Burdett Oxygen Co. of Cleveland, Inc.

National Labor Relations Board - Board Decisions

Aug 23, 1974

213 N.L.R.B. 19 (N.L.R.B. 1974)

BURDETT OXYGEN CO. OF CLEVELAND, INC. 19
Burdett Oxygen Co. of Cleveland, Inc. and Local 414,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America. Case
25-CA-6002
August 23, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
complaint issued January 31, 1974, presenting allegations
that Burdett Oxygen Co. of Cleveland, Inc., hereinafter re-
ferred to as the Respondent, committed unfair labor prac-
tices within the meaning of Sections 8(a)(1) and (3) and 2(6)
and (7) of the Act. Respondent filed a timely answer deny-
ing that it committed the violations of the Act alleged. Rep-
resentatives of all parties were present and participated in
the hearing.
Based on the entire record, including my observation of
the witnesses, and after due consideration of the arguments
presented in the briefs filed by the General Counsel and the
Respondent, I make the following:
On May 13, 1974, Administrative Law Judge Jennie
M. Sarrica issued the attached Decision in this pro-
ceeding. Thereafter, General Counsel filed limited ex-
ceptions and a supporting brief, and Respondent filed
limited exceptions and an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Burdett Oxygen Co. of
Cleveland, Inc., Fort Wayne, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
' The Administrative Law Judge found it immaterial that Porubsky, the
manager of Cleveland's cylinder control department , may have "raised the
cry" to fire Blanton and that Parsons pronounced the decision for termina-
tion . We do not agree . Personnel and Labor Relations Director Parsons has
the authority to discharge employees. Parsons' testimony indicates that his
decision to discharge was based on his discussion with Porubsky and Mrs.
Collins' earlier letter suggesting Blanton's discharge even though Parsons
would not have discharged Blanton without conferring with Hutchens. These
circumstances tend to suggest that Blanton 's discharge resulted from her
deficiencies as an employee and not from her signing of the union card.
DECISION
STATEMENT OF THE CASE
JENNIE M. SARRICA, Administrative Law Judge: Upon due
notice, this proceeding under Section 10(b) of the National
Labor Relations Act, as amended (29 U.S.C. 151, et seq.),
hereinafter referred to as the Act, was tried before me at
Fort Wayne, Indiana, on March 20, 1974, pursuant to a
FINDINGS OF FACT
I. JURISDICTION
Respondent, an Ohio corporation with its principal office
at Cleveland, Ohio, and facilities located in various other
States of the United States, including the Fort Wayne, Indi-
ana, facility involved herein, is engaged in the manufacture,
sale and distribution of bottled gases , oxygen, and related
products.
During the preceding 12 months, a representative period,
Respondent manufactured, sold and shipped from the Fort
Wayne facility products valued in excess of $50,000. During
the same period, Respondent purchased, transferred, and
delivered to the Fort Wayne facility directly from States
other than the State of Indiana, goods and materials valued
in excess of $50,000.
Respondent admits, and I find, that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE UNION
Respondent admits, and I find, that Local 414, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, the Charging Party,
hereinafter referred to as the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel seeks to establish that Respondent,
through branch manager , James Hutchens , unlawfully in-
terrogated union steward , Mike Harshbarger , and discrimi-
natorily discharged , and refused to reinstate Linda Blan-
ton, because the latter attempted to join the Union.
The Union is the collective -bargaining representative of
a unit of plant employees at the Respondent's Fort Wayne
facility which includes dockmen , warehousemen , truck-
drivers, and counter salesmen but does not include office
clerical employees.
Blanton was employed May 7, 1973,' as a general office
clerk in the Fort Wayne Branch . She was discharged on
December 7, by Hutchens . The reasons given Blanton at the
time of discharge were that she was costing the company
money with the demurrages which were being returned
1 All dates are in 1973.
213 NLRB No. 9
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the Cleveland office to be corrected and that Hutchens
felt she just was not suited for the job.
Just before Thanksgiving Blanton inquired of Harshbar-
ger concerning details of union membership benefits and
asked him for a membership application. Harshbarger re-
minded her that there was no classification for her in the
contract .2 Blanton asserted she felt they were discriminating
against her, so Harshbarger, after talking to Union Busi-
ness Agent Thomas M. Jones, gave Blanton the application
card. That evening Blanton called Jones to discuss her in-
tention to file the application. When Jones indicated he did
not believe there was a classification for her , Blanton re-
minded him that Gene Salgo did clerical work and he was
covered by the contract.' Jones then stated that he had been
looking at the contract while they were talking and that
there might be a classification for her, so she should com-
plete and turn in the application. Blanton did so, and on
Monday, December 3, dated and gave the completed appli-
cation to Harshbarger who arranged for Jones to pick it up
on Friday, December 7.
One afternoon near the middle of that week, Hutchens
came out to the dock and asked Harshbarger if Blanton was
planning to join the Union. Harshbarger told Hutchens that
it was a possibility. Hutchens stated that Blanton would not
be able to join because she was an office worker. Harshbar-
ger stated that this decision would be between the Union
and Blanton .4 Harshbarger did not mention this conversa-
tion to Blanton.
After her discharge at the end of the workday on Friday,
December 7, Blanton contacted Harshbarger, reported
what had happened and asked him to contact the business
agent. As a result of various phone calls and discussions
between them, and a phone call by Jones to Hutchens, a
meeting was set for Monday morning, December 10. During
the phone conversation, and later at the meeting, Hutchens
denied that Blanton was discharged because of her interest
in joining the Union, and he refused to reinstate her.5
2 In July Blanton had inquired of Harshbarger whether she could join the
Union. Harshbarger gave her an application but told her the Union had no
classification for her and any action on her application would have to wait
until the end of the contract term , which Blanton understood to be sometime
in November . Believing it useless, Blanton did not complete the application
card for membership at that time.
3 Gene Salgo works at a counter which is located in the vicinity of the
office , outside the manager 's office and near the desks of the office staff.
Hutchens testified that he overheard a statement through the door of his
office that the office girls were going to become members of the Union.
Because of this Hutchens went out to Harshbarger and, in a joking manner,
said "I understand you're going to have females as local members." Hutchens
admitted that he did ask specifically about Blanton and that Harshbarger
replied , "Yes, she asked for a card and I turned it over to Tom Jones."
Hutchens further testified that he treated it in a joking manner when he spoke
to Harshbarger , but it was not a joke to him if it were true.
5 At the December 10 meeting attended by Hutchens , Jones and Harshbar-
ger, Jones asked Hutchens if he was holding to the discharge and Hutchens
replied in the affirmative . He told the Union representatives he had dis-
charged Blanton because she made too many mistakes on billing and was
incompetent. Jones asked whether Hutchens was aware that Blanton had
signed the Union card. Hutchens denied such knowledge , and asked Jones
whether Blanton had already signed the card or had signed it afterwards and
backdated it. (According to Hutchens he told Jones he had not received
confirmation, that he had only "heard scuttlebutt .") Jones asked Hutchens
whether he had given Blanton any oral or written warnings . Hutchens assert-
ed he had talked to her and had a file of notes and records of her mistakes.
However, he did not show the Union representative the file. Jones asked why
Respondent contends that Blanton was discharged for
her incompetency in all phases of her work which persisted
during her entire employment period and that her work
deteriorated until upon the insistence of the Cleveland of-
fice because of recent gross errors the decision was made in
Cleveland to terminate her employment. Respondent as-
serts that the timing of the discharge in relation to her
interest in joining the Union was purely coincidental. -
In view of the nature of Respondent's defense, it is neces-
sary to review Blanton's entire work history. As a general
office employee, Blanton's duties were to call gas customers
and take their orders for the next day's deliveries, and to
answer all incoming calls. She also did filing and some
typing, posted all invoices on customer demurrage sheets,
and at the beginning of each month, computed the demur-
rages and sent them to the Cleveland office for review and
customer billing. During the first month of her employment,
Blanton began learning how to post the invoices onto the
demurrage sheets, along with her other duties. She handled
the monthly computation of the demurrage sheets for the
first time in early July covering demurrages for the month
of June. Hutchens' wife, who had handled the demurrages
in June for the month of May, and who worked part time
performing filing, typing, and coding of invoices, was pre-
sent during the July demurrage computation period for 2 or
3 days and tried to explain the procedure. Manager Hutch-
ens was unable to help Blanton with these. He told her he
did not know how to do them and that they would drive him
crazy. He promised to have someone from Cleveland come
to train her, but this was not done.6
The demurrage work required keeping track of and post-
ing the number, by size and product, of all cylinders taken
out of and returned to the company; computing the number
of cylinders outstanding for each customer 7 for purposes of
charges and cylinder rentals; and submitting the monthly
demurrage sheet containing those computations to the cyl-
inder control section in Cleveland. There, after review and
corrections where needed were made, the information was
fed into a computer for billing purposes after which a copy
Hutchens had given her a raise if Blanton was such an incompetent employ-
ee. Hutchens stated that the raise was to encourage her to improve. Jones told
Hutchens he would have to turn the matter over to the Labor Board and
Hutchens told Jones to do whatever he had to do.
6 There is no explanation why Mildred Savoy, the other office worker, who
knew how to do the demurrages and who would answer specific questions
asked by Blanton, did not, and was not assigned to train Blanton. I do not
credit testimony by Robert L. Porubsky, cylinder control manager in Cleve-
land, that when he and the former manager, Ann Louise Collins,were in Fort
Wayne auditing the invoices and taking inventory of the cylinders at the
plant, Collins trained Blanton. It is contrary to all other evidence, including
his own statement of what they were doing in Fort Wayne at that time.
Hutchens verifies that they were occupied in taking inventory and checking
postings of the invoices. Hutchens also testified that he had later requested
Porubsky to come back to Fort Wayne and give Blanton some training.
i When Blanton began doing the demurrage work there were around 800
accounts of which 700 were on lease arrangements. During the summer
Respondent arranged with a distributor to take over a substantial number of
the accounts. After the transfer there remained about 500 accounts of which
monthly demurrage statements were required for about 225. The Fort Wayne
Branch still remained one of the major facilities in account activity ranking
fifth highest in the entire corporation in volume of inventory and sales. The
work Blanton was doing on the demurrages entailed the control and invento-
ry of between 11,000 and 13,000 cylinders at the facility which handles
approximately 96,000 cylinder turnover a year. The average cost of a cylinder
is in excess of $50 each.
BURDETT OXYGEN CO. OF CLEVELAND, INC. 21
of the demurrage sheet was mailed to the customer. Errors
found on demurrage sheets were noted in pencil and the
sheets were returned to the originating branch for correc-
tion.
Porubsky, who at that time was Collins' assistant, re-
viewed Blanton 's work . He telephoned Blanton and pointed
out her errors on demurrage sheets , explaining what she
should have done in each case. He also promised her he
would come to Fort Wayne and give her some training when
he could arrange the time, but he never came.
Whenever she made a mistake , Blanton became con-
cerned and would make this fact known to Hutchens who
would say "You're doing fine-no problem." Mrs. Hutch-
ens also told Blanton she was doing "a tremendous job" and
told the same thing to Blanton's husband. When the demur-
rages came back from Cleveland for correction, Hutchens
would merely tell Blanton to correct them and send them
back. At one time he told her that girls at other branches
with 4 and 5 years of experience still made mistakes and
received demurrages back to be corrected. With respect to
mistakes in computation , Hutchens told Blanton to slow
down; she was going too fast and this was the reason she
was making those mistakes.
Between May and August Blanton frequently brought up
the subject of her pay. She testified that she did not exactly
ask Hutchens for a raise but she would " tease" him about
the amount of her pay. An example of this teasing was an
occasion when she asked Hutchens in passing whether she
would make more money if he were to move her desk over
into the plant. Hutchens just laughed. On August 8, Hutch-
ens filled out a form requesting a raise for Blanton which
she received effective September 1. On this form Hutchens
stated:
This girl is great in demurrages and shows a great deal
of company conscientousness [sic]. She deserves more
pay.
Later that month, while complimenting Blanton on her
work, Hutchens told her he had put in for a raise for her but
did not know how much it would be. He also told her that
in March 1974 she would get another raise, which she un-
derstood would be automatic.
One Friday late in August, Blanton left a note in Hutch-
ens office giving him a 1-week notice of her intent to leave
the job, stating as the reason constant friction between her
and Savoy. On Monday morning Hutchens asked Blanton
whether he could talk her out of quitting. Blanton agreed to
stay on the job. Later he asked Blanton to write out a list
of the things that were causing friction between her and
Savoy and give it to him and he would speak to Savoy when
she returned from vacation.
Collins sent a memorandum to Hutchens under date of
August 15. In this memorandum Collins set forth the types
of errors Blanton was making and concluded:
Hutchens did not tell Blanton about this letter. Instead, he
made a list of the examples given as to the types of errors
Blanton was making and gave them to her as items to check
when doing the demurrage sheets. As they appear in Collins'
memorandum, the criticisms of Blanton's work were:
... most of the errors are due to carelessness and
probably not knowing exactly how to compute the de-
murrages and not just error in figures as you thought.
1) If she proved her balances , she would have caught
most of her own errors , or at least have known some-
thing was wrong.
2) The demurrages come thru out of alphabetical
order . She has said, since that is the way she receives
them so that is the way she is returning them. This
answer makes no sense , as you do not skip around and
compute your demurrages.
3) She is not stapling her pages together when a
customer has more than one page.
4) She is forgetting to put customer code numbers
on some of the demurrages . This is very important.
5) She is not separating her NONES from the monies.
6) She forgot to tape the monies and count her mon-
ey customers.
7) She is not changing the invoice numbers to cor-
respond with her first sheet.
Collins retired in mid-September. Porubsky assumed her
position on September 1. Sometime shortly after Porubsky
took over there was a telephone conversation between
Porubsky's secretary and Blanton which Blanton found
very disturbing. She was being questioned about a matter
concerning which she had no knowledge. Blanton sought
out Hutchens and related the conversation to him. It devel-
oped that the subject matter pertained to certain files in
Savoy's possession. Hutchens told Blanton everything was
all right, he would take care of the matter. After that inci-
dent Hutchens stopped Cleveland from making any more
calls to Blanton with respect to her demurra es , insisting
that all comments come to him and in writing . Blanton did
speak with Collins just before the latter retired. In that
conversation Blanton asked Collins several questions she
had about demurrages. Collins was very helpful and cordial,
reassuring Blanton by stating that she had been with the
company 24 years and still became confused and made
mistakes.
Blanton testified that she had reason to believe a certain
amount of friction developed between Hutchens and Po-
rubsky which may have been over her work. Hutchens had
stated to her that he was keeping a file on Porubsky, which
to her knowledge contained different memoranda Porubsky
had sent Hutchens, and that when Porubsky came to Fort
I do not think she is acquiring the computation or
procedure very quickly. Perhaps if you hired another
girl and we started from scratch again, we would be
much further ahead.
! I am not convinced by Blanton 's assertion that she made no complaints
to Hutchens about Porubsky's telephone calls concerning her mistakes on the
demurrages, and that she was not upset by those calls. The single call from
his secretary would hardly account for the breadth of the action taken by
Hutchens in cutting off all calls from Cleveland to Blanton.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wayne he was going to change Porubsky's way of thinking.
In November, Porubsky returned 3 demurrages for correc-
tion on which neither Blanton nor Savoy could find an
error. Hutchens told Blanton to photocopy these for the
Porubsky file and return the demurrages to Cleveland.
Blanton asserted that although Hutchens gave her con-
structive suggestions on how to improve her demurrage
work, he never criticized her work in any way, and that no
one else criticized her work to her knowledge. She was
aware that after Porubsky took over from Collins the rela-
tions with Cleveland changed and Hutchens started receiv-
ing a lot of memoranda regarding her work. Blanton also
testified she thought it would be fair to say that Hutchens
defended her in her work throughout her employment, but
when he fired her, Hutchens did not tell her he was doing
so on directions from Cleveland.
With respect to her demurrage errors, Blanton testified
she kept no records of the number each month but did recall
that there were 29 or 30 mistakes the first month and that
one month her errors were as low as 7. Hutchens testified
that errors in July for Blanton's first month were heavy
involving 18 accounts. Hutchens did not know the number
of accounts returned for correction from Cleveland for the
intervening months but testified that errors for Blanton's
last reports covering November sales totaled 12 which in-
volved 7 accounts-5 of them returned from Cleveland a
second time because they were still incorrect.
Hutchens testified that the reason for Blanton's discharge
was her incompetency in the work on demurrages. Howev-
er, he promptly started adding other areas of imcompetence
as additional reasons until the list encompassed her every
duty, asserting between each addition that he had named all
of the reasons for her discharge. He listed as a secondary
reason her attitude. Hutchens asserted that Blanton could
not get along with many of the customers in the phone
conversations because she was in a bad mood once or twice
a week, every week, and that he overheard her speaking to
customers in an inconsiderate manner . However, admitted-
ly, throughout the entire period of her employment he did
not mention this to her. At another point in his testimony
Hutchens stated that Blanton had a good personality and
could speak well to customers, then added, when she was in
a good mood. Incompetent typing was listed as one of the
reasons for her discharge. Later her typing was excused on
the ground that she was not trained as a typist. Although
Hutchens did not criticize Blanton's work, and when de-
murrages were returned he only told her to go through them
and correct them, he did once write her a note stating her
errors were primarily because she was not proving her bal-
ances and that she was not taking enough time and not
slowing down.
When Hutchens received a memorandum from Collins
suggesting that Blanton be replaced , according to his testi-
mony, Hutchens told her he thought Blanton had the poten-
tial to be a good employee and needed only additional
training from his wife and Porubsky. However, he did not
arrange for Mrs. Hutchens to give Blanton further training,
nor did Porubsky come to Fort Wayne to do so. Hutchens
also testified that he first became aware of Blanton 's defi-
ciencies when he received the Collins memorandum. Later
he testified that Blanton did not improve after the initial
training by his wife when she was first employed, but on the
contrary her work deteriorated. He then contradicted this
by asserting that her bad attitude started in late August or
September and manifested itself particularly in her perfor-
mance of work on demurrages in which she assumed the
stance of "I will do the best I can and the heck with the rest
of it." It was an attempt on his part to use psychology that
caused him to request a raise for her. Hutchens testified that
he lied in the statements he made on the form recom-
mending the raise for Blanton and that he asked for the raise
for her to try to make her want to work. Significantly, the
request is dated August 8, well before the time of the assert-
ed change in attitude.
Hutchens gave as the reason he did not discharge Blanton
as soon as he learned of her deficiencies the fact that Porub-
sky was new in his position and Hutchens felt he was getting
second-hand information from Porubsky. This was the rea-
son he required Porubsky to direct all calls and memoranda
on the demurrages to him. At another point Hutchens as-
serts that he was trying to help Blanton by keeping the
phone calls by Porubsky from her so he had those calls
directed to him as well as all of the memoranda, so that he
could calmly explain to Blanton what the problem was.
Hutchens asserts he defended Blanton's work monthly and
had many hostile phone conversations with Porubsky re-
garding the matter until December after he received the
erroneous demurrages back from Cleveland for the second
time . Hutchens states that it was then he decided he could
no longer tolerate Blanton's continuing mistakes.
With respect to the December demurrage sheets, Hutch-
ens states that Porubsky called him on December 4, and
advised him that several of Blanton's demurrages were still
incorrect and were being returned. In that phone conversa-
tion Porubsky strongly advised that Blanton be discharged.
Hutchens waited until the rejected demurrages arrived on
December 6, then called Jack Parsons, personnel and labor
relations director in Cleveland. Hutchens told Parsons of
Blanton 's work performance and of Porubsky' s recommen-
dation, and stated he was seeking Parsons' approval. Par-
sons decided Hutchens should discharge Blanton.
Hutchens denied he told Parsons he had knowledge of
Blanton's interest in joining the Union, or that her indicated
interest therein had anything to do with his recommenda-
tion to Parsons.
Porubsky testified that when they receive the demurrages
in Cleveland they have no way of knowing whether the
items are posted from the proper invoices and in the proper
columns ; they can only check the computations and have
to assume that the invoices have been properly posted. He
also asserted that Respondent does have a 3-day training
arrangement for demurrage clerks.
Porubsky labeled Blanton's work as terrible and the worst
in the corporation. He asserted that her mistakes exceeded
those of.any other branch and that for one month they
9 Still a third version is that Hutchens and Porubsky had words over
Blanton in September because Porubsky was not using ethics in his construc-
tive criticism, he was not being very cool in his presentation on the phone,
and he was causing Blanton to become very upset, and this together with the
incident involving his secretary and the expense involved caused him to put
an end to the direct calls to Blanton . He also requested written instructions
for demurrages which Porubsky later directed to all branch managers.
BURDETT OXYGEN CO. OF CLEVELAND, INC. 23
exceeded those of all 15 branches. He called Blanton at-
tempting to explain to her the errors he had found but
Blanton was not receptive to criticism and became irritated.
In September a heated discussion between Blanton and his
secretary was followed by a call from Hutchens expressing
his discontent with Porubsky's vocal criticism of Blanton.
Hutchens told Porubsky he wanted Porubsky to go there
and train Blanton, and that further communications on
demurrages should go through him.
Subsequent discussions between Porubsky and Hutchens
became heated because Porubsky was very irritated with
Blanton's mistakes which he viewed as very careless. On
three or four occasions Porubsky called to the attention of
Parsons his dissatisfaction with Blanton's work, stating only
his opinion as he had no authority to recommend Blanton's
discharge . When Blanton's mistakes were so numerous for
November and some had to be sent back a second time,
Porubsky called Hutchens and told him this just could not
be tolerated any longer. He requested that Hutchens dis-
charge Blanton. Porubsky also made it a point to see Par-
sons on December 5, and inform him of the problem. He
stated to Parsons that he could not put up with the problem
any longer and requested Parsons to dismiss Blanton.
Parsons, who testified that he very seldom is called into
the picture but that he saw the papers when Blanton was
hired, he had received a copy of the Collins memorandum
relating to the demurrage errors at the Fort Wayne Branch,
he approved the raise for Blanton in August, stated that
Porubsky had expressed his dissatisfaction with Blanton's
performance and reported he had made this known to
Hutchens who had not seen fit to take any action, therefore
he was asking Parsons to intercede. Thus, when Hutchens
called him on December 6, he was well aware of the situa-
tion. However, he waited until he received Hutchens' opin-
ion of Blanton's work before he made his decision that
Blanton should be discharged.
Parsons further testified that there is a requirement for his
approval before any employee can be discharged except in
cases of theft or drunkenness, and that Respondent does
have a 60-day probationary period within which most em-
ployees who are not performing up to Respondent's stan-
dards are dismissed. Finally, he first learned that Hutchens
knew of Blanton's interest in the Union sometime after the
December 10 meeting between Hutchens and the Union.
Analysis and Conclusions
Hutchens' undisputed interrogation of the Union steward
concerning Blanton's attempt to join the Union clearly es-
tablishes his knowledge of Blanton's union activity. With
respect to whether the interrogation itself was unlawful, it
may well be argued that in content as well as context this
interrogation could not reasonably be regarded as coercion
of the union steward. However, the Act prohibits interfer-
ence as well and I find that Hutchens, by injecting his
inquiry and opinion into the matter of whether Blanton
desired to or would be able to join the Union, technically,
was interfering with the protected rights of his employees.
By doing so Respondent violated Section 8(a)(l) of the Act.
Turning now to the question of the alleged Section 8(a)(3)
violation, I do not credit Hutchens as a reliable witness, not
only because of his demeanor but also because of the num-
erous internal inconsistencies appearing in his testimony-
several instances of which are set forth above. Therefore, I
accept his testimony only where it is consistent with or
corroborated by the testimony of credible witnesses. Porub-
sky clearly is inclined to gross exaggeration and allowances
are made for this characteristic in evaluating his testimony.
Also of some significance as an indicator of the probabili-
ties of what occurred is the particular personality character-
istics displayed by various witnesses , particularly Porubsky
who revealed a positive aggressiveness to the point of being
somewhat abrasive and Blanton who appeared to be highly
sensitive and who displayed impatience, alertness of mind,
quickness of speech and a tendency to answer questions to
the point even before they were completed.
The testimony leads me to conclude that Blanton was a
very fast worker, with a good personality for dealing with
customers in taking telephone orders, and that she was a
substantial asset as a general office clerical employee. She
was able to perform all the many details of her job assign-
ments even without the initial special 3-day training gener-
ally given for handling demurrages and, in addition, was
able to handle other duties as assigned without training, e.g.,
preparation of the payroll on three occasions although this
was a major part of Savoy's job. Blanton's greatest failing
was that she worked so fast that she made needless and
careless errors, a telling example of which is the fact that on
the membership application card which she submitted to
the Union she gave her year of birth as 1973. This failing
was compounded by the fact that Blanton was sensitive and
easily upset, and had to deal with Porubsky who, no doubt,
was aggressive rather than diplomatic in pointing out her
errors. On the other hand, Blanton's speed, willingness to
work, and ability to handle whatever work she was assigned,
made her appear to Hutchens as potentially a very valuable
employee worth special effort and handling. He therefore
went to great lengths to satisfy her sensitivity in the office
and to shield her from outside criticism. This brought about
the situation wherein his will to run his own shop was pitted
against Porubsky's aggressiveness in venting his aggrava-
tion with the needless errors-or more accurately failures 10
-of Blanton to follow prescribed form in presentation of
her monthly demurrage summaries.
I reject Hutchens' claim of incompetence in practically all
areas of job performance as the causes for Blanton's dis-
charge, either over the entire period of her employment or
over any more current period. The very multiplicity of as-
serted reasons and Hutchens' equivocation with respect
thereto makes all of them suspect. However, the evidence of
persistent difficulties in relation to Blanton's handling of
demurrages is too well documented and too consistent to be
negated by Hutchens' deficiencies as a witness. I find that
these problems were real.
It is possible that the return for the second time tt of the
10 That Blanton's so called errors involved more form and procedure than
calculations is indicated by the types of errors covered by Collins' August 15,
memorandum ; the type of instructions issued at Hutchens ' request in No-
vember by Porubsky; and, the bulk of the memoranda sent by Porubsky to
Hutchens concerning Blanton 's reports.
11 Of the six demurrage memoranda dated December 4, from Porubsky
Continued
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same accounts for correction of November errors in demur-
rages was sufficient to cause Hutchens to give up the stand
he had taken against Porubsky's telling him how to run his
branch, which was a dispute grounded in the demurrage
errors being returned from Cleveland. I do not believe the
validity of this claimed reason for the discharge is negated
by the fact that at the time of discharge Hutchens told
Blanton her mistakes were costing the company too much
money, and the failure of the evidence to establish that
Hutchens had any idea that her errors had in fact been
costly. In this connection it is noted particularly that Porub-
sky testified that Cleveland had no way of knowing whether
the invoices had been properly posted onto the demurrage
summaries . No audit had been made to determine whether
all sales and rentals were being correctly reported and there
was no showing that any of her errors in computation had
slipped by Cleveland into the billing process to the
company's detriment or otherwise.
It is immaterial that Porubsky may well have been the one
who raised the cry, "fire her", and that Parsons was the one
who pronounced the decision for termination. Equally irrel-
evant is the question of whether either Parsons or Porubsky
had actual or presumptive knowledge that Blanton had only
recently displayed interest in joining the Union and that
Hutchens had gained knowledge thereof. For, Porubsky
admittedly had no authority to recommend Blanton's dis-
charge, and Parsons admittedly would not have taken any
action on Porubsky's urging without the call from Hutchens
and his recommendation. Hutchens clearly was the moving
force in the discharge.
Hutchens' specific knowledge, as pointed out above, was
gained by his unlawful interrogation of the Union steward,
and the timing of the discharge in relation to when he
gained that knowledge makes his action highly suspicious.
The question remains whether his interrogation also estab-
lishes antiunion animus necessary to support any inference
that Hutchens would not have called Parsons for approval
of the discharge but for Blanton's recent union activity.
The Board has steadfastly held to the view that unlawful
motivation is a necessary element and although antiunion
animus is an inference it must be based on substantial evi-
dence, not mere suspicion.12 The Supreme Court defined
substantial evidence in N.L.R.B. v. Columbian Enameling
and Stamping Company, Inc., 306 U.S. 292, 300 (1939), thus:
Substantial evidence is more than a scintilla and must
do more than create a suspicion of the existence of the
fact to be established . It means such relevant evidence
as a reasonable mind might accept as adequate to sup-
port a conclusion... .
I do not believe that the isolated instance of curiosity
satisfaction indulged in by Hutchens, either in content or
received by Hutchens on December 6, three indicate that they covered de-
murrage accounts that previously had been returned for correction , one was
an inquiry concerning a missing account previously returned , one was for
verification of a customer 's address and one involved identification of the
sizes of cylinders involved.
12 See Bonn Packing Co., Inc., 208 NLRB No. 45 (1974).
context, reveals antiunion animus sufficient to establish an
unlawful motive. As I weigh the evidence, this is a close
question. I also realize that reasonable minds do differ, but
it is the General Counsel's burden to tip the scale with a
preponderance of evidence. I cannot find that preponder-
ance sufficient to support antiunion animus, even though,
as found above, Respondent committed a technical viola-
tion of Section 8(a)(1). Accordingly, I do not find a violation
of Section 8(a)(3) and shall recommend dismissal of the
complaint with respect to that allegation.
Upon the foregoing factual findings and conclusions, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 414, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By engaging in interrogation, Respondent interfered
with, restrained, and coerced employees in the exercise of
rights guaranteed them in Section 7 of the Act, in violation
of Section 8(a)(1) of the Act.
4. The aforesaid acts are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
5. Except for the foregoing, Respondent has committed
no unfair labor practices under the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action in order to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law and upon the entire record in this case, I
hereby recommend that the Board issue the following:
ORDER 13
Burdett Oxygen Co. of Cleveland, Inc., Fort Wayne, Indi-
ana, its officers, agents, successors, and assigns, shall, with
respect to its operations at Fort Wayne, Indiana:
1. Cease and desist from interrogating, or in any like or
related manner, interfering with, restraining, or coercing its
employees in the exercise of their rights to self-organiza-
tion, to form, join, or assist any labor organization, to bar-
gain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
and to refrain from any and all such activities.
13 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the 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.
BURDETT OXYGEN CO. OF CLEVELAND, INC.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post at its place of business at Fort Wayne, Indiana,
copies of the attached notice marked "Appendix." 14 Copies
of said notice, on forms provided by the Regional Director
for Region 25, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous place, 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.
(b) Notify the Regional Director for Region 25, in writ-
ing, within 20 days from the date of the receipt of this Order,
what steps the Respondent has taken to comply herewith.
14 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
25
WE WILL NOT interrogate our employees concerning
the union activity of any employee or in any like or
related manner interfere with, restrain, or coerce our
employees in the exercise of their rights to organize,
form, join, or assist any labor organization; to bargain
collectively through representatives of their own choos-
ing; to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection; or to refrain from any such activities.
BURDETT OXYGEN CO. OF
CLEVELAND, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, ISTA Center-6th Floor, 150 W.
Market Street, Indianapolis, Indiana 46204, Telephone
317-633-8921.