Ryder Tank Lines, Inc.

936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing two groups of employees will constitute separate units appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: (a) All technical employees at the Employer's Philadelphia, Penn- sylvania, operation, including Manufacturing Engineers Pfluger and Bennet; standards engineers; standard data analysts; product de- signers; detail draftsmen ; layout draftsmen ; classifier engineer, draw- ing (Fox) ; tool designers; tool draftsmen, engineering changes; methods engineers; methods men; experimental mechanics; tool rec- ord analysts; and production planners; but excluding Forrest City employees, production and maintenance employees, office clerical em- ployees, all other employees, guards, and supervisors as defined in the Act. (b) All professional employees at the Employer's Philadelphia, Pennsylvania, operation, including project and design engineers, Manufacturing Engineer Brown, and Sales Engineer Howard, but excluding Forrest, City employees, production and maintenance em- ployees, office clerical employees, all other employees, guards, and supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] Ryder Tank Lines, Inc. and Quenton Reese, Gordon M. Treadwell, and Manard E. Bough. Cases Nos. 11-CA-1649-1-2-3. Febru- ary 8, 1962 DECISION AND ORDER On December 14, 1960, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair 11 - labor, practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter the General Counsel and the Respondent filed exceptions to the Intermediate Report with supporting briefs. 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 Leedom and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, 135 NLRB No. 95. RYDER TANK LINES, INC. 937 and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner with the following additions: I. We agree with the Trial Examiner that the Respondent violated Section 8 (a) (1) of the Act by threatening in May 1960, to discharge employees Reese and Treadwell because of their activities on behalf of a labor organization, and by discharging them the following month to discourage concerted activity. Reese and Treadwell were respectively the first and third oldest employees at the Fayetteville terminal in point of service. They were considerably more active than their fellow employees in the presenta- tion of grievances and in the discussion of various shortcomings in their relations with management. The record establishes that through one source or another, Morrison, the terminal manager, was informed of the complaints of Reese and Treadwell. and these complaints were relayed to top management at the Greensboro terminal. Respondent's operations manager, Kruggel, admitted that Reese and Treadwell were discharged because they were "argumentative and trying to usurp the morale of management; both men believed that they could run the terminal." Kruggel further stated that every time he dis- cussed the operations of the Fayetteville terminal with the terminal supervisors, the names of Reese and Treadwell were constantly being mentioned, that they were constantly claiming, "this person ought to be laid off, this person was running wrong, this operation was not running to their satisfaction." One such incident occurred in May 1960, when Reese, Treadwell, and other drivers were discussing the effect of a reduction in the work- load. Reese stated, "It looks like some of the junior drivers are going - to have to be laid off." Treadwell replied, "Yeah, we are not making enough money." Terminal Manager Morrison who was present at the time evinced his displeasure with the drivers' discussion by stating that he "would lay off who he damned please." This discussion about work- ing conditions and terms of employment was clearly a protected con- certed activity within the purview of the Act 2 Therefore when the Respondent discharged Reese and Treadwell in an attempt to discour- age activities of this type it violated Section 8 (a) (1) of the Act and we so find. II. Unlike the Trial Examiner, we find that the Respondent's dis- charge of Reese and Treadwell was also in part motivated by their previous activities on behalf of the Teamsters. As the Trial Examiner found, Morrison had told employee Bough that he had orders from 1 The Trial Examiner referred to Reese and Treadwell, under section III, B, of the Intermediate Report, as being assigned to out-of-State duties on the date of the election, when the reference should have been to Bough and Treadwell . This inadvertent error in no way impaired the validity of the Trial Examiner's findings. a Guernsey-Muskingum Electric Cooperative, Inc, 124 NLRB 618, enfd. 285 F. 2d 8 (C.A 6). 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Greensboro to fire anyone trying to organize a union or talking about one. In either April or May 1960, Reese and Treadwell made an abor- tive effort to organize the drivers into a union. And in May 1960, Morrison told one of the employees that he anticipated that there would be another election in July in which the employees would be given another opportunity to select the Teamsters as their collective- bargaining representative and that he would have to get rid of Reese and Treadwell prior to that time. This evidence clearly indicates `that the Respondent was further motivated, in part, by the union activities of Reese and Treadwell, and hence their discharge for this reason violated Section 8 (a) (3) and (1) of the Act. III. We agree with the Trial Examiner that the Respondent did not violate Section 8 (a) (1) of the Act in discharging employee Bough because he had appealed to higher management, "over the head" of Terminal Manager Morrison, about an alleged shortage in his pay for a particular trip. As the Trial Examiner noted, Bough's claim appears to have been purely personal and, in the circumstances of this case, his action in pressing it can hardly be viewed as "concerted" employee activity within the purview of Section 7 of the Acts Ac- cordingly, we do not reach here the questions of employer scienter which were involved in the Office Towel and Walls cases cited by the Trial Examiner .4 ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Ryder Tank Lines, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discharging, threatening to discharge, or by any other means discriminating against Quenton Reese, Gordon M. Treadwell, or any other employee, because of their activity on behalf of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or its Local 391, or any other labor organization. (b) Threatening or coercing employees because of their member- ship or interest in or activities on behalf of International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or its Local 391, or any other labor organization. (c) Interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act by discrim- inating in regard to their hire or tenure of employment or any term or condition of employment. See N L.R.B. v. Gibbs Corporation, 284 F. 2d 403, 406 (C.A. 5). * The Office Towel Supply Company, Incorporated, 97 NLRB 449, enforcement denied 201 F. 2d 838 (C.A. 2) ; and Walls Manufacturing Company, Inc., 128 NLRB 487. Compare Cusano d/b/a American Shuffleboard Co, et al v. N.L R.B., 190 F. 2d 898, 902-903 (C.A. 3), enfg. 92 NLRB 1272. RYDER TANK LINES, INC. 939 (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self organization, to form labor organizations, to join the above-named labor organiza- tions, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from engaging in any or all such activities. 2.' Take the following affirmative action which the Board finds will effectuate the policies of the Act : ' (a) Offer to Quenton Reese and Gordon M. Treadwell immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of their discharges. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due and the rights of employment under the terms of the Order herein. (c) Post at its place of business in Fayetteville, North Carolina, copies of the notice attached hereto marked "Appendix." 5 Copies of said notice, to be supplied by the Regional Director for the Eleventh Region, shall, upon being duly signed by a representative of the 'Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Eleventh Region, in writ- ing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent discriminatorily dis- charged Manard E. Bough in violation of Section 8(a) (1) and (3) of the Act. 5In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discharge, threaten to discharge or by any other means discriminate against Quenton Reese, Gordon M. Treadwell, or any other employee, because of their activity on behalf of Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or its Local 391, or any other labor organization. WE WILL NOT threaten or coerce employees because of their mem- bership or interest in or activities on behalf of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, or its Local 391, or any other labor organization. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act, by discriminating in regard to their hire or tenure of employment to any term or condition of employment. WE WILL offer to Quenton Reese and Gordon M. Treadwell immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. WE WILL make whole Quenton Reese and Gordon M. Treadwell for any loss of pay suffered as a result of the terminations of their employments. RYDER TANK LINES, INC., Employ er.- Dated---------------- By-----------------------------=------- (Representative) (Title) r This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office (1831 Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina; Telephone Number Park 4-8356) if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDATIONS STATEMENT OF THE CASE This proceeding was heard before the duly designated Trial Examiner in Fayette- ville, North Carolina, on September 20, 21, and 22, 1960. The issues litigated were whether Ryder Tank Lines, Inc., herein called Respondent, violated Section 8(a) (1) and (3) of the National Labor Relations Act, as amended, herein called the Act. After the close of the hearing, Respondent filed a brief which the Trial Examiner has considered. Upon the entire record and observations of witnesses, the Trial Examiner makes the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Ryder Tank Lines, Inc., is a common carrier engaged' in the hauling of liquid freight, including chemicals, petroleum, and glue, in interstate commerce. It is licensed by the Interstate Commerce Commission and various State commissions and maintains terminals at Charlotte, Greensboro, and Fayetteville, North Carolina; RYDER TANK LINES, INC. 941 Chattanooga, Copper Hill, and Knoxville, Tennessee; Franklin, Virginia; Charles- ton and Glasgow, West Virginia; and Dothan, Alabama. The carver performs its operations as a carrier for hire of liquid freight mainly along the eastern seaboard and has approximately 150 employees. The evidence reveals that Respondent is engaged in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act and that the Board's requirements for the assertion of jurisdiction have been established.' II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and its Locals 391 and 71, are labor organizations within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Issues Effective June 18, 1960, Respondent terminated the employment of three of its drivers at its Fayetteville, North Carolina, terminal and the primary question for decision herein is whether antiunion motivation lay behind these layoffs. Apparent- ly,2 the General Counsel does not dispute that layoffs were in order because of lack of business but contends that the persons selected for layoff (Quenton Reese, Gordon M. Treadwell, and Manard E. Bough) were selected because "of their actual or suspected membership in and activities on behalf of" the Teamsters Union "and because they engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid or protection." Respondent disputes this, contention and claims "it was a matter of management choosing its most valuable employees to be retained and its three less valuable employees to be terminated." B. The facts In June or July 1959 Reese and Treadwell contacted a representative of the Teamsters Union about organizing the employees at Respondent's Fayetteville ter- minal and made arrangements for this representative- to meet with the drivers in- volved during July. At the meeting in July 1959 each of the drivers at this terminal signed authorization cards for Local 391 of the Teamsters Union. Thereafter, on September 10, 1959, a Board-conducted election was held and a majority of those voting voted not to be represented by Local 391. . Immediately prior to the election Respondent engaged in conduct which was antiunion in character and which played an important part in the outcome of the election. For example, employees were interrogated about their union sympathies and informed that Respondent's officials (officials in Respondent's main office in Greensboro, North Carolina) would not tolerate union activities and would re- taliate against active union sympathizers. In addition, Respondent deliberately, and because of their known union sympathies, assigned Reese and Treadwell out-of-State duties on the day of the election so that they would not be available during the times the balloting was taking place. Nevertheless, no objections to such conduct or unfair labor practice charges based upon such conduct were filed and such con- duct is material herein only as background and may not form the basis' for a decision since the charges involved were filed `more than 6 months after the conduct noted. The charges herein were filed by Reese and Treadwell on June 27, 1960, and by Bough on July 5,1960. During the few weeks immediately following the election, Respondent's ter- minal manager at Fayetteville (Calvin E. Morrison) frequently interrogated em- ployees concerning their union sympathies and on one or more occasions told Bough that he had orders from Greensboro to fire anybody that he heard of trying to organize or talking of a union. Because of the 6 months' limitation of the statute, no unfair labor practice finding may be based upon this conduct and such conduct is material herein only as background in evaluating Respondent's conduct within 6 months of the filing of the charges. i Respondent concedes that the operations here involved are within the jurisdiction of this Agency. 2 During the course of the hearing several matters, Including the General Counsel's theory, were not made clear and the Trial Examiner requested that counsel clarify these matters in their briefs. Nevertheless, no brief on behalf of the General Counsel has been received 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After the election on September 10, 1959, no further efforts to organize the drivers at Respondent's Fayetteville terminal were made until April or May 1960 when Reese and Treadwell made an abortive effort in ,this direction. However, the employees themselves frequently discussed among themselves various grievances (referred to in the record as gripes) which they believed meritorious and many of these matters were discussed with Respondent's officials. Reese and Treadwell were considerably more active in handling these grievances than were the other employees-probably because of their prior efforts at organizing and because they were long-time employees of Respondent and consequently had a senior and respected standing among the employees. In any event, they were outstanding in this regard and Respondent was well aware of these activities by them. As might be expected, some of the grievances had merit and some did not. In fact, some of the complaints may have been because of a personality clash with the terminal manager and because of personal resentment toward him and, consequently, of a picayune and irritating nature. Others seem to have consisted of upsetting rumors which tended to disturb employees and have the "place jumping." In other words, some of the grievances handled by Reese and Treadwell concerned rates of pay, wages, or other conditions of employment and some were severe condemnations of Respondent's ways-grousing or griping-in the presence of fellow employees. - In May 1960, Terminal Manager Calvin E. Morrison indicated to driver William Jennings Smith that he (Morrison) anticipated- another election in which the em- ployees would have an opportunity to select the Teamsters Union as their bar- gaining agent and that he would have to iget rid of Reese and Treadwell prior to that time. On other occasions after this date Morrison made statements to various individuals indicating that he anticipated another election in July 1960.3 Because of a loss of revenue, Respondent in June 1960 curtailed its operations in three terminals-Charlotte, Greensboro, and Fayetteville, North Carolina. Four men were laid off in Charlotte, one man in Greensboro was discharged for negli- gence and not replaced, another quit and was not replaced, and two other men were hurt in an accident and hospitalized and not replaced. Three men (the three in- volved herein) were terminated at Fayetteville. They have not been replaced. The selection of Reese and Treadwell for termination was made by W. Reid Fitchett, vice president and general manager of Respondent, and by Lee Kruggel, operations manager of Respondent, and communicated (via telephone from Greens- boro to Fayetteville) to Calvin E. Morrison, the terminal manager in Fayetteville, on June 17, 1960. At the same time the terminal manager was told to select the third person to be terminated . He selected Bough. Thereafter, Reese, Treadwell, and Bough were terminated effective -June 18, 1960. Reese, Treadwell, and Bough have not been recalled and there has been no replacement of these three drivers. As there had been no layoffs or terminations at the Fayetteville terminal prior to the occasion in question, there is no evidence establishing that a seniority policy had been applied, or not applied, to layoff situations. The record does indicate, however, that in other matters, such as assignment of equipment, Respondent followed a policy of assigning its newer and more desirable equipment to its more senior employees. Reese, Treadwell, and Bough had considerably more seniority (had considerably longer service with Respondent and at this terminal) than employees who were retained. As noted above, Vice President and General Manager Fitchett and Operation's Manager Kruggel selected Reese and Treadwell for termination. When asked,the reasons for picking Reese and Treadwell, Kruggel testified: A. My reason for picking Reese and Treadwell was the reason that Reese and Treadwell were argumentative and trying to usurp the morale of manage- ment. Both of these men had been in the employ of the Company practically since its inception, both of these men believed that they could run the terminal, there is a difference in being a driver and management. We were hiring Mor- rison to run the terminal. We had picked, not an assistant terminal manager, but an assistant to the terminal manager, Jenkins, who had been- Q. What Jenkins is that now? A. Earl Jenkins. Earl Jenkins had been a former watchman, but we were trying to build, and we had made Jenkins as assistant to the terminal manager, and that is an awful lot of difference, between an assistant terminal manager, 8 Morrison's testimony to the contrary is not credited by the Trial Examiner. Such testimony is rejected on the basis of the Trial Examiner 's observations of the witnesses and analysis of the record. RYDER TANK LINES, INC. 943 and an assistant to the terminal manager, we were trying to build Jenkins into (a position where he could be useful. I converse with all my terminal managers from one to five times per week, over the telephone or over the teletype. Each and every time I would discuss something pertaining to the Fayetteville terminal, either with Jenkins or with Morrison, the name of Reese and Treadwell was constantly being brought up. They would tell me this person ought to be laid off, this person was running wrong, this operation was not running to their satisfaction. I.had met with the group a month after I had been employed, and I had specifically outlined what we would do and how we would run the operation. It was the request of'the employees that instead of running the operation on a first-in, first-out basis, that they all be given an equal opportunity to earn a living, and therefore they desired that the terminal manager and the assistant to the terminal manager dispatch their loads so that they would have an equal income, averaging approximately $125 to $150 a week. We agreed to this, and I would personally check week after week to see how the incomes of these men were going , and as close as possible , as close as humanly possible in operating a trucking business, the men were receiving approximately the same salary. I assured these men that this would be the way that it would be run, and that would be it. Mr. Fitchett was there, and substantiated and backed up everything I said. I would verify the earnings of these men so there could not be anything wrong, such as was given here, one man receiving $150 a week more than the other fellows, and I have figures to prove that this is not correct, and that the earning were approximately the same; yet we continually had bickering, back- biting, always the two men , the two same men, telling management how they ought to operate. For that reason when we had an opportunity, when we were forced to lay men off, and as there was no seniority, I requested Mr. Fitchett that we dispense with the services of Reese and Treadwell. Concerning the phrase "usurp the morale of management," Kruggel testified: TRIAL EXAMINER: I gather that you had gotten some reports from Mr. Mor- rison indicating that he , Mr. Morrison, was kind of unhappy about the conduct of Mr. Reese and Mr. Treadwell? The WITNESS: Yes, sir. TRIAL EXAMINER: Of, over what period of time did you get those reports? The WITNESS: From the evening I met with the drivers, continuously. TRIAL EXAMINER: That would be from October on up until the time they were let go? The WITNESS: That is correct. TRIAL EXAMINER: And can you give us any idea of the approximate fre- quency or numbers of such reports. The WITNESS: I would say about once every two weeks. TRIAL EXAMINER: And did the reports always involve the same type of thing, or different types? The WITNESS: The reports always indicated that Reese and Treadwell, in my opinion, were trying to usurp the function of management. TRIAL EXAMINER: That is the reason I am trying to get into that , you used that before, what do you mean? The WITNESS: I mean coming in and saying "Did you hear that we might get fired," and saying, "You had better start laying off the younger men," or "You should have sent somebody on a double operation instead of a single operation," "Why don't you send me on this run, I don't want to go on a gasoline run," "Why don't you want to go? You ought to be sick." "Well, I am sick right now," things of that kind. About a week before he was terminated Bough complained to Terminal Manager Morrison that he (.Bough) had not received the amount of money that he believed he was entitled to for layover time on a trip which he had recently made. Bough and Morrison did not arrive at a mutually satisfactory disposition of this matter and on or about June 9, 1960, Bough (in accordance with a procedure recommended by Respondent) took the matter up with Respondent's operation manager (Kruggel), who in turn consulted Morrison about the matter. Morrison testified that he re- sented this appeal to Kruggel even though it was in accord with suggestions made earlier by Kruggel and that when he (Morrison) was given the opportunity to select the third man to be laid off he selected Bough because of his going "over my head." 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusions From the facts found above, and the entire record herein, it appears that Reese and Treadwell were selected for discharge because of their handling of what is called in the record "gripes" and that Respondent hoped that the termination of these two would decrease the griping and thereby lead to greater "harmony" among employees at the Fayetteville terminal. The record reveals further that the "gripes" handled were dual in nature-some concerned matters protected by the Act (wages, hours, or other conditions of employment) and some concerned matters probably not protected by the Act (mere griping or grousing)-and Respondent' s reasons for selecting Reese and Treadwell -included both types of "griping." Furthermore, the record is such that the Trial Examiner cannot separate the wheat from the chaff (the protected from the unprotected activity) and concludes that Respondent was interested only or even primarily in eliminating the mere griping or grousing. To the contrary, the Trial Examiner believes, finds, and concludes that the motivating cause included an un- lawful reason (the concerted activity of Reese and Treadwell in handling grievances concerning wages, hours, or other conditions of employment). It is now well settled that where an unlawful reason is a motivating cause, the coexistence of separate lawful reasons do not eliminate the unlawful aspect of the conduct .4 Accordingly, the Trial Examiner concludes and finds, that the discharges of Reese and Treadwell were part of Respondent's efforts to discourage "concerted activity" and Were therefore, violative of Section 8(a)(1) of the Act, even if they were not violations of Sec- tion 8(a)(3). Whether the discharges constitute violations of Section 8(a)(3) of the Act need not be determined herein since the remedy which the Trial Examiner deems appropriate is the same whether the discharges are viewed as a violation of Sec- tion 8(a)(1) or of Section 8(a)(3) or of both. As noted above, Bough was terminated for presenting a grievance on his own be- half. The question posed, therefore, is whether such activity (the presenting by an individual of a grievance on his own behalf) is activity protected by the Act so as to render terminations for such conduct unlawful. While Section 8(a)( I) of the Act ,protects employees exercising the rights guaran- teed by Section 7, which authorizes employees to engage in concerted activities or to refrain from such activities, the Act does not specifically authorize individual activity except in one instance-where there is a bargaining representative .5 It might be argued that a violation of the Act should be found on the rationale that to sanction a discharge for presenting a grievance would defeat the purpose of the Act-a friendly adjustment of industrial disputes-and materially weaken the guaran- tees of the Act since inevitably employees would learn of the discharge for presenting an individual grievance and regard it as a reliable indication of what might befall them if they engaged in group activity. However, in the light of The Office Towel Supply Company, Incorporated,6 and Walls Manufacturing Company, Inc.,7 the Trial Ex- aminer believes that he should (and he hereby does ) reject any such contention .8 In the last two cases cited the employees involved acted with other employees so that their activity was concerted or protected but the discharges were held to be not un- 4 See N.L.R.B v. Whitin Machine Works, 204 F. 2d 883, 885 (C.A. 1). S Section 9(a) of the Act reads as follows: SEc 9 . (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the pur- poses of collective bargaining in respect to rates of pay, wages, hours of employ- ment, or other conditions of employment: Provided, That any individual,employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment. 997 NLRB 449, enforcement denied 201 F. 2d 838 (C.A. 2). 7128 NLRB 487. 8 The Trial Examiner is cognizant that in H. Muehl8tein & Co , Inc, 118 NLRB 268, on p. 275, it is stated that "the privilege of an employee to present a grievance to his em- ployer is an inherent right guaranteed him under Section 7 of the Act and . . . ." However, in the Muehlstein case there was in effect a collective -bargaining agreement between the company and the union-a factor not present in the instant matter and a factor which, as noted above, seems to be crucial. POWER EQUIPMENT COMPANY 945 lawful since Respondents were not aware of the fact that the individuals involved had acted with other employees. Absent the concerted nature of the activity it appears that the conduct of the employees discharged was conduct equivalent to that of filing of individual grievances . Nevertheless, the discharges were held to be not violative of the Act. In short, the Office Towel Supply and the Walls cases indicate that em- ployee activity is not protected by the Act so as to render terminations for such conduct unlawful unless ( 1) the activity is "in fact concerted activity" and (2) the facts are such as to "warrant attributing to the Respondent knowledge " that the activity was "concerted." These factors are not present in the Bough situation. Accordingly, the Trial Examiner recommends that the allegations of the complaint to the effect that Respondent unlawfully discharged Bough be dismissed. ULTIMATE FINDINGS AND CONCLUSIONS In summary, the Trial Examiner finds and concludes: 1. The evidence adduced in this proceeding satisfies the Board's requirements for the assertion of jurisdiction herein. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Locals 391 and 71, are labor organizations within the meaning of Section 2(5) of the Act. 3. The evidence adduced establishes that Respondent interfered with , restrained, or coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act by threatening to discharge employees active on behalf of the afore- mentioned labor organization and by terminating the employment of Quenton Reese and Gordon M. Treadwell. 4. The aforesaid activities are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The evidence adduced does not establish that Respondent violated the Act by terminating the services of Manard E. Bough. [Recommendations omitted from publication.] Power Equipment Company and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO. Case No. 8-CA-2295. February 8, 1962 DECISION AND ORDER On October 18, 1961, Trial Examiner James F. Foley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached thereto. He also recommended that certain other allegations of the complaint be dismissed. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report, together with a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.' The IIn its brief, the Respondent contends that the Trial Examiner and the Regional Director erred in not granting its requests for a continuance of the hearing herein until 135 NLRB No. 94. 634449-62-vol. 135-61