Big Three Industrial Gas& Equipment

National Labor Relations Board - Board Decisions

Jun 23, 1977

230 N.L.R.B. 392 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Big Three Industrial Gas & Equipment Co. and Oil,
Chemical and Atomic Workers International
Union, AFL-CIO. Case 23-CA-6190
June 23, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On February 18, 1977, Administrative Law Judge
Donald R. Holley issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief and General
Counsel filed limited exceptions and a brief in
support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
We adopt the Administrative Law Judge's finding
that Messrs. Park, Alexander, Richardson, Osborn,
Reddoch, Lindsay, and Fagan are supervisors within
the meaning of Section 2(11) of the Act. In support
of that finding, we note that, in addition to the
evidence relied on by the Administrative Law Judge,
the record shows that the above-named individuals
possess the independent authority to terminate and
discipline employees, and effectively recommend
such actions.
Secondly, we adopt his findings that Supervisors
Park, Richardson, Osborn, Lindsay, and Peters
violated Section 8(a)(l) by interrogating, threatening,
and promising benefits to employees to discourage
union activity. We further adopt his finding that, in
August 1976, the Respondent terminated 34 employ-
ees, its entire maintenance work force, in violation of
Section 8(a)(3), in order to dissipate support for the
Union. In doing so, however, we disavow the
Administrative Law Judge's conjectures in regard to
whether union activity was discussed at a manage-
ment meeting immediately preceding the termina-
tions. These conjectures are without support in the
record and are, in any event, completely unnecessary
to a finding that the terminations violated Section
8(a)(3).
Finally, we have determined to reverse the Admin-
istrative Law Judge's finding that the suspension of
employees Fairless and Coryell did not violate
Section 8(aX3) of the Act, as contrary to the
preponderance of the uncontroverted evidence. On
August 17, 1976, Coryell, Fairless, and another
employee, Lee Judd, all left the company grounds to
have dinner in violation of an announced company
rule. The Administrative Law Judge found that
Respondent knew that Coryell and Fairless had
signed authorization cards, but that Judd had not;
that Supervisor Richardson knew that all three had
left the plant that night; and that Richardson was
present when Plant Maintenance Superintendent
Borey suspended Coryell and Fairless. The Adminis-
trative Law Judge, however, found no violation on
the grounds that the record did not show that Borey
personally knew that Judd had also violated the rule.
We conclude, however, that such knowledge by
Borey is not necessary for a finding of an 8(a)(3)
violation here.
As found by the Administrative Law Judge,
Richardson knew that all three had violated the rule.
He reported to Borey the misconduct of Coryell and
Fairless only, and the following day they were
suspended by Borey in his presence. Further,
Richardson told Judd on the day of the suspension,
as credited by the Administrative Law Judge, "Lee,
don't leave the plant any more without punching
out.... Don't worry about it though, we're not
after you." This statement and the preceding events
warrant the inference that Richardson effectively
recommended Coryell's and Fairless' discipline or
played a part therein. It also establishes his wrongful
motive in doing so. It is well established that such
unlawful motive is attributable to Respondent even if
the latter was not aware of the reason for its agent's
conduct or even if Respondent, in fact, was merely
acting to implement a lawful policy.' Accordingly,
we find that Respondent, through Richardson's
actions, violated Section 8(a)(3) of the Act when
Borey suspended Coryell and Fairless. To that end,
we will modify the Administrative Law Judge's
recommended Order.
AMENDED REMEDY
As we have found that Coryell and Fairless' 3-day
suspensions were undertaken in violation of Section
8(a)(3) of the Act, we shall order that they be
reimbursed for those suspensions, with interest to be
computed in the usual manner, as set forth in the
Remedy section of the Administrative Law Judge's
decision dealing with the unlawful terminations.
i Sears, Roebuck and Co.. 172 NLRB 2222, fn. I (1968).
230 NLRB No. 48
392
BIG THREE INDUSTRIAL GAS & EQUIPMENT CO.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Big Three Industrial Gas & Equipment Co.,
Houston, Texas, its officers, agents, successors, and
assigns, shall take the action set forth in the
recommended Order, as so modified.
1. Substitute the following for paragraph l(e):
"(e) Discouraging membership in or activities on
behalf of, Oil, Chemical and Atomic Workers
International Union, AFL-CIO, or any other labor
organization of its employees, by discharging and/or
suspending employees because of their activities on
behalf thereof or otherwise discriminating in regard
to the hire or tenure of employment or any terms or
conditions of employment of its employees."
2. Insert the following as paragraph 2(b) and
reletter the subsequent paragraphs accordingly:
"(b) Make employees Coryell and Fairless whole
for any loss of pay due to their unlawful 3-day
suspension, in accordance with the manner set forth
in the Remedy section."
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 hearing in which all sides had a chance to
give evidence, the National Labor Relations Board
has found that we violated the National Labor
Relations Act, as amended, and we have been
ordered to post this notice.
The Act gives the employees the following rights:
To engage in self-organization, to form,
join, or assist any union
To bargain collectively through represen-
tatives of their own choosing
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT do anything that interferes with
these rights. More specifically,
WE WILL NOT interrogate you regarding your
union activities or sentiments or regarding the
union activities or sentiments of your fellow
employees.
WE WILL NOT threaten you with reprisals
because you chose to engage in union activities.
WE WILL NOT promise benefits or better
working conditions to dissuade you from partici-
pating in union activities.
WE WILL NOT create the impression that the
union activities of our employees are under
surveillance by management.
WE WILL NOT discharge or suspend employees
for engaging in union activity on behalf of Oil,
Chemical and Atomic Workers International
Union, AFL-CIO, or any other labor organiza-
tion.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights under Section 7 of the Act.
WE WILL offer T. T. Aldridge, Thomas All-
bright, James Bowlin, Jesse D. Burleson, Gary
Carrico, John E. Coryell, Richard A. Dickman,
James L. Ellis, William Fairless, Alan E. Fowler,
Robert M. Fox, Kenneth Gatlin, Tom Hurt,
Louren Lamb, Daniel G. Leggett, Jesse Lopez,
Richard McBride, Steve McKnight, Robert Mol-
is, Robert Rhoades, Richard Michael Robb,
Charles Rodriguez, Talmadge F. Smith, Jeff
Stevenson, Ricky Talent, J. K. Trojanowski, Fred
Walker, Johnnie M. Williams, Marvin J. Wil-
liams, Steve Wylie, Ken Tadlock, Mike Vickery,
Lee Judd, and Floyd Williams immediate and full
reinstatement to their former jobs or, if such jobs
no longer exist, to a substantially equivalent
position of employment, without prejudice to
their seniority or other rights, and WE WILL make
each of these employees whole for any loss of pay
he or she may have suffered by reason of our
discrimination against them.
WE WILL make whole employees John E.
Coryell and William Fairless for any loss of pay
due to their unlawful 3-day suspension.
BIG THREE INDUSTRIAL
GAS & EQUIPMENT Co.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge: Upon a
charge and an amended charge filed by the above-named
Union on August 31 and September 7, 1976, respectively, a
complaint was issued on October 4, 1976, alleging that
Respondent Big Three Industrial Gas & Equipment Co.,
herein called Big Three or the Respondent, had engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(aXI) and (3) of the National Labor
Relations Act, as amended, herein called the Act. The
Respondent filed an answer denying that it had engaged in
the alleged unfair labor practices.
393
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A hearing in this proceeding was held before me in
Houston, Texas, on December 8, 9, and 10, 1976.1
Following the close of the hearing, Respondent and
General Counsel filed briefs with the Administrative Law
Judge.
On the entire record in the case, the briefs, and from my
observations of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The complaint alleged and the answer admitted that the
Respondent, a Texas corporation, has, at all times material
herein, maintained its principal place of business at
Houston, Texas, with an office and place of business
located at 11400 Bay Area Boulevard, Pasadena, Texas,
where it engaged in the manufacture of oxygen, acetylene,
and nitrogen.
During the past 12 months which is a representative
period, it manufactured, sold, and shipped products valued
in excess of $50,000 from its Pasadena, Texas, facility
directly to States of the United States other than the State
of Texas.
Upon these admitted facts, I find that the Respondent
has been at all times material herein an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union herein has been,
at all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues presented in this case are:
I. Whether Joe Park, Gerald Alexander, John Richard-
son, Ray Osborn, Lynn Reddoch, Albert Lindsay, and A.
J. Fagan are supervisors within the meaning of Section
2(11) of the Act.
2. Whether the Respondent engaged in specific viola-
tions of Section 8(a)(1) of the Act alleged in the complaint.
3. Whether the Respondent suspended employees
William Fairless and John Coryell for 3 days on August 18,
1976, for reasons violative of Section 8(a)(1) and (3) of the
Act. 2
4. Whether the Respondent terminated 34 named
employees on August 25, 1976, for discriminatory reasons
within the meaning of Section 8(a)(1) and (3) of the Act.
At the hearing, General Counsel was permitted to amend the complaint
as follows: Par. 6 - H. R. Smith, chairman of the board rather than
president; Sid Peters, general manager rather than maintenance manager;
and change A. J. Fayan to A. J. Fagan. Par. 15 - strike "discharge" and
substitute therefore "terminated." Respondent was thereafter permitted to
amend its answer as follows: Par. 6 - change denial to admission that H. R.
Smith, Sid Peters, Tom Beville, and Roland Borey are supervisors within the
meaning of Sec. 2(11) of the Act; pars. 19(c) and (d) - strike "company
B. Background
Big Three operates plants at various points in Texas and
elsewhere. The only plant directly involved in this proceed-
ing is the plant located at Pasadena, Texas, which is known
as the Bayport plant.
Prior to the end of October or beginning of November
1975, Respondent accomplished the maintenance work at
its Bayport plant by utilizing a small utility crew and by
subcontracting most of the work to Brown & Root, a large
nonunion contractor. On occasion, a team of specialists
called the SMAT team or group,3 employed by Respon-
dent and utilized as a traveling troubleshooting force
would perform limited work at the plant.
The record reveals various Respondent officials became
disenchanted with the state of maintenance at the Bayport
plant in late 1975. To remedy the situation, the SMAT
group was taken off the road and assigned to Respondent's
maintenance department at the Bayport plant. The mem-
bers of the SMAT group were told that Respondent
intended to hire its own maintenance force and phase
Brown & Root out at the Bayport plant. Additionally there
was indication that once the maintenance situation was
under control again at the Bayport plant, the SMAT group
would go on the road again.
Effectuating its plan, Respondent hired many mainte-
nance employees (i.e., millwrights, pipefitters, welders, and
helpers) during late fall of 1975 and early 1976.
Thus, by mid-July 1976, Respondent's maintenance
force at the plant was overstaffed to some extent and it
sought to reduce it by eliminating some so-called dead-
wood. Accordingly, four employees from Respondent's
maintenance crew and two Brown & Root maintenance
people were informed they would be laid off on Friday,
July 16, 1976.
C. The Union Campaign
Respondent's above-mentioned layoff plans triggered a
union organization campaign at the Bayport plant. Thus,
employees Richard Robb, Thomas Hurt, and several other
employees, upon learning a layoff was to occur, went to the
office of Respondent's assistant maintenance supervisor,
Joe Park, and complained that they had understood that in
event of a layoff Brown & Root maintenance personnel
would be removed before Respondent's own personnel.
The matter was thereafter adjusted by Respondent as it
agreed to refrain from laying off three Respondent
employees, but laid off a fourth man who cussed out his
supervisor when informed he was to be laid off. After
talking to Park, Hurt contacted Mr. L. Q. Black, Interna-
tional representative of the Union, and inquired what the
employees should do to organize the Bayport plant. Black
indicated the first step would be to acquire the signatures
of 51 percent of the employees on union authorization and
supervisors" and substitute therefore "John Richardson"; and par. 19( 0f) -
strike "leaderman and supervisors" and substitute therefore "maintenance
members."
2 General Counsel was permitted to amend the complaint to allege the
correct date of suspension at the hearing.
3 SMAT is the abbreviation of Special Maintenance and Technician
Team.
394
BIG THREE INDUSTRIAL GAS & EQUIPMENT CO.
applications for membership cards. Employee Richard
Robb obtained a number of cards from the Union on July
14, 1976. Robb and Hurt thereafter distributed the cards
among Respondent's maintenance employees, utility em-
ployees, and operations or production employees. By
August 25, some 38 cards had been signed, most within the
maintenance department. Operations employees were
reluctant to sign. Respondent's maintenance and utility
groups were terminated on the above-mentioned date. At
that time, the signatures of 51 percent of the production,
maintenance, and utility employees had not been obtained.
D. The Supervisory Issue
The complaint alleges that I 1 named individuals were, at
all times material herein, agents of Respondent and
supervisors within the meaning of Section 2(11) of the Act.
Respondent admits that H. K. Smith, chairman of the
board; Sid Peters, general manager; Tom Beville, plant
manager; and Roland Borey, plant maintenance superin-
tendent, are agents and supervisors as alleged, but denied
the allegation as to the following: Joe Park, assistant
maintenance superintendent; Gerald Alexander, personnel
director; John Richardson, maintenance supervisor; Ray
Osborn, maintenance supervisor; Lynn Reddoch, mainte-
nance supervisor; Albert Lindsay, maintenance supervisor;
and A. J. Fagan, maintenance supervisor.
The record reveals that, with exception of Park and
Alexander, the persons whose status is disputed are persons
whom the employees regard as their immediate supervisors.
These individuals, Richardson, Osborn, Reddoch, Lindsay,
and Fagan, all wear white hats worn by other management
personnel and, with exception of Fagan, who is paid an
hourly rate, are salaried employees. During the times
material herein, each of the line supervisors had office
space in or conducted business in a separate building
located at the front of the plant which was called the
"White House" and they were designated as supervisors in
Respondent correspondence. The record clearly reveals
that the line supervisors, as well as Park, had an exercised
authority to: interview applicants for employment; direct
their subordinates in the performance of their work tasks;
change employees from one work task to another in
situations wherein supervision was also changed; grant
requests for time off; determine who worked overtime and
how long they would work; and recommend that employ-
ees receive wage increases. Alexander, Respondent's
personnel manager, is in charge of training and personnel
at the Bayport plant, and is supervised by Gerald
Dowman, Respondent's corporate director of personnel.
Park, the assistant maintenance superintendent, supervised
the line supervisors. I conclude that Respondent's conten-
tion that the above-named individuals are not agents of
Respondent to be spurious as they each possess multiple
indicia of supervisory authority. Accordingly, I find that
Park, Alexander, Richardson, Osborn, Reddoch, Lindsay,
and Fagan were, and have been at all times material herein,
agents of Respondent and supervisors within the meaning
of Section 2(1 1) of the Act.
4 M.J Pirolli & Sons, Inc., 194 NLRB 241, 246 (1971), enfd. 80 LRRM
3170, 68 LC Para. 12.843 (C.A. 1, 1972). cert. denied 409 U.S. 1008, and
cases cited therein.
E. The Alleged 8(aX)(1) Conduct
General Counsel called some six witnesses to prove the
independent allegations of Section 8(aXI) of the Act
alleged in paragraphs 7, 8, 9, and 10 of the complaint.
These witnesses attributed certain acts and conduct to
Supervisors Park, Richardson, Osborn, Lindsay, and
Peters. Respondent failed to cause any of the named
supervisors to testify, although the record reveals that they
were still in the employ of Respondent or their wherea-
bouts were known. Such inaction virtually eliminates any
question of credibility in this case as I conclude the
testimony of General Counsel's witnesses was plausible
and I infer that had Respondent produced the supervisors
as witnesses, their testimony would have been adverse to
the interest of Respondent.4 Discussion of the testimony
pertaining to each of the named supervisors is set forth
below.5
1. By Assistant Maintenance Superintendent Joe
Parks
Employee Lee Thomas Judd testified he conversed with
Park about July I in the latter's office concerning a raise.
Judd observed he had been put in for a raise and stated he
felt he deserved it. Park replied, "there's no doubt about it.
If it was left up to me, I'd bring you up to $7.50. .... I
can't do it right now." Judd then stated, "As far as the
Union is concerned" and Park interrupted him to observe
"We know, you haven't signed a card." I find that by
indicating, in the above-described context, that Respon-
dent knew Judd hadn't signed a card, Park's comment
suggested that Respondent was maintaining surveillance of
the employees' union activities and, accordingly, I find the
remark constituted a violation of Section 8(a)(1) of the Act.
Thomas Hurt, who was the only employee to actively
assist Mike Robb in the solicitation of union authorization
cards, testified he had occasion to visit the maintenance
supervisor's office on July 23. When he walked in, Park
said, "Tom, what is all this union bullshit about?" Hurt
replied, "Well, everyone is talking about the Union" and
Park said, "That's not what I'm referring to - who's
passing out the cards?" Hurt answered that he didn't know
and Park then asked, "Who are the agitators?" Hurt told
him he couldn't tell him that. Thereupon Park asked what
the problems were and inquired whether maintenance
could block the Union. Hurt replied he felt maintenance
could block the Union and Park then informed him if they
could they could have anything to satisfy their gripes and
bitches. I find Respondent, through the actions of Park,
violated Section 8(a)(1) of the Act on July 23 by
interrogating employee Hurt concerning the union activi-
ties of employees and by promising to remedy gripes and
bitches if the employees would block the Union.
Employees Richard Michael Robb and Thomas Hurt
both gave testimony concerning a conversation which they
had with Park in an office at the White House in late July.
Robb placed the conversation as having occurred on July
22 and Hurt testified it occurred on Sunday, July 25.
Regardless of the actual date, both employees indicated the
I All dates are in 1976 unless otherwise indicated.
395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation took place after they had completed work and
that employee Talmadge Smith accompanied them to the
office pursuant to Park's previous request that they stop by
after work so they could go have a beer. Hurt, corroborated
by Robb, testified Park greeted them by saying he was
ashamed of them because they didn't tell him they were
going to organize the Union so he could help them - to
use this as leverage to get more benefits and better working
conditions at the plant. During the conversation, Park
asked how much time they had, indicating they wanted to
straighten out some things. He concluded stating he had
worked with unions before and they had done nothing but
take money from the people; he had never seen a union
that did anything for the working man. I find that Park
clearly sought during the conversation in question to cause
Robb and Hurt, who he then knew to be the leaders of the
union campaign, to abandon or slow down their union
activities, by, in effect, promising that Respondent would
grant better benefits and improve working conditions to
avoid unionization. I find that such conduct violated
Section 8(a)( ) of the Act as alleged.
2. By Maintenance Supervisor John Richardson
Shortly after Richardson had been introduced to em-
ployee Robb and others as their "new mechanical supervi-
sor," the employees freely discussed the Union with him.
Employee Hurt explained the relationship as follows:
John Richardson had come up there. He was a new
man with the company. He was trying to get in good
with the men, which like I explained to him, I hated to
see a new man come into the company at this time
because of the problems we were having.
Mr. Richardson, we got to talking to him, and he
would tell us what was going on in the supervisor's
meetings. I mean this was a "big leak" from the White
House.
He told us that at the last supervisor meeting he had
heard that Tom Hurt and Mike Robb would never go
anywhere with this company because [we] had tried to
get a union in there, and that he felt that if we needed
to get a jump on trying to find another job, this would
be the time to do it.
We went ahead and talked about other things in the
union and the problems the company was having.
* *
At this particular meeting, he had stated that one of
our big leaks was Mr. Bowlin, carrying tales over to the
White House.
General Counsel contends that Richardson, by engaging
in the above conversation, which is set forth in the
witnesses' words, threatened Robb and Hurt by telling
them they would never be promoted and they should seek
other jobs and intimidated them by giving the impression
6 Allbright claimed he saw a piece of paper indicating operators were to
receive $7.90 per hour several days before the conversation. Respondent's
witnesses denied the operators received a raise before November. I find the
record evidence insufficient to show that operators were actually given a 40-
cent-per-hour raise.
their union activities were under surveillance. Richardson's
motivation remains unknown as he did not testify at the
hearing.
Review of case law concerning the speaker's intent or
motive when making statements which arguably constitute
violations of Section 8(aXl1) reveals that, in circumstances
such as are presented here, the test as to whether employer
statements are violative of Section 8(aXl) turns not on the
motive for the conduct, as in a discriminatory discharge
case under Section 8(aX3), but on its reasonable effect on
the employees. Impact Die Casting Corporation, 199 NLRB
268, 271 (1972); and N.LRB. v. Illinois Tool Works, 153
F.2d 811, 814 (C.A. 7, 1946). In agreement with General
Counsel, I find Robb and Hurt could have reasonably
concluded, upon hearing Richardson's comments, that
Respondent was going to punish them for engaging in
union activities and that Richardson gave them the
impression their union activities were under surveillance.
Accordingly, I find the comments violated Section 8(aXl)
of the Act.
On August 17, Richardson spoke with employee All-
bright. During the conversation, Allbright observed some-
one was telling management what was going on in
connection with the Union. Richardson thereupon in-
formed Allbright that employee Jim Bowlin was going to
the White House and giving all the names of people who
had signed cards so the White House knew who had signed
and who hadn't. Richardson also informed Allbright that
he had attended a supervisors' meeting earlier and that
Bowlin had been the only employee in attendance. At or
near the same time, Allbright told Richardson the employ-
ees had been able to sign up all of maintenance, but were
having trouble signing up the operators and getting 51
percent of all the employees signed up. Richardson stated
the reason the operators wouldn't sign was the Company
had offered them a 40-cent raise.6 I find that Respondent,
through the above-described conduct of Richardson,
sought to create the impression that the employees' union
activities were under surveillance and I find that it sought
to deter union activities among the operators by indicating
they were to receive a 40-cent-per-hour raise. Both actions
constitute violation of Section 8(aXl) as alleged.
On August 20 Richardson and employee Trojanowski
discussed the Union and Richardson informed the employ-
ee "John, you'll all get fired ... you're going to get fired,
just as sure as the world goes around . ... They're going to
run everybody out and bring in contract maintenance." I
find that Respondent threatened Trojanowski and other
employees by the above-described conduct and therefore
violated Section 8(aXl) of the Act. I further find that no
evidence was offered at the hearing to prove the allegation
set forth in paragraph 8(f) of the complaint and, according-
ly, I shall recommend dismissal of the allegation.7
Supervisor Richardson had a similar conversation with
employee James Ellis around August 23. He told this
employee that Bowlin was a company snitch and that he
ran to the White House with all information he had
I Par. 8(f) alleged that Richardson "on or about August 20, 1976,
threatened an employee by telling him that he had seen Respondent
terminate employees once at another location as a result of the Union, and
that Respondent could do it again at its Pasadena, Texas, facilities."
396
BIG THREE INDUSTRIAL GAS & EQUIPMENT CO.
concerning the Union. Richardson suggested the employ-
ees drop him or give him the "silent treatment" if he came
around. He went on to say that Supervisor Ray Osborn had
promised Bowlin a white hat if he would give the office any
information he had regarding the Union. I find that
Respondent sought, through this conduct by Richardson,
to create an impression that the employee's union activities
were under surveillance and that such conduct violates
Section 8(a)(1) of the Act.
3. By Maintenance Supervisor Ray Osborn
Approximately July 15, Osborn approached employee
Trojanowski and asked him how everyone's pulse was
beating. The employee replied "not too good, before you
know it there's going to be a bunch of people talking union
around here." Osborn replied, "Oh, you damn old Pollock,
you know good and well everyone's talking union already
- it's nothing new." Trojanowski testified that Richardson
thereafter told him if the union talk kept up they were all
going to get fired, asking what good a bunch of supervisors
would be to Big Three if they didn't have anyone to
supervise. I find that Respondent unlawfully interrogated
an employee and unlawfully threatened to discharge
employees if they continue their union activities through
Osborn's remarks, and find that such conduct violated
Section 8(a)(1) of the Act.
During the week of July 22, Osborn conversed with
employee James Ellis. At that time, Osborn stated if the
employees didn't forget about the union bit, they were
going to run off the whole damn bunch, especially if they
continued to get operations people to sign cards. Thereaf-
ter, Osborn told the witness that the jobs of him and his
buddy were secure, but that Respondent intended to get rid
of five "bad apples" named as Mike Robb, Thomas Hart,
Bill Fairless, John Trojanowski, and Mike Allbright. I find
that Osborn's comments threatened employees in violation
of Section 8(a)(l) of the Act.
4. By Maintenance Supervisor Albert Lindsay
Employee John Trojanowski visited Supervisor "Chief'
Lindsay at his trailer on June 29. During the conversation
between the two, Lindsay commented on the union talk
that was occurring at the plant and informed Trojanowski
that the Union was a good way for all of them to get fired.
He referred to a situation at Respondent's Beaumont plant
and said, "It happened there, and it will happen here
too. ... The old man will just run you all off. He'd close
the plant down if he had to before he would go Union."
Trojanowski testified he understood the reference to the
"old man" to be a reference to H. K. Smith, Respondent's
chairman of the board. I find that Respondent threatened
employees with discharge if they engaged in union activity
through the above-described comments and find that such
conduct violated Section 8(a)(1) of the Act.
Subsequently, around July 15 Lindsay had a conversa-
tion, much like the one set forth above, with employee
I Other meetings were held, with about the same number of employees
attending and those meetings were conducted in much the same manner as
the meeting under discussion.
9 Robb placed the conversation as having occurred on July 30 and
Thomas Allbright. "Chief' told Allbright he had better
leave the Union alone because he had seen it trying to get
started in the Beaumont plant and there was a layoff.
Lindsay went on to say people would be called in from
other plants to run the operations part of it (Bayport plant)
and outside contractors would be called in to do the
maintenance work. Lindsay concluded saying he had
better leave it alone or he'd run off the whole maintenance
crew there and do the exact same thing. Allbright testified
he understood Lindsay to be predicting what H. K. Smith
would do. I find that Respondent unlawfully threatened
employees for engaging in union activities through the
above remarks and that such conduct violated Section
8(aX)(1) of the Act.
5. By General Manager Sid Peters
Some 2 weeks after the employee union activity began in
earnest, General Manager Peters decided to see what he
could do about ascertaining and curing the matters which
were bothering employees. Thus, on July 26, he held a
meeting in the conference room at the White House, where
some 20 employees were summoned and remained for
about 4 hours.8 Peters indicated to the employees that he
wanted to bring them back together; that he felt they had
some problems they needed to work out. Thereafter the
gripes and complaints of the employees were solicited and
the noteworthy ones were put by Peters on a blackboard.
Matters mentioned included a new shop, a decent lunch
area, and hospitalization insurance. At the conclusion of
the meeting, Peters indicated he would take some of the
complaints up with Respondent's corporate headquarters
and would report feedback to the employees.
On August 2, employees Robb and Hurt sought out
Peters. Hurt had laid the groundwork for the ensuing
conversation several days earlier by telling Peters his
meetings with the employees had not been well received;
that they wanted quick action and felt they were being
messed around by the Company. Hurt testified that he and
Robb approached Peters on August 2 because they had
been unable to get 51 percent of the employees to sign
union cards and they wanted to get Peters to agree to an
interim measure which would permit them to continue to
organize. Hurt asked Peters what he thought of a company
union at the outset of the conversation and Peters indicated
he didn't think a company union would work. Hurt then
suggested a committee and Peters' reaction was that
probably wouldn't work either but if a committee was used
it would have to be small. When it appeared Peters was not
going to make any definite commitment, Robb told him
"Sid, you know we hold the cards?" Peters then asked the
employees if they could cool things down in the field and
get them to back off the Union. Hurt and Robb indicated
they could so as Peters suggested.9
The complaint alleges, and I find, that Respondent
violated Section 8(aX)() of the Act by attempting to cause
employees Hurt and Robb to "cool down" the union
activity of employees until Peters and Respondent could
testified Peters rather than Hurt suggested a committee. Hurt's recollection
was much better than Robb's and Hurt impressed me more while on the
witness stand. I credit Hurt's version.
397
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eliminate the source of some of their discontent. I further
find that Peters' conduct of meetings with employees,
under the circumstances, including his request that Hurt
and Robb "cool down" the union activity, was violative of
Section 8(a)(1) of the Act, as Peters was obviously
promising employees additional benefits and improved
working conditions to cause them to cease their union
activity.10
F. The Suspensions of William Fairless and John
Coryell
William Fairless and John Coryell were suspended for 3
days without pay on August 18. Respondent contends it
suspended these employees because they knowingly violat-
ed a company rule by leaving the plant for dinner without
clocking out. General Counsel asserts the action was
motivated, in part, by the union activities of the employees.
I find no violation in connection with these suspensions for
the reasons set forth below.
John Coryell was hired by Respondent as a millwright at
$7.20 per hour on March 23, 1976. Osborn was his
supervisor. William Fairless was hired approximately 3
weeks later, on April 12. He was also hired as a millwright
at $7.20 per hour. Fairless was originally supervised by
"Chief" Lindsay, and later by Osborn. Although there was
considerable overtime work at the plant for maintenance
employees during the entire period of their employment,
neither of these employees liked overtime work. Due to the
fact that they frequently refused to work overtime, Roland
Borey, the plant maintenance superintendent, suggested in
June or early July that each of them find another job where
they would be required to work only 40 hours per week.
Coryell and Fairless both signed union authorization
cards on July 15. They engaged in no other union activity.
Neither was particularly friendly with other employees
because the employees were unfriendly towards them, as
they refused to perform what others felt was their fair share
of the overtime work.
In addition to the fact that they refused to work overtime
when possible, Coryell and Fairless ate their lunch off
company property each day.
Maintenance Superintendent Borey testified he had been
informed in March that many of the maintenance employ-
ees were leaving the plant for lunch without clocking out
(and back in on returning), and that they were taking
longer than the time allowed for lunch. Accordingly, he
caused a notice to be posted at the timeclock on March 22
providing:
At any time an hourly employee leaves the plant, he or
she must punch out, and punch back in upon returning.
This includes (I) during his regular shift, (2) on
overtime for personal reasons, or (3) during lunch-
breaks. This is necessary for the safety procedures of
this plant and the employees. Thank you for your
cooperation.
10 In brief General Counsel urges such a finding although the violation
was not alleged in the complaint. The issue was fully litigated without
objection at the hearing and does not materially vary from the complaint
allegations. Accordingly, I conclude such a finding is clearly appropriate.
California Bake-N-Serv Ltd., 227 NLRB 548 (1976), and cases cited therein.
The record reveals that Coryell and Fairless as well as
other employees clocked in and out at lunchtime as
directed for a short time after the notice was posted.
Thereafter the more skilled craftsmen ignored the notice,
leaving for meals without punching out or in, while their
helpers normally clocked out and in.
On August 17 the employees in the maintenance
department, including Coryell and Fairless, were required
to work overtime. It is undisputed that assistant mainte-
nance superintendent informed them during the afternoon
that no one was to leave the plant that evening; that they
were to eat on the premises.
However, at approximately 6 p.m., Coryell and Fairless,
who testified they did not like the TV dinners served by
Respondent to employees working overtime, left the plant
without clocking out and returned from their dinner at
approximately 6:40 p.m. Supervisor Richardson observed
them leave and upon their return they were summoned to
Park's office where they were informed they had been
signed out at 6 p.m. - to return at 8 a.m. the following
day.
The same evening, Lee Thomas Judd, another mainte-
nance employee, left the plant for approximately 25
minutes to eat at his home. He did not punch out or punch
in upon his return. He credibly testified that no supervisor
mentioned the situation to him that night, but Richardson
came to him the following day, and said, "Lee, don't leave
the plant any more without punching out.... Don't
worry about it though, we're not after you." Judd had not
signed a union card and, as indicated hereinabove,
Assistant Maintenance Superintendent Park and, presum-
ably, Richardson were aware of this.
On the morning of August 18, Coryell and Fairless
reported to the maintenance office at 8 a.m. Alexander, the
personnel manager, Richardson, and Borey were in the
office. Borey informed the employees they had violated a
company rule by failing to clock out when leaving the plant
the evening before and asked if the employees knew this.
They indicated they did and were suspended for 3 days
(August 18, 19, and 20) without pay. They were asked to
sign completed forms entitled "Notice of Personnel Record
Entry" which documented the rule, the infraction, and
noted the punishment."
General Counsel's argument that Coryell and Fairless
were suspended for discriminatory reasons is persuasive if
the doctrine of respondent superior is utilized to the fullest
extent. The picture which would evolve is that Respondent
was aware that Coryell and Fairless had signed union
cards; it was aware that two union adherents and one
nonunion employee violated the clock out-in rule on
August 17, and it punished the union adherents and
refrained from punishing the nonunion employee and told
him Respondent wasn't after him. The difficulty with this
argument is the fact that the record does not reveal that
Borey, the man who decided to discipline Coryell and
Fairless, knew that Judd had left the plant without clocking
out or in on return on the evening in question. Due to the
" The forms both indicated the employees had been previously warned.
There was a dispute as to whether the warning came orally from a supervisor
or via the notice posted at the timeclock. In my view, the dispute need not
be resolved as both employees admitted they were aware of the rule.
398
BIG THREE INDUSTRIAL GAS & EQUIPMENT CO.
fact that Richardson was close to the employees and kept
them informed as to what was going on in the White
House, I seriously doubt that he made Borey or Park aware
of Judd's actions on August 17. 1 am not disposed to infer
that he did. Thus, I am convinced that the issue presented
with regard to the suspensions is whether Respondent can
discipline known union adherents when they knowingly
violate a company rule. The answer, of course, is that
participation in union activity does not insulate an
employee from discipline or discharge for misconduct in
connection with his work. Considering all the circumstanc-
es, I find General Counsel has failed to prove by a
preponderance of the evidence that Coryell and Fairless
were suspended for discriminatory reasons. Accordingly, I
shall recommend dismissal of those allegations of the
complaint which refer to their suspensions.
G. The Alleged Discriminatory Discharge of 34
Employees on August 25
On August 25, Respondent discharged all of the
employees in its maintenance department at the Bayport
plant. It contends this action was taken solely to remedy a
disruptive situation which then existed at the plant.
General Counsel contends the reasons assigned for the
discharges are pretextual and that Respondent was motiva-
ted to discharge the employees by their union activities. A
summary of the evidence relating to the discharges and the
manner in which they were effectuated is set forth below.
A few remarks should be made to explain the setting in
which the layoff occurred. Thus, the union organizational
campaign was initially quite successful, particularly in the
maintenance department, and, as revealed by the record, at
least 33 cards were signed by employees by July 21.12 The
campaign was impeded severely by Respondent's instanta-
neous opposition, most of which was unlawful. Conse-
quently, by early August the principal union adherents,
Robb and Hurt, who recognized the difficulty they would
experience in obtaining majority support of the hourly
employees, attempted to get Respondent to agree to a
lesser form of representation - a company union or a
committee. Respondent, on the other hand, was seeking to
stop the campaign by engaging in the unlawful activity
described above. With matters at somewhat of a stalemate,
acts of violence, threats, and disruption were experienced
at the plant and elsewhere.
The first series of incidents involved machinery in the
plant. Plant Manager Beville testified a 2- by -4 was
jammed in a water pump in July or August resulting in
repairs which he estimated at a cost of $1,200 or $1,300.
Next, the internals of a boiler were ripped out in August,
with repairs costing $2,000 to $3,000. Thereafter, three
parts to a turbine, then disassembled and under repair by
the maintenance department, were missing. One part, a
12 G.C. Exhs. 2-5. 7, 9, 11, and 13-38. The latest date on cards admitted
in evidence was July 21, 1976. Five cards signed by production employees
still employed by Respondent at the time of the heanng were not placed in
the record.
a3 Respondent has a written bomb threat procedure in the record as
Resp. Exh. 8. It contains instructions regarding report of threats to police.
instructions concerning the manner in which such calls are to be handled.
and instructions regarding personnel actions including search methods.
thrust ring, was never found and machining of a new part
cost Respondent several thousand dollars.
On August 19, the incidents experienced became more
severe. At approximately I a.m. on that date, Supervisor
Richardson received an anonymous telephone call during
which his life was threatened. Shortly thereafter, three
shots were fired at his house and later investigation
revealed three 38-caliber bullets in the roofline of his
house. Additionally, both of the gas tanks of Richardson's
private automobiles were sugared the morning of August
19. Plant Manager Beville testified the incidents were
reported to him after Richardson came to work on the date
in question.
At 8:30 p.m. on August 19 the first of a series of bomb
threats, which were to cause consternation at the Bayport
plant until 6 a.m. August 20, was received by Respondent.
Duwayne Harman, a temporary supervisor at the plant,
answered the phone and an anonymous caller stated:
Listen close, motherfucker, and listen close to me. You
Beville, and you Durbin, there's a bomb set to go off
now. Get your ass out.
Harman reported the threat to his supervisor, Norman
Dunnham, who in turn called Plant Manager Beville. At
the time some six of Respondent's maintenance men, led
by Hurt, some Brown & Root maintenance personnel, and
the 4 p.m. - 12 midnight production employees were
working. Pursuant to Respondent's bomb threat proce-
dure,13 police and fire units were called, and nonproduc-
tion employees, including the maintenance force and
transportation employees, were evacuated to the gate area
of the plant. The threat was investigated by the Harris
County sheriffs office and search of the plant by plant
personnel and the authorities failed to reveal the presence
of any explosive device.1 4 Respondent's maintenance crew,
with exception of Hurt, clocked out and went home at 9:30
or 10 p.m. Hurt remained to assist in the search for a bomb
until approximately 11 p.m.15 At the time of the hearing,
the sheriff's investigation file was still open as the caller
remained unknown and no arrest had been made. Mainte-
nance work was interrupted by the bomb threat, but
production work was not.
Later in the evening on August 19, Beville's wife received
a phone call at their home at approximately 10:30 p.m.
Mrs. Beville testified the caller was anonymous and the
conversation was as follows:
Caller: Is Mr. Beville there?
Witness: Who's calling?
Caller: There's a bomb going to go off at 6 o'clock
tomorrow morning. Make sure his ass is out there.
Mrs. Beville immediately reported the call to her hus-
band, who was still at the plant. As the plant was then
14 The report prepared by the sherifls office, which merely documents
the occurrence, appears in the record as Resp. Exh. 2.
s1 Beville testified he didn't think Hurt assisted in the search. I credit
Hurt because he left an hour after the other maintenance employees and
Beville didn't appear to have actual knowledge as to Hurt's activities.
399
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operating pursuant to its bomb threat procedure, this
threat simply prolonged the situation that then existed.
The record reveals that at least two additional bomb
related calls were received at the Bayport plant during the
early morning hours on August 20. Thus employee Jeff
Gerber testified he received and taped two calls made by
an unknown person. The first was as follows: 16
Caller: The second one will go off at 3 o'clock sharp.
Gerber: What was that?
Caller: The first one was funny. The second one will
go off at 3 o'clock sharp.
Gerber: 3 o'clock sharp?
Caller: Right here.
The second call was received about an hour after the first.
It was as follows:
Caller: Let me speak to A. J. Fagan.
Gerber: Gerber speaking.
Caller: You have about ten minutes.
Gerber: Where is it?
Gerber reported both calls to his supervisor, and Respon-
dent's bomb alert procedure, which was already in effect,
was continued. The record fails to indicate whether the
maintenance employees who worked the 12 midnight to 8
a.m. shift were evacuated after Gerber received the above-
described calls. Respondent's production employees con-
tinued to work.l7
The final anonymous call during the 24-hour period
under discussion was made to Marjorie Borey, Roland
Borey's wife, at 8 a.m. on August 20. When she answered
the phone at her home on that occasion, an unknown
person said calmly and deliberately "tell him to be careful.
Be careful." Mrs. Borey reported the call to her husband at
the plant immediately.' 8
Beville testified that the bomb threats experienced on
August 19 and 20 caused Respondent to add an additional
Burns security guard to each shift immediately. Additional-
ly, Respondent posted a notice at the plant which stated
that utterance of bomb threats constituted violation of the
Hobbs Act (Resp. Exh. 10).
Employee K. O. Dreymala, a class B operator, testified
that upon hearing of the bomb threats received at the plant
on August 19, he felt on August 20 that he should bring to
Plant Manager Beville's attention a situation in which he
was involved earlier. Thus, on August 20, Dreymala
informed Beville that earlier in the summer he was policing
a work permit requiring employees to wear lifelines while
replacing fan blades on top of a tower in the plant.
Maintenance employee Allbright was in charge of the
operation and maintenance employees Dill and Hurt were
working with him. None wore lifelines as required and
Dreymala told them to correct the situation, and they put
the lines on. Feeling the employees might take the lines
back off, Dreymala went half way down the tower and then
'6 The record does not clearly reveal the time this call was received. The
witness described an alleged call which was received at approximately 12:30
a.m. and Respondent's log reveals the call was received at 2 a.m.
l? Although I have no reason to disbelieve the testimony regarding the
bomb threat made to Mrs. Beville and the two calls made to Gerber during
ascended again and hid where he could observe. The
employees had removed the life lines so he reported them
to his supervisor, who in turn contacted their maintenance
supervisor. The next day, after the three maintenance
employees had been reprimanded for their conduct,
Dreymala went to the top of the tower in connection with
another hazardous work permit. He informed Beville that
on the second occasion Hurt, Allbright, Dill, Randal Bell,
and Mike Robb surrounded him on top of the tower and
told him they had gotten in trouble over the incident the
previous day, and while standing on the edge of the tower
told him if he had anything further to say about a violation
of a permit he had better come to them or else.
The above-described events, according to Beville, led
him to prepare a memorandum which he delivered to his
boss, Glen Wheat, Respondent's vice president in charge of
plant operations, on August 23. Beville testified he gave the
memorandum to Wheat, explained he felt the observations
therein indicated the maintenance department personnel
were the source of the difficulties recently experienced, and
he recommended that the Respondent's maintenance
employees be terminated and that maintenance at the
Bayport plant be subcontracted to Brown & Root. The
memorandum, which was admitted in evidence as Respon-
dent's Exhibit 9, is set forth in its entirety, minus pencil
notations:
Events prior to 8-19-76 bomb threat directed towards
Big Three:
I. Maintenance Supervisor, John Richardson, was
threatened by phone at approximately I AM.
2. John Richardson's house was shot three times by
a .38 caliber slug.
3. John Richardson's personal automobiles (2)
were sugared (gas tanks).
4. Maintenance Manager, Roland Borey, was
threatened by phone through his wife. 10 AM (watch it)
Possible suspects responsible for above are William
Fairless and John Coryell.
Possible reason was these two men were suspended
for three days for disciplinary action by Roland Borey
and John Richardson. There is no definite proof of this.
It is my understanding that John Richardson's incident
was handled by the Baytown Police.
The next event was the bomb threat to Big Three
Bayport plant at approximately 8:45 PM. This call was
received by acting Shift Supervisor, Duwayne Harman.
The voice was a deep male voice with no noticeable
accent. The message was,
"Listen to me close, mother fucker, close. You,
Durbin, you Beville, there is a time bomb set to
go off. Get your ass out now."
At 10:30, my home was called (Tom Beville), at
which time my wife answered the phone. A male voice
asked for Mr. Beville (pronounced wrong), to which my
wife replied, "Who's calling?", again asked for Mr.
the morning of August 20, it should be noted that no evidence was offered to
show that Respondent reported these alleged threats to the police pursuant
to its bomb threat procedure.
18 A second anonymous call was received at the Borey home on the
evening of August 20. The callerjust laughed and hung up.
400
BIG THREE INDUSTRIAL GAS & EQUIPMENT CO.
Beville, at which my wife replied, "He's not available."
A voice then said, "Tell him the plant is going to blow
up at 6:00 in the morning. Tell him to get his fat ass out
there." and then hung up.
As per our safety procedure, I was immediately
notified by my Shift Superintendent, Norman Dunnam.
Mr. Chuck Curtis, Driver Trainer, immediately execut-
ed our bomb threat procedure. The Harris County
Sheriffs Department was notified, the Pasadena Fire
Department was notified, plant supervision was noti-
fied, and evacuation of all unnecessary personnel was
made. When sufficient supervision arrived, a three and
one-half [hour] search was made of the plant. There
were no findings. Normal operation was resumed at
approximately 12:00 midnight.
A good majority of our plant maintenance at this
time felt that it was unsafe for them to continue to
work, at which time I consented for them to leave. The
majority of plant operators remained as did the
majority of the contracted Brown & Root personnel.
Big Three plant maintenance, except for Talmadge
Smith, A.J. Feagin, and several Big Three laborers, left.
At this time, the remaining plant personnel were
informed of the 6 AM bomb threat and were advised
we would take the same procedure of the 8:45 PM
bomb threat.
At 2:10 AM another bomb threat was received by
Jeff Gerber. This bomb threat was recorded and is on
tape. Briefly, it stated that a bomb would go off in the
plant at 3 AM. At 2:50 AM another call was received
and recorded. It said that we had ten more minutes
before it would go off. At this time we proceeded with
the same procedure used at the 8:45 PM threat. No
other bomb threats were received after 2:50 AM.
During the early AM, I played the last two tape
recordings of the bomb threats to various plant
personnel in an attempt to identify the caller. The
following facts became available:
1. Kale Dreymala made possible identification
of this voice from certain terminology used in the
first taped threat as the voice of Mike Robb, a
maintenance mechanic. He recalled an incident
approximately four to five months previous where
Mike Robb, Jim Bowlin, Bob Dill, Tom Hurt and
Fred Walker failed to comply with a HWP
permit. At that time he requested them to comply,
which they failed to do and he then reported them
to his immediate supervisor. The following night
in the same area and approximately same person-
nel led by Jim Bowlin and Mike Robb surround-
ed him on top of # I cooling tower. They told
him in effect, anytime he had any complaints they
had better come to them and not to supervision.
During this conversation, terminology that Mike
Robb used was similar to the terminology of the
first tape recording (Right here).
2. Albert Lindsey, when he was requested to
listen to the tape, made possible identification of
Mike Robb.
3. Joe Park, when he listened to the tape,
identified the voice as Jim Bowlin.
4. Mike Robb and Jim Bowlin were on duty
until 10 PM on the 19th, at which time they left
the plant in a 1967 white pickup, license
#GH9800. Shortly thereafter, they were ob-
served driving back and forth in front of the plant
by the Burns guard service. Several of Burns
detectives followed the white pickup which finally
stopped on Fairmont Parkway. Burns detectives
observed from a distance and radioed their
dispatcher to notify the Harris County Sheriffs
Department. When the Harris County Sheriffs
Department arrived, the people were gone. At
approximately 6:30 AM this vehicle reappeared
in the parking lot, driven by Mike Robb,
accompanied by Jim Bowlin. Jim Bowlin went
into the plant for approximately ten to fifteen
minutes then he returned to the pickup. While
Bowlin was out of the pickup Harold Riese,
Safety Supervisor, asked Mike Robb if he had
driven by the plant several times and he told him
that they had driven by the plant. They left
around 10:00 PM and had gone to get a few beers
to have a party. He said they were driving
someone home and his truck vapor locked and
that they had to walk to get another vehicle. I
informed him that the Harris County Seriffs [sic]
Department were looking for a truck with his
license number. Jim Bowlin came out of the plant
and got into the truck. They informed Harold
Riese they would not stay and search for a bomb
last night and that is why they left. (Possibility
they could have made the 10:45, 2:10, and 2:50
phone threats.) After the conversation they left
the parking lot at a high rate of speed.
Beville, who was operations manager at the Bayport
plant for some 9 years before he was elevated to plant
manager during the first week of August, denied that union
activities of employees had anything to do with his
recommendation that the maintenance crew be terminated.
To bolster this denial, Beville testified he was on vacation
from July 8 or 9 to August 2; that he was unaware of any
union activities at the plant during August; that none of his
supervisors had reported who had signed cards; that he
was unaware of who had signed cards; and he specifically
did not know before they appeared at the hearing that
Coryell and Fairless had signed cards. Glen Wheat, who
testified he called the Bayport plant every morning to
obtain a status report from his plant manager, did not
indicate the extent of his knowledge of union activities at
the plant, if any, and failed to mention the Union as being
a matter which was discussed at the corporate offices at
any time.
Beville testified he recommended that Respondent's
maintenance force be replaced because of the bomb
threats, and the threats or violence experienced by
supervision, including John Richardson, Borey, and him-
self. He attributed these acts to persons in the maintenance
department because the bomb threats started immediately
after two maintenance employees were laid off (Fairless
and Coryell); Richardson, who was threatened, had his
house shot at, and auto gas tanks sugared, was employed in
401
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the maintenance department; and other supervisors threat-
ened were from the maintenance department.
After Wheat received Respondent's Exhibit 9, complete
with Beville's recommendation that Respondent terminate
its maintenance employees, he indicated a meeting with
undisclosed persons was held at Respondent's Houston
headquarters the morning of August 24. Thereafter, Wheat
contacted Beville and arranged a meeting at the latter's
home for that evening. The meeting at Beville's home was
attended by Sid Durbin (in charge of operations at Bayport
plant), Skip Beuttner (position unknown), Dowman (Re-
spondent's director of personnel), Glen Wheat, and Beville.
They discussed the matters in Respondent's Exhibit 9 and
reportedly sought alternatives to Beville's recommendation
that the situation should be cured by terminating Respon-
dent's maintenance force. No alternatives were forthcom-
ing.19
The next day, August 25, Wheat attended a meeting at
Respondent's Houston office. Present were H. R. Smith,
chairman of the board, Bill Borey, Charlie Glasier, Bob
Moore, Jerry Dowman, Sid Peters, and Beville - by
speaker phone. At this corporate meeting, Beville's recom-
mendation was adopted.
Although the decision to terminate the Bayport mainte-
nance crew was made early on August 25, Respondent did
not effectuate the decision until approximately 10:30 p.m.
because it wished to announce the decision at a time which
would minimize the possibility of sabotage by employees in
the maintenance department. Accordingly, commencing at
approximately 10:30 on August 24, Dowman and Bayport
Plant Personnel Director Alexander called maintenance
employees and read them the message set forth in
Respondent's Exhibit 5 which provides in pertinent part:
TO ALL EMPLOYEES
Effective midnight, August 25, 1976, Big Three Indus-
tries, Inc., is discontinuing all maintenance shifts.
Maintenance will be subcontracted because Big Three
has determined this is a safer, more reliable, more
efficient and flexible way to accomplish the necessary
maintenance.
You will be paid for all hours worked through August
25th, plus 16 hours for Thursday and Friday, August
26th and August 27th, plus 40 hours pay in lieu of
notice.
GROUP I
Arrangements have been made for you to report to the
Bayport Guard Building 9 AM - Thursday - Aug. 26
where you will be met and given your paycheck for all
monies due. You will also be given the opportunity to
19 Roland Borey, who was in charge of the maintenance department at
the Bayport plant, was apparently not invited to attend the meeting
although his counterpart, Durbin, who was in charge of the production
department, was in attendance. The record reveals Borey was available, but
fails to reveal why he was not invited to this important meeting which
concerned his subordinates.
20 Mechanically, Respondent divided the maintenance department into
three groups. Group I was told to come to the plant for final processing at 9
pick up your personal belongings and tools from the
Plant area at that time. You will be expected to turn in
your Identification Badge prior to receiving your
paycheck.2 0
Both Alexander and Dowman testified that when stating
the reasons for termination they did not give any reason
except those stated on Respondent's Exhibit 5. If the
person they talked to asked questions not answered by that
document, they simply answered they did not know.21
To demonstrate the validity of its decision that its
maintenance employees were responsible for the predis-
charge acts described hereinbefore and that its decision to
subcontract the maintenance work was sound, Respondent
offered evidence relating to the postdischarge period. Thus,
employee Wayne Lamson, a salesman employed in
Respondent's sales office which is located outside the
fenced area of the plant, testified that on August 26 he
answered the phone at the office and an unknown person
stated "It's going up in 10 minutes." Lamson asked the
caller to repeat and the caller again said, "It's going up in
10 minutes." The call was immediately reported to the
employee's supervisor and the sales office was evacuated
for about 15 minutes.22 Between I and 1:30 p.m. on the
same day a second call was received at the sales office by
employee Allen Jones. On that occasion, the anonymous
caller said, "It's going up at 2:30." Asked to repeat, he did,
stating "2:30, 2:30, 2:30." This call was also reported to the
employee's supervisor immediately and the building,
housing some six sales persons, was evacuated for about
half an hour. The call was reported to the sheriff's office,
and the official report was placed in evidence as General
Counsel's Exhibit 46. No explosive device was found on
either occasion and no arrests were ever made in connec-
tion with the incidents.
Beville testified no bomb threats or other incidents of
threat or violence have occurred at the plant or among its
personnel since August 26.
With respect to the success or failure of the switch from
its own maintenance personnel (assisted by Brown & Root)
to a subcontract situation wherein Brown & Root accom-
plished all maintenance at the Bayport plant, the record
reveals the normal maintenance force contingent (all
inclusive) has been reduced from 73 employees as of
August 25 to 50 as of the time of the hearing, while
payments to Brown & Root have risen from an average of
$50,000 per month to $80,000. Additionally, Beville
testified that Respondent kept statistics measuring the
utility or reliability of machinery and the report for the
months of June, July, and August showed reliability of 91.9
percent, while the next report (for a period when Brown &
a.m., Thursday, August 26; Group 2 was to report at 2 p.m. on August 26;
and Group 3 was to report at 9 a.m., Friday, August 27.
21 While Alexander indicated that persons who were informed of their
termination at the plant were not given the "stock" message, the record
indicates nothing beyond the fact that they were terminated when they
appeared.
n The sheriffs office was called, but no report concerning the incident
was placed in evidence.
402
BIG THREE INDUSTRIAL GAS & EQUIPMENT CO.
Root was performing all maintenance) showed a reliability
figure of 96.2 percent.2 3
Analysis
Respondent asserted as an affirmative defense in this
case that it terminated the employees in its maintenance
department on August 25 because they engaged in
unprotected activity and/or it had reason to believe they
did. In my view, no evidence was offered at the hearing
which remotely tended to prove either assertion. In point of
fact, the only evidence bearing on the subject was
Respondent's Exhibit 9, which was not offered or admitted
in evidence to prove who committed the acts of August 19
and 20, and the testimony of employee Dreymala, which
did no more than demonstrate that several employees in
the maintenance department voiced dissatisfaction with the
way young Dreymala performed his duties. Accordingly,
Respondent's assertion that maintenance employees com-
mitted the August 19 and 20 acts or it had reason to believe
they did remains a bare assertion unsupported by any facts
whatsoever.
On the other hand, there is a virtual wealth of evidence in
this record which supplies an unlawful motive for the mass
discharges on August 25. As indicated above, the employee
organizers caused a large majority of the maintenance
employees to sign union cards during the month of July.
Through extensive interrogation of employees and surveil-
lance of their union activities, Respondent became fully
aware of the identity of the leading adherents and learned
who had signed cards by late July or early August. It was
fully aware of the fact that the union activity was localized
in the maintenance department and that, as of August 25,
the production employees had not wholeheartedly joined
the campaign. Contrary to Respondent's contention, the
union organization drive had not harmlessly run its course
by August 25. At the very least, the maintenance employ-
ees were then insisting on representation in the form of a
company union or an employee committee. Robb and Hurt
had put the latter proposition to Peters in early August and
they had not, by August 25, been given a reply. Thus, any
lull that existed in the union campaign had been caused by
Respondent and the record reveals it was merely tempo-
rary.
Ignoring the above facts, Respondent offered evidence
falling into three categories at the hearing to prove that it
lawfully discharged its maintenance force. It offered
evidence concerning alleged sabotage of machinery for the
dual purpose of casting suspicion on the maintenance
employees and justifying its layoff or discharge procedure,
i.e., calls to employees at their homes late at night and use
of security when they reported to pick up their checks and
personal belongings. Secondly, it offered evidence reveal-
ing the August 19 and 20 incidents to justify the decision to
discharge the maintenance force. Finally, it offered
evidence of postdischarge events and statistics to prove the
13 Cross-examination of Beville and Wheat by General Counsel revealed
the Bayport plant underwent a "turnaround,." defined to be a penod of
concentrated work on machinery to make it more relable and productive, in
September 1976. Admittedly, additional maintenance personnel are hired
for "turnarounds." Wheat admitted reliability would naturally be a lesser
percentage immediately before a "turnaround" than immediately afterward.
wisdom of its decision to terminate the employees in
question. Respondent would have me consider this evi-
dence in isolation thus causing me to conclude it had good
and valid reasons for discharging its maintenance force on
August 25. Respondent's position is unrealistic and
untenable.
The union situation was unresolved in August and I infer
that Respondent's top management remained concerned
with the union activity of the maintenance employees on
August 25. The inevitability of such concern makes the
testimony of Beville and Wheat exceedingly suspect.
Respondent would have me believe that despite repeated
threats to run off the maintenance force because of their
union activity, the union activity of these employees was
not a matter of consideration or discussion during meetings
which led to the decision to discharge them. I do not accept
this assertion. To the contrary, I find that Beville and
Wheat carefully avoided any mention of the union
activities of employees in connection with the August 25
terminations to mask the fact that those activities were a
motivating reason if not the sole motivating reason, for the
termination of the maintenance force.
General Counsel contends that the legal principals set
forth in N.LR.B. v. Burmnup & Sims, Inc., 379 U.S. 21
(1964); and Hyster Company, 195 NLRB 84 (1972), are
applicable in the instant case. In those cases the issues
concerned the legality of discharge of union adherents who
the employer reasonably believed had engaged in unpro-
tected activity. That situation is not presented in this case.
Instead, the situation here is more closely analagous to the
one before the Board in American International Aluminum
Corp., 149 NLRB 1205 (1964). In the latter case, the
employer had reasonable cause to believe that certain
employees had instigated and directed slowdowns. Rather
than terminate those involved in the unprotected activity, it
terminated the entire production crew, and thereafter
terminated its contract with their collective-bargaining
agent. As the motive for the termination of the employees
who had engaged in unprotected activity was tainted by
the unlawful intention to terminate the contract, the guilty
employees as well as the innocent were ordered reinstated.
Here, the situation differs only in that Respondent has
failed to prove that it had reasonable cause to believe that
members of the maintenance crew engaged in unprotected
activity. Respondent merely suspected some employees
may have engaged in unprotected activity and chose to
terminate all of them to end the union activity and to
possibly end the bomb threats and allied behavior.
The pretextual nature of the reasons assigned by
Respondent for the mass terminations on August 25 is
revealed in part by the fact that it terminated all the
maintenance employees rather than-just those it suspected
in connection with the August 19 and 20 activities.
Respondent knew that almost everyone in the maintenance
department had signed union cards and it suspected that
only a few employees in this department had been involved
This fact was borne out by reliability reports placed in evidence by General
Counsel which revealed: June 1976 - 90.6 percent; July 1976 - 90.9
percent: August 1976 - 94.3 percent; September 1976 - 98.4 percent
(turnaround month); October 1976 - 96.3 percent; and November 1976 -
93.9 percent.
403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the unprotected activity experienced. Beville and Wheat
both testified that unspecified alternatives to the mass
discharge of all maintenance employees were discussed.
One is left to conjecture as to whether termination of
suspects only was discussed, and one is left to conjecture as
to why all employees in the maintenance department were
discharged. In my view, these matters are left to conjecture
because they were discussed by top management and
revelation of the discussion would reveal the unlawful
motivation which served as a basis for the decision to
discharge the entire maintenance crew.
For the reasons stated, I find that Respondent was
motivated to discharge the 34 employees named in the
complaint on August 25 by its desire to chill the union
activities of employees at its Bayport plant. Accordingly, I
find that the discharge of these employees violated Section
8(a)(3) and (1) of the Act.24 Although some of the
employees were not shown to have engaged in union
activity, such proof is unnecessary as they were terminated
to end the union activity, California Bake-N-Serv Ltd., 227
NLRB 548 (1976), and cases cited therein.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent as set forth in section III,
above, occurring in connection with the operations de-
scribed 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.
CONCLUSIONS OF LAW
1. The Respondent, Big Three Industrial Gas &
Equipment Co., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Oil, Chemical and Atomic Workers International
Union, AFL-CIO, is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
3. By interrogating employees concerning their union
activities and sentiments and the activities and sentiments
of other employees; by threatening employees with
discharge or lack of promotion in order to discourage them
from joining or assisting the Union; by promising benefits
to employees in order to encourage them to forgo their
support of the Union; and by creating the impression that
the union activities of its employees were under surveil-
lance, I find that Respondent has violated Section 8(aXl)
of the Act.
4. By discharging the 34 employees named in the
complaint on August 25, 1976, I find Respondent has
discriminated in regard to the hire or tenure of employ-
ment, thereby discouraging membership in a labor organi-
zation in violation of Section 8(a)(3) and (1) of the Act.
24 Employees Judd and Burleson credibly testified Supervisor Richard-
son told them on August 26 that a reason for the terminations was the
Union. I do not base my finding of discrimination upon this testimony as
Richardson did not attend the meetings leading to the decision to terminate
and it appears his utterances constituted a statement of opinion rather than
known fact. Similarly, I have considered the credible testimony of employee
5. All other allegations of the complaint that Respon-
dent has violated Section 8(aX3) and/or (1) of the Act have
not been sustained by a preponderance of the evidence and
are to be dismissed.
6. Joe Park, Gerald Alexander, John Richardson, Ray
Osburn, Lynn Reddoch, Albert Lindsay, and A. J. Fagan
were, at all times material herein, agents of Respondent
and supervisors within the meaning of Section 2(11) of the
Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and that it take certain
affirmative action to effectuate the policies of the Act.
Respondent will be required to offer:
T.T. Aldridge
Thomas Allbright
James Bowlin
Jesse D. Burleson
Gary Carrico
John E. Coryell
Richard A. Dickman
James L. Ellis
William Fairless
Alan E. Fowler
Robert M. Fox
Kenneth Gatlin
Tom Hurt
Louren Lamb
Daniel G. Leggett
Jesse Lopez
Richard McBride
Steve McKnight
Robert Molis
Robert Rhoades
Richard Michael Robb
Charles Rodriguez
Talmadge F. Smith
Jeff Stevenson
Ricky Talent
J.K. Trojanowski
Fred Walker
Johnnie M. Williams
Marvin J. Williams
Steve Wylie
Ken Tadlock
Mike Vickery
Lee Judd
Floyd Williams
reinstatement to their former positions or, if those positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, dismissing, if necessary, anyone who may have
been hired to perform the work which they had been
performing; and to place said employees for whom jobs are
not immediately available pursuant to the above, on a
preferential hiring list according to seniority, to the extent
possible. Additionally, Respondent will be ordered to make
these employees whole for any loss of earnings they may
have suffered by reason of their unlawful termination with
backpay to be computed on a quarterly basis, making
deductions for interim earnings, and with interest to be
paid at the rate of 6 percent per annum. F W. Woolworth
Company, 90 NLRB 289 (1950); Isis Plumbing & Heating
Co., 138 NLRB 716 (1962), enforcement denied on
different grounds 322 F.2d 913 (C.A. 9, 1963).
Allbright which reveals Supervisor Park told him in September that he had
been instructed to refrain from recommending former maintenance
employees to other employers and Park informed Allbright that none of the
former maintenance employees would be permitted back in the Bayport
plant, even when working for a subcontractor. I make no findings
concerning this testimony as no violation was alleged.
404
BIG THREE INDUSTRIAL GAS & EQUIPMENT CO.
Upon the foregoing findings of fact, and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 2 5
Respondent Big Three Industrial Gas & Equipment Co.,
Pasadena, Texas, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union
activities and sentiments and the activities and sentiments
of other employees.
(b) Threatening employees with discharge or lack of
promotion if they engage in activities on behalf of the
Union.
(c) Promising employees benefits including wage increas-
es, or better working conditions to induce them from
becoming or remaining members of the Union or to refrain
from giving assistance or support to it.
(d) Creating the impression that the union activities of
employees are under surveillance to discourage member-
ship in or activities on behalf of the Union.
(e) Discouraging membership in or activities on behalf of
Oil, Chemical and Atomic Workers International Union,
AFL-CIO, or any other labor organization of its employ-
ees, by discharging employees because of their activities on
behalf thereof or otherwise discriminating in regard to the
hire or tenure of employment or any terms or conditions of
employment of its employees.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise 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 concerted activities for the
25 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the Act, or to
refrain from any or all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer the 34 employees named in the section of this
Decision entitled "The Remedy" immediate and full
reinstatement to their former positions or, if such positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights previous-
ly enjoyed, and make each of them whole for any loss of
pay due to the violation against them in accordance with
the manner set forth in "The Remedy."
(b) 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 Order.
(c) Post at its Pasadena, Texas, Bayport plant, copies of
the attached notice marked "Appendix."28 Copies of said
notice, on forms provided by the Regional Director for
Region 23, after being duly signed by the Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices 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 Regional Director for Region 23, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
:2 In the event 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board."
405