Anchortank, Inc.

ANCHORTANK, INC. Anchortank, Inc. and Oil, Chemical and Atomic Workers International Union. Case 23-CA-6292 November 4, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On July 5, 1977, Administrative Law Judge John P. von Rohr issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a reply 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 rulings,' findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).2 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, Anchortank, Inc., Texas City, Texas. its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. I We reject Respondent's contention that the Administrative Law Judge erred in asserting jurisdiction. Respondent, while entering a general denial to the complaint's conclusionary allegation of commerce, admitted that it is a Texas corporation and that during the 12 months preceding the hearing it purchased goods valued in excess of S50.000 from firms located outside the State of Texas. Based on the above facts, the Administrative Law Judge found that Respondent is engaged in commerce within the meaning of the Act. Subsequent to the hearing, Respondent took the position that its operations fall under the category of an instrumentality, link, or channel of interstate commerce, and that. under the current jurisdictional standards utilized by the Board. jurisdiction should not be asserted. We find no merit in that contention. Since Respondent admitted the jurisdictional facts alleged in the complaint, General Counsel was not required to adduce further evidence to prove that Respondent was engaged in commerce. In addition, at the hearing Respondent introduced no evidence, and proffered no argument, to indicate that the jurisdictional standard alleged in the complaint was inapplicable. Thus, the Adrministra- tive Law Judge's utilization of that standard was proper. Furthermore. in a recent case before the Board, involving the same parties, Anchorrank, Inc., Case 23-RC4461 (1977) (not reported in bound volumes of Board Decisions), Respondent stipulated to. and the Board asserted, jurisdiction based on the same standard applied herein. See also St. Peter's School, 220 NLRB 480. fn. 2 (1975). Finally, while a question concerning the Board's statutory jurisdiction may be raised at any time, it is well settled that the issue of jurisdiction under the Board's discretionary standards must be timely raised. In the instant case, the existence of the Board's statutory 233 NLRB No. 52 jurisdiction is clear and uncontested, and Respondent did not question the propriety of the discretionary jurisdictional standard alleged in the complaint until after the hearing had closed. Under these circumstances, we conclude that, in any event, Respondent may not raise now the question of whether assertion ofjunsdiction is appropriate in this case. Pollack Electric Co.. Inc., 214 NLRB 970 (1974); Travel Rest, Inc. d/b/a Gateway Motor Lodge, 222 NLRB 851 (1976). 2 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Administrative Law Judge: Upon a charge filed on November 15, 1976, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 23, issued a complaint on December 20, 1976, against Anchortank, Inc., herein called Respon- dent or the Company, alleging that it had engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act. Respondent filed an answer denying the allegations of unlawful conduct alleged in the com- plaint. Pursuant to notice, a hearing was held before me in Galveston, Texas, on March 1, 1977. Briefs were received from the General Counsel and Respondent on April 18, 1977, and they have been carefully considered. Upon the entire record in this case, and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Texas corporation with its principal office and place of business located in Bayport, Texas, and a facility in Texas City, Texas, where it is engaged in bulk liquid storage terminal operations involving the loading and unloading of ships, tank cars, and tank trucks. Only the Texas City, Texas, facility is involved in this proceed- ing. During the 12 months preceding the hearing herein, Respondent purchased goods valued in excess of $50,000 from firms located outside the State of Texas, which goods were shipped to Respondent from points outside the State of Texas. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It. THE LABOR ORGANIZATION INVOLVED Oil, Chemical and Atomic Workers International Union, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The principal issue in this case is whether Respondent discharged employees Pete Mancuso and Neal Jackson, Jr., in violation of Section 8(a)(1) and (3) of the Act. The complaint further alleges that Respondent engaged in certain conduct independently violative of Section 8(aX)(I) of the Act. 295 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Supervisory Status of James Luhning and John Jackson Denying that the above-named individuals are supervi- sors within the meaning of Section 2(11) of the Act, Respondent contends they acted only in the capacity of leadmen. Respondent's employees are engaged in pumping chemi- cals and in the loading and unloading of ships, tank cars, and tank trucks. Working on shifts, there are several alternating crews. John Jackson is the head of one such crew and James Luhning is the head of another. Although these individuals receive their orders from the superinten- dent in the morning, the unrefuted testimony in the record reflects that they spend the majority of their time assigning work and directing the activities of the members of their crews. Whereas all the employees wear green hardhats, Luhning and Jackson wear distinguishing yellow hardhats. Only Melvin Herrman, the assistant superintendent, wears a white hardhat. Three employees testified that Jackson and/or Luhning, respectively, were their "foremen." It is undisputed that when employees wish to leave work early, or to come in late, they request and receive such permission from Jackson or Luhning. According to the unrefuted testimony of employee Jerry Robinson, these individuals, as he observed, also exercise the authority to take employees from one job and assign them to another. In addition, Robinson testified without contradiction that employees would come to Luhning with their complaints or grievances and that he would act upon them on the spot. Insofar as discipline is concerned, the record reflects that written warning notices are given employees by Jackson and Luhning and in some cases their names appear on Respondent's official warning form in the blank provided for the "Supervisor's name." One such notice was given to Neal Jackson, Jr., by John Jackson, at which time John Jackson asked the employee to give his explanation concerning the infraction with which he was charged.' Although Jackson and Luhning do not possess various additional supervisory authority associated with superviso- ry status, it is well settled that the possession of any one of the supervisory indicia set forth in Section 2(1 1) of the Act is sufficient to place an employee in the supervisory class. Ohio Power Company v. N.L.R.B., 176 F.2d 385, 387 (C.A. 6, 1949); Fair Lady, Inc., 211 NLRB 189 (1974). In view of the supervisory authority held by Jackson and Luhning recited above, including what I find to be their responsible direction of employees in their work, I find Luhning and Jackson to be supervisors within the meaning of the Act. C. The Union Activity; Interference, Restraint, and Coercion On November 5, 1976, employees Pete Mancuso, Neal Jackson, Jr., and Curtis Hurst went to the union hall and spoke to union representatives about organizing a union. There they were given information as to the procedure to be followed and they were also provided with union authorization cards. The next day, during their nonworking I Although the record reflects that L.uhning and Jackson do not possess the authority to discharge employees, it is noted that John Jackson's name hours, these individuals solicited other employees at the plant and obtained 14 or 15 signed authorization cards. On November 11, pursuant to a notice posted on the bulletin board, Raymond Sobnosky, Respondent's superin- tendent, held a meeting with all the employees. First telling the employees that he had received a letter from the Union requesting recognition, Sobnosky stated that he did not care whether the employees went union or not. Neverthe- less, he proceeded to say that the Company was planning to give the employees better benefits and better working conditions, and also that it was working on plans to give them a wage increase. The various benefits and planned wage increase, he said, would be provided to the employees in writing by the end of the year. It is too well settled to require the citation of any authority that it is unlawful for an employer to announce employee benefits for the purpose of discouraging union activity during the course of an organizing campaign. Clearly, this is just what happened here. Especially in the context of first announcing the receipt of the Union's letter requesting recognition, I find that by promising the employees that there would be a wage increase and better working conditions by the end of the year, which then was less than 2 months away, Respondent violated Section 8(a)(1) of the Act. On the following day, November 12, Foreman James Luhning displayed to a group of four employees a letter written by Melvin Herrman, the assistant superintendent. Luhning told the employees that the letter stated that if they went union they would lose their benefits. Stating to the employees that they had better think whether they would go union or not, Luhning specifically mentioned that if they went union they would lose their sick pay and that their holiday pay and vacations would be taken away from them. I find that by threatening employees with loss of the foregoing benefits if they went union Respondent violated Section 8(a)(1) of the Act. D. The Discharge of Pete Mancuso Pete Mancuso was employed by Respondent as a laborer from November 6, 1975, until he was terminated on November 10, 1976. Mancuso not only obtained 14 or 15 union authorization cards from employees on November 6, but one of the employees borrowed a pen from Foreman Luhning and in Luhning's presence signed a card which had just been handed to him by Mancuso. In addition, it is undisputed that on November 6 or 7 Mancuso told Foreman Jackson of his going to the union hall with Jackson and Hurst and of their initiating the organizing campaign at this time. The only facts concerning the circumstances, as well as the asserted reason for Mancuso's discharge, were elicited from Mancuso, Respondent having called no witnesses to appears on the termination slip of an employee discharged on January 5, 1977. as the "Supervisor." 296 ANCHORTANK. INC. testify concerning the basis for the termination of this employee. 2 Mancuso was notified of his discharge about 4:30 p.m. on November 10, 1976, a Wednesday, at which time he was given an envelope by one Richard Vayette, which con- tained a memorandum signed by Sobnosky stating as follows: This is to inform you that as of 4:30, November 10, 1976, you have been terminated for failure to comply with safety regulations. A copy of the said safety regulations plus a copy of the termination is enclosed. The enclosed safety regulation stated, "Anyone caught climbing fences in the plant area will be immediately terminated." With respect to the assigned reason for Mancuso's discharge, the record reflects that a large portion of Respondent's outdoor property leading to the dock area is fenced off by a 6-foot wire fence which is topped by strands of barbed wire. Running parallel to the fence are two large pipes which extend beyond the end of the fence and continue into an area still on Respondent's property. Without qualification, the evidence reflects that it was common practice for Respondent's employees, including the supervisors, to climb over the pipes as a shortcut to the dock area. There is no indication that anyone was ever warned or disciplined for engaging in this practice. It was brought out through the testimony of Mancuso that he and another employee climbed over the pipes to take a break on Monday, November 8. Under cross- examination it was further developed that on this occasion Mancuso caught his leg on a pipe and fell over on the other side. Apparently sustaining a slight injury, he reported this to the safety director, whereupon he was advised to go home and see a doctor. Mancuso did not recall whether he returned to work on Tuesday, but it is undisputed that he was given his notice of termination in or about the middle of his workday on November 10. Upon the undisputed facts in this case, I have little difficulty in concluding and finding that Mancuso was discharged because of his union activities. That Respon- dent was hostile to the Union has been demonstrated by the Section 8(a)(1) violations heretofore found; and it has also been shown, that Respondent, through Foreman Jackson, was well aware that Mancuso was the leader of the organizing campaign. Additionally, it is not without significance that it was on the day following Mancuso's discharge (as well as the discharge of Neal Jackson) that Respondent assembled its employees, advised them that it had received a letter from the Union requesting recogni- tion, and announced the various benefits which it planned to give them. Thus, and apart from Respondent's knowl- 2 Supenntendent Sobnosky, who appears to have been responsible for the discharge, was himself discharged by Respondent at some undisclosed time after Mancuso's termination. 3 Under cross-examination Mancuso also conceded that he and Fore- man Jackson were smoking in a no-smoking area several days before his discharge. While this was in breach of Respondent's no-smoking rule, the record again reflects that it was common practice for the employees and their supervisors alike to smoke in this area without penalty. Accordingly. and assuming this to be an additional asserted reason for Mancuso's discharge (as Respondent's brief appears to indicate) for the reasons stated I edge of Mancuso's union activities, it is readily inferable that Respondent received the recognition request on November 10 and that this, too, was the motivating factor for his discharge. As to the reason assigned for this action, namely, that Mancuso allegedly climbed a fence, I can but regard this as no less than a pretext. Thus, even assuming that climbing over the extended pipes was a breach of Respondent's rule, the fact is that the rule was never enforced. The pretext therefore becomes obvious. In sum, and in view of all the foregoing, I find that Respondent's discharge of Mancuso was violative of Section 8(a)(i) and (3) of the Act.3 E. The Discharge of Neal Jackson, Jr. Jackson was employed by Respondent as a laborer from July 7, 1976, until he was discharged on November 10, 1976. On November 2 or 3, 1976, Jackson was assigned to tighten a knock-on cap on a butadiene tank car. In order to avoid generating sparks which could cause the butadiene to explode, the proper tool to use in the performance of this job is a brass hammer. Instead, Jackson used a steel wrench. Although in his testimony Jackson sought to give an excuse for his use of the steel wrench, I shall assume for decisional purposes that Jackson's excuse was without merit and that his use of the wrench was a breach of Respondent's safety rule. In any event, the incident came to the attention of Respondent's supervisors and for this he was issued a written warning. This warning, which is in evidence as General Counsel's Exhibit 7, bears the date of November 3, 1976. However, according to the unrefuted testimony of Neal Jackson, written warnings of this nature frequently are not given to the employees until several days after they are typed up, the date of the warning having been placed thereon at the time of the typing. In this instance, the warning was not given to Jackson until a day or two after he and the two other employees met with the union representatives on November 5, 1976. After handing the warning to Neal Jackson on this occasion, 4 it is undisputed that Foreman Jackson proceeded to ask Neal Jackson how he (Neal Jackson), Mancuso, and Curtis Hurst were progressing with the union campaign. Jackson replied that they were doing "real good" and had "almost 50°% participation." 5 Employee Jackson worked on a later shift than did Mancuso. When Mancuso arrived home on November 10, he called Jackson, told him that he (Mancuso) had been discharged, and advised him (Jackson) that he would probably receive a termination slip also. This proved to be just what happened, for when Jackson reported to work that evening he was given a termination slip by Foreman Jackson which stated that he was being terminated "for would also find this to be a pretext. Moreover, since breach of a no-smoking rule was not the reason given to Mancuso at the time of his termination, the inconsistency of any such contention with the reason actually given is further indicia of discrimination. 4 Foreman Jackson also asked Neal to give his explanation of the incident and to sign the warning slip. This participation by the foreman in the disciplinary action is further indication of his supervisory authority. Neal, it might be added, refused to sign. 5 As previously related, Mancuso had related the November 6, 1976, organizational meeting to Foreman Jackson prior to the above conversation. 297 DECISIONS OF NATIONAL LABOR RELATIONS BOARD failure to comply with a safety regulation, using hammers other than brass to hammer on butadiene tank cars." Since the reason assigned for Jackson's discharge involved the very same infraction for which he had received a written warning several days earlier, the pretextual nature of the reason so assigned for the discharge is conspicuously apparent. Accordingly, and since Respondent has been shown to have had knowledge of Jackson's union activities, for the same reasons heretofore stated with respect to Mancuso's discharge, I conclude and find that Respon- dent's termination of Jackson was in violation of Section 8(a)(1) and (3) of the Act. I further find that Foreman Jackson's interrogation of Neal Jackson concerning the progress of the union campaign was independently viola- tive of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operation de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent discharged Neal Jackson, Jr., and Pete Mancuso in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that Respondent be ordered to offer them full and immediate reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of earnings they may have suffered from the date of their discharge to the date of Respondent's offer of reinstatement. Backpay shall be computed in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon computed in the manner and amount prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In view of the nature and extent of the unfair labor practices herein found, it will be recommended that Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed employees in Section 7 of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I 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 the 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. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in the conduct described in section III, above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX I) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. On the basis of the above 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: ORDER 6 The Respondent, Anchortank, Inc., Texas City, Texas, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging employees because they engage in union activities. (b) Threatening its employees with loss of benefits if they join or support the Union. (c) Promising its employees economic benefits for the purpose of discouraging union activities. (d) Interrogating employees concerning their union activities. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Neal Jackson, Jr., and Pete Mancuso reinstate- ment to their former positions or, if these positions no longer exist, to substantially equivalent positions, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its facility in Texas City, Texas, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms to be provided by the Regional Director for Region 23, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. 7 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 a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 298 ANCHORTANK, INC. (d) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Decision what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or in any other manner discriminate against employees for engaging in union activities. WE WILL offer Pete Mancuso and Neal Jackson, Jr., immediate and full reinstatement to their former positions, or, if these positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination practiced against them. WE WILL NOT interrogate our employees concerning their union activities. WE WILL NOT promise our employees economic benefits for the purpose of discouraging their union activities. WE WILL NOT threaten our employees with loss of sick pay, paid holidays, loss of medical coverage, or any other benefits, if they join or support Oil, Chemical and Atomic Workers International Union, or any other labor organization. WE WILL NOT in any other manner interfere with our employees' exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. ANCHORTANK, INC. 299