United Oil Mfg. Co.

National Labor Relations Board - Board Decisions

Mar 10, 1981

254 N.L.R.B. 1320 (N.L.R.B. 1981)

111) BOARD
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I DECISIONS OF NATIONAL LABOR RELATIONS
United Oil Manufacturing Co., Inc. Amalgamat-
ed Food Employees Union Local 590, a/w
United Food and Commercial Workers Interna-
tional Union, AFL-CIO. Cases 6-CA-12975
and 6-CA-13 136
March 10, 1981
DECISION AND ORDER
On September 5, 1980, Administrative Law
Judge Joel A. Harmatz issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a brief in support of
the exceptions, and the Respondent filed cross-ex-
ceptions and a brief in opposition to the exceptions
of the General Counsel and in support of its
exceptions.
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, find-
ings, and conclusions of the Administrative Law
to the extent consistent herewith and to
adopt his recommended Order as modified herein.
1. We agree that the Administrative Law Judge
properly found that Respondent violated Section
of the Act by promising wage increases and
promotions, and by granting same, for the purpose
of discouraging union activity. The Administrative
Law finds that such promotions and wage
increases were granted to five employees, while ac-
tually a sixth employee, Greg Hevell, who is in-
cluded in the appropriate unit, was also granted a
wage increase and promotion at that same time. As
in the case of the other five employees, the Re-
spondent offered no business justification for
wage increase and promotion which oc-
curred shortly after the Respondent gained knowl-
edge of the union campaign. Hevell was only told
the raise and promotion was due to the fact that
the other employees behind the desk were promot-
ed to shift managers. We conclude, as with the
other five employees, that Hevell's wage raise and
promotion was given for the purpose of discourag-
ing union activity in violation of Section of
the Act.
2. The Administrative Law Judge concluded that
the unfair labor practices committed herein were
not of a degree sufficient to prevent the holding of
a free and fair election in the future and dismissed
the and allegations in the complaint. We
on our own careful analysis of this case, we have determined
that the Respondent, by the number and extent of its unfair labor
has engaged in such egregious and widespread misconduct as to
demonstrate a general disregard for its employees' fundamental statutory
We therefore find appropriate modification of the recommended
Order to include broad injunctive language against the further commis-
sion of any unfair labor practices the Respondent. See Foods.
242 NLRB 1357 (1979).
254 NLRB No. 179
do not agree and we will adhere to the teachings
of the Supreme Court as set forth in the
case:
If the Board finds that the possibility of eras-
ing the effects of past practices and of ensuring
a fair election by the use of traditional reme-
dies, though present, is slight and that employ-
ee sentiment once expressed through cards
would, on balance, be better protected by a
bargaining order, then such order should issue.
We find that the unfair labor practices committed
by the Respondent warrant the issuance of a bar-
gaining order in this case.
The record shows that the Respondent embarked
on its course of unlawful conduct upon learning of
the Union's organizational campaign, when it coer-
cively interrogated employee Zahuranec concern-
ing the union activity of coworkers; and by in-
structing Zahuranec to report on union activity of
coworkers; and by promising wage increases,
granting wage increases, and promoting employees
to discourage their support of the Union. The
above unfair labor practices of the Respondent oc-
curred in a 5-day period from October 28 to No-
vember 3, 1979, and directly affected 7 of the 29
unit employees. Further, we are not unmindful of
the Respondent's willingness to commit additional
unfair labor practices. We note that in March 1980,
with no justification other than to punish union
supporters, the Respondent has failed to properly
reinstate returning strike participants by denying to
them overtime hours and pay in violation of Sec-
tion and (I) of the Act.
The commission of such serious unfair labor
practices enumerated above, in a unit as small as
the unit involved herein, makes a fair election
doubtful, if not impossible. By its actions, Respond-
ent clearly demonstrated to the employees that i t
alone controlled their economic destiny. After as-
certaining the identity of the principal union sup-
porters, Respondent sought to "buy them off' with
rewards and promotions. When that failed, Re-
spondent took the reverse tack and punished them
by denying overtime hours and pay. The message
to the employees was that Respondent had the eco-
nomic means at its disposal t o achieve the result it
desired. Such a powerful message cannot be erased
or forgotten. Therefore, under these circumstances,
the use of traditional remedies will not suffice. Ac-
cordingly, we conclude that a bargaining order
would best protect employee sentiment already ex-
pressed through authorization cards.
v Pocking Inc., 395 U.S. 575, 614-615 (1969).
The
;lgree,
unit bargain-
Ing:
All
been designateda employees
8(a)(5)
2(6)
2(5)
8(a)(l)
8(a)(3)
-by
9(b)
11. - -
9(a)
8(a)(5) (1)
10(c)
1. l(c):
2(a)
Amalgamated
cial
UNITED OIL MANUFACTURING CO. 132 1
Administrative Law Judge found, and we
that the following employees constitute a
appropriate for purposes of collective
full-time and regular part-time employees
of the Employer at its Stop 21, Kylertown,
Pennsylvania, facility, including diesel fuel sta-
tion employees, gasoline station employees,
store employees and motel employees; exclud-
ing employees of the leased operations, confi-
dential employees and guards, professional em-
ployees and supervisors as defined in the Act.
We also agree with the Administrative Law
Judge that as of November 11, 1979, when the
Union made its final demand for recognition,
which Respondentthe reiected, the Union had
by 17 in a unit of 29,
clearly a majority.
For the reasons expressed above, we find that
Respondent violated Section and (1) of the
Act by its refusal to recognize and bargain with
the Union and that a bargaining order, effective
from November 11, 1979, is an appropriate and
necessary remedy.
1. The Respondent is an employer engaged in
commerce within the meaning of Section and
(7) of the Act.
2. The Amalgamated Food Employees Union
Local 590, a/w United Food and Commercial
Workers International Union, AFL-CIO, is a labor
organization within the meaning of Section of
the Act.
3. Respondent independently violated Section
of the Act by coercively interrogating an
employee concerning the union activity of cowork-
ers; by instructing an employee to report on the
union activity of coworkers; and by promising
wage increases, granting wage increases, and pro-
moting employees to discourage their support of
the Union.
4. Respondent violated Section and (I) of
the Act denying unfair labor practice strikers
Delores A. Maines, Julio C. Leid, and Eugene S.
Zahuranec overtime benefits they enjoyed prior to
the strike.
5. All full-time and regular part-time employees
of the Employer at its Stop 21, Kylertown, Penn-
sylvania, facility, including diesel fuel station em-
ployees, gasoline station employees, store employ-
ees and motel employees; excluding employees of
the leased operations, confidential employees,
guards, professional employees and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective-bargaining within the
meaning of Section of the Act.
6. The aforementioned Union, since November
1979. and at all times material herein. has been
and is now the exclusive representative of all em-
ployees in the aforesaid appropriate unit for the
purposes of collective bargaining within the mean-
ing of Section of the Act.
7. Since November 11, 1979, Respondent has re-
fused to bargain collectively with the above-named
labor organization as the exclusive bargaining rep-
resentative of all its employees in an appropriate
unit, and thus has engaged in and is engaging in
unfair labor practices within the meaning of Sec-
tion and of the Act.
ORDER
Pursuant to Section 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, as modi-
fied below, and hereby orders that the Respondent,
United Oil Manufacturing Co., Inc., Kylertown,
Pennsylvania, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
Substitute the following for paragraph
"(c) In any other manner interfering with, re-
straining, o r coercing employees in the exercise of
rights guaranteed them under Section 7 of the
Act."
2. Insert the following as paragraph and re-
letter the subsequent paragraphs accordingly:
"(a) Recognize, effective from November 11,
1979, and, upon request, bargain collectively and in
good faith with Food Employees
Union Local 590, a/w United Food and Commer-
Workers International Union, AFL-CIO, as
the exclusive representative of all employees in the
appropriate unit, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
The appropriate unit is:
"All full-time and regular part-time employees
of the Employer at its Stop 21, Kylertown,
Pennsylvania, facility, including diesel fuel sta-
tion employees, gasoline station employees,
store employees and motel employees, exclud-
ing employees of the leased operations, confi-
dential employees, and guards, professional
employees and supervisors as defined in the
Act."
3. Substitute the attached notice for that of the
Administrative Law Judge.
IIECISIONS
ORDER
W E
1 1 ,
All
STATEMENT
JOEL HARMATZ,
14,
8(a)(l)
8(a)(3)
8(a)(3) (1)
8(a)(5)
L. Gissel
2(2), (6),
OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY OF THE

NATIONAL LABOR RELATIONS BOARD

A n Agency of the United States Government

W E WILL NOT interrogate our employees
concerning their union activities o r tell them
to spy on coworkers and to report on their
union activity.
W E WILL NOT promise our employees bene-
fits, grant them benefits, or promote them in
order to discourage them from engaging in ac-
tivity on behalf of Amalgamated Food Em-
ployees Union Local 590, a/w United Food
and Commercial Workers International Union,
AFL-CIO, o r any other labor organization.
W E WILL NOT discourage membership in the
aforesaid Union, o r any other labor organiza-
tion, by denying employment benefits to our
employees because they have engaged in activ-
ity on behalf of a union.
WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed them by Section 7 of
the National Labor Relations Act.
W E WILL restore overtime benefits enjoyed
prior to the strike by Julio Leid, Delores
Maines, and Eugene Zahuranec, and w e shall
make them whole for losses they sustained be-
cause w e denied such overtime after the strike,
with interest.
W E WILL recognize, effective from Novem-
ber 1979, and, upon request, bargain collec-
tively and in good faith with Amalgamated
Food Employees Union Local 590, a/w
United Food and Commercial Workers Inter-
national Union, AFL-CIO, as the exclusive
bargaining representative of all employees in
the appropriate unit with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The appropriate bargaining
unit is:
full-time and regular part-time employ-
ees at our Stop 21, Kylertown, Pennsylva-
nia, facility, including diesel fuel station em-
ployees, gasoline station employees, store
employees and motel employees; excluding
employees of the leased operations, confi-
dential employees and guards, professional
employees and supervisors as defined in the
Act.
DECISION
OF THE CASE
A. Administrative Law Judge: This
proceeding was heard by me on May 29 and June 23,
1980, in Clearfield, Pennsylvania, upon an initial unfair
labor practice charge filed on December 7, 1979, and a
consolidated complaint issued on March 1980, which,
as amended, alleges that Respondent independently vio-
lated Section by coercively interrogating employ-
ees concerning union activity, by surveillance of union
activity, by instructing an employee to report on union
activity of coworkers, and by promising and granting in-
creases and promoting employees to discourage union
activity, and that Respondent violated Section
and (I) of the Act by discharging employee Andrea
Winters, in reprisal for union activity. The complaint fur-
ther alleges that a strike commencing on or about No-
vember 12, 1979, was caused and prolonged by the
aforesaid unfair labor practices, and that Respondent vio-
lated Section and of the Act by discriminating
against certain strikers upon their unconditional offer to
return to work. Finally the complaint alleges that Re-
spondent violated Section and (1) of the Act by
refusing to recognize and bargain with the Union as ma-
jority representative of employees in the appropriate unit
under authority of N. R. B. v. Manufacturing
Company, 395 U.S. 575 (1969). In its duly filed answer,
Respondent denies that any unfair labor practices had
been committed. After close of the hearing, briefs were
filed on behalf of the General Counsel and Respondent. -
Upon the entire record in this proceeding, including
my opportunity directly to observe the witnesses while
testifying and their demeanor, and upon consideration of
the post-hearing briefs, I make the following:
I. JURISDICTION
Respondent is a corporation with a place of business in
Kylertown, Pennsylvania, the sole facility involved in
this proceeding, from which it is engaged in the oper-
ation and management of a truckstop consisting of a
retail gasoline station, diesel fuel station, store, and
motel. During the 12-month period ending December 1,
1979, in the course of said operation, Respondent derived
gross revenues exceeding $500,000, and received goods
and materials valued in excess of $5,000 shipped directly
from points outside the Commonwealth of Pennsylvania.
The complaint alleges, the answer admits, and I find
that Respondent is now, and has been at all times materi-
al herein, an employer engaged in commerce within the
meaning of Section and (7) of the Act.
11. 'THE
international
AFL-CIO,
2(5)
111. UNFAIR
8(a)(3)
21"
1979'
'
Shimmel,
8(a)(l)
8(a)(3)
8(a)(l)
I 1,
granted.2
the representation w h ~ c h the
tact~cal
Gixret doclrine assessed unitair
Ihc t h ~ s All
inqu~ry.
1323 UNITED OIL MANUFACTURING CO.
LABOR ORGANIZATION INVOLVED Respondent admits that in the early afternoon on Octo-
The complaint alleges, the answer admits, and 1 find
that Amalgamated Food Employees Union Local 590, a/
w United Food and Commercial Workers
Union, is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion of the Act.
T H E ALLEGED LABOR PRACTICES
A. The Issues
At the heart of this proceeding is the question of
whether a remedial order directing Respondent to recog-
nize and bargain with the Union is justified by the instant
record. It is the theory of the General Counsel that Re-
spondent, shortly after the advent of union activity at the
Kylertown truckstop, gained knowledge thereof through
an informer, and embarked on a campaign of intimida-
tion, commencing with an instruction that said employee
report on events taking place at the first union meeting.
It is contended that an act of union-related reprisal took
place that same evening, following unlawful surveillance
of the union meeting, when Respondent discharged
Andrea Winters. Additionally, during the following
week it is claimed that Respondent promised increases,
promoted five employees, and granted them increases to
discourage union activity. According to the complaint,
Respondent's initial unlawful reaction to the organiza-
tional campaign was followed by a strike which com-
menced on November 12, 1979, and which continued
until March 10, 1980, when an unconditional offer to
return to work was made on behalf of the strikers. It is
the General Counsel's contention that this was an unfair
labor practice strike, and that Respondent violated Sec-
tion and (1) of the Act, by failing to properly re-
instate strikers Delores Maines, Julio C. Leid, and
Eugene Zahuranec.
B.Background
This case is concerned with the segment of an initial
organizational campaign waged among Respondent's 30
employees at "Stop on Interstate 80 in Kylertown,
Pennsylvania. At that location, Respondent owns and
operates a gasoline and diesel fuel station, a store, and a
motel. Also at that site are other services, including a
restaurant, a truck garage, and a barbershop, none of
which are operated by Respondent, but by third persons
pursuant to a lease or concession agreement. Employees
of the leased operations are not involved in this proceed-
ing even though within the Union's organizational effort.
Respondent's work force at the Kylertown truckstop
is subject to overall supervision by General Manager
Cecil Felix. Essentially all alleged unfair labor practices
set forth in the complaint are attributed to Felix.
There was no history of union representation at the
truckstop. The instant organizational campaign opened in
late October when employee Julio Leid contacted
the Union and ultimately arranged for a union meeting to
be held at her home at 4 p.m. on Sunday, October 28.
Unless otherwise indicated all dates refer to 1979.
ber 28, prior to the meeting, General Manager Felix was
informed thereof. Five employees attended the first
union meeting; namely, Leid, Eugene Zahuranec, Joyce
Hockenberry, Sharon and Robert Pearce, Jr.
All attending signed authorization cards, and thereafter
signatures were solicited from among coworkers at the
truckstop.
The General Counsel claims that Cecil was in the vi-
cinity of Leid's home on October 28 at a time corre-
sponding to the union meeting, under circumstances con-
stituting surveillance violative of Section of the
Act.
Dischargee Andrea Winters did not attend the Octo-
ber 28 union meeting. However, she claims to have
signed a card at the home of Leid, shortly before report-
ing to work for her 11 p.m. shift. Upon arrival for work
that same evening, she was discharged by Felix. The
General Counsel claims that this discharge was for dis-
criminatory reasons violative of Section and (1) of
the Act.
At some time during the week following the October
28 union meeting, one employee was told he would re-
ceive a wage increase and at least five others were re-
classified and designated as "managers," while being af-
forded wage increases. Here again, Respondent is
charged with violations.
On November 3, the Union's International representa-
tive, George Nestler, personally contacted Felix, de-
manding recognition of Respondent's employees in the
appropriate unit. This was followed by a letter dated No-
vember 5, directed to James Gray, Respondent's presi-
dent, which also included a demand for recognition. In a
telephone conversation, on November Felix informed
Nestler that recognition would not be conferred, as he
wished a "fair election." In that conversation, Nestler
charged that Felix had theretofore interfered with the
possibility for a fair election.
On November 11, a union meeting was held wherein
employees voted to strike in protest of the alleged unfair
labor practices. The strike began on November 12, 1979,
and continued until March 10, 1980, when an uncondi-
tional offer to return to work was made on behalf of the
strikers.
In the interim, the Union filed a representation petition
on December 7, 1979, in Case 6-RC-8654. After hearing
thereon, the Regional Director issued a Decision and Di-
rection of Election on January 29, 1980. On March 19,
1980, the Union's request to withdraw said petition was
By letter of March 10, 1980, an unconditional offer to
return to work was made on behalf of the strikers. The
General Counsel contends that the strike was an unfair
On behalf o f Respondent it is contended that the various actions o f
the Union with respect to proceeding, in
unit preference expressed by the Union was rejected. signify that the
Union was o f the position that a fair election could be conducted. What-
ever interpretation might be placed o n the Union's actions in that
connection. whether or not a bargaining order should issue under the
must be in the light of labor practices sub-
stantiated by record in proceeding. other references are irrel-
evant to that
1 \24 1)ECISIONS
8(a)(3)
( 1 )
1.
a.m.
Felix
t r ~ c k s t o p . ~
e f f ~ r t . ~
V e l i x
Za-
Rasically,
II
lnjected
the
h ~ m
Zahuranec'3
"was'just
concerning
find
8(a)(l)
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Lockey
di~missed.~
that
a
auto-
mob~le.
Sec.
8(a)(l) ~nforming
bargaming
substantiallon
1s dism~rsed.
OF NATIONAL LABOR RELATIONS BOARD
labor practice strike, that the participants therein were
entitled to the protection accorded unfair labor practice
strikers, and that Respondent violated Section and
of the Act by failing to restore Delores Maines to her
former position, and by denying strikers Leid, Zahur-
anec, and Maines overtime assignments that they had
regularly enjoyed prior to the strike.
C. Concluding Findings
Interference, restraint, and coercion
a. The October 28 union meeting
On October 28 a union meeting was held as scheduled
at the home of Julio Leid. Eugene Zahuranec was
among the employees invited to attend. Because sched-
uled to work from 10 to 6 p.m. on October 28, ac-
cording to Zahuranec, at approximately midday, he went
to the office of and inquired as to how Felix felt
about a union. Felix indicated that he did not know, but
questioned Zahuranec as to why he had asked. Zahur-
anec reported that a union meeting was to be held at
Leid's house at 4 p.m. and requested time off to attend.
Felix then queried Zahuranec as to the identity of others
who were to attend. Zahuranec replied that fuel jockeys,
desk people, and field clerks would be there. Felix then
specified individuals, asking if they would attend. Zahur-
anec denied knowledge. Felix told Zahuranec to go to
the meeting and to call him at the conclusion thereof to
report what had happened. In the course of the conver-
sation, Felix opined that the Union was no good, and
that it had caused problems at another
According to the further testimony of Zahuranec, on
Monday morning, October 29, he received a telephone
call from Felix, in which the latter inquired as to what
went on at the meeting, who attended, and who the insti-
gator of union activity was. In response, Zahuranec iden-
tified those who attended, and indicated that it was his
understanding the Union had been contacted by Julio
Leid. Felix went on to question Zahuranec as to why he
had not called Felix and as to whether restaurant em-
ployees were involved. At the close of the conversation,
Felix appealed to Zahuranec to refrain from disclosing
that Felix was aware of the organizational
admitted to this conversation and that he was informed o f the
union meeting. However, he denied questioning Zahuranec as to any
aspect o f it, but claims that all information was volunteered by the latter.
He also denied that he made a request that Zahuranec report back on
what transpired at the meeting. I prefer the testimony o f Zahuranec.
who, at the time o f the hearing, remained i n Respondent's employ.
huranec's account seemed the more likely and was entirely believable.
I did not regard Felix as a trustworthy witness.
Here again Icredit Zahuranec. Felix admitted to calling Zahuranec
at 9 a.m. on October 29, but claims that he did so to find out whether
Zahuranec's father was going to do a personal favor for him. After dis-
cussing that subject. is the sense o f Felix's testimony, that Zahurenec
the Union, volunteering the names o f the people who attended
union meeting. Felix denied asking further questions and again indi-
cated that Zahurunec volunteered to keep informed as to union ac-
tivity. Felix further testified that a few days later Zahuranec approached
him asking Felix to tell anyone inquiring as to their prior phone conver-
sation that it merely related to the favor Felix requested o f
father, and that the party Zahuranec told Felix about a party at
Julio's." I have heretofore expressed doubt Felix's credulity.
Based on the credited testimony of Zahuranec, I
that Respondent violated Section of the Act by
Felix questioning the latter concerning union activity of
coworkers, by instructing Zahuranec to report on the
union activity of coworkers, and by his broad question-
ing of Zahuranec as to what transpired at the union
meeting of October 28.
The complaint also alleges that Respondent violated
Section through Felix's surveillance of the union
meeting. In this regard, it is clear that, prior thereto,
Felix had acquired knowledge of the time and location
of the meeting, which took place between 4 and approxi-
mately 5 p.m. on October 28 as scheduled. Leid testified
that at approximately or 5 p.m., as she and union
representative Nestler attempted to obtain organizing
materials from Nestler's car which was then parked in
front of her home, she observed Felix in his personal
automobile pass by her house at a rate of speed which
she estimated to be at between 25 and 30 mph in a 45
mph Felix denied that he was in the vicinity of
Leid's home on October 28.
Notwithstanding my misgivings concerning the verity
of Felix, and accepting the fact that Leid was an incum-
bent employee at the time of the hearing, I find the sur-
veillance allegation unsupported by credible proof. The
testimony of Leid and Nestler was gravely suspect. As
shall be seen, infra, Leid in collaboration with Andrea
Winters and Vera afforded highly material testi-
mony in connection with the discharge of Winters which
impressed me as pure fabrication. As for Nestler, his
avowed ability to make an after-the-fact positive identifi-
cation on the basis of an instantaneous, passing glimpse at
dusk of one he had never before seen created sufficient
doubt to reflect adversely upon his credulity. I did not
believe Leid or Nestler and this allegation based on their
testimony shall be
b. The promise of wage increases and grant of
promotions and wage increases
Uncontradicted evidence establishes that on November
3, enclosed with their paychecks, certain employees re-
ceived an announcement signed by Felix, which indicat-
ed as follows:
To: All Employees of Stop 21 Fuel Station
Subject: Assignment of Areas of Responsibility and
Rate Change.
Here again, his testimony did not ring true, and I regarded o f incum-
bent employee Zahuranec the more probable.
Leid was corroborated by Nestler, who related that, though he did
not know Felix at the time, his presence was called to his attention by
Leid whereupon he immediately turned, observing the driver o f the
Although Nestler at the time had not as yet met Felix, he assert-
ed that he was able to confirm the identification upon subsequently meet-
ing Felix 5 days later.
The complaint alleges that Respondent independently violated
o f the Act by its employees on or about October 28
that it was futile for them to select the Union as their repre-
sentative. From my examination o f the record, no evidence was adduced
in o f this claim by the General Counsel, and this allegation
8(a)(I)
8(a)(l)
activity.I
' alsa
1
also adm~tted
testimony
cumulat~ve,
1.
2.
28.8
1
8
prlor 1
te\timony,
UNITED OIL MANUFACTURING CO.
As of 27 October 1979, the following employees
of Stop 21 are designated Shift Managers and are
responsible for supervising the working activities of
personnel assigned to their shift:
Joyce Hockenberry
Jean Kerns
Marlene Grate
Delores Maines
Julio Leid (Store
Manager)
Cecil Felix
Manager
Julio Leid, at times prior to the above announcement,
had been employed for 2 years as a store cashier. Ac-
cording to her uncontradicted testimony, Leid, on Octo-
ber 29, was first informed as to the possibility of a pro-
motion and wage increase. At that time, she was called
into the office of Felix, who indicated that he was con-
sidering giving her more authority, inquiring further if
Leid were willing to assume management of the store at
a 20-cent increase. In this instance I accept Leid's uncon-
tradicted testimony. As mutually corroborative testimony
by Felix and Zahuranec reveals, this occurred after Felix
had received information pointing to Julio as the instiga-
tor of union activity.
Respondent's evidence includes no explanation for this
sudden upgrading of the above-mentioned employees and
the grant of an increase, shortly after acquisition of
knowledge that a union campaign was in progress. Pur-
suant to-established Board precedent, new benefits an-
nounced and/or granted during an organization cam-
paign are unlawful unless the employer can establish that
such benefits were based on business justification disasso-
ciated from the existence of union activity. While no
effort has been made by Respondent to refute the infer-
ence of illicit motivation in this respect, the alle-
gations are bolstered by the propensities disclosed
through testimony of former Shift Manager Hevell. The
latter credibly, and without contradiction, testified that
subsequently during the course of the strike Felix told
Hevell that if he had known about the Union sooner he
would have reclassified the "fuel jockeys" as "island su-
pervisors." Based on the foregoing, I find that Respond-
ent violated Section by promising wage increases
and promotions, and by granting same, for the purposes
of discouraging union
It is noted in this respect that Zahuranec credibly testified that
on or about October 30 Felix advised Zahuranec that a 25-cent wage in-
crease had been obtained for him. Zahuranec acknowledged that he
never received the increase. Although Felix denied the foregoing, he re-
lated that during the first week after the union meeting Zahuranec ap-
proached him and requested a raise. Felix's testimony in this respect con-
formed with a consistent pattern of unbelievable testimony through
which Felix shifted statements to Zahuranec, which believe he himself
made. Felix that he sought approval of said increase from
headquarters. Although Zahuranec's in this respect is some-
what I credit his account as the more likely.
2. The alleged discrimination
a. The discharge of Andrea Winters
The discharge of Winters occurred on October 28,
shortly after I I p.m., several hours after the union meet-
ing which took place at the home of Julio Leid. She did
not attend that meeting, but claims, with corroboration
from Leid, that in route to work shortly before 11 p.m.
she stopped at Leid's home and executed a signed au-
thorization card.
Prior to her discharge, Winters had been employed as
a fuel clerk (cashier) on the I I p.m. to 7 a.m. shift. Un-
disputed credited evidence establishes that at least since
January 1979 Winters in that capacity sustained cash
shortages at the close of her shift more frequently than
any of her coworkers.
The groundwork for her discharge originated with
action by Respondent taken prior to the advent of union
activity. Thus, on September 25, 1979, a notice to em-
ployees was posted which recited as follows:
To: All Fuel and Store Clerks
As of September 25, 1979, all employee [sic] are
responsible for any and all shortage [sic] amount-
ing to two dollars ($2.00) and over.
Shortage will be paid on the first payday after
shortage has occurred.
3. After the second offense amounting to fifteen dol-
lars ($15.00) and over; means automatic dismissel
uless [sic] proven that the shortage was not entire-
ly their own fault.
Winters, though aware of this newly established
policy, on October 24, 1979, had a cash shortage of $19
which was unexplained. Again, on Saturday, October 27,
1979, Winters was short $28.32.
Judy Rolley, Felix's secretary, confirmed credibly that
there was no explanation for Winters' shortage of Octo-
ber 23. She related that, as part. of her duties, she
checked the "daily truck reports" completed by fuel
clerks for each shift and compared the cash on hand at
the end of each shift with register readings and the data
entered by each individual cashier on her respective
report. Rolley testified that she reported for work at 9
a.m. on Sunday, October Upon her arrival, Felix,
who had apparently pulled the reports from the follow-
ing evening, informed her that Winters had been short
again, and instructed her to check out Winters' report
because she was "going down the road if she was short."
According to Rolley, she carefully checked the data rel-
ative to Winters' cash status on October 27, and could
find no explanation for the shortage. Before leaving at
approximately p.m. on October 28, Rolley informed
Felix to this effect, at which point Felix indicated "I've
had it with that damn girl . . . she's going down the
road."
Rolley credibly testified that, while she normally worked Monday
thru Friday, she also worked weekends when the end of the month fell
on a weekend or to taking a vacation. find, consistent with her
that she worked on October 28, because her scheduled vaca-
tion was to begin that following Monday.
1.126 1)ECISIONS OF I3OARD
any 10:45
1
a ~ t i v i t y . ~
shortages,1°
had."
Sec-
10:45 p.m.
Quest~ons
believ~ng
In
p.m.
10 p.m.
as
Rnal 10
meetlng
Lackey,
I 1 p.m.
Winters
as
L e ~ d complic~ty
vlctlm dixrimina-
tion.
lo
attr~butable
w~tness
"
llevell
Icstimony
add~ng
In influ-
c~ iccd In speculat~on.
tion 8(a)(3)
l 2
rio~ure lhc strike
12
I 1
".
vote.13
I2
l 4
uncondi-
tionalIy.l5 who
8(a)(3)
the
discharpe,
arlse
Relat~ons
In
IS
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practlce
motivat~ng
d Srore.r, Inc.. d E Super Vduc Div~sion,
'"ee 2.
NATIONAL LABOR RELATIONS
According to Winters' own testimony, she had not
manifested support of the union until p.m. on
October 28. Further, there is no hard evidence, nor basis
for fairly drawn inference on this record, that as of
p.m. on October 28, Respondent suspected that Winters
had engaged in union
Respondent has offered convincing proof that Winters
violated its published policy concerning and
that its action in terminating her was consistent with the
declared penalty o f "automatic" discharge. This evidence
was not countered, on behalf of the complaint, by credi-
ble proof either that Winters prior to her discharge en-
gaged in union activity, o r that Respondent had any rea-
sonable basis for suspecting that she Also absent
was evidence showing that the shortage policy had been
disparately applied. In sum, I find that the General
Counsel has not maintained by preponderance of the evi-
dence that Winters was terminated in violation of
Although Winters, with corroboration from Leid, testified that she
signed a card at approximately on October 28, deep suspicion
is held that such was the case. Winters, though invited, did not attend the
union meeting earlier that day. According to Leid, "something" came up
and Winters could not attend. Winters' own explanation for her absence
was garbled and unimpressive. held as to Winters' procrastina-
tion concerning the Union on October 28 were intensified by the testimo-
ny of Vera Lockey. Lockey, a good friend o f Winters, lived only a few
doors away from Leid. Though among those invited to the meeting, she,
like Winters, did not attend. Within Lockey's testimony was a reference
plainly calculated to support a contention that Respondent had reason-
able basis for that Winters. prior to her discharge, had partici-
pated union activity. Thus. Lockey testified that Winters was at her
home at least twice on October 28, first between 2 and 4 and second
between 6 and This testimony o f Lockey places Winters within a
few hundred feet o f Leid's home, the site o f the meeting, during a sub-
stantial segment o f the day. Yet, the testimony offered by the General
Counsel would have me believe, she did not attend the meeting o r sign a
card prior to her departure from Lockey's home at p.m., but re-
turned to the area a third time i n route to work to sign a card. Lockey's
explanation for not attending the union was also unbelievable.
According to she had a hangover as a result of a night on the
town i n State College, Pennsylvania. with Winters the previous evening.
Respondent's Exhibit 6, however, shows that Winters worked the
to 7 a.m. shift on Saturday, October 27. The testimony of Lockey and
that, on October 28, they separately went to the home of Leid
where they signed cards is rejected predicated upon unbelievable testi-
mony. M y disbelief o f this entire segment of the General Counsel's proof
contributed to my adverse impression o f Leid's general reliability. Her at-
tempt at corroboration in connection with this highly material issue
placed in with others in an effort to bend the truth in
support o f the claim that Winters was a o f unlawful
Her testimony in other areas has been rejected where not corrobo-
rated by evidence from credible sources or unless based on facts within
the knowledge o f Respondent but not contradicted.
Idid not believe the testimony o f Winters that her shortage o f Oc-
tober 27 was not her fault, but to erroneous recordings on
the gas pumps. This constituted a self-serving argument on behalf of an
unreliable and was not taken by me as anything more. The fact
that her cash checked out with all other documentation would not neces-
sarily mean that the pumps were i n error or that a shortage did not occur
which could fairly be deemed the responsibility o f Winters.
The General Counsel claims that a statement made by Felix to
on October 28 indicated that Felix suspected that Winters and her
friend Lockey were involved i n the organizational effort. This related to
o f Hevell that Felix, as he could recall, told him that Winters
would be discharged, that he wished that Vera Lockey would
quit. Although this testimony plainly discloses that Felix disapproved o f
Winters and Lockey, to assume that his attitude was any sense
hy union activity would be to indulge brazen
and (I) of the Act, and accordingly, the com-
plaint shall be dismissed in that regard.
3. The alleged post-strike discrimination
a. The of
The complaint alleges that the strike which began on
November was caused and prolonged by Respond-
ent's unlawful conduct and hence was an unfair labor
practice strike. In this connection, it is noted that on No-
vember the Union was first informed that Respondent
would not honor its request for recognition, but pre-
ferred an election. Later that evening, a union meeting
was held. According to George Nestler, the Union's In-
ternational representative, the purpose of that meeting
. . was to inform all the people of the events that had
happened and what the response of the Company was, at
this time . . . And what we, as a group, could do in the
future to gain recognition." He claims that because of
the alleged unfair labor practices, including the wage in-
creases, the discharge of Winters, and the surveillance of
the October 28 union meeting he conducted a strike
Those attending the November I I meeting opted
to strike and pickets appeared at the truckstop the next
day.
Having found that, prior thereto, Respondent created
a serious obstacle to representation by virtue of its un-
lawful attempt to influence employees by promises of
benefits, and actual grant of promotions and wage in-
creases, I find that the strike which began on November
was caused, at least in part, by the aforesaid unfair
labor practices.
On March 10, 1980, the strike ended with an offer to
return to work made on behalf of all strikers
Apparently, pursuant thereto, all strikers
wished reemployment were restored. The allega-
tions based on the post-strike treatment are limited to al-
leged curtailment of the employment benefits of strikers
I n so finding, I have not overlooked certain circumstances sur-
rounding the discharge, including the fact that Felix returned to
truckstop on Sunday to personally effect the rather than using
Hevell to communicate to Winters his intention in that regard. Any suspi-
cion, however, that might therefrom, when weighed against other
credible facts on this record, fails to overcome the deficiencies in the
General Counsel's case. Also considered, but deemed inconclusive, was
the fact that during a prehearing interview with an agent o f the National
Labor Board, Felix expressed a ground unrelated to shortages
as contributing to the discharge decision. In this latter respect, this refer-
ence is deemed no more than an aggressive act o f bias emerging from
human tendency. One embroiled i n controversy frequently overreaches
attempting to cast the opposition i n the most unfavorable light possible. I t
assumed that no more was involved here. The foregoing was not
viewed as rising to the level of a shifting defense undermining the other-
wise valid grounds for the discharge.
The only other unfair labor practices involved here related to the
conversations between Felix and Zahuranec. Yet. there i s no evidence
that Zahuranec as of November II had communicated the substance o f
those incidents to the Union or, for that matter, to anyone else. Indeed.
the only interrogation mentioned in Nestler's testimony related to that o f
employees at the Bell restaurant. The unfair labor findings based
on Zahuranec's testimony are not considered as among the
causes o f the strike.
See C E C 221 N L R B
1321, 1322 (1976).
Jt. Exh.
MA1
Julio
action."le
SO."'^
8(a)(3) (1)
shift.I8
l a Larand Inc., 197.
" Corporation. 10 ( 1978).
I s
the
a.m.
VUFACTURING
8(a)(3) (1)
8(a)(3)
(1)
1.
Gissel
UNITED OIL CO. 1327
Leid, Maines and Zahuranec upon their reinstatement
after the strike.
b. Leid
Leid testified without contradiction and in this in-
stance credibly that, prior to the strike, she, during over-
time hours, assisted in the taking of a physical inventory
at the end of each month. It is undisputed that, upon her
return, Leid was not afforded such opportunity to earn
overtime pay.
Because of the nature of the strike, Respondent, pursu-
ant to established Board policy, was required to reinstate
"all its employees who participated therein to their
former positions or, if such positions no longer exist, to
substantially equivalent positions, without impairment of
their seniority and other rights and privileges" dismiss-
ing, if necessary, any persons hired as replacements on
and after "the inception of strike Where resto-
ration is not accorded under such conditions, the burden
is upon the employer to demonstrate "it had a substantial
and legitimate business reason for not doing In the
case of Leid, the defense is based exclusively on testimo-
ny of Felix through which he vaguely alluded to prob-
lems experienced with the accuracy of the inventory. To
accommodate them, according to Felix, he dispensed
with overtime, instead taking the inventory with assist-
ance of the employee on duty at the time. No explana-
tion was offered as to how the accuracy of the inventory
could be improved under such procedure. Indeed, one
would naturally assume that the opportunity for error
would be enhanced by the utilization of an employee
whose responsibility for ongoing store operations would
be a distracting influence upon her role in connection
with the inventory. I find the testimony of Felix in this
respect t o be unpersuasive and incredible. As Respond-
ent has failed to establish any supervening economic jus-
tification since the commencement of the strike for its
denial of overtime to Leid, it thereby violated Section
and of the Act by failing to extend the same
privilege upon her restoration at the conclusion thereof.
c. Delores Maines
Prior to the strike, Maines was a fuel desk cashier.
Upon her return to work in 1980, she was not accorded
that position, but was restored as a store cashier, a posi-
tion she had not previously occupied. This occurred in
spite of the fact that Cindy Carson, an employee who
did not occupy a fuel clerk position prior to the strike,
continued thereafter to be retained in that capacity.
Maines testified that she did not like the position of
store clerk as well as her prestrike job. However, the
former seemed to me to involve less onerous work and
Maines did not advise management concerning her pref-
erences until May 1980. When she did so, she was reas-
signed to the fuel desk on the swing
See Leisurelies, 213 NLRB 198 (1974).
See Weather Tee 238 NLRB 2
Prior to the strike, and until October 28, when Winters was dis-
charged. Maines' assignment on fuel desk was on a "swing shift"
basis. After the discharge of Winters, she worked as the latter's replace-
ment from I I p.m. to 7 until the strike began.
On the other hand, the record shows that, as store
clerk, she was not awarded the overtime customarily en-
joyed in her prestrike position as fuel clerk. Respondent
has not shown that this failure to restore Maines with all
the benefits previously enjoyed to have been justified by
supervening economic considerations. Accordingly, Re-
spondent thereby violated Section and of the
Act.
d. Steve Zahuranec
Zahuranec after the strike was restored to his former
position as a fuel jockey. Respondent's payroll records
show that prior to the strike and since January 1, 1979,
Zahuranec was assigned overtime during 39 separate
weeks. After the strike, he was offered overtime on but a
single occasion and declined it. According to Zahuranec,
his prestrike overtime was attributable to the fact that he
regularly worked on Sundays, an overtime shift, and also
approximately twice weekly when he earned a half hour
of overtime for transporting oil from Respondent's stor-
age area to its sales area with his own pickup truck.
Felix testified that since the strike, oil and gasoline
sales had declined significantly and that in consequence
fuel jockeys were not assigned overtime except on what
may be considered an emergency fill-in basis. Also the
fall off in oil sales volume enabled transport of oil with-
out need for a motor vehicle and permitted this work to
be done during regular working hours. Payroll records
in evidence are not inconsistent with this testimony and I
credit Felix in this respect.
However, the reduction in sales volume fails to explain
the denial, after the strike, of the additional overtime
shift Zahuranec enjoyed prior to the strike. Respondent's
operation after the strike continued on a round-the-clock,
7-day basis. From all appearances, premium pay was as
costly before the strike as after and no evidence was ad-
duced specifically as to why this expense was not to be
sustained at its conclusion. Accordingly, in this limited
respect, I find that Respondent violated Section
and of the Act by failing to provide Zahuranec with
the overtime he enjoyed prior to the strike.
A. The Refusal To Bargain
Preliminary statement
The consolidated complaint in this proceeding alleges
that the unfair labor practices alleged therein entailed "a
course of conduct precluding the holding of a fair elec-
tion among the employees in the unit." Accordingly, it is
claimed that entry of a remedial order requiring Re-
spondent to recognize and bargain with the Union as ex-
clusive majority representative of employees in the ap-
propriate unit is warranted under authority of N.L.R.B.
v. Packing Co., Inc., 395 U.S. 575 (1969). Such
relief was authorized by the Supreme Court under condi-
tions where "the extensiveness of an employer's unfair
labor practices in terms of their past effect on election
conditions and the likelihood of their recurrence in the
future . . . [indicates] . . . that the possibility of erasing
1 2 8
(or
slight."lg
8(a)(5).
All
- -
1980.20
S
z 0 I 3. " th~s
5ignature In
IS, i r heen
assessing Unton's
shall of
authenticating her
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the effects of past practices and of insuring a fair election therewith, the propriety of a Union's demand ought be
a fair rerun) by the use of traditional remedies, controlled solely with reverence to knowledge possessed
though present, is by the employer when it opts to reject a demand, which,
as here, on its face was coextensive with the unit ulti-
2. The demands for recognition mately deemed appropriate. Here, no substantial vari-
Respondent, in defense of the refusal to bargain, first
contends that the Union's various requests for recogni-
tion and bargaining were defective and insufficient to
support a violation of Section The initial request
was made orally on November 3 when Nestler appeared
at the truckstop simply informing Felix that "we had the
majority of the employees signed up" and was present
for "the purpose of union recognition." This was fol-
lowed by a letter, dated November 5, through which the
Union effected a formal demand for recognition, describ-
ing the unit sought as follows:
full-time and part-time employees employed by
United Oil Corporation at your Kylertown Truck
Stop 21, Clearfield County.
Excluding: All other employees and guards, profes-
sional employees and supervisors as defined in the
Act.
On November 11, by telephone, Nestler again iterated to
Felix a demand for recognition, at which point, Felix ex-
pressed the desire for "a fair election."
Nonetheless, Respondent contends that the aforesaid
demands were in an inappropriate unit as the Union at all
times material sought inclusion of employees of conces-
sionaires. The defense in the circumstances is lacking in
merit. Insofar as this record discloses, all formal and in-
formal communciation by the Union as to the employees
sought was confined to employees of Respondent. Hence
the claim on behalf of Respondent that the requests for
recognition were fatally defective is based on matters
collateral to the exchange between the parties which pre-
ceded rejection of recognition. It rests on the fact that
the organization drive was not only waged among Re-
spondent's employees at the truckstop, but also employ-
ees of a restaurant operated independently pursuant to
lease. Only after the Union filed its representation peti-
tion in Case 6-RC-8654 on December 7 did it become
manifest that the Union sought inclusion of the restau-
rant employees in the unit. In his Decision and Direction
of Election dated January 29, 1980, the Regional Direc-
tor concluded that restaurant employees were not em-
ployed by Respondent, that no joint employer relation-
ship existed which would warrant their inclusion, and
that therefore said individuals were to be excluded.
The question presented is whether a demand, though
sufficient to apprise the employer of the employees
sought at the time of rejection, is imperiled by a subse-
quently manifested dispute within the framework of that
general unit description which is subsequently in a repre-
sentation proceeding resolved against the Union. I think
not. The principle endorsed by the Supreme Court in
Gissel, supra, is remedial in nature, and, as such, is to be
construed and applied without frustration through tech-
nical conceptions founded upon the irrelevant. Consistent
395 U.S. at 614
ation appears in the scope of the unit defined in the
Union's letter of November 5 and that ultimately set
forth as appropriate in the Regional Director's Direction
of Election of January 29, The record is devoid
of evidence signifying that on November 11, when Felix
rejected the Union's demand, Respondent was mindful
that the Union was seeking inclusion of restaurant em-
ployees within the unit. Insofar as this record discloses,
Respondent was not apprised of that fact until sometime
after the Union filed its election petition on December 7.
The subsequently declared position of the Union seeking
to include within the unit a class of employees which
later was rightfully excluded constitutes no more than a
supervening event which failed to alter the facts existing
at the time that recognition was rejected, and serves as
no impediment to the availability of the special remedy
sanctioned by Gissel Packing Co., supra.
B. The Appropriate Unit
The complaint alleges, the answer admits, and I find
that the following employees constituted a unit appropri-
ate for purposes of collective bargaining:
All full-time and regular part-time employees of the
employer at its Stop 21, Kylertown, Pennsylvania,
facility, including diesel fuel station employees, gas-
oline station employees, store employees and motel
employees; excluding employees of the leased oper-
ations, confidential employees and guards, profes-
sional employees and supervisors as defined in the
Act.
C. The Union Majority
On behalf of the General Counsel's claim that the
Union represented a majority, some 20 authorization
cards were received in evidence. The cards themselves
include a clear and unambiguous designation which on
their face authorize the Union to represent and bargain
on behalf of the signer. No dispute exists as to the cards
executed by employees listed on Appendix B attached
hereto. [Appendix B omitted from publication.] Said
cards are found to have been authenticated by credible
evidence and to represent valid designations contributing
to the Union's alleged majority in this proceeding. Based
thereon, I find that as of November I I, when the Union
made its final demand, which Respondent rejected, it
possessed at least 13 signed designations.
Compare Jt. Exh. with Jt. Exh.
It is noted in connection that a properly authenticated card
bearing the of David F. Hoover, Jr.. was received evidence.
However, as that card was dated November has not counted
in the status. Further. the card of Vera Lockey is re-
jected. Lockey, together with corroborating witness Leid, afforded in-
credible testimony in connection with the union activity of Andrea Win-
ters. Although I count the card Julio Leid, because her testimony
own designation was supported by collateral evidence
Continued
is
Morie Inc.,
(1969),
that
of Lockey
\~rspect
111at \he
rejected
prwr cr~tical for count-
Ing 1
5 ,
1'479. based 1 In
e.g.,
Monufocturing
tes-
t i m ~ n y . * ~
$5
$50."
H e ~ e 1 1 , ~ ~
McDowell.
McDowell,
that
in-
2 2 ~mproperly
1 Whlle
23
includable
~n
the Instant In
some
1329 U N I T E D OIL M A N U F A C T U R I N G CO.
A dispute exists as to validity of the authorization
cards in evidence bearing the signatures of Marion
Welker, Charles Gibbons, and Jean Kerns.
Respondent challenges the card of Charles Gibbons as
having been executed upon an improper representation.
The alleged infirmity is founded upon the segment of tes-
timony exacted from Gibbons on cross-examination by
Respondent's counsel, which is set forth below:
Mr. Zamboldi: Did another employee present it
[the authorization card] to you?
Gibbons: Yes. Sharon Shimmel.
Mr. Zamboldi: When she requested that you sign
it, what did she tell you?
Gibbons: They just told me that they were trying
to get a union in at the truck stop and that's all she
told me.
Mr. Zamboldi: Did she tell you that you were
the only one at the stop that hadn't signed a card at
that time?
Gibbons: Yes she did.
In counting the card of Gibbons, I note that such a shot-
gun response to prejudicially leading examination with
respect to the issue of fraud in the inducement is deemed
too unreliable to warrant credence with respect to repre-
sentations made to Gibbons at the time he signed. Fur-
thermore, Gibbons read the card before signing and
there neither objective nor other form of evidence sug-
gesting that he relied upon any such statement in desig-
nating the Union. In Phillips,
187 NLRB 340
the Board stated:
We continue to believe that a showing, without
more, of a misrepresentation as to the number of
others who have signed is insufficient to invalidate a
clear and unequivocal designation card signed by an
employee. This is so because such a card must be
presumed to express the individual intent of the
signer regardless of the wishes of others. . . .
Where the objective facts, as evidence by events
contemporaneous with the signing, clearly demon-
strate that the misrepresentation was a decisive
factor in causing an employee to sign a card, we
shall not count such card in determining the
Union's majority. However . . . where the only in-
dication of reliance is the signer's subsequent testi-
mony as to his subjective state of mind when sign-
ing the card, such showing is insufficient to invali-
date the card.
Rased on the foregoing, even if convincing evidence ex-
isted that Gibbons' card was solicited on a representation
all others had signed, i t would, in the circumstances
a truthful nature, the authenticating testimony in the case of is
and my general distrust thereof requires rejection of testimony
actually signed the card prior to the critical date. The card of
Andres Winters is on grounds that she was lawfully terminated
to the date assessment of the Union's majority. In
the card of Delores Maines, have not overlooked the fact that it
was dated November 1, 1979, but not actually signed until November
on the credited testimony of Maines. find that she did
fact designate the Union on November 5, and that her card contributes to
the alleged majority of the Union in this proceeding.
presented here, be counted as a valid designation of the
Union. Respondent's challenge to the card of Gibbons is
therefore found lacking in merit and his card shall be
counted towards the Union's majority in this case.
Respondent also contests the cards of Jean Kerns and
Marion Welker. It is claimed that both were executed
upon representations that initiation fees would be $5 if
they signed before, but $50 if they waited until after the
Union were recognized. See, N.L.R.B. v. Sovoir
Co., 414 U.S. 270 (1973). The testimony
of Kerns and Welker that any misrepresentations were
made prior to completion of their designations is discred-
ited. Kerns impressed me as laboring under a bias, which
was confirmed by her testimony that she neither read
nor understood the implications of signing. Her attempt
to repudiate her card struck as based upon contrived
With respect to Welker, her signature was solicited by
Kerns. She claims that Kerns told her that "if you sign it
now, it would cost you . . . if the Union got in and if
you didn't sign it and the Union got in, it would cost
you As indicated, Welker's card was dated No-
vember 10. As in the case of Kerns, I find that substan-
tial credible evidence does not exist substantiating that
such a representation was made prior to her execution
thereof. Welker's lack of capacity for recollection was
obvious. Indeed she testified that it was possible that the
statement concerning initiation fees might have been
made after she signed her card. If such a representation
was made, and I doubt that it was, her testimony was
too uncertain to establish grounds for voiding an other-
wise valid designation.
Based on the foregoing, I find that, as of November
11, the Union possessed 17 valid designations from unit
employees. The parties stipulated that as of that date the
unit consisted of at least 27 employees. The status of
three others was disputed: discriminatee Andrea Winters,
shift manager Gregory and Kenneth
For reasons heretofore stated, Winters has
been excluded and Hevell included. With respect to
whom the General Counsel would exclude,
and Respondent include, it is my view the record is
inconclusive as to his status. In any event, the issue need
not be resolved. For assuming that he was properly
Kerns' card was dated October 28. In finding that it was
executed prior to November I I, it is noted that she testified that she was
asked to sign a card by Leid "probably around the first week in Novem-
ber, imagine." unwilling to credit testimony of Leid that she ob-
tained the completed card from Kerns on November 3, an inference that
the Kerns' card was executed in advance of the critical date is supported
by testimony of Welker. Thus, Welker signed on November 10, and as
her card was solicited by Kerns, it is fair to assume that Kerns had al-
ready done so.
Felix was assisted by Shift Supervisor Greg Hevell. The complaint
alleges that Hevell was a supervisor and agent of Respondent. In his
post-hearing brief, however, the General Counsel "acknowledges that
Hevell is in the unit as a nonsupervisory employee." Previous-
ly, the Regional Director for Region 6 of the National Labor Relations
Board issued a Decision and Direction of Election on January 29, 1980.
which Hevell was excluded from the unit as a statutory supervisor. In
proceeding, though issue was joined via the pleadings this
regard, no effort was made to litigate the status of Hevell. In the circum-
stances, but with reluctance, I shall accept the General Counsel's
post-hearing concession.
1\0 IIECISIONS LAIjOR BOARD
cludable,
29.z4
Coriclusions lo the
Hevell.
sla~us
involved.25
order.26
8(a)(5)
8(a)(3)
and
" rhough
omillcd
' 5 e.g. . C & E Inc.. & Super Voluc 1
Z s Cu l~orn iu Pcller M I / /
backpay
F. Wmlworrh Compariy,
(1950),
(1977)."
2(6)
2(5)
8(a)(l)
8(a)(3)
I q c )
2 7 lsis di Co.,
lR Sec. of
Regulat~ons Nat~onal Relat~ons
Sec. the
its
rhall walved
I OF NATIONAL RELATIONS
the Union as of November I I, had been desig-
nated by 17 employees in a unit of
D. as Refusal To Bargain
In my opinion, the unfair labor practices found herein
are subject to remedy in conventional fashion under con-
ditions adequate to facilitate an atmosphere in which a
fair election could be conducted. Respondent's unlawful
conduct except for those entailed in the restoration of
strikers ended prior to the Union's first formal demand
for recognition on November 3. Certain violations in-
cluding interrogation, instructing an employee to engage
in surveillance, and promising a benefit to Zahuranec, all
involved unfair labor practices with respect to an em-
ployee who initially had volunteered to Respondent in-
formation concerning the union activity of coworkers.
Evidence that, in other respects, any representative of
management sought to or actually participated in any
conversation, coercive or otherwise, with an employee
concerning the Union during the course of the campaign
is limited to a brief exchange between Felix and Shift Su-
pervisor It is true that other unfair labor prac-
tices in the form of the upgrading of five employees to
supervisory positions, and the grant of increases to this
group, involved serious unfair labor practices. With re-
spect thereto, conventional remedies under the National
Labor Relations Act are ineffective to restore the
quo ante. Nonetheless, those benefits were extended to
only 5 of some 29 employees, and occurred a month
before the Union filed its representation petition. Indeed,
insofar as the credible evidence on this record reveals,
Respondent's unlawful conduct was manifested towards
only six employees, with no unlawful threats of reprisal
or discrimination The Board has acknowl-
edged that not all "serious unfair labor practices . . . are
sufficiently egregious to warrant a bargaining
Although the line between patterns of misconduct which
meet the test of pervasiveness is seldom free from doubt,
having considered the total circumstances in this case, on
balance, I am not convinced that the unfair labor prac-
tices herein were of a degree sufficient to prevent the
holding of free and fair election in the future, and, ac-
cordingly, I shall dismiss the and (I) allegations in
the complaint.
E . General Remedial Provisions
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that Re-
spondent be ordered to cease and desist therefrom and to
take certain affirmative action designed to effectuate the
purposes and policies of the Act.
Having found that Respondent violated Section
(1) of the Act by failing to provide unfair labor
practice strikers Leid, Maines, and Zahuranec overtime
they enjoyed prior to the strike, Respondent shall be or-
dered to restore such privileges immediately, and to
Appendix C attached hereto lists employees whose cards,
contested by Respondent, have been counted as valid designations. [Ap-
pendix C from publication.]
See, Stores. C E Division. 22 N LRB
1321. 1327.
Company, 219 NLRB 435. 439 (1975).
make whole said discriminatees for earnings lost by
virtue thereof, with to be computed o n a quar-
terly basis pursuant to W. 90
NLRB 289 with interest us prescribed in Florida
Sreel Corporarion, 231 NLRB 651
I. The Respondent is an employer engaged in com-
merce within the meaning of Section and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section of the Act.
3. Respondent independently violated Section
of the Act by coercively interrogating an employee con-
cerning the union activity of coworkers; by instructing
an employee to report on the union activity of cowork-
ers; and by promising wage increases, granting wage in-
creases, and promoting employees, to discourage their
support of the Union.
4. Respondent violated Section and (I) of the
Act by denying unfair labor practice strikers Delores A.
Maines, Julio C. Leid, and Eugene S. Zahuranec over-
time benefits they enjoyed prior to the strike.
5. Except as heretofore found, Respondent has not en-
gaged in any other unfair labor practices within the
meaning of the Act.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record in this case, and pursu-
ant to Section of the Act, I hereby issue the fol-
lowing recommended:
The Respondent, United Oil Manufacturing Co., Inc.,
Kylertown, Pennsylvania, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
union activity, instructing employees to engage in sur-
veillance and to report on the union activity of cowork-
ers and promising wage increases, granting wage in-
creases, or reclassifying o r promoting employees to dis-
courage them from supporting a union.
(b) Discouraging membership in a labor organization
by denying overtime benefits, or otherwise discriminat-
ing against employees with respect to their wages, hours,
or tenure of employment because they have engaged in
activity protected by the Act.
(c) In any like or related manner interfering with, co-
ercing, or restraining employees with respect to rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Restore overtime benefits enjoyed by Julio Leid,
Eugene Zahuranec, and Delores Maines prior to the
See, generally, Plumbing Heating 138 NLRB 716 (1962).
In the event no exceptions are filed as provided by
the Rules and o f the Labor Board. the
findings, conclusions, and recommended Order herein shall, as provided
in 102.48 o f the Rules and Regulations. be adopted by Board and
become findings, conclusions, and Order, and all objections thereto
be deemed for all purposes.
102.46
CO.
2s
(c)
1331 UNITED OIL MANUFACTURING
strike, and make them whole for the discriminatory
denial thereof following their reinstatement in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Post at its place of business in Kylertown, Pennsyl-
vania, copies of the attached notice marked "Appendix
Copies of said notice, on forms provided by the
In the event that this Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
Respondent's authorized representative, shall be posted
by Respondent immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.