Triad of Oklahoma, Inc.

National Labor Relations Board - Board Decisions

Dec 23, 1971

194 N.L.R.B. 736 (N.L.R.B. 1971)

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Triad of Oklahoma , Inc. and International Union of
Operating Engineers , Local No. 670, AFL-CIO.
Case 16-CA-4225
December 23, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
same Edwards and Orr told Kenneth Smith of the Union's efforts.
Secondly, we share the Trial Examiner's inability to comprehend how the
letter from the Employer's local lawyer could have been written if, as
Kenneth Smith later testified, the sole ground for the discharge was the
alleged, insubordination We note that the record clearly shows Kenneth
Smith provided information about the incident to the Employer's local
lawyer and, further, that he was unable, at the hearing, to recall the reason
he gave the lawyer for the discharge These considerations, and other lapses
in recall by Kenneth Smith, must weigh against his recall of the critical
events Finally, the testimony of the Boggs brothers shows that one
brother, William, was under the damaged truck when the critical
conversation began and both brothers denied they heard the discharge
discussion or the request by Kenneth Smith to Jerry Pat Smith to turn in
his timesheet, both of which, according to Kenneth Smith's testimony,
occurred immediately after Jerry Pat Smith's threats
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On June 22, 1971, Trial Examiner Frederick U. Reel
issued the attached Decision in this proceeding.
Thereafter, the Respondent filed exceptions 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 Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.'
FREDERICK U. REEL, Trial Examiner: This proceeding,
heard at Ardmore, Oklahoma, on April 27, 197 1,1 pursuant
to a charge filed January 12, and a complaint issued
February 26, presents primarily the question whether
Respondent, herein called the Company, discharged
employee Jerry Pat Smith on January 11 because of his
activity on behalf of the Charging Party, herein called the
Union.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
General Counsel and by Respondent, I make the following:
FINDINGS OF FACT
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Triad of Oklahoma, Inc., Velma,
Oklahoma, its officers, agents, successors, and as-
signs, shall take the actions set forth in the Trial
Examiner's recommended Order.
i The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd. 188 F 2d 362 (C A 3) We have carefully examined the record and
find no basis for reversing his findings
Moreover, we believe the record contains several considerations, not
fully developed by the Trial Examiner, that substantiate the Trial
Examiner's credibility resolution. First, it strains our credulity, given the
record, that Kenneth Smith, contrary to his denial, did not know about
Jerry Pat Smith's involvement in the Union's organizing activities prior to
the critical events of January 11 The record shows that Jerry Pat Smith
told Edwards and Orr about the organizing activities of the Union and the
I. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company, an Oklahoma corporation with its
principal office in Velma, is engaged in transporting oil and
oil field supplies and equipment. It annually provides
services valued in excess of $50,000 to large local
customers, including Atlantic Richfield Company and Pan
American Petroleum Corporation each of whom annually
receives goods and materials valued in excess of $50,000
directly from outside the State of Oklahoma. The Company
is therefore an employer engaged in activities affecting
commerce within the meaning of Section 2(6) and (7) of the
Act. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
Early in January 1971 Jerry Pat Smith started actively
i All dates herein refer to the year 1971.
194 NLRB No. 118
TRIAD OF OKLAHOMA 737
organizing among his fellow employees on behalf of the
Union. On Friday, January 8, Smith spoke to Hack
Edwards and Kevin Orr, two company supervisors, to
request that he be given either a raise in pay or a guaranteed
amount of work. Later that day Edwards and On told him
either that he would receive a guarantee of 80 hours every 2
weeks (as Smith testified), or that they would "try to
arrange it where possibly he might get 80 hours at the end
of the two weeks" (as Edwards testified). Smith then told
Orr and Edwards he was organizing for the Union. At that
point Orr stated that in view of Smith's union activity, On
would "have to omit all the promises we had made on that
particular thing." 2
B. The Discharge of Smith
On Saturday, January 9, when Smith was delivering oil,
he had a minor accident, backing over a lubricator (a joint
of pipe used to swab wells) and damaging it. Smith duly
reported the mishap to his dispatcher, and the Company
eventually repaired the damage at a cost of under $25. The
next workday for Smith, Monday, January 11, proved to be
his last, and must be described in some detail.
During the morning of January 11 Smith was told to
move out a reverse rig, which is a large pump and tank
mounted on a trailer, weighing about 75,000 pounds, and
costing about $55,000. Smith backed his -truck up to the
trailer, but as the truck nudged the trailer, the reverse rig
fell off, apparently because its wheels had not been blocked
and it had not been properly secured to the trailer. Smith
then tried to use the winch on his truck to put the rig back
on the trailer, but the chain on the winch dropped off the
sprocket, a problem which had occurred on that winch on
an earlier occasion. Smith duly reported this to the
mechanic, one Boggs, who went to fix the winch while
Smith had lunch. On Smith's return, he attempted again to
raise the rig with the winch, but this time the rig caught on
the tailboard of the truck, and as Smith could not stop the
winch in time, the resulting tension broke the universal joint
on the truck. The mechanic and his assistant crawled under
the truck to inspect the damage, and Smith descended from
the cab. At this point the company superintendent,
Kenneth Smith, and the latter's brother, Charles Smith, a
supervisor, came to the truck, having heard of the
difficulties there. The ensuing conversation, to some extent
the subject of conflicting testimony, is the prime focus of
this case.
Apparently Kenneth Smith began the conversation by
asking Pat Smith what the latter's troubles were, to which
Pat replied that he had none. Kenneth then said that Pat
would have to "straighten out" as he had had two mishaps
in 2 days. Pat replied that everyone would be "straightened
out" in the near future. Kenneth inquired as to what Pat
meant, but Pat replied, "Nothing." Kenneth repeated the
inquiry several times, but received no explanation other
than that he would find out in a few days. It is at this point
that the crucial conflict in testimony occurs.
According to Kenneth Smith, corroborated by his
brother Charles and by the two mechanics who had
emerged from under the truck and were listening, Pat Smith
put his gloves on the rig and threatened to whip both
Kenneth and Charles on the spot. Kenneth' Smith
thereupon discharged Pat. Kenneth testified that he had no
intention of discharging Pat for the accidents, and that he
discharged Pat for insubordinate conduct.
Pat Smith testified that after he declined to answer
Kenneth's questions as to what Pat meant by "straightening
out," Kenneth said, "You're not talking about the Union,
are you?" Pat's testimony continues:
And I said, "No, not necessarily, but," I said, "It
probably would help a lot."
And he said, "Well, I'll tell you this, things ain't going
to change here. I'll lock her up and shut her down
before we go union I don't have to work union people. I
can find people to work for me elsewhere."
Q. What else did he say at that time, if you recall?
A. He told me, he said, "In that case"-he asked
me if I was talking about the union and I said, "Yeah."
And he said, "Well, in that case, just get your time
sheet. I want you to hand your time sheet in."
It was at this point, according to Pat, that he swore at,
and threatened to whip, Kenneth and Charles Smith.3
C. Concluding Findings
The fundamental issue is whether the foregoing quotation
from Pat Smith's testimony is to be credited as against the
testimony of four other witnesses that the Union had not
been mentioned in the conversation at the time Pat
threatened to whip his supervisor. I am frank to say that I
found nothing in the demeanor of any witness to assist me
in this resolution; all appeared to be honest. Perhaps the
mechanic and his assistant, who corroborated Kenneth
Smith, may be called disinterested witnesses, but they are
still in the Company's employ. Pat Smith's testimony as to
his interview with On and Edwards on January 8, was
substantially corroborated by Edwards, and this fact must
weigh in Pat's favor in assessing credibility. Also the record
contains a letter from company counsel (not counsel in this
proceeding) to the Union, written only 2 days after the
discharge, in which counsel states that the two mishaps on
January 9 and I1 caused the Company to discharge Pat
Smith. Yet at the hearing before me Kenneth Smith
repeatedly stated that the accidents did not cause the
discharge, and that he had no intention of discharging Pat
until the latter challenged him to a fight. Kenneth Smith
testified that he so advised counsel who wrote the letter in
question and Smith could not explain why counsel set forth
the other grounds in his letter, and made no mention
whatsoever of the insubordination.
The task of reaching a decision in this matter strikes me
as one of unusual difficulty. The matter cannot fairly be
disposed of on grounds of "burden of proof." General
Counsel has this burden, but if his witness, Pat Smith, is
credited, the burden is carried. Pat Smith is an interested
witness and was not corroborated, but these facts do not
2 The quotation is from the testimony of Edwards, a witness called by
the Company, and was in response to a question by company counsel as to
whether Edwards and On had told Smith they "would withdraw any
guarantee or anything."
3 There is a conflict in testimony as to whether Pat later threatened to
kill Kenneth and Charles Smith . I have no doubt that he uttered threats of
serious import , but there is no suggestion that he made any move to harm
anyone except for his effort to engage in fisticuffs at the truck.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establish that he was fabricating. Kenneth Smith and
Charles Smith were also interested witnesses, but they were
corroborated by William and Jimmy Boggs. No doubt I
could resolve this case by crediting the latter two witnesses,
and indeed this is the strongest basis for deciding in favor of
the Company. Two counterfactors, however, militate in
favor of crediting Pat Smith's testimony. This would leave
the Boggs as testifying falsely in support of their Employer,
a judgment I am reluctant to reach. It is true, however, that
they heard their Employer's testimony, and that all persons
involved in this matter (not only Pat Smith but also the
company representatives) must have been aware that the
entire case turned on whether Kenneth Smith adverted to
Pat's union activity in the course of discharging him.
The two factors in Pat's favor are, first, that his outburst
appears completely irrational and totally unprovoked if I
credit the company version. Here is a man given the mildest
of reproofs, and engaging in an obscure discussion about
"straightening up," who suddenly threatens his Employer
with a whipping. At least Pat Smith's version is less foreign
to all knowledge of human behavior, for he places the
threat as a direct response to the discharge.4 Second, the
Company's local lawyer only 2 days after the discharge
writes a letter explaining it, which does not contain a single
word about the alleged insubordination, and rests the
discharge on grounds the Company later expressly
repudiated. I simply cannot comprehend how such a letter
could have been written if, as Kenneth Smith later testified,
the sole ground for the discharge was the insubordination.
Relying on these two factors, I credit Pat Smith's testimony
as to the conversation and the sequence of events. It follows
that his discharge was the direct result of his union activity,
and therefore violated Section 8(a)(3) and (1) of the Act.
Further, Kenneth Smith's statement that he would "shut
[the premises] down before we go union" and that "I don't
have to work union people. I can find people to work for me
elsewhere" violated Section 8(a)(1) of the Act. Finally, and
quite apart from the matters relating to the discharge
interview, the Company also violated Section 8(a)(1) by
Orr's statement to Pat Smith that the latter's union activity
would cause Orr to withdraw the assurances he had
previously given Smith that On and Edwards would help
him get 80 hours' work every 2 weeks.
CONCLUSIONS OF LAW
1. By discharging Jerry Pat Smith because of his union
activity, the Company engaged in an unfair labor practice
affecting commerce within the meaning of Sections 8(a)(3)
and (1) and 2(6) and (7) of the Act.
2. By stating that it would shut down its Velma
establishment rather than "go Union," that it did not need
to employ union adherents, and that a proposed improve-
ment in an employee's working conditions would be
withdrawn because of his union activity, the Company
engaged in unfair labor practices affecting commerce
within the meaning of Sections 8(a)(1) and 2(6) and (7) of
the Act.
THE REMEDY
I shall recommend the customary cease-and-desist order
together with the reinstatement of Smith with backpay
computed as provided in F. W. Woolworth Co., 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716.
I have considered carefully whether Smith's outburst and
threats to whip his supervisor disqualify him for reinstate-
ment. In view of the fact that he engaged in no physical
attack and limited himself to a verbal assault, and in view of
the fact that his outburst was in direct response to his
unlawful discharge, I find that Smith is not so disqualified.
See the discussion and court cases cited in J. P. Stevens &
Co., Inc., 157 NLRB 869, 878, fn. 8, enfd. 380 F.2d 292
(C.A. 2), cert. denied 389 U.S. 1005; see also N.L.R.B. v.
Vermont American Furniture Co., 182 F.2d 842, 843-844
(C.A. 2).
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended: 5
ORDER
Respondent, Triad of Oklahoma, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee because of his activity on behalf of, , or
membership in, International Union of Operating Engi-
neers, Local No. 670, AFL-CIO, or any other labor
organization.
(b) Threatening to shut its Velma, Oklahoma, operation if
the employees select a union to represent them.
(c) Stating that it will not employ union adherents.
(d) Withholding benefits from any employee, or stating
that it will withhold benefits, because of the employee's
union activity.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under the
Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer immediate and full reinstatement to Jerry Pat
Smith to his former job, or, if this job no longer exists, to a
substantially equivalent job, without prejudice to his
seniority or other rights and privileges, and make him whole
for any loss of pay suffered by reason of his discharge or
refusal of reinstatement, all in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of his right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
4 Whether the threat, uttered after the discharge, forfeited Pat Smith's findings, conclusions, and recommended Order herein shall, as provided in
rights under the Act is a matter discussed in "The Remedy," infra Section 102.48 of the Rules and Regulations, be adopted by the Board and
5 In the event no exceptions are filed as provided by Section 102 46 of become its findings, conclusions, and order, and all objections thereto shall
the Rules and Regulations of the National Labor Relations Board, the be deemed waived for all purposes.
TRIAD OF OKLAHOMA
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(d) Post at its plant at Velma, Oklahoma, copies of the
attached notice marked "Appendix." 6 Copies of said
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by the Respondent's
representative , shall be posted by the Respondent immedi-
ately upon receipt thereof , and be maintained by it for 60
consecutive days thereafter , in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered , defaced , or covered
by any other material.
(e) Notify the Regional Director for Region 16, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.?
6 In the event that the Board's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
7 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 16, in writing, within 20 days
from the date of this Order , what steps the Respondent has taken to
comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Jerry Pat Smith his former job and WE
WILL pay him for losses he suffered as a result of his
discharge in January 1971.
WE WILL NOT discharge or otherwise discriminate
739
against any employee because of his activity on behalf
of International Union of Operating Engineers, Local
No. 670, AFL-CIO, or any other union.
WE WILL NOT threaten to close our Velma operations
if they select a union to represent them.
WE WILL NOT threaten not to employ union
supporters.
WE WILL NOT withhold benefits , or threaten to
withhold benefits , from any employee because of his
union activity.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
right to join or assist the Operating Engineers or any
other Union.
Dated By
TRIAD OF OKLAHOMA, INC.
(Employer)
(Representative) (Title)
We will notify immediately the above -named individual, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement , upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
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 compliance with
its provisions may be directed to the Board's Office, 8A24
Federal Office Building, 819 Taylor Street , Fort Worth,
Texas 76102, Telephone 817-334-2921.