Husky Oil Co.

430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Husky Oil Company andlnternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 307. Case 27-CA-4164 April 18, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On December 10, 1974, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs. 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, except as modified below,' and to adopt his recommended Or- der as, modified. We agree with the Administrative Law Judge, for the reasons stated by him, that Respondent's discharge of Roberts on June 14, 1974, violated Section 8(a)(3) and (1) of the Act. However, we disagree with his dismissal of the complaint's separate 8(a)(1) allegations. Thus, we find that Respondent also violated Section 8(a)(1) of the Act by Supervisor Sauer's interrogation of em- ployee Pulatie on June 13 as to whether the employee meeting which Pulatie had attended earlier that day was to discuss the Union. Whether or not the em- ployees discussed the Union at their meeting was of no legitimate concern to Respondent and, as such, the inquiry was inherently coercive. The fact that Sauer quickly assured Pulatie that Respondent was uncon- cerned with whether the employees unionized, since such unionization in any event seemed inevitable to Sauer, does not militate against a finding that the in- i We find without merit Respondent' s allegations of bias and prejudice There is no basis for finding that bias or prejudice existed merely because the Administrative Law Judge credited only the General Counsel's wit- nesses. As the Supreme Court has stated: ". total rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact " N.L.R.B. v Pittsburgh S.S. Company, 337 U.S. 656, 659 (1949) As to Respondent's additional argument that the Administrative Law Judge failed to give proper weight to the testimony of witness Edens, we note that he was not a totally disinterested witness because of his business relationship with the Respondent. In any event, his testimony was not materially in conflict with that of General Counsel's witnesses Furthermore, 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 (1950), enfd 188 F.2d 362 (C A 3, 1951). We have carefully examined the record and find no basis for reversing his credibility findings. quiry itself violated Section 8(a)(1) of the Act. Cf. Rochester Cadet Cleaners, Inc., 205 NLRB 773 (1973). Similarly, we find, in disagreement with the Ad- ministrative Law Judge, that Respondent violated Sec- tion 8(a)(1) of the Act by Sauer's threat of June 14 to discharge Roberts because of his union activities. The mere fact that Respondent promptly made good its threat by discharging Roberts does not make Sauer's utterance any less coercive or unlawful under the Act. We find that the fact that the Administrative Law Judge declined to rule on an alleged unfair labor prac- tice simply because General Counsel has failed to brief the issue to him is irrelevant. Jefferson Stores, Inc., 201 NLRB 672 (1973). Accordingly, we shall modify the - Administrative Law Judge's recommended Order to provide a remedy for the additional violations found. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Husky Oil Com- pany, Cheyenne, Wyoming, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Making threats that it will discharge employees because of their union activities. (b) Interrogating its employees with respect to their union membership, interests, or activities or those of their fellow employees. (c) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Local Union 307, or any other labor organization, by discriminatorily discharg- ing or otherwise discriminating against employees in any manner with regard to their hire and tenure of employment or any term or condition of employment. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: - (a) Offer George W. Roberts immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights or privileges, and make him whole for any loss of earnings he may have suffered by reason of Respondent's dis- crimination against him, such loss of earnings to be computed in the manner set forth in the section of the Administrative Law Judge's Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, and all other records necessary to ana- 217 NLRB No. 76 -HUSKY OIL COMPANY lyze and determine the amount of backpay, if any, due employee Roberts under the terms of this Order. (c) Post at Respondent's facility in Cheyenne, Wyo- ming, copies of the attached notice marked "Appendix." Copies of said notice on forms provided by the Regional Director for Region 27, after being duly signed byRespondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to ensure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 27, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees with discharge because of their union activities. WE WILL NOT unlawfully interrogate employees concerning their union membership, interests, or activities or those of their fellow employees. WE WILL NOT discourage membership in Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union 307, or any other labor organization, by discriminatorily discharging or otherwise dis- criminating against employees in any manner with regard to their hire and tenure of employment or any term or condition of employment. WE WILL offer George W. Roberts immediate and full reinstatement to his former job or, if that job no longer exists, 'to a substantially equivalent position, and pay him for losses suffered as a result of being discharged, with 6-percent interest. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by the National Labor Re- lations Act. HUSKY OIL COMPANY DECISION STATEMENT OF THE CASE 431 DAVID G. HEILBRUN, Administrative Law Judge: This case was heard at Cheyenne, Wyoming, on October 1 and 2, 1974,' based on a charge filed and amended June 18 and July 2, respectively, and complaint issued July 26 alleging that Husky Oil Company, called Respondent, violated Sec tion 8(a)(1) and (3) of the Act by interrogating employees in regard to signing authorization cards for International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Local Union 307, called the Union, by threat- ening to discharge the employee known as responsible for organizing with the Union and by discharging George W. Roberts because of his membership in and activities on behalf of the Union. Upon the entire record in this case, including my observa- tion of the witnesses, and upon consideration of briefs filed by General Counsel and Respondent, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent, a corporation with facilities located in Cheyenne, Wyoming, engages in refining crude oil. It annu- ally sells and ships products valued in excess of $50,000 from its Cheyenne, Wyoming, facility directly to customers located outside the State of Wyoming. I find, as Respondent admits, that it is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES Facts and Discussion In August 1973 Respondent commenced hauling crude oil by truck from producing wells of the vicinity, including those near Walden, Colorado. An organizational change affecting the hauling operation was instituted April 1 with the result that former Supervisor George W. Roberts became a driver. After brief interim arrangements John Sauer was hired April 23 as supervisor of Crude Oil Trucking. By June, the opera- tion utilized three tractor-trailer units driven out of a Cheyenne terminal on a nearly continuous basis by two-man teams. One unit was identified as E-2 with Roberts and Rob- ert Brown as its driving team. Brown had been hired by Respondent in May. Additional hauling capacity was pro- vided by employment of at least one part-time driver and a standing arrangement for supplemental service by contract hauler Ruan Transport. Repairs were performed on E-2 May 3, June 3, and June 11. In each instance the work order was signed by Roberts below phraseology authorizing repair. The two earlier repair jobs were expressly authorized by Sauer. The third was per- formed after emergency permission given Roberts telephoni- I All dates and named months hereafter are in 1974, unless indicated otherwise. 432 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD cally by a person of authority in Respondent's Denver, Colorado, office. On the prior day Roberts and Brown had determined not to drive E-2 again because of defective tie rod ends. Further, Roberts had been experiencing headaches for about 2 weeks believed to be caused by an exhaust leak in E-2 (notwithstanding ostensible exhaust system repair on both May 3 and June 3). Brown's driver's daily logs for June 9 and 10 contained daily vehicle inspection report remarks of "steering axle shake, popping noise" and "front end need work," respectively. After the third of these repairs Brown hauled a load of crude during daytime on June 12 and Roberts made an eve- ning haul which he completed at approximately 1:30 a.m. on June 13. Both drivers considered the left torsion bar weak at the time and Roberts detected continuing exhaust leakage. Brown's inspection report for June 12 contained no remarks and Roberts' is not in evidence. At the time Brown consid- ered E-2 safe to drive a "few more days" while Roberts termed it "inoperable." Roberts and Brown each testified that on June 11 they were jointly instructed by Sauer to take E-2 to Colorado Ken- worth, located in Greeley, Colorado, on June 13 for further necessary repairs. Brown recalls Sauer stating the unit should be into Greeley about 8 or 9 a.m. After being so instructed, Roberts and Brown figured their immediately planned runs and anticipated Brown would actually drive the E-2 tractor into Greeley the morning of June 13. At 8:30 a.m. on June 13 Brown telephoned Roberts at home to state he was leaving for Greeley with E-2 and wanted to be met there to be driven back. At the time both drivers were aware that unit G-8 was then at Colorado Ken- worth for repairs. Brown arrived about 9:30 a.m. and spoke with Acting Shop Foreman George Edens in Roberts' pres- ence concerning the mechanical condition of E-2 and defects in its lights. Repair to G-8 had been completed and the drivers unsuccessfully attempted to reach Sauer by telephone for permission to drive G-8 back to Cheyenne. Failing in this, they returned in Roberts' personal vehicle to Cheyenne. That afternoon they went to the union hall and along with other drivers signed authorization cards. R. D. Pulatie testified that he signed an authorization card in the presence of four-other drivers on June 13 and then proceeded to the terminal. Pulatie reached the terminal as other drivers also arrived to pick up their cars. Pulatie re- called entering the terminal office where Sauer soon arrived, asking why Pulatie was late to begin his run. Pulatie answered that the drivers had had a meeting. Sauer inquired if this was to "talk union" and Pulatie affirmed. Sauer then remarked, "[T]hat is no problem because the company doesn't mind, because eventually the refinery will force the drivers to go union anyway." Ward Lake testified that he signed an au- thorization card at the union hall on the afternoon of June 13 immediately after coming off a trip. He returned to the termi- nal office to complete his paper work and found Pulatie and Sauer inside. Lake recalled that as Sauer was undistractedly present and within 10 feet of the exchange, Pulatie made a gesturing remark inquiring whether Lake had signed a card to which the latter replied he certainly had. Nothing more occurred at the time, however Lake recalled remarking to Sauer the next day that he could work with or without a union, feeling it was a matter on which he would support the desire of the other men. Sauer testified that on June 11 he advised Roberts (but not Brown) that E-2 was scheduled into Colorado Kentworth for necessary repair on June 17. Sauer had arranged this after ascertaining that G-8, at the time in more urgent need of repair, could be taken first on June 12. Sauer selected Roberts for this advice since he was "first man" for E-2 as having longer employment with Respondent than Brown. Sauer, a resident of Greeley, went to Colorado Kenworth at 8 a.m. on June 13 and was informed G-8 would be ready that day. He then proceeded into Denver for business there at Respon- dent's office. Upon completion of this he returned to Colorado Kenworth about 1 p.m. and found E-2 in the shop with preparatory mechanical dismantling already performed. Sauer spoke with Edens to particularize desired repair work, concerned mainly at the time with steering and torsion bar assembly. He then "departed for Cheyenne to transport a driver back to G-8 and return the unit to service. While traveling, he used his mobile telephone to attempt contact with Roberts and Brown. Sauer testified that Roberts could not be reached at his home throughout the day but Brown answered an early afternoon call and stated E-2 was in Gree- ley because Roberts had said, "[T]he truck was suppose[d] to be in the shop today."2 Upon reaching Cheyenne, Sauer at- tempted without success to obtain a substitute unit from Ruan Transport and eventually learned of a well "shut-in" traceable to insufficient hauling capacity on June 13. While present in the terminal office that afternoon, Sauer recalled asking Pulatie why he was late and hearing him answer that "the boys had had a meeting." He denied asking Pulatie what the meeting was about, assuming it covered the dissatisfac- tion of drivers with Sauer's intention to adjust fuel pumps in each truck to reduce excess fuel oil consumption, although at the expense of engine power. Roberts recalled that at 9:30 a.m. on June 14, he went to the terminal office in response to Sauer's telephone message. Upon arrival, he found only Sauer present. Roberts testified that Sauer said he understood that "[Y]ou fellows have went down and signed for the Union," which Roberts affirmed adding he thought 100 percent had so signed. Roberts testi- fied further that Sauer continued by saying "[M]y theory is either you or Jim Tylle is ring-leader on this and I am going to get rid of you this morning." Drivers Tylle and Gary Carey arrived, and in their presence Sauer terminated Roberts for stated reasons of taking E-2 to Greeley and telling the oil lease pumper at Walden that Sauer was often difficult to reach because he farmed on the side. Sauer's version of June 14 is that Roberts hung the tele- phone up on him to end an 8 a:m. call so he telephoned the home again at 9:30 a.m., leaving word that Roberts should come into the terminal office. Sauer testified that soon Rob- erts arrived, together with Tylle and Carney. He recalled asking Roberts why E-2 was taken into Greeley early and that Roberts answered the unit was unsafe to drive. Sauer added that he didn't like "the rumors or the stories" 'about the Walden pumper being told by Roberts that Sauer was 2 Brown denied receiving such a call, testifying instead that Sauer spoke to him in the terminal office the afternoon of June 13 and exhibited disheart- enment when Brown explained the absence of E-2 was according to Sauer's own instructions HUSKY OIL COMPANY often absent from the office to work on'his farm. Sauer testi- fied that he terminated Roberts then for "taking E-2 to Gree- ley to the shop on the wrong day" and for telling "that I was out on my farm working when actually I was away on com- pany business." Sauer had maintained a system of personnel notations con- cerning drivers under his supervision. On two occasions in May he recorded contracts from Walden in which the pumper associated difficulty in reaching Sauer with state- ments of Roberts that Sauer farmed. On May 9 Sauer warned Roberts not to open his truck's tachometer clock. In early May concerning E-2's repair at the time, Sauer told Roberts the equipment showed too much speed and abuse. On May 15 Sauer spoke critically to Roberts about reported driving violations and his general conduct on the road. Shortly after May 15 Sauer instituted a change in oil sampling procedure which he observed seemed to upset Roberts. In late May Sauer spoke to Roberts saying his tachometer charts should agree with his driver logs. While Respondent contends Roberts, was discharged for continuing rule violations, Sauer actually confined his stated reasons for discharge to the events of June 13 and standing innuendo concerning his farm. It is apparent that simultane- ous removal from service of two units would prejudice Re- spondent's hauling operations. It is also clear that disinter- ested witness Edens registered surprise over the drop of E-2 on June 13. The implications of these facts are far less significant, however, than testimony which I credit to the effect that Roberts and Brown were simultaneously in- structed by Sauer to present E-2 for repair on June 13. The job of these team members was to maintain a hauling cycle and to complete required reports. Awareness of G-8 being under repair gave rise to no duty for the driving team to reconfirm Sauer's order. Several variables were present such as oil field production, availability of Ruan equipment, refin- ery capacity, risk of truck damage without immediate repair, and configuration of open shop time in available repair facili- ties. These were matters solely within Sauer's responsibility. To saddle Roberts with higher personal responsibility than Brown on a seniority-like basis was unwarranted. As to actual movement of E-2 on June 13, no effort was made to stage a confrontation between Roberts and Brown as to what, if anything, was said between them on the point. The essential question is whether Sauer uttered the identifiable and unmis- takable date of Thursday, June 13, to Roberts and Brown as the morning on which E-2 should reach Colorado Kenworth. I am satisfied he did and that related events must be viewed from that standpoint. As between chief antagonists Roberts and Sauer, I credit the former on the two crucial issues of fact. These relate to the time of E-2 repair and whether Sauer uttered a plain threat to discharge Roberts for union activities. Roberts was uncertain of the day on which repair instructions were given and showed other imperfections of memory. His perception of the operating condition of E-2 did not coincide with Brown's and he absorbed little of the Brown-Edens conversa- tion occurring close to him on June 13. 1 do not believe these inadequacies impaired his recollection of the factual conflict areas noted or that he otherwise sought to distort the truth. Sauer was also contradicted by Brown as to E-2 repair and how contact occurred between them on June 13, by Pulatie 433 as to inquiry of the union meeting's purpose and by William Harrell who corroborates Brown. It is not this 'numerical imbalance but the essential implausibility of Sauer's tes- timony that causes me to disbelieve him. Claimed continuing derelictions were not timely brought to Roberts' attention, other than as problems common to other drivers or regarding minor, explained error. Sauer may have diaried his supervi- sory activities for convenience, reassurance, or from habit. Nevertheless such notations did not serve as traditional per- sonnel recordings and treated on and immediately prior to June 14 as a serious accumulation of job deficiencies. Sauer testified that he even wrote in his "file" concerning the June 11th repair instructions for E-2, but such notation was not produced in support of Sauer's factual contentions. At every salient juncture Respondent's reasons for ter- - minating Roberts appear contrived and pretextual. Respond- ent argues that context and probabilities should compel an opposite conclusion. Each assertion in this regard is too shal- low or speculative to be influential. Assuming Edens regis- tered mild surprise on the arrival of E-2, this reaction would deal only with the nature of his prior communications with Sauer and, without more, does not seriously affect the direct testimony of what instructions Sauer gave the E-2 team. That Edens was guided in the scope of repairs by Sauer's directives and that neither driver signed a work order on June 13 is explainable both in terms of the preexisting Sauer-Edens con- tact and the earlier appearance of Sauer on June 13 coupled with expectation of his later return that day relative to an- ticipated completion of G-8 repairs.3 Respondent argues that "more repairs" were improbable as soon as June 13, an assertion that overlooks long awaited availability of the new bell crank component for the truck's suspension. Respondent argues further that Brown's credibility is flawed by failure to "identify" his claimed conversation with Sauer during direct examination. This assertion is simply erroneous on the rec- ord. Finally, Respondent postulates that drivers rigged events to permit total group presence at the union hall on June 13. The convenience of such a turnout is conceded; the presence of an underlying scheme, however, remains sheer conjecture. General Counsel has established a prima facie case through credited facts showing a stated intent to discharge Roberts for a classic form of protected activity. Respondent argues it is "absurd" to believe such an utterance occurred. I reflected on the oddity of it and can only observe that tonal factors in this case offer some explanation. Testiness existed between Rob- erts and Sauer. The former seemed still affected by chagrin over discord associated with the organizational change on April 1, while the latter maneuvered to secure his supervisory authority over a headstrong group of drivers. The neutraliz- ing effect of Sauer's remark to Pulatie concerning spillover of unionization from the refinery work force is also noted. The composite persuasion of these several factors is that Sauer acted out the natural meaning of his words. 3 The showing of Roberts having signed earlier work orders and Brown not having signed Colorado Kenworth's is without significance. Earlier re- pairs were performed in Cheyenne by Diesel engine specialty shops having probable familiarity with Roberts based on his former position. The repair authorization policy of Colorado Kenworth is not known and Edens, hold- ing only an acting capacity at the time, had predictably cautious reason to await Sauer's return for the formality of signing a work order. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respecting paragraph V(a) of the complaint, the evidence supportive of alleged interrogation is found in Pulatie's tes- timony. While crediting his version of the discussion with Sauer, I find it was uncoercive in nature. Sauer probed for why employees met, but his immediately following remark stripped any threatening aspect from the dialogue. This blurted questioning of an employee coupled with bland reas- surance leaves the episode without the elemental characteris- tics of prohibited Section 8(a)(1) conduct 4 Respecting paragraph V(b) of the complaint, the credited utterance referred to in this allegation merged into the effec- tuated termination of Roberts only moments later. General Counsel's brief does not address the subject as an issue and I consider it unnecessary to make a separate finding. The discriminatory discharge constitutes a derivative Section 8(a)(1) violation and is so expressed as a conclusion of law. In summary, no independent 8(a)(1) violations are found; however, the credited evidence as a whole provides ample persuasion to conclude Respondent's discharge was moti- vated by Sauer's belief that Roberts was instrumental in other drivers signing cards for the Union. Justification does not exist to fault Roberts for the taking of E-2 to Colorado Kenworth on June 13. Furthermore, the claimed hauling bind that arose would have been complicated by Pulatie's 4 I attach no significance to a conversation immediately following be- tween Pulatie and Lake, as Sauer's mere presence during the exchange of remarks cannot constitute constructive interrogation. General Counsel ap- pears to contend this facet of testimony establishes or buttresses a showing of unlawful interrogation but no rationale to so conclude is advanced. 5 The transcript's index is corrected to list Sauer as a recalled witness commencing p 252 2-1/2-hour lateness, yet no hint of criticism was raised not- withstanding Sauer being, "in trouble [Thursday afternoon] with just one unit of my own [to move crude]." Remarks concerning his-private farming could not reasona- bly constitute a true basis for discharge . At most they were meddlesome, but if Sauer was as available by mobile radio- as he claimed, the Walden lease pumper would have had no practical difficulty with contact.' CONCLUSIONS OF LAW 1. Respondent, by discharging George W. Roberts because of his membership in or activities on behalf of the Union, has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 2. Respondent has not violated the Act in any respect other than as specifically found. REMEDY I shall recommend that Respondent cease and desist from its unfair labor practices, that it reinstate George W. Roberts with backpay as provided in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and post an appropriate notice. [Recommended Order omitted from publication.]