Hartley Oil Co.

National Labor Relations Board - Board Decisions

Sep 25, 1998

326 N.L.R.B. 1111 (N.L.R.B. 1998)

HARTLEY OIL CO. 1111
Hartley Oil Company, Inc. and Oil, Chemical and
Atomic Workers International Union, AFL–
CIO. Case 9–CA–33372–4
September 25, 1998
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
On June 3, 1998, Administrative Law Judge Marion C.
Ladwig issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed an answering brief.
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 decided to
affirm the judge’s rulings, findings,1 and conclusions2 and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Hartley Oil Company, Inc.,
Ravenswood, West Virginia, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.

Eric J. Gill, Esq., for the General Counsel.
Mark E. Heath, Esq. (Smith, Heenan & Althen), of Charleston,
West Virginia, for the Respondent.
Larry G. Abel, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. This case
was tried in Ripley, West Virginia, on February 13, 1997. The
charge was filed against the Company, Hartley Oil Company,
on December 8, 1995,1 and the complaint was issued February
29, 1996.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We also find no merit to the Respondent’s allegation of bias on the
part of the judge. After full consideration of the record and the judge’s
decision, we perceive no evidence that the judge made prejudicial rul-
ings or demonstrated bias against the Respondent. Nor do we find the
fact that the judge resolved important factual conflicts in favor of the
General Counsel’s witnesses establishes bias or partiality. As the Su-
preme Court stated in NLRB v. Pittsburgh Steamship Co., 337 U.S. 656,
659 (1949), “[t]otal rejection of an opposed view cannot of itself im-
pugn the integrity of competence of a trier of fact.” Finally, we reject
the Respondent’s argument that bias is shown by the judge’s finding
that Simms requested more hours of work, or alternatively, sought a
“low earnings” slip from Manager Lyons on September 20, 1995, a
date for which there is no record support. The September 20 date is
clearly a misprint. As elsewhere found by the judge, the discussion
occurred on September 14.
2 In adopting the judge’s decision, we find it unnecessary to pass on
his calculations as to the amount of overtime savings the Respondent
would have achieved had it recalled Simms to the rail department in
October 1995.
About 15 minutes after Warehouse Supervisor Bruce Speece
observed warehouse laborer Lee Simms wearing an OCAW
union button on his hat during an organizing campaign, Speece
called Simms to the office and transferred him to the rail build-
ing where he previously worked, cleaning railroad cars. Simms
had been working much overtime in the warehouse.
In the rail building Simms’ hours were cut to below 40 hours
a week, while other employees—including a new employee
hired the week before—were working overtime. In his third
week there, when he complained about not being able to meet
his expenses because of the reduced hours, the Company laid
him off for lack of work after informing him that he could
make more money from unemployment and refusing to return
him to the warehouse. Overtime work continued in the rail
building. One employee averaged 59 hours a week in the 2
weeks following Simms’ layoff, and during the next 6 weeks,
two employees averaged over 61 hours.
The primary issues are whether the Company, the Respon-
dent (a) discriminatorily transferred Lee Simms from the ware-
house to the rail building, reduced his hours of work, and laid
him off because of his union activity, (b) maintained an unlaw-
ful no-solicitation rule, and (c) coercively interrogated an em-
ployee, violating Section 8(a)(1) and (3) of the National Labor
Relations Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, repackages and warehouses
plastic products at its facility in Ravenswood, West Virginia,
where it annually ships goods valued over $50,000 directly
outside the State. The Company admits and I find that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Discrimination Against Lee Simms
1. Transfer from warehouse to rail building
On November 17, 1994, Lee Simms was employed to work
as a laborer in the rail building, where railroad cars are washed
and repaired. About February (3 months later), after dislocating
his shoulder, he was assigned to the warehouse where he
worked until the latter part of May. That was when his brother,
who was working in the rail building, hurt his knee and was
transferred to the warehouse. Simms was transferred back to
the rail building. After about 2 weeks, on June 14, he cut his
hand and was off work until June 20. (Tr. 11, 13, 42–43, 155;
R. Exh. 1.)
After Simms returned, Vice President Phil Southall directed
that he “not be allowed near” any water (for hosing down the
rail cars) and Simms was again transferred to the warehouse.
This time, as Simms credibly testified, Warehouse Supervisor
1 All dates are in 1995 unless otherwise indicated.
326 NLRB No. 97
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1112
Bruce Speece told him that he “would be staying in the ware-
house because I was accident prone in the rail building.” (Tr.
13, 43–45, 63–64, 68.) By his demeanor on the stand, Simms
impressed me as being a truthful witness, doing his best to re-
call accurately what had happened.
Meanwhile the Union began an organizing drive at the Com-
pany and the adjacent Hartley Manufacturing plant. The Com-
pany held meetings for the foremen (leads) and for other super-
visors, giving them TIPS training for their conduct during the
union organizing campaign. (Tr. 72–74, 142–143, 145–146,
189, 198–201.)
Simms supported the Union and on Monday, August 28, be-
gan wearing an OCAW union button on his hat. When Speece
saw the button, as Simms credibly testified, “[H]e looked at me
and looked at my hat and closed his eyes and put down his head
and shook his head.” Without saying anything, Speece went
back to his office. About 15 minutes later Speece called Simms
in and said he was being transferred to the rail building. (Tr.
14–18, 64; G.C. Exh. 2.)
By this time Simms had been working in the warehouse
about 6 months. He was qualified to do the work, and there is
no indication in the evidence that his work was not satisfactory.
He asked Speece why he was being moved to the rail building
and Speece would not give an answer. He asked the rail fore-
man (Lead Anthony Derenberger) why he was transferred back,
and Derenberger “wouldn’t give me an answer.” (Tr. 12–13,
18–20, 161, 169, 197.) (Derenberger did not testify.)
Speece, who shared an office with Warehouse Manager
Douglas Moore (his superior), admitted seeing Simms “with a
OCAW badge right in the middle of his hat” (Tr. 195–196).
The explanation that Moore gave for Simms’ transfer was
that Rail Operations Supervisor Donna Jean Carter “asked for
him back.” Moore further claimed that Carter said, “[S]he
needed more employees [emphasis added],” that “we was slow-
ing down” in the warehouse, “We usually slow down in the fall
and really we was getting slow.” He denied seeing Simms ever
“wear any buttons or anything of that nature,” but did not deny
that Speece reported seeing the union button on Simms’ hat
about 15 minutes before the transfer. (Tr. 136–137.)
Regarding Moore’s credibility, he later claimed that he just
“heard rumors” of union activity at Hartley Manufacturing
(where the election was held on September 30) and “I didn’t
know of any union, not at Hartley Oil.” He admitted, however,
that he attended a management meeting concerning union activ-
ity. When asked why the Company held such a meeting if there
was not any union activity going on, he claimed: “I guess you
have to ask the . . . one in charge of the meeting because I don’t
know.” (Tr. 142–143, 145–146.)
Still later Moore claimed “I don’t recall that I did see” ware-
house employee Dean Hurst wearing a badge, but admitted that
“maybe” he saw Hurst wearing one, “I don’t remember,” and
“Yeah, he could have” worn one. (Tr. 146–147.) Moore did not
appear to be a candid witness.
Particularly because of Simms’ continuing weekly overtime
in the warehouse before the transfer (as discussed below) and
the absence of any supporting evidence of any slowdown in the
warehouse, I discredit Moore’s claims that work there was
“slowing down” and “really” getting slow. I also discredit
Moore’s claim that Carter not only asked for Simms back, but
also said she needed “more employees” in the rail building,
where she had already hired a new employee to fill in for an
ailing employee.
Carter testified that Simms returned to the rail building “Be-
cause I had a fellow [Kenny Jarrett] that started having health
problems in mid-August” and “I needed someone to fill that
place” (Tr. 156–157). I find that this purported reason for the
transfer was a fabrication.
A company exhibit (R. Exh. 7; Tr. 112) does show that Jar-
rett’s overtime during the first 2 weeks in August (working
56.25, and 55 hours) ended the last 2 weeks of August (when
he worked 35.5 and 40 hours). During the weeks ending Sep-
tember 3 and 10 Jarrett worked only 16 hours (2 days) a week,
and he was off from then through the week ending October 1.
I find, however, that Jarrett’s illness was not the reason for
Simms’ transfer. The company exhibit (R. Exh. 7) further
shows that before Simms’ transfer, the Company had already
hired a new employee, Ralph Ortagus, to fill in for Jarrett.
Ortagus worked 27.5 hours during the week ending August 27,
the week before Simms was transferred to the rail building on
August 28, in the week ending September 3. Carter claimed on
direct examination, “I’m not exactly sure” when Ortagus was
hired (Tr. 157).
Regarding Carter’s credibility, she admitted being aware of a
union campaign at the Company, but falsely claimed (Tr. 179–
180) that the management was not opposed to a union (Tr. 75–
76). I discredit her claim that “No,” she did not know if Simms
ever engaged in any union activity (Tr. 165).
I infer that during the 15 minutes—between the time Speece
observed Simms wearing a union button on his cap and the time
Speece (following Moore’s instructions) told Simms he was
being transferred to the rail building—Speece (sharing an office
with Moore) reported Simms’ union activity to Moore, where-
upon Moore arranged with Carter for the transfer.
In drawing this inference, I have taken into consideration the
facts (a) that Speece had previously informed Simms that he
would be staying in the warehouse and (b) that Carter falsely
claimed that she needed Simms to fill in for the ailing rail la-
borer Jarrett, even though Ortagus had already been hired to fill
in for him.
I have also taken into consideration the admission in the
Company’s March 14, 1996 answer (G.C. Exh. at 2, par. 7(a)),
concerning its transfer of Simms to the rail building, that “the
hours of work for the rail building were sporadic around this
time period and that Mr. Simms’ hours would therefore be spo-
radic during that time.”
Under these circumstances, I find that the Company trans-
ferred Simms from his overtime warehouse job to the rail build-
ing because it knew the work there was sporadic. Within 3
weeks it was able to eliminate him from the payroll.
2. Reduction in hours of work
Simms had been permitted in the warehouse to work over-
time whenever he asked for it (Tr. 69). The evidence shows that
in the 7 weeks before his Monday, August 28 transfer, he
worked overtime in 6 of the 7 weeks, working an average of
53.08 hours (13.08 hours overtime) a week (from a low of 45.5
hours to a high of 64.25 hours). (In the remaining week ending
July 30, 4 weeks before his transfer, he worked 37.25 hours.)
Thus, in those 6 weeks, his average earnings were $200 a
week (40 hours at $5 an hour), plus $98 a week in overtime pay
at time and a half (13.08 hours at $7.50 an hour), totaling $298
a week (Tr. 12, 20; R. Exh. 7).
In the rail building after his August 28 transfer, Simms was
not permitted to work even 40 hours a week, although others in
the rail building cleaning rail cars with him were working over-
HARTLEY OIL CO. 1113
time. In his first week there, Simms was permitted to work
37.25 hours, being paid $186.25 (37.25 hours at $5 an hour)—a
reduction of $111.75, or 37.5 percent, from his average $298
weekly pay. In the second week he worked 33.5 hours (paid
$167.50)—a reduction of $130.50, or 43.8 percent. (Tr. 54, 62;
R. Exh. 7.)
In contrast, during those 2 weeks, laborer Scott Johnson
worked 50 and 40.75 hours (an average of 45.375 hours) clean-
ing rail cars, as compared to Simms’ 37.25 and 33.5 hours (an
average of 35.375 hours) (Tr. 62; R. Exh. 7). Supervisor
Carter’s only explanation for this disparity in the assignment of
work was that the work “goes on seniority” (Tr. 158)—even
though the employee with the least seniority, Ralph Ortagus,
worked 49.25 and 41.75 hours (an average of 45.5 hours) (R.
Exh. 7).
Carter testified that seniority in the rail building was in the
following order: Derenberger (the working foreman who
worked 50.5 and 48.75 hours cleaning rail cars those 2 weeks),
Jarrett (who was working only 2 days a week), then Johnson,
Simms, and Ortagus (Tr. 157). Yet, Carter assigned Simms
fewer hours than Ortagus—assigning Simms an average of
37.375 hours those 2 weeks after his transfer to the rail building
and Ortagus an average of 45.5 hours (with 9.25 hours of over-
time the first week and 1.75 hours of overtime the second
week) (R. Exh. 7).
The Company was obviously discriminating against Simms
in the assignment of work.
3. Simms’ layoff
Simms saw the work in the rail building slowing down and
asked Warehouse Supervisor Speece if there was work some-
where else in the plant. Previously when there was not enough
work in the rail building, employees had been transferred to the
warehouse or to the extruder building, where they “melt down”
fiber and “it comes out plastic.” Speece said there was no work
in the warehouse and, without explanation, said that Simms
“wasn’t allowed” in the extruder building (evidently during the
organizing campaign). (Tr. 21, 26–27, 65–67, 79–80, 118, 146.)
At 10:12 a.m. on Wednesday, September 20 (Simms’ third
week in the rail building), after working 3-1/4 hours that day
and 20-3/4 hours that week, he was sent home for lack of work.
Ortagus continued working until 3:56 p.m., for 9 hours that
day. (Tr. 48; R. Exhs. 9–10.)
That evening Simms’ father advised him to get a low earn-
ings slip from the Company to enable him to draw partial un-
employment compensation while working less than full time.
The next morning he clocked out at 10:10 and went to Vice
President Bernard Lyons’ office. He asked Lyons for such a
slip and explained that he could not meet his expenses because
of the reduced hours. Lyons telephoned Supervisor Carter to
determine how many hours would be available for Simms to
work. Carter, who had already laid off Ortagus that morning,
advised Lyons that there “would be little to none” for Simms
and that he would be the next one laid off. (Tr. 21–24, 49–54,
67, 113–115, 127, 162–165, 174, 182–184, 204–206; G.C.
Exhs. 3 at. 25–26, 6, 8; R. Exhs. 9–10.)
As Simms credibly testified, Lyons refused to give him a low
earning slip and “told me that I’d be better off taking unem-
ployment because I would make more money from unemploy-
ment than I would be working.” Simms asked if there was “any
work for me here to do besides being laid off” because “I
couldn’t afford to be laid off at that time,” and “He told me no.
I was better off going on unemployment . . . I said if that’s the
only thing I can do I said I’m going to have to do it”—
consenting to the layoff. (Tr. 23, 69–70, 132, 206–207.)
Lyons laid Simms off that morning and, as Simms further
credibly testified, “[T]old me if more work come in they would
call me [emphasis added] and I gave him my name, and my
address, and my phone number.” I discredit Lyons’ claims that
there was no discussion of low earnings or of future job oppor-
tunities. (Tr. 23, 115–116, 123; R. Exh. 8.)
The Company’s own exhibit (R. Exh. 7) shows a large
amount of overtime in the rail building after the week when it
laid Simms off.
In the first 2 weeks after the layoff, laborer Johnson work 53
and 65 hours (averaging 59 hours). In the next 6 weeks, in the
weeks ending October 8 through November 12 (after laborer
Jarrett returned to work), Jarrett and Johnson worked a total of
734 hours, averaging 61.166 hours a week. The average weekly
overtime was 21.666 hours (61.166 total hours minus 40
straight-time hours). If the Company had recalled Simms as
promised and if the work were divided equally, Jarrett, John-
son, and Simms would have averaged 40.777 hours a week
(734 total hours divided by three employees divided by 6
weeks).
A recall of Simms in October would have meant a substan-
tial saving in overtime cost.
In the 6 weeks when Jarrett and Johnson worked 734 hours,
there were 254 hours of time-and-a-half overtime worked at
$7.50 an hour (734 total hours minus 480 straight-time hours,
40 hours a week times 2 employees times 6 weeks). This over-
time cost the Company $1905 (254 times $7.50). If Jarrett,
Johnson, and Simms had worked an average of 40.777 hours
those 6 weeks, with an average .777 of an hour in weekly over-
time, they would have worked a total of 14 hours of overtime
(.777 hour times 3 employees times 6 weeks). Those 14 hours
of time-and-a-half overtime at $7.50 an hour (14 times $7.50)
would have been only $105—a saving of $1800 in overtime
during those 6 weeks ($1905 minus $105).
I note that in the absence of Johnson on vacation during the
following week ending November 26, Jarrett worked more than
a double shift. He worked 81 hours, with 41 hours of overtime
that week. (R. Exh. 7.)
Simms was aware of this increased volume of work in the
rail building. He had driven past the facility and had seen “a
bunch of rail cars on the tracks.” He called the Company about
the first or second week of October and Vice President Phil
Southall (Rail Supervisor Donna Jean Carter’s father, who ap-
proved Carter’s hirings) answered the phone. Southall said
there was no work. About 1 to 3 weeks later, “I called back and
I had to speak to Bo Carter and he told me that there was no
work either.” (Tr. 25–26, 60–61, 65–66, 178.) Neither Southall
nor Bo Carter testified.
Meanwhile, the Company was hiring new employees in the
warehouse. An exhibit prepared by the Company (G.C. Exh. 7)
shows that the Company hired Bernard Statts and Teddy Scott
on November 3 and 18 and Jason Dennis and Jehovah Casto on
December 11 and 20 (Tr. 120, 153, 170, 198). None of the jobs
was offered to Simms, even though (a) he had worked in the
warehouse about 6 months, (b) Lyons promised that if more
work came in, they would call him, and (c) he repeatedly called
in, seeking work.
4. Contentions and concluding findings
The General Counsel contends in his brief (at 6) that the
Company “transferred Simms upon learning of the fact that he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1114
was trying to organize for the Union,” transferred him from the
warehouse to the rail building where the work was slow, and
“seized upon the opportunity to lay off Simms when he at-
tempted to seek low earnings benefits” or “more hours of
work.”
The Company contends in its brief (at 3), contrary to the
above findings, that “[w]ork in the warehouse was slowing
down and due to the illness of another employee, Mr. Simms
was needed back in the rail building.” It offers no explanation
for assigning more work to Ortagus than to Simms, even
though Ortagus had the least seniority.
Regarding Simms’ layoff on September 14, the Company
contends (at 3–4) that Simms “was upset by his low hours” and
that Lyons passed on to him the information from Supervisor
Carter that “it did not appear that work would be picking up
and, if further layoffs were necessary, Mr. Simms would be the
next person laid off.” It contends (at 4), contrary to Simms’
credited testimony, that when Simms “again stated he wanted a
regular paycheck, Mr. Lyons asked Mr. Simms if he was asking
for a voluntary layoff” and Simms “indicated that would be
acceptable.”
The Company concludes (at 6) that “[c]learly, the record es-
tablishes that any union activity by Mr. Simms was not a factor
in any employment decisions involving Mr. Simms.” I disagree.
The credible evidence shows that about 15 minutes after the
Company discovered that Lee Simms was supporting the Un-
ion, it transferred him from the warehouse where he was work-
ing much overtime, to the rail building where the work was
sporadic. It refused to inform him why he was being trans-
ferred. There was an ailing employees in the rail building, but
the Company had already hired Ortagus to fill in for him.
In the rail building, as found, the Company obviously dis-
criminated against Simms in the assignment of work. It as-
signed overtime work to Ortagus, the least senior employee,
while not permitting Simms to work 40 hours a week.
As the work in the rail building was slowing down, the
Company refused to return Simms to the warehouse, even
though it had informed him before his union activity that he
would be staying in the warehouse instead of returning to the
rail building.
On September 14, the Company refused to give Simms a
low-earnings slip and told him he would make more money
from unemployment than by working there. Simms said he
could not afford to be laid off at that time, but the Company
insisted that he would be better off on unemployment. He then
consented and the Company laid him off for lack of work, but
promised to recall him when more work came in.
The Company failed to recall Simms as promised when
much more work came in. It repeatedly told him there was no
work when he called in seeking work, even though the other
two employees in the rail building were working an average of
over 61 hours a week. Despite his requests to return to the
warehouse, where he had worked much overtime before he
revealed his union support, the Company hired new employees
instead of letting him work there.
Under these circumstances I find that the General Counsel
has made a strong prima facie showing sufficient to support an
inference that the Company’s motivation for transferring Lee
Simms from the warehouse to the rail building where the work
was sporadic was to eliminate him from the payroll for engag-
ing in protected union activity. Wright Line, 251 NLRB 1083
(1983).
Finding all of the Company’s defenses to be lacking in merit,
I find that the Company has failed to meet its burden of proof
that it would have transferred Simms, reduced his hours of
work, and laid him off in the absence of his protected union
activity.
I therefore find that the Company discriminatorily (a) trans-
ferred Lee Simms from the warehouse to the rail building on
August 28, 1995, (b) reduced his hours of work, and (c) laid
him off on September 14, 1995 because of his union activity,
violating Section 8(a)(3) and (1) of the Act.
B. Unlawful No-Solicitation Policy
During the union organizing campaign, the Company main-
tained in its employee handbook the following provision (G.C.
Exh. 4 p. 16):

No Solicitation policy
The Company has a firm No Solicitation policy for employ-
ees and nonemployees on company property [emphasis
added]. Solicitation for charity will be permitted only by au-
thorization of Mr. R. P. Hartley.

The Company admits in its brief (at 9, 17) that this solicita-
tion policy, as written, was “facially overbroad” and “facially
unlawful” (prohibiting union solicitation by employees on their
own time before and after work and during breaks and lunch-
time), but contends that “as enforced, it was legal” (referring to
solicitations for charity, school function, and similar activities).
There is no evidence that it permitted union solicitations by
employees “on company property” during the organizing drive
when they were not working.
The Company further contends in its brief (at 10, 18) that no
remedy is required because on March 1, 1996 (several months
after the union campaign and after the Company’s discrimina-
tion against Lee Simms for wearing a union badge on his hat),
it changed the policy, referring to its revision of the unlawful
provision in its employee handbook (R. Exh. 6).
Although the General Counsel does not challenge the legal-
ity of the revised provision, he points out in his brief (at 13–14,
16) that the Company has failed to prove that it has effectively
repudiated the former no-solicitation policy and given assur-
ances that in the future it will not interfere with the exercise of
the employees’ Section 7 rights. Passavant Memorial Area
Hospital, 237 NLRB 138 (1978).
I find that by maintaining the unlawful no-solicitation policy
in its employee handbook during the Union’s organizing drive,
the Company engaged in conduct that tended to coerce employ-
ees in the exercise of their Section 7 rights, violating Section
8(a)(1).
C. Interrogation
Patrick Flinn, one of the leads in the warehouse, credibly tes-
tified that Warehouse Supervisor “kept on asking me who all
was involved in the Union and who all I thought was in the
Union, and what I thought about it” (Tr. 77). The General
Counsel contends in his brief (at 12, 15) that this questioning of
Flinn concerning his union sympathies and that of other em-
ployees was coercive interrogation in violation of Section
8(a)(1).
Like other leads, Flinn was a working foreman. He was paid
$6.25 an hour, which was $1.25 more than the warehouse la-
borers’ $5 wage rate. He and the other leads, as part of man-
agement, were given the TIPS training for their conduct during
the union organizing drive. (Tr. 73–74, 80, 137; R. Exh. 2.)
HARTLEY OIL CO. 1115
Although he had limited authority as a supervisor, the credi-
ble evidence shows that Patrick Flinn assigned and responsibly
directed the warehouse laborers on his shift (Tr. 71, 82, 97–98,
137–138, 140, 148–151, 185–187). I therefore find that he was
a statutory supervisor as defined in Section 2(11) of the Act.
Accordingly I find, in agreement with the Company, that the
conversations he had with management regarding union activity
were not prohibited by the Act and that the allegation of coer-
cive interrogation must be dismissed.
CONCLUSIONS OF LAW
1. By discriminatorily transferring Lee Simms from the
warehouse to the rail building on August 28, 1995, reducing his
hours of work, and laying him off on September 14, 1995, be-
cause of his union activity, the Company has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(3) and (1) and Section 2(6) and (7) of the Act.
2. By maintaining an unlawfully broad no-solicitation policy
during the 1995 union organizing drive, the violated Section
8(a)(1).
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily transferred an em-
ployee from the warehouse to the rail building for the purpose
of eliminating him from the payroll, then discriminatorily re-
duced his hours of work and laid him off, it must offer him
reinstatement to the warehouse and make him whole for any
loss of earnings and other benefits, computed on a quarterly
basis from the date of the transfer to the date of a proper offer
of reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, Hartley Oil Company, Inc., Ravenswood,
West Virginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Transferring, reducing working hours, laying off, or oth-
erwise discriminating against any employee for supporting Oil,
Chemical and Atomic Workers International Union, AFL–CIO
or any other union.
(b) Maintaining an overly broad no-solicitation policy pro-
hibiting employees from soliciting for a union on their own
time before and after work and during breaks and lunchtime.
(c) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
2 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.
(a) Within 14 days from the date of this Order, offer Lee
Simms full reinstatement to his former job in the warehouse or,
if that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights or
privileges previously enjoyed.
(b) Make Lee Simms whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful transfer and layoff, and
within 3 days thereafter notify the employee in writing that this
has been done and that the transfer and layoff will not be used
against him in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cility in Ravenswood, West Virginia, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 9, 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 altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since August 28, 1995.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
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 ordered us to post and abide
by this notice.

WE WILL NOT transfer, reduce your wages, lay you off, or oth-
erwise discriminate against any of you for supporting Oil,
Chemical and Atomic Workers International Union, AFL–CIO
or any other union.
3 If this Order is enforced by a Judgment of the 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1116
WE WILL NOT maintain an overly broad no-solicitation policy
prohibiting you from soliciting for a union on your own time
before and after work and during breaks and lunchtime.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s Order,
offer Lee Simms full reinstatement to his former job in the
warehouse 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.
WE WILL make Lee Simms whole for any loss of earnings and
other benefits resulting from his discharge, less any net interim
earnings, plus interest.
WE WILL , within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful transfer
and layoff of Lee Simms, and WE WILL , within 3 days thereaf-
ter, notify him in writing that this has been done and that the
transfer and layoff will not be used against him in any way
HARTLEY OIL COMPANY, INC.