Unit Manager, Citronelle Unit

614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 500 Book Building, 1249 Washington Boulevard , Detroit, Michigan, Telephone No. 963-9330, if they have any question concerning this notice or compliance with its provisions. Unit Manager, Citronelle Unit and District 50, United Mine Workers of America. Case No. 15-CA-2358. 'November 10, 1964 DECISION AND ORDER On August 19, 1964, Trial Examiner James R. Webster issued his Decision in the above-entitled proceeding, finding that the Respond- ent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudical error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board dismissed the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before Trial Examiner James R. Webster, in Mobile, Alabama, on January 20 and March 24 and 25, 1964, on complaint of the General Counsel as amended at the hearing, and on answer of Unit Manager, Citronelle Unit, herein called Respondent. The complaint, which was issued on November 29, 1963, upon a charge filed on September 27, 1963, alleges that the Respondent violated Section 8(a)(1), (3), and (4 ) of the National Labor Relations Act, as amended. Briefs have been filed by the General Counsel and by the Respondent , and they have been carefully considered. Upon the entire record in this case and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is engaged in the management, operation , and development of Citronelle Field , an oilfield near Mobile, Alabama, on behalf of, and pursuant 149 NLRB No. 66. UNIT MANAGER, CITRONELLE UNIT 615 to a "unitization agreement" signed by, various landowners and leaseholders holding property in that field. In 1961 many of the operators and royalty owners at the field entered into an agreement "to provide for the unitized management, operation and further development of said lands and leases." All oil, gas, and similar substances, called "unitized substances," collected from the unit area is apportioned among and allocated to the several operators and royalty owners in accordance with their respective tract percentages of participation. After the original unit area was designated in 1961, the admission of additional tracts to the area was subject to certain qualifications. It was provided in the agreement that a committee of the operators, known as the Operators' Committee, shall appoint a unit manager who will manage and conduct all of the operations of the Unit as a single or unit operator subject to the direction, supervision, and control of the Operators' Committee, and subject to the terms of the unitization agreement and the operating agreement. During the past 12 months, which period is representative of all times material herein, Respondent, in the course and conduct of its operations, purchased, trans- ferred, and received at its Citronelle Field operation, supplies and materials valued in excess of $50,000 from suppliers located outside the State of Alabama. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED District 50, United Mine Workers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues The principal issues in the case are: (1) Whether or not Respondent terminated employee Charles D. Vann on September 15, 1963, because of his union activities and because he appeared as a witness on behalf of the Union in a representation hearing on August 21 and 23, 1963; (2) whether or not W. C. Weske, supervisor of Respondent, illegally interrogated an employee on or about August 15, 1963; and (3) whether or not George H. Jett, chairman of the Operators' Committee, in interviewing an employee for a position with his company, engaged in illegal interrogation and threats, and if so, whether or not his conduct could be charge- able to Respondent. B. Alleged interrogation by W. C. Weske Weske was the assistant production manager of Respondent from June 1, 1961, until on or about September 1, 1963; in this capacity he changed work assignments and work hours of employees and generally directed and supervised their work; he hired Charles Vann. I find that Weske at all times material herein was a supervisor within the meaning of Section 2(11) of the Act. One employee, William R Mason, testified that sometime in the early part of August 1963 Weske asked him "for what purpose the union was trying to be established" or "what I [Mason] intended to gain from the union?" Mason, in his testimony, displayed a rather poor memory; he could not recall details of his conversation with Weske. In his affidavit to the Board he stated that the conversation was with I. N. Hickox, the acting production manager, and the complaint originally alleged that the interrogation was by Hickox, but was amended at the hearing to substitute Weske's name. At the trial, Mason testified that he was in error in his affidavit in stating that the conversation was with Hickox. Weske testified on behalf of Respondent but was not interrogated regarding the alleged conversation with Mason. Although Mason's ability to recall was poor, and although his sworn testimony varies from the statement in his affidavit of October 9, 1963, as to whom the conversation was with, and although there is no reference to any such conversation with Hickox or Weske in his first affidavit to the Board dated October 4, 1963, I am inclined to the view and find that Weske, in August 1963, asked Mason what he intended to gain from the Union. I base this on my observation of the witness' demeanor at the hearing, on the fact that he candidly admitted the error in using Hickox's name in the affidavit rather than perpetuate the error, and, particularly, I base it on the fact that his testimony was not contradicted by Weske, who was also a witness at the hearing. ,616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, in my judgment this statement, standing alone, is too trivial and innocuous to constitute a violation of the Act, and particularly so in the absence of any atmosphere of coercive statements. When the question was put to him, Mason replied, "In reference to seniority, working conditions, rates of pay, and so on and so forth." Mason could recall no more details of the conversation. I find that the statement does not constitute a violation of Section 8(a)(1) of the Act, and I recommend that paragraph 12 of the complaint be dismissed. C. Alleged remarks by George H. Jett J. W. Hattenstein was terminated about August 15, 1963, from the employ of Respondent, where he had been the water station attendant. Prior to his employment with Respondent he had been a pumper in the employ of the Jett Drilling Company, one of the operators at the Citronelle Field. When the Unit manager was organized and the property of the various operators passed into his control and management, Hattenstein's employment with Jett Drilling Com- pany terminated and he became an employee of Respondent. On or about Sep- tember 4, 1963, Hattenstein, accompanied by a friend named Coy Smith, a member of the State Legislature, went to the offices of the Jett Drilling Company in Mobile, Alabama, to discuss with George H. Jett the possibility of his reemploy- ment with that company. George H. Jett has been at all times material herein the chairman of the Operators' Committee of the unitized operations at Citronelle Field. Smith stated that he had brought Hattenstein in to talk to Jett about a job, that he was badly in need of work, that he had a family to support and would appreciate anything that Jett might be able to do for Hattenstein . Hattenstein then told him why he had come to Jett for employment and of his current unemployment and reason for severence from Respondent. Hattenstein attributed his severence from Respondent to his becoming involved with the Union. Jett asked him, "Before we get started talking I have one question I want to ask you. I would like to know this. Why did you sign a union card?" Hattenstein replied, "Well Mr. Jett I don't think I done a thing that 32 other fellows didn't do." Then Jett stated, "That is not what I asked you. I asked you why did you sign that union card and if you can't answer it, I will answer it for you. You wanted a union, didn't you?" Jett also stated in the conversation with Hatten- stein that "anybody that signed a union card, I can't use them." Smith interceded on Hattenstein's behalf. Hattenstein stated that his main inter- est now was in getting a job. He stated that he was not too happy about having been involved (with the Union at Respondent). Finally, Jett agreed to help him and told him he would have to see Mr. Arnold, his production foreman, regarding work. Jett had his secretary place a call to Arnold to inquire about Hattenstein's employment. He was unable to locate the production foreman and told Hattenstein to contact him. Hattenstein did not secure employ- ment with Jett Drilling Company, and there is no evidence that he saw the production manager on the matter.' The General Counsel contends that Respondent is responsible for the remarks of George Jett to Hattenstein, and this contention is predicated on the theory that George Jett is an agent of Respondent, as he is the chairman of the Operators' Committee supervising the operations of Respondent and that any illegal statement he might make to an employee would interfere with , restrain, or coerce employees of Respondent. I believe this theory to be sound as to employees of, or applicants for employ- ment with, Respondent, but I reject it as a theorem for holding Respondent accountable for illegal statements Jett might make to his own employees or ' George Jett did not appear as a witness , as he was in New York City during the hear- ing. His secretary, Mrs. Mary Cahn , testified about the conversation . In my findings I have drawn from her testimony and from that of Hattenstein . I feel that each supplied details omitted by the other. Mrs. Cahn's denials as to certain crucial aspects of the conversation I do not credit . Hattenstein testified only after subpena enforcement pro- ceedings ; from this fact and from my evaluation of his demeanor and that of Mrs. Cahn, I cannot conclude that he fabricated the statements of Jett concerning the Union. UNIT MANAGER, CITRONELLE UNIT 617 applicants for employment with his company.2 There is no contention made, nor is there any evidence, that the Respondent and the Jett Drilling Company are joint employers. As pointed out in section I, Respondent operates and man- ages those properties of operators at Citronelle that have been "unitized," and the Operators' Committee supervises these operations of Respondent. Only em- ployees of Respondent work on "unitized" property. As to other properties and business ventures of the various operators, there is no connection between the Respondent and them. I find that there has been no violation of Section 8(a) (1) of the Act by Respondent by any statement of George Jett to an applicant for employment with his company.3 I recommend that paragraphs 9, 10, and 11 of the complaint be dismissed. As to paragraph 10, there is no evidence or testimony that Jett told Hattenstein or any other employee or person on or about September 4, 1963, that he had been discharged because of his union membership, desires, or activities. D. The discharge of Charles Vann Charles Vann was employed by Respondent in October 1962. At the time he had completed 3 years of college toward an engineering degree, and ap- proached Respondent for a job for the purpose of earning enough money to return to school. He was terminated on September 15, 1963, at which time he was filling the position of vacation relief pumper, although on Respondent's records he was carried as a "pumper trainee." He was assigned to the position of vacation relief pumper in the spring of 1963, taking care of wells normally tended by pumpers while they are on vacation for a period of 2 weeks each.4 In August 1963 Respondent's production foreman, L. E. Landrum, became ill and had to be relieved of his duties. On August 13, 1963, I. N. Hickox was placed in his position as acting production foreman; be continued in these duties until November 1963. In this new position he made certain operational and personnel changes. As the water station had been redesigned, he terminated the employment of the water flood or station attendant as no longer being necessary. He moved employees classified as roustabouts into positions of pumper; and then as roustabouts were needed, he employed independent contractors for this work. This did not necessitate the termination of any employees other than three schoolboys. At that time there were three schoolboys working for Respond- ent. Between August 15 and 18, 1963, Hickox talked with each of them regard- ing the termination of their services at the conclusion of the summer months. Vann told him that he planned to go back to school the first of the year. Hickox told him that his plans called for the termination of the temporary schoolboys around the first of September and that perhaps the engineering department (which department did not come under the control of Hickox) might have a place for him. Vann had first been employed by Respondent in that department. Upon his termination in September, a roustabout, Jesse Turner, was assigned the position of vacation relief pumper, and I assume that roustabouts or other employees took over the work previously performed by the other two schoolboys. 2 There is no allegation that Hattenstein was illegally terminated by Respondent ; there- fore, at the time of his conversation with Jett he was not an employee of, or applicant for employment with, Respondent 3 Oertel Brewing Company and Louisville Brewers Association, 93 NLRB 530; in this case a Mr H. Hudson was both the president of a building and construction trades council and the business representative-of Local 369, Electrical Workers Union The Board held that the council was not liable for certain statements that he made to respondent em- ployer Oertel. The Board stated, "we are of the opinion that Hudson participated in the discussions as a representative of the Electrical workers, and that his statements were not made for and cannot be attributed to the Respondent Council " 4 As there are 26 pumpers, the position of vacation relief pumper would constitute a year-round job if each of the pumpers would take his 2-week vacation in succession and assuming that each pumper has been with Respondent for 1 year. Vacation rights are earned only after an employee,had been with Respondent for 1 year, and apparently in the past the position of vacation relief pumper has not been a permanent or regular job for the reason that there have not been 26 pumpers who have been with Respondent long enough to earn a vacation. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 5, 1963, the Union filed a representation petition seeking to represent the pumpers, roustabouts, laborers, and maintenance employees of Respondent at the Citronelle Field. The hearing was conducted on August 21 and 23, 1963. Prior to the hearing, Vann's union activities had consisted of signing an authorization card, attending meetings, and discussing the Union with other employees. At the hearing the only witnesses besides the union representative, Rufus Holden, were Vann and W. R. Mason. Vann testified extensively on juris- dictional facts. On August 23, 1963, Hickox addressed the employees and ex- pressed his opposition to the Union; there is no allegation of any violation of the Act by statements made in the speech. At the conclusion of the speech, Vann had a discussion with Hickox about the Union and its advantages from the standpoint of the employees. On or about September 1, 1963, Hickox called Vann into his office and told him that his termination date would be September 15. Vann asked him why he was being terminated, and Hickox replied that it was because of his schoolboy status. Vann stated that Assistant Production Manager Weske had told him that he could work until January 1, and he stated that he was not financially able to go back to school until that time. During the days that followed Hickox asked Weske if he had made any promise concerning Vann's working until January 1, and Weske told him that he had not.5 A few days later he told Vann that September 15 would be his last day. The issue in this case is whether or not Hickox's decision to terminate Charles Vann was based on factors of economy or based on animus toward the Union and the organizational activities of the employees. Hickox had knowledge when he took over as acting production foreman on August 13 of the Union's organizational drive among the employees, but there is no contention that the other changes brought about by him, that is, the discharge of Hattenstein, the water station attendant, on August 15, the contract- ing out of roustabout work, the termination of the other two schoolboys, consti- tuted a violation of the Act. I do not mean to infer from this statement that the absence of a contention is a concession of Respondent's innocence in these acts, since there could be a variety of other reasons that there is no complaint of the conduct. But these changes were instituted very shortly after Hickox took over as acting production foreman, and he asserts they were made to improve the efficiency of Respondent's operations, and they are reasonably calcu- lated to have that effect. (The production foreman who relieved Hickox did not continue the contracting out of roustabout work ) There is no evidence that Hickox had any knowledge of Vann's union activities before August 20, 1963, which is after his decision to terminate the schoolboys. (As previously mentioned, he did have knowledge of general organizational activities on about August 13 ) The principal evidence supporting the General Counsel's case is the evidence of union animus, the timing of the termination, and the replacement of Vann; but the timing also coincides with the fortuitous assignment of Hickox as acting production foreman, and Vann's termination and replacement resulted from his operational changes. I cannot conclude from the evidence that the decision of Hickox, reached on August 15 or 16, to terminate the schoolboys, including Vann, was motivated by discriminatory considerations rather than economic considerations; nor can I conclude from the evidence that his implementation of that decision, after knowledge of Vann's participation in the representation hearing and advocacy of the Union, constitutes a violation of the Act. I therefore recommend that paragraphs 13 and 14 of the complaint be dismissed. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not violated Section 8(a)(1), (3), or (4) of the Act as alleged in the complaint. RECOMMENDED ORDER It is recommended that the complaint be dismissed. 6 Weske verified this testimony.