Wanda Petroleum Co.

WANDA PETROLEUM COMPANY Wanda Petroleum Company and Oil, Chemical and Atomic Workers International Union , AFL-CIO. Cases 23-CA-3345 and 23-CA-3394 June 15, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On February 10, 1970, Trial Examiner David S. Davidson issued his 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 de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner also found that Respon- dent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended dismissal as to those allegations. Thereafter, the Respondent and the General Coun- sel filed exceptions to certain portions of the Trial Examiner's Decision and supporting briefs. 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 and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that Respondent, Wanda Petroleum Company, Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order as so modified. 1. Substitute the following for paragraph 2(a): "(a) Offer immediate reinstatement to Frank Pedron, M. J. Burney, T. P. Yarbrough, Leroy Stockton, and James R. Biddle to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges previously enjoyed." 363 2. Substitute the following for the first indented paragraph in the notice: WE WILL offer Frank Pedron, M. J. Burney, T. P. Yarbrough, LeRoy Stockton, and James R. Biddle immediate reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights or privileges, and make them whole for any losses they may have suffered as a result of their discharges. ' Respondent 's and the General Counsel's exceptions directed to the credibility resolutions of the Trial Examiner are without merit The Board will not overrule the Trial Examiner's resolutions as to credibility unless a clear preponderance of all relevant evidence convinces us that they are in- correct On the entire record, such a conclusion is not warranted herein Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON . Trial Examiner : Pursuant to a charge filed on May 21 , 1969, by Oil, Chemical and Atomic Workers International Union, AFL-CIO, referred to herein as the Union, the complaint in Case 23-CA-3345 issued on July 16, 1969, alleging that on or about May 8, 1969, Respondent interrogated an employee concerning the extent of union organization and discriminatori- ly discharged employees Frank Pedron , M. J. Bur- ney, T. P. Yarbrough, and Leroy Stockton. The complaint alleges further that on June 2, 1969, Respondent discriminatorily discharged Jewel O. Wagstaff. Pursuant to a further charge filed on July 22, 1969 , by the Union , the complaint in Case 23-CA-3394 issued on August 22 , 1969, alleging that on or about May 8 , 1969, Respondent inter- rogated and threatened an employee and dis- criminatorily discharged James R. Biddle. On Au- gust 25 , 1969, the Regional Director issued his order consolidating the two cases . In its answer Respondent denies the commission of any unfair labor practices. A hearing was held before me in Houston , Texas, on October 7, 8, 9, and 14 , 1969. At the close of the hearing oral argument was waived and the parties were given leave to file briefs which have been received from the General Counsel and Respondent. Upon the entire record in this case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a Texas corporation with its prin- cipal office and place of business located at Houston, Texas, where it is engaged in the purchase 183 NLRB No. 45 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and sale of liquefied petroleum products. In the course and conduct of its business operations dur- ing the 12-month periods prior to the issuance of the complaints, Respondent sold and shipped goods and materials valued in excess of $50,000 from its places of business in Texas directly to points located outside the State of Texas and during this same period Respondent purchased goods and materials valued in excess of $50,000 which were shipped directly to its places of business in Texas from points outside the State of Texas. Respon- dent's Houston, Texas, terminal, known as the Pierce Junction terminal, is the only facility in- volved in this proceeding. I find that Respondent is an employer engaged in commerce within the meaning of the Act and that assertion of jurisdic- tion herein is warranted. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Introduction Respondent purchases, transports, stores, frac- tionates, and delivers liquefied petroleum gas products' to various industrial and domestic wholesale customers throughout the United States. It has three major terminals located at Pierce Junc- tion and Hainesville, Texas, and Breaux Bridge, Louisiana, at which it operates fractionating plants and has truck and rail terminal facilities. At the Pierce Junction terminal Respondent em- ploys fractionating plant operators, pumpers who operate equipment for the transfer of gases, truckdrivers, and mechanics who maintain and repair operating equipment and motor vehicles. In 1968 Ashland Refining Company entered into an agreement to acquire the stock of Wanda Petroleum . On or about May 1, 1969, the transac- tion was completed, and Wanda became a subsid- iary of Ashland. In early 1969 a number of changes were made in the top management of Wanda. C. F. Montgomery became chief executive officer and John Holland became executive vice president. Respondent had not previously employed a person- nel director, but in February 1969, John Mays, a member of the Ashland personnel department, became manager of personnel for Wanda. ' These are propane, butane, ethane, N-butane, isobutane , commercial butane, natural gasoline, and various mixtures of these products 2 Although Mays testified that pumpers had averaged 66 hours a week working 5 days one week and 6 the next , comparisons of the pumpers' wage rates before and after the change in accordance with the formula 2. The change in wages, hours, and benefits After Mays assumed his functions with Wanda, he discovered that Respondent had no basic wage structure in terms of fixed classifications or progressions, that the wage rates paid by Respon- dent were quite low, and that its employees were regularly scheduled to work long hours. After study Mays recommended that wage schedules be set up for various classifications with fixed starting rates and a progression schedule which would take em- ployees to the top of their rate in steps over a period of 3 years. He also recommended that the scheduled hours worked by the employees be sharply reduced. Mays' recommendations were adopted, and Respondent decided to place the new wage and hour schedules in effect on May 1. Since pumpers had been working 12 hours a day, 5 days a week before May 1,2 it was determined to reduce their workweek to a 40-hour week in two stages with the first reduction to take place on May I from 60 hours to 48 hours a week. A further reduction was anticipated at an undetermined date. The hours of other employees were adjusted , along similar lines. At the same time, Respondent sought to slot em- ployees into the new wage schedules so as to keep their weekly pay within $5 of what it had been be- fore. Thus, in the case of the pumpers, Respondent computed the gross pay earned by each pumper under the former work schedule, and then assigned the employees the rate in the new wage schedule which, with a 48-hour week, would result in weekly gross pay within $5 of that figure. As a con- sequence, some employees received increases of up to $5 in their gross pay and some received slight decreases in similar amount. At that time Respondent also extended to Wanda employees fringe benefits previously available to Ashland employees. These included hospitalization insurance , life insurance, a thrift program, pen- sions, vacations, and holidays. These represented substantial improvements over the fringe benefits previously provided the Wanda employees. In implementing the reduction in the scheduled workweek of employees, Respondent contem- plated an increase in its employee complement and recognized that until additional employees could be hired and placed on their jobs, overtime work above its scheduled workweek would be required from its existing employees.' On April 23 or 24, in preparation for the changes Respondent held two meetings of assembled em- ployees at the Pierce Junction terminal to explain to the employees the changes in their hours and benefits which were about to take place. At the used by Respondent in establishing new wage rates for the pumpers sup- ports the testimony of several pumpers that they previously worked a 60- hour week Mays testified that it took 2 or 3 weeks to hire the needed employees During that period some employees may have worked 7 days a week WANDA PETROLEUM COMPANY meeting attended by the pumpers and operators, Vice President Holland and Mays addressed the employees. They described the changes in wages and hours in some detail, explaining how the new wages were determined, but did not inform employees of the rates each would receive .4 They also described the fringe benefits that were being made available to the employees. They explained that the changes would require the hiring of a substantial number of new employees and asked for the help of the em- ployees in making the transition without disruption and confusion . They sought to persuade the em- ployees that the changes were for the benefit of all the employees and were prompted by a desire for safe work practices. They also informed the pumpers that Respondent was looking forward to a further reduction to 40 hours in their workweek and assured them that they would not take less money home then than under the interim schedule. 3. The beginning of union activities Following the meeting a number of pumpers asked their foreman, "Red" Carroll, what their new hourly rates would be.5 Carroll did not know what each pumper was to be paid, but told them what maximum , minimum , and intermediate rates were for their classification. He also told some of them that he thought they would receive $2.50 an hour which was the minimum rate for the classification. Pedron, a pumper, sought to call Mays at his office in downtown Houston to learn his rate, but was un- successful in his attempts to reach Mays. In early May a group of pumpers discussed among themselves dissatisfaction stemming from the changes and one of them commented that they needed a union but did not know whom to go to. Stockton indicated that he did. On May 6, Stockton, Biddle, and Daniels, all of whom worked as pumpers on the 11 p.m. to 7 a.m. shift, visited Union Business Agent Childs at his office. Childs told them to talk to other employees and find out how many were interested. Later that day Stockton returned to Childs' office to obtain blank authoriza- tion cards. That night when Stockton reported to work around 11 p.m. he brought the cards with him and gave most of them to Biddle and Daniels, because he worked at the rail siding where he came in contact with other employees to a lesser extent than they did. That night Biddle solicited signatures from a number of employees, obtained signatures on perhaps a dozen cards, and gave them to Pedron, a pumper who worked on the day shift, after they were signed. ' According to Mays, he told the employees that they could check with him individually after the meeting to learn their rates or wait until they received their paychecks He testified that some six or eight employees came up to him after the meeting and got this information Although some employees testified that Mays did not offer to tell employees their rates at the conclusion of the meeting, I find it unnecessary to resolve this conflict, 365 The following morning, when they reported for work, Pedron and Yarbrough, pumpers on the day shift, obtained cards and also sought to solicit signatures. 4. Respondent's knowledge of union activities The evidence is in dispute as to when Respon- dent became aware of the union activities of the pumpers. Several witnesses for the General Counsel testified to incidents indicating that Respondent's supervisors became aware of the union activities before the afternoon of May 8 when the first discharges alleged to have violated the Act took place. On the other hand Respondent's supervisors denied in whole or part the employee versions of these incidents and testified that their first knowledge of the union activities came after the discharges occurred. Both Biddle and Pedron testified that on the night of May 6 and during the day on May 7 blank union authorization cards were left in sight on a desk used by the pumpers in the pump shack at the terminal . Neither made any claim that he observed supervisors looking at the cards . Biddle also testified that during the night of May 6 and early morning of May 7 he solicited employees to sign union cards in the yard area at the terminal and made no effort to conceal his activities, again con- ceding that he could not say that any supervisors saw him. Pedron testified to a more direct incident involv- ing Pumper Foreman "Red" Carroll. According to Pedron on May 7, he walked up to Carroll as Car- roll entered the pump shack, told Carroll they were taking up donations, asked him if he wanted to con- tribute, and held out a union card toward Carroll. Pedron testified that Carroll replied that he could not participate, but did not take the card. Pedron did not know whether Carroll looked at it. Stockton testified that on May 7 or 8 as he was finishing his shift at the rail siding, at or around ', a.m., Carroll came to the pump shack at the rail sid- ing.1 Stockton left the shack with his relief man, Koonce, to show him work in progress. According to Stockton there was a union pamphlet on the desk, which he found Carroll reading upon his return to the shack. Stockton testified that either Stockton or Koonce asked Carroll what he thought of the pamphlet. Carroll asked them how many em- ployees were in on it, and Stockton replied that the pump department had gone 100 percent for the Union. According to Stockton, Carroll replied that they should keep him out of it. Although apparently still employed by Respondent, Koonce was not called as a witness. as it is clear that a number of employees remained uncertain of their in- dividual rates after the meeting ' Carroll testified that he imagined every pumper questioned him about his rate ' There are shacks used by pumpers both at the terminal and the rail sid- ing 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Night Terminal Manager Jones, who was present at the terminal during a portion of Biddle's shift, Carroll, and other supervisors denied any knowledge of the union activities at the time in question. Carroll conceded that Pedron stopped him at one point and told him he was taking up contributions. However, according to Carroll, he said he had to go and did not have time to stay, and he left. He testified that he did not know what Pedron was talking about at the time and that Pedron had nothing in his hand. While Carroll ini- tially conceded only that he might have gone to the shack at the rail siding at the time mentioned by Stockton, he ultimately testified he observed Stockton tell Koonce about the work in progress and leave, without having any conversation with Carroll. Carroll denied seeing a union pamphlet there, questioning Stockton or Koonce about the Union, or having any conversation with them about the Union. Biddle, Pedron, and Stockton all had an obvious interest in the outcome of the proceeding, and the absence of testimony from Koonce to corroborate Stockton is also a factor entitled to weight in deter- mining the credibility of Stockton's testimony. Yet Pedron and Biddle impressed me in their testimony set forth above as careful in sticking to the objec- tive facts and refraining from any claim that they were observed by supervisors despite the obvious opportunities for embellishment. Although Stockton's testimony goes much further in inculpat- ing Respondent, Carroll's denials and his testimony as a whole have convinced me that as between them Stockton is to be believed. As I have noted, Carroll initially conceded only that he might have been present at the rail siding, but in denying the specific conduct attributed to him by Stockton, Carroll gave a version of tthe events which clearly placed him as present at the time described by Stockton. Moreover, on cross- examination as to his knowledge of the union activities , Carroll appeared to be an uncomfortable witness and gave some an- swers which raised considerable doubt as to his candor. Carroll conceded that he saw union cards in the shack at the rail siding a few days after May 8. When asked if these were the first cards he saw, he replied, "Yes sir, first one I ever had in my hand. First one I ever read." When asked later if he had any inkling that there was union activity, he replied, "I hadn't seen a card or any pamphlets." Carroll was also asked if he recalled a group of some em- ployees telling him that they were going to the OCAW hall or take some other action toward form- ing a union . Carroll replied, "All I recall that they said, if they didn 't raise their wages, cut their hours down, that they would see if they couldn't get-" r Yarbrough testified as to three conversations with Carroll about the Union on May 7 His testimony was denied by Carroll and indirectly by Thornton as to one of the conversations Yarbrough also testified as to a conversation with Summerlin which was denied by Summerlin Although Yarbrough impressed me as generally truthful, and Carroll did not, there Carroll's answer became inaudible, and he was asked, "They would what?" He replied, "They said they was going to see if they couldn't do it them- selves if the Company didn't do it." It is difficult not to conclude that Carroll's denials of knowledge of union activity were accompanied by mental reservations and that he was about to concede that he had heard employees discuss their intention of seeking a union but caught himself to state his testimony in a less damaging, if more meaningless, fashion. Apart from the weaknesses in Carroll's testimony which lead me to discredit his denials of knowledge of union activities, there are infirmities in the testimony of Terminal Manager Langford and Per- sonnel Manager Mays which cause me to discredit their denials of knowledge of union activities before the discharges. As will be set forth below, there are significant conflicts in their testimony as to the discharges of five employees on May 8 which raise general doubt as to their credibility. In addition, Langford, like Carroll, appeared ill at ease under cross-examination and, with respect to his knowledge of the union activities, gave testimony which leads to the conclusion opposite to that to which he testified. Although Langford testified that he had seen no union cards or pamphlets before the discharges, when asked when he first became aware that something might be going on, he testified that he went up to the pump shack at the terminal on the afternoon on May 8 as the discharged em- ployees were leaving the terminal and saw some union cards that had been thrown on the desk. Although he denied that he looked at them or picked them up to see what they were, he testified that he knew then that there was something going on because he saw the cards there. He testified that he did not think that they could have been raffle tickets, but did not pick them up to read them because he did not care that much about it; how- ever, he assumed they meant a union. This testimony becomes plausible only if Langford had prior knowledge of the union activities, contrary to his denial. Accordingly, I have credited Biddle, Pedron, and Stockton in their testimony set forth above, I have discredited Carroll's denial of Stockton's and Pedron's testimony, and I have discredited Carroll, Langford, and Mays in their denials of knowledge of the union activities before the discharges oc- curred. Although additional testimony was offered by the General Counsel to show Respondent's knowledge, I have not relied on that testimony in reaching this conclusion.' was little in the testimony or demeanor of Summerlin or Thornton to cause me to reject their testimony I find it unnecessary to the result herein to resolve the credibility issues raised by ttheir testimony One additional incident was described by Wagstaff, a truckdnver, to establish Respondent 's knowledge generally and specifically as to his ac- WANDA PETROLEUM COMPANY 5. Mays' visit to the pump shack on May 8 On the morning of May 8 Mays, whose office is elsewhere, came to the terminal to talk with em- ployees. According to Mays he did this because in his experience when there are changes in working conditions, employees have a feeling that their em- ployer is taking advantage of them and he wanted to see how changes were working. Mays testified that he had heard through supervisory personnel from all over Respondent's system that employees were upset and concerned about their hourly rates "but not to a point of being critical." According to Langford 2 or 3 days earlier, he had reported to Mays that the employees were unhappy and that it was necessary for Mays to explain things to them to see if he could quiet them down.' After first talking with some of the management and office personnel, Mays went to the garage where he spoke with mechanics and tiremen. Ac- cording to Mays, the employees in the garage seemed dubious about the new system but not un- happy, and after approximately half an hour he left the garage and went to the pump shack. He arrived there sometime between 9 and 10 a.m. and remained there for the rest of the morning. Pedron and Yarbrough were the two pumpers on duty at the time. They continued to perform their duties, going in and out of the pump shack a number of times during the morning. While in the pump shack, sometimes separately and sometimes together, they spoke with Mays about the recent changes. Although there are some variations in their testimony, particularly as to the intensity of the discussion, Pedron, Yarbrough, and Mays were in general agreement as to the subject matter of their discussions. Mays explained the changes in hours and benefits to Yarbrough, who had been on vacation at the time of the April 24 meeting. Both Pedron and Yar- brough complained about having to come to work 6 days a week rather than 5 as before the changes, and questioned Mays' claim that they had received wage increases because their take-home pay had not increased. Mays tried to explain that the reduc- tion in hours without a loss of pay amounted to an tivity Wagstaff testified that on May 7 at 7 or 8 in the evening he signed a union authorization card at the request of a pumper whom he first identified as Bettis, and then as Biddle, while Night Manager Jones watched over his shoulder Jones denied that he watched Wagstaff sign the card , and Biddle did not mention this incident in his testimony Company records show that Wagstaff was not at the terminal at the time at which he placed this incident, and Biddle was not there before 10 45 p in on any night during the period in question It is no more likely that the incident oc- curred on May 6 otherwise as described by Wagstaff, for the record shows that the cards were not brought to the terminal until around I I p m on May 6 1 do not credit Wagstaff as to this incident " According to Langford the report was not based on the unhappiness of specific employees but on general grumbling ° It appears that they also expressed concern that they would suffer further when their workweek was reduced to 40 hours Mays testified that he could not recall whether he told them their rates would be increased again at that time but that he assured them their take-home pay would not suffer 367 increase and that they had also received a substan- tial increase in fringe benefits, but Pedron and Yar- brough remained unconvinced.' They also com- plained because the top rate established for pumpers was below that established for operators in the fractionating plant although the starting rate for both classifications was the same. Mays explained that the operators' job was more difficult and responsible. Yarbrough complained that the rates paid pumpers by Respondent were below other area rates.10 During the course of the morning Burney entered the pump shack on two occasions. On the first of these occasions he joined in the discussion in progress concerning the pay raise and fringe benefits. Burney complained specifically about being required to clock out for an hour lunch period while the pumpers took only half an hour. According to Mays, Burney was not as critical as Pedron and Yarbrough but was bitter and was "way out of line in getting involved." Mays testified that Burney also complained that he could make more money working elsewhere. Later in the morning Burney returned to the pump shack following an exchange with Garage Su- pervisor Thornton over the return of a gear puller which Burney had borrowed from the garage a few days before and had failed to return. Burney entered the pump shack to question Mays about the availability of tools. Carroll, under whose supervision he had been placed a few days earlier, was present. As Burney started to speak to Mays, Carroll told Burney that he had already told him to come to him if he needed anything. Burney then told Carroll to be quiet because he wanted to talk to Mays directly about it." Carroll said nothing further, and Burney asked Mays why tools that were necessary for his work were so hard to obtain. Mays said that the tools should not be hard to ob- tain and that he would check into it. Mays left the pump shack about noon and went to lunch with Terminal Manager Langford and Thornton. After lunch, between 1:30 and 2 p.m. he returned to the pump shack and spoke further with Yarbrough and Pedron. The discussion was basi- cally repetitious of what had been said earlier that 10 According to Mays, Yarbrough also said he could get a better rate as a laborer nearby, and said he would not work at the rate Respondent was paying , but did not say he was quitting " Burney conceded that he became a little "rash" and that he believed he told Carroll "Just hush and let me say what I am going to say " He did not think he used profanity but might have According to Carroll, Burney said, "Mr Carroll I am not trying to go over your head " He testified that he and Burney were both a bit agitated Carroll did not consider that Bur- ney had insulted him , but it appeared to Carroll that Burney was going over his head According to Mays, Burney butted in on a conversation "which had a particular light because I was having senous thoughts and so forth," and when Carroll attempted to answer Burney 's question, Burney told Carroll "Keep your damned mouth shut I am talking to Mr Mays," and pointed his finger at Carroll when he said this Although I find, as Burney conceded, that he told Carroll to be quiet, his testimony that he believed he did not use profanity is corroborated by Carroll's version , and I credit Burney's version over that of Mays' 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD morning. Mays left after 15 minutes to half an hour. At some point after lunch Mays also spoke to the employees in the fractionating plant, finding no particular unhappiness there. Around the time that Mays left the pump shack, Yarbrough called Stockton at home and suggested to him that if he came to the terminal he might be able to talk to Mays about his rate and other mat- ters. Stockton came to the plant and went to the pump shack. 6. The May 8 terminations Shortly before 3 p.m., the scheduled time for the end of the day shift, Langford told Carroll to notify Yarbrough, Pedron, and Burney that they were ter- minated. Carroll gave notice of the terminations to Pedron and Yarbrough in the pump shack in the presence of Stockton. They left the pump shack to go to Langford's office to inquire about the ter- minations. After they left, Carroll encountered Bur- ney and also told him that he had been terminated. Pedron, Yarbrough, and Stockton, together with Farris and Watson, also pumpers, went to Lang- ford's office, where Safety Supervisor Thomas was also present. Yarbrough and Pedron asked Lang- ford why they were terminated. Langford replied that Respondent did not like their attitude.12 Stockton then spoke up. According to him, he said, "If you are going to terminate them for this, you will have to terminate me, too," and Langford said, "O.K."13 According to Stockton there was no further mention of his termination. Ashton Thomas, Respondent's supervisor, who was present in Langford's office, testified that Stockton said , "If they are fired, I quit." According to Thomas, Stockton then suggested that all the pumpers leave, but Watson said they wanted to talk it over. Thomas testified that Farris and Watson asked if they were fired, and Langford told them they still had jobs if they wanted to work. According to Langford, after he told Pedron and Yarbrough the reason for their discharges, Pedron started to leave, and Stockton said , " I am going too," to which Langford replied, "All right, good- bye." Langford testified that as Stockton started to leave, Stockton asked one of the others if he was going, and Watson then asked Langford if he still had a job. Langford told him that he did and that Respondent wanted him to stay at work. Langford testified that Stockton did not say he was quitting but only that he was going, which he understood to mean Stockton was quitting. 12 Stockton, Pedron, and Yarbrough so testified Thomas and Langford testified that Langford replied because they were dissatisfied and their at- titude 13 Pedron testified similarly Yarbrough did not recall the exchange between Stockton and Langford '4 Carroll testified that Langford had told him earlier that Stockton had quit Langford testified that he told Carroll what had happened and that they "would write him off too " According to Langford, if Stockton had come to him later and said there was a misunderstanding, he would have The employees left Langford's office, and Pedron and Yarbrough turned in some gear that had been issued to them. They left the terminal with Stockton. After stopping at a nearby cafe for cof- fee, they called Union Business Agent Childs, and they went to his office. Burney also arrived there at the same time and informed the others he had been fired. After some discussion with Childs they all returned to the terminal where Childs sought to talk to Langford. Langford, however, said he had nothing to say to Childs, referred him to Mays, and asked them to leave. They left. Later that afternoon or evening, Stockton returned to the pump shack and told Carroll he would be there for his regular shift that evening. According to Stockton, Carroll told him he had been terminated or that he had quit. He testified that he told Carroll to "have it your way." Carroll testified that Stockton told him he had changed his mind and would be out on a regular shift that night. According to Carroll he told Stockton he could not work because he had quit, whereupon Stockton as- serted that Carroll was terminating him, and Carroll replied that he had terminated himself. 14 That evening after hearing of the discharges from Yarbrough, Daniels, another pumper, telephoned Carroll. Carroll asked Daniels to report to work at 3 a.m. rather than at 11 p.m. as scheduled, and Daniels agreed. Daniels asked about Biddle who normally worked the same shift as Daniels. Carroll replied that Biddle had also been discharged. Daniels then informed Biddle of his conversation with Carroll. Biddle telephoned Carroll at home, and Carroll confirmed the report. Biddle asked Carroll the reason for his discharge. According to Biddle, Carroll told him he was fired because of his dissatisfaction and complaints. According to Car- roll, he told Biddle he was fired because his work was dropping off, and Carroll said nothing about dissatisfaction or complaints. 7. The alleged interrogation by Thomas During the early morning of May 9, after he re- ported for work, Daniels had a conversation with Safety Supervisor Ashton Thomas. Thomas asked Daniels if he had signed "one of them things." Con- struing this as a reference to the union cards, Daniels replied that he was not going to lie. He told Thomas he had signed a card and explained why. Thomas told Daniels he could see his point and the conversation ended.15 considered putting him back to work 11 Daniels so testified Thomas initially testified that he did not think he had any discussion with Daniels concerning the Union, but then testified that Daniels volunteered to him he signed a card " out of the blue" after Thomas had asked him generally how things were going According to Thomas, he merely told Daniels that signing a card was Daniels' business and he could not say one way or the other I have credited Daniels , who was still employed by Respondent at the time of the hearing, over Thomas whose testimony impressed me generally as unreliable WANDA PETROLEUM COMPANY 369 8. The discharge of Wagstaff Jewel O. Wagstaff started to work for Respon- dent as a truckdriver on November 21, 1968. Previ- ously, he had worked for Robertson Tank Lines as a truckdriver and had retired in September 1967 because of his health and his nerves. When he ap- plied for employment with Respondent, he dis- closed on his employment application that he had had ulcers and wore an artificial limb because of the• amputation of his left leg 6 inches below the knee. However, he did not disclose that he had retired from Robertson for medical reasons but stated instead as the reason he left that job, "tired highway."18 Langford, who hired him, was aware of the amputation and that Motor Carrier Safety Regulations disqualified Wagstaff for that reason, but told Wagstaff that if he passed the required physical examination he could go to work. Wagstaff took the preemployment examination at an industrial clinic, filling out a medical history form for the doctor at the time. Although Wagstaff disclosed his amputation and his prior hospitaliza- tion for ulcers, he conceded when shown the form on cross-examination that he did not disclose that he had ever had heart trouble, diabetes, or a ner- vous condition, although these ailments had led to his retirement from Robertson and the form called for their disclosure. He also omitted mention of the causes of his prior hospitalizations other than ul- cers. He conceded that he concealed some of his medical history at the time of that examination. His ailments were apparently not detected by the ex- amining physician and, despite his amputation, Wagstaff was given a certificate indicating that he was qualified to drive subject only to the restriction that he wear glasses. Wagstaff then began to drive for Respondent. Although Wagstaff testified that Night Terminal Manger Jones observed him signing a union card on the evening of May 7, I have not credited that testimony. Wagstaff also testified that he dis- tributed blank authorization cards to a number of other drivers, but there is no indication that this ac- tivity was known to Respondent. On May 25, Ashton Thomas, Respondent's safety supervisor, followed Wagstaff's truck and stopped him to warn him that he had observed Wagstaff violating traffic regulations. According to Wagstaff, at that time he noticed that Thomas had two or three union cards in his shirt pocket and asked Thomas, "What did you stop me for, to sign one of your union cards?" According to Wagstaff, Thomas said no, and Wagstaff then asked Thomas to sign one of his cards, producing them at the time. Wag- staff testified that Thomas then got in his car and left. According to Thomas, he had no union cards in his pocket when he stopped Wagstaff, and he de- nied Wagstaff's version of their conversation. He testified that when he started to leave after discussing Wagstaff's infractions with him, Wagstaff said to him, "I am not signing any union card if that is what you are after," and he replied that what Wagstaff signed was none of his business but he was simply interested in Wagstaff's driving safety. Pursuant to established procedures, Wagstaff was required to speak with Terminal Manager Langford before he could drive again after being stopped by Thomas. After discussing his infractions, Langford told him to return to work and be careful. According to Thomas, soon after he stopped Wagstaff he learned of Wagstaff's amputation from another driver." Thomas testified that he then checked Wagstaff's employment application to see if he disclosed the amputation on his application. According to Thomas, he discovered that Wagstaff had disclosed the amputation. He testified that after seeing where Wagstaff had previously worked, he wondered why Wagstaff had left Robertson, but did not check with Robertson to find out, and called Mays' office to ask if Mays was aware of the ampu- tation. According to Mays, when Thomas told him of Wagstaff's amputation , he checked Wagstaff's per- sonnel file and "turned green when I saw it because it indicated heart condition, diabetes, nervous con- dition, amputation of ... one leg just below the knee." Mays believed that Wagstaff could not qualify to drive under Department of Transporta- tion rules, but decided that it would be best to have Wagstaff take another physical examination to veri- fy that these conditions existed. The testimony as to what ensued is in some dispute as to detail but not as to its basic outline. On or about May 29 Wagstaff was relieved of his driving duties and told he would have to take another physical examination. Wagstaff took the examination, this time disclosing his complete medical history. He failed to pass the examination. Mays then told him Respondent could no longer employ him. Wagstaff asked to be assigned as a pumper loading and unloading trucks, but Mays told him that the pumpers were required to do a lot of climbing and that, because of the hazardous na- ture of materials handled, his physical disabilities would bar him from that job as well.18 On June 15, Wagstaff obtained another job as a driver hauling gasoline, diesel fuel, and other 18 On direct examination , Wagstaff testified that he indicated he had a nervous condition on his application , but conceded when shown his appli- cation on cross-examination that he had not revealed it Ir According to Thomas he had previously noticed that Wagstaff limped, but had not realized that his limp was due to the use of an artificial leg " According to Wagstaff, Langford sent him to see Mays before he took the physical examination , and when he went to Mays' office , Mays showed him a copy of the letter Wagstaffs doctor had sent to Robertson at the time of his retirement Wagstaff also testified that Mays gave him the name of a specific doctor to visit for his new physical examination According to Langford he told Wagstaff to return to the industrial clinic for another ex- amination without naming a specific doctor and without sending him first to see Mays According to Mays, he did not see Wagstaff until after Wag- staff had taken the examination , he did not send Wagstaff to a specific doc- tor, and he did not show Wagstaff the letter which had been sent to Robert- son 370 DECISIONS OF NATIONAL chemicals. He was required to take a physical ex- amination for this job, and passed it, but as in the case of his initial examination for Respondent, on his medical history form Wagstaff revealed only his ulcers and his amputation. He conceded that he did not believe he would have been issued a certificate to drive if he had made a full disclosure of his medi- cal history. B. Concluding Findings 1. The May 8 terminations The General Counsel contends that Pedron, Yar- brough, Burney, Stockton, and Biddle were discharged in order to undermine the incipient union organizational campaign. The General Coun- sel contends in the alternative that they were discharged for having engaged in protected con- certed activity in voicing their dissatisfaction with the changes in their hours and pay. Respondent contends that Pedron and Yarbrough were discharged for their attitude displayed in their discussions with Mays which Respondent viewed as likely to affect the safe and proper handling of its products by them. Respondent contends further that Burney was discharged for insubordination, that Biddle was discharged because of inferior work, and that Stockton resigned and was not discharged.1e Respondent further contends that the complaints voiced by the employees did not amount to protected concerted activity. Mays and Langford both testified to the sequence of events, as well as the considerations, which led to the discharges. According to Mays, after his con- versations with Pedron, Yarbrough, and Burney on the morning of May 8, he went to lunch with Lang- ford 'and Thornton, at which time he discussed his experiences of the morning with them and told them, "I was a little bit concerned about the at- titude that they had." According to Mays, Thorn- ton said that Biddle was in a similar position, and he was discussed with the others. He testified that at the conclusion of the lunch he decided that if he could not work out anything that afternoon he would recommend that they be discharged, and he called Respondent's president at that time to make the recommendation.20 Following this conversation, Mays spoke further with Yarbrough and Biddle, and, according to Mays, he found no reason to change his recommendation as to them. He testified that he again spoke to Montgomery by telephone and repeated his recommendation that the four em- ployees be discharged with which Montgomery agreed. According to Mays, he then told Langford to terminate the four employees and left. "The General Counsel disputes the contention that Stockton resigned, and assails the reasons advanced for the discharges of the others as pre- texts :" Although Mays' testimony is not entirely clear, it appears that the op- portunity to work something out applied only to Pedron and Yarbrough _' Langford also testified that Mays had earlier told him he was going to LABOR RELATIONS BOARD Langford also testified that the discharges were discussed at lunch. However, unlike Mays, he testified that Montgomery was consulted only as to the discharges of Pedron, Yarbrough, and Burney, and that he, Langford, independently made the decision to discharge Biddle. Langford also differed with Mays as to the transmission of the final in- struction from Montgomery, testifying that he be- lieved he received the instruction to discharge Pedron, Yarbrough, and Burney from Mont- gomery's secretary who told him to terminate them without telling him why.21 Although Thornton was identified by Mays as present at the lunchtime discussion, he was not questioned about it. I find the discrepancies in their testimony as to these events of considerable significance, particu- larly in the light of the further discrepancies in their testimony concerning these discharges set forth below, and conclude that their testimony as to how and why they decided upon the discharges cannot be credited. a. Pedron and Yarbrough Pedron had been employed by Respondent since November 1965. Until January 1969, he was a truckdriver, and at that time he became a pumper. Yarbrough had been previously employed by Respondent for 3 years ending in 1965. In 1967 he returned as a truckdriver and in April 1968 became a pumper. Until their discharges, both had been considered good employees. Mays testified that his recommendation to discharge Pedron and Yarbrough was based on the fact that they were absolutely bitter and had an an- tagonistic attitude. He testified that in his ex- perience he had never encountered such a bitter and cynical attitude toward plans that the Company was trying to initiate to help the employees and the Company. According to Mays, at lunchtime he was hopeful that in further discussion he could persuade them that Respondent had not taken advantage of them and that even if they had not received an in- crease in take-home pay, their benefits had other- wise improved. However, according to Mays, in his further discussion with them, their attitude remained unchanged, and he concluded that they should be discharged because of it.22 Langford testified that at lunch Mays told him he had never seen anyone as bitter to the Company and things in general as Pedron and Yarbrough. According to Langford, he told Mays that it looked like he would have to let them go. Both Mays and Langford testified that they were concerned that Pedron and Yarbrough might be so bitter that they recommend their discharges and he joined in the recommendation ss Mays testified that in his further talks with Pedron and Yarbrough, he did not indicate that their jobs were in jeopardy, because he felt that if he did, they would say that they would straighten out without any real change in attitude WANDA PETROLEUM COMPANY would cause an accident or contamination of the products. However, both disclaimed any belief that Pedron or Yarbrough would do so intentionally, or that they were responsible for past contamination. 23 I am not persuaded by their testimony and find otherwise. As I have found, on the morning of May 7 or 8, if not before, Carroll became aware of the union activities among the pumpers, questioning Stockton and Koonce as to the number of em- ployees involved in the union activities and learning that the pumpers were solidly for the Union. I have also found that Langford was aware of the union activities before the discharges took place. Whether Mays knew of the union activity before coming to the terminal or discovered it later in conversation with Langford at the terminal is unclear, but it is beyond belief that Mays did not learn of it in his discussions with Langford concerning the attitude of the employees. When Mays came to the terminal he found no ex- traordinary unhappiness among other employees, but in his discussions in the pump shack he found Pedron and Yarbrough steadfast in their dissatisfac- tion with the changes in their hours and benefits and impossible to convince that they were better off as a result of the changes. Thus, Mays' inter- views during the day on May 8 disclosed that the most serious dissatisfaction was among' the pumpers. Certainly to a man of his experience the source of greatest dissatisfaction was identifiable with the source of greatest pressure for union or- ganization . Whether or not he had specific knowledge of the individual union activities of Pedron and Yarbrough, their persistence in stating their dissatisfactions to him labeled them as em- ployees likely to be equally persistent in efforts to do something about their dissatisfactions. These discharges were not treated as ordinary discharges. Although Mays conceded that em- ployees were normally warned before being discharged, no warning was given them. Although Mays and Langford had the power to effect the discharges without approval from higher authority, Mays found it necessary to discuss these discharges with Respondent's principal officer before making the decision final and to discuss them as part of "picture" including Burney and Biddle, as to whom varying reasons for discharge were asserted. The discharges occurred precipitously, only 2 days after the union activities started at the plant. The discharges came at a time when Respondent was seeking to expand its work force and was already short of pumpers. Both Pedron and Yarbrough were considered to be good employees, and there was no cause to believe that either was responsible for Respondent's operating problems. Mays and Langford testified that they feared that the dissatisfaction of Pedron and Yarbrough would g'' Considerable evidence was adduced to show that during the spring of 1969, Respondent discovered grossly excessive contamination of its inven- tory in storage Although Respondent believed that much of the con- tamination was due to human error in pumping, it was unable to determine 371 lead to possible safety and contamination problems. But Pedron and Yarbrough were aware of the dan- gerous nature of the materials they handled, and as the employees at the scene during the pumping operations, they would be most likely to suffer directly from any accident caused by inattention or carelessness. Moreover, Mays' choice of time and place to carry on an extended discussion, which ac- cording to his testimony was often heated, can only lead to the conclusion that considerations that ac- cidents and contamination might result from dissatisfaction of Pedron and Yarbrough were far from Mays' mind during the morning and afternoon of May 8. For Mays' own presence and his discus- sions in the pump shack were as likely to cause in- attention to their work as any internal unhappiness. As Mays testified, the reports of dissatisfaction to him indicated that it was general throughout Respondent's system, and from his experience he knew that any substantial changes in working con- ditions were likely to be greeted with skepticism and hostility. Such attitudes require experience under the changes for their dissipation. Here no chance was given Pedron and Yarbrough to gain that experience by which to temper their initial reactions. Further no opportunity was taken to determine whether their attitudes had any impact on their work. It is axiomatic that an employer is free to discharge an employee for any cause or no cause at all as long as the discharge is not caused by union activity. But when the cause advanced is attitude, when the objectionable attitude is dissatisfaction with wages and working conditions, and when the dissatisfaction has already manifested itself in union activity known to Respondent, attitude becomes no more than a euphemism for union activity. Whether Pedron and Yarbrough were reasonable or un- reasonable in their response to the changes in- stituted by Respondent, it was their right to seek union representation if they so desired. I conclude that it was the fact that the intensity of their response identified them as likely to persist in that effort which caused the decision to terminate them. Accordingly, I find that their discharges violated Section 8(a)(3) and (1) of the Act. b. Burney Burney started to work for Respondent in March 1969 as a mechanic repairing pumping and other equipment. He worked under the supervision of Garage Foreman Thornton until a few days before his discharge, when he was placed under Carroll's supervision. About a month after his hire, Mays received reports concerning an aggravated assault charge to which Burney had pleaded guilty. Mays decided that Burney might be a risk and instructed the cause of the contamination other than some caused by physical deteri- oration of a well The contamination caused Respondent substantial ex- traordinary expense 427-258 O-LT - 74 - 25 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Langford to discharge him. Upon being discharged, Burney contacted Mays and offered to give him references to explain the circumstances of the charges. He also spoke to Respondent's terminal superintendent, Davis, who told Burney he would get the matter straightened out. Through the inter- cession of Davis, Burney was reinstated after a day or two. Mays testified that Burney was discharged again on May 8 for insubordination. According to Mays if it had been a different situation, he would have fired Burney on the spot when Burney told Carroll to keep his "damned" mouth shut, but decided that "as long as you keep these things between two peo- ple, . . . you are better off," so he said nothing at the time because there were others present. He testified that he did not want to make a scene. Ac- cording to Mays, "That was two cases of insubor- dination," with reference to that incident and Bur- ney's earlier interruption of his discussion with the pumpers. However, he also testified that Burney's joining in tthe complaints with Pedron and Yar- brough was irritating but not a factor which cul- minated in his discharge. Mays conceded that he could have instructed Langford to terminate Bur- ney without consulting Montgomery because it was a clear-cut case, but it just happened to be in the "picture." Langford testified that at the lunchtime discus- sion Burney's name entered into the conversation because he was also bitter. Langford gave no other reason for the decision to discharge Burney. According to Carroll, Burney was a slow worker and his work did not hold up well. Carroll testified that he had not recommended Burney's discharge but would have done so in time. He testified that Langford told him that Burney was discharged because of his inferior workmanship and everyone knew that. When asked if the discharge of Burney had anything to do with the incident on May 8 in which Burney said something about going over Car- roll's head, Carroll replied that the incident had nothing to do with it, and would have had nothing to do with his recommendation to terminate Bur- ney. I conclude that these varying explanations do not reveal the true cause of Burney's discharge. Although Mays testified that Burney was discharged for insubordination, his testimony in that regard is not supported by that of Carroll as to either the circumstances of the alleged insubordina- tion or the reasons for the discharge, and I have not credited Mays' version of the alleged triggering in- cident. Moreover, Mays' testimony otherwise with respect to Burney's interruptions that morning ap- peared patently strained to support a desired result. Although Mays disclaimed that Burney's earlier visit to the pump shack was a cause of his discharge, he earlier characterized Burney as hav- ing engaged in two cases of insubordination, with obvious reference to the first visit as one of them. Similarly he described Burney's second visit as im- proper because it interrupted "serious thoughts" he was having. Unlike Mays, Carroll saw nothing in the incident in the pump shack which would have warranted Burney's discharge, and he testified that it had nothing to do with Burney's discharge which was caused, according to him, by inferior workmanship, which everyone knew.24 While .it may be argued that Carroll might not have known the reason for Burney's discharge as he did not participate in the decision to discharge him, it is of considerable sig- nificance that as the supervisor to whom Burney was allegedly insubordinate, Carroll saw no basis for discipline in the incident. Finally, Langford, who unlike Carroll par- ticipated in the discussions which led to Burney's discharge, mentioned neither insubordination nor inferior workmanship in his testimony, but only Burney's bitterness that morning in the pump shack as the reason his name entered the noontime discussions out of which the discharges grew. Faced with the unreliability of Mays' testimony and the discrepancies in the testimony of Mays, Carroll, and Langford, the inference is compelling that the true reason for Burney's discharge was not disclosed by them in their testimony.25 There is evidence that Burney signed a union card on May 7, but there is no evidence that this was known to Respondent or that he engaged in any other union activity. Yet like Pedron and Yar- brough, during the discussion in the pump shack on May 8 Burney had expressed his dissatisfaction, and while, according to Mays, he was not as critical as Pedron and Yarbrough, he was also "bitter." Thus, like them, he had identified himself as a malcontent with little inhibition against pursuing his com- plaints. As Burney's discharge was decided upon at the same time as the others, after consultation with Respondent's president, and the reasons given for the discharge were clearly pretextual, the conclu- sion follows that Burney was discharged, like Pedron and Yarbrough, because his "bitterness" z' All of Burney's work was performed in Carroll's department before and after the changes in his supervision Carroll testified that Burney was a slow worker and that his work did not hold up too well Thornton was not asked about the quality of Burney's work However, he testified that Bur- ney was placed under Carroll's supervision because Carroll was not getting enough cooperation from Burney and Burney was putting in more overtime than believed necessary Neither Carroll nor Thornton recommended Bur- ney's discharge, although Carroll testified that he was going to do so Mays made no mention of Burney 's alleged inferior workmanship but testified in connection with Burney 's earlier reinstatement that Burney did an- adequate although not outstanding job _' While there is some evidence , set forth in in 24, above, to show that Respondent was not satisfied with Burney's work , it appears that he had been transferred to Carroll as a result of the dissatisfaction only shortly be- fore his discharge Absent any mention of his work performance as a reason for his discharge by Mays or Langford, and absent any recommen- dation from , or consultation with, Carroll , Burney's new supervisor, I con. clude that the reasons which caused the transfer of his supervision were not the reasons for his precipitate discharge so soon after his transfer WANDA PETROLEUM COMPANY identified him as a likely supporter of the union or- ganizing effort. Accordingly, I find that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Burney. c. Biddle Biddle was employed by Respondent in February 1968 as a pumper. Although Biddle denied generally that he had ever been told he had made a mistake in loading or unloading a truck, there is un- contradicted testimony that one night in March 1969, Biddle had failed to inform the head pumper of three consecutive phone calls for him, resulting in considerable delay in transmission of instructions from Goode, the head of Respondent's pipeline operations, to terminate pumping into the pipeline. The delay had potentially serious consequences which did not, however, ensue.26 On the following morning Goode told Carroll what had happened. Carroll said he would talk to Biddle, and Goode did nothing further about it. Carroll questioned Biddle about the incident and instructed him in the future to call the head pumper to the phone immediately if the pipeline department called. Carroll did not talk to anyone else about the incident. Mays testified that at lunch on May 8, after he expressed concern over the attitude of Pedron and Yarbrough, Thornton said that Biddle was in a similar position and they discussed Biddle at length in conjunction with the two pumpers. Mays testified that Langford's position at lunch was to terminate Biddle "Based on the fact that the attitude of the boys was such that we had to. He felt, his past ex- perience with Biddle, problems with pipeline super- visors getting movements of oil in and out of the terminal and to the customers, that he fell into the same category and would have to be classed as one of those ... who was dissatisfied and unhappy: just a poor attitude toward the work and the new poli- cies." Mays also testified that in his telephone conver- sation with Montgomery he mentioned, "Of course Biddle based on our conversation Mr. Langford I think had had some problems with him. He had been somewhat tardy and given the pipeline su- perintendent problems so far as being available to turn valves at the proper times, and that creates a problem so he would have to get out. So he said he was not dependable and certainly would fit in the group of attitude that Pedron and Yarbrough." According to Langford he decided to terminate Biddle because "the boy was kinda having too much car trouble and his work was very unsatisfac- tory, besides that he was not happy on the job so I decided it was time for him to go too." Langford testified that at previous times Biddle had failed to "In addition to its other facilities at Pierce Junction , Respondent operates a pipeline to plants along the Houston ship channels through which it makes deliveries to its major customers located there 373 report for work, and called in that he had car trou- ble and was unable to report. With respect to the quality of Biddle's work, Langford testified that Biddle was "a little on the lazy side," was slow in loading and unloading trucks, and left compressors attached to them too long, causing the compressors to overheat. Langford was asked why he decided on May 8 to terminate Biddle, and replied "Well, from previous experiences we had with him and just that and the one that Mr. Carroll testified to."27 He was asked if he was aware of both of those circum- stances and replied, "Yes, sir. I found out later on," explaining further that he was aware of them before he terminated Biddle. Later Langford testified that he decided to discharge Biddle on May 8, because "Biddle was more or less a build up to the time when he was dissatisfied with the job." Asked what caused him to conclude this, Langford replied, "Well the case Mr. Carroll testified to, the boys on the pipeline was having trouble getting him to get over to pumping. That was one of the main deci- sions. And then, him being dissatisfied, and he would drive the truck with the hose hooked up or anything could happen." When asked if anything had happened on May 8, Langford replied, "No, sir, other than his being dissatisfied." Carroll testified that on May 8 he was told that Biddle was discharged because his work was very inferior. Carroll had not recommended discharge but testified that he would have fired Biddle himself if he had anyone to take his place. Carroll testified that he had spoken to Biddle about his work previ- ously, once after Biddle failed to call the head pumper to the telephone in March, as described above, and other times about slowing down on loading and unloading trucks. Carroll expressed the opinion that the telephone incident was not the main basis for the discharge. As set forth above, Biddle was one of the early supporters of the Union and had solicited other em- ployees to sign union cards on the first night that they were brought to the terminal. While there is no evidence that Biddle was observed by super- visors in this activity, the testimony of Mays and Langford leaves no doubt that they were aware that Biddle was among the employees who were dissatisfied with the recent changes at the terminal. Like the other three employees, Biddle was discharged precipitously on May 8 without any prior warning. The reasons advanced for his discharge by Mays and Langford relate both to his work performance and attitude which they tended to merge in their testimony. Although Langford claimed sole responsibility for the decision to discharge Biddle, Mays testified that he made the recommendation to discharge Biddle to Mont- gomery along with his recommendations as to the others. " The reference to Carroll's testimony was to the incident in March con- cerning Biddle 's failure to call the head pumper to the telephone when Goode called 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Assuming that Biddle's work performance left something to be desired, examination of their testimony persuades me that Biddle was drawn into consideration at this time and selected for discharge because his attitude was considered similar to that of Yarbrough and Pedron and not because of deficiencies in his work. Although Mays in his testimony generalized the March incident into "problems" with the pipeline superintendent moving shipments in and out of the terminal, and Langford testified that the pipeline incident was one of the main reasons for the discharge, there was only a single instance described when Goode had a problem with Biddle. That incident occurred 2 months earlier, neither Goode nor Carroll re- ported it to Langford or a higher supervisor, and Carroll did not believe this was a main reason for Biddle 's discharge. Although Mays testified that Langford mentioned tardiness as one of the factors they considered, and Langford testified that Biddle missed work because of car trouble, the only timecards of Biddle introduced at the hearing,28 which related to the week immediately preceding his discharge, showed no tardiness or absenteeism during that period, and there was no other evidence to show that Biddle had been late or excessively ab- sent from work. Although Langford testified that Biddle's slowness and other deficiences in loading and unloading trucks were discussed as a reason for his discharge, Mays did not mention these factors, and significantly Carroll, who testified that Biddle's work was inferior, had not recommended his discharge because he had no one else to take his place. Thus despite the various factors mentioned other than Biddle's attitude, there are numerous discrepancies in the testimony concerning them, and until May 8 Respondent appeared reconciled to his employment despite the fact that if these reasons existed, all were present for some time be- fore. According to Mays, on May 8 in his lunchtime discussion Biddle was brought in to discussion when Thornton said that he was in a similar position to Pedron and Yarbrough, and that Langford felt that Biddle "fell into the same category and would have to be classed as one of those ... who was dissatisfied and unhappy." When Langford was asked what had happened on May 8 when he de- cided Biddle should be discharged, Langford replied that "Biddle was more or less a build up to the time when he was dissatisfied with the job," and that nothing had happened on May 8 "other than his being dissatisfied." In the light of the above, and the fact that Lang- ford and Mays could not even agree on who made the decision to discharge Biddle, I conclude that _" These cards were apparently introduced to refute Wagstaff's testimony as to the signing of his card S° Texas Natural Gasoline Corporation, 116 NLRB 405 "See William Kahr and Leon Mohill, dlb/a Hamilton News Co , 129 NLRB 770, Franke's Inc , 142 NLRB 551 In deciding to consider the ad- mission only as part of the evidence hearing on this issue, I note that unlike any past derelictions on Biddle 's part had been tolerated for some time and were raised in justifica- tion for his discharge after the fact . I do not credit this testimony and find that Biddle was discharged because Respondent considered Biddle as sharing the attitude of Pedron and Yarbrough. Ac- cordingly , I find that Biddle was discharged for the same reason as Pedron and Yarbrough , and that his discharge violated Section 8 (a)(3) and (1) of the Act. d. Stockton Stockton was most recently employed by Respondent as a pumper beginning in February 1969. He had previously worked for Respondent as a driver about 3 years before for a 1-year period. As set forth above, Stockton's employment ended after his visit to Langford's office on the afternoon of May 8 with Pedron and Yarbrough, and the cir- cumstances as to the termination of his employ- ment are in dispute. In support of his contention that Stockton was discharged, counsel for the General Counsel points to paragraph VIII of Respondent's answer which states: Respondent admits only that the employees listed in paragraph 8 of the Complaint were terminated or laid off on or about the dates set opposite their respective names. Paragraph 8 of the complaint alleges, among other things, that on or about May 8, 1969, Respondent discharged Leroy Stockton. Paragraph VIII of Respondent's answer is an ad- mission against interest as to the fact that Stockton was discharged.29 However, as evidence was received as to the circumstances of Stockton's al- leged discharge and the issue was fully litigated, I do not view the admission as conclusive but con- sider it as one of the elements to be weighed in evaluating the testimony concerning Stockton's ter- mination.30 Turning to that evidence, I have el- sewhere found Stockton and Pedron reliable in their testimony, while I have not been favorably im- pressed with the testimony of Thomas and Lang- ford. As to this very issue, Thomas and Langford were in conflict, with Thomas asserting unequivo- cally that Stockton said he quit, while Langford testified only that Stockton only said "he was going too" as Pedron started to leave. Langford's testimony is considerably weaker than that of Thomas. Although there is some suggestion in his testimony, as in that of Thomas, that Stockton sug- gested that all the pumpers leave, from which Lang- ford might have inferred that Stockton was leaving his job, even in this regard his testimony is am- Texas Natural Gasoline Corp , supra, this is not a case in which Respondent sought to amend its answer at the heanng I also note that litigation of this issue did not represent a decision by the General Counsel to abandon reliance on Respondent's answer but was unavoidable since it was inter- twined with the evidence on which the General Counsel relies to estab- lish the discriminatory motivation for the alleged discharge WANDA PETROLEUM COMPANY biguous. For if Stockton merely addressed his question about going with them to Yarbrough, a possibility left open in Langford's testimony, it may well have been no more than a suggestion that Yar- brough, who had been discharged, leave Langford's office with Stockton and Pedron, and not that all the pumpers leave their jobs. Stockton was not on duty at the time of the meeting in Langford's office, and a mere indication that he was leaving with the discharged pumpers would hardly have signified that he was quitting his job. Thus, even under Lang- ford's version, it is far from clear why he would have construed Stockton's remarks as indicating that he quit and decided to write him off, as Carroll testified, when Respondent was already short of pumpers. Although Stockton's testimony as to his later visit to Carroll, disputed by Carroll, raises some doubt as to Stockton's certainty that he had been discharged, I do not find it so inconsistent with his version of the earlier meeting as to require rejec- tion of his and Pedron's testimony in the face of the inconsistencies between Langford and Thomas. Stockton's visit to Carroll to tell him he would work that evening could indicate, as Carroll testified Stockton stated, that Stockton had changed his mind about quitting, but it could also indicate that Stockton was uncertain as to whether Langford's affirmative response to his statement that Respon- dent would have to terminate him also made in the heat of the meeting , was meant as a termination, and that he sought only to seek to preserve his job. In the circumstances set forth, I conclude that Stockton and Pedron are to be credited as to what occurred in Langford's office and that Stockton was discharged when Langford replied affirmatively to Stockton's statement and thereafter told Carroll Respondent would write him off too. Although Stockton's discharge, unlike the others, occurred on the spur of the moment, its cause was the same . Stockton stated that if the others were discharged for their attitude, Respondent would have to terminate him also, indicating that he shared the attitude of Yarbrough and Pedron. Langford obliged, asserting no other cause. I con- clude that Stockton was discharged for the same reasons as the other employees, and that his discharge also violated Section 8(a)(3) and (1) of the Act.3t 2. The discharge of Wagstaff The circumstances surrounding Wagstaff's discharge raise suspicion that after Thomas stopped Wagstaff, Thomas and Mays sought to find a cause to discharge Wagstaff. Thomas' testimony that " As I have found that Respondent was aware of the union activity at the terminal and the discharges were attnbutable to it, I find it unnecessary to reach the alternative contention of the General Counsel that the discharges 375 another driver happened to mention Wagstaff's am- putation, leading him to investigate Wagstaff's file, is suspect. Although Thomas testified that he only checked to see where Wagstaff had been employed previously, and Mays testified that he acted based on the contents of Wagstaff's personnel history file, there is a strong suggestion that Respondent in- vestigated Wagstaff's prior history of employment at that time. Thus, a date stamp on the letter from Wagstaff's doctor to Robertson indicates that the letter was obtained by Respondent at that time. Although Mays testified that he learned of Wag- staff's heart disease, diabetes, and anxiety from Wagstaff's file, Wagstaff had not disclosed these conditions on his employment application or his first medical history statement, and it seems likely that Mays became aware of them from the letter rather than a mere examination of the contents of Wagstaff's personnel file. Although Mays denied talking to Wagstaff before Wagstaff was examined the second time, it is also likely that Wagstaff was made aware that Respondent knew the reasons he left Robertson before Wagstaff was examined the second time, as Wagstaff made the full disclosure of his medical history on that occasion which he con- cealed both at the time of his initial examination for employment with Respondent and his later ex- amination for employment after he left Respon- dent. Neither Mays nor Thomas impressed me as more candid in their testimony as to Wagstaff than in their testimony otherwise. Nonetheless, Wagstaff's testimony, on which reliance must be placed to infer a discriminatory motive, also inspires little confidence. I have found independent cause to discredit his testimony as to the circumstances under which he signed a union card. He conceded that he misrepresented his reasons for leaving Robertson on his employment application with Respondent and concealed his medical history both at the time of his employment by Respondent and in obtaining a new job after he was discharged. There can be little doubt that he did so in order to obtain employment for which he feared he would otherwise be disqualified. In these circumstances, I find it impossible to credit his testimony as to his encounter with Thomas on May 25, testimony which on its face is no more plausible than that of Thomas. Accordingly I do not credit his testimony, and I conclude that despite the suspi- cions that surrounded Wagstaff 's discharge, the record fails to establish a basis for inferring that Respondent was aware of Wagstaff's union activi- ties or was motivated by them in requiring Wagstaff to submit to a further physical examination and discharging him when the result of that examination was to disqualify him from employment as a truckdriver.32 Accordingly, I shall recommend that were caused by protected concerted activity. "An unsolved mystery, which I find it unnecessary to resolve for pur- poses of this decision, is how Wagstaff received certificates that he was 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the complaint be dismissed as to Wagstaff s discharge. 3. The alleged violations of Section 8(a)(1) The complaints allege that on May 8 Foreman "Red" Carroll interrogated an employee concern- ing the extent of union organization and Safety Su- pervisor Ashton Thomas interrogated an employee about the extent of union organization and told an employee that the employees trying to organize a union would be fired. With respect to Carroll, I have found that on May 7 or 8 at the pump shack at the rail siding, Carroll asked Stockton and Koonce how many em- ployees were in on the Union, and Stockton replied that the pump department was 100 percent for the Union. Although Carroll's question went to the union activities of other employees, he did not ask for the names of other employees supporting the Union, and it is unclear whether the conversation about the Union was initiated by the employees or by Carroll.33 Carroll's remark was unaccompanied by any other coercive comment. In these circum- stances, and particularly as the discussion may have been initiated by the employees, I conclude that Carroll's question did not violate Section 8(a)(1) of the Act. With respect to Thomas, the evidence shows that early on the morning of May 9, Thomas asked Daniels if he had signed "one of them things," to which Daniels replied that he had signed a card and explained why. Thomas told Daniels he could see his point, and the conversation ended. Although Thomas' question did not explicitly refer to the union cards, there is no indication that he could have been referring to anything else, and he did not correct Daniels when Daniels construed his question as relating to the union cards. I conclude that Thomas' question was intended as construed by Daniels. Thomas was not Daniels' supervisor, the incident occurred where Daniels was at work, Daniels answered truthfully, and Thomas expressed understanding rather than hostility. Still as this in- cident occurred immediately after the discriminato- ry discharges of three pumpers, including Biddle who had worked on the same shift as Daniels, I conclude that the questioning had coercive impact which might otherwise have been absent. Ac- qualified to drive under Motor Carrier Safety Regulations when on the face of the regulations, Wagstaff's amputation, without more, appeared to disqualify him from any interstate driving without a waiver from the Director, Bureau of Motor Carrier Safety, and to bar him absolutely from driving a vehicle transporting dangerous articles which must he marked under the Explosive and Other Dangerous Articles Regulations However, although that mystery is compounded by Langford 's concession that he hired Wagstaff with full knowledge that his amputation disqualified him from driving Respondent 's trucks, I cannot attach substantial significance to the change in Respondent 's view of his disability as Respondent's management had changed , and Mays was employed as personnel manager after Wagstaff was hired y' According to Stockton , either Stockton or Koonce asked Carroll what he thought of the union pamphlet he was reading when they entered the cordingly, I find that Thomas' questioning of Daniels violated Section 8(a)(1) of the Act. As there is no evidence, however, that Thomas made any threat that the employees trying to organize a union would be discharged, I shall recommend that the allegation of the complaint to that effect be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the Respondent's operations described in section 1, above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent violated Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affir- mative action designed to effectuate the policies of the Act. As I have found that Respondent discriminatorily discharged Frank Pedron, M. J. Burney, T. P. Yar- brough, Leroy Stockton, and James R. Biddle on May 8, 1969, I shall recommend that Respondent be ordered to offer them immediate and full rein- statement to their former or substantially equivalent positions,34 without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings they may have suffered by reason of the discrimination against them by payment to each of them of the amounts he normally would have earned as wages from the date of his discharge to the date of an offer of rein- statement, less net earnings, to which shall be added interest at the rate of 6 percent per annum, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. As I have found that the discharge of Jewel O. Wagstaff and the interrogation by Foreman Carroll did not violate the Act, and there is no evidence of a threat by Safety Supervisor Thomas, I shall pump shack Although Stockton was not asked whether the remark preceded or followed Carroll 's question, it seems likely that the discussion of the Union was initiated by it " Respondent contends that Burney and Biddle should be denied rein- statement because of Burney's alleged gross insubordination and Biddle's opinion expressed in his testimony that Respondent did not care about the purity of its product As to Burney, I have rejected Mays' testimony as to his alleged gross insubordination and find no merit in Respondent's conten- tion As to Biddle while his testimony as to Respondent 's concern for product purity appears unwarranted, it was not that attitude for which he was discharged While Biddle may be held to the same standard of per- formance as other employees upon his reemployment, he may not be de- nied reinstatement because he expressed a negative view of Respondent's concern for its business at the hearing WANDA PETROLEUM COMPANY recommend that the complaint otherwise he dismissed. CONCLUSIONS OF LAW 1. Wanda Petroleum Company is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Oil, Chemical and Atomic Workers Interna- tional Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily discharging Frank Pedron, M. J. Burney, T. P. Yarbrough, Leroy Stockton, and James R. Biddle, and by coercively interrogat- ing an employee, Respondent has engaged in and is engaging in unfair labor practices affecting com- merce within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact, con- clusions of law, and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that Respondent Wanda Petroleum Company, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other labor organization, by dis- criminating in regard to the hire or tenure of em- ployees or any term or condition of their employ- ment. (b) Coercively interrogating employees with respect to their union or concerted activities. (c) In any other manner interfering with, restraining , or coercing its employees in the exer- cise of their rights to self-organization, to form labor organizations, to join or assist Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in any other con- certed activities for the purpose of collective bar- gaining 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 Frank Pedron, M. J. Burney, T. P. Yar- brough, Leroy Stockton, and James R. Biddle im- mediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed. (b) Make the above-named employees whole for any losses they may have suffered by reason of the discrimination against them in the manner set forth in the section of the Decision above entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and 377 copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant and necessary to a determination of compliance with paragraphs (a) and (b), above. (d) Notify the employees named in paragraph (a), above, if presently serving in the Armed Forces of the United States of their right to full reinstate- ment 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. (e) Post at its Houston, Texas, place of business copies of the attached notice marked "Appendix."35 Copies of said notice, on forms pro- vided by the Regional Director for Region 23, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.31 IT IS FURTHER RECOMMENDED that allegations in the complaint not found to have been sustained in the Decision above be dismissed. I' In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 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 Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer Frank Pedron, M. J. Burney, T. P. Yarbrough, Leroy Stockton, and James R. Biddle immediate reinstatement to their former or substantially equivalent positions, 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without prejudice to their seniority or other rights or privileges , and WE WILL make them whole for any losses they may have suffered as a result of their discharges. WE WILL NOT discourage membership in Oil, Chemical and Atomic Workers International Union , AFL-CIO, or any other labor organiza- tion , by discriminatorily discharging any of our employees. WE WILL NOT coercively interrogate em- ployees about their union activities or member- ship. WE WILL NOT in any other manner interfere with , restrain , or coerce our employees in the exercise of their rights to self-organization, to form labor organizations , to join or assist Oil, Chemical and Atomic Workers International Union , AFL-CIO, or any other labor organiza- tion , to bargain through representatives of their own choosing , and to engage in other concerted activities for the purposes of collec- tive bargaining or other mutual aid or protec- tion , or to refrain from any and all such activi- ties. WE WILL NOTIFY the above-named em- ployees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Univer- sal Military Training and Service Act, as amended, after discharge from the Armed Forces. Dated By WANDA PETROLEUM 'COMPANY (Employer) (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered , defaced , or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 6617 Federal Office Building, 515 Rusk Avenue , Houston , Texas 77002 , Telephone 713-226-4296.