Texas Independent Oil Co., Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1954

108 N.L.R.B. 617 (N.L.R.B. 1954)

TEXAS INDEPENDENT OIL COMPANY, INC. 617
TEXAS INDEPENDENT OIL COMPANY, INC. and INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL
UNION NO. 310, AFL. Case No. 33-CA-230. April 30, 1954
DECISION AND ORDER
On January 27, 1954, Trial Examiner David F. Doyle issued
his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in
certain unfair labor practices in violation of Section 8 (a) (1)
and (3) of the Act, and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in
copy of the Intermediate Report attached hereto. The Trial
Examiner also found that the Respondent had not engaged in cer-
tain other alleged unfair labor practices, and recommended dis -
missal of those allegations of the complaint. Thereafter, the
Respondent and the General Counsel filed exceptions to the
Intermediate Report and briefs.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and briefs,
and the entire record in the case,' and hereby adopts the
findings, conclusions, and recommendations of the Trial Exami-
ner with the following modifications:
The Trial Examiner found that the Respondent discharged
Almada for cause and not, as alleged in the complaint, for
union activity. A careful review of the facts convinces us that
there is merit in the General Counsel's exception.
As set forth in the Intermediate Report, Manager Quinsen-
berry went toAlmada'shome onApril 11, 1953, to interview him
about a job as truckdriver with the Respondent. Quisenberry
asked him whether or not he belonged to the Union. Almada
replied that he was a paid-up member in good standing.
Quisenberry remarked that that "let Almada out," as Quisen-
berry was hiring only nonunion men. Almada said that he sure
needed the job. Quisenberry then stated that he would hire
Almada if Almada would drop his union book withdraw from
the Union, and promise not to instigate any union activity either
on or off the job and do nothing to cause "trouble" between
the Respondent and the Union. Almada replied that he would
comply with these conditions.
Shortly thereafter Almada was hired and given a "test hop"
by Quisenberry, during which Quisenberry again told Almada
that he did not want the Union. Before long Quisenberry was
using Almada's home in Lordsburg for his headquarters, and
'The Respondent's request for oral argument is hereby denied because, in our opinion,
the record, the exceptions, and the briefs adequately present the issues and the positions
of the parties.
108 NLRB No. 100.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offered to promote Almada to a supervisory position. Almada
declined because he wanted to remain in good standing with the
other drivers.
On May 15, the Union filed a representation petition with
the Board, and a copy was served on the Respondent. Quisen-
berry, apparently disturbed by this turn of events, phoned
Almada to say that the Respondent's vice president, Horace
Steele, was angered and had instructed Quisenberry to get rid
of Almada because he was union "all the way through."
Quisenberry added, and for emphasis repeated, that Almada
would either have to send his withdrawal card back to Union
Representative Bone and resign, "or else." About May 22,
Quisenberry in conversation with Almada and another em-
ployee, Richins, cautioned them that he had discharged em-
ployee Cox upon learning that Cox was a paid-up union member,
and asked Almada how he was going to vote in the prospective
election. Almada replied that although he would not instigate
any union activity he was for the Union and would vote ac-
cordingly. On May 28 or 29 Quisenberry, in a conversation
with Almada and another employee, Beeson, again warned
Almada by advising that he had discharged employee Richins
because Richins was gettin union ideas in his head and would
vote against Quisenberry at the election. A few days later
Quisenberry repeated this admonition to Almada.
On June 3, Almada, through no fault of his own, was delayed
for almost 2 hours in fueling his truck. Upon completing the
fueling, he attempted to make up for the lost time, and, for
about 80 miles did not "bump" his tires to determine whether
they retained sufficient air pressure . Although it was agreed
that the better practice was to bump tires every 60 or 70 miles,
Almada's conduct conformed to a set of rules issued over
Quisenberry ' s signature, stating in part : "Drivers will bump
tires at least every 80 miles .. ." (emphasis added). Unfor-
tunately, he discovered that one of the dual tires had gone flat
and was burned up from the resulting friction. Although there
is testimony by Quisenberry which the Trial Examiner credited
that a burned tire endangered the equipment, no actual damage
other than to the tire resulted in this instance, for the truck
was empty and contained no dangerous petroleum products of
any kind. Nevertheless, upon learning of this misadventure -
apparently the only occasion on which Almada had burned a
tire - Quisenberry discharged him.
After discharging Almada, Quisenberry put employee Wall-
smith in his place. Wallsmith had burned tires on at least
two previous occasions. However, unlike Almada, he was not
a union member.
On these facts the Trial Examiner concluded that Quisenberry
was not unlawfully motivated because he "apparently was satis-
fied" that Almada, although a known union leader, was not in-
fluencing the other employees in favor of the Union, and in any
event Almada had in fact ruined a tire. However, the Trial
TEXAS INDEPENDENT OIL COMPANY, INC. 619
Examiner did not explain why Qui senberry would have made re-
peated coercive statements to Almada, enumerated above, if
he were really satisfied as to Almada ' s union attitude. Nor
did the Trial Examiner give weight to the fact that Quisenberry
replaced Almada with a nonunion employee who had burned
tires at least twice.
We are satisfied, as was the Trial Examiner, that Quisenberry
considered Almada to be the leading union adherent among the
employees ; that Quisenberry had engaged in a course of unlaw-
ful conduct, including interrogation and threats about union
activity, designed to thwart such activity on the part of the
employees and to apprise them, not only at their initial inter-
view but thereafter as well, that their employment would be
adversely affected if they engaged in union activity; and that
Quisenberry had in fact discharged three other employees for
union activity. In this setting we are unable to agree with the
Trial Examiner that Almada was discharged for cause. Almada
had not violated the Respondent's rule about bumping tires.
Moreover, the evidence shows that the burning of a tire is an
occasional business hazard which did not deter the Respondent
from replacing Almada with a nonunion driver who had burned
tires on at least two occasions . In view of the Respondent's
other unlawful conduct, we accordingly find that the Respondent's
manager, Quisenberry , discharged Almada for exercising his
protected right to join and assist the Union, and that the burn-
ing of the tire was a mere pretext which the Respondent seized
upon in an attempt to conceal its unlawful motive.
Because of the Trial Examiner's finding with respect to
Almada, we shall, in accordance with our usual practice, exclude
the period from the date of the Intermediate Report to the date
of the Order herein in computing the amount of back pay awarded
to Almada. 2
ORDER
Upon the entire record in this case and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
spondent, Texas Independent Oil Company, Inc., Phoenix,
Arizona, and its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and Helpers of
America, Local Union No. 310, AFL, or any other labor or-
ganization of its employees, bydischarging anyof its employees
or discriminating in any other manner in regard to their hire,
tenure, and terms or conditions of employment.
ZPacific Intermountain Express Company, 107 NLRB 837, footnote 26.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b)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
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, Local Union No. 310, AFL,
or any other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in other
concerted activities for the , purposes of collective bargaining
or other mutual aid or protection , or to refrain from any or
all 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 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 Kenneth L. Van Horn , E. W. Richins , Jr., John
Cox, and Harry M. Almada immediate and full reinstatement
to their former or substantially equivalent positions withbut
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings suffered by
reason of the Respondent ' s discrimination against them in
the manner set forth hereinabove and in the Intermediate Report.
(b) Upon request make available to the Board or its agents,
for examination and copying , all payroll records, social-
security payment records, timecards , personnel records and
reports, and all other records necessary for the determination
of the amounts of back pay due under the terms of this Order.
(c) Post at its office at Phoenix, Arizona, copies of the notice
attached to the Intermediate Report as an Appendix .' Copies of
said notice , to be furnished by the Regional Director for the
Sixteenth Region, shall , after being signed by the Respondent,
be posted by the Respondent immediately upon receipt thereof
and maintained by it for sixty ( 60) consecutive days thereafter
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not
altered, defaced , or covered by any other material.
(d) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10 ) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the com -
plaint that the Respondent discriminated against William J.
Johnson, Sidney W. Bailey, and Robert C. Dayton be and they
hereby are dismissed.
3 The notice shall be amended by substituting for the words "the recommendations of a
Trial Examiner " the words "a Decision and Order" and by adding after the words "E. W
Richins , Jr." the words "Harry M. Almada." In the event that this Order is enforced by a
decree of a United States Court of Appeals, there shall be further substituted for the words
"Pursuant to A Decision and Order " the words "Pursuant to a Decree of the United States
Court of Appeals , Enforcing an Order."
TEXAS INDEPENDENT OIL COMPANY, INC.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
621
This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as
amended, herein called the Act, was heard at Tucson, Arizona, on October 6 and 7, 1953,
pursuant to due notice to all parties. The complaint, dated September 17, 1953, issued by
the General Counsel of the National Labor Relations Board and duly served on the Re-
spondent, was based on charges duly filed and amended by the abovenamed Union. It al-
leged in substance that the Respondent, from on or about April 11, 1953, (1) had interrogated
its employees concerning their union affiliations; had coerced its employees against join-
ing or maintaining membership in the Union; and had kept under surveillance the meetings
of the Union; and (2) on specific dates alleged in the complaint, had discharged certain em-
ployees for engaging in union or concerted activities, thereby engaging in unfair labor
practices within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Act.
Respondent, in its duly filed answer, admitted the jurisdictional allegations of the com-
plaint and that the Union was a labor organization within the meaning of Section 2 (5) of the
Act, but denied the commission of any unfair labor practices and alleged affirmatively that
it had discharged the employees named in the complaint for cause.
All parties were represented at the hearing, were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to
argue the issues orally upon the record, and to file briefs and proposed findings. Oral argu-
ment was presented by the General Counsel, and the Respondent filed a brief.
Upon the entire record in the case and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Upon the pleadings and a stipulation of the parties, I find that the Respondent is a corpora-
tion duly organized and existing under the laws of the State of Arizona. It has its principal
office and place of business in the city of Phoenix, Arizona, and has been at all times herein
mentioned continuously engaged in the transportation and sale of gasoline and petroleum
products. In the course and conduct of its business during the 12-month period ending June
30, 1953, the Respondent purchased equipment consisting of trucks, tractors, trailers, and
related items valued in excess of $ 75,000, of which more than 85 percent was shipped in
interstate commerce from points outside the State of Arizona to Respondent's place of busi-
ness at Phoenix, Arizona. During the same period, Respondent sold and transported gasoline
and petroleum products valued in excess of $ 1,000,000, of which more than 95 percent was
shipped in interstate commerce from points outside the State of Arizona to points located in
the State of Arizona. It is conceded, and I find that Respondent is engaged in commerce within
the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
On the pleadings, I find that the Union is a labor organization with the meaning of Sec-
tion 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Undisputed facts
The Respondent has been engaged for many years as a distributor of gasoline and petro-
leum products in the State of Arizona . In April 1953 the Respondent changed materially its
transportation operations , by discontinuing the importation of petroleum products from
California refineries by railroad or contract carriers , and by setting up its own trucking
system to bring its supply of gasoline into Arizona from refineries located in the State of
Texas , principally at El Paso . For this purpose a trucking operation was instituted between
El Paso, Texas , and Phoenix . Arizona, a distance of 427 miles. A division point was es-
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tablished at Lordsburg, Arizona, which is 230 miles distant from Phonex. By the operation,
loaded trucks were driven by drivers from El Paso to Lordsburg. At that point the driver
of the loaded truck transferred it into possession of a driver who drove the remaining dis-
tance to Phoenix. The driver who had driven the loaded truck from El Paso then drove an
empty truck back to El Paso. By this system drivers drove from El Paso and from Lordsburg
with loaded trucks, and returned with empty trucks to El Paso or Lordsburg. The first
operations were instituted on approximately April 15, 1953, with a single truck and driver,
but the trucks and drivers were rapidly increased until at the time of the hearing, 6 months
after the institution of the operations, approximately 26 truckdrivers were employed.
M. A. Quisenberry was employed by the Company to set up the operation and to employ the
men necessary to institute and maintain operations between Phoenix, Lordsburg, and EI Paso.
Certain features of Quisenberry's conduct in this regard are called into question by the com-
plaint
The Issues
At the hearing many employees testified credibly that at the time they were hired by
Quisenberry they were interrogated by him as to their membership in the Union, and that they
were told that the operation was to be a nonunion job and they were to refrain from union ac-
tivities. Quisenberry admitted that he had interrogated the prospective employees about their
past and present union affiliations and had told them that he did not want the job organized as a
union job until the operation of the truck route had become firmly established, and that he had
urged the employees to refrain from union activities until that time. Consequently there is not
much dispute as to much of Quisenberry's conduct. His conduct found to constitute specific
violations of Section 8 (a) (1) based on this testimony will be set forth later herein.
The vigorously contested point at issue between the parties is contained in the allegation
that the Respondent, by Quisenberry, discriminatorily discharged the following men on the
various dates hereafter set forth , for engaging in union activities in violation of Section 8 (a)
(1) and (3) of the Act:
Kenneth Van Horn Discharged May 12, 1953, rehired approximately September 28,
19531
John Cox May 15
William J. Johnson May 15
E. W. Richins, Jr May 25
Harry Almada June 3
Sidney Bailey July 6
Robert Dayton Laid off for 2 full days beginning September 8
The General Counsel and the Union contend that each of these men was discharged for a dis-
criminatory reason , while the Respondent contends that each of the men was discharged for
cause
It is worthy of note, that the complaint of the General Counsel names as a discriminatee
every truckdriver discharged by the Respondent fromthedate of the institution of the trucking
operation until the date of the hearing, with one exception. That driver, not named in the
complaint, had an accident which resulted in the destruction of his truck by fire. That particular
driver is not involved in this proceeding. However, all other men discharged by the Company
are alleged to have been objects of discrimination, while the Respondent contends that all of
these men, were discharged for cause.
The General Counsel contends that, upon the evidence as a whole, it is clear that Quisen-
berry's antipathy to the Union motivated his discharge of the specified employees However,
the Respondent argues that, admitting that Quisenberry committed certain violations of the
Act in his hiring procedure, the specified employees were discharged for inefficiency, or
grave breaches of the Company's rules, and that Quisenberry's illegal conduct, or any infer-
ence based thereon, does not outweight its proffered proof that the men were discharged for
cause.
'All dates in this report are in the year 1953, unless shown otherwise.
TEXAS INDEPENDENT OIL COMPANY, INC.
B.. The first group of discharges
1. The discharge of Van Horn
623
Van Horn was employed on May 2 and discharged on May 12. At the time Quisenberry inter-
viewed Van Horn for employment, he asked Van Horn if he was a member of the Union. Van
Horn said that he was a member of the Union and that he was on a withdrawal card from the
Long Beach, California, local. Van Horn was hired. His employment was uneventful until May
12. On that date he was at the 84 truck stop at Tuscon with Quisenberry waiting for his
scheduled truck. When the truck came in he stood up to go, but Quisenberry told him to wait.
Quisenberry then asked Van Horn with whom he had talked while in Phoenix on the previous
day. Quisenberry then explained that Van Horn, while unloading gasoline at the retail gasoline
station known as Blakely No. 1, had talked to an old man. Quisenberry said that as soon as
Van Horn had left the gasoline station, the old man had proceeded directly to "Old Man Steele"
(the vice president of the Respondent) and told him that Van Horn was instigating the Union
among the drivers, and in consequence Quisenberry had been given orders to discharge Van
Horn. Van Horn denied to Quisenberry that he had said anything out of the way to the old man.
He explained that he had passed the time of day with the old man, who had inquired about
several of the drivers, and then had inquired how the drivers were getting on with the union
deal. Van Horn had told the old man that there hadn't been too much talk about the Union,
except that some union application blanks had been passed among the drivers When the old
man had asked Van Horn for 'his estimate of whether the job would be organized, Van Horn
had replied that perhaps some day it would be organized Van Horn said that constituted the
entire conversation, and that there was nothing to it Van Horn told Quisenberry that the letter
was giving him a "chicken deal," that he had not said anything out of the way to the old man,
and that he had never tried to instigate the Union among the drivers. Despite Van Horn's ex-
planation and protest Quisenberry gave him his severance check, which was already made out.
Quisenberry then drove Van Horn to the motel where the latter was living. On the way to that
place, Van Horn again told Quisenberry that he thought his conduct was "chicken." Quisenberry
admitted that it was a "chicken deal" that he was giving Van Horn, but stated that there was
nothing he could do about it, since "Old Man Steele" had told him to get rid of the man who was
instigating the Union.
On or about September 25, 1953, Van Horn phoned Quisenberry about a job. He told Quisen-
berry that he needed a job very badly and Quisenberry told him that he needed some drivers
in El Paso. Van Horn drove to Phoenix and talked to Quisenberry at the plant, with the result
that he went to work on September 28. However, before Van Horn went to work, Quisenberry
told him that he was "not going to tell anybody how to vote but he still did not want the Union."
Van Horn asked him if he returned to work and went nonunion whether he would be given his
seniority as of May 12. Quisenberry said that he would.
As to the discharge of Van Horn, Quisenberry testified that on May 11, Van Horn was
scheduled to take out a truck in the early morning hours. He did not show up at the truck stop
on time, so Quisenberry dispatched another driver Van Horn had been late in reporting to
take his trucks several times prior to that date. When Van Horn finally appeared in the after-
noon of May 11, he dispatched him on another truck, but on the following morning when he saw
Van Horn he told him that he was discharged because he had not shown up to take his trucks
out on time.
On direct examination, Quisenberry admitted that he had conversation with Van Horn
relative to his talking to an old man at Blakely No. 1, at. the time of Van Horn's discharge.
Quisenberry testified that he told Van Horn only that he would rather the employees did not
talk about various aspects of the job to other employees of the Company, and that the conver-
sation with the old man had no bearing upon his action in discharging Van Horn. He testified
that he discharged Van Horn for appearing late for work. Van Horn in his turn denied that he
was ever late to take out a scheduled truck
2. The discharge of Cox
John Cox testified that he began work on April 15 and was discharged on May 15. On or
about April 1, in the company of Jenson, another truckdriver later employed by the Company,
Cox went to Quisenberry's house to apply for a job. The three men talked about trucking
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operations, the scheduled runs, and the rate of pay in the course of this conversation
Quisenberry asked the men if they belonged to the Union Cox said that he did not, and Jenson
explained that they had belonged to the Union, but both had become delinquent in the payment
of dues in 1947. Both men were hired and shortly thereafter went to work. On or about May 1,
Cox went to Quisenberry's house to get his load papers. Quisenberry asked him if he was
still keeping his union book paid up. Cox said that he was. A silence then ensued. After a
moment Quisenberry asked him how he would vote if an election came up. Cox said that he
was undecided.
On or about May 11 or 12, Cox had another conversation with Quisenberry at the 84 truck
stop in Tucson. On that occasion Quisenberry asked him how he would vote if an election
came up, and Cox again told him that he was undecided. On May 15 Cox reported to Quisenberry
by phone. Quisenberry told Cox that he wanted to talk to him. When the men met, Quisenberry
told Cox that he had received a letter from Tucson and El Paso unions and had thrown it in the
wastebasket. He said that he was not "going union." Quisenberry asked how Cox was going
to vote if an election came up , and the witness again said that he was undecided . Quisenberry
then said that inasmuch as Cox was undecided, and kept his book paid up, maybe he had better
get out and get a union job. Cox said O.K. Quisenberry told Cox to figure up his trip sheet,
and that he would have his check ready for him on Monday.
According to Cox, in this conversation Quisenberry said that he knew he couldn't fire a man
for joining a union but he would find a reason and make it stick Cox asked what kind of a
reason he was going to use on him, and Quisenberry replied that he was going to use the
tachograph chart which showed that Cox had been running at 58 miles an hour, in violation of
the Company's speed limit of 55 miles an hour. Explaining this conversation, Cox testified
that on his second trip in truck 7 he had told Quisenberry that when the truck motor was making
1700 r . p.m. its speed was well below the speed limit. He asked Quisenberry 's permission to
run the motor at about 1900 r.p.m. and Quisenberry had given him permission to do so.
On the following morning Cox went to get his check According to his testimony, when he
saw Quisenberry, he said "What in the hell did you fire me for, Quisenberry'2 I know it
wasn't because I was running 58 miles an hour. The only thing I can figure out is because I
was union." Quisenberry then admitted that was the reason he-had been discharged At that
point the telephone rang and the subject was dropped.
Cox also testified that about-10 days after the last-mentioned conversation he and William
Johnson, another allegedly discharged employee, saw Quisenberry at the 84 truck stop. They
conversed on this occasion, and Quinsenberry said he wished the union situation would be
resolved one way or another, that he was tired of the in-between situation Quisenberry said
to the men that if the job went union, he wanted Cox and Johnson back, because he could
always depend on them.
On cross-examination Cox admitted that in applying for a job he lied to Quisenberry about
the fact that he was a member in good standing with the Union He admitted that he was a
fully paid-up member at all times, but explained that he had lied because he had heard rumors
that the job was a nonunion job. Cox denied that he was ever warned about exceeding the
Company's speed limit of 55 miles an hour.
Quisenberry testified that Cox was discharged for speeding. Quisenberry readily admitted
that on several occasions he had told the better drivers on the job, such as Turner, Cox,
Almada, Johnson, and Dayton, that they were to exceed the speed limit in order to get to the
refinery before it closed. But he. explained that he didn't mean by those specific orders to
permit the men to run in excess of 55 miles an hour whenever they wished. He learned from
the tachograph charts that Cox on 3 or 4 occasions had driven for long distances at sustained
speeds of 60 and 65 miles an hour. That was a different situation than a driver occasionally
going 60 miles an hour in order to pass another vehicle on the road Quisenberry stated that
he had spoken to Cox about speeding on May 12, telling him that he didn't want the trucks
driven at speeds over 55 miles per hour unless he gave specific orders. On May 15 he called
Cox into his office in his home and showed him his tachograph chart and said, "Johhy, we
can't go for this kind of stuff. We'll have to let you go."
Harry Almada, another discharged employee, in his testimony also shed some light on the
Cox discharge Almada testified that a few days after Cox was discharged Quisenberry had a
conversation with Bill Richms, another employee, later discharged, and himself in front of
Almada's house. On this occasion Quisenberry said that when Cox applied for a job he had
asked him if he was in the Union and that Cox had replied in the negative. On that assurance,
Quisenberry had given Cox a job. A few days later Cox borrowed $20 from Quisenberry. And
then a few days later, Quisenberry learned that Cox carried a fully paid-up book in the Union.
He told the men that made him so mad, that he let Cox go. Quisenberry also told the men that
he had fired Cox because he felt Cox would cause him trouble later on.
TEXAS INDEPENDENT OIL COMPANY, INC. 625
3. The discharge of Johnson
William Johnson was hired by Quisenberry on or about April 28, and his employment was
terminated on May 15. Johnson testified that he was taken to Quisenberry by a friend who told
him of the possibility of a job with the Company. Quisenberry asked Johnson about his prior
driving experience and then asked him if he had a union book. Johnson said that he had a
paid-up book. Despite this, Quisenberry then said that truck 11 was coming into Phoenix in
about 3 days and that he would put Johnson on that truck. Johnson stated that thereafter
Quisenberry did not talk about the Union although the two men conversed quite frequently.
On or about May 15, Johnson came in on a run from Phoenix and talked to Quisenberry at
the 66 truck stop. In the course of the conversation, Quisenberry talked at some length about
the Union and said that he might transfer the operation to El Paso. He said he was not going
to have union drivers driving for him. Johnson replied that he was a union man and always
would be, and that ended the conversation. Johnson testified that from this conversation he
concluded that Quisenberry had given him his choice of giving up either his union member-
ship or his job. Thereafter, he did not go back to work for the Company.
On cross-examination this witness reluctantly admitted that, on the morning of his termi-
nation, he had arrived at the truck stop to take out his truck about 15 minutes after the truck
had left with another driver. He admitted that he was late for his scheduled run. Johnson also
admitted that at no time in the conversation on this morning had Quisenberry told him that
he was discharged or laid off.
On recross-examination, Johnson again testified that between the time of his hiring and his
final day on the job Quisenberry had not talked to him about the Union, but later in his testi-
mony he said that it was put to hun so many times that he would have to give up his book to
work for the Company, that he concluded he was discharged.
Quisenberry testified that Johnson was employed by theCompany for approximately 3 weeks,
ending his employment on May 15, 1953. Quisenberry said that Johnson was not discharged,
that Johnson simply did not come back to work. Quisenberry stated that when Johnson was
hired. on approximately April 25 Quisenberry told him that he would rather have the job stay
nonunion until he got all of the trucks in operation and had the operations running smoothly.
Johnson said that would be all right with him, and that was the extent of the conversation as
to unions on the day that he was hired. Quisenberry testified that on the day Johnson's em-
ployment ended Johnson did not appear for his scheduled run so Quisenberry, after some
delay, procured another driver and dispatched him on the run. When Johnson showed up some
time after the truck had left, the men sat around and conversation turned to the Union.
Quisenberry told Johnson that he wanted the men to wait until he had the operation lined up
and started before he engaged in negotiations with the Union. Johnson said that he was a union
man and always would be. Quisenberry replied that he didn't blame him a bit, that he too had
belonged to the Teamsters Union in the past. After that conversation, Quisenberry stated,
Johnson simply did not show up for work any more.
Johnson also testified that he was with Cox in the truck stop when Quisenberry said to them
that he was tired of the in-between situation with the Union, and that in the event the job went
union, he would like Cox and Johnson back.
C. Union organizational activities; the filing of the
representation petition and the filing of the
original charge herein
It is noteworthy that up to that point in time, May 15, there appears to have been no organi-
zational activity by officials of the Union. The only reference to any organizational activity
was by Van Horn, who mentioned that application blanks for the Union were passed among the
men. Jenson, another employee, later testified that he obtained signatures of employees to
approximately 11 union application blanks, 7 or 8 from men at Tucson, and the remainder
from men at El Paso. Also approximately 2 of the employees mentioned that they had signed
application blanks of the Union. However, this activity appears to have been of a clandestine
nature and to have occurred an appreciable time after May 15. There appears to have been no
open organizational activity by anyone prior to May 15 which might have contributed to
Quisenberry's fears of immediate unionization.
However, on May 15, 1953, the Union filed a representation petition with the Board, seeking
certification as bargaining agent for the employees in the trucking operation, and on May 16,
1953, the Union also filed the original charge in this case, alleging that Cox and Johnson had
339676 0 - 55 - 41
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been discriminatorily discharged. Copies of both documents were served on the Company.
Further discharges occurred.
D. Second group of discharges
1. The discharge of Richins
E. W. Richms, Jr., began his employment on April 28 and was discharged by Quisenberry
on May 25. Richins testified that just prior to his employment he called Quisenberry on the
phone and asked him for a job. In the telephone conversation, Quisenberry inquired about
Richins' union standing, and Richms told him he had a withdrawal card since 1946. Later the
men met at a drugstore at Lordsburg and discussed aspects of the job. Richins asked Quisen-
berry why he was interested in his union connection. Quisenberry replied that he was looking
for a nonunion crew, but since Richins had been inactive in the Union so long, he felt he would
not have to worry about Richins, and he agreed to give Richins the next truck into Lords -
burg. A few days later Richins heard that Quisenberry had promised the job to some other
people so Richms went into Tucson to ask Quisenberry about it. Quisenberry said that he had
three trucks that would start in the very near future and that Richms would get the next truck
and not to worry about it. Richins said that from that day until a few days before his discharge
he had no conversation with Quisenberry about his union affiliation.
On that date, May 22, he was in the company of employee Almada on the street in front of
Almada's house when they had a conversation with Quisenberry. Richins testified that in this
conversation Quisenberry said that he knew he shouldn't ask them how they were going to vote
in the election, but that he wanted to know. Richins did not know what to say. He had a with-
drawal card from the Union but did not want to jeopardize it in any way, and at the same time
he didn't want to jeopardize his job. So he equivocated; he told Quisenberry that he would not
"Cut off my nose to spite my face." Quisenberry turned to Almada, and was about to ask
Almada how he would vote, when he checked himself and said that he didn't have to ask Harry;
he knew what the answer would be. In answer to a leading question put by the General Counsel,
Richins testified that on numerous occasions Quisenberry told him that if the men voted for the
Union they would vote themselves out of a job.
Richins testified that on May 25 he went to the Dixie Drive Cafe on the east side of Lordsbu rg
preparatory to taking his truck on its run. He had no phone at home, and there was no other
way for the company to communicate with him, so he was in the practice of just being where
the truck would be, at the appointed time. When he arrived at the Dixie Drive Cafe, 3 trucks
and 3 drivers were there. One of the drivers asked him which truck he was going to take.
Richms said, "It looks like I am not going to take." Then Quisenberry, who was present, told
him that "They had put the pressure on him in Phoenix" and he had to let Richins go. When
asked what the witness understood by the phrases. "They had put the pressure on him in
Phoenix," the witness siad that he "assumed" that it was probably his union connections or
something of that nature.
However, Richins stated that at this time Quisenberry told him that he was being discharged
because he had had transmission failure in his truck When asked when he had the transmission
failure, the witness answered on the 23rd, and then corrected himself, saying it was about 2
weeks before the date of his discharge.
The witness also testified that in early June, after his discharge he ran into Quisenberry who
said that he had heard that Richins had filed charges against him with the National Labor
Relations Board Richins said that he didn't know that he had gone that far, but admitted that
he had filed an affidavit with Bill Stratton, a union official, stating what took place. He said that
on this occasion Quisenberry wanted him to withdraw the charges, and when the witness said
that he would not, Quisenberry said that in the event the Union was able to put him back to
work, Quisenberry would find means of getting rid of him, if nothing else, he would starve
him to death by holding back on his runs. Also Quisenberry said that when men were dis-
charged he put on their personnel record whether they were suitable for rehire or not, and in
his case he had placed Richins in the employable category until Richins had filed charges with
the Board against him. Then he had placed him on the ineligible list. Also Quisenberry on this
occasion told him if he dropped the charges he could move to El Paso and go to work.
On cross-examination, the witness admitted that, while he had driven heavy equipment be-
fore being employed by the Company, this was his first diesel experience. The witness also
said that when the transmission failed on the truck it was patched up on the roadside near
Lordsburg, and then driven to Phoenix to the repair shop of the Company. Richms testified
TEXAS INDEPENDENT OIL COMPANY, INC. 627
that gears have to be shifted when the motor is going at the proper number of revolutions. If
gears are shifted without the motor being at the proper speed, it is destructive of the trans-
mission. Changing the gears when the motor is not running at the proper speed is called
" jamming" the gears in place.
On cross- examination , when pressed as to whether Quisenberry had actually told him that
because he had filed charges he would never beput back to work, the witness replied that he
"assumed" that if he withdrew the charges that be could go back to work and there would be
no friction between them, but then testified that Quisenberry said there would be friction if
the Union forced him to put Richins back to work. When asked directly by the Trial Examiner
if Quisenberry ever said to him that "because he had filed charges with the Board the Com-
pany would not reemploy him," the witness replied in the negative. The witness also stated
that after he had the transmission trouble he made 2 or 3 more runs in the same truck. It
had been repaired after 2 or 3 days The witness also testified that the truck was in need of
repair all the time that he drove it. He insisted that he experienced trouble with the trans-
mission only once, and that after it was repaired at the shop at Phoenix he experienced no
further trouble with it.
Harry Almada, previously referred to, also testified in regard to the discharge of Richins
He stated that a short time after Richins was fired Almada had a conversation with Quisen-
berry and another employee named Beeson at the Dixie truck stop. On that occasion Quisen,
berry said that Bill Richms was a good fellow and he hated to let him go, but he was too thick
with his cousin, Art Richins, who was poking union ideas into Bill's head, and that Bill Richins
would vote against Quisenberry at the election, so Quisenberry had to let him go On a second
occasion, a few days later at Almada's house, Quisenberry repeated the statement.
As to Richins' discharge, Quisenberry testified that when Richins' truck, No. 11, was put in
service on the route it had a transmission with a rattling fifth gear . It did not jump out of gear
but it made a noise, so the Company installed a new fifth gear . At the time the new fifth gear
was installed, Quisenberry saw the transmission when it was taken apart at the shop, and he
noted that all other gears were in good shape. Later when the mechanic brought the truck back
after the patch-up job at Lordsburg and took it apart, Quisenberry examined it, and saw that
every gear in it, starting from the first gear upward, had the teeth on the edges of the gears
rounded off, showing that somebody had been jammingthe truck into gear . However, the cause
of the breakdown at Lordsburg had been that the fifth gear had broken and fallen off, blocking
the other gears. Quisenberry stated that the rounding of the gears could not have happened in
any other way or at any other time because he had seen the gears when they were out of the
truck on the prior occasion. This time an entirely new transmission was put in the truck and it
was given back to Richins, who was still on the job. Richins made about three trips in the truck
and the fifth gear started to rattle again and jump out of fifth gear. Richins couldn't keep it in
fifth gear. Quisenberry believed Richins was responsible for the damage to the transmission
due to his lack of experience, so he fired him. Quisenberry had the truck taken to Phoenix and
when the gears were taken out of thetruck he again inspected them. The gears which had been
installed as new some few weeks prior were in the same shape that the old gears were in when
they were removed. The corners of the gears were rounded off, showing again that somebody
had been lamming the truck into gear Quisenberry testified with some vehemence that he
would fire his brother if he handled a transmission that way
Quisenberry explained the manner of Richins' firing at the Dixie truck stop. He said that
Richins had no phone and the only way he could contact Richins by phone was through Richins'
sister-in-law On May 25 he had tried to call Richins through the sister-in-law but had been
unable to reach him. He had already assigned another driver to take Richins' place. When he
could'nt reach Richins by phone, he waited until he saw Richins at the truck stop. He said to
Richms, "Bill, I am firing you because of that transmission " Richins said, "Well, I take it I
am fired for union activities," and walked off.
As to his proficiency in shifting gear , Richins, in his testimony, said that he had been given
a "test hop" by Bill Turner on one occasion and had a second "test hop" with Almada on
another occasion. He had passed both these tests successfully. Employee Turner also testified
that on his "test hop" Richins had shifted gears satisfactorily.
As to the hiring of Richins, Quisenberry in his testimony admitted that he had inquired about
Richins' affiliation with the Union at the timeof hire. He also admitted that he told Richins that
the Company was paying 6 cents a mile wages, while the McNutt Oil Company in El Paso, which
trucked gasoline into Arizona pursuant to a contract with the Union, paid only 5-1/2 cents a
mile Quisenberry also admitted that hedid speak to Richins about the way he would vote in the
event an election was held He admitted that he said to him on May 22, "Off the record. I
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
really shouldn't ask you, but how will you vote if we have an election." Quisenberry denied
that he told Richins or anybody else that the men were going to vote themselves out of a job.
2. The discharge of Almada
Harry M. Almada was employed by the Company from April 13, 1953, until June 3, 1953. He
testified that he first talked to Quisenberry in regard to a job on Saturday, April 11. Quisen-
berry came to Almada's home and asked him if he was looking for a job, stating that he was
starting a new operation, trucking gasoline between Lordsburg and El Paso. Almada said that
he wanted a job. Quisenberry asked him if he belonged to the Union and Almada told him that
he had a union book and 'was in good standing. According to Almada, Quisenberry'then said.
"That lets you out because I am not hiring any union men. I am hiring all nonunion men be-
cause I don't want a unionoutfit. " Quisenberry further explained that he didn't want any trouble
with the Union or to be delayed by the Union, and then suggested that Almada drop his book and
withdraw from the Union. Almada agreed to do that, if Quisenberry would hire him. Quisen-
berry then said that if Almada would promise not to instigate any union activities that Almada
could have a job as long as he wanted it. With that understanding, Almada was hired. 2
On April 13, about 7:30 a. m., Quisenberry called Almada and told him that he had a truck
waiting for him. Almada went to the Dixie truck stop, where he met Quisenberry with the truck.
Quisenberry said that he would "test hop" Almada by driving with him from Lordsburg to
El Paso. The men rode from Lordsburg to El Paso and back. In the course of the ride, Quisen-
berry explained to Almada why he didn't want the Union on the job. He said that at one time he
had belonged to the Union and that he was of an ambitious nature and that the Union had held
him back. When he started working without the Union he had made progress Quisenberry said
that the job would be a good deal without the Union. In the course of the ride to El Paso and
return, Quisenberry and Almada discussed the speed at which the trucks containing gasoline
should be driven and both agreed that 55 miles per hour was a proper Company speed limit.
They also discussed how often tires should be"bumped," a process by which all the dual tires
on the truck are kicked or hit with a tool to make sure that they are all properly inflated. All
equipment used by the Company had dual tires. This was a matter of importance because in
the event one of the dual tires went flat, the weight of the load would be taken by the remaining
tire, but as the truck was driven, friction would generate heat which would ultimately burn up
the flat tire. Both men agreed that the tires should be bumped at approximately 60-70 miles
and Almada suggested that tires should be bumped at the beginning of each run and at Las
Cruces and Deming. Quisenberry also told Almada thathe was the only one who read the tacho-
graph charts showing the speed of the trucks, and that on some occasions he might have to tell
the men to disregard the charts. Almada stated that on several occasions in the early days of
the operation the men were told by Quisenberry to disregard the charts and to get to the
refinery at El Paso before it closed. This would entail exceeding the Company's speed limit
of 55 miles per hour.
Almada was an experienced truckdriver and it is apparent that Quisenberry had a high re-
gard for Almada's ability, for soon after the operations were commenced, he asked Almada to
oversee the job at the Lordsburg end. At that time Quisenberry was making his Lordsburg
headquarters at Almada's house and frequently discussed theoperations with Almada. Almada
refused to oversee the job becausehe felt that he might get in bad with the other drivers. How-
ever he recommended other drivers to Quisenberry, who hired the men. Among them were
Bill Richins, Harry Payne, and Joe Delgado. Almada testified that he had a conversation with
Quisenberry on or about May 25, 1953, at the Dixie truck stop in reference to the firing of
Richins. This conversation has been related previously, as has another conversation between
Almada and Quisenberry in regard to Cox.
About May 15 Quisenberry called Almada at home and told him that he was on the spot; that
the "Old Man," Horace Steele, the Company's vice president at Phoenix, was mad at Quisen-
berry, and had told him to get rid of a certain man because he was union all the way through.
Quisenberry said he had asked who the man was and Steele had said that it was Harry Almada
in Lordsburg. Steele said that he wanted Almada fired. Quisenberry told Almada that he was
,.in a terrible spot," Quisenberry then told Almada that he would have to send his withdrawal
card back to Fred Bone, the union representative, and tell him that he wanted no part of the
Union. Almada said that he couldn't do that. Whereupon Quisenberry said that it was either
that, or else. Almada said that he had kept his word with Quisenberry and hadn't caused any
2 Almada and Turner were the first two drivers employed , both beginning work on April 13.
TEXAS INDEPENDENT OIL COMPANY, INC. 629
union activity. Quisenberry said that Fred Bone had told him that Almada was a staunch union
supporter and that Almada was ready the minutehe gave the word. Almada asked Quisenberry
to give him time to call Bone in El Paso because Bone had given Almada his word of honor
not to interfere in any way with the job, because Bone knew Almada needed the job very badly.
When Almada called Bone, the latter told him that he did not know Quisenberry, that he had
never met the man, or talked to him. Almada called Quisenberry back and told him what Bone
had said. Quisenberry said that he had to do something to tie his men in on one side of the
fence or the other Almada again stated that he could not let go of his withdrawal card, that he
would need it some of these days. Quisenberry said that it was either that, or else. Quisenberry
said he was going to Phoenix and would talk to the "Old Man" and when he got back he would
letAlmadaknowoneway or the other He said that meanwhile, Almada was not to take his usual
run. However when Almada's truck came in, his "breaking partner" said he had everything
fixed up and Almada was to take his regular run. This occurred around the middle of May.
Almada continued working until the day he was discharged on June 3, 1953.
Almada testified that on June 2, about 11 p. m., he went to the Dixie truck stop at Lordsburg
to fuel his truck. He had to wait while other trucks were serviced and he became worried that
he couldn't make the schedule. When he left there he tried to make up lost time. Almada ad-
mitted on cross-examination that he had been given orders to "bump" his tires about every
60 miles and that tires were to be bumped at Deming and Las Cruces. He had reached a point
between Deming and Las Cruces, about 15-17 miles west of Las Cruces, when he noticed that
something was wrong Almada stopped his truck and found that one of his tires was flat, and
had started to burn He went for his two fire extinguishers but found them dead. Two other
trucks of the Company and another truck stopped and the men took the tire off the wheel.
Almada left the tire in the desert to cool and continued his run. He went to the refinery and on
the way back he picked up the tire from the desert, and cradled it back on the trailer so
Quisenberry could see it. On his return to Lordsburg, Quisenberry called him to tell him that
Quisenberry was going to El Paso, and wanted the men there Almada told him that he would
meet him there, and told Quisenberry that he had burned a tire on the road. Quisenberry said
that he would examine thetireat Tucson. About midnight that night, June 3, Quisenberry called
Almada. He said that he couldn't have the men burning tires up and down the road, and that
George Wallsmith was going to take Almada's truck, that he had to let Almada go Almada had
no further words with Quisenberry
On cross-examination Almada stated the facts about flat tires on dual-tired vehicles, about
which there appears to be no dispute. He explained that when a tire is driven flat for an ex-
tended period of time, it smokes and smoulders until the vehicle is stopped, when the tire will
often burst into flame. Almada stated that the tire would start to burn after it had rolled about
10 miles in the heat of the day or about 15 miles at night if the truck was driven fairly fast
He also agreed that if the truck was empty it would not catch fire for a longer distance Almada
stated that he bumped his tires at Lordsburgbut not at Deming and that he was about 80 miles
from Lordsburg when he noticed that the tirewas smoking, and stopped. He also admitted that
the tire was left on the side of the road because it was smoking and too hot to be put on the
spare tire rack.
Quisenberry testified that in hiring Almada he told him that he would rather that the job be
nonunion until he had all the trucks in operation and the lines set up After all the trucks were
in operation and the lines were set up, he had said on many occasions that he did not care
whether the job was union or not. Quisenberry did not recall whether he had told Almada to get
a withdrawal card or not. He said that he did tell Almada that he wanted a smooth operation and
didn't want any bickering back and forthuntilhe got the operation started. He also corroborated
Almada as to the conversation relative to "bumping" on Almada's test hop. He had issued
orders that the tires were to be bumped at the beginning of each run and at Deming and Las
Cruces. The place where Almada's tire was taken off the truck was about 20 miles east of
Deming, so Almada had driven about 80 miles from Lordsburg without bumping his tires.
Quisenberry first saw the tire lying beside the road When he examined the tire, it was burned
up. From his experience, Quisenberry testified that to burn a tire that badly, while it was being
driven at night, on an empty trailer, would require about 35 miles of flat driving Quisenberry
also stated that the cost of a diesel cab and trailer unit is approximately $ 30,000 He also
agreed with Almada that a tire which is driven some distance flat will break into flame when
the vehicle is stopped , and added that it will also break into flame while rolling if it is driven
a long distance flat. Quisenberry saw the tire, and called Almada and discharged him He
called Almada before he made his next run and said, "Harry, I'm going to have to let you go
because of that tire." Almada said, "I take it I am fired for union activities " He said, "No,
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harry, you are fired becauseyou burned upa tire and left it lay beside the road because it was
so damn hot you couldn't get it back on the tire rack." Quisenberry stated that he employed
everyone brought to him by Almada, that he thought a lot of Almada's judgment on the capa-
bilities of drivers, and that the men recommended by Almada had been good men.
3. The discharge of Bailey
Sidney W. Bailey was employed by the Company from May 25 until he was discharged on
July 7 Bailey testified that at the time he was employed he was asked to fill out an application
blank given to him by Quisenberry One space on the application blank which asked for "Activ-
ities other than religious," he did not fill out Quisenberry asked if he belonged to the Union.
He told Quisenberry he had a union book, but that his dues weren't paid to date. Quisenberry
handed him back the application and told him to put the name of the Union in the blank space.
He complied and gave it back to Quisenberry. Quisenberry then told Bailey that he did not want
the Union in the operation. Bailey told Quisenberry that he belonged to the Union but would not
cause any trouble. Bailey also testified that he did not engage in any union activities until after
he was fired, when he signed a complaint against the Company Bailey was at El Paso when
Quisenberry called him on the phone and told him he was fired. Bailey inquired as to the rea-
son for his discharge and Quisenberry said that he was firing him for pulling the compression
release on his truck. The witness told Quisenberry that was a poor excuse. Quisenberry then
said, "Well, I have to have some sort, and it is the best one that I can think of."
On cross-examination, Bailey testified that he had pulled the compression release on every
occasion that he killed the engine, that being the proper procedure to kill the engine. When
cross-examined as to pulling the compression release when the truck was traveling at road
speed, he stated that he had pulled the compression release on one occasion when a fuel line
had broken on the motor, and the motor had run away, and on another occasion when the motor
had "taken air." Bailey testified that it was not his practice to pull the compression release
to clean out the motor, and that he had not talked to other drivers about it being proper to pull
the compression release to clean the motor . Bailey denied that at the time he was fired Quisen-
berry told him that Quisenberry had followed him while he was driving his truck and noticed
that he had pulled the compression release, and threw oil all over Quisenberry's car He also
denied that at the time of discharge Quisenberry had told him that the repair shop had called
Quisenberry concerning repairs to Bailey's truck, telling him that the motor had been ruined
by someone pulling the compression release.
Upon examination by the Trial Examiner, Bailey admitted that at the time he was fired
Quisenberry had said that the shop in Phoenix had told him that "somebody had been pulling
the compression release on the truck , and holding it open and running it downhill that way."
He told Quisenberry that the only time he ever pulled the compression release was when the
truck broke a fuel line , took air, or to kill the engine.
On cross-examination the witness also said that on the night before he was fired he was at
the 84 truck stop and pulled out his billfold which had a union button pinned in it and that he
also took from his billfold his union book where he had a slip of paper with a phone number on
it. Quisenberry was present and saw this and said to Bailey, "You still have your book? "
Bailey admitted that he had, saying thathehad to keep it because some day he might need it to
work on a union job. On examination by the Trial Examiner, Bailey said that from the time he
was hired until the night he was fired there was never any talk between him and Quisenberry
about the Union.
Joseph G. Grossheim, a truckdriver employed by theCompany, testified as a witness on the
subject of Bailey 's discharge . Grossheim testified in a clear and forthright manner . He stated
that around the end of May or the first of April he "deadheaded" a trip with Bailey, riding as
a passenger. As they drove on this occasion, Bailey and Grossheim discussed the practice of
pulling the compression release while the truck was moving down the highway Bailey said that
pulling the compression release blew the soot out of the motor and cleaned it Grossheim dis-
agreed violently. He told Bailey that such a practice would blow not only the soot, but every-
thing else out with it , and not to do it. Bailey maintained that such a practice was good for the
engine. Grossheim explained to him that all Bailey would do by pulling the compression release
was to dump out raw diesel fuel. Bailey disagreed, saying that when you pulled the compres-
sion release you could see all the black smoke pour out of the exhaust, and that it really
cleaned out the motor. The conversation ended when Grossheim asked Bailey not to do it while
he was riding with him, and told him not to do it to Grossheim's truck, if he ever drove it.
TEXAS INDEPENDENT OIL COMPANY, INC. 631
Quisenberry admitted that at the time he hired Bailey he asked him to put his union affilia-
tion on the application card . He stated that he purchased this form of application at a stationery
store in Phoenix and that the place for "Activities other than religious " was on that card at
that time . He explained that he had asked the men their union affiliation from the time he began
hiring until about 6 weeks later, when he was told by Steele , his superior , that the latter
thought the questions were in violation of the Act and that he should consult counsel for the
Company on that subject . After conferring with the Company 's counsel , he discontinued the
practice.
He said that the truck he gave Bailey to drive had a brand new engine in it, and shortly
thereafter that the truck became "sick ." That it was continually missing and breaking an
injector line , and the Company had considerable trouble with it. He had the truck taken into the
Phoenix shop for repair on two occasions . After it was in the shop for a third time, the shop
crew informed Quisenberry that someone was pulling the compression release on the truck
while it was being driven , thus ruiningtheengine . Quisenberry began checking the drivers and
he learned that Bailey had told several drivers that the way to clean the motor was to hold the
foot on the throttle going uphill , and to pull the compression release going downhill . Suspecting
that Bailey was pulling the compression release , on one night Quisenberry followed Dailey in
his own car . Quisenberry stated that he often did this to check up on the efficiency of the
drivers . He stated that on this occasion Bailey drove up a long grade just outside of Benson.
Bailey had the truck in about fourth direct, with a three-quarter throttle , when all of a sudden
a ball of black smoke came out of the truck and he could hear the motor go "cluck cluck' in
such a way that Quisenberry knew the compression release had been pulled . He let Bailey con-
tinue to El Paso, and he turned around and went back to Tucson . On the next morning he called
Bailey and told him that he had been pulling the compression release on the truck , and that he
was fired . Bailey said that he had not pulled the release , but Quisenberry replied, "Bailey, I
saw you do it."
4. The layoff of Dayton and others
Robert G. Dayton began employment with the Company on May 15 and is still employed.
When he was hired he was interrogated by Quisenberry about his union affiliation . On September
8 he was told by some of the men that there had been a layoff and that Quisenberry wanted Jen-
son and Daytonto callhim . He called Quisenberry who told him that he wanted him to lay off for
a few days . Dayton asked him the reason for his layoff Quisenberry said , " It is about those
applications you have been passing around and those tach cards ". Dayton said, "I told you all
about the tach cards. Now what applications do you mean " Quisenberry said , " Those appli-
cations you have been passing around ." Dayton testified that he supposed Quisenberry meant
union applications because he had given one application to another driver who had asked Dayton
for an application.
On September 10 Quisenberry called Dayton at his home and told him to contact all the men
that had been laid off , and to have them at the 84 truck stop as he wanted to talk to them . Dayton
asked what was up and Quisenberry replied that they were going back to work just as they had
before the layoff. Dayton asked Quisenberry what had been wrong , and he said that it was the
damn union deal, that he had received some "bum information from a damn lawyer or some-
thing like that ." When Quisenberry saw the men at the 84 truck stop , he told them that they
were all to go back to work, and operations were resumed.
Dayton testified that on several occasions he talked to Quisenberry , who told him that Mr.
Steele was a hardheaded man and that he was not going to see the job go union , and that Steele
would jack up the trucks and let them sit, before he would let the job go union
In his testimony Quisenberry made no specific reference to the incident about which Dayton
testified.
In addition to the employees who claimed specific discriminations against them , there were
several other witnesses who testified as to various events. William E . Turner testified credibly
that he began work for the Company on April 13. When he was hired , Quisenberry asked if he
was a member of the Union . Turner said he belonged to the Union, but despite this Quisenberry
hired him . Quisenberry also told Turner to send in any other drivers that he found available,
but that he wanted nonunion drivers Turner told Quisenberry that in that part of the country
if he wanted to have drivers he would have to take union drivers, as most of them were union
Quisenberry agreed that it looked as though they would have to take union men, so he told
Turner to send any men who were good truckdrivers and available , whether they were union or
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nonunion Turner gave a testhopto Richins and testified that Richins did very well considering
that he had had very little experience on heavy diesels Turner resigned from the job of his
own volition.
Alfred Jenson also testified to the circumstances of the layoff of Dayton and others. He
testified that on September 9 when he reached Phoenix there were approximately eight drivers
at the truck stop and they told him that "We have had it." They told him that Quisenberry was
going to make a change, and that word had been received that he was to call Quisenberry, so
Jenson phoned Quisenberry. Quisenberry said he was going to transfer the job to El Paso; he
also said, "Thanks for helping meout." WhenJenson asked what he had done for Quisenberry,
the letter said that Jenson had signed up all the boys in the Union. Quisenberry also said that
they were going to take all the men off but 7, and leave 7 men with 7 trucks and that if they
couldn't haul the gasoline with that numberof trucks they would ship by railroad. Quisenberry
told Jenson that he could come down and work at El Paso, but the witness said that he didn't
want to do that, so Quisenberry said, "You have had it "
Jenson testified that he was instrumental in signing men up for the Union, that he obtained
the signatures of employees to 11 applications, 7 or 8 of the men were at Tucson and the rest
at El Paso. On cross-examination as to the layoff Jenson said that on the following morning
word was receivedfromQuisenberrythatallthedrivers were to go back on their regular runs.
He also admitted that at the time of the layoff he asked Quisenberry if he was fired and that
Quisenberry had replied in the negative. He also admitted that the layoff could have been for
operational reasons. In the course of Jenson's testimony, the Trial Examiner asked to what
the above testimony was directed, and the General Counsel replied that the testimony was
directed to establishing the layoff of the group of men for a period of 1 day. This allegation of
the complaint will be referred to later.
Merrill E. Nutter testified credibly that he went to work for the Company in the first part
of May. Quisenberry asked him if he belonged to the Union and the witness told him the truth
--that he did not. Quisenberry explained to Nutter that he was running a nonunion job.
Nutter became a sort of straw boss on the job, and in late May or early June was given the
duty by Quisenberry of instructing applicants for employment how to fill out the application
blank, with particular reference to showing the applicant's union affiliation. Quisenberry also
directed Nutter to take the filled out applications of employees previously hired, to find out
their union affiliation and withdrawal card status, and to note that on the forms About this
time also, Quisenberry in a conversation with Nutter said that a man could not be fired for
union activities, but there were numerous other reasons for which he could be fired.
In the latter part of May, Nutter's authority to handle the applications of prospective em-
ployees was taken from him. Around September 7 this authority was returned to him However
he stated that he felt that his authority had not been completely restored, and he was doubtful
about his status. About the 4th of September, Quisenberry phoned and instructed him to fire
Chester Robinson. Quisenberry told him that the reason for Robinson's discharge was that
Robinson had brought some union application blanks from El Paso and was passing them out on
the job However, Quisenberry said that he had just learned that Robinson had driven his truck
over a curb, breaking the differential housing and that he was to be discharged for breaking
this housing. The housing was broken about 3 weeks to a month before this conversation.
Robinson was discharged but was put back towork when all trucking operations were resumed
after the short layoff of September 8. Nutter testified that on one occasion Quisenberry had
asked him about the union membership of Jenson and on a second occasion about that of
Richins.
H. B. Sullivan testified credibly that some time after August 21 he was interrogated by
Quisenberry as to whether he had a withdrawal card from the Union On that occasion Quisen-
berry told him that the job was nonunion. J. H. Beeson and Joe Delgado also testified credibly
as to assisting Almada with the burned tire. Two employees, Wallsmith and Sanderson, also
testified very briefly and in a credible manner.
Motion to Consider Certain Testimony
At the opening of the hearing, the General Counsel moved to amend the complaint to allege
(1) Kenneth Van Horn as being discriminatorily discharged on May 12, (2) Sidney Bailey as
being discriminatorily discharged on July 6; (3) Lloyd Hinds as being discriminatorily dis-
charged on October 1; (4) Chester Robinson as being discriminatorily laid off for 6 full days
beginning on or about September 4, 1953; (5) Robert Dayton as being discriminatorily laid off
for 2 full days beginning September 8, 1953, and (6) employees Nutter, Jenson, Saner, Parker,
TEXAS INDEPENDENT OIL COMPANY, INC. 633
and Buchannan as being discriminatorily laid off on September 9 for 1 full day, and to amend
certain dates which were typographical errors.
Over the objection of the Respondent, the Trial Examiner permitted all of the amendments,
stating that in the event the Respondent pleaded suprise, the Respondent would be afforded an
opportunity to prepare to refute any of these new allegations.
At the close of the General Counsel's case, the General Counsel moved to strike the name of
Lloyd Hinds from the complaint In the course of the hearing it developed that Hinds had been
laid off while his truck was being repaired, and that the Company had been endeavoring to get
in touch with Hinds to notify him that the repairs had been completed and that his services were
required He left the hearing room to go back to work The General Counsel stated that it had
developed that Hinds had not been discriminatorily laid off.
The General Counsel also moved to strike from the complaint all reference to the dis-
criminatory layoff or discharge of Chester Robinson, and all reference to the discriminatory
layoff on September 9 of the five men named above. There being no objection from the
Respondent, these motions to strike were granted by the Trial Examiner, and the Respondent
then put on its case.
After the evidencewas closed the General Counsel in the course of his oral summation stated
that, although he had moved to strike theabove-mentioned allegations from the complaint, and
to removethemas issues fromthecase, he requested the Trial Examiner to consider the testi-
mony submitted to support these allegations, as bearing on the remaining issues in the case
The Respondent objected. He pointed out that the allegations had been stricken and the charges
dropped at the end of the General Counsel's case, and that consequently the Respondent had
not offered any evidence to rebut the testimony, in the belief that the allegations and Charges
had been dismissed In his argument, counsel for the Respondent pointed out that without the
allegations being in the complaint, much of the testimony admitted under the allegations would
have been irrelevant to the remaining allegations, and would have been inadmissible on proper
objection.
The Trial Examiner indicated that he felt that the position of the Respondent was correct,
but that he would rule on the question in his Intermediate Report. I have considered the motion
very carefully and have decided that substantial justice requires that I consider all the testi-
mony as it bears on the allegations of violations of Section 8 (a) (1) of the complaint, for that
purpose all of the testimony has relevancy; and that I not consider the testimony introduced to
support allegations of discriminatory dischargeor layoff, which were later stricken, as bearing
on allegations of discriminatory discharge or layoff, remaining in the complaint, for as to those
allegations the testimony would not be relevant. For that reason I have not considered the
testimony of Nutter on the subject of Robinson's layoff, the testimony of Hinds as to his layoff,
or the testimony of Jenson as to the layoff of the five named men, including Dayton, as having
proper bearing on the cases of the remaining men, allegedly discriminatorily discharged or
laid off. All testimony has been considered on the issues of Section 8 (a) (1) and all testimony
except the above on issues of Section 8(a) (3). To that extent, the General Counsel's motion is
granted.
Concluding Findings
a. Interrogation , restraint , and coercion
From the testimony narrated above, it is established, and not seriously disputed, that in the
period covered by the testimony the Respondent by the conduct of Quisenberry violated Section
8 (a) (1) of the Act by interfering with, coercing, and restraining the Company's employees in
the exercise of the rights guaranteed to them by Section 7 of the Act Many of the employees
testified credibly that Quisenberry interrogated them as to their union membership and stand-
ing at the time of hire. Furthermore he urged, or ordered, various of the employees to refrain
from union activities or active union membership, and in Almada's case exacted a promise
that the employee would refrain from union activities before the employee was hired In
practically all hiring, Quisenberry by his procedure left the strong inference in the minds of
the employees that their employment resulted from the fact that they were either not in good
standing in the Union, or not inclined to promote union activities on the job, and that their
chances of continued employment would be seriously affected by their engaging in union activ-
ities. Many employees testified to this conduct of Quisenberry in the hiring procedure, and by
a rather general admission, and further admissions as to specific conversations, Quisenberry
corroborated this testimony. It is also apparent that this conduct of Quisenberry occurred not
6 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only at the time of original hire of the various employees, but continued for a considerable
period of time after the inception of the trucking operation. From the evidence it is clear, and
I find, that the instances of interrogation, restraint, and coercion were not isolated, but were
part of a pattern or plan designed by Quisenberry to thwart any organizational activity on the
part of the employees. In his testimony Quisenberry stated that he pursued this course because
to some extent he was ignorant of the law, and inexperienced in labor matters He further
testified that it was his desire to keep the job nonunion, if possible, until such time as it was
well established I do not credit this testimony of Quisenberry that his intention and desire
were so limited. On all the evidence in the case, Quisenberry's intention appears to have been
to keep the job unorganized as long as possible. But even if his intention and purpose were so
limited, that fact demonstrates the utter illegality of Quisenberry's conduct. The rights guar-
anteed to employees by Section 7 of the Act cannot be suspended by an employer to suit the
employer's pleasure or purposes. Whether the interference, restraint, or coercion imposed
by the employer is intended to be effective for 1 day, 1 month, 1 year, or forever, it is viola-
tive of the rights of the employees
On the basis of the credited testimony of employees named hereafter in specific findings and
of Quisenberry, I find that in the hiring procedure Quisenberry put into effect a plan to keep
the men from engaging in union activities, and that this plan was violative of Section 8 (a) (1)
of the Act.
Specific Violations of Section 8 (a) (1)
I also find specific violations of the Act, as follows 3
Upon the basis of the credited testimony of Almada and Quisenberry, I find that the Respond-
ent interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the
Act, by the following conduct of Quisenberry:
(a) By his interrogation of Almada on April 11, 1953, in which Quisenberry asked Almada
about his union affiliation and told the prospective employee that the Respondent sought to hire
only union men, and by exacting from the employee a promise that the employee would not in-
stigate any union activities on the job in the event he was hired,
(b) By stating to Almada on approximately May 30, 1953, after employee Richins had been
discharged, that Richins was a good fellowbutthat the Company could not use him because the
Company did not want anything to do with the Union, and because Richins would vote for the
Union;
(c) By stating to Almada on May 24, 1953, that employee Cox had lied to him when he had
inquired if the employee was a member of the Union, and that later Cox had borrowed $ 20 from
hi and that he had no use for a man like that, so he had discharged the employee, and
(^d) By instructing Almada on or about May 15, 1953, to have nothing to do with the Union,
and by telling the employee that he would have to send his withdrawal card to the Union, and tell
the Union that he wanted no part of it.
Upon the credited testimony of Cox and Quisenberry, I find that the Respondent interfered
with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act by
Quisenberry's interrogation of Cox on May 15,1953, in which Quisenberry asked Cox if he was
keeping up his union book.
Upon the credited testimony of Jenson and Quisenberry, I find that the Respondent in like
manner violated Section 8 (a) (1) of the Act by Quisenberry's interrogation of Jenson on April
12 as to the union affiliation of both Jenson and Cox and his statement that they would be em-
ployed inasmuch as they were not members in good standing of the Union
Upon the credited testimony of Johnson and Quisenberry, I find that the Respondent in like
manner violated Section 8 (a) (1) of the Act, by Quisenberry's interrogation of Johnson as to
his union affiliation on or about April 25.
Upon the credited testimony of Richins and Quisenberry, I find that the Respondent in like
manner violated Section 8 (a) (1) of the Act, by Quisenberry's interrogation of Richins on or
about April 1 as to Richins' union affiliation and his statement to Richins that he was looking
for nonunion drivers, and paid better than union scale to keep the job nonunion, and by his in-
terrogation of Richins on May 22 as to how Richins would vote in the election.
Upon the credited testimony of Turner and Quisenberry, I find that the Respondent in like
manner violated Section 8 (a) (1) on April 13, by Quisenberry's interrogation of Turner and
3 Discussion of the credibility of employees and Quisenberry is given hereafter to avoid
repetition.
TEXAS INDEPENDENT OIL COMPANY, INC. 635
Johnson as to their union affiliation, and Quisenberry's instruction to the last-named employee
to stop paying his dues in the Union.
Upon the credited testimony of Bailey and Quisenberry, I find that the Respondent in like
manner violated Section 8 (a) (1) onMay 25„by Quisenberry's interrogation of Bailey as to his
union affiliation and his instructions to Bailey to note on his application for employment the
fact that he belonged to the Union.
The violations of Section 8 (a) (1) found above, were alleged substantially in paragraph 8 (a)
through (p) of the complaint Each allegation has been examined in the light of all the evidence,
and the findings set forth above represent the extent to which I have found the allegations
established by the credible evidence Such portions of the allegations set forth in paragraph 8
(a) through (p) not specifically found above, are hereby expressly not found on the ground that
they are not supported by sufficient credible evidence.
b. Discriminatory discharges and layoffs
In reaching a determination as to the legality of the discharges, as hereafter expressed, I
have considered and weighed all the evidence as bearing on each discharge because the motive
for the discharge of each employee is a question of fact, which must be determined in the same
manner as all other questions of fact, on the evidence in the case as a whole.
The determination of these questions of fact involves a weighing of the inference of discrimi-
nation arising from Quisenberry's antiunion conduct and other evidence, as against Quisen-
berry's testimony and other evidence that thedischargeswere for cause. His antiunion conduct
has been found above, so comment on his standing as a witness is appropriate at this point.
In my judgement Quisenberry was a reliable witness within certain well-defined limits. He
frankly admitted that he had interrogated employees as to their union affiliation and good
standing, and had urged them to refrain from union activities for a limited time. He made
further admissions, against the Respondent's interest, as to certain specific conversations
with employees, which established certain violations of Section 8 (a) (1) of the Act. Because
these admissions went beyond that required to establish a tactical appearance of candor, I
deemed Quisenberry a reliably witness as to many features of his conduct in the hiring pro-
cedure, and resolved in Quisenberry's favor, certain conflicts in testimony between Quisen-
berry and the employees, as to what was said in particular incidents. That the findings of
violation of Section 8 (a) (1) are not as broad as those alleged in the complaint, is due in a
large measure to the credit I have attributed to Quisenberry's testimony. But when the alleged
discriminatory discharges and layoffs are the subject of inquiry, Quisenberry's frankness and
candor are much less pronounced. In my judgment, at that point Quisenberry' s personal
interest, and his employer's interest, exerted such an influence that his testimony became much
less reliable Some parts I have credited, and other parts I have rejected, based on the testi-
mony of the case as a whole, and on Quisenberry's demeanor, bearing, and appearance as he
testified as to the seven different charges of alleged discrimination
The dischargeof Van Horn: Van Hornas a witness impressed the undersigned very favorably.
On both direct and cross-examination he testified in a clear and forthright manner which
carried conviction to the auditor . I credit Van Horn's testimony fully. Quisenberry in his testi-
mony on this subject admitted that he had discussed with Van Horn, just prior to his discharge,
the fact that Van Horn had engaged in a conversation with the "Old Man" at Blakely No. 1
gasoline station on the previous day. Quisenberry's admission affords some corroboration to
the testimony of Van Horn. On the basis of Van Horn's and Quisenberry's testimony, I find that
Van Horn was discharged becauseQuisenberry or his superior suspected Van Horn of engaging
in union or concerted activities, and not because Van Horn was tardy in attendance on his
scheduled runs. In reaching this conclusion I have given some weight among other things to the
fact that Quisenberry at a later date rehired Van Horn, an act which would be consistent with
Van Horn's testimony that Quisenberry in his discharge had given Van Horn a "chicken deal,"
and would be entirely inconsistent with Quisenberry's testimony that Van Horn was so unde-
pendable that his employment could not be continued.
The discharge of Cox. Much of Cox's testimony I cannot and do not credit. As a witness he
appeared to be an ardent advocate of his own cause, interested in the event, and vindictive to-
ward Quisenberry. I am convinced that Cox's interest and animosity to Quisenberry led him to
exaggerate certain features of his testimony, and to fabricate other portions which he thought
would round out the whole of his testimony to his own advantage I credit his testimony that
when he applied for a job Quisenberry interrogated him about his union membership and that
Cox lied to Quisenberry, concealing from the latter that he was a fully paidup member in the
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. I also credit his testimony that at the time of his discharge Quisenberry gave as the
reason for his discharge the fact that Cox had driven in excess of the Company's speed limit.
However, I do not credit that portion of Cox's testimony in which he stated that Quisenberry
said that he had received a letter from the Union and thrown it in the wastebasket; or said
that seeing that Cox was undecided how he would vote, he should get a union job, or that
Quisenberry said that he knew that he couldn't fire a man for joining a union, but that he would
find a reason for discharging Cox and make it stick. Nor can I credit, that after being dis-
charged in the manner which Cox related, that on the following day Cox confronted Quisenberry
with the question, "What the hell did you fire me for" " Nor do I credit that at that time Cox
charged Quisenberry with firing him for his membership in the Union, and that Quisenberry
admitted the discriminatory nature of Cox's discharge. This testimony is highly implausible,
and when considered in relation to the demeanor and bearing of the witness, must be rejected
as a fabrication born of Cox's interest and vindictiveness.
Despite the fact that I do not credit much of Cox's testimony, it is established by the credited
testimony of both Cox and Quisenberry that Cox was ostensibly discharged for speeding, and
the question still remains, was that the real reason for the discharge
From all the evidence it is clear that, at the time of Cox's discharge in the early days of
the trucking operation, the Company's speed limit was more honored in the breach than in
the observance by the drivers. At that time the closing hour for the refinery at El Paso im-
posed a hardship on the operations, inasmuch as the men were hard-pressed to reach the
refinery before it closed for the day. Several of the drivers and Quisenberry stated that on
several occasions Quisenberry told the drivers to get to the refinery on time, even if it
entailed violating the Company's speed limit. In view of those circumstances, the speeding
by Cox does not appear to be a matter of much gravity, although speeding would certainly
not be a trivial offense. In the light of all the circumstances, I conclude that the speeding of
Cox was not a very compelling reason for his discharge, for in all other respects he appears
to have been an efficient and competent driver. In my judgment the testimony of Almada,
which I credit, focuses much light on Quisenberry's real reason for discharging Cox. It is
clear that Quisenberry had approached the hiring of men for the job in a most realistic
manner . He realized that in Texas and Arizona, to obtain efficient truckdrivers he would have
to take some truckdrivers who belonged to the Union, From the hiring procedures used by
Quisenberry, it is apparent that he wished to hire men who were nonunion , or men who, if
they had been union in the past, were not actively engaged in union activities at the time of
hire. According to Almada, Quisenberry was angered by the knowledge that he had hired Cox,
who was a member in good standing of the Union, and who had lied to Quisenberry about his
membership in the Union in the course of his interview before hire. According to Almada,
Quisenberry stated that he feared trouble from Cox later on. Under the circumstances that
seems to be a natural reaction for Quisenberry, who then realized that he had hired an active
adherent of the Union who did not hesitate to lie to gain his own ends. In hiring other men,
Quisenberry by his hiring procedure had made reasonably sure that the men would not engage
in union activities, at least for some time. Undoubtedly Quisenberry felt that Cox constituted
a prospective threat to Quisenberry's determination to keep the job nonunion.
I deem it also significant that Quisenberry admitted that in the interview with Cox; at which
Cox was discharged, Quisenberry asked the employee if he was still keeping up his union
book.
Perhaps it is true that the point which particularly angered Quisenberry was that Cox had
lied to him about his union affiliation, but as I view that incident, Quisenberry had no right
to interrogate Cox about his union affiliation, and if Cox gave Quisenberry a lie in answer
to his illegal interrogation , that did not give Quisenberry the right to discharge Cox.
In his brief, counsel for the Respondent makes much of the fact that Cox lied to Quisenberry
about his union membership at the time he was hired. Under the circumstances of Quisen-
berry's interrogation and Cox's answer, I do not consider Cox's untruthfulness such an ethical
offense as would destroy his credibility as a witness I view Cox's untruthfulness as a witness
as-a much more serious offense However, on the preponderance of the credible evidence I am
constrained to find that Cox was discharged because he was a paid-up member of the Union,
and not because he had violated the Company's speed limit.
The discharge of Johnson. As to the facts of this discharge I accept Quisenberry's testi-
mony and reject that of Johnson. From the testimony of both men, it is certain that on the
day of Johnson's termination, no specific words of discharge were addressed to Johnson by
Quisenberry. When the fact became apparent in the course of his testimony, Johnson then
stated that he had been told by Quisenberry many times that he would have to either drop his
TEXAS INDEPENDENT OIL COMPANY 637
union book or else. Prior to that point in his testimony, Johnson had testified several times
that, from the day on which he was hired until the day of his termination, Quisenberry had
not talked to him about the Union or his membership therein. I am satisfied that Johnson's
first version, that Quisenberry and he had not discussed the Union or his membership, is
the truth of the matter, and that his assertion that on many occasions he was told that he
would have to drop his union book to work for the Company is a fabrication born of Johnson's
self-interest and partisanship. Nor do I credit the testimony of either Cox or Johnson that on
an occasion after both had been fired, Quisenberry voluntarily told the men at the truck stop
that in the event the job went union, he would like to have both men back. Viewed in the light
of all the evidence, taking into consideration Cox's demeanor as a witness and Johnson's con-
tradictory statements , I find that testimony to be unacceptable.
On the evidence as a whole, I find that Johnson voluntarily walked off the job, quitting his
employment on May 15, 1953. On cross-examination Johnson reluctantly admitted that he was
late for his scheduled run and that another driver had been dispatched on his run. Evidently
he believed that when someone else was dispatched on his truck because of his tardiness that
he was discharged by that act. Even if that portion of his testimony which I have rejected
were accepted, arguendo, that on many occasions he had been told that he would have to give
up his book or else, that course of conduct by the employer, would not give Johnson the right
to anticipate his discriminatory discharge, walk off the job, and file a charge with the Board,
which would seek his reinstatement and pay for time he had not worked. I can discern no
facts in this record upon which the theory of constructive discharge could be properly predi-
cated.
The discharge of Richins This employee, on the whole, testified in a creditable manner.
Richins and Quisenberry both testified that Richins was ostensibly discharged because of
transmission failure experienced in his truck.
Richins stated that he had experienced transmission failure only once and that after the
truck was repaired, he had no further trouble with it until he was discharged Quisenberry
testified very clearly on this point. He said that "when the truck was brought down" to Tucson,
it had a rattling fifth gear, so the Company put the truck in the shop to have a new fifth gear
installed. While the transmission was out of the truck in the shop, Quisenberry saw the gears
of the transmission and except for the fifth gear they were in good shape. However, shortly
after the truck was returned to service with Richins, the fifth gear dropped out at Lordsburg,
and it was necessary to return the truck to the shop . When the transmission came out on this
occasion, Quisenberry saw it again, and noticed that all teeth in gears Nos 1 through 5 were
rounded off. A brand new transmission was installed in the truck , and it was given back to
Richms. A short time thereafter the truck again displayed a rattling fifth gear. At that point,
according to Quisenberry, he decided that of the three drivers working on this truck, Richins
was the least experienced , and that it was Richins who was damaging the transmission, so
he fired Richins. After Richins was fired he had the truck taken to Phoenix, and upon ex-
aminition of the transmission he found all gears Nos. 1 through 5 in the same condition as
before, the corners rounded off.
Quisenberry's testimony, at first glance, appears to establish his contention that Richins
was discharged for cause . But there are other facts in this record that rise to challenge his
testimony. One of these facts, undisputed in the record, is that the truck in question, truck
No. 11, had a higher-gear ratio than two other trucks of the same make used by the Company,
and that shortly after Richins' discharge a set of gears of lower ratio was installed in this
truck, because it was found that the higher gear ratio was unsuitable to the heavy duty per-
formed by the trucks. On cross-examination Quisenberry admitted that the larger gears were
found necessary and installed. Thus it appears very questionable that Richins' lack of ex-
perience had anything to do with the transmission failure or failures in truck No. 11. A second
fact of importance is that Richins was discharged before Quisenberry inspected the gears for
the second time and not afterward. Thus, Quisenberry's knowledge of the condition of the
gears on the occasion of the second overhaul could not possibly have played any part in his
decision to discharge Richins. So, the undisputed facts as to the transmission failure at the
time of Richms' discharge, are these: (1) At the time truck No. 11 was brought to Tucson
and put in service, it had a rattling fifth gear , with which the evidence does not connect
Richins in any way. (2) Because of the rattling fifth gear, a new fifth gear was installed, and
the other gears on examination were found to be in good condition (3) After truck No. 11
was returned to Richins, the fifth gear dropped off at Lordsburg, and the transmission was
torn down again This time, examination revealed , that in addition to the broken fifth gear all
other gears were rounded off, so a whole new transmission was installed . (4) After the truck
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was returned to Richins and a few trips made, the fifth gear rattled again. (5) Quisenberry,
then decided that Richins' lack of experience was the cause of the mechanical failures, and
discharged Richins (6) On overhaul, all gears were found to be rounded off, as on the prior
overhaul (7) Ashort time thereafter, upon further trouble with the transmission, a whole new
set of gears with a lower gear ratio was installed in the truck. This repair gave the truck
the same gear ratio as on other trucks of the same type and make which were functioning
satisfactorily.
When these facts are fully appreciated, it then appears that Richins' driving, or lack of
experience, had little or nothing to do with the transmission failures in truck No. 11. The
failures preceded his handling of the truck and continued after his discharge, and it was
finally determined that what the truck needed was a set of gears of a lower ratio, which were
more suited to the heavy duty which the truck was required to perform.
However , this leaves our examination in this position . Although it appears questionable
that Richins was really to blame for the mechanical failures, did Quisenberry honestly believe
him to be at fault, and thus discharge him for cause, even if mistakenly9
From Quisenberry' s testimony , and all other evidence in the case , I am satisfied that
Quisenberry was an experienced and alert operator of the truck line, and that he appreciated
the true condition of truck No. 11, and the reason for its periodic transmission failures, at
and before the time he fired Richins. An experienced diesel operator like Quisenberry must
have appreciated the significance of the different gear ratios in the trucks , when two trucks
of the same type and make with low gear ratios gave him satisfactory service on heavy duty
work, and a third of the same make and type but with a higher gear ratio continually broke
down.
The fact that larger gears were installed shortly after Richins' discharge is an established
fact that throws considerable doubt on Quisenberry's claim that he believed the employee
responsible for the damaged transmissions. Also, if Quisenberry believed that some driver
caused the damage, how was the blame placed on Richins of the several drivers who drove
truck No. 11? Quisenberry's testimony is thatheplaced the blame on Richins because Richins
was the least experienced of the drivers, because he had ridden with the other drivers and
found them to be good drivers, and because he judged the other drivers to be better than
Richins, with whom he had never ridden.
Opposed to Quisenberry's testimony and the facts as to the damaged transmission, there
is other testimony. Both Almada and Richins testified that 3 days before Richins' discharge,
Quisenberry asked Richins in Almada' s presence how Richins would vote in the election, and
that Richins had said he wouldn't cut off his nose to spite his face. Quisenberry admitted this
interrogation of Richins. At that time, 3 days before his discharge, Quisenberry was much
more interested in Richins' vote in the election than he was in the young man's ability as a
truckdriver. Also, Almada testified credibly that after Richins was fired Quisenberry told
him that he hated to fire Richins, but that he had to, because Richins would vote against him
in the election.
On all the evidence in the case, I find that it is not established that Richins' inexperienced
and inexpert driving caused the damage to truck No. 11. I also find that Quisenberry seized
the continuing trouble with the transmission as a pretext to discharge Richins, who he feared
would "vote against him" in the election, and that he did not believe that Richins' inexpert
driving had caused damage to the truck
The discharge of Almada• This employee was by far the most impressive of the General
Counsel's witnesses - Almada appeared to be an intelligent and alert young man, and he testi-
fied in a forthright and convincing manner. Although he appeared displeased with much of
Quisenberry's conduct about which he testified, he evinced no vindictiveness toward Quisen-
berry, and appeared to testify with fairness to all concerned in the proceeding I credit
Almada's testimony
From all the testimony, including that of Almada and Quisenberry, it is clear that Quisen-
berry considered Almada to be the leading adherent of the Union among the men. From all
the testimony it is likewise clear that Almada was respected by his fellow-employees and by
Quisenberry. As a result of Almada's preeminence, he was particularly the target of much
of Quisenberry's antiunion conduct. Almada's uncontradicted testimony establishes that
Quisenberry feared that Almada would lead the men into the Union, and for that reason he took
stronger countermeasures with Almada than with any other man. This conduct of Quisenberry
gives rise to the strongest kind of inference that Almada's discharge, in reality, arose from
Quisenberry's fear that Almada constituted an obstacle to Quisenberry's efforts to keep the
job nonunion.
TEXAS INDEPENDENT OIL COMPANY, INC. - 639
However, counterbalancing this strong; nference are two facts which I deem of preponderant
weight. The first is that though Quisenberry on several occasions displayed the utmost anxiety
about Almada's position relative to any union activity, he apparently was satisfied by Almada's
continual reassurance that in good faith the employee was keeping his promise not to in-
fluence the other men. The second fact, of greater weight, which is not disputed, is that Al-
mada violated the Company's rule as to bumping tires, burned up a tire on the road, and
endangered $30,000 worth of the Company's equipment. It is likewise undisputed that after
Quisenberry saw how badly the tire was burned, and learned that it had been left in the desert
because it was too hot for the tire rack of the truck, he phoned Almada and discharged him,
On all the evidence in the case, Ifind that this tire was burned and the equipment endangered
because Almada had not bumped his tires as required by the Company's rules. I find that the
positive proof that the tire was burned, coupled with Quisenberry's testimony on this point
which I credit, outweighs the inference arising from Quisenberry's antiunion conduct I find
therefore that Almada was discharged for cause.
The discharge of Bailey Quisenberry testified credibly that he discharged Bailey because
that employee was pulling the compression release on his truck, under the mistaken belief
that it cleaned the motor, when in reality this practice was ruining the motor. Quisenberry
explained that when considerable repairs were needed on Bailey's truck, and the repair shop
told Quisenberry that pulling the compression release while rolling was the cause of the
trouble, he initiated an investigation among the drivers and learned that Bailey claimed this
practice cleaned the motor. To confirm his suspicions, he followed Bailey one night and heard
the employee pull the compression release. Before Bailey's next run Quisenberry discharged
the employee.
Joseph G. Grossheim, an employee-witness who testified in a very credible manner, told of
an occasion when Bailey advocated the practice of pulling the compression release to clean
out the motor in a conversation with him.
Bailey as a witness did not impress the undersigned favorably. He appeared highly interested
in advancing his own cause, and at one point I deem his testimony untruthful. Bailey denied
that he had ever pulled the compression release at improper times, but these denials were
not convincing. It appears from all the testimony as to Bailey that he was not outstanding in
any way among the drivers, and had not participated in any union activities while on the job.
To account for Quisenberry's discrimination against him, Bailey testified that on the night
before his discharge he was in the 84 truck stop with Quisenberry and some other drivers.
On this occasion, he took out his wallet which had a union button pinned in it, and he also
took from his wallet his union book which had a phone number he desired, that Quisenberry
saw the button and the book and said to Bailey, "You still have your book? " And on the follow-
ing day discharged him. On being questioned by the Trial Examiner, Bailey testified that from
the time he was hired until that night, he and Quisenberry had never discussed the Union. I
cannot, and do not, accept the testimony of Bailey as to the incident at the 84 truck stop. The
fortuitous combination of circumstances related by Bailey, places too heavy a stram on my
credulity. Heretofore, I have noted that I credit Bailey's testimony as to Quisenberry's pro-
cedure in hiring him.
On the evidence in the case as a whole, and particularly on the credited testimony of Quisen-
berry and Grossheim as related above, I find that Bailey was discharged for cause.
The layoff of Dayton: This employee testified in a creditable manner. I accept his testi-
mony fully Dayton testified that when he was laid off, Quisenberry in a telephone conversa-
tion told him that he was laid off because of some tachograph charts and the "applications
you have been passing around " When Dayton was notified by Quisenberry to return to work,
Quisenberry gave as his reason for the layoff that he had received "some bum information
from a damned lawyer," and that the layoff was due to the "union deal." As noted heretofore,
the Respondent offered no evidence on this layoff. On the testimony of Dayton, viewed in the
light of all the evidence, it would appear that the layoff of Dayton was caused by some de-
cision which was taken by the Company because of the union activity among the men, which
decision was later reversed for some unknown reason. But neither the testimony of Dayton
nor the case as a whole sheds further light on why the layoff occurred or ended. What Quisen-
berry said in laying off Dayton, and what he said in returning him to work, raises a strong
suspicion that the layoff was a reprisal by the Company against the men, or some other sort
of discriminatory measure. However, strong suspicion is not sufficient to support the allega-
tion that this layoff was discriminatory. On the evidence as a whole, including the credited
testimony of Dayton, I find that the evidence is insufficient to establish that this layoff was
discriminatory in nature
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I further find that the discharges of Van Horn, Cox, and Richins, as found above, constitute
violations of Section 8 (a) (1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, to the extent that they have
been found to constitute unfair labor practices , occurring in connection with the operations of
the Respondent described in section I, above, have a close, intimate, and substantial relation
to trade, traffic , and commerce among the several States and tend to lead to labor disputes
burdening and obstructing commerce, and the free flow of commerce, as defined in Section
2 (6) and (7) of the Act.
V. THE REMEDY
Since it has been found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist from said unfair labor practices and take
certain affirmative action designed to effectuate the policies of the Act
Having found that the Respondent discriminated with respect to the hire and tenure of em-
ployment of Kenneth L. Van Horn, E. W. Richins, Jr., and John Cox by discharging them
because of their union and concerted activities, it will be recommended that Respondent offer
to the named employees immediate and full reinstatement to their former or substantially
equivalent positions , 4 without prejudice to their seniority or other rights and privileges, and
make them whole for any loss of earnings they may have suffered by reason of the Respondent's
discrimination against them, computed in accordance with the formula stated by the Board in
F. W. Woolworth Company, 90 NLRB 289. It will also be recommended that the Respondent
make available to the Board, upon request, payroll and other records to facilitate the checking
of the amount due
Upon the basis of the foregoing findings of fact and upon the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 310, AFL, is a labor organization within the meaning of Section
2 (5) of the Act.
2 By discriminating in regard to the hire and tenure of employment of Kenneth L. Van
Horn, E. W. Richms, Jr., and John Cox, thereby discouraging membership in a labor organi-
zation , Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1)
and (3) of the Act.
3. By 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
practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent did not discharge Harry M. Almada, William J. Johnson, or Sidney W
Bailey for discriminatory reasons as alleged in the complaint.
6. The evidence is insufficient to establish that the layoff of Robert G. Dayton was dis-
criminatory in nature as alleged in the complaint.
[Recommendations omitted from publication.]
4 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 827. Reinstatement of Van Horn is recommended because though he was rehired, the
record does not disclose whether or not he was restored to his former position, with all
rights and privileges.
APPENDIX
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, as amended,
we hereby notify our employees that:
R. J. OIL & REFINING CO., INC. 641
WE WILL NOT discourage membership in International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America , Local Union NO. 310, AFL, or any
other labor organization of our employees , by discriminating in regard to their hire or
tenure of employment or any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain , or coerce our employees in the
exercise of their right to self-organization , to form, join , or assist International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , Local Union
NO. 310, AFL, or any other labor organization , to bargain collectively through repre-
sentatives 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
in Section 8 (a) (3) of the National Labor Relations Act.
WE WILL offer to Kenneth L. Van Horn, E. W. Richins, Jr., and John Cox immediate
and full reinstatement to their former or substantially equivalent positions , without prej-
udice to any seniority or other rights and privileges previously enjoyed, and make them
whole for any loss of pay suffered as a result of discrimination against them.
All of our employees are free to become or remain members of the above-named union or
any other labor organization. We will not discriminate against any employee because of
membership in or activity on behalf of any such labor organization.
TEXAS INDEPENDENT OIL COMPANY, INC.,
Employer.
Dated ................ By..............................................................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
R. J. OIL & REFINING CO., INC. and OIL WORKERS INTER-
NATIONAL UNION, CIO and DISTRICT 50, UNITED CON-
STRUCTION WORKERS OF AMERICA, AND ITS LOCAL
13695, affiliated with UNITED MINE WORKERS OF AMERICA,
Party to the Contract . Case No. 35 -CA-293. April 30, 1954
DECISION AND ORDER
On June 29, 1953, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding finding
that the Respondent had engaged in and was engaging 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.
He also found that the Respondent had not engaged in certain
other alleged unfair practices and recommended the dismissal
of those allegations. Thereafter, the Respondent, District 50,
the General Counsel, and the charging Union filed exceptions to
the Intermediate Report, with supporting briefs.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, exceptions, briefs,
108 NLRB No. 103.