Amoco Oil Co.

National Labor Relations Board - Board DecisionsApr 19, 1976

223 N.L.R.B. 946 (N.L.R.B. 1976)

946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Amoco Oil Company , Marketing & Transportation Division and Oil, Chemical and Atomic Workers In- ternational Union , AFL-CIO . Case 23-CA-5637 April 19, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On December 29, 1975, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge to the extent consistent herewith. Employee R. N. Thompson testified to a conver- sation in late February 1975 in the office of Billy O. Wyrick, Respondent's terminal manager. Union ac- tivity among Respondent's drivers had only recently commenced and Wyrick questioned Thompson con- cerning the latter's knowledge of such activity. Thompson, who only a day or two before had dis- tributed union cards and solicited support for the Union among the drivers, disclaimed any knowledge of the union drive. Although the Administrative Law Judge apparent- ly found that this conversation took place,' he con- cluded that under the circumstances neither a finding of the violation nor a remedial order was "appropri- ate." In this regard the Administrative Law Judge noted that the Union is now the certified bargaining representative of Respondent's drivers and that, as of the time of the hearing, the parties were negotiating for an agreement. We of course reject the suggestion implicit in the Administrative Law Judge's rationale for dismissing this part of the complaint that Respondent's eventual decision to recognize and bargain with the Union 1 The General Counsel 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 credibili- ty 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 findings. 2 As noted by the Administrative Law Judge , Wyrick was not asked about the alleged February interrogation of Thompson . Hence Thompson's ver- sion of the incident stands uncontradicted on the record. either cured its prior unlawful conduct or vitiated the need for a remedial order. In our view the Adminis- trative Law Judge's reasoning in this regard is clearly inconsistent with the purposes and policies of the Act. Inasmuch as we are satisfied that the record am- ply supports a finding that Respondent violated Sec- tion 8(a)(1) by interrogating Thompson, we shall or- der an appropriate remedy. THE REMEDY Having found that Respondent violated Section 8(a)(1) of the Act, we shall order it to cease and de- sist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. ORDER Respondent , Amoco Oil Company, Marketing and Transportation Division , Texas City, Texas, its offi- cers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Interfering with rights of employees to engage in protected concerted activity by interrogating em- ployees about their union or other protected activity. (b) In any like or related manner interfering with, restraining , or coercing employees in the exercise of their rights to self-organization, to form , join, or as- sist any labor organization , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection , or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its Texas City, Texas, terminal copies of the attached notice marked "Appendix."3 Copies of said notice , on forms provided by the Regional Director for Region 23, after being duly signed by Respondent 's representative , shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted . Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced , or covered by any other material. (b) Notify the Regional Director for Region 23, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 3In 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." 223 NLRB No. 134 AMOCO OIL COMPANY 947 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with the right of em- ployees to engage in protected concerted activity by interrogating them about union activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. AMOCO OIL COMPANY, MARKETING TRANSPORTATION DIVISION DECISION STATEMENT OF THE CASE visited the Union's offices in Texas City and obtained union authorization cards which he distributed to the driv- ers for signature on or about February 24. Thompson and most of the other drivers who signed the cards did so on February 24; no cards were executed before that date. On March 6 the Union filed a representation petition for a drivers unit at the Texas City terminal (Case 23-RC- 4205), and on March 17 it sent Respondent the names of 12 employees (including Thompson) whom it described as members of the Union's "organizing committee." A con- sent election was held on April 17, and a majority of em- ployees voted for the Union. Thompson was the Union's official observer at the election. In objections filed on April 23 to conduct of the election and also in an unfair labor practice charge filed on April 30, Respondent alleged that Thompson had threatened employees in order to compel & their support for the Union. Respondent withdrew the ob- jections and the charge, and on May 13 the Board certified RALPH WINKLER, Administrative Law Judge: Upon charges and amended charges filed on June 17 and 27, 1975, a complaint issued by the General Counsel on Au- gust 8, 1975, and an answer filed by Respondent, a hearing was held in Galveston, Texas, on September 25-26, 1975. Upon the entire record in the case, including my obser- vation of the demeanor of witnesses and upon consider- ation of briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent Amoco is a Delaware corporation engaged in the sale and distribution of petroleum products at Texas City, Texas ; it is an employer within the meaning of Sec- tion 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Oil, Chemical and Atomic Workers International Union, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES All dates herein are in 1975 unless otherwise indicated. R. N. Thompson is one of approximately 20 transport drivers employed at Respondent's terminal in Texas City, Texas, under Manager Billy O. Wyrick and Dispatcher Ro- gert Dawes. Thompson was suspended without pay for 3 weeks beginning on or about June 26, and the principal issue in this case is whether Respondent laid off Thompson for union reasons. Dawes was promoted to the dispatcher position in De- cember 1974, and employees became displeased with some changes in working conditions made by Dawes. Thompson the Union as statutory bargaining representative of the drivers. Respondent thereupon recognized the Union and, as of the hearing herein (September 25), the parties were engaged in contract negotiations. Thompson was elected chairman of the union negotiating committee, and driver Billy Howard is his alternate. The Suspension Manager Wyrick suspended Thompson for 3 weeks, a month and a half after the Union's certification and after Respondent had recognized and begun bargaining with the Union. According to the General Counsel, Respondent's motivation for the layoff is to be found in Thompson's prominent role in organizing the Union. Respondent, on the other hand, assertedly relates the suspension to "an undisputed background of problems regarding Mr. Thompson's job performance." The "background of problems" goes back to individual written evaluations made by Wyrick on February 4 and 5, and which he reviewed with each driver at the time. Com- pared with other drivers, Thompson's rating was "quite sat- isfactory," as asserted by the General Counsel; however, unlike the other drivers, Thompson's evaluation stated that he should "Improve on occasional tardiness." While Wyr- ick did discuss the tardiness item with Thompson on Feb- ruary 5 to the effect that Thompson had been "occasional- ly . . . late for a schedule" and told Thompson that he "wanted it improved," Respondent agrees that Thompson's occasional tardiness "was barely a noteworthy problem" as of February 4. Respondent operates its trans- port equipment on a relatively strict schedule. Thompson was late again on February 7, 8, and 9; and a week later, on February 15 and 16, he did not report at all although he was scheduled to work and even though the dispatcher had turned down Thompson's request to be off those days. In a February 20 "Letter of Warning" reviewing the aforementioned events of February 5, 7, 8, 9, 15, and 16, Wyrick advised Thompson he would be "automatically discharged" should such conduct recur. Wyrick testified that, in view of his evaluation conversation with Thompson on February 5, he (Wyrick) believed Thompson was delib- erately late on February 7, 8, and 9 "to see what my [Wyr- 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ick's] reaction would be." Although there is some testimony about purported union conversations between the drivers early in February and even in January, no employee signed a union card before February 24, and Thompson testified it was "possible that he told a management representative , one Bishop , that he (Thompson) "started the Union" because of his February 20 warning letter . Without finding what union conversa- tions did or did not occur at such earlier times ,' I am con- vinced, as Wyrick credibly testified, that Wyrick was not aware of any union activities by Thompson or anyone else until February 26, a date following the warning letter to Thompson. It is noted in this connection that the com- plaint does not allege either that Wyrick raised the tardi- ness matter in his February 4 appraisal of Thompson for union reasons or that Wyrick was similarly motivated in issuing the February 20 warning letter. On June 17, four of Respondent's drivers (Thompson, Edison, Howard, and Long) were delivering anhydrous ammonia to a customer, Dow-Badische, in Freeport, Tex- as. Only one driver at a time could be loaded at Respondent's site and then unloaded at the Dow-Badische location. The sequence of operations was such that any delay in the unloading process would cause a backup of other drivers at the unloading rack. Respondent's schedule provided for a 12-hour day for each driver, with each driver to make three deliveries. Thompson was the first driver in the sequence, with sched- uled pickups at Respondent 's location at 6 a.m., 10 a.m., and 2 p.m., and the other three drivers taking on loads on the following hours. Each of the four drivers completed his three deliveries on June 17, and Thompson returned to Texas City in 5 minutes under the stated 12-hour period. This 12-hour period is apparently a maximum time for compensation purposes for the drivers are encouraged to complete their runs as quickly as possible and thus are paid on a time and mileage basis. The ammonia is unloaded in Freeport by Channel Serv- ices, a subcontractor of Dow-Badische, in a somewhat time consuming procedure. Richard Lundy is Channel Services' manager , and Larry Pearson is his racker with responsibil- ity for the unloading operation . Pearson is a young man and at the time in question (June 17) he had been working about 2 weeks for Lundy. Thompson's longtime practice, known to Wyrick, was to stop for a meal at a restaurant on one of his daily trips. He made such a meal stop on June 17, thereby delaying by the extent of his stop his arrival at the unloading rack. This, in turn, impeded the efforts of the other drivers in accelerat- ing their sequential unloading operation. Observing the consequent backup at the unloading rack, Lundy inquired of Pearson whether Pearson "had some problems with his equipment or himself or whatever." Pearson replied in ef- fect that one of the drivers was late getting in and "threw r Thurman Edison, Christopher Long, and Billy Howard were members of the Union's aforementioned organizing committee . Edison testified that he did not know whether Thompson had started union activities before February 20; Howard testified that Thompson first spoke to him about the Union when Thompson gave him a union card on February 24; and Long testified that he was unaware of any union activity before February 20. the schedule off." Pearson was obviously concerned about his own job security and he told Long (one of the four drivers and a member of the union organizing committee) that Lundy had criticized him for being behind schedule. About this time, Long telephoned Wyrick from the unload- ing rack and complained that Thompson "is doing it again" and causing a delay and that Pearson had been "chewed out." (Long had complained about similar delays by Thompson during his evaluation interview with Wyrick early in February, and Wyrick told Long at that time that Long should let him know of any recurrences by Thomp- son at Dow-Badische and Wyrick also indicated that he would give Thompson a "little time off without pay" if it happens again.) Long wrote out a complaint on June 17- "Thompson will not try to cooperate with fellow drivers. He is always running late. Never uses the extra time that was gained on loading and unloading. He always has to stop and eat and make everyone else late"-for submission to Wyrick and he also told Howard (another driver) that Wyrick had said to put such complaints in writing. Howard did so, stating that Thompson was "dragging his feet," and Howard testified that he had made previous complaints about Thompson being "off-schedule." Pearson also sent a note to Wyrick that same day to the effect that Lundy had complained about his (Pearson's) performance and Pear- son told Wyrick that Thompson had caused the unloading schedule to fall behind .2 As a result of the backup on June 17, Long was late in returning to Texas City after complet- ing his final delivery of the day. Thompson was suspended for a 3-week period beginning June 26. Respondent had never before suspended a driver. Other employees have been late at the beginning of the shift and even missed a load, but so far as the record shows no other driver has ever refused to report in at all, as Thompson did on February 16 and 17, and no other driver has received a warning letter of the sort received by Thompson on February 20. Concluding Findings Viewing the events of June 17 in light of the matters involved in both the February 4 appraisal of Thompson and Thompson 's February 20 warning letter , I am satisfied and find upon consideration of the entire record that the record does not preponderantly establish that Respondent suspended Thompson because of his prominent organizing role. It is particularly significant in my opinion that afore- mentioned incidents of February 4 and 20 occurred before any union cards were signed and , even more importantly, before Wyrick knew of any union activities . Considering the circumstances herein , I do not believe further explica- tion is necessary. In reaching the conclusion that Thompson was not un- lawfully suspended, I have also considered testimony re- specting allegations that on February 28 Wyrick interro- gated an employee concerning the Union and threatened to shut down the trucks and put them in the shop for safety repairs if the Union came in the plant . The employee pur- r Pearson testified that Long told him that Wyrick had said he (Wyrick) would get Thompson and Howard off the payroll if there was any way to do so. Wyrick credibly denied saying this to Long. AMOCO OIL COMPANY portedly involved in these allegations was Thompson. Thompson testified that , while in Wyrick's office sometime during the organizational campaign , Wyrick inquired whether Thompson had heard anything of a union and that Wyrick then said that he (Wyrick) could legally shut down the vehicles for mechanical reasons if the Union "came in ." Thompson said the incident occurred about the time he signed a union card (February 24) but he could not really fix the time; and later he said he "believed" it was 2 weeks before February 24. Whatever conversation oc- curred , there is no credible testimony that it took place before February 26. Wyrick did indicate , according to his credible testimony , that equipment repairs might be neces- sary if the terminal's ultimate union contract included call- out pay before the maintenance efforts were completed. Wyrick referred in this connection to a situation under the Union 's contract in Baton Rouge . Wyrick was not asked about the purported interrogation . However , in the circum- 949 stances of this case, the Union having, since been certified and Respondent now recognizing and negotiating with the Union, I do not believe that either a finding or an -order as to unlawful interrogation is appropriate , and I also do not consider as preponderantly established the allegation of an unlawful threat. I shall accordingly recommend that the complaint be dismissed. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in the violations of Sec- tion 8(a)(1) and (3) alleged in the complaint. [Recommended Order for dismissal omitted from publi- cation.]