Armour Oil Company

National Labor Relations Board - Board Decisions

Aug 19, 1982

263 N.L.R.B. 553 (N.L.R.B. 1982)

ARMOUR OIL COMPANY
Armour Oil Company and Chauffeurs, Teamsters
and Helpers Union, Local 150, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 20-
CA- 16064
August 19, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On March 12, 1982, Administrative Law Judge
Earldean V. S. Robbins issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and Respondent filed a brief in answer thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt her recommended Order, as
modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Armour Oil Company, Martinez and West Sacra-
mento, California, its officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order, as so modified:
1. Substitute the following for paragraph l(d):
"(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing her findings.
In view of the Administrative Law Judge's credibility resolutions, we
find it unnecessary to reach the issue of whether an adverse inference
should have been drawn from the failure of John Thompson, Respond-
ent's former manager-dispatcher at its Sacramento facility, to testify.
i In her recommended Order the Administrative Law Judge inadvert-
ently omitted the words "like or" from par. l(d). Accordingly, we have
modified the Administrative Law Judge's recommended Order to correct
this inadvertent error.
263 NLRB No. 74
IT IS FURTHER ORDERED that the complaint alle-
gations not specifically found herein be, and they
hereby are, dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAI LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WII.L NOT tell our employees that they
will not be allowed to obtain union representa-
tion.
WE WILL NOT threaten our employees that
they will be discharged if they seek union rep-
resentation.
WE WIL.L NOT threaten our employees that
we will close one of our facilities if the em-
ployees at that facility select a union as their
collective-bargaining representative.
WE WILI. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in the National Labor Relations Act.
ARMOUR OIL COMPANY
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge:
This matter was heard before me in Sacramento, Califor-
nia, on December 1 and 2, 1981. The charge was filed by
Chauffeurs, Teamsters and Helpers Union, Local 150, In-
ternational Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the
Union, on March 3, 1981, and served on Armour Oil
Company, herein called Respondent, on March 5, 1981.
The consolidated complaint which issued on April 30,
1981, alleges that Respondent violated Section 8(aXl)
and (3) of the National Labor Relations Act, as amend-
553
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed, herein called the Act. The basic issue herein is
whether Respondent closed its West Sacramento facility
and transferred the employees at that facility to Re-
spondent's Martinez facility because the employees at the
West Sacramento facility had engaged in union activities.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the parties, I make the follow-
ing:
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Respondent, a California
corporation, with offices and places of business in the
States of California, Oregon, Washington, Arizona, and
Nevada, including a facility in Martinez, California,
herein called Martinez facility, and a facility in West
Sacramento, California, herein called the Sacramento fa-
cility, has been engaged in the sale and distribution of
gasoline and oil products to dealers. During the calendar
year 1980, Respondent, in the course and conduct of said
business operations, purchased and received at its facili-
ties within the State of California products, goods, and
materials valued in excess of $50,000 directly from points
outside the State of California.
The complaint alleges, Respondent admits, and I find
that Respondent is now, and at all times material herein
has been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is now, and at all times material herein
has been, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
For a number of years Respondent has operated as a
wholesale distributor of gasoline products in several
western States. The principal owner, president, and chief
executive officer of Respondent is Byram Armour,
herein called Armour. Prior to December 16, 1980, Re-
spondent's vice president' was Henry Armour, the son
of Byram Armour. Robert Rapoza, herein called Rapoza,
is terminals manager. As such, he is in charge of the ter-
minal managers, the dispatchers, truck repairs, and any
problems that arise in the terminals. At least since De-
cember 16, 1980, he has been second in command to
Armour. Armour personally purchases and sells all of
Respondent's products, equipment, and real estate. Re-
spondent maintains no storage facility for the gasoline
products that it sells. Rather, it purchases such products
from various suppliers either at refineries or pipeline ter-
minals. It then distributes the product to its customers in
tanker trucks driven by drivers, in Respondent's employ,
I The information as to Henry Armour's title comes from a previous
case concerning Respondent, Armour Oil Company, 253 NLRB 1104,
1106 (1981).
who work out of Respondent's various terminal loca-
tions. Prior to 1979 Respondent had terminals or truck
yards located in San Diego, California; Bakersfield, Cali-
fornia; Paramount, California; Sacramento, California;
Martinez, California; Portland, Oregon; Seattle, Wash-
ington; Spokane, Washington; Las Vegas, Nevada; and
Phoenix, Arizona. As of February 1980, at the time of
the hearing in a prior proceeding, the drivers employed
at these various terminals were represented by various
local unions affiliated with the Teamsters International
Union on a terminal-by-terminal basis and were covered
by separate collective-bargaining agreements. 2
For a number of years, Respondent's practice has been
to locate its terminals or truck yards close to a source of
supply and at a point from which it could more eco-
nomically service its customers and potential customers.
A typical workday for one of its drivers is to pick up a
load of fuel from a supplier, deliver that load to custom-
ers, return with an empty truck to a supplier, pick up an-
other load, deliver that load to customers, and so on to
the end of the day. At the end of the workday, the
driver either returns with an empty truck to Respond-
ent's facility or with a loaded truck prepared for delivery
to Respondent's customers at the beginning of the next
shift. Prior to September 1979, Respondent's customers
in northern California and northern Nevada were serv-
iced by Respondent's drivers who operated out of Re-
spondent's Martinez facility, a facility about 65 miles
from Sacramento which has been in existence for at least
20 years. In 1979 Respondent decided to open a facility
in Sacramento. 3 In a prior proceeding the Board af-
firmed the Administrative Law Judge's finding that the
decision to open the Sacramento facility was based on le-
gitimate business reasons upon securing commitments
from suppliers, in particular Aminoil, to furnish Re-
spondent with an adequate supply of gasoline at a Sacra-
mento pipeline terminal. 4
Respondent commenced operation in Sacramento in
September 1979, operating out of a motel room. Initially
this Sacramento operation was staffed by drivers on tem-
porary assignment from Respondent's Bakersfield and
Martinez facilities. On or about October 15, 1979, Re-
spondent began hiring local drivers and, at some point
thereafter, the drivers on temporary assignment returned
to the Bakersfield and Martinez facilities. Sometime in
November 1979 Respondent transferred its Sacramento
operations to a trailer office and drivers' room located
behind a Gas-N-Save service station and truckstop,5 with
three trucks and nine drivers. At that time, John Thomp-
son became the dispatcher for, and manager of, the Sac-
ramento facility. Thereafter Thompson hired all drivers
at this facility. Jess Lander, who began working at the
Sacramento facility as a driver in October 1979, relieved
Thompson as dispatcher 2 days a week.
Armour testified that, when the Sacramento facility
was opened, it was envisioned that ultimately the facility
2 Armour Oil Company. supra at 1106.
a Respondent had previously operated a facility in Sacramento for a
period of time in 1972 but had closed it during the oil crunch of 1973.
4 Armour Oil Company, supra at 1106.
a This service station and truckstop was owned by Armour.
554
ARMOUR OIL COMPANY
would service customers in an area commencing at
around Vacaville, which is about midway between the
Sacramento and Martinez facilities and extending north
to Crescent City, east to Reno and Carson City, Nevada,
and south to Stockton, California. However, in order to
furnish the drivers at the Sacramento facility adequate
work while Respondent was attempting to develop addi-
tional business in the area, the Sacramento drivers did
make pickups and deliveries in a wide area. In or about
August 1980, Armour commenced some remodeling at
the Gas-N-Save station and truckstop. The area was
paved and a truck wash and new lighting were installed.
Some building remodeling had either commenced, or
was anticipated, which would include a dispatch office in
the back section of the station.
Chuck Brooks, business agent for the Union, testified
that on or about October 10, 1979, he received a tele-
phone call from a Mr. Barowski, an employer representa-
tive for Respondent. They arranged a meeting for Octo-
ber 12, 1979. The meeting was held as scheduled, during
which Barowski informed the union representatives that
Respondent was going to open a terminal in Sacramento
and wanted to negotiate a labor agreement with the
Union. Sometime during the latter part of October or the
first part of November, Respondent's employees at the
Sacramento facility met with the Union and signed cards
authorizing the Union as their collective-bargaining rep-
resentative. The Union and Respondent participated in
several sessions between October and mid-December
covering these employees. In the prior proceeding, the
Administrative Law Judge found that these negotiations
reached an impasse in December when the Union adopt-
ed a take-it-or-leave-it bargaining position, namely, it
took the position that it would accept only a contract
identical to Respondent's contract with Teamsters Local
315 covering the drivers at Respondent's Martinez facili-
ty." There is no evidence of any further negotiation ses-
sions 7 nor of any union activity by Respondent's em-
ployees at the Sacramento facility until early 1981.
By August 1980 drivers from the Sacramento facility
were picking up fuel from Pacific Refining Company in
Hercules, California." The three trucks were apparently
inadequate to handle the workload so a fourth truck was
transferred to Sacramento from Respondent's Bakersfield
facility. By February 1981 Respondent had 5 trucks and
15 drivers working out of its Sacramento facility. Except
for the period during which pickups were primarily
made from Hercules, during 1979 and 1980, Respondent's
principal supplier for the Sacramento facility operation
was Aminoil in Sacramento. Other suppliers were Amin-
oil in Stockton, California; Tosco in Avon, California;
and UCO in Martinez. Armour would notify Thompson
or Lander, either directly or through someone else, on a
a Armour Oil Company, supra at 1106.
Brooks testified that early in 1980 he telephoned Henry Armour a
couple of times regarding scheduling further meetings. Then he learned
that Armour had left Respondent's employ. Thereafter he made no fur-
ther attempts to schedule negotiation sessions.
" The fuel which was picked up in Hercules in August was acquired
through a special purchase arrangement at a time when the supply in
Sacramento was limited and for a short period of time most of the pick-
ups done by Sacramento drivers was from Hercules a distance of 60 to
68 miles from the Sacramento terminal.
daily basis as to how much fuel at what locations was
available for the day. The dispatchers would then in-
struct the drivers where to make the pickups for the day.
The wages and benefits paid to the Sacramento drivers
were substantially the same as those provided under a
collective-bargaining agreement with the Teamsters local
union which represented the employees at Respondent's
Bakersfield facility.
B. The Alleged Statements by Thompson
Don Lynch testified that he was hired by Thompson
about August 2, 1980,9 as a driver. According to him, at
the time he was hired Thompson told him that Respond-
ent's Sacramento facility was a nonunion yard but that
the employees were paid the same as the union-repre-
sented drivers at Respondent's Bakersfield facility.
Thompson further said that the reason the Sacramento
yard was in existence at the time was because it was non-
union and, if at all possible, Armour would make the
Sacramento facility the hub of his operations and would
close down the Martinez facility. Lynch further testified
that he thought Bill Wright was present during this con-
versation. However, although Wright testified, he gave
no testimony with regard to this conversation.
Lynch also testified that in early February 1981 he
came into the drivers' room as Thompson was talking to
Bill Wright and another driver. He is not sure of the
identity of the second driver but thinks it was Don
Ennis. According to Lynch, as he entered the room, he
heard Thompson say that if the yard became union it
would definitely be closed. Thompson then turned
around and said to Lynch, "This is the truth, Ken. If it
becomes union, the old man will close it." Neither
Wright nor Ennis testified as to this alleged conversation.
Carl Fox testified that when he was hired as a driver
on or about December 5, 1980, Thompson told him that
the Sacramento facility would be the hub of Respond-
ent's northern California operation. Thompson said that
the pay and benefits at the facility were comparable to
union benefits but that Respondent's Sacramento facility
was nonunion and it was going to stay that way.
Fox further testified that in February 1981, during a
conversation with Thompson, he told Thompson that
Respondent's Martinez drivers were hassling the West
Sacramento drivers. Fox also said that some of the Sac-
ramento drivers were unhappy and felt that they could
solve their unhappiness if they obtained union representa-
tion. Thompson replied, "Well, it's nonunion and we are
going to keep it that way." Thompson then asked if Fox
was satisfied with the way things were going. Fox said
yes. Thompson said that if the drivers started pushing for
the Union he would fire them or something to that
effect. Fox does not recall exactly what words Thomp-
son used. Later, when he was asked if Thompson had
told him prior to February 21 that the Sacramento facili-
ty would, or might, be closed, Fox testified, "I'm not
sure. But the day we had coffee over at Sambo's, 10 days
or so before, there was some discussion of that and it
I Unless othewise indicated all dates herein in August through Decem-
ber will be in 1980, and those in January through April are in 1981.
555
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seems to me, it was mentioned in the conversation . . .
one of us said, if the way things stand right now, if the
Union was voted in, that the trucks would be moved to
Martinez."
Driver Burt Baltz was hired by Thompson on or about
August 19, 1980. On direct examination, Baltz testified
that within 2 weeks thereafter he asked Thompson what
would happen if the drivers did go union. Thompson
said that Armour would probably jerk the yard out of
Sacramento if they did that and that there was no way
Respondent would ever go union at the West Sacramen-
to facility. On cross-examination, he testified, as to this
conversation, that he asked Thompson when he was
going to be a permanent driver. o Thompson said that as
long as business was there and Baltz worked a certain
period of time he would become a permanent driver.
Baltz then asked whether the Sacramento facility would
ever become union after he became a permanent employ-
ee and what the chances were of this happening. Thomp-
son said there was no chance of it happening.
Baltz further testified that, shortly before Thanksgiv-
ing 1980, he asked Thompson whether the employees at
the Sacramento facility would be paid for Thanksgiving
and commented that on a union job employees generally
had to work on the day before a holiday and the day
after a holiday in order to receive holiday pay. Thomp-
son said that this was a nonunion job and he would be
paid for the holiday whether he worked it or not. Then
something was said which Baltz cannot recall about the
Union. At this point, Thompson said there was no way
the Sacramento facility would go union, that Armour
would close the facility.
Baltz also testified that in early October 1980 Armour
visited the Sacramento facility. Later that day, Baltz
asked Thompson what was going on with Armour's
visit. Thompson replied that Respondent had plans to
pave the yard and put in a wash facility and eventually
to build a maintenance and office facilities and to expand
the facility to handle more trucks. On cross-examination
as to the Thanksgiving holiday pay conversation, Baltz
testified only that he asked Thompson whether he would
be paid. Thompson said he would be. Baltz remarked
that on most jobs he had worked one had to work the
day preceding and the day following a holiday in order
to receive holiday pay. He further testified that he could
not recall what else was said. On redirect examination,
he again testified that, when he mentioned the require-
ments on other jobs, including union jobs, for receiving
holiday pay, Thompson said, "This is not a union job.
You get paid for that. It will never be a union shop
here."
Driver Vernon Hilbun testified that after Thompson
hired him on November 6, 1980, he had about three con-
versations with Thompson regarding the Union. The first
was approximately 2 weeks after he began work. Ac-
cording to Hilbun, the union situation was being dis-
cussed by the drivers present and Thompson remarked,
"The minute this yard goes union, this yard will be
closed." Thompson made similar remarks on two other
o1 Baltz had been told that his employment would be for about 2
weeks only.
occasions, according to Hilbun. One such conversation
was perhaps a month after the first conversation and the
third conversation was within 2 weeks after the second.
About three drivers were present during theqp conversa-
tions. Steve Shepherd was there once and also Dale
Vagle. Hilbun also testified that in or about January
1981, at the Sacramento facility, Thompson told him, "It
looks like the old man is going to make this the hub of
his business." According to Thompson, Shepherd and
Vagle were present during the first conversation and
most of the talking had been done by Vagle. Hilbun does
not recall the context of these remarks except that in one
instance there was discussion as to the hassle that the
Sacramento drivers were receiving from' the Martinez
drivers, and that in the first conversation Vagle had
asked, "Why isn't this yard union when all the others
are."
Steve Shepherd testified that he was hired by Thomp-
son on November 3, 1980. Shepherd asked Thompson
what the benefits were. Thompson said they were the
same, if not better, than the benefits Shepherd had re-
ceived at the union job which he held previously. Shep-
herd asked what the chances were of the Sacramento fa-
cility going union. Thompson replied that this was a
nonunion shop and, if he heard anyone talking about
going union, he would terminate them. They would be
fired by him personally. Shepherd later testified that he
asked Thompson what the chances were that the facility
would go union. Thompson said, "This is a nonunion
shop and I don't want to hear anybody taking about
union or I will terminate them." 1
Shepherd also testified that shortly before Christmas
1980 he asked Thompson whether the drivers at the Sac-
ramento facility would be paid for Christmas and their
birthdays. Thompson said they would. Shepherd re-
marked that it was almost as good as a union job.
Thompson agreed. Shepherd asked if there was any
chance of the employees at the Sacramento facility being
represented by a union. Thompson said, "No, there is
not. This is a nonunion shop. It's going to stay that
way."
William Wright testified that he was hired by Thomp-
son in May 1980. At that time Thompson told him that
Respondent's Sacramento facility was a nonunion yard,
would remain a nonunion yard, and he would not toler-
ate any union discussion in the facility. Wright further
testified that around October or November he had a con-
versation with Thompson in which Thompson told him
that Armour was trying to bring the Sacramento facility
up to the standard of the Martinez facility, that he
wanted to get rid of the trailer and have an office there,
and that Armour had purchased the land next door to
the Gas-N-Save station and was going to make a termi-
nal out of it. Thompson said they were busy and it
looked like the Sacramento facility was going to get
II Respondent argues that this testimony is not credible since no men-
tion was made on cross-examination of this remark by Thompson. How-
ever, at no time during cross-examination was Shepherd asked to recount
the entire conversation. Rather, he was asked specific questions as to the
entire conversation, none of which were framed to elicit testimony con-
cerning any remark by Thompson concerning union activity or represen-
tation.
556
ARMOUR OIL COMPANY
bigger. Wright also testified that he had a conversation
with Thompson before Wright began working for Re-
spondent and at a time when Thompson worked at the
Sacramento facility as a driver and before he became
manager of the facility."l According to Wright, Thomp-
son told him that the drivers at the Sacramento facility
were union, some from Bakersfield and some from Mar-
tinez, that they could not figure out which contract to
use, so Armour closed the yard down and rehired non-
union drivers.
On cross-examination, Wright testified as to the con-
versation he had with Thompson when he was hired.
During this recounting of the conversation, his account
did not include any remark by Thompson as to the Sac-
ramento facility being or remaining nonunion nor about
Thompson not tolerating any union discussion in the fa-
cility. Rather, he testified that he walked into the trailer
office and asked Thompson if they were hiring. Thomp-
son aid yes. Wright filled out an application and
Thompson gave him a packet of instructions. Wright
then took the Department of Transportation test and a
safety test. Thompson said that Wright would have to
take a student run with Jess Lander after the end of the
night shift. Wright asked if the Sacramento facility was
still nonunion. Thompson said it was. Wright asked if
they were having any more trouble. Thompson said no,
that Armour said they would be keeping the product
down in the Sacramento area and would not have to
mingle with the Martinez drivers or be in contact with
them. Wright was then asked if that was the complete
conversation, as he recalled it, that occurred between
him and Thompson on the day he was hired, to which
Wright replied yes.
Wright also testified that in or about January 1981 he
and driver Dale Vagle had a conversation with Thomp-
son. On direct examination Wright testified that he told
Thompson that they were really getting pressure to go
union."a Thompson replied that he would not tolerate
any such pressure, that he would not stand for any
driver discussing going union and would terminate
anyone who tried to make the Sacramento facility a
union yard. On cross-examination, however, Wright tes-
tified that he told Thompson that the Sacramento drivers
were being harassed by the Martinez drivers and were
getting tired of being subject to such working conditions.
Vagle said he could not understand why employees of
the same company had to fight among themselves, that it
did not make sense. Thompson said it would be taken
care of, that it would not last much longer. Wright said
he was not going to put up with much more of it be-
cause his life was worth more than S8.50 an hour.
" There is no evidence that Thompson continued to drive a truck
after he becane the manager-dispatcher for the Sacramento facility,
except that Lander testified that Thompson drove a truck on February
21. Thompson worked full time as dispatcher. Wright testified thai he re-
calls this conversation as being in December 1979 but admits that his
memory as to Thompson being a driver is more accurate than his
memory of the date.
Is This was in apparent reference to what he considered as harassment
of the Sacramento drivers by the Martinez drivers. However, on direct
examination Wright did not relate any specific remarks made during this
conversation regarding such harassment.
Donald Ennis testified that he began work at Respond-
ent's Sacramento facility on August 24, 1980, and that at
the time of his hire he had a discussion with Thompson
concerning unions. According to him, he told Thompson
that he understood that Respondent was union. Thomp-
son said all of Respondent's facilities were union except
for the Sacramento facility, that the Sacramento facility
was Armour's pet and would not be union.
Ennis further testified that on or about February 7,
1981, Thompson told him that he was making a trip to
San Diego, that he was having a lot of problems with
the drivers and other things, that he had been offered an-
other position and he was going to San Diego to speak
to Armour in an effort to resolve some problems. Ennis
suggested that it would be easier if the Sacramento facili-
ty went union and had a union dispatch system like the
Martinez facility. Thompson replied, "No, it wouldn't do
us any good at all because we wouldn't have a job to
have a dispatcher at, because he would pull the yard in a
minute if we went union."
Ennis testified that about a week later he asked
Thompson how his trip to San Diego had gone. Thomp-
son said everything went fine, that Jess Lander was
going to be in the office permanently as a dispatcher, and
that some of his personal demands had been met. Ennis
said it was the consensus of the employees to seek union
representation, to which Thompson replied that, if he
heard any talk of anyone going union, he was going to
fire them. Ennis asked, "Do you really mean that he
would fire you?" Thompson replied that not only would
Armour fire him, he would pull the yard in a minute and
close it. On cross-examination, Ennis testified that when
he told Thompson that the consensus of the employees
was to go union, Thompson said he had heard that and
that if he caught anybody promoting the Union in the
Sacramento facility he would fire them on the spot and
that if they went union Armour would close the yard.
Lander testified that he was present when Thompson
hired Earl Eltchinoff. Eltchinoff had worked for Re-
spondent out of the Martinez facility as a casual employ-
ee. Eltchinoff told Thompson that he knew the Sacra-
mento facility was a nonunion operation and he asked
what the benefits and working conditions were, stating
that he was in the process of looking around Sacramen-
to. Thompson explained that the Sacramento facility had
an entirely different operation from the Martinez facility,
that they had a schedule by which they tried to work-if
you were scheduled to work, you had to be available to
work and if work was available you worked, and if there
was no work available you did not work that day, or if
your truck was in the shop you did not work that day.
Eltchinoff asked if Lander thought his chances of being
able to work steady out of the Sacramento facility were
good. Lander said yes, he thought Eltchinoff stood a
good chance of working fairly steady because they had
just added a fifth truck and needed someone to fill a va-
cancy on that truck, that they were fairly busy at the
time. Lander also said that the Sacramento facility was
pulling approximately 90 percent of its product out of
the bay area and he thought Eltchinoff would make a
good move by coming to work at the Sacramento facili-
557
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ty. Eltchinoff asked if Lander thought there was a
chance of the facility going union. Lander said he did
not think so. Thompson said it would never go union,
that if they attempted to go union, the facility would be
shut down. On cross-examination, Lander testified that
Earl Eltchinoff came into the Sacramento facility and
said that Walt Clement, the dispatcher from the Martinez
facility, had sent him to see Thompson. Eltchinoff asked
if there was a position open. Thompson said not at that
time. Eltchinoff asked if he could fill out an application
and be considered for future employment if there was an
opening. Thompson said yes, he could and gave him an
application blank which Eltchinoff filled out. Eltchinoff
then said he liked working for Respondent, that he had
been employed as a casual employee in the Martinez fa-
cility, and that he would like to work in the Sacramento
facility. He said he was not getting much work at Mar-
tinez as a casual, that he intended to move to the Sacra-
mento area, and was trying to locate a job in Sacramen-
to. Thompson then told him that if he had an opening
coming up Eltchinoff would be considered for the open-
ing, that he came highly recommended from Walt Clem-
ent as a good driver. In this version of the conversation,
Lander makes no mention that Thompson said there
would never be a union at the Sacramento facility, that if
the employees there attempted to go union the facility
would be shut down.
IV. IHE FEBRUARY 1981 UNION ACTIVITY
The employees at the Sacramento facility on February
21, 1981, were Carl Fox, Steven Shepherd, Donald
Ennis, Jesse Lander, Garry Landis, Phil Lyles, William
Wright, Don Kenneth Lynch, Donald Williams, Vernon
Hilbun, Burt Baltz, Ray Faulkner, Merve Metzker, Dale
Vagle, and Earl Eltchinoff. Almost all of these employ-
ees were present at a meeting held on that day, a Satur-
day, at Sambo's Restaurant with Tony Santos, an orga-
nizer for the Union, and Vince Alis, a representative of
Teamsters Local 315. The employees began arriving at
around 5:30 a.m. but the meeting did not commence until
about 6:15 a.m. During the course of the meeting, the
employees signed cards authorizing the Union as their
collective-bargaining representative.
On the morning of February 21, at some time prior to
8:30 a.m., Santos approached Thompson and Lander at
Eppie's Restaurant which is located across the street
from the Sacramento facility. Both Lander and Santos
testified as to the ensuing conversation. Although their
testimony is contradictory as to the hour of this conver-
sation, they did testify in substantial, though not total,
agreement as to what was said. Santos testified that he
introduced himself to Thompson as an organizer from
the Union and told him that he represented the employ-
ees at the Sacramento facility. He further told Thompson
that anything pertaining to the working conditions was
Thompson's problem but that anything pertaining to the
employees signing authorization cards and the Union
filing a petition would be his problem, that the Union
would file a petition and have an election. Santos also
said that he wanted Thompson to know that, if any of
the employees were laid off or discharged, he would file
charges. Santos then left. According to Santos, this con-
versation occurred at or about 8 or 8:30 a.m.
Lander testified that the conversation occurred about
6:30 a.m. According to him, Santos knew him. Santos
came over, introduced himself, and asked who Thomp-
son was. Thompson introduced himself as the terminal
manager. Santos said that the men had all signed union
pledge cards and that the Union would be representing
the men in the negotiation of a work agreement with Re-
spondent. He also said he did not want Thompson to
hassle the employees, threaten to fire them or anything,
and that the employees were over signing their pledge
cards. Lander further testified that, after Santos left,
Thompson said, "Well, the boys blew it there. I know
Mr. Armour is going to close the yard now."
Santos credibly testified that he had the conversation
with Thompson and Lander after the union meeting.
From a consideration of the testimony of all the wit-
nesses as to the time the meeting began and ended, it ap-
pears unlikely that the conversation occurred as early as
6:30 a.m. as Lander testified. To the extent that their tes-
timony is in variance, I credit Santos. In this regard I
note that Lander testified that Santos said that the driv-
ers had all signed pledge cards and that he later said that
the drivers were over signing pledge cards. Lander fur-
ther testified that, after he and Thompson finished break-
fast at Eppie's, they went over to the office at the Sacra-
mento facility. Thompson said he had to notify Armour
what had occurred. According to Lander, Thompson did
make a telephone call in Lander's presence. Lander
heard what Thompson said during the telephone conver-
sation but could not hear what the other person said.
Lander testified that Thompson said, "Good morning,
Mr. Armour. I have some bad news." There was a
pause, and then Thompson said that the men had agreed
to go union, that they had a meeting with the Union that
morning and signed pledge cards to be represented by
the Union. This conversation was shortly after 7 a.m.
and Thompson left the facility at approximately 7:30 a.m.
and did not return until 11 or 11:30 a.m. Then on rebut-
tal, Lander testified that he did not see Thompson in the
office that morning, that Thompson left at approximately
7 o'clock to make a run to Oroville.
Thompson did not testify, although he was in the hear-
ing room during the presentation of the General Coun-
sel's case on the first day of the hearing herein. He was
not present on the second day when Respondent's case
was being presented. Rapoza testified that, after the hear-
ing had recessed on the first day of the hearing, Thomp-
son, for the first time, notified him and counsel for Re-
spondent that he was not available on the second day of
the hearing because he had a job interview scheduled in
the San Francisco Bay area for that day. Rapoza further
testified that Thompson is presently unemployed and has
not been in Respondent's employ since March or April
1981. According to Rapoza, when he and counsel were
told of Thompson's scheduled job interview, they agreed
that Respondent did not wish to obstruct his opportunity
for employment. However, counsel for Respondent
stated that Thompson was not under subpoena and no
motion was made to continue the hearing in order to
558
ARMOUR OIL COMPANY
secure Thompson's testimony nor was there any motion
to resume the hearing in the San Francisco Bay area
which presumably could have facilitated Thompson's
presence at the hearing without unduly obstructing his
opportunity for employment.
V. THE CLOSING OF THE SACRAMENTO FACILITY AND
THE TRANSFER OF THE SACRAMENTO EMPLOYEES TO
MARTINEZ
Lander testified that on the morning of February 21,
after Thompson left the facility, he received a telephone
call from Armour and Rapoza. It appeared to him that
Armour and Rapoza were both on the line at the same
time. Rapoza asked, "What happened up there, why the
guys wanted to go union." Lander explained that the
drivers were unhappy with the working conditions of
having to go to Martinez and load with the union drivers
out of the Martinez facility. They were unhappy with
the way Thompson was running the facility. Rapoza said
that they had sent all the trucks to Martinez. Lander
asked where that left the Sacramento drivers. Rapoza
said, "Well, if you guys want to work union, you can go
to Martinez and work down there." This conversation
was about 9 a.m. Later that morning, according to
Lander, Rapoza telephoned him again and instructed him
to dispatch all the drivers to the Martinez facility. When
Lander explained that all the drivers were already out on
runs, Rapoza further instructed him to contact the driv-
ers at their locations and instruct them to take the trucks
to the Martinez facility and park them after they com-
pleted their deliveries.
Thereafter Lander did contact the drivers and notified
them to take the trucks to the Martinez facility. He also
contacted the Martinez dispatcher to give him informa-
tion as to the deliveries they had for the remainder of
that day and for the next day. Later that day, he took all
the records and paperwork from the Sacramento facility
to the Martinez office and worked at the Martinez office
for the remainder of that day. As the Sacramento drivers
came in to the Martinez facility, Lander had the respon-
sibility of providing them transportation back to the Sac-
ramento facility to pick up their automobiles. For the
next 2 weeks Lander worked out of the Martinez office
in an effort to make the transition as smooth as possible.
He then returned to work full time as a driver working
out of the Martinez facility. Respondent has not operated
out of the Sacramento facility since the morning of Feb-
ruary 21.
It is undisputed that none of the Sacramento facility
employees had any notice, prior to midmorning Febru-
ary 21, that the Sacramento facility would be, or might
be, closed and that they would be transferred to the
Martinez facility.
Armour denies that he spoke to Lander by telephone
on the morning of February 21. Rapoza denied that he
had any telephone conversation with Lander that day
when Armour was also on the telephone. According to
him, prior to February 21 he had no knowledge of any
renewal of interest as to the union representation among
the Sacramento drivers. Rapoza testified that around 7
o'clock that morning Armour instructed him to close
down the Sacramento facility and transfer the trucks and
drivers to the Martinez facility. At or about 8 a.m.
Rapoza telephoned the Sacramento facility and spoke to
Lander. He told Lander that Respondent was going to
close the Sacramento facility and asked if Thompson was
there. Lander said Thompson was not there. Rapoza said
they were going to close the Sacramento facility and
move the trucks to Martinez because of the extra ex-
pense of having additional dispatchers and outside repair
work on the trucks. Lander said the Sacramento drivers
had a meeting that morning and signed pledge cards to
join the Union. Rapoza said he did not see any problems
because they were moving into a union area and the
drivers could go union if they wanted to. Thereafter, ac-
cording to Rapoza, although he and Lander talked sever-
al times that day regarding moving the trucks to Mar-
tinez, there was no further discussion between them re-
lating to a union.
Rapoza further testified that on that same day he
talked to Joe Williams, one of the Teamsters Local 315
business agents responsible for servicing the Martinez fa-
cility. He told Williams that Respondent was closing the
Sacramento facility and moving the trucks and drivers
into Martinez. He further told Williams that the drivers
had had a meeting that morning and signed pledge cards
and that they wanted to join the Union, and asked if
Williams saw any problems with the drivers coming up
to Martinez and joining Local 315. Williams said he did
not see any problem. Rapoza also testified that on the
following Monday or Tuesday he met with Williams and
Ed Olds. Rapoza asked Williams about the seniority for
the Sacramento drivers at the Martinez facility. Williams
said that they would dovetail with the Martinez drivers,
that they would go on the seniority board where their
seniority in Sacramento would put them and if their se-
niority was higher than one of the Martinez driver's se-
niority then the Sacramento driver would be placed on
the drivers' board above the Martinez driver with lower
seniority. Rapoza further testified that in fact the Sacra-
mento drivers were placed below all the Martinez driv-
ers on the seniority board but that he did not know
about this until the first day of the hearing herein when
he talked to Union Representative Chuck Brooks. Nei-
ther Williams nor Olds testified.
Rapoza also testified that about a week or two after
the closing of the Sacramento facility he met with
Brooks and Al Bonnilla, secretary-treasurer of the Union.
This was a meeting that had been previously scheduled
with Armour, but Armour had to go out of town and
Rapoza met with the union representatives. One of the
union representatives asked why the Sacramento facility
was closed. Rapoza replied that they had no product in
the Sacramento area and that they had the expense of a
dispatch office, two dispatchers, a telephone, and truck
repairs in Sacramento when they had all those facilities
in Martinez. One of them asked if Rapoza had authority
to negotiate a contract. Rapoza said no. One of them
asked if Rapoza thought they would ever open the Sac-
ramento facility again and Rapoza said if the product
became available they probably would. This latter ques-
tion was asked two or three other times during the con-
versation and Rapoza said that the Sacramento facility
559
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could not be opened at the present time because there
was no product in Sacramento.
Rapoza further testified that a few weeks later he
again met with Bonnilla, Brooks, and another person
who he thinks was Don Ennis. Brooks asked if Respond-
ent was ready to bring the trucks back to Sacramento.
Rapoza said no, but that Respondent would be willing to
sign the same contract with the Union that they had
with Local 315 and if and when the trucks returned to
Sacramento that everything would be taken care of.
Brooks said that Respondent should return the trucks to
Sacramento and negotiate a contract, and after the con-
tract was negotiated he would talk about moving the
trucks out of Sacramento. Rapoza said Respondent did
not have any product in Sacramento, they did not have
an office there anymore since the trailer had been re-
turned. The union representatives asked Rapoza to leave
the room so they could caucus, which he did. When
Rapoza returned to the room, he signed a recognition
agreement and agreed to sign an agreement to enter into
a collective-bargaining agreement with the Union and to
recall the Sacramento drivers if Respondent reopened
the Sacramento facility.
The recognition agreement reads:
ARMOUR OIL COMPANY hereby recognizes
TEAMSTERS UNION LOCAL NO. 150 as the
sole collective bargaining agency for an appropriate
unit consisting of all Truck Drivers working for
ARMOUR OIL CO., primarily a Fuel Hauler,
except Supervisors within the meaning of the Na-
tional Labor Relations Board Act, as amended.
In accordance with their understanding at the March
16 meeting, the Union subsequently mailed the following
agreement to Respondent which Rapoza signed on April
10:
SETTLEMENT OF AGREEMENT
Armour Oil Company hereby agrees to enter
into, and to execute, a collective bargaining agree-
ment with Chauffeurs, Teamsters and Helpers Local
Union No. 150, I.B.T., which agreement shall con-
tain all the terms and conditions contained within
the current collective bargaining agreement be-
tween Armour Oil Company and Teamsters Local
Union No. 315. Said agreement shall be effective
from February 1, 1981, through July 1, 1982.
In addition to the above, Armour Oil Company
agrees that in the event of closure of the Sacramen-
to Terminal, all affected employees on the Sacra-
mento Terminal Seniority list as of February 1,
1981, would have the right to be recalled to the
Sacramento Terminal (or terminal located within
the jurisdiction of Local 150), in the event said Sac-
ramento Terminal (or terminal located within the
territorial jurisdiction of Local No. 150) should be
reopened, in accordance with their Sacramento Ter-
minal Seniority. Terminal Seniority will prevail.
According to Rapoza, nothing was mentioned at this
March 16 meeting about the seniority of the Sacramento
drivers at the Martinez facility. Furthermore, according
to Rapoza, he has no knowledge of any grievance being
filed by any employee with respect to the appropriate or
inappropriate seniority accorded him at the Martinez fa-
cility.
Brooks testified that he, Bonnilla, and Ennis met with
Rapoza on March 10 or 13. He asked Rapoza if he had
the authority to negotiate any type of agreement. Rapoza
said he did not. Brooks asked why the Sacramento facili-
ty had been closed and Rapoza said that, because Re-
spondent could not get product on the pipeline, that it
was more economically feasible for Respondent to run
out of Martinez. Brooks asked, "Do you mean to tell me
you can't get product at the Sacramento terminal?"
Rapoza said, "Yes, we can, just as soon as we get some
things cleared up." Brooks said that, during the 1979
contract negotiations, Henry Armour informed him that
Respondent intended for Sacramento to be its hub, that
he expected within a few years to have over 30 trucks in
Sacramento, and that he had the ability to transfer as
much fuel as he wanted through any pipeline wherever
he wanted. Brooks then asked, "You mean to tell me
after Hank tells me that, that you can't get the fuel over
here on this pipeline." Rapoza said, "That's correct."
Brooks asked why the sudden change to move the trucks
out of the Union's area. Rapoza said, "We couldn't get
the fuel into the pipeline and also the mechanics to work
on the trucks." Brooks asked when the decision was
made. Rapoza said Saturday morning, February 21.
Brooks further testified that he, Bonnilla, and Ennis
met with Rapoza on March 16. Armour was supposed to
be there but was not. Brooks asked why Armour was
not in attendance. Rapoza said Armour had some other
business to take care of and he could not make the meet-
ing. Brooks asked, "Well then, do you have the authority
to negotiate an agreement." Rapoza said he did. Brooks
handed Rapoza a recognition agreement and asked if he
would sign it. Rapoza said he would, and did sign it.
Brooks also testified that there was supposed to be an-
other meeting in April but for some reason neither
Rapoza nor Armour could make the meeting. There was
some discussion on the telephone and it was agreed that
Respondent would enter into the same agreement as
Teamsters Local 315 had covering the employees at the
Martinez facility. Brooks said he would draft the agree-
ment and send it to Respondent for a signature. Brooks
said they needed to get back together and develop lan-
guage that would protect the Sacramento employees. It
is not clear from the record whether this telephone con-
versation was with Rapoza or Armour, however, which-
ever one of them it was said he had no problem with
that.
Lynch testified that upon his transfer to Martinez he
was paid about 90 cents an hour more than he had re-
ceived when he worked out of the Sacramento facility.
He also testified that around the first week in March he
had a conversation with Rapoza in the drivers' room.
Other drivers were present and discussing the possibility
of the Sacramento facility reopening. Rapoza said that
Armour thought if it was feasible he would reopen the
Sacramento facility, that he did not spend all the money
560
ARMOUR OIL COMPANY
up there in Sacramento just to have a truck stop, he
wanted a yard, he liked the Sacramento drivers, and he
was very much interested in improving the area and get-
ting more business. Rapoza said Armour had every inten-
tion of having a Sacramento facility and if at all possible
he would return there, start another yard, and just more
or less pick up where they had left off. Lynch said it was
a shame to go through all the improvements and then
turn around and close the facility. Rapoza said well in
the very near future there were other plans in the
making as far as an office and better facilities for taking
care of the trucks and that was all to start "pretty soon."
No other driver testified in corroboration of this conver-
sation.
Ennis testified that, after the Sacramento facility was
closed and the drivers were transferred to Martinez, a
union meeting was held to discuss their legal position.
During the meeting Armour was contacted by the Union
and he asked to speak to a driver, so Ennis spoke to him.
Armour identified himself and asked why the Sacramen-
to drivers were unhappy, that he had jobs for them in
Martinez. Ennis said there were no jobs in Martinez be-
cause the Sacramento drivers were all put on the bottom
of the seniority list and there were no jobs for them.
Armour said no, that he had it handled, that there would
be openings for them. Ennis said he had talked to Lander
and there were no openings for them because of the se-
niority, that they all had to go to the bottom of the list
and there would be no work. Armour assured Ennis that
he would take care of it. Ennis asked if Armour would
be willing to meet with the employees. Armour said that
he would be willing to meet and discuss anything with
them. Ennis asked if he would be willing to talk to them
in person. Armour said yes, he would. Ennis also testi-
fied that at some point in the conversation Armour said
he did not understand it, that if the Sacramento drivers
wanted to be union then they could go to Martinez and
be union. It is undisputed that some of the Sacramento
drivers were laid off for a period of time after they trans-
ferred to Martinez. The layoffs were by seniority. How-
ever, the record does not establish whether any of the
Martinez drivers who were ahead of the Sacramento
drivers on the drivers' board actually had less seniority.
VI. THE DECISION TO CLOSE THE SACRAMENTO
FACILITY AND THE ALLEGED ECONOMIC REASONS
THEREFOR
Armour has been in the oil business for more than 50
years and has owned his own business for more than 40
years. It is apparent from his testimony that he makes all
major decisions and that he is the one who makes all
purchasing and marketing decisions. According to Ar-
mour's credible testimony, the wholesale oil business has
never been completely stable; however, since the 1973
oil crunch it has been even less stable. The 1973 crunch
eliminated between 50 and 75 percent of Respondent's
business due to the shortage of products. The 1979
crunch caused a lesser decrease in business. The differ-
ence in the two periods of shortage was that in 1973
there was a great overall shortage whereas in 1979 there
was not as much of a total shortage but the availability
of products varied widely in different areas. Generally
speaking the effect on Respondent's supply was that in
the area such as Los Angeles and the bay area, where
Respondent received its supplies directly from a refinery,
there was no particular shortage. However, in the areas
such as San Diego, Las Vegas, Phoenix, and Sacramento,
which are serviced by pipelines, there was a shortage.
There have been great fluctuations in product supply and
prices which he anticipates will continue in the foresee-
able future. When Respondent commenced its operations
from the Sacramento facility, it had a fairly good source
of supply from two or three companies at the pipeline. It
was anticipated, however, that Aminoil would be the
principal supplier for the Sacramento operations. This
was based on a general rather than a specific commit-
ment from Aminoil. That is, Respondent was told simply
that the product would be available in sufficient supply
in Sacramento. On a monthly basis, Aminoil would indi-
cate the availability of a certain amount of product for
the month. Then actual availability would depend upon
adjustments made on a day-to-day basis. Armour called
his suppliers daily to find out how much fuel he could
have. He then notified his dispatchers of the source of
supply for that particular day. About 5 or 6 months
before Respondent closed its Sacramento facility, accord-
ing to Armour, the supply decreased to the point where
Respondent was only picking up 10 percent or less of its
product in Sacramento. The five trucks based at the Sac-
ramento facility were picking up supplies from Pacific
Refining in Hercules and UCO in the Martinez area.
Several days before operations were discontinued at the
Sacramento facility, Douglas Smith from Aminoil in-
formed Armour that they had no supply for Respondent
and could not hold out any hope for future availability.
Armour testified that in the wholesale oil business, the
tanker trucks run empty a substantial portion of the time.
This is because they haul only petroleum products which
can be obtained only at a refinery or a pipeline terminal.
Thus, once a truck is unloaded and product delivered to
the customers, there is no possibility of obtaining another
load on the return run back to the refinery or the pipe-
line terminal. Therefore, a truck is empty roughly 50
percent of the time which increases the transportation
cost. Respondent's transportation cost for its entire oper-
ation averages $1 a mile. In mountainous areas, the cost
is somewhat more than that, and in city areas, it is some-
what less. Respondent's trucks carry 8,800 gallons. The
transportion cost to deliver to Sacramento customers
from Martinez is approximately $60. According to
Armour, when the Sacramento facility was opened, it
was beneficial for Respondent to pick up petroleum
product from a pipeline terminal because the difference
in price in Sacramento as compared to the bay area was
such that it would not pay to haul gasoline from the bay
area to Sacramento. Rather, it was cheaper to pick it up
at a Sacramento pipeline terminal even considering the
additional pipeline charge of one-half cent a gallon. Fur-
ther, by February 1981 there had been a decrease in the
cost of the product purchased by Respondent in the bay
area without a corresponding decrease in the cost of the
product purchased by Respondent from the Sacramento
pipeline terminal. In February 1981, when the Sacramen-
561
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to facility was closed, Respondent could purchase petro-
leum products in the bay area for 1-3/4 to 2 cents a
gallon cheaper than it could through the Sacramento
pipeline terminal. As of the time of the hearing herein,
this cost differential had increased to a minimum of 3
cents a gallon or approximately $270 a truckload. Thus,
even though an adequate supply of petroleum product
had become available in the Sacramento area by the time
of the hearing herein, according to Armour, it was not at
a price that Respondent could afford to pay. This is par-
ticularly true since in 1980 Respondent's break-even
margin was 1-1/2 cents a gallon.' 4
Another economic consideration, according to
Armour, was the overhead cost of operating the Sacra-
mento facility. This included the cost of renting the trail-
er and the cost of the telephone. Also, the operation re-
quired 7-day dispatching service. Thus, Thompson
worked as a dispatcher for 5 days and Lander for 2 days
a week at a wage rate of $9.33 an hour plus overtime for
a 12-hour day.15 Also, the repair and maintenance of the
trucks at the Sacramento facility was done by outside
contractors at commercial rates whereas maintenance
and repair, other than major overhauls, for trucks at the
Martinez facility was done by Respondent's employees at
a cost of approximately $20 an hour less than commer-
cial rates. When the Sacramento operation was trans-
ferred to Martinez, all dispatching was done out of the
Martinez office without an increase in the size of the
Martinez dispatch staff. The transfer therefore eliminated
the cost of trailer rent, telephone service, and dispatch
service which had been maintained at the Sacramento fa-
cility. Further, there was a substantial decrease in the
cost for the repair and maintenance of trucks. Thus, ac-
cording to Armour, not only had the initial advantage as
to transportation and product cost vanished but there
was substantial additional expense due to the duplication
of dispatching staff and facilities and the higher cost for
repair and maintenance of equipment. Furthermore, com-
petition prevented Respondent from covering these ex-
penses by increasing its selling price.
As to the timing of the decision to close the Sacramen-
to facility, Armour testified that on a continuing basis he
had been considering the relative economics of maintain-
ing an operation in Sacramento as well as in certain
other locations. The supply of petroleum products in
Sacramento had been diminishing gradually for some
time. Then, in or about October 1980, the supply
dropped appreciably. At that time Douglas Smifh from
Aminoil told him that the supply situation was getting
worse and that Respondent should not expect to obtain
very much petroleum from any of Aminoil's terminals.
At this point, Armour began considering the possibility
of closing the Sacramento operation. The Sacramento fa-
cility had been established in an effort to develop more
business to the north and east of Sacramento. Also, it
was anticipated that economies could be realized by
14 The difference between the price at which Respondent purchased
the product and the price at which it sold the product.
a1 Armour testified that this amounted to a monthly cost of approxi-
mately $6,500. It is unclear from Armour's testimony whether this figure
represented the cost of the total wage package. There is no evidence in
the record to establish the cost of fringe benefits.
making deliveries from a yard in Sacramento since about
50 percent of Respondent's customers who would be
serviced from a Sacramento operation were located in
the city of Sacramento, and the areas where Respondent
anticipated developing business were closer to Sacramen-
to than to any of Respondent's other facilities. However,
with the diminishing of the petroleum supply at the Sac-
ramento pipeline terminal, it was becoming apparent that
it was rather costly to have trucks stationed in Sacra-
mento that had to come into the bay area to pick up
product. Over the next 4 or 5 months Armour and
Rapoza had numerous conversations regarding the possi-
bility of closing the Sacramento facility. According to
Armour, at no time did he discuss this possibility with
Thompson, his reason being that he did not consider that
Thompson's input would be helpful. ' 6
According to Armour, Respondent had an overall loss
in 1980. The Bakersfield, Martinez, and San Diego facili-
ties were the only terminals out of Respondent's 10 facil-
ities operating above the break-even margin. According
to Armour, it is his practice to review data concerning
the profitability of each of Respondent's facilities on a
monthly basis. The Sacramento facility started to operate
at a loss during the last 3 or 4 months of 1980. Armour
further testified that Respondent tries to keep its loss at a
minimum so it moves trucks constantly from one area to
another. It will concentrate and try to develop more
business in locations where margins are greater and will
deliberately not try to develop business in areas where
the margin is shorter. Respondent has opened and closed
facilities at Bakersfield three or four times and has been
in and out of Portland and Seattle even more times. Ac-
cording to Armour, the situation is very unstable in Port-
land and Seattle and at the time of the hearing herein
they were in the process of deciding whether to close
facilities in Portland, Seattle, and Spokane. Respondent's
business in those locations at the time of the hearing was
less than half what it was 90 days earlier and he antici-
pates that it will drop another 50 percent within the next
30 days. Since the Sacramento facility was closed, Re-
spondent has decreased the number of trucks operating
out of its Seattle facility from four to one; out of its
Portland facility from six to two; and out of its Spokane
facility from three to one. The Spokane operation was
cut 3 or 4 months prior to the hearing herein and the Se-
attle and Portland operations were cut about a month
prior to the hearing. At or about the end of 1980 Re-
spondent cut the number of trucks operating out of its
Las Vegas facility from five to one, and out of its Phoe-
nix facility from three to one.
Armour testified that he made the final decision to
close the Sacramento facility while he was at home on
Friday night, February 20. On Saturday, February 21, at
or about 7 or 7:30 a.m., Armour discussed this decision
with Rapoza. He told Rapoza that, since the expense of
operating the Sacramento facility was so high, Respond-
ent would do better to cut off all those expenses and do
iL Thompson was a driver who had been promoted to manager-dis-
patcher. There is no evidence that he had any knowledge of the supply
and marketing aspect of the wholesale oil industry nor that he had any
experience in managing terminals.
562
ARMOUR OIL COMPANY
the dispatching out of Martinez, that they would elimi-
nate not only the payroll but also rental on the trailer
and telephone expenses because they already had all
those facilities in Martinez. Armour further said that,
now that there was no product available in Sacramento,
it would be foolish to keep bearing the expense of oper-
ating the Sacramento facility. Rapoza said he agreed that
it was a waste of money. Armour told Rapoza to handle
the situation, to close the Sacramento facility, and to get
the trucks operating out of Martinez. He further told
Rapoza to make sure that every Sacramento driver was
offered a full job in Martinez undet the Teamsters Local
315 contract. After this conversation, Armour left the
office. Rapoza testified in substantial agreement with
Armour.
According to Armour, prior to this conversation he
had heard nothing about current union activities at the
Sacramento facility. He had not received a telephone call
from Thompson with respect to such activity at the Sac-
ramento facility nor from Lander or anyone else. He fur-
ther denied having any telephone conversation at all
with Thompson or anyone in the Sacramento area prior
to his conversation with Rapoza. He also denied that he
ever said anything to Thompson with respect to what he
would do if the Sacramento drivers were to decide to be
unionized. Similarly, Rapoza denies that he discussed
with Thompson the possibility of closing the yard.
Rapoza also denies that he and Armour mentioned the
Union during their discussions regarding closing the Sac-
ramento yard.
As to why the decision was implemented so suddenly,
Armour testified that things had gotten to a point where
it seemed to be ridiculous to be carrying that additional
expense. He had been putting it off but once he made the
decision he thought it should be implemented immediate-
ly. He further testified that this immediate implementa-
tion on the decision was repetitive of a pattern that he
has previously followed with respect to cutting back or
closing operations. According to him, he has never given
advance notice to anyone with respect to such decisions
but rather has implemented the decision on the same day
that it was made.
According to Armour, he did not learn of the Febru-
ary 21 union activity until about a week thereafter. He
learned of it either from Rapoza or possibly Jess Lander.
Rapoza testified that after instructing Lander what to do
about closing the Sacramento facility, he first made a
report to Armour by telephone on the following
Monday. Armour telephoned him and wanted to know if
the yard had been closed and the equipment and drivers
moved to Martinez. Rapoza said yes, and there was no
further discussion on the subject.
Vii. CONCLUSIONS
A. Thompson's Statements
Several drivers testified that Thompson told them that
the Sacramento facility was nonunion and was going to
stay that way, that the Sacramento facility would be
closed if the employees chose to be represented by a
union, and that he would discharge any driver advocat-
ing union representation. Thompson did not testify.
However, notwithstanding that their testimony is unden-
ied, I find that the testimony of certain of these drivers is
not credible or is unreliable in some respects. 7 Thus,
Fox is not sure whether he or Thompson said the trucks
would be moved to Martinez if the Union was voted in.
Baltz testified on direct examination, as to a November
conversation, that Thompson said there was no way the
facility would go union, that Armour would close it; yet,
on cross-examination his testimony as to the conversation
contains no such reference. Then on redirect examina-
tion, he testified that Thompson said, "It will never be a
union shop here."
Wright testified that when he was hired in May 1980
Thompson told him the Sacramento facility was non-
union, would remain nonunion, and he would not toler-
ate any union discussion in the facility. Yet when he tes-
tified on cross-examination as to this conversation, he did
not relate any such remark. Further, there is this same
contradiction, as to a critical remark, between his testi-
mony on direct and that on cross-examination. I con-
clude that the testimony of Fox, Baltz, and Wright is un-
reliable as to the critical statements allegedly made by
Thompson during these conversations and I do not
credit them in this regard. Further, for reasons discussed
more fully below, I found Lander to be an unreliable
witness whom I do not credit. I do not find the testimo-
ny of Fox,' 8 Lynch,e 9 Hilbun, Shepherd, and Ennis to
be internally inconsistent or contradictory. Further, their
testimony tends to be mutually corroborative in that they
testified as to similar statements made by Thompson.
Therefore, I credit their undenied testimony as to con-
versations with Thompson. Accordingly, I find that Re-
spondent violated Section 8(a)(1) of the Act by Thomp-
son's statements to Lynch, Hilbun, and Ennis that the
Sacramento facility would be closed if the employees
chose union representation; by Thompson's statements to
Fox and Shepherd that the Sacramento facility was non-
union and was going to stay that way; and by Thomp-
son's statement to Fox, Shepherd, and Ennis that he
would discharge any driver who advocated the Union.2 0
B. The Closing of the Sacramento Facility
The complaint alleges that the closing of the Sacra-
mento facility was unlawful. In support thereof, the Gen-
eral Counsel argues that Respondent was determined to
keep the Sacramento facility nonunion and that this de-
termination was motivated by its desire to operate under
the lower cost of the Bakersfield contract rather than the
Martinez contract; to have available nonunion drivers at
17 I have fully considered the General Counsel's argument as to the
inference which should be drawn from Respondent's failure to call
Thompson to testify. However, Thompson is no longer in Respondent's
employ and he was available to the General Counsel as well as to Re-
spondent.
m' I did not credit Fox above as to the one conversation only because
he was not sure whether he or Thompson had made the coercive state-
ment.
"' Although Wright and Ennis testified, I note that Lynch was not
always certain as to the identity of the other drver(s) present and neither
Wright nor Ennis was questioned as to these conversations.
'20 The statements made by Thompson to Lynch and Ennis in August
1980 regarding the Sacramento facility being and/or remaining nonunion
are outside the 10(b) period.
563
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Sacramento facility to use in order to make deliveries
in the Martinez territory in the event of a labor dispute
there; and to assure its freedom of action without union
interference.
However, this argument, in essence, could be said to
describe the desires of almost all employers. Yet it does
not necessarily follow that an employer is willing to dis-
criminate against employees because they choose to be
represented by a union. Further, Respondent's operations
have been union for a number of years. Respondent is
used to operating with the "interference" of a union; and
when it opened its Sacramento facility, Respondent con-
tacted the Union and thereafter engaged in collective-
bargaining negotiations with the Union. Even though
Respondent proposed the terms of the Bakersfield's con-
tract and opposed the terms of the Martinez contract, it
did not take a "take-it-or-leave-it" position since Brooks
testified that by the time of the last negotiation session
they had come very close to the terms of the Martinez
contract. This does not seem to be the actions of an em-
ployer determined to avoid dealing with a union.
On the other hand, Thompson's statements and the
timing of the closing of the Sacramento facility tend to
support the General Counsel's position. Thus, the Gener-
al Counsel argues, in view of Thompson's responsible
position with Respondent and the frequency of his con-
tacts with Armour, his statements that the continued ex-
istence of the Sacramento facility was dependent upon its
continued nonunion status warrant an inference that they
were based on Thompson's discussions with Armour.
Further, the General Counsel contends, Respondent's
failure to call Thompson as a witness justifies an infer-
ence that he would have testified adversely to Respond-
ent with respect to the basis of his statements about
unions.
Contrary to the urgings of the General Counsel, I
draw no adverse inference from Respondent's failure to
call Thompson as a witness. As indicated above, Thomp-
son is no longer in Respondent's employ. He was availa-
ble to both the General Counsel and to Respondent. Nei-
ther of them called him as a witness.
As to the General Counsel's argument regarding the
basis for Thompson's statements, there is no evidence
that Thompson's duties and responsibilities extended
beyond dispatching and hiring for the Sacramento facili-
ty and arranging for the maintenance of the trucks locat-
ed there. There is no evidence that he had any manageri-
al responsibilities that involved Respondent's overall op-
erations. Basically he was a dispatcher with authority to
hire and fire. Further, considering that he told Ennis that
Armour had met his demands by inter alia agreeing to
Lander being permanently in the office, and the fact that
Lander continued, as before, to relieve Thompson only
for 2 days a week, it appears that Thompson had a tend-
ency toward exaggeration.
In all the circumstances, including my observation of
their demeanor on the witness stand, I credit Armour's
and Rapoza's denials that they said anything to Thomp-
son regarding union representation at the Sacramento fa-
cility. Also, despite the urgings of the General Counsel, I
draw no inference from the fact that Armour spoke to
Thompson by telephone almost daily. Insofar as the
record reveals, these telephone calls were made to
Thompson, in his capacity as dispatcher, simply to
inform him of the daily sources of supply.
The General Counsel further argues, as indicia of un-
lawful motivation, Respondent's failure to follow its es-
tablished practice of seeking to reduce the number of
trucks assigned to a location rather than closing the fa-
cility, particularly since the expenditure of considerable
money on developing the yard and the plans for expan-
sion provided strong justification for Respondent to keep
the yard open. The record does not support this argu-
ment. Thus, Armour testified, without contradiction, that
he has opened and closed facilities in Bakersfield and Se-
attle several times. Also, the paving of the truckstop and
the installation of lighting and a wash rack are not such
major capital expenditures as to justify a conclusion that
a prudent businessman would not abruptly abandon such
improvements. This is particularly true since these im-
provements are of the type which would enhance a serv-
ice station and truckstop and Armour and Rapoza testi-
fied that this was the only Gas-N-Save station and truck-
stop that was unpaved and Respondent considered that
paving the area would make it more attractive to truck-
ers.
As to timing, the General Counsel correctly argues
that, where an employer takes an action affecting the
employment status of its employees shortly after learning
that the employees have sought union representation, the
timing warrants an inference that the employer's action
was motivated by the union activities of its employees;
and the abrupt nature of the action and a lack of warning
are indicia of unlawful motivation. Howard Johnson Com-
pany, 209 NLRB 1122 (1974); Industry General Corpora-
tion, 225 NLRB 1230 (1976). However, I find that any
such inference has been rebutted here. Thus, Armour tes-
tified, without contradiction, that Respondent's practice
always has been to close facilities abruptly without prior
warning.
The only evidence that Respondent had knowledge of
its employees' union activity prior to the closing of the
yard, aside from the coincidence of both occurring on
the same day, is the testimony of Lander. However, I
find Lander's testimony to be inconsistent and contradic-
tory and it is contradicted by the testimony of other wit-
nesses for the General Counsel. Thus, he testified that he
was at Sambo's briefly at or about 5:45 a.m. before the
meeting started, that all the Sacramento drivers were
there, and that he saw Santos there. Yet some of the
driver-witnesses variously testified that they did not
arrive until after the meeting started, that the meeting
did not start until after 6 a.m., and that Santos testified
that he arrived late because he did not know that the
meeting had been changed to Sambo's until he saw
Lander at Eppie's and Lander told him the new location
of the meeting.
Also Lander testified that on February 21 he spoke to
Armour and Rapoza by telephone and that it appeared to
him that both of them were on the telephone at the same
time. Yet his account of the conversation contains abso-
lutely no reference to any remark by Armour. Lander
first testified that Santos told him and Thompson at
564
ARMOUR OIL COMPANY
Eppie's prior to 7 a.m. that the drivers had all signed
pledge cards. Then he later testified that Santos said the
drivers were over signing pledge cards. Yet other driver-
witnesses testified that the cards were signed at the meet-
ing, that the meeting did not end until after 7 a.m., and
that Santos remained at Sambo's for some period of time
after the close of the meeting. Finally, Lander testified
that shortly after 7 a.m., from the office of the Sacra-
mento facility, Thompson telephoned Armour and told
him that the drivers had signed union pledge cards that
morning and then Thompson left the office at or about
7:30 a.m. Yet, on rebuttal, Lander testified that he did
not see Thompson in the office that morning and that
Thompson left at 7 a.m. to make a run to Oroville.
In these circumstances, I find Lander to be a totally
unreliable witness whom I do not credit. On the other
hand, I found Armour and Rapoza to be reliable wit-
nesses and credit their denial that they had any conversa-
tion with Thompson that morning and that they had any
knowledge of the February 21 union activity until after
Rapoza telephoned the Sacramento facility to instruct
that the facility be closed. I further credit Armour that
he made the decision to close the Sacramento facility on
the night of February 20 for valid business reasons. In
this regard, I note the almost total unavailability of prod-
uct from Aminoil, Respondent's principal supplier in
Sacramento; Respondent's pattern of transferring its
trucks between facilities, sometimes reducing or increas-
ing the size of its operations at a specific location and
sometimes opening or closing a facility in response to the
supply and demand at a particular location; the duplica-
tion of dispatching and office expenses and the increased
cost of truck maintenance occasioned by the maintenance
of a Sacramento facility; Respondent's long history of
collective bargaining with Teamsters locals; its past his-
tory of bargaining with the Union; and the fact that all
the Sacramento drivers were transferred to Martinez, a
union operation.
In these circumstances, I find that Respondent did not
close its Sacramento facility and transfer its employees at
that facility to its Martinez facility because of their union
activity. Accordingly, I find that Respondent did not
thereby violate Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has interfered with, restrained, and co-
erced employees in violation of Section 8(a)( ) of the
Act by telling employees that they would not be allowed
to obtain union representation; by threatening employees
that they would be discharged if they sought union rep-
resentation; and by threatening employees that Respond-
ent would close its Sacramento facility if the employees
selected a union as their collective-bargaining representa-
tive.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The evidence does not establish that Respondent has
engaged in any unfair labor practices except as set forth
above.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent cease and desist therefrom and take certain affirma-
tive action in order to effectuate the purpose of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
proceeding, and pursuant to Section 10(c) of the Act, I
hereby recommend the following:
ORDER 1
The Respondent, Armour Oil Company, Martinez and
West Sacramento, California, its officers, agents, succes-
sors, and assigns, shall:
I. Cease and desist from:
(a) Telling employees that they will not be allowed to
obtain union representation.
(b) Threatening employees that they will be dis-
charged if they seek union representation.
(c) Threatening employees that it will close one of its
facilities if the employees at that facility select a union as
their collective-bargaining representative.
(d) In any related manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed in the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its place of business in Martinez, California,
copies of the attached notice marked "Appendix."2 2
Copies of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by its au-
thorized representative, shall be posted by Respondent
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 ensure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
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 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' In the event that this 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
565