Petroleum Transportation Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Petroleum Transportation Co. and General Teamsters and Food Processing, Local 87, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 31-CA-7022 and 31-CA-7185 May 22, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On December 29, 1977, Administrative Law Judge Harold A. Kennedy issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed cross-exceptions and a brief in support. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Petroleum Transporta- tion Co., Bakersfield, California, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I In discrediting dispatcher Colby, the Administrative Law Judge mistak- enly attributes a statement to Colby that on the day he gave the final in- structions to Byrum he had been drinking too much beer, characterizing this as an admission. In fact it was Byrum who testified that Colby had made the statement to him. We find this mistake insufficient to reverse the Adminis- trative Law Judge's overall credibility finding which is otherwise fully sup- ported by the record. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discrimi- nate against employees to discourage their sup- port of General Teamsters and Food Processing, Local 87, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT interrogate employees concern- ing their union sympathies or activities. WE WILL NOT inform employees that we know of union activities or who union activists are. WE WILL NOT inform employees that an em- ployee has been reinstated to work against the Union. WE WILL NOT request employees to work against the above-named Union or any other la- bor organization. WE WILL NOT threaten to close down rather than sign a union contract. WE WILL NOT threaten employees with the loss of their jobs because of union activities. WE WILL NOT threaten to boycott a former em- ployee union supporter. WE WILL NOT issue and apply new work rules without prior consultation with the above named Union. WE WILL NOT refuse to bargain collectively with the above-named Union as the collective- bargaining representative of our employees in the appropriate unit. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Paul Byrum and Reginald S. Clampett immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without preju- dice to their seniority and other rights and privi- leges, and make them whole for any loss of earn- ings they may have suffered as a result of our discrimination against them, plus interest. WE WILL. upon request, bargain collectively with the above-named Union, as the representa- tive of our employees in the appropriate unit with respect to rates of pay, wages, hours, and other conditions of employment, and embody in a signed agreement any understanding reached. PETROLEUM TRANSPORTATION Co. 236 NLRB No. 28 254 PETROLEUM TRANSPORTATION CO. DECISION HAROLD A. KENNEDY. Administrative Law Judge: This proceeding under the National Labor Relations Act, as amended (29 U.S.C. § 151, et seq.), was heard before me on September 13, 14, 15, and 16, 1977,' in Bakersfield, Califor- nia. The proceeding is based on charges filed on May 2 in 31-CA-7022 (amended June 22 and 27) and on June 27 in 31-CA-7185 by the General Teamsters and Food Pro- cessing, Local 87, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Union), collective-bargaining representative of the truck- drivers and mechanics employed by Respondent Petro- leum Transportation Co. (referred to herein as PTC and as the Company). The amended consolidated complaint, is- sued on August 22 by the Regional Director on behalf of the General Counsel of the National Labor Relations Board, alleges violation of Section 8(a)(1), (3), and (5) of the Act. Respondent is alleged (pars. 12, 13, 14, and 15) to have violated Section 8(a)(3) by discharging, and refusing to reinstate, the following employees because of union or other protected concerted activity: Paul E. Byrum, on or about January 30; Paul E. Byrum, on or about April 21; 2 Reginald S. Clampett, on or about April 6; and Melvin W. Cunha, on or about June 14. Respondent is alleged to have refused to bargain collec- tively in good faith with the Union since on or about April 6. Specifically, the amended consolidated complaint alleges that Respondent violated Section 8(a)(5) of the Act by (a) issuing written work rules to unit employees on or about April 21 without notice to or consultation with the Union and (b) thereafter applying them to unit employees. Respondent is alleged to have violated Section 8(a)(1) through statements made to unit employees by John A. Lyddon, James M. Van Horn, Glenn W. Colby, Al Gal- braith, Thurman Mullins, and Charles D. Smithson, all company officers or officials acting on its behalf as agents and "supervisors." 3 Respondent eliminated a number of issues in its answer and by stipulation, including the following: 1. Respondent is a California corporation with its office and principal place of business located in Bakersfield, Cali- fornia, where it is engaged in the wholesale buying, selling, and transportation of petroleum products. 2. Respondent is an employer engaged in commerce and a business affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. It sells goods or services valued over $50,000 to California customers which meet the Board's jurisdictional standards. Its annual gross exceeds $500,000. t All dates refer to 1977 unless otherwise indicated. Counsel for the Gien- eral Counsel has requested that the transcript be corrected so as to change the word "early" as it appears at pages 615 (line 12). 616 (line 23) and 617 (lines 7 and 13) to "earlier." No objection has been made to these proposed changes. and the transcript will be so corrected. 2Par. 12(b) of the complaint alleges that Byrum was reinstated to his former position on or about February 12 3 Par. II alleges 29 separate instances of 8(aXI) violations through state- ments of agents and supervisors. The 8(aX3) and (5) allegations set forth in par. 10 through 15 were also alleged to be derivative 8(a)(1) violations 3. Each of the following was an agent and a "supervis- or" as the latter term is defined in Section 2(1 ) of the Act: James M. Van Horn, co-owner and president; John A. Lyddon, co-owner and secretary: Thurman Mullins, dis- patcher; Al Galbraith, dispatcher; 4 Glenn Colby, Dis- patcher; 5 Charles D. Smithson, Dispatcher. 4. The appropriate unit for the purpose of collective bar- gaining is as follows: Included: All truckdrivers and mechanics employed by the Employer at its facility located at 3910 Gilmore Street, Bakersfield, California. Excluded: Dispatchers, office clerical employees, guards and supervisors as defined in the Act. 5. The Union, identified above, is a labor organization within the meaning of Section 2(5) of the Act. Following an election held on March 22 the Union was certified as the exclusive bargaining representative of the above unit on or about March 30.6 Respondent denies that it discharged Clampett. Respon- dent admits that it discharged Byrum as alleged-initially on or about January 30, and again on April 21, following reinstatement on or about February 12-and Cunha as al- leged. It denies that the discharges were unlawful and that it has violated the Act in any other manner. Background President Van Horn and Secretary Lyddon oversee the transporting of petroleum products from Respondent's of- fice and place of business in Bakersfield. They rely on dis- patchers to assign drivers to drive its trucks loaded with gasoline, diesel, or other petroleum products to various points in California. Insofar as possible the dispatchers ar- range for each driver to drive a loaded truck back to Bak- ersfield (referred to as a "back haul") as well as out of Bakersfield on each trip. Union activity first occurred in October or November 1976. Driver Paul Byrum 7 testified that he first discussed the subject of a union with fellow drivers "Jed" (Reginald) Clampett and Tom Poarch at a stop either in Wilmington 'Galbraith left Respondent's employ on or about February 12 It was stipulated initially that Glenn Colby was a "permanent dispatcher and super'isor within the meaning of Section 2( 1 ) of the Act" on and after March 26. Subsequentl) it was stipulated that Colby was a "rank-and-file driver" between March 15 and 25 and eligible to vote in the March 22 election The parties agree that Colby served as a relief dispatcher between March 2 and 14, but they disagree as to his authority during such period Counsel for the General Counsel contends that Colby acted as a dispatcher before March 2. but Respondent maintains that before that date he worked only as a driver 6'The record indicates that there have been some negotiations between the Company and the Union after April. The General Counsel called as witnesses an official of Union Local 87. the president and secretary of Respondent and seven persons who were or had been employed by Respondent Three of these persons were alleged discnminatees who had driven trucks for Respondent. Paul Byrum, one of these alleged discriminatees. was the pnncipal witness for the General Counsel, and his testimony provides the basis for much of the background information Respondent in its defense recalled the two officers of Respondent and offered the testimony of a dispatcher, a former office employee, an em- plover who hired one of the alleged discriminatees after he left PTC. and two persons concerned with the secunrity of an oil refinery where one of the alleged discriminatees was suspended for a 30-day period. 255 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or San Pedro, California. Byrum said that a night or so later in Zingo's Bar and Restaurant, located in or near Bakersfield, Dispatcher Al Galbraith told him that he had heard about the union talk, and that it was known that he. Frank Sanders and Mel Cunha were the ringleaders. Dave Smithson, another dispatcher for Respondent, was also in Zingo's that night and told Byrum that "you guys shouldn't be talking union." Byrum testified that he had approached Smithson to den) that he had engaged in union activity. but Smithson told him: . . .he had already heard about it. He wanted me to know that we would be in a lot of trouble. This stuff had happened before, and every driver was sent down the road. And it would be no different in this case. And he said, "You guys will ruin a good job. They'll park all the trucks. You'll ruin your job." On the next day in the dispatch office, Dispatcher Gal- braith told Byrum: . . . cut the union talk. There's already been one man run off for talking union. Galbraith also told Byrum at that time that Lyddon and Van Horn knew about the union talk and that there were plans "to make it nice around here" for the drivers. Drivers Frank Sanders and Melvin Cunha also testified that Dispatcher Dave Smithson inquired of them about union talk in late 1976. Sanders refused to discuss the mat- ter, whereupon Smithson indicated to him that unhappy drivers "ought to look elsewhere for a job." Cunha, who had inquired about the lack of work, was told "they had heard" of his union activity, even though he would not be fired for it. Union activity resumed in mid-January after the Com- pany announced a new wage plan which operated to re- duce the amount of bonus each driver would receive. On the next Saturday or Sunday, January 22 or 23, Drivers Byrum, Frank Sanders, and Melvin Cunha went to the union office and met with Joseph Foster, president and business agent of Local 87. Authorization cards were signed. That afternoon the three men called other drivers and invited them to attend, with their families, a meeting that night to discuss "working conditions and the new rules." The meeting was held at a place on Oak Street in Bakersfield called "Pizzaville." Byrum led much of the dis- cussion. Twelve or 13 drivers attended, and most of them signed union authorization cards. A day or so later, Dispatcher Galbraith told Byrum that he knew about the Pizzaville meeting and that "you guys are in hot water." Galbraith stated again that he knew that Byrum, Sanders, and Cunha were the ringleaders of the union activity.8 Other drivers testified of the Pizzaville meeting and of being questioned about it by Respondent's dispatchers a day or so later. Sanders stated that Galbraith told him that a driver called him about the meeting and that he (Gal- sCunha was told by Dispatcher Smithson that he was considered a ring- leader. Sanders said he heard Galbraith tell Byrum that Byrum, Clampett. and Jim Rollins were ringleaders, but that Byrum asserted that it was he who was the ringleader. braith) was able to sit across the street from the restaurant and see whose cars were parked nearby. Charles Thomas denied to Galbraith that he had attended the meeting. Cunha testified that Galbraith told him the next day "that we weren't fooling anybody" and would "wind up fired." Clampett testified that Dave Smithson stated the next day "there would be no work until further notice" and that Clampett "ought to know damn good and well what's the matter." Byrum learned about a week later on January 29, around midnight when he saw Galbraith at Zingo's, that he was going to be terminated. Byrum asked for the reason and was told, "you know why, Paul." 9 Byrum went to the dispatch office the next morning, ac- companied by Cunha, and was officially discharged. He received from Galbraith a payroll check and a slip of pa- per, received as General Counsel's Exhibit 4, which is dat- ed September 28, 1976, and bears the caption "Notice of Bonus Reduction." The slip had Byrum's name on it and noted the following: Failure to haul a load of crude from King City to Bakersfield; Quitting without 7 days notice on 9/29/76; Rehired 9/29/76; and 100 percent of Bonus (de- duction).'t He was also given three other papers at the time which angered him so much that "the minute I left the trailer I tore them up." These other papers, Byrum said, made reference to three other incidents: Failure to call in from Signal Hill; making a call to a hamburger stand; and failure to call from the Angora Lease. Byrum testified in some detail as to all of these incidents as they were obvi- ously referred to as reasons for his discharge. Only the Signal Lease incident, which occurred only shortly before Byrum's discharge on January 30, will be discussed here." Byrum testified that he was dispatched to the Signal Hill Lease by Galbraith on or about January 24. It was a new lease (i.e., a new source of petroleum) to the Company, and Byrum was given a map to help him locate the tank there. Byrum reached the area as it was getting dark. He tried to find it, but was never able to do so. Concluding Galbraith had given him wrong instructions, Byrum returned to the company plant without a load, logging about 12 hours. 12 The next morning Galbraith asked Byrum in the dis- patch office why he had not brought back a load from Signal Hill or not called in. Byrum said he explained that he would not find the Signal Hill Lease tank and had not been told to call in. He said he then asked Galbraith where he was expected to call him- 9 Byrum testified that the conversation continued as follows: I said. "Because I'm a ringleader?" He said. "Yes." And he said, he told me. "If the other guys don't get into line, the same will happen to them." .. . He said "It's none lf ms doing. The bosses told me to do it. You're a good man Drivers Chuck Thomas and Frank Sanders testified being at Zingos and hearing Galbraith's conversation with Byrum. Their testimony supports Byrum's account. 0' Byrum said he received a partial bonus of about $240 around Decem- ber 20, 1976. He said Respondent had deducted $180 for the failure to make a backhaul from King City. Van Horn testified essentially to the same ef- fect. l The other incidents are discussed in fn. 19, infra. I credit Byrum's version of all four incidents. 12 Byrum had become wary of Galbraith's dispatches due to his drinking. Byrum testified that while looking for the Signal Hill tank he said to himself at one point: "I've got another dumb-s dispatch." 256 PETROLEUM TRANSPORTATION CO. "At Zingo's or at your girl friend's?" I said, "Last time I called you, you told me to do whatever I thought best, and I did it this time." And he said, "Yeah, forget it." Byrum said another driver, Chuck Thomas, was present in the dispatch office and explained that the map given By- rum was wrong and that he (Thomas) was able to find the tank in the daylight only because of help he had. Byrum said he made two or three more trips before being terminated on January 30. He heard nothing further about the Signal Lease incident until the date of his termi- nation. According to Byrum, Dispatchers Smithson and Gal- braith both indicated that he was being terminated for union activity and for being the ringleader. Byrum said that Smithson communicated such to him by making affir- mative nods to questions asked by Byrum-"Dave's nor- mal gestures." Byrum testified that Smithson also stated at the time, in Cunha's presence: Paul, my life has been hell since this union stuff. He said my life at home and my life here at the job has been hell. I'm looking for another job myself.... And then I told Dave I'd always liked the job there. and he said, "Paul you've been a good employee, you always were." As indicated in the General Counsel's complaint, Byrum was returned to duty as a driver for Respondent on Febru- ary 12. This occurred after Byrum spoke to Van Horn and Lyddon on February 8. Byrum told Van Horn, and also Lyddon, who joined the meeting later, that his firing was unjust. I explained about how Al Galbraith dispatched us from Zingo's, dispatched us to leases that weren't even there, fictitious leases, wrong directions, opposite di- rections. And we were to call him after office hours and we'd pick him up on the beeper and he was at Zingo's either half-drunk or fully drunk. Van Horn and Lyddon both denied that Byrum had been fired for union activity. Lyddon told Byrum that he was fired for "not calling in on that Signal Hill load." Lyd- don and Van Horn promised to investigate Byrum's com- plaint against Galbraith and get back to him. Lyddon did get back to him on February 11 when he told Byrum at another meeting, with Van Horn and Mullins present, that "most of what you told us ... proved to be true . . . and we are going to reinstate you." 13 Lyddon indicated at the same time that Galbraith was being terminated. According to Byrum, Lyddon then asked how he felt about the Union. Lyddon also asked if Byrum "could sway any of this union talk . . . change their minds?" Byrum in response said he was a member of the Union but could change the minds of the drivers "if thev had reason to be changed," i.e., if such things as bid trucks and shorter hours were provided. Ac- 1 Van Horn testified that Byrum was gisen backpa, for 2 dass "to make up the two days since he reported the incident. and . the , eek he was. off before" would he considered "a leave of absence for not completing that back-haul." cording to Byrum, Lyddon indicated that he was not con- cerned about the union saying, "there would never be a contract"-but he was about the possibility of any "NLRB action," which he referred to as being "sticky stuff." Byrum recalled Colby was breaking in as a dispatcher in February after he returned to work. Byrum said Colby had told him that "he had full authority" within a week or 10 days after his return. On the same day he said Colby also told him in front of Dispatcher Smithson that- . . .You're the new union job steward. We've got a new title for you. I was told to make you happy, take care of you, run you south. That's your favorite run. is that right? He said. "I was told not to work you too many hours, and whatever I do, keep you happy." Again. Colby told Byrum that Van Horn and Lyddon would never let the drivers go union-"They'll park every damn truck." Lyddon inquired of Byrum about the morale of the men around mid-March. Byrum said his response was, "lousy," and noted that the men wanted bid trucks, cleaner trucks, and better insurance. Lyddon told Byrum in the same con- versation that: Well, just let them know that we're going to do what we can, and we expect a "no" vote from [sic] the union. Lyddon also said that day, according to Byrum, that he was a good driver and was liked by customers and the other drivers. Colby spoke to Byrum about the Union in the dispatch office at least "a half of dozen times," according to Byrum, between the election on March 22 and the time of Byrum's last discharge on April 21. In the first conversation, Colby said, "You've done it now. They just spend $10,000 to get a 'no' vote and you guys voted it in. You'll be the first to go down the road. They're mad." Byrum said he overheard another conversa- tion in which Colby told driver Marty Abrahamson that "your union steward . . . ruined a good thing for you." Byrum's final dispatch was by Colby on Sunday af- ternoon April 17. Colby telephoned Byrum at his home and offered him a "Hanford to Glendale" run for the fol- lowing day. which was accepted. According to Byrum, Col- by said there might be a backhaul from Anaheim and that he was to check his hook before going out at 5:30 a.m. for any further instructions. There were no further instruc- tions, so Byrum drove his load to Glendale and returned without ever calling in. Nothing was said on his return, Byrum said, but on the next day Colby asked why he had not called in. Byrum stated that he explained that he had not because he had not been given instructions to do so. According to Byrum, Col- by indicated in a response that "I thought" I told you to call in. Colby also testified about this incident and said he told Byrum "at least 3 times" to call from Glendale and that he did have a backhaul from Anaheim. He also said Byrum had acknowledged his mistake on his return by saying, "Oh, I should have wrote that down. I forgot it." 257 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James Nation, an assistant to Colby at the time this oc- curred, supported Colby's version. He said he remembered Byrum's return from Glendale "in the morning" 14 of April 19 and that he overheard Colby and Byrum discuss the matter. He said Byrum stated, "Well, I forgot. I guess I should have written it down." Nations also testified that shortly after such conversation Colby told Nations, "Re- member you heard that." Byrum said Lyddon discharged him on April 21 because he "didn't call in." Byrum told Lyddon he thought he was being fired for union activity, but Lyddon denied this and referred to other things in his file, including the King City and Signal Hill incidents.' 5 The Discharges Byrum's terminations. Byrum was terminated first on January 30 and again on April 21 following his reinstate- ment on February 12. The evidence of record convinces me that both discharges were for his union activity and were therefore unlawful. Byrum actively promoted the Union, and such fact was well known to Respondent's officers and dispatchers. The record discloses a strong union animus on the part of company officials. It is apparent that Respon- dent was prepared to terminate Byrum-and any other union activist-if given an apparently legitimate reason therefor. None occurred as far as Byrum is concerned, al- though Respondent thought an opportunity to terminate him appeared in late January, just a few days after the Pizzaville meeting, and again in April. Respondent asserts that both discharges of Byrum were for cause. The record does not support Respondent's con- tention with respect to either termination. Galbraith, Respondent's dispatcher agent who terminat- ed him on January 30, expressly told him that he was being fired for being the ringleader of the union organizing drive. Galbraith told him that the night before in Zingo's Bar in the presence of Sanders and Thomas and again on the fol- lowing day, the actual day of termination, in the Company's dispatch office. On the latter, Galbraith stated to Byrum: "I told you to leave the union alone. I told you this was going to happen." Dispatcher Smithson likewise indicated to Byrum that union activity was the real reason for his discharge. The testimony of Byrum, Sanders, and Thomas concerning Galbraith's explanation for the dis- charge was entirely believable. Neither Galbraith nor Smithson was called to deny it.'6 It is not likely that Gal- braith and Smithson would have taken it upon themselves to disclose such a reason for Byrum's discharge without having a basis for it. Van Horn testified that Byrum was discharged because of his failure to make a backhaul from the Signal Hill 14 Nations later said he did not know what time the conversation oc- curred. "i Byrum did say that Lyddon referred to the dissension that had oc- curred "since all this union talk." Byrum also said Lyddon told him that "we keep everything in files that you do" and mentioned a failure of B) rum to get "a light weight ticket." Byrum said he knew nothing about the latter incident. 16 Smithson was still employed by the Company at the time of the hear- ing. Lease, but I do not find his testimony convincing.l7 Van Horn made no inquiry of Byrum about the Signal Hill inci- dent and was ready to accept Galbraith's word that Byrum was at fault for failing to make the backhaul. It is obvious that Galbraith, who had a history of drinking too much and giving wrong instructions, was responsible for the fact that Byrum drove back empty from Signal Hill as he had given Byrum the wrong map.'8 Van Horn and Lyddon un- doubtedly realized their termination of Byrum on January 30 was open to question after hearing and checking on Byrum's complaint and thus decided to reinstate him.' 9 Moreover, with Byrum back on the payroll it appeared that there was a chance that Byrum might persuade other driv- ers to lose their enthusiasm for a union. 20 7 Byrum said Lyddon also told him during the meeting he had with him and Van Horn on February 8 that he had been fired for not calling in on the Sinal Hill load. 8 As noted earlier, Driver Thomas testified that he had been given the wrong map before by Galbraith. Drivers Clampett and Sanders indicated that they had received confusing and incorrect dispatches from Galbraith. Van Horn and Lvddon also knew that Galbraith had had a drinking prob- lem. Van Horn admitted that Dispatchers Smithson and Mullins had told him that Galbraith was frequently seen in Zingo's Bar. 1 As noted earlier, at the time of his January 30 discharge, Byrum was given papers indicating four separate incidents were involved in his dis- charge. None of them motivated his termination, and all four were therefore pretextual. The Signal Hill incident was the most recent one. The King City incident involved Byrum's failure to bring back a load from King City after a trip to the Bay area in September 1976 and consequent loss of part of his yearly bonus. His conduct was entirely proper, even though he later offered to make up for not bringing a load back. The Company had failed to give him a computer card for one of the stops that day (Avon), and he returned without a load late at night after being gone nearly 20 hours--contrary to the driving rules as understood by drivers and dispatchers alike ( 12 consecu- tive hours driving, 15 hours total in I workday). Byrum, Cunha, Clampett. and Sanders all testified that it was necessary to make false entries in their long sheets on long hauls so as to make it appear they were driving "legal hours." I'he Angora Lease and "hamburger stand" incidents were not pursued by Respondent at the hearing and could have only been pretextual anyway. The Angora Lease dispatch occurred on January 21 and was made to By- rum by Galbraith. Byrum was to make certain deliveries but, in any event, hase two loaded trucks. his and another one being driven by another driver, Chuck TIhomas, back "in here by 7, loaded, no matter what." Byrum could not pick up a load at the Angora Lease because it was "fogged in" and he could not find it, but he helped the other dnver and had both trucks loaded and back in the yard as instructed. When advised of the situation, including the fact that the trucks were loaded and in the yard on time, Dispatcher Galbraith responded: "Good, that's all that matters. I'll take care of the Angora later." The hamburger stand incident seems petty and, in any event, afforded no basis for discharge. The incident occurred on or about January 24 as Byrum was about ready to leave the company yard. Galbraith overheard another driver, Max Mcintosh, call Byrum on his CB radio and ask that he stop at a nearby stand so they could talk. Galbraith took Byrum's microphone and told Mcintosh there would be no stopping. Galbraith asked Byrum then to make note of "anything out of the ordinary" that he saw any driver do. Obviously no fault could be imputed to Byrum as he did not stop at the stand. 0 B)rum said Lyddon asked him to "sway" the men away from the Union at the time of his reinstatement. Lyddon testified that Byrum volun- teered to help persuade drivers to vote against the Union. Van Horn stated that Byrum offered to improve communication between the Company and the drivers. There was thus a sharper conflict of testimony on this point between Lyddon and Byrum. but it is not a crucial issue. In any event, I find Byrum's account the most credible one. Van Horn agreed that at the time of Byrum's reinstatement Lyddon had told Byrum that it was best for a "little company not to have a union contract." Clampett testified that after the election Dispatcher Colby had told him: The only reason that the) hired Mr. Byrum back was that he guaran- teed Mr. Van Horn and Mr. Lyddon that he would work solely against 258 PETROLEUM TRANSPORTATION CO. Byrum was again fired on April 21, supposedly for fail- ing to call in from Glendale about a backhaul that could have been made from Anaheim on April 18. Again, Byrum's version-that his instructions did not require him to call in-is more credible than the dispatcher's. Colby's testimony was equivocal. He claimed that he "believed" and at the same time "knew" that there would be a backhaul from Anaheim on the Sunday afternoon (April 17) he called Byrum to tell him of the Hanford to Glendale run for the following day. Byrum stated that Col- by was uncertain on Sunday if there would be a backhaul when Colby called and ultimately told him to disregard the backhaul unless written instructions were left for him in the dispatch office. No written instructions were left at the dispatch office. Colby claimed that Byrum admitted his mistake on his return to the yard on the day of the run, April 18, by saying that he "forgot it." James Nations, a former employee, supported Colby's testimony, although he obviously was confused in thinking that Byrum had re- turned to the yard sometime that morning.2' Byrum stated that he returned to the yard in the late afternoon of April 18 and nothing was said to him about failing to call in by any of the dispatchers present, Smithson, Mullins, and Col- by. According to Byrum, Colby did raise the question about his failure to call in from Glendale the next morning. Colby at that time said he "thought" he had told Byrum to call in and later acknowledged that on Sunday, the day of the dispatch, he "drank too much beer" and did not get down to the dispatch office. Byrum did acknowledge that he indicated to Mullins or Colby that he may have "fouled up" by not calling in from Glendale-even though he did not consider himself at fault. Byrum said he was anxious to please company officials, especially Dispatcher Thurman Mullins who was understanding about confusing dis- patches. Said Byrum: And due to be (sic) reinstated, I was willing to show fault of mine on anything that could make them hap- py. I didn't want to seem like I was completely right. I didn't really foul up. I was not told to call in, but I realized I should, being as I was dealing with Colby. 22 One of Lyddon's parting comments to Byrum when he terminated him on April 21 clearly indicated that union activity was a definite factor involved in the discharge. As reported by Byrum, Lyddon stated: "Well, looking at your record here, as a matter of fact, since all this union talk," he said, "there's been noth- ing but dissension here and trouble. We've had noth- ing but trouble. I just don't think we need your type of person in our employ." the election and stop it, and against the union movement, and he did not do this, which is obvious. The Company feels that he screwed them. They will never help an- other driver, and they will never take another driver into their confi- dence again. 21 Nations is a friend of Van Horn's daughter and lived in the Van Horn home while he worked for the Company. 22 It was this conversation, which did occur in the morning but the day following Byrum's Hanford to Glendale run, that Nations apparently over- heard. Clampett's discharge. Reginald Clampett said he drove for Respondent from August 12, 1974. until he was termi- nated on or about April 6. He said he was the Company's number two driver in seniority when he left.23 Respondent contends it did not discriminatorily dis- charge Clampett as he voluntarily left employment with the Company to take a driver's position with Frank Echenique, a hauler of livestock. There is evidence which indicates that Clampett quit the Company, but I am persuaded that Lyd- don did discharge him on April 7 in the discriminatory manner as Clampett testified. Clampett's employment with PTC came to an end fol- lowing his delivery of a mixed load of gasoline to a Texaco station in Buttonwillow. California, on April 4. Clampett had discovered that unleaded gasoline had blended with the premium gasoline in his truck soon after he arrived at the station and had begun unloading it. He discharged the blended gasoline in the station's premium tank in accord with the Company's standing instructions. Clampett thought there was an equipment failure which caused the mixing and promptly advised Dispatcher Colby and John Lyddon of that fact. Clampett testified that he had been dispatched to the Buttonwillow station in a truck (I and IA) different from the one that he usually drove (15 and 15A). Clampett stat- ed that he "told Mr. Colby that gasoline has a tendency to mix the way the truck is designed." Colby said he did not recall any details of the April 4 dispatch. Colby was sure that there was "no problem with the truck," although he acknowledged that Clampett did report to him that the truck "wasn't manifolded right." According to Colby, Clampett "complained about every truck he ever drove." Clampett testified that on the day following his run to Buttonwillow he saw his regular truck being driven by an- other. He said Colby told him on that date that there was no work for him "until further notice" and that "it might be a good idea" to have his charts and timecards turned in "if they wished to terminate" him. Clampett met and talked with Lyddon on two occasions on April 7. Clampett gave this account of the two meetings: Well, I said, "It looks to me like the company doesn't trust me. They have some reason for believing that what I did I did on purpose." And he said, "I am not qualified to make a state- ment on that at this time. Please come back at 3 p.m. and we will discuss it." That is the contents of the conversation. Well, there was one other thing. I got a little hot- headed and I told him, I said, "Do you wish me to quit now, turn in my Motorola cards and leave?" He said, "No, I do not. I wish you to come back at 3." That's the contents of the conversation. Q. Now, when did the second conversation take place? A. At 3 p.m. Q. And where was that? 23 Driver Sanders testified that of the 16 drivers who were employed at PTC at the time of the election in March only he and one other driver were still with the Company 259 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. In Mr. Lyddon's office. Q. Was there anyone else there besides you and he? A. No, there was not. Q. What was said in this conversation? A. When I came in Mr. Lyddon greeted me quite cordially, and I asked him what type of decision he had made, and he said: "Well, we have thought about a great deal of the problems we have had since the union movement. You and I have both spoke of the sabotage problems that we had." And I agreed we had spoke of such. And he said, "I feel at this time that it would be much better for you and for us to eliminate one of our biggest problems here at this company." I asked him what that problem was. He said, "You." And he promptly had my check totally completed. He handed it to me, wished me well, told me that any time I needed a recommenda- tion to have the people call Mr. Lyddon at his office. preferably to call him and no one else. And I asked him as I left, I said "Does this complete the roster list with its two sets of X's?" And he just smiled, said goodbye, and I left.24 Such testimony of Clampett, insofar as it relates to the second meeting, conflicts with Lyddon's, but I find Clampett's version under the circumstances more credi- ble.25 Lyddon denied telling Clampett that he was going to fire him in either conversation. He said he had ordered tests on a sample of the blended gasoline (to determine whether there was a driver error or equipment failure) but did not yet know of the results. According to Lyddon, the test results became academic after the second meeting with Clampett. Quoting Lyddon: He told me that he'd decided to quit: that there wouldn't be a future for him with Petroleum Trans- portation. I'm not sure whether in the morning meeting or the afternoon meeting, but he talked about his income in the prior year, that he'd made $28,000. He talked about the payment on his home, which was $457.00 a month. And he felt that one of two things would hap- pen: that there would be a strike and he wouldn't make money during the strike, or there would be a union and if there were time and a half provisions he wouldn't work as many hours and make as much money. The testimony of Colby and Echenique do not detract from Clampett's credibility. Clampett acknowledged that 24 Clampeit testified ihat ('olby showed him a roster of drivers (neot Ihe one for March which wals identified by Colby) a couple of limes vwhlle employed by the Company Acc.ording to Clampett. Colby told him Ihat one set of X's by drivers' names indicated the drivers who had attended the Pizzasille meeting and would eventually he terminated 2 The circumstances point to a readiness on the part of Respondent It terminate him and any other union advocate. Clampett was known as one of the ringleaders of Ihe union drive and was so identified by Galbraith at Zingo's Balr on the night Of January 29 C(olby greeted Clampett as a "uniln representative" and told him after the election that he was a "short-term" employee. Clampelt had told I, ddon that he had signed a union card. and Lyddon had expressed to, him hi. opposition to the Union. he did tell Colby and Smithson on the day of his termina- tion that he had another job, but he denied saying to either that he had quit his job at PTC. The fact that Clampett had been in contact with Echenique about a job several days before is consistent with his testimony that he "could smell termination." He wanted "to have another job ready to step into" in the event that he was terminated. The job he went to paid him $500 or $600 less a month and required him to pay his living expenses while driving across the country. "A man would not be smart to throw that kind of a job away," he said. Respondent refers to two other incidents involving Clampett as suggesting why he should have felt "insecure in his job position with the Company" and thus explain his state of mind at the time of his departure from PTC. One of the incidents occurred just a few days earlier, either late in March or early April, and involved the "over-delivery" of unleaded gasoline, rather than a split load of premium and no-lead as ordered, to a Major Bros. station in Kettle- man City. The other incident occurred in 1976 and in- volved Clampett's draining of gasoline residue left in his tank truck at his home. Van Horn and Lyddon spoke to Clampett about the latter incident, and Clampett agreed not to make the mistake again. Clampett was not ques- tioned about the Kettleman City episode. Colby and Van Horn referred to the incident, but only Colby claimed any first-hand knowledge of it. Colby could recall little about it other than the fact that Major Bros. had called about hav- ing a spillover of premium and no no-lead and that he had traced it to Clampett. Colby said Van Horn had told him to straighten it out and that Van Horn "don't let little things like that worry him to death." In any event, Respon- dent does not contend Clampett was fired over either inci- dent on the basis that he left the Company voluntarily. Cunha's discharge. No doubt Respondent was anxious to terminate Cunha, another "ringleader" for the Union, just as it had Byrum and Clampett. The General Counsel did not establish, however, that Cunha was in fact dismissed for any reason other than the suspension he received for failing to stop at a stop sign at the Lion Oil Refinery, also known as Tosco, on June 14. Thus, paragraph 14 and so much of paragraph 15 and other portions of the complaint as they relate to the discharge of Cunha will be dismissed. Cunha, who had driven for Respondent since October 1975, was dispatched on June 14 to pick up two loads of gasoline at Tosco. He arrived for his first load sometime in the late morning at the main gate of the refinery where there is a railroad track, a flashing light and a stop sign. He said he "stopped momentarily," put the truck in low gear and "proceeded maybe two to five miles an hour across the tracks." A guard on duty at the gate, Henry Rodriquez, approached Cunha, charged him with running the stop sign and asked for his name. Cunha told Rodriquez that he did stop and refused to give his name. Cunha admitted telling the guard something like "you're not a cop just because you have a uniform." According to Cunha, the guard "act- ed kind of hostile" and then ordered him out of the truck, whereupon Cunha stated to Rodriquez that "he was look- ing for an ass-kicking." Rodriquez testified that Cunha did not stop at the stop sign, and that he did not order him out of the truck. Ac- 260 PETROLEUM TRANSPORTATION CO. cording to Rodriquez, Cunha got out of the truck and came after him uttering obscenities. The guard reported the incident to his supervisors Chuck Cunningham and Don Elissague. Elissague, the official in charge of safety at Tos- co, called Respondent's office and presumably obtained Cunha's full name from Dispatcher Colby.26 When Cunha returned to Tosco in the afternoon for his second load Elissague approached him and told him that he was banned from the refinery for a period of 30 days and that he should contact his dispatcher. Elissague said Cunha indicated at the time that other drivers made "roll- ing stops" (pointing to one doing so at the time as they talked) and that Rodriguez had been belligerent, a notion that he obviously rejected out of hand." Shortly after returning to the dispatch office Colby ad- vised Cunha that Van Horn had fired him "as of now." Later in the afternoon, however, Colby told Cunha that a "hearing" would be held about the incident at the Lion Refinery. The so-called hearing held on June 16 served little purpose other than to offer Elissague an opportunity to again explain his safety policies and state that the 30-day suspension of Cunha would not be lifted. He also called attention to the fact that there was a record of a previous violation by Cunha for failing to stop at the stop sign in the previous February. The meeting was attended by Cunha and Dispatchers Mullins and Colby. Cunha said he tried to explain his posi- tion with respect to the incident but "nobody would listen to me." Elissague stated, according to Cunha, that "what- ever that guard says was law, because that's the way it had to be." Admittedly neither of respondent's dispatchers made any effort to change Elissague's mind about the sus- pension. Cunha's termination followed immediately after the meeting at Tosco. Colby told him "he was sorry that things had to be this way, but he wasn't the boss .... " From the record it is apparent that Cunha's termination was an ac- complished fact before the hearing. Cunha's treatment at the hands of Lion Oil representa- tives struck me as not entirely fair. T he guard's account of the incident, according to Elissague, was not open to chal- lenge. The meeting with Elissague was in no sense a hear- ing, for Cunha's continued suspension was a foregone con- clusion. On the other hand, Cunha's conduct was subject to criticism. Tosco's conduct is not in question here. And it is essential that safety procedures be enforced in an area where petroleum products are loaded. It is also apparent from his own testimony that Cunha was belligerent with Rodriguez. What is important here is that "Respondent's reaction to the situation" (quoting front the General Counsel's brief) was entirely reasonable under the circum- stances.2" Van Horn pointed out that he was concerned not 2 ('Colb) testified that he had given Cunha's name to R-odrieueL over the phone. Rodriguez stated that he made no call to Respondent's office lie said Cunningham "went up to) the loading rack aind obhtained the name 'Mel' " 7 Elissague considered Rodriguez "ver) dedicated." ( unha testified that at the time of the incident Elissague said Rodriguez "reported a lot of driv- ers for running that stop sign." 28 There is nothing in the record to suggest that (Cunha's suspensin hbv Tosco resulted from ans collusion on the part of ans official of Respondent. only about the fact that Cunha could not be dispatched to enter the Lion Oil facility but also that he "was greatly concerned about his attitude in the presence of a customer or a supplier." Respondent had dismissed other drivers for suspensions at refineries so Cunha's discharge is consistent with action taken in similar situations. I am unable to con- clude that Cunha's union activity played any part in Re- spondent's decision to terminate him. 9 8(a)(1) Statements of Respondent's Agents Paragraph 11 of the General Counsel's consolidated amended complaint alleges Respondent committed 29 sep- arate violations through statements made to employees by six of its agents. The General Counsel concedes in his brief that one of the allegations, set forth in paragraph I I(i), was not sustained. Drivers Byrum, Cunha, and Thomas testified that within a day or so after the Pizzaville :neeting that Dispatcher Galbraith indicated to each of them that their union activi- ties were known to the Company. Byrum stated that Gal- braith told him, "You are in trouble, the union will never go," and "They'll park the trucks." Cunha testified that Galbraith said, "we weren't fooling anybody," and the union drivers would end up being fired. Thomas denied knowing about the Pizzaville meeting which prompted Galbraith to respond: "Well, they must not trust you if you were not there." Such testimony, which was credible and never contradicted, supports the allegations of subpara- graphs (a), (c), and (d). Galbraith indicated to Byrum about midnight of Janu- ary 29 that the "bosses" were terminating him because of the union activity, and that others would go too "if they don't get into line." Two other drivers, Sanders and Thomas, were also at Zingo's that night and also recalled that Galbraith identified Byrum as one of the union ring- leaders. Byrum stated that on the next day, when he was officially discharged, Galbraith made similar statements- that he was being terminated for being a union ringleader, that "the union would never work" and that other drivers would be "run off" if thev did not leave the Union alone. Dispatcher Dave Smithson. who was present in the dis- patch office at the time. also indicated to Byrum that he was being discharged for union activity, stating that "the union is not the way to do it." Cunha was also in the dis- patch office on January 30 and heard some of the conver- sations concerning Byrum's termination. Cunha indicated that the dispatchers made it clear that Byrum was being terminated for union activity, although other reasons were being assigned for the discharge. Cunha recalled Smithson saying at the time: . . . "Van Horn is not going union. He's going to shut the whole situation down, the whole operation." Clampett testified that Smithson told him that Stan Horn and L.yddon "would either park the trucks or I do not consider it significant that Van Horn initiall) thought ('anha's suspension ;ias Indefinite He testified that it made no difference that the 'uspensirn was onli for 30 dais ;Is he wais ver) much concerned with the temperament of the ('ompan 's driers This is is also adequate answer to the ,General Counsel's contention thmu Cunha could have been dispatched to facilities otlher thi San (Oil for the period of the 30-das suspension 261 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sell them and go to Mexico and sit for a year and come back under another name." Such uncontradicted testimony of Byrum, Sanders, Thomas, Clampett, and Cunha supports the allegations contained in subparagraphs (e), (f), and (g) of paragraph 11 involving statements of Galbraith and paragraph I I(h) in- volving statements of Smithson. As indicated above, the General Counsel concedes that paragraph 1 l(i) was not sustained. The statements attribut- ed to Smithson in subparagraphs (j) and (p) of paragraph II also were not established. Sanders did testify, as the General Counsel states in his brief, that the drivers were "messing up a good job," but this did not amount to a threat of termination as subparagraphs (j) and (p) assert. Subparagraphs (bb) and (cc) of paragraph 11 were sus- tained by the credible testimony of former PTC mechanic Sumner. He stated that he heard Smithson tell Van Horn that Byrum, who had been recently fired by PTC, had se- cured a job at Hy Cox. Van Horn thereupon tried to call someone at Hy Cox to "put in a good word" for Byrum with his new employer. Sumner said Smithson then went on to explain that "Byrum won't be able to find a job anywhere in Bakersfield after this." 30 Byrum, Clampett, and Sumner testified credibly to state- ments made by John Lyddon and sustained subparagraphs (b), (q), (s), (y),31 (z), and (aa). Byrum stated that at the time of his reinstatement in February Lyddon asked what he thought of the Union. After Byrum replied that he had signed a union card, Lyd- don told him the Union would "never go." Lyddon also stated at the time there would never be a contract. Lyddon expressed concern about possible "NLRB action," how- ever, and asked Byrum if he could help "sway" the union talk of the drivers and "change their minds." Lyddon had a similar conversation with Byrum later on a Saturday a few days before the election. At that time Lyddon inquired. "What can we actually do to make the drivers happy?" He also asked about the men's morale at the time, to which Byrum responded "lousy." Lyddon at that time told By- rum: . . . "Well, just let them know that we're going to do what we can, and we expect a "no" vote from the Union." Lyddon was equivocal and vague about what he had said about the Union to employees. He did concede, how- ever, that he did tell Byrum and two other drivers that "a union would be bad for the company" and that he hoped that they would vote against the Union. Van Horn also testified, after being shown his affidavit, that Lyddon had told Byrum that "he felt it was best for a little company not to have a union contract." Clampett testified that Lyddon inquired of him before the election in the presence of Dispatcher Mullins if there were "some unhappy boys in the crew" and whether they had decided to "install the union." According to Clampett. Lyddon also stated at that time that he felt that "the union '0 Sumner testified that V\an Horn was unable to get through to Hy Cox at the time and indicated on the phone that he would call back at another time. The record does not show whether Van Horn ever got in touch with H¥ Cox, hut Byrum testified that he "just made four trips" for Hy Cox. It wvas not established that Lyddon asked an employee "what the UTiotn would ask for in negotiations," but the general allegation was supported bh the record. would not work" and inquired how many had signed cards. After the election Clampett said Lyddon asked how the men felt about a contract and how "we can defeat this proposal?" Lyddon stated at that time there would be no contract, adding that "it would be a bloody fight." Sumner recalled that he was present when Colby, Van Horn, and Lyddon discussed who had signed union cards. He recalled that Lyddon at the time said there would be "no union at PTC" and that the Company would "fire their ass" in the event "the drivers didn't want to go along with their program." Paragraph I I(m) alleges that Dispatcher Thurman Mul- lins told an employee that Respondent knew who the union activists were and that they would terminate them. This allegation was supported by the testimony of former PTC mechanic Guy Sumner. He heard a conversation be- tween Colby and Mullins in early February. Colby identi- fied Byrum, Cunha, and Sanders as the union ringleaders and commented that "there's ways to get rid of these peo- ple." Mullins agreed with Colby and said: "Yes, the first mistake they make out they'll go." Glen Colby routinely engaged Respondent's employees in conversations about the Union both before and after the union election on March 22. Subparagraphs (k), (1), (n), (o), (r), (t), (u), (v), (w), and (x) of paragraph II allege that statements made by him involved 10 separate 8(a)(1) viola- tions. All of these allegations were established except for subparagraph (n)3?2 Byrum recalled that Colby made antiunion statements to him soon after his reinstatement in February when he was acting as relief dispatcher for Thurman Mullins. According to Byrum, Colby stated to him that he (Colby) had the "full authority" to dispatch like any other dispatcher. Dispatch- er Mullins was present at the time and confirmed Colby's authority saying, "Do as he tells you." Colby referred to Byrum at the time as a "ringleader" or as the "union stew- ard" and stated that it was "crazy" to think about a union. He told Byrum that the Union would "never go" with "the bosses" at PTC. Colby went on to say at the time that "they know" that Byrum, Cunha, and Sanders were ring- leaders and would be first to be let go. According to Byrum, Colby uttered numerous antiunion statements in "several" conversations after the election when he was working as full-time dispatcher. Byrum testi- fied in detail about one in particular. Quoting from part of his testimony: He said, "All I can tell you now is enjoy your short time here. You won't be here long. I've been here for five years. I know Jim Van Horn; I know John Lyd- don. There won't be a contract. They'll shut the place down. They'll move the trucks. They'll sell them, whatever they have to do, but they will not sign a contract." . . . He mentioned to me that it was my fault, I was the ringleader. He said, "You'll be the first one to go down the road." He said, "So will your bud- dies." A few days later Byrum walked into the dispatch office and heard Colby tell Abrahamson that Byrum, the "union X Colby was asked on cross-examination if he talked to employees about thile tlnion in March or April, Colby grudgingly conceded, "I guess I did." 262 PETROLEUM TRANSPORTATION CO. steward . . . ruined a good thing for you"; also, "They'll park the trucks," and "they'll move them." Clampett testified that sometime shortly before the elec- tion that Colby showed him a driver list and told him that the red X's next to the names of certain drivers indicated whom the Company believed to have attended the Pizza- ville union meeting and whom it intended to terminate be- fore the election. Clampett said he asked Colby about the roster sheet after the Union won the election, and Colby responded that the drivers favoring the Union would still be "going . ..down the road." 33 Colby also indicated to Clampett at the time that Byrum had been reinstated only because he had agreed to work against the Union. Clam- pett was not sure of the dates of these conversations, but the record indicates that Colby was acting as a dispatcher for Respondent on all of these occasions.34 Marty Abrahamson, a former PTC driver, testified that Colby told him just before the election and at a time when Colby was working as a dispatcher that voting for the Union would be "ruining the best job in town" and that Van Horn "would close down the doors" before signing a contract with the Union. Abrahamson testified that Colby made statements to the same effect after the election.3 The credible testimony of these driver witnesses supported the allegations contained in subparagraphs (k), (1), (o), (r), (t), (u), (w), and (x). It was not established that Colby told an employee that Respondent knew who had signed union authorization cards. Subparagraph (n) will be dismissed.3 A comment about Colby's authority to speak for the Company before March 26 is in order here. The parties stipulated that Colby was a permanent dispatcher and su- pervisor within the meaning of Section 2( 1) of the Act on and after that date. Respondent maintains that Colby had no supervisory authority prior to that time, even though he admittedly served as relief dispatcher a short time earlier. But the question of whether statements made by Colby were attributable to Respondent does not depend on whether he was a supervisor as defined in the Act. I find that all of the above statements of Colby which the Gener- al Counsel's witnesses testified to were attributable to the Company whether he was working as a supervisory enm- ployee or not. The record indicates that his statements ac- curately expressed company policy during the relevant pe- riod of time before and after the election. The employee witnesses perceived that he spoke for management of PTC. Under applicable labor law precedents, if not under the accepted rules of agency, it is clear that Colby spoke to such witnesses as an agent of Respondent and his conduct must therefore be attributed to it. See International Associa- tion of Machinists, Tool and Die Makers Lodge No. 35, etc. v. N.L.R. B., 311 U.S. 72 (1940); also Aircraft Plating Com- ~3 Colby later denied that he ever showed Clampett a sheet with marks indicating who were "union sympathizers or people that 'ould be dis- charged." I credit Clampett's testimony over Colby's. 34 It will he noted that the complaint alleges that all of the statements occurred "on or about" a certain date. 3s Abrahamson indicated there were numerous conversations with Colby before and after the election. It "stuck out in mm mind," he said, that Colby would often speak of "how stupid the drivers were for voting for the union," 1 Colby did not threaten employees with "worse Jobs'" as such but the general allegalonti of subparagraph (u) was supported. pan.y. Inc., 213 NLRB 664 (1974) and cases cited therein."37 Respondent characterizes the challenged statements of its various agents as "isolated, sporadic instances of possible coercive language" and argues that there were "repeated instances of drivers inducing supervisors to engage in con- versations about the union activity by initiating the conver- sation and asking questions about the Company's atti- tude." The record refutes both assertions. The language employed by all of its agents, Galbraith, Smithson, Colby, Lyddon, Mullins, and Van Horn involved clear threats or were otherwise coercive to its employees because of their union sympathies. It is clear that Respondent's representa- tives showed no hesitancy about initiating a conversation about union activity. Finally. Respondent points to a letter notice of "neutral- ity and repudiation" issued by President Van Horn in Feb- ruary at the time of Byrum's reinstatement as proof that "actions on the part of Mr. Galbraith or alleged actions on the part of other management personnel past, present, or future were cleared up." I am also unable to agree with this contention. It is apparent that PTC employees at that point had heard so many threats about the loss of their jobs due to union activity that Van Horn considered it wise to make an effort to disclaim responsibility for the many antiunion statements. The Failure To Bargain Charges Admittedly the Union was certified, following the elec- tion on March 22, as the exclusive bargaining agent of Re- spondent's truckdrivers and mechanics on or about March 30. Union Official Joseph Foster contacted PTC President Van Horn on or about April 6 and "requested a meeting for the negotiations at that time." Van Horn stated that he was unable to meet "at that time" because his partner was out of town. At a subsequent time, Foster did meet with a representative of Respondent but not until after he learned on or about April 21 that the Company had issued a set of written work rules for its drivers. President Van Horn said that he and Secretary Lyddon had agreed on the set of work rules and issued them on or about April 21. He conceded that he did not inform the Union before it issued the rules. Initially Van Horn indicated that work rules had been issued at one time previously, but he ultimately conceded that there were only prior oral policies. He also acknowl- edged that some of such oral policies had not been en- forced by the Company. Also, it is clear from his testimony that the written rules cover new subjects, or at least changed prior oral policies in effect.38 ? G.4F Corporulon v. N.L.RB 524 F.2d 492 (C.A. 5. 1975). cited by Respondent, is inapposite. The court in that case simply held that the "lmit- ed service" of Wlnifred Reed, a rank-and-file employee, as a temporary foreman did not disqualify him from voting in an election. The case did not involve the issue of whether a statement by Reed could be properly attnribut- ed to his employer. Nor does the case at bar present any issue concerning the denial of any of Colby 's rights under the Act. S3 B'an Horn finally agreed that Rule 7 (tach chart procedures), based on a prior oral policy, had not always been enforced. Rule I I (meal stops). based on an oral policy. had been flagrantly violated Rule 20 (spacing of company vehicles) and Rule 21 (rest and food stops),. both based on oral policies, had been increasingly violated Rule 46 (C.B. radios) is a new rule Continued 263 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, I reject the assertions in Respondent's brief that "the written rules were nothing new" and made "no change in working conditions." Respondent states that the Union has discussed the written work rules and have waived any objections they may have to them. This was certainly not true as of April 21 when they were issued, however, as the General Counsel's complaint alleges. According to the rec- ord, the work rules have remained in effect. Driver Sanders and Union Official Foster both testified that they had not been informed that the rules have been suspended. It is clear, therefore, that Respondent unilaterally issued and applied new terms and conditions of employment con- trary to Section 8(a)(5) and (1) of the Act. See for example N.L.R.B. v. Benne Katz. etc., d/b'h/a Williamsburg Steel Products Co., 369 U.S. 736 (1962). 39 CON CLU SIONS OF LAW Upon the basis of the foregoing, and the whole record, I find: 1. Petroleum Transportation Co. is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Teamsters and Food Processing, Local 87, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. A unit appropriate for the purposes of collective bar- gaining is: Included: All truckdrivers and mechanics em- ployed by the Employer at its facility located at 3910 Gil- more Street, Bakersfield, California; Excluded: Dispatchers, office clerical employees, guards and super- visors as defined in the Act. 4. By failing and refusing to bargain on and after April 6, 1977, with the above-named Union as the representative of the employees in the above-described bargaining unit. Respondent has engaged in and is engaging in an unfair labor practice in violation of Section 8(a)(5) and (I) of the Act. 5. By issuing written work rules on or about April 21, 1977, containing new terms and conditions of employment without consulting with the Union as the exclusive collec- tive-bargaining representative of the unit employees and by applying such rules to the unit employees Respondent vio- lated Section 8(a)(5) and (1) of the Act. 6. Respondent discharged Paul E. Byrum and Reginald S. Clampett because of their union activities. 7. By discriminatorily discharging Paul E. Byrum and Reginald Clampett, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 8. Respondent deprived employees of their statutory rights in violation of Section 8(a)(1) of the Act by interro- changing the prior oral policy. Rule 54 (discharge for specific offenses; warnings) is a nec rule with prior terminations and disciplinary meiasures being discretionary with management. W3 In Andeiron Pllumbing & Healing (Companyv 203 NLRB 18 (1973L. the Board held the employer violated Sec 8(a)(l) by posting work rules on the dat of ihe election. The Administrative Law Judge had dismissed an adldl- tional 8(a)(51 charge because the) were taken down before taking effect. and no exception Iot such action wis taken gating employees with respect to union sympathies and ac- tivities; by informing employees that it knew of union ac- tivities and who the union activists were; by threatening to close down its operation rather than go union or sign a contract; by threatening employees with termination for engaging in union activities; by requesting employees to work against the Union; by informing an employee that another employee had been reinstated to work against the Union; and by threatening to boycott a former employee and known union supporter. 9. The aforesaid labor practices affect commerce within the meaning of the Act. 10. Respondent did not engage in other conduct viola- tive of the Act as alleged. REMEDY In order to effectuate the policies of the Act, I shall rec- ommend that Respondent be ordered to cease and desist from the unfair labor practices found above and from any other invasion of its employees' rights under Section 7 of the Act; to take certain affirmative action, including rein- statement of Paul E. Byrum and Reginald S. Clampett to their former positions or. if such positions no longer exist, to substantially equivalent positions without loss of senior- ity and other rights and privileges, as well as the payment of backpay for earnings lost by them as a result of the discharges. Backpay shall be computed with interest as prescribed in F. W. Woolworth C'ompany, 90 NLRB 289 (1950), Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). Upon the basis of the above findings of fact, conclusions of law, and the entire record, I hereby issue the following recommended: ORDER 40 The Respondent, Petroleum T ransportation Co., Bakers- field, California, its officers, agents, successors, and as- signs, shall: I. Cease and desist from: (a) Discouraging membership in General Teamsters and Food Processing, Local 87, International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America, or any other labor organization, by discharging employees, or in any other manner discriminating against any employee in regard to hire, tenure, or any other term or condition of employment. (b) Interrogating employees concerning their union sympathies and activities. (c) Informing employees that it knows of union activi- ties. (d) Informing employees that it knows who union activ- ists are. (e) Informing employees that an employee has been re- 4' In Ihe escit no exceptrion are filed as provided bh Sec 102 46 of the Rules and Regulations of the National l abor Relations Board. the findings. conclusions. and recommended Order herein shall. as prosided in Sec 112 48 of the Rules and Regulations. he adopted by the Board and become its findings, conclusions, ant Order, and all objections thereto Thall be deccined malied ai for .ll purposs. 264 PETROLEUM TRANSPORTATION CO. instated to work against the Union. (f) Requesting employees to work against the above- named Union or any other labor organization. (g) Threatening to close down rather than sign a union contract. (h) Threatening employees with the loss of their jobs be- cause of union activities. (i) Threatening to boycott a former employee and known union supporter. 0() Unilaterally, without prior consultation or bargaining with the above-named Union, issuing and applying new work rules. (k) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of em- ployment with the above-named Union as the exclusive collective-bargaining representative of its employees in the following appropriate unit: Included: All truckdrivers and mechanics employed by the Employer at its facility located at 3910 Gilmore Street, Bakersfield, California; Excluded: Dispatchers, office clerical employees, guards and super- visors as defined in the Act. (I) In any other manner interfering with, restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer to Paul E. Byrum and Reginald S. Clampett 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, and make them whole in the manner prescribed in the remedy section of this Decision. (b) Upon request, bargain collectively with the above- named Union as the exclusive collective-bargaining repre- sentative of employees in the aforesaid appropriate unit found above with respect to rates of pay, wages, hours, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (c) Preserve and, upon 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 neces- sary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Bakersfield, California, place of business copies of the attached notice marked "Appendix." 41 Cop- ies of the notice on forms provided by the Regional Direc- tor of Region 31 of the Board, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 31, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 4 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the U nited States Court of Appeals Enforcing an Order of the National abhor Relation, Board " 265