Hicks Oils & Hicksgas, Inc

National Labor Relations Board - Board Decisions

Mar 7, 1989

293 N.L.R.B. 84 (N.L.R.B. 1989)

84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hicks Oils & Hicksgas , Inc and Teamsters Local
Union No 347 , a/w with International Brother-
hood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America , AFL-CIO Case 14-
CA-17715
March 7, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On June 28, 1985, Administrative Law Judge
Richard J Linton issued the attached decision The
Respondent and the General Counsel filed excep-
tions and supporting briefs, and the Respondent
filed an answering brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings , findings, I and
conclusions only to the extent consistent with this
Decision and Order and to adopt the recommended
Order as modified 2
1 The judge found that the General Counsel
failed to establish a prima facie case in support of
the 8(a)(3) allegation that Kinsel was discharged
for union activities He based the finding on an ab-
sence of proof that the Respondent knew of Kin-
' The Respondent and General Counsel have excepted to some of the
judge s credibility findings The Board s established policy is not to over
rule an administrative law judge s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are in
correct Standard Dry Wall Products 91 NLRB 544 (1959) enfd 188 F 2d
362 (3d Cir 1951) We have carefully examined the record and find no
basis for reversing the findings
We agree with the judge for the reasons set out by him that the evi
dence is insufficient to establish agency status for Edward Johnson and
that therefore the allegations that he violated Sec 8 (a)(1) should be dis
missed See JD infra at 92 The cases relied on by our dissenting col
league are distinguishable Johnson s authority to act as a conduit of in
formation between management and other employees is not shown as ex
tending beyond his day to day leadman duties so as to place him in such
a distinct position that other employees would reasonably believe that he
was allied with management
Member Johansen would reverse the judge and find that Edward John
son was acting as the Respondents agent during the alleged encounters
with maintenance employee Gary Kinsel in September and October 1984
and that Johnson s conduct toward Kinsel violated Sec 8(a)(1) as alleged
In Member Johansen s view the record clearly shows that notwithstand
ing his lack of supervisory status Johnson was and could reasonably
have been viewed by the maintenance employees as a company repre
tentative clothed with implied authority to act for management Qua!
ity Drywall Co 254 NLRB 617 620 (1981) See also Jules V Lane DDS
PC 262 NLRB 118 119 (1982) Bohemia Inc 266 NLRB 761 763-764
(1982)
2 In accordance with New Horizons for the Retarded 283 NLRB 1173
(1987) interest on and after January 1 1987 shall be computed at the
short term Federal rate for the underpayment of taxes as set out to the
1986 amendment to 26 U S C § 6621 Interest on amounts accrued poor
to January 1 1987 (the effective date of the 1986 amendment to 26
U S C § 6621 ) shall be computed in accordance with Florida Steel Corp
231 NLRB 651 (1977)
sel's support for the Union He further found that
the evidence established a lawful motive for the
discharge, i e, the Respondent's inability to meet
Kinsel's wage demands, and that the allegation
should, therefore, be dismissed We disagree with
the judge's analysis on both points
As more fully described by the judge, Kinsel
was the leader of the incipient union organizing
effort Beginning about the third week of August
1984,3 Kinsel began raising the subject of union
representation with other employees On October
11 Kinsel contacted the Union and arranged for a
union meeting on the evening of October 17 A
few days prior to October 11, Kinsel initiated a
conversation with John Flessner, the Respondent's
vice president, about the "possibility of the [plant]
going union "
According to Kinsel's credited testimony,
Flessner told him that he wished that the plant not
be unionized and that if it was, the Respondent
would be "in a bind " Flessner further stated that if
the union effort succeeded, the situation would be
,out of his hands " These comments by Flessner
clearly imply that he was responding, in an ex-
change begun by Kinsel, to expressions of support
for unionization of the plant Thus, we find that the
Respondent, through its second highest manage-
ment official, knew of Kinsel's union sympathies 4
In linking the Respondent's knowledge of Kin-
sel's support for unionization, albeit not necessarily
of his leadership role, with an unlawful motive for
then discharging him within approximately 1 week,
we stress the extent of the Respondent's ongoing
pattern of unfair labor practices manifested in inter-
rogations threats of discharge, promise of benefits
for refraining from union activities, creation of the
impression of surveillance, and two subsequent dis
criminatory discharges
On the basis of the above, we find that the ele
ment of knowledge that the judge found lacking
has been amply proven In the presence of exten
sive union animus, as described above, as well as
the precipitous timing of Kinsel's discharge ap-
proximately 1 week after he contacted the Union,
we further find that the General Counsel has met
her burden of establishing that Kinsel's union ac
tivities were a motivating factor in his discharge
We therefore find, unlike the judge, that the Gen-
' Unless otherwise indicated all dates are in 1984
4 Kinsel s testimony that he did not tell Flessner that he was going to
contact the Union elicited in response to a question on cross examination
about whether he volunteered to Mr Flessner about unions does not
undercut this finding
We find it unnecessary to reach the issue concerning whether knowl
edge of Kinsel s arranging the union meeting can be attributed to the Re
spondent through statements of Supervisor Fiantaco
293 NLRB No 10
HICKS OILS & HICKSGAS
eral Counsel has established a prima facie case of a
discriminatory discharge
Having found that Kinsel's union activity was a
motivating factor in his discharge, we now turn to
the Respondent's asserted lawful reason for that
action and find, in agreement with the General
Counsel, that the Respondent has not met its
burden under Wright Line, 251 NLRB 1083 (1980),
of showing by a preponderance of the evidence
that the discharge would have taken place even
absent Kinsel's openly expressed support for the
Union
Before Kinsel contacted the Union on October
11, he had spoken with General Manager Williams
and Vice President Flessner in attempting to obtain
a wage increase for himself He asked for an imme-
diate $1-an-hour increase and another $1-an-hour
increase at the first of the year Kinsel and Hicks
then held a conversation on this matter on October
11 According to the credited testimony, Hicks of
fered an immediate increase of 50 cents an hour,
Kinsel replied that he could live with that, and
Hicks then held out hope for more money later
Kinsel did receive his promised increase, effective
October 1, thus raising his wages to $6 50 an hour
Williams later told Hicks that he had heard a few
days after October 11 that Kinsel had told an em-
ployee that he would not operate the crane to
which he had been assigned during the week of
October 15 unless he was paid $10 an hour Hicks
and Williams then decided that they could no
longer afford Kinsel and were "getting tired of lis-
tening to him " Hicks conceded that he did not
check the validity and accuracy of the "$10 an
hour" statement with Kinsel himself
On October 16 Hicks and Williams agreed to dis
charge Kinsel On October 17 Williams asked
Kinsel to resign When Kinsel refused, Williams
told him he would be fired That day Hicks pre
pared the termination letter that read, in pertinent
part, "I have concluded that I cannot meet your
wage demands You are being paid an extra week
to find something that is to your liking' The letter
was delivered to Kinsel by Flessner on October 18
Flessner explained to Kinsel that the reason for his
discharge was not his work, but rather it was the
inability of the Respondent to meet his wage de-
mands and the fact that Hicks did not want him
there if he was "unhappy "
Under Wright Line, an employer cannot carry its
burden of persuasion by merely showing that it had
a legitimate reason for imposing discipline against
an employee, but must show by a preponderance of
the evidence that the action would have taken
place even without the protected conduct A
judge's personal belief that the employer's legiti-
85
mate reason was sufficient to warrant the action
taken is not a substitute for evidence that the em
ployer would have relied on this reason alone 5 If
an employer fails to satisfy its burden of persua
Sion, the General Counsels prima facie case stands
unrebutted and a violation of the Act may be
found
We find that the Respondent has not shown that
it relied solely on the report that Kinsel had stated
to an individual who was not a member of the Re-
spondent's management that he would not continue
working unless he received $10 an hour Several
days prior to receiving this information Hicks had
personally negot.ated a private agreement with
Kinsel compromising his stated wage demands
Kinsel expressed directly to Hicks his satisfaction
with the immediate 50-cent an-hour increase even
though he had asked for a total of $2 an hour more
than he had been receiving Even granting the Re-
spondent's contention that it could not afford to in-
crease Kinsel's pay by $3 50 an hour more than had
been agreed on October 11, we are struck by
Hicks' admitted willingness immediately to dis-
charge Kinsel without first directly contacting him
to insure that the 110 an hour" statement had in
fact been made as reported, and, if so, ascertaining
Kinsel's reason for breaking their bargain so quick-
ly Surely, a concern about the accuracy of the
third party's assertion reflecting Kinsel's attitude
would prompt some substantiation before discharg
mg Kinsel, particularly given Kinsel's acceptance
only a few days before of an hourly wage increase
a dollar and a half below that which he originally
had requested Further, the Respondent has not
shown that its normal practice is to discharge em
ployees who are "unhappy" with their wage rates,
nor has it presented any evidence that Kinsel re
fused to carry out his crane assignment because of
the pay rate or that he was otherwise insubordinate
in any way
Based on the foregoing, the Respondent has
failed to carry its burden under Wright Line of per-
suading, by a preponderance of the evidence, that
it would have decided to discharge Kinsel on Oc
tober 16 in the absence of its knowledge that he
had spoken to a high management official about
unionization of the plant Accordingly, we find
that the discharge violated Section 8(a)(3) and (1)
of the Act 6
5 Delta Gas Inc 282 NLRB 1315 (1987)
6 Member Johansen would find that the discharge was unlawful (at
least in the context of an organizing campaign) even was he to accept the
Respondents explanation See his dissent in Adelphi Institute 287 NLRB
1073 (1988)
86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The General Counsel has excepted to the
judge's failure to find that in a conversation on Oc-
tober 20 between the Respondent's admitted agent
Fiantaco and employee Kelly Miller, Fiantaco-as
alleged in the complaint-threatened Miller with
discharge in the event he decided to support the
Union The judge had analyzed the conversation as
not including such a threat, and he found, instead,
an unalleged promise of benefit in this conversa-
tion 7 The Respondent complains that it had no
notice of any such promise of benefit allegation As
we explain below, we believe that the contents of
the credited conversation, including as it does both
the alleged threat and a promise of benefit, are so
closely intertwined with the threat as to provide
proper notice of the substance of the allegation
It is significant, in the first instance, that the
Miller Fiantaco conversation followed on the heels
of the discriminatory discharge of union activist
Kmsel and an incident in which Fiantaco unlawful-
ly gave Miller and other employees the impression
that Hicks was going through the plant checking
out employees against a list of union sympathizers
As further background to the October 20 conversa-
tion, Fiantaco had told another employee that
Kinsel had been fired for union activities and that
that employee would also be fired if the Respond-
ent found out he wanted a union 8
On October 20 Fiantaco told Miller that Miller
was "up for" Kinsel's then vacant job, which
would have meant a promotion for Miller Fian-
taco said Kinsel had "messed all that s- up" and
would "never see Hicks Oil again " Fiantaco
wanted to know first, though, how Miller "felt
about the whole situation " After some further
probing, through which Fiantaco identified Miller's
father as a union man , Miller sensed that Fiantaco
was asking how Miller felt about the Union and
implying that his employment situation with the
Respondent depended on it Miller refused to
accede to this pressure and told Fiantaco he would
7 The complaint had also alleged that the Respondent through Fore
man Fiantaco had interrogated Miller and created the impression of sur
veillance during this conversation The judge found that the unlawful in
terrogation took place and he dismissed the impression of surveillance al
legation We find no merit in the Respondents exception concerning the
interrogation finding and we note that no exception was taken to the
judge s dismissal of the impression of surveillance allegation based on this
conversation
8 The testimony credited by the judge in this connection is somewhat
ambiguous Foster the recipient of this threat testified that Fiantaco said
Kinsel was fired from a job before because of trying to get a union in
there The Respondent argues that this statement refers to the conduct
not of the Respondent but of a former employer of Kinsel The quoted
statement standing alone might reasonably be interpreted that way
However it was followed by the direct threat to Foster [Fiantaco] said
I d be let go too if I was found out you know about wanting a union
in Viewing the conversation as a whole we cannot say the judge erred
in attributing to Fiantaco the expressed opinion (rather than knowledge)
that the Respondent discharged Kinsel for union reasons
either vote for the Union or not according to what
he thought was right for him Six days later the
Respondent terminated Miller, as the judge found,
because he appeared to be prounion
We do not view the judge's characterization of
the October 20 conversation as either a threat or a
promise of benefit In the context in which Fianta-
co's remarks occurred they constituted both a
threat of discharge and a corresponding promise of
benefit that is sufficiently related to the alleged
threat to withstand the claim of lack of notice The
key to the dual nature of Fiantaco's inquiries re
garding Miller's union sympathies is in his continu-
ing use of Kinsel as an example of how a Hicks
employee could lose his job Fiantaco clearly
linked Kinsel's fate to Miller's prospects The plain
implication was that Miller would have Kinsel's
job (a promotion) if he did not support the Union,
and he might have no job at all if he did The fact
that the second contingency occurred only a few
days later reinforces the threat aspect of Fiantaco's
conduct
REMEDY
We agree with the judge that a remedial bargain
mg order is appropriate Concerning the composi
tion of the appropriate unit , we shall first include
Kinsel in the unit because we have found, contrary
to the judge, that his discharge was discriminatory
Second, the Respondent disputes the judge's find-
ing that employees Miller and Bowlin, who signed
valid authorization cards, were permanent employ
ees who were eligible to be part of the unit The
judge included them because he determined that
both would have become permanent employees but
for their unlawful terminations We need not specu-
late here on the correctness of that prediction
about what would actually have occurred if the
two had not been discharged Those matters, as we
note below, may be litigated in the compliance
stage
We do find, however, based on credited record
testimony, that before his discharge Miller was a
regular employee with an indefinite tern' of em-
ployment and a reasonable prospect of continuing
employment He was hired to do welding as part
of the Respondent's regular maintenance crew, "till
the job was done," and was continually told that
management was considering whether to keep him
on permanently The Respondent's vice president
asked Miller whether he planned to stay perma-
nently and raised with him an issue being discussed
among the employees regarding whether they pre
ferred to be paid every week rather than every 2
weeks Further, Miller plainly shared a sufficient
community of interest with unit employees to be
HICKS OILS & HICKSGAS
included in the unit His employment status was
analogous to that of an includable probationary em-
ployee See Johnson 's Auto Spring Service, 221
NLRB 809 (1975 ) Moreover , its indefinite duration
distinguished him from a temporary employee for
purposes of unit eligibility J P Sand & Gravel
Co, 222 NLRB 83, 84 fn 2 ( 1976) For reasons
that will appear below , we need not pass on Bow
fm's inclusion
In agreement with the judge , we find that a suffi-
cient number of valid authorization cards were pre-
sented to show that the Union represented a major-
ity of the unit employees All the signers of the
seven contested cards , except Jeffrey Scronce, read
them before signing , and the judge implicitly cred-
ited solicitor John Scholebo 's testimony that he
told each of them not to sign unless he was going
to "stick with" the Union Scholebo did not , except
possibly in one case-that of Andy J Queen-tell
any of the prospective signers that the only pur
pose of the card was to get an election Queen's
card is unnecessary to the Union ' s majority and we
shall not pass on its validity This moots the Re
spondent 's challenge to Queen 's status as a unit em
ployee The other nine cards counted by the judge
in establishing the Union ' s majority , plus that of
Kinsel , are valid See Horizon Air Services, 272
NLRB 243, 257-258 (1984), enfd 761 F 2d 22, 29-
30 (1st Cir 1985 ) They give the Union a unit ma
jority of 10 out of 17 if Bowlin is included or 9 out
of 16 if he is excluded
Given the Union's majority status , the circum
stances clearly warrant a remedial bargaining
order The violations were numerous and their seri-
ousness , underscored by their linkage to the Re
spondent 's owner , warrants the judge ' s conclusion
that they were "devastating" within a unit of only
16 or 17 employees In this regard , we note that
many statements attributed to the owner an intense
antiunion animus, that threats to discharge union
sympathizers came directly from the owner, and
that these threats were made more potent by the
fact that they were carried out in three instances
We do not , however , rely on the judge 's specula-
tions concerning Owner Hicks ' financial reasons
for wanting to keep any union out The violations
themselves make it highly unlikely that a free and
fair election could be held Moreover , no mitigat-
ing factors have been adduced by the Respondent
to show that an election would be more feasible
now than when the unlawful conduct ceased To
the contrary , Hick 's antiunion animus remained un
abated after the unfair labor practices were com-
mitted as evidenced by his conduct in January 1985
(the incident not alleged as an independent viola-
tion), when he interrogated an employee and,
87
pounding his fist on his desk , said , ` I don 't want no
god damned union in here "
With respect to the unlawful terminations of em
ployees Miller and Bowlin , the judge resolved pre-
maturely the questions of what jobs these employ-
ees would have occupied later but for their termi-
nations and when they would have occupied those
jobs Those matters shall be reserved for the com-
pliance stage There , the Respondent will have
notice of the General Counsel 's contentions regard
mg backpay and the positions to which discrimina-
tees Miller and Bowlin, as well as Kinsel , should be
reinstated
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re
spondent , Hicks Oils & Hicksgas , Inc, Du Quoin,
Illinois , its officers, agents, successors , and assigns,
shall take the action set forth in the Order as modi-
fied
1 Insert the following as paragraph 2(a)
"(a) Offer Everett L Bowlin , Kelly G Miller,
and Gary Kinsel immediate and full reinstatement
to the jobs they would have held had they not
been terminated or, if those jobs no longer exist, to
substantially equivalent positions without prejudice
to their seniority or other rights or privileges pre
viously enjoyed , and make them whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against them , in the manner set
forth in the remedy section of the judge 's deci-
sion "
2 Insert the following as paragraph 2(b)
"(b) Remove from its files any reference to the
unlawful discharges and notify Bowlin, Miller, and
Kinsel in writing that this has been done and that it
will not use the discharges against them in any
way"
3 Substitute the attached notice for that of the
administrative law judge
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT discharge you or otherwise disci-
pline you because you join or support Teamsters
Local Union No 347 , a/w International Brother
88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO
WE WILL NOT expressly or impliedly threaten
you with discharge if you join or support Team-
sters Local 347, or any other labor organization
WE WILL NOT tell you that you were discharged
because you joined or supported Teamsters Local
347, or any other labor organization
WE WILL NOT create an impression among you
that your union activities are under surveillance
WE WILL NOT coercively question you about
your union support or activities
WE WILL NOT impliedly promise you promotions
with higher pay if you refrain from supporting a
union
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Everett L Bowlin, Kelly G
Miller, and Gary Kinsel immediate and full rein
statement to the jobs they would have held had we
not discharged them in October 1984, or, if those
jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and
WE WILL make each of them whole for any loss of
earnings and other benefits resulting from his dis
charge, less any net interim earnings, plus interest
WE WILL notify each of them in writing that we
have removed from our files any reference to his
discharge and that the discharge will not be used
against him in any way
WE WILL, on request, bargain with the Team-
sters Local No 347 and put in writing and sign any
agreement reached on terms and conditions of em-
ployment for our employees in the following bar
gaining unit
All production and maintenance employees
employed by Hicks Oils and Hicksgas, Inc, at
its Du Quoin, Illinois facility, including truck-
drivers, but excluding office clerical employ-
ees, professional employees, guards, and super-
visors as defined in the Act
HICKS OILS AND HICKSGAS, INC
Kellner W Locke Esq for the General Counsel
Mark L Juster Esq and Gary A Wincek Esq (Dorfman
Cohen Laner and Muchin), of Chicago Illinois for
the Respondent
DECISION
STATEMENT OF THE CASE
RICHARD J LINTON, Administrative Law Judge Be
cause I find that Hicks Oils committed serious unfair
labor practices beginning in June 1984, and because such
conduct renders it unlikely that the atmosphere would
allow for a free and fair election among the Respond
ent s employees at its Du Quoin Illinois plant I shall
order Hicks Oils, among other remedial provisions, to
recognize and bargain with Teamsters Local 347 effec
tive as of 18 October 1984, the date Local 347 attained
majority status based on signed authorization cards
This case was tried before me in St Louis Missouri,
on 5-7 March 1985 pursuant to the 6 December 1984
complaint issued by the General Counsel of the National
Labor Relations Board through the Regional Director
for Region 14 of the Board The complaint is based on a
charge, subsequently amended filed on 1 November
1984 by Teamstes Local Union No 347, a/w Internation
al Brotherhood of Teamsters Chauffeurs, Warehousemen
and Helpers of America (Union or Local 347) against
Hicks Oils & Hicksgas, Inc (Respondent or Hicks Oils) i
In the complaint the General Counsel alleges that Re
spondent violated Section 8(a)(1) of the Act by threaten
ing employees, interrogating them, and by creating the
impression that their union activities were under surveil
lance, and Section 8(a)(3) of the Act by discharging four
employees in October 1984 (Gary Kinsel, Richard
Foster Kelly Miller and Everett Bowlin) because of
their activities on behalf of Teamsters Local 347 and
other concerted activities The General Counsel alleges
that Respondents unfair labor practices are so serious
that a fair election cannot be conducted and that Re
spondent should be ordered to bargain with the Union
By its answer Respondent admits certain factual mat
ters but denies violating the Act
On the entire record including my observations of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel2 and the Re
spondent I make the following
FINDINGS OF FACT
I JURISDICTION
A corporation with its principal office in Roberts, Ills
nois Respondent maintains a place of business in Du
Quoin, Illinois where it stores processes and blends oil
and other petroleum products During the 12 month
period ending 30 November 1984 Respondent purchased
and received at its Du Quoin facility goods products
and materials valued in excess of $50 000 directly from
points outside the State of Illinois Respondent admits
and I find, that it is an employer within the meaning of
Section 2(2) (6), and (7) of the Act
i All dates are for 1984 unless otherwise indicated Respondents name
appears as amended at the hearing (1 107-108) References to the three
volume transcript of testimony are by volume and page
2 Counsel for the General Counsel (CGC) also filed a motion dated 27
March 1985 to correct the transcript in numerous reports on noncontro
versial matters There being no opposition the motion to correct is grant
ed (A reference to 317 should read 347 )
HICKS OILS & HICKSGAS 89
II LABOR ORGANIZATION INVOLVED
Respondent admits and I find that Teamsters Local
347 is a labor organization within the meaning of Section
2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Overview
Charles W Hicks owns and operates a group of com
panies employing about 560 employees in diverse oper
ations ranging from restaurants to blending of petroleum
products (3 405 444) Hicks owns Respondent (3 408), is
the president, and has his principal office at Roberts, Illi
nois (3 406) Two of Hicks Illinois plants (at Canton and
Pekin) have been covered by collective bargaining agree
ments with locals of the Teamsters Union for about 15
years (3 405) The plant involved in this proceeding is lo
cated at Du Quoin, Illinois some 225 miles south of
Roberts (3 406)
The Du Quoin plant is an oil and grease blending facil
ity (3 406) In the summer of 1984 after a year and a half
or more of effort (3 432) Hicks landed a contract with
Texaco to blend 1 million gallons a month of motor oils,
transmission oils, and grease (2 307, 3 407) Accommodat
ing the Texaco contract required a major expansion of
the Du Quoin facility (2 307, 3 407) Previously only six
to eight workers were employed at the plant, but the
Texaco contract tripled the number of employees at Du
Quoin over the summer and fall of 1984 (2 307-308)
This does not include the construction workers hired to
build the expansion of the physical plant under the super
vision of Foreman Pete C Fiantaco (3 466-476) A re
tired contractor, Fiantaco does extra work including
layout of the Du Quoin expansion for Hicks (3 447-448)
Vice President John Flessner works at the company
headquarters in Roberts Apparently, at least for the ex
pansion period Flessner visited Du Quoin every week,
and he sometimes was there a week at a time (3 492
514)
Hicks testified that in October he also visited Du
Quoin every week, primarily to check on the progress of
the construction (3 422-423) Hicks personally approves
every pay increase any of his 560 employees receives
(3 430 500) As Flessner described there is no rigid
chain of command separating Hicks from his managers
and supervisors (3 503-504) As the record reflects in the
testimony of several witnesses Hicks is known and re
ferred to as CW and he prefers to so identify himself
(3 404 429) Hicks certainly does not avoid communicat
ing with his hourly employees and occasionally they
may telephone Hicks, as in the case of blender John R
Scholebo (3 426) Notwithstanding that he is 79 years of
age,3 Hicks is a hands on owner manager and he re
mains a man of energy as well as achievement Hicks ex
pects (indeed, demands[) loyalty from his employees
Thus, Hicks testified on cross examination that he con
siders loyalty to be the most important quality in a
9 As his birthday falls on 2 February (3 405) Hicks was 78 during the
1984 events of this case
human, and that he does not tolerate an employees being
disloyal (3 434)
In June Hicks transferred John M Williams from a
propane plant to be the general manager at the Du
Quoin facility (2 306) 4 Hicks introduced Williams to the
employees (3 422, 492) 5 The introduction took place at a
luncheon meeting Tables were assembled from saw
horses and plywood in the middle of the plant floor for
the luncheon meeting (1 86 2 248 263) When Hicks in
troduced Moe Williams as the general manager of the
facility 8 he also informed the employees of the Texaco
contract (3 492-493) There is a sharp dispute whether
Hicks mentioned the subject of a union in his remarks I
shall cover this meeting in more detail later
On the evening of 17 October, employee Gary W
Kinsel and two other employees met with Melvin Allen,
an organizer for Teamsters Joint Council 65 at the union
hall of Local 347 and obtained authorization cards to dis
tribute to other employees (1 33, 88, 120) The following
day, 18 October, Kinsel was fired In just over a week
three other employees who had signed union cards were
terminated Everett Bowlin was laid off on 25 October
Kelly Miller was terminated or laid off on 26 October
and Richard A Foster was fired on 29 October The
complaint alleges that Respondent, through Hicks and
others, made illegal threats or engaged in other coercive
conduct during the months of June, September, October,
and November
Based on her view of the record the General Counsel,
by her trial attorney, contends that in addition to the
usual remedial provisions for backpay, reinstatement, and
a notice, an order should issue requiring Respondent to
recognize and bargain with Teamsters Local 347
For its part Respondent asserts that it had no knowl
edge of any union activities' contends that a majority of
the appropriate unit did not sign cards and argues that
even if a majority did sign cards the cards were tainted
by statements that they would be used only to get an
election
B Hicks Introduces Williams 21 June 1984
There is no dispute that in June Hicks introduced
Moe Williams to assembled employees as the new gen
eral manager 8 Complaint paragraph 5A describes the
4 Williams testified that he has the nickname of Moe (2 353)
5 Vice President John Flessner testified that there were six to eight em
ployees in attendance (3 492) Blender John R Scholebo described the
number present as 13 to 16 people ( 1 86) Similarly unloader Michael
W Ratajczyk placed the number of people at about 12 (2 248)
e The titles are somewhat puzzling for Jim Walker has the title of
plant manager (2 308 392) Yet Walker has supervision only over the
blending and lab functions (2 392) and Hicks testified that Williams has
no jurisdiction over Walker s personnel (3 407) By October Walker had
a total of three employees in his operation which he testified was ex
panding (2 398)
7 Regarding significant allegations the General Counsel would show
knowledge in substantial part through Edward Butch Johnson The
General Counsel alleges that Johnson is a supervisor but Respondent
contends that he properly is counted as nothing more than a nonsupervi
sory leadman
6 It is unclear whether Williams had a predecessor and it is quite pos
sible that Williams in view of the startup of the expansion was the initial
general manager at the plant
90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
event as occurring on or about June 1 1984, but be
cause of certain evidence introduced the General Colin
sel moves to amend the complaint allegation to read on
or about June 21, 1984 (Br at 3 fn 3) Maintenance
employee Richard A Foster testified that he switched
from part time to full time on William s first day (2 281),
and the pay increase record for him dated 6/21/84 re
fleets that Foster was promoted to full time and given a
75 cent pay increase effective 6/25/84 (G C Exh 21 )
Because the precise date is neither a material nor disput
ed issue I grant the motion to amend
The General Counsel called four employees who testi
feed concerning Hicks remarks at the meeting John R
Scholebo, Michael W Ratajczyk Williard Lee Wininger,
and Richard A Foster As already reported, Hicks intro
duced Williams and informed the employees of the
Texaco contract He told them that the contract would
mean pretty good business and that the employees
would probably get some raises (2 249, Ratajczyk) In
slightly different language , all four testified that Hicks
said that any employee talking union would be gone,
out the door, or all of them let go and replaced by
a new crew All but Foster testified that in delivering
his threats of discharge, Hicks made a hand gesture ac
companied by a Pssstl sound The hand gesture was
similar to that of an umpire thumbing out a ball player
Only Scholebo testified that Hicks remarks included a
threat to close the plant in the event the employees
wanted a union (1 87)
Hicks denied the testimony (3 422), Flessner called it a
lie (3 493),9 and neither General Manager Moe Wil
hams nor Plant Manager Walker was asked about the
subject during his testimony
Respondent argues that because Hicks has had a 15
year relationship with the Teamsters at two other plants
it is obvious he harbors no union animus As the
record reflects Pete Fiantaco hired by Hicks to oversee
the initial construction, hired workers who are union
members Moreover, there is no evidence that employees
had been discussing unions during the May-June time
frame
On the other hand, Hicks had invested $200 000 to bid
on the Texaco contract (3 432) It is entirely logical that
Hicks would prefer to have Du Quoin remain free of any
restrictions or burdens of a union contract for at least
until his expanded plant had the opportunity to produce
and make money under the Texaco contract In any
event with the exception of Scholebo s reference to
plant closure, the Government s witnesses testified in a
highly believable fashion Hicks not only admitted on
cross examination that he utilizes hand gestures but he
gestured during his testimony (3 444) I do not credit
Hicks or Flessner in their denials of the testimony
Accordingly, I find that Respondent violated Section
8(a)(1) of the Act on or about 21 June 1984 when Presi
dent Hicks threatened to discharge any employee who
discussed unionizing the Du Quoin plant I shall dismiss
9 At another point Flessner testified that Hicks at an unspecified date
before October had promised the employees a wage increase when Re
spondent began delivering oil under the contract (3 499 512) Respondent
gave wage increases to nearly all Du Quoin employees in October as a
list n evidence reflects (R Fxh 8)
the portion of complaint paragraph 5A that alleges a
plant closing tnreat
C The Status of Edward Butch Johnson
Edward Butch Johnson has worked for different
companies of Hicks about 30 years (2 382) During the
events in question here, he was on the payroll of Rocket
Supply Corporation a subsidiary of Respondent (2 373,
3 408) However, Hicks had assigned Johnson through
Johnson s superior at Rocket Supply, to work at Du
Quoin on construction principally the piping (2 383
3408) 10
Although General Manager Williams testified hat he
is Johnson s supervisor (2 309) Hicks testified that while
Johnson cooperates with the Du Quoin management, he
does not report to anyone in Du Quoin (3 409) Williams
described Johnson as being an overall maintenance
man whose work consisted of attaching pipi-lg and
meters to a lot of tanks Respondent had at its Du Quoin
plant (3 309)
Initially Johnson worked with one helper, Richard A
Foster As the work force expanded, Johnson s mainte
nance crew grew in size Johnson testified that there
were some maintenance employees helping him from
other plants of Hicks (2 385) The number of these em
ployees is not specified, nor is it clear when they arrived
Presumably they arrived no later than the summer John
son testified that around mid October there were four or
five employees, perhaps more, working with him (2 383)
Gary W Kinsel, one of the alleged discriminatees, was
hired shortly before mid August (1 20 R Exh 8) Al
though Kinsel was given the title Head of Mainte
nance (1 18 204) the parties stipulated that Kinsel was
not a statutory supervisor during the relevant period
(1 18)
In footnote 29 at 43 of its brief, Respondent moves
[T]hat the record be corrected to reflect that
Kinsle s status as a member of the unit is in dispute
Respondent stated to the General Counsel that
Kinsel would be included based on his job title but
specifically stated that because of his termination his
status was in dispute The record fails to reflect this
understanding
The record indeed fails to reflect any such understand
ing However a motion to correct the record on a
matter of substance such as this should be by separate
document rather than placed in a footnote in a lengthy
brief reflecting that a copy has been served on opposing
counsel Presumably Respondent desires to modify the
record at 1 204-207, where the parties stipulated on 12
employees, including Kinsel, who should be counted in
the appropriate unit I received that stipulation in evi
dence (1 207)
Respondent s motion is denied As a practical matter,
Respondent has no need for its motion CGC does not
seek a sneaky finding that Respondent by entering into
the stipulation that Kinsel is part of the unit has waived
10 Johnson was already at Du Quoin when Hicks introduced Moe Wd
Hams in June (2 388)
HICKS OILS & HICKSGAS 91
its entire defense as to Kinsel Nor would I make such a
finding It is clear that Kinsel s status is in dispute be
cause of his termination, and that, but for his termination
Kinsel would be part of the unit
It is undisputed that Johnson attended daily meetings
with the Du Quoin management According to Respond
ent s witnesses these meetings were simply meetings
concerning production General Manager Williams testi
feed that the purpose of the meetings was to line up work
for the next day, and that the attendees did not discuss
company policy or personnel matters (2 312) Johnson
testified similarly (2 375-376) Williams testified that he is
Johnson's supervisor, gives him his instructions, and that
we" decide what has to be done and "Butch sees that it
gets done' (2 311) It seems likely that the we means
that Johnson, based on his 30 years of experience with
Hicks companies, including 10 years as a supervisor,
participated in the meetings and offered input at them
rather than being present merely as a nonparticipating at
tendee The attendees at the daily production meetings
were Williams, PLant Manager Walker, and Art Sim
mons (a technical advisor from Texaco), bookkeeper
Betty Roberts, and Johnson (2 311, 317, 375)
Williams testified that to a certain degree Johnson
directs employees in their work (2 311) Johnson testified
that he received his production instructions for the next
day from the daily meetings, that in the mornings he
then informed his crew of the work priorities, and the
direction to go, and that the instructions he gave the
men came from the daily meetings (2 375) In short,
Johnson according to Williams and Johnson, served as
little more than a conduct relaying instructions from a
daily management meeting Under that view of things,
Johnson certainly would be only a nonsupervisory lead
man, as Respondent argues in its brief at 20
Kinsel testified that only Johnson told him what to do
and when to work overtime and that only Johnson in
spected his work (1 19, 22) 11 On occasion when Kinsel
needed to leave early, Johnson said it was fine with him
but to let Moe Williams know (1 20) or to okay it
with Williams' (1 67) On cross examination Kinsel testa
fled that Johnson's work consisted of keeping his crew
supplied with materials and making sure that we put ev
erything where he wanted it' (1 64)
Although Johnson is on an hourly rate and is paid
overtime, he does not punch a timeclock as the others
do but fills out his own timesheet which he presents to
Rocket Supply (2 376)
On occasion Johnson has initialed Richard Foster s
timecard when Foster forgot to clock in or out, but that
action by Johnson appears to have been before Williams
arrived Following Williams arrival, Foster's timecards,
when initialed, reflect Moe rather than Johnson s aria
tials
In early September Kelly G Miller was hired for
maintenance work (1 131) There is a dispute concerning
whether Miller's status was ever intended to be anything
other than a temporary employee Later, apparently
during September, Jeffery W Scronce was hired (1 131,
11 Johnson testified that if work he inspected needed correcting that he
personally made the corrections (2 377)
R Exh 8) Scronce worked as a maintenance helper or
laborer
Contract welders also were hired for maintenance
work One of these was Russ McRae (2 354, 3 439)
McRae began work in October about a week before
welder Kelly Miller was terminated on 29 October
(1 148, 172-173) Scronce testified that he helped McRae,
and that Johnson would tell McRae what needed to be
done (1 173)
There is no evidence that Respondent ever announced
that Johnson was a supervisor On the other hand, John
son clearly occupies a special position He previously
was a supervisor of maintenance and purchasing for 10
years at Rocket Supply (2 383-384), President Hicks per
sonally was responsible for Johnson s assignment to the
Du Quoin plant (3 408), and Johnson, as Williams de
scribed, has frequent contact with Hicks on Fridays
when Johnson returns to Roberts (2 354) 12
There is no evidence that Johnson recommends, effec
tively or otherwise, personnel or disciplinary actions Of
course, the supervisory indicia in Section 2(11) of the
Act are listed in the disjunctive
Based on this record, the only test of Section 2(11) ap
placable here is whether Johnson exercises independent
judgment in responsibly directing the work of his main
tenance crew The evidence is rather sketchy regarding
the duties not only of Johnson but also of Williams 13 As
to Johnson, the most favorable evidence to the General
Counsel is that Johnson attends production meetings
where the work priorities are set for the next day, that
Johnson is the only person who directs the maintenance
employees and that in so doing he supplies the materials
and makes sure the maintenance employees comply with
his directions
During September and October 1984 did Johnson, on
his own assign or reassign employees from one mainte
nance job to another? Did Johnson, on his own or by of
fective recommendation change the work priorities set
at the daily production meeting the previous afternoon
These and related questions are not sufficiently addressed
in the record Therefore the record does not establish as
the General Counsel contends (Br at 7) that Johnson
exercises independent judgment while assigning work to
employees or in directing them even assuming that he
responsibly directs them
A worker is presumed to be a statutory employee, and
the burden of proving that a worker is a supervisor
within the meaning of Section 2(11) of the Act falls on
the party who would remove the worker from the class
of workers protected by the Act Purolator Products, 270
NLRB 694 (1984), Athrens Aircraft, 259 NLRB 839, 842
(1981) enfd 703 F 2d 23 (1st Car 1983), Hydro Conduit
Corp, 254 NLRB 433, 441 (1981) I find that the General
Counsel has failed to carry her burden on this point, and
12 As Williams explained Johnson lives near Roberts a drive of sever
ul hours from Du Quoin and returns home for weekends (2 353-354
367)
11 Williams testified that his duties consisted of supervising the people
in the plant including the blenders when they were not blending under
Plant Manager Walker and that his job does not entail paperwork re
garding sales and purchases of oil (2 307 359-360)
92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that the evidence fails to establish that Edward Butch
Johnson is a statutory supervisor Hydro Conduit Corp
254 NLRB 433 (1981)
However even if Johnson is not a supervisor, Re
spondent can be held responsible for Johnson s knowl
edge and conduct if Johnson is found to be its agent
Helena Laboratories Corp v NLRB, 557 F 2d 1183 (5th
Cir 1977) It is significant that employees were aware
that Johnson attended daily production meetings with
management but that factor alone is insufficient to
clothe Johnson with apparent authority to speak for
management
Unlike the employees knowledge of Johnson s attend
ance at the production meetings , there is no evidence
that the employees were aware that President Hicks was
personally responsible for assigning Johnson to Du
Quoin or that Johnson had known Hicks for over 30
years On the other hand, the employees could see that
Johnson left every Fnday for Roberts
Kinsel testified that in mid September Johnson re
turned to Du Quoin and told Kinsel that Hicks had
asked him over the weekend in Roberts if Johnson had
heard anything about union activities and that Johnson
had answered yes, that such was the scuttlebutt
around the plant (1 25 27) 14
The out of court statement by the alleged agent cannot
be quoted by witness Kinsel to establish that Johnson
was agent for principal Hicks It would be otherwise if
Johnson himself had so testified Medline Industries, 233
NLRB 627, 632 fn 22 (1977) Stated differently, John
son s out of court statement is hearsay for the purpose of
proving agency by showing through Johnson himself,
that Johnson had conferred with Hicks in Roberts the
previous Fnday If the record independently reflected
that employees were aware that when Johnson returned
on Fridays to Roberts he frequently conferred with
Hicks then that awareness plus the knowledge that
Johnson participated in daily production meetings with
management coupled with the fact that it was Johnson
who gave the maintenance crew its orders, might well
support a finding that employees could reasonably con
clude that when Johnson spoke he spoke as Respondent s
agent I cannot find agency here however because there
is an insufficient combination of factors to indicate that
the employees could reasonably conclude that Johnson
spoke for management
Having found that Johnson was neither a supervisor
nor an agent of Respondent during the fall of 1984 I
shall dismiss the three paragraphs of the complaint alleg
mg independent violations of Section 8(a)(1) of the Act
based on Johnson s statements 15
14 Because of the conclusion I reach on the agency issue I need not
summarize this entire conversation which is made the subject of com
plaint paragraph 5B To the extent relevant I would credit Kinsel who
testified specifically and more believably over Johnson s denials (2 378)
15 Complaint pars 5B E and F In view of this I shall not summarize
the evidence on these paragraphs As with that supporting pars 5B how
ever I would credit Kinsel over Johnson
D The Discharge and Related Events
1 Gary Kinsel fired 18 October 1984
a Facts
As previoulsly mentioned, Gary W Kinsel was hired
shortly before mid August Kinsel testified that around
the first week of October he spoke to Johnson about get
ting a pay increase Although Kinsel was not certain, he
recalled that Johnson said he would see what he could
do When Johnson returned he told Kinsel that Kinsel
would have to speak with Williams (1 29, 53 68-69)
Kinsel (1 53 69) and Williams (2 321) agree that Wil
liams, when Kinsel made his wage increase pitch, em
phatically turned him down On 10 October Kinsel went
to Vice President Flessner, who Kinsel testified, talked
like we could work something out (1 29, 53) The evi
dence is rather disjointed on this topic, and it appears
that around this same time Kinsel again went to Williams
and specified that he wanted an immediate increase of $1
an hour plus another $1 per hour at the first of the year
or he was going to resign Williams again said no and re
ported the matter to Hicks (2 323) Hicks testified that
Williams telephonically reported to him concerning Kin
sel s wage request (3 410)
The following day, 11 October, Hicks visited Du
Quoin and he and Williams had a discussion with Kinsel
concerning Kinsel s wage increase request Kinsel (1 53-
54 72, 81) and Hicks (3 411) agree that Hicks offered an
immediate increase of 50 cents and that Kinsel said that
he could live with that, or be satisfied with it 16 They
agree that Hicks said he could not afford to have an un
happy employee on his payroll, and if Kinsel could not
be satisfied that Respondent would pay to move Kinsel
back to his home in Cuba Illinois 17 I credit Kinsel s
version that Hicks held out hope for more money later
As the record reflects Respondent granted pay in
creases around 17 October retroactive to 1 October to
most of its Du Quoin employees (R Exh 8 3 511) Kin
sel s increase of 50 cents raised him to $6 50 an hour
Several of the increases for other employees were for
similar amounts
The evening of 11 October Kinsel contacted a Team
sters official who advised Kinsel to contact organizer
Melvin Allen (1 28, 72) Kinsel contacted Allen and they
scheduled a meeting for the evening of Wednesday 17
October, at the union hall in West Frankfort Illinois
(1 29, 72) According to Kinsel who testified unpersuasi
vely on this point he contacted the Union from desire
for protection and representation rather than based on a
motivation for higher wages (172-73) I find that the
desire for higher wages weighed at least as much as
other factors in prompting Kinsel to call the Union
As earlier noted Kinsel was fired on Thursday 18 Oc
tober Kinsel testified that during his last week he operat
16 Williams testimony on this subject is substantially different (2 328) I
find his testimony that he personally informed Kinsel of the 50 cent in
crease on the shop floor with just the two of them present and that
Kinsel said it was unacceptable to be unreliable
i9 Kinsel had moved from Cuba Illinois in taking the job with Re
spondent at Du Quoin
HICKS OILS & HICKSGAS 93
ed a crane with the erection crew headed by Andy Long
(1 61-62) At trial Kinsel testified that a fellow employee
had informed him that Pete Fiantaco, foreman of the
construction crew, was spreading a rumor that Kinsel
had informed Andy Long that Kinsel had said he would
not operate the crane unless he was paid $10 an hour
(1 62, 78) Fiantaco was not asked about that subject
dunng his own testimony Kinsel testified that he did not
make that statement on 16 October or at any time, nor
did he make any complaint to the Company about
money after 11 October although he could not recall
whether he had complained about money to employees
(1 56, 62, 73)
General Manager Williams testified that a few days
after 11 October it was reported to him that Kinsel was
saying he would not operate the crane unless he was
paid $10 an hour (2 329) Williams reported this to Hicks
and they decided they could no longer afford Kinsel and
were getting tired of listening to him' (2 329) Hicks
confirms that Williams did report the statement attnb
uted to Kinsel by Andy Long (3 412, 440-442) Long did
not testify I's
Hicks concedes that he did not check the report with
Kinsel (3 442) Kinsel s denial that he ever stated he
would not operate the crane unless he was paid $10 an
hour is contradicted by another witness of the General
Counsel, alleged discriminatee Richard A Foster On
cross examination , Foster testified that during Kinsel s
last week of employment Kinsel complained to employ
ees that his wages were not high enough, and conceded
that Kinsel made a statement similar to the reported one
of not operating the crane for less than $10 an hour
(2 297) 1 credit this testimony of Foster
Apparently it was late on 16 October that Williams
telephoned Hicks and they decided to terminate Kinsel,
for Kinsel (130) and Williams (2 331) agree that on 17
October Williams asked Kinsel to resign Kinsel declined
Williams made his request early on 17 October When
Kinsel refused, Williams said he would have to fire him
Kinsel said he wanted the reason in writing Williams de
clined to state a reason and said that the people up
north (meaning at the headquarters in Roberts Illinois)
would come down and talk to him personally (1 31)
That same day 17 October Hicks prepared a termina
tion letter for Kinsel and gave it to Vice President
Flessner to deliver (3 412) Flessner confirms that he
took the letter because he was going to Du Quoin
anyway on 18 October (3 494)
During his redirect examination Kinsel briefly testified
that at some point on 17 October he confided to Butch
Johnson that he had talked to a union representative and
that a meeting was scheduled for that evening (1 78) I
do not credit Johnson's denial of this conversation
(2 379) 19
18 The record contains very little evidence regarding Longs status
Hicks testified that Long was involved with the steel work in the con
struction area (3 441) Thus Long possibly was an ironworker foreman
for a subcontractor He was not part of Respondent s supervision
19 Some of the questions propounded by Respondent to its witnesses
were in the form of Do you recall rather than a more direct form
asking whether in fact a conversation statement or event occurred In
some of these instances the context makes clear that the witness does of
Kinsel testified that at some unspecified time on 17 Oc
tober following his conversation with Williams he had a
conversation with Plant Manager Walker in front of
Walker s office Respondent admits that Walker is a stat
utory supervisor According to Kinsel, he asked for
Walker's opinion as to the reason for Kinsel s prob
lem "20 Kinsel expressed an inability to understand the
basis of the problem, saying that a wage agreement (the
wage increase agreement with Hicks) had been worked
out earlier (132) Walker allegedly replied Just be
tween me and you, it's union activity According to
Kinsel, Walker added that he probably would lose his
job if they" found out about it, but he would stand
behind" the employees (1 33) 21
Walker testified that he did not recall the conversation
with Kinsel (2 393, 397) Walker admits that earlier Hicks
had told Walker he was not going to meet Kinsel s wage
demands (2 394), but it is unclear whether Hicks, as re
ported by Walker, was referring to Kinsel s 10 October
request for an immediate $1 an hour increase plus an
other $1 in January, or whether Hicks was referring to
the reported statement of Kinsel about $10 an hour to
operate the crane
As already mentioned, the evening of 17 October em
ployees Kinsel, Scholebo, and Wininger met with union
organizer Melvin Allen at Local 347 s hall in West
Frankfort, Illinois West Frankfort appears to be about
25 miles or so from Du Quoin The three signed authori
zation cards at this meeting and obtained cards to distrib
ute to the other employees At a later point I shall dis
cuss this meeting in more detail
Although Walker was less than persuasive I am not
required to accept Kinsel s assertion that he had the con
versation he described with Walker The chief problem
is that it does not seem to fit very well into the space of
events This is so even though there appears to have
been some talk about union at the plant well before the
one and only union meeting of 17 October Thus Kinsel
testified that about the third week of August he raised
the subject of union representation with employee Wil
hard Lee Wininger who told him which employees
could be trusted (1 22, 24) 22 Although Kinsel, as he tes
tified, raised the subject with some other employees (pre
sumably those who Wininger said could be trusted) the
others were afraid to discuss it because of the threat
Hicks had made in June (1 71, 75) Alleged discriminatee
Richard Foster testified that there were rumors of union
talk even before October As already noted in mid Sep
tember Johnson told Kinsel that Hicks had asked about
firmatively deny that the event ever occurred Thus some of the no
answers to Do you recall questions can be misleading and indeed
unfair to the witness for it leaves the testimony open to characterization
as being weak and uncertain (regarding credibility) An affirmative or
otherwise strong denial of course is worthy of more weight in the credi
bility process than a weak I don t recall But when the question is Do
you recall a negative answer is not automatically the equivalent of I
don t recall
20 Kinsel presumably explained to Walker that Williams earlier had
given Kinsel the option of resigning or being fired
21 Complaint par 5D alleges that on or about this date Walker told
an employee that Respondent had requested the employees resignation
because Respondent was aware the employee was talking union
22 Wininger was not asked about this during his testimony
94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union activities at the plant. I mention the Johnson refer-
ence because it reflects that Kinsel was talking with
Johnson and others about unions even before October.
Johnson's remark is not binding on Respondent because,
as earlier found, Johnson is neither a supervisor nor an
agent.
Kinsel even had a discussion with Vice President
Flessner about unions at one point, apparently in early
October. Kinsel testified, on cross-examination, that on
that occasion he and Flessner discussed the possibility of
the Du Quoin facility going union, and that Flessner said
it was a matter of economics, that he wished it would
not, that it would put the Company in a bind, but that if
it did, it would be out of his hands (1:70, 71). Flessner
was not asked specifically about this during his own tes-
timony, but he denied being aware of any union activity
as of 18 October, when Kinsel was fired (3:495). To the
extent that is an implied denial of Kinsel's description of
his conversation with Flessner about a union at the plant,
I reject it. Kinsel testified in a believable fashion on this
point and I credit him.
Before returning to a conclusion on the alleged con-
versation of Kinsel-Walker on 17 October, there is one
other conversation allegedly occurring before Kinsel's
discharge. Complaint paragraph 5C alleges that in early
October Construction Crew Foreman Peter Fiantaco23
"expressed to an employee the futility of electing to be
represented by a union, and impliedly threatened to dis-
charge an employee for engaging in union activities."
In support of paragraph 5C, welder Kelly Miller testi-
fied that about 7 to 10 days before he signed his union
card he had a conversation with Fiantaco regarding the
union (1:136). Miller signed his card on 18 October
(1:132; G.C. Exh. 9). This places the conversation from
around 8 October to about 10 or 11 October. Miller testi-
fied that on this occasion Fiantaco walked up to him and
said he had just left Williams' office, where he had asked
Williams what he thought about the Union and Kinsel.
To this Williams reportedly replied that he did not care
what Kinsel did, "this union stuff isn't going to get him
shit." Fiantaco concluded by telling Miller that he, Fian-
taco, had been a union member for years, but that the
employees should wait and see what Texaco has in mind
(1:137). In answer to questions whether he could recall
ever having such a conversation with Miller, Fiantaco
answered no (3:461-464).
The General Counsel makes no attempt to explain just
how this evidence fits into the sequence of events. Even
though it is quite possible that the conversation occurred
about the time Kinsel was making his wage request-
demand of $1 an hour now and $1 in January, that still
does not explain the tie-in with the union concept. Union
talk, so far as the record shows, was sporadic. And there
is nothing to indicate that, in his conversation with
Flessner, Kinsel had expressed himself as personally in
favor of the employees bringing in a union. None of
Flessner's comments on that occasion reflecting animus.
Moreover, Kinsel did not even contact the Union until
the evening of Thursday, 11 October, and the union
meeting was not held until the evening of Wednesday, 17
23 Fiantaco is an admitted supervisor (1:6).
October. There is very little evidence that during the
days around 10 October Kinsel was talking union. There
is evidence that Kinsel's 11 October call to the Union
was somehow reported to management. And even if
"Butch" Johnson's conduct was binding on Respondent,
Kinsel's notice to Johnson of the union meeting was the
day of the meeting, or 17 October, well after the date
specified by Miller. The statement attributed to Williams
through Fiantaco would seem to relate to talking about
needing a union rather than to information that Kinsel
had contacted a union and arranged a union meeting.
Respondent argues that the statement, even if made,
does not constitute an unlawful threat (Br. at 22). In the
limited context attributed to Williams here, Respondent's
position has persuasion. Even if the allegations were dis-
missed on the basis that it is nothing more than lawful
opinion, I still would have to consider it for its value in
relation to the questions of knowledge and animus as to
Kinsel's union activities.
Weighing the evidence on this matter, I find Miller's
testimony unreliable regarding Fiantaco's alleged quota-
tion of Williams. Accordingly, I shall dismiss complaint
paragraph 5C without reaching the question whether the
statement, if made, would be unlawful.
Returning now to consider the alleged Kinsel-Walker
conversation of 17 October, we need to refer again to
the earlier conversation Kinsel had with Flessner about a
union. Flessner said it was simply a matter of economics.
On that point a suspicion could arise. Did Respondent
decide that it could not yet afford the economic burden
of a union contract at Du Quoin and decide to eliminate
Kinsel who, it knew through Flessner, had raised the
subject of a union at the plant? Did Respondent, by
Hicks or Flessner or Williams convey this attitude to
Walker so as to provide the factual basis for the remarks
Kinsel attributes to Walker? The evidence is so tenuous
and conjectural that it undermines Kinsel's credibility re-
garding his alleged conversation with Walker.
Moreover, Kinsel's testimony on his conversation with
Walker sounds unnatural. There is no evidence that he
and Walker were on particularly good terms or had ever
previously conversed on any subject. Why would
Walker feel inclined to oppose top management so as to
jeopardize his own job? Finally, the phrase "union activi-
ty," attributed to Walker by Kinsel, sounded stilted and
unnatural. Under all the circumstances, I find Kinsel's
testimony on this point unreliable, and I shall dismiss
complaint paragraph 5D concerning Plant Manager
Walker.
That brings us to the events on 18 October. Over
coffee before 7 a.m. on Thursday, 18 October, "Butch"
Johnson asked Kinsel whether he had signed with the
Union. Kinsel replied that they had taken care of every-
thing (1:44, 46). Kinsel testified that Kelly Miller and
Jeffery Scronce were seated at the other end of the table
about 6 feet or so away, but that Johnson and Kinsel
were speaking in a confidential tone (1:45).24 Johnson
24 When Miller and Scronce testified, neither was asked whether he
had overheard this exchange between Johnson and Kinsel. Respondent
argues, in effect, that their failure to corroborate Kinsel warrants an ad-
verse inference (Br. at 24). 1 draw none because the evidence is more
suggestive that they did not hear than that they did.
HICKS OILS & HICKSGAS
denies the conversation (2 379) Kinsel testified in a more
persuasive manner, and I credit him over Johnson How
ever, as Johnson has not been shown to be either a su
pervisor or an agent of Respondent, I shall dismiss com
plaint paragraph 5E which is based on this conversation
About 3 hours later that same morning or around
10 55 am, General Manager Williams called Kinsel into
the office Present in the office were Williams Vice
President Flessner, and Kinsel (1 46-47, 2 330 3 494)
Flessner handed Kinsel the termination letter from Hicks
and explained that it was not Kinsel s work but the fact
that Respondent could not meet his wage demands and
keep him happy and Hicks did not want him there if he
was unhappy (1 49 2 330, 3 495) Flessner added that Re
spondent might (in the future, apparently) need a good
man at Respondents Canton plant 25 Kinsel replied,
John, don't give me that I know better than that
(1 49) The text of the discharge letter from Hicks reads
(G C Exh 6)
Dear Gary
I have concluded that I cannot meet your wage
requirements You are being paid an extra week to
find something that is to your liking
If you wish a letter of recommendation I will be
happy to waste to anyone regarding your ability
Respectfully yours,
HICKS OIL & HICKSGAS, INC
/s/ C W Hicks
C W Hicks President
When Kinsel left the office and returned to the shop
area he encountered Johnson Richard Foster was at the
shop table 8 to 10 feet or so away from them and, with
the noise in the shop, Kinsel aces not think Foster could
hear the conversation (1 51) 26 Kinsel testified that he
told Johnson he had been terminated, that he thought ev
erything had been worked out, and he asked Johnson for
his opinion According to Kinsel, Johnson replied that
there was another reason and Kinsel knew what it was
Union said Kinsel Without speaking, Johnson smiled,
raised his eyebrows, and nodded in the affirmative (1 52)
Johnson concedes that a conversation occurred in
which Kinsel came and shook Johnson s hand and that
was about it The balance of his testimony on this topic
is (2 379-380)
Q Did he [Kinsel] say any thing to you at that
time?
A No
Q Did you say anything to him?
A No He did have a letter he showed me
Q What was that letter-what did the letter say?
A I don t recall
Q Did you at any time indicate that union activi
ty was the reason he was terminated?
A No
25 Flessner described Kinsel as being a real craftsman (3 494)
26 Foster was not asked about the conversation during his own tests
mony as a witness for the General Counsel
95
Q At any time do you recall discussing with Mr
Hicks the possible union activities of Gary Kinsel9
A No
Q Do you recall discussing with Mr Hicks the
union activities of any employee?
A No
With a further question on direct examination, and a
series of direct (rather than Do you recall? ) questions
on cross examination, Johnson affirmatively stated that
he had never discussed union activity with Hicks,
Flessner, or Walker although he had discussed the sub
ject with Williams after Kinsel's termination (2 380-381)
He admits, however that after Kinsel s termination there
was a rumble around the shop on union activity
(2 380)
Kinsel testified on this conversation with more open
ness and gave more specifics than did Johnson Because
Kinsel was more persuasive than Johnson I credit
Kinsel However because the evidence does not establish
that Johnson is either a supervisor or an agent of Re
spondent, I shall dismiss complaint paragraph 5F
Alleged discriminatee Richard A Foster testified that
following Kinsel's discharge, and around 18 or 19 Octo
ber, Construction Crew Foreman Pete Fiantaco called
him aside, told Foster that he, Fiantaco, was for the
Union, and cautioned Foster that if he signed with the
union, to do it secretly Kinsel had been fired, Fiantaco
continued, because he had teed to bring in a union
Foster also would be terminated if Respondent learned
that he favored bringing in a union , Fiantaco warned
Fiantaco concluded by urging Foster to bring a union in
at that time because Hicks was not making any money
dust then and he did not want a union brought in until
later Fiantaco expressed the opinion that a union cam
paign at that time could drive Hicks to his grave (2 283)
Fiantaco denied this testimony only in part, saying that
he never told an employee that he was not against unions
or that the employees should wait before bringing in a
union, or that the union talk would drive Hicks to his
grave (3 464 479)
Foster testified in a straightforward manner, freely ad
mitting unfavorable facts both regarding himself and
Kinsel By contrast Fiantaco testified in an unpersuasive
manner I credit Foster
Accordingly as alleged in complaint paragraph 5G2, I
find that on or about 18 October Fiantaco threatened an
employee that he would be discharged if Respondent
learned that he was engaging in union activities Para
graph 5G1 alleges an interrogation during, apparently
the same conversation, and as no evidence was presented
concerning an interrogation I shall dismiss paragraph
5G1
b Conclusion regarding Kinsel
Although Construction Crew Foreman Fiantaco s
statements to Foster raise a suspicion that Respondent
learned that Kinsel had arranged a union meeting and
fired him for it, I find that the evidence falls short of es
tablishing a prima facie violation First, Fiantaco was not
in Kinsel s chain of supervision and he was not involved
96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in Kinsel s discharge Because of Fiantaco s indirect rela
tionship I assign less weight to the remarks than I would
had Flessner or Williams, for example made the state
ments Thus, Fiantaco s comments could well have been
his personal interpretation of bits of information he had
received rather than a reflection of a position he heard
Hicks Flessner, or Williams express behind closed doors
As already noted any statements by Johnson are not at
tributable to Respondent because the evidence falls short
of establishing that Johnson was either a supervisor or an
agent of Respondent during the relevant period
More importantly, there is solid evidence that the
event(s) triggering Respondents decision to discharge
Kinsel was his reported statement that he would not op
erate the crane for less than $10 an hour Despite Kin
sel s denial of this statement the testimony of alleged dis
criminatee Richard A Foster established that Kinsel did
make the statement
Accordingly, I shall dismiss complaint paragraphs 6A
and F, which allege hat Respondent unlawfully dis
charged Kinsel
2 Kelly Miller laid off 26 October 1984
a Facts
On 4 September, the day after Labor Day, Respondent
hired Kelly G Miller as a welder for the maintenance
crew (1 131) There is a question whether he was hired
as a regular or temporary employee Respondent laid
Miller off on either 26 or 27 October
Before summarizing the details of Miller s employ
ment I first shall address some allegations that bring the
sequence of events forward from Kinsel s termination
Miller testified that around 17 or 18 October Construc
tion Crew Foreman Fiantaco came by where Miller was
working inside the plant Miller inquired how Fiantaco
was doing and they engaged in some small talk Fian
taco eventually raised the subject of the Union and
stated that Hicks had a list of names that he was going
through Although Miller testified in a somewhat dis
jointed fashion on this topic, the implication of his tes
tionmy is that the names on the list were those of union
sympathizers 27 Miller also testified that later that day or
the next he observed Hicks and Fiantaco walking
through the plant looking at a list of names and then
looking at different employees (1 138 139) Employee
Richard Foster testified that about this same time
around 18 or 19 October he observed Hicks and Wil
Hams walking around the plant looking at a piece of
paper and pointing into the crowd of people (2 284)
Foster did not see what was on the paper, but could see
that it did not look like an order (2 300) 28
Miller further testified that about this same time he
and employee Jeffrey Scronce were in the shop area cut
ting or threading pipe Miller observed Fiantaco talking
27 Complaint par 5J alleges that Respondent through Fiantaco there
by created the impression that employees union activities were under
surveillance by advising an employee that Respondent had a list of union
sympathizers
28 Complaint par 5H alleges that Respondent through Hicks while
walking through the plant created the impression among employee that
employees union activities were under surveillance
with separate groups of employees and then conferring
with Hicks as they looked at a list Moments later Fian
taco came over and told Miller and Scronce that the
union talk was driving the old man meaning Hicks so
crazy that he was about to have a heart attack Fiantaco
added, He s old You guys ought to wait until he starts
producing some oil You ought to get at least 20 or 30
men in here before you all start talking union stuff
Concluding Fiantaco said that he Fiantaco, had been a
union man for many years that he knew what he would
do, but you do what you want to do (1 140-141) 29
Miller testified that as Fiantaco walked outside he fol
lowed him and observed Fiantaco sitting in a Lincoln
automobile talking with Hicks (1 141)
Scronce who was still employed with Respondent at
the time of the hearing also testified concerning the 19
October incident when Fiantaco came to where they
were in the shop area According to Scronce, Fiantaco
spoke to Miller while Scronce threaded pipe on a noisy
machine some 6 or 7 feet away Because of the noise, his
working, and the distance between them, Scronce testa
feed that he heard only one remark by Fiantaco which is
that right now is not the time to bring in a union (1 173-
174, 175-176)
There is no dispute that it is not at all unusual for
Hicks to walk through the plant carrying papers includ
ing sketches Fiantaco would make for him and checking
on the progress of the construction Hicks testified that
the only time he ever carried a list of employees names
on a tour was when he was checking the work the em
ployees on the list were doing that day (3 426) Hicks
denies ever discussing the Union on these tours with
Fiantaco or others (3 426) Fiantaco denies (1) ever car
rying a list of names (2) knowledge of any union sympa
thizers and (3) ever telling Miller or others that the
union talk was driving Hicks crazy or to his grave
(3 460 464) Williams did not address the subject of the
tours with Hicks There is no dispute that it is not unusu
al for Hicks and Fiantaco to sit together in Hicks auto
mobile as a place to confer away from the dust and the
noise during inclement weather (3 428 465, 466) Both
Hicks (3 429) and Fiantaco deny that they ever discussed
unions or union activity of employees (3 466)
I credit Miller who testified with apparent sincerity
concerning these allegations I do not believe the denials
of Hicks or Fiantaco for they did not testify in a persua
sive manner Although Scronce s version of the one inci
dent involving Fiantaco corroborates Miller in part only,
that part is significant
There is some question whether these incidents oc
curred on 18 or 19 October or possibly a few days later
Even though Miller (1 135 G C 9) and Scronce (1 167,
G C Exh 11) signed their union cards on 18 October,
the day Kinsel was fired it appears that Hicks was not at
the plant on 18 October On 17 October Hicks gave
Flessner the termination letter to deliver to Kinsel at Du
Quoin the next day This does not mean that Hicks was
not present on 19 October, of course and these incidents
29 Complaint par 51 alleges that on or about 18 October Fiantaco ere
ated the impression among employees that their union activities were
under surveillance
HICKS OILS & HICKSGAS
could well have occurred on that date a Friday It also
is possible that they did not occur until sometime the fol
lowing week So far as these allegations are concerned,
the difference of a few days is immaterial Thus, I find
that around 19 October 1984, Respondent, through the
conduct of President Hicks and Construction Crew
Foreman Fiantaco unlawfully created the impression
among its employees that their union activities were
under surveillance The key to the unlawfulness is that
Fiantaco told Miller about the list of union sympathizers
and that Hicks was checking it Miller and the other em
ployees were in no position to separate Respondents le
gitimate tours from its illegal one It was Respondent
who tainted its own routine inspection tours, and there
fore it was Respondents burden to remove the taint
before undertaking another tour This, of course, it failed
to do By Respondents creation of the impression of sur
veillance, it violated Section 8(a)(1) of the Act, as al
leged
When Miller was hired he was working at Willi Oil, a
popular service station in Du Quoin, and he continued
working (presumably part time) there during his employ
ment with Respondent (1129, 142) Both Williams
(2 314) and Ffantaco (3 461) buy their gasoline there On
previous occasions Miller unsuccessfully had inquired of
Williams if Respondent was hiring (1 129) Apparently
he did the same with Fiantaco until on one occasion
shortly before Labor Day Miller asked if Respondent
needed a welder In surprise Fiantaco asked if Miller was
a welder Miller replied that he had completed welding
school, where he had earned all As and a certificate,
but he needed welding experience (1 130) Fiantaco re
ported this to Williams who, testifying that he needed a
welder (3 315), contacted Miller Thereafter, Miller went
to the plant to see the work, expressed confidence to
Williams that he could do the work, and was hired by
Williams (1 130-131, 152)
As for the term of employment Williams referred to
the available welding to be done (1 153, 2 315) Several
times after going to work for Respondent Miller asked
Williams if his job was permanent, and Williams always
answered Were still looking into that Miller con
cedes he never was told he was hired on a permanent
basis (1 153) However, around mid October or a bit
later, Flessner discussed with Miller the prospect of Mil
ler s continuing to work after the construction was com
pleted (1 149-150) Flessner even inquired of Miller
whether he thought it would be better for the employees
to be paid every week rather than every 2 weeks
Flessner did not address this conversation during his
own testimony
Miller testified on Saturday 20 October, he worked
his other job at the service station About 6 p in Fian
taco pulled in and told Miller he had to talk to him
(1142) Fiantaco said the Old Man" had called the
night before and again that morning30 and wanted Fian
30 As earlier discussed Hicks could have been in Du Quoin on Friday
19 October He also could have returned to Roberts the same day and
called Fiantaco from Roberts that evening and again the morning of 20
October
97
taco to talk to Miller and his dad Miller , Fiantaco said,
was up for Gary s job 31 that Miller could be making
$250 to $300 a week and maybe more if Texaco allowed
a raise for everyone in January (1 143)
When Miller asked why he was being considered for
Kinsel s position, Fiantaco answered that it was because
Hicks had been watching Miller and that Hicks had
asked how good a boy Miller was, and that Hicks had
said that Miller was doing good work, which Fiantaco
confirmed to Hicks (1143) Miller inquired why he
wanted to speak to Miller s father, but at that point the
conversation was interrupted while Miller serviced some
customers
On resuming their conversation, Fiantaco said that
Hicks had given that boy a job, a place to stay, money
to move to Du Quoin, and all he had done was (using
profanity the witness declined to repeat) messed it up
(1 143) 32 Fiantaco added that he' (a reference to `that
boy, meaning Kinsel) would never come back to work
at Hicks Oil
After Miller serviced more customers, Fiantaco said
that Hicks wanted him to find out how Miller felt 3 a
Miller asked about what He just wanted to know how
you felt about the whole situation, Fiantaco replied
Miller kept listening and Fiantaco repeated that Miller
was up for Gary s job and that He s going to talk to
you about everything next week What about,' Miller
inquired He [Hicks] wants to see how you feel, Fian
taco replied Miller again asked what about Coming
closer to his point Fiantaco remarked that he had been a
union man for many years, that Millers dad is a union
man and that Fiantaco knew how the elder Miller con
ducted himself but that the younger Miller should do as
he wished
Miller finally forced the issue by asking Fiantaco
whether he was asking how Miller would vote on the
Union Miller merged this into a question asking that if
he told Fiantaco he would not vote for the union when
it all comes up, how would Respondent know because
anyone could say he would not and then vote yes Miller
concluded his part by saying that he would do what he
felt was right what was best for job security and what
would earn him money because he was simply trying to
get experience welding (1 144-145) Fiantaco ended the
conversation with the statement `You just do what you
want but I know what I'd do You just do what you
want Six days later Miller was terminated
Fiantaco testified that he recalled no such conversa
tion and he denied ever telling Miller that Kinsel would
never return to Hicks Oil (3 461-462, 464) According to
Fiantaco, all Miller ever said to him at the station was to
ask when he was going to be put on steady, to which
Fiantaco replied that he knew nothing about it (3 461)
Hicks denied knowledge of any union activity by Miller
91 An obvious reference to Gary Kinsel s former position
32 The phrase that boy used in conjunction with the moving expense
and the earlier reference to Gary is a clear reference to Gary W
Kinsel
as Miller had signed a union card on 18 October for employee John R
Scholebo but no one else saw him and Miller never engaged in any other
activities or told anyone that he had signed (1 34-135 157)
98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and denied discussing such with Flessner, Williams, or
Walker Oddly, Fiantaco was not included in the list
enumerated by Hicks, nor did Hicks specifically address
the substance of Miller s testimony about his conversa
tion with Fiantaco other than as his denial of knowledge
about union activities by Miller operates as a denial of
everything (3 419-420)
Before reaching the issue of Millers termination and
the question whether he sealed his doom by not cor
rectly answering Fiantaco s questions as CGC argues
(Br at 28), we need to consider the foregoing conversa
tion in conjunction with complaint paragraph 5K That
paragraph alleges that on or about 20 October Fiantaco,
at Du Quoin gas station (1) told an employee that his
union activities were under surveillance, (2) threatened
him with discharge for his union activities, and (3) inter
rogated him concerning his support for the Union
On the latter issue there can be no doubt that if Miller
is credited, Fiantaco blatantly (with an initial weak at
tempt at being ambiguous) interrogated Miller expressly
on behalf of President Hicks and that such conduct was
unlawful
I closely observed the witnesses as they testified I
credit Miller because he testified with apparent sincerity
and in specific detail, including the interruptions by cus
tomers at the service station By contrast the testimonial
demeanor of Hicks and of Fiantaco was flat and unper
suasive, and I do not believe them I therefore find that
Respondent violated Section 8(a)(1) of the Act by Fian
taco s interrogation as alleged
Do Fiantaco's remarks constitute even by implication,
telling Miller that his union activities were under surveil
lance') Do they constitute a threat of discharge because
of his union activities? I do not find an implied statement
of surveillance of union activities, nor do I find a threat
of discharge Aside from the interrogation the essence of
Fiantaco s remarks was a promise of promotion if he re
frained from supporting the Union The promise would
be all the more clear if the evidence showed that Kinsel
had been fired for his union activities, and I recognize
that on this record the messing up as to Kinsel s case
prinicipally means his $10 an hour wage demand to oper
ate a crane However, the rest of Fiantaco s references
fashion an image of concern about the employees bring
ing in a union , and Miller s response to Fiantaco at the
service station that 20 October demonstrates that is ex
actly the way he understood Fiantaco s message, and
Fiantaco s parting response served only to confirm Mil
ler s understanding
Accordingly, I shall dismiss complaint paragraphs 5K1
(surveillance) and 5K2 (threat of discharge) for lack of
supporting evidence On the other hand, after the con
versation was elicited'34 Respondent did not object that
it was immaterial nor move to strike the testimony as un
supported by any pleading Moreover Respondent did
not move that (CGC) state on the record that the Gener
al Counsel would not seek a finding of unlawful promise
94 Following CGC s announcement on the record that he was about to
cover complaint paragraph 5K (1 142)
since it was not alleged 35 Had such a motion been
made, CGC might well have moved to amend the com
plaint Finally although Respondent did not cross exami
nation Miller concerning the service station conversation
on 20 October with Fiantaco it did fully litigate the
matter by eliciting rebuttal testimony on the subject from
Hicks and Fiantaco I therefore find that Respondent
violated Section 8(a)(1) of the Act by impliedly promis
ing an employee a promotion with higher pay if he re
frained from supporting the Union
Before we reach Miller s termination, there is another
incident of 20 October to cover Blender John R Scho
lebo testified that on Saturday 20 October, Construction
Crew Foreman Fiantaco gave him a ride home from
work During the trip Fiantaco said that Hicks36 was
all upset about the union and thinks the employees
should wait a couple of years before getting a union be
cause now is not the time (1 103) 37 Fiantaco denies ever
saying that union talk was driving Hicks crazy or that
employees should wait a few years to organize (3 464) I
note that he does not deny giving Scholebo a ride on or
about 20 October I credit Scholebo who testified in a
persuasive fashion and with specificity
I should note that Pete C Fiantaco s rather modest
title of construction crew foreman is rather misleading
Fiantaco is a retired general contractor who came out of
retirement 18 months ago to supervise construction addi
tions for Hicks at Du Quoin Fiantaco s first work for
Hicks was in 1976 when, as a general contractor, Fian
taco constructed one of the plant buildings at Du Quoin
(3 447-448, 458 483-484) When Hicks came to Du
Quoin in October he frequently would confer with Fian
taco regarding the construction Hicks has invested heav
ily in the Du Quoin expansion and he looks forward to
earning a profit from the Texaco contract Because of
the nature of Fiantaco's current work, and because of his
past relationship as a general contractor for Hicks it is
clear that Fiantaco enjoys a much closer relationship to
Hicks than the modest title of foreman suggests
We now turn to Miller s termination Williams testified
that he hired Miller on a temporary basis to weld heating
coils in certain oil tanks (2 314 315) 38 The oil would be
heated by steam in the coils (1 155) The tanks rise 15 to
20 feet off the ground (1 155) Some of the welding was
at such an angle that the welder could not see the spot
to be welded (1 155) The welding would be pressure
tested for leaks (2 316), for leaks (of water) into the oil
would ruin the 15,000 gallons of oil in the tank (1 156
2 317) Williams testified that some of Millers welds
would leak and that Miller had to reweld them (2 316)
ss Where both the General Counsel and the ALJ agree that certain
facts or theories are not in issue in the case it is error for an AJL to find
a violation or rely on those facts or theones in reaching a decision in the
case Herman Bros 264 NLRB 439 440 fn 3 (1982)
36 Fiantaco actually said CW The record is clear that Hicks is
known by his initials
34 This incident was not alleged in the complaint and the General
Counsel relies on it only for purposes of animus (1 103)
se Hicks testified that he gave Williams approval to hire Miller on a
part time basis (3 418) Hicks classified it as part time because Miller also
continued to work at his service station job (3 418) The record does not
reflect the hours Miller worked at either job
HICKS OILS & HICKSGAS
Miller concedes this, but explains that the leaks were of
the pinhole type, which are normal in welding (1 156-
157)
Williams testified that Art Simmons a technical advi
sor from Texaco, suggested that perhaps Respondent
should get a more experienced welder to do the job, and
that he, Williams, conveyed this message to Hicks
(2 317) 39 It appears that Hicks set about to find a con
tract welder and, according to Williams, on Friday, 26
October, Hicks called and informed Williams that he had
found a contract welder to send to Du Quoin and that
Williams should lay Miller off (2 317-318, 3 417) Wil
liams testified that the contractor Hicks mentioned was
not hired and that, instead, Plant Manager Walker hired
a local welding contractor named Jess Kennedy (2 318)
In his testimony Hicks mentioned Kennedy, but not the
other contractor he supposedly had hired In fact an
other local welding contractor named Russ McRae had
been hired and had begun work on Monday 22 October
(148-49, 172-173) Williams testified that Respondent
had plenty of welding work (2 354)
Miller testified that about 9 30 a in on Friday, 26 Oc
tober, Williams informed Miller that he had some bad
news They walked to the office where Flessner told him
that he had Miller s last check, that he was trying to cut
down on the overhead Miller asked if he had done any
thing wrong because he did not want to give Respondent
as a reference and then behind Miller s back they say he
was not very good Flessner responded that the quality
of Miller s work had been splendid Williams interjected
a reminder that he had not bothered Miller and that in
itself showed that Miller was doing all right Flessner re
stated that it simply was a matter of cutting down on the
overhead, and that Respondent had hired a contract
welder and that he was going to concentrate on a differ
ent aspect of the job (1 146-147)
Flessner testified that before going to Du Quoin he
had studied Respondents financial records and discov
ered that the budget was a long way out of line and
in terrible shape really He testified that the decision
was made to reduce overhead He recalls that it was
Williams who, in his presence notified Miller of his ter
mination Flessner admits that Miller asked him whether
it was because of his work and that he said , No, Kelly,
it isn t because of your work We re trying to reduce
overhead (3 496) Flessner denied knowledge of any
union activities at the plant (3 496) Flessner also testified
that the recordkeeping at Du Quoin was bad then be
cause there was only one employee handling it but Re
spondent finally got its inventory records computerized
(3 498)
According to Williams, in the office he notified Miller
that he was laid off, and he apologized for not being able
to give him a week's notice (2 319) Williams did not tes
tify whether he offered any explanation for the layoff A
discharge slip in evidence as General Counsels Exhib
it 18, and bearing the date of 10-27-84,' records that
Miller was `Laid Off because
Temporary help welding-job completed
39 Simmons did not testify
99
The form is signed by Williams The record does not re
flect whether a copy of the form was tendered to Miller
or whether it simply is an internal record of Respondent
Williams testified that the form is for Respondents bene
fit to check a date and that some of them do not show a
reason (2 363)
Although in different words all three agree that Miller
asked whether the termination had anything to do with
the Union, or union rumors, to which Williams and
Flessner replied in the negative and/or asked What
union' (1 47, 2 319, 3 496) As does Flessner, Williams
denies knowledge of any union activities by Miller
(2 319)
In a dramatic difference with Flessner, Williams testa
feed that the true reason Miller was terminated was be
cause his welding was unsatisfactory (2 354) He con
cedes that he did not tell Miller this at the termination
interview (2 354) Williams vacillated during cross exams
nation whether the reason on the discharge slip would be
the true one, at first saying not necessarily and then
testifying, It would be a true reason (2 355) When
handed the form for Miller, Williams identified his own
signature and then denied that the reason shown on the
form was the true reason (2 355) He disingenuously ex
plained that the stated reason says job completed, and
that His job was completed but our welding jobs
weren t (2 355) He then reiterated that the true reason
was unsatisfactory work, and that his testimony moments
earlier that the form contains the true reason was not an
accurate statement (2 356)
b Conclusions as to Miller
Miller testified with apparent sincerity, in a straightfor
ward manner, and with a persuasive demeanor In con
trast Williams and Flessner were far from credible This
is particularly true regarding Williams who demonstrat
ed a strong tendency to testify in a deceptive manner
and, indeed, in a self contradictory fashion For that
matter, Respondents defense as to Miller suffers because
Flessner essentially confirms much of Miller s version of
the discharge interview, yet Williams testified that the
real reason was (in effect) not that given by Flessner
Miller (a need to reduce overhead but Miller s welding
quality was good), but a new one-poor quality welding
by Miller
Although Respondent was not required to call Tex
aco s Art Simmons as a witness , I am without the benefit
of his testimony Similarly, while Respondent has no
legal burden to produce any of the records showing that
it has overspent its budget at Du Quoin (or more accu
rately that it suddenly discovered that its budget was in
terrible shape) such records could have helped in the
credibility resolution process I note that Flessner made
no attempt to explain how the budget would be helped
by hiring Russ McRae on Monday while terminating
Miller and hiring Jess Kennedy 4 days later-particularly
if Miller was only temporary, as Respondent contends
Although Hicks testified that Kennedy carried his own
insurance, he did not say whether this was medical, li
ability or both (3 419) As to medical insurance, Re
spondent did not explain how much extra Miller, on a
100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
group policy, would cost But at his hire in rate of $5 an
hour (2 315), one would assume that Respondent would
have some monetary leeway before reaching the cost
factor for a welding contractor Liability insurance (to
cover the loss of a tank of oil) would be an economics
factor I note however, that Hicks did not testify that
Respondent does not carry its own insurance covering
such a loss
Regardless of these factors however, the principal fact
remains that I credit Miller In disbelieving Hicks
Flessner, Williams, and Fiantaco I find that Fiantaco, on
or shortly after 20 October, reported back to Hicks that
to retain Miller on the payroll would mean that it was
retaining an employee who would vote union Thus,
even though Respondent may not have known of Mil
ler s union sympathies before Fiantaco's testing of him
on 20 October by Fiantaco's interrogation Respondent
satisfied itself of where Miller stood
As found earlier, in June Hicks blatantly threatened
employees with discharge if they sought to bring in a
union Hicks concedes that he quickly gets rid of disloyal
employees Regardless whether Hicks equates union
sympathy in an employee to disloyalty to Hicks, as the
General Counsel argues, I find that Hicks gave the order
to terminate Miller because Miller appeared to be proun
ion I further find that Respondent's reason (1) to reduce
overhead and (2) because of poor quality work are con
trived pretexts Indeed, the second reason borders on
being an abuse of the Board s processes Although
Flessner did not expressly disavow the reason of unsatis
factory work, he certainly did not embrace it as a sup
plement to his own budgetary reason, and he freely ad
mitted that he affirmatively reassured Miller on 26 Octo
ber that the cause of the termination was not Miller s
work (3 496) At the hearing Flessner did not assert that
he had lied to Miller on 26 October regarding the quality
of Miller s welding
Under all the circumstances I find that Respondent
has not shown that it would have terminated Miller re
gardless of any union activities by him Moreover, other
temporary employees have been converted to regular or
full time ' Richard A Foster was so converted to full
time in June 1984 (G C Exh 21) It also will be re
called that around mid October Vice President Flessner
personally asked Miller whether he planned to stay on
after the construction phase and Miller answered yes
Citing cases that employees hired for an indefinite
period are included in the appropriate unit CGC argues
that Miller s employment was for an indefinite period
rather than a temporary one and that he should be in
cluded in the unit (Br at 41) I see no need to address
that issue for the evidence is clear that had Miller re
sponded on 20 October to Fiantaco in an antiunion
manner Miller would have been promoted the following
week to the position Kinsel had just been fired from I
therefore find that on or no later than 26 October Re
spondent would have promoted Miller to that full time
position and in keeping with its past practice given him
a wage increase Although the exact amount of the in
crease can be determined in the compliance stage I note
that at his conversion Foster was raised from $5 an hour
to $5 75 (G C Exh 21) Accordingly the remedial order
will require that Respondent not only offer Miller rein
statement, but that it offer to reinstate him on a promo
tion to a full time position effective on or no later than
26 October and with backpay, plus interest, starting with
a pay rate to be determined at the compliance stage
3 Everett L Bowlin terminated 25 October 1984
a Facts
Although Construction Crew Foreman Pete C Fian
taco and Everett L Bowlin had been friends for 32
years it had been 20 years since they had last seen each
other when they met at a Du Quoin supermarket about
August 1984 (3 448, 452, 457) During the ensuing con
versation, Bowlin, a carpenter, inquired whether there
was a chance Fiantaco could get him a job Fiantaco said
he would check with Hicks when it came time to build
the forms for the anchor bolt piers On a Saturday a
week or so later Bowlin, accompanied by Fiantaco, car
tied his application, which Fiantaco in the meantime had
given him, to Williams at the plant (2 213-214 3 449)
Bowlin was hired and began work the following
Monday (2 214) This was in August (2 235)
Fiantaco testified that Bowlin was hired on a tempo
rary basis for the construction work on the plant expan
sion (3 449) 40 Williams (2 343) and Fiantaco (2 454) each
testified that he never promised Bowlin a permanent job
on the inside Bowlin testified that Fiantaco told him at
the hiring that Bowlin would work as a carpenter for
him, and that when it rained Bowlin would work inside
(2 214) Thereafter, Bowlin testified, on the days rained
he worked inside the filing oil drums, unlike the contract
employees (2 215-216) Bowlin concedes that no one told
him he definitely would have a job on the inside after
the construction was completed (2 235) However, it is
undisputed that before the hiring Bowlin told Fiantaco
that he was in dire need of funds because his wife was
suffering from cancer (2 232, 3 449)
At the hiring Bowlin also informed Fiantaco that his
wife could not get insurance coverage because of the
cancer Fiantaco responded that if Bowlin could get on
permanent that Respondent had good insurance, which
Bowlin could get (2 232) 4 i Bowlin insists that on that
occasion Fiantaco said he thought that after the con
struction job was completed he possibly could get
Bowlin a job inside the plant (2 233, 235) He further tes
tified that on an unspecified date before Bowlin s termi
nation Williams asked him what he was going to do
when the job was finished and Bowlin replied he hoped
to work inside the plant Williams responded that he
thought that could be arranged (2 232 236)
Fiantaco concedes that he told Bowlin he would put
in a good word for him when the construction was com
pleted if Respondent then needed anyone inside but he
insists that is all the discussion he had on the topic with
Bowlin and he denies ever talking to Williams about
40 Respondent also employed various skilled craft employees on the
construction work on a contract basis and the parties stipulated that
these contract employees are not part of the unit (3 471-476)
41 At points during his testimony Bowlin checked a paper his wife had
prepared listing dates of events (2 230-234)
HICKS OILS & HICKSGAS 101
Bowlin moving to an inside job (3 456-457) Fiantaco
states that he did tell Williams of the medical condition
of Bowlin s wife and that he asked Williams, as a favor
to Fiantaco, to work Bowlin inside when the outside
work had a short day and that on a few such occasions
Bowfin did work inside (3 457)
Williams confirms that he did permit Bowlin to work
inside a few times when it was raining as a favor to Fian
taco (2 342-343, 344, 345) However, Williams disputes
Fiantaco s statement that he never asked Williams to put
Bowlin on permanently Thus, Williams testified that
Fiantaco did asked him to consider Bowlin for employ
ment on the inside, but that he told Fiantaco he would
not hire Bowlin because most of the time when he ob
served him on the outside Bowlin was leaning on a
shovel talking (2 343-344)
On Thursday, 25 October, Bowlin was laid off He tes
tified that in the office on that date, Fiantaco gave him a
written notice and told him that he was laid off Bowlin
asked why, had he made someone mad Fiantaco replied
no, that it was from higher up (2 228) The text of the
`Discharge Slip checks the Laid Off' box (rather than
either the quit or fired boxes) and gives as the reason
(G C Exh 20)
Due to inclement weather conditions and reduction
in working force, Everett Bowlin temporary con
struction worker, is layed off as of October 25,
1984
Respondents name is typed in the space for a manager s
signature
On leaving the plant, Bowlin asked Williams why he
had been laid off, but Williams said he knew nothing
about it (2 228-229) Bowlin asked if it had anything to
do with the Union, and Williams answered that he did
not think so (2 244-245) Williams denies that the subject
of union ever came up in a conversation between him
and Bowlin, and he denies knowledge of any union ac
tivities by Bowfin (2 344)
Fiantaco testified that they were rained out that
Thursday42 and as Hicks earlier had asked him to hold
the construction costs down, and because Bowlin only
had a few hours work left on the job he, Fiantaco decid
ed to lay Bowlin off then even though the work of the
laborers would last a little longer (2 451) Fiantaco testi
fled that he told Bowlin it hurt to lay him off because he
knew that Bow lin s wife was ill and they had been good
friends for 32 years (2 452)
Bowlin testified that on a Saturday he telephoned
Hicks and asked why he was laid off 43 Hicks responded
42 Bowlin worked inside that morning after first being told by Fiantaco
that there would be no work that day and that he should not report to
work Saying he would check into the matter Williams allowed Bowlin
to work inside (2 227)
43 The Saturday following his termination was 27 October Bowlin tes
tified that the Saturday he called Hicks was 3 November (2 229-230) Al
though there appears to be an unaccounted for week in Bowlin s hearing
testimony causing one to wonder whether the actual date was Saturday
27 October in his pretrial affidavit of 16 November Bowlin does account
in part for the week (R Exh 2 at 2) As discussed later Bowlin s pre
trial affidavit was received for the limited purpose of a signature compar
ison I rely on the timeframe described in the pretrial affidavit simply as
an aid in understanding the evidence adduced at the hearing
that he had done it,44 that he had nothing against
Bowlin, and that if there was any work he would talk to
Fiantaco and Bowlin would be called back (2 229)
Bowlin has not been recalled
Williams testified that Bowlin was terminated because
his part of the job was complete (2 358) Hicks initially
testified that the construction work had not stopped even
as of the date of his testimony, and that an even bigger
project was about to begin (2 433) Moments later, how
ever, he qualified this to say that the construction had
continued only spasmodically and that we except to
do some construction this year " (2 438)
Flessner testified that in the fall of 1984 (1) the bills
and invoices reflected that Respondent was spending too
much money on the construction (2) the overtime was
excessive, (3) the budget was a shambles and (4) the rec
ordkeeping at Du Quoin, because of a shortage of help
and the system not being computerized, was antiquated
(3 497-498) Respondent offered no records to support
this testimony, nor did Respondent call the one book
keeper it then had, Betty Roberts, to corroborate
Flessner s testimony Although Respondent had no legal
burden to produce supporting documents or testimony
such would be of assistance in resolving credibility I
note that Flessner testified during the construction phase
he was at Du Quoin frequently sometimes a week at a
time (3 505, 514, 516) In addition to Flessner s frequent
presence at Du Quoin, Owner Hicks testified that he vis
ited the plant every week in October (3 421 422)
Indeed, Hicks testified that he constantly discussed con
struction costs with Fiantaco during the fall (3 421)
Flessner testified with an unpersuasive demeanor and
I do not believe him It was clear that Flessner measured
his testimony to conform to the strict loyalty standard
expected of him and of every employee, by Hicks And
given the frequency and duration of his visits to Du
Quoin, and the weekly visits by Hicks the owner and
president, I find it incredible in the extreme that the con
struction budget would suddenly have gotten out of
hand
This is not to say that Hicks never asked Fiantaco to
keep construction costs down I find, however, that
Flessner and Hicks kept a constant eye on expenses and
that at no point did Respondents construction budget
stray in any relevant degree from that which Respondent
had programed
Hicks denied knowledge of any union activities in gen
eral or by Bowlin in particular (3 413 418, 421) Fian
taco testified similarly (3 453) Williams denied knowl
edge of any union activity by Bowlin (2 344) Flessner
testified that the first suggestion he heard about activities
was when Kelly Miller asked about it at his termination
interview on Friday, 26 October (3 496, 497) Plant Man
ager Walker testified that there were a lot of rumors
about union cards, that in a small plant it is difficult not
to hear the scuttlebutt that he heard some 8 or 10 men
had signed, and that it seemed he heard these rumors
sometime after Kinsel had been terminated (2 394-396)
44 Hicks testified that he authorized the termination for the reason
stated on the notice (3 436)
102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In October only two employees worked for Walker, but
Walker testified that he gets around and talks to every
one in the plant (2 398)
Walker testified that there had never been any man
agement meeting held to discuss the Union, and he had
not received any instructions such as do s and don'ts in a
union campaign (2 396-397) For that matter , on cross
examination, Hicks testified that as of the moment of his
testimony he had never seen the petition, which the
Union had filed on 1 November in Case 14-RC-9907
(3 430) More than that, he asserts that no one in his or
ganization had told him about the filing, but in the same
breath he concedes that he is not too bad a supervisor
(3 430) Hicks' phrase is more than an understatement-it
is litotes It is clear that Hicks strives to keep close tabs
on everything of significance that is happening in his
plants This is particularly true regarding the Du Quoin
plant in the fall of 1984
The Union's petition seeks a unit of production and
maintenance employees, including truckdnvers,45 and
shows the name of Moe Williams" as the employer's
representative to contact (G C Exh 2)
By letter dated December 4, 1984, the Regional Di
rector for Region 14 notified the Union's attorney that
the petition was dismissed Copies of the dismissal letter
are shown to (among others) the two attorneys repre
senting Respondent in the instant hearing plus a copy to
the Du Quoin plant The relevant text of the dismissal
letter reads (G C Exh 3)
The petition herein was filed on November 1, 1984
An unfair labor practice charge was filed in Case
14-CA-17715, involving the Employer in which it
is alleged, inter alia, that the Employer has inter
fered with, restrained, and coerced its employees in
the exercise of their rights and has discriminated in
regard to hire tenure and other conditions of em
ployment against several of its employees The
charge involving the Employer was carefully inves
tigated and considered and, as it appears the Em
ployer has engaged in conduct in violation of Sec
tion 8(a)(1) and (3) of the Act so as to preclude the
conducting of a free and fair election a question
concerning representation cannot appropriately be
raised at this time I am therefore dismissing the
petition in this matter, subject to reinstatement if
appropriate upon the Petitioners application after
disposition of the unfair labor practice proceedings
Respondent makes no contention that the Du Quoin
plant never received a copy of the petition in the usual
course of mailing by Region 14 I find that it did receive
copies of the petition and the dismissal letter in the usual
course of the mail And notwithstanding Hicks testimo
ny that he had never been told of the petition I find that
he was promptly informed of it, probably by Williams in
early November
But I have gotten ahead of events Bowlin testified
that 18 October he signed one of the Union s authonza
41 As will be discussed later the General Counsel would exclude
truckdrivers
tion cards at the request of blender John R Scholebo
(2 217-218, 239) A question was raised during the voir
dire examination concerning whether the signature on
the card is that of Bowlin , and Bowlin s pretrial affidavit
was received in evidence for the purpose of a signature
comparison (2 224-225, R Exh 2) The signatures are
similar on the two documents
Bowlin concedes that no one from management was in
the vicinity when he signed the card and returned it to
Scholebo, that he never told anyone he had signed, and
that he never solicited anyone else to sign and that he
never attended any union meetings (2 240-241) 46 When
one employee inquired whether he had signed Bowlin
replied that it was no one s business (2 245) Neverthe
less, Bowlin testified that some of the employees knew
he had signed (2 245)
The General Counsel points to testimony by Bowlin
that when he was hired he was told by Fiantaco not to
sit around talking to the other employees in the plant,
and that Fiantaco added he definitely should not talk
union (2 215) Although this event falls well within the
statutory limitation period, there is no complaint allega
tion based on it, and the General Counsel did not seek to
amend the complaint to cover it Fiantaco denies telling
Bowlin not to talk union (3 453, 464) This bit of testimo
ny leads us to Sunday, 4 November, when Bowlin tele
phoned Fiantaco The latter agrees that Bowlin tele
phoned him at home around that date (3 463)
Complaint paragraph 5L alleges that on or about 4
November Fiantaco in a telephone conversation told an
employee that the employee had been discharged due to
the employees union activities In support of this alle
gation, Bowlin testified that when he telephoned Fian
taco on 4 November he related to him what Hicks had
said in their conversation of the previous day (2 231)
Thus Bowlin told him that Hicks had said when there
was any work (construction presumably) he would talk
to Fiantaco and Bowlin would be recalled To this Fian
taco, Bowlin testified stated that he would talk to Hicks
and Fiantaco added (2 231), I told you not to talk to the
guys in the plant
According to Fiantaco Bowlin simply asked (again)
whether Fiantaco was mad at him and why was he laid
off Fiantaco replied that he had nothing against Bowlin
and that Bowlin was laid off simply as a matter of eco
nomics to keep the costs down And that s the only
words that was discussed on the telephone (3 463)
Fiantaco denies that he told Bowlin that he had been dis
charged for his union activities (3 463) As earlier noted,
Fiantaco also denies ever telling Bowlin not to talk union
(3 453 464)
I find that in August Fiantaco did tell Bowlin not to
sit around talking with the employees inside the plant
but I also find that Bowlin embellished this with the part
about not talking union Having referred to Bowlin s pre
trial affidavit, I shall note that in making the foregoing
finding I do not rely on the fact that Bowlin s pretrial
account of the August conversation does not include the
46 During the relevant period the only union meeting was the one con
ducted by Melvin Allen at the union hall on 17 October attended by em
ployees Kinsel Scholebo and Wininger
HICKS OILS & HICKSGAS
clause about not talking umon,47 for the affidavit was
not received generally
Citing certain cases , CGC requests that I consider as
substantive evidence paragraph 6 of Bowlin s pretrial of
fidavit (Br at 30) In paragraph 6 Bowlin asserts that on
Friday evening, 2 November he telephoned Fiantaco to
tell him he was going to call Hicks, and Fiantaco told
him that he had work and would put him to work if
Hicks gave the approval I decline to consider this pre
trial statement not only because the affidavit was not re
ceived generally, but also because Bowlin did not testify
at the hearing about such a 2 November conversation
and Fiantaco was not given a fair opportunity to address
the issue At one point Respondents counsel asked Fian
taco whether he had ever told Bowlin that there was
work to do at the plant and that he would talk to Hicks
about it (3 463-464) Fiantaco denied it and answered
further that he ahd nothing to do with the plant (that is,
work inside the plant) The matter was not addressed
further and, as mentioned, Bowlin did not address a con
versation with Fiantaco on 2 November Accordingly, I
reject CGC's request that I consider as substantive evi
dente Bowlin s pretrial account of a 2 November con
versation
There are a couple of other matters that bear on credi
bility One has to do with testimony about Bowlin s
work initiative and carpenter skills and the second re
lates to a visit to the Du Quoin plant by Donald Moore,
the secretary treasurer and business agent of Laborers
Local 644
Earlier I noted that Williams testified that he told
Fiantaco he would not hire Bowlin on a permanent basis
because when he observed Bowlin he would be leaning
on a shovel talking (2 344) 1 find that Fiantaco, as Wil
liams testified, did ask Williams to consider Bowlin for
permanent work on the inside I further find contrary to
Williams testimony that he did not reply in the negative
fashion that he described Indeed, in line with Bowlin s
credited testimony that Williams apparently a few weeks
before Bowlin was terminated told Bowlin that he
thought a permanent job could be arranged for Bowlin
following the end of the construction work I find that
Williams raised the subject with Bowlin (asking as earls
er described what Bowlin was going to do after the con
struction work was over) after Fiantaco approached Wil
liams on behalf of Bowlin, Fiantaco s friend of 32 years
But aside from the foregoing logical connection of the
credited evidence, the length to which Williams and
Hicks sought at the hearing to slander Bowlin s work mi
tiative and carpenter skills convinces me, in light of their
wholly unfavorable demeanor, that Williams and Hicks
are witnesses generally unworthy of belief
On cross examination Williams concedes that he knew
nothing about the standards of Bowlin's construction
work and that he did not know what Bowlin was sup
posed to be doing on that job (2 361) Williams also con
cedes that he did not base his opinion on Bowlin s work
inside the plant on the few occasions he worked there
(2 369) Williams based his opinion on his asserted obser
4' The pretrial affidavit actually states that in August Fiantaco gave
no reason for telling Bowling not to talk to the men (R Exh 2 at 3)
103
vation that he generally saw him (outside) leaning on a
shovel handle talking (2 370)
Testifying that Bowlin was classified as a carpenter,
Hicks volunteered that he thought he did it quite well as
did Bowfin (3 420) On cross examination he flatly stated
that Bowlin is not qualified to be a carpenter (3 433) He
then admitted that he had never personally observed
Bowfin s work and that his opinion was based on Fianta
Co s giving him the low down (3433)48
Whatever may be said about Fiantaco s denial of con
versations about the union, or his denials of knowledge
of any union activity, I find that he testified truthfully
when he denied the slurs against his friend s working
skills and initiative Thus, Fiantaco described Bowlin as a
fair carpenter who, while not a polished" one, worked
hard and whose overall work he related satisfactory
(3 484-485) Moreover, Fiantaco testified that he never
complained to management about Bowfin s work quality,
quantity, or anything (3 485)
In crediting Fiantaco, I expressly discredit the testimo
ny of Williams and Hicks in which they untruthfully
characterize Bowlm s work initiative and carpenter skills
In addition to the Fiantaco ground, another reason I
reject the testimony of Hicks and Williams on this point
is that I do not believe them as witnesses generally I
accept only portions of their testimony, which are in
accord with other credited evidence I find Hicks and
Williams to be witnesses who attempted to deceive me
Their demeanor while testifying was wholly unsatisfac
tory and it recalls to mind the words St Jerome penned
nearly 1600 years ago49
The face is the mirror of the mind and eyes with
out speaking confess the secrets of the heart
The second credibility matter to be addressed at this
point relates to the visit of Donald Moore to the plant
Fiantaco, on cross examination, testified that in about
October a man came to the jobsite and, identifying him
self as the business agent for the Laborers Union, asked
Fiantaco to walk through the plant with him (3 480-481)
Testifying that although he did not know why Moore
would so request, Fiantaco nevertheless agreed and they
did so After the tour Moore then got in his station
wagon and left Fiantaco denies that they conversed
about the Laborers organizing the Du Quoin facility
that the employees were considering forming a union,
and saying that he would prefer the Laborers over the
Teamsters (3 480 481-482)
Called as a rebuttal witness for the General Counsel,
Moore testified that his visit occurred when he, wearing
his Laborers hat, stopped to speak to a cement finisher
he knew A man in a suit and hat approached them and
48 Hicks actually said he received the low down from Bowlin s su
pervisor Earlier Hicks identified that supervisor as being Fiantaco
(3 421) Williams concedes that Fiantaco not he was Bowlin s supervisor
(2 359)
49 St Jerome Letter 54 par 13 (394 A D) Fremantle The Principal
Works of St Jerome 6 The Nicene and Post Nicene Fathers 2d Series
(1979) as slightly modified in Bartlett s Familiar Quotations 128 8 (15th
ed 1980)
104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the cement finisher introduced the two (3:519-520). The
man in the suit was introduced as Pete Fiantaco (3:520).
As the construction workers resumed their tasks, Fian-
taco and Moore stepped back and began conversing.
During their conversation Fiantaco said he had worked
with the Laborers before,50 that there currently was or-
ganizing going on involving the Teamsters, and that he
would prefer the Laborers (3:520). Moore gave him his
card and wrote the name of an International vice presi-
dent who would have to be contacted since the plant
was about 2 miles outside Moore's jurisidiction. Fiantaco
said, "We got two weeks." (3:523-524) Fiantaco said he
was Respondent's public relations man, had worked
years for Hicks Oil,51 offered to and did take Moore on
a tour of the plant, and even introduced Moore in the
office (3:522).
After leaving, Moore contacted his superiors, and after
about 3 weeks he received approval to organize the
plant, but when he contacted some of the employees he
learned that the Teamsters was engaged in organizing so
he just "backed off." (3:524).
I credit Moore's version of the visit over the different
testimony of Fiantaco. Fiantaco's version of Moore drop-
ping out of the blue to ask for a tour is enough of a
credibility strain, but if a business agent did such, and
Fiantaco consented, then surely the subject of organizing
was mentioned. Why else would a union representative
stop at a jobsite or a plant? The only other plausible
reason is that given by Moore-he stopped to speak with
someone he knew. From here, I find, events developed
as described by Moore.
I do not overlook a logical wrinkle in Moore's version.
Thus, if he "backed off" 3 weeks later on ascertaining
from employees that the Teamsters were organizing,
why did he not withdraw when Fiantaco told him the
same thing on the initial visit? As we know, Teamsters
Local 347 filed the petition in Case 14-RC-9907 on 1
November. It is quite likely that Moore's second visit oc-
curred sometime in November, and that Moore, on
learning that the Teamsters' campaign already resulted in
a petition being filed, decided to back away.
Although Moore placed the date of his visit around 1
October (3:519), he testified on cross-examination that he
based this timeframe on an estimate from employees
(3:527), and there is evidence adduced during Respond-
ent's rejoinder by Flessner, regarding timecards, detract-
ing from the reliability of the employees' estimate.
Moore's second visit probably occurred before the dis-
missal letter of 1 December. Thus, the initial visit, I find
occurred before Respondent received, in early Novem-
ber, its copy of the petition, and the second visit took
place 3 weeks later, but at some point after 1 November.
This means that the second visit could have been as late
as 18 or 20 November or so, and that the initial visit
could have been as late as late October. Thus, I find that
Moore's testimony, standing alone, fails to establish that
50 Fiantaco concedes that in the past he has been a member of the La-
borers as well as the Carpenters and United Mine Workers (3:447).
51 Fiantaco , then a general contractor , erected a building in 1976 for
Hicks, and on occasion Fiantaco, who takes pride in his work, goes in
the plant to inspect the structural steel to see how it has held up since
1976 and to see how it looks after 8 years (3:447, 458, 484).
Fiantaco and Respondent knew of the Teamsters' orga-
nizing as of the date of any of the discharges.
On the other hand, the credited testimony of Moore
does further detract from Fiantaco's credibility. Aside
from Fiantaco's version simply being rejected, Moore's
credited version shows that Fiantaco, contrary to his tes-
timony that he never knew about any organizing, in fact
did know about it no later than late October. Although
Fiantaco's knowledge is imputed to Respondent, it is
clear from my other findings regarding the close control
maintained by Hicks and Flessner, that Hicks and
Flessner, and therefore Williams, possessed the same
knowledge as Fiantaco no later than late October.
Indeed, it is more likely than not that Fiantaco received
much of his knowledge from Hicks rather than knowl-
edge flowing from Fiantaco to Hicks.
b. Conclusions as to Bowlin
Did Fiantaco's 4 November statement to Bowlin, "I
told you not to talk to the guys in the plant," equate to
telling Bowlin, as alleged in complaint paragraph 5L,
that he had been fired because of his union activities? I
find the answer to be yes.
First, the reason given for Bowlin's layoff-to reduce
costs because budget exceeded-is based on the testimo-
ny of Hicks and Flessner, and neither is worthy of belief.
Moreover, in their zeal to impugn the carpenter skills of
Bowlin and to paint him in the image of a goofoff, the
credibility of Hicks and Williams assumes the function of
an algebraic negative. It is well settled that when the
reason advanced is false, it may be infered that the real
motive is a different and unlawful one where, as here, it
may reasonably be concluded that the motive sought to
be concealed by the false reason is unlawful. Shattuck
Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966).
The falsity of the reason, along with the "I told you
not to talk to the guys in the plant," plus my disbelief of
the denials by Hicks, Flessner, Williams, and Fiantaco of
knowledge of union activities, all combine to establish af-
firmatively that it had been reported to Respondent that
Bowlin was a known, or suspected, card signer. As the
statements of Fiantaco to Kelly Miller reflect Hicks' per-
sonal desires, as Hicks wanted time for the Du Quoin
plant to make some money under the Texaco contract, I
find that Hicks viewed union activities at the Du Quoin
plant as personal disloyalty to him. Hicks was explicit in
his testimony that he will not tolerate a disloyal employ-
ee.
In light of the foregoing, and all the record, I find that
Respondent violated Section 8(a)(1) of the Act by Fian-
taco's statement to Bowlin on 4 November, and that Re-
spondent, with knowledge, or suspicion, that Bowlin had
signed an authorization card for the Union, fired Bowlin
on 25 October because of that knowledge or suspicion,
thereby violating Section 8(a)(1) of the Act, as alleged.
I further find that when Fiantaco laid off the remain-
der of his construction crew about Friday, 30 November
(3:451), that Respondent would have transferred Bowlin
to work inside the plant starting about Monday, 3 De-
cember. Bowlin was earning $6 an hour, and I shall
HICKS OILS & HICKSGAS 105
leave to the compliance stage the determination of what
pay increase he would have received for promotion to a
permanent employee
4 Richard A Foster discharged 29 October 1984
a Facts
Richard A Foster was hired in July 1983 by Con
struction Foreman Fiantaco as a part time employee
(2 280, 290) He was promoted to full time in late June
1984, the same day Hicks introduced Moe Williams to
the Du Quoin employees and was given a pay increase
from $5 to $5 75 an hour (2 281, G C Exh 21) It ap
pears that around the time of his conversion to full time,
Foster began working on the maintenance crew for
Butch' Johnson and Williams (2 274) Foster was terms
nated 29 October
Appearing to be in his mid twenties, Foster has had a
dunking problem for some time He concedes that Fian
taco who knows Foster s father, told the son, at the time
Fiantaco hired him, to stay out of trouble for he was
giving Foster a chance by hiring him (2 291) For about
a year Foster appears to have avoided any significant dif
ficulty Beginning in July, however, Foster began having
attendance problems Timecards reflect that he missed
work on 19 and 30 July, 20 August, 4, 6, and 25 Septem
ber 8 October, and, finally 23-26 October In addition to
missing these days, Foster was tardy five times between
29 August and 22 October There is no showing that
other employees had similar attendance problems
Foster admits that at one point, apparently the 25 Sep
tember absences, he called in sick even though he really
was hung over Williams, who learned the truth from
family sources told Foster that he was tired of Fosters
missing all these days of not calling in, that he did not
want it to happen again, and that if it did he would fire
Foster (2 293-294 301 337)
Around this general timeframe Foster was convicted
of driving while intoxicated (2 288) He had to pay a fine
and serve time in jail However, the authorities permitted
Foster to serve his jail time on weekends, and the last
three weekends Foster was employed by Respondent he
spent in jail (2 288 289) Foster credibly testified and
Williams does not deny that he showed Williams the
court papers describing the DWI conviction the fine,
and the service of jail time on weekends Williams who
had taken the papers returned them to Foster later the
same day without comment (2 292-293) Both Foster
(2 292) and Jeffery Scronce (1 177) testified that Foster s
drinking problems DWI conviction and weekend jail
time were facts of common knowledge at the plant
On Tuesday 22 October Foster called in sick and he
did not work the rest of the week (2 284) Although
Foster did not specify in his testimony it appears that he
did not call in that Wednesday, Thursday or Friday
Foster visited a doctor during this absence and secured a
statement from the doctor stating that Foster had visited
him on that date, 26 October and that Foster was
unable to work (2 285, G C Exh 17)
When Foster reported to work on Monday, 29 Octo
ber Williams called him into the office and informed
Foster that he was terminated At that point Foster at
tempted to hand Williams the doctor s slip, but Williams
refused to take it, saying that the matter was out of his
hands and was from people higher up (2 285-286)
Williams testified that he telephoned Hicks and report
ed to him concerning Foster s problems with attendance
and concerning his weekend jail time According to Wil
Hams, Hicks said he did not want a jailbird on his payroll
(2 338) Williams did not specify when this conversation
occurred He further testified that at, apparently, a later
point, and during the final days of absence by Foster,
Hicks telephoned and instructed Williams to terminate
Foster (2 339-340) Hicks confirms that he so instructed
Williams (3 417) Both deny knowledge of any union ac
tivity by Foster (2 340-342, 3 418)
At his termination Foster told Williams that he wanted
to talk with Hicks (2 286) The evidence is skimpy on the
this point, but Foster also testified that at some point he
did talk with Hicks and that Hicks told him he drank too
much and that he did not want Foster working up high
(2 299) The working at heights is a reference to the un
disputed fact that a "few weeks before he was terminat
ed, Foster dropped a pipe wrench from a scaffold be
cause of oil on his hands (2 294) Foster credibly testified
that all employees drop things on occasion (2 294) Hicks
testified that although the insurance carrier did not
cancel the policy because of Foster s situation, Hicks
could not take any more chances on this safety factor
(3 416-417)
Although Foster signed a union card on 18 October in
a restroom at the request of John R Scholebo (2 275-
276, G C Exh 16) he admits that he never solicited
anyone to sign a union card that he never attended any
union meetings and that he never told anyone in man
agement that he had signed a card (2 297-298) There is
no direct evidence that Respondent was aware or be
lieved that Foster had signed a union card The chief
evidence even approaching a showing of animus toward
Foster is his testimony previously discussed and cred
ited, that following Kinsel s 18 October discharge, Fian
taco told Foster that he would be terminated if Respond
ent ascertained he supported a union
b Conclusions as to Foster
Fashioning a theory of unlawful discharge from sever
al circumstances, the General Counsel argues that Re
spondent really fired Foster because of his union support
Included in this argument is the fact that Foster as did
many but not all employees, received a pay increase (the
raises vaned in amounts) on 17 October retroactive to 1
October 52 The General Counsel contends that Respond
ent relies on grounds previously known or tolerated, and
that the timing of Foster s termination following so
close to his union activity and to Fiantaco s warning, add
up to a finding that but for the union campaign, Re
spondent would not have discharged Mr Foster
I previously have found Hicks and Williams to be wit
nesses unworthy of belief except when corroborated by
credited evidence Neither testified in a straightforward
52I specifically do not believe Vice President Flessner who testified
that Foster s October wage increase was not based on ment (3 500)
106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fashion regarding the shortcomings of Foster and this is
particularly true regarding the timing and content of the
decision conversation (or conversations) Some of the
grounds advanced ring exceedingly hollow Foster
dropped a wrench once, and that occurred a few
weeks before his termination before Fiantaco s warning
to him, and before the October decision to grant him a
pay increase Others also drop tools Fosters attendance
was bad, but he had been missing days since July More
over Williams was aware of the DWI conviction and
the weekend jail time for several weeks before the termi
nation In view of Hicks tight control over his company
and his weekly visits to Du Quoin I find that Williams
promptly advised Hicks of Foster s problems with the
law and took no action until after the union activity
began and Kinsel was fired
Nevertheless, Foster s own testimony reflects that Wil
hams warned him, about 25 September, that he would
fire him if he repeated his attendance problems Al
though Foster did miss another day, 8 October, without
being fired' 53 it is reasonable to assume tnat when Foster
missed 4 days in succession, and called in on the first day
only that Williams had endured all he could stand This,
I find is the reason Respondent discharged Foster The
other reasons advanced are nothing but embellishments
added as makeweights Frequently makeweight reasons
mask an illegitimate motive In this case, I find, they
really obscure the actual, and lawful, motive According
ly I shall dismiss the complaint to the extent it alleges
that Respondent violated Section 8(a)(1) and (3) of the
Act by discharging Richard A Foster
E Postdischarge Conduct by Hicks
Two incidents involving President Hicks, postdating
the discharges have a matenal bearing on the issues, and
I have considered them in making my findings As the
second incident is not alleged in the complaint, CGC
relies on it only to show animus and motivation
Blender John R Scholebo who was still employed as
of the hearing, testified that at some point in November
Hicks telephoned him at home and asked if Scholebo still
wanted a union at Du Quoin When Scholebo replied no
that he had never wanted one, Hicks expressed the opin
ion that the Du Quoin employees did not need a union
Hicks then asserted that no one was going to come in
and tell him how much to pay his employees He further
asserted that he knew Scholebo was one of those who
had signed a union card Scholebo, saying he would not
lie, admitted that he had signed Hicks stated that Scho
lebo was one of Respondent's best men but now you re
out there hanging in left field (199-1()0)54
53 It is possible that Williams warning came after the 8 October ab
sence rather than following the absence of 25 September
54 Complaint par 5M alleges that on or about 18 November 1984
Hicks by telephone (1) interrogated an employee concerning his union
activities and (2) created the impression that his union activities were
under surveillance The allegation does not include a threat of discharge
although it could be argues that Scholebo s testimony establishes one in
Hicks words that Scholebo was now hanging in left field Those
words convey the message that Scholebo has jeopardized his job by his
union activities and that his good work was insufficient to save his job
According to Hicks Scholebo called him at home
around 18 November and expressed doubt that his job
was secure Hicks assured Scholebo that he had nothing
to worry about, to continue his work, and to forget
about everyone else When Scholebo seemed relieved to
hear this Hicks added that Scholebo was earning a
pretty good wage Hicks denied saying anything about
a union or even knowing anything about union activities
even at this late date (3 426-428) 55
I credit Scholebo who testified with far greater believ
ability than did Hicks I therefore find that on or about
18 November Respondent violated Section 8(a)(1) of the
Act when President Hicks interrogated Scholebo con
cerning his union sympathies and when Hicks asked
Scholebo if he still wanted a union, thereby creating (or
tending to create) the impression of surveillance
Scholebo also testified that around late January 1985
Hicks, during one of the presidents visits to Du Quoin
called him into the office asked why Scholebo wanted a
union in the plant, and told him that no union was going
to come in and tell him what to pay his employees
(1 104-105) Scholebo responded by saying that the La
borer's representative 56 reported that Pete Fiantaco had
told him that the Company does not want the Teamsters
Union and prefers the Laborers This statement by Scho
lebo had an incendiary effect on Hicks, who exploded in
an ominous display of antiunion animus by pounding his
fist on the desk while profanely exclaiming (1 105)
I don t want no goddamned union in here
Although Hicks denies any 1985 conversation with
Scholebo in which the Union was mentioned he does
not address whether there was an incident in which he
pounded his fist on the desk while talking with Scholebo
(3 428) I credit Scholebo
No complaint allegation covers the foregoing incident
CGC relies on it only to show that Respondent s animus
is a longstanding condition that still persists and that the
incident graphically demonstrates the need for a bargain
ing order because it would be impossible to conduct a
fair representation election (1 104 Br at 20)
F The Requested Bargaining Order
1 Introduction
The General Counsel seeks a bargaining order To de
termine whether a bargaining order is an appropriate re
medial order in this case I must resolve certain issues
First, what is the appropriate unit? Second did the
Union obtain card signatures from a majority of the em
ployees in the appropriate unit? Third, even if a majority
signed cards, was the majority reduced to a number less
than half by reason of taint? Fourth, if Respondents taint
arguments fail, do the violations found fall in that cate
15 Unlike Vice President Flessner who at least concedes that his first
inkling of any union came from a statement Kelly G Miller made when
Flessner terminated Miller on 26 October (3 496) Hicks would have me
believe that his own ignorance of any union activities is absolute
55 An apparent reference to Donald Moore the witness called by the
General Counsel during the rebuttal stage
HICKS OILS & '-IICKSGAS 107
gory of serious unfair labor practices that indicates a bar
gaining order is an appropriate remedial order?
2 The appropriate unit
Although they differ on some inclusions and exclu
sions the parties agree to the same 18 employees as
being the pool of possible inclusions in the appropriate
unit as of 18 October At the hearing the parties stipulat
ed that 12 of the 18 should be included (1 201-207)
These 12 are
David Brocaille
Michael W Dalman
Richard A Foster
Edward F Goeke
Michael E Hampton
Gary W Kinsel
Ricky Nippe
Michael W Ratajczyk
Jeffery Roberts
John R Scholebo
Jeffery W Scronce
W Lee Wininger
Kinsel was not discharged until the morning of 18 Oc
tober As most of the cards were signed after Kinsel was
fired, and as I have found that Kinsel was not unlawfully
discharged, it is clear that Kinsel may not be counted in
totaling the number in the unit Accordingly, Kinsel s
card may not be counted in ascertaining majority status
The parties also agree, and the evidence supports
them, that blender Jerry Aaron, who began work on 9
October, should be included in the unit By subcontract
ing Kinsel and adding Aaron, the agreed inclusions still
number 12
The General Counsel also would include Everett L
Bowlin, Kelly G Miller and Andy J Queen Respond
ent would exclude Bowlin and Miller as temporary em
ployees and Queen as a student Previously I have dis
cussed the status of Bowlin and Miller and found that
each would have been made a permanent employee but
for his unlawful discharge I therefore shall count them
as part of the appropriate unit
At the time of the hearing Andy J Queen was a senior
in high school who was working for Respondent as part
of a vocational educational program Williams grades
Queen on his work and the school in turn gives Queen
school credits ( 1 185- 186) Queen first worked for Re
spondent during the summer of 1983 During the summer
of 1984 he again worked for Respondent on the con
struction crew In the summer of 1984 Queen received a
pay increase to $5 an hour (1 188) However, he does not
receive the fringe benefits other regular employees do
(1 188) In September 1984 Williams transferred Queen to
work inside the plant, where Queen has continued to
work
On the inside Queen works from 1 to about 7 p in
and sometimes later, for a total of about 30 to 35 hours a
week (1 181,188) The regular employees work from 8
a m to 4 30 p in and Queen is the only employee who
works the shift he has (1 188-189) From 1 p in to 4 30
p in Queen works on whatever jobs Williams assigns
him to and after 4 30 p in he performs janitorial work
(1 180) Although he understands that his job will not
continue after his graduation from high school, he hopes
to obtain a permanent job from Respondent after he
graduates (1 186-187)
Relying on cases such as Hearst Corp, 221 NLRB 324
(1975) the General Counsel argues for inclusion on the
basis that Queen works nearly as many hours as the reg
ular employees has a pay rate as high as at least one of
them (Dalman), performs unit work some of the time
cleans up the work area the balance of his time, and
shares a community of interest with the regular employ
ees
Citing Taft Broadcasting Co, 226 NLRB 540 (1976),
and similar cases, Respondent contends that Queen
should be excluded because he has no reasonable expec
tation of continuing employment and no sufficient com
munity of interest with unit employees
The issue is close because Queen did not share fringe
benefits or have any firm prospect that he would be em
ployed after graduation Nevertheless, because of the
great number of hours Queen was working during the
relevant period, that he was earning pay in the same
range as acknowledged unit employees, that he worked
alongside unit employees for several hours each day and
then cleaned up the work areas, and in the absence of
any evidence that the school exercised any substantial
degree of control over Queens employment, I shall
count Queen as being a member of the Union as of 18
October on the basis that Queen s status with Respond
ent at the relevant time was more employment related
than it was educational
Inclusion of Bowlin Miller and Queen brings the unit
count to 15 With Kinsel excluded because of his dis
charge, two employees of the original pool of 18 remain
in dispute The two are maintenance man Edward D
Butch Johnson and truckdriver William D Rice I
previously have found the evidence insufficient to estab
lish that Johnson is a statutory supervisor The General
Counsel contends that neither Johnson nor Rice shares a
sufficient community of interest with the unit employees
As to Johnson, CGC points to the fact that Johnson falls
in a special category in that he is not on the Du Quoin
payroll, but in fact is on the payroll of one of Hicks
other firms that Johnson keeps his own time and that
Hicks testified that Johnson does not report to anyone at
Du Quoin and that Johnson s orders come from Rob
erts Illinois (3 409) Although Johnson testified that he
reports to Williams (2 374) he later conceded that his
boss is Cotton Fritchley at Rocket Supply Corporation
(2 383)
It is clear that Johnson is a loaned employee of Rocket
Supply Corporation a subsidiary of Respondent and
that Hicks assigned Johnson to Du Quoin on a tempo
rary (although indefinite) basis to provide the technical
expertise in the area of piping and maintenance Even
though Johnson functions as a leadman at Du Quoin, co
operates with the local management there and works
closely with unit employees, his essential and permanent
ties are to the subsidiary whose payroll he is on and
from whom he receives his orders If Johnson is a
member of any unit it would be a unit at Rocket Supply
I therefore shall not count him as part of the Du Quoin
unit
In arguing that Rice should be excluded from the unit,
CGC points to the admission of Williams who super
vises Rice that Rice spends at least 95 percent of his
time performing his over the road truckdnving duties
108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with the other 5 percent working at whatever job he is
assigned inside the plant (2 347) Construction Crew
Foreman Fiantaco testified that the only work he ever
observes Rice performing other than driving is washing
or maintaining his vehicle (3 482) Fiantaco adds, howev
er that he does not know whether Rice ever works
inside the plant (3 483) Vice President Flessner testified
that Rice works inside the plant on production work up
to 50 percent of his time (3 512-515) 57 Rice punches a
timeclock, is paid hourly and works generally the same
hours as the other employees
Truckdriver Rice spends an average of about 5 per
cent, or a little more, of his time performing production
work, he is paid hourly, punches a timeclock as other
unit employees, shares the same benefits, and is super
vised by Williams who also is over most of the produc
tion workers I find that he shares a sufficient community
of interest with the other employees to be included in
the unit
Accordingly, I find the appropriate unit to be de
scribed as
All production and maintenance employees em
ployed by Hicks Oils & Hicksgas Inc, at its Du
Quoin, Illinois facility, including truckdnvers but
EXCLUDING office clerical employees profes
sional employees, guards and supervisors as defined
in the Act
The addition of Rice brings the final tally for the unit
inclusions to 16, with 2 exclusions (Kinsel and Johnson)
Thus, I find that as of the signing of the last authonza
tion card on 18 October, the appropriate unit included
Terry Aaron
Everett L Bowltn*
David Brocaille
Michael W Dalman*
Richard A Foster*
Edward F Goeke
Michael E Hampton*
Kelly G Miller*
Ricky Nippe
Andy J Queen*
Michael W Ratajczyk*
William D Rice
Jeffrey Roberts
John R. Scholebo*
Jeffrey W Scronce*
W Lee Wmmger*
The 10 whose names are marked with an asterisk, with
Kinsel making 11 are the ones who signed union author
ization cards during the 2 day period of 17-18 October
Respondent argues that the cards of Bowlin and Scronce
should not be counted because someone else dated the
cards 18 October However Scronce testified in a posi
tive fashion that he knew the date of his signing was 18
October (1 170) I find that Scronce signed his card on
18 October
Bowlin testified that someone else, he presumes it was
Scholebo dated his card, which he signed and (the same
day) returned to Scholebo (2 221-223 239) During his
own testimony, Scolebo failed to include Bowlin s name
in the list of those he gave cards on 18 October (1 93-
94) However W Lee Wininger testified that he re
ceived the signed cards from Scholebo and Michael Ra
tajczyk on 18 October to pass on to Union Representa
67 The 50-percent figure relates to a single week and I find that Wil
hams ratio of 95 to 5 is the more credible and the more accurate figure
tive Allen (2 262, 265) Indeed, on that occasion Win
inger on his own initiative corrected the date on Andy s
Queen s card from 26 October to 18 October (2 262 265-
266 G C Exh 12)
Although there is no express statement by any witness
that Bowlin s card was correctly dated as 18 October, it
is established that Scholebo distributed the cards on 18
October and that Bowlin received his card and gave it
back the same day to Scholebo Where as here the sur
rounding facts establish the timely signing (the actual
date, here) of an authorization card, the fact that some
one else dates the card does not render it invalid Sans
Souci Restaurant, 235 NLRB 604, 608 fn 8 (1978) Ac
cordingly, I find these and all the cards, valid
As the 10 signers constitute a majority of the 16
member unit, the next question raised by the evidence is
whether a sufficient number of the cards were tainted so
as to destroy the majority
3 The issue of tainted cards
a Facts
As mentioned earlier, Gary W Kinsel John R Scho
lebo, and W Lee Wininger signed cards at the Team
sters hall the evening of 17 October Union Representa
tive Melvin Allen testified he told the three that the
cards could be used to petition the Board for an election
or to request recogniton on the basis of a card check if a
majority of the employees signed (1 121) Allen further
testified the he never told them the sole purpose of the
cards was to have an election (1 122)
In answer to a question during voir dire examination
whether Allen told them that the only purpose of the
cards was to petition for an election Kinsel answered
yes (1 41) 58 Kinsel also testified that Allen said the
cards were to petition for an election that the cards
would afford a measure of protection, and that Allen
never told them to disregard the language on the face of
the cards (1 41 43) Kinsel testified that he read the card
before he signed it (1 35)
Scholebo testified that Allen told them if 50 percent of
the employees signed then it would come to an election
and he would talk to company officials and either turn
over the cards or tell them that a majority had voted for
the Union (1 89-90) He further testified that the card
could help provide security from discrimination on the
job (1 89) In answer to the question whether Allen ever
said that the only purpose of the cards was to conduct
an election Scholebo responded, Yes I believe he did
(1 90) When reasked that question Scholebo saying he
was getting confused, asserted that Allen said the cards
were for him to represent the employees as a Local
Union
58 I erroneously suggested that counsel cover both authentication and
validity of the cards during voir dire ( 1 38) One practical problem with
this is that a respondent cannot obtain any pretrial affidavit until the
cross-examintion stage (1 90) Thus a certain duplication of effort can de
velop The proper and better practice described in Montgomery Ward &
Co 253 NLRB 196 196-197 ( 1980) is to limit the voir dire examination
to authentication and to reserve validity questions for cross-examination
HICKS OILS & HICKSGAS 109
On voir dire examination by Respondent, counsel in
quired whether Scholebo had just testified that Allen
said the purpose of the card was only for an election
Scholebo answered yes (1 91) As Scholebo had indeed
so testified, he accurately described his own testimony
The issue however is what Allen said Following the
voir dire examination, Scholebo denied that Allen said
that the purpose of the card was only to have an election
(1 91) Scholebo testified that he read the card before he
signed it (1 92)
Scholebo's card, as the others, has lines for the date,
the name, address, and telephone number of the employ
ee (G C Exh 13) The name of Teamsters 347 in West
Frankfort Illinois, is printed on the card, and at the top
is printed AUTHORIZATION FOR REPRESENTA
TION AND UNION SHOP 'At the bottom of the card
are lines for the name of the employer and its address,
the job title of the employee, and a signature line for the
employee The text of the cards provides
I hereby request and accept membership in the
above named union, and of my own free will au
thonze it their agents or representatives to act for
me as a collective bargaining agency in all matters
pertaining to pay rates, wages, hours of employ
ment and other conditions of employment I agree
to be bound by and comply with the Constitution,
rules and regulations of the Teamsters Union,
Local 347, Affiliated with I B T C W & H of
America
Wininger testified that he read his card when he
signed it (2 256) He further testified Allen said the main
purpose of the card was to have someone represent the
employees but that a second purpose was possibly to get
a vote (2 257) On voir dire examination Wininger an
swered yes to the question whether Allen said the pur
pose of getting employees to sign the cards he gave the
three for distribution was to get a vote (2 258) Follow
ing Respondent's voir dire examination, Wininger testi
fled that the three had explained to Allen that Respond
ent was about to fire Kinsel and that they wanted some
one to represent them (2 259) 59 Citing Serv U Stores60
and Cumberland Shoe Corp ,61 Respondent contends that
the cards of all three, Kmsel, Scholebo and Wininger
are invalid because the employees were told that the pur
pose of the cards was to get an election
Countering Respondents contention, CGC relies on
NLRB v Gissel Packing Co, 395 U S 575 (1969), and
Keystone Pretzel Bakery 242 NLRB 492 (1979) enfd 696
F 2d 257 (1982) in which the Board quotes from Gissel
Thus, in Keystone Pretzel, the Board, 242 NLRB at 493,
wrote as follows
In NLRB v Gissel Packing Co Inc 393 U S 575
(1969), the Supreme Court approved Board law on
determining the validity or invalidity of authoriza
59 Recall Kinsel s testimony that the morning of 17 October Williams
asked him to resign and stated that he would have to fire Kinsel if he
failed to resign (1 30-31)
80 234 NLRB 1143 1145 (1970)
81 144 NLRB 1268 (1963)
tion cards, as set forth in Cumberland Shoe Corpora
tion, 144 NLRB 1268 (1963), enfd 351 F 2d 917
(6th Cir 1975) and reaffirmed in Levi Strauss & Co,
172 NLRB 732 (1968) The Court described Board
law in the following terms (395 U S at 584)
Under the Cumberland Shoe doctrine, if the card
itself is unambiguous (i e, states on its face that
the signer authorizes the Union to represent the
employee for collective bargaining purposes and
not to seek an election), it will be counted unless
it is proved that the employee was told that the
card was to be used solely for the purpose of ob
taining an election
With respect to employees who sign cards upon al
leged misrepresentation as to their purpose, the
Court said, [E]mployees should be bound by the
clear language of what they sign unless that lang
guage is deliberately and clearly cancelled by a
union adherent with words calculated to direct the
signer to disregard and forget the language above
his signature' (395 US at 606) The Court cau
tioned the Board not to apply the Cumberland Shoe
rule mechanically, and quoted with approval the
Board s language in Levi Strauss, supra, that it is
not the use or nonuse of certain key or magic
words that is controlling, but whether or not the to
tality of circumstances surrounding the card solici
tation is such as to add up to an assurance to the
card signer that his card will be used for no purpose
other than to help get an election " (395 U S at fn
27)
There is more evidence to consider on this point
After Kinsel and the others left the Teamsters hall the
evening of 17 October they stopped at a cafe where they
met fellow employee Michael E Hampton Kinsel credi
bly testified that he informed Hampton about the meet
ing with Allen, gave Hampton a card and asked him to
read it and sign it (1 37) As Kinsel watched, Hampton
read the card, signed it, and returned it to Kinsel (1 37-
38)
On voir dire examination Kinsel testified he also told
Hampton that the card was for protection for authoriza
tion for representation and to petition for an election to
get a union (1 39-40) Kinsel thereafter testified that he
did not tell Hampton to disregard the language on the
face of the card (143) Hampton did not testify Re
spondent s objected to Hampton s card on the ground it
was tainted by statements to the effect that the card was
for the sole purpose of obtaining an election (1 41-42)
The following morning Kinsel was fired Before he
left the plant, Kinsel transferred the batch of unsigned
authorization cards to Scholebo (1 57, 93) It was Scho
lebo who, during the course of 18 October persuaded
seven other employees to sign cards
Michael Ratajczyk testified that Scholebo told him the
card was to get a union that there would be a vote on it,
but not to sign if he did not want a union (2 252-253)
Scholebo testified that Ratajczyk looked at the card
before filling it out and signing it that he told Ratajczyk
not to sign if he was not going to stick with those want
110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing a union , that he never told Ratajczyk to disregard
the language on the face of the card (1 95, 97) On voir
dire examination by Respondent, Scholebo testified (1 96)
Q Mr Scholebo, isn t it true that you told Mr
Ratajczyk that the purpose of the card was to get a
vote9
A Yes, I did
Q And you told him you wanted to see if a ma
jority could get the-would sign so you could get a
vote, isn t that correct9
A That's right
Q And you didn't tell him it was for any other
purpose, did you?
A No I don t believe I did
Q No, you told him it was only to get a vote,
isn t that correct
A Right
Everett L Bowlin testified that at Scholebo s request,
he signed his card in the plant on 18 October, although
he did not enter the date on the card and assumes that
Scholebo dated it as 18 October (2 217-218, 222-224,
238-239) One question about the card is whether the sig
nature is actually Bowlin s and Bowlin s pretrial affidavit
(R Exh 2) was introduced for the purpose of comparing
signatures (2 225) I have compared the signatures Al
though there are some differences, there are significant
similarities I find that Bowfin did sign the card bearing
his name (G C Exh 13)
Respondent also contends that Bowfin s card is tainted
because of what Scholebo told Bowlin Scholebo did not
address the point but Bowlin testified tht Scholebo told
him the card was to organize a union (2 218) He then
was asked (2 218)
Q Did he ever tell you it was only to get an
election
A No, he didn t
After denying that Scholebo threatened him with loss of
his job if he failed to sign , Bowlin testified (2 218-219)
Q Did he ever tell you that it was only for pur
pose of getting an election
A Yes That was the way I
Q Did he-for only-for that purpose
A Yes
Q For getting an election
A For to get a union in the plant
This was followed by voir dire examination during
which Bowlm testified (2 219-220)
Q Mr Bowlin, did Mr Scholebo mention an
election at all to you?
A No he didn t He said he was going to try-
that they was going to try to organize a union And
he asked me if I would sign the card and I said yes
Q You initially testified though under Mr Locke
[CGC] that Mr Scholebo said the purpose of the
card was only for an election Isn t that correct
A Yes I did
Q Now you re saying he didn t mentioned an
election at all?
A He asked me if I would sign a union card to
organize a union in the plant
It is clear that when the witnesses testified in their
own words, the story of what Scholebo told them is
rather different from the version posed by counsel in a
question calling for a yes or no answer The confusion in
the minds of some of the witnesses no doubt derives
from the explanation and instructions Union Respresenta
tive Allen gave Kinsel, Scholebo, and Wininger on 17
October Although I credit Allen s testimony that he ex
plained he would make a recognition demand based on a
card majority, and on rejection the cards would be used
to petition for an election, it is clear that he failed to
stress the differences in these two procedures to the
three on 17 October, and it is plain that they failed to
grasp the distinction As a result Scholebo mentioned
elements of both procedures to some of the employees
In this connection, Kelly G Miller testified that Scho
lebo told him the card would provide job protection and
that if enough employees signed they could get a vote,
but not to sign if he was not going all the way with the
Union (1 133-134) Respondent contends that the card is
invalid because Scholebo advised Miller the only pur
pose of the card was to petition for an election
Andy J Queen testified that he read his card before
signing it and returning it to Scholebo (1 183) Queen tes
titled on voir dire as follows (1 183-184)
Q Isn t it true Mr Scholebo told you that the
card was only to get a vote to see if the majority of
the people would want a union
A That and that if I was to be fired or get fired
for any reason that it would be a first step in saving
my job
Q Okay, but he told you this was getting a
union-geting an election
A For getting a vote
Q For getting a vote
A Yes
Respondent objected that this card was invalid because
Queen in addition to being a student, was told that the
purpose of the card was to get an election (1 184)
Richard A Foster testified that he read his card before
signing it and returning it to Scholebo (2 277-279)
Before Scholebo gave him the card Kinsel earlier that
week had told Foster that if he was for a union to sign a
card, and that Scholebo told him the same when he gave
him the card (2 276-278) On voir dire Foster testified
(2 278)
Q What did Mr Scholebo tell you when he gave
you the card?
A Just to sign it you know if I was for the
union to sign the card
Q Did he tell you it was for an election?
A I believe
HICKS OILS & HICKSGAS 111
Respondent objected to the card on the basis that Scho
lebo testified he told employees the purpose of the card
was for an election (2 280)
Jeffery W Scronce testified that he did not read the
card Scholebo gave him before he signed it, and that al
though someone else dated the card, he knows the date
he signed was 18 October (1 167-170) Although Scronce
was unable to recall what Scholebo told him he testified,
in answer to a leading question, that Scholebo told him it
was a union card (1 168, 170, 171) When asked on voir
dire whether Scholebo told him the purpose of the card
was to get an election, he replied, No, he didn't"
(1171) Respondent objects to the card on several
grounds, including the admitted fact that Scronce did not
read the card before signing it
The 11th and final card is that of Michael W Dalman
Hired at the beginning of October, Dalman was a new
employee at Du Quoin (1 159) After identifying a card
as the one he had dated, signed, and returned to Scho
lebo (1 160), Dalman testified that on giving him the
card, Scholebo told him that everyone had signed, that if
he did not sign he perhaps could lose his job, that the
purpose of the card was to get an election, and perhaps
the employees would get more money (1 161, 162, 164)
Dalman denies that Scholebo said the only purpose of
the card was to get an election (1 162) Scholebo did not
explain , Dalman testified, what he meant by the job loss
remark or who would cause it or how it would occur
(1 163)
Recalled to the stand Scholebo testified that on giving
the card to Dalman he reminded Dalman of Kinsel's dis
charge that morning and that he told Dalman the card
would protect his job and not to sign the card if he was
going to stick with them (1 198-199) Scholebo denied
making reference to anyone being fired or that Dalman
would lose his job through any action by Scholebo or
the Union (1 199-200) Although denying he told
Dalman that everyone had signed, he admitted that he
said most everyone had signed (1 200-201)
Respecting the disputed aspects of Dalman s card, I
credit Scholebo Thus I find that Scholebo simply re
minded Dalman of Kinsel s discharge and stated that the
card would protect his job Dalman I find at some point
began to interpret Scholebo s protection comment as a
threat of job loss I further find that Dalman either did
not hear or subsequently forgot the qualifying most
which Scholebo used in truthfully telling Dalman that
most employees already had signed I further find that
Scholebo also told Dalman that the card was to get an
election
b Conclusions on validity of the cards
I find the four cards signed on 17 October (those
Kinsel, Scholebo, Wininger, and Hampton) to be valid
Of the seven cards signed on 18 October I initially find
valid those of Bowlin and Scronce It is clear, and I find,
that Scholebo told Bowlin the employees were trying to
organize a union, and he asked if Bowlin would sign to
organize a union in the plant Bowlin signed Scronce did
not recall what Scholebo said other than that Scholebo
did not tell him the purpose of the card was to get an
election Although Scronce did not read his card, his
card is valid because he signed it
As to the remaining five cards (Dalman , Foster,
Miller Queen and Ratajczyk), a question concerning va
lidity exists because with each of them Scholebo said
there would be a vote (Ratajczyk, Miller, Queen) or that
the card was to get an election (Foster, Dalman)
Foster included the aspect of an election only by a
hesitant answer to a leading question from Respondent,
and although it was not improper to state the answer ex
pected on cross examination, I must consider that in the
factfinding process In that process, I place more reliance
on Foster s testimony, in his own words, that Scholebo
told him the card was for a union and asked him to sign
Even if Scholebo also told him the card was to get an
election, the addition of the second procedural option
did not cancel the card I find Foster s card to be valid
The difference between Foster's card and the other
four is that Foster was presented with the dual proce
dure (assuming Scholebo did mention an election) As to
the other four, Scholebo linked getting a union with the
process of having a vote (Ratajczyk) or linked job pro
tection with having an election (Miller, Queen, Dalman)
Of these four, the words expressed by Scholebo to Ra
tajczyk at least spoke of getting a union (although a vote
was mentioned) With Miller, Queen, and Dalman, refer
ence was made to the second procedural option (an elec
tion) but not to the first (voluntary recognition by a
card check based on a card majority or, in the shorthand
version getting a union based on the card) Reference to
job protection is ambiguous, for that can mean after an
election as well as, by implication, voluntary recognition
based on a card majority Thus, I conclude that as to
these three, Miller, Queen, and Dalman the only proce
dural option clearly mentioned was an election
As the court recognized in NLRB v Keystone Pretzel
Bakery, 696 F 2d 257 (1982), authorization cards always
have a dual purpose, for if an employer refuses to recog
nize based on a card majority, the cards may be used to
support a petition for a representation election The
court in Keystone Pretzel went on to hold that language
(such as that in this case) on the face on an authorization
card is not canceled by a solicitor telling the signer that
the card will be used to get an election
Thus although the issue may be close as to the cards
of Miller Queen and Dalman I find their cards as well
as the others, to be valid As of the close of business on
18 October, I find that the Union held valid authoriza
tion cards signed by 10 (62 5 percent) of the 16 employ
ees in the appropriate unit
4 Seriousness of the violations precludes a free
election
We now must consider whether Respondents unfair
labor practices justify the imposition of a bargaining
order because they are so outrageous and pervasive'
as to preclude the holding of a free election 62 or be
82 Commonly referred to as category 1 situations NLRB Y Gissel
Packing Co 395 U S 575 613 (1969)
112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cause they although less pervasive than the first catego
ry nonetheless are so serious that they still have a tend
ency to undermine majority strength and impede the
election process 63
Respondent contends that even if the findings have
reached this stage that a bargaining order is not justified
(Br at 50) By contrast, CGC contends that a bargaining
order is justified and that it should be made retroactive
to 18 October (Br at 47-48)
Regardless of whether the violations here may be clas
sified as falling in category 1, surely come under catego
ry 2 Accordingly, I shall order Respondent to bargain
with the Union as of 18 October 1984
In classifying Respondents violations as being so sera
ous as to impede the election process, and in finding that
the possibility of erasing the effects of Respondent s
unfair labor practices and of ensuring a fair election by
the use of traditional remedies is slight, I note the follow
ing First , and most significant , it is Respondents presi
dent C W Hicks, who set the example he expected of
everyone on his Du Quoin payroll to follow-managers
supervisors, and unit employees He did this in late June
when he graphically explained to them that anyone talk
ing union would be fired'
As the owner of Respondent (and its subsidiaries),
Hicks has a personal stake in keeping a union out of Du
Quoin This is so because Hicks had made a big financial
investment in securing the Texaco contract, and Hicks
needed some time, possibly 2 years, of income from the
Texaco contract in order that his investment could pay
the dividends he desires Thus it is immaterial that Hicks
has contracts with the Teamsters at two of his other lo
cations The issue is his need and desires for Du Quoin
Although the record suggests that Hicks prefers the La
borers over the Teamsters, the evidence shows that
Hicks does not want any union at Du Quoin and in late
January 1985 Hicks forcefully made tht point by beating
his fist on a desk while proclaiming to blender Scholebo
that he did not want any union telling him what wage
rates he had to pay
Whether Hicks harbors a personal deep and lasting
animus against unions generally may be debatable But
we need not resolve that issue It is sufficient for this
case to know that Hicks in his view has a very good
reason for opposing the entry of any union at Du Quoin
It may be that after he reaps a profit from the Texaco
contract for a couple of years that Hicks will relent and
tolerate his employees exercise of their statutory right to
bring in a union to represent them at Du Quoin Unfortu
nately such future compliance with the law comes a bit
late In the meantime the employees and the statute have
suffered
As Hicks made clear in his testimony he does not tol
erate disloyalty I find that, at least as to Du Quoin,
Hicks equates union activity by employees as an act of
disloyalty It is reasonable to find and I do, that Re
spondent s managers and supervisors taking their cue
from the source of their own livelihood acted accord
ingly
63 The Gissel opinion s category 2 cases
Second, in addition to the overriding aspect that Hicks
personally set the tone, the violations themselves are sera
ous (including some of hallmark character) and they are
extensive (in a unit of only 16 employees the violations
directly touched all employees working in June and a
minimum of four employees or 25 percent of the unit in
October-November) Moreover, given the animus Hicks
displayed in late January 1985 when he beat his fist on a
desk before blender Scholebo it is clear that the tradi
tional remedies of a Board order and notice requirement
are inadequate to dissipate the effects of the violations
committed and unlikely to restrain future violations
As to the nature of the violations, I note they include
(1) threats of discharge by Hicks himself in June and
about 18 October by Pete Fiantaco, Hicks longtime as
sociate, (2) the 18-19 October creation of the impression
of surveillance by Hicks and Fiantaco and again about 18
November by Hicks (3) unlawful interrogation of em
ployees by Fiantaco on 20 October and by Hicks about
18 November, and (4) the 26 October discharge of two
employees, Everett L Bowlin and Kelly G Miller, be
cause of their union activities The discharges of Bowlin
and Miller are all the more serious since it is clear that
these decisions emanated from owner Hicks personally
Respondent poured salt in Bowlin s wound on 4 Novem
ber when Fiantaco, in effect informed Bowlin that he
had been fired because of is union sympathies
The cumulative effect of all these violations on a small
unit of 16 employees would be devastating enough if
they had resulted from the actions of supervisors who,
misinterpreting managerial instructions to oppose the
union effect by lawful means, had overstepped lawful
bounds That is not what we have Here we have the
owner who has personally engaged in several of the vio
lations and who is personally responsible for all of them
Moreover the employees see at every weekly visit by
Hicks that the owner spry despite his 79 years keeps a
watchful eye on everything Indeed pay raises of any
amount must have Hicks approval and his initials are
found on virtually every exhibit in the record that per
tains to personnel action
In light of the foregoing and on the entire record I
shall order Respondent to bargain with the Union retro
active to 18 October 1984
CONCLUSIONS OF LAW
1 Respondent Hicks Oil & Hicksgas, Inc, is an em
ployer engaged in commerce within the meaning of Sec
tion 2(2) (6) and (7) of the Act
2 Teamsters Local 347 is a labor organization within
the meaning of Section 2(5) of the Act
3 Respondent violated Section 8(a)(1) of the Act by
threatening employees with discharge if they engaged in
union activities by creating the impression among em
ployees that Respondent was surveilling their union ac
tivities by interrogating employees concerning their
union activities and sympathies, by impliedly promising
an employee a promotion with higher pay if he refrained
from supporting a union any by informing an employee
that Respondent had fired him because of his union ac
tivities
HICKS OILS & HICKSGAS
4 Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Everett L Bowlin on 25 October
1984 and Kelly G Miller on 26 October 1984 because
they had engaged in union activities
5 These are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act
6 The following unit of Respondents employees is ap
propriate for the purposes of collective bargaining
All production and maintenance employees em
ployed by Hicks Oils & Hicksgas , Inc, at its Du
Quoin Illinois facility , including truckdrivers, but
EXCLUDING office clerical employees , profes
sional employees , guards, and supervisors as defined
in the Act
7 As of 18 October 1984, the Union represented a ma
jority of the employees in the above unit
8 The unfair labor practices are so serious and perva
sive that they disrupt an impede the election process,
rendering the value of traditional remedies as either non
existent or only slight, and therefore an order to bargain
is warranted and appropriate
THE REMEDY
Having found that Respondent has engaged in these
unfair labor practices I shall order it to cease and desist
and to take certain affirmative action designed to effectu
ate the policies of the Act
Respondent must offer Everett L Bowlin and Kelly
G Miller immediate reinstatement to the positions they
would have held had they not been unlawfully dis
charged or, if those positions no longer exist, to substan
tially equivalent positions, without prejudice to their se
nionty and any other rights and privileges previously en
joyed Respondent must make them whole with interest
for any loss of earnings they may have suffered as a
result of discriminatorily discharging them in October
1984 Backpay shall be computed in the manner estab
lished in F W Woolworth Co , 90 NLRB 289 (1950)
with interest calculated as prescribed in Florida Steel
Corp, 231 NLRB 651 (1977) See generally Isis Plumbing
Co, 138 NLRB 716 (1962)
Moreover Respondent must remove from its files any
reference to its unlawful discharges of Everett L Bowlin
and Kelly G Miller, and it shall notify each in writing
that this has been done and that evidence of the dis
charges will not be used as a basis for future personnel
action against them Sterling Sugars 261 NLRB 472
(1982)
As a free election cannot be assured because of the
violations found, and in light of President Hicks continu
ing antiunion animus I shall order Respondent to recog
nize and bargain with Teamsters Local 347, retroactive
to 18 October 1984, as the exclusive bargaining repre
sentative of the employees in the unit found appropriate
Finally in view of the overpowering influence on
events by C W Hicks Respondents persident, and his
personal commission of hallmark violations I shall order
that he personally sign the notice to employees
113
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed64
ORDER
The Respondent, Hicks Oils & Hicksgas Inc, Du
Quoin, Illinois, its officers, agents, successors, and as
signs, shall
1 Cease and desist from
(a) Discharging or otherwise discriminating against
employees for supporting Teamsters Local Union No
347 affiliated with International Brotherhood of Team
sters, Chauffeurs, Warehousemen and Helpers of Amer
ica AFL-CIO or any other labor organization
(b) Expressly or impliedly threatening employees with
discharge if they engage in union activities, creating the
impression among employees that Respondent is surveill
ing them in their union activities, interrogating employ
ees concerning their union activities and sympathies, im
pliedly promising employees promotions with higher pay
if they refrain from supporting a union, and informing
employees that Respondent had fired them because of
their union activities
(c) In any like or related manner interfering with, re
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Everett L Bowlin and Kelly G Miller im
mediate and full reinstatement to their former jobs or, if
those jobs no longer exist to substantially equivalent po
sitions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them in the
manner set forth in the remedy section of the decision
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way
(c) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards,
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) On request, bargain with the Union as the exclu
sive representative of the employees in the following ap
propriate unit concerning terms and conditions of em
ployment and if an understanding is reached embody
the understanding in a signed agreement
All production and maintenance employees em
ployed by Hicks Oils & Hicksgas, Inc, at its Du
Quoin Illinois facility, including truckdrivers but
EXCLUDING office clerical employees profes
84 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sional employees guards and supervisors as defined
in the Act
(e) Post at its Du Quoin, Illinois facility copies of the
attached notice marked Appendix 65 Copies of the
notice, on forms provided by the Regional Director for
Region 14, after being signed by the Respondents au
65 If 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 Nation
al 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
thorized representative, shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places ncluding all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS FURTHER RECOMMENDED that the complaint is
dismissed insofar as it alleges violations of the Act not
specifically found