Tonkawa Refining Co.

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 41 (N.L.R.B. 1970)

TONKAWA REFINING CO. 41
Tonkawa Refining Co. and International Union of
Operating Engineers , Local No . 351, AFL-CIO
Case 16-CA-3544
June 30, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On January 19, 1970, Trial Examiner George L.
Powell issued his Decision in this proceeding, find-
ing that Rspondent had engaged in and was engag-
ing in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. He also found
that Respondent had not engaged in certain other
unfair labor practices and recommended that the
allegations of the complaint pertaining thereto be
dismissed. Thereafter, Respondent and the Charg-
ing Party filed exceptions and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings,2 conclusions, and recommen-
dations of the Trial Examiner, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Tonkawa Refining Co.,
Woodward, Oklahoma, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE L. POWELL, Trial Examiner- This case,
under Section 10(b) of the National Labor Rlations
Act, as amended, herein called the Act,' was tried
before me May 27, 28, and 29, 1969, in Wood-
ward, Oklahoma The complaint, issued April 18,
1969, based upon a charge filed on February 14,
1969, alleging violations of Section 8(a)(1), (3),
and (5) of the Act and a first amended charge filed
on March 20, 1969, alleging a violation of Section
8(a)(1) and (3) of the Act, presented the question
of whether Section 8(a)(1) of the Act was violated
by Respondent in refusing to discuss a grievance, in
refusing to permit employees to return to work not-
ing instead that they were in a "temporary layoff"
status, and in discharging the employees the follow-
ing day because of their concerted activities.
The case of the General Counsel, as set out in the
complaint, was based upon the proposition that
when Respondent on January 27, 1969, at or about
8 p m , refused to discuss a grievance concerning
employees' hours, wages, and conditions of employ-
ment at the refinery with 11-named employees2
they concertedly ceased work from about 8:30 p.m.
on January 27, 1969, to about 8:30 a.m. on January
28, 1969 At that time they made an unconditional
offer to return to their former jobs by their
representatives Orin Woodrum, Andy Woods, and
Roger H. Burton but Respondent refused the offer
and put them in "temporary layoff" status. The fol-
lowing morning, January 29, 1969, at or about 4
a.m , Respondent discharged and refused to rein-
state the named 11 employees. The General Coun-
Respondent 's request for oral argument is hereby denied as the excep-
tions, briefs, and the entire record adequately present the issues and posi-
tions of the parties
2 The trial Examiner recommended that the Board bar Respondent's
counsel, John Cosmic, from practice before the Board and that it also noti-
fy the proper authorities of the State bar in order that they may consider
disbarment proceedings because counsel advised Respondent' s plant
manager Pollard not to testify after Pollard was called as a witness under
Rule 43 ( b) after being served a subpena Because of Pollard's refusal to
testify under 43(b) even though the Trial Examiner failed to rule on
Respondent 's motion to revoke the subpena, the Trial Examiner would not
permit Pollard to testify as Respondent 's witness later in the proceeding
After a careful review of the record, we conclude that the Trial Ex-
aminer should have proceeded to rule on the petition to revoke If the
Trail Examiner had denied the petition to revoke and Pollard still re-
fused to testify, the General Counsel had the option to seek enforcement
of the subpena in district court or to continue his case without such
testimony In such circumstances, we see no reason to censure or other-
wise discipline Respondent 's counsel because he chose to challenge a
subpena and thereby assert a colorable legal right on behalf of his client
Accordingly, we do not adopt the Trial Examiner's comments or other
recommendations on this matter Respondent, however, made no offer
of proof respecting Pollard's testimony, nor did it even attempt to do so
Absent such showing, we are satisfied that Respondent has not shown
that it was prejudiced by the Trial Examiner's exclusion of Pollard's
testimony
Moreover , Member Jenkins agrees with the Trial Examiner 's ruling
in precluding Pollard from testifying in behalf of Respondent after his
earlier refusal to testify under Rule 43(b)
1 Member Brown concurs in the result
i 29 U S C Sec 151 et seq
2 The employees named in the complaint are Jay Bryant, Roger H Bur-
ton, George B Devenney, Lloyd Dudley, A J Harney, Jerry Hmnant, Paul
Kibbe, Vern Miller, Buck Sibley, Orin Woodrum, and Andy Woods
184 NLRB No. 6
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sel alleged that by these acts Respondent violated
Section 8(a)(1) of the Act. Respondent denied the
allegations and the General Counsel was put to his
proof.
All parties appeared at the trial, were
represented, and participated in it, and were given
full opportunity to adduce evidence, to examine
and cross-examine witnesses, submit briefs, and
present oral argument. Briefs were filed on July 3 1,
1969, by the General Counsel and the Respondent.
On the entire record of evidence, my observation
of the witnesses as they testified, and on due con-
sideration of the briefs, I find, for the reasons
hereinafter set forth, that the General Counsel has
established by a preponderance of the evidence
that Respondent violated Section 8(a)(I) of the
Act as noted below, and I will recommend a
remedy to effectuate the purposes of the Act.
In addition to the finding of violations set out
above, I find for the reasons hereinafter set forth
that lawyer John Cosmic, counsel for Respondent,
engaged in contumacious conduct during the trial
of the case and I will recommend a remedy to
effectuate the purposes of the Act in this respect
also.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE EMPLOYER AND THE LABOR ORGANIZATION
I find that the allegations of paragraphs 2 and 3
of the complaint respecting the nature and volume
of business carried on by Respondent , Tonkawa
Refining Co., a Texas coporation having its princi-
ple office and place of business in Arnett,
Oklahoma, where it is engaged in refining crude oil
and selling it to commercial outlets and to United
States Air Force Bases, is true, and I conclude
therefrom that Respondent is an employer engaged
in commerce within the meaning of Section 2(6) of
the Act . These allegations were admitted by
Respondent.
The parties also admitted and I find that the In-
ternational Union of Operating Engineers, Local
No. 351, AFL-CIO, has been at all times material
to the complaint a labor organization within the
meaning of Section 2(5) of the Act.
II UNFAIR LABOR PRACTICES
Employee driver Horace Gillian died shortly after
he suffered severe burns on Friday, January 24,
1969,3 at an explosion and fire at the loading dock
at Respondent's refinery. The next day, Saturday,
January 25, the remaining 1 I drivers met at the
Circle C Lodge "to determine what action the
' All dates are 1969 unless otherwise noted
drivers wanted taken, so that there would not be
another occurrence of this kind."a
They discussed among themselves and decided to
ask for a pay raise, for better hospitalization and in-
surance, for a change to a biweekly pay period, for
loaders to load the trucks, and for drivers to drive
them thereby eliminating a fire hazard in loading,
for other safety measures including a smoking
room, smother blankets, and asbestos uniforms in
case of fire rescue operations, and for a time limit
within which the Respondent would act on the
grievances and proposals They elected two drivers
to notify Joe D. Pollard, plant manager, on Sunday,
January 26, that none wanted to work on Monday,
January 27, out of respect for Gillian. Two other
drivers were elected to ask company officials from
Houston, Texas (who were to attend Gillian's fu-
neral), for a meeting with the drivers on Tuesday
morning, January 28, and they elected three other
drivers to present their proposals and grievances to
these company officials
The drivers were excused from work on January
27 and at the funeral a meeting was set up for
Tuesday, January 28, to be attended by drivers Bur-
ton, Woodrum, and Woods and Respondent's offi-
cials from Houston, Mr. Naples, treasurer, and Mr.
Ramey, vice president.
But this meeting planned for January 28 with the
Houston officials never took place. Instead, Pollard
called a meeting of the I I drivers for Monday even-
ing, January 27, at 8 p.m. Pollard, at this meeting,
asked the drivers to bring their problems out in the
open Burton questioned him if this meeting was to
take the place of the one scheduled for the next day
with Naples or Ramey and was told in reply that
there would be no meeting the next day and that
the only way the drivers could get to the Houston
officials was through him. Woodrum then said,
"That does [answer the question], and we have
heard all we need to hear" and the drivers walked
out. None of them reported for work on January 28
at the 4 a.m. starting time.
Thus, the I I drivers struck. Dudley, a witness for
Respondent, testified that the drivers agreed not to
report for work at the regular starting time of 4
a.m the following morning, and they did not report
to work at that time I conclude and find that the
11 drivers struck in a concerted effort to resolve
their grievances and obtain economic benefits The
General Counsel alleged in his complaint that Pol-
lard's refusal to discuss the grievances to the
satisfaction of the employees violated Section
8(a)( I ). I disagree and find no violation of Section
8(a)(1) by Pollard in this event. Pollard did no
more than tell the employees they had to take their
i Unless otherwise noted, the story of what happened is based on the
credited testimony of Andrew Woods Although he testified that the meet-
ing was on January 26, Respondent admitted in its brief it was on the 25th
The names of the drivers who met are George Dcvenney, Vern Miller,
Buck Sibley, A J Harney, Roger Burton , J Bryant, Lloyd Dudley, Paul
Kibbe, Orin Woodrum, Jerry Hinnant , and Andrew Woods These are the
I I drivers referred to hereinafter
TONKAWA REFINING CO
grievances through him Management has the right
to run its business as to the channels to take in
processing grievances. This case does not involve
allegations of refusal to bargain in good faith. Ac-
cordingly, I will recommend the allegations of
violation of Section 8(a)(1) as set forth in para-
graph 7 of the complaint be dismissed.
January 28
About 8:30 a.m. on Tuesday, January 28, all 11
drivers came to the plant where they met with Pol-
lard, Milton Wills, and Mrs. Bonneta Randolph of
the Company. Burton asked Pollard if the drivers
were going to have a meeting with the Houston of-
ficers to which Pollard replied that "he didn't know
of any meeting going to be held that morning. He
said that as far as he knew we hadn't asked for a
meeting " Pollard told them they would have to
meet with him Burton asked for a meeting.
The meeting then took place in Pollard's office
with Pollard, Wills, Randolph, Burton, Woodrum,
and Woods present. They discussed inter alia,
safety features, pay raise, hospitalization and in-
surance, biweekly pay periods, smoking room away
from dock area, and loaders loading trucks without
help from drivers who nonetheless were being paid.
The drivers wanted an answer to these proposals by
Friday, January 31. Pollard told them this was in-
sufficient time to get an answer back from Houston
to the questions raised . Burton then told Pollard the
drivers would wait a week until February 4. The
drivers were ready to go back to work on February
4 and offered to do. Burton told Pollard, "Joe, we
are ready to haul fuel." Pollard replied, "Well, I am
not." Burton asked if this were a temporary layoff
and Pollard answered, "yes."5
The drivers met again with Pollard on the even-
ing of January 28 at the call of Respondent. With
Pollard was Wills and Respondent's counsel John
Cosmic who did the talking for Respondent.
Cosmic told the drivers if they failed to take out
their loads in the morning of January 29 they would
be considered as having quit their jobs Burton, the
spokesman for the drivers, replied to Cosmic that
"no one is quitting ," that they would work up until
February 4 by which time they should have some
assurance on their grievances and proposals. When
pressed by Cosmic with the question of what would
the drivers do after February 4, Burton told him
5 Burton corroborated this testimony So did Dudley, the Respondent's
witness
6 Harney credibly corroborated Woods but his phrasing of why the
drivers would work up to February 4 was that this would be " giving the
company adequate time to negotiate on our grievances " He testified "We
were not asking for a definite settlement , but we did want some sort of con-
sideration from the company in the way of meeting with us and making an
attempt to at least show their interest , that they were interested and try to
work with us on it "
He also testified that he asked Cosmic why the drivers should give him a
definite answer on what they would do after February 4 if he refused to
give them a definite answer on their " negotiations " Cosmic did not
43
they didn't then know but that some action would
be taken.
Cosmic told them they had to have drivers they
could depend on, but, in reply to Burton's question
of when could Respondent act on the grievances,
said "it may be a week, or a month, or a year, or
maybe never," Cosmic told them he couldn't give
them any assurances as when Respondent would
act on the grievances.
The meeting came to an end and as the drivers
left the room, Woods told Cosmic the drivers were
not quitting.'
January 29
The following morning, January 29, the drivers
again did not report to work at the 4 a.m. starting
time. About 8 am Burton, Woodrum, and Woods
went to the refinery and asked Pollard if the
Respondent had decided to meet with them on
their grievances. Cosmic and Wills were present.
Pollard replied, "No" and the three drivers left.
None of the 1 1 drivers worked that day
January 30
The following morning, January 30, Woods went
to the refinery and asked Pollard if the Respondent
was ready to talk over the proposals and
grievances. Pollard replied, "No" and Woods left.
January 31
The same thing happened on January 31, Woods
asked Pollard the same question, got the same
answer, and again left the premises
February 1
Again on February I Woods asked Pollard if
Respondent would meet with the drivers on the
proposals and grievances. Pollard again refused
February 3
The next meeting was Monday, February 3, when
Woods again asked Pollard if Respondent would
meet on the grievances and proposals. Pollard at
this time told him that Respondent would not meet
as they had taken the position the drivers had quit,
answer But Cosmic again stated that if the drivers did not work the follow-
ing morning that he would assume that they had quit At that time Bryant,
Woodrum, Dudley , and Harney told Cosmic that if the Company " did not
make any kind of negotiations, was not making any effort to negotiate, or
want to negotiate , or try to work with us on it, that we would quit "
"Cosmic said he was not accepting any resignations , that if we did not
drive the following morning that he would assume we had quit " "The
company will take the position that you have quit " At that time "the
meeting was pretty well out of control and ending it was loud
Cosmic was badgering us Tempers were flaring He had everyone pretty
well hot " As they were leaving the meeting, Burton informed Cosmic,
"Now remember , none of us are quitting "
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and they were going to hire new drivers. Again
Woods told him the drivers had not quit.
February 4
The next meeting was the following day, Februa-
ry 4, at or about 5:30 p.m., when Burton and
Woods talked to Pollard. Pollard told them Respon-
dent was not intending to talk to them as the
Respondent assumed the drivers had quit and
Respondent was going to replace them by new
hires. 7
February 7
The next meeting was February 7 about 10 a.m.
at which time all 11 drivers except Dudley, Hin-
nant, and Kibbe (who had been rehired as new em-
ployees) were present. At this time Woods gave
Pollard a written request to go back to work uncon-
ditionally. Pollard told them, "I am not authorized
to hire you back as a crew. But if I had the authori-
ty my answer would be "No." Harney asked Pollard
if going on strike had anything to do with this ac-
tion and Pollard replied, "yes, it had to."
Pollard told them he was authorized to hire back
. . three, five, nine, or any number of drivers"
but that they would be hired as new employees los-
ing their seniority and vacation rights as they had
quit their jobs.
Devenney specifically asked Pollard if he was
authorized to hire him back and Pollard replied,
"No."
Bryant asked Pollard if he was authorized to hire
him back and Pollard replied, "No."
Miller and Harney each asked the same question
for themselves and each was told "No." The drivers
then left.
February 8
The following morning, February 8, the same
eight drivers returned to the plant Pollard was
asked by them what action Respondent was taking
on their unconditional offer to return to work Pol-
lard told them they were considered as having quit
their jobs and were to be replaced but that they
could fill out new applications and they would be
considered for rehire. The eight drivers took em-
ployment applications and left the premises
February 10
On February 10, Woods took the job applications
for Burton and Woodrum to the plant about 10
a.m. and gave them to Mrs Randolph in the office.
7 Harney corroborated Woods' testimony but occasionally furnished ad-
ditional details He credibly testified that he, Devenney, Kibbe, and one
other driver saw Pollard at 10 or 10 30 a m on February 4 at the refinery
They asked Pollard if he had received any information from Houston con-
cerning their grievances Pollard said he had not received any and that as
far as the Company was concerned the drivers had quit Devenney told Pol-
He gave his own application to Pollard who, after
looking it over, questioned if he was serious about
the desired wage he had put on the application
Woods replied that he was serious about the
amount and he was not hired.
New hires and bookkeeping on strikers
Mrs. Bonneta Randolph, Respondent's book-
keeper and secretary, prepared a list of truckdrivers
hired after the strike in January as follows:
Date Hired
Adams, James 4-16-69
Belew , Larry 4-16-69
Bohannon , Jerry 2-8-69
Branson , Sam 2-7-69
Burba, Melion 2-15-69
Foth, Abraham 4-7-69
Holt, Terry 2-6-69
Rodgers, Bill 4-16-69
Skarke, Bob 2-6-69
Smith , Dan 2-5-69
Further, she added to the list by credibly testify-
ing that McFall, a truckdriver, was hired in mid-
April 1969, and that three of the striking drivers,
namely Hinnant , Kibbe, and Dudley, were hired as
new employees on February 6 or 7, 1969. (The
parties stipulated that Kibbe was hired February 6
and Dudley on February 7 )
She said that beginning the week after the strike,
until late in February, common carriers were hired
by Respondent to haul the jet fuel previously
hauled by the drivers, but two loads were first
hauled by the common carriers on January 31.
Respondent's business increased in February but as
drivers were hired the common carriers were
eliminated.
Mrs. Randolph had been at the meeting with Pol-
lard on Tuesday morning, January 28, when
Woods, Burton , and Woodrum were talking to Pol-
lard about the grievances and proposals. She cor-
roborated Woods in that the drivers said "We are
ready to work, go back to work" and that they
would expect an answer from the Respondent in a
week as to the proposals and grievances Nothing
was said as to how long they would work Her
testimony was that when the drivers said they were
ready to work, Pollard replied,
"Well, I would rather you didn't today, not
till I talk to Houston [the head office]," or
something to that effect
They said, "That's fine."
When the drivers did not show up for work the
following morning of Wednesday, January 29, Pol-
lard that the drivers had not quit Pollard told them the Company had as-
sumed they had quit, because they "definitely are not fired " Devenney
told Pollard the drivers were "ready to go to work," but Pollard replied that
the Company had assumed they had quit and "you are not going back to
work "
TONKAWA REFINING CO. 45
lard instructed Randolph to "call in their time"
[figure what was owed them] as "he assumed these
drivers had quit because they didn 't come back to
work ." She then figured what was owed the drivers
and they were paid "the following Monday, I be-
lieve," which was not the normal payday. The
drivers had never requested that they be paid off
Pollard
Pollard was called as a witness for the General
Counsel He was present in the courtroom being
seated at counsel 's table with his lawyer, John
Cosmic. Cosmic ordered him not to take the stand.
The Trial Examiner ordered him to take the stand
notifying him and his counsel that if he refused to
take the stand and testify that any of his testimony
could be stricken from the record He refused to
testify and Cosmic was advised by the Trial Ex-
aminer it would serve no useful purpose to ever call
Pollard to the stand . Pollard never testified (The
recommendations of the Trial Examiner relating to
actions to be taken against Cosmic for his contuma-
cious conduct appear hereinafter under a separate
heading.)
Milton Wills, Pollard 's assistant, testified for
Respondent . To the extent that the testimony of
Wills is in conflict with testimony of any of the
General Counsel 's witnesses it is not credited on his
demeanor while testifying and on his rather obvious
effort to testify to what he believed would be
favorable to his employer . His very actions follow-
ing a telephone conversation with his superior, Pol-
lard, telling him that he was being summoned to ap-
pear as a witness attest to his excessively submissive
conduct toward Pollard. I received the decided im-
pression that his oath to testify to the truth, the
whole truth, and nothing but the truth was entered
into with the mental reservation that Pollard came
first
Recapitulation and Analysis
Based upon the credited testimony of Woods,
Burton , and Randolph , the 11 drivers concertedly
ceased work on January 28 but agreed to come
back to work beginning January 29 pending receipt
from the Houston office of comments as to the
position of Respondent on the grievances and
proposals made to Pollard on the morning of Janua-
ry 28. At first the drivers wanted an immediate
answer to their grievances and proposals but when
it was explained to them that it would take time to
communicate with the head office in Houston, they
agreed to work until February 4 to see what
Respondent 's officials had to say. Whether they
would resume the strike thereafter would depend
upon the reply of the officials
At the morning meeting on January 28 Pollard
did not agree to this arrangement of the drivers'
returning to work on January 29, saying he was not
ready to let them work and telling them he was
putting them on "temporary layoff." This violates
Section 8(a)( I) of the Act as it is illegal retaliation
based upon the drivers ' having engaged in pro-
tected concerted activity.
Cosmic entered the story later on in the same day
of January 28 and appeared to deliberately confuse
the drivers by telling them they would be con-
sidered as having quit if they did not report for
work on January 29 at 4 a m. even though Pollard
had earlier told them he didn't want them to work.
Even if the drivers were still on strike ( which I find
they were not, having offered to return to work) a
statement by an agent of Respondent , such as
Cosmic, that if strikers did not return to work they
would be considered as having quit , violates Sec-
tion 8(a)( I) of the Act because it interferes with,
restrains , and coerces employees in their right to
engage in concerted activities for their mutual aid
and protection . The law for this conclusion is so
well known as to require no statement of authority.
Cosmic's statement is a deliberate mistatement of
the law calculated to influence and interfere with
the rights of the employee drivers.
Also at the meeting in the evening of January 28,
Cosmic refused to discuss the problems raised by
the drivers but instead , badgered them by repeti-
tious questioning as to what they were going to do
on February 4 ("Tuesday " was the word used to
mean February 4) knowing at the time that what
the drivers would do depended on the Company's
answer to their proposals There is no factual basis
in this case to support a contention , if any, that the
drivers were engaging in "intermittent" or
"recurrent " or "partial " strike action . There is a
possibility that , under the circumstances of this
case, Cosmic's conduct at this meeting would vio-
late Section 8(a)(I) of the Act. The employees had
certain grievances and proposals they wished to
bring to their employer for resolution in the spirit
of engaging in concerted action for their mutual aid
and protection-a protected activity . They had
earlier met with their plant manager , Pollard, in the
morning of January 28 over these matters and were
summoned to another meeting for that evening.
Obviously they attended the meeting in the belief
that it was a continuation of the morning meeting.
But it turned out otherwise Pollard turned the
meeting over to Cosmic, who refused to meet the
issues . Instead , he badgered the employees as to
their future intentions . This conduct could
reasonably interfere with, coerce , and restrain em-
ployees in their enjoyment of their rights under
Section 7 of the Act in violation of Section 8(a)(1)
of the Act, but as this activity was not developed in
the complaint nor in the General Counsel 's theory
of the case , the Respondent had no notice and
hence no opportunity to adduce any evidence it
may have had concerning the attitude of Cosmic at
the meeting . Accordingly , I can not say this issue
had been litigated at the trial and will not find a
violation of Section 8(a)( I) of the Act as to it.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, Section 8(a)( I) of the Act was violated
by Pollard on January 29 when, after the drivers
did not show up at 4 a.m , he told Randolph to
mark the drivers as having quit and to pay them off,
when he knew they had not quit Indeed, he had
told them they could not come to work. I find Pol-
lard discharged these employees and refused them
reinstatement because they were engaging in con-
certed protected activity within the meaning of Sec-
tion 8(a)(1) of the Act. The remedy usually
prescribed by the Board for this activity is to order
Respondent to cease and desist from such activity
and to reinstate the employees to their jobs (or
their substantial equivalent), discharging, if neces-
sary to do so, any replacements, and to make them
whole for loss of pay I will provide this remedy
hereinafter in section IV entitled "The Remedy."
Further, the date of January 29 is fixed as the
date of the discharge, even though Pollard put them
in a "temporary layoff" status on January 28
because January 29 was the first day these drivers
were kept from work.
Contumacious Conduct of John Cosmic, Esq
This was a trial of an alleged unfair labor practice
being conducted before a Federal Trial Examiner in
accordance with and under the Federal Administra-
tive Procedure Act (5 U.S.C. Sec, 551, et seq. ) and
the National Labor Relations Act, supra. During
the trial, Counsel John Cosmic deliberately dis-
obeyed a ruling and thwarted an order of the Trial
Examiner in open defiance of his authority. The
Trial Examiner had ordered Pollard to take the
stand and testify as a witness. Cosmic ordered him
not to do so and Pollard refused to take the stand.
(The question of subpena enforcement is immateri-
al in these circumstances.) By this action Cosmic
willfully engaged in contumacious conduct. That
others engaged in similar conduct is no defense for
him."
Contumacious conduct by counsel at Labor
Board unfair labor practice trials or in any type of
courtroom proceedings, is more serious than a
felony and cannot be tolerated. A lawyer is bound
by his calling to honor and to protect the law and
those who are engaged in its administration. It is
never necessary and hence there is no justification
for a lawyer to deliberately flaunt legal authority, as
was done in this case. There are adequate avenues
provided for taking appeals from error and ar-
bitrariness. Society itself can be likened to a vehicle
on the move always being rocked and tossed, but
not stopped, by the disobedience, selfishness, and
crimes of its members. But when a lawyer disobeys
lawful authority and takes the law into his own
hands, he pulls the linch pin causing society to drop
to the gutter and grind to a halt.
Lawyers and judges today are ever mindful of
their ethical duty to alarm the careless and censure
the willful member. Accordingly, I find that John
Cosmic, Esq., performed a disservice to his client,
breached his responsibility as an officer of the
court, took the law into his own hands, and
dishonored his profession by engaging in contuma-
cious conduct as set out above. The remedy for this
conduct will be provided in section IV entitled
"The Remedy."9
III THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
II, above, occurring in connection with Respon-
dent's operations described in section I, above,
have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
IV. THE REMEDY
Having found that Respondent has engaged in
unfair labor practices I shall recommend that it
cease and desist therefrom and take certain affir-
mative action to effectuate the policies of the Act.
Having found that Respondent discharged Jay
Bryant, Roger H. Burton, George B Devenney,
Lloyd Dudley, A. J. Harney, Jerry Hinnant, Paul
" At the conclusion of the case , the General Counsel requested the Trial
Examiner to admonish Cosmic and recommend a formal reprimand to the
Board Cosmic knew of this procedure from somewhat similar conduct as
he mentioned the lawyer's name involved in an earlier case This part of the
record is set out in full as follows
MR ECKHARDT Counsel for the General Counsel would like to state
at this time that Mr Cosmic has demonstrated at this hearing a con-
tempt for the trial processes of the Government , and the Trial Ex-
aminer in particular , that this Counsel has not seen in eleven years of
Board employment
He has thwarted justice by advising his client not to testify, in defi-
ance of the Trial Examiner's instructions, and by refusing to produce
documents which he knew were material to the issues in this case
He has demonstrated, contrary to his responsibilities as an officer of
the court , that he intends to serve his client only , and not the ends of
justice
In view of these facts , Counsel for the General Counsel hereby
requests that the Trial Examiner officially admonish Mr Cosmic for
his conduct in this case and recommend to the Board that it issue a for-
mal reprimand and warning to Mr Cosmic and/or bar Mr Cosmic
from practice before the National Labor Relations Board for at least
six months
MR COSMIC What did you do, delete Mr Price's name and put
mine in there)
The Federal Hearing Examiner has no contempt powers but I suggest
that he has the following options he may use during the trial when counsel
for Respondent instructs a witness not to testify ( for reasons other than
constitutional immunities ) He may (I) strike the previous testimony of the
witness who refuses to testify or refuse to permit him to testify, (2) refuse
to permit Respondent 's counsel to cross examine any witness, ( 3) refuse to
permit Respondent to introduce any evidence on its own behalf , ( 4) grant a
motion for directed verdict upon completion of a prima facie case by
General Counsel , and (5 ) remove Respondent 's counsel from the case
setting down a reasonable time for Respondent to secure other counsel be-
fore resuming the trial The Federal Hearing Examiner exercises his discre-
tion of which of these options , or of how many of the options , he desires to
use as the circumstances merit
TONKAWA REFINING CO. 47
Kibbe, Vern Miller, Buck Sibley, Orin Woodrum,
and Andy Woods on January 29, 1969, in violation
of Section 8(a)(1) of the Act and that it failed to
reinstate them upon their unconditional application
therefor, I will recommend that Respondent offer
each of them immediate and full reinstatement to
their former or substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and make each of them whole for
any loss of earnings or other benefits he may have
suffered as a result of the discrimination against
him, said loss to be computed in accordance with
the formula set forth in F. W Woolworth Company,
90 NLRB 289, and with interest thereon as
prescribed in Isis Plumbing & Heating Co., 138
NLRB 716.
In view of the nature of the unfair labor practices
found herein to have been committed by Respon-
dent, which indicate its determination to interfere
aggressively with its employees' rights of self-or-
ganization , I shall recommend that the Respondent
cease and desist , in any manner, from infringing
upon rights guaranteed its employees by Section 7
of the Act 10
Having found that John Cosmic, Esq., engaged in
willful and deliberate contumaceous conduct, I will
recommend (1) that he be barred from practice be-
fore the Board; and (2) that the Board notify the
proper State Bar authorities of this action in order
that they may consider disbarment proceedings
Upon the foregoing findings of fact and the entire
record in this case, I reach the following
CONCLUSIONS OF LAW
1 Tonkawa Refining Co. is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act
2. International Union of Operating Engineers,
Local 351, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By putting the employees on temporary layoff
on January 28, 1969, because they had engaged in
concerted action for their mutual aid and protec-
tion , by threatening employees with being put in
the status of having quit if they engaged in a work
stoppage in their concerted action for their mutual
aid and protection; and by discharging Jay Bryant,
Roger H Burton, George B. Devenney, Lloyd
Dudley, A J. Harney, Jerry Hinnant , Paul Kibbe,
Vern Miller, Buck Sibley, Orin Woodrum, and
Andy Woods on January 29, 1969, because they
engaged in concerted action for their mutual aid
and protection, and by refusing to put them back to
work upon their application Respondent has inter-
fered with, restrained, and coerced employees in
the exercise of rights guaranteed in the Act and has
thereby violated Section 8(a)(I) thereof.
4. The aforesaid unfair labor practices are unfair
to N L R B v Entwistle Mfg Co , 120 F 2d 532 (C A 4)
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
5. The allegation of paragraph 7 of the com-
plaint that Respondent violated Section 8(a)(1) of
the Act by refusing to discuss a grievance has not
been sustained.
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 recommended that Tonkawa
Refining Co., its officers, agents, successors, and as-
signs, shall-
1. Cease and desist from:
(a) Putting employees on temporary layoff when
they engage in concerted action for their mutual
aid and protection
(b) Threatening employees with the statement
that they would be considered as having quit when
they engage in concerted action for their mutual
aid and protection.
(c) Discharging employees becuase they en-
gaged in concerted action for their mutual aid and
protection.
(d) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of their right to self-organization; to form, join,
or assist labor organizations, to bargain collectively
through representatives of their own choosing, and
to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such ac-
tivities, 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 Section 8(a)(3) of the Act, as
amended.
2. Take the following affirmative action to effec-
tuate the policies of the Act
(a) Offer to Jay Bryant, Roger H. Burton,
George B. Devenney, Lloyd Dudley, A. J. Harney,
Jerry Hinnant, Paul Kibbe, Vern Miller, Buck
Sibley, Orin Woodrum, and Andy Woods im-
mediate and full reinstatement to their former posi-
tions, or to positions substantially equivalent to
those which they held immediately prior to January
29, 1969, without prejudice to their seniority and
other privileges (discharging those hired as their
replacements if necessary) and make each of them
whole for any loss of wages or other benefits in the
manner set forth in the section of the Decision enti-
tled "The Remedy."
(b) Notify Jay Bryant, Roger H Burton, George
B. Devenney, Lloyd Dudley, A J Harney, Jerry
Hinnant, Paul Kibbe, Vern Miller, Buck Sibley,
Orin Woodrum, and Andy Woods if presently serv-
ing in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Preserve and, upon-request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(d) Post at its place of business in Arnett,
Oklahoma, copies of the attached notice marked
"Appendix "11 Copies of said notice, on forms pro-
vided by the Regional Director for Region 16, after
being duly signed by its representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 16,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.12
IT IS FURTHER RECOMMENDED that the allegations
of the complaint, insofar as not found violative of
the Act in the Decision, be dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The trial which was held in Woodward, Oklahoma,
on May 27, 28, and 29, 1969, at which all parties
participated and had a chance to give evidence, has
resulted in a Decision that we violated Section
8(a)(1) of the National Labor Relations Act, as
amended, (I) by putting our truckdriver employees
on temporary layoff on January 28, 1969, because
they engaged in concerted action for their mutual
aid and protection; (2) by threatening our
truckdriver employees with being put in the status
of having quit if they engaged in a work stoppage in
their concerted action for their mutual aid and pro-
tection; and (3) by discharging Jay Bryant, Roger
H. Burton , George B. Devenney, Lloyd Dudley, A
J Harney, Jerry Hinnant, Paul Kibbe, Vern Miller,
Buck Sibley, Orin Woodrum, and Andy Woods on
January 29, 1969, because they engaged in con-
certed action for their mutual aid and protection
and refusing to put them back to work when they
asked to go back to work.
The Board ordered us to promise our employees
that we will not do these things again, and that we
will not, in any other way, interfere with, restrain,
or coerce them in the exercise of their rights, under
Section 7 of the National Labor Relations Act, to
Organize themselves into a union
Form, join, or help unions
Bargain as a group through a union
representative of their choice
Act together for collective bargaining or
for mutual aid and protection
Refuse to do any or all of the above, un-
less required by a valid contract providing
for union membership in accordance with
law.
We therefore promise that.
WE WILL NOT put our employees on tempo-
rary layoff when they engage in concerted ac-
tion for their mutual aid and protection
WE WILL NOT threaten our employees with
the statement that they will be considered as
having quit when they engage in concerted ac-
tion for their mutual aid and protection
WE WILL NOT discharge employees because
they engage in concerted action for their mu-
tual aid and protection.
WE WILL offer to give back their jobs to Jay
Bryant, Roger H. Burton, George B. Devenney,
Lloyd Dudley, A. J Harney, Jerry Hinnant,
Paul Kibbe, Vern Miller, Buck Sibley, Orin
Woodrum and Andy Woods, and WE WILL
make up any losses in pay or other benefits
they have suffered since we discharged them,
with interest at 6 percent.
WE WILL notify immediately the above-
named individuals, if presently serving in the
Armed Forces of the United States, of the right
to full reinstatement, upon application after
discharge from the Armed Forces, in ac-
cordance with the Selective Service Act and
the Universal Military Training and Service
Act , as amended, after discharge from the
Armed Forces
WE WILL NOT interfere with, coerce, or
restrain any of our employees in their exercise
of their Section 7 rights as set out above.
TONKAWA REFINING CO.
(Employer)
° In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 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 In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board " shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board "
11 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
TONKAWA REFINING CO 49
Dated By tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
(Representative ) (Title) Any questions concerning this notice or com-
pliance with its provisions , may be directed to the
This is an official notice and must not be defaced Board 's Office, 8A24 Federal Office Building, 819
by anyone Taylor Street, Fort Worth, Texas 76102 , Telephone
This notice must remain posted for 60 consecu - 817-334-2941.