Breckenridge Gasoline Co.

National Labor Relations Board - Board Decisions

Jun 24, 1960

127 N.L.R.B. 1462 (N.L.R.B. 1960)

1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
citation for support the two that appear to depart from precedent
without a stated reason or rationale, and to disregard the long line
of established policy which, as I have already indicated, existed before
and continued in force thereafter.
L. B. Woods, L. J. Reischman , C. D. Dofflemeyer & G. W. Ewing,
d/b/a Breckenridge Gasoline Company and Local 4-245, Oil,
Chemical and Atomic Workers International Union, AFL-
CIO and Oil, Chemical, and Atomic Workers International
Union, AFL-CIO and R . D. Minnich and B . W. Dellinger.
Cases Nos. 16-CA-1018, 16-CA-1089, 16-CA-1167, and 16-CA-
1168. June 24, 1960
DECISION AND ORDER
On September 28, 1959, Trial Examiner Samuel Ross issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report together with a supporting
brief.,
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case,2 and finds merit in certain of the Respondent's exceptions. Ac-
cordingly, the Board adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, only to the extent consistent
herewith.
1. We agree with the Trial Examiner that the wage increase
granted unilaterally by the Respondent close to the date of the elec-
tion in March 1957 constituted a violation of Section 8(a) (1) of
the Act.
The Respondent has requested oral argument This request is hereby denied because
the record and the exceptions and brief adequately present the issues and the positions of
the parties.
2 The Charging Parties have moved that the Board refrain from considering the Re-
spondent' s exceptions and supporting brief as they were not duly served with copies
thereof. The record indicates that representatives of the General Counsel and the
Respondent made appearances at the hearing. No appearances were made for the Charg-
ing Parties . The Respondent timely served the General Counsel with the exceptions and
brief. Subsequent to this motion the Charging Parties were also served wtih copies of
the exceptions and supporting briefs. As the General Counsel was timely served and as
the Respondent 's error was not prejudicial to the Charging Parties, we hereby dismiss
their motions.
127 NLRB No. 176.
BRECKENRIDGE GASOLINE COMPANY 1463
2. We also agree with the Trial Examiner that the interrogation
of two job applicants, M. Rex Jones and Z. D. Reynolds, by G. W.
Ewing, a partner of Respondent, concerning their union interests
constituted a violation of Section 8(a) (1) of the Act.
3. We do not agree with the Trial Examiner that the Respondent
was responsible for the circulation of the decertification petition by
Hardy Wiggins.
During April 1958, Wiggins circulated a petition among employees
seeking to decertify the Union as bargaining representative. The
General Counsel contended that Wiggins was a supervisor and the
Respondent was therefore legally responsible for his conduct; the
Respondent denied that Wiggins had supervisory status. After hear-
ing a good deal of contradictory evidence, the Trial Examiner con-
cluded that Wiggins was a supervisor and that the Respondent was
aware of, and responsible for, his activities in circulating the de-
certification petition. However, in making the finding of respon-
sibility no account was taken of the fact that at the consent election
held on March 6, 1957, Wiggins was permitted to vote without chal-
lenge, thereby justifying the conclusion that he was included in the
bargaining unit for which the Union was certified as statutory
representative.
In a similar situation in the Montgomery Ward case,3 an individual
was permitted to vote without challenge in a consent election. In a
subsequent unfair labor practice proceeding, the Board decided that,
notwithstanding his inclusion in the unit, this individual was a super-
visor. Nevertheless, the Board refused to hold the employer auto-
matically responsible for the antiunion conduct of this supervisor,
explaining (115 NLRB 645 at 647) :
... the Board has generally refused to hold an employer re-
sponsible for the antiunion conduct of a supervisor included in
the unit, in the absence of evidence that the employer encouraged,
authorized, or ratified the supervisor's activities or acted in such
manner as to lead employees reasonably to believe that the
supervisor was acting for and on behalf of management.
There is no affirmative evidence that Wiggins' superiors encouraged,
authorized, or ratified Wiggins' conduct in circulating the decertifica-
tion petition, or that Respondent acted in such manner as to lead
employees reasonably to believe that Wiggins was acting in behalf
of management' Superintendent Liles did testify that he had first
8 Montgomery Ward & Co., 115 NLRB 645 , 646-648, enfd . 242 F. 2d 497 ( C.A. 2), cert.
denied 355 U.S. 829. Accord : Nassau and Suffolk Contractors Association , Inc., and it8
members, 118 NLRB 174 , 181; Geilich Tanning Company , 122 NLRB 1119, 1131-1135, set
aside and remanded on other grounds 276 F . 2d 34 ( C A. 1).
A In circulating the petition Wiggins did indicate to several employees that the Respond-
ent was aware of, and was actually responsible for, the petition . Thus, when asked by
one employee whether the decertification petition was being circulated by Superintendent
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
learned about the petition '2 days before Wiggins brought it to him
and that on this occasion Wiggins told him that "he was getting up
one and asked me when he had finished if I would mail it to the
Company." Liles answered in the affirmative. In view of the Re-
spondent's belief that Wiggins was not a supervisor and the latter's
inclusion in the unit, the failure of Superintendent Liles to take steps
to repudiate Wiggins' conduct cannot be considered evidence of
authorization or ratification.' Accordingly, we do not adopt the Trial
Examiner's finding that Respondent violated Section 8(a) (1) by
Hardy Wiggins' circulation of the decertification petition.
4. We do not agree with the Trial Examiner's finding that Re-
spondent violated Section 8(a) (3) of the Act by failing to reemploy
R. D. Minnich and B. W. Dellinger.
On February 4 and 5, 1957, the Respondent discharged six roust-
abouts, including Minnich and Dellinger, for alleged economic reasons.
On March 7, 1957, the Regional Director dismissed unfair labor prac-
tice charges based on these discharges for lack of evidence. The
original charges alleging refusal to reemploy were filed on August 15,
1957. Subsequent amended charges were filed between April 3 and
November 5, 1958. During the period commencing 6 months before
the filing of the original charge, to November 5, 1958, Minnich and
Dellinger made several applications for employment with Respondent.
They were not hired. The Respondent did hire a number of employees
during this period. It hired Bobby Joe Wiggins on May 20, 1957, as
a roustabout to assist his father, Hardy Wiggins, a long-time and
trusted employee of Respondent. A full year later, it hired Bobby
Joe Flores as a loader and part-time clerical worker; Flores was a
student who the Respondent hoped was of managerial caliber. In
July 1958, it employed a couple of men to do casual labor at a rate of
pay substantially less than that paid to roustabouts. In addition, in
1958.Respondent hired hired a number of engine operators.
The Respondent had no policy or practice of giving preference in
employment to laid-off or discharged employees. It maintained no
list of job applicants from among whom it filled job openings as they
became available. New employees were hired if they were at the
"right place at the right time." Respondent was not required by the
Liles or the Company, Wiggins answered, "Well, it's the Company." To the inquiry of
another employee, Wiggins said that Liles and the Company knew about the decertification
petition. However, in response to the inquiry of a third employee, Wiggins said that a
named partner of Respondent did not know anything about the petition, that Liles knew
about it for a couple of days, and that Wiggins was the "daddy of this petition." These
statements by Wiggins are not admissible to show that Wiggins was acting as agent of
Respondent. It is well settled that a statement by an agent concerning the existence or
extent of his authority is not admissible to prove its existence or extent unless it appears
by other evidence that the making of such statement was within the authority of the
agent, or, as to persons dealing with the agent, within the apparent authority or other
power of the agent, Restatement, Agency 2d (1958), § 285. There is no such evidence
in this case.
5 Restatement, Agency 2d ( 1958 ), § 93, 94.
BRECKENRIDGE GASOLINE COMPANY 1465
Act to prefer Minnich and Dellinger in filling job vacancies; the'onty
requirement was that they not be discriminated against in making
new hirings.6 We can perceive no evidence of discrimination in the
Respondent's preferring the son of an old and trusted employee who
was immediately available, to individuals who had been laid off several
months previously. Nor can we perceive such discrimination in the
hiring more than a year after the layoffs of a student who it was hoped
could be promoted to a managerial position, or of a couple of casual
laborers, or of several engine operators, although Minnich was capable
of filling the latter position. The evidence of what happened within
the period beginning 6 months before the filing of the original charge
in this case, which excludes the February 1957 discharge of the roust-
abouts, is not sufficient standing alone to support a finding of dis-
crimination. Although conduct which occurred prior to the statutory
6-month period may be utilized as background to evaluate subsequent
conduct, Section 10(b) precludes the Board from making a "finding
of violation which- is inescapably grounded on events predating the
limitations period." I It is obvious that the Trial Examiner gave
controlling weight to the February 1957 discharges of the roustabouts
which he found to have been discriminatorily motivated, but could
not be the subject of an unfair labor practice complaint because of
Section 10(b). Accordingly, we do not adopt the Trial Examiner's
finding that the Respondent discriminated against Minnich and
Dellinger in refusing them reemployment.
5. We do not adopt the Trial Examiner's finding that the Re-
spondent violated Section 8(a) (1) by granting a wage increase to
employees in November 1958.
The Union was certified as the collective-bargaining representative
of the Respondent's employees on March 13, 1957. The parties bar-
gained collectively but were unable to reach an agreement. The last
bargaining conference was held in May 1958. The General Counsel
has not contended that collective bargaining during this period was
unlawful. On November 30, 1958, 8 months after the expiration of the
certification year and 6 months after the last unsuccessful bargaining
conference, the Respondent granted a wage increase to employees with-
out consulting the Union. The General Counsel contends that by
-unilaterally granting this wage increase, the Respondent violated
See Economy Stores , Incorporated, 120 NLRB 1 at 7.
4 Local Lodge No. 1424, etc. et at. (Bryan Manufacturing Company ) v. N.L.R B., 362
U.S. 411. Accord : News Printing Co., lice, 116 NLRB 210. Compare : Paramount Cap
Manufacturing Company, 119 NLRB 785 (Chairman Leedom and Member Rodgers dis-
senting ), enfd. 260 F . 2d 109, 113 (C.A. 8), where the Board considered evidence adduced
at a prior representation proceeding outside the 6-month statutory period as background
"to explain ambiguous and equivocal conduct, including supplying the real reason where
an untruthful reason is given for conduct within the 6-month period." In the present
case, unlike Paramount, the Respondent's explanation for not rehiring Minnich and
Dellinger was not incredible and therefore did not require resort to evidence outside the
6-month period in order to obtain the alleged truthful explanation.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a) (1) of the Act; no contention is made that this conduct
also violated Section 8(a) (5). The Respondent contends that the
granting of the wage increase was not unlawful because it had a
good-faith doubt that the Union still represented a majority. The
Trial Examiner rejected this defense relying in large part on the un-
fair labor practices which he found had been committed prior to the
granting of the wage increase, including specifically the circulation
of the decertification petition and the refusal to reemploy Minnich
and Dellinger. However, we have reversed the latter two findings
adopting only the Trial Examiner's findings that the Respondent
violated Section 8(a) (1) by granting a wage increase in March 1957
and interrogating two employees on March 20, 1957. Both these
unfair labor practices occurred approximately 20 months before the
November 30, 1958, wage increase alleged to have been unlawful. In
view of the absence of unfair labor practices for a long period pre-
ceding the granting of the November 30, 1958, wage increase, the
expiration of the certification year, the termination of negotiations
without any attempt to resume them for a considerable period of time,
and the submission to the Respondent of the decertification petition
signed by more than a majority of employees, we credit the Respond-
ent's explanation that when it adopted the November 30 wage increase
plan it honestly doubted that the Union was still the statutory repre-
sentative of the employees involved.' The General Counsel offered
no evidence that the Union did in fact at this time represent a majority.
Accordingly, we find that the Respondent did not violate Section
8(a) (1) by unilaterally granting a wage increase to its employees on
November 30,1958.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the Natio-tal Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Breckenridge
Gasoline Company, Breckenridge, Texas, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from:
(a) Interrogating employees concerning their union membership,
sentiments, and desires, in a manner constituting interference, re-
straint, or coercion in violation of Section 8(a) (1) of the Act.
(b) Unilaterally granting wage increases in violation of Section
8(a) (1) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
8 Stoner Rubber Company, Inc., 123 NLRB 1440.
BRECKENRIDGE GASOLINE COMPANY 1467
(a) Post at its plant in Atlanta, Texas, copies of the notice at-
tached hereto marked "Appendix." 9 Copies of said notice, to be
furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by Respondent's representative, be posted by
Respondent immediately upon the receipt thereof and maintained by
it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, except as to the violations found herein.
MEMBERS JENKINS and FANNING, concurring in part and dissenting
in part :
We join our colleagues in adopting the Trial Examiner's finding
that Respondent violated Section 8(a) (1) of the Act by its unilateral
wage increase early in 1957 and by its interrogation of job applicants
regarding the Union. However, we would also adopt the Trial Ex-
aminer's findings that Respondent further violated the Act by Hardy
Wiggins' conduct in soliciting signatures to the antiunion petition, by
Respondent's failure to reemploy employees Minnich and Dellinger,
and by its unilateral wage increase in November 1958; and we accord-
ingly dissent from our colleagues' reversal of those findings.
1. The Trial Examiner found that Hardy Wiggins was a super-
visor under the Act, a finding which we adopt, as apparently do our
colleagues. In April 1958, Wiggins solicited signatures to a petition
to oust the Union. As is detailed in the Intermediate Report, and
mentioned in the main opinion, Wiggins, in circulating the petition,
indicated to several employees that the Respondent was aware of, and
was actually responsible for, the petition. Wiggins advised Superin-
tendent Liles of his petition and asked Liles whether he would mail it
to the home office when he, Wiggins, was "finished." Liles promised
he would do that. After obtaining the signatures of 15 of 17 employ-
ees, Wiggins presented the petition to Superintendent Liles for mail-
ing pursuant to their understanding. Liles examined the petition,
noted the 15 signatures, and observed that employees Brown and
O. S. Wiggins had not signed.
Had Wiggins not voted in the representation election in March
1957, Respondent's responsibility for his conduct here would be indis-
putable. That he was improperly permitted to vote in that election
9 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not, in our opinion, warrant any different conclusion in the cir-
cumstances of this case. The reason for the Board's special rule in
Montgomery Ward & Co., described in the main opinion, which gov-
erns the case of the supervisor who engages in antiunion conduct but
who has been included in the bargaining unit, is that the employees
regard such a supervisor as one of themselves and "Statements made
by such a supervisor are not considered to be the representations of
management, but of a fellow employee." 10 As the facts amply demon-
strate, however, this case does not call for the application of Mont-
gomery Ward or for any departure from the general principles of
respondent superior. Wiggins was a supervisor and hence an agent
of Respondent for whose antiunion conduct Respondent would nor-
mally be responsible.ll He did not assume any rank-and-file pose or
indicate he was acting in his individual capacity rather than in his
representative capacity when soliciting the signatures. To the con-
trary, he indicated to employees that it was the Respondent who was
responsible for the petition. Under all the circumstances, including
Respondent's hostility to the Union, it was plainly reasonable for em-
ployees to view Supervisor Wiggins who was purporting to act for
management as in fact being on a management mission, as indeed they
did.12 Clearly, therefore, no justification exists for modifying the
common-law rules of agency in this case. But even if Respondent's
liability is to be tested by Montgomery Ward criteria, we would find
such requirements satisfied by the evidence, for Wiggins' antiunion
activity was known to Superintendent Liles who sanctioned it and
agreed to assist in accomplishing its purpose. Our colleagues think
otherwise because of "Respondent's belief that Wiggins was not a
supervisor." Even assuming such a bona fide belief for present pur-
poses, we fail to see why that fact should absolve Respondent of re-
sponsibility for antiunion conduct which it sanctioned and encour-
aged. For these reasons, we would find that Respondent violated
Section 8 (a) (1) because of Supervisor Wiggins' circulation of the
antiunion petition.
2. Employees Minnich and Dellinger were discharged early in 1957.
Subsequently, job openings developed for which these complainants
were qualified but neither was hired although both had sought re-
employment. The Trial Examiner has found that Respondent's
refusal to reemploy Minnich and Dellinger was motivated by discrimi-
natory considerations. Our colleagues find that the events within the
10(b) period in the case are insufficient to support the Trial Exam-
iner's ultimate conclusion and accordingly conclude that "the Trial
io Montgomery Ward & Co., supra, at 647.
n Nassau and Suffolk Contractors' Association, Inc., supra, at 180.
12 Employee Carpenter testified , for example, that he signed the petition because he felt
."we could have been run 'off if we didn't sign." Significantly, employees who signed the
petition continued to be dues-paying members df the Union.
BRECKENRIDGE GASOLINE COMPANY 1469
Examiner gave controlling weight to the February 1957 discharges
of the roustabouts [including Minnich and Dellinger] which he found
to have been discriminatorily motivated, but could not be the subject
of an unfair labor practice complaint because of Section 10 (b)."
The various reasons advanced by Respondent for preferring the
employees it hired rather than Minnich and Dellinger were discredited
by the Trial Examiner for reasons fully explained in the Intermediate
Report. Our colleagues have not successfully impugned the validity
of the Trial Examiner's findings in this connection. They attempt to
do so by suggesting that it was entirely reasonable for Respondent
to prefer Bobby Joe Wiggins who was "immediately available" for
employment. But while Superintendent Liles testified that he "didn't
know a good reason" for not hiring Dellinger except that "Bobby
Joe Wiggins was handy," there is no showing, and it in no way ap-
pears, that Dellinger and Minnich were not also "handy." The main
opinion also professes to understand Respondent's preference for
Bobby Joe Flores "who it was hoped, could be promoted to a man-
agerial position." However, it does not appear that Minnich or
Dellinger could not also qualify for a managerial job in the future.
As appears in the Intermediate Report, this was but one of several
unconvincing reasons assigned for the preference given Flores.
Having rejected, for sufficient reason, the explanation offered by
Respondent for preferring new, and in some instances, inexperienced
employees to Minnich and Dellinger, the Trial Examiner properly
turned to other evidence in the record for the real explanation for
Respondent's behavior. Thus, he considered such matters as (1) the
fact of Respondent's knowledge of the union membership of Minnich
and Dellinger; (2) his finding that their layoff was for discriminatory
reasons; (3) the unilateral wage increases granted by Respondent,13
and (4) the unlawful circulation of the decertification petition. On
the basis of these factors, together with the unconvincing explanation
given by Respondent for not reemploying Minnich and Dellinger, he
concluded that Respondent's failure to rehire the complainants was
motivated by discriminatory considerations and hence violative of
Section 8 (a) (3). In these circumstances, we are compelled to disagree
with our colleagues' charge that the Trial Examiner has given con-
trolling weight to his finding that Minnich and Dellinger were dis-
criminatorily discharged in the first instance. Upon the entire record,
we believe that the Section 8 (a) (3) violation found by the Trial
Examiner in the cases of Minnich and Dellinger should be adopted.
3. In November 1958, Respondent again unilaterally raised wages
and the Trial Examiner found that it thereby violated Section 8 (a) (1)
of the Act. Our colleagues reject this finding on the ground that
13 As appears below, we agree with the Trial Examiner that the Respondent ' s unilateral
wage increase in November 1958 also violated the Act.
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent honestly doubted that the Union, which was certified as
bargaining representative of Respondent's employees in March 1957,
was still the majority representative of the employees at the time
involved, and they even suggest that the Union may not in fact have
then been the statutory representative of the employees.
We would adopt the 8 (a) (1) finding of the Trial Examiner. Con-
sidering the unilateral nature of the action in question, together with
the background of unfair labor practices we attribute to Respondent,
we would not permit Respondent now to lay claim to a good-faith
doubt of the Union's majority status when, for the second time, it
acted unilaterally in the matter of wages.14 If the Union suffered a
loss of majority by that time, a fact not disclosed by the record, the
Respondent itself must be deemed responsible therefor.
14 This conclusion is justified under any of the opinions expressed in Stoner Rubber
Company, Inc., supra.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their union
membership or activities in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) of the Act.
WE WILL NOT unilaterally grant wage increases in violation of
the National Labor Relations Act.
All our employees are free to become, to remain, or to refrain from
becoming or remaining members of Oil, Chemical and Atomic Work-
ers International Union, AFL-CIO, or its Local 4-245, or any other
labor organization.
BRECKENRIDGE GASOLINE COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Local 8-245, Oil , Chemical and Atomic Workers Inter•
national Union , AFL-CIO (Case No. 16-CA-1018 ), ' Oil, Chemical and Atomic
Workers International Union , AFL-CIO (Case No. 16-CA-1089), R. D. Minnich,
an individual (Case No. 16-CA-1167 ), and B . W. Dellinger , an individual (Case
1 At the opening of the hearing , an amendment of the complaint was granted by consent
changing the numerical designation of the Local Union from 8-245 to 4-245
BRECKENRIDGE GASOLINE COMPANY 1471
No. 16-CA-1168), the General Counsel of the National Labor Relations Board,
by the Regional Director for the Sixteenth Region, issued a complaint on November
18, 1958, alleging that L. B. Woods, L. J. Reischman, C. D. Doffiemeyer & G. W.
Ewing, d/b/a Breckenridge Gasoline Company, herein called the Respondent or the
Company, had engaged in and were engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as
amended (61 Stat. 136), herein called the Act. More specifically, the complaint
alleges in substance that the Respondent interrogated employees and prospective
employees regarding their membership in labor organizations; threatened to shut
down or sell out and to contract out production and maintenance work to keep out
the Union; initiated, condoned, and supported the circulation and execution by its
employees of a decertification petition; unilaterally granted wage increases to its
employees; and refused to reinstate or reemploy two employees and discharged one
employee because of their membership in and adherence to the Union .2 Respondent
filed an answer denying the material allegations of the complaint.
Pursuant to due notice, a hearing was held before me in Linden, Texas, on
January 15, 16, and 17, 1959. All parties were represented at the hearing and were
afforded full opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence pertinent to the issues. Oral argument was waived by the
parties. On March 2, 1959, briefs were submitted by the General Counsel and
Respondent, which I have fully considered.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Respondent, whose principal office and place of business is located at
Breckenridge, Texas, is engaged in the operation of four plants at which gasoline,
propane, butane, and related products are manufactured. At its Lodi plant, located
near Atlanta, Texas, which is the only plant involved in this proceeding, the Respond-
ent, during the past 12 months, sold and shipped products consisting of gasoline,
propane, and butane, valued at in excess of $50,000, to points and places outside the
State of Texas. On the foregoing, I find that the Respondent is engaged in inter-
state commerce within the meaning of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
Oil, Chemical and Atomic Workers International Union, AFL-CIO, and Local
4-245, Oil , Chemical and Atomic Workers International Union, AFL-CIO, herein
collectively called the Union , are labor organizations within the meaning of Section
2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. The Union's organizing campaign
The Union commenced its campaign to organize Respondent's Lodi plant early in
January 1957 and, as subsequent events disclosed , succeeded in signing up as
members all of the Respondent 's production and maintenance employees. On
January 25, 1957, the Union filed a petition with the Board for certification as the
representative of said employees. The name of the Respondent was erroneously
stated in the petition as Breckenridge Oil & Gas Company instead of Breckenridge
Gasoline Company, the correct designation .3
B. The discharge by Respondent of its roustabouts
On January 28, 1957, the Regional Director addressed a letter to the Brecken-
ridge Gas & Oil Company advising it of the filing of said petition. Thereafter, on
February 4 and 5, 1957, the Respondent, without prior notice, laid off or discharged
all of its six roustabouts, purportedly because it had decided to utilize contract labor
to perform the services theretofore done by its roustabout employees. The reason
for this change, according to the testimony of Plant Superintendent Liles and
partner C. D. Doffiemeyer was that the contract labor would be more economical.
The Respondent professed a lack of knowledge at the time of the layoff of the
2The allegations charging the unilateral granting of wage increases to employees were
added to the complaint at the opening of the hearing on motion by the General Counsel.
General Counsel's Exhibit No. 5.
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union membership of its employees. Thus, on February 8, 1957, J. G. Harrell, the
Respondent's lawyer, wrote to the Regional Office,4 stating, inter- aka:
The communication dated January 28, addressed to Breckenridge Oil & Gas
Company, Breckenridge, Texas, and signed by Mr. Edwin A. Elliott was not
delivered to Breckenridge Gasoline Company. Our company has never gone
under the name of Breckenridge Oil & Gas Company and does not care to be
identified with that name. The first information that Mi. Ewing or any other
member of Breckenridge Gasoline Company had that their employees were
members of a union was obtained from you in your telephone conversation on
February 5. Since Case No. 16-RC-2048 is filed against Breckenridge Oil &
Gas Company which is no longer in existence as far as I know, I suggest that
such case be dismissed and another one filed against Breckenridge Gasoline
Company.
Obviously, if the aforesaid letter addressed to Breckenridge Oil & Gas Company
has not been delivered to the Respondent, its counsel would not have known either
the date of the letter nor the name of its signer. I therefore place no credence in the
self-serving statement contained in the letter that the first knowledge of the Re-
spondent that its Lodi plant employees were members of the Union was on February
5, 1957. Significantly, Respondent's partner, Dofflemeyer, testified that he learned
about the Union's organizing effort as a result of a letter he received sometime in
January 1957 and, although not sure, he believed it to be the January 28 letter
referred to in Harrell's letter to the Regional Office. Accordingly, I find that, not-
withstanding its denial, the Respondent, on about January 30 or 31, 1957, when it
received the Regional Office's letter of January 28, did acquire knowledge of the
filing of the petition for certification by the Union.5 Five of the six roustabouts were
advised of their termination by Superintendent Liles on Monday, February 4, 1957.
According to the credited testimony of Billy Wayne Dellinger, one of the roust-
abouts, Liles told them he was satisfied with their work but the Company had
instructed him to lay them off and contract out the work. The sixth roustabout who
was laid off, Ray Albert, had not worked on February 4 and was advised of his
termination on the following day. According to the credited testimony of Ray
Albert, he asked Superintendent Liles why he was being laid off and Liles told him
that Respondent was spending too much money and had decided to dispense with
the roustabout crew and contract out the work. Liles further told Albert that he did
not know anything about the layoff until Sunday night, February 3. Albert then
said that he did not believe the reason assigned for the layoff and that he believed
the layoff was on "account of the Union." Liles asked, "What Union?" Albert
replied, "AFL and CIO." Liles then said, "That's news to me." Liles then asked
Albert if he belonged to the Union and on receiving an affirmative response, he
asked the same question in succession of Respondent's employees Paul Blizzard,
J. W. (Dub) Watson, and Chester Frances, all of whom were present during the
conversation between Liles and Albert. In turn each of the three confirmed that
they were members of the Union and Frances added that the men in the plant were
"100 percent" Union. Superintendent Liles admitted the foregoing conversation
and interrogation, and testified further that he then said, "That doesn't make any
difference about this layoff, as far as I'm concerned. I don't have. any proof that
you are Union." Liles then testified "they showed me, some of them handed me
their cards." 6
Liles testified that he first learned about the union membership of Respondent's
employees on February 5 when he laid off Albert as hereinabove related. However,
as hereinabove found, the Respondent acquired knowledge of the certification petition
on January 30 or 31, and, by the self-serving letter of its counsel, attempted to
conceal the true date of acquisition of such knowledge. Immediately after it learned
of the Union's petition for certification, Respondent instructed Liles to lay off the
roustabouts., In this context, it is immaterial whether or not Liles also knew of the
union membership of the Lodi plant employees?
' General Counsel's Exhibit No 7.
5 The petition was subsequently amended on February 13, 1957 , inter alia, to correct
the name of the Company.
9 Subsequently Liles testified that only Ray Albert showed him his union card.
"In addition to giving contradictory testimony in several instances (see, for example,
footnotes 10, 11, 38, 46), Liles' general demeanor as a witness gave me the impression that
he was prompt and positive in testifying to facts advancing the Company's interest but
reluctant to testify to facts adverse thereto. I therefore regard Liles' testimony as
generally unreliable.
BRECKENRIDGE GASOLINE COMPANY 1473
Although the February 4, 1957, layoff was not alleged in the complaint as an
unfair labor practice,8 Respondent, as part of its direct case, nevertheless adduced
testimony for the purpose of establishing that the change from the use of roust-
abouts to contract labor was motivated by economic considerations. I am not
persuaded that the motivation for the layoff of the roustabouts was to cut down
expenses as claimed. According to partner Dofflemeyer, at the time of the layoff,
Respondent was expanding its Lodi plant facilities to get "more product in the
plant." Superintendent Liles testified that Respondent was in the process of in-
stalling three additional engines for the purpose of processing additional gas supply
available to it. This installation work was being performed by the roustabouts
before their layoff and the work had not been completed. In addition, work in
the field was still necessary to tie in the new gas supplies to the plant. This type
of work had also been performed by the roustabouts. Notwithstanding the current
need for the additional engines 9 and for the tie-in fieldwork, simultaneously with
the layoff of the roustabouts, Respondent suspended all work on engine installation
and tying-in for a period of 30 days and then the work was assigned to labor
supplied by an outside contractor. No reason was given by Respondent why, in
view of the current need for plant expansion, no further work was done thereon
for 30 days after the layoff. Liles testified that prior to the layoff "we had already
talked about contract labor and had a contractor that we had talked to and he had
agreed to furnish the men we needed." 10 In respect to the comparative cost of-
contract labor as opposed to the use of its own employees, the record disclosed that
although the Respondent was paying its ,roustabouts $1.42 per hour and possessed'
the tools required for their work and a truck to transport them to the field when
necessary, it nevertheless contracted to pay $2 per hour to Simmons for labor and
an additional $2 per hour for tools and transportation. Notwithstanding the ap-
parently higher cost of contract labor, the Respondent still maintained it was.
cheaper because Simmons had to pay for compensation insurance and taxes, and
in addition, furnished supervision. No testimony was adduced by Respondent to
show its costs for compensation insurance and taxes. In respect to supervision, when,
roustabouts were employed by it, Respondent had no additional cost for their
supervision since, when working in the plant, these employees were supervised by
Superintendent Liles and Chief Engineer Walker, and, working in the field, they
allegedly worked without supervision other than that supplied by a leadman. An-
other reason asserted by Superintendent Liles why it was cheaper to use contract
labor was that Respondent could use precisely the number of men it needed each
day, 15 or 20 one day and 3 or 4 the next. This reason, on examination, appears
also to lack merit. At the time of the layoff, in addition to the six roustabouts,
Respondent was also utilizing contract labor. When asked why additional labor
to augment the regular roustabout force could not, if needed, be secured from the,
same or another labor contractor, Liles' reply was that sometimes the entire regular
force was not needed.ii Even assuming this were true, there was no reason why
only two or three of the regular labor force could not have been laid off and the
rest retained or why such employees could not have been laid off only on such
days that all six were not required. In view of the fact that at the time of the
layoff contract labor was already being utilized by Respondent to augment its
8The complaint (paragraph 6) as written alleged the February 4, 1957, layoff of two of
the roustabouts (R. D. Minnmh and B. W. Dellinger ) as a violation of Section 8(a) (3) of the•
Act Respondent's counsel moved at the opening of the hearing to strike from paragraph 6
the names of these two alleged discriminatees on the ground that the date of filing of the
charges of Minnich and Dellinger (September 8 and 12, 1958), has gone beyond the
6-month limitation for consideration permitted by Section 10(b) of the Act for considera-
tion of unfair labor practices Upon the representation of the General Counsel that the
allegation in paragraph 6 was merely informational and that he was relying only on the
refusal to reinstate or reemploy Minnich and Dellinger, I granted Respondent's motion
0 Five more were installed in 1958.
10 The contractor hired by Respondent was Roy Simmons Construction Company, herein
called Simmons Liles subsequently testified that he did not start talking to Simmons
about contract labor until the latter part of February 1957, thus contradicting his above-
quoted testimony that said discussion occurred prior to the layoff.
11 At first Liles was not certain that, during the time the engines were being installed',
he ever used less than six men Subsequently, he testified he was sure there were such
occasions. On further questioning, he again modified this to saying he was "fairly sure "
In view of these conflicting responses, I do not credit Liles' testimony that at the time df
the layoff Respondent did not regularly require the services of at least the six roustabout&
employed by it.
560940-61-vol. 12 7-9 4
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regular roustabouts , I am persuaded and find that generally, Respondent required
more than its regular complement of roustabout employees for the work which
roustabouts normally performed . Partner Dofflemeyer testified that by utilizing
contract labor, Respondent would not have to carry a big payroll and that his
accountants had gone over Respondent 's bills and advised him that contract labor
was 10 to 15 percent cheaper.12 Dofemeyer also testified that he had been told by
officials of Phillips Petroleum Company and by Simmons that contract labor was
being used by other companies . However, the fact that other companies might find
it expedient or even more economical to utilize contract labor does not and cannot
establish that it was also more economical for Respondent . Indeed , Superintendent
Liles admitted that the labor contractor had all the costs attendant to the use of
labor which the Company had, and, in addition , had to make a profit on supplying
the labor.
On the entire record, including the knowledge by Respondent of the Union's
petition for certification , Respondent 's attempt to conceal or postdate that knowl-
edge to a date after the layoff, the expansion program on which Respondent was
engaged at the time of the layoff, Respondent 's use of contract labor in addition
to its roustabouts at the time of the layoff , Respondent 's failure to furnish any
statistics or credible testimony to support its contentions that contract labor was more
economical or otherwise necessary , the availability of additional contract labor to
augment its roustabout force and of temporary layoff procedure if work was not
sufficient for all the roustabout crew, and the hasty timing of the layoff immediately
after knowledge of the Union 's interest in its employees was discovered and without
notice to the employees involved , I am persuaded and find that the layoff of the
six roustabouts was utilized by Respondent for the purpose of discouraging the
remainder of its employees from continued adherence to the Union and to defeat the
Union's effort to acquire representative status for Respondent 's Lodi plant
employees.13
C. The wage increase of April 1957, without notification to or
consultation with the Union
On March 6 , 1957 , the Board conducted an election among the remaining em-
ployees of Respondent and the vote , notwithstanding the aforedescribed layoff, was
10 to 1 in favor of the Union. On March 13, 1957, the Union was certified by the
Board as the representative of Respondent 's production and maintenance employees
at the Lodi plant.
In the spring of 1957, Respondent granted a wage increase to its Lodi plant em-
ployees. Employee Johnny Leonard Wiggins testified that the wage increase was
given in the spring of 1957 after the Board election.14 Wiggins also testified without
contradiction that the wage increase was the largest ever given by Respondent to the
Lodi plant employees and that he was raised from $1.48 to $1 811/2 per hour. Em-
ployee L. W. Carpenter , a member of the Union's negotiating committee , testified
that the wage increase was granted in April 1957 , after there had been bargaining
sessions between Respondent and the Union . 15 Carpenter further testified that the
wage increase was 6 percent , that there had been no discussion of the raise with the
Union and no prior notification thereof , and that his first knowledge of the raise
was when he received the extra compensation in his paycheck . There was no testi-
mony adduced by Respondent as to the precise amount of this wage increase. How-
ever, since General Counsel 's Exhibit No. 2, which is a list of employees hired by
Respondent after the layoff, shows that the rate for roustabouts after this raise was
17 The accountant was not called to testify and no figures were provided upon which
either conclusion was based . I therefore can place no reliance on these hearsay conclusions.
13 Since, as aforestated , the alleged economic motivation for the layoff was brought into
the case by Respondent , apparently in an effort to justify the layoff , and the issue was
fully litigated even though the layoff was not alleged in the complaint and is barred from
consideration as an unfair labor practice by Section 10(b) of the Act, I shall consider this
conduct of Respondent only as background evidence insofar as it may shed light on the
motivation for Respondent's conduct which is charged as unfair labor practices herein.
Paramount Cap Manufacturing Company, 119 NLRB 785, enfd 260 F. 2d 109 (C.A 8).
14 Wiggins' memory as to dates was hazy he erroneously testified that the election
occurred in April 1957 He did not recollect the month of the wage increase but thought
it was 'May or June "
11 Respondent's Counsel Price, who was the Company's negotiator, testified that the first
bargaining session was in March or April 19 5 7 There was no testimony that any bargain-
ing sessions occurred before the Union was certified
BRECKENRIDGE GASOLINE COMPANY 1475
$1.562 per hour and the record shows that the former rate was $ 1.42 per hour, I
infer therefrom and find that the amount of the wage increase was 10 percent.
Partner Dofflemeyer testified that the increase in question was granted on March 1,
1957, the date on which Respondent's books were closed. He further testified that
the raise had been discussed since the latter part of 1956,16 and they were waiting
until the books were closed "by March 1st" to see whether they were in finanical
condition to put the raise in effect. Dofflemeyer further testified that the increase
was given shortly after Respondent had sent a letter to all its plants to cut down
expenses.17 When asked by Respondent's Counsel to explain the obvious incon-
sistency inherent in the letter to cut down expenses, the layoff of roustabouts and
the change to contract labor allegedly for the same reason, and the granting of this
uncontradictedly largest raise ever given by Respondent to its Lodi employees,
Dofflemeyer said, "We just felt we were operating not too well and we wanted to
get things back down to get a dollar's worth for a dollar to see if we could make the
raise, and we did make the raise but we didn't know at the time we could and we
closed our books, and we did." I am not persuaded by this attempted explanation.
Dof lemeyer also testified that prior to this wage increase, Respondent had given
raises to employees in June 1956, and before that in 1954, 1951, and 1950. Doffle-
meyer could not remember the amount of any of these raises.
The foregoing testimony presents a conflict only as to whether the wage increase
was granted just before or shortly after the Board election. Although available to
it, the Company did not produce any books or records which could have definitively
shown the correct date. Under these circumstances , I am inclined to accept and
credit the testimony of employee Johnny Leonard Wiggins, who appeared to be a
disinterested and truthful witness, and of employee L. W. Carpenter whose testimony
corroborated Wiggins, which, although indefinite as to date, was definite that the
granting of the raise was after the Board election.
Respondent contends that the granting of this wage increase to its Lodi plant
employees does not establish a violation of the Act because the record does not
establish that Respondent failed to notify or consult with the Union prior to the
granting of the wage increase . I find no merit in this contention . As aforestated,
employee L. W. Carpenter testified that he was a member of the Union's negotiating
committee, that he had participated in the negotiations with the Company, that the
wage increase in question was granted after bargaining had commenced between
Respondent and the Union, and that there was no notification or discussion with the
Union prior to the granting of said raise. Respondent's cross-examination of Car-
penter neither sought to elicit nor elicited any testimony to show that Carpenter,
either by reason of lack of knowledge or nonattendance at all the negotiating sessions,
was not qualified to testify regarding lack of notice or consultation with the Union
before the wage increase was instituted. Moreover, although both partner Doffle-
meyer and Company Counsel Price, the Company's negotiator, testified at the
hearing in this case, they did not testify that the Union was either consulted or
notified in respect to this wage increase. Accordingly , I find , on the uncontradicted
testimony of Carpenter, that the Union was not notified or consulted prior to the
wage increase and that the contention of Respondent that the proof does not establish
the absence of notice and consultation is patently without merit.
The Board has frequently held, with court approval, that the granting of a unilateral
wage increase , without notice to or consultation with the Union which is the em-
ployees' representative, constitutes a refusal to bargain in violation of Section 8(a) (5)
of the Act.18 Shoreline Enterprises of America, Inc., 117 NLRB 1619, 1620. More-
over, such conduct is held by the Board to be also -a violation of Section 8(a)(1)
of the Act, "the rationale therefor being that an employer's refusal to bargain with
the representative of his employees necessarily discourages and otherwise impedes
the employees in their effort to bargain through their representative ." Tennessee
Coach Company, 115 NLRB 677, 679. See also Minute Maid Corporation, 124
NLRB 355, footnote 15, in which the Board held that the unilateral granting of
bonuses to employees without notice to or consultation with the employees' repre-
sentative was an independent violation of Section 8(a) (1) of the Act. Accordingly,
I find and conclude that Respondent , by the unilateral granting of a wage increase
to its employees in April 1957, without notice to or consultation with the Union,
to Presumably among Respondent's partners.
17 Dofliemeyer did not produce the letter and could not remember its date
1s There is no charge in this case of a refusal to bargain in violation of Section 8(a) (5)
of the Act The charge in Case No. 16-CA-1089 originally contained such an allegation,
but this was deleted from the charge on November 5, 1958, by the filing of a second
amendement thereto.
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interfered with, restrained, and coerced its employees in the exercise of their rights
under the Act in violation of Section 8 (a) (1) of the Act.
Moreover, even assuming that the wage increase was given on March 1, 1957, as
Dofflemeyer testified, my conclusion that Respondent thereby violated Section 8(a) (1)
of the Act would be no different. On March 1, 1957, there was pending a petition
for certification filed by the Umon and the Respondent on February 25, 1957, had
consented to an election and therefore knew that the election would be held shortly.
Its Superintendent Liles had also been told that the men were 100 percent union.
There was no history of regular periodic increases to the employees in the Lodi plant,
and, according to Dofflemeyer, a wage increase had been given to the employees in
June 1956, only 9 months earlier. Moreover, there was no testimony that the grant-
ing of a wage increase was required either to prevent the loss of employees to com-
petitors who were paying more or for any other reason. Under these circumstances,
the conclusion is inescapable that the hasty granting of the wage increase, just before
the election and on the very day the Company's books were allegedly closed, was for
the purpose of demonstrating to the employees that they did not need a union tc
secure benefits from the Company. Accordingly, on the record herein, even if the
March 1 date of the wage increase were accepted by me, Respondent's conduct in
granting the wage increase violated Section 8(a) (1) of the Act. Allure Shoe Corpo-
ration, 123 NLRB 717; Habib Marcus, d/b/a Marcus Bros., 123 NLRB 33; Coscoa
Products Company, 123 NLRB 766; Hoffman-Taff, Inc., 123 NLRB 1462; National
Shirt Shops of Delaware, Inc., et al., 123 NLRB 1213; cf. Jud L. Sedwick, d/b/a
Armstrong County Line Construction, 124 NLRB 132. Moreover, this conclusion
would also result even if Respondent were not motivated by a desire to cause the
employees to reject the Union, since the test to determine whether a violation of
Section 8(a) (1) of the Act has been committed "is whether the employer engaged
in conduct which, it may reasonably be said, tends to interfere with the free exercise
of employee rights under the Act." American Freightways Co., Inc., 124 NLRB 146
Applying this test to the alleged March 1 date of the wage increase, I find that the
granting thereof under the circumstances hereinabove related, just before the Board's
election to determine whether the Union was the representative of the Company's
employees, necessarily tended to interfere with the free exercise of employee rights
under the Act, regardless of Respondent's motivation, and thereby Respondent vio-
lated Section 8(a)(1) of the Act.
D. The decertification petition
1. The alleged supervisory status of Hardy Wiggins
After the certification of the Union, Respondent and the Union started the nego-
tiations of a labor contract. The first bargaining session was held in March or April
1957. The last was held in May 1958. No agreement was reached.19
In April 1958, Hardy Wiggins, whom the General Counsel alleges to be a company
supervisor, solicited Respondent's employees to sign a petition to get rid of the
Union. According to the credited testimony of Billy Bob Belote, James R. Martin,
and E. A. Haney, Hardy Wiggins directed the work in the field of a crew of four
or five men.20 Work in the field consists of general pipework , digging drip holes,
and laying drips and lines to the separators. According to Superintendent Liles,
the fieldwork was performed in the area embraced within a 20-mile radius from the
plant. Belote, Martin, and Haney testified that Hardy Wiggins drove the crew to
the field, told them what tools to load into the truck when they left the plant, what
tools to unload when they arrived at the worksite in the field, what to do in the field,
and when and how to do it. Belote further testified that Wiggins kept their time
and told them when to stop work, told them when work was not properly done, and
saw to it that it was done correctly. Martin testified that when there was more
than one job to do in the field, Hardy Wiggins distributed the men about and
assigned them to their respective jobs and then went back and forth from one job
to the other. Martin further testified that when he was assigned to walk lines, it
19 According to Respondent ' s Counsel Price, who was also the Company 's negotiator, the
disagreement was principally over seniority because Respondent wanted to be free to
transfer employees from its other plants. Price testified that there was also disagreement
in respect to which step in the grievance procedure the union representative could first
participate.
Although I have hereinafter discredited Haney's testimony in respect to his conversa-
tion with Chief Engineer Walker, I credit this testimony regarding Hardy Wiggins' direc-
tion of this work because it corroborates the testimony of Belote and Martin whom I regard
as truthful and credible witnesses.
BRECKENRIDGE GASOLINE COMPANY 1477
was Hardy Wiggins who took him out and told him which lines to walk and picked
him up on completion of his work. Martin also testified that he was directed by
Hardy Wiggins when to leave the plant and work in the field, and that on some
occasions this instruction was given when Liles was not present in the plant. All
three witnesses regarded Hardy Wiggins as their supervisor when they worked in
the field. They admitted, however, that they had not been told or did not know
the extent of Wiggins' authority.
The General Counsel subpenaed Hardy Wiggins to testify in respect to his alleged
supervisory status. Wiggins was obviously reluctant to testify to anything which he
regarded as adverse to Respondent's contention that he is merely a leadman or lead
mechanic and not a supervisor and attempted to avoid giving direct answers to
questions propounded to him by the General Counsel.21 In view of Wiggins' evi-
dent hostility to the General Counsel, his frequently contradictory testimony, and
his general unreliability, I credit it only to the extent indicated below. Wiggins tes-
tified that his job title is well switcher and that he is paid $1.86 per hour. 22 He is
responsible to Superintendent Liles for work in the field 23 Liles tells him what jobs
are to be done in the field and Wiggins assigns the work to a crew of four to seven
men.24 Wiggins admitted that he may have told the men where to dig drip holes,
that he told them how large the holes should be dug, and, on occasions, told them
to make a hole larger.25 He further testified that Liles comes out to check the
fieldwork once a week.26 Wiggins also admitted that the statements in his affidavit,
which reads "I lead the men in assigning work and seeing the job is done," was true.27
Wiggins denied that he has authority to suspend, promote, lay off, or discipline em-
ployees. He testified that Liles tells him what job to do and he tells the other
fellows. He also testified that he works in the field with the men. Wiggins char-
acterized his job as leadman. He admitted he sometimes tells Liles that a crew
man is "a good man" but denied that he ever recommended raises for any man.
Accordingly to Superintendent Liles, Hardy-Wiggins is a well switcher and his prin-
cipal duties are changing charts, checking and setting meters, and carrying out
Liles' orders regarding repairs in the field and installing or taking out meters. Liles
denied that Hardy Wiggins was a supervisor and denied that Wiggins had authority
to direct the work of the men in the field, to hire or fire, promote, lay off, suspend,
or recall employees, or to effectively recommend any such action. The record dis-
closes that Hardy Wiggins voted in the Board election.
On the foregoing record, I am persuaded and find that Hardy Wiggins responsibly
directs the work of a field crew of four to seven men. I further find that Wiggins
is regarded by the field crew members as their supervisor. The credited record
also discloses that Liles tells Wiggins what jobs are to be done in the field and
leaves the proper execution of such jobs to Wiggins, checking only once a week
presumably to see whether the work was properly performed. This work is per-
formed at considerable distances from the plant and without any supervision at
all except that provided by Wiggins. Thus, if Wiggins is not the supervisor of the
field crew, the crew would be working without any supervision whatsoever. Accord-
21 On several occasions it was necessary to admonish Hardy Wiggins not to fence with
the General Counsel and to answer questions directly.
21 Roustabouts are paid $1.562 per hour
23 Wiggins acknowledged that he executed an affidavit for the Board in which he stated,
"Mr Liles, the superintendent, holds me responsible for the [field] work." At the hearing,
Wiggins testified regarding this statement in his affidavit "In a way it is true. He
ILiles], himself, has never told me he held me responsible out there, but I figured he did "
zs Wiggins was extremely reluctant to admit that he assigned work to the field crew.
At first when he was asked whether he did so, Wiggins responded, "Mr Liles assigns the
job." When pressed for a direct answer to the question, Wiggins finally admitted that he
did so on some jobs and explained that when there are several jobs to do in the field, he
tells the men in the field crew on which jobs they should work. Wiggins was equally
reluctant to admit that he has a crew which works under him. At first he testified that
he did not have a crew. Thereafter, when his affidavit, which states "ilfy crew amounts
to about four to seven men," was called to his attention, he admitted that the statement
in the affidavit was true. Still later, in response to questions by Respondent's counsel,
Wiggins testified that the word "my" In the affidavit was "false" and should have been
"the." I credit only Wiggins' answers which conform with his affidavit
This corroborates the testimony of Belote, Martin, and Haney.
2e Wiggins testified that there was a time when Liles came out to check every day, but
he did not say how long ago that was.
27 On questioning by Respondent's counsel, Wiggins denied that he has authority to assign
work. I do not credit his denial which contradicts both his oral testimony and his affidavit.
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingly, I am persuaded and find that Wiggins does not routinely transmit instructions
from Superintendent Liles, but is responsible to Liles for the proper execution of his
orders. I therefore find and conclude that Wiggins is a supervisor within the mean-
ing of Section 2(11) of the Act 28 Moreover, even if I were to assume, arguendo,
that Wiggins' direction of the field crew is routine in nature as Respondent contends,
I would still regard him as a supervisor in accordance with the Board's decisions
which hold that where such direction is exercised on shifts where other supervisors
are not present and the employee who exercises such direction is responsible for the
work, such employee is a supervisor within the meaning of the Act. Southern In-
dustries Company, et al., 92 NLRB 998,•1001; California Spray-Chemical Corp., 86
NLRB 453, 454; Reeves Brothers, Incorporated, et al., 116 NLRB 422, 428.29
2. The solicitation of the decertification petition by Hardy Wiggins
According to the uncontradicted and credited testimony of employees William A.
Stephens, Samuel R. Brown, L. W. Carpenter, and O. S. Wiggins, in April 1958,
Hardy Wiggins solicited the employees of the Company's Lodi plant to sign a
petition variously described by said witnesses as a petition "to quit the Union," "to
get out the Union," and "to get rid of the Union." Stephens was asked to sign the
petition on April 8, 1958, while he was working in the engineroom at the Lodi plant.
Hardy Wiggins told Stephens, "We should all quit this union and all be peaceful
and friends ." At first Stephens refused to sign but after ascertaining from other
employees at the plant that they had signed, Stephens decided to go along with the
rest. Later, when Hardy brought the petition to Stephens in the engineroom a
second time, Stephens signed it. Brown was asked by Hardy Wiggins to sign the
petition about April 18 or 20, 1958, while he was working in his store in Oil City,
Louisiana, which is about 20 miles from the plant. Hardy came to Brown's store
in the Company's pickup truck. Although not positive, Brown believed the visit
occurred in the afternoon. Hardy asked Brown to sign a petition "to get out of
the union." Brown said he "didn't know about that" and asked whether the petition
was being circulated by Liles or the Company. Hardy said, "Well, it's the Company."
Brown then told Hardy Wiggins that he would let him know on Monday morning.30
Carpenter was asked by Hardy Wiggins to sign the petition while he was on the
job in April 1958. Carpenter looked at it, noted that there were not many signa-
tures thereon, and told Wiggins he might sign if a majority did. The next morning
at 7:45 a.m., Hardy Wiggins came to Carpenter's house in the Company's pickup
truck 31 On this occasion, when Carpenter looked at the petition, it had been signed
by all the employees except Brown, O. S. Wiggins, and himself. Upon Carpenter's
inquiry, Wiggins affirmed that Liles and the Company knew about the petition32
Carpenter then signed the petition. On cross-examination, Carpenter testified that
he signed the petition because of the Company's knowledge thereof and because he
felt "we could have been run off [discharged] if we didn't sign." Carpenter further
testified that notwithstanding their signatures to the petition, he was still collecting
dues from the six employees who had voted for the Union in the Board election and
were still employed by Respondent.33 O. S. Wiggins (sometimes referred to in the
record and this report as Odic Wiggins or Odic) was asked by Hardy Wiggins to sign
the petition "to get rid of the Union" in the "make" room at the plant as he came
off from work on the "graveyard" shift.34 Hardy told Odic "the Company couldn't
21 The fact that Wiggins does not also have authority to hire, fire, promote, lay off, or
recall employees or to effectively recommend such action does not affect my conclusion that
Wiggins is a supervisor, since his authority to responsibly direct the work of the field
crew in a manner not merely routine is sufficient to bring Wiggins within the Act's defini-
tion of supervisor Ohio Power Company v. N.L.R B., 170 F 2d 385 (C.A. 6).
20 I have considered the fact that Wiggins was allowed to vote in the Board-conducted
election, but do not regard it as determinative of the issue since (1) there was no Board
determination of the question of Wiggins' eligibility to vote, (2) too many other factors
may have entered into the Union's decision not to question Wiggins' eligibility, e g , its
unanimous support by the other employees in the unit, and (3) the Board does not regard
consent unit determinations by the parties as controlling The Standard Lime and Stone
Company, 95 NLRB 1141, 1142, footnote 5, and the cases cited therein
so Brown was one of the two employees of Respondent who did not sign.
81 Wiggins' starting time for work was 7 a.m.
a2 Carpenter explained that by the Company, he referred to Dofifemeyer, Ewing, and
other "stockholders."
as As aforestated, 10 employees had originally voted for the Union and 1 against.
84 The graveyard shift was from 11 p.m. to 7 a.m.
BRECKENRIDGE GASOLINE COMPANY 1479
do anything as long as the Union was tied up there." Odie replied that he did not
know whether he wanted to sign the petition and that he might if a majority signed
it. The next morning, after Odie had finished work on the graveyard shift and
gone to bed , Hardy Wiggins came in the Company's pickup truck to Odie's house
in Kildare , Texas, about 7 or 8 miles from the plant , and again asked Odie to sign
the petition . Odie said , "I didn 't feel like I wanted to sign it." He asked Hardy
if Ewing (one of Respondent 's partners ) knew anything about the petition and
Hardy said , "No." Odie then asked whether Liles knew about it and Hardy said that
Liles knew about it for a couple of days. Odie asked , "Well, who is the daddy of
this petition?" and Hardy replied , "I am." Odie then asked Hardy what he expected
to get out of it and the latter replied , "Not anything." Odie then told Hardy , "Well,
I am not going to sign it." 35
Although, as hereinabove stated , Hardy Wiggins was called by the General Counsel
to testify regarding his supervisory status with the Company , he was not questioned
regarding his solicitation of signatures to the petition by either the General Counsel
or Respondent . 36 Superintendent Liles denied that Hardy Wiggins had been au-
thorized by him to circulate the petition . Liles further testified that he did not know
that Hardy Wiggins had used the Company 's truck to solicit signatures to the
petition or that he had solicited the signatures on company time. Liles testified that
Hardy Wiggins had free use of the truck on his job and that his job covered a 20-mile
area around the plant . Liles denied responsibility for the decertification petition.
He testified that he first learned of the petition when Hardy Wiggins brought it to
his office and asked him to mail it to the Company's home office in Breckenridge,
Texas. He further testified that the looked at the petition at that time and observed
that there were 15 signatures on it and that Brown and O . S. Wiggins had not signed
it. Liles testified that that was all he knew about the decertification petition.37 On
further questioning , Liles, contrary to his testimony related above as to when he
first acquired knowledge about the decertification petition , testified that he found
out about the petition about 2 days before Hardy Wiggins' request that Liles mail
it to the Company . Liles then testified that on the earlier occasion Hardy Wiggins
told him he was getting one up and asked Liles whether he would mail it when he
"finished." Liles testified that he told Hardy he would.38
Since I have hereinbefore concluded that Hardy Wiggins is a supervisor of the
Company, I find and conclude that by the solicitation of signatures ' to the decerti-
fication petition by Hardy Wiggins, Respondent interfered with , restrained, and
coerced employees in the exercise of their rights guaranteed by the Act, and thereby
engaged in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.39 Hexton Furniture Company, 111 NLRB 342.
85 The petition was never signed by 0 S Wiggins
"Accordingly , the above testimony , which I credit, is uncontradicted
87 Respondent 's counsel acknowledged that it was present at the hearing and when asked
by the Trial Examiner whether he would produce it, said , "I would rather not.. . . I do
have it , yes, sir , I don't want to give it up and put it in the record."
81 As hereinabove stated, I do not regard Liles' testimony as reliable . Moreover, in
view of : (1) Liles' contradictory testimony regarding when he first acquired knowledge of
the decertification petition , ( 2) the fact that Hardy Wiggins' job was in the field and he
solicited signatures to the petition in Respondent 's plant, (3) the relatively small size
thereof , ( 4) the fact that Liles ultimately admitted that he knew hat Hardy Wiggins was
soliciting signatures for the decertification petition, and (5) Liles' complete knowledge of
how many signatures were on the petition and who did not sign, I do not credit Liles'
denial of knowledge that Wiggins circulated the petition on company time and with the
company truck.
39I further find Respondent sponsored and supported the execution of the decertification
petition , by permitting Hardy Wiggins, an employee identified with management in the
eyes of the employees who worked under his direction , to solicit the signatures of the
decertification petition on company time and with the use of the company truck , thereby
creating the impression among its employees that Hardy Wiggins was so doing with its
authority and that it was sponsoring the petition . My conclusion in this respect is
fortified by the fact that employees who were loyal to the Union and continued thereafter
to pay dues to the Union and thus would not likely have signed the petition , nevertheless
did so, because , as one employee testified , of fear of being "run off" from their jobs. I am
further persuaded to the conclusion that Respondent sponsored and supported the execu-
tion of the petition by the fact that Liles knew in advance that Hardy Wiggins was
soliciting signatures thereto, Liles was thoroughly familiar with how many employees
had signed and which employees had not , the petition was not mailed to the Board by
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The wage increase of November 3, 1958, without notification to or consultation
with the Union
As aforestated, the last negotiating session between Respondent and the Union
occurred in May 1958. On November 30, 1958, Respondent, without notice to or
,consultation with the Union, granted its Lodi plant employees a wage increase of 5
cents an hour. The granting of this increase is alleged by the General Counsel as
a violation of Section 8(a)(1) of the Act. Respondent contends that the granting
of this increase does not violate the Act because: (1) the record does not establish
that Respondent failed to notify or consult with the Union prior to the institution
of the raise; and (2) the certification year had expired and Respondent had in its
-possession a petition to the effect that practically all the employees no longer
desired the Union as their representative, a reasonable doubt existed as to the
Union's majority status.
I find no merit in either contention. As aforestated, employee L. W. Carpenter
testified without contradiction that he was a member of the Union's negotiating
committee, that he participated in the negotiations with Respondent, that the last
bargaining session was in May 1958, and that there was no notification or discussion
with the Union prior to the granting of said raise. Accordingly, I find that the wage
increase in question was granted by the Company without notifying or consulting
with the Union. Moreover, the contention that Respondent had a bona fide rea-
sonable doubt that the Union was no longer the majority representative of its em-
ployees is equally devoid of merit for the following reasons: (1) The Board's certi-
fication of the Union as the representative of Respondent's employees is still in
-effect, and, although the Company had a decertification petition in its possession, it
was not forwarded to the Board to determine by secret election whether or not the
,employees desired decertification of the Union. Sanson Hosiery Mills, Inc. v.
N.L.R.B., 195 F. 2d 350 (C.A.S); (2) the Company met and engaged in contract
negotiations with the Union in May 1958, after the decertification petition was in
its possession, and did not then, or insofar as the record discloses, thereafter ques-
tion the Union's majority status until the hearing herein; (3) since the solicitation of
the petition by a company supervisor constituted an unfair labor practice by it,
Respondent could not have a reasonable or good-faith doubt regarding the continua-
tion of the Union's representative status; and (4) even assuming arguendo that the
Union in fact no longer was desired as their representative by a majority of Re-
spondent's employees, the dissipation of the Union's majority was attributable to
Respondent's unfair labor practices hereinbefore found, including but not limited
to the solicitation of the employees to execute the decertification petition herein-
before described. Cf. Franks Bros. Company v. N.L.R.B., 321 U.S. 702; Ray
Brooks v. N.L.R.B., 348 U.S. 96; Stoner Rubber Company, Inc., 123 NLRB 1,440.
'On the record herein, I am persuaded and find that unlike the Stoner Rubber case,
supra, the Respondent did not in good faith doubt the Union's majority status, had
no reasonable ground for such doubt, and that its asserted doubt, raised for the
first time at the hearing herein, is an afterthought interposed only for the purpose of
meeting the allegation of the amended complaint; that Respondent violated the
Act by the granting of the November 1958 wage increase. Leisure Lads, Inc., 124
NLRB 431. Accordingly, I find and conclude that by its conduct in November 1958,
-of granting its employees a wage increase without notice or consultation with the
Union, Respondent interfered with, restrained, or coerced employees in the exercise
-of their rights under the Act to bargain collectively through the Union and thereby
violated Section 8(a)(1) of the Act.
F. Other alleged interference , restraint, and coercion
Sometime in April 1957, employee E. A. Haney had a conversation with Chief
Engineer Joe Walker at the latter's company-provided house.40 Walker's wife was
hardy Wiggins but turned over to Superintendent Liles for mailing to the Company, the
Company did not forward the petition to the Board but retained it in its possession, and
Respondent's counsel did not offer it at the hearing although in his possession. This
latter fact also suggests the inference that the petition, on its face, may have borne some
Indicia of company sponsorship or instigation, but I have not relied on this inference in
arriving at my conclusions regarding Respondent 's responsibility for the execution of the
petition.
40 Haney testified that the conversation was in August 1957 but admitted on cross-
examination that it might have occurred in April 1957. I credit Walker's testimony and
that of his wife that the April 1957 date is correct.
BRECKENRIDGE GASOLINE COMPANY 1481
present during all but a few minutes of the conversation. According to Haney,
Walker brought up the topic of the Union during the conversation and said that the
Union would not amount to anything, that the Company had hired lawyers for
prevent the Union from amounting to anything, that these lawyers would cause the
Union's following among company employees to dwindle to such a point that the
Union would not be able to get anywhere, that the Company would sell out before
it went Union, and that he, Walker, could not see how the men would get any more
through a union. Chief Engineer Walker and his wife testified on behalf of
Respondent and denied that Walker had made the statements described above.
According to Walker, the statements attributed to him by Haney were made by the
latter while he was accusing the Company of engaging in these tactics. Although
Walker admitted he did not like the Union and that he made no secret of that fact,
I am nonetheless persuaded by their demeanor and frankness that his testimony
and that of his wife regarding the conversation with Haney was truthful and I there-
fore credit Walker's denials that he made the statements attributed to him by
Haney 4! Accordingly, I find and conclude that Respondent did not engage in any
unfair labor practices insofar as the complaint is predicated on Walker's conversa-
tion with Haney.
Employee Stephens testified that on April 27, 1957, he had a conversation with
Chief Engineer Walker. According to Stephens, partner Dofflemeyer and Respond-
ent's Counsel Price had visited the plant office the preceding Sunday and he asked
Walker about it. Stephens testified that Walker said that Dofflemeyer had been,
down about the Union, that Walker further said he did not know about the Union
until partner Ewing told him all about it while he and Ewing were coming from,
Breckenridge,42 and that Walker also said he expected to see a bunch of young
men and was surprised to see old men joining the Union. Stephens testified that he
replied that old men joined as well as young men, and that Walker then asked what
Stephens expected to get out of the Union. Stephens then replied that he might not
get anything, and Walker said, "I don't like the Union and I am here to stay, and
you are all going to respect me or I'm going to make it so hard on you, you won't
stay." Stephens replied, "Joe, we respect you, but this union, it ain 't a thing in the
world to you one way or the other, and if I was you, I would stay out of it." When
Walker testified for Respondent, he was unable to recollect having any conversation'
with Stephens relative to the Union. However, Walker specifically denied that he
ever told Stephens or anyone else "you will respect me or I will make it hard for
you so you can't stay." I was not overly impressed with the reliability of Stephen's
testimony. He testified that on the day it occurred, he wrote down the date and
month of the foregoing conversation with Walker but not the year, and Stephens
was unable to remember whether the conversation occurred in 1957 or 1958. His,
reason for noting the date was asserted by Stephens to be that the subject matter
"might come up." His memory as to what written statements he executed and
signed and at whose request appeared poor. In respect to several minor matters,
he contradicted portions of the affidavit he executed for the Board. On occasions
during cross-examination, Stephens appeared to be reluctant to give direct answers
to questions and to be attempting to evade them. Conversely, I was generally im-
pressed with the frankness and reliability of Walker's testimony. According, I
accept as truthful Walker's denial that he made the threat attributed to him by
Stephens, and therefore find and conclude that Respondent did not engage in any
unfair labor practice insofar as the complaint is based on Walker's conversation with
Stephens.
On March 20, 1957, Respondent hired M. Rex Jones and Z. D. Reynolds as engine
operators for the new booster plant located a couple of miles from the Lodi plant.
Jones testified that before they were hired on that date, G. W. Ewing, one of the
partners of Respondent, had a conversation with them in which he said, "You know
we are having this labor trouble here . . . but I think it's all settled now." Jones
and Reynolds made no reply to this statement. Then Ewing asked them, "How do
you feel about the Union?" Jones replied that he had belonged to the Union but-
all he had received out of it was expense . Reynolds said that he had never be-
41 Haney testified, inter alia, that he forgot about two written statements executed by
him in connection with this proceeding until he was asked about them at the hearing, and
that he did not speak to the Board's attorneys before coming to court. I do not believe
him in either respect and generally do not credit his testimony, especially since it appeared
to be motivated by animus against Respondent based on his demotion from the position of
chief engineer and Respondent 's request that Haney vacate his company house for reasons
not here material.
42 Walker had come to the Lodi plant as chief engineer only a month earlier by way of
transfer from another plant of the Company.
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
longed to the Union. Ewing then said, "That's all I wanted to know." Z. D.
Reynolds testified that on the occasion in question, Ewing asked him whether he was
a member of the Union and Reynolds replied that he had never belonged to the
Union. Ewing then said, "That's good" and that "he had been having a little union
trouble." Reynolds further testified that Ewing then went back into the office and
told him and Jones to see Superintendent Liles and it was all right with Ewing if
they were hired. Both testified that they were hired by Liles immediately after
their conversation with Ewing. Ewing was not called by Respondent to refute the
above testimony. Superintendent Liles testified that it was he who hired Jones
and Z. D. Reynolds, that he did not inquire and did not know of their union status
or inclinations, and that he hired them because of the recommendation of a former
employer of his and without regard to their union status or inclinations. I find and
conclude that in the context of Respondent's hostility to the Union and other unfair
labor practices, the interrogation of Jones and Reynolds regarding their feelings
toward the Union was coercive within the meaning of the Board's Blue Flash
doctrine,43 and, therefore interfered with, restrained, and coerced employees in
the exercise of their rights under the Act, and thereby Respondent violated Section
8(a) (1) of the Act 44 John S. Swift Company, Inc., 124 NLRB 394, footnote 14.
Hiram Hector Reynolds, a brother of Z. D. Reynolds, was hired by Liles on May
12, 1958, as an engine operator and roustabout. Hiram Reynolds testified credibly
that about 3 days before he commenced to work for Respondent, when he was an
applicant for employment, Liles said to him, "I guess you have heard about the
trouble we have been having down here." Reynolds said he had heard. Liles then
told Hiram, "The reason I don't like the Union is because they advance men in
positions they are not capable of filling." Thereupon Reynolds told Liles that he
was not a member of the Union and never had been.45 Liles first testified that he
knew by "hearsay" that Hiram Reynolds had been a member of the Union. Liles
subsequently requested and was granted permission to make an explanatory
statement regarding his testimony. He then stated that he had heard by "hearsay"
that one of the "Reynolds boys" (three in all were hired) was a member of the
Union but did not know which one it was until he hired Hiram and "he told me he
had gone to the union" and so Liles then knew definitely and not by hearsay that
Hiram was Union. Liles further testified that he told Hiram that "we was
having a little union trouble" and that "he ought to know about it before he
went into it." 46 According to Liles, Hiram then told him that he had carried
a union card. Liles allegedly responded that it was immaterial to him whether
Hiram belonged to the Union, and that the only thing Liles had against the
Union was that they forced the promotion of employees to positions for which they
were not qualified. Liles denied that he asked Hiram Reynolds whether he was
Union or not. Since, as hereinbefore stated, I am not persuaded of the reliability of
Liles' testimony, I do not believe his testimony in any respect in which it contradicts
Hiram Reynolds and thus, 3 do not believe either that Liles told Hiram that it was
immaterial to him whether Hiram belonged to the Union, or that Hiram told Liles
he had been a member of the Union. However, since there is no testimony in the
record that Liles questioned Hiram regarding his union status, I find and conclude
that Liles' statement regarding his antipathy to the Union and his reason therefore
are merely expressions of noncoercive views and opinions protected by Section 8(c)
of the Act, and therefore, the Respondent did not engage in an unfair labor practice
insofar as the complaint is predicated on Liles' conversation with Hiram Hector
Reynolds.
G. The alleged discriminatory refusal to reemploy or rehire
R. D. Minnich and Billy Wayne Dellinger
R. D. Minnich was hired by Respondent in April 1953, as a roustabout. He
worked for the Company for almost 4 years and was laid off on February 4, 1957,
when Respondent discontinued employing roustabouts and commenced using
44 Blue Flash Express, Inc., 109 NLRB 591.
44 Whether Ewing imparted his knowledge of the lack of interest of Jones and Reynolds
in the Union to Liles is immaterial , since obviously Ewing , as partner and part owner of
Respondent , was Liles ' superior and Ewing could have rejected their applications for
employment if he was dissatisfied with the response to his interrogation of the applicants.
45 The foregoing is based on the credited testimony of Hiram Reynolds
4e There is no evidence that Respondent ever had any strike , picketing , or "labor trouble."
In view of the almost unanimous vote for the Union, I do not credit Superintendent Liles'
testimony that because of the Union , employees were not talking to one another and that
he regarded this as "labor trouble."
BRECKENRIDGE GASOLINE COMPANY 1483
contract labor as hereinbefore described . During the time he was employed by
Respondent , Minnich also performed the work of outside operator and operated
engines and loaded tank cars at the Company 's loading rack , about 15 miles from the
Lodi plant. Minnich joined the Union on January 8, 1957, and attended several
union meetings at about that time . Minnich 's work was concededly regarded as
satisfactory by Plant Superintendent Liles.
According to Minnich's credited testimony, on February 4, 1957, the day of the
layoff, Liles offered Minnich the job of working as an engine operator, a job which
Minnich had previously performed for the Company for about 9 or 10 months
and required working on rotating shifts. Becaus his wife was nervous and did not
like to stay by herself at nights and Minnich did not particularly like rotating shift
work, Minnich asked Liles for an hour to make up his mind. Liles replied that he had
to have an immediate answer, that Minnich had run the engines before, and, there-
fore, did not need time to think it over. Minnich then said that he could not
decide "that quick" and Liles replied that he would have to lay Minnich off with
the rest of the "boys." Minnich told Liles that evening that he would take the
offered job but Liles said he was "a little bit late." 47
Billy Wayne Dellinger was hired by the Company in July 1956 and worked as a
roustabout. He worked on maintaining the telephone line between the Lodi plant
and the Company's loading rack and also worked in the engine room and out in
the field. He had previous experience in oilfield work and was familiar with pipework
and connection work. Dellinger and Ray Albert, another roustabout, had also
worked on connecting most of the water, fuel, and air lines to the three new engines
which Respondent was installing at the Lodi plant.48 Dellinger joined the Union on
January 8, 1957, and attended several union meetings about that time. On February
4, 1957, Liles called five of the roustabouts into the office 49 and told them that
he was laying them off. Liles said he was satisfied with their work but that the
Company had instructed him to contract out the work. None of the six roustabouts,
who were laid off on February 4, 1957, were ever reemployed by Respondent.
The complaint herein alleges that Respondent refused to reemploy Minnich and
Dellinger because of their union membership and other concerted activity. After
the layoff, both Dellinger and Minnich applied to Respondent for reemployment on
several occasions. Dellinger testified credibly that he applied for reemployment on
four occasions, the last time by certified mail.50 The first such application was made
in the spring of 1957. Dellinger testified that he had heard that Respondent had
hired men to do the same kind of work that he had done.51 He went out to the plant
and spoke to Superintendent Liles. Liles told Dellinger that he did not have anything
for him. In July 1957, after hearing that Respondent had hired more men for
this type of work, Dellinger again applied at the plant for a job. Again Liles told
him he did not have anything for him. Dellinger applied a thrd time in August
1957 wthout success and received the same response from Liles. In April 1958,
Dellinger was asked by employee L. W. Carpenter whether he was still interested
in employment by Respondent. He told Carpenter that he was. Carpenter then
suggested that Dellinger write to Respondent instead of going to the plant because
Liles was busy at the booster plant and was hard to reach. Pursuant to Carpenter's
suggestion, Dellinger wrote and sent General Counsel's Exhibit No. 3 to
Respondent.52
"Liles denied that Minnich asked for an hour to think over the offer of the job of
engine operator . According to Liles , Minnich asked for time to think it over and Liles
would not give it to him. Liles also denied that Minnich later that day offered to accept
the job. Since, as aforestated, I do not regard Liles as a reliable witness, I credit
Minmch's testimony in any respect in which their testimony does not agree.
41 At the time of the layoff, there was still work to be done, which would take a month
or two to complete , to ready these engines for use.
40 The sixth, Ray Albert, was not working that day. He was, as aforestated, laid off
the next day
6° General Counsel's Exhibit No. 3.
61 This application for reemployment was made after Dellinger had heard of the employ-
ment by Respondent of Bobby Joe Wiggins. Since Wiggins was hired on May 20, 19.37,
and Minnich testified that he accompanied Dellinger on this occasion and that it was
about 3 months after the layoff, I find and conclude that this application for reemploy-
ment was made by Dellinger and Minnich either late in May or early in June 1957.
52 On each of the occasions , except the first on which he applied , Dellinger was working
on other jobs , some of which paid more than he had been earning when employed by
Respondent . Dellinger credibly explained that he was nevertheless genuinely seeking
reemployment by Respondent because these other jobs were all temporary in nature,
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Minnich credibly testified that he accompanied Dellinger and applied to Respondent
for reemployment about 3 months after he was laid off. Minnich testified that he
was told by Liles that he had nothing for him just then. Minnich told Liles that he
wanted to come back to work for Respondent and was letting him know that he was
still interested in employment with the Company. Liles laughed and said, "Well,
Robert, if I ever hear anything I think you can do better than someone else, I will
let you know." The next time Minnich applied was by letter sent by certified mail.53
Minnich credibly testified that at the time he wrote the letter he did not have steady
employment, and L. W. Carpenter suggested that he make a written request for
permanent employment 54 On the foregoing uncontradicted and credited testimony
of Dellinger and Minnich, I find and conclude that they made repeated and continuing
applications for employment by Respondent on and since the latter part of May
or early June 1957.
Following the layoff, Respondent hired a number of employees, including some
for jobs requiring similar skills and experience to those of Minnich and Dellinger.
Thus, on May 20, 1957, Bobby Joe Wiggins, a son of Hardy Wiggins, was hired by
Respondent to work as a roustabout at the Lodi plant; on April 9, 1958, Liles hired
Bobby Joe Flores as a loader and to do office and clerical work; on July 5, 1958,
Liles hired Raymond Godwin and Leon Green to perform casual labor work and
to do cleanup work around the Lodi plant; on August 26, 1958, Liles hired R. G.
Williams as a roustabout and operator; and on October 7, 1958, he hired James
Eddie Sprayberry as a maintenance helper. In addition to these hires at the Lodi
plant, Respondent made a number of new hires to staff the booster plant. Thus, on
March 15, 1958, Liles hired M. J. Thomas as a roustabout and engine operator; on
March 20, 1958, he hired M. R. Jones and Z. D. Reynolds as engine operators; on
April 1, 1958, he hired J. O. Reynolds as pan engine operator; on May 12, 1958, he
hired Hiram H. Reynolds as engine operator and roustabout; and on July 10, 1958,
he hired C. H Addie as an engine operator and roustabout.
As aforestated, Bobby Joe Wiggins was hired to work as a roustabout at $1.562
per hour. This job was identical to that which Minnich and Dellinger had per-
formed prior to the layoff. Bobby Joe Wiggins had previously worked for Re-
spondent for a short time as a casual laborer, the Company's lowest job classifica-
tion the rate for which is $1.25 per hour, but had quit to take a business course.
Liles testified that he did not consider any of the employees who had been laid off
when he decided to hire Bobby Joe Wiggins. Liles testified that his reason for nbt
considering the laid-off roustabouts was that five of the six had no exceptional
training for gasoline plant work and were just normal roustabouts and, that there-
fore, he did not go out of his way to look for them, whereas Bobby Joe Wiggins
was handy. Another reason which Liles asserted for hiring Bobby Joe Wiggins was
that Hardy Wiggins was overloaded with fieldwork and Liles knew that he would
properly train his son. Liles further testified that he hired Bobby Joe Wiggins with
the intention of transferring him later to Oklahoma.55 Liles also testified that he
did not hire Minnich for the job for which he hired Bobby Joe Wiggins because
Minnich had already turned down his offer of a job in operations and because
Minnich had been "terminated quite some time before " The credible record does
not support the reasons asserted by Liles for hiring Bobby Joe Wiggins rather than
Dellinger or Minnich for this job. Thus, Bobby Joe Wiggins had voluntarily quit
the Company's employ, whereas both Minnich and Dellinger, admittedly satisfactory
employees, had been laid off allegedly only because of the Company's decision to
cease employing its own roustabouts and to use contract labor. Minmch had been
employed by the Company for 4 years whereas Bobby Joe Wiggins had been
sa General -Counsel's Exhibit No. 4
64 From the similarity in the verbiage of the letter written by Dellinger, Minnich, and
another former employee, Billy Bob Belote (Respondent's Exhibit No. 6), the fact that
Carpenter, a member of the Union's negotiating committee, suggested to Minnich and
Dellinger that they write the letters and a copy of Minnich's letter was sent to Massengale,
the Union's representative, and the fact that the letters were all sent by certified mail,
I am persuaded and find that the letters were sent pursuant to the Union's suggestions.
However, since I am persuaded by the record that Dellinger and Minnich were genuinely
seeking reemployment by Respondent, my conclusion that the letters were suggested by the
Union does not excuse Respondent's failure or refusal to reemploy Dellinger and Minnich,
If, in fact, such refusal was motivated by antiunion considerations.
55 In view of my general disbelief in Liles' veracity and the fact that Bobby Joe was
never transferred to Oklahoma, I do not credit Liles' unsupported testimony that Bobby
Joe was hired with the intention of transferring him to Oklahoma.
BRECKENRIDGE GASOLINE COMPANY 1485
employed only a short time 56 Moreover , both Dellinger and Minnich were
roustabouts during their employment with the Company and were familiar with
fieldwork, whereas Bobby Joe had been a casual laborer and the roustabout job for
which he was hired represented a promotion for him to a job with more pay than
he had previously earned and for which he required training . Contrary to Liles'
testimony that Minnich had been terminated "quite some time before ," only 31/2
months had elapsed between his layoff and the hiring of Bobby Joe Wiggins. More-
over, Liles' additional asserted reason for not hiring Minnich, that he had turned
down the offer of a job in operations , has already been discredited by me, since I
have hereinbefore found that Minnich did not reject the job offer but merely asked
for an hour to consider it, and when , later that day he told Liles he would accept
the job, Liles said he was too late. Furthermore , the job for which Bobby Joe
was hired was the same as that which both Minnich and Dellinger had occupied
when laid off . Liles admitted that he "didn 't know a good reason" for not hiring
Dellinger except that "Bobby Joe Wiggins was handy ." There was no showing by
Respondent that Dellinger or Minnich were not "handy ." For all the foregoing
reasons, I do not credit Liles' testimony in respect to his reasons for not rehiring
either Minnich or Dellinger for the position of roustabout for which he hired Bobby
Joe Wiggins.
The next new hiring by Respondent at the Lodi plant was on April 9, 1958,
when Bobby Joe Flores , who had never before worked for Respondent , was hired
as a loader and to do office and clerical work at $1 . 562 per hour. Liles explained
his reason for hiring Flores as follows : that Flores was young and attending night
school at Centenary College, that he put him on loading trucks and doing office
and clerical work, and that he hoped that by the time Flores finished school, he
would be familiar enough with clerical work to move up in management. Liles
further testified that he believed that the laid -off roustabouts including Minnich
"were more inclined to work on the outside with their hands ." 57 Liles admitted
that the loading job for which he hired Flores was the same work as that previously
done by Minnich. He further admitted that he was "confident Mr. Minnich could
have held the [clerical ] job." Liles further testified that he did not consider
Minnich for this job "after he refused to take the job I had offered him before."
Liles then suggested that personal reasons prompted his failure or refusal to consider
Minnich for the job. Liles explained that he had received "one or two" anonymous
letters which he believed "pointed to" Minnich, that he had questioned Minnich
and his wife regarding the letters , and that they had denied responsibility therefor.
Liles then testified he forgot about the letters and "more or less disregarded it and
forgot about it." Liles then conceded that the anonymous letters were not the
reason for not calling Minnich back , and repeated that the reason was Minnich's
rejection of the job offered Minnich at the time he was laid off, a better job than
any he had to offer since . I am not persuaded and do not credit the reasons
asserted by Liles for hiring Flores, a new employee with apparently no prior
experience in the industry, for a job which admittedly could have been performed
by Minnich and quite obviously also by Dellinger, who in addition to his service
with the Company , had previous oilfield experience . At the time this job was
filled, both Dellinger and Minnich had admittedly applied for continuous considera-
tion for reemployment by Respondent . Liles' assertion that he was considering
Flores as possible future management material does not impress me in the absence
of any testimony as to why Dellinger and Minnich could not qualify as future
management timber.58 Moreover , in view of the conclusionary assertion by Liles
without testifying to any basis therefor , that he believed the laid-off roustabouts
and Minnich and Dellinger preferred to work outside with their hands , Liles' sug-
gestion, later admitted to be without foundation , that the anonymous letters were
the reason for not hiring Minnich for this job, my disbelief of Liles' testimony
generally, and Liles' discredited testimony regarding the alleged refusal by Minnich
to accept the engine operator job offered him at the time of the layoff,59 I am
56 Bobby Joe Wiggins was originally hired by the Company on June 2, 1956 He was
hired the second time on May 20, 1957 The record does not disclose how long Bobby Joe
worked before he quit " to take a business course" but obviously , he could not have
worked more than about 9 or 10 months at the maximum.
57 No basis upon which the reasonableness of this belief could be assessed was testified
to either by Liles or any other witness In view of my general disbelief of Liles' re-
liability , I do not credit this conclusionary testimony.
59I am further not persuaded by this testimony in view o f the voluntary termination of
Flores after a short period of employment by Respondent
59At one point in his testimony regarding new jobs which became open at the booster
plant , Liles testified , inter alma, that the reason he did not hire Minnich for any of those
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
persuaded that the reasons asserted by Liles for not hiring either Minnich or
Dellinger for this job were pretextual.
On July 8, 1958, Liles hired two casual laborers, Raymond Godwin and Leon
Green, to do cleanup work about the Lodi plant at $1.25 per hour. Liles testified
that he told these two men that he did not want them to do any roustabout work
or to work with the roustabouts.60 Liles further testified that he did not consider
any of the laid-off employees for this job because he did not think they would be
interested.61 Liles further testified that up to this date (July 8, 1958), he had not
had any job opening for which he could have hired a regular roustabout. This,
of course, was not true, since Bobby Joe Wiggins had been hired as a roustabout
and Flores had been hired to do the identical work which Minnich had performed
and was admittedly capable of performing. In any event, Liles did not inquire of
Minnich or Dellinger whether they would be interested in the job for which he
hired Godwin and Green. Liles testified that his reason for that was the low
wages and that he knew from the last time he talked to Minnich that he was
earning more than he could pay him for the job. I do not credit Liles' explanation
for his failure to inquire whether Minnich or Dellinger or both would be interested
in these jobs. Insofar as this record shows, Liles had only talked with Minnich
once after the layoff, and that had occurred more than a year earlier. Similarly,
Dellinger had not verbally asked for employment since August 1957. Moreover,
only a few months before, by certified letters sent in April 1958, Dellinger and
Minnich had requested employment and the letters disclosed neither that they were
employed nor, if so, what they were earning. Under these circumstances, it would
be reasonable to assume that absent other motivation, Liles would at least have
inquired whether these previously satisfactory employees were interested in the two
jobs. I am satisfied on the record herein, that the reasons asserted for not hiring
Minnich and Dellinger, or at least inquiring of them whether they would be in-
terested in these two jobs, are fabrications.
In addition to the foregoing jobs at the Lodi plant, Liles also filled a number of
jobs at the new booster plant with new employees. As aforestated, on March 20,
1958, W. R. Jones and Z. D. Reynolds were hired as engine operators at $1 815
per hour; on April 1, 1958, J. O. Reynolds was hired as an engine operator at $1.815
per hour; and on May 12, 1958, Hiram Reynolds and C. H. Addie were hired as
roustabouts and engine operators at $1.562 and $1.815 per hour. W. R. Jones and
the three Reynolds had never worked for Respondent before. Liles testified that
they had been recommended to him by a former employer as experienced operators
and that he personally knew nothing about their qualifications. Minnich had also
performed engine operations for the Company and had been a roustabout also. Liles
regarded him as a satisfactory employee and had offered Minnich a job as engine
operator on the day he was laid off. Thus, the record is clear and I find that Minnich
was qualified to fill the positions for which the Company hired Jones and the three
Reynolds. Liles testified that none of the roustabouts were qualified without prior
training to fill the jobs at the booster plant. The experience of the roustabouts other
than Minnich and Dellinger is, of course, immaterial since there is no charge in this
proceeding based on the failure or refusal of Respondent to reemploy them. As to
Minnich, Liles testified, as aforestated, that Minnich was wishy-washy and Liles could
not be sure if he hired him that Minnich would be satisfied with the job later. I have
already indicated my lack of belief in this testimony of Liles and my reasons there-
fore (see footnote 59). Significantly, Liles testified, "I didn't see why I should con-
sider them [Minnich and Dellinger] anyway for the job I was hiring these men on." 62
jobs was that Minnich was "wishy-washy" and Liles could not be sure if he hired him
that he would he satisfied later At another point in his testimony, Liles testified that
because Minnich could not immediately make up his mind to accept the job offered him at
the time of the layoff, he regarded him as not competent to make quick decisions required
in the performance of that job In the light of the record herein which discloses that
prior to the layoff of the roustabouts, Minnich had already satisfactorily performed the
job of engine operator which required "quick decisions" and that Liles regarded Minnich
highly enough to offer hun that job, I regard Liles' aforesaid characterizations of Minnich
as an incredible minimization of an admittedly satisfactory employee
60 No reason was given by Liles as to why he considered this admonition to be necessary.
This volunteered testimony suggests , however, that Liles was attempting to avoid the
appearance of discrimination against Minnich and Dellinger from whom he had by then
received by certified mail written continuous applications for employment.
GI The jobs lasted 6 months.
19 As aforestated Hiram H. Reynolds and C. H. Addie were hired as roustabouts and
engine operators . Minnich was qualified to do both types of work and Dellinger had
BRECKENRIDGE GASOLINE COMPANY 1487
In view of my disbeliefof the reasons asserted by Liles for not hiring either Dellinger
or Minnich for the above jobs which he filled with new, and in some instances, inex-
perienced employees, it is not difficult to perceive the true reason therefore. Liles
admitted that he knew that Minnich and Dellinger were union members.63 I have
hereinbefore found that the layoff of the roustabouts (including Minnich and Del-
linger) was not motivated by economic considerations as asserted by Respondent,
but to defeat the Union's effort to become the representative of its production and
maintenance employees. I have further found that Respondent attempted to conceal
its knowledge of the filing of the Union's petition for certification in an effort to
abscure the true motivation for the layoff of the roustabouts. I have further found
that in pursuance of its objective to defeat the Union's organizational effort, Re-
spondent hastily and unilaterally granted its employees the largest wage increase
that had ever been given to them. I have further found that in filling new job
vacancies, Respondent unlawfully and coercively interrogated job applicants as to
their union membership and/or sympathies. Moreover, I have found that Respondent,
through its supervisor, Hardy Wiggins, sponsored and supported the execution by
its employees of a decertification petition, and that in November 1958 Respondent
granted a wage increase to its employees, again without negotiation or consultation
with the Union. In the light of this continuous record of antiunion conduct and
motivation and my disbelief of the reasons asserted for not hiring Minnich and
Dellinger for the aforedescribed jobs for which they were qualified, I find and con-
clude, contrary to Liles' denial thereof, that the failure and refusal to do so was
likewise motivated by their union membership and adherence.64
Accordingly, I find and conclude that Respondent, by its failure and/or refusal to
employ Minnich and Dellinger on or after March 8 and 12, 1958, respectively,65
because of their membership in and adherence to the Union, thereby discriminated
in respect to hire or tenure of employment of Minnich and Dellinger and discouraged
membership in the Union in violation of Section 8(a)(3) and (1) of the Act.66
Textile Machine Works, Inc., 105 NLRB 618, enfd. 214 F. 2d 929 (C.A. 3).
H. The alleged discriminatory discharge of 0. S. Wiggins
0. S. Wiggins was employed by the Company gat the Lodi plant from 1959, when
the Company bought the plant from Phillips Petroleum Company, until July 8, 1958,
when he was discharged. The General Counsel contends that Wiggins was discharged
because he had refused in April 1958 to sign the decertification petition. Respondent
contends that the discharge was for cause.
At the time of the election in March 1957, Wiggins was Respondent's chief operator
and thus a supervisor and not eligible to vote. At his own request, Wiggins was later
demoted from his position as chief operator to operator, and in the summer of 1957
he joined the Union. About the time he joined the Union, Wiggins showed Super-
intendent Liles his union card and Liles said, "That's what I expected." Liles further
told Wiggins that if he had joined the Union with the expectation that it would keep
been a roustabout. Both of these jobs were filled after lifinnich and Dellinger had sent
certified letters to Respondent requesting employment by Respondent
63 On further questioning by Respondent's counsel, Liles was asked the basis of his
knowledge of Dellinger's and Minnich's union membership and said, "Just the knowledge
that they told me." Then he testified that "they had never give me any proof of it"
Then when asked by the Trial Examiner whether he knew that Minnich and Dellinger
"were members of the Union," Liles evasively responded, "I don't know that they are now."
Then when again asked whether he thought "they were," Liles replied, "I don't really
know " When the conflict in his testimony regarding his knowledge of Minnich's and
Dellinger's union membership was called to Liles' attention, he testified, "I presume they
were because the boys told me when I laid them off they were 100 percent union." I do
not credit Liles' attempt to evade his prior admission of knowledge of Minnich's and
Dellinger's union membership.
s' Since the failure or refusal to hire Minnich or Dellinger for the job vacancy filled by
Bobby Joe Wiggins occurred more than 6 months prior to the filing of the charges of
discrimination in respect to Minnich and Dellinger, I shall not predicate any order based
thereon
es These dates are 6 months before Minnich and Dellinger filed their respective charges
herein
60 In view of my findings above regarding the aforedescribed job vacancies for which
Minnich and Dellinger were qualified but were not hired by reason of Respondent's anti-
union motivation, I find it unnecessary to discuss or make findings in respect to whether
or not Minnich and Dellinger were also qualified to fill the other job openings which the
Company filled with new employees
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him on the job, he was mistaken. Liles further said, "As long as I am boss it won't
.never do you any good." As aforestated, in April 1958, O. S. Wiggins was solicited
.to sign a decertification petition by Hardy Wiggins, but refused to sign.
On July 7, 1958, O. S. Wiggins worked on the graveyard shift from 11 p.m. to
7 a.m. Wiggins had previously been instructed that in the event of trouble with
equipment, he was to call Chief Engineer Joe Walker. Sometime around midnight
or 1 a.m. while working at his job, Wiggins observed from the sound of the boiler
feed pumps that they were not operating properly. He looked at the boiler and
.observed from the pressure reading that one of the boiler feed pumps had ceased
operating" Wiggins then proceeded to get the pump operating again and checked
the water levels in the boilers and observed that they were in order. However, the
pump did not keep working very long before it stopped again . Wiggins then attempted
,to start the standby or mudhog pump, but it would not operate. He then asked
employee Paul Blizzard to call Joe Walker. It was then just before 2 a.m. Walker
came down promptly. He and Wiggins worked together and succeeded in getting
-the boiler feed pump to run. Then Wiggins left the boilerhouse and made his round
,of the rest of the distillation system. While Wiggins was on his round outside, Walker
started to work on the mudhog pump but the boiler feed pump quit again , and instead,
he worked on starting it up again. When Wiggins returned to the boilerhouse, he
found that the water level was down in one boiler so he cut the fire from under the
boiler. He then worked with Walker on getting the boiler feed pump to operate
again. When the pump resumed operating, the water came back in the boiler so
Wiggins fired it up again. Wiggins observed that the water level was up in the other
boilers so he again went out to make another round of the distillation system. He
found during his round outside that the steam pressure was down a little so he had
to regulate that before he returned to the boilerhouse. When he got back to the
boilerhouse there was again difficulty with the boiler feed pump which was operating
improperly and again he worked with Joe Walker until about 4 or 5 a.m. trying to
get the pumps to operate properly. The pump would operate a short time and then
'kick off and then they would attempt to get the pumps to run again . This situation
,continued for several hours making it impossible for Walker to do anything about
repairing the mudhog pump other than to ascertain what was wrong with it. About
5 a.m. when Wiggins returned from a round of the distillation system he found
Walker at the board where the charts and gauges were in the boilerhouse and Walker
said, "I can't get the pumps to run." About that time the number 4 boiler blew out
and steam came flying out of it. Wiggins cut off the fuel and Walker told him, "We
are going to have to shut down." Thereupon Wiggins cut out the fire from under
the rest of the boilers and Walker called Liles. When Liles arrived shortly thereafter,
Walker started to take off the head of the mudhog pump and Wiggins helped him
with that. Wiggins then went out to the distillation system to shut down the pumps,
release the steam pressure, and shut down the rest of the equipment. He was still
doing that when his relief man showed up at 6:30 a in. and the relief man took over.
Thereupon Wiggins went home and to bed. Wiggins testified that when the boiler
blew, Walker said, "Well, we have done everything in the world we could," and that
Walker also said that they could not help losing the boilers. Walker's testimony
regarding the events of the night in question corroborated that of Wiggins but in
greater detail. Walker testified that about 30 to 45 minutes after his arrival at the
boilerhouse, Wiggins told him that the soft plugs had gone out in the number I and 2
boilers and Wiggins shut off the fires in 1 and 2 in order to cool off the boilers in
preparation for putting the plugs back in. He further testified that with these two
boilers down, it was necessary for Wiggins to go out to shut down some of the equip-
ment in the distillation system because the remaining boilers were not putting out
sufficient steam pressure to operate the entire plant. Walker admitted that Wiggins
did not loaf on the job and that as a result of their exertions that night both he and
Wiggins were soaking wet in the hot boilerhouse. Walker was not asked, and did
not therefore deny, the statement attributed to him by Wiggins at the time the number
4 boiler blew.
As a consequence of the occurrences that night, the crown sheet on one boiler
was separated from the side of the boiler and dropped, the soft plugs in most
of the boilers came out, and a considerable number of the staybolts were loosened.
This according to Walker and Liles occurred because of Wiggins' failure to turn
off the water to the boilers in addition to shutting down the fires.67 The actual
damage to the equipment, according to Liles, was $1,100.
67 Wiggins' explanation for not turning off the equipment sooner than he did was that
the plant only functions profitably when all the equipment is kept running and that, there-
fore, every effort is made to keep the plant running and, only as a last resort, is the
equipment shut down
BRECKENRIDGE GASOLINE COMPANY 1489
Wiggins testified that that afternoon Liles came to his house and told him that
he was going to let him go. Wiggins asked Liles why. Liles replied that the crown
sheet had dropped on the number 4 boiler and he was going to let him go because
he had not properly kept up with his job. Wiggins replied that he did everything
that he could that night to prevent damage to the equipment and that Walker had
been working with him in the boilerhouse all of the time except for the times when
Wiggins went out to the distillation system to take care of that equipment. Wiggins
suggested that Walker should have checked the water level while he was out at the
distillation system. Wiggins testified that when he said that to Liles, the latter said
that Walker did not know anything about the boilerhouse. Wiggins then told
Liles that he thought he was being let out because he had participated in the Union
and would not sign the decertification petition. Liles said that that had nothing
to do with his discharge.
Walker testified that his responsibility consisted only of repairing the equipment
and that he had no responsibility over the maintenance of the boilers. He stated
that on occasions when he performs repair functions, he does not assume the routine
operating duties of the operator whom he is helping at the time. Walker admitted
that the mudhog pump would not run and that if it had been operating there would
have been no damage to the equipment. Walker further testified that when Liles
came down to the boilerhouse that morning, he instructed Wiggins to shut off the
water to all the boilers and then asked what was wrong with the mudhog pump on
which Walker was then working Liles first asked Walker about what happened
to the boilers about 7 a.m.68 Walker testified that he did not tell Liles that it was
Wiggins' fault that the boiler blew and Liles did not ask him. However, Walker did
testify that there was negligence on the part of Wiggins in not putting out the fires
and turning off the water. This could have prevented the crown sheet from shrink-
ing, separating from the side of the boiler, and dropping. Walker also testified
that had he known that the water in the boilers was so low, he would have turned
them off or told Wiggins to do so, but he assumed Wiggins would do it if it became
dangerous and he had relied on Wiggins completely.
Liles testified that the damage to the boilers that night was about $1,100 and
that the greatest damage was to number 3 boiler which had the dropped crown
sheet.69 The other boilers had about 40 to 50 loose staybolts. Liles testified that
when he came down, he expected to see that the water as well as the fire had been
cut off from the boilers but that there was still some water feeding into the boilers,
and he therefore instructed Wiggins to turn off the water. Liles acknowledged that
a similar accident had occurred when employee Osborne was operating the boiler-
house and that as a result all five soft plugs had come out of the boilers. However,
on that occasion Osborne had taken the necessary precaution of shutting off the
water, as a result of which serious damage to the boilers was prevented. Liles testi-
fied that later that morning, he called Breckenridge and notified them of the occur-
rence and informed them that he intended to fire Wiggins. Liles denied that he
fired Wiggins because of the latter's union membership or activity. He further
testified that he would have fired his own brother for what happened that night.
Liles further testified that if he were looking for a pretext to fire Wiggins he could
have done so several months earlier when Wiggins left the dephlegmator run over
and off-color 15,000 gallons of gas 70 Liles suggested that Wiggins should have
called Chief Operator Swearingen who was more familiar with the boiler operation
than Walker." Since this occurrence, Respondent has posted a notice containing
detailed instructions to operators on what to do in the event of such emergency
conditions as existed on the night of July 7, 195872 Liles testified that he believes
this notice was posted in December 1958.
About a week or 10 days after he was fired, Wiggins saw partner Ewing in the
field and asked Ewing why he was fired. Ewing replied that it was company policy
18 This was more than 1 hour after Liles arrived at the boilerroom.
69 Wiggins and Walker had testified that it was number 4, but I consider this variance
in the testimony as immaterial.
70 Wiggins admitted that 2 to 4 months prior to his discharge, he had been reprimanded
by Liles for not paying close enough attention to the equipment on an occncion w'"en, as
a result of the failure of the dephlegmator to operate properly, the tank filled up so high
that it spilled over and off-colored some ensnline
711 do not credit this in view of the fact that the equipment which was not functioning
properly was the pump and not the boilers, and, according to the credit testimony of
both Wiggins and Walker, it was Walker's responsibility to repair such equipment
72 General Counsel's Exhibit No 12.
560940-61-vol . 127-95
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that when a crown sheet is pulled , the employee on duty is automatically fired.
Wiggins testified that that was the first time he had heard of any such policy.
On the record herein, I am not satisfied that Wiggins' belief, that Walker's pres-
ence in the boilerhouse relieved him of responsibility for the damages to the boiler,
is a reasonable one. I have heretofore indicated that Walker is a credible witness.
Walker denied that it was his responsibility to do anything other than repair
defective equipment and the General Counsel has produced no proof to the con-
trary. Walker credibly testified that the failure to timely shut off the water was
negligence on Wiggins' part. Whether or not, under the emergency conditions
which existed that night, Wiggins was negligent in not turning off the water is
immaterial if Respondent's discharge of Wiggins was based on the belief that he
was negligent. On the record herein, I cannot conclude that Respondent used
this incident as a pretext to fire Wiggins and that the real reason for his discharge
was antiunion motivation. The record shows that Liles had known of Wiggins'
membership in the Union for a year prior to the occasion of his discharge and that
the discharge occurred approximately 2 months after Wiggins had off-colored a
considerable quantity of gasoline, an incident which could have been used by Liles
as a pretext to fire Wiggins if Liles were so inclined 73 However, in the light of
Wiggins' discharge on the very day when considerable damage to equipment oc-
curred, and the absence of proof that Wiggins was clearly not negligent in the
performance of his duties, I cannot conclude that the asserted reason for Wiggins'
discharge was pretextual, and I therefore conclude that the General Counsel has
not sustained his burden of proving by a preponderance of evidence that the dis-
charge of Wiggins was motivated by his union membership or activity or his refusal
to sign the decertification petition. Accordingly, I will recommend that the com-
plaint insofar as it is based on the alleged discriminatory discharge of O. S. Wiggins
be dismissed
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section 1, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Since I have found that Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent has discriminated and is discriminating in regard
to the hire of R. D. Minnich and B. W Dellinger, I will recommend that the Re-
spondent be ordered to offer each of them immediate employment with such
seniority or other rights and privileges as each would have enjoyed had each been
employed on the date when, absent the Respondent's discrimination against them,
the Respondent would have employed them. I will further recommend that the
Respondent be ordered to make R. D. Minnich and B . W. Dellinger whole for any
loss of pay each may have suffered as a result of Respondent's discriminatory re-
fusal to hire them from the respective date of discrimination against such discrim-
inatee to the date when each is offered employment. The date from which backpay
shall run in favor of each discriminatee shall be determined on compliance with
the Board's Order, by fixing the date when each would have been employed by
Respondent (absent the discrimination against him) in accordance with nondis-
criminatory hiring practices. Consistent with the Board's current policy of com-
puting backpay,74 I will recommend that loss of pay be computed on a quarterly
basis in the manner set forth in F. W. Woolworth Company, supra, less the net
earnings of each discriminatee during each said period. I shall also recommend
that the Respondent make available to the Board, upon request, payroll and other
records to facilitate the determination of the amounts due under this recommended
remedy.
In view of the nature of the unfair labor practices committed , the commission
of similar and other unfair labor practices reasonably may be anticipated. I shall
731 realize , of course , that the date of this incident in relation to Wiggins' refusal to
sign the decertification petition is not definitely shown by the record, and that this in-
cident might have occurred before Wiggins' refusal to sign.
71 F. W. Woolworth Company, 90 NLRB 289.
ORANGE PREMIUM STAMPS, ETC. 1491
therefore recommended that the Respondent be ordered to cease and desist from in
any manner infringing upon the rights guaranteed to its employees by Section 7 of
the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Oil, Chemical and Atomic Workers International Union , AFL-CIO, and Local
4-245, Oil, Chemical and Atomic Workers International Union, AFL-CIO, are
labor organizations within the meaning of Section 2(5) of the Act.
2. By discriminating in respect to the hire of R. D. Minnich and B . W. Dellinger,
thereby discouraging membership in Oil , Chemical and Atomic Workers Interna-
tional Union, AFL-4CIO, and its Local 4-245, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By the foregoing conduct, and by interrogating employees in respect to their
union membership , activities , and desires , and by unilaterally granting wage in-
creases to its employees without notification to or consultation with Oil, Chemical
and Atomic Workers International Union, AFL-CIO, and its Local 4-245, and by
its sponsorship and support of a petition to decertify or reject said Union as the
representative of its employees , Respondent has interfered with, restrained, and
coerced employees in the exercise of their rights guaranteed in Section 7 of the
Act, and thereby the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)( I) of the Act.
4. The General Counsel has not sustained the burden of proof of the allegations
contained in paragraphs numbered 6 and 7 of the complaint in respect to O. S.
Wiggins.
5. The aforesaid unfair labor practices affect commerce within the meaning of
the Act.
[Recommendations omitted from publication.]
Orange Premium Stamps (Division of Alfred M. Lewis, Inc.) I
and Local 542, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America, Inde-
pendent. Case No. 21-CA-3607. June 24, 1960
DECISION AND ORDER
On November 20, 1959, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, Respondent and the
General Counsel filed exceptions to the Intermediate Report and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a, three-member panel [Chairman Leedom
and Members Bean and Jenkins].
. The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.'
1 At the hearing the name of the Respondent was corrected to read as above.
z Respondent excepts to the Trial Examiner's refusal to admit into evidence a "Log" or
a series of notations made by Thomas Puffer of his telephone conversations with certain
127 NLRB No. 169.