Gurley Refining Co.

National Labor Relations Board - Board Decisions

Jul 30, 1987

285 N.L.R.B. 38 (N.L.R.B. 1987)

38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
W. M. Gurley, L. M. Gurley, and Betty Gurley,
d/b/a Gurley Refining Company and General
Drivers, Salesmen, & Warehousemen's Local
Union No. 984, affiliated with the International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America . Case 26-CA-
11608 -
John Goree, Esq., for the General Counsel.
Stephen Biller, Esq. (Heiskell, Donelson, Bearman, Adams,
Williams & Kirsch), of Memphis, Tennessee, for the
Company.
Arthur B. Crutcher, Vice President, of Memphis, Tennes-
see, for the Union.
DECISION
30 July 1987
DECISION AND ORDER.
By CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFT
On 28 January 1987 Administrative Law Judge
William N. Cates issued the attached Decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of
the judge's Decision.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings, I and
conclusions, to modify his remedy, 2 and to adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, W. M.
Gurley, L. M. Gurley, and Betty Gurley, d/b/a
Gurley Refining Company, West Memphis, Arkan-
sas, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
1 The Respondents have excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cit.
1951) We have carefully examined the record and find no basis for re-
versing the findings
In agreeing with the judge that the Respondents' personnel manager
unlawfully solicited grievances, we rely on the fact that the solicitation
was made in an effort to dissuade employee Rains from joining the
Union. We do not rely on the judge's reference to the filing of a decerti-
fication petition
Member Cracraft, who did not participate in Sunnyvale Medical Clinic,
277 NLRB 1217 (1985), finds it unnecessary to rely on that case in adopt-
ing the judge's finding that the Respondents violated Sec. 8(a)(1) when
Helton interrogated Rains about the Union.
2 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be computed at the "short-term Fed-
eral rate", for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C § 6621 Interest on amounts accrued prior to 1 January
1987 shall be computed in accordance with Florida Steel Corp., 231
NLRB 651 (1977)
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This
matter was tried in Memphis, Tennessee, on 13 and 14
August 1986.1 The charge was filed on 29 April by Gen-
eral Drivers, Salesmen, & Warehousemen's Local Union
No. 984, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America (Union). The resulting complaint issued on 23
May was amended during the trial and alleges that
W. M. Gurley, L. M. Gurley and Betty Gurley, d/b/a
Gurley Refining Company (Company) violated Section
8(a)(1) and (3) of the National Labor Relations Act
(Act). More specifically, it is alleged that the Company
violated Section 8(a)(1) of the Act about January by in-
terrogating its employees concerning their union mem-
bership, activities, and sympathies and by soliciting em-
ployee complaints and grievances and promising in-
creased benefits and improved terms and conditions of
employment. Further, it is alleged the Company violated
Section 8(a)(1) of the Act about 25 April by removing
from employees' lockers union literature distributed by
its employees and by informing an employee about 29
April that the employee was being discharged because of
his union membership, activities, and sympathies and be-
cause of the union membership, activities, and sympa-
thies of his fellow employees. Finally, it is alleged the
Company violated Section 8(a)(3) and (1) of the Act
about 29 April when it suspended its employee John
Rains and discharged its employee J. C. Adams because
they joined, supported, or assisted the Union and en-
gaged in concerted activities for the purpose of collec-
tive-bargaining or other mutual aid or protection and in
order to discourage employees from engaging in such ac-
tivities.
I conclude below, after examining the relevant evi-
dence and applicable legal principles, that the Company
violated the Act substantially as alleged in the complaint.
1. JURISDICTION
The Company is a partnership with an office and place
of business located in West Memphis, Arkansas, where it
is engaged in the wholesale distribution of automotive
petroleum products. Annually, the Company in the
course and conduct of its business operations sold and
shipped from its West Memphis, Arkansas facility prod-
ucts, goods, and materials valued in excess of $50,000 di-
rectly to points outside the State of Arkansas .2 Addition-
1 All dates hereinafter are in 1986 unless otherwise indicated.
2 I note that the complaint at paragraph 3(a) alleges that the products,
goods, and materials were shipped directly to points outside the State of
Tennessee I do not find this inadvertent error to impact on the jurisdic-
tional findings made herein.
285 NLRB No. 4
GURLEY REFINING CO. 39
ally, the Company purchased and received at' its West
Memphis, Arkansas location goods and materials valued
in excess of $50,000 directly from points outside the
State of Arkansas. The complaint alleges, the Company
admits, and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
It. LABOR ORGANIZATION
The complaint alleges, the parries admit, and I find the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company is a partnership that employs approxi-
mately 150 employees at its West Memphis, Arkansas fa-
cility. The Company has been in the wholesale distribu-
tion of automotive lubricants for approximately 25 years.
The Company distributes two classes of products. It pur-
chases major brands of lubricants in prepackaged con-
tainers, such as quart containers of motor oil, and resells
the items on a wholesale basis. Secondly, the Company
makes bulk purchases of lubricants and then packages
and resells the products under its own labels. The Com-
pany is divided into certain departments or operations,
namely, the warehousing operation, the trucking oper-
ation, the administrative staff operation, and the diesel
shop operation. The diesel shop operation will be most
prominent in the instant case because the alleged viola-
tions of the Act pertain to or are involved with the su-
pervisor and employees of the diesel shop. At all times
material Carl Duncan has been the supervisor of the
diesel shop employees. Duncan in turn reports to the
president and owner of the Company, Harry Gurley.
Other supervisory personnel are Assistant to the Presi-
dent and Personnel Manager Raymond E. Helton Jr.,
Warehousing Supervisor Mario Baratti, and Director of
Transportation Don Mulvaney. Alleged discriminatees
J. C. Adams and John Rains are or were mechanics in
the diesel shop under the supervision of Duncan.
The Union has represented the production and mainte-
nance employees, warehouse employees, and all over-
the-road as well as local truckdrivers of the Company at
least since 1978. Business Agent Arthur Crutcher is the
official who handles the Union's relations with the Com-
pany. On 21 February Kenneth Ferrell, an individual,
filed with the Board's Regional Office in Memphis, Ten-
nessee, a decertification petition (Case 26-RD-705) and,
as a result , an election was held on 11 and 12 April that
resulted in 59 employees voting for and 25 employees
voting against continued representation by the Union.
There were no void or challenged ballots cast. Adams
served as an observer for the Union at that election. On
21 April the Board issued a certification of representa-
tive. On 25 April the Company removed notices of a
union meeting from its employees' lockers. These notices
had been placed in the lockers by Rains. On 29 April
Rains was given a 3-day suspension for his role in plac-
ing the notices in the lockers and on that same date
Adams was discharged for borrowing a dolly from the
Company.
B. The Alleged Interrogation and Solicitation of
Grievances by Helton
It is alleged at paragraph 7 of the complaint that, in
January, Assistant to the President and Personnel Man-
ager Helton interrogated employee Rains concerning his
union membership, activities, and sympathies and that
Helton solicited from Rains any complaints and griev-
ances he might have and promised increased benefits and
improved terms and conditions of employment in viola-
tion of Section 8(a)(1) of the Act.
Rains, a 5-year employee of the diesel shop, testified
that in January or possibly early February3 Helton ap-
proached him in the trailer bay area of the shop where
they spoke for 3 or 4 minutes. Other diesel shop mechan-
ics were in the area but were not within "earshot" of the
conversation. According to Rains, Helton told him that
he had heard Rains was going to join the Union and
Helton wanted to know why after such a long period of
employment he, Rains, would want to do such a thing.
Rains told Helton he was tired of the way he and his
fellow workers were being treated in the diesel shop and
that seemed to be the only thing he could do about it.
Helton told Rains he did not really see how it would be
in Rains' best interest to do so and added that "changes
needed to be made" and the Company was "working on
some changes." During the conversation Helton told
Rains to do what he thought was right and Rains told
Helton he would.
Helton had no recollection of any meeting with Rains
in January concerning Rains' intentions with respect to
the Union. Helton did recall a conversation with Rains in
the bay area at the plant that took place sometime earlier
than January, even possibly before Thanksgiving or
around the first of November 1985. Helton stated, on
direct examination, that he spoke with Rains because he
had heard a "scuttlebutt rumor" that Rains was tremen-
dously upset with the Company and that he, as personnel
manager and assistant to the president, wanted to know
why. Helton testified Rains said he was upset about the
way the mechanics were called out after hours for spe-
cial jobs. Helton stated Rains thought the "callouts"
should be on a rotating basis rather than by seniority.
Helton stated it was Rains who said he was so upset that
he was thinking about joining the Union, Helton asserts
he told Rains it was Rains' decision and that he should
do whatever he thought was best for himself and then
added that Rains had been with the Company for a long
time and Helton did not see any cause for Rains to join
the Union because the issues he raised were, in part,
being addressed by the Company. Helton stated he told
Rains he could not promise him anything but that the
Company tried to address issues as they were raised. Ac-
cording to Helton the meeting was "very short," but he
did not know if it lasted 3 or 5 minutes.
8 Rains stated he was sure the conversation took place before March
when he joined the Union
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Rains impressed me' as a witness who was attempting
to tell the truth. Accordingly, I credit his testimony, par-
ticularly his account of the conversation he had with
Helton that he asserts took place in either January or
early Feburary. There are several factors that persuade
me that my observations regarding Rains' truthfulness
are correct. Helton did not deny that a conversation
took place in January; he simply stated he could not
recall any such conversation. Helton had selective recall
at times. He could, for example, recall an earlier conver-
sation with Rains, but he could not recall who informed
him of the "scuttlebutt" that caused him to have his con-
versation with Rains. He could not even recall if the
"scuttlebutt" came to his attention from a supervisor or
an employee. Helton could not even recall that the
"scuttlebutt" he heard involved the possibility that Rains
might be considering joining the Union until he was con-
fronted with his pretrial Board affidavit. He then ac-
knowledged he had stated in his pretrial Board affidavit,
dated 13 May, that he had told Rains he had heard Rains
was upset about some things to the point of considering
joining the Union. Helton, during the trial, recalled the
conversation as having been very short, lasting 3 to 5
minutes, "or something like that." However, he acknowl-
edged that in his pretrial Board affidavit he had recalled
the conversation as having lasted 15 minutes. Simply
stated, Helton's recollections are too inaccurate to be re-
liable, particularly when they conflict with Rains' ac-
count of their conversation.
The first question to be considered is did Helton's
comments, as testified to by Rains, constitute unlawful
interrogation? The Board, in Rossmore House, 269 NLRB
1176 (1984), enfd. sub nom. Hotel & Restaurant Employ-
ees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), re-
iterated its longstanding test of looking at the totality of
the circumstances in evaluating whether interrogations
violate the Act. The Board, in Rossmore House, above
made it clear it was rejecting a per se approach to al-
leged interrogations in general and was returning to a
case-by-case analysis that took into account the circum-
stances surrounding any alleged interrogations and that
did not ignore the reality of the workplace. The Board
outlined some areas of inquiry that it said may be consid-
ered in applying its totality of the circumstances test; but
it warned there could be other relevant factors that
would need to be considered, and admonished that the
factors it did list were not to be mechanically applied in
each case. The Board mentioned the background, the
nature of the information sought, the identity of the
questioner, and the place and method of interrogation as
factors to be considered. The Board, in Sunnyvale Medi-
cal Clinic, 277 NLRB 1217 (1985), indicated the totality
of test circumstances regarding interrogations would be
applied even in those situations where the one being
questioned was not an open and active supporter of the
Union.
I am persuaded Helton's questioning of Rains had a
reasonable tendency to interfere with, restrain, and
coerce him in the exercise of his rights guaranteed by
Section 7 of the Act and as such the questioning violated
Section 8(a)(1) of the Act. First, Rains was not an open
and' active supporter of the Union at the time the conver-
sation took place. Second, Helton sought Rains out and
initiated the conversation including his stating to Rains
that he had heard Rains was considering joining the
Union, a comment that Helton knew would likely bring
a response from Rains about his union sympathies. Third,
there is no showing that Helton and Rains were, or for
that matter ever had been, friends such that it might be
expected that they would discuss such matters. Fourth,
Helton not only wanted to know whether Rains was
considering joining the Union or not, but he also wanted
to specifically know why a long-term employee like
Rains would want to do such a thing. Fifth, Helton was
a top-level management official (assistant to the president
and personnel manager) who did not supervise Rains on
a daily basis. On balance, I am persuaded Helton's ques-
tioning of Rains amounted to unlawful interrogation and
I so find.
Next, I turn to the closer question of whether, as al-
leged in the complaint, Helton solicited complaints and
grievances from Rains and promised increased benefits
and improved terms and conditions of employment to
Rains.
The solicitation of grievances during an organizational
campaign , accompanied by a promise , expressed or im-
plied, to remedy such grievances, violates the Act. It is
the promise, expressed or implied, to remedy the griev-
ances that consititutes the essence of the violation. In
Methodist Nursing Home of Enid, 272 NLRB, 34, 36
(1984), it was held that grievance solicitation in the midst
of a union campaign inherently constitutes an implied
promise to remedy the grievances. See also Houston
County Electric Cooperative, 247 NLRB 579, 584 (1980),
and the cases cited therein.
Turning to the instant facts it is clear Helton wanted
to know why Rains would consider joining the Union,
and after he learned Rains' reasons involved working
conditions in the diesel shop, he told him the Company
knew changes needed to be made, and stated the Compa-
ny was working on some changes. The implication is
clear. Helton was telling Rains he did not need to join
the Union, and that his work-related complaints and
grievances could and would be corrected by the Compa-
ny without his joining the Union. That Helton was solic-
iting grievances during a union campaign is without
question. Helton's opening comments to Rains were why
would he consider joining a union and shortly after the
conversation a decertification petition was filed. In sum-
mary, I am persuaded Assistant to the President and Per-
sonnel Manager Helton, in violation of Section 8(a)(1) of
the Act, solicited grievances from employee Rains
during an active union campaign and promised to
remedy at least some of Rains' grievances.
C. The Removal of Union Literature from Employees'
Lockers and the Suspension of Employee Rains
It is alleged at paragraph 8 of the complaint that the
Company about 25 April, acting through its local driv-
ers' supervisor, W. J. Flynn, removed from employee
lockers union literature distributed by its employees.
GURLEY REFINING CO.
The Company admits Flynn removed union literature
from its employees' lockers pursuant to instructions from
a top-level manager at the Company.
It is alleged at paragraph 10(a) of the complaint that
about 29 April, the Company suspended (for 3 days) its
employee Rains.
The Company admits Rains was suspended for his role
in placing union literature in the employees' lockers;
however, it denies its actions violated Section 8(a)(3) and
(1) of the Act.
Rains testified he took his afternoon break on Friday,
25 April, a little later than the other shop employees, be-
cause he was busy on a particular job.4 Rains stated that
by the time he arrived in the break area the other shop
workers were already seated around the break table.
Rains testified that someone (not further identified)
brought him some handbills5 and he gave a copy to ev-
eryone at the break table. Rains then left the break table
and went to his toolbox where he folded copies of the
handbills and then placed one copy in each of the dnv-
ers' lockers by slipping them through the ventilating
holes in the top of the lockers. Rains said he did this im-
mediately after his fellow shopworkers returned the
break table to the place where it was supposed to be and
left the area. Rains stated that after he 'finished placing
the handbills in the lockers he got a drink of water and
returned to work. Rains stated lie "absolutely" felt he
placed the handbills in the lockers during his breaktime
because he started his break later than his fellow shop-
workers on the day in question and he added he was
only on break for 10 to possibly 12 minutes at most.7
Rains stated he had never heard of any rule prohibiting
the distribution of literature. Rains said he had in the
past placed materials such as notes about vehicle repairs
in the drivers' lockers.8
4 Supervisor Duncan testified shop employees could take their break
tunes whenever it was convenient so long as they did not make a habit of
doing so Duncan stated that if an employee had a particular job to work
on and could finish it within 10 to 15 minutes, that employee could finish
the job the employee was doing before taking a break if the employee
chase to do so. Shop employees do not clock out for breaktimes
s The handbills, a copy of which was received in evidence , reads as
follows:
UNION MEETING
ALL EMPLOYEES OF GURLEY OIL COMPANY WHO ARE MEMBERS
OR POTENTIAL MEMBERS OF TEAMSTERS LOCAL 984.
This chair is reserved for You Saturday
Date May 3, 1986 Time. 10 A.M.
Place. Union Hall, 3020 Sandbrook St.
Agenda: To discuss reconvening of negotiations
Arthur B. Crutcher Vice-President [G C Exh 7]
Rams did not know how many lockers there were, but he estimated
he placed approximately 25 to 30 handbills in employee lockers.
7 Supervisor Duncan stated that although the contract called for a 10-
numute break, the practice for the shop employees was to take 10 to 15
minutes without any repercussions, but he added the Company treed to
keep breaktimes to 10 minutes.
S Adams testified he had placed notes in various drivers' lockers on
different occasions He stated, for example, he had left notes to drivers
when he had been working on their privately owned automobiles and
when he wanted them to bring him fresh fruit from the State of Florida.
Adams stated that when the drivers' wives or fellow drivers called in
with or left messages he placed them in the drivers' lockers Adams testi-
fied Supervisor Duncan had even instructed him to leave notes on certain
occasions for certain drivers
41
Assistant to the President and Personnel Manager
Helton testified he was informed by Supervisor Flynn in
a telephone conversation on Friday, 25 April, that Rains
had placed union notices in the truckdrivers' lockers.
Helton stated Flynn called him at home to report the in-
cident. Helton said Flynn told him he had heard from
someone (not further identified) that Rains had placed
the handbills in the drivers' lockers. Flynn had not per-
sonally observed Rains do so. Helton stated he did not
believe Flynn knew what time Rains had placed the
handbills in the lockers. Helton instructed Flynn to
remove all union literature from the drivers' lockers.
Flynn carried out Helton's instructions.9
Helton testified he discussed the handbilhng incident
with Supervisor Duncan during the morning hours on
Monday, 28 April. i 0 Helton stated a tentative decision
was made during their meeting to give Rains a 3-day sus-
pension for placing the union literature in the drivers'
lockers. Helton told Duncan to suspend Rains for 3 days
beginning on Tuesday, i 1 29 April, unless Rains denied
placing the notices in the lockers. If Rains denied placing
the notices in the lockers, Helton would ask Duncan to
hold up suspending him until Helton and Duncan could
discuss the matter further. Helton stated he made the ul-
timate decision to give Rains the 3-day suspension and
that he did so solely because Rains placed union notices
in the drivers' lockers. 12 Helton stated Rains' actions
violated sections 3.5 and 13.5 of the recently expired col-
lective-bargaining agreement with the Union.
Duncan and Rains met at the beginning of the work
shift on 29 April. Their testimony regarding the meeting
differed in some respects.
Rains testified he could not find his timecard and that
Duncan asked him to come to his office for a meeting,
According to Rains13 Duncan began the meeting by
saying he could not let Rains go to work because he was
going to have to suspend him for 3 days. Duncan then
handed Rains a letter to that effect.14 Rains stated
9 Helton testified Flynn later gave him about 37 handbills that he had
collected from the drivers' lockers The handbills collected were identical
to the one described in fn 5
is Helton had not spoken to Duncan about Rains prior to that tune.
L' Rains did not work on Sundays and Mondays
13 Helton acknowledged he stated in his pretrial Board affidavit given
on 13 May that he and Duncan felt Rains had to walk off his job to place
the handbills in the lockers and as a result they decided his discipline had
to be more severe than a written warning but less than discharge, so they
decided on a suspension Helton acknowledged he did not know what
time Rains had placed the notices in the drivers' lockers and added he
did not attempt to ascertain that information.
13 Rains was somewhat confused at times in his trial testimony, how-
ever, he stated he would stand by what was set forth in his pretrial Board
affidavit I have carefully considered all aspects of Rants' testimony in
evaluating his credibility
14 The suspension letter Duncan gave Rains reads in pertinent part as
follows (Rains' name is spelled "Raines" in this letter)
Dear Mr. Raines:
On April 25, 1986, without authorization from the Company, you
placed union notices in the lockers of the drivers. This is a violation
of our now expired contract (Section 3 4(a) and Section 13 5) As a
result you are hereby suspended without pay for three (3) days You
should report for work at your regular starting time on Friday, May
2, 1986 Any further violation of this contract (expired) will result in
your immediate discharge.
Continued
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Duncan told him the suspension letter came from "up
front," and that he did not have anything to do,with it.
Duncan told Rains he was suspended because he distrib-
uted union literature without permission. Rains told
Duncan that if he thought it would have created any
problems he would not have done it. Rains asserts
Duncan told him Rains was getting into something that
would only create problems.15 Rains then told Duncan
that if the employees ever had problems in the past and
if they tried to talk with Duncan about the problems he
would turn a deaf ear on them.
Duncan testified he met with Rains, and:
I told him that it had been brought to my attention
by Mr. Helton, that he had distributed union litera-
ture during work, into the lockers of the drivers,
and that we felt we'd suspend him for three days.
Duncan stated Rains responded: "Well, if I had known it
was going to cause all of this trouble, I never would
have done it. No one ever told me that I couldn't."
Duncan said he did not ask Rains what time he had dis-
tributed the union literature. Duncan asked Rains if he
wanted a witness to be present when he signed for his 3-
day suspension. According to Duncan, Rains said, "no"
that he would take the matter up with a representative of
the Union.
Duncan testified he did not know of any written rule
or policy in effect at the time he gave Rains the 3-day
suspension that would have prohibited him from distrib-
uting literature.
Duncan denied saying anything to Rains about his get-
ting involved in matters that,could only create problems
and he also denied telling Rains the front office had
made the decision to discipline him. Duncan, however,
acknowledged the letter given Rains was prepared by
Helton in the front office.16
The two sections (3.4(a) and 13.5) of the recently ex-
pired collective-bargaining agreement referred to in
Rains' suspension letter reads as follows:
Section 3.4 Discharge.
(a) The Company shall not discharge nor suspend
any employee having seniority without proper
cause, but in respect to discharge shall give at least
one (1) warning notice of the complaint against
such employee to the employee, in-writing, except-
ing that no warning notice need be given to an em-
ployee before discharge if the cause of such dis-
i r> Rants stated Duncan did not explain what he meant by that remark
14 I credit Runs account of his suspension meeting with Duncan Al-
though Rains seemed somewhat confused regarding what was said at the
meeting, I am persuaded his confusion was honest and not caused by any
deliberate attempt to fabucate facts I am persuaded on the basis of his
demeanor and the full record that Duncan was not completely candid in
his version of his meeting with Rains as well as his testimony on other
matters Duncan at times was argumentative, while at other times he con-
tended certain facts were left out of his pretrial Board affidavit by the
Board agent taking the statement rather than by his failure to tell the
agent about those certain facts Simply stated, I did not find Duncan to
be a candid or completely honest witness Therefore I have not credited
his testimony when it conflicted with that of other witnesses
charge is : dishonesty; drinking of, being in posses-
sion of (or having on his equipment ), or being under
the influence of alcohol or narcotics or a "con-
trolled substance" while on Company property;
recklessness resulting in accident while on duty;
carrying of unauthorized passengers ; failure to
report an accident or injury; gross negligence re-
sulting in significant accident, destruction of Com-
pany property, or product loss; threatening another
employee or fighting; deliberate failure or refusal to
follow instructions or supervision; or other viola-
tions of reasonable conduct of similar severity. (See
also Section 5.1)
Section 13.5. Union Notices. Appropriate Union
notices concerning Union meetings or elections may
be posted on a Company bulletin board designed for
that purpose. Prior to the posting of any such
notice, a copy of it shall be furnished to the Compa-
ny for its approval.
Assistant to the President and Personnel Manager
Helton testified, as an adverse witness for the General
Counsel, that there were no rules prohibiting the distri-
bution of literature, but he contended two sections of the
recently expired collective-bargaining agreement covered
that subject matter. He testified that, in his opinion, sec-
tion 13.5 (set forth above) as well as section 3.5 (set forth
below) prohibited the distribution of literature. Section
3.5 reads as follows:
Section 3.5. Stewards. The Company recognizes
the right 'of the Union to designate Stewards and
Alternates from the Company's seniority list. All
grievance discussions and investigation shall be han-
dled in a manner which does not interfere with pro-
duction. When handled during working hours, a
Steward shall not leave his work station without the
prior permission of his supervisor.
Helton stated that his opinion that the above provisions
of the recently expired collective-bargaining agreement
covered the type of situation herein was supported by
precedent. Helton testified that approximately 2-1/2
years ago (prior to his employment with the Company)
an employee attempted to solicit signatures for a referen-
dum that pertained to the city of West Memphis, Arkan-
sas, but was denied permission to do so "during working
hours." However, in this regard Helton stated, while still
testifying as an adverse witness for the General Counsel,
that there were no rules that prohibited employees from
distributing literature of any type, including union litera-
ture, on their break or lunchtimes. 117
After having testified as outlined above, Helton stated,
in response to questions by company counsel, that the
Company had never allowed literature to be distributed
at the plant because of the restrictions of section 13.5 of
the recently expired collective-bargaining agreement and
that the restrictions of the collective-bargaining agree-
17 Helton acknowledged he knew of no incident other than the one
involving Rains where an employee was disciplined for distributing union
literature at the plant
GURLEY REFINING CO. 43
meat applied to all employees regardless of the nature of
the literature being distributed and regardless of whether
it was during work, lunch, and/or breaktimes, or in
working areas. Helton then contended on cross-examina-
tion that what he had said during his testimony as an ad-
verse witness for the General Counsel was that the distri-
bution of literature during break and lunchtimes was re-
stricted by section 13.5 of the recently expired collec-
tive-bargaining agreement. Further, on cross-examina-
tion, Helton acknowledged the employees were never
told they could not distribute union literature at the
Company, that the employees were expected to glean
that from the parties' recently expired collective-bargain-
ing agreement.
With respect to Helton's testimony, I am convinced it
cannot be regarded as wholly trustworthy, accurate, or
reliable. Helton gave contradictory testimony, especially
regarding whether the Company had any rule against the
distribution of literature. Helton seemed-particularly anx-
ious, in response to questions by company counsel, to
answer in a manner most favorable to the Company and
in support of his own actions and perceived interests
without regard for accuracy. In light of all the record
testimony, I am persuaded Helton's statement to the
General Counsel that the Company did not have any
prohibition against the distribution of union literature on
lunch and breaktimes is accurate. Such a finding is sup-
ported by Duncan's and Rains' testimony that they did
not know of any prohibition against the distribution of
literature. Furthermore, such a finding is supported by
the uncontradicted testimony of Union Vice President
and Business Agent Crutcher that he and employee
Duckworth had, in early 1986, handed out union litera-
ture in the warehouse area in the presence of Warehouse
Supervisor Baratti.
The Company's assertion that the most recently ex-
pired collective-bargaining agreement prohibited the dis-
tribution of literature is patently without merit. The rule
referred to in the collective-bargaining agreement by its
clear language pertains to the posting of union related
notices on a company-provided bulletin board. The lan-
guage simply states that notices may be posted on the
company-provided bulletin board if they are cleared
through the Company first. Absolutely no mention is
made about the distribution of literature. Furthermore,
no reasonable reading of that provision of the recently
expired collective-bargaining agreement could lead to an
interpretation that employees had to get approval of the
Company to distribute literature on company premises.
After carefully evaluating all the facts, I am persuaded
the General Counsel has made a prima facie showing suf-
ficient to, support the inference that protected conduct
was a motivating factor in the Company's decision to
discipline Rains by suspending him without pay for 3
days because he placed union literature in employees'
lockers, Wright Line, 251 NLRB 1083 (1980), enfd, 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp.,
462 U.S. 393, 400-403 (1983). First the Company learned
in January or February that Rains was so dissatisfied
with working conditions at the Company that he felt
going to the Union was the only way to obtain relief.
Rains was told by Helton he did not see how it would-be
in Rains' best interest to join, the Union. A few weeks
later Rains distributed union literature on his breaktime
and was promptly suspended for doing so. The literature
was retrieved from the employees' lockers, at the direc-
tion of Helton, at a time when Rains' immediate supervi-
sor did not even know of any rule-that prohibited distri-
bution of the type Rains had done. The Company's
knowledge of Rains' union sentiments, which knowledge
it obtained in violation of the Act, coupled with the fact
it had no rule against distribution, taken in conjunction
with the timing of Rains' discipline, clearly'establishes a
prima facie showing of unlawfully motivated action on
the part of the Company in disciplining Rains. The Com-
pany failed to establish it would have taken the same
action it did in the absence of Rains' protected conduct.
First, the Company's contention that Rains actions vio-
lated certain provisions of the recently expired collec-
tive-bargaining agreement is patently without merit. The
specific provisions the Company contends Rains violated
pertains to the posting of union literature on a company-
provided bulletin board and does not address or pertain
to the distribution of literature. That the distribution of
literature incident was seized on by the Company as an
excuse to punish Rains for his union sentiments is clear
from the testimony of Rains' immediate supervisor stat-
ing that he did not know of any written rule that prohib-
ited what Rains did. Even Assistant to the, President and
Personnel Manager Helton, the official ultimately, respon-
sible for the decision to discipline Rains, first (and on
that point truthfully) testified he knew of no rule that
prohibited the distribution of union literature on employ-
ees' break or lunchtimes. The evidence is persuasive that
Rains distributed the literature in question on his break-
time, a fact the Company made no effort to ascertain at
the time it decided to discipline him. Furthermore, no
other employee has ever been disciplined for any such
offense even though employee Duckworth had, prior to
the incident involving Rains, distributed union literature
in the plant in the presence of warehouse Supervisor
Baratti.
Accordingly,\I find as alleged in the complaint, that
the Company violated Section 8(a)(3) and (1) of the Act
when about 29 April it suspended its employee Rains for
3 days without pay in order to discourage his and other
employees' membership in the Union.
Additionally, the Board has held that the confiscation
of union literature left in or around an employer's facili-
ty, for example, on a tool cabinent or table, constituted
interference with employees' Section 7 rights in violation
of Section 8(a)(1) of the Act if the employer did not
have a written policy or established practice of removing
such nonwork-related literature from its premises. See
Photo-Sonics, Inc.; 254 NLRB 567 (1981), and Mississippi
Chemical Corp., 280 NLRB 413, 419 (1986). The Board's
holdings in those cases compel a finding that Helton's in-
structions to Flynn in the instant case to remove the
union notices from the employees' lockers was unlawful.
The Company had no written policy prohibiting the ex-
istence or distribution of union literature or nonwork re-
lated materials in the plant. In fact it is clear the Compa-
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ny knew of and condoned the leaving of nonwork-relat-
ed notes in the employees' lockers. In light of the Com-
pany's other conduct herein found to be violative of the
Act, I am persuaded and find Helton caused the litera-
ture in question to be removed from the employees' lock-
ers simply because it involved union matters. According-
ly, I find such action to constitute a violation of Section
8(a)(1) of the Act.
D The Events Leading up to and the Discharge of
Adams
It is alleged at paragraph 9 of the complaint that the
Company through its supervisor/agent Duncan about 29
April, in violation of Section 8(a)(1) of the Act, informed
employee Adams that he was being discharged because
of his union membership, activities, and sympathies. Ad-
ditionally, it is alleged at paragraph 10 of the complaint
that the Company, about that same date, in violation of
Section 8(a)(3) and (1) of the Act, discharged Adams in
order to discourage his and others' membership in the
Union
The Company contends it discharged Adams solely
for borrowing company property without permission
after having been twice warned about doing so.
It is acknowledged that Adams borrowed a two-
wheeled dolly at the Company immediately prior to his
discharge. There, however, exists a dispute regarding the
ownership of the dolly and whether ithe Company had a
policy related to borrowing its equipment and whether
that policy was followed on the occasion in question.
Adams worked for the Company from May 1980 until
his 29 April discharge as a mechanic in the diesel shop
under the supervision of Duncan i 8 Adams has been a
member of the Union since 1984 and at applicable times
has had his union dues deducted from his pay by the
Company. In February t 9 Adams became a union stew-
ard for a short period of time.20 At the time Adams
became union steward there was only one other employ-
ee in the diesel shop who was a member of the Union.
Adams talked to the other shop employees telling them
they needed to join the Union so they could have a
better place to work. Adams asserts all the Diesel Shop
employees joined the Union in late March prior to the
decertification election that was held in early April.
Adams served as an observer for the Union at the decer-
tification election.
Adams testified that about 4 years agog i he needed to
borrow some company tools Adams asked Duncan if it
would be all right to take company tools home and use
them on his days off. Duncan told Adams he was not
going to be hard to get along with, that he could borrow
tools so long as he took care of and assumed responsibil-
ity for them 22 Adams testified Duncan told him "Any-
time you need [to borrow] anything, just let me know"
and "if [he was] not around [to] tell somebody else in the
shop so that we will know where [the tools are] at."
Adams stated he always told Duncan when he was bor-
rowing tools, if Duncan was around, and if he was not
he always told a fellow worker Adams also stated that
when he returned tools he always told Duncan he was
doing so
Rains corroborated Adams testimony regarding the
policy for borrowing company tools for personal use.
Rains asserted he had borrowed tools pursuant to that
poliCy.23
Duncan testified employees could borrow company
tools only with his permission He denied he ever told
Adams, Rains, or any other employee that if he was not
around to give his permission to borrow tools that they
should just tell each other they had done so Duncan
stated that, as a matter of fact, he had never either orally
or in writing mentioned anything to the shop employees
about borrowing company tools.
I credit the mutually corroborative testimony of Rains
and Adams regarding the Company's policy on employ-
ees borrowing company tools for personal use.24
It is not disputed that prior to Adams' discharge
Duncan met twice with at least some, if not all, of the
shop employees at which meetings he discussed remov-
ing company property from the Company's premises.
According to Rains the first such meeting took place
sometime in late 1985 when Duncan met briefly with the
diesel shop employees and told them not to take Compa-
ny property for any reason. According to Adams,
Duncan told the employees not to take any boxes, bar-
rels, antifreeze jugs, or things like that away from the
Company All agree the subject of borrowing tools was
not discussed at this or any other meetings.
Duncan testified he observed Adams placing antifreeze
boxes in his privately owned truck Duncan asserts he
and Director of Transportation Mulvaney walked to
Adams' truck and:
I told him that he couldn't take those boxes out, off
the premises, that belonged to the company. For
18 It is not disputed that Adams was a good worker and that his job
performance played no part in his discharge
19 Adams testified Union Business Agent Crutcher told him he would
inform the Company that Adams was the union steward for the diesel
shop Adams testified Duncan informed him in March that Adams was
the union steward and would be on the negotiating committee for the
Union Duncan denied telling Adams any such thing, however, for rea-
sons more fully discussed eleswhere in this decision, I did not find
Duncan to be a credible witness and as such I do not credit his dental
20 Adams stated he prevailed on fellow worker Rains to become the
union steward instead of himself because Rains was "a young man who
talked good and everything " Adams stated he did not express himself
well and asserted his vocabulary was limited
21 Duncan testified he began his employment with the Company in
1982
22 Adams testified he, from time to time, borrowed drills, metal grind-
ers, and other tools from the Company
23 It appears shop employees, from time to time, loaned their personal
tools to the Company For example, Rains testified he had loaned torque
wrenches, shop manuals, gear pullers, and cylinder hones to the Compa-
ny
24 I am persuaded that on this, as well as other matters, Duncan did
not testify truthfully I note no employees were called to refute Rains'
and Adams' testimony regarding the Company's policy on borrowing
tools, nor were any employees called to corroborate Duncan's version of
the policy Furthermore, it is undisputed that former employee Pace bor-
rowed a company power saw for almost a week in the fall of 1985 and
Duncan did not know anything about it until he was asked where the
saw was There is no indication any action was ever taken against Pace
for borrowing the Company's power saw without Duncan's explicit per-
mission
GURLEY REFINING CO. 45
him to either return them, or I'd either have to ter-
minate him. So, he carried the boxes back inside the
house, or into the shop rather.
Director of Transportation Mulvaney testified Duncan
simply asked Adams what he was doing - and when
Adams told him he was taking some boxes home Duncan
told him the boxes were company property and that he
should return them to the shop, which Adams did. Mul-
vaney stated there was no mention made of Adams being
discharged. Adams could not recall Duncan ever telling
him to get the boxes out of his truck or be fired, nor
could he recall anything similar to that ever having been
said. Duncan was confronted with his pretrial Board affi-
davit dated 13 May in which he had described the above
incident, and he acknowledged he had not made any
mention in his affidavit of telling Adams to return the
boxes or be terminated. Duncan explained that he "just
failed to put it in [his] affidavit." I am persuaded there is
nothing in Duncan's affidavit about his telling Adams he
would be terminated if he did not return the boxes be-
cause Duncan did not make any such comment to
Adams. I am likewise persuaded that is the reason Mul-
vaney and Adams did not hear or could not recall
Duncan saying anything about having to terminate
Adams if Adams did not return the boxes in question. I
am convinced Duncan 's asserted statement about having
to terminate Adams if he did not return the boxes was a
post hoc misstatement of fact on Duncan 's part . In sum-
mary, all Duncan told Adams was to return the boxes, to
the diesel shop, which Adams did. Nothing else was said
and no disciplinary action was taken against Adams for
the incident.
Duncan thereafter did conduct a second meeting with
the diesel shop employees. He told them, "Do not take
anything, a box, a carton, shop towel, or anything else
off the premises, that belongs to the Company." Duncan
stated he did not say anything in the meeting about any
procedure for borrowing Company tools.
Adams testified he was scheduled to attend an air-con-
ditioning class on Tuesday, 29 April, rather than report
to work at the diesel shop.25 Duncan called `Adams at
home that morning and told him to come to the shop
rather than to attend the air-conditioning class because
the Company was "swamped" with work. When Adams
arrived at work Duncan asked him if he had "the shop's
two wheeler" and did he bring it back to the shop.
Adams told Duncan he did not have the,shop's two
wheeler, that he had borrowed one that belonged to a
truckdriver and would bring it back to the shop the next
day. Duncan told Adams they were going to need the
dolly that day and asked if he would mind taking a com-
pany truck to his home to get the dolly. Adams did as
requested.26 After placing the dolly against a wall in the
diesel shop, Adams started to go to work when Duncan
told him he wanted to see him in his office. Duncan told
Adams he was going to have to let him go. Adams asked
why and Duncan handed him a letter saying, "This will
25 Adams was not regularly scheduled to work on Sundays and Mon-
days
26 Adams lives closeby the shop . It took him approximately 10 minutes
to go to his home, obtain the dolly, and bring it back to the shop
explain it." The letter Duncan gave Adams reads as fol-
lows:
Dear Mr. Adams:
You have been recently instructed to not remove
any company property from the premises of Gurley
Refining Company. You recently took a 2-wheel
dolly for personal use without authorization from
the Company. Such removal of Company property
is strictly prohibited and, as a result, you are dis-
charged (effective 4-29-86) under Section 3.4(a)27
Discharge of our now expired contract.
Sincerely,
-Carl Duncan
Adams told Duncan he had not used company property
without permission. Duncan replied, "Well, you've used
the company two-wheeler for the past two weekends
without my permission." Adams told Duncan he had
not, that he had used a two-wheeler that belonged to one
of the drivers at the Company, that the "company['s] 2-
wheeler was a little red metal [one] with . . . thin
wheels," whereas the one he borrowed had an aluminum
body with "balloon tires." Adams told Duncan he had
informed Charlie Orman and Rains, as he had always
done, that3,he had borrowed the dolly. Adams told
Duncan he had- notified Orman so that if the owner of
the dolly came looking for it Orman could--tell the driver
who had it and Adams could bring it in to the driver.2a
Adams then took Duncan to the dolly and showed him
how it differed from the dollies owned by the Company.
Adams said when he showed Duncan the difference in
the two dollies that Duncan hesitated and then stated,
"Well, all this union business , you know, all this trouble
we're having, I've got to let you go. This came from the
front office."29 Adams told Duncan, "Okay" and did not
say anything more to him at that time.
It is not disputed that Adams borrowed the dolly, in
question for, the weekend of 19 April.30 Adams credibly
testified he returned the dolly to the shop on ,Tuesday,
22 April, and that he did so in Duncan's presence.
Adams stated he even had to ask Duncan to step out of
the doorway so he could get the dolly into the shop area
that morning.
Duncan testified he looked for the dolly on Wednes-
day, 23 April, but could not locate it. Duncan was not at
the plant on Friday or Saturday, 25 and 26 April.
27 Sec . 3.4(a) of the recently expired collective-bargaining agreement
between the parties is set forth in full elsewhere in this decision.
211 It is undisputed that the truckdrivers at the Company have to pro-
vide their own dollies at their own expense.
2s Duncan denied making the above comment but acknowledged the
dismissal letter he gave Adams was drafted by Assistant to the President
and Personnel Manager Helton . Helton stated he drafted all dismissal let-
ters As has been discussed elsewhere in this decision , I did not find
Duncan to be a credible witness and as such I discredit his denial re-
ferred to above
so Adams borrowed that same dolly in the winter of 1985 and on that
occasion he told his fellow shop workers he had the dolly Adams stated
he normally borrowed the dolly on Saturdays for use at his home during
the weekend and added Duncan was generally not at the shop on Satur-
days therefore he could not tell him he was borrowing the dolly.
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Adams again borrowed the dolly on 26 April. On
Sunday, 27 April, shop employee Orman told Duncan
Adams had borrowed the dolly.
Duncan met with Assistant to the President and Per-
sonnel Manager Helton on Monday, 28 April, and told
him he had a situation that needed looking into. Duncan
told Helton Adams had borrowed a company dolly with-
out permission, that he had needed the dolly during the
week, had looked for it, but had been unable to find it.
Duncan and Helton decided to terminate Adams. Ac-
cording to both Duncan and Helton, Adams' termination
was based solely on his having borrowed company prop-
erty without permission. Duncan even stated that if the
dolly Adams borrowed had not been company property
Adams would not have been discharged.31
I find the General -Counsel has made a prima facie
showing sufficient to support the inference that protected
conduct was a motivating factor in the Company's deci-
sion to terminate Adams. Adams was a long-term em-
ployee with a good work record. He became very active
for the Union shortly before he was discharged. The es-
tablished facts demonstrate the Company, Supervisor
Duncan in particular, knew Adams had recently been
designated steward for the diesel shop employees. Prior
to Adams becoming shop steward there was only one
other shop employee who belonged to the Union. Adams
successfully encouraged all the other diesel shop employ-
ees to join the Union and he served as an observer for
the Union at the Board-conducted decertification elec-
tion held on 11 and 12 April. The Company received the
Board's Certification of Representative dated 21 April
and on 29 April discharged Adams. Adams' increased
union activities, the Company's knowledge of at least
some of those activities, namely, his being appointed
31 The Company, at some length, attempted to establish its ownership
of the dolly in question Company Director of Transportation Mulvaney
testified that one of the Company's truckdrivers informed him in August
1985_ that he had mistakenly taken the dolly in question from a customer
of the Company while he was making a delivery to the customer Mul-
vaney stated that after some telephone discussions with the customer the
Company agreed to purchase the dolly from the customer Mulvaney
stated the customer billed the Company for the dolly in November 1985.
Mulvaney stated that after receiving the billing he submitted it to the
Company's accounting department for payment Assistant to the Presi-
dent and Personnel Manager Helton identified a company check (R Exh.
5) dated 19 May, which check was payable to the customer from whom
the dolly was allegedly taken. The description of the check indicates it
was payment for "tr repairs." Helton refused to speculate as to whether
the "tr. repairs" stood for "truck repairs," "tire repairs," or something
else. I am convinced the evidence, even in a light most favorable to the
Company, does not establish it owned or owns the dolly in question
First, the dolly was brought to the Company by a truckdriver, and it is
acknowledged that truckdnvers are required to furnish their own dollies
Second, the dolly is not the same wheel type as that used by the Compa-
ny. Third, the evidence that the dolly was purchased by the Company is
highly suspect because the alleged payment for the dolly was not made
until after the charge in the instant case was filed and after the Compa-
ny's witnesses had given sworn statements to the Board It appears the
Board took sworn statements from the Company's witnesses on 13 May.
Finally, the claimed payment reflects it was for "tr. repairs," which
would seem to be a very odd way to label a payment in full for a two-
wheeled dolly if that is what the payment was for. In light of all the
above, I find the ownership of the dolly in question has not been estab-
lished on this record. I do not find the failure to establish the ownership
of the dolly to significantly impact on the outcome of the instant case
inasmuch as there is ample other evidence on which to base the findings I
have made.
shop steward, and his serving as an observer for the
Union coupled with the timing of his discharge, clearly
gives rise to an inference that protected conduct was a
motivating factor in the Company's decision to discharge
him. Further evidence that the Company was unlawfully
motivated in its decision to discharge Adams is evi-
denced by Duncan's statement to Adams at the time of
his discharge that it was related to all the union business
and trouble the Company had been having.32 even fur-
ther evidence of the Company's unlawful motivation is
demonstrated by its failure to follow a requirement of
the provision of the expired collective-bargaining agree-
ment that it contends it discharged Adams pursuant to.
The provision of the expired collective-bargaining agree-
ment in question calls for an employee to be given a
written warning (with certain exceptions not applicable
herein) prior to the employee being discharged. The
Company did not follow nor did it explain its failure to
follow that requirement of the expired collective-bargain-
ing agreement when it discharged Adams. Having found
the General Counsel has established a prima facie case, I
turn to the second inquiry that must be made in cases
that turn on an employer's motivation for its conduct,
namely, whether the company has rebutted the General
Counsel's prima facie showing of a violation of the Act.
I find it has not. It failed to demonstrate it would have
taken the same action it did even in the absence of any
protected conduct on the part of Adams. The established
facts conclusively demonstrate the Company had an in-
formal policy of permitting its employees to borrow
company-owned tools for their personal use so long as
the employees informed Supervisor Duncan, or in his ab-
sence someone in the shop, that they were borrowing
tools. This informal practice had been followed at least
by employees Pace, Rains, and even Adams in 1985
without any disciplinary action being taken against them.
It appears the only intervening factor in the current situ-
ation involving Adams was his increased union activities.
Neither Adams nor any other employee had been noti-
fied of any changes in the Company's informal policy re-
garding borrowing tools prior to Adams' discharge. The
two meetings Duncan held with employees prior to
Adams' discharge pertained to employees removing com-
pany property (primarily scrap materials) from the Com-
pany's premises without permission. The two meetings
did not pertain to employees borrowing company tools.
Inasmuch as I have found the General Counsel has es-
tablished a prima facie showing that the Company was
unlawfully motivated in its decision to discharge Adams,
and inasmuch as I have concluded it failed to establish it
would have discharged him even in the absence of his
protected conduct, I find it has violated Section 8(a)(3)
and-(1) of the Act by discharging him on 29 April.
CONCLUSIONS OF LAW
1. W. M. Gurley, L. M. Gurley, and Betty Gurley,
d/b/a Gurley Refining Company is an employer engaged
32 I find as alleged in the complaint that Duncan 's statement consti-
tutes a violation of Sec 8(a)(1) of the Act in that Duncan informed
Adams he was being discharged because of his union membership, activi-
ties, and sympathies.
GURLEY REFINING CO.
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. General Drivers, Salesmen, & Warehousemen's
Local Union No. 984, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America is a labor' organization within the
meaning of Section 2(5) of the Act.
3. By engaging in the following conduct the Company
committed unfair labor practices in violation of Section
8(a)(1) of the Act.
(a) By in January interrogating its employees concern-
ing their union membership, activities, and desires.
(b) By in January soliciting employee complaints and
grievances and by promising its employees increased
benefits and improved terms and conditions of employe-
ment.
(c) By about 25 April removing union literature from
its employees' lockers.
(d) By about 29 April informing an employee that the
employee was being discharged because of his union
membership, activities, and sympathies.
4. By discharging its employee J. C. Adams on 29
April in order to discourage his membership in the
Union, the Company violated Section 8(a)(3) and (1) of
the Act.
5. By suspending for 3 days effective 29 April its em-
ployee John Rains in order to discourage his membership
in, and activities on behalf of, and sympathies for the
Union, the Company violated Section 8(a)(3) and (1) of
the Act.
6. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that the Company discriminatori-
ly discharged its employee J. C. Adams, I shall recom-
mend that it be ordered to offer Adams full reinstatement
to his former position or substantially equivalent position
of employment without prejudice to his seniority or
other rights and make him whole for any loss of pay he
may have suffered by reason of the discrimination
against him, with interest. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289
(1950). Interest shall be computed as prescribed in Flori-
da Steel Corp., 231 NLRB 651 (1977). See, generally, Isis
Plumbing Co., 138 NLRB 716 (1962). Further, it is rec-
ommended the Company be ordered to remove from its
files any reference to its 29 April discharge of Adams
and notify him in writing that this has been done and
that evidence of his unlawful discharge will not be used
as a basis for future personnel actions against him. See
Sterling Sugars, 261 NLRB 472 (1982). It also having
been found that the Company unlawfully suspended for
3 days its employee John Rains, I will recommend that it
be ordered to make him whole for any loss of wages or
other rights and benefits he may have suffered as a result
of the discrimination against him. Any backpay owed
47
Rains will be computed in the manner set forth above.
Likewise, it is recommended that the Company be or-
dered to expunge from its files any reference to its 3-day
suspension of Rains and that it notify him in writing that
this has been done and that evidence of his unlawful sus-
pension will not be used as a basis for any future person-
nel actions against him. Finally, it is recommended that
the Company be ordered to post a notice to employees
attached hereto as "Appendix" for a period of 60 days in
order that employees may be apprised of their rights
under the Act and the Company's obligation to remedy
its unfair labor practices.33
On these fmdings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed34
ORDER
The Company, W. M. Gurley, L. M. Gurley, Betty
Gurley, d/b/a Gurley Refining Company, West Mem-
phis, Arkansas, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging, suspending, or otherwise discriminat-
ing against any employee for supporting General Driv-
ers, Salesmen, & Warehousemen's, Local Union No. 984,
affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America
or any other labor organization.
(b) Coercively interrogating any employee regarding
the employee's union membership, activities, and sympa-
thies.
(c) Soliciting employee complaints and grievances and
promising to remedy them.
(d) Interfering with employee activities on behalf of
the Union or any other labor organization by removing
notices of union meetings from employees' lockers.
(e) Informing employees they are being discharged be-
cause of their union membership, activities, and sympa-
thies.
(f) 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) Offer J. C. Adams immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or any other rights or privileges previously
enjoyed, and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
3' The General Counsel has requested that my recommended remedy
include a visitatonal clause authorizing the Board to engage in discovery
under the Federal Rules of Civil Procedure so that it may be able to
monitor compliance with the Board's Order I am persuaded that such a
remedy is not necessary in the instant case Accordingly, I deny the Gen-
eral Counsel's request for such a remedy
s'' If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion against him in the manner set forth in the remedy
section of the decision.
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in wasting that this
has been done and that the discharge will not be used
against him in any way.
(c) Make John Rains whole for any loss of earnings he
may have suffered by reason of the discrimination
against him in the manner set forth in the remedy section
of this decision.
(d) Remove from its files any reference to the 3-day
suspension of its employee John Rains, and notify him in
writing that this has been done and that evidence of his
unlawful suspension will not be used as a basis for any
future personnel actions against him.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying , all pay-
-roll records, social security payment records, timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at at its West Memphis, Arkansas facility
copies of the attached notice marked "Appendix."35
Copies of the notice, on forms provided by the Regional
Director for Region 26, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
3s 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
LaborRelations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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 protect-
ed concerted activities.
WE WILL NOT suspend, discharge, or otherwise dis-
criminate against any employees because of that employ-
ee's union activity.
WE WILL NOT interrogate employees regarding their
union membership, activities, and sympathies.
WE WILL NOT solicit complaints and grievances from
our employees and promise to remedy them.
WE WILL NOT interfere with our employees' activities
on behalf of General Drivers, Salesmen , & Warehouse-
men's Local Union No. 984, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America or any other labor or-
ganization by removing notices of union meetings from
our employees' lockers.
WE WILL NOT inform any employee that the employee
is being discharged because of the employee 's union
membership, activities, and sympathies.
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 offer J. C. Adams immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed and WE WILL make him whole for
any loss of earnings and other benefits resulting from his
discharge, less any net interim earnings , plus interest.
WE WILL make John Rains whole for any loss of pay
he may have suffered by reason of our discrimination
against him with interest.
WE WILL notify him that we have removed from our
files any reference to his discharge and that the dis-
charge will not be used against him in any way.
W. M. GURLEY, L. M. GURLEY, AND BETTY
GURLEY, D/B/A GURLEY REFINING COMPANY
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.