Tesoro Petroleum Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1969

174 N.L.R.B. 1285 (N.L.R.B. 1969)

TESORO PETROLEUM CORP
Tesoro Petroleum Corporation and Oil , Chemical
and Atomic Workers International Union,
AFL-CIO, and its Local 1-19. Case 31-CA-887
February 28, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On August 9, 1968, Trial Examiner Benjamin B
Lipton issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices,
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision 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
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner with the following additions-
In agreeing with the Trial Examiner's finding that
the Respondent has failed to rebut the presumption
that the Union maintained its majority status since
its certification in May 1965, and that, in refusing to
continue to recognize and bargain with the Union,
the Respondent violated Section 8(a)(1) and (5) of
the Act, we place emphasis upon the fact that the
Respondent supported the RM petition filed on
October 30, 1967, with an allegation that only a
minority of the I l employees in the appropriate unit
opposed the Union We also find significant that of
the 5 employees who allegedly opposed the Union
only one (Reed) testified to that fact and one other
(Pittman) had left the Respondent's payroll several
weeks prior to the date of the petition. The
remaining 3 employees were not called as witnesses,
nor were the alleged letters of disavowal of these
employees produced or placed into evidence
We agree with the Trial Examiner that the
Respondent's reliance upon the fact that on October
12 only 3 employees had signed dues checkoff
authorizations as a basis for doubting the Union's
majority status was also misplaced, since it is settled
Board law that evidence that a majority of the
employees in a bargaining unit have not signed dues
checkoff authorizations has no bearing on the
majority issue Moreover, the record shows that on
October 30, 1967, a majority of the employees in
the unit had signed checkoff authorizations and
1285
under the circumstances this was evidence of the
Union's majority status.' Respondent's animus
toward unions, evidenced by its violation of Section
8(a)(1) through interrogation of employees
concerning their union sympathies, further supports
the conclusion that Respondent's alleged doubt of
the majority was pretextual rather than advanced in
good faith
Accordingly, we find, in agreement with the Trial
Examiner, that the information relied upon by the
Respondent to justify its doubt of the Union's
continuing majority status was not based upon
substantial evidence and was insufficient to support
a good-faith doubt.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent, Tesoro Petroleum
Corporation, Bakersfield, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
MEMBER BROWN, dissenting in part:
I agree with my colleagues that the record
establishes that the Respondent violated Section
8(a)(l) and (5), and I join in the Decision herein to
that extent. However, I do not agree insofar as this
Decision adopts the Trial Examiner's finding that
the Respondent violated Section 8(a)(3) by
discharging employees Mayfield, Goodson, Kelly,
and Crites.
Briefly, the Trial Examiner concluded that
although "all necessary economies [were] justified,"
the facts here showed that these four employees,
who were the lowest in seniority, were eliminated
because their newly signed dues deduction
authorizations supported the Union's continued
majority status.
Certain of the circumstances set forth by the Trial
Examiner create a suspicion as to the validity of the
Respondent's motives.' However, in view of the
substantial financial loss suffered in the prior year
and the Respondent's continued operation thereafter
without hiring replacements, increasing overtime of
the remaining employees, or utilizing additional
subcontractors, I am unable to infer that the
Respondent would not have terminated any
employees or that some other employees would have
been selected
'Gulfmont Hotel Company , 147 NLRB 997, 1002 , enfd 362 F 2d 588
(C A 5)
'In this connection , I note particularly the coincidence in timing of the
discharges almost immediately after these particular men had authorized
deduction of Union dues , the hiring of Crites only 2 days before , and the
statement by Respondent ' s Vice President Miller (in response to the
suggestion to "get rid or' employee Branson ) that the Respondent "could
not get by with it " because Branson had worked beyond his probationary
period
174 NLRB No. 135
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While it may well be that the contractual seniority
clause was a fortuitous circumstance which worked
in the Respondent's favor and for which it was
extremely happy, I cannot agree that the facts show
that this clause was "seized upon by Respondent as
a pretext to eliminate" the four prounion employees
Therefore, I would dismiss the complaint insofar as
it alleges that the Respondent violated Section
8(a)(3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN B LIPTON, Trial Examiner. A hearing was
held before me on April 30, 1968, in Bakersfield,
California, based upon a complaint by the General
Counsel' alleging that the Respondent violated Section
8(a)(1), (3), and (5) of the Act. All parties participated in
the hearing and were afforded full opportunity to examine
witnesses, present relevant evidence, and to argue orally
on the record Briefs filed by the General Counsel and
Respondent have been carefully considered
Upon the entire record in the case, and from my
observation of the demeanor of the witnesses on the stand,
I make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Tesoro Petroleum Corporation,, herein called the
Respondent, is engaged, inter alga , in the drilling,
production and sale of oil From its place of business in
Bakersfield, California (formerly operated by Intex Oil
Company), Respondent annually sells products valued in
excess of $50,000 to customers directly in interstate
commerce It is admitted, and I find, that Respondent is
engaged in commerce within the meaning of the Act
II THE LABOR ORGANIZATION INVOLVED
Oil, Chemical And Atomic Workers International
Union, AFL-CIO, and Its Local 1-19, herein called the
Union, is a labor organization within the meaning of the
Act
III THE UNFAIR LABOR PRACTICES
A Issues
1 Whether Respondent violated Section 8(a)(1) by
interrogating applicants for employment - in one
instance on June 26 or 27 and in two instances on
September 14, 19679
2 Whether Respondent violated Section 8(a)(3) by
terminating four employees on November 3 and 5, 19679
3 Whether Respondent violated Section 8(a)(5) by
refusing to recognize and bargain with the Union,
previously certified by the Board, upon an asserted
The original charge was filed by the Union on November 9 and
amended on December 22, 1967, the complaint issued on December 29,
1967
'The Respondent ' s name appears as formally changed at the hearing
,frori Intex Oil Company
good-faith doubt of the Union's majority status9
B. Introductory Facts
On May 28, 1965, the Union won a Board election by a
vote of 8 to 4 among 13 eligible employees, and on June
8, 1965, was certified as representative in a production
and maintenance unit of Intex Oil Company's operations
in Kern County, California. On December 22, 1965, a
collective-bargaining agreement was executed for a term
to expire on December 31, 1966 The contract contained a
maintenance of membership union security clause and a
provision for voluntary and revocable authorizations by
employees to check off their union dues In January 1967,
the parties agreed to extend the contract, with certain
wage modifications, until December 31, 1967 On October
12, 1967, Respondent notified the Union of intention to
terminate the contract at its expiration, and on the same
date commenced communications with the Board's
Regional Office culminating in the submission of a
representation petition docketed on October 30, 1967 On
December 22, 1967, Respondent refused the Union's
specific request to bargain collectively Respondent's
election petition was dismissed on February 26, 1968, in
view of the instant complaint
In early September 1967, Tesoro Petroleum
Corporation consummate a stock purchase of a
substantial number of shares of Intex Oil Company, and
then proceeded to effect a merger cf three corporations,
including Sioux Oil Company, for which it obtained final
approval from the S E C on January 31, 1968
C. The Interrogations
On June 26 or 27, 1967,' David W Mayfield was
interviewed for employment as a "roustabout" by Vice
President Robert B Miller Mayfield testified, in relevant
part, viz Miller told him that a union contract was in
effect, but it did not require him to join, that it was a
small company, the men had good contact with
management, and they did not need a union, that some of
the men had joined the Union, and the amount they spent
for membership was a waste of money Miller asked him
whether he wanted "or definitely needed" to be a member,
and several times during the interview particularly
inquired as to whether he was an ardent union supporter
Miller remarked that if he thought Mayfield was a strong
union supporter, he would not be talking to him Mayfield
responded that he was "not definitely interested" and was
not a union organizer He was advised not to repeat their
conversation, and that if he did, it would be denied
Following a physical examination, Mayfield commenced
work and was given a payroll status as of the next
morning
James Lee Goodson testified that, on September 14, he
came to Respondent's office looking for a job and was
interviewed by Vice President Miller. After a discussion of
his past experience, Goodson was asked how he felt about
the Union He replied that he never had any dealings with
it Miller said, "Good I'm glad to hear that " At a
later point Miller stated that, if Goodson had any
"disagreement," he could come to him, that the Company
"didn't need no union to have them fight" for the
employees, and that Miller "wasn't satisfied with the
union " Goodson was placed on the payroll as of Monday,
September 18
'All dates hereafter are in 1967, unless otherwise shown
TESORO PETROLEUM CORP.
On September 14, Raymond G Kelly was also
interviewed by Miller and thereafter employed as a
roustabout Kelly told Miller he needed the job "pretty
bad." He testified that, following a review of his
qualifications and the duties of the job, the subject of the
Union was brought up Miller said he was not a union
man, did not like unions, and asked Kelly for his opinion
Kelly replied that he had been a Teamster member for
quite some time, but "it really didn't matter, as long as
the company treated its men right, paid union scale, the
company did not need it "
Miller denied that he asked Mayfield or Goodson what
they thought or felt about the Union, and stated that
Kelly volunteered the information that he carried a union
card for truck driving His testimony as to each of these
applicants was similar He told them that a union contract
was in existence, that some employees did and some did
not belong to the Union, that it was not necessary to
belong in order to work for the Company, and that in his
personal opinion - "we didn't need a union in a small
organization of this nature and with the closeness of the
field to the management."
The credibility question is resolved in favor of
Mayfield, Goodson and Kelly Their testimony reveals a
consistent approach by Miller of seeking to impress upon
them in the employment interviews that Respondent was
opposed to their union membership. Indeed, even the
caution version advanced by Miller carries an implied
interrogation of the appl.cants as to their own union
attitudes That Miller, a vice president, purportedly told
them his "personal opinion" regarding the Union cannot
serve Respondent as a defense nor diminish the impact of
the message upon the interviewees. Seeking employment,
they might well have believed from Miller's remarks that
their chances of success' hinged materially on whether they
satisfied Miller that they would not become union
members. In all three cases, they reacted in effect with
negative responses as to their desire or need for union
representation In assessing the issue, it is of some
relevance that Respondent was under obligation to
recognize and deal with the Union under a current
contract containing a maintenance of membership
provision. The propriety of informing job applicants of the
fact that such a contract existed is not at all subject to
question However, for Respondent to utilize the
employment interview as a means of dissuading or
restraining the furtherance of union membership tends to
conflict with its good-faith obligation to recognize and
deal with the Union and unduly to interfere with the
self-organizational rights of the employees.4 No assurances
were given these applicants that their own preferences for
or against the Union would not affect the hiring decision
or their future employment Nor was any legitimate
purpose shown for Miller's interrogations in the context of
antiunion remarks Miller's actual purpose, at least in the
September 14 interviews, may inferrably be related to
Respondent's actions shortly thereafter in challenging to
the Union's continuing majority status and serving notice
of contract termination. In all the circumstances, it is
concluded that Respondent engaged in interference,
restraint and coercion with respect to the employment
interviews of Mayfield, Goodson and Kelly, in violation of
Section 8(a)(1) of the Act 5
'Cf, Rohlik, Inc, 145 NLRB 1236, 1242-43
'See, e g , Bendix-Westinghouse Automotive Air Brake Co , 161 NLRB
789, 792, The Singer Company, Wood Products Division , 158 NLRB 677,
689, Kern's Bakery, Inc , 150 NLRB 998, 1001 And cf. Bourne Co v
NLRB,332F2d47(CA 2)
D The Evidence on Section 8(a)(3) and (5)
1287
The following chart reflects in summary the stipulated
payroll data concerning the employees in the bargaining
unit from June I through December 31
TESORO PETROLEUM CORPORATION
CALIFORNIA FIELD PERSONNEL
June 1, 1967, to December 31, 1967
Name Hire Date Termination Checkoff,
Ahrens, W J 12-28-48
Bragunier, C E 10-22-54 yes
Branson, P W 1-31-67 yes
(10-27-67
Caudle, O. H 5-28-51 yes
Coughran, C O. 3-26-53 7-31-67 yes
Pittman, D 5-22-67 8-15-67
Reed, M E 9-24-48
Rush, R E 5- 1-57
Smith, L S 1-19-49 yes
Spires, D 2- 1-65
Teter, J. 6- 5-67 7-31-67
Mayfield, D 6-28-67 11-5-67 yes
(10-27-67)
Kelly, R 9-14-67 11-3-67 yes
(10-26-67)
Goodson, J. L 9-18-67 11-3-67 yes
(10-26-67)
Crites, R 11- 1-67 11-3-67
* Temporary summer employee
On October 12, Respondent sent the Union notice of
contract termination 6 On this day, Respondent wrote the
Regional Office that it desired an election and, on
'The contract provides ( art II, A) "This Agreement shall remain in
effect until December 31, 1966 , [later extended to 19671 and shall continue
in effect thereafter unless either party gives the other sixty (60) days
written notice at any time after November I 1966, of a desire to
terminate , modify or amend the Agreement If such notice is given, a
conference shall be held to consider the proposed termination,
modification, or amendment If after sixty (60) days from the date of
receipt of a notice to terminate the parties have not reached an agreement
to extend the contract then this Agreement and all of its provisions shall
terminate on the expiration of said sixty (60) day period If after sixty (60)
days from the date of receipt of a notice to modify or amend , the parties
have not reached an agreement , either party may terminate this Agreement
by giving the other party ten (10 ) days written notice of its desire to
terminate and upon the expiration of said ten ( 10) days this Agreement
and all of its provisions shall terminate "
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 27, sent in its lormal petition' In its
communications with the Board, Respondent stated a
belief that the Union no longer held majority status, and
submitted information that there were 12 employees in the
unit, that only 3 were having their dues checked off, and
that 5 had "recently" informed Vice President Miller or
Supervisor Clyde C David they did not desire union
representation, - naming Wilber J Ahrens, Max E
Reed, Ramus A Rush, Dennis Spires, and Donald
Pittman
At the hearing, Miller repeatedly asserted that "4 or 5"
employees made known to him that they did not want the
Union 8 In this connection, his testimony was changing,
vague, and generalized Clearly, Pittman could not be
included as he had left his employment on August 15
Miller stated that "3 or 4" of these employees had signed
and submitted to Respondent a letter of union disavowal.'
As signatories to the letter, he identified Reed and
Ahrens, was not sure of Spires, and did not mention
Rush. He indicated that over a period of 6 months or
perhaps from early January 1967, each of the five named
employees had separately conveyed to him their
opposition to the Union In each case there was just one
conversation The dates of the respective conversations
were not fixed nor their substance given with greater
specificity. He apparently relied upon a further factor (not
mentioned in his information to the Board); i e , that he
had reports of "pressure" brought to bear on some
employees impliedly in behalf of the Union However, his
illustrations were similarly vague,10 and in no instance was
probative evidence of coercion shown While Miller
testified he was not aware of which employees were in or
were not in the Union, excepting those whose dues were
being checked off, he stated that, to his knowledge,
Ahrens, Rush, Spires, or Pittman were never union
members. Additionally, Reed testified that (during his
employment with the Respondent) his opposition to the
Union has been common knowledge "
On October 26, a union meeting was held at the union
hall in Taft, California In attendance were two union
representatives. Mayfield, Kelly, Goodson, Reed, and
another unidentified employee Membership applications
and checkoff authorizations were signed at the meeting by
Mayfield and Kelly, and the next day, by Goodson and
Branson On October 27, the Union sent by letter to
Respondent the checkoff authorizations of Mayfield and
Kelly, and on October 30, those of Goodson and Branson
As the issue was raised and litigated at the hearing, and is relevant as
background in filling out the entire context, I am of the opinion that the
parties intended, precisely as written above, that notice of termination or
modification be given after November I While the provision could not
preclude the filmg of an election petition prior thereto (Nelson Name Plate
Company, 122 NLRB 467), it would appear to insure the parties between
themselves a longer period of contract security It is observed, as a practice
under the contract, that the Union notified Respondent on November 2,
1966, of its request to reopen and modify the agreement Cf, Carpenters
District Counsel of Denver and Vicinity, AFL-CIO, (Rocky Mountain
Prestress, Inc ), 172 NLRB No 87
'The petition specified 14 employees in the unit
The named employees were not called or questioned
'The letter was not produced
"Ahrens had informed him that there was "too much discussion and
comment on the union" during working hours, which was causing
disharmony, Branson had offered to show Miller a letter which would
"open his eyes", and some employees had said they wished to "get the
damn thing settled "
"In view of this testimony, it is a curious fact that Reed attended the
union meeting in Taft on October 26, infra
Vice President Miller stated that this information came to
his attention on or about October 30.
Dated October 25 and stamped received October 27, a
letter from President M J. Watson to Vice President
Miller was introduced in evidence 11
October 25, 1967
Mr. R Bruce Miller
Intex Oil Company
P O. Box 1848
Bakersfield, California 93303
Dear Bruce:
The purpose of this letter is to confirm to you in
writing the general policy which I would like for Intex
to follow for the next several months which I discussed
with you verbally.
Specifically, I want Intex to operate as efficiently
and inexpensively as possible during the interim period
until the contemplated merger is accomplished We
should maintain operating expenses at minimum levels
consistent with sound, workmanlike operating practices
All costs relating to field operations should be reviewed
and you are to cut expenses and the labor force where
possible Also, please advise me if further reduction in
the Administrative staff can be made at this time or the
near future
We will not want to make acquisitions of additional
acreage or properties unless an unusually attractive
opportunity presents itself Neither do we want to drill
any exploratory or development wells unless some of
the latter are required to satisfy offset obligations or to
perpetuate acreage which should be saved In this latter
event I want to discuss each specific situation with you
before you take any action on it.
Also, do not make any capital expenditures for
equipment acquisition and/or replacement unless such
acquisitions are absolutely essential Again, in this
event, I want to discuss the specific situation with you
before you act
You have advised that you need to spend several
thousand dollars on the Madrone Mine in San Luis
Obispo County, California to protect the existing
equipment there from damage during the anticipated
rainy winter season. You and I have agreed that you
should do this work, and this is your authorization to
proceed with it However, you are to maintain the
expenditures there at minimum levels consistent with
your sound judgment of the requirements of the
situation
Best personal regards
Yours very truly,
/s/ M. J Watson
M J Watson
President
At this point Miller averred that he proceeded to review
the company organization, both the administrative staff
and the field operation, - "with the idea of cutting to the
bare bone as instructed in the letter."
On November 1, Foremen Clyde V. David, Guffey W
Tuttle, and William C. Hudson were called into a meeting
by Vice President Miller David gave the following
account Miller told them that four additional employees
had joined the Union. Then he announced that four men
"Miller testified that the letter, on Intex Oil Company stationery, was
mailed from San Antonio, Texas, the offices of Tesoro Petroleum
Corporation The mailing envelope was not produced ,
TESORO PETROLEUM CORP.
were going to be laid off "to cut expenses," specifying
Mayfield, Goodson, Crites, and one other employee
(Kelly). Hudson inquired about letting Branson go at the
same time, and Miller said, " . I don't think we can get
by with it because he worked beyond his 90-day
probationary period." The foremen were instructed not to
discuss the meeting with anyone
Miller testified that he first learned from Hudson that
morning, November 1, that Crites had been hired (that
very day) About a week or 10 days before, he had spoken
to Crites, then seeking employment, and he referred Crites
to Hudson Miller further stated that, when he personally
interviewed and hired Mayfield, Goodson, and Kelly -
Foreman David was in poor health, and he was not given
the function of hiring help in order to relieve him of
"pressure." He indicated that, more recently, Hudson was
transferred from Respondent's operation in Wyoming and
he was delegated the hiring responsibility For various
reasons, I am unable to accept Miller's explanations."
In the context of this record, I conceive it as highly
improbable that Crites would be hired without the
advance knowledge and approval of Miller, and find it
particularly difficult to reconcile such hiring with the
austerity program ostensibly in effect the past several
weeks.'
Concerning the November 1 supervisors' meeting,
Miller denied that he mentioned the subject of the Union,
' S and disputed certain other testimony of David I credit
David to the extent of relevant conflict.16 Miller gave the
version that Hudson said he thought the Company "ought
to get rid or' Branson, and that his reply was they "had
to maintain enough personnel to keep this thing going "
On November 3, Mayfield, Goodson, Kelly and Crites
were notified of their termination by Foreman Hudson "
Each of these employees was given to read a
memorandum dated November i which Miller had
addressed to Hudson (noting copies forwarded to Foremen
Tuttle and David). In substance, the memorandum states
that Respondent suffered substantial losses during the
fiscal year 1967, and that certain economy measures were
necessary, including the termination of the named
employees as the four most recently employed field men 18
"Hudson did not testify, nor did Tuttle
"Inter alia, it was not clearly shown how the handling of such a function
by David would entail excessive "pressure " upon him , or that Tuttle was
unavailable to conduct hiring interviews
"Q (By Respondent ' s counsel) In this meeting you had with Tuttle,
David and Hudson , was anything said , and if, what, about anybody
having signed or joined the union
A No, sir
Q It was mentioned , or wasn ' t mentioned , or what?
A I don' t recall whether it was mentioned or not
Q Now, when you say, Mr Miller, you don' t recall , are you saying
that you don' t remember whether it was or not)
A It wasn' t mentioned
"It is evident that David had a grievance against Respondent for
severing his employment allegedly for reasons of health Even assuming, as
I need not find , that David had asserted he was going to cause trouble for
Miller, such an attitude alone scarcely signifies a threat or intention to
distort testimony for vindictive purposes
"Mayfield was actually continued on the job until 4 p m , November 5,
because his work schedule was different from the others.
"The collective bargaining contract provides that layoffs shall be effected
on the basis of inverse seniority ( art IX ) and that any employee who is
discharged shall be given complete information in writing in the presence
of a steward or committeeman of the reasons therefore at the time action
is taken (art X)
1289
Respondent justifies the terminations entirely upon
evidence of economic factors, more fully considered as
follows In early September, when Tesoro acquired control
of Intex by stock purchase," the recent financial reports
of Intex reflected a substantial loss in net income. It was
testified that, at the outset, Tesoro required certain
changes for reason of economy, including curtailment of
Intex's administrative staff "as far as possible "20
Subsequently, as evidenced by the letter of October 25
from President Watson to Vice President Miller, quoted
above - Tesoro ordered a "review" of the field
operations and a reduction of the labor force where
possible The termination of Mayfield, Goodson, Kelly,
and Crites is purportedly linked to the receipt of this
letter
More specifically, the evidence indicates that, in a
statement published August 21, Intex reported a loss of
$460,793 for the 9-month period ending June 30 21 Of this
amount, $337,655 was attributed to unsuccessful
exploration for oil, mainly drilling of "dry holes." " Miller
was admittedly aware, for a considerable period of time
preceding the Tesoro takeover, that Intex was
encountering such losses Questioned as to the steps taken
by Respondent, he testified that economy moves were
attempted ever since he has been employed with the
Company. He indicated that the work of the field
employees consisted of operating the producing oil wells
of Intex in existence He explained the hiring of Mayfield
in June and of Kelly and Goodson in September as
replacements (for two employees who had quit July 31
and August 15, and a summer employee who had left on
July 31) stating that a certain amount of employees
were needed to get the work done Also, he conceded that
the amount of field work involved had decreased to an
"appreciable" extent from September 1966 until the
hearing date Since the terminations in question on
November 3 and 5, Respondent has not hired any field
employees, with the exception of Mayfield, who was
reemployed to fill a vacancy created by the promotion of
L. S. Smith to foreman The record shows that Intex
engaged in the practice of subcontracting certain of its
field work" but Miller testified only in connection with a
contract held by Intex, since June 1, to service certain oil
wells for the U S. Navy. On the Navy contract, he stated
that only two employees and a supervisor were directly
utilized, with most of the work done by outside small
contractors, work which "by and large" could not be
performed by Intex employees He indicated in effect that,
after November 3, subcontracting for the Navy job was
"As earlier noted, on January 31, 1968, Intex and Sioux were formally
absorbed or merged into the surviving Tesoro , with administrative
headquarters in San Antonio, Texas
30In evidence , a list of 20 administrative employees as of October I
shows that , following acquisition by Tesoro, there were terminations of the
geologist, one clerical , and reduction to half-time of another clerical In
addition , a vice president and the former president of Intex were severed,
the duties of the latter being taken over by Tesoro 's secretary - treasurer
(Watson)
"As compared with a gain of $30,787 for the same period in 1966
"For the fiscal year ending September 30, (as reported on February 29,
1968), Intex showed a net loss of $566,951, with $353,738 written off for
"dry hole costs and lease rentals ," and $290,653 for "extraordinary loss on
mining venture ." For this period, the new Tesoro corporation reported a
net profit of $1,186,561 or $ 53 per common share, on the combined
operations of the three merged companies (Tesoro, Intex , and Sioux)
"I note Miller ' s testimony that he had intended to award a
subcontracting job to Foreman David after the latter left the Company for
reasons of illness
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not increased," and that there was no substantial increase
in overtime by Intex employees
E. Conclusion on Section 8(a)(3)
The principal elements in Respondent's defense
consisting of the substantial losses in net income reported
by Intex, the takeover by and merger with Tesoro, the
observance of the seniority clause in the contract, and the
subsequent conduct of Intex operations without
replacement of the four dischargees gives serious
grounds for pause, but are by no means conclusive of the
issue The test, of course, is whether the terminations were
motivated, in whole or substantial part, by considerations
relating to union membership or Respondent's concurrent
dispute over the Union's majority representation. Upon
the totality of the evidence, I reach an affirmative finding
on this essential question, in view of the factors
summarized as follows
(1) The continuing need for the field force to maintain
the operating oil wells was reiterated in Miller's
testimony. The field function was unrelated to the drilling
explorations from which the substantial losses of net
income were incurred in the fiscal year. For a considerable
time preceding the discharges, efforts were made to keep
the operating costs at a minimum, with ample knowledge
of these financial losses From August 16 through
September 13, Respondent had only nine field employees,
but saw fit thereafter to hire Mayfield and Goodson on
September 14 and 18 and Crites effective November 1
After the terminations in issue, Respondent was left with
eight employees in the field. (2) In the circumstances, it
would appear that the sudden reduction of the field force
by one-third was quite severe. While it is not gainsaid that
all necessary economies are justified, it should be noted in
searching for motive that the presumed saving from such
curtailment would amount to about $20,000 ayear, that
the loss in income of about $560,000 was largely, if not
entirely, of a nonrecurring type, and that Intex was now
part of a larger, apparently more successful, enterprise (3)
On the recommendations of Vice President Miller,
following upon Tesoro's effective acquisition of Intex,
reductions in personnel and other measures were
accomplished for reasons of economy and the natural
result of an anticipated merger These steps preceded by
more than I month the decision to make the severe cut in
the field staff As would appear from President Watson's
letter received October 27, Miller was in continuing verbal
consultation with Watson. And the letter from Watson
was expressed in terms of a requested "review" of the
field operations, and not a flat instruction for an excision
"to the bare bone " (4) A critical factor was the timing of
the discharges. Significantly, on November 1, Crites was
"Q (By Respondent ' s counsel ) All right, did the discharge of these
four people cause the contracting , as far as the Navy work was
concerned , to increase or reduce')
A Reduce
Q Reduce"
A Yes
Q How could it reduce it'
A Just didn ' t get it done
Q You mean , your employees didn't do as much and therefore, you
didn ' t need these as much, the subcontracting as much , or what9
A No I thought your question was whether we had increased our
placed on the payroll, an action taken within Miller's
knowledge even after his receipt of Watson's letter.- The
intention to discharge the four field employees, including
Crites, was announced by Miller at the supervisors'
meeting on November I Miller testified that it first came
to his attention on or about October 30 that Mayfield,
Goodson, Kelly and Branson had joined the Union, more
precisely, the Union's letter enclosing checkoff
authorizations from two of these employees was stamped
received by Respondent on October 31 At the
supervisors' meeting, Miller mentioned the four additions
to the Union's ranks. He admitted that Foreman Hudson
suggested "getting rid of" Branson as well No reason
appears for such statement, except in the context of the
supervisors' information that Branson, like 3 of the 4
employees selected for discharge, had just signed checkoff
authorizations As found, Miller's reply was that the
Respondent could not "get by with it" because Branson
had worked beyond his probationary period Fairly
interpreted, the latter remark conveyed the point that a
discharge of Branson (hired January 31, 1967) could not
be supported on seniority standards. In sum, the strong
probabilities are, and I find, that the decision to discharge
was made almost precisely upon Miller's realization that
the three most recently hired employees (despite his efforts
at their employment interviews) had joined the Union -
thereby clearly defeating any basis for Respondent's
alleged good-faith doubt of the Union's majority and any
chance for success in its pending election petition before
the Board. Thus, the seniority clause of the contract was a
fortuitous circumstance, seized upon by Respondent as a
pretext to eliminate these junior, newly discovered,
pro-Union employees who had apparently upset the
balance (5) Considering that it was avowedly continuing
to recognize the Union under the contract, as indeed it
was required to do, Respondent's precipitate action in
effecting the sharp reduction in force, without notice to
and consultation with the Union, further implies a lack of
good faith and contributes to the finding of discriminatory
motivation. It is therefore concluded that the terminations
of Mayfield, Goodson, Kelly and Crites were in violation
of Section 8(a)(3), as alleged 26
F Conclusion on Section 8(a)(5)
"The Board has consistently held that there is an
irrebuttable presumption that the majority status of a
certified union continues 1 year from the date of
certification, that thereafter the presumption is rebuttable,
and an employer may lawfully refuse to bargain only if it
can show by objective facts that it has a reasonable basis
for believing that the union lost its majority status since
its certification."27 Respondent's asserted reasons for
doubting the Union's continued majority representation
and the evidence relevant thereto have already been
described in detail
At the election in May 1965, of 13 employees in the
bargaining unit, the Union received 8 votes in its favor,
"As earlier observed , the tentative decision to hire Crites , pending his
physical examination , most probably had taken place a day or two before
November I
"See, e g , N L R B v Cameo , Inc , 340 F 2d 803 (C A 5), cert denied
contracting by virtue of not having these four employees
Q You did not increase9
We did not 382 U S 926 , Monroe Feed Store,
(C A 9)
110 NLRB 630, enfd 237 F 2d 116
A That is right "United States Gypsum Company, 157 NLRB 652, 655, J C Penney
Q It stayed exactly as it had been9 Company (Store 134), 162 NLRB 1553 Also, e g , Rohlik, Inc, 145
NLRB 1236, 1240A Yes
TESORO PETROLEUM CORP. 1291
and 4 against. The current contract, absent renewal, was
due to expire on December 31. On October 12,
Respondent assumed the position of questioning the
Union's majority by communication to the Board and by
notifying the Union of intent to terminate the contract As
of such date, there were actually 11 employees in the
bargaining unit, of whom 3 were having dues checked off
No employees were shown to have revoked their checkoff
authorizations. Since June 1, the only changes that
occurred were the resignations of C. O. Coughran, Donald
Pittman, and J. Tiner Coughran had been on checkoff;
Pittman was purportedly known to oppose the Union, and
Tiner was a summer employee of less that 2 months (not
includable either way in the calculations Consequently,
there was no apparent change in the Union's
representative status within Respondent's knowledge based
upon existing checkoffs.
There would be no merit to any contention, although
one is not explicitly advanced, that the failure of a
majority of employees to authorize checkoff constitutes a
reasonable ground for a good-faith doubt of the Union's
majority status. The status of the Union here was not
based upon a majority of the checkoffs "Employees for
various reasons unconnected with their desire to have a
union represent them may fail to execute checkoff
authorizations . . The fact that a majority in the unit do
not sign such authorizations has no bearing on the
majority issue."28
Respondent repeatedly submitted erroneous information
to the Regional Office, and Vice President Miller's
testimony similarly was equivocal and inaccurate
concerning the number of employees who expressed
disavowal of the Union. The letters to the Board sent in
October stated that, of 12 employees in the unit, 5 had
"recently" informed the Company that they do not wish
representation by the Union Pittman was included among
these five, notwithstanding the plain fact that he had
resigned on August 15. At the hearing, Miller referred to
"4 or 5" such employees, and then reduced the number to
"3 or 4" who submitted to Respondent a letter of union
opposition, as to which he identified Reed and Ahrens,
was uncertain of Spires, and did not mention Rush.29
Miller admitted that, within his knowledge, these named
employees had never been union members (although I do
not accept this as a certainty). Respondent's other
reasons, such as "pressure," are lacking in probity, as
indicated supra Thus, there was no material change
adverse to the Union affecting its continuing majority
representation Assuming that Respondent was aware that
4 employees, of 11 in the unit, who were opposed to the
Union, such information scarcely provides objective
support for a reasonable belief that the Union lost its
majority
The foregoing holds without consideration of the
membership and checkoff authorizations effected by
Mayfield, Goodson, Kelly, and Branson of which
Respondent was apprised at the end of October. Any
doubt, actual or fancied, of the Union's majority status
which might previously have existed should immediately
have been dispelled by such information, and Respondent,
if in good faith, should have taken appropriate steps to
withdraw its course of action challenging the Union.
Instead, as already shown, it adopted the recourse of
discharging employees to salvage its effort to oust the
certified Union
"Gulfmont Hotel Company, 147 NLRB 997, 1001-02
"Miller 's testimony was uncorroborated , except as to Reed.
Accordingly, it is found that Respondent has failed to
rebut the presumed majority standing of the Union
established by certification, and that, in refusing to
continue to recognize and bargain with the Union, it
violated Section 8(a)(5), as alleged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section 1, above, have a close,
intimate and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes, burdening and obstructing commerce, and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. A broad
order appears warranted particularly by reason of the
discriminatory discharges, which go "to the very heart of
the Act "'0
It has been found that Respondent unlawfully refused
to bargain with the Union as the exclusive representative
of its employees in an appropriate unit It will therefore
be recommended that Respondent, upon request, bargain
collectively with the Union, and in the event that an
understanding is reached, embody such understanding in a
signed agreement
It has been found that Respondent unlawfully
discharged David W Mayfield , James Lee Goodson,
Raymond G Kelly, and R. Crites in violation of Section
8(a)(3) and (1) of the Act. It will therefore be
recommended that Respondent offer these named
employees immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings suffered by
reason of the discrimination against them, by payment to
them of a sum of money equal to that which they
normally would have earned, absent the discrimination,
from the date of the discrimination to the date of the offer
of reinstatement, less net earnings during such period,
with backpay computed on a quarterly basis in the
manner established by the Board in F W Woolworth,
Company, 90 NLRB 289 " Backpay shall carry interest at
the rate of 6 percent per annum as set forth in Isis
Plumbing & Heating Co., 138 NLRB 716. Further, it will
be recommended that Respondent preserve and make
available to the Board, upon request, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records necessary and
useful to determine the amounts of backpay due and the
rights of reinstatement under the terms of this
recommendation
'0N L R B v Express Publishing Co , 312 U S 426, N L R B v
Entwistle Mfg Co, 120 F 2d 532 (C.A 4)
"Respondent rehired Mayfield on April 26, 1968 According to Miller,
he was not taken back on his previousjob as roustabout , but was placed in
a new job as pumper It need not be determined here whether the new job
constituted substantially equivalent employment In any event, the
subsequent reemployment of Mayfield does not obviate the need for a
remedial reinstatement order
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact, and upon the
entire record in the case, I make the following.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 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 discriminatorily terminating David W. Mayfield,
James Lee Goodson, Raymond G Kelly, and R. Crites,
thereby discouraging membership in the Union,
Respondent engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
4. Since its certification on June 8, 1965, the Union has
been the exclusive representative of all employees in the
following appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act:
All production and maintenance employees and
warehousemen of the Respondent's Kern County,
California, operations, excluding all office clerical
employees, technical employees, professional employees,
guards and supervisors as defined in the Act.
5. By refusing to bargain collectively with the Union as
the exclusive representative of its employees in the
appropriate unit , Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
6. By the foregoing, and by other acts and conduct
interfering with, restraining and coercing employees in the
exercise of their rights guaranteed in Section 7 of the Act,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in the case,
it is recommended that Respondent , Tesoro Petroleum
Corporation, Bakersfield , California , its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating employment applicants in a coercive
manner concerning their union sentiments or activity.
(b) Discouraging membership in Oil , Chemical And
Atomic Workers International Union, AFL-CIO, and its
Local 1 - 19, or in any other labor organization, by
discharging employees , or in any other manner
discriminating in regard to hire or tenure of employment
or any term or condition of employment.
(c) Refusing to bargain collectively with the
above-named labor organization as the exclusive
representative of all Respondent ' s employees in the
appropriate bargaining unit described hereinabove.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Upon request , bargaining collectively with the
above-named labor organization as exclusive
representative of all the employees in the appropriate unit,
and embody in a signed agreement any understanding
reached.
(b) Offer David W. Mayfield , James Lee Goodson,
Raymond G. Kelly, and R Crites immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
earnings, in the manner set forth in "The Remedy"
section of the Trial Examiner's Decision.
(c) Notify the above-named employees, if presently
serving in the Armed Forces of the United States, of their
right to full reinstatement upon application, in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(d) Preserve and make available to the Board or its
agents all payroll and other records, as set forth in "The
Remedy" section of the Trial Examiner' s Decision.
(e) Post at its Kern County, California, facilities, copies
of the attached notice "Appendix "32 Copies of said notice,
on forms provided by the Regional Director for Region
31, shall, after being duly signed by Respondent, be
posted immediately upon receipt thereof, in conspicuous
places, and be maintained for a period of 60 consecutive
days Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material
(f) Notify the Regional Director for Region 31, in
writing, withiii 20 days from the date of this Trial
Examiner 's Decision and Recommended Order, what steps
Respondent has taken to comply herewith.33
"in the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order " shall be substituted for the words "a
Decision and Order "
"
In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 31, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT interrogate employment applicants in'
a coercive manner concerning their union sentiments or
activity.
WE WILL NOT discourage membership in Oil,
Chemical and Atomic Workers International Union,
AFL-CIO, and its Local 1-19, or in any other labor
organization , by discharging employees , or in any other
manner discriminating in regard to hire or tenure of
employment or any term or condition of employment
WE WILL NOT refuse to bargain collectively with the
above-named labor organization as the exclusive
representative of all employees in the appropriate
bargaining unit described below.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of the right
to self-organization , to form labor organizations , to join
or assist the above - named , or any other labor
organization, to bargain collectively through
representatives of their own choosing , and to engage in
TESORO PETROLEUM CORP. 1293
any other activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the
extent that such rights may be affected by an agreement
which requires membership in a labor organization as a
condition of employment, as authorized by Section
8(a)(3) of the Act, as modified by the Labor
Management Reporting and Disclosure Act of 1959
WE WILL, upon request, bargain collectively with the
above-named labor organization as the exclusive
representative of all employees in the bargaining unit
with respect to rates of pay, wages, hours of
employment and other conditions of employment, and,
if any understanding is reached, embody such
understanding in a signed agreement The bargaining
unit is
All production and maintenance employees and
warehousemen at Kern County, California,
operations, excluding all office clerical employees,
technical employees, professional employees, guards
and supervisors as defined in the Act.
WE WILL offer David W. Mayfield, James Lee
Goodson, Raymond G Kelly, and R Crites immediate
and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority
or other rights and privileges previously enjoyed, and
make them whole for any loss of pay they may have
suffered by reason of the discrimination against them.
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of any
labor organization of their choice, except to the extent
that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(a)(3)
of the Act, as amended.
Dated By
TESORO PETROLEUM
CORPORATION
(Employer)
(Representative ) (Title)
Note. We will notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 10th Floor
Bartlett Building, 215 West 7th Street, Los Angeles,
California 90014, Telephone 688-5850