Hunt Oil Co., 282 (1966)

DECISION AND ORDER

On October 14, 1965, Trial Examiner Herman Tocker issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in any unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief, and the Respondent filed an answering brief to General Counsel's exceptions.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Brown, Fanning, and Zagoria].

The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' [The Board adopted the Trial Examiner's Recommended Order dismissing the complaint.] 1 While we agree with the General Counsel that the Trial Examiner erroneously denied his motion to amend the complaint to allege additional 8(a) (1) violations, and while the evidence in the record as made tends to support such proposed allegations, we nevertheless do not believe that the purposes of the Act would be effectuated in the present posture of this entire case to grant the General Counsel's motion for remand respecting such additional matters.

TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

This proceeding was heard before Trial Examiner Herman Tocker in Fort Smith,

Arkansas, on June 7, 8, and 9, 1965. The case was heard on pleadings consisting of the General Counsel's consolidated complaint alleging two unlawful discharges and the Respondent's answer. The General Counsel gave notice 3 business days before the hearing of his intention to move to amend the consolidated complaint by adding an entirely new count not therein set forth. This was to the effect that the Respondent had 'interrogated its employees concerning the union activities, membership in and sympathies of its employees ' This was enlarged further by a telegram sent to Respondent's attorneys on the Saturday before the hearing, scheduled to commence on the following Monday. At the hearing Respondent opposed the amendments and, in the alternative, demanded a continuance. The application to amend was granted with the qualification that it would be reconsidered at the conclusion of the General Counsel's prima facie case and the application for a continuance was denied. At the conclusion of the General Counsel's prima facie case, Respondent's attorneys renewed their opposition to the amendments and their demand for a continuance in the event that the amendments remained in the case . Having 157 NLRB No. 21.

HUNT OIL COMPANY, H.L.H. PRODUCTS DIVISION 283 taken into consideration the nature of the amendments, the testimony submitted in support, and the problem with which I was confronted by the Respondent's application for a continuance which would have required, if granted, an additional trip by me from Washington, D C., to Fort Smith, Arkansas, and by the General Counsel's representative from Memphis, Tennessee, to Fort Smith, Arkansas, I again denied the motion for a continuance but, at the same time, in my discretion, on reconsideration, denied also the motion for the amendments. The proposed amendments have not been pressed by the General Counsel in his brief following the close of the hearing. In addition to the General Counsel's brief, there has been submitted also a brief on behalf of the Respondent.

The Pleadings In the complaint it is alleged that the Respondent: (1) discharged employee William Henry Williams and thereafter refused and failed to reinstate him because he had joined, participated, or engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection; and (2) discharged Supervisor J. D. Davis and refused to reinstate him because he had failed and refused to participate with Respondent in.the discharge of employees who had engaged in union activities or other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Although Davis was a supervisor and therefore not within the protection of Section 8(a)(3) of the Act, the theory of the complaint is that Respondent's purpose in discharging him was to interfere with, restrain, and coerce its employees in the exercise of their rights guaranteed under Section 2(6) and (7) as defined in 8(a)(1). (The charges were filed by Williams and Davis as individuals. The Davis charge was filed originally on February 28, 1965, and amended April 8, 1965. The Williams charge was filed originally on March 7, 1965, and amended April 9, 1965. The amendments did not vary the original charges in any material respect.) The Respondent, in its answer, while admitting several of the formal allegations contained in the complaint and that it had discharged both Williams and Davis, denied all allegations to the effect that the discharges were unlawful. It alleged affirmatively that: (1) Williams had been discharged because of his failure to obey the orders of his superiors and his violation of the Company's established and published procedures; and (2) Davis had been discharged because of his unsatisfactory performance in his position as warehouse foreman.

The Issues As far as Williams is concerned the issue simply is whether his discharge, allegedly for smoking in violation of the Company's 'No Smoking' rule, was merely pretextual and really because of his union activities, or whether he was discharged rightfully because, admittedly, he had smoked in violation of the rule.

The issue as far as Davis is concerned is more technical. Davis was a supervisor.

Being a supervisor he was excluded from protection by 29 U.S.C.A. Sec. 152(3),

Section 2(3) of the Labor Management Relations Act, 1947.

It is well established, however, that if a supervisor is discharged and the effect of his discharge is to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed to them in Section 7 of the Act, the discharge is unlawful and the Board may frame a remedial order which would require his reinstatement very much in the same fashion as an employee who is discharged in violation of 8(a )(3). On the other hand, if the circumstances are such (with the exception of a supervisor called to testify under Section 8(a)(4) of the Act) that he was discharged because of some union activity or some failure to follow his employer's instructions or wishes with respect to union activities, and the facts of the discharge are not brought home to the rank-and-file employees, it does not follow that there has been an interference with, restraint, or coercion of employees in the exercise of their rights under Section 7. In that event, remedial action by the Board is not appropriate.

Consequently, as far as Davis is concerned, the General Counsel, in order to support the complaint, would have to prove [since the case does not involve testimony given under 8(a)(4)] that the alleged reasons for the discharge were of such a nature and occurred under such conditions that the employees became aware (or can be assumed to have become aware) of the fact that it was connected with union activities and, inferentially, thereby would be justified in concluding that a similar fate would befall them if they exercised their rights under Section 7. Vail Manufacturing Company, 61 NLRB 181; N.L.R.B. v. Inter-City Advertising Co. of Charlotte, N.C., Inc., et al., 190 F. 2d 420 (C.A. 4), enfg. as modified 89 NLRB 1103;

N.L.R.B. v. Talladega Cotton Factory, Inc., 213 F. 2d 208 (C.A. 5), enfg. 106

NLRB 295; Better Monkey Grip Co., 115 NLRB 1170, enfd. N.L.R.B. v. Better Monkey Grip Company, 243 F. 2d 836 (C.A. 5); Eugen Pedersen (Modern Linen & Laundry Service, Inc.) v. N.L.R.B., 234 F. 2d 417 (C.A. 2), reversing and remanding 110 NLRB 1305; N.L.R.B. v. Dal-Tex Optical Co., Inc., 310 F. 2d 58 (C.A. 5), enfg.

as modified 131 NLRB 715; Oil City Brass Works, 147 NLRB 627; Leas & McVitty,

Incorporated, 155 NLRB 389.

There is also Jackson Tile Manufacturing Company, 122 NLRB 764, in which the Board found the discharge of a supervisor a violation without making any specific reference to the fact that employees became aware of or could be assumed to have become aware of the fact of the discharge and the reason therefor. The footnote reference to this holding is Talladega Cotton Factory, Inc., above, but it is clear from Talladega that the facts of the discharge in some way must be brought home to the rank-and-file employees. In that case, it will be recalled that the Board, in 106 NLRB at 297, rejecting the Trial Examiner's conclusion, emphasized that the respondent's opposition to the union was well known to the rank-and-file employees and that, under the circumstances there, the discharges having followed immediately on the heels of the union's victory, [They] plainly demonstrated to rank-and-file employees that this action was part of its plan to thwart their self-organizational activities -and evidenced a fixed determination not to be frustrated in its efforts by any half hearted or perfunctory obedience from its supervisors .... [T]he net effect of this conduct was to cause nonsupervisory employees reasonably to fear that the Respondent would take similar action against them if they continued to support the Union.

For this reason, .... the discharge violated Section 8 (a) (1) of the Act.

Consequently, Jackson Tile may not be regarded as having expanded the rule enunciated as early as 1945 in Vail Mfg., supra.

After consideration of the entire record, the briefs...