Panama-Williams, Inc.

National Labor Relations Board - Board Decisions

Oct 7, 1976

226 N.L.R.B. 315 (N.L.R.B. 1976)

PANAMA-WILLIAMS, INC.
Panama-Williams, Inc. and Joint Pipeline Craft Asso-
ciation (IUOE). Case 16-CA-6430
October 7, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On July 8, 1976, Administrative Law Judge Jerry
B. Stone issued the attached Decision in this pro-
ceeding. Thereafter, General Counsel and Respon-
dent filed exceptions and, supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544 ( 1950), enfd 188 F.2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor Rela-
tions Act, as amended, was heard pursuant to due notice
on May 11, 1976, at Dallas, Texas.
The original charge was filed on February 2, 1976. The
first amended charge was filed on March 17, 1976. The
complaint in this matter was issued on March 22, 1976.
The issues concern (1) whether Respondent's agent, M. E.
Shiflett, orally prohibited a representative of the Union, in
the presence of Respondent's employees, from handbillmg
or seeking to organize employees of Respondent, and (2)
whether Sheriff Burton, of Collin County, Texas, interfered
with rights of employees by demanding that a representa-
315
tive of the Union forego his organizational efforts at Re-
spondent's jobsite and by threatening such representative
with physical harm.
All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by General Coun-
sel and Respondent and have been considered.
Upon the entire record in the case and from my observa-
tion of witnesses, I hereby make the following:'
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER 2
Respondent Panama-Williams, Inc., is now, and has
been at all times material herein, a corporation duly orga-
nized under and existing by virtue of the laws of the State
of Texas, and is engaged in the business of pipeline con-
struction with a principal office and place of business in
Houston, Texas. During a representative 12-month period
Respondent in the course and conduct of its business oper-
ations received goods and supplies valued in excess of
$50,000 directly from suppliers located outside the State of
Texas.
As conceded by Respondent and based on the foregoing,
it is concluded and found that Respondent is, and has been
at all times material herein, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED 3
Joint Pipeline Craft Association (IUOE) is, and has been
at all times material herein , a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues
1. Supervisory status 4
At all tunes material herein M. E. Shiflett occupied the
position of supervisor and has been and is now an agent of
Respondent, acting in its behalf,'and is a supervisor within
the meaning of Section 2(11) of the Act.
2. Alleged agency status
The General Counsel alleges and Respondent denies
that, "[a]t all times material herein , Jerry W. Burton occu-
pied the position of sheriff of Collin County, Texas, and
has been and is now an agent of the Respondent, acting on
its behalf, and is an agent within the meaning of Section
2(13) of the Act."
As revealed by the facts as litigated and set forth later
Respondent's motion to correct the transcript is hereby granted
The facts herein are based on the pleadings and admissions therein
'The facts are based on the pleadings (as amended at the hearing) and
admissions therein
The facts are based on the pleadings and admissions therein
226 NLRB No. 48
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein, the facts do not establish, as alleged, that Jerry W.
Burton acted as an agent for Respondent with respect to
the conduct complained of in this proceeding.
B. The Alleged Unfair Labor Practices
1. The facts 5
During the time period relevant to this proceeding, Pan-
ama-Williams, Inc., the Respondent, has had a collective-
bargaining agreement with the Oil, Chemical and Atomic
Workers International Union, which covers all of its pipe-
line construction employees. During the same period of
time Respondent has been under contract to construct a
portion of a pipeline for Seaway Pipeline, Inc. Said pipe-
line involves construction work in Collin County, Texas,
and included crossings at Highway 380, west of Farmers-
Ville, Texas, and Highway 78, north of Farmersville, Texas.
At the time of the critical events in this proceeding Re-
spondent had engaged the services of T. E. Mercer Com-
pany for the purpose of stringing the pipe. Mercer's em-
ployees are represented by the Joint Pipeline Craft
Association (IUOE) or member unions thereof, Pipefitters
Local 798, Operating Engineers Local 819, Laborers Local
38, and Teamsters Local 657.
Prior to the critical events in this case, Respondent had
experienced incidents of sabotage and vandalism and had
discovered 25 to 30 holes drilled in various places in the
pipeline. In connection with such problems Respondent
had employed the services of Burns Detective Agency for
patroling and checking equipment, the pipeline, and appar-
ently materials connected therewith. Although complaint
and investigation thereof had been made to and requested
of other sources, complaints thereto concerning such sabo-
tage or vandalism had not been filed with the sheriff's of-
fice of Collin County, Texas. However, the sheriff's office
had been made aware of such problems by communication
from Bums Detective Agency concerning its presence and
purpose. Around this time, however, there had been some
incidents of theft of equipment from some other construc-
tion companies that had occurred in Collin County and of
which the sheriff's department in Collin County was aware.
Respondent maintained a field office in Collin County
about 1,500 feet from the place that the pipeline was to
cross Highway 380, west of Farmersville, Texas.
On January 21, 1976, at or around 9 a.m., representatives
of the Joint Pipeline Craft Association (IUOE) were at the
pipeline crossing site at Highway 380, west of Farmersville.
Such representatives were Beal of Pipeline Local 38 of the
Laborers, Ryan of Teamsters Local 657, and Preston of
Pipeline Local 38 of the Laborers. These representatives
were on the right of way and engaged in handbilling em-
ployees or persons entering into or leaving the area of the
pipeline site as it reached the right-of-way. The handbill
that was being distributed or attempted to be distributed is
as follows:
5 Unless otherwise noted the facts are undisputed and are based on a
composite of stipulations and the credited aspects of the testimony of Beal,
Anderson , Shiflett , and Burton
TO ALL PANAMA-WILLIAMS PIPELINE HANDS.
LETS SET THE RECORD STRAIGHT ABOUT THE LABOR DISPUTES WITH
MR PANAMA SHIFLETT AND HIS ASSOCIATE, MAURICE WILLIAMS.
SOMETIME AGO, DURING WORK IN MIDLAND, TEXAS, ON A PIPELINE
PROJECT, BY BOOTH SERVICES , INC. WHICH THESE GENTLEMEN OWNED
AT THE TIME, UNFAIR LABOR PRACTICE CHARGES WERE FILED
AGAINST THEM AS A RESULT OF THESE CHARGES, THE NATIONAL LA-
BOR RELATIONS BOARD FOUND VIOLATIONS OF THE NATIONAL LABOR
RELATIONS ACT. THE UNITED STATES CIRCUIT COURT OF APPEALS AT
NEW ORLEANS UPHELD THE GOVERNMENT'S FINDING AND COM-
PLAINTS AGAINST MR SHIFLETT'S AND MR. WILLIAMS' COMPANY,
BOOTH SERVICES, INC.
THE NATIONAL LABOR RELATIONS BOARD HAS ORDERED BOOTH
SERVICES, INC. NOT TO FORCE MEMBERS OF OUR LOCALS, OR ANY EM-
PLOYEES TO JOIN THE 0 C A. W, UNION AS A CONDITION OF EMPLOY-
MENT ATTACHED IS A COPY OF THE NOTICE OF THE BOARD, ENFORCED
BY THE U. S. COURT OF APPEALS, AND AGREED TO BY BOOTH'S OWNERS.
IT IS SELF-EXPLANATORY.
ONCE AGAIN, ON THE SEAWAY PIPELINE PROJECT NOW UNDER CON-
STRUCTION, MR. SHIFLETT AND MR. WILLIAMS, UNDER A NEW COMPA-
NY CALLED PANAMA-WILLIAMS, HAVE MADE SOME FORM OF LABOR
AGREEMENT WITH THE 0 C. A. W. THIS AGREEMENT WAS NOT THE RE-
SULT OF COLLECTIVE BARGAINING NOR DID THE NATIONAL LABOR RE-
LATIONS BOARD CONDUCT AN ELECTION AMONG PANAMA-WILLIAMS'
EMPLOYEES
MANY OLD HANDS WILL BE SEEKING EMPLOYMENT ON THE SEAWAY
PIPELINE PROJECT. IF THIS COMPANY, OR ITS OFFICERS, AGENTS, OR
OWNERS ATTEMPT TO DISCRIMINATE AGAINST YOU, TRY TO FORCE
YOU TO JOIN THE 0 C. A W. AS A CONDITION OF EMPLOYMENT,
PLEASE CALL US OR CALL THE NATIONAL LABOR RELATIONS BOARD IN
FORT WORTH . THE BOARD'S NUMBER IS (817) 334-2921
IF YOU SHOW UP ASKING FOR EMPLOYMENT, AND THE COMPANY IS
SEEKING MEN, BUT DOES NOT HIRE YOU, AND INSTEAD HIRES SOME-
ONE ELSE, PLEASE CALL THIS ASSOCIATION SO THAT THE APPROPRIATE
LEGAL ACTION CAN BE TAKEN TO SECURE YOUR RIGHTS.
IF YOU MUST WORK ON THIS JOB, YOU ARE ENTITLED TO WORK WITH-
OUT JOINING THE 0 C. A W PLEASE GIVE YOUR BARGAINING RIGHTS
TO THIS ASSOCIATION BY SIGNING A CARD TO THAT EFFECT AFTER
YOUR EMPLOYMENT REMEMBER, NO HEARING HAS BEEN HELD BY THE
NATIONAL LABOR RELATIONS BOARD TO DETERMINE THE LEGAL SUF-
FICIENCY OF THE O. C A W CONTRACT OR WHETHER , IN FACT, IT
EVEN REPRESENTS A MAJORITY OF THE PANAMA-WILLIAMS' EMPLOY-
EES
THIS ASSOCIATION WILL REPRESENT YOUR INTEREST ON THE PIPE-
LINES IN OUR JURISDICTION WE WISH TO FURTHER POINT OUT THAT
BY WORKING FOR PANAMA-WILLIAMS AS AN EMPLOYEE YOU WILL NOT
RECEIVE CREDIT FOR HOURS WORKED TOWARD ANY CURRENT
HEALTH, WELFARE AND PENSION PROGRAMS OF ANY OF THE ASSOCIA-
TIONS MEMBERS
FRATERNALLY YOURS,
JOINT PIPELINE CRAFT ASSOCIATION
JOINT PIPELINE CRAFT ASSOCIATION MEMBERS.
TEAMSTERS LOCAL UNION 657
LABORERS' INTERNATIONAL UNION OF NORTH AMERICA-AFL-CIO
PIPELINE LOCAL NO 38
LU O.E. LOCAL UNION 450
LU 0 E. LOCAL UNION 819
PIPEFITTERS LOCAL UNION 211
PIPEFITTERS LOCAL UNION 798
PANAMA-WILLIAMS, INC. 317
NOTICE TO EMPLOYEES
POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten our employees with discharge
or other reprisals if they engage in union or other pro-
tected concerted activities.
WE WILL NOT question our employees about their
union activities.
WE WILL NOT engage in surveillance of employee
union activities or create the impression that we are
engaging in such surveillance.
WE WILL NOT encourage membership in Oil, Chemi-
cal and Atomic Workers Union, AFL-CIO, its Local
4-449, or any other labor organization, by requiring
our employees as a condition of their employment to
execute membership and dues checkoff authorization
cards for such organizations or by checking off union
dues and initiation fees pursuant to authorization
cards so obtained.
WE WILL NOT discharge; transfer, or otherwise dis-
criminate against our employees in order to discour-
age membership in Laborers International Union of
North America, Pipeline Local 38, International
Union of Operating Engineers, AFL-CIO, Local 819,
or any other labor organization.
WE WILL reimburse all our employees who were re-
quired to join Oil, Chemical, and Atomic Workers
Union, AFL-CIO, or its Local 4-449 for moneys de-
ducted from their pay as initiation fees and dues. Such
reimbursement shall not be required as to those who
were members of OCAW at the time of hire or as to
those who joined voluntarily upon or after hire.
WE WILL notify David Solly and Tommy Joe
Holmes that they are eligible for employment on any
of our projects should they choose to apply for em-
ployment at any of them, and WE WILL make them
whole for any pay they lost, with interest, because of
discrimination' against them.
WE WILL NOT in, any other manner interfere with,
restrain, or coerce our,employees in the exercise of
their right to engage in, or to refrain from engaging in,
any or all: the' activities specified in Section 7 of the
Act.
The facts reveal that the above-referred-to handbilling
was done on the right-of-way and that there was no traffic
hazard or impediment of travel on Highway 380 as a result
of said handbilling.6
While Beal and the other representatives were engaged
in handbilling, Respondent's official, M. E. Shiflett, ap-
peared on the roadsite at Highway 380. A short time later
the mayor of Farmersville, Texas, appeared in a car at the
same site. Shiflett and the mayor exchanged pleasantries?
The mayor then left.
Apparently about this time the union job steward for the
T. E. Mercer job drove up with an employee and told
Union Representative Beal that they had shut T. E. Mer-
cer down because they had quit. Beal told the job steward
and the employee that they were not to quit, that if they
had a problem they were to let him" know so that he could
get with the foreman and straighten the matter out without
a work stoppage.
The Mercer employees left and Beal completed his
handbilling. Beal and the other union representatives then
left, stopped and had a cup of coffee, and then proceeded
to the pipeline crossing at Highway 78, north of Farmers-
Ville. In the meantime the mayor of Farmersville had re-
quested help of the sheriff's department. In the meantime,
also, Shiflett had met Pickle, of Seaway, and had also pro-
ceeded to the Highway 78 pipeline crossing north of Farm-
ersville. As Shiflett approached' the Highway 78-pipeline
crossing, he observed some people on the road, proceeded
up the road to a store, parked his car, and walked back to
the crossing. Also, in the meantime Sheriff Burton had re-
sponded to the mayor's call for help, and had gone to the
Highway 380 pipeline crossing east of Farmersville, Texas.
There Burton met the mayor, was told that there had been
a traffic problem created, that there were people trying to
move equipment across the road, and that other persons
were trying to stop the movement of the equipment across
the road. The sheriff learned that there was now no activity
at the Highway 380 crossing. The sheriff, however, was told
by someone he believed to be a foreman or superintendent
from a construction company, that they were having prob-
lems up on,Highway 78 north of Farmersville, Texas. The
sheriff then proceeded to the Highway 78 pipeline crossing
north of Farmersville, Texas.
Beal arrived at the Highway 78 pipeline crossing north
of Farmersville, before Shiflett or the sheriff. There Beal,
Shiflett, and the sheriff engaged in a conversation, the sub-
ject of this case . Such conversation and events took place
in the presence of employees. However, the evidence is not
sufficient to reveal that any employees heard the conversa-
BOOTH SERVICES, INC.
Dated DEC-1 1975 By (Signed) Manager
THIS 1S 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 compliance with its provisions
m a y be directed to the Board's Office ... .
6 1 credit Beal's testimony to such effect. Shiflett's testimony, in a general
way, referred to traffic being at a standstill . Burton's testimony as to what
was reported to him by the mayor of Farmersville was to the effect that
there was a problem because some equipment was trying to exit from the
pipeline area and that some persons were trying, to, stop such vehicles. Con-
sidering all of the facts and the logical consistency thereof, I credit Beal's
testimony; as indicated, and discredit Shiflett's testimony to the extent that
it might be construed contradictory thereof
7 Although Beal testified to the effect that he saw Shiflett speak to a man
who was in a car that had a red light on the top of the car of an official or
police appearing type, Beal did not hear what was said. Shiflett testified
credibly to the effect that this,was the first time he had ever met or talked to
the mayor and that he did not ask the mayor to do anything.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. It is clear,,that such employees could see that there
was a conversation going on and what occurred thereafter.
What occurred next is"revealed by the following composite
of credited excerpts from Beal's testimony and facts'-found
otherwise.' - -
Excerpts from Beal's testimony:
A. Well, j- parked the car and we got out, and •I
was-what I, was doing was checking to see if the men
that had come down to the first place had come back
there-to work as they had been instructed to do.
And I ,walked down there, and I could see them
down there, and they wasn't far from the road. So I
was -going to stand there on the-edge of the road until
they got up there to cross the road, and I was going to
talk with. the foreman for T. E. Mercer, Jerry Cox,
and find out dust what had taken place that morning,
why the people decided to quit and walk off.
And while we were standing there at the back of the
car, T. E., Mercer-a T. E. Mercer truck came, up and
pulled in on ,the opposite side of the road on the right-
of-way so that they could be the-fir-st truck to unload
when they crossed the road.
And the truckdriver got out, Harvey Ryan who was
with me, with the Teamsters, knew the truckdriver, so
he went across the road and started -talking, to him.
And then. A. B. Preston and myself went to cross the
road, and as we got over there and Harvey Ryan was
fixing to introduce us, the Sheriff-come up-the Sher-
iff and his Deputies, come up.
A. Well, the Sheriff walked up, and he wanted to
know who was in charge and,what the hell was hap-
pening.. So I stepped forward and introduced myself to
the Sheriff and told him who I was and that we'd had
8 In general, I found Beal to be the most forthright and fully objective
witness to _these events and credit his testimony over Shiflett's or Burton's
where in conflict except as indicated As to whether the parking of Beal's
car constituted a potential road hazard , I note that the facts reveal that a
truck of a state safety official was similarly parked on the side of the road.
I am persuaded that the parking of Beat's car did not constitute a hazard to
traffic on Highway 78. It is obvious that individuals or employees congre-
gating on the driven portion of a highway constitute a road hazard. There is
no reason , however, why such problem could not have been eliminated by
simple instructions or orders to remain off the highway and on the right-of-
way. Shiflett's testimony did not appear to' be in detail, objective, or to have
the ring of truth on crucial points. Burton 's testimony in part as to the
traffic hazards appears inconsistent with the logical sequence of facts I find
it hard to believe that , if traffic hazards existed, Sheriff Burton would not
have had the cars moved immediately To the extent that Burton's and
Shiflett's testimony is contradictory of the facts found , it is discredited I
have considered whether witness Beal's testimony that Sheriff Burton told
him he had 5 minutes to get out of the county , and later suggested that he
conduct his business in a cafe elsewhere in the county , is inconsistent and
therefore reveals that the sheriff did not say that he had 5 minutes to get out
of the county From all of the testimony and facts, I am persuaded that the
sheriff, in an authoritative way, wanted to get a problem out of the way and
was saying what he thought was necessary to accomplish the same . I credit
Beat's testimony to the effect that Sheriff Burton did tell him that he had 5
minutes to get out of the county . I do not,'however, credit Beal's testimony
that Sheriff Burton threatened that, if the Union returned, he would have a
busload of deputies come out and "hurt you all real bad." I am persuaded
that Beal's testimony on this point is an interpretation or conclusion of a
remark about having -deputies back ' out if the Union returned.
a problem on the fob that morning, -and that members
had quit and walked off the job. And I told them to go
back to work, and I had come back down there to
make sure that they had went back- to work and talk
with the foreman to find out what'had happened.
And then, from then on Mr. Shiflett walked up and
he said that he did not approve of the Unions, did not
like the Unions, but that he did have an agreement
with the OCAW -Union, and that -I was illegal to be
out there handbilling;his people, because he did have
this agreement.
Q. At. this time were. there-any, other employees
around there?
A. Yes, there was. -
Q. Who?
A. There was a Teamster; the Teamster that had
been driving the truck had pulled in there, had just
walked off- when this conversation come up, going
back down on the right-of-way.
* * *
A. Well, we =got in the car, L°got in the front seat
and Mr. Shiflett got in the back seat; and the. Sheriff
started raising hell about the union , cussing unions,
about how sorry they were, that all they done was try
to keep a man, from working and making a living for
the family, and that he didn't approve,of the union.
And he started telling me'about something, for in-
stance,'that had been taking place out there on the
job, and that he was intending to catch whoever was
doing the vandalism and prosecute them to the fullest
extent he could. And I told the Sheriff I was in full
agreement with him, that I thought' whoever was doing
it should be caught, should be prosecuted. -
And at this time Mr. Shiflett handed the Sheriff an
authorization ; card that we had been -trying, to get
signed for representation, and Mr,. Shiflett told him,
"This is the kind of trouble they're trying- to cause;
they're just trying` to get these cards signed," and he
said that it's illegal after a contractor had been signed
with a union for one year, for another union to- try to
get these authorization cards signed on him.
The Sheriff asked me then, "What the hell are you
doing out here?" So I proceeded to tell him that I was
out there because I'd been handbilling over on 380
that morning, and that I'd come down here, to check
and make sure that my people had went back to work
as I'd instructed them to, and that we didn't want any
trouble, that I was dust down there to make sure that
everything went all right.
Then he informed me that it was illegal to picket or
handbill, or any other type organizing on such a coun-
ty, state or federal property, once a duly authorized
officer of the law had instructed you to cease doing it,
which he instructed me at that time to cease doing it.
He informed me that I had exactly five minutes to
move out of this county, get out of his county. And I
told -the officer that 'I needed to talk to Jerry Cox, the
PANAMA-WILLIAMS, INC. 319
foreman on the job, and he informed me that I was
not to go on the jobsite or the right-of-way; that if I
had any talking do with the superintendent or the em-
ployees, I would be-was to talk at a coffee shop or at
the T. E. Mercer main office.
Sheriff Burton also told Beal, after telling him that he
had 5 minutes to leave the county, that if he ever caught
him or any of his men in the area of the jobsite he would
have a busload of deputies to come out.
The facts as to what further occurred are revealed by the
following excerpts from Beal's credited testimony:
And after that I told him, "Well, I still need to talk
to the,foreman so that we can try to get the differences
straightened out and get the job finished." And I said,
"Where could I talk to him at?"
And he said, "Well," he said, "the coffee shop
would be the best place to talk to him at." He said, "In
the meanwhile, while we're sitting here and we're get-
ting your people back to work," he says, "if it was
me," he says, "if the people worked for me, I'd just fire
them all and get a new crew." He said, "So if you can't
get them back to work," he said, "meanwhile, while
you're out here trying to get them back to work," he
said, "if an accident was to happen, I'd just have to
cite you for-file charges against you for obstructing
the right-of-way and obstructing public roads, because
you're parked in the wrong spot."
And he said, "You've got five minutes to get out of
my county; get it done and get out of my" county."
And at this time Mr. Shiflett come in and said that-
he was sitting there and spoke up and said, "Well," he
says, "I don't know what I'm going to do if they don't
go back to work but just fire T. E. Mercer and hire a
nonunion company to come in there and finish the
job."
At this point the Sheriff informed me I had five
minutes to get out of his county, and we had gotten
out of the car and walked around there and the Sheriff
was standing right there where he could hear. I in-
formed all my employees that they was to get their
butts back out there and finish the job, that there was
no sense in them horsing around, to get out there and
get to work.
I asked Jerry Cox if he would meet me at the restau-
rant out there in Farmersville and we could discuss
our business, and so Jerry Cox took the men back and
I left out and Jerry Cox got behind me, and then the
Sheriff's car fell in behind us and we went on into the
coffee shop.
All right, when we got in there Jerry had parked a
pretty good piece on down the road from the coffee
shop, so we was standing out there waiting for him to
come up there and the Sheriff and his Deputies went
on inside and sat down in the coffee shop. So when
Jerry got there we all went in there and sat down and
got us some coffee, and we wouldn't talk business, we
just stayed there and talked, and I guess they realized
that we wasn't going to talk business and something,
and they decided to leave. The Sheriff and his men got
up and left and we finished our business.
And during the time we were sitting there talking,
every so often a Sheriff's car would come by the res-
taurant real slow, cruise by real slow.
So after we got through with our business, Mr.
Ryan had his own pickup there in Farmersville, and
he got in and left, going to McKinney, and Mr. Pres-
ton and myself got in my car and started out South
on 78 to Dallas. And we was driving down the road,
and Mr. Preston says, "Hey, we got company." And I
turned around there and I looked, and sure enough
there was a Sheriff's car that was behind us, and they
followed us to the County line where we go back into
Dallas County there at. -
There is no evidence otherwise and Shiflett credibly tes-
tified to the effect that he had not known Sheriff Burton
prior to the events, had not caused anyone to contact Bur-
ton, and had not constituted Sheriff Burton as an agent.
Burton's credited testimony similarly reveals that he went
to the pipeline crossings simply in his capacity as sheriff.
2. Contentions and conclusions
1. The General Counsel alleges and contends, and Re-
spondent denies, that Respondent, by M. E. Shiflett, orally
prohibited a representative of the Union, in the presence of
Respondent's employees, from handbilling or seeking to
organize employees of Respondent in violation of Section
8(a)(1) of the Act.
There is no evidence that Shiflett specifically ordered or
directed Beal or the other union representatives to cease
handbilling. Rather, the General Counsel contends, in ef-
fect, that Shiflett's statements concerning the "illegality" of
handbilling and the "illegality" of a union getting authori-
zation cards after the contractor had been signed up with
another union, said in the presence of the sheriff and with
the sheriff thereafter ordering the cessation of handbilling,
constitute the basis for such allegations and contentions. In
reality, the General Counsel appears to be contending that
(1) Respondent has violated the Act by prohibiting hand-
billing, etc., by the conduct of the sheriff as agent, and that
(2) Respondent by the sheriff, as agent, has violated Sec-
tion 8(a)(1) of the Act by prohibiting handbilling, etc., and
by other acts. In effect, the allegations concerning such
alleged violative conduct have been alleged twice.
The events in this case occurred off Respondent's prem-
ises and at a point on the right-of-way where Respondent
and Shiflett had no authority or control over union activi-
ties or handbilling. I am persuaded that a union represen-
tative would know that Respondent and Shiflett had no
authority or right to prohibit their handbilling or other ac-
tivities on the highway right-of-way. It is clear that Beal
did not construe Shiflett's remarks as an "oral prohibition"
as to handbilling on the highway right-of-way. According-
ly, it will be recommended that the allegations of unlawful
conduct, that Shiflett orally prohibited a representative of
the Union from handbilling or seeking to organize, in vio-
lation of Section 8(a)(1) of the Act be dismissed.
2. The General Counsel alleges and contends, and Re-
spondent denies, that Respondent, by its agent, Collin
County Sheriff Jerry W. Burton, demanded that a union
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative forego -his organizational efforts at Respon-
dent's jobsite, leave the vicinity of the jobsite and leave the
county, and threatened that, if the union representative or
any of his people returned to Collin County, they would
suffer physical harm.
First, I note that the credited facts do not reveal that
Sheriff Burton threatened the union agents with physical
harm concerning their activities. As to the rest of the alle-
gation, I would find, if the sheriff were an agent of Respon-
dent, that conduct violative of Section 8(a)(1) of the Act
has occurred. I am persuaded from all of the facts that the
sheriff thought that there was a problem existing between
the Union and the Respondent,- rationalized that such
problem bordered in the area of his police powers concern-
ing traffic problems, and considered the best solution for
him was to eliminate the problem in its entirety. If Sheriff
Burton were an agent of Respondent I would find that he
had gone beyond his police powers and had interfered with
employee rights under the Act. There is, however, no evi-
dence to reveal that Respondent had constituted the sheriff
as its agent, excluding the question of whether Respondent
condoned or ratified the sheriff's acts. Further, I note that
the record clearly reveals that Burton held himself out as
sheriff and not as an agent for- Respondent in his conversa-
tion with Beal.
- Although the facts reveal that Shiflett made misstate-
ments, within the meaning of labor law, to the sheriff and
to Beal , and said nothing to correct the sheriff's apparent
misjudgment of his authority, I am not persuaded that this
is sufficient to constitute-the ratification or condonation of
the sheriff's acts within the meaning of agency. In sum, I
find the evidence insufficient to reveal that Sheriff Burton
acted as an agent for the Respondent with respect'to the
conduct occurring on January 21, 1976. Accordingly, it will
be recommended that the complaint allegation of unlawful
conduct by Sheriff Burton, as agent for the-Respondent, be
dismissed.9
Upon the basis of the above findings of fact and upon
the entire record in'the case, I make the following:
CONCLUSIONS OF LAW
1. Panama-Williams, Inc., the, Respondent, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Joint Pipeline Craft Association (IUOE) is, and has
been at all times material herein, a labor organization with-
in the meaning of Section 2(5) of the Act.
3. The facts do not establish that the Respondent has
violated 'Section 8(a)(1) of the Act;`as alleged.
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:
ORDER10
The complaint-in this matter is dismissed in its entirety.
9 The sheriff's testimony at the hearing reveals, in my opinion, that he is
now more aware of the limits of his authority concerning matters covered by
the National Labor Relations Act and related laws I would note that par-
ties have avenues other than through the National Labor Relations Board
for correction of such acts of law enforcement officials which exceed their
power and authority and which are not done as agents for employers or
unions, subject to the Act The issue herein is limited to the consideration of
whether the Respondent, by its agent Sheriff Burton, violated Sec 8(a)(1) of
the Act
10 In the event't ono 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.