Mission Oil Co.

National Labor Relations Board - Board Decisions

Apr 5, 1951

93 N.L.R.B. 1215 (N.L.R.B. 1951)

MISSION OIL COMPANY 1215
and assistant foremen, and all other supervisors as defined in the Act, con-
stitute, and at all times material herein did constitute, a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9 (b) of the
Act.
3. United Electrical, Radio and Machine Workers of America was on April
21, 1950, and at all times thereafter has been, the exclusive representative of
all Respondent's employees in said unit for the purpose of collective bargain-
ing within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with United Electrical, Radio and Ma-
chine Workers of America as exclusive representative of its employees in the
appropriate unit, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, Respondent has engaged
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
6. The foregoing unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
Respondent did not engage in unfair labor practices by discharging Laura
Atkinson and Earl Oslie.
[Recommended Order omitted from publication in this volume.]
MISSION OIL COMPANY , HARRY C. LONG, AN INDIVIDUAL , PADRE OIL
COMPANY, AND REAL OIL COMPANY and OIL WORKERS INTERNA -
TIONAL UNION, CIO. Case No. 20-CA-325. April 5, 1951
Decision and Order
On November 29, 1950, Trial Examiner Howard Myers, issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report, and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Reynolds, and Styles].
The Board has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions, the Respondents' brief, and the entire record in the
case, and for the reasons hereinafter set forth finds merit in the
Respondents' exceptions.
1. The Trial Examiner found that the Respondents discharged and
refused to reinstate Robert W. Loveless, Jr., because of his union
membership and activities, and more particularly because he testified
93 NLRB No. 218.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfavorably to the Respondents in a prior proceeding before the
Board,' and that they thereby violated Section 8 (a) (3), (4), and
(1) of the Act. We do not agree.
We do not believe that the General Council has established by the
preponderance of the evidence that Loveless was discharged for union
membership and activities, or for testifying in the prior Board
proceeding.2
There is uncontradicted evidence in the record not mentioned in
the Intermediate Report, of the following instances of misconduct by
Loveless :
Superintendent Wickliffe, in the spring of 1949, reprimanded Love-
less for neglecting to check the heat of the polish rods on one of the
Respondents' wells. Loveless reacted to the reprimand in a rude and
insubordinate fashion. In the summer of 1949, according to the
testimony of Long, Loveless fell asleep at the wheel while driving and
damaged a truck of the Respondents. Again, in October 1949, a few
weeks prior to his discharge, according to his own testimony, Loveless,
without authority, took a company truck during duty hours to visit
a duck pond. He became mired in a mud hole, necessitating aid to
extricate himself and causing inconvenience to the Respondents.
In addition, as found by the Trial Examiner, Loveless admitted
that he had on several occasions visited the properties of other oil
companies during working hours and there is no dispute in the record
that at least one of these visits, in the spring or early summer of 1949,
was unauthorized.3
The Trial Examiner found that Long showed his displeasure with
Loveless' testimony at the earlier hearing by stating on the witness
stand that "I had nothing to do with Mr. Loveless at all, after they
went to that hearing and said I coerced against them." We are
unable to agree that this statement, read in its proper context, indi-
cates that Long was displeased because Loveless testified unfavorably
to the Respondents at the earlier hearing. As we construe it, Long's
statement was intended merely to identify the hearing to which he
had reference and not to indicate displeasure because Loveless testi-
fied to "coercion" by the Respondents.
The Examiner also found that after his discharge by the Respond-
ents, Loveless, through Wickliffe, found employment with another
I Mission Oil Company, 88 NLRB 743
2 The record shows that at the hearing in that case, which took place on October 11,
1949 , Loveless testified to interrogation by the Respondents concerning union activities.
3 Contrary to the statement in the Intermediate Report , the record does not clearly show
that employees other than Loveless frequented the oil fields of nearby companies. There
is in the record no evidence of such visiting except for a general statement of witness
Diebenbrock that oil field employees were in the habit of visiting each other.
The Examiner found that both Long and Wickliffe admitted that they did not reprimand
Loveless for absences from work during duty hours. ) The record shows, however, that
both testified that they reprimanded Loveless for leaving his job during duty hours.
MISSION OIL COMPANY 1217
employer as a pumper, the same position he had held with the Re-
spondents. The only evidence in the record on this point, however,
is to the effect that Wickliffe hired him for the other employer as a
roustabout or watchman, positions involving less responsibility than
the work of a pumper.
Finally, the Examiner found, on conflicting evidence, that the in-
cident alleged by the Respondents as the precipitating cause of Love-
less' discharge-namely, Wickliffe's finding him asleep on the job on
October 26, 1949-did not in fact occur. Accepting the Examiner's
finding on this point, we are left with a record which shows merely
that Loveless, who was proved to be an unsatisfactory employee, was
discharged about 2 weeks after he testified in the prior Board pro-
ceeding.4 Absent any evidence in this record that Loveless was other-
wise active on behalf of the Union and that the Respondents engaged
in any antiunion conduct subsequent to the events found in the prior
proceeding, we are not convinced that a preponderance of the evidence
warrants a finding that Loveless was discharged because he testified
in the Board proceeding or because of his union membership and
activities.
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 complaint issued herein
against the Respondents, Mission Oil Company, Harry C. Long, an
individual, Padre -Oil Company, and Real Oil Company, be, and it
hereby is, dismissed.
Intermediate Report
Benjamin B. Law, Esq., for the General Counsel.
Messrs. Orris R. Hedges and Delbert C. Thomas, for the Respondents.
Homer Coffman, Esq., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on January 3, 1950, by Oil Workers In-
ternational Union, affiliated with the Congress of Industrial Organizations, herein
called the Union, the General Counsel of the National Labor Relations Board, re-
ferred to herein, respectively, as the General Counsel and the Board, by the
Regional Director for the Twentieth Region (San Francisco, California), issued
his complaint on August 31, 1950, alleging that Mission Oil Company, Harry C.
Long, Padre Oil Company, and Real Oil Company of Raisin City Field at Kerman,
California, collectively referred to herein as the Respondents, had engaged in
and were engaging in unfair labor practices affecting commerce, within the mean-
ing of Section 8 (a) (1), (3), and (4) and Section 2 (6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
4 Two other employees who also testified in the prior proceeding adversely to the
Respondents, were not discharged.
943732-51-78
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of the complaint, the amended charge, together with notice of hearing
thereon, were duly served upon each Respondent and upon the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
that each of the Respondents discharged Robert W. Loveless, Jr., on October 27,
1949, and have at all times thereafter failed and refused to reinstate him because
Of his membership and activity in and on behalf of the Union, and because he
testified on October 11, 1949, at the hearing before a Trial Examiner of the Board
in Mission Oil Company, et at, and Oil Workers International Union, CIO, Cases
Nos. 20-CA-214, 258, 259 and 260.
On September 11,'1950, the Respondents filed a joint answer admitting certain
allegations of the complaint with respect to the nature and extent of their re-
spective businesses, but denying the commission of the alleged unfair labor prac-
tices.
Pursuant to notice, a hearing was held in Fresno, California, on October 10 and
11, 1950, before Howard Myers,' the duly designated Trial Examiner. The Re-
spondents and the General Counsel were represented by counsel ; the Union by a
representative thereof. All parties participated in the hearing and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence pertinent to the issues.
At the conclusion of the General Counsel's case-in-chief, the Respondents' mo-
tions to dismiss the complaint in its entirety or, in the alternative, certain por-
tions thereof, were denied. At the conclusion of the taking of the evidence, the
General Counsel's motion to conform the pleadings to the proof with respect to
minor variances, but not to include any new unfair labor practices, was granted
without objection. Counsel for the Respondents then renewed the motions to
dismiss the complaint made by him at the conclusion of the General Counsel's
case-in-chief. Decision thereon was reserved. The motions are hereby denied.
The General Counsel then argued orally. Counsel for the Respondents waived
oral argument. The parties were then advised that they might file with the
undersigned briefs or proposed findings of fact and conclusions of law, or both,
on or before October 26.2 A brief has been received from the Respondents' counsel
which has been carefully considered by the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESSES OF THE RESPONDENTS
Mission Oil Company, herein called Mission, is, and at all times material
herein has been, a California corporation with its principal offices in Los Angeles,
California, and is and has been engaged in the production, manufacture, trans-
portation, sale, and distribution of crude oil. It owns and operates wells pro-
ducing crude oil in the Raisin City Field located at Kerman, California.
Mission annually produces crude oil valued at more than $100,000 and sells
such oil within the State of California to the Shell Oil Company, the Union
Oil Company, and to the Standard Oil Company of California. The said three
named companies are engaged, as the Board has on numerous occasions found, in
interstate commerce within the meaning of the Act. Each of the said com-
panies refines the said crude oil sold to each of them by Mission and inter-
mingles it with their other refined petroleum products which are sold and
1 Erroneously referred to in the stenographic transcript of the hearing as Harold Myers.
2 Upon request of counsel for the Respondents the time was extended to November 6, 1950.
MISSION OIL COMPANY 1219
delivered in interstate commerce in various States of the United States. In the
course and conduct of its business, Mission annually purchases tools, gasoline,
supplies, and equipment valued at approximately $5,000, of which 50 percent
originate outside the State of California.
Harry C. Long, herein called Long, is, and during all times material herein
has been, engaged in the production, manufacture, transportation, sale, and
-distribution of crude oil. Long has his principal offices in Los Angeles, Cali-
fornia, and owns and operates wells in the Raisin City Field located at Kerman,
California, which annually produce crude oil valued at more than $10,000. Long
sells such crude oil to Shell Oil Company, Union Oil Company, and Standard
Oil Company of California, which refines it and intermingles it with other
refined petroleum products which are sold and delivered in interstate commerce
in various States of the United States. In the course and conduct of his busi-
ness, Long purchases tools, gasoline, supplies, and equipment valued in excess
.of $5,000, of which more than 50 percent originate outside the State of California.
Real Oil Company, herein called Real, is, and during all times material herein
has been, a California corporation with its principal offices in Los Angeles, Cali-
fornia, and is and has been engaged in the production, manufacture, transpor-
tation, sale, and distribution of crude oil. It owns and operates wells produc-
ing crude oil in the Raisin City Field located at Kerman, California.
Real annually produces crude oil in excess of $10,000 which it sells to Shell
Oil Company, Union Oil Company, and Standard Oil Company of California.
The said three companies refine the crude oil sold to them by Real and inter-
mingle it with their other refined petroleum products which are sold and
delivered in interstate commerce in various States of the United States. In
the course and conduct of its business, Real annually purchases tools, gasoline,
supplies, and equipment valued at approximately $5,000, of which more than
50 percent originate outside the State of California.
Padre Oil Company, herein called Padre, is, and at all times material herein
has been, a California corporation with its principal offices in Los Angeles,
California, and is and has been engaged in the production, manufacture, trans-
portation, sale, and distribution of crude oil. It owns and operates wells pro-
ducing crude oil in the Raisin City Field located at Kerman, California.
Padre annually produces crude oil valued at more than $50,000 which it sells
to Shell Oil Company, Union Oil Company, and Standard Oil Company of Cali-
fornia. The three named companies refine the crude oil sold to them by
Padre and intermingle it with their other refined petroleum products
which are sold and delivered in interstate commerce in various states of the
United States. In the course and conduct of its business, Padre annually pur-
chases tools, gasoline, supplies, and equipment valued in excess of $20,000, of
which more than 50 percent originate outside the State of California.
The four named Respondents annually jointly produce and sell to Shell Oil
Company, Union Oil Company and Standard Oil Company of California crude
oil valued at more than $500,000.
Each Respondent concedes, and the undersigned finds, it, or he, is, and during
all times material herein has been, engaged in commerce, within the meaning
of the Act e
II. THE ORGANIZATION INVOLVED
Oil Workers International Union, affiliated with the Congress of Industrial
Organizations, is a labor organization admitting to membership employees of
.each Respondent.
3In Mission Oil Company, et at, 88 NLRB 743, decided February 24, 1950, the Board
found that each Respondent herein was subject to its jurisdiction.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD r
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; the discharge of Loveless
This case involves the very narrow issue whether the Respondents ` on•
October 27, 1949, discharged Robert W. Loveless, Jr., because of his member-
ship and activity in behalf of the Union, and because he gave testimony ini
a former Board proceeding to which each of the Respondents herein was a
party or whether Loveless was discharged because, as maintained by the Re-
spondents, "of his continuous neglect to conduct himself in a workmanlike
manner while on duty in the scope and course of his employment which negli-
gent conduct- was of such a nature as to jeopardize the safety of property
and other interests of Respondents."
Loveless was first employed by the Respondents on or about October 24,
1947, and worked continuously for them until his discharge on October 27, 1949,
first as a roustabout and then as a pumper. Long testified, and the under-
signed finds, that he promoted Loveless to a pumper, after the latter had been
employed for a few months, because it was a better job and a better paying
job.
On October 11, 1949, Loveless testified as a witness for the General Counsel
in a proceeding before the Board entitled, Mission Oil Company, et at. and
Oil Workers International Union, CIO, Cases Nos. 20-CA-214, 258, 259, 260.
The complaint in that case alleged, among other things, that, in violation of
Section 8 (a) (3) of the Act, the Respondents had discharged four named
employees in March 1949, because of their union and concerted activities ; had
violated Section 8 (a) (5) of the Act by refusing to bargain collectively with
the Union although the Union had been selected and designated the collec-
tive bargaining representative by their employees in a certain appropriate
unit; and had violated Section 8 (a) (1) of the Act by engaging in certain
stated conduct and acts constituting interference, restraint, and coercion.
The Respondents defaulted at the aforesaid hearing, but purchased a copy
of the stenographic transcript of the hearing from the official reporter on
October 24, 1950.
In the course of his testimony in the aforesaid proceeding 6 Loveless re-
lated the conversation he had with Long, summarized in the Board's findings
4In the prior proceeding, referred to above, the Board found the Respondents were
jointly and severally answerable for the commission of the unfair labor practices found
therein The facts herein unmistakably show, as the Board found in the said prior
proceeding, "that although the employees, or some of them, were paid by Mission checks,
they were hired by Respondent Long, or his agent, were subject to his orders and directions,
and worked at the operations of each pursuant to his directions . . . Long is president
of each of the respondents and generally controls and directs the operations of each in,
the Raisin City Field. In any event, it is clear that Respondent Long acted in a
managerial capacity on behalf of each of the respondents in matters affecting personnel,
including the hiring and discharging of employees. His actions and conduct in his said
managerial capacity are therefore binding on each of the respondents."
Admittedly, Padre, Real and Long have no employees of their own and whatever work
that is done at their respective oil fields is performed by Mission employees at Long's
behest Mission either advances the employees' wages for the work performed at Padre's,
Real's, or Long's fields or they are paid direct by the party for whom they are performing
work.
6 At the hearing herein, and in his brief, counsel for the Respondents contended that
neither the undersigned nor the Board may take judicial or official notice of the Board's
decision and order in the prior case. The contention is without merit. An administrative
agency, like a court, "has a right to examine its own records and take judicial notice
thereof in regard to proceedings formerly had therein by one of the parties to the proceed-
ings now before it." Dimmick v. Tompkins, 194 U S 540, 548; Freshman v. Atkins,
269 U. S. 121; National Fire Insurance Company v Thompson, 281 U. S 331; Bienvillc
MISSION OIL COMPANY 1221
in the prior case, as tending to show the Respondents' discriminatory treat-
ment of one of the four persons discharged in March 1949, and what might
befall Loveless if he did not forsake the Union.
Superintendent Wickliffe testified that at about 9: 30 in the evening of
,October 26, 1949, he and James King, a friend of the former, drove to the
Respondents' oil field in order to inspect the wells ; that when he reached the
doghouse, a little shack where the men change clothes, lounge about and write
their daily reports, the following ensued :
I got out of the car, went to the doghouse and opened the door; and
I let the door slam very hard because when he (Loveless) wasn't in the
doghouse I knew where he was. But I let the door slam very hard to
the doghouse. I thought perhaps it would wake him up. I went around
and went to the door on the driver's side and shook the car.
Before I get to that-I will lead up to it-he had his head lying right on
the seat, his mouth wide open, his eyes were closed. I shook the car a
couple of times before he woke up. He lowered the window and I asked
him how everything was going. I didn't reprimand him at that time. I
didn't think it would do any good anyhow. He was only about half awake.
Wickliffe further testified that after Loveless informed him that everything
was in order, he drove away ; that the following day, he looked up Loveless, who
was in town, and that the following conversation then took place between him
and Loveless :
I said, "Junior, you know I found you asleep in the pickup last night."
He said, "Yes." [I said]
"I'm going to have to let you go. You know that is against the policy
of the company, particularly to sleep at that time of day" . . e
"A man should get also enough sleep at home without having to sleep on
afternoon tour."
He said, "Well, I guess you just want to let me go anyhow."
I said, "No, that is against my religion." That I didn't like to let anybody
go without a good reason.
Those are the very words I told him.
He said, "Well, O. K."
Wickliffe further testified that before informing Loveless of his discharge,
he spoke to Long who "more or less" instructed him to discharge Loveless.
On cross-examination, Wickliffe testified that he did not discuss the Loveless
sleeping incident of October 26, with King while the two were driving back to
town that evening ; that the decision to discharge Loveless "was more or less
up to both" him and Long, with the former making the final decision ; that Long
did not "exactly" tell him to discharge Loveless ; and that after he had decided
to discharge Loveless he informed Long of his plan.
Water Supply Co. v. Mobile, 186 U. S. 212; Administrative Procedure in Government
Agencies, Report of the Committee on Administrative Procedure appointed by the Attorney
General, Senate Document No. 8, 77th Cong. 1st Session P. 71, 399-400. And this is
particularly so because the matters which the undersigned is taking notice, namely
Respondents' attitude of hostility to the Union, as evidenced by their prior acts of
interference, restraint, coercion and discrimination, are all relevant to the issues involved
in the instant case.
6 Long testified that the Respondents did not care particularly if the men slept while
on the night shift (11: 30 p. m. to 7 a. m.), but they were extremely perturbed when
they found any employee asleep on any other shift. In fact, Long. Wickliffe, and other
witnesses for the Respondents testified that no employee was ever reprimanded when
found asleep on the night shift.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, when confronted with the affidavit given to a field examiner of the
Board, sworn to December 19, 1949, wherein he stated in part, "I personally
and exclusively made the decision to discharge R. W. Loveless, Jr. the night of
October 26, 1949. I did not consult or confer or receive any instructions or
advice on the matter from Harry C. Long or anyone else," Wickliffe testified
that he "may have" or "did call" Long on the telephone regarding the incident
but added that he could not recall "what he did tell me"; that he thought the
statement in the aforesaid affidavit that after leaving Loveless on the evening
of October 26, he "then got back into my car and drove away with Ed King.
Both King and I said to each other that it was damn funny that a man who
had all morning and evening to sleep should sleep in the evening on the job.
King said to me that he definitely saw Junior asleep in the pickup, that it was
an awfully strange position to be in if he was not asleep," was correct and that
his previous testimony to the effect that he had not spoken to King on their way
back to town regarding Loveless was incorrect.
King testified on direct examination that he drove to the Respondents' oil fields
with Wickliffe on the evening of October 26; that upon arriving there, Wickliffe
got out of the car, went to the doghouse and upon seeing no one therein, walked
toward the parked pickup truck; and that he did not notice Loveless in the
truck prior to the time that Wickliffe "took hold of the door handle. Then I
saw Junior in the truck. Now, whether he was laying down or not, I couldn't
say" ; and that when he saw Loveless, the latter was sitting in an upright posi-
tion.
On cross-examination by the General Counsel, King testified that Wickliffe and
Loveless conversed together about 3 to 5 minutes; that throughout the entire
incident he remained in Wickliffe's car which was parked about 30 feet from
the pickup truck ; and that on the way back to town that evening neither he nor
Wickliffe discussed the Loveless incident, but confined their conversation to other
matters.
Long testified that Wickliffe gives him a daily report by telephone every morn-
ing at about 7: 30: that on October 27, Wickliffe included in his report that he had
found Loveless asleep the previous evening while on duty; that he thereupon
said to Wickliffe :
We just can't continue to put up with this. I've talked to Junior's father'
I've done about everything. We have caught him asleep. He is not taking
care of his job. He gets out a mile away from our lease, from the nearest
well with the company car and gets stuck in the mud. We have to send
trouble men out there on company time to pull him out. We just can't con-
tinue to put up with that.
So I told Mr. Wickliffe, "I will call Mr. Hedges ° and see, so we will know
what the Union should do about it. We will let them know what we are
going to do."
Long then testified as follows :
Q. Did you call me [Hedges] that day?
A. I called you on the 27th. I imagine it was about ten or eleven in the
morning. I told Mr. Wickliffe not to do a thing until I talked to you. And
I talked to you and I explained just exactly what happened at the period
and you said, "Well, you cannot put up with it," so I called Mr. Wickliffe
back and told him that we were just going to have to let him [Loveless] go."
* Loveless ' father had been in the Respondents ' employ for a good many years prior to
his death which occurred about 2 weeks before the,opening -of the hearing herein.
8 Respondents ' counsel.
MISSION OIL COMPANY 1223
Loveless denied that he was asleep the evening of October 26. He further
denied the various and sundry charges made about the unworkmanlike manner
in which he performed his duties while employed by the Respondents about which
Long, Wickliffe, and other Respondents' witnesses testified. Loveless emphati-
cally denied that any managerial official of the Respondents ever found him
asleep while on duty.
Loveless admitted that he occasionally visited the employees of the oil com-
panies whose properties are adjacent to the Respondents', but those occasions
were many months prior to his discharge. Although testifying that Loveless was
away from his place of work on numerous occasions, both Long and Wickliffe
admitted that neither of them reprimanded Loveless for this infraction nor
thought to discharge him for so doing. While complaining about Loveless' poor
workmanship, Long admitted that Wickliffe hired Loveless as a pumper or
roustabout for a concern for whom Wickliffe was also superintendent. More-
over, the record clearly shows that other employees, while on duty, with the
knowledge of the Respondents, frequented the oil fields of the nearby com-
panies.
Loveless impressed the undersigned as a forthright and honest witness. Neither
Long nor Wickliffe so impressed the undersigned. Not only do their testimonies
conflict, with respect to material matters, with each other, but the testimony of
each is replete with self-contradictory statements. Under the circumstances, the
undersigned finds Loveless' account of what took place orl the evening of Octo-
ber 26, 1949, to be substantially in accord with the facts. The undersigned
also finds that Loveless was not asleep while on duty on October 26.
Upon the entire record in the instant case the undersigned is convinced, and
finds, that Loveless was discharged by the Respondents on October 27, 1949,
because of his union membership and activities and because he testified adversely
to the Respondents shortly before his discharge in violation of Section 8 (a) (3)
and (4) of the Act, thereby violating Section 8 (a) (1) thereof.
As found above, Loveless testified on October 11, and was discharged on October
27. Viewed against the antiunion background of the Respondents, as found by
the Board in the prior proceeding, his discharge within 16 days after testifying
and within 6 months of the discriminatory discharges of *four other employees
becomes more than a mere coincidence. This finding is buttressed by the undenied
and credible testimony of Loveless that on October 10, 1949, in response to his re-
quest for permission to attend the hearing in the prior proceedings, Wickliffe
said, to quote Loveless, "I would be better off to leave it alone " Moreover, Long
clearly showed that he was displeased -because Loveless testified adversely to,
the Respondents when Long admitted on the witness stand that he "had nothing
to do with Mr. Loveless at all after they went to that hearing and said I coerced
against them."
The Respondents offered certain testimony to the effect that Loveless did not
attend to his duties in a proper manner, that while on duty he left the grounds
of the Respondents without permission, and that he fell asleep while driving a
truck and damaged it. It would serve no useful purpose to discuss here at
length the conflicts in testimony with respect to these incidents for, on consid-
eration of the entire testimony, the undersigned is convinced that these matters
were adduced by the Respondents at the hearing for the sole purpose of becloud-
ing the issues and constituted no actual motivating cause in the Respondents'
decision to discharge Loveless.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, and each of them, set forth, in Section III
above, occurring in connection with the operations of the Respondents described
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Section I 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 each of the Respondents has engaged in unfair labor prac-
tices, the undersigned will recommend that each of them cease and desist there-
from and take certain affirmative action which the undersigned finds is required
to effectuate the policies of the Act.
Having found that each Respondent has discriminated in regard to the hire
and tenure of employment of Robert W. Loveless, Jr, by discharging him on
October 27, 1949, because of his union and concerted activities, it will be recom-
mended that each Respondent offer him immediate and full reinstatement to
his former or substantially equivalent position 0 without prejudice to his seniority
and other rights and privileges and make him whole for any loss of pay he may
have suffered by reason of the Respondents' discrimination against him, by pay-
ment to him of a sum of money equal to the amount he normally would have
earned as wages from the date of his discharge to the date of the Respondents'
offer of reinstatement, less his net earnings during the said period.10 Loss of pay
shall be paid in accordance with the formula enunciated in F. W. Woolworth,
90 NLRB 289.
Having found that the Respondents, and each of them, interfered with, re-
strained, and coerced their employees in the exercise of the rights guaranteed
in Section 7 of the Act, by discriminating in regard to the hire and tenure of
employment of Robert W. Loveless, Jr, because of his union affiliation and activi-
ties and because he gave testimony in a prior proceeding under the Act, it will
be recommended that the Respondents, and each of them, cease and desist from
in any manner interfering with, restraining, and coercing their employees in the
exercise of the rights guaranteed them by the Act 11
Upon the basis of the foregoing findings of fact, and upon the entire record in
the instant case, the undersigned,makes the following :
CONCLUSIONS OF LAW
1. Oil Workers International Union, affiliated with the Congress of Industrial
Organizations, is a labor organization, within the meaning of Section 2 (5) of the
Act.
2 By discriminating in regard to the hire and tenure of employment of Robert
W. Loveless, Jr., thereby discouraging membership in a labor organization, the
Respondents have engaged in, and are engaging in, unfair labor practices, within
the meaning of Section 8 (a) (3) of the Act,
3. By discharging and otherwise discriminating against Robert W. Loveless,
Jr., because he had given testimony under the Act the Respondents have engaged
in unfair labor practices, within the meaning of Section 8 (a) (4) of the Act.
4. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the Respondents have en-
gaged in, and are 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
commerce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
6 The Chase National Bank of the City of New York, San Juan , Puerto Rico Branch,
165 NLRB 827.
10 Crossett Lumber Co, 8 NLRB 440.
May Department Stores, 326 U. S. 376.