New England Bituminous Terminal Corp.

32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New England Bituminous Terminal Corporation and Local Union No. 251, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 1-CA-7861 November 7, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On June 16, 1972, Administrative Law Judge' John M. Dyer issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge except as to the alleged 8(a)(1) interrogation. The Board finds, in accord with the General Counsel's excep- tions, that the facts as set out by the Administrative Law Judge, with respect to Respondent's interroga- tion of Saucier on July 28, warrant finding that interrogation to be violative of Section 8(a)(1).2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, New England Bituminous Terminal Corporation, Providence, Rhode Island, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating employees or appli- cants for employment about their union activities or those of other employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its location at Providence, Rhode Island, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to 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. (b) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. i The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. E Inasmuch as Saucier was seeking reemployment from President Hudson at the time of Hudson's postdischarge interrogation of Saucier as to employees' union activity, we find, contrary to the Administrative Law Judge, that such interrogation was violative of Sec. 8(a)(1) Augusta Chemical Company, 83 NLRB 54, 74, In 47. 3 In the event that this Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully interrogate any employees or applicants for employment about their union activities or those of other employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their Section 7 rights to self- organization, to join or assist Local Union No. 251, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. NEW ENGLAND BITUMINOUS TERMINAL CORPORATION (Employer) Dated By (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 compli- ance with its provisions may be directed to the Board's Office, 7th Floor, Bulfinch Building, 15 New 200 NLRB No. 7 NEW ENGLAND BITUMINOUS TERMINAL CORPORATION 33 Chardon Street, Boston, Massachusetts 02114, Tele- phone 617-223-3300. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN M. DYER, Trial Examiner: On September 13, 1971,1 Local Union No. 251, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein referred to as Local 251, the Union, or the Charging Party, filed the instant charge against New England Bituminous Terminal Corporation, herein re- ferred to as the Company, the plant, the terminal, or Respondent, alleging that the Company had violated Section 8(a)(1), (3), and (5) of the Act. The Union had previously filed a charge on August 18 in Case l-CA-7814 alleging violations of Section 8(a)(1) and (3), but this case was withdrawn when the instant charge was filed. Prior to the filing of the instant charge Respondent had filed a representation petition in Case 1-RM-811 seeking an election for a production and maintenance unit at the Company. Following some delay while the instant case was being investigated the RM petition was dismissed and the Regional Director on December 16 issued a complaint in this matter alleging, in addition to the jurisdictional and service allegations, that Respondent had violated Section 8(a)(1) of the Act by discharging Wilfred Saucier on July 27, by refusing to reinstate three alleged unfair labor practice strikers on August 25, and by its interrogation of Saucier on July 28. Respondent in its answer denied that it was engaged in commerce within the meaning of the Act, admitted that it discharged Saucier on July 27, but stated it was for just cause, and denied that the employees had engaged in a strike to protest Saucier's discharge, or that John J. Hudson, president of Respondent, had unlawfully interro- gated Saucier. All parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally at the hearing held in Providence, Rhode Island, on March 16, 17, and 30, 1972. Briefs have been received from General Counsel and Respondent and have been fully considered. The questions to be resolved in this case depend on the answer to the first question, which is whether Respondent discharged Saucier for cause or whether Respondent was motivated at least in part because Saucier assertedly engaged in protected concerted activities. Dependent on the answer to this question are two more questions, first whether the strike engaged in by the employees starting on July 29 was an unfair labor practice strike or an economic strike, and second whether John J. Hudson engaged in unlawful interrogation of Saucier on July 28, the day after Saucier's discharge. In resolving these questions it has appeared that both Respondent and General Counsel's witnesses in certain instances tended to exaggerate their testimony. However there appear to be more inconsistencies and discrepancies in General Counsel's case and there are some independent facts which fit more naturally into and are corroborated by Respondent's defense. I have concluded that although there may be some doubt, it cannot be found that Saucier's discharge was predicated at least in part on any of his alleged concerted activities. On the entire record in this case including my evaluation of the reliability of the witnesses based on the evidence received and my observation of their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT AND THE UNION It was stipulated that John J. Hudson, together with a different other stockholder in each instance, owns John J. Hudson, Inc., and New England Bituminous Terminal Corporation. John J. Hudson, Inc., annually imports into the State of Rhode Island, liquid asphalt products valued in excess of $50,000, which products are stored in the tanks of New England Bituminous Terminal Corporation and are released from that corporation at the order of John J. Hudson, Inc., for its own use or upon its sale to other users. For its warehousing of the liquid asphalt products New England Bituminous Terminal Corporation annually re- ceives fees from John J. Hudson, Inc., in excess of $50,000. It was further testified that between 50 and 52 million gallons of liquid asphalt annually flow through Respon- dent's tanks. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits and I find that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Undisputed Facts Until 1955 John J. Hudson, herein referred to as Hudson or J. J., was a member of the Union and presumably a truckdnver hauling asphalt. He organized John J. Hudson, Inc., herein called Hudson Co., in October 1955 to import and sell liquid asphalt products in Rhode Island. In 1962 Respondent was formed to warehouse the liquid asphalt. Two of Hudson's brothers work for Hudson Co., one of them, Thomas, is a union member who drives a truck and the other brother, Frank, works at the Hudson Co. plant. Hudson Co. has a contract with the Union and has had since it was organized in 1955. Hudson Co. and Respon- dent are located a short distance apart and there is a direct telephone line between their offices. J. J. retains direct control over both companies and gives orders at Respon- dent through Walter S. Miller who is Respondent's manager and engineer and through Lionel Howkins whom Hudson described as a leadman or straw boss. Prior to 1970 when Miller was added to the staff, Lionel Howkins was the only person with any supervisory indicia present at Respondent since Hudson, Brosseau, et al., have their offices at Hudson Co. Robert Brosseau and Frank Hudson work at Hudson I Unless stated otherwise all dates refer to 1971 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Co. but in J . J.'s absence first Brosseau and then Frank Hudson are in charge of Respondent . The chain of authority then goes to Miller and Howkms. Due to the status that Howkms held prior to Miller 's advent there was some disagreement as to their relative status when Miller was added. Miller was finally made responsible for the plant and the engineering, and the assignment and scheduling of the men was handled between Hudson and Lionel Howkins. Before a timeclock was installed at Respondent, How- kins kept the time for the men. If a man neglects to punch in or out Howkins may initial his timecard to indicate the man's actual workhours and the individual 's pay is based on this certification. Any job hazards are to be reported either to Miller or Howkins, both of whom have night telephones. Hudson testified that a shift man in the event of trouble can call Hudson or another of the supervisors whose names and phone numbers are on a list in Respondent's office. If assistance in machinery procedure was needed, Howkins would probably be called. The plant is basically a three -shift operation during the "season," which runs from late February to almost Christmas time. From around Christmas until late Febru- ary the plant is closed down and maintenance work is performed on a one-shift basis . During this period the Company accepts suggestions from employees for im- provements, and maintenance work which could not be performed during the "season" is accomplished. During the "season" a three-shift operation is maintained, the furnace used to heat the liquid asphalt is turned off on Saturday afternoon and is restarted Sunday evening with the plant essentially shut down Saturday night through Sunday afternoon. The plant is located on the riverfront near Providence and consists of a 4-acre site. In addition to the office there are some 10 or 11 tanks of varying sizes which contain liquid asphalt . Two of the tanks, Nos. 7 and 8, are overhead tanks from which liquid asphalt is loaded into truck tank trailers. These two tanks each have a capacity of around 200,000 gallons of liquid asphalt . Respondent prides itself in being able to weigh in, load, and weigh out a tank truck in some 13 minutes. In order to move the liquid asphalt it is maintained at a rather high temperature, ranging upwards of 300 degrees . A system called a "hot oil transfer system" is used and hot oil runs through miles of pipe warming the asphalt to keep it mobile. Respondent has some insulated tanks which it attempts to keep filled with heated liquid asphalt. The asphalt is pumped from these to the overhead tanks from which the tank trailers are filled. If hot liquid asphalt is received from a carrier, it may be pumped directly from an unmsulated tank to the overhead tanks since its temperature may be fairly high. The insulated tanks allow Respondent to keep a reserve of heated liquid asphalt to be transferred to the overhead tanks. Respondent receives liquid asphalt from boats and barges from which it is pumped directly to its storage tanks. The whole system is heavily automated but there are a number of valves, pumps , and gauges to be watched. The system is such that packing glands in the various valves start to leak after a short time unless they are continually tightened or repacked. Spillages from valves or from tank trailers being loaded, are sanded so that the liquid asphalt is not tracked all over the lot. Heat gauges on each of the tanks must be viewed on occasions during the shift to see that they stay within a normal heat range since if the material gets too hot it may burst into flame, as one storage tank did several years ago. Because of the flammable nature of the business fire extinguishers are maintained throughout the plant and a foam system has been installed. Since the plant is automated the 4 to 12 p .m. shift and the 12 to 8 a.m. shift are usually run by one man. On the day shift, Miller and Howkins, are usually present, plus shift men and helpers. There is some conflict as to how often Hudson visits the plant, but whether it was several times a week or a day there is agreement that he was on the phone to the plant frequently. Howkins assigned men to their work tasks and set up the schedules with Hudson's approval. He is the only one who works a 7:30 to 5 p .m. shift which overlaps all three shifts. The other men work an 8-hour shift so that Howkms is at the plant to check on what happened on the third shift, is there for the first shift and remains at the plant for the first hour of the second shift . The orders for the succeeding shifts are given directly to the second-shift man and passed verbally or by a note to the third -shift man from Howkins. Two log books were kept , one which logs any actions taken at the plant, including the pumping from tank to tank and the conditions of the furnace . The other log book concerns the truck tank trailers which were loaded at the plant. Tank trailers are weighed when they come into the plant, are loaded, and weighed out after loading. Weight tickets are signed by the truckdnvers with the amounts of the asphalt loaded and the tickets are computed by the lab man the following day. With some slight exception it seems agreed that the duties of a shift man are to fill the proper tanks, check gauges and heat gauges in the yard and on the tanks themselves, check valves, maintain the yard, sanding or picking up spillages, and cleaning and maintaining the office. It was only during the latter stage of the hearing that Saucier stated for the first time that he had been told a man was coming in on Saturday to wash and wax the floors in the office. All the other testimony was that the shift man was to clean and maintain the office and lavatory on each shift. This latter testimony from Saucier would appear to confirm that he had not cleaned the office or the lavatory the night of July 23-24, and that as others testified the plant was dirty with the trash cans overflow- ing. B. Wilfred Saucier's Discharge Saucier applied for work at Respondent in September 1970, while he was employed as a driver-salesman for the Pepsi-Cola Company and delivered Pepsi -Cola to Hudson Co. and Respondent. After completing an application he was sent by Hudson to be interviewed by Miller. Miller recommended he be hired as a shift trainee and Hudson approved. Saucier started to work in October 1970 and worked through the winter . In the springtime he told Miller he felt he was qualified to operate a shift and Miller NEW ENGLAND BITUMINOUS TERMINAL CORPORATION 35 agreed, but before Miller could speak to Hudson about it Saucier approached Hudson and asked to be moved to a shift and his pay raised. He was put on as a shift man at an increase in pay. Saucier testified that during lunchtime in January when most of the men were eating together at the office and while Howkins was present, it was mentioned that they wouldn't have problems if they had benefits like the drivers at Hudson Co. had. According to Saucier, Howkins said that if they mentioned union around there they, would be fired. Saucier later admitted that according to his affidavit this conversation occurred in December 1970. Saucier testified that in April the subject of union came up at lunch and again Howkins said that if they talked union around there they could be fired. As to his complaints concerning conditions at the plant, Saucier testified that he complained to Howkins regarding the size of the bathroom about I month before his discharge and had complained to Howkins about leaking seals in the pump area about 2-1/2 months before his discharge. He said he spoke to Howkins in regard to the pay of a fellow employee, Santos, who had been hired in April. Santos told Saucier he didn't understand his pay rate and Saucier asked Howkins about it. Howkins said Saucier had told him Santos didn't understand his pay rate and testified he had taken the matter up with Hudson and provided Santos with the answer directly. Saucier testified that the men complained to him about various other subjects and he in turn complained to Howkins about them. A fellow employee, McCann, testified that he com- plained to both Howkins and Saucier about the lighting at the top of the tanks. He testified he talked to Saucier about this and other things because Saucier did a lot of talking and complaining for everybody. McCann testified that he also talked about his complaints to another employee, Richey, and to Howkins as well. The only other predischarge complaint which Saucier could remember concerned Respondent's hospitalization benefits. When his daughter was injured, he asked questions about how to get the benefits and was referred by Howkins and by Brosseau to the insurance carrier. He said he had received meager benefits. He did not testify that prior to his discharge he complained to Howkins or to any respondent official concerning any inadequacies of Respondent's hospitalization plan. On July 23 and 24, Saucier was scheduled to work a double shift, the 4 p.m. to 12 shift on July 23 and the 12 to 8 a.m. shift on July 24. He had bought a camper and had it with him at work that evening. According to Saucier he spent about 15 minutes during his first shift painting the roof of the camper, stating he had received permission from Howkins to do so and that he only did so after he had caught up the work at the plant. According to Saucier, Tom Hudson, J. J.'s brother, came to the plant twice during his two shifts, once while he was painting the top of the camper and a second time while he was eating lunch after midnight in the plant office. J. J. testified that he became suspicious of Saucier's work in May and felt that his quality and attitude were declining. He testified that Saucier and McDonald, the man who regularly followed Saucier on his shift, were not getting along and that on two occasions the furnace had been left by Saucier in an inoperable state so that McDonald couldn't start it. Saucier did not dispute that he and McDonald did not get along. J. J. used the term "sabotage" and said he was not satisfied with the explanation given about why the furnace would not start. Saucier testified on rebuttal that if there was some problem with the furnace and the flame eye was removed, it was possible for someone to knock the ignition wire loose from the spark plug in the furnace and it would not be noticed. The explanation Saucier provides does not quite meet the problem which bothered Hudson that the furnace was inoperable when it was to start up. In any event Hudson at the end of May asked his brother Tom to engage in surveillance of Saucier's work and his method of stopping the furnace on Saturdays. Tom Hudson testified that he made it a practice of dropping in on Saucier at the plant particularly when the furnace was being shut down on Saturdays. Tom Hudson testified that on the evening of July 23 he pulled into the plant in a car early during the second shift and saw Saucier up on a stepladder painting the top of his camper. He stayed there and talked to Saucier some 10 or 15 minutes, during which time Saucier continued to paint his camper. Tom Hudson stated he left in his borrowed car and returned to the terminal some 3-1/2 hours later around 10:30 p.m. driving a pickup truck. He testified that when he entered the plant no one was around and he looked for Saucier to help him unload some steel which was in the back of the truck. Finally he went to the camper and looked inside and found Saucier inside with a rod of some type in his hand. He got Saucier to help him unload the steel and left. He returned about 1:30 a.m. and Saucier who w's in the office drinking some tea, asked if he wanted some and he said no, drank a bottle of pop and left after a half hour. He stated that at that time the office was dirty, with the wastebasket overflowing. Tom Hudson met his brother J. J. the following morning around 10 a.m. and reported what he had seen at the terminal the previous evening, stating it appeared to him that Saucier had spent most of the shift working on his camper. Ralph Richey followed Saucier and was on the 8 a.m. to 4 p.m. shift on Saturday, July 24. During that day Hudson called Richey and asked about the condition of the office and the amount of work Saucier had done. Richey told Hudson that the office had been left dirty and that he had to pump for 6 hours to fill No. 5 tank. Hudson testified that he decided over that weekend to discharge Saucier but was out of town on Monday and on Tuesday called Howkins and told him to discharge Saucier when he came to work. Hudson testified that he did not discharge Saucier though he worked on Sunday because it would have been very difficult to find a replacement for him on Sunday. As Saucier drove into the plant to go to work on Tuesday, July 27, at 4 p.m., he was met by Howkins who told him he was discharged. According to Saucier, Howkins said he didn't know why but had told Hudson Saucier was one of his best men. Saucier left and went to 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Hudson Co. offices but Hudson was not there, and he was told by Frank Hudson to leave and to come back later to see Hudson. On Wednesday, July 28, Saucier met with Hudson at his office. Saucier said he asked Hudson why he was fired and Hudson replied that he didn't need him running his plant, that he had other people to do that. Saucier asked what he meant and Hudson told him to go home and think about it. Saucier said he would like to get it ironed out and Hudson said, "think about it, you're always bitching." Saucier said about what, and Hudson said, "you think about it." At that Saucier mentioned a number of things he said he brought to management's attention through Howkins such as inadequate hospital policy, hazardous conditions, fires being unreported, fire extinguishers not being available or being empty, complaints about the latrine facilities being inadequate, and asked whether it was those things or because of his union activities. In respect to the hospitali- zation policy, he stated that Hudson called in Brosseau, asked what was wrong with the policy, and told Brosseau to get the best one that he could. Saucier testified that on his next visit Hudson gave him a Blue Cross application and said it was being installed at the Company. Regarding the Union, he said Hudson wanted to know why they wanted a umon. Saucier said they wanted a umon for better pay and benefits and improved working conditions. He said Hudson asked who was involved, whether any of the drivers or the union steward from Hudson Co. had talked to the men about it, and whether Hallberg or other individuals were involved. Saucier said Hudson told him he wouldn't discharge anyone else, and he told Hudson that it was McCann who had solicited him to join the Union. He asked Hudson if he could go back to work and Hudson told him to come back later, he was going to check into the information Saucier had given him. Saucier's testimony on the sequence of events and dates was somewhat erroneous . He said that after this first session with Hudson he returned the following day (July 29) and Hudson said he hadn't checked things out and told him to return the following day (July 30) but gave him a Blue Cross card, telling him to fill it out so if he came back to work he would be covered. After several changes in dates Saucier testified that it was in the afternoon of July 28 that he returned, and Hudson gave him the Blue Cross card. This testimony seems too pat since the two visits with Hudson occurred in the morning and afternoon of the same day. It seems highly unlikely that a complete hospitalization program would be brought in and applica- tions distributed and the old plan discarded in a matter of two or three hours considering that it is a group program and there would have to be information obtained and a contract negotiated and prepared. I credit the testimony of Brosseau that the Company had been negotiating with Blue Cross for some time on the installation of a program and that agreement was reached a week or more before Saucier's discharge. It is felt that Saucier is reaching to claim credit for the initiation of this program in an effort to make himself appear as the spokesman of the employees. It is possible that he believes so, but I cannot credit him with this and feel his "spokesmanship" is overdrawn and not to be believed. Hudson's version of the postdischarge interview is different. He testified that Saucier asked why he was discharged and whether he could have his job back. Hudson told him he knew why he was discharged and could not have his job back. Saucier pleaded for his job and started telling Hudson about the inadequacies of the terminal employees such as Miller and Howkins not getting along; that laboratory employee Hallberg fooled around a lot and wasn't doing his job; that Santos had worked for a week on his shift and was not a willing worker ; that Seleyman was illiterate and couldn 't read the papers and could not make out a ticket or decipher proper tickets and shouldn't be employed there ; and that Roland Anderson was worthless , didn't do his work, and wasn't capable of keeping his end up . According to Hudson, Saucier added that McCann really couldn't handle a shift and should be rotated despite his having problems with his leg; that Howkins was not keeping up plant repairs properly and wasn't reporting fires, and that there were a number of fire hazards that hadn't been checked. Hudson said that when Saucier asked why he was fired he replied that Saucier knew exactly why he was fired , and when Saucier said he didn't know that he told him it was because Saucier had been working on his camper . Saucier said he had permission from Howkins to work on the camper and use the paint. Hudson told Saucier that Howkins couldn't give him permission, had no right to do so, and he didn't appreciate Saucier's working on a camper when he should have been doing his work , and that he had been observed during the night working at great length on his camper and not performing his duties . He told Saucier he had not cleaned the restrooms , done any of the housekeeping, emptied any baskets, or done anything else that he was supposed to do . He added that he had checked and Saucier had not performed his work in that it had taken Richey some 6 to 6- 1/2 hours on the following day to fill tank No. 5 which Saucier should have done . Hudson said he told Saucier to come back that afternoon or the following day because he wanted a chance to look at the log and check Saucier's claims and see whether the plant and the employees were as inadequate as Saucier had described. Hudson did not recall giving a Blue Cross form to Saucier. Saucier did not report back on July 29 since a picket line went up that day and Saucier after talking to Shalpak, the union representative, started to picket. Hudson had no recollection of any discussion with Saucier about the Union during the conversation on July 28. Hudson said he had never had any complaints from Saucier concerning any sanitary, health, or safety conditions prior to this conversation with him and that he had never received any complaints about such from Saucier through Howkins. Howkins testified that if someone complained to him about plant conditions he would give them his standard reply to take it up with the boss , J. J. Hudson, except when the complaint interested him in which event he would personally take it up with Hudson. Howkins testified that Saucier did bring Santos' problem concerning his pay to him and that he personally investigated it and gave the answer to Santos. The General Counsel asked some questions during cross- examination which would indicate that the Company did NEW ENGLAND BITUMINOUS TERMINAL CORPORATION not expect too much work out of night men. Howkins stated that Hudson insisted that if the men were to get 8 hours' pay they were also to do 8 hours' work, and said there was always work to do in cleaning up, packing valves, tightening valves, checking gauges, cleaning the office, or cleaning the exterior. One other question asked by General Counsel indicated that a ship was expected in with hot asphalt and that for that reason Saucier had not filled up tank No. 5. The testimony, however, was that a ship had already been in and left and that there was hot asphalt in tank No. 4 which was umnsulated. Saucier testified that he had had instructions from Howkins not to fill tank No. 5, that his relief, Richey, could do so on the following day. Howkins disputed this testimony and stated that the standing orders were always to fill the overhead tanks, Nos. 7 and 8, and to fill the insulated tanks, such as No. 5 with hot asphalt so that the matenal would be kept hot over the weekend for the following Monday and in that way they would have a jump on the work by having the matenal hot. Saucier's testimony appears to be illogical. It does not make sense to leave hot material in an uninsulated tank to cool off when it could be pumped into an insulated tank and its heat level maintained higher than if it had been left in an uninsulated tank. Further, it would seem that the Company would be busier filling tank trucks during the daytime than it would on either the 4 to 12 or 12 to 8 shifts, when Saucier was working. The log shows that Saucier had plenty of time to have filled No. 5 tank from the uninsulated No. 4 tank on either of his shifts and not left it for Richey to do the following day. Howkins denied leaving the orders Saucier ascribed to him. Howkins also denied ever giving permission to Saucier to paint his camper or do anything other than the normal work expected at Respondent. In his original testimony Saucier had testified that he had filled his tanks up before shutting off the pumps. This in essence was not true since he had not filled up No. 5 tank. It is impossible to tell from the log exactly how much work a person performed on a shift since a lot of the work is not logged because it is routine. It is possible to tell what work was not done on a shift from the log. For instance it is possible from the log to tell that the No. 5 tank was left about three-quarters full and was not filled as Saucier admits since it took some 6 hours on the following shift for Richey to fill it. I do not credit Saucier's claim that he was told not to fill No. 5 tank because it makes no sense for him not to do so when from the log and his doing personal work, he had sufficient time to do so and it is contrary to common sense to leave heated matenal in an uninsulated tank which could have been pumped into an insulated tank. If the material in No. 4 tank had still been hot enough on Monday it could have been pumped to the overhead tanks while the heated material in No. 5 tank was held in reserve and less work from the furnace would have been needed. On July 29 when he got to Respondent, Saucier found a picket line and was told not to bother entering the plant since Union Representative Shalpak had already seen Hudson about the dischargees' jobs. Saucier, after waiting a short while, was told by Shalpak that he had seen 37 Hudson that morning and that Hudson was not going to put any of the men back to work and that the only way Saucier could possibly get his job back was to join the picket line and picket for his job. Although the testimony is in some conflict, it appears that there is more internal contradiction in the testimony from Saucier than there is in the testimony from Respon- dent. For example, using copies of the log which were kept by Saucier on the evening of July 23 and the morning of July 24, it appears that he pumped from No. 4 tank (umnsulated) to overhead tank Nos. 7 and 8 for a total of 2 hours and 45 minutes. He did no pumping whatsoever after that time, so that there was no pumping at all on the 12 to 8 a.m. shift but merely the loading out of five tank trucks from Nos. 7 and 8 overhead tanks. Richey, who followed Saucier, filled tank Nos. 7 and 8 and may have filled some tank trucks. He also pumped for 6 hours from No. 4 tank to No. 5 tank. Saucier appeared to be the only one to testify that there was no standing instruction to keep No. 5 tank filled because it is insulated and would retain the heat of the liquid asphalt. Asphalt cannot be discharged or moved unless it is kept at a high temperature. Therefore, it is necessary to heat it or keep it heated in order to discharge it. Respondent had received a shipload of liquid asphalt, a portion of which was in uninsulated tank No. 4. It would appear to be not only commonsense but in violation of what the others testified to were standing orders, not to keep No. 5 filled since it was insulated and could retain the heat. It does not appear from the testimony to be necessary to stand by a pump for the whole 6 hours while the matenal is being transferred. No reason is apparent other than Saucier's claimed orders from Howkins why Saucier did not fill No. 5 tank on his shift. As indicated I do not credit his testimony that he was told not to pump to No. 5 tank and that Richey could do it on the following shift. The fact that Saucier did not bother to fill No. 5 tank under what Hudson said were standing orders, would appear only to confirm Hudson's suspicions and the report of his brother Tom that Saucier spent at least most of one shift working on his camper. I credit the testimony of Tom Hudson that he visited the terminal three times during the two shifts on July 23 and 24. Hudson appeared to make an effort to adhere to what he had observed, although on one occasion during his testimony he gave his impression but when challenged on it reported the facts on which he based it. I cannot say the same in all events for Saucier who appeared to have trouble on some occasions remembering when certain events took place and their sequence and appeared to me to attempt to stretch the facts to give an impression that he was the spokesman for the employees. The situation which faced Hudson on Saturday, July 24, was that he had a report from his brother, Tom, that Saucier had apparently wasted most of his time on at least one shift doing personal work on his camper, since, according to Tom Hudson, he found Saucier painting the camper once and working or being inside of it on a second visit. The log appears to back up this report in that the standing instructions to fill No. 5 tank were not followed necessitating Richey's pumping some 6 hours to fill the 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tank on the following shift. Hudson also checked with Richey on the condition of the office and Tom's report that it was dirty was again confirmed . Hudson had been suspicious of Saucier since May, noting that Saucier wasn't getting along with the man following him on the shift and suspecting that Saucier had left the furnace inoperable on two occasions. With these prior suspicions and the evidence of little work done on the double shift , Hudson decided to discharge Saucier. He did not discharge him on Sunday, stating that it would be hard to find a replacement on that day. Hudson was gone on Monday and on Tuesday gave instructions to Howkins to discharge him without even telling Howkins the reason why. Respondent's defense as credited presents good grounds for the dis- charge. The question remaining is whether the discharge was based solely on these grounds or whether Saucier had engaged in concerted activities of which Hudson was aware and if that was one of the reasons for his discharge. Saucier's claimed complaint activities did not include any direct complaints to Hudson or Miller but consisted solely of some statements to Howkins . As he recounted them, Saucier had talked to Howkins about the size or condition of the bathroom about a month prior to his discharge and about leaking seals in the pump area about 24/2 months prior to his discharge . He also spoke to Howkins about Santos' pay problem . This latter point Howkins acknowledged and stated that he had procured an answer from Hudson and given it directly to Santos. Saucier did not specify any other complaints but stated that in either December or January and again in April during lunchtime conversation about general conditions, Howkins said that talk about a union could lead to discharge. One of the General Counsel 's witnesses testified that he had complained to Miller , Howkins, and Saucier about inadequate lighting on one of the tanks which was later fixed but there is nothing to show other than this statement and Santos' complaint about his pay that Saucier was ever regarded as any type of spokesman for the men in complaining to management about their problems. Indeed, this appears more in the nature of conversation among employees regarding conditions than a complaint to a spokesman . These complaints by Saucier's admission were somewhat remote from the time of his discharge. There is no evidence that any of these complaints went beyond Howkins to Miller or Hudson or that Hudson or Miller ever heard of them. Hudson specifically denied hearing from Howkins or Miller that Saucier was complaining on behalf of the men and it was Hudson's sole decision to discharge Saucier without conferring with either Howkins or Miller. Hudson did acknowledge that during the conversation on July 28, after he told Saucier that he was discharged and to think about what he did, that Saucier mentioned a number of things and complained about a number of the men and their inadequacies . Hudson acknowledged hear- ing these complaints from Saucier but not any others. Hudson told Saucier that his discharge was for working on his camper during his shifts, on July 23 and 24. On the basis of the testimony I cannot conclude that Saucier was a spokesman for the employees or was considered as such by management or that he was engaged in concerted activities with or on behalf of the men, at any point relevant in time to his discharge . It is clear from Saucier's testimony as well as that of Howkins that Howkins did not know the reason for the discharge when he told Saucier that he was discharged . This would tend to confirm that the discharge was not caused by Saucier's asserted complaints to Howkins. I therefore conclude and find that the discharge of Saucier was initiated by Hudson for cause and that Saucier had not engaged in proximate concerted activities which were known to Hudson , and therefore, any concerted activities by Saucier did not play a part in this discharge. The next question is whether Hudson violated Section 8(a)(1) by his alleged interrogation of Saucier on July 28 concerning his union activities or the activities of other employees . I have just found that Saucier was discharged for cause on July 27 . It would therefore follow that since Saucier was not an employee on July 28 , any interrogation of him was not interrogation of an employee and therefore not illegal. Hudson testified that he did not recall the Union being mentioned during the conversation on July 28 and denied that he had asked any questions as to who was engaged in union activities . Saucier said that in detailing his prior complaints to management, he asked if signing a union card was the reason for his discharge . He testified that Hudson then asked him who else had engaged in union activities and whether specific individuals had solicited membership in the Union. It is possible that there was some conversation about the Union between Saucier and Hudson, but I think they each overstated their testimony at this point. If Saucier had been an employee at this point I would probably find that Hudson engaged in interrogation of him principally because Hudson did not deny the allegation but stated he did not recall it. Hudson's testimony was most precise on practically all other points. However, since I have found that Saucier was discharged for cause on July 27, he was not an employee on July 28, and I would dismiss the allegation of 8(a)( 1) interrogation. C. The Strike and Picketing On July 28 Union Representative Shalpak received five union cards from employee McCann. Saucier's union card was received later . Hallberg, Saucier, and McDonald were discharged on July 27 or 28. On the morning of July 29, Shalpak met with Hudson at Hudson's office and asked that the three men be put back to work , asserting they had been unfairly discharged . Shalpak stated that Local 251 represented the dischargees and the men at the plant and sought recognition of the Union as the bargaining agent for the terminal employees . Hudson said he would not put the men back to work and denied that the Union represented the dischargees or the plant employees. When Shalpak left Hudson's office he contacted Hallberg and told him that Hudson refused to put any of the dischargees back to work and the only way they would ever get their jobs back would be to picket for them. He gave Hallberg arm bands which had the legend "picket" and instructed Hallberg where to picket Respondent's premises. When Saucier appeared to see Hudson on the afternoon of July NEW ENGLAND BITUMINOUS TERMINAL CORPORATION 39 29, Hallberg told him to join the picket line. Saucier refused until he talked with Shalpak who told him that Hudson refused to put any of the dischargees back to work, and the only way he would ever get his job back was to join the picket line. Picket areas were established near the entrances to Respondent's Plant. On that or the following day they were joined by three other employees, Santos, McCann, and Seleyman. Together these six men picketed Respondent for about a month. The signs which they used were in most cases homemade and during some period of the time one or more signs said that Local 251 was on strike. There is a dispute as to how long this legend was visible outside the plant, with the Union saying 3 days and Respondent saying 2 weeks. In any event, it is clear from the testimony that the three employees who joined the strike were protesting the discharge of Saucier and the other two employees, apparently believing the discharges were motivated by an antiunion sentiment. Having determined that Saucier was discharged for cause, the strike cannot be an unfair labor practice strike but is necessarily an economic strike which from the testimony had its inception as a protest of the discharges. Respondent maintains that it was a recognitional strike. There were no signs so indicating nor were there repeated demands for recognition by the Union, although this could have been an unstated but partial reason for the strike. The next contact between the Union and Respondent was a letter dated August 25, signed by Shalpak calling off the strike and offering on behalf of McCann, Santos,2 and Seleyman to return to work. The three men went to the plant two days after the date of the letter and not finding Hudson talked to Robert Brosseau, who told them he knew nothing of the letter or the offer and if they wanted to see about getting their jobs back they would have to contact Hudson. The three men left and there was no further contact by them with the Company. A letter dated August 27 from Shalpak to the Company 2 Santos testified, and it was not disputed, that on the first day of the picketing he was out at the picket line preparing to join it when Hudson appeared and told him to come in and work or he would be fired. He worked that day but joined the picket line the following day There is no allegation in the complaint concerning this alleged action and it was not litigated by Respondent. Therefore no resolution of the action or violation finding will be made. requests the return to work of the strikers and the dischargees noting that the three strikers had reported for work that day and had not been allowed to return. The letter also requests recognition of the Union and bargain- ing for a production and maintenance unit at Respondent. Hudson's reply, dated September 2, states he doubts that the Union represents a majority of the production and maintenance unit and says the Company has no vacancies for McCann, Santos, or Seleyman since all the job openings were filled on a permanent basis . Brosseau testified that as far as he knew there had been no openings since that time. Respondent shortly thereafter filed the RM petition mentioned above. Having found that the strike was not an unfair labor practice strike, it follows that the strikers were economic strikers. This case was not tried under the theory of Laidlaw, 171 NLRB 1366, and no order appropriate thereunder is being entered here, but it would appear that the three strikers might fit into the second category mentioned in that case, of economic strikers who uncondi- tionally apply for reinstatement at a time when their positions have been filled by permanent replacements, and that they remain employees entitled to full reinstatement upon departure of the replacements unless they have acquired regular and substantially equivalent employment in the meantime. In accordance with these findings I would dismiss that section of the complaint which alleges that Respondent violated Section 8(a)(1) by refusing to reinstate McCann, Santos, and Seleyman. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 3 ORDER The complaint is dismissed in its entirety. 3 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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.