Sun Petroleum Products Company

National Labor Relations Board - Board Decisions

Jul 31, 1981

257 N.L.R.B. 450 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sun Petroleum Products Company, a Division of Sun
Oil Company of Pennsylvania and Hugh
McKinney and International Brotherhood of
Electrical Workers, Local Union No. 278. Cases
23-CA-7227, 23-CA-7453, 23-CA-7611, and
23-CA-7453-2
July 31, 1981
DECISION AND ORDER
On July 17, 1980, Administrative Law Judge
William J. Pannier III issued the attached Decision
in this proceeding. Thereafter, counsel for the Gen-
eral Counsel filed exceptions and a supporting
brief. Respondent filed cross-exceptions and a brief
opposing the General Counsel's exceptions and in
support of the Administrative Law Judge's Deci-
sion.
The National Labor Relations Board has consid-
ered the record and the attached Decision in light
of the exceptions and briefs and has decided to
affirm the rulings,' findings, and conclusions of the
Administrative Law Judge and to adopt his recom-
mended Order.
We agree with the Administrative Law Judge's
finding that Respondent did not contravene Hugh
McKinney's Weingarten2 rights by suspending him
for refusing to attend an interview. However, we
disagree with his rationale for this finding.
The Administrative Law Judge properly found
that prior to March 19, 1979, 3 Respondent decided
to suspend McKinney for refusing to follow Fore-
man McKenzie's direction to work overtime on
March 16. At work on March 19, McKenzie di-
rected McKinney to report to Maintenance Man-
ager Johnson's office. It was unclear whether
McKinney was told the purpose of the meeting.
However, it is undisputed that McKinney phoned
Johnson from the shop area and that Johnson said
that the meeting concerned the incident on Friday,
March 16. McKinney refused to report to John-
son's office unless he was accompanied by a wit-
ness, although he did report to the area outside
Johnson's office without a witness. When Respond-
ent refused to permit him to have a witness, he ran
from the area outside Johnson's office back to the
plant floor with Respondent's officials pursuing
him. Arriving on the plant floor, McKinney called
two employees to witness the incident. Respond-
' The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Slundard Dry
Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing his findings.
2 NL.R.B. J Weingartel. Inc.. 420 US. 251 (1975)
:' All dates are in 1979 unless otherwise indicated.
ent's officials sought to have McKinney leave the
plant. McKinney refused to do so unless he could
speak with Refinery Manager Laird. Following a
heated exchange during which it became clear to
McKinney that Laird was not going to meet with
him, McKinney left the plant. Before he left he
was told he was being suspended indefinitely.
Later that day Respondent assembled a panel of
supervisory personnel to investigate the McKinney
case. The panel interviewed those employees (other
than McKinney) who had knowledge of or who
were directly involved in the March 16 overtime
incident. The investigation confirmed the facts on
which Respondent based its earlier decision to sus-
pend McKinney.
Subsequently, on March 23, Human Resources
Manager Fleming, by letter, invited McKinney to
attend a meeting scheduled for March 28, at which
the parties would "review the facts and circum-
stances leading to [McKinney's] indefinite suspen-
sion." He was advised that he could choose a
fellow employee to accompany him to the meeting
if he wished. The letter also stated that the sole
purpose of the March 19 meeting had been to
inform McKinney of his suspension, not "to con-
duct a disciplinary interview," and he would not be
suspended for having refused to attend the March
19 meeting. McKinney refused to attend the March
28 meeting because Fleming told him that he could
not bring a representative of the Union, instead of
an employee, to the meeting.4 On March 29, Re-
spondent, by letter of that date, discharged McKin-
ney.5
The consolidated complaint alleges, inter alia,
that Respondent suspended Hugh McKinney in
violation of the National Labor Relations Act, as
amended, because he refused on March 19 to
attend a meeting which he reasonably believed
would result in discipline, after Respondent refused
his request to have a representative accompany
him. The Administrative Law Judge observed that
the Supreme Court in N.L.R.B. v. J. Weingarten,
Inc.,6 held that an employee has a Section 7 right
to a representative at an interview where he rea-
sonably fears that disciplinary action will be taken
'At the time of the hearing, Respondent's employees were not repre-
sented by a union, although the Oil, Chemical and Atomic Workers, and
the International Brotherhood of Electrical Workers, Local Union No.
278, had attempted unsuccessfully to represent Respondent's employees.
The Regional Director fr Region 23 dismissed two representation pe-
titions filed by the IBEW in June 1978 At the time of the hearing in the
instant case, no representation petitions had been filed since the dismissal
of those two petitions.
The Administrative Law Judge found, and we agree for the reasons
stated by him, that McKinne 's discharge was not discriminatorily moti-
valed as contended hby the General Counsel. There was no contenion
that McKinney wais unla fiully discharged for his failure to attend the
March 28 meeting.
` Supra at fi 2
257 NLRB No. 48
450
SUN PETROLEUM PRODUCTS COMPANY
against him. The Administrative Law Judge con-
cluded, however, that under the principles estab-
lished in Baton Rouge Water Works Company, 246
NLRB 995 (1979), no Weingarten right existed in
the instant case. In Baton Rouge, the Board held
there is no statutory right to representation at an
interview called by the employer when the purpose
of the interview is simply to inform the employee
of, or impose, previously determined discipline.
Here, the Administrative Law Judge reasoned that,
because McKinney's discipline had already been
decided upon, the interview, had it occurred on
March 19, would have merely served the purpose
of informing him of the decision. Accordingly, he
found that no Weingarten right arose in connection
with the scheduled interview. 7 We disagree.
McKinney was approached by his foreman,
McKenzie, on the next workday following his re-
fusal to comply with McKenzie's order to work
overtime, and was told by McKenzie to report to
Maintenance Manager Johnson's office. McKinney
telephoned Johnson and was told by Johnson that
the meeting concerned the incident on Friday. No
other information was given McKinney about the
meeting. McKinney then refused to attend the in-
terview unless he was accompanied by a witness.
At this point, we find that McKinney had reason to
believe that disciplinary action could be taken
against him, and that, under Weingarten, he had a
statutory right to representation at the interview.
In this regard, Respondent's request that McKin-
ney report to a meeting is the classic situation con-
templated by Weingarten.
Respondent, however, refused McKinney's re-
quest to have a witness present and McKinney re-
fused to attend the interview and ran back to the
shop area. Confronted with McKinney's refusal
and his running back into the shop, Respondent's
representative followed McKinney and attempted
to persuade him to leave the refinery.' Thereafter,
on the same day, Respondent conducted an inde-
pendent investigation of the McKinney case.
The Administrative l.aw Judge also relied on Roadway Expresr. inc.
246 NLRB 1127 (1979). to find the 'Wingaren doclrine inapplicable to
the instant case Roadwa' E.xpreo held that an enmplo ee may request
union representation swhile on the plant floor. but he mas not refuse to
report to the office ;is directed, and lunderilne the emploler's right to
maintain discipline and order
The Administratise Las Judge found that, by first refusing to leave
the shop area and h then refusing to go all) farther than he office im-
medialel outside Jhnson's ffice, McKinney forfeited his W'einrlgart
rights as did the employee it Roadayv '.rpress. We disagree. While
McKinlne) refused Io go into Johnson's office, he did follow Respond-
ent's directise to lease the shop area. and he reported io he office ad-
joining Johnson's. Thus. ulike the situation in Roadwar Expre.o. McKin-
ne did not attempt to compel Rponldent to contduct its business i the
shop area or undermine its right 11 malintain order ill its operatiions
' There is no contention. nor do we find. that the exchange beiteen
McKinney and Respondent's official constituted all intervie. or that this
e xchanlge pla!ed aI role in Mc Knex)'s suspelnsion or discharge
Respondent's actions concerning its refusal to
conduct an interview with McKinney in the pres-
ence of a witness of his choice were consistent
with the rights of an employer as discussed by the
Court in Weingarten. The Court stated:
The employer has no obligation to justify his
refusal to allow union representation, and de-
spite refusal, the employer is free to carry on
his inquiry without interviewing the employee,
and thus leave to the employee the choice be-
tween having an interview unaccompanied by
his representative, or having no interview and
forgoing any benefits that might be derived
from one. [Id. at 258.1
Accordingly, we find no violation of the Act in-
asmuch as no interview occurred on March 19.
Thus, we find that Baton Rouge does not apply. Al-
though Respondent made a prior decision to sus-
pend McKinney, no interview took place and we
are therefore led to speculate as to what might
have happened had the interview been conducted.
In these circumstances we cannot say that the
scheduled interview, like that which was conduct-
ed in Baton Rouge, would not have given rise to
the statutory right to representation.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaints be, and they
hereby are, dismissed in their entirety, and that the
settlement agreement in Case 23-CA-7227 be, and
it hereby is, reinstated.
DECISION
STATEMENT OF THE CASE
WII.I.IAM J. PANNIER III, Administrative Law Judge:
This matter was heard by me in Corpus Christi, Texas,
on December 18, 1979, and on January 22 and 23, 1980.
On July 12, 1979, the Regional Director for Region 23 of
the National Labor Relations Board issued an order con-
solidating cases, consolidated complaint and notice of
hearing-based upon unfair labor practice charges filed
in Case 23-CA-7453, by Hugh McKinney, on March 23,
1979, and in Case 23-CA-7453-2, by International
Brotherhood of Electrical Workers, Local Union No.
278, herein called the Union, on March 28. 1979-alleg-
ing that Sun Petroleum Products Company, a Division of
Sun Oil Company of Pennsylvania, herein called Re-
spondent, had violated Section 8(a)(1) of the National
Labor Relations Act, as amended, 29 U.S.C., §151, et
seq., herein called the Act, by indefinitely suspending
McKinney on March 19, 1979, because, after requesting
the presence of a witncss or representative. McKinney
451
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had refused to attend an interview that he had reasonable
cause to believe would result in disciplinary action. On
November 14, 1979, the said Regional Director issued an
order setting aside settlement agreement and withdraw-
ing approval of a settlement agreement in Case 23-CA-
7227, filed on September 1, 1978, by McKinney. Also on
November 14, 1979, the said Regional Director issued an
order consolidating cases, consolidated complaint and
notice of hearing, based upon the charge in Case 23-
CA-7227 and upon a charge in Case 23-CA-7611, filed
on July 17, 1979, by McKinney, alleging that Respond-
ent had violated Section 8(a)(3) and (1) of the Act by
terminating McKinney on March 29, 1979,' and had vio-
lated Section 8(a)(1) of the Act by unlawfully interrogat-
ing employees, by promising better working conditions
to employees if they would forgo union activities, by
creating the impression of surveillance of employees'
union activities, by accusing an employee of creating
"dissension" among other employees, and by directing
various threats against employees because of their union
or protected activities. At the hearing, the General
Counsel amended the consolidated complaints by adding
the allegation that Respondent had requested that em-
ployees receiving subpenas from the General Counsel
produce those subpenas and had told those employees
that copies of the subpenas were being made for their
personnel files.2
All parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses, and to file briefs. Based upon the entire
record, upon the briefs filed on behalf of the parties, and
upon my observation of the demeanor of the witnesses, I
make the following:
FINDINGS 01: FACT
I. JURISDICTION
At all times material, Respondent has been a Pennsyl-
vania corporation, with an office and place of business in
Corpus Christi, Texas, where it engages in the refining of
hydrocarbons. During the 12-month periods prior to issu-
ance of each of the consolidated complaints, which are
acknowledged to have been representative periods, Re-
spondent sold and shipped products, goods, and materials
valued in excess of $50,000 directly from its Corpus
Christi, Texas, facility to points outside the State of
Texas. Therefore, I find that, at all times material, Re-
spondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
In his brief, counsel for the General Counsel states that McKinney's
suspension of March 16, 1979, was also alleged to he a violation of Sec.
8(a)(3) and (I) of the Act in the consolidated complaint issued oni No-
vember 14, 1979. However, examination of that consolidated complaint
discloses that, while the discharge was specified as a ,iolation. no metl-
tion was made of the suspension.
2In making his motion to amend with respect to this allegation, the
transcript shows that the General Counsel's representative stated "affida-
vit," rather than "subpoena" While no motion to correct the transcript in
this respect has been filed. it is nonetheless obvious from the context in
which the motion to amend as made that the transcript should read
"subpoena."
II. THE LABOR ORGANIZATION INVOLVED
At all times material, the Union has been a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Oil, Chemical and Atomic Workers, herein OCAW,
commenced an organizing campaign, seeking to repre-
sent certain employees employed by Respondent at its
Corpus Christi refinery. In February or March 1978, 3 at
the request of certain employees who were dissatisfied
with the progress of OCAW's campaign, the Union,
which had been representing certain other employees at
the refinery since 1973,4 commenced a campaign to orga-
nize the employees that OCAW had been attempting to
organize. On April 20, the Union filed two representa-
tion petitions, one seeking an election among employees
in the pump shop, including pump mechanics, and the
other seeking an election among employees in the instru-
ment shop, including instrument mechanics. On May 17,
a representation hearing was held to receive evidence
pertaining to the appropriateness of the units covered by
the two petitions and, on June 16, the Regional Director
for Region 23 issued a Decision and Order, dismissing
both petitions based upon the fact that the units sought
were too narrow to be appropriate. Thereafter, accord-
ing to McKinney and Union Business Manager Rick
Diegel, a joint organizing campaign has been conducted
by the Union and OCAW. Apparently, however, it has
not been a particularly viable one, for there is no evi-
dence that any further representation petitions have been
filed during the year and a half between dismissal of the
petitions filed by the Union and the commencement of
the hearing in the instant matter.
It is undisputed that during 1978 certain remarks had
been made to employees by Supervisor Ralph James5
which the General Counsel alleges to have been unlaw-
ful. Thus, in mid-February, during a conversation with B
Class pump mechanic Edward Y. Gillespie, James had
said that he had been hearing the names of Lonnie
Lewis, Arthur Kloth, and Gillespie "quite a bit in this
union organization out here," and did not want to hear
Gillespie's "name mentioned with this union any more."
In March or April, James asked A Class mechanic Glenn
Farris if he had any union cards and, after Farris had
denied possessing any, had asked if Farris intended to go
to the Union's meeting that night. Farris said that he did
plan to attend the meeting. Initially, James encouraged
him to do so. However, a few minutes later, James asked
Farris to accompany him on a truck ride to the tank
farm. While en route, James mentioned that rheumatoid
arthritis, such as Farris had, could make it difficult for an
employee working in the field and that Farris might be
considered to replace Howard Green, who worked in an
:' All dates in this portion of this Decision occurred in 1978 unless oth-
erwise stated.
' No evidence was presented concerning the scope of the units repre-
sented by the Union.
' During 1978, James. who had supervised the entire shop, had been a
supervisor within the meaning of Sec. 2(11) of the Act By the time of
the hearing, he had retired. He did not appear as a witness, although Re-
spondent did not assert that he had been unavailable
452
SUN PETROLEUM PRODUCTS COMPANY
air-conditioned sealed room, once Green retired. Then,
James referred to the union meetings and organizing, and
said that unions were all right in the construction indus-
try, but that they merely caused dissension in refineries
and, in any event, that Respondent's employees had good
working conditions.
James had been on vacation when the representation
hearing had been conducted. When he returned, he told
mechanic Ernie Davenport that "all this union stuff' had
created a mess at the plant and that he had heard that
Davenport had attended the hearing. 6 James inquired if
Davenport thought that the other employees were going
to like him for having attended. When Davenport replied
that he really did not care if they did so, James retorted
"that he damn sure didn't like me for it."
On a Wednesday in August, the Union and OCAW
conducted a meeting on the side of the road, near Re-
spondent's facility.' McKinney was involved in organiz-
ing the employees who attended and, on the following
day, was absent from work. This led James to comment,
to some of the employees, that McKinney had probably
gotten drunk at the Union's meeting and, as a conse-
quence, had been unable to report for work that day.'
When McKinney finally did report for work the follow-
ing week, he learned of James' remark and broached
James regarding it. Initially, James denied having made
such a statement. As the conversation progressed, it
became quite heated. McKinney accused James of being
a liar and summoned Gillespie, who confirmed that
James had said that McKinney had probably missed
work because he had gotten drunk at the Union's meet-
ing. James began to taunt McKinney, referring to him as
"Baby Huey." 9 As the confrontation progressed, Man-
ager of Facilities R. L. Hoerner' ° joined the group, but
he did not intervene. McKinney testified that at one
point James had said, "If you don't change your ways
you are going to be a permanent B Class if you don't get
run off first." However, though he continued to maintain
that James had made the remark about getting "run off,"
McKinney conceded that in a pretrial affidavit, given
within a month of this conversation, he had stated only
that "Ralph James then told me that if I didn't change
my ways I would be a B Class pump mechanic from
now on." Similarly, Gillespie testified that James had
said only that "Hugh's attitude was bad and that if he
didn't change it he would probably remain a B Class
from now on out there." Davenport testified that James
had said "that if Hugh didn't change his attitude he
6 As discussed more fully infra, Davenport had accompanied McKin-
ney when the Union had requested the latter to appear at the hearing as a
witness for the Union.
' Diegel and Davenport testified that the purpose for having the meet-
ing at that location had been so that everybody would know that it was
taking place and to encourage employees to attend.
" McKinney denied that beer had been served at the meeting Hoswe-
er, Davenport and Gillespie both testified that they had consumed beer
during the course of this particular meeting and Diegel testified that he
had provided beer and soft drinks at these meetings henever he had the
time and the money.
9 McKinney testified that James would refer to him as "Baby Huey"
on those occasions when James would attempt to upset him.
"' It is undisputed that during 1978 Hoerner had been a supervisor
within the meaning of Sec. 2(11) of the Act
wouldn't have to worry about any advancement or any-
thing else at Sun Oil Company."
In addition to James, the General Counsel also alleges
that, on one occasion in 1978, Hoerner also had made
unlawful statements. During the representation hearing,
Diegel had made a telephone call to Respondent's refin-
ery and had requested that Davenport locate a witness
for the Union to call to rebut certain testimony given by
Respondent's officials. McKinney volunteered and he
asked John Paul Makush t" if he could leave to go to the
courthouse on legal business. After speaking with
Hoerner, Makush said that McKinney could do so. Dav-
enport also asked if he could leave to attend to legal
business at the courthouse. 2 In the process of granting
that request, Makush inquired when the Union had
moved its office to the courthouse. Davenport and
McKinney attended the hearing, but only the latter was
called by the Union as a witness.
On the following morning, they were summoned to a
meeting with Makush, Hoerner, and Manager of Mainte-
nance Jerry Dan Johnson.'3 At that meeting, Hoerner
questioned their truthfulness because they had merely
asked to be excused from work the prior day to attend to
legal business, without having specifically said that they
intended to go to the hearing. Hoerner said that the
hearing had not been a legal proceeding but that, in any
event, Repondent's supervisors had been instructed to re-
lease any of the employees whose presence had been re-
quested there. He asked how the two employees had
come to attend the hearing, whether they had been sub-
penaed or had been requested by name. McKinney testi-
fied that Hoerner had also inquired whether the Union
had paid the two employees to attend the hearing. Dav-
enport testified that Hoerner had said that the two em-
ployees would not be paid for attending the hearing.
During the course of the meeting, Johnson asked wheth-
er the two employees had heard anyone lie while testify-
ing at the hearing and McKinney retorted that Respond-
ent's witnesses should have received Oscars for their per-
formances. As the meeting progressed, it became more
heated and repetitive, but when the two employees at-
tempted to leave at one point, Johnson instructed them
to remain until excused, pointing out that it was Re-
spondent who signed their paychecks.
The foregoing conduct was encompassed by the inves-
tigation of the charge in Case 23-CA-7227. On Septem-
ber 29, 1978, the Regional Director for Region 23 ap-
proved a settlement agreement, encompassing the unfair
labor practices disclosed during that investigation. There
is no allegation that Respondent thereafter violated the
Act until March 19, 1979,'4 when McKinney was sus-
" Makush is a Class A mechanic who acts as relief foreman when
needed. There is no contention that he has been a supervisor within the
mneanig of Sec 2(11 ) of tile Act
l! Both McKinny and Davenpolrt testified that they had not specifical-
l_ mentioned that they intenlded io attend the representltion hearing he-
cause the) felt that. had the) done so. the) would not have been permit-
ted to leave iork earl)
'' let'een Jlanuair 1')7 and April 1979., Johnson had been a supersi-
sor w ithin the meaning of1 Sec 2( 1 I of the Act
Unlllle s oithcrx.ise tated all dalie, hereafter occurred in 1979
453
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pended. The pertinent events preceding that suspension
are largely undisputed.
On Friday, March 16, McKinney had been scheduled
to work until 4 p.m., his normal quitting time, with Class
A mechanic Arthur Kloth. 's At approximately 3 p.m.,
Mechanical Foreman William Edward McKenzie, Jr., 16
instructed the two employees that they would have to
work overtime to complete repairs on the Udex area
GA-1407-2R glycol pump.' 7 McKinney replied that he
could not do so, adding that he had a doctor's appoint-
ment. 1 At least one employee, Farris, volunteered to
work in McKinney's stead. While there is some dispute
as to whether McKenzie had agreed to permit Farris to
do so, 19 it is undisputed that McKenzie initially did agree
to permit McKinney to leave at 4 p.m. if a replacement
worker could be secured.
McKenzie then2" told McKinney that in the future he
should advise Respondent either the evenings prior to or
the mornings of days when he would have to leave at
the normal quitting time. 2 McKinney admitted that he
had retorted that "I considered what I had going on out-
side of working hours was private and personal."
McKenzie, angered at this response, then withdrew per-
mission for McKinney to leave at 4 p.m. Nevertheless,
McKinney said he intended to leave at 4 p.m.2 2 McKen-
zie then stalked off after, according to McKinney, again
saying, "You are not going anywhere." Kloth, who had
been listening to the exchange, then told McKinney that
'" I'here is no cnltetion that Kloth had beenl a supervisor ithinl the
mleanllilg of Sec 2(11) of the Act.
" It is agreed that, at all times material through April, McKenzie h;ld
been a supervisor within the meaning of Sec. 2(11) of the Act
7 McKenzie testified that the unit foreman had reported that the pump
had to be completed before the weekend, when the maintenance employ-
ees are nol schediled to sw ork, so that, in effect, should the pump then ill
use malfunction, there wsould be a replacement pump available. thereby
avoiding the need to shut down the unit and to call back personnel for
weekend repair work.
a While Farris claimed that McKinney had said oly that "he had to
see the doctor that evenling." and although Kloth testified that McKilley
had said only that he had to "go t the doctor" McKinney conceded
that, as McKenzie testified, he had said that he had a doctor's appoint-
ienl. Due to McKinney's medical history. Respondent's officials sere
awsare that he had been receiving treatment from Chiropractor Black-
swood. In addition, Respondent's manager of human resources, Robert
Fleming whose family had also been receiving treatment from Black-
)wo(od, was aware that Blackwood followed a practice of not acceptilng
appointments.
'' McKenzie estified that when Farris had volunteered to work ias
McKinlney's replacement.l, he (McKenzie) had replied. "No, Glenn. You
are drawing Class 'A' pay and we need a helper." McKinney and Farris
both testified that McKenzie had said that it was all right for Farris to
replace McKinney if Responldetnt could not locate a helper or Class B
mechanlic to serve as his replacement Khlth testified that McKenzie had
never alswered when Farris had volunteered and, further, he testified
that he could ot even be certain that McKenzie had heard :arris olull-
leer
"' McKillney and Farris each testified that McKenzie had left the area
ind thetn had rettrnled. at which pinlt lie had asked McKinney to pro-
vide advance arninlg whell he had to leave early. Neither Kloth nor
McKenzie mIlade ally reference to such a hiatus inl the conllersltionll tat
afterroonl
! McKenzie testified that it had beet a courtesy" for employees to
provide such nlotification. He further testified that McKitney had been
the onIlly employee ho had not observed this "courtesy" i th e past.
t'here is lo eidence itha such pritr notification had beenl i requirement
l While McKilney claimed that lhe had been il great pain thalt da), it
is undisputed thiat McKilnnley never haid said Is much tlo McKenzie nor to
ally ther stperisor.
he could leave at 4 p.m. if he could not stand the pain
from his back. At 4 p.m., McKinney clocked out and left
for Dr. Blackwood's office. However, neither Kloth nor
McKinney reported to McKenzie, nor to any other su-
pervisor, that Kloth had excused McKinney at normal
quitting time.
After telling McKinney to remain, McKenzie had
gone to Johnson's office where he had reported what
had occurred. Johnson, who testified that he had never
encountered a prior instance where an employee had di-
rectly refused to perform work, contacted Hoerner who,
in turn, had contacted Fleming. The three of them-
Fleming, Hoerner, and Johnson-then met and, in light
of the novelty of the situation, reviewed Respondent's
policy book, to ascertain what, if any, rules would be
broken should McKinney leave at 4 p.m., as he claimed
that he would do. Subsequently, when McKenzie ascer-
tained that McKinney had punched out at 4 p.m. and
when he reported that fact to his three superiors, the
latter decided to suspend McKinney indefinitely. By way
of explanation for this decision, Fleming testified:
We had an incident reported by a supervisor that
as I knew the circumstances that Friday, it ap-
peared to me to be gross insubordination. However,
we had only the supervisor, supervisor's side of
what happened, and at that-at that time, if it
proved true, I guess I felt like it was a discharge-
able offense. However, I felt like it needed to be
looked into and to get all the people that were in-
volved in the situation together and find out the
facts.
Johnson testified that on Friday night, he had pre-
pared a draft of the suspension letter which was to be
given to McKinney. Inasmuch as Johnson's and Flem-
ing's Saturday commitments did not permit them to meet
to review the draft together, Johnson left it at the refin-
ery guard shack, where, during the course of the day,
both McKenzie and Fleming reviewed it. 23 On Saturday
evening, during a telephone conversation, Fleming noti-
fied Johnson that the draft was satisfactory. Both John-
son and maintenance assistant Darlene Cook Pyles, John-
son's secretary, testified that Johnson had called her on
Saturday evening and had directed her to pick up the
draft at the guard shack and to type it in final form so
that it would be ready first thing on Monday morning.
She testified that she had done so on Sunday. The letter
identified as being the one that she had typed was pro-
duced at the hearing. It opens by stating that "[i]n con-
firmation of your indefinite suspension . .. ," continues
by reciting the three specific rules that had been violated
by McKinney's departure on Friday evening, then states
that the violation of these rules on March 16 by McKin-
ney "constitutes a serious act of insubordination," an-
:' Whil te descriptiolls f the draft prosided bh Respondenl's v.it-
nesses largely correspionded, McKenzie testified that the draft had not
contlainled n;mailers relatinlg to Ihe heading (such as dite, from. to aild sub-
jicl). ssllile Pyles testified thal these items had been sswritienl oin the drafll
I l not regard such a discrepanllcy as materiall Sec. .g.. :.L.R.. . itn
/ernational Longlhoreinel & oli'archoucmen's I nr 1. Lul 0. e a jP'a-
(i/i( 3fartieuc t4oiuaion], 283 F 2d 558. 562 563 (9th Cir 196)).
454
SUN PETROLEUM PRODUCTS COMPANY
nounces that "the suspension will remain in effect until
further investigation is completed" and concludes by in-
forming McKinney that he could challenge Respondent's
actions through the grievance and arbitration procedure
in Respondent's working policies booklet. Johnson testi-
fied that it had been his intention to meet with McKin-
ney on Monday, to advise him of the suspension and to
give him the letter. He further testified that he "had no
intention of discussing with him what he did the previ-
ous Friday. I was going to leave it up to whoever inves-
tigated what happened."
After work had commenced on Monday, March 19,
McKenzie directed McKinney to report to Johnson's
office. 24 McKinney refused to do so unless he was ac-
companied by a witness, although he was willing to
report to Pyles' office, just outside that of Johnson. Re-
spondent refused to permit McKinney to have a witness,
relying upon Fleming's reading of the February 8 Com-
merce Clearing House Labor Law Guide which reported
a court case involving the right of employees to have
witnesses during interviews with management. When it
became clear to McKinney that he was not going to be
permitted to be accompanied by a witness during the
meeting with Johnson, he bolted from Pyles' office, re-
turning to the shop with Respondent's officials in pursuit.
When he arrived in the shop, McKinney called Farris
and Davenport to come over to witness what was occur-
ring. Respondent's officials directed McKinney to leave
the facility and he refused to do so without first having
the opportunity to speak with Refinery Manager J. L.
"Doc" Laird. A somewhat lengthy interchange of com-
ments and actions then took place as each side tried to
impress its desires upon the other. Finally, when it
became clear to McKinney that Laird was not going to
meet with him, he left the refinery.
McKinney, corroborated by Farris and Davenport,
testified that, during the course of these events, Johnson
had said that McKinney was being suspended for not at-
tending the meeting in the office, although it is undisput-
ed that McKenzie had interjected that the suspension
was also for what had happened on Friday. In the final
analysis, Johnson did not deny having said that the sus-
pension was for refusing to attend the March 19 meeting.
Seemingly, he was unable to recall exactly what had
been said regarding that subject, although he did recall
having told McKinney to leave the plant because he was
being insubordinate.
After McKinney had left the facility, Respondent as-
sembled the employees to, in Johnson's words, "explain
to them what had happened, what all the commotion and
all was about." At this meeting, certain comments are at-
tributed to Respondent's officials which, if credited,
would tend to undermine its defense that the decision to
discharge McKinney had not been made until later and,
': McKinne eslified hat, in response to his quesiion coLncernling he
purpose of the meeting, McKenzie had said thait i ras 1o be ahoul the
events of Friday and that McKinney as "going tio get it" McKenzie
denied both that McKiinney had inquired about the purpose foir he mect-
ing and hat he (McKenzie) had said hal the meeting vwa, to coser the
events of March 16 I is undisputed. hovcser, that before leaving the
shop area, MKinney had telephonied Johnlsoin ad hat. during their con-
,ersaion. Johnson had said hat the oeelinig pertaiined to hal ha d hap-
pened on Friday
further, had not been made on the basis of considerations
relating to McKinney's union support and activities.
With respect to the latter point, alone of the five wit-
nesses called by the General Counsel, Gillespie testified
that James had mentioned specifically "union" in connec-
tion with the reasons for Respondent's dissatisfaction
with McKinney: "He has been causing a lot of dissension
in the union amongst the men out there in our shop."
The others testified only that James had referred to
McKinney as being the source of dissension and prob-
lems, without testifying that James had stated specifically
that these matters arose in connection with union activi-
ties. 25
Of the five witnesses called by the General Counsel,
three of them testified that James had announced that a
decision had already been made to terminate McKin-
ney. 2 Thus, Kloth testified that James had said "that
Hugh McKinney was dismissed, he would no longer be
with us, that he had been causing dissension among the
employees, and he would be happier somewheres else,
and that we will all be a lot better off without him out
there." Similarly, Class C helper Valentin Garcia testi-
fied that James had said "that he was sorry to see a good
mechanic, good man terminated but, he said, from the
way he had been acting he had it coming to him." Dav-
enport initially testified in a similar fashion: "But when
we first went in there Ralph James had nothing but
praise for Hugh McKinney, that he could do first-class
work but he just wasn't happy here and that he probably
would make somebody else a good first-class man, and
that with him being gone our troubles in this shop would
be over." However, as Davenport continued testifying
about this meeting, it became manifest that notwithstand-
ing the remarks that he had attributed initially to James,
the employees had not been told that Respondent had
made a decision to terminate McKinney. For, Davenport
acknowledged that Respondent's officials, during the
meeting, had "just said [McKinney] had been indefinitely
suspended. . . . I know the question was asked, and they
just said he was indefinitely suspended." That Respond-
ent's officials had said only that McKinney had been sus-
pended was confirmed by Farris, who testified that,
while James had said that he felt that McKinney could
do a better job for someone else, he had also said that
the meeting had been convened "to say that Hugh
McKinney has been indefinitely suspended." In a like
vein Gillespie testified that at the start of the meeting.
the employees had been told, "As you know, probably
heard by now, that Hugh has been indefinitely suspend-
ed."
Following the meeting with the employees, the investi-
gation of McKinney's actions was conducted by Flem-
ing, Hoerner, and A. A. "Chub" Williams. Farris, Dav-
enport, and Kloth, as well as Johnson and McKenzie,
were interviewed regarding the events that had tran-
spired. The three employees agreed that they had been
'" As will he discll,d in greater dtic il Iifui . McKnIiiie had heen at
odds a ilh his Spcrilirs fr quite ,onie ilnle
*i' As licussd rl greater delail. itor7. 'tollo, i.ng the e*elts of hte1
mlorinig of March 19. Respondenti coniducted an ilsestigaltlOn afier
s hi'ch it reachtled the le,siil that iMcKiinie5 shild h etrmtinaltd
455
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
questioned concerning McKenzie's last instruction to
McKinney on March 16. In addition, Kloth testified, "I
told them that Hugh was hurting and he needed to go to
the doctor, and I felt I had the authority to send him to
the doctor, and I told him to go, and he went on to the
doctor." Fleming agreed that Kloth had reported to the
investigators "that he and Hugh had talked about wheth-
er it would be advisable for Hugh to go ahead and leave
and that Arthur had advised him to go ahead and go." 27
On March 23, Fleming sent a letter to McKinney, in-
viting the latter to attend a meeting on Wednesday,
March 28, "to review the facts and circumstances lead-
ing to your indefinite suspension and to give you the op-
portunity to furnish any other information or possibly
mitigating circumstances which we should consider in
deciding if a disciplinary penalty is justified in your
case." The letter assured McKinney that he would be
permitted to select "a fellow employee of your choosing
to attend this meeting if you so desire." It was also
pointed out in the letter that the meeting which Johnson
wanted McKinney to attend on March 19 had been in-
tended solely to advise the latter of his indefinite suspen-
sion, not "to conduct a disciplinary interview," but that
"to avoid any dispute and to be abundantly fair, be as-
sured that you will not be disciplined for your refusal to
go to Mr. Johnson's office last Monday." However, the
letter cautioned that any disciplinary action that was
taken would be based upon "your other conduct at work
on that particular Monday and previous Friday." Despite
receiving the letter, McKinney chose not to attend the
scheduled meeting because, during a conversation, Flem-
ing had said that McKinney would not be permitted to
bring a representative of the Union, in lieu of an employ-
ee, to the meeting.
By letter dated March 29, McKinney was notified of
his termination. That letter stated, in pertinent part:
We find that on March 16, 1979, when informed in
the afternoon by your Foreman, that you would
have to work overtime to complete re-assembly of a
pump needed over the weekend, you flatly refused
adding in the presence of other employees that "It's
none of your business what I do after four." The
Foreman then repeated that you would have to
work the overtime. At 4:00 p.m. you promptly left
the Refinery. Your leaving the incompleted job was
clearly contrary to Company "Working Policies"
booklet, which provides at page 28:
Any refusal to report for overtime work must
have sufficient reason and be by mutual agreement
of the employee and his supervisor. [Emphasis sup-
plied.]
It must be noted that any enterprise, whether it be a
privately owned plant or a public agency, requires
persons with authority and responsibility to keep
2 Allhough Respondetnt cotends ha tile Cl;lass A mechanics do not
possess authority to excuse cnmployees from work, a position consistent
with all parties' position that they are not supervisors within the meaning
of Sec 2(11) (of the Act, it appears from the testimony of Kloth and the
other employees hat the Class A mechanics had been doing so in prac-
tice.
the enterprise running. To keep an enterprise run-
ning, supervisors' orders must be obeyed. If the em-
ployee involved believes an order he receives is im-
proper, his recourse is to the established grievance
and arbitration procedure (pages 22-23 of the
"Working Policies" booklet) rather that [sic] the
"self-help" of walking off the job.
Your previous work record has not been good. In
December 1977, you were given a three day disci-
plinary furlough for neglecting your job duties and
warned that your further misconduct would result
in discharge.
After careful review, you are hereby discharged
from further employment with Sun Petroleum
Products Company, on the basis of your past record
and your insubordination on Friday, March 16,
1979.
With regard to that portion of the letter referring to
McKinney's previous work record, Fleming-who, along
with Laird, Hoerner, and Johnson, had made the deci-
sion to discharge McKinney-testified that he and Attor-
ney Hutchinson had reviewed McKinney's personnel file.
According to Fleming, "I picked out the letters that
were in there that indicated some previous contact be-
tween McKinney and his supervisors." During the hear-
ing, Fleming identified several specific memos, from
among the numerous ones contained in McKinney's per-
sonnel file, as being the ones that he had selected during
the predischarge review of McKinney's file. One of these
memos referred to a September 7, 1977, incident where
McKinney had been counseled by James and Johnson re-
garding the need to improve his sick leave record and
job attitude. In that memo, which had been authored by
James, appears the statement:
This was my second attempt to talk to this employ-
ee and to this date I do not feel that I have accom-
plished anything. I still consider him a poor em-
ployee who is blessed with a very low pain thresh-
old and unless he improves his sick leave and ability
to do normal mechanical work in the next six
months, I will be faced [sic] to ask that he either be
given another job or dismissed.
In December 1977, McKinney was given a 3-day disci-
plinary layoff.28 A memo identified by Fleming, bearing
the date December 19, 1977, describes a 10 a.m. meeting
with Laird at which McKinney had complained about
the suspension and had asserted that James "was 'on his
back,"' and that James was unable "to perform properly
as a supervisor and to recognize good work habits." A
second memo bearing that same date recites the contents
of Laird's discussion with James concerning the 10 a.m.
2" Jlohnson testified that. hile the event hat had precipitated a meet-
ing with McKinney regarding his wsork attitude had heen the latter's con-
versing with another employee during worktime after having pent a sig-
nificant portion of the workday doing no productive work, the suspen-
sion had been imposed because during that meeting McKinney had re-
fused to accept the criticisms of his work that were discussed and, thus,
he was suspended "to think about it and come back with an attitude that
We conld Aoark with a little bit better"
456
SUN PETROLEUM PRODUCTS COMPANY
meeting with McKinney. According to the memo, James
had reported that, despite numerous counseling sessions
with McKinney, James felt "that on no occasion was he
successful in getting across to McKinney the necessity
for improving his work performance to an acceptable
level. He believes that McKinney's attitude is such that
he does not accept criticism nor suggestion and that he
refuses to consider the need for improvement." This
memo also recites that Laird later met with Johnson,
"who stated that he had attempted to talk with McKin-
ney as [sic] a counseling session, but that McKinney re-
fused to accept or to listen to Johnson's advice and was,
in fact, arrogant to the point that he was infuriating.
Johnson made the decision to administer disciplinary
action in the form of three day [sic] without pay."
Also identified by Fleming were two memos dated
December 20, 1977, one authored by Laird and the other
by Hoerner. The latter's memo concerns a separate meet-
ing with McKinney on the prior day regarding the sus-
pension. It states that McKinney had "questioned the
knowledge and integrity of his supervisor, Mr. Ralph
James, in particular." It also recites that McKinney had
complained "that he has been singled out and observed
far more closely than anyone else. He was told at this
time that perhaps this was true because everyone under
probation are [sic] watched very closely." Laird's memo
of December 20, 1977, describes his meeting with
McKinney to discuss the results of Laird's investigation
of the complaints made by McKinney on December 19,
1977. According to the memo, Laird had told McKinney
that, on the basis of his own observations and of "per-
sonnel reports over a long period of time," he (Laird)
had concluded "that McKinney has no real enthusiasm
for continuing his employment here and shows little in-
clination to accept supervision and counseling in the
proper spirit so as to maintain a good working relation-
ship." The memo also recites that McKinney had "main-
tained throughout the meeting that he was being har-
assed and was constantly critical of Mr. James' abilities
as a supervisor of his department. He was critical of all
phases of Mr. James' supervision, including aspersions on
his knowledge of the work to be done."
One other memo selected by Fleming bears the date
February 21, 1978, and is from James to Johnson. In it,
the latter describes a 3-hour counseling session on Janu-
ary 30, 1978, with McKinney. James states that McKin-
ney "still doesn't think I am capable of judging his per-
formance or his ability or his attitude. ... . His statement
along the lines of others he had talked to in this compa-
ny's management was that we had ganged up on him and
were not listening to what he was saying but were only
sticking together." According to the memo, "[W]e dis-
cussed his quitting and finding a job where the people he
was accountable to were more to his liking." However,
recites the memo, McKinney had retorted that he would
not quit and that Respondent would have to fire him.
The memo states that at one prior counseling session
McKinney had asked why James did not fire him "and
get it over with." In the memo, James stated that
McKinney had rejected the suggestion that he transfer to
another department, but that James felt "that if he is dis-
satisified [sic] with his supervision he may possibly find
one in another department he respected or liked better."
Turning to the final matter raised in this proceeding,
the General Counsel alleges that Respondent violated
Section 8(a)(1) of the Act by making copies of subpoenae
ad testificandum served by the General Counsel upon
employees and by telling those employees that the copies
would be placed in their personnel files. That this did
occur is not disputed. Respondent's counsel represented
that prior to the hearing Respondent had made the deter-
mination, consistent with its general policy regarding
payment of employees for time lost due to court appear-
ances, to pay the employees for worktime lost by having
to attend these proceedings. That such a general policy
did exist was shown by the testimony of Kloth, Gillespie,
and Davenport, each of whom testified that, when they
had been called for jury duty, they had been obliged to
submit their jury notices to Respondent after which they
were paid for the worktime that they had lost by virtue
of having to respond to those notices. That Respondent
did pay the employees subpenaed in this matter was
shown by Kloth's testimony that he had been paid for
worktime which he had lost by virtue of having to
attend the first day of these proceedings. No employee
testified that Respondent's officials had said anything to
discourage him from attending these proceedings and, so
far as the record discloses, no threatening or coercive
statement was made to any of the employees regarding
their attendance.
IV. ANALYSIS
The threshold question in this matter is whether Re-
spondent committed unfair labor practices by suspending
and by then discharging McKinney, and by copying the
subpoenae ad estificandumn and telling employees that the
copies would be placed in their personnel files. For, if
Respondent's actions in these respects were not unlawful,
then there is no basis for having set aside the settlement
agreement in Case 23-CA-7227, and it should be rein-
stated. See Jake Schlagel. Jr., d/b/a Aurora and East
Denver Trash Disposal, 218 NLRB 1, 9 (1975).
The complaint in Cases 23-CA-7453 and 23-CA-
7453-2 alleges that McKinney was suspended for refus-
ing to attend a meeting with management because his re-
quest to be accompanied by a witness had been rejected.
According to the General Counsel, McKinney had a
right to be accompanied by a witness under the doctrine
enunciated in N.L.R.B. v. J. Weingarten, Inc., 420 U.S.
251 (1975). In that case, the Supreme Court sustained as
being proper "[t]he Board's construction that creates a
statutory right in an employee to refuse to submit with-
out union representation to an interview which he rea-
sonably fears may result in his discipline .... " (420
U.S. at 256.)29 However, the Weingarten right does not
:9 In view of my ultimate disposition of his matter, it is not necessary
to reach the issues of McKinnlle\ right to representation under 1'eingar-
ten. in light of the fact that he las not represented h a representati e
within the meaning of Section 9 of the Act and ill light of the further fact
that he had asked onlly for a itness loes ver, were it necessar) to do
so. I would conc lude tha I the 4 rigaurrn dc rine doe appl, to request,
for a witness and does e l ex \ ll Ci herc there is 11o ti aLlt or bhrgaining
representative See : I DUI Pi d .N luri and Coimpa,. Iorporald.
JD-(SF)-1 53-80 (May i19 19I80
457
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exist in every situation where an employee must meet
with members of management. "[A]s long as the employ-
er has reached a final, binding decision to impose certain
discipline on the employee prior to the interview, based
on facts and evidence obtained prior to the interview, no
Section 7 right to union representation exists under Wein-
garten when the employer meets with the employee
simply to inform him of, or impose, that previously de-
termined discipline." Baton Rouge Water Works Compa-
ny, 246 NLRB 964, 968 (1979). As set forth above, John-
son testified that at the March 19 meeting he had intend-
ed to do no more than to announce the decision to sus-
pend McKinney and to present him with the letter typed
by Pyles. Consequently, as described by Johnson, the
meeting would have been confined to informing McKin-
ney of the previously determined decision to suspend
him indefinitely pending investigation of the events of
March 16.
Focusing upon two facets of the evidence in this pro-
ceeding, the General Counsel argues that Johnson's testi-
mony with regard to the purpose of the March 19 meet-
ing should not be credited and that it cannot be found
that there had been a determination to suspend McKin-
ney prior to that meeting. First, on March 23, an interof-
fice correspondence memo was authored by Johnson, re-
citing the events of March 16 through 19. The first two
paragraphs of that memo read:
On Friday, March 16, 1979, Hugh McKinney vio-
lated at least three (3) articles of the work policies
(in my opinion). Enclosed is a letter outlining the
violations.
It was decided on Monday, March 19, 1979, to sus-
pend Hugh pending further investigation for these
flagrant violations of work policy. The above refer-
enced letter was written and typed over the week-
end (March 17 & 18). [Emphasis supplied.]
The General Counsel argues that the Italicized portion
of the second paragraph shows that the decision had not
been made until March 19, rather than on March 16, as
Respondent contends. Second, the General Counsel
points to the accounts of McKinney, Farris, and Daven-
port that Johnson had said, during the encounter on
March 19, that McKinney was being suspended for not
having attended the meeting in his office. This also
shows, according to the General Counsel, that there had
been no decision to suspend McKinney prior to the
meeting and, accordingly, that the Baton Rouge limita-
tion to the Weingarten doctrine was inapplicable to the
March 19 meeting. I do not agree.
With regard to the March 23 memo, careful inspection
shows that, due to imprecise phraseology, it is suscepti-
ble to more than a single interpretation. It could be read,
as the General Counsel argues, to mean that the decision
itself had been made on March 19. But, it also could be
read to mean that a decision had been made that on
Monday, March 19, McKinney would be suspended; that
is, that the phrase "on Monday, March 19" pertains to
"to suspend Hugh," rather than to "It was decided."
That this second interpretation is the correct one is
shown by the following sentence in which the weekend
preparation of the suspension letter is described. That
letter clearly announces that McKinney was being sus-
pended. Accordingly, a prior decision to that effect had
to have been made prior to, at least, the evening of
March 17, when Johnson contacted Pyles regarding
preparation of the letter. In these circumstances, the am-
biguous phraseology of the initial sentence of the second
paragraph of Johnson's memo does not serve to refute
Respondent's evidence that a final decision to suspend
McKinney had been made prior to March 19.
Nor do the descriptions of McKinney, Farris, and
Davenport as to what Johnson had said to McKinney
during their exchange in the shop after leaving the office
area. The witnesses' descriptions of that exchange show
that all involved had become emotional. Many of the
words spoken and actions taken were less than calm and
rational. Consequently, it is unlikely that even the ob-
servers would have perceived the distinction between
the departure from the refinery that would have resulted
naturally, but not immediately, from McKinney's suspen-
sion, and the immediate departure that Johnson demand-
ed of McKinney because of his, in Johnson's view, insub-
ordinate conduct that morning. In other words, McKin-
ney would be expected eventually to leave the refinery
because of his suspension, but Johnson wanted him to do
so immediately because of his insubordination. Johnson's
own testimony shows that the circumstances had left him
so overwrought that it is quite likely that he simply did
not articulate the distinction clearly. Conversely, when
testifying, the three employee witnesses, particularly
McKinney, displayed a certain degree of hostility toward
Respondent's position with the result that, even had
Johnson articulated why he wanted McKinney to leave
immediately, I would have reservations regarding wheth-
er they would have reported his words accurately. In
this regard, I credit the testimony of Respondent's wit-
nesses, particularly Pyles, concerning the sequence of
events that led to preparation of the suspension letter.
Consequently, whatever words were uttered on March
19 by the emotional Johnson do not serve to undermine
Respondent's defense concerning the existence of a prior
decision to suspend McKinney indefinitely.
In any event, even had McKinney been suspended for
refusing to attend the March 19 meeting in Johnson's
office, it would appear that the Weingarten doctrine
would not be applicable. For, by first refusing to even
leave the shop area to go to Johnson's office and by then
refusing to go any further than Pyles's office, McKinney
was, in effect, compelling Respondent to conduct its
meeting in areas where other employees were present
and working. "While an employee may make a request
for union representation while on the plant floor, and
need not repeat the request at the office if the official
there is aware of such request, he may not refuse to
report to the office as directed." Roadway Express, Inc.,
246 NLRB 1127, 1128 (1979). Therefore, I find that Re-
spondent's conduct and McKinney's suspension on
March 19 did not violate Section 8(a)(1) of the Act
under the Weingarten doctrine.
As an alternative theory regarding the suspension and
as the basis for alleging that McKinney's discharge had
458
SUN PETROLEUM PRODUCTS COMPANY
been unlawful, the General Counsel argues that Re-
spondent had seized upon the events of March 16 and 19
as a vehicle for ridding itself of McKinney because of his
activity on behalf of the Union. It is not, of course, a
novel proposition that an employer violates the Act if it
watchfully waits for an employee to commit a transgres-
sion and then uses that transgression as a means for ter-
minating that employee, in reality, because of his or her
support for and activities on behalf of a labor organiza-
tion. See., e.g., N.L.R.B. v. Lipman Brothers. Inc., et a.,
355 F.2d 15, 21 (Ist Cir. 1966). On the other hand, sup-
port for and activity on behalf of a union do not immu-
nize employees from the obligation to observe company
directions, nor do they preclude employers from imple-
menting disciplinary procedures when employees fail to
observe those directions. See, e.g., Butler-Johnson Corpo-
ration v. N.L.R.B., 608 F.2d 1303 (9th Cir. 1979).
Here, the credible evidence shows that McKinney had
a history of belligerence toward supervision, that he had
been directed specifically to work overtime on March
16, that he had disregarded that direction, that Respond-
ent had investigated the incident by interviewing all em-
ployees and supervisors who had witnessed it and by at-
tempting to secure McKinney's version of what had oc-
curred, and that based upon the nature of the offense,
viewed in light of McKinney's prior attitude toward su-
pervision, Respondent had decided to discharge McKin-
ney for leaving early on March 16. While the General
Counsel advances several arguments, many of which
have apparent facial merit, in opposition to this conclu-
sion, careful analysis of each of these arguments, in light
of the evidence presented, shows that they do not serve
to show that Respondent had been motivated by unlaw-
ful considerations in arriving at its decision to terminate
McKinney.
First, the General Counsel argues that McKinney had
been the principal union activist at the refinery and that
the campaign to organize employees had continued into
1979. Of course, both of these assertions are accurate.
Nevertheless, this activity would not appear to have
been of the concern to Respondent that the General
Counsel seeks to portray. So far as the record discloses,
no new petitions for election were filed nor demands for
recognition made following dismissal of the petitions
filed in April 1978 .3a Thus, so far as the record discloses,
there is no basis for inferring that Respondent would
likely have viewed the joint organizing campaign as
being of any consequence. Further, although McKinney
had been the most active of the Union's proponents
during the first part of 1978, there is no evidence that he
had continued to be as active following approval of the
settlement agreement in September 1978.
Second, the General Counsel points to the animus dis-
played by the statements that became the subject of the
settlement agreement approved in September 1978. Yet,
there is no evidence that Respondent had engaged in ad-
ditional unlawful conduct between September 29, 1978,
when the agreement had been approved, and March 16,
"' Since no election was conducted as a result of the two petitions filed
in April 1978, there would have been no bar under Sec 9(c)(3) of the
Act to OCAW and the Union seeking an election b filing another peti-
tion following dismissal of the petitions in June 1978.
when McKinney had departed from the refinery in defi-
ance of McKenzie's express order not to do so. So far as
the record discloses, Respondent honored the promises
which it made in that agreement. Moreover, aside from
the meeting involving McKinney and Davenport follow-
ing the representation hearing, all of the unlawful state-
ments covered by the settlement agreement had been at-
tributed to James. James, of course, had been involved in
the incidents leading to McKinney's termination only as
a witness and not as either a direct participant or as one
of the officials who had made the decisions to suspend
and to discharge McKinney. Indeed, there is some doubt
that Respondent shared James' view toward unioniza-
tion, in general, and toward the Union, in particular.
For, the Union does represent other employees em-
ployed by Respondent and there is not even a conten-
tion, much less evidence, that any animosity had existed
between Respondent and the Union in their dealings re-
garding those employees.
Third, it is argued that McKinney's difficulties with
Respondent commenced, for the most part, after he had
initiated campaigning for representation by, first,
OCAW, and, later, by the Union. This argument, howev-
er, is refuted by the evidence. Even before September
1977, McKinney had been counseled regarding his at-
tendance record and, during that month, concern had
been expressed concerning the validity of his sickness ex-
cuses.' In December of that same year, McKinney was
given a 3-day disciplinary layoff. At that time, Respond-
ent's officials complained about his disregard of instruc-
tions designed to improve his performance.
When he testified, McKinney claimed that he had
commenced organizing activity for OCAW in December
1977, thereby creating some doubt concerning whether
the disciplinary layoff and comments about his work,
made during that month, had been unrelated to his initi-
ation of protected activity. However, none of the other
employees called as witnesses by the General Counsel
corroborated McKinney's assertion that organizing activ-
ity had begun in 1977; to the contrary, each of them tes-
tified that it had commenced in 1978. Further, although
Diegel was called as a witness by the General Counsel,
in part, to corroborate McKinney's testimony pertaining
to the time at which the Union's campaign had begun,
no official of OCAW was called to provide similar cor-
roboration for McKinney's assertion that he had initiated
activity on behalf of that labor organization in December
1977. In light of these circumstances and in view of my
observation, noted above, that McKinney appeared to be
hostile toward Respondent and, indeed, appeared to be
attempting to tailor his testimony to enhance his position
in this proceeding, I do not credit McKinney's assertion
that organizing activity had been commenced by him in
SI Although McKinney testified that he had not seen all of the memos
in his personnel file, he did riot, in the final analysis, dispute the substance
of those memos. Lest there be an, question, the contents of those memos
are admissible as substantive evidence under Fed R. Evid 803(6). Fur-
ther i any event, in light of the corroboratisve testimony and other ei-
dence in this matter their contents ma he relied upon as suhstantive esi-
dence een if they are hearsay "The Board jealousl guards its discre-
lion to rely on hearsay testimony in the proper circumstances" RJR
Communtlealiorl Il. c.. 248 NLRB 920( 923 (1980)
459
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1977. Instead, I find that he was attempting to advance
the date of commencement of the organizing campaign
in an effort to diminish the adverse effect of his layoff
and the surrounding criticisms of his work.
Not only do the memos show Respondent's dissatisfac-
tion with McKinney's performance prior to commence-
ment of organizing activity, but they also disclose that an
acrimonious relationship between McKinney and James
had existed for some time prior to the former's attempt
to obtain representation. For example, in December
1977, McKinney had complained that James "was 'on his
back"' and had told Laird that, in effect, James was in-
competent. Farris related that conflict between McKin-
ney and James had continued over a 2- or 3-year period
and Davenport testified that it could have begun as early
as 1975. In short, the hostility between James and
McKinney did not arise when the latter had initiated his
campaign for representation. Moreover, this background
serves to nullify whatever possibility that two added fac-
tors, pointed to by the General Counsel, might have as
indicia of Respondent's unlawful motivation in suspend-
ing and then terminating McKinney. McKinney claimed
that, on several occasions, James had said that "he had
my file stacked. He had it fixed to where I couldn't get a
job in this area." However, there is no evidence that
James had begun to make these comments only after
McKinney had initiated his organizing activities. More-
over, the comments themselves do not, by their terms,
relate to McKinney's organizing activity. In short, it
simply cannot be said that they were based upon other
than the preexisting hostility that had developed between
James and McKinney.
The other factor to which the General Counsel points,
as an indication of Respondent's unlawful intent, is the
remarks made by James on March 19, after McKinney
had departed from the refinery. At the outset, I do not
credit Gillespie's testimony that James had specifically
attributed McKinney's suspension to "union," nor do I
credit Kloth's and Garcia's accounts to the extent that
they claimed that James had said that McKinney had
been terminated. Both Farris and Gillespie testified that
James had said "suspended." As Davenport's testimony
showed, in listening to, recalling, and Narrating James'
words, the employees were not always careful to delin-
eate between suspension and discharge. If Respondent
had already decided to terminate McKinney by the time
of the meeting, it seems unlikely that it would have then
gone to the trouble of conducting an investigation, as it
did do. Conversely, if it had conducted the investigation
as part of a ruse to conceal having already made a deci-
sion, it seems improbable that James would have com-
pletely undermined that plan by making a public admis-
sion to the contrary. Similarly, in the circumstances, it
seems unlikely that Respondent would have announced
publicly that union considerations had influenced its de-
cision if that had been the fact. I have no doubt that the
employees believed that McKinney's union activities had
influenced Respondent's decisions concerning him. Yet,
there was no corroboration for Gillespie's testimony that
James had said so specifically and it appeared in this re-
spect that Gillespie's belief had been the mother to his
recollection of what James had said.
This, then, leaves for consideration the comments that
James had actually made to the employees on March 19.
He said that McKinney was a good or "first-class"
worker. But, that is not inconsistent with Respondent's
defense. At no point did Respondent challenge McKin-
ney's proficiency. Rather, its complaints, as the memos
recite, pertained to his attitude and willingness to exer-
cise his work skills. James also said that McKinney had
caused dissension among the employees and trouble for
Respondent. In some circumstances the terms "dissen-
sion" and "trouble" have been found to have been syn-
onymous with union activity. However, the events of
that very morning, when McKinney had, in Respond-
ent's view, disrupted operations in the shop area and had
drawn Davenport and Farris into his argument with
Johnson, had caused problems involving other employees
working at the refinery. Further, as McKinney's and
James' history of acrimonious relations shows, James had
felt that McKinney's conduct had caused problems, unre-
lated to the Union, for supervision. Consequently, there
is an alternative, equally plausible, interpretation of
James' remarks that does not involve conduct protected
by the Act. James also said that McKinney would be
better off elsewhere and that Respondent would be
better off without him. Yet, this remark was no more
than a repetition of the opinion that James had expressed
during his meeting with McKinney in February 1978,
when he had suggested that McKinney secure "a job
where the people he was accountable to were more to
his liking." In sum, the General Counsel's quarrel with
the remarks made by James to the employees appears di-
rected more to the fact that he had failed to do as good
a job as could have been done in explaining McKinney's
suspension. Armed with the benefit of hindsight, James
might well agree that his presentation had not been one
that had been ideal. Be that as it may, his remarks were
not inconsistent with Respondent's defense and they do
not provide evidence that Respondent's decision to sus-
pend and then to terminate McKinney had been motivat-
ed by unlawful considerations.
Fourth, McKinney claimed that Respondent's policy
concerning overtime "until that Friday, had always been
voluntary. If you had something to do, you know, like if
I wanted to go somewhere like that, you could get some-
body to work for you or they would ask around and find
somebody to take your place." The crucial point here,
however, is the ability to get someone else to serve as a
replacement. For, as Davenport ultimately conceded, if a
replacement could not be located, then the employee
seeking to leave could not do so and had to work the
overtime. Yet, it is undisputed that when McKinney ini-
tially had been directed to work overtime on March 16,
he had merely replied that he could not do so, because
of a doctor's appointment, and had left it to McKenzie to
locate a replacement in the hour remaining before 4 p.m.
on that Friday.
Nevertheless, McKenzie expressed willingness to
permit McKinney to leave, so long as a comparably
rated replacement could be located. But, when McKen-
zie then sought McKinney's aid in facilitating scheduling,
by extending Respondent the undisputedly normal cour-
460
SUN PETROLEUM PRODUCTS COMPANY
tesy of providing earlier notification on those days when
he had to leave at 4 p.m., McKinney implicitly rejected
this request by abruptly saying, at least, that what he did
after normal hours was personal. It was at this point that
McKenzie, as Kloth described it, "turned red" and with-
drew permission for McKinney to leave at 4 p.m. Conse-
quently, this is not a situation where it can be said that
Respondent treated McKinney differently for any reason
other than the latter's own recalcitrant and intemperate
reaction to a reasonable request which, by the way, has
not been alleged as having been the product of unlawful
considerations. Even, therefore, though Respondent did
not normally require employees to work overtime, there
is no basis for concluding that the exception here had
been occasioned by any reason other than a reaction to
another instance of McKinney's longstanding disdainful
attitude toward supervision.
Fifth, the General Counsel points out that, after
McKenzie had left, Kloth had agreed to McKinney's de-
parture and while this had ultimately been brought to
Respondent's attention before it had made the decision to
terminate McKinney, it still had chosen to discharge
McKinney and had not disciplined Kloth. It is undisput-
ed that Kloth has not been, at any time material herein, a
supervisor within the meaning of Section 2(11) of the
Act. Whether he ordinarily possessed authority to excuse
employees for illness, he did not possess authority to
overrule McKenzie's decisions, nor did McKinney testify
that he had believed that Kloth had possessed authority
to overrule decisions made by McKenzie. Further,
Mckinney knew that Kloth had been present on March
16 when McKenzie had forbidden McKinney's departure
at 4 p.m. In these circumstances, McKinney can hardly
rely upon what he had been told by Kloth as an excuse
for his departure that day in defiance of McKenzie's ex-
press instructions not to do so. The decision had been his
own and had been made with full appreciation that he
was violating McKenzie's directions.
That Kloth did not possess authority to overrule deci-
sions made by McKenzie was as apparent to the officials
who had conducted the investigation as it must have
been to McKinney. Accordingly, the fact that they had
been aware of Kloth's agreement to McKinney's depar-
ture at 4 p.m. on March 16 hardly serves to absolve
McKinney of responsibility for having left at that time.
Regardless of what he had been told by fellow employee
Kloth, in leaving that day McKinney had directly dis-
obeyed an order given to him by one higher in authority
than Kloth. Consequently, it is not indicative of an un-
lawful motive that Respondent decided to discharge
McKinney even though it had been aware, at the time
that it had made that decision, of the exchange between
Kloth and McKinney on March 16.
No explanation was advanced by Respondent for not
disciplining Kloth, as well as McKinney for having, in
effect, counseled McKinney to disobey McKenzie's
order. However, contrary to the General Counsel's argu-
ment, this does not suffice to show that Respondent's
motivation had been impure. As noted above, regardless
of Kloth's attitude toward the matter, it had been
McKinney who had made the decision to leave and it
had been McKinney who had disobeyed McKenzie in
deciding to do so. Kloth had not been the employee to
perform insubordinately, regardless of his attitude
toward the matter. Of course, had Kloth opposed union-
ization of Respondent's employees, the failure to disci-
pline him might be argued as showing some differenti-
ation betwen union proponents and opponents. However,
that was not the fact. Not only had Kloth supported the
Union, but he had been active in its organizing cam-
paign. Thus, there is no basis for concluding that Re-
spondent's actions showed that it had treated union sup-
porters differently from union opponents, even assuming,
arguendo, that Kloth's March 16 conduct could be equat-
ed with that of McKinney.
Two final factors are pointed to by the General Coun-
sel as asserted indicia of Respondent's discriminatory
intent. It is argued that Respondent's object of lying in
wait for McKinney to commit an infraction, in order to
dispose of him because of his support for the Union, is
shown by the fact that Johnson, Hoerner, and Fleming
had waited together until 4 p.m. to ascertain whether
McKinney would disobey McKenzie's order not to leave
at that time. Yet, Respondent's officials credibly testified
that the situation posed by McKinney's announcement
that he did not intend to obey McKenzie had been a
novel one. They further testified credibly that they had
wanted to assess Respondent's position should McKinney
leave. In short, their purpose had been to avoid acting
arbitrarily. Certainly, that is not an indication of unlaw-
ful intention.
Next the General Counsel argues that the scope of the
post-suspension investigation shows Respondent's dis-
criminatory intent because it had been confined to ascer-
taining whether McKenzie's last instruction to McKin-
ney on March 16 had been to remain after 4 p.m. and
whether McKinney had left. However, those are the
very two factors that Respondent contends had precipi-
tated its decision to discharge McKinney. Surely, there-
fore, the fact that they had been the focal point of the
investigation hardly shows that Respondent acted incon-
sistently with its reason for terminating McKinney.
In the final analysis, a preponderance of the evidence
simply will not support the conclusion that Respondent
had acted upon an unlawful motive in deciding to sus-
pend and to later discharge McKinney. Respondent had
been dissatisfied with McKinney's attitude and with his
hostility toward supervision before any organizational
activity was initiated. As the memos in McKinney's per-
sonnel file show, particular concern existed regarding
McKinney's "very low pain threshold." On March 16,
when told of the need for overtime work, McKinney
suddenly said that he could not work overtime because
of an appointment with a doctor who Fleming, at least,
knew had followed a practice of not accepting appoint-
ments. Although McKinney claimed to have been in
severe pain all day on March 16, he had continued work-
ing that day until the normal quitting time, without re-
porting his pain to Respondent's officials, without seek-
ing time off to leave earlier in the day to secure allevi-
ation of that pain, and without even seeking assistance
from the nurse stationed at the refinery. In spite of these
factors, McKenzie said that he would allow McKinney
461
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to leave at 4 p.m., providing a replacement worker could
be located. But, when McKinney then disdainfully re-
jected the reasonable request that he aid in scheduling by
reporting his commitments, at least, earlier in the day
when he had commitments, McKenzie became angered
and withdrew the permission granted previously. In so
reacting, McKenzie might have acted imprudently, but
these facts do not show that his conduct had resulted
from considerations unlawful under the Act. When
McKinney then left the refinery at 4 p.m., Respondent
could have terminated him for insubordination, but did
not do so. Instead, it suspended him and conducted an
investigation in an effort to be certain of the accuracy of
its supervisors' report as to what had occurred. When it
determined that McKinney had been instructed to
remain, but had disregarded that instruction, Respondent
made the decision, in light of McKinney's longstanding
disdainful attitude toward supervision, to terminate him.
Again, these facts do not demonstrate an unlawful moti-
vation. Therefore, I find that a preponderance of the evi-
dence does not establish that McKinney had been either
suspended or discharged for considerations unlawful
under the Act.
Finally, it is alleged that Respondent violated Section
8(a)(1) of the Act by making duplicates of subpenas
served upon its employees by the General Counsel and
by telling those employees that the duplicates were to be
placed in their personnel files. It is undisputed that Re-
spondent did these things. However, it also is undisputed
that Respondent normally pays its employees for work-
time lost due to appearances at court proceedings. Kloth
testified that he had been paid for attending the first day
of the hearing in this matter. There is no contention that
the other subpenaed employees, who had reported to the
hearing on that day, had not also been paid, even though
they had not worked at the refinery. Accordingly, Re-
spondent acted consistently with its payment policy with
regard to the employees subpenaed by the General
Counsel.
Each employee who described prior instances of
having to appear for jury duty, during worktime, testi-
fied that he had submitted his jury notice to Respondent.
Thus, submission of, in effect, proof of appearance at a
legal proceeding was not novel for Respondent's em-
ployees. Finally, as was apparent when McKinney's per-
sonnel file was produced and reviewed, Respondent
maintains detailed records in its personnel files. There
has been no showing that inclusion in personnel files of
documents submitted as proof of appearance at a legal
proceeding is viewed by employees as being extraordi-
nary. To the contrary, Davenport testified that the jury
notices that he had submitted to Respondent were
"[p]robably put in my file, I guess."
To equate Respondent's procedure regarding the sub-
pena with employer requests for copies of affidavits
given by employees during a Board investigation, as does
the General Counsel, is not appropriate. There is no
valid purpose for an employer to request a copy of an
affidavit given by an employee during an investigation.
By contrast, here the employees were seeking to be paid
for time when they would not be working. Respondent
certainly is entitled to verify whether their absences
would be occasioned by a circumstance for which it was
willing to pay. The General Counsel argues that there
was no need for Respondent to copy the subpenas, nor
to place those duplicates in the employees' file. Yet, this
has not been shown to have been inconsistent with Re-
spondent's handling of prior situations where employees
had presented jury notices as proof that they had not
been able to work because they had been obliged to
appear in a legal proceeding. It is Respondent's practice
to maintain detailed records and it is not the function of
the trier of fact to substitute his or her subjective impres-
sion of business procedures for that of employers. See,
e.g., Grand Auto, Inc., d/b/a Super Tire Stores, 236
NLRB 877 (1978). Therefore, I find that Respondent did
not violate Section 8(a)(l) of the Act by mechanically re-
producing subpenas served upon its employees and by
saying that the duplicates would be placed in the em-
ployees' personnel files.
In view of the foregoing findings, I grant Respondent's
motion to dismiss the complaints and to reinstate the set-
tlement agreement in Case 23-CA-7227, inasmuch as Re-
spondent committed no subsequent unfair labor practice
warranting the setting aside of that settlement agreement.
CONCLUSIONS OF LAW
1. Sun Petroleum Products Company, a Division of
Sun Oil Company of Pennsylvania, is an employer within
the meaning of Section 2(2) of the Act, engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. International Brotherhood of Electrical Workers,
Local Union No. 278, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has not violated the Act in any manner
after September 29, 1978, and there was no basis for set-
ting aside the settlement agreement approved on that
date in Case 23-CA-7227.
Based upon the foregoing findings of fact, conclusions
of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER32
It is hereby ordered that the complaints be, and they
hereby are, dismissed in their entirety and that the settle-
ment agreement in Case 23-CA-7227 be reinstated.
12 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings. conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
462