Richmond Refining Co., Inc.

16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Richmond Refining Company, Inc. and International Administrative Law Judge. Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America, Local Union No. 592. Cases 5-CA-6363 and 5-CA-6423 June 26, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 15, 1974, Administrative Law Judge Melvin J. Welles issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed, as an answering brief, his brief to the Administrative Law Judge. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. AMENDED CONCLUSION OF LAW "I. Respondent, by threatening employees with discharge if they engaged in union activities, or went on strike, or testified at a Board hearing, by promising a raise to employees contingent on cessation of union activities, and by discharging Thomas Tellier, has en- gaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act." ORDER i We note that although the Administrative Law Judge in Sec 11, A, of his Decision found that the Respondent had violated the Act by an unlawful promise of benefits , he inadvertently omitted that finding from his conclu- sions of law, Order, and Notice to Employees We shall amend them accord- ingly The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer Thomas Tellier immediate and full reinstatement to his former job or, if thatjob no longer exists, to a substantially equivalent po- sition, and pay him for losses he suffered as a result of his discharge. WE WILL NOT threaten employees with loss of their fobs for engaging in union activities, or in a strike, or for testifying at a Board hearing. WE WILL NOT promise employees benefits con- tingent upon a cessation of union activities. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of rights under Section 7 of the Act. RICHMOND REFINING COM- PANY, INC (Employer) Pursuant to Section 10(c) of the National Labor Dated By Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge as modified herein and hereby orders that Respondent, Richmond Refining Company, Inc., Richmond, Virginia, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as modified below: 1. Insert the following as paragraph 1(c) and relet- ter the present paragraph 1(c) and l (d): "Promising employees a raise contingent on a ces- sation of union activities." 2,. Substitute the attached Appendix for that of the (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21201, Telephone 301- 962-2822. 212 NLRB No. 1 DECISION RICHMOND REFINING COMPANY, INC. meaning of Section 2(5) of the Act. STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: This case was heard at Richmond, Virginia, on January 9, 1974, based on charges filed October 12, 1973, and November 16, 1973, and complaints issued November 23 and November 29, 1973, consolidated for hearing on the latter date, and alleg- ing violations of Section 8(a)(1) and (3) of the Act. The General Counsel and Respondent have filed briefs. Upon the entire record in the case, including my observa- tion of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZA- TION INVOLVED Respondent contends in its brief that it is not engaged in commerce as defined in Section 2(6) of the Act. The General Counsel relies on a Decision and Direction of Election is- sued October 25, 1973, by Acting Regional Director Charles B. Slaughter of Region 5, Case 5-RC-8867, in which juris- diction over Richmond Refining Company was asserted on the basis of the Company having revenues of $519,449 in 1972, of which about half was received from Norfolk Tallow Co., Inc., which in turn had been found by the Board in 19631 to have been engaged in commerce because it "shipped goods, materials and products valued in excess of $50,000 directly to points located outside the Common- wealth of Virginia." Respondent claims, in effect, that it is not bound by the representation decision of the Acting Regional Director, and asserts that the representation deci- sion was wrong because the Hearing Officer in that case stated on the record "it would be inappropriate to close the record at this time because we lack what the Hearing Officer considers to be essential data on commerce...: . At the hearing in the instant case, Respondent objected to the introduction into evidence of Case 5-RC-8667. In overrul- ing the objection, I stated to Respondent's counsel that the representation case determination "would be binding, un- less there is other evidence to present ," and added, "Since we're dealing with commerce, you are perfectly free to ad- duce evidence, if you are continuing to claim your client is not engaged in commerce within the meaning of the statute or within the purview of the Board's standards." No further mention of "commerce" or "jurisdiction" was made during the hearing. Accordingly, I find, based on the representa- tion proceeding, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.' The Charging Party is a labor organization within the Norfolk Tallow Co., Inc., 154 NLRB 1052, 1053-1054. 2 The above-quoted statement of the Hearing Officer is, of course, not a ruling in that case; the Acting Regional Director's Decision is. As to the fact that Norfolk is a 10-year-old case, there is a presumption (rebuttable) of continuity of the facts found there, and Respondent, although specifically advised of its right to present any evidence it wished in this connection, did not do so. See N.L V. Casino Corp., d/b/a Silver Nugget, 174 NLRB 42, 43; Green County Farm Bureau Cooperative Association, Inc. v. N L.R B., 317 F.2d 335 (C.A.D.C., 1963). II. THE UNFAIR LABOR PRACTICES A. Facts and Discussion 17 The complaint alleges that Respondent violated Section 8(a)(1) by the conduct of Plant Foreman Virgil Whetzel in threatening employees with discharge for engaging in union activities and promising them benefits to persuade them to reject the Union, and by the conduct of Plant Manager James Garnett in interrogating employees about their union activities and in creating the impression of surveillance. The complaint also alleges that Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily discharging employees Herman Whitley and Thomas Tellier. Employees Clifton Tyler and Sylvester Chavis testified to various statements made by plant' foreman Whetzel, who was not called as a witness. Whetzel told Tyler, with another employee, Wilkinson, present, that if they talked about union activities on the job they could be fired. He told Tyler, Wilkinson, and Chavis 3 that "if they went out on strike, tomorrow, we could look for another job." Whetiel also told Tyler and Chavis that if they testified in the Board unfair labor practice hearing, they might lose their jobs. Finally, Whetzel told Tyler that the employees had not received raises because they were trying to organize a union, but that since the two "troublemakers," Tellier and Wilkinson, were gone, they would get a raise. That these statements consti- tuted threats and promises of benefits violative of Section 8(a)(1) is, of course, manifest. Respondent, however , asserts that it is not responsible for Whetzel's actions because he was not a supervisor or an agent within the meaning of Section 2(11) and (13) of the Act. In the aforementioned representation case involving the Company, the Acting Regional Director concluded that Whetzel was not a supervisor .4 And, despite its contention that the decision in the representation case was not binding upon it with respect to the Acting Regional Director's asser- tion of jurisdiction, Respondent argues that his conclusion in that same case that Whetzel is not a supervisor "is bind- ing upon the Board in the instant proceeding." The General Counsel took the position at the hearing, and reiterates in his brief, that Whetzel was at all material times an "agent" of Respondent, within the meaning of Section 2(13) of the Act, and adduced evidence at the hearing in support of this position. Employee Tyler testified that he reports to Whet- zel, that Whetzel reviews the work of the warehousemen, and that he assigns them to particular tasks. Majors testified that Whetzel "takes care of the plant and the boiler," that he had interviewed applicants who later were hired, that 3 Chavis' name appears as "Chambers" in the transcript at the point where Tyler is testifying. It is evident that itis Chavis, who later testified to the same effect, whom Tyler was referring to. ° He said "The record indicates that neither Whetzel nor Major [his status is not involved in this case ] can effectively recommend that employees be hired or fired. Indeed, their recommendations . are always independently investigated by the plant manager . In addition, there is no record evidence which indicates that Whetzel . . uses any independent judgment in direct- ing the work of other employees. Moreover, [he] received the same benefits as the other unit employees. Under the circumstances , the undersigned con- cludes that Virgil Whetzel [is] not a supervisor .. . 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Whetzel has the authority to discharge employees, and that he assigns work to the warehousemen, and can change their assignments. Chavis testified that the warehousemen report to Whetzel, who assigns the work to them, can change their assignments, and listens to their complaints. After Chavis was hired, he was told by Plant Manager Garnett to report to Whetzel. Whetzel spends very little of his time in manual work, in contrast to the warehousemen generally. Finally, Plant Manager Garnett testified that Whetzel "is in charge of the plant over there. He has the boiler to maintain and he checks the men to see that they're on the job and doing what has to be done in that part of the plant . . . He selects employees for hire" and Garnett places weight on what he says. Whetzel "assigns the work around the plant to the men." He also buys supplies for the plant, and advises Gar- nett when supplies are low. The foregoing facts, particularly those elicited from Plant Manager Garnett, clearly demonstrate that Whetzel was in fact a supervisor and, as such, also an "agent" of Respon- dent whose conduct is attributable to Respondent. Just as Respondent was expressly advised that the representation case determination on commerce was binding on it only if there was no evidence presented to rebut the conclusion there reached, and told that it was "perfectly free to adduce evidence," the General Counsel was bound by the represen- tation case determination with respect to Whetzel only to the extent that no evidence to the contrary was presented in the complaint proceeding. The Court of Appeals for the District of Columbia pointed out in Amalgamated Clothing Workers of America, AFL-CIO [Sagamore Shirt Company] v. N.L.R.B, 365 F.2d 898, 905 (1966), that "The findings of the Regional Director may be accorded `persuasive rele- vance,' a kind of administrative comity, aiding the Examin- er and the Board in reachingjust decisions, subject however to power of reconsideration both on the record already made and in the light of any additional evidence that the Examiner finds material and helpful to a proper resolution of the issue." The evidence in the instant case so overwhelm- ingly supports the conclusion that Whetzel was in fact a supervisor as to make "a proper resolution of the issue" here a conclusion, contrary to the Regional Director, that Whet- zel fully meets the criteria for supervisory status set forth in Section 2(11) of the Act. There is neither any inconsistency nor double standard in my conclusion, based on the evi- dence in this case, that Whetzel was a supervisor and an agent, and my conclusion, based on the lack of evidence in this case to the contrary, that the assertion of jurisdiction herein is properly based on the assertion of jurisdiction in the representation proceeding. Cf. Stanley Air Tools, 171 NLRB 388, 390. As indicated above, the uncontroverted testimony estab- lishes that Whetzel engaged in conduct violative of Section 8(a)(1) of the Act. Having concluded that Respondent is responsible for that conduct, for the reasons set forth herein, Respondent thereby violated Section 8(a)(I) of the Act. The alleged 8(a)(1) violation by Plant Manager Garnett is based solely on the testimony of employee Whitley, who said that Garnett brought up the subject of the union cam- paign while the two were riding in Garnett's car making a delivery, asked Whitley if he knew who was organizing the Union, and what he thought about the Union. Whitley did not impress me favorably as a witness. He indicated an almost complete lack of recollection as to when events oc- curred. And, after testifying that he was told by Garnett on July 23 that his services were no longer required, and that he was not employed elsewhere at the time, he was forced to admit that he had been accepted back to work by James River Bus Company, his former employer, on July 20, had begun to drive for them on July 21, worked for them on July 22 and 23 as well, and has continued to do so. Accordingly, I can place no reliance on Whitley's testimony, and do not find that Respondent violated Section 8(a)(1) of the Act by any alleged statements of Garnett. Despite the fact that I can give no credence to Whitley's testimony, there is evidence that points to Respondent being illegally motivated when it purported to fire him on July 23, specifically, the testimony of Tyler and Majors to the effect that shortly after Whitley's "discharge," when employee Tellier informed Garnett that he (Tellier) had been actively campaigning for the Teamsters, they overheard Whetzel say to Garnett that Garnett "fired the wrong man," and Garnett responded "You talk too much." 5 It is easy to infer from this interchange that Respondent believed Whitley to have had an active role in the Union's organizational campaign. However, there is no other credible evidence to establish a violation of Section 8(a)(3) in Whitley's "discharge." Even assuming, therefore, that the above evidence would normal- ly suffice to make out a violation, in view of the fact that Whitley did not even sign a union card until late in the afternoon of July 20, after he had been accepted back to work for James River Bus Company, and had resumed working for James River on July 21, with no intention of returning to Richmond Refining, and continued to work permanently for James River, it would be an exercise in futility to find that Whitley's discharge was violative of the Act.' The final issue in this case is whether Respondent violat- ed Section 8(a)(3) and (1) by discharging Thomas Tellier on September 14, 1973. Tellier was hired in September 1972, as a route driver. He received a substantial raise in January 1973, and there is no question raised by Respondent about his competence in his work.? In June 1973, Tellier contacted the Meat Cutters Union, but subsequently, early in July, he decided to contact the Teamsters about representing Respondent's employees, and he did so. On July 20, he met with a Teamsters' official, signed an authorization card, and obtained a number of authorization cards which he pro- ceeded to have signed by about 7 or 8 of Respondent's employees. On July 23, Tellier informed Garnett that he "was actively and openly campaigning for the Teamsters." He attended a number of Union meetings thereafter. On August 24, the day of the Board hearing in the representa- tion case, Tellier, who had hoped to attend that hearing, was given additional work, to pick up at a number of stops. He went out, only to discover that one stop had the wrong 5 1 credit Tyler and Majors in this respect Garnett testified that it was "voiced around the plant" that he had fired the wrong man, but that he did not "recall" Whetzel saying that to him 6 Were a violation to be found , in the circumstances recited above , it would not call for any remedy to Whitley. 7 Plant Manager Garnett testified that Tellier was a good employee RICHMOND REFINING COMPANY, INC. address, and at another there was no such address at all. He told his foreman about this. No one ever complained to him about not having executed the particular assignment .8 On September 6, Tellier told Garnett that he was consid- ering getting another job, with Safeway. The next day, Gar- nett called Telher into his office, and gave him a letter of resignation to sign. Tellier refused to do so, telling Garnett that he no longer had any desire to go to Safeway.' During the next week, Garnett mentioned to Majors that Tellier had resigned, and Tellier mentioned to Majors that he had not, when Majors told him that rumors had started around the plant that Tellier had signed a letter of resignation. On September 14, when Tellier finished his route and came into the plant, he discovered his pay was not on the clip board where it usually would be. He went to the office, asked Garnett about it, and Garnett gave him his regular check and told Tellier to return to see him when he was finished. Tellier did so, and Garnett then gave him his final pay. Tellier told Garnett he had not signed a letter of resig- nation, and would be reporting for work the following Mon- day. Garnett responded "You need not bother to report for work, because your time card will not be there, you are no longer allowed on the company trucks, in fact you are no longer allowed on company property." Garnett testified on direct examination that Tellier told him on September 14, "I'm not quitting, I've decided to stay," and Garnett re- sponded that Tellier had already resigned. On cross-exami- nation, Garnett reiterated, in response to being asked why he did not keep Tellier when Tellier said he wanted to stay, "He had already resigned and his checks were in. I had already put the information into Norfolk that he had re- signed." Only when he was then asked, "But you said you had fired other people and taken them back, why didn't you take Tellier back?" did Garnett reply, "This was a time when I didn't need Tellier either. The work wasn't that heavy any more." As noted above, I have found that Tellier never did "re- sign," or tell Garnett he was resigning, only that he con- templated leaving (said on September 6), and then on September 7 that he was not going to leave, and would not sign a letter of resignation. Since Garnett's own testimony makes it apparent that Garnett had not contemplated firing Tellier (he admittedly had no "cause" to do so with respect to Tellier's work, and there is no suggestion that he would have done so because of a decreasing work load), and since Tellier did not in fact resign, I am convinced that Garnett tried to use Tellier's initial contemplation of getting a better job, telling others in the plant that Tellier had resigned and signed a letter to that effect, so as to box Tellier in, and rid the Company of the prime union advocate among the em- ployees. Garnett's "I didn't need Tellier" was an obvious afterthought, never told to Tellier at the point when Garnett 8 This is based on Tether's testimony. Garnett dented that there were "non-existent clients." I credit Tellier's testimony, particularly because no action was taken by Garnett concerning any failure by Tellier to make the pickups in question. 9 Garnett testified that Tether told him on September 7, Tellier said he would leave in 1 week, and added a "P.S." to the resignation letter stating "one week's notice, 9-14-73," and then proceeded to tear up the resignation letter. I credit Tellier's version of what occurred, which was confirmed by Majors and Tyler. 19 admittedly knew that Tellier wanted to stay, not put forth as an explanation during Garnett's direct examination, and not as the primary reason even on cross-examination. Assuming, contrary to my finding above, that Tellier had informed Garnett on September 6 that he was resigning, and assuming further that the next day, when Tellier did not indicate any change of heart in that respect, Garnett cer- tainly knew on September 14 that Tether had changed his mind about resigning. Yet, Garnett refused to retain Tellier at that time, telling him, according to Garnett, that he "had already resigned." Respondent argues in its brief, from this assumed posture of the facts, that, "Once Tellier submitted his resignation to Garnett . . . and his resignation was ac- cepted on that same date, Respondent was and is under no obligation to rehire him." Although I do not think the word "rehire" fits even the assumed facts, it is true that Respon- dent had no legal obligation to keep Tether, whether or not he had said he was going to resign, and whether or not he had signed a letter of resignation. The question is why Re- spondent refused to keep Tellier in its employ, and the answer to that question, as I have already concluded is because of Tellier's leadership in bringing the Union into the plant. So the result I reach would be the same even if Tellier had told Garnett on September 6 that he was going to resign, and on September 7 that his last day would be September 14. For the foregoing reasons, I find that Re- spondent violated Section 8(a)(3) and (1) of the Act by discriminatorily discharging Thomas Tellier. Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent, by threatening employees with discharge if they engaged in union activities, or went on strike, or testified at a Board hearing, and by discharging employee Thomas Tellier, has engaged in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. 2. Respondent has not violated the Act in any respect other than those specifically found. THE REMEDY I shall recommend that Respondent cease and desist from its unfair labor practices, that it reinstate Thomas Tellier with backpay as provided in F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, and post an appropriate notice. 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: ORDER 10 Respondent, Richmond Refining Company, Inc., Rich- 10 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become Continued 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mond, Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Teamsters Local Union No. 592, or any other labor organization, by discriminatori- ly discharging, or otherwise discriminating against employ- ees in any manner with regard to their hire and tenure of employment or any term or condition of employment. (b) Threatening employees with loss of their jobs if they should engage in a strike, or testify at a Board hearing, or engage in union activities. (c) In any like or related manner interfering with, re- straining or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Thomas Tellier immediate and full reinstate- ment to his former position or, if this position no longer exists, to a substantially equivalent position without preju- dice to his seniority or other rights or privileges. (b) Preserve and upon request, make available to the Board or its agents, for examining or copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Richmond, Virginia, plant copies of the attached notice marked "Appendix." 11 Copies of said no- tice on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps the Re- spondent has taken to comply herewith. its findings, conclusions, and Order, and all objections thereto shall be 11 In the event that the Board's Order is enforced by a Judgment of a deemed waived for all purposes. United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "