Anchortank, Inc.

National Labor Relations Board - Board Decisions

Nov 4, 1977

233 N.L.R.B. 295 (N.L.R.B. 1977)

ANCHORTANK, INC.
Anchortank, Inc. and Oil, Chemical and Atomic
Workers International Union. Case 23-CA-6292
November 4, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On July 5, 1977, Administrative Law Judge John P.
von Rohr issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,'
findings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order, except
that the remedy is modified so that interest is to be
computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977).2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Anchortank,
Inc., Texas City, Texas. its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
I We reject Respondent's contention that the Administrative Law Judge
erred in asserting jurisdiction. Respondent, while entering a general denial
to the complaint's conclusionary allegation of commerce, admitted that it is
a Texas corporation and that during the 12 months preceding the hearing it
purchased goods valued in excess of S50.000 from firms located outside the
State of Texas. Based on the above facts, the Administrative Law Judge
found that Respondent is engaged in commerce within the meaning of the
Act. Subsequent to the hearing, Respondent took the position that its
operations fall under the category of an instrumentality, link, or channel of
interstate commerce, and that. under the current jurisdictional standards
utilized by the Board. jurisdiction should not be asserted.
We find no merit in that contention. Since Respondent admitted the
jurisdictional facts alleged in the complaint, General Counsel was not
required to adduce further evidence to prove that Respondent was engaged
in commerce. In addition, at the hearing Respondent introduced no
evidence, and proffered no argument, to indicate that the jurisdictional
standard alleged in the complaint was inapplicable. Thus, the Adrministra-
tive Law Judge's utilization of that standard was proper. Furthermore. in a
recent case before the Board, involving the same parties, Anchorrank, Inc.,
Case 23-RC4461 (1977) (not reported in bound volumes of Board
Decisions), Respondent stipulated to. and the Board asserted, jurisdiction
based on the same standard applied herein. See also St. Peter's School, 220
NLRB 480. fn. 2 (1975). Finally, while a question concerning the Board's
statutory jurisdiction may be raised at any time, it is well settled that the
issue of jurisdiction under the Board's discretionary standards must be
timely raised. In the instant case, the existence of the Board's statutory
233 NLRB No. 52
jurisdiction is clear and uncontested, and Respondent did not question the
propriety of the discretionary jurisdictional standard alleged in the
complaint until after the hearing had closed. Under these circumstances, we
conclude that, in any event, Respondent may not raise now the question of
whether assertion ofjunsdiction is appropriate in this case. Pollack Electric
Co.. Inc., 214 NLRB 970 (1974); Travel Rest, Inc. d/b/a Gateway Motor
Lodge, 222 NLRB 851 (1976).
2 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Administrative Law Judge: Upon a
charge filed on November 15, 1976, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 23, issued a complaint on December
20, 1976, against Anchortank, Inc., herein called Respon-
dent or the Company, alleging that it had engaged in
certain unfair labor practices in violation of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended,
herein called the Act. Respondent filed an answer denying
the allegations of unlawful conduct alleged in the com-
plaint.
Pursuant to notice, a hearing was held before me in
Galveston, Texas, on March 1, 1977. Briefs were received
from the General Counsel and Respondent on April 18,
1977, and they have been carefully considered.
Upon the entire record in this case, and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Texas corporation with its principal
office and place of business located in Bayport, Texas, and
a facility in Texas City, Texas, where it is engaged in bulk
liquid storage terminal operations involving the loading
and unloading of ships, tank cars, and tank trucks. Only
the Texas City, Texas, facility is involved in this proceed-
ing. During the 12 months preceding the hearing herein,
Respondent purchased goods valued in excess of $50,000
from firms located outside the State of Texas, which goods
were shipped to Respondent from points outside the State
of Texas. I find that Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
Oil, Chemical and Atomic Workers International Union,
herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issue in this case is whether Respondent
discharged employees Pete Mancuso and Neal Jackson, Jr.,
in violation of Section 8(a)(1) and (3) of the Act. The
complaint further alleges that Respondent engaged in
certain conduct independently violative of Section 8(aX)(I)
of the Act.
295
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Supervisory Status of James Luhning and
John Jackson
Denying that the above-named individuals are supervi-
sors within the meaning of Section 2(11) of the Act,
Respondent contends they acted only in the capacity of
leadmen.
Respondent's employees are engaged in pumping chemi-
cals and in the loading and unloading of ships, tank cars,
and tank trucks. Working on shifts, there are several
alternating crews. John Jackson is the head of one such
crew and James Luhning is the head of another. Although
these individuals receive their orders from the superinten-
dent in the morning, the unrefuted testimony in the record
reflects that they spend the majority of their time assigning
work and directing the activities of the members of their
crews. Whereas all the employees wear green hardhats,
Luhning and Jackson wear distinguishing yellow hardhats.
Only Melvin Herrman, the assistant superintendent, wears
a white hardhat. Three employees testified that Jackson
and/or Luhning, respectively, were their "foremen."
It is undisputed that when employees wish to leave work
early, or to come in late, they request and receive such
permission from Jackson or Luhning. According to the
unrefuted testimony of employee Jerry Robinson, these
individuals, as he observed, also exercise the authority to
take employees from one job and assign them to another.
In addition, Robinson testified without contradiction that
employees would come to Luhning with their complaints or
grievances and that he would act upon them on the spot.
Insofar as discipline is concerned, the record reflects that
written warning notices are given employees by Jackson
and Luhning and in some cases their names appear on
Respondent's official warning form in the blank provided
for the "Supervisor's name." One such notice was given to
Neal Jackson, Jr., by John Jackson, at which time John
Jackson asked the employee to give his explanation
concerning the infraction with which he was charged.'
Although Jackson and Luhning do not possess various
additional supervisory authority associated with superviso-
ry status, it is well settled that the possession of any one of
the supervisory indicia set forth in Section 2(1 1) of the Act
is sufficient to place an employee in the supervisory class.
Ohio Power Company v. N.L.R.B., 176 F.2d 385, 387 (C.A.
6, 1949); Fair Lady, Inc., 211 NLRB 189 (1974). In view of
the supervisory authority held by Jackson and Luhning
recited above, including what I find to be their responsible
direction of employees in their work, I find Luhning and
Jackson to be supervisors within the meaning of the Act.
C. The Union Activity; Interference, Restraint, and
Coercion
On November 5, 1976, employees Pete Mancuso, Neal
Jackson, Jr., and Curtis Hurst went to the union hall and
spoke to union representatives about organizing a union.
There they were given information as to the procedure to
be followed and they were also provided with union
authorization cards. The next day, during their nonworking
I Although the record reflects that L.uhning and Jackson do not possess
the authority to discharge employees, it is noted that John Jackson's name
hours, these individuals solicited other employees at the
plant and obtained 14 or 15 signed authorization cards.
On November 11, pursuant to a notice posted on the
bulletin board, Raymond Sobnosky, Respondent's superin-
tendent, held a meeting with all the employees. First telling
the employees that he had received a letter from the Union
requesting recognition, Sobnosky stated that he did not
care whether the employees went union or not. Neverthe-
less, he proceeded to say that the Company was planning
to give the employees better benefits and better working
conditions, and also that it was working on plans to give
them a wage increase. The various benefits and planned
wage increase, he said, would be provided to the employees
in writing by the end of the year.
It is too well settled to require the citation of any
authority that it is unlawful for an employer to announce
employee benefits for the purpose of discouraging union
activity during the course of an organizing campaign.
Clearly, this is just what happened here. Especially in the
context of first announcing the receipt of the Union's letter
requesting recognition, I find that by promising the
employees that there would be a wage increase and better
working conditions by the end of the year, which then was
less than 2 months away, Respondent violated Section
8(a)(1) of the Act.
On the following day, November 12, Foreman James
Luhning displayed to a group of four employees a letter
written by Melvin Herrman, the assistant superintendent.
Luhning told the employees that the letter stated that if
they went union they would lose their benefits. Stating to
the employees that they had better think whether they
would go union or not, Luhning specifically mentioned
that if they went union they would lose their sick pay and
that their holiday pay and vacations would be taken away
from them. I find that by threatening employees with loss
of the foregoing benefits if they went union Respondent
violated Section 8(a)(1) of the Act.
D. The Discharge of Pete Mancuso
Pete Mancuso was employed by Respondent as a laborer
from November 6, 1975, until he was terminated on
November 10, 1976. Mancuso not only obtained 14 or 15
union authorization cards from employees on November 6,
but one of the employees borrowed a pen from Foreman
Luhning and in Luhning's presence signed a card which
had just been handed to him by Mancuso. In addition, it is
undisputed that on November 6 or 7 Mancuso told
Foreman Jackson of his going to the union hall with
Jackson and Hurst and of their initiating the organizing
campaign at this time.
The only facts concerning the circumstances, as well as
the asserted reason for Mancuso's discharge, were elicited
from Mancuso, Respondent having called no witnesses to
appears on the termination slip of an employee discharged on January 5,
1977. as the "Supervisor."
296
ANCHORTANK. INC.
testify concerning the basis for the termination of this
employee. 2
Mancuso was notified of his discharge about 4:30 p.m.
on November 10, 1976, a Wednesday, at which time he was
given an envelope by one Richard Vayette, which con-
tained a memorandum signed by Sobnosky stating as
follows:
This is to inform you that as of 4:30, November 10,
1976, you have been terminated for failure to comply
with safety regulations. A copy of the said safety
regulations plus a copy of the termination is enclosed.
The enclosed safety regulation stated, "Anyone caught
climbing fences in the plant area will be immediately
terminated."
With respect to the assigned reason for Mancuso's
discharge, the record reflects that a large portion of
Respondent's outdoor property leading to the dock area is
fenced off by a 6-foot wire fence which is topped by strands
of barbed wire. Running parallel to the fence are two large
pipes which extend beyond the end of the fence and
continue into an area still on Respondent's property.
Without qualification, the evidence reflects that it was
common practice for Respondent's employees, including
the supervisors, to climb over the pipes as a shortcut to the
dock area. There is no indication that anyone was ever
warned or disciplined for engaging in this practice.
It was brought out through the testimony of Mancuso
that he and another employee climbed over the pipes to
take a break on Monday, November 8. Under cross-
examination it was further developed that on this occasion
Mancuso caught his leg on a pipe and fell over on the other
side. Apparently sustaining a slight injury, he reported this
to the safety director, whereupon he was advised to go
home and see a doctor. Mancuso did not recall whether he
returned to work on Tuesday, but it is undisputed that he
was given his notice of termination in or about the middle
of his workday on November 10.
Upon the undisputed facts in this case, I have little
difficulty in concluding and finding that Mancuso was
discharged because of his union activities. That Respon-
dent was hostile to the Union has been demonstrated by
the Section 8(a)(1) violations heretofore found; and it has
also been shown, that Respondent, through Foreman
Jackson, was well aware that Mancuso was the leader of
the organizing campaign. Additionally, it is not without
significance that it was on the day following Mancuso's
discharge (as well as the discharge of Neal Jackson) that
Respondent assembled its employees, advised them that it
had received a letter from the Union requesting recogni-
tion, and announced the various benefits which it planned
to give them. Thus, and apart from Respondent's knowl-
2 Supenntendent Sobnosky, who appears to have been responsible for
the discharge, was himself discharged by Respondent at some undisclosed
time after Mancuso's termination.
3 Under cross-examination Mancuso also conceded that he and Fore-
man Jackson were smoking in a no-smoking area several days before his
discharge. While this was in breach of Respondent's no-smoking rule, the
record again reflects that it was common practice for the employees and
their supervisors alike to smoke in this area without penalty. Accordingly.
and assuming this to be an additional asserted reason for Mancuso's
discharge (as Respondent's brief appears to indicate) for the reasons stated I
edge of Mancuso's union activities, it is readily inferable
that Respondent received the recognition request on
November 10 and that this, too, was the motivating factor
for his discharge. As to the reason assigned for this action,
namely, that Mancuso allegedly climbed a fence, I can but
regard this as no less than a pretext. Thus, even assuming
that climbing over the extended pipes was a breach of
Respondent's rule, the fact is that the rule was never
enforced. The pretext therefore becomes obvious.
In sum, and in view of all the foregoing, I find that
Respondent's discharge of Mancuso was violative of
Section 8(a)(i) and (3) of the Act.3
E. The Discharge of Neal Jackson, Jr.
Jackson was employed by Respondent as a laborer from
July 7, 1976, until he was discharged on November 10,
1976.
On November 2 or 3, 1976, Jackson was assigned to
tighten a knock-on cap on a butadiene tank car. In order to
avoid generating sparks which could cause the butadiene to
explode, the proper tool to use in the performance of this
job is a brass hammer. Instead, Jackson used a steel
wrench. Although in his testimony Jackson sought to give
an excuse for his use of the steel wrench, I shall assume for
decisional purposes that Jackson's excuse was without
merit and that his use of the wrench was a breach of
Respondent's safety rule. In any event, the incident came
to the attention of Respondent's supervisors and for this he
was issued a written warning. This warning, which is in
evidence as General Counsel's Exhibit 7, bears the date of
November 3, 1976. However, according to the unrefuted
testimony of Neal Jackson, written warnings of this nature
frequently are not given to the employees until several days
after they are typed up, the date of the warning having
been placed thereon at the time of the typing. In this
instance, the warning was not given to Jackson until a day
or two after he and the two other employees met with the
union representatives on November 5, 1976. After handing
the warning to Neal Jackson on this occasion, 4 it is
undisputed that Foreman Jackson proceeded to ask Neal
Jackson how he (Neal Jackson), Mancuso, and Curtis
Hurst were progressing with the union campaign. Jackson
replied that they were doing "real good" and had "almost
50°% participation." 5
Employee Jackson worked on a later shift than did
Mancuso. When Mancuso arrived home on November 10,
he called Jackson, told him that he (Mancuso) had been
discharged, and advised him (Jackson) that he would
probably receive a termination slip also. This proved to be
just what happened, for when Jackson reported to work
that evening he was given a termination slip by Foreman
Jackson which stated that he was being terminated "for
would also find this to be a pretext. Moreover, since breach of a no-smoking
rule was not the reason given to Mancuso at the time of his termination, the
inconsistency of any such contention with the reason actually given is
further indicia of discrimination.
4 Foreman Jackson also asked Neal to give his explanation of the
incident and to sign the warning slip. This participation by the foreman in
the disciplinary action is further indication of his supervisory authority.
Neal, it might be added, refused to sign.
5 As previously related, Mancuso had related the November 6, 1976,
organizational meeting to Foreman Jackson prior to the above conversation.
297
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failure to comply with a safety regulation, using hammers
other than brass to hammer on butadiene tank cars." Since
the reason assigned for Jackson's discharge involved the
very same infraction for which he had received a written
warning several days earlier, the pretextual nature of the
reason so assigned for the discharge is conspicuously
apparent. Accordingly, and since Respondent has been
shown to have had knowledge of Jackson's union activities,
for the same reasons heretofore stated with respect to
Mancuso's discharge, I conclude and find that Respon-
dent's termination of Jackson was in violation of Section
8(a)(1) and (3) of the Act. I further find that Foreman
Jackson's interrogation of Neal Jackson concerning the
progress of the union campaign was independently viola-
tive of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operation de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent discharged Neal
Jackson, Jr., and Pete Mancuso in violation of Section
8(a)(1) and (3) of the Act, I shall recommend that
Respondent be ordered to offer them full and immediate
reinstatement to their former positions or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and privileges,
and to make them whole for any loss of earnings they may
have suffered from the date of their discharge to the date of
Respondent's offer of reinstatement. Backpay shall be
computed in accordance with the formula prescribed in F.
W. Woolworth Company, 90 NLRB 289 (1950), with interest
thereon computed in the manner and amount prescribed in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
In view of the nature and extent of the unfair labor
practices herein found, it will be recommended that
Respondent be ordered to cease and desist from in any
manner infringing upon the rights guaranteed employees in
Section 7 of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and the recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By engaging in the conduct described in section III,
above, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(aX I)
and (3) 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.
On the basis of the above findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 6
The Respondent, Anchortank, Inc., Texas City, Texas,
its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging employees because they engage in union
activities.
(b) Threatening its employees with loss of benefits if they
join or support the Union.
(c) Promising its employees economic benefits for the
purpose of discouraging union activities.
(d) Interrogating employees concerning their union
activities.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Neal Jackson, Jr., and Pete Mancuso reinstate-
ment to their former positions or, if these positions no
longer exist, to substantially equivalent positions, and
make them whole for any loss of pay they may have
suffered by reason of the discrimination against them in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, 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 to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its facility in Texas City, Texas, copies of the
attached notice marked "Appendix." 7 Copies of said
notice, on forms to be provided by the Regional Director
for Region 23, shall be posted by it immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
7 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
298
ANCHORTANK, INC.
(d) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Decision what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or in any other manner
discriminate against employees for engaging in union
activities.
WE WILL offer Pete Mancuso and Neal Jackson, Jr.,
immediate and full reinstatement to their former
positions, or, if these positions no longer exist, to
substantially equivalent positions, 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 discrimination practiced
against them.
WE WILL NOT interrogate our employees concerning
their union activities.
WE WILL NOT promise our employees economic
benefits for the purpose of discouraging their union
activities.
WE WILL NOT threaten our employees with loss of
sick pay, paid holidays, loss of medical coverage, or any
other benefits, if they join or support Oil, Chemical and
Atomic Workers International Union, or any other
labor organization.
WE WILL NOT in any other manner interfere with our
employees' exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act, as
amended.
ANCHORTANK, INC.
299