Crystal Princeton Refining Co.

National Labor Relations Board - Board Decisions

Feb 24, 1976

222 N.L.R.B. 1068 (N.L.R.B. 1976)

1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crystal Princeton Refining Company and Internation-
al Chemical Workers Union , AFL-CIO. Cases 25-
CA-6481 and 25-CA-6515
February 24, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On May 27, 1975, Administrative Law Judge John
G. Gregg issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief and the General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs,
and finds merit in certain of Respondent's excep-
tions. Accordingly, we affirm only so much of the
Administrative Law Judge's rulings, findings,' and
conclusions as is consistent with our Decision and
Order herein.
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(3) and (1) of the Act
by constructively discharging Eugene Hale and un-
lawfully discriminating against him to chill any fur-
ther union activity which might have survived the
loss of the election by the Union. The Administrative
Law Judge further found that six employees, Mar-
shall, Pfeiffer, Schmitt, Strutton, Turpin, and Lee
Young, embarked on an unfair labor practice strike
on August 16, 1974, protesting the unlawful con-
structive discharge of employee Hale; that on Sep-
tember 5, 1974, the employees made an uncondition-
al request for reinstatement; and that the
Respondent unlawfully refused to reinstate these em-
ployees. We find merit in Respondent's exceptions to
these findings.
The Respondent operates a facility in Princeton,
Indiana, where it is engaged in the refining, sale, and
distribution of petroleum products. The Internation-
al Chemical Workers Union, AFL-CIO, conducted
an organizational drive in June 1974 at this facility,
but failed to obtain majority support in an election
conducted on August 9, 1974.
1 As the Respondent is willing to accept the findings of the Administra-
tive Law Judge that the Respondent violated Sec. 8(axl) of the Act by
various admitted statements and acts by Dana O'Connor , manager of its
Princeton refinery, we adopt these findings pro forma.
Chief Operator Eugene Hale worked at
Respondent's Princeton, Indiana, refinery from
about January 7 to August 15, 1974, Prior to this,
Hale had performed the same work for R. J. Oil Re-
finery Company for about 16 years at the same
premises. R. J. Oil had been shut down for 4 years
prior to the Respondent's starting its operation. Hale
worked all three shifts on a, rotating basis for Re-
spondent, and was earning $5.34 per hour on August
15. On August 9, Hale voted a challenged ballot.
Respondent operates several other related facilities
besides the Princeton refinery in connection with its
business. One related facility is a depot located at
Sebree, Kentucky, which is a station for the receipt
and shipment of crude oil. The Sebree facility is one
of three such stations in Indiana, Illinois, and Ken-
tucky subject to the authority of Dana O'Connor,
manager of the Crystal Princeton refinery.
On Tuesday, August 13, O'Connor received a call
from C. L. Leesemann, the manager, refining and
manufacturing, of the Crystal Oil Company in
Shreveport, Louisiana. In that capacity, Leesemann
had jurisdiction over the Crystal Refining operation
in Princeton, Indiana. Leesemann called O'Connor
on August 13 to discuss a significant problem at the
Sebree facility which had come to management's at-
tention. Substantial shortages had been detected in
deliveries of crude oil to the Sebree facility. Account-
ing records on receipts of the crude oil at the refinery
did not correspond to the crude oil reportedly deliv-
ered to Sebree. The shortages amounted to some 500
barrels of crude oil which, at $10 per barrel, repre-
sented a loss to Respondent of $5,000. It was suspect-
ed that a large portion of this shortage was due to the
delivery of water rather than oil to the Sebree facility.
In order to correct this problem, it would be neces-
sary to send someone to Sebree to doublecheck the
drivers' deliveries and the accuracy of their delivery
reports. On August 13, Leesemann ordered O'Con-
nor to send someone to Sebree. In response to this
order O'Connor decided to send Hale on the Sebree
assignments. O'Connor stated his reasons for choos-
ing Hale for that temporary assignment as follows:
I knew first that I had to have a man that
could gauge a tank and make the necessary cal-
culations.
.I thought about who I should send and it
came to my mind that Hale had first asked for a
reduction in his job, that over the past few weeks
he had become demoralized to the point that he
was really not functioning properly in his job,
and I decided on the basis of that to send him
down there to handle this particular problem,
because I knew that he had the expertise to do
the job and he had done so many, many tasks
222 NLRB No. 167
CRYSTAL PRINCETON REFINING CO. 1069
for me during the seven or eight months that I
had worked with him and never had he failed on
one, that I knew that he could do the job.
I felt like a couple of weeks away from the
hustle and bustle of the unit would give him the
opportunity to think things out, realize that the
plant was going to run and that hoping that by-
gones would be forgotten and he would return
and become again a productive employee.
I felt like this additional responsibility, the op-
portunity to have a new schedule, work straight
days, which is the dream of every operator, to
work straight days rather than a rotating shift,
be off on Saturdays and Sundays, I knew that he
was fond of dancing, having gone out with him
on- occasions, and that would give him the op-
portunity to do that, and I felt like he would
return in a couple of weeks a different man and
would have probably solved our problem for us
within a few days.
That's the reason that I chose Mr. Hale.
O'Connor called Hale on the evening of August
13, and instructed him not to report for the "grave-
yard shift" that night, as originally scheduled, but to
report to the refinery at 7 a.m. on August 14 to ac-
cept a temporary assignment. When Hale came in on
Wednesday morning, O'Connor told Hale that he
was to work at Sebree, Kentucky, a receiving station,
for the next 2 weeks. O'Connor also told Hale he
would be temporarily assigned to help the gauger at
Sebree. Hale left the Princeton refinery between 8:30
and 8:45 a.m., and would have arrived at Sebree at
approximately 9:30 or 10 a.m. He stayed at Sebree
an hour or so, during which time he had very little
conversation with the regular gauger. Apparently no
delivery trucks arrived at Sebree during this short
time and only one truck picked up some crude oil.
Hale left Sebree about 11:15 a.m. and returned to the
refinery. Hale met with O'Connor and told O'Con-
nor that he (Hale) didn't want the Sebree job and
that Hale wanted his regular job as operator. O'Con-
nor said, "No, Gene. Let's just think about it. You go
home and think about it and come back in the morn-
ing." The next morning, August 15, Hale went to the
Respondent's control room to work on his operator
shift. O'Connor called Hale into the office and asked
Hale if he (Hale) was going to Sebree, the temporary
assignment. Hale said, "No, Dana. I want to work
here in the plant. My job is in the plant and I want to
work my job here at the plant." O'Connor said,
"Well, Gene, that's all there is for you, that's it and
that's all." Hale laid his hardhat on the desk and left.
On the foregoing -facts the Administrative Law
Judge found, that Hale was constructively discharged
by- the Respondent "because Hale joined and assist-
ed the Union and engaged in union and other pro-
tected concerted activity." The Administrative Law
Judge based his findings on: (1) the timing of the
assignment of Hale to Sebree, a week after the elec-
tion; (2) the onerous nature of the assignment; (3)
the discriminatory application of the Respondent's
policy on temporary assignments vis-a-vis Hale; (4)
the crediting of Hale's version of his discussions with
O'Connor that O'Connor told Hale, "Well there is
trouble brewing in the plant and I'm going to send
you away for awhile"; and (5) the manner in which
the assignment of Hale to Sebree by O'Connor was
effected.
We do not agree with the Administrative Law
Judge's conclusion that the Respondent discriminat-
ed against Hale by transferring him temporarily from
Princeton to Sebree and thereby causing the "con-
structive discharge" of Hale when he refused to re-
port on the second day to Sebree. There are two ele-
ments which must be proven to establish a
"constructive discharge." First, the burdens imposed
upon the employee must cause, and be intended to
cause, a change in his working conditions so difficult
or unpleasant as to force him to resign. Second, it
must be shown that those burdens were imposed be-
cause of the employee's union activities. In our judg-
ment, the record, on balance, does not demonstrate
that O'Connor wanted Hale to quit or that he was
motivated by Hale's limited union activities in tem-
porarily assigning him,to Sebree, or that the duties
were difficult or unpleasant.
The record shows no union activity by Hale be-
yond attending an organizational meeting with 12
other employees and signing an authorization card.
Although it is undisputed that O'Connor told Hale
that there was trouble at the-plant, we do not share
the Administrative Law Judge's belief that the "trou-
ble" must be equated with the employees' organizing
activities. Even assuming that the friction between
Hale and some of the other employees, which influ-
enced _O'Connor's decision, grew out of the unsuc-
cessful organizing campaign, that is not the equiva-
lent of a discriminatory motivation so long as the
Respondent's intent was solely to ease that friction
and not to punish Hale or impair its employees' exer-
cise of their rights under the Act.
It is undisputed that the Respondent was legiti-
mately concerned over its problem at the Sebree fa-
cility and required an experienced and capable em-
ployee to determine its cause. There is no claim that
the work at Sebree was onerous or that the drive be-
tween Princeton and Sebree on company time for a
2-week period was either physically or emotionally
impossible for Hale. Although the Administrative
Law Judge concluded that the Sebree assignment
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was onerous because of the driving required, Hale
raised no objection to O'Connor on that basis. It ap-
pears that Hale's objection to the temporary assign-
ment was based on his belief that there was no work
for him at Sebree and that he preferred his work at
Princeton. However, the. scant time Hale remained at
Sebree was not sufficient to demonstrate that there
was no work for him there.
Hale's salary was not affected by the temporary
transfer, and O'Connor's reluctance to hold Hale to
his refusal to accept the assignment and attempts to
persuade Hale that there were advantages to the
transfer also militate against the conclusion that the
Respondent was seeking Hale's resignation. Unlike
the Administrative Law Judge, we do not find that
the record supports the conclusion that the Respon-
dent had a policy of permitting employees to refuse
temporary assignments subject only to the caveat that
they would not be offered other assignments in the
future.-
A preponderance of the evidence on the record as
a whole does not indicate that Hale's temporary as-
signment to Sebree was discriminatorily motivated,
that the work at Sebree was difficult or unpleasant,
or that the Respondent sought to induce Hale to re-
sign. In order to find that Hale had been construc-
tively discharged, a contrary resolution of each of
those conclusions would be necessary. Accordingly,
we shall dismiss that allegation of the complaint.
Regarding the strike, the record establishes that on
August 16, 1974, six employees, Marshall, Pfeiffer,
Schmitt, Strutton, Turpin,-and Lee Young, met first
with O'Connor and later with Leesemann. The gist of
these meetings related to the status of Hale who was
no longer working at the Princeton refinery. The em-
ployees asked O'Connor to take Hale back, and
O'Connor refused.
The following morning these same employees met
once again with O'Connor in his office. At that time
they asked whether Hale was going to be rehired.
O'Connor informed them that he had no intention of
rehiring Hale. There was some -discussion of prefer-
ential treatment accorded to O'Connor's son, who
had apparently walked off his job at the Princeton
refinery without a relief. At the close of the meeting
all six of the employees, one after the other, indicated
to O'Connor that if Hale was not coming back they
were leaving the refinery.
As the men left the office, employee Strutton
opened a valve on the Respondent's machinery.
There is substantial conflict as to which valve was
opened at this time. Strutton, corroborated by Beloat
and Marshall, claims that it was the dry end valve;
O'Connor claims that he saw a different valve being
opened. The employees then left the refinery.
On September 5, 1974, a letter signed by all six of
the employees was sent to O'Connor. The letter re-
quested that they be reinstated to their jobs and
made whole. On the same day the employees met
with O'Connor and requested that they be returned
to their old jobs. They were told that their jobs had
already been filled and they therefore could not get
their old jobs back. The Administrative Law Judge
found that the six men were engaged in an unfair
labor practice strike on August 17, 1975, and his
remedial order reflects this finding. The Administra-
tive Law Judge ordered that the six be reinstated
with full backpay from the date of their uncondition-
al offer to return to work.
As noted above, we have found that Hale was not
"constructively discharged" resulting in an unfair la-
bor practice but that he quit his employment, rather
than report to Sebree. The six men who left their
employment when O'Connor refused- to reemploy
Hale were economic strikers, entitled only to the
rights attached to that status. Those include the right
to be reinstated to the same or substantially equiva-
lent positions only as openings occur therein. The
record in this case does not reveal that any such
openings arose after the time the men made their
unconditional offer to return`to work, or at any time
whatsoever. Therefore, the Respondent did not vio-
late Section 8(a)(1) and (3) of the Act when it re-
fused, on September 5, 1974, to reinstate the strikers
after they made unconditional, offers to return to
work. Accordingly, we shall dismiss this allegation of
the complaint. The strikers, however, as noted above,
are entitled to offers of reinstatement as openings
occur.2
THE REMEDY
Having found that Respondent has engaged in-
cer-tain unfair labor practices, we shall order it to cease
and desist therefrom and take certain affirmative ac-
tion which will effectuate the policies of the Act.
ORDER
Pursuant to Section 10(c) of the National . Labor
Relations Act, as amended, the National Labor Re-
2 In ourjudgment , the record fails to establish that the strikers engaged in
misconduct which would justify the Respondent in denying them reinstate-
ment
Chairman Murphy notes that this case involves economic , not unfair la-
bor practice , stnkers There is no complaint allegation or finding that, the
strikers unlawfully have been denied reinstatement and, hence , there is
nothing to remedy in this regard . Nor will she presume that Respondent will
not accord the strikers - their right to reinstatement, if requested , as jobs
become available for them Although the Board frequently issues such or-
ders when unfair labor practice strikers are involved, it ' has not done so'm
the past with respect to economic strikers.
CRYSTAL PRINCETON REFINING CO. 1071
lations Board hereby orders that Respondent, Crys-
tal Princeton Refining Company, Princeton, Indiana,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from: -
(a) Interfering with, restraining, and coercing em-
ployees in their exercise -of rights guaranteed under
Section 7 of the Act by- unlawful interrogation,
threats, and conferral of benefits. -
(b) In any like or related manner- interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed to 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) Offer those strikers who have made uncondi-
tional offers to return to work reinstatement-to their
former jobs or, if those no longer exist, to substan-
tially equivalent positions as openings become avail-
able. -
(b) Post at its plant at Princeton, Indiana, copies
of the attached notice marked "Appendix." 3 Copies
of said notice, on forms provided by the Regional
Director for Region 25, after being duly signed by
Respondent's representative, ;shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to -insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 25, in
writing, within 20 days from-the date of this Order,
what steps the Respondent has-taken to comply here-
with.
WE WILL NOT interfere with, restrain, or coerce
employees by interrogation, threats, or conferral
of benefits in order to discourage interest in or
in support of International Chemical Workers
Union, AFL-CIO, or any other union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed to them in
Section 7 of the National Labor Relations Act.
All ouremployees are free to become or remain, or
to refuse to become or remain, members of Interna-
tional Chemical Workers Union, AFL-CIO, or 'any
other union. -
CRYSTAL PRINCETON REFINING COMPANY
DECISION
JOHN- G. GREGG, Administrative Law Judge: This consol-
idated case was heard at Princeton, Indiana, on December
3-6, 1974, based on charges,duly filed in Case 25-CA-6515
on September 9, 1974, and in Case 25-CA-6481 on August
22, 1974, both by the International Chemical Workers
Union, AFL-CIO, and a consolidated complaint issued
-October 9, 1974, alleging that Respondent violated Section
8(a)(1) -and (3) of the Act. The General Counsel and the
Respondent, have filed briefs. -
Upon the entire record in the case, -including my obser-
vation of the witnesses, -and upon consideration of the
briefs, I make the following: -
FINDINGS OF FACT -
L ^ THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
IT IS FURTHER ORDERED that the complaint be dis-
missed ' insofar as it alleges violations of the Act not
found herein.
3 In' the event that this 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 a
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 offer those strikers who have made
unconditional offers to return to -work reinstate-
ment to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions
as openings become available.
The Respondent is-a Delaware corporation and a whol-
ly-owned subsidiary of Crystal Oil Company, a Delaware
corporation. The Respondent at all times material herein
has maintained -its principal office and place of business at
Princeton, Indiana, - herein called the facility, and is en-
gaged at said facility in the refining, sale, and distribution
of-petroleum products.
During the past 12 months, a representative period, the
Respondent in the course of its business operations refined,
sold, and distributed at said facility products valued in-ex-
cess of $50,000 which were shipped from- said facility di-
rectly to =States other than the State of Indiana.
At all times material herein, Crystal Oil Company has
-iiiaintained its principal office and place of business at
Shreveport, Louisiana, and other facilities in the State of
Texas engaged in the refining, sale, and distribution of pe-
troleum and related products. During the past 12 months, a
representative period, it sold and distributed products the
gross value of which exceeded $500,000,.and shipped and
transported products valued in excess of $50,000 from its
Texas facilities in interstate commerce directly to States
other than the State of Texas.
The Respondent and Crystal Oil Company are now and
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been at all times material herein each individually
and both collectively an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
International Chemical Workers Union, AFL-CIO, the
Charging Party herein, is a labor organization within the
meaning of Section 2(5) of the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Acts of Interference, Restraint, and
Coercion
The consolidated complaint alleges that the Respondent
has interfered with, restrained, and coerced its employees
in their exercise of rights guaranteed in Section 7 of the Act
by interrogation of employees concerning their own and
other employees' union membership, activities, and desires
at its facility by Dana O'Connor, Respondent's manager,
and other agents of the Respondent on or about June 14,
17, July 1, 29, and August 8, 1974; by threats by Dana
O'Connor on June 14 of plant closure and loss of benefits
if employees became or remained members of the Union or
gave support to it; by promises on July 1, of economic
benefits by Dana O'Connor to employees if they refrained
from becoming or remaining members of the Union or
gave support or assistance to the Union; and on June 14,
by Dana O'Connor, by promising and granting time off
with pay if they refrained from becoming or remaining
members of the Union or giving assistance and support to
it, thereby violating Section 8(a)(1) of the Act.
The record discloses testimony by Frank Hammond who
stated that he conducted an organizational drive by the
Chemical Workers Union in June 1974, at the
Respondent's facility; that on June 12, 1974, he met with
about 13 employees of the Respondent including Eugene
Hale, Jimmie Marshall, Jim Schmitt, Carl Strutton, Ken-
neth Turpin, and Eldon Lee Young. At this meeting Ham-
mond explained the history of the Union and gave the men
the choice of signing cards and going forward with an or-
ganizing campaign if they so desired. According to Ham-
mond all the 13 employees, signed cards and it was the
decision of the meeting that Hammond keep in touch with
the men through Jimmie Marshall and Carl Strutton.
The record also discloses that on the following day, June
13, 1974, the Union prepared and forwarded a demand for
recognition which was received by the Respondent on June
15, 1974. Subsequently, an election was held on August 9,
1974, which the Union lost.
The record also discloses a memo dated June 11, sent by
Dana O'Connor; manager of the facility, to C. J. Leese-
mann , vice president at the Shreveport, Louisiana, main
facility, indicating that O'Connor planned to promote one
of seven employees of excellent calibre to the job of refi-
nery superintendent. Included in the competition, he
named Beloat, Hale, Moore, Heinmer, Strutton, Turpin,
and Young.
The record discloses testimony by Dana O'Connor indi-
cating that the Princeton, Indiana, facility had not been
operative for several years, had been prepared by Univer-
sal Maintenance Company for takeover and operation by
the Respondent, that from early January 1974, through
July 1974, the Respondent started hiring new employees,
and hired Kenneth Turpin, Eugene Hale, Bob West, Pete
Young, Jerry Spare, Carl Strutton, Jimmie Schmitt, Jimmie
Marshall, Lee Young, and Jun Pfeiffer.
Jimmie Marshall testified that he signed a union card on
June 12, 1974, at the meeting at the Dream Motel, that
subsequently, on June 15, 1974, while Marshall was on the
11 p.m. to 7 a.m. shift, O'Connor talked with him in
O'Connor's office and asked him whether he had heard of
a couple of the guys being approached by the Union. Mar-
shall said he had. They then discussed benefits, pay, vaca-
tions, and privileges. Marshall stated that O'Connor told
him that the decision on the Union was entirely up to him.
Marshall testified further that O'Connor stated that he
felt that if the Union got in, "that they would possibly shut
the place down, and he said that he didn't want to lose his
job, and he asked me if I wanted to lose mine. I said no."
Marshall stated that O'Connor told him that if the
Union got in, "we would have to start from scratch and we
could possibly go from what we were making then, $4.82
days, $5.02 nights and $5.22 on the 11:00 to 7:00 a.m. shift.
We could possibly go down to $2.00 or $2.50 an hour."
Marshall testified further that about 2 weeks later, he
had another discussion with O'Connor in his office where
O'Connor congratulated him on his work, and again dis-
cussed benefits and the Union.
Marshall testified further that about a week before the
election on August 9, he talked with O'Connor in the con-
trol room where O'Connor asked him to talk with Dietrich
and with Trolson, an attorney for Respondent, which he
did. According to Marshall, Dietrich queried him as to why
the men wanted a union, asked who the leading union ac-
tivist was, and suggested that the men go to O'Connor with
any problems they might have.
In his testimony O'Connor stated that he first learned
about the union campaign and the initial union meeting of
June 12, 1974, at the Dream Motel, on June 14, 1974, about
6 p.m. O'Connor denied that he queried any employee on
June 14 or 15 as to why they wanted a union, denied that
he told employees on June 14 or 15, that if the Union got in
he might go down to $2 an hour, and denied telling them
that they might lose benefits. According to O'Connor, the
only two employees he talked to on June 14 were Beloat
and Riggs who came to his home about 6 p.m. on Friday,
June 14, and told him of the union activity at that time.
According to O'Connor he made none of the statements
attributed to him but stated only that "it's your decision to
make."
O'Connor stated that he did have Trolson, a lawyer, and
another individual, Dietrich, come to the plant about a
week before the election on August 9, 1974, and that these
men represented the Company when they talked with em-
ployees. According to O'Connor he knew these men held a
meeting with the employees, knew they had discussed ben-
efits, but was unaware they had discussed the possible clos-
ing of the plant if the Union got in.
O'Connor remembered talking to Hale and "just about
everybody else" on June 17 after the men returned from
their time off with pay. He stated that he spoke of the good
benefits at the plant and in speaking with each individual
employee, he closed with the statement that "the decision
is yours." He stated concerning these meetings that "I
CRYSTAL PRINCETON REFINING CO. 1073
don't recall asking anybody why they want a union," and
also stated, "As far as I know, I did not." He also recalled
telling the men that "As long as I am here, you will have a
job," and that this statement was made on June 14 and
possibly at other times.
There was testimony by Eugene Hale who stated that he
attended the union meeting with 12 other employees at the
Dream Motel and signed a union card on June 12. Accord-
ing to Hale on June 14, O'Connor gave the men the re-
mainder of the day and all the next day off with pay, that
on both these days the weather was good, whereas in the
past time off with pay had been linked to days when the
weather was bad.
Following this incident O'Connor summoned Hale to
the office where he told Hale he didn't think the Company
could afford a union, that if the Company got a union it
would more than likely shut the refinery down.
Hale testified that he was told by fellow employee Carl
Beloat that O'Connor had told Beloat that Hale and
Moore were the ringleaders of the union campaign, that
subsequently he, Hale, told O'Connor that there were 13
ringleaders. In his testimony Beloat essentially corroborat-
ed this testimony by Hale.
Hale testified that he attended the meeting with Trolson,
the Company's attorney, and Dietrich about a week prior
to the August 9 election in which Trolson and Dietrich
talked against the introduction of a union into the plant.
Hale stated that on August 9, he voted a challenged bal-
lot in the election.
There was testimony of record by Carl Beloat who stated
that in his initial interview by O'Connor, O'Connor asked
him what he thought about a union. When Beloat said he
wasn't for a union O'Connor told him that was what he
liked to hear. Beloat met with the other employees and
signed a union card on June 12, at the Dream Motel.
According to Beloat about 2 weeks later O'Connor told
Beloat in O'Connor's office that he had a couple of trou-
blemakers and Hale was one of them. Prior to the August 9
election O'Connor in his office told Beloat that the em-
ployees might be working for less money if the Union came
in and that O'Connor might close the refinery if the Union
came in.
There was testimony of record by James Schmitt who
stated that in his prehire interview O'Connor queried him
as to what he thought about a union. Schmitt attended the
meeting at the Dream Motel and signed a union card on
June 12. About 2 weeks later, according to Schmitt, O'Con-
nor in his office asked Schmitt about union activities and
stated that if a union came in it could mean closing the
plant down, working for less money, and/or cutting back
benefits.
Prior to the August 9 election, O'Connor talked with
Schmitt in the control room and according to Schmitt
O'Connor told him that the Company was considering
moving its Wisconsin operation to Longview, Texas, but
since Longview was having union problems the Company
was considering moving it to Princeton.
There was testimony of record by Carl Strutton who
stated that a short time after June 12, 1974, he spoke with
O'Connor in O'Connor's office where O'Connor told him
that he understood that employees were involved in a
union campaign, and wondered why a union was needed.
O'Connor told Strutton that the employees should take a
strong look at what they had, because if the Union came in
benefits would start from scratch.
Strutton testified that before the August 9 election,
O'Connor stated that he hoped that the Union did not get
in, and if it did, that the employees would have to start
from scratch regarding benefits, that wages might go down,
that a planned expansion at the Longview, Texas, facility
had been canceled because of union activity at that plant,
and that Longview might possibly be closed down.
The record reveals additional testimony by other em-
ployees essentially consistent relative to their discussions
with O'Connor, which essentially substantiates the fore-
going testimony.
Based on my observation of the demeanor of the wit-
nesses as they testified, I credit the versions of the discus-
sions advanced by employees Marshall, Strutton, Young,
Schmitt, Beloat, and Hale and I find that in the setting and
nature of these statements made by O'Connor, statements
by the general manager to his subordinates in the office,
clearly suggesting that should the employees succeed in
bringing a union into the plant benefits would be cut back,
plant expansion curtailed and possibly closed down, all in
my view clearly amounting to interference, restraint, and
coercion within the meaning of Section 8(a)(1) of the Act
and thereby violating Section 8(a)(1) of the Act. I have
considered but reject the Respondent's argument that be-
cause these discussions were conducted by O'Connor in a
friendly, refined, and gentlemanly manner they failed to
achieve a coercive effect. The coercion is inherent in the
characters, the setting, and in the statements which amount
to interrogation and veiled threats and constitute interfer-
ence with the employees' rights protected by Section 7 of
the Act. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969).
With respect to the grant by O'Connor of time off with
pay to the employees I am persuaded from the record that,
while the Respondent established that this practice pre-
vailed on certain occasions when the weather was bad, it is
clear that the incident herein involved the grant of time off
with pay at a time when good weather prevailed, and I find
that this benefit was conferred on the employees at a time
when the union campaign had clearly started and was ac-
complished to chill the employees' support for the Union.
B. The Alleged Acts of Discrimination Against Hale
The consolidated complaint alleges additionally that the
Respondent on August 15, 1974, unlawfully discharged its
employee Eugene Hale and has failed and refused to rein-
state Hale, and has discriminated against its employees by
said discharge and by transferring Hale from his work sta-
tion at Respondent's Princeton, Indiana, facility to
Respondent's Sebree, Kentucky , facility; all because Hale
joined and assisted the Union and engaged in union activi-
ty and other protected concerted activity in violation of
Section 8(a)(1) and (3) of the Act.
The General Counsel 's theory with regard to Hale is that
Hale was constructively discharged by the Respondent;
that is, he was transferred to a less desirable assignment
1074 DECISIONSOF NATIONAL LABOR RELATIONS BOARD
and then quit as the result of the undesirable nature of the
assignment to which he was unlawfully transferred. Re-
spondent answers that the assignment was proper, the posi-
tion to which he was transferred did not impose substantial
burdens on Hale, and that, in any event, the assignment
was only temporary. Furthermore, Respondent contends
that the selection of Hale, was based on bona fide indepen-
dent justification, and was not accomplished to induce
Hale to quit as a result of his union activities.
Eugene Hale has worked as a chief operator -at
Respondent's Princeton, Indiana, refinery starting in Janu=
ary 1974. Prior to this, he had done the same work, for
16 years, for R. J. Oil Refining Company at the-same
premises. It is undisputed, at least for the period prior to
the union election, that Hale was an excellent worker. In-
deed Dana O'Connor testified that one of the reasons he
chose Hale for the special assignment was the fine job-,Hale
had done on so many other. tasks. According to Hale he
voted a challenged ballot at the election on August 9, 1974.
On August 13, 1974, O'Connor called him and told him
to report to work the following morning, instead of that
night as scheduled. When Hale arrived at work the next
morning he was told by O'Connor to report to work at the
Sebree, Kentucky, facility-about 35 miles from Princeton,
where he was to work for the following 2 weeks.
Q. What was said on that occasion between O'Con-
nor and yourself?
A. Well, he wanted me -to go to Kentucky and
work, Sebree, Kentucky, or some place down there.
Q. Did he indicate whether it would be for a short
time or a long time or did he say any thing about how
long? -
A. He said a couple of weeks.
Q. What did you say?
A. I asked him why, that my job was there in the
plant and I wanted to know why.
He said, "Well there is trouble brewing in the plant
and I'm going to send you away for a while."
I told him that if there is trouble in the plant he
knows more about it than I do.
According to Hale when he arrived at Sebree he "sat most-
ly," and that aside from being told by O'Connor that he
was to "gauge tanks or something about oil rigs with Mr.
Oeth, I believe was his name" Hale received no instruc-
tions as to his duties. Hale then returned to Princeton.
Hale's testimony indicates that he arrived at Sebree
around 8:30 or 8:45 a.m. and left about 11:15 a.m., re-
turned to the Princeton facility and talked with O'Connor
about 2:45 p.m.
He told O'Connor he didn't want the Sebree job, he
wanted his regular job that he was hired to work in. O'Con-
nor told him "You are going to work down there"; O'Con-
nor ;told him about the advantages of the Sebree assign-
ment and to go home and think it over.
The next day, Thursday the 15th, Hale reported to the
control room at Princeton, refused to go to Sebree, and was
told by O'Connor "Well that's all there is for you, that's
it." Hale then left.
Subsequently, Hale was advised by Leesemann that he
would never work at Crystal Refinery again because he
had quit. Hale then told his side of the story to Leesemann,
that he was discharged by O'Connor for refusing to go to
Sebree.
Based-on my observation of Hale as he testified I credit
his testimony as to discussions and actions relating to his
assignment to Sebree by O'Connor and surrounding the
termination of his employment with the Respondent. I find
that the Respondent discriminated against Hale by trans-
ferring Hale, albeit temporarily, from Princeton to Sebree,
and by discharging him all because he joined and assisted
the Union and engaged in union and other protected con-
certed activity.
In so finding I have taken into account the following
elements:
First, the timing of the assignment of Hale to Sebree
which came promptly a week after Hale cast a challenged
ballot in the election and the Union lost the- election.
Secondly, the onerous nature of the assignment. While
much was made by Respondent of the advantages presum-
ably to be achieved by Hale should he accept the Sebree
assignment, I am not convinced on this record that any
advantage would result, or that if it would it could possibly
outweigh the obvious disadvantage of traveling 70 addi-
tional miles each day the temporary assignment continued.
While the Respondent may consider the Sebree assignment
a choice one it is clear on this record that it was onerous
and undesirable where Hale was concerned.
Thirdly, the discriminatory application of the
Respondent's policy on temporary assignments vis-a-vis
Hale. In this connection the record establishes indeed by
Respondent's management that the employees were free to
refuse an assignment but would have to accept the conse-
quence of receiving no further assignments . However, in
the case at hand the Respondent changed this policy or
applied it in a discriminatory inflexible manner so as to
deny Hale the choice of refusing the assignment.
Fourthly, crediting Hale's version of his discussions with
O'Connor, that O'Connor told Hale, "Well there is trouble
brewing in the plant and I'm going to send you away for a
while," it is clear to-me that the motivation for assigning
Hale to Sebree was based on Hale's involvement in the
union activity at the plant.
Finally, the manner in which the assignment of Hale to
Sebree by O'Connor was effected. While the Respondent
provided testimony indicating that an investigation- of the
Sebree facility was under way and that the Respondent
required manpower at Sebree to assist in this investigation,
it is clear that Hale at the time of the assignment was nei-
ther instructed specifically in his role in the alleged investi-
gation nor was he in fact given specific work to accomplish
when he arrived at Sebree. I am convinced that he was
primarily shipped off to Sebree to get him out of Princeton
in order to chill any further union activity which might
have survived the loss of the election by the Union.
For all the foregoing I am convinced that by assigning
Hale to Sebree and subsequently forcing him to quit the
Respondent constructively discharged Hale and unlawfully
discriminated against him in violation of Section 8(a)(3) of
the Act and thereby interfered with, restrained, and
coerced its employees-in their activities protected by Sec-
CRYSTAL PRINCETON REFINING CO. 1075
tion 7 of the Act in violation of Section 8(a)(1) of the Act
as charged in the complaint.
Finally, while the Respondent contends and introduced
evidence indicating that the "trouble brewing at the plant"
was a significant friction developing between Hale and
some of the younger operators , for whom Hale had respon-
sibility for training , it is obvious to me first that such fric-
tion had_ its roots in the union campaign , interwoven with
the union drive. Secondly, while it had , been a matter of
knowledge to the Respondent for some time, it went with-
out action -by O'Connor , no warning was given to Hale but
the friction was ignored completely by O'Connor when he
sent Hale 's name forward as one of a select few to be con-
sidered for top management at the facility. I accordingly
reject this contention.
C. The Alleged Refusal To Reinstate the Six Unfair Labor
Practice Strikers
The complaint finally alleges that from August 16, 1974,
to about September 5, 1974 , employees Jimmie Marshall,
James Pfeiffer, Lee Young, Carl Strutton, Turpin, and
James Schmitt ceased work concertedly and went on strike,
that said strike was caused by the unfair labor practices set
forth hereinabove , and that on or about September 5, 1974,
said employees made an unconditional offer to return to
work and that the Respondent has failed and refused to
reinstate said employees because of their union or other
protected concerted activity , in violation of Section 8(a)(1)
and (3) of the Act.
On August 16, 1974 , six employees, Marshall, Pfeiffer,
Schmitt, Strutton , Turpin, and Lee Young, met first with
O'Connor, later with Leesemann. The record establishes
that the gist of these meetings related to the status of Hale
who was no longer working at the Princeton refinery. The
employees asked O'Connor to take Hale back , O'Connor
refused.
The following morning these same employees once again
met with O 'Connor in his office . At that time they asked
whether Hale was going to be rehired . O'Connor informed
them that he'had no intention of rehiring Hale. There was
some discussion of preferential treatment accorded to
O'Connor's son, who had apparently walked off his job at
the Princeton refinery without a relief. At the close of the
meeting all six of the employees, one after the other, indi-
cated to O'Connor that if Hale was not coming back they
were leaving.
As the men left the office employee Strutton opened a
valve on the Respondent 's machinery . There is substantial
conflict as to which valve was opened at this time . Strutton,
corroborated by Beloat and Marshall , claims that it was
the dry end valve , O'Connor claims that he saw a different
valve being opened. The employees then left the refinery.
On September 5, 1974, a letter signed by all six of the
employees was sent to O'Connor. The letter requested that
they be reinstated to their jobs and made whole. On that
same day the employees met with O'Connor and requested
that they be returned to their old jobs. They were told that
their jobs had already been filled and, therefore they could
not get their old jobs back.'
The General Counsel contends that the six employees
embarked on an unfair labor practice strike on August 16,
protesting the unlawful constructive discharge of employee
Hale, and that on September 5, 1974, the employees made
an- unconditional request for reinstatement , and that the
Respondent unlawfully refused to reinstate these employ-
ees.
The Respondent contends that Hale was not unlawfully
discharged and the six employees are not unfair labor prac-
tice strikers entitled to reinstatement . Respondent also ar-
gues that the employees did not make an unconditional
request for reinstatement , and did not go on strike, that
they did not act in concert, and that even if the six employ-
ees were strikers they exhibited such disloyalty to the Em-
ployer that they forfeited any and all rights to reinstate-
ment . The alleged acts of disloyalty were divided into four
categories by the Respondent : (1) coercion and threats
against other employees ; (2) failure of the chief operators
to properly perform their job function of training less expe-
rienced operators ; (3) walking off the job on August 17
without adequate safeguards; and (4) the alleged act of
sabotage committed by Carl Strutton by opening the valve.
It is' axiomatic that if a strike arises from unfair labor
practices committed by the-employer and is lawful in itself
and in its execution, the strikers are entitled to reinstate-
ment upon application during or at the termination of the
strike even if the employer has hired replacements during
the strike.
Having found herein that Hale was unlawfully construc-
tively discharged by the Respondent, and as I am satisfied
that the record clearly establishes that the six strikers here-
in were engaged in concerted activity vis-a-vis the Respon-
dent in connection with its unfair labor practice relating to
Hale, it is clear and I find that the six strikers herein were
engaged in protected concerted activity and were unfair
labor practice strikers entitled to reinstatement upon appli-
cation. I find from clear evidence of record that such appli-
cation for reinstatement was duly made by the six strikers.
The remaining question is whether or not by acts or con-
duct the strikers individually or collectively were guilty of
such serious violence or other unlawful acts as to result in
forfeiture of their rights to reinstatement and protection of
the Act.
In making the foregoing findings, I have considered and
I find no merit in Respondent's -contention that the six
employees quit their jobs. There is much testimony , not all
consistent, as to the language used at the meeting of Au-
gust 17. However, in the context in which the walkout oc-
curred, I would not regard it as significant even if the em-
ployees had referred to their action as quitting.
Unorganized workers will often refer to their concerted
walkout as quitting when their action is merely a cessation
of employment as a result of a labor dispute . N.L.R.B. v.
Phaostron Instrument and Electronic Co., 344 F.2d 855, 858
(C.A. 9, 1965); Kelso Marine, Inc., Kel Stress Division, 199
NLRB 7, 9 (1972).
Nor am I persuaded by the Respondent' s contention
that the employees were not engaged in concerted activity
under the Act. The employees went as a group, to see
O'Connor and Leesemann to protest the termination of
Hale's employment. For this purpose it is immaterial
whether they were concerned with "union matters" or, as
Respondent contends , they were just concerned with the
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lack of experienced chief operators remaining after Hale's
departure. The latter motivation, with its necessary effect
on the safety of the job, is no less protected. The employees
were, at the very least, protesting a situation that had a
direct bearing on their terms and conditions of employ-
ment and which arose out of the unfair labor practice of
the Respondent. The fact that when O'Connor questioned
each employee, in the presence of the remaining five, they
each individually admitted their support of the work stop-
page, does not make their actions any less a concerted ac-
tivity under the meaning of the Act.
Finally, the Respondent contends that the employees
have forfeited any rights to reinstatement by acting in a
manner demonstrating such gross disloyalty to their em-
ployer that Respondent cannot be forced to reinstate these
individuals. It is thus necessary to determine whether any
of the acts complained of by the Respondent justifies de-
priving these employees of their rights to reinstatement.
Respondent contends that these employees, all union
supporters, were guilty of threatening and coercing other
employees in an effort to solicit greater support for the
Union. Related to this charge, Respondent claims that the
chief operators had failed to perform their duties, specifi-
cally they had failed to provide adequate training for less
experienced operators, presumably because the latter op-
posed the Union. There is a considerable amount of con-
flicting testimony concerning these two contentions. How-
ever, as indicated hereinabove, with respect to Hale, what
is clear is that, although Respondent apparently knew of
these alleged activities before August 17, no disciplinary
action was ever taken against any of these six employees.
Nor does the record disclose that the Respondent warned
the employees about continuing such conduct. Respondent
cannot now claim that this conduct, all of which occurred
before August 17, and which was not significant enough to
provoke a response from Respondent then, was so grave as
to require the Respondent to forever bar these men from
reinstatement.
Respondent further contends that, by walking off the job
on August 17 without adequate safeguards, the men dem-
onstrated an action of disloyalty that justifies Respondent's
refusal to ever rehire the employees. The right to strike,
however, is of utmost importance, and limitations on that
right should be narrowly construed. The walkout here did
not leave Respondent's refinery completely unmanned.
The remaining staff was able to maintain the operation of
the equipment and prevent any damage to the
Respondent's machinery. I am not persuaded that the mere
fact that the walkout was sudden justifies depriving these
strikers of their right to reinstatement. In this regard it may
be relevant to note that O'Connor's son had apparently
previously walked off of his job without relief, yet his ac-
tion was not considered so onerous as to prevent his later
return to the refinery.
The Respondent's final contention is that, when employ-
ee Strutton left O'Connor's office on the morning of Au-
gust 17, he committed a deliberate act of sabotage. It is, of
course, unquestionably true that a deliberate act of sabo-
tage would generally be sufficient justification for a subse-
quent refusal to reinstate the wrong-doer. However, I do
not find that such a deliberate act of sabotage was commit-
ted here.
The alleged act of sabotage turns on the question of
whether Strutton turned a valve in order to commit sabo-
tage or whether he turned a valve for a normal purpose in
the ordinary course of operation . In this connection, in his
testimony O'Connor states that he observed Strutton turn a
dangerous valve . Strutton, in his testimony , corroborated
by Marshall and Beloat, stated that when he left the meet-
ing he went out and approached Beloat to tell him he was
wanted in the office , and he was informed by Beloat of a
high liquid level in the dry end of a vessel . Strutton stated
that if liquid is sucked into the dry end of the compressor it
could blow pressurized air and metal all over the area.
Strutton stated that by opening the horizontal valve, about
knee length off the ground, he allowed the liquid to flow
from the dry end to the wet end, thus correcting the dan-
ger.
When Beloat' went into the control room he told Strut-
ton, "I 'll watch this level and the pressure ." Later Beloat
told Strutton that the liquid level was going down. Strutton
then told Beloat to remember that the valve was open. Be-
loat said he would take care of it.
I credit this reasonable explanation by Strutton of his
action, corroborated by Beloat and Marshall, the validity
of which is not contradicted herein. The only question is
whether or not Strutton turned the valve he claimed he
turned or, as O'Connor states, another valve. Having ob-
served the area of the physical plant where the incident
occurred from the position occupied by O'Connor at the
time in question, I have serious doubt as to whether at that
distance and in the maze of pipes and machinery in the
refinery, anyone could be absolutely certain of which valve
was being turned under the circumstances, particularly
when one considers that the principals were involved in a
labor dispute and even giving consideration to O'Connor's
knowledge of the physical plant. I am convinced that
O'Connor could not be certain that Strutton turned one
particular valve as against another and, being satisfied that
Strutton testified reasonably and credibly concerning his
action, I find that no act of sabotage was committed by
Strutton. Accordingly, I reject the Respondent's contention
that Strutton and his fellow strikers be deprived of their
right to reinstatement within the protection of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union herein is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining , and coercing its em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act, the Respondent, by interrogation, threats, and
grant of benefits, has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By constructively discharging Eugene Hale because
of his union activities for the purpose of mutual aid or
protection , Respondent has engaged in an unfair labor
CRYSTAL PRINCETON REFINING CO.
practice within the meaning of Section 8(a)(1) and (3) of
the Act.
5. By refusing to reinstate unfair labor practice strikers
Jimmie Marshall, James Pfeiffer, James Schmitt, Carl
Strutton, Kenneth Turpin, and Eldon Lee Young, because
of their concerted activity arising from the unlawful dis-
charge of Hale, Respondent has engaged in a further unfair
labor practice within the meaning of Section 8(a)(1) and (3)
of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
1077
Having found that the Respondent engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
of the type which is conventionally ordered in such cases as
provided in the recommended Order below, which I find
necessary to remedy and remove the effects of the unfair
labor practices and to effectuate the policies of the Act.
Since the discharge of an employee in reprisal for his parti-
cipation in the exercise of rights guaranteed in the Act af-
fects the very basis of such rights, the cease-and-desist pro-
visions should be appropriately broad. N.L.R.B. v.
Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4).
[Recommended Order omitted from publication.]