Mountaineer Petroleum

National Labor Relations Board - Board Decisions

Feb 25, 1991

301 N.L.R.B. 801 (N.L.R.B. 1991)

801
301 NLRB No. 121
MOUNTAINEER PETROLEUM
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established practice 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.
In summarizing his 8(a)(3) findings in the final paragraph of sec. III,D,4,b,
of his decision, the judge inadvertently fails to include the name of long-haul
driver James Schoolcraft among the employees whose layoff in April 1988
violated Sec. 8(a)(3) of the Act. (Schoolcraft’s name is correctly included in
the remedy, Order, and notice.) In the seventh paragraph of the same section
of the decision, the judge inadvertently states that the Respondent has under-
gone two financial reorganizations since 1976, rather than since 1986. In the
penultimate paragraph of sec. III,F, the judge also inadvertently states the Re-
spondent’s representation of its net worth to be minus $7000, rather than
minus $7 million. These errors do not affect our decision.
2 The General Counsel has requested that the Board clarify the portion of
the judge’s recommended Order relating to the Respondent’s obligations for
backpay. We find nothing in the recommended Order suggesting, as the Gen-
eral Counsel contends, that the Respondent’s backpay liability is tolled by
placement of the names of discriminatees on a preferential hiring list. Rather,
the Order provides that backpay accrues ‘‘from the date of termination to the
date the discriminatee either secures equivalent employment or the Respondent
makes an offer of reinstatement.’’ We adopt the recommended Order.
3 See, e.g., Cannon Industries, 291 NLRB 632, 637 (1988) (employer ‘‘not
going to let those boys have any union in the company’’); Dorothy Shamrock
Coal Co., 279 NLRB 1298, 1310 (1986), enfd. 833 F.2d 1263, 1265–1268 (7th
Cir. 1987) (employer was ‘‘not union, it never had been, and never would
be’’); Palby Lingerie, 252 NLRB 176, 180 (1980) (‘‘not going to negotiate
with the union’’); Westinghouse Electric Corp., 240 NLRB 905, 916 (1979),
enfd. 612 F.2d 1072 (8th Cir. 1979) (would ‘‘not tolerate’’ a union at the
plant); M.B.D. Co., 193 NLRB 494, 501 (1971) (employer would ‘‘never sign
a contract’’).
4 In Granite City Journal, 262 NLRB 1153 (1982), and Magnolia Manor
Nursing Home, 260 NLRB 377 (1982), the Board found violations of Sec.
8(a)(1) on the basis of arguably similar statements, but we do not find those
cases controlling here. In Granite City, the employer’s publisher, in the course
of ‘‘an antiunion diatribe’’ told an employee not only that he would not ‘‘per-
mit’’ a union to ‘‘tell him how to run’’ his newspaper, but also that he would
‘‘not permit a union to organize the newspaper.’’ 262 NLRB at 1155. In Mag-
nolia Manor, the employer told employees that the union ‘‘was not going to
tell him what to pay employees or how he should run the nursing home,’’ at
a time when he was unlawfully ignoring his obligation, as a successor em-
ployer, to recognize and bargain with the union. 260 NLRB at 384.
Member Devaney is satisfied that the judge concluded that Hinkle said to
the employees that ‘‘he was not going to have a third party running his com-
pany’’ and, notwithstanding the unlawful interrogation involved in that con-
versation, Member Devaney does not think the credited testimony established
that the Respondent threatened the futility of union representation. Accord-
ingly, he joins in the dismissal of this allegation.
J. D. Hinkle & Sons, Inc. t/a Mountaineer Petro-
leum and Teamsters, Chauffeurs and Helpers
Local Union No. 175 a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO. Case
6–CA–20959
February 25, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 7, 1989, Administrative Law Judge Donald
R. Holley issued the attached decision. The General
Counsel and the Respondent filed exceptions and sup-
porting briefs, and the General Counsel filed an an-
swering brief.
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
1. The judge credited testimony of employees Ran-
dall Alderman and James Warner that, in speaking
with them about the Union’s organizational campaign,
the Respondent’s president, James Hinkle, told them
either that he was ‘‘not going to have a third party
running [his] company’’ (Alderman’s testimony) or
that he was not ‘‘going to have a third party come in’’
(Warner’s testimony). The judge did not credit Alder-
man’s testimony that during this conversation Hinkle
also said he would not negotiate a contract with the
Union and that he would shut the Company down if
it ‘‘went union.’’ The judge found a violation on the
basis of Hinkle’s remark about either the Union’s
‘‘running’’ his company or its ‘‘coming in.’’ In so
doing, the judge in essence relied on Board cases find-
ing it a violation of Section 8(a)(1) of the Act for an
employer to state in effect that it will not accept or
deal with a union even if the employees select it as
their representative because such a statement represents
a threat that the employees’ efforts to seek union rep-
resentation are necessarily futile.3
We do not find that Hinkle’s statement, which may
not have gone beyond a statement that Hinkle would
not permit a union to run his company, rises to the
level of a threat that the employer will not recognize
a union if the employees choose one. Since the state-
ment was made in the course of a conversation that—
because of the judge’s discrediting much of the rest of
Alderman’s testimony—was devoid of any immediate
context that might have given it a more threatening
character, we find that the General Counsel has not
proved, by a preponderance of evidence, that Hinkle
made any comment exceeding the bounds of a lawful
expression of opinion within the scope of Section 8(c)
of the Act. We therefore conclude that this statement
did not violate Section 8(a)(1) of the Act, and we
amend the recommended Order accordingly.4
2. The judge rejected the General Counsel’s request
for an order directing the Respondent to reinstitute
long-haul operations because of the Respondent’s
showing that reinstitution of operations would endan-
ger its continued viability. Instead, the judge’s rec-
ommended Order gives the Respondent the option of
either reinstituting operations or offering reinstatement
to each of the discriminatees to any position in its ex-
isting operations which he is capable of filling and, in
the event no such position exists, placing that
discriminatee on a preferential hiring list for any future
vacancy he is capable of filling. After the judge’s deci-
sion issued, the Board held in Lear Siegler, Inc., 295
802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Member Devaney does not agree that the Respondent may satisfy its rein-
statement obligation to the discriminatees by offering them reinstatement to
positions that are less than substantially equivalent to their former jobs. The
Board has traditionally ordered that, where the former jobs of discriminatees
are no longer available, the employer must offer reinstatement to substantially
equivalent positions. In Member Devaney’s view, the circumstances of this
case, including the Respondent’s cessation of its long-haul trucking operations
and the Board’s decision not to require restoration of those operations, with
which Member Devaney agrees, do not warrant a deviation from the Board’s
well-established remedial standard.
NLRB 857 (1989), that it will decline to order re-
institution of operations not only in situations where
that remedy threatens a respondent’s continued viabil-
ity, but also where the respondent has shown that res-
toration of the status quo ante would be unduly bur-
densome. We agree with the judge that a restoration
requirement is inappropriate, but we do so because that
requirement would be unduly burdensome in the cir-
cumstances of this case. We do modify that portion of
the judge’s recommended remedy and Order to reflect
the option that the Respondent may offer reinstatement
to each discriminatee in a substantially equivalent posi-
tion in its existing operation, or if no substantial equiv-
alent exists, to those positions that do exist, in de-
scending order of equivalence (i.e., the job next in line
in equivalence to the position from which the
discriminatee was terminated first; then the job next
approximating equivalence, etc.). In the event that the
Respondent complies with the Order by offering less
than substantially equivalent employment to any
discriminatee, the Respondent shall be directed to
place that discriminatee on a preferential promotion list
for any future vacancy in jobs substantially equivalent
to the job from which he was unlawfully terminated.5
We do not, however, intend by this Order to cut off
the backpay period for any employee who has obtained
employment elsewhere that is not substantially equiva-
lent if that employee has not received a reinstatement
offer from the Respondent consistent with this Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, J. D. Hinkle & Sons, Inc.
t/a Mountaineer Petroleum, Buckhannon, West Vir-
ginia, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Delete paragraph 1(a).
2. Substitute the following for paragraph 2(b).
‘‘(b) Offer Randall Alderman, James Warner, James
Jenkins, George Winemiller, James Schoolcraft, Henry
Frame, and Joseph Snyder reinstatement by either (1)
reinstituting its long-haul operations and offering rein-
statement to each of the discriminatees to his former
position or, if such position no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or other rights and privileges; or (2) offering
reinstatement to each discriminatee to a substantially
equivalent position in its existing operation or, if no
substantial equivalent exists, to those positions that do
exist in descending order of equivalence, without prej-
udice to his seniority or other rights and privileges;
and in the event the Respondent complies with this
Order by offering less than substantially equivalent
employment to any discriminatee, place that
discriminatee on a preferential promotion list for any
future vacancy in jobs substantially equivalent to the
job from which he was unlawfully terminated.’’
3. Substitute the following for paragraph 2(e).
‘‘(e) Post at its Buckhannon, Sutton, and White Sul-
phur Springs, West Virginia facilities copies of the at-
tached notice marked ‘Appendix’17 and mail a copy of
this notice to the last known address of all employees
employed April 23, 1988, to May 13, 1988, in the ap-
propriate bargaining units represented by Teamsters,
Chauffeurs, and Helpers Local Union No. 175, Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO. Copies
of the notice, on forms provided by the Regional Di-
rector for Region 6, after being signed by the Re-
spondent’s authorized representative, shall be mailed
and posted by the Respondent immediately on receipt
and be maintained for 60 consecutive days thereafter
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material.’’
4. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate employees concerning
their union activities and sentiments.
WE WILL NOT interrogate employees concerning
how they voted in a Board election.
803MOUNTAINEER PETROLEUM
1 All dates are 1988 unless otherwise indicated.
2 General Counsel’s motion to correct transcript, which is unopposed, is
granted.
WE WILL NOT threaten employees with loss of em-
ployment if they vote the Union in.
WE WILL NOT tell known union adherents they are
being transferred to night shift because such action
might cause them to quit.
WE WILL NOT tell employees they received fewer
loads because they are union.
WE WILL NOT threaten to close our long-haul oper-
ations if our employees chose to be represented by the
Union.
WE WILL NOT discourage membership in, or activi-
ties on behalf of, Teamsters, Chauffeurs and Helpers
Local Union No. 175, International Brotherhood of
Teamsters, Warehousemen and Helpers of America,
AFL–CIO, or any other labor organization, by reducing
the hours of work of employees through subcon-
tracting, transferring employees to the night shift, ter-
minating employees and closing business operations, or
otherwise discriminating against employees in any
manner in respect to their tenure of employment or any
term or condition of employment in violation of Sec-
tion 8(a)(1) and (3) of the Act.
WE WILL NOT fail and refuse to give the Union ap-
propriate advance notice of our intention to subcontract
long-haul unit work and fail to afford the Union an op-
portunity to bargain over decisions to subcontract unit
work and the effect of such decisions on employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL make whole Randall Alderman, James
Warner, James Jenkins, and George Winemiller for
losses they sustained when their hours of work were
reduced through subcontracting during the period April
11, 1988, to May 13, 1988, with backpay and interest.
WE WILL offer Randall Alderman, James Warner,
James Jenkins, George Winemiller, James Schoolcraft,
Henry Frame, and Joseph Snyder reinstatement by ei-
ther (1) reinstituting our long-haul operations and of-
fering reinstatement to each of the discriminatees to his
former position or, if such position no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or other rights and privileges previously
enjoyed; or (2) offering reinstatement to each
discriminatee in a substantially equivalent position in
our existing operation or, if no substantial equivalent
exists, to those positions that do exist in descending
order of equivalence, giving preference to the
discriminatees in order of seniority; and in the event
of the unavailability of jobs sufficient to permit imme-
diate reinstatement of all the discriminatees, WE WILL
place those for whom jobs are not now available on
a preferential hiring list for any further vacancies
which may occur in jobs the said discriminatees are
capable of filling, and making such discriminatees
whole for losses suffered as a result of the discrimina-
tion against them with backpay and interest. In the
event that we are required to offer less than substan-
tially equivalent employment to any discriminatee, WE
WILL place that discriminatee on a preferential pro-
motion list for any future vacancy in jobs substantially
equivalent to the job from which the discriminatee was
unlawfully terminated.
WE WILL notify Teamsters, Chauffeurs and Helpers
Local Union No. 175, when legally required, of any
decisions to subcontract bargaining unit work and af-
ford it, on request, adequate opportunity to bargain
concerning such decisions and their effect on bar-
gaining unit employees. The appropriate bargaining
units are:
All full-time and regular part-time long-haul driv-
ers employed by the Employer at its Buckhannon,
Sutton, and White Sulphur Springs, West Vir-
ginia, facilities; excluding office clerical employ-
ees and guards, professional employees and super-
visors as defined in the Act.
All full-time and regular part-time short-haul driv-
ers and mechanics employed by the Employer at
its Buckhannon, Sutton, and White Sulphur
Springs, West Virginia, facilities; excluding office
clerical employees and guards, professional em-
ployees and supervisors as defined in the Act.
J. D. HINKLE & SONS, INC. T/A MOUN-
TAINEER PETROLEUM
Charles H. Saul, Esq. and Robin F. Wiegand, Esq., for the
General Counsel.
Fred F. Holroyd, Esq. (Holroyd & Yost), of Charleston, West
Virginia, for the Respondent.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge. On a
charge filed by the above-named Union on May 9, 1988,1 the
Acting Regional Director for Region 6 of the National Labor
Relations Board issued a complaint on June 23 which alleges
that J. D. Hinkle & Sons, Inc. t/a Mountaineer Petroleum
(the Respondent) engaged in stated conduct which violates
Section 8(a)(1), (3), and (5) of the National Labor Relations
Act. Respondent filed timely answer denying that it had en-
gaged in the unfair labor practices alleged in the complaint.
The case was heard in Buckhannon, West Virginia, on
September 6 and 7, 1988. All parties appeared and were af-
forded full opportunity to participate. On the entire record,2
including consideration of the posthearing briefs filed by the
parties, and from my observation of the demeanor of the wit-
nesses who appeared to give testimony, I make the following
804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 They are Randall Alderman, James Warner, Donnie Nottingham, George
Winemiller, James Jenkins, Kennith Kelley, and James Schoolcraft.
4 It is admitted, and I find, that the above-described bargaining units con-
stitute appropriate units for the purpose of collective bargaining within the
meaning of Sec. 9(b) of the Act.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a West Virginia corporation, with its principal
office and place of business located in Buckhannon, West
Virginia, is engaged in the nonretail transportation and sale
of petroleum products. During the 12-month period ending
April 30, 1988, it purchased and received at its West Vir-
ginia facilities products, goods, and materials valued in ex-
cess of $50,000 from points outside the State of West Vir-
ginia. It is admitted, and I find, that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a family corporation owned by members of
the Hinkle family. James Douglas Hinkle III, is the president
of the corporation and his brother, John, is vice president.
The business consists of two divisions—(1) Mountaineer Pe-
troleum, a wholesale gasoline and middle distillate reseller;
and (2) West Virginia Split Rail, which manufactures and
sells split-rail fence, stockade fence, and landscape ties.
Mountaineer Petroleum has operating plants in three West
Virginia cities, i.e., Buckhannon, Sutton, and White Sulphur
Springs. Such plants sell and deliver gasoline, diesel fuel,
and home heating oil to customers in their local areas. Until
mid-May 1988, the petroleum products were obtained from
various oil companies at various locations and were trans-
ported to the operating plants and to certain customers by so-
called long-haul drivers who drove tractors and tank type
trailers. Straight trucks were used by Respondent to accom-
plish local deliveries.
In the summer of 1986, Respondent’s petroleum division
experienced financial difficulties which compelled it to ini-
tiate a financial reorganization outside of bankruptcy. James
Hinkle III (Hinkle), testified that Respondent’s primary credi-
tors at the time were state and Federal taxing authorities,
which were owed $5.5 million and Chrysler Capital, which
as owed some $4 million. Hinkle testified Respondent was
compelled to reorganize a second time in the fall of 1987 be-
cause insufficient funds precluded it from continuing to fol-
low the 1986 plan.
When the 1987 reorganization occurred, Respondent suc-
cessfully caused its long-haul drivers to take a wage cut
which dropped them from 22 cents per mile to 18 cents per
mile and eliminated drop costs and waiting and/or delay time
moneys. At or about the same time, Respondent contracted
out all its Maryland business to enable it to bring a $100,000
bond deposit back into the business, and it contracted out
transportation of product from terminals located in Fairfax
and Roanoke, Virginia. Additionally, Hinkle testified that,
during the fall of 1987, Respondent contracted out all the
hauling of products manufactured by the split-rail division,
and it conducted negotiations with Leaseway Transportation
concerning feasibility of having that firm haul petroleum
products out of terminals located in Charleston (West Vir-
ginia), Catlettsburg (Kentucky), Hunnington (West Virginia),
Congo (West Virginia), Neville Island (Pennsylvania), and
Marietta (Ohio).
Hinkle testified that he met with the long-haul drivers in
late November 1987, and informed drivers that some drop
charges and/or delay charges would be reinstated in Decem-
ber. He further indicated another meeting was held with
long-haul drivers in January 1988, and additional drop
charges and/or delay charges were reinstituted at that time.
Hinkle testified without contradiction that the drivers were
informed in January that when split-rail customers started
sending in their remuneration in late March or early April,
he would look at increasing their pay; that in the meantime,
they would be attempting to come up with an equitable pay
plan they could both live with.
B. The Organization Campaign
Long-haul driver James Jenkins, who was employed at Re-
spondent’s Sutton facility, called the Union on February 1,
1988, and discussed representation of Respondent’s truck-
drivers with Teamsters Local 175 Business Agent David At-
kins. A meeting date of February 7 was scheduled at the
time. Respondent employed about 10 long-haul drivers, who
operated two or three tractor-trailers out of Buckhannon, two
rigs out of Sutton, and one out of White Sulphur Springs. In
addition, Respondent employed approximately six short-haul
drivers and three mechanics, including mechanics Joe Snyder
and Henry Frame, who worked at Respondent’s Buckhannon
facility. By February 13, the seven long-haul drivers named
as alleged discriminatees in the instant case had all signed
union authorization cards.3 The record fails to reveal the
names of employees in the short-haul unit who signed union
authorization cards.
On February 24, the Union filed a petition in Case 6–RC–
9980 requesting a unit of
All full-time and regular part-time long haul drivers
employed by the Employer at its Buckhannon, Sutton
and White Sulphur Springs, West Virginia, facilities;
excluding office clerical employees and guards, profes-
sional employees and supervisors as defined in the Act.
Thereafter, the Union filed the petition in Case 6–RC–9991
seeking a unit of
All full-time and regular part-time short haul drivers
and mechanics employed by the Employer at its
Buckhannon, Sutton and White Sulphur Springs, West
Virginia, facilities; excluding office clerical employees
and guards, professional employees and supervisors as
defined in the Act.4
Elections were held in the above-described representation
cases on April 11 and the Union received a majority of the
votes cast in both units. The Union prevailed in the long-haul
805MOUNTAINEER PETROLEUM
5 Employee Donnie Nottingham was one of the drivers who voted under
challenge. As challenges were not determinative, his ballot envelope would not
have been opened.
6 Par. 28 of the complaint fails to allege that the conduct of James Hinkle
III set forth in par. 7, violates Sec. 8(a)(1) of the Act. It was fully understood
at the time of the hearing that General Counsel contended such conduct vio-
lated Sec. 8(a)(1) and the issues were fully litigated. I treat the omission as
a clerical error.
unit with a vote of 6 to 0, with 2 challenged ballots.5 In the
short-haul unit, the Union prevailed by a vote of 6 to 3. Ran-
dall Alderman was the Union’s observer at the Buckhannon
polling place, and James Jenkins was the Union’s observer
at the Sutton polling place. The Union was certified as the
exclusive collective-bargaining agent of employees in the
units on April 21, 1988.
C. The Alleged 8(a)(1) Violations6
The complaint alleges, and General Counsel contends, that
Respondent engaged in numerous independent violations of
Section 8(a)(1) of the Act during the election campaign and
thereafter. The claim is that Respondent Supervisors Hinkle,
Robert Ayres, George (Pete) Rowan, and Ronald Baker all
engaged in violative conduct at stated times. The supervisory
status of the individuals named is not in dispute. A summary
of the evidence offered in support and in opposition to the
allegations is set forth below.
1. Conduct attributed to Hinkle
a. Hinkle-Alderman/Warner conversation
Randall Alderman, a long-haul driver who worked at the
Buckhannon facility, testified that, at some point in March,
he and James Warner, also a long-haul driver stationed in
Buckhannon, were called into Bob Ayres’ office were Hinkle
met with them. According to Alderman, after telling them
they had really got his attention, he told them he was not
going to have a third party running his company; he was not
going to negotiate any contracts with anybody or put any-
thing on paper because he was the boss and he decided what
the pay was; and that he would shut down if they went
union. Additionally, Alderman testified Hinkle asked them
why they went to the Union during the conversation. His
recollection was that Warner told him they did it because of
the way their pay had been cut back and forth and they never
knew what they would be making.
Alderman recalled that Hinkle indicated during the discus-
sion that he had learned that they could stop the whole elec-
tion process if they would rescind the cards they had sent in.
Warner’s version of the above-described meeting was
brief. He testified Hinkle walked into the office and stated
he had made a bad mistake by cutting their wages down; that
Hinkle asked them to forget about the Union; and that Hinkle
said he wasn’t going to have a third party come in. Accord-
ing to Warner, when Hinkle made his ‘‘third party’’ com-
ment, he asked Hinkle if he would give them a contract him-
self. He recalled Hinkle said he could not do that.
Hinkle was not asked to state his version of the above-de-
scribed conversation. During his testimony, he indicated he
probably told all his employees that he did not want a third
party intervening in his business. He denied, however, that
he told any employee he would close down if the Union was
voted in. Additionally, he denied that he told any employee
that he would not negotiate with the Union or refuse to sign
a contract with it.
Hinkle’s failure to give his version of the above-described
conversation causes me to credit, in main, Alderman’s
version of the conversation. As Hinkle indicated during his
testimony that he was not fully aware of what he could le-
gally say at the time of the meeting under discussion, I doubt
that he used the proper semantics when telling the employees
he did not want a third party intervening in his operations.
Instead, I credit the employees, who both claimed he said he
was not going to have the Union or a third party coming into
the business. Noting that Warner indicated the contract dis-
cussion involved an attempt by the employees to cause
Hinkle to enter an individual contract with them defining
their wages, I conclude that Alderman’s claim that Hinkle
told them during the conversation that he would not nego-
tiate with the Union or sign a contract with it if it were voted
in is unreliable. I do not credit the assertion. Similarly, not-
ing that Hinkle denied that he threatened any employee, and
specifically Alderman, with plant closure, I do not credit his
claim, which was not corroborated by Warner, that Hinkle
threatened plant closure during the meeting.
In sum, I find that, during the March meeting under dis-
cussion, Hinkle told the employees he was not going to have
a third party running his company; he asked them why they
had gone to the Union; and he solicited them to rescind their
union authorization cards. As the record fails to reveal that
employees Alderman and Warner were known union advo-
cates at the time of the conversation, and Hinkle clearly ex-
pressed his opposition to the Union during the meeting, I
find that by interrogating the employees concerning the rea-
son they had gone to the Union, he violated Section 8(a)(1)
as alleged. I further find that by telling them he was not
going to have a third party running his company, he, in ef-
fect, informed them it would be futile for them to obtain
union representation. I find such conduct could reasonably be
said to interfere with, coerce, and restrain employees in the
exercise of their Section 7 rights, and it therefore was viola-
tive of Section 8(a)(1) as alleged. Finally, while General
Counsel contends Hinkle violated Section 8(a)(1) by giving
unsolicited advice to employees as to the mechanics of rev-
ocation, I note the record fails to reveal he offered them as-
sistance and it fails to reveal he thereafter attempted to elicit
information as to whether employees availed themselves of
such advice. In the circumstances described, Hinkle’s con-
duct did not violate Section 8(a)(1) of the Act. Aircraft
Hydro-Farming, 221 NLRB 581, 583 (1975).
b. Hinkle-Jenkins March 3 discussion
James Jenkins, employed as a long-haul driver at Respond-
ent’s Sutton plant, testified that on March 3 the manager of
the Sutton facility, Wilma Sutton, told him Hinkle was on
the phone and wanted to speak with him. Asked to state his
recollection of the conversation, he replied Hinkle told him:
That we had got his attention and that he would
like—he said he had to watch what he says, that he
doesn’t want to say certain things. And that he didn’t
want a third party intervention into his business and he
would like to save the law fees by us voting it out, so
he asked us to vote against it.
806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
When he was asked whether anything else was said, he re-
plied, ‘‘He’d close the doors before he’d accept the Union.’’
During cross-examination, Jenkins admitted the closure threat
was not in the affidavit he gave the Board. He then admitted
Hinkle did not make the statement quoted above.
Jenkins indicated he served as the Union’s observer at the
Sutton polling during the April 11 election. After the polls
were closed at that location he went to the office where he
conversed with Hinkle. The employee testified without con-
tradiction that Hinkle asked him how he had voted and that
he replied he had voted for the Union. Hinkle then asked
him how he thought the tractors and trailers and the little
trucks would go. He responded 100 percent on tractor-trailers
and about 50-50 on the little trucks.
Hinkle did not seek to refute Jenkins’ version of the tele-
phone conversation. I find, however, that the remarks made
by Hinkle were lawful. Similarly, Hinkle did not deny that
he asked Jenkins immediately after the polls closed at Sutton
how he voted and how he thought the tractors and trailers
and little trucks would go. While it is likely that Hinkle was
being facetious when he asked Jenkins how he voted, the
Board places great emphasis on the sanctity of the secret-bal-
lot election process. Thus, while Jenkins’ union sentiments
were undoubtedly known by Hinkle as the employee served
as the Union’s observer at the Sutton polling place, the em-
ployee could have reasonably assumed Hinkle was seeking to
ascertain how he voted because he intended to engage in re-
taliatory acts against him. As the interrogation under discus-
sion occurred in the context described and secret-ballot elec-
tions would no longer be secret if employers were entitled
to ask employees how they voted in a given election, I find,
as alleged, that by asking Jenkins how he voted in the elec-
tion, Respondent, through Hinkle’s conduct, violated Section
8(a)(1) of the Act as alleged. Noting that Hinkle did not seek
to cause Jenkins to indicate how individual employees voted
when he asked his estimate of the way the tractor-trailer unit
and the short-haul unit voted, I find that type of interrogation
did not violate Section 8(a)(1) of the Act.
c. Hinkle-Winemiller conversation
George Winemiller, a long-haul driver employed in Sutton,
testified that Jenkins and Wilma Sutton, Respondent’s man-
ager at the Sutton plant, told him to call Hinkle about a half-
hour after Jenkins conversed with him. While Winemiller re-
peatedly indicated he could not recall the entire conversation
or the order in which comments were made, he testified that
Hinkle told him that we had his attention in a big way; he
would not have a third party running his company; that he
would not negotiate with the Union and that the ball was in
our court and it was our turn to move. He claims he told
Hinkle at some point that they were willing to listen and
Hinkle said his hands were tied and he did not say any more.
As indicated above, Hinkle spoke with employee Jenkins
one-half hour before he spoke with Winemiller. Significantly,
during the Jenkins’ conversation, he commented he had to
watch what he said, and he thereafter made comments which
were entirely lawful. Winemiller’s testimony was
conclusionary in nature and he admitted he could not recall
precisely what was said by Hinkle. Noting that Hinkle denied
telling any employee he would not negotiate with the Union,
and noting his claim that he phrased the third party interven-
tion in his business comment in the form recalled by Jenkins,
I refrain from finding he made comments to Winemiller
which violated Section 8(a)(1) of the Act.
d. Hinkle-Schoolcraft conversation
Schoolcraft, a long-haul driver employed at White Sulphur
Springs, testified he was instructed to telephone Hinkle while
he was on the road on April 2. He testified that after cus-
tomary greetings, Hinkle ‘‘asked my feelings about the
Union’’ indicating he personally was antiunion. The em-
ployee claims he told Hinkle they each had their individual
likes and he felt if it would benefit him and his family he
would have to vote for representation through the Union.
When he was asked if anything else was said, he indicated
Hinkle remarked that he did not like to consider the possi-
bility of someone else interfering with his business.
Hinkle acknowledged during his testimony that he had left
word at a terminal that Schoolcraft was to telephone him, but
he placed the incident as occurring in March rather than on
April 2. He claimed he asked the employee if there had been
union solicitation in White Sulphur Springs because he did
not know at that time which terminals the Union was at-
tempting to organize. He claimed Schoolcraft told him during
the conversation that he was not aware of a union solicita-
tion.
Review of the record causes me to conclude that the
above-described conversation probably occurred in March, as
contended by Hinkle, rather than on April 2. Noting that
Hinkle did not deny indicating that he opposed the Union
during the conversation, and the fact that Schoolcraft’s union
sentiments were admittedly unknown to Hinkle at the time
of the conversation, I find that by interrogating the employee
concerning his feelings about the Union, Respondent,
through Hinkle’s conduct, violated Section 8(a)(1) of the Act
as alleged. Rossmore House, 269 NLRB 1176 (1984).
e. Hinkle-Nottingham March 23 conversation
Donnie Nottingham was hired as a long-haul driver at Re-
spondent’s Sutton location in December 1987. At some
unstated time in late February 1988, Nottingham underwent
emergency surgery which was to disable him for about a
month. While he was off work, the truck he had been driving
was wrecked. On March 23, he visited Respondent’s
Buckhannon facility and spoke with Hinkle in the outer of-
fice. He testified the conversation was as follows:
Well, I asked him when I was going to get to go back
to work because the doctor was going to release me,
and he said that I was laid off and had been for about
a month and I asked him why, and he said, well, he
wasn’t going to put another truck back at Sutton be-
cause of the way the drivers were acting and the trucks
being wrecked and whatever.
Hinkle did not refute Nottingham’s testimony concerning
their March conversation when he appeared as a witness. He
did indicate during his testimony that the White General trac-
tor driven by Nottingham during his period of employment
was located at Elkins Truck Service’s lot with a mechanics
lien placed against it at the time of the hearing.
While General Counsel contends Hinkle violated Section
8(a)(1) by referring to ‘‘the way the drivers were acting’’
during his discussion with Nottingham, the entire comment
807MOUNTAINEER PETROLEUM
7 While I refrained from crediting Alderman’s assertion that plant closure
was threatened during the March meeting in Ayres’ office, I did so, in large
part, because Warner failed to corroborate that crucial testimony. Moreover,
the circumstances were different at that juncture of the organization campaign.
attributed to Hinkle reveals he was indicating his displeasure
with the number of trucks being wrecked rather than with the
union activities of employees. I find the statement is ambig-
uous and refrain from finding it violated Section 8(a)(1) as
alleged.
f. Hinkle-Alderman April 12 conversation
Alderman, who served as the Union’s observer in the
April 11 election at the Buckhannon polling location, testi-
fied that Hinkle pulled in beside him while he was standing
in front of the Buckhannon truck shop on April 12 and ‘‘told
us that he realized we voted the way we felt we had to vote,
and there were no hard feelings, but he said it’s over, I’ll
shut it down,’’ Alderman did not indicate who, if anyone,
was with him or in the immediate vicinity at the time.
When he appeared as a witness, Hinkle admitted he stated
to Alderman the day after the election that ‘‘there was no
hard feelings, that the election was over.’’ He denied that he
told Alderman he was going to shut the business down.
I credit the employee’s version of the above-described in-
cident. Hinkle claimed during his testimony that he had de-
cided to contract out the long-haul work as his fleet depleted
prior to the election, and he claimed the process was not ac-
celerated because the employees turned to the Union. I do
not credit that testimony. Record evidence discussed in de-
tail, infra, reveals retaliatory action was taken against long-
haul drivers subsequent to the election, and Respondent con-
tracted out more hauling without regard for the effect such
action had on its drivers. Careful consideration of the record
causes me to conclude Hinkle decided to contract out the
long-haul operation when Respondent lost the election, and
Alderman’s claim that Hinkle announced his intentions on
April 12 fits the facts.7
Having credited Alderman, I find, as alleged, that Re-
spondent unlawfully threatened to close its long-haul oper-
ations on April 12, 1988, because employees had selected the
Union as their bargaining agent. Such conduct violates Sec-
tion 8(a)(1) of the Act as alleged.
2. Conduct attributed to Ayres
Employee Alderman testified that in late March, after
Hinkle informed him he was going to give long-haul drivers
a raise, Ayres told him they were considering $8 or $8.50
an hour, a safety bonus of $25 every quarter, and an allow-
ance for boots and clothing.
Alderman testified that several days after the election, Su-
pervisor Ayres was acting as the dispatcher and when he
picked up his bills, he was given only one load. He claims
he asked Ayres why he only had one load and Ayres said,
‘‘You’re Union now, you can live on one load . . . the con-
tractors are taking care of the rest of it.’’
When he appeared as a witness, Ayres denied he made the
above-quoted statement. While he admitted Alderman com-
plained about not having as many loads as he had before, he
failed to indicate his response.
Ayres’ failure to supply his version of either of the above-
described conversations he had with Alderman causes me to
credit the employees’ version of the conversations. While
Ayres’ comments concerning the amount of raise to be given
are alleged to constitute violation of Section 8(a)(1), the le-
gality of the raise conferred on long-haul drivers is treated,
infra. Having credited Alderman’s claim that Ayres told him
he was being given fewer loads because he had joined the
Union, I find, as alleged, that Respondent, through Ayres’
conduct, violated Section 8(a)(1) of the Act as alleged.
3. Conduct attributed to Rowan
The record reveals Pete Rowan was a long-haul driver
until he was made a maintenance supervisor on January 1.
In an attempt to retain a close relationship with long-haul
drivers, he signed a union card on February 13.
In late February, Rowan hired one Henry Frame as a me-
chanic. The employee was to work in a shop located in
Buckhannon. When called as a witness by General Counsel,
Frame testified that when he was interviewed for the job by
Rowan, the latter told him the Union was organizing the op-
eration ‘‘and said that, you know, if the Union was ever
voted in that, they’d just have to shut it down.’’ During
cross-examination, Frame altered his testimony and stated
Rowan’s interview comment was ‘‘[H]e told me, you know,
that things were pretty shaky, and if the Union was voted in
that he’d be out of a job and we would be too. Now, that’s
exactly what he stated to me.’’
Employee Alderman testified he conversed briefly with
Rowan on April 15. The day before, Ayres had informed Al-
derman and Warner that they were to share Warner’s truck
and Warner had elected to drive during the day shift because
he was the senior employee. Alderman, who had driven on
the day shift for about 4 years prior to the reassignment,
complained to Rowan on April 15. The employee testified he
asked the supervisor why they took his truck and put him
and Warner on the same truck. He claims Rowan answered,
‘‘[W]ell, maybe they thought you’d quit if they put you on
nights.’’
When Rowan appeared as a witness, he denied the above-
described statements attributed to him by both Frame and Al-
derman. With respect to the Frame interview, he claimed he
merely told the employee they might both lose their jobs be-
cause of the financial condition of the Company. With re-
spect to the Alderman incident, he acknowledged that the
employee asked him why he had been put on nights, but
claimed his response was that other than the truck problem,
he did not really know for sure. He claimed Alderman re-
sponded by asking him if they were trying to get rid of him
by doubling up on night shifts.
I credit employees Alderman and Frame, and I find that
Respondent, through Rowan’s conduct, violated Section
8(a)(1) of the Act by telling Alderman he was placed on the
night shift because they thought he might quit if transferred,
and by telling employee Frame they might both lose their
jobs if the Union was voted in.
4. Conduct attributed to Baker
Ronald Baker is the manager of Respondent’s Sutton facil-
ity. On April 22, employees Schoolcraft and Baker were
making deliveries with the straight truck and/or short-haul
truck in the Sutton area. Schoolcraft testified that during the
course of the day, Baker asked his feelings on the Union,
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Drivers had previously been paid for all miles driven, rather than just miles
driven with a load.
and he replied he felt it was benefiting himself and his fam-
ily and that was the reason he voted for the Union. The em-
ployee claims Baker, in turn, stated he felt it was going to
be to their disadvantage.
Baker was not called as a witness to rebut Schoolcraft’s
testimony.
The complaint alleges that Baker, by telling Schoolcraft
that he felt their selection of the Union would work to their
disadvantage, violated Section 8(a)(1). In the absence of fur-
ther evidence which would indicate how selection of the
Union would work to the employee’s disadvantage, I find the
comment to be a vague statement which does not rise to the
level of a threat. I recommend the allegation be dismissed.
D. The Alleged 8(a)(3) Violations
The complaint alleges that Respondent violated Section
8(a)(3) of the Act during the months of April and May 1988
by: increasing the rates of pay and other benefits of employ-
ees on or about April 4 (par. 12); reducing the hours of Jen-
kins, Warner, Winemiller, and Kelley since April 11 by
using subcontractors to perform their work (par. 13); trans-
ferring Alderman to the night shift on April 14 (par. 14); and
by laying off and/or terminating nine named employees dur-
ing the period extending from March 1 to May 13, 1988,
after subcontracting out their work (par. 15). The allegations
are discussed individually below.
1. The wage and/or benefit increases
The facts which reveal fluctuations in the rate of pay and
benefits received by Respondent’s long-haul drivers during
the period September 1987 to mid-May 1988, were provided
by Hinkle and are, in main, undisputed.
As indicated, supra, Respondent found it necessary to en-
gage in a second restructuring of its finances in the summer
of 1987 because an earlier restructuring plan implemented
during the summer of 1986 was not working.
In September 1987, Respondent was paying its long-haul
drivers 22 cents per mile and certain unspecified additional
amounts in the form of drop and/or delivery charges and
delay charges. Hinkle met with the drivers at some unstated
time during the indicated month and informed them their pay
was to be reduced to 18 cents per mile, and the payments
for drops and delays were to be eliminated.
In November 1987, Hinkle met again with long-haul driv-
ers, indicating that in December the drop payments would be
reinstituted. At that time, he informed them ‘‘we would do
something at the first of April [1988] when the pay from the
fence sales came in.’’
Hinkle testified he next met with the long-haul drivers to
discuss their pay in January 1988. At that time, he claims
delay or drop charges were improved, but he was unable to
give specific information. He indicated that the drivers were
again informed that Respondent’s collection of fence moneys
would be in at the end of March and they would then have
some funds available to look at increasing their pay at the
time; that in the meantime they would be looking to come
up with an equitable pay plan they could each live with.
After the January meeting, Hinkle and Ayres, then Re-
spondent’s computer systems manager, analyzed the drivers’
pay over the preceding 6 months, looking at the loads they
were delivering, the delay time they had, and different meth-
ods of payment that would be more equitable. They ulti-
mately developed a plan which was based on 42 cents a
loaded mile,8 or $7 an hour, provided the driver had been
employed for 4 years or more.
Hinkle admitted that individual meetings were held with
the long-haul drivers during March to discuss the pay pro-
gram with each driver to see which option each desired.
While Hinkle was admittedly aware the Union had petitioned
for an election before the March meetings were held, he ex-
plained his reason for deciding to implement the wage im-
provements effective March 27, 1988, stating:
That was the dilemma that I was in. I was not fully
aware of the law situation, other than I know that we
had began negotiations and/or discussions with our em-
ployees for pay increases to be in effect the first of
April. And those were as—you know, go back as far
as November which our first meeting after the pay re-
duction. And to maintain the employees, to keep the
employees, I felt that we had to go ahead and put the
pay into effect, which we did on March the 27th, be-
cause we had promised that we would look at it and
do it at the end [sic] of April.
The Board considered the validity of wage increases dur-
ing the pendency of representation petitions in Honolulu
Sporting Goods Co., 239 NLRB 1277 (1979), and observed
(at 1280):
The validity of wage increases or other benefits dur-
ing the pendency of representation petitions turns upon
whether they are granted ‘‘for the purpose of inducing
employees to vote against the union.’’ And a lawful
purpose is not established by the fact that the employer
who took such action did not expressly relate the grant-
ed wage increases to the organizational campaign. For,
as the Supreme Court observed in NLRB v. Exchange
Parts Co., supra at 410, ‘‘the absence of conditions or
threats pertaining to the particular benefits conferred’’
is not ‘‘of controlling significance.’’ Under settled
Board policy, a grant or promise of benefits during the
critical preelection period will be considered unlawful
unless the employer comes forward with an expla-
nation, other than the pending election, for the timing
of such action. [Citations omitted.]
Here, Respondent’s explanation for the timing of the wage
increase conferred on March 27 is that it promised employ-
ees in November and again in January that it would look at
their wage situation when the money from fence sales came
in. While, as observed by General Counsel, it is clear that
Respondent did not announce, prior to the time the petitions
were filed on February 22, that employees would be given
an option of an hourly rate or mileage computed by loaded
mile, l conclude the employees were led to believe in No-
vember and again in January that the earnings they lost in
September 1987 would be restored to them in late March or
early April 1988. Significantly, the record reveals the wage
increase announced on March 27 was applicable to long-haul
drivers only. Thus, it appears that the wages of short-haul
drivers remained unaltered during the entire period discussed.
809MOUNTAINEER PETROLEUM
9 Hinkle’s recollection was that he indicated that it would probably be better
if he looked elsewhere for a job because of the insurance problems.
10 As noted, supra, I credit Alderman’s claim that the truck did not have
an oil leak when it was taken away from him.
In the absence of evidence which would reveal the short-haul
drivers also received a wage increase during the pendency of
the petition involving their bargaining unit, Respondent’s as-
serted reason for announcing the increase for long-haul driv-
ers at the time the announcement was made appears to be
reasonable. I find the facts adduced fail to establish the vio-
lation alleged in the complaint.
2. The alleged unlawful reduction of hours worked by
long-haul drivers because their work was contracted out
General Counsel contends that subsequent to April 11 Re-
spondent unlawfully reduced the amount of hours worked by
employees Kennith Kelley, Randall Alderman, James War-
ner, James Jenkins, and George Winemiller. The treatment
experienced by each employees is discussed below.
a. Kennith Kelley
Kelley was hired as a long-haul driver at Respondent’s
Buckhannon facility in July 1979. In early February 1988,
his driver’s license was suspended for 1 month the day after
Kelley’s license was suspended, the new driver assigned to
drive the truck he had been driving wrecked it.
On February 13, 1988, Kelley signed a union authorization
card. On April 11, he attempted to vote in the election held
in the long-haul driver unit. His vote was challenged and as
the remaining drivers voted unanimously for representation,
the challenged ballots would not have been opened.
At the end of his license suspension period, Kelley asked
Gary Moore and, subsequently, Hinkle if he could return to
work. Moore informed him his truck had been wrecked and
indicated Respondent would have to check with their insur-
ance company before they put him back on. A short time
later, when he inquired again, he claims Hinkle told him
‘‘the way things were if I could find something else better
I’d be better off.’’9 Kelley was not recalled to work there-
after.
While General Counsel proved that Kelley engaged in
union activity, the record fails to reveal that Respondent was
aware the employee engaged in such activity. Moreover, the
record strongly suggests Kelley was not reinstated by Re-
spondent because his truck had been wrecked and his rein-
statement would possibly create insurance problems for Re-
spondent. I find General Counsel failed to establish, prima
facie, that Respondent violated Section 8(a)(3) of the act by
refusing to utilize Kelley as a driver subsequent to the time
his driver’s license was suspended.
b. Randall Alderman
Randall Alderman was employed by Respondent as a
long-haul driver in May 1984. He worked at the Buckhannon
facility. The record reveals Alderman signed a union author-
ization card on February 13, and Hinkle asked him prior to
the April 11 election why he had gone to the Union. Noting
the employee participated in the long-haul unit election as a
union observer and that the drivers voted unanimously for
representation, it is clear, and I find, that Respondent was
aware of his union sentiments.
Alderman testified he worked 12 to 16 hours a day in
early 1988. He indicated Ayres, then Respondent’s dis-
patcher, told him on April 13 that he and Jim Warner would
both be driving the same truck. The plan was that Warner,
the senior driver, would drive the day shift and Alderman
would drive the night shift. The employee testified that on
occasion he was given only one load a day to haul after
April 11, and the number of hours he worked subsequent to
the election, varied from 6 to 12. As found, supra, when he
questioned Ayres about being given only one load, Ayres
told him now that he belonged to the Union he could get
along on one load; that the contractors are taking care of the
rest of it. He claimed nothing was wrong with the truck he
had been driving prior to the election; that it was simply
parked at the Buckhannon facility.
Respondent made no attempt to refute Alderman’s claim
that he was given fewer loads and worked fewer hours after
the election. While Hinkle testified the truck Alderman was
taken off of on April 13 had an oil leak when it was returned
after extensive repairs, his testimony was not corroborated in
any manner. As Alderman actually operated the vehicle, I
credit his claim that nothing was wrong with it on April 13.
In sum, the record reveals that Alderman was a known
union advocate and certain comments made by Respondent’s
supervisory officials reveal Respondent intended to punish
him for his participation in protected activities. Thus, Ayres
told him he was being given fewer loads subsequent to the
election because he was represented by the Union and could
get along on fewer loads. Similarly, Maintenance Supervisor
Rowan told him he had been transferred to the night shift be-
cause they thought he might quit. The above, coupled with
the admission in Respondent’s answer that the hours of work
of employees named in paragraph 13 of the complaint were
reduced ‘‘through subcontracting’’ cause me to find that
General Counsel established, prima facie, that the employee’s
participation in protected activities was a ‘‘motivating fac-
tor’’ in Respondent’s decision to reduce his hours of work.
Through Hinkle’s testimony, Respondent established that
during February and early March 1988, the Buckhannon,
Sutton, and/or White Sulphur Springs long-haul drivers
wrecked three of Respondent’s tractors. Additionally, the
record reveals the motor went on a fourth truck. According
to Hinkle, Chrysler Capital, which had financed two of the
trucks kept the insurance money which was paid after two
of the accidents because Respondent was seriously in arrears
in their truck payments. The record reveals that Respondent
was able to pay for engine repair to the truck which had a
blown engine, but the repair was not entirely successful and
the truck was not fit for long-haul operations. Hinkle testified
that two of the wrecked tractors were never returned to serv-
ice; that one remained unrepaired at the Buckhannon facility
at the time of the hearing, and a second tractor was repaired
but was held by an Elkins, West Virginia repair facility by
virtue of a mechanics lien. According to Hinkle, the third
wrecked tractor was returned to Respondent around the time
of the election, but it was withdrawn from service because
it had an oil leak.10
Undisputed record evidence reveals that, as the above-de-
scribed tractors were disabled, Respondent accomplished pe-
troleum hauling by causing its remaining units and drivers to
haul more product, and by engaging contractors to haul what
810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent was unable to haul. According to Hinkle, three
units were operable at the time of the election. Subsequently,
in mid-April, the crank shaft in a red Mack, which was being
used at the Sutton facility, broke and Hinkle testified Re-
spondent did not have the cash to accomplish repair of that
tractor, which was estimated at $10,000. Although the record
reveals Ayres was acting temporarily as Respondent’s dis-
patcher at the time of the election and thereafter, he failed
to indicate when he appeared as a witness why he underuti-
lized Respondent’s equipment and drivers by dispatching
hauling they would have normally accomplished to contrac-
tors.
The above-indicated facts reveal that Respondent was
compelled to contract out the hauling of petroleum products,
which it could not accomplish with its own equipment and
drivers at the three locations immediately involved in this
proceeding, from February 1988 forward. However, Re-
spondent failed to establish that it would have contracted out
work normally performed by its equipment and drivers dur-
ing the period extending from April 11 to May 13 in the ab-
sence of the long-haulers’ selection of the Union as their bar-
gaining agent.
Accordingly, I find that by reducing Alderman’s hours of
work subsequent to April 11, 1988, Respondent violated Sec-
tion 8(a)(1) and (3) of the Act as alleged.
c. James Warner
Warner began working for Respondent in October 1983.
He, like Alderman, was a long-haul driver who worked out
of the Buckhannon terminal. The employee testified that be-
fore the April 11 election he worked 18–20 hours a day, 6
days a week. He signed a union authorization card on Feb-
ruary 16, and, together with Alderman was later asked by
Hinkle why he had gone to the Union. Any doubt that Re-
spondent was aware of his union advocacy was removed
when he participated in the election held in the long-haul
unit and the drivers voted unanimously for union representa-
tion.
Warner testified that prior to the election, Wordford Oil
was the only outside company which hauled petroleum prod-
ucts to the Buckhannon facility. He indicated P & L Enter-
prise (sic) started to haul to the Buckhannon facility after the
election and he worked only 5 days a week and worked
shorter hours.
Other than claiming that Warner and Alderman were dou-
bled up on the same truck after the election because Alder-
man’s regular truck had an oil leak, Respondent offered no
reason for working Warner 5 days a week rather than 6 days
and for working him fewer hours after the election.
In sum, the record reveals Warner was a known union ad-
vocate who had been unlawfully interrogated by Respond-
ent’s president Hinkle at the outset of the union campaign.
It further reveals that his hours of work were reduced as a
result of Respondent’s decision to cause employee Alderman
to double up with him on the truck he was regularly assigned
to drive on or about April 13. The above, coupled with Re-
spondent’s demonstrated antiunion animus and its admission
in its answer that the employees named in paragraph 13 of
the complaint received fewer hours of work after April 11,
1988, because of subcontracting, cause me to conclude that
General Counsel established, prima facie, that Warner’s par-
ticipation in protected activities was a ‘‘motivating factor’’ in
Respondent’s decision to reduce the employee’s hours of
work by subcontracting work he normally performed and by
causing employee Alderman to double up with him on the
truck he was regularly assigned to drive.
As noted, supra, the only reason Respondent gave for as-
signing Alderman to share the truck normally assigned exclu-
sively to Warner was its claim that Alderman’s truck had an
oil leak. I have rejected that claim. Consequently, I find that
Respondent has failed to prove that it would have doubled
Alderman and Warner up on the same truck or subcontracted
work they normally performed in the absence of Warner and
Alderman’s participation in protected conduct. Accordingly,
I find, as alleged, that by reducing Warner’s hours of work
subsequent to April 11, 1988, Respondent violated Section
8(a)(1) and (3) of the Act.
d. James Jenkins
Jenkins was hired by a firm named Super Petroleum
around 1974. Respondent acquired Super about 5 years later
and Jenkins has been a long-haul driver at Respondent since
then. In April 1988, Jenkins was earning $7 per hour. He
worked out of the Sutton plant.
The record reveals Jenkins was the employee who origi-
nally contacted the Union. He credibly testified he attended
union meetings, signed a union authorization card during
February, and acted as the Union’s observer at the polling
place in Sutton. He testified without contradiction that Hinkle
asked him after the polling place was closed in Sutton how
he voted, and how he thought the tractor-trailers and the little
trucks went. He admitted to Hinkle that he had voted for the
Union, and indicated he thought the long-haul drivers voted
100 percent for the Union, while the persons in the little
truck unit probably voted 50 percent. It is clear, and I find,
that Jenkins engaged in union activity and Respondent was
aware of his advocacy.
Jenkins testified he worked 5–6 days a week and 12–15
hours a day prior to April 11. He claimed he was given only
about half as much work subsequent to the election; that the
amount of work performed by outside contractors increased
measurably.
Respondent did not seek to rebut Jenkins’ claim that he
was given only half as much work after the election as he
had received before the election. Moreover, it failed to con-
test Jenkins’ claim that outside contractors hauled more prod-
uct into the Sutton facility than they had hauled to that facil-
ity prior to the election.
In sum, the record reveals Respondent caused a reduction
in the number of days and hours worked by Jenkins subse-
quent to the April 11 election without supplying the employ-
ees with a reason for its action. It further reveals that Re-
spondent exhibited marked antiunion animus and that one
employee—Alderman was getting fewer loads because he
was union. Moreover, Respondent admits that such reduction
in the number of hours worked by employees named in para-
graph 13 of the complaint was due to subcontracting. I find
that by adducing the above facts, General Counsel estab-
lished, prima facie, that Jenkins’ participation in union activi-
ties was a ‘‘motivating factor’’ in Respondent’s decision to
reduce his hours of work through subcontracting.
The record is barren of any evidence which would reveal
that Respondent had a business related reason for sub-
contracting subsequent to April 11, 1988 work which had
811MOUNTAINEER PETROLEUM
previously been performed by long-haul unit employees. Ac-
cordingly, I find that Respondent has failed to prove that it
would have contracted out work previously performed by
Jenkins absent his participation in union activities. I find, as
alleged, that by reducing his hours of work through subcon-
tracting subsequent to April 11, 1988, Respondent violated
Section 8(a)(1) and (3) of the Act as alleged.
e. George Winemiller
George Winemiller was hired by Respondent as a long-
haul driver at its Sutton facility on March 1, 1984. He signed
a union authorization card on February 8, and voted in the
long-haul unit election held on April 11. Respondent was
necessarily aware of his union sentiments as the long-haul
drivers vote for representation by the Union was unanimous.
Winemiller testified he was on the day shift prior to the
election, and he claims he worked 12–14 hours each day. He
testified that, after the election, his hours of work were cut
in half. Winemiller indicated that while outside contractors
only hauled product to Sutton 3 or 4 days a month prior to
the election, there was a big increase in the amount they
hauled to Sutton after the election. Respondent did not seek
to rebut Winemiller’s testimony regarding the amount of
work he was given before and after the election, nor did it
dispute his claims that outside contractors hauled more prod-
uct to Sutton after the election.
In sum, the record reveals Respondent reduced the number
of hours Winemiller worked each day after the election by
approximately 50 percent. At the same time, it increased the
amount of work performed at the Sutton facility by outside
contractors. It gave the employee no reason for its action and
its answer admits it reduced the hours of work of the em-
ployees and in paragraph 13 of the complaint through sub-
contractors subsequent to April 11, 1988. Such facts, consid-
ered in conjunction with the antiunion animus exhibited by
Respondent and its postelection treatment of Alderman and
Warner, cause me to infer Respondent took the action de-
scribed because the long-haul drivers selected the Union as
their bargaining agent. Accordingly, I find General Counsel
established, prima facie, that Winemiller’s participation in
union activities was a ‘‘motivating factor’’ in Respondent’s
decision to reduce his hours of work through subcontracting
subsequent to April 11, 1988.
The record fails to reveal that Respondent reduced the
hours of work and/or contracted out work performed by
Winemiller subsequent to April 11, 1988, for valid business
reasons. Consequently, I find it has failed to prove that it
would have contracted out work regularly performed by
Winemiller prior to April 11, 1988, in the absence of the em-
ployee’s participation in protected activities. Accordingly, I
find, as alleged, that by reducing Winemiller’s hours of work
through subcontracting subsequent to April 11, 1988, Re-
spondent violated Section 8(a)(1) and (3) of the Act.
3. Alderman’s transfer to the night shift
The facts which reveal the extent of Alderman’s union ac-
tivities, Respondent’s response to those activities, and the
circumstances under which he was transferred to the night
shift are set forth, supra. I find those facts reveal that Re-
spondent violated Section 8(a)(1) and (3), as alleged, by
placing the employee on the truck normally driven by em-
ployee Warner, thus requiring him to drive during night-time
hours.
4. The layoffs of nine employees
Paragraph 15 of the complaint alleges that as a result of
subcontracting Respondent laid off nine named employees
during the period March 1, 1988, through May 13, 1988. Re-
spondent admits the allegation in its answer. As will be indi-
cated, infra, seven of the nine employees named in paragraph
15 of the complaint were laid off as a direct result of Re-
spondent’s decision to contact out the work of petroleum
hauling. The record reveals, however, that employees Donnie
Nottingham and Kennith Kelley were terminated for other
reasons. Consequently, their terminations are treated individ-
ually below.
a. The Nottingham termination and Kelley termination
Nottingham was a long-haul driver at Respondent’s Sutton
facility. He experienced emergency surgery in early Feb-
ruary. While he was recuperating, another driver wrecked the
truck he normally drove. Nottingham signed a union author-
ization card on February 7 and met with union representative
Randy Atkins on that date.
On March 23, Nottingham informed Hinkle he was being
released by the doctor to return to work. He testified, without
contradiction, that Hinkle told him he had been laid off for
about a month. When the employee asked why, Hinkle stated
he was not going to put another truck back at Sutton ‘‘be-
cause of the way the drivers were acting and the trucks were
being wrecked and whatever.’’ Nottingham had not been re-
called or rehired as of the time the hearing was held in the
instant case. The record fails to reveal that Respondent was
aware that Nottingham had engaged in union activity at the
time of the above-described conversation. It further reveals
that during the month of February 1988 Respondent’s drivers
either totaled or seriously wrecked and damaged three of Re-
spondent’s seven operating trucks.
In sum, General Counsel failed to prove that Respondent
was aware of Nottingham’s participation in union activities
at the time it refused to reemploy him on March 23, 1988.
While General Counsel contends Hinkle was referring to the
union activities of Respondent’s employees when he told
Nottingham why he was not going to replace the truck Not-
tingham had been driving, it seems absolutely clear to me
that he was expressing dissatisfaction over the fact that
Nottingham’s truck and two others had been wrecked while
Nottingham was off. In the circumstances, and in the absence
of evidence which would reveal company knowledge of
Nottingham’s limited union activities, I find General Counsel
has failed to establish, prima facie, that the employee’s par-
ticipation in protected conduct was a ‘‘motivating factor’’ in
Respondent’s decision to refuse him reemployment on March
23, 1988.
The facts which reveal the circumstances under which em-
ployee Kennith Kelley was terminated are fully set forth,
supra. Those facts reveal the employee was terminated in
March rather than on May 13, 1988, as alleged in the com-
plaint. As indicated, supra, I find General Counsel failed to
prove, prima facie, that Kelley was terminated in violation of
Section 8(a)(3) of the Act.
812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 See, for example, a memo dated June 1, 1988 (G.C. Exh. 19), sent by
Respondent to ‘‘Dear Friends and Business Associates’’ which indicates Re-
spondent’s financial condition was improving.
b. The termination of short-haul unit mechanics and
long-haul unit drivers
Employee Henry Frame, a mechanic, and Joseph Snyder,
a mechanic’s helper, who both worked at Respondent’s shop
located in Buckhannon, were terminated, allegedly for lack
of work, on April 23 and May 6, 1988, respectively. Al-
though the Union was selected as the bargaining representa-
tive of employees in the short-haul unit in which Frame and
Snyder were employed, the record fails to reveal that either
employee engaged in union activities or that Respondent
knew or suspected they had engaged in union activities. As
noted, supra, however, the complaint alleges, and Respond-
ent’s answer admits, that Frame and Snyder were laid off
and/or terminated ‘‘through and as a result of subcon-
tracting.’’
In mid-April, shortly after the April 11 election, the crank-
shaft in the tractor normally driven by long-haul driver James
Schoolcraft broke. Thereafter, Schoolcraft was engaged by
Ronald Baker, the manager of Respondent’s White Sulphur
Springs facility to operate a short-haul truck in the White
Sulphur Springs area on April 20 and 22. Hinkle testified
that the repair cost of the truck normally driven by
Schoolcraft was estimated to be $10,000, and Respondent
elected not to repair it because it did not have the necessary
cash. Schoolcraft was notified on April 29, 1988, that he was
laid off.
Long-haul drivers Randall Alderman, James Jenkins,
James Warner, and George Winemiller were all laid off on
May 13, 1988. Effective May 15, Respondent contracted all
of the long-haul work to firms which used their own trucks
and employees.
The complaint alleges, and General Counsel contends, that
the above-named mechanics and drivers were all terminated
because Respondent decided to contract out all of its long-
haul work because the long-haul unit employees selected the
Union as their bargaining agent on April 11, 1988, and the
Union was certified as the exclusive bargaining agent of such
employees on or about April 21, 1988. As noted, supra, Re-
spondent was necessarily aware of the prounion sentiments
of the named long-haul drivers as they unanimously voted
for union representation in the April 11 election.
During his appearance as a witness, Hinkle admitted he
did not want the Union to succeed in its effort to represent
Respondent’s employees because he felt union representation
would be detrimental to Respondent financially. While
Hinkle claimed Respondent did not wage an antiunion cam-
paign during the organization drive, the record belies his as-
sertion. Thus, the record reveals that after the Union filed its
petitions for election, Respondent unlawfully interrogated
employees concerning their union activities, threatened that
employees would lose their jobs if they voted for the Union,
threatened plant closure if the employees selected the Union
as their bargaining agent, and implied that selection of the
Union as their bargaining agent would be an exercise in futil-
ity. Moreover, after the employees in both bargaining units
opted for union representation, Respondent retaliated against
its employees by causing two employees to double up on one
truck, transferring an employee from the day shift to the
night shift in an attempt to cause him to quit, told an em-
ployee he was receiving less loads because he was now
union, and contracted out work previously accomplished by
its own equipment and drivers, thereby reducing the number
of days and hours long-haul drivers worked. The record fur-
ther reveals that from February 1988 forth, Respondent has
used three and, on occasion, four long-haul trucks to accom-
plish long hauling to the facilities involved in the instant pro-
ceeding. The evidence which I credit reveals that at least
three such vehicles were operable as of April 28, the date
Respondent’s counsel advised the Union it intended to con-
tract out the long-haul work effective May 15. Finally, Gen-
eral Counsel established through Hinkle’s testimony that Re-
spondent’s avowed reason for granting long-haul drivers
raises on or about March 27 was its desire to retain its good
drivers.
The antiunion animus exhibited by Respondent, the unlaw-
ful conduct it engaged in during the organization campaign,
including threats of closure of long-haul operation by its
president and other supervisors, that evidence which reveals
Respondent was equipped to continue its long-haul business
in May, and the timing of the contracting out of the long-
haul work cause me to infer that the long-haul driver’s selec-
tion of the Union as their bargaining agent was a ‘‘moti-
vating factor’’ in Respondent’s decision to contract out the
long-haul work. Accordingly, I find General Counsel estab-
lished, prima facie, the 8(a)(3) violation alleged in paragraph
15 of the complaint.
Respondent defends the decision to contract out the long-
haul of petroleum products and its implementation of that de-
cision by claiming the record reveals an economic justifica-
tion and necessity for that action. Its contention is supported
to a measurable extent by record evidence. Thus, as indicated
in the ‘‘Background’’ portion of this decision, Respondent
has been in a precarious financial condition since mid-1986.
As revealed there, it has undergone two financial reorganiza-
tions since 1976, has contracted out significant portions of its
petroleum hauling business, and has explored the feasibility
of further contracting out such hauling. The record further re-
veals the drivers at the facilities involved in this proceeding
have nearly decimated the seven or eight trucks used at such
facilities by wrecking three of them, and mechanically dis-
abling two others. With further respect to the equipment,
Hinkle credibly testified the lack of capital, the retention of
insurance moneys by Chrysler Capital which financed two
trucks, and Respondent’s poor credit standing has hampered
Respondent in its ability to repair the wrecked and disabled
vehicles. Finally, Hinkle testified that Respondent was in ar-
rears with the lending institutions which had financed Re-
spondent’s vehicles, and he claimed it was in no position to
meet balloon payments due at or near the time he decided
to contract out the long-haul work.
Discussion and Analysis
Respondent’s attempt to explain its conduct in terms of
economic necessity is unconvincing. In the first place, I note
that the defense was presented solely through the testimonial
evidence given by Hinkle, and no significant documentary
evidence was offered to substantiate his testimony. His asser-
tions may be entirely true. On the other hand, he may have
grossly exaggerated Respondent’s economic problems.11 Sec-
ondly, the record reveals Respondent was apparently able to
813MOUNTAINEER PETROLEUM
12 Respondent suggests that under Textile Workers Union v. Darlington Mfg.
Co., 380 U.S. 263 (1965), plant closure is permissible absent a showing that
the purpose and effect of the closure was to chill unionism at any of the em-
ployer’s remaining plants. However, the Supreme Court excepted from the
reach of its decision, situations analogous to the instant case ‘‘were a depart-
ment is closed for antiunion reasons, but the work is continued by independent
contractors.’’ Id. at 272–273 fn. 16.
13 While Frame testified Maintenance Supervisor Rowan told him when he
was terminated that Respondent intended to subcontract out its maintenance
Continued
supply the three facilities involved in this proceeding with
the needed volume of petroleum products during that portion
of 1988 which preceded the election with only minimal use
of outside contracts. While it is clear that an increased
amount of hauling was dispatched to outside contractors im-
mediately after the April 11 election, Respondent offered no
reason for dispatching additional work to such contractors.
Indeed, comments made by Ayres, the dispatcher, and by
Rowan to employee Alderman convince me that additional
hauling was assigned to contractors after the election because
Respondent desired to punish the long-haul drivers for voting
for union representation. Although Hinkle testified Respond-
ent was not financially able to make past due payments on
the vehicles used at the three involved facilities, no evidence
was offered which would reveal repossession of any given
vehicle was imminent at the time the long-haul work was
contracted out. In situations such as the one involved here,
a decision to contract out work rather than perform it ‘‘in
house’’ would normally be supported by the cost involved
when the work was performed both ways. Other than causing
Hinkle to testify in conclusionary fashion that Respondent’s
experience subsequent to the contracting out revealed Re-
spondent could get the petroleum products transported at
lesser costs by using the contractors, no evidence was offered
which would reveal any cost analysis was conducted before
the work under discussion was contracted out. Indeed, when
Hinkle was asked to indicate the ‘‘before’’ and ‘‘after’’ haul-
ing costs, he stated he had put a pencil to it but did not have
the results produced at the time of the hearing. In the ab-
sence of supporting documentary evidence, Hinkle’s verbal
claims are entitled to diminished weight. If contractors could
transport the petroleum products from the pickup points to
Respondent’s facilities at lesser costs than Respondent in-
curred when it utilized its own employees and trucks, one
wonders why Respondent used the latter method from 1978
until the Union was certified as the bargaining representative
of the long-haul drivers at almost precisely the same time
Respondent contracted out their work.
In sum, while Respondent was certainly experiencing fi-
nancial difficulties at the time it contracted out the long-haul
work, I am not convinced by reliable concrete evidence that
it would have contracted out the work in the absence of the
long-haul drivers’ selection of the Union as their bargaining
agent. I am convinced the work would not have been con-
tracted out if the Union had lost the election, and I infer,
after review of the entire record, that the Union’s success in
the long-haul unit election triggered the decision to contract
out the work performed by those unit employees. Accord-
ingly, I find, as alleged, that by terminating the employment
of James Jenkins, Randall Alderman, James Warner, and
George Winemiller on May 13, 1988, Respondent violated
Section 8(a)(1) and (3) of the Act.12 Additionally, I find that
the decision to contract out the long-haul work caused Re-
spondent to terminate the employment of Henry Frame and
Joseph Snyder on April 23 and May 6, 1988, respectively,
because their services were not needed after such work was
contracted out. Having found Respondent unlawfully con-
tracted out the long-haul work, I find it violated Section
8(a)(1) and (3) of the Act when it terminated Frame and
Snyder. See Dillingham Marine & Mfg. Co. v. NLRB, 610
F.2d 319, 321 (5th Cir. 1980).
E. The Alleged 8(a)(5) Violations
Paragraph 21 alleges that Respondent engaged in a refusal
to bargain with the Union since April 28, 1988. Paragraphs
22 through 25 allege it violated Section 8(a)(5) by: unilater-
ally increasing the subcontracting of long-haul work since
April 11; unilaterally reducing the hours of work of long-
haul drivers since April 11 through subcontracting; unilater-
ally eliminating the work of short-haul mechanics through
subcontracting; and eliminating long-haul unit work by sub-
contracting on or about May 13, 1988. While Respondent de-
nied paragraphs 21 through 25 of the complaint in its an-
swer, it admitted paragraph 13 which alleges:
Since on or about April 11, 1988, through subcon-
tracting, Respondent reduced the hours of work of its
employees Randall Alderman, James Jenkins, George
Winemiller and Kenny Kelley.
The facts relating to the allegations are set forth below.
Hinkle’s testimony and the record reveal that prior to the
time the elections were held at Respondent’s facilities on
April 11, Respondent sought to increase the size of its long-
haul staff, and increased the pay of its existing tractor-trailer
drivers in an attempt to retain good employees. Thus, the
record reveals that in March Respondent placed an advertise-
ment in the Braxton Democrat, a local weekly paper, seeking
tractor-trailer drivers for work in the Sutton area. As re-
vealed, supra, Hinkle indicated during his testimony that
even though Respondent was engaged in a financial organi-
zation effort in late March 1988, he felt compelled to in-
crease the remuneration received by long-haul drivers on
March 27 to enable Respondent to maintain good employees.
Hinkle freely admitted during his testimony that he did not
want his facilities unionized because he felt unionization
would adversely impact on the financial condition of the
Company. When unionization became a reality on April 11,
he indicated Respondent had altered its plans for the long-
haul petroleum operation by telling employee Alderman he
had no hard feelings over the election but intended to shut
down the long-haul operation.
As noted supra, Respondent admits in its answer that it,
through subcontracting, reduced the hours of work of named
long-haul drivers after April 11. The record reveals that the
outside contractors who were given long-haul work or re-
ceived increased loads were Tom Wilt Trucking, P & L En-
terprises, Fleet, Eastern, John Black, and Woodford Oil.
In addition to the fact that increased subcontracting of the
long-haul work reduced the hours of long-haul drivers as dis-
cussed, supra, the record reveals that decreased use of Re-
spondent’s long-haul equipment caused it to terminate shop
employees Henry Frame and Joseph Snyder on April 23 and
May 6, 1988.13
814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work, the record fails to reveal any subcontracting of maintenance work actu-
ally occurred.
14 General Counsel indicated during the instant case that 10(j) proceedings
had been instituted against Respondent.
Despite the fact that the record reveals Respondent com-
menced to sublet work previously performed by its long-haul
unit drivers immediately after the April 11 elections were
held, no notice of its intention to subcontract such work was
given to the Union until an exchange of correspondence be-
tween David Atkins, the Union’s business agent, and Fred
Holroyd, Respondent’s attorney, occurred in late April and
early May. Thus, by letter dated April 28, 1988, Atkins noti-
fied Respondent the Union had been certified by the Board,
and it requested bargaining. He indicated he was available
the week of May 16 and the week of May 23. On the same
date, Holroyd sent the Union a letter advising he represented
Respondent. The second paragraph of the letter states:
This is to further advise that the employer intends to
terminate that portion of its business involving the long
haul tractor trailer drivers and expand its existing con-
tract with Eastern Motor Freight, Leaseway Transpor-
tation, Highway Express and Tom Wilt to cover their
operation. If you wish to discuss this proposed action
or its effects on your members, please so advise me be-
fore May 5, 1988 as it is our plan to effect this action
on May 15, 1988.
The Union responded to Holroyd’s April 28 letter on May
4. The body of the letter states:
We received your letter dated April 28, 1988 on May
2, 1988. I requested the start of bargaining in my letter
of April 28, 1988 to J. D Hinkle (copy enclosed) re-
garding long haul drivers. It is Local 175’s position that
your proposed elimination of the work of these drivers
is a violation of the Labor Act and constitutes bad faith
of J. D. Hinkle & Sons.
I still await a response for negotiations and am still
willing to meet with you at any time.
By letter dated May 6, Holroyd replied to the Union’s
May 4 letter stating:
Unless otherwise notified I shall interpret your letter
of May 4 to mean that you decline to enter into discus-
sions about the proposal to eliminate the long haul
routes or its affect on the employees you represent.
I will be happy to meet with you at a mutually
agreeable time during the periods you suggest. I do re-
quest that you furnish us with a complete set of pro-
posals so we can study them prior to the first meeting.
By letter dated May 10, the Union answered Holroyd’s
May 6 letter stating:
Pursuant to your letter dated May 6, 1988 and re-
ceived in this office on May 9, 1988, please be advised
Local 175 is willing to bargain on all issues in your let-
ter. However, I feel the proposed action to terminate the
long haul tractor trailer drivers on May 15, 1988 does
not allow sufficient time to bargain in good faith.
I am requesting a copy of all existing contracts with
Eastern Motor Freight, Leaseway Transportation, High-
way Express and Tom Wilt.
I will furnish your office with a complete set of pro-
posals prior to our first meeting. I am free to begin ne-
gotiations the week of May 16th through May 20th,
1988 and May 23rd through May 27th, 1988. Looking
forward to meeting with you, I am.
Business Agent Atkins testified he did not seek to tele-
phone Holroyd prior to May 15 in an attempt to arrange a
meeting at which Respondent’s decision to contract out the
long-haul work or the effects of that decision on unit em-
ployees could be discussed.
It is undisputed that Respondent has not, to the date of the
hearing here, furnished the Union with the Eastern,
Leaseway, Highway Express, and Tom Wilt contracts re-
quested by the Union’s May 10 letter. Respondent failed to
indicate its reason for failing to furnish such requested infor-
mation during the course of the hearing. It is undisputed that
Respondent terminated its long-haul operations on May 13
when the remaining long-haul drivers were terminated.
The record reveals the parties first met on July 6, and that
they held four meetings. Atkins testified that the Union’s
proposals furnished to Respondent contained no provisions or
proposals which related to the Respondent’s decision to con-
tract out the long-haul work and no proposals were offered
concerning the effect of such action on the Respondent’s em-
ployees.
Atkins testified that at the August 2 negotiating session
(the third session), while work rules were being discussed,
Holroyd stated Respondent did not have any more over-the-
road operations—that was an issue that the courts would de-
cide. It is undisputed that, prior to the meeting in question,
Respondent had been notified that a district court hearing had
been I scheduled.14
Atkins testified that the Union made bargaining proposals
during the four bargaining sessions, the Respondent advanced
counterproposals, the parties had discussed the proposals, and
no agreements were reached.
The record reveals Respondent obtained advantageous
hauling rates after subcontracting the long-haul transportation
of petroleum products by leasing a number of its petroleum
trailers to smaller independent operators such as Tom Wilt
Trucking and P & L Enterprises. The trailers were leased for
nominal amounts such as $10 or $20 per month, with the les-
see assuming the obligation to insure and maintain them. The
record reveals Respondent continues to control the movement
of petroleum products as its dispatcher contacts the carriers
as they are needed to inform them were they are to obtain
product and were they are to deliver it.
Discussion and Conclusions
General Counsel Contends that the Supreme Court’s deci-
sion in Fibreboard Corp. v. NLRB, 379 U.S. 203, 224
(1964), establishes that the instant Respondent was legally
obligated to give the Union adequate advance notice of its
decision to subcontract the long-haul work of its employees
and it was legally obligated to bargain over the decision to
contract out as well as the effects of that decision on the em-
ployees. It argues Respondent failed to fulfill such legal obli-
gations.
815MOUNTAINEER PETROLEUM
While Respondent notified the Union of its decision to
contract out the long-haul work on April 28, it contends it
was not legally required to bargain over the decision to con-
tract the work because the work was contracted out purely
for economic reasons, and the Supreme Court held in First
National Maintenance Corp. v. NLRB, 425 U.S. 666 (1981),
that, when an employer decides to shut down part of its busi-
ness purely for economic reasons, the decision itself is not
a part of Section 8(d)’s ‘‘terms and conditions of employ-
ment.’’ Respondent further contends it gave the Union appro-
priate notice of its intention to shut down and contract out
the long-haul operation, and the Union waived its right to
bargain concerning the intended action because it failed to
ask Respondent to meet with it to discuss contracting out the
work, and it failed during the four negotiating sessions which
were held to request bargaining over the effects of Respond-
ent’s decisions.
Respondent’s reliance on First National Maintenance
Corp., supra, is misplaced. A similar claim was made in Col-
lateral Control Corp., 288 NLRB 308 (1988), and the Board
held Fibreboard Corp. v. NLRB, to be controlling, stating:
The issue presented here is whether, in order to es-
tablish the mandatory bargaining status of an employ-
er’s decision to subcontract unit work, the General
Counsel must sustain a burden of showing that the de-
cision turned on labor costs were ‘‘all that is involved
is the substitution of one group of works for another to
perform the same task in the same plant under the ulti-
mate control of the same employer.’’ We conclude,
under the Supreme Court’s decision in Fibreboard
Corp. v. NLRB, supra, as reaffirmed and explained in
First National Maintenance Corp. v. NLRB, 452 U.S.
666 (1981), that she does not. In the Board’s decision
interpreting First National Maintenance Corp.—Otis El-
evator Co., 269 NLRB 891 (1984)—the plurality stated
that, in evaluating the nature of a management decision,
‘‘the appellation of the decision is not important.
Fibreboard ‘subcontracting’ must be bargained not be-
cause the decision turns upon the label, but because in
fact the decision turns upon a reduction of labor costs.’’
269 NLRB at 893. . . . we find nothing in any of the
opinions expressed in Otis Elevator that would disturb
the principles of the Supreme Court’s decision in
Fibreboard.
In the instant situation, as in Fibreboard Corp., employees
in the bargaining unit were replaced with those of an inde-
pendent contractor to do the same work under similar condi-
tions of employment. The decision to contract out the work
did not turn on a change in the basic direction or nature of
the enterprise as the contractors continued to be dispatched
by Respondent to petroleum pickup points, and the petroleum
products were thereafter delivered to the Respondent’s facili-
ties involved here. Moreover, as the Respondent’s avowed
object was to accomplish the work at lesser costs, and Hinkle
admittedly opposed the Union because he felt unionization of
his operator would increase his costs, the decision was par-
ticularly amenable to resolution within the collective-bar-
gaining framework. In the circumstances described, I find
Respondent was required to bargain with the Union con-
cerning the decision to contract out the work as well as the
effects of that decision on unit employees. See NLRB v. Eltec
Corp., 870 F.2d 1112 (6th Cir. 1989).
I next turn to Respondent’s claim that by merely pro-
testing, but failing to seek to negotiate concerning the long-
haul contracting out issue, the Union waived its right to re-
quire bargaining concerning the decision to contract out and
the effects of that decision on unit employees.
In Kentron of Hawaii, 214 NLRB 834, 835 (1974), the
Board indicated:
[W]here an employer notifies a union of proposed
changes in terms and conditions of employment, it is
incumbent upon the Union to act with due diligence in
requesting bargaining.
In any given situation, all the facts and attendant cir-
cumstances must be considered to determine whether a union
acted with due diligence. The simple act of protesting does
not, standing alone, establish that a union acted with due dili-
gence if the facts reveal the employer remains ready to bar-
gain. Kentron of Hawaii, supra; Medicenter, Mid-South Hos-
pital, 221 NLRB 670 (1975).
In the instant case, the record reveals Respondent used
outside contractors to transport petroleum products from the
oil companies to its facilities and customers on only those
occasions when it could not accomplish the necessary trans-
portation of product with its own equipment and employees
prior to April 11, 1988. On the stated date, it altered its prac-
tice by commencing to sublet to contractors work which
would have normally been accomplished ‘‘in house.’’ After
such subcontracting reduced the hours of work of its own
long-haul drivers to a significant extent, it, on April 28, noti-
fied the Union it intended to contract out all long-haul trans-
portation work. In the meantime, it had unilaterally reduced
the hours of work of long-haul drivers, and it had laid off
mechanic Frame without giving the Union advance notice
and an opportunity to bargain concerning its decision to con-
tract out long-haul work and the effect of that decision on
unit employees.
The facts reveal the Union initially responded to Respond-
ent’s tardy notice that it would contract out the long-haul
work by protesting that the proposed action would violate the
Labor Act. On receipt of that message, the Respondent indi-
cated it viewed the Union’s action as an indication that it did
not desire bargaining over the decision or its effect on em-
ployees. The Union did not acquiesce. Instead, it replied it
needed more time, and it requested any contracts Respondent
had with named contractors. Thereafter, Respondent made no
attempt to supply the information requested, and it failed to
respond to the Union’s request for more time. Instead, it im-
plemented its decision on May 13 rather than May 15 by ter-
minating all its long-haul drivers. As a consequence, when
the parties finally met on July 6, the contracting out of the
long-haul work was a ‘‘fait accompli.’’ As noted, supra, Re-
spondent failed to establish that time was of the essence in
contracting out the work involved.
In the circumstances described, I am unwilling to find that
the Union waived its right to bargaining concerning Re-
spondent’s decision to contract out long-haul work or the ef-
fect of that decision on unit employees. I conclude the record
facts warrant an inference that the actual decision to contract
out the work under discussion was made at or near the time
816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the election results became known rather than at the end of
April as contended by Hinkle during his testimony. By the
time the Union was informed of Respondent’s intentions,
much of the long-haul work had already been contracted out,
and, in its May 10 letter to Holroyd, the Union clearly indi-
cated it wished to negotiate concerning subcontracting the
work. Significantly, Respondent simply ignored the request
for information contained in the May 10 letter, and pro-
ceeded to implement its decision on May 13, rather than on
May 15, without attempting to accommodate the Union in
any respect. The Union cannot be faulted for failing to raise
the matter when negotiations were eventually held almost 2
months after the decision was implemented as it was clearly
faced with a ‘‘fait accompli’’ at that time.
In sum, the facts set forth above cause me to conclude that
by initially subcontracting a portion of the long-haul work
normally accomplished with its own equipment and employ-
ees, without first notifying the Union and consulting with it,
thereby reducing the hours such employees worked and pro-
ducing a situation were mechanics Frame and Snyder were
expendable, Respondent violated Section 8(a)(1) and (5) of
the Act as alleged. Moreover, once notice of its decision to
close its long-haul operation completely had been given, it
engaged in further violation of Section 8(a)(1) and (5) by
failing to afford the Union an adequate opportunity to bar-
gain concerning the decision to close and its effect on unit
employees.
While paragraph 21 of the complaint alleges that ‘‘Since
on or about April 28, 1988, Respondent has failed and re-
fused to meet and bargain with the Union as the exclusive
collective-bargaining representative of both the Long Haul
Unit and the Short Haul Unit,’’ no evidence was offered to
support the general refusal to bargain allegation. As noted,
supra, the parties participated in four bargaining sessions
commencing July 6, 1988, and proposals and counter-
proposals were made and discussed but no agreement was
reached. In the circmstances described, I recommend that
paragraph 21 of the complaint be dismissed.
F. The Burden of Resuming Long-Haul Operations
Hinkle testified that Respondent divested itself of owner-
ship of all but one of the trucks used in its long-haul oper-
ations shortly after contracting out the long-haul work in
mid-May. He indicated so-called voluntary repossessions
were arranged with a company named Jimco and with P &
L Enterprises. Jimco obtained a blue General Tractor by
agreeing to assume Respondent’s indebtedness to the lender,
and P & L Enterprises obtained the red Mack, which had a
broken crankshaft after agreeing to repair it and making past
due and future payments. Additionally, Hinkle testified Jimco
started making payments on the orange General and was, at
the time of the hearing, attempting to negotiate a deal with
Duetche Credit for that truck. In addition to the tractor Jimco
was seeking to obtain through dealings with Duetche, he in-
dicated Duetche was seeking to repossess a tractor located in
a repair shop in Elkins, West Virginia, which was being held
by the shop pursuant to a mechanic’s lien.
While Hinkle claimed Respondent no longer owned or had
access to the tractors previously used in its long-haul oper-
ation at the time of the hearing, he indicated it still owned
the tank trailers which had been used in the long-haul oper-
ation. The record reveals that most of the trailers have been
leased to the contractors who are currently hauling petroleum
products to the three facilities involved in this proceeding. In
order to obtain a favorable haulage rate from the contractors,
Respondent leased the trailers to them for a nominal sum—
$20 a month being representative—with agreement the les-
sees would keep the trailer insured and maintain them.
Hinkle testified Respondent was continuing to experience
financial difficulties at the time of the hearing. He claimed
the net worth of the corporation at that time was a minus $7
million. He claimed Respondent is financially unable to re-
sume its long-haul operations because it has no working cap-
ital with which to buy or lease equipment and it cannot bor-
row funds. He indicated tractor insurance costs approxi-
mately $7000 per year per unit and license fees for each unit
amount to about $1500 per unit and that Respondent did not
have the necessary money and could not borrow it. In addi-
tion, he claimed he would be unable to maintain tractors be-
cause Respondent’s credit standing with parts suppliers is
poor and it was obtaining parts on a C.O.D. basis before the
long-haul operation was contracted out.
While General Counsel sought to show that Hinkle and his
brother owned a Chapter S corporation named Mountaineer
Marts, which Hinkle indicated had experienced a profit of
some $10,000 during its last fiscal year, Hinkle claimed Re-
spondent could not borrow money through the Mart’s Cor-
poration because he and his brother John would have to
guarantee any loans, and the banks they dealt with would not
lend them further moneys because of the financial condition
of Respondent. Finally, Hinkle claimed the independent car-
riers currently used by Respondent to accomplish long-haul
petroleum hauling charged Respondent $1.65 to $1.80 per
loaded mile and that Respondent is better off financially con-
tracting out the long-haul functions.
In Service Merchandise Co., 278 NLRB 185, 188 (1986),
the Board indicated its intention to continue to adhere to the
well-established principle that, in cases involving discrimina-
tory conduct, the restoration of the status quo ante is the
proper remedy unless the wrongdoer can demonstrate that the
normal remedy would endanger its continued viability.
In the instant case, Respondent claims it does not have the
operating capital or the credit standing required for the pur-
chase of tractors which would be needed if restoration of the
status quo ante of the long-haul operation is ordered. As in-
dicated, it further claims it does not have, and cannot bor-
row, the startup costs incurred with new tractors even if it
could obtain them as those costs approximately $7000 for
taxes and $1500 for insurance. Finally, it claims it had a
minus $7000 net worth at the time of the hearing, and that
it would not have the operating capital to maintain tractors
if it could obtain them.
The facts outlined above causes me to conclude that Re-
spondent has demonstrated that a status quo ante remedy
would endanger its continued viability. Accordingly, I here-
inafter recommend an alternative remedy.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By telling employees it would be futile for them to ob-
tain union representation, interrogating employees concerning
817MOUNTAINEER PETROLEUM
15 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
their union activities and sentiments, interrogating an em-
ployee concerning how he voted in a Board election, threat-
ening an employee with loss of employment if the Union
was voted in, telling a known union adherent he was trans-
ferred to the night shift because such action might cause him
to quit, telling an employee he was receiving fewer loads be-
cause he was union, and threatening to close its long-haul
operation because employees engaged in union activity, Re-
spondent violated Section 8(a)(1) of the Act.
4. By reducing the hours worked by long-haul drivers after
April 11, 1988, through the use of outside contractors; by
contracting out its long-haul operations and terminating its
long-haul drivers and mechanics; and by transferring an em-
ployee to night shift, all with an object of retaliating against
employees because they selected the Union as their bar-
gaining agent, Respondent violated Section 8(a)(1) and (3) of
the Act.
5. By subcontracting out long-haul bargaining unit work
without notice to or consultation with the Union and by fail-
ing, once it reached a decision to contract out all of its long-
haul work, to afford the Union an opportunity to bargain
over the decision and its effect on employees, Respondent
violated Section 8(a)(1) and (5) of the Act.
6. The Union is the exclusive collective-bargaining rep-
resentative of employees in the following appropriate units:
All full-time and regular part-time long haul drivers
employed by the Employer at its Buckhannon, Sutton
and White Sulphur Springs, West Virginia, facilities;
excluding office clerical employees and guards, profes-
sional employees and supervisors as defined in the Act.
All full-time and regular part-time short haul drivers
and mechanics employed by the Employer at its
Buckhannon, Sutton and White Sulphur Springs, West
Virginia, facilities; excluding office clerical employees
and guards, professional employees and supervisors as
defined in the Act.
7. Respondent has not engaged in any violations of the
Act not expressly found here.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found Respondent unlawfully reduced, through
subcontracting, the hours worked by employees Randall Al-
derman, James Warner, James Jenkins, and George
Winemiller during the period April 11 to May 13, 1988, and
having found Respondent unlawfully closed its long-haul op-
erations and terminated employees Randall Alderman, James
Warner, James Jenkins, George Winemiller, James
Schoolcraft, Henry Frame, and Joseph Snyder, I shall rec-
ommend that Respondent be required to make whole the em-
ployees whose hours of work were reduced through subcon-
tracting, and I shall recommend that Respondent be required
to offer reinstatement to each of the discriminatees termi-
nated by either (1) reinstituting its long-haul operations and
offering reinstatement to each of the discriminatees to his
former position or, if such position no longer exists, to a sub-
stantially equivalent position, without prejudice to his senior-
ity or other rights and privileges previously enjoyed or (2)
offering reinstatement to each discriminatee in any position
in its existing operations which he is capable of filling, giv-
ing preference to the discriminatees in order of seniority; and
in the event of the unavailability of jobs sufficient to permit
immediate reinstatement of all the discriminatees, place those
for whom jobs are not now available on a preferential hiring
list for any future vacancies which may occur in jobs the
discriminatees are capable of filling. In addition, I shall order
the Respondent to make the discriminatees whole by paying
each of them a sum of money equal to the amount that
would have been earned as wages from the date of termi-
nation to the date the discriminatee either secures equivalent
employment or the Respondent makes an offer of reinstate-
ment, computed in accordance with the Board’s usual for-
mula set forth in F. W. Woolworth Co., 90 NLRB 289
(1950). Interest on backpay due will be computed in accord-
ance with New Horizons for the Retarded, 283 NLRB 1173
(1987), except that interest accruing before January 1, 1987,
shall be computed under Florida Steel Corp., 231 NLRB 651
(1977).15
Having found that Respondent violated Section 8(a)(5) of
the Act by subcontracting out long-haul bargaining unit
work, without notice to or consultation with the Union, and
by failing, once it reached a decision to contract out all of
its long-haul work, to afford the Union an opportunity to bar-
gain over the decision and its effects on employees, I shall
recommend that Respondent be ordered to give the Union
appropriate advance notice of any decision to contract out
long-haul bargaining unit work, and that it be ordered to bar-
gain in good faith concerning any such decisions and the ef-
fect of same on bargaining unit employees.
On these findings of fact and conclusions of law and on
the record as a whole, I make the following recommended16
ORDER
The Respondent, J. D. Hinkle & Sons, Inc. t/a Moun-
taineer Petroleum, Buckhannon, West Virginia, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees it would be futile for them to obtain
union representation.
(b) Interrogating employees concerning their union activi-
ties and sentiments.
(c) Interrogating employees concerning how they voted in
a Board election.
(d) Threatening employees with loss of employment if
they vote the Union in.
(e) Telling known union adherents they are being trans-
ferred to the night shift because such action might cause
them to quit.
(f) Telling employees they received fewer loads because
they are union.
(g) Threatening to close its long-haul operations if its em-
ployees chose to be represented by the Union.
(h) Discouraging membership in, or activities on behalf of
Teamsters, Chauffeurs and Helpers Local Union No. 175, or
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
any other labor organization by reducing the hours of work
of employees through subcontracting, transferring employees
to the night shift, terminating employees and closing business
operations, or otherwise discriminating against employees in
any manner in respect to their tenure of employment or any
term or condition of employment in violation of Section
8(a)(1) and (3) of the Act.
(i) Failing and refusing to give the Union appropriate ad-
vance notice of its intention to subcontract long-haul unit
work and failing to afford the Union an opportunity to bar-
gain over decisions to subcontract unit work and the effect
of such decisions on employees.
(j) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole Randall Alderman, James Warner, James
Jenkins, and George Winemiller for losses they sustained
when their hours of work were reduced through subcon-
tracting during the period April 11 to May 13, 1988, in the
manner set forth in the remedy section of the decision.
(b) Offer Randall Alderman, James Warner, James Jen-
kins, George Winemiller, James Schoolcraft, Henry Frame,
and Joseph Snyder reinstatement by either (1) reinstituting its
long-haul operations and offering reinstatement to each of the
discriminatees to his former position or, if such position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges pre-
viously enjoyed or (2) offering reinstatement to each
discriminatee in any position in its existing operation which
he is capable of filling, giving preference to the
discriminatees in order of seniority; and in the event of the
unavailability of jobs sufficient to permit immediate rein-
statement of all the discriminatees, place those for whom
jobs are not now available on a preferential hiring list for
any future vacancies which may occur in jobs discriminatees
are capable of filling, and making such discriminatees whole
for losses suffered as a result of the discrimination against
them in the manner indicated in the remedy section of the
decision.
(c) Notify Teamsters, Chauffeurs and Helpers Local Union
No. 175, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO, when le-
gally required, of any decisions to subcontract bargaining
unit work and afford it, on request, adequate opportunity to
bargain concerning such decisions and their effect on bar-
gaining unit employees. The appropriate bargaining units are:
All full-time and regular part-time long haul drivers
employed by the Employer at its Buckhannon, Sutton
and White Sulphur Springs, West Virginia, facilities:
excluding office clerical employees and guards, profes-
sional employees and supervisors as defined in the Act.
All full-time and regular part-time short haul drivers
and mechanics employed by the Employer at its
Buckhannon, Sutton and White Sulphur Springs, West
Virginia, facilities; excluding office clerical employees
and guards, professional employees and supervisors as
defined in the Act.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necesary to analyze the
amount of backpay due.
(e) Post at its Buckhannon, Sutton, and White Sulphur
Springs, West Virginia facilities copies of the attached notice
marked ‘‘Appendix.’’17 Copies of the notice on forms pro-
vided by the Regional Director for Region 6, after being
signed by Respondent’s authorized representative, shall be
posted by Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places, includ-
ing all places were notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to en-
sure that the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.