Loffland Brothers Co.

LOFFLAND BROTHERS CO. 195 Loffland Brothers Company and Local 826, Interna- tional Union of Operating Engineers , AFL-CIO. Case 16-CA-2717 June 28, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On February 14, 1967, Trial Examiner Josephine H. Klein issued her Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor prac- tices and recommended that the complaint be dismissed with respect thereto, Thereafter, the Respondent filed exceptions to the Trial Ex- aminer's Decision and a supporting brief; and the General Counsel filed an answering brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, briefs, and the entire record in this case,2 and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, only to the extent that they are con- sistent with this Decision and Order. We do not agree with the Trial Examiner that the Respondent discharged William Thornton in viola- tion of Section, 8 (a)(3) of the Act.3 For ' about 5 years, Thornton had worked as a roughneck for companies engaged in oil drilling. On April 1, 1966, while working for one of these com- panies, he joined the Union and on April 7 was elected secretary-treasurer and business represent- ative of the Oil Patch Organizing Committee, an arm of the Union which organized employees within the Permian Basin, a geographical area in Texas where many companies are engaged in the oil drilling business. The Respondent operates about 18 rigs in this area, with its office located in Odessa, Texas. On May 23, 1966, a newspaper in Odessa published a news item headlined, "Union Leader Charged Here on Hot Check." The item read as fol- lows: A 28-year-old union organizer was released from the Ector County jail Sunday after being arrested on a hot check charge. William Lawrence Thornton, who gave a Midland address, was released on his own recognizance. His bond was set at $500 on the Ector County Court charge. Thornton is accused of cashing a bogus $23.17 check on March 7 at a Bill Sears Super Market here. Local officers took Thornton into custody Sunday after he was released from the Midland County jail after serving a three-day sentence for contempt of court there. Thornton also is free under a $5,000 bond on an arson charge filed earlier this year in con- nection with the burning of a house trialer in Ward County. Thornton told officers he is active in trying to unionize oil field workers in the Permian Basin. As a result of the foregoing news article, Thornton met with other officers of the Union and it was de- cided that the unfavorable publicity had seriously undermined his effectiveness as a organizer, and his employment with the Union was terminated on May 31, 1966. Seeking other employment, Thornton was ad- vised by an employee of the Respondent to contact N.D. Rose, a driller for the Respondent who was supervising a crew at oil rig 222 which was located near Sanderson, Texas, about 150 miles from Odes- sa. On June 8, Rose and Thornton talked on the telephone and Rose told Thornton to report for work as soon as possible at rig 222. On the follow- ing day, Thornton telephoned the Respondent's of- fice in Odessa to inquire about a job and was told by the receptionist that she would check and call him back. The receptionist spoke to Ralph James, the Respondent's drilling superintendent for the Permi- an Basin division, about Thornton's inquiry. Upon mention of Thornton's name, James recalled the newspaper story of May 23 and decided that Thornton would be an undesirable employee. To make certain that Thornton was the same person referred to in the news item, he checked with a local organization which provides information, prin- cipally to employers in the oil industry, concerning an employee-applicant's record of workmen's com- pensation claims, and involvement in civil and criminal court proceedings. Assured of Thornton's I We have also received from Respondent a "Motion to Strike Portions of Counsel for General Counsel's Answering Brief, and Reply Brief to Answer Brief" and, from the General Counsel, a "Motion to Strike Respondent's Reply Bnef to Answering Brief of General Counsel." In view of our disposition of this proceeding, we find it unnecessary to rule on the above motions 2 We have carefully examined the record herein and find the Respon- dent's allegation of bias and prejudice on the part of Trial Examiner to be unwarranted 3 The Tnal Examiner found an incident of interrogation by the Respon- dent not violative of Sec. 8(a)(I) of the Act No exceptions have been filed to this finding 166 NLRB No. 3 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD identity, James ordered that Thornton be notified that there were no jobs available. Thornton was so notified. On June 10, Thornton left Midland, Texas, where he was residing, and which is about 20 miles from Odessa, and drove to Sanderson to start work at rig 222. He arrived there about 3 a.m. on the fol- lowing day and, on June 12, began working for the Respondent. On that day, he was given the Re- spondent's employment kit, and filled out an em- ployment applicant form, as requested by Rose. In the space calling for the reason for Thornton's ter- mination of his job with the Union, he placed a question mark, remarking to Rose that that would probably cause the Company to require Rose to fire him. Rose replied that he did not believe so and that, as far as he knew, the Company was indifferent to unionism. The application form did not inquire of past criminal records. On June 16, the Respondent's payroll clerk at Odessa called to the attention of James the fact that a new employee (Thornton) was on the payroll for rig 222. This clerk customarily advised James of new hirings in the field. James got in touch via radio with Kenneth Burns, the toolpusher and Rose's im- mediate supervisor, who was stationed at rig 222's office. James told Burns that Thornton was to be fired as an undesirable employee because he had criminal charges against him. Burns ordered Rose to discharge Thornton. Rose testified that Burns told him, "We've got a man that we have to let go, that he has an undesirable reputation" and that Burns said "something about an arson charge." Rose told Burns he was short-handed and was reluctant to lay off Thornton, but Burns replied that the office had indicated they would send an older hand to replace Thornton. Thereupon, Rose told Thornton that he was being replaced by an older hand and Thornton remarked, "I expected that." Thornton asked Rose if the Union was mentioned by Burns and Rose said that Burns had told him not to mention the Union, "because it had nothing to do with it." Thornton's termination slip stated that he was laid off "for older hand." The question before us is whether the Respond- ent discharged Thornton because it learned from the May 23 newspaper item that Thornton was a union leader, as found by the Trial Examiner, or because the Respondent then learned of criminal charges involving Thornton, as claimed by the Respondent. Contrary to the Trial Examiner, we are not persuaded that it was an unlawful reason which motivated the discharge. The fact that Thornton was told that the reason for his discharge was to make room for an older hand, rather than because of the criminal charges reported against him, does not, in all the circumstances, justify the inference that the asserted reason was a pretext to make a discriminatory discharge. Nor is the evidentiary burden of the General Counsel met by the additional factors relied upon by the Trial Ex- aminer, such as the existence of an antiunion com- munity feeling or the vague reference in the record to "literature opposed to the Union" which the Respondent mailed to employees. There is no showing in this record that the Respondent itself en- gaged in any unlawful activity against the Union and, as indicated, the record even lacks substantial evidence of union animus on the part of the Re- spondent, from which a discriminatory motivation for the discharge could be reasonably inferred.' Also, we think it is altogether understandable why the Respondent, even if it did not employ Thornton in a position in which a good "public image" was as essential as it was in Thornton's prior position as union organizer, would not want to initiate an em- ployer-employee relationship with one of Thorn- ton's reported character.5 Viewing the record as a whole, we find that the General Counsel has failed to prove by a prepon- derance of the evidence that the Respondent's discharge of Thornton was unlawfully motivated. Accordingly, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint and amended complaint herein be, and they hereby are, dismissed. Chairman McCulloch, dissenting: For the reasons set forth in the Trial Examiner's Decision, I would adopt her finding of a violation by the Respondent in the discharge and refusal to reinstate William Lawrence Thornton and would approve her recommended remedial order. , The record shows that the Union was permitted to engage in solicita- tions for membership at the rigs 5 It is immaterial , of course, whether Thornton has, since his discharge, been absolved of both the bad check and arson charges, as asserted by the General Counsel TRIAL EXAMINER'S DECISION JOSEPHINE H. KLEIN, Trial Examiner: This case was heard by Trial Examiner Josephine H. Klein on October 4, 1966,1 pursuant to a complaint and notice of hearing, issued on August 24, on a charge filed by Local 826, In- ternational Union of Operating Engineers, AFL-CIO, on June 23. The complaint, as amended at the hearing, al- leges violations by Loffland Brothers Company, Re- spondent, of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), in that Respondent discharged William Lawrence Thorn- ton for his union activities on June 16 and interrogated employees concerning their union activities and sym- pathies on June 12. ' Unless otherwise stated all dates herein are in 1966. LOFFLAND BROTHERS CO. 197 All parties were afforded an opportunity to be represented and participate fully in the hearing. Respond- ent and the General Counsel were represented by coun- sel and the Union was represented by its business representative. The parties waived oral argument. Respondent has filed proposed findings of facts, and briefs have been filed by the General Counsel and Respondent. Upon the entire record in this case, from observation of the witnesses, and on consideration of the briefs, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS The complaint alleges, Respondent admits, and I find: (a) Respondent is a Texas corporation having a place of business in Odessa, Texas, where it is engaged in con- tract drilling of oil wells. During the past 12 months, a representative period, Respondent, in the course and con- duct of its business operations, performed services valued in excess of $500,000, of which services valued in excess of $50,000 were performed in States other than Texas. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. (b) The Union is now, and has been at all times materi- al herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES ALLEGED A. Alleged Discriminatory Discharge of Thornton 1. The facts William Lawrence Thornton is a personable young man 28 years old. He had been working as a roughneck or general worker, in all nonsupervisory jobs, in oil fields in the Permian Basin for something over 5 years prior to April 1966. On March 1, Thornton was indicted in Ward County, Texas, on an arson charge. The indictment accused him of burning a house occupied by one Frank Posey on January 29. Thornton was released on $5,000 bail. Ac- cording to Thornton, the prosecutor has twice requested postponement of trial and so far as appears no further ac- tion has been taken in this case. Thornton's uncon- tradicted and credited testimony was that the arson charge was initiated by his father-in-law, whose automo- bile had been burned, with some minor damage to his house. There is no evidence in the record that this indict- ment was reported in the press or otherwise publicized at the time it was returned. On April 1, while he was working for B.B.M. Drilling Company, he attended an organizational meeting of the Oil Patch Organizing Committee, a group under Local 826, International Union of Operating Engineers, AFL-CIO.. He joined the Union that day and on April 7 was elected secretary-treasurer and became business representative of the committee.2 On or about May 20 the San Angelo Standard-Times3 printed a story about the Oil Patch Organizing Commit- tee's activities, in which Thornton was identified and quoted as the "Union spokesman." Thornton and his wife had separated in November 1965. Under a divorce decree entered on March 18,4 Thornton was required to pay support for his wife and their two young children. Custody of the children was awarded to the wife, with right of reasonable visitation granted Thornton. On May 19 a judge of the Court of Domestic Relations of Midland County, Texas, sen- tenced Thornton to 3 days' imprisonment for contempt of court, based on his failure to make the support payment called for by the divorce decree. According to Thornton's uncontradicted and credited testimony at the present hearing, his refusal to make the support payment was oc- casioned by the fact that his father-in-law, brandishing a gun, had barred Thornton from visiting his children, who, apparently, were living with their mother at her father's home.5 On May 22, at the end of his 3-day sentence for con- tempt, Thornton was released to the custody of the sheriff of Ector County under a warrant for allegedly having passed a bad check. The warrant had been sworn out on May 28, 1963, and involved a check for $23.17 dated March 7, 1963. When taken into custody by the sheriff, Thornton paid the check and the information was dismissed. According to Thornton's credited testimony at the present hearing, he is not sure whether he wrote the check in question, since at the time it was written (and thereafter until sometime in 1965) his then wife was al- lowed to issue checks in his name. When he was arrested on the charge and paid the check, he was given no oppor- tunity to examine it closely and thus did not ascertain whether it had been signed by him or by his wife in his name. On May 23 the Odessa American, the only regular newspaper in the city, published a news item headlined "Union Leader Charged Here In Hot Check." The item recited "that Thornton is accused of cashing a bogus $23.17 check on March 7," without any indication that the year involved was 1963 - 3 years earlier. The short item also referred to Thornton's having served 3 days for "contempt of court," without identification of the court or the domestic nature of the matter. And then it reported that Thornton was out on $5,000 bond on an arson charge, "filed earlier this year in connection with the burning of a house trailer in Ward County" - with no indi- cation that the charge was originated by Thornton's ex-father-in-law or involved his property. The item ended with the following paragraph: "Thornton told officers he is active in trying to unionize oil field workers in the Per- mian Basin." The Texas Manufacturers' Association made wide mail distribution of a large "blowup" of that 2 Thornton's executed application for employment with Respondent shows his most recent term of employment with B B . M. Drilling Corr pany as running from January to February 1966 and employment with the Oil Patch Organizing Committee from February to May 1966. His testimony , however, indicates that his change of employment from B B.M. Drilling to the Union occurred early in April . I grant Respond- ent's request for finding No 5: "That on or about April 1, 1966, Thorn- ton joined the International Union of Operating Engineers, Local 826, quit his employment with B B.M. Drilling Company, and on April 7, 1966, became a Business Representative and Secretary -Treasurer of the Oil Patch Organizing Committee under Local 826 " San Angelo is about 100 miles east of Odessa and within the Permian Basin oil producing area 4 Thornton testified that he had been divorced in January Presumably he was referring to the initiation of the divorce proceeding. 5 Thornton also testified without contradiction that his ex-wife was committed to confinement for 4 hours, a fact which tends to corroborate Thornton's stated reason for disobeying the support order. 308-926 0-70-14 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD item among business and industry in the area, including Respondent. Copies were posted on the bulletin boards of some oil rigs in the area, but so far as appears they were not posted anywhere by Respondent. After the May 23 article appeared in the Odessa American,6 Thornton had two meetings with officers of Local 826. After discussing the matter, they agreed that the publicity given Thornton's brushes with the law had seriously undermined his effectiveness as an organizer for the Union. Accordingly, his employment with the Union . was terminated on May 31.7 The employment of roughnecks and other oilworkers is conducted in substantial part in restaurants and bars in the towns. The restaurants and bars maintain boxes in which workers may leave their names and addresses when seeking jobs. On or about June 8, Thornton was in a cafe and spoke to Jesse Dahl, an oilworker. Dahl told him that Bill Breed, a driller for Respondent, was shorthanded. The driller is the supervisor of a crew at the rig in the field.8 Thornton then telephoned Breed, who said that, while he was not shorthanded, two other drillers for Loffland were. Breed suggested that Thornton get in touch with N.D. Rose and Sam Golden, drillers for Respondent at rig 222, near Sanderson, Texas, about 150 miles south of Odessa. Learning that the rig in Sanderson did not have a telephone, Thornton called Breed back and asked him to have Rose telephone Thornton collect. Rose tried to reach Thornton by telephone that night but was unsuccessful. He did, however, reach Thornton around 8:30 the next evening. Rose said that he was shorthanded and could use two people immediately, since one of his workers was scheduled to leave for the Navy soon and another wanted a few days off. Rose hired Thornton to report for work as soon as possible. Thornton stated that he did not know another oilworker then available. He said that he could not get to Sanderson until Friday at the ear- liest, since he had to dispose of his household furniture before moving. Thornton also telephoned Respondent's office in Odes- sa to inquire about work. There was some conflict or con- fusion in the testimony as to whether Thornton commu- nicated with Respondent's office before or after he had spoken to Rose in Sanderson. Thornton at first testified that he spoke with the receptionist at Respondent's Odes- sa office before he spoke to Rose; Respondent main- tained that Thornton spoke to the Odessa office after he had made arrangements with Rose. Thornton admitted that his memory was not entirely clear on the matter, and on cross-examination he in substance corroborated Respondent's version of the timing. Accordingly, to the extent that it might be material (see discussion below), I find that Thornton did not call Respondent's Odessa of- fice until the day after he had been hired by Rose by telephone. When Thornton called Respondent's Odessa office, he spoke to Mrs. Herrington, the receptionist. She said she would check as to whether there were any vacancies and then call Thornton back. She thereupon talked to Ralph James, drilling superintendent, who was at the time in conference with J.W. Hall, Respondent's division manager for the Permian Basin. When informed of Thorn- ton's telephone call, James, recalling the newspaper story in the Odessa American concerning Thornton, decided that Thornton would be an undesirable employee. James instructed Herrington to check with the Indus- trial Foundation. The Industrial Foundation is an or- ganization maintained by business and industry, prin- cipally the oil industry, in the area to provide information about prospective employees. It maintains records and provides information mainly about workmen's compensa- tion claims which become a matter of court (and ap- parently administrative) record. There was testimony that it also sometimes provides some other information which is a matter of court record but does not systematically collect and maintain information other than that concern- ing workmen's compensation claims. There was a conflict in Respondent's evidence as to whether the Industrial Foundation ever provides credit ratings on prospective employees. According to Herrington's testimony, the Industrial Foundation informed her that Thornton had been "con- victed" on an arson charge and she relayed that informa- tion to James and Hall. James, however, later testified that Herrington had not said that Thornton had been "convicted" but simply that he had been held or indicted. James thereupon told Herrington to inform Thornton that there were no vacancies with the Company. Shortly thereafter Thornton called back. Herrington testified that when she informed him that there were no jobs available he told her that he understood that Rose was shorthanded in Sanderson. She nonetheless maintained the position that there were no jobs available and there had not been any for 2 weeks. On Friday, June 10, Thornton drove down to rig 222 at Sanderson. After losing the way,9 he arrived at Sander- son about 3 a.m. Saturday and put up at the trailer camp where he had been instructed to go. Rose had told Thorn- ton that there was to be a change of shifts and that Rose would be off work from Saturday morning until 4 p.m. on Sunday. On Sunday, Thornton met the other members of the crew and about 2 o'clock the four of them drove with Rose from Sanderson to rig 222, a distance of about 45 miles. (The conversation between Thornton and Rose during this trip is discussed below.) They went to work at 4 p.m. About 2 hours later, during the customary dull period after the shift had got into operation, Rose gave Thornton the Respondent's employment kit and an employment ap- plication form to be filled out. In filling out that form, Thornton listed the Oil Patch Organizing Committee as his most recent employer. In the box calling for the reason for the termination of that employment, Thornton put a question mark. At the time he pointed to this latest employer listed and said to Rose that that would probably cause the Company to require Rose to fire him. Rose replied that he did not believe so and that as far as he knew the Company was indifferent to unionism. 6 Similar items apparently were carried by the local newspapers in Midland and San Angelo 7 Respondent contends that the Union discharged Thornton Thornton testified that it was primarily his idea that he should give up his organizing job and initially the union officials felt he should remain on I find that the termination of Thornton's employment with the Union was one of mutual understanding, Thornton and the union officers agreeing that his current notoriety in the area would adversely affect his usefulness as a union or- ganizer and representative. But even a finding that Thornton was "discharged" by the organizing committee would not affect the Trial Ex- aminer's Decision of this case 8 A crew generally consists of the driller, with a derrick man, a motor- man, a backup man, and a lead-top man. Over the dnllers, in charge of the entire operation at a rig, is the toolpusher. 9 Examination of a map shows that Sanderson is relatively inaccessible by major highways LOFFLAND BROTHERS CO. 199 James testified that on or about June 14,10 Respondent's payroll clerk called to his attention the fact that Thornton was on the Company's payroll. James testified that the payroll clerk as a matter of routine called to his attention all new employees on the payroll.'1 At that point James got in touch by radio with Kenneth Burns, the toolpusher at rig 222. James told Burns that Thornton was to be fired as an undesirable employee because he had criminal charges against him. It is not en- tirely clear precisely what James said to Burns, but ap- parently he did mention the pendency of the arson indict- ment. Burns advised Rose that when Thornton was notified of his discharge no mention of the Union was to be made "because it had nothing to do with it." The intercompany change-of-status form on which Thornton's discharge was recorded states as the reason for his discharge: "Layed off for older hand." On the form-is a box which reads "Would you rehire? If `no' ex- plain below." For Thornton the "no" box had been checked but there is no explanation anywhere on the form. The form is signed by Burns, the toolpusher, under the date June 17, 1966.12 The name of J.W. Hall, who is division manager, is also stamped on the form in the column headed "Division Approval."13 In the portion of the form for "performance evaluation," all items are marked "average" except for "safety habits" and "per- sonal habits," which are marked "poor," and "physical fitness," which is marked "good." All the evidence, in- cluding testimony of Respondent's witnesses, was uniformly to the effect that Thornton's work was at least satisfactory.14 Respondent did not check with any of his past employees and Thornton's testimony was uncon- tradicted that he had never had any complaints about his work or any prior difficulty in securing employment. 2. Discussion Throughout Respondent has vacillated concerning its reason for discharging Thornton. At the hearing, James maintained that Thornton was discharged partly because of The criminal charges against him and partly to make room for D. D. Smith, an older employee, who at the time was working at another rig which was about to be shut down. In answer to my specific questions, James testified to a company practice of "bumping," whereby an older employee at a rig being closed down would be allowed to displace a junior employee at a continuing rig. However, his testimony in this regard was vague and it was not made to appear that the alleged practice had actually been followed in any case. Indeed, James specifically testified that Respondent did not follow strict seniority in making layoffs. Perhaps most significant, however, is the fact that Thornton was discharged with the notation that he would not be rehired, whereas James testified that when a junior employee is "bumped" he is not discharged but rather is placed in "lay-off 'status for 1 year. The circumstances of Thornton's being hired provide further reason for discrediting Respondent's claim that he was fired to make a place for D.D. Smith, a senior em- ployee. When he hired Thornton (and asked him if he could bring an additional worker with him), Rose had known of the imminent vacancies in his crew for some weeks but had not reported the facts to Respondent's division office. Had there been a company practice of "bumping," certainly Rose would have made inquiry of the Odessa office as to possible replacements for the em- ployees who were scheduled to leave. James conceded that Rose had authority to hire in the field and had not been required to clear through the division office in ad- vance. Additionally, although rig 222 was so shorthanded that some of the men (including Thornton) were working dou- ble shifts, Thornton was removed from his job 3 days be- fore Smith was able to report for work at the rig. Although Thornton was told, and the Company's inter- nal records state, that he was discharged to make room for a senior employee, Respondent now contends that the discharge was based on the criminal charges against him. In this connection Respondent's position is ambiguous: (1) on the one hand, it claims that Thornton's criminal record by itself made him unemployable; and (2) on the other hand, it contends that it was the publicity given the criminal charges that was crucial because of its effect on Respondent's "public image." Neither of these conten- tions can withstand scrutiny. At one point James indicated that the pending arson charge was particularly relevant and disturbing because rig 222 was a wildcat deep-well operation, which entailed great fire hazard. But James made no attempt to in- vestigate or make inquiry concerning the arson charge against Thornton. More important, he refused to state 10 The correct date appears to be June 16 11 James testified that this was done so the Company could check with the Industrial Foundation "to double check our drillers." His testimony continued: THE WITNESS- Well, we check before he's hired, when possible, and if not , well, soon after TRIAL EXAMINER: Well, didn't your personnel -does your person- nel officer know when a Foundation check has been made before somebody has been hired9 THE WITNESS: Yes, usually she does TRIAL EXAMINER. Well, did she know that Thornton had been checked before? THE WITNESS: Now, it was probably in the file and she didn't look in the file when the timesheet came in. She just saw a new name on the timesheet TRIAL EXAMINER. And your usual procedure is, you check with the Foundation before a person is hired, and nonetheless you said the personnel officer brings every new name to you THE WITNESS: Yes. TRIAL EXAMINER: -regularly? THE WITNESS Yes. TRIAL. EXAMINER. So that you can check with the Foundation9 THE WITNESS: That's right The payroll clerk did not testify James' testimony was internally inconsistent and inherently incredible I believe that the Thornton incident was not handled as a "routine" matter. Respondent in effect concedes as much in its brief, arguing that Thornton "directed sufficient attention to himself to bring about his discharge by the Division Office when he was discovered on the payroll-and this in fact did occur." 12 Burns testified that he had not written the reason for the action on the form; that Rose had previously filled that out as "Layed off for older hand " Subsequently, however, Rose testified unequivocally that he had not filled out the form, none of it was in his handwriting, and, in fact, he had never even seen the form It is not necessary for the purposes of this Decision to resolve this minor mystery While I make no finding in this re- gard, her conjecture is that when Burns signed the form and sent it to the division office the portion in question was left blank, to be filled in by the division office, which had ordered the discharge 13 At the bottom of the form is an illegible mark, apparently somebody's initials, with the date "6/20/66." 14 In its brief Respondent says: "Thornton was apparently a good Union organizer and hard-working employee, just as he was for the few days he was on Respondent's payroll." 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Thornton would be offered reinstatement if he was cleared of the arson charge. Significantly, although Respondent maintains very elaborate personnel procedures.15 its detailed application form does not call for any information as to an applicant's criminal background. Thornton was not asked anything about his criminal background, if any, and it affirmatively appears that Respondent's supervisory personnel were never instructed to make such inquiry.16 So far as ap- pears. none has ever been made of any job applicant. Thornton testified that when, on the way to the rig on his first day. he mentioned the matter to Rose. Rose said, "That don't make any difference." As a supervisor, and having worked for Respondent for about 6 years. Rose certainly would have known if Respondent had any spe- cial interest in or policy concerning the records and repu- tations of its employees. Respondent generally checks with the Industrial Foundation concerning the industrial injury history of prospective employees, but there is no evidence that it makes any similar effort-or any effort whatsoever-to ascertain whether job applicants have been embroiled with law enforcement authorities. And Respondent adduced no evidence that it had ever discharged or refused to hire anybody for criminal activi- ties or charges. It is inconceivable that the self-professed largest drilling contractor in the world has never had any employees or job applicants with criminal records or criminal charges against them. A word may be said about Respondent's argument that the fact that Thornton's employment by the Oil Patch Or- ganizing Committee was terminated because of the publicity given his difficulties with the law demonstrates the reasonableness and sincerity of Respondent's having discharged him for the same reason. The two situations are manifestly very different. As a business representa- tive of the Oil Patch Organizing Committee. Thornton did truly create the Committee' s public image; as a roughneck. Thornton could hardly make any impact on the image of the world's largest oil drilling contractor. In its organizational drive in the area, the Union could ill af- ford to be represented by a person who was vulnerable to the type of newspaper publicity or notoriety that was given Thornton. The headline "Union Leader Charged Here on Hot Check" obviously could seriously impede the Union's organizational activities regardless of the facts concerning the charge. On the other hand, a headline reading "Loffland Worker Charged Here on Hot Check" would scarecely injure or damage Respondent's reputation. The analogy or comparison which Respond- ent seeks to draw might perhaps have some validity if Thornton had been seeking employment as a company of- ficial or even sales representative. However, as previ- ously stated, Thornton was hired as a roughneck, a general worker at a remote location. Respondent does not provide a consumer service and its roughnecks have no dealings with the public as part of their employment. As Thornton put it, the qualifications for his work were "a strong back and willing mind to work."' He testified without contradiction that he had worked for 8 or 10 con- 15 Respondent sought to introduce voluminous detailed materials con- cerning its personnel practices. I excluded the material as a whole but ad- mitted the portions designated by Respondent as relevant to its professed concern as to the personal background, character, and reputation of its employees. 16 William Walker, Respondent's vice president and manager of its domestic divisions, testified as follows tractors and had never known any to inquire into appli- cants' reputations or criminal records. That neither Respondent's claimed "bumping" policy nor Thornton's unfortunate involvement with the law was the reason for his discharge is clearly shown by the testimony of Vice President William Walker when he was asked whether Respondent would offer Thornton rein- statement if he was cleared of the pending charge. The relevant testimony was as follows: Q. (By Mr. Dodson) If William Thornton is not convicted of the criminal charge pending against him would you offer him reinstatement? A. I would say. "no", that we would have to eval- uate his past experience real closely with other con- tractors. I think he has a problem in clearing his own name; and when this was done, to our satisfaction. then we would consider this. Q. Well, if he is found innocent of the charges, or is not convicted of the charges. what would he need to do. or what could he do to clear his name, that would satisfy you? A. Well, I would say his name would be cleared from that viewpoint. If we were also satisfied as to his work ability and the manner in which he has con- ducted himself since this time, such as this - deter- mination of this case,-we would evaluate. Q. The determination of this case would have some bearing on whether or not he was offered rein- statement? A. Well, I won't say the determination of the case. We. as will be brought out here later, the reason we fired him was because of his notoriety in this area; and if that is completely cleared up, then, it's possible we would consider it. I would not say yes or no right now. Q. Do you, at this time, have any indication that his work record has ever been anything but good, with Loffland or any other employer? A. I've heard nothing, one way or the other. If. as Respondent states in its brief, "the only reason Thornton was denied employment at the Division Office on June 9 was because of the criminal charges of arson and a worthless check pending against him,"17 it is dif- ficult to understand why Respondent would insist on a full investigation of his past work record as a condition to considering him for reemployment if he was cleared of the criminal charge. Nor is it readily discernible why James devoted a considerable portion of his affidavit to a Board field examiner to explaining the Company's system under which Smith. and older employee, "bumped" Thornton. Equally unexplained is why Respondent's own internal records stated that Thornton had been "layed off for an older worker" but. for no stated reason, Thornton would not be rehired. James testified that he had read the item about Thorn- ton which had appeared in the Odessa American but he disclaimed any knowledge of the details of Thornton's troubles. It is a reasonable inference that what James noticed was the fact, tersely stated in the headline, that Q Does Loffland Brothers, at any time, request a police record report on individuals9 A When a man is going overseas he has this police record as part of his passport application We do not have it on our application form 17 The bad check charge was dismissed, and apparently was not pend- ing at the time here involved LOFFLAND BROTHERS CO. 201 Thornton was a "Union Leader." Certainly this must have been the fact which made the item of such excep- tional interest to the Texas Manufacturers ' Association, since it is to be doubted that that organization circulated by mail enlarged copies of all newspaper reports of local crimes or criminal charges. is The item appeared when the Union was most active in its organizing campaign. The evidence was undisputed that the general community feeling, as reflected in an editorial appearing in the Odes- sa American on May 30, was strongly antiunion. Re- spondent's opposition to the Union was made known to its employees by literature mailed to them.19 A brief comment is in order on Respondent 's present argument that the case should be dismissed because Respondent was "entrapped ." Thornton testified that in one of the meetings he had with the union officers leading to termination of his employment by the Oil Patch Or- ganizing Committee , one of the men did suggest Loffland as a place to apply for work . In its brief Respondent. ar- gues that the Union was, in effect , using Thornton as a "plant" to "entrap" Respondent into committing an un- fair labor practice: There is only one explanation for why Thornton would have called [Respondent's] Division Office for employment after he had been asked to come to Rig 222 by Rose. This reason was to lay a predicate for an unfair labor practice charge. This could have been on the basis that he had been denied employ- ment at the Division Office , and further strengthened if Rose failed to take him on when he got to Sander- son; or in the alternative , if Rose did place him on the payroll, he would have directed sufficient attention to himself to bring about his discharge by the Divi- sion Office when he was discovered on the payroll - and this in fact did occur... Respondent's argument then continues: At Rig 222 Thornton fills out the Respondent's ap- plication form with Rose. and in filling it out conceals the reason for the termination of his employment with the Union, and, at the same time. calls Rose's specific attention to the fact that his last employer was the Oil Patch Organizing Committee of the Union and even suggested that it might cause his discharge. I do not believe that Thornton "concealed " the reason for the termination of his employment with the Union. In fact, by putting a question mark at the relevant spot in Respondent's employment application form and calling attention to it, Thornton was inviting inquiry if Rose was in ignorance . Additionally , on the way to the rig Rose had asked Thornton why he was no longer with the Commit tee and Thornton had replied that "due to the bad publici- ty that was printed about me... I decided I'd terminate my contract." I credit Thornton's testimony that he filled in the application form the way he did because he was sure that Respondent's representatives, including Rose, knew why his employment with the Organizing Commit- tee had been terminated.20 The most that could be said is that Thornton was taking steps to provide evidence if Respondent should fail to hire him or should discharge him. Under the circum- stances. there was nothing unusual or sinister in Thorn- ton's contemplating the possibility that he would be dis- criminated against for his union activities. That Respond- ent itself was aware that its discharging Thornton might well appear "suspicious" is shown by James' affirmative- ly instructing Burns not to mention the Union when in- forming Thornton of his discharge. In this connection, Rose testified that Burns told him not to mention the Union "because of a law suit." The concept of "entrapment" is apparently adopted I from the criminal law. In criminal law it does not con- stitute entrapment for a law enforcement officer to pro- vide the opportunity for a person to commit a crime. "En- trapment occurs only when the criminal conduct was `the product of the creative activity' of law enforcement offi- cials." Sherman v. U.S., 356 U.S. 369, 372. As said in Hansfordv. U.S., 303 F.2d 219, 222 (C.A.D.C.): A person is not entrapped when an officer merely presents him with an opportunity to commit an of- fense in order to detect criminality rather than to in- stigate it. Thornton simply provided Respondent with the same opportunity to commit an unfair labor practice which is presented to any employer by an employee or job appli- cant who is a known union sympathizer or activist. 21 At the time Thornton applied for work with Respond- ent he was unemployed and obviously in need of a job. He accepted the job offered by Rose and performed satisfactorily. Indeed, for the purpose of taking the job he pulled up stakes and disposed of his household furniture in Midland (which is about 20 miles from Odessa). The present case therefore is completely distinguishable from N.L.R.B. v. T.H. Burns, d/b/a Burns and Gillespie, 207 F.2d 434 (C.A. 8), on which Respondent relies. As stated by the Board in Burns and Gillespie on remand (113 NLRB 434,435) :22 ... [T]he additional evidence does not refute the testimony of the applicants as to their need and genuine desire for work, or their denials under strenuous cross-examination that they had been coached by, or had received instructions from, 11 In the course of the hearing, counsel for the General Counsel stated that he intended to show that Thornton had been "blacklisted" in the area. No such showing was necessary, or, indeed, entirely relevant, to the present case against Loffland However, it may be observed in passing that a complaint against Sharp Drilling Co and Midland Exploration Co of Midland, Texas, alleging discriminatory refusal to hire Thornton was scheduled for hearing along with the present complaint (Case 16-CA-273 1) It was settled before the record was opened. Although I sustained Respondent's objection to the evidence, in its brief Respondent referred to Thornton's testimony that a charge had also been "filed against Cactus Corporation, and they paid me back wages and gave me my job back " as J W Hall, manager of Respondent's Permian Basin division, testified that, although he was aware of the Union's organizing campaign in the in- dustry generally, he was not aware of organizational activities in Respond- ent until June 20, when the Union claimed a majority and requested bar- gaining However, he also testified that he had noticed union bumper stickers on the cars of some of Respondent's employees He testified further that Respondent had "not said anything to [its] men which would discourage their decision , for [union] membership or for rejecting mem- bership." However, further examination disclosed that Respondent had sent to its employees literature opposed to the Union, and Rose testified that there were posted on the bulletin board at his rig "just a few facts" against the Union that Respondent had printed 20 Respondent is involved in an apparent inconsistency in arguing that Thornton "concealed" the facts and at the same time maintaining that Thornton went to unusual lengths to direct attention to his prior employ- ment as the predicate of a subsequent unfair labor practice charge. 21 The Federal law is established that the defense of entrapment to a criminal charge must be based on the conduct of Government agents Since no agent of the Board or any other Government agency was in- volved in the present matter, the concept of "entrapment" would be inap- plicable to the facts of the present case if a criminal charge were involved. 22 Reversed on other grounds 238 F 2d 508 (C.A 8) 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union Representative Gilker as to how to present themselves for work. Clearly, the record does not support a claim of bad faith. At both the original and reopened hearings, the Respondents failed to elicit any evidence to prove that the applicants were aware of. or had knowingly participated in, any scheme to entrap the Respondents into a violation of the Act, or that they would not have accepted work if ten- dered to them.... Even if the job applicants, who were unemployed at the time they requested employ- ment. had reason to know or suspect that the Respondents had a discriminatory hiring policy, such knowledge would not render their request for work mala fide where all the evidence indicates that they would have accepted work if it had be tendered. Under the Board's decisions. Thornton's accepting the job and performing satisfactorily and conscientiously thereon militates against any contention that Respondent was "entrapped" into violating the Act. See International Association of Bridge, Structural and Ornamental Iron Workers, Local 600 (Bay City Erection Co.), 134 NLRB 301,307-308. 3. Conclusion The record would not support a finding that Thornton was fired to make room for a senior employee. which is the reason for the discharge ascribed in Respondent's change-of-status record and given to Thornton at the time of the discharge. The pendency of the arson indictment, the 3-year-old bad check charge. and the 3-day commit- ment for contempt of a domestic support order have been seized on by Respondent as sheer pretexts to justify Thornton's discharge. On all the evidence. I find that Thornton was discharged because of his well publicized union sym- pathies and activities. B. The Alleged Interrogation By an amendment to the complaint made at the hearing, the General Counsel alleged that Respondent violated Section 8(a)(1) of the Act on June 12 when N.D. Rose. driller at rig 222 in Sanderson, Texas. "interrogated its employees at Sanderson. Texas, concerning their union activities and desires." In support of this allegation the General Counsel ad- duced only the testimony of Thornton. Thornton stated that on June 12 he rode with Rose and the other members of their crew from Sanderson to the worksite, a distance of about 45 miles. Thornton's testimony in this connec- tion was as follows: ... [Rose] asked me-he says. "Since you're from Midland-Odessa maybe you can tell us something about the Union. how it's coming along there." He says, "We don't get any information, other than what little bit is on the billboard," and he said, "There's nobody down here in this isolated town." and he says. "How many members have you got-have we got?"' And I said, "Somewhere between 800 and 1100. I believe, I don't remember, but it was in that figure somewheres." Thornton testified that Rose had driven on that trip; Rose said he had not driven but had sat in the front seat. 23 I further note, however, that the General Counsel, on whom the bur- den of proof rested, did not present any corroborative evidence Since there were three other persons in the car at the time of the alleged conver- Rose said that he did not "have any particular conversa- tion with Mr. Thornton" in the course of that trip. Both Rose and Thornton impressed me as honest, conscien- tious witnesses. I find that the conversation did take place as related by Thornton23 and that Rose simply did not re- member it. In my opinion, Rose's failure to remember this conver- sation is entirely understandable. It appears to have been very casual and in the nature of general conversation. Rig 222 was in a very isolated location, and it is but natural that Rose. as a worker in the industry, would be in- terested in recent developments in the Union's organizing campaign, which appears to have been the subject of great general interest in the entire area. Although Rose was at that time serving as a "supervisor," it appears that he does not always so serve. At the time of the hearing, for example, he was working as a derrick man, a nonsu- pervisory position. Although, as stated, he was a "supervisor" under the Act at the time involved in the present case. Rose's at- titude and outlook were not those of a "management" representative. On Thornton's own recital, Rose's questions concerning the Union appear entirely noncoer- cive. This conclusion is further dictated by the fact that Thornton. as a former paid union organizer, was not like- ly to be coerced or intimidated by questions concerning the Union. Indeed, it appears that in the few days he worked at rig 222 he openly solicited additional union memberships, including Rose's. On the basis of the record and the demeanor of the wit- nesses. I find and conclude that the General Counsel-has failed to establish by a preponderance of the evidence the allegation that Respondent, through N.D. Rose, a super- visor. coercively interrogated employees in violation of Section 8(a)(1). Thus it will be recommended that the amended complaint be dismissed so far as that allegation is concerned. CONCLUSIONS OF LAW 1. Respondent. Loffland Brothers Company, is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is and at all material times has been an employer within the meaning of the Section 2(2) of the Act. 3. Local 826, International Union of Operating En- gineers. AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 4. By discharging William Lawrence Thornton on June 16, 1966, and refusing to reinstate him thereafter, Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. The General Counsel has not shown by a preponder- ance of the evidence that Respondent has engaged in any unfair labor practices other than that found above. 7. To the extent that Respondent's requests for findings have not been granted in effect in the foregoing Decision, they are denied. sation, it would appear that the General Counsel should have produced corroborations, at least on rebuttal, after Rose denied Thornton's state- ments. LOFFLAND BROTHERS CO. 203 THE REMEDY Having found that Respondent has engaged in an unfair labor practice . I shall recommend that Respondent be or- dered to cease and desist therefrom and take affirmative action of the type conventionally ordered in such cases. which I find necessary to effectuate the policies of the Act. Having found that Respondent discriminatorily discharged William Lawrence Thornton in violation of Section 8(a)(3) of the Act, I shall recommend that Respondent be required to offer him immediate and full reinstatement to his former or substantially equivalent position . without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of earnings suffered by reason of the discrimination against him in the manner established by the Board in F.W. Woolworth Company, 90 NLRB 289. Backpay shall carry interest at the rate of 6 percent per annum, as set forth in Isis Plumbing and Heating Co., 138 N LRB 716. Further, it will be recommended that Respondent preserve and, upon request , make available for the Board, all payroll records, social security payment records, timecards , personnel records and reports, and all other records necessary or useful in determining the amount of backpay due and the right of reinstatement under the terms of the Recommended Order. RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that Respondent, Loffland Brothers Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local 826, Interna- tional Union of Operating Engineers, AFL-CIO, or any other labor organization, by discriminating in regard to hire, tenure, or any other terms or conditions of employ- ment. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Offer William Lawrence Thornton full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify William Lawrence Thornton if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary or useful in determining the amount of backpay due under the terms of this Recommended Order. (d) Post at its division office in Odessa, Texas, and at each oil rig it maintains or operates in the Permian Basin, copies of the attached notice marked "Appendix."24 Copies of said notice, to be furnished by the Regional Director for Region, 16, after being duly signed by a representative of Respondent, shall be posted immediate- ly upon receipt thereof, and be maintained for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.25 IT IS FURTHER RECOMMENDED that the amended com- plaint be dismissed insofar as it alleges any unfair labor practices other than as herein specifically found. 24 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 25 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith " APPENDIX NOTICE To ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board, and in order to effectuate the policies on the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT discourage membership in Local 826, International Union of Operating Engineers, AFL-CIO,, or any other labor organization, by discharging employees or in any other manner dis- criminating in regard to hire or tenure of employment or any term or condition of employment. WE WILL offer William Lawrence Thornton im- mediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority or other rights or privileges previously enjoyed. WE WILL make the above-named employee whole for any loss of pay he may have suffered by reason of the discrimination against him. All our employees are free to become or refrain from becoming members of the above-named labor organizes tion, or any other labor organization. LOFFLAND BROTHERS COM- PANY (Employer) Dated By (Representative) (Title) 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Note: We will notify William Lawrence Thornton if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 8A24, Federal Office Building, 819 Taylor Street, Forth Worth, Texas 76102, Telephone 334-2921.