Montag Oil

National Labor Relations Board - Board Decisions

Jul 31, 1984

271 N.L.R.B. 665 (N.L.R.B. 1984)

MONTAG OIL
Montag Oil, Inc. and Steamfitters Union Local No.
235, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL-CIO,
CLC. Case 36-CA-4362
31 July 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 23 January 1984 Administrative Law Judge
Russell L. Stevens issued the attached decision.
The Respondent filed exceptions and a supporting
brief. The General Counsel and the Charging Party
filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,1 and
conclusions only to the extent consistent with this
Decision and Order.
We agree with the judge's finding that the Re-
spondent violated Section 8(a)(1) of the Act by so-
liciting employee Marshall Cayce to file a decertifi-
cation petition with the Board and, after the peti-
tion was filed by Cayce, later threatening him with
discharge if he were to disclose this fact to the
Board. We disagree, however, with the judge's fur-
ther finding that the Respondent's discharge of
Cayce violated Section 8(a)(4) of the Act and, ac-
cordingly, we shall dismiss that portion of the com-
plaint. For the reasons set forth below we shall
also dismiss the 8(a)(5) allegation that the Respond-
ent unlawfully refused to bargain with the Union
claiming to represent a majority of its employees.
The Respondent sells heating oil and services oil
burning furnaces. The most recent of a series of
collective-bargaining agreements with the Union
representing its furnace repairmen expired in Octo-
ber 1982. Although the Union presented a proposal
for a new contract, no negotiations were thereafter
conducted. Cayce was hired as a repairman on 17
January 1983. On 3 February Cayce filed a state-
ment with the Board's office in Portland, Oregon,
indicating that in a work force of three employees
he and Bill Rea did not wish to join the Union and
that he wished to have a decertification election.
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
271 NLRB No. 105
The decertification petition itself was filed on 10
February and amended I week later. Upon receiv-
ing a copy of the petition, Union Business Repre-
sentative William McNicholas contacted the Re-
spondent's three employees and obtained confirma-
tion from Cayce and Rea that they did not wish to
have the Union represent them.
Thereafter on 25 February the Union informed
the Respondent that it no longer claimed to repre-
sent a majority of the unit employees. A Board
agent sent Cayce a withdrawal request form per-
taining to the decertification petition. Cayce signed
the withdrawal request and it was approved by the
Board's office on 8 March. The following day
Cayce was involved in a traffic accident which
damaged Respondent's truck. On 10 March Cayce
was discharged. The reasons given were that cus-
tomer complaints about his work had required too
many "call back" trips to adjust his repairs and that
Cayce had made unauthorized purchases of sup-
plies and tools.
Shortly after his discharge Cayce returned to the
Board office and reported that he had lied by stat-
ing on 3 February that no supervisor had asked
him to file the petition. After informing McNicho-
las and the union attorney about this development,
Cayce signed a union authorization card. Since em-
ployee Ron Parmer had signed a card on 11
March, McNicholas then went to the Respondent
on 15 March, asked that Cayce be reinstated and
on the basis of the two cards reversed the Union's
abandonment of representative status, and request-
ed bargaining on a new contract. The Respondent
refused either to reinstate Cayce or to bargain.
As found by the judge, based on a credibility
resolution in favor of Cayce's testimony over that
of the Respondent's dispatcher Gary Males, the
Respondent violated Section 8(a)(1) by instigating
the filing of the decertification petition by Cayce.
Shortly after Cayce was hired, Males told him that
the Respondent could not make a profit because of
the Union. After admitting the illegality of what he
was about to ask, Males stated that he wanted
Cayce to file a decertification petition because the
Respondent did not want to sign a contract with
the Union. Males further told Cayce that if he did
so he would have a job with the Respondent as
long as he wanted one. Cayce agreed and Males
then gave him the address of the Board's office and
scheduled Cayce's route so that he would be near
the office during his working hours.
Approximately 2 weeks after filing the petition,
Cayce had second thoughts and told Males that he
did not "feel good" about lying to the Board agent
when he stated that no supervisor had asked him to
file the petition. Males replied that Cayce should
665
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not go to the Board about this if he wished to con-
tinue working for the Respondent. Cayce again
told Males that he might go to the Board. This was
at a time after Cayce signed the withdrawal notice
but before it was approved by the Board's Officer
in Charge. Apparently without yet knowing the
status of the petition Males again threatened Cayce
with discharge if he revealed Male's involvement
to the Board. Again based on credibility resolutions
the judge found, correctly in our view, that these
threats of discharge violated Section 8(aXl).
We agree with the judge that the General Coun-
sel presented a prima facie case that Cayce's dis-
charge was violative of Section 8(aX4). The dis-
charge followed within a few days of Cayce's tell-
ing Males for the second time that he planned to
go to the Board, confess that he lied in support of
the petition, and thereby reveal the Respondent's
8(a)(l) violation. On both occasions Males threat-
ened Cayce with discharge if he were to carry out
his intention. Thus under Wright Line2 we infer
that Cayce's stated intention to engage in activity
protected by Section 8(a)(4) was a motivating
factor in the Respondent's decision to discharge
him. The burden of proof thus shifts to the Re-
spondent to show that it would have discharged
Cayce even in the absence of such activity.
Contrary to the judge's conclusion we find that
the very evidence of Cayce's poor work record
cited by the judge fully supports the Respondent's
contention that the discharge was in fact based on
Cayce's work performance. The judge credited
Males' testimony that there were only minor prob-
lems with Cayce's work during the first 3 weeks of
his approximately 1-1/2 months of employment.
Thereafter, however, deficiencies in Cayce's per-
formance began to occur with increasing frequency
and severity. Without any credible contradiction
Males further testified that the approximately 30
callbacks required to satisfy customers for whom
Cayce had performed repairs was excessive during
such a short time period. Rea answered some of
Cayce's callbacks and reported to Males that in his
opinion Cayce did not seem to know what he was
doing. Similarly, employee Parmer told Males that
Cayce's work was so bad that it appeared to be
sabotage. Males began speaking to Cayce about
these minor and later major problems almost from
the beginning of Cayce's employment, and Cayce's
testimony that he only received complaints from
Males after he spoke out about returning to the
Board was discredited. In the absence of any credi-
ble evidence rebutting that relied on by Cayce the
Respondent, we find that the discharge was for
I Wright Line, 251 NLRB 1083 (1980).
cause. In particular we note that the General
Counsel failed to come forward with any evidence
that Cayce was evaluated or disciplined more
harshly than other employees or in any other way
was subjected to disparate treatment. We therefore
find that the Respondent has met its Wright Line
burden and, accordingly, we shall dismiss the
8(a)(4) allegation.
Since Cayce was therefore not an employee
within the meaning of Section 2(3) of the Act at
the time he signed an authorization card following
his discharge, we find that the Union represented
only one of the two remaining employees in the
unit. Because the Union could not claim to repre-
sent a "majority" of the unit, the Respondent was
privileged to withhold recognition on 15 March.
Therefore we shall reverse the judge's refusal-to-
bargain finding which was premised on his conclu-
sion that Cayce remained a statutory employee be-
cause of his status as an 8(a)4) discriminatee. We
shall therefore dismiss the 8(a)(5) allegation.
AMENDED CONCLUSIONS OF LAW
1. Montag Oil, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Steamfitters Union Local No. 235, United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, CLC is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
3. The following employees constitute a unit ap-
propriate for purposes of collective bargaining
within the meaning of the Act:
All furnace repairmen, oil tank installation and
oil burner installation employees of the em-
ployer at its Portland, Oregon facility, exclud-
ing all other employees, office clerical employ-
ees, professional employees, guards and super-
visors as defined in the Act.
4. The Respondent violated Section 8(a)(1) of the
Act by soliciting an employee to initiate a decertifi-
cation proceeding with the Board and threatening
him with discharge if he later went to the Board
and disclosed Respondent's participation in the de-
certification proceeding.
5. The Respondent has not in any other way vio-
lated the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Montag Oil, Inc., Portland, Ore-
gon, its officers, agents, successors, and assigns,
shall
666
MONTAG OIL
1. Cease and desist from
(a) Violating Section 8(a)(1) of the Act by solic-
iting an employee to initiate a decertification pro-
ceeding with the Board and by threatening him
with discharge if he were to go to the Board and
disclose the Respondent's participation in the de-
certification proceeding.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its place of business in Portland,
Oregon, copies of the attached notice marked "Ap-
pendix."3 Copies of the notice, on forms provided
by the Regional Director for Region 36, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
3 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT violate Section 8(a)(1) of the Act
by soliciting employees to initiate a decertification
proceeding with National Labor Relations Board;
or by threatening employees with discharge if they
go to National Labor Relations Board and disclose
our participation in decertification proceedings.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them under
Section 7 of the Act.
MONTAG OIL, INC.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
case was tried in Portland, Oregon, on October 13,
1983.1 The complaint, which was issued May 13, is based
on a charge filed March 18 and an amended charge filed
May 2 by Steamfitters Union Local No. 235, United As-
sociation of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the United States and
Canada, AFL-CIO, CLC (the Union). The complaint al-
leges that Montag Oil, Inc. (Respondent) violated Sec-
tion 8(a)(4) and (5) and Section 8 (d) of the National
Labor Relations Act (the Act).
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel, the Charging Party, and
Respondent.
On the entire record, and from my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and at all times material herein has
been, an Oregon corporation with a place of business in
Portland, Oregon, where it is engaged in the retail sale
of heating oil and in the repair of oil furnaces. During
the past year Respondent, in the course and conduct of
its business, derived gross revenues in excess of S500,000,
and purchased and received at its Portland facility goods
and materials valued in excess of $50,000 which originat-
ed at points outside Oregon.
I find that Respondent is, and at all times material
herein has been, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Steamfitters Union Local No. 235, United Association
of Journeyman and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada,
AFL-CIO, CLC is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background 2
Respondent's2 business primarily consists of two oper-
ations-one is the sale and delivery of oil and related
products, and one is the service and repair of oil burning
furnaces. Much of the business is conducted with resi-
dential customers. Respondent owns and maintains a fleet
of trucks used in daily deliveries and services. The trucks
All dates hereinafter are within 1983, unless otherwise stated
2 This background summary is based on stipulations of counsel, and
oncredited testimony and evidence not in dispute
667
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are operated by Respondent's employees, and are based
at Respondent's place of business in Portland.
Respondent and the Union have had a bargaining rela-
tionship since approximately 1959, their last contract, a
3-year one, having expired in October 1982. The unit
consists of three employees-Marshall Cayce, Ron
Parmer, and William Rea, all of whom are furnace re-
pairmen. About the time the 1979-1982 contract expired,
the Union presented to Respondent a proposed new con-
tract, which was a pattern contract for the area. Re-
spondent declined to sign the contract that was offered.
Thereafter, Respondent did not engage in individual ne-
gotiations with the Union for a new contract.
Cayce filed an application for employment with Re-
spondent on January 17, and subsequently was inter-
viewed by Gary Males, who is Respondent's personnel
and truck dispatcher, and by Virginia and Nancy
Montag, Respondent's president and vice president, re-
spectively. 3 He was hired after the interview. Cayce had
training and had worked as a mechanic in the field of
heating and air conditioning prior to his employment by
Respondent, and was given no special training or instruc-
tion after he was hired by Respondent. He was assigned
by Respondent to the job of furnace repair, and was in-
structed by Males that he could purchase supplies and
tools needed for jobs he was sent to, but only after first
receiving authorization by telephone, with instructions
concerning the places where purchases could be made.
His jobs principally were in residential areas of Portland,
to which he was dispatched in person from the office
each morning, or by truck radio while he was away
from the office.
On February 3 Cayce visited the office of the National
Labor Relations Board (NLRB or the Board) in Port-
land, and filed the following statement:
To whom it may concern. I work for Montag Oil
Inc. in Portland and do not wish to join the Union.
At this time there is no union contract between the
Company and the Union. There are only three serv-
ice men at Montag Oil. Bill and myself do not wish
to join the Union. I am requesting a vote to see if
we can go non union.
Yours truly
/s/ Marshall C. Cayce
Montag Oil
528 S.E. Holgate
Portland, Oregon 97202
234-4301
A formal decertification petition was filed by Cayce with
the Board on its standard form on February 10. The peti-
tion was amended February 18. A copy of the petition
was received by William McNicholas, one of the Union's
business representatives, about February 10. McNicholas
got in touch with Cayce, and asked him to join the
Union and withdraw the decertification petition, but
Cayce declined to do so. McNicholas asked Cayce if he
had been requested by anyone in Respondent's manage-
3 The supervisory status of Males and the two Montags is admitted by
Respondent.
ment to file the decertification petition, and Cayce re-
plied no. Neither Cayce nor anyone else talked with Rea
or Parmer about the petition prior to or at the time it
was filed, and Rea first learned of it when he saw a copy
of it on Respondent's bulletin board. Parmer first learned
of the petition approximately February 20, when McNi-
cholas told him it had been filed.
After McNicholas talked with Cayce on February 10
or thereabout, he talked with Rea and Parmer concern-
ing their desire for union representation, or lack thereof.
Rea spent some time thinking about the matter, and on
February 24 told McNicholas that he did not want the
Union to represent him. The record is not conclusive as
to whether or not Parmer indicated to McNicholas his
desire for union representation, but on March 11 Parmer
signed a statement that he authorized the Union to be his
collective-bargaining representative.
On February 25, after he had talked with Cayce, Rea,
and Parmer, McNicholas talked with the Union's attor-
ney, who wrote a letter to Respondent and stated that
"the Union does not claim to represent a majority of em-
ployees in the unit."
Approximately on February 25 Cayce talked with a
Board agent and later that day the agent sent to Cayce a
withdrawal request form relating to the decertification
petition. On March 2 Cayce signed the withdrawal re-
quest form, and the request was approved by a Board
representative on March 8.
On March 9 Cayce was involved in an accident that
resulted in damage to Respondent's truck, and the truck
of a third party. Cayce reported the accident to Males. 4
On March 10 Males discharged Cayce in the morning,
as the latter was preparing to go to work. Reasons given
for the discharge were too many "call backs,"5 and un-
authorized purchases of supplies and tools. Cayce went
to the Board to report that he had lied when he filed the
decertification petition and said Respondent's manage-
ment had nothing to do with the petition, and a Board
agent referred him to the Union. Cayce reported the
same thing to McNicholas, and the two of them talked
with the Union's attorney. During the talk with the at-
torney, Cayce signed a document stating, "I hereby au-
thorize Steamfitters Union, Local No. 235 to represent
me in collective bargaining with my employer."
On March 15 McNicholas and another union repre-
sentative met with Males and the two Montags, asked
that Cayce be reinstated in his job effective March 10,
and asked that Respondent sign a collective-bargaining
agreement. Respondent declined to accede to the Union's
requests, and there has been no subsequent bargaining or
negotiating between Respondent and the Union. During
the meeting McNicholas reversed his earlier abandon-
ment of representative status for Respondent's employ-
4 Cayce and Males gave contradictory versions of the accident and the
damage. Cayce's version appeared strained and unlikely, and is given no
credence. However, the details of the incident are irrelevant, and do not
control any issue herein.
5 Callbacks are repeat calls on customers necessitated by improper or
inadequate adjustments or repairs made by a serviceman on his original
response to a customer complaint. Callbacks are common in Respondent's
business.
668
MONTAG OIL
ees, in view of his having obtained a majority status in
the unit.
B. Discussion
1. Cayce's work performance
The fact that Cayce had defects as an employee clear-
ly is shown by the record. Those defects are apparent
from the date of Cayce's application.
In his application, Cayce failed to state his educational
background properly, and he listed his former employers
in a manner different from his testimony. Some of his
testimony relative to his past work was confusing, doubt-
ful in part, and unreliable.
Males testified relative to a large number of work mis-
takes and inadequacies attributable to Cayce, and further
stated that Cayce had made unauthorized purchases of
supplies and tools. Males contended that Cayce did not
appear to know what he was doing on the job. Males
stated that Cayce's work appeared satisfactory at first,
but that as time passed, it was clear that he was not
knowledgeable about his job, contrary to his claim to
proficiency. Males said he frequently talked with Cayce
concerning the latter's unsatisfactory work, both specifi-
cally and generally, commencing a week or so after
Cayce was hired. Males said he discussed Cayce's poor
work performance with the two Montags, and that the
three of them decided to discharge Cayce because of
poor work, unauthorized purchases, and the accident of
March 9.
Cayce denied most of Males' testimony concerning un-
authorized purchases and poor work, and counseling by
Males, and gave excuses for some of the specific in-
stances discussed by Males.
Rea testified that he had to answer callbacks on
Cayce's work on several occasions in the middle or latter
part of February, and he described in detail Cayce's im-
proper work on two occasions. Rea said that, in his opin-
ion, Cayce did not seem to know what he was doing.
Parmer testified that, on two occasions, he was as-
signed callback work on Cayce's jobs, and that Cayce's
work was so bad that it appeared to be sabotage. Parmer
stated that, in his opinion, Cayce did not know what he
was doing on the job.
Rea and Parmer were very credible witnesses, and
clearly Parmer had no reason to testify inaccurately
since he already had asked that the Union represent him.
Males was a credible witness on this subject, albeit he
was not credible in all his testimony. Cayce was a singu-
larly unimpressive witness. He appeared to be confused,
defensive, and unreliable. His rebuttal of the testimony
given by Males, Rea, and Parmer relative to his work
was not convincing. His testimony often was self-contra-
dictory and uncertain.
It is found that Cayce was not an entirely satisfactory
employee, and that he was not completely truthful at the
time he was hired. It is noted that Cayce worked for Re-
spondent less than 2 months. However, this finding does
not settle the matter. The basic question is whether or
not Cayce was discharged because of his poor work per-
formance or for an unlawful reason.
2. The decertification petition
Cayce testified that, both at the time he was inter-
viewed for hire and a week or so later, he talked with
Males about the Union and the cost to join, and Cayce
said he was not sure, but he believed the cost to join was
approximately $1500. Cayce said he did not care about
the Union one way or another, but would join if he had
to. Cayce testified that Males told him during their con-
versation approximately in late January (a week or so
after Cayce was hired by Respondent) that Respondent
could not make a profit because of the Union, and:
But, anyhow, he then told me what he was going to
talk to me about was basically, you know, illegal.
He wanted me to file for a decertification with the
N.L.R.B., because he did not want to sign a con-
tract with the union, and he told me if I'd do this
for him that I'd have a job for Montag so long as I
wanted one. So, I told him I'd do it.
The following day, Cayce testified, Males gave him the
address for the NLRB, asked that Cayce go there "as
quickly as possible," and made arrangements for a work
assignment that would afford Cayce an opportunity to
go to the NLRB. The arrangements were made the fol-
lowing day, Cayce said, and he filed the decertification
petition. Cayce testified that when he filed the petition,
he was asked several times if any supervisor requested
that he file the petition, and each time he replied no.
Cayce further testified that after he filed the petition he
told Males about it and soon thereafter was off work a
week to get married. After he returned to work he was
called on the telephone by McNicholas, who wanted to
know why he had not joined the Union. Cayce replied
that the dues of $1500 were too high, and McNicholas
said that figure was wrong; the dues were $250. Cayce
still refused to join the Union. The following day Cayce
told Males about his conversation with McNicholas. Ap-
proximately a week after his return to work, Cayce told
Males that he "did not feel good . . . about lying to the
NLRB," and Males replied, "If I wished to continue
work not to go to the NLRB . . . and not to worry
about it and that I'd get over it." Cayce did not pursue
the matter. Until that time there had been no complaints
about his work, but thereafter, commencing the day after
he talked with Males, he began receiving complaints
about his work from Males. Cayce credibly testified that
later he again told Males he was going to NLRB to
straighten things out, and that Males again threatened
him with discharge if he did so. When he was fired,
nothing was said about the truck accident, although
Males did talk about work complaints and unauthorized
purchases. Just after the discharge, Males told Cayce,
"Now you can go to the NLRB."
Males categorically denied Cayce's testimony concern-
ing the decertification petition, and intimated that
Cayce's objection to the Union centered on his belief
that the dues were too high, and that he would have dif-
ficulty paying them.
Cayce's testimony on this point is inconsistent and
somewhat confusing. His recall of dates and events was
669
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incomplete and, at times, of doubtful validity. However,
his testimony that Males asked him to file a decertifica-
tion petition and later threatened to discharge him if he
went to NLRB to straighten the matter out is credited.
Males' denial that he ever said anything to Cayce about
a decertification petition was not convincing. A question
is presented in that, if Males wanted to keep Cayce from
going to NLRB or from withdrawing his petition, it
hardly seems that he would immediately start to harass
Cayce, as the latter testified. It seems likely that Males'
complaints about Cayce's work were justified, as dis-
cussed above. Although the record is not entirely clear,
it appears that Cayce withdrew the petition, then talked
with Males and merely told him he was not content with
having lied to NLRB, without telling Males that the pe-
tition was withdrawn. It is not clear as to when, or how,
Males learned of the withdrawal, but it seems apparent
that he did learn of it. It is further noted that both Rea
and Parmer testified that Cayce said nothing to them
about a decertification petition prior to its having been
filed. It seems unlikely that Cayce would have filed the
petition without consulting the other two unit employ-
ees, unless he was blindly following Males' request, de-
pending on Males to get the support of others.
Males asked Cayce to file the decertification petition,
and assisted him in filing it. Thereafter, Males twice
threatened Cayce with discharge if he went to NLRB.
Such solicitation is a violation of the Act. 8 Such threats
violated the Act, since they sought to perpetuate an ille-
gal status created by Respondent. Cayce was protected
in his proposed action to set straight his earlier improper
action.7 Cayce was not a completely satisfactory em-
ployee, but Respondent had put up with him for some
time, without threatening to fire him for poor work per-
formance. Prima facie, Cayce's discharge was based on
his planning to go to NLRB in the face of Males' threat
of discharge if he did so. It was Respondent's burden to
establish that Cayce's discharge was based on poor work
performance, or some other lawful factor, but that
burden was not met.8 Although Cayce was a poor em-
ployee, Respondent did not show that he was fired,
solely or principally, for that reason. So far as the record
shows, Cayce still would be employed by Respondent,
had not the matter of the decertification petition arisen.
Cayce's discharge was a violation of the Act. General
Services, 229 NLRB 940 (1977); General Nutrition Center,
221 NLRB 850 (1975).
So far as the Union is concerned, Cayce, who still is
an employee under the Act since he was unlawfully dis-
charged, and Parmer constitute a unit majority. Both
have signed union authorization statements. It is incum-
bent on Respondent to bargain with the Union, but it has
failed on request to do so. When McNicholas met with
Males and the Montags on March 15, McNicholas stated
6 Rockland Lake Manor, 263 NL.RB 1062 (1982); Campo Slacks, 250
NLRB 420 (1980).
' Shirt Shed. Inc., 252 NLRB 292 (1980); Bill Johnson's Restaurants, 249
NLRB 155 (1980).
8 The reasoning of Wright Line, 251 NLRB 1083 (1980), which in-
volved an 8(a)(3) discharge, is applicable to the 8(a)(4) situation involved
herein. Respondent here argues that Cayce was discharged because of his
poor work performance.
that Respondent had violated the Act by asking Cayce
to sign a decertification petition, claimed representation
rights, asked for negotiations, and asked that Cayce be
reinstated. Respondent did not deny the Union's majority
status, and merely stated that Respondent could not
afford to sign a contract with the Union. As noted
above, Respondent refused to to reinstate Cayce, and has
failed and refused to bargain as requested. That failure
and refusal to bargain constitute violations of Section
8(a)(5) and (1) of the Act, as alleged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
Montag Oil, Inc. is, and at all times material herein
has been, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Steamfitters Union Local No. 235, United Associa-
tion of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada,
AFL-CIO, CLC is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
3. The following employees constitute a unit appropri-
ate for purposes of collective bargaining within the
meaning of the Act:
All furnace repairmen, oil tank installation and oil
burner installation employees of the employer at its
Portland, Oregon facility, excluding all other em-
ployees, office clerical employees, professional em-
ployees, guards and supervisors as defined in the
Act.
4. The Union is the exclusive collective-bargaining
representative of Respondent's employees in the unit de-
scribed above for the purpose of collective bargaining
with regard to wages, hours, and other terms and condi-
tions of employment.
5. By failing and refusing to meet at reasonable times
and bargain on request of the Union on and after March
15, 1983, Respondent violated Section 8(a)(5) and (1) of
the Act.
6. Respondent violated Section 8(a)(l) of the Act by
soliciting an employee to initiate a decertification pro-
ceeding with NLRB; and by threatening an employee
with discharge if the employee went to NLRB and dis-
closed Respondent's participation in decertification pro-
ceedings in Case 36-RD-923.
7. Respondent violated Section 8(a)(4) and (1) of the
Act by discharging employee Marshall Cayce.
670
MONTAG OIL
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I will recommend that Respondent be ordered
to cease and desist therefrom, and to take certain affirma-
tive action designed to effectuate the policies of the Act.
It is recommended that Respondent be ordered to
offer immediate and full reinstatement of Marshall Cayce
to his former job or, if that job no longer exists, to a sub-
stantially equivalent job, without loss of seniority or
other rights or privileges, and make him whole for any
loss of earnings he may have suffered, with interest
thereon to be computed in the manner prescribed in F.
W Woolworth Co., 90 NLRB 289 (1950), plus interest as
set forth in Isis Plumbing Co., 138 NLRB 716 (1962), and
Florida Steel Corp., 231 NLRB 651 (1977).
[Recommended Order omitted from publication]
671