Vangas, Inc.

National Labor Relations Board - Board Decisions

Dec 19, 1967

168 N.L.R.B. 960 (N.L.R.B. 1967)

960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vangas, Inc. and General Teamsters Local 431, In-
ternational Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Case
20-CA-4371
December 19,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On September 29, 1967, Trial Examiner James
R. Webster issued his Decision in the above-enti-
tled case, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. He further found that Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended that
such allegations be dismissed. Thereafter, the
Respondent and General Counsel filed exceptions
and cross-exceptions, respectively, to the Trial Ex-
aminer's Decision, with supporting briefs,' and the
Respondent filed a brief in answer to the General
Counsel's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
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, cross-
exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Vangas, Inc., Fresno,
California, its officers, agents, successors, and as-
signs , shall take the action set forth in the Trial Ex-
aminer 's Recommended Order.
IT IS FURTHER ORDERED that those portions of
the complaint as to which no violations have been
found are hereby dismissed.
' The Respondent's request for oral argument is hereby denied as, in
our opinion , the record , including the exceptions and briefs , adequately
presents the issues and positions of the parties.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. WEBSTER, Trial Examiner: This proceeding,
with all parties represented, was heard in Fresno, Califor-
nia, on June 6, 1967, upon complaint of the General
Counsel and answer of Vangas, Inc., herein called the
Respondent. The complaint was issued on April 14,
1967, on charges filed January 16 and March 30, 1967.
The complaint alleges that Respondent violated Section
8(a)(1) and (3) of the National Labor Relations Act,
herein called the Act, by its interrogation of employees
and by its discharge of Allen A. Robins on January 4,
1967, because of his stated intention not to cross an an-
ticipated picket line at the premises of another employer
and because of his activities on behalf of General Team-
sters Local 431, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union. I
Upon the entire record and my observation of the wit-
nesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a California corporation with places
of business located in various States in the western part
of the United States and with its principal office located
at Fresno, California. Respondent is engaged in the
wholesale distribution of liquified petroleum gas (propane
and butane). In the course and conduct of its business
operations Respondent annually sells and delivers goods
and materials valued in excess of $50,000 directly to
customers located outside the State of California, and
purchases and receives goods and materials valued in ex-
cess of $50,000 directly from buyers located outside the
State of California.
Respondent is an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues and Statements of Facts
The facts are undisputed that the reason assigned by
Respondent for the discharge of Allen Robins on January
4, 1967, was his stated intention not to cross an an-
ticipated picket line at the premises of another employer.
An issue is whether or not, under the circumstances of
this case, Respondent's discharge of Robins for this
reason constitutes an unfair labor practice. Other issues
are whether Robins was discharged because of his activi-
ties on behalf of the Teamsters Union, and whether or not
employees were illegally interrogated.
Allen Robins has been employed by Respondent for 11
years as a transport driver. He worked out of Respond-
I Errors in the transcript have been noted and corrected.
168 NLRB No. 127
VANGAS, INC. 961
ent's Fresno terminal and was third man in seniority at
this terminal of seven full-time transport drivers. Re-
spondent employs a total of approximately 38 to 40
transport drivers at all terminals.
Respondent purchases propane and butane gases from
refineries and delivers these products to customers for
use in heating and cooking. Its transport drivers haul the
gas from refineries to Respondent 's terminals or stations
and also directly to large users. From Respondent's ter-
minals the gas is distributed on other trucks to local users.
Robins and the other transport drivers did not have regu-
larly assigned routes or hours of work; they were on call
24 hours a day to deliver gas or to pick up gas as needed.
Respondent ' s business is highly cyclical with the
winter or colder months being its busy season. During the
winter months Respondent purchases approximately 30
to 40 percent of the gas hauled by its Fresno transport
drivers from a Phillips Petroleum Company refinery
located at Avon, California. This refinery supplies other
terminals of Respondent in larger percentages as it is
located nearer other terminals . The employees at this
refinery are represented by the Oil, Chemical and Atomic
Workers International Union, and in the latter part of
1966 this union and the Phillips Petroleum Company
were engaged in contract negotiations at this refinery.
Respondent heard that a strike might be called for Janua-
ry 1, 1967.
Respondent 's employees are not represented by any
labor organization and have not been for approximately
3 years. Robins has been a truckdriver since about 1937
and has belonged to the, Teamsters Union since that time
except for the period of his military service and his period
of employment with Respondent . His interest in the
Teamsters Union has been well known to Respondent. In
April 1966, Robins, with other employees , met with
Robert M . Bragg, president of Respondent, Henry
Schneider , corporate secretary, and Frank Wyatt, su-
perintendent of transport operations, concerning a list of
grievances. Robins was a principal spokesman in this
meeting on behalf of the employees . At this meeting, Pre-
sident Bragg stated , "If you people want a union , you can
have a union, and I can deal with them ." He then left the
meeting.
In December 1966, Robins obtained some union
authorization cards from another driver and passed them
out to employees that had asked for them.
Because of the anticipated strike at Avon scheduled for
January 1, 1967, and because of the fact that January is
a very busy month each year for Respondent , Respond-
ent made inquiry among its transport drivers in the latter
part of December 1966 as to whether or not they would
cross the anticipated picket line. Frank Wyatt, superin-
tendent of the transport operations , made this inquiry and
asked each of the drivers, with the exception of one of the
full-time transport drivers and some of the part-time
transport drivers, if he were averse to crossing the picket
line if there was no violence . Robins is the only driver
who gave a definite negative answer. He stated that he
has been a member of the Teamsters Union and has been
driving for 30 years, and has never crossed a picket line
and would never cross a picket line unless it was a wildcat
strike. Several drivers stated that, if a majority of the
drivers crossed the picket line, they would do so also. A
majority stated they would cross the picket line . In consul-
tation with members of supervision , Respondent's pres-
ident , Robert Bragg, made the decision that Robins
should be terminated . He testified that he realizes the
crossing of a picket line is repugnant to most employees
and that he does not think it would be fair to excuse one
driver and require the other drivers to pick up gas at the
Avon Refinery, and further that Robins' refusal may in-
fluence other employees to refuse to pick up gas at this
refinery.
During the period involved herein , Respondent also in-
terviewed job applicants in the event it should become
necessary to hire additional drivers both because of the
strike and because of an anticipated increase in business'
in January due to weather conditions . These prospective
employees were asked whether or not they would cross
the expected picket line at the Avon Refinery.
On December 30, 1966, Respondent learned that the
strike at Avon had been postponed as negotiations were
extended for 1 week - until January 8, 1967.
On Wednesday, January 4, 1967, Robins was notified
of his termination and was told at the time that he was
being discharged for his refusal to cross the picket line at
Avon. He was told by Wyatt that he did not regard
Robins as loyal to the Company because of his attitude in
this matter . After his discharge his truck was driven by
other drivers. The temperature in January 1967 was
warmer than usual , and additional drivers were not hired.
On January 9, 1967, Respondent was informed that a
bargaining agreement had been consummated at the
Avon Refinery. No strike or picketing occurred.
A week or two after Robins ' discharge transport driver
Carroll McCaslin asked Superintendent Wyatt why
Robins had not been given an alternative like Respond-
ent's Sacramento drivers. Wyatt replied that Robins had
made such a fuss about having to cross the picket line that
that was the end of it.
B. Alleged Interrogations by Superintendent Wyatt
Regarding Union Activities
It is not alleged that Wyatt's questioning of employees
regarding their willingness to cross a picket line at the
Avon Refinery constitutes a violation of the Act. These
inquiries were predicated on business considerations and
did not contravene the proscriptions of the Act. How-
ever, it is alleged that in December 1966, Wyatt also il-
legally interrogated employees regarding their relations
with the Union. Employee Frank Weichel testified that in
December 1966 he had a conversation with Wyatt in
which he asked Wyatt if the boys had made any progress
with the Union, that Wyatt replied that he did not know,
and that he told Wyatt it must be kind of slow because
they haven 't passed out any cards yet. When confronted
with his affidavit given to a Board agent , he testified that
he guessed it was true that Wyatt asked him if he had
signed an authorization for a union . Employee Glenn
Hickman testified that in the latter part of December
1966, he had the following conversation with Super-
intendent Wyatt:
I think he asked me if I was a member of the Team-
sters or a member of a Union, and I said I had been,
and he asked me how I felt about the strike that they
were assuming would come off at this time, and I told
him I hadn 't given it much thought.
Wyatt testified definitely and unequivocally that he had
not asked any employee if he was a member of the Union
or had signed an authorization card. In the latter part of
December 1966, Wyatt questioned approximately 40
transport drivers of Respondent regarding their
willingness to cross the anticipated picket line at Avon
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Refinery, yet employee Hickman does not recall being
asked by Wyatt if he would be willing to cross the picket
line.
The purpose of Wyatt's questioning of the employees
was to determine whether or not Respondent would be
able to continue to pick up gas at the Avon Refinery in
the event of a strike. Hickman was a part-time employee
of Respondent and was also employed with another con-
cern. Wyatt testified that he asked Hickman if crossing
the picket line would affect his other job and that
Hickman replied that it would not. It does not seem
plausible to me that Wyatt would have dropped the
inquiry at the point indicated by Hickman. Weichel was
an unimpressive and uncertain witness. Although Wyatt
questioned approximately 40 employees about their
willingness to cross the picket line, no other employee
testified to any interrogation about union activities. I am
not convinced as to the accuracy of the recollections of
Hickman and Weichel and I do not credit their testimony
as to interrogations about union membership or the sign-
ing of union authorization cards. I find that Respondent
has not engaged in interrogations of employees violative
of Section 8(a)(1) of the Act.
C. Conclusions as to the Discharge of Robins
Regarding Respondent's discharge of Robins for his
stated refusal to cross an anticipated picket line at the
premises of another employer, the cases of Redwing Car-
riers, Inc., and Overnite Transportation Company
enunciate guidelines for resolution of this issue.2
Employees who refuse to cross a picket line at the
premises of another employer are engaged in protected
concerted activity, and the Act prohibits any reprisal
against employees engaging in such activity. But, an em-
ployer has a corresponding right to attempt to run his
business despite the sympathetic activities of the em-
ployees involved. Where these rights are in conflict and
the employer discharges an employee as reprisal for
failure to perform those duties which require the crossing
of said picket line, the employer's right to continue his
business prevails if it is clear that "the employer acted
only to preserve efficient operation of his business"; that
is, that his action was reasonably necessary to a con-
tinued and efficient operation of his business. The
Overnite case has similarities to the instant case in that it
involved truckdrivers not assigned to regular routes. In
that case a driver refused to cross a picket line to make a
pickup; the employer dispatched another driver who was
willing to cross the picket line and the pickup was made.
Respondent contends that, in order to continue an effi-
cient operation of its business and to continue to purchase
and load gas from the Avon Refinery, it was expedient
and necessary to terminate Robins. It contends that to
have permitted him to be relieved of that duty would have
been unfair to other employees who had expressed
reluctance to crossing the anticipated picket line, and
further that Robins' refusal might induce others to refuse
to cross the picket line.
Since the discharge of Robins constitutes a reprisal for
his exercise of a protected right, it must be shown that his
discharge was reasonably necessary to preserve Respond-
ent's right to continue an efficient operation. I find that
it was not reasonably necessary. For one thing the action
was premature. Robins was discharged on January 4;
negotiations at the Avon Refinery had been extended to
January 8; and a strike there was no certainty and in fact
did not occur. A majority of Respondent's drivers had ex-
pressed a willingness to cross the picket line; and since
drivers were not assigned regular runs, Respondent could
have avoided scheduling Robins for an Avon Refinery
run. Respondent contends, however, that Robins' con-
duct and expressions of his views regarding the picket
line might have influenced other drivers and caused an in-
terruption in operations. Because of Robins' well-known
union sympathies and his prior concerted activities, it
could reasonably be anticipated that he might try to in-
fluence other employees to take a stand similar to his on
the matter. But, at the time of Robins' discharge any
disruption of Respondent's operations was too specula-
tive and uncertain. The need to protect Respondent's
right to preserve an efficient operation had not reached
the point where Robins' right to engage in concerted ac-
tivities could be denied. I find that Respondent's
discharge of him on January 4, 1967, because of his ex-
pressed refusal to cross an anticipated picket line and
because his conduct might influence others to do likewise
constitutes an interference with, and restraint and coer-
cion of, employees in the exericse of rights guaranteed in
Section 7 of the Act and therefore a violation of Section
8(a)(1) of the Act.
The General Counsel also contends that Robins was
discharged not only for his stated refusal to cross a picket
line but also because of his activities on behalf of the
Teamsters Union. Although Robins passed out some
union authorization cards in December 1966, was an em-
ployee spokesman in a meeting with management on
grievances in April 1966, and was generally a union ad-
vocate, the evidence is insufficient to support the General
Counsel's contention in this regard. Robins had worked
for Respondent for 11 years and his attitude toward
unionism was well known to Respondent. Respondent
denies any knowledge of union solicitation by Robins in
December 1966, and General Counsel's witness Frank
Weichel does not establish such knowledge. Robins' ac-
tivities on behalf of the Union in December 1966 were
not substantial. The evidence of Respondent's motivation
in discharging Robins seems to be amply clear and to be
as set forth in prior paragraphs. I find that there has been
no discrimination against Robins because of his activities
on behalf of the Teamsters Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent, set forth in section
III, above, occurring in connection with Respondent's
operations described in section I, above, have a close, in-
timate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
2 Redwing Carriers, Inc., 137 NLRB 1545, enfd. 325 F.2d 1011
(C.A.D C ), cert. denied 377 U.S. 905. Overnite Transportation Co., 154
NLRB 1271, enfd. in part 364 F 2d 682 (C.A.D.C) The L. G. Everest
case, 142 NLRB 193, enforcement denied in relevant part 334 F.2d 312
(C.A 8), is distinguishable in that it does not involve a discharge but a
refusal to reinstate employees who had refused to cross a picket line at the
premises of another employer , the contention being made by the General
Counsel that they were similar to economic strikers.
CONCLUSIONS OF LAW
VANGAS, INC. 963
1. Respondent is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Allen A. Robins on January 4,
1967, because of his stated intention not to cross an an-
ticipated picket line at the premises of another employer
and because he might influence other employees to do
likewise, Respondent has engaged in an unfair labor prac-
tice within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practice affects com-
merce within the meaning of Section 2(6) and (7) of the
Act.
5. Respondent has not discriminated against Allen
Robins because of his activities on behalf of the Team-
sters Union and has not violated Section 8(a)(3) of the
Act.
6. Respondent has not engaged in interrogations of
employees in violation of Section 8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in an
unfair labor practice, I shall recommend that it cease and
desist therefrom and that it take certain affirmative ac-
tions which is necessary to effectuate the purposes of the
Act.
I shall recommend that Respondent offer Allen A.
Robins immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his
seniority or other rights and privileges and that Respond-
ent make him whole for any loss of pay that he may have
suffered by reason of his discharge, by payment to him of
a sum of money equal to that which he normally would
have earned from the date of the discharge to the date of
Respondent's offer of reinstatement, less net earnings.
Loss of pay shall be computed in accordance with the for-
mula set forth in F. W. Woolworth Company, 90 NLRB
289, and shall bear interest at the rate of 6 percent per
annum as set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, I
recommend that the Board issue, pursuant to Section
10(c) of the Act, the following:
ORDER
Vangas, Inc., its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging employees because they have engaged
in activities guaranteed in Section 7 of the Act.
(b) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights to
self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of
their own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of
such activities, 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 in Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Allen A. Robins immediate and full reinstate-
ment to his former or substantially equivalent position,
without prejudice to his seniority or other rights or
privileges, and make him whole for any loss of pay he
may have suffered by reason of his discharge, in the
manner set forth in the section of this Decision entitled
"The Remedy." If presently serving in the Armed Forces
of the United States, notify Allen A. Robins of his right
to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military and
Service Act, as amended, after discharge from the Armed
Forces.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at all terminals where transport drivers are em-
ployed, copies of the attachednotice marked "Appendix."3
Copies of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by
Respondent's authorized representative, shall be posted
by it immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous 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.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.4
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges a violation of Section
8(a)(3) of the Act, and insofar as it alleges that Respond-
ent has interrogated employees in- violation of Section
8(a)(1) of the Act.
3 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
4 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director,
in wasting, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT discharge employees because they
have engaged in activities guaranteed in Section 7 of
the National Labor Relations Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights to self-organization, to form, join, or
336-845 0 - 70 - 62
964 DECISIONS OF NATIONAL
assist labor organizations , to bargain collectively
through representatives of their own choosing, or to
engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protec-
tion , or to refrain from any or all such activities ex-
cept to the extent that such rights may be affected by
an agreement requiring membership in a labor or-
ganization as a condition of employment as
authorized in Section 8(a)(3) of the Act.
WE WILL offer to Allen A. Robins immediate and
full reinstatement to his former or substantially
equivalent position without prejudice to his seniority
or other rights and privileges , and will make him
whole for any loss of earnings he may have suffered
as the result of his discharge.
WE WILL notify Allen A. Robins if presently serv-
ing in the Armed Forces of the United States of his
right to full reinstatement upon application in ac-
LABOR RELATIONS BOARD
cordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
Dated By
VANGAS, INC.
(Employer)
(Representative) (Title)
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, 13050 Federal
Building, 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone 556-3197.