New England Bituminous Terminal Corp.

National Labor Relations Board - Board Decisions

Nov 7, 1972

200 N.L.R.B. 32 (N.L.R.B. 1972)

32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New England Bituminous Terminal Corporation and
Local Union No . 251, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Help-
ers of America . Case 1-CA-7861
November 7, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On June 16, 1972, Administrative Law Judge' John
M. Dyer issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge except
as to the alleged 8(a)(1) interrogation. The Board
finds, in accord with the General Counsel's excep-
tions, that the facts as set out by the Administrative
Law Judge, with respect to Respondent's interroga-
tion of Saucier on July 28, warrant finding that
interrogation to be violative of Section 8(a)(1).2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
New England Bituminous Terminal Corporation,
Providence, Rhode Island, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees or appli-
cants for employment about their union activities or
those of other employees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their Section 7 rights.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its location at Providence, Rhode Island,
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 1, after being duly
signed by Respondent's authorized representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
E Inasmuch as Saucier was seeking reemployment from President
Hudson at the time of Hudson 's postdischarge interrogation of Saucier as to
employees ' union activity , we find , contrary to the Administrative Law
Judge, that such interrogation was violative of Sec . 8(a)(1) Augusta
Chemical Company, 83 NLRB 54, 74, In 47.
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the 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."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully interrogate any
employees or applicants for employment about
their union activities or those of other employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their Section 7 rights to self-
organization, to join or assist Local Union No.
251, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, to
bargain collectively through representatives of
their own choosing, to engage in concerted
activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain
from any and all such activities.
NEW ENGLAND
BITUMINOUS TERMINAL
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 7th Floor, Bulfinch Building, 15 New
200 NLRB No. 7
NEW ENGLAND BITUMINOUS TERMINAL CORPORATION 33
Chardon Street, Boston, Massachusetts 02114, Tele-
phone 617-223-3300.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Trial Examiner: On September 13,
1971,1 Local Union No. 251, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein referred to as Local 251, the Union, or the
Charging Party, filed the instant charge against New
England Bituminous Terminal Corporation, herein re-
ferred to as the Company, the plant, the terminal, or
Respondent, alleging that the Company had violated
Section 8(a)(1), (3), and (5) of the Act. The Union had
previously filed a charge on August 18 in Case l-CA-7814
alleging violations of Section 8(a)(1) and (3), but this case
was withdrawn when the instant charge was filed. Prior to
the filing of the instant charge Respondent had filed a
representation petition in Case 1-RM-811 seeking an
election for a production and maintenance unit at the
Company. Following some delay while the instant case was
being investigated the RM petition was dismissed and the
Regional Director on December 16 issued a complaint in
this matter alleging, in addition to the jurisdictional and
service allegations, that Respondent had violated Section
8(a)(1) of the Act by discharging Wilfred Saucier on July
27, by refusing to reinstate three alleged unfair labor
practice strikers on August 25, and by its interrogation of
Saucier on July 28.
Respondent in its answer denied that it was engaged in
commerce within the meaning of the Act, admitted that it
discharged Saucier on July 27, but stated it was for just
cause, and denied that the employees had engaged in a
strike to protest Saucier's discharge, or that John J.
Hudson, president of Respondent, had unlawfully interro-
gated Saucier.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally
at the hearing held in Providence, Rhode Island, on March
16, 17, and 30, 1972. Briefs have been received from
General Counsel and Respondent and have been fully
considered.
The questions to be resolved in this case depend on the
answer to the first question, which is whether Respondent
discharged Saucier for cause or whether Respondent was
motivated at least in part because Saucier assertedly
engaged in protected concerted activities. Dependent on
the answer to this question are two more questions, first
whether the strike engaged in by the employees starting on
July 29 was an unfair labor practice strike or an economic
strike, and second whether John J. Hudson engaged in
unlawful interrogation of Saucier on July 28, the day after
Saucier's discharge.
In resolving these questions it has appeared that both
Respondent and General Counsel's witnesses in certain
instances tended to exaggerate their testimony. However
there appear to be more inconsistencies and discrepancies
in General Counsel's case and there are some independent
facts which fit more naturally into and are corroborated by
Respondent's defense. I have concluded that although
there may be some doubt, it cannot be found that Saucier's
discharge was predicated at least in part on any of his
alleged concerted activities.
On the entire record in this case including my evaluation
of the reliability of the witnesses based on the evidence
received and my observation of their demeanor, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT AND THE UNION
It was stipulated that John J. Hudson, together with a
different other stockholder in each instance, owns John J.
Hudson, Inc., and New England Bituminous Terminal
Corporation. John J. Hudson, Inc., annually imports into
the State of Rhode Island, liquid asphalt products valued
in excess of $50,000, which products are stored in the tanks
of New England Bituminous Terminal Corporation and
are released from that corporation at the order of John J.
Hudson, Inc., for its own use or upon its sale to other users.
For its warehousing of the liquid asphalt products New
England Bituminous Terminal Corporation annually re-
ceives fees from John J. Hudson, Inc., in excess of $50,000.
It was further testified that between 50 and 52 million
gallons of liquid asphalt annually flow through Respon-
dent's tanks.
I find that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
Respondent admits and I find that the Union herein is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
Until 1955 John J. Hudson, herein referred to as Hudson
or J. J., was a member of the Union and presumably a
truckdnver hauling asphalt. He organized John J. Hudson,
Inc., herein called Hudson Co., in October 1955 to import
and sell liquid asphalt products in Rhode Island. In 1962
Respondent was formed to warehouse the liquid asphalt.
Two of Hudson's brothers work for Hudson Co., one of
them, Thomas, is a union member who drives a truck and
the other brother, Frank, works at the Hudson Co. plant.
Hudson Co. has a contract with the Union and has had
since it was organized in 1955. Hudson Co. and Respon-
dent are located a short distance apart and there is a direct
telephone line between their offices. J. J. retains direct
control over both companies and gives orders at Respon-
dent through Walter S. Miller who is Respondent's
manager and engineer and through Lionel Howkins whom
Hudson described as a leadman or straw boss. Prior to
1970 when Miller was added to the staff, Lionel Howkins
was the only person with any supervisory indicia present at
Respondent since Hudson, Brosseau , et al., have their
offices at Hudson Co.
Robert Brosseau and Frank Hudson work at Hudson
I Unless stated otherwise all dates refer to 1971
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Co. but in J . J.'s absence first Brosseau and then Frank
Hudson are in charge of Respondent . The chain of
authority then goes to Miller and Howkms. Due to the
status that Howkms held prior to Miller 's advent there was
some disagreement as to their relative status when Miller
was added . Miller was finally made responsible for the
plant and the engineering, and the assignment and
scheduling of the men was handled between Hudson and
Lionel Howkins.
Before a timeclock was installed at Respondent, How-
kins kept the time for the men . If a man neglects to punch
in or out Howkins may initial his timecard to indicate the
man's actual workhours and the individual 's pay is based
on this certification . Any job hazards are to be reported
either to Miller or Howkins , both of whom have night
telephones . Hudson testified that a shift man in the event
of trouble can call Hudson or another of the supervisors
whose names and phone numbers are on a list in
Respondent 's office . If assistance in machinery procedure
was needed , Howkins would probably be called.
The plant is basically a three -shift operation during the
"season ," which runs from late February to almost
Christmas time . From around Christmas until late Febru-
ary the plant is closed down and maintenance work is
performed on a one-shift basis . During this period the
Company accepts suggestions from employees for im-
provements , and maintenance work which could not be
performed during the "season" is accomplished. During
the "season" a three-shift operation is maintained, the
furnace used to heat the liquid asphalt is turned off on
Saturday afternoon and is restarted Sunday evening with
the plant essentially shut down Saturday night through
Sunday afternoon.
The plant is located on the riverfront near Providence
and consists of a 4-acre site. In addition to the office there
are some 10 or 11 tanks of varying sizes which contain
liquid asphalt . Two of the tanks, Nos. 7 and 8, are
overhead tanks from which liquid asphalt is loaded into
truck tank trailers. These two tanks each have a capacity of
around 200 ,000 gallons of liquid asphalt . Respondent
prides itself in being able to weigh in , load, and weigh out a
tank truck in some 13 minutes . In order to move the liquid
asphalt it is maintained at a rather high temperature,
ranging upwards of 300 degrees . A system called a "hot oil
transfer system" is used and hot oil runs through miles of
pipe warming the asphalt to keep it mobile . Respondent
has some insulated tanks which it attempts to keep filled
with heated liquid asphalt . The asphalt is pumped from
these to the overhead tanks from which the tank trailers are
filled . If hot liquid asphalt is received from a carrier, it may
be pumped directly from an unmsulated tank to the
overhead tanks since its temperature may be fairly high.
The insulated tanks allow Respondent to keep a reserve of
heated liquid asphalt to be transferred to the overhead
tanks . Respondent receives liquid asphalt from boats and
barges from which it is pumped directly to its storage
tanks.
The whole system is heavily automated but there are a
number of valves, pumps , and gauges to be watched. The
system is such that packing glands in the various valves
start to leak after a short time unless they are continually
tightened or repacked . Spillages from valves or from tank
trailers being loaded , are sanded so that the liquid asphalt
is not tracked all over the lot. Heat gauges on each of the
tanks must be viewed on occasions during the shift to see
that they stay within a normal heat range since if the
material gets too hot it may burst into flame, as one storage
tank did several years ago . Because of the flammable
nature of the business fire extinguishers are maintained
throughout the plant and a foam system has been installed.
Since the plant is automated the 4 to 12 p .m. shift and
the 12 to 8 a .m. shift are usually run by one man. On the
day shift, Miller and Howkins , are usually present, plus
shift men and helpers.
There is some conflict as to how often Hudson visits the
plant , but whether it was several times a week or a day
there is agreement that he was on the phone to the plant
frequently.
Howkins assigned men to their work tasks and set up the
schedules with Hudson's approval . He is the only one who
works a 7:30 to 5 p .m. shift which overlaps all three shifts.
The other men work an 8-hour shift so that Howkms is at
the plant to check on what happened on the third shift, is
there for the first shift and remains at the plant for the first
hour of the second shift . The orders for the succeeding
shifts are given directly to the second -shift man and passed
verbally or by a note to the third -shift man from Howkins.
Two log books were kept , one which logs any actions taken
at the plant , including the pumping from tank to tank and
the conditions of the furnace . The other log book concerns
the truck tank trailers which were loaded at the plant. Tank
trailers are weighed when they come into the plant, are
loaded, and weighed out after loading . Weight tickets are
signed by the truckdnvers with the amounts of the asphalt
loaded and the tickets are computed by the lab man the
following day.
With some slight exception it seems agreed that the
duties of a shift man are to fill the proper tanks, check
gauges and heat gauges in the yard and on the tanks
themselves , check valves , maintain the yard , sanding or
picking up spillages, and cleaning and maintaining the
office . It was only during the latter stage of the hearing that
Saucier stated for the first time that he had been told a
man was coming in on Saturday to wash and wax the
floors in the office . All the other testimony was that the
shift man was to clean and maintain the office and
lavatory on each shift . This latter testimony from Saucier
would appear to confirm that he had not cleaned the office
or the lavatory the night of July 23-24, and that as others
testified the plant was dirty with the trash cans overflow-
ing.
B. Wilfred Saucier's Discharge
Saucier applied for work at Respondent in September
1970, while he was employed as a driver-salesman for the
Pepsi-Cola Company and delivered Pepsi -Cola to Hudson
Co. and Respondent . After completing an application he
was sent by Hudson to be interviewed by Miller. Miller
recommended he be hired as a shift trainee and Hudson
approved. Saucier started to work in October 1970 and
worked through the winter . In the springtime he told Miller
he felt he was qualified to operate a shift and Miller
NEW ENGLAND BITUMINOUS TERMINAL CORPORATION 35
agreed, but before Miller could speak to Hudson about it
Saucier approached Hudson and asked to be moved to a
shift and his pay raised. He was put on as a shift man at an
increase in pay.
Saucier testified that during lunchtime in January when
most of the men were eating together at the office and
while Howkins was present, it was mentioned that they
wouldn't have problems if they had benefits like the drivers
at Hudson Co. had. According to Saucier, Howkins said
that if they mentioned union around there they, would be
fired. Saucier later admitted that according to his affidavit
this conversation occurred in December 1970. Saucier
testified that in April the subject of union came up at lunch
and again Howkins said that if they talked union around
there they could be fired.
As to his complaints concerning conditions at the plant,
Saucier testified that he complained to Howkins regarding
the size of the bathroom about I month before his
discharge and had complained to Howkins about leaking
seals in the pump area about 2-1/2 months before his
discharge. He said he spoke to Howkins in regard to the
pay of a fellow employee, Santos, who had been hired in
April. Santos told Saucier he didn't understand his pay rate
and Saucier asked Howkins about it. Howkins said Saucier
had told him Santos didn't understand his pay rate and
testified he had taken the matter up with Hudson and
provided Santos with the answer directly.
Saucier testified that the men complained to him about
various other subjects and he in turn complained to
Howkins about them.
A fellow employee, McCann, testified that he com-
plained to both Howkins and Saucier about the lighting at
the top of the tanks. He testified he talked to Saucier about
this and other things because Saucier did a lot of talking
and complaining for everybody. McCann testified that he
also talked about his complaints to another employee,
Richey, and to Howkins as well.
The only other predischarge complaint which Saucier
could remember concerned Respondent's hospitalization
benefits. When his daughter was injured, he asked
questions about how to get the benefits and was referred
by Howkins and by Brosseau to the insurance carrier. He
said he had received meager benefits. He did not testify
that prior to his discharge he complained to Howkins or to
any respondent official concerning any inadequacies of
Respondent's hospitalization plan.
On July 23 and 24, Saucier was scheduled to work a
double shift, the 4 p.m. to 12 shift on July 23 and the 12 to
8 a.m. shift on July 24. He had bought a camper and had it
with him at work that evening. According to Saucier he
spent about 15 minutes during his first shift painting the
roof of the camper, stating he had received permission
from Howkins to do so and that he only did so after he had
caught up the work at the plant. According to Saucier,
Tom Hudson, J. J.'s brother, came to the plant twice
during his two shifts, once while he was painting the top of
the camper and a second time while he was eating lunch
after midnight in the plant office.
J. J. testified that he became suspicious of Saucier's
work in May and felt that his quality and attitude were
declining. He testified that Saucier and McDonald, the
man who regularly followed Saucier on his shift, were not
getting along and that on two occasions the furnace had
been left by Saucier in an inoperable state so that
McDonald couldn't start it. Saucier did not dispute that he
and McDonald did not get along . J. J. used the term
"sabotage" and said he was not satisfied with the
explanation given about why the furnace would not start.
Saucier testified on rebuttal that if there was some problem
with the furnace and the flame eye was removed, it was
possible for someone to knock the ignition wire loose from
the spark plug in the furnace and it would not be noticed.
The explanation Saucier provides does not quite meet the
problem which bothered Hudson that the furnace was
inoperable when it was to start up. In any event Hudson at
the end of May asked his brother Tom to engage in
surveillance of Saucier's work and his method of stopping
the furnace on Saturdays. Tom Hudson testified that he
made it a practice of dropping in on Saucier at the plant
particularly when the furnace was being shut down on
Saturdays.
Tom Hudson testified that on the evening of July 23 he
pulled into the plant in a car early during the second shift
and saw Saucier up on a stepladder painting the top of his
camper. He stayed there and talked to Saucier some 10 or
15 minutes, during which time Saucier continued to paint
his camper. Tom Hudson stated he left in his borrowed car
and returned to the terminal some 3-1/2 hours later around
10:30 p.m. driving a pickup truck. He testified that when
he entered the plant no one was around and he looked for
Saucier to help him unload some steel which was in the
back of the truck. Finally he went to the camper and
looked inside and found Saucier inside with a rod of some
type in his hand. He got Saucier to help him unload the
steel and left. He returned about 1:30 a.m. and Saucier
who w's in the office drinking some tea, asked if he wanted
some and he said no, drank a bottle of pop and left after a
half hour. He stated that at that time the office was dirty,
with the wastebasket overflowing.
Tom Hudson met his brother J. J. the following morning
around 10 a.m. and reported what he had seen at the
terminal the previous evening, stating it appeared to him
that Saucier had spent most of the shift working on his
camper.
Ralph Richey followed Saucier and was on the 8 a.m. to
4 p.m. shift on Saturday, July 24. During that day Hudson
called Richey and asked about the condition of the office
and the amount of work Saucier had done. Richey told
Hudson that the office had been left dirty and that he had
to pump for 6 hours to fill No. 5 tank.
Hudson testified that he decided over that weekend to
discharge Saucier but was out of town on Monday and on
Tuesday called Howkins and told him to discharge Saucier
when he came to work. Hudson testified that he did not
discharge Saucier though he worked on Sunday because it
would have been very difficult to find a replacement for
him on Sunday.
As Saucier drove into the plant to go to work on
Tuesday, July 27, at 4 p.m., he was met by Howkins who
told him he was discharged. According to Saucier,
Howkins said he didn't know why but had told Hudson
Saucier was one of his best men. Saucier left and went to
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Hudson Co. offices but Hudson was not there, and he
was told by Frank Hudson to leave and to come back later
to see Hudson . On Wednesday, July 28, Saucier met with
Hudson at his office.
Saucier said he asked Hudson why he was fired and
Hudson replied that he didn't need him running his plant,
that he had other people to do that. Saucier asked what he
meant and Hudson told him to go home and think about it.
Saucier said he would like to get it ironed out and Hudson
said , "think about it, you're always bitching." Saucier said
about what, and Hudson said , "you think about it ." At that
Saucier mentioned a number of things he said he brought
to management 's attention through Howkins such as
inadequate hospital policy, hazardous conditions, fires
being unreported, fire extinguishers not being available or
being empty, complaints about the latrine facilities being
inadequate , and asked whether it was those things or
because of his union activities. In respect to the hospitali-
zation policy, he stated that Hudson called in Brosseau,
asked what was wrong with the policy, and told Brosseau
to get the best one that he could. Saucier testified that on
his next visit Hudson gave him a Blue Cross application
and said it was being installed at the Company.
Regarding the Union, he said Hudson wanted to know
why they wanted a umon . Saucier said they wanted a umon
for better pay and benefits and improved working
conditions . He said Hudson asked who was involved,
whether any of the drivers or the union steward from
Hudson Co. had talked to the men about it , and whether
Hallberg or other individuals were involved . Saucier said
Hudson told him he wouldn't discharge anyone else, and
he told Hudson that it was McCann who had solicited him
to join the Union. He asked Hudson if he could go back to
work and Hudson told him to come back later, he was
going to check into the information Saucier had given him.
Saucier 's testimony on the sequence of events and dates
was somewhat erroneous . He said that after this first
session with Hudson he returned the following day (July
29) and Hudson said he hadn 't checked things out and told
him to return the following day (July 30) but gave him a
Blue Cross card, telling him to fill it out so if he came back
to work he would be covered. After several changes in
dates Saucier testified that it was in the afternoon of July
28 that he returned , and Hudson gave him the Blue Cross
card. This testimony seems too pat since the two visits with
Hudson occurred in the morning and afternoon of the
same day. It seems highly unlikely that a complete
hospitalization program would be brought in and applica-
tions distributed and the old plan discarded in a matter of
two or three hours considering that it is a group program
and there would have to be information obtained and a
contract negotiated and prepared.
I credit the testimony of Brosseau that the Company had
been negotiating with Blue Cross for some time on the
installation of a program and that agreement was reached
a week or more before Saucier 's discharge. It is felt that
Saucier is reaching to claim credit for the initiation of this
program in an effort to make himself appear as the
spokesman of the employees. It is possible that he believes
so, but I cannot credit him with this and feel his
"spokesmanship" is overdrawn and not to be believed.
Hudson's version of the postdischarge interview is
different . He testified that Saucier asked why he was
discharged and whether he could have his job back.
Hudson told him he knew why he was discharged and
could not have his job back . Saucier pleaded for his job
and started telling Hudson about the inadequacies of the
terminal employees such as Miller and Howkins not
getting along ; that laboratory employee Hallberg fooled
around a lot and wasn't doing his job; that Santos had
worked for a week on his shift and was not a willing
worker ; that Seleyman was illiterate and couldn 't read the
papers and could not make out a ticket or decipher proper
tickets and shouldn't be employed there ; and that Roland
Anderson was worthless , didn ' t do his work , and wasn't
capable of keeping his end up . According to Hudson,
Saucier added that McCann really couldn 't handle a shift
and should be rotated despite his having problems with his
leg; that Howkins was not keeping up plant repairs
properly and wasn't reporting fires, and that there were a
number of fire hazards that hadn't been checked . Hudson
said that when Saucier asked why he was fired he replied
that Saucier knew exactly why he was fired , and when
Saucier said he didn't know that he told him it was because
Saucier had been working on his camper . Saucier said he
had permission from Howkins to work on the camper and
use the paint . Hudson told Saucier that Howkins couldn't
give him permission , had no right to do so, and he didn't
appreciate Saucier's working on a camper when he should
have been doing his work , and that he had been observed
during the night working at great length on his camper and
not performing his duties . He told Saucier he had not
cleaned the restrooms , done any of the housekeeping,
emptied any baskets, or done anything else that he was
supposed to do . He added that he had checked and Saucier
had not performed his work in that it had taken Richey
some 6 to 6- 1/2 hours on the following day to fill tank No.
5 which Saucier should have done . Hudson said he told
Saucier to come back that afternoon or the following day
because he wanted a chance to look at the log and check
Saucier's claims and see whether the plant and the
employees were as inadequate as Saucier had described.
Hudson did not recall giving a Blue Cross form to Saucier.
Saucier did not report back on July 29 since a picket line
went up that day and Saucier after talking to Shalpak, the
union representative, started to picket. Hudson had no
recollection of any discussion with Saucier about the
Union during the conversation on July 28. Hudson said he
had never had any complaints from Saucier concerning
any sanitary , health, or safety conditions prior to this
conversation with him and that he had never received any
complaints about such from Saucier through Howkins.
Howkins testified that if someone complained to him
about plant conditions he would give them his standard
reply to take it up with the boss , J. J. Hudson , except when
the complaint interested him in which event he would
personally take it up with Hudson. Howkins testified that
Saucier did bring Santos ' problem concerning his pay to
him and that he personally investigated it and gave the
answer to Santos.
The General Counsel asked some questions during cross-
examination which would indicate that the Company did
NEW ENGLAND BITUMINOUS TERMINAL CORPORATION
not expect too much work out of night men. Howkins
stated that Hudson insisted that if the men were to get 8
hours' pay they were also to do 8 hours' work, and said
there was always work to do in cleaning up, packing valves,
tightening valves, checking gauges, cleaning the office, or
cleaning the exterior.
One other question asked by General Counsel indicated
that a ship was expected in with hot asphalt and that for
that reason Saucier had not filled up tank No. 5. The
testimony, however, was that a ship had already been in
and left and that there was hot asphalt in tank No. 4 which
was umnsulated. Saucier testified that he had had
instructions from Howkins not to fill tank No. 5, that his
relief, Richey, could do so on the following day. Howkins
disputed this testimony and stated that the standing orders
were always to fill the overhead tanks, Nos. 7 and 8, and to
fill the insulated tanks, such as No. 5 with hot asphalt so
that the matenal would be kept hot over the weekend for
the following Monday and in that way they would have a
jump on the work by having the matenal hot.
Saucier's testimony appears to be illogical. It does not
make sense to leave hot material in an uninsulated tank to
cool off when it could be pumped into an insulated tank
and its heat level maintained higher than if it had been left
in an uninsulated tank. Further, it would seem that the
Company would be busier filling tank trucks during the
daytime than it would on either the 4 to 12 or 12 to 8 shifts,
when Saucier was working. The log shows that Saucier had
plenty of time to have filled No. 5 tank from the
uninsulated No. 4 tank on either of his shifts and not left it
for Richey to do the following day.
Howkins denied leaving the orders Saucier ascribed to
him. Howkins also denied ever giving permission to
Saucier to paint his camper or do anything other than the
normal work expected at Respondent. In his original
testimony Saucier had testified that he had filled his tanks
up before shutting off the pumps. This in essence was not
true since he had not filled up No. 5 tank.
It is impossible to tell from the log exactly how much
work a person performed on a shift since a lot of the work
is not logged because it is routine. It is possible to tell what
work was not done on a shift from the log. For instance it
is possible from the log to tell that the No. 5 tank was left
about three-quarters full and was not filled as Saucier
admits since it took some 6 hours on the following shift for
Richey to fill it.
I do not credit Saucier's claim that he was told not to fill
No. 5 tank because it makes no sense for him not to do so
when from the log and his doing personal work, he had
sufficient time to do so and it is contrary to common sense
to leave heated matenal in an uninsulated tank which
could have been pumped into an insulated tank. If the
material in No. 4 tank had still been hot enough on
Monday it could have been pumped to the overhead tanks
while the heated material in No. 5 tank was held in reserve
and less work from the furnace would have been needed.
On July 29 when he got to Respondent, Saucier found a
picket line and was told not to bother entering the plant
since Union Representative Shalpak had already seen
Hudson about the dischargees' jobs. Saucier, after waiting
a short while, was told by Shalpak that he had seen
37
Hudson that morning and that Hudson was not going to
put any of the men back to work and that the only way
Saucier could possibly get his job back was to join the
picket line and picket for his job.
Although the testimony is in some conflict, it appears
that there is more internal contradiction in the testimony
from Saucier than there is in the testimony from Respon-
dent. For example, using copies of the log which were kept
by Saucier on the evening of July 23 and the morning of
July 24, it appears that he pumped from No. 4 tank
(umnsulated) to overhead tank Nos. 7 and 8 for a total of 2
hours and 45 minutes. He did no pumping whatsoever after
that time, so that there was no pumping at all on the 12 to 8
a.m. shift but merely the loading out of five tank trucks
from Nos. 7 and 8 overhead tanks. Richey, who followed
Saucier, filled tank Nos. 7 and 8 and may have filled some
tank trucks. He also pumped for 6 hours from No. 4 tank
to No. 5 tank.
Saucier appeared to be the only one to testify that there
was no standing instruction to keep No. 5 tank filled
because it is insulated and would retain the heat of the
liquid asphalt. Asphalt cannot be discharged or moved
unless it is kept at a high temperature. Therefore, it is
necessary to heat it or keep it heated in order to discharge
it. Respondent had received a shipload of liquid asphalt, a
portion of which was in uninsulated tank No. 4. It would
appear to be not only commonsense but in violation of
what the others testified to were standing orders, not to
keep No. 5 filled since it was insulated and could retain the
heat. It does not appear from the testimony to be necessary
to stand by a pump for the whole 6 hours while the
matenal is being transferred. No reason is apparent other
than Saucier's claimed orders from Howkins why Saucier
did not fill No. 5 tank on his shift. As indicated I do not
credit his testimony that he was told not to pump to No. 5
tank and that Richey could do it on the following shift.
The fact that Saucier did not bother to fill No. 5 tank
under what Hudson said were standing orders, would
appear only to confirm Hudson's suspicions and the report
of his brother Tom that Saucier spent at least most of one
shift working on his camper.
I credit the testimony of Tom Hudson that he visited the
terminal three times during the two shifts on July 23 and
24. Hudson appeared to make an effort to adhere to what
he had observed, although on one occasion during his
testimony he gave his impression but when challenged on it
reported the facts on which he based it. I cannot say the
same in all events for Saucier who appeared to have
trouble on some occasions remembering when certain
events took place and their sequence and appeared to me
to attempt to stretch the facts to give an impression that he
was the spokesman for the employees.
The situation which faced Hudson on Saturday, July 24,
was that he had a report from his brother, Tom, that
Saucier had apparently wasted most of his time on at least
one shift doing personal work on his camper, since,
according to Tom Hudson, he found Saucier painting the
camper once and working or being inside of it on a second
visit. The log appears to back up this report in that the
standing instructions to fill No. 5 tank were not followed
necessitating Richey's pumping some 6 hours to fill the
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tank on the following shift . Hudson also checked with
Richey on the condition of the office and Tom's report that
it was dirty was again confirmed . Hudson had been
suspicious of Saucier since May , noting that Saucier wasn't
getting along with the man following him on the shift and
suspecting that Saucier had left the furnace inoperable on
two occasions . With these prior suspicions and the
evidence of little work done on the double shift , Hudson
decided to discharge Saucier . He did not discharge him on
Sunday, stating that it would be hard to find a replacement
on that day . Hudson was gone on Monday and on Tuesday
gave instructions to Howkins to discharge him without
even telling Howkins the reason why. Respondent's
defense as credited presents good grounds for the dis-
charge . The question remaining is whether the discharge
was based solely on these grounds or whether Saucier had
engaged in concerted activities of which Hudson was
aware and if that was one of the reasons for his discharge.
Saucier 's claimed complaint activities did not include
any direct complaints to Hudson or Miller but consisted
solely of some statements to Howkins . As he recounted
them , Saucier had talked to Howkins about the size or
condition of the bathroom about a month prior to his
discharge and about leaking seals in the pump area about
24/2 months prior to his discharge . He also spoke to
Howkins about Santos' pay problem . This latter point
Howkins acknowledged and stated that he had procured
an answer from Hudson and given it directly to Santos.
Saucier did not specify any other complaints but stated
that in either December or January and again in April
during lunchtime conversation about general conditions,
Howkins said that talk about a union could lead to
discharge . One of the General Counsel 's witnesses testified
that he had complained to Miller , Howkins, and Saucier
about inadequate lighting on one of the tanks which was
later fixed but there is nothing to show other than this
statement and Santos ' complaint about his pay that Saucier
was ever regarded as any type of spokesman for the men in
complaining to management about their problems. Indeed,
this appears more in the nature of conversation among
employees regarding conditions than a complaint to a
spokesman . These complaints by Saucier 's admission were
somewhat remote from the time of his discharge. There is
no evidence that any of these complaints went beyond
Howkins to Miller or Hudson or that Hudson or Miller
ever heard of them . Hudson specifically denied hearing
from Howkins or Miller that Saucier was complaining on
behalf of the men and it was Hudson's sole decision to
discharge Saucier without conferring with either Howkins
or Miller.
Hudson did acknowledge that during the conversation
on July 28, after he told Saucier that he was discharged and
to think about what he did , that Saucier mentioned a
number of things and complained about a number of the
men and their inadequacies . Hudson acknowledged hear-
ing these complaints from Saucier but not any others.
Hudson told Saucier that his discharge was for working on
his camper during his shifts , on July 23 and 24.
On the basis of the testimony I cannot conclude that
Saucier was a spokesman for the employees or was
considered as such by management or that he was engaged
in concerted activities with or on behalf of the men, at any
point relevant in time to his discharge . It is clear from
Saucier's testimony as well as that of Howkins that
Howkins did not know the reason for the discharge when
he told Saucier that he was discharged . This would tend to
confirm that the discharge was not caused by Saucier's
asserted complaints to Howkins.
I therefore conclude and find that the discharge of
Saucier was initiated by Hudson for cause and that Saucier
had not engaged in proximate concerted activities which
were known to Hudson , and therefore , any concerted
activities by Saucier did not play a part in this discharge.
The next question is whether Hudson violated Section
8(a)(1) by his alleged interrogation of Saucier on July 28
concerning his union activities or the activities of other
employees . I have just found that Saucier was discharged
for cause on July 27 . It would therefore follow that since
Saucier was not an employee on July 28 , any interrogation
of him was not interrogation of an employee and therefore
not illegal.
Hudson testified that he did not recall the Union being
mentioned during the conversation on July 28 and denied
that he had asked any questions as to who was engaged in
union activities . Saucier said that in detailing his prior
complaints to management , he asked if signing a union
card was the reason for his discharge . He testified that
Hudson then asked him who else had engaged in union
activities and whether specific individuals had solicited
membership in the Union.
It is possible that there was some conversation about the
Union between Saucier and Hudson , but I think they each
overstated their testimony at this point . If Saucier had been
an employee at this point I would probably find that
Hudson engaged in interrogation of him principally
because Hudson did not deny the allegation but stated he
did not recall it. Hudson 's testimony was most precise on
practically all other points. However, since I have found
that Saucier was discharged for cause on July 27, he was
not an employee on July 28, and I would dismiss the
allegation of 8(a)( 1) interrogation.
C. The Strike and Picketing
On July 28 Union Representative Shalpak received five
union cards from employee McCann . Saucier's union card
was received later . Hallberg, Saucier , and McDonald were
discharged on July 27 or 28. On the morning of July 29,
Shalpak met with Hudson at Hudson 's office and asked
that the three men be put back to work , asserting they had
been unfairly discharged . Shalpak stated that Local 251
represented the dischargees and the men at the plant and
sought recognition of the Union as the bargaining agent
for the terminal employees . Hudson said he would not put
the men back to work and denied that the Union
represented the dischargees or the plant employees. When
Shalpak left Hudson 's office he contacted Hallberg and
told him that Hudson refused to put any of the dischargees
back to work and the only way they would ever get their
jobs back would be to picket for them . He gave Hallberg
arm bands which had the legend "picket" and instructed
Hallberg where to picket Respondent's premises. When
Saucier appeared to see Hudson on the afternoon of July
NEW ENGLAND BITUMINOUS TERMINAL CORPORATION 39
29, Hallberg told him to join the picket line. Saucier
refused until he talked with Shalpak who told him that
Hudson refused to put any of the dischargees back to
work, and the only way he would ever get his job back was
to join the picket line. Picket areas were established near
the entrances to Respondent's Plant. On that or the
following day they were joined by three other employees,
Santos, McCann, and Seleyman. Together these six men
picketed Respondent for about a month. The signs which
they used were in most cases homemade and during some
period of the time one or more signs said that Local 251
was on strike. There is a dispute as to how long this legend
was visible outside the plant, with the Union saying 3 days
and Respondent saying 2 weeks. In any event, it is clear
from the testimony that the three employees who joined
the strike were protesting the discharge of Saucier and the
other two employees, apparently believing the discharges
were motivated by an antiunion sentiment.
Having determined that Saucier was discharged for
cause , the strike cannot be an unfair labor practice strike
but is necessarily an economic strike which from the
testimony had its inception as a protest of the discharges.
Respondent maintains that it was a recognitional strike.
There were no signs so indicating nor were there repeated
demands for recognition by the Union, although this could
have been an unstated but partial reason for the strike.
The next contact between the Union and Respondent
was a letter dated August 25, signed by Shalpak calling off
the strike and offering on behalf of McCann, Santos,2 and
Seleyman to return to work. The three men went to the
plant two days after the date of the letter and not finding
Hudson talked to Robert Brosseau , who told them he knew
nothing of the letter or the offer and if they wanted to see
about getting their jobs back they would have to contact
Hudson. The three men left and there was no further
contact by them with the Company.
A letter dated August 27 from Shalpak to the Company
2 Santos testified, and it was not disputed, that on the first day of the
picketing he was out at the picket line preparing to join it when Hudson
appeared and told him to come in and work or he would be fired. He
worked that day but joined the picket line the following day There is no
allegation in the complaint concerning this alleged action and it was not
litigated by Respondent. Therefore no resolution of the action or violation
finding will be made.
requests the return to work of the strikers and the
dischargees noting that the three strikers had reported for
work that day and had not been allowed to return. The
letter also requests recognition of the Union and bargain-
ing for a production and maintenance unit at Respondent.
Hudson's reply, dated September 2, states he doubts that
the Union represents a majority of the production and
maintenance unit and says the Company has no vacancies
for McCann, Santos, or Seleyman since all the job
openings were filled on a permanent basis . Brosseau
testified that as far as he knew there had been no openings
since that time. Respondent shortly thereafter filed the RM
petition mentioned above.
Having found that the strike was not an unfair labor
practice strike, it follows that the strikers were economic
strikers. This case was not tried under the theory of
Laidlaw, 171 NLRB 1366, and no order appropriate
thereunder is being entered here, but it would appear that
the three strikers might fit into the second category
mentioned in that case, of economic strikers who uncondi-
tionally apply for reinstatement at a time when their
positions have been filled by permanent replacements, and
that they remain employees entitled to full reinstatement
upon departure of the replacements unless they have
acquired regular and substantially equivalent employment
in the meantime.
In accordance with these findings I would dismiss that
section of the complaint which alleges that Respondent
violated Section 8(a)(1) by refusing to reinstate McCann,
Santos, and Seleyman.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 3
ORDER
The complaint is dismissed in its entirety.
3 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes.