Southern Oxygen Co., Inc.

National Labor Relations Board - Board Decisions

Jan 20, 1954

107 N.L.R.B. 894 (N.L.R.B. 1954)

894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Petitioner contends that the Employer, without bargaining
with the Union, had no right in any event to take these employees
out of the bargaining unit by giving them supervisory duties,
and that the work of the assistant district gaugers has re-
mained primarily the same.
The assignment of particular duties has been recognized by
the Board as a prerogative of management. The only question
for determination is whether such supervisory duties have in
fact been conferred upon the individuals concerned.'
Although there appears to be an unusually large number of
supervisors in proportion to men supervised, the situation is
explained by the fact that the great distances between the Em-
ployer's operations necessitate decentralized reponsibility.
Accordingly, because it is clear that the assistant district
gaugers have in fact been clothed with the supervisory powers
outlined above, we find that they are supervisors within the
meaning of the Act.'
As it appears that the Employer does not question the ma-
jority status of the Petitioner and that neither party desires
an election, we find that no question affecting commerce
exists concerning the representation of employees of the Em-
ployer within the meaning of Section 9 (c) (1) and Section 2 (6)
and (7) of the Act. Accordingly, we shall dismiss the petition.4
[The Board dismissed the petition.]
'See American Finishing Company, 86 NLRB 412; The Baltimore Transit Company, 92
NLRB 1260.
3Continental Pipe Line Co., 78 NLRB 379.
4W K.B.H. Inc , 81 NLRB 63; see also Lake Tankers Corporation, 79 NLRB 442; Houston
Terminal Warehouse et als., 107 NLRB 290
SOUTHERN OXYGEN COMPANY, INC. and TRUCK DRIVERS
AND HELPERS, LOCAL 355, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, AFL. Case No. 5-CA-693.
January 20, 1954
DECISION AND ORDER
On August 11, 1953, Trial ExaminerSidney L.Feiler issued
his Intermediate Report in the above-entitled proceeding, find-
ing 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 copy of the Intermediate Report attached hereto.
The Trial Examiner found further that the Respondent had not
engaged in certain other unfair labor practices alleged in the
complaint, and recommended dismissal of those allegations of
107 NLRB No. 176.
SOUTHERN OXYGEN COMPANY, INC. 895
the complaint . Thereafter , the Respondent filed exceptions to
the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Ex-
aminer at the hearing and finds that no prejudicial error was
committed . The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and brief,
and the entire record in the case , and hereby adopts the find-
ings, conclusions , and recommendations of the Trial Examiner,
with the following modification:'
In agreement with the Trial Examiner , and for the reasons
detailed in the Intermediate Report , we find that the Respondent's
conduct in discharging four drivers on February 11, 1953, was
in violation of Section 8 (a) (1) of the Act. However, we find it
unnecessary to decide whether or not this conduct was also vio-
lative of Section 8 ( a) (3) of the Act inasmuch as the remedy
necessary to effectuate the policies of the Act is identical in
either case.'
ORDER
Upon the entire record in this case , pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Re-
lations Board hereby orders that the Respondent, Southern
Oxygen Company, Inc., Bladensburg , Maryland, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against em-
ployees for presenting grievances or otherwise engaging in con-
certed activities for mutual aid or protection.
(b) In any other manner, interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization , to form or join labor organizations , to bargain col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection as guaranteed in
Section 7 of the Act, or to refrain from any or all of such acti-
vities except to the extent that such rightmay 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 the Board
finds will effectuate the policies of the Act:
(a) Offer to James Cammarata , Henry J. Nebel, Joseph Owen,
and William Wild immediate and full reinstatement to their
former or substantially equivalent positions , without prejudice
to their seniority or other rights and privileges.
'The request of the Respondent for oral argument is hereby denied, as the record , including
the brief and the exceptions , adequately presents the issues and the positions of the parties.
2 Cowles Publishing Company, 106 NLRB 801.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole the aforesaid four employees for any loss of
pay they may have suffered by reason of Respondent's dis-
crimination against them, in the manner set forthin the section
entitled "The Remedy" in the Intermediate Report herein.
(c) Upon request make available to the Board or its agents,
for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and
reports, and all records necessary to determine the amounts of
back pay due.
(d) Post at its plant at Bladensburg, Maryland, copies of the
notice attached hereto, marked "Appendix A."' Copies of said
notice, to be furnished by the Regional Director for the Fifth
Region, shall, after being duly signed by the Respondent or its
representative, be posted by the Respondent immediately upon
receipt thereof and maintained by it for sixty (60) consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other ma-
terial.
(e) Notify the Regional Director for the Fifth Regionin writ-
ing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges a violation of Section 8 (a) (3) of the Act
and the commission of acts of interference, restraint, and co-
ercion in violation of Section 8 (a) (1) of the Act, other than
those acts specifically found hereinabove to be violative of the
Act.
3 In the event that this order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT discharge or otherwise discriminate
against our employees for presenting grievances or other-
wise engaging in concerted activities for mutual aid and
protection.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form labor organiza-
tions, to join or assist any labor organization , to bargain
SOUTHERN OXYGEN COMPANY, INC. 897
collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
and to refrain from any or all of such activities except
to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3)
of the Act.
WE WIL^, offer to the employees named below immediate
and full reinstatement to their former or substantially
equivalent positions without prejudice to any seniority or
other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the
discrimination. -
James Cammarata
Henry J. Nebel
Joseph Owen
William Wild
All our employees are free to become or remain members
of any labor organization. We will not discriminate in regard
to hire or tenure of employment or any term or condition of
employment against any employee because of membership in
or activity on behalf of any labor organization.
SOUTHERN OXYGEN COMPANY, INC.,
Employer.
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered , defaced , or covered by any
other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge filed by Truck Drivers and Helpers, Local 355, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, herein
referred to as the Union, the General Counsel of the National Labor Relations Board i by
the Regional Director for the Fifth Region (Baltimore , Maryland ), on March 20, 1953,
issued a complaint against Southern Oxygen Company, Inc , herein referred to as the Re-
spondent or the Company , alleging that the Respondent had engaged in and was engaging
in unfair labor practices within the meaning of Section 8 (a) (1) and (3) and Section 2 (6)
and (7 ) of the National Labor Relations Act, as amended , 61 Stat 136 , herein called the
Act Copies of the charge, complaint, and notice of hearing were served upon the parties.
With respect to unfair labor practices , the complaint alleges in substance that on or
about February 11, 1953, the Respondent discharged four employees, James Cammarata,
iThe term General Counsel, as used herein, includes the attorney representing the General
Counsel at the hearing. The National Labor Relations Board is referred to as the Board.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Henry J Nebel, Joseph Owen, and William Wild, and thereafter failed and refused to rein-
state them , because of their union and concerted activities , by these and certain other ac-
tivities , the Respondent has interfered , restrained , and coerced its employees in the exer-
cise of the rights guaranteed in the exercise of the rights guaranteed in the Act.
The Respondent in its answer , dated March 26, 1953, admits certain jurisdictional alle-
gations, admits the discharge of the four employees named in the complaint , denies the com-
mission of any unfair labor practices, and affirmatively asserts that these individuals
were discharged pursuant to a plan of reorganization and decentralization in which they were
selected for discharge as the least desirable employees in their employment category.
Pursuant to notice a hearing was held at Washington , D C , before the undersigned Trial
Examiner All parties were represented at the hearing and were afforded full opportunity
to be heard and to examine and cross - examine witnesses At the conclusion of the hearing,
the General Counsel moved to conform the pleadings to the proof as to formal matters
This motion was granted as to all pleadings without objection The General Counsel and the
Respondent then presented oral argument An opportunity was also afforded for the filing
of briefs and/or proposed findings of fact or conclusions of law or both None were sub-
mitted
Upon the entire record and from his observation of the witnesses , the undersigned makes
the following:
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENT
The Respondent is a Delaware corporation with an office and place of business in Bladens-
burg , Maryland It is engaged in the manufacture of compressed gas and certain welding
equipment for industrial and medical accounts . Operations are conducted at 4 main pro-
ducing plants, and approximately 12 district offices and 50 branches.
The Bladensburg plant, where the alleged unfair labor practices occurred , is a main
producing plant. Respondent in the normal course of its business at that plant uses raw
materials valued in excess of $ 250,000 annually , of which it causes and has continuously
caused more than 75 percent annually to be purchased , transported , and delivered in inter-
state commerce from and through States of the United States , other than the State of Mary-
land, to its Bladensburg plant, and has manufactured , sold, and distributed finished products
valued in excess of $ 1,000,000 annually, of which it causes and has continuously caused more
than 75 percent annually to be supplied , transported , and delivered in interstate commerce
to and through States of the United States, other than the State of Maryland, from its Bladens-
burg plant
The Respondent concedes that at all times here relevant it has been engaged in commerce
within the meaning of the Act and the undersigned so finds.
II THE LABOR ORGANIZATION INVOLVED
Truck Drivers and Helpers, Local 355, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, affiliated with the American Federation of
Labor, is a labor organization within the meaning of the Act.
III THE UNFAIR LABOR PRACTICES
A. The discharges
1 The background
The Bladensburg plant is a main producing plant serving certain district and branch of-
fices. Prior to February 11, 1953, over-the-road delivery operations were centered at
Bladensburg That is, a group of drivers from this central headquarters made deliveries
to company offices in Virginia and other States These district offices and branches, in
turn, had their own staffs and equipment to make local or city deliveries City drivers
were also employed at Bladensburg to make deliveries in the Washington , D. C , area
There were 10 over-the - road drivers stationed at Bladensburg in the period relevant here
They were assigned truck and trailer units for their long-distance hauling. The 4 dischargees
were in this group
SOUTHERN OXYGEN COMPANY. INC. 899
The chief company officials were President Swope, Robert P. McMillan, vice president
and general manager in charge of all operations, Robert C. Harris, Jr., manager of person-
nel and traffic, and J. C. Bell, supervisor of the shipping department. The drivers received
their orders and were responsible to Bell (who had died before the beginning of the hearing).
Bell was responsible to Harris, who, in turn, reported to McMillan.
Since October or November 1952, the Respondent had given consideration to a possible
program of decentralizing its long-haul operations at Bladensburg by assigning trailer units
to district offices rather than operating a central pool. At a meeting in the latter part
of November 1952, district managers had urged this change contending it would lead to
increased efficiency and economy of operations. This recommendation was not implemented
in any way, prior to February 10, 1953.
2. The change in expense account allowances
Prior to January 23, 1953, it was the Respondent's policy to reimburse drivers for their
actual expenses while engaged in company business. Witnesses for the Respondent testified
that the amounts requested for expense reimbursement were increasing and that manage-
ment was concerned over this problem and felt that the amounts requested were excessive
and, in some cases, falsified. On January 23, 1953, Harris issued an interoffice communi-
cation addressed to "Tractor Trailer Drivers" in which he stated there had been a complete
review of allowable expenses to tractor-trailer long-haul drivers, such expenses must be
set upon a basis fair and equitable to the Company and the drivers, and that certain changes
were being made, effective immediately. The memorandum listed restrictions on the num-
ber of meals which would be allowed on certain trips, and listed maximum amounts which
would be allowed for meals.
3. Protests against the change in expense allowances
The change in expense allowances did not meet with the hearty approval of the long-haul
drivers. The same day that the policy was announced these drivers went as a group to see
McMillan. He was unable to see them then and Harris arranged for a meeting the next day,
Saturday, January 24. Almost all the trailer drivers were present. McMillan testified that
the 4 dischargees complained they could not get along on the new allowance. McMillan ex-
plained that the Company had to control these allowances and asked their cooperation. The
meeting broke up with the drivers still unenthusiastic over the change and, according to
McMillan, the 4 dischargees gave him the impression that they were not interested in the
Company's situation.
On Saturday, February 7, a regular monthly meeting of the drivers took place. McMillan
was ill and Harris was in charge. Harris discussed the Company's position with the men,
but reported to McMillan the following Monday, February 9, that he had not been successful
and that the men were still dissatisfied, particularly the four dischargees.
4. Union activity
In the week beginning February 2, the long-haul drivers took steps to affiliate with the
Union. After discussion among themselves, James Cammarata, one of the dischargees and
a former member of the Union, was authorized to make contact with it. He went to Baltimore
on Wednesday, February 4. He spoke with Harold Miller, a representative of the Union,
received application cards, and arranged for Miller to meet with the drivers the following
Saturday, February 7, at a restaurant near the plant, the Dixie Pig. On Friday, February 6,
9 or 10 of the long-haul drivers met and signed application cards. Word also was spread
among the approximately 15 city or local drivers of the union meeting.
On Saturday afternoon, February 7, when drivers began to arrive at the Dixie Pig for
the meeting, they noticed that Bell, their supervisor, was seated there. i'hey decided to
move the meeting to another restaurant, Romano's, and left the Dixie Pig after posting
one of the men to refer other drivers to the new place of meeting. The men met with Miller
at Roman's, discussed their problems with him, some signed application cards, and it
was agreed that the next move would be left to the Union.
Towards the end of the meeting when most of the drivers had left, Bell entered with
his wife and they seated themselves at a table in another part of the restaurant. Bell waved
to the men and sent beers over to some of them.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It was agreed that it was the custom of the men, including Bell, to get together at the
Dixie Pig and Romano's, which were nearby restaurants, on Saturday afternoons. Further, all
witnesses agreed that Bell was friendly with the men. Under these circumstances the under-
signed concludes that there was no surveillance by Bell of the union meeting. Also, while
Bell could have deduced from what he saw that something out of the ordinary was taking
place, the undersigned is reluctant to make such a finding in the circumstances herein,
namely, the lack of opportunity to hear the testimony of Bell and observe his demeanor while
testifying. Both McMilland and Harris denied that they had any knowledge of union activity
among the men until after the discharges. The undersigned concludes that it has not been
established that the Respondent had knowledge of union activity among the drivers prior to
the four discharges.
5. The meeting of February 10
When Harris reported to McMillan on Monday, February 9, that he had made no progress
in his meeting with the drivers the preceding Saturday, McMillan, according to his testi-
mony, decided to put the decentralization plan into effect. However, he ". . . felt the only
fair thing to do would be to give these drivers one good, solid last opportunity to explain to
me, as man to man why they could not go along with the Company on this expense matter."
Accordingly, he ordered the calling of another meeting for the afternoon of the following
day. All drivers, both local and long-haul, were summoned to this meeting.
McMillan started the meeting by outlining the history of the Company, its problems, the
requirement that its stockholders receive a just return, and the need to control expenses.
He concluded by stating that if it could be shown that the allowed amounts were insufficient
he would be glad to review the matter. He expressed regret that President Swope was ill
and unable to attend the meeting.2 McMillan then asked the men what other "troubles"
there were. Wild complained of the condition of the chains on his truck. Cammarata asked
why plant workers received overtime pay after 8 hours a week while the drivers were
paid overtime after 40 hours. McMillan gave him an explanation. Nebel then told McMillan
that the new expense allowance system took $44 a month out of his pocket, Cammarata
also complained that there would be a $40 cut in pay. Owen asked why city drivers in New
Jersey received more than trailer drivers. McMillan promised to look into this problem.
After the meeting, McMillan summoned Bell and Harris to his office and told them that
he was ready to proceed with the decentralization plan. Then, according to both McMillan
and Harris, there was a discussion as to how the plan was to be put in operation. It was
decided to proceed with a partial decentralization. It was then determined that 4 truck-
trailer units would be based in 3 district offices. After a review of the records of all the
long-haul drivers, the 4 dischargees were selected for discharge. The next day, February
11, notices were issued to each of them that effective immediately their services were
no longer required. They were not offered positions in the district offices nor had their
successors been hired at the time they were released. Eventually, by transfer and new
hirings at the district offices, the replacements were made.
McMillan testified that in deciding which drivers to release he took into account the
records of all the drivers. These four were selected, he asserted, because there had been
constant complaint by district managers concerning them. He also took into account the
fact that every time there was a meeting, these men were constantly voicing their dis-
approval of company policies. He further testified that if there had been no decentraliza-
tion he would not have discharged the four men at that time because the Company needed
drivers, but that sooner or later they would have been discharged because they continually
voiced dissatisfaction as employees of the Company.
Harris substantially corroborated McMillan. He testified that the decision to decentra-
lize was reached after the meeting on February 10. This decision, according to Harris, was
2 The summary of the meeting is based primarily upon the testimony of McMillan. The one
significant conflict in testimony which developed was whether McMillan stated in substance
that if the men went "through with this thing" it would"'break the old man's heart and show
him[McMillan] to be a bad manager." The testimony of the four discharges to this effect was
denied by McMillan. His denial was supported by Donald Taylor, one of the city drivers who
did not join the Union The dischargees were not clear at what point McMillan made the
alleged remarks, but they agreed that McMillan made no further explanation. The under-
signed, from his observation of the witnesses, credits McMillan's denial.
SOUTHERN OXYGEN COMPANY, INC. 901
based on "the lack of interest on the part of the drivers to go along with us on the expenses
and help to curtail the cost of operation of our fleet." The four dischargees he testified, were
least cooperative on the expense account problem . That, plus their records, led to their
selection for discharge
6. The records of the dischargees
Detailed evidence was submitted by the Respondent in amplification of its contention
that the dischargees had poor work records. This evidence, to which there was no rebuttal
is as follows:
a. James Cammarata
James Cammarata was employed from April 28, 1948, until his discharge on February
11, 1953. He was first employed as a city driver and then was advanced to the position of
trailer driver and later, tractor-trailer driver. He received progressive increases in
pay during these years. He was third or fourth in the order of seniority in his employee
group.
On January 28, 1953, Frank Ramsey, manager of the Richmond Branch, sent a written
report to McMillan complaining of Cammarata's critical attitude of local operations during
an incident which occurred that day.
Harris also testified that the manager of the Norfolk district office complained to him in
November 1952, that Cammarata was arriving late. Harris also asserted that he checked
the daily logsheets of all the drivers in the period from the end of November 1952 to January
1953 and that in his opinion, Cammarata took too long to complete his assignment in 12
instances.
In the fall of 1951, Cammarata, according to Harris, was placed on probation for taking
driving keys out of local trucks in the Richmond office in order to make sure that men
would be available to help unload his truck. Lawrence Thomason, then manager at Richmond,
testified as to this incident and identified a written protest he addressed to McMillan on
August 31, 1952.
Austin Sachs, of Respondent's Hagerstown branch, testified that in December 1952 or Jan-
uary 1953 Cammarata told him he padded his meal tickets with the help of waitresses.
C. H. Adams, manager of the Baltimore branch, was requested by Harris to make periodic
checks when drivers left Baltimore for Bladensburg. He testified that he found one instance
where Cammarata misstated his time of leaving Baltimore by 21 hours. This occurred in
December 1952 and was the sole violation Adams found over a 3-month period. He reported
this instance to Harris approximately 3 weeks later.
b. Henry J. Nebel
Henry J. Nebel worked for the Respondent from March 1938 to February 1942, November
1945 to September 1947, and from October 1950 until his discharge on February 11, 1953.
In his last period of employment he worked as a trailer driver and tractor -trailer driver.
He received pay increases during this period . He was fifth in seniority among the long-haul
drivers.
In November 1952, according to Harris, a complaint was received from the Norfolk
office that Nebel was arriving late.
Harris also maintained that in 10 instances in the period November 1952--January 1953,
Nebel took too long to complete his assignments.
c. Joseph Owen
Joseph Owen was employed from September 1946 until February 11, 1953. He progressed
from the ranks of city driver to trailer driver and tractor-trailer driver with pay increases
over the years. He was senior man among the long-haul drivers.
Harris testified that when the expense account of the drivers was checked he received
reports that Owen was obtaining receipts in excess of the amounts he actually spent.
The Respondent produced a letter from one of its customers, dated October 30, 1952,
complaining of Owen's refusal to unload his truck when the customer was unable to furnish
the customary assistance in unloading. A convening memorandum from F. E. Ramsey
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Richmond branch to Harris noted that Owen was finally authorized to employ a helper
and stated that he should have been more cooperative
Hopewell, the district manager at Norfolk, in November 1952 complained to Harris that
Owen was not cooperative
Harris further asserted that Owen, in his opinion, took excess time to complete trips
in 9 cases during a 2-month period
In the spring of 1952 Owen was put on probation when Owen helped another driver clear
a weighing station by carrying merchandise for him in his truck
Robert Emdly, branch manager at Waynesboro and Hagerstown, testified that approxi-
mately 3 or 4 weeks before February 1953, Owen told him he padded his expense account
Emdly reported this conversation to Roberts, the sales manager of the Company
Paul V . Hareford , a foreman for a company distributing the Respondent ' s products in
Waynesboro, testified that Owen also told him in January 1953 of padding his meal check
receipts Hareford reported this to Emdly
Owen made a similar admission to Austin Sachs, an office manager at the Hagerstown
branch, according to Sachs
McMillan admitted that he had written a letter in June 1950 praising Owen as an out-
standing employee. Owen's record was good up to that time, according to McMillan
d William Wild
William Wild began working as a city driver on September 8, 1947. He later was trans-
ferred to long-haul work and received the standard increases paid to the other drivers
in his group He was third in seniority in his group
Harris testified that he received reports that Wild was obtaining improper receipts
for his expenditures.
The Respondent produced a written report sent by L N. Thomason of it$ Richmond branch
on January 13, 1953, to Harris complaining that Wild had blocked the driveway with his
truck and when reprimanded for this had replied that Thomason was not his boss and did
not care what the latter thought of his judgment
Harris claimed that Wild took excess time to complete his trip on 12 days in a 2-month
period.
Thomason testified that he complained by telephone on the morning of February 10,
1953, to McMillan about Wild using profane language in the Richmond office, that McMillan
told him they were considering disciplining of the four drivers, and Mr Buck Wild
was one of them, and he would appreciate it if I would make my report and put it in the
mail that morning " Thomason did so Thomason also testified that while McMillan did
not name the four drivers he had in mind, Thomason understood he was referring to the
dischargees because they were the ones generally complained of at management meetings
Paul Efeson, manager of the York branch, testified that he complained to McMillan about
Wild using profanity . He detailed a particular occasion in September 1951 He further
related an instance in July 1952 when Wild was not cooperative , in his opinion , and Efeson
had to secure Bell's cooperation in seeing to it that Wild made a special local delivery.
The 4 dischargees were not the only drivers from whom there were complaint Har: is
testified that in the 18 months he occupied the post of personnel and traffic manager, the
staff of drivers had expanded from 19 to 25, but that a total of 35 to 40 men had been carried
on the company roster at various times during that period There had been a heavy turnover
because of difficulty in securing competent help. The work of the drivers was checked and
men received individual reprimands when necessary . In addition , there were monthly meet-
ings at which such matters as slowness in completing trips, the need to cooperate with
branch offices, and the necessity to refrain from too much talking at local offices were
brought to the attention of the men as a group Harris did not give any individual reprimands
to Nebel or Wild or Cammarata . He maintained that Owen was spoken to several times for
lack of cooperation and talking too much
Contentions of the Parties, Conclusions
The Respondent , denying any knowledge of the union activities of the dischargees, con-
tends that they were discharged because of the decision to decentralize long-haul operations
at the Bladensburg plant and that these employees were discharged because they were the
least desirable . The General Counsel contends that the discharges were made because of
the Union or concerted activities of the men involved
SOUTHERN OXYGEN COMPANY, INC. 903
The undersigned has found the evidence is insufficient to establish that the Respondent
had knowledge of the union activity among its employees prior to the discharges However,
this is not diapositive of all the issues As provided in Section 7 of the Act ". . Employees
shall have the right to self - organization , to form, join , or assist labor organizations, to
bargain collectively through representatives of their own choosing , and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid or pro-
tection . ." The long-haul drivers, in their unanimous protest to McMillan and Harris
at meetings at which the change in expense allowances was discussed, were engaging in
protected concerted activities . Employees have the right to present grievances and objec-
tions to changes in working conditions 3 Under the Act, they are protected against reprisal
for engaging in such concerted activity Yet it was their opposition to the change in expense
allowance, expressed in a form of concerted activity , which was the basic reason for the
decision to proceed with the decentralization plan. Until their protest , there had been dis-
cussion of the desirability of decentralizing long-haul operations , but no definite action had
been taken . It was only after Harris reported to McMillan on February 9 that the drivers in
a meeting on February 7 still opposed the change , that McMillan decided to proceed with
the decentralization . Before proceeding , he gave the drivers one last chance to persuade
him in a meeting of the validity of their opposition or, presumably , to indicate their ac-
ceptance of the plan. When the men still voiced their opposition , McMillan took action.
Under these circumstances , McMillan's conduct was an act of reprisal against all the long-
haul drivers for their engaging in concerted activities by opposing a change in working
conditions 4
As to the immediate discharges , it is clear from McMillan ' s testimony that there would
have been no discharges on February 11, 1953, if the decision to decentralize had not been
made The Respondent presented extensive testimony as to the poor work records of the
dischargees . While no evidence was presented in specific rebuttal to this testimony, it
is undisputed that the dischargees were senior drivers, had each worked for a substantial
period of time during which the Respondent had discharged unsatisfactory employees, and
the complaints against their work had been filed over a long period of time without McMillan
or Harris taking final action Significantly, both McMillan and Harris identified the dis-
chargees as being most vocal of all the employees in their opposition to the changes in
allowances . While the Respondent denies any connection between the decision to decentra-
lize initially to the extent of 4 trailers and drivers and the activities of the 4 dischargees
at staff meetings , the undersigned concludes that there was a direct relationship No speci-
fic reason was supplied for proceeding with the dismissal of 4 drivers rather than any
other number except that there was general discussion of the possibilities by McMillan,
Harris, and Bell The evidence of the Respondent ' s annoyance with the continued oppo-
sition to the change in allowances plus other background factors which have been outlined
establishes that the concerted activities of the dischargees were at the very least a sub-
stantially contributing cause to the decision to release them and that they would not have
been released on February 11, 1953 , if they had not engaged in those activities .6 Therefore,
it is further concluded that these dischargees were violative of the Act.
B. Other acts of unfair and alleged unfair labor practices
The parties stipulated that on February 12, 1953, employees at the Bladensburg plant
struck because of the discharges on the previous day. The complaint alleges that this strike
was caused and prolonged by the Respondent 's unfair labor practices . The undersigned
finds that this allegation has been proved.
The complaint alleges further specific acts of interference , restraint , and coercion,
i.e., threatening and warning employees against engaging in union or concerted activities,
3 The Ohio Oil Company, 92 NLRB 1597; N L R. B. v. Schwartz , 146 F. 2d 773 (C. A 5),
55 NLRB 798. See also N . L R. B v. J. I. Case Co., 198 F. 2d 919 (C. A. 8), 95 NLRB 47;
N L R B. v Kennametal, Inc., 182 F 2d 817 (C. A. 3), 80 NLRB 1481; Modern Motors, Inc
v. N L R B , 198 F. 2d 925 (C A 8), 96 NLRB 964; Salt River Valley Water Users Asso-
ciation , 99 NLRB 849.
4It should be noted that the change in expense allowances went into effect on January 23
and, as far as the record shows, the new instructions were obeyed.
5 The true character of these discharges is also evidenced by McMillan's statement to
Thomason, manager of the Richmond branch, on the morning of February 10, that the "dis-
ciplining " of the four drivers was being considered.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
urging and warning employees by threats or promise of benefit to refrain from engaging
in union or concerted activities There has been a failure of proof of these allegations
and it will be recommended that the complaint be dismissed to that extent.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in connection
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
such of them as have been found to be unfair labor practices , tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain unfair labor
practices, it will be recommended that it cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminatorily discharged James Cammarata,
Henry J. Nebel, Joseph Owen, and William Wild. These discharges constituted violations
of Section 8 (a) (1) (as an interference with the right of employees to engage in concerted
activities) and Section 8 (a) (3) (as a discrimination against employees for the purpose of
discouraging membership in a labor organization--the group formed by the drivers to pro-
test the change in their working conditions). 6 Whether the discharges be regarded as a
violation of Section 8 (a) (1) or of Section 8 (a) (3), or both, the undersigned finds that the
following relief will be necessary in order to effectuate the policies of the Act. It will be
recommended that the Respondent offer the dischargees immediate and full reinstatement
to their former, or substantially equivalent positions, without prejudice to their seniority
or other rights and privileges, and make each of them whole for any loss of pay he may
have suffered by payment of a sum of money equal to that which he normally would have
earned as wages from the date of his discriminatory discharge to the date of the Respondent's
offer of reinstatement, less his net earnings during said period (Crossett Lumber Company,
8 NLRB 440, 497-8), said back pay to be computed on a quarterly basis in the manner
established by the Board in F W. Woolworth Company, 90 NLRB 289 The Respondent,
upon request, shall make available to the Board, payroll and other records to facilitate
the determination of the amounts due 7
The character and scope of the unfair labor practices engaged in, indicate an intent
to defeat self-organization of employees and goes to the heart of the Act. It will be recom-
mended that the Respondent cease and desist from such acts and from in any other manner
interfering with, coercing, or restraining its employees in the exercise by them of the
right to engage in concerted activities for the purpose of mutual aid or protection guaran-
teed them in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the case, the
undersigned makes the following.
CONCLUSIONS OF LAW
1 The Respondent, Southern Oxygen Company, Inc., is engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act
2 Employees of the Respondent by acting concertedly for purposes of collective bar-
gaining and other mutual aid and protection, had formed a labor organization within the
meaning of Section 2 (5) of the Act.
3. By discharging James Cammarata, Henry J Nebel, Joseph Owen, and William Wild,
the Respondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
6 Smith Victory Corporation, 190 F 2d 56 (C. A 2), 90 NLRB 2089; Dofflemyer Bros., 101
NLRB 205; Ace Handle Corporation, 100 NLRB 1279; Nemec Combustion Engineers, 100 NLRB
1118.
7 While detailed evidence of unsatisfactory work by the dischargees was submitted by the
Respondent, the undersigned has found that the work records of the dischargees was not the
basic reason for their discharge. An employer is at all times free to discharge any employee
for dishonesty or for any other nondiscriminatory reason so long as that is the true reason
for the discharge. Editorial "El Imparcial" Inc., 92 NLRB 1795; Wilson R, Co , Inc. 77 NLRB
959.
FABRICA DE MUEBLES PUERTO RICO 905
4. By such discrimination and causing a strike in protest against it, the Respondent
has interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, and has thereby 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 within the meaning
of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
R E N E B ENV E N U T T I AND BERNARDO RIVERA, CO-
PARTNERS d/b/a FABRICA DE MUEBLES PUERTO RICO
and UNITED PACKINGHOUSE WORKERS OF AMERICA,
CIO. Case No . 24-CA-422. January 20, 1954
DECISION AND ORDER
On August 5, 1953, Trial Examiner Stephen S. Bean issued
his Intermediate Report in the above - entitled proceeding,
finding that the Respondents had engaged in and were engaging
in certain unfair labor practices, and recommending that
they cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondents filed exceptions
to the Intermediate Report.
The Board 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 Intermediate Report, the Respondents'
exceptions , and the entire record in this case.
As indicated in the Intermediate Report, in 1951, Con-
federacion General de Trabajadores de Puerto Rico, CIO,
and its local affiliate, Union de Trabajadores la Fabrica de
Muebles Puerto Rico in Yauco, Puerto Rico, acting jointly,
executed a collective - bargaining agreement with the Re-
spondents covering the Respondents' employees. The 1951
contract was to be effective until August 23, 1952, and for
yearly periods thereafter unless terminated by appropriate
notice. No such notice was given in 1952.
In late 1952, the Respondents' employees, dissatisfied
with the representation they were receiving, signed a pe-
tition authorizing the Union (United Packinghouse Workers
of America, CIO) to represent them. The Union then filed a
representation petition , and, after a consent election, was
certified by the Board.
In January 1953, the Union presented a proposal to the
Respondents with respect to a bargaining contract. After
several bargaining meetings the Respondents informed the
Union that the 1951 contract would remain in force until
August 23, 1953, and consequently that the Respondents would
not, in the meanwhile, deal further with the Union with re-
spect to a new contract. The Respondents stated, however,
107 NLRB No. 174.