Whitehead Oil Co.

National Labor Relations Board - Board Decisions

Mar 30, 1984

269 N.L.R.B. 777 (N.L.R.B. 1984)

WHITEHEAD OIL CO.
Whitehead Oil Production Company and Willie B.
Thompson, Jr. and Charlie Leon Whitehead and
Alfred Tarver and Dewayne Tarver. Cases 23-
CA-9148, 23-CA-9166, 23-CA-9166-2, and
23-CA-9212
30 March 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 22 September 1983 Administrative Law
Judge David L. Evans issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,1 and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Whitehead Oil Production Company,
Buna, Texas, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs.
"(c) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way."
2. Substitute the attached notice for that of the
administrative law judge.
The Respondent 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have careful-
ly examined the record and find no basis for reversing the findings.
2 We shall modify the Order to provide for an affirmative expunction
remedy. See Sterling Sugars, 261 NLRB 472 (1982).
269 NLRB No. 139
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge any employee for con-
certedly presenting grievances.
WE WILL NOT discharge any employee for refus-
ing to cross a union's picket line.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Willie B. Thompson Jr., Charlie
Leon Whitehead, Alfred Tarver, and Dewayne
Tarver immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings,
plus interest.
WE WILL notify each of them that we have re-
moved from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way.
WHITEHEAD OIL PRODUCTION COM-
PANY
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This
matter came to hearing before me on June 9, 1983. The
complaint is based on charges filed by individuals Willie
B. Thompson Jr., Charlie Leon Whitehead, Alfred
Tarver, and Dewayne Tarver against Whitehead Oil
Production Company (the Respondent). The allegations
of the complaint, as amended, are that, in violation of
Section 8(a)(3) and (1) of the National Labor Relations
Act (the Act), the four charging individuals were dis-
charged for failing or refusing to cross picket lines estab-
lished by two labor organizations. The General Counsel
further contends that Dewayrie Tarver and Thompson
were discharged for the additional reason that they
orally presented a grievance about working conditions to
Marvin Whitehead (the Respondent's president and no
relation to Charlie Whitehead), which actions would
constitute independent violations of Section 8(a)(I) of the
Act. The Respondent admits jurisdiction but denies com-
mission of any unfair labor practices. The General Coun-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sel and the Respondent have submitted briefs which have
been carefully considered.
On the record as a whole, including my observation of
the witnesses and upon consideration of the briefs sub-
mitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Texas corporation which drills
for and refines oil. It maintains an oil refinery and other
related facilities in or near Buna, Texas. (During 1982 the
Respondent also built some apartments in Buna, the con-
struction site.) In the course and conduct of its oil oper-
ations in Buna, the Respondent annually purchases and
receives products, goods, and materials valued in excess
of $50,000 directly from suppliers located outside Texas.
Therefore the Respondent is an employer in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATIONS INVOLVED
According to the credible testimony of agents thereof,
Local 2007, United Brotherhood of Carpenters and Join-
ers of America, AFL-CIO (the Carpenters Union), and
Local 450, International Union of Operating Engineers,
AFL-CIO (the Engineers Union), are labor organiza-
tions in which employees participate and which exist for
the purpose, in whole or in part, of dealing with employ-
ers concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or conditions of work. There-
fore, although denied by the Respondent, both Unions
are labor organizations within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
As owner and president of the Respondent, Marvin
Whitehead employs several classifications of employees.
At the Buna refinery, his production superintendent is
Jimmy G. Daniels and Mike Barley is a supervisor. At
the apartment construction site the Respondent em-
ployed Bill Anderson as supervisor and one Buddy
Eaves, whom Anderson described as his "foreman."
Marvin Whitehead, Daniels, Barley, and Anderson are
supervisors within the meaning of Section 2(11) of the
Act. There is insufficent record evidence to conclude
that Eaves (who did not testify) is a "supervisor" within
the meaning of the Act. However, it is undisputed that
Eaves was responsible for relaying orders by Anderson
(and, of course, Marvin Whitehead) to the construction
site employees.
Alfred (Cowboy) Tarver is 74 years old. He is related
to the other Charging Parties in that he is the grandfa-
ther of Dewayne Tarver and Thompson, and he is the
grandfather of Charlie Whitehead's wife. For several
years the Respondent has employed Alfred Tarver to cut
grass around the refinery, paint valves at the refinery
and on oil leases in the area, and to perform other types
of odd jobs. For this Alfred Tarver was paid $175 per
week, whether he worked a few hours or the full week.
In fact, according to Marvin Whitehead, he continued to
pay Alfred Tarver the $175 even when Tarver, for a few
weeks in 1982, worked on a "union scale" job for an-
other employer in nearby Beaumont, Texas, and, conse-
quently, did no work at all for the Respondent. The
other Charging Parties were also employed as laborers at
or around the refinery, but got paid only when they
worked.
From November 8, 1982,1 to some time during the
morning of November 22, the Carpenters Union main-
tained an area standards picket line on the Respondent's
apartment construction site. Early in the morning of No-
vember 22, at the refinery, Supervisor Barley ap-
proached Thompson and Dewayne Tarver and told the
employees to go to the apartment construction site to
help put up plywood decking.2 Tarver said nothing, but
Thompson asked Barley if the Carpenters' picket was
still on the site. Barley replied that he did not know.
Thompson told Barley that if there was a picket on the
site he would not cross it. Barley told Thompson to let
his conscience be his guide. Barley then left. Thompson
and Dewayne Tarver discussed the matter between
themselves. Thompson decided to consult with Alfred
Tarver; Dewayne Tarver decided to talk to Anderson at
the construction office which is near, but not on, the
apartment construction site. According to Dewayne
Tarver, he asked Anderson what he and Thompson were
supposed to be doing on the construction site. Anderson
replied "pulling up plyboard." Further according to
Tarver he stated to Anderson:
I don't know about crossing that picket line down
there, Bill. And he said. . . I got Union men down
there on it and . . I ain't had no trouble yet ....
Either you cross it or go home.
Although he was led to state that he had told
Dewayne Tarver to help police the area in preparation
for putting the decking in place before it rained, Ander-
son did not otherwise dispute this testimony of Tarver.
Dewayne Tarver then went to the construction site.
Tarver went into the work area3 where he was told by
Eaves to start picking up paper on the ground. Tarver
refused, stating that he had been sent there by Marvin
Whitehead to pull up plywood. Tarver also told Eaves
that he and Thompson were going to talk to Marvin
Whitehead about this assignment to the construction
site.4 Tarver then went outside the work area to wait for
Thompson.
When Thompson arrived, he and Dewayne Tarver did
in fact drive to the Respondent's office where they met
and spoke with Marvin Whitehead. 5 The employees
] All dates are in 1982 unless otherwise specified.
2 This "decking" was the plywood which supports construction felt
and shingles on the apartment roof.
s Tarver was not asked if there was a picket on the job when he went
into the work area.
4 Since Dewayne Tarver had not then been to see Marvin Whitehead,
his statement to Eaves, that Whitehead had instructed him only to pull
up plywood, was necessarily false.
5 Marvin Whitehead testified that he only spoke to Thompson that
morning, and that conversation was by telephone. Whitehead's pretrial
affidavit states that Dewayne Tarver and Thompson "came by" his
Continued
778
WHITEHEAD OIL CO.
asked Whitehead if they were being assigned to the con-
struction site as discipline for something they had done
at the refinery. Whitehead replied that they were not
being disciplined and the only reason for the assignment
was that they were needed at the construction site.
Nothing was said about picketing. The employees left
the office and proceeded to the construction site.
When Dewayne Tarver and Thompson got to the con-
struction site they observed a Carpenters Union picket
line. Thompson went home rather than cross it;
Dewayne Tarver went onto the site to work.
After 15 or 20 minutes, Dewayne Tarver was ap-
proached by Anderson. Anderson testified that at the
time Tarver was just standing around; Tarver testified
that at that moment he was holding a board while an-
other employee nailed it into place. I credit Anderson.
But what was said is more important than what Tarver
was doing at that moment. According to Tarver:
Well, he called me down off the building and he
asked me why wasn't I policing the area and pick-
ing up this paper, and I told him, I said, "well,
Marvin sent us up here to pull plyboard up." He
said, "I done told you what you had to do. You
didn't have to go up there and bother Marvin."
And he said, "Why did you"? I said, "well, I
wanted to see if we was being punished for some-
thing and sent off our regular job up here to pull
plyboard."
He said, "no, you [weren't] . . . I just needed
you up here." He said, "you are fired for bothering
Marvin and also Bubba [Thompson] and . . . Bubba
is also fired for not showing up for work."
On cross-examination Tarver acknowledged that he told
Anderson, as well as Eaves, that he was not going to
pick up any paper. Further, it is to be noted that neither
Dewayne Tarver nor Thompson testified that Marvin
Whitehead told them that they were sent to the con-
struction site only to handle plyboard.
Anderson, an extremely evasive and forgetful witness,
denied firing Dewayne Tarver at all. He testified that
when he saw Tarver loafing, he told Tarver to "go
home or back on the job where he was" if he would not
do his assigned work. On direct examination Anderson
specifically denied that he had told Tarver that he was
fired for complaining to Whitehead. On cross-examina-
tion he did acknowledge that Eaves had told him that
"Dewayne was not going to do what I had told him to
do and went back to tell Marvin [Whitehead]." On cross-
examination Anderson was further asked and testified:
Q. When you were talking to Mr. Tarver, did
you ask him why he went to talk to Mr. White-
head?
office. Whitehead attempted to explain the discrepancy by stating that
"come by" is a southern vernacular expression for telephoning. The Re-
spondent's counsel has not asked me to take official notice of such ver-
nacular, and I do not. I credit Tarver and Thompson and find that the
meeting was face to face in Whitehead's office.
A. I asked him why he didn't do the job that I
gave him to do.
JUDGE EVANS: Answer the question. Did you ask
him why he went to see Mr. Whitehead?
THE WITNESS: That was my answer. Wouldn't
that be ....
JUDGE EVANS: No, sir. That calls for a yes or no.
Did you ask him why he went to see Mr. White-
head?
THE WITNESS: Yes
BY MR. MASLANKA:
Q. You did.
A. Yes.
Q. You asked him the question, Why did you go
see Marvin Whitehead?
A. Yes-instead of working, what he is supposed
to be doing.
Anderson persistently denied telling Dewayne Tarver
that he or Thompson was fired.
Dewayne Tarver left the construction site and met
Thompson at Thompson's house. There he told Thomp-
son that both of them had been fired. The two employ-
ees went to the Respondent's office in Buna that after-
noon and collected the checks that were waiting for
them. The checks had been marked "full" and "final."
Alfred Tarver testified that during the afternoon of
November 22 he spoke to Marvin Whitehead at the Re-
spondent's office:
A. Well, I said, Mr. Whitehead, I said, You may
not know it, Marvin, but Bubba Thompson has got
a union card in his pocket and he can't go through
that picket line. He said, I don't care about that
picket line. I got work up there for them to do and
they didn't go across the picket line and do it.
And he said, Willie Thompson won't never work
on none of my premises no more.
Q. Did he say anything else?
A. He says, he should have went through the
picket line if he wanted to work for me, but he
can't never work for me no more if he can't go
through a picket line. He can't draw my money.
Q. Did he give a reason for why he allegedly dis-
charged Mr. Thompson?
A. Nothing, only he wouldn't go through the
picket line and work. All he said, he said they
should have went over to the site where-they
ought to have went, but they come to talk to him in
place of going on over there ....
Alfred Tarver presumably was referring to both Thomp-
son and Dewayne Tarver when he testified that White-
head said that "they didn't go across the picket
line...." Yet Dewayne Tarver never refused to cross
the picket line. I believe that Alfred Tarver was thereby
expanding on what Marvin Whitehead actually had said.
However, even taking into account this exaggeration,
Alfred Tarver was still more credible than Marvin
Whitehead. When asked on direct examination if Alfred
Tarver questioned the discharge of his grandsons, White-
779
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
head first attempted evasion by saying "not that I know
of." When he advanced this testimonial subterfuge a
second time on direct examination, I asked him what he
meant. Whitehead then flatly denied any such discussion
with Tarver. However, his pretrial affidavit plainly states
that on November 22 Alfred Tarver did approach him
and asked about the discharge of Thompson. The credi-
ble evidence is that Marvin Whitehead told Alfred
Tarver that Thompson, but not Dewayne Tarver, was
discharged for refusing to cross a picket line, but that
both employees were discharged for approaching White-
head at his office when they had been told to be at work
at the construction site.
I further believe and find that Anderson, back at the
construction site, had told Tarver that "Bubba [Thomp-
son] was fired for not showing up for work." This was
obviously a reference to Thompson's refusal to cross the
picket line. I further believe and find, as Dewayne
Tarver testified, that Anderson stated that he (Tarver),
as well as Thompson, was fired for "bothering" Marvin
Whitehead. As well as having a less credible demeanor
than that of Tarver, Anderson's reluctance to admit men-
tioning to Dewayne the visit to Marvin Whitehead is
telling. It demonstrates that the General Counsel had
struck the nerve protecting the real reason for the dis-
charge of Tarver. Anderson attempted to dilute the sig-
nificance of his reluctant acknowledgement by adding
that he asked Tarver why he had gone to see Mr. White-
head "instead of working, what he is supposed to be
doing." But in this attempt Anderson disclosed that he
really objected to Dewayne Tarver's and Thompson's
approach to Whitehead when, in his opinion, they should
have been working.
In summary, Marvin Whitehead's attempt to deny that
the office visit occurred, coupled with Anderson's at-
tempt to evade admitting that he had mentioned the
office visit to Dewayne Tarver, has led me to conclude
that the discharges were precipitated by that office visit.
It is undisputed that the employees' complaint to White-
head concerned their assignment to the construction site,
a term and condition of employment. Therefore, while
Dewayne Tarver was decidedly insubordinate, he was
not fired for that reason.6 Therefore, I find and conclude
that Dewayne Tarver and Thompson were fired for the
presentation of a grievance to Marvin Whitehead, a plain
violation of Section 8(a)(l) of the Act. Additionally,
Thompson was fired for refusing to cross the Carpenters
Union picket line, a violation of Section 8(a)(3) and (1)
of the Act.
On December 1, the Engineers Union established a
picket line at the Buna refinery. That day Alfred
(Cowboy) Tarver and Charlie Whitehead were working,
painting valves, on one of Respondent's oil leases about 3
miles from the refinery. According to Tarver, during the
day he and Charlie Whitehead were approached by
Jimmy Daniels and:
a Indeed, Anderson insisted at the hearing that he had not fired
Dewayne Tarver at all. However, assuming, arguendo, that Tarver's in-
subordination played some part in the discharge, the Respondent has
failed to show that he would have been discharged regardless of his pro-
tected concerted activity. NLRB v. Transportation Management, 103 S.Ct.
2469 (1983).
Q. What if anything did he tell you and what if
anything did you say to him?
A. He said, Cowboy, I come to deliver a mes-
sage. .... Marvin called out to the office and told
me to come over here and tell you to take your boy
and go over there at the refinery and help Cecil
back there in the back of the refinery.
I said, Jim, I can't do that. He says, I know it,
Cowboy, . . . I had to give you the message. I said,
now, Marvin knows that I have got a union card
and I retired through the union, drawing a pension,
and I can't go through that line, even if I didn't
have.
He says, I know it and you know it too. [He]
says, Let the boy go ahead cleaning on them valves,
get in your truck and you go to the office and talk
to Marvin.
Charlie Whitehead supported Alfred Tarver's testimony;
Daniels was called by the Respondent but advanced
nothing as a denial of the testimony of Tarver, whom I
credit.
Alfred Tarver left the lease and went to the Respond-
ent's office. There he met with Marvin Whitehead.
Tarver testified that he told Whitehead that he could not
cross the Engineers' picket line because he was collect-
ing a union pension. According to Tarver:
THE WITNESS: Mr. Whitehead said, Cowboy, I
don't care about that pension. I have got work out
there. I says, I know it, Marvin. I says, I can't do
that. Well, he said, if you can't go through that
picket line, . . . will that other boy go through the
picket line, Charlie Whitehead? I said, no, sir. Go
get him.
JUDGE EVANS: Mr. Whitehead said go get him?
THE WITNESS: Mr. Marvin Whitehead says, go
get Charlie and bring him over here to the office;
meet me over there in 30 minutes and get you all's
money. If you all can't cross the picket line, I don't
need you. I said, well, okay. I will sure go get
[him].
Tarver did seek out Charlie Whitehead and repeated that
they both had been fired. The employees returned to the
offfice where they picked up their checks from a payroll
clerk.
Marvin Whitehead denied telling Alfred Tarver that
either he or Charlie Whitehead was fired. Marvin White-
head testified that, rather, Tarver approached him and
stated that he would rather quit than cross the picket
line. According to Whitehead, he responded, "that's
your prerogative."
If one would credit Marvin Whitehead, the obvious
question which arises is: Why would Tarver quit a job
which paid S175 a week where he worked 40 hours, 2
hours, or not at all? Respondent recognizes the problem
and in its brief argues that, since Charlie Whitehead's
father was the picket captain at the Engineers Union
line, Alfred quit to keep peace with his son-in-law. I
have no idea of the nature of the relationship between
Tarver and his son-in-law. But, without more than such
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WHITEHEAD OIL CO.
empty speculation, I would not assume that any man
would surrender such a sinecure in the interest of assur-
ing familial fealty. That is to say, I discredit Marvin
Whitehead.
As for Charlie Whitehead, the Respondent advances
no reason, chimerical or otherwise, why he would quit
rather than exercise his statutory right to join the Engi-
neers' strike.
I find that joining the strike is what Charlie Whitehead
and Alfred Tarver did and that this union activity got
them fired by Marvin Whitehead. Accordingly, I con-
clude that by Whitehead's discharge of Alfred Tarver
and Charlie Whitehead, the Respondent violated Section
8(a)(3) and (1) of the Act.
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 the operations
of the Respondent described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and that it take cer-
tain affirmative action designed to effectuate the policies
of the Act. The Respondent shall be required to reinstate
Willie B. Thompson Jr., Charlie Leon Whitehead, Alfred
Tarver, and Dewayne Tarver and make them whole for
any loss of earnings which they may have suffered by
virtue of the Respondent's unlawful discharges of them.
Backpay shall be calculated in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in Florida Steel Corp., 231 NLRB 651
(1977); see generally Isis Plumbing Co., 138 NLRB 716
(1962).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 2007, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO and Local 450, Interna-
tional Union of Operating Engineers, AFL-CIO, are
labor organizations within the meaning of Section 2(5) of
the Act.
3. The Respondent violated Section 8(aX1) of the Act
by discharging employees Willie B. Thompson Jr. and
Dewayne Tarver because they concertedly presented
grievances to Marvin Whitehead.
4. The Respondent violated Section 8(a)3) and (1) of
the Act by discharging Willie B. Thompson Jr., Charlie
Leon Whitehead, and Alfred Tarver because they en-
gaged in the union activity of refusing to cross picket
lines established by the above-named Unions.
On the basis of the foregoing findings of fact and con-
clusions of law and on the entire record in this proceed-
ing, I issue the following recommended7
ORDER
The Respondent, Whitehead Oil Production Company,
Buna, Texas, its officers, agents, successors, and assigns,
shall
I. Cease and desist from
(a) Discharging any employee for concertedly present-
ing grievances.
(b) Discharging any employee for refusing to cross a
picket line established by a labor organization.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Offer employees Willie B. Thompson Jr., Charlie
Leon Whitehead, Alfred Tarver, and Dewayne Tarver
immediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
jobs, without prejudice to their seniority and other rights
and privileges previously enjoyed, and make them whole
for any loss of earnings they may have suffered by
reason of their unlawful discharges, in the manner set
forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this order.
(c) Post at its place of business in Buna, Texas, copies
of the attached notice marked "Appendix."8 Copies of
said notice on forms provided by the Regional Director
for Region 23, after being signed by Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
7 If no exceptions are filed as provided in Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
' If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
781