoon. That when he returned to the plant at 4:30 p.m.,
Supervisor Adams told him that he wanted to see him.
Newkirk went into the office of Manager George Clark
where Supervisor Adams was sitting at Mr. Clark's desk
and Bill Slate came in and sat next to him in front of
Supervisor Adams, when the following conversation en-
sued:
A. Joe said something like, "It's been a rough day."
And I said, "Yes, I can imagine." I don't remember
what was said after that, but he-the next thing I re-
member his saying was, "We're going to have to do
something about the city route." I said, "What do you
mean?" Joe Adams said, "We've got customers com-
plaining a lot. They're complaining to George, and
George is complaining to me, and I can't have George
jumping my ass any more." I said, "Well; what do you
want me to do?" No, I didn't say that then. He then
said something like, "Some customers call up Hillis in
Chattanooga, and I have-I can't have Hillis jumping
me any more either."
Q. Who's Hillis?
A. Hillis is the Sales Manager or-he's George
Clark's boss. He's directly under the President of the
Company. He said, "I can't have Hillis jumping me
any more." I said, "What do you want me to do?" He
said, "I'm going to have to take you off the city route."
Newkirk further testified that Supervisor Adams did not
specify any particular customers who complained to him
except he asked about the empty cylinders he was to pick
up at Carbonic Industries and he (Newkirk) told him he
did not pick up the cylinders because the Carbonic Indus-
tries plant was closed. He said Adams then made the fol-
lowing remarks:
He said, "I'm going to have to take you off the city
route." And I said, "What do you want to do, I mean
what do you want me to do," meaning that before, he
had taken Butch Greenway off the city route and put
him into another position. I said, "What do you want
me to do?" And he said, "I'm just going to have to let
you go." I said, "Okay." And at that time, I was just
kind of shocked. I didn't know what to say. I just said,
"Okay." And I started to leave; because there was
nothing left I could do. But I sat there. And I then
asked him about unemployment, 'can I get unemploy-
ment. And he said, "I don't know. I'll check into it
tomorrow for you." I then made some kind of state-
ment like, "I want you to know, I'm doing the best
possible job I can do, and I'm working as hard as I
can, I can't do any better job than what I'm doing." I
said, "I think you're going to have a hard time finding
someone else to do as good a job as I've been doing."
Supervisor Joe Adams testified that he terminated Rubin
Carny Walker on April 21 for poor paperwork as previous-
ly stated, and that he discharged Newkirk on the same date
for poor service to Respondent's customers. He stated that
he was not aware of any union activity on the part of
Respondent's employees on April 21, 1975. However, on
the contrary, he testified that he received complaints of
poor service to Respondent customers from Parkview Hos-
pital, which terminated its account with Respondent;
Nashville Bridge Company, which placed its account on
probationary status with Respondent; and Riverside Hos-
pital, which also placed its account on probationary status
with Respondent. He further stated that he had received
customer complaints through salesman Bill Slate-on the
McDougal account, Hudson Frazier on the Parkview Hos-
pital account, and John Woods on the Nashville Bridge
account. Nevertheless, he testified that it was Newkirk's
attitude which ultimately led him to discharge Newkirk on
April 21, 1975. In this regard, he testified more specifically
as follows:
Q. Did you determine that you, did you decide to
terminate Mr. Newkirk prior to the time that you
talked to him?
A. No sir.
Q. When was the decision made to terminate Mr.
Newkirk?
A. Well, I was trying to talk to Harry about the
problems we were having, and trying to get some kind
of resolution to the problem trying to get it solved. He
told me that not only was he doing the best that he
could do, but he was doing probably a better job than
anyone else could do and I just had no choice at that
point.
Supervisor Adams also testified that a Mr. Marlin first
called Manager George Clark in March, complaining
about the poor service and, when he asked Newkirk about
Mr. Marlin's account, Newkirk said he did not have time
to get to him. The date of the call-in order was April 7,
1975, and Adams said he spoke to Newkirk and the order
was delivered April 9, 1975. On cross-examination Adams
admitted that Respondent had run out of acetylene on
three or four occasions. Although he previously stated that
he had received complaints about Newkirk's service from
Salesman Frazier, he could not remember the contents of
the complaint nor what he said to Newkirk. Adams also
said he told Newkirk several times to pick up the empty
cylinders from McDougal and that Newkirk's failure to do
so resulted in the loss of that account. After he discharged
Newkirk, Adams said he assigned Gary Davidson to re-
place him; that 3 weeks later he reassigned Davidson to
other duties and hired Gary Gotter who later quit to go to
sell health food, and he then hired Bill Webb and transfer-
red Gotter to a job in the back. In response to questions by
counsel for the General Counsel, Supervisor Adams said he
did not offer Newkirk a job in another part of the plant
because he did not have one; and that he did not transfer
him into the back where he reassigned Davidson and Got-
ter because Newkirk made between $800 and $1000 a
month and the jobs in the back pay only $2.85 an hour.
Adams stated that he has not had problems or complaints
of poor service since Newkirk's departure. However, secre-
tary Emily Hudson testified that since Newkirk's departure
there were about three persons to work the city route and
that Gary Gotter could not keep up with the workload.
Although Manager George Clark, and salesmen John R.
Wood, William (Bill) Slate, John Houston, Frazier, and Su-
pervisor Joe Adams all testified about various customer
complaints regarding poor service in delivery gases ordered
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the customers or the failure of the Respondent to pick
up empty cylinders, none of these persons, including Man-
ager Clark, were actually able to state, as a fact, that the
complaints were the fault of Harry Newkirk. Several of the
salesmen said they attributed the cause of the poor service
to Harry Newkirk but they could not state as a fact that
there was not a breakdown in communications between the
person placing the order and the person receiving the order
on the telephone; that there was no error or omission in
reducing the order to writing on the clipboard; that there
was no problem getting in touch with the city truckdriver
(Newkirk) during the day to inform him of the order or
complaint or that persons in the office neglected to tran-
scribe complaints received, over the telephone and to bring
them to the attention of Newkirk. The corroborated testi-
mony of Newkirk and Walker about the frequent defective
tailgates and other malfunctioning trucks of Respondent is
not disputed or refuted in the record.
Analysis and Conclusions
The evidence of record is abundantly clear that Rubin
Carny Walker was hired by Respondent to assist city route
truckdriver Harry Newkirk and work under his general su-
pervision. Although between 8 and 14 days later Walker
was transferred from Newkirk's supervision and assigned
to an out-of-town truck route by Supervisor Joe Adams,
the evidence does not show that the reassignment was dis-
criminatory (motivated by union activity of Walker) be-
cause there was no evidence of union activity by
Respondent's employees at that time. However, the evi-
dence amply shows that Supervisor Adams knew, should
have known, and/or was not significantly concerned about
Walker's deficient ability to perform the paperwork associ-
ated with the duties of an out-of-town truck route, because
both Walker and Newkirk had advised Adams of such fact
before he reassigned Walker.
Since the evidence is undisputed that Walker was con-
sidered a very good worker except for his paperwork per-
formance which Adams knew was inadequate, a crucial
question presented for determination herein is whether
Walker was discharged by Respondent on April 21, 1975,
for his unsatisfactory paperwork performance, or for his
recent participation in union activity. In addressing this
question, it is first observed that Supervisor Adams was
aware of Walker's ineptness to perform paperwork not
only by his unsatisfactory performance of the same, but
also by Walker's initial and candid admission that he
lacked confidence in his ability to do such work; that while
Walker's inadequate paperwork was known to Respondent
since approximatelyMarch 28, 1975, the evidence does not
show that he was ever given any serious training on how to
complete the shipping orders as was suggested by
Respondent's own secretary, Emily Hudson; that the is-
suance of any serious reprimand or warning (oral or writ-
ten) to Walker by Respondent prior to April 21, 1975, is
conspicuously absent on the record; and the fact that Re-
spondent made no effort to transfer what it called an other-
wise very good worker (Walker) to another position not
involving paperwork as it had transferred other employees
whose work performance was unsatisfactory in some re-
spect.
In other words, prior to April 21, 1975, the record of
Respondent's attitude towards Walker's general work per-
formance was very pleasing, while its attitude towards his
less than satisfactory paperwork performance was one of
tolerance. With these factors in mind, the question as to
what motivated Respondent to discharge Walker on April
21 becomes rather dubious and the more precise question
as to whether his discharge was motivated by factors other
than his poor paperwork can best be answered by deferring
to an examination of the total evidence of record discussed
infra.
The evidence of record is undisputed that on or about
April 11, 1975, Harry Newkirk and Carny Walker became
engaged in union activity, and that on the next day, New-
kirk talked to fellow employees about the Union and dis-
tributed union authorization cards to such employees on
and after April 16, 1975. The media by which Respondent
learned about the organizing efforts of Newkirk and Walk-
er is not established by the evidence, but it is well estab-
lished that Respondent (Supervisor Joe Adams) had
knowledge of the union efforts of Newkirk and Walker on
the morning of April 21, 1975. This fact is amply estab-
lished through the testimony of Respondent's secretary,
Emily Hudson, who voluntarily testified that, on the morn-
ing of April 21, Supervisor Adams told her Respondent's
attorneys knew about the organizing efforts of its-employ-
ees and thereupon proceeded to interrogate her (Hudson)
in a manner as to when she learned about the employees'
union activity; that Manager George Clark was in Chatta-
nooga that morning in a managerial meeting regarding the
employees' efforts to unionize the plant; and that later that
day (April 21) Supervisor Adams told her that Newkirk
and Walker were, involved in trying to bring the Union into
the plant and the Respondent did not want it. Although
Supervisor Adams denied such conversation with Hudson
and other company witnesses denied that there was such a
meeting or that they (Respondent) had knowledge of any
union activity, I do not credit their testimony in this re-
gard.'
The credited evidence of record also established that, on
the morning of April 21, Supervisor Adams walked up to
the desk of secretary Hudson and insistently interrogated
her about knowing about the Union. He finally warned her
that he was asking her one more time for the right answer,
and advised her that if she did not know about the Union,
3I credit the testimony of secretary Hudson over that of Respondent's
witnesses because, although she is still an employee of Respondent, under
the supervision of Manager George Clark and/or Supervisor Adams. she
nevertheless testified in this proceeding without subpena, she is and was
working closely with management during the period in question and was in
a position to learn the concerns of management, and because she testified in
an unhesitatingly, responsive, nonexaggerating, and objective manner,
which persuaded and convinced me that she was telling the truth On the
contrary, I do not credit the testimony of Supervisor Adams, Manager
George Clark, and other company Witnesses, not only because their testimo-
ny is self-serving, but also because Supervisor Adams appeared to be overly
careful in answering questions relating to the crucial conversations held
with Emily Hudson on April 21, because he (Adams) and some other com-
pany witnesses appeared to be looking towards counsel for the Respondent
for expressions of approval or disapproval before answering such questions,
and because I was thereupon persuaded by their demeanor and the tenor of
all of the evidence of record that they were not testifying truthfully
SELOX, INC. 505
she would learn about it the next day when Newkirk was
gone. Since Adams is a high-ranking supervisor, next m the
hierarchy to Manager George Clark, such stringent interro-
gation of Hudson by him was of a coercive, threatening,
and restraining nature, against the exercise of employees'
Section 7 rights, and therefore constituted a violation of
Section 8(a)(1) of the Act.
Based upon the foregoing credible evidence, I thereupon
conclude and find that on April 21, 1975, Supervisor Joe
Adams and Manager George Clark (Respondent) had ac-
tual knowledge of the union activity of dischargees Harry
Newkirk and Rubin Carny Walker.
The Discharge of Rubin Carny Walker and Harry
Newkirk
Respondent readily admits that it discharged Rubin Car-
ny Walker and Harry Newkirk on April 21, 1975, but it
contends that it did so for cause, and not for their union
activity, of which it had no knowledge. More specifically,
Respondent maintains that it discharged Walker for poor
paperwork and that Newkirk was discharged for poor (un-
timely) service to its customers and a "bad" attitude when
Adams spoke to him about it. An examination of the evi-
dence with respect to Walker's poor paperwork readily re-
veals that while Walker's paperwork was less than satisfac-
tory, Respondent was nevertheless tolerant towards such
work prior to the morning of April 21; and that, when it
decided to discharge Walker on that afternoon, it also had
knowledge of his union activity.
Although unsatisfactory work performance (paperwork
or otherwise) may very well constitute cause for discharge
of an employee as Respondent contends, the question pre-
sented by the evidence in Walker's case, is whether his
discharge by Respondent was primarily motivated for
cause (poor paperwork), or for union activity in violation
of Section 8(a)(3) and (1) of the, Act . Since it is clearly
established in the record that, prior to the morning of April
21, Respondent was rather tolerant with Walker's poor pa-
perwork; that prior to that time, Respondent did not seri-
ously warn or reprimand Walker about his paperwork; that
aside from Walker's poor paperwork, Respondent consid-
ered Walker a very good worker and had granted him a
raise from $2.85 to $3 per hour, just 2 weeks after he was
hired; that Respondent abruptly discharged Walker on the
afternoon of the same day it manifested such grave con-
cern upon learning about his union activity; and that
Walker was discharged just an hour or more before Re-
spondent discharged the only other discharged employee,
Harry Newkirk, who too, it had just learned was involved
in union activity.
When all of the above-described factors are considered
in conjunction with Respondent's (Supervisor Joe Adams)
earlier threatening and coercive interrogation of Secretary
Emily Hudson about the union activities of its employees,
the conclusion is compelling, and I find, that Respondent's
primary motive for discharging Walker was not his poor
paperwork, but ',his union ,activity; and that Respondent's
contention that I it discharged Walker for cause (poor pa-
perwork), is a mere pretext to conceal the real and unlaw-
ful aforedescribed reason for (union activity) his discharge.
The testimonial evidence with respect to the quality of
Harry Newkirk's performance as city route truckdriver ap-
pears, on the surface, to be highly conflicting. However, a
careful examination of the credible testimony of the several
witnesses in this regard reveals that Newkirk, in spite of
Respondent's present contention of poor performance, has
held several progressively responsible positions accompa-
nied by increasing pay rates during his short (1 year and 4
months) working tenure with the Respondent. It is not dis-
puted that Newkirk, having served in several capacities in
an exemplary fashion prior to taking the city route, is very
knowledgeable of the Respondent's overall business opera-
tion. The evidence does not show that Respondent had any
significant complaints about Newkirk's individual perfor-
mance as city route truckdriver, prior to March 1975. In
fact, the credible evidence seems to reinforce this fact,
since, in March 1975, Respondent (Supervisor Adams) au-
thorized Newkirk to hire someone to help him with the city
route workload, which Newkirk had informed Adams was
getting to be too much for one man to handle. Newkirk
thereupon hired his cousin, dischargee Rubin Carny Walk-
er, to assist him on the city route. However, between 8 and
14 days later, Supervisor Adams reassigned Walker to an
out-of-town truck route because he needed to fill the posi-
tion, and Newkirk was left with only intermittent help from
Stern, the prior city route truckdriver. Consequently, New-
kirk could not service all of Respondent's customers in a
timely manner.
Respondent's secretary, Emily Hudson, testified that,
during her 3-1/2 years in the business office of the Respon-
dent, customers would call in complaining about the un-
timely delivery of their orders and delayed pickup of empty
cylinders. Contrary to the testimony of Supervisor Adams
and other managerial or sales personnel, she did not notice
any increase in such complaints during the last 2 months of
Newkirk's employment. In her opinion, Newkirk was a very
good city route truckdriver compared with the six city route
truckdrivers she had known to work that route; When
Newkirk was discharged on April 21, secretary Hudson
said there were many comments from salesmen and other
employees that Newkirk would, be hard to replace. Secre-
tary Hudson also testified that, during the investigation of
this case by counsel for the Respondent, she told counsel
that she thought Respondent was wrong in discharging
Walker and Newkirk for engaging in union activity .4
It is further well established by the credible testimony of
Respondent's secretary, Emily Hudson, and other undis-
puted testimony, that Supervisor Adams authorized New-
kirk in mid-March to hire someone, after Newkirk advised
him that the city route was increasing and was too much
41 credit the testimony of secretary Emily Hudson because, although she
is still employed by Respondent, she nevertheless testified voluntarily and
was not at all selective in her answers to the questions propounded to her. In
other words, I noted, and the record reflects, how she did not fail to answer
candidly whether or not her statements were favorable or adverse to Carny
Walker, Harry Newkirk, or the Respondent, and I was persuaded by her
demeanor throughout her testimony that she was testifying truthfully.
Moreover, her testimony coincides with the logical consistency of all of the
evidence of record Suffice it to say that reasons herembefore mentioned, I
discredit the testimonial versions of Supervisor Adams, Manager George
Clark, and other sales personnel with respect to the adequacy of Newkirk's
performance in servicing Respondent's customers
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for one person to handle. If Newkirk's route were not actu-
ally increasing as Newkirk had advised, or if Adams did
not have confidence in Newkirk's performance and judg-
ment, it is difficult to conceive that Adams would have
authorized Newkirk to hire someone on Newkirk's recom-
mendation. The credited testimony of record unequivocal-
ly established that customer complaints about timely deliv-
ery and pickup of empty cylinders were not uncommon,
and the credited testimony of Newkirk and secretary Hud-
son established that such complaints did not increase during
the last 2 months of Newkirk's employment with Respon-
dent.
Assuming customer complaints did increase during the
last 2 months of Newkirk's employment, as Respondent
contends, the credible evidence of record fails to establish
that such increase in complaints were the result of
Newkirk's inadequate performance. In this regard the evi-
dence is clear that, on cross-examination, neither Manager
George Clark, Supervisor Adams, nor salesmen Wood,
Slate, or Frazier could in fact establish that customer call-
in orders or complaints were always transcribed or proper-
ly recorded on the clipboard for Newkirk's attention; that
the office was always able to contact Newkirk after he left
on his-truck route; that orders and complaints were always,
in any way, communicated to Newkirk; that the person
receiving call-in orders did not promise to make deliveries
or to pick up empty cylinders that could not be fulfilled at
the time promised the customer; that the Respondent al-
ways had the product in stock which was ordered by the
customer; or that Newkirk, as one driver, could possibly
service the entire route load without assistance of another
person, as he had been given only 3 weeks before. More-
over, the evidence is undisputed that Respondent had fre-
quent elevated tailgate and other truck malfunction prob-
lems which delayed or prevented Newkirk from- making
timely deliveries or picking up empty cylinders.
When all of the above-described factors are considered
in conjunction with the total evidence of record, I am per-
suaded, andhereupon conclude and find, that the evidence
fails to show that Harry Newkirk was responsible for poor
service to Respondent's customers which caused it to lose
some customer accounts.
Respondent contends that it also discharged Newkirk
for a "bad attitude," which it defined as Newkirk's re-
sponse to Supervisor Adams' advising him that he would
have to let him go, as follows: "I am doing the best possible
job I can do, and I'm working as hard as I can, I can't do any
better than I'm doing" .... I think you're going to have a
hard time finding someone else to do as good a job as I've
been doing." Supervisor Adams then said he felt he had no
choice at this point and admitted that without any prior
warning, reprimand, or offer of alternative work, he dis-
charged Newkirk.
In view of the fact that Newkirk's above-described re-
sponse to Adams' words of discharge was neither insubor-
dinate nor insulting, I find it difficult to conceive that such
utterance'by Newkirk was even a part of the real reason for
his discharge. Hence, in view of the total evidence of rec-
ord, it is obvious that Respondent did not discharge New-
kirk for cause (poor service to its customers and bad atti-
tude), but rather, for his union activity in violation of
Section 8(a)(3) and (1) of the Act. It is equally obvious that
Respondent 's contention that it discharged Newkirk for
poor service to its customers and a bad attitude is a pretext
to mask its otherwise real and unlawful reason (union ac-
tivity) for his discharge.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial Order, I shall recom-
mend that it cease and desist therefrom and that it take
certain affirmative action to effectuate the policies of the
Act.
It having been found that Respondent interfered with,
restrained , and coerced employee Emily Hudson in the ex-
ercise of her Section 7 protected rights, in violation of Sec-
tion 8 (a)(1) of the Act, and that it discharged Rubin Carny
Walker and Harry Newkirk in violation of Section 8(a)(3)
and (1) of the Act, the recommended Order will provide
that Respondent offer Rubin Carny Walker and Harry
Newkirk reinstatement to their jobs , and make them whole
for loss of earnings within the meanings and in accord with
the Board 's decisions in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962), except as specifically modified by the
wording of such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from or in any other manner
interfering with ; restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4,
1941).
Upon the basis of the above findings of fact and upon
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Selox, Inc., the Respondent, is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Teamsters, Chauffeurs, Helpers & Taxicab Drivers,
Local Union 327, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, is and has been at all times material herein, a
labor organization within the meaning of the Act.
3. By interrogating Emily Hudson about her and other
employees' past and current union interest or affiliation,
Respondent violated Section 8(a)(1) of the Act.
4. By discriminating in regard to tenure of employment
SELOX, INC.
of Rubin Carny Walker and Harry Newkirk, thereby dis-
couraging membership in the Union or other labor organi-
zations, Respondent has engaged in unfair labor practices
condemned by Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
Respondent, Selox, Inc., Nashville, Tennessee, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees about their past and cur-
rent union interests or affiliation.
(b)_ Discriminating in regard to tenure of employment of
employees, thereby discouraging membership in the Union
or other labor organizations.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Rubin Carny Walker and Harry Newkirk rein-
statement to their former positions or, if such positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights previously en-
joyed, and make them whole for any loss of pay suffered
by reason of the discrimination against them with interest
at the rate of 6 percent per annum, in the manner described
in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of the recommended Order.
(c) Post at 'Respondent's plant at Nashville, Tennessee,
copies of the attached notice marked "Appendix" b Copies
of said notice, on forms provided by the Regional Director
for Region 26, after being duly signed by Respondent's
representatives, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 26, in writ-
ing, within 20 days from the' date of this Order, what steps
507
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not found herein.
5 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
e In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate employees about
their and other employees' union membership, activi-
ties, and desires.
WE WILL NOT discourage, membership in Teamsters,
Chauffeurs, Helpers & Taxicab Drivers, Local Union
327, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, or any other labor organization, by discharg-
ing employees or otherwise discriminating in any
manner in respect to their tenure of employment or
any term or condition of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise and en-
joyment of rights guaranteed to them by Section 7 of
the National Labor Relations Act, except to the extent
that such rights may be affected by lawful agreements
in accord with Section 8(a)(3) of the Act.
WE WILL offer Rubin Carny Walker and Harry
Newkirk immediate and full reinstatement to their for-
mer positions or, if such positions no longer exist, to
substantially equivalent ones, without prejudice to the
seniority and other rights and privileges enjoyed by
them, and make them whole for any loss of pay they
may have suffered by reason of their discharge, with
interest at the rate of 6 percent per annum.
All our employees are free to become or remain, or re-
fuse to become or remain, members of said Union or any
other labor organization, except to the extent that such
rights may be affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
SELOX, INC.