Cherokee Pipe Line Co.

560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cherokee Pipe Line Company and Craig Deering. Case 14-CA-6891 March 20, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 18, 1973, Administrative Law Judge Sydney S. Asher issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, and Respondent filed an answering 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 briefs and has decided to affirm the rplings, 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Cherokee Pipe Line Company, Hartford, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION SYDNEY S. ASHER, Administrative Law Judge: On June 5, 1972, Craig Deering, an individual, filed charges against Cherokee Pipe Line Company, herein called the Respon- dent, Hartford, Illinois. Based on these charges, the General Counsel of the National Labor Relations Board, herein called the General Counsel, on July 24, 1972, issued a complaint alleging that since on or about December 6, 1971, the Respondent has interfered with, restrained, and coerced its employees in certain specified respects, and that the Respondent discharged Craig Deering, an employee, on or about May 31, 1972, and since then has refused to reinstate him, because he joined or assisted Oil, Chemical and Atomic Workers International Union, AFL-CIO, herein called the Union, or engaged in activities on behalf of the Union, or associated with other employees who joined or assisted the Union or engaged in union activities. It is alleged that this conduct violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 1 The Respondent is, and at all material times has been, an Illinois corporation engaged in the nonretail distribution of oil, gasoline, and related products. During the calendar year 1971, the Respondent's volume of business exceeded $500,000 and the Respondent derived gross revenues U.S.C. Sec. 151, et seq. ), herein called the Act. The Respondent filed an answer admitting that it had dis- charged Deering but denying that it had done so for the reasons set forth in the complaint, and denying the other allegations of the complaint. Thereafter, on August 31, 1972, the General Counsel filed an amendment to the complaint setting forth certain additional incidents of alleged interference, restraint, and coercion of employees. The Respondent filed an answer to the amendment to the complaint, denying the additional alleged incidents of interference, restraint, and coercion. Upon due notice, a hearing was held before me at St. Louis, Missouri, on various dates between September 13 and October 3, 1972, both dates inclusive. All parties were present in person or by representative and participated fully in the hearing. At the beginning of the hearing, the General Counsel was permitted to amend the complaint further by adding certain new allegations. The Respondent then denied these further amendments. At the close of the General Counsel's case, the Respondent moved to dismiss certain allegations of interference, restraint, and coercion of employees, and to dismiss the allegation that Deering had been discriminatorily discharged. The motion was denied so far as the discharge of Deering was concerned. Ruling was reserved on that part of the motion which dealt with interference, restraint, and coercion. It is now disposed of in conformity with conclusions set forth below. After the close of the hearing, the General Counsel and, the Respondent filed briefs, which have been duly considered. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT A. Preliminary Matters The complaint alleges, the Respondent admits either in its answer or by stipulation at the hearing, and it is found, that the Respondent is, and at all material times has been, an employer engaged in commerce as defined in the Act, and its operations meet the Board's jurisdictional stand- ards.) The complaint further alleges, the answer admits, and it is now found, that Oil, Chemical and Atomic Workers International Union, AFL-CIO, is, and at all material times has been, a labor organization as defined in the Act. B. The Relationship Between the Respondent and Continental Pipe Line Company What is referred to in the record as the Cherokee Pipe Line System consists of a pipeline extending from Tulsa, Oklahoma, to Hartford, Illinois (sometimes also referred to herein and in the record as the East Alton, Illinois, facility, or the Wood River Products Terminal), and the various facilities along that pipeline. Approximately 30 employees work in the terminals and along the line. The Respondent is, and has been at all times since at of more than $50,000 from the interstate transportation of gasoline, oil, and related products. During the same year, the Respondent purchased goods valued at more than $50,000, which were delivered to its Hartford , Illinois, terminal directly from sources outside the State of Illinois. 202 NLRB No. 88 CHEROKEE PIPE LINE CO. least December 1971, owned half by Continental Pipe Line Company (a wholly owned subsidiary of Continental Oil Company) and half by Toronto Pipe Line Company (a wholly owned subsidiary of Gulf Oil Company). General Facilities, Inc., is, and at all material times has been, owned half by Gulf Oil Company and half by Continental Oil Company. Since at least December 1971 General Facilities, Inc., has owned all terminal facilities along the Cherokee Pipe Line System and has leased such facilities to Gulf Oil Company and Continental Oil Company. During the same period of time, under an agreement between Continental Pipe Line Company and Toronto Pipe Line Company, the Cherokee Pipe Line System has been operated by Continental Pipe Line Company. The entire Cherokee Pipe Line System, including facilities along the line, is a single closely integrated operation in which the Respondent and Continental Pipe Line Company work in close cooperation toward a common goal.2 The supervisors of both collaborate regarding problems of mutual concern , including personnel matters relating to employees of either.3 The rank-and-file employees of both corporations are treated substantially the same by supervisors of either corporation.4 In brief, I conclude that the Cherokee Pipe Line System is, and at all material times has been, a joint venture in which both corporations risk capital; that each employee of either corporation engaged in the joint venture, regardless of his nominal employer, is in fact an employee of the joint venture; and that each supervisor and/or agent of either corporation so engaged, regardless of his nominal employer, is in fact an agent of the joint venture. It follows, and I find, that each corporation (the Respondent and Continental Pipe Line Company) is jointly and severally liable for the conduct of the supervisors and/or agents of either. C. The Setting The Respondent at one time entered into a collective- bargaining contract with a union not identified on the record. That contract expired in 1962. Years later-in early 1971-the Union wrote to employees of the Respondent soliciting their signatures on authorization cards. The Respondent countered promptly with a letter to all employees which read, in pertinent part: The current attempt by this Union to organize some of the employees on the Cherokee System is of great importalfce to each of you and your family. It is also important to the Company in that we would prefer to maintain our Employer/Employee relationship without the involvement of a third party and associated additional costs to you and the Company. When you receive the Union Authorization Card, the question you might have is "Should I or should I not sign this card?" The decision is yours. You should consider all the facts before you make that decision. If you sign this card, the Union may use your signature Y Shifts at the Wood River terminal have from time to time consisted of one employee from each corporation. Referring to Wood River, David L. Lechtenberg, a witness for the Respondent, testified: "We operated it as a joint operation." 3 Supervisors of both corporations meet every year and jointly 561 card to try to gain representation without giving you a chance to cast your secret ballot. A Union cannot possibly get for you those things that your Company, in keeping with good business prac- tices, is unable to give-but they can make promises. Our goal has been to work out fair and satisfactory solutions to any problems and this is still our objective. The record does not reveal any further organizing efforts by the Union until November 1971. Active on the Union's behalf thereafter were Doyle Strain, an employee at Wood River (nominally employed by Continental Oil Company); Kenneth C. Doty, an employee of the Respondent at the Belle, Missouri, facility; and Joe Rowell, an individual stationed at the Glenpool, Oklahoma, facility, whose supervisory status will be determined hereafter. As will appear later in more detail, officials of the Cherokee Pipe Line System learned of Strain's union activities in the last half of December 1971. However, knowledge of Rowell's role in the union campaign apparently came somewhat later. In mid-May 1972, John R. ("Jack") DeSola, then assistant district manager of the district which included Glenpool, Oklahoma, telephoned from his Tulsa office to Ronald P. Suttmoeller, then supervisor of operations at Glenpool. DeSola stated that he had learned that Rowell had made a telephone call on the Union's behalf, and DeSola asked Suttmoeller what he knew about it. Sutt- moeller replied that he (Suttmoeller) thought that Rowell had had "some contact with the Union," but that he (Suttmoeller) did not know particulars. DeSola remarked that he would like to know what Rowell's union activities were. Shortly thereafter, Suttmoeller approached Rowell while at work and said: "Jack [DeSola] wants to know about your union activities." Rowell did not reply. On July 11, 1972, Douglas S. Skinner, district manager of the Respondent, addressed an interoffice communication to "all employees-Cherokee-Arbuckle System" which reads, in pertinent part: It is my understanding that some of you wish to organize a union. Frankly, I do not think you need a union; but it is your privilege and if a sufficient number of you desire it, I assure you that the Company and I will attempt to negotiate a fair and equitable agreement with your representatives. f # k i i We worked with a union in this district for several years, but it was dissolved many years ago. This indicated the employees felt that they did not need a union. The employees and the Company seemed to have a fair understanding of the problems and a common ground on which we could meet in case of problems or misunderstandings. In all fairness to you, I want you to know that I expect full utilization of each and every one of you at all times. participate in evaluating the work of all rank-and-file employees of both corporations. 4 Employees of both have substantially the same fringe benefits, including "Conoco" employee credit cards, and in at least one terminal share the same toilet facilities. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, I expect to be fair with you and if you do not feel that you are being treated fair, don't come see me; let me know and I will come see you. It is against this backdrop that we must view the events discussed hereafter. D. Interference, Restraint, and Coercion 1. The first investigation at Wood River a. The interview with Shanks Late in December 1971, David L. Lechtenberg, em- ployed by Continental Oil Company as terminal foreman at Wood River, was informed by the terminal analyst, Loraine Blackard, that Wayne Shanks, a terminal man employed at Wood River, complained to her that Doyle Strain, another employee at Wood River, had harassed him (Shanks) about joining the Union, to the extent that Shanks felt his (Shank's) working ability had been affected. Blackard further related to Lechtenberg that Homer Smith, a semi-skilled laborer employed at Wood River, also complained to Blackard that Strain was "harassing" him "on the job during working hours." Lichtenberg reported this conversation to Wesley J. Barnett, then the Respon- dent's supervisor of operations at Wood River. On the same day, Barnett and Lechtenberg together talked to Blackard, who substantially iterated to them both what she had earlier told Lechtenberg individually. Barnett tele- phoned the same day to Irvin Toole, Jr., then in the Tulsa office as acting district manager for the district which included the Wood River terminal, and related what he (Barnett) had heard from Blackard. Toole directed Barnett "to privately visit with some of the employees at the terminal and see if he could determine the extent to which this harassment was actually being carried on," and then to report back. In furtherance of this directive, sometime later in December 1971, Shanks was called into the office. In Lechtenberg's presence, Barnett questioned Shanks. Ac- cording to Shanks' credited version: Q. What did Mr. Barnett say to you? A. He told me I didn't have to say anything if I didn't want to, but he would like to know if there was anyone trying to organize a union, and, if so, was it having any reflection on job performance of the employees. Q. Laid you respond to him at all? A. I told him that there was no one that I knew of. Q. Did Mr. Barnett say anything further? A. Not that I remember. Q. Did that end the conversation? A. I told him my feelings toward the union. Q. Did he say anything further? A. No.5 The complaint as amended alleges (par. 5A), and the 5 Barnett and Lechtenberg corroborated part of Shanks' version, but they both denied that the word "union" was used by anyone. I do not credit their denials in this regard. 6 Although Blackard had not mentioned Grover, Barnett testified that Grover was called in because "if you wanted to know something, he would tell you about it." T To the extent that Barnett and Lechtenberg denied that the Union was answer to the amended complaint denies, that between December 17, 1971, and January 2, 1972, Barnett at East Alton (Wood River) "interrogated an employee about the Union's organizational activities." It has been found, above, that Barnett summoned Shanks to the office late in December and, in Lechtenberg's presence, asked Shanks whether there was anyone trying to organize a union. This interrogation was impermissible. Nor does the fact that Shanks' nominal employer was Continental Oil Company, rather than the Respondent, make any difference, as Shanks was employed on the joint venture on which these two corporations had embarked. Accordingly, it is con- cluded that late in December 1971 Barnett illegally interrogated Shanks concerning the protected union activities of other employees, in violation of Section 8(a)(1) of the Act. As the Respondent stipulated that Barnett was then its agent, and as he was acting not only within the scope of his general authority but more specifically under Toole's directive "to privately visit with" employees, the Respondent is responsible for his conduct. b. The interview with Grover and events immediately following Still on the same day, Lindell R. Grover, another terminal man employed at Wood River, was summoned to the office where Barnett and Lechtenberg were present.6 According to Grover's version: Barnett started off by saying we know there is a person at this facility . . . that is instigating union talk... . He [Barnett] told me that we have a good, flexible relationship at this terminal without a union, and one that could not be enjoyed with a union. He said if we had a union, we'd be made to toe the line, that we would not get away with what we are getting away with now. He mentioned a mistake that I was involved in. Mr. Barnett said had we been union at that time I would have been fired. Barnett then asked whether Grover had been harassed by any employee. Grover replied that Strain had been trying to organize a union; Barnett remarked that they knew about Strain's activities. Barnett stated that certain employee benefits had been derived from the union which had represented the employees years earlier, and that he couldn't see how it would benefit the employees to pay for something they were getting free. Barnett further stated "that a third party would tend to cloud the situation and we wouldn't enjoy the working relationship that we had between the two parties if the third party was brought in." Barnett closed the interview with the statement: "We just wanted to make sure that he [Strain] hadn't been harassing me [Grover]." 7 Barnett reported to Toole by long distance telephone the results of his conversations with Shanks and Grover. Toole responded that Barnett should "just kind of hang tight," mentioned until Grover brought up the subject, and to the extent that both denied certain remarks attributed to Barnett by Grover, described above, (for example, the "toe the line" statement and that Grover would have been fired for his mistake had the pipe line then been unionized ) I do not credit their denials. It should be noticed, however, that they corroborated Grover's testimony that Grover told them of Strain's union organizing attempt. CHEROKEE PIPE LINE CO. 563 that Toole felt "something needed to be done," and that he (Toole) would come to the Wood River area at some future time, and would like to talk to Strain then. Toole discussed the subject with Harry Miller, then the Respondent's assistant district manager, and reported the matter by long distance telephone to John McFadden, then manager of personnel relations for Continental Pipe Line Company. Toole also, late in 1971 or early in 1972, telephoned long distance to Suttmoeller at Suttmoeller's home in Florissant, Missouri. Toole inquired whether Suttmoeller "had heard anything on the system about any union activities?" Suttmoeller replied that he had not heard anything. Toole directed Suttmoeller to "keep your ear to the ground." The amended complaint, as further amended at the hearing, alleges (par. 5 R, S, T, U, and BB), and the answer to the amended complaint denies, that during the last 2 weeks in December 1971 Barnett at East Alton (Wood River) created the impression of surveillance of employee union activities; threatened reprisals for union activities; interrogated an employee about the union activities of another employee; and told an employee there was a rule prohibiting employee discussions about the Union on the Respondent's time or property. As shqwn above, Barnett commenced his interview with Grover by stating that management knew an employee at Wood River was "instigating union talk." When Grover mentioned that Strain had been trying to organize a union, Barnett indicated that management already knew the employee's identity (as indeed Barnett did, from his prior talk with Blackard). These remarks must be viewed as suggesting that the Respondent was keeping a watchful eye on the union activities of its employees.8 It is accordingly found that such statements by Barnett, addressed to an employee of the joint venture, tended to inhibit the exercise of protected employee rights by creating the impression of surveillance thereby violating Section 8(a)(1) of the Act, as alleged in paragraph 5R of the complaint. And, for the reasons described above, the Respondent is responsible for such actions. In this interview, Barnett further warned that if the employees chose to be represented by the Union they would be made to "toe the line" and underscored this general statement with a specific illustration: Grover in the past had been involved in a particular mistake which, had the Union represented the employees at that time, would have resulted in harsher discipline to Grover than that which he in fact experienced. Such threats are clearly violative of the Act, as alleged in paragraph 5S and BB of the complaint. With respect to the allegation that in this conversation Barnett illegally interrogated Grover about the union activities of Strain, a fellow employee, there is some question in my mind as to whether Barnett's testimony is sufficient to support paragraph 5T of the complaint. However, I deem it unnecessary to decide this as, in any event, such a finding would merely be cumulative and would not substantially affect the remedial order hereafter recommended. As for the allegation that Barnett told Grover of a no-solicitation rule, Barnett's testimony of this part of the conversation was not convincing9 and this allegation (paragraph 5U of the complaint) must accord- ingly fall. c. The prehire interview with Shaw In mid-December there was a vacancy for a deliveryman at the Wood River terminal. James D. Shaw, Jr., applied for the job. He was interviewed by Toole in Toole's Tulsa office. According to Shaw's credited testimony, the following occurred during the interview: We had gone over my application, and then he [Toole] told me that if I was accepted for this position in Wood River, that the Cherokee Pipe Line at Wood River was one of the few companies that wasn't union and that the company felt that they paid the employees well enough and treated them well enough that they didn't necessarily need a union, and if I did go to Wood River that I possibly may be approached by older men concerning unions and that I shouldn't become involved in these activities but should report it to my supervisor immediately.10 The complaint alleges (par. 5G and H), and the answer denies, that on or about December 15, 1971, at his Tulsa office, Toole "directed an employee not to talk to anyone about the Union" and "to report to the employee's supervisor if the employee was approached about the Union." It has been found that, when Shaw applied for a job, Toole warned that Shaw, if hired, "shouldn't become involved in these [union] activities" and should immediate- ly report any activities of this kind to his supervisor. Such a warning to refrain from conduct protected by Section 7 of the Act, and such a directive or request to report these activities to management, violated Section 8(a)(1) of the Act, as alleged in paragraph 5G and H of the complaint.11 It is true that Shaw had not yet been hired when these events took place; but contrary to the Respondent's contention, it is enough to qualify him as an "employee" within the meaning of Section 2(3) of the Act that he was then an applicant for employment. He, therefore, came within the protection of Sections 7 and 8(a)(1) of the Act.12 Accordingly, the Respondent's motion to dismiss these allegations of the complaint because of Shaw's lack of employee status, upon which ruling was reserved, is now denied. 8 Marland One-way Clutch Co., Inc., 200 NLRB No. 48. 9 Grover testified: "he said we have told Doyle [Strain I ... that he was not to talk about unions, period, on company time or company property." Barnett and Lechtenberg denied this. In fact, Barnett did not talk to Strain until somewhat later. I therefore consider this part of Grover's testimony inaccurate, and credit the denials of Barnett and Lechtenberg in this regard. 10 Toole did not categorically deny Shaw's version of the conversation. He testified: Q. Did you tell him not to talk to anyone about a union? A. Not to the best of my recollection. Q. Did you tell him to report to anyone if he was approached about the union? A. Not that I can recall. 11 See N.LR.B., v. Speed Queen, a Division of McGraw-Edison Co., 81 LRRM 2742 (C.A. 8). 12 N.L.R.B., v. Speed Queen, supra; and Reliance Insurance Companies, 173 NLRB 1063. 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD d. The interview with Deering Also, in mid-December 1971, Craig Deering, a delivery- man employed by the Respondent at Wood River, was summoned to the office. 13 Barnett and Lechtenberg were there. Barnett did most of the talking. After a discussion of Deering's job performance, according to Deering's credited testimony, the following took place: Q. What did Mr. Barnett say to you at that time? A. He told me that they had heard, they had had word from Tulsa that there was talk of a union, and it was asked what I knew about it. Q. Did you respond to that at all? A. I told them I didn't know, there was nothing I knew. Q. Did Mr. Barnett say anything further? A. He asked if everything was O.K. and if there was any reason why I thought we needed a union at the terminal. Q. Did you respond to that? A. I said something to the effect that I didn't think the men had been treated fairly. Q. Anything else that you remember? A. Not about that particular topic. Q. Was there any discussion about Doyle Strain? A. He asked me who was instigating it and I told him I did not know, and he then asked if Doyle Strain was the instigator, and I told him that it was not my job to incriminate anybody. Q. Were you given any instructions in that conver- sation? A. The only instructions that I can recall was that the union was not to be talked about in any way on company property or on company time. Q. Who told you that? A. I don't remember if it was Barnett or Dave Lechtenberg.14 The complaint further alleges (par. 5E and F), as amended at the hearing, and the Respondent denies, that during the last 2 weeks in December 1971 at Wood River Barnett interrogated an employee "about employees' union activities and desires" and Barnett and Lechtenberg "directed an employee not to discuss the Union on company time or company premises." It has been found that in mid-December 1971 at Wood River, Barnett, in Lechtenberg's presence, asked Deering the identity of the employee who was "instigating" the Union. When Deering evaded, Barffett-instead of dropping the subject-in- quired whether Strain was "the instigator." Such interroga- tion, for which the Respondent is responsible, is clearly coercive and violative of Section 8(a)(1) of the Act, as alleged in paragraph 5E of the complaint. In the same interview, either Barnett or Lechtenberg instructed Deer- ing "that the union was not to be talked about in any way 13 Employees are customarily evaluated after 30, 60, and 90 days. This was approximately 90 days after Deering's hire, and may well have constituted his 90-day evaluation interview. 14 Barnett admitted that during the interview he told Deering "if he felt that . . . anyone was putting any undue pressure on him, if it was interfering with his work . . . and if he wanted to talk to us about it . . . feel free to come and talk to us about it." He denied that either he or Lechtenberg told Deering not to discuss the Union on company time or premises or that they had questioned Deering about union activities, or on company property or company time." The restrictions thus imposed on Deering were illegally broad, inhibiting him from engaging in protected activity during his nonworking hours.15 The Respondent moved to dismiss this allegation of the complaint because Lechtenberg was then employed by Continental Pipe Line Company rather than by the Respondent. Ruling on this motion was reserved; it is now denied. As stated above, Lechtenberg was engaged in the joint venture and this fact alone is sufficient to hold the Respondent accountable for his actions. In addition, as will appear below, he was clothed by the Respondent with apparent authority and his actions within the scope of that authority bind the Respondent as principal. For these reasons I conclude that the no- solicitation instructions given Deering by Barnett and/or Lechtenberg violated Section 8(a)(1) of the Act, as alleged in paragraph 5F of the complaint. 2. The followup a. The interview with Strain It will be recalled that in late December 1971 Toole had indicated in a long distance telephone conversation that he would come to the Wood River area at some future date and would like to talk to Strain then. On January 13, 1972, Toole visited the Wood River terminal and Strain was called into the office. Present were Toole, Miller, Barnett, and Lechtenberg. Toole stated that other employees had complained to him that Strain had been talking so much about a union that it was irritating them and interfering with their work. According to Strain's credited testimony, Toole told him "that if I wanted to talk about a union on my own time that it was fine, but I could not and would not talk about a union on company time or premises." Strain asked: "Are you calling me a union organizer?" Toole replied that it had been reported to him that Strain "had been harassing some of [his] fellow employees to the point that it is interfering with their work," and warned: "If indeed you are, let me make myself clear, I want it stopped." Strain inquired whether that was a threat; Toole responded that Strain could interpret it that way. Strain denied that he had engaged in any harassment. Toole then asked Strain if there was any aspect of his work which 'made him unhappy, and if he had any suggestions of how the Respondent might improve its operation. Strain related certain matters which displeased him and Toole promised to check into these matters and determine what the situation was. The interview ended on this note.16 The complaint alleges (par. 5B, C, and D), and the answer denies, that in January 1972, at Wood River, Toole instituted a rule prohibiting employees from discussing the Union on company time or premises; threatened an employee; and impliedly promised benefits to employees indeed that union activities were even mentioned in the conversation. I do not credit his denials in these respects. 15 All parties agree that the Respondent has not, during times here relevant, promulgated any general no-solicitation rule. 16 To the extent that Lechtenberg ( 1) denied that Toole told Strain that he was not to discuss the Union with employees on company time or premises and (2) testified that Toole told Strain "it has been reported that you have been harassing people . . . on the job during working hours," I do not credit Lechtenberg's testimony. CHEROKEE PIPE LINE CO. to discourage their union activities. During the interview with Strain, Toole warned Strain not to discuss the Union ,.on company time or premises." Like the earlier similar directive of Barnett or Lechtenberg to Deering, discussed above, Toole here imposed illegally broad restrictions on Strain's right to engage in activities protected by Section 7 of the Act. And so long as these activities were carried on in a legal manner, it requires no different conclusion where the legal activities actually have an adverse effect on the work proficiency.of other employees. As the Board has said: Assuming that Delgado's union activity may have indirectly resulted in some impairment of efficiency at the Respondent's plant, it is, as the Trial Examiner points out, the price which must often be paid in order that the rights guaranteed by Section 7 may be preserved.17 Furthermore, the Respondent failed to produce any evidence that Strain's activities did in fact cause any inefficiency or actually interfered with the work of others. Therefore, this limitation, together with the implicit threat to impose sanctions, if necessary, to enforce it, ("let me make myself clear, I want it stopped") violated Section 8(a)(1) of the Act, as alleged in paragraph 5B and C of the complaint. The General Counsel further alleges in paragraph 5D of the complaint that, by soliciting complaints from Strain and then assuring Strain that he would look into these matters, Toole impliedly promised benefits to discourage Strain from further support of the Union. And despite some rather generalized testimony of management repre- sentatives, I am convinced, and find, on the record as a whole (including credited testimony of witnesses for the General Counsel) that such conduct was not merely routine, but on the contrary was unusual and stemmed from the Respondent's recent knowledge of the Union's renewed organizing drive. I conclude that, in this interview with Strain, Toole impliedly promised benefits to Strain -in the shape of better working conditions-in order to discourage union activities and dampen Strain's enthusi- asm for the Union.18 b. The second interview with Shaw On January 3, 1972, Shaw had been hired as a deliveryman at Wood River. Sometime in January or February Shaw had a conversation with Barnett in Lechtenberg's presence.19 According to Shaw's credited testimony: He [Barnett] wanted to know if I had heard anything concerning the union, or had talked to anybody about a union or union activities, and I told him I hadn't heard of anything, and he said, well, if I did hear of anything to let him know because they wanted to stop it before it got started. That's about all that was said.20 The complaint alleges (paragraph 51), and the answer denies, that in mid-February 1972 at Wood River, Barnett and Lechtenberg interrogated an employee about the Union, and the amended complaint alleges (par. 5P and 17 El Mundo, Inc., 92 NLRB 724, 726. 18 Reliance Electric Company, Madison Plant, Mechanical Driver Division, 191 NLRB No. 1. 565 Q), and the answer to the amended complaint denies, that at the same time and place the same management representatives directed an employee to report to his superior "if the employee was approached about the Union," and threatened the employee by stating "that union activity would be stopped before it got started." It has been found above that in January or February Barnett asked Shaw if he had heard anything about the Union and instructed Shaw to let Barnett know about any union activities of which he learned. The questioning of Shaw in this interview regarding what he had heard about the Union, coupled as it was with other directives discussed below, constituted another instance of coercive and illegal interrogation. As alleged in paragraph 51 of the complaint, it was violative of Section 8(a)(1) of the Act. The directive to report such activities to management, like the similar instruction given Shaw by Toole before Shaw was hired, also violated Section 8(a)(1) of the Act, as alleged in paragraph 5P of the amended complaint. Finally, the statement that the Respondent "wanted to stop it [the Union] before it got started" constituted a veiled threat of reprisal for union activities proscribed by Section 8(a)(1) of the Act, as alleged in paragraph 5Q of the amended complaint. 3. Summer events at Wood River and Belle a. Lechtenberg's conversation with Grover Sometime in June 1972, Grover had a conversation with Lechtenberg in the hallway at the Wood River terminal. As related by Grover in his undenied testimony, which I credit: Q. time? What did Mr. Lechtenberg say to you at that A. Just to start off with he said, "You don't have to answer this question if you don't want to." He said, "We have heard there is a union representative in this area, we know there is some interest in a union," and he asked if I had been contacted by a union representa- tive. Q. Did Mr. Lechtenberg say anything more? A. No, sir. Q. Did you respond to him at all? A. Yes, sir. Q. What did you say? A. I told him that I had not. The amended complaint alleges (par. 5V), and the answer thereto denies, that during the last 2 weeks of June 1972, at Wood River, Lechtenberg "interrogated an employee about the Union." In the above-described conversation, Lechtenberg asked Grover whether Grover had been contacted by a union representative. The Respondent seeks to avoid responsibility for this conduct by pointing to the fact that Lechtenberg was not then nominally its supervisor, but rather was the nominal supervisor of Continental Pipe Line Company. As set forth above, however, he was then working on the joint venture and therefore the Respondent and Continental Pipe Line 19 This may have been Shaw's 30-day appraisal. 20 Lechtenberg denied that Shaw was instructed to report to his superior if he were approached about a union . This denial is not credited. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company are separately and jointly liable. However, there is an even stronger reason for holding the Respondent accountable for Lechtenberg's acts. It is undenied that the Respondent at times here material distributed cards to its employees which read, in pertinent part: SUPERVISORS-CHEROKEE PIPE LINE Co. Wood River, Illinois-Area Code 618-254-0154 W. J. Barnett, Supervisor of Operations-259-1198 D. L. Lechtenberg, Terminal Foreman-377-6004 By thus putting its employees on notice that Lechtenberg was one of its supervisors, the Respondent clothed him with apparent authority to act as a supervisor on its behalf. Accordingly, under rules of agency, he thereby became the Respondent's agent, and the Respondent must be held accountable for his illegal interrogation of Grover, which fell within the scope of his apparent authority. Paragraph 5V of the amended complaint is therefore supported. b. DeSola's telephone call to Doty It has previously been mentioned that the three most active supporters of the Union were Strain at Wood River, Rowell at Glenpool, and Doty at Belle. It has also been related that late in December 1971 the Respondent's officials learned of Strain's role and that in mid-May 1972 they obtained knowledge of Rowell's connection with the Union's campaign. In early July 1972, while Doty was at the Belle facility, he received a long distance telephone call from DeSola. DeSola said he had a question to ask, and it was up to Doty whether he wanted to answer. Doty answered: "Go ahead." DeSola stated that he had heard that union cards had been distributed, and asked if Doty knew anything about it. Doty replied that cards were out. DeSola asked: "How long have they been out?" When Doty responded that they had been distributed for "about two weeks," DeSola remarked: "I guess I'm two weeks behind time." DeSola then inquired whether Doty "thought the union would go this time," to which Doty answered that he thought that it would. This apparently ended the conversation. The complaint as amended alleges (par. 5W), and the answer thereto denies, that on about July 3, 1972, at the Belle terminal,,, DeSola "interrogated an employee about the employee's knowledge of employees' union activities." In the above-described telephone conversation, DeSola clearly questioned Doty in a proscribed manner concern- ing matters protected by Section 7 of the Act. He thereby violated Section 8(a)(1) of the Act as alleged in paragraph 5W of the amended complaint. c. Jeter's interview with Doty On about July 7, 1972, Gerald W. Jeter, then manager of Eastern operations, visited the Belle facility accompanied by Skinner and James Mitchell. A conversation took place in the office of the Belle facility in which Doty was involved. According to Doty's credited testimony, the following took place: Q. What did Mr. Jeter say? A. He said he'd come by to visit and wanted to know if I had any problems or anything that might be making the employees unhappy or dissatisfied. Q. Did you respond to Mr. Jeter? A. I told him the only thing that I knew of, it possibly was the firing of the two employees at Wood River and filling of the position at St. Charles facility with someone outside of the regular organization. Q. Did Mr. Skinner make any comments during the conversation? A. Oh, he said that the organization didn't get messed up overnight, and it would probably take him a while to get it straightened out, but he assured me it would be. Jeter testified that he remarked: I think I [said] . . . that if there were problems, it was very easy for me to be in Ponca City and not know anything about the problems, that I was going to take an opportunity to get out, not only on Cherokee, but on all of the systems, to determine if there was any dissatisfaction, I couldn't make any promises even if I found that there were situations that needed to be corrected, but that I knew a good number of people on Cherokee, considered a good deal of them my friends and would make every effort to eliminate any sources of dissatisfaction. Shortly after this, Skinner distributed to the employees the interoffice communication quoted above. The amended complaint alleges (par. 5X), and the answer to it denies, that during the first 2 weeks in July 1972, at the Belle pump station, Jeter "impliedly offered benefits to an employee by inquiring into the employee's problems." In the light of the unusual nature of Jeter's visit to Belle, accompanied by Skinner and Mitchell, and in view of Jeter's assurance that he "would make every effort to eliminate any sources of dissatisfaction," I conclude that Jeter on this occasion impliedly promised Doty employee benefits for the purpose of discouraging Doty's support of the Union. Like Toole's earlier implied promises to Strain at Wood River, this violated Section 8(a)(1) of the Act,21 and is covered in the complaint in the allegations of paragraph 5X. 4. Incidents involving Rowell The remaining allegations of independent violation of Section 8(a)(1) concern incidents at Glenpool or Tulsa in which the individual alleged to have been the victim was Joe Rowell, one of the three most active union supporters. All such incidents are alleged to have taken place in June or July 1972 (par. 5J, K, L, M, N, 0, Y, Z, and AA). The General Counsel maintains that Rowell was a mere rank- and-file employee during these months; the Respondent, to the contrary, contends that Rowell was a supervisor within the meaning of Section 2(11) of the Act. For this reason the Respondent moved to dismiss the portions of paragraph 5 of the complaint relating to Rowell. 21 Reliance Electric Company, supra. CHEROKEE PIPE LINE CO. 567 Rowell began working for the Respondent in about 1959. In November 1971, he was made temporary terminal foreman at the Respondent's Glenpool pump station. In this capacity he attended a meeting of supervisors held in Tulsa for the purpose of evaluating rank-and-file employ- ees, and he participated in the evaluation of the work of one nonsupervisory worker. In April 1972, he was promoted to chief deliveryman at Glenpool with an increase in pay. This is a salaried job, in contrast to deliverymen who are hourly paid. According to DeSola's credited testimony: I told Joe that the job he would be expected to do would be the same one that was assigned to Ray Miller. I did not discuss the specific deliveryman duties because he knew them much better than I did, but I did specifically discuss with him the scheduling of his time and that of Leon Bowling . . . . That he was responsible to work with Leon and to schedule Leon's time and also his own to get the maximum coverage at the Glenpool area.22 Late in June, DeSola summoned Rowell to Tulsa, reprimanded him for failing to attend a supervisors' meeting, and informed him that one of the duties of chief deliveryman was attendance at such meetings. Suttmoeller, supervisor of operations at Glenpool, went on vacation for 2 weeks early in July. During his absence, Rowell acted as temporary supervisor of operations at an increased salary. After his vacation had ended, Suttmoeller returned to work for a short while but resigned effective the end of July. A replacement was not obtained until late in August. Rowell again acted as temporary supervisor of operations in the interim. During both times when Rowell served as temporary supervisor of operations, he was the highest ranking person at the Glenpool facility. At the end of August, he reverted to his former capacity as chief deliveryman. The testimony of Suttmoeller, a witness for the General Counsel, and that of Jeter and DeSola, witnesses for the Respondent, clearly demonstrates that both as chief deliveryman and as temporary supervisor of operations Rowell possessed authority to carry out some of the functions of a supervisor, as defined in the Act. But the matter need not rest entirely on this, for the testimony was buttressed by certain documents introduced into evidence by the Respondent. These are three overtime explanation slips regarding rank-and-file operator Leon Bowling dated April 29 and 30, 1972, which were received in the Tulsa office on Ma}s 3, 1972; and three others regarding operator Mark Maupin dated June 30, July 1, and July 30, and received at the Tulsa office on July 12 and August 13, 1972. All purported to be signed by Rowell, and the overtime was paid for by the Respondent on the basis of these documents without further question.23 The fact that 22 Rowell could not recall any discussion of his duties or authority at this time. 23 The General Counsel and the Charging Party objected to their introduction for lack of authentication of Rowell's purported signatures. The objection was overruled and the documents admitted as business records on the basis of 28 U.S.C. Sec. 1732 (a). In his brief, the General Counsel poses another objection , namely , the Respondent's failure to confront Rowell with his purported signatures while Rowell was on the stand . Assuming, without deciding , that such an objection is otherwise meritorious, it comes too late, having been raised for the first time after the the Respondent was willing to pay out overtime wages on the strength of a signature believed (correctly or incorrect- ly) to be that of Rowell is eloquent proof that at that time Rowell had authority to authorize overtime work by employees under him. This is especially true in the light of DeSola's undenied and credited testimony that in the Respondent's business, "Overtime is something that is rather rigidly controlled and analyzed, that the supervisor involved, be he chief deliveryman or supervisor of operations, must authorize the overtime." For the forego- ing reasons it is found that Rowell was, during the months of June and July 1972, possessed of supervisory authority, as defined in Section 2(11) of the Act, and that he knew he had such authority. Whether Rowell actually exercised such authority, and whether the Respondent knew of his prounion activities and raised no protest, are extraneous to the issue. It follows that, even had the Respondent engaged in the acts alleged in paragraph 5J, K, L, M, N, 0, Y, Z, and AA of the complaint as amended, this conduct would not have been proscribed because the acts were directed toward a supervisor. The Respondent's motion to dismiss this portion of the complaint is accordingly granted. E. The Discharge of Craig Deering 1. Facts Craig Deering began working for the Respondent late in August 1971 as a deliveryman at the Wood River facility. At that time the Wood River operations were carried out by a pair assigned to each shift, consisting of a deliveryman and a terminal man. From the beginning of his employ- ment until sometime in December 1971, Deering was paired, that is, worked on the same shift, with Strain, who was a terminal man. In December 1971, the policy of pairing men was changed, and thereafter for several months Deering handled a shift by himself. Deering's work was evaluated by Barnett in December 1971, approximately 90 days after his hire. Barnett told Deering at that time that Deering "was coming along about average." As previously detailed, in December 1971 Deering was illegally interrogated by Barnett, in Lechten- berg's presence, about the union activities of his fellow employees, and in particular about those of Strain. On April 15,24 Deering was on shift alone. At about 5:40 a.m., Barnett came to the Wood River terminal and found Deering asleep. He woke Deering and lectured him about the seriousness of sleeping on the shift.25 Barnett reported the incident to DeSola by long distance telephone that morning. In this conversation Barnett "suggested ... that maybe we ought to look at terminating Craig" because of Deering's "poor job performance, inability to accept responsibility of the job, and then alsp sleeping on the job." close of the hearing. It should also be mentioned in passing that, at the time these documents were introduced, the General Counsel had Rowell under subpena but failed to produce him on rebuttal to disavow the purported signatures. 24 All dates hereafter refer to the year 1972 unless otherwise noted. 25 Deering testified that he had become ill on duty and both Deering and Barnett testified that Deering explained this fact to Barnett after Barnett woke him. Deering admitted that he had previously been instructed by Barnett that if he felt ill enough that he could not perform his duties, he was to contact Barnett and request to be relieved. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DeSola directed Barnett to write him a letter about the matter. Accordingly, on April 17 Barnett sent to DeSola an interoffice communication describing the incident. On or about April 20, DeSola visited Wood River and conferred with Barnett and Lechtenberg about the work of Deering, and also that of Shaw.26 Barnett and Lechtenberg individually recommended the discharge of both Deering and Shaw because of unsatisfactory performance on the job. DeSola returned to Tulsa and conferred there the next day, April 21, with William H. Meara, terminal superin- tendent for Continental Oil Company.27 A few days later, probably on April 24, DeSola and Meara conferred with Skinner about the matter. At a second conference in late April or early May attended by Skinner, DeSola, and Meara, Skinner decided to discharge Deering and Shaw effective May 31. This date was selected in order to provide time to obtain replacements. Skinner directed Meara to inform Barnett and Lechtenberg of this decision. Meara went to Wood River and told Barnett and Lechtenberg what had been decided. During May, replace- ments were obtained for both Deering and Shaw. These replacements were instructed to report for work at Wood River in June. Under DeSola's direction, "Employment and Changes" slips were filled out for Deering and Shaw. In the box for "Reason" on Deering's slip appears the following: The employee has shown an inability in coping with his present job and has not demonstrated iniative [sic] in reinforcing areas where he has proved to be deficient. He is immature and doesn't comprehend the responsi- bilities charged to him, as demonstrated by his being found asleep on the job on April 15, 1972. It is felt that the employee has a lack of career potential to the company. Skinner signed both slips on May 11, and took them to Ponca City the following day, where he presented them to Jeter. At Skinner's recommendation, both discharges were approved by Jeter. On May 31, Deering was working the 8 a.m. to 4 p.m. shift with another employee.28 At or about 2:30 p.m., Deering was summoned to the office, where Barnett and Lechtenberg were present. Barnett announced that Deer- ing was discharged, effective immediately, and would receive 2 weeks' pay in lieu of 2 weeks' notice. Deering inquired why he was being discharged. Either Barnett or Lechtenberg replied "that 90 percent of the reason was falling asleep once on the job, and that the people in Tulsa had took that'pretty hard . . . and that 10 percent was for other reasons." 29 Deering then turned in his keys and employee credit card,30 emptied his locker, and left. After he got home, Deering called Lechtenberg at the terminal and asked if 90 percent of the reason for his discharge was falling asleep on the job what was the other 10 percent? 26 The record contains testimony tending to indicate the unsatisfactory nature of Shaw's job performance. 27 Meara testified that while he was at Wood River in mid-April, Barnett and Lechtenberg recommended directly to him (Meara) that Deering and Shaw be terminated . I deem it unnecessary to make any finding regarding such a conversation. 28 On or about May 1, the two-man shift had been reinstituted at Wood River and Deering resumed teaming up with Strain. Late that month, because of vacation schedules, Deering's partner was changed from Strain to another employee. According to Deering, Lechtenberg gave a noncommittal answer. According to Lechtenberg, he answered in some detail. Both agreed, and I find, that at the end of the conversation Lechtenberg referred Deering to DeSola in Tulsa for further details. Meanwhile, rumors of the discharge had reached Suttmoeller, Deering's brother-in-law. Suttmoeller tele- phoned long distance to DeSola and stated that he understood Deering had been terminated. DeSola an- swered that Deering's discharge was scheduled to take place that day, but he did not know whether it had occurred as yet. Suttmoeller protested that Deering should not be discharged merely for sleeping on the job. DeSola responded that the sleeping incident was not the only reason, that Deering had been let go because of his poor performance generally. Between 3 and 3:30 p.m., DeSola telephoned to Wood River and confirmed, through Barnett, that Deering had actually been discharged. At or about 4:30 p.m., Deering telephoned long distance to DeSola in Tulsa, as Lechtenberg had suggested. Deering, who was upset, wanted to know why he had been dismissed. He added that he did not consider it fair to discharge him for sleeping on the job. DeSola replied that, although the sleeping incident "in itself was pretty serious," it was not the sole cause of the discharge. There followed a discussion of Deering's failure to contact Barnett or Lechtenberg when he felt ill on April 15. Other reasons for the discharge given by DeSola included that Deering was incompetent, couldn't make major decisions by himself, and had neglected his duties. The conversation ended with DeSola promising to "look into" the discharge and call Deering back later that week.31 DeSola then made a telephone call to Barnett in Wood River for the second time that day. Barnett informed DeSola that Shaw had also been discharged. DeSola directed Barnett to send him a separate list of reasons for the dismissal of each man -Deering and Shaw. Barnett and Lechtenberg then collaborated in preparing the two lists. On June 1, at Deering's request, Skinner met with Deering in Tulsa. Deering protested his discharge and explained why he thought it was unfair. According to Deering: "I talked with Mr. Skinner for an hour and a half, discussed everything, and he listened to me." At the conclusion, Skinner promised that he would make a personal investigation at Wood River and, if he found anything to change his mind, would get in touch with Deering. Approximately 2 weeks later, while at Wood River, Skinner talked to one of the employees in private, and asked if the employee felt that the Respondent had been unfair in terminating Deering or Shaw. The employee declined to comment. Meanwhile on June 2, before 8 a.m., DeSola called Barnett in Wood River and asked him to read over the 29 Deering attributed the 90-10 percent statement to Barnett; Lechten- berg attributed it to himself ; and Barnett denied that Deering asked any questions and made no reference to the 90-10 percent remark . I do not credit Barnett's denial in this regard. 30 Recall of such credit cards is customary when employees are separated. 31 Deering testified that DeSola stated in the conversation that one reason for the discharge was that Deering "was too close a friend of Doyle's." DeSola flatly denied making such a statement. Deering's testimony in this regard was not convincing ; I credit DeSola's denial. CHEROKEE PIPE LINE CO. 569 telephone his list of specific examples of Deering's poor work performance . As Barnett read, DeSola wrote down the substance of each complaint, of which there were ten. Barnett then informed DeSola that he had heard that Deering was planning to go to the National Labor Relations Board and was threatening suit against the Respondent . He added that in his opinion Deering was not "bright enough to be doing these things on his own." DeSola asked if Barnett had any idea "where he [Deering] was getting his coaching," inquiring specifically whether Barnett thought it might be Suttmoeller. Barnett answered that he didn't think that it was Suttmoeller . Strain's name then entered the conversation. According to Barnett's testimony: He said what about his association with Doyle Strain, could it be Doyle, and I told him that the only association I knew about Strain and Craig was that they worked together on shift , and that they seemed to be pretty good friends. According to DeSola's version, it was Barnett who first mentioned Strain. Thus DeSola testified: Wes [Barnett ] also told me that the month prior to being dismissed, that Craig had been assigned to and worked nearly full time with Doyle Strain, and that their association was such that Craig seemed to place quite a bit of reliance on Doyle for doing the work, conversation, what have you, and that it was possible that Doyle was putting him up to it. While this discussion was going on, DeSola wrote the words: "Craig Deering-relationship with Doyle Strain" at the top of the paper containing his notes of specific examples of Deering's shortcomings. DeSola then telephoned long distance to Suttmoeller in Glenpool and instructed him to come to DeSola's Tulsa office that afternoon . Suttmoeller complied. DeSola read to Suttmoeller the 10 instances of Deering's unsatisfactory work performance . Nothing was said about Deering's relationship with Strain ; however, Suttmoeller did happen to see the paper referred to above, and noticed the words: "Craig Deering-relationship with Doyle Strain" written at the top. Suttmoeller remarked that when Deering was first hired by the Respondent Suttmoeller had advised Deering to "keep his nose clean ." During the conversation, DeSola voiced his suspicion that somebody was telling Deering what to do. DeSola asked , "Are you putting Craig [Deering ] up to this?" Suttmoeller replied in the negative, adding: "if anybody was putting him up to it, it was his mother." As previously noted , on June 5 Deering filed the instant charges. On June 8, DeSola telephoned long distance to Suttmoeller . According to DeSola's undenied testimony: Q. You did recognize his voice? A. Addressed him by name and recognized his voice, and I told him that we received a notice of complaint from the N.L.R.B. about discriminating against Craig because of his union activities , and I told Ron at that time that I didn't know of any activities on the part of Craig and asked him if he did, and he said no, he didn't have any idea. Then he went on to tell me, reminded me that I had spoken to him that Friday afternoon , the 2nd of June, and that he had seen the list on my desk and the notation at the top , said that Deering was at his house at that time, and that this was relayed to him as one of the reasons for- Q. (Interrupting) Relayed to him by whom? A. I don't know if Ron told him directly, but related either directly from Ron or through his wife to Mr. Deering about the association with Doyle Strain. [sic] Mr. Suttmoeller told me that. I mentioned to Ron, "Well, that explains it, that 's the basis for this particular case," and I told him at that time I certainly expected him to use a little more discretion in what information was passed along to the employees and in particular after a man has been discharged. Q. Did you state to him anything concerning whether or not that association or relationship with Doyle Strain was a reason for discharge? A. No. I believe I told him that I believed that Doyle Strain was involved in union activities and the relationship with Doyle Strain , therefore, tied right in with this N.L.R.B. complaint. Q. Did you in that conversation deny to Mr. Suttmoeller that this was a reason for termination? A. Yes, I told him that it was not a reason. I asked him if indeed I had told him that it was , and he said no, he had just seen it on top of the paper. On June 12, DeSola visited the Glenpool facility and talked to Suttmoeller. According to Suttmoeller's undenied testimony: He said that he was very upset with the charges and that he wanted to know what I had told Craig. I told him that I had told Craig what was on the list, and I told him about the association with Doyle Strain, and he said something to the effect that I didn't tell you that, and I said, well, I don't know, I said, I read it on the list that was on your desk. He said, "Well, that didn't mean nothing," he said, "it was just there." Later on during the conversation he stated did I know that Doyle was on the books as a union organizer, and I said that, well, I had heard something similar before. Suttmoeller later resigned from the Respondent's em- ploy, effective July 31. 2. Contentions of the parties The complaint alleges that Deering was discharged, and thereafter denied reinstatement, because he "joined or assisted the Union or engaged in [union] activities" or alternatively because he "associated with other employees who joined or assisted the Union and . . . engaged in [union] activities." At the hearing and in his brief, the General Counsel appears to have abandoned any conten- tion that Deering himself was directly involved in union activities and relies instead on the alternative allegation, namely, that Deering's dismissal "was substantially moti- vated by Respondent's belief, whether correct or incorrect, that Deering was associated with [and sympathetic to] a "known union adherent," namely, Strain. In support of this contention the General Counsel points to the "numerous items" of violations of Section 8(a)(1) of the Act as establishing "Respondent's union animus." He also urges that "the fact that Respondent may have had valid reasons for discharging Deering is not crucial ." Finally, he takes 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the position that "Shaw's contemporaneous discharge should not insulate Respondent from the unlawfully motivated discharge of Deering." The Respondent in its answer admits that it discharged Deering on May 31 and thereafter failed and refused to reinstate him. It denies, however, that Deering's union activities, if any, or his association with known union adherents, if any, had anything to do with the discharge. In its brief the Respondent denies that there is evidence that Deering engaged in any union activities. And, while apparently conceding that it knew of or suspected Strain's support of the Union, the Respondent further denies that Deering's association with Strain was a factor in Deering's discharge. Finally, the Respondent takes the position, as an affirmative defense, that "Mr. Deering was not singled out for treatment" as shown by the parallel treatment accorded Shaw, but on the contrary, "Craig Deering was discharged for cause," that is, his unsatisfactory work performance. All this boils down to a single issue : Was Deering's known or suspected association with, or sympathy for, Strain a substantial motivating factor in the Respondent's decision to discharge Deering? The General Counsel has, of course, the burden of proving the affirmative. 3. Conclusions The record clearly demonstrates that, beginning with early 1971 and continuing into mid-1972, the Respondent reacted promptly when it learned that the Union was campaigning, and showed keen interest in the identity of the Union's proponents. Moreover, it has been found above that the Respondent engaged in numerous violations of Section 8(a)(1) of the Act. For these reasons I find, in agreement with the General Counsel, that at all material times the Respondent harbored animus toward the Union.32 Assuming, without deciding, that this animus was not only directed toward the Union as an institution but also toward Strain as an individual, there is nothing in the evidence to convince me that the Respondent chose this means-the discharge of his "associate" Deering-to "get at" Strain. To find that the Respondent sought reprisal against Strain by this method is simply too speculative, unsupported by the record, and too farfetched to be convincing. But did the Respondent seek to rid itself of Deering because it believed that Deering had become contaminated with prounion enthusiasm through his association with Strain? Again, the record does not support such a theory. Deering was not shown to have engaged in any prounion activities before his discharge; admittedly he did not even sign a union card. The record is silent as to any mention of the Union by Deering with one exception: Several weeks before his discharge, Deering told his brother-in-law, Suttmoeller, "that there had been a lot of union talk up in the Wood River area." Suttmoeller advised Deering: "Just kind of walk the line or kind of stay out of it." This can 32 This finding is not meant to be critical of the Respondent, but merely constitutes a statement of fact . The Respondent had, of course, a legal right to resent and to oppose the Union , so long as it took no action proscribed by the Act. N.L.R.B. v. McGahey, 233 F.2d 406,409 (C.A. 5). But, as the scarcely be considered as an expression by Deering of sympathy with Strain or with' the union cause. In the final analysis the General Counsel 's case rests perilously on the single fact that, on June 1, Barnett and DeSola talked briefly about Deering's association with Strain, and DeSola noted on the list of Deering's faults the words "Craig Deering-relationship with Doyle Strain." But this cannot be considered out of context. Credible testimony establishes that this subject came up for the first time after Deering's discharge; it therefore could not have played any part in the decision to dismiss him. Further- more, Deering's relationship with Strain was of interest to the Respondent's management not as a factor in deciding to discharge him (that decision had already been made) but only in the context of speculation as to whom Deering was consulting and who was "coaching him" in regard to the measures Deering took, and threatened to take, after he was informed of his discharge . Although the matter is not entirely free of suspicion, I conclude that the General Counsel has failed to establish a prima facie case ; that is, has not produced a preponderance of evidence, that Deering's association with Strain was a substantial moti- vating factor in the Respondent's decision to discharge Deering. Accordingly, the Respondent's motion to dismiss that portion of the complaint which relates to Deering's dismissal (par. 6C), upon which ruling was previously reserved, is now granted. In this posture of the case, it is unnecessary to examine the Respondent's defense that Deering was discharged because of his unsatisfactory performance on the job. Upon the basis of the above findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Cherokee Pipe Line Company is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Oil, Chemical and Atomic Workers International Union, AFL-CIO, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating its employees concerning their union membership, activities, or sympathies, or those of their fellow employees, in a threatening and coercive manner ; by creating the impression that it was engaging in surveillance of its employees' union activities ; by threaten- ing reprisals against its employees for supporting any labor organization; by promising benefits to its employees in order to discourage them from supporting any labor organization; by instructing its employees to inform it about the union activities of their fellow employees; and by prohibiting its employees from discussing labor organiza- tions on company premises during nonworking time, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging United States Court of Appeals for the Fifth Circuit has said: "antiunion bias and demonstrated unlawful hostility are proper and highly significant factors for Board evaluation in determining motive." N.L.R.B. v. Dan River Mills, Incorporate[ 274 F.2d 381, 384 (C.A. 5). CHEROKEE PIPE LINE CO. 571 in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The General Counsel has failed to establish by a preponderance of the evidence that the Respondent has engaged in or is engaging in any unfair labor practices other than as found herein. 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: 33 ORDER Cherokee Pipe Line Company, Hartford, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees about their union membership, activities, or sympathies, or those of their fellow employees, in a threatening or coercive manner. (b) Creating the impression that it is engaged in, or has engaged in, surveillance of the union activities of its employees. (c) Threatening to stop union activities before they get started, or otherwise threatening reprisals against its employees for supporting any labor organization. (d) Promising benefits to its employees in order to discourage them from supporting any labor organization. (e) Requesting, instructing, or directing its employees to inform it concerning the union activities of their fellow employees. (f) Prohibiting its employees from discussing any labor organization on company premises on the employees' own time. (g) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights protected by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its facilities in Tulsa, Oklahoma ; Belle, Missouri; Glenpool, Oklahoma; and Hartford, Illinois; copies of the attached notice marked "Appendix." 34 Copies of such notice, on forms provided by the Regional Director for Region 14, after being signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and shall 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 the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed, insofar as it alleges that the Respondent violated the Act other than as found herein. 33 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. 34 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 read, "Posted Pursuant to the 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 question our employees about their union membership, activities, or sympathies, or those of their fellow employees, in a threatening or coercive manner. WE WILL NOT create the impression that we are spying on the union activities of our employees. WE WILL NOT threaten to stop union activities before they get started, or otherwise threaten reprisals against our employees for supporting any union. WE WILL NOT promise benefits to our employees in order to discourage them from supporting any union. WE WILL NOT instruct our employees to inform us about the union activities of their fellow employees. WE WILL NOT prohibit our employees from discuss- ing any union on company premises on their own time. WE WILL NOT in any like or related manner interfere with our employees in the exercise of their organiza- tional rights guaranteed under the National Labor Relations Act, except to the extent that such rights may be affected by an agreement requiring union member- ship as a condition of employment, as authorized in Section 8(a)(3) of the Act. All our employees are free to become, remain, or refrain from becoming or remaining members of any union, except to the extent that such rights may be affected by an agreement requiring union membership as a condition of employment, as authorized in Section 8(a)(3) of the Act. CHEROKEE PIPE LINE COMPANY (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4167.