Big Thee Industrial Gas & Equipment Co.

National Labor Relations Board - Board Decisions

Aug 9, 1974

212 N.L.R.B. 800 (N.L.R.B. 1974)

800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Big Thee Industrial Gas & Equipment Co. and Inter-
national Association of ' Machinists & Aerospace
Workers, AFL-CIO. Cases 23-CA-4840 and 23-
CA-4895
August 9, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On April 23, 1974, Administrative Law Judge Hen-
ry L. Jalette issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
to the Decision and the General Counsel filed limited
exceptions to the Decision with a brief in support
thereof.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of, the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
We agree with the General Counsel that
Respondent's conduct in discharging employee Billy
Garner not only violated Section 8(a)(4) of the Act
but also violated Section 8(a)(3) of the Act. We agree
with the Administrative Law Judge's finding that the
charges by Respondent against Garner that he testi-
fied falsely at the hearing were not made in good faith.
At the same time, the Administrative Law Judge in-
correctly limited his view of the case to one where the
Respondent was impeding the Board's processes by
discharging an employee who testified in a Board pro-
ceeding. It is clear from the record that Respondent
was deliberately attempting to impede and obstruct
the Board's processes in the representation proceed-
ing. However, the very purpose of this obstructive
conduct was directed at preventing the Union from
securing representative status among Respondent's
employees, and Garner's actions in testifying in sup-
port of the Union's petition triggered his discharge. It
is also clear that Respondent seized upon the fact that
some of Garner's testimony with regard to certain
individuals was incorrect or "untrue" as a pretext to
discharge him because of his actions in support of the
Union. In addition, we are of the further belief that
Respondent's posting of the notice to its employees
that Garner had been discharged for testifying falsely
before the National Labor Relations Board was a
plain attempt to restrain and coerce its employees
with regard to their support of the Union. There is
nothing in the record to show that it was
Respondent's policy or practice to post notices of dis-
charge so that all the employees would be advised of
a particular discharge. In these circumstances, we can
only conclude that the posting of Garner's discharge
with the reason therefor was a deliberate and con-
trived attempt to instill fear in the minds of all of its
employees that anyemployee assistance to the Union
could and would result in dire consequences to the
employees, including discharge, if they engaged in
similar conduct.
Accordingly, in addition to the 8(a)(4) and (1) vio-
lation found by the Administrative Law Judge, we
find that the Respondent's discharge of Billy Garner
violated Section 8(a)(3) and (1) of the Act, and we
shall modify the conclusions of law, recommended
Order, and notice to employees accordingly.'
AMENDED CONCLUSIONS OF LAw
The Conclusions of Law are hereby modified by
substituting the following as Conclusion of Law 2:
"2. By discharging and refusing to reinstate Billy J.
Garner because of his activities on behalf of the
Union and because he gave testimony under the Act,
Respondent has violated Section 8(a)(1), (3), and (4)
of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge , as modified
herein , and orders that Big Three Industrial Gas &
Equipment Co., Houston , Texas, its officers , agents,
successors , and assigns , shall take the action set forth
in the said recommended Order , as modified herein:
1. Insert the following as paragraph 1(a) of the Ad-
ministrative Law Judge 's recommended Order and
reletter the succeeding paragraphs accordingly:
"(a) Discharging, refusing to reinstate , or other-
wise discriminating against any employees for sup-
porting International Association of Machinists &
Aerospace Workers, AFL-CIO, or any other labor
organization."
2. Substitute the following for paragraph 1(c) of the
Administrative Law Judge 's recommended Order and
reletter it as the new paragraph 1(d):
"(d) In any other manner interfering with , restrain-
ing, or coercing employees in the exercise of their
1 As a violation of Sec 8(a)(3) of the Act goes to the very heart of the Act,
we shall issue a broad cease-and-desist order. J C Penney Co, Inc. , (Store
#1814), 172 NLRB 1279
212 NLRB No. 115
BIG THREE INDUSTRIAL GAS & EQUIPMENT CO.
rights of self-organization, to form, join, or assist the
Union, or any other labor organization, to bargain
collectively through representatives of their own
choosing, to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection, or to refrain from engaging in any or all
such activities."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the law when
we discharged Billy Garner and the Board has or-
dered us to post this notice to you:
WE WILL NOT discharge employees for support-
ing International Association of Machinists and
Aerospace Workers, AFL-CIO, or any other la-
bor organization.
WE WILL NOT discharge employees because they
have given testimony in a proceeding before the
National Labor Relations Board.
WE WILL NOT post notices, or otherwise tell you,
that we have discharged an employee because he
gave testimony in a proceeding before the Na-
tional Labor Relations Board.
WE WILL offer to reinstate Billy Garner to his
former job, or, if his job no longer exists, to a
substantially equivalent job, without prejudice to
his seniority or other rights and privileges and we
will make him whole by paying him the wages
which he lost because we discharged him unlaw-
fully.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights of self-organization, or to
form, join, or assist the Union, or any other labor
organization, to bargain collectively through rep-
resentatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from engaging in any or all such activi-
ties.
BIG THREE INDUSTRIAL GAS
& EQUIPMENT CO.
(Employer)
Dated By
801
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Dallas-Brazos Building, 1125 Brazos
Street, Houston, Texas 77002, Telephone 713-226-
4296.
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: This case
involves allegations that Respondent violated Section
8(a)(1), (3), and (4) of the Act by discharging its employee,
Billy Garner, because of his activities on behalf of the
above-named Union and because he gave testimony under
the Act, and that Respondent violated Section 8(a)(1) by
posting a notice to its employees of the discharge of Garner
for the asserted reason that he gave false testimony in a
Board proceeding. The case was initiated by a charge filed
by the Union on July 26, 1973,1 pursuant to which com-
plaint issued on August 13 2 On January 9 and 10, 1974,
hearing was held in Houston, Texas.
Upon the entire record, including my observation of the
witnesses and after due consideration of the brief filed by
General Counsel, I make the following:
FINDINGS OF FACT
1. THE FACTS
Respondent is a Texas corporation with its principal of-
fice and place of business at Houston, Texas, where it is
engaged in the manufacture of oxygen, acetylene, and nitro-
gen.3 On April 4, the Union filed a petition in Case 23-
RC-3954 for an election in a production and maintenance
unit of Respondent's employees. On April 24, a hearing on
the petition opened but hearing could not proceed because
of the failure of Respondent's attorney, Charles Vickery, to
i Unless otherwise indicated, all dates are in 1973.
2 On October 15, the Union also filed a charge in Case 23-CA-4895
pursuant to which the General Counsel issued an order consolidating cases,
consolidated complaint, and notice of hearing on November 14. The consoli-
dated complaint alleged , in addition to the allegations respecting Garner's
discharge, certain independent 8(a)(1) conduct as well as unlawful treatment
of one James Harris in violation of Sec 8(a)(3) of the Act. No evidence was
adduced in support of these allegations and Respondent 's motion to dismiss
them (pars. 7(a) and (c) and par. 8) was granted without objection of the
General Counsel.
J Jurisdiction is not in issue. The complaint alleges, the answer admits, and
I find that Respondent meets the Board's $50 ,000 direct outflow standard for
the assertion of jurisdiction
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appear because of a personal problem .4 Hearing reopened
May 8, with little of any substance being accomplished
because the Union had failed to subpoena records or offi-
cials of the employer to testify with regard to any disputes
about the appropriateness of the unit petitioned for, and
Attorney Vickery was unwilling to make a record for what
he viewed to be the Union's benefit 5 Hearing resumed on
May 21, and after some testimony had been adduced with
regard to unit issues, hearing was adjourned upon the execu-
tion by the parties of a stipulation for an election upon
consent agreement , wherein the parties agreed for an elec-
tion to be held on June 21.
Prior to the holding of the election, Respondent submit-
ted the Excelsior list as required by the Board's procedures.
The list contained 251 names and addresses, listed in a
nonalphabetical and, in my judgment, deliberately con-
trived order, using only the initial of the employees' first and
middle names.6 Upon examination of this list, the Union
concluded there were 130 names of individuals who were
not eligible in the unit agreed upon. The Union advised the
Regional Director of this by letter dated June 14, in which
it identified the 130 individuals, including job classifica-
tions, who it contended did not belong in the unit. As it
appeared to the Regional Director that the contentions of
the Union raised substantial issues of law and fact which
could best be resolved by a formal hearing, he withdrew
approval of the stipulation for certification upon consent
election and ordered that the hearing be reopened. On July
10, hearing was reopened and various representatives of the
Employer appeared pursuant to subpoenas served upon
them by the Union. Attorney Vickery protested the re-
opening of the hearing, contending that the Regional Direc-
tor had exceeded his authority in withdrawing approval of
the stipulation for certification upon consent election agree-
ment and that the hearing was being conducted without
authority of law. Despite Vickery's objections the hearing
proceeded. In the course of the examination of witnesses, it
appeared to the Union that an amendment of its petition
was required to conform to the testimony adduced from the
witnesses and it moved to amend its petition.' Vickery pro-
4 Vickery sent an attorney from his office to explain why he could not
appear.
As Attorney Vickery told the union representative on the record, "all the
b- s- about cooperating with you is because that is good for you "
6 This list was prepared by Vice President Robert Moore pursuant to
instructions from Attorney Vickery Moore testified that he included on the
list the names of all the employees in the Big Three complex except for
officers of the corporation and their secretaries Testifying about his reason
for using initials instead of complete names, Moore first testified that the
purpose was to avoid confusion. When I expressed the thought that his
explanation was incredible , he then gave as his reason "personal preference "
He offered no explanation for the nonalphabetical listing of the names, but
Attorney Vickery indicated his opposition to the Board's Excelsior list, and
it is clear that this opposition of his was the cause of the nonalphabetical
listing of names , as well as the inclusion in the list of many ineligible individu-
als. In short, Vickery made a mockery of the Excelsior list.
7 The unit agreed upon by the parties in the stipulation for certification
upon consent election agreement was as follows:
tested and when his protest was overruled he left the hear-
ing. The hearing continued without him for the remainder
of the day. When the hearing resumed on the following day
Vickery did not appear.
Despite his absence the hearing proceeded. Asa Hoff-
pauir, production manager for a division of Respondent,
had been on the witness stand when the hearing adjourned
on July 10 and he returned to the witness stand on July I 1
to complete his testimony.
He was followed to the witness stand by electrical assem-
blyman Billy J. Garner who testified as a witness called by
the Union. The purpose for calling Garner to testify was to
identify some of the 131 individuals whose names Respon-
dent had submitted on the Excelsior list.
On July 23, Garner was given a notice of discharge which
stated that he was being terminated "because of the plainly
untrue statements in your recent testimony before the
N.L.R.B. Your false testimony was so glaringly, plainly and
frequently false that you are obviously untrustworthy and
have no regard for the truth. The falsehoods are so numer-
ous and so glaring that Big Three believes many of these
falsehoods were knowlingly uttered without your believing
them to be true."
On the same day, Respondent posted a notice to its em-
ployees notifying them of its discharge of Garner for the
asserted falsity of his testimony.
II ANALYSIS AND CONCLUSIONS
The foregoing represents an undisputed chronology of
the events leading up to Garner's discharge. Several issues
are posed by that discharge, of which the principal issue is
whether Garner did, in fact, testify falsely at the hearing on
July 11. In 'its answer to the complaint, Respondent itemized
73 instances of false testimony, and at the hearing before
me, adduced testimony and introduced documentary evi-
dence in support of that answer.--It is clear that in most of
the particulars developed by Respondent Garner was
shown to have testified falsely in the sense that his testimony
was not correct. I so find. However, for reasons given below,
that fact afforded Respondent no right to discharge Garner.
General Counsel asserts that an employer may not dis-
charge an employee for giving testimony in a Board pro-
ceeding, whether that testimony be true or false. In support
of that assertion, he cites five cases.
Three of the cases, The Kramer Company, 29 NLRB 921,
Burnside Steel Foundry Company, 69 NLRB 128, and Brake
Parts Company, 178 NLRB 247, involved the filing of an
unfair labor practice charge which the employer concluded
was false and for which the employer discharged the em-
Excluded
All other employees, including employees of the Sanstrom Division,
the Todd Street Acetylene Plant, the Bayport location, all outside Sales
Manager, office clerical employees, guards, watchmen and Supervisors
as defined in the Act
Included
All production and maintenance employees employed at the
Employer's 3602 West 11th Street , Houston, Texas, location including
truck drivers, laboratory employees, service men in the Sales Depart-
ment, and all salesmen except those excluded below.
The amendment made on July 10, deleted the laboratory employees and
salesmen from the included category and amended the exclusions to read as
follows "all office clerical employees, professional and technical employees,
salesmen and engineers , guard, watchmen, and supervisors as defined in the
Act"
BIG THREE INDUSTRIAL GAS & EQUIPMENT CO. 803
ployee in question. In holding that an employer could not
discharge an employee for the asserted reason that he, filed
a false charge, the Board stated in Kramer, at page 935, "The
prohibition of [Section 8(4)] against discrimination is effec-
tive irrespective of whether the employer believes the
charges to be false or whether the ultimate proof sustains
their validity. To hold otherwise would be to subject an
employee, who invoked the protection of the Act, to the
peril of discrimination without redress in every case where
the employer considered the charges false or where, for
whatever reason, the entire proof after a trial upon the
merits failed to sustain the validity of the charges filed. To
that extent such holding would nullify the express statutory
protection afforded employees against the unfair labor
practice condemned by Section 8(4) of the Act."
This is clear language and, if applicable to the giving of
false testimony, then Respondent violated Section 8(a)(4)
and (1) of the Act by discharging Garner even though his
testimony was false. But despite the clear language of Kram-
er, General Counsel has cited no case, and I have discovered
none, where it has applied Kramer to the giving of false
testimony.
In Northwestern Mutual Fire Association, 46 NLRB 825,
an employee had admittedly testified falsely in a Board
proceeding (but retracted the testimony on the same day)
and he was subsequently discharged. The Board found that
his discharge was violative of Section 8(4) of the Act, but in
doing so it avoided holding that the giving of false testimony
was an activity protected by Section 8(4) of the Act. Rather,
because the employer had given inconsistent reasons for the
discharge, the Board held that the giving of false testimony
was not the real reason for the discharge, and found that the
discharge was for some other unlawful reason.
In Richmond Home Telephone Company, 70 NLRB 452,
the Trial Examiner had found that the employer had violat-
ed Section 8(4) when he discharged an employee for giving
false testimony, and the Board stated: "We have held, in the
Kramer case, and succeeding cases, that an employer is
prohibited under Section 8(4) of the Act from discharging
an employee for filing charges with or testifying before the
Board, even though they are false." Such a statement would
appear to cover this case, except that despite the statement
the Board has never held that an employee who in fact
testifies falsely is immune from discharge based on his false
testimony. The cases cited in footnote 5 in Richmond (North-
western Mutual, supra, and Burnside Steel, supra ), do not so
hold. Actually, in the Richmond case, the Board reversed the
Trial Examiner's finding and found that the employee was
discharged for misconduct unrelated to his testimony, de-
spite the fact that the employer had asserted that the false
testimony was one of the reasons for the discharge.
In short, in none of the cases decided by the Board has
the Board squarely held that an employee who testifies
falsely is immune from discharge by virtue of the provisions
of Section 8(a)(4) of the Act. True, the Board and the Courts
have given expansive scope to Section 8(a)(4). As the Su-
preme Court stated in Nash v. Florida Industrial Commis-
sion, 389 U.S. 235, 238 (1967), "Congress has made it clear
that it wishes all persons with information about [unfair
labor] practices to be completely free from coercion against
reporting them to the Board. This is shown by its adoption
of Section 8(a)(4) which makes it an unfair labor practice for
an, employer to discriminate against an employee because
he has filed charges. And it has been held that it is unlawful
for an employer to seek to restrain an employee in the
exercise of his right to file charges." In N.L.R.B. v. Robert
Scrivener, d/b/a A. A. Electric Company, 405 U.S. 117
(1972), the Court reiterated the statement it had made in
Nash and approved the liberal approach to Section 8(a)(4)
followed,by the courts of appeals generally, stating, at page
121, "We are aware of no countervailing considerations."
In my judgment, where false testimony is concerned,
there are countervailing considerations. I see a significant
difference between protecting an employee filing a charge
and protecting one who gives false testimony. A charge
involves conclusory allegations, the truth or falsity (merit is
a more appropriate word) of which depends on an analysis
of a whole set of facts in light of existing law and legal
precedent. An employee cannot be expected to know
whether his charge is true in those terms, and it is improper
to refer to a meritless charge as a "false charge."
The situation is different where a question of false testi-
mony is presented. An employee who testifies can be ex-
pected to testify truthfully with regard to matters within his
competence. A witness who testifies falsely does injury to
the entire process of administration, not to mention the
injury he does to himself, and I fail to see how the consider-
ations underlying Section 8(a)(4) of the Act are protected by
immunizing a false witness from discharge for his false testi-
mony. However, as I state this view, I hasten to add that the
statement is not intended to give a license to an employer
to discharge an employee whose testimony he believes to be
false. To the contrary, the cases just cited compel a con-
struction of Section 8(a)(4) which would place the burden
on the employer to show affirmatively not only that the
testimony was false, but also that it was willingly and know-
ingly false, that it was uttered with intent to deceive, and
that it related to a substantial issue. In effect, the employer
would have the burden of establishing perjury.
Perjury is defined in 18 USC § 1621 as follows:
Whoever, having taken an oath before a competent
tribunal, officer, or person, in any case in which a law
of the United States authorizes an oath to be adminis-
tered, that he will testify,, declare, depose, or certify
truly, or that any written testimony, declaration, depo-
sition, or certificate by him subscribed, is true, willfully
and contrary to such oath states or subscribes any ma-
terial matter which he does not believe to be true, is
guilty of perjury, and shall, except as otherwise express-
ly provided by law, be fined not more than $2,000 or
imprisoned not more than 5 years, or both. This section
is applicable whether the statement or subscription is
made within or without the United States.
As can be seen, the statutory provision is expressly aimed
at willful and knowing conduct intended to deceive.8 "[F]
8 Other statutory provisions dealing with false statements or declarations
(18 USC §1623, 18 USC §1001) similarly interdict knowingly and willfully
falsifying evidence.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alse testimony which is the result of an honest mistake or
inadvertence does not constitute perjury." Masinia v. United
States, 296 F.2d 871, 877 (C.A. 8, 1961). "In order to consti-
tute penury, a false statement must be made with criminal
intent, that is with intent to deceive, and must be willfully,
deliberately, knowingly, and corruptly false." Bechanstin v.
United States, 232 F.2d 1, 4 (CA. 5, 1956). "An essential
element of the crime of perjury is a showing that the witness
did not believe his statements to be true." U.S. v. Hagarty,
388 F.2d 713 (C.A. 7, 1968). "It is the belief of the individual
in the verity of his sworn testimony that is crucial." United
States v. Winter, 348 F.2d 204, 210 (C.A. 2, 1965).
It is clear that there are many connotations in the term
"false testimony." Even a mistake in testimony is "false
testimony." Of course, there is a major difference between
mistaken testimony and willfully false testimony, and it
appears to me that the considerations underlying Section
8(a)(4) of the Act can be given full play if employees are
protected against discharge for testimony based on mistake,
inadvertence, lack of understanding, and the like, while at
the same time they remain subject to discharge for willful
and knowing lies.
In Garner's case, it is evident that he did not knowingly
and willfully give false testimony.
I have already pointed out that Respondent submitted a
specification of 73 items of false testimony. This was culled
from 202 pages of testimony by Garner. The following items
from Respondent's specification are, in my judgment, illus-
trative of the nature of Garner's "false testimony."
Items 1, 2, 3, and 4. These items relate to a chart prepared
by Garner which purported to be the chain of command in
Respondent's organization and which Garner testified was
based on a chart maintained by Respondent. Respondent's
witnesses testified that Respondent does not maintain a
chart of a chain of command. On this chart, Garner showed,
inter alia, that one A. W. Smith was president of NOW-
SCO, when, in fact, NOWSCO has no president; Ray Plum-
mer was shown as NOWSCO'S vice president, when, in fact,
he is a general manager; Harry Allen was shown to be a vice
president, when, in fact, he is secretary of Respondent;
Harry Allen was shown to report to C. Glazier, an executive
vice president, when, in fact, he reports to Board Chairman
H. K. Smith.
Item 9. This item is based on the following excerpts of the
R case transcript:
HEARING OFFICER: Are there ever company parties?
THE WITNESS: Such as Christmas parties?
HEARING OFFICER: Christmas parties.
THE WITNESS: There is.
HEARING OFFICER: Picnic?
THE WITNESS: There,is.
HEARING OFFICER: Do the salesmen come to these?
THE WITNESS: They do.
HEARING OFFICER: Do all the production employees
come?
THE WITNESS: They don't.
HEARING OFFICER: They don't?
THE WITNESS: No, they don't, because the rank and file
isn't invited to the parties.
HEARING OFFICER: I see.
Respondent's witnesses testified, and Garner admitted at
the hearing before me, that all employees are invited to
company picnics.
Items 17, 18, 19, 20^ 21. These items all relate to the
supervisory status of S. K. Franklin and Russell Hankins.
According to Garner, Hankins was over Franklin, Franklin
hired one Billy Page, and Hankins supervised the parts de-
partment only. According to Respondent's witnesses,
Franklin did not hire Billy Page, Hankins is not over
Franklin, and Hankins is not supervisor of the parts de-
partment.
Item 28, Garner testified that NOWSCO, which is a, divi-
sion of Respondent, stands for National Oil Wells Service
company, when, in fact, the initials stand for Nitrogen Oil
Well Service Co.
Item 35. Garner testified that P. A. Almaguer worked in
accounts receivable. When asked if he ever saw him in the
shop area, Garner said he did, at break time, and that Al-
maguer also came out to the cafeteria. In fact, Almaguer is
a woman.
Item 37. Garner testified Harper Avis was a gas sales-
man and not a supervisor, when, in fact, Avis was chief
plant engineer (a supervisory position) and was never a
salesman.
Items 39 and 50. Item 39 relates to testimony by Garner
that a Mr. Burton was a salesman for NOWSCO, and that
he was salaried and was provided with a company car.
Item 50 relates to Garner's testimony that one Charles Da-
mek repaired pump motors and generators, was under the
supervision of a Mr. Wheat, and used his own car, but was
provided with gasoline by the company.
According to Respondent's witnesses, the falsity in the
testimony in item 39 consisted in calling Burton a salesman
when, in fact, he was, according to personnel records, a
service specialist, and in fact was given a car allowance.
In Item 50, the falsity consisted in saying Wheat was
Damek's supervisor, when, in fact, it was Harper Avis; in
saying Damek repaired pump motors, when, in fact, he
repaired the pumps, and in saying he was not provided a
company car, when in fact he was.
Item 41. Garner identified a Mr. Brewer as company
pilot and testified that his office was at Hobby Airport.
The asserted falsity in this testimony was not Garner's
identification of Brewer as a pilot (Respondent's chairman
identified him as a chief pilot) but his placing Brewer's
office at Hobby Airport when, in fact, it is at Interconti-
nental Airport.
Item 47. Garner testified that one W. O. Crain was valet
to Board Chairman Smith and Smith's chauffeur. Smith
denied he had a chauffeur and Crain denied being a chauf-
feur.
Item 48. Garner testified that one Clairmonte was an
assistant lawyer, when, according to his personnel record,
he was an inventory control analyst.
Item 55. Garner testified that the name F. L Farley
which appeared on the list from which he was testifying
stood for Mrs. F. L. Farley, secretary to the Board chair-
man, when, in fact, F. ' L. Farley is a male employee and a
truckdriver.
The foregoing instances are sufficient, in my judgment,
for any review body to obtain a sense of the nature of the
BIG THREE INDUSTRIAL GAS & EQUIPMENT CO. 805
false testimony charged by Respondent to Garner. In all
instances the falsehoods are clearly mistakes of the witness,
as a result of inadvertence , ignorance of the true facts, or
misunderstanding.
For example:
Items 1, 2, 3, and 4 : the thrust of Respondent's accusa-
tion is that Respondent does not maintain a chart of any
chain of command , that Respondent 's chairman does not
believe in such things because they restrict initiative. Of
course , whether or not Respondent maintains a chart as
drafted by Garner is not important . Garner was merely
trying to explain , as he understood it, Respondent 's organi-
zational structure . He testified , and I credit him, that his
chart was based on a hand drawn chart he had seen in the
salesmen's demonstration area to which he had added
names and positions . He clearly was in error, but the na-
ture of his error is noteworthy : he incorrectly described the
official position of Respondent 's officers . This was an error
which had nothing to do with eligibility to vote.
Item 9. It is clear from reading the questions and an-
swers under this item that what Garner was testifying to
was that employees are not invited to Christmas parties.
The manner of his examination evidently caused him to
misunderstand the question "Do the salesmen come to
these?" as relating to Christmas parties, and not picnics,
because after answering "they don't ," Garner stated, "No,
they don't, because the rank-and -file isn't invited to the
parties."
Items 17, 18, 19 , 20 and 21 . Under these items, Garner
gave testimony that was clearly wrong. Thus , Hankins was
not over Franklin, nor was he supervisor of parts. As a
matter of fact , however, Franklin is supervisor of parts and
Hankins is shop manager , and, according to Franklin, he
and Hankins work together . It is evident that Garner's tes-
timony was simple error. The critical issue was whether
Hankins and Franklin were supervisors ; Respondent did
not address itself to that issue.
As to his reference to Billy Page, Garner admitted he
confused Billy Page with another employee named Billy
Reece.
Item 28 . Little need be said about Garner's alleged false
testimony under this item . The allegation might be termed
frivolous were it not for the fact that it is part of the fabric
woven by Respondent to discharge an employee who testi-
fied against what it believed were its interests.
Item 35 . It is clear that Garner testified "falsely" when
he referred to a P . A. Almaguer as a male whom he had
seen on break periods , because P . A. Almaguer was, in
fact, Phyllis Almaguer , a female. The very fact that Garner
would identify a female employee as a male employee
shows that Garner was mistaken about the identity of
P. A. Almaguer and that he was not knowingly falsifying
his testimony . As Garner testified before me , "There was
this Spanish American fellow that I thought his name was
Almaguer . That's a mix-up."
Item 37. Since Harper Avis is unquestionably a supervi-
sor, ineligible to vote, and since the Union wanted to ex-
clude him from the unit, Garner would have no reason to
lie about his job classification , and his error was clearly
due to a mistake or ignorance of Avis' correct classifica-
tion.
Item 39 and 50 . Under these items, Garner is accused of
uttering several falsehoods . Thus, he has Burton being pro-
vided with a company car, when he isn't , and he has Da-
mek without a company car , when he has. Whatever the
explanation for Garner's mistakes, it could not have been
willful or knowing , because if it was important to have
Burton with a company car, it was equally important to
have Damek with one and yet Graner has Damek without
one.
Insofar as Garner erred in saying Wheat was Damek's
supervisor , it would not have been with an intent to de-
ceive, because, although Wheat may not have been
Damek's supervisor, he was in fact a vice president.
Respondent's accusation of false testimony because Gar-
ner stated Damek repaired pump motors or motor genera-
tors when in fact Damek repaired pumps is mischievous.
Item 41 . As chief pilot, Brewer would be excluded from
the unit and the location of his office is completely imma-
terial. The assertion of false testimony in this particular is
also mischievous.
Item 47. Although Smith denied having a chauffeur and
Crain denied being one, the record indicates that he is as-
signed to the department of transportation, in fact does
some chauffeuring of individuals to and from the airport
and does have duties related to Respondent 's beach house.
Thus, if Garner was in error on details it was clearly an
honest mistake , and of no consequence as Crain would
appear to be an ineligible employee.
Item 48 . It appears that the falsehood charged to Garner
in this item is based on his description of, employee James
Clairmonte as an assistant lawyer, who handles legal work
for the company when, in fact, his job classification is in-
ventory control analyst , he has no legal training, and he
does not handle legal work . However, Respondent employs
one Arthur Slaughter as house counsel and Clairmonte was
under his supervision , albeit for non legal duties, and
Garner's testimony was evidently based on an erroneous
understanding of Clairmonte 's duties, rather than a willful
fabrication.
Item 55 . It is clear that Garner was in error in identifying
E. L. Farley (this was the name supplied to him ) as Faye
Farley. It is clear again that his error was an honest mis-
take inasmuch as Respondent did employ a Faye Farley as
secretary to the Board chairman, and while her name had
not been included on the Excelsior list, Garner would have
no reason to know that. After all, Attorney Vickery had
included the name of house counsel Arthur Slaughter on
the list.
One item to which I have not yet made reference is item
34 in which Garner grossly overstated the difference be-
tween his rate of pay and that of a Mr. Maduzia. Garner
testified at the hearing before me that he had misunder-
stood the questions put to him , and while his explanation
was not completely satisfactory , I am not prepared to hold
that he willfully and knowingly testified falsely with intent
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to deceive. In any event, in the final analysis, there appears
to be no doubt that Mr. Maduzia was a supervisor .9
In summary, an analysis of the record in the representa-
tion case indicates clearly that Garner did not knowingly
and willfully testify falsely as to any material fact with the
intent to deceive. Clearly, he undertook a task for which he
was poorly equipped. Electrical assembly employees are
not privy to the type of information Garner was asked to
testify to. Garner admitted that he based much of his testi-
mony on secondary sources. On the other hand,
Respondent's own conduct compelled the Union to rely on
secondary sources to make a record so that the Board
could be enabled to make a proper unit determination, un-
encumbered by an overwhelming number of challenges be-
cause of the Excelsior list submitted by Respondent. Given
the nature of the mistakes in Garner's testimony, I con-
clude that the protection of Section 8(a)(4) is not to be
forfeited for reasons such as Respondent has here given,
and I find that by discharging Garner because he gave
testimony under the Act Respondent violated Section
8(a)(1) and (4) of the Act.
Although no such defense has been asserted, Respon-
dent may well contend in-the event it seeks review of this
decision that it believed in good faith that Garner had testi-
fied falsely and that, accordingly, it may not be held to
have violated the Act because it has been concluded that
he did not testify falsely in the statutory sense of the word.
N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21 (1964), would
dispose of'such an argument. Additionally, I find that the
charge of falsity against Garner was not made in good
faith. The tactics of Attorney Vickery and the Excelsior list
submitted by Respondent demonstrate clearly an intention
to obstruct and subvert the processes of the Board and
Garner's testimony put that plan at hazard. This was what
Respondent resented and not the mistakes Garner made in
his testimony. At the representation hearing, Attorney
Vickery referred to Respondent's employees who were pre-
sent at the hearing on behalf of the Union as "monkeys.""
Apart from the unprofessional behavior of Vickery in mak-
ing such a remark, the remark reveals the strong resent-
ment of Respondent against employees assisting the Union
and negatives any assertion of good faith.
The complaint alleges that Garner was discharged in vi-
olation of Section 8(a)(3) as well as Section 8(a)(4). I am
not persuaded that the evidence is sufficient to support
such a finding, and I shall recommend that the allegation
be dismissed.
As to the notice to employees of the firing of Garner, I
find that by posting such a notice Respondent violated
Section 8(a)(1) of the Act. Such a notice will tend to lead
employees to believe that their right to give testimony un-
der the Act is subject to the review and judgment of the
employer and that if he believes they testified falsely, he
can discharge them. Employees would thereby be re-
strained from exercising their statutory right to give truth-
9 If Garner was too willing to testify about Maduzia's rate of pay, Asa
Hoffpauir was just the opposite Although he was production manager, he
testified he had no idea what Maduzia's rate of pay was.
ful testimony for fear that their employer will adjudge
them guilty of giving false testimony and discharge them.10
III THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section li, above,
occurring in connection with its operations described there-
in, 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 thereof.
IV. THE REMEDY
Having found that Respondent violated Section 8(a)(1)
and (4) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Where it has been found that an employee was unlawfully
discharged, it is customary to order his reinstatement. Re-
spondent contends, that such an order should not issue in
this case, because of misconduct on the part of Garner
during his employment by Respondent which Respondent
discovered after his discharge. I find no merit to the conten-
tion.
The misconduct charged to Garner related to his having
performed services after his regular working hours for a firm
which allegedly was competing with Respondent to provide
repair services to customers of Respondent. The record re-
vealed only one instance of such competition and there was
no date given for it. Garner admitted working for the al-
leged competitor after hours, and he also loaned $850 to the
competitor. However, this was in 1969 and involved a very
small amount of work (Garner received $50). Garner ceased
the association in January 1970. Given the slight role played
by Garner in this matter and the fact the association ended
in January 1970, this matter is insufficient to justify denying
reinstatement to Gamer.
In addition to the foregoing, Garner is charged with mis-
conduct because at the time of his discharge he had compa-
ny parts at home which had been taken from the company
without a shipping order. These parts consisted of control
knobs, potentiometers, pilot lights and some wire elements.
Garner explained, without contradiction, that Nunn Elec-
tric Company was selling eight element control stations to
Respondent, and he was paid by Nunn to assemble them at
home. Nunn did not have the parts described above and
Garner took such parts from Respondent' s parts depart-
ment. The stations when completed were delivered to Re-
spondent. Thus, it is clear that Garner was not taking parts
from the company for any personal profit;, rather, they were
attached to equipment for delivery to Respondent. Whether
or not Nunn Electric gave Respondent an allowance for the
use of such parts is not shown, but, in any event, no blame
can attach to Garner who testified, without contradiction,
10 American International Aluminum Corp, 149 NLRB 1205.
BIG THREE INDUSTRIAL GAS & EQUIPMENT CO. 807
that he was involved in this extra work with his supervisor,
and that the then plant manager had been told of the ar-
rangement and had approved , including approving the use
of Respondent's parts. In short , Garner did not engage in
any misconduct.
In accord with the foregoing , I shall recommend that
Respondent be ordered to offer Billy Garner immediate and
full reinstatement to his former job, or, if such job no longer
exists, to a substantially equivalent position, without preju-
dice to his seniority or other rights and privileges, and to
make him whole for any loss of earnings he may have suf-
fered by reason of his unlawful discharge by payment to
him of a sum of money equal to that which he normally
would have earned as wages from the date of his discharge
to the date of the offer of reinstatement , less net earnings,
to which shall be added interest at the rate of 6 percent per
annum in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Big Three Industrial Gas & Equipment Co. is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. By discharging Billy J. Garner because he gave testi-
mony under the Act, Respondent engaged in , and is engag-
ing in, unfair labor practices within the meaning of Sections
8(a)(l) and (4) and 2(6) and (7) of the Act.
3. By posting a notice advising its employees that it had
discharged Billy Garner because he gave testimony under
the Act, Respondent interfered with, restrained, and
coerced its employees in the exercise of their rights under
Section 7 of the Act, and thereby engaged in , and is engag-
ing in, unfair labor practices within the meaning of Sections
8(a)(1) and 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case , and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
IORDER"
Respondent , Big Three Industrial Gas & Equipment Co.,
its officers , agents, successors , and assigns , shall:
11 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 , 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.
1. Cease and desist from:
(a) Discharging or otherwise discriminating against em-
ployees because they have given testimony under the Act.
(b) Interfering with, restraining , or coercing employees
in the exercise of rights guaranteed by Sections 7 and 8(a)(4)
of the Act by posting notices, or otherwise notifying em-
ployees, that an employee was discharged because he gave
testimony under the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Billy Garner immediate and full reinstatement
to his former job, or, if such job no longer exists, to a
substantially equivalent position , without prejudice to his
seniority or other rights or privileges, and make him whole
for any loss of pay he may have suffered by reason of the
discrimination against him by payment to him of a sum of
money equal to the amount he normally would have earned
as wages from the date of his discharge to the date of his
reinstatement in the manner set forth in the section entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board and its agents for examination and copying, all pay-
roll records , social security payment records, timecards, per-
sonnel records and reports, and all other records relevant
and necessary to a determination of the amount of backpay
due under the terms of this recommended Order.
(c) Post at its Houston, Texas place of business, copies of
the attached notice marked "Appendix." 12 Copies of said
notice, on forms provided by the Regional Director for
Region 23, after being duly signed by Respondent's repre-
sentative , shall be posted by it immediately upon receipt
thereof, and maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where no-
tices to employees are customarily posted . Reasonable steps
shall be taken by Respondent to insure that said notices are
not altered , defaced , or covered by any other material.
(d) Notify the said Regional Director, in writing , within
20 days from the date of this Decision , what steps Respon-
dent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the complaint
not found to have been established by a preponderance of
evidence be, and they hereby are , dismissed.
12 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 National 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."