Ashland Oil Co. of California

ASHLAND OIL COMPANY Ashland Oil Company of California and General Truck Drivers, Chauffeurs, & Helpers Union Local 692, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Cases 21-CA-10283 and 21-RC-12310 September 22, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 6,1972, Administrative Law Judge 'Rich- ard D. Taplitz issued the attached Decision in this proceeding. Thereafter, Respondent files exceptions and a supporting brief, to which the General Counsel filed a reply.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Ashland Oil Company of California, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order. IT IS FURTHER ORDERED that the election held on September 13, 1971, in Case 21-RC-21310, be, and it hereby is, set aside, and that said case is hereby re- manded to the Regional Director for Region 21 to conduct a new election at such time as he deems that the circumstances will permit the free choice of a bargaining representative. i The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 The General Counsel's request to correct the inadvertent use of the name Simas instead of Sanford by the Administrative Law Judge in his Decision (sec III A 4) is hereby granted. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Trial Examiner: This case was tried 231 at Los Angeles, California, on February 3 and 4, and April 20, 1972. It is a consolidated proceeding involving a com- plaint of unfair labor practice against Ashland Oil Compa- ny of California (Case 21-CA-10283) and objections to the conduct of Respondent affecting the results of an election in which Respondent's employees participated (Case 21- RC-12310). The alleged unfair labor practices under Sec- tion 8(a)(1) and (3) of the National Labor Relations Act, as amended, include within them the same conduct on which the objections to the election are based. In Case 21-CA-10283 a charge was filed on September 13, 1971,' against Respondent by General Truck Drivers, Chauffeurs & Helpers Union Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union. The complaint dated November 9, 1971, as amended on January 14 and 26, 1972, alleges that Respondent violated Section 8(a)(3) and (1) of the Act by discharging its employee Douglas L. Mulkey, Jr., and in addition violated Section 8(a)(1) of the Act by threatening to close its terminal if the employees sup- ported the Union, by threatening to reduce the economic benefits of employees and more stringently enforce rules if the employees selected the Union as their bargaining agent, and by interogating employees concerning their union ac- tivities and the union sympathies of fellow employees. In Case 21-RC-12310, the Union filed a petition on Au- gust 2, 1971, seeking an election at Respondent's Long Beach, California, terminal. Pursuant to a stipulation for certification upon consent election signed by the parties and approved on August 20, by the Regional Director of Region 21 of the Board, an election was held on September 13, among the employees at Respondent's Long Beach terminal in a unit consisting of: All yardmen loaders, maintenance men, dispatchers and truck drivers, but excluding all office clerical employees, professional employees, guards, watch- men and supervisors as defined in the Act. The employees cast three votes for and five votes against the Union. In addition, there was one challenged ballot. On September 22, 1971, the Union filed timely objections to the conduct of Respondent affecting the results of the election. After inves- tigation of the objections, the Regional Director in his re- port on objections and order directing hearing and order consolidating cases and notice of hearing, dated November 10, concluded that one objection should be dismissed but that two other matters, which were also the subject matter of the complaint in Case 21-CA-10283, could best be de- termined in a hearing with the related allegations of the complaint. Those two objections related to the discharge of Mulkey and a threat to close the terminal. The Regional Director consolidated Cases 21-CA-10283 and 21-RC-123 10 and further ordered that after hearing, ruling, and deci- sion by a Trial Examiner, Case 21-RC-12310 be transferred to the Board. On November 29, the Board adopted the recommendations contained in the Regional Director's re- port. Issues The primary issues are: whether Respondent violated i All dates are in 1971 unless otherwise specified 199 NLRB No. 42 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(a)(3) and (1) of the Act by discharging Douglas L. Mulkey because of his activities on behalf of the Union; whether Respondent violated Section 8(a)(1) of the Act by making various threats to employees to discourage union activity and by interrogating them about such activity; and whether the election should be set aside because of Respondent's conduct. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. Upon the entire record of the case and from my observa- tion of the witnesses and their demeanor, I make the follow- ing: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a California corporation engaged in the nonretail sale and distribution of petroleum products at its terminal located at 1920 Lugger Way, Long Beach, Califor- nia. It annually purchases and receives goods valued in excess of $50,000 directly from suppliers located outside the State of California . Respondent is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Violations of Section 8(a)(1) of the Act 1. Agency and background Respondent is in the business of selling gasoline to gas stations. It operates from terminals in Long Beach, Rich- mond, and Oakland, California, with its main office in Oak- land. Walter Simas is president and chief executive officer of Respondent. Directly under Simas in the supervisory heirarchy is Fred Rascon, who is the overall manager of all of the terminals. He manages the terminals with regard to all matters, including personnel, and he has hired employees on a number of occasions. One of the terminal managers whom Rascon supervises is Robert J. Sanford. Sanford is in charge of and is responsible for the operation of the Long Beach terminal. Except for an occasional visit from Rascon, who is stationed in Oakland (the San Francisco Bay area), Sanford is the only representative of management at the Long Beach terminal (the Los Angeles area). He assigns work to employees; has authority to recommend the hire and fire of employees ; and issues warning slips and grants time off to employees. Simas, Rascon, and Sanford are su- pervisors within the meaning of the Act. Respondent has contracts with certain unions in the San Francisco Bay area covering employees in that area, but has not recognized any union as the representative of employees at the Long Beach terminal. Respondent employs approxi- mately nine yardmen, loaders, maintenancemen, dispatch- ers, and truckdnvers at the Long Beach terminal. In May or early June, one of the drivers, Douglas L. Mulkey, Jr., contacted a representative of the.Union and an organiza- tional campaign began which resulted in the election proce- dure set forth above. 2. The Credibility of Sanford and Rascon As manager of all of Respondent's terminals, Rascon had general authority over the terminals, including authority over personnel matters. Simas was often away from the office on his own independent business matters and the terminal managers reported directly to Rascon. Sanford spoke to Rascon on the telephone almost every day. When Sanford received a copy of the petition for an election that had been filed on August 2, 1971, and later, several weeks before the September 13 election, when he received notice that the election was to take place, he mailed copies of those documents to the main office. In spite of these admitted facts, Rascon testified that he learned for the first time that there was a union campaign going on only 2 days before the election. He averred that he was not aware that a petition had been filed until that time. According to Rascon, he never discussed the petition or the campaign with Simas and he first heard of it when Sanford called him and mentioned the election just 2 days before it took place. He denied that he talked to Sanford about the union situation when he went to the Long Beach terminal a few days before the election. Sanford testified that he never discussed the union cam- paign with Simas and that he did not discuss it with Rascon until a few days before the election. Simas, Rascon, and Sanford were certainly concerned about the union cam- paign. Simas sent the employees an antiunion letter and both Rascon and Sanford admittedly spoke to the employ- ees in an effort to persuade them to vote against the Union. It is simply inconceivable that in these circumstances Ras- con would have been completely ignorant of any union activity until a few days before the election or that Sanford would have refrained from discussing the matter with Ras- con. Their testimony that there was an almost complete lack of communication between them on this important person- nel matter is unbelievable and sheds doubt on their credibil- ity generally. 3. The alleged interrogation and threats In May, David Dingee was hired by Rascon as a driver for the Long Beach terminal. During the employment inter- view, Rascon said that they had a union in the plant up north and they didn't want one at Long Beach. He asked Dingee whether he was a union member.2 Also in May, Rascon spoke to Mulkey about the Union. Rascon approached Mulkey while he was checking his truck and asked him what he thought of the Union. Mulkey re- plied that he had no need for a union and it was no concern of his. Rascon then said that the Union was trying to get in and that Respondent had closed down before and would do it again if the Union was successful.3 2 This finding is based on the credited testimony of Dmgee. I do not credit Rascon's denial. 3 This finding is based on the credited testimony of Mulkey. I do not credit Rascon's denial. ASHLAND OIL COMPANY In July, Sanford, while in his office, spoke to Mulkey and some other employees about the Union. He told them that he wasn't concerned whether or not there was a union or whether or not the employees wanted one, but that if they voted for the Union, Respondent would close down as it had before.' The petition for an election was filed on August 2. In the early part of August, Sanford spoke to employee David Dingee about the Union. He told Dingee that the Union couldn't give them very much as far as benefits were con- cerned and that the old man (Simas) didn't want the Union because he was particular about how people told him to run his business. Sanford also said that there was a possibility that if the Union came in, the plant could change from what it was to a bulk plant or be closed down .5 On August 29, employee Willie Smith told Mulkey that two other employees had informed Sanford that Mulkey had spoken to them about the Union. Later the same day, Mulkey went to Sanford's motel room and told him that he decided to be represented by a union and that he had talked to other employees about it. Sanford then picked up a paper that related to a misdumping (placing the wrong octane of gasoline in a gas station tank) incident and said "You know, I could have fired you before." Sanford also said that he hadn't told higher officials about it and added "You know, the Company will close if you guys vote the Union in. They have done it before." Mulkey replied that he didn't believe it and Sanford answered that he was closer to the Company and had a better understanding of what they would and wouldn't do. In late August, Sanford also spoke to employee Robert L. Chinery. Sanford said "So you guys want the Union." Chin- ery answered in the affirmative and Sanford then replied, "Well, if the Union gets in, they will probably close the terminal down." Sanford also said that he had reason to fire a man.' On September 9, Respondent sent the following letter to the employees: A union election will be next Wednesday. IF THE UNION WINS, WHAT HAPPENS? It wins only the right to talk. The talk is called "bargain- ing". A union does not mean any automatic increase in wages or benefits. Bargaining can start from "zero". Present wages and benefits could end up better. THEY ALSO COULD END UP THE SAME OR WORSE. The only way a union can try to force the Compa- ny to do anything it is not willing to do is to pull you out on strike. If the union calls a strike over wages, your job is 4 This finding is based on the credited testimony of Mulkey. I do not credit Sanford's denial. S This finding is based on the credited testimony of Dmgee. I do not credit Sanford's denial. 6 These findings are based on the credited testimony of Mulkey. Sanford acknowledged that Mulkey told him that he was behind the Union but denied the balance of the conversation . I do not credit Sanford's denial 7 These findings are based on the credited testimony of Chmery. I do not credit Sanford's denials. 233 on the line. You can be replaced. A strike could cause us to lose business. It might cause us to have to shut down the terminal. If so, your job would be gone. Big unions are big business. They are impersonal. They are cold. They want your money. You mean noth- ing to them. I ask you to vote NO UNION Vote: X Yes No IF YOU SIGNED A UNION CARD, YOU DO NOT HAVE TO VOTE UNION. A few days before the election of September 13, San- ford spoke to Rascon on the telephone about the election. A day or two before the election, Rascon came to the Long Beach terminal and had conversations with the employees. Both Rascon and Sanford acknowledged that they spoke to the employees about the forthcoming election. Rascon testi- fied that he individually told the employees that the drivers had plenty of work and were getting union wages and health plan; that if the Union came in, they would have to pay dues; that if the Union came in and the Company and Union didn't agree, there could be a strike; that the Compa- ny had to operate and some other people would keep it operating in the event of a strike; and that Respondent didn't like any outsiders coming in. He also testified that when he spoke to Rembolt, Rembolt told him that he was afraid the Union would hurt his family and that he (Rascon) answered that there was no way that the Union could hurt him. Sanford testified that when he spoke to the employees, he told them that they were getting union pay and benefits and that the Union might not be able to come through with its promises. He also testified that he said: why bung in outsiders? Employee David Dingee testified that Rascon said a great deal more in this conversation. According to Dingee: Rascon asked him if he was satisfied with the way things were and he replied that a few things could be improved; Rascon asked him what he thought of the coming election and he replied that he was waiting to see what everyone else thought before he made up his mind; and Rascon then told him that if the Union got in, things could change, that Respondent was pretty lax in the rules but that they could go strictly by the rules. I credit Dingee's testimony and do not credit Rascon's denials. Employee Roy Rembolt testified that Rascon's conver- sation with him the day before the election was quite differ- ent than Rascon's version. According to Rembolt: Rascon told him there was an election the next day and asked him how he was going to vote; he answered he didn't know; Rascon asked him how he felt about the Union and he replied that he wouldn't say; Rascon then asked him if he had spoken to anyone else about the Union and he acknowl- edged that he had spoken to Mulkey; Rascon said that he should not listen to Mulkey, who was a troublemaker; and Rascon asked if he had any idea how the other employees felt about it. Rembolt also testified that told him that it wouldn't do them any good even if the Union got in because the Union couldn't get them anything; that the plant could close down and leave them without a job; and that he might not even make as much as he was presently making if the 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union got in. I credit Rembolt's testimony and do not credit Rascon's denials. The evening after the election, Sanford and Rascon together confronted Rembolt. Rascon asked him how he had voted and he replied that the wouldn't say. Rascon then accused him of stabbing him in the back. Rascon also said that there were only three votes for the Union; that one was Chinery, one was Dingee and the other had to be Rembolt because he knew how the others had voted. Rascon then said, "Well, I will get all three of you guys."8 4. Conclusions with regard to the alleged interrogation and threats I find that Rascon and Simas interrogated employees concerning union activities and threatened them with re- prisals for such activities. In May, Rascon interrogated Din- gee concerning his union membership; also in May, Rascon interrogated Mulkey by asking him what he thought of the Union; shortly before the September 13, 1971, election, Rascon interrogated Dingee by asking him what he thought of the coming election and interrogated Rembolt by asking him how he would vote and how other employees felt about the Union; and after the election, Rascon interrogated Rembolt concerning how he voted. In August, Sanford in- terrogated Chinery by seeking a response to the remark "so you guys want the Union." In the context of the union drive, these interrogations in themselves would tend to interfere with employees in the exercise of rights of organization guaranteed by Section 7 of the Act. Webb Tractor and Equipment Co., 167 NLRB 383. When, as here, the interro- gation was coupled with threats against employees, the vio- lation of Section 8(a)(1) is even clearer. Rascon made these threats in May to Mulkey when he said that the plant would close if the Union came in. He also threatened Rembolt before the election when he said that the plant could close. Sanford told Mulkey and others in July that the Company would close if the Union came in; he told Dingee in August that there was a possibility that the plant could close; he told Mulkey on August 29 that the plant will close; and told Chinery also in August that the plant would probably close if the Union came in. In totality, these statements unequivo- cally informed the employees that Respondent would retal- iate against them in a way that would cost them their jobs if they chose the Union. These threats were not protected free speech but were impermissible threats of economic re- prisal to be taken solely on Respondent's own volition. N.L. R.B. v. Gissel Packing Co., 395 U.S. 575 (1969); Blaser Tool & Mold Company, Inc., 196 NLRB No. 45. Rascon's threat to Dingee a few days before the elec- tion to the effect that Respondent had been lax in enforce- ment of the rules but would go strictly by the rules if the Union got in was an unveiled threat to make working condi- tions more difficult for the employees if they chose the Union. As did the threats to close the terminal, the threat to enforce work rules more stringently violated Section 8(a)(1) of the Act. Holland Custard and Ice Cream Inc., 158 NLRB 1137, 1142. 8 These findings are based on the credited testimony of Rembolt . Rascon testified that he drank too much after the election and that he didn't remem- ber anything that happened thereafter. In his letter to employees dated September 9, Simas pointed out that bargaining could start from zero and that wages and benefits can end up better or worse. In "bargain- ing from scratch" statements such as these, the Board has looked to the totality of an employer's conduct in deciding whether the statements can reasonably be read as a threat to discontinue existing benefits or whether they are simply descriptive of a possible bargaining strategy of the employ- er. Host International, Inc., 195 NLRB No. 66. In the instant case, the "bargaining from zero" statement must be looked at in the context of Respondent's unlawful threat to make working conditions more difficult and close the plant if the Union came in as well as-the repeated instances of unlawful interrogation. Prior to the letter, Respondent had created an atmosphere of coercion. Cf. C & K Coal Company, 195 NLRB No. 196. Viewing Respondent's conduct as a whole, I find that the letter of September 9 was a threat to reduce benefits if the employees selected the Union. Aerovox Cor- poration of Myrtle Beach, South Carolina, 172 NLRB No. 97, enfd. 435 F.2d 1208 (C.A. 4, 1970). I find that, as alleged in the complaint, the Respondent violated Section 8(a)(1) of the Act by interrogating employ- ees concerning their union activities, by interrogating an employee concerning the union activities of other employ- ees, and by threatening to reduce benefits, enforce work rules more stringently, and close the terminal if the employ- ees selected the Union to represent them. B. The Discharge of Mulkey 1. The General Counsel's case Douglas L. Mulkey, Jr. was hired by Rascon as a fuel tank truckdriver on April 26, 1971. He held that job until' September 7, when he was discharged, allegedly in violation of Section 8(a)(3) of the Act. His duties were to fuel trucks at the Long Beach terminal and deliver the fuel to stations pursuant to written instructions. In his employment inter- view, Mulkey said that he had prior experience with trucks and mobile equipment and that he could do maintenance work and repairs. After Mulkey was hired, Sanford request- ed him to make occasional repairs on equipment and he did so. In July, Rascon, while visiting the Long Beach terminal, told Mulkey that he had a conversation with Simas in which Mulkey was mentioned. Simas had asked Rascon why Mul- key had been hired without any previous tanker experience and Rascon replied that Mulkey had been hired because he had prior experience with trucks and was able to take care of them. Simas also asked why Mulkey was number one truck driver and Rascon answered that it was because Mul- key was better than the rest of the truck drivers put together. A few days later, Rascon asked Mulkey what he thought of being a terminal manager. Mulkey replied that he was inter- ested in the position. A few days after that, Mulkey ap- proached Sanford and asked him if there was a serious possibility of his becoming terminal manager. Sanford re- plied that Mulkey was the most efficient driver they had and that there was a good possibility but that his age (29) might go against him .9 9 These findings are based on the credited testimony of Mulkey. Rascon's denials are not credited Sanford acknowledged that he complimented Mul- key on his work when Mulkey was working day shifts prior to July 1971. He ASHLAND OIL COMPANY In late May or early June, Mulkey contacted a repre- sentative of the Union concerning the possibility of organiz- ing Respondent's employees. From that time to his date of discharge, he was a major spokesman for the Union at the terminal. On July 22, he went to the union hall and told the business agent that he and other employees were interested in being represented. He signed a card at that time and picked up literature, stickers, and authorization cards to distribute among the employees. Within the next few days, he spoke to five or six employees at the terminal and distrib- uted literature, stickers, and cards to them. He received two signed cards back at the terminal and returned them to the union hall. Thereafter, during the rest of his employment, he intermittently spoke to the employees about the Union while at the terminal. At the time, there were six drivers including himself. As set forth more fully above, Mulkey told Sanford on August 29, 1971, that he had decided to be represented by the Union and that he had talked to other employees about it. Sanford told him that he could have fired him before and threatened that the plant would be closed down if the Union was voted in. Also in late August, Sanford told employee Chinery, in the context of a threat to close down the termi- nal if the employees selected the Union, that he (Sanford) had reason to fire a man. On September 7,1971, a little more than a week after Respondent learned from Mulkey that he was active on behalf of the Union and less than a week before the September 13 election, Mulkey was discharged. 2. Respondent's defense a. Respondent's policy and the first two misdumpings Simas, Rascon and Sanford all testified that there was a company policy to the effect that employees were to be discharged upon receipt of a third warning letter relating to derelictions of duty. However, employee David Dmgee credibly testified that he received four warning letters with- out being discharged. He received one when he had an accident and bent the exhaust stack of his truck ; he received another when he misdumped the wrong octane gasoline into a service station tank ; he received a third for running over and breaking a gas hose ; and he received a fourth for im- properly making out an invoice . Subsequently, he quit be- cause he did not like the equipment that he was assigned to. Even if there was a company policy concerning three warn- ing slips, it appears that that policy was not uniformly or invariably followed. On July 19, Juan Gomez, manager of a Sunco Service Station on Gaffee Street in San Pedro , California, called Sanford and told him that on July 16 there had been a misdump of premium octane gasoline into his regular oc- tane tank. The misdumpmg had been made even though there were metal tabs embedded in the concrete saying which tank contained premium , ethyl, and regular gasoline as well as markings in white paint . Sometime later, Sanford came and checked the records at that station . In the latter part of July, Sanford spoke to Mulkey about the misdump- also testified that he spoke to Rascon about the possibility of making Mulkey a manager 235 ing and Mulkey denied making that mistake. On August 7, Sanford called Mulkey into his office and asked him to sign a letter regarding the misdumping. Mulkey asked why he had to sign when he didn't believe that it was his mistake. Sanford replied that it wasn't important; that he was told by the Oakland office to write a report on it; and that it wasn't anything to worry about. Mulkey signed the warning notice for the misdump. The warning notice stated that further dereliction of company rules would be deemed in- subordination and dust cause for dismissal. Sanford wrote a second warning notice at the same time he wrote the first but he did not deliver the notice to Mulkey until September 7, the date of discharge. The sec- ond notice was for a misdumping that Mulkey had admit- tedly made on July 23, 1971, at a USA station in Azusa, California. Sanford found out about the second misdump- ing on July 25. He confronted Mulkey with it and Mulkey, after checking over his books, acknowledged that he had copied a number incorrectly from the dispatch sheet and had make the misdump. Sanford then said that he would try to straighten it out with the manager, and later that day he told Mulkey that he had arranged to take another load of premi- um octane to the same tank to bring the octane rating up. Sanford also told him that there wasn't anything to worry about because it had been straightened out to everyone's satisfaction. Sanford testified that he did not write up either of the warning slips at that time because he didn't want to get Mulkey in trouble and that he had not yet received confirmation of the first misdump. It is beyond dispute that misdumpings are a serious matter and that Respondent was justifiably concerned about them. Misdumpings could result in the gas station selling the wrong gas to customers and could cause serious repercussions for Respondent. Whether or not Respondent's drivers saw them, the tanks at the gas station were marked to show what type of gasoline they should contain and the drivers should have been able to avoid making misdumps. There were outstanding instructions that in the event of any questions, drivers were to call San- ford before making any deliveries. b. The third misdump and the discharge On August 19, Mulkey made a delivery to USA service station in Baldwin Park. His dispatch orders instructed him to unload 3550 gallons of regular octane gasoline into the station's number I tank and he carried out those instruc- tions. The dispatch had been made out by Roy Rembolt, who at the time was filling in as dispatcher. Rembolt ac- knowledged that the had made a mistake and put the wrong tank number on Mulkey's dispatch order. A few days later, Sanford approached Rembolt and told him that Mulkey had misdumped at the USA station. They checked the dispatch sheet and found that it was in error and that Mulkey had made the delivery the way it had been dispatched. Rembolt asked whether he was in trouble. Sanford replied that he was not and that Mulkey should have known better. Subsequently, Jim Silva, the regular dispatcher, changed the dispatch in question so that where it had said tank 1 it read tank 4. He testified that he did this for his own records after the delivery had been made. No 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one from Respondent spoke to Mulkey about the misdump until September 7, the date of his discharge. On September 3, which was the Friday before Labor Day, Sanford called Paul Moller, the president of the USA service stations, and Moller said that he had stopped buying gas from Respondent at two stations because of misdumps. Later that day, Moller received a call from Simas, and Mol- ler also told him that he had been having too much trouble with deliveries. Simas replied that he thought he knew where the problem was and there was going to be a change.10 Simas and Sanford both testified that on September 3, they had a conversation in which Simas asked who had been making the misdumps; Sanford replied that the last one made Mulkey's third misdump; and Simas told Sanford to fire Mulkey. Sanford testified that he did not tell Simas that there had been an error in the dispatch sheet for the last misdump because he did not think it was important. In his initial testimony, Simas averred that he couldn't truthfully say whether Sanford said anything to indicate that the last misdump was the result of a mistake of the dispatcher or to indicate that Mulkey had simply followed the instructions in the dispatch order. However, later in his testimony he averred that Sanford could not have told him that there was an error because, if he had known there was a mistake in the dispatch, he would not have considered the last mis- dumping to be Mulkey's fault. He pointed out that it was company policy to carefully investigate prior to discharging an employee and that if the investigation showed a logical explanation for a dereliction of duty, the employee would not be fired. He gave as an illustration the situation where an employee in Oakland was discharged because of three accidents and was taken back 2 days later when the investi- gation showed that two of the accidents were not his fault. Simas also testified that after this conversation with San- ford, he looked at Mulkey's file and found that Mulkey had been hired when he did not have 5 years' experience driving a gas truck as was required by company policy. Simas ac- knowledged that this was not the reason for the discharge because he had decided to fire Mulkey before looking at the file, but he added that Mulkey would have subsequently been discharged because of that lack of experience even if he had known that the third misdump had been the result of a mistake in the dispatch. Simas' credibility in this regard is seriously undermined by the testimony of Rascon, who averred that he did not have any knowledge of a company policy that required drivers to have 5 years of experience driving a gas truck before being hired. l Simas' credibility is further shaken by the credited testimony of Mulkey, who averred that Rascon admitted to him in July that Simas knew that Mulkey had been hired without any previous tanker experience. I do not credit Simas' testimony that Respondent considered a lack of such experience to be grounds for discharge. Further, I do not credit the testimony of Simas and Sanford that Sanford did not mention the mistake in the dispatch orders. According to Simas, such a mistake would have exonerated Mulkey from full respon- 10 These findings are based on the credited testimony of Moller. 11 Rascon subsequently testified that 6 months before the trial in this case, Simas told him that they were having a problem with inexperienced drivers and that he would like to hire drivers with at least 5 years' experience. However, that falls far short of firm company policy that would require the discharge of the drivers who had already been employed sibility and, if he had known, he would not have discharged Mulkey at that time. The matter was certainly one of major significance and Sanford's testimony that he didn't think it was important enough to mention is simply incredible. I also do not credit the testimony of Simas and Sanford that they never discussed Mulkey's union activities. Respondent had sufficient animus against the Union to commit major violations of Section 8(a)(1) of the Act and I do not believe that Sanford, who himself had engaged in unlawful con- duct, would have refrained from passing on such informa- tion to his superiors. The knowledge of a supervisor as to the union activities of an employee can be imputed to a company. Texas Aluminum Co. v. N.L.RB., 435 F.2d 917 (C.A. 5, 1970), enfg. 181 NLRB 73. Moller credibly testified that in addition to his USA gas station tanks being numbered, they are identified by a tag which shows the proper type of octane that is to be put in them. If Mulkey had been careful enough, he might have avoided the misdump in spite of the incorrect dispatch or- ders. However, Simas, who made the decision to discharge Mulkey, acknowledged in substance that if he had known that Mulkey was simply carrying out the dispatch orders, he would not have been discharged for that misdump. On September 7, the day after Labor Day, Sanford asked Mulkey if he knew that he had made a misdumping at the Baldwin Park station. Muldey replied that he did not. Sanford showed him the worksheet and Mulkey pointed out that the original copy had been altered to show a delivery to tank 4 instead of tank 1. Sanford replied that it looked as if he were right but it didn't matter because he (Sanford) was told to fire him.12 Sanford Gave Mulkey the warning slip for the July 23 misdump together with the warning slip for the August 19 misdump and discharged him.13 3. Conclusions as to Mulkey's discharge The General Counsel has established that Mulkey was considered by Respondent to be a good worker; that Mul- key was the moving force behind the Union's organizational efforts; that Respondent obtained knowledge concerning Mulkey's union sympathies and conversations with other employees; that Respondent had a virulent animosity to- ward the Union as expressed in the numerous violations of Section 8(a)(1) set forth above; that Sanford spoke about having a reason to fire Mulkey in the context of threats to close the terminal because of union activity; and that short- ly after obtaining knowledge of Mulkey's union activity, Mulkey was discharged. In the light of these findings, an evaluation must be made of Respondent's contention that Mulkey was fired solely because of mistakes he had made as a driver. Respondent had lost some business because of mis- 12 These findings are based on the credited testimony of Mulkey. Sanford acknowledged that he knew that there was a mistake in the dispatch prior to the conversation and that he told Mulkey it didn't matter because Mulkey had made deliveries to that station before and he knew where the delivery should have been made. I do not credit Sanford's version of the conversation where it conflicts with Mulkey's. 13 Subsequently in an application for unemployment insurance , Mulkey put down as a reason for discharge "dumped wrong grade of gasoline in station tanks " His explanation was that he put down the reason given by the employer for the discharge rather than his version of the reason. ASHLAND OIL COMPANY 237 dumps. Such misdumpings could be extremely damaging to Respondent's reputation and Respondent quite properly took them very seriously. If, as Respondent contends, Mul- key was discharged because of those misdumps, there would be no violation of the Act. However, the Respondent's con- tention in that regard does not bear scrutiny. The misdump of August 19, which allegedly precipitated the discharge, was the result of a mistake in a dispatch order that was made up by the dispatcher and not by Mulkey. Simas acknowl- edged in substance that if he had known, he would not have told Sanford to fire Mulkey. As indicated above, I do not believe that he was ignorant of the facts. His apparent after- thought that he would have subsequently fired Mulkey be- cause Mulkey did not have 5 years' tank truck experience is an unconvincing attempt to explain why he let the dis- charge stand. He testified that he had taken back an em- ployee in Oakland when it subsequently turned out that that employee had not been responsible for accidents attributed to him. Some explanation was needed as to why Mulkey was not taken back when it proved that his discharge had been an error. However, Simas' assertion that a company policy existed that would require the discharge of Mulkey because of his lack of experience is unconvincing in the face of Rascon's testimony that he knew of no such policy, Mulkey's testimony that Rascon admitted that Simas knew of the lack of experience as far back as July and the fact that Mulkey's work was praised by his supervisors to the extent that he was considered for a promotion. It is further noted that, even if Simas did consider Mulkey responsible for the third misdump, there was no company policy that automati- cally required his discharge as demonstrated by the fact that Dingee had received four warning letters without being dis- charged. The General Counsel has established a prima facie case that Mulkey was discharged because of his union activity. Viewing Respondent's defense as a whole, I am convinced that the reasons advanced by Respondent for the discharge and failure to reinstate Mulkey are not the real reasons and are simply pretexts which are intended to disguise the fact that Mulkey was discharged because of his union activity. I find that by that discharge and failure to reinstate, Re- spondent violated Section 8(a)(3) and (1) of the Act. IV THE OBJECTIONS TO THE ELECTION The objections to the election are based in large mea- sure on the same matters set forth in the complaint. They specifically allege the discharge of Mulkey and threats to close the terminal . As found above, the Respondent viola- ted Section 8(a)(3) and (1) by discharging Mulkey because of his union activity and violated Section 8(a)(1) of the Act by numerous threats to close the terminal. As the discharge and many of the threats to close the terminal occurred between the date the petition was filed and election, they must be considered in determining whether the election should be set aside. As the Board said in Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786: Conduct violative of Section 8(a)(1) is, a fortiori con- duct which interferes with the exercise of a free and untrammelled choice in an election . This is so because the test of conduct which may interfere with the "labo- ratory conditions" for an election is considerably more restrictive than the test of conduct which amounts to interference, restraint or coercion which violates Sec- tion 8(a)(1). I find that Respondent, by engaging in the conduct described above, interfered with the election and I shall rec- ommend that the election be set aside and that a new election be directed. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the sereral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discharged and refused to reinstate Douglas L. Mulkey, Jr. in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that Respon- dent be ordered to offer him reinstatement and make him whole for any loss of pay resulting from his discharge, by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date on which reinstatement is offered, less net earnings during that period. Such backpay shall be com- puted on a quarterly basis in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and shall include inter- est at 6 percent as provided in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging and refusing to reinstate Douglas L. Mulkey, Jr., because of his activities on behalf of the Union, thereby discouraging membership in the Union, Respon- dent has violated Section 8(a)(3) of the Act. (4) By the foregoing conduct, by interrogating employ- ees concerning their union activities, by interrogating an employee concerning the union activities of other employ- ees, and by threatening employees that it would reduce benefits, enforce work rules more stringently, and close the terminal if the employees selected the Union to represent them, Respondent interfered with, restrained, and coerced employees in the exercise of their rights guaranteed to them by Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. By discharging Mulkey in violation of Section 8(a)(3) and (1) and by threatening to close the terminal in violation of Section 8(a)(1) of the Act, Respondent interfered with the freedom of choice of its employees in their selection of a bargaining representative in the election of September 13, 1971. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed:14 ORDER Respondent, Ashland Oil Company of California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, refusing to reinstate, or otherwise dis- criminating against any employee forjoining or supporting General Truck Drivers, Chauffeurs & Helpers Union Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other un- ion. (b) Interrogating employees concerning their union ac- tivities or the union activities of other employees. (c) Threatening employees that it will reduce benefits, enforce work rules more stringently, or close the terminal if the employees select a union to represent them. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Douglas L. Mulkey, Jr., immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without preju- dice to his seniority or other rights and privileges, and make him whole for his loss of earnings in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify Douglas L. Mulkey, Jr., if he is presently serving in the Armed Forces of the United States, of his right to full reinstatement, upon application, after discharge in accordance with the Selective Service Act and Universal Military Training and Service Act. (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, person- nel records and reports, and all other records necessary to analyze the amount of backpay due. (d) Post at its Long Beach, California, terminal copies of the attached notice marked "Appendix."15 Copies of the notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's author- ized representative, shall be posted by Respondent imme- diately 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 post- ed. Reasonable steps shall be taken by Respondent to insure that said notice is not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 21, in writ- ing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.16 IT IS FURTHER RECOMMENDED that the election held on September 13, 1971, in Case No. 21-RC-12310 be set aside, and that said case be remanded to the Regional Director for Region 21 to conduct a new election at such time as he deems the circumstances permit the free choice of a bar- gaining representative. 14 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, 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. 15 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 National 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." 16 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the 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 Pursuant to the recommended Order of a Trial Exam- iner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: After a trial at which all sides had a chance to give evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the National Labor Rela- tions Act, and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization; To form, join or help unions; To bargain collectively through a representative of their own choosing; To act together for collective bargaining or other mutual aid or protection; To refrain from any or all these things except to the extent that membership in a union may be required pursuant to a lawful union-security clause. WE WILL NOT do anything that restrains or coer- ces employees with respect to these rights. More speci- fically, WE WILL NOT discharge, refuse to reinstate, or oth- erwise discriminate against employees for joining or supporting General Truck Drivers, Chauffeurs & Help- ers Union Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union. WE WILL NOT interrogate employees concerning their union activities or the union activities of other employees. WE WILL NOT threaten employees that we will re- duce benefits, enforce work rules more stringently or close the terminal if the employees select a union to represent them. ASHLAND OIL COMPANY WE WILL offer full reinstatement to Douglas L. Mulkey, Jr., with backpay plus 6 percent interest. WE WILL notify Douglas L. Mulkey, Jr., if he is presently serving in the Armed Forces of the United States, of his right to full reinstatement , upon applica- tion, after discharge in accordance with the Selective Service Act and Universal Military Training and Service Act. ASHLAND OIL COMPANY OF CALIFORNIA (Employer) Dated By 239 (Representative) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material . Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014 , Telephone 213-688-5229.