Carl S. Ham, Inc.

National Labor Relations Board - Board Decisions

Apr 11, 1968

170 N.L.R.B. 1310 (N.L.R.B. 1968)

1310 DECISIONS OF NATIONAL
Carl S. Ham, Inc . and Oil, Chemical and Atomic
Workers International Union , AFL-CIO
Carl S. Ham , Inc. and Oil, Chemical and Atomic
Workers International Union , AFL-CIO, Peti-
tioner. Cases 16-CA-2813 and 16-RC-4379
April 11, 1968
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On November 29, 1967, Trial Examiner Welling-
ton A. Gillis issued his Decision in the above-enti-
tled consolidated proceeding, finding that the
Respondent had engaged in and was engaging in
certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also found that the Respondent had not
engaged in other unfair labor practices alleged in
the complaint, and recommended that such allega-
tions of the complaint be dismissed. The Trial Ex-
aminer also found merit in certain objections to the
election conducted on September 21, 1966, and
recommended the election be set aside and a new
election be directed. Thereafter, the General Coun-
sel filed exceptions to the Trial Examiner's Deci-
sion, and a supporting brief, and the Respondent
filed cross-exceptions to the Trial Examiner's Deci-
sion, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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
Trial Examiner's Decision, the exceptions, cross-ex-
ceptions and briefs, and the entire record in the
case, and hereby adopts the findings,' conclusions,
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
170 NLRB No. 143
LABOR RELATIONS BOARD
orders that Respondent, .Carl S. Ham, Inc., An-
drews, Texas, its officers, agents , successors, and
assigns, shall take the action set forth in-the Trial
Examiner's Recommended Order.
IT IS FURTHER ORDERED that the election held on
September 21, 1966, in Case 16-RC-4379, be, and
it hereby is, set aside , and that such proceedings be,
and they hereby are, remanded to the Regional
Director for Region 16 for the purpose of conduct-
ing a new election at such time as he deems circum-
stances permit the free choice of a bargaining
representative.
[Text of Direction of Second Election2 omitted
from publication.]
' In agreeing with the Trial Examiner's dismissal of the 8 ( a)(3) allegation
of the complaint, we do not rely on the portion of his rationale respecting
the purported reason for Ham's union motivation.
2 An election eligibility list, containing the names and addresses of all the
eligible voters , must be filed by the Employer with the Regional Director
for Region 16 within 7 days after the date of issuance of the Notice of
Second Election by the Regional Director . The Regional Director shall
make the list available to all parties to the election . No extension of time to
file this list shall be granted by the Regional Director except in extraordina-
ry circumstances. Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections are filed. Excel-
sior Underwear Inc , 156 NLRB 1236.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Trial Examiner: Upon a
charge and an amended charge filed on October 6
and December 14, 1966,1 respectively, by Oil,
Chemical and Atomic Workers International
Union, AFL-CIO, hereinafter referred to as the
Union or the Petitioner, the General Counsel for
the National Labor Relations Board, hereinafter
referred to as the Board, issued a complaint and an
amended complaint on November 30, 1966, and
January 26, 1967, respectively, against Carl S.
Ham, Inc., hereinafter referred to as the Respon-
dent or the Employer, alleging violations of Sec-
tions 8(a)(1) and (3) and 2(6) and (7) of the Na-
tional Labor Relations Act, as amended (61 Stat.
136), hereinafter referred to as the Act. Timely an-
swers to the complaints were filed on December 7,
1966, and February 3, 1967, wherein the Respon-
dent denied the commission of any unfair labor
practices.
In Case 16-RC-4379, based upon a representa-
tion petition filed by the Petitioner on July 25, and
pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional
Director on September 6, an election was held on
September 21 among certain employees employed
' Unless otherwise specified , all dates refer to the year 1966
CARL S. HAM, INC. 1311
at its Andrews, Texas, operations.` Thereafter, on
September 27, the petitioning Union filed timely
objections to the Conduct of the Election and to
the Conduct Affecting the Results of the Election,
and subsequently, on December 15, the Regional
Director, after having conducted an investigation of
the objections, issued a Report on Objections and
Order Directing Hearing.
Simultaneous with the issuance of this Report on
Objections, the Regional Director issued an Order
Consolidating Cases and Notice of Hearing in
which it was ordered that Case 16-CA-2813 and
Case 16-RC-4397 be consolidated for the purpose
of hearing, ruling, and decision by a Trial Examiner.;
Pursuant to notice, a hearing on the amended
complaint in Case 16-CA-2813, as further
amended at the hearing,' and on the representation
matters alluded to above in Case 16-RC-4379, was
held in Odessa, Texas, at which all parties were
represented by Counsel, and were afforded full op-
portunity to examine and cross-examine witnesses,
to introduce evidence pertinent to the issues, and to
make oral argument. Timely briefs were sub-
sequently filed by the General Counsel and the
Respondent.
Upon the entire record in this case, and based
upon my observation of the witnesses and their
demeanor on the witness stand, and upon substan-
tial, reliable evidence "considered along with the
consistency and inherent probability of testimony"
(Universal Camera Corp. v. N.L.R.B., 340 U.S. 474,
496), I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESONDENT
Carl S. Ham, Inc., is a Texas corporation, main-
taining its office and principal place of business at
Andrews, Texas , where it is engaged in the business
of oil well servicing, providing service for such
companies as Gulf Oil, Pan American Petroleum,
Shell Oil , Mobile , and Texaco . At the hearing the
parties stipulated that during the calendar year
1966 the Respondent performed services valued in
excess of $50,000 , of which services in excess of
$50,000 were performed for companies doing busi-
ness in excess of $50 ,000 in States other than the
State of Texas. I find that the Respondent - is en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties admit, and I find, that Oil, Chemical
and Atomic Workers International Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether certain of Respondent's officials, on
September 1 and 10, 1966, engaged in interroga-
tion, threats, and promises of benefit in violation of
Section 8(a)(1) of the Act.
2. Whether Vic Tucker was refused employment
on August 18, 1966, because of his union activities.
B. The Facts
1. Background
The Respondent in this case is one of some five
or six well service companies, commonly referred
to in the trade as contractors, located side by side
within feet of each other on the Odessa Highway
just south of Andrews, Texas. These well service
contractors contract with major oil companies
throughout the area, referred to as major compa-
nies , to service oil wells which are already in
production. Contractors, in performing their day-
to-day operations at the sites of major compa-
nies, normally operate with 4-man crews working
on mobile rigs-trucks with either a derrick or a
pole mounted on them, frequently referred to as
pulling units or well service units. The standard
crew is comprised of an operator, a derrick man,
and two floor hands. Perhaps an unfortunate
characteristic of the industry is the constant and
frequent labor turnover and interchange of em-
ployees among the well service and drilling compa-
nies . They all draw from the same labor supply in
2 The tally of ballots issued by the Regional Director for Region 16
reveals that neither the Petitioner nor the Intervening Union received a
majority of the votes in the unit comprised of all employees engaged in
operating and maintenance of oil well servicing and oil field service
trucking, excluding office clerical employees , professional employees,
technical employees , operators, truck pushers, shop foremen , guards and
supervisors as defined in the Act
a The Petitioner 's objections , in toto, allege "That prior to said election
the employer through its agents, officers and representatives engaged in
unfair labor practices by acts of interference and intimidation in that em-
ployees were threatened with discharge in the event that they voted to elect
a Union as their bargaining representative and that at least one employee
was discharged because of his interest in the Union , all of which conduct
interfered with and restrained the employees in their free choice of a bar-
gaining representative ." These election objections are predicated upon the
same alleged unlawful conduct as the Section 8(a)(1) and (3) unfair labor
practice allegations which are set forth with specificity in the complaint.
During the course of the hearing, on separate motions of the General
Counsel, the complaint was amended (1) to reflect the filing and service of
an amended charge, ( 2) to incorporate additional commerce data with
respect to the Respondent 's business ; and (3 ) to substitute ' the date, Sep-
tember 10, for the date , August 22, in connection with alleged Section
8(a)(1) violations in paragraphs 7(a), (b), and (c). As to (3), counsel for
the Respondent argues in his brief that paragraph 7(c) of the complaint
was not amended to change the August 22 date to September 10, and,
therefore, a fatal variance exists between the pleadings and the proof,
precluding the consideration of certain testimony concerning promises of
benefits in support of paragraph 7(c) As my ruling granting the General
Counsel's motion to amend specifically included paragraph 7(c) I find the
Respondent 's contention in this regard to be without merit.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the town of Andrews, some 10,000 population, with
most workers in the area having experience in all
phases of well servicing work. An operator at one
company today may be a derrick man or floor hand
in another company the following day, and vice
versa. The record indicates that it is not uncommon
for an employee to have worked for a number of
companies a number of times through the years.
When work is slow with one contractor employees
will seek employment with another down the block.
Although in part dependent upon the size of the
contractor, generally speaking the basic responsi-
bility for amassing a crew at any given time is that
of the operator of the pulling unit, who, when in
-need of a crew member, frequently hunts for him in
the local cafes and pool halls.
The Respondent's operation, a small one, is
owned and operated by its president, Carl S. Ham.
Under its general manager, Jessie Hyatt, who was
promoted to this position on September 1,' there is
a truck pusher and two "pulling unit pushers," one
of whom is Buddy Ham, son of the owner. The
pushers control the day-to-day operations and ac-
tivity of the pulling unit operators who have the
authority to hire and fire their crew members, sub-
ject to ultimate authority above.'
2. The alleged Section 8(a)(1) conduct
Toward the latter part of May the Union moved
its organizational drive into the Andrews area,
holding weekly meetings at public halls with em-
ployees of the several well service companies, in-
cluding the Respondent, in attendance. At such
meetings, which continued on through the summer
months, union authorization cards were signed and
leaflets and bumper stickers were distributed. In
this context, the General Counsel elicited testimony
of several witnesses in support of its assertion that
the Respondent engaged in threats, interrogation,
and promises of benefit on September 1 and 10.
Jimmy Thompson, a former truckdriver who
worked for the Respondent for about 6 weeks dur-
ing late August and September, testified that 3
weeks before the September 21 election, a date
which I find to have been September 1, he over-
heard Manager Jessie Hyatt talking with{ pulling
unit operator James Romine in the company office.
During this conversation , according to Thompson,
he overheard Hyatt ask Romine if any of his hands
were talking for or against the Union. When
Romine replied that he did not know, Hyatt told
him to find out, and if there were any that were
talking for the Union, to get rid of them. Thompson
subsequently changed his testimony in this regard
to, "just make it rough enough on them to make
them quit."
Hyatt, when questioned on this, vehemently de-
nied asking Romine to find out or telling him to get
rid of anyone, but admitted that he asked Romine if
he had heard his men discussing the Union and if
he knew how they felt about the election, to which
Romine replied that he had not heard them say,
that a couple of them talked like they wanted the
Union and one was talking the other way. Romine,
corroborating Hyatt, denied having been instructed
by Hyatt to find out how his crew was going to
vote, and testified that on the only occasion that he
recalled talking with Hyatt about the Union, Hyatt
said, "Say, James, how many hands you reckon you
got that will vote for the Union," to which he
replied that he did not know. Ferris "Fuzzy"
Leavelle, the Respondent's dispatcher, who was
also present during part of this brief conversation
between Hyatt and Romine, testified, that he re-
membered only hearing.Hyatt asking Romine if he
knew whether any of his crew was union or not.
Leavelle, who admittedly did not hear the whole
conversation, testified that he did not hear Hyatt
say anything about getting rid of union adherents.
As to this conversation, first, I credit the
testimony of Hyatt, Romine, and Leavelle over the
uncorroborated and revised testimony of Thomp-
son, and find that Hyatt made no such request of
Romine. Secondly, as to Hyatt's inquiry and
Romine's reply concerning union discussion and
sentiments among his hands, in view of Thompson's
own testimony that he "overheard" this conversa-
tion, and, with no evidence indicating that Thomp-
son was a part of the conversation or that Hyatt or
Romine were even aware of his presence, it must be
assumed that this was merely union talk between
supervisors. As such, while it is evidence of em-
ployer interest in union activity among employees,
an interest which an employer is rightfully entitled
to have and to discuss with its supervision, it is not
evidence of restraint or coercion within the meaning
of the Act.
Thompson further testified that about a week
later, on a date I find to have been September 10,
while in the office at 6:30 p.m., Hyatt asked him
what he thought about the Union. Thompson
replied that he thought that the Union was all right
if it were run right, that he had worked for the
Union for the last 6 or 7 years, and that the Union
was like anything else, it had its good and its bad
points just like the Company. Hyatt then said that
he would rather the men pay him $3 a month and
let him be their representative than to pay it to
some board that you would never get it back from.
At this point, according to Thompson, Hyatt said
"that this little book that he was holding at the time
told him-said that he was to ask around and see
how all of the employees felt about the Union."
s Although there appears to have been a dispute by the Union as to the
status of pulling unit operators , it was conceded by the General Counsel
and the Respondent that the operators , who were excluded from the bar-
gaining unit in the representation proceeding, are supervisors within the
meaning of the Act
CARL S. HAM, INC. 1313
Hyatt was not questioned concerning the latter
part of this conversation, and, in reply to whether
he asked Thompson what he thought about the
Union, testified that shortly after Thompson went
to work for the Respondent, he asked Thompson
"if he had discussed anything about the Union and
knew that we were having a union election."
Thompson replied that he had heard the men talk-
ing. Hyatt could not recall who initiated the sub-
ject, but that Thompson told him that he worked
for the Union in the potash mines in New Mexico.
When Hyatt then asked Thomspon if "they (the
mines) were Union," and received an affirmative
reply, Hyatt asked Thompson "how he liked them,"
to which Thompson replied that they have their
good points and their bad points.'
Notwithstanding that Hyatt was not questioned
on Thompson's entire version of this incident and,
therefore, that a portion of Thompson's testimony
stands unrefuted in view of Hyatt's credible denial
of a similar inquiry of Romine, above, coupled with
a question generally as to Thompson's veracity, I
find Hyatt's version to reflect the true fact of the in-
cident. I also find, however, that Hyatt's question-
ing of Thompson on this occasion concerning his
interest in the Union and how he felt about unions
without valid justification for doing so constitutes
unlawful interrogation within the meaning of Sec-
tion 8(a)(1) of the Act.
In support of the complaint allegation that Carl
Ham, on September 10 in a speech at Nix's cafe,
unlawfully threatened his employees, the General
Counsel produced a former employee, William
Rogers , who testified that at a 30-minute breakfast
meeting called by the Company on a date I find to
have been September 10, and attended by some 30
pulling unit hands, truckdrivers, operators, and
pushers of the Respondent, Ham, during a speech
after breakfast, stated that he and his brother had
helped, organize a union and that he did not see
where the Union could help the employees, that the
major companies could buy their own rigs much
cheaper than they could work contractors, and that
they would have no use for contractors' rigs.
Rogers testified that this was all that was said by
Ham.7
Ham testified that the holding of such meetings
every month or so is a routine practice. In
acknowledging the September 10 meeting, Ham de-
nied that he made the statement attributed to him
by Rogers, but testified as follows as to what he did
say:
I said that if we were unionized, that
probably our relations might not continue as
they are now. That in bargaining for a contract
that surely the Union has some preferences as
to how we are going to work, so that if they de-
mand us to pay our men more wages, then, we
are going to have to get it from our customer
because we are operating at a loss now. So I
can't raise your pay until I get it from the com-
panies.... I want you to remember that we
have got an election coming up and I want
every eligible man to vote and we will provide
the means for you to do it.
Ham further testified that at one of the meetings:
I told them that there would be a ballot and
that I had hoped to get a copy, but I didn't
have one. There would be three check places;
one would be for the OCAW; one would be for
the Operating Engineers and, one would be for
no union. Just to recognize what they wanted
to do and that their vote was secret ballot, re-
gardless of what they might have said , if it fits
your purpose to be pro-union or anti-union,
well, do as you, want to do, but remember to
vote. There's no person that can tell you how
you voted, so you have a free choice to vote
the way you want to.
In answer to counsel's question of whether he told
the employees that the Company did not need a
union, Ham admitted that he probably did, that he
"probably said things that implied that we didn't
need a union because I still don't think we do."
Finally, in reply to the further question concerning
his reference to an increase in- wages, Ham testified
that, as it had been common knowledge among his
employees that for the past couple of years the
Company had been negotiating with the major
companies to get an increase in the price of its ser-
vices, he reminded the employees again of this, and
told them that he was still attempting to accomplish
this. Ham told them that the Company could not
raise the wages of the employees until it received a
raise from its customers, that when the Company
got an increase in its services, it would pass it on to
the employees as it always had in the past.
Although nowhere attributed to him, Ham volun-
teered that he may have added, "whether we have a
union or not," as "that would have been my
philosophy."
As against Roger's uncorroborated testimony,
some 10 witnesses for the Respondent testified that
they heard no statement by Ham at either of the
meetings suggesting that a union victory would
result in the major companies buying their own rigs
thereby depriving Ham of its customers. Generally
corroborative of Ham, several witnesses testified
that Ham told the employees that "we could vote
like we wanted to," and that "he would like each
individual to vote as he pleased, but he personally
didn't think we needed a union. If they wanted a
union and they thought they could help in some
way, we would try to live with whatever it was." I
find Ham to have been a most honest witness, who,
although admittedly personally opposed to the
6 Dispatcher Leavelle, who, according to Thompson, was also present
during this conversation, was not questioned about the matter.
' Rogers testified that a second such breakfast was held "about two days
before the election," at which Ham made the same statement.
350-999 0 - 71 - 84
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, apprised his employees of their right to vote
for or against the Union. I credit his- testimony and
that which' supports it, including his denial of the
statements attributed to him by Rogers, and find,
further, that his statements to his employees as set
forth in his own testimony contain no threat of
reprisal or promise of benefit, and that they fall
within the protection afforded by Section 8(c) of
the Act.
Leo Thornley, a former employee on Romine's
crew, testified that some 2 or 3 weeks before the
election, while driving one morning to the well site
in the pickup, in the presence of two other crew
members, Gary Reamy - and Johnny Tompson,
Romine, during a general conversation concerning
the Union, asked him how he was going to vote and
what he thought about the Union. After Thornley
replied that he was undecided but thought that the
Union was a good deal, Romine said that if the
Company did not go Union "we would probably get
a 20- to 25-cent raise in wages an hour and ... for
us to keep it under our hat because he got it from a
higher man." Romine also said that "if Carl Ham
went union, we wouldn't get a raise," and later, that
"if Carl Ham went union that Pan American would
probably cut us off... that was what happened to
Vincent. "s
Generally corroborative of Thornley, particularly
as to a promise of a raise if the Union did not come
in, is the testimony of Johnny Tompson who also
testified that Romine told them that if the Union
came in "we wouldn't get to work out there on the
Midland Farms ... that it would be 7 months or
longer before we would get a raise and we would
work 8 hours a day and have to pay our union
dues." Tompson further testified that Romine said
that if the Union came in the Williamson Well Ser-
vice Company would get all the work on the
Midland Farms lease. According to Tompson,
Romine also asked him if he were going to vote for
the Union.
Romine, when confronted with the statements at-
tributed to him by Thornley and Tompson, testified
that he did not remember making them. Romine
did, however, admit that the Union and the upcom-
ing election were discussed quite a bit by his crew
while riding to and from the well sites in the pickup
truck, and that, on occasion, his crew members
would volunteer how they felt about the Union, to
which he would ask, "how are you going to vote, or
something like that." Although Gary Reamy, ini-
tially named by Thornley as being present during
the making of these statements, testified on behalf
of the Respondent that at no time did he hear
Romine question anybody about how he- was going
to vote in the election or engage in any union con-
versation with any of the crew members, the record
reveals that Reamy did not go to work for the
Respondent until September 13, after the date on
which this took place. Douglas Barron, who also
testified on behalf of the Respondent on this
matter, left the Respondent's employ, on September
8, and therefore, like Reamy, was not on Romine's
crew on September 10, the crucial date. Ac-
cordingly, neither was in a position to have heard
or not to have heard any discussion between
Romine and his crew on September 10. Don
French, the third man on the crew on this date, was
not called as a witness.
Based upon the credible testimony of Thornley10
and Johnny Tompson, who should not be confused
with witness Jimmy Thompson, and the admissions
of Romine and the fact that he did not outright
deny the statements attributed to -him, I find, that
operator Romine's questioning of, and statements
made to, his crew on these occasions on September
10 constitute restraint and coercion within the
meaning of the Act. Thus, (a) Romine's asking
Thornley and Tompson how they were going to
vote clearly is violative of their Section 7 rights; (b)
his statement to the effect that if the Company did
not go Union the employees would, probably get a
substantial raise, coupled with Romme's implica-
tion that this came from Hyatt or Ham, constitutes
a promise of benefit if the employees voted against
the Union; (c) Romine's statement to the effect
that if the employees were to vote the Union in
they would not get a raise is a threat of loss of
wages; and (d) under the circumstances, Romine's
reference to Pan American, Vincent, Midland
Farms, and Williamson, and the adverse effect that
a union victory would have on the. Respondent's
business, is a prediction of a loss of employment in
the event that the -Union won, all of which con-
stitute clear violations of Section 8(a)(1) of the
Act.
3. The alleged violation of Section 8(a)(3)
Vic Tucker, the sole alleged discriminatee
herein, had worked for a number of companies in
the oil fields in and around Andrews, Texas, for ap-
proximately 11 years, and had worked as an opera-
tor, a derrick man, a floor hand, and had drilled
and driven trucks as well. During the year preced-
ing June 1966, Tucker worked as an operator at
"Thornley testified that this took place on the pickup and that approxi-
mately the same statements were repeated again by Romine later at the
well site. He further testified that this occurred on a date between 14 and
21 days before the September 21 election, that it was after employee
Douglas Barron left the Respondent's employ, which was September 8, and
after employee Johnny Tompson started, which was September 10. I find
that it occurred on September 10, after the breakfast meeting.
0 Pan American , which appears to control a Midland Farms lease, is one
of the Respondent's biggest customers, and Vincent is a well service con-
tractor whose employees had recently voted in the Union.
10 In view of the continuous change in the employee composition of
Romine's crew during the immediate period in question , I do not attach ad-
verse significance to the fact that Thornley , in his affidavit; as well as ini-
tially on direct examination , stated that Barron and Reamy, respectively,
were present when Romme made the statements in issue.
CARL S. HAM, INC.
Permian, a well servicing company located two
doors down from the Respondent. In May, while so
employed, Doug Graham, an operator working for
the Respondent, offered him a job on his rig as a
floor hand or a derrick man. When Tucker refused
the offer, Graham hired Tucker's close friend, John
Mulkey, who at the time was working on Tucker's
crew at Permian. Tucker was subsequently
discharged at Permian on June 21. Shortly
thereafter, around the first of July, Tucker went to
work for his father-in-law at Williamson Well Ser-
vice, another contractor located between Permian
and Carl S. Ham, Inc.
During this period Tucker was among those ac-
tive on behalf of the Union. He attended all but one
of the weekly meetings, generally in the Company
of his friend, Mulkey. While still an employee at
Permian, Tucker signed up some 19 or 20 of Permi-
an's employees. He later obtained signed authoriza-
tion cards from employees of other companies, in-
cluding two or three in July from employees of the
Respondent. These cards, signed in Tucker's
presence, were - turned over to James Childs, the
Union's International representative. Tucker, dur-
ing this period, passed out union leaflets and au-
tomobile bumper stickers at the homes of the men
who signed up. He also placed as many as five of
the stickers on his own automobile.
Vic Tucker was working on a rig at Williamson
when, on Wednesday, August 17, about 7 p.m.,
Mulkey, who shortly before had replaced Graham
as operator on one of the Respondent's crews,
talked with Tucker at the latter's house concerning
his going to work for him at the Respondent. Ac-
cording to Tucker, Mulkey said that he needed a
hand the next day,and asked Tucker if he wanted to
work for him as his derrick man. Tucker replied
that he would, but that he could not leave his
operator short, that he would give his operator
notice the next day and would be ready to work for
Mulkey Friday morning. Mulkey allegedly replied,
"All right, IT pick you up day after tomorrow
morning. "11
Mulkey, who at the time of the hearing was no
longer an operator, but rather, a truckdriver, re-
called little of this particular conversation. He
testified, however, that he had planned to have
Tucker go to work for him but had put it off until
after a second or third request by Tucker to hire
him when he finally spoke to pusher Buddy Ham
about it.12 Thus, on the following morning,
" Jimmy Owen, a Williamson employee who was present in Tucker's
house on this occasion , testified that Mulkey told him that he had hired a
good derrick hand, Vic Tucker. Owen, in partial corroboration of Tucker,
further testified that he heard Tucker tell Mulkey that he would not leave
his operator shorthanded, but would let him know the next night "that he
would be ready to go to work, when he would definitely be ready to go to
work."
12 Although normally Mulkey, like other operators, would have hired
without consultation with his superior, Mulkey testified that on this occa-
sion he talked with Buddy Ham because he and Tucker had agreed that, in
view of Tucker's known reputation for becoming involved in fights, "it
1315
Thursday, Mulkey asked Buddy Ham if he could
hire Tucker. When Ham replied, "No, I guess we
had better not," Mulkey did not pursue the matter,
and nothing else was said.13
That evening at the home of Floyd Mulkey,
John's brother with whom he lived, and in the
presence of a number of employees and their fami-
lies who had congregated, a not infrequent-happen-
ing at Floyd's house, a brief conversation took
place between Tucker and John Mulkey when the
latter arrived about 7 p.m. According to Tucker, on
direct examination, Tucker started the conversation
by stating that he had given notice at Williamson
and would be ready in the morning, to which Mul-
key replied, "Well, I can't take you now." When
Tucker asked why, Mulkey replied that "Buddy
Ham won 't let me." In answer to Tucker's further
query, Mulkey allegedly said , "Well, you know
what it is; it's on account of this Union activity, on
account of this Union deal." On cross- examination,
however, after correcting and repudiating portions
of his pretrial affidavit, Tucker testified that Mul-
key's statement to him was, "That's probably the
reason they won't hire you." Mulkey, on direct ex-
amination , testified that, when Tucker, who had
become irritated, asked why, Mulkey told him that
he did not know, that "they just told me that I
couldn't hire you." On cross-examination , however,
Mulkey agreed that it was possible that he told
Tucker that it probably was because of the union
deal.14 In explanation of his having ventured the
union factor as his opinion for the denial, Mulkey
testified, and credibly so, that at no time did "they"
give him any reason to believe that they did not
want him to hire Tucker because of the Union, but
that, in deference-to Tucker's sensitivity regarding
his reputation for fighting and his complex because
of the feeling that the people of Andrews had
toward him on account of it, a matter which had
been the subject of a number of friendly conversa-
tions between Mulkey and Tucker, he may have at-
tempted to placate Tucker at this time by alluding
to the Union.
The following day, Charles Massey, who had
been in attendance the night before, asked Mulkey
if he needed a man . Mulkey replied that he had
planned on letting Mr. Ham have his rig back, but
that if Massey would work the derrick for him he
would keep it. The following morning, Saturday,
Massey went to work on Mulkey 's pulling unit.
would probably be a good idea to check before I hired him because they
might not want him to work down there " For reasons pertaining to
Tucker's reputation, hereinafter discussed , I credit Mulkey 's testimony in'
this regard.
ca Buddy Ham credibly corroborated Mulkey's testimony in this regard,
adding only that he also said that "he had just too bad a reputation."
14 That Mulkey in fact told Tucker on this occasion that "he thought"
that it was because of the Union is home out by the testimony of General
Counsel's witnesses Jimmy Owen, former employee John Hutto, and Floyd
Mulkey
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ANALYSIS AND CONCLUSIONS
The General Counsel contends that Tucker was
hired by Mulkey on August 17, and was discharged
the following day before starting work for reasons
relating to his activities on behalf of the Union.' The
Respondent asserts , in effect, that, whether or not
there technically was a hiring, its refusal to permit
Tucker- to go to work was in no way based upon
union considerations, but rather, was predicated
solely upon Tucker's general reputation for engag-
ing in fights, a reputation which had given rise to a
company rule against hiring Vic Tucker long before
the instant matter occurred.
In support of the General Counsel's position of
discriminatory motivation on the part of the
Respondent, it is not controverted that Vic Tucker
was, during the summer months, actively engaged
in assisting the Union's organizational campaign
among the well service employees in the Andrews
area. Nor do I find, notwithstanding denials by Carl
Ham and Manager Hyatt, that Tucker's union senti-
ments were unknown to the Company. While some
of Tucker's activity in this regard may have been
confined to the homes of employees, the fact
remains that, in addition to displaying a con-
spicuous number of orange and black bumper
stickers on his automobile, the union meetings
which Tucker took part in were also well attended
by supervisor operators, including several who at
the time were employed as such by the Respon-
dent.15 The unusual relationship here between
operators and employee crew members is addi-
tionally demonstrated by the fact that, during July,
when Tucker was looking for other employees to
sign up, he sought the assistance of Respondent's
operator Gene Beech in locating employee mem-
bers of Beech's crew, and proceeded, in the com-
pany of Beech, to the homes of his crewmen where
Tucker succeeded in procuring their signatures on
union authorization cards. Thus, in a town the size
of Andrews, where one's reputation for fighting
became as well known as did Tucker's, it is difficult
to believe that Tucker 's union sentiments were not
also known to most people, including officials of
the Respondent. I so find." These facts, plus the
additional disclosure that Tucker was an able, ex-
perienced, and well-qualified hand, when applied to
the August 17 and 18 factual situation recited
above, including Mulkey's need for a hand on his
15 In addition to Respondent operators Gene Beech and Doug Graham,
Tucker, himself, went to the meetings with his operator friend , John Mul-
key.
16 Further support for this finding may be found in the unrefuted
testimony of Tucker to the effect that , during a conversation with Hyatt in
late June, Tucker told Hyatt that he had worked for the Union for quite
awhile and thought that it was a pretty -good thing.
17 There is a note of inconsistency with respect to the view Tucker held
as to his own reputation . Mulkey testified that 9 out of 10 fights were
started by someone wanting to win Tucker's reputation, and that Tucker
worried over his reputation , the fact that people snubbed him because of it;
that people who did not even know him talked about him. Yet, Tucker him-
crew at the time, militates in favor of drawing an in-
ference of discriminatory motivation on the part of
the Respondent.
Against such an inference, however, are certain
facts established by the Respondent in defense of
its assertion that union activity played no part in
the decision by which Tucker was denied employ-
ment with Carl S. Ham, Inc. Without attempting to
justify or excuse the fact, it is well established on
the record that Vic Tucker, from the time .he was a
boy, was one to find himself engaged in fighting
with others. His reputation as a fighter appears to
have been well known as well as well founded, and,_
unfortunately perhaps, had developed to the point
where others with a propensity for becoming em-
broiled in a brawl were continually ready to chal-
lenge him.17 As Tucker himself put it, someone
used to try him every time he went to town. Nor
does it appear that Tucker's fights were of a minor
scrap variety, since several resulted in arrests, and
charges being filed against him, including ag-
gravated assault on a deputy sheriff committed
while in the process of being arrested on other as-
sault charges.
It was as a result of one such fight, occurring
some 12 to 18 months prior-to-the refusal-to-em-
ploy matter involved herein, that Tucker's fighting
propensity and bad reputation in this regard came
to the attention of Carl Ham. On this occasion,
Tucker administered such a beating to one Kenneth
Thompson that he was removed to the hospital un-
conscious, in which state he remained for some
time. As Thompon was the husband of Ham's
private secretary and office manager at the time,
Ham became aware of the matter during the 2-
week convalescent period Thompson remained in
the hospital. Because of this, and particularly the
vicious manner in which _ Tucker left his victim,
Ham, in consultation with Hyatt, decided then that
Tucker would never go to work for his Company."'
This rule promulgated by Ham, however, was not
made known to other supervisory personnel until a
later time, when, after hearing two or three addi-
tional instances where others had been badly
beaten as the result of fights with Tucker, Ham so
apprised his pushers.19 At some point thereafter, ac-
cording to the uncontradicted testimony of Hyatt,
as a result of a sheriff's report that Tucker had
knifed one Joe Lyles, the teenage son of a super-
visor at Pan American, Respondent's largest
self, while on the stand , in a sense bent upon playing down his fighting
record but ready to substantiate its existence , seemed somewhat proud that
he had not lost a fight since he was 17, and admitted that he was pretty
good.
18 Although Tucker had worked briefly for the Company some 5 or 6
years earlier, Ham did not remember Tucker, and was not aware of this
until some time later when it was brought to his attention by his son.
19 According to Ham, who admitted that , like others , perhaps he was
afraid of Tucker , he was alarmed over the condition in which , Tucker left
his opponents , relying in part upon one report from a sheriff that "he beat
this man completely senseless and then took his fingers and yanked his
mouth apart and tore it."
CARL S. HAM, INC. 1317
customer, the company rule against the employ-
ment of -Tucker was, after further discussion,
passed on to the unit supervisors.20
This, then, was the situation as it existed when,
on the morning of August 18, Mulkey went to his
pusher, Buddy Ham, and, in reply to his request for
approval to hire Tucker, was told "we had better
not," that "he had just too bad a reputation."
Buddy Ham alone was responsible for enforcing the
rule against employing Tucker, although several
days later Carl Ham was given an opportunity to
reconsider the rule when Mulkey, on behalf of his
friend, Tucker, went to see him?' On this occasion,
according to the uncontroverted testimony of Ham,
Mulkey, visibly disturbed about the matter, told
him of having approached his son, Buddy, about
hiring Tucker, and then asked him if he could put
Tucker to work. Holding Mulkey's request in
abeyance, Ham gave the matter additional thought
with the idea of reconsidering the rule against
Tucker, and subsequently discussed the matter with
the sheriff, with whom he had had a similar talk at
least a year earlier. After talking with the sheriff,
however, Ham decided it best to let the rule stand,
which put an end to the matter.
Contrary to the position taken by the General
Counsel, who does not dispute the existence of the
company rule against employing Tucker but does
question its reasonableness, I am of the opinion that
there existed ample basis for imposing such a rule.
Regardless of whether Vic Tucker, at this stage of
the game, is entirely responsible for his conduct or,
more specifically, for initiating fights, the fact
remains that he has a reputation which appears to
be subject to constant challenge. To say that an em-
ployer whose employees, in the course of their daily
routine, work closely together and come into con-
tact with the employees of the employer's
customers is unreasonable in desiring not to employ
such a person is, in my opinion, to lack good
judgment 22 In any event, it is not for me, the Trial
Examiner, to say that the rule was or was not
reasonable, for the real question is whether the
rule, reasonable or otherwise, was enforced for the
purpose, in whole or in part, of hiding a discrimina-
tory motivation with respect to Tucker. In this
respect, while the record is clear that Carl Ham
personally was opposed to the Union, I find on the
record as a whole, that his opposition was based
solely on his true conviction that the Union would
have been of no help to his employees, and not on a
deep-rooted hostility toward the Union which
frequently is associated with an employer's union
animus . While it is true that the Respondent's
manager, on one occasion, and its minor supervisor
on another, engaged in conduct I have found to vio-
late the Act and requiring that the election be set
aside, I do not feel that this, in itself, warrants the
necessary adverse inference with respect to the en-
forcement of the rule against Tucker. Furthermore,
before Carl Ham knew anything about Mulkey's
desire to hire Tucker, Buddy Ham alone decided
not to employ him, and did so on the spot without
prior knowledge that Mulkey was to approach him
for his permission.'
I find on the record as a whole that the General
Counsel has not proved by a preponderance of the
credible evidence that Vic Tucker was refused em-
ployment on August 18, 1966, or thereafter, for
reasons relating to his union activity. Accordingly, I
find that the Respondent did not violate Section
8(a)(3) of the, Act as alleged in the complaint.
IV. OBJECTIONS TO CONDUCT AFFECTING THE
ELECTION
As set forth above, the objections to the election
filed by the petitioning union subsequent to the
holding of the election involved conduct which has
been considered above in connection with the un-
fair labor practice allegations of the complaint.
Although having found that the Company's refusal
to employ Vic Tucker on August 18 was not viola-
tive of Section 8(a)(3) of the Act, and that the sub-
stance of President Ham's breakfast speeches to his
employees in September falls within the permissive
bounds of Section 8(c) of the Act, and therefore,
that neither supports the Petitioner's assertion with
respect to objectionable election conduct, I have
found that the Company, through General Manager
Hyatt and Supervisor Romine engaged in the
restraint and coercion of its employees on Sep-
tember 1 and 10 in violation of Section 8(a)(1) of
the Act. As such conduct interferes with the exer-
cise of a free and untrammeled choice by its em-
ployees in an election, I find merit to the objections
upon which it is based.24 Accordingly, I recommend
that the results of the election held on September
21, 1966, in Case 16-RC-4379, be set aside and
that the proceeding be remanded to the Regional
Director for the purpose of conducting.a new elec-
tion at such time as he deems that circumstances
will permit the free choice of a collective-bargain-
20 Although Tucker denied that he knifed young Lyles, he admitted that
he had been accused of it.
21 That Mulkey, although aware that Tucker's reputation might have
precluded his hiring, did not know of the company rule is not necessarily
surprising , for at the time that the rule was made known to the lesser super-
visory hierarchy, Mulkey was not a unit supervisor, in fact, was not even
employed by the Respondent.
22 See Loff(and Brothers Company, 165 NLRB 195, where, in a situation
arising in the same oil fields here involved and relating to an alleged dis-
criminates whose reputation had been damaged because of publicity con-
cerning bad check and arson charges, the Board, in refusing to find a pre-
text , held it "altogether understandable why the Respondent.. would not
want to initiate an employer-employee relationship with one of Thornton's
reported character."
2' Buddy Ham, who, during his very brief stay on the witness stand,
testified in a most forthright manner, was in no way charged with conduct
or statements reflecting antiunion views.
14 To the extent that the Petitioner 's objections are predicated upon con-
duct other than that found herein to constitute unlawful conduct in the
complaint case, they are found to lack merit.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing representative by the employees' of Carl S.
Ham, Inc.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec=
tion III, above, occurring in connection with the
Respondent's operations described in section I,
above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow of commerce.
VL THE REMEDY
It having been found that the Respondent has en-
gaged in unfair labor practices in violation of Sec-
tion 8(a)(1) of the Act, it is recommended that it
cease and desist therefrom and that it take certain
affirmative action which is necessary to effectuate
the policies of the Act.
CONCLUSIONS OF LAW
1. Carl S. Ham, Inc., is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. Oil, Chemical and Atomic Workers Interna-
tional Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
its employees in the exercise of the rights guaran-
teed by Section 7 of the Act, the Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law,2S and upon the entire
record in this case, it is recommended that Carl S.
Ham, Inc ., its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees with
respect to their union membership and sympathies
and as to how they are going to vote in an election;
threatening them with the loss of employment and
with the loss of a wage increase if they vote for the
Union as their bargaining representative; and
promising them an increase in wages if they vote
e Union.against th
(b) In any like or related manner interfering
with its employees in the exercise of their right to
self-organization, or coercing its employees in the
exercise of their right to self-organization, 'to form,
join, or assist the above-named union, or any other
labor organization, to bargain collectively through
representatives of their own choosing and to engage
in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
2. Take the following affirmative action, which
will effectuate the policies of the Act:
(a) Post at its Andrews; Texas, operation copies
of the attached notice marked "Appendix."" Co-
pies of said notice, on forms provided by the Re-
gional Director for Region 16, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, -in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other -material.
(b) Notify the Regional Director for Region 16,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith."'
IT IS FURTHER RECOMMENDED' that the election
conducted on September 21, 1966, in Case
16-RC-4379 be set aside and that the- case be re-
manded to the Regional Director of Region 16 for
the purpose of conducting a new election at such
time as he deems that circumstances permit the,
free choice of a collective-bargaining representa-
tive.
IT IS FURTHER RECOMMENDED that the complaint
herein be dismissed insofar as it alleges illegal dis-
crimination in employment with respect to Vic
Tucker or conduct violative of Section &(a)(1) of
the Act, other than as above found.
1S With respect to the Respondent's proposed findings, set forth in'its
brief, they are hereby adopted to the extent that they are consistent with
those specifically made herein.
' In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
Q'' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
CARL S.
WE WILL NOT coercively interrogate our em-
ployees with respect to their union member-
ship and sympathies and as to how they are
going to vote in an election.
WE WILL NGr threaten our employees with
the loss of employment or with the loss of a
wage increase if they vote for the Union as
their bargaining representative.
WE WILL NOT promise our employees an in-
crease in wages if they vote against the Union
as their bargaining representative.
WE WILL NOT in any like or related manner,
interfere with, restrain , or coerce our em-
ployees in the exercise of their right to self-or-
ganization , to form , join , or assist Oil, Chemi-
cal and Atomic Workers International Union,
AFL-CIO, or any other labor organization, to
bargain collectively through representatives of
their own choosing and to engage in other con-
certed activities for the purpose of collective
bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
HAM, INC. 1319
All our employees are free to become or remain, or
to refrain from becoming or remaining , members of
Oil, Chemical and Atomic Workers International
Union , AFL-CIO, or any other labor organization.
CARL S. HAM, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 8A24 Federal Office Building, 819 Taylor
Street, Fort Worth, Texas 76102, Telephone
334-2921.