Ashland Oil Co. of California

National Labor Relations Board - Board Decisions

Sep 22, 1972

199 N.L.R.B. 231 (N.L.R.B. 1972)

ASHLAND OIL COMPANY
Ashland Oil Company of California and General Truck
Drivers, Chauffeurs, & Helpers Union Local 692,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Cases 21-CA-10283 and 21-RC-12310
September 22, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On June 6,1972, Administrative Law Judge 'Rich-
ard D. Taplitz issued the attached Decision in this
proceeding. Thereafter, Respondent files exceptions
and a supporting brief, to which the General Counsel
filed a reply.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Ashland Oil Company of
California, its officers, agents, successors, and assigns,
shall take the action set forth in the Administrative
Law Judge's recommended Order.
IT IS FURTHER ORDERED that the election held on
September 13, 1971, in Case 21-RC-21310, be, and it
hereby is, set aside, and that said case is hereby re-
manded to the Regional Director for Region 21 to
conduct a new election at such time as he deems that
the circumstances will permit the free choice of a
bargaining representative.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 The General Counsel's request to correct the inadvertent use of the name
Simas instead of Sanford by the Administrative Law Judge in his Decision
(sec III A 4) is hereby granted.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Trial Examiner: This case was tried
231
at Los Angeles, California, on February 3 and 4, and April
20, 1972. It is a consolidated proceeding involving a com-
plaint of unfair labor practice against Ashland Oil Compa-
ny of California (Case 21-CA-10283) and objections to the
conduct of Respondent affecting the results of an election
in which Respondent's employees participated (Case 21-
RC-12310). The alleged unfair labor practices under Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act, as
amended, include within them the same conduct on which
the objections to the election are based.
In Case 21-CA-10283 a charge was filed on September
13, 1971,' against Respondent by General Truck Drivers,
Chauffeurs & Helpers Union Local 692, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union. The complaint
dated November 9, 1971, as amended on January 14 and 26,
1972, alleges that Respondent violated Section 8(a)(3) and
(1) of the Act by discharging its employee Douglas L. Mulkey,
Jr., and in addition violated Section 8(a)(1) of the Act
by threatening to close its terminal if the employees sup-
ported the Union, by threatening to reduce the economic
benefits of employees and more stringently enforce rules if
the employees selected the Union as their bargaining agent,
and by interogating employees concerning their union ac-
tivities and the union sympathies of fellow employees.
In Case 21-RC-12310, the Union filed a petition on Au-
gust 2, 1971, seeking an election at Respondent's Long
Beach, California, terminal. Pursuant to a stipulation for
certification upon consent election signed by the parties and
approved on August 20, by the Regional Director of Region
21 of the Board, an election was held on September 13,
among the employees at Respondent's Long Beach terminal
in a unit consisting of: All yardmen loaders, maintenance
men, dispatchers and truck drivers, but excluding all office
clerical employees, professional employees, guards, watch-
men and supervisors as defined in the Act. The employees
cast three votes for and five votes against the Union. In
addition, there was one challenged ballot. On September 22,
1971, the Union filed timely objections to the conduct of
Respondent affecting the results of the election. After inves-
tigation of the objections, the Regional Director in his re-
port on objections and order directing hearing and order
consolidating cases and notice of hearing, dated November
10, concluded that one objection should be dismissed but
that two other matters, which were also the subject matter
of the complaint in Case 21-CA-10283, could best be de-
termined in a hearing with the related allegations of the
complaint. Those two objections related to the discharge of
Mulkey and a threat to close the terminal. The Regional
Director consolidated Cases 21-CA-10283 and 21-RC-123
10 and further ordered that after hearing, ruling , and deci-
sion by a Trial Examiner, Case 21-RC-12310 be transferred
to the Board. On November 29, the Board adopted the
recommendations contained in the Regional Director's re-
port.
Issues
The primary issues are: whether Respondent violated
i All dates are in 1971 unless otherwise specified
199 NLRB No. 42
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(3) and (1) of the Act by discharging Douglas
L. Mulkey because of his activities on behalf of the Union;
whether Respondent violated Section 8(a)(1) of the Act by
making various threats to employees to discourage union
activity and by interrogating them about such activity; and
whether the election should be set aside because of
Respondent's conduct.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses , to argue orally and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record of the case and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a California corporation engaged in the
nonretail sale and distribution of petroleum products at its
terminal located at 1920 Lugger Way, Long Beach, Califor-
nia. It annually purchases and receives goods valued in
excess of $50,000 directly from suppliers located outside the
State of California . Respondent is an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Violations of Section 8(a)(1) of the Act
1. Agency and background
Respondent is in the business of selling gasoline to gas
stations. It operates from terminals in Long Beach, Rich-
mond, and Oakland, California, with its main office in Oak-
land. Walter Simas is president and chief executive officer
of Respondent. Directly under Simas in the supervisory
heirarchy is Fred Rascon, who is the overall manager of all
of the terminals. He manages the terminals with regard to
all matters, including personnel, and he has hired employees
on a number of occasions. One of the terminal managers
whom Rascon supervises is Robert J. Sanford. Sanford is in
charge of and is responsible for the operation of the Long
Beach terminal. Except for an occasional visit from Rascon,
who is stationed in Oakland (the San Francisco Bay area),
Sanford is the only representative of management at the
Long Beach terminal (the Los Angeles area). He assigns
work to employees; has authority to recommend the hire
and fire of employees ; and issues warning slips and grants
time off to employees. Simas, Rascon, and Sanford are su-
pervisors within the meaning of the Act.
Respondent has contracts with certain unions in the San
Francisco Bay area covering employees in that area, but has
not recognized any union as the representative of employees
at the Long Beach terminal. Respondent employs approxi-
mately nine yardmen, loaders, maintenancemen , dispatch-
ers, and truckdnvers at the Long Beach terminal. In May
or early June, one of the drivers, Douglas L. Mulkey, Jr.,
contacted a representative of the.Union and an organiza-
tional campaign began which resulted in the election proce-
dure set forth above.
2. The Credibility of Sanford and Rascon
As manager of all of Respondent's terminals, Rascon
had general authority over the terminals, including authority
over personnel matters. Simas was often away from the
office on his own independent business matters and the
terminal managers reported directly to Rascon. Sanford
spoke to Rascon on the telephone almost every day. When
Sanford received a copy of the petition for an election that
had been filed on August 2, 1971, and later, several weeks
before the September 13 election, when he received notice
that the election was to take place, he mailed copies of those
documents to the main office. In spite of these admitted
facts, Rascon testified that he learned for the first time that
there was a union campaign going on only 2 days before the
election. He averred that he was not aware that a petition
had been filed until that time. According to Rascon, he
never discussed the petition or the campaign with Simas and
he first heard of it when Sanford called him and mentioned
the election just 2 days before it took place. He denied that
he talked to Sanford about the union situation when he went
to the Long Beach terminal a few days before the election.
Sanford testified that he never discussed the union cam-
paign with Simas and that he did not discuss it with Rascon
until a few days before the election. Simas, Rascon, and
Sanford were certainly concerned about the union cam-
paign. Simas sent the employees an antiunion letter and
both Rascon and Sanford admittedly spoke to the employ-
ees in an effort to persuade them to vote against the Union.
It is simply inconceivable that in these circumstances Ras-
con would have been completely ignorant of any union
activity until a few days before the election or that Sanford
would have refrained from discussing the matter with Ras-
con. Their testimony that there was an almost complete lack
of communication between them on this important person-
nel matter is unbelievable and sheds doubt on their credibil-
ity generally.
3. The alleged interrogation and threats
In May, David Dingee was hired by Rascon as a driver
for the Long Beach terminal. During the employment inter-
view, Rascon said that they had a union in the plant up
north and they didn't want one at Long Beach. He asked
Dingee whether he was a union member.2
Also in May, Rascon spoke to Mulkey about the Union.
Rascon approached Mulkey while he was checking his truck
and asked him what he thought of the Union. Mulkey re-
plied that he had no need for a union and it was no concern
of his. Rascon then said that the Union was trying to get in
and that Respondent had closed down before and would do
it again if the Union was successful.3
2 This finding is based on the credited testimony of Dmgee. I do not credit
Rascon's denial.
3 This finding is based on the credited testimony of Mulkey. I do not credit
Rascon 's denial.
ASHLAND OIL COMPANY
In July, Sanford, while in his office, spoke to Mulkey and
some other employees about the Union. He told them that
he wasn't concerned whether or not there was a union or
whether or not the employees wanted one, but that if they
voted for the Union, Respondent would close down as it
had before.'
The petition for an election was filed on August 2. In the
early part of August, Sanford spoke to employee David
Dingee about the Union. He told Dingee that the Union
couldn't give them very much as far as benefits were con-
cerned and that the old man (Simas) didn't want the Union
because he was particular about how people told him to run
his business. Sanford also said that there was a possibility
that if the Union came in, the plant could change from what
it was to a bulk plant or be closed down .5
On August 29, employee Willie Smith told Mulkey that
two other employees had informed Sanford that Mulkey
had spoken to them about the Union. Later the same day,
Mulkey went to Sanford's motel room and told him that he
decided to be represented by a union and that he had talked
to other employees about it. Sanford then picked up a paper
that related to a misdumping (placing the wrong octane of
gasoline in a gas station tank) incident and said "You know,
I could have fired you before." Sanford also said that he
hadn't told higher officials about it and added "You know,
the Company will close if you guys vote the Union in. They
have done it before." Mulkey replied that he didn't believe
it and Sanford answered that he was closer to the Company
and had a better understanding of what they would and
wouldn't do.
In late August, Sanford also spoke to employee Robert L.
Chinery. Sanford said "So you guys want the Union." Chin-
ery answered in the affirmative and Sanford then replied,
"Well, if the Union gets in, they will probably close the
terminal down." Sanford also said that he had reason to fire
a man.'
On September 9, Respondent sent the following letter to
the employees:
A union election will be next Wednesday.
IF THE UNION WINS, WHAT HAPPENS? It
wins only the right to talk. The talk is called "bargain-
ing".
A union does not mean any automatic increase in
wages or benefits.
Bargaining can start from "zero". Present wages
and benefits could end up better. THEY ALSO
COULD END UP THE SAME OR WORSE.
The only way a union can try to force the Compa-
ny to do anything it is not willing to do is to pull you
out on strike.
If the union calls a strike over wages , your job is
4 This finding is based on the credited testimony of Mulkey. I do not credit
Sanford's denial.
S This finding is based on the credited testimony of Dmgee . I do not credit
Sanford's denial.
6 These findings are based on the credited testimony of Mulkey. Sanford
acknowledged that Mulkey told him that he was behind the Union but
denied the balance of the conversation . I do not credit Sanford 's denial
7 These findings are based on the credited testimony of Chmery . I do not
credit Sanford 's denials.
233
on the line. You can be replaced.
A strike could cause us to lose business. It might
cause us to have to shut down the terminal. If so, your
job would be gone.
Big unions are big business. They are impersonal.
They are cold. They want your money. You mean noth-
ing to them.
I ask you to vote NO UNION
Vote: X
Yes No
IF YOU SIGNED A UNION CARD, YOU DO
NOT HAVE TO VOTE UNION.
A few days before the election of September 13, San-
ford spoke to Rascon on the telephone about the election.
A day or two before the election, Rascon came to the Long
Beach terminal and had conversations with the employees.
Both Rascon and Sanford acknowledged that they spoke to
the employees about the forthcoming election. Rascon testi-
fied that he individually told the employees that the drivers
had plenty of work and were getting union wages and health
plan; that if the Union came in, they would have to pay
dues; that if the Union came in and the Company and
Union didn't agree, there could be a strike; that the Compa-
ny had to operate and some other people would keep it
operating in the event of a strike; and that Respondent
didn't like any outsiders coming in . He also testified that
when he spoke to Rembolt, Rembolt told him that he was
afraid the Union would hurt his family and that he (Rascon)
answered that there was no way that the Union could hurt
him. Sanford testified that when he spoke to the employees,
he told them that they were getting union pay and benefits
and that the Union might not be able to come through with
its promises. He also testified that he said: why bung in
outsiders?
Employee David Dingee testified that Rascon said a
great deal more in this conversation. According to Dingee:
Rascon asked him if he was satisfied with the way things
were and he replied that a few things could be improved;
Rascon asked him what he thought of the coming election
and he replied that he was waiting to see what everyone else
thought before he made up his mind; and Rascon then told
him that if the Union got in , things could change, that
Respondent was pretty lax in the rules but that they could
go strictly by the rules. I credit Dingee's testimony and do
not credit Rascon's denials.
Employee Roy Rembolt testified that Rascon's conver-
sation with him the day before the election was quite differ-
ent than Rascon's version. According to Rembolt: Rascon
told him there was an election the next day and asked him
how he was going to vote; he answered he didn't know;
Rascon asked him how he felt about the Union and he
replied that he wouldn't say; Rascon then asked him if he
had spoken to anyone else about the Union and he acknowl-
edged that he had spoken to Mulkey; Rascon said that he
should not listen to Mulkey, who was a troublemaker; and
Rascon asked if he had any idea how the other employees
felt about it. Rembolt also testified that told him that it
wouldn't do them any good even if the Union got in because
the Union couldn't get them anything; that the plant could
close down and leave them without a job; and that he might
not even make as much as he was presently making if the
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union got in. I credit Rembolt's testimony and do not credit
Rascon's denials.
The evening after the election , Sanford and Rascon
together confronted Rembolt. Rascon asked him how he
had voted and he replied that the wouldn't say. Rascon then
accused him of stabbing him in the back. Rascon also said
that there were only three votes for the Union; that one was
Chinery, one was Dingee and the other had to be Rembolt
because he knew how the others had voted. Rascon then
said, "Well, I will get all three of you guys."8
4. Conclusions with regard to the alleged
interrogation and threats
I find that Rascon and Simas interrogated employees
concerning union activities and threatened them with re-
prisals for such activities. In May, Rascon interrogated Din-
gee concerning his union membership; also in May, Rascon
interrogated Mulkey by asking him what he thought of the
Union; shortly before the September 13, 1971, election,
Rascon interrogated Dingee by asking him what he thought
of the coming election and interrogated Rembolt by asking
him how he would vote and how other employees felt about
the Union; and after the election, Rascon interrogated
Rembolt concerning how he voted. In August, Sanford in-
terrogated Chinery by seeking a response to the remark "so
you guys want the Union." In the context of the union drive,
these interrogations in themselves would tend to interfere
with employees in the exercise of rights of organization
guaranteed by Section 7 of the Act. Webb Tractor and
Equipment Co., 167 NLRB 383. When, as here, the interro-
gation was coupled with threats against employees, the vio-
lation of Section 8(a)(1) is even clearer. Rascon made these
threats in May to Mulkey when he said that the plant would
close if the Union came in. He also threatened Rembolt
before the election when he said that the plant could close.
Sanford told Mulkey and others in July that the Company
would close if the Union came in ; he told Dingee in August
that there was a possibility that the plant could close; he
told Mulkey on August 29 that the plant will close; and told
Chinery also in August that the plant would probably close
if the Union came in . In totality, these statements unequivo-
cally informed the employees that Respondent would retal-
iate against them in a way that would cost them their jobs
if they chose the Union. These threats were not protected
free speech but were impermissible threats of economic re-
prisal to be taken solely on Respondent's own volition. N.L.
R.B. v. Gissel Packing Co., 395 U.S. 575 (1969); Blaser Tool
& Mold Company, Inc., 196 NLRB No. 45.
Rascon's threat to Dingee a few days before the elec-
tion to the effect that Respondent had been lax in enforce-
ment of the rules but would go strictly by the rules if the
Union got in was an unveiled threat to make working condi-
tions more difficult for the employees if they chose the
Union. As did the threats to close the terminal, the threat
to enforce work rules more stringently violated Section
8(a)(1) of the Act. Holland Custard and Ice Cream Inc., 158
NLRB 1137, 1142.
8 These findings are based on the credited testimony of Rembolt . Rascon
testified that he drank too much after the election and that he didn't remem-
ber anything that happened thereafter.
In his letter to employees dated September 9, Simas
pointed out that bargaining could start from zero and that
wages and benefits can end up better or worse. In "bargain-
ing from scratch" statements such as these , the Board has
looked to the totality of an employer's conduct in deciding
whether the statements can reasonably be read as a threat
to discontinue existing benefits or whether they are simply
descriptive of a possible bargaining strategy of the employ-
er. Host International, Inc., 195 NLRB No. 66. In the instant
case , the "bargaining from zero" statement must be looked
at in the context of Respondent's unlawful threat to make
working conditions more difficult and close the plant if the
Union came in as well as-the repeated instances of unlawful
interrogation. Prior to the letter, Respondent had created an
atmosphere of coercion. Cf. C & K Coal Company, 195
NLRB No. 196. Viewing Respondent's conduct as a whole,
I find that the letter of September 9 was a threat to reduce
benefits if the employees selected the Union. Aerovox Cor-
poration of Myrtle Beach, South Carolina, 172 NLRB No. 97,
enfd. 435 F.2d 1208 (C.A. 4, 1970).
I find that, as alleged in the complaint, the Respondent
violated Section 8(a)(1) of the Act by interrogating employ-
ees concerning their union activities, by interrogating an
employee concerning the union activities of other employ-
ees, and by threatening to reduce benefits, enforce work
rules more stringently, and close the terminal if the employ-
ees selected the Union to represent them.
B. The Discharge of Mulkey
1. The General Counsel's case
Douglas L. Mulkey, Jr. was hired by Rascon as a fuel
tank truckdriver on April 26, 1971. He held that job until'
September 7, when he was discharged, allegedly in violation
of Section 8(a)(3) of the Act. His duties were to fuel trucks
at the Long Beach terminal and deliver the fuel to stations
pursuant to written instructions. In his employment inter-
view, Mulkey said that he had prior experience with trucks
and mobile equipment and that he could do maintenance
work and repairs. After Mulkey was hired, Sanford request-
ed him to make occasional repairs on equipment and he did
so. In July, Rascon, while visiting the Long Beach terminal,
told Mulkey that he had a conversation with Simas in which
Mulkey was mentioned. Simas had asked Rascon why Mul-
key had been hired without any previous tanker experience
and Rascon replied that Mulkey had been hired because he
had prior experience with trucks and was able to take care
of them. Simas also asked why Mulkey was number one
truck driver and Rascon answered that it was because Mul-
key was better than the rest of the truck drivers put together.
A few days later, Rascon asked Mulkey what he thought of
being a terminal manager. Mulkey replied that he was inter-
ested in the position. A few days after that, Mulkey ap-
proached Sanford and asked him if there was a serious
possibility of his becoming terminal manager. Sanford re-
plied that Mulkey was the most efficient driver they had and
that there was a good possibility but that his age (29) might
go against him .9
9 These findings are based on the credited testimony of Mulkey. Rascon's
denials are not credited Sanford acknowledged that he complimented Mul-
key on his work when Mulkey was working day shifts prior to July 1971. He
ASHLAND OIL COMPANY
In late May or early June, Mulkey contacted a repre-
sentative of the Union concerning the possibility of organiz-
ing Respondent's employees. From that time to his date of
discharge, he was a major spokesman for the Union at the
terminal . On July 22, he went to the union hall and told the
business agent that he and other employees were interested
in being represented. He signed a card at that time and
picked up literature, stickers, and authorization cards to
distribute among the employees. Within the next few days,
he spoke to five or six employees at the terminal and distrib-
uted literature, stickers, and cards to them. He received two
signed cards back at the terminal and returned them to the
union hall. Thereafter, during the rest of his employment,
he intermittently spoke to the employees about the Union
while at the terminal. At the time, there were six drivers
including himself.
As set forth more fully above, Mulkey told Sanford on
August 29, 1971, that he had decided to be represented by
the Union and that he had talked to other employees about
it. Sanford told him that he could have fired him before and
threatened that the plant would be closed down if the Union
was voted in. Also in late August, Sanford told employee
Chinery, in the context of a threat to close down the termi-
nal if the employees selected the Union, that he (Sanford)
had reason to fire a man. On September 7,1971, a little more
than a week after Respondent learned from Mulkey that he
was active on behalf of the Union and less than a week
before the September 13 election, Mulkey was discharged.
2. Respondent 's defense
a. Respondent's policy and the first two misdumpings
Simas , Rascon and Sanford all testified that there was
a company policy to the effect that employees were to be
discharged upon receipt of a third warning letter relating to
derelictions of duty . However, employee David Dmgee
credibly testified that he received four warning letters with-
out being discharged . He received one when he had an
accident and bent the exhaust stack of his truck ; he received
another when he misdumped the wrong octane gasoline into
a service station tank ; he received a third for running over
and breaking a gas hose ; and he received a fourth for im-
properly making out an invoice . Subsequently, he quit be-
cause he did not like the equipment that he was assigned to.
Even if there was a company policy concerning three warn-
ing slips , it appears that that policy was not uniformly or
invariably followed.
On July 19, Juan Gomez, manager of a Sunco Service
Station on Gaffee Street in San Pedro , California , called
Sanford and told him that on July 16 there had been a
misdump of premium octane gasoline into his regular oc-
tane tank . The misdumpmg had been made even though
there were metal tabs embedded in the concrete saying
which tank contained premium , ethyl, and regular gasoline
as well as markings in white paint . Sometime later, Sanford
came and checked the records at that station . In the latter
part of July, Sanford spoke to Mulkey about the misdump-
also testified that he spoke to Rascon about the possibility of making Mulkey
a manager
235
ing and Mulkey denied making that mistake . On August 7,
Sanford called Mulkey into his office and asked him to sign
a letter regarding the misdumping. Mulkey asked why he
had to sign when he didn't believe that it was his mistake.
Sanford replied that it wasn't important; that he was told
by the Oakland office to write a report on it; and that it
wasn't anything to worry about. Mulkey signed the warning
notice for the misdump. The warning notice stated that
further dereliction of company rules would be deemed in-
subordination and dust cause for dismissal.
Sanford wrote a second warning notice at the same
time he wrote the first but he did not deliver the notice to
Mulkey until September 7, the date of discharge. The sec-
ond notice was for a misdumping that Mulkey had admit-
tedly made on July 23, 1971, at a USA station in Azusa,
California. Sanford found out about the second misdump-
ing on July 25. He confronted Mulkey with it and Mulkey,
after checking over his books, acknowledged that he had
copied a number incorrectly from the dispatch sheet and
had make the misdump. Sanford then said that he would try to
straighten it out with the manager, and later that day he told
Mulkey that he had arranged to take another load of premi-
um octane to the same tank to bring the octane rating up.
Sanford also told him that there wasn't anything to worry
about because it had been straightened out to everyone's
satisfaction. Sanford testified that he did not write up either
of the warning slips at that time because he didn't want to
get Mulkey in trouble and that he had not yet received
confirmation of the first misdump.
It is beyond dispute that misdumpings are a serious
matter and that Respondent was justifiably concerned
about them. Misdumpings could result in the gas station
selling the wrong gas to customers and could cause serious
repercussions for Respondent. Whether or not
Respondent's drivers saw them, the tanks at the gas station
were marked to show what type of gasoline they should
contain and the drivers should have been able to avoid
making misdumps. There were outstanding instructions
that in the event of any questions, drivers were to call San-
ford before making any deliveries.
b. The third misdump and the discharge
On August 19, Mulkey made a delivery to USA service
station in Baldwin Park. His dispatch orders instructed him
to unload 3550 gallons of regular octane gasoline into the
station's number I tank and he carried out those instruc-
tions . The dispatch had been made out by Roy Rembolt,
who at the time was filling in as dispatcher. Rembolt ac-
knowledged that the had made a mistake and put the wrong
tank number on Mulkey's dispatch order.
A few days later, Sanford approached Rembolt and
told him that Mulkey had misdumped at the USA station.
They checked the dispatch sheet and found that it was in
error and that Mulkey had made the delivery the way it had
been dispatched. Rembolt asked whether he was in trouble.
Sanford replied that he was not and that Mulkey should
have known better. Subsequently, Jim Silva, the regular
dispatcher, changed the dispatch in question so that where
it had said tank 1 it read tank 4. He testified that he did this
for his own records after the delivery had been made. No
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one from Respondent spoke to Mulkey about the misdump
until September 7, the date of his discharge.
On September 3, which was the Friday before Labor
Day, Sanford called Paul Moller, the president of the USA
service stations, and Moller said that he had stopped buying
gas from Respondent at two stations because of misdumps.
Later that day, Moller received a call from Simas, and Mol-
ler also told him that he had been having too much trouble
with deliveries. Simas replied that he thought he knew where
the problem was and there was going to be a change.10
Simas and Sanford both testified that on September 3,
they had a conversation in which Simas asked who had been
making the misdumps; Sanford replied that the last one
made Mulkey's third misdump; and Simas told Sanford to
fire Mulkey. Sanford testified that he did not tell Simas that
there had been an error in the dispatch sheet for the last
misdump because he did not think it was important. In his
initial testimony, Simas averred that he couldn't truthfully
say whether Sanford said anything to indicate that the last
misdump was the result of a mistake of the dispatcher or to
indicate that Mulkey had simply followed the instructions
in the dispatch order. However, later in his testimony he
averred that Sanford could not have told him that there was
an error because, if he had known there was a mistake in
the dispatch, he would not have considered the last mis-
dumping to be Mulkey's fault. He pointed out that it was
company policy to carefully investigate prior to discharging
an employee and that if the investigation showed a logical
explanation for a dereliction of duty, the employee would
not be fired. He gave as an illustration the situation where
an employee in Oakland was discharged because of three
accidents and was taken back 2 days later when the investi-
gation showed that two of the accidents were not his fault.
Simas also testified that after this conversation with San-
ford, he looked at Mulkey's file and found that Mulkey had
been hired when he did not have 5 years' experience driving
a gas truck as was required by company policy. Simas ac-
knowledged that this was not the reason for the discharge
because he had decided to fire Mulkey before looking at the
file, but he added that Mulkey would have subsequently
been discharged because of that lack of experience even if
he had known that the third misdump had been the result
of a mistake in the dispatch. Simas' credibility in this regard
is seriously undermined by the testimony of Rascon, who
averred that he did not have any knowledge of a company
policy that required drivers to have 5 years of experience
driving a gas truck before being hired. l Simas' credibility
is further shaken by the credited testimony of Mulkey, who
averred that Rascon admitted to him in July that Simas
knew that Mulkey had been hired without any previous
tanker experience. I do not credit Simas' testimony that
Respondent considered a lack of such experience to be
grounds for discharge. Further, I do not credit the testimony
of Simas and Sanford that Sanford did not mention the
mistake in the dispatch orders. According to Simas, such a
mistake would have exonerated Mulkey from full respon-
10 These findings are based on the credited testimony of Moller.
11 Rascon subsequently testified that 6 months before the trial in this case,
Simas told him that they were having a problem with inexperienced drivers
and that he would like to hire drivers with at least 5 years' experience.
However , that falls far short of firm company policy that would require the
discharge of the drivers who had already been employed
sibility and, if he had known, he would not have discharged
Mulkey at that time. The matter was certainly one of major
significance and Sanford's testimony that he didn't think it
was important enough to mention is simply incredible. I
also do not credit the testimony of Simas and Sanford that
they never discussed Mulkey's union activities. Respondent
had sufficient animus against the Union to commit major
violations of Section 8(a)(1) of the Act and I do not believe
that Sanford, who himself had engaged in unlawful con-
duct, would have refrained from passing on such informa-
tion to his superiors. The knowledge of a supervisor as to
the union activities of an employee can be imputed to a
company. Texas Aluminum Co. v. N.L.RB., 435 F.2d 917
(C.A. 5, 1970), enfg. 181 NLRB 73.
Moller credibly testified that in addition to his USA gas
station tanks being numbered, they are identified by a tag
which shows the proper type of octane that is to be put in
them. If Mulkey had been careful enough, he might have
avoided the misdump in spite of the incorrect dispatch or-
ders. However, Simas, who made the decision to discharge
Mulkey, acknowledged in substance that if he had known
that Mulkey was simply carrying out the dispatch orders, he
would not have been discharged for that misdump.
On September 7, the day after Labor Day, Sanford
asked Mulkey if he knew that he had made a misdumping
at the Baldwin Park station. Muldey replied that he did not.
Sanford showed him the worksheet and Mulkey pointed out
that the original copy had been altered to show a delivery
to tank 4 instead of tank 1. Sanford replied that it looked
as if he were right but it didn't matter because he (Sanford)
was told to fire him.12 Sanford Gave Mulkey the warning
slip for the July 23 misdump together with the warning slip
for the August 19 misdump and discharged him.13
3. Conclusions as to Mulkey's discharge
The General Counsel has established that Mulkey was
considered by Respondent to be a good worker; that Mul-
key was the moving force behind the Union's organizational
efforts; that Respondent obtained knowledge concerning
Mulkey's union sympathies and conversations with other
employees; that Respondent had a virulent animosity to-
ward the Union as expressed in the numerous violations of
Section 8(a)(1) set forth above; that Sanford spoke about
having a reason to fire Mulkey in the context of threats to
close the terminal because of union activity; and that short-
ly after obtaining knowledge of Mulkey's union activity,
Mulkey was discharged. In the light of these findings, an
evaluation must be made of Respondent's contention that
Mulkey was fired solely because of mistakes he had made
as a driver.
Respondent had lost some business because of mis-
12 These findings are based on the credited testimony of Mulkey. Sanford
acknowledged that he knew that there was a mistake in the dispatch prior
to the conversation and that he told Mulkey it didn' t matter because Mulkey
had made deliveries to that station before and he knew where the delivery
should have been made. I do not credit Sanford's version of the conversation
where it conflicts with Mulkey's.
13 Subsequently in an application for unemployment insurance , Mulkey
put down as a reason for discharge "dumped wrong grade of gasoline in
station tanks " His explanation was that he put down the reason given by the
employer for the discharge rather than his version of the reason.
ASHLAND OIL COMPANY 237
dumps . Such misdumpings could be extremely damaging to
Respondent's reputation and Respondent quite properly
took them very seriously. If, as Respondent contends, Mul-
key was discharged because of those misdumps, there would
be no violation of the Act. However, the Respondent's con-
tention in that regard does not bear scrutiny. The misdump
of August 19, which allegedly precipitated the discharge,
was the result of a mistake in a dispatch order that was made
up by the dispatcher and not by Mulkey. Simas acknowl-
edged in substance that if he had known, he would not have
told Sanford to fire Mulkey. As indicated above, I do not
believe that he was ignorant of the facts. His apparent after-
thought that he would have subsequently fired Mulkey be-
cause Mulkey did not have 5 years' tank truck experience
is an unconvincing attempt to explain why he let the dis-
charge stand. He testified that he had taken back an em-
ployee in Oakland when it subsequently turned out that that
employee had not been responsible for accidents attributed
to him. Some explanation was needed as to why Mulkey was
not taken back when it proved that his discharge had been
an error. However, Simas' assertion that a company policy
existed that would require the discharge of Mulkey because
of his lack of experience is unconvincing in the face of
Rascon's testimony that he knew of no such policy,
Mulkey's testimony that Rascon admitted that Simas knew
of the lack of experience as far back as July and the fact that
Mulkey's work was praised by his supervisors to the extent
that he was considered for a promotion. It is further noted
that, even if Simas did consider Mulkey responsible for the
third misdump, there was no company policy that automati-
cally required his discharge as demonstrated by the fact that
Dingee had received four warning letters without being dis-
charged.
The General Counsel has established a prima facie case
that Mulkey was discharged because of his union activity.
Viewing Respondent's defense as a whole, I am convinced
that the reasons advanced by Respondent for the discharge
and failure to reinstate Mulkey are not the real reasons and
are simply pretexts which are intended to disguise the fact
that Mulkey was discharged because of his union activity.
I find that by that discharge and failure to reinstate, Re-
spondent violated Section 8(a)(3) and (1) of the Act.
IV THE OBJECTIONS TO THE ELECTION
The objections to the election are based in large mea-
sure on the same matters set forth in the complaint. They
specifically allege the discharge of Mulkey and threats to
close the terminal . As found above, the Respondent viola-
ted Section 8(a)(3) and (1) by discharging Mulkey because
of his union activity and violated Section 8(a)(1) of the Act
by numerous threats to close the terminal. As the discharge
and many of the threats to close the terminal occurred
between the date the petition was filed and election, they
must be considered in determining whether the election
should be set aside. As the Board said in Dal-Tex Optical
Company, Inc., 137 NLRB 1782, 1786:
Conduct violative of Section 8(a)(1) is, a fortiori con-
duct which interferes with the exercise of a free and
untrammelled choice in an election . This is so because
the test of conduct which may interfere with the "labo-
ratory conditions" for an election is considerably more
restrictive than the test of conduct which amounts to
interference , restraint or coercion which violates Sec-
tion 8(a)(1).
I find that Respondent , by engaging in the conduct
described above , interfered with the election and I shall rec-
ommend that the election be set aside and that a new
election be directed.
V. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and
commerce among the sereral States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
VI. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discharged and refused
to reinstate Douglas L. Mulkey, Jr. in violation of Section
8(a)(3) and (1) of the Act, I shall recommend that Respon-
dent be ordered to offer him reinstatement and make him
whole for any loss of pay resulting from his discharge, by
payment to him of a sum of money equal to the amount he
normally would have earned as wages from the date of his
discharge to the date on which reinstatement is offered, less
net earnings during that period. Such backpay shall be com-
puted on a quarterly basis in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289, and shall include inter-
est at 6 percent as provided in Isis Plumbing & Heating Co.,
138 NLRB 716.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging and refusing to reinstate Douglas L.
Mulkey, Jr., because of his activities on behalf of the Union,
thereby discouraging membership in the Union, Respon-
dent has violated Section 8(a)(3) of the Act.
(4) By the foregoing conduct, by interrogating employ-
ees concerning their union activities, by interrogating an
employee concerning the union activities of other employ-
ees, and by threatening employees that it would reduce
benefits, enforce work rules more stringently, and close the
terminal if the employees selected the Union to represent
them, Respondent interfered with, restrained, and coerced
employees in the exercise of their rights guaranteed to them
by Section 7 of the Act, in violation of Section 8(a)(1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By discharging Mulkey in violation of Section 8(a)(3)
and (1) and by threatening to close the terminal in violation
of Section 8(a)(1) of the Act , Respondent interfered with the
freedom of choice of its employees in their selection of a
bargaining representative in the election of September 13,
1971.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record , and pursuant to Section
10(c) of the Act , I hereby issue the following recommend-
ed:14
ORDER
Respondent, Ashland Oil Company of California, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, refusing to reinstate, or otherwise dis-
criminating against any employee forjoining or supporting
General Truck Drivers, Chauffeurs & Helpers Union Local
692, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other un-
ion.
(b) Interrogating employees concerning their union ac-
tivities or the union activities of other employees.
(c) Threatening employees that it will reduce benefits,
enforce work rules more stringently, or close the terminal if
the employees select a union to represent them.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Douglas L. Mulkey, Jr., immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without preju-
dice to his seniority or other rights and privileges, and make
him whole for his loss of earnings in the manner set forth
in the section of this Decision entitled "The Remedy."
(b) Notify Douglas L. Mulkey, Jr., if he is presently
serving in the Armed Forces of the United States, of his
right to full reinstatement, upon application, after discharge
in accordance with the Selective Service Act and Universal
Military Training and Service Act.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due.
(d) Post at its Long Beach, California, terminal copies
of the attached notice marked "Appendix."15 Copies of the
notice, on forms provided by the Regional Director for
Region 21, after being duly signed by Respondent's author-
ized representative, shall be posted by Respondent imme-
diately 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 post-
ed. Reasonable steps shall be taken by Respondent to insure
that said notice is not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 21, in writ-
ing, within 20 days from the date of receipt of this Decision,
what steps Respondent has taken to comply herewith.16
IT IS FURTHER RECOMMENDED that the election held on
September 13, 1971, in Case No. 21-RC-12310 be set aside,
and that said case be remanded to the Regional Director for
Region 21 to conduct a new election at such time as he
deems the circumstances permit the free choice of a bar-
gaining representative.
14 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Section
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.
15 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
16 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read: "Notify
the Regional Director for Region 21, in writing , within 20 days from the date
of this Order, what steps the 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
Pursuant to the recommended Order of a Trial Exam-
iner of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act,
as amended, we hereby notify you that:
After a trial at which all sides had a chance to give
evidence, a Trial Examiner of the National Labor Relations
Board has found that we violated the National Labor Rela-
tions Act, and has ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization;
To form, join or help unions;
To bargain collectively through a representative of
their own choosing;
To act together for collective bargaining or other
mutual aid or protection;
To refrain from any or all these things except to the
extent that membership in a union may be required
pursuant to a lawful union-security clause.
WE WILL NOT do anything that restrains or coer-
ces employees with respect to these rights. More speci-
fically,
WE WILL NOT discharge, refuse to reinstate, or oth-
erwise discriminate against employees for joining or
supporting General Truck Drivers, Chauffeurs & Help-
ers Union Local 692, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other union.
WE WILL NOT interrogate employees concerning
their union activities or the union activities of other
employees.
WE WILL NOT threaten employees that we will re-
duce benefits, enforce work rules more stringently or
close the terminal if the employees select a union to
represent them.
ASHLAND OIL COMPANY
WE WILL offer full reinstatement to Douglas L.
Mulkey , Jr., with backpay plus 6 percent interest.
WE WILL notify Douglas L. Mulkey , Jr., if he is
presently serving in the Armed Forces of the United
States, of his right to full reinstatement , upon applica-
tion , after discharge in accordance with the Selective
Service Act and Universal Military Training and
Service Act.
ASHLAND OIL COMPANY OF
CALIFORNIA
(Employer)
Dated By
239
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board 's Office , Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014 , Telephone
213-688-5229.