Kallaher and Mee, Inc.

National Labor Relations Board - Board Decisions

Dec 7, 1949

87 N.L.R.B. 410 (N.L.R.B. 1949)

In the Matter of KALLAHER AND MEE, INC. and OIL WORKERS INTERNA-
TIONAL UNION LOCAL 366, CIO
Case No.1-CA-41.Decided December 7,1949
DECISION
AND
ORDER
On March 11, 1949, Trial Examiner Martin S. Bennett issued his
Intermediate Report in this case, finding that the Respondent had
engaged 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 Intermediate Report attached hereto. The
Trial Examiner also recommended that the complaint be dismissed
insofar as it alleged that the Respondent had engaged in certain other
unfair labor practices. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
The Board 1 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 Interme-
diate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following modifications and
additions :
1. The Trial Examiner found no independent violation of Section
8 (a) (1) in the conduct of various officials of the Respondent, as set
forth in the Intermediate Report. We agree with these findings, ex-
cept for the instances of interrogation by Manager Rieley of employees
Allard Morel, Rabbit, and Everly concerning their union sympathies
or membership.2 Accepting Rieley's testimony that he openly stated
his neutrality toward the union, we find that his statements did not
1 Pursuant to the provisions of Section 3 (b) of the Act , as amended , the National Labor
Relations Board has delegated its powers in connection with this proceeding to a three-
member panel [Chairman Herzog and Members Houston and Murdock].
2 Although no exceptions were filed to the Trial Examiner ' s failure to find independent
violations of Section 8 (a) (1), the matter was thoroughly litigated and we rely solely
upon the findings made by the Trial Examiner . See International Rice Milling , 84 NLRB
360; N. L, R. B. v. Oregon Worsted Co., 94 F. 2d 671, 672 (C. A. 9) ; Western Electric Co.
v. N. L. R . B., 147 F. 2d 519 ( C. A. 4), cert . den. 324 U. S. 870.
87 NLRB No. 61.
410
KALLAHER AND MEE, INC. 411
mitigate the interference inherent in interrogation.3 We cannot agree
with the Trial Examiner that the instances of interrogation here fall
within the rule of those cases in which the Board has held that such
conduct, if standing alone and limited to one or two incidents on the
part of secondary management officials, does not warrant an order by
the Board .4
We therefore find that the Respondent violated Section 8 (a) (1)
by these acts of interrogation.
2. Like the Trial Examiner, we find that the discharges of Everly,
O'Connor, and Rabbit on January 13, 1948, were not violative of Sec-
tion 8 (a) (3). In our view, the record will not support a finding of
discriminatory motive with respect to these discharges, but instead
establishes that these discharges were motivated by a belief that the
employees involved were guilty of falsifying time records.' In reach-
ing this conclusion, however, we, unlike the Trial Examiner, place no
reliance on the timing of the discharges, the alleged lack of knowledge
of the dischargees' union activities, or the failure to discharge all
union adherents .a
3. The Trial Examiner found, and we agree, that during the strike
the Respondent unlawfully discharged Morel, Metivier, Bouley, and
Dooley because of their concerted activity, when on January 16, 1948,
he sent them letters stating that he assumed from their absence on
January 15, 1948, that they had resigned on January 14, and enclosing
checks designated as "wages due up to and including the date of your
discharge...."'
The Respondent admits that it discharged these employees, but
attempts to justify this action on the ground that the strike violated
Section 8 (b) (6) of the Act and was, therefore, unprotected concerted
action. The strike was called to induce the employer to reinstate as
employees the individuals who had earlier been discharged on January
" See Standard-Coosa-Thatcher Co., 85 NLRB 1358 ; Craddock Shoe Corporation, 82
NLRB 161; The Linde Air Products Company, 86 NLRB 1333.
Cf. Goldblatt Bros., Inc., 77 NLRB 1262, 1264; Opelika Textile Mills, Inc., 81 NLRB 594.
We find no merit in the Respondent's exception to the Trial Examiner's failure to
find that they had actually falsified the records. The Respondent's belief to that effect
was, under the circumstances, sufficient warrant for its action. See The Pure Oil Company,
75 NLRB 539, 542.
6 Contrary to the Trial Examiner's assertions, the time chosen for the discharge is
not necessarily determinative of the nature of the discharge (N. L. R. B. v. Vincennes
Steel Corp., 117 F. 2d 169 (C. A. 7) ) ; an employer's knowledge of the union membership
of a dischargee may be inferred from the small size of a plant when other evidence is
lacking (Quest-Shon Mark Brassiere Co., 80 NLRB 1149; N. L. R. B. v. Link-Belt Co.,
311 U. S. 584, 603) ; and no inference of innocence may be derived from the fact that
an employer did not discharge all employees who were members of a labor organization
(Duro Test Corp., 81 NLRB 976; N. L. R. B. v. Pennsylvania Greyhound Lines, 303
U. S. 261).
'Home Beneficial Life Ins. Co, v. N. L. R. B., 159 F. 2d 280, 289 (C. A. 4), cert.
den. 332 U. S. 758. Contrast the letters involved in Anchor Rome Mills, Inc., 86 NLRB
1120; Kansas Milling Company, 86 NLRB 925, and cases therein cited.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
13, a purpose wholly unrelated to the type of exaction for work "not
performed or not to be performed" proscribed in Section 8 (b) (6) .8
The Board has generally recognized that a strike to protest a non-
discriminatory discharge is protected concerted activity. When, as
here, the strikers believed the discharges were discriminatory, we have
further held that it may reasonably be assumed that the strikers acted
on their own behalf, anticipating similar reprisals against themselves .9
The Respondent further contends that the discharges were privi-
leged, even if the strike be protected, because the economic strikers
had been permanently replaced by the time their discharges became
effective, and the letters must therefore be regarded as merely record-
ing the change in the status of the strikers which took effect upon the
hiring of their replacements. The Respondent contends that even if
it had not replaced the strikers when it sent the letters, it had done so
by the time the letters were received.10 It contends that the Trial
Examiner erred in finding that the letters constituted discharges ef-
fective when mailed, arguing that, under contract law, the discharge
of an employee is not effective until communicated.- We find no merit
in this contention. We agree with the Trial Examiner in holding that
the discharges were effective on January 16, 1948, when the Respond-
ent acted, rather than at the later dates on which the strikers received
the notices of discharge n
8 See the discussion of this section contained in International Typographical Union,
et at., 86 NLRB 951.
0 Container Manufacturing Co., 75 NLRB 1082, 1085, enfd. as modified (on other grounds)
I. Sam V. N. L. R. B., 171 F. 2d 769 (C. A. 7) ; Myers Products Corp., 84 NLRB 82;
National New York Packing & Shipping Co., Inc., 1 NLRB 1009, 1017, 1018, enfd. 86
F. 2d 98 (C. A. 2). The present facts are clearly distinguishable from those in Fontaine
Converting Works, Inc., 77 NLRB 1386, where the Board found that the employees in
question walked out, "not to advance their own interests, but merely to further the
interests of their foreman who . . . was demoted."
10 The new employees hired before the 16th were assigned to the jobs regularly per-
formed by dischargees O'Connor, Everly, and Rabbit. Accordingly, we do not credit the
Respondent's assertion that it had replaced the strikers by them. We assume the truth
of the Respondent's assertion that the four strikers were permanently replaced between
January 16, 1948, when the letters of discharge were mailed, and the dates on which
they received the letters.
11 Fafnir Bearing Co., 73 NLRB 1008, 1014-1015 (discharge dated from time Employer
removed cards from rack, although employees learned of removal later) ; Industrial
Cotton Mills Company, Inc., 50 NLRB 855, 869 (discharges dated from time Employer
sent notices, not time received) ; Gulf Public Service Co., 18 NLRB 562, 586, 578
(discharges dated from time names were removed from pay roll, not from time employees
were informed of removal) ; and see Hamilton-Brown Shoe Company, 9 NLRB 1073
(discharges dated from time notice was posted, not from time employees learned of
notice). We are not here concerned with the effect to be given such action by an
employer who changes his position after taking such action and before the employees
learn of the earlier act. In such a situation, the Board has followed the rule the
Respondent advocates. General Motors Corporation, 67 NLRB 965 (removal of names
from pay roll held not to constitute a discharge when uncommunicated to strikers).
We note further that, as we have found that the strikers were discharged before they
had been replaced, we are not called upon to rule on the question of whether, after
they had been replaced, the Respondent could have legally discharged the economic
strikers for the reason that they had engaged in the strike.
KALLAHER AND MEE, INC. 413
Under these circumstances, we find, as did the Trial Examiner, that
the four strikers were discharged in violation of Section 8 (a) .(3)
and 8 (a) (1) of the Act.
The Remedy
The discharge of employees because they engaged in concerted
activity protected by Section 7 of the Act violates Section 8 (a) (1)
of the Act. Because such discharge amounts to a discrimination in
hire and tenure of employment, thereby discouraging membership
in a labor organization, it also violates Section 8 (a) (3). Moreover
whether the discharges be regarded as a violation of Section 8 (a)
(1) or of Section 8 (a) (3), we find that it is necessary to order rein-
statement with back pay, as hereinafter provided, in order to effectuate
the policies of the Act 12
The Trial Examiner followed Massey Gin and Machine Works, 78
NLRB 139, and recommended that the discharged strikers be awarded
back pay from January 27, 1948, when they unconditionally requested
reinstatement rather than from the date of their discriminatory dis-
charges, on the theory that the loss of wages could not conclusively
be attributed to the discharge until the employees had indicated their
willingness to abandon the economic strike. Under the circumstances
present here, we shall adopt this recommendation.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the Board hereby
orders that Respondent Kallaher and Mee, Inc., Pawtucket, Rhode
Island, its officials, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Interrogating its employees concerning their union affiliations,
activities, or sympathies, or those of their coworkers;
(b) Discouraging membership in Oil Workers International Union
Local 366, CIO, or any other labor organization of its employees be-
cause they engage in collective or concerted activity, or by discriminat-
ing in any other manner in regard to their hire or tenure of employ-
ment or any term or condition of their employment;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Oil Workers International Union
Local 366, CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other
12 The Sandy Hill Iron & Brass Works, 55 NLRB 1.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mutual aid or protection, and to refrain from any or all of such activi-
ties except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to the employees named in Appendix A, attached hereto,
immediate and full reinstatement to their former or substantially
equivalent positions,13 and make them whole 14 for any loss of wages
suffered as a result of the discrimination against them, in the manner
described in the remedy section above;
(b) Post immediately at its offices and place of business in Paw-
tucket, Rhode Island, copies of the notice attached hereto and marked
Appendix A.15 Copies of said notice, to be furnished by the Regional
Director for the First Region, shall, after being duly signed by Re-
spondent's representative, be posted by Respondent immediately upon
receipt thereof and maintained by it for sixty (60) consecutive days
in conspicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material ;
(c) Notify the Regional Director for the First Region in writing,
within twenty (20) days from the date of receipt of this Order what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges other
violations of the Act, be, and it hereby is, dismissed.
APPENDIX A
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 :
TVE WILL NOT interrogate any employees concerning their. union
affiliations, activities or sympathies, or those of their coworkers,
or in any manner interfere with, restrain, or coerce our employees
13 In accordance with the Board ' s consistent interpretation of the term , the expression
"former or substantially equivalent position " is intended to mean "former position wherever
possible , but if such position is no longer in existence , then to a substantially equivalent
position." See The Chase National Bank of the City of New York, San,Juan, Puerto Rico,
Branch, 65 NLRB 827.
14 See Crossett Lumber Co., 8 NLRB 440.
15 In the event that this Order is enforced by a decree of a Court of Appeals , there shall
be inserted before the words, "A DECISION AND ORDER " the words , "A DECREE OF
THE UNITED STATES COURT OF APPEALS ENFORCING."
KALLAHER AND TEE, INC. 415
in the exercise of their right to self-organization, to form labor
organizations, to join or assist OIL WORKERS INTERNATIONAL
UNION LOCAL 366, CIO, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, 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 by
Section 8 (a) (3) of the amended Act.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss.
of pay suffered as a result of the discrimination as set forth in the.,
Decision and Order :
Oscar Morel Sidney Dooley
Armand Metivier Henry Bouley
All our employees are free to become or remain members of the
above-named union or any other labor organization except to the
extent that this right may be affected by an agreement in conformity
with Section 8 (a) (3) of the amended Act. We will not discriminate
in regard to hire or tenure of employment or any term or condition
of employment against any employee because of membership in or
activity on behalf of any such labor organization.
KALLAHER AND MEE, INC.,
Employer.
By--------------=--------------
(Representative ) ( Title)
Dated-----------------------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Leo J. Halloran, for the General Counsel.
Mr. William R. Neilson, of New York, N. Y., for the Union.
Messrs. Albert J. Hoban and J. Clifden O'Reilly, of Providence , R. I., for
Respondent.
STATEMENT OF THE CASE
Upon charges duly filed on January 14 and February 2, 1948, by Oil Workers
International Union Local 366, C. I. 0., herein called the Union, the General
Counsel of the National Labor Relations Board, herein referred to as the General
Counsel and the Board respectively, by the Regional Director for the First Region
(Boston, Massachusetts), issued a complaint dated October 18, 1948, against
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kallaher and Mee, Inc., of Providence, Rhode Island, herein called Respondent,
alleging that Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3)
and Section 2 (6) and (7) of the National Labor Relations Act as amended, 61
Stat. 136, herein called the Act. Copies of the charges, the complaint, and
notice of hearing thereon were duly served upon the parties.
With respect to the unfair labor practices, the complaint alleged in substance
that Respondent: (1) discharged Chester Everly, Francis O'Connor, and Thomas
Rabbit on or about January 13, 1948, and Henry Bouley, Sidney Dooley, Armand
Metivier, and Oscar Morel on or about January 14, 1948, because of their union
or concerted activities; and (2) on or about March 9, 1947, and continuing there-
after to the date of issuance of the complaint, engaged in certain acts of inter-
ference, restraint, and coercion. On or about October 28, 1948, Respondent filed
an answer wherein it alleged that the seven employees named in the complaint
had been discharged for cause and further denied the commission of any unfair
labor practices.
Pursuant to notice, a hearing was held from November 22 to November 24
and from November 29 to December 2, 1948, at Providence, Rhode Island, before
the undersigned Trial Examiner, Martin S. Bennett,;duly designated by the Chief
Trial Examiner. The General Counsel and Respondent were represented by
counsel, the Union by its representative, and all participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issue was afforded all parties. At the outset of the
hearing, the undersigned denied motions by Respondent to dismiss the complaint
on the ground that it failed to state that the union was in compliance with
the provisions of Section 9 (f), (g), and (h) of the Act, and that the General
Counsel had failed to adduce affirmative proof of compliance by the Union with
said provisions. The undersigned also denied motions by Respondent to strike
from the complaint all allegations of unfair labor practices occurring prior to
August 22, 1947, on the ground that the 1947 amendments to the Act made no
provision for the saving of cases alleging the occurrence of unfair labor practices
prior to that date, the effective date of the amendments to the Act. See N. P.
Nelson Iron Works, Inc., 80 NLRB 788. Respondent further moved that the case
of alleged unfair labor practices arising prior to the effective date of the Act be
severed from that based on acts occurring after such (late on the ground that the
law of evidence differed in its application to the two periods. The motion was
denied and the undersigned announced that the Federal Rules of Civil Procedure
would be applicable to evidence adduced with respect to both periods of time.
During the hearing, the undersigned granted a motion by Respondent that a
view be taken of its premises and a view was duly taken. At the conclusion of
the General Counsel's case, Respondent moved that the complaint be dismissed
on the ground that the General Counsel had not made out a prima facie case.
The motion was denied. At the close of the hearing the undersigned granted a
motion by the General Counsel to conform the pleadings to the proof purely with
respect to formal matters. The parties were then afforded an opportunity to
argue orally before the undersigned and to file briefs and/or proposed findings
of fact and conclusions of law. Oral argument was waived by the parties, and,
subsequent to the close of the hearing, briefs were received from the General
Counsel and Respondent.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
KALLAHER AND MEE, INC.
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
417
Kallaher and Mee, Inc., is a Rhode Island corporation with its principal office
and place of business at Pawtucket, Rhode Island, where it is engaged in the pur-
chase, sale, and distribution of gasoline, kerosene, lubricating oils, fuel oils,
tires, batteries, and accessories. During the year 1947, Respondent purchased
materials and supplies valued, in excess of $750,000, of which value in excess
of 90 percent was shipped to Respondent's place of business at Pawtucket from
points outside the State of Rhode Island. During the same period, Respondent
sold fuels, oils, and accessories valued in excess of $750,000, of which value ap-
proximately 10 percent was shipped from Respondent's place of business at
Pawtucket to points outside the State of Rhode Island. The undersigned finds
that Respondent is engaged in commerce within the meaning of the Act.'
II. THE ORGANIZATION INVOLVED
Oil Workers International Union Local 366, C. I. 0., is a labor organization
affiliated with the Congress of Industrial Organizations, admitting to mem-
bership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The discharge of Everty, O'Connor, and Rabbit on January 13, 1948
1. Background ; the nature of Respondent's business
Respondent's business is a small one as distributor of fuel and lubricating
oils which involves primarily the picking up of fuels and oils by trailer trucks
in Braintree, Massachusetts, their transportation over the highways, storage in
Respondent's tanks at Pawtucket, Rhode Island, and their ultimate sale and
delivery by Respondent's trucks to filling stations, farms, and other large users
of fuels and oils. Prior to January 1948, these fuels were stored at tanks leased
by Respondent a't a coal yard in Pawtucket owned and operated by the Kallaher
Coal Company. In the latter part of December 1947, Respondent moved its
Pawtucket office to another location known as the State Pier, but at least part
of the fuels handled by Respondent continued to be stored at the tanks leased
at the Kallaher Coal Company premises in Pawtucket.
Respondent's business operations are conducted by John Rieley who is its
vice president and manager. In December 1947, Rieley promoted Michael Morley,
Jr., who theretofore had been a dispatcher and warehouseman, to the position
of office manager. This latter position was admittedly a supervisory one unlike
Morley's former position which was not. In December, Rieley also transferred
' The record indicates that all of the stock of Respondent has been owned by the Cities
Service Oil Company of Pennsylvania since October 1, 1946, and that on or about August
1, 1948, the assets of Respondent were distributed to its sole stockholder. On the latter
date, Respondent privately commenced the conduct of its business tinder the name of
"Kallaher and Mee Company, Division of Cities Service Oil Company." Publicly, however,
the business is still conducted under its original name which still appears on Respondent's
fleet of oil trucks, although a public change of Respondent's name is contemplated. Signifi-
cantly, as of the dates of the hearing herein, no steps had been taken with respect to the
dissolution of Respondent. The record further indicates that there are a number of indi-
viduals who occupy interlocking offices in both Respondent and the Cities Service Oil
Company of Pennsylvania, and that some of them in their official capacities have full
knowledge of the instant proceeding.
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William Blais, a truck driver, to the position of warehouseman, thus taking over
some of the duties formerly performed by Morley. As found hereinafter, Blais
position of warehouseman was not a supervisory one. In addition to the above,
Respondent employed during the period herein material, seven truck drivers whose
discharge is the basic issue herein. Also employed were a repairman who was
also a spare driver, a night watchman, salesman, and several office clericals.
2. The union campaign
There is no evidence of any . union organizational action among Respondent's
employees prior to the campaign commenced by the Union in April 1947. On or
about April 19, 1947 , the Union requested recognition of Respondent and filed a
petition for certification of representatives on May 5, 1947, in Case No. 1-R-3779,
as a result of which a hearing was held on August 8, 1947. A decision directing
the holding of an election was not issued until January 14, 1948 , the day following
the discharges on January 13 of Everly , O'Connor , and Rabbit , and on January
27, the election was indefinitely postponed as a result of the filing of the original
charge in this proceeding.
During the course of the organizing campaign , William Blais functioned as shop
steward for the Union , although in the fall of 1947 he lost interest in the Union,
as he claimed, because of the delays in the conduct of the Board election. As a
result he withdrew from union activity and was replaced by Chester Everly in
December , at about the same time that Blais was transferred from truck -driving
to the position of warehouseman . As of January 13, all of Respondent 's truck
drivers were members of the Union.
3. The discharges of Everly, O'Connor, and Rabbit
Everly, O'Connor, and Rabbit entered Respondent's employ in -larch, April,
,and July, 1947, respectively, although O'Connor has previously worked for
Respondent from 1943 to 1945, at which time he was discharged. They were
trailer truck drivers who devoted most of their time to the transport of fuel
and oil from Braintree to Respondent's storage facilities in Pawtucket. Each
was a member of the Union and had joined shortly after the commencement of
his employment in 1947. Of Respondent's four other drivers, Oscar Morel and
Armand Metivier also drove trailer trucks on this run although they generally
worked during the evening and early morning. The two remaining drivers, Henry
Bouley and Sidney Dooley, generally drove smaller trucks for local fuel and
gasoline deliveries.
At the close of the day, each driver submitted a daily report which itemized
the trips made that day. As early as September 1947, when Oscar -Morel was
hired, Respondent's vice president and manager, John Rieley, informed him that
he questioned the amount of time recorded by his drivers on the Braintree run
which was a round trip of approximately 80 miles.. Rieley stated that the men,
who were the three discharged on January 13, Everly, O'Connor, and Rabbit,
were averaging 5 hours per trip and that this was too long. There is evidence
that Rieley who periodically inspected the report sheets was disturbed over the
similarity of time taken by drivers on a particular trip. He had discussed this
with his subordinate Morley and came to the conclusion that the men were
slowing down on their trips so as to increase their hours and hourly earnings.
There is also evidence that in December 1947, Rieley revised the method of re-
porting and instructed the drivers to put down on their report sheets the time
of departure and return from a particular trip, rather than the elapsed time
KALLAHER AND MEEK INC. 419
of the trip as had been the practice. It also appears that this new instruction
by Rieley was not communicated to all of the drivers and that in some instances
it was not followed.
Several incidents took place on January 12 and 13, 1948, which brought to a
head Rieley's belief that his drivers were deliberately slowing down and wasting
time while on the job. On January 12, Rieley noticed a daily report by Morel,
made several days earlier, in which Morel listed a time of 3 hours and 15 minutes
for each of three round trips made to a terminal in East Providence. Although
these three trips were made at different times of the day and on one of them
the point of origin was different from that of the other two, Rieley asked Morel
on January 12 to explain why each of the three trips took the same time, in view
of the different circumstances surrounding them. Morel gave no explanation
of why the time of the trips had not varied, but replied instead that on one trip
the truck radiator had frozen, on the second he had stopped to eat lunch, and
that during the third period Rieley had spoken to him for one-half hour. Rieley
immediately informed Morel that he wanted him to put down the exact minute
of arrival and departure time, to abandon his practice of putting down the nearest
quarter hour, and that the other men were to do likewise. William Blais, the
warehouseman, was in the room at the time and Rieley instructed him to so
inform the other drivers.
Morel left the room and some minutes later held a conversation in the boiler
room with Armand Metivier who also drove a trailer truck. Blais entered the
room during the conversation and overheard Morel state, as Blais testified, "to
hell with O'Connor and Rabbit. I am going to put down my exact times." On
the following morning, January 13, Blais reported this conversation to Office
Manager Morley, and Morley then informed Rieley of what he had heard. Rieley
summoned Blais to the office and confirmed the story.'
Rieley testified that several weeks earlier he had been informed that Thomas
Rabbit had stated after depositing a load of oil at the tank at the Kallaher Coal
Yard that he had an "hour to kill" before returning to the office. Rieley ques-
tioned Blais concerning this and Blais admitted that he had overheard this
statement by Rabbit, whereupon Rieley immediately instructed Morley to have
all the drivers present in his office at 4 p. m.
That afternoon all of the drivers except Bouley and Dooley whose absence is
not explained in the record, appeared at Rieley's office together with Morley
and Blais. Rieley announced that he did not know at the moment which, if
any, of the drivers were still in his employ, but that he would know by the end
of the meeting depending on whether or not the truth was told. He then asked
if any driver had instructed another driver how much time to put down for a
trip. There was no reply and Rieley repeated the question. Morel spoke up and
said, as he testified, "the boys didn't tell me how much hours to take definitely
but they told me approximately about how much time to take." Rieley asked
who had said this and Morel replied, "not one man, there was three or four of
us talking together." Everly spoke up at this point and admitted, according to
Morel, that lie had mentioned it to Morel, but that he was not the only one who
had done so; that he, Rabbit, and O'Connor had told Morel approximately how
long a trip should take ; and that "they always took about the same time and
2 This finding is based upon the testimony of Blais, Morley, and Rieley which is in sub-
stantial agreement. Metivier had no recollection of this conversation with Morel. Morel
first denied any recollection of this conversation with Metivier but then admitted that on
this occasion he told Metivier that he intended thereafter to put down the exact time on
his daily reports.
877359-50-vol. 87-28
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it would be fair." Rieley immediately told Everly that he was discharged
and turned to O'Connor and said "you are fired too."
Rieley then asked if anyone in the room while at the Kallaher Coal Yard had
stated that he had an hour to waste before returning to the office. There was
no reply and after Rieley had repeated the question there was still no reply.
Rieley turned to Blais and asked him if anyone had said that to him, and Blais
named Rabbit as the speaker. Rieley asked Rabbit if he had made the statement
and Rabbit replied that he did not recall so doing. Rieley repeated the question,
received the same answer, and thereupon also discharged Rabbit. Morel spoke
up at this point and stated that Rieley should "smarten up and put some clocks
in here" if he did not trust the men. He further announced that he was
quitting in view of what he considered to be unjust treatment of the drivers. He
reconsidered after several minutes, however, and he and Metivier were informed
by Rieley that they would thereafter be his two "top men." On the following
day Respondent apparently adopted Morel's suggestion because Rieley arranged
to install a type of time clock known as a tachograph on its trucks and in addition
decided that thereafter all truck drivers would punch a time clock at the plant
office.
Conclusions
Immediately apparent herein is the fact that the alleged discriminatory dis-
charges took place many months after April 19, 1947, the date the Union first
requested recognition of Respondent, more than 5 months after the representa-
tion hearing in August 1947, and at a time when union activity was not particu-
larly strong.' In addition there is no direct evidence to establish that the Re-
spondent had knowledge of the union activities of Everly and Rabbit, two of
the three discharged on January 13, although Morley did have cause to believe
that O'Connor was a member of the Union. On the contrary both Morel and
Bouley who were not discharged on January 13, although Bouley was not present,
had previously volunteered to Rieley the information that they had signed cards
in the Union, and, as appears below, Morel actually quit his employ on January
13, after the three discharges, but reconsidered and his request for reinstatement
was granted by Rieley. This reinstatement of Morel by Rieley'hardly appears
to be the act of an employer bent upon elimination of union members from its
plant. Although Rieley's treatment of the three discharges was not of a tem-
perate nature, it was entirely consistent with his previous treatment of his
employees which the record reveals to have been of a forceful and tempestuous
nature. The record does show that Rieley was of the belief for some time that
his drivers had been stealing time from the company and his conduct on January
13 would appear to be consistent with such a belief on his part, particularly in
view of the quasi-admissions made by Everly on January 13 implicating O'Connor
and Rabbit as well as Rieley's knowledge of Morel's statement of the previous
day which also implicated O'Connor and Rabbit. Consistent with such a belief
was the adoption by Rieley of Morel's advice to install time clocks, which Rieley
took steps to install on the following day, January 14.
Noteworthy too is an earlier occasion when Rieley was of the belief that Rabbit
lied to him when he claimed ignorance of the circumstances under which his
truck had been damaged. On that occasion Rieley told Rabbit, as the latter
testified, "I don't like a liar, and I will forgive you this time, but if I catch
you in another lie I will fire you." Obviously and not illogically Rieley con-
3 For example, Rabbit testified that he wore a union button for 2 days after joining the
Union but lost and never replaced it.
KALLAHER AND MEE, INC. 421
sidered Rabbit's failure to recollect the statement attributed to him of having
an hour to kill in the nature of an admission that he had made such a statement.
In the case of O'Connor, who had been discharged for drunkenness in 1945,
rehired in 1947 and warned against any further drunkenness on penalty of dis-
charge, the General Counsel relies on a statement allegedly made to O'Connor
in August 1947 by Rieley. On that occasion O'Connor on his day off apparently
drank to excess in a bar frequented by Respondent's drivers, the rear room of
which was also used for union meetings, and uttered some gossip to other
drivers concerning certain aspects of Respondent's business operations not
material herein. Rieley admitted that this came to his attention and that he
cursed and reprimanded O'Connor in extremely strong language. According to
Rieley he told O'Connor that he wished to discharge him for his conduct but
had been advised by his attorney not to do so during the pendency of the "labor
situation" and that he further had in mind his high regard for O'Connor's wife
and two children. Rieley further informed O'Connor that the next time he became
drunk he would be discharged "union or no union." According to
O'Connor, Rieley on this occasion threatened to sell all his trucks rather than pay
union wages and said, "I would fire you this very minute only I don't want trouble
with the Union." Inasmuch as O'Connor was admittedly intoxicated on the
occasion for which he was reprimanded and had been warned against such con-
duct by Rieley, Rieley's version of the incident appears to be more likely and
is credited.
The union activities of the three men were not outstanding although Everly
was then a newly selected, but relatively inactive, shop steward. There was
testimony by Morel and Bouley attributing to maintenance man Blais the state-
ment that his first task as foreman was to find something on O'C'onnor who was
"on the way out." This,was denied by Blais. The undersigned deems it unnec-
essary to resolve this conflict because first, Blais was not made a supervisor,
and second, even if credited, this testimony by the witnesses by the General
Counsel would be insufficient to overcome the preponderance of the testimony set
forth above.
In view of the foregoing findings the undersigned finds that upon a prepon-
derance of the evidence the record does not support the allegations of the com-
plaint with respect to the discharges of Everly, O'Connor, and Rabbit. It is
accordingly recommended that their cases be dismissed.'
B. The strike of January 15 and the resulting discharges on January 16
1. The facts
The three truck drivers discharged on January 13, 1948, formed a picket line
on the morning of January 14 in the vicinity of the Kallaher Coal Yard , but the
4 Cf. Minnesota Mining and Manufacturing Co., 81 NLRB 557. On January 14, the day
after the three discharges , Rieley summoned Morel and Metivier to his office and each at
his request signed separate and identical affidavits which stated:
I hereby certify that my continued employment by Kallaher and Mee is not the result
of nor has it any bearing on the fact that I admitted to Mr. Rieley that I had been told
by O'Connor and Everly, other drivers of Kallaher and Mee, to put on more time for
given trips, which time was paid for by Kallaher and Mee, than the trips actually
took . I make this statement of my own free will without coercion or intimidation
of any kind.
There was testimony by both Morel and Metivier that they did not have a full opportunity
to read the affidavit and that the affidavits introduced in evidence did not correspond to
the affidavits they had signed. In view of the circumstances of the signing of the affidavits
no reliance is placed upon these affidavits in the findings hereinabove made.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
four remaining drivers , Morel, Metivier , Bouley , and Dooley worked their regular
day. That evening all seven met with the officials of the Union. It was agreed
that the four remaining drivers would not report for work until the three dis-
charged on January 13 were reinstated . On the morning of January 15 all four
notified either Morley or Rieley of their decision and it is found that they
thereby commenced a concerted activity at this point for their mutual aid and
protection in protest of the three discharges . Rieley admitted that he informed
Dooley and Bouley over the telephone , after they announced that they were
not reporting for work until the three men were reinstated , that if they did
not report he would replace them on the trucks and, according to Bouley, and
the undersigned so finds, Rieley stated "anybody that doesn 't report for work
this morning is all clone ." It is clear , and the undersigned finds, that Rieley on
the morning of January 15 was informed of the strike.
At various times during January 15 the four drivers joined the picket line
set up on the previous day and picketing was apparently carried on at both the
Kallaher Coal Yard and in the vicinity of Respondent 's offices . Ultimately the
picketing which lasted for some weeks took place largely near Respondent's
offices.
On January 16 Rieley sent a letter to each of the four strikers which stated :
Inasmuch as you did not report for work on January 15 , 1948, and I have
received no information from you as to why you did not report, we must
assume that you resigned your position as truck driver with this Company
as of the close of business on January 14, 1948.
We are enclosing herewith check in payment of your wages up to and
including January 14 , 1948. If there is any discrepancy please advise and
we will investigate same.
Enclosed with each letter was a check which stated on its face that it was in
payment of "wages dice up to and including the date of your discharge on Janu-
ary 14, 1948." [Emphasis added.] The seven drivers continued their picketing
for some weeks until approximately January 27 when the four strikers uncondi-
tionally asked Rieley for reinstatement . He instructed them to return in a
few days which they did, and at that time Rieley informed them that their jobs
were filled.
2. Replacements
After the discharge on January 13 of Everly , O'Connor, and Rabbit, Rieley
inserted an advertisement for truck drivers in the Providence morning paper
for January 14. The testimony concerning the hiring of replacements is not
entirely clear because Morley 's testimony with respect thereto is vague on
details . It is clear , however, that on January 14, Respondent hired a driver,
Barlow, who did not appear on January 15 or thereafter. On January 15 three
drivers were hired, Thibodeau , Martel, and Banford, all of whom worked on
January 16 and for a period thereafter , save Thibodeau who resigned on January
17. No drivers were hired on January 16 although Respondent ' s maintenance
personnel and salesmen helped out on the trucks on January 16 as they did on
January 15." Replacements were hired on various later days and it appears,
and the undersigned so finds, that on January 27 when the four strikers uncon-
ditionally applied for reinstatement their jobs were filled.
5 With respect to driver Packard, Morley testified alternatively that. he was hired on
January 16 or 17, January 17 or 19, and on January 21. Morley finally elected January 17
to 19 although he was not positive. In view of this testimony the undersigned finds that
Packard was not hired until after January 16.
KALLAHER AND MEE, INC.
Conclusions
423
The General Counsel contends that the strikers were discharged on January
14, and places reliance upon the language found upon the face of the check
mailed on January 16 to the strikers which stated, " . . . wages clue up to and
including the date of your discharge on January 14, 1948 . . He apparently
relies upon a telephone call made at approximately 12: 45 a. in. on January 15 to
'William Blais by Morel announcing the strike, as a result of which Blais allegedly
stated that any driver not reporting for work on January 15 was "all done." On
the other hand, first, Respondent took no action with respect to terminating the
employment of the strikers until January 16 and secondly since, as found below,
Blais was not a'supervisory employee, this contention lacks merit despite the date
placed upon the check. The undersigned believes and finds that the date of
January 14 appearing on the check obviously refers to the last date worked
by the strikers.
It is found, however, that the letter of January 16, 1948, and the accompanying
check constituted as a matter of law a discharge of the strikers. Here the
strikers were engaged on January 15 in a concerted activity protected by Section
7 of the Act and Respondent took steps to terminate their employment. There is
absolutely no evidence that Respondent sent this letter in an attempt to tacti-
cally maneuver the strikers into returning to its employ and no such contention
was made by Respondent either at the hearing or in its brief. In fact, Re-
spondent admitted in its answer that the strikers were discharged and, accord-
ing to Manager Rieley who signed the letters sent to the strikers, "as of the
16th they were dismissed."
Respondent, however, was entitled to discharge these economic strikers if
it had first filled their position with permanent replacements. N. L. R. B. v.
Mackay Radio and Telegraph Co., 304 U. S. 333. The criterion is therefore
what was the status on January 16, 1948, of Respondent's employment roster
when it sent the letter of discharge to the strikers. Although it is Respondent's
contention that on January 16 it had permanently replaced them, the record does
not support Respondent's position herein. As found above, when Respondent
sent out the discharge letters on January 16, it had but three newly hired
drivers in its employe and there were four positions to be filled. The other four
positions were then temporarily filled by Respondent's maintenance and sales
personnel who were temporarily transferred from their normal duties and
returned thereto at a later date when Respondent did hire permanent replace-
ments. It appears further, according to the testimony of Morley, that the three
replacements in Respondent's employ on January 16, Thibodeau, Banford, and
Martel, were assigned to driving trailer trucks, the positions which had been
filled by the three drivers discharged on January 13, Everly, O'Connor, and
Rabbit. Thus, when the letters and checks of January 16 were sent to each of
the four strikers announcing the termination of their employment, the positions
previously filled by the four strikers, two by Metivier and Morel, the trailer
drivers, and two by Dooley and Bouley, the truck drivers, had not been filled
by permanent replacements.'
O This computation includes driver Thibodeau who resigned on January 17.
7 As noted above, driver Barlow who was hired and worked only on January 14, was
obviously a replacement for one of the three drivers discharged on January 13. As he did
not appear for work on January 15 or thereafter, be can in no way be considered as a replace-
ment for those who commenced the strike on January 15 and were discharged on Janu-
ary 16.
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is therefore found, as Respondent in fact contended , that on January 16:
it discharged Morel, Metivier , Dooley, and Bouley. It is further found that
they were discharged for engaging in a concerted activity protected by Section.
7 of the Act , thereby discriminating with respect to the hire and tenure of their
employment and interfering with, restraining , and coercing them in the right
to engage in concerted activities . Massey Gin and Machine Works, 78 NLRB 189-
C. Alleged interference, restraint, and coercion
The General Counsel herein relies upon conduct and statements attributedt
by various employees to William Blais and Manager John Rieley. With respect
to Blais, it is his position that Blais became a supervisory employee in December
1947, but the record does not support this contention, Blais, a truck driver-
for many years and Respondent's oldest driver in point of seniority, stated to the.
president of the Kallaher Coal Company late in 1947 that he wished to give ups
truck driving. This information was relayed to Rieley who offered Blais the-
position of warehouseman at Respondent's new offices at the State Pier. Blair.
accepted the offer and the transfer was made in December 1947, at which time.
Blais was changed from an hourly rated employee to a weekly salary of $60;.
which was somewhat less than what his hourly earnings had amounted to at the.
time because of the long hours he had theretofore put in.
As a warehouseman, Blais received and shipped merchandise, sorted stock in,
the warehouse, and on occasion assisted drivers in unloading their trucks. It
was also his duty to keep the warehouse clean, which he did by sweeping. and,
waxing floors and cleaning the toilets. The record, however, does indicate that
Blais was prone to, brag about his position. Thus, just before being transferred
to his new position, Blais stated on several occasions that he was to become
a foreman. Thereafter he did tell several drivers to keep the warehouse cleans
and to stop their trucks at the appropriate place on the warehouse floor. Om
occasion lie would also relay orders from Morley or Rieley to the drivers, but
this was also done by the office clericals. There is, however, no evidence that
any of the men ever took direct orders with respect to the performance of their
work from Blais or that they were instructed to take orders from him. At
best, Blais may have been guilty of officiousness in carrying out his duties but
ors the entire record the undersigned is of the belief and finds that Blais was:
not a supervisory employee within the meaning of Section 2 (11) of the Act..
In addition, there is no evidence of the ratification of his conduct or statements
by management. It is, therefore, found that none of the statements attributed
to Blais by various witnesses may be considered as utterances for which,
Respondent is responsible.
The complaint further alleges that Respondent granted a wage increase to
its employees for the purpose of undermining the majority status of the Union...
The record indicates that effective May 30, 1947, Respondent granted a wage
increase consisting of a 10 percent cost of living increase to all of its employees
including office clericals. The General Counsel relies on the fact that the Union
had previously demanded recognition and that a petition for investigation and;
certification of representatives was then pending before the Board. On the
other hand, it is the position of Respondent that the cost of living increase
was granted in order to bring Respondent's wage rate, admittedly low, into
conformity with pay scales in the area for similar work. There is also no,
evidence that this wage increase was ever discussed by the Union with Respondent,
or raised by it in any of the conferences held with Respondent during the
KALLAHER AND MEE, INC. 425
processing of the representation petition. In view of the above, the undersigned
finds that the record does not support a finding that this cost of living adjust-
ment was given for the purpose of undermining the Union and thereby
interfering with, restraining, or coercing Respondent's employees.
The complaint alleges that Respondent granted economic preferment and
other advantages to an employee as a reward for relinquishing his union mem-
bership and activities. This presumably relates to the fact that William Blais,
who was shop steward for the Union, lost interest in the Union shortly prior
to his transfer to the position of warehouseman. The record clearly indicates
that Blais, the oldest driver in point of seniority requested and was assigned
to the position of warehouseman. It is found that there is no substantial evi-
dence in support of this allegation of the complaint.
It is alleged that Respondent conferred with certain of its employees on
Respondent's time and premises for the purpose of inducing them to relinquish
their union membership and activities. The record shows that on or about
May 29, 1947, Manager Rieley read to his employees, during working hours, a
statement on the subject of union organization, a copy of which was introduced
in evidence. The context of the statement clearly falls within the realm of
protected free speech, and although two witnesses for the General Counsel,
Bouley and O'Connor, testified that statements were made by Rieley which
differed from those appearing in the exhibit, one of them, Bouley, admitted that
throughout the talk Rieley appeared to be reading from the paper. In view
thereof, the undersigned credits the testimony of Rieley that he read only the
text of the speech as introduced in evidence, which is found to be protected
opinion. It is further found, in view of recent decisions of the Board, that
the assemblage of a compulsory employee audience during working hours for
the purpose of reading or giving an opinion on the merits of union representation
does not constitute an unfair labor practice. See e. g. Babcock & Wilcox Company,
77 NLRB 577.
Statements attributed to Manager John Rieley were offered by the General
Counsel apparently in support of the allegations of the complaint that Re-
spondent interrogated employees concerning their union activities, threatened
them with reprisal if they persisted in and did not relinquish their union
membership and activities, and requested an employee to report any informa-
tion learned by him concerning union activities in the plant. Thus, employee
Joseph Allard, who was hired in March 1947 as a maintenance helper and was
transferred to the position of watchman in December 1947, testified that he asked
Rieley when he was hired by Rieley if there was a union in the plant; that
Rieley replied in the negative ; and that Rieley then asked him if he favored
unions. Allard further, testified that during the summer of 1947, Rieley told
him that the men would approach him to join the Union and that it made no
difference to him, Rieley, whether Allard joined or not. It further appears
that on an unidentified date, Rieley informed Allard that the trailer truck
drivers were attempting to join a union. Obviously, the two latter statements
are not violative of the Act and on the earlier occasion the entire subject of
union activities was brought up by Allard.
Testimony of a dubious nature was adduced from employees Dooley and
Bouley in support of these allegations of the complaint. According to Bouley,
Rieley informed him approximately 3 weeks after he was hired that he was
not required to join the Union. Dooley testified that Rieley informed him there
was no union in the plant, and that if anyone informed him, Dooley, that he
was required to join a union he should immediately inform Rieley. Here too
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the statements are of an explanatory nature and are not even remotely
interference, restraint, or coercion.
According to Oscar Morel, Rieley asked him when he hired him if he was a
member of a union. Morel replied that he was a member of a labor organiza-
tion, not the Union, and that he desired to retain his membership therein. Rieley
replied that he could do so, that it made no difference to him, and that Morel
could have the job. Morel further alleged that Rieley stated the employees
were attempting to organize a union, asked Morel if he knew anything about it,
and asked him whether he was going to join. Morel also claimed that Rieley
suggested to him that he join another union.
Thomas Rabbit testified that when he was hired in July 1947, Rieley informed
him that the employees were attempting to organize a union, that it made no
difference to him whether Rabbit joined or not, but that he, Rieley, wanted to
know if Rabbit did join. Chester Everly testified that when hired. in March
1947, he asked Rieley if there was a union in the plant and Rieley replied in
the negative. Everly also claimed that during the same month Rieley asked
him if he had joined the Union and added that he wanted to know about it if
Everly did so. According to Everly, Rieley on this occasion stated that if the
Union came in he would cut the hours and that pay would be less.
Rieley testified that after the union campaign started in April, he advised
all new employees after they had been hired that the plant was in the process
of organization, but that it made no difference to him whether or not they
joined the Union. In effect, he denied discussing the Union with the men in
any other fashion. Rieley impressed the undersigned as an honest witness and
his testimony was in large measure corroborated by that of the witnesses for
the General Counsel, set forth above, which in large measure attributed non-
coercive statements and opinions to Rieley. Accordingly, the undersigned credits
Rieley's testimony herein. In view of the findings above the undersigned finds
that the allegations herein with respect to independent interference, restraint,
and coercion have not been sustained by a preponderence of the evidence and
recommends the dismissal thereof.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III above, occurring in con-
nection with its operations described in Section I above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States
and such of them as have been found to be unfair labor practices tend to lead
to labor disputes burdening and obstructing commerce and the free flow thereof.
V. TIIE REMEDY
Having found that Respondent has engaged in unfair labor practices affecting
commerce, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act. It has
been found that Respondent has discriminated with respect to the hire and tenure
of employment of Oscar Morel, Armand Metivier, Sidney Dooley, and Henry
Bouley, and it is recommended that Respondent offer them immediate and full
reinstatement to their former or substantially equivalent positions without prej-
s Even assuming that the testimony of Rieley were not credited herein, those state-
ments attributed to him which are of a coercive nature are relatively so few and infrequent
that they do not appear to warrant.a finding of interference, restraint, or coercion. Cf.
Opelika Textile Mills, Inc., 81 NLRB 594.
KALLAHER AND MEE, INC. 427
udice to their seniority or other rights and privileges. Chase National Bank, 65
NLRB 827.
Ordinarily, discriminatorily discharged employees are entitled to back pay
from the date of their discharge. In the instant case, however, these four em-
ployees were discharged while they were on strike and until they had abandoned
the strike by indicating their desire to return to work on the terms existing
when the dispute arose, it cannot be said that their loss of wages was caused
by the discharge. Inasmuch as on or about January 27, 1948, they uncondition-
ally requested reinstatement from Respondent, indicating thereby that they had
abandoned their strike and desired unconditionally to return to work, it is found
that Morel, Metivier, Dooley, and Bouley are entitled to back pay from January
27, x.948. See Massey Gin and Machine Works, supra. It is further recom-
mended that Respondent make them whole for any loss of pay suffered as a
result of the discrimination by payment to each of them of a sum of money
equal to that which lie would normally have earned as wages from January
27, 1948, to the date of Respondent's offer of reinstatement, less his net earnings
during that period. See Crossett Lumber Conipgny, 8 NLRB 440.
Respondent by its discharge of the four strikers resorted to the most effective
means at its disposal to defy what the Supreme Court has termed "the principal
purpose of the Act," namely, its guarantee to employees of "full freedom of
association and self-organization." Wallace Corporation v. N. L. R. B., 323 U. S.
248. The undersigned will, therefore, recommend that Respondent be ordered to
cease and desist from in any manner infringing upon the rights of employees as
guaranteed by Section 7 of the Act. See May Department Stores v. N. L. R. B.,
326 U. S. 376.
Since it has been found that Respondent did not commit unfair labor prac-
tices in the following respects, it will be recommended that the allegations of
the complaint with regard thereto be dismissed, namely that Respondent (1)
interrogated employees relative to their union membership and activities; (2)
threatened employees with economic reprisal unless they relinquished their
union membership and activities ; (3) threatened employees with economic re-
prisal because they had joined the Union; (4) threatened employees with eco-
nomic reprisal if the Union became their collective bargaining representative;
(5) granted additional compensation to its employees for the purpose of under-
mining the Union; (6) conferred with employees on Respondent's time and
premises for the purpose of inducing them to abandon their union membership
and activities; (7) offered wage increases and other benefits to its employees
for the purpose of inducing them to abandon their union membership and activi-
ties; (8) granted economic preferment to an employee for relinquishing his
union membership and activities; (9) urged employees not to join the Union, to
withdraw from the Union and to join a rival union; and (10) requested an em-
ployee to report any information acquired by him concerning the Union.
It is further recommended that the complaint be dismissed insofar as it alleges
that Respondent has discriminated with respect to the hire and tenure of em-
ployment of Chester Everly, Francis O'Connor, and Thomas Rabbit.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes to following :
CONCLUSIONS OF LAW
1. Oil Workers International Union Local 366, C. I. 0., is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discriminating with regard to the hire and tenure of employment of
Oscar Morel, Armand Metivier, Sidney Dooley, and Henry Bouley, thereby dis-
couraging membership in a labor organization, and interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in Section
7 of the Act, Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (3) and (1) of the Act.
3. The foregoing unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4. Respondent has not discriminated with respect to the hire and tenure of
employment of Chester Everly, Francis O'Connor, and Thomas Rabbit.
5. Respondent has not engaged in unfair labor practices by interrogating
employees relative to their union membership and activities; threatening em-
ployees with economic reprisal unless they relinquished their union membership
and activities ; threatening employees with economic reprisal because they had
joined the Union ; threatening employees with economic reprisal if the Union
became their collective bargaining representative; granting additional compensa-
tion to its employees for the purpose of undermining the Union; conferring with
employees on Respondent's time and premises for the purpose of inducing them
to abandon their union membership and activities ; offering wage increases and
other benefits to its employees for the purpose of inducing them to abandon
their union membership and activities; granting economic preferment to an
employee for relinquishing his union membership and activities; urging employees
not to join the Union, to withdraw from the Union and to join a rival union;
and requesting an employee to report any information acquired by him concerning
the Union.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that Respondent, Kallaher and Mee, Inc., Pawtucket,
Rhode Island, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Oil Workers International Union Local 366,
C. I. 0., or any other labor organization of its employees because they engage
in collective or concerted activity, or by discriminating in any other manner in
regard to their hire or tenure of employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right of self-organization, to form labor organiza-
tions, to join or assist Oil Workers International Union Local 366, C. I. 0., or
any other labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection as guaranteed in Section 7
of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to the employees named in Appendix A immediate and full reinstate-
ment to their former or substantially equivalent positions, and make them whole
for any loss of wages in the manner described in the section entitled "The
remedy"
(b) -Post immediately at its offices and place of business in Pawtucket, Rhode
Island, copies of the notice attached hereto and marked Appendix A. Copies of
sai dnotice, to be furnished by the Regional Director for the First Region, shall,
after being duly signed by Respondent's representative, be posted by Respondent
immediately upon receipt thereof and maintained by it for sixty (60) consecutive
KALLAHER AND M'E'EK .INC. 429
days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any other material ;
(c) Notify the Regional Director for the First Region in writing, within twenty
(20) days from the date of receipt of this Intermediate Report, what steps
Respondent has taken to comply herewith.
It is recommended that unless on or before twenty (20) days from the date
of the receipt of this Intermediate Report, Respondent notify said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring Respondent to take
the aforesaid action.
It is further recommended that the complaint be dismissed insofar as it alleges
that Respondent discriminated with regard to the hire and tenure of employ-
ment of Chester Everly, Francis O'Connor, and Thomas Rabbit. It is further
recommended that the complaint be dismissed insofar as it alleges that Respon-
dent engaged in interference, restraint, or coercion as outlined in Paragraph IV
of the complaint.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may;
within twenty (20) days from the date of service of the order transferring
the case to the Board, pursuant to Section 203.45 of said Rules and Regulations,
file with the Board, Washington 25, D. C., an original and six copies of a state-
ment in writing setting forth such exceptions to the Intermediate Report or to any
other part of the record or proceeding (including rulings upon all motions or
objections) as he relies upon, together with the original and six copies of a brief
in support thereof; and any.party may, within the same period, file an original
and six copies of a brief in support of the Intermediate Report. Immediately
upon the filing of such statement of exceptions and/or briefs, the party filing the
same shall serve a copy thereof upon each of the other parties. Statements of
exceptions and briefs shall designate by precise citation the portions of the record
relied upon and shall be legibly printed or mimeographed, and if mimeographed
shall be double spaced. Proof of service on the other parties of all papers filed
with the Board shall be promptly made as required by Section 203.85. As further
provided in said Section 203.46, should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of service of the order transferring the case
to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 11th day of March 1949.
MARTIN S. BENNmT,
Trial Exanvhaer.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner 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 :
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist OIL WORKERS INTERNATIONAL UNION LOOAL
366, C. I. O. or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection.
WE WILL OFFER to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the discrimina-
tion.
Oscar Morel Sidney Dooley
Armand Metivier Henry Bouley
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
KALLAHER AND MEE, INC.,
Employer.
By -------------------------------
(Representative) (Title)
Dated -------------------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced, or covered by any other material.