Forest Oil Corp.

National Labor Relations Board - Board Decisions

Jul 8, 1949

85 N.L.R.B. 85 (N.L.R.B. 1949)

In the Matter of FOREST OIL CORPORATION and INTERNATIONAL UNION
OF OPERATING ENGINEERS, AFL
Case No. 16-CA-64.-Decided July 8,194.9
DECISION
AND
ORDER
On March 31, 1949, Trial Examiner Hamilton Gardner issued his
Intermediate Report 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 in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief ; the Respondent filed
a brief in support of the Intermediate Report and a reply brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this proceeding to a three-member panel [Chairman Herzog and Mem-
bers Houston. and Murdock].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no projudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recomendations
of the Trial Examiner, with the following modifications:'
1. We agree with the Trial Examiner that the Respondent has not
violated Section 8 (a) (1) of the Act.
The restraint, interference, and coercion alleged herein rest princi-
pally upon statements attributed to farm boss Van Winkle by em-
ployees Edens, George, Vaughn, and Wattenbarger.2 The Trial Ex-
1 The Trial Examiner found, at one point in the Intermediate Report, that the Respondent's
general manager at Nowata knew of union activity late in February 1948. Inasmuch as
such knowledge was attributable to the Respondent, the finding, at another point in the
Intermediate Report, that the Respondent became aware of the Union on March 15, 1948, is
an inadvertence which does not, however , affect the Trial Examiner 's ultimate conclusion
or our concurrence therein.
2 The Trial Examiner inadvertently states the name of this witness to be Wattenberger.
85 N. L. R. B., No. 13.
85
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aminer did not credit the testimony of Edens, George, and Vaughn,
and, in considering Wattenbarger's testimony, he found not only that
the remarks were not coercive but that Wattenbarger himself was not
intimidated or coerced. In the latter connection, it is clear that Wat-
tenbarger's state of mind is not material to a finding of restraint or
coercion. The test of interference, restraint, and coercion of em-
ployees is not the success or failure of the attempted coercion, but
rather whether the Respondent engaged in conduct which, it may
reasonably be said, tended to interfere with the free exercise of em-
ployee rights under the Act.3 Therefore, in agreeing with the Trial
Examiner that no finding of violation of Section 8 (a) (1) can be
based upon Wattenbarger's testimony, we do not rely on the presumed
effect of the remarks upon Wattenbarger, but only upon the Trial
Examiner's further finding that these remarks were not in themselves
coercive. And, as to the statements attributed to Van Winkle by
Edens, George, and Vaughn, we adopt the Trial Examiner's finding
that these witnesses were not credible and that these statements were
not in fact made. We therefore deem it unnecessary to pass upon the
Trial Examiner's additional theories for not finding a violation of
Section 8 (a) (1) herein, viz: (1) had Van Winkle made the state-
ments attributed to him, he was not spealing in the 'course of his
duties but merely expressing his personal opinion ; and (2) Van Winkle
did not hold a supervisory position after April 23, 1948.
2. We agree with the Trial Examiner that the discharges of Vaughn,
George, and Edens were justified by their insubordination. However,
we find that the statement that the dischargees would meet Nation
down the road after 5 o'clock was made before they were discharged,
and not after as found by the Trial Examiner, and thus constitutes
additional support for the Trial Examiner's finding.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint against the Re-
spondent, Forest Oil Corporation, Nowata, Oklahoma, be, and it
hereby is, dismissed.
8 Matter of Sewell Manufacturing Company, 72 N. L. R. B. 85, enfd. as modfd., 172 F. 2d
459 (C. A. 5) ; Matter of The Pure Oil Company, 73 N. L. R. B. 1; Matter of G. H. Heae,
Incorporated, 82 N. L. R. B. 463.
FOREST OIL CORPORATION
INTERMEDIATE REPORT
87
Evert P. Rhea, Esq ., of Fort Worth , Tex., for the General Counsel.
gulp, Pinson, Supardus c& Kothe, by Charles A. Kothe , Esq., of Tulsa , Okla., for
the Respondent.
Mr. Arland B. Canny, of Edmond, Okla., for the Union.
STATEMENT OF THE CASE
These proceedings arose upon a first amended charge filed on May 7, 1948,
by International Union of Operating Engineers, (AFL), against Forest Oil Cor-
poration. Upon the basis of such charge, the General Counsel of the National
Labor Relations Board, acting through the Regional Director of the Sixteenth
Region, (Fort Worth, Texas), issued a complaint against the named Company
on January 13, 1949. This alleged that the Company had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (3) and 8 (a) (1) and Section 2 (6) and (7) of the Labor Man-
agement Relations Act, (61 Stat. 161). Copies of the complaint and of the charge
upon which it was based, together with notice of hearing thereon, were duly
served upon the Union and the Respondent'
The complaint alleged in substance that the Respondent engaged in unfair labor
practices on May 4, 1948, and thereafter, by discharging W. L. (Doc) Edens,
Jacob Charles (Jake) George, and Aaron Buford Vaughn "for the reason that
they joined or assisted the Union or engaged in other concerted activity for the
purpose of collective bargaining or other mutual aid or protection" ; and further
that the Respondent , during the same period "has interrogated its employees
concerning their union affiliations ; has urged, persuaded, threatened, and warned
its employees to refrain from assisting, becoming members of, or remaining mem-
bers of the Union, has made promise of benefits to its employees.with the purpose
of inducing them to withdraw from the Union, and has made threats of reprisals
if such employees did not withdraw from the Union." Thereby, it alleged, the
Respondent had deprived its employees of the exercise of the rights guaranteed
in Section 7 of the Act.
The answer of the Respondent admitted the jurisdictional facts of the case.
It denied specifically and generally the alleged unfair labor practices ; and af-
firmatively alleged as a defense that the three named employees were "terminated
for just, legal, and sufficient cause."
Pursuant to notice, a hearing was held at Nowata, Oklahoma, from February 1,
1949, through February 5, 1949, before Hamilton Gardner, the undersigned Trial
Examiner, designated by the Chief Trial Examiner. The General Counsel and
the Respondent were represented by counsel and the Union by a representative.
Full opportunity was afforded all parties to be heard, to examine and cross-
examine witnesses and to introduce evidence bearing on the issues. At the be-
ginning of the hearing the Respondent filed a written motion to dismiss the com-
plaint on the ground that the Union had not complied with Section 9 (f), (g),
and (h) of the Act. This was denied. At the conclusion of the introduction
of proof in the main case of the General Counsel the Respondent made an oral
i Reference in this Report will be : International Union of Operating Engineers (AFL),
as the Union ; Forest Oil Corporation , as the Respondent ; the General Counsel and his
representative at the hearing , as the General Counsel ; the National Labor Relations Board
as the Board ; the Labor Management Relations Act, as the Act.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motion to dismiss the complaint. This motion was taken under advisement by
the Trial Examiner. It is now decided as set forth hereinafter. Upon the con-
clusion of the hearing the undersigned granted a motion of the General Counsel,
to which no objection was entered, to amend the complaint in minor matters.
A similar motion with respect to the answer was likewise granted. Oral argu-
ments were made at the beginning and the end of the hearing by both counsel.
The parties were apprised of their right to file proposed findings of fact, conclu-
sions of law, and briefs. The General Counsel has filed a brief and counsel
for the Respondent has submitted proposed Findings of Fact and a brief. All
have been carefully considered .2
Upon the entire record in the case, and upon my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a New York corporation with its main office and principal
place of business at Bradford, Pennsylvania. It operates in Pennsylvania, Illi-
nois, Kansas, Oklahoma, Texas, Mississippi, and New Mexico. It maintains sev-
eral branch offices of which one is located at Nowata, Oklahoma. Only the last
mentioned is involved in this case. The Respondent is engaged in the business
of producing crude petroleum within an area of 75 miles around Nowata, which
field extends into the State of Kansas. Its operations are based upon a system
of secondary recovery of oil by use of pressure brought about by water flooding.
During 1948 the Respondent purchased pipe, machinery, and other equipment in
excess of $100,000, most of which was shipped into Oklahoma from other States.
In the same year it sold crude oil in a sum exceeding $1,000,000, all of which
was delivered outside of Oklahoma.
The Respondent admits it is engaged in interstate commerce within the mean-
ing of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It was stipulated in open hearing between the General Counsel and counsel for
the Respondent that International Union of Operating Engineers, (AFL), is a
labor organization admitting employees of the Respondent to membership.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The background history'
1. Identity of actors
First.of all, the actors participating in the events relevant to the issues in this
case should be identified.
The three discharged employees were W. L. (Doc) Edens, Jacob Charles (Jake)
George, and Aaron Buford Vaughn. The representative of the Union was Arland
B. Canny. The office of president of the local Union was held by T. J. Watten-
2 As specifically worded, the proposed Findings of Fact submitted by counsel for the
Respondent are rejected. The findings in this Intermediate Report, however, reach the
same over-all result.
3 The evidence upon which this brief chronicle of events is based is not in dispute.
FOREST OIL CORPORATION 89
barger. The last named was still an employee of the Company at the time of the
hearing, as were all other witnesses who testified for the General Counsel,-except
the three dischargees.
The executive, managerial, and supervisory personnel who testified for the
Respondent, stated in order of descending authority, were : Forest D. Dorn, presi-
dent ; Arthur L. Robinson, vice president and general manager at Nowata ; George
Van Winkle, formerly farm boss ; Robert L. Nation, farm boss at the time of dis-
charge ; and Jake M. Spears, boss of the pipe-line department. All other witnesses
who testified for the Respondent were still employed by it at the time of the
hearing, except William Hiffer who had voluntarily quit.
2. Increases in wages
Certain evidence, not in dispute, was received showing the dates of increases of
wages of the Respondent's employees and the dates of increases in the price of
Oklahoma crude oil. Part of such proof consisted of a written stipulation filed
as an exhibit by the parties. This discloses that from May 1, 1941, through April
1, 1948, wages were increased 8 times-5 times for 5 cents, once for 10 cents
and once each for 9 cents and 6 cents respectively. Similarly it showed that from
August 31, 1939, through December 6, 1947, the price of Oklahoma crude oil raised
9 times-once by 5 cents, 3 times by 10 cents, twice by 20 cents, twice by 25
cents and once by 50 cents. Other uncontradicted testimony established that
from 1935 to the date of the hearing wages had been increased 16 times, including
February 1, 1948, and April 1, 1948, and that during the same period the market
price of Oklahoma crude oil had gone up 11 times and down twice.
The Trial Examiner cannot agree with the contention of the General Counsel
that the Company's wage increases constituted an unfair labor practice under
Section 8 (a) (1) and therefore rejects it.
3. Organization of the Union
It is without dispute that union activity, by way of organization of the
Respondent's employees, got under way early in February 1948. About that time
Edens talked to 2 persons, who appear to have been employees of the Com-
pany, about organizing a union. On or about February 10, Edens went to Coffee-
ville, Kansas, and established contact with union officials there, 1 of whom later
telephoned him. Approximately February 16 a meeting was held at Edens' home,
attended by 2 or 3 persons. Here plans were laid for a subsequent larger
gathering. This convened on Monday, February 23, 1948, at the Childress School-
house, near Nowata, and 46 employees were present. A union representative was
on hand to explain the necessary organizational procedure. This was followed
by Monday evening meetings on March 1, 8, and 15. Then the meetings were
shifted to Alluwe and several weeks were missed. On May 3, 1948, a union meet-
ing convened at Nowata at which Canny, the union representative who attended
the hearing, was present.
Of the three dischargees Edens was most active in soliciting new members,
George almost equally so and Vaughn less so. Wattenbarger, the union presi-
dent, solicited about 12 members and approximately 25 other employees took some
part in getting cards signed.
The Respondent was definitely fixed with notice that the Union was active
among its workers about March 15, 1948, through the receipt by Dorn, president,
and Robinson, general manager, of letters from the National Labor Relations
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board concerning an alleged unfair labor practice with an employee named
Rifler, the facts of which are not germane in this proceeding. About the same
time Canny, union representative, called on Robinson about that case.
4. The reprimand letters
On May 1, 1948, Robert L. Nation, the new farm boss, reported personally to
Arthur L. Robinson, general manager, certain actions and attitudes of Edens,
George, and Vaughn for instructions as to what course should be followed by him.
Robinson in turn telephoned Forest D. Dorn, president, who was then in Tulsa,
Oklahoma. Dorn told Robinson he would discuss the matter with the Company's
Tulsa attorney who would call Robinson back. This was done by counsel, Charles
A. Kothe, Esq. On May 3 Dorn, Robinson, and Nation met in the company
office at Nowata, decided to follow the advice of counsel and to deliver a letter
of reprimand to Edens, George, and Vaughn. On that afternoon these letters
were prepared. All three were identical in form and read as follows :
FOREST OIL CORPORATION,
Nowata, Oklahoma, May 3, 1948.
Mr. A. B. VAUGIIN : Your work has been unsatisfactory for some time. On
numerous occasions you have refused to obey orders given by your field
foreman. If your work is not brought to standard at once, or if you con-
tinue to disregard orders, it will be necessary to discharge you.
(S) A. L. Robinson,
A. L. ROBINSON,
General Manager.
5. The discharge
On the early morning of May 4, ,1948, Nation, the immediate supervisor of
Edens, George, and Vaughn, picked up the three letters, placed them in separate
envelopes and sealed them. He then took them out to a company office in the
field and presented them to the respective three employees. Some considerable
conversation, concerning which numerous witnesses testified, then ensued. Fol-
lowing this, Nation returned to the Respondent's Nowata office, secured three
checks for the payment of the three named employees, drove again out to the
field, and delivered the checks.
Neither Edens, George nor Vaughn have since worked for the Respondent.
There is no evidence in the record that either of the three have ever solicited
reinstatement in their jobs or that the Company has offered to hire them
again.
B. Alleged discrimination 4
1. Authority of Nation to issue orders and to discharge
The General Counsel placed considerable emphasis in his proof and in his
brief on the point that Robert Nation, successor farm boss to George Van
Winkle, either did not have authority to issue orders to the Respondent's
4 The evidence discussed in this portion of the Intermediate Report is in conflict as to
most of the important issues in the case. Wherever possible, attempt will be made to
reconcile it. It will be analyzed and evaluated primarily on the basis of its probability,
consistency, and trustworthiness and likewise on the basis of the credibility of the witnesses,
including their demeanor on the witness stand.
FOREST OIL CORPORATION 91
employees or at least did not exercise such authority before May 4, 1948, and in
fact was overruled by Van Winkle . The significance of such a view is beyond
the comprehension of the Trial Examiner.
The facts are simple enough and the evidence is undisputed except for the
sole testimony of W. L. ( Doe) Edens . According to the , statements of General
Manager Robinson , Van Winkle expressed a desire about January 1 , 1948, to
be relieved as farm boss and to be assigned as electrician . The reasons were
exclusively for Van Winkle ' s personal convenience . So the Respondent looked
for a new farm boss-and did not select Edens for the job. Nation interviewed
Robinson on April 15 , 1948, and was employed . On April 17 he was introduced
to the employees , including Edens, George , and Vaughn , as their new farm
boss. Nation was conducted around the territory where the Respondent was
operating by Adrain Feltenberger , field superintendent for the Respondent, and
by Van Winkle. Nation began to issue orders after the second or third day.
After the first week he was the only one who issued orders to employees under
his jurisdiction, although he occasionally consulted Feltenberger and Van Winkle.
There is no credible evidence that Van ' Winkle ever overruled any of Nation's
orders. Likewise , the record presents no real doubt of Nation 's authority to
hire and fire.
The testimony of George and Vaughn is in entire accord with the findings
on this point . Edens' testimony will be discussed later. In this respect the
Trial Examiner regards as utterly without significance the statements of Boyd
Worthington , witness for the General Counsel, regarding his attempt to obtain
a vacation with pay from Nation.
2. The three discharged employees
a. W. L. (Doe) Edens
Edens began to work for the Respondent as a roustabout on May 10, 1939,
and continued uninterruptedly until he was discharged on May 4, 1948. His
wages were progessively increased until 1946 . On January 28 of that year he
was made farm boss with a beginning salary of $200 monthly . At that time
the Company employed 4 or 5 farm bosses, whereas at the time of the hearing
the number had increased to 11 or 12.
In the fall of 1947 Edens had some trouble about his work with General
Manager Robinson , which will be discussed later. On January 1, 1948, before
the Union had attempted to organize the Respondent 's employees , Edens was
demoted, without reduction in pay, from the position of farm boss to roustabout-
or, as he claimed, a "head roustabout ." He issued orders only to George and
Vaughn, as such orders were given to him by supervisors-at first Van Winkle
and at the last, Nation . He had no authority to hire or fire.
Edens became very bitter about this demotion . He admitted telling other
employees he had received a "dirty deal."
Edens was particularly resentful against Nation , who was brought in from
the outside to become farm boss , a position from which Edens had been demoted.
His vindictiveness was clearly apparent on the witness stand whenever Nations'
name was mentioned . Moreover he never admitted at any time in his own
testimony that Nation really was his boss. He repeatedly insisted that after
Nation's installation , Van Winkle still gave him instructions, notwithstanding
that all other testimony was to the contrary . Some of his characterizations of
Nation were : Nation might have been his "immediate superior , but he didn't
show it"; Nation was a "farm boss in name only " ; Nation was "supposed to be
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a farm boss" on May 4, 1948, when Edens was discharged. As a consequence
the Trial Examiner gives no weight whatsoever to Edens' testimony regarding
his relations with Nation and very definitely minimizes his testimony as to
other issues in the case.
b. Jacob Charles (Jake) George
George had been employed continuously by the Company for 13 years before
he was discharged. He had always been a plain roustabout. By 1947 he had
become definitely dissatisfied with his position. On one occasion, by his own
testimony, he asked his supervisor, George Van Winkle, what was wrong with
his work and at another time he complained that a fellow employee named
Johnny Callison received preferential treatment over him.
c. Aaron Buford Vaughn
Vaughn had worked for the Respondent for over S years as a roustabout. He
had had trouble with Nation, farm boss, regarding riding on a truck against
instructions. The Trial Examiner was impressed that Vaughn completely fol-
lowed the lead of Edens in the entire transaction.
3. Unsatisfactory work
As quoted above, the so-called "reprimand letters" delivered to Edens, George,
and Vaughn on May 4, 1948, mentioned two grounds for possible future dis-
charge : "Your work has been unsatisfactory for some time. On numerous
occasions you have refused to obey orders given you by your field foreman."
As to the claimed unsatisfactory work, the testimony is in dispute.
General Manager Robinson testified as to two instances occurring in the fan
of 1947 where he had considered Edens' work was not satisfactory. But while
these may have been the principal reasons for the demotion of Edens from farm
boss on January 1, 1948, they hardly entered into the discharge on May 4, 1948,
especially since Robinson never informed Edens otherwise of such dissatis-
faction.
Farm Boss Nation cited five specific cases of unsatisfactory work by Edens,
George, and Vaughn between April 16, 1948, and May 4, 1948. But he admitted
that he did not mention the matter to them, giving the reason that he was new
on the job and did not "wish to throw his weight around." He did tell Vaughn
twice, however, to stay off of Edens' truck.
Farm Boss George Van Winkle gave testimony of five occasions when these
three employees performed unsatisfactory work. But as to his informing them
of such fact, the only testimony offered was to the effect that once Van Winkle
told George, in answer to the latter's inquiry as to "what was wrong with my
work," that "you haven't been trying." There is also some testimony that
during the conference following the delivery of the "reprimand letters" on May 4,
1948, Van Winkle told the three men that they knew "their work had been un-
satisfactory for a long time."
In view of all these circumstances, including the long periods of service of
the three men, I find that their alleged unsatisfactory work was only a very minor
reason for their discharge, if indeed, it was such a reason at all.
4. Refusal to obey orders
The testimony concerning refusals by Edens, George, and Vaughn to obey
orders given to them by Nation, farm boss, and by other supervisors of the Re-
spondent presents a much more serious problem.
FOREST OIL CORPORATION 93
Testimony of Robert L. Nation regarding events from the time of his installa-
tion as farm boss on April 15, 1948, to the date of the discharge of Edens, George,
and Vaughn on May 4, 1948, is the most important evidence offered by the Re-
spondent on this topic. Nation stated that the three men "resented me being
there." This was corroborated by George Van Winkle, Nation's predecessor. It
was denied by Edens, but his denial is discredited by his own testimony and by
his evident hostility on the witness stand whenever Nation's name was mentioned.
Nation referred to: (a) his instructions to Edens to pump oil out of tank on
the "D & H lease," which Edens' group did not carry out and the oil ran over
which Edens on rebuttal did not specifically deny, but offered the alibi that
the responsibility belonged to some one else; (b) his twice repeated orders to
Vaughn to stay off Edens' pick-up truck-which Vaughn ignored; (c) Edens'
statement to Nation following the latter's instructions to put hoops on the "Cot-
ton water plant," namely, "Did anyone tell you we do not work on this side
of the flood?" and complained repeatedly as to the inadequacy of the hoops
and other material-which Edens did not deny; (d) his directions to "cut the
rod line" on a certain pump which was not done; resulting in a complaint by
Nation to Adrian Feltenberger, field superintendent-and concerning which
Edens later testified only that "it is not necessary" to do the job the way Nation
had ordered it done. In all these matters George and Vaughn followed the
lead of Edens.
As will be pointed out later, Edens, George, and Vaughn all made statements
in the conference immediately preceding the discharge on May 4 which indicated
clear insubordination.
In their original direct testimony all three denied any failure to obey orders
or that they were insubordinate. Their cross-examination and their testimony
on rebuttal did not bear out these denials. On this matter, as between Nation,
the farm boss, on the one hand, and Edens, George, and Vaughn on the other,
the Trial Examiner, for the reason stated, prefers to believe Nation.
I therefore conclude and find that Nation had adequate and sufficient grounds
on May 4, 1948, to discharge Edens, Vaughn, and George for refusal to obey
orders and for insubordination.
The Labor Management Relations Act does not deprive an employer from dis-.
charging an employee for what the former deems good and sufficient cause. It
does prohibit a discharge based on union activities. In this case the facts clearly
show adequate reasons for the discharge of Edens, George, and Vaughn and
negative union activities as the motivation.
As stated by the Court of Appeals for the District of Columbia :
The prohibition of the statute is against interference with, restraint or
coercion of employees in the exercise of their right to organize, and against
encouragement or discouragement in a labor organization by discrimination
in regard to tenure of employment or any term or condition of employment.
The statute does not interfere with the normal right of an employer to dis-
charge employees for good reason, or at will if such discharge be not in vio-
lation of the statutory provision .6
E. Anthonny, & Sons, Inc. v. N. L. R. B., 163 F. 2d 22, 27 (C. A. D. C.). See also :
N. L. R. B. v. American Car & Foundry Co., 161 F. 2d 501 (C. A. 7) ; N. L. R. B. v. Columbia
Products Co., 141 F. 2d 687 , 688 (C. A. 2).
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The conference accompanying the discharge on May 4, 1948
The chronology of events leading up to the.morning of May 4, 1948, when Na-
tion delivered' the three "reprimand letters" to Edens, George, and Vaughn has
already been set forth hereinbefore as to its undisputed aspects. It now remains
to consider the conference among these parties on that occasion which culmi-
nated in Nation's discharging the three employees.
For the General Counsel the following witnesses testified about this conver-
sation : Edens, George, Vaughn, M. L. Menard, and Dero T. Vinitas, the last
named on rebuttal ; for the Respondent : Nation, George Van Winkle, Walter H.
Parret, Milton Frauenberger, and John D. Spurgeon. No two witnesses pre-
sented exactly the same version of what was said and done. Not all were pres-
ent during the entire talk and some not in as favorable a position to hear as
others. It was variously estimated as continuing from 5 to 30 minutes. But it
is possible to reconstruct the basic parts of the conversation after considering
these factors and give due weight to the interest, bias, or prejudice of the re-
spective witnesses where such was demonstrated.
Nation, the relatively new farm boss, drove on the scene near the Company's
field office about S a. in. The employees mentioned above were working or stand-
ing around in the near vicinity. Nation first asked George Van Winkle, his
predecessor, to leave the office and accompany him. He then walked over to
Edens, George, and Vaughn and gave them each an addressed letter. Edens and
George at once read theirs, but probably Vaughn did not, because he did not
have his glasses. Vaughn or George asked what the letters meant and Nation
answered : "They mean just what they say." George, at Vaughn's request, then
read aloud his own letter. Thereupon ensued an argument between Edens and
Nation, with the two others occasionally participating. Edens demanded to
know what they had failed to do as ordered. Nation repeated several times that
he wanted them to cooperate-and to go ahead with their work e The three did
not go to work. Edens also asked Van Winkle what was the matter and Van
Winkle replied that Edens knew his work had not been satisfactory. Finally
Nation said in substance that if such was the way Edens, George, and Vaughn
felt about it and they would not cooperate, "we will just call it quits." That
was the discharge involved. Nation then went in Nowata to the Company's
office, secured the three checks for wages due the men to date and delivered. them.
Considerable testimony was offered by both sides with respect to certain
remarks by one or all of the dischargees to the effect that "we will meet you
after five o'clock ; bring the difference with you." It seems clear that if such a
statement was made at all it was after Nation had discharged the men. Con-
sequently I give it little consideration. Similarly two of the Respondent's wit-
nesses stated that Edens had referred to Manager Robinson as a "son of a bitch."
No one else testified as to hearing this epithet. I therefore discount it entirely.
Most of the witnesses told of hearing loud voices and heated argument but
no actual threat of physical violence. Edens, George, and Vaughn variously
described their state of mind as "stunned," "surprised," "aggravated," "dis-
turbed," and "sore" and as thinking the discharge was "a dirty deal."
I do not regard the visit of the sheriff following Nation's departure to get
the checks as having any bearing on the issues of the case.
9 As to this matter of Nation soliciting cooperation, I place considerable reliance on the
testhnony of Dero T. Vinita, a witness for the General Counsel on rebuttal . He appeared
to be wholly disinterested and honest and straightforward in his story.
FOREST OIL CORPORATION 95
6. Was the discharge discriminatory because of the union activities of Edens,
George, and Vaughn?
Whether or not Nation was justified in his own opinion in firing Edens, George,
and Vaughn because of their insubordination, yet if one of the effective reasons
for their discharge was based on their union activities, an unfair labor practice,
as defined in the Act, was committed. That question will now be considered.
The three company officials who participated in the meetings of May 1 and
May 3, 1943, during which it was decided to write the three "reprimand letters"
were President Dorn, General Manager Robinson, and Farm Boss Nation. No
testimony is found in the record that any other supervisor took part in these dis-
cussions, were consulted about them or knew anything about them. Nation
brought the subject up to Robinson on May 1, related what he considered in-
subordination and lack of cooperation by Edens, George, and Vaughn ; and re-
peatedly demanded to know if he "had to put tip with it." Robinson consulted
Dorn and it. was decided to follow the course recommended by the Tulsa coun-
sel, Mr. Rothe. It is clear that since March 1948, both Dorn and Robinson knew
that the Union was organizing among their workmen because of a letter they
had received from the National Labor Relations Board concerning another em-
ployee. But Dorn testified he had never heard of Edens, George or Vaughn
until May 1 and that the subject of their participation or nonparticipation in
union affairs was not discussed in the meetings. Robinson had previously been
asked by some employees about attending union meetings, but he bore out Dorn's
testimony that union activities of the three men had not been involved. Nation
had been with the Company as faun boss only slightly longer than 2 weeks ;
insisted he had never discussed union activities of the men since his arrival ; and
did not know until after. May 4 that Edens, George, and Vaughn even belonged
to a union.
Against this evidence the General Counsel sought to color the discharge with
discrimination, as alleged in the complaint. Edens was asked to tell the sub-
stance of a conversation between him and George about "getting canned." It
developed that George had been told something by William Branstetter who in
turn had been told by George Van Winkle. The time was fixed on April 27,
1948, when, in fact Van Winkle was no longer farm boss or otherwise a super-
visor. At first the Trial Examiner excluded the answer as incompetent under
the hearsay rule. But later, upon the repeated insistence of the General Counsel,
he admitted it for what it was worth. George testified to the same statement.
Van Winkle denied it. Branstetter was ill at the time of the hearing and did
not testify.' Wattenberger, the union president, said he also had heard the
three men were to be "canned." Based upon these rumors, George telephoned
to Arland B. Canny, union representative, who came to Nowata to attend a
union meeting on May 3 where the matter was discussed. Canny told the men
that he doubted there was any substance to the gossip. He thought so little
of it that he did not bother to confer with Manager Robinson, although he had
previously done so on another union matter. Nor did Edens, George or Vaughn
consult with Robinson or Nation. .
I The Trial Examiner requested counsel on both sides to consult Branstetter 's physician
about his physical condition . They did so and jointly reported back that in the doctor's
opinion, Branstetter might suffer severe physical injury if compelled to testify either at
the hearing or in his own home.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This constitutes the sole proof in the record that the Respondent discriminated
against the three dischargees on the basis of their union activities.
In his brief the General Councel sets great store by the Van Winkle-Branstetter
rumor that someone was to be "canned." Only Edens and George heard this
specific gossip. Van Winkle denied lie had made any such statement-and in
any event it was dated at a time when he no longer exercised a supervisory
capacity. Unfortunately Branstetter was seriously ill at the time of the hearing
and was not able to testify.
As already pointed out and for the reasons stated, the Trial Examiner, from
a cold-blooded scanning of the record, cannot find substantial credible evidence
that these three employees were discharged because of their union activities.
Conclusion as to discriminatory discharge
I shall therefore recommend that the portion of the complaint alleging a
violation of Section 8 (a) (3) of the Act be dismissed.
C. Alleged interference, restraint, and coercion
On this matter the complaint alleges that the Respondent, through certain
designated agents and employees, "has interrogated its employees concerning
their union affiliations ; has urged, persuaded, threatened, and warned its em-
ployees to refrain from assisting, becoming members of or remaining members
of the Union ; has made promise of benefits to its employees with the purpose
of inducing them to withdraw from the Union and had made threats of reprisals
if such employees did not withdraw from the Union."
Verification of these allegations must rest primarily on the testimony of two
of the three discharged employees as to certain statements alleged to have been
made to them by George Van Winkle, then a farm boss. This is the testimony:
a. By EDENS :
That either on February 13, 17 or 19, 1948 (Edens was not sure of the date),
Van Winkle said to him at a company tool house on "Flood 1."
Doe, if you'll quit the union now, I'll save your job. . . . Mr. Robinson
will forget the union started and everything will be alright. The boys will
let you down.
You'll have the sack to hold.
Van Winkle denied making any such statement.
b. By GEORGE :
That at the same tool house on February 23, 1948, in response to a question
by George whether Van Winkle believed in unions, the latter answered :
If this union don't go over, you will have to face the men when they
go treating you like they have.. . . .
Robinson will have somebody up there spotting.
That on the "Hattie Lewis lease" about the middle of March 1948, Van Winkle
told George :
How you feel about the union is alright. You have your own opinion
and that is alright, but don't try to influence the men. . . .
Jake, use your head. The more I'd fight the union the more they'd be
for it.
FOREST OIL CORPORATION 97
Van Winkle denied saying any such things.
c. By T. J. WATTENBERGER, president of the Union :
That in the latter part of January 1948, at an undesignated place, Van Winkle
said to him :
We wouldn't need to try to organize a union. A union man would move
in town and rent a building here. He was sure the Company would raise
our wages ; wake up to the fact that they should raise our wages. . . .
He asked me if I heard about the boner Doc Edens pulled on the South
End. . . . He gave a non-union man some cards to hand out, Joe Coun,
[an employee] and he taken them down to Joe Cummings [a foreman] and
laid them on his desk.
WATTENBERGER testified he answered :
I started in this thing and I am going to stay with it to the end.
That on April 21, 1948, at the tanks where Wattenberger worked, Van Winkle
stated :
Something was going to happen. You'll be all right. Whenever it does
happen, why, you just keep still and dont say anything. Jake Spears [boss
of the pipe gang] and Adrian Feltenberger [field superintendent] are for you.
Go ahead and do your work and you'll be all right.
That he had heard from an employee named Roy O. Phillips some rumors that
the men in Jake Spear' s, pipe gang were saying "someone" had stated that "if
they talked union they would be fired."
At the time of the hearing Wattenberger was still working for the Respondent.
Van Winkle denied making these statements. On April 21, 1948, he was no
longer a farm boss or acting in any supervisory capacity.
General Manager Robinson had learned of the organization of the Union ap-
proximately when the first meetings were held because some of the employees
asked him if they should attend. He told them to use their own judgment.
While there is no direct evidence to such effect, it is inferable that the "spotters"
mentioned by George were Carl Sequichie, William Rifler, and Kenny Robinson.
All three testified for the Respondent and all were present employees except
Rifler, who had voluntarily quit some time previous to the hearing. All of them
attended one of the early union meetings, Sequichie using a company truck which
he occasionally drove on personal business in the evenings. Each of these wit-
nesses testified he had never discussed the union meeting with any company
official.
As to the "rumors" emanating from the Jake Spear pipe gang, Phillips denied
making any statement to Wattenberger concerning the Union. Spears and
Charles G. Young, a member of his crew, gave purely negative testimony that no
statement regarding the Union had been made by Spears.
There is no proof whatsoever in the record that any company official other
than Van Winkle (and Robinson in the instance mentioned above), ever talked
about the Union to employees.
It follows that the case of the General Counsel against the Respondent for
alleged violation of Section 8 (a) (1) of the Act must rest upon the quoted
statements which George Van Winkle is supposed to, have made. May they be
held to be the Company's actions "to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in section 7"?
98 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
In the first place, the record is absolutely silent that the Respondent had
adopted, or had attempted to carry out, any anti-union policy. Nor are any
inferences to that effect logically possible from the over-all circumstances. In the
second place, even if it be assumed Van Winkle made the declarations men-
tioned, nothing was proved that he was speaking officially and in the regular
course of his business duties. Quite to the contrary, all of the facts indicate
he was expressing a personal opinion to men with whom he had worked many
years and who were his friends. Thirdly, I do not credit the testimony of Edens
and George as to these conveniently "pat" statements. In the fourth place,
Van Winkle did not hold a supervisory capacity after April 23, 1948. I credit
Wattenberger with sincerity, but his own personal history, vis-d-vis the Union,
shows that he was certainly not coerced or intimidated. And finally, the words
themselves do not spell out "interfere with, restrain, or coerce," in the light
of all the circumstances.
In his brief the General Counsel relies on a supposed "general course of con-
duct" to fix the Respondent with a violation of Section 8 (a) (1). The cold
facts of record do not justify his thesis. He cites no authorities.
In fact the Board and the Federal Courts hold to the contrary.'
Conclusion as to interference, restraint, and coercion
I shall therefore recommend that this portion of the complaint be dismissed.
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. International Union of Operating Engineers is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discharging W. L. (Doc) Edens, Jacob Charles (Jake) George, and
Aaron Buford Vaugh on May 4,.1948, the Respondent did not violate Section 8
(a) (3) of the Act, as alleged in the complaint.
3. The Respondent, during the times mentioned in the complaint, did not
interfere with, restrain, or coerce its employees in violation of Section 8(a) (1)
of the Act, as alleged.
Upon the basis of the foregoing Findings of Fact and Conclusions of Law, I
recommend that the complaint be dismissed in its entirety.
Dated at Washington, D. C. this 31st day of March 1949.
HAMILTON GARDNER,
Trial EFaniiner.
8 Sax etc. v. N. L. R. B., 171 F. 2d 769, 772 (C. A. 7), N. L. R. B. v. The Hinde & Dauch
Paper Co., 171 F. 2d 240 (C. A. 4) ; N. L. R. B. v. Mathieson Alkali Worke, 114 F . 2d 796,
803 (C. A. 4) ; Matter of Mid-Continent Petroleum Corp., 54 N. L. R. B. 912.