Howell Refining Co.

National Labor Relations Board - Board Decisions

Feb 20, 1967

163 N.L.R.B. 18 (N.L.R.B. 1967)

18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Concurrently with the filing of the
representation petition with the Oregon Labor-
Management Relations Board, the Employer filed
suit in the Circuit Court of the State of Oregon for an
injunction to enjoin the Union from picketing or
coercing the Employer to compel him to sign an
agreement with the Union. The court found that it
was without jurisdiction to entertain the suit since
the Employer had not proved that the National
Labor Relations Board did not have jurisdiction.
Thereafter, the Employer signed an agreement with
the Union and picketing ceased.
3. The Employer is engaged as a general
contractor in the building and construction industry
in the area of Lane County, Oregon. His primary
activity has been the constructing and remodeling of
residential housing and the building of an apartment
house to be retained and operated by himself.
4. In 1965 the Employer's gross income from his
construction business was $142,656. During the first
8 months of 1966 his gross income, including the fair
market cost of the apartment he built, was $218,500.
During 1965 the Employer spent $52,207.19 on
materials, none of which he purchased directly from
out of State. Likewise, in the first 8 months of 1966,
the Employer spent $52,292.82 on materials, none of
which he received directly from out of State. In each
of these years approximately one-half of the
Employer's purchases of supplies was for concrete,
which he purchased from suppliers who received the
materials from out of State. The Employer also paid
$83,905.25 in 1965 and $59,439.93 in the first 8
months of 1966 to his subcontractors. It was
estimated that about 60 percent of the amount
received by each of the subcontractors was for
materials obtained from suppliers who received the
materials from outside the State of Oregon.
5. The State Board has made no findings as to the
aforesaid commerce data.
6. There is no representation or unfair labor
practice proceeding pending before us that involves
the parties hereto.
7. Although served with a copy of the Petition for
Advisory Opinion herein, no response as provided by
the Board Rules and Regulations has been filed by
the Employer or the Union.
On the basis of the above, the Board is of the
opinion that:
1. The Employer constitutes a ionretail
enterprise engaged in the building and construction
industry as a general contractor in Lane County,
Oregon.
2. The current standard for the assertion of
jurisdiction over nonretail enterprises within the
Board's statutory jurisdiction requires an annual
minimum of $50,000 out-of-State inflow or outflow,
direct or indirect. For the purpose of applying this
standard "indirect inflow refers to the purchase of
goods or services which originated outside the
Employer's State but which he purchased from a
seller within the State who received such goods or
services outside the State." Siemons Mailing
Service, 122 NLRB 81, 85.
3. The Employer's own local purchases of goods,
supplies, commodities, and services originating
outside the State of Oregon do not exceed $50,000.
However, the Board, in determining the inflow to a
general contractor, has combined his inflow with
that of his subcontractors on his projects, since the
subcontractors act for him and are his vehicles in the
performance of his obligations. Operative Plasterers'
and Cement Masons' International Association
Local No. 2 (Arnold M. Hansen), 149 NLRB 1264,
1274-75.1
4. In this case, it appears that the Employer and
his subcontractors purchased goods and materials
for use on his projects from suppliers who received
such goods and materials directly from outside the
State of Oregon; and that such goods and materials
were valued at more than $50,000 in each of the
years 1965 and 1966. By so combining this indirect
inflow of both the Employer and his subcontractors,
it is clear that the Employer's operations meet the
dollar-volume test of the Board's standards for
asserting jurisdiction over nonretail enterprises.
Accordingly, the parties are advised under
Section 102.103 of the Board Rules and Regulations,
Series 8, as amended, that, on the petition submitted
herein, the Board would assert jurisdiction over the
Employer's operations with respect to disputes
cognizable under Sections 8, 9, and 10 of the
National Labor Relations Act.
I Cf.Better Electric Co , Inc , 129 NLRB 1012
Howell Refining Company and Oil , Chemical
and Atomic Workers International Union,
AFL-CIO. Case 23-CA-2340.
February 20,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On November 9, 19' 6, Trial Examiner John F.
Funke issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint, and recommended that such allegations
be dismissed, as set forth in the attached Decision.
163 NLRB No. 3
HOWELL REFINING CO.
Thereafter, the General Counsel filed exceptions to
the Decision and a supporting brief, and the
Respondent filed exceptions and a brief in support
thereof, and a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the General Counsel's and the
Respondent's exceptions and briefs, and the entire
record in this case, and hereby adopts the Trial
Examiner's findings, conclusions,' and
recommendations, only to the extent consistent
herewith.
The Trial Examiner found, and we agree, that the
General Counsel failed to establish by a
preponderance of the evidence that the discharges
of employees Stephenson and Smithey were
unlawfully motivated. We also agree with the Trial
Examiner's dismissal of the two Section 8(a)(1)
allegations involving Supervisor Mitchell for the
reasons fully set forth in the Trial Examiner's
Decision.
The Trial Examiner also found, however, that
Supervisor Taylor had engaged in conduct violative
of Section 8(a)(1) of the Act by his individual
conversations with employees Bartosh and Polasek.2
Taylor told them that they could not retain any
benefits if they voted in a union , and that any
present benefits would have to be negotiated in a
contract. Although the Respondent overstepped the
bounds of permissive lawful action by these isolated
remarks, we do not believe that the conduct is
sufficiently serious, when viewed in total context, to
justify the issuance of a remedial order. Accordingly,
contrary to the Trial Examiner, we shall dismiss the
complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
' These findings and conclusions are based, in part, upon
credibility determinations of the Trial Examiner to which the
General Counsel and Respondent have excepted After a careful
review of the record, we conclude that the Trial Examiner's
credibility findings are not contrary to the clear preponderance of
all relevant evidence Accordingly, we find no basis for disturbing
those findings Standard Dry Wall Products, 91 NLRB 544, enfd
188F2d362(CA 3)
2 We hereby correct the Trial Examiner's inadvertent
reference, at one point in his Decision, to April 29, 1965, rather
than March 29, 1965, as the date of the conversation between
Taylor and Polasek Also, the citation in fn 21 of his Decision
should read, Brans Garage, Inc , 148 NLRB 363
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
19
JOHN F. FUNKE, Trial Examiner: Upon charges filed
March 28 and March 31, 1966, by Oil, Chemical and
Atomic Workers International Union, AFL-CIO, herein
called the Union or the Oil Workers, against Howell
Refining Company, herein called Howell or the
Respondent, the General Counsel issued a complaint and
amendment to the complaint alleging Respondent violated
Section 8(a)(1) and (3) of the Act. Respondent's answer to
the complaint and amendment to the complaint denied the
commission of any unfair abor practices.
This proceeding, with all parties represented, was heard
at San Antonio, Texas, on August 9 and 10, 1966. At the
conclusion of the hearing the parties were given leave to
file briefs and briefs were received from the General
Counsel and Respondent on September 26.
Upon the entire record in this case and upon my
observation of the demeanor of the witnesses while
testifying, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is a Texas corporation engaged in the
refining of petroleum and related products at San Antonio
and Corpus Christi, Texas Respondent's San Antonio
plant is the only one involved in this proceeding. During
the 12-month period preceding the hearing Respondent
sold products valued in excess of $50,000 to places outside
the State of Texas.
Respondent is engaged in commerce within the meaning
of the Act.
II. LABOR ORGANIZATION INVOLVED
The Oil Workers is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Independent violations of Section 8(a)(1)
Alvin Pogue was employed by Howell as an electrician
from the latter part of March until about May 15, 1966. He
testified that about April 15 he had a conversation with
Charles Mitchell, maintenance and construction
supervisor, in Mitchell's office. Mitchell told him the
"plant was trying to go union" and asked him if he would
try to find out "who was getting these men to do this."
Pogue said he would and he checked around a bit and
liked the idea (of going union). Mitchell, he stated, found
out that he had signed a card' and told him he was
employed on a 2-month probationary period. He said he
had a further conversation with Mitchell in which Mitchell
told him that if the men wanted the Union they would
probably lose the benefits they had.
Mitchell categorically and unequivocally denied asking
the foregoing questions and making the foregoing
statements . It was Mitchell's testimony that the only
' Pogue stated Mitchell asked him if he had signed a card and
that he asked Mitchell how he (Mitchell) had found out
295-269 0-69-3
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation he had with Pogue was one in which Pogue
asked him what would happen if the plant went on strike
and he told him that since they (Mitchell and Pogue) were
contract men from Walsh & Strickel that contruction and
maintenance work would continue. Mitchell also testified
that when the petition for an election was filed he was
instructed by President Howell and two Howell attorneys
"not to threaten, to make any promises, not to interrogate
or ask any questions, and not to start any conversation
with a question about a union."
Edward Bartosh, employed by Howell for 9 years as a
still operator, testified that he had a conversation with
J. V. Taylor, head chemist at Howell, on April 7 in the
control room at the refinery. Taylor told him that there
would be a union election in the plant and that he hoped
the men would not do the wrong thing. Taylor told him that
he had worked at Shamrock and that when the men went
on strike a lot of them lost their jobs when the Company
hired replacements and had a hard time getting jobs. He
also said the men could not get their money out of the
retirement fund.2
Taylor was not interrogated with respect to this
conversation so the testimony is uncontradicted.
Bartosh also testified to a conversation with Mitchell
about the middle of April in which Mitchell told him he
had heard there was to be an election and that he hoped
the men would vote against the Union. He told Bartosh
that he had worked in union plants and that the first thing
the men would be fighting against each other and the plant
would be shut down.
I find no denial of these statements in the testimony of
Mitchell.
Alvin L. Polasek, employed by Howell for 6 years,
testified that he had a conversation with J. V. Taylor on or
about April 29 in which Taylor told him that he hated to
see the plant go union and that the Union could not do
them any good. He also told him that he had been a
member of the Union at Shamrock for 9 or 10 years and
had learned the "Union wasn't any good." Taylor added
that any benefits would have to be renegotiated in a new
contract and that while he could not tell him not to join, he
would not join if he was in Polasek's shoes.
This testimony was likewise uncontradicted by Taylor.
This summarizes the testimony with respect to
violations of Section 8(a)(1).3
2. The discharge of Stephenson
Andrew T. Stephenson , employed by Howell as a
pumper-gauger for 11 years prior to his discharge, testified
that he first became interested in the Oil Workers in
September 1965, and that he, together with John R.
Smithey and an employee identified as Zurcher , formed an
organizing committee . The committee solicited
authorization cards from other employees during October
2 A conversation between Bartosh and W L Casey, vice
president of Howell, was admitted as background evidence to
establish company animus on the part of Respondent
3 The General Counsel also offered the testimony of Claude.
Clem Pawelek as to a conversation with Dispatcher Jarzombek on
March 19 On cross-examination Pawelek admitted that he had
told J Elro Brown, representative of the Oil Workers, that he did
not want to testify because he was not sure what had happened
and that he could not remember everything. In view of this
admission of uncertainty and the fact that the General Counsel
has not, in his brief, urged that any finding be made of Pawelek's
testimony, no finding will be made
and November (there is no evidence to show how many or
in fact if any cards were obtained), then ceased their
activity in December for fear of losing an expected
Christmas bonus. After receiving their bonus they
renewed organizational efforts in January. Stephenson did
not offer any evidence to indicate that any supervisor of
Howell knew of this activity, nor did he indicate the extent
of the activity nor whether it was overt.4
Stephenson was discharged by Superintendent W. L.
Casey on February 21. Stephenson was working the
midnight shift and as pumper it was his duty to unload
transport tanks which came in, gauge the storage tanks
and their temperature, and make all switches from tanks
as they were filled. It was also the duty of the pumper to
make rounds of the plant every 2 hours to check for
unauthorized persons and for leaks.5 On the premises was
a loading rack which contained three stalls for trucks and
each stall contained a number of valves which could be
utilized in the unloading process.6 On February 20 about
12:30 a.m. Stephenson unloaded a truck in the middle stall
into the No. 40 tank. Stephenson testified that it was the
usual procedure for the pumper to check the truck for
water and to open the domes to see that all compartments
were loaded to the butterfly, a marker that shows whether
the load is short or over. After checking, the gauger hooks
the hose to the truck, opens the valve on the hose line, and
starts the pump. On this occasion the truck was in the
middle stall and the hose was hooked to the second valve
and, after performing the above-described procedure,
Stephenson started the pump and waited the 20 to 25
minutes it takes to discharge the fuel, checked to see if the
truck was empty, and closed the valves on the unloading
line. (Stephenson testified that this was the duty of the
pumper.) At approximately 5 a.m. (the truck had entered
the unloading dock at 12:05) Stephenson checked tank 40,
saw that it was getting full, closed its valve, and opened
tank 48. (Tanks 40 and 48 were both fed from the same
line.) Stephenson then proceeded to check the gauges on
the storage tanks, which was his duty, and about 5:35 he
heard the distress whistle blow. (L. L. Lang was the
operator on duty at the control house at the time.) He ran
to the control house where Lang told him oil was running
down a drainage ditch to the San Antonio River and that it
appeared to be coming from the unloading rack.
Stephenson ran to the unloading rack and found a valve
open in the stall southerly from the one in which the truck
was parked. Oil was running from the hose into the
drainage ditch and into the separator box. Stephenson
closed the valve and then pumped the oil out of the
separator box. Stephenson and Lang then checked the
valve on tank 48 and found that the safety valve, referred
to as the clapper, had been removed.7
About 7:30 a.m. Taylor arrived at the plant and
Stephenson told him he had switched from tank 40 to 48
and that the oil had gravitated back from the tank through
4 Smithey testified, infra, that Stephenson was hospitalized in
January
5 Stephenson denied that it was a pumper 's duties to check the
valves in the loading rack ; Casey maintained it was among his
duties
6 See GC Exh 2, a rough sketch of the plant area including the
unloading dock
7 A great amount of testimony was taken with respect to this
clapper which I find irrelevant. It was established that the clapper
had been removed from tank 48 some years prior to this spill
While Stephenson denied that he knew the clapper had been
removed, Taylor testified that he heard Stephenson tell the fire
marshall that the clapper had been out for 3 or 4 years
HOWELL REFINING CO.
the unloading hose and had spilled over into the unloading
rack and down to the San Antonio River. Casey was also
present but Stephenson had no discussion with him.8
At 5:30 that afternoon Stephenson received a call from
Superintendent Casey who told him not to report for his
shift but report to Casey at 8 o'clock on the 21st. Their
conversation , as testified to by Stephenson, was as
follows:
Q. And what did Mr. Casey say to you, please?
A. Well, I went in his office and he told me, said,
"well, Steve, you had a little bad luck, didn't you?
And I said, "well, I suppose you would call it bad
luck, I don't feel like it was my fault on account of the
clapper valve."
And he said, "Well, we are not interested in that,"
said , "I have been waiting for this opportunity to let
you go," said, "I should have fired you months ago,
and that I have been waiting for this opportunity to let
you go." Said, "Your mouth is too big. You are an
agitator , and you talk too much." And said, "I know
exactly what goes on over there," and says, "you men
are not fooling me a bit." Said, "I know every word
that is said over there and everything that is going
on." And said, " I am lust going to have to let you go."
And I said, "Well, in other words, I am fired?"
And he said, "Yes, I will have your check made out
in a little bit."
And that is all what was said. There was no
investigation whatsoever of the spill or it wasn't
discussed, at all.9
On cross-examination Stephenson testified that it was
not among the duties of the pumper when making his
rounds to check to see that all the valves in the stalls were
closed although it was his responsibility to close the valves
in the stall of any truck which he unloaded. The pumper
would, if he saw an open valve, close it but Stephenson
testified that although the pumper passed by the unloading
rack on his rounds he might not notice or see an open
valve.10 On the night in question Stephenson made no
attempt to check the valves in the other stalls to see if one
was open.
It was also brought out on cross-examination that shortly
after Casey became superintendent in September or
October 1964, he had fired Stephenson because of a spill,
but he was reinstated by President Howell. i t Casey had
also reviewed Stephenson's personnel file with him,
reminded him of reprimands he had received in the past12
(Stephenson stated that two of them were not true), and
told him the next time he had a spill, he would be fired.
Casey testified that he was employed as plant
superintendent by Howell at San Antonio in
September 1964. Shortly after he moved from Corpus
Christi to San Antonio, Stephenson had a considerable
spill of kerosene (about 20 barrels). He discharged
Stephenson but, after conferring with Howell, he
reinstated him because he (Casey) was new on the job and
decided to give Stephenson another job. He did warn him
that the next spill would result in his discharge.
21
As to the duties of pumpers, Casey stated that among
them was the responsibility to see that all valves were
closed when he made his rounds. 13
About 7:05 a.m. on February 20, Casey received a call
from Leo Lang informing him that there had been a spill
and that the fire marshall was at the plant. He asked Lang
which pumper was on duty and was told it was
Stephenson. He then called J. V. Taylor, who lived closer
to the plant , and then proceeded to the plant himself,
arriving about 8:15. He and Taylor made a complete round
of the unloading truck area and found all valves closed.
They then checked tank 48 and found that the clapper had
been removed. They estimated the loss from the spill
between $800 and $900. That afternoon Casey called
Stephenson and told him not to report for his shift but to
come to the office the next morning. Casey testified to
their conversation on the 21st as follows:
Q. All right.
Describe the conversation you had with Mr.
Stephenson on the morning of February 21st.
A. Well, when Mr. Stephenson came into the office
I discussed this spill with him, and told him that we
wanted to discuss this spill when he come in, and that
it was his responsibility, and he said, "Well, I didn't
leave that valve open." Said, "Somebody left another
valve open on an adjacent line."
I told him it was still his responsibility, that he was
to make his rounds and make sure that all the valves
are closed. Supposed to make sure that all the valves
are closed ... on any line before you make a transfer,
whether it's on the truck unloading rack or whether
it's on some of the tanks out there. And I reviewed his
past record and discharged him.
Q. Did you discuss his past record with him?
A. Yes, I did.
Q. Do you recall your conversation in that respect?
A. Yes, I do. I told him that I wanted to remind him
of the reprimand that I had issued to him, I think it
was back in 1964, that stated that if he had another
spill that he would be discharged, and this is what
happened, I discharged him.
3. The discharge of Smithey
John R. Smithey, employed by Howell as a transport
driver since September 1964, was discharged March 19,
1966. He testified that in April 1965, he talked to the men
about their working conditions and then talked to the
Teamsters. At this time John Gulley, described in the
complaint as truck maintenance supervisor, told him to
stay away from the Union. Nothing came of his efforts on
behalf of the Treamsters.
In September 1965 he, Stephenson, and Zurcher talked
to the men to see if they were willing to organize and the
men decided to wait until they had received their
Christmas bonus. After Christmas, Stephenson, who had
apparently contacted Carl Anderson of the Oil Workers,
was sick in the hospital, as was Anderson, and Smithey
stated, "that slowed things down."14 On March 13 a
8 Casey testified that he did not arrive at the plant until about
8-15 and could not recall seeing Stephenson . (Stephenson's tour
ended at 8 a in )
9 The Trial Examiner granted the motion of counsel for
Respondent to stoke the statement that there was no
investigation whatsoever of the spill as conclusionary
10 When a valve was open the handle was upright and its length
was about 10 inches . It was 1 inch in diameter
i 1 This likewise was denied by Casey who stated Howell left the
decision to him and that he reinstated Stephenson after
reconsideration
12 See Resp Exh . 7a and b through 10
11 Cf Howell's instructions to pumpers , R sp Exh 13.
14 Smithey still thought the drivers s'ould be with the
Teamsters
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting was held with the Oil Workers and the employees
signed cards with the Oil Workers. Smithey testified that
on the same day (March 13 was a Sunday) he called
employees at their homes and also went to at least two
bars to contact employees.
On the morning of March 19, Casey called him on the
telephone and asked him to come to his office. He arrived
at the office about 10:15 and his version of the
conversation follows:
Q. (By Mr. Arter) All right.
What did Mr. Casey say to you?
A. He said I still had that chip on my shoulder, and
that I was talking too much He said he thought we
had this settled. And I asked him what he was talking
about. And he said, "Well, this tongue-wagging and
jaw-wagging. I told you before it had to stop."
We had quite a long conversation. Oh, it wasn't too
long.
Q. I would like to know what occurred in the
conversation, please, Mr. Smithey.
A. Well, he asked me when I first come in, he said
"I see you have still got that chip on your shoulder. I
thought we had this settled."
And I said, "Well, I am not sure what you are
talking about."
And he said well, he had some more complaints
about me talking, being a tongue-wagger. And I hadn't
had much sleep, and I was a little tired and sleepy,
and I said, "Well, let's see them. I don't want you
doing me like you did last time." I had been chewed
out before on said complaints but you never get to
see them." So I asked Mr. Casey to show them and
he refused to show them. He said that this talking
and tongue-wagging had to stop and it looked like-
MR. WEISS: What is this?
TRIAL EXAMINER: Tongue-wagging, I think.
MR. WEISS: Tongue-wagging?
TRIAL EXAMINER: Am I correct?
MR. WEISS: Yes, sir.
Said it had to stop, and he didn't feel it was doing
the Company any good, and he just didn't think he
needed me any more.
In the conversation Casey also told him he could bring
up his past with Key Petroleum, a chain of filling stations
affiliated with Howell, to which Smithey had in the past
made deliveries. Casey also asked him why he and the
men were dissatisfied and Smithey told him, "Well, the
men are dissatisfied with these working conditions and
this lost time.... The powdered coffee, the driver's
lounge, lost time and you."is
On cross-examination Smithey testified that shortly
after his employment he was assigned to make city
deliveries to Key Petroleum. Smithey admitted that he had
trouble with one station and that in September 1965, he
had a discussion with Casey concerning complaints from
stations. At this time, however, Smithey had been taken
off the city run and given the so-called field run. Smithey
admitted that during July 1965, he was involved in an
15 In his pretrial statement Smithey testified that he told Casey
that he (Smithey) was dissatified "with the working conditions,
the lost time, the powdered coffee, the drivers, the so-called
drivers lounge, and him " In his testimony before the Texas
Employment Commission he testified, when asked by Casey why
he did not like Cagey or the Company, "Well, just a few little
reasons You are ode ' There is no indication in this testimony
that Smithey was speaking for the men
incident in which he ran over some garbage cans at a Key
station, was taken to the station by a supervisor of Key
where he almost had a fistfight with the manager.
Smithey testified that at the time he went to work for'
Howell he did not know that employees were required to
be bonded.18 On his employment application form 17 he
answered in the negative two questions: (1) "Have you
ever been named as defendent in a civil or criminal suit?"
(2) "Have you ever been convicted of a crime?" Smithey,
had, however, at the time of his employment been
convicted of "Assault to Murder with Malice"18 and of
"unlawfully carrying a pistol."19
Casey testified that about 1 week prior to the time he
discharged Smithey he received an interoffice memo from
Fabian Jarzombek, the dispatcher, concerning the
possible assignment of a run to St. Louis to Smithey.
Smithey told Jarzombek, "Well, if I have to make this trip
to St. Louis I am just going to get sick." About a week later
he received another memo from Jarzombek that he had
had a report from a driver making the San Antonio run.
The driver reported that he had made a delivery to Pioneer
Flour Company and that he was asked, "Where is that guy
that is always doing all the bitching, that makes these
deliveries over here, that does all the bitching?"
Jarzombek said the report referred to Smithey. Casey then
called Smithey in to talk to him (the date was March 19).20
Casey testified that when Smithey entered his office "he
was just as mad as he could be." Casey's version of their
conversation follows:
THE WITNESS: So he did, he came out to the office.
It must have been somewhere around 10 or 11 o'clock.
I don't know the exact time when he walked in the
office.
And I said, "Smithey, I have had reports again that
you have been talking to these people, talking about
the Company to some of our outside customers."
And I asked him, "Just what is it you don't like
about this company?"
And he says, "Well, to be perfectly frank, I don't
like you, I don't like the Company, I don't like the
equipment I have to use, and that place you call a
lounge out there isn't fit for a driver, and the coffee
that you furnish for us is not fit for a driver to drink."
And I says, "Well, it's apparent, it's clear, that you
are not happy with this company, and you are relieved
of your duties."
B. Conclusions
1. As to violations of Section 8(a)(1)
The first instance of an alleged violation of Section
8(a)(1) set forth above refers to a conversation between
Pogue and Mitchell in which Mitchell allegedly
interrogated Pogue concerning the signing of a card,
reminded him that he was a probationary employee, and
told him the employees would probably lose benefits if the
plant went union. This was denied by Mitchell and I credit
this denial. Mitchell was a forthright witness and I believe
16 Smithey had, in fact, signed an application for a bond at the
time of his employment (Resp Exh 4)
17 Resp Exh 4
iN Resp Exh 3
is Resp. Exh 6
20 Casey also testified to past complaints against Smithey and
to his discussion with Smithey in September 1965, in which he
told Smithey he was giving the Company a bad image and that if
he did not like it to go ahead and resign
HOWELL REFINING CO.
his testimony that the only conversation he had with Pogue
regarding unions was the one in which Pogue inquired as
to consequences of a strike and in which Mitchell replied
that he and Pogue would not be affected.
Bartosh testified that he had a conversation with
Mitchell in April in which Mitchell told him that he had
seen union organization in plants, that the first thing the
men would be fighting among each other and the plant
would be shut down. The complaint contains no such
allegation of such an alleged violation by Mitchell; the only
references to Mitchell relate to interrogation of employees
and to a threat to discharge an employee. While counsel
contends this matter was fully litigated, Bartosh was not
cross-examined on his testimony and Mitchell was not
examined on it at all. Since the General Counsel did not
move to amend his complaint, I shall make no finding
despite the fact that the statement stands
uncontradicted.21
On April 7 Bartosh had a conversation with Taylor in
which Taylor, after referring to the possible consequences
of a strike, told him that all the benefits they were now
receiving "would have to be negotiated for." I find this a
clear threat that Respondent would take away the benefits
and negotiate from "scratch."
Polasek testified that on March 29 he had a
conversation with Taylor in which Taylor also told him that
the benefits they were then receiving they "wouldn't get to
keep" and any benefits they received would have to be
negotiated in a contract.
Both statements are violative of Section 8(a)(1).22
The immediate question presented is whether,
conceding the statements as found are violative of the Act,
they are so isolated and lacking in impact as not to warrant
the issuance of a Board order. It is to be noted that this is a
small unit of some 40 employees and that the dissuasion of
2 employees by unlawful means might have demonstrable
effect on the Union's majority and determine the results of
any election. (The election in this case was held and
objections were pending at the time of hearing but the
results are not a part of this record.) A Trial Examiner is
hardly in a position to measure the impact of such
statements on the employees subjected to such coercion.
While I have serious doubts that the coercion found herein
warrants a remedial order, I believe that the trend of
Board decisions is to the contrary and shall recommend
that one issue.
2. Violations of Section 8(a)(3)
a. The discharge of Stephenson
As to Stephenson I would find initially that there is a
lack of evidence from which any inference could be drawn
that Respondent had knowledge of his union activity. He
testified that he did engage in such activity by soliciting
cards in October and November but it was not shown that
a single card was obtained nor how many employees were
solicited. In January, according to Smithey, he was in the
hospital and "things slowed down." Unless the Board is to
establish an irrebuttable presumption that in a plant of this
size there is company knowledge of the identification of
2i Bruns Garage, Inc 142 NLRB 363
22 Raytheon Company, 160 NLRB 1603
29 The pertinent part of that Section reads
No order of the Board shall require the reinstatement of any
individual as an employee who has been suspended or
23
every individual who engages in union activity ab initto
Stephenson's case fails at the threshold. I would so find.
Apart from this fatal defect in the General Counsel's
case I would say that the Respondent had good cause to
discharge Stephenson and is accordingly protected by
Section 10(c) of the Act.23 The record is clear that
Stephenson had received prior warnings from Respondent
and that Casey had discharged him for a spill in 1964 and,
after reinstating him, warned him that the next spill would
result in his discharge. While Stephenson's testimony
would indicate that the spill occurred in the stall next to
the one in which he unloaded and was the responsibility of
the pumper who had unloaded that stall, I cannot accept
this as exculpatory. I must accept the position of
Respondent that the pumper, in making his rounds, had
the duty of checking all valves. In an operation as
dangerous as this it would be inconceivable that a check of
the premises made every 2 hours as required would not
include such a check. Whether the valve was left open in
Stephenson's stall or not, I find that it was his
responsibility to have checked and closed it.24 Without
necessarily agreeing with the decision of the Fourth
Circuit in Wellington Mill Division, West Point
Manufacturing Co., v. N.L.R.B., 330 F.2d 579, for the facts
are clearly distinguishable, I think the language of the
court as quoted in Respondent's brief clearly applicable to
this case. The court, page 586, stated:
Although the circumstances surrounding Allen's
misconduct and neglect are perhaps not as strong as
those in some of our prior decisions in this area, in
view of Allen's previous reprimand for the same sort
of misconduct within a relatively short period prior to
the second incident, this case should be controlled by
our decision in N.L.R.B. v. Threads, Incorporated, 308
F.2d 1 (4 Cir. 1962). We there held, and not for the
first time, that there is no legal basis for finding that
the assigned reason for a discharge is 'a mere
"pretext" where it is shown that the employee
concerned was guilty of prior misconduct under
circumstances which tend to negate any idea that the
employer was searching for some false but plausible
reason to be advanced in support of a discharge which
was, in fact, discriminatory and based upon Allen's
union activities. This principle gains added support in
cases where, as here, the prior misconduct for which
the employee had been specifically reprimanded and
which he had been warned not to repeat was of the
same nature as that assigned as the reason for the
discharge. Furthermore, in N.L R B. v. United Brass
Works, Inc., 287 F.2d 689, 693 (4 Cir. 1961), we held
that "[i]f discrimination may be inferred from mere
participation in union organization and activity
followed by a discharge, that inference disappears
when a reasonable explanation is presented to show
that it was not a discharge for union membership. "
Also, as we there held, the fact that an employee is a
union member and an active movant in an
organizational campaign will not shield him from
release for good cause. [Emphasis supplied.]
I do not find that the discharge of Stephenson was in
violation of Section 8(a)(1) and (3) of the Act.
discharged, or the payment to him of any back pay, it such
individual was suspended or discharged for cause
24 In reaching such a conclusion I consider it unnecessary to
resolve the sharp conflict in testimony between Stephenson and
Casey as to the visibility of the valves
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The discharge of Smithey
As to Smithey I find that the Board's presumption that
company knowledge of union activity in a small plant may
be inferred in the absence of direct evidence merits
application. Smithey, who had first sought to organize the
drivers on behalf of the Teamsters in April 1965, testified
that he again tried to organize the drivers in September
1965, when Stephenson was trying to organize the plant
employees for the Oil Workers. There followed the lull
before Christmas and things after Christmas, according to
Smithey, "drug out." The first meeting was held with the
Oil Workers on Sunday, March 13, and it was at this
meeting that it was decided all the employees should go
with the Oil Workers. On the day of the meeting Smithey
contacted the men he knew and thought he could trust and
"got every card signed that I possibly could that day."25
He called some employees at their homes, some at the Red
Rock Lounge, and some at the Top Rail dance hall. In view
of the overt character of this activity and the number of
employees contacted I believe it reasonable to infer that
the Respondent learned of it.26
As to the reasons given for Smithey's discharge, I do not
find them fictitious. Smithey admitted that in 1965 he had
a discussion with Casey in which Casey told him that he
had received complaints from various managers of Key
Stations about Smithey's attitude and his failure to assist
in unloading. He also admitted running over trash cans at
one station, being taken to the station by a Key supervisor,
and almost getting into a fistfight with the manager.
The immediate events which led to Smithey's discharge
on March 19, months after the above discussion with
Casey, were two interoffice memos from Dispatcher
Jarzombek to Casey. The first related to Smithey's refusal
to make the St. Louis run and the second to the report
from Pioneer Flour regarding his continual "bitching."
It was Casey's testimony that when he called Smithey in
on March 19 there had been no determination to fire him
but that Smithey's arrogant attitude during the
conversation led to his dismissal. I found Casey to be a
credible witness and I accept his version of the discharge
conversation. When an employee has been called in to
discuss two unfavorable reports and the employee then
tells the supervisor he does not like the company, does not
like the supervisor, and does not like the working
conditions, I believe the supervisor is justified in
discharging him. There remains the fact that Smithey was
one of the three who were most active in organizing a
union and one of the others had already been discharged
so that suspicion is created. That suspicion becomes
stronger when the record establishes that Smithey's union
activity increased and became overt, at least as far as the
men were concerned, on March 13. When a leading
organizer is discharged only 6 days after the first union
meeting, I think a prima facie case is created. But this is
all the General Counsel has established while Respondent
has given reasons, plausible on their face, for the
discharge. These reasons have not been disproved. To find
for the General Counsel I must accept the inference of
company knowledge of Smithey's union activity, which I
have done, and accept the further inference, based on the
timing of the discharge alone, that the motive was
discriminatory. While I have found, and not without some
misgiving, that Respondent violated Section 8(a)(1) of the
Act, the violations found consisted of only two instances
and were borderline in nature. In short, I think the General
Counsel required some further evidence to establish his
fair preponderance.
I shall recommend that the complaint, insofar as it
alleges violation of Section 8(a)(3) be dismissed.
IV. THE REMEDY
Having found the Respondent engaged in certain unfair
labor practices I shall recommend that it cease and desist
therefrom and take certain affirmative action necessary to
effectuate the policies of the Act.
Upon the basis of the foregoing findings and conclusions
and upon the entire record , I make the following:
CONCLUSIONS OF LAW
1. By telling its employees that if the plant went union
all benefits would have to be renegotiated, Respondent
violated Section 8(a)(1) of the Act.
2. Respondent did not violate Section 8(a)(3) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]
25 How many signatures he obtained is not disclosed
26 Cf Saxon Paint Stores, Inc , 160 NLRB 1757 (issued after the
text of the Decision herein had been sent to print), where the
Board rejected the inference of company knowledge in a unit of 70
employees where there was no union activity at the store and,
although Respondent became aware of union activity at the
laundromat across the street, it was not shown that Respondent
became aware of the identity of the employees who may have
participated in it The finding of company knowledge as set forth
above was based solely on the Trial Examiner 's conclusions as to
the law prior to the issuance of Saxon Paint.
Crown Imports Co., Inc. and Warehouse
Union Local No. 12 , International
Brotherhood of Teamsters , Chauffuers,
Warehousemen & Helpers of America. Case
20-CA-3545.
February 20,1967
DECISION AND ORDER
On March 24, 1966, Trial Examiner Henry S.
Sahm, issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a brief in support
thereof, and the General Counsel filed an answering
brief.
The National Labor Relations Board has reviewed
the rulings of the Trial Examiner made at the
hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the Respondent's exceptions and brief, and the
entire record in this case, and hereby adopts the
163 NLRB No. 4