Vantage Petroleum Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1980

247 N.L.R.B. 1492 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vantage Petroleum Corp. and Local 808, Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 29-CA-
6147
February 28, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On March 15, 1979, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Respondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
The Administrative Law Judge concluded that the
General Counsel did not prove that Respondent
refused to consider hiring the successor employees
from Exxon who were members of the Union for
discriminatory reasons in violation of Section 8(a)(3)
and (1) of the Act. We agree.
The essential facts are as follows. On December 7,
1977,' Respondent was awarded a license by the State
of New York to operate gasoline service stations on
various parkways throughout the State. These stations
had formerly been managed by Exxon and Mobil.4
The employees at the Exxon stations were represented
by the Union which had a collective-bargaining
agreement with Exxon. The employees at the Mobil
stations were unrepresented. Prior to receiving the
state license on December 7, Respondent had decided
to pay station attendants according to its own wage
structure, starting at the minimum wage, and to hire
' The General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us that
the resolutions are illcorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
The Administrative Law Judge inadvertently stated that it was Magnani's
rather than Schmittmeyer's testimony that Respondent's witnesses "failed to
contradict." Further, the Administrative Law Judge inadvertently named
Potestio rather than Abbatiello as the employee who most likely picked up job
applications from Respondent. These errors, however, do not affect the result
and are hereby corrected.
its own employees complement rather than to hire the
employee complement then working at the Exxon and
Mobil stations.
Also on December 7, Thomas Nasti, a union
steward for Local 808 at the Exxon stations, called
Stephen Magnani, Respondent's official in charge of
hiring. Speaking on behalf of himself and the other
Exxon employees, Nasti asked Magnani as to possible
employment by Respondent.5 Magnani appeared inter-
ested until Nasti mentioned what he was earning as an
Exxon employee. In response to what Nasti perceived
as sudden hesitation, Nasti said, "[W]ell, look . . .
I'm not talking about salary right now. What I want
to speak to you about is just employment in general.
. ." The conversation ended with Nasti indicating he
would wait to hear from Magnani and Magnani
responding affirmatively. On December 8, union
business agent Mahoney telephoned Magnani and told
him that the Union represented the former Exxon
employees, and that the Union wanted to get certain
named employees hired,' as well as have a meeting
with Respondent. Magnani told Mahoney that he
could not make a decision then as to hiring, but would
take applications from "anyone and everybody who
came along." Magnani also agreed to attend a meeting
at the union business office on either December 16 or
17.
In mid-December Nasti again telephoned Magnani.
Nasti asserted that the men were waiting, and noted
that Magnani had indicated "he would be down to
speak about employment." Magnani stated he could
not tell him anything further at that time and that he
would get back to Nasti.
On December 16 or 17, Magnani went to Local
808's business office for a meeting as agreed during the
December 8 conversation between Magnani and Ma-
honey. Those present included Nasti, Assistant Busi-
ness Agent McGann, and Magnani. McGann asked
Magnani what he intended to do about the men
presently employed by Exxon. Magnani, after first
saying nothing, indicated that he came to listen but
that he could not make any decisions of any kind.
We agree with the Administrative Law Judge that the Board has
jurisdiction. However, Members Jenkins and Truesdale do not rely on his
discussion of the intimate connection test since the Board no longer applies
that test; see National Transportation Service. 240 NLRB 565 (1979).
' All dates hereinafter will be 1977 unless otherwise indicated.
' Respondent was to begin operating the service stations after January I,
1978.
During this conversation. Nasti did not inform Magnani that he was a
shop steward nor was there any mention of the Union.
' Mahoney identified 10 persons he was asking Respondent to hire. The
Administrative Law Judge credited Mahoney's testimony that he talked to
these employees and that they only wanted to continue to work at their old job
rates and not at different rates as in effect at the new employer.
247 NLRB No. 202
1492
VANTAGE PETROLEUM CORP.
McGann asked him to sign papers indicating that the
men would be considered for employment as members
of Local 808. Magnani said he would not sign
anything.'
In the meantime, on December 12, Magnani as-
signed the responsibility for the selection of nonsuper-
visory employees for the parkway stations to William
Schmittmeyer, service station manager for Respon-
dent.' Applications for the positions were generated by
putting a sign in the window of Schmittmeyer's service
station, checking names supplied by Magnani, placing
an advertisement in the local newspaper, and tele-
phoning people who Schmittmeyer knew were looking
for jobs. George Gitzler, vice president of Respondent,
visited most if not all of the parkway stations, spoke to
some of the managers (in the presence of some
employees), and told them that, if they were interested
in employment, to secure applications from Magnani
or Schmittmeyer and to apply at the office. By
December 26, Schmittmeyer had selected all the
people he needed.
On December 27, Nasti asked Magnani for applica-
tion forms. He was told they could be obtained at the
office. Another Exxon employee picked them up. On
December 29, armed with the completed application
forms, Nasti and a small group of Exxon employees
went to respondent's office. A heated exchange took
place between Nasti and Gitzler. Nasti declared
himself the spokesman for the "guys" at the service
stations. This triggered Gitzler's inquiry as to whether
Nasti or the employees in general were representing
the Union. Nasti identified himself as a union steward
and it was made clear to Gitzler that the employees
were applying for the same positions they currently
held. Gitzler glanced over the applications and told
the group that all the jobs had been filled.'' He added
that the major consideration for Respondent in
choosing personnel was economic and that Respon-
dent could not afford and was not willing to pay the
wage rates then being paid at the parkway stations.
Gitzler was then asked what were the wage rates being
paid to those hired by Respondent. Gitzler described
Respondent's employment policies and noted that its
service station employees received the minimum wage
as starting salaries. This did not satisfy Nasti and the
others who insisted that Respondent hire the Exxon
men at their current wage rate and with union
representation. Gitzler followed up by asking whether
' The record does not support the assertion made by the dissent that
Magnani refused to make any provision for the hiring of the Exxon
employees. What the record shows is that Magnani was unwilling to reach an
agreement with the Union at that meeting concerning the hiring of Exxon
employees.
Prior to December 12 Magnani was in charge of all hiring. hut after that
date he hired only supervisory personnel.
' The dissent's assertion that Gitzler was lying when he told Nasti on
December 29 that there were no longer any jobs available is not supported by
the employees would be willing to work without union
representation or at Respondent's stations off the
parkway. The response was negative to both inquiries.
The meeting ended with Nasti threatening to picket
Respondent (which the Union in fact did). Thereafter,
on December 30, Magnani stated to Nasti "that when
the Union got into the matter, it had been blown out
of proportion and had got way over his head."
For the reason set forth by the Administrative Law
Judge, as amplified below, we find that Respondent's
actions in regard to the Exxon employees did not
violate Section 8(a)(1) and (3) of the Act. Thus, the
facts establish that Respondent had decided, before
being approached by Nasti and the Union in early
December, on the wages and terms and conditions it
would offer employees, and that it would not simply
hire the complement of Exxon or Mobil employees
then working at the parkway stations, but would hire
employees individually as they applied regardless of
source. Consequently, Respondent was not a successor
employer to either Exxon or Mobil. In these circum-
stances, Respondent was under no obligation to hire
the Exxon or Mobil employees either individually or
as a group, as long as it did not refuse to do so for
discriminatory reasons."'
Like the Administrative Law Judge, we find that
the evidence is insufficient to establish an unlawful
motive in Respondent's failure to hire any of the
Exxon employees. It is apparent that, at all times,
Respondent's major concern was to man its service
stations with employees who were willing to work at
the minimum wage. As a result of Nasti's call to
Magnani on December 7, Respondent knew that the
wages being paid the service attendants at the Exxon
service stations were considerably higher" than the
minimum wage which was the standard for Respon-
dent's own service attendants. It was also immediately
clear, even to Nasti, that Respondent was reluctant to
hire at an increased rate. Thus, consistent with
Respondent's awareness that the Exxon employees
were then working for a higher rate than it was willing
to pay, Respondent had reason to assume that those
employees in all likelihood would not want to suffer a
reduction in that rate. Indeed, such an assumption was
ultimately borne out by the wage demands of some of
the Exxon employees when they finally did submit
applications for jobs with Respondent on December
29. In these circumstances, therefore, we are unwilling
the record. Specifically. communicated to Magnani on December 27. Thus.
the fact that a few days later Respondent learned that it was short four people
and took steps to hire them does not establish that Gitzler was being
untruthful.
'" See, generally, N.L.R.B v. Burns Iinternlaional Sccrity Srvices. Inc.. 406
U.S 272 (1972).
'Exxon service attendants were paid approximately $4 per hour plus fringe
benefits.
1493
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to ascribe a discriminatory motive to Respondent's
taking no action to offer the Exxon employees
employment after Nasti's call on December 7. '2
In any event, with regard to Respondent's policy of
individual hiring, Magnani made it clear to Mahoney
during their December 8 telephone conversation that
Respondent would consider the Exxon employees for
employment if they submitted applications. Gitzler
expressed the same thought at the Exxon and Mobil
service stations he visited during this period. However,
it must be emphasized that until the December 29
meeting none of the Exxon employees submitted
applications. Certainly, there was no obligation on the
part of Respondent to initiate the employment rela-
tionship." Respondent was not a successor to Exxon
and hence was within its rights to expect that persons
seeking employment with it would first submit appli-
cations. 14
As for Gitzler's asking Nasti, at the December 29
meeting, whether he and the others would be willing
to be employed if Respondent did not go with the
Union: in the context of the confrontation between
Gitzler and Nasti, the former's question was in the
nature of an inquiry as to whether the latter's
application was conditional on such representation."
Thus, once Nasti declared his union affiliation Gitzler
felt it necessary to determine whether Nasti and the
other Exxon employees of accompanying him would
accept employment only if the Union remained their
representative. In view of the large number of employ-
ees already hired, Respondent was not in a position,
even if it so wished, lawfully to accord recognition to
the Union in the absence of a demonstration of
majority status. Thus, Respondent could not hire
anyone on the condition that it recognize the Union.
Magnani's statement to Nasti on December 30 "that
when the Union got into the matter, it had been blown
out of proportion and had got way over his head" does
not show unlawful motivation; rather, as found by the
Administrative Law Judge, it simply indicated diffi-
culty with the "package deal" hiring approach used by
the Union when it sought Respondent's agreement to
hire the Exxon employees.
In summary, we find that Respondent's actions did
not result from union animus, but were the outcome of
" Although Member Jenkins makes much of the fact that Respondent was
not informed until December 29 that the Exxon employees would not work at
the reduced rate set by Respondent, the fact is that the evidence indicates that
they were unwilling to do so, and Respondent could assume under the
circumstances (reenforced to some extent by Nasti's failure to indicate a
willingness during the December 7 conversation to work at a reduced rate and
the Union's seeking agreement on their hire at the December meeting) that
these employees would not be willing to work at a lower wage rate. In fact.
some of the Exxon employees who submitted applications on December 29
indicated that they desired more than the minimum wage as a starting salary,
and Nasti, as spokesman for the group on that date, made it clear that they
wanted jobs at their Exxon rates.
"Member Jenkins contends that there was no obligation on the part of the
Exxon employees to apply formally to Respondent for employment. He
its personnel policy of individual hiring and of hiring
service attendants at the minimum wage. We find,
therefore, that General Counsel has failed to prove by
a preponderance of the evidence that Respondent's
failure to consider the Exxon employees in filling
openings at its newly acquired service stations was
unlawful. Accordingly, we shall adopt the Adminis-
trative Law Judge's recommended Order dismissing
the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is,
dismissed in its entirety.
MEMBER JENKINS, dissenting:
Contrary to my colleagues in the majority, I would
not adopt the Administrative Law Judge's dismissal of
the complaint. In my view, the record compels a
finding that Respondent refused, in violation of
Section 8(a) (3) of the Act, to hire certain former
employees of one of its predecessors, Exxon, because
the employees were members of the Union. In this
connection, the record also shows that Respondent
impliedly offered, in violation of Section 8(a)(1), to
hire some of these employees if they were willing to be
employed without union representation.
As set forth in the Administrative Law Judge's
Decision, this proceeeding arose out of Respondent's
actions when, in December 1977, Respondent ob-
tained a contract to operate gas stations along certain
New York state parkways starting January 1, 1978.
Previously, these stations were run by two companies:
Exxon and Mobil. The employees of Exxon were
represented by the Union; those of Mobile were
unrepresented.
As indicated previously, I am not persuaded, as are
my colleagues, by the Administrative Law Judge's
conclusion that Respondent's refusal to consider for
hire any of the former Exxon employees was lawfully
motivated. When Respondent learned it had obtained
asserts that "[placing such an obligation on employees would be in sharp
contradiction to the Board's policy in similar situations" and cites as support
Abilities and Goodwill. Inc.. 241 NLRB 27 (1979). Since Abilities and Goodwill
involved discharged economic strikers. it is hardly applicable to the current
fact situation. In fact, there is no support for the proposition asserted by our
dissenting colleague in this regard.
" Member Jenkins apparently reads an antiunion motive in Respondent's
unwillingness to hire the Exxon employees as a group: however, the record
indicates that Respondent was equally unwilling to hire the Mobil employee
complement although they were unrepresented.
' Contrary to the dissent we find that Gitzler's inquiry of the Exxon
employees who were applying for employment was natural in view of the
possibility that Respondent might employ them if a vacancy arose. This does
not conflict with his statement that there were no jobs available at that time.
1494
VANTAGE PETROLEUM CORP.
the parkway contracts, the record shows it decided to
avoid becoming a successor employer with regard to
the Exxon stations by exercising its option to set initial
terms and conditions of employment. See, generally,
Spruce Up Corporation, 209 NLRB 194 (1974). Un-
doubtedly, it also had no absolute obligation to hire
the former Exxon employees. See N.L.R.B. v. Burns
International Security Services, Inc., 406 U.S. 272,
287-288 (1972). However, it is axiomatic that Respon-
dent could not refuse to consider the former Exxon
employees because of antiunion considerations. E.g.,
McCain Foods, Inc., 236 NLRB 447 (1978); Tri-
Maintenance & Contractors, Inc., 235 NLRB 895
(1978).
The Administrative Law Judge's conclusion that
Respondent did not refuse to consider any Exxon
employees for employment based on union animus
appears to have been grounded principally on his
finding that from the very beginning the Exxon
employees sought employment only at their old wage
rates.' Thus, the Administrative Law Judge cited the
testimony of union steward Nasti to the effect that he
would not have accepted employment with Respon-
dent had it been offered at a wage rate less than what
he had earned at Exxon. Similarly, the Administrative
Law Judge observed that Business Agent Mahoney
testified that the Exxon employees had indicated to
him that they desired to be employed at their old wage
rates. However, unless these desires were communicat-
ed to Respondent before it decided not to hire the
Exxon employees, Respondent obviously cannot be
heard to assert that those desires played a part in that
decision.
The record shows that the first indication to
Respondent that any of the employees were unwilling
to accept employment at Respondent's wage rates
occurred during a December 29 confrontation between
a group of Exxon employees led by Union Steward
Nasti and Respondent Vice President Gitzler. Con-
trary to the Administrative Law Judge's contention,
Nasti did not seek to negotiate wages with Respondent
when he spoke to Magnani, the person initially in
charge of hiring employees for the parkway stations,
on December 7. Rather, Nasti's credited testimony
indicates that he told Magnani he wanted to discuss
employment possibilities in general, and would defer
any discussion regarding wages until later. Nor did
Union Business Agent Mahoney discuss wages with
Magnani during their December 8 telephone conversa-
tion in which Magnani agreed to meet with union
officials on December 16 or 17 regarding the possible
'" Respondent set its wage rates at considerably less than those paid by
Exxon.
" At the time, Schmittmeyer was a manager at another gas station. There,
he had maintained a file of employment applications which. along with other
personal contacts, he used to rill the jobs at the parkway stations. Additional-
employment of Exxon employees. And, at the Decem-
ber 16 or 17 meeting, Assistant Business Agent
McGann and Nasti again sought only to get Magnani
to agree to hire the Exxon employees; no discussion of
wage rates took place. It was not until December 29
that Nasti, angered at what he believed was deliberate
obfuscation by Respondent regarding its intentions
concerning the Exxon employees, stated to Vice
President Gitzler that the Exxon employees desired to
be employed by Respondent at their old wage rates.
But Respondent clearly had decided not to hire the
Exxon employees before the December 29 confronta-
tion, at a time when it would have been entirely
speculative from Respondent's perspective whether
the Exxon employees would accept or reject pay cuts.
Thus, Magnani appears deliberately to have misled
union officials as to his intentions regarding the Exxon
employees. Several days after indicating to steward
Nasti and business agent Mahoney in early December
that he was willing to meet with them to discuss the
possible employment of Exxon employees, Magnani
delegated responsibility for hiring employees for the
parkway stations to William Schmittmeyer. He did
not, however, mention to Schmittmeyer the previous
inquiries made on behalf of Exxon employees.
Schmittmeyer proceeded to hire employees utilizing
his own sources." And, on December 19, Magnani
specifically told Schmittmeyer that Respondent was
not going to hire Mobil or Exxon employees because
Respondent was hiring its own employees. Additional-
ly, at the December 16 or 17 meeting, mentioned
earlier, Magnani told Nasti and McGann that he
refused to make any provision for the hiring of any of
the Exxon employees. Thus, it is plain that Respon-
dent decided not to hire Exxon employees long before
it learned that some of them might be unwilling to
work at the decreased wages.
Further, I cannot agree with the Administrative
Law Judge's vague suggestion that the Exxon employ-
ees somehow were required to "test" Respondent's
motivation. Despite the repeated unsuccessful at-
tempts by their Union to discuss employment oppor-
tunities for the Exxon employees with Respondent, it
seems the Administrative Law Judge would have the
employees submit individual and unconditional appli-
cations for employment for wages less than they were
earning at Exxon and in response to advertisements
there is no evidence they were aware of. Placing such
an obligation on employees would be in sharp contra-
diction to the Board's policy in similar situations. See
Abilities and Goodwill, Inc., 241 NLRB 27 (1979).
ly. he placed a help-wanted sign in the window of his station which evidently
generated more applications. Finally, on or about December 13, Respondent
placed a help-wanted advertisement in a local newspaper: it is uncertain
whether this advertisement produced any applications.
1495
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the majority admits that Respondent indepen-
dently decided prior to December 7 that it would not
hire the complement of Exxon employees then work-
ing, they fail to note that this decision was not
conveyed to Steward Nasti or any of the Exxon
employees, and that Magnani's communications with
Nasti directly served to mislead him and the other
Exxon employees into not filing individual employ-
ment applications.
Additional evidence of Respondent's unlawful moti-
vation occurred at the December 29 meeting between
Gitzler, Nasti, and several other Exxon employees.
Nasti and the employees attempted to submit applica-
tions for employment for themselves and for still other
Exxon employees. Gitzler told them that there were
no jobs available, a patently false assertion in light of
the fact that that very day Respondent hired four
former Mobil (and nonunion) employees. Gitzler's
proffering of a false reason in this context suggests an
unlawful one. See, e.g., Keller Manufacturing Compa-
ny, Inc., 237 NLRB 712 (1978); Tri-Maintenance &
Contractors, Inc., supra. Additionally, Gitzler asked
Nasti and the others if they "were willing to [be
employed] if we didn't go in with the Union," a
statement which I find clearly to have violated Section
8(a)(1) of the Act. Cf. McCain Foods, Inc., supra. The
Administrative Law Judge's explanation of this com-
ment as indicative of a desire by Respondent not to
pay these employees at their previous wage rates is, to
say the least, strained. Likewise, the majority's expla-
nation of this comment, that Gitzler felt it was
necessary to determine whether the Exxon employees
conditioned their hire on recognition of the Union, is
completely at odds with the majority's claim that at
the time Gitzler believed he had a full work comple-
ment and therefore did not need to hire anyone else. If
there were no jobs available, there was no reason to
inquire into the matter.''
Finally, any lingering doubts regarding Respon-
dent's unlawful motivation surely could not have
survived Magnani's apologetic December 30 statement
to Nasti that "when the Union got into the matter, it
had been blown out of proportion and had got way
over his head." Cf. U.S. Soil Conditioning Company,
235 NLRB 762 (1978). The Administrative Law
Judge's tortuous rationalization of this comment by
characterizing it as a reference to the Union's previous
attempt to obtain a "package deal" for Exxon employ-
ees, an attempt which does not appear in the record, is
simply unbelievable.
In sum, the record requires a finding that Respon-
dent refused to consider the Exxon employees for
employment because they were members of the Union
and not, as our colleagues suppose, on the basis of
neutral considerations. Respondent's disingenuous
dealings with union officials throughout the month of
December, combined with the clearly false explana-
tion for not hiring the Exxon employees provided by
Gitzler on December 29, the disparate hiring of
nonunion Mobil employees on December 29, Gitzler's
December 29 query as to whether the employees
would be willing to work for Respondent without
union representation, and Magnani's December 30
statement that the Union blew it "out of proportion"
convincingly demonstrate Respondent's unlawful in-
tent. Thus, I am perplexed by my colleagues' adoption
of the Administrative Law Judge's dismissal of the
complaint, and would find the violations.
If there were a lawful purpose to such interrogation, then it arises only
once the majority cotnclude that positions were available and that Gitzler's
claims to the contrary were not truthful.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor Rela-
tions Act, as amended, was heard pursuant to due notice on
June 12 and 13, 1978, in Brooklyn, New York.
The charge was filed on January 3, 1978. The complaint in
this matter was issued on January 31, 1978. The issues
concern () whether Respondent violated Section 8(a)(3) and
(I) of the Act by the refusing to hire certain employees, (2)
whether Respondent violated Section 8(a)(1) of the Act by
acts of (a) interrogation concerning membership in, activities
on behalf of, or sympathy for the Union, (b) promising to
hire certain employees if they refrained from or abandoned
support of, activity for or membership in the Union, and (3)
whether ystate involvement in the leasing of the stations
reveals that the NLRB should not assert jurisdiction over
the employer-employee relationship at the gasoline stations
involved.
All parties were affored full opportunity to participate in
the proceeding. A brief was filed by Respondent. Oral
argument was made, and a letter relating to the jurisdiction-
al question was filed by the General Counsel. All arguments
and briefs have been considered.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER '
Vantage Petroleum Company, Respondent, is, and has
been at all times material herein, a corporation duly
organized under, and existing by virtue of, the laws of the
State of New York.
At all times material herein Respondent has maintained
its principal office and place of business at 400 Jericho
Turnpike in the Town of Jericho, County of Nassau, and
' The facts are based on the undenied allegations ofcommerce as set forth in
the complaint. Such undenied allegations are deemed admitted in accordance
with the Board's Rules and Regulations Sec. 102.20 and are herewith found
accordingly.
1496
VANTAGE PETROLEUM CORP.
State of New York, herein called the main office, and
various other places of business in the State of New York
where it is, and has been at all times material herein,
engaged in the wholesale and retail sale and distribution of
gasoline and related products.
During a representative -year period Respondent derived
gross revenues from its operations in excess of $500,000.
During the same representative period Respondent, in the
course and conduct of its business, purchased and caused to
be transported and delivered to its places of business,
gasoline and other goods and materials valued in excess of
$50,000 were delivered to its places of business in interstate
commerce directly from states of the United States other
than the State in which it is located.
Based on the foregoing, it is concluded and found that
Respondent is, and has been at all times material herein, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.'
II. THE JURISDICTIONAI. ISSUE
The Facts
On December 23, 1977, Respondent, Vantage Petroleum
Corporation, entered into two contracts with the State of
New York to operate certain gasoline service stations on
certain parkways of the State of New York. '
One of the two contracts was entered into with the State
of New York, acting by and through the Office of Parks and
Recreation. This contract involved agreement and terms for
the operation of gasoline service stations described as to
station number and location as follows: Station 101 -
Northern State Parkway, Carle Place; Station 102 -
Northern State Parkway, Commack; and Station 104 -
Southern State Parkway, Amityville. The terms of the
contract provided for Respondent's operation of such
stations from January 1, 1978, through December 31, 1982.
Prior to the events in this case and January 1. 1978, service
stations 102 and 104 had been operated by Exxon under a
similar contract arrangement.' Station 101, prior to the
events in this case had been operated by Mobil under a
similar contract arrangement.
The other contract was entered into with the Jones Beach
State Parkway Authority.' This contract involved agreement
and terms for the operation of gasoline service stations
described as follows: Station 123 - Southern State Parkway,
Hempstead; I11 - Wantagh State Parkway, Wantagh;
Station 112 - Meadowbrook State Parkway, Wantagh; and
Station 121 - Southern State Parkway, Wantagh. The
terms of the contract provided for Respondent's operation of
: Although the Employer is an employer engaged in commerce within the
meaning of Sec. 2(2)., (6), and (7) of the Act. the question remains whether
jurisdiction should be asserted because of Respondent's contracts with State
authorities concerning license to operate the service stations involved in this
proceeding.
The land on which Respondent's operations would occur and the facilities
were owned by the State of New York.
' The agreement refers to itself as a concession agreement and ets forth in
effect that it granted Respondent a license to operate said service stations.
' An administrative agency created under New York statue.
' Station Ill may have, prior to the events in this case, been operated at
certain time periods by Mobil under similar contract arrangements. If not. it
was a station scheduled to be opened and operated at certain time periods ill
the future.
such stations from January 1, 1978, through December 31.
1982. Prior to the events in this case and January 1, 1978,
service stations 112 and 121 had been operated by Mobil
under a similar contract arrangement." Station 123, prior to
the events in this case, had been operated by Exxon under a
similar contract arrangement.
As has been indicated, Respondent's two contracts with
State authorities referred to herein were similar to the
contractual arrangements that Exxon and Mobil had with
State authorities prior to the events in this case and January
1, 1978. All such contracts had clauses requiring approval of
much of the operations of the gas stations. Of significance to
the issues in this case are contractual clauses to the following
effect:'
13. Unless personally operated by the Licensee only,
the Licensee agrees to employ a manager who is
satisfactory to Parks to operate this license. If at any
time Parks notifies the Licensee that the manager or
other employee is unsatisfactory. the Licensee shall
within forty-eight (48) hours replace him with a
satisfactory one. The Licensee further agrees to have at
all times sufficient attendants on duty to render
adequate service and assistance to the public, Parks
being the sole judge of the adequacy of such service.
14. The Licensee agrees, at the request of Parks or
their authorized representative, and without the making
of any specific charges, to forthwith terminate the
employment within any parkway service station of any
employee whom Parks or such representative considers
detrimental to the best interest of the parkway or the
public using same.
During the years preceding Respondent's commencement
of operations on January , 1978, of the above referred to
service stations, the employees at the stations operated by
Exxon on the parkway were represented by Local 808.
International Brotherhood of Teamsters, Chauffeurs. Ware-
housemen and Helpers of America. In effect in December
1978 was a collective-bargaining agreement between Exxon
and the Union which had been entered into in June 1976 and
for a term until December 31, 1978.' The contract appears to
be in similar effect to many collective-bargaining agree-
ments. It may have been tailored somewhat to the realities of
the situation. Thus, there were "no strike" and grievance
and arbitration provisions. Further, the clauses relating to
rights of the Employer with respect to discharge may have
been similarly tailored to meet the needs of the situation.
There is no evidence of any significant problem presented
to the Employer, the Union, or employees as regards the
question of collective bargaining or employee Section 7
I In my opinion. other conitractual clauses requiring state appros.al a tio
much of the operation ofr the tationtis would not re eal state coitnl rl to uch a
degree as to warrant the ntoniasserti(n of jurisdiction in thi.s case I ould note.
however. that an appendix to the contract sets foirth great reference to New
York labor laws and prohibitions o discrimitnation bh reason f race. creed.
color, national origin of citizens of New York ad provides that the Attorney
General should hb advised of certain poxtential itigation concerling race,
creed, or color. so as to hbe able t protect the State's iterests.
' Said contract revealed that the Uion had been certified b) the Regional
Director of the NLRB as exclusive representative of the Exvxon bargaining
unit at the state leased stations involved herein
1497
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights as a result of the Company's agreement with State
authority wherein the State could require the discharge of
employees.'
When Respondent commenced operations on January 1,
1978, of the service stations formerly operated by Exxon, it
did not employ the former employees of Exxon who were
represented by the Union. The proceeding in this case alleges
that Respondent has violated Section 8(a)(3) and (1) of the
Act by its refusal to employ such employees.
Shortly after January 1, 1978, the Union commenced
picketing at some or all of Respondent's service stations and
continued to do so for approximately 3 weeks. Such
picketing was engaged in after the Union had properly
obtained a required permit from the State of New York.
On January 10, 1978, Respondent filed a representation
petition in Case 29-RM-549. On January 27, 1978, the
Regional Director approved a "Stipulation for Consent
Election" in Case 29-RM-549. Such stipulation provided
for an election on February 6, 1978, in a stipulated
appropriate unit. On February 28, 1978, a Certification of
Results of Election was issued in Case 29-RM-549.
Gitzler, vice president of Vantage, credibly testified to the
effect that officials from the State had discussed the State's
right to have employees discharged as is revealed by the
following excerpts from his testimony.
Q. And has the State of New York, since December
29th, 1977, required Vantage Petroleum Corporation to
discharge any employee of any of the six parkway
stations?
A. Have they required, no.
But Mr. Sheridan and Mr. Dolsie - when I had a
meeting with him - asked me or told me that on past
occasion that they had asked either Mobil or Exxon, I
don't remember which, to discharge an employee, and
that they had complied.
They also asked me if I would comply to the same
ruling.
I then said would it be okay if I removed them from a
parkway station and put them into another station as
long as they were off the parkways.
And they agreed that they would accept that.
But they wanted me to say-they wanted confirma-
tion from me that if they had any problem with any
employee, that I would take them off the parkways.
And I agreed to it verbally.
I didn't agree to fire them but I did agree I would
take them off the parkway stations if they so desired.
Contentions
Respondent contends that the National Labor Relations
Board lacks jurisdictional authority in this case because the
"State" (of New York) has an unbridled right to determine
who may not be employed by Vantage at the facilities
involved.
Thus, Respondent's brief sets forth:
'There was hearsay evidence that the State had caused the termination of a
manager at one station either before the Vantage operations or during the
Vantage operations. As indicated later, there is some hearsay evidence in
The Employer in this case, Vantage Petroleum Corp.,
is a concessionaire operating State facilities under
license from State authorities. The State parkway
service stations pertinent to this case are operated under
concessions from the State's Office of Parks and
Recreation and the Jones Beach State Parkway Author-
ity. The Office of Parks and Recreation is part of the
Executive Department of the State of New York, and
has been established under New York State Executive
Law Section 703. The Jones Beach State Parkway
Authority is "a body corporate and politic" and has
been established under New York State Public Authori-
ty Law Section 152. The Authority's board is appointed
by the Governor, by and with the consent of the State
Senate. The head of the Office of Parks and Recreation
is similarly appointed by the Governor, with the advice
and consent of the Senate.
The State parkway service stations are on State lands
and are State property; under the concessions, the
facilities are operated on behalf of the State for the
benefit of the public. The State, under the terms of the
concessions, maintains an unbridled right to determine
who may not be employed by Vantage at these facilities,
and the Employer does not have sufficient control over
the employment conditions of its employees at these
State stations to warrant a conclusion that meaningful
collective bargaining could take place in this context
without approval or participation of the State. (Resp.
Exh. I-A,B, pars. 13-14) The services provided under
these concessions are, therefore, State services, Vantage
being only a State concessionaire.
In analagous situations, the Board has declined to
assert jurisdiction over this kind of enterprise. (See
Roesch Lines, Inc., 224 NLRB No. 16, 1976, and cases
cited therein.) In Roesch, the Board excluded from
coverage under the Act drivers who operated public
school buses, on the ground that transportation services
for school districts was so intimately related to the
school districts' functions as to warrant the conclusion
that such services were, in effect, a municipal function.
School bus drivers, therefore, were regarded by the
Board to be something akin to public employees,
particularly as the school board in that case retained
under its contract with the Employer the right to
dictate whether any particular employee should be
discharged by the Employer.
The General Counsel contends in effect that Respondent's
operations of the gasoline service stations, pursuant to its
contracts with State authority, reveal that it exercises
effective control over the working conditions of its employ-
ees at such stations and that it is fully competent to handle
its labor relations.
Conclusions
Both the General Counsel and Respondent have cited and
referred to various cases in their briefs. I have considered all
Gitzler's testimony which may be with reference to a discharge of a manager
or of an employee.
1498
VANTAGE PETROLEUM CORP.
such cases and arguments as related to the facts in the
instant case.
This case does not present a question of whether Respon-
dent as to its normal operations is an employer within the
meaning of the Act and subject to the Board's jurisdiction
for such normal operations as an employer within the
meaning of the Act and is for such operations subject to the
Board's jurisdiction. Respondent so admits. The question
presented is whether the Board should assert jurisdiction
over Respondent as regards its operations which in effect are
performance of a service for an instrumentality of a State
which is clearly exempted from coverage by the Act by
virtue of the statutory definition of "employer.""'
In such cases as this, when the Board has found that the
exempt entity did not exercise such control as to deny
sufficient autonomy to the private employer over working
conditions of the employees and therefore such employer
was able to bargain efficaciously with a union, it may be
broadly stated that the Board has applied an additional test
to determine whether the service provided by the private
employer is intimately connected with the purpose or
functions of the exempt political subdivision.
Considering the facts of the instant case and the facts,
conclusions of law, and determinations of the Board in the
cases cited by the parties and in cases revealed by indepen-
dent research, I am persuaded that the current Board policy
of whether or not jurisdiction should be asserted is revealed
by the Board's determination in Buffalo General Hospital.
218 NLRB 1090(1975).
I would note that there are certain broad principles in the
area of law concerning whether jurisdiction should or should
not be asserted because of State involvement in the employ-
ing enterprise involved. Thus, where the employing enter-
prise is a creature of the State, the Board does not assert
jurisdiction because of the exclusion of the State as an
employer within the meaning of the Act. This may be said
correctly to constitute exclusion from jurisdictional assertion
under a statutory test. In other situations involving a private
employer not a creature of the State, exclusion from
jurisdictional assertion has been said to be based upon a
joint-employer relationship with the State or because the
State exercised a high degree of control over the employing
enterprise. In some of such cases the theory of declination or
assertion of jurisdiction has been expressed as being deter-
mined upon whether the exercise of control prevented or did
not prevent the employer from having sufficient autonomy
to bargain efficaciously with a union. In some of such cases
it was also expressed that a determinative factor was
whether or not regulation by the Board could be frustrated
by state action.
Considering the question of "control," it would not
appear necessary that "joint-employer status" (between the
employer and State) would have to be established. Rather,
"' Sec. 2(2) of the Act provides:
The term "employer" includes any person acting as an agent of an
employer, directly or indirectly, but shall not include the United States or
any wholly owned Government corporation, or any Federal Reserve
Bank, or any State or political subdivision thereof, or any corporation or
association operating a hospital, if no part of the net earnings inures to
the benefit of any private shareholder or individual, or any person subject
to the Railway Labor Act, as amended from time to time, or any labor
organization (other than when acting as an employer), or anyone acting
in the capacity of officer or agent of such labor organization.
whether or not a joint-employer status, the question of
whether the control exercised by the State prevented the
employer from having sufficient autonomy to bargain
efficaciously or to control its labor relations would appear to
be the significant question. The question of whether State
control could frustrate Board regulation of the private
employer's relationship with its employees and union would
appear to depend substantially upon the same degree of State
control as would be determinative of whether State control
prevented an employer from having sufficient autonomy to
control its labor relations so as to bargain efficaciously with
a union.
The use of the "control" test in determining whether
jurisdiction should be asserted over a private employer has
been broadly described as a "statutory" test. Unlike the
question of whether an enterprise is a creature of a State, the
question of assertion of jurisdiction over the private employ-
er is within the discretion of the Board, and the description
that a "statutory" test is involved must be construed as a
saying that the Board in its discretion does not assert
jurisdiction over the enterprise because of the forseeable
problem of possible conflict with State authority because of
such control by the State over the employer. It may be said
to be an accommodation similar to the problem of conflict
between regulation by the Board over picketing or strike line
violence and the State's enforcement of laws within the
purview of its police power.
As I have indicated, I am persuaded that the Board's
determination and expressed theory in Buffalo General
Hospital, 218 NLRB 1090 (1975), governs the determination
in this case. Considering the facts in this case and the
Buffalo General Hospital case, I find it proper to note certain
cases cited in Buffalo General Hospital as highlighting the
issues and determinations in this case."
Thus, Ohio Inns, Inc.. 205 NLRB 528 (1973), and JA-CE
Company, Inc., 205 NLRB 728 (1973), are cited with
approval in the Buffalo General Hospital decision. It is clear
that the principles of law applicable to the question of
assertion of jurisdiction are the same in all three cases. The
application of the principles of law to the facts of the Ohio
Inns, Inc., and JA-CE Company cases, however, appears to
be different. Thus, in Ohio Inns Inc.. the majority of the
Board appears to be placing emphasis upon the potential
exercise of control by the State in its findings and conclu-
sions. In the JA-CE case, the Board appears to find that the
question of actual exercise is of more importance in its
determinations as contrasted to nonexercise of potential
control. The Board in the Buffalo General Hospital case in
its findings and application of law relating to a situation of
mere potential control appears more consistent with its
decision in the JA-CE case than with the Ohio, Inns, Inc.
case. Accordingly, I am persuaded that the Buffalo General
Hospital case reflects the current status of case law and that
"Even where the Board determines that state control does not prevent an
employer from handling his labor relations in such a manner as to be able to
bargain efficaciously with a union, the Board considers whether the functions
performed are intimately related with traditional State functions and if so.
declines to assert jurisdiction. Considering the facts and case law on the
functioning aspect of the Employer', servics herein, I do not find that the
functions of the Employer related to a gasoline service station are of such a
nature as to warrant declination ofjurisdiction by the Board.
14qq
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the extent that Ohio Inns, Inc. is inconsistent with the
Buffalo General Hospital case or the JA-CE case, such case
has been eroded insofar as precedential value.
Considering the above cases, I am persuaded that the
current status of case law reveals that the Board is more
concerned with the actual exercise of control and not as
greatly concerned with the "potential" exercise of control in
the determination of whether jurisdiction should be asserted
over an employer who is performing services for a State. In
the instant case, the actual exercise of control by the State is
not to such a degree as to impair the Employer's control
over labor relations so as to render it incompetent to bargain
efficaciously with a union. Nor do I find that the Employer's
performance of services for the State constitutes perfor-
mance of services intimately related to traditional state
functions warranting the nonassertion of jurisdiction. Ac-
cordingly, it is recommended that the Board assert jurisdic-
tion over Respondent's operations of the State parkway
gasoline stations involved in this proceeding.'
Ill. THE I.ABOR ORGANIZATION INVOLVED
The pleadings put in issue the question of whether Local
808, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America is a labor organiza-
tion within the meaning of the Act. At the trial, Respondent
indicated that its question concerned whether the union
representation of supervisors eliminated it as a labor organi-
zation within the meaning of the Act. Excepting for a
reservation as to this particular question, the parties stipulat-
ed that the Union was a labor organization within the
meaning of the Act. The mere fact that a union may
represent supervisors in some of its collective-bargaining
relationships does not negate its status as a labor organiza-
tion representing nonsupervisory employees otherwise. Ma-
honey credibly testified to facts which support a finding that
Local 808, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America is a labor
organization within the meaning of the Act. Based upon
such testimony, I conclude and find that Local 808,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America is a labor organization
within the meaning of Section 2(5) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Discrimination in Hiring
Apparently sometime shortly before December 7, 1977,
the Respondent became the successful bidder to operate
after January 1, 1978, certain New York State parkway
gasoline service stations pursuant to leases (I) from the State
of New York, acting by and through the Office of Parks and
': Buffalo General Hospital. 218 NLRB 1090 (1975). 1 have also considered
the facts and rationale of Current Construction Corp.. 209 NLRB 718 (1979),
and find that the degree of control by the State in such case is much greater
than in the instant case. and that the functions involved in "tree cutting" in
parks are clearly of the type of governmental type services. Similarly, the facts
and rationale of Roesch Lines. Inc.. 224 NLRB 203 (1976), reveal a
declination of jurisdiction over certain operations because of the local and
"municipal" type functions. In my opinion the facts in both the above cases
are distinguishable from the facts in the instant case.
" It appears that Exxon had operated three State leased service stations and
Recreation, and (2) from the Jones Beach State Parkway
Authority. The leases were to cover the operation of such
service stations from January 1, 1978, to December 31, 1982.
Prior to January 1, 1978, a number of the service stations
covered by such leases had been operated by Exxon under
similar lease arrangements with State authority for several
years. The remainder of such service stations had apparently
been operated by Mobil under similar lease arrangements
with State authority."
The employees at the Exxon service stations were repre-
sented by Local 808 of the Teamsters, and there was an
existing collective- bargaining agreement covering such
relationship. During the same period of time, Mobil under
similar State lease from Jones Beach State Parkway Authori-
ty operated certain other service stations. Mobil's employees
at such stations were not represented by a labor organiza-
tion, and apparently the rates of pay in existence at the
Exxon and Mobil stations were different.
The facts are clear that prior to December 7, 1977,
Respondent had decided on its own wage structure and
employment conditions and to hire its own employee
complement rather than just take over the employee comple-
ments which were at the Exxon and Mobil stations. Thus, it
is clear as indicated later herein, that on December 7, 1977,
Magnani, an official of Vantage, had his own considerations
of wage structure and a desire to interview applicants for
hire on an individual basis. Similarly, on December 8, 1977,
Magnani indicated to business agent Mahoney, who had told
Magnani that the Union represented the former Exxon
employees and was seeking to get certain named employees
hired and wanted a meeting between the Union and
Respondent, that he could not make a decision at this time,
that, however, Respondent would take applications from
anyone and everybody who came along. Magnani agreed to
meet with the Union on December 17, 1977.
On December 7, 1977, Exxon transmitted a letter to
Mahoney, business agent of Local 808, as follows:
Mr. John Mahoney, Jr.
Business Agent
Local Union 808-1BT
6217 Northern Boulevard
Woodside, New York 11377
Dear Mr. Mahoney:
We have been informed by the Long Island Parkway
Commission that the contract to supply motor fuel and
operate the business on the Southern State Parkway was
awarded to the Vantage Oil Company and is effective
January 1, 1978.
Exxon will continue to fulfill its existing contract
obligation until December 31, 1977.
Very truly yours,
W. M. Click, Retail District Manager
that Mobil had operated three or four State leased service stations. If Mobil
had operated four State leased service stations. it appears that one of such
stations was not operated on a year around basis and was not being operated
in December 1977. If not, it appears that the new leases added a new service
station for operation. It also appears that the new leases switched the grouping
of the service stations in such a way that one of the three former Exxon service
stations was to be grouped with three former Mobil stations (or two former
Mobil stations plus a new station), and that two of the three former Exxon
stations were to be grouped with one former Mobil station.
1500
VANTAGE PETROLEUM CORP.
Apparently around this time, Local 808 and the members
represented by it had become aware that Exxon would cease
operating the parkway stations and that Vantage would
operate the said stations after December 31, 1977. In any
event, on or about December 7, 1977, Nasti, a union steward
for Local 808 at the Exxon stations, telephoned Magnani,
the Vantage official in charge of hiring employees. What
occurred is revealed by the following excerpts from Nasti's
testimony:
So I called Vantage and I spoke to Mr. Magnani and
asked him what plans he had for the stations, if he were
considering the employees of Exxon for employment
with-
I explained to him who I was, that I was working for
Exxon at the time and I was interested for employment
with Vantage since Exxon was leaving the parkway.
I gave him my qualifications and I told him what I
was doing for Exxon at the time, that I was a shift
leader and that I've been working for Exxon since 1971
and I didn't believe that I was going to be hired by
Exxon.
They didn't have any plans, immediate plans for me,
and since I was working at that place for so long and I
had a good relationship with the customers and had a
flawless record I felt he was hiring, that I would be a
good candidate for employment.
Then I also spoke for the other guys as well, because
as shop steward they were worried about their jobs.
And they had come to me in the previous weeks and
asked me if I spoke to anyone having to do with hiring
to please mention their names and mention they were
looking for jobs since they'd be out of jobs at the end of
December.
And I mentioned that there were a lot of employees
working for Exxon that were very qualified, that knew
how to work in gas stations, handle money, sell
products, in general they were able to do their job well.
And he seemed very interested.
He said-he said it sounds real good. He did speak
money.
He said, what are you making now? And I told him
what I was making at that time.
And I noted a sense of hesitation in his voice, that he
seemed a little skeptical about that kind of salary.
And I said to him, well, look, I said, I'm not talking
about salary right now.
What I want to speak to you about is just employ-
ment in general.
If you are hiring and willing to speak to us about
hiring. He said sure.
He said, in fact, I would be down one day soon and
I'll speak to each and every worker there and interview
individually for employment.
And that was the end of the conversation.
The transcript and other documents are hereby corrected to reveal the
correct spelling of Potestio's name (as revealed by his application for
employment).
I said, I'll wait to hear from you, right. And he said
yes.
He did say they were hiring for management trainee
positions and it seemed as if I would be a good
candidate for that position.
But he did not go into detail at that time.
On December 8, 1977, business agent Mahoney tele-
phoned Magnani. What occurred is revealed by the follow-
ing excertps from Mahoney's testimony:
Q. What did Mr. Magnani say to you when he first
got on the phone?
A. I explained to Mr. Magnani what the situation
was.
Mr. Magnani told me that he couldn't make a
decision then and there on the phone.
I invited Mr. Magnani to a meeting to be held in the
headquarters of Local 808.
I believe that date was on December 16th, at which
he accepted.
Q. Do you remember Mr. Magnani telling you
anything else during that phone conversation?
A. Well, I explained-I asked him if he would hire
our people.
He told me at this point he couldn't make that
decision.
However, they would take applications from anyone
and everybody who came along.
Q. When you indicated to him the request to hire our
people, did you make any individuals known to Mr.
Magnani?
A. Yes, I did.
Mahoney's testimony was to the effect that he identified
Lawrence Abbatiello, John Marcin, James Lubreto, Thomas
Csadenyi, Eugene Cresman, Phillip Tully, Thomas Nasti,
Richard Potestio," Dennis Divacio, and Santo Chippone,
and no others, as the persons he was asking Magnani about
hiring. Mahoney's credited testimony was to the effect that
during the time of the events in this case he talked to the
above employees and that they only wanted to continue to
work at their old job rates and not at different rates as in
effect at the new employer.
Magnani's normal responsibilities placed him in overall
charge of hiring employees for Respondent. As to the
employees to be hired for the parkway stations, the following
may be noted. Magnani did the selection of all managerial
employees for the parkway stations.
On December 12, 1977, Magnani assigned the responsibil-
ity of selection for hiring of nonsupervisory employees for
the parkway stations to be operated by Respondent after
December 31, 1977, to William Schmittmeyer. Magnani
gave Schmittmeyer sole discretion in the selection of
employees for hiring. Nothing was said to Schmittmeyer
about union membership or about the former Exxon or
Mobil employees. Union considerations or former employ-
ment at Exxon or Mobil did not enter into Schmittmeyer's
consideration of employees for hire. Magnani did not give
1501
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schmittmeyer any lists of former Exxon or Mobil employees.
At the time Schmittmeyer was manager of a service station
at Hicksville. Schmittmeyer utilized the following sources
for potential employees: applications for employment al-
ready on file at his station, new applications generated from
a help wanted sign placed in his station, the telephoning of
people he knew had been looking for jobs, and the
consideration of the names of some individuals supplied to
him by Magnani at a later date. Around December 13, 1977,
Respondent had placed a help wanted advertisment in an
area newspaper. Whether the names supplied by Magnani to
Schmittmeyer came as a result of such advertisement is not
revealed by the record. On or about December 19, 1977,
Schmittmeyer asked Magnani why they were not just hiring
the employees who were then working at the Exxon and
Mobil stations. Magnani's reply was to the effect that
Respondent was hiring its own complement of employees.
Later, on or around December 23, 1977, a question as to
Mobil employees arose as is discussed later herein.
In the meantime, in mid-December, Nasti again tele-
phoned Magnani. What occurred is revealed by the follow-
ing excerpts from Nasti's testimony.
Q. Please tell the court what happened on that
telephone conversation.
A. Well, I said that the men were waiting, that he
said he would be down to speak to the men about
employment.
I asked like where was he, should the guys come
down there or is he coming down or what was the
situation.
He said right now he couldn't tell me anything
further at that time and that he would get back to me.
It was a very brief conversation.
In the meantime, on December 16 or 17, 1977, Magnani
went to Local 808's business office, as had been agreed to by
Mahoney and Magnani, and met with assistant business
agent McGann and Union Steward Nasti. What occurred is
revealed by the following excerpts from McGann's and
Nasti's testimony."
McGann 's testimonial excerpts:
Q. Now, please tell the court what Mr. Magnani said
on this occasion, what you said on this occasion and
what Mr. Nasti said on this occasion?
A. Well, I asked Mr. Magnani-how do you pro-
nounce his name-
Q. What did he say his name-
A. Steve, right.
I asked him what he intended on doing with the men
that were presently employed by Exxon.
He said nothing.
I asked him what he was doing there.
He says just came to listen.
I asked him could he make any decisions, any kind.
He said no.
I asked him, I told him we were wasting our time if
he couldn't come to some kind of agreement with us
about the men.
He said he wasn't empowered to.
" I would discredit McGann's testimony otherwise inconsistent with that
which is set out.
And I just said, well, we're wasting our time here,
that's all.
Q. Did you ask him to continue the agreement with
your union?
A. I asked him if he could sit down and negotiate
with us. He said no.
Nasti's testimonial excerpts:
Mr. McGann said-had papers in front of him, and
he asked Mr. Magnani to sign these papers saying the
men would be considered for employment as members
of Local 808.
And Mr. Magnani said he wouldn't sign anything.
On or about December 22 or 23, 1977, Schmittmeyer had
a conversation with Magnani about a need for a few more
employees. Schmittmeyer's credited testimony relating to
this conversation was as is revealed from the following
excerpts:
Q. Did you have a conversation with Stephen
Magnani on either December 22nd or December 23rd,
1977, at the Jericho office of Vantage Petroleum
Corporation?
A. Yes.
I was at the office calling up people that I had
applications on, and I asked Steve if he had any names
laying around because I need - I still needed a few
more people.
And he gave me a list of Mobil employees.
And when he gave me the list of Mobil employees,
George Gitzler heard Steve talking about the Mobil
employees and he started yelling that he didn't want
any of the Mobil employees hired because then Exxon
would have a gripe against Vantage that we didn't hire
Exxon.
Schmittmeyer also testified as is revealed from the
following excerpts from his testimony which immediately
follows the excerpts as credited above.
Q. Do you remember Mr. Gitzler saying anything
else on that day?
A. No.
That's basically it.
Q. Do you know anything that would refresh your
recollection as to whether Mr. Gitzler said anything
else to you on that day about hiring Exxon people?
A. Well, he just, you know, mentioned that he didn't
really want Exxon in because if one person from Exxon
came in, then the union could easily come in.
I do not credit Schmittmeyer's testimony to the effect that
Gitzler said he did not really want Exxon in because if one
person from Exxon came in, then the Union could easily get
in. The credibility resolution is based upon the lack of
persuasiveness of such testimony considering the testimony
of the witnesses, the apparent bias of the witnesses, and the
logical consideration of all of the facts. I note, however, that
Gitzler and Magnani did not testify in direct contradiction
of Schmittmeyer as to this conversation. The question of
1502
VANTAGE PETROLEUM CORP.
Schmittmeyer's credibility was litigated and revealed that
Schmittmeyer was unhappy about his discharge by Respon-
dent. Further, Schmittmeyer's testimony to the effect that he
hired some former Mobil employees and later was told to
discharge the former Mobil employees because they were
Mobil employees is disputed, and, in fact, his own testimony
reveals itself to be unreliable.
Thus, Schmittmeyer testified to the effect that on Decem-
ber 29, he was short some employees to place at former
Mobil stations and that he hired a number of former Mobil
employees, that later he was directed to discharge such
employees by Gitzler. Schmittmeyer's testimony was very
confused as to such events and appears to change from three
to four to possibly five employees who were hired. A careful
review of such testimony reveals that a former Mobil
employee was hired at the time to work at a former Mobil
station located at Wantagh and known as the Meadowbrook
State Parkway. This employee was a man named Danny
Dever. Another former Mobil employee, Chuck Wagonere,
was hired to work at a station, apparently known as the
Wantagh State Parkway station, which was to be opened at a
later date. Two former Mobil employees, one of whom was
named Anderson, were hired to work for the Respondent at
a nonparkway station located at Hicksville. A review of
Schmittmeyer's testimony reveals that Anderson and the one
other employee were the ones that his testimony originally
indicated he was told to discharge or transfer. In fact,
neither Anderson nor the unnamed individual was hired for
the former Mobil parkway station. It very well may be that
Dever was ultimately discharged at the behest of Gitzler. As
to Dever, Schmittmeyer initially indicated that Gitzler
wanted him and the others discharged because they had been
Mobil employees. Later, Schmittmeyer clearly reveals that
Gitzler was dissatisfied with Dever's attitude. It should be
noted that Wagonere was not discharged at any time close to
January 1, 1978. Whether Wagonere has ever been dis-
charged by the Respondent has not been established.
Schmittmeyer initially testified, based upon hearsay, that
Respondent had within recent time before the trial dis-
charged Wagonere. On cross-examination, Schmittmeyer
testified that he was not sure whether Wagonere had been
discharged by the Respondent.
Considering the foregoing, I am persuaded that Schmitt-
meyer's testimony which is discredited is not reliable and
should be discredited. I find it hard to believe that if Gitzler
had made such remarks to Schmittmeyer, that Schmittmey-
er, with Magnani's approval, would have hired former Mobil
employees. Further, I find it hard to believe that if Gitzler
were opposed to the employment of former Mobil employees
because of the possibility that a former Exxon employee
would get in and thus get the Union in, that Wagonere
would have continued in employment with Respondent. I
have considered the failure of testimony by Respondent's
" The facts are based upon a composite of Potestio's credited testimony and
a logical consistency of the facts. Thus, Mahoney's credited testimony clearly
reveals that the employees wanted their jobs at their rates of pay as at Exxon
and did not want jobs at Vantage's rates of pay. The overall facts also reveal
that the Union and the employees consistently broached the question of jobs
on a package basis of having wages as they were or determined by negotiation
by the Union.
" The facts are based on a composite of the credited aspects of the
testimony of Nasti, Potestio, Gragnaniello, and Gitzler. The testimony of any
such witness inconsistent with the facts found is discredited. The testimony of
witnesses to contradict the testimony of Magnani. An
inference does not have to be drawn, and should not be
drawn under the facts of this case that failure of such
contradictory testimony makes Schmittmeyer's testimony
credible on such point. I note also that Schmittmeyer did not
appear to need refreshment as to such testimony and that
later testimony by Schmittmeyer again omitted, as had his
testimony originally, the portion of the testimony discredit-
ed. I simply do not find him to be a believable witness on
such point.
As indicated, the selection of nonsupervisory personnel
for the parkway stations was assigned by Magnani to
Schmittmeyer. Schmittmeyer made all of the selections for
nonsupervisory positions and completed his selections for
hiring by December 26 or 27, 1977. In the meantime,
Magnani made all of the selections as to managers for such
stations. Also, during the selection period, Gitzler, vice
president of Respondent, visited most if not all of the
parkway stations, spoke to some of the managers (in the
presence of some employees), and told them in effect that if
they were interested in employment, to secure applications
from Magnani or Schmittmeyer and to go to the office to
apply. One of the then Exxon employees who spoke to
Gitzler was an employee named Marcin.
On or about December 27, 1977, Union Steward Nasti
telephoned Magnani and asked if he would send him
application forms for employment. Magnani indicated that
he would not send such forms but that they could be picked
up at the office. Around December 27, 1977, Potestio, then
employed at Exxon on the parkway and a union member,
picked up job application forms from Respondent. These
forms were then filled out by certain employees who worked
at Exxon on the parkway and who were represented by the
Union. Such employees were Potestio, Nasti, Marcin,
Luberto, Csadenyi, Abbatiello, and Cresman.
Sometime prior to December 29, 1977, Nasti and the
other employees referred to above discussed the matter of
the changeover of the service stations where they worked
from Exxon to Vantage and decided to have some of the
group go with Nasti to Vantage's office and to seek to have
their jobs continued with continued union representation.'"
B. The Events of December 29, 1977"
On or about December 29, 1977, Union Stewards Nasti
and Luberto and employee and union member Potestio went
to Vantage's office with applications for employment for
Potestio, Nasti, Marcin, Luberto, Csadenyi, Abbatiello, and
the witnesses is largely fragmented and piecemeal. Considering the testimony
of all of the witnesses, it is clear that Potestio's testimony reveals that the
testimony of Gragnaniello and Gitzler is more persuasive and reliable than
Nasti's as to points in conflict. Further, the testimony of Oitzler as to what
was actually said at points appeared more objective and factual than the
testimony'of other witnesses. Thus. Nasti's testimony is viewed as conclusion-
ary and incomplete. Potestio's testimony in general was not specific. On cross-
examination, however, his testimony supported much of Gitzler's versions of
fact. Thus, the overall testimony of the witnesses reveals the facts as found
herein.
1503
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cresman. At Vantage's office, Potestio handed the applica-
tions to Vivian Gragnaniello.' Nasti told Gragnaniello that
he, Luberto, and Potestio were there to be interviewed for
employment. Gragnaniello told Nasti, Luberto, and Potestio
that there was no one there to interview the three. In a loud
voice, Nasti told Gragnaniello to go and get an officer of the
Corporation, that he was not going to leave until someone
came out. Gragnaniello then proceeded to get George
Gitzler, vice president of Vantage.
Nasti told Gitzler that he was there representing the
"guys" at the service stations and that he had these "guys"
here. Nasti told Gitzler that he was sick and tired of the
bullshit and the running around that he had been getting
from Steve Magnani. Nasti told Gitzler that he was not
leaving until he talked to an officer of the Company. Nasti
then asked Gitzler who he was. Gitzler told Nasti that he
was vice president of the Vantage Corporation. There is a
great deal of confusion in the record as to whether Gitzler
asked Nasti whether he was the union steward. Considering
all of the foregoing and the testimony of the witnesses, I am
persuaded that Gitzler, having heard Nasti state that he was
representing the "guys" and knowing of the past actions by
Nasti and the Union to seek negotiation of wages as a
package deal in context with employment, asked Nasti or the
employees in general if they were representing the Union. In
the same consideration, I am persuaded that Nasti, or Nasti
and Luberto, replied to Gitzler that Nasti and Luberto were
union stewards."
Gitzler asked Nasti and the others as to the positions they
were applying for and was told that they were applying for
the same type of jobs as they then had. Gitzler told Nasti
that Magnani did the hiring and they could fill out
applications. Nasti told Gitzler that he had the damn
applications on the table. At this point, Gitzler looked at the
employment applications given to Gragnaniello by Potestio.
It should be noted that this act is in the context that Gitzler
clearly knew that the Exxon employees had been represented
by the Union, that Nasti had in the past evinced interest in a
job with "wages" to be negotiated, that the Union with Nasti
had broached the question of employment of the "Exxon
employees" on a collective basis and on a basis of negotiating
for wages. It is thus clear that Respondent, the Union, and
Nasti and other employees thought in terms of the wages at
"Exxon" as being union scale wages. Gitzler told Nasti and
the others that there were no jobs, that the question of
selection for hire had been economic, that the Company
could not afford and was not ready to pay the salaries that
were then being paid at the parkway stations.
Nasti, Luberto, and Potestio then commenced asking
Gitzler about the wages and terms and conditions that the
employees who were being hired were receiving. Gitzler
supplied such information. Nasti indicated to Gitzler that
the employees wanted to be hired at their old rates at Exxon
and to continue to be represented by the Union. Gitzler
' The facts also reveal that Elmore. a station manager for Exxon. was
present at the time that Nasti and the others were in the Vantage office.
Whether or not Elmore was there is immaterial to the issues. However, I do
find as a fact that he was present.
"If not. it appears that Gitzler could have asked Nasti about his status as a
steward at a later time when Nasti threatened to picket the Company about
the failure to hire him and others.
I credit Gitzler's testimony to such effect. Gragnaniello's testimony on
asked Nasti and the others if they were willing to be
employed without representation by the Union. It appears
that Nasti indicated that the employees would not want to
be employed under such conditions. Gitzler also asked Nasti
and the others whether they would be interested in employ-
ment at Vantage stations off the parkway and received
negative replies. In sum, the conversation by Nasti and the
others to Gitzler was an argument of why the employees
should be entitled to the jobs at the same locations they had
worked, at the same rates of pay, and with representation by
the Union. Gitzler's reply was to the effect that his
determination of wage rates had been based upon economic
factors, that he could not afford the old wage rates, and that
there were no jobs now available even at the wage rates as
determined.
When Gitzler explained his economic considerations,
Nasti told Gitzler that he was only interested in one thing,
his family. Gitzler told Nasti that he had to understand that
if a company did not make money, he couldn't expect a
livelihood, that a company could not operate that way. Nasti
told Gitzler that he did not give a - about the Company,
that he was just interested in one thing, his job. Gitzler told
Nasti that with an attitude like this, that if he did not care
about the Company, there was nothing more to discuss, that
Magnani was in charge of the hiring. Nasti then threatened
that the Union would picket the stations if he and the others
were not hired. The conversation concluded with Gitzler's
telling Nasti that he could do what he had to do and that he,
Gitzler, would do what he had to do.
Gitzler gave the applications of Nasti and the others to
Gragnaniello and told her to give them to Magnani. Gitzler
told Gragnaniello that neither Nasti nor the others would
ever work for the Respondent as long as he was vice
president of Vantage."'
Other Events and Evidence
As has been indicated, the Respondent placed employees
at certain of the parkway stations, apparently most of which
had been formerly operated by Mobil, on December 29,
1977. On such occasion, the Respondent found itself short of
at least two employees, hired two formerly Mobil employees
for the parkway stations and hired two formerly Mobil
employees for Vantage stations off the parkway.
On December 30, 1977, when the Respondent was placing
its employees at some of the former Exxon stations, Nasti
spoke to Magnani. Nasti told Magnani that he felt that the
Exxon employees had been done wrong, that the former
employees had looked for jobs with Vantage because of his
telephone conversation with Magnani wherein Magnani had
indicated that they would be considered for employment.
Nasti told Magnani that on moral principle Magnani had
done them wrong. Magnani, in an apologetic manner, stated
this point was inconsistent with Gitzler's. The events were of an exciting type.
and I am persuaded that Gragnaniello's recall was not as good as Gitzler's. As
indicated. the witnesses' testimony was fragmented and piecemeal. As an
example. Potestio's testimony was generally vague. Gragnaniello's testimony
was also general and imprecise. As noted, however, Potestio's testimony on
cross-examination supports Gitzler's. Gitzler was the most impressive witness
ofthe witnesses who testified.
1504
VANTAGE PETROLEUM CORP.
that when the Union got into the matter, it had been blown
out of proportion and had got way over his head.
Mahoney for the Union testified to the effect that the
employees involved indicated at all times that their desire for
employment with the Respondent was limited to a desire for
employment at their Exxon wage rate. None of the objective
evidence reveals that such employees ever indicated other-
wise to the Respondent. Some of the evidence appears to
contend that the problem was that the Respondent never
offered jobs to the alleged discriminatees. As Nasti indicat-
ed, if such an offer had been made to him, he would not have
accepted employment. It is clear that all of the employees
were aware that Respondent's wage scales were less than
Exxon's. Had they wanted jobs at Respondent's wage scales,
it is clear that they had opportunity to so express to
Respondent. Rather, the Union and the employees ap-
proached the seeking of a job on a package deal basis and
therefore did not really test the question of whether
Respondent was discriminatorily motivated against the
employees because of their union activities and desires.
The facts reveal that Marcin may have approached
Gitzler for a job other than on a package deal basis. The
facts reveal that Gitzler, for a nondiscriminatory reason, did
not want to hire Marcin.
Contentions and Conclusions
The General Counsel contends and Respondent denies
that the Respondent discriminatorily refused to hire on
December 7, 16, and 27, 1977, employees Lawrence Abba-
tiello, John Marcin, James Luberto, Thomas Csadenyi,
Eugene Cresman, Phillip Tully, Thomas Nasti, Richard
Potestio, Dennis Divacio, and Santo Chippone.
Considering the record as a whole and the facts as set out
herein, the evidence is insufficient to reveal that Respondent
discriminatorily considered such individuals for employ-
ment. In effect, the actions of Nasti, the other employees
involved, and the Union were of such a nature that the
question of Respondent's motivation cannot be said to have
been tested. Thus, the facts are clear that when Nasti spoke
to Respondent's official Magnani on December 7, 1977,
Respondent had decided to select employees on an individu-
al basis and had not decided to simply hire the complement
of Exxon employees then working. It is also clear that
Respondent had, at that time, decided to set its own wage
rates. Nasti, at such time, although desirous of employment,
did not indicate a willingness to be employed at Respon-
dent's terms; Nasti wanted his wages to be determined by
negotiation. Following this, the Union by Mahoney revealed
a desire for collective negotiation for hiring of the then
Exxon employees. And on December 16 or 17, 1977, the
Union, with Nasti being present, indicated for practical
purposes a desire to have hiring on a negotiated basis.
Further, even on December 29, 1977, Nasti, Luberto, and
Potestio revealed an interest in employment limited to
employment at their old wages and with union representa-
tion.
:' I have considered the evidence that reveals that Magnani on December
30. 1977. apologized to Nasti and indicated that the matter got over his head
when the Union came insolved. In the context of all of the facts, this merely
Prior to a time that there is an exclusive collective-
bargaining representative, a company has a right to deter-
mine the wages and conditions of employment for its
employees that it has hired or is hiring. Thus, Respondent,
in this case, was free to set wages and conditions of
employment for the employees it hired for the parkway
service stations. In such a situation, Respondent does not
have to bargain with a union as to the hiring of employees or
as to the wages to be paid to such employees. Nor does the
fact that the Union and the employees involved present
employees for consideration for hiring on a package deal
basis of hiring and negotiation for wages test whether
Respondent is discriminatorily motivated in hiring by
Respondent's refusal to hire on a package deal basis. The
best test of motivation presented in this case occurred when
Nasti spoke to Magnani on December 7, 1977. At such time,
Magnani revealed an interest in the employment of Nasti
until he learned of the wages that Nasti was then receiving.
In sum, the evidence reveals that Respondent had deter-
mined its own wage scales and was hiring employees on such
basis, that none of the employees, excepting perhaps Marcin,
applied for jobs at Respondent's determined wages. Thus,
the evidence is insufficient to establish that Respondent
discriminated against such employees in hiring.:'
The General Counsel contends and Respondent denies
that Vice President Gitzler engaged in interrogation (about
union membership, position, or activities). Although the
complaint allegations referred to events on December 27,
1977, and on other unknown dates in December, 1977, the
evidence only brings into issue the question of interrogation
on December 29, 1977. Considering the facts previously set
out, the facts are clear that Gitzler did ask Nasti and
perhaps Luberto concerning their status as union stewards.
In the context that the individuals and Union had been
proceeding on a package deal basis (employment with union
negotiated wages) and that Nasti was speaking in a represen-
tative capacity for a number of individuals, such interroga-
tion did not occur in a manner constituting restraint and
coercion within the meaning of the Act. Accordingly, it will
be recommended that the allegations of violative interroga-
tion be dismissed.
The General Counsel also alleges and Respondent denies
that Vice President Gitzler on December 27, 1977, and on
various other dates presently unknown during the month of
December 1977, promised to hire the former Exxon employ-
ees if said individuals would refrain from becoming or
remaining members of the Union, and refrain from giving
any assistance or support to it, and if they would abandon
their membership in and activity on its behalf.
Considering the facts previously set forth relating to the
events of December 29, 1977, the only discernible facts
touching this issue, it is clear that the facts do not support
such allegation of violative conduct. Rather, the individuals,
who were then working for Exxon, presented themselves as
being interested in hiring on a package deal with union
representation and union wages. Respondent, had it acceded
to their demands, very well might have been placing itself in
jeopardy for provable charges of conduct violative of Section
reveals reference to the problem created by the package deal approach used by
the individuals and the Union concerning the obtaining of employment.
1505
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(2) and (1). Gitzler's inquiry as to whether the individu-
als were interested in employment without union representa-
tion merely sought to see whether they were interested in
employment at Respondent's terms and conditions or were
insisting upon a package deal. In such context, Gitzler's
remarks were not coercive and did not constitute an
unlawful promise or interference with employees' rights
within the meaning of Section 8(a)(l) of the Act. According-
ly, the allegations of unlawful conduct in such regard is
recommended to be dismissed.
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Vantage Petroleum Corporation, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and an employer over whom
the Board should assert jurisdiction as concerns the service
stations and employees involved in this case.
2. Local 808, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practices as
alleged in the complaint.
[Recommended Order for dismissal omitted from publica-
tion.]
1506