United Servomation Corp.

National Labor Relations Board - Board Decisions

Jun 29, 1964

147 N.L.R.B. 1010 (N.L.R.B. 1964)

1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board's Regional
Office, 849 South Broadway, Los Angeles, California, Telephone No.
688-5204, if they have any questions concerning this notice or com-
pliance with its provisions.
Sabine Vending Co. Inc. , Division of United Servomation Cor-
poration and Sales and Delivery Local 258, AFL-CIO, Inter-
national Union of United Brewery, Flour, Cereal , Soft Drink
and Distillery Workers of America , AFL-CIO. Case No. 23-
CA-1616. June 29, 1964
DECISION AND ORDER
On March 17, 1964, Trial Examiner Lloyd Buchanan issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in his attached Decision. He also found
that the Respondent had not engaged in certain other alleged unfair
labor practices and recommended dismissal thereof. Thereafter, the
General Counsel filed' exceptions to his Decision and a supporting
brief, and the Respondent filed cross exceptions and a supporting
brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, except as noted below.
We disagree with the Trial Examiner's finding that the Respondent
did not violate Section 8 (a) (5) of the Act.
By letter, dated April 25, 1963, the Union claimed majority rep-
resentation, and requested recognition and bargaining as the exclusive
bargaining agent, of the Respondent's "sales and maintenance em-
ployees." On the following day, the Union also filed a petition for rep-
resentation with the Board describing the unit as all driver-salesmen
and maintenance employees. By letter dated April 29, 1963, the
Respondent acknowledged receipt of the Union's letter of April 25
and also of a letter from the Board advising of the filing of the peti-
147 NLRB No. 136.
SABINE VENDING CO. INC., ETC. 1011
tion, but refused to grant the request for-recognition and insisted that
the Union go to an election because the Respondent questioned the
Union's majority.
The Trial Examiner found that a unit of all driver-salesmen and
maintenance employees is an appropriate unit, as alleged in the com-
plaint. He also found that this unit included seven driver-salesmen 1
and one maintenance employee,' and since seven of these eight had
signed union cards, the Union represented a majority, as alleged. He
further noted that even if the four other individuals, who the Respond-
ent contended should be in the unit, were included in the unit, the
Union, with seven cards, still represented a majority. The Trial
Examiner found, however, that two of these four other individuals,
Marsh and Trapp, are sales employees, and as a result there was a
substantial variance between the unit of sales and maintenance em-
ployees sought in the request for recognition and the unit of driver-
salesmen and maintenance employees now alleged, and found to be, an
appropriate unit. For these reasons, he concluded that there was no
request and refusal to bargain with respect to an appropriate unit, and
that the refusal to bargain was not a violation of Section 8(a) (5).3
While apparently concluding that Marsh and Trapp are sales em-
ployees, the Trial Examiner found that they are more nearly restau-
rant or cafeteria workers even though they perform some sales func-
tions. We are inclined to agree with this latter finding, which would
leave no variance at all between the unit sought in the request for
recognition and the unit now alleged, and found to be, appropriate.
But even assuming that Marsh and Trapp are sales employees, we find
that the resulting variance between the two units was not substan-
tial.' In any event, any possible vagueness, ambiguity, or imperfec-
tion in the original request for sales and maintenance employees was
clarified and perfected in the petition filed by the Union the next day
for driver-salesmen and maintenance employees, a clearly proper unit
description which was in the hands of the Respondent prior to its re-
fusal to bargain .5 Strongly supporting this conclusion, and also sup-
porting a conclusion of bad faith on the part of the Respondent, is
the fact that in its refusal to bargain the Respondent did not at that
time raise any question concerning the unit but only questioned the
Union's majority. Finally, as found by the Trial Examiner, the
Union represented a majority whether or not Marsh and Trapp were
Porter, Ferguson, Levorn Sweat, Dudley J. Sweat, Scully, Ogden, and Burchfield.
Blaylock.
a The Trial Examiner did state, however, that if recognition was requested for this unit,
there would be not only the refusal alleged, with proof of majority, but also a Joy Silk
Mills, In c. (85 NLRB 1263), finding of refusal to bargain , based on the interference and
discrimination found. -
4 See, e.g., United Butchers Abattoir, Inc., 123 NLRB 946, 956, and cases cited ; Delight
Bakery, Inc., 145 NLRB 893 ; Edward Fields , Incorporated, 141 NLRB 1182 , 1194, 1195.
5 See Ivy Hill Lithograph Company , 121 NLRB 831, 835.
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
included in the unit. In similar circumstances, the Board has held,
with court approval, that there is a valid request for bargaining.6 In
view of the foregoing, and in view of the Respondent's entire sub-
sequent course of conduct, including not only its unfair labor practices
but also its attempts otherwise to destroy the Union's majority by
changing the composition of the appropriate unit,' we find that the
Respondent's refusal to bargain was a violation of Section 8(a) (5)
and (1) of the Act."
THE REMEDY
As we have found that the Respondent has unlawfully refused to
bargain, we shall, in order to effectuate the policies of the Act, order
the Respondent to cease and desist therefrom, and to bargain, upon
request, with the Union, and if an understanding is reached, to em-
body it in a, signed agreement.
AMENDED CONCLUSIONS OF LAW
The Respondent has engaged in unfair labor practices within the
meaning of Section 8 ( a) (5) and (1) and Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom
mended by the Trial Examiner, with the following modifications, and
orders that the Respondent, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, and shall also take the following action :
Cease and desist from refusing to bargain collectively in good
faith with Sales and Delivery Local 258, AFL-CIO, International
Union of United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America, AFL-CIO, as the exclusive representative of
all employees in the appropriate unit, with respect to rates of pay,
hours of employment, and other conditions of employment.
Upon request, bargain collectively in good faith with Sales and
Delivery Local 258, AFL-CIO, International Union of United Brew-
ery, Flour, Cereal, Soft Drink and Distillery Workers of America
6 Galloway Manufacturing Corporation, 136 NLRB 405 , 408, 409, enfd . 312 F. 2d 322
(C.A. 5).
7As fully explicated by the Trial Examiner , after the request for recognition and the re-
fusal , the Respondent attempted to change the status of Blaylock , Carpenter , and Olsowski
in order to change the composition of the unit so as to destroy the Union's majority.
See Joy Silk Mills, Inc. v. N.L.Ii.B., 185 F . 2d 732 (C.A.D.C.), enfg. as modified 85
NLRB 1263 , cert. denied 341 U. S. 914. There is no merit to the Respondent's contention
that there was not a proper designation of the Charging Party as bargaining representa-
tive because the membership cards signed by the employees designated the International
Union and not the Local Union as bargaining representative . N.L.R.B. v. Franks Bros.
Company, 137 F. 2d 9S9, 992 (C .A. 1), affd . 321 U . S. 702.
SABINE VENDING CO. INC., ETC. 1013
AFL-CIO, as the exclusive representative of all employees in the ap-
propriate unit, with respect to rates of pay, hours of employment, and
other conditions of employment, and if an understanding is reached,
embody such understanding in a signed agreement 9
°Counterpart paragraphs , with appropriate modifications and a description of the appro-
priate unit , shall be added to the notice in the Appendix which is to be posted by the
Respondent.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The' complaint- herein, as amended (issued June 28, 1963; charges filed May 10
and 27, June 4, and September 24, 1963), alleges that the Company has violated
Section 8(a)(3). of the National Labor Relations Act, as amended, 73 Stat. 519, by
discharging Horace L. Porter on May 2, 1963, Levorn Sweat on May 16, and Isaac
Randall on May 28, and constructively discharging Larry L. Ferguson on May 20,
and thereafter failing and refusing to reinstate them, because they engaged in union
and other protected concerted activities; Section 8(a)(5) of the Act by the above
acts, by. assigning more onerous tasks to employees because of their concerted ac-
tivities, and by refusing to recognize or bargain with the Union since on or about
April 29, 1963; and Section 8(a) (1) of the Act by all of the above alleged acts, and
by interrogation of employees concerning their union sympathies and activities.
The answer, as amended, denies the supervisory status of Route Supervisor Olsowski,
and denies the allegations of violation.
A hearing was held before Trial Examiner Lloyd Buchanan at Beaumont, Texas,
from September 24 through 26, 1963, inclusive. Pursuant to leave granted to all
parties, briefs have been filed by the General Counsel and the Company, the time
to do so having been extended.
Upon the entire record in the case and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, a Texas corporation with principal
office and place of business in Beaumont , Texas, during the 12 months prior to
issuance of the complaint, purchased and had shipped to said place of business from
points outside the State of Texas, goods and materials valued at more than $50,000;
and that the Company is a division and wholly owned subsidiary of United Servoma-
tion Corporation, a Missouri corporation, which during said 12-month period sold
and distributed products valued at more than $500,000, shipped products valued at
more than $50,000 from its place of business in St. Louis, Missouri, and received in
St. Louis goods valued at more than $50,000 which were transported directly from
States other than the State of Missouri. I find that the Company is engaged in
commerce within the meaning of the Act.
It was admitted and I find that the Union is a labor organization within the mean-
ing of the Act.
It. THE UNFAIR LABOR PRACTICES
A. The alleged independent violation of Section 8(a) (1)
It will serve no useful purpose to review at this time all of the evidence received..
In making findings, I shall refer only to the substantially sufficient facts, pro and con,
which on balance support and indeed have compelled these findings. As was evident
at the hearing, I paid painfully close attention to the testimony. Neither the cumula-
tive portions nor those which were clearly explained away need here be mentioned
in detail although all of the details have again been considered. The indicated
insufficiency of the explanation offered with respect to several of the acts alleged
to be violative outlines the pattern of interference and discrimination to the extent
that these have been shown.
The Union's organizational campaign here began early in April 1963. There were
several union meetings, the dates of which are not given. Randall signed a union
card soon after May 1; this was at the second meeting. The three other alleged
discriminatees signed cards on April 12.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By letter dated April 25, the Company was notified that the local Union herein
and its International i claimed majority representation of the sales and maintenance
employees, and requested recognition and the commencement of contract negotiations.
Woods, the Company's president, testified that he saw the letter on Sunday evening,
April 28. In a letter dated the 29th, he questioned the Union's majority representa-
tion and suggested that the Board's procedures be followed in connection with the
representation petition theretofore filed.
On or about April 29 or 30, the Company posted on its bulletin board several
notices dealing with health and safety or operational factors as applied to its sales-
men, with a threat of discharge or expulsion for violation. No such notices had
ever before been posted on the bulletin board.
Also immediately after receipt of the union representation claim, and specifically
-on the morning of April 30, Woods called at the home of the Company's maintenance
man, Blaylock, and there inspected the repair truck which Blaylock customarily
drove home and parked in his yard. Woods had apparently never before checked
the truck there. Woods loft after scolding Blaylock for not keeping the truck
locked, and the latter found a note on the seat warning him to keep the truck clean
` or else." To explain the visit, Woods testified that the truck was new; but later
that they had had it about 2 weeks.
This statement of concern and the reason for the visit to Blaylock's home would
be more credible had it manifested itself earlier instead of, like several other acts,
immediately after the request and refusal of recognition. We need not dwell on the
posting of a driveway speed limit allegedly because a prior sign had been stolen
at some unstated time. This later notice was not covered by the advice to com-
municate with employees in writing which Woods testified he had just received at a
regional meeting. He explained that it was urged at that meeting that figures be
obtained on the cost of trouble calls, and that truck safety and personal hygiene were
discussed at length. The reference to cost of calls may explain the direction to
Blaylock to maintain a list.
As for the bulletin board notices concerning safety and personal hygiene, the
validity of such notices and the Company's authority to post them are not in issue.
The question is whether they were posted because of and to undermine union ac-
tivities. If the notices were prompted by advice or instruction at the regional con-
ference, there is no explanation for the threat of immediate discharge appended to
them. Such threats were not in keeping with Woods' testimony concerning the meet-
ing and the purpose of the notices; nor is there evidence that oral notices or instruc-
tions had in the past been accompanied by threats. The tone and timing of the
notices, with the other interference found, particularly the sudden pressure on Blay-
lock, indicate that these notices, with the newly added element of threat, were
posted with the intent to interfere with lawful concerted activities.
Further, if there was in fact some nondiscriminatory basis for the requirements or
duties imposed on the employees (aside from the new and threatening aspect noted),
it does not appear that all of the employees needed warnings; and the absence of
such basis and the announcements themselves without explanation of their necessity
at that time were violative. Such acts, immediately after the commencement of
organizational activities and request to bargain, tend to interfere with and restrain
employees in such activities and their right to engage therein.
The evidence indicates that the written notices with threats at this time were
used to interfere with employees' concerted activities. On the Company's right to
maintain health and safety rules were superimposed a coercive means. This war-
rants a finding of interference aside from Woods' intent in other connections. On
the other hand, to the extent that antiunion intent and timing are here evident, we
need not rely on the "inherently discriminatory" nature of the conduct, as noted in
the Erie Resistor case. As the Supreme Court there stated,2 "When specific
evidence of a subjective intent to discriminate or to encourage or discourage union
membership is shown, and found, many otherwise innocent or ambiguous actions
which are normally incident to the conduct of a business may, without more, be
converted into unfair labor practices."
In those instances, infra, in which discrimination is not found, the Company's gen-
eral motivation has not been overlooked; but the facts there are such as virtually to
have compelled the discharges regardless of motivation.
1 No issue has been raised concerning the joint claim. The letter was signed on behalf of
the International ; the Local is the Charging Party. The membership and designation cards
received name the International.
2N.L.R.B. v. Erie Resistor Corp., et al., 373 U.S. 221, 227.
SABINE VENDING CO. INC., ETC. 1015
One more incident can be cited (all need not be) in support of the allegation of
assignment of more onerous tasks because of employees' union membership or
activities. Routeman Scully testified that on April 30 (many things happened that
day) Olsowski, a route supervisor, followed him in another truck and to his stops,
made notes on his work, and at the end of the day called him into the office, repri-
manded him, and threatened discharge. The next day, Olsowski gave Scully a yel-
low pad and directed him to log various time intervals on the job; never before
had Scully had to do this.
Near the end of that week, according to routeman Dudley Sweat, Mrs. Woods in-
terrogated him with a suggestion, not alleged, that he withdraw from the Union.
According to Mrs. Woods, Sweat opened the discussion and himself raised the union
question. Aside from the fact that any finding in this conversation or one with
Vice President Tomlin, both brought in by amendment at the hearing, would add
nothing of substance to the remedy,3 there is no basis for crediting Sweat rather
than Mrs. Woods and Tomlin. While not clear, it is apparently claimed that the
latter asked who was the main one "in on the deal"; Tomlin denied that this was
said. Were it of greater moment, we could concern ourselves with Tomlin's asking
Porter, "In effect why did they do it," and note that this is not covered even in the
complaint as amended.
B. The alleged violation of Section 8(a) (3)
Despite the interference already found and the timing which indicates that the
Company was aroused by and opposed to union activities, analysis of the evidence
with respect to each of the alleged discriminatees discloses that there were not only
ample reasons for termination of three of them, but that the reasons were so com-
pelling as to bar a finding that those discharges were in fact prompted by the union
activities rather than by the provocation or adequate reason which existed.
Large union buttons were distributed and apparently first worn by employees on
May 17. Although routeman Ogden testified to that date initially, he thereafter said
that he received a button on May 14 and wore it before Levorn Sweat was discharged.
The latter, who was discharged on May 16, did not testify concerning such buttons.
Ferguson and Randall prominently displayed a union button on their shirts prior to
discharge. Perhaps most significant on the question of company knowledge of em-
ployee activity in this small operation is Woods' testimony that he had seen Dudley
Sweat talking to some of the men about his problems, and that several people had
told him about it. As he put it, "And, things get back to you. My wife heard
things." This despite his subsequent denial that he had heard, prior to receipt of
the Union's letter of April 25, of union activity among the employees.
1. Porter
Porter testified that on April 29 or 30 he for the first time saw Woods checking
the loading of trucks before they went out. On May.1 Tomlin rode with Porter
part of the day, and later told-him that he was too slow. It appears in this connec-
tion that Olsowski had ridden with Porter before, and that the latter had several
times been told that he was too slow. Such testimony served merely to prolong
the hearing and conceivably to distract attention from the real issue. Suggesting
company knowledge of Porter's union sympathy are Tomlin's remarks that be could
not figure why Porter "did it," and, that he. wished the men had given him an-
other month.
Upon Porter's return to the warehouse on May 1, Tomlin asked him whether he
had taken anything out of the Goodrich Gulf Chemical plant when he served it the
day before. Porter stated that he had, a can of hand cleaner. Asked whether he
had taken it, 'he replied that a boy had given it to him. It was later brought out
that such cans were Goodrich property and were "all over the place." When
Tomlin asked whether the can belonged to that boy so that he could properly give
it away, Porter's reply was that he "figured it was as much his as it was anybody
else's." That this was not so Porter himself realized at some time, when he refused
the General Counsel's request that he name the Goodrich Gulf employee: he ex-
plained that he did not want to jeopardize the man's job. (It appears that Mrs.
Woods had seen Porter return to the warehouse with the can, which he then took
home.) After more discussion, Porter protested, "In other words, are you just
calling me an out-and-out thief?" Tomlin replied, "That's the way it looks to me."
8 Ontario Foods, Inc., 144 NLRB 1057.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the men went outside , Mrs. Woods vented her animus by remarking on an
accident in which Porter had been involved and threatening concerning it. When
Tomlin now asked for the can of hand cleaner , Porter at first denied that he had it.
This was no oversight , however, for when Mrs. Woods endorsed Tomlin's demand,
Porter went to his car , got the can , and gave it to Tomlin. The latter then told
him to consider himself on probation , and Mrs. Woods told Porter to leave his keys
on the desk until he talked with Woods the next morning.
On the morning of May 2, according to Porter , Woods told him that "bringing"
the can of cleaner out of the Goodrich plant was "pretty serious," and gave him
the choice of resigning or being fired for stealing . Whether to indicate condona-
tion by the Company or a vested right to engage in thievery, Porter testified that
several months before he had taken $5 from one of his machines to pay his house note
and had replaced the money out of his collections the following Monday; and that
he had admitted this to the Company and also that he had given merchandise away
from his truck.
Any doubt' concerning Porter's discharge exists only because of the Company's
general attitude as indicated by its harassment and interference , supra. But how-
ever lenient it had been with . Porter in the past, when it had given him "another
chance" (shortages on inventory , making them good, and reinventories are common
in this type of work; as for the $5, Porter had himself replaced it before it came
to the Company 's attention , and his testimony served but to magnify that offense),
his asking for and receiving from a customer 's employee a can which belonged to
the customer company was not only dishonest but could undermine Sabine Vending's
relations with its customers . The Company could not and reasonably would not
permit this . I find that Porter's discharge was not discriminatory.
2. Ferguson
Ferguson called Woods on May 20 and explained that he could not come in to
work because of a long-standing knee injury . When Woods suggested that he see
a doctor, Ferguson replied that there was no use in doing that; he had already been
told by a doctor that he needed surgery, which he could not or would not undergo;
he gets relief only by keeping his knee wrapped ; and Woods could check high school
records for verification of the injury . Continuing with Ferguson 's version as
presumably most favorable to him, Woods told him to see a doctor or he would
be terminated , and offered to let him see the company doctor. Ferguson did not
work that day. Nor did he come in on the 21st , when Woods called , explained
that he would be shorthanded , urged Ferguson to return , and then to see a doctor so
that the Company would know when he would be returning to work. To this Fer-
guson replied that there was no point in seeing a doctor since he could himself
"tell when [his ] knee quits hurting." Ferguson explained further that he saw no
point in seeing his own doctor again or in seeing the Company 's doctor, who was
not familiar with the case . When Woods asked when Ferguson would be able to
return to work, the latter replied that he did not know. (At one point this con-
versation was placed on the 22d .) Woods allegedly again told Ferguson that he
would be terminated if he did not go to a doctor, and Ferguson quite brazenly replied
that he "had no intention of attending the doctor."
On May 23 Tomlin called on Ferguson at home. We can omit cloak -and-danger
details concerning Tomlin's nervousness , his statement that she did not want Fer-
guson 's father, who is an official in another union, in the house while they spoke,
and his question concerning a tape recorder as he looked under the furniture. Ex-
plaining that she was second in command (he 'had been president of Tomlin Auto-
matic Sales prior to its merger with Sabine Vending ), Tomlin asked Ferguson to
return to work ; the latter parried by asking how Tomlin could overrule Woods, adding
that he "couldn 't come back to work under the present circumstances because [he]
had been terminated by Mr. Woods." As I noted at the hearing, Ferguson was at
times evasive while at other times he extended himself to prove his case. At, this
point he injected the suggestion of a-one-man 'strike as he asked Tomlin "how come
all of a sudden this sudden hardship and the bulletins. .
We need not review Tomlin 's version of his conversation with Ferguson beyond
noting his testimony that the latter said that he was well enough to return the next
day but would not since Woods had fired him. Aside from the fact that Woods
had imposed a reasonable condition , the General Counsel has not indicated how
much more formal an invitation to return should have been extended to Ferguson.
In an apparent further effort to get Ferguson to come back , Woods - called him
shortly after Tomlin 's visit on the 23d . (The timing of the various calls is not very
clear.)
SABINE VENDING CO. INC., ETC. 1017
All of this quite clearly indicates the findings to be made. Ferguson first made
it plain that his ability to hold the job and his further attendance were quite un-
certain; he told Woods that he could not work at that time or regularly thereafter.
There was no evidence of discrimination or harsh treatment When-Woods tried to do
something about it. The latter's reasonable efforts as he told Ferguson to see his
own or the Company's doctor were met by a stubborn refusal to see a doctor and an
insistence that the Company accept this as a continuing situation, there being no
indication when he would be able to report for work. Someone would have to run
Ferguson's route while he was absent. Would this be a matter of a supervisor or
someone else temporarily substituting for him, or would additional help have to
be sought? If the latter, would it be on a temporary basis? Ferguson could report
only that the knee "just flares up."
Ferguson's highhanded referral of Woods to his earlier records was no adequate
substitute for a current report from a physician. If the several calls which Woods
made to Ferguson did not count with the latter because of the insistence that he see
a doctor, I find that the unreasonable aspect in this situation was Ferguson's refusal
to see the Company's doctor because he was not familiar with the case, and his own
doctor because, as he put it, "There was no point." It would indeed be surprising
had Woods not "asked [Ferguson] to go see a doctor to know when the knee would
be all right." When Woods on his later call told Ferguson that the Company was
shorthanded and asked him to see a doctor so that it could know when he would
return to work, and finally asked when he would be back, Ferguson merely replied
that he did not know. The claim of constructive discharge can of course be stretched
to cover this also.
Even were there a constructive discharge of Ferguson, as the General Counsel
asserts, there would need be no reinstatement offer, and the backpay would be limited
to 3 days since on May 23 Tomlin told Ferguson that he could return to work. We
cannot here, despite Ferguson's attempt to do so on May 23, determine that Tomlin
lacked the authority to call him back to the job.
We have not forgotten that Ferguson had been wearing a union button since
May 17. Further on the issue of company knowledge and attitude toward him is
the testimony by Mrs. Henderson, formerly employed by the Company as a book-
keeper, that before Ferguson's discharge, when she told Mrs. Woods that Ferguson's
father was secretary of a union, Mrs. Woods excitedly asked why she had not told her
this before and added that they knew who was organizing and getting the boys
together. According to Mrs. Woods, she replied that she did not think that the
position held by Ferguson's father had any bearing because she did not think that
Ferguson "started all this"; she had another opinion. (This of course provides fertile
ground for speculation with respect to the other alleged discriminatees.)
We can believe that Mrs. Woods was concerned with Ferguson's potential as an
active influence toward organization of the employees. But I cannot conclude that,
except for this, the Company would have accepted his stubborn and unreasonable in-
sistence that it retain him for work whenever he alone decided that he was in condi-
tion to perform it. Not only did he reject the offer to help him with the services of
the company doctor, which he was not obliged to accept, but he fell short of and
refused even to recognize his obligation to provide the Company with information
as to when it might expect him to work in the future.
As for his reference to another employee, Carpenter, riding with him, this giving
the impression that it was part of a plan for discriminatory replacement, Ferguson
disingenuously failed to state as he later did that he heard that Carpenter also rode
with the other men. This is of a piece with the impression which he left on direct
examination of expense in connection with Woods' request that he see a doctor;
prodded further, he supplied the additional detail that he had been offered the services
of the company doctor. I find that Ferguson was not discriminately discharged, di-
rectly or constructively.
I have not overlooked the date of Ferguson's discharge (or quitting, in the light of
his refusal to see a doctor) with relation to the Union's request for recognition, the
Company's animus, and the violative acts as found; .nor Tomlin's advice to him early
in May "that he lay low until this mess blows over." Such a statement by Tomlin,
which he denied making, "could be construed as indicating sympathy and support for
Ferguson.
3. Randall
Randall was hired early in 1963 to paint and repair vending machines. At times
he assisted Blaylock in connection with install ations. Sums for social security and
withholding tax payments were first taken out of his earnings on March 29. This
supports the Company's position that he was hired as a temporary employee: only
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as his earnings approached the $600 personal income tax figure ( he had earned
$501.15 through March 22) did the Company begin to withhold a portion. We
recall that he signed a union card soon after. May 1.
On or about May 28 Woods told Randall that there was no more work for him
although, Randall testified , there were machines which needed painting and repairs;
some were "in pretty bad shape." The significant question , however , is how much
time or work would be required to repair , not all of the machines , but as many as the
Company needed ; and in this connection we can rely on the testimony by Blaylock,
called by the General Counsel, that at the time of the hearing eight machines which
Randall had painted had not yet been put into service.
Unlike the other discharges , that of Randall was without reflection on him.
His employment was for a limited and temporary purpose even though this had not
been discussed with him; it appears from the transcript in the representation pro-
ceeding that nothing had been said to him about the job being temporary or
permanent . Randall was discharged when there was no longer any need for his
services although he has since been recalled from time to time . With full awareness
of the violations found, I find no discrimination here.
4. Levorn Sweat
We recall Woods ' testimony that he had himself . observed and several people
had spoken to him about Dudley Sweat 's complaint . From this , the fact that Mrs.
Woods "heard things," and her statement of knowledge to Mrs. Henderson, it may
be fairly concluded that Woods was aware of the support for the Union among the
employees ; and that, with the same determination which prompted him to ignore
employees ' statutory rights as he threatened and imposed burdens upon them, he
took advantage of an accident involving Levorn Sweat to rid himself of this union
sympathizer . Not only did the events leading up to this discharge , unlike those in the
other cases , not clamor for such action by the Company , but the Company 's reaction
in this respect and in the light of similar situations discloses the pretextual aspect of
the stated reason for discharging Sweat.
Sweat had been employed by the Company since its operational merger on
January 1 , 1963, with Tomlin Automatic Sales, and had before that been a Tomlin
routeman . He attended union meetings and was one of the seven who we know
signed a union card on April 12. (Randall signed later. Ogden, Dudley Sweat,
Scully, and Blaylock remain in the Company 's employ.)
On May 15, while behind a large truck on a "Yield" section of a road, Sweat
slowed down but not sufficiently and drove into the rear of the truck . The latter
had stopped and was now continuing forward, but not as fast as Sweat thought it was
moving. A photograph received in evidence indicates that the right front and right
side of Sweat's truck were dented and that the windshield was cracked on the right
side. Repair cost , covered by insurance , was $270.43. Woods testified that the
Company has not taken pictures of any other truck -involved in an accident, the
others being minor. The other driver evidently did not notice the impact: he con-
tinued on without stopping . The other having left , Sweat drove to a filling station less
than a quarter mile away (according to Woods, the distance is approximately 2 miles),
where he telephoned and spoke with Mrs. Woods. She was displeased because he
had not called the police , and referred him to his brother Dudley, who told him to
bring the truck in. At the office , Tomlin "chewed ( Sweat ) out," calling him care-
less, and told him to pick up another truck at the Company 's airport operation and
load it for the next day.
The next day, May 16 , Woods called Sweat into the office , told him that his ac-
cident record was bad , that he was a sloppy driver, and that he would have to let him
go. (This is quite different from Woods ' testimony that after he had discussed "the
whole story" with Sweat , the latter said, "I think you ought to terminate me.")
Woods also asked Sweat about an accident he had had when he started to work for
Tomlin in May 1962 , and one in June 1962, when he was driving his father 's truck,
not on company business . In the first of these, he had struck a parked automobile;
unable to find the owner of the other car, he had left his own and his employer 's name;
he did not call the police, and was neither "chewed out".by Tomlin nor discharged.
In June 1962 Sweat had been following another truck and ran into its rear. Sweat
told Tomlin immediately afterward , again without untoward results.
Tomlin 's testimony concerning the May 1962 accident involving his truck is
significant in two respects : for its apparent insignificance as 'far as Tomlin was
concerned either at that time or afterward ; and for the $150 damage to the other
automobile , which with the cost of repairs to Tomlin 's truck of which we were not
SABINE VENDING CO. INC., ETC. 1019..
informed would leave the $270 figure less than startling (the 'issue being not the
reasonableness of the effect of the latter damage on the Company, but whether in
fact it had the alleged effect). As for the June accident, Tomlin, asked to omit
details of the accident, did not indicate any concern or warning to-Sweat at that
time. Only 11 months later, .on May 15, 1963, did he reprimand Sweat: at that
time, allegedly, it "seemed like it was becoming a pattern with him." Perhaps to
minimize the effect of his telling Sweat to get another truck at the airport for the
next day, Tomlin testified that he could not recall whether he told Sweat to do that.
Clearly Sweat did not do it on his own, and it was not so claimed. Aside from the
proof of careful preparation and presentation of the Company's case as this point
was not overlooked, such testimony by Tomlin reflects his own more recent bias in
marked contrast to his indicated attitude in 1962 with respect to Sweat's earlier
accidents. The actual significance which this 1963.accident held for the Company
and the pretextual nature of Woods' action against Sweat can be noted in the
different way in which Porter's case had been handled, supra, although reliance
need not be placed on this difference. In that 'situation, where there was no dis-
simulation, Tomlin immediately told Porter that he was on probation, and Mrs.
Woods directed him to leave his keys, i.e., not go out on his route, until he saw
Woods the next day.
Later on May 15, Tomlin allegedly told Woods of the accidents the year before,
they discussed Sweat's carelessness and failure to call the police, and it was decided
to discharge him. Wholly aside from the intent already noted and the Company's
proclivity to interfere with employees' activities, I do not believe that what Tomlin
had almost casually accepted before appeared so serious to him a year later. True,
the Company could take action-on its own evaluation of Sweat even if that were un-
reasonable; and I do not suggest that such an evaluation would be or is here found
to be unreasonable or that the Company's explanation is insufficient: rather, I do
not believe that the Company made that evaluation and that it discharged Sweat
because of it. It may be noted that several times, as he related his May 15 conver-
sation with Sweat and elsewhere, Tomlin displayed marked uncertainty.
Beginning with his reference to Sweat's May 1962 accident, Woods' version was
highly colored. (The credibility aspect in his testimony concerning Sweat places
a great strain on my findings with respect to the other alleged discriminatees.)
Contrasting with Tomlin's attitude when it occurred and his later description, is
Woods' testimony that Tomlin now told him that Sweat had had "a very bad accident."
Woods testified that although two or three drivers had had minor accidents, he
had never before discharged anyone for having an accident or being a poor risk;
the Company had never had a major accident. The suggestion here that Sweat's
was a major accident is not supported by the facts or even by Woods' testimony.
It does appear that three accidents in which Blaylock was involved, all with coin-
pany vehicles and within approximately 1 year, were not serious; but from Blay-
lock's more detailed description they were not as trifling as Woods pictured them.
Beyond this, there is not a word to indicate that the extent of the damage, belatedly
emphasized, prompted Sweat's discharge: Woods had given as his reason for the
termination that "he was a poor risk . . . and proved that he was a negligent
driver." If Woods was concerned because Sweat was allegedly accident prone, he
manifested no concern over the number of Blaylock's accidents, all of which (unlike
all but the last of Sweat's) involved Woods' property.
From Woods' testimony, Sweat was discharged not because of the May 1963
accident, his first since his employment began with the Respondent Company, but
allegedly because he was accident prone as indicated by this and the two accidents in
which he had been involved a year earlier, first in Tomlin's truck and then on a
personal trip. Although no rebuttal evidence was offered after Woods referred to
one of the earlier accidents as "very bad," he was relying, in. discharging Sweat,
on the information given him by -Tomlin. But we have seen that Tomlin himself
had not so characterized Sweat or any of his accidents, and he now directed him
to load up for the next day; at no time did Tomlin speak of firing Sweat although
he allegedly reprimanded him and discerned a "pattern." This is not to pass judg-
ment on the wisdom or sufficiency of any belief by Woods that Sweat was a poor
risk and should be discharged. Rather, I do not credit Woods' account of the
importance which he attached to all of this. I am here neither condoning accidents
nor questioning the Company's right to discharge Sweat because of his negligence.
But I believe, from all of the testimony and from Woods' indicated attitude, that
the assigned reason was pretextual, the motivating, factor being the organizational
activities and the Company's desire to avoid recognition of the Union, as it could
were enough union supporters eliminated.
.1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As in the case of the interference in connection with the posted notices, supra,
the evidence of Woods' intent elsewhere supports the finding of violation here,
where his action was not "innocent or ambiguous ." In sum , and aside from the
Company's general motivation , it was discharging Sweat not because of what now
occurred but in alleged reliance on a record which antedated his present employ-
ment. Aside from the pretextual reference to year-old incidents, the record of
other employees shows clearly that the Company did not have a one-strike-and-out
policy. Nor is there significance in the fact that Blaylock, although harassed, was
not discharged. A clean sweep need not be made,4 and Blaylock with his special
skills would be harder to replace. For whatever reasons, the Company did termi-
nate the employment of four of the eight who signed union cards, these eight (with
the exception of the temporary employee, Randall) and one other (Burchfield)
constituting an appropriate unit , as we shall see. But aside from any significance
which may be urged on the basis of the other terminations, which have been found
not to have been violative, I find that Sweat was discharged because of his union
activities and in order to defeat or impede organization of the employees and recog-
nition of the Union.
C. The alleged violation of Section 8(a)(5)
We recall that by letter dated April 25, 1963, the International Union and Local
258 (jointly referred to in the letter as "the said Union") requested that the Com-
pany recognize and bargain with them as exclusive bargaining agent of its sales and
maintenance employees . It was agreed at the hearing that route salesmen and
driver-salesmen are interchangeable terms. They refer to drivers of company trucks
who deliver products to company vending machines, collect cash from the machines,
and otherwise service and maintain the machines. If a route salesman is unable to
repair a machine on his route, he informs the office, and Blaylock, the maintenance
man, is dispatched to do it.
I would have little difficulty in finding, as alleged , that the following unit is an
appropriate unit within the meaning of Section 9(b) of the Act:
All driver salesmen and maintenance employees of the Company employed at
its Beaumont , Texas, establishment exclusive of all other employees , guards,
watchmen , office clericals , and supervisors as defined in the Act.
This included seven route salesmen 5 and Blaylock. Since all of these eight except
Burchfield had signed a union card, a finding would follow that the Union repre-
sented a majority , as alleged.
It will now suffice to indicate in general terms because of a serious defect which
will be noted, but for the guidance of the parties, the findings warranted by the de-
tailed evidence concerning the duties of Blaylock, Trapp, Marsh, Carpenter, and
Olsowski; and the reasons for excluding the latter four from the unit herein alleged
and found.
The maintenance work done by the drivers is largely limited by their ability and
their other duties; there is sufficient community of interest and function to permit
inclusion of the maintenance man, Blaylock . Only after the request and refusal to
bargain did the Company attempt to confer supervisory authority on Blaylock, and
over an admittedly temporary employee at that. So far from excluding Blaylock
from the unit, this incident underscores the Company 's intent and its attempts to
destroy the Union's majority. Nor did Woods here enhance his credibility in his
attempt to maintain , contrary to his earlier testimony , that Blaylock had hired and
fired employees. Blaylock is not a supervisor; he is in the unit alleged.
With respect to Carpenter it may be noted that, while Woods testified that
Carpenter was at first primarily a warehouseman but started to ride trucks, riding
with most of the drivers, in March, April, or May, Scully more reliably pinpointed
Carpenter's introduction to the route salesman's job as having occurred about the
second week in May. Had Carpenter been doing this work earlier, his explanation
at that time to Scully, a knowledgeable employee, that he was learning the routes to
service machines would have been unnecessary and pointless. In fact, Woods testi-
fied that "from the time (Carpenter) started to work for me until the time he
terminated, he was doing odd jobs of all different kinds, from sweeping out the
warehouse to riding on the trucks." Certainly Carpenter's "hot shot" deliveries, count-
ing money, and checking men in and out of the warehouse, all cited in the Company's
* N.L.R.B. v. W. C. Nabors, W. C. Nabors Company, 196 F. 2d 272, 276 (C.A. 5), cert.
dented 344 U.S. 865.
5 Porter, Ferguson, Levorn Sweat, Dudley J. Sweat, Scully, Ogden, and Burchfield.
SABINE VENDING CO. INC., ETC. 1021
brief, do not bring him within the unit. I find that Carpenter was not a route sales-
man, but that the Company sought to expand or dilute the unit by including him after
it received the request for recognition and questioned the Union's majority. (The
attitude here disclosed supports the findings of violation, supra.) The Company's
incantations, that he was a route salesman, to Carpenter; that he was not a supervi-
sor, to Olsowski-so far from being determinative, reflect attempts to dissemble their
actual status.
Whatever Olsowski's duties when he was employed by Tomlin (there being testi-
mony that Tomlin himself took over his duties), Woods told Scully in February or
March that he was giving him a raise on Olsowski's recommendation. It stands with-
out contradiction that, as noted supra, Olsowski followed a driver, made notes on his
work, reprimanded, and threatened discharge. Olsowski was a supervisor, was so
regarded by the employees, and was not in the unit. (I am not relying on Woods'
characterization, now denied, in the representation proceeding, of Olsowski as a
route supervisor. Counsel for the Company at the time denied that Olsowski was a
supervisor within the meaning of the Act.)
Mrs. Trapp and Mrs. Marsh work at fixed locations operated by the Company
in the Petroleum Building and Texaco Island respectively. They are certainly not
route salesmen; deliveries and pickups at their location are made for them by route
salesmen. Nor does their incidental supervision of machines at the location where
they work constitute them maintenance employees. Aside from any question of
skill, their other duties, are such as to preclude more than incidental work on the
machines. If they have on occasion "shot trouble" elsewhere, they did not drive a
truck. Their work, their earnings, and the basis for their pay are dissimilar from
those of driver-salesmen. Perhaps in recognition of this, they were not included in
the stipulation concerning the unit entered into between the Company and the Union
in the aborted representation proceeding .6
The pros and cons concerning these two female employees whom the General
Counsel would exclude from the unit indicate that he is correct in his position: While
performing some sales functions, they are more nearly restaurant or cafeteria work-
ers; with respect to both function and pay (and sex 7) they are not regarded as driver-
salesmen although they are sales employees. But the very strenuousness with which
the General Counsel maintained this indicated the serious variance between the unit
of driver-salesmen and maintenance employees alleged in the complaint and sought
in this proceeding, and the request for recognition on behalf of sales and maintenance
employees.
While calling for an election, the Company in its letter of April 29 in reply to the
Union's request for recognition did not raise any question concerning the unit there
described and sought .8 But the issue presented in detail at the hearing is whether
certain individuals are in the unit as described in the complaint and whether there
were a request and refusal as alleged . Thus, although the Union's and Company's
letters indicate a request and refusal to bargain, these do not support the allegations
which refer to a substantially different unit.
Whether a unit of sales and maintenance employees would be appropriate need
not be determined; there is neither allegation nor proof that such a unit is appropri-
ate. Hence there is no proof of request and refusal to bargain with respect to an
appropriate unit . Chandler, the Union's international representative, testified that he
was "interested in" the unit as alleged in the complaint; but the Company's refusal
did not extend beyond the request in Chandler's letter of April 25. The allegations
of request and refusal to bargain with the Union as the representative of a unit of
driver-salesmen and maintenance employees is not supported by the request and
refusal which related to sales and maintenance employees. The question before
us for adjudication is not whether the originally requested unit of sales and main-
tenance employees is appropriate. . The unit sought in this proceeding, the violation
alleged, and the remedy which would lie therefrom relate to a substantially different
unit.
° Case No. 23-RC-2064. "* It might be noted parenthetically that even were Carpenter,
Olsowski, Trapp, and Marsh included in the unit, the Union, with 7 cards, represented a
majority whether the unit consisted of 8 or 12.
4 The General Counsel brought out that where the Union's contract at another company
included a female employee, she actually sold and delivered from a delivery truck: she
was a driver-salesman and not, like Trapp and Marsh here, a stationary or inside employee.
Any contention by the Company as to its good-faith doubt of the Union's majority is
refuted by the Company's entire subsequent course of conduct. Peterson Brothers, Inc.,
144 NLRB 679.
-1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This issue - was pointed out by counsel for the Company at the beginning of the
hearing. - But it has not--been-met by the General Counsel beyond the following
statement in his brief : "The fact that the description - of the unit in the request to
bargain differs slightly from the unit described in the complaint is not of significant
consequence . See Brewery and Beverage Drivers, Teamsters , Local 67 v. N.L.R.B.
257 F. 2d 194." In that case the employees considered were drivers in different
categories , and the request and refusal referred to "drivers and driver-salesmen."
The request in the instant case, as noted , was materially different in its inclusion of
sales employees who were not drivers and whom the complaint and the General
Counsel now properly excluded.
Were the unit alleged similar to that for which recognition was requested, we
'would have not only the request and direct refusal alleged, with proof of majority,
but also a Joy Silk Mills 9 finding of refusal to bargain, based on the interference
and discrimination found. Here again the Union and the General Counsel are left
with the opportunity to make a request for an appropriate unit and, if formal
proceedings be necessary , conforming allegations.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Company, set forth in section II, above, occurring in connec-
tion with the operations described in section I, above, have a close, intimate, and sub-
stantial relation to trade, commerce, and traffic among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
.commerce.
IV. THE REMEDY
- Having found that the Company has engaged in and is engaging in certain unfair
labor practices affecting commerce, I shall recommend that it cease and desist there-
from, and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Company, by discharging Levorn Sweat, discriminated
against him in respect to his hire and tenure of employment in violation of Section
8(a) (3) of the Act. I shall therefore recommend that the Company cease and
desist therefrom and from infringing in any other manner upon the rights guaranteed
in Section 7 of the Act. I shall further recommend that the Company offer to Sweat
immediate reinstatement to his former or substantially equivalent position without
prejudice to his seniority and other rights and privileges, and make him whole for
any loss of pay sustained by reason of the discrimination against him, with interest
at 6 percent, computation to be made in the customary manner.1° I shall further
recommend that the Board order the Company to preserve and make available to the
Board, upon request, payroll and other records to facilitate the checking of the amount
of backpay due.
It has been further found that the Company, by assigning more onerous tasks to
employees because of their union membership or activities, interfered with, restrained,
and coerced its employees in violation of Section 8(a)(1) of the Act. I shall there-
fore recommend that the Company cease and desist therefrom.
For the reasons stated in the subsections entitled "Porter," "Ferguson," and
"Randall," I shall recommend that the complaint be dismissed insofar as it alleged
the discriminatory discharge and failure and refusal to reinstate Porter, Ferguson,
and Randall.
For the reasons stated in the subsection entitled "The alleged violation of Section
8(a) (5)," I shall recommend that the complaint be dismissed insofar as it alleges
violation of that Section.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Sales and Delivery Local 258, AFL-CIO, International Union of United
Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
VJoy Silk Mills, Inc., 85 NLRB 1263
30 The Chase National Bank of the City of New York, Can Juan, Puerto Rico, Branch,
65 NLRB 827; Crosset Lumber Company, 8 NLRB 440; Republic Steel Corporation V.
N.L.R B , 311 U.S. 7; F. W. Woolworth Company, 90 NLRB 289, 291-294; Isis Plumbing
k Heating Co, 138 NLRB 716.
SABINE VENDING CO. INC., ETC. 1023
2. All driver.salesmen and maintenance employees of the Company employed at
its Beaumont, Texas, establishment exclusive of all other employees, guards; watch-
men, office clericals, and supervisors as defined in the Act, constitute a unit appro-
priate for the purpose of collective bargaining within the meaning of Section 9(b)
of the Act.
3. By discriminating in regard to the hire and tenure of employment of Levorn
Sweat, thereby discouraging membership in a labor organization, -the Company has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. By such discrimination and by assigning more onerous tasks to employees
because of their union membership or activities; thereby interfering with, restrain-
ing, and coercing employees in the rights guaranteed in Section 7 of the Act, the
Company has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a) (l) of the Act.
5. The aforesaid labor practices are unfair labor practices within the meaning
of Section 2(6) and (7) of the Act.
6.. The Company has not engaged in unfair labor practices within the meaning
of the Act by discharging and failing to reinstate Porter, Ferguson, and Randall.
7. The Company has not engaged in unfair labor practices within the meaning
of Section 8 (a) (5) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law; and upon
the entire record in the case, I recommend that the Company, Sabine Vending Co.,
Inc., Division of United Servomation Corporation, Beaumont, Texas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Sales and Delivery Local 258, AFL-CIO, Inter-
national Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers
of America, AFL-CIO, or in any other labor organization by discriminatorily dis-
charging any of its employees or discriminating in any other manner in respect to
their hire or tenure of employment, or any term or condition of employment.
(b) Assigning more onerous tasks to employees because of their union member-
ship or activities.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which is necessary 'to effectuate the
policies of the Act:
(a) Offer to Levorn Sweat immediate, and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights
and privileges.
(b) Make said Levorn Sweat whole for any loss of pay he may have suffered by
reason of the discrimination against him, in the manner set forth in "The Remedy"
section of this Decision.
(c) Preserve and, upon request, make available to the Board or its agents all
payroll and other records, as set forth in "The Remedy" section of this Decision.
(d) Post at its place of business in Beaumont, Texas, copies of the attached
notice marked "Appendix." 11 Copies of said notice, to be furnished by the Re-
gional Director for the Twenty-third Region, shall, after being duly signed by the
Company's representative, be posted by the Company immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its employees are customarily posted.
Reasonable steps shall be taken by the Company to insure that said notices are not
altered, defaced, or covered by any other material.
"In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board 's Order be enforced
by a decree of the United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and
Order."
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for the Twenty-third Region , in writing , within
20 days from the receipt of this Decision, what steps have been taken to comply
herewith.12
It is further recommended that the complaint be dismissed insofar as it alleges
the discriminatory discharge and failure to reinstate Horace L. Porter, Larry L.
Ferguson, and Isaac Randall.
It is further recommended that the complaint be dismissed insofar as it alleges
violation of Section 8(a) (5) of the Act.
11 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, In writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Sales and Delivery Local 258, AFL-
CIO, International Union of United Brewery, Flour, Cereal, Soft Drink and
Distillery Workers of America, AFL-CIO, or any other labor organization by
discriminatorily discharging any of our employees or discriminating in any other
manner in respect to their hire or tenure of employment, or any term or condi-
tion of employment.
WE WILL NOT assign more onerous tasks to employees because of their union
membership or activities.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of the right to self-organization, to form labor organi-
zations, to join or assist Sales and Delivery Local 258, AFL-CIO, International
Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers
of America, AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
WE WILL offer to Levorn Sweat immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole for any loss of pay suffered
as a result of the interference, restraint, coercion, and discrimination against
him.
All of our employees are free to become, remain, or to refrain from becoming or
remaining members of Sales and Delivery Local 258, AFL-CIO, International Union
of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America,
AFL-CIO, or any other labor organization.
SABINE VENDING CO., INC., DIVISION OF
UNITED SERVOMATION CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative). (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full' reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capitol
8-0611, Extension 296, if they have any question concerning this notice or com-
pliance with its provisions.