Crown Central Petroleum Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 322 (N.L.R.B. 1969)

322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crown Central Petroleum Corporation and Oil,
Chemical & Atomic Workers International Union,
AFL-CIO. Case 23-CA-3026
June 30, 1969
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND ZAGORIA
On December 10, 1968, Trial Examiner Herman
Tocker issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed, as set forth in the attached Trial
Examiner's Decision. Thereafter the General
Counsel and the Charging Party filed exceptions to
the Decision and supporting briefs, and the
Respondent filed a brief in support of the Decision
and a reply brief to the General Counsel's and
Charging Party's exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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, the briefs, and
the entire record in this case, and finds merit in the
exceptions. Accordingly, the Board adopts the
findings of the Trial Examiner only to the extent
that they are consistent with the summary and
analysis of the case set forth below.
The essential facts in this case are as follows:
On May 9, 1968, a grievance meeting took place
between Respondent and the Workmen's Committee
of the Union.' Employee Gilliam was the chairman
of this committee and had served in this capacity
since 1963. One of the grievances taken up was that
of employee Harris, also a committeeman, with
respect to some overtime he had worked in the
latter part of March 1968. According to Harris, he
had been "ordered" to work overtime by
Respondent Supervisor Manly, while protesting that
under the collective-bargaining agreement an
employee could only be "requested" to work
overtime and could refuse, and he did not wish to
work the overtime. Nevertheless, Harris had worked
the overtime under protest, and then had filed the
grievance. According to Manly, he had only
"requested" Harris to work overtime, and he denied
that he had "ordered" Harris to do so. Harris and
Gilliam accused Manly of lying on this score, or at
least intimated as much, and told Manly that he
would pay for this earthly sin in the hereafter. The
meeting was then adjourned. On the next day, May
10, 1968, Respondent issued a letter of reprimand to
Harris, and a letter of reprimand and suspension for
1 day to Gilliam, for their remarks to Manly at the
May 9 grievance meeting.
As recognized initially by the Trial Examiner in
his Decision, under applicable Board precedents,
such as Bettcher Manufacturing Corporation, N. P.
Nelson Iron Works, Inc., his own decision in Huttig
Sash & Door Company, Inc., and Thor Power
Tool Company,' it would normally be found that
this is a clear case of protected conduct during a
grievance proceeding, and that Respondent
wrongfully disciplined both Harris and Gilliam for
such conduct.' However, the Trial Examiner found
that there were special circumstances here which call
for a different conclusion.
The first special circumstance relied on by the
Trial Examiner is that he perceived of no distinction
between an employee being requested by his
supervisor to do something and being ordered to do
it, that thus the seed of this case was ill born, and
the case is of a "sport" or "maverick" nature. We
need not pass on this question, however, because, as
recognized by the Trial Examiner, the alleged unfair
labor practice with which we are concerned is not
whether Harris was wrongfully ordered to work, but
whether Harris and Gilliam were wrongfully
disciplined for protected activity at the grievance
meeting.
The second special circumstance relied on by the
Trial Examiner is that there was no justification for
the statements made by Harris and Gilliam to
Manly. In support, the Trial Examiner relied on his
conclusions that the remarks in issue were "coldly"
intentional, that Manly was a mild-appearing
person, that Gilliam had no reason to accuse Manly
of lying without personal knowledge of the facts,
and that the other employees in the plant were
surprised and shocked when they learned of the
statements. We consider these conclusions, if
correct, to be unimportant on the issue of whether
the statements were protected. The issue is not
whether the statements by Harris and Gilliam were
justified by either the Trial Examiner's standards or
ours, but rather whether these statements were so
opprobrious as to remove them from the otherwise
protected nature of the grievance meeting. We find
that they were not. Thus, in Bettcher
Manufacturing, supra, the Board held in a similar
situation that an employee was engaged in protected
activity when in the course of bargaining he
intimated that his employer was a "liar" and
"juggled" his books to convey a false picture of the
company's financial status. In so holding, the Board
made the following pertinent observations with
respect to the censorship of such remarks:
'The Workmen's Committee for the handling of employee grievances is
provided for by the contract between Respondent and the Union.
'76 NLRB 526, 80 NLRB 788, 154 NLRB 1567, and 148 NLRB 1379,
respectively See also Socony Mobil Oil Company, Inc, 153 NLRB 1244,
enfd as modified 357 F 2d 662 (C.A 2)
See also the Trial Examiner 's explication at the hearing of the general
177 NLRB No. 29
CROWN CENTRAL PETROLEUM CORP. 323
A frank, and not always complimentary, exchange
of views must be expected and permitted the
negotiators if collective bargaining is to be natural
rather than stilted. The negotiators must be free
not only to put forth demands and
counterdemands, but also to debate and challenge
the statements of one another without censorship,
even if, in the course of debate, the veracity of
one of the participants occasionally is brought
into question . If an employer were free to
discharge an individual employee because he
resented a statement made by that employee
during a bargaining conference, either one of two
undesirable results would follow: collective
bargaining would cease to be between equals (an
employee having no parallel method of
retaliation), or employees would hesitate ever to
participate personally in bargaining negotiations,
leaving such matters entirely to their
representatives. [Emphasis supplied.]
These observations are equally applicable to the
situation here of a grievance meeting between
management and employee representatives,
particularly since the primary issue in the grievance
was the veracity of management.
The last special circumstance relied on by the
Trial Examiner is that there is no evidence of any
union animus by Respondent in this case or in the
many years of Respondent' s relations with the
Union. Such affirmative evidence of union animus
might be necessary to support a violation of Section
8(a)(3),' but it is not necessary to support a violation
of Section 8(a)(1). Accordingly, while Respondent's
disciplining of Harris and Gilliam for engaging in
the collective- bargaining process itself may have
been inherently discriminatory,' we find it
unnecessary to resolve that issue, for we find that in
any event such disciplining constituted interference,
principles applicable to this type of case , which he sets forth in his
Decision.
'We find no merit in Respondent 's contention that, because Manly was a
plant supervisor and not a member of Respondent ' s industrial relations
department negotiating team at the grievance meeting , Manly could not be
subjected to the remarks in question lest it infringe upon his supervisory
disciplinary authority over the employees As indicated by the Trial
Examiner at the hearing , the "master -servant" relationship does not carry
over into a grievance meeting , but there is instead at such a meeting only
company advocates on the one side and union advocates on the other side
engaged as opposing parties in litigation . Accordingly, with respect to the
grievance in issue , Manly was at the grievance meeting , not in the role of a
"master ," but as a company advocate and one of the parties involved in
the litigation , and in fact one of the parties directly involved in the
grievance itself As such , he was subject to the same free exchange of
remarks as any other company representative, and his supervisory
disciplinary authority was not involved . To hold otherwise would
improperly interfere with such a free exchange , and might indeed leave no
free exchange at all in the countless situtations of smaller employers with
no industrial relations department , where only supervisors represent the
employer in grievance meetings.
'But see N L .R.B v. Great Dane Trailer , Inc, 388 U .S. 26, and
N L.R.B v. Fleetwood Trailer Co., 389 U.S 375, where the Supreme
Court held that some conduct may be inherently discriminatory , and not
require affirmative evidence of antiunion motivation.
'See In 5, supra.
restraint , and coercion with respect to Section 7
rights , and thus violated Section 8(a)(1).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Oil, Chemical & Atomic Workers International
Union , AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent interfered with , restrained, and
coerced its employees in the exercise of rights
guaranteed by Section 7 of the Act, and thereby
engaged in and is engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and take certain
affirmative action in order to effectuate the policies
of the Act.
Having found that Respondent unlawfully issued a
letter of reprimand to employee Harris, and a letter
of reprimand and suspension for 1 day to employee
Gilliam, we shall order Respondent to revoke and
expunge from its records such reprimands; and to
make employee Gilliam whole for any loss of pay
suffered by him as a result of his 1-day suspension,
with interest at the rate of 6 percent per annum
computed quarterly in accordance with F. W.
Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Crown Central Petroleum Corporation, Houston,
Texas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Issuing letters of reprimand to, or suspending,
employees because of their protected participation in
grievance meetings.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Revoke and expunge from its records the
letters of reprimand issued to George S. Harris and
Jack R. Gilliam on May 10, 1968, and make
Gilliam whole for any loss of earnings he may have
suffered as a result of his 1-day suspension on May
13, 1968, in the manner set forth in the section
hereof entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board and its agents, for examination and
copying, all payroll records, social security records,
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due.
(c) Post at its place of business at Houston,
Texas, copies of the attached notice marked
"Appendix."' Copies of such notice, on forms
provided by the Regional Director for Region 23,
after being duly signed by an authorized
representative of Respondent, shall be posted
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in
conspicuous places , including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that such notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 23, in
writing, within 10 days from the date of this
Decision and Order, what steps Respondent has
taken to comply herewith.
'In the event that the Board ' s Order is enforced by a decree of a United
States Court of Appeals, there shall be substituted for the words "a
Decision and Order" the words "a Decree of the United States Court of
Appeals Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of The National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT issue letters of reprimand to, or
suspend, employees because of their protected
participation in grievance meetings.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of rights guaranteed them in Section 7 of the Act.
WE WILL revoke and expunge from our records the
letters of reprimand issued to George S. Harris and
Jack R. Gilliam on May 10, 1968, and WE WILL make
George R. Gilliam whole for any loss of pay he may
have suffered as a result of his 1-day suspension
on May 13, 1968, with interest thereon at the rate of
6 percent per annum.
Dated By
CROWN 'CENTRAL
PETROLEUM CORPORATION
(Employer)
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, 6617 Federal
Office Bulding , 515 Rusk Avenue, Houston , Texas 77002,
Telephone 713-765-0404.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN TOCKER, Trial Examinar: This case, with all
parties represented, came on to be heard before me in
Houston, Texas, August 14-15, 1968. The charge was filed
by Oil, Chemical & Atomic Workers International Union,
AFL-CIO, May 16, 1968, and duly served on the
Respondent, Crown Central Petroleum Corportation. The
General Counsel, by complaint dated June 20, duly served
on that day, instituted this proceeding alleging that
Respondent on or about May 10 had reprimanded one
employee and had reprimanded and suspended for one day
another employee because of conduct in which they had
engaged while participating in protected activities.
Respondent appeared by Counsel and filed its answer
June 28, admitting these disciplinary actions but denying
that they had been imposed in violation of law . Except for
its denials of violation of law , it admitted all other
allegations set forth in the complaint.
The Issue
During the course of a general grievance meeting
having to do with a number of matters of concern to the
employees , there came up for consideration one grievance
arising out of conflicting views as to the mandatory or
nonmandatory nature of overtime provisions in the
parties' collective-bargaining agreement . One of the
members of the Union's Workmen's Committee was
involved personally . Regardless of the actual words used,
for the purpose of stating the issue it may be said
generally that George S . Harris , the aggrieved employee
and member of the Workmen's Committee, called
Respondent' s Assistant Superintendent of Maintenance,
Fred Manly, a liar and reminded him that after death and
in the hereafter he would be held to account for his sins
and that Jack R. Gilliam, another member of the
committee , if not in the exact words at least in words of
like nature , repeated the accusation and the reference to
the hereafter.
Counsel supporting the complaint contends that this
having been a meeting called for the purpose of discussing
grievances, attended by members of the Workmen's
Committee on the one side and by management
representatives on the other , and the words spoken having
been connected directly with a grievance being processed,
the two employees uttering them were engaged in a
protected activity and consequently immune from
disciplinary action . Respondent , on the other hand,
contends that the utterance of these words was rank
insubordination which became known to the employees in
its refinery , thereby impairing Manly' s efficacy as a
supervisor and, not only were not protected for these
reasons but more importantly , were not seized upon by it
as a pretext for interfering with , restraining , or coercing
these employees in the exercise of their protected rights or
for the purpose of discouraging activities on behalf of the
Union.
This then is the issue: Under the particular facts of this
case and the circumstances surrounding the utterance of
the remarks , are Respondent ' s reprimand of one of these
employees and reprimand plus one-day suspension of the
other to be regarded as having been made (to quote from
the complaint) "[B]ecause employees Harris and Gilliam
joined , or assisted the Union and/or sought to bargain
collectively through representatives of their own choosing
CROWN CENTRAL PETROLEUM CORP. 325
and/or engaged in other concerted activities for the
purposes of collective-bargaining or mutual aid or
protection."
Prior to and again at the opening of the hearing,
Respondent made a motion for an order to dismiss or in
the alternative to stay proceedings pending arbitration.
That motion was denied and the hearing proceeded on the
merits . Now that I have heard the entire case on the
merits, it may be that the wiser course here would have
been to reserve decision on the motion and leave the way
open for alternate disposition in an arbitration proceeding
in accordance with the contract . Inasmuch as the motion
was denied and I am now in a position to dispose of the
case on the merits , I see no reason to reconsider my prior
denial and for that reason adhere to it.
Now, after carefully considering all the testimony given
at the hearing , relying in great part on my observation of
the witnesses during the time that they gave that
testimony , and carefully considering the oral argument
made by Counsel supporting the complaint at the
conclusion of the hearing and the posthearing brief
submitted on behalf of the Respondent by its attorneys,
and upon the whole record , the following are my
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER AND JURISDICTION
Crown Central Petroleum Corporation is, and at all
times material herein has been , a corporation duly
organized and existing under and by virtue of the laws of
the State of Maryland. It operates numerous facilities,
one of them being a refinery in Houston , Texas, the only
location involved in this proceeding . It is an employer
engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Labor Management Relations Act, as
amended . The National Labor Relations Board has
jurisdiction of this proceeding and of the Respondent.
11. THE LABOR ORGANIZATION INVOLVED
Oil, Chemical & Atomic Workers International Union,
AFL-CIO-CLC, Local 4- 227, in this proceeding called
Oil, Chemical & Atomic Workers International Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Sometime prior to May 9 , employee George S. Harris
became embroiled in a discussion or disagreement as to
whether Assistant Superintendent of Maintenance Fred
Manly could require him to work overtime within the
meaning of the collective-bargaining agreement between
the Union and Respondent . Harris took the position that
overtime was not mandatory but was optional with the
employee . Manly took the position that he could require
Harris to work overtime . The discussion or disagreement
culminated in Harris' working overtime but there is
disagreement as to the manner in which this came about.
On the part of Harris it is contended that , toward the end
of the discussion, Manly first merely requested him to
work overtime but, following a maneuver to crystalize the
situation , Manly ordered him to work overtime . Manly,
on the other hand, took the position that at no time did
he actually order Harris to work overtime - he merely
asked him to work overtime.
The distinction sought to be brought out by the two
versions is, in my opinion , hardly worth being called that.
I perceive no distinction between an employee being asked
by his supervisor to do something and being ordered to do
it. The employee should do it in either case . The request
does not have to be labeled as an order . The request is an
order . Thus, the seed of this case was illborn . (One should
not overlook a distinction which might arise between an
inquiry whether an employee is willing to work overtime
and a request that he do so. This is not the situation with
which we are confronted here.)
The alleged unfair practice with which we are
concerned is not whether Harris wrongfully was ordered
to work but whether Harris and Gilliam were within the
protection of the law when they called Manly a liar and
warned him of the consequences he would suffer in the
hereafter when Manly insisted that he had requested
Harris to work overtime while Harris contended that
Manly had ordered him to work overtime.
In any event , during the course of the meeting, which I
repeat was not concerned solely with this particular
overtime question , almost everything involved in this case
happened and it happened in just a few minutes. There are
several versions of what happened-
Harris' version : Harris addressed Manly saying, "Mr.
Manly, do you deny telling me at that time that you
ordered me to work overtime today, ten hours Saturday
and ten hours Sunday?" Manly replied, "I didn't order
you to work overtime " Harris told him, "Mr. Manly, I
have known you a long time, and I have worked with you
and I have grown to respect you One of these days you
are going to die and you are going to go to hell just as
sure as you are sitting there." Following the meeting
chairman's admonition that if any more remarks like that
were made, the meeting would be adjourned, Committee
Member Gilliam said, in response to the meeting
chairman's reply to his protest, "Well, we don't have to
get to talking about a man's hereafter." Gilliam then said,
"Well, we have always been taught if we don't do right
while we are on this earth we are going to go to hell when
we die." Manly then asked Gilliam, "Do you think I am
lying?" Gilliam answered, "Fred, I don't know if you are
lying or not, but I know you are capable of it, and I have
learned lots of things here in the last few months " The
meeting was then adjourned.
Committeeman Gilliam 's version : The matter of the
overtime was brought up and Gilliam "asked [Manly] if
he ordered Mr. Harris to work overtime and under what
provision of the contract " There was some discussion
about the clause in the contract and the manner in which
it came to be inserted. This was followed by some
reference to what had happened at the time the overtime
i..sue first arose. Gilliam then addressed Manly and said,
"Well, now, you are saying that you did not order George
to work overtime but at the same time you are telling me
you have the impression that you have a right to." Then,
following some remarks by Harris, Harris addressed
Manly directly and said, "Mr. Manly, do you remember
me asking you if I was -- had a choice of working
overtime in this meeting," to which Manly replied that
"he didn't order him to work overtime." Harris then
inquired of Manly whether he remembered another
committee member "telling [him] that if [he] wanted
[Harris ] to work to order [Harris] to do so." Manly's
answer was , "No, I do not." This was followed by
additional conversation which was sought to be concluded
by Gilliam with a remark to Harris to the effect that
Manly had told his side of the story and that was all that
they had asked him. At this point, "George [Harris] kind
of put his head down toward the table [and said] Mr.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manly, I have known you for a long time. I have
respected you But I am afraid when you die you are
going to hell." Gilliam made the reservation that these
words might not have been the exact words but they were
almost exact These words were followed by the meeting
chairman's statement that if there was going to be any
more language of that sort, the meeting would be
adjourned. This prompted Gilliam to tell the chairman,
"Now, Harry, you know and I know that we have all
been taught that if we commit a sin on earth and if we
don't pay for it we are going to pay in the hereafter."
Manly then, in view of this remark, turned to Gilliam and
said, "Are you calling me a liar" Gilliam replied, "No,
Mr Manly, I am not calling you a liar, but, I think you
are." The meeting was then adjourned.
Union Committeeman Garrett 's version : Following a
first session in the morning, the grievance meeting was
resumed after lunch and the meeting chairman addressed
Gilliam telling him "that the ball belonged to him."
Gilliam asked Manly "if he had instructed Mr. Harris to
work overtime under threat of penalty if he didn't, and
Mr Manly denied that he had so stated that to Mr.
Harris [claiming] that he had requested him to work
overtime that he did not threaten him with
disciplinary action if he refused to work, that they had
asked him to work overtime . . Mr Harris told him
that he had threatened him with disciplinary action."
Then, after some "bantering" back and forth between
Harris and Manly, Mr. Harris made the statement, " `the
old man is getting old,' referring to Mr. Manly, and that,
'one of these days he is going to die and he is going to
have to account for his lies or for his lying,' . ." This
was followed by the meeting chairman's statement that
the meeting would be adjourned if such talking continued.
This prompted Gilliam to tell the committee chairman,
"If you are telling us that we cannot tell a man that he is
lying when he is lying, I am telling you now the man is
lying." The meeting then was adjourned.
Union Committeeman Bradley's version : After Manly
came into the meeting Harris asked him "[I]f he had
asked him to - if he told him that he must work
overtime on this ten-hour schedule they had been working,
and Mr Manly said, 'No, George, I didn't tell you you
had to work I asked you if you would work ' " The
question was repeated by Harris and Manly again said,
"George, I said that I asked you to work. I didn't tell you
that you had to work " George [Harris] said, `Well, the
old man is getting old and when he dies he is going to
have to answer for his lying ' " Then, following the
committee chairman's remonstrance that he would not
tolerate this sort of talk, Gilliam told him, "Well, Harry,
you mean we can't tell a man he is lying when we know
he is lying? I am telling you I think the man is lying."
This caused the committee chairman to close the meeting
The foregoing are Union Committee Members'
versions . The Respondent' s witnesses' versions were not
too far different except that wherever the Union's
witnesses had said that the words "lie" or "lying" were
used the adjective "damn" or the imprecation "G-d
damn" prefixed the word "lie."
It would not be two difficult, in casual reliance on cases
such as Bettcher Manufacturing Corporation , 76 NLRB
526, N. P. Nelson Iron Works , Inc., 80 NLRB 788, Mate
Holt Company , 161 NLRB 1606, or my own decision in
Huttig Sash & Door Company , Inc., 154 NLRB 1567, or
even Thor Power Tool Company, 148 NLRB 1379, to
say that this is a clear case of protected conduct during a
grievance proceeding and that Respondent wrongfully
reprimanded both Harris and Gilliam and suspended the
latter for one day . Indeed , at the conclusion of the
hearing , in suggesting to Respondent ' s attorney what I
would like him to cover fully in his brief, I said:
I don' t think any employee ever should talk to any
supervisor in an insubordinate manner , and I think that
he ought to be disciplined or fired if he does. But when
there is a grievance proceeding we have advocates and
parties, and on one side you have the union
representatives who are advocates , and on the other
side you have company representatives , who are
advocates.
At this particular time they are advocates . They are
not masters and servants . They are advocates.
As far as the parties are concerned , you have one
party against another party. You don't have a
master-servant relationship . You have a litigating
relationship.
So that the ordinary rules of master and servant do
not apply because it's not a master -servant relationship
there . It's a relationship of litigation in adversary
proceedings.
On the one hand , the advocacy, on the other hand
the accused and the party who is doing the accusing.
Not master and servant.
The company does have disciplinary powers, but its
disciplinary powers should be exercised only in
connection with the exercise of the master - servant
relationship , not with respect to events which may
occur during litigations , whether they be grievance
litigations or Foard litigations or any other kind of
litigations.
If the party who is not an employee engaged in the
most reprehensible conduct , the employer couldn't fire
him because he is not an employee . The employer
might go to court and sue him for liable [libel] or
something like that or malicious prosecution. Just
because a man happens to be an employee doesn't
change his status . He is still a party or is still an
advocate . And this is the thing you have got to
overcome in my mind or [in] the cases to which you
[will] refer you have got to overcome.
I have concluded that the matter is not as simple as all
that after pondering over this entire situation in the long
time which has elapsed since the conclusion of the
hearing . I am in total agreement with the remark of the
Trial Examiner in Thor Power Tool Company (above, at
1387):
It is not surprising that no case can be found
squarely controlling the result here , for it is the essence
of these "balancing" cases that the balance must be
struck in each case with an eye to the special facts
presented by it. What are the special circumstances
relied on by the parties here, and what weight should be
accorded them?
There are special circumstances here which have a
bearing upon what decision should be made.
As we are requested so frequently to do, I have
examined , upon due notice to all counsel , Respondent's
labor history before this Board . All that I have been able
to find out about it throughout the entire life of the Board
is an alleged 8(2) case combined with a representation
case in which the unlawful labor practice charge was
dismissed , 24 NLRB 217, and a representation Case, 57
NLRB 13, following which the Union , Charging Party
here, was certified in February 1945, for Respondent's
Pasadena plant . I assume that during all the intervening
years it has been the bargaining representative of
CROWN CENTRAL PETROLEUM CORP.
Respondent ' s employees there . Moreover , during all the
intervening years not one unfair labor practice charge has
been decided against Respondent and, for all I know,
none has been filed.
Moreover , it appears that in accordance with the
collective-bargaining agreement between Respondent and
the Union , there is a long -established Workmen's
Committee which represents the employees "in collective
bargaining and grievance negotiations with the
Company." Employees serving on this committee are
"compensated by the Company for all scheduled working
time lost due to" collective-bargaining and grievance
negotiations . Jack Gilliam , one of the Union witnesses in
this proceeding , first went on the committee in 1955.
Others on the committee have served for varying times.
There is no suggestion that any member ever has been
brought to task or been the victim of discrimination or
retaliation by reason of his serving on the committee.
Grievances have been heard by a permanent arbritrator.
The Union' s own attorney , on at least one occasion,
thought it wise to caution participants in such a
proceeding against intemperate conduct . While it is
entirely possible that such cautioning was a tactic to make
a good impression on the arbitrator , it appears
nevertheless that restraint , as opposed to belligerency, was
the accepted and recognized desirable pattern for relations
between the Company and its employees.
The particular meeting at which the alleged offensive
conduct occurred had been conducted calmly and without
heat or rancor . There was no marked excitement. The
accusations of lying and promises of retribution in the
hereafter are claimed by the Union witnesses to have been
made coolly and calmly with deliberation . If that is so,
then the remarks must have been coldly intentional.
I had the opportunity to observe Fred Manly, the
supervisor , who had been accused of lying and warned to
beware of what would happen to him in the hereafter. He
seemed to me to be a mild -mannered , soft-spoken, quite
elderly man , far from robust in appearance . Regardless of
what Harris' view of whether the word "order" or
"request" had been used , there was no reason because of
the manner in which this meeting was being conducted or
the historical pattern of previous meetings to call this
mild-appearing person a liar and to remind him that he
had not long to live and would pay for his sins in the
hereafter . Additionally , there was no reason for Gilliam,
who had no personal knowledge of the facts, to echo
Harris and , without such personal knowledge , himself to
accuse Manly of having lied.
Calling Fred Manly a liar seems indeed to have been
surprising and shocking to employees in the plant who,
from the way I understood the testimony on hearing it
given by the witnesses who testified in this connection, had
regarded him with great respect and had learned of the
accusation with astonishment and awe.
There just does not appear to have been anywhere in
this case or in all 23 years of Respondent ' s relations with
the Union and its employees , any union animus . In fact, it
appears to the contrary. Certainly Gilliam and Harris
327
(and presumably all other Workmen's Committee
Members) were not disciplined because they participated
in grievance proceedings or in the proceeding out of which
this case arose . Equally certain it is that the disciplinary
action taken against them was not pretextual for the
purpose of interfering with their functions as members of
the Workmen's Committee or any other right protected
under the law.
And so, regardless of the usual rule which should not
be permitted to become a per se rule and my views as
expressed in Huttig Sach & Door (above) and the remarks
I made at the close of the hearing (quoted above), this
case appears to be a "sport" or of a maverick nature. Its
disposition should be limited solely to its own peculiar
facts and I hardly would deem it suitable as a precedent
for weakening or undermining the rule of Bettcher (above)
or Nelson Ironworks (above). This particular case just is
not one which requires a finding that there has been any
interference with any protected right or any conduct
intended and calculated to discourage membership in the
Union.
Now, therefore, upon the whole record, the following
are my
Conclusion of Law
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Oil, Chemical & Atomic Workers International
Union , AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent did not discipline employees Harris
and Gilliam because they "joined , or assisted the Union
and/or sought to bargain collectively through
representatives of their own choosing and/or engaged in
other concerted activities for the purposes of collective
bargaining or mutual aid or protection."
4. Respondent did not interfere with , restrain , or coerce
its employees "in the exercise of rights guaranteed in
Section 7 of the Act and (did not) engage in, (nor is it)
engaging in unfair labor practices affecting commerce
within the meaning of Sections 8(a)(l) and 2 (6) and (7) of
the Act."
5. Respondent did not discriminate and is not
discriminating "in regard to hire or tenure or terms or
conditions of employment of its employees" and
consequently did not engage in "unfair labor practices
affecting commerce within the meaning of Section 8(a)(3)
and Section 2(6) and (7) of the Act."
Upon the foregoing findings and conclusions , and the
entire record , and being of the opinion that the
Respondent is not engaged in and is not engaging in the
unfair labor practices alleged in the complaint, the
following is my recommended
ORDER
It is hereby ordered that the complaint in this case be,
and the same hereby is, dismissed in all respects.