La Gloria Oil and Gas Company

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1120 (N.L.R.B. 2002)

1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
La Gloria Oil and Gas Company and Paper-Allied-
Industrial, Chemical & Energy Workers, Inter-
national Union, Local 4-202. Cases 16–CA–
20461, 16–CA–20585, and 16–RC–10269
August 1, 2002
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND COWEN
On September 19, 2001, Administrative Law Judge
Margaret Brakebusch issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re­
spondent filed a reply brief.1
The National Labor Relations Board has delegated 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,2 and conclusions
1 The General Counsel moves to strike the Respondent’s exceptions
and supporting brief, arguing that the brief does not comply with Sec.
102.46(c) of the Board’s Rules. Specifically, the General Counsel
argues that the brief does not reference the specific exceptions ad-
dressed in each section. Because we find that the Respondent’s excep­
tions and supporting brief are in substantial compliance with the
Board’s Rules, we deny the motion to strike.
The General Counsel also contends that the Board should reject the
exceptions and supporting brief as untimely. The Respondent hand-
delivered its exceptions and supporting brief to the Board on the due
date, November 14, 2001. That same day, the Respondent sent its brief
and exceptions by certified mail to the General Counsel, who did not
receive the papers until November 21, 2001. Sec. 102.114(a) of the
Board’s Rules provides, in pertinent part, that “service on all parties
shall be made in the same manner as that utilized in filing the paper
with the Board, or in a more expeditious manner . . . .” Sec.
102.114(c), however, also provides that, in the event of a party’s failure
to comply with this requirement, the Board may nonetheless accept the
filing but “withhold or reconsider . . . any ruling on the subject matter
raised by the document until after service has been made and the served
party has had reasonable opportunity to respond.” Generally, the Board
will not reject an improperly served document absent a showing of
prejudice to a party. Century Parking, 327 NLRB 21 fn. 7 (1998).
Here, the Board granted the General Counsel an extension of time to
file an answering brief. Because the General Counsel has not demon­
strated any prejudice from the delay, we deny the motion to strike.
2 For the reasons set forth in her decision, we agree with the judge’s
finding that the Respondent is not a joint employer with PSI, a com­
pany that provided payroll services to the Respondent.
The Respondent has excepted to certain credibility findings made by
the judge. The Board’s established policy is not to overrule an adminis­
trative law judge’s resolutions with respect to credibility unless the
clear preponderance of all the evidence convinces us that the resolu­
tions are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). After a careful examination of the
record, we find no basis for reversing the findings.
only to the extent consistent with this decision, and to
adopt the recommended Order as modified.3
This case involves alleged violations of Section 8(a)(1)
and (3) of the Act by the Respondent during the Union’s
organizing campaign. Specifically, this case addresses
whether the Respondent, in violation of Section 8(a)(3),
discharged two of its employees for engaging in pro­
tected union activity. The decision also addresses
whether the Respondent interrogated its employees re­
garding their union activities and threatened the employ­
ees with job loss in violation of Section 8(a)(1).
Respondent La Gloria Gas and Oil Company is a sub­
sidiary of Crown Petroleum. La Gloria operates refiner­
ies in Tyler, Texas, and in Pasadena, Texas. This case
stems from Paper-Allied-Industrial, Chemical & Energy
Workers, International Union, Local 4-202’s effort to
organize the approximately 14 truckdrivers at the Tyler
facility. In January 2000, Floyd Saylor, a La Gloria
truckdriver, received union literature from an anonymous
source. Previously, Saylor had questioned Mike Fuller,
the drivers’ supervisor, about why the truckdrivers did
not have any benefits. After receiving the union litera­
ture, Saylor talked about the Union to all but three of the
truckdrivers. On March 9, 2000, Saylor and two other
truckdrivers, Jimmy Watts and Kevin Hensarling, met
with a union representative at a restaurant in Tyler. At
the meeting, Saylor presented the other employees with a
petition, which three drivers had already signed. The
employees at the meeting signed the petition.
On March 10, 2000, the day after the restaurant meet­
ing, Fuller asked Hensarling to come to his office to pick
up supplies. When Hensarling entered the office, Fuller
asked Hensarling if he would give Fuller some informa­
tion about the rumors that he had been hearing. Hensar­
ling deferred answering the question, stating that he did
not think it was a good time to talk about it. Fuller then
showed Hensarling a note written by Saylor in which
Saylor asked why Hensarling received a salary higher
than Saylor. Fuller also referred to Saylor as a “son of a
bitch.” Fuller then stated that he wished someone was
able to “look [him] in the eye and tell [him] what’s going
on” and that “he was about ready to kill someone over
this.” Hensarling testified that Fuller stated that, if the
drivers were doing what Fuller thought they were doing,
“then they’re going to fire everybody, including himself,
and get rid of the trucks and the trailers . . . and none of
us would have a job anymore. And he would lose every-
3 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001), and we shall substitute a new notice in accordance with our
recent decision in Ishikawa Gasket America, Inc., 337 NLRB 175
(2001).
337 NLRB No. 177
LA GLORIA OIL & GAS CO. 1121
thing he’s got and he’d have to file bankruptcy.”
Hensarling described Fuller’s demeanor as “disgusted”
and “upset.”
That same day, Fuller approached Watts and asked
him, “What’s the rumors that [he is] hearing?” Watts
informed Fuller that he and other drivers (who he did not
identify) had attended a meeting with a union representa­
tive. Watts told Fuller that Watts had decided “to go
union.” Watts explained that the drivers wanted to “go
union” for the benefits, and that Watts would go along
with the majority of the employees. As their conversa­
tion continued, Watts opined that, if the union did come,
La Gloria would probably sell the trucks or return the
leases of the trucks. Watts predicted that La Gloria
would eliminate the trucking department altogether, and
all the drivers would lose their jobs. Fuller responded by
saying, “I’d be out of a job too.”
Fuller also spoke with William Lampe. During that
conversation, Fuller asked Lampe if he knew “anything
about this rumor going on about the union?” Lampe re-
plied, “yes and no,” and added that he did not want to
talk about it.
On March 12, 2000, 2 days after these conversations
with Hensarling, Watts, and Lampe, Saylor and Lampe
made assigned delivery runs from Tyler, Texas, to Mt.
Belvue, Texas. During their runs, Paul Fisher monitored
their driving. La Gloria employs Fisher, a former State
trooper, to monitor the truckdrivers and to observe their
driving patterns. Fisher does not receive a schedule of
what drivers to follow; rather, he decides independently
if and when he will monitor a driver. Typically, Fisher
does not know the identity of the driver he is following.
After monitoring the drivers, Fisher prepares a written
report detailing the drivers’ performance, which he pro­
vides to Fuller. No deadline exists for these reports, and
Fisher estimated that he submitted reports from every 2
weeks to 6 months.
On the day that Fisher followed Saylor and Lampe,
Fisher’s report details the following behavior by both
drivers: Saylor and Lampe followed each other too
closely, exceeded the speed limit, and ran a red light.
Individually, Lampe ran another traffic light, and his
truck was missing a mud flap. Saylor left his turn signal
on for a long period of time. Fisher turned his report into
Fuller the very next day.
The day he received the report, Fuller telephoned Say-
lor and Lampe and instructed them not to return to work.
Shortly thereafter, the Respondent terminated the two
drivers. During Fuller’s telephone conversation with
Saylor, Saylor denied that he committed the safety viola­
tions contained in Fuller’s report. Fuller testified that he
decided to terminate Saylor because of Fisher’s driving
report and for two other incidents of insubordination by
Saylor. Specifically, Fuller stated that on January 22,
2000, Lampe and Saylor were at the Diamond Shamrock
facility to unload La Gloria’s product. After learning
that Lampe and Saylor would not be able to unload their
product for another 7 hours, Fuller claims that he in­
structed Saylor and Lampe to spend the night at a nearby
hotel and return the next morning to unload. Fuller
claims that Saylor and Lampe ignored his instructions
and remained at the facility. Both Saylor and Lampe
deny that Fuller instructed them to get a motel room, and
both drivers testified that they would have gone to a mo­
tel room if Fuller had authorized such an action. Fuller
stated that he prepared disciplinary memos regarding the
incident; however, neither Saylor nor Lampe saw the
memos.
Regarding Saylor’s second insubordination incident,
Fuller testified that on February 25, 2000, Saylor refused
to drive a truck assigned to him and failed to make the
assigned run. Saylor, however, testified that this particu­
lar truck had numerous known safety problems, and he
considered it unsafe to drive. Saylor further testified that
he explained his refusal to drive the truck to Fuller. Al­
though Fuller prepared a disciplinary memo regarding
Saylor’s refusal, Saylor never saw the memo. Saylor
testified that Fuller did not inform Saylor that he would
be disciplined for his refusal.
In addition to the incident at the Shamrock facility,
Fuller testified about other past problems involving
Lampe. On December 10, 1999, Lampe urinated in the
unloading area near his truck at the Arch Chemical Plant.
Lampe, when confronted by an Arch Chemical represen­
tative, did not deny his behavior. Lampe testified that he
telephoned Saylor to inform him about the incident.
Fuller prepared a memo regarding Lampe’s behavior at
Arch Chemical. Again, however, Lampe did not see this
memo. Fuller removed Lampe from this particular run
and reassigned him a new route. Lampe previously had
requested to be removed from the old route.
Fuller also testified that Lampe had attendance prob­
lems. Specifically, Fuller detailed incidents when Lampe
was unable to come to work because he had to pick up
his children and incidents when Lampe did not come to
work and failed to explain his absence. At one point,
Lampe did not show for work because he had been ar­
rested and had spent the night in jail. However, with this
incident, Lampe did telephone Fuller and explain his
absence. Fuller prepared memos regarding these inci­
dents. Nevertheless, Lampe testified that Fuller never
informed him that Lampe was being disciplined for these
incidents, and Lampe never saw the memos.
1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Regarding his general disciplinary practice, Fuller tes­
tified that, when he disciplined drivers, he would prepare
a memo summarizing the action and place the memo in
that particular driver’s file. Fuller testified that he had
prepared anywhere from 10 to 50 memos noting drivers’
severe violations, but that he had purged all his files,
save for two memos. Of the two saved memos, one in­
volved a driver who received a 2-week suspension for
following too closely and for not making a complete stop
at a railroad crossing. Fuller testified that he gave that
particular driver an opportunity to explain the incident
before imposing the suspension. Fuller also testified that
he tries to be lenient with the drivers, to “be easy” on
them, and to “give them as many chances as possible.”
After the termination of Saylor and Lampe, an election
was held on December 15, 2000, in a unit of “[a]ll truck-
drivers employed by [La Gloria] on the payroll of PSI at
its Tyler, Texas, facility excluding all other employees,
including drivers of any common carriers, guards, and
supervisors as defined in the Act.” The unit contained 14
eligible voters. Out of those voters, six voted for the
Union, and six voted against the Union. Saylor and
Lampe’s challenged ballots are determinative.
Judge’s Decision
The judge found that Fuller’s questioning of Hensar­
ling, Watts, and Lampe constituted interrogations in vio­
lation of Section 8(a)(1). The judge discredited Fuller’s
testimony that he did not know about the Union and was
not asking about union activity. The judge determined
that, although Fuller did not specifically mention the
Union by name, his references were clearly directed to
the union activity. Applying the test set forth in Ross-
more House, 269 NLRB 1176 (1984), the judge found
Fuller’s questioning to be sufficiently coercive so as to
violate Section 8(a)(1). The judge also found that
Fuller’s statements to Watts and Hensarling constituted
unlawful threats of job loss in violation of Section
8(a)(1).
The decision to credit Watts’ testimony also led the
judge to conclude that Fuller knew about the employees’
attempt to organize. Having concluded that the Respon­
dent was aware of the union activity, the judge deter-
mined that the discharge of Saylor and Lampe violated
Section 8(a)(3) of the Act. Although the judge deter-
mined that Saylor and Lampe most likely committed the
alleged driving infractions, he found that the Respondent
failed to meet its burden of demonstrating that the dis­
charge would have occurred irrespective of Saylor and
Lampe’s protected conduct.
The judge also found that the Respondent’s stated rea­
sons for discharging Saylor and Lampe—their driving
infractions and previous discipline—were pretextual and
that the true factor motivating the discharge was anti-
union animus. As evidence of pretext, the judge cited
both the suspicious timing of the discharge and disparate
treatment of the drivers. Regarding the timing of the
discharge, the judge noted that the Respondent termi­
nated Saylor and Lampe within 3 days of Watts’ conver­
sation with Fuller. In support of his determination re­
garding disparate treatment, the judge noted that the Re­
spondent had not previously terminated any driver based
solely on Fisher’s reports. Therefore, the judge con­
cluded that Fuller’s past practice was not to discipline
drivers for driving infractions.
Having found that the Respondent’s discharge of Say-
lor and Lampe violated Section 8(a)(3), the judge deter-
mined that Saylor and Lampe were, at all relevant times,
employees of the Respondent and therefore eligible to
vote. Thus, the judge recommended that the challenges
to their ballots be overruled and that their ballots be
opened and counted.
Finally, the judge rejected the Respondent’s argument
that it was a joint employer with PSI, a company that
provided payroll services to the Respondent. The judge
found that the Respondent hired the truckdrivers, deter-
mined their work hours and rates of pay, assigned the
work, and administered the discipline. In contrast, PSI
handled solely administrative matters, such as payroll.
Thus, because PSI and the Respondent did not share or
codetermine matters concerning the essential terms of
and conditions of employment, the judge determined that
the Respondent was the sole employer of the truckdriv­
ers.
Analysis
Section 8(a)(1)
We adopt the judge’s findings that Fuller’s questioning
of Hensarling, Watts, and Lampe was unlawful. The test
of whether an unlawful interrogation has occurred is
whether, under all the circumstances, the alleged interro­
gation reasonably tends to restrain, coerce, or interfere
with the employees in the exercise of rights guaranteed
by the Act. Rossmore House, 269 NLRB at 1177–1178.
An appropriate analysis of whether an unlawful interro­
gation has occurred must consider the circumstances
surrounding the alleged interrogation, such as the back-
ground of the relationship, the nature of the information
sought, the identity of the questioner, and the place and
method of interrogation. Sunnyvale Medical Clinic, 277
NLRB 1217, 1218 (1985). Here, Fuller was the truck-
drivers’ supervisor, and he initiated the questioning,
which occurred at La Gloria’s plant, either in Fuller’s
office or at the loading area. Although Fuller did not
expressly mention union activity, except to Lampe, the
LA GLORIA OIL & GAS CO. 1123
judge found that Fuller was referring to such activity.
Hensarling and Lampe refused to answer Fuller’s ques­
tions. Cf. Central Transport, Inc. v. NLRB, 997 F.2d
1180 (7th Cir. 1993) (employees’ denial of union activity
tended to show that supervisor’s mode of questioning
was not merely social or incidental). Further, as noted by
the judge, none of the employees questioned were open
and active union supporters at the time of the interroga­
tion. See, e.g., Rossmore House, supra at 1178 (open
union supporter not unlawfully interrogated). Fuller also
expanded the scope of his questioning, seeking to elicit
information about other employees’ union activities.
Interrogating an employee about other employees’ union
sentiments is unlawful. Sumo Container Station, Inc.,
317 NLRB 383 (1995). Given these surrounding cir­
cumstances, we agree with the judge that, even though
Fuller did not specifically mention the Union by name,
his questioning was sufficiently coercive to violate Sec­
tion 8(a)(1).4
We also agree with the judge’s finding that Fuller
threatened Hensarling in violation of Section 8(a)(1).
Fuller’s statements that the Respondent would fire eve­
ryone, including himself, and get rid of its business
clearly implied that employees would lose their jobs if
the Union succeeded. Fuller’s inclusion of himself in his
dire prediction does not render his words any less a
threat. Clinton Electronics Corp., 332 NLRB 479
(2000).
However, contrary to the judge’s recommendation, we
do not find that Fuller’s remarks to Watts constituted a
threat of job loss. Quite unlike Fuller’s conversations
with Hensarling, the prospect of job loss originated from
Watts, not Fuller. Fuller’s statement came only in re­
sponse to Watts’ own personal opinion that the drivers
would likely lose their jobs if the Union came. Fuller did
not add to or embellish Watts’ expressed thoughts re­
garding the effect of the Union. Rather, Fuller’s state­
ment that he also would lose his job merely mirrored
Watts’ already expressed opinion.
Section 8(a)(3) and (1)
The General Counsel contends that the terminations of
Saylor and Lampe were attributable to their union activ­
ity. In response, the Respondent argues that it terminated
4 Member Cowen agrees with his colleagues that Fuller unlawfully
interrogated employee William Lampe when Fuller asked Lampe if he
knew “anything about this rumor going on about the Union.” The
question directed to Lampe specifically referred to the Union, unlike
the questions Fuller directed to employees Watts and Hensarling.
Member Cowen finds it unnecessary, however, to pass on the Watts
and Hensarling conversations with Fuller because any additional find­
ings of unlawful interrogation would be cumulative and would not
affect the remedy.
Saylor and Lampe because of their driving violations and
disciplinary record. Thus, the issue presented is one of
motivation. In cases alleging 8(a)(3) violations that turn
on the employer’s motivation, we apply the analysis set
forth in Wright Line, 251 NLRB 1083 (1980). Under
that analysis, the General Counsel must make an initial
showing that (1) the employee was engaged in protected
activity; (2) the employer was aware of the activity; and
(3) the activity was a substantial or motivating reason for
the employer’s action. Once the General Counsel makes
this initial showing, the burden of persuasion then shifts
to the Respondent to prove its affirmative defense that it
would have taken the same action even if the employees
had not engaged in protected activity. Manno Electric,
321 NLRB 278, 283 fn. 12 (1996).
Prior to their discharges, Saylor and Lampe had en-
gaged in protected activity: Saylor had met with a union
representative, and Lampe had signed a representation
petition. We agree with the judge’s findings that the
Respondent had knowledge of this activity. After
Fuller’s conversation with Watts, Fuller knew that the
employees had attended a meeting with a union represen­
tative and that they wanted to go union for the benefits.
Given the small size of the work force (consisting of ap­
proximately 14 drivers), it can reasonably be inferred that
Fuller was aware of the identity of the employees in­
volved in the union activity. See Weise Plow Welding
Co., 123 NLRB 616, 618 (1959). Moreover, Saylor had
previously spoken to Fuller about his desire for benefits,
and Fuller, when questioning Lampe about the Union,
had received an equivocal response. Further, the timing
of the discharge in relation to Fuller’s learning of the
activity supports a finding that Fuller knew of the activ­
ity and knew who had been involved. See Montgomery
Ward & Co., 316 NLRB 1248, 1253 (1995) (Board may
infer knowledge based on circumstantial evidence such
as the timing of the alleged discriminatory actions, re­
spondent’s general knowledge of its employees’ union
activities, respondent’s animus against the union, and the
pretextual reasons given for the adverse personnel ac­
tions). See also Metro Networks, Inc., 336 NLRB 63
(2001) (Board can infer knowledge from the timing of
the discharge).5
The General Counsel also produced sufficient evi­
dence to warrant an inference that Saylor and Lampe’s
protected activity was a motivating factor in their dis­
charges. The Respondent interrogated several employ­
ees, including Lampe, regarding their union activity and
5 Chairman Hurtgen would not infer knowledge from the other fac­
tors which make up the prima facie case. Rather, in his view, knowl­
edge is a separate element of the prima facie case. He agrees that
knowledge can be based on circumstantial evidence.
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
threatened job loss if the Union were successful in ob­
taining representation. During Fuller’s interrogation of
Hensarling, Fuller raised the issue of Saylor’s involve­
ment with the Union, showing that the Respondent was
aware of Saylor’s activity. Further, the fact that Saylor
and Lampe’s discharge followed closely on the heels of
the interrogations and threat of job loss illustrates the
Respondent’s desire to cut any budding union activity.
Such evidence shows the Respondent’s animus toward
the Union and is sufficient to support a finding that this
animus played a role in the discharge of Saylor and
Lampe.
Having found that the General Counsel has met his ini­
tial burden of persuasion, we now examine the Respon­
dent’s argument that it would have taken the same action
in the absence of that protected activity. In doing so, we
must distinguish between a “pretextual” and a “dual mo­
tive” case. If the Respondent’s evidence shows that the
proffered lawful reason for the discharge did not exist, or
was not, in fact relied upon, then the Respondent’s rea­
son is pretextual. If no legitimate business justification
for the discharge exists, there is no dual motive, only
pretext. See Talawanda Springs, Inc., 280 NLRB 1353,
1355 (1986). In the case at hand, the judge supported her
finding of a violation using both a dual motive and pre-
textual rationale. However, we find that the Respondent
had no legitimate justification for the discharge and in-
stead seized on Saylor and Lampe’s driving performance
as a pretext for their discharge.
The Respondent argues that, because Lampe and Say-
lor’s driving violations were so blatantly in disregard of
public safety, the Respondent had no choice but to termi­
nate them. The Respondent also contends that no driver
had ever committed such violations before; therefore,
absent a comparable situation, the judge erred in finding
disparate treatment of Saylor and Lampe. However, the
lack of a comparable driving report is not dispositive in
light of the judge’s finding, with which we agree, that
Fuller had a practice of not disciplining drivers for driv­
ing infractions. In fact, Fuller himself testified that he
tries to be lenient with his drivers and to give them as
many chances as possible. Before the termination of
Saylor and Lampe, the Respondent had never terminated
a driver for violations contained in one of Fisher’s re-
ports. However, Fisher’s notes of drivers’ performances
describe incidents of unsafe driving by other drivers,
including failing to stop at a railroad crossing, following
too closely, speeding in excess of 10 miles per hour over
the posted limit, changing lanes unnecessarily, crossing
over the yellow line, and running off the road. Despite
these numerous violations by other drivers, the Respon­
dent took disciplinary action in only one instance, sus­
pending a driver for 2 weeks. In contrast to the situation
at hand, the Respondent gave that driver an opportunity
to explain his behavior. Here, however, though the driv­
ers faced the prospect of termination, the Respondent
failed to give either Saylor or Lampe an opportunity to
explain his conduct.6
In addition to the disparate treatment of Saylor and
Lampe, the abruptness of the discharge also supports a
finding of pretext. Fuller learned of the union activity on
March 10, 2000. On March 12, Fisher monitored the
runs of Saylor and Lampe, submitting his report the next
day, March 13. On that day, without giving them an op­
portunity to respond to Fisher’s report, the Respondent
terminated Saylor, who had initiated the organizing cam­
paign, and Lampe, one of the drivers who signed the rep­
resentation petition. Thus, the suspicious timing of the
discharge is a factor giving support to an inference that
the Respondent terminated Saylor and Lampe because of
their union activity. See Service Technology Corp., 196
NLRB 1036, 1043 (1972) (reason for disciplinary action
found to be a pretext where action was “abrupt” and
where the employer failed to give the disciplined em­
ployee an opportunity to present her version of the inci­
dent precipitating the action). Therefore, we reject the
Respondent’s assertions that it lawfully discharged Say-
lor and Lampe for their driving violations and prior dis­
ciplinary incidents. Rather, the evidence shows the Re­
spondent’s assertions were pretextual and were an at-
tempt to disguise the fact that antiunion animus was the
true motivation behind Lampe and Saylor’s discharge.
The judge found that the Respondent had not previ­
ously terminated any driver based solely on driving vio­
lations. We recognize that the Respondent here ostensi­
bly relied, in part, on prior nondriving conduct of these
employees. However, in light of the fact that this prior
conduct did not even result in the giving of a disciplinary
memo, we find that these prior incidents were suddenly
dredged up to mask a discriminatory intent.
In sum, we find that the Respondent unlawfully inter­
rogated Watts, Hensarling, and Lampe, and threatened
Hensarling in violation of Section 8(a)(1). We also find
that the Respondent’s termination of Saylor and Lampe
violated Section 8(a)(3). Therefore, we adopt the judge’s
recommendation that the Respondent’s challenges to
Saylor and Lampe’s ballots be overruled and that their
ballots be opened and counted.
6 Our dissenting colleague asserts that the conduct of Lampe and
Saylor “justified, in fact, compelled, the immediate discharges of
Lampe and Saylor—no questions asked, no excuses accepted.” Al­
though this is the opinion of our colleague, there is no evidence that the
Respondent follows such a policy, and no evidence that any external
law or regulation compels such a policy.
LA GLORIA OIL & GAS CO. 1125
ORDER
The National Labor Relations Board adopts the rec­
ommend Order of the administrative law judge as modi­
fied below and orders that La Gloria Oil and Gas Com­
pany, Tyler, Texas, its officers, agents, successors, and
assigns shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 2(d):
“(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
2. Substitute the attached notice for that of the admin­
istrative law judge.
DIRECTION
IT IS DIRECTED that the Regional Director for Region
16 shall, within 14 days from the date of this Decision,
Order, and Direction, open and count the ballots of Floyd
Saylor and William Lampe. The Regional Director shall
then prepare and serve on the parties a revised tally of
ballots and issue the appropriate certification.
MEMBER COWEN, dissenting in part.
I do not agree with my colleagues that the Respondent
violated the Act by discharging employees William
Lampe and Floyd Saylor. I find that the Respondent has
shown that it would have discharged these two employ­
ees because of their serious driving misconduct, regard-
less of their union activity.
The Respondent, who is engaged in the petroleum re-
fining business, employs drivers who drive tanker trucks
filled with liquefied petroleum gas. The Respondent also
employs former state public safety officer, Paul Fisher, to
monitor the driving behavior of its drivers, relying on
Texas motor vehicle laws and United States Department
of Transportation regulations. Fisher randomly selects a
tanker truck to follow on its assigned run; he does not
know the identity of the driver. Fisher prepares a written
summary of what he has observed and submits that
summary to the Respondent.
The Respondent assigned Lampe and Saylor to drive
tanker trucks from its refinery in Tyler, Texas, to a cus­
tomer in Mt. Belvue, Texas, on March 12, 2000. Fisher
followed them for approximately 3 hours. Fis her ob­
served that Lampe’s truck was missing a mud flap, Say-
lor forgot to turn off his turn signal, each driver intermit­
tently drove five to ten miles over the posted speed limit,
and each driver followed the other too closely. Fisher
also observed Lampe run a red light in Henderson, and
observed both drivers run a second red light in Diboll.
With respect to the Diboll incident, Fisher specifically
observed that both Lampe and Saylor had plenty of time
to stop for the red light, but neither driver applied the
brakes.
Fisher contacted the Respondent by phone the very
next day, Monday, June 13, and reported what he had
observed the previous day, including that both Lampe
and Saylor had deliberately run the red light in Diboll.
The Respondent asked Fisher to appear at the refinery to
deliver his written report and discuss it with the Respon­
dent, which he did, providing greater detail about the
driving violations he had observed. After discussion
among various principals of the Respondent, both Lampe
and Saylor were discharged because of the severity of
their driving violations.
My colleagues and the judge find that the Respondent
violated Section 8(a)(3) of the Act by discharging Lampe
and Saylor because of their union activities. My col­
leagues find that the General Counsel has met his initial
burden of proving that union activity was a motivating
factor in Lampe and Saylor’s discharges, and that the
Respondent failed to show that they would have been
discharged even in the absence of their protected activ-
ity.7 Assuming arguendo that the General Counsel has
met his initial burden of persuasion and shown that these
employees’ union activity motivated their discharges,8 I
nonetheless find that the Respondent met its burden of
showing that it would have taken the same action regard-
less of their union activity.
I accept the testimony of Paul Fisher, an experienced
former public safety official, regarding the events of
Sunday, March 12. That testimony shows that Lampe
and Saylor, each driving a tanker truck filled with flam­
mable, highly dangerous liquefied petroleum gas, tail-
gated, intermittently exceeded the speed limit, and ran
red lights twice on the same trip . In my view, the Re­
spondent had an absolute right to fire Lampe and Saylor
immediately upon learning of what they had done.
My colleagues find that Saylor and Lampe’s driving
performance on March 12 provided the Respondent with
a “pretext” for their discharges. They rely, in part, on the
lack of a consistent disciplinary practice which, they
claim, resulted in the “disparate treatment” of Lampe and
7 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans­
portation Management Corp ., 462 U.S. 393 (1983).
8 I note, however, that I disapprove of the “small plant” doctrine re-
lied on by the judge and my colleagues to impute to the Respondent
knowledge of the employees’ union activity.
1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Saylor. However, although the record shows that other
of the Respondent’s drivers had committed certain of
these acts of driving misconduct without being dis­
charged, there is no record evidence that a driver had
engaged in a comparable combination of serious acts of
driving misconduct during a single delivery run without
being discharged. Furthermore, in the context of this
case, the lack of a past, consistent disciplinary practice is,
quite simply, irrelevant. These back-to-back, apparently
deliberate, red-light running incidents in blatant disre­
gard of public safety were so serious that the Respondent
was more than justified in discharging the drivers at
fault.
My colleagues also rely on the “suspicious timing” of
the discharges, which occurred only a few days after the
Respondent learned of the union activity. Under these
circumstances, timing has little evidentiary value. The
seriousness of these driving violations justified, in fact,
compelled, the immediate discharges of Lampe and Say­
lor—no questions asked, no excuses accepted. In fact, it
would be perfectly logical to presume that any employer
with employees who had driving incidents like those that
Saylor and Lampe had would immediately cease using
them to drive trucks carrying liquefied petroleum gas on
public roads, unless that presumption is rebutted by evi­
dence establishing that the employer is completely indif­
ferent to public safety concerns. The fact that the Re­
spondent employed a former state public safety officer
just to monitor the driving behavior of its drivers con-
firms that the Respondent took these safety concerns
seriously.
Furthermore, whatever might be said about the mo­
tives of an employer who waits to discipline an employee
for past acts of misconduct until after the employer
learns of the employee’s union activities, that is not the
situation here. The Respondent discharged Saylor and
Lampe the very next day following their reckless driving,
which is the first day that the Respondent had an oppor­
tunity to review Fisher’s report on their driving miscon­
duct and discuss the report with him. There is absolutely
nothing suspicious about the timing of their discharges.
My colleagues also accept the judge’s finding that the
Respondent’s reliance on prior discipline meted out to
Lampe and Saylor was pretextual. I do not agree. The
additional acts of misconduct engaged in by Lampe and
Saylor, which include public urination at a customer’s
facility, failing to report for work, and failing to follow
Department of Transportation regulations to go off duty
during a lengthy delay in unloading their trucks at a cus­
tomer’s facility,9 support their discharges.
In sum, I find that Lampe’s and Saylor’s driving in-
fractions standing alone are sufficient to establish that the
Respondent, acting on very serious public safety con­
cerns, would have discharged Saylor and Lampe regard-
less of their union activities. I find, therefore, that the
Respondent did not violate Section 8(a)(3) of the Act as
alleged.
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 vio­
lated the Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene­
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the Paper-Allied-
Industrial, Chemical & Energy Workers International
Union, Local 4-202 or any other union.
9 Sec. 395 of the Federal Motor Carrier Safety Regulations, issued
by the Federal Highway Administration of the United States Depart­
ment of Transportation, governs the hours of service of truckdrivers.
Under Sec. 395.3(a)(2) a driver who has been on duty for 15 hours or
more may not drive again until he has been off duty for at least 8 con­
secutive hours. Thus, by refusing to comply with the Respondent’s
instruction to go off duty and get a motel room, and instead remaining
on duty for at least 15 hours, Saylor and Lampe rendered themselves
ineligible to drive until they were off duty for at least 8 hours.
The judge credited Saylor’s and Lampe’s testimony over Fuller’s
that they did not refuse the directive to go off duty and get a motel
room during the long delay, because there was “no evidence of any
benefit they derived by remaining at the facility and refusing to get a
motel room.” Based on this finding the judge found Fuller’s contrary
testimony on this point so incredible that it “tips the scales” against his
credibility generally. The judge’s factual finding is clearly erroneous.
By refusing to go off duty and take a motel room, Saylor and Lampe
benefited themselves by guaranteeing that they would not have to drive
for the Respondent again for at least 8 consecutive hours after they
finally decided to go off duty. Because it was this erroneous factual
finding that “tipped” the balance for the judge in deciding whether or
not to credit Fuller generally, the judge’s decision to generally discredit
Fuller would appear to be fatally flawed.
LA GLORIA OIL & GAS CO. 1127
WE WILL NOT coercively question you about your union
support or activit ies.
WE WILL NOT threaten you with termination if you
choose the Union to represent you.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days, offer Floyd Saylor and Wil­
liam Lampe full reinstatement to their former jobs, or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Floyd Saylor and William Lampe
whole for any loss of earnings and other benefits result­
ing from their discharge, less any net interim earnings,
plus interest.
WE WILL, within 14 days, remove from our files any
reference to the unlawful discharges of Floyd Saylor and
William Lampe, and WE WILL, within 3 days thereafter,
notify each of them in writing that this has been done and
that the discharges will not be used against them in any
way.
LA GLORIA OIL & GAS COMPANY
Art A. Laurel, Esq. and Edward B. Valverde, Esq., for the Gen­
eral Counsel.
G. Mark Jodon, Esq. and James V. Carroll III, Esq., for the
Respondent.
Bernard Middleton, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
M ARGARET BRAKEBUSCH, Administrative Law Judge. On
September 29, 2001,1 an Order Consolidating Cases, Consoli­
dated Complaint and Notice of Hearing issued in Cases 16–
CA–20461 and 16–CA–20585 upon charges filed by Paper-
Allied-Industrial, Chemical & Energy Workers, International
Union, Local 4-202 (Union), alleging that La Gloria Oil and
Gas Company (Respondent), violated Section 8(a)(1) and (3) of
the Act. Specifically, the complaint alleges that Respondent
violated Section 8(a)(3) of the Act by terminating its employees
William A. Lampe (Lampe), and Floyd Saylor (Saylor), be-
cause of their activities on behalf of the Union. The complaint
further alleges Respondent violated Section 8(a)(1) of the Act
by interrogating employees about their union activities, threat­
ening employees with termination if employees chose a union
to represent them, and making a coercive statement to a princi­
pal union organizer. Respondent submitted an answer denying
the essential allegations in the consolidated complaint.
Case 16–RC–10269 involves a Board-conducted representa­
tion election on December 15, 2000, in which 6 votes were cast
1 All dates are in 2000 unless otherwise stated.
for the Union and 6 votes were cast against the Union, with 2
determinative challenged ballots. The challenged ballots of
Saylor and Lampe were sufficient to affect the outcome of the
election. On June 1, 2001, the Regional Director for Region 16
issued an order directing hearing, second order consolidating
cases and notice of hearing in Cases 16–CA–20461, 16–CA–
20585, and 16–RC–10269. This consolidated case was tried in
Tyler, Texas, on June 13, 14, and 15, 2001.
After carefully considering the record, the demeanor of the
witnesses who testified, and the posthearing briefs filed by the
Respondent and the General Counsel, I make the following2
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with an office and place of
business in Tyler, Texas, is engaged in the business of refining
petroleum products. During the 12 months preceding issuance
of the complaint, Respondent sold and shipped from its Tyler,
Texas facility, goods valued in excess of $50,000 directly to
customers located outside the State of Texas. Respondent ad­
mits, and I find, that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
La Gloria Oil and Gas Company, a subsidiary of Crown Cen­
tral Petroleum, operates a refinery in Tyler, Texas. Prior to
Crown Central Petroleum’s acquisition of La Gloria in 1991,
the Union had been involved with the Tyler refinery for ap­
proximately 40 years. Bill Tyler, Crown’s manager of human
resources west, testified that in March, Respondent was in­
volved in contract negations with the Union for both the com­
pany’s Tyler and Pasadena, Texas facilities. Respondent had
also incurred numerous unfair labor practice charges involving
the Tyler facility. Until January, Respondent had maintained a
lockout for 5 years at its Pasadena, Texas facility. Tyler also
acknowledged that at the time of Lampe and Saylor’s discharge
in March, the Union was conducting a corporate campaign. As
of that time however, the truckdrivers operating out of the Tyler
facility were not represented by the Union and received no
benefits. Mike Fuller and his assistant, Haskell Foster, super-
vised the drivers at the Tyler facility.
B. The Initiation of the Organizing Activity
Mike Fuller hired Floyd Saylor as a truckdriver on Septem­
ber 1, 1999. In January, Saylor questioned Fuller two or three
times about Professional Staffing, Inc. or PSI, the company
sending his paychecks. In one of these conversations, Saylor
specifically asked why truckdrivers could not have benefits
when the other employees at La Gloria had benefits. Fuller told
2 To the extent that I do not reference certain facts or alleged facts
urged by either party in their brief, it is because I was not persuaded by
the underlying testimony or because I viewed such facts as irrelevant or
merely cumulative.
1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Saylor that even though La Gloria supervised him, the drivers
were paid through Professional Staffing, Inc. or PSI. In a later
conversation with Fuller around the first of February, Fuller
asked Saylor why he was pushing the issue in regard to bene­
fits. Saylor recalls that Fuller told him, “You work for La Glo­
ria, so you got what you want, but there’s no benefits. And
that’s not going to change.”
Saylor recalled that sometime in January, an anonymous
source gave him union literature by dropping it over the top of
a restroom stall while he in the restroom at Respondent’s facil­
ity. He read the material and then contacted the Union. Saylor
received additional documentation from the Union and then
spoke by telephone with union organizer, Mike Cross. Saylor
met with Cross at the union hall around the first of February
and again in mid-February. After receiving the union literature,
Saylor began talking with other drivers about the Union.3 He
recalled speaking with all drivers except Larry Thornton, Curtis
Walton, and Ed Englebrock. On March 9, Cross met with Say-
lor as well as employees Jimmy Watts and Kevin Hensarling at
the What-a-Burger restaurant in Tyler.4
Saylor testified that Fuller approached him at the end of the
day during the first week of March. During the conversation,
Fuller said he wanted to talk with Saylor about a couple of
rumors. Fuller asked Saylor if he had hired an attorney or was
he going to sue La Gloria. Saylor also asserts that Fuller asked
if he were part of the Union and Saylor told him he was. Fuller
told him that it would not work and Saylor responded, “You
never know until you try.”
Both employees, Jimmy Watts and Kevin Hensarling, testi­
fied they attended the meeting at the What-a-Burger on March
9. After Watts returned from his regular driving run on March
10, he was sitting on a propylene propane rack where the trucks
are loaded. While sitting there, Mike Fuller drove to the load­
ing area and stopped to talk with Watts. Watts recalled that
Fuller asked, “What’s the rumors that I am hearing?” Watts
explained that he could have said that he didn’t know but that
would have been lying. He could see that Fuller was worried
about something and he wasn’t going to lie to him.5 As Watts
described the conversation, he had not held back in giving
Fuller information. Watts told Fuller that he had attended a
meeting with the union representative and he identified Cross
by name. Watts told Fuller that he had promised not to give the
names of the other employees who attended the meeting, how-
ever he confirmed that he had signed “to go union.” Watts
went on to tell Fuller that the employees wanted to go Union
for the benefits. He also told Fuller that he would go with the
majority of the employees. As they talked, Watts offered his
3 There were approximately 14 drivers.
4 The Union submitted into evidence a petition containing five signa­
tures with signing dates of March 7, 8, and 9. Saylor testified that three
of the employees had signed the petition prior to the meeting. Kevin
Hensarling testified that he had been the fourth employee to sign the
petition and recalled that he had signed at the March 9 meeting. The
petition reflects that Floyd Saylor signed on March 7 and employees
Willie Jett, William Lampe, and Kevin Hensarling had signed the peti­
tion on March 8. The only signature for March 9 was Jimmy Watts.
5 Watts candidly stated that he liked both Mike Fuller and Haskell
Foster.
opinion to Fuller as to what might happen if the employees
tried to bring in a union. Watts opined that La Gloria would
probably sell the trucks or return the leases of the trucks and
sell the trailers to Martin Transport or another company. Watts
further speculated that Respondent would probably just get rid
of the trucking part of the operation altogether and they would
all be out of a job. In response, Fuller said, “I’d be out of a job
too.”
Kevin Hensarling testified that as he was unloading his truck
on March 10, Fuller came to the work area and suggested that
he come by the office to pick up some supplies. When Hensar­
ling entered the office, the supplies were all laid out for him.
Fuller asked if he would talk with him for a few minutes. Hen­
sarling could not recall the exact words used, but he recalled
that Fuller asked if he would give him some information about
the rumors that he had been hearing. Without recalling his
exact response, Hensarling told Fuller that he didn’t think that it
was time to talk about it. Hensarling also recalled Fuller’s
saying, “I just wish somebody would have the balls to be able
to look me in the eye and tell me what’s going on.” He added
that he was about ready to kill somebody over this. Fuller went
on to tell Hensarling that if it was what he thought that the guys
were doing, then everyone would be fired including himself.
Respondent would get rid of the trucks and trailers and no one
would have a job. Fuller added that he would lose everything
that he had and he would have to file bankruptcy. Hensarling
said that he could not recall how the conversation got around to
Saylor but Fuller became even more upset when he began talk­
ing about Saylor. Hensarling recalled that he had referred to
Saylor as a “fat son-of-a-bitch.” Fuller showed Hensarling a
memo written by Saylor complaining that Hensarling was get­
ting more pay.6 Fuller told Hensarling he just wanted him to
see what his friend had written about him. The conversation
concluded and Hensarling went to his truck to leave. As he was
getting into his truck, he saw Fuller also leaving the facility.
Fuller stopped at the guard shack area where Jimmy Watts was
either loading or unloading his truck. Hensarling saw Fuller
talking with Watts.
William Lampe testified that on March 9, he went to the of­
fice to turn in his fuel receipt and logbooks at the end of the
day. As he walked into the office, Fuller asked, “Hey, Bill do
you know anything about this rumor going on about the Un­
ion?” Lampe responded, “Yes and no, but I do not want to talk
to you about it.” Lampe described Fuller as becoming very
irate at that point and he asked why everyone was such a cow­
ard. Fuller asked why no one wanted to talk with him about
“what was going on with the Union.” Fuller said that when
everyone was hired, they knew they were hired into a non-
union shop without benefits. Fuller added that he knew Floyd
Saylor was involved. Lampe testified Fuller made the state­
ment, “I am so mad right now that I could kill someone.”
6 GC Exh. 4 is a memo dated November 15, 1999, written by Saylor.
In the memo, Saylor states, “Mike, just curious why the new guy Kevin
is making $8 more a load than myself, when I have more experience
than he does and I am a self starter as you know. Is there a problem
with my job performance or lacking [sic] of knowledge. Not trying to
make you mad just want a reason why the extra money to Kevin.”
LA GLORIA OIL & GAS CO. 1129
Fuller added “You know I could lose my job and lose every-
thing?” Lampe testified that when he told Fuller they just
wanted benefits, Fuller threatened that he had the full authority
to fire all of the drivers if a union were formed.
C. Lampe, and Saylor’s Run on March 12
Floyd Saylor was scheduled for his normally assigned run
from Tyler, Texas, to Mt. Belvue, Texas, on Sunday, March 12.
On Friday, March 10, Fuller called William Lampe and asked
him to also make that same run on March 12. Lampe was nor­
mally not assigned this Sunday run, however, he had occasion-
ally been offered extra runs in the past. Both Lampe and Saylor
testified they have made this same run from 30 to 50 times
previously. Lampe and Saylor left Respondent’s facility at the
same time and Lampe followed Saylor throughout the trip to
Mt. Belvue.
Paul Fisher has worked part time for Respondent for 5 or 6
years. His job is to randomly monitor the driving patterns of
the La Gloria drivers and to report any type of traffic violations.
Fisher testified that it is his practice to follow La Gloria trucks
and then prepare handwritten summaries of the drivers’ driving
performance. Pursuant to subpoena, Respondent provided a
compilation of handwritten notes by Fisher covering the period
from November 7, 1996, to June 2, 2000. The note documents
that Fisher picked up the trucks driven by Saylor and Lampe as
they left Respondent’s facility on March 12. His notes reflect
that he followed the trucks from 12:55 until 4 p.m. Over the
course of the trip, Fisher noted a series of infractions that in­
cluded such things as Lampe’s truck having a missing mud flap
and Saylor having left the turn signal on for a period of time.
Fisher recorded that although Lampe stopped at a railroad track
in Henderson, Texas, he then proceeded to run a traffic light.
Fisher goes on to note infractions of following too closely and
the trucks intermittently driving over the speed limit. The re-
port ends with the notation that both trucks ran a red light in
Diboll, Texas. Fisher testified that there is no set time for him
to turn in his reports to Mike Fuller and he estimated that he
might submit the reports every 2 weeks or even every 6
months. In this instance however, Fisher contacted Fuller on
March 13 and informed him of the content of his March 12
monitoring report and submitted the report to Fuller later that
day.
D. Saylor’s Discharge
Fuller testified that Fisher called him on Monday morning to
report the incidents of the previous day. Fuller maintained that
this was the first time that Fisher had ever called to report that
he had observed drivers “blatantly or intentionally” running a
red light. Fuller said he made the decision to terminate Saylor
because of his tailgating and running the red light on March 12,
and because of Saylor’s two prior incidents of insubordination.
Saylor denied that he ran any red lights, followed too closely,
or violated any traffic laws during the March 12 run to Mt.
Belvue.
Fuller maintains that Saylor’s first incident of insubordina­
tion occurred on January 22. He said Lampe called him from
the Diamond Shamrock facility,7 and reported that he and Say-
lor were having problems getting their product unloaded and
they were going to be there for a long time. Fuller testified that
he told Lampe that he and Saylor were to get a motel room and
Respondent would send a com check to pay for the room.
Fuller asserts that despite his directive, Saylor and Lampe re­
mained at the unloading facility. Respondent asserts that both
Saylor and Lampe were insubordinate by remaining at the facil­
ity and not getting a hotel room.8
Saylor testified that when he and Lampe arrived at the Dia­
mond Shamrock facility on January 22, there had been a long
line of trucks ahead of them to unload product. They were
given an estimate of 5 to 7 hours before they could unload their
trucks. Lampe recalled their actual wait had been closer to 9
hours. Lampe called Fuller twice to give an update on how
long it was taking for them to get their trucks unloaded. Fuller
told him that they should wait it out. Saylor and Lampe spent
their time sitting in the drivers’ breakroom at the unloading
facility. They napped while sitting in the chairs, ate from the
vending machines, and talked with other drivers who were also
waiting. Lampe denies that at any time Fuller authorized their
getting a hotel room. Both Lampe and Saylor testified that if
authorized to do so, they would have obtained a motel room
rather than to wait at the facility as they had done.
Fuller testified the second incident of insubordination by
Saylor occurred on February 25, when he refused to drive a
loaner truck assigned to him and he failed to make the assigned
run. Saylor recalled that when he reported for his run on Feb­
ruary 25, his regular truck was not there and he was left with a
rental truck. Saylor described the truck as a lease truck that had
been used very seldom and it was considered to be the “last
resort” truck. Saylor told Foster that the rental truck was an
unsafe truck and that other drivers had complained about the
truck. Saylor had driven the truck previously and knew that it
shook and vibrated at all speeds. Despite Saylor’s protests,
Foster told him to take the truck and added, “You’ll love that
55 mile an hour truck.” When Saylor asked to see Fuller, Fos­
ter told him that he was in a safety meeting. When Saylor
asked where the meeting was being held, Foster told him it was
none of his business. Saylor does not deny he told Foster he
was not going to take out an unsafe truck. Saylor later spoke
with Fuller about his refusal to take the truck. Although Fuller
told him that he should have taken the truck, he was not disci­
plined for his refusal. Saylor testified that prior to his dis­
charge, he had not received discipline for any incidents. Fuller
maintained he had told Saylor that he was disciplined for both
the January 22 and February 25 incidents.
E. Lampe’s Discharge
Mike Fuller testified he made the decision to terminate
Lampe because of the driving incidents on March 12 and be-
cause of his having previously received discipline. Lampe
7 Diamond Shamrock is described as one of the facilities where La
Gloria drivers routinely unload their product.
8 Fuller said that they also completed their log incorrectly by show­
ing that they were off duty. He maintained that by remaining at the
unloading facility, they were to have shown that they were on duty but
not driving.
1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
denied that he ran any red lights on March 12 or failed to main­
tain a safe distance between other vehicles. Lampe admitted
that occasionally, he might go over the speed limit, although it
is unintentional. He said that there are no specific time re­
quirements for deliveries to Mt. Belvue, Texas, and he did not
recall being in any hurry on this March 12 run.
Fuller identified the first prior discipline given to Lampe was
for his having urinated in the unloading area near his truck at
the Arch Chemical Plant on December 10, 1999. A representa­
tive from Arch Chemical called him,9 and told him that he did­
n’t want Lampe returning to the plant. Fuller assigned Lampe
to another kind of run and removed him from the regular acid
run to Arch Chemical. Lampe does not deny he urinated near
his truck as alleged. He contends he had been taking medica­
tion that caused him to urinate with greater urgency and he had
not thought that he had enough time to get to the restroom fa­
cilities. He urinated between his truck and trailer, but didn’t
think that anyone could have seen him. When confronted by an
Arch Chemical representative, he admitted what he had done
and then called Fuller to let him know what had happened.
Lampe denied that he received any discipline from Fuller for
this incident. Three days after the incident, Fuller told him that
he was being taken off the acid truck run and transferred to
liquid propane. Lampe testified that although the acid truck
deliveries paid more money, he was pleased with the move.
While on the acid run, he had been required to work every
weekend and he had little opportunity to spend with his
children. Lampe further maintained that he had previously
asked Fuller to take him off the acid run schedule. From that
time until his discharge in March, Lampe was given liquid pro-
pane deliveries rather than the acid product deliveries.
Fuller maintained the second discipline was given to Lampe
for his failure to get a motel room when he and Saylor had been
stranded at the Diamond Shamrock facility. Lampe denied he
had been given any authorization by Fuller to get a hotel room
during their long wait at the Diamond Shamrock facility. He
remained at the facility and had logged his time as off duty.
Fuller also testified that Lampe received prior discipline for
an attendance problem during his last 2 months of employment.
Respondent introduced into evidence three memos concerning
Lampe’s attendance that was alleged to have been added to
Lampe’s personnel file in January and February. A January 27
memo contains “Bill Lampe could not run today because he
had to go get his kinds [sic]. This has been a regular problem
with Lampe’s attendance.” A February 7, memo states, “Bill
Lampe did not come to work Saturday or Sunday. He did not
call anyone to say he would not be at work. I told Lampe this
could not continue.” A third memo dated February 24 contains
the language “Last night I received a phone call from Bill
Lampe telling me that he had just got out of jail and could not
make his run. Lampe tells me that he was arrested falsely.
This is getting to be a real problem with Lampe’s attendance
9 Although the incident occurred on December 10, 1999, the first
written documentation of the incident from Arch Chemical is an e-mail
dated April 24, 2000. The e-mail confirms that there had been previous
conversations and that Arch Chemical did not want Lampe to return to
their plant.
concerning the problems with his kids.” Lampe admitted that
he called Fuller on February 24 to let him know that he could
not make his run as he was just released from jail.10 Fuller told
him he could make up the run. Lampe denies that Fuller ever
told him that he was being disciplined because of this cancella­
tion or for any other attendance incident. Lampe contends that
not only was he not disciplined for a failure to show up on Feb­
ruary 7, he had not even been scheduled to work on that day.
Lampe testified that he was not scheduled to work any week-
ends in February. Contrary to the testimony of Lampe, Fuller
asserted that he had told Lampe about each incident of disci­
pline prior to March 12.
F. 8(a)(1) Allegations
In his brief, counsel for the General Counsel sets forth vari­
ous incidents of alleged interrogation and threats by Respon­
dent purported to be violative of Section 8(a)(1) of the Act.
General Counsel asserts Fuller’s questioning of Lampe on
March 9 and his questioning of Hensarling and Watts on March
10, constitutes unlawful interrogation and is violative of Sec­
tion 8(a)(1) of the Act. General Counsel also alleges that in
these same conversations with Lampe and Watts, Fuller vio­
lated the Act by threatening employees with job loss if the Un­
ion were selected as the employees’ bargaining representative.
Paragraph 7(c) of the consolidated complaint alleges that
about March 17, Fuller coerced an employee by “advising that
he had just gotten rid of the ring-leader and that trouble should
stop now.” The proof of this allegation was presented through
the testimony of Floyd Saylor. Saylor testified that on March
17, he had a brief conversation with Fuller when he returned to
Respondent’s facility to pick up his last check. Saylor asserts
Fuller muttered under his breath, “I just got rid of the ring-
leader and now trouble will stop.”
G. Analysis and Conclusions
The discharges of Saylor and Lampe are the focal point of
this case and certainly the most difficult for analysis. At hear­
ing, all counsels agreed that the resolution of Lampe and Say-
lor’s discharges is substantially coextensive with the resolution
of the challenged ballots. General Counsel maintains Respon­
dent terminated Lampe and Saylor because they engaged in
union activity. General Counsel relies upon the timing of their
discharges in relation to their union activities, Respondent’s
knowledge, and the nature of their discharges are sufficient to
demonstrate that their discharges on March 13 were pretextual.
Under Board precedent established in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1982), cert.
denied 455 U.S. 989 (1982), and approved by the Supreme
Court in NLRB v. Transportation Management Corp., 462 U.S.
403 (1983), the General Counsel bears the initial burden to
establish a prima facie showing that (1) the alleged discrimina­
tees engaged in union activity; (2) the employer had knowledge
of that activity; and (3) the employer based its discriminatory
action upon antiunion animus. Once General Counsel meets its
10 Lampe testified that he could have made up any excuse but chose
to tell Fuller the truth about why he was not available to work. He
explained that he had been incarcerated because of an allegation of his
ex-wife that was later litigated.
LA GLORIA OIL & GAS CO. 1131
burden of persuasion, the burden shifts to the Respondent to
show it would have taken the discriminatory action without
consideration of the employee’s protected activity. Bardaville
Electric, 309 NLRB 337 (1992).
Respondent asserts that the discharges were based upon
these employees’ egregious driving performances on March 12
and their having received prior discipline for other infractions.
The Board has previously noted that the Government only has
to show that some animus was present. There must be just
enough to be a “substantial or motivating factor.” Signature
Flight Support, 333 NLRB 1250 (2001). Once General Coun­
sel has demonstrated the presence of animus in the decision-
making atmosphere, Respondent must show that its decision
was not tainted by it. In Signature, the Board further noted that
the employer couldn’t simply present a legitimate reason for its
action, but must persuade by a preponderance of the evidence
that the same action would have taken place, even in the ab­
sence of the protected activity.
The General Counsel has made a prima facie showing herein
sufficient to support the inference that the protected conduct by
Saylor and Lampe was a motivating factor in Respondent’s
termination of their employment. For the reasons set forth
below, it is also my finding that Respondent has not met its
burden under Wright Line to show that these employees would
have been terminated without consideration of their protected
activity.
1. Respondent’s knowledge of these employees’
union activity
Respondent denies any knowledge of union activity by its
drivers prior to the discharges of Lampe and Saylor. Fuller
claimed that he had been totally unaware of any union activity
at the facility prior to his talking with Saylor on March 13.
When he spoke with Saylor about the driving incidents on
March 12, Saylor told him he (Fuller) was just trying to get rid
of him because he was trying to organize a union. I do not
credit Fuller’s testimony. General Counsel presented four wit­
nesses who testified that Fuller asked them about “rumors.” As
I will discuss later in this decision, I do not credit all of the
testimony presented by these four witnesses.11 I do find that
there is a sufficient thread of truth that runs through these al­
leged conversations to support a finding of Respondent knowl­
edge. Repeatedly, Fuller asked about rumors and asked what
the drivers were involved in that excluded him. Respondent
concedes Fuller may have asked the drivers about rumors.12 On
direct examination, Fuller said that he heard rumors about the
drivers holding a meeting, but he thought that the meeting con­
cerned benefits and insurance. Fuller explained his assumption
by saying said that he had been aware of the drivers’ interest in
benefits for years. On cross-examination, Fuller admitted that
11 I do not credit the testimony of Saylor concerning a February con­
versation with Fuller. Saylor alleges that Fuller asked him if one of the
rumors was about the Union and if he (Saylor) was a part of it. Saylor
also test ified that in February, Fuller told him he knew that Saylor was
the ringleader. This alleged conversation is consistent with other non-
credible testimony by Saylor that was gratuitous and self-serving.
12 Fuller admitted that he asked Lampe about rumors and could not
recall if he asked Saylor, Watts, and Hensarling.
in an earlier affidavit given to the Board, he said the rumors
involved a potential buy out of the Company. In its brief, Re­
spondent asserts that Fuller assumed the rumors involved either
benefits or the potential “buy out” of Crown/La Gloria. At one
point during Fuller’s testimony, he asserts he did not recall
whether he asked the drivers about buy out rumors. At another
point in his testimony, Fuller contended that he had asked the
drivers about the rumors because he just wanted to know what
they had heard about the buy out. Responded submitted three
March press releases about two corporations submitting pro­
posals to acquire Crown Central Petroleum Corporation. Fuller
was asked on cross-examination whether as a member of man­
agement, he would not have been in a better position than the
drivers to know about the buy out world. Fuller replied “I don’t
think so.” On cross-examination, Fuller’s testimony about the
buy-out rumors included the following:
Q. Where did the thought of the buy-out—how did it come

about?

A. We had I believe that Crown—the company let us know

that Crown was—La Gloria was for sale.

Q. The company let you know—

A. I believe that is right, I can’t really—

Q. Who is us?

A. Everybody that worked there.

Q. Everybody, including the PSI drivers?

A. I don’t recall that. Well, they probably heard that through

the rumors.

Q. They did? How did they hear that?

A. I do not know.

Q. —just word of mouth?

A. Probably so.

When Fuller was asked why he needed to know what the
drivers knew about a buy out, he admitted he didn’t need to
know and he was just being curious. He could not recall when
he first heard there was a buy out in the works and he could not
recall taking with anyone else other than the drivers about a
buy-out rumor. Even though Respondent presents a plausible
“rumor” that could have been the basis for Fuller’s inquiries;
Fuller’s testimony simply does not support such a finding.
Finding that Fuller’s testimony runs counter to the likelihood of
benefits or buy out rumors, I must conclude that it was the ru­
mors of union activity that prompted Fuller’s inquiries.
As indicated above, I do not find all of General Counsel’s
witnesses to be credible with respect to their alleged conversa­
tions with Fuller. I do find however, that employee Watts was
an impressive and credible witness. His demeanor and his
straightforward recitation of the conversation with Fuller was
convincing. Unlike Saylor, who often appeared to improvise
and embellish his testimony, Watts’s recall appeared to be
without adornment. In describing his conversation, Watts re-
called that he had been the one who predicted the possibility of
job loss or shutdown of the driving operation if the Union were
selected. He did not gratuitously ascribe these threats to Fuller.
It is certainly believable that Fuller’s response was, “Yes, and I
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
will be out of a job too.”13 This comment is consistent with his
comments to Lampe that Fuller could lose his job and lose eve­
rything. In his conversation with Hensarling, Fuller predicted
that if the employees selected the Union, he would lose every-
thing and would have to file bankruptcy. Considering the tes­
timony of all witnesses, I find Watts to be a totally credible
witness.14 If Fuller did not know with certainty that there was
organizing at the facility prior to talking with Watts, he cer­
tainly knew it after talking with Watts.15
2. Timing
One of the most persuasive factors in finding these dis­
charges to be violative of Section 8(a)(3) is the timing of the
terminations. Lampe and Saylor were discharged within 3 days
of Watts having told Fuller about the union meeting and the
drivers wanting the Union to obtain benefits. The precipitous
nature of the discharges certainly gives rise to a strong suspi­
cion that the discharges were premised upon union animus. The
Board has previously noted similar timing to be “stunningly
obvious.”16 The record also reflects this union activity came at
a sensitive time for Respondent in dealing with the Union. This
union activity came within 2 months of a lockout that had
lasted for 5 years at Respondent’s Pasadena, Texas facility.
Respondent was faced with contract negotiations with the Un­
ion for both the Tyler, Texas, and Pasadena, Texas facilities.
Respondent admits that it had been the target of numerous un­
fair labor practice charges at the Tyler facility and the Union
was waging a corporate campaign.
3. The issue of disparity
Respondent submits that no other driver had ever committed
the types of violations that Lampe and Saylor committed on
March 12. Respondent further asserts that before finding dispa­
rate enforcement of discipline, the Board requires evidence of
leniency in a “truly comparable situation.” Counsel argues in
brief that Respondent should not be found to have disciplined
13 Although Fuller denied knowledge of the union petition, he did
not deny having a conversation with Watts on March 9.
14 Respondent asserts in its brief that Watts’s testimony is unreliable
because he testified that he signed a union authorization card at the
What -a-Burger meeting. Respondent points out that Saylor testified
that Watts signed the union petition and the petition that was received
into evidence bears Watts’s signature. I am not convinced that Watts
has any appreciation for a union authorization card versus a union
petition. The record reflects that Watts attended the union meeting on
March 9 and signed a document to show his interest in union represen­
tation. Whether he mistakenly t ook this document to be an authoriza­
tion card does not discredit his testimony.
15 It is well established that Board and court precedent knowledge
may be inferred from the record as a whole. Consideration may be
given to the small number of employees as well as the timing and
abruptness of the employer’s adverse action. Wiese Plow Welding Co.,
123 NLRB 616 (1959); Coca-Cola of Miami, 237 NLRB 936, 944
(1978); and NLRB v. Sutherland Lumber Co., 452 F.2d 67 (7th Cir.
1971). With comparable employee complements the Board has found
that knowledge of employees’ union activity may be imputed to the
employer under the “small-plant doctrine.” Modesti Brothers, Inc., 255
NLRB 911 (1981).
16 North Atlantic Medical Services, 329 NLRB 85 (1999), and NLRB
v. Novelty Products Co., 424 F.2d 748, 750 (2d Cir. 1970).
Saylor and Lampe disparately simply because Respondent is
unable to identify another driver who has committed the same
offense.
There is no dispute that a driver’s manual is given to drivers
when they begin their employment with Respondent. The
manual contains disciplinary rules and regulations and the pen­
alties that attach for noncompliance. Respondent does not dis­
pute General Counsel’s assertion that Fisher’s summaries con­
tain 68 violations of the driver’s manual. General Counsel
submits that Fisher’s reports contain eight entries between
April 17, 1997, and September 15, 1998, that Fisher flagged
with additional notes “talked to you already about these” in the
margin, indicating Fisher had previously talked to Fuller about
the entry. The March 12 report on Lampe and Saylor that
Fisher testified was “the worst he had observed” was not
flagged. General Counsel further asserts that Fisher’s report
also contains seven entries that describe Respondent’s drivers
committing three or more violations of the Respondent’s man-
ual.17
Despite previous violations of the driver’s manual, no driver
had ever been terminated for traffic violations reported by
Fisher before the termination of Lampe and Saylor. Fuller
testified that he talks with the drivers about all violations noted
by Fisher and if a violation is severe or notable, he may prepare
a written memo. He estimates that he has prepared more than
10 but less than 50 memos of serious or notable violations. The
record however, contains only one memo dated prior to Lampe
and Saylor’s discharge documenting that employee Curtis
Walton was given a week off in March 1998 because, of
Fisher’s “bad driving report.” A second memo is dated June
30, 2000, and documents Fuller talked with a newly-trained
driver who was reported as following too closely by Fisher. No
discipline was imposed upon the employee. Fuller justified the
absence of any other memo by his assertion that he purges the
files every 6 months. Respondent asserts that it also terminated
driver Robert Vaughn in April 1999. Bill Tyler, manager of
human resources, admitted that Vaughn’s termination followed
his having a wreck while under the influence of drugs.
Based upon Fuller’s overall testimony, I do not find his tes­
timony to be credible with respect to prior discipline. I do not
find it plausible that Fuller consistently prepared 10 to 50
memos noting drivers’ severe or notable violations and yet
purged them all from the files with the exception of the two
noted above. Respondent is correct in its assertion that there is
no record of any incident in which a driver engaged in the exact
same conduct for which Lampe and Saylor were terminated.
This fact does not preclude a finding that Respondent acted
disparately in its treatment of Lampe and Saylor. Despite the
driver’s manual provisions to the contrary, Fuller’s past prac­
tice was not to discipline drivers for driving infractions. His
practice was not even to prepare additional documentation be­
yond Fisher’s reports.
17 The driver’s manual specifies that a driver is “immediately termi­
nated” for the third offense of such conduct as following too closely,
driving too fast for existing conditions, failure to observe speed limits,
failure to comply with laws relating to crossing railroads, and failure to
stop for stop signs or signals.
LA GLORIA OIL & GAS CO. 1133
4. The 8(a)(1) analysis
In brief, General Counsel argues that Respondent unlawfully
interrogated employees William Lampe, Floyd Saylor, Kevin
Hensarling, and Jimmy Watts. General Counsel also submits
Respondent unlawfully threatened employees Lampe, Saylor,
and Watts because of their union activity.18 The final 8(a)(1)
violation alleged in the complaint concerns the comment made
by Fuller to Saylor on the day he returned to pick up his final
check.
a. Alleged interrogation
In determining whether or not an interrogation violates Sec­
tion 8(a)(1) of the Act, the Board looks to whether under all the
circumstances the interrogation reasonably tends to interfere
with, restrain, or coerce employees in the exercise of the Sec­
tion 7 rights. The total circumstances of the conversation must
be considered in determining whether any questioning was
coercive in nature. See Rossmore House, 269 NLRB 1176
(1984). I have reviewed the testimony of Lampe, Hensarling,
Watts, and Saylor in light of the Board’s analysis. I find the
testimony of Lampe, Hensarling, and Watts to support that
Respondent engaged in interrogation violative of Section
8(a)(1) of the Act.19 The totality of the circumstances of
Fuller’s conversations with these three employees reflects the
coercive nature of the questioning. While Fuller admits that he
questioned employees about rumors, he denies that he asked
about the Union. I do not credit Fuller’s testimony that he did
not know about the Union and did not ask about union activity.
Even if Fuller had failed to specifically mention the Union by
name, his references were clearly directed to the union organ­
izational effort and sufficiently coercive in nature to be viola­
tive of Section 8(a)(1).20 At the time of Fuller’s questioning of
Lampe, Hensarling, and Watts, none of these employees were
open and active union supporters. His questioning them about
the rumors at the plant was not limited to just their union activ­
ity, but he sought to elicit information about other employees’
union activity. It is well established that interrogating an em­
ployee regarding the union sentiments of others is unlawful.
See Cumberland Farms, 307 NLRB 1479 (1992), and Sumo
Container Station, Inc., 317 NLRB 383 (1995). Accordingly, I
find that Fuller unlawfully interrogated Watts, Hensarling, and
Lampe on March 9 and 10.
b. Alleged unlawful threats
In reviewing all of the testimony of General Counsel’s wit­
nesses, I find Jimmy Watts’s description of his conversation
with Fuller to be the most credible description of Fuller’s dis­
cussions with the drivers. When Watts recited to Fuller all the
18 I note that the consolidated complaint contains no allegations of an
unlawful threat occurring on March 10, the date Fuller spoke with
Watts. I also note that while Kevin Hensarling testified about a threat
of job loss by Fuller on March 10, this date is not included in the
consolidated complaint and this threat is only tangentially referenced
by counsel for the General Counsel in his brief.
19 Saylor testified that in mid-February, Fuller asked him if one of
the rumors was about the Union and if he were a part of it. General
Counsel did not allege this February conversation as violative of Sec.
8(a)(1). Were it alleged, I would find no basis to credit Saylor.
20 Electro-Netic Products Corp., 183 NLRB 482 (1970).
possible ramifications of the employees bringing in the Union
to get their benefits, Fuller verbalized his realization that he
would be out of a job. In each of the alleged 8(a)(1) conversa­
tions, Fuller is described as verbalizing his own concerns and
anticipating how he will be personally affected by the organiza­
tional effort. He talks of losing his job and looking at the pos­
sibility of bankruptcy. Based upon Fuller’s demeanor at trial
and his apparent supervisory style with these drivers, it is be­
lievable that his concerns and predictions were directed at his
own potential job loss.21 I also credit the testimony of Hensar­
ling who testified that Fuller warned, “If it’s what I think you
guys are doing, then they’re going to fire everybody, including
me and get rid of the trucks and trailers, none of us would have
jobs anymore.” Fuller then exclaimed, “I will lose everything
I’ve got and will have to file bankruptcy and there is nothing
else I could do.” The record reflects that Fuller was, in effect,
exchanging his concerns with the drivers about what might
happen to him and to the driving operation if the drivers elected
a union. Despite that these conversations may have been more
a discussion of his own “gut feelings,” Fuller’s statements are
no less violative of the Act. The fact that Fuller includes him-
self in the predicted job loss does not neutralize or legitimate
his statements. Clinton Electronics Corp., 332 NLRB 479
(2000), and Central Transport v. NLRB, 997 F.2d 1180, 1191
(7th Cir. 1993).
c. Alleged coercion of Saylor on March 17
Saylor alleges that when he went to the plant on March 17,
he overheard Fuller make the comment, “I just got rid of the
ring-leader and now trouble will stop.” I do not credit this
statement by Saylor. This testimony is consistent with other
testimony of Saylor that appears contrived and self-serving.
Just as Saylor appeared to try to bolster his case by alleging the
mid-February interrogation, this alleged comment appears to be
a similar kind of after thought. Additionally, it is certainly
inconceivable that Fuller would have made such a comment at
that time. By March 17, Fuller had already met with Human
Resources Director Tyler and would have been fully apprised
of what he could say to Saylor. As an additional precaution,
Fuller asked security guard Kenneth Smith to be present when
he gave the final check to Saylor at the entrance to Respon­
dent’s facility.
On the basis of the above reasoning, I find that on or about
March 9 and 10, 2000; Respondent interrogated employees
about their union activities and the union activities of others
and threatened employees with loss of jobs if they selected the
Union as their collective-bargaining representative. Con­
versely, I recommend dismissal of complaint allegations 7(c).
d. Whether Lampe and Saylor would have been terminated
absent the Union’s organizational efforts
In his brief, counsel for the Respondent states that my credi­
bility determinations are critical to the resolution of this case.
Counsel asserts that I must determine whether Respondent’s
21 While I am not convinced that Fuller had the self-assurance to
proclaim that he would fire all of the drivers if a union were formed, I
am satisfied that he predicted they would all lose their jobs if the em­
ployees selected the Union to represent them.
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
explanation for the terminations is either supported by falsify­
ing documents and by a conspiracy of false testimony or that
Saylor and Lampe did in fact commit the violations and their
dismissals were fully warranted. While I agree that credibility
determinations are critical, a resolution of the matter requires
more than a determination of whether Lampe and Saylor com­
mitted the driving infractions as alleged by Respondent. Hav­
ing heard 3 days of testimony and after reading 954 pages of
transcript, I must conclude that Lampe and Saylor’s actual driv­
ing performance on March 12 remains an unsolved mystery.
As evidenced above, I have not credited Lampe and Saylor with
respect to their full testimony. Based upon their apparent ve­
racity in other areas of testimony, I suspect they committed
driving infractions over the course of the 3 hours in which they
were followed. It is certainly likely that these infractions may
have even included running the red light as Fisher states in his
report. The total record evidence does not support however,
that these employees would have been terminated if there had
been no union organizational activity. While I do not fully
credit Lampe and Saylor’s denials of any driving infractions, I
do not credit Fuller’s assertion that Lampe and Saylor were
terminated because of their driving on March 12 and because of
their having received prior discipline.
As discussed above, the record does not support that Fuller
had a practice of disciplining or even counseling drivers about
infractions noted in Fisher’s reports. While Fuller claims that
he has written more than 10 and less than 50 disciplinary ac­
tions, Respondent could only produce the disciplinary memo
for Curtis Walton that proceeded March 12, 2000. Fuller con-
tends the other memos could not be produced because he
purged the files every 6 months. This testimony is contradicted
by the very fact that Walton’s discipline is dated March 1998. I
also note that Walton’s disciplinary memo indicates that Fuller
specifically called Walton and asked him to provide an expla­
nation of the incident prior to imposing discipline. No such
opportunity to explain was given to Lampe and Saylor.
e. Alleged prior discipline
Respondent contends that the decision to terminate Lampe
and Saylor was based not only upon their driving on March 12,
but also upon prior disciplinary incidents. For the reasons ex­
plained below, I find Respondent’s asserted reliance on these
alleged incidents enhances the pretextual nature of these dis­
charges.
(1) Lampe’s alleged prior discipline
Respondent contends that Lampe had been the subject of
three prior disciplinary warnings covering the period from De­
cember 10, 1999, to the time of his discharge. Lampe does not
dispute that he urinated on the grounds of the Arch Chemical
plant in December 1999. Despite the fact that a complaint was
made by Arch Chemical and Lampe was restricted from that
facility, Lampe was not terminated. He was simply allowed to
transfer to another run.22
Lampe denies he had an attendance problem prior to his dis­
charge. He admits he was unable to take the run on February
22 This accommodation by Respondent preceded Lampe’s union ac­
tivity.
24, because of his having just been released from jail. In look­
ing at just the December 10 and February 24 incidents, it is
understandable that Fuller might have been displeased with
Lampe’s performance. I would find Fuller’s testimony to be far
more credible if he had restricted Lampe’s infractions to just
those uncontroverted incidents. The fact that Fuller appears to
bolster Lampe’s prior discipline history by including the Dia­
mond Shamrock incident tips the scales against his credibility.
Fuller maintains that Saylor and Lampe were insubordinate
because they did not get a motel room to wait out the long de-
lay at Diamond Shamrock. If Fuller is to be credited, one
would have to conclude that Lampe and Saylor chose to sit in a
driver’s lounge or in their trucks for 9 hours rather than go to a
comfortable motel room where they could have had privacy and
a chance to adequately rest. If I did not credit Lampe and Say-
lor on any other point, I find their testimony totally credible in
this regard. They both testify that they would have certainly
gone to a motel if they had been given the opportunity. There
is no evidence of any benefit they derived by remaining at the
facility and refusing to get a motel room.
I also find Fuller’s testimony to be unworthy of belief based
upon the three memos that are alleged to have been added to
Lampe’s personnel file contemporaneous with attendance in-
fractions. While Fuller contends that he discussed each infrac­
tion with Lampe, Lampe denied he was ever counseled about
problems with attendance. The memos are suspect as they
contain more conclusionary language than factual documenta­
tion of problems.23
Thus, I must conclude that all of the other disciplinary ac­
tions alleged to have been given to Lampe are raised only as an
attempt to hide the true unlawful motive for Lampe’s discharge.
(2) Saylor’s alleged prior discipline
Respondent asserts that Saylor’s discharge is based not only
upon his driving infractions on March 12, but also upon his two
prior incidents of insubordination. Saylor does not deny that he
refused to drive the loaner truck on February 25. Respondent
submits a written memo to the file that is alleged to document
this incident. While the memo documents that Saylor was told
this kind of behavior could not continue and he should make
the run in whatever truck he is expected to take, there is no
indication that any kind of discipline was administered. Say-
lor’s second alleged act of insubordination was his failure to get
a motel room on January 22, when he and Lampe were delayed
at the Diamond Shamrock facility. As indicated in the discus­
sion above, I credit the testimony of Saylor and Lampe and find
Fuller’s testimony to be unworthy of belief.
f. The pretextual nature of the discharges
In summary, I find the prior discipline alleged to have been
given to both Lampe and Saylor is only an attempt to further
justify Respondent’s precipitous discharge of Lampe and Say-
lor. The fact that these prior “disciplines” seem so contrived
undercuts Respondent’s reliance upon the March 12 driving
infractions as a basis for discharge. Respondent argues in its
23 Each statement contains added language such as, “This has been a
regular problem . . . .”, “I told Lampe that this could not continue,” and
“This is getting to be a real problem . . . .”
LA GLORIA OIL & GAS CO. 1135
brief that a compressed timeframe renders it impossible to find
that Fuller prepared and backdated the disciplinary memoranda
in order to buttress his discharge recommendation. Respondent
asserts that Fuller did not learn about Fisher’s report until
March 13th and he had to meet with Bill Tyler on March 14 to
review Lampe and Saylor’s files. I am not persuaded by this
argument. As of at least March 10, Fuller knew about the un­
ion meeting and the union’s organizational effort. Respondent
had ample time to begin creating a paper trail of alleged prior
discipline for any of the potential union supporters. The inci­
dents of March 12 simply gave Respondent an opportunity to
target both Saylor and Lampe. The Board has previously stated
that when a respondent’s stated motives for its actions are
found to be false, the circumstances may warrant an inference
that the true motive is an unlawful one that the respondent de-
sires to conceal.24 Inferences of animus and discriminatory
motivation may be warranted under all the circumstances of a
case. Evidence of suspicious timing, false reasons given in
defense, or disparate treatment all support such inferences.25
There were only 14 drivers employed by Respondent at the
time of the Union’s organizing. As of March 10, Fuller knew
that drivers had met with the Union and were interested in the
Union as a means of getting benefits. Saylor had distinguished
himself as an employee who pushed for additional pay and
benefits. Crediting the testimony of Hensarling, Fuller became
angry when just talking about Saylor. It would have taken very
little for Respondent to identify that Saylor was one of the em­
ployees actively involved in the union organizational activity.
Even Respondent’s suspicion that Saylor and Lampe were in­
volved in the campaign would be sufficient to establish the
requisite element of knowledge.26 The pretextual nature of the
discharges is further demonstrated by Respondent’s rush to
remove Saylor and Lampe from their opportunity to further
organize. In Respondent’s rush to terminate Saylor and Lampe,
neither Fuller nor any other management official took the time
or opportunity to find out their version of what happened on
March 12.27 The pretextual nature of Respondent’s defenses
for terminating Lampe and Saylor supports the inference that
their terminations were unlawful.
As discussed above, I find that General Counsel has estab­
lished by a preponderance of the evidence that antiunion senti­
ment was a substantial or motivating factor in the discharge of
Lampe and Saylor. The burden of persuasion then shifts to the
Respondent to prove its affirmative defense that it would have
taken the same action even if the employees had not engaged in
protected activity.28 I am compelled to conclude that Respon­
dent has failed to sustain that burden and to further conclude
that the reasons it has asserted for the discharges are pretextual.
24 Fluor Daniel, Inc., 304 NLRB 970 (1991).
25 Electronic Data Systems Corp., 305 NLRB 219 (1991).
26 New River Industries v. NLRB, 945 F.2d 1290, 1995 (4th Cir.
1991), denying enf. on factual grounds of 299 NLRB 773 (1990).
27 See Service Technology Corp., 196 NLRB No. 160 (1972), and
NLRB v. Big Three Industries, 497 F.2d 43, 50 (5th Cir. 1974), where
the failure to afford the employee a reasonable opportunity to explain
the full circumstances of what occurred is relevant to a finding of
unlawful motive and may be evidence of a discriminatory intent.
28 Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
g. Credibility determinations
In finding that Respondent violated Section 8(a)(1) and (3)
of the Act, I have fully considered the whole record, including
the briefs filed by the General Counsel and Respondent and the
testimonial demeanor of all witnesses. Assessing the credibility
of Fuller, Saylor, Lampe, Watts, and Hensarling is fundamental
in determining whether union animus was the motivating factor
in Lampe and Saylor’s terminations. As I have indicated
above, I have not reached this decision by blankly crediting all
of the General Counsel’s witnesses. Lampe to some extent, and
Saylor to a greater extent, embellished their testimony concern­
ing conversations with Fuller. I am not persuaded that they
drove for over 3 hours on March 12, without any driving infrac­
tions. I credit a portion of their testimony concerning their con­
versation with Fuller about the “rumors” and their testimony
about the nature and severity of alleged prior discipline.
I credit the testimony of Watts and Hensarling who were also
interrogated by Fuller about the “rumors” in the facility. In his
brief, counsel for Respondent points out that each of General
Counsel’s witnesses were a part of the initial in-plant organiz­
ing committee who committed at the What-a-Burger meeting to
assist in the effort to organize the drivers. He opines that since
the outcome of the 8(a)(3) charges will likely determine
whether their efforts were successful, these witnesses have
reason to provide helpful testimony in this matter. Certainly
Lampe and Saylor have a substantial stake in the outcome of
this proceeding. The same is not true of Watts and Hensarling.
Overall, I am persuaded that Watts and Hensarling’s testimony
was candid and truthful and I accept their version of the facts as
a basis for resolving the issue of knowledge of union activity.
The Board has long recognized that the testimony of an em­
ployee against the interest of the employer is considered espe­
cially worthy of belief since it is unlikely that the employee
would engage in fabrication. See Pittsburgh Press Co., 252
NLRB 500 (1982). The fact that I may not believe part of
Lampe and Saylor’s testimony does not of itself invalidate the
remainder of their testimony. The Board and the courts have
found that a judge is not barred from finding elements of truth
and untruths in a witnesses’ testimony.29 As Judge Learned
Hand so eloquently stated, “It is no reason to refuse to accept
everything a witness says, because you don’t believe all of it,
nothing is more common in all kinds of judicial decisions than
to believe some and not all.” See NLRB v. Universal Camera
Corp., 179 F.2d 749, 753 (2d Cir. 1950).
The total record evidence leads me to conclude that Fuller’s
asserted basis for Lampe and Saylor’s discharges is not the true
motive. Despite my credibility findings concerning the testi­
mony of any other witnesses, it is reasonable to believe that
Fuller’s asserted reason for the discharges is the very opposite
of what he stated.30 In making these credibility findings, I have
reviewed the entire record and carefully observed the demeanor
of all the witnesses. I have taken into consideration the appar­
ent interests of the witnesses and the inherent probabilities in
29 United Parcel Service, 333 NLRB 1202 (2001); Champion Pa­
pers, Inc. v. NLRB, 393 F.2d 388, 394 (6th Cir. 1968); and Izzi Truck­
ing Co., 395 F.2d 241, 244 (1st Cir. 1968).
30 NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962).
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
light of other events. Fuller’s testimony concerning the alleged
prior incidents of discipline was unconvincing. While I cannot
credit all of Saylor’s testimony because of his obvious penchant
for exaggeration, I am satisfied that Fuller did not advance a
true version of his conversations with employees or about the
reason for Lampe and Saylor’s discharge.
The overall credible evidence leads me to conclude that Re­
spondent not only tolerated any prior misconduct of Lampe and
Saylor, but also had no consistent practice of disciplining em­
ployees for driving infractions prior to the union organizing.
Once there was organizing among the drivers, Respondent
seized the first opportunity to remove Lampe and Saylor from
their organizing efforts. In order to further bolster its position,
Respondent added in the alleged prior problems with atten­
dance, insubordination, etc. Rather than legitimating its basis
for discharge, the attempt to embellish with prior discipline
supports a finding that all the alleged reasons for discharge
were pretextual.
In applying the foregoing principles to the facts of this case,
I find Respondent’s asserted defense unconvincing. On the
basis of the entire record, I find that Respondent discharged
William Lampe and Floyd Saylor because they assisted the
Union and engaged in concerted activities, and in order to dis­
courage employees from engaging in concerted activities, thus
violating Section 8(a)(3) and (1) of the Act.
h. Whether Respondent is the sole employer of the
bargaining unit employees
At trial, Respondent proposed a stipulation that Respondent
La Gloria is “the joint employer of the drivers, but not limited
to Saylor and Lampe, who are on PSI’s payroll.” General
Counsel declined to enter into the stipulation, citing that al­
though the initial complaint issued 8 months previously, Re­
spondent had previously failed to raise this issue. Counsel for
the General Counsel also relied upon Respondent’s having
entered into a stipulated election agreement as the employer of
the bargaining unit employees. Counsel for Respondent as­
serted that while Respondent entered into the stipulated election
agreement, the bargaining unit was described as “All truck
drivers employed by the Employer on the payroll of PSI at its
Tyler, Texas, facility.”
In its brief, Respondent reasserts that it is a joint employer
with PSI. For additional argument, Respondent points out that
in the original charge, the Union alleged that PSI, La Gloria,
and Crown were joint employers, single employers and alter
egos. General Counsel however, elected to proceed to com­
plaint, alleging Respondent as the sole employer of these em­
ployees. Respondent maintains that joint employer status is
shown by the fact that drivers are told when they are hired that
they are employed by PSI. Respondent also relies upon the fact
that the employment applications and the receipts for the
driver’s manual given to employees bear PSI’s name. Pay-
checks are issued on a PSI bank account and annual W-2 state­
ments are issued by PSI. Counsel also submits that after a deci­
sion was made to terminate Saylor and Lampe, a representative
of PSI called them to let them know that their employment was
terminated.
PSI is an Oklahoma company that provides payroll services
to the Respondent for Respondent’s truckdrivers. The record
reflects that Respondent screens, interviews, and hires the
truckdrivers. General Counsel submits that while drivers may
be told when they are hired that their employer is PSI, the driv­
ers are provided Respondent’s drivers’ manual that contains
only the name of La Gloria Oil & Gas as the employer. Driv­
ers’ pay is determined by the number of actual product deliver­
ies they make and this is documented by drivers’ timecards.
These cards are collected by Fuller and forwarded to PSI. PSI
then prepares the payroll for these drivers, deducting the taxes
and other required withholdings and mails the checks to the
drivers. Respondent determines the work hours and rates of
pay for the drivers. Respondent determines work assignments
and discipline. The overall record reflects that Respondent’s
hiring and employment process provides drivers with minimal
contact with PSI other than the receipt of their paychecks.31
Respondent argues that the fact that La Gloria reimburses
PSI for the costs of the drivers’ compensation (plus insurance
benefits, if such were to be provided), and controls whether a
particular driver will continue to drive La Gloria’s vehicles,
makes this case no different from those in which the Board has
resorted to the joint employer doctrine.32 While Respondent
relies upon Capitol to support its argument, I find the case dis­
tinguishable. In Capitol, an employment agency supplied tem­
porary employees to a user-employer. The Board noted that the
user-employer could effectively fire any or all these temporary
employees by simply requesting the employment agency to
remove them from the user employer’s premises. Although the
two employers did not have common ownership, or common
financial control, the Board further found that the two employ­
ers shared and codetermined essential terms and conditions of
employment. While the user-employer directly supervised the
employees and assigned work, the supplying-employer negoti­
ated the wage rates of the temporary employees supplied to the
user employer.
In order to establish that two otherwise separate entities op­
erate jointly for the purposes of labor relations, there must be a
showing that the two employers share or codetermine those
matters governing the essential terms and conditions of em­
ployment. Riverside Nursing Home, 317 NLRB 881 (1995),
and NLRB v. Browning-Ferris Industries , 691 F.2d 1117 (3d
Cir. 1982). The employers must meaningfully affect matters
relating to the employment relationship such as hiring, firing,
discipline, supervision, and direction. TLI, Inc., 271 NLRB 798
(1984). I do not find that the overall record supports that PSI
shared or in any sense codetermined matters relating to terms
and conditions of employment. I am persuaded that PSI simply
provides a service to Respondent by handling administrative
functions such as payroll. While PSI was not plead as a joint
employer with the Respondent, there appears no basis for Gen­
eral Counsel having done so.
31 Saylor testified that on one occasion he called PSI to register a
verbal grievance. While he was told that someone would get back with
him, he never heard anything further in the matter.
32 Respondent cites Capitol EMI Music, 311 NLRB 997, 998 (1993),
and M. B. Sturgis, 331 NLRB 1298 (2002).
LA GLORIA OIL & GAS CO. 1137
III. REPORT AND RECOMMENDATIONS ON
CHALLENGED BALLOTS
Pursuant to a stipulated election agreement executed by the
Respondent and the Union, and approved by the Regional Di­
rector for Region 16 on November 17, 2000, an election was
conducted on December 15, 2000, in an appropriate unit of the
Respondent’s employees. The unit was described as “All truck
drivers employed by the Employer on the payroll of PSI at its
Tyler, Texas, facility excluding all other employees, including
drivers of any common carriers, guards and supervisors as de-
fined in the Act.” As reflected in the tally of ballots, there were
approximately 14 eligible voters. Of them, 6 votes were cast
for the Union and 6 votes were cast against the Union. Because
the ballots of Floyd Saylor and William Lampe were chal­
lenged, the total number of challenged ballots was determined
to be sufficient to affect the outcome of the election. Accord­
ingly, on June 1, 2001, the Regional Director for Region 16
issued an Order Directing Hearing, Second Order Consolidat­
ing Cases and Notice of Hearing in Cases 16–CA–20461, 16–
CA–20585, and 16–RC–10269. By virtue of the order, the
issue of whether these challenges are to be sustained is included
in this decision.
In general, to be eligible to vote, an employee must have
been employed both on the eligibility date, which in this case
was November 12, 2000, and on the election date, which in this
case, was December 15, 2000. See Plymouth Towing Co., 178
NLRB 651 (1969). Discriminatory personnel actions cannot be
used to make an employee eligible or ineligible to vote in a
Board election. Having found that Respondent’s discharge of
Saylor and Lampe violated Section 8(a)(3) of the Act, supra, it
follows that they should properly be considered as employees at
all relevant times. Accordingly, I find they were each eligible
to vote in the election. I recommend the challenges to their
ballots be overruled and their ballots opened and counted.
CONCLUSIONS OF LAW
1. Respondent, La Gloria Oil and Gas Company, is an em­
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Paper-Allied-Industrial, Chemical & Energy Workers, In­
ternational Union, Local 4-202 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 coer­
cively interrogating its employees concerning their union
activities and the activities of other employees.
4. Respondent violated Section 8(a)(1) of the Act by threat­
ening its employees with termination if they chose a union to
represent them.
5. Respondent violated Section 8(a)(3) and (1) of the Act by
discharging William Lampe and Floyd Saylor, because they
assisted the Union and engaged in protected, concerted activi­
ties.
6. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
It having been found that the Respondent has engaged in cer­
tain unfair labor practices, it is recommended that it be ordered
to cease and desist therefrom, and take certain affirmative ac­
tion designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily discharged
Floyd Saylor and William Lampe, I shall recommend that Re­
spondent offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quarterly
basis from the date of their discharge to the date of proper offer
of reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987). I shall recommend that Respondent be required to ex­
punge from its records all references to its unlawful discharge
of Lampe and Saylor, and inform them in writing that this has
been done, and that these actions will not form the basis of any
future discipline of him.
Regarding the consolidated representation case, it is recom­
mended that the representation case be returned to the Regional
Director, with the direction to open and count the ballots of
eligible employees William Lampe and Floyd Saylor. If the
additional ballots give the Union the majority of the total votes,
it is further recommended that the Union be certified as the
exclusive representative of the bargaining unit employees.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended33
ORDER
The Respondent, La Gloria Oil and Gas Company, Tyler,
Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their union ac­
tivities and the union activities of other employees.
(b) Threatening employees with termination if they choose a
Union to represent them.
(c) Discharging or otherwise disciplining employees because
of their union activities or sympathies.
(d) In any like or related manner interfering with, restraining,
or coercing employee in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec­
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Floyd
Saylor and William Lampe full reinstatement to their former
jobs or, if that job no longer exists, to substantially equivalent
positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(b) Make Floyd Saylor and William Lampe 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 rem­
edy section of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges, and within 3
days thereafter notify the employees in writing that this has
33 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom­
mended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
been done and that the discharges will not be used against them
in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per­
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec­
essary to analyze the amount of backpay due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at its fa­
cility in Tyler, Texas, copies of the attached notice marked
“Appendix.”34 Copies of the notice, on forms provided by the
34 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 Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Regional Director for Region 16, after being signed by the Re­
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed­
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since March 9, 2000.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.