Equitable Resources Energy Co

National Labor Relations Board - Board Decisions

May 29, 1992

307 N.L.R.B. 730 (N.L.R.B. 1992)

730
307 NLRB No. 116
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We correct the following errors in the judge’s decision: in sec.
III,C, he referred to Sunnyvale Medical Clinic as Sunnyside Medical
Clinic, referred to employee Lynn Miller as ‘‘Larry Miller,’’ and re-
ferred to the reprimand of Matthew Hamner as ‘‘the reprimand of
Hanifan;’’ and in sec. III,D, he stated that David McClure and five
other employees had been laid off in 1986 for 26 days; in fact they
were laid off for 26 weeks.
2 The judge found that the May 14, 1990 layoff violated Sec.
8(a)(3) and (1) of the Act. However, the judge inadvertently failed
to include in his findings the names of all of the laid-off employees
as pled in the complaint and admitted by the Respondent. Thus, we
will amend the judge’s conclusions of law and recommended Order
to include the following employees: Thomas Kelley, Mike Koon,
Edwin McClure, Gary Phillips, and Robert Workman.
We will also amend the judge’s conclusions of law to include his
finding that the Respondent violated Sec. 8(a)(3) and (1) of the Act
by sending employees Malcolm and Shingleton home early because
they engaged in union activities.
3 We will modify the judge’s recommended Order to require the
Respondent to remove from its files any reference to the unlawful
layoff, to make whole any employees who were sent home early be-
cause of their union activity, and to require that the Respondent re-
scind its new overtime policy and make whole all employees ad-
versely affected by this unilateral change in policy in the manner
prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as provided in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
4 All dates are in 1990 unless otherwise stated.
5 With regard to the threats made by Rose at the early March
meeting, we note that the judge erred in stating that the testimony
of employees who were present at the meeting was ‘‘not con-
troverted.’’ Rose testified that he did not make any threatening state-
ments at the meeting, and that he only sought to compare the terms
and conditions of employment offered by Equitrans, a unionized
firm, to those offered by the Respondent. Based on our review of
the record, we find that the judge’s error in overlooking Rose’s testi-
mony does not affect the outcome of the case. We note that the testi-
mony of employees Hamner, Hinchman, Johnston, Detamora, and
McClure regarding the statements made at the meeting was mutually
corroborative and that the testimony of these witnesses was credited
by the judge on the basis of their demeanor.
6 We adopt the judge’s finding that Bonnett’s threat that if the
Union were voted in there would probably be layoffs violated Sec.
8(a)(1) of the Act.
Equitable Resources Exploration, a Division of Eq-
uitable Resources Energy Company and Oil,
Chemical and Atomic Workers International
Union, AFL–CIO. Case 6–CA–22721
May 29, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 30, 1991, Administrative Law Judge
Elbert D. Gadsden issued the attached decision. The
Respondent filed exceptions, a supporting brief, and an
answering brief to the General Counsel’s exceptions.
The General Counsel filed limited exceptions, a sup-
porting brief, an answering brief, and a brief in support
of the judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified,2 and to adopt the recommended
Order as modified and set forth in full below.3
1. For the reasons set forth below, we adopt the
judge’s finding that the Respondent violated Section
8(a)(3) and (1) of the Act when it laid off employees
on May 14, 1990,4 because they engaged in union ac-
tivity.
In early March, employees Lynn Miller and Mat-
thew Hamner contacted the Union to discuss the pos-
sible representation of the Respondent’s employees.
Soon after, they began soliciting employees to sign
union authorization cards in the Respondent’s parking
lot, in full view of management, and conducted their
first union meeting.
On March 3, the Respondent called a meeting of all
employees with three supervisors present. During this
meeting, Superintendent Rose threatened the employ-
ees that if they voted in the Union, the plant would
close for 1 year, the employees would lose the over-
night use of company trucks, the Respondent would in-
stall a timeclock, employees would work an 8-hour
rather than a 9-hour day, and unit work would be sub-
contracted or performed by supervisors. The judge
found, and we agree, that these threats violate Section
8(a)(1) of the Act.5
On March 5, Supervisor Ronald Bonnett asked em-
ployees Shingleton and Malcolm if they had heard
anything about a union petition going around or if they
were in favor of the Union. The employees replied that
they had not heard of the petition and were undecided
about whether the Union would work there. Bonnett
then told them that he would not advise the employees
to go union and that if the employees did go union,
they could lose the use of the company trucks, there
would probably be layoffs,6 and the Company just
would not stand for it.
Roustabout Charles Malcolm testified that in early
March, Bonnett told him that if the employees selected
the Union as their bargaining representative, the em-
ployees would be sent home after they completed their
assigned job, rather than being assigned other work, as
was the current practice.
Employee Randall Shingleton testified that at 9 a.m.
on March 12, Supervisor Bonnett approached
Shingleton and Malcolm as they were working and
asked them what they had left to do. They replied that
731EQUITABLE RESOURCES ENERGY CO.
7 The judge found that the Respondent violated Sec. 8(a)(3) and
(1) of the Act by sending employees Charles Malcolm and Randall
Shingleton home early because they engaged in union activities. In
agreeing with the judge’s conclusion, we note that he erred in stating
that the Respondent ‘‘did not controvert’’ the testimony supporting
this allegation. Superintendent Rose testified that the employees were
sent home because the Respondent did not have any work for them,
and denied sending them home because of their union activities.
Based on our review of the record, we find that the judge’s error
in overlooking Rose’s testimony does not affect the outcome of the
case, particularly in light of the judge’s statement that he was per-
suaded by Shingleton’s demeanor and credited his testimony.
8 For the reasons set forth in sec. 2, infra, we adopt the judge’s
finding that Hamner’s warning was discriminatory and violated Sec.
8(a)(3) and (1) of the Act.
they had one more T to weld. Bonnett then told them
that when they were finished, they should just pack up
and go home because ‘‘we don’t have anything else’’
and because it was lightly snowing outside. Prior to
the employees’ union activity, the Respondent gen-
erally assigned employees to do clean up or other work
when they completed their assigned job before the end
of the workday. This practice was followed when work
was slow or when the weather was bad. In this regard,
Shingleton and Malcolm testified that prior to the
union campaign, they had never been sent home be-
cause of a lack of work or weather conditions.7
Employee Leonard Spotloe testified that in April,
Supervisor Leigh told him that he had just come from
a supervisor’s meeting in which Rose told them that he
had five employees—Matthew Hamner, Bob Stewart,
Cliff Loudin, Randy Shingleton, and Lynn Miller—all
known union supporters, whom he wanted to get rid
of if the Union was not selected. The judge found, and
we agree, that Rose’s statement violated Section
8(a)(1) of the Act.
On May 4, the Union won the election. One week
later, May 11, the Respondent issued an unlawful writ-
ten warning to Matthew Hamner.8 On the same day,
the Respondent called a meeting of employees to in-
form them that certain employees would be laid off the
following Monday, May 14, and that evening notified
the Union about the layoffs.
Hamner testified that after the layoff, Heater’s Dozer
& Excavating, a subcontractor, performed work 60
miles away in Tyler and Ritchie Counties that had pre-
viously been performed by the laid-off equipment op-
erators. Hamner testified to another instance after May
14 when the Respondent subcontracted dozer work to
a large dozer operator rather than using the Respond-
ent’s own smaller dozer that could have done the same
job in the same amount of time for a lesser fee, and
that Hamner had seen this kind of work performed be-
fore with the Respondent’s smaller dozer. Hamner ad-
mitted that the Respondent had subcontracted work in
the past, but testified that this was only under special
circumstances, such as when the Respondent’s heavy
equipment was not available or could not otherwise do
the job. Hamner did not see any special circumstances
surrounding the work contracted out after May 14.
Well Tender Joseph Montgomery also testified that
since the layoff, he observed outside contractors pull-
ing slate trucks and cement trucks and redoing road
crossings, work that had previously been performed by
roustabouts and operators with the Respondent’s own
equipment. He testified that this was also true with re-
spect to grading roads, repairing creek crossings, put-
ting in culverts, and spreading rock on well roads.
We agree with the judge that the timing of the lay-
off, 2-1/2 months after the commencement of union or-
ganizing activities and just 1 week after the Union won
the election, supports a finding that the layoff, at least
in part, was unlawfully motivated. In this regard, we
note that after the Respondent became aware of the
employees’ union activities about March 2, it interro-
gated employees about their union sympathies and
threatened them with layoff and other reprisals if they
selected the Union as their bargaining representative.
On May 11, exactly 1 week after the Union won the
election, the Respondent unlawfully reprimanded an
employee who had served as the Union’s observer and
thereafter served as president of the Union local (see
sec. 2, below). The same day, the Respondent advised
its roustabouts, pipeline employees, and equipment op-
erators that they were laid off the following workday.
In view of the timing of the layoffs and the Re-
spondent’s unlawful conduct between early March and
May 14, we find that the General Counsel has estab-
lished a prima fcie case that the employees’ union or-
ganizing activity was a motivating factor in the Re-
spondent’s decision to lay them off. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
Under Wright Line, the burden then shifts to the Re-
spondent to demonstrate that the same action would
have taken place even in the absence of the employ-
ees’ protected conduct. The Respondent asserts that the
reason for the layoff was lack of work resulting from
a shift in the direction and scope of its business oper-
ations by abandoning and selling wells and eliminating
its drilling and pipeline operations. In support, the Re-
spondent submitted evidence that since 1984 it has
been selling wells and drastically decreasing the num-
ber of wells drilled, thereby redirecting its business op-
erations towards tending wells. The Respondent claims
that these operational changes resulted in a cor-
responding decline in bargaining unit work, especially
pipeline and reclamation work. In this regard, the Re-
spondent’s in-house counsel, Robert Wallace, testified
that he was aware since 1987 of the Respondent’s plan
to gradually downsize its drilling operations. However,
he also testified that there were 953 wells in operation
at the time of the hearing, about the same number as
in the previous year.
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 We agree with the judge’s finding that the Respondent violated
Sec. 8(a)(5) and (1) by laying off employees on May 14 without af-
fording the Union timely notice and an opportunity to bargain over
the decision. Our finding that the layoffs were implemented for un-
lawful discriminatory reasons precludes any argument that the deci-
sion was exempt from the bargaining obligation as a legitimate en-
trepreneurial decision. See cases cited at fn. 11, infra.
We leave to compliance the issue of whether any subsequent
agreements between the parties regarding future layoffs and the re-
call rights of laid-off employees would affect the reinstatement and
backpay of the employees laid off on May 14.
10 We adopt the judge’s finding that Supervisor Leigh’s statement
to Miller informing him that the Respondent had requested certain
employees to watch a known union supporter to catch him doing
something wrong violated Sec. 8(a)(1) of the Act.
11 We agree with the judge that the subcontracting violated Sec.
8(a)(5) and (1). In doing so, we note that the subcontracting was
necessary in order to accommodate the needs of the Respondent fol-
lowing the May 14 discriminatorily motivated layoff. The sub-
contractors were performing work normally performed by the unlaw-
fully laid-off employees. Therefore, the Respondent’s decision to
subcontract unit work was based on antiunion animus and is not a
legitimate entrepreneurial decision exempt from the Respondent’s
We agree with the judge’s finding that the Respond-
ent was not lacking in work on Monday, May 14, for
full-time employment of the laid-off employees and
that the Respondent’s asserted reasons for the layoff
are pretextual. The evidence establishes that the laid-
off employees worked full time up until the layoff, in-
cluding up to 5 hours of overtime per week, and had
received no indication from the Respondent that their
work was about to cease. Several employees testified
that they did not notice a change in the volume of their
work prior to May 11. Further, no evidence was pre-
sented by the Respondent to show that all the work
previously performed by the laid-off employees sud-
denly ceased on May 11. There was no evidence that
any particular group of wells was scheduled to be shut
down on that date nor that any aspect of the Respond-
ent’s business operations was suddenly discontinued.
The judge pointed out that the downsizing of the Re-
spondent’s operation has been a gradual process over
the preceding 5 or 6 years, with no end in sight. Based
on all the foregoing, we find that the Respondent
failed to establish that the employees laid off on May
14 would have been laid off at that time in the absence
of any union activity by the employees. Having found
that the Respondent failed to rebut the General Coun-
sel’s prima facie showing, we conclude that the Re-
spondent’s May 14 layoff violated Section 8(a)(3) and
(1) of the Act.9 Wright Line, supra.
2. For the reasons stated below, we adopt the
judge’s finding that the Respondent violated Section
8(a)(3) and (1) by issuing Matthew Hamner a written
warning.
During the union campaign in early March, Hamner
served as the liaison between the employees and the
Union. He served as the Union’s observer at the May
4 election and was subsequently elected local president
by the unit employees.
Employee Lynn Miller credibly testified that Super-
visor Dick Leigh told him that Superintendent Rose
had instructed employees Rod Davis and Ricky
Hanifan to watch Hamner closely to see if they could
catch him doing something wrong.10 Davis reported to
Rose that he saw Hamner’s truck parked outside the
Midway Diner on April 23 and again on May 7. The
Midway Diner is located within the boundaries of
Hamner’s assigned working area.
On May 11, the day the Respondent announced the
layoffs, Hamner was issued a written warning for stop-
ping at a restaurant on April 23 and May 7. Hamner
admits being at the restaurant on both dates and testi-
fied that he has been stopping at the Midway Diner
once or twice a week for about a year and a half to
buy lunch and is usually inside about 20 minutes.
Hamner was not previously notified that the April 23
and May 7 instances would serve as the basis for a
written reprimand.
We find that the Respondent’s policy against stop-
ping at restaurants during the workday has been dispar-
ately enforced against Hamner because of his union ac-
tivities. The evidence shows that it has been common
practice for many of the well tenders to stop and pick
up lunch or other food items during their workday.
Employee Leonard Spotloe testified that he has been
stopping at food stores or restaurants at least once dur-
ing each workday to buy lunch or soft drinks, several
times with supervisor Leigh, and has never been dis-
ciplined. Employee Miller testified that he stopped for
food approximately two times per week for about 10
minutes and was never reprimanded. Employee
Clifford Loudin testified that he was aware of a com-
pany policy against an employee being out of his area
during the workday with a company truck and that he
was given a verbal warning for violating this policy.
The record shows that the only other written warning
issued was to Robert Stewart on March 27, 1990, for
being 15 miles out of his area with a company vehicle
during working hours.
Based on the fact that no employees were ever
issued written warnings for being in restaurants, and
that only one employee was issued a written warning
and that was for being 15 miles out of his working
area, we adopt the judge’s finding that the Respondent
disparately enforced its restaurant policy against
Hamner, a known union supporter, in violation of Sec-
tion 8(a)(3) and (1) of the Act.
3. The judge found that after the May 14 layoff, the
Respondent subcontracted unit work and permitted its
supervisors to perform unit work previously performed
by the laid-off employees without prior notice to the
Union and without affording the Union an opportunity
to bargain, in violation of Section 8(a)(5) and (1) of
the Act.11
733EQUITABLE RESOURCES ENERGY CO.
bargaining obligation. Central Transport, 306 NLRB 166 (1992);
Ad-Art, Inc., 290 NLRB 590 (1988); Strawsine Mfg. Co., 280 NLRB
553 (1986).
12 The General Counsel filed no exceptions to this finding.
The Respondent excepted to the judge’s finding that
the Respondent permitted supervisors to perform unit
work on the basis that there was no evidence that the
individuals involved were supervisors within the mean-
ing of the Act, rather than nonsupervisory unit employ-
ees, and because the General Counsel failed to meet
his burden of proving that the Respondent changed its
policy with regard to supervisors working. We agree
with the Respondent and find that the General Counsel
has not shown that the Respondent violated Section
8(a)(5) by permitting supervisors to perform unit work.
Hamner testified that after the layoff, he saw bar-
gaining unit work, including roustabout, shop labor,
and pipeline work, being performed by unnamed ‘‘su-
pervisors.’’ He also testified, however, that supervisors
have always performed this work when no other em-
ployees were available. Other than these fill-in situa-
tions, the only other instance Hamner could recall
when supervisors performed work was when Well
Tenders Davis and Hanifan, found by the judge not to
be Section 2(11) supervisors,12 were performing roust-
about work. We find this testimony to be insufficient
to support the judge’s finding that supervisors, as op-
posed to nonsupervisory unit employees Hanifan and
Davis, were performing unit work or that the Respond-
ent changed its past practice in any way.
4. The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act when it announced
a change in its overtime policy, without notifying the
Union and without affording the Union an opportunity
to bargain over the change. In adopting the judge’s
finding, we do not rely on his statement that the Re-
spondent changed its policy ‘‘by ordering that all wells
coming up be shut down at the end of the 8-hour shift,
rather than letting the wells run past the work day shift
as was the practice prior to May 14.’’ Rather, we rely
on the credited testimony of employees David
McClure and Matthew Hamner that prior to May 14,
the Respondent permitted the employees to work be-
yond their 8-hour workday, without specific approval,
as necessary to finish up a job, including a need to
work on a well that came up late in the workday.
Under this policy, the employees worked up to 5 hours
of overtime each week. On May 14, Operations Super-
intendent Jim Rose announced a change in the policy,
without notice to the Union, stating that from this
point on, employees could work overtime only with
the specific approval of their supervisors. We find that
the new overtime policy constituted a substantial
change in employees’ terms and conditions of employ-
ment by depriving the employees of up to 5 hours of
overtime pay each week. By unilaterally implementing
that change, the Respondent violated Section 8(a)(5)
and (1) of the Act.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for paragraph 14.
‘‘14. By unilaterally contracting out unit work of the
laid-off employees without notifying the Union and
without affording it an opportunity to bargain on its
decision, the Respondent violated Section 8(a)(5) and
(1) of the Act.’’
2. Substitute the following for paragraph 17.
‘‘17. By discriminatorily laying off employees
Charles Hinchman, Randall Shingleton, Ernest John-
ston, David McClure, Donald Detamora, Charles Mal-
colm, Thomas Kelley, Mike Koon, Edwin McClure,
Gary Phillips, and Robert Workman, the Respondent
violated Section 8(a)(3) and (1) of the Act.’’
3. Insert the following after paragraph 12 and re-
number the remaining paragraphs accordingly.
‘‘13. By sending employees home early because
they engaged in union activities, the Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
‘‘14. By threatening employees with layoff if they
selected the Union as their collective-bargaining rep-
resentative, the Respondent violated Section 8(a)(1) of
the Act.’’
ORDER
The National Labor Relations Board orders that the
Respondent, Equitable Resources Exploration, a Divi-
sion of Equitable Resources Energy Company,
Buckhannon, West Virginia, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Threatening employees that the plant would
close if they selected the Union as their collective-bar-
gaining representative.
(b) Threatening employees that the Respondent
would withdraw their privilege of driving company
trucks home overnight if they selected the Union as
their collective-bargaining representative.
(c) Threatening employees that the Respondent
would install a timeclock if they selected the Union as
their collective-bargaining representative.
(d) Threatening employees that their overtime would
be cut if they selected the Union as their collective-
bargaining representative.
(e) Threatening employees that their work would be
subcontracted or performed by supervisors if they se-
lected the Union as their collective-bargaining rep-
resentative.
(f) Threatening employees with layoff if they se-
lected the Union as their collective-bargaining rep-
resentative.
(g) Interrogating employees about their union inter-
est and union activities.
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(h) Informing employees that the Respondent want-
ed to get rid of known and suspected union supporter
employees.
(i) Threatening to send employees home early be-
cause they engaged in union activity.
(j) Informing employees that the Respondent re-
quested certain employees to observe known union
supporters to catch them doing something wrong.
(k) Sending employees home early because they en-
gaged in union activities.
(l) Unilaterally changing a policy or practice of al-
lowing employees to work 9 rather than 8 hours a day.
(m) Unilaterally laying off employees and con-
tracting out their work without notifying the Union and
without affording it an opportunity to bargain on the
changes.
(n) Failing to timely notify the Union and afford it
an opportunity to bargain on the unilateral decision to
change the overtime policy.
(o) Issuing written warnings to employees because
they are union supporters.
(p) Discriminatorily laying off employees because
they engaged in union or concerted activity for mutual
aid and protection.
(q) Failing and refusing to recognize and bargain
with Oil, Chemical and Atomic Workers International
Union, AFL–CIO as the bargaining representative of
the employees.
(r) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Remove from all company records on Matthew
Hamner any reference to the unlawful warning issued
to him, and notify him in writing that this has been
done and that the unlawful warning will not be used
against him in any way.
(b) Offer employees Charles Hinchman, Randall
Shingleton, Ernest Johnston, David McClure, Donald
Detamora, Charles Malcolm, Thomas Kelley, Mike
Koon, Edwin McClure, Gary Phillips, and Robert
Workman immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole, with interest,
for any loss of earnings and other benefits suffered as
a result of the unlawful layoffs, in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as provided in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
(c) Remove from its files any reference to the un-
lawful layoffs and notify the employees in writing that
this has been done and that the layoffs will not be used
against them in any way.
(d) Rescind the new overtime policy and make
whole all employees affected by the unilateral decision
to change this policy, with interest as provided in New
Horizons, supra.
(e) Make whole any employees who were sent home
early because of their union activity, with interest as
provided in New Horizons, supra.
(f) On request, bargain with Oil, Chemical and
Atomic Workers International Union, AFL–CIO as the
exclusive representative of the employees in the fol-
lowing appropriate unit, concerning the decision to lay
off employees, subcontract unit work, change the over-
time policy, and other terms and conditions of employ-
ment:
All hourly employees including Truck Driver,
Roustabout, Grader Operator Shop Laborer, Dozer
Operator, Mechanic B, Welder, Meter Tech/Well
Tender and Well Tenders employed by the Re-
spondent at its Buckhannon, West Virginia and
Pennsylvania and New York well tending sites
but excluding office clerical employees, janitorial
employees and professional employees, guards
and supervisors as defined in the Act.
(g) Preserve and, on 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
records necessary to analyze the amount of backpay
due under the terms of this Order.
(h) Post at its facility in Buckhannon, West Virginia,
copies of the attached notice marked ‘‘Appendix.’’13
Copies of the notice, on forms provided by the Re-
gional Director for Region 6, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
735EQUITABLE RESOURCES ENERGY CO.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten employees that our plant
would close if they selected the Union as their collec-
tive-bargaining representative.
WE WILL NOT threaten employees that we will with-
draw their privilege of driving company trucks home
overnight if they select the Union as their collective-
bargaining representative.
WE WILL NOT threaten employees that we will in-
stall a timeclock if they select the Union as their col-
lective-bargaining representative.
WE WILL NOT threaten employees that their overtime
would be cut if they select the Union as their collec-
tive-bargaining representative.
WE WILL NOT threaten employees that their work
would be subcontracted or performed by supervisors if
they select the Union as their collective-bargaining rep-
resentative.
WE WILL NOT threaten to lay off employees if they
select the Union as their collective-bargaining rep-
resentative.
WE WILL NOT interrogate employees about their
union interest and union activities.
WE WILL NOT inform employees we want to get rid
of known and suspected union supporter employees.
WE WILL NOT threaten to send employees home
early because they engage in union activity.
WE WILL NOT inform employees that we have re-
quested certain employees to observe known union
supporters to catch them doing something wrong.
WE WILL NOT send employees home early because
they engage in union activity.
WE WILL NOT unilaterally change our policy or
practice of allowing employees to work 9 rather than
8 hours a day.
WE WILL NOT unilaterally lay off employees and
contract out their work without notifying the Union
and without affording it an opportunity to bargain on
the changes.
WE WILL NOT fail to timely notify the Union and af-
ford it an opportunity to bargain on the unilateral deci-
sion to change our overtime policy.
WE WILL NOT issue written warnings to our employ-
ees because they are union supporters.
WE WILL NOT lay off or otherwise discriminate
against any of our employees for organizing or sup-
porting Oil, Chemical and Atomic Workers Inter-
national Union, AFL–CIO or any other labor organiza-
tion.
WE WILL NOT fail and refuse to recognize and bar-
gain with Oil, Chemical and Atomic Workers Inter-
national Union, AFL–CIO as the bargaining represent-
ative of the employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL remove from all company records any ref-
erence to the unlawful warning issued to Matthew
Hamner, and notify him in writing that this has been
done and that the unlawful warning will not be used
against him in any way.
WE WILL offer employees Charles Hinchman, Ran-
dall Shingleton, Ernest Johnston, David McClure, Don-
ald Detamora, Charles Malcolm, Thomas Kelley, Mike
Koon, Edwin McClure, Gary Phillips, and Robert
Workman immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against them, with interest.
WE WILL remove from our company records any
reference to the unlawful layoff of the above-named
persons, and notify each of them in writing that this
has been done and that the unlawful layoff will not be
used against them in any way.
WE WILL rescind the new overtime policy and make
whole any employees affected by our unilateral deci-
sion to change this policy, with interest.
WE WILL make whole any employees who were sent
home early because of their union activity, with inter-
est.
WE WILL, on request, bargain with Oil, Chemical
and Atomic Workers International Union, AFL–CIO as
the exclusive representative of our employees in the
following appropriate unit, concerning the decision to
lay off employees, subcontract unit work, change our
overtime policy, and other terms and conditions of em-
ployment:
All hourly employees including Truck Driver,
Roustabout, Grader Operator Shop Laborer, Dozer
Operator, Mechanic B, Welder, Meter Tech/Well
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Tender and Well Tenders employed by us at our
Buckhannon, West Virginia and Pennsylvania and
New York well tending sites but excluding office
clerical employees, janitorial employees and pro-
fessional employees, guards and supervisors as
defined in the Act.
EQUITABLE RESOURCES EXPLORATION,
A DIVISION OF EQUITABLE RESOURCES
ENERGY COMPANY
Julie Rose Stern, Esq. and Clifford Spungen, Esq., for the
General Counsel.
Henry J. Wallace, Jr., Esq. (Reed, Smith, Shaw & McClay),
of Pittsburgh, Pennsylvania, for the Respondent.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. A
charge and an amended charge were filed on May 21 and
December 24, 1990, respectively, by Oil Chemical and
Atomic Workers International Union, AFL–CIO (the Union)
against Equitable Resources Exploration (EREX), a division
of Equitable Resources Energy Co. (EREC) (the Respond-
ent).
The complaint alleges in essence that Respondent threat-
ened employees with plant closure for 1 year, loss of the use
of company trucks, the installation of a timeclock, an 8-hour
workday rather than a 9-hour workday, and that unit work
would be subcontracted, if the employees selected the Union
as their collective-bargaining representative, in violation of
Section 8(a)(1) of the Act; and that Respondent threatened its
employees with layoff if they selected the Union as their bar-
gaining representative, interrogated employees concerning
their union membership, activities, and sympathies, and
threatened them with change of its policy of sending employ-
ees home early when they completed their specific job work,
solicited employees to sign a petition repudiating the Union,
and informed employees that the activities of union sup-
porters were under surveillance by Respondent, all in viola-
tion of Section 8(a)(1) of the Act; and that Respondent laid
off several employees, subcontracted work its employees per-
formed, denied an employee the opportunity to receive train-
ing, withdrew the benefit of employees receiving work
gloves, withdrew the benefit of employees driving company
trucks to and from home, withdrew benefits by changing hol-
iday and overtime policies, issued a written discipline to an
employee, and sent home three employees, all because of
union activities of employees, in violation of Section 8(a)(1)
and (3) of the Act.
Respondent, Equitable Resources Exploration (EREX), a
division of Equitable Resources Energy Co. (EREC), filed an
answer to the complaint on August 9, 1990, denying that it
has engaged in unfair labor practices as set forth in the com-
plaint.
The hearing in the above matter was held before me on
January 17 and 18 and February 5 and 6, 1991, in Clarks-
burg, West Virginia. Briefs have been received from counsel
from the General Counsel and counsel for the Respondent,
respectively, which have been carefully considered.
On the entire record in this case, including my observation
of the demeanor of the witnesses, and my consideration of
the briefs filed by respective counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent, a West Virginia Cor-
poration with facilities in various States, including a facility
in Buckhannon, West Virginia, has been engaged in the busi-
ness of oil and gas exploration, development, and production.
During the 12-month period ending April 30, 1990, Re-
spondent, in the course and conduct of its business oper-
ations, sold and shipped goods and services valued at
$50,000 directly to customers located outside the State of
West Virginia.
Respondent is now and has been, at all times material, an
employer engaged in commerce within the meaning of Sec-
tion 2(5) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now and has been, at all times material, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Prior to 1984 EREX was a part of Union Drilling, Inc.
(UDI), a privately owned company which engaged in drilling
and maintaining gas wells. However, in 1984, UDI was sold
to KEPCO, and a subsidiary of Equitable Gas Company
maintained UDI corporate identity until January 1, 1988,
when the name was changed to Equitable Resources Explo-
ration, Inc. On January 1, 1989, the UDI operations were
split into two separate divisions above EREC. The drilling
aspect became Union Drilling Division and EREX attained
its present form. Union Drilling Division is a contract driller
which drills wells for well owners or lessors and has nothing
to do with the operation or maintenance of wells after the
drilling is completed. EREX is a service organization which
by contract with well owners, maintains existing wells and
provides support services for their operation and production
functions.
The instant proceeding involves the Company’s operations
located at Buckhannon, West Virginia, where an office com-
plex and yard and shop area constitute the primary reporting
location for hourly employees now represented by the Union.
These employees are well tenders and pipeline and reclama-
tion workers.
At the time the Union filed its petition for representation
in March 1990, there were 25 well tenders, 23 of whom were
assigned to specific geographical areas or ‘‘ends.’’ Two other
well tenders (Ricky Hanifan and Rod Davis) were not perma-
nently assigned to an area but were used to fill in for other
well tenders during vacations and absences. Well tenders per-
form routine maintenance on gas wells, including changing
gas measurement charts, painting, maintaining pipelines and
grounds, as well as assisting other well tenders as assigned.
The supervisory status of Rod Davis and Rick Hanifan is a
subject of dispute in this proceeding.
737EQUITABLE RESOURCES ENERGY CO.
1 The facts set forth above are not in dispute or conflict in the
record.
Another group of production employees is the pipeline and
reclamation crew, which in March 1990, consisted of four
equipment operators, five roustabouts, a welder, and a truck-
driver.
A third group of employees called operators because they
operate six pieces of heavy equipment such as small dozers,
grader, and backhoe equipment in building and maintaining
well sites and location roads, backfilling, setting storage
tanks and dryers used in the installation and maintenance of
pipeline, and related functions.
Employees called roustabouts are general laborers who
perform various types of manual work as needed and as-
signed.
Drivers, who are sometimes assisted by operators, drive
three company trucks which haul dozers and other equip-
ment.
The welder does pipeline welding and other welding func-
tions, for which he must be ‘‘certified’’ by the owner of the
pipeline. Reclamation and pipeline employees may perform
work interchangeably, depending on their qualifications to
perform and the nature of the job to be performed.
At all times material, the following named persons occu-
pied the positions set opposite their respective names, and
are now, and have been at all times material, supervisors of
Respondent within the meaning of Section 2(11) of the Act,
and agents within the meaning of Section 2(13) of the Act:
Robert James Rose—Operations Superintendent
Ronald G. Bonnett—Operations Supervisor, Pipeline
and Reclamation
Everett ‘‘Dick’’ Leigh—Operations Supervisor, Well
Tenders
The following employees of Respondent constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All hourly employees including Truck Drivers, Roust-
about, Grader Operator Shop Laborer, Dozer Operator,
Mechanic B, Welder, Meter Tech Well Tender and
Well Tenders employed by the Employer at its
Buckhannon, West Virginia and Pennsylvania and New
York well tending sites but excluding office clerical
employees, janitorial employees and professional em-
ployees, guards and supervisors as defined in the Act.
The parties stipulated that only the operation at
Buckhannon, West Virginia, is involved in the instant dis-
pute.
The parties further stipulated that a petition for an election
in this matter was filed March 28, 1990, and the representa-
tion election was conducted by the Board on Friday, May 4,
1990.
Employees also stipulated that the Union was certified the
collective-bargaining representative of members in the above-
described unit on May 14, 1990.1
Motion to Correct the Transcript
Along with her brief, counsel for the General Counsel
filed a motion to correct the transcript with respect to various
numerical and word changes, spelling, punctuation, and in
other minor respects. No objections having been filed to her
motion and having noted that her requested changes are cor-
rect, her motion is granted and the transcript, accordingly
corrected.
B. The Supervisory Status of Ricky Hanifan and Rodney
(Rod) Davis
One of the issues presented for determination in this pro-
ceeding is whether Ricky Hanifan and Rod Davis are super-
visors and/or agents of Respondent within the meaning of the
Act.
Respondent’s Contention
According to the uncontroverted testimony of superintend-
ent James Rose, Ricky Hanifan, and Rod Davis perform all
duties designated in the job description of other well tenders
assigned in any geographic area, whenever the assigned well
tender is on vacation or absent. However, in addition to those
duties, Hanifan and Davis perform other shop duties such as
dispensing storeroom supplies, traveling out of town to re-
lieve work duties at other fields at times when their expertise
are needed. They also lead dozer operators to well sites and
acquaint themselves with the area and survey the damage, as
well as train well tender trainees, as other well tenders do.
They are paid the same pay other well tenders are paid.
The Respondent (Superintendent Rose) contends that these
duties, in addition to the general area assignment to all geo-
graphic work areas (ends) of Hanifan and Davis, do not
render them supervisors within the meaning of the Act. In
support of its position, Respondent cites NLRB v. American
Oil Co., 382 F.2d 786 (7th Cir. 1967), cert. denied 391 U.S.
906 (1968). However, the latter cited authority must have
been inadvertently miscited since it does not address the
issue of supervisory authority.
The Evidence
The uncontroverted evidence established that although
Ricky Hanifan and Rod Davis have worked in the past as
well tenders, and are presently classified as well tenders,
they, nevertheless, are the only well tenders who are not now
assigned to service a specific geographic area (end), as are
all other well tenders. Instead, both Hanifan and Davis travel
to any and all geographic work areas (ends) to assist or give
instructions to other well tenders, when they are needed or
when the supervisor for any given work area is not present.
They also fill in for other well tenders who are on vacation
or absent from work.
Lynn Miller, a well tender for Respondent for 8-1/2 years
testified that since the summer of 1988, Ricky Hanifan gen-
erally handed out the first paycheck of the month with work
gloves. Miller further testified he considered Hanifan a su-
pervisor because on one occasion Hanifan has given him in-
structions on how the new holiday would be handled with re-
spect to completing well tending monthly charts. He said
only supervisors usually gave such instructions.
While Hanifan may very well have instructed Miller on
how the charts were to be completed as the holiday was ob-
served, Miller did not testify that Hanifan was acting inde-
pendently, or whether he was following orders from a supe-
rior manager, as might have been the case.
738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Matthew Hamner, a former well tender and current equip-
ment operator, testified without dispute, that in the fall of
1988, during a meeting of well tenders at shop 2, Super-
intendent James Rose, while talking about responsibilities of
Ricky Hanifan and Rod Davis, told them to give both
Hanifan and Davis the respect they would give work area
Supervisor Dick Leigh; and that the employees should go to
them for help or supervision if they are available.
Joseph Montgomery has been in Respondent’s employee 8
years, the last 4 of which as a well tender. He testified he
considered Ricky Hanifan a well tending supervisor because
he is not assigned to any specific geographic area (end).
Montgomery also said he considered Hanifan a supervisor
because he, Hanifan, like other supervisors, has his choice of
the modern fully equipped air-conditioned trucks. However,
Respondent was able to explain without dispute that
Hanifan’s prior truck was replaced with the current one be-
cause replacement of his old truck was due, and the new one
is not equipped with air conditioning and cruise control as
Montgomery stated. In fact, Hanifan’s truck is not like other
supervisors’ trucks except that it is relatively new.
Employee Randall Shingleton, a welder helper-trainee, tes-
tified he considered Ricky Hanifan a supervisor because
work area Supervisor Ronald Bonnett told him (Shingleton)
and his coworkers, whenever their supervisor (Bonnett) is not
around, they must listen to Ricky Hanifan. Hanifan has in
fact given him instructions on what needed to be done.
Leonard Spotloe has been employed by Respondent 13
years as a well tender. He testified he believes Ricky
Hanifan is a supervisor because during a meeting in the sum-
mer of 1989, Superintendent Jim Rose told well tenders if
Ricky Hanifan or Rod Davis were in their work area (end)
and told them to do something, they were to do it. Also in
April 1990, Ricky Hanifan approached him with a paper he
was circulating and told him he (Hanifan) was circulating the
paper at shop 2 for employees to sign and let the Company
(Respondent) know where we stood with the Union and the
Company. Language appeared on the paper which read: ‘‘To
Let The Company Know that We are With The company and
Not for the Union.’’ Spotloe testified he signed the petition
to keep Hanifan from harassing him.
Spotloe acknowledged however, that Hanifan has not ever
given him any instructions and that Everett Leigh is his des-
ignated supervisor.
Correspondingly, Donald Detamora, a dozer operator and
roustabout for 5 years, testified that in the fall of 1989, he,
operator Tom Kelly, and Supervisor Bonnett were talking,
and Bonnett told them if Ricky Hanifan or Rod Davis were
in their work area and he (Bonnett) was not there, they were
to take orders from Hanifan or Davis. Both Hanifan and
Davis have acted as his (Detamora) supervisor a couple of
times, once in Kinchlow and over in Dolly Sods. Detamora
does not describe what orders Hanifan and Davis gave him,
or in what specific way and how long did Hanifan supervise
his (Detamora’s) work.
Ernest Johnston, a grader operator for Respondent 7 years,
testified he sustained an injury to his hand on or about
March 15, 1990, and thereafter performed light work in the
shop until he was laid off in May 1990. However, he said
he previously worked at Dolly Sods, where Ronnie Bonnett
was supervisor part of the time and Rod Davis the other part
of the time. Consequently, Johnston said he considered Davis
a supervisor. At times, both Supervisor Bonnett and Davis
would pitch in and work with their hands.
It is noted that Johnston also makes the general assertion
that Rod Davis supervised him a part of the time at Dolly
Sods without specifying what directions, instructions, or or-
ders Davis gave him, or how long he served in that capacity.
Additionally, employees Lynn Miller, Joseph Montgomery,
Randall Shingleton, Leonard Spotloe, and Donald Detamora
all testified that they considered Hanifan and Davis super-
visors for the reasons they stated above in their testimony.
Neither Ricky Hanifan, Rodney Davis, Richard Leigh, nor
Ronald Bonnett appeared or testified in this proceeding and
no plausible explanation was offered for their nonappearance.
However, since the testimony of Miller, Hamner, Mont-
gomery, Shingleton, Spotloe, Detamora, and Johnston con-
stituted conclusionary assertions of the supervisory status of
Hanifan and Davis, which are unsupported by necessary and
sufficient detail of what specific indicia of supervisory au-
thority Hanifan or Davis exercised, I cannot accept the
above-named employee witnesses’ conclusionary language of
supervisory status.
Conclusions
Section 2(11) of the Act defines a supervisor as:
[A]ny individual having authority, in the interest of the
employer to hire, transfer, suspend, layoff, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibility to direct them, or to adjust
their grievances, or effectively to recommend such ac-
tion, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical na-
ture, but requires the use of independent judgment.
Possession or regular exercise of any one or any combina-
tion of the above-stated powers of authority is sufficient to
confer supervisory status on an individual. NLRB v. Edward
G. Budd Mfg. Co., 169 F.2d 571, 576 (6th Cir. 1948), cert.
denied 355 U.S. 908 (1949).
The above testimony of employees Lynn Miller, Matthew
Hamner, Joseph Montgomery, Randall Shingleton, Leonard
Spotloe, Donald Detamora, and Ernest Johnston does not es-
tablish that Rick Hanifan or Rod Davis possessed any of the
usual indicia of supervisory authority, such as a combination
of authorities to hire, transfer, suspend, layoff, promote, dis-
charge, or discipline well tenders. Their undisputed testimony
does however establish that Hanifan and Davis had the re-
sponsibility and authority to direct their work, in the absence
of Supervisors Leigh and Bonnett, or whenever Hanifan or
Davis was in a given work area (end). Nor does the testi-
mony establish that Hanifan or Davis’ exercise of such lim-
ited authority was frequent, or not of a merely routine or
clerical nature, or that it required the use of independent
judgment.
It is true the Board has held, as the General Counsel ar-
gues, that an individual need only possess one element of in-
dicia of supervisory authority to be considered a supervisor
under the Act. Superior Bakery, 294 NLRB 256 (1989),
enfd. 893 F.2d 493 (2d Cir. 1990). However, it would appear
that the exercise of one such indicia of authority would not
include the irregular and temporary exercise of such author-
739EQUITABLE RESOURCES ENERGY CO.
2 All dates referred to occurred in 1990 unless otherwise indicated.
3 The above-described statements by Superintendent Rose were not
controverted. Consequently, since I was persuaded by the demeanor
of witnesses Hamner, Hinchman, Johnston, Detamora, and McClure
that they were testifying truthfully, I credit their respective and col-
lective accounts of Superintendent Rose’s remarks at the early
March meeting.
ity, or authority of a routine or ministerial nature which does
not require the use of independent judgment.
The credited testimony of record shows that Respondent’s
superintendent James Rose, in addressing the responsibilities
of Hanifan and Davis, told the employees to give Hanifan
and Davis the respect they gave to Supervisor Leigh, and to
go to them for help and supervision. Superintendent Rose
must have meant that the employees were to follow the in-
structions of Hanifan and Davis, in the absence of the work
area supervisor, because he certainly did not replace the
work area supervisors with Hanifan and Davis. Nor did he
designate either of the latter a supervisor. On the contrary,
as the uncontroverted evidence shows, both Hanifan and
Davis are well tenders. In fact they are Respondent’s most
experienced well tenders with the most expertise. They are
paid at the same rate of pay as Respondent’s other well
tenders, and as the other well tenders, they train and help
less experienced employees.
The evidence fails to show how frequently Hanifan or
Davis went to any of the geographic areas of work. Em-
ployee Matthew Hamner testified without dispute, that Davis
and Hanifan were rarely in his work area and that Supervisor
Leigh was in his (Hamner) work area about once a month.
He said he had never seen Superintendent Rose in his work
area. The evidence is uncontroverted that Hanifan and Davis
work in supplies in the shop when they are not in a work
area or out of town. Otherwise, the record is barren of any
evidence that Hanifan or Davis go to any work area fre-
quently, or how long they remain in a work area, except
when a work area supervisor or a well tender is on vacation
or absent, or when the job to be performed requires a second
man. Considering a work year, the above-described occasions
when Hanifan or Davis give routine directions to employees
in a work area would not appear to be frequent or regular.
Superintendent Rose testified that neither Hanifan nor
Davis has or actually exercised authority to hire, fire, dis-
cipline, layoff, recall, promote, or recommend promotion,
transfer, or assign work area of employees without directions
from management. He further testified that he could recall
only two occasions when Rod Davis was temporarily as-
signed to a job in Kentucky. On one occasion he was given
specific instructions from Supervisor Bonnett on what he was
to oversee and have the work crew do. The other occasion
was when Hanifan was assigned to Lewis County, Kentucky,
to oversee the routine proper placement of Hey by the work
crew. Each occasion involved a duration of 1–3 days. The
evidence does not show that either assignment required, or
that either Hanifan or Davis exercised independent judgment
in performing the assignments.
Consequently, when the evidence is viewed in its entirety,
it is clearly demonstrated, and I find, that Hanifan and Davis
were a part of the work unit of their fellow employees and
not supervisors within the meaning of the Act. This conclu-
sion is supported by the Board’s decision in UTD Corp., 165
NLRB 346 (1967); 118 NLRB 20, 25 (1957), in which the
Board said:
It is also necessary to note that Congress, in defining
the term ‘‘supervisor’’ did not include ‘‘employees with
minor supervisory duties.’’ Congress, distinguished be-
tween straw bosses, leadmen, set-up men and other
minor supervisory employees on the one hand, and the
supervisor vested with such genuine management pre-
rogatives as the right to hire or fire, discipline, or make
effective recommendations with respect to such acts.
At most, the evidence here demonstrates, and I find, that
Ricky Hanifan and Rodney Davis were at best, leadmen but
clearly not supervisors within the meaning of the Act.
C. The Organizing Activities of Employees and
Respondent’s Reactions Thereto
The evidence established without contradiction that in late
February or early March 1990,2 well tenders Lynn Miller and
Matthew Hamner contacted the Union about the prospects of
union representation of EREX’s employees for purposes of
collective bargaining. The union representative gave them
union literature.
Lynn Miller testified that while soliciting employees on
Respondent’s parking lot to sign union authorization cards in
early March 1990, he saw Superintendent James Rose watch-
ing the soliciting activities from his office.
Matthew Hamner testified that he was the contact man for
the Union. The union representatives would contact him and
he would distribute information to his fellow employees. He,
Joseph Montgomery, and other well tenders attended the first
union meeting held in early March 1990. Hamner was also
an observer for the Union during the election and is presently
president of the Union.
A day or two after the first union meeting in early March,
well tenders Hamner and fellow employees Charles
Hinchman, Ernest Johnston, Donald Detamora, and David
McClure testified that the Company called a meeting of 25–
30 employees, including operators, truckdrivers, roustabouts
and the pipeline crew. Present for management were Super-
intendent James Rose and Supervisors Ronnie Bonnett and
Danny Morgan.
Employee witnesses Hinchman, Johnston, and McClure es-
sentially corroborated Hamner’s account that Superintendent
Rose told the employees at the meeting that he did not think
a small company like Respondent would allow them to go
union; that the Company did not want a union and it may
hurt the employees because he did not think the employees
needed a union; if they voted in the Union, they may be laid
off, and Respondent would probably shut down for a year
and run the Company with supervisors—management per-
sonnel or subcontractors; that they (employees) would lose
their overnight use of company trucks; that a timeclock
would be installed and there would be no more 9-hour work-
days, only 8-hour workdays; that their overtime would be
eliminated and that when local Badges Coal Company shut
down, the Union was not able to do anything to help the em-
ployees (apparently suggesting a union would probably not
be able to help Respondent’s employees either).3
Matthew Hamner testified on cross-examination that when
Superintendent Rose talked to them in early March about the
use of company trucks, he was comparing the employees’
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
benefit of use of company trucks with employees at
Equittrans, which was unionized by the same union. Rose
pointed out that the employees at Equittrans did not have the
overnight use of Equittrans’ trucks but they were paid a little
more, and he did not know what would be the case at Re-
spondent if the employees voted in the Union. Hamner ac-
knowledged that management spoke at subsequent meetings
from a written outline or paper and some meetings were re-
corded on tape. However, employee David McClure does not
recall Robert Wallace having a pad, or a paper in his hand
or nearby, during the meeting on or about May 11, 1990.
Consequently, I find that the statements by Superintendent
Rose that if the employees voted in the Union, Respondent
would shutdown the business and/or subcontract the work,
clearly constituted a threat to shutdown the business and/or
subcontract the work because the employees engaged in
union activities.
The Board has repeatedly held that a threat to shutdown
a business in retaliation for employees engaging in union ac-
tivities is in violation of Section 8(a)(1) of the Act. Yellow-
stone Plumbing, 286 NLRB 993 (1987). Citing NLRB v.
Gissel Packing Co., 395 U.S. 575, 618 (1969), the Board
stated that ‘‘as long as the statements made were not a care-
fully phrased prediction based on objective facts which con-
veyed to employees the Employer’s belief as to demonstrably
probable consequences beyond his control,’’ the statements
were inherently coercive. Taylor Chair Co., 292 NLRB 658
(1989); SMCO, Inc., 283 NLRB 1291, 1295 (1987); Limpert
Bros., Inc., 276 NLRB 364, 374 (1985).
Since Respondent witnesses testified Respondent had no
intention of moving its plant and Superintendent Rose nor
other representatives of Respondent offered any objective
facts supporting Rose’s prediction of plant closure, I find
Rose’s statements had a coercive effect on the exercise of the
employees’ Section 7 rights, in violation of Section 8(a)(1)
of the Act.
Since Superintendent Rose also informed the employees if
they selected the Union as their bargaining representative,
Respondent would probably rescind their privilege of driving
their company truck home overnight, such announcement
constituted a coercive threat to withdraw that privilege in
violation of Section 8(a)(1) of the Act.
Superintendent Rose told the employees if they selected
the Union as their bargaining representative, Respondent
would install a timeclock. The Board has also held that
threatening employees with the installation of a timeclock
violates Section 8(a)(1) of the Act. Premiere Maintenance,
282 NLRB 10 fn. 3 (1986); Kenrich Petrochemicals, 294
NLRB 519 (1989). Since the employees here did not have
a timeclock, I find that Rose’s threat to install one under the
circumstances was coercive and in violation of Section
8(a)(1) of the Act. Premiere Maintenance, supra; Kenrich
Petrochemicals, supra.
Respondent’s (Superintendent Rose) telling the employees
if they selected the Union as their bargaining representative
their work hours would be cut from 9 to 8 hours a day,
eliminating the overtime they had worked for many years on
a regular basis, and they may be laid off, had a coercive ef-
fect upon employees’ Section 7 rights, and I find that such
statements constituted a violation of Section 8(a)(1) of the
Act. Romal Iron Works Corp., 285 NLRB 1178 (1978).
Threatening the employees if they selected the Union as
their bargaining representative, Respondent would sub-
contract their work, has a coercive effect on employees Sec-
tion 7 rights, and I find that by doing so, Respondent (Super-
intendent Rose) violated Section 8(a)(1) of the Act. SMCO,
Inc., supra at 1301.
Respondent’s Threat to Lay Off and its Interrogation
of Employees
Pipeline welder Randall Shingleton testified without dis-
pute that on or about March 5, a day or two after the first
union meeting, Supervisor Ronnie Bonnett asked Shingleton,
a welder setter, and roustabout employee Charles Malcolm to
shut down their truck for a minute, he wanted to talk to
them. They shut down the truck and Supervisor Bonnett said,
‘‘I wanted to know if you guys heard anything about a
union—paper going through or anything like that.’’
Shingleton said he told Bonnett he did not know anything
about the Union. Malcolm testified Bonnett asked him how
he felt about the Union and he told Bonnett he was in favor
of the Union but he did not know if a union would work
there. Supervisor Bonnett then told them he did not know
what they thought about the Union, but said, ‘‘I wouldn’t ad-
vise it,’’ if the employees went union they would probably
lose the use of their trucks for from home to work use, they
would probably not be allowed to cross job classifications
for work as they were presently allowed, and there would
probably be layoffs because Respondent would have to hire
more people and the Company would not stand for it.
Neither supervisor, Ronnie Bonnett nor Danny Morgan,
testified in this proceeding and no explanation was offered
for their nonappearance. Having been persuaded by the de-
meanor of Shingleton and Malcolm that they were testifying
truthfully, I credit their testimony.
Conclusions
Based on the foregoing uncontroverted and credited testi-
mony, I conclude and find that Respondent’s employees
commenced union organizing activities on or about March 1,
1990; that Respondent (Superintendent James Rose) observed
from his office, the unusual congregation of employees on
the Company’s parking lot and Matthew Hamner soliciting
employees to sign union authorization cards. Respondent’s
managerial personnel acknowledged Respondent learned
about the employees’ union activity in early March. Also, a
few days (1–3) after the first union meeting in March, Re-
spondent (James Rose) called an unexpected meeting of all
20 to 30 production employees along with management, and
talked against unionization of Respondent.
Thus, I conclude and find on the foregoing credited evi-
dence that it may be reasonably inferred from Respondent
having observed employee Hamner engaging in union solici-
tation activity, the interrogation of employees by Supervisor
Bonnett about the employees’ union interest and activities,
and the unexpected meeting called by James Rose to talk
against unionization, that prior to March 5, 1990, Respondent
knew that their employees were engaged in union organizing
activities.
Since Respondent had knowledge its employees were en-
gaged in union organizing activities, I further find on the
credited evidence that after learning of the employees’ union
741EQUITABLE RESOURCES ENERGY CO.
activities but not knowing whether Randall Shingleton and
Charles Malcolm were union supporters, Respondent (Super-
visor Ronald Bonnett) approached employees Shingleton and
Malcolm in the shop and asked them how they felt about the
Union—had they heard anything about it or the filing of pa-
pers (a petition).
Since Bonnett was the supervisor of Shingleton and Mal-
colm, he had control over their work and jurisdiction over
the shop where they were, and his status and control over
them was unquestionable. Neither Shingleton nor Malcolm
were known union supporters. Consequently, the cir-
cumstances under which Bonnett interrogated Shingleton and
Malcolm was necessarily coercive and in violation of Section
8(a)(1) of the Act. Bonnett did not assure either employee
against company reprisal for their union interest or activities.
Sunnyside Medical Clinic, 277 NLRB 1217 (1985); Taylor
Chair Co., 292 NLRB 658 (1989).
Leonard Spotloe testified without dispute that in April
1990 Supervisor Everett Leigh brought him a valve that he
had requested. While there and in the presence of well tender
Wamsley, Supervisor Bonnett told him he had just come out
of a supervisor’s meeting; that during the meeting, Super-
intendent James Rose told them he had five employees (Mat-
thew Hamner, Bob Stewart, Cliff Loudin, Randy Shingleton,
and Lynn Miller all union supporters), that he wanted to get
rid of, if the Union was not selected. Spotloe stated in his
affidavit given to the Board June 7, 1990, that he should
have gotten rid of Miller and Loudin years ago; that he want-
ed to find something on Miller to justify firing him. Spotloe
said Rose has not liked Miller for 2 years and Supervisor
Leigh did not say why Rose wanted to get rid of the five
named employees.
As previously stated, Supervisor Leigh did not appear and
testify in this proceeding and no explanation was offered for
his nonappearance.
At the conclusion of General Counsel’s presentation of her
case, and again in her posthearing brief, counsel for Re-
spondent moved to dismiss the substance of Spotloe’s testi-
mony as supportive of an allegation contained in paragraph
9 of the complaint. Counsel for Respondent contends his mo-
tion should be granted because Supervisor Leigh never stated
why Rose said he wanted to get rid of the five named em-
ployees. Although Rose did not like Miller, Leigh did not
state that Rose said he wanted to get rid of the five named
employees because of the employees’ union activity.
Although counsel for Respondent is correct that Leigh did
not state why Rose wanted to get rid of the five named em-
ployees, and Rose certainly did not say he wanted to get rid
of them for their union activity, Rose’s statements, as re-
ported by Leigh, nevertheless must be interpreted within the
context of the climate and setting in the plant at the time.
More specifically, it appears Rose’s statements about the
five employees were made within 3 to 4 weeks after the
onset of the employees’ union activities, and after Respond-
ent had received notice that the petition for certification was
filed. The statements attributed to Rose by Supervisor Leigh,
who reported them to employee Spotloe, were also made and
reported to Spotloe a few weeks after Superintendent Rose
gave his captive-audience threatening antiunion speech to the
employees in early March. Thus, under these circumstances,
I find that it may be reasonably inferred from the cir-
cumstances and Rose’s reported statement about getting rid
of five employees were in fact statements made by Rose, and
reported by Leigh to Spotloe, to intimidate the employees
(Spotloe, Wamsley, and the five named employees, all of
whom were union supporters). Since Rose did not specifi-
cally state why he wanted to get rid of the five employees,
it may be reasonably inferred from the recent organizing ac-
tivities at the plant that union activity was the implied reason
Rose wanted to get rid of them. Consequently, I further find
that Rose’s statement, although stated in the negative (that he
wanted to get rid of them if the Union was not selected),
nevertheless had a chilling and coercive effect upon the em-
ployees organizing activities, and was violative of Section
8(a)(1) of the Act.
In view of these findings, Respondent’s motion to dismiss
the designated portion of paragraph 9 of the complaint is de-
nied.
Solicited Employees to Sign a Petition
Paragraph 12 of the complaint alleges that in or about
March 1990, Respondent, through Supervisor Ricky Hanifan,
requested Respondent’s employees to sign a petition to in-
form the Respondent they were for the Company and against
the Union.
It is correct that the Board has upheld that an employer
violates 8(a)(1) of the Act by providing more than ‘‘ministe-
rial assistance’’ in the filing of a decertification or disaffec-
tion petition repudiating the Union. Walter Garson, Jr., &
Associates, 276 NLRB 1226 (1985). However, the evidence
in the instant case has failed to establish that Hanifan is ei-
ther a supervisor or an agent. Nor has it established that
Hanifan, as a leadman or agent, was circulating the petition
upon the suggestion or instigation or consent of Respondent.
The record shows that Hanifan was not supportive of the
Union and the petition he asked employees to sign might
have been his independent effort on behalf of management.
Under the latter circumstances, since Hanifan is not a super-
visor or an agent, and it has not been shown that he was act-
ing on the directions or approved consent of management,
his circulating the petition cannot be imputed to Respondent.
Consequently, the allegation in paragraph 12 of the com-
plaint is dismissed.
Paragraph 9 of the complaint, among other things, alleges
that Ricky Hanifan threatened employees with layoff if they
selected the Union as their bargaining agent. However, since
Hanifan has not been found a supervisor or agent of Re-
spondent herein, any threat made by him would not be im-
puted to Respondent. Consequently, the allegation in ref-
erence to Hanifan in paragraph 9 of the complaint is dis-
missed.
Did Respondent Deny an Employee Welding Training?
Paragraph 16 of the complaint alleges that since March 12,
1990, Respondent has denied Randall Shingleton the oppor-
tunity to receive promised training as a welder.
The evidence of record shows that in early 1990, Randall
Shingleton, a building maintenance employee, informed his
Supervisor David Dean that he wanted to work in other work
departments of the Company. Supervisor Dean informed Su-
perintendent Rose of Shingleton’s interest. Also in early
1990, pipeline welder James Rhinehart notified Respondent
he was leaving the Company. Superintendent Rose, knowing
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of Shingleton’s interest, informed Supervisor Dean of the ex-
pected opening and Shingleton applied for Rhinehart’s posi-
tion. Rose explained what the welding job involved.
Shingleton told Rose he had done some welding at home and
he was rusty, but he would try to learn the required skill as
quickly as possible, and Rose told him there would be a 90-
day probationary period. Shingleton promised Rose he would
practice on weekends and in the evenings on his own at the
shop until he got the hang of things again. Shingleton went
to work with welder Rhinehart for 2-1/2 days when
Rhinehart was sent to work in the field. Shingleton remained
in the shop to weld on his own.
The evidence is essentially uncontroverted that Rose used
his influence to have Shingleton admitted to a welding train-
ing class which was already in progress in mid-February,
until March 13, 1990, where Randall Shingleton received a
card-certificate. Shingleton acknowledged he stopped going
into the plant and practicing welding on his own. Charles
Malcolm testified he never saw Shingleton practicing. Safety
Inspector Stephen Andrews inspected several of Shingleton’s
welds and found them unacceptable. Shingleton was sent to
Clarksburg, West Virginia, at company expense to be tested
for certification twice, on May 15 and again on May 16,
1990. He failed the test each time. Shingleton acknowledged
that one cannot weld if not certified to weld.
Shingleton testified that one morning in April 1990, after
Shingleton discontinued practicing welding and had failed
the welding examination twice, Supervisor Morgan told him
he did not know what was going on ‘‘but they don’t want
you around the welding truck.’’ Shingleton was assigned to
roustabout work but continued to be paid at a welders wage.
Conclusion
The credited evidence fails to establish that the Respond-
ent denied Shingleton the opportunity to receive training as
a welder. To the contrary, the evidence shows that Respond-
ent was influential in getting Shingleton into a welder train-
ing class already in progress; that Shingleton did not attend
all of the remaining sessions of the class; that he started to
train in the shop on his own as he promised Superintendent
Rose, but also stopped training on his own; that his welding
was unsatisfactory and he was tested twice and failed each
time; and that he was thereafter assigned to roustabout work
while Respondent continued to pay him his higher welder’s
wage.
Under the foregoing circumstances, the evidence shows
that Respondent afforded Shingleton an opportunity to learn
welding and it appears Shingleton did not seriously take ad-
vantage of that opportunity, as he promised he would, by not
attending all classes of the training session and stopped going
into the shop and practicing on his own.
Consequently, the evidence fails to sustain the allegation
and paragraph 16 of the complaint is dismissed.
Did Respondent Refuse to Provide Employees
Work Gloves?
Paragraph 17 of the complaint alleges that since about
March 1990, Respondent withdrew benefits previously con-
ferred on employees by refusing to provide employees with
work gloves.
Well tender Lynn Miller testified that since the summer of
1988, Respondent, through Ricky Hanifan, handed out work
gloves with the employees’ first paychecks of the month
until union activity or the Union came in March–May 1990.
However, Leonard Spotloe testified Respondent furnished
employees with work gloves until the first payday in 1990.
He said he asked Hanifan where were the employees gloves
and Hanifan said there won’t be any gloves, but gloves were
given to three or four employees in May 1990, and all em-
ployees received gloves again in November 1990.
Since there is a discrepancy in the testimony of Miller and
Spotloe as to when Respondent ceased distributing work
gloves to employees, January or March 1990, I find this dis-
crepancy critical to a determination of the lawfulness of the
Respondent’s cessation of furnishing work gloves to employ-
ees. If distribution of work gloves stopped in January, this
was 3 to 5 months prior to union activity and the union elec-
tion. That being so, the cessation of distributing gloves could
not have been in retaliation of employees’ union activities
which did not commence until March 1990. Moreover, ac-
cording to Miller’s testimony, no explanation was given by
Respondent for discontinuing the distribution of work gloves.
Under these circumstances, the evidence has failed to estab-
lish that Respondent withdrew the benefit of distributing
work gloves to the employees because they engaged in union
activity.
Accordingly, paragraph 17 of the complaint is dismissed.
Did Respondent Refuse to Allow Employees to Drive
Their Trucks Home Overnight?
Paragraph 18 of the complaint alleges that in May 1990,
Respondent withdrew benefits previously conferred upon em-
ployees by refusing to allow employees to drive company
trucks home overnight.
No evidence was offered in support of paragraph 18 of the
complaint, that Respondent did in fact deny employees the
privilege of driving company trucks home overnight and
therefore, paragraph 18 is hereby dismissed.
Did Respondent Threaten Employees it Would Change
its Policy and Send Employees Home Early?
Paragraph 11 of the complaint alleges that Respondent
threatened employees it would change its policy regarding
sending employees home, if the employees selected the
Union as their bargaining representative.
In this regard, roustabout welder-helper Charles Malcolm
testified that after the first union meeting in early March
1990, Supervisor Ronald Bonnett told employee Malcolm if
the employees selected the Union as their bargaining rep-
resentative, the employees would be sent home when they
completed their respective jobs, instead of being assigned an-
other job function, as was the current practice. Supervisor
Bonnett did not testify in this proceeding and Malcolm’s tes-
timony is uncontroverted.
Since I was persuaded by the demeanor of Malcolm that
he was testifying truthfully, and because his testimony is
consistent with other unlawful conduct by Supervisor
Bonnett found herein, I credit Malcolm’s account in this re-
gard.
743EQUITABLE RESOURCES ENERGY CO.
Additionally, I further find upon the credited evidence that
Supervisor Bonnett’s threat to change Respondent’s policy of
assigning employees who completed their official work early
to other job assignments, rather than sending them home, has
a coercive effect upon employees’ Section 7 rights, in viola-
tion of Section 8(a)(1) of the Act.
Respondent Advised Employees that Other Employees
Were Watching a Union Supporter
Paragraph 13 of the complaint alleges that Respondent,
acting through Supervisor Everett Leigh, at Leigh’s resi-
dence, informed employees Respondent was more closely ob-
serving a union supporter.
Matthew Hamner served as the Union’s observer during
the election on May 4, 1990. Well tender Lynn Miller testi-
fied without dispute that a week later, on May 13, 1990,
while visiting Supervisor Leigh at his home, Leigh told em-
ployee Lynn Miller that nonunion supporters Ricky Hanifan
and Rodney Davis were watching Hamner, in an effort to
catch him doing something wrong. Leigh did not testify in
this proceeding and Miller’s testimony is uncontroverted in
this regard.
Since I was persuaded by the demeanor of Miller that he
was testifying truthfully, I credit his testimony, and find that
Supervisor Leigh’s telling Miller about Hanifan and Davis
watching known union supporter Hamner to catch him doing
something wrong had a chilling and coercive effect upon the
exercise of employees’ Section 7 rights, in violation of Sec-
tion 8(a)(1) of the Act.
Respondent Sent Employees Home Early
Paragraph 21 of the complaint alleges that in March 1990,
Respondent sent Charles Malcolm and Randall Shingleton
home early because of the employees’ union activities.
Randall Shingleton testified without dispute that at 9 a.m.
on March 12, 1990, Supervisor Ronald Bonnett approached
himself and Charles Malcolm and asked them what they had
left to do. They told him they had one more ‘‘T’’ to make
(welding). Bonnett said well, when you are finished, ‘‘just go
ahead and pack up and go home . . . we don’t have any-
thing else.’’ It was snowing slightly but the uncontroverted
evidence shows that prior to the employees’ union activity,
Respondent generally assigned employees to other work
when they completed their regular work before the end of an
8 hour workday. This practice was followed by Respondent
when work was slow or the weather was bad (rain, snow, or
slow work).
Since I was persuaded by the demeanor of Shingleton that
he was testifying truthfully in this regard, I credit his testi-
mony because it is also consistent with other evidence of
record.
Conclusion
It is particularly noted that Supervisor Bonnett, who has
been found involved in other unlawful 8(a)(1) conduct here-
in, was following through on Respondent’s (Superintendent
Rose) March 5 specific and implied general threats to with-
draw benefits and make working conditions less satisfying
for employees by sending them home whenever they com-
pleted their regular work before the end of the workday.
Since Bonnett sent Malcolm and Shingleton home early on
March 12, only 10 or more days after the employees com-
menced union activities, after Respondent’s threat to with-
draw employee benefits on March 5, and after Bonnett pre-
viously informed them they would be sent home early, I find
such action by Bonnett (Respondent) was an abrupt change
in Respondent’s practice of assigning employees to other
kinds of work rather than sending them home under the cir-
cumstances. Malcolm and Shingleton told Bonnett they had
another ‘‘T’’ to make, which means they had work to do
which Respondent permitted them to do prior to the union
activities of the employees.
Since Respondent did not controvert the above evidence,
I find that it may be reasonably inferred from such abrupt
change in the policy of transferring employees to other work
rather than sending them home, when they completed their
regular work assignment, was a retaliation against the em-
ployees because of the employees union activities. Such a
change constituted discrimination against employees for en-
gaging in union activity in violation of Section 8(a)(1) and
(3) of the Act.
Respondent’s Discipline of Matthew Hamner
Matthew Hamner credibly testified without dispute that for
1-1/2 years he had been stopping and picking up a hotdog
at a small concessionaire at a turnoff three-quarters of a mile
from the well he tendered. On April 23, 1990, Hamner
stopped at that store for a hotdog and the clerk told him they
did not have any. As he came out of the store he observed
Rod Davis driving by. He waved to Davis.
On May 7, 1990, Hamner stopped at the same conces-
sionaire to purchase a snack and was inside about 15 min-
utes. He said he did not see anyone from the Company as
he left but he was suspicious they were watching him.
On May 11, 1990, Hamner received the first and only rep-
rimand he had ever received from Respondent, when he was
informed of both incidents as follows:
To: Matthew N. Hamner
You are hereby notified of the following violations
of company policies:
1. Monday, April 23, 1990, your truck was observed
at the Midway Diner in Randolph County at 10:32 a.m.
o’clock.
You are hereby reprimanded for your conduct.
2. On Monday, May 7, 1990, your truck was ob-
served at the Midway Diner in Randolph County from
12:18 to 12:49 p.m. o’clock.
You are hereby reprimanded for your conduct.
You have been previously advised that you are not
permitted to be in restaurants during your workday.
You are hereby reprimanded for your conduct.
Further violations of this nature will result in dis-
ciplinary action taken against you, including possible
termination of employment.
Dated May 11, 1990, and signed by Superintendent James
Rose, notably, 7 days after the union election.
Well tender Leonard Spotloe testified that the Company
has had a policy that employees and their truck stay in their
end (area of work). He further testified that he has stopped
at food stores or restaurants during his workday at least once
a day for a snack and Supervisor Dick Leigh was with him
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on several occasions. He was never reprimanded for doing
so.
I credit the testimony of Leonard Spotloe not only because
I was persuaded by his demeanor that he was testifying truth-
fully but, also, because his testimony is not controverted by
the Respondent and it is consistent with other evidence of
record.
Conclusion
As previously found herein, Respondent’s Supervisor
Leigh told employee Larry Miller that nonunion supporters
Ricky Hanifan and Rodney Davis were watching ‘‘known
union supporter Matthew Hamner,’’ trying to catch him
doing something wrong. In fact, Hamner testified he saw
Rodney Davis driving by as he left the little restaurant and
he waved to Davis. Further supporting this conclusion is the
fact that Leonard Spotloe testified he occasionally stops in a
store to purchase something for lunch, sometimes in the pres-
ence of Supervisor Leigh. Nevertheless, he has never been
reprimanded or spoken to about such conduct. Supervisor
Leigh did not appear and testify in this proceeding and no
explanation was offered for his nonappearance. Since I was
persuaded by the demeanor of Spotloe that he was testifying
truthfully, I credit his testimony.
The record evidence shows that leadmen Hanifan and
Davis were opposed to unionization of Respondent. In fact
Hanifan even circulated a petition of disaffection among the
employees.
I therefore conclude and find on the foregoing credited
evidence, that it may be reasonably inferred from such evi-
dence that Davis and/or Hanifan had seen Hamner entering
or leaving the little food store, and reported their observa-
tions to management. Management in turn, knowing that
Hamner served as observer for the union during the election,
seized upon the report of Davis and/or Hanifan as an oppor-
tunity to lay a foundation for getting rid of Hamner, as Su-
perintendent Rose had previously informed Supervisor
Bonnett he desired to do. Thus, Superintendent Rose issued
a written reprimand to Hamner, whom he knew was a union
protagonist. Since Respondent has not uniformly enforced a
policy against employees for being out of their end (geo-
graphic work area) during work hours, the reprimand of
Hanifan for being three-quarters of a mile out of his area to
pick up something for lunch was obviously discriminatory
and in retaliation against him for his union activities, in vio-
lation of Section 8(a)(1) and (3) of the Act.
D. The Union Election and Events Which Followed
The Union’s International representative, Lawrence Abel
testified that he was assigned the task of organizing the Re-
spondent’s employees. Respondent’s management was in
contact with him from the time the petition for an election
was filed on March 28, 1990, until he went on disability
May 28, 1990. The union election was held May 4, 1990,
and the Union certified May 14, 1990.
Notice To The Union
Union Representative Larry Abel testified that the fol-
lowing letter from the Respondent’s manager, Will Hardman,
was read to him by the Union’s secretary on May 11, 1990:
Dear Larry:
In the interest of good faith communications, I am
informing you that due to lack of work for various rea-
sons, effective on Monday, May 14, 1990, ten or eleven
employees in the classifications of roustabouts, Bull-
dozer Operator, Welder, Truck Driver and Grader Oper-
ator will be laid off. This layoff will be effected on the
basis of Company seniority by classification.
Effective on or about June 30, 1990, some Well
Tenders will also be laid off as the result of decreased
work availability, including the loss of contracts for the
well tending services.
If you desire discussion regarding these matters,
please contact me. [G.C. Exh. 3.]
Hardman testified that he attempted to call Abel on May
10, and again on May 11, at which time he left a message
on Abel’s recorder that the layoffs advised in his letter (G.C.
Exh. 3) were in fact going to occur; that there were valid
business reasons for them; and that he requested Abel to call
him so he could explain and discuss the reasons. Abel re-
turned the call at 7:30 p.m. on May 11, 1990, during which
time both Abel and Hardman testified they had a bitter argu-
ment, which Hardman described started with Abel calling
Respondent a bunch of no good mother fuckers and domi-
nating the conversation with loud accusations that super-
visors unlawfully threatened employees; that there was going
to be a war, and the Union was going to harass management.
Abel acknowledged he invited Hardman outside, telling him
the Union would file with every agency. He promised to
have government investigators crawling all over the Re-
spondent’s place.
Abel testified he tried unsuccessfully to call Respondent’s
manager, Will Hardman, on May 11, 1990. Abel said he re-
calls a message on his recorder from Hardman on May 10,
1990, regarding whether or not to return his call but he could
not recall the substance of the recorded message. Although
the Union had not been certified at that time, Abel said he
felt Respondent had an obligation to call him.
Notice of Layoff
Roustabout Charles Hinchman, 18 years in Respondent’s
employ, testified that on May 11, 1990, Bob Wallace told
them they were laid off effective Monday morning, May 14,
1990; and that they had been doing makeup or catchup work
but Respondent had not gotten its point across to the em-
ployees.
Charles Malcolm, a roustabout welder-helper testified that
on May 11, they were advised they were laid off effective
as of May 14, 1990, for lack of work. He said he had not
noticed any reduction in available work prior to the layoff.
In fact, he said they worked overtime once or twice a week
with prior approval until the layoff.
The Union was certified the exclusive collective-bar-
gaining representative of Respondent’s employees on May
14, 1990.
The Company-Called Meeting of May 14
Matthew Hamner has worked for EREX since August
1980 and Lynn Miller has worked for Respondent 8-1/2
years. Both employees testified they attended a company-
called meeting of 20–22 employees on May 14, 1990. Super-
745EQUITABLE RESOURCES ENERGY CO.
intendent James Rose and Supervisors Ronnie Bonnett and
Dick Leigh were present for the Company.
Hammer and Miller testified that Superintendent Rose,
speaking for the Company, told the employees they were
going to start working 8-hour shifts instead of 9 hours, as
they had always worked and were paid for overtime up to
4 hours. Rose told them this was not his doing but because
of their union activity, company officials who had come
from Pennsylvania saw things they did not like; and that the
employees were responsible for the changes which included,
loss of overtime that they currently worked without prior ap-
proval; that the employees would lose the travel time from
home to work and from work to home but would receive pay
for time going from the shop to the field and from the field
to the shop; and that there would be no more paid holidays,
that the easy time, give time, was over. However, on the next
morning (May 15, 1990), Rose told the employees the can-
cellation of the well tenders longstanding ‘‘travel time’’ was
rescinded and the traveltime reinstated.
The above testimony of Miller and Hamner was essentially
corroborated by employee witnesses Joseph Montgomery,
Leonard Spotloe, and Clifford Loudin.
Only Matthew Hamner testified on cross-examination that
during the May meetings with employees, Respondent (Su-
perintendent Rose, Wallace, or Hardman) told the employees
they had the right to engage or not engage in union activi-
ties, or vote for the Union, and that the Company would not
retaliate against them in any way for their activities.
Respondent Informed Employees it was Observing
Union Supporter
Well tender Lynn Miller testified that on May 13, 1990,
Supervisor Everett Leigh told him it was pretty bad what
Ricky Hanifan and Rod Davis, nonunion supporters, were
doing to Matthew Hamner, a known union supporter—trying
to catch Hamner doing something wrong.
Hamner was an observer at the May 4 union election only
9 days earlier. Respondent (Supervisor Leigh), as well as
nonunion supporters Hanifan and Davis, knew that Hamner
was a leading union supporter.
Supervisor Leigh did not testify in this proceeding and I
was persuaded by the demeanor of Miller that he was testi-
fying truthfully in this regard. I therefore credit Miller’s testi-
mony.
Conclusion
It is noted that Supervisor Leigh did not state to Miller
why Hanifan and Davis were trying to catch Hamner doing
something wrong. Notwithstanding, Leigh’s statement to Mil-
ler on the heels of the union activity and the recent election,
and 1 day before the previously announced layoffs, had to
cause Miller, a union supporter, to know or believe that,
through leadmen Hanifan and Davis, Respondent would learn
if Hamner was in fact doing something wrong, as the record
shows Respondent later learned (Hamner was stopping in a
store during the workday).
Under these circumstances, I find that Supervisor Leigh’s
statement to Miller tended to have an intimidating and coer-
cive effect upon Miller’s employee’s right to organize, in
violation of Section 8(a)(1) of the Act.
Did Respondent Unilaterally Change its Holiday and
Overtime Policy?
It is alleged in paragraph 27 of the complaint that on or
about May 14, 1990, Respondent changed its overtime and
holiday policy.
Holidays
The allegation in paragraph 27 that Respondent unilater-
ally changed its holiday policy is predicated upon the testi-
mony of well tenders Matthew Hamner, Joseph Montgomery,
Leonard Spotloe and Clifford Loudin, that in the May 14
meeting with employees, Superintendent Rose announced
that there would no more paid or free holidays. The above-
named witness-employees testified that in compliance with
Superintendent Rose’s instructions, they would write in time
on their time cards that they did not work during a holiday
week. Superintendent Rose testified that he gave no such in-
structions to the employees, but, rather, he told them they
could work extra hours during the holiday week to make up
the time lost by the holiday. This practice is still in effect,
he said. Rose denied he told the employees on May 14 that
there would be no more free holidays because the employees
have not received paid holidays since January 1, 1989, when
the policy was changed to employees would not be paid for
holidays.
On cross-examination, Hamner agreed with Rose that Rose
did not tell the employees on May 14 that ‘‘there would be
no more holiday time or free holidays.’’ Moreover, Hamner
corroborates Superintendent Rose’s testimony that there has
been no change in Respondent’s holiday policy.
While the employees may have been writing in false time
that they did not work during a holiday week, the evidence
does not show that Respondent knew about the false time or
that the employees were actually paid for such time. The
General Counsel did not present any testimony or timecard
evidence to substantiate that the employees ever received ap-
proved paid holidays prior or subsequent to their union activ-
ity. Apparently, some of the employee witnesses were con-
fused by the questions propounded to them, or in their testi-
mony, confused about what Rose told them during the March
meeting with what was said during the May 14 meeting, con-
cerning an adjustment for holiday pay (authority from Rose
to work extra hours during the week to make up for the holi-
day of that week). The evidence does not show that the
privilege to work the extra hours during a holiday week to
make up for the holiday has been terminated.
Consequently, I do not find that on or about May 14, the
Respondent changed its holiday policy then, or anytime after
the employees commenced their union activities. Thus, to the
extent that paragraph 27 of the complaint alleges that Re-
spondent changed its holiday policy on May 14, paragraph
27 of the complaint is dismissed.
Overtime
With respect to the alleged May 14 termination of over-
time policy, Hamner testified that prior to May 14, employ-
ees working more than 8 hours a day did so with approval
of management, except, he said, employees in defined cir-
cumstances, had prior approval to work overtime if a well
was coming up late. In such case, he said the employees
were to stay with it, that Superintendent Rose told them
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘don’t shut it in, let it flow. If you get an extra hour don’t
worry about it. . . . we would rather get the well to flow
and you spending another hour out there, than have to go
back tomorrow and spend five more hours with it to get it
back up to the point of flowing.’’ As a result of Rose’s
above-quoted statements, Hamner said the employees always
tried to not get the wells to flow early so they could get ‘‘9
hours’’ a day.
On May 14, Hamner said Rose told them to shut the well
down at the 8-hour-a-day closing time. Rose did not deny
that he told the employees that. He testified that overtime
was denied on only two occasions after May 14.
David McClure’s testimony tends to corroborate Hamner’s
account. McClure testified that prior to May 14, he was as-
signed to work overtime ‘‘a few hours a week’’ on a regular
basis because it usually took an extra hour, over 8 hours, to
finish up a job. He and the other employees would remain
after the 8 hours and finish the job.
Conclusion
Based on the foregoing essentially uncontroverted evi-
dence, I find that on May 14, Respondent did alter its policy
or past practice of working an hour or so overtime rather
than shutting down wells that came up, by ordering that all
wells coming up be shut down at the end of the 8-hour shift,
rather than letting the wells run past the workday shift as
was the practice prior to May 14. To this limited extent, Re-
spondent did change its overtime work policy for employees
under these defined circumstances.
I further find that shutting down wells at the end of the
8-hour work shift apparently would deprive employees of
earning essentially one hour a day. Since the employees fre-
quently worked 9 hours a day, they may actually be deprived
of being paid for 5 hours a week and such a change in policy
amounts to a change in wages, hours, and terms and condi-
tions of employment, Venture Packaging, 294 NLRB 544
(1989), and therefore, constitutes a mandatory subject of bar-
gaining. Consequently, since Respondent announced the
change in its overtime policy on May 14, without notifying
the Union and affording it an opportunity to bargain on the
change, I find that Respondent has failed and refused to bar-
gain in good faith with the Union, the exclusive collective-
bargaining representative of its employees, in violation of
Section 8(a)(1) and (5) of the Act.
Did Respondent Subcontract and Have Supervisors
Perform Unit Work?
Well tender Matthew Hamner testified that after the em-
ployees were laid off on May 14, Respondent hired a sub-
contractor with a large Komatsu Dozer, with twice the push-
ing capacity, to perform 2 weeks’ work in Tyler County.
Hamner said Respondent has contracted for the larger dozers
prior to May 14 when it was absolutely necessary, but he did
not see any unusual reasons why the larger dozers were nec-
essary and hired in this instance. He said Respondent’s
smaller No. 9 dozer could have done the work as it has done
on prior occasions. Besides, the rate charge for smaller doz-
ers would be cheaper, since the Komatsu rented for $65 an
hour, while the smaller dozer rented for $45 an hour.
Hamner further testified without dispute that after the May
14 layoff, he saw bargaining unit work (roustabout, shop
labor, and pipeline work) being performed by Respondent’s
supervisors. The work involved was pumping a pit in Lewis
County, and unloading a truck of purchased used tanks.
Joseph Montgomery testified that since the May 14 lay-
offs, he has seen the work described in the receipt (G.C.
Exh. 4) dated July 4, 1990, performed by a hired outside
contractor. He said he has seen the same work listed in the
receipt (pulling slate trucks, cement trucks and redoing road
crossings performed with Respondent’s equipment by roust-
abouts and operators) prior to the May 14 layoff. The same
thing he said is true with respect to grading roads and repair-
ing creek crossings, putting in culverts, and spreading rock,
as listed in the receipt.
Roustabout Charles Hinchman was laid off May 14 but re-
called for 1 to 3 days a week. He testified that since the May
14 layoffs, he has seen well tenders Rodney Davis and Ricky
Hanifan in the yard and in the field performing unit work
such as hauling flow lines, ladders, all kinds of tools to per-
form work in the field, which were previously performed by
roustabouts and operators.
The testimony of Hamner, Montgomery, and Hinchman is
uncontroverted in the record. Since their account is consistent
with substantially most of the evidence in the record, and
since I was persuaded by their demeanor that they were testi-
fying truthfully, I credit their testimony.
Based on the foregoing credited evidence, I find that after
the layoffs on May 14, 1990, Respondent permitted its super-
visors and well tenders Davis and Hanifan to perform other
unit work of the laid off employees. I further find that Re-
spondent contracted for the performance of other unit work
of the laid off employees. These findings are consistent with
Respondent’s (Superintendent Rose) early March threat to
close down the plant and utilize supervisors and subcontrac-
tors to perform the work of unit employees.
Additionally, I find that Respondent contracted with third
persons and permitted supervisors to perform unit work of
the laid-off employees without prior notice to the Union and
without affording the Union an opportunity to negotiate and
bargain, as the exclusive bargaining representative of its em-
ployees, in violation of Section 8(a)(1) and (5) of the Act.
Conclusions
The General Counsel correctly argues that Respondent be-
came obligated to give notice and bargain with the Union on
its decision to lay off employees, and change its policy on
overtime and subcontracting when the Union won the elec-
tion (May 4). In Advertising Mfg. Co., 280 NLRB 1185
(1986); NLRB v. Laney & Duke Co., 369 F.2d 859, 866 (5th
Cir. 1966); Allis-Chalmers Corp., 286 NLRB 219, 222
(1987), the Board upheld a finding that unilateral changes in
terms and conditions of employment of employees (which
are mandatory subjects of bargaining), constitutes a refusal to
bargain in good faith that is not excused by the fact that the
changes occurred before certification of the Union.
Additionally, the Board has also held that an employer is
put on notice of the Union’s majority status upon the tally
of the ballots, and it is at this juncture that the obligation to
bargain attaches. Venture Packaging, supra; Westinghouse
Broadcasting & Cable, 285 NLRB 205, 212–213 (1987)
(where the Board held that the employer has an obligation
to bargain following the election, even before the issuance of
certification).
747EQUITABLE RESOURCES ENERGY CO.
Accordingly, I conclude and find that the Respondent had
a duty to bargain with the Union on its layoff decision and
overtime and subcontracting changes after the Union won the
election on May 4, 1990. Correspondingly, Respondent was
likewise obligated to give notice to the Union and afford it
an opportunity to bargain on its layoff decision and its unilat-
eral change of its overtime and subcontracting policy. Ven-
ture Packaging, supra; Westinghouse Broadcasting, supra.
Here, Respondent not only failed to notify and afford the
Union an opportunity to bargain on its layoff, overtime, and
subcontracting policy change decisions, but only 2 days be-
fore implementation of these changes Respondent presented
the Union with a fait accompli. Intersystems Design Corp.,
278 NLRB 759, 760 (1986).
Respondent argues, however, that it notified the Union 4
days prior to the layoffs that the layoffs would occur, but the
Union neglected to present any proposals to the Respondent.
In essence, Respondent appears to be contending that its no-
tice to the Union was timely.
However, it is noted that Respondent’s letter to the Union
(Abel) dated May 11, 1990, was a Friday. Apparently, the
earliest the Union could have received Respondent’s letter
(G.C. Exh. 3) by regular mail would have been Saturday,
May 12, or Monday, May 14, 1990. Saturday and Sunday are
generally nonbusiness days. Under these circumstances, I
find that Respondent’s notice by mail was not timely, be-
cause it did not afford the Union a reasonable time within
which to meet with its officer or committee persons and re-
spond with proposals to bargain, before the layoff was imple-
mented by the Respondent on Monday, May 14.
Although Respondent may have left a message of its lay-
off notice on the Union’s answering telephone recorder on
Friday evening, May 11, the following 2 days, Saturday and
Sunday, were not business days. It would be unreasonable to
expect the Union to have received the letter possibly on Sat-
urday and probably on Monday, and meet with its offices or
committee persons, discuss the matter and/or prepare pro-
posals, file a request and actually bargain with the Union be-
fore Respondent implemented its layoff, overtime, and sub-
contracting policy changes on Monday, May 14. Under such
circumstances, I find that Respondent’s written and telephone
notice to the Union about its layoff and policy changes were
not timely.
As the Board stated in upholding the judge in Ciba-Geigy
Pharmaceuticals Division, 264 NLRB 1013 1016 (1982):
The Board has long recognized that, when a union re-
ceives timely notice that the employer intends to
change a condition of employment, it must promptly re-
quest that the employer bargain over the matter. To be
timely, the notice must be given sufficiently in advance
of actual implementation of the change to allow a rea-
sonable opportunity to bargain. However, if too short a
time before implementation or because the employer
has no intention of changing its mind, then the notice
is nothing more than informing the Union of a fait
accompli.
Also, in Speciality Stamping Co., 294 NLRB 703 (1989)
where an employer failed to notify the Union of its plan to
lay off employees until the layoff was imminent, the Union
learning about the layoff 1 or 2 days before it was imple-
mented, the Board held there was no justification for the em-
ployer’s failure to notify the Union.
Based on the above-credited evidence and cited legal au-
thority, I find that Respondent has failed and refused to bar-
gain with the Union as the duly designated bargaining rep-
resentative of its employees on its decisions to layoff, and
change overtime and subcontracting policy, in violation of
Section 8(a)(1) and (5) of the Act.
The Layoffs
During the company-called meeting on Monday, May 14,
1990, 10 days after the Union won the election, Respondent
laid off the following employees assertedly for lack of work:
1. Charles Hinchman, roustabout, operator and truck driv-
er.
2. Randall Shingleton, welder trainee-helper.
3. Ernest Johnston, grader operator.
4. David McClure, a dozer operator, was laid off but re-
called to work May 17, 1990, and sent home for bad weath-
er. He has not been recalled to work since that time. He tes-
tified he did not notice any change in available work and he
worked a few hours overtime until he was laid off. He and
five other employees had previously been laid off for 26
days in 1986 by Union Drilling Company.
5. Donald Detamora, truck driver and dozer operator.
6. Charles Malcolm, a roustabout and welders helper.
This was the first layoff implemented by Respondent in
nearly 4 years.
International Representative Lawrence Abel testified he re-
ceived a telephone call from Lynn Miller on May 14 or 15,
1990, who told him that after a company-called meeting of
employees, Respondent had dropped the hatchet by advising
them of the elimination of holiday pay, the extra days work,
and several other employee benefits. Abel said he called
Hardman and told him he was very dissatisfied with what
was going on; that he felt the Respondent was violating the
employees’ rights under Federal law; that the Union intended
to go to war; and that Hardman told him the Union could
do ‘‘any damn thing we wanted to do,’’ that it was the Re-
spondent’s company and that was the decision that was
made. Abel said he had never been informed by the Re-
spondent about any of the policy changes announced to the
employees prior to the Respondent announcing them to the
employees on May 11.
With respect to Respondent’s asserted reason for the lay-
offs and lack of work, several employees testified about their
observations of available work prior to the layoff.
In this regard, roustabout Charles Hinchman testified he
noted little change in their workload prior to the May 14 lay-
off, and that they (the employees) continued to work 1 to 20
hours overtime prior to the layoff. He had never been laid
off by Respondent.
Truckdriver Donald Detamora testified he did not notice
any change in the amount of available work prior to the lay-
off. In fact, he said for 3 or 4 months prior to the layoff,
he worked up to 5 hours a week overtime. He has not been
laid off since 1985 at the Union Drilling Co.
Dozer operator David McClure testified he had not noticed
much change in available work prior to the layoff because
he worked a few hours a week overtime. He has not been
laid off since 1986 while he was at Union Drilling Co.
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Roustabout welder-helper Charles Malcolm testified he did
not notice any reduction in available work prior to the layoff.
In fact he said they worked preapproved overtime once or
twice a week.
The testimony of neither Hinchman, Detamora, McClure,
nor Malcolm was controverted and I was persuaded by their
demeanor that they were expressing their honest judgment.
Additionally, equipment operator Matthew Hamner testi-
fied that after the May 14 layoff, equipment operators’ work
was performed by well tenders, supervisors and outside con-
tractors. Some of such work Hamner said he observed being
performed was pumping a pit in Lewis County, and unload-
ing a truck of purchased used tanks.
Hamner further testified without dispute that work was
hired out or subcontracted to Heater Mecca and Dozer for
work performed 60 miles away in Tyler and Ritchie Coun-
ties, which had been done in the past only upon an urgency
or special circumstances, when Respondent’s heavy equip-
ment could not do the job. He did not believe special cir-
cumstances or an urgency existed in the latter situations.
Well tender Joseph Montgomery corroborated Hamner’s
account by testifying that the work listed in General Coun-
sel’s Exhibit 4 of pulling slate and cement trucks, and
redoing road crossings was previously done by Respondent’s
roustabouts and operators prior to the union activity and lay-
off. Those employees performed those jobs with Respond-
ent’s equipment. The same thing was true for grading roads,
repairing creek crossings, putting in culverts, and spreading
rock. The equipment Scott Heater used to perform the work
for which he was contracted described in General Counsel’s
Exhibit 4, was brought from Buckhannon, West Virginia,
where Heater lives.
Charles Hinchman testified without dispute that he has
seen well tenders Rodney Davis and Ricky Hanifan hauling
flowlines, ladders, and all kinds of tools to perform work in
the field, work previously done by roustabouts and operators.
The testimony of neither Hamner, Montgomery, nor
Hinchman was controverted by Respondent and I was per-
suaded by the demeanor of the aforenamed witnesses that
they were testifying truthfully.
Conclusion
Although employees of a business operation, such as Re-
spondent’s, may not be the most accurate source of the vol-
ume of work currently available, or in the near future, they
are, nevertheless, in a position to reasonably estimate the
adequacy of work available by reason of their presence on
the job and their familiarity with the work to be performed.
Workers Hinchman, Detamora, McClure, and Malcolm testi-
fied they had sufficient work at all times prior to the May
14 layoff, and I find upon their credited testimony that Re-
spondent was not lacking in work on May 14 for full-time
employment of the employees laid off. This finding is sup-
ported by the credited account of employees that they contin-
ued to work overtime each week for several years until their
layoff on May 14. Their account in this regard is supported
by the fact that Respondent had access to the hours of work
and pay records of each of the aforenamed employee wit-
nesses, but it made no effort to produce them to refute their
testimonial accounts.
Since the Respondent contends the employees laid off on
May 14 were laid off due to lack of work and not for their
union activities, the issues raised by Respondent’s defense
call for consideration of the Wright Line doctrine. Wright
Line, 251 NLRB 1083 (1980). There, the Board held ‘‘that
in such 8(a)(3) cases, the General Counsel must first make
a prima facie showing sufficient to support the inference that
protected concerted conduct was a ‘motivating factor’ in the
employer’s decision and once this is established, the burden
will shift to the employer to demonstrate that the same action
would have taken place even in the absence of the employ-
ees’ protected conduct.’’
Thus, the first question raised under the Wright Line doc-
trine here, is whether the General Counsel has made a prima
facie showing that Respondent’s layoff of the employees
would have taken place even if the employees were not en-
gaged in union activities.
In this regard, it has been found herein that Respondent’s
employees commenced union organizing activities on March
1, 1990, that Respondent learned about the employees’ union
activities on or about March 2; that on or about March 5,
a company-called meeting was held, during which Respond-
ent’s superintendent threatened employees with plant shut-
down for 1 year, layoff, loss of overnight use of company
trucks, the installation of a timeclock, a reduction in work
hours from 9 to 8 hours, elimination of overtime work with-
out prior approval, termination of assigning them work out-
side their classification, and subcontracting or allowing su-
pervisors to perform their work, if the employees selected the
union as their bargaining representative.
Also, in early March, Respondent, through its supervisors,
coercively and unlawfully interrogated employees about their
union interest and sympathies, and threatened them with lay-
off if they selected the Union as their bargaining representa-
tive.
The union election was held May 4, 1990, and the Union
won the election. Exactly 1 week later (Friday, May 11,
1990), Respondent, acting upon a report of supervisors
and/or nonunion supporter employees, unlawfully rep-
rimanded an employee who served as the union observer and
thereafter served as the elected president of the Union; that
on the same date (May 11, 1990), Respondent called a meet-
ing of its roustabout, pipeline, and equipment operator em-
ployees and, precipitously advised them that they were laid
off the following workday, Monday, May 14, 1990. Consid-
ering the timing of the layoffs, 1 week after the Union was
victorious in the election, in conjunction with Respondent’s
unlawful 8(a)(1) conduct between early March and May 14,
as found herein, I find that the General Counsel has sus-
tained its burden of establishing a prima facie showing, that
the employees’ union organizing activity was a motivating
factor in their layoff by the Respondent.
The General Counsel having established the required
prima facie showing, the burden (under Wright Line) now
shifts to the Respondent to demonstrate that the May 14 lay-
offs would have occurred even absent union activity by the
employees.
Respondent’s Defense
The Respondent argues however that by laying off its em-
ployees, and if it changed its overtime and holiday policies,
or actually subcontracted work without notifying the Union,
it nevertheless has neither violated Section 8(a)(1), Section
8(a)(3), nor Section 8(a)(1) and (5) of the Act. Instead, Re-
749EQUITABLE RESOURCES ENERGY CO.
spondent contends it merely exercised an entrepreneurial pre-
rogative, for compelling business and economic reasons, of
shifting the basic direction and nature of its enterprise from
drilling and pipeline work to servicing existing well-tending
accounts, as it is permitted to do under Otis Elevator II, 269
NLRB 891 (1984), and First National Maintenance Corp.,
452 U.S. 666 (1981). In the latter case, the Court held that
an employer is not obligated to bargain with a union over
its economically motivated decision to close a part of its op-
eration, even though such decision may have a substantial
impact on continued availability of employment. The Board
has followed the same principle in Chippewa Motor Freight,
261 NLRB 455 (1962); and U.S. Contractors, 257 NLRB
1180 (1981).
In First National Maintenance, supra, the employer was
providing housekeeping, cleaning, maintenance, and related
services to commercial customers at different locations.
When the weekly fee for services at one customer location
was substantially reduced by the customer, rendering per-
formance of the service nonprofitable for the employer, the
employer upon notice to the customer, terminated the service
and the employment of employees assigned to that customer
location. The Court held that the employer was not legally
bound to bargain with employees about its decision to dis-
continue service to the customer.
Although the employer’s decision had a direct impact on
employment, having inexorably eliminated some 35 jobs, the
Court said, citing its decision in Fibreboard Corp. v. NLRB,
379 U.S. 203 (1964), the employer’s decision was neverthe-
less a decision involving a ‘‘change in the scope or direction
of the enterprise,’’ akin to a decision whether to be in busi-
ness at all. The Court further noted that the dispute between
the employer and the customer was about a fee for services
to be paid by the customer over which the Union had no
control or authority.
With the above authority in mind, the Respondent sub-
mitted in support of its position, evidence of declining acqui-
sition of contracts for drilling and pipeline work, showing its
sales of wells and leases of wells.
In this regard, Respondent (Robert Wallace) testified that
he was aware of a decline in available work at Respondent
since March 1990. By early 1990, he said the salaried work
force of Respondent had been reduced. Since the splitup of
Union Drilling in 1989, Respondent does no drilling of wells
but simply maintains them and Robert Wallace assumed
extra duties as a result of lack of adequate management per-
sonnel. Respondent’s managerial witnesses testified that in
January 1989, well tenders ceased being salaried employees
from $362 a week to hourly employees at $8.62 per hour (R.
Exh. 16).
Superintendent Rose testified that in late 1989 and early
1990, most of the work of welding flowlines was petering
out. Respondent lost well tending work for 100 Miller wells
when Miller died.
A change in the frequency of changing and tending charts
from once every 7 days to twice every 31 days, decreased
the amount of work for well tenders.
Managerial witnesses further testified that the type of work
performed by employees Rhinehart, Shingleton, and Malcolm
petered out when the Barbour County and Dolly Sod prop-
erties were sold. By early 1990, Respondent was pretty much
caught up with the Beckley project in Lewis County. Em-
ployee, grader operator Ernest Johnston, testified that one of
the concerns of the employees in organizing was the number
of wells that were being sold.
Both Wallace and Superintendent Rose’s testimony is
uncontroverted and I was persuaded by their demeanor that
they were testifying truthfully.
Respondent’s uncontroverted evidence further shows that
after the acquisition of union drilling by EREX in 1984, Re-
spondent for business reasons, started to reduce promotional
drilling. Consequently, between 1984 and 1990, the number
of wells drilled decreased from 174 in 1984 to 5 in 1990.
The impact of the reduction in drilling resulted in a reduction
in available work for bargaining unit employees (pipeline
and reclamation crews), and generated a layoff in 1986.
Since 1984, 137 wells have been plugged or abandoned and
251 wells operated by Respondent were sold in 1988 and
1989. Nevertheless, after the 1986 layoffs, Respondent was
able to expand the pipeline and reclamation work force by
performing neglected work on well roads, pipelines, leak-
ages, setting tanks, digging moats, and correcting erosions.
Four new employees (Koon, Workman, Malcolm, and
Phillips) were hired in late 1988 or early 1989 to help per-
form the above-described work. They were told the work
would be performed on a project basis, which would run out
in 3 to 12 months. From 1988 to early 1989, pipeline and
reclamation crews and outside contractors were assigned to
install environmentally required tanks, construct a 6-mile un-
derground pipeline, and installation of well head compressors
in Dolly Sods, West Virginia, and maintain neglected wells
in Barbour County which was completed in October 1990.
The Question
The question raised by Respondent’s defense is whether its
evidence is sufficient to establish that the reason the Re-
spondent laid off the employees on May 14 was because of
a lack of work resulting from a shift in the direction and
scope of its business operations, by abandoning and selling
wells, and eliminating its drilling and pipeline operations.
It is clear from the credited evidence of record that since
1984, Respondent has been shifting the direction and scope
of its operations by eliminating the drilling of wells and
work essential thereto, and moving towards confining its
business operations to tendering wells. The evidence is
equally clear that Respondent’s operational changes resulted
in a corresponding decline in bargaining unit work, espe-
cially pipeline and reclamation work. What the evidence does
not establish, however, is that all pipeline and reclamation
work had in fact ran out on May 11 or 14, 1990, for the em-
ployees laid off on May 14.
More specifically, although Respondent’s evidence shows
that it sold wells and well leases in January 1990, it also
shows that its pipeline reclamation crew not only worked a
full-time week without interruption, but they also worked a
minimum of 1 hour overtime per day until they were laid off
May 14. So it is well established that the employees did not
experience any loss of worktime prior to May 14 even
though they were concerned about the number of wells being
closed by the Respondent. Respondent had not said anything
to the employees to indicate that the duration of their em-
ployment was imminent or approaching.
However, the record shows that Respondent’s employees
commenced union organizing activities on or about March 1,
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1990, and the Union won the election on May 4, 1990.
Seven days later, May 11, 1990, Respondent notified its
roustabouts (pipeline and reclamation crew) that they were
laid off, effective Monday, May 14. This is the first layoff
of employees since the 1986 layoffs.
Thus, it is particularly noted that no evidence was pre-
sented by Respondent to show that all work of the laid-off
employees had ran out on May 11. Nor was there any evi-
dence presented to demonstrate that any particular group of
wells were shut down or other identified business operations
suddenly discontinued on that date. The downsizing of Re-
spondent’s operation has been a gradual process over the past
5 or 6 years, with no foreseeable definitive ending by the
employees, or definitive ending indicated by the Respondent.
The employees worked full time and overtime straight up to
the time the layoffs were announced on Friday, May 11,
1990.
The Board has held that when an employer is aware of
union activity in its plant, as the Respondent was here, and
no creditable and legitimate explanation is presented for a re-
duction in force, it is reasonable to infer that the layoff was
motivated by the employees’ union activities. Dutch Boy,
Inc., 262 NLRB 4, 5 (1982); Fabricut, Inc., 238 NLRB 768,
769 (1987). In addition to such reasonable inference drawn
in the instant case is the cold evidence that shortly after Re-
spondent learned about the union activities of its employees
in early March, it called a meeting of the unit employees and
threatened them with plant closure, layoffs, and subcon-
tracting the work they performed if they selected the Union
as their bargaining representative. Although Respondent, in
subsequent meetings with the employees, told the employees
Respondent would not engage in any reprisals against them
if they selected the Union as their bargaining representative,
Respondent’s May 11 announcement of the layoffs is con-
sistent with its gloomy forecast given the employees in the
early March meeting. It is incomprehensible to disassociate
Respondent’s earlier threats from its current conduct of lay-
ing off the employees, even though Respondent tried to re-
pair the threats by a subsequent assurance against reprisal. In
fact it is clear that Respondent was following through on its
early March promise of layoffs, eliminating overtime and
subcontracting unit work. These results being so uniformly in
compliance with the March threats cannot be attributed to co-
incidence.
The above conclusion is further supported by the fact that
high-ranking Manager Robert Wallace told the employees on
May 11 that ‘‘they had been doing makeup or catchup work
but Respondent had not gotten its point across to the employ-
ees.’’ Under the circumstances in this case, it may be reason-
ably inferred from Wallace’s latter statement that ‘‘Respond-
ent had not gotten its point across to the employees,’’ meant
the employees had selected the Union in spite of Respond-
ent’s opposition to unionization and to threat of layoff of the
employees.
Respondent argues pursuant to First National Maintenance
Corp., supra, that Respondent had the entrepreneurial right to
change the direction and scope of its business operations by
eliminating its drilling and pipeline operations amid union
activity of the employees, without violating Section 8(a)(3)
of the Act. However, a clear examination of First National
Maintenance will reveal that the Supreme Court expressly
confined its decision to limited circumstances analogous to
those in First National Maintenance. There the employer ac-
tually terminated a part of its business services and the em-
ployment of the employees rendering services to that par-
ticular customer all at the same time. In the instant case, the
Respondent did not terminate a particular aspect of its oper-
ation at once, in which all of the laid-off employees were
working exclusively, because it would have been unprofitable
for Respondent to render any additional services. Respond-
ent’s downsizing of its operation was an ongoing process
with no definite point of cessation.
However, assuming that Respondent here did terminate a
particular aspect of its operation in which all of the laid-off
employees were employed, it is further noted that in First
National, the Supreme Court noted that the dispute in First
National was between the employer and the customer about
a fee contracted for the employers services, over which the
Union had no control or authority. Here, unlike there, there
was no contract dispute between the employer and a third
party customer, over which the Union would not have had
control or authority. Instead, here, the Union had a represent-
ative relationship with Respondent’s employees. In that ca-
pacity, the Union and the employees might have offered con-
cessions or other suggestions to Respondent which might
have averted their imminent layoff on May 14. By presenting
the Union with a fait accompli, the Union and the employees
were precluded an opportunity to intercede with the Re-
spondent in an effort to avoid the layoff on May 11, if not
avoiding the layoff indefinitely or for a considerably later
date. First National Maintenance, supra; Mashkin
Freightlines, 274 NLRB 427, 433 (1984).
Under the foregoing circumstances, I find that Respond-
ent’s May 14 layoff of the employees is not protected by
First National Maintenance which is distinguishable from,
and inapplicable to, the facts in the instant case. Con-
sequently, I further find the Respondent’s evidence fails to
establish that the employees laid off on May 14 would have
been laid off absent any union activity of the employees.
Having failed to establish such fact, Respondent’s evidence
has failed to rebut the General Counsel’s prima facie show-
ing that Respondent’s decision to lay off the employees on
May 14 was, in part, motivated by the employees’ union ac-
tivity, in violation of Section 8(a)(1) and (3) of the Act.
Mashkin Freight Lines, 272 NLRB 427 (1980).
Additionally, since Respondent reduced the overtime work
of employees, laid off the pipeline crew, contracted some of
the work, and permitted supervisors to perform unit work of
the laid-off employees, without first notifying the Union and
affording it a reasonable opportunity to bargain over these
decisional changes, I further find that Respondent has failed
and refused to bargain with the Union, as the bargaining rep-
resentative or its employees, in violation of Section 8(a)(1)
and (5) of the Act. Mashkin Freight Lines, supra at 433.
This conclusion and finding is not affected by the fact that
Respondent contends it told employee Malcolm he was hired
for 3 to 12 months. It is not shown when the 12 months
would have started to run and Malcolm was still a part of
the unit.
IV. REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices warranting a remedial order, I shall rec-
ommend that it cease and desist from engaging in such con-
751EQUITABLE RESOURCES ENERGY CO.
duct, and that it take certain affirmative action designed to
effectuate the policies of the act.
Having found that Respondent has coerced and restrained
its employees by engaging in numerous threatening, interro-
gating and intimidating conduct in violation of Section
8(a)(1) of the Act; that Respondent has made several unilat-
eral changes affecting mandatory subjects of bargaining,
thereby failing and refusing to bargain in good faith with the
duly designated collective-bargaining representative of its
employees, in violation of Section 8(a)(1) and (5) of the Act;
and that by laying off several of its bargaining unit employ-
ees because they engaged in union activity, in violation of
Section 8(a)(1) and (3) of the Act, the recommended Order
will provide that Respondents cease and desist from engag-
ing in such unlawful conduct, and that it take certain affirma-
tive action to effectuate the policies of the Act.
Because of the character of the unfair labor practices here-
in found the recommended Order will provide that Respond-
ents cease and desist from or in any like or related manner
interfering with, restraining or coercing employees in the ex-
ercise of their rights guaranteed by Section 7 of the Act.
NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir.
1941), and New Horizons for the Retarded, 283 NLRB 1173
(1987), except as specifically modified by the wording of
such recommended Order.
CONCLUSIONS OF LAW
1. Respondent Equitable Resources Exploration, a division
of Equitable Resources Energy Co. is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union, Oil Chemical and Atomic Workers Inter-
national Union, AFL–CIO, is and has been at all times mate-
rial, a labor organization within the meaning of Section 2(5)
of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All hourly employees including Truck Drivers, Roust-
about, Grader Operator Shop Laborer, Dozer Operator,
Mechanic B, Welder, Meter Tech Well Tender and
Well Tenders employed by the Employer at its
Buckhannon, West Virginia and Pennsylvania and New
York well tending sites but excluding office clerical
employees, janitorial employees and professional em-
ployees, guards and supervisors as defined in the Act.
4. By threatening employees the plant would close if the
employees selected the Union as their bargaining representa-
tive, Respondent violated Section 8(a)(1) of the Act.
5. By threatening employees Respondent would withdraw
their privilege of driving their trucks home overnight, Re-
spondent has violated Section 8(a)(1) of the Act.
6. By threatening employees Respondent would install a
time clock if the employees selected the Union as their bar-
gaining representative, Respondent violated Section 8(a)(1)
of the Act.
7. By threatening employees that their overtime would be
cut if they selected the Union as their bargaining representa-
tive, Respondent violated Section 8(a)(1) of the Act.
8. By threatening employees that their work would be sub-
contracted or performed by supervisors if they selected the
union as their bargaining representative, Respondent violated
Section 8(a)(1) of the Act.
9. By interrogating employees about their union interest
and union activities, Respondent violated Section 8(a)(1) of
the Act.
10. By threatening employees Respondent wanted to get
rid of a known and other suspected union supporter employ-
ees, Respondent violated Section 8(a)(1) of the Act.
11. By threatening to send employees home when they
complete their regular job functions instead of assigning
them to another job function, as was the current practice, be-
cause the employees engaged in union activity, Respondent
violated Section 8(a)(1) of the Act.
12. By threatening employees that nonunion supporter em-
ployees were watching a known union supporter to catch him
doing something wrong, Respondent violated Section 8(a)(1)
of the Act.
13. By unilaterally changing its policy or past practice of
allowing employees to work 9, rather than 8 hours a day,
without notifying and affording the Union an opportunity to
bargain on the decision, Respondent violated Section 8(a)(1)
and (5) of the Act.
14. By unilaterally contracting out and permitting super-
visors to perform unit work of the laid-off employees without
notifying the Union and affording it an opportunity to bar-
gain on its decision, Respondent violated Section 8(a)(1) and
(5) of the Act.
15. By failing to timely notify the Union and afford it an
opportunity to bargain on its layoff, and policy changes on
overtime and subcontracting unit work, Respondent violated
Section 8(a)(1) and (5) of the Act.
16. By disciplining an employee by issuing him a written
warning because he is a leading union supporter, Respondent
violated Section 8(a)(1) and (3) of the Act.
17. By discriminatorily laying off employees Charles
Hinchman, Randall Shingleton, Ernest Johnston, David
McClure, Donald Detamora and Charles Malcolm, Respond-
ent violated Section 8(a)(1) and (3) of the Act.
18. By failing and refusing to bargain with Oil Chemical
and Atomic Workers International Union, AFL–CIO, as the
exclusive representative of its employees in the appropriate
unit, Respondent has violated Section 8(a)(1) and (5) of the
Act.
19. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omited from publication.]