Tonkawa Refining Co.

TONKAWA REFINING CO. 41 Tonkawa Refining Co. and International Union of Operating Engineers, Local No. 351, AFL-CIO Case 16-CA-3544 June 30, 1970 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND JENKINS On January 19, 1970, Trial Examiner George L. Powell issued his Decision in this proceeding, find- ing that Rspondent had engaged in and was engag- ing in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other unfair labor practices and recommended that the allegations of the complaint pertaining thereto be dismissed. Thereafter, Respondent and the Charg- ing Party filed exceptions 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,2 conclusions, and recommen- dations of the Trial Examiner, as modified herein.' 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 and hereby orders that Respondent, Tonkawa Refining Co., Woodward, Oklahoma, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE L. POWELL, Trial Examiner- This case, under Section 10(b) of the National Labor Rlations Act, as amended, herein called the Act,' was tried before me May 27, 28, and 29, 1969, in Wood- ward, Oklahoma The complaint, issued April 18, 1969, based upon a charge filed on February 14, 1969, alleging violations of Section 8(a)(1), (3), and (5) of the Act and a first amended charge filed on March 20, 1969, alleging a violation of Section 8(a)(1) and (3) of the Act, presented the question of whether Section 8(a)(1) of the Act was violated by Respondent in refusing to discuss a grievance, in refusing to permit employees to return to work not- ing instead that they were in a "temporary layoff" status, and in discharging the employees the follow- ing day because of their concerted activities. The case of the General Counsel, as set out in the complaint, was based upon the proposition that when Respondent on January 27, 1969, at or about 8 p m , refused to discuss a grievance concerning employees' hours, wages, and conditions of employ- ment at the refinery with 11-named employees2 they concertedly ceased work from about 8:30 p.m. on January 27, 1969, to about 8:30 a.m. on January 28, 1969 At that time they made an unconditional offer to return to their former jobs by their representatives Orin Woodrum, Andy Woods, and Roger H. Burton but Respondent refused the offer and put them in "temporary layoff" status. The fol- lowing morning, January 29, 1969, at or about 4 a.m , Respondent discharged and refused to rein- state the named 11 employees. The General Coun- Respondent 's request for oral argument is hereby denied as the excep- tions, briefs, and the entire record adequately present the issues and posi- tions of the parties 2 The trial Examiner recommended that the Board bar Respondent's counsel, John Cosmic, from practice before the Board and that it also noti- fy the proper authorities of the State bar in order that they may consider disbarment proceedings because counsel advised Respondent' s plant manager Pollard not to testify after Pollard was called as a witness under Rule 43 ( b) after being served a subpena Because of Pollard's refusal to testify under 43(b) even though the Trial Examiner failed to rule on Respondent 's motion to revoke the subpena, the Trial Examiner would not permit Pollard to testify as Respondent 's witness later in the proceeding After a careful review of the record, we conclude that the Trial Ex- aminer should have proceeded to rule on the petition to revoke If the Trail Examiner had denied the petition to revoke and Pollard still re- fused to testify, the General Counsel had the option to seek enforcement of the subpena in district court or to continue his case without such testimony In such circumstances, we see no reason to censure or other- wise discipline Respondent 's counsel because he chose to challenge a subpena and thereby assert a colorable legal right on behalf of his client Accordingly, we do not adopt the Trial Examiner's comments or other recommendations on this matter Respondent, however, made no offer of proof respecting Pollard's testimony, nor did it even attempt to do so Absent such showing, we are satisfied that Respondent has not shown that it was prejudiced by the Trial Examiner's exclusion of Pollard's testimony Moreover , Member Jenkins agrees with the Trial Examiner 's ruling in precluding Pollard from testifying in behalf of Respondent after his earlier refusal to testify under Rule 43(b) 1 Member Brown concurs in the result i 29 U S C Sec 151 et seq 2 The employees named in the complaint are Jay Bryant, Roger H Bur- ton, George B Devenney, Lloyd Dudley, A J Harney, Jerry Hmnant, Paul Kibbe, Vern Miller, Buck Sibley, Orin Woodrum, and Andy Woods 184 NLRB No. 6 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sel alleged that by these acts Respondent violated Section 8(a)(1) of the Act. Respondent denied the allegations and the General Counsel was put to his proof. All parties appeared at the trial, were represented, and participated in it, and were given full opportunity to adduce evidence, to examine and cross-examine witnesses, submit briefs, and present oral argument. Briefs were filed on July 3 1, 1969, by the General Counsel and the Respondent. On the entire record of evidence, my observation of the witnesses as they testified, and on due con- sideration of the briefs, I find, for the reasons hereinafter set forth, that the General Counsel has established by a preponderance of the evidence that Respondent violated Section 8(a)(I) of the Act as noted below, and I will recommend a remedy to effectuate the purposes of the Act. In addition to the finding of violations set out above, I find for the reasons hereinafter set forth that lawyer John Cosmic, counsel for Respondent, engaged in contumacious conduct during the trial of the case and I will recommend a remedy to effectuate the purposes of the Act in this respect also. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE EMPLOYER AND THE LABOR ORGANIZATION I find that the allegations of paragraphs 2 and 3 of the complaint respecting the nature and volume of business carried on by Respondent , Tonkawa Refining Co., a Texas coporation having its princi- ple office and place of business in Arnett, Oklahoma, where it is engaged in refining crude oil and selling it to commercial outlets and to United States Air Force Bases, is true, and I conclude therefrom that Respondent is an employer engaged in commerce within the meaning of Section 2(6) of the Act . These allegations were admitted by Respondent. The parties also admitted and I find that the In- ternational Union of Operating Engineers, Local No. 351, AFL-CIO, has been at all times material to the complaint a labor organization within the meaning of Section 2(5) of the Act. II UNFAIR LABOR PRACTICES Employee driver Horace Gillian died shortly after he suffered severe burns on Friday, January 24, 1969,3 at an explosion and fire at the loading dock at Respondent's refinery. The next day, Saturday, January 25, the remaining 1 I drivers met at the Circle C Lodge "to determine what action the ' All dates are 1969 unless otherwise noted drivers wanted taken, so that there would not be another occurrence of this kind."a They discussed among themselves and decided to ask for a pay raise, for better hospitalization and in- surance, for a change to a biweekly pay period, for loaders to load the trucks, and for drivers to drive them thereby eliminating a fire hazard in loading, for other safety measures including a smoking room, smother blankets, and asbestos uniforms in case of fire rescue operations, and for a time limit within which the Respondent would act on the grievances and proposals They elected two drivers to notify Joe D. Pollard, plant manager, on Sunday, January 26, that none wanted to work on Monday, January 27, out of respect for Gillian. Two other drivers were elected to ask company officials from Houston, Texas (who were to attend Gillian's fu- neral), for a meeting with the drivers on Tuesday morning, January 28, and they elected three other drivers to present their proposals and grievances to these company officials The drivers were excused from work on January 27 and at the funeral a meeting was set up for Tuesday, January 28, to be attended by drivers Bur- ton, Woodrum, and Woods and Respondent's offi- cials from Houston, Mr. Naples, treasurer, and Mr. Ramey, vice president. But this meeting planned for January 28 with the Houston officials never took place. Instead, Pollard called a meeting of the I I drivers for Monday even- ing, January 27, at 8 p.m. Pollard, at this meeting, asked the drivers to bring their problems out in the open Burton questioned him if this meeting was to take the place of the one scheduled for the next day with Naples or Ramey and was told in reply that there would be no meeting the next day and that the only way the drivers could get to the Houston officials was through him. Woodrum then said, "That does [answer the question], and we have heard all we need to hear" and the drivers walked out. None of them reported for work on January 28 at the 4 a.m. starting time. Thus, the I I drivers struck. Dudley, a witness for Respondent, testified that the drivers agreed not to report for work at the regular starting time of 4 a.m the following morning, and they did not report to work at that time I conclude and find that the 11 drivers struck in a concerted effort to resolve their grievances and obtain economic benefits The General Counsel alleged in his complaint that Pol- lard's refusal to discuss the grievances to the satisfaction of the employees violated Section 8(a)( I ). I disagree and find no violation of Section 8(a)(1) by Pollard in this event. Pollard did no more than tell the employees they had to take their i Unless otherwise noted, the story of what happened is based on the credited testimony of Andrew Woods Although he testified that the meet- ing was on January 26, Respondent admitted in its brief it was on the 25th The names of the drivers who met are George Dcvenney, Vern Miller, Buck Sibley, A J Harney, Roger Burton , J Bryant, Lloyd Dudley, Paul Kibbe, Orin Woodrum, Jerry Hinnant , and Andrew Woods These are the I I drivers referred to hereinafter TONKAWA REFINING CO grievances through him Management has the right to run its business as to the channels to take in processing grievances. This case does not involve allegations of refusal to bargain in good faith. Ac- cordingly, I will recommend the allegations of violation of Section 8(a)(1) as set forth in para- graph 7 of the complaint be dismissed. January 28 About 8:30 a.m. on Tuesday, January 28, all 11 drivers came to the plant where they met with Pol- lard, Milton Wills, and Mrs. Bonneta Randolph of the Company. Burton asked Pollard if the drivers were going to have a meeting with the Houston of- ficers to which Pollard replied that "he didn't know of any meeting going to be held that morning. He said that as far as he knew we hadn't asked for a meeting " Pollard told them they would have to meet with him Burton asked for a meeting. The meeting then took place in Pollard's office with Pollard, Wills, Randolph, Burton, Woodrum, and Woods present. They discussed inter alia, safety features, pay raise, hospitalization and in- surance, biweekly pay periods, smoking room away from dock area, and loaders loading trucks without help from drivers who nonetheless were being paid. The drivers wanted an answer to these proposals by Friday, January 31. Pollard told them this was in- sufficient time to get an answer back from Houston to the questions raised . Burton then told Pollard the drivers would wait a week until February 4. The drivers were ready to go back to work on February 4 and offered to do. Burton told Pollard, "Joe, we are ready to haul fuel." Pollard replied, "Well, I am not." Burton asked if this were a temporary layoff and Pollard answered, "yes."5 The drivers met again with Pollard on the even- ing of January 28 at the call of Respondent. With Pollard was Wills and Respondent's counsel John Cosmic who did the talking for Respondent. Cosmic told the drivers if they failed to take out their loads in the morning of January 29 they would be considered as having quit their jobs Burton, the spokesman for the drivers, replied to Cosmic that "no one is quitting," that they would work up until February 4 by which time they should have some assurance on their grievances and proposals. When pressed by Cosmic with the question of what would the drivers do after February 4, Burton told him 5 Burton corroborated this testimony So did Dudley, the Respondent's witness 6 Harney credibly corroborated Woods but his phrasing of why the drivers would work up to February 4 was that this would be "giving the company adequate time to negotiate on our grievances " He testified "We were not asking for a definite settlement , but we did want some sort of con- sideration from the company in the way of meeting with us and making an attempt to at least show their interest , that they were interested and try to work with us on it " He also testified that he asked Cosmic why the drivers should give him a definite answer on what they would do after February 4 if he refused to give them a definite answer on their " negotiations " Cosmic did not 43 they didn't then know but that some action would be taken. Cosmic told them they had to have drivers they could depend on, but, in reply to Burton's question of when could Respondent act on the grievances, said "it may be a week, or a month, or a year, or maybe never," Cosmic told them he couldn't give them any assurances as when Respondent would act on the grievances. The meeting came to an end and as the drivers left the room, Woods told Cosmic the drivers were not quitting.' January 29 The following morning, January 29, the drivers again did not report to work at the 4 a.m. starting time. About 8 am Burton, Woodrum, and Woods went to the refinery and asked Pollard if the Respondent had decided to meet with them on their grievances. Cosmic and Wills were present. Pollard replied, "No" and the three drivers left. None of the 1 1 drivers worked that day January 30 The following morning, January 30, Woods went to the refinery and asked Pollard if the Respondent was ready to talk over the proposals and grievances. Pollard replied, "No" and Woods left. January 31 The same thing happened on January 31, Woods asked Pollard the same question, got the same answer, and again left the premises February 1 Again on February I Woods asked Pollard if Respondent would meet with the drivers on the proposals and grievances. Pollard again refused February 3 The next meeting was Monday, February 3, when Woods again asked Pollard if Respondent would meet on the grievances and proposals. Pollard at this time told him that Respondent would not meet as they had taken the position the drivers had quit, answer But Cosmic again stated that if the drivers did not work the follow- ing morning that he would assume that they had quit At that time Bryant, Woodrum, Dudley , and Harney told Cosmic that if the Company "did not make any kind of negotiations, was not making any effort to negotiate, or want to negotiate , or try to work with us on it, that we would quit " "Cosmic said he was not accepting any resignations , that if we did not drive the following morning that he would assume we had quit " "The company will take the position that you have quit " At that time "the meeting was pretty well out of control and ending it was loud Cosmic was badgering us Tempers were flaring He had everyone pretty well hot " As they were leaving the meeting, Burton informed Cosmic, "Now remember, none of us are quitting " 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and they were going to hire new drivers. Again Woods told him the drivers had not quit. February 4 The next meeting was the following day, Februa- ry 4, at or about 5:30 p.m., when Burton and Woods talked to Pollard. Pollard told them Respon- dent was not intending to talk to them as the Respondent assumed the drivers had quit and Respondent was going to replace them by new hires. 7 February 7 The next meeting was February 7 about 10 a.m. at which time all 11 drivers except Dudley, Hin- nant, and Kibbe (who had been rehired as new em- ployees) were present. At this time Woods gave Pollard a written request to go back to work uncon- ditionally. Pollard told them, "I am not authorized to hire you back as a crew. But if I had the authori- ty my answer would be "No." Harney asked Pollard if going on strike had anything to do with this ac- tion and Pollard replied, "yes, it had to." Pollard told them he was authorized to hire back . . three, five, nine, or any number of drivers" but that they would be hired as new employees los- ing their seniority and vacation rights as they had quit their jobs. Devenney specifically asked Pollard if he was authorized to hire him back and Pollard replied, "No." Bryant asked Pollard if he was authorized to hire him back and Pollard replied, "No." Miller and Harney each asked the same question for themselves and each was told "No." The drivers then left. February 8 The following morning, February 8, the same eight drivers returned to the plant Pollard was asked by them what action Respondent was taking on their unconditional offer to return to work Pol- lard told them they were considered as having quit their jobs and were to be replaced but that they could fill out new applications and they would be considered for rehire. The eight drivers took em- ployment applications and left the premises February 10 On February 10, Woods took the job applications for Burton and Woodrum to the plant about 10 a.m. and gave them to Mrs Randolph in the office. 7 Harney corroborated Woods' testimony but occasionally furnished ad- ditional details He credibly testified that he, Devenney, Kibbe, and one other driver saw Pollard at 10 or 10 30 a m on February 4 at the refinery They asked Pollard if he had received any information from Houston con- cerning their grievances Pollard said he had not received any and that as far as the Company was concerned the drivers had quit Devenney told Pol- He gave his own application to Pollard who, after looking it over, questioned if he was serious about the desired wage he had put on the application Woods replied that he was serious about the amount and he was not hired. New hires and bookkeeping on strikers Mrs. Bonneta Randolph, Respondent's book- keeper and secretary, prepared a list of truckdrivers hired after the strike in January as follows: Date Hired Adams, James 4-16-69 Belew , Larry 4-16-69 Bohannon , Jerry 2-8-69 Branson , Sam 2-7-69 Burba, Melion 2-15-69 Foth, Abraham 4-7-69 Holt, Terry 2-6-69 Rodgers, Bill 4-16-69 Skarke, Bob 2-6-69 Smith , Dan 2-5-69 Further, she added to the list by credibly testify- ing that McFall, a truckdriver, was hired in mid- April 1969, and that three of the striking drivers, namely Hinnant , Kibbe, and Dudley, were hired as new employees on February 6 or 7, 1969. (The parties stipulated that Kibbe was hired February 6 and Dudley on February 7 ) She said that beginning the week after the strike, until late in February, common carriers were hired by Respondent to haul the jet fuel previously hauled by the drivers, but two loads were first hauled by the common carriers on January 31. Respondent's business increased in February but as drivers were hired the common carriers were eliminated. Mrs. Randolph had been at the meeting with Pol- lard on Tuesday morning, January 28, when Woods, Burton , and Woodrum were talking to Pol- lard about the grievances and proposals. She cor- roborated Woods in that the drivers said "We are ready to work, go back to work" and that they would expect an answer from the Respondent in a week as to the proposals and grievances Nothing was said as to how long they would work Her testimony was that when the drivers said they were ready to work, Pollard replied, "Well, I would rather you didn't today, not till I talk to Houston [the head office]," or something to that effect They said, "That's fine." When the drivers did not show up for work the following morning of Wednesday, January 29, Pol- lard that the drivers had not quit Pollard told them the Company had as- sumed they had quit, because they "definitely are not fired " Devenney told Pollard the drivers were "ready to go to work," but Pollard replied that the Company had assumed they had quit and "you are not going back to work " TONKAWA REFINING CO. 45 lard instructed Randolph to "call in their time" [figure what was owed them] as "he assumed these drivers had quit because they didn 't come back to work ." She then figured what was owed the drivers and they were paid "the following Monday, I be- lieve," which was not the normal payday. The drivers had never requested that they be paid off Pollard Pollard was called as a witness for the General Counsel He was present in the courtroom being seated at counsel 's table with his lawyer, John Cosmic. Cosmic ordered him not to take the stand. The Trial Examiner ordered him to take the stand notifying him and his counsel that if he refused to take the stand and testify that any of his testimony could be stricken from the record He refused to testify and Cosmic was advised by the Trial Ex- aminer it would serve no useful purpose to ever call Pollard to the stand . Pollard never testified (The recommendations of the Trial Examiner relating to actions to be taken against Cosmic for his contuma- cious conduct appear hereinafter under a separate heading.) Milton Wills, Pollard 's assistant, testified for Respondent . To the extent that the testimony of Wills is in conflict with testimony of any of the General Counsel 's witnesses it is not credited on his demeanor while testifying and on his rather obvious effort to testify to what he believed would be favorable to his employer . His very actions follow- ing a telephone conversation with his superior, Pol- lard, telling him that he was being summoned to ap- pear as a witness attest to his excessively submissive conduct toward Pollard. I received the decided im- pression that his oath to testify to the truth, the whole truth, and nothing but the truth was entered into with the mental reservation that Pollard came first Recapitulation and Analysis Based upon the credited testimony of Woods, Burton , and Randolph , the 11 drivers concertedly ceased work on January 28 but agreed to come back to work beginning January 29 pending receipt from the Houston office of comments as to the position of Respondent on the grievances and proposals made to Pollard on the morning of Janua- ry 28. At first the drivers wanted an immediate answer to their grievances and proposals but when it was explained to them that it would take time to communicate with the head office in Houston, they agreed to work until February 4 to see what Respondent 's officials had to say. Whether they would resume the strike thereafter would depend upon the reply of the officials At the morning meeting on January 28 Pollard did not agree to this arrangement of the drivers' returning to work on January 29, saying he was not ready to let them work and telling them he was putting them on "temporary layoff." This violates Section 8(a)( I) of the Act as it is illegal retaliation based upon the drivers ' having engaged in pro- tected concerted activity. Cosmic entered the story later on in the same day of January 28 and appeared to deliberately confuse the drivers by telling them they would be con- sidered as having quit if they did not report for work on January 29 at 4 a m. even though Pollard had earlier told them he didn't want them to work. Even if the drivers were still on strike (which I find they were not, having offered to return to work) a statement by an agent of Respondent , such as Cosmic, that if strikers did not return to work they would be considered as having quit , violates Sec- tion 8(a)( I) of the Act because it interferes with, restrains , and coerces employees in their right to engage in concerted activities for their mutual aid and protection . The law for this conclusion is so well known as to require no statement of authority. Cosmic's statement is a deliberate mistatement of the law calculated to influence and interfere with the rights of the employee drivers. Also at the meeting in the evening of January 28, Cosmic refused to discuss the problems raised by the drivers but instead , badgered them by repeti- tious questioning as to what they were going to do on February 4 ("Tuesday " was the word used to mean February 4) knowing at the time that what the drivers would do depended on the Company's answer to their proposals There is no factual basis in this case to support a contention , if any, that the drivers were engaging in "intermittent" or "recurrent " or "partial " strike action . There is a possibility that , under the circumstances of this case, Cosmic's conduct at this meeting would vio- late Section 8(a)(I) of the Act. The employees had certain grievances and proposals they wished to bring to their employer for resolution in the spirit of engaging in concerted action for their mutual aid and protection-a protected activity . They had earlier met with their plant manager , Pollard, in the morning of January 28 over these matters and were summoned to another meeting for that evening. Obviously they attended the meeting in the belief that it was a continuation of the morning meeting. But it turned out otherwise Pollard turned the meeting over to Cosmic, who refused to meet the issues . Instead , he badgered the employees as to their future intentions . This conduct could reasonably interfere with, coerce , and restrain em- ployees in their enjoyment of their rights under Section 7 of the Act in violation of Section 8(a)(1) of the Act, but as this activity was not developed in the complaint nor in the General Counsel 's theory of the case , the Respondent had no notice and hence no opportunity to adduce any evidence it may have had concerning the attitude of Cosmic at the meeting . Accordingly , I can not say this issue had been litigated at the trial and will not find a violation of Section 8(a)( I) of the Act as to it. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, Section 8(a)( I) of the Act was violated by Pollard on January 29 when, after the drivers did not show up at 4 a.m , he told Randolph to mark the drivers as having quit and to pay them off, when he knew they had not quit Indeed, he had told them they could not come to work. I find Pol- lard discharged these employees and refused them reinstatement because they were engaging in con- certed protected activity within the meaning of Sec- tion 8(a)(1) of the Act. The remedy usually prescribed by the Board for this activity is to order Respondent to cease and desist from such activity and to reinstate the employees to their jobs (or their substantial equivalent), discharging, if neces- sary to do so, any replacements, and to make them whole for loss of pay I will provide this remedy hereinafter in section IV entitled "The Remedy." Further, the date of January 29 is fixed as the date of the discharge, even though Pollard put them in a "temporary layoff" status on January 28 because January 29 was the first day these drivers were kept from work. Contumacious Conduct of John Cosmic, Esq This was a trial of an alleged unfair labor practice being conducted before a Federal Trial Examiner in accordance with and under the Federal Administra- tive Procedure Act (5 U.S.C. Sec, 551, et seq. ) and the National Labor Relations Act, supra. During the trial, Counsel John Cosmic deliberately dis- obeyed a ruling and thwarted an order of the Trial Examiner in open defiance of his authority. The Trial Examiner had ordered Pollard to take the stand and testify as a witness. Cosmic ordered him not to do so and Pollard refused to take the stand. (The question of subpena enforcement is immateri- al in these circumstances.) By this action Cosmic willfully engaged in contumacious conduct. That others engaged in similar conduct is no defense for him." Contumacious conduct by counsel at Labor Board unfair labor practice trials or in any type of courtroom proceedings, is more serious than a felony and cannot be tolerated. A lawyer is bound by his calling to honor and to protect the law and those who are engaged in its administration. It is never necessary and hence there is no justification for a lawyer to deliberately flaunt legal authority, as was done in this case. There are adequate avenues provided for taking appeals from error and ar- bitrariness. Society itself can be likened to a vehicle on the move always being rocked and tossed, but not stopped, by the disobedience, selfishness, and crimes of its members. But when a lawyer disobeys lawful authority and takes the law into his own hands, he pulls the linch pin causing society to drop to the gutter and grind to a halt. Lawyers and judges today are ever mindful of their ethical duty to alarm the careless and censure the willful member. Accordingly, I find that John Cosmic, Esq., performed a disservice to his client, breached his responsibility as an officer of the court, took the law into his own hands, and dishonored his profession by engaging in contuma- cious conduct as set out above. The remedy for this conduct will be provided in section IV entitled "The Remedy."9 III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with Respon- dent's operations described in section I, above, have a close, intimate, and substantial relationship 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. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices I shall recommend that it cease and desist therefrom and take certain affir- mative action to effectuate the policies of the Act. Having found that Respondent discharged Jay Bryant, Roger H. Burton, George B Devenney, Lloyd Dudley, A. J. Harney, Jerry Hinnant, Paul " At the conclusion of the case , the General Counsel requested the Trial Examiner to admonish Cosmic and recommend a formal reprimand to the Board Cosmic knew of this procedure from somewhat similar conduct as he mentioned the lawyer's name involved in an earlier case This part of the record is set out in full as follows MR ECKHARDT Counsel for the General Counsel would like to state at this time that Mr Cosmic has demonstrated at this hearing a con- tempt for the trial processes of the Government , and the Trial Ex- aminer in particular , that this Counsel has not seen in eleven years of Board employment He has thwarted justice by advising his client not to testify, in defi- ance of the Trial Examiner's instructions, and by refusing to produce documents which he knew were material to the issues in this case He has demonstrated, contrary to his responsibilities as an officer of the court , that he intends to serve his client only , and not the ends of justice In view of these facts , Counsel for the General Counsel hereby requests that the Trial Examiner officially admonish Mr Cosmic for his conduct in this case and recommend to the Board that it issue a for- mal reprimand and warning to Mr Cosmic and/or bar Mr Cosmic from practice before the National Labor Relations Board for at least six months MR COSMIC What did you do, delete Mr Price's name and put mine in there) The Federal Hearing Examiner has no contempt powers but I suggest that he has the following options he may use during the trial when counsel for Respondent instructs a witness not to testify ( for reasons other than constitutional immunities ) He may (I) strike the previous testimony of the witness who refuses to testify or refuse to permit him to testify, (2) refuse to permit Respondent 's counsel to cross examine any witness, ( 3) refuse to permit Respondent to introduce any evidence on its own behalf , ( 4) grant a motion for directed verdict upon completion of a prima facie case by General Counsel , and (5 ) remove Respondent 's counsel from the case setting down a reasonable time for Respondent to secure other counsel be- fore resuming the trial The Federal Hearing Examiner exercises his discre- tion of which of these options, or of how many of the options , he desires to use as the circumstances merit TONKAWA REFINING CO. 47 Kibbe, Vern Miller, Buck Sibley, Orin Woodrum, and Andy Woods on January 29, 1969, in violation of Section 8(a)(1) of the Act and that it failed to reinstate them upon their unconditional application therefor, I will recommend that Respondent offer each of them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of earnings or other benefits he may have suffered as a result of the discrimination against him, said loss to be computed in accordance with the formula set forth in F. W Woolworth Company, 90 NLRB 289, and with interest thereon as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. In view of the nature of the unfair labor practices found herein to have been committed by Respon- dent, which indicate its determination to interfere aggressively with its employees' rights of self-or- ganization , I shall recommend that the Respondent cease and desist , in any manner, from infringing upon rights guaranteed its employees by Section 7 of the Act 10 Having found that John Cosmic, Esq., engaged in willful and deliberate contumaceous conduct, I will recommend (1) that he be barred from practice be- fore the Board; and (2) that the Board notify the proper State Bar authorities of this action in order that they may consider disbarment proceedings Upon the foregoing findings of fact and the entire record in this case, I reach the following CONCLUSIONS OF LAW 1 Tonkawa Refining Co. is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. International Union of Operating Engineers, Local 351, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By putting the employees on temporary layoff on January 28, 1969, because they had engaged in concerted action for their mutual aid and protec- tion , by threatening employees with being put in the status of having quit if they engaged in a work stoppage in their concerted action for their mutual aid and protection; and by discharging Jay Bryant, Roger H Burton, George B. Devenney, Lloyd Dudley, A J. Harney, Jerry Hinnant , Paul Kibbe, Vern Miller, Buck Sibley, Orin Woodrum, and Andy Woods on January 29, 1969, because they engaged in concerted action for their mutual aid and protection, and by refusing to put them back to work upon their application Respondent has inter- fered with, restrained, and coerced employees in the exercise of rights guaranteed in the Act and has thereby violated Section 8(a)(I) thereof. 4. The aforesaid unfair labor practices are unfair to N L R B v Entwistle Mfg Co , 120 F 2d 532 (C A 4) labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The allegation of paragraph 7 of the com- plaint that Respondent violated Section 8(a)(1) of the Act by refusing to discuss a grievance has not been sustained. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that Tonkawa Refining Co., its officers, agents, successors, and as- signs, shall- 1. Cease and desist from: (a) Putting employees on temporary layoff when they engage in concerted action for their mutual aid and protection (b) Threatening employees with the statement that they would be considered as having quit when they engage in concerted action for their mutual aid and protection. (c) Discharging employees becuase they en- gaged in concerted action for their mutual aid and protection. (d) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of their right to self-organization; to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any and all such ac- tivities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action to effec- tuate the policies of the Act (a) Offer to Jay Bryant, Roger H. Burton, George B. Devenney, Lloyd Dudley, A. J. Harney, Jerry Hinnant, Paul Kibbe, Vern Miller, Buck Sibley, Orin Woodrum, and Andy Woods im- mediate and full reinstatement to their former posi- tions, or to positions substantially equivalent to those which they held immediately prior to January 29, 1969, without prejudice to their seniority and other privileges (discharging those hired as their replacements if necessary) and make each of them whole for any loss of wages or other benefits in the manner set forth in the section of the Decision enti- tled "The Remedy." (b) Notify Jay Bryant, Roger H Burton, George B. Devenney, Lloyd Dudley, A J Harney, Jerry Hinnant, Paul Kibbe, Vern Miller, Buck Sibley, Orin Woodrum, and Andy Woods if presently serv- ing 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 Universal Military Training and Service Act, as amended, after discharge from the Armed Forces 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Preserve and, upon-request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its place of business in Arnett, Oklahoma, copies of the attached notice marked "Appendix "11 Copies of said notice, on forms pro- vided by the Regional Director for Region 16, after being duly signed by its 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 employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.12 IT IS FURTHER RECOMMENDED that the allegations of the complaint, insofar as not found violative of the Act in the Decision, be dismissed. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The trial which was held in Woodward, Oklahoma, on May 27, 28, and 29, 1969, at which all parties participated and had a chance to give evidence, has resulted in a Decision that we violated Section 8(a)(1) of the National Labor Relations Act, as amended, (I) by putting our truckdriver employees on temporary layoff on January 28, 1969, because they engaged in concerted action for their mutual aid and protection; (2) by threatening our truckdriver employees with being put in the status of having quit if they engaged in a work stoppage in their concerted action for their mutual aid and pro- tection; and (3) by discharging Jay Bryant, Roger H. Burton , George B. Devenney, Lloyd Dudley, A J Harney, Jerry Hinnant, Paul Kibbe, Vern Miller, Buck Sibley, Orin Woodrum, and Andy Woods on January 29, 1969, because they engaged in con- certed action for their mutual aid and protection and refusing to put them back to work when they asked to go back to work. The Board ordered us to promise our employees that we will not do these things again, and that we will not, in any other way, interfere with, restrain, or coerce them in the exercise of their rights, under Section 7 of the National Labor Relations Act, to Organize themselves into a union Form, join, or help unions Bargain as a group through a union representative of their choice Act together for collective bargaining or for mutual aid and protection Refuse to do any or all of the above, un- less required by a valid contract providing for union membership in accordance with law. We therefore promise that. WE WILL NOT put our employees on tempo- rary layoff when they engage in concerted ac- tion for their mutual aid and protection WE WILL NOT threaten our employees with the statement that they will be considered as having quit when they engage in concerted ac- tion for their mutual aid and protection WE WILL NOT discharge employees because they engage in concerted action for their mu- tual aid and protection. WE WILL offer to give back their jobs to Jay Bryant, Roger H. Burton, George B. Devenney, Lloyd Dudley, A. J Harney, Jerry Hinnant, Paul Kibbe, Vern Miller, Buck Sibley, Orin Woodrum and Andy Woods, and WE WILL make up any losses in pay or other benefits they have suffered since we discharged them, with interest at 6 percent. WE WILL notify immediately the above- named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in ac- cordance with the Selective Service Act and the Universal Military Training and Service Act , as amended, after discharge from the Armed Forces WE WILL NOT interfere with, coerce, or restrain any of our employees in their exercise of their Section 7 rights as set out above. TONKAWA REFINING CO. (Employer) ° 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 " 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " TONKAWA REFINING CO 49 Dated By tive days from the date of posting and must not be altered, defaced, or covered by any other material. (Representative ) (Title) Any questions concerning this notice or com- pliance with its provisions , may be directed to the This is an official notice and must not be defaced Board 's Office, 8A24 Federal Office Building, 819 by anyone Taylor Street, Fort Worth, Texas 76102 , Telephone This notice must remain posted for 60 consecu - 817-334-2941.