Bridwell Oil Co.

National Labor Relations Board - Board Decisions

Aug 20, 1968

172 N.L.R.B. 1635 (N.L.R.B. 1968)

BRIDWELL OIL COMPANY
Margaret Bowdle and Trustees of J. S . Bridwell
Estate , A. T. Junk , Clifford Tinsley and Herb
Storey d/b/a Bridwell Oil Company and Oil,
Chemical and Atomic Workers International
Union , AFL-CIO. Case 16-CA-3131
August 20, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On June 27, 1968, Trial Examiner Harold X.
Summers issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in certain unfair labor practices alleged in
the complaint and recommending dismissal of these
allegations, as set forth in the attached Trial Ex-
aminer's Decision. The Trial Examiner also found
that the Respondent had engaged in certain other
alleged unfair labor practices but that it took
adequate remedial action thereby making unneces-
sary the issuance of any order. Thereafter, the
General Counsel filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief, and the
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the complaint herein be, and it hereby
is, dismissed in its entirety.
' In affirming the Trial Examiner 's refusal to make inferences amounting
to a finding of a violation of the Act by the 1966 layoff, we note that those
events occurred more than 6 months prior to the filing of the instant charge
and thus predated the limitation period of Section 10(b) In addition, while
we agree with the Trial Examiner 's recommendation that the complaint be
dismissed in its entirety , we view the circumstances as highly suspicious,
but find that the General Counsel failed to sustain his burden of proof that
the Respondent 's motive for the 1967 discharges was unlawful
TRIAL EXAMINER'S DECISION
1635
HAROLD X. SUMMERS, Trial Examiner: In this
proceeding, the General Counsel of the National
Labor Relations Board (herein called the General
Counsel and the Board, respectively) issued a com-
plaint and amended complaint' alleging that Mar-
garet Bowdle and trustees of J. S. Bridwell Estate,
A. T. Junk, Clifford Tinsley and Herb Storey d/b/a
Bridwell Oil Company had engaged in and were en-
gaging in unfair labor practices within the meaning
of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended (the Act). The answer
to the complaint admitted some of its allegations
and denied others; in effect, it denied the commis-
sion of any unfair labor practices. Pursuant to
notice, a hearing was held before me at Wichita
Falls, Texas, on March 27, 1968. All parties were
afforded full opportunity to call and examine and
cross-examine witnesses, to argue orally, and
thereafter to submit briefs.
Upon the entire record' in the case, including my
evaluation of the reliability of the witnesses based
upon the evidence and my observation of their
demeanor, I make the following:
FINDINGS OF FACT
1. COMMERCE
In May 1966, Bridwell Oil Company (hereinafter
referred to as the Company) was being operated as
a partnership, the partners being J. S. Bridwell and
Margaret Bowdle, his daughter. During that month,
Bridwell died, and Junk, Tinsley, and Storey
became trustees of his estate; thereafter, the Com-
pany continued to be operated as a partnership,
with Junk, Tinsley, and Storey as trustees, standing
in the place of Bridwell. At all pertinent times, the
Company, with its principal office and place of
business at Wichita Falls, Texas, and branches at
Archer City and Abilene, Texas, has been engaged
in the business of producing oil, gas, and related
products. During the year ending February 12,
1968, in the course and conduct of its operations in
Texas, it shipped directly from its Texas installa-
tions to States of the United States other than the
State of Texas petroleum and related products
valued at in excess of $50,000.
The Company is an employer engaged in com-
merce within the meaning of the Act.
' The complaint was issued on December 29, 1967, and was amended on
February 12, 1967 The charge initiating the proceeding was filed on Oc-
tober 19, 1967, and amended on December 29, 1967
t
On or about April 18, 1968, the General Counsel filed a motion to cor-
rect the transcript of the hearing No opposition was received The motion
is granted Also, on my own motion, I make the following additional cor-
rections p 28, 1 14, substitute "not busy" for "busy", p 128, 1 5, sub-
stitute "difference" for "hours", p 130, L 2, substitute "do you imply" for
"does he implicate", and p 220, t 3, substitute a comma for the period
and add" Mr Harris "
172 NLRB No. 179
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. THE UNION
The charging party, Oil, Chemical and Atomic
Workers International Union, AFL-CIO
(hereinafter , the Union), is a labor organization
within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting-The Issues
The Union launched an organizing drive among
the employees of the Company in November 1966.
On November 26 of that year, the Company ter-
minated the employment of five individuals, a cir-
cumstance which was the occasion for the filing of
an unfair labor practice charge with the Board. Be-
fore any action could be taken on the charge, an
agreement was reached between the Company and
the Union whereunder the Company offered reem-
ployment to the five discharged employees and the
Union withdrew its unfair labor practice charge.
On January 17, 1967, pursuant to a consent-elec-
tion agreement entered into by the parties in a
Board representation proceeding, an election was
conducted by a Regional Director of the Board
among the approximately 56 employees in a bar-
gaining unit consisting of those of the Company's
production and maintenance employees in the
northern Texas and southern Oklahoma area at the
Wichita Falls, Archer City, Nocona, and Cottle
County districts. Having received a majority of the
valid votes cast, the Union was certified by the
Board as exclusive bargaining agent of these em-
ployees on March 3, 1967. Thereafter, the Com-
pany and the Union met in negotiations six or seven
times, the last of which meetings occurred on Sep-
tember 25, 1967. On that date, agreement on a col-
lective-bargaining contract was tentatively reached,
but, subsequently, the union membership rejected
the agreement.
Just before the rejection of the agreement, com-
pany employees S. M. Tomkins and W. G. Moore
were laid off, respectively, on September 10 and
27, 1967, allegedly because they had joined and
assisted the Union or engaged in other union or
concerted activities for the purpose of collective
bargaining or mutual aid or protection; and, al-
legedly, the Company, through General Superinten-
dent (and Trustee) A. T. Junk, on or about Oc-
tober 5, 1967, promulgated and discriminately en-
forced a rule prohibiting employees from soliciting
union membership or support on company property
during employees' nonworking time and threatened
The parties herein were at odds as to whether the employees were
"discharged" or "laid off " In view of the circumstances surrounding the
action-for example, one of the individuals involved was told that, while
there was no hurry, he must vacate the company house in which he lived,
also, there was a sharp contrast with the circumstances of the admitted
"layoff" of September 1967-see infra- at which time the affected in-
dividuals were told that they were being laid off "until some suitable job
should become open "- I find this personnel action to have been tan-
an employee with discharge or other reprisals if he
became or remained a member of the Union or if
he gave it any assistance or support. The circum-
stances surrounding these allegations-discussed in
detail infra-frame the issues in this case.
B. The Layoff of November 1966
(What follows is not herein alleged by the
General Counsel to constitute an unfair labor prac-
tice . Testimony as to the surrounding circum-
stances was offered , and was received , for the bear-
ing which the incident might have on the alleged
violations of the Act which are at issue herein-to
demonstrate the presence or absence of animus
against the Union and to show the extent , if any, of
the Company 's knowledge as to the union activities
of its employees.)
As noted earlier , the Union launched an organiz-
ing drive among the employees of the Company in
November 1966. It procured, on cards authorizing
it to act as their bargaining agent , the signatures of
a number of employees , including those of S. M.
Tomkins and W. G. Moore , " pumpers " employed
by the Company.
On November 21, Tomkins and Moore, along
with the Company 's other pumpers , each received a
10-cent -per-hour wage increase.
On or about November 26, the employment of
Tomkins , Moore , and three nonpumper employees
was terminated , this being the first layoff among the
Company's employees in at least 16 years .' All five
employees had signed union authorization cards.
The reason for the layoff given at the time to
Tomkins and Moore-and, perhaps , to the other in-
volved employees , none of whom testified herein-
was that the Company's production had fallen and
that the output of the oil leases was not justifying
the use of full-time pumpers . In point of fact,
production records at the hearing indicate, and I
find, that production had fallen substantially
between March and October 1966 .4 There was no
indication that the quality of the performance of
any of the employees laid off was a factor in his
being selected for layoff.
(At the time he was told of his layoff, Moore re-
minded the supervisor who was conveying the news
that he had more seniority than anyone in his com-
pany district except for one who had just trans-
ferred in as a pumper ; he asked why he was being
laid off instead of an employee hired in June. The
supervisor-Connie Watson-pointed out that,
when young mules and old mules were available to
do work, and where seniority was not used as a fac-
tamount to a discharge or permanent layoff I find incredible Junk's
testimony to the effect that, had the employees involved asked why they
were being laid off and had they " talked it over " they would not have been
laid off at all
' Production in the Nocona (Texas) district for the year 1966, in barrels
of oil produced per day, was as follows January, 211 , February, 232,
March , 286, April, 270, May, 278, June , 243, July, 229, August, 227, Sep-
tember, 210 , October, 200, November , 202, and December, 193
BRIDWELL OIL COMPANY 1637
tor,s the Company was going to keep the young
mules . When Moore asked Watson to "admit" that
he was being laid off because of the Union , Watson
denied the accusation.)
The Union forthwith filed a charge with the
Board , calling the discharges unlawful.
On the day following the discharges ( on Sunday,
November 27), James Childs, union representative,
called a meeting of the Company's employees.
There he announced that he had the signatures of a
majority of the employees on authorization cards
and that he intended to approach the Company
next day.
Childs did visit the company headquarters next
day but General Superintendent Junk was out. He
returned the following day, at which time they did
meet . There, Junk and counsel for the Company
came to an agreement with Childs : the five men
who had been laid off would be employed by the
Company ( but not necessarily at their old jobs/loca-
tions),' and the unfair labor practice charge filed by
the Union would be withdrawn.
That night , the five men were told to report for
work next morning . As far as this record reveals,
they did go to work next morning , except that Tom-
kins, after a few hours on a job , was sent home until
work could be found for him; it was found 4 or 5
days later.
C. Tomkins' September 1967 Layoff
S. M. Tomkins had been hired by the Company
on July 22, 1957, as a roustabout in the Nocona
district of the Company.
(A roustabout is, in effect , a common laborer
who, working out of one of the Company's district
yards or warehouses , services wells or other com-
pany properties. He digs ditches, cleans out cattle
guards, sets concrete forms, "pulls " rods or tubings
at well sites, assembles and maintains pipelines, and
performs other manual labor as assigned . During
the period pertinent herein , he normally worked a
5- or 6 -day week of 48 hours.)
During Tomkins ' second year of employment
with the Company, he became a pumper.
(A pumper , assigned to a specific group-in
some cases , more than one group-of wells, main-
tains the engines , jacks, instruments , and connect-
ing lines at those wells-calling, where necessary,
for the help of roustabouts ; and, as representative
of the Company, he sells oil to pipeline companies
at his respective well sites, maintaining sales
records and transmitting them to the Company.
(The pumper normally occupies a company
house- for which he pays a nominal rental of $10
per month-on the well property. On "emergency
alert" 7 days a week and 24 hours a day, he makes
the rounds of the wells within his responsibility
every day of the week, and he works from 50 to 54
hours per week. For the past few years, the require-
ments of the Fair Labor Standards Act have dic-
tated that his employment be governed by a so-
called BELO contract between him and the Com-
pany which specifies, in addition to his (nonover-
time ) pay per hour, a weekly total of hours for
which he is assured work, and which specifies that
for any hours worked over 40 per week, he shall
receive overtime rates of pay.
(A pumper's hourly pay is usually somewhat
lower than that of a roustabout, but he works more
hours per week and his overall earnings are higher.)
From 1953 until November 26, 1966, Tomkins
worked as a pumper on the so-called Tucker
Lease,' situated in the Nocona district. At first, he
occupied a company house on the lease until it fell
into a state of such disrepair that, by mutual agree-
ment between him and General Superintendent
Junk, he was given permission to live off his lease in
his own home at Spanish Fort, Texas, "as long as
you do your work " In June 1966, he moved to
Spanish Fort and, thereafter, commuted daily to
and from the Tucker Lease.'
As noted earlier, Tomkins was one of those
discharged on November 26, 1966. One of the
terms of the "settlement agreement" between the
Company and the Union, executed 3 days later,
called for him to be offered a position as pumper at
the Company's Archer City district, on what will
herein be referred to as the East Jackson Lease,
"with the privilege of occupying a vacant lease
house if he desires." On November 30 the Com-
pany formalized its offer, stating that "we will pay
the expense of moving you to this new job." Tom-
kins made a timely acceptance of the offer but told
Junk, in response to the latter's inquiry as to
whether he was going to move onto the lease, that
he had no such intention at this time because he did
not want to make his son change high schools and
thereby lose part or all of a year's academic credit.
Tomkins went to work on the East Jackson Lease
on December 5 or 6, 1966. For the next 9 months,
he commuted daily (7 days per week) between the
lease and his home at Spanish Fort, a distance of 80
miles each way over paved roads. During this
period, I find, he received no complaints about his
work; in accordance with Junk's testimony herein, I
find that Tomkins was considered a good employee
and a hard worker. Also-a factor most directly re-
lated to subsequent events-I find that the per-
5 On this record , I do find that seniority was neither a controlling nor a
weightly factor in the Company 's operation
B There is testimony in this record, and I find , that the five men involved
were never replaced on their "old jobs" by other individuals to the day
' The Company 's wells are located on the properties of others , at which
the oil rights have been purchased The cluster of wells on each such pro-
perty is called a lease , and the lease (or leases ) assigned to each pumper is
normally known by the name of the lessor (or one of the lessors)
" The Company sold him what was left of the old Tucker Lease house He
moved it and used parts of it to enlarge his Spanish Fort home
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formance level of his work did not suffer by vii Luc,
of Tomkins' living off his lease.'
In mid-August ( 1967), Marvin Hoff" drove up to
the East Jackson Lease. He said that Junk had been
making inquiries as to Tomkins' working hours and,
having ascertained that Tomkins had not yet moved
on the lease, had asked Hoff if Tomkins intended to
make the move. A day or two later, Hoff returned
with a message from Junk: Tomkins must either
move onto the lease or give up his job. Tomkins
said he was willing to move into the nearby West
Jackson house" but he would not live in the East
Jackson house unless changes were made which
would render it suitable for his family to live in it.
One or two more days passed. Hoff came with a
message: "Mr. Junk told me to tell you that you
either have to move into that East Jackson house or
give up your job." Tomkins' answer was that he
would not live in a house "like that" nor would he
give up his job. He asked if he was being fired, at
which Hoff said, "Oh, hell no. I'm not firing you.
I'm not going to.... If they send me out to fire you,
I'll just go with you."
At or about this time, the carpenter who had
been renovating the West Jackson house was taken
to the East Jackson house by Company Supervisor
Doyle Moore. In Tomkins' presence, Moore told
the carpenter to do some painting, to lay linoleum
in the kitchen and bathroom, and to install a screen
door on the back porch. Tomkins spoke up,
"Doyle, if you're [doing this] for me, there's not any
use. I won't move into the house like it is." Moore
asked what Tomkins wanted done, and Tomkins
told him what, in his opinion, was wrong with the
house: the kitchen was so narrow that one had to
stand alongside the stove while cooking, there was
no room for a refrigerator, and there was in-
adequate cabinet and drawer space; the (second)
bedroom was so small that a bed would partially
obstruct the doorway, and the bathroom, little
wider than a bathtub, did not lend itself to practical
use. He suggested combining the present kitchen
and bathroom into a usable kitchen and converting
the small bedroom into a bathroom. Then, he said,
the room previously untilized as a dining room (and
as the repository of the refregerator) could be used
as a bedroom. Moore's expressed reaction was that,
if that was what Tomkins wanted, he might as well
send the carpenter away-the house wasn't worth
the cost of all that work-and he suited the action
to the word after some paint had been applied, a
door and screen door put in, and a new linoleum-
covered bathroom floor installed.
During this period, at one of the negotiating
meetings with company representatives, the Union
raised the subject of Tomkins' dissatisfaction with
me nouse into which he was being asked to move.
Junk's response was that the house was "clean and
livable, in accordance with Company policy."
On Tuesday or Wednesday, September 4 or 5,
Company Supervisor Connie Watson appeared in
the vicinity of Tomkins' workplace. After speaking
to the pumper who had recently taken over West
Jackson, he visited with Tomkins. He asked what
had been done to the house and Tomkins told him.
Inspecting the house, he commented, "It looks
pretty nice doesn't it?" Tomkins agreed but said he
had never objected to the looks of the house; the
"way it's arranged ... it's not suitable for me at
all." Watson asked if he would move into it as it
was and Tomkins again said he would not-he
wanted some changes.
Under date of September 6, the Company sent
Tomkins a letter:
Mr. Watson advised me last evening that you
again refused to move to the pumping job on
the Jackson Lease.
Since we transferred you to this job last
December, you have repeatedly refused to
move, first that you did not want to take your
boy out of school, then when summer came
you did not want to move into the house. The
house is clean and livable, as we try to keep all
lease houses, but we can't remodel it to suit
everyone's requirements.
You are now driving approximately 150 miles
a day to your job, and that is just too much
hazard for your company and yourself; also,
this lease is now a two-man job, and to leave
all the responsibility on the one man living
there is just not right. Considering all this, this
letter will serve to notify you that if you still
feel that you do not want to move your family
to this lease, effective Monday, September 11,
1967, you will go on lay-off, without pay, until
such time that a job is available that suits you
and your company.
Best regards
/s/ A. T. Junk
A. T. Junk
GEN. SUPT.
Tomkins sent a reply, stating that there were
several things about the matter which he did not
understand that he would like to discuss with Junk.
Also, during the ensuing few days he stopped twice
' The distance between his home and his lease was brought out on cross-
examination of Tomkins On redirect examination , he credibly testified
that the pumper on a neighboring lease, West Jackson, had never had to do
work at East Jackson because of Tomkins ' not being present , on the con-
trary, Tomkins, on several occasions, had spotted leaks in West Jackson
lines, had closed the necessary valves, and had helped the West Jackson
pumper repair the damage
Stipulated to be a supervisor in the Archer City district
At this time, the West Jackson Lease was " between pumpers"- it was
being pumped by a roustabout who lived off- lease-and the house was
unoccupied and undergoing renovations
BRIDWELL OIL COMPANY 1639
at the Company's main office at Wichita Falls; Junk
was away, however, and, although Tomkins left
word of his visits, he never did establish contact.12
Meanwhile, he continued to commute to the East
Jackson Lease and to perform his regular chores
there. On Monday morning, September 11, after he
had serviced his first well, Doyle Moore drove up.
Moore asked if Tomkins had not received Junk's
letter. Tomkins said he had but that he had been
trying to see Junk "to see what the deal was."
Moore said that he had to "go by the letter"-as far
as he was concerned, Tomkins was on layoff status.
Thereupon, Tomkins removed any company tools
from his truck and went home.13
D. Moore's September 1967 Layoff
W. G. Moore had become a pumper for the
Company upon his being hired July 15, 1950. From
this date until the fall of 1966, he worked on three
neighboring leases (the whole referred to at the
hearing as the Dennis job) in the Company's
Nocona district, occupying a company house on
one of them.
Moore was caught in the five-men layoff of
November 26, 1966. Like the others, he had signed
a union authorization card on November 19; also,
he had (unsuccessfully) solicited the signatures on
such cards of Nocona district roustabouts John Es-
selton and Mike Selman . He is the one who-see
supra-was involved in the conversation about
"young mules and old mules" and the one who, at
the time, charged that union affiliation was in-
volved in his selection for layoff.
Under the "settlement agreement" of November
29, Moore was reinstated as an employee of the
Company-specifically, as a roustabout in the
Nocona district at the same hourly pay he had
received as a pumper.'4 He reported for duty on the
30th and, thereafter, worked with a supervisor and
two other roustabouts throughout the district.
(In its "economy drive" in the latter part of
1966, the Company had electrified the well motors
on Moore's old leases. Now, the work was lighter
and could be performed on a less-than-full-time ba-
sis. After Moore became a roustabout, the pumping
function on the Dennis job was performed by one
of the two roustabouts who worked with him.)
Moore worked as a roustabout for the next 10
months. During this period, he received no com-
plaints about his performance. Although the work
was arduous and although he was in his 61st year,
there is no indication that he carried less than his
full share of the roustabout load; the available
evidence, which I credit, is to the contrary.15
(The significance of Moore's age is twofold. I cite
it, first, for whatever bearing it may have upon his
physical capacity to discharge his responsibilities as
an employee of the Company and/or the Com-
pany's evaluation of his worth as an employee.
Secondly-for whatever it means-I find that
Moore had, on a number of occasions, mentioned
to supervisors his desire to remain with the Com-
pany only until he became eligible for social securi-
ty benefits on his 62d birthday in October 1968: he
mentioned it at the time of his 1966 layoff and he
mentioned it frequently during his 10 months' em-
ployment as a roustabout in 1966-67.)
On or about September 21, 1967, he received a
letter from Junk dated the 20th:
If you recall, when we shut your pumping job
down on the Dennis we gave you an opportuni-
ty to roustabout as long as we needed an extra
roustabout in that area or until a pumping job
somewhere would be available We have a
pumping job open down on our Snider Lease,
which is near the little town of Markley, and
this job consists of looking after the Snider
Lease, where the house is located and the one
well on the Prideaux with a water plant and a
few wells that we have on our Hill Lease and
Hoefle Lease near Antelope.
We are faced with the situation of too many
roustabouts at the present time at Nocona so
we thought it best that we transfer you to this
pumping job at Markley and perhaps could get
things straightened out at both places. This job
pays on a BELO contract of 50 hours per week
at $1.80 and would give you a $50.00 a month
car allowance for driving to the Hill Lease.
We would like to make this change at the earli-
est possible time as we have had a contract
pumper on this lease for some time while the
house was being repaired, but I believe
everything is in shape now to get a pumper liv-
ing on this lease . I wish you would take a look
at this lease and let me know just when you
think you could move.
Upon receipt of the letter, Moore made arrange-
ments with Supervisor Watson for the'two of them
to look over the properties in question16 on the fol-
lowing Monday. Meanwhile, on Sunday, Moore and
his wife made a preliminary survey. Driving up to
the job- it was about 85 miles from Nocona-they
inspected the lease house and a portion of the wells
to be serviced. So far as this record reveals, they
"Junk testified that he received no messages from Tomkins While I purchased it, and moved there from the company house
credit Tomkins, I do not discredit Junk in this respect The two versions are "Moore testified that he did more than his share I do not credit
not necessarily inconsistent testimony that his roustabout supervisor ( one Sterling ) often told Junk that
13 He was replaced by a newly hired pumper, one Eustes Moore was not able to do roustabout work, in the absence of testimony by
14 The agreement also provided that he be permitted to occupy the lease Sterling.
house he had occupied as a pumper But , within 48 hours of the layoff of 11 Hereinafter referred to as the Snider job, after one of the leases in-
November 26, he had located a house in Nocona to his liking, had volved
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
saw no relevant defects in the house, but Moore
considered the area to be "Godforesaken country";
while bread and milk were available at a "jerk leg"
store in the vicinity, the nearest town was 25 miles
away. Also, their inspection was slowed by rough
roads on the property and by creeks which crossed
the roadways-at one such crossing they were
required to take an alternate route. That night,
Moore consulted with Harold Howard, who had
pumped these leases some time earlier , and he was
advised that: (1) Howard had kept a horse for rainy
weather and (2) one could not, on foot, cover all
the involved leases in 1 day.
Next day (Monday, the 26th), Moore and Wat-
son covered the leases in the latter's car. The day
was a dry one, and no detours were necessary, from
lease house back to lease house, they covered 50
miles . (Also-Moore believed-flooding would in-
crease the distance to 70 miles on occasion.) That
night , Moore called Junk. He commented on the in-
adequacy of the $50 auto allowance and on the
conditions of the roads." Junk said the Company
was prepared to pay no more and that past ex-
perience had shown that the roads were passable
and he concluded, "Well, now, the job is out there.
If you want it, all right. If you don't, I'll get some-
body that does."
Next day, Junk wrote to Moore:
Confirming our telephone conversation last
night, as I was asleep when you called and I am
not too sure just what you decided to do, but I
understood that you would not want the job
that was offered you on the Snider. I regret
hearing this because I think that is a job that
you should have considered taking, for several
reasons, and one is that it is a very light job
and a man of your age just hasn't got any busi-
ness trying this roustabouting even if there was
a roustabout job open.
Of course there are always certain drawbacks
to any job but there's a lot of changes that's in
favor of this job. You considered the transpor-
tation allowance as inadequate for the handling
of the Hill Lease, but after you consider the
miles that you are presently traveling to get to
the job and the fact that the job would pay
more per week than you are now getting the
indications are that you just don't want the job;
but it seems to me that the transportation al-
lowed you for one trip a day to the Hill Lease
is adequate for the conditions of this job now.
If I have understood you right, then you do not
want the job, and since it is necessary that we
cut down manpower at Nocona we will just
have to put you on lay-off without pay until
such time as a job can be found that would be
suitable for you and your company. If you
"These were the only objections he voiced, although, in addition, he
considered the Snider job, because of its setting, to be the Company's
should change your mind after receiving this
letter, or if I have misinterpreted your decision,
let me know right away; otherwise, we are
going to make other arrangements regarding
the Snider Lease.
Junk confirmed the action when Moore next re-
ported at his old workplace: "You are no further
employed in the Nocona area. If you don't take this
[Snider] job, we have no other place for you until
something else comes up that would be suitable for
you."
E. The Offer of Reemployment to Tomkins
On or about September 29, 1967-having last
worked for the Company 18 days earlier-S. M.
Tomkins received a letter from Junk:
September 28, 1967
Dear Mr. Tomkins:
On September 6th we advised you by letter
that inasmuch as you did not want the pumping
job which we offered you that you would be
put on lay-off without pay until such time as a
job would be suitable.
We now have open another pumping job
which, even though you are a shallow well
pumper, we believe you can handle, as these
wells are only 3600 feet and we believe you
could handle it. It is a light job and consists of
our Snider Lease and Prideaux "C" Lease and
our Hill and Hoefle Leases. The Snider Lease
has a lease house on it and we feel it is in good
shape. If you care to look this job over, Mr.
Watson could meet you any time and go over it
with you.
This job will pay you on a BELO contract of
50 hours per week at $1.80 an hour and carries
with it a $50.00 a month car allowance to help
compensate for driving once a day to the Hill
Lease, as you would be required to drive only
once a day to this lease, and should the occa-
sion arise where two trips would be necessary
we would arrange for compensation to you for
this additional driving.
If you care to look at this, contact Mr. Watson,
and if we don't hear from you by the 2nd of
October we will consider that you are not in-
terested.
Yours very truly
/s/ A. T. Junk
A. T. JUNK
"worst" group of leases
BRIDWELL OIL COMPANY 1641
Thus, he was being offered the same job which
Moore had just rejected.19
On Sunday, October 1, pursuant to arrangements
made by Tomkins on receipt of the letter, he, his
wife and son, and Supervisor Watson went to the
Snider job, a distance of 125 to 130 miles from
Spanish Fort. While Mrs. Tomkins and the boy
stayed at the lease house, Tomkins and Watson
made the rounds of the wells on the several leases.
They ascertained-as Moore had previously ascer-
tained-that the trip covered 50 miles. Expressing
the opinion that the job would involve at least
1,500 miles of driving per month, and that "real
care" of the wells would probably involve 2,000,
Tomkins told Watson he did not think one could
operate a pickup truck for the mileage allowance,
and he asked if Watson thought the Company
would pay $100. Watson replied that the Company
had never paid more than $50, and he was sure
they would not at this time. At this, Tomkins said
he would not take the job unless the mileage al-
lowance or the number of hours (guaranteed per
week) were increased.
(Subsequently, the Snider job was given to a
newly hired pumper.)
To the extent it may have relevance, I find that
the $50 auto allowance on the Snider job offered to
Moore and to Tomkins was the same as that paid to
other pumpers who worked that job both before
and after.
F. Independent Interference, Restraint, or
Coercion-Other Union Animus
During the Union's organizing campaign in
November 1966, one of the authorization card
signers had been Glen Sanders, one of the Com-
pany's pumpers. Shortly before the representation
election held in January 1967, General Superinten-
dent Junk had a conversation with Sanders at
Archer City. Without making any threats or
promises, Junk made it clear to Sanders that he
"wasn't in favor of the Union" and that he thought
the best interests of the employees, and of the
Company, were not served by the advent of a union
as bargaining representative.
Subsequently, Sanders was elected chairman of
the Union's negotiating committee, in which
capacity he attended the negotiating meetings with
company representatives.
As noted earlier, the meeting of September 25,
1967, culminated in a tentative collective-bargain-
ing agreement. A union membership meeting, for
acceptance or rejection of the agreement, was set
for the night of October 5, and letters of notifica-
tion were sent to the members. Sanders, who, at
that time, was working on the West Jackson
Lease,'9 had received the notice of the meeting but,
because of a turnover among employees, he was
unsure that all other union members had been sent
one; he decided, therefore, to pass the word to a
fellow union member, one Boyd, who was a pumper
at the Henley Lease, 6 or 7 miles from West
Jackson.
Arriving at the Henley Lease between 3 and 4
p.m. on the 5th, he reminded Boyd of the meeting
that night. Boyd said he was aware of it-he had
received the Union's notice. At that point, Junk
drove up. On seeing Sanders, he became angered.
"Glen," he said, "We're not going to put up with
this." Asked what he meant, he specified, "Being
off over here on your regular working hours."
"I've never been told that before," Sanders
protested.
ti Junk ignored the remark. "I know what you're
here for, and you're going to be in trouble being off
the job during regular working hours."
Sanders explained that a company road grader
was on his leases, that he had to be at a particular
gate to lock it when the grader left, and that,
meanwhile, he was just killing time looking around
here. "I never had been told that I couldn't leave
the lease .... I've been working for you about 25
years ... and you never have said anything like this
to me."
"Well," said Junk, "It don't make no difference
if you've been working 50 years ... You're not
going to be another 24 hours if you don't get out of
this thing.... I don't want to catch you on any of
our leases during working hours. I don't want to
catch you on any other lease any time." Sanders
said he would comply, and he left for West
Jackson.21
Next day, on advice of counsel, Junk prepared a
letter which he sent to Sanders:
Confirming my instruction to you yesterday on
our Henley "C" Lease, you will refrain from
visiting any company leases , during your regu-
lar work hours, other than the leases presently
assigned to your job.
This letter is sent you so there can be no mis-
understanding of your company's instructions,
so that no more violations will occur.
It becomes necessary, at this point, to examine in
some detail several facets of the working hours of
the Company's pumpers, generally, and of the cir-
cumstances surrounding Sanders' absence from his
lease on October 5, particularly.
As has been noted earlier, the Company's
pumpers are responsible for the proper functioning
of their wells 7 days a week, 24 hours a day. On the
18 Tomkms' testimony was to the effect that Moore had not yet turned
down the offer As I have found, Moore did reject the offer on the night of
September 26
11 This ws the lease adjacent to the East Jackson Lease, which had
figured in the Tomkins' layoff-supra Sanders had been assigned to West
Jackson in August 1967
10 My findings as to this conversation do not completely accord with
either Sanders ' or Junk's testimony They are based upon the relative im.
pressions made by the two and upon my evaluations of the plausibility of
what they testified was said
354-126 O-LT - 73 - pt. 2 - 32
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis of estimates as to the number of hours per
week which will necessarily be consumed by the ac-
tual work to be performed on given leases-for ex-
ample, 50, 52, or 54-the pumpers, under their
respective BELO contracts, are guaranteed that
number of compensated hours per week If a
pumper works less than the specified number of
hours, he still receives pay lfor! the iBELO-guaran-
teed number, and if he works more than this
number-a practice the Company discourages-he
receives additional overtime pay for the excess, but,
whether because the estimates are so accurate or
because the pumpers "pace" themselves ac-
cordingly, the number of hours actually worked
customarily approximates closely the number of
hours guaranteed.
Each pumper is required to make the rounds of
his assigned wells at least once a day every day; he
is required to do whatever work (e.g., oil treating,
engine maintaining, leak repairing) is indicated as
soon as possible-if necessary, calling for
assistance; and he is required to keep records cur-
rently (e.g., of oil sales and of the number of hours
he works each day). Furthermore, I find that, by
the very nature of the work, the pumper is ex-
pected, generally, to work during the daylight hours
and that, since the help of roustabouts from the
respective district headquarters is occasionally
called for, he is expected, generally, to perform his
work during roustabouts' working hours.21 Within
this broad framework , his actual work scheduling is
a flexible matter left largely to his discretion.
Moore, for example, testified that he "tried to
put in" 8 hours on weekdays, 6 on Saturday, and 4
on Sunday, but that the proportion varied. On
weekdays, he usually left his home about 5:45 a.m.,
traveled 80 miles , and started work at 7:30 a.m.; in
the evening , he normally arrived home at 6:45 p.m.,
which means that-since the homeward trip con-
sumed 15 or 20 minutes more than the morning
trip-he left work at approximately 4:30 p.m. But,
on a day about which he testified, he worked until 6
p.m. On another day-about which Junk testified-
he left work about 2:30 p.m.
Sanders worked 54 hours a week, 8 each on
weekdays and 14 Saturday and Sunday if all went
normally. More representative than Tomkins of the
pumpers who lived in lease houses , he started mak-
ing his rounds at 7 a .m. and finished them during
the forenoon; in the afternoon, he performed
necessary paperwork and odd jobs until "quitting
time ." Quitting time, which marked the end of the
8-hour (weekday) working period, varied, depend-
ing on whether Sanders had taken time off for per-
sonal reasons . For example, if-as did occur-he
" Roustabouts work from 8 a in to 4 30 p in Monday through Satur-
days, inclusive
"Junk testified that pumpers might work 3 hours one day, 4 the next,
and 17 on the third that he had occasion to run across them in town or
anywhere else at midafternoon-that he sometimes had coffee with them
when they met, that there was nothing untoward in a pumper 's going to
went into town for a pair of shoes or for a haircut,
he would make up the lost time at the end of the
workday
In short, within the broad limitations earlier set
forth, I find that pumpers set their own starting and
quitting times; that, in these respects, they varied
one from another; and that, with up to several
hours' leeway at either end of a tour of work, they
took up to several hours off for personal reasons
whenever it was deemed necessary, within their dis-
cretion I find further that the Company was aware
of this practice and had no objection to it.22
Returning to Sanders, on October 5, 1967, so far
as this record reveals, this had been a normal work-
day. During the day, Jimmy Gill, operator of a com-
pany road grader, made one of his periodic visits to
the Jackson properties in order to fix the company-
maintained roads there. There were no out-of-the-
ordinary road-maintenance problems on this occa-
sion and Gill, a competent maintainer with 26 years
of company service, proceeded to scrape roads and
open ditches where necessary.
There had been past occasions-and Sanders was
aware of them-on which road maintainers had
torn up small lines carrying gas, water, or oil. But
this had never happened on any of Sanders' leases,
and he felt no obligation-nor had he ever received
any instruction-to stay with the grader at all times
while it was on the property for which he was
responsible. There was a single exception on this
occasion: Part of the property belonged to one
Murphy, who had a reputation for resenting the
Company's presence on his land-his ownership
was subject to the lease-out of oil rights, yet he
received no oil royalties-and Sanders, knowing
that Murphy was "difficult" and aware that a line
break might bring harm to Murphy's land or cattle,
stayed with Gill while the roads on Murphy's prop-
erty ^ were t being graded, watching 11 for , lines.
Thereafter, Gill moved onto a lease which had no
lines near the roads but which had a gate, the
locking of which was the pumper's responsibility;
and it was at this time that, until the grader should
depart and the gate would require locking, Sanders
decided to visit Boyd.
G. Discussion-Conclusions
The General Counsel argues that the circum-
stances of the 1966 layoff demonstrate that the ac-
tion was motivated by union animus and that, at the
very least, the Company was made aware at that
time of Tomkins' and Moore's union activities; that
the testimony establishes that on October 5, 1967,
the Company, through Junk, (1) "promulgated and
another lease for conversation whenever it did not interfere with his work,
that the Company has "no control over a pumper" and might not know his
whereabouts at a given time, and that, if he ran into a pumper off-lease at 3
p in he would ask no questions -he would assume that 8 hours of work
would be put in nevertheless
BRIDWELL OIL COMPANY
discriminatorily enforced" a rule prohibiting em-
ployees from soliciting union membership or sup-
port during nonwork time, and (2) threatened an
employee (Sanders) with discharge if he continued
to be a member of and active on behalf of the
Union, each of which acts constituted interference
with, and restraint and coercion of, employees in
the exercise of their self-organizational rights, as
well as proof of the Company's union animus; and
that, under all the circumstances, it is clear that
Tomkins and Moore were laid off in September
1967 and thereafter refused recall because they
joined and assisted the Union. Counsel for the
Company sharply disagrees: In effect, he contends
that the circumstances of the 1966 layoff shed no
light on the issues herein; he argues that the
evidence as to the October 5, 1967, conversation
between Junk and Sanders does not establish the
facts as pressed by the General Counsel and that,
even assuming the existence of these facts, Junk's
statements were shortly clarified and any violation
of the Act, if it had occurred, was cured; that the
available evidence does not support the General
Counsel's conclusions regarding Tomkins' and
Moore's 1967 layoffs; and that, contrary to the
General Counsel's position, the Company had of-
fered Tomkins employment subsequent to his
layoff.
Although the General Counsel does not ask me
to find the 1966 layoff to be an unfair labor prac-
tice, he does, in effect, ask me to make inferences
adding up to a violation of the Act. This I shall not
do. The evidence on the subject fell far short of
preponderating proof that the motivation for the
layoffs was union connected. There were plausible
reasons for the Company's action; there was no
evidence of company knowledge of the fact that
the involved employees signed union cards; and
there was no evidence giving reason to believe that
the layoffs were not what they appeared to be on
the surface.23 The most which can be drawn from
the incident is the fact-which I find-that, at least
as of September 29, 1966, the date of the "settle-
ment," the Company became aware that the Union
on the one hand, and Tomkins and Moore on the
other, had a mutual interest.
My findings as to the Junk-Sanders conversation
of October 5, 1967, have been set forth earlier.
Under the circumstances-the flexibility of the
pumpers' workday, the traditional acceptance of
the fact that pumpers could and did leave their
workplaces on personal business, at their option,
and Junk's usual reaction to midday encounters
with pumpers off their jobs-I find that Junk, in
telling Sanders, "We're not going to put up with
this . . . . I know what you're here for, and you're
going to be in trouble being off your job during
23 I do not regard the Company's "settlement" of the issues as indicative
of anything relevant herein
Y4 Counsel for Respondent, at the hearing, stated that the fact that a road
grader was on Sanders ' leases, and only that fact, was the reason for Junk's
1643
regular working hours.... I don't want to catch
you on any of our leases during working hours. I
don't want to catch you on any other lease any
time," was indeed instructing Sanders that he might
not engage in union activities on or off his regular
worktime. I find that Junk, fully aware of Sanders'
part in the collective-bargaining negotiations and of
the fact that the contract tentatively reached was
undergoing consideration by the employees in the
bargaining unit, was seeking either to prevent San-
ders from pressing his views upon others or to in-
,hibit interemployee discussion of the subject.24
Whether tnis be considered a rule against a specific
employee's discussing union matters on his own
time or a general rule against employees' union
discussions on their own time, it constituted inter-
ference with employees' activities protected by the
Act.
(Junk's letter of October 6, on the other hand,
was of a different character. Purporting to "con-
firm" the prior day's conversation, it in fact con-
stituted a correction. On advice of counsel, Junk
now emphasized that Sanders must stay on his own
leases "during your regular working hours." Under
the working practices of the Company, enforce-
ment of such a restriction might, I suspect, lead to
problems of interpretation and, perhaps, future
charges of unlawful discrimination; on its face,
however, I find-and it is well settled-that requir-
ing employees to devote working hours to work is
unobjectionable under the Act.),
have not credited that part of Sanders'
testimony to the effect that Junk, in telling him he
would not be with the Company "another 24 hours
[if he left his lease]," added "if you don't get out of
this thing." More plausibly-as I have found-Junk
was telling Sanders that his job would be
jeopardized if he violated the no-solicitation rule
being enunciated, he was not, in my opinion, saying
further that discharge would follow if Sanders did
not withdraw from the Union or withdraw his sup-
port therefrom. Therefore, I find that the com-
plaint 's allegation in this particular respect is not
supported by the evidence.
We now come to the 1967 layoffs of Tomkins
and Moore.
Tomkins' case boils down to this. The Company,
in assigning him a job 80 miles from his home, had
provided him with a house on the job and had of-
fered to pay his moving expenses. He chose to com-
mute, citing the school situation of his son as the
reason. For 9-plus months, he did commute.
Toward the end of the period, company officials
pressed him to make the move and, when he now
refused on the ground that the lease house was un-
suitable for his family,, laid him off. That the Com-
pany would want a pumper to live on, or at least
outburst But(1) I have found that Junk assumed the attitude he did before
Sanders told him about the grader, and (2 ) if this were in fact the sole basis
for the admonition , it is incredible that this was not mentioned in the "con-
firming " letter sent Sanders next day
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
near , the property for which he is responsible 7
days a week and 24 hours a day is manifestly plausi-
ble.ts Nor did anything occur at or about the time
of the layoff which would give rise to suspicions
that the action was union connected; there is no
substantial basis for a finding that the reason as-
signed by the Company for the action was a pre-
text; the most that might be said is that the Com-
pany paid little heed to personal considerations.
Moreover, the layoff, I am convinced, was a tem-
porary one. This was demonstrated by the terms of
the personnel action-"until such time that a job is
available that suits you and your company"-and
by the fact that Tomkins was thereafter offered the
Snider job. I am not convinced, as argued by the
General Counsel, that the offer was not made in
good faith.26
Moore also was laid off until suitable work
should become available. Insofar as is revealed by
this record, he was a casualty of the Company's
longstanding tradition of according employment
seniority little or no weight. (As in Tomkins' case,
the preponderant evidence does not support the
conclusion that he was ottered the Snider job with
an object that he reject the offer.) While his treat-
ment at the hands of the Company may have lacked
compassion, I am not persuaded that it was bot-
tomed upon reasons related to union or other pro-
tected activities.
In sum, on what I consider to be a fair preponde-
rance of the credible evidence, I find and conclude
that the Company, through its agents , did not lay
off S. M. Tomkins and W. G. Moore in September
1967 because they joined and assisted the Union or
engaged in other union or concerted activities for
" There is nothing inconsistent between this policy and the Company's
present tendency to eliminate lease houses
the purpose of collective bargaining or mutual aid
or protection, and that it did not threaten an em-
ployee with discharge or other reprisals if he
became or remained a member of the Union or
gave any assistance or support to it; and that,
although, on October 5, 1967, through its agent A.
T. Junk, the Company enunciated a rule prohibiting
or inhibiting employees from discussing union mat-
ters on nonworking time, thereby interfering with,
restraining, and coercing them in the exercise of
the self-organization rights guaranteed them, it
took adequate remedial action within 24 hours,
thereby making unnecessary the issuance of any
order herein to effectuate the policies and purposes
of the Act.
Upon the foregoing factual findings and conclu-
sions , I come to the following:
Conclusions of Law
1. The Company is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
3. The Company has engaged in no unfair labor
practices warranting the issuance of a remedial
order.
RECOMMENDED ORDER
I recommend that the complaint be dismissed in
its entirety.
S° The job was in fact available, and the terms were those applicable to
incumbents both before and after