Petroleum Carriers, Inc.

PETROLEUM CARRIERS, INC. 495 V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I recommend that it cease and desist therefrom and that it take the following described remedial action designed to effectuate the policies of the Act: 1. Rescind its rule respecting distribution of literature on its premises, insofar as the rule prohibits the distribution of union literature by union representatives on its parking lot at its Paris, Texas, plant, and alongside the walkways from the gate- house to the parking lot and the drive. 2. Post an appropriate notice informing the employees of its action. In view of the nature of the violation, I deem a narrow cease and desist order .appropriate and warranted. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Steelworkers of America, CIO, is a labor organization within the mean- ing of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of right guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] PETROLEUM CARRIERS, INC. and LOCAL 749, GENERAL DRIVERS, WARE- HOUSEMEN AND HELPERS UNION, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. OF L. Case No. 18-CA-557. July 28, 1954 Decision and Order On February 18, 1954, Trial Examiner James A. Shaw issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the In- termediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' 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 Inter- mediate Report, the exceptions and brief, and the entire record in the case, and finds merit in the exceptions. The Board, accordingly, adopts the findings of the Trial Examiner only to the extent that they are consistent with this Decision and Order. 1 The Respondent's request for oral argument Is hereby denied as the record and the ,exceptions and brief, in our opinion, adequately present the issues and the positions of the parties 109 NLRB No. 40. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We do not agree with the Trial Examiner's finding that the Re- spondent discharged employee Dale Rex in violation of Section 8 (a) (3) and (1) of the Act. The sole allegation of the complaint is that the Respondent, on Au- gust 15, 1953, discharged Rex because of his activities on behalf of the Union. The Respondent denies this allegation, and further contends that the discharge was caused by Rex's failure to offer any explanation or apology for having reported late for work on the day of the dis- charge. The Trial Examiner found that "the true motive" for the Respondent's action was that Dirs. Nina Enevoldson,2 the dispatcher for the Respondent's Watertown truck terminal, was "convinced that Rex was the motivating force behind the Union's organizational efforts and its leading protagonist among the employees under her supervision." Rex was hired by the Respondent in April 1953. Shortly after, he discussed the Union with fellow drivers and arranged meetings with union representatives at both Watertown, his place of work, and Sioux Falls, the main terminal. At these meetings, held late in July and early in August 1953, almost all the drivers joined the Union and thereafter wore their union buttons openly. Neither the Respondent's general manager, Thomas, in Sioux Falls, nor Nina in Watertown interfered in any way with these activities and there is no indication that either knew of Rex's role of organizer. Shortly after joining the Union, a number of Sioux Falls drivers spontaneously raised the question of whether they could obtain as many benefits through the Union as the Respondent had voluntarily accorded them. One of the nonunion drivers suggested that they form a committee to deal directly with the Respondent. A deputa- tion of two drivers then went to see the Respondent's vice president and general manager, Thomas. The deputation told Thomas that most of the drivers had joined the Union. Thomas replied that unions were good for employees, but thought his own company was kind of small. The group then brought forward the idea of a committee to represent the employees. Thomas approved the idea and suggested that the deputation discuss the matter with their fellow drivers in Watertown. No mention was made of Rex in this conversation. Shortly after this meeting with Thomas, the two-man deputation telephoned Norman Schultz, the oldest Watertown driver in point of service with the Respondent, and arranged a meeting for the follow- ing Saturday, August 15, 1953, at Watertown, to discuss the formation of a committee. Several days later, Schultz and Rex asked Nina for time off on August 15 to meet with the representatives of the Sioux Falls drivers. Nina refused the request on the ground that Thomas had not informed her of such a meeting. 2 Referred to as Nina in the Intermediate Report and hereinafter. PETROLEUM CARRIERS, INC. 497 During the morning of Saturday, August 15, a group of 3 Sioux Falls drivers arrived at the Watertown terminal and asked Nina to give Schultz and 2 other senior drivers, Meseburg and Bransurd, time off in which to participate in the planned meeting.3 Nina replied that she had no objection to Meseburg and Bransurd attending the meeting as these men were not scheduled to make another trip that day. However, she at first refused to release Schultz, who was sup- posed to make a trip later that day, upon the ground that Thomas had not told her anything about a meeting or an arrangement to give drivers time off in which to attend it. Finally, after much persuasion she consented to excuse Schultz. No mention was made of Rex in this discussion and no request for his release was made. The meeting of the Sioux Falls and Watertown representatives was held at a local restaurant. Although not invited, Rex attended and opposed formation of the committee as did Larson, another Water- town driver. Rex was present at the meeting from 11 a. in. to 2: 15 p. in., when it adjourned. He was supposed to be available for duty from 12 noon on that day and knew that he was scheduled to make a delivery to the town of Claremont on the arrival of his truck at the Watertown ter- minal, which was expected to be about noon. Rex checked with the office by phone twice before 12. 30 p. in. to learn if his truck had ar- rived. He made no further check until about 2: 40 p. in., when he personally reported at the terminal. The truck arrived a little after 1 p. m. Meanwhile Nina had tried unsuccessfully to reach him at his home. She had to stay at the office to wait for his arrival, although ordinarily she did not work on Saturday afternoons. When Rex reported for duty at 2: 40 p. in., he made no explana- tion of his tardiness, but asked for his trip order. Nina refused to give him the order, but instead made it out to another driver. With- out saying anything, Rex got up and left. That evening he telephoned Nina at her home and asked for his trip order for Sunday. When she replied that he would not be getting any more orders, he asked whether that meant that he was fired. She answered in the affirma- tive, but added that he could ask Thomas to put him back to work. The Union brought the matter to the attention of Thomas who asked 8 The Trial Examiner found that the Sioux Falls drivers came to Watertown as agents of the Respondent for the purpose of persuading the drivers there to reject the Union and to join with them in the organization of a "Committee " There is no such allegation in the complaint, nor is there any factual or legal basis for this finding. Agency is "the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act" ( Restatement, Agency § 1 ). The record is clear that the idea of forming an employee committee originated with the 'Sioux Falls drivers. In no way does the evidence warrant the inference that the drivers intended to act in the Re- spondent's behalf or under its control, or that the Respondent authorized them to act on its behalf. Accordingly , we reject the Trial Examiner's finding that the Sioux Falls drivers acted as agents for the Respondent. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nina for a written explanation. After receiving this explanation, Thomas refused to reinstate Rex. The General Counsel has the burden of proving by a preponderance of the evidence that the Respondent discharged Rex for discrimina- tory reasons. To make out his case, the General Counsel had to prove that Nina was aware that Rex was the protagonist for the Union and that this was the reason why she discharged him. We think that the proof fails on both grounds. There is no affirmative evidence that Nina knew that Rex was the principal organizer for the Union. Nor is there sufficient circum- stantial evidence to warrant such an inference. Nina admitted that she knew that the Watertown drivers had joined the Union, but this knowledge she obtained from the fact that many of the Watertown drivers, including Rex, openly wore union buttons. Rex's button was no different from that of the others. The only time Rex spoke to Nina about matters pertaining to a union was when, several days before August 15, he and Schultz asked for time off to attend a meet- ing with the Watertown drivers on August 15, and was refused. That conversation revealed nothing about his leadership. Moreover, this proposed meeting was, if anything, antiunion. Also, on August 15, the Sioux Falls drivers asked Nina to release Schultz, Meseburg, and Bransurd. They made no mention of Rex. Nor is it likely that Nina learned of Rex's activities from Thomas. There is no evidence to show that the Sioux Falls drivers had mentioned Rex's name when they informed Thomas of the fact of union organization and their plans to form a committee. Neither is there any evidence that Thomas had, by other means, learned of Rex's role in behalf of the Union. Further, Nina and Thomas both testified without contra- diction that they had not discussed union matters during Thomas' visit to Watertown on August 13 or 14.4 In support of his conclusion that Nina discharged Rex for dis- criminatory reasons, the Trial Examiner further found that she had a "deep seated antipathy towards the Union." This finding is based on an incomplete analysis of Nina's conversation with Schultz and Rex when the latter asked her for time off in which to attend a meet- ing with the Sioux Falls drivers.' In this conversation Nina told 4 Thomas testified that he did not inform Nina of the contemplated employee meeting because he did not know if, where, or when the meeting would take place , as he had left Sioux Falls shortly after his conversation with the Sioux Falls drivers . We consider this explanation to be reasonable and cannot agree with the Trial Examiner 's finding that Thomas' and Nina's uncontroverted testimony on this matter cannot be accepted as "con- trary to the realities of the situation ." The Trial Examiner's finding discrediting Thomas and Nina is based on speculative and unwarranted inferences from unrelated factual assumptions, such as the assumed receipt by Thomas of the Union's representation peti- tion before he arrived at Watertown. Moreover, Nina's reluctant permission to Schultz to attend the meeting with the Sioux Falls drivers is almost irrefutable evidence that Thomas had not informed her in advance of this meeting. 5 Nina's fuller account of her conversation with Schultz and Rex was not denied or contradicted by either of the latter witnesses . We therefore credit it. PETROLEUM CARRIERS, INC. 49,9 Rex and Schultz that she would quit if the Union came in. The two drivers asked her why. Nina replied that a union would mean a con- siderable increase in paper work and. that she already had all the -%N ork she could handle. Both drivers tried. to convince her that a union would not mean any more work and urged her to remain on the job. Obviously in trying to persuade Nina. to continue at work, Schultz and Rex did not understand Nina's expression about quitting to reflect a "deep seated antipathy towards the Union." A more ,reasonable interpretation of her statement is that she was expressing her hostility not to the Union, but to more work. Certainly Schultz and Rex so interpreted it; otherwise they would hardly have urged her to continue on the job. It is also significant that Nina's statement about quitting is the only evidence brought forward by the General Counsel to show her alleged deep seated hostility to the Union. Accordingly, we reject this finding of the Trial Examiner. The Trial Examiner has also misinterpreted Nina's explanation for the discharge of Rex and was thereby led astray in making his pretext finding. She testified that she discharged Rex not because he was late, as found by *the Trial Examiner, but because he failed to explain or apologize for that lateness. Both Rex and driver Larson corroborated Nina's testimony that when Rex reported late for work on August 15, he made n(rexplanation for his tardiness, but simply asked for his trip order. When Nina refused to give him the order but gave it to Larson instead, Rex got up and left. Quite clearly, Rex did not attempt to explain why he had been late, nor did he ask Nina why she did not give him the order. He made no apology, and did not attempt to conciliate Nina, who was upset by his pro- longed absence which had caused her to remain in the office past her usual working hours. Similarly, in his telephone conversation with `Nina that evening, Rex did nothing to smooth the troubled waters, as is apparent from his own testimony, but was insolent and threatened "to show" her. Accordingly, we find that Nina discharged Rex be- cause he had failed to explain or apologize for his tardiness. We further find that this was the real reason for the discharge and not a pretext. For all the foregoing reasons, we find, contrary to the Trial Exam- iner, that the Respondent did not discharge Dale Rex in violation of Section 8 (a) (3) and, (1) of the Act. We shall therefore dismiss the complaint. [The Board dismissed the complaint.] MEMBER MURDOCK, dissenting : I dissent from the finding of the majority that the Respondent did not discharge Dale Rex in violation of Section 8 (a) (3) and (1) of the Act. 334811-55-vol 109 33 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD My colleagues do not dispute the facts, as indeed they cannot, that Rex was the instigator and chief protagonist of the Union among the Respondent's employees, and that the Respondent was well aware of the resulting union activity among its employees prior to Rex's discharge. They assert, however, that the General Counsel has failed to prove that the Respondent was aware of the union role played by Rex, and that this was the reason why the Respondent discharged Rex. I disagree. Before entering the Respondent's service, Rex had been employed for about 2 years in a similar capacity as a truckdriver by an oper- ator of a similar transportation business servicing the same general area as the Respondent, and he had been a member of the union during such employment. After he entered the Respondent's em- ploy, he was the instigator and chief protagonist of the union in a company which employed only 7 truckdrivers at Watertown, his place of work, and only 14 truckdrivers at Sioux Falls, the main terminal. Moreover, on August 14, 1953, the day before Rex's dis- charge, Rex and another employee requested permission from the Respondent to attend a "union meeting" on the following day. Con- sidering all of these circumstances, and particularly the small size of the Respondent's business which has been held alone sufficient to support an inference of an employer's knowledge of its employees' union activity,6 I think it is reasonable to infer that the Respondent was aware of Rex's union activity prior to his discharge. I also believe that a reasonable inference can be drawn from the evidence that Rex's union activity was the reason for his discharge. Prior to Rex's discharge, Thomas, the Respondent's vice president and general manager who was in charge at Sioux Falls, stated to a deputation of Sioux Falls employees that he thought the Respondent's operations were "kind of small" for a union, and also approved the employee's sugestion that they have a "committee" to represent them instead of the Union, adding thereto his own suggestion that they have a meeting of all the Respondent's employees to organize the "committee." Nina, the supervisor in charge of the Watertown op- erations who discharged Rex, stated on the day before her discharge of Rex, that she would quit if the Union came in. Thus, it is clear that both Nina and her superior were opposed to the Union. Nina's hostility to the Union may have stemmed from her opposition to the increased work which she anticipated if the Union came in, as as- serted by my colleagues, but, as I see it , the reasons for her hostility towards the Union are quite immaterial; material only is the fact that she was opposed to the Union, and would thereby have a motive B See e g. Kallaher and Mee, Inc., 87 NLRB 410; Quest-Shon Mark Brassiere Co, 80 NLRB 1149, enforced 185 F. 2d 285 (C A. 2), petition for cert. denied 342 U S 812; N. L. R. B. v. Abbott Worsted Mills, Inc, 127 F 2d 438 , 440 (C. A. 1). PETROLEUM CARRIERS, INC. 501 for discharging the union leader in the plant because of his efforts to bring the Union in. That this was the motive for the discharge is shown by the following : (1) Rex was discharged on the same day that he spoke in favor of the Union and in opposition to the "com- rzittee," at the meeting which the Respondent had suggested to or- ganize the "committee" in place of the Union; (2) at the time of his discharge, Nina told Rex that the reason for his discharge was that he was late for work, and when Rex protested and pointed out to her that Schultz, another driver, was also late, she replied that Schultz' tardiness didn't "make any difference"; (3) Nina testified that it was not uncommon for the drivers to report late for work due to un- certain truck schedules, and that the customary discipline for such conduct was only to assign such drivers to short runs, which resulted in less pay; (4) Nina testified that she had never discharged any employee for being late except Rex; (5) although Nina claimed that the order to be delivered for which Rex was late was a "rush" order, and in effect that this made his offense a serious one calling for dis- charge, she admitted that she did not tell Larson, the driver to whom she subsequently assigned the order, that it was "rush"; (6) more- over, Larson, after being assigned to the order, went up town with his wife and did not return for half an hour before delivering the order, and was not criticized or disciplined by Nina for doing so; (7) in addition, Larson and several other witnesses testified that they had examined the order, and that it was not marked "rush" as was the custom in such cases ; and (8) Nina admitted that Rex's record as an employee prior to his discharge was good. In view of the fore- going, I am convinced, as the Trial Examiner was, that the Respond- ent's contention that Rex was discharged for cause, 1. e., because he was late for work and insubordinate, was mere pretext, and that the true motive for his discharge was because he was the motivating force behind the Union's organizational efforts and its leading pro- tagonist among the employees. Accordingly, I would affirm the Trial Examiner's finding that Rex was discriminatorily discharged, and order Rex to be reinstated with back pay. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge duly filed September 15, 1953, by Local 749, General Drivers, Warehousemen and Helpers Union, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., herein called the Union, the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board, issued his complaint on Novem- ber 14, 1953, against Petroleum Carriers, Inc., Sioux Falls, South Dakota, herein called the Respondent, alleging violations of Sections 8 (a) (1) and (3) and 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charge and of the complaint, together with notice of hearing thereon, were duly served upon the Respondent and the Union. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the unfair labor practices, the complaint alleged in substance that the Respondent (1) discharged its employee Dale Rex on or about August 15, 1953, and has at all times since failed and refused to reinstate said employee, for the reason that said employee joined and/or assisted the Union and has otherwise engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection, intending thereby to discourage membership in the Union and to interfere with the concerted activities of Respondent's employees; and (2) by such action and other acts and conduct, Respondent interfered with, restrained, and coerced its employees in the exercise by them of the rights guaranteed in Section 7 of the Act, and did thereby engage in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1).and Section 2 (6) and (7) of the Act. Respondent duly filed an answer to the complaint on or about December 11, 1953, in which it admitted certain jurisdictional matters, denied the commission of any of the alleged unfair labor practices, and affirmatively alleged in substance that Rex was discharged for good cause. Pursuant to notice, a hearing was held before the undersigned, the duly desig- nated Trial Examiner, at Watertown, South Dakota, on December 14, 1953. The General Counsel and the Respondent were represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was granted all parties. Though given an opportunity all parties waived oral argument and in addition indicated on the record that they did not desire to file either proposed findings of fact and conclusions of law based thereon or briefs with the undersigned. Consequently none have been received by the undersigned for his consideration. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The complaint alleges and the answer admits that the Respondent is a South Dakota corporation with its principal offices at Sioux • Falls, South Dakota, and a branch office and place of business at Watertown, South Dakota, at which locations it is engaged in the transportation of petroleum products as a common carrier licensed by the Interstate Commerce Commission an agent of the United States Government. In the course and conduct of its business it causes and has continu- ously caused at all times material herein large quantities of petroleum products to be purchased and transported in interstate commerce. The nature and quantity of its business operations is best described in a stipulation entered into by the parties at the onset of the hearing herein. For convenience it follows below: The Interstate Commerce Commission quarterly report for the nine months ended September, 30, 1953, report filed with the Bureau of Motor Carriers, Interstate Commerce Commission, reveals the following information: Respond- ent's interstate freight revenue was $349,975; it spent $55,134 for equipment maintenance, and $150,446 for equipment; its trucks and tractors operated over 1,381,437 miles carrying 114,072 tons of freight revenue. Respondent -further states that between November 1, 1952, and November 1, 1953, it purchased trucks, tractors, parts, tires, gas, and oil in the amount of $201,138, which equipment while purchased at Sioux Falls, South Dakota, and Watertown, South Dakota, originated outside of the State of South Dakota and was shipped into that State in interstate commerce. During this same period the company realized gross revenue of $455,581. Among the major customers of respondent are the Continental Oil Company, the Socony Vacuum Oil Company, the Texaco Oil Company, the Cities Service Company, Farmers Union Cooperative, Community Oil Cooperative, and W. H. Barber, distributors of Tydol gasolene. Further inspection of Interstate Commerce Commission records reveal that respondent owns I. C. C. Certificate of Public and Convenience No. MC108460 Sub 1, authority to carry petroleum products from Scottsbluff, Nebraska, Mc- Pherson and Phillipsburg, Kansas, and pipe line terminals at Council Bluffs, Iowa, and points and places within ten miles of Council Bluffs, Iowa, to Arling- ton, Britton, Colton, Columbia, Flandeau, Garretson, Hartford, Sisseton, Toronto, South Dakota and return. No. MC108460 Sub 4, to carry petroleum products from Council Bluffs and Rock Rapids, Iowa, and points and places in Iowa within ten miles of each of these cities to points and places in South PETROLEUM CARRIERS, INC. 503 Dakota on and east of U. S. Highway 218. No. MC-108460 Sub 5, authority to carry petroleum products from Council Bluffs, Iowa, to points and places within ten miles of Council Bluffs and points and places in South Dakota on and west of U. S. Highway 218 and east of South Dakota Highway 73, except points and places west of the Missouri River within one hundred miles of Greg- ory and return. Furthermore, respondent frequently utilizes the services of the Council Bluffs, Rock Rapids, Omaha, Watertown, and Sioux Falls terminals which terminals are operating stations on the Great Lakes Pipeline System which services the central States of the United States originating the fine petroleum products in the States of Texas and Oklahoma. Moreover the Board has heretofore assumed jurisdiction over the Respondent in Case No. 18-RC-2021. Upon the foregoing facts the undersigned finds that the Respondent, Petroleum Carriers, Inc., is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and the undersigned finds that Local 749, General Drivers, Warehousemen and Helpers Union, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES As indicated above we are primarily concerned with the alleged discriminatory discharge of Dale Rex on August 15, 1953, by the Respondent. By and large there is little dispute as regards the facts surrounding his discharge. As will be shown hereinafter the undersigned's ultimate disposition of the issue rests primarily upon his observation of the witnesses. Dale Rex was employed by the Respondent on or about April 6, 1953, as a truck- driver. He was hired by Roy Schmaling, truck terminal manager. At this time, and in fact at all times material herein , the Respondent's business operations were confined to two terminals, at Sioux Falls and Watertown, South Dakota. Its main offices were located in Sioux Falls, and under the direct supervision of Harvey Thomas, vice president and general manager. Its Watertown operations were under the direct supervision of Mrs. Nina Enevoldson' Under her direct supervision were all of the Watertown drivers and the terminal manager, Roy Schmaling. In addition to her managerial duties, she had full authority to hire and fire employees, and to assign them to their respective duties as truckdrivers. During the same pe- riod the Respondent had in its employ approximately 21 truckdrivers, 7 at Water- town and 14 at Sioux Falls. Before entering the Respondent's service, Rex had been employed for about 2 years as a truckdriver by Dan Duggan, an operator engaged in a similar transporta- tion business and servicing the same general area as the Respondent. While em- ployed by Duggan, Rex was a member of the Union. He quit driving for Duggan sometime in 1951, and engaged in farming near Watertown, South Dakota, until he was hired by the Respondent in April 1953. At all times material herein the Respondent operated its trucks on what it styled the "buddy" system. Under this system two drivers were assigned to a particular truck. In the case of Rex he was assigned to truck No. 15 and his buddy was Victor Zweig. Under the system Rex, for example, would take the truck out at say 12 noon and upon his return from a trip, he would gas it up and place it in readiness for Zweig to take out on another run. Zweig upon his return would do likewise. The drivers were paid by the mile, and loading and unloading time at the terminals. It was the custom for Nina to make out the delivery orders and place them in boxes in the terminal each of which bore the legend of the. truck that was to make the delivery such as truck No. 15, etc. It was the duty of each driver to check his box and make his deliveries in accordance with the instructions contained on the delivery orders. While Rex was employed at Duggan's he was a member of the Union. Shortly after he entered the Respondent's service he discussed the Union with several of the drivers, but no positive action was taken in this regard until sometime, in the latter part of July or the first week of August 1953. On July 27 Rex contacted Max i The undersigned refers to Mrs Enevoldson herein as Nina, primarily because all of the witnesses at the hearing referred to her as such in their testimony. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Crowell, local representative of the Union, and arranged to meet with him the next day to discuss the organization of the Respondent's Watertown drivers. Rex, accom- panied by Melvin Larson, one of the drivers, met with Crowell as scheduled and it was decided that it would be better to discuss the matter with all of the Respond- ent's drivers. Accordingly, Rex and Larson contacted them and a meeting with Crowell was held Sunday afternoon, August 2, 1953, at which all of the drivers, except one, Jarman, were present. At the meeting all of those present signed mem- bership cards and paid their initiation fees. It was also agreed by those present that the Respondent's drivers at Sioux Falls should be contacted and urged to join the Union. Thereafter Crowell called Greg Helvig, the Union's representative at Sioux Falls, and asked him to arrange a meeting between the Watertown and Sioux Falls drivers. Thereafter the Watertown drivers met with the Sioux Falls drivers on Sunday, August 9, 1953, in Sioux Falls. Rex was present at this meeting. Sev- eral of the Respondent's drivers at Sioux Falls attended the meeting and signed ap- plication for membership cards. Among those from Sioux Falls who attended the meeting was one Duane Schuldt, of whom more anon below. On the following day, Monday, August 10, 1953, several of the Respondent's Sioux Falls drivers met at the Texas Company's loading platform in Sioux Falls in the course of their employment. According to the credible testimony of Duane Schuldt the following occurred at that time. Present at the Texaco terminal at this time in addition to Duane Schuldt were Hubert Crandall, Lowell George, and Burdette Sargent. All but Crandall had at- tended the union meeting the day before and signed cards. In the course of the conversation that ensued amongst the drivers, several stated in substance that they, after thinking the matter over, had reached the conclusion that perhaps they had made a mistake in joining the Union. They based their opinion on the premise that the benefits that they then enjoyed with the Respondent were better than those then enjoyed by the Duggan drivers who were represented by the Union. In the course of the discussions Schuldt asked Crandall what he had to suggest, Crandall then suggested to those present that they organize a committee and get things "down" and "give it to management." The upshot of the discussion was that 1 or 2 of the older drivers would go to the office and discuss the situation with Harvey Thomas, the gen- eral manager. Shortly thereafter Schuldt and Sargent went to Thomas' office and informed him that they and five other Sioux Falls drivers had joined the Union the day before, August 9, 1953. Thomas told them in substance that their action in this regard was all right and that unions were good for employees, but that he thought that the Respondent's operations there "kind of small." Schuldt and Sargent then told him of their decision to organize a "committee" amongst the employees and to then submit to the Respondent a written memorandum containing their ideas on the subject, with the object in view of later sitting down and discussing the whole situa- tion with management. Thomas approved their suggestion. Schuldt and Sargent then told him of the union activities amongst the Watertown drivers. Since what happened thereafter is of extreme importance in the undersigned 's ultimate disposal of the issues herein he feels that Schuldt's testimony in this regard should be inserted herein. It follows below: Q. (Interrupting) Did you suggest the meeting with the Watertown drivers to Mr. Thomas or did Mr. Thomas suggest the meeting with the Watertown drivers to you? A. Well, more or less I guess it was for us to organize a committee here and have Watertown do the same. Q. That was his suggestion to you? A. Yes, sir. Q. What did you do to follow out the suggestion? A. Well, we said that we-We asked if-Well, can me and Sargent, he was there too, and we was two of the older men. And Johnny wasn't there at the time. And he said, "Get two or three men from Sioux Falls and the same from Watertown and call yourself a meeting," he said, "and discuss this stuff." Q. Did he suggest who should be got from Watertown? A. He sugegsted one, Schultz, but we had him in mind anyway. And we said that we would like Zwieg or Bob and Roger. Trial Examiner SHAW: Get the last names. Q. (By Mr. SEIDMAN) Is that Bransurd and Meseberg? A. Yes, sir. They was next in line I guess, third or fourth, I don't know which. Q. What did you do about contacting these people? PETROLEUM CARRIERS,, INC. 505 A. Well, we went to-Sargent said, "We'll call Watertown." And Sarg says, "We can pay for the call." And Harvey thought it would be all right. And I says, "Let's go over to my place, and then we can talk the way we want to and that way nobody can hear us." Q. And who did you call in Watertown? A. Petroleum Carriers, Inc: and we wanted to get ahold of Norman Schultz, but at the time he was out. [Emphasis supplied.] The above excerpt from Schuldt's testimony stands uncontradicted and undenied in the record and is fully credited by the undersigned. As the undersigned sees it the Sioux Falls drivers desired to discuss the formation of the "committee" with those drivers at Watertown who had seniority, such as Norman Schultz, Victor Zweig, Roger Meseberg, and Bob Bransurd. Rex being junior to these employees was not considered by them as a prospective representative of the Watertown drivers at-the time they had their conversation with Thomas. After meeting with Thomas, Schuldt accompanied by Sargent, went home and called Norman Schultz at the Respondent's terminal in Watertown. Schultz was not at the terminal at -the time and he left his telephone number with instructions for him to call back when he returned to the terminal. Schultz did so about 4 p. in. Here again the undersigned is convinced that what transpired in the telephone con- versation between Schultz of Watertown and Schuldt of Sioux Falls is best told in the language of the witness Schuldt, particularly since it stands uncontradicted and undenied in the record and is an important factor in the undersigned's ultimate disposal of the issues herein. Again it was in this conversation that Rex's role as the leading protagonist for the Union was set forth in the record in clear and concise language. The importance of this testimony will become apparent hereinafter in the undersigned's disposal of the issue as regards the General Counsel's theory that Schuldt and Sargent came to Watertown on August 15, 1953, for the meeting with the Watertown drivers as the Respondent's agents, and what transpired as a result of their visit and in particular their conversation with Nina Enevoldson on that morning establishes a motive for the Respondent's discharge of Rex. For these reasons Schuldt's testimony in this regard follows below: Q. Will you tell us the conversation you had with him? A. He called back, I think it was after 4 o'clock. And he asked me what the deal was and I told him that we more or less just dumped everything in Harvey's lap and told him about the union and everything. And Schultz asked me how he took it and I said, "Swell, he seemed to go for it all right, but he made the suggestion that we organize a committee on both ends and get some- thing down in black and white and try it without the union." And Schultz, he seemed to think that was a pretty good idea. So I asked them first if he could get ahold of Zweig or Bob or any of the older men. Q. By them, do you mean Rex was also speaking? A. Not at the time he wasn't speaking. Q. Tell us about Schultz. A. Meantime Rex must have come in or have been there and he asked to talk to me and he asked me what the deal was. And I told him and he said, "Leave it alone. Let the union take care of it," he says, "They'll take care of it." I guess Schultz got back on the phone and I asked him if he could get ahold of these men Zweig or Bob or Roger and come to Sioux Falls. Well, he didn't know about that. He said that he had to work. He had been working after- noons and thought maybe he would have to work. And he said, "If you want to talk to us, you better come up here to talk to us." Q. Was the meeting tentatively set up at any particular place? A. Not at the time. And I told him that we would be up there at 10 o'clock Saturday morning. Schultz says-I am not sure about that now-Schultz asked me, he says, "Well, will we be able to get off?" And I said, "I imagine. I don't know for sure, but maybe there will be some arrangements made." And then I told him, I said, "We will be up there Saturday by 10 o'clock for sure." And then we hung up. [Emphasis supplied.] As indicated above the testimony of Schuldt stands uncontroverted and undenied in the record and is fully credited by the undersigned. Norman Schultz and Rex's version of the conversation was essentially the same as that of Duane Schuldt (which has been set forth above), except as to one important detail and that was to the effect that Norman Schultz told Duane Schuldt in the conversation that he wanted Rex to attend the meeting between the Watertown and Sioux Falls drivers. Rex was present when the above conversation took place and as indicated took part in it. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A few days later Norman Schultz and Rex approached Mrs. Nina Enevoldson, the dispatcher and as indicated above in complete charge of the Respondent's Watertown operations , about securing time off to attend the meeting with the Sioux Falls drivers . At the time Mrs. Nina Enevoldson was seated in her car preparatory to leaving the terminal. Rex's version of what was said in the conversation is set forth below because the undersigned is convinced that the incident is best told in his own words. Q. Well- A. (Interrupting ) I and Norman Schultz asked Nina- Q. (Interrupting ) Who is Nina? A. Nina Enevoldson. Q. When you say "Nina," you mean the dispatcher? A. Yes. The day before we told her we was supposed to be off. She says , "I don't know anything about it. Harvey hasn't told me nothing about it." We told her what it was for, that it was a union meeting and she said , "You don't need to think I am blind." She said , "I can see them buttons on your cap. I have known about it for a week." She says, "If the union comes in, I'll quit. IT not work under the union." Mr. MAY: When did this conversation take place? Trial Examiner SHAW: Get the date. Q. (By Mr. SEIDMAN ) The date of the conversation? A. 14th of August 1953. Trial Examiner SHAW: All right. Proceed. The WITNESS: She said, "I would like to know who started this union trouble. I am not giving any permission to anybody to have a day off." We told her we wouldn't need only a couple of hours off, that we would work in the afternoon. She said, "That doesn',t make any difference. I am not giving anybody any permission." [Emphasis supplied.] Rex's version of what transpired and was said in the above discussed conversation stands uncontradicted and undenied in the record and is fully credited by the undersigned. On Saturday, August 15, 1953, Duane Schuldt, Harold Johnson , and Burdette Sargent drove up to Watertown from Sioux Falls in Sargent's car. They arrived at the terminal at about 9:45 a. in. Upon their arrival they went into the office and asked Nina where they could find Norman Schultz. She told them that he was at his home. They then asked her where they could find Bob Bransurd and Roger Meseberg. Nina advised that they were out on a run and were not expected back to the terminal until around noon. They then left the terminal and drove out to Schultz's home. At the onset of their meeting with Schultz they informed him that they desired to discuss with him the pending union situation . Schultz then said, "Don't talk to me, wait until the rest of the guys come ." At about this time Rex drove up and asked them "what the deal was." They told him about the idea of organizing a "committee" to deal with the Respondent instead of dealing through the Union. Rex was opposed to the idea, and it was then decided that they would all meet again at the terminal in about a half an hour . The Sioux Falls drivers then left and went to the terminal to await Schultz's arrival. Upon their arrival at the terminal they discussed the proposed meeting with the Watertown drivers with Nina She told them that she had not been informed of the meeting and knew nothing whatever about the arrangements they had made with Harvey Thomas. She also told them that Bransurd and Meseberg could attend the meeting but that Norman Schultz was assigned to a trip and for that reason she could not and would not give him time off to attend the meeting. They then argued with her and assured her that they would assume full responsibility for getting Schultz off. Schuldt personally told her that they would not assume the responsi- bility for anybody else, but that as far as they were concerned other Watertown drivers could attend if they so desired . In furtherance of their efforts to impress Nina that Harvey Thomas had given them permission to meet with the Watertown drivers, and to select those that they desired to discuss the situation with , Harold Johnson, called Thomas in Sioux Falls from the terminal , but was unable to "get ahold" of him. Nina eventually capitulated to their entreaties and reluctantly granted permission for Norman Schultz to attend the meeting. At this point the undersigned is convinced that the General Counsel's contention that Duane Schuldt , Burdette Sargent, and Harold Johnson , all Sioux Falls drivers, came to Watertown as the agents of the Respondent for the purpose of persuading the drivers there to reject the Union and to join with them in the organization of a PETROLEUM CARRIERS, INC. 507 "committee" composed of all of the Respondent's drivers at both Watertown and Sioux Falls for the purpose of dealing directly with the Respondent as regards wages, hours, and other conditions of employment, is correct, and he so finds. To begin with the undersigned desires to point out that there is no allegation in the complaint that the Respondent engaged in a course of conduct violative of Sec- tion 8 (a) (2) of the Act. Nor did the General Counsel make such a contention at the hearing herein. The sole purpose of his contention in this regard as the undersigned sees it was to buttress his contention that Rex was discriminatorily discharged because of his union activities, concerning which more anon. The undersigned finds merit in his contention in this regard for the following reasons: While it is quite true that there is no substantial evidence in the record that the Respondent either directly or indirectly suggested the formation of a "committee," nevertheless the uncontradicted, undenied, and credible evidence when considered on the record as a whole clearly shows that Harvey Thomas, the Respondent's gen- eral manager, accepted the idea when it was first presented to him by Schuldt and Sargent, and did in fact authorize these two employees to proceed with the organiza- tion of the committee, and to designate and select those employees they deemed necessary and desirable to accomplish its organization, both at Sioux Falls and Watertown. In such circumstances the undersigned is convinced, and indeed upon this record, compelled to find that Schuldt, Sargent and Johnson came to Watertown as the agents of the Respondent for the purpose of organizing the proposed "com- mittee." There are certain other factors that have also persuaded the undersigned to find as above: (1) Nina's statement to Schultz and Rex in substance that she would like to find out who "started this," meaning the union organization; 2 (2) the fact that on August 12, 1953, the Union filed a petition for certification for representatives with the Regional Director of the Eighteenth Region in Minneapolis, a copy of which would have been received by the Respondent in the normal course of business at least by Friday, August 14, 1953; (3) Nina's admission to Schultz and Rex that she was well aware of the union activities of the Watertown drivers when she talked to them on or about August 14, 1953, and (4) Nina's reluctant acceptance of the fact that Schuldt, Sargent, and Johnson spoke as the agents of Harvey Thomas (meaning the Respondent herein) when they requested time off for Schultz on the morning of August 15, 1953. Reluctant though her acceptance may have been, nevertheless the fact remains that she did in fact accept their representations that Thomas had pre- viously approved their action in this regard and had authorized them to select the employees they desired for the stated purpose of organizing a committee. In view of all of these circumstances the undersigned has made the above finding, and accepts the General Counsel's theory in the regard. Having so found let us now proceed with a resume of the events that followed after Nina authorized Schultz to attend the meeting on August 15, 1953. While the Sioux Falls drivers were engaged in their discussion with Nina, Schultz and Rex drove up to the terminal. Rex came up to the group and suggested that they go up to the 212 Club and finish their business. Duane Schuldt said, "there is not much sense in going up there. The guys we want to talk to ain't here," whom the undersigned finds to have been Meseberg and Bransurd, since these were two of the employees mentioned to Thomas at the time they suggested the formation of the committee, and to Nina when they first arrived at the Watertown terminal that morning. Rex assured them that the employees they had reference to would be along later, and at that they proceeded to the 212 Club. Upon their arrival at the club they found Larson, a Watertown driver, already there. After a few preliminaries at the bar, all at the suggestion of Rex proceeded to a back room to discuss the situation. From what the undersigned gleans from the record the following drivers were present when the discussion started: Schultz, Rex, and Larson from Watertown and Schuldt, Sargent, and Jackson from Sioux Falls. Schultz, after the meeting got under way, left to go to the terminal for the purpose of picking up his "buddy" Roger Meseberg, and bring him to the meeting. At around 11:45 a. in. Rex called Schultz at the terminal. Nina answered the phone. After she had called Schultz to the phone, she said to Rex "you are supposed to go to work," and asked him where he was at. He told her he was at the 212 Club, and he then asked her if his truck was in yet and where he was supposed to go. She told him that his truck had not yet arrived at the terminal, and that he was to make a trip to Claremont. Rex called Schultz again at around 12:30 p. m. and asked him if 9 The portent of Nina's remark will be apparent hereinafter in that section of the report dealing with Rex's discharge. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meseberg was in yet, and that if he was when they expected to get out to the meet- ing. Schultz told him that Meseberg had arrived and that they would come out just as soon as he finished greasing the truck . Rex also asked Schultz if his truck was in yet, and was advised that it had not yet arrived at the terminal . Schultz and Mese- berg finally got out to the meeting at around 1 p. m. From what the undersigned gleans from the record the following were present at the meeting at the 212 Club: from Watertown, Dale Rex, Norman Schultz, Ken- neth Bellman , Melvin Larson , and Roger Meseberg, from Sioux Falls, Burdette Sargent, Harold Johnson , and Duane Schuldt . During the course of the meeting Max Crowell, representative for the Union in Watertown, and 2 or 3 other persons, not employees of the Respondent , dropped in and to some extent participated in the discussions. Sargent acted as spokesman for the Sioux Falls drivers . He opened the meeting by pointing out that insofar as the Sioux Falls drivers were concerned the Union offered them nothing that they were not then receiving from the Respondent, and that as a matter of fact their working conditions with the Respondent were better than those enjoyed by the Duggan drivers who were unionized. He also told those present that as far as the Sioux Falls drivers were concerned they did not need a union and did not want a union . Rex and Larson took exception to his statements. Larson in particular pointed out where the employees would better themselves under a union contract. Rex argued for the Union and insisted that the best thing for them to do was to unionize and let the Union handle their affairs with the Re- spondent. In the course of the discussions which apparently became rather "heated," Sargent said to Rex, "you are a union man. I can tell that . Harvey Thomas would like to find the guy that started this." At about this time, Max Crowell, the Union's representative who had been sitting outside in the club, entered the room and in- jected himself into the discussion and pointed out to the employees the benefits the Union had to offer them. He also told the Sioux Falls drivers that if Harvey Thomas, the Respondent's general manager, had anything to do with arranging the meeting, ". . . it was a violation of the law." At this point Sargent turned to Duane Schuldt and said . no wonder he made you make that call from your house," which the record indicates and the undersigned finds to have been a reference to the call Duane Schuldt made to Norman Schultz in Watertown on Mon- day, August 10, 1953, as regards this meeting between the Sioux Falls and Water- town drivers. After arguing back and forth about an hour the meeting broke up at around 2:15 p. m. Rex accompanied by Larson left immediately for the terminal where they arrived at about 2:20 p. m. Norman Schultz and Roger Meseberg ar- rived shortly after they did. Upon arrival at the terminal Rex asked Nina for his order which was in his box. She reached over, took it out of the box, put it in the typewriter, and made it over to Larson. Rex again asked her for his order and she told him "you don't get any order." Rex then left the terminal and went home. Later that evening at about 7 p. m. he returned to the terminal to see whether or not he had an order for Sunday night, since it was the custom for the drivers to be assigned their orders for Sunday on Saturday, Sunday being Nina's day off. Finding no order in his box he called Nina and asked her where his order was; she told him, "you don't get any more orders. You was late for work today." Rex protested and pointed out to her that Schultz was also late to work that day, to which she replied, ". . . That doesn't make any difference whether he was late or not. . when I ain't boss down here, something is wrong." Rex asked her if she meant that he was fired and she replied, "Yes, you are fired. Harvey can hire you back Monday morning if he wants to." Shortly after Rex was discharged Nina wrote Harvey Thomas a letter in which she set forth her reasons for discharging Rex. On Monday, August 17, 1953, Helvig, the Union's representative in Sioux Falls, called upon Thomas at his office and in- formed him of Rex's discharge. Thomas told him that he knew nothing about it. The Respondent's position is that Rex was discharged for good cause. In support of its position in this regard it relied upon the testimony of Mrs. Nina Enevoldson, its dispatcher at Watertown, who made the discharge and as indicated above as- sumed full responsibility for the incident. The record clearly shows, in fact Re- spondent's general manager, Harvey Thomas, admitted that Nina had full authority to hire and fire, and was considered a "responsible employee of the Company." Nina's testimony as regards the events leading up to Rex's discharge was, in sub- stance, as follows: It was her job to take the orders from customers as they came into the office and assign the deliveries to the respective truckdrivers. It was the custom to keep the trucks rolling without unnecessary delay by use of what has been described above as the "buddy" system. The drivers were kept informed of their assigned deliveries by either telephone or by written orders placed in boxes assigned PETROLEUM CARRIERS, INC. 509 each numbered truck in the office. When a truck came off a run it was immediately serviced by the incoming driver and made ready for the driver's "buddy" so that he could leave the terminal without delay and deliver the orders assigned him, Due to the fact that the arrival of the trucks back to the terminal could not be timed accurately, on account of unforeseen difficulties either at the point of deliv- ery or on account of highway conditions, it was the custom for Nina to call the drivers and notify them that their trucks were at the terminal and to tell them where they were to go. On occasion the Respondent would receive rush orders from customers, particularly when an increase in the price of petroleum products was anticipated. On such occasions it was the policy of the Respondent, and Nina in particular, to either notify the driver personally or by phone or to mark "RUSH" on his delivery order. She testified that it was not uncommon for the drivers to report late for work at the terminal. She qualified her testimony in this regard by pointing out that due to the very nature of Respondent's business delays on the road and at customers' terminals were to be expected and that the Respondent had no set policy, but con- sidered each case on its merits. She did point out however that in cases where she was convinced that lateness was due to the driver's own carelessness and the like, she ordinarily corrected the situation by assigning such drivers to short runs, which would mean less take-home pay, since they were paid on a mileage basis. From experience she had found that such disciplinary action was enough to correct the situation. Nina's account of the events leading up to the discharge was as follows: On Saturday morning sometime between 9 a. in. and 10 a. in . she received a rush order for petroleum products from the Farmers Union Central Exchange, to be delivered at its bulk plant in Claremont, South Dakota. Claremont is about 105 miles from Watertown. She promised to rush the order and have it on its way that afternoon. Since Nina's testimony as regards Rex's discharge is of the utmost importance in the undersigned's ultimate disposal of the issues herein , he is of the opinion that it should be set forth herein in considerable detail, particularly because he feels that there are certain important discrepancies therein that require and indeed compel a close scrutiny and careful analysis in fairness to all concerned. On direct examination she testified that Rex was at the terminal at approximately 11 or 11:30 a. in. At that time she did not speak to him about the "Rush" order to Claremont, because she expected him to be ready to go to work when Zweig, his buddy, arrived in truck No. 15 from Aberdeen. Before Rex came in she had made up the order to Claremont and placed it in truck No. 15's box. Shortly thereafter she went to lunch. Upon her return at about "ten minutes to 1" she saw that Zweig had returned from Aberdeen with truck No. 15. She then called Rex's home and told his wife that he was to take an order to Claremont. At about 1 p. in. Rex called Norman Schultz, and while Schultz was en route to the phone, she said to Rex, "Rex is that you?" and he said yes, and I said, "Your truck is in and there is a rush order for Claremont,"' and that Rex then advised her that he would be "down" to the terminal. At about 2:40 p. in. Rex, and the other employees who had attended the meeting at the 212 Club, arrived at the terminal. It was at this time that she made up her mind to discharge Rex, primarily because he was (1) late to work and (2) because he had not requested permission to attend the meeting. Shortly thereafter she turned the Claremont order over to Larson to deliver. Her testimony as to what then transpired is essentially the same as that of Rex which has been set forth above, and will not be reiterated. There are serious discrepancies between her testimony on direct and cross-exam- ination as regards her knowledge of the prearranged meeting between the Sioux Falls and the Watertown drivers. When first queried by counsel as regards her knowledge of the proposed meeting she testified in substance that sometime around 9 or 9:30 a. in. on Saturday morning Sargent, Johnson, and Duane Schuldt from Sioux Falls arrived at the terminal. She was advised of their arrival by Roy Schmaling, the shop foreman. Her testimony in this regard is also of extreme importance, pri- marily because it goes right to the heart of the undersigned's appraisal of her cred- ibility as a witness. For this reason this pertinent excerpt from her testimony is inserted herein below: Q. All right. What did they have on their minds when they called on you? A. I didn't see them drive up. . The shop manager came and said, "The. Sioux Falls' guys are here." We had heard rumors that the meeting was to be at Sioux Falls. 3 Quoted portion from Tina's testimony on direct examination. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. These fellows came up, and you say the shop foreman-Who is the shop foreman? A. Roy Schmaling. Q. What did Roy tell you? A. He saw them drive up and he said, "The Sioux Falls' guys are up here." And I thought maybe their meeting had gone to pot. I thought, maybe they aren't going to have one. Q. Then these boys, did they come in your office? A. They came in. Q. What did they tell you about it? A. They said that they were supposed to have a meeting up here today- No, I asked them first, what are you guys doing here. They said, "We are supposed to have a meeting up here today. They said, "Didn't you know about it?" And I said, "No." As far as knowing anything definite about a meeting, I thought I should be notified by someone. [Emphasis supplied.] The Sioux Falls drivers came into the office and asked for "Schultz." She told them he had to work that afternoon. She then made the following voluntary state- ment in her testimony: "He was the oldest employee we had." In answer to their query as regards the next oldest employees, Bransurd and Meseberg, she told them that they were hired at about the same time. She then told them that Bransurd and Meseberg should arrive at about noon and the Zweig, Rex's "buddy" should arrive at about the same time. She further testified in substance that she was somewhat piqued at the Sioux Falls drivers, because she had not been "notified" of the meeting. As indicated above she finally acquiesced to their request that Schultz be given time off to attend the meeting, particularly after they assured her that they had been given permission by Harvey Thomas to attend the meeting. Later on in her testimony and on direct examination she emphatically denied that she had been notified or that she had received any information that there was to be a meeting between the Sioux Falls and Watertown drivers on Saturday, August 15, 1953. In particular, there appears in her direct examination the following: Q. You absolutely knew nothing about any meeting of any kind that involved Dale Rex prior to his not showing up? A. No. Nina's testimony on cross-examination as regards Rex's discharge, is as indicated above, at odds with her testimony on direct as will be shown in considerable detail below. She admitted on cross-examination that she knew that Rex had been to the meeting at the 212 Club. Her testimony at the onset of her cross-examination as regards her knowledge of the proposed meeting is important. For example the following excerpt from the official transcript of the record indicates to the undersigned that she had at least some intimation that there was to be a meeting about the "Union": Q. You must have known that there was going to be a meeting at the Two-Twelve Club that day? A. 1 didn't expect any meeting, at the Two-Twelve Club. I was under the supposition that the union meeting would be held in the union hall. I thought they had gone to the Two-Twelve Club for refreshments. [Emphasis supplied.] In the considered opinion of the undersigned the above excerpt from her testimony when considered in the light of her testimony on direct examination ' as regards the events surrounding the arrival of the Sioux Falls drivers at the terminal, belie her emphatic denials that she had any information whatsoever that a meeting between the Sioux Falls and Watertown drivers was contemplated for Saturday, August 15, 1953. Otherwise how could she have been "under the supposition that the union meeting would be held in the union hall ," especially when considered in the light of the testimony of the Sioux Falls drivers, Schuldt and Johnson, who testi- fied without contradiction that they came to Watertown as the representatives of Thomas, who had given them permission to choose any Watertown driver they desired to attend a meeting, whose primary purpose was to organize a committee in opposition to the Union? Nina's testimony on cross-examination as regards the events on Saturday, August 15, 1953, leading up to Rex's discharge was in substance as follows: She saw Rex at the terminal at around 11 a. in. but did not say anything to him about the rush order to Claremont. At 11:45 a. m. she called his home and told A See excerpt from her testimony, supra. PETROLEUM CARRIERS, INC. 511 his wife to tell him that he had a trip to Claremont.' At about 12 :05 p. m. she went to lunch and arrived back at the office at about 12 : 45; at 1 she talked to Rex when he called Schultz and told him that he had a rush order to' Claremont; that Zweig had returned from his trip to Aberdeen and that his truck , No. 15 , was now in the terminal. In the final analysis Nina's reasons for discharging Rex were that he was late to work and insubordinate in that he did not ask her for permission to attend the meeting at the 212 Club, on Saturday , August 15, 1953. Nina admitted on cross-examination that she did not tell Larson at the time she assigned the Claremont order to him that it was a "KLJSH" order. Larson testified that after Nina assigned him to the Claremont trip that he went up town with his wife and that he did not return to the terminal until about a half an hour later. He further testified that he was neither criticized nor disciplined by Nina for these derelictions. Nina admitted on both direct and cross-examination that she had never discharged any employee for being late except Rex. She further testified that lateness on the part of the drivers was commonplace , but explained that she always felt that in such cases they had a legitimate excuse. Several of the witnesses, particularly Larson, testified that they had examined the order assigning truck No. 15 to the Claremont trip , and that it was not marked "RUSH" as was the custom in such cases. Concluding Findings To begin with the undersigned is convinced that before any intelligent disposition of the issues herein can be made that certain conflicts in the testimony of Rex, Schultz, and Nina should of necessity be resolved . Let us first dispose of the con- flict as regards the alleged "RUSH" order to Claremont. Rex testified that Nina did not tell him in her conversation at the time he called Schultz at around 11:45 a. m., while Nina, on the other hand testified that she did . She also testified that she told Rex at the time that truck No. 15 was at the terminal . The record does not support her testimony in this regard . In the first place the record shows by a preponderance of the evidence that the call in which Rex talked to Nina and Schultz was at 11 :45 a. m., and not at around 1 p. m. Furthermore the uncontra- dicted, undenied, and credible testimony of Zweig, Rex's "buddy," shows that he arrived at the terminal with truck No. 15 , at approximately 1 p. m. In such circum- stances the undersigned credits the testimony of Rex and Zweig that truck No. 15 arrived from Aberdeen at approximately 1 p. m., and discredits the testimony of Nina that she told Rex that truck No. 15 was at the terminal at the time she talked to him, primarily because the record shows that it was not there at the time she talked to Rex which as found above was at 11 :45 a. m . In so finding the under- signed of course credits Rex's testimony that Nina told him in the conversation that truck No . 15 was not at the terminal at the time. As indicated above one of the perplexing problems here is the resolution of the credibility of the witnesses , particularly that of Mrs . Nina Enevoldson. In the main she impressed the undersigned as an essentially honest person , but it was obvious from her demeanor while testifying that she had a deep -seated antipathy towards the Union, and that her attitude in this regard caused her to color her testimony somewhat as regards pertinent matters at issue. Her attitude is best illustrated in her testimony as regards her conversation with Rex and Schultz on Friday, August 14, 1953 , when they asked her for time off to attend a meeting the next day with the Sioux Falls drivers. For this reason the undersigned cannot accept her testi- mony that she was completely "in the dark," so to speak of the fact that Harvey Thomas, her superior, had authorized Schuldt and Sargent to act as the Respondent's agents tor the purpose of dis ussing the t cation of a "committee" with the Water- town drivers . Moreover it is inconceivable, in fact it is contrary to the realities of the situation to accept her testimony that Thomas did not discuss the unionization of the employees. or the pending • eetine between the Watertown o nd Sioux Falls drivers [which Thomas himself had only recently authorized ] when he visited Watertown on either the Thursday or Friday before the meeting on August 15, 1953 . Nor can the undersigned ignore the fact that a copy of the Union 's petition for certification of representatives filed with the Regional Director on August 12, 1953 , would in the normal course of business have come to the attention of the Respondent;; at least by Friday, August 14, 1953. For the same reasons the under-- 6 Yet , she later testified that she called his home at around 1 p. m. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed cannot accept Thomas' testimony that the Union was not mentioned when he visited Watertown on either August 13 or 14, 1953. Such testimony simply does not fit in with the undisputed facts in the record particularly in view of the open and notorious conduct of the employees at both Watertown and Sioux Falls, as evidenced by the wearing of union buttons, and admitted conversations between the Respondent's representatives and union and nonunion adherents as regards the Union during the week preceding the meeting on Saturday, August 15, 1953. In view of all of the foregoing the undersigned is convinced that the Respondent's contention that Rex was discharged for cause, that is because he was approximate- ly 1 hour and 20 minutes late to work and insubordinate, was mere pretext and that the true motive for its action in this regard was because Mrs. Nina Enevoldson, its dispatcher at Watertown, was convinced that he was the motivating force behind the Union's organizational efforts and its leading protagonist amongst the employees under her supervision. Many factors have entered into the undersigned' s findings in this regard and they are principally: (1) The evidence does not support Nina's con- tention that the order to Claremont was a "RUSH" order; (2) Nina's total disregard of Larson's neglect to proceed forthwith with his truck to make the Claremont delivery; (3) her testimony that she thought the "meeting" was to be held at the "Union Hall" in the face of the fact that nowhere in the record is there found any reference to a meeting at a "Union Hall," which convinces the undersigned that Nina associated Rex's request for time off to the Union, towards which she had an obvious- ly deep-seated antipathy; (4) her testimony that she let Schultz off to attend the meeting after she was convinced that Schuldt and Sargent spoke for Harvey Thomas, the Respondent's general manager; (5) the fact that no employee had ever been discharged in the past for being late to work and the disparate application of such a rule to Rex; (6) the discrepancies in her testimony as regards the timing of the tele- phone call from Rex and the arrival of Zweig with truck No. 15 at the terminal; (7) her admission that Rex's record as an employee was good and (8) the fact that the record fails to disclose a scintilla of evidence indicating that Rex was ever discourteous or had evidenced insubordination towards either Nina or any other supervisory employee of the Respondent prior to his discharge on August 15, 1953. The undersigned is not unmindful of the fact that there is no direct evidence in the record that Rex was. discharged because of his concerted and/or union activities (there seldom ever is in cases of this nature) and that his ultimate finding in this regard is by inference predicated upon certain facts found above. It has been well said that hard cases make bad law. So is it here, putting it mildly so to speak, the facts found here have concerned him no end in his effort to arrive at a just and honest decision. This is the sort of a case that has long disturbed the Board and the courts. Recently however the U. S. Supreme Court, in the case of Radio O.Otcers Union et al. v. N. L. R. B., N. L. R. B. v. Intl. Brotherhood of Teamsters, Chauffeurs, etc., Gaynor News Co., Inc. v. N. L. R. B., Nos. 5, 6, and 7, February 1, 1954,° had the following to say as regards a similar evidentiary problem: ,We considered .this, problem in the Republic Aviation case. To the conten- tion that "there must be evidence before the Board to show that the rules and orders of the employers interfered with and discouraged union organization in the circumstances and situation of each company," we replied that the statutory plan for an adversary proceeding "does not go beyond the necessity for the production of evidential facts, however, and compel evidence as to the results which may flow from such facts. . An administrative agency with power after hearings to determine on the evidence in adversary proceedings whether violations of statutory commands have occurred may infer within the limits of the inquiry from the proven facts such conclusions as reasonably may be based upon the facts proven. One of the purposes which lead to the creation of such boards is to have decisions based upon evidential facts under the particular statute made by^experienced officials with an adequate appreciation of the com- plexities of the subject which is entrusted to their administration. . . " 324 U. S., at 798, 800. See also N. L. R. B. v. Nevada Consolidated Copper Corp., 316 U. S. 105 [10 LRRM 6071; N. L. R. B. v. Link-Belt Co., 311 U. S. 584 [7 LRRM 297]. In these cases, we but restated a rule familiar to the law and followed by all fact-finding tribunals-that it is permissible to draw on experience in factual inquiries. [Emphasis supplied.] In the considered opinion of the undersigned the above finding of the Supreme ,Court is clearly apropos to the proposition that the undersigned may draw reasonable inferences from the facts found above. Consequently and in view of all the cir- 6 347 U. S. 17. PETROLEUM CARRIERS, INC. 513 cum.stances found above the undersigned finds that the Respondent discriminatorily discharged Dale Rex on August 15, 1953, because of his membership in and ac- tivities on behalf of the Union herein, and that by such conduct the Respondent violated Section 8 (a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent in section 1, above, have a close, intimate, and substantial relation to trade, traffic and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain un- fair labor practices, the undersigned will recommend that it cease and desist there- from and take the following affirmative action designed to effectuate the policies of the Act: (1) Offer to Dale Rex immediate and full reinstatement to his former or substantially equivalent position,' without prejudice to his seniority or other rights and privileges; (2) make the above-named employee whole for any loss of pay he may have suffered by reason of the Respondent's unlawful discharge, by payment to him of a sum of money equal to the amount he would normally have earned as wages, from the date of discharge to the date of the Respondent's offer of reinstate- ment, less the net earnings of each during said period;' (3) the Respondent shall upon request, make available to the Board payroll and other records to facilitate the checking of the amount of back pay, which shall be computed in accordance with the Board's customary formula;' and (4) that the Respondent be ordered to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by 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, Petroleum Carriers, Inc., Sioux Falls, South Dakota, is en- gaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Local 749, General Drivers, Warehousemen and Helpers Union, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., is a labor organization within the meaning of Section 2 (5) of, the Act. 3. By discharging Dale Rex, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By such conduct the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication. ] Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that WE WILL NOT interrogate employees concerning their union affiliations, ac- tivities, or sympathies. 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 or- 7The Chase Nattonal Bank of the Ctity of New York, San Juan, Puerto Rico Branch, 65 NLRB 827. 8 Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N. L. R. B , 311 U. S. 7. 9 F. W. Woolworth Co., 90 NLRB 289 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ganizations, to join or assist Local 749, General Drivers, Warehousemen and Helpers Union, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, A. F. of L., or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other 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 activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL offer Dale Rex immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed and we will make whole said employee for any loss of pay suffered as a result of the discrimination against him. All our employees are free to become, remain, or to refrain from becoming or remaining members of any labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Na- tional Labor Relations Act. PETROLEUM CARRIERS, 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. LA POINTE MACHINE TOOL COMPANY and AMERICAN FEDERATION OF TECHNICAL ENGINEERS , AFL, PETITIONER. Case No. 1-RC-3440. July 08, 1954 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before George A. Sweeney, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case , the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer.' 3. Since December 1944, the Intervenor has been in contractual rela- tions with the Employer as the representative of all the Employer's hourly rated employees , including the draftsmen now sought to be represented by the Petitioner 2 On July 1, 1952, the Intervenor en- tered into a collective -bargaining agreement with the Employer for a term expiring on December 31, 1953 . A clause in this agreement 'Local 3536, United Steelworkers of America, CIO, was permitted to intervene at the hearing. 2 As a result of a consent election, the Intervenor was designated the bargaining repre- sentative of the Employer's production and maintenance employees and draftsmen. Pur- suant to the July 1950 contract the office clerical employees were added to this unit. 109 NLRB No. 91.