Cherokee Pipe Line Co.

National Labor Relations Board - Board Decisions

Mar 20, 1973

202 N.L.R.B. 560 (N.L.R.B. 1973)

560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cherokee Pipe Line Company and Craig Deering.
Case 14-CA-6891
March 20, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On January 18, 1973, Administrative Law Judge
Sydney S. Asher issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rplings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Cherokee Pipe
Line Company, Hartford, Illinois, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
SYDNEY S. ASHER, Administrative Law Judge: On June
5, 1972, Craig Deering, an individual, filed charges against
Cherokee Pipe Line Company, herein called the Respon-
dent, Hartford , Illinois. Based on these charges, the
General Counsel of the National Labor Relations Board,
herein called the General Counsel, on July 24, 1972, issued
a complaint alleging that since on or about December 6,
1971, the Respondent has interfered with, restrained, and
coerced its employees in certain specified respects, and that
the Respondent discharged Craig Deering, an employee,
on or about May 31, 1972, and since then has refused to
reinstate him, because he joined or assisted Oil, Chemical
and Atomic Workers International Union, AFL-CIO,
herein called the Union, or engaged in activities on behalf
of the Union, or associated with other employees who
joined or assisted the Union or engaged in union activities.
It is alleged that this conduct violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended (29
1 The Respondent is, and at all material times has been, an Illinois
corporation engaged in the nonretail distribution of oil, gasoline, and
related products. During the calendar year 1971, the Respondent's volume
of business exceeded $500,000 and the Respondent derived gross revenues
U.S.C. Sec. 151, et seq. ), herein called the Act. The
Respondent filed an answer admitting that it had dis-
charged Deering but denying that it had done so for the
reasons set forth in the complaint, and denying the other
allegations of the complaint. Thereafter, on August 31,
1972, the General Counsel filed an amendment to the
complaint setting forth certain additional incidents of
alleged interference, restraint, and coercion of employees.
The Respondent filed an answer to the amendment to the
complaint, denying the additional alleged incidents of
interference, restraint, and coercion.
Upon due notice, a hearing was held before me at St.
Louis, Missouri, on various dates between September 13
and October 3, 1972, both dates inclusive. All parties were
present in person or by representative and participated
fully in the hearing. At the beginning of the hearing, the
General Counsel was permitted to amend the complaint
further by adding certain new allegations . The Respondent
then denied these further amendments . At the close of the
General Counsel's case, the Respondent moved to dismiss
certain allegations of interference, restraint, and coercion
of employees, and to dismiss the allegation that Deering
had been discriminatorily discharged. The motion was
denied so far as the discharge of Deering was concerned.
Ruling was reserved on that part of the motion which dealt
with interference, restraint, and coercion. It is now
disposed of in conformity with conclusions set forth below.
After the close of the hearing, the General Counsel and, the
Respondent filed briefs, which have been duly considered.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
A. Preliminary Matters
The complaint alleges, the Respondent admits either in
its answer or by stipulation at the hearing, and it is found,
that the Respondent is, and at all material times has been,
an employer engaged in commerce as defined in the Act,
and its operations meet the Board's jurisdictional stand-
ards.) The complaint further alleges, the answer admits,
and it is now found, that Oil, Chemical and Atomic
Workers International Union, AFL-CIO, is, and at all
material times has been, a labor organization as defined in
the Act.
B. The Relationship Between the Respondent and
Continental Pipe Line Company
What is referred to in the record as the Cherokee Pipe
Line System consists of a pipeline extending from Tulsa,
Oklahoma, to Hartford, Illinois (sometimes also referred to
herein and in the record as the East Alton, Illinois, facility,
or the Wood River Products Terminal), and the various
facilities along that pipeline. Approximately 30 employees
work in the terminals and along the line.
The Respondent is, and has been at all times since at
of more than $50,000 from the interstate transportation of gasoline, oil, and
related products . During the same year, the Respondent purchased goods
valued at more than $50,000, which were delivered to its Hartford , Illinois,
terminal directly from sources outside the State of Illinois.
202 NLRB No. 88
CHEROKEE PIPE LINE CO.
least December 1971, owned half by Continental Pipe Line
Company (a wholly owned subsidiary of Continental Oil
Company) and half by Toronto Pipe Line Company (a
wholly owned subsidiary of Gulf Oil Company). General
Facilities, Inc., is, and at all material times has been,
owned half by Gulf Oil Company and half by Continental
Oil Company. Since at least December 1971 General
Facilities, Inc., has owned all terminal facilities along the
Cherokee Pipe Line System and has leased such facilities to
Gulf Oil Company and Continental Oil Company. During
the same period of time, under an agreement between
Continental Pipe Line Company and Toronto Pipe Line
Company, the Cherokee Pipe Line System has been
operated by Continental Pipe Line Company. The entire
Cherokee Pipe Line System, including facilities along the
line, is a single closely integrated operation in which the
Respondent and Continental Pipe Line Company work in
close cooperation toward a common goal.2 The supervisors
of both collaborate regarding problems of mutual concern ,
including personnel matters relating to employees of
either.3 The rank-and-file employees of both corporations
are treated substantially the same by supervisors of either
corporation.4 In brief, I conclude that the Cherokee Pipe
Line System is, and at all material times has been, a joint
venture in which both corporations risk capital; that each
employee of either corporation engaged in the joint
venture, regardless of his nominal employer, is in fact an
employee of the joint venture; and that each supervisor
and/or agent of either corporation so engaged, regardless
of his nominal employer, is in fact an agent of the joint
venture. It follows, and I find, that each corporation (the
Respondent and Continental Pipe Line Company) is
jointly and severally liable for the conduct of the
supervisors and/or agents of either.
C. The Setting
The Respondent at one time entered into a collective-
bargaining contract with a union not identified on the
record. That contract expired in 1962. Years later-in early
1971-the Union wrote to employees of the Respondent
soliciting their signatures on authorization cards. The
Respondent countered promptly with a letter to all
employees which read, in pertinent part:
The current attempt by this Union to organize some of
the employees on the Cherokee System is of great
importalfce to each of you and your family. It is also
important to the Company in that we would prefer to
maintain our Employer/Employee relationship without
the involvement of a third party and associated
additional costs to you and the Company.
When you receive the Union Authorization Card, the
question you might have is "Should I or should I not
sign this card?" The decision is yours. You should
consider all the facts before you make that decision. If
you sign this card, the Union may use your signature
Y Shifts at the Wood River terminal have from time to time consisted of
one employee from each corporation. Referring to Wood River, David L.
Lechtenberg, a witness for the Respondent, testified: "We operated it as a
joint operation."
3 Supervisors of both corporations meet every year and jointly
561
card to try to gain representation without giving you a
chance to cast your secret ballot.
A Union cannot possibly get for you those things that
your Company, in keeping with good business prac-
tices, is unable to give-but they can make promises.
Our goal has been to work out fair and satisfactory
solutions to any problems and this is still our objective.
The record does not reveal any further organizing efforts
by the Union until November 1971. Active on the Union's
behalf thereafter were Doyle Strain, an employee at Wood
River (nominally employed by Continental Oil Company);
Kenneth C. Doty, an employee of the Respondent at the
Belle, Missouri, facility; and Joe Rowell, an individual
stationed at the Glenpool, Oklahoma, facility, whose
supervisory status will be determined hereafter. As will
appear later in more detail, officials of the Cherokee Pipe
Line System learned of Strain's union activities in the last
half of December 1971. However, knowledge of Rowell's
role in the union campaign apparently came somewhat
later. In mid-May 1972, John R. ("Jack") DeSola, then
assistant district manager of the district which included
Glenpool, Oklahoma, telephoned from his Tulsa office to
Ronald P. Suttmoeller, then supervisor of operations at
Glenpool. DeSola stated that he had learned that Rowell
had made a telephone call on the Union's behalf, and
DeSola asked Suttmoeller what he knew about it. Sutt-
moeller replied that he (Suttmoeller) thought that Rowell
had had "some contact with the Union," but that he
(Suttmoeller) did not know particulars. DeSola remarked
that he would like to know what Rowell's union activities
were. Shortly thereafter, Suttmoeller approached Rowell
while at work and said: "Jack [DeSola] wants to know
about your union activities." Rowell did not reply.
On July 11, 1972, Douglas S. Skinner, district manager of
the Respondent, addressed an interoffice communication
to "all employees-Cherokee-Arbuckle System" which
reads, in pertinent part:
It is my understanding that some of you wish to
organize a union. Frankly, I do not think you need a
union; but it is your privilege and if a sufficient number
of you desire it, I assure you that the Company and I
will attempt to negotiate a fair and equitable agreement
with your representatives.
f # k i i
We worked with a union in this district for several
years, but it was dissolved many years ago. This
indicated the employees felt that they did not need a
union. The employees and the Company seemed to
have a fair understanding of the problems and a
common ground on which we could meet in case of
problems or misunderstandings.
In all fairness to you, I want you to know that I expect
full utilization of each and every one of you at all times.
participate in evaluating the work of all rank-and-file employees of both
corporations.
4 Employees of both have substantially the same fringe benefits,
including "Conoco" employee credit cards, and in at least one terminal
share the same toilet facilities.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, I expect to be fair with you and if you do not
feel that you are being treated fair, don't come see me;
let me know and I will come see you.
It is against this backdrop that we must view the events
discussed hereafter.
D. Interference, Restraint, and Coercion
1. The first investigation at Wood River
a. The interview with Shanks
Late in December 1971, David L. Lechtenberg, em-
ployed by Continental Oil Company as terminal foreman
at Wood River, was informed by the terminal analyst,
Loraine Blackard, that Wayne Shanks, a terminal man
employed at Wood River, complained to her that Doyle
Strain , another employee at Wood River, had harassed him
(Shanks) about joining the Union, to the extent that
Shanks felt his (Shank's) working ability had been affected.
Blackard further related to Lechtenberg that Homer Smith,
a semi-skilled laborer employed at Wood River, also
complained to Blackard that Strain was "harassing" him
"on the job during working hours." Lichtenberg reported
this conversation to Wesley J. Barnett, then the Respon-
dent's supervisor of operations at Wood River. On the
same day, Barnett and Lechtenberg together talked to
Blackard, who substantially iterated to them both what she
had earlier told Lechtenberg individually. Barnett tele-
phoned the same day to Irvin Toole, Jr., then in the Tulsa
office as acting district manager for the district which
included the Wood River terminal, and related what he
(Barnett) had heard from Blackard. Toole directed Barnett
"to privately visit with some of the employees at the
terminal and see if he could determine the extent to which
this harassment was actually being carried on," and then to
report back.
In furtherance of this directive, sometime later in
December 1971, Shanks was called into the office. In
Lechtenberg's presence, Barnett questioned Shanks. Ac-
cording to Shanks' credited version:
Q. What did Mr. Barnett say to you?
A. He told me I didn't have to say anything if I
didn't want to, but he would like to know if there was
anyone trying to organize a union, and, if so, was it
having any reflection on job performance of the
employees.
Q. Laid you respond to him at all?
A. I told him that there was no one that I knew of.
Q. Did Mr. Barnett say anything further?
A. Not that I remember.
Q. Did that end the conversation?
A. I told him my feelings toward the union.
Q. Did he say anything further?
A. No.5
The complaint as amended alleges (par. 5A), and the
5 Barnett and Lechtenberg corroborated part of Shanks' version, but
they both denied that the word "union" was used by anyone. I do not credit
their denials in this regard.
6 Although Blackard had not mentioned Grover, Barnett testified that
Grover was called in because "if you wanted to know something, he would
tell you about it."
T To the extent that Barnett and Lechtenberg denied that the Union was
answer to the amended complaint denies , that between
December 17, 1971, and January 2, 1972, Barnett at East
Alton (Wood River) "interrogated an employee about the
Union's organizational activities." It has been found,
above, that Barnett summoned Shanks to the office late in
December and, in Lechtenberg's presence, asked Shanks
whether there was anyone trying to organize a union. This
interrogation was impermissible. Nor does the fact that
Shanks' nominal employer was Continental Oil Company,
rather than the Respondent, make any difference, as
Shanks was employed on the joint venture on which these
two corporations had embarked. Accordingly, it is con-
cluded that late in December 1971 Barnett illegally
interrogated Shanks concerning the protected union
activities of other employees, in violation of Section 8(a)(1)
of the Act. As the Respondent stipulated that Barnett was
then its agent, and as he was acting not only within the
scope of his general authority but more specifically under
Toole's directive "to privately visit with" employees, the
Respondent is responsible for his conduct.
b. The interview with Grover and events
immediately following
Still on the same day, Lindell R. Grover, another
terminal man employed at Wood River, was summoned to
the office where Barnett and Lechtenberg were present.6
According to Grover's version:
Barnett started off by saying we know there is a person
at this facility . . . that is instigating union talk... .
He [Barnett] told me that we have a good, flexible
relationship at this terminal without a union , and one
that could not be enjoyed with a union. He said if we
had a union, we'd be made to toe the line, that we
would not get away with what we are getting away with
now. He mentioned a mistake that I was involved in.
Mr. Barnett said had we been union at that time I
would have been fired.
Barnett then asked whether Grover had been harassed by
any employee. Grover replied that Strain had been trying
to organize a union; Barnett remarked that they knew
about Strain's activities. Barnett stated that certain
employee benefits had been derived from the union which
had represented the employees years earlier, and that he
couldn't see how it would benefit the employees to pay for
something they were getting free . Barnett further stated
"that a third party would tend to cloud the situation and
we wouldn't enjoy the working relationship that we had
between the two parties if the third party was brought in."
Barnett closed the interview with the statement: "We just
wanted to make sure that he [Strain] hadn't been harassing
me [Grover]." 7
Barnett reported to Toole by long distance telephone the
results of his conversations with Shanks and Grover. Toole
responded that Barnett should "just kind of hang tight,"
mentioned until Grover brought up the subject, and to the extent that both
denied certain remarks attributed to Barnett by Grover, described above,
(for example , the "toe the line" statement and that Grover would have been
fired for his mistake had the pipe line then been unionized ) I do not credit
their denials . It should be noticed , however, that they corroborated Grover's
testimony that Grover told them of Strain's union organizing attempt.
CHEROKEE PIPE LINE CO. 563
that Toole felt "something needed to be done," and that he
(Toole) would come to the Wood River area at some future
time, and would like to talk to Strain then. Toole discussed
the subject with Harry Miller, then the Respondent's
assistant district manager, and reported the matter by long
distance telephone to John McFadden, then manager of
personnel relations for Continental Pipe Line Company.
Toole also, late in 1971 or early in 1972, telephoned long
distance to Suttmoeller at Suttmoeller's home in Florissant,
Missouri. Toole inquired whether Suttmoeller "had heard
anything on the system about any union activities?"
Suttmoeller replied that he had not heard anything. Toole
directed Suttmoeller to "keep your ear to the ground."
The amended complaint, as further amended at the
hearing, alleges (par. 5 R, S, T, U, and BB), and the answer
to the amended complaint denies, that during the last 2
weeks in December 1971 Barnett at East Alton (Wood
River) created the impression of surveillance of employee
union activities; threatened reprisals for union activities;
interrogated an employee about the union activities of
another employee; and told an employee there was a rule
prohibiting employee discussions about the Union on the
Respondent's time or property. As shqwn above, Barnett
commenced his interview with Grover by stating that
management knew an employee at Wood River was
"instigating union talk." When Grover mentioned that
Strain had been trying to organize a union, Barnett
indicated that management already knew the employee's
identity (as indeed Barnett did, from his prior talk with
Blackard). These remarks must be viewed as suggesting
that the Respondent was keeping a watchful eye on the
union activities of its employees.8 It is accordingly found
that such statements by Barnett, addressed to an employee
of the joint venture, tended to inhibit the exercise of
protected employee rights by creating the impression of
surveillance thereby violating Section 8(a)(1) of the Act, as
alleged in paragraph 5R of the complaint. And, for the
reasons described above, the Respondent is responsible for
such actions.
In this interview, Barnett further warned that if the
employees chose to be represented by the Union they
would be made to "toe the line" and underscored this
general statement with a specific illustration: Grover in the
past had been involved in a particular mistake which, had
the Union represented the employees at that time, would
have resulted in harsher discipline to Grover than that
which he in fact experienced. Such threats are clearly
violative of the Act, as alleged in paragraph 5S and BB of
the complaint.
With respect to the allegation that in this conversation
Barnett illegally interrogated Grover about the union
activities of Strain, a fellow employee, there is some
question in my mind as to whether Barnett's testimony is
sufficient to support paragraph 5T of the complaint.
However, I deem it unnecessary to decide this as, in any
event, such a finding would merely be cumulative and
would not substantially affect the remedial order hereafter
recommended. As for the allegation that Barnett told
Grover of a no-solicitation rule, Barnett 's testimony of this
part of the conversation was not convincing9 and this
allegation (paragraph 5U of the complaint) must accord-
ingly fall.
c. The prehire interview with Shaw
In mid-December there was a vacancy for a deliveryman
at the Wood River terminal. James D. Shaw, Jr., applied
for the job. He was interviewed by Toole in Toole's Tulsa
office. According to Shaw's credited testimony, the
following occurred during the interview:
We had gone over my application, and then he [Toole]
told me that if I was accepted for this position in Wood
River, that the Cherokee Pipe Line at Wood River was
one of the few companies that wasn't union and that
the company felt that they paid the employees well
enough and treated them well enough that they didn't
necessarily need a union, and if I did go to Wood River
that I possibly may be approached by older men
concerning unions and that I shouldn't become
involved in these activities but should report it to my
supervisor immediately.10
The complaint alleges (par. 5G and H), and the answer
denies, that on or about December 15, 1971, at his Tulsa
office, Toole "directed an employee not to talk to anyone
about the Union" and "to report to the employee's
supervisor if the employee was approached about the
Union." It has been found that, when Shaw applied for a
job, Toole warned that Shaw, if hired, "shouldn't become
involved in these [union] activities" and should immediate-
ly report any activities of this kind to his supervisor. Such a
warning to refrain from conduct protected by Section 7 of
the Act, and such a directive or request to report these
activities to management , violated Section 8(a)(1) of the
Act, as alleged in paragraph 5G and H of the complaint.11
It is true that Shaw had not yet been hired when these
events took place; but contrary to the Respondent's
contention, it is enough to qualify him as an "employee"
within the meaning of Section 2(3) of the Act that he was
then an applicant for employment. He, therefore, came
within the protection of Sections 7 and 8(a)(1) of the Act.12
Accordingly, the Respondent's motion to dismiss these
allegations of the complaint because of Shaw's lack of
employee status, upon which ruling was reserved, is now
denied.
8 Marland One-way Clutch Co., Inc., 200 NLRB No. 48.
9 Grover testified: "he said we have told Doyle [Strain I ... that he was
not to talk about unions, period, on company time or company property."
Barnett and Lechtenberg denied this. In fact, Barnett did not talk to Strain
until somewhat later. I therefore consider this part of Grover's testimony
inaccurate , and credit the denials of Barnett and Lechtenberg in this regard.
10 Toole did not categorically deny Shaw's version of the conversation.
He testified:
Q. Did you tell him not to talk to anyone about a union?
A. Not to the best of my recollection.
Q. Did you tell him to report to anyone if he was approached
about the union?
A. Not that I can recall.
11 See N.LR.B., v. Speed Queen, a Division of McGraw-Edison Co., 81
LRRM 2742 (C.A. 8).
12 N.L.R.B., v. Speed Queen, supra; and Reliance Insurance Companies,
173 NLRB 1063.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
d. The interview with Deering
Also, in mid-December 1971, Craig Deering, a delivery-
man employed by the Respondent at Wood River, was
summoned to the office. 13 Barnett and Lechtenberg were
there. Barnett did most of the talking . After a discussion of
Deering's job performance, according to Deering 's credited
testimony, the following took place:
Q. What did Mr. Barnett say to you at that time?
A. He told me that they had heard, they had had
word from Tulsa that there was talk of a union, and it
was asked what I knew about it.
Q. Did you respond to that at all?
A. I told them I didn't know, there was nothing I
knew.
Q. Did Mr. Barnett say anything further?
A. He asked if everything was O.K. and if there
was any reason why I thought we needed a union at the
terminal.
Q. Did you respond to that?
A. I said something to the effect that I didn't think
the men had been treated fairly.
Q. Anything else that you remember?
A. Not about that particular topic.
Q. Was there any discussion about Doyle Strain?
A. He asked me who was instigating it and I told
him I did not know, and he then asked if Doyle Strain
was the instigator, and I told him that it was not my job
to incriminate anybody.
Q. Were you given any instructions in that conver-
sation?
A. The only instructions that I can recall was that
the union was not to be talked about in any way on
company property or on company time.
Q. Who told you that?
A. I don't remember if it was Barnett or Dave
Lechtenberg.14
The complaint further alleges (par. 5E and F), as
amended at the hearing, and the Respondent denies, that
during the last 2 weeks in December 1971 at Wood River
Barnett interrogated an employee "about employees' union
activities and desires" and Barnett and Lechtenberg
"directed an employee not to discuss the Union on
company time or company premises ." It has been found
that in mid-December 1971 at Wood River, Barnett, in
Lechtenberg's presence, asked Deering the identity of the
employee who was "instigating" the Union. When Deering
evaded, Barffett-instead of dropping the subject-in-
quired whether Strain was "the instigator." Such interroga-
tion, for which the Respondent is responsible, is clearly
coercive and violative of Section 8(a)(1) of the Act, as
alleged in paragraph 5E of the complaint. In the same
interview , either Barnett or Lechtenberg instructed Deer-
ing "that the union was not to be talked about in any way
13 Employees are customarily evaluated after 30, 60, and 90 days. This
was approximately 90 days after Deering's hire, and may well have
constituted his 90-day evaluation interview.
14 Barnett admitted that during the interview he told Deering "if he felt
that . . . anyone was putting any undue pressure on him , if it was
interfering with his work . . . and if he wanted to talk to us about it . . . feel
free to come and talk to us about it." He denied that either he or
Lechtenberg told Deering not to discuss the Union on company time or
premises or that they had questioned Deering about union activities, or
on company property or company time ." The restrictions
thus imposed on Deering were illegally broad, inhibiting
him from engaging in protected activity during his
nonworking hours.15 The Respondent moved to dismiss
this allegation of the complaint because Lechtenberg was
then employed by Continental Pipe Line Company rather
than by the Respondent. Ruling on this motion was
reserved; it is now denied. As stated above, Lechtenberg
was engaged in the joint venture and this fact alone is
sufficient to hold the Respondent accountable for his
actions. In addition, as will appear below, he was clothed
by the Respondent with apparent authority and his actions
within the scope of that authority bind the Respondent as
principal. For these reasons I conclude that the no-
solicitation instructions given Deering by Barnett and/or
Lechtenberg violated Section 8(a)(1) of the Act, as alleged
in paragraph 5F of the complaint.
2. The followup
a. The interview with Strain
It will be recalled that in late December 1971 Toole had
indicated in a long distance telephone conversation that he
would come to the Wood River area at some future date
and would like to talk to Strain then. On January 13, 1972,
Toole visited the Wood River terminal and Strain was
called into the office. Present were Toole, Miller, Barnett,
and Lechtenberg. Toole stated that other employees had
complained to him that Strain had been talking so much
about a union that it was irritating them and interfering
with their work. According to Strain's credited testimony,
Toole told him "that if I wanted to talk about a union on
my own time that it was fine, but I could not and would
not talk about a union on company time or premises."
Strain asked: "Are you calling me a union organizer?"
Toole replied that it had been reported to him that Strain
"had been harassing some of [his] fellow employees to the
point that it is interfering with their work," and warned:
"If indeed you are, let me make myself clear, I want it
stopped." Strain inquired whether that was a threat; Toole
responded that Strain could interpret it that way. Strain
denied that he had engaged in any harassment. Toole then
asked Strain if there was any aspect of his work which
'made him unhappy, and if he had any suggestions of how
the Respondent might improve its operation. Strain related
certain matters which displeased him and Toole promised
to check into these matters and determine what the
situation was. The interview ended on this note.16
The complaint alleges (par. 5B, C, and D), and the
answer denies, that in January 1972, at Wood River, Toole
instituted a rule prohibiting employees from discussing the
Union on company time or premises; threatened an
employee; and impliedly promised benefits to employees
indeed that union activities were even mentioned in the conversation. I do
not credit his denials in these respects.
15 All parties agree that the Respondent has not, during times here
relevant, promulgated any general no-solicitation rule.
16 To the extent that Lechtenberg ( 1) denied that Toole told Strain that
he was not to discuss the Union with employees on company time or
premises and (2 ) testified that Toole told Strain "it has been reported that
you have been harassing people . . . on the job during working hours," I do
not credit Lechtenberg's testimony.
CHEROKEE PIPE LINE CO.
to discourage their union activities. During the interview
with Strain, Toole warned Strain not to discuss the Union
,.on company time or premises." Like the earlier similar
directive of Barnett or Lechtenberg to Deering, discussed
above, Toole here imposed illegally broad restrictions on
Strain's right to engage in activities protected by Section 7
of the Act. And so long as these activities were carried on
in a legal manner , it requires no different conclusion where
the legal activities actually have an adverse effect on the
work proficiency.of other employees. As the Board has
said:
Assuming that Delgado's union activity may have
indirectly resulted in some impairment of efficiency at
the Respondent's plant, it is, as the Trial Examiner
points out, the price which must often be paid in order
that the rights guaranteed by Section 7 may be
preserved.17
Furthermore, the Respondent failed to produce any
evidence that Strain's activities did in fact cause any
inefficiency or actually interfered with the work of others.
Therefore, this limitation, together with the implicit threat
to impose sanctions , if necessary , to enforce it, ("let me
make myself clear, I want it stopped") violated Section
8(a)(1) of the Act, as alleged in paragraph 5B and C of the
complaint.
The General Counsel further alleges in paragraph 5D of
the complaint that, by soliciting complaints from Strain
and then assuring Strain that he would look into these
matters, Toole impliedly promised benefits to discourage
Strain from further support of the Union. And despite
some rather generalized testimony of management repre-
sentatives, I am convinced, and find, on the record as a
whole (including credited testimony of witnesses for the
General Counsel) that such conduct was not merely
routine, but on the contrary was unusual and stemmed
from the Respondent's recent knowledge of the Union's
renewed organizing drive. I conclude that, in this interview
with Strain, Toole impliedly promised benefits to Strain
-in the shape of better working conditions-in order to
discourage union activities and dampen Strain's enthusi-
asm for the Union.18
b. The second interview with Shaw
On January 3, 1972, Shaw had been hired as a
deliveryman at Wood River. Sometime in January or
February Shaw had a conversation with Barnett in
Lechtenberg's presence.19 According to Shaw's credited
testimony:
He [Barnett] wanted to know if I had heard anything
concerning the union, or had talked to anybody about
a union or union activities, and I told him I hadn't
heard of anything, and he said, well, if I did hear of
anything to let him know because they wanted to stop
it before it got started. That's about all that was said.20
The complaint alleges (paragraph 51), and the answer
denies, that in mid-February 1972 at Wood River, Barnett
and Lechtenberg interrogated an employee about the
Union, and the amended complaint alleges (par. 5P and
17 El Mundo, Inc., 92 NLRB 724, 726.
18 Reliance Electric Company, Madison Plant, Mechanical Driver Division,
191 NLRB No. 1.
565
Q), and the answer to the amended complaint denies, that
at the same time and place the same management
representatives directed an employee to report to his
superior "if the employee was approached about the
Union," and threatened the employee by stating "that
union activity would be stopped before it got started." It
has been found above that in January or February Barnett
asked Shaw if he had heard anything about the Union and
instructed Shaw to let Barnett know about any union
activities of which he learned. The questioning of Shaw in
this interview regarding what he had heard about the
Union, coupled as it was with other directives discussed
below, constituted another instance of coercive and illegal
interrogation. As alleged in paragraph 51 of the complaint,
it was violative of Section 8(a)(1) of the Act. The directive
to report such activities to management, like the similar
instruction given Shaw by Toole before Shaw was hired,
also violated Section 8(a)(1) of the Act, as alleged in
paragraph 5P of the amended complaint. Finally, the
statement that the Respondent "wanted to stop it [the
Union] before it got started" constituted a veiled threat of
reprisal for union activities proscribed by Section 8(a)(1) of
the Act, as alleged in paragraph 5Q of the amended
complaint.
3. Summer events at Wood River and Belle
a. Lechtenberg's conversation with Grover
Sometime in June 1972, Grover had a conversation with
Lechtenberg in the hallway at the Wood River terminal. As
related by Grover in his undenied testimony, which I
credit:
Q.
time?
What did Mr. Lechtenberg say to you at that
A. Just to start off with he said, "You don't have to
answer this question if you don' t want to." He said,
"We have heard there is a union representative in this
area , we know there is some interest in a union ," and he
asked if I had been contacted by a union representa-
tive.
Q. Did Mr. Lechtenberg say anything more?
A. No, sir.
Q. Did you respond to him at all?
A. Yes, sir.
Q. What did you say?
A. I told him that I had not.
The amended complaint alleges (par. 5V), and the
answer thereto denies, that during the last 2 weeks of June
1972, at Wood River, Lechtenberg "interrogated an
employee about the Union." In the above-described
conversation, Lechtenberg asked Grover whether Grover
had been contacted by a union representative. The
Respondent seeks to avoid responsibility for this conduct
by pointing to the fact that Lechtenberg was not then
nominally its supervisor , but rather was the nominal
supervisor of Continental Pipe Line Company. As set forth
above, however, he was then working on the joint venture
and therefore the Respondent and Continental Pipe Line
19 This may have been Shaw's 30-day appraisal.
20 Lechtenberg denied that Shaw was instructed to report to his superior
if he were approached about a union . This denial is not credited.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company are separately and jointly liable. However, there
is an even stronger reason for holding the Respondent
accountable for Lechtenberg's acts. It is undenied that the
Respondent at times here material distributed cards to its
employees which read, in pertinent part:
SUPERVISORS-CHEROKEE PIPE LINE Co.
Wood River, Illinois-Area Code 618-254-0154
W. J. Barnett, Supervisor of Operations-259-1198
D. L. Lechtenberg, Terminal Foreman-377-6004
By thus putting its employees on notice that Lechtenberg
was one of its supervisors, the Respondent clothed him
with apparent authority to act as a supervisor on its behalf.
Accordingly, under rules of agency, he thereby became the
Respondent's agent, and the Respondent must be held
accountable for his illegal interrogation of Grover, which
fell within the scope of his apparent authority. Paragraph
5V of the amended complaint is therefore supported.
b. DeSola's telephone call to Doty
It has previously been mentioned that the three most
active supporters of the Union were Strain at Wood River,
Rowell at Glenpool, and Doty at Belle . It has also been
related that late in December 1971 the Respondent's
officials learned of Strain's role and that in mid-May 1972
they obtained knowledge of Rowell's connection with the
Union's campaign. In early July 1972, while Doty was at
the Belle facility, he received a long distance telephone call
from DeSola. DeSola said he had a question to ask, and it
was up to Doty whether he wanted to answer. Doty
answered: "Go ahead." DeSola stated that he had heard
that union cards had been distributed, and asked if Doty
knew anything about it. Doty replied that cards were out.
DeSola asked: "How long have they been out?" When
Doty responded that they had been distributed for "about
two weeks," DeSola remarked: "I guess I'm two weeks
behind time." DeSola then inquired whether Doty
"thought the union would go this time," to which Doty
answered that he thought that it would. This apparently
ended the conversation.
The complaint as amended alleges (par. 5W), and the
answer thereto denies, that on about July 3, 1972, at the
Belle terminal ,,, DeSola "interrogated an employee about
the employee's knowledge of employees' union activities."
In the above-described telephone conversation, DeSola
clearly questioned Doty in a proscribed manner concern-
ing matters protected by Section 7 of the Act. He thereby
violated Section 8(a)(1) of the Act as alleged in paragraph
5W of the amended complaint.
c. Jeter's interview with Doty
On about July 7, 1972, Gerald W. Jeter, then manager of
Eastern operations, visited the Belle facility accompanied
by Skinner and James Mitchell. A conversation took place
in the office of the Belle facility in which Doty was
involved. According to Doty's credited testimony, the
following took place:
Q. What did Mr. Jeter say?
A. He said he'd come by to visit and wanted to
know if I had any problems or anything that might be
making the employees unhappy or dissatisfied.
Q. Did you respond to Mr. Jeter?
A. I told him the only thing that I knew of, it
possibly was the firing of the two employees at Wood
River and filling of the position at St. Charles facility
with someone outside of the regular organization.
Q. Did Mr. Skinner make any comments during
the conversation?
A. Oh, he said that the organization didn't get
messed up overnight, and it would probably take him a
while to get it straightened out, but he assured me it
would be.
Jeter testified that he remarked:
I think I [said] . . . that if there were problems, it was
very easy for me to be in Ponca City and not know
anything about the problems, that I was going to take
an opportunity to get out, not only on Cherokee, but on
all of the systems, to determine if there was any
dissatisfaction, I couldn't make any promises even if I
found that there were situations that needed to be
corrected, but that I knew a good number of people on
Cherokee, considered a good deal of them my friends
and would make every effort to eliminate any sources
of dissatisfaction.
Shortly after this, Skinner distributed to the employees the
interoffice communication quoted above.
The amended complaint alleges (par. 5X), and the
answer to it denies, that during the first 2 weeks in July
1972, at the Belle pump station, Jeter "impliedly offered
benefits to an employee by inquiring into the employee's
problems." In the light of the unusual nature of Jeter's visit
to Belle, accompanied by Skinner and Mitchell, and in
view of Jeter's assurance that he "would make every effort
to eliminate any sources of dissatisfaction," I conclude that
Jeter on this occasion impliedly promised Doty employee
benefits for the purpose of discouraging Doty's support of
the Union. Like Toole's earlier implied promises to Strain
at Wood River, this violated Section 8(a)(1) of the Act,21
and is covered in the complaint in the allegations of
paragraph 5X.
4. Incidents involving Rowell
The remaining allegations of independent violation of
Section 8(a)(1) concern incidents at Glenpool or Tulsa in
which the individual alleged to have been the victim was
Joe Rowell, one of the three most active union supporters.
All such incidents are alleged to have taken place in June
or July 1972 (par. 5J, K, L, M, N, 0, Y, Z, and AA). The
General Counsel maintains that Rowell was a mere rank-
and-file employee during these months; the Respondent, to
the contrary, contends that Rowell was a supervisor within
the meaning of Section 2(11) of the Act. For this reason the
Respondent moved to dismiss the portions of paragraph 5
of the complaint relating to Rowell.
21 Reliance Electric Company, supra.
CHEROKEE PIPE LINE CO. 567
Rowell began working for the Respondent in about 1959.
In November 1971, he was made temporary terminal
foreman at the Respondent's Glenpool pump station. In
this capacity he attended a meeting of supervisors held in
Tulsa for the purpose of evaluating rank-and-file employ-
ees, and he participated in the evaluation of the work of
one nonsupervisory worker. In April 1972, he was
promoted to chief deliveryman at Glenpool with an
increase in pay. This is a salaried job, in contrast to
deliverymen who are hourly paid. According to DeSola's
credited testimony:
I told Joe that the job he would be expected to do
would be the same one that was assigned to Ray Miller.
I did not discuss the specific deliveryman duties
because he knew them much better than I did, but I did
specifically discuss with him the scheduling of his time
and that of Leon Bowling . . . . That he was
responsible to work with Leon and to schedule Leon's
time and also his own to get the maximum coverage at
the Glenpool area.22
Late in June, DeSola summoned Rowell to Tulsa,
reprimanded him for failing to attend a supervisors'
meeting, and informed him that one of the duties of chief
deliveryman was attendance at such meetings.
Suttmoeller, supervisor of operations at Glenpool, went
on vacation for 2 weeks early in July. During his absence,
Rowell acted as temporary supervisor of operations at an
increased salary. After his vacation had ended, Suttmoeller
returned to work for a short while but resigned effective
the end of July. A replacement was not obtained until late
in August. Rowell again acted as temporary supervisor of
operations in the interim. During both times when Rowell
served as temporary supervisor of operations, he was the
highest ranking person at the Glenpool facility. At the end
of August, he reverted to his former capacity as chief
deliveryman.
The testimony of Suttmoeller, a witness for the General
Counsel, and that of Jeter and DeSola, witnesses for the
Respondent, clearly demonstrates that both as chief
deliveryman and as temporary supervisor of operations
Rowell possessed authority to carry out some of the
functions of a supervisor, as defined in the Act. But the
matter need not rest entirely on this, for the testimony was
buttressed by certain documents introduced into evidence
by the Respondent. These are three overtime explanation
slips regarding rank-and-file operator Leon Bowling dated
April 29 and 30, 1972, which were received in the Tulsa
office on Ma}s 3, 1972; and three others regarding operator
Mark Maupin dated June 30, July 1, and July 30, and
received at the Tulsa office on July 12 and August 13,
1972. All purported to be signed by Rowell, and the
overtime was paid for by the Respondent on the basis of
these documents without further question.23 The fact that
22 Rowell could not recall any discussion of his duties or authority at this
time.
23 The General Counsel and the Charging Party objected to their
introduction for lack of authentication of Rowell's purported signatures.
The objection was overruled and the documents admitted as business
records on the basis of 28 U.S.C. Sec. 1732 (a). In his brief, the General
Counsel poses another objection , namely , the Respondent 's failure to
confront Rowell with his purported signatures while Rowell was on the
stand . Assuming , without deciding , that such an objection is otherwise
meritorious , it comes too late, having been raised for the first time after the
the Respondent was willing to pay out overtime wages on
the strength of a signature believed (correctly or incorrect-
ly) to be that of Rowell is eloquent proof that at that time
Rowell had authority to authorize overtime work by
employees under him. This is especially true in the light of
DeSola's undenied and credited testimony that in the
Respondent's business , "Overtime is something that is
rather rigidly controlled and analyzed, that the supervisor
involved, be he chief deliveryman or supervisor of
operations, must authorize the overtime." For the forego-
ing reasons it is found that Rowell was, during the months
of June and July 1972, possessed of supervisory authority,
as defined in Section 2(11) of the Act, and that he knew he
had such authority. Whether Rowell actually exercised
such authority, and whether the Respondent knew of his
prounion activities and raised no protest, are extraneous to
the issue. It follows that, even had the Respondent engaged
in the acts alleged in paragraph 5J, K, L, M, N, 0, Y, Z,
and AA of the complaint as amended, this conduct would
not have been proscribed because the acts were directed
toward a supervisor. The Respondent's motion to dismiss
this portion of the complaint is accordingly granted.
E. The Discharge of Craig Deering
1. Facts
Craig Deering began working for the Respondent late in
August 1971 as a deliveryman at the Wood River facility.
At that time the Wood River operations were carried out
by a pair assigned to each shift, consisting of a deliveryman
and a terminal man. From the beginning of his employ-
ment until sometime in December 1971, Deering was
paired, that is, worked on the same shift, with Strain, who
was a terminal man. In December 1971, the policy of
pairing men was changed, and thereafter for several
months Deering handled a shift by himself.
Deering's work was evaluated by Barnett in December
1971, approximately 90 days after his hire. Barnett told
Deering at that time that Deering "was coming along
about average." As previously detailed, in December 1971
Deering was illegally interrogated by Barnett, in Lechten-
berg's presence, about the union activities of his fellow
employees, and in particular about those of Strain.
On April 15,24 Deering was on shift alone. At about 5:40
a.m., Barnett came to the Wood River terminal and found
Deering asleep. He woke Deering and lectured him about
the seriousness of sleeping on the shift.25 Barnett reported
the incident to DeSola by long distance telephone that
morning. In this conversation Barnett "suggested ... that
maybe we ought to look at terminating Craig" because of
Deering's "poor job performance, inability to accept
responsibility of the job, and then alsp sleeping on the job."
close of the hearing . It should also be mentioned in passing that, at the time
these documents were introduced, the General Counsel had Rowell under
subpena but failed to produce him on rebuttal to disavow the purported
signatures.
24 All dates hereafter refer to the year 1972 unless otherwise noted.
25 Deering testified that he had become ill on duty and both Deering and
Barnett testified that Deering explained this fact to Barnett after Barnett
woke him. Deering admitted that he had previously been instructed by
Barnett that if he felt ill enough that he could not perform his duties, he was
to contact Barnett and request to be relieved.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DeSola directed Barnett to write him a letter about the
matter. Accordingly, on April 17 Barnett sent to DeSola an
interoffice communication describing the incident. On or
about April 20, DeSola visited Wood River and conferred
with Barnett and Lechtenberg about the work of Deering,
and also that of Shaw.26 Barnett and Lechtenberg
individually recommended the discharge of both Deering
and Shaw because of unsatisfactory performance on the
job. DeSola returned to Tulsa and conferred there the next
day, April 21, with William H. Meara, terminal superin-
tendent for Continental Oil Company.27 A few days later,
probably on April 24, DeSola and Meara conferred with
Skinner about the matter. At a second conference in late
April or early May attended by Skinner, DeSola, and
Meara, Skinner decided to discharge Deering and Shaw
effective May 31. This date was selected in order to
provide time to obtain replacements. Skinner directed
Meara to inform Barnett and Lechtenberg of this decision.
Meara went to Wood River and told Barnett and
Lechtenberg what had been decided. During May, replace-
ments were obtained for both Deering and Shaw. These
replacements were instructed to report for work at Wood
River in June. Under DeSola's direction, "Employment
and Changes" slips were filled out for Deering and Shaw.
In the box for "Reason" on Deering's slip appears the
following:
The employee has shown an inability in coping with his
present job and has not demonstrated iniative [sic] in
reinforcing areas where he has proved to be deficient.
He is immature and doesn't comprehend the responsi-
bilities charged to him, as demonstrated by his being
found asleep on the job on April 15, 1972. It is felt that
the employee has a lack of career potential to the
company.
Skinner signed both slips on May 11, and took them to
Ponca City the following day, where he presented them to
Jeter. At Skinner's recommendation, both discharges were
approved by Jeter.
On May 31, Deering was working the 8 a.m. to 4 p.m.
shift with another employee.28 At or about 2:30 p.m.,
Deering was summoned to the office, where Barnett and
Lechtenberg were present. Barnett announced that Deer-
ing was discharged, effective immediately, and would
receive 2 weeks' pay in lieu of 2 weeks' notice. Deering
inquired why he was being discharged. Either Barnett or
Lechtenberg replied "that 90 percent of the reason was
falling asleep once on the job, and that the people in Tulsa
had took that'pretty hard . . . and that 10 percent was for
other reasons." 29 Deering then turned in his keys and
employee credit card,30 emptied his locker, and left. After
he got home, Deering called Lechtenberg at the terminal
and asked if 90 percent of the reason for his discharge was
falling asleep on the job what was the other 10 percent?
26 The record contains testimony tending to indicate the unsatisfactory
nature of Shaw's job performance.
27 Meara testified that while he was at Wood River in mid-April, Barnett
and Lechtenberg recommended directly to him (Meara) that Deering and
Shaw be terminated . I deem it unnecessary to make any finding regarding
such a conversation.
28 On or about May 1, the two-man shift had been reinstituted at Wood
River and Deering resumed teaming up with Strain. Late that month,
because of vacation schedules, Deering's partner was changed from Strain
to another employee.
According to Deering, Lechtenberg gave a noncommittal
answer. According to Lechtenberg, he answered in some
detail. Both agreed, and I find, that at the end of the
conversation Lechtenberg referred Deering to DeSola in
Tulsa for further details.
Meanwhile, rumors of the discharge had reached
Suttmoeller, Deering's brother-in-law. Suttmoeller tele-
phoned long distance to DeSola and stated that he
understood Deering had been terminated. DeSola an-
swered that Deering's discharge was scheduled to take
place that day, but he did not know whether it had
occurred as yet. Suttmoeller protested that Deering should
not be discharged merely for sleeping on the job. DeSola
responded that the sleeping incident was not the only
reason, that Deering had been let go because of his poor
performance generally. Between 3 and 3:30 p.m., DeSola
telephoned to Wood River and confirmed, through
Barnett, that Deering had actually been discharged. At or
about 4:30 p.m., Deering telephoned long distance to
DeSola in Tulsa, as Lechtenberg had suggested. Deering,
who was upset, wanted to know why he had been
dismissed. He added that he did not consider it fair to
discharge him for sleeping on the job. DeSola replied that,
although the sleeping incident "in itself was pretty serious,"
it was not the sole cause of the discharge. There followed a
discussion of Deering's failure to contact Barnett or
Lechtenberg when he felt ill on April 15. Other reasons for
the discharge given by DeSola included that Deering was
incompetent, couldn't make major decisions by himself,
and had neglected his duties. The conversation ended with
DeSola promising to "look into" the discharge and call
Deering back later that week.31 DeSola then made a
telephone call to Barnett in Wood River for the second
time that day. Barnett informed DeSola that Shaw had also
been discharged. DeSola directed Barnett to send him a
separate list of reasons for the dismissal of each man
-Deering and Shaw. Barnett and Lechtenberg then
collaborated in preparing the two lists.
On June 1, at Deering's request, Skinner met with
Deering in Tulsa. Deering protested his discharge and
explained why he thought it was unfair. According to
Deering: "I talked with Mr. Skinner for an hour and a half,
discussed everything, and he listened to me." At the
conclusion, Skinner promised that he would make a
personal investigation at Wood River and, if he found
anything to change his mind, would get in touch with
Deering. Approximately 2 weeks later, while at Wood
River, Skinner talked to one of the employees in private,
and asked if the employee felt that the Respondent had
been unfair in terminating Deering or Shaw. The employee
declined to comment.
Meanwhile on June 2, before 8 a.m., DeSola called
Barnett in Wood River and asked him to read over the
29 Deering attributed the 90-10 percent statement to Barnett; Lechten-
berg attributed it to himself ; and Barnett denied that Deering asked any
questions and made no reference to the 90-10 percent remark . I do not
credit Barnett's denial in this regard.
30 Recall of such credit cards is customary when employees are
separated.
31 Deering testified that DeSola stated in the conversation that one
reason for the discharge was that Deering "was too close a friend of
Doyle' s." DeSola flatly denied making such a statement. Deering's
testimony in this regard was not convincing ; I credit DeSola's denial.
CHEROKEE PIPE LINE CO. 569
telephone his list of specific examples of Deering's poor
work performance . As Barnett read , DeSola wrote down
the substance of each complaint , of which there were ten.
Barnett then informed DeSola that he had heard that
Deering was planning to go to the National Labor
Relations Board and was threatening suit against the
Respondent . He added that in his opinion Deering was not
"bright enough to be doing these things on his own."
DeSola asked if Barnett had any idea "where he [Deering]
was getting his coaching," inquiring specifically whether
Barnett thought it might be Suttmoeller . Barnett answered
that he didn't think that it was Suttmoeller . Strain's name
then entered the conversation . According to Barnett's
testimony:
He said what about his association with Doyle Strain,
could it be Doyle , and I told him that the only
association I knew about Strain and Craig was that
they worked together on shift , and that they seemed to
be pretty good friends.
According to DeSola 's version , it was Barnett who first
mentioned Strain. Thus DeSola testified:
Wes [Barnett ] also told me that the month prior to
being dismissed , that Craig had been assigned to and
worked nearly full time with Doyle Strain, and that
their association was such that Craig seemed to place
quite a bit of reliance on Doyle for doing the work,
conversation , what have you, and that it was possible
that Doyle was putting him up to it.
While this discussion was going on, DeSola wrote the
words: "Craig Deering-relationship with Doyle Strain" at
the top of the paper containing his notes of specific
examples of Deering's shortcomings.
DeSola then telephoned long distance to Suttmoeller in
Glenpool and instructed him to come to DeSola's Tulsa
office that afternoon . Suttmoeller complied . DeSola read
to Suttmoeller the 10 instances of Deering 's unsatisfactory
work performance . Nothing was said about Deering's
relationship with Strain ; however , Suttmoeller did happen
to see the paper referred to above, and noticed the words:
"Craig Deering-relationship with Doyle Strain" written at
the top . Suttmoeller remarked that when Deering was first
hired by the Respondent Suttmoeller had advised Deering
to "keep his nose clean ." During the conversation , DeSola
voiced his suspicion that somebody was telling Deering
what to do. DeSola asked , "Are you putting Craig
[Deering ] up to this?" Suttmoeller replied in the negative,
adding: "if anybody was putting him up to it, it was his
mother."
As previously noted , on June 5 Deering filed the instant
charges. On June 8, DeSola telephoned long distance to
Suttmoeller . According to DeSola's undenied testimony:
Q. You did recognize his voice?
A. Addressed him by name and recognized his
voice , and I told him that we received a notice of
complaint from the N.L.R.B. about discriminating
against Craig because of his union activities , and I told
Ron at that time that I didn 't know of any activities on
the part of Craig and asked him if he did, and he said
no, he didn 't have any idea. Then he went on to tell me,
reminded me that I had spoken to him that Friday
afternoon , the 2nd of June, and that he had seen the list
on my desk and the notation at the top , said that
Deering was at his house at that time, and that this was
relayed to him as one of the reasons for-
Q. (Interrupting) Relayed to him by whom?
A. I don 't know if Ron told him directly, but
related either directly from Ron or through his wife to
Mr. Deering about the association with Doyle Strain.
[sic] Mr . Suttmoeller told me that . I mentioned to Ron,
"Well, that explains it, that 's the basis for this
particular case," and I told him at that time I certainly
expected him to use a little more discretion in what
information was passed along to the employees and in
particular after a man has been discharged.
Q. Did you state to him anything concerning
whether or not that association or relationship with
Doyle Strain was a reason for discharge?
A. No. I believe I told him that I believed that
Doyle Strain was involved in union activities and the
relationship with Doyle Strain , therefore , tied right in
with this N.L.R.B . complaint.
Q. Did you in that conversation deny to Mr.
Suttmoeller that this was a reason for termination?
A. Yes, I told him that it was not a reason . I asked
him if indeed I had told him that it was , and he said no,
he had just seen it on top of the paper.
On June 12 , DeSola visited the Glenpool facility and
talked to Suttmoeller. According to Suttmoeller's undenied
testimony:
He said that he was very upset with the charges and
that he wanted to know what I had told Craig. I told
him that I had told Craig what was on the list, and I
told him about the association with Doyle Strain, and
he said something to the effect that I didn't tell you
that , and I said , well, I don't know, I said, I read it on
the list that was on your desk. He said, "Well, that
didn't mean nothing," he said , "it was just there ." Later
on during the conversation he stated did I know that
Doyle was on the books as a union organizer, and I
said that, well, I had heard something similar before.
Suttmoeller later resigned from the Respondent's em-
ploy, effective July 31.
2. Contentions of the parties
The complaint alleges that Deering was discharged, and
thereafter denied reinstatement, because he "joined or
assisted the Union or engaged in [union] activities" or
alternatively because he "associated with other employees
who joined or assisted the Union and . . . engaged in
[union] activities ." At the hearing and in his brief, the
General Counsel appears to have abandoned any conten-
tion that Deering himself was directly involved in union
activities and relies instead on the alternative allegation,
namely, that Deering's dismissal "was substantially moti-
vated by Respondent 's belief , whether correct or incorrect,
that Deering was associated with [and sympathetic to] a
"known union adherent," namely, Strain. In support of this
contention the General Counsel points to the "numerous
items" of violations of Section 8(a)(1) of the Act as
establishing "Respondent 's union animus." He also urges
that "the fact that Respondent may have had valid reasons
for discharging Deering is not crucial ." Finally, he takes
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the position that "Shaw's contemporaneous discharge
should not insulate Respondent from the unlawfully
motivated discharge of Deering."
The Respondent in its answer admits that it discharged
Deering on May 31 and thereafter failed and refused to
reinstate him. It denies , however, that Deering's union
activities , if any, or his association with known union
adherents, if any, had anything to do with the discharge. In
its brief the Respondent denies that there is evidence that
Deering engaged in any union activities. And, while
apparently conceding that it knew of or suspected Strain's
support of the Union, the Respondent further denies that
Deering's association with Strain was a factor in Deering's
discharge. Finally, the Respondent takes the position, as an
affirmative defense , that "Mr. Deering was not singled out
for treatment" as shown by the parallel treatment accorded
Shaw, but on the contrary, "Craig Deering was discharged
for cause," that is, his unsatisfactory work performance.
All this boils down to a single issue : Was Deering's
known or suspected association with, or sympathy for,
Strain a substantial motivating factor in the Respondent's
decision to discharge Deering? The General Counsel has,
of course, the burden of proving the affirmative.
3. Conclusions
The record clearly demonstrates that, beginning with
early 1971 and continuing into mid-1972, the Respondent
reacted promptly when it learned that the Union was
campaigning, and showed keen interest in the identity of
the Union's proponents. Moreover, it has been found
above that the Respondent engaged in numerous violations
of Section 8(a)(1) of the Act. For these reasons I find, in
agreement with the General Counsel, that at all material
times the Respondent harbored animus toward the
Union.32
Assuming, without deciding, that this animus was not
only directed toward the Union as an institution but also
toward Strain as an individual, there is nothing in the
evidence to convince me that the Respondent chose this
means-the discharge of his "associate" Deering-to "get
at" Strain. To find that the Respondent sought reprisal
against Strain by this method is simply too speculative,
unsupported by the record, and too farfetched to be
convincing.
But did the Respondent seek to rid itself of Deering
because it believed that Deering had become contaminated
with prounion enthusiasm through his association with
Strain? Again, the record does not support such a theory.
Deering was not shown to have engaged in any prounion
activities before his discharge; admittedly he did not even
sign a union card. The record is silent as to any mention of
the Union by Deering with one exception: Several weeks
before his discharge, Deering told his brother-in-law,
Suttmoeller, "that there had been a lot of union talk up in
the Wood River area." Suttmoeller advised Deering: "Just
kind of walk the line or kind of stay out of it." This can
32 This finding is not meant to be critical of the Respondent, but merely
constitutes a statement of fact . The Respondent had, of course, a legal right
to resent and to oppose the Union , so long as it took no action proscribed
by the Act. N.L.R.B. v. McGahey, 233 F.2d 406,409 (C.A. 5). But, as the
scarcely be considered as an expression by Deering of
sympathy with Strain or with' the union cause.
In the final analysis the General Counsel 's case rests
perilously on the single fact that, on June 1, Barnett and
DeSola talked briefly about Deering's association with
Strain , and DeSola noted on the list of Deering 's faults the
words "Craig Deering-relationship with Doyle Strain."
But this cannot be considered out of context. Credible
testimony establishes that this subject came up for the first
time after Deering's discharge; it therefore could not have
played any part in the decision to dismiss him. Further-
more, Deering's relationship with Strain was of interest to
the Respondent 's management not as a factor in deciding
to discharge him (that decision had already been made) but
only in the context of speculation as to whom Deering was
consulting and who was "coaching him" in regard to the
measures Deering took, and threatened to take, after he
was informed of his discharge . Although the matter is not
entirely free of suspicion, I conclude that the General
Counsel has failed to establish a prima facie case ; that is,
has not produced a preponderance of evidence, that
Deering's association with Strain was a substantial moti-
vating factor in the Respondent's decision to discharge
Deering . Accordingly, the Respondent's motion to dismiss
that portion of the complaint which relates to Deering's
dismissal (par. 6C), upon which ruling was previously
reserved, is now granted. In this posture of the case, it is
unnecessary to examine the Respondent 's defense that
Deering was discharged because of his unsatisfactory
performance on the job.
Upon the basis of the above findings of fact, and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Cherokee Pipe Line Company is, and at all material
times has been , an employer within the meaning of Section
2(2) of the Act, engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Oil, Chemical and Atomic Workers International
Union, AFL-CIO, is, and at all material times has been, a
labor organization within the meaning of Section 2(5) of
the Act.
3. By interrogating its employees concerning their
union membership, activities, or sympathies, or those of
their fellow employees, in a threatening and coercive
manner ; by creating the impression that it was engaging in
surveillance of its employees ' union activities ; by threaten-
ing reprisals against its employees for supporting any labor
organization; by promising benefits to its employees in
order to discourage them from supporting any labor
organization; by instructing its employees to inform it
about the union activities of their fellow employees; and by
prohibiting its employees from discussing labor organiza-
tions on company premises during nonworking time,
thereby interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed by Section 7
of the Act, the Respondent has engaged in and is engaging
United States Court of Appeals for the Fifth Circuit has said: "antiunion
bias and demonstrated unlawful hostility are proper and highly significant
factors for Board evaluation in determining motive ." N.L.R.B . v. Dan River
Mills, Incorporate[ 274 F.2d 381, 384 (C.A. 5).
CHEROKEE PIPE LINE CO. 571
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The above-described unfair labor practices tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce, and constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. The General Counsel has failed to establish by a
preponderance of the evidence that the Respondent has
engaged in or is engaging in any unfair labor practices
other than as found herein.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 33
ORDER
Cherokee Pipe Line Company, Hartford, Illinois, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees about their union
membership, activities, or sympathies, or those of their
fellow employees, in a threatening or coercive manner.
(b) Creating the impression that it is engaged in, or has
engaged in, surveillance of the union activities of its
employees.
(c) Threatening to stop union activities before they get
started, or otherwise threatening reprisals against its
employees for supporting any labor organization.
(d) Promising benefits to its employees in order to
discourage them from supporting any labor organization.
(e) Requesting, instructing, or directing its employees to
inform it concerning the union activities of their fellow
employees.
(f) Prohibiting its employees from discussing any labor
organization on company premises on the employees' own
time.
(g) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights protected by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its facilities in Tulsa, Oklahoma ; Belle,
Missouri; Glenpool, Oklahoma; and Hartford, Illinois;
copies of the attached notice marked "Appendix." 34
Copies of such notice, on forms provided by the Regional
Director for Region 14, after being signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and shall be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that such notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed,
insofar as it alleges that the Respondent violated the Act
other than as found herein.
33 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
34 In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board ," shall read, "Posted Pursuant
to the Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question our employees about their
union membership, activities, or sympathies, or those
of their fellow employees, in a threatening or coercive
manner.
WE WILL NOT create the impression that we are
spying on the union activities of our employees.
WE WILL NOT threaten to stop union activities before
they get started, or otherwise threaten reprisals against
our employees for supporting any union.
WE WILL NOT promise benefits to our employees in
order to discourage them from supporting any union.
WE WILL NOT instruct our employees to inform us
about the union activities of their fellow employees.
WE WILL NOT prohibit our employees from discuss-
ing any union on company premises on their own time.
WE WILL NOT in any like or related manner interfere
with our employees in the exercise of their organiza-
tional rights guaranteed under the National Labor
Relations Act, except to the extent that such rights may
be affected by an agreement requiring union member-
ship as a condition of employment, as authorized in
Section 8(a)(3) of the Act.
All our employees are free to become, remain, or refrain
from becoming or remaining members of any union,
except to the extent that such rights may be affected by an
agreement requiring union membership as a condition of
employment, as authorized in Section 8(a)(3) of the Act.
CHEROKEE PIPE LINE
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office , 210 North 12th Boulevard,
Room 448 , St. Louis , Missouri 63101, Telephone
314-622-4167.