Leonard Refineries, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1964

147 N.L.R.B. 488 (N.L.R.B. 1964)

488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in and is engaging in an unfair labor practice within the meaning of Sec-
tion 8 (,a)(5) and (1) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing and the entire record in this and the representation
proceeding , I reaffirm my Recommended Order issued May 2, 1963, that Respondent
bargain collectively with the Charging Union on request , and post appropriate notices,
as therein stated.
Leonard Refineries , Inc. and Local 7-540, Oil, Chemical and
Atomic Workers International Union , AFL-CIO . Case No.
7-CA-4363 (3). June 17, 1964
DECISION AND ORDER
On March 17, 1964, Trial Examiner John P. von Rohr issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices, but that these did
not warrant remedial action, that the Respondent had not engaged
in other unfair labor practices as alleged in the complaint, and recom-
mending that the complaint be dismissed in its entirety, as set forth
in the attached Decision. Thereafter, the General Counsel filed ex-
ceptions to the Trial Examiner's Decision and a supporting brief, and
the Respondent filed a brief in answer to the. General Counsel's
exceptions and brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Trial Examiner's Decision and the
exceptions and briefs, and hereby adopts the Trial Examiner's
findings,' conclusions, and recommendations with the following
modifications.
The Trial Examiner found that Respondent violated Section
8 (a) (1) of the Act by Chief Operator Miller's remark to employees
Ropp, Batchelder, and Davenport that if the Union won the election
the annual Christmas bonus would not be paid. Nevertheless, because
he viewed this as an isolated incident and because Chief Operator
Miller is now deceased, the Trial Examiner was of the opinion that
a remedial order would serve no useful purpose and recommended that
the.complaint be dismissed in its entirety.
' In the absence of exceptions thereto, the Board adopts pro forma the Trial Examiner's
dismissal of the complaint insofar as it alleged threats of adverse change in seniority
standing if the Union were selected as the collective -bargaining agent.
147 NLRB No. 66.
LEONARD REFINERIES, INC. 489
We agree with the Trial Examiner that Miller's statement to the
three employees constituted a violation of Section 8 (a) (1) of the Act.
However, contrary to the Trial Examiner, and in agreement with
the General Counsel, we believe that it will effectuate the policies of
the Act to issue a remedial order herein. For, the record shows that,
during the critical preelection period, the Christmas bonus was an
issue of primary concern to the employees. Therefore, the comment
was likely to receive prompt and wide circulation 2 Further, we do
not consider Miller's statement to the three employees to be isolated
although made only once.' Finally, Chief Operator Miller's untimely
demise 6 months after the election does not alter the effect of the
violation of the Act. In sum, as we consider the unfair labor prac-
tices substantial, we find that the issuance of an order against the
Respondent is warranted. Therefore, in order to remedy the viola-
tions found,4 we shall direct the Respondent to cease and desist. there-
from and to post an appropriate notice to its employees.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that Re-
spondent, Leonard Refineries, Inc., of Alma, Michigan, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Threatening its employees with loss of the annual Christmas
bonus if they select the Union as their collective-bargaining
representative.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist Local
7-540, Oil, Chemical and Atomic Workers International Union, AFL-
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employ-
ment as authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
2 Plum Creek Logging Company, Inc., 113 NLRB 800, 813.
8 Ibid. and see, e.g., Playskool Manufacturing Company, 140 NLRB 1417, 1418.
The General Counsel also took exception to the Trial Examiner's finding that solicita-
tion of employees to form their own grievance committee did not violate the Act and con-
stituted statements protected by Section 8(c) of the Act. We deem it unnecessary to
consider his exception as a contrary conclusion could not affect the scope of the Order
herein. Accordingly, we do not pass on or adopt the Trial Examiner's findings in this
respect.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the polices of the Act :
(a) Post at its plant No. 1, located in Alma, Michigan, copies of the
attached notice marked "Appendix." s Copies of said notice, to be
furnished by the Regional Director for the Seventh Region, shall,
after being duly signed by the Respondent's representatives, be
posted by the Respondent immediately upon receipt thereof, and be
maintained by Respondent for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken by the Respondent to comply herewith.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify our employees
that:
WE WILL NOT threaten to discontinue the annual Christmas
bonus if our employees choose Local 7-540, Oil, Chemical and
Atomic Workers International Union, AFL-CIO, as their col-
lective-bargaining representative.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right of self-
organization, to form labor organizations, to join or assist the
above-named Union or any other labor organization,- to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized by Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
LEONARD REFINERIES, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
LEONARD REFINERIES, INC. 491
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Mich-
igan, Telephone No. 963-9330, if they have any questions concerning
this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge, duly filed, the General Counsel for the National Labor Rela-
tions Board, for the Regional Director for the Seventh Region (Detroit, Michigan),
issued a complaint on November 8, 1963, against Leonard Refineries, Inc., herein
called the Respondent or the Company, alleging that it had engaged in certain
unfair labor practices affecting commerce within the meaning of Section 8(a)(1)
of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the
Act. The Respondent's answer denies the allegations of unlawful conduct alleged
in the complaint.
Pursuant to notice, a hearing was held in Alma, Michigan, on December 11, 1963,
before Trial Examiner John P. von Rohr. All parties were represented by counsel
and were afforded full opportunity to adduce evidence, to examine and cross-examine
witnesses, and to file briefs. Briefs were filed by the General Counsel and the Re-
spondent and they have been carefully considered.
Upon the entire record in this case, and from my observation of the witnesses,
I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Leonard Refineries, Inc., is a Michigan corporation with plants located in the
vicinity of Alma, Michigan, where it is engaged in the extraction and refining of
crude oil and the marketing,of oil and derivative petroleum products. Plant No. 1,
located in Alma, Michigan, is the only facility involved in this proceeding. Dur-
ing the fiscal year ending March 31, 1963, the Respondent shipped products manu-
factured at its plant No. 1 in Alma, Michigan, valued in excess of $500,000 to points
and places located outside of the State of Michigan.
The Respondent concedes, and I find, that it is and has been engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Local 7-540, Oil, Chemical and Atomic Workers International Union, AFL-
CIO, at times herein referred to as the Union, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent operates three refineries in the State of Michigan. Plant No. 1,
located at Alma, Michigan, is the only facility involved in this proceeding. Plant
No. 2, also located in Alma, Michigan, and plant No. 3, located in Mount Pleasant,
Michigan, are organized and represented by the Charging Union. On or about
April 18, 1963, the Union commenced an organizational campaign among the
employees in plant No. 1, this campaign culminating in a Board-conducted repre-
sentation election which the Union did not win on June 5, 1963. The complaint
in this case specifies three instances in which the Respondent is alleged to have
engaged in conduct violative of Section 8(a)(1) of the Act during the Union's orga-
nizational campaign. These incidents are set forth as follows:
1. William Busch, a vacuum-crude operator employed by the Respondent since
1957, testified concerning a conversation which he had on April 22, 1963, with
Clayton E. Weaver, the assistant refinery manager. Busch testified that his dis-
cussion with Weaver was prompted by a technical work problem that had arisen sev-
eral days earlier. Busch's testimony concerning this conversation is as follows: "He
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Weaver] started talking about the upset that we'd had with the crude unit and
switched over and said that within three months they were going to have a new
crude unit in Plant One and they were going to shut Midwest down and they wanted
to bring the men from Midwest over to Plant One and at least one with sixteen-year
seniority."
Vane J. Mills, a technical employee who has worked for the Respondent for over
17 years, testified to a similar conversation which he had with Weaver in the latter
part of April. Mills' brief testimony concerning this conversation is as follows:
"In the course of the conversation-I don 't know who started it-I asked him if
there was anything to the rumor that we were going to get a new unit in the plant.
He told me that he thought it was a pretty sure thing that we'd get a new vacuum
crude unit . I said that I thought it was a good thing; that it would mean a move up
for some of the fellows with lower jobs. Mr. Weaver said that it would be a good
thing in a way, and in another way, it wouldn't, because there would be men from
Midwest-I think he told me about eighteen-that would be moved over and some
of them had more seniority than I had."
The complaint alleges that by the above conversations , "Respondent , by its agent
Clayton. E. Weaver . . . threatened its employees with adverse changes in their
seniority standing or tenure of employment if the Union was selected as their col-
lective bargaining agent." While I indicated at the hearing that I was disposed to
dismiss this allegation of the complaint, the General Counsel has filed a brief in
which he adheres to his position that the testimony set forth above is sufficient to
establish the complaint 's allegation as aforesaid . Without restating the General
Counsel 's argument in this regard , I shall state only that in my opinion his reasoning
is extremely farfetched and would require the piling of inference upon inference
to support any finding that Weaver threatened these employees with adverse em-
ployment changes if the Union was selected as their bargaining agent. As the
testimony discloses on its face , neither of these conversations had any reference
to, or arose in the context of, the employees ' union activity . In fact, there is no
evidence that Weaver mentioned or discussed the Union or union activity with any
of Respondent 's employees-nor is there evidence that any other supervisor dis-
cussed such activity with employees Busch and Miller. In short , I shall recommend
that this allegation of the complaint be dismissed.
2. Allan Ropp, a T.C.C. operator , testified that on or about May 20 he was present
in the control room with his two helpers , Lee Batchelder and Virgil Davenport, when
Charles Wilson , the chief operator , entered the room while making the rounds as was
his custom . Ropp testified that somehow the subject of the Union was brought up
(he did not know by whom ) and that Wilson thereupon made a statement to the fol-
lowing effect : "Why would we want to pay the high union dues when we could have
our own grievance committee-we could have our own grievance committee and meet
with management once a month and discuss things ; everything would be settled and
we wouldn 't have to pay union dues ." I I perceive nothing in the foregoing state-
ment by Wilson which would have the effect of restraining or coercing employees
in the exercise of the rights guaranteed by Section 7; nor do I equate this isolated re-
mark to .the situation where an employer unlawfully urges and directs his employees
to establish an employee committee for bargaining purposes .a At best I am convinced
that Wilson's statement was a statement of his opinion 3 As such , and since it was un-
accompanied by any threat or promise of benefit , it was protected under Section 8(c)
of the Act. Accordingly , I find that Respondent did not violate Section 8(a)(l)
of the Act by Wilson's statement as aforesaid and I shall recommend that this allega-
tion of the complaint be dismissed.
3. About May 10 , 1963, employees Ropp , Batchelder, and Davenport were con-
gregated in the control room of the T.C.C. unit when they were joined by Dallas
Miller , the chief control officer , who was then on duty . After some ordinary dis-
cussion "about different things," Miller spoke up and said , "You fellows know what
will happen when you vote the union in. You'll lose your Christmas bonus because
i Although Wilson testified that he did not recall having said anything of this nature to
employees Ropp, Batchelder, or Davenport, I credit Ropp's testimony to the above effect.
Not only did Ropp impress me as an honest witness, but his testimony concerning this
incident was substantially corroborated by Batchelder.
2 Cf. Alberto Culver Company, 136 -NLRB 1432.
9 That this is so is further borne out by the testimony of employee Lee Batchelder who
said that he overheard this remark by Wilson . When asked to cite his version of Wilson's
statement , Batchelder testified : "It was to the extent that he felt that it would be more
beneficial to us to form our own grievance committee than to have a union be placed in
the plant." [Emphasis supplied.]
STORACK CORPORATION 493
the company does not have to pay that if you're union shop." 4 While there can be no
doubt that such threat clearly constitutes interference , restraint, and coercion within
the meaning of Section 8(a) (1) of the Act, it must be pointed out that: (1) Chief
Operator Miller is now deceased ,5 and (2 ) in a plant with a complement of 169 em-
ployees at the time of the election , this is the sole incident during the entire organiza-
tional campaign , insofar as the record discloses , that Respondent may be said to
have engaged in any conduct proscribed by the Act. Accordingly, in view of the
isolated nature of the remark made by a supervisor now deceased , I find that it would
not serve any useful purpose to issue a remedial order in this case,6 and I shall there-
fore recommend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Leonard Refineries , Inc., is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Local 7-540, Oil, Chemical and Atomic Workers International Union, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act.
3. Except for the isolated incident found in subparagraph numbered 3 of paragraph
III, above , the Respondent has not engaged in any other unfair labor practices as
alleged in the complaint.
4. A cease and desist order will not serve any useful purpose in the circumstances
of this case.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, it is hereby recommended that the complaint herein be
dismissed in its entirety.
4 The credited testimony of Ropp, as corroborated by Batchelder and Davenport. Al-
though the Respondent has pointed to some minor variance in the testimony of these em-
ployees, I have no doubt, and I find, that the essence of Miller's statement on this occasion
was essentially that as set out above.
5 Miller was deceased on November 10, 1963, which was prior to the hearing herein.
6 See Becker & Sons, Inc., 145 NLRB 1788.
Storack Corporation and International Brotherhood of Boiler-
makers, Iron Shipbuilders , Blacksmiths , Forgers and Helpers,
AFL-CIO. Case No. 13-CA-5780. June 17, 1964
DECISION AND ORDER
On January 23, 1964, Trial Examiner Stanley Gilbert issued his De-
cision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain af-
firmative actions, as set forth in his attached Decision. Thereafter,
the General Counsel and the Respondent filed exceptions to the De-
cision with supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
147 NLRB No. '64.