Boston Gas Co.

National Labor Relations Board - Board Decisions

Apr 21, 1977

229 N.L.R.B. 169 (N.L.R.B. 1977)

BOSTON GAS COMPANY
Boston Gas Company and Utility Workers Union of
America, AFL-CIO. Case I-CA-1 1284
April 21, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On December 21, 1976, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, the Charging Party filed
exceptions, a supporting brief, and a motion to
remand, and Respondent filed a reply brief.'
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.2
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 and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
t Respondent also filed a motion to strike certain portions of the
Charging Party's memorandum and brief.
2 The Charging Party has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
In addition, we deny the Charging Party's motion for remand and
Respondent's motion to strike.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: The
charge in this case was filed by the Union on December II1,
1975, and the complaint issued on February 6, 1976,
alleging that Respondent discharged and refused to
reinstate Gerald McCluskey as a residential salesman
because of his union activities. In its answer, Respondent
denies the commission of any unfair labor practices. A
hearing was held before me in Boston, Massachusetts, on
July 6, 7, and 8, 1976. At the conclusion of the hearing the
I Respondent has filed a motion to correct the official record of the
hearing. The motion is granted except for the correction requested at p. 20,1.
18. See p. 52. 11. 3-1 1. The motion is received in evidence as Resp. Exh. 20.
229 NLRB No. 25
parties waived oral argument. The General Counsel and
Respondent have filed posthearing briefs.'
Upon the entire record in this case, including my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Massachusetts corporation engaged in
the sale and distribution of natural gas and appliances for
residential and commercial use in and around Boston,
Massachusetts. Respondent has annual indirect inflow of
gas and other supplies in excess of S50,000 and has annual
gross revenues in excess of $250,000. Respondent admits
and I find that it is engaged in interstate commerce and
that it will effectuate the policies of the Act to assert
jurisdiction herein.
1. THE LABOR ORGANIZATION INVOLVED
Utility Workers Union of America, AFL-CIO, referred
to herein as the Union, is a labor organization within the
meaning of the Act.
Inx. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Since 1936 the physical and clerical workers of the
original Boston Gas Company have been continuously
represented by labor organizations. As the Company has
grown by acquisition and merger, other organized units
have become a part of Respondent's system. For many
years Respondent has employed a residential sales force
whose job was to sell and promote the use of gas and gas
appliances for residential purposes. Before 1975 the
residential salesmen were not represented by any labor
organization.
During the 1970's Respondent acquired additional gas
companies whose salesmen were represented and contin-
ued to be represented after acquisition. During the same
period shortages developed in the supply of natural gas,
and Respondent began to curtail its efforts to promote the
use of gas. As a result in January 1975 Respondent reduced
the residential sales force of its Boston division from 45
salesmen and 4 field supervisors to 20 salesmen and 2 field
supervisors, and in August 1975 Respondent laid off 4
more salesmen. These factors led to the ultimate organiza-
tion of the Boston division residential salesmen in 1975.
2. Gerald McCluskey's employment and union
activities
Gerald McCluskey started to work for Respondent in
1956 as a residential salesman. In 1965 he was promoted to
a residential sales supervisor's position, and he remained a
supervisor until the January 1975 layoff, when his supervi-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sory job was eliminated and he was returned to a
salesman's job.
McCluskey became interested in organizing the salesmen
while he was still a supervisor, and in 1974 he discussed the
possibilities on various occasions. Residential Sales Man-
ager Frank Noonan was aware of some of these discus-
sions.
In the spring of 1975, after McCluskey's return to a
selling job, he contacted one of the Steelworkers locals
which represented other employees of Respondent, and in
the early summer solicited union authorization cards for
that union. McCluskey did not attempt to conceal this
activity, and Respondent was aware of it. The Steelworkers
filed a representation petition but then withdrew it after an
issue was raised within that union over representing the
salesmen because they had crossed picket lines during a
1969 strike. Thereafter, McCluskey contacted the Utility
Workers Union and, with the assistance of some others,
solicited new authorization cards on behalf of the Union.
The Union filed a representation petition on September 24,
1975. An election was held on October 16, 1975, which
resulted in a unanimous vote in favor of representation by
the Union.
3. The investigation of McCluskey's commission
claims and his suspension on October 22
Gas appliances are sold by Respondent, dealers with
financing by Respondent, and dealers without any involve-
ment of Respondent. Sales of the latter kind are referred to
as outside sales. In order to meet complaints of outside
contractors that Respondent's salesmen are in competition
with them, Respondent gives commissions to its residential
salesmen for certain outside sales. At the times material to
this case, Respondent paid a $50 commission to a
residential salesman for an outside sale of a central house
heater in his territory, and it paid an additional $4
commission for a sale of a water heater made in
conjunction with a sale of a central heater. Salesmen
claiming commissions for outside sales completed outside
sale order forms and submitted them to their supervisor for
verification and approval. The supervisors operated on the
honor system and usually verified the sales orders without
any independent investigation as to the propriety of the
claim, although periodically supervisors made spot checks
of sales orders.
On October 21, 5 days after the representation election,
McCluskey submitted three outside sales orders for
approval by his supervisor, McGee. Each of the sales
orders was for a house heater and a water heater at three
different addresses in the town of Hull, Massachusetts.
On the previous day, McGee had received a telephone
call from plumber Sidney Selig who had requested a "log
number" to insure that Respondent would supply gas for a
central heating installation he was making. McGee testified
that Selig said nothing about a water heater as part of the
installation. McGee told McCluskey about the call and the
location of the installation. One of the three orders which
McCluskey submitted on October 21 was for that installa-
2 Much of the testimony as to the investigation and what it developed is
uncontradicted. I have found McGee, Noonan, and McGoldnck credible in
describing their findings. The major conflicts are between McCluskey and
tion. McGee testified that he became suspicious of the
three orders because Selig had not mentioned a water
heater to him in their telephone conversation on the
previous day and because other residential salesmen had
been complaining that McCluskey was winning sales
contests on the basis of commissions on outside sales of
water heaters. McGee testified that because of his suspi-
cion he decided to investigate the three orders personally.
McGee went to Hull and first visited 148 Atlantic
Avenue, which was a home owned by William Sorenson.
McGee found plumber Richard Chaplin there and asked
him if he was installing a water heater as well as a central
heater. Chaplin replied that there was an existing water
heater in the house and showed it to McGee. 2
McGee next went to 529 Nantasket Avenue, an address
which appeared on another of the sales orders. He found a
boarded up drugstore, found its owner, and learned that no
water heater was to be installed there. McGee then visited
126 Samoset Street, where the Selig job was located. There
he found that a central heater and a water heater both had
been installed.
On the basis of this information McGee called Sales
Manager Noonan and told him he had found some
discrepancies in McCluskey's orders and arranged for them
to meet with McCluskey the next morning. At that time
McGee showed McCluskey the orders for 148 Atlantic
Avenue and 529 Nantasket Avenue. McGee told McClus-
key that he had investigated the previous day, that there
was no water heater at Sorenson's, that no water heater was
going to be installed there, and that the other address was a
drugstore. McGee asked McCluskey for his explanation.
McCluskey replied that he had talked to Mrs. Sorenson
about the water heater and that she had said that she did
not want Chaplin to know that she was going to get a water
heater from Paul Smith, another plumber. McCluskey said
that he could not explain the drugstore, but that he knew
that the order pertained to a little white house.
Following the meeting Noonan went to Hull and tried to
recheck the Sorenson residence, but found no one at home.
He was unable to discover any explanation for the
drugstore address on the sales order. Noonan then returned
to Boston to the office of Michael McGoldrick, his
superior. From there, he telephoned Mrs. Sorenson who
told him that she had an existing water heater there which
she did not intend to replace. From the name McNair on
the order for 529 Nantasket Avenue and the telephone
directory, McGoldrick found that the correct address was
589 Nantasket Avenue, and he telephoned Mr. McNair
who told him that he was going to install a central heater
which was not yet on the premises and had no plans to
install a water heater.
Noonan and McGoldrick then discussed the situation
and decided to suspend McCluskey pending further
investigation.
Later that afternoon Noonan notified McCluskey that he
was suspended because there was no central heater or
water heater on the McNair job and no water heater on the
Sorenson job.
other witnesses. For reasons set forth below I have generally not credited
McCluskey.
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BOSTON GAS COMPANY
4. The further investigation and McCluskey's
discharge
Following the suspension Noonan and McGoldrick
decided to check all the other outside sales orders that
McCluskey had submitted since he returned to selling and
to make a random check on all the other salesmen. No
discrepancies were found in the sales orders checked for
the other salesmen, but the investigation of McCluskey's
sales orders turned up what Respondent contends were
further discrepancies at four additional locations. 3
McCluskey had submitted a series of sales orders for
central heaters and water heaters at 750 and 750A
Nantasket Avenue in Hull. He had claimed commission for
four central heaters and five water heaters at 750 and four
central heaters and four water heaters at 750A. In the
course of the investigation McGee and Noonan visited this
location and found a single structure containing eight
residential units. Four were reached through a front
entrance and four through a side entrance. Noonan
discovered that there had been a large oil burner in the
basement which had been used to heat all eight apartments
for a number of years and which was to be replaced by
eight separate gas heating units. Noonan also discovered
that in the building there was a single sewage line, a single
waterline, and a single gasline to nine gasmeters. Although
there were two separate entrances to the building, the only
number which appeared on it was 750, and there was no
750A anywhere on the building. Respondent contends that
the building constituted a single apartment house contain-
ing eight residential units, that as a result the sales for that
building constituted volume sales rather than residential
sales, and that McCluskey was not entitled to any of the
commissions which he had claimed for that address.
McCluskey had submitted a series of sales orders for six
central heaters and seven water heaters at 830 Nantasket
Avenue. When Noonan and McGee visited that location,
they found that it was an old structure which was being
renovated and that none of the water heaters were on the
premises. They spoke to the brother of the owner who told
them that he was unable to keep water heaters at the
premises for installation because it was not a secure place
and that they would be ordered the following spring.
Respondent contends that McCluskey was not entitled to
claim commissions on the water heaters for this location
because they were not on thejobsite.
McCluskey had submitted one sales order for 125
Samoset Street and five additional sales orders for 127
Samoset Street, dated September II and 19, 1975. Each
was for a central heater and a water heater. When McGee
and Noonan investigated these orders, they discovered that
all six pertained to the same address, 125 Samoset Street,
that there were six water heaters on the premises at that
time but that there were only four central heaters there.
They spoke to the owner who told them that the two
additional central heaters would be delivered but that he
" McCluskey made sales at a total of 31 locations dunng the penod he
served as salesman. At seven locations Respondent was unable to complete
the investigation.
4 Brown testified that when he first visited the premises he misread the
rating plate on the heater as 30,000 and later discovered that it was a 50,000
BTU heater. Brown testified that he would assume that a heater such as that
had run into zoning problems which had delayed the job.
Respondent contends that McCluskey improperly claimed
commission for the two central heaters because they were
not on the premises.
The last location at which a claimed discrepancy was
found was 25 Channel Street in Hull. McCluskey had
submitted a sales order for a Williams 70,000 BTU input
heater at that location. Walter Brown, a staff heating
engineer, visited that location during the investigation and
reported back that the unit installed there was not a central
heater but was a room heater with 50,000 BTU input and
that it was not a Williams heater.4 Respondent contends
that McCluskey was not entitled to claim any commission
on the heater installed at 25 Channel Street because
company policy did not allow for commissions to be paid
on outside sales of room heaters.
On October 28, Noonan reported the results of the
investigation to McGoldrick who decided to discharge
McCluskey. McGoldrick testified that his decision was
based on the discrepancies described above. 5
On October 31, McGoldrick, Noonan, McCluskey, and
Union Representative Madden met, and McGoldrick told
McCluskey that he was being discharged for misrepresent-
ing or falsifying sales. He and Noonan enumerated the
sales on which the charges were based. Madden told
McGoldrick and Noonan that he intended to investigate
the locations at which the falsifications were claimed and
asked whether Respondent had any written policy that the
men were supposed to follow as to when they could claim
commissions. McGoldrick told Madden that there was a
written policy, pursuant to which salesmen were required
to visit the site at which the equipment was to be installed
and see that the equipment was there before claiming a
commission. Madden requested a copy which he never
received.
5. The post-discharge investigation and
Respondent's refusal to reinstate McCluskey
Following this meeting, in early November Madden tried
to visit all the locations at which the discrepancies were
claimed. He was unable to enter 25 Channel Street, 148
Atlantic Avenue, and 589 Nantasket Avenue. At 125
Samoset, he observed that all six central heaters and water
heaters were at the site. At 750 Nantasket Avenue, he
observed the layout of the premises. At 830 Nantasket
Avenue, Madden spoke to the owner who told him that he
intended to install the water heaters but was having a
variance problem with the city which had delayed their
installation. The owner told him that he was afraid to store
the water heaters at the building site because of the
possibility of theft. Madden did not see the water heaters
described on the sales order submitted by McCluskey was a central heater
because of the indicated input.
5 McGee, who did not make the decision to discharge McCluskey, was
called initially at the hearing as an adverse witness and questioned about the
reasons for McCluskey's discharge. McGee testified that McCluskey was
discharged for falsifying orders and for no other reason.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but the owner told him that he had told McCluskey they
would all be installed. 6
After completing his investigation on November 10,
Madden met again with Respondent to report his findings.
In addition to reporting what is set forth above, Madden
asked whether anyone had spoke to Mr. Sorenson. When
Respondent's representatives indicated that they had only
spoken with Mrs. Sorenson, Madden reported that
McCluskey had told him that Mr. Sorenson was the one
who had informed him that a water heater was to be
installed and that McCluskey had told him that the town of
Hull had issued a permit for its installation.
Thereafter, on November 13 Noonan went to recheck
several of the locations based on what Madden had told
him. At 148 Atlantic Avenue he found that there was still
no new hot water heater present, and he checked
applications for gas permits at the town hall where he
found that Paul Smith had applied to install only a new
central heater in August, that the application had been
voided, and that a later application was made for the same
work by Richard Chaplin on October 25. Neither applica-
tion covered the installation of a water heater.
At 589 Nantasket Avenue, Noonan found a crated
central heater in the basement but there was still no new
water heater there.
Noonan visited 750 Nantasket Avenue again but found
nothing to add to his earlier observations there. At 830
Nantasket Avenue, Noonan found no new water heaters
on the premises and was told by the owner's brother that
they had not yet gotten around to ordering them.
At 125 Samoset Street, Noonan found that all six central
heaters were now present at the site. However, after
McCluskey's discharge, Respondent had discovered that
there had been a previous sale of central heaters for that
location 2 years earlier for which salesman John Kain had
claimed commissions. When Noonan visited the premises
on November 13, plumber Chaplin was there, and he
confirmed that the central heaters then being installed at
the house were those which had been sold to his father by
Kain 2 years earlier.
On December 1, Madden met with Respondent's
representatives again and asked whether Respondent
would reinstate McCluskey. The request was denied.
Thereafter, Madden filed the instant charge.
6 Madden also testified that the owner told him the water heaters were
there. I find this doubtful in view of his testimony that the owner also told
him why he was afraid to keep them there and Noonan's testimony that he
did not see them on a later visit. I do not credit Madden in this regard.
7 McCluskey testified that in 1974 in conversation with him and
salesman Joyce. Noonan told Joyce he might as well forget about organizing
a union because he was the last hired and would probably be the fifth to go.
McCluskey testified that Noonan told him he was skating on thin ice and
had better watch himself. McCluskey testified that on another occasion in
1974 Noonan told him that if a union came in it would be the end of the
salesmen because the Company did not need them. Noonan denied making
the latter statement but was not questioned about the former conversation.
McCluskey testified that a week after the January layoff, he asked
Noonan why he was reduced to a salesman and Noonan replied that
McGoldrick did not like him, he was never around the office, they knew
what McCluskey was about, and his activities were upsetting them. Noonan
denied making these statements.
McCluskey testified that at a meeting of all the salesmen about a month
B. Concluding Findings
1. Contentions
The General Counsel contends that McCluskey was a
known union adherent, that Respondent had animus
toward organization by the salesmen, that the reasons
asserted by Respondent for McCluskey's discharge were
demonstrably false, and that, even assuming arguendo the
discrepancies attributed to McCluskey existed, the dis-
charge nonetheless was for discriminatory reasons. Re-
spondent concedes that it was aware of McCluskey's union
activities and of the union activity of the salesmen
generally. It contends, however, that it did not entertain
any union animus; that in the case of each of the
irregularities attributed to McCluskey he had violated a
known company rule; that his discharge was in accordance
with the Company's usual disciplinary standards; and that
the General Counsel failed to establish that McCluskey
was discharged for discriminatory reasons.
2. Respondent's alleged animus
The evidence of union animus in this case is slight. The
General Counsel relies entirely on testimony of McCluskey
as to statements allegedly made by Noonan and McGee
showing hostility to the organization of the salesmen and
upon the argument that even assuming that Respondent
had no animus toward the organization of its blue collar
employees, its salesmen were viewed as part of manage-
ment who had acted as strikebreakers in the past and
whose organization Respondent had no reason to welcome
in the light of the major dislocations taking place among
them.
On the record before me it is striking that McCluskey's
testimony as to alleged antiunion statements made by
Noonan and McGee, as well as statements indicating
McGoldrick's personal hostility toward him, 7 are entirely
uncorroborated by testimony of any of the presently
employed or laid-off salesmen who testified, including
those who testified on behalf of the General Counsel.
Indeed, the only corroboration for McCluskey's testimony
comes from that of his supervisor, McGee, who testified
that he did make superficially threatening statements to the
salesmen but that they were made in jest as part of ongoing
banter between him and the salesmen, and that on other
occasions he expressed agreement with the salesmen's
after the layoff, where he crudely criticized a quota proposal made by
McGoldrick, McGoldrick told him that if he did not like it he might not be
around to see it. McGoldrick denied making this statement.
McCluskey testified that after the August layoff when he accused
Noonan in crude terms of taking pride in getting rid of all the salesmen who
had been represented by a union with other companies, Noonan replied that
McCluskey's name had been up for consideration also. Noonan testified
that he had possibly told McCluskey his name had been considered for
layoff because all salesmen had been considered but that he had no specific
recollection of the conversation.
McCluskey testified finally that at around this time when a number of
salesmen were gathered around his desk talking about an impending
meeting with a union representative, McGee told them there would be no
union meetings on company property or they would all be fired and asked
McCluskey why he did not take his severance pay and get out while he was
able. McGee conceded that he might have made the first statement in jest,
but denied making the second statement and testified that McCluskey was
not eligible for severance pay.
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BOSTON GAS COMPANY
effort to organize. Although McGee's testimony was also
uncorroborated by any of the salesmen, there is partial
corroboration in the fact that the union activities continued
openly in the office and in the presence of McGee despite
the alleged threatening statements made by him. There is
also corroboration for the Company's contention that it
entertained no animus toward the salesmen's organizing
efforts in the nature of the campaign which was run by
Respondent in the preelection period. No speeches were
made to the salesmen, and Respondent indicated opposi-
tion to organization in only a single letter in restrained and
dispassionate terms. Furthermore, in the period following
the January layoff when personal hostility was allegedly
displayed toward him, McCluskey requested special con-
sideration and treatment following his return to selling, and
he received it. For these reasons as well as my findings
below as to McCluskey's credibility with respect to other
aspects of his testimony, I have concluded that McCluskey
is not to be credited as to the alleged antiunion remarks
which he attributed to McGee, Noonan, and McGoldrick.
Whether or not Respondent had reason to welcome
organization by the salesmen, the record does not establish
that Respondent harbored animus toward the salesmen
generally or McCluskey individually because of his union
activities.
3. The merits of the reasons assigned by
Respondent for McCluskey's suspension and
discharge
Of the six commission claims which Respondent con-
tended were wrongly submitted by McCluskey, four
involved the submission of claims before equipment was
delivered to the jobsites, contrary to alleged company
policy. The General Counsel contends that there was no
written regulation embodying this policy, that there was no
showing that it was promulgated or enforced, and that in
fact practice varied among the salesmen and the territories
they covered.
There is no evidence of a written rule establishing the
proper time for submission of commission claims for
outside sales, but it appears that there was an established
rule known to the salesmen and communicated to them by
the supervisors. At one time Respondent required that
equipment be connected to the gasline before a commis-
sion could be claimed, but that requirement was relaxed at
least to the extent of permitting submission of claims after
equipment was delivered to the jobsite. Although there was
some testimony that salesmen were expected to make an
onsite inspection to be certain that the equipment was there
before submitting a claim, the evidence establishes that
salesmen sometimes relied on the word of contractors with
whom they regularly did business that the deliveries had
been made, and occasionally cut corners for purposes of
meeting a quota or contest requirement to submit claims
on the strength of a contractor's word that equipment
would be delivered. 8
McCluskey's testimony as to his understanding of
company policy and his practice was neither clear nor
R Former salesmen Costello, Occhiolini. and Lessard so testified and
conceded that they knew that equipment was required to be on the jobsite
consistent. McCluskey conceded that company policy
required that equipment be onsite before submission of a
commission claim, but he testified that it was not a hard
and fast policy and that salesmen submitted claims in
reliance upon the statement of a plumbing contractor that
he had sold a job. Then McCluskey testified that he would
submit a claim when the contractor told him that a job was
underway. On cross-examination as to his understanding
of the rule, McCluskey was evasive and responded with
respect to specific cases rather than his understanding of
the rule. In relation to one of the cases, McCluskey
conceded that he relied on an assumption which he made
rather than on what the contractor told him. When
McCluskey was questioned about his practice as a
supervisor in verifying claims made by other salesmen, he
testified that he was supposed to ascertain that the
salesman had a definite order and that as far as he was
concerned, it was sufficient that the equipment was going
to be installed subsequently or soon. He conceded,
however, that he had once heard McGee tell salesmen that
equipment had to be delivered before they could claim a
commission.
With respect to the jobs at issue, McCluskey testified that
based on a working relationship with Chaplin, whom he
considered an exceptionally reliable contractor and who
was the plumber at 589 Nantasket Avenue, 148 Atlantic
Avenue, 25 Channel Street, and 750 Nantasket Avenue, he
acted in reliance upon Chaplin's word that the equipment
would be installed at those locations and would eventually
get there and acted in good faith in claiming the
commissions.
I do not credit McCluskey that company policy permit-
ted him to submit a commission claim as soon as a
contractor told him that a job had been sold for future
delivery. That testimony was supported by only one other
witness, and former salesmen called by the General
Counsel conceded that the requirement was that equip-
ment be at the jobsite. Not only did McCluskey work as a
salesman for a number of years but in his capacity as
supervisor he must have known what was apparent to the
other salesmen. I cannot conclude that Respondent's
policy was as confused as General Counsel contends and
as little enforced. There is evidence that salesmen evaded
and cut corners, but there is no evidence that Respondent
condoned it, and indeed the testimony of the salesmen
called by the General Counsel establishes that salesmen
were reminded of the policy and that there were greater
attempts to enforce it within the year prior to the layoffs.
Finally, as will be seen below, even if the rule were as lax as
McCluskey described in each instance the claims submit-
ted by McCluskey did not fall within his own version of
what was required.
Turning to the four claims submitted by McCluskey
before delivery, the first involved the claim for 148 Atlantic
Avenue. McCluskey testified that he first found out that a
water heater was to be installed when plumber Paul Smith
called to tell him he had a job. McCluskey testified that
after he spoke to Smith, he went by to check the job and
discovered that Smith had not gotten the job because his
before making a commission claim and that it was cutting comers to submit
claims before delivery but testified that they were not alone in doing so.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
price was too high. McCluskey testified that he assumed
that Smith was going to put a water heater in as well as a
central heater and later learned at the Hull Town Hall that
Smith had taken out a permit for a water heater and a
central heater. McCluskey told Chaplin about the job, and
Chaplin later told him he got the job. McCluskey testified
that he had been waiting for some months for Chaplin to
start the job, asked Chaplin if he was starting it, and
claimed the commission in good faith on the basis of
Chaplin's word that he was starting the job, because he was
going on vacation and had no time to visit the job.
McCluskey conceded that he did not go into detail as to
what Chaplin was doing on the job, and that he relied on
Chaplin's mere statement that he was working on it.
McCluskey testified that he assumed that the job included
a water heater without asking Chaplin.
Chaplin testified that the job at 148 Atlantic Avenue was
to install only a central heater, and that later in mid-
November he sold a water heater to Mr. Sorenson which he
delivered but did not install.
From McCluskey's testimony I conclude that he had no
basis for submitting a claim for a water heater even under
his version of the rules, and I entertain substantial doubt
that the claim was made in good faith. No contractor ever
told McCluskey that he had sold a water heater at 148
Atlantic Avenue, and McCluskey did not ask Chaplin what
he was installing before submitting the claim. The justifica-
tion for McCluskey's assumption rests entirely upon what
he allegedly learned at the Hull Town Hall, although his
testimony elsewhere indicates that he did not check permits
until after the claim was submitted and he was suspended,
and there is no evidence that a permit was ever issued to
Smith to install a water heater. The explanation given by
McCluskey at the hearing for submission of this claim
conflicts with the explanation McCluskey gave on October
21 before he was suspended and which Madden repeated in
November. I find that Respondent had reason to conclude
on October 28 that McCluskey had submitted a baseless
claim for a commission on a water heater at 148 Atlantic
Avenue.
With respect to the claim at the McNair residence, 589
Nantasket Avenue, McCluskey testified that some months
before October 1975 he drove by the house with Chaplin,
who told him that he was going to sell a central heater and
a water heater at that address and asked for a log number
to insure the availability of gas. McCluskey testified that
before he submitted the commission claim, he asked
Chaplin if he had started the job, and Chaplin told him that
he had. He submitted the claim on the basis of what
Chaplin told him without looking at the job.
Chaplin testified that his job at that address was to install
only a central heater, which he delivered to the house on
October 20. He testified that he put a water heater in the
house in late November without an order from Mr.
McNair because of the possibility that McCluskey may
have been misled by their original conversation about the
job.
I find that McCluskey again lacked any reasonable basis
for claiming a commission for a water heater at the McNair
home in October. McCluskey did not submit a claim on the
basis of his original conversation with Chaplin some
months earlier. Quite clearly he recognized then that
Chaplin's statement that he was going to sell a job was an
insufficient basis for submission of a claim. Despite the fact
that several months had passed when he spoke to Chaplin
on October 21, McCluskey made no effort to inquire as to
the details of the job and relied on Chaplin's earlier
statement in claiming the water heater commission. Even if
McCluskey were to be believed, he had something less than
Chaplin's word that a water heater was to be installed.
However, I do not credit McCluskey and believe Chaplin
that he never told McCluskey that he had sold a water
heater at that address. I find that none had been sold at the
time McCluskey submitted his claim and that Respondent
after its investigation had reason to conclude on October
28 that McCluskey had submitted a baseless claim for a
water heater at this address.
With respect to 830 Nantasket Avenue, McCluskey
testified that he had persuaded the owner of the premises to
use gas water heaters in renovating the premises and that
the owner ordered them from plumber Burkowitz right
after McCluskey talked to the owner. McCluskey testified
further that to his knowledge the water heaters were
subsequently installed although not at the same time as the
central heaters because the owner ran into zoning problems
on the job. McCluskey conceded that the water heaters
were not on the premises at the time he submitted his
commission claim because of the security problem on the
jobsite, but testified that he did not know at that time that
the job was being held up and thought everything was
going forward.
The owner, Arthur Augenstern, testified that during the
summer McCluskey convinced him to use gas for both the
heat and hot water and that he put off delivery of the
heaters for some months to avoid any damage to them. He
could not remember when the water heaters were delivered
but testified that it was probably in the late fall. There is no
evidence as to the date the water heaters were ordered or
that Burkowitz ever told McCluskey that he had sold them.
Once again McCluskey's own version indicates that his
submission of the claim for the hot water heaters at 830
Nantasket Avenue did not follow even his version of
company policy. Although it appears that in this case the
owner intended to install gas water heaters and so
informed McCluskey, McCluskey submitted the claim
before the heaters were delivered and without having been
told by the contractor that the sale had been made.
Moreover, there is no evidence to contradict what
Respondent learned during the investigation before and
after McCluskey's discharge. I find that Respondent had
reasonable grounds on October 28 to believe that McClus-
key's submission of the commission claim for the water
heaters at this address was contrary to company policy.
With respect to 125 Samoset Street, McCluskey testified
that he had heard that the premises were being remodeled
and visited the site where he found six new water heaters
and four central heaters in cartons. He testified that two
additional central heaters had been brought to the site and
then taken away because of disagreement between the
owner and the contractor over the kind of central heat to
be installed in two apartment units. McCluskey testified
174
BOSTON GAS COMPANY
that later the two central heaters were returned to the site,
and ultimately all six were installed.
McCluskey testified that he later learned that the central
heaters had been previously sold by Kain, another
salesman, on what was known as a dealer sale rather than
an outside sale. McCluskey testified that he had not
discussed this location with Chaplin, who was the contrac-
tor, initially, but that before submitting the commission
claims he discussed the installation of the gas at the house
with him. McCluskey testified that he did not discuss the
heaters with Chaplin because they were already at the site
and there was nothing to discuss about them. He testified
that Chaplin did not tell him how long they had been there,
and he did not ask. McCluskey testified that because the
heaters were in cartons uninstalled he assumed that it was a
brand new installation and he had no reason to think
otherwise.
Chaplin testified that Kain sold the heaters to his father 2
or 3 years earlier and that no water heaters were included
in that transaction. Chaplin testified that four of the central
heaters had been installed at that time when the owner
intended to make minor changes in the house before
renting it. Chaplin testified that thereafter the owner
decided to rip everything out and start from scratch, and
the four central heaters which had been installed were
disconnected when the building was gutted. Chaplin
testified that they were left unpacked in the cellar while the
renovation was carried on. The two heaters which had not
been installed were in cartons and were taken back to
Chaplin's shop until sometime in the fall of 1975.
There was absolutely no reason for Chaplin to have
devised this testimony, and it is quite apparent that
McCluskey's explanation for assuming that the central
heaters at this location were recently purchased was
fabricated. While Respondent did not rely on the previous
sale of the heaters in discharging McCluskey, the patent
incredibility of McCluskey's explanation undermines his
claim that he believed that he was entitled to claim
commissions on the missing two heaters at the time he
submitted his claims. Moreover, even if McCluskey
believed that the heaters were recent sales on which he was
entitled to claim commissions, his explanation again shows
that he submitted the claim not on the basis of a
contractor's word that they were to be delivered but with
knowledge of a dispute over the kind of heater to be
installed. It does not appear that Respondent knew of that
dispute on October 28 and it is possible that by that time it
had been resolved, but nothing in McCluskey's testimony
supports a claim that he had a basis for submission of a
commission claim before the heaters were delivered to the
site, and I find that Respondent had a reasonable basis to
believe that the claim was contrary to its policy.
The remaining two claims relied on by Respondent
involved violation of other rules and policies. Respondent
took the position that the claims for commission submitted
by McCluskey at 750 and 750A Nantasket Avenue were
improper because the sales at that location should have
been considered volume sales and handled by volume
salesmen rather than a residential salesman. McCluskey
testified that 750 and 750A Nantasket Avenue involved "a
unique building." McCluskey testified that over the years
he gained the understanding that anything in four walls up
to six units was deemed residential if it had a separate
entrance. According to McCluskey, because there was no
direct hallway between the front entrance and the rear part
of the building, he viewed it as two separate four-unit
buildings for which the sales could be deemed residential.
McCluskey's claims for 750 and 750A were submitted on
three different dates. On September 3, he submitted claims
for four central heaters for the front part of the building
which he designated 750 Nantasket Avenue. On September
19, he submitted the claims for the water heaters for the
same portion of the building. On September 26, he
submitted a claim for a larger water heater intended to
supply hot water for a laundry room for the premises, and
on the same date submitted claims for the central heaters
and water heaters for the rear of the building which he
designated as 750A Nantasket Avenue. McCluskey testi-
fied that he submitted the claims on different dates in order
to win sales contests and also because some of the central
heaters were delivered at different times as the contractor
had difficulty getting them from the supply house.
McCluskey testified that water heaters all arrived at one
time and that he could have claimed commissions for all of
them on September 3 if he had so chosen. McCluskey
conceded that there was no such number as 750A on the
building, but testified that he used it simply to designate
the orders which pertained to the rear part of the building.
McCluskey denied that the manner in which he submitted
the claims was chosen to avoid the volume sales rule.
McCluskey testified that when he submitted the claims
designated 750 Nantasket Avenue, the water heaters and
central heaters were on the premises and he recalled seeing
them in the cellar. He later testified that he saw the central
heaters and water heaters there at the final stages, probably
after he submitted the claims.
Chaplin testified that he installed the central heating at
this address, that he ordered eight central heaters on
September 3, that the supplier only had two which he
received on September 19, and that the other six were
delivered on October 20.
Once again Chaplin's testimony impairs a portion of
McCluskey's explanation for the way he handled the
claims on this job. If the dates of McCluskey's claims had
anything to do with the delivery problems that Chaplin
encountered, McCluskey would not have submitted claims
for more than two of the central heaters before October 20,
and he would have submitted no claims for any of them on
September 3.
In justification of his treatment of these sales as
residential sales McCluskey testified that in August 1975 he
had a conversation with volume salesman Paul Crossen, as
a consequence of which he understood that it was
permissible for him to handle the job at 750 Nantasket
Avenue. McCluskey's testimony in this regard is in conflict
with that of Crossen's. Although McCluskey's testimony
initially appeared to be designed to establish that he had
permission to put in claims for commissions on sales like
those at 750 and 750A Nantasket Avenue, McCluskey
ultimately disclaimed any implication that Crossen had
suggested to him that he claim commissions to which he
was not entitled, and it seems clear that what Crossen told
175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McCluskey was, as Crossen testified, that where there were
close questions McCluskey should keep Crossen informed
of what he was doing to avoid duplication of effort. It
makes little difference whether or not McCluskey told
Crossen, as McCluskey testified, that he was working on
750 Nantasket Avenue, but based upon my overall
impression of McCluskey and Crossen and the implausibil-
ity of portions of McCluskey's testimony as to their initial
conversation, I credit Crossen that McCluskey did not tell
him he was working on 750 Nantasket Avenue.
Although McCluskey testified that he believed that the
eight units at 750 Nantasket Avenue could be claimed as
residential sales, a company memorandum which had been
in effect since 1967 makes it clear that the building at 750
Nantasket Avenue was to be considered as a volume sale,
and McCluskey's testimony that he was not familiar with
that memorandum is highly suspect. Indeed, the inference
is strong that McCluskey, a longtime salesman and former
supervisor, knew that the sales at 750 Nantasket Avenue
should be treated as volume sales and that McCluskey's
submission of the claims on different dates with different
addresses was designed to conceal the violation of the
volume sale rule. I find that McCluskey's testimony fails to
show any persuasive reason for his treatment of these sales
as residential, and that Respondent had reason to believe
on October 28 that McCluskey had intentionally sought
commissions for these sales to which he was not entitled.
With respect to 25 Channel Street, McCluskey testified
that he understood that company rules permitted an
outside sale commission claim for the kind of wall furnace
which was sold there if it had input of 50,000 BTU or more.
In support of that testimony, General Counsel offered as
an exhibit a February 9, 1970, memorandum on the subject
of 1970 house heating quotas. However, despite McClus-
key's testimony that this memorandum supported his
commission claim, careful reading of the memorandum
and the testimony of the other witnesses, including that of
Occhiolini and Lessard, who were called by the General
Counsel to corroborate McCluskey, reveals that the
memorandum did not relate to commissions for outside
sales and that residential salesmen were not entitled to
commissions on sales of room heaters. McCluskey's
testimony to the contrary is the only testimony which
supports his submission of the claim for 25 Channel Street,
and I do not credit it. I conclude that Respondent had
reasonable grounds on October 28 to believe that McClus-
key's submission of a commission claim for this address
was improper.
Contrary to the General Counsel's contention, I find that
the reasons advanced by Respondent for McCluskey's
discharge are anything but demonstrably false. Indeed
while the seriousness of the violation was not the same in
each case, Respondent had reason to believe that each of
the six commission claims was irregular for the reasons
stated by Respondent at the time of McCluskey's dis-
charge.
9 A third reason advanced in Respondent's brief was that McCluskey
had scarcely sufficient time to properly process the previous day's order
from Selig. That reason was not mentioned by McGee in his testimony. As
the equipment was already on the site of Selig's job, there is no apparent
4. The alleged discrimination
The General Counsel contends that the treatment of
McCluskey was harsh and unusual in comparison to other
disciplinary actions by Respondent in the past. The
evidence as to past disciplinary actions and as to one
instance in which there were irregularities in a claim
submission but no discipline shows that in each case only a
single commission claim was involved. In the case in which
no discipline was imposed the circumstances showed that
the submission was the result of an innocent mistake. In
McCluskey's case there were multiple irregularities, and the
circumstances surrounding several of them indicate that
McCluskey's submission of the commission claims was not
the result of an innocent mistake. If anything the record
shows that Respondent treated lesser offenses equally
harsh.
The General Counsel contends further that the initiation
of the investigation on October 21 by McGee was unusual
because McGee did not ask McCluskey for an explanation
for his submission of the commission claim for the Seligjob
before starting the investigation and because the discrepan-
cies which McGee initially found were minor and were not
fully investigated before McCluskey was suspended.
McGee's asserted reasons for the investigation were the
fact that plumber Selig had not mentioned a water heater
in his telephone conversation with McGee and the
grumbling of other salesmen about McCluskey's winning
contests. 9 These reasons do not appear particularly strong,
and when considered in conjunction with the timing of the
investigation just 5 days after the election, there is some
basis for suspicion of McGee's motive. But the suspicion is
not strengthened by McGee's failure to talk to McCluskey
before going out to inspect the jobs. If McGee suspected
McCluskey of padding his commission claims, there was
no reason for him to believe that McCluskey would tell him
anything other than that which would support the
submission claim. After McGee made his initial investiga-
tion on October 21, on the morning of October 22 he and
Noonan did talk to McCluskey before continuing the
investigation and taking any action against him. Despite
the fact that McCluskey's response at that time with
respect to the Sorenson job conflicted with what McGee
had been told by Mrs. Sorenson, McCluskey was not
suspended that morning but was suspended only after
McGee and Noonan confirmed the impression that there
were irregularities in two of the three claims that McGee
testified originally raised his suspicions. In the absence of
any evidence of animus in this case, the facts as to the
timing of the initiation of the investigation and the reasons
given by McGee for initiating it are not sufficient to
support an inference that the investigation was begun
because of McCluskey's union activities, nor does the
evidence support the General Counsel's further contention
that the investigation conducted thereafter was slipshod
and incomplete.
The evidence also does not establish that Respondent
failed adequately to investigate the claims made by
reason why it should have taken McCluskey longer to submit his
commission claim. In the absence of assertion of this reason by McGee and
any opportunity for the General Counsel to examine McGee about it, I
cannot infer that it was a reason for McGee's action.
176
BOSTON GAS COMPANY
Madden at the November 10 meeting and to consider fairly
Madden's request for McCluskey's reinstatement. The
thrust of Madden's contention was that the equipment
which had been missing from four of the sites at the time of
the initial investigation was at the jobsites when he made
his investigation. His contentions were not ignored.
Noonan revisited the sites and found that Madden's claim
was correct as to the job at 125 Samoset Street but not as to
the others. In the meantime, between the time of the
discharge and Noonan's reinvestigation Respondent had
found a further irregularity with respect to that job which
made it clear that McCluskey had no right to claim any
commission for it. While that information was not a cause
of the discharge, clearly Respondent did not have to ignore
it in assessing whether the delivery of the additional central
heaters to that site mitigated McCluskey's offenses.
The contention that all the equipment was ultimately
delivered so that the irregularity in the claims by McClus-
key had only minor impact is not persuasive. In the case of
the Sorenson and McNair orders, the evidence shows that
water heaters had not been ordered at the time McCluskey
submitted claims, and in at least one of the cases the later
delivery of the equipment was a direct outgrowth of
McCluskey's complaint to Chaplin after his discharge that
Chaplin had misled him and had been responsible for his
submission of a false claim. The fact that all the equipment
was later delivered also, of course, has no bearing on the
irregularities of 750 Nantasket Avenue and 25 Channel
Street or upon the ultimate discovery before delivery of the
missing heaters to three of the jobs that McCluskey was not
'o 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.
entitled to any commissions for the job at 125 Samoset
Street.
I cannot conclude on the evidence before me that the
reasons advanced by Respondent for the discharge of
McCluskey were not the true reasons. Accordingly, I find
that the General Counsel failed to maintain his burden of
proving that McCluskey's discharge was caused by union
activities, and I shall recommend that the complaint be
dismissed in its entirety.
CONCLUSIONS OF LAW
1. Boston Gas Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Utility Workers Union of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. The General Counsel has failed to establish that
Respondent has engaged in unfair labor practices as
alleged in the complaint.
Upon the basis of the above findings of fact and
conclusions of law, and the entire record in this case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby issue the following recommend-
ed:
ORDER 10
The complaint is dismissed in its entirety.
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.
177