Armour Oil Co.

National Labor Relations Board - Board Decisions

Jan 8, 1981

253 N.L.R.B. 1104 (N.L.R.B. 1981)

ARMOUR OIL COMPANY
Armour Oil Company and Teamsters Local 315, In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 32-CA-1921
January 8, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 18, 1980, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and a supporting
brief and Respondent filed an answering brief to
the General Counsel's exceptions.
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, find-
ings,' and conclusions of the Administrative Law
Judge2 as modified herein and to adopt his recom-
mended Order.
We adopt the Administrative Law Judge's con-
clusion that Respondent's conduct in transferring
trucks from the Martinez, California, terminal to
facilities in southern California during the period
from June 28 through June 30, 1979,3 was not un-
lawful. However, as discussed below, we reach this
conclusion for somewhat different reasons from
those stated by the Administrative Law Judge in
his Decision and, thus, we do not pass on the
grounds upon which he relied.
On June 27 Respondent, having reached the con-
clusion that it was probable that the Union would
strike on July I when the then current collective-
bargaining agreement expired, decided to take pre-
cautionary measures. 4 Most of its customers' orders
having been filled, on June 29 and 30 Respondent
I 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 The Administrative Law Judge in his Decision inadvertently stated
that Respondent does business in the northwestern rather than the west-
ern part of the United States. This error, however, does not affect the
validity of the Administrative Law Judge's other findings and conclu-
stions.
I All dates hereinafter are 1979 unless otherwise indicated.
4 During the June 27 meeting the Union made several references to
going out on strike if Respondent failed to propose satisfactory changes
to the collective-bargaining agreement and that evening posted a strike
vote notice in the drivers' room at the Martinez terminal-the vote to
take place on June 30.
253 NLRB No. 148
transferred 10 of the 12 trucks normally housed at
the Martinez facility to its terminal in southern
California. Here the trucks could be protected from
the vandalism which Respondent feared might
occur in the course of a strike; and, in addition, Re-
spondent could use these trucks to service the cus-
tomers of several of its competing common carriers
who were shut down by strikers in the area. The
remaining two trucks were kept at Martinez to
meet customers' needs during the remaining days
of the month and because two indoor bays were
available where the trucks could be adequately se-
cured.
The General Counsel alleges that Respondent's
transfer of trucks from the Martinez to the Bakers-
field facility was a lockout of Respondent's em-
ployees i violation of the "no strike, no lockout"
provision of its bargaining agreement;5 the General
Counsel further alleges that this conduct violated
Section 8(a)(5) and (1) and Section 8(d) of the Act.
The Administrative Law Judge recommended that
this allegation be dismissed based on his conclusion
that Respondent's prestrike preparations, if found
to be a lockout, may have been in breach of the ap-
plicable provision of its contract with the Union
but would not be violative of the Act. We agree
with the Administrative Law Judge that this alle-
gation should be dismissed, but reach this conclu-
sion on grounds that Respondent's conduct during
the June 28 through June 30 period did not consti-
tute a lockout.
The General Counsel contends, in support of the
lockout allegation, that Respondent's decision to
transfer the trucks was part of its negotiating strat-
egy and that the lack of equipment caused the Mar-
tinez drivers to lose work, noting particularly that
12 orders were not filled prior to the strike. How-
ever, Respondent received a monthly allocation
from its various suppliers of gasoline and by June
30 virtually all of Respondent's June allocation had
been exhausted; further, to have 12 orders remain
undelivered at the end of a month was not an un-
usual occurrence. The record establishes that Re-
spondent had a sound economic reason for transfer-
ring the trucks and also feared a repeat of vandal-
ism which had occurred earlier during a strike at
one of its other facilities. Finally, the record does
not establish that any employee lost work because
of the transfer of trucks; on the contrary, on June
30 Respondent sent out at least two drivers with
shipments (it offered one of the assignments to a
third but he refused it) and the record indicates
that Respondent had difficulty locating drivers to
b The General Counsel concedes that a lockout upon the expiration of
the contract would not have been unlawful
1104
ARMOUR OIL COMPANY
make those shipments because almost all the truck-
ers attended the union meeting that day. For the
foregoing reasons, we find that Respondent did not
lock out its employees. Rather, we find that on
June 27 Respondent had good reason to believe
that the Union intended to strike when the contract
expired on July 1 and began to wind down its Mar-
tinez operation in anticipation of such strike, and as
part of its preparations therefor moved out those
trucks which it would not need to complete its
June orders.6 Accordingly, we shall dismiss the al-
legations of the complaint alleging that Respondent
locked out its employees in violation of the Act.7
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Armour Oil
Company, Martinez, California, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order, except that
the attached notice is substituted for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not found herein.
6 Respondent retained two trucks to enable it to fulfill the few remain-
ing time orders and also to have trucks available in the event the strike
did not occur. Further, Respondent made arrangements so that the trucks
which were removed could be brought back if needed.
In agreement with the Administrative Law Judge we find that the
comments made on June 30 by Terminal Manager Berg to three employ-
ees that there would be no work without a contract are "equivocal and
by themselves are insufficient to support a finding that the alleged lock-
out was used by Respondent to support its bargaining position for a new
contract particularly since the day when these statements were expressed
Respondent had every reason to believe that the Union by the end of that
day would strike when the contract terminated."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain in good
faith with Teamsters Local 315, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, about the
decision to transfer bargaining unit work or to
replace trucks assigned to unit employees with
different trucks and the effects of these deci-
sions upon the unit employees. The appropri-
ate unit referred to herein is:
All drivers employed by us at our Martinez,
California, terminal; excluding office clerical
employees, guards, and supervisors as de-
fined in the National Labor Relations Act.
WE WILL NOT change the terms and condi-
tions of employment of the unit employees
without affording the above-named Union an
opportunity to bargain about these changes.
WE WILL NOT promise employees improved
earnings and working conditions if they re-
place their union business agent.
WE WILL NOT threaten to discharge employ-
ees for engaging in protected concerted activi-
ty within the meaning of Section 7 of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of your rights guaranteed in Section 7
of the National Labor Relations Act.
WE WILL, upon request of the above-named
Union, bargain collectively in good faith with
it about the decision to transfer San Jose, Cali-
fornia, area work from our Martinez, Califor-
nia, terminal and about the effects upon the
Martinez terminal drivers of this transfer, and,
if an understanding is reached thereon, reduce
to writing and sign any agreement reached as
a result of such bargaining.
WE WILL, upon request of the above-named
Union, bargain collectively in good faith with
it about the decision to replace the trucks do-
miciled in June 1979 at the Martinez, Califor-
nia, terminal with different trucks and about
the effects of this decision upon the drivers
who drove said trucks, and, if an understand-
ing is reached thereon, reduce to writing and
sign any agreement reached as a result of such
bargaining.
WE WILL restore the San Jose, California,
area work to the drivers employed in the Mar-
tinez, California, terminal and make whole
these drivers for any loss of earnings they may
have suffered or additional commuting ex-
penses they may have incurred, plus interest.
WE WILL return to the Martinez, California,
terminal a sufficient number of trucks with
cummins engines so as to recreate the same nu-
merical ratio between the trucks with cummins
and non-cummins engines as existed there in
June 1979.
ARMOUR OIL COMPANY
1105
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge:
This proceeding, in which a hearing was held in 1980, on
January 28 and 29 and February 13 and 14, is based on
an unfair labor practice charge filed against Armour Oil
Company, herein called Respondent, by Teamsters Local
315, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called
the Union. The initial charge was filed July 9, 1979, and
was amended September 4 and 18, 1979. On August 31,
1979, a complaint was issued against Respondent by the
Regional Director for Region 32, of the National Labor
Relations Board, on behalf of the General Counsel. The
complaint was amended on November 29, 1979, and
again at the outset of the hearing. The amended com-
plaint alleges that Respondent violated Section 8(a)(l),
(3), and (5) of the National Labor Relations Act, herein
called the Act. Respondent filed an answer and an
amended answer denying the commission of the alleged
unfair labor practices.
The essential questions presented for decision, as posed
by the pleadings, are as follows:' (1) Whether Respond-
ent was responsible for the conduct of Robert Rapoza
and, if so, whether in violation of the Act Rapoza told
employees that the work they performed prior to engag-
ing in a strike would not be returned until their union
business agent was replaced and an employee fired for
engaging in protected concerted activity; (2) whether
Terminal Manager Dennis Berg, in violation of the Act,
warned an employee that Respondent would terminate
its employees if they went out on strike and asked an em-
ployee to engage in the surveillance of a union meeting
attended by employees; (3) whether during the terms of
its contract with the Union, Respondent locked out em-
ployees represented by the Union and, if so, whether this
conduct violated Section 8(a)(1) and (5) of the Act and
was a cause of the employees' strike; (4) whether in vio-
lation of Section 8(a)(1) and (3) of the Act, Respondent
took work away from the Martinez terminal drivers and
provided them with trucks inferior to the ones previous-
ly furnished in order to punish them for engaging in a
strike; (5) whether in violation of Section 8(a)(5) and (1)
of the Act, Respondent transferred bargaining unit work
and replaced its drivers' trucks without affording the
Union an opportunity to bargain about these matters.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
post-hearing briefs submitted by the General Counsel and
Respondent, I make the following:
I In its answer Respondent admits that the Union is a labor organiza-
tion within the meaning of Sec. 2(5) of the Act, and that Respondent
meets the National Labor Relations Board's applicable discretionary juris-
dictional standard and is an employer engaged in commerce within the
meaning of Sec. 2(6) and (7) of the Act
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting and a Chronology of Events
Respondent, a California corporation with headquar-
ters in San Diego, California, is a wholesale distributor
of gasoline products which does business in the north-
western part of the United States. The business in man-
aged jointly by Bryam Armour, the Company's presi-
dent, and his son, Henry Armour, who is its vice presi-
dent. The facility involved in this case is the Company's
Martinez, California, terminal which was managed by
Dennis Berg from August 8, 1978, until September 15,
1979. Thereafter Chuck Hutchings replaced Berg as ter-
minal manager, but in the interim Robert Rapoza acted
as terminal manager and, after Hutchings' arrival, re-
mained at the terminal for several weeks to train Hutch-
ings to perform the duties of terminal manager.
Respondent distributes its gasoline products to its cus-
tomers in tanker trucks driven by Respondent's drivers
who are assigned to terminals located in San Diego, Ba-
kersfield, Paramount, Sacramento, and Martinez, Califor-
nia; Portland, Oregon; Seattle, and Spokane, Washing-
ton; Las Vegas, Nevada; and Phoenix, Arizona. In addi-
tion, Respondent domiciles one truck in San Jose, Cali-
fornia, which is driven by two drivers permanently as-
signed there. All of these terminals existed prior to 1979,
except for the one in Sacramento which, as described
infra, did not open for business until September 1979.
Respondent prior to September 1979 did not domicile a
truck in San Jose, California.
The drivers employed at Respondent's terminals are
represented by various local unions affiliated with the
Teamsters International Union on a terminal-by-terminal
basis and except for the one in Sacramento, California,
all are currently covered by separate collective-bargain-
ing agreements. As described infra the Local Union
which represents the Sacramento terminal drivers and
Respondent have not as yet succeeded in reaching an
agreement. The drivers assigned to drive the San Jose
truck are covered by the agreement covering the Mar-
tinez terminal. The drivers employed at the Martinez ter-
minal have been represented by the Union since 1973
and are currently covered by a contract effective from
July 1, 1979, until July 1, 1982. The previous contract
which covered these employees terminated by its terms
July 1, 1979, at which time the employees ceased work
and engaged in a strike which ended on August 13, 1979,
when they ratified the terms of a new contract. On
August 15, 1979, this agreement which had been reduced
to writing was formally executed by the parties.
In September 1979, Respondent opened a facility in
Sacramento, California, and assigned a part of the deliv-
ery work previously performed by the Martinez terminal
drivers to the drivers it employed in Sacramento. Also
during the same period of time Respondent replaced all
of the trucks which had been domiciled in the Martinez
terminal prior to the strike with different trucks and do-
miciled one of the Martinez trucks in San Jose, Califor-
nia, and permanently transferred two of the Martinez
DECISION
1106
ARMOUR OIL COMPANY
drivers to San Jose to drive this truck. Previously the
San Jose area was serviced from the Martinez terminal.
B. Terminal Manager Berg Allegedly Informed an
Employee That Respondent Would Terminate
Employees If They Engaged in a Strike
In support of this allegation the General Counsel
called employee David Honegger who testified that on
June 30, 1979,2 after the union strike vote meeting held
that morning, Berg informed Honegger: "I just talked to
Mr. Armour . . . and he said if you go on strike that no
one will ever work in this yard again."' Berg testified3
that on June 30 when Honegger came to the terminal
from the union meeting that Berg merely asked what had
happened at the meeting and whether the employees in-
tended to work or strike. Berg impressed me as a more
credible witness than Honegger. Accordingly, I shall
recommend that this portion of the complaint be dis-
missed.
C. Terminal Manager Berg Allegedly Asked An
Employee To Engage in the Surveillance of Other
Employees' Union Activities
In support of this allegation the General Counsel
called employee Robert Love who testified that approxi-
mately 2 to 3 weeks prior to the July I strike that he re-
fused Berg's request to tape record a union meeting at
which the Union's contract proposals were to be dis-
cussed. Love also testified that during the period from
June 27-29, on two separate occasions, once at the termi-
nal and once over the telephone, he refused other similar
requests by Berg to tape record the scheduled June 30
union meeting at which the employees were to take a
strike vote. Finally, Love testified that on June 30, im-
mediately prior to going to this meeting, that Berg at the
terminal repeated his previous request, which Love again
refused. Berg specifically denied engaging in the afore-
said conduct. His version of his conversations with Love
about the union meetings was that he asked Love about
the Union's contract demands and whether Love thought
the employees would let him, Berg, attend the union
meetings. Berg impressed me as a more credible witness
than Love, and, accordingly, I shall recommend that this
part of the complaint be dismissed.
D. The Alleged Unlawful Conduct Attributed to
Robert Rapoza
1. Rapoza's status
Robert Rapoza has been employed by Respondent for
approximately 13 years, in various positions. He is cur-
rently employed as the terminal manager of the Compa-
ny's San Diego, California, terminal. Immediately prior
to this assignment, he was employed from September 4
until November at the Martinez, California, terminal.
Before this he had been assigned on numerous occasions
to the Company's terminals to train new terminal manag-
ers or to substitute for terminal managers who were
away on vacation. In addition, Rapoza has also served as
2 All dates hereafter refer to 1979, unless specified otherwise
3 Berg was not employed by Respondent at the time of the hearing
Respondent's "transportation manager" and in this ca-
pacity, in February 1973, signed a collective-bargaining
agreement with the Union, on behalf of Respondent,
covering the drivers employed at the Martinez, Califor-
nia, terminal.
Early in September Bryam Armour told Rapoza that
the Armours were not satisfied with the way in which
Terminal Manager Berg was managing the Martinez ter-
minal and asked Rapoza to visit the terminal and investi-
gate the situation. On September 4, Rapoza began work
at the terminal. He observed that Berg was not managing
the terminal satisfactorily and so advised the Armours.
On September 15 the Armours discharged Berg.
When they discharged Berg, the Armours assigned
Rapoza to manage the Martinez terminal until they hired
a new terminal manager and instructed Rapoza that he
would stay at the Martinez terminal for the purpose of
training the new manager. On or about October 1,
Chuck Hutchings, who had been employed as a dispatch-
er at Respondent's Bakersfield, California, terminal, was
employed to manage the Martinez terminal at which
time Rapoza commenced training him to perform the
duties of terminal manager. Rapoza remained at the Mar-
tinez terminal for approximately 6 weeks training Hutch-
ings.
During the 2 weeks between Berg's termination and
Hutchings' employment, Rapoza admittedly acted as the
terminal manager, and was responsible for the operation
of the terminal. He directed the work of the drivers and
the mechanics employed at this facility. There was no
one else representing management there during this
period inasmuch as the Armours were in Respondent's
headquarters in San Diego, California, several hundred
miles away. Although he was in constant communication
with the Armours, by telephone, Rapoza, insofar as the
employees were concerned, outwardly performed all of
the functions of the terminal manager. In fact, driver
Crews credibly testified that late in September Rapoza
indicated to Crews that he, Rapoza, was the terminal
manager. 4 In short, the record establishes that during the
period from September 15 to October 1, the hiatus be-
tween Berg's termination and Hutchings' employment,
Respondent placed Rapoza in a position where the em-
ployees employed at the Martinez terminal could reason-
ably believe that he spoke and acted on behalf of man-
agement.
Following the employment of Hutchings on October
1, the record shows that Rapoza remained in a position
where the employees could reasonably have believed
that he spoke on behalf of management. Thus on Octo-
ber 4 Rapoza, in the presence of employees, held a griev-
ance meeting with Union Business Agent Alfonso, at
which time Rapoza, on behalf of Respondent, settled cer-
tain employee grievances and refused to settle others. Al-
though he was present at this meeting, Hutchings did not
participate. In fact, at the start of the meeting Rapoza, in
4 Ra;,-za did not specifically deny making this remark to Crews. He
did, however, testify that when the drivers asked him what his job was
with the Company he answered "truck driver " Insofar as this constitutes
a general denial of Crews' specific testimony. I have rejected it because
Crews impressed me as the more credible witness
1107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
response to Alfonso's inquiry, identified himself as the
terminal manager and stated that Hutchings was a dis-
patcher. 5 Also during this period of time the employees
observed Rapoza training Hutchings. And in the pres-
ence of employees, Rapoza countermanded dispatch
orders issued by Hutchings. As driver Greene testified,
"Rapoza seemed to be operating as the senior person in
the office." Thus, it was not surprising that employees
sought out Rapoza, rather than Hutchings, for instruc-
tions.
Based on the foregoing, I find that by virtue of the po-
sition in which Rapoza had been placed by Respondent
that, during all times material to this case the employees
could reasonably have believed that Rapoza spoke on
behalf of management. 6 It is for this reason that I con-
clude that Rapoza was Respondent's agent within the
meaning of Section 2(2) of the Act. See, Helena Labora-
tories Corporation, 225 NLRB 257 (1976), enfd. in perti-
nent part 557 F2d. 1183 (5th Cir. 1977); Broyhill Compa-
ny, 210 NLRB 288, 294, enfd. 514 F.2d 655 (8th Cir.
1975).
2. Rapoza allegedly informed employees that unless
the Union replaced Business Agent Fleming that the
work which had been taken away from the
employees would not be returned nor would their
trucks be returned
a. The evidence
The business agent assigned by the Union to represent
the Martinez terminal drivers was Richard Fleming, who
had served in this capacity for approximately 6 years. It
was Fleming who was the Union's negotiator in the un-
successful contract negotiations which culminated in the
July I strike. It is undisputed that at the end of the strike
fewer trucks were domiciled by Respondent at the Mar-
tinez terminal, and employees were not assigned the
same trucks as before the strike but were assigned differ-
ent ones which the employees felt were inferior to the
prestrike trucks. In addition, it is undisputed that a sub-
stantial amount of work was transferred from the Mar-
tinez terminal drivers and reassigned to the drivers em-
ployed in Respondent's newly created Sacramento, Cali-
fornia, terminal.
Early in September driver David Cline, who was also
the Union's shop steward, spoke to Rapoza in the driv-
ers' room in the presence of driver Walter Clement.
Cline asked when the drivers were going to be assigned
more work and, in particular, when the drivers who
were at the bottom of the seniority list would get work.
Rapoza stated that things would remain the same until
the drivers changed their business agent, explaining that
Armour could not get along with Fleming. Cline indicat-
ed that if that was what it would take to get the drivers
who were at the bottom of the seniority roster working,
5 Based on Alfonso's credible testimony, Alfonso impressed ne as a
more credible witness than Rapoza and, accordingly, I have rejected Ra-
poza's general denial that he never told Alfonso he was the terminal
manager.
6 In view of this determination it is not necessary to determine wheth-
er Rapoza was a supervisor within the meaning of the Act.
that he would see what he could do. 7 Shortly thereafter,
in the presence of driver John Greene, Sr., Cline ques-
tioned Rapoza about the equipment being used by the
drivers. In reply Rapoza stated that the drivers would
not get any of the newer equipment formerly assigned to
them until Fleming was removed as business agent and
drivers Crews, Honegger, and Loey were reprimanded.8
A few days later Greene asked Rapoza when the Com-
pany intended to assign the drivers the trucks they had
driven prior to the strike and also asked when the termi-
nal would get back to operating at its prestrike work-
load. Rapoza stated that Armour had told him that the
status quo would remain until Fleming was replaced
with another business agent whom Armour approved. 9
On approximately September 17, drivers Cline and
Clement met at the Union's office with Business Agent
Fleming and the Union's principal official, Secretary-
Treasurer Loren Thompson. Cline told them that
Rapoza had stated he would return the work which had
been taken away from the drivers and also return their
trucks if Fleming was removed as business agent. Flem-
ing stated that if it would help the drivers he would step
down as the employees' business agent and have another
business agent, Manuel Alfonso, take his place. Thomp-
son agreed to this substitution, and as of that date Alfon-
so was assigned to represent the Martinez terminal driv-
ers. The employees were notified of this decision by a
notice signed by Cline, as shop steward, which was
posted in the terminal on September 17 which reads as
follows: "Effective immediately by order of Lorin
Thompson . . . Al Alfonso will represent Martinez crew
as business agent." Clement, after this notice was posted,
remarked to Rapoza, "We did our thing now its up to
you to do yours." Rapoza replied, "All right, but it will
take a little time."
b. Conclusions
As I have found supra, Rapoza promised the drivers
Respondent would increase their workload to what it
had been prior to the strike and would return the newer
more comfortable trucks which the drivers had driven
prior to the strike provided the Union designated some-
one other than Fleming to act as the employees' business
agent. In other words, Rapoza promised the employees
improved working conditions and earnings if they desig-
nated someone other than Fleming as their collective-
' The description of this conversation is based on the testimony of
Clement which was substantially corroborated by Cline's.
8 The description of this conversation is based on Cline's testimony
which was substantially corroborated by Greene's. I reject Rapoza's testi-
mony that when Cline questioned him about the employees' workload
and the number of trucks domiciled at the Martinez terminal that Rapoza
merely stated that the employees would get more trucks when the busi-
ness warranted it. Nor do I credit his testimony that in reply to Cline's
inquiry as to when the drivers would once again perform the Sacramento
area work that Rapoza stated Respondent was not going to make deliv-
eries from the Martinez terminal into the Sacramento area because Sacra-
mento was under the jurisdiction of a different Joint Teamsters Council
and, in view of this. Rapoza felt Respondent would have problems with
Fleming. Cline, Clenient, and Greene impressed me as more credible wit-
nesses than Rapoza and, accordingly, I have credited their versions of
Rapoza's conversations with Cline
a This conversation is based upon the credible testimony of Greene.
1108
ARMOUR OIL COMPANY
bargaining representative. Since the employees have a
statutory right to select as their collective-bargaining
agent whomever they wish,°0 such a promise of benefits
which was calculated to coerce the employees in their
choice of bargaining agent violated Section 8(a)(l) of the
Act. In addition, such conduct violated Section 8(a)(5) of
the Act because it has the forseeable effect of weakening
the authority of the Union as the bargaining representa-
tive of the employees and its ability to function in that
role and constitutes direct dealing with the employees in
derogation of the Union's status as the employees' exclu-
sive bargaining representative.
3. Rapoza allegedly informed employees that their
trucks will not be returned until an employee was
disciplined for engaging in protected concerted
activity
a. The evidence
During the strike a number of the striking employees
picketed a company truck which was delivering gasoline
to a gas station in Danville, California. One of the driv-
ers who picketed the truck was Jimmy Crews whose
conversation with the fire marshall resulted in the gas
station being shut down while the truck was towed
away. The reason that the truck was towed away was
that four of its tires had been slashed. Terminal Manager
Berg visited the site of the picketing and took pictures of
the truck as it was being picketed and was informed by
one of the gas station attendants that driver Loey, who
was one of the drivers picketing the truck, was responsi-
ble for the slashed tires.
It is undisputed that at the end of the strike and con-
tinuing thereafter the Martinez terminal drivers were not
assigned the same trucks which they had driven immedi-
ately prior to the strike but were assigned trucks which
they considered inferior to the prestrike trucks. Also,
fewer trucks were assigned to the Martinez terminal.
Several of the drivers questioned Rapoza about this state
of events. Early in September, apparently shortly after
Berg's termination as terminal manager, Cline, who was
shop steward, asked Rapoza when the trucks which the
drivers had driven prior to the strike would be returned.
Rapoza answered that none of the trucks would be re-
turned until he had either dismissed or "straightened
out" certain drivers, one of whom was Jimmy Crews.
Rapoza explained to Cline that he wanted to get rid of
these drivers because during the strike they had vandal-
ized one of the Company's trucks at a gas station in Dan-
ville, California. Later in September driver Greene asked
Rapoza when the drivers would get the better equipment
back. In reply Rapoza stated that so long as Crews was
an employee that there would be no change in the equip-
ment and that any additional equipment would be of the
older type. " Thereafter, early in October Rapoza ad-
'O See, generally, Indiana and Michigan Electric Company, 235 NLRB
1128 (1978), supplementing 229 NLRB 576 (1977), enfd. 599 F.2d 185
(7th Cir. 1979); Minnesota Mining d Manufacturing Company, 173 NLRB
275 (1968). enfd. 415 F.2d 174 (8th Cir. 1969).
1 1 The aforesaid descriptions of Rapoza's conversations with Cline and
Greene are based on the testimony of Cline and Greene who impressed
me as trustworthy witnesses Rapoza did not specifically deny the words
attributed to him during these conversations I realize that Cline placed
vised Greene that he had a written statement from Berg
which contained damaging information pertaining to
Crews and that Rapoza thought he could make the state-
ment "stick." Rapoza asked whether Greene knew that
Crews had been involved in the destruction of company
property at Danville. Greene answered that he had not
observed Crews destroy any company property. Rapoza
handed Greene the statement, which Greene read.
Rapoza then asked Greene whether the statement was
true. 2 Greene stated that it was not true and that he,
Greene, had not witnessed Crews destroy any company
property. I 3
On October 4, at a grievance meeting attended by
Union Business Agent Alfonso and Rapoza, who repre-
sented Respondent, Rapoza refused to drop one of the
warning letters which Respondent had issued to Crews
for allegedly not being available for work. When Alfon-
so asked why Rapoza was refusing to withdraw this
warning, Rapoza, in Crews' presence, showed Alfonso a
picture of Crews standing alongside of the company
truck whose tires had been slashed and explained that
"Armour wants to get Jim Crews because he thinks he is
the one who flattened all the tires on the truck and that
is why I cannot drop the warning on him."' 4
b. Conclusions
Sections 7 and 13 of the National Labor Relations Act
grants employees the right to strike and picket for the
purpose of collective bargaining or other mutual aid or
protection. If an employer discharges or threatens to dis-
charge an employee for engaging in a strike or for pick-
eting in connection with a strike the effect is to discour-
age employees from exercising their right to strike guar-
anteed by Section 7 and 13 of the Act. Accordingly,
unless an employer who discharges or threatens to dis-
charge a striker, can show that his conduct was due to
legitimate and substantial business justification, he is
guilty of an unfair labor practice. See L.R.B. v.
Fleetwood Trailer Co., Inc., 389 U.S. 375, 378 (1967).
Also, although, generally, it is the employer's burden to
show legitimate and substantial business reasons for
threatening to discharge a striker for having engaged in a
strike (N.L.R.B. v. Fleetwood Trailer Co., Inc., supra, 389
U.S. at 3181), where the employer has shown a good-
faith belief that a striker has engaged in substantial mis-
his conversation with Rapoza as having taken place late in August, how-
ever, I believe he was mistaken as to the date because Rapoza did not
arrive at the Martinez terminal until September, and did not become
acting terminal manager until September 15 when Berg was discharged
Accordingly, I have concluded that this conversation did not take place
until the early part of September after Rapoza had taken over the man-
agement of the terminal. I reject Rapoza's testimony that he had no con-
versations with any of the drivers about the equipment which would be
used at Martinez or that he told any (if the drivers that the equipment
would not be returned while Crews was employed Cline and Greene im-
pressed me as more credible witnesses than Rapoza
12 The contents of the statement are not in the record
i3 The description of this conversation is based on Greene's testimony
He impressed me as a more credible witness than Rapoza It is for this
reason that I reject Rapoza's testimony that Greene, on reading the state-
ment shown to him by Rapoza, admitted that the contents of the state-
ment were "pretty accurate" and told Rapoza that Crews and Loey were
responsible for slashing the truck's tires
' Based on the undenied and credible testimony of Alfonso
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct, the burden of showing that the misconduct in
fact did not occur shifts to the General Counsel.
N.L.R.B. v. Plastic Applicators, Inc., 369 F.2d 495, 498
(6th Cir. 1966); International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America,
UAW [Udylite Corp.] v. N.L.R.B., 455 F.2d 1357, 1367
(D.C. Cir. 1971). Finally, the fact that an employer in
good faith believed that a striker engaged in misconduct
is no defense to an unfair labor practice finding if the
misconduct in fact did not occur. N.L.R.B. v. Burnup &
Sims, Inc., 379 U.S. 21, 23-24 (1964).
In the instant case, as I have found supra, Rapoza ad-
vised employees Cline and Greene that the Martinez ter-
minal drivers would continue to suffer with fewer and
inferior trucks than were assigned to the terminal prior
to the strike unless Respondent was allowed to terminate
or discipline Crews for misconducting himself while
picketing during the strike. In short, Respondent,
through Rapoza, threatened Crews with discharge or
discipline for supposedly engaging in picket line miscon-
duct during the strike and sought to accomplish this
object free from union interference by indicating that the
drivers' working conditions would improve if they acqui-
esced in Crews' discharge. There is no evidence howev-
er that Respondent had a good-faith belief that Crews
was guilty of the strike-related misconduct attributed to
him during the hearing,' 5 or in fact committed the mis-
conduct. Quite the contrary, Crews credibly testified that
he was not responsible for slashing the tires of the Com-
pany's truck. In view of these circumstances and guided
by the applicable legal principles set forth above, I find
that Respondent violated Section 8(aX1) of the Act
when Rapoza advised drivers Cline and Greene that the
Martinez terminal drivers would continue to suffer with
fewer and undesirable trucks unless Respondent was al-
lowed to discharge Crews for engaging in a strike
against Respondent. In short Rapoza threatened em-
ployee Crews with discharge for engaging in protected
concerted activity.
E. Respondent Allegedly Unlawfully Locked Out Its
Employees
I. The evidence
The collective-bargaining agreement between Re-
spondent and the Union covering the drivers employed
at the Martinez terminal was scheduled to terminate July
I at 12:01 a.m. The agreement which was effective from
June 30, 1976, until July 1, contained a "No Strike; No
Lockout" provision which read: "During the life of this
agreement the Union agrees it will not call or engage in
any strike and the Employer agrees that there will be no
lockout." In addition, the agreement contains a grievance
I" There is no evidence that Terminal Manager Berg who investigated
the Danville incident has reason to believe that anyone other than driver
Loey was responsible for the damaged tires. And as indicated supra, I
have rejected Rapoza's testimony that Greene told him Crews was re-
sponsible for the damage of the tires.
a I have not considered whether this conduct also violated Sec.
8(aX5) of the Act, as contended by the General Counsel, because the
complaint did not allege such a violation, and I have serious doubts of
whether it was fully and fairly litigated. Moreover, such a finding would
not add to the remedy in this case.
procedure which covers all disputes and grievances
without limitation and ends in impartial binding arbitra-
tion.
On approximately April 16, the Union, by letter, noti-
fied Respondent that it desired to reopen the collective-
bargaining agreement. Respondent, on approximately
May 10 wrote the Union that it also desired to reopen
the agreement for negotiations and that it was available
for negotiations. Respondent's labor relations consultant,
Clarence Borowski, arranged with the Union's business
agent, Richard Fleming, to start contract negotiations on
June 27 and, if necessary, to negotiate on consecutive
days thereafter until a contract was reached. 7
The June 27 negotiation session was held in a hotel
near the Martinez terminal. Respondent was represented
by its vice president, Henry Armour; labor relations con-
sultant Clarence Borowski; and Borowski's associate,
Dennis Dohner. The Union was represented by Business
Agent Richard Fleming. The session lasted from ap-
proximately 9 a.m. until 4:30 p.m. Borowski, who was
the Company's spokesperson, did not arrive until I 11 a.m.,
at which point Henry Armour left the negotiation room
and for the remainder of the negotiations stayed with his
father Byram Armour, Respondent's president, in an-
other hotel room. On several occasions during the bar-
gaining session Borowski caucused with the Armours.
The Union at the outset of the meeting presented
Henry Armour with a complete contract proposal. The
language of this proposal was largely identical to the lan-
guage contained in the existing contract. The negotiators
discussed the Union's proposal. At the start of the meet-
ing Armour stated that the parties had 3 days set aside,
June 27-29, to negotiate a contract and thought they
would be able to do so in that time. Fleming stated that
he did not foresee any problems in reaching a new agree-
ment but that, in case an agreement was not reached by
July 1, the expiration date of the current contract, the
Union would expect the terms of any new agreement to
be retroactive. Armour stated that Respondent would
not agree to make the terms or the new contract retroac-
tive. When Borowski arrived he submitted Respondent's
proposal on noneconomic matters. This proposal con-
tained numerous and significant changes in the language
of the existing contract. Fleming rejected some of the
proposals outright and others were held for further
review. Thereafter Borowski submitted the Company's
economic proposal, which was examined and rejected in
its entirety by Fleming. Borowski then submitted a new
economic proposal which Fleming stated was totally un-
acceptable to the Union and warned that the employees
would strike. At the end of the bargaining session Flem-
ing indicated that he thought it would be a waste of his
time to give further consideration to Respondent's pro-
posal, which was then on the bargaining table, and asked
if it was the Company's final offer. Borowski replied that
he thought the offer was a fair one and stated that he felt
it was within the framework of the master freight agree-
" Based on Borowski's testimony, Fleming denied that there was an
agreement to meet on consecutive days if no agreement was reached
June 27. Borowski impressed me as the more credible witness on this
point.
1110
ARMOUR OIL COMPANY
ment negotiated by the Union. Fleming remarked,
"We've been on strike before, this is not anything new to
us." Previously, Fleming, in support of the Union's bar-
gaining position, on approximately four or five occasions,
expressly indicated that the Union would engage in a
strike. The meeting ended without arrangements being
made for another meeting.'8
On June 27, immediately after the negotiation meeting
Fleming went to the Martinez terminal and at approxi-
mately 5 p.m. posted a notice in the drivers' room of the
terminal, which notified the drivers that there would be
a special union meeting on June 30 at 9:30 a.m. for the
purpose of conducting a "strike vote." The notice was
signed by Fleming.
On June 30 at approximately 9:45 a.m., virtually all of
the drivers employed at the Martinez terminal attended
the special meeting scheduled for that date. They voted
on whether "to accept Employer's proposal" or "to
reject Employer's proposal and strike." An overwhelm-
ing majority voted to reject the Employer's proposal and
strike. During the meeting Fleming read Respondent's
last proposal and advised the drivers that Respondent
had refused to make the terms of a new contract retroac-
tive, but that he thought he could get retroactivity for
them. Fleming also stated that a vote in favor of a strike
did not mean an immediate strike but would give Flem-
ing the authority to call a strike. He told the drivers that
he thought the contract could be resolved if they re-
mained at work, and instructed them to return to work
and that he would notify them whether they should
strike at the termination of the contract. Some of the
drivers indicated that there were no trucks for them to
drive in the terminal yard. Fleming indicated he would
check into the matter but once again told the drivers that
they should remain at work because he explained that he
thought he could get the Company to agree to accept
the concept of retroactivity.
On June 30, after the employees' strike vote, Fleming,
at about 11 a.m., phoned Borowski and advised him that
the drivers had voted to strike but that they would
remain at work when the current contract terminated if
the Respondent agreed to make the terms of a new con-
tract retroactive. Fleming also asked what it would take
to settle the contract. Borowski stated he would talk
with the Armours and phone Fleming that afternoon.
Borowski phoned Fleming that afternoon at approxi-
mately 3 p.m. and told him Respondent would not agree
to retroactivity and offered Respondent's original eco-
nomic proposal. When Fleming rejected this proposal
Borowski offered a 1-year proposal' 9 which he stated
was comparable to the Union's master freight agreement.
Borowski rejected this proposal and indicated that the
employees would commence striking Respondent that
night when the contract terminated.20
1s The description of what took place at the June 27 bargaining session
is based on the testimony of Henry Armour, Borowski, and Fleming
except in those instances where Fleming's testimony conflicts with Bor-
owski's. In these instances I have credited Borowski's version because he
impressed me as the more credible witness when testifying about this
meeting.
19 All previous proposals had been for contracts of 3 ears in duration
20 The description of the June 27 phone conversation between Flem-
ing and Borowski is based on the testimony of Borowski and Fleming
Later that day at 8 p.m. a special union meeting was
held at which time Fleming told the employees about his
conversations with Borowski and instructed them to
strike the Company that night when the current contract
terminated. Accordingly, on July I at 12:01 a.m., the em-
ployees struck the Martinez terminal and commenced
picketing. The strike and picketing continued until
August 13, at which time the parties agreed on the terms
of a new collective-bargaining agreement retroactive to
July 1.
During the June 27 bargaining session Borowski in his
several caucuses with the Armours, advised them that
Fleming was threatening the Company with a strike
when the contract terminated. Also at the end of the bar-
gaining session Borowski notified the Armours that it
was his impression from Fleming's statements that the
Union intended to strike July I. The Armours, who at
the conclusion of the June 27 bargaining session immedi-
ately returned to San Diego, California, where company
headquarters is located, were notified the next day about
the "strike vote" notice posted by Fleming in the termi-
nal. Previously when Respondent's employees had met
to vote on contract proposals such meetings in the
posted announcements had always been referred to as
meetings in which a "contract vote" would be taken. All
of these circumstances persuaded the Armours, Henry
Armour testified, that they could reasonably expect the
Union to strike the Martinez terminal July I when the
contract terminated.
On June 27 and 28, the Armours, based on their belief
that the Union would in all probability strike the Mar-
tinez terminal July 1, made the following decisions: (1)
That in the event of a strike Respondent would continue
to sell gasoline to its Martinez terminal customers but
that these customers would have to pick up the gasoline
themselves at the various outlets using common carriers,
and that Respondent would cease operating the Martinez
terminal for the duration of the strike; (2) of the approxi-
mately 10 trucks being used by the Martinez drivers, all
but two, would be transferred to the Company's south-
ern California terminals because if the expected strike oc-
curred the Armours were afraid that the trucks might be
vandalized. 2 ' But, more important, the trucks could be
used by Respondent in southern California because Re-
spondent had just reached agreements with the several
local Teamsters Unions, which represented its drivers
employed in that area, whereas several of Respondent's
competitors in southern California were still shut down
due to strikes. Thus the Armours felt they would be able
to use the trucks from the Martinez terminal in southern
California as common carriers to deliver gasoline for the
customers of the struck distributors. The reason the Ar-
mours decided to leave two trucks at the Martinez termi-
nal was that there were two indoor bays where trucks
would be secure, and since well over 95 percent of Re-
which is not inconsistent except oin the matter of whether the subject of
retroactivity was discussed. In this respect I have credited Fleming's tes-
timony inasmuch as he impressed me as a more credible witness on this
point
I2 During the strike associated with the recently concluded contract
negotiations involving Respondent's Paramount. California. terminal, Re-
spondent suffered certain property damage at that location
1111
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's June gas allocation for its customers had been
delivered they felt that two trucks would be sufficient to
satisfy their customers' demands for the few days remain-
ing in the month and that if, contrary to their expecta-
tions, a strike did not materialize on July 1, the two
trucks would be sufficient to satisfy its customers' needs
during the weekend until the other trucks were trans-
ferred back to Martinez.
Commencing on or about June 28 Terminal Manager
Berg, pursuant to the decision of the Armours described
above, began transferring the trucks from the Martinez
terminal to Respondent's Bakersfield, California, terminal
until by June 30 there were only two trucks left in the
Martinez terminal.22
It is undisputed that by June 28 well over 95 percent
of the gasoline allocated to the Martinez terminal for
June had been delivered to customers. 2 3 However, on
June 30 there was enough gasoline available for delivery
to keep more than two trucks operating.2 4 In fact, Ter-
minal Manager Berg testified that from June 28-30, there
were one dozen different orders placed for gasoline at
the Martinez terminal by customers which were not de-
livered in part because of the lack of trucks caused by
the transfer of the trucks from Martinez on June 28, 29,
and 30 to the Bakersfield terminal.
The record does not reveal the number of drivers who
were assigned work on June 28 and 29. But, on June 30
the record reveals that two drivers were dispatched in
the morning from the Martinez terminal to make deliv-
eries, using the two remaining trucks, and that two other
drivers were dispatched that evening to make deliveries
using that truck.
On the subject of conversations between representa-
tives of management and drivers concerning the drivers'
employment status, the record reveals that three such
conversations took place on June 30, as follows.
On Saturday, June 30, in the afternoon, driver
Schaefer asked Berg "What the availability of work
looked like for the next month." Berg answered that "He
was told by Mr. Armour there would be no work with-
out a contract." Schaefer later that day was contacted by
Berg and asked to deliver a load of gasoline that eve-
ning.
On Saturday, June 30, after the union meeting held
that morning, driver Harr asked Berg if he could work a
shift July 1. Berg answered, "There was not going to be
any work here for a long time [because] no contract, no
trucks, no work." Thereafter, on that same day, Berg
phoned Harr at home and asked him to deliver a load of
gasoline that night. When Harr indicated he was not sure
he could accept the assignment Berg assigned the job to
another driver, Hareen.
On Saturday, June 30, in the morning before the union
meeting, dispatcher Love happened to be in the terminal
22 The trucks remained in Bakersfield for I or 2 weeks, and then were
transferred to the Company's Paramount, California, terminal.
23 Based on the uncontradicted testimony of Terminal Manager Berg
who impressed me as a sincere witness and whose testimony in this re-
spect when viewed in the context of the whole record is not inherently
implausible
24 Based on the uncontradicted testimony of driver/dispatcher Honeg-
ger whose testimony in this respect when viewed in the context of the
whole record is not implausible
when Byram Armour phoned. Berg was busy talking on
another phone so Love was the one who took Armour's
phone call. During their conversation Love indicated
that he did not think the employees would strike if Re-
spondent agreed to pay them retroactive wages. In re-
sponse, Armour stated, "There is no retroactive pay; no
contract, no work."
2. Conclusions
The complaint alleges that "On or about June 29,
1979, Respondent failed to continue in full force and
effect all the terms and conditions of the [collective ba-
gaining agreement] by locking out its employees in dero-
gation of the 'no strike; no lockout' provision of the
Agreement prior to the expiration of the Agreement,"
and further alleges that by engaging in this conduct Re-
spondent violated Section 8(a)(5), (1), and (d) of the Act.
Initially, there is a question of whether Respondent's
conduct during the period of June 28-30, described in
detail supra, constitutes a lock out within the meaning of
the governing collective-bargaining agreement of Section
8(d) of the Act. I have not resolved this issue because I
am of the opinion that even if Respondent locked out its
employees this conduct did not, under the circumstances
of this case, constitute a violation of Respondent's statu-
tory bargaining obligation, as alleged in the complaint.
The cases cited by the General Counsel in support of
this allegation, Movers and Warehousemen's Association of
Washington, D.C., et al., 224 NLRB 356 (1976); Romo
Paper Products Corp., 208 NLRB 644 (1974); Loomis Cou-
rier Service, Inc., 235 NLRB 534 (1978), are inappropri-
ate. In Movers and Warehousemen's Association the Board
found that the employer violated Section 8(a)(1), (3), and
(5) of the Act by locking out its unit employees to exert
pressure on the employees in support of its bargaining
position and to force the union to accept the employer's
mail ballot ratification demand on its pending final con-
tract offer, a nonmandatory subject of bargaining. Romo
Paper Products and Loomis Courier did not involve an al-
leged bargaining violation, rather they involved a viola-
tion of Section 8(a)(3) of the Act. In Romo Paper Prod-
ucts, where the Board found that the employer violated
Section 8(a)(3), the record revealed that the employer
locked out its employees to exert economic pressure on
them in support of its bargaining position and in retali-
ation for the Union's refusal to accede to the employer's
bargaining position and that the employer intended to
continue doing business after the lockout. In Loomis Cou-
rier the employer intended to continue doing business
after the lockout and the lockout was motivated by the
employer's desire to exert economic pressure on the em-
ployees in support of its bargaining position which con-
duct the Board found was inherently destructive of em-
ployees' rights and was designed to frustrate collective
bargaining. In the instant case the complaint is narrowly
drawn. It does not allege that the lockout was illegal be-
cause it was designed to frustrate union activity or to de-
stroy or undermine union representation or was motivat-
ed by an improper intent to injure the Union. Nor can
the complaint be construed so as to encompass these the-
ories. Rather, the complaint which has been set out
1112
ARMOUR OIL COMPANY
above in haec verba, alleges that the lockout violated Re-
spondent's bargaining obligation under the Act because it
was in derogation of the "no strike, no lockout" provi-
sion contained in the Respondent's contract with the
Union. 2 5
I am of the opinion that the evidence in this case
which is pertinent to the question involving the alleged
illegal lockout must be considered in the light of the
Board's decisions issued in Lumber and Sawmill Workers,
Local No. 2647, et al. (Cheney California Lumber Compa-
ny), 130 NLRB 235 (1961), enfd. 319 F.2d 375 (9th Cir.
1963); Iron Workers Local Union No. 708 (Clark Con-
struction Company), 169 NLRB 1062 (1968); Teamsters
Local No. 741 International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Inde-
pendent (Los Angeles-Seattle Motor Express, Inc.), 170
NLRB 61 (1968). See also Local Union 191, affiliated with
International Union of Electrical, Radio and Machine
Workers, AFL-CIO: and International Union of Electrical,
Radio and Machine Workers, AFL-CIO (General Electric
Company), 181 NLRB 715, 719 (1970). In Cheney Califor-
nia Lumber Company, the Board held that a strike which
violated a contractual no-strike clause did not constitute
a violation of the union's bargaining obligation within
the meaning of Section 8(b)(3) of the Act. The court in
affirming the Board (319 F.2d 375, 378), stated inter alia:
In our judgment the fact that a strike, otherwise
wholly consistent with good-faith collective bar-
gaining, constitutes a violation of a no-strike agree-
ment does not, per se, render the strike a refusal to
bargain in good faith. Cheney has its remedy for
damages resulting from this contract violation.
Whether the conduct of the Union in calling the
strike constitutes a refusal to bargain in good faith
must be determined not on a per se basis but on a
scrutiny of the circumstances taken in their entirety.
In Iron Workers Local No. 708 the Board held the union's
strike over a delayed payday grievance while the griev-
ance was being handled under the contract grievance
procedures was not a violation of the union's duty to
bargain under Section 8(b)(3), notwithstanding it was in
violation of the no-strike provision of the contract and
no notice under Section 8(d) had been given. A similar
conclusion was reached in Teamsters Local No. 741
where the union struck in support of its position on a
pay grievance but in violation of the express no-strike
clause of its agreement. I realize that these cases involve
strikes by unions in violation of contractual no-strike, no-
lockout provisions, not lockouts by employers in deroga-
tion of contractual no-strike, no-lockout provisions.
However, an evenhanded application of the Act requires
that allegations that employers have violated their statu-
tory bargaining obligation by locking out employees in
derogation of a contractual no-strike, no-lockout provi-
sion be judged by similar standards.
In the instant case assuming that Respondent's disput-
ed conduct was a lockout, the record does not establish
2s In view of the limited scope of the complaint, I have not considered
whether the alleged lockout was discriminatory within the meaning of
Sec. 8(aX3)
that Respondent's objective in locking out its employees
was in whole or in part to modify the terms of the gov-
erning collective-bargaining agreement or was in support
of its bargaining position for a new contract. 2 6 Rather,
the record establishes that Respondent had a good reason
to believe that the Union intended to strike when the
contract terminated and that it was this belief which
prompted Respondent 2 days before the contract's termi-
nation to cut back its business operations with the intent
of completely ceasing operations if the Union did in fact
strike as expected. Under these circumstances, although
Respondent's alleged lockout may have been in breach
of its contractual no-strike, no-lockout provision with the
Union, it does not constitute a refusal to bargain within
the meaning of Section 8(a)(5) or 8(d) as alleged in the
complaint. I therefore shall recommend that this allega-
tion be dismissed. 2 7
F. Respondent Allegedly Violated Section 8(a)(1) and
(3) of the Act by Transferring Work Performed by its
Martinez Terminal Drivers to its Facilities Located in
Sacramento and San Jose Because of the Employees'
Union Activity
1. The evidence
Respondent's customers in northern California prior to
September were serviced through its Martinez, Califor-
nia, terminal whose drivers are represented by the
Union. Since September I11, Respondent has domiciled
trucks in Sacramento and San Jose, California, and em-
ployed drivers at those locations to drive these trucks
and service Respondent's customers in the Sacramento
and San Jose areas, 2 8 which previously were serviced by
the Martinez terminal drivers.
Respondent domiciled three trucks in Sacramento,
which at first were driven by drivers on temporary as-
signment from its Bakersfield and Martinez terminals,
and thereafter by newly hired drivers permanently as-
signed to this facility. The Sacramento facility is not part
of the unit of employees represented by the Union, thus
26 The sole evidence which could be arguably pointed to as indicating
that the alleged lockout was used by Respondent In support of its bar-
gaining position for a new contract are the comments made on June 30
by representatives of management to employees, described in detail supra.
to the effect that there would be no work without a contract. These re-
marks when taken in context are equivocal and by themselves are insuffi-
cient to support a finding that the alleged lockout was used by Respond-
ent to support its bargaining position for a new contract. particularly
since the day when these statements were expressed Respondent had
every reason to believe that the Union by the end of that day would
strike when the contract terminated. In any event, I have serious doubts
whether a lockout in derogation of the terms of a contractual no-lox:kout
provision even if motivated by the employer's desire to support its bar-
gaining position for a new contract, as contrasted to modifying the terms
of an existing contract, would by itself constitute a refusal to bargain as
alleged in the instant case. I need not. however, decide this question.
21 In view of this, I shall also recommend the dismissal of the allega-
tions that the strike of July I was caused in whole or in part by the lock-
out.
2 The terms Sacramento area and San Jose area, as used in this Deci-
sion, do not refer simply to the cities of Sacramento and San Jose or to
the localities immediately adjacent thereto, but to all of the areas north,
south, east, and west of Sacramento, i e. Reno-Lake Tahoe, and south of
San Jose, i e. Santa Maria, previously serviced by the Martinez terminal
drivers
1113
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is not covered by Respondent's contract with the Union
and there is no contention that the Union is the bargain-
ing representative of these drivers. Quite the contrary,
the Sacramento terminal drivers are represented by
Teamsters Local Union No. 150 in whose territorial ju-
risdiction they work. On October 12, this union and Re-
spondent commenced contract negotiations, but failed to
reach an agreement after several bargaining sessions. The
negotiations reached an impasse in December when
Local 180 adopted a take it or leave it bargaining posi-
tion, namely, it took the position that it would accept
only a contract identical to Respondent's contract with
the Union.
Regarding the San Jose facility, the Respondent domi-
ciled one truck there and assigned two of its Martinez
terminal drivers to work in San Jose to permanently
drive that truck and service Respondent's customers in
the San Jose area. 2 9 The Union and Respondent have at
all times treated the two drivers employed at San Jose as
an accretion to the unit of drivers employed at the Mar-
tinez terminal. Accordingly, the San Jose drivers are rep-
resented by the Union as a part of the Martinez terminal
unit and are covered by the terms of Respondent's col-
lective-bargaining contract with the Union covering this
unit.
The creation of the Sacramento facility by the Re-
spondent significantly affected the drivers represented by
the Union employed at the Martinez terminal. All of the
Martinez terminal drivers, except for a few at the top of
the seniority roster,3 0 suffered a substantial drop in their
work and earnings as the result of the transfer of work
from the Martinez terminal to the Sacramento terminal.
Likewise, as described in detail infra, the placing of one
truck in San Jose to service the customers in the San
Jose area who had previously been serviced from the
Mantinez terminal significantly affected the Martinez
drivers' terms and conditions of employment.
The circumstances leading up to and surrounding the
establishment of the Sacramento terminal are as follows.
Respondent does not store the fuel it sells, rather it
buys fuel from various refineries and traders and picks
up this fuel either directly from refineries or pipeline ter-
minals. Respondent domiciles its trucks close to major
fuel pickup points located in major customer areas. This
is true of the Martinez terminal. The reason for so locat-
ing the pickup points is that the cost to deliver fuel by
pipeline is substantially less than the cost to deliver it by
truck and the cost is even less where the pickup is made
directly from a refinery.
Prior to the opening of the Sacramento facility, Re-
spondent serviced its customers in the Sacramento area
by picking up gasoline from pickup points located near
the Martinez terminal and from a pipeline storage facility
located in Sacramento. The typical delivery to Sacra-
mento area customers was as follows. A truck was dis-
patched from Martinez. It would first pick up a load of
gas at one of the refineries or pipeline storage facilities in
the vicinity of the Martinez terminal and deliver that
2" Since Respondent operates 24 hours a day, its drivers work in
shifts-two to a truck.
'o The Martinez terminal drivers -e assigned work on the basis of
their terminal seniority.
load to Sacramento area customers. The truck would
then pick up another load or several loads of gasoline in
Sacramento from the Sacramento pipeline and deliver
them to Sacramento area customers. The truck at the
end of the driver's work shift returned empty to the
Martinez terminal. The distance between Sacramento
and Martinez is approximately 65 miles.
Respondent about a year prior to the opening of the
Sacramento terminal concluded that its method of sup-
plying gasoline products to its Sacramento area custom-
ers was uneconomical in view of the fact that the
amount of its business in that area had grown substantial-
ly. Henry Armour testified that due to this growth in
business Respondent decided it was now in a position to
attempt to take advantage of the economies of transpor-
tation which it could realize by domiciling trucks in Sac-
ramento and having them load up with gasoline at the
Sacramento pipeline. Henry and Bryam Armour, the per-
sons who manage Respondent's business, thought that
Respondent's operating costs would be reduced by domi-
ciling trucks in Sacramento because such a delivery
system would eliminate the empty back haul to Martinez
and since transporting fuel by truck is more expensive
than by pipeline, having trucks domiciled in Sacramento
would also eliminate the more costly front haul. In addi-
tion, they believed that by domiciling trucks in Sacra-
mento, closer to their customers in that area, they would
be able to furnish its customers faster service which
would give Respondent an edge over its competitors.
When Respondent, several months prior to the estab-
lishment of the Sacramento terminal, concluded it would
be economically advantageous to domicile trucks in Sac-
ramento it commenced to talk with officials of the com-
panies which supplied it with gasoline so as to determine
whether these suppliers would be able to supply Re-
spondent with a sufficient amount of product in Sacra-
mento to enable Respondent to open a Sacramento ter-
minal. Initially, Henry Armour testified, Respondent
thought in terms of opening a Sacramento terminal by
mid-1980 inasmuch as the opening of a new terminal is a
complex matter involving considerations of such things
as the quantity of product available close to the yard,
length of delivery distance, grade availability, and con-
stancy of availability. Hence Respondent felt it would
not be in a position to open a terminal in Sacramento
until mid-1980. As early as March 1979, however, Henry
and Bryam Armour conmenced discussions with repre-
sentatives of the Aminoil Company, one of the compa-
nies that supplied Respondent with product in Sacramen-
to and which stores Respondent's product in Sacramen-
to. These discussions with officials from Aminoil in-
volved securing more product and terminalling product
for Respondent in Sacramento. The discussions were
prolonged due to the fact that in the spring of 1979 the
Department of Energy issued new regulations which
substantially effected Respondent's method of doing busi-
ness. These new regulations created new suppliers at dif-
ferent locations, altered product availability, altered
product certainty, and created in general a need for the
adjustment of Respondent's prior business practices. Also
Respondent had to prepare for labor negotiations which
1114
ARMOUR OIL COMPANY
were occurring in June 1979 because collective-bargain-
ing contracts covering several of its terminals had termi-
nated or were about to terminate that month. Since Re-
spondent's overall business operation was managed by
Henry and Bryam Armour, they were unable, under the
aforesaid circumstances, to devote as much time as was
necessary to the opening of a terminal in Sacramento.
Thus it was not until August 28 that the Armours' nego-
tiations with Aminoil resulted in a commitment from that
company to make as much as possible of Respondent's
allocation of gasoline available in Sacramento. Previous-
ly the Armours had also been negotiating with officials
of Wickland Oil about terminalling in Sacramento and
had gotten that Company's agreement to terminal prod-
uct for Respondent in Sacramento. In addition, Respond-
ent secured commitments with respect to Sacramento
product from Pauley and Douglas Oil Companies. Based
on these commitments to furnish Respondent with addi-
tional gasoline in Sacramento, Henry Armour testified
that immediately after their August 28 meeting with the
officials of Aminoil the Armours decided to open a ter-
minal in Sacramento.
As described in detail infra, contemporaneously with
Respondent's decision to open a terminal in Sacramento,
the manager of the Martinez terminal, Dennis Berg, noti-
fied the Union that Respondent intended to operate
trucks out of Sacramento because it thought such a step
was economically feasible.
2. Conclusions
The complaint alleges that Respondent violated Sec-
tion 8(a)(3) and (1) of the Act because it "transferred
work performed by employees in the unit from the Mar-
tinez facility to its facilities in Sacramento and San Jose"
because of the employees' union activity. 3 1 In support of
this allegation the General Counsel points to the timing
of the establishment of the Sacramento and San Jose
facilities, which were opened hard on the heels of the
strike, and the statements made by Acting Terminal
Manager Rapoza in September to the effect that the
drivers would not receive additional work until Union
Business Representative Fleming, whom the Company
was not happy with, was replaced.3 2 I am not persuaded
by the General Counsel's argument.
:l During the strike Respondent did not operate the Martinez terminal
Its customers hired common carriers to pick up the product they pur-
chased from Respondent. At the end of the strike, on approximately
August 13, Respondent resumed delivering product to all of its customers
except those who were located in the Sacramento area. The Sacramento
area customers still received their product from Respondent via common
carriers until September 11 when Respondent opened its Sacramento fa-
cility. The complaint does not allege that the loss of work suffered by the
Martinez terminal drivers from the end of the strike until September II
because of Respondent's failure to resume making deliveries in the Sacra-
mento area was discriminatorily motivated. However, to the extent that
this matter was litigated, the record shows that Respondent's reason after
the strike for not resuming its Sacramento area deliveries was closely re-
lated to its decision to open a terminal in Sacramento which decision, for
the reasons set forth hereinafter, was not unlawful
32 The General Counsel's further contention that the Martinez drivers
were assigned temporary work in Sacramento only after the Union
agreed to replace Fleming as the employees' business agent is not accu-
rate The record shows that the Union announced Fleming's replacement
for the first time September 17 and that driver Olds was asked by Rapoza
on September 14 to work in Sacramento.
Rapoza's conduct violated Section 8(a)(1) and (5) of
the Act and provides an inference that Respondent was
antagonistic toward Union Business Representative
Fleming on account of his aggressive bargaining on
behalf of the employees during the recent contract nego-
tiations and was attempting to exert pressure upon the
employees to effect Fleming's removal. However, to
draw the further inference from Rapoza's statements that
Respondent was antagonistic toward the employees be-
cause they supported Fleming's bargaining position by
striking would be unwarranted. Rapoza's statements
simply indicate that Respondent was mad at Fleming,
not the employees. Nor does the record otherwise con-
tain extrinsic evidence which would warrant the conclu-
sion that Respondent was hostile toward its employees
for striking.
Regarding Respondent's decision to open a facility in
Sacramento and the timing of that decision, the record,
as described supra, establishes that the reason for that de-
cision was based on legitimate business reasons; that the
decision was reached prior to the strike but was contin-
gent upon Respondent securing commitments from its
suppliers that they would furnish a sufficient supply of
gasoline to Respondent in Sacramento; that Respondent's
discussions with its suppliers commenced prior to the
strike and continued during the strike and ended August
28, during the normal course of business, with the suppli-
ers, in particular Aminoil, giving their commitment to
supply Respondent with sufficient product for Respond-
ent to open a Sacramento terminal. 3 3
In view of Respondent's legitimate reason for estab-
lishing the Sacramento facility and the lack of evidence
that Respondent was hostile toward its employees for
striking in support of the Union's bargaining position,3 4 I
cannot say that the General Counsel has proven by a
clear preponderance of the evidence that the transfer of
work from Martinez to Sacramento was unlawfully moti-
vated by Respondent's hostility toward the employees
33 The aforesaid findings pertaining to Respondent's decision to open a
Sacramento facility and the timing of this decision, which are described
in detail supra, are based upon the testimony of Henry Armour who im-
pressed me as an honest and reliable witness and whose testimony was
not inherently incredible when viewed in the context of the whole
record. I realize that the record establishes that the Armours did not ini-
tially think that Respondent would be in a position to open a Sacramento
facility until mid-1980. How2ver, I also note that Armour's testimony
that Respondent had decided prior to the strike to open a Sacramento
facility if it could secure a commitment from its suppliers to furnish it
with an adequate supply of gasoline at that location is corroborated by
the testimony of employee Clement, a witness for the General Counsel,
who testified that a month or more prior to the strike Terminal Manager
Berg asked whether Clement, who was number one on the seniority
roster, would consider transferring to Sacramento with another driver
and work out of that location if Respondent domiciled two trucks there
34 The General Counsel does not urge that the withdrawal of unit
work from the Martinez terminal to the Sacramento facility was motivat-
ed by Respondent's desire to escape from the terms of the contract it had
recently negotiated with the Union In any event there is insufficient evi-
dence to support such a finding The fact that Respondent adamantly re-
jected Local 150's demand that it accept a contract for its Sacramento
facility identical to its contract with the Union does not prove that the
establishment of the Sacramento operation was motivated by a desire to
escape from the terms of the contract which covered the Martinez termi-
nal.
1115
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for engaging in union activity, rather than by its desire
to operate in a more economical manner.
Likewise, I cannot say that the General Counsel has
proven by a clear preponderance of the evidence that
the transfer of two drivers from the Martinez terminal to
San Jose to drive a truck domiciled in San Jose was un-
lawfully motivated by Respondent's hostility toward the
employees for engaging in union activity, rather than by
its desire to operate in a more economical manner. I real-
ize that the testimony of employee Greene, one of the
drivers assigned to drive the San Jose truck, that 75 per-
cent of his loads are picked up in the Martinez area
rather than San Jose, makes Henry Armour's estimony
that "it is transportational efficient" to keep one truck in
San Jose, suspect. On the other hand the two drivers Re-
spondent assigned to drive the San Jose truck are union
members and Respondent at all times has treated its San
Jose operation as an accretion to its Martinez terminal
unit and has recognized the Union as the exclusive bar-
gaining agent of the San Jose drivers and applied the
terms of its contract with the Union to them. In view of
these circumstances I am of the opinion that the evi-
dence is not sufficient to establish that Respondent as-
signed two drivers and a truck to San Jose for the pur-
pose of discriminating against the unit employees because
of their union activity.
It is for the aforesaid reasons that I shall recommend
that this allegation be dismissed in its entirety.
G. Respondent Allegedly Violated Section 8(a)(5) and
(1) of the Act by Transferring Bargaining Unit Work
From its Martinez Terminal to Facilities in San Jose
and Sacramento Without Affording the Union an
Opportunity to Bargain
1. The evidence
On September 11 Respondent domiciled two trucks in
Sacramento and a few days later added a third one. Ini-
tially, these trucks were driven by drivers who were
temporarily assigned to work in Sacramento from the
Company's Bakersfield, California, terminal where work
was slow. Thereafter, during September and October all
but two of the Bakersfield terminal drivers were re-
placed by four Martinez drivers who were temporarily
assigned to work in Sacramento inasmuch as there was
not enough work at the Martinez terminal for all of the
drivers on the seniority roster. Respondent began to hire
permanent drivers for its Sacramento operation on Octo-
ber 15 and by November 11 had hired a complete staff of
permanent drivers to work at that location at which
point the last of the temporary drivers returned to Re-
spondent's Bakersfield and Martinez terminals. Henry
Armour testified that the reason Respondent delayed
until October 15 to hire permanent drivers for its Sacra-
mento facility was that "when [Respondent] first domi-
ciled trucks there on September 11 or 12 [it was] still not
sure that-is was going to be a permanent facility. [Re-
spondent] wanted to see how it would work."
The drivers who drive the three trucks domiciled at
Respondent's Sacramento terminal deliver to customers
in the Sacramento area formerly serviced by the drivers
from the Martinez terminal. All of the drivers employed
at the Martinez terminal, except for those at the top of
the seniority roster, have suffered a substantial drop in
work and a substantial loss in their earnings as a result of
the transfer of the Sacramento area work from the Mar-
tinez terminal to the Sacramento terminal. The drivers
employed in Sacramento are not a part of the unit of
Martinez terminal drivers represented by the Union and
are not covered by the Union's contract with Respond-
ent.
On or about the same date that Respondent began its
Sacramento operation it also transferred one truck from
its Martinez terminal to San Jose to make deliveries for
the San Jose area which had formerly been made by
drivers assigned to the Martinez terminal. Respondent
reassigned two of its Martinez terminal drivers to work
in San Jose on a permanent basis to drive this truck and
make deliveries in the San Jose area. Unlike Sacramento,
Respondent did not open a separate facility in San Jose.
The two San Jose drivers are still dispatched by the
Martinez terminal's dispatcher, when they run out of
working hours they are relieved by a driver on the Mar-
tinez terminal's seniority roster, and the parties have
treated the San Jose operation as an accretion to the
Martinez terminal. Thus, the two drivers who are perma-
nently assigned to San Jose, Greene and Love, have at
all times remained part of the Martinez terminal bargain-
ing unit represented by the Union and are covered by
the governing collective-bargaining agreement.
The bargaining unit employees have been affected by
the transfer of the truck to San Jose and the permanent
assignment of two drivers from the Martinez terminal to
San Jose to make all of the San Jose area deliveries. The
two drivers permanently assigned to San Jose are re-
quired to commute a substantially greater distance in
order to get to and from work because Martinez is ap-
proximately 60 miles from San Jose.3 5 In addition, the
permanent assignment of all of the San Jose area work to
two drivers adversely affected the amount of work and
earnings of the Martinez terminal drivers who were
higher on the seniority roster than these two drivers and
who would as a result of their seniority have ordinarily
been assigned the San Jose area work. This was particu-
larly true during the time material herein inasmuch as
the work at the Martinez terminal had been significantly
reduced due to the transfer of the Sacramento area
work.
Respondent did not notify a representative of the
Union that it intended to transfer a truck to San Jose
which would make the deliveries in the San Jose area
formerly made by the Martinez terminal trucks and that
it intended to assign two of the Martinez drivers to drive
this truck. On the other hand, Respondent gave the
Union advance notification of its intent to establish a
Sacramento facility. During the latter part of August,
when Respondent made its decision to establish the Sac-
ramento facility, Terminal Manager Berg notified Union
Steward David Cline that Respondent intended to oper-
ate trucks out of Sacramento because it would be more
economical than operating them from the Martinez ter-
35 One of the drivers must commute 127 miles a day.
1116
ARMOUR OIL COMPANY
minal. Cline immediately communicated this information
to Union Business Representative Fleming. Fleming told
Cline there was nothing that the Union could do about
this because Sacramento was outside of the Union's terri-
torial jurisdiction as set forth in the governing collective-
bargaining agreement. The Union thereafter never
sought out a representative of Respondent to request bar-
gaining over the Company's decision to open a facility in
Sacramento or the effect of this decision on the Martinez
terminal drivers.
A description of the negotiations leading up to the
signing of Respondent's current contract covering the
Martinez terminal which is effective from July 1, 1979,
through July 1, 1982, follows insofar as it is relevant to
Respondent's contention, discussed, infra, that "Respond-
ent specifically negotiated in 1979 a contract right to
open yards at places like Sacramento and San Jose and
to transfer work previously done by the Martinez yard."
The negotiators for Respondent and the Union held
bargaining sessions on June 27, July 11, 25, 28, and
August 13. The pertinent proposals and discussions
which took place at these meetings follow.
a. June 27 bargaining session
Respondent proposed that the language in the existing
agreement which referred to Joint Council No. 7 be de-
leted. In this regard the contract, in the preamble stated
that the agreement was between Respondent and the
Union "and will include all Teamster Locals under the
territorial jurisdiction of the Joint Council No. 7."3 In
addition the contractual recognition clause stated: "Em-
ployees covered by this agreement shall mean all em-
ployees domiciled within the territorial jurisdiction of
Joint Council No. 7." Respondent also proposed several
changes in the seniority provision of the existing agree-
ment. One of these changes entitled "Terminal Seniority
Shall Prevail; Transfers Between Terminals," referred to
herein as Respondent's terminal seniority transfer propos-
al, reads as follows:
Terminal Seniority, as measured by length of most
recent unbroken service at such terminal, shall pre-
vail except in those instances in which the Employ-
el and the union agree otherwise, except as follows:
Where an employee moves from one terminal to an-
other at the request of the Employer, he shall
accrue seniority at the new terminal from his first
day of employment there for a period of 180 calen-
dar days. On the 181 st. calendar day at the new
terminal, the employee shall have added on his se-
niority from his old terminal and this total shall be
considered terminal seniority at the new terminal.
Should the employee return to his old terminal
prior to 180 calendar days he shall retain his old
terminal seniority increased by his calendar days at
the new terminal.
Respondent also proposed extensive modifications and
additions to the existing contractual "No Strike; No
Lockout" provision. The part of this proposal which is
'^ The Union is one of several Teamsters locals affiliated with Joint
Council No 7 and subordinate to that Council
pertinent to this case was entitled "Reduction Of Forces
Not Lock Out," herein called the lockout proposal, reads
as follows:
It is expressly agreed that reduction of work
forces, or the closing of the plant or any depart-
ment or single operation thereof, when made neces-
sary by economic reasons, shall not be deemed a
lock out.
There was no discussion of either of the aforesaid pro-
posals at this meeting.
The Union included in its proposed contract a provi-
sion dealing with the subject of seniority, referred to
herein as the Union's terminal seniority transfer proposal,
which reads as follows:
If an employee is forced to change terminals be-
cause of lack of work or combining of terminals,
the seniority shall be dovetailed.
If the employer has need for new hires in other
terminals and/or areas, the employer shall offer
such work to the existing employees at the other
terminals with seniority prevailing as to who would
go. Notices shall be posted in each terminal to this
effect. Employees so transferred shall go to the
bottom of the seniority list.
Henry Armour, Respondent's negotiator at the outset of
this meeting, objected to the first paragraph of this pro-
posal on the grounds that it was ambiguous. Regarding
the second paragraph Armour rejected it on the ground
that in the past when Respondent opened new terminals
it had always unilaterally chosen whom to employ in
those terminals and did not intend to abandon this prac-
tice. Armour, in rejecting this proposal, noted that Re-
sponden's terminal seniority transfer proposal might sat-
isfy the Union, but that Respondent could not accept the
Union's proposal.
b. July 11 bargaining session
The parties discussed Respondent's proposal that the
reference to Joint Council No. 7 be deleted from the
contract. Fleming took the position that the Union
would not sign a contract which did not refer to Joint
Council No. 7 in the same terms as the recently terminat-
ed contract.
The parties discussed Respondent's no-lockout propos-
al. Fleming took the position that this provision gave Re-
spondent too much freedom and stated that the Union
would not accept a contract with this language. Armour
stated that the Company needed such language to oper-
ate as flexibly as it had operated in the past.
c. July 25 bargaining session
The parties' positions remained the same concerning
Respondent's proposed deletion of any reference to Joint
Council No. 7 in the agreement Armour was adamant
that this reference should be deleted, whereas Fleming
was equally insistent that it remain.
Regarding Respondent's terminal seniority transfer
proposal Fleming stated that this proposal was totally
I 1117
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unacceptable to the Union and that the Union wanted
something along the lines of its terminal seniority trans-
fer proposal, explaining to Armour that it was the
Union's position that if the Company opened any new
facilities which affected the current work being per-
formed by the Martinez terminal drivers that the Union
wanted these drivers to be protected and that they
would be protected by a provision requiring the Compa-
ny to offer them jobs at the new facility. Armour took
the position that Respondent needed the absolute right to
hire whomever it wanted when it opened a new facility
and could not be tied to offering jobs to new hires on
the basis of seniority, as the Union proposed. Armour
also stated that he thought the Union's proposal was am-
biguous which would lead to problems of interpretation
as to what constituted work which had previously been
performed by the Martinez terminal drivers, and suggest-
ed that the Union accept Respondent's terminal seniority
transfer proposal. Armour reiterated that the Company
felt very strongly about retaining its right to staffing a
new facility with whomever it wanted. Fleming indicat-
ed that the Union would not accept Respondent's termi-
nal seniority transfer proposal in lieu of the Union's pro-
posal.
Regarding Respondent's no-lockout proposal, Armour
informed Fleming that the Company needed this clause
in case it opened new terminals as it did not want any
problem. Fleming rejected this proposal stating that the
Union would not sign a contract which included this lan-
guage.
d. July 28 bargaining session
This meeting only lasted approximately 10 to 15 min-
utes. It was cut short when Fleming, after making it
clear that the Union would not accept any contract
which did not include Joint Council No. 7 language and
an uncapped cost-of-living provision, 37 informed
Armour that Respondent could take the rest of its pro-
posals and "put them . . .," whereupon Armour stated
he did not think anything was being accomplished and
left.
e. August 13 bargaining session
At the outset of this meeting Armour stated that the
Company wanted to settle the strike and had concluded
it would have to yield to the Union's demand for an un-
capped cost-of-living provision and although it did not
want to give in on its position that the reference to Joint
Council No. 7 should be deleted from the contract that it
would accept this language if it would make or break the
contract but that in return it would insist upon the Union
accepting its "no strike, no lock out" proposal, and sev-
eral other provisions offered by the Company which
Armour listed. Fleming accepted Respondent's proposal.
Prior to the conclusion of the meeting, Fleming in-
formed Armour that he wanted all of the trucks returned
to the terminal immediately. Armour stated that the
3' The recently terminated contract which was for 3 years included
provisions for an uncapped cost-of-living increase in the second and third
years. Respondent was proposing that the Union accept a 3-year contract
with either no cost-of-living increase or a capped cost-of-living increase.
trucks would be returned as soon as possible. He ex-
plained that the strike had lasted over 40 days and the
Company's business had suffered and it would take time
to build the business up to its prestrike level. Fleming
stated he wanted the same number of trucks domiciled in
the Martinez terminal's yard that were in the yard prior
to the strike. Armour asked for the minimum and maxi-
mum number of trucks that were in the yard in 1979 at
any one time. Union Steward Cline, who was present at
this meeting, stated that the number of trucks ranged
from a minimum of 6 to a maximum of 12. Armour
stated that in the very near future he would return the
number of trucks in that range consistent with the needs
of the business.38
f. August 15 bargaining session
By the time of this meeting the oral agreement
reached by the parties on August 13 had been reduced to
writing and ratified by the Union's membership. So,
Fleming and Armour met on this date to sign the agree-
ment.
The agreement as signed by the parties included the
identical Joint Council No. 7 language as contained in
the recently expired contract, the Union's uncapped cost-
of-living proposal, and Respondent's no-strike, no-lock-
out proposal. It did not include either Respondent's or
the Union's proposed terminal seniority transfer propos-
als.
During the August 15 meeting Fleming asked Armour
if the Company was going to open any new terminals.
Armour answered that he did not know. Fleming stated
that he expected his people to be employed in any new
terminal. Armour stated that the parties had negotiated a
contract which dealt with the issue of opening new
yards and that the subject had been fully discussed and
that Armour had already told Fleming how the Compa-
ny intended to staff its new yards.3 9
2. Conclusions
a. The Sacramento terminal
The complaint alleges that Respondent by transferring
work performed by the Martinez terminal drivers to its
facility located in Sacramento, "without prior notice to
the Union and without having afforded the Union an op-
portunity to negotiate and bargain," refused to bargain
within the meaning of Section 8(a)(5) of the Act.
a' The description of this meeting is based on Armour's testimony I
reject Fleming's testimony that he specifically told Armour that when
the drivers returned to work the Union expected they would work in the
same geographical areas as prior to the strike and that Armour agreed
that tno work would be taken away from the drivers that they had previ-
ously performed. Armour impressed me as a more credible witness than
Fleming. Also, Cline who testified for the General Counsel about this
meeting was not able to corroborate Fleming's testimony
i9 Based upon the testimony of Armour and those parts of Fleming's
testimony which are consistent, I reject Fleming's testimony that at this
meeting the subject of when drivers would be called back to work was
discussed and that Armour, in answer to a statement made by Fleming,
assured Fleming that if the Company did business in the Sacramento area
that the Martinez drivers would do the work Armour impressed me as a
more credible witness than Fleming.
1118
ARMOUR OIL COMPANY
The law is settled that "it is incumbent upon a union
to timely request bargaining in order to preserve its right
to bargain on that subject." Citizens National Bank of
Wilmar, 245 NLRB 316 (1979). In the instant case, as de-
scribed in detail supra, almost 2 weeks prior to the open-
ing of its Sacramento terminal Respondent informed the
Union of its intentions through Union Steward Cline.
Terminal Manager Berg late in August informed Cline
that for reasons of economy Respondent intended to op-
erate trucks out of Sacramento. Cline immediately passed
this information along to Union Business Representative
Fleming. Fleming did not seek bargaining about Re-
spondent's decision or its effects upon the unit employ-
ees. Fleming made no effort to speak to a representative
of Respondent about this matter because he thought the
Union could do nothing for the unit employees because
Sacramento was outside of the Union's contractual terri-
torial jurisdiction. I therefore conclude that, having
failed to exercise its right to demand bargaining over the
Company's decision to move part of its Martinez termi-
nal operation to Sacramento and its effect on the Mar-
tinez terminal's drivers the Union cannot now effectively
claim that Respondent unlawfully refused to bargain
over these matters. Accordingly, I shall recommend that
this portion of the complaint be dismissed in its entirety.
The fact that Respondent's decision to transfer a part
of its Martinez terminal drivers' work to Sacramento was
initially only a temporary one, in the sense that if it
turned out to be uneconomical the Sacramento operation
would be discontinued, did not excuse the Union's failure
to request bargaining. The Union's failure to act had
nothing to do with the finality or lack of finality of Re-
spondent's decision, rather it was motivated, as Fleming's
response to Cline indicates, by Fleming's belief that the
Union was powerless to act on behalf of the employees.
In any event the fact that Respondent's decision to relo-
cate a part of the unit work to Sacramento was not a
final one but was subject to change made it an even
more appropriate matter for collective bargaining, inas-
much as it would have obviously been easier for the
Union to persuade Respondent to change its mind at that
point than if Respondent had arrived at the bargaining
table with a closed mind which is quite often the product
of a final decision. In short, the lack of finality in the
Company's decision to relocate a part of the unit work
to Sacramento made it an even more appropriate subject
for collective bargaining.
b. The San Jose facility
The complaint alleges that Respondent transferred
work performed by the Martinez terminal drivers to a fa-
cility located in San Jose "without prior notice to the
Union and without having afforded the Union an oppor-
tunity to negotiate and bargain" and that by engaging in
this conduct refused to bargain within the meaning of
Section 8(a)(5) of the Act.
An employer violates Section 8(a)(5) of the Act when,
absent waiver by the appropriate bargaining agent of its
employees, it takes unilateral action with respect to mat-
ters which affect his employees' terms and conditions of
employment and which are mandatory subjects of bar-
gaining, without allowing the bargaining agent a mean-
ingful opportunity to bargain about the change or alter-
ation. N.L.R.B. v. Katz. et al., 369 U.S. 736 (1962);
N.L.R.B. v. C & C Plywood Corp., 385 U.S. 421 (1967).
In the instant case, Respondent's decision to deliver
gasoline products in the San Jose area 40 using San Jose
drivers rather than drivers assigned to the Martinez ter-
minal, and the impact of this decision on the unit em-
ployees constitutes a mandatory subject of bargaining.
The decision to domicile one truck in San Jose and to
permanently assign two of the Martinez terminal drivers
to drive this truck for the purpose of making deliveries
to the San Jose area customers resulted in a direct and
significant detriment to the unit employees' terms and
conditions of employment. The drivers permanently as-
signed to work out of San Jose were required to increase
substantially their daily commute to and from work. Spe-
cifically, one of the drivers must now commute 127 miles
each day. In addition, the transfer of the San Jose area
work from the Martinez terminal caused the drivers who
work there, particularly those with more seniority than
the drivers permanently assigned to San Jose, to suffer a
loss of work and earnings. In this regard the record re-
veals that Respondent was obliged by the terms of its
contract with the Union to assign work to its Martinez
terminal drivers in the order of their seniority. Since
there was a lack of work for the Martinez terminal due
to the transfer of the Sacramento area work, Respond-
ent's permanent assignment of all of the San Jose area
work to two drivers was calculated to result in the loss
of employment by those drivers with more seniority than
the drivers who were given the San Jose area work. 41 In
view of the aforesaid circumstances, I am persuaded that
even though Respondent's decision to transfer the San
Jose area work from the Martinez terminal to San Jose
did not reduce the total amount of work performed by
the unit employees; 42 it nonetheless constituted a materi-
al, substantial and significant change in the unit employ-
ees' terms and conditions of employment. It is for this
reason that I have concluded that Respondent's decision
to transfer the San Jose area work from the Martinez ter-
minal drivers to drivers permanently assigned to San
Jose constitutes a mandatory subject of bargaining. In
reaching this conclusion I note that there is no conten-
tion nor does the record establish that a major capital in-
vestment was undertaken by Respondent in establishing a
San Jose facility. Nor does the record otherwise establish
that requiring Respondent to bargain about this decision
and its impact upon the unit employees would consider-
ably abridge its freedom to manage its business.
It is undisputed that Respondent conveyed no notice,
written or oral, to the Union concerning the transfer of
unit work from the Martinez terminal to San Jose. Nor
40 As noted supra. the reference to the San Jose area includes not just
the city (of San Jose and the area immediately adjacent thereto but to all
those communities south of San Jose which were serviced by the Mar-
tinez terminal drivers prior to the assignment of two drivers to San Jose
4' The record, GC. Exh. 14, shows that one of the San Jose drivers.
Love. was number 17 on the seniority roster and the other driver,
Greene, was inumber 23.
42 As noted preCiously, the Union and Respondent have treated the
San Jose operation and the two drivers assigned there as an accretion to
the Martine terminal bargaining unit
1119
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does the record indicate when, if ever, the employees no-
tified the Union of this state of affairs or when the Union
otherwise learned of Respondent's conduct. In any event
assuming that the Union learned of the existence of the
San Jose operation immediately after it was established,
the Union was at that point confronted with afait accom-
pli and was not afforded an opportunity to bargain
during the critical time when such bargaining would
have been productive.
In summation, as I have found supra, Respondent's de-
cision to domicile a truck in San Jose and to permanent-
ly assign two of the Martinez terminal's drivers to work
in San Jose, making the San Jose area deliveries previ-
ously performed by the Martinez terminal drivers, consti-
tuted a mandatory subject of bargaining which Respond-
ent put into effect without bargaining with the Union
about the decision or its impact upon the unit employees
or without affording the Union an opportunity to bargain
about these matters. Respondent does not appear to dis-
pute these conclusions, rather in its post-hearing brief de-
fends solely on these grounds: (I) "The known and ac-
cepted practice of Respondent was to open new yards
and transfer work from existing yards when business rea-
sons so dictated, without bargaining with the Union rep-
resenting the losing yard"; (2) "Respondent specifically
negotiated in 1979 a contract right to open yards at
places like Sacramento and San Jose and to transfer
work previously done by the Martinez yard"; (3) "The
opening of the San Jose yard was done in accordance
with the collective bargaining agreement."
Regarding (1) the record contains no evidence of such
a past practice involving the bargaining unit represented
by the Union during the period of the time that the
Union was the unit employees' bargaining agent.
Regarding (2) and (3), Respondent argues that its uni-
lateral action in removing work from the Martinez termi-
nal and requiring certain drivers to commute longer dis-
tances by establishing a facility in San Jose was excused
by the terms of its collective-bargaining contract with
the Union and by the Union's conduct during the negoti-
ations which resulted in this contract. This contention
must be evaluated in the light of the settled principle that
"a waiver of bargaining rights by a union will not be
lightly inferred and must be clearly and unequivocally
conveyed." Allen W. Bird I, Receiver for Caravelle Boat
Company, a Corporation, and Caravelle Boat Company,
227 NLRB 1355 (1977). As the court observed in N L
Industries, Inc. v. N.L.R.B., 536 F.2d 786, 789 (8th Cir.
1976), "It is settled law that any waiver of the statutory
right to bargain over a mandatory subject of bargaining
must be in 'clear and unmistakable language."' Whether
there has been a clear relinquishment of the bargaining
right is based upon an analysis of the contractual lan-
guage and the facts and circumstances surrounding the
negotiations which resulted in the contract. See N L In-
dustries, Inc. v. N.L.R.B., supra, 536 F.2d at 789. A
waiver will not be inferred, however, solely from what
was stated during the contract negotiations "unless it can
be said from an evaluation of the . . . negotiations that
the matter [in dispute] was 'fully discussed' or 'con-
sciously explored' and that the Union 'consciously yield-
ed' or clearly and unmistakably waived its interest in the
matter." Clifton Precision Products Division, Litton Preci-
sion Products, Inc., 156 NLRB 555, 562 (1966), and cases
cited therein. It is against these principles which Re-
spondent's waiver defense must be measured.
In support of its contention that the Union waived its
right to be afforded an opportunity to bargain about the
matter in dispute by the terms of the governing collec-
tive-bargaining contract, Respondent relies on section 3
of the contractual "No Strikes Or Lockouts" provision
which in pertinent part reads:
Reduction Of Forces Not Lockouts
It is expressly agreed that reduction of work
force, or the closing of the plant or any department
or single operation thereof, when made necessary
by economic reasons, shall not be deemed a lock
out.
This provision does not by its express terms sanction a
unilateral reassignment of unit work from the Martinez
terminal to another facility. It simply indicates that such
conduct "shall not be deemed a lock out." Manifestly
this provision by itself does not constitute a clear and un-
mistakable waiver of the Union's statutory right to be
consulted about the change in operations involved
herein. I recognize that during the contract negotiations
Union Representative Fleming did not contradict Henry
Armour's statement that Respondent needed this particu-
lar provision "if [Respondent] opened new terminals"
and that Fleming in rejecting this provision stated that if
it was included in the contract he thought "the company
could do anything it wanted to do." However, this con-
duct on the part of Fleming is too ambiguous to amount
to union acquiescence that this provision permitted Re-
spondent's unilateral conduct involved herein. The state-
ments of Fleming and Armour at the bargaining table are
too ambiguous to establish that the parties were in agree-
ment that the transfer of work from the Martinez termi-
nal to a new facility was within the unilateral control of
Respondent. Quite the opposite, the description of the
bargaining sessions, set forth in detail supra, establish that
this question was not fully discussed nor consciously ex-
plored. Finally, I have considered that the Union in
order to reach a collective-bargaining agreement with-
drew its proposal which provided that if Respondent
opened a new facility which effected the work of the
unit employees that those employees would have prefer-
ential hiring rights at the new facility. Plainly this does
not establish that the Union agreed that Respondent
would have the right to unilaterally transfer unit work to
a new facility. When it is viewed in the give and take of
the negotiations, described in detail supra, the Union's
withdrawal of this proposal, at most, establishes that the
parties agreed that if Respondent opened a new facility
outside the bargaining unit that Respondent would have
the unilateral right to hire whomever it wanted even
though the new facility effected the work of the unit em-
ployees. In summation I am of the opinion that an evalu-
ation of the pertinent contractual language and the facts
and circumstances surrounding the negotiations herein
fails to establish a clear relinquishment by the Union of
1120
ARMOUR OIL COMPANY
its statutory right to bargain about Respondent's decision
to establish a San Jose facility and its effect upon the unit
employees.
Based upon the foregoing I find that by unilaterally
deciding to transfer and by unilaterally transferring work
performed by its Martinez terminal drivers to its San
Jose facility and permanently reassigning two of its Mar-
tinez terminal drivers to work in San Jose and by failing
to consult with or bargain with the Union concerning
the decision and the effects of the decision to transfer
such work and reassign such employees, Respondent has
violated Section 8(a)(5) and (1) of the Act.
H. Respondent Allegedly Provided "Inferior" Trucks
to Its Martinez Terminal Drivers and Refused to
Return the Trucks They Used Prior to the Strike, In
Violation of Section 8(a)(l), (3), and (5) of the Act
1. The evidence
During the 6 months prior to the July I strike, the
drivers employed at the Martinez terminal usually had
eleven trucks to drive. (Resp. Exh. 8.) During the strike
which lasted from July I to August 13 the Martinez ter-
minal did not operate and its trucks were transferred ini-
tially to Respondent's Bakersfield terminal and thereafter
to its Paramount terminal which services the Los Ange-
les, California, area. When the strike ended, Respondent
initially returned six trucks to the Martinez terminal and
in October added a seventh. (Resp. Exh. 8.)
Henry Armour testified that there were two reasons
why Respondent did not return the same number of
trucks to Martinez when the strike ended that were there
before the strike. First, as described earlier in this Deci-
sion, Respondent after the strike transferred to its newly
opened Sacramento facility a significant amount of the
work previously performed by the drivers assigned to
the Martinez terminal.4 3 Second, Respondent lost the
common carrier delivery work it had performed for the
Southland Corporation prior to the strike.44
Regarding the age of the trucks domiciled in the Mar-
tinez terminal in 1979, prior to July 1, the record reveals
the following: Of the 11 trucks there during January
through March, one was a 1969 model, one was a 1971
model, one was a 1972 model, two were 1978 models,
and the remainder were 1974 models. The two 1978
a The decision to transfer work to the Sacramento terminal was not
made until August 28 But when the strike ended on August 13 Respond-
ent was seriously considering whether to transfer this work and, because
of this, elected to continue having its Sacramento area customers use
common carriers rather than the Martinez terminal drivers to deliver the
product they purchased from Respondent Rather than having the Mar-
tinez terminal drivers resume doing the Sacramento area work for only 2
or 3 weeks and then abruptly have it taken away from them if Respond-
ent decided to transfer it to a Sacramento facility, thereb exacerbating
an already sensitive situation, Henry Armour testified, Respondent decid-
ed to continue the status quo and use common carriers in the Sacramento
area until a final decision was reached.
44 I credit the testimony of Henry Armour and Terminal Manager
Dennis Berg that before the strike Respondent performed a substantial
amount of common carrier work for the Southland Corporation and
credit Armour's further testimony that Southland at the end of the strike
elected not to resume using Respondent as a common carrier I have re-
jected the testimony of employee Honegger to the extent that it contra-
diets Armour's and Berg's becaus, they timpressed ne as more credible
witiesses, and their teinony is not i herently implausible
models were trucks with cummins engines. In April 1979
Respondent transferred all of its cummins engine trucks
to the Martinez terminal. The result was that in June all
but 2 of the 11 operable trucks at the Martinez terminal
were cummins engine trucks. The two trucks which did
not have cummins engines were 1974 and 1975 models.
Of the nine trucks with cummins engines six were 1978's,
one was a 1975, and two were 1974's.45 In 1979 prior to
the transfer of all of Respondent's cummins engine trucks
to the Martinez terminal the average age of the operable
trucks at that terminal was approximately 1973.
The circumstances surrounding the transfer of all the
cummins engine trucks to the Martinez terminal are as
follows. Before April 1979 the trucks with cummins en-
gines were assigned to different terminals, two to a ter-
minal. In March Respondent decided that it would make
better business sense to move all of these trucks to one
terminal, the Martinez terminal, because this would
enable Respondent's in-house mechanics who did minor
maintenance work to specialize on these engines and
become more proficient in servicing them. But more im-
portant it would enable Respondent, as a large customer,
to get faster service from the outside vendor that per-
formed major maintenance work on these engines. Re-
spondent chose the Martinez terminal as the one where
all of the trucks with cummins engines would be placed.
The result was that all of these trucks were transferred
to Martinez and the trucks which they replaced were
transferred to other terminals.
The transfer of all the cummins engine trucks to one
facility, Martinez, did not work out satisfactorily because
the outside vendor that services cummins engines in
northern California failed to provide Respondent with
expeditious repair service. So, in May, Henry and Bryam
Armour entered into negotiations with the outside
vendor which services cummins engines in Los Angeles,
California. This company assured the Armours of better
service than Respondent was receiving in northern Cali-
fornia. The Armours took no action with respect to
transferring its cummins engine trucks to Los Angeles
from Martinez inasmuch as the Armours thoughts at that
time were devoted solely to the several separate contract
negotiations then taking place which involved their ter-
minals. Their attention once again focused on the cum-
mins engine trucks when at the end of the strike the Ar-
mours concluded, for the reasons set forth supra, that be-
cause there was less work for the Martinez drivers than
prior to the strike that it would only be necessary to do-
micile 6 rather than 11 trucks at the Martinez terminal.
In view of the fact that Respondent still wanted to domi-
cile all of its cummins engine trucks at one terminal and
that this now would not be possible at the Martinez ter-
minal and since Respondent had heen assured that it
would receive better outside maintenance service from
the cummins engine dealership in Los Angeles than it
had been receiving in northern California, Henry
Armour testified, Respondent did not return any of the
cummins engine trucks to the Martinez terminal but
placed other trucks there instead and placed all of the
4 Ithere .as al-, a 1973 cunmins engine truck ,S lch wras not oper-
ahFtI dulring the period rclc,.as l to thi, caec
1 121
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cummins engine trucks in its Paramount, California, ter-
minal which was located in the Los Angeles area.
The model years for the 6 trucks assigned to the Mar-
tinez terminal when the strike ended, which includes the
truck which was placed in San Jose, are as follows: one
1972;46 one 1974; and four 1975 trucks.
On the subject of the difference between the truck
placed at the Martinez terminal after the strike and the
trucks with cummins engines which they replaced and
the effects on the employees' working conditions, the un-
denied and uncontradicted testimony of drivers Crews,
Cline, Greene, Maxwell, and Love is as follows.
Crews is one of the more senior drivers and as such
was assigned one of the 1978 cummins engine trucks
prior to the strike. He was assigned one of the 1975
trucks after the strike.47 He testified that the 1978 truck
was "much more comfortable," had more power, and
more modern gadgets than the 1975 truck and that be-
cause of the newer gadgets the 1978 truck was safer to
drive.
Cline is one of the more senior drivers and as such
was assigned one of the 1978 cummins engine trucks
prior to the strike. He was assigned the 1974 truck after
the strike. He testified that the 1978 truck was more
comfortable and easier to handle than the 1974 truck and
was a lot safer to drive than the 1974 truck because of
the various safety devices which were superior to the
safety devices on the older truck.
Greene, as one of the less senior drivers drove all of
the trucks prior to the strike. He testified that the three
older cummins engine trucks, the 1974 and 1975 models,
which were manufactured by Peterbilt, were of higher
quality insofar as safety and driver comfort than the
other trucks of a comparable age which he drove after
the strike.
Maxwell drove a 1978 cummins engine truck prior to
the strike. He drove all of the trucks after the strike. He
compared the cummins engine trucks with the trucks
which took their place after the strike in these terms:
"It's the difference of driving a Volkswagen and a Cadil-
lac." Specifically he testified the trucks assigned to the
drivers prior to the strike handled better, had more
power, and were quieter to drive than the trucks as-
signed to the drivers after the strike which he testified
were "rougher" and louder to drive and did not operate
as well due to the fact they had already been driven a
couple of million miles.
Love testified that the truck he was assigned to drive
after the strike gave a "rougher ride" and was a "little
noisier" than the truck assigned to him prior to the
strike. He also testified that the truck assigned to him
prior to the strike had nonskid paint whereas this type of
paint was not on the trucks he drove after the strike
making it dangerous for him to make deliveries when it
was raining.
4" The 1972 truck was a pump truck Respondent owns very few of
these type trucks and Henry Armour testified that it was the Company's
policy that one of the trucks assigned to its larger terminals such as the
Martinez terminal was a pump truck There is no evidence that prior to
the strike Respondent did not domicile such a truck at the Martinez ter-
minal
4 Respondelt's policy is to assign its more senior drivers the newer
trucks
2. Conclusions
a. Respondent's motivation
As described supra, when Respondent reopened the
Martinez terminal at the end of the strike it placed differ-
ent trucks there than were there prior to the strike. The
post-strike trucks when compared to the prestrike ones
were viewed by the drivers as less desirable because they
required more effort to drive, were less powerful and
noisier to drive, not as safe, and generally less comfort-
able. The General Counsel takes the position that Re-
spondent, in violation of Section 8(a)(1) and (3) of the
Act, assigned these less desirable trucks to the Martinez
terminal drivers in order to punish them for striking. In
support of this contention the General Counsel points to
the timing of the reassignment of the trucks, coming im-
mediately after the strike ended, and the statements made
by Acting Terminal Manager Rapoza in September to
the effect that the employees would not be assigned any
of the newer equipment they had formerly been assigned
until Union Representative Fleming, with whom Re-
spondent was unhappy, was replaced and employee
Crews, who Respondent felt had engaged in misconduct
during the strike, was disciplined. I am not persuaded by
the General Counsel's argument.4 8
Rapoza's conduct violated the Act and provides an in-
ference that Respondent was antagonistic toward Flem-
ing on account of his aggressive bargaining on behalf of
the employees during the recent contract negotiations
and toward Crews because it mistakenly thought he en-
gaged in misconduct during the strike and that Respond-
ent was attempting to exert pressure on the employees to
secure Fleming's removal and Crews' termination. But to
draw the further inference from Rapoza's statements that
Respondent was antagonistic toward the employees be-
cause they supported Fleming's bargaining position by
striking would be unwarranted. Rapoza's statements only
indicate that Respondent was mad at Fleming and
Crews, not the employees in general. Nor does the
record otherwise contain extrinsic evidence which would
warrant the conclusion that Respondent was hostile
toward the employees for striking.
Regarding Respondent's decision which resulted in the
Martinez terminal drivers being assigned less desirable
trucks and the timing of this decision, the record, as de-
scribed in detail supra, establishes that the reason for that
decision and its timing was based on legitimate business
considerations. Respondent at the end of the strike was
required to reduce the number of trucks at its Martinez
terminal from 11 to 6 because business no longer war-
ranted the larger number. Thus, Respondent was no
longer able to keep all of the cummins engine trucks in
the Martinez terminal. If it placed less than all of these
I' The General Counsel also argues that Respondent's failure to assign
to the Martinez terminal any of its newer trucks to replace the trucks
with cummins engines was contrary to its policy of assigning newer
trucks to smaller terminals. This argument is not supported by the record
which reveals that Respondent's policy of placing its newer equipment in
small terminals refers to terminals such as Phoenix, Las Vegas, Spokane,
Seattle. Portland and Sacramento where Respondent only has one to
three trucks, and not to a terminal the size of Martinez which the record
shows has hetwceen six and seven trucks
1122
ARMOUR OIL COMPANY
trucks in the Martinez terminal it would have violated
Respondent's policy of placing all of the cummins engine
trucks in the same terminal. These circumstances plus the
fact that Respondent was dissatisfied with the service
performed by the vendor who had maintained these
trucks in northern California and had secured a commit-
ment of better service from a vendor located in Los An-
geles, prompted Respondent to place all of the trucks
with cummins engines in the Paramount terminal which
is located near Los Angeles. 49 The trucks which Re-
spondent substituted for them in the Martinez terminal
were as new or newer than the trucks without cummins
engines which had been assigned to that terminal in 1979
prior to Respondent's policy of domiciling all trucks
with cummins engines in one terminal.5 0
In view of Respondent's legitimate reasons for not re-
turning any of its cummins engine trucks to the Martinez
terminal when the strike ended, the lack of evidence that
the trucks without cummins engines which were assigned
to the Martinez terminal drivers after the strike were in
general older than those noncummins engine trucks as-
signed prior to the strike, and the lack of evidence that
Respondent was hostile toward its employees for strik-
ing, I cannot say that the General Counsel has proven by
a clear preponderance of the evidence that Respondent,
as alleged in the complaint, "has provided inferior trucks
to employees and refused to return the trucks previously
used by the employees at the Martinez facility" because
of the employees' union activity. Therefore I shall rec-
ommend that this allegation be dismissed.
b. The refusal to bargain
The General Counsel argues that, regardless of Re-
spondent's motivation in substituting different trucks for
those the drivers were assigned immediately prior to the
strike, Respondent violated its collective-bargaining obli-
gation within the meaning of Section 8(a)(5) of the Act
by unilaterally replacing these trucks without affording
the Union, as the exclusive representative of the employ-
ees, advance notice and an opportunity to bargain with
respect to this decision and its effect upon the employ-
ees' working conditions.5
Essentially the question presented for decision is
whether Respondent's decision to substitute different
trucks for the ones assigned to the Martinez terminal
49 The aforesaid findings pertaining to Respondent's decision not to
return any of the trucks with cummins engines to the Martinez terminal
after the strike are based upon the testimony of Henry Armour who im-
pressed me as an honest and reliable witness and whose testimony was
not inherently incredible when viewed in the context of the record as a
whole.
50 In March 1979 there were eight trucks without cummins engines in
the Martinez terminal: one 1969; one 171; one 1972; five 1974. In August
and September there were six trucks assigned to the Martinez terminal:
one 1972; four 1975.
si The General Counsel does not appear to be contending Respondent
violated Sec. 8(aXS) by unilaterally reducing the number of trucks as-
signed to the Martinez terminal In any event I have considered this con-
tention in dismissing that portion of the complaint which alleges in sub-
stance that Respondent transferred work performed by the Martinez ter-
minal drivers to its terminal in Sacramento without affording the Union
an opportunity to bargain The necessary effect on the Martinez terminal
drivers of the transfer of work to Sacramento from Martinez was fewer
trucks to drive
drivers prior to the strike and the effect of this decision
upon the drivers' working conditions were mandatory
subjects of bargaining under the Act. The answer to this
question primarily involves the construction and applica-
tion of the phrase "terms and conditions of employment"
as used in Section 8(d) of the Act. The broad language
of that provision encompasses, at a minimum, all "issues
that settle an aspect of the relationship between the em-
ployer and employees." Allied Chemical & Alkali Work-
ers of America, Local Union o. I v. Pittsburgh Plate
Glass Co. Chemical Division. et al., 404 U.S 157, 178
(1971). While the sweep of Section 8(d) is not unlimited,
certainly "the various physical dimensions of [an employ-
ee's] working environment" constitute "terms and condi-
tions of employment." Fibreboard Paper Products Corp. v
N.L.R.B., 379 U.S. 203, 222 (1964) (Steward, J., concur-
ring). In the instant case the drivers spend virtually all
their working time in the cabs of their assigned trucks
driving them. Clearly the trucks' noise level and safety
equipment as well as the ease of handling the trucks
would all seem to be a part of the drivers' work environ-
ment and as such constitute conditions of the drivers'
employment.
As described in detail supra, Respondent's decision to
replace the trucks with cummins engines assigned to the
Martinez terminal drivers with different trucks affected
the drivers' working conditions because, when compared
with the trucks with cummins engines, the "new" trucks
were generally rougher to drive, noisier, more difficult
to handle, and lacked the newer safety equipment con-
tained in the trucks they replaced.5 2 As one of the driv-
ers, Maxwell, phrased it, the difference between driving
the trucks which were assigned to the drivers in place of
the cummins engine trucks was "the difference of driving
a Volkswagen and a Cadillac." I realize that three of the
ten cummins engine trucks assigned to the Martinez ter-
minal prior to the strike were 1974 and 1975 models,
however, it is undisputed that these three older models
provided a significantly better work environment than
the other newer noncummins engine trucks assigned to
the drivers after the strike. In this regard one of the driv-
ers, Greene, testified that these three older model cum-
mins engine trucks were superior in terms of riding qual-
ity and driver comfort than the trucks which replaced
them after the strike and further testified that when they
drove the cummins engine trucks, unlike the trucks
which replaced them, the drivers were able to perform
their work "without being beat to death."
The foregoing circumstances persuade me that Re-
spondent's decision to substitute different trucks for those
assigned to the Martinez terminal drivers prior to the
strike directly impinged upon the drivers' working con-
ditions and resulted in material, substantial, and signifi-
cant changes in the drivers' working conditions. In addi-
tion the record establishes that no capital investment or
disinvestment was undertaken by Respondent to imple-
ment its decision to transfer the trucks with cummins en-
52 During the 3 months immediately prior to the trike, approxim.ltely
80 percent of the trucks domiciled in the Martinez terminal uicr Iruck.
with cunnmiln engines whereas after the trike r nt on' uch truck a
assigned to that fcililv
11 3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gines out of the Martinez terminal and replace them with
different trucks. Nor does the record otherwise indicate
that requiring Respondent to bargain with the Union
over this decision and its effect on the unit employees
would significantly abridge Respondent's ability to
manage its business. It is for all of these reasons that I
am persuaded that Respondent's decision to remove the
trucks with cummins engines from the Martinez terminal
and assign the drivers different trucks and the effect of
that decision on the drivers' working conditions are man-
datory subjects of bargaining.
As I have found supra, Respondent did not give the
Union advance notice and an opportunity to bargain
about its decision to replace the more desirable trucks
with cummins engines with other less desirable trucks
and the effect of this decision on the drivers' working
conditions. Although the parties during the contract ne-
gotiations discussed the number of trucks which Re-
spondent intended to return to the Martinez terminal at
the end of the strike, there was no discussion about
whether Respondent would return the same trucks
which the drivers had driven prior to the strike or differ-
ent trucks. In fact, Respondent's president, Bryam
Armour, while visiting the Martinez terminal during the
strike assured the striking drivers that Respondent in-
tended to return the "same equipment" to the yard when
the strike ended as the drivers had driven prior to the
strike. Nor do the terms of the governing collective-bar-
gaining agreement permit Respondent to unilaterally
make a wholesale replacement of the trucks domiciled at
the Martinez terminal, thereby affecting the drivers'
working conditions. Respondent, in its post-hearing brief,
does not appear to contest any of the aforesaid findings;
rather it argues:
There can be no violation of a bargaining obligation
when Respondent in the post-strike period with re-
spect to the assignment of trucks at the Martinez fa-
cility followed a long established and continuously
applied policy and practice with respect to assign-
ing trucks that vested discretion in Respondent to
do so for business reasons.
Implicit in this argument is that Respondent on numer-
ous occasions in the past transferred trucks in and out of
the Martinez terminal without protest by the Union, thus
warranting the inference that during the time material
herein there existed an implied understanding between
the parties that Respondent could remove all of the
trucks from the Martinez terminal and replace them with
different trucks, regardless of the effect upon the drivers'
working conditions. It is, however, axiomatic that a pur-
ported waiver of the right to bargain about a mandatory
subject of bargaining to be effective must be clear and
unmistakable. See, e.g., Allen W. Bird II, Receiver for
Caravelle Boat Company, 227 NLRB 1355 (1977), and
cases cited therein. Thus, while findings of implied
agreements have been made in cases involving a consist-
ent course of unilateral conduct, cases involving only a
few unilateral changes in the past are, as the court indi-
cated in A'.L.R.B. v. Miller Brewing Company, 408 F.2d
12, 15 (9th Cir. 1969), not sufficient to warrant a finding
of waiver or implied agreement. See also Murphy Diesel
Company v. N.L.R.B., 454 F.2d 303, 307 (7th Cir. 1971);
General Telephone Co. of Florida v. N.L.R.B., 337 F.2d
452 (5th Cir. 1964). In the instant case the record reveals
that prior to the events material herein Respondent ooca-
sionally would substitute one truck for another at the
Martinez terminal during the period the Union represent-
ed the unit employees. Manifestly, the replacement of
one or two trucks at a time would not have had a signifi-
cant effect on the working conditions of the unit employ-
ees. This contrasts sharply with the wholesale replace-
ment of the trucks involved in the instant case which, as
found upra, substantially affected the unit's working
conditions. The only previous wholesale replacement of
trucks involving the Martinez terminal took place in
April 1979 when nine trucks were removed from the ter-
minal for the trucks with the cummins engines. By acqui-
escing in his isolated wholesale reassignment of trucks
which did not adversely affect the unit employees' work-
ing conditions, the Union did not waive its right to be
afforded the opportunity to bargain about the subsequent
wholesale reassignment of trucks which adversely affect-
ed the unit employees' working conditions. See N.L.R.B.
v. Miller Brewing Company, supra at 12, 15.
Based upon the foregoing I find that Respondent vio-
lated Section 8(a)(5) and (1) of the Act by unilaterally re-
placing the trucks driven by the Martinez terminal driv-
ers with different trucks without affording the Union, as
the employees' exclusive bargaining agent, advance
notice and an opportunity to bargain with respect to the
decision and its effect on the drivers' working conditions.
REMEDY
Having found that Respondent violated Section 8(a)(5)
and (I) by unilaterally transferring unit work from its
Martinez, California, terminal to a facility in San Jose,
California, which resulted in the loss of work and earn-
ings to the unit employees employed at the Martinez ter-
minal and a greater daily work commute for the drivers
assigned to drive the trucks domiciled in San Jose, I shall
order Respondent to cease and desist from transferring
unit work or from otherwise making unilateral changes
in employees' terms and conditions of employment with-
out consulting with their designated bargaining agent. In
order to insure that there is genuine bargaining over its
decision to transfer the aforesaid work and the effects of
this decision upon the unit employees, I shall order Re-
spondent to restore the status quo ante by restoring to the
unit employees employed at the Martinez terminal the
work which it transferred to its San Jose facility, and to
fulfill its statutory duty to bargain. I shall further order
Respondent to compensate the unit employees for any
loss of earnings or expenses incurred in commuting to
work in San Jose which they may have suffered by
reason of Respondent's unlawful refusal to bargain
herein. Compensation shall carry interest to be computed
in the manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977). See, generally, Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962).
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally replacing the cummins
1124
ARMOUR OIL COMPANY
engine trucks driven by the unit employees with different
trucks without affording the Union advance notice and
an opportunity to bargain about the decision and its
effect upon the employees' working conditions, I shall
order Respondent to cease and desist from engaging in
this conduct. In order to insure that there is genuine bar-
gaining over this decision and the effects of the decision
upon the unit employees' working conditions, I shall
order Respondent to restore the status quo ante by trans-
ferring back to the Martinez terminal sufficient cummins
engine trucks so there will be the same proportion of
these trucks to trucks without cummins engines as exist-
ed in June 1979, immediately prior to the strike, and to
fulfill its statutory duty to bargain. I specifically note
that inasmuch as Respondent's conduct in reducing the
absolute number of trucks domiciled in the Martinez ter-
minal after the strike was not unlawfully motivated or in
derogation of its statutory duty to bargain, the remedy
herein does not require Respondent to return all the
cummins engine trucks to the Martinez terminal, but just
a sufficient number so as to recreate the same numerical
ratio between cummins and noncummins engine trucks as
existed in June 1979, immediately prior to the strike.
In fashioning the remedy herein, I have carefully con-
sidered whether it imposes a disproportionate burden on
Respondent in relation to the redress necessary to effec-
tuate the statutory policies. I can perceive no undue
hardship to Respondent by requiring it to transfer the
San Jose area work back to the unit employees employed
at the Martinez terminal inasmuch as the Martinez termi-
nal is still in existence, the affected employees are still
employed by Respondent, and the transfer of work will
not require Respondent to invest in additional equipment
but simply require the transferral of one truck and two
drivers back to the Martinez terminal from San Jose.
Also the record indicates that the only major expense in-
curred by Respondent in opening its San Jose facility
was renting a parking space for one truck. Likewise I
can perceive of no undue hardship for Respondent to
comply with that portion of the remedy herein requiring
it to return the cummins engine trucks to the Martinez
terminal inasmuch as Respondent still owns all of the
trucks involved.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All drivers employed by Respondent at its Martinez,
California, facility; excluding office clerical employees,
guards and supervisors as defined in the Act, constitute a
unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. By threatening to discharge an employee for engag-
ing in protected concerted activity, Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(l) of the Act.
5. By promising employees improved earnings and
working conditions if they replaced the union business
agent, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act.
6. By unilaterally transferring work performed by its
Martinez terminal drivers to drivers it employed in San
Jose, without affording the Union advance notice and an
opportunity to bargain about this decision and its effect
on the Martinez terminal drivers, Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
7. By unilaterally replacing the trucks assigned to its
Martinez terminal drivers with different trucks, without
affording the Union advance notice and an opportunity
to bargain about this decision and its effect upon the
Martinez terminal drivers, Respondelt has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
9. Respondent has not otherwise violated the Act.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDERs 3
The Respondent, Armour Oil Company, Martinez,
California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Teamsters Local 315, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, about a decision to transfer unit work and the
effects of such a decision on unit employees or about a
decision to replace the trucks assigned to the unit em-
ployees with other trucks and the effects of such a deci-
sion on the unit employees. The unit found to be appro-
priate for purposes of collective bargaining is:
All drivers employed by Respondent at its Mar-
tinez, California, facility; excluding office clerical
employees, guards and supervisors as defined in the
Act.
(b) Refusing to bargain collectively in good faith with
the above-named Union by unilaterally changing em-
ployees' terms and conditions of employment without af-
fording the Union an opportunity to bargain about the
changes.
(c) Promising employees improved earnings and work-
ing conditions if they replace their union business agent.
(d) Threatening to discharge employees for engaging
in protected concerted activity.
(e) In any like or related manner, interfering with, re-
straining or coercing employees in the exercise of rights
guaranteed in the Act.
"' In the event no exceptions are Filed as provided by Sec 10t2 46 of
the Rules and Regulations of the National abor Relations Board. the
findings, conclusions, and recommended Order herein shall, a prosvided
in Sec 02 48 of the Rules and Regulatiols. be adopted hb the Board and
become its finidings. conclusions, ad ()rder, and all ohbcl ion, therhi
shall be deemed ",alied for all purposes
I 11 25
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request by the above-named union, bargain
collectively with the Union with respect to the decision
to transfer to San Jose, California, area work from the
Martinez, California, terminal to San Jose, California;
bargain collectively with the Union about the effects on
the unit employees of this transfer; and, if an understand-
ing is reached thereon, reduce to writing and sign any
agreement reached as the result of such bargaining.
(b) Upon request by the above-named union, bargain
collectively with the Union about the decision to replace
the trucks domiciled in June 1979 in the Martinez, Cali-
fornia, terminal with different trucks; bargain collectively
with the Union about the effects on the unit employees
of this replacement; and, if an understanding is reached
thereon, reduce to writing and sign any agreement
reached as the result of such bargaining.
(c) Restore the San Jose, California, area work to the
unit employees employed in the Martinez, California, ter-
minal and make whole the unit employees for any loss of
earnings they may have suffered or additional commut-
ing expenses they may have incurred, in the manner set
forth in the section of this Decision entitled "Remedy."
(d) Return to the Martinez, California, terminal a suffi-
cient number of trucks with cummins engines so as to re-
create the same numerical ratio between cummins and
non-cummins engine trucks which existed in June 1979 in
this terminal.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order or to otherwise determine
whether this Order is being complied with.
(f) Post at its place of business at the Martinez, Cali-
fornia, terminal copies of the attached notice marked
"Appendix. "5 4 Copies of said notice, on forms provided
by the Regional Director for Region 32, after being duly
signed by Respondent's representative, shall be posted by
Respondent 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.
(g) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
54 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
1126