Continental Pipe Line Co.

National Labor Relations Board - Board Decisions

Apr 17, 1946

67 N.L.R.B. 389 (N.L.R.B. 1946)

In the Matter Of CONTINENTAL PIPE LINE COMPANY and INTERNA-
TIONAL UNION OF OPERATING ENGINEERS , LOCAL No. 550, A. F . L.
Case No. 16-6'---1,19.-Decided April 17, 1946
DECISION
AND
ORDER
On January 7, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report and a supporting brief. No request for oral
argument before the Board at Washington, D. C., was made by any of
the parties, and none was held.
The Board has considered the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Continental Pipe Line
' We note that the Trial Examiner , in discussing the altered employment record of
Pumpelly, inadvertently found that both words "Resigned-Dissatisfied" on the record
were written with a typewriter ribbon, while other entries on the document were in car-
bon An inspection of this employment record indicates , and we find, that the word "Dis-
satisfied" is in carbon rather than in original as found by the Trial Examiner , although
it is in different size type from the other carbon entries. The document is nevertheless
discredited for the reasons set forth in the Intermediate Report and more particularly
by reason of the erasure and substitution of the word, "Resigned ," by typewriter ribbon
for the original entry.
67 N. L R B, No 55
389
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, Ponca City, Oklahoma, and its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Union of Operating
Engineers, Local No. 550, A. F. L., by discriminatorily discharging
or refusing to reinstate any of its employees, or in any other manner
discriminating in regard to their hire or tenure of employment or any
term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Union of Operating
Engineers, Local No. 550, A. F. L., or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection as guaranteed in Section
7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to James M. Pumpelly and Ralph King immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges ;
(b) Make whole the above-named employees for any loss of pay they
may have suffered by reason of the respondent's discrimination against
them by payment to each of them of a sum of money equal to that
which he normally would have earned as wages during the period
from the date of the respondent's discrimination against him to the
date of such offer of reinstatement, less his net earnings during such
period ;
(c) Post at its various stations throughout the McAllen District,
Texas, copies of the notice attached to the Intermediate Report marked
"Appendix A." 2 Copies of said notice, to be furnished by the Regional
Director of the Sixteenth Region, shall, after being duly signed by the
respondent's representative, be posted by the respondent immediately
upon receipt thereof, and maintained by it for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps shall be
taken by the respondent to insure that said notices are not altered,
defaced, or covered by any other material;
(d) Notify the Regional Director for the Sixteenth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
S Said notice, however , shall be, and it hereby is, amended by striking from the first para-
graph thereof the words, The Recommendations of a Trial Examiner ," and substituting
in lieu thereof the words, "A Decision and Order."
CONTINENTAL PIPE LINE COMPANY 391
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. Earl Saunders , for the Board.
Mr. William H. Zwick, of Ponca City, Okla., for the respondent.
Mr. J. E. Gilliland, of Corpus Christi, Tex., for the Union.
STATEMENT OF THE CASE
Upon a charge filed May 17, 1945, by International Union of Operating Engi-
neers, Local No 550, A. F. L, herein called the Union, the National Labor Rela-
tions Board, herein called the Board, by its Regional Director for the Sixteenth
Region (Fort Worth, Texas), issued its complaint, dated October 25, 1945, against
Continental Pipe Line Company, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint and notice of hearing thereon were duly served upon the
respondent and the Union.
With respect to the unfair labor practices the complaint, as amended during
the hearing, alleges in substance: (1) that the respondent discriminatorily dis-
charged, because of their union activities, James M Pumpelly and Ralph King, on
September 1, 1944, and April 19, 1945, respectively; (2) that from March 1944,
to the date of the complaint the respondent has urged and warned its employees
to refrain from joining or remaining members of the Union, has expressed dis-
approval of the Union, and has kept under surveillance union meetings; and (3)
that by these acts the respondent has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section 7 of the Act.
In its answer, filed with counsel for the Board at the opening of the hearing,
the respondent denies that it has engaged in the alleged unfair labor practices.
As to Ralph King, the answer alleges that he was discharged for just cause.
Pursuant to notice, a hearing was held in Rio Grande City, Texas, on November
20, 21 and 22, 1945, before the undersigned Trial Examiner, duly designated by
the Chief Trial Examiner. The Board and the respondent were represented by
counsel, and the Union by an International Representative. All parties par-
ticipated in the hearing and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon the issues.
At the opening of the hearing the Trial Examiner granted a motion of counsel
for the Board to amend the complaint in certain respects, particularly to include
an allegation that James M. Pumpelly had been discriminatorily discharged'
During the hearing the request of counsel for the respondent was granted to
the effect that the general denials in the answer as filed be deemed to cover
the amendments made to the complaint. At the close of the hearing a joint
motion was granted to conform the pleadings to the proof in minor matters.
Also at the close of the hearing all counsel waived the privilege accorded to them
of arguing orally before the Trial Examiner and of filing briefs with him.
In granting this motion , the objection of counsel for the respondent was overruled.
Counsel was informed that after the completion of the Board 's case a reasonable adjourn-
ment would be granted , if requested , in view of the new allegations . At the end of the
Board ' s presentation of evidence , however, counsel for the respondent expressly stated that
he desired no adjournment
392 DECISIONS OF NATIONAL LABOR RELATIONS BOaftD
Upon the entire record in this case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Continental Pipe Line Company is a Delaware corporation, with its principal
office in Ponca City, Oklahoma. It is engaged in the State of Texas and in other
States in the transportation of crude oil and petroleum products. In Texas,
it transports crude oil for various producers through pipe lines with terminals
at Port Brownsville, Texas, at which port a substantial amount of such oil is
loaded into tankers and shipped to Baltimore, Maryland, and to the Dominion
of Canada. The amount of oil thus transported exceeds five hundred thousand
barrels a year.
The respondent admits that it is engaged in commelce within the meaning of
the Act?
II. THE ORGANIZATION INVOLVED
International Union of Operating Engineers, Local No 550, A. F. L, is a labor
organization admitting to membership employees of the respondent.
III THE UNFAIR LABOR PRACTICES
A. Setting in which relevant events occurred
1. Nature of the operations involved herein
The major events at issue in this case took place in one area of the respond-
ent's several operations. This area, in the lower Rio Grande Valley, is known
as the McAllen District. The district office is located at McAllen, Texas. Since
early 1942 H. E. Greenwell has been in charge of this area as superintendent.
The pipe line under Greenwell's supervision extends from a point called the
Rincon Oil Field, in Starr County, Texas, to the terminal at Port Brownsville,
on the Gulf of Mexico. Along the course of this line are several junctions and
stations to which a varying number of employees are regularly assigned. At
one of the two types of stations along the main line oil is pumped into storage
tanks, and from them is pumped on down the main line At most of such pump
stations three men are regularly assigned. About 40 men, classified either as
engineers or gaugers, operate and maintain the stations where storage tanks
are located. In addition to these men, Greenwell has supervision over from
five to seven connection men, and a "receipt and delivery gauger" who is sta-
tioned at the Brownsville terminal.
The two discharges at issue herein occurred at opposite extremities of the
line : one at the Rincon field, and the other at the Brownsville terminal. The
nature of the work performed at these two points as it relates to the issues in
this case, will be discussed more fully below.
2. Self-organizational efforts of employees in the McAllen District
The record contains no evidence that any efforts toward self-organization
were made among the respondent's employees in the McAllen District before
early 1944. At that time the general office of the A. F. L. sent an organizer into
S The above findings are based upon a stipulation of all parties entered into at the
hearing.
CONTINENTAL PIPE LINE COMPANY 393
this field to attempt organization among the employees of both the respondent
and the Continental Oil Company.'
One general meeting of the respondent's employees was held in the late spring
or early summer of 1944. As described more fully below, and despite the
protest of the organizer, Superintendent Greenwell attended this meeting, and
advised the assembled employees, in effect, that he disapproved of their or-
ganizing and specifically threatened to quit if they did organize . Only one
employee, James M. Pumpelly, openly joined the Union at this meeting after
Greenwell's speech. Shortly thereafter Pumpelly's employment of more than
twenty years with the respondent was terminated, under circumstances nar-
rated below. Further organizational efforts ceased until the spring of 1945.
Early in 1945 two union representatives renewed organizational activities in
this area. Employees of the Continental Oil Company became organized, a
charter was issued, and Local 550 was established. A few employees of the
respondent joined or applied for membership in this local. The charter was
received and officers were elected at a meeting held on March 21, 1945. An
employee of the Continental Oil Company was elected president, and Ralph King,
a gauger at the respondent's Rincon Field, was elected vice-president. The
discharge of King, a few days after his election to this office, is described below.
B.. vents relevant to issues in this proceeding
1. Superintendent Greenwell attends organization meeting in 1944
A few days before the organization meeting in 1944, the A. F. L. organizer sent
postal card announcements of the meeting place and date to the pipe line employ-
ees. Superintendent Greenwell, according to his own testimony, read one of the
cards which came through the office addressed to one of the employees. He there-
after told at least one operator in charge of a station that he wanted employees
to attend, and upon receiving this information from the operator at least one
employee went to the meeting against his own wishes.`
Greenwell himself went to the meeting, which was held in a local hall at
McAllen. Although the organizer objected to his presence, pointing out that he
did not believe the men would feel free to vote if he should remain there, Green-
well declined to leave unless the organizer also withdrew.'
One of the employees asked Greenwell to make a speech. Among other things
Greenwell urged the assembled employees, numbering about 30, that while it was
their business to decide whether or not to join the Union, they should not "go
into the matter blind." He advised them to let their "conscience be their guide."
He further told them, also according to his own testimony :
... there were somewhere between three and five million men in uniform
who were fighting for free speech and a free press and for free religion and
that I felt like it was my privilege in saying that the same day that the Con-
tinental Pipe Line Company was organized and that they got a contract, that
I would resign.
8 The Continental Oil Company is not involved herein. Although the record does not de-
scribe the exact connection between the two companies , it appears that the Continental
Oil Company produces and refines the oil which is transported by the respondent. It was
stipulated at the hearing that the respondent operates the pipe line independently.
4 Employee Anderson , a witness called by the respondent , so testified. Operator Clark
also a witness for the respondent , testified that Greenwell had told him of his wishes.
5 Greenwell himself so testified.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He then left the meeting.
After Greenwell withdrew, some employee suggested that a secret ballot be
taken. Employee James M. Pumpelly stood up, declared himself as opposed to
such secrecy, and asked everybody who was "for the union" to stand up. No vote
was taken . Finally the organizer asked those who wanted to sign an application
card to "come to the front". 1umpelly was the only employee present who went
to the front and signed a cards
2. Greenwell continues campaign to discourage organization
After the McAllen meeting Greenwell informed numerous employees of his dis-
approval of organized labor.
In August or September, 1944, the superintendent went to the home of station
engineer Ralph W. Stevens, told him he was "against organized labor," and
stated that he would quit it the "boys" joined.
In the latter part of March 1945, after organizational efforts were renewed,
Greenwell came to Stevens while the latter was at work, announced that he
was "going around talking to the boys," because he understood some of them
were not satisfied . He repeated that he was against organization , and declared
that if there ever was a union contract he would make Stevens "wipe the motors"
throughout his shift, if there was nothing else to do at the station. He further
declared that if the employees did not live up to any such contract he would
lay them off.7
Greenwell inquired of employee Marshall Story as to whether or not two
other employees were members of the Union. He asked employee Ponce McNulty
if he had been approached by the union organizer . He told employee W. W. Files
that he was "against" organization of the pipe line workers.'
3. The discriminatory discharge of James M . Pumpelly
(a) Events surrounding the discharge
Until the termination of his employment on September 1, 1944, James M.
Pumpelly had worked continuously for the respondent, without a day's absence,
since January 1923. During this long period of uninterrupted service he held
many positions of responsibility in several different areas operated by the
respondent.
Sometime in 1942 Pumpelly was transferred to Greenwell 's jurisdiction,' and
became the receipt and delivery gauger at the Brownsville terminal.
A few days before the McAllen organizational meeting, above described, Green-
well asked Pumpelly if he was going to join the Union, and informed him that if
the "boys" joined he would quit. Pumpelly told the superintendent that if the
others wanted the Union lie would go along with them Gieenwell replied that
employees who joined would be "run off", or transferred to Wyoming. The
respondent operates a pipe line in Wyoming.
As described above, Pumpelly attended the McAllen meeting, and was the only
employee to come forward at the organizer's request and sign an application
card. Although it appears that Greenwell left the meeting before Pumpelly's
6 Pumpelly 's testimony as to his part in the meeting is undisputed.
7 Greenwell did not deny having thus made his antipathy toward self -organization known
to Stevens
8 The findings rest upon the testimony of the employees involved, who were witnesses
called by the respondent.
9 The record does not establish accurately when Pumpelly came to the McAllen District.
From Greenwell's testimony, however, it appears that, at the time his employment was
terminated , Pumpelly had been at Brownsville about 2 years.
CONTINENTAL PIPE LINE COMPANY 395
action, the undisputed fact that the superintendent thereafter queried others as to
who were members is persuasive, and the Trial Examiner finds that Greenwell
was informed of Pumpelly's application.
A few days after the meeting Greenwell visited the terminal at Brownsville
and went cursing about the office. Pumpelly asked if there was something wrong
with his work. When the superintendent said that his work was all right, Pum-
pelly asked what was wrong. Greenwell did not answer, but left, still cursing. A
week or so later Greenwell returned and conducted himself similarly. This time
he explained, upon Pumpelly's inquiry, that it was because of the employee's "God-
damned attitude". On several occasions thereafter Greenwell went to the ter-
minal and cursed at Pumpelly. On August 31 he again appeared there, and
again cursed Pumpelly's "attitude." That evening Pumpelly telephoned to the
respondent's vice-president, A. C. Wilkinson, told him it was impossible to
continue at Brownsville and asked to be transferred. Wilkinson replied that he
would see Greenwell and let him know within a week. A few minutes later Green-
well telephoned to Pumpelly and berated him for turning in an overtime claim,
declaring that he had not worked the time appearing thereon. Pumpelly assured
him that he had turned in the exact amount of such overtime, and that he had done
so at Greenwell's own instructions. Greenwell then called him a "God damned
liar." Pumpelly replied, "Greenwell, it looks like this is the end of it." The
superintendent said : "What else can I do to get rid of you ; you're fired." Pum-
pelly countered, "You're not firing me; I'm quitting." The superintendent
insisted, "No, you're fired."
The next day Pumpelly was paid off. Several months later he asked Green-
well for reemployment, but was refused.'O
(b) The 'espondent's contentions as to Punpelly's discharge
Although the respondent, by its motion to refile its answer to cover the complaint
as amended to include Pumpelly's discharge, in effect denied that the discharge
was because of union activities, no affirmative reason was advanced by the
respondent until after the employee himself had testified.
And although Greenwell's testimony is confused and conflicting, it appears
to be his contention that Pumpelly voluntarily quit his job and was not discharged.
When questioned directly by counsel for the respondent on the point, Greenwell
stated : "He resigned " He later testified, however, on cross examination, as
follows :
Q. . . . What was the reason you gave for Mr. Pumpelly leaving the
employment of the company if he left it without being discharged?
A. He padded his car mileage and turned in an excessive amount of over-
time which could have been taken off.
Q. When did you last get on him about that?
A. The day he was discharged.
Thereafter Greenwell again changed his position, in response to questions of
the Trial Examiner, and stated: (1) that Pumpelly quit; (2) that if he had not
quit he would still have been employed at Brownsville; and (3) that the matter
of car mileage had nothing to do with his discharge, quitting, or being refused
reinstatement.
w The findings as to Gieenwell s interviews v 0th Pumpelly are based mainly upon the
latter's credible testimony, and upon an unaltered portion of a document prepared upon
Greenwell's instructions on or about September 1, 1944, which is described fully in the
section next following above For reasons set forth in the same section, the Trial Ex-
aminer is unable to rely upon Greenwell's testimony where unsupported by credible evidence.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Before finally admitting that the item of car mileage had nothing to do with
Pumpelly's leaving the respondent's service, Greenwell testified at considerable
length to the effect that, when first employed at Brownsville, Pumpelly had
used, contrary to instructions, a long route instead of a short one, in driving
his own car tor reach a point in the territory under his jurisdiction as gauger,
and had charged the respondent for such extra mileage. The superintendent
admitted, however, that Pumpelly had used this route for at least 7 months
before he spoke to him about it, that shortly thereafter a company-owned car
had been assigned to the employee, and that for at least a year before September
1, 1944, there could have been no complaints about mileage.
The record is without any evidence to support, Green well's statement, quoted
above, that Pumpelly's car mileage had been "padded", in the sense that he had
claimed credit for distances not covered on company business.
As to Greenwell's claim that Pumpelly had turned in claims for excessive
overtime, the superintendent stated that it was frequently necessary for the
gauger to work overtime hours when tankers were being loaded at Brownsville,
but that Pumpelly had, on occasions, failed to take time off later in the week
in order to avoid being paid time-and-a-half for hours exceeding 48 within the
week. Greenwell testified that he spoke to Pumpelly about this matter, but made
no claim either that Pumpelly had recorded time for work not performed, or
that he had ever told Pumpelly he would be disciplined or discharged if he
failed to keep his work record within a 48-hour limit.
As to the events of September 1, 1944, Greenwell testified that after he had
told Pumpelly that his time sheet had too much overtime on it, the employee
promptly resigned. He further testified that on the same day he had instructed
a clerk in his office, D. W. Jackson, to make out a "termination record" for
Pumpelly and to note thereon that Pumpelly had resigned as dissatisfied. At
this point in his testimony a document, identified by Greenwell as being the
record thus made by his clerk, was introduced into evidence. In the space
alloted to the "reason for termination", appears the typewritten words :
Resigned-Dissatisfied
It is visually plain, however, and the Trial Examiner finds, that the above-
quoted notation was not the original entry in this space. This finding is based
upon several factors, including: (1) the visual evidence of an erasure of some
word which originally appeared under "Resigned"; (2) the fact that the words
"Resigned-Dissatisfied" were not only written with a typewriter ribbon while
other entries upon the document are in carbon, but also that they were written
with a typewriter equipped with Standard type, while all other entries were
made with a typewriter equipped with Elite type; and (3) the admission of
Jackson that he had changed the entry originally made. The confused and
contradictory testimony of both Greenwell and Jackson, when asked to explain
the altered document, casts discredit upon both the document itself and the
entire testimony of both witnesses .u
ti For example, Jackson testified that he had first inserted "Quit" in this space, but that
he had changed it, upon GieenweIl's instiuctions, to "Resigned " He later contradicted
this testimony, stating that he had changed "Quit" to "Resigned" before submitting the
document to Greenwell for his signature At one point in his testimony, Jackson stated
that he had used the same typewriter for all entries, but later changed this testimony when
it was pointed out to him that two different typewriter types had been used. Thereafter
Jackson declared that lie had not inserted "Dissatisfied" on the document and did not know
who did. Greenwell claimed that he knew nothing about the alterations on the document,
or when the alterations had been made, but snsssted that they had been made before the
hearing Whatever word may have been first written and erased, it clearly was not "Quit,"
and was a longer word than " Resigned ," since the erasure and indentations of type extend
beyond the superimposed word "Resigned" at both extremities.
CONTINENTAL PIPE LINE COMPANY 397
An unaltered entry on the same document is in significant support of Pum-
pelly's testimony that Greenwell, after the McAllen meeting, had repeatedly
cursed his "attitude". This entry appears in answer to the printed question:
"Would you rehire?", and is: "Yes, if attitude changes." [Italics added.]
No evidence, except Greenwell's unsupported and untrustworthy testimony,
was adduced to show that Pumpelly at any time had violated overtime instruc.
tions or had submitted a claim for time not worked. Pumpelly's long and unin-
terrupted service of more than twenty years with the respondent speaks more
convincingly in behalf of his credibility as to events leading up to his discharge
than does the testimony of the superintendent, who produced at the hearing an
obviously altered document in an attempt to support his testimony that Pumpelly
quit"
The Trial Examiner finds Greenwell's contentions to be without merit.
(c) Conclusions as to Pumpelly
It has been found that Greenwell's testimony as to the circumstances of Pum-
pelly's leaving the respondent's employment is untrustworthy and without merit.
No credible evidence was offered by the respondent to show that Pumpelly was
discharged for a justifiable cause or that he quit voluntarily.
It has also been found that Greenwell began cursing Pumpelly's "attitude"
immediately after the McAllen meeting, when this employee alone openly advo-
cated organization in the face of the superintendent's announced opposition.
The Trial Examiner concludes and finds that Pumpelly was actually discharged
by Greenwell on September 1, 1944, and that he was discriminatorily discharged
because of his union activities.
4. The discriminatory discharge of Ralph King
(a) Events surrounding the discharge
At the time of his discharge on April 19, 1945, Ralph King had worked as a
gauger for the respondent or its predecessors for seven years.'g The record con-
lains no evidence that in this period he had ever been disciplined, or threatened
with discipline, for failure to perform his work properly. On the morning of
April 19, 1945, however, Superintendent Greenwell hid in bushes near a battery
of tanks where King was working, observed that King did not gauge the tanks
in the manner prescribed by written rules, and summarily discharged him.
For several months before his discharge King and one or two other gaugers
worked in the Rincon field under District Gauger Moffet. As district gauger it
was Moffett's responsibility to assign his assistant gaugers to various parts of
the field to test and run batteries of oil tanks and to instruct them as to the
handling of their jobs. For some weeks before April 19 Moffet was intermittently
ill, and later died. In February 1945, Greenwell told King that in the event
Alofeet was unable to return he would be given the district gauger's job. Accord-
ing to the superintendent's own testimony it was his intention at that time to
promote King to this position.
12 From his observation of counsel for the respondent and Greenwell at the time the docu-
ment was offered, the Trial Examiner does not believe that Vlr Zwick was aware that its
entries. had been altered. His only question regarding it, after the alteration had been
discovered by counsel for the Board, was to ask Jackson if be had queried him at all about
it before it was offered. Jackson answered in the negative, and the Trial Examiner accepts
his denial as true
ii King began to work in this capacity for the Valley Pipe Line in 1938. This pipe line
wits later sold to other interests, and in April, 1942, was taken over by the Continental
Pipe Line Company.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the latter part of February, as noted heretofore, union activity was
revived in this area . Shortly after it began Greenwell told King that he had
heard "talk" of the Union "going around ", but that he believed the "boys" would
stay with him as they had the previous year. On March 21 , King was elected
vice-president of the local, the highest office held by a pipe line employee. At
about the same time Moffett reported to King that he had told Greenwell, upon
the latter's direct inquiry, that King and another gauger had joined the Union.
And a few days later, while King was visiting at Moffett's home, the latter told
him that the superintendent had said he ( King ) would not be given the district
gauger 's job unless he quit the Union. In view of Greenwell's openly expressed
hostility toward the Union, as heretofore found, the Trial Examiner is convinced
and finds that the superintendent made the statements to Moffett as reported
through the witness King."
On April 13 Greenwell sent Jack Mayes, a gauger from another field, to take
Moffett's place. According to the testimony of Greenwell and Mayes, on April
16 or 17 Mayes asked Greenwell if the oil should not be "run" in the Rincon field
as in other fields, and intimated that it was not being gauged properly at Rincon.
Both Greenwell and Mayes denied that King's name was mentioned. On the
morning of April 19 Greenwell went to the Rincon field, bid in bushes and watched
King run a certain battery of tanks. King, according to his own testimony, did
not gauge them properly on this occasion, and he was immediately thereafter
discharged.
(b) The respondent's contentions as to King
It is the respondent's contention that King's violation of gauging rules on April
19 was the only reason for his discharge. The Board, in effect, concedes that
King failed to follow written instructions on this and many other occasions.
In short, the rules prescribed a certain procedure of gauging and testing of oil
before it should be permitted to run into the line Since there is no factual dispute
either as to the nature of the rules or as to King's failure to abide by them
on April 19, it is unnecessary here to describe in detail the method set up by
the company's instructions. Greenwell as a witness claimed, in effect, that
King 's action was a serious breach of regulations It is not within the Trial
Examiner's province to determine whether or not an operating rule is good or
bad, but whether or not, in view of Greenwell's contention, King's breach of regu-
lations was the real reason for his discharge . Whatever the inherent importance
or necessity for prescribing a certain method of gauging and testing, the testi-
mony of many witnesses , both for the Board and for the respondent , including a
former supervisor of the Rincon field, establishes beyond question that for a
long period, until April 19, 1945, it had been the common practice for all gaugers
to ignore the rules at least half of the time and to use a shorter method referred
to by them as "boiler-housing." District gaugers also boiler-housed, and only
cautioned the men under them not to get "caught at it" About once a year a chief
gauger visited the fields and watched the gaugers "work" a tank, but there is no
evidence that he ever accused any of them of improperly gauging or that he ever
reported incidents of improper gauging to Greenwell. Nor is there any evidence
that any employee, exc,pt King, has ever been discharged or disciplined in any
way for violating the gauging rules.
Greenwell's testimony on "boiler housing" generally and oil King's breach
of the rules is confused and inconsistent. At one point lie testified that he had
had no knowledge of how oil was being "run" until a day or two before he
16 Greenwell denied making such statements to Moffett, who died some time before the
hearing opened, but was not questioned as to whether or not he had told King that he be-
lieved the "boys" would, in effect, remain out of the Union as they had the year before
CONTINENTAL PIPE LINE COMPANY 399
discharged King At another point, however, he testified that he had suspected
King of gauging improperly in the fall of 1944, because he had then seen him
wearing "clean" khakis. Whatever his knowledge or suspicion , he admitted
that he had never warned King about the gauging practice. Greenwell, further-
more, failed to explain reasonably why, if he had suspected King of violating
rules in the fall of 1944, he (1) made no effort to check upon his suspicion
at that time and (21 told King in February that he was in line for the district
ganger's job. or (lid he explain, as a witness, why he had checked only on
King, on April 19, and not upon the two other gaugers also working in the same
field.
Whatever may have been the actual importance of the rules or the seriousness
of its breach, Greenwell's conduct, above described, shows that lie did not consider
King's possible violation as deserving of any investigation, or even of warning,
until after the employee became a union leader This finding rests firmly upon
the facts. (1) that Greenwell had suspected King of violating the rule in the fall
of 1944, but made no effort to check his suspicion; (2) that still without investi-
gation he told King in February that he was in line for promotion to Moffett's
job; and (3) that in April, after King had become a union leader despite the
threat transmitted through Moffett, Greenwell not only sent Mayes into the field
to relieve Moffett but for the first time made a specific effort to catch King in
dereliction of his duties. Greenwell's action on April 19 is more reasonably to be
interpreted as designed to catch King and to discharge him, than to assure the
proper gauging of oil
(e) Conclusions as to the discharge
The Trial Examiner is convinced, and finds, that the real reason for King's
discharge was his union activity and leadership, and not his violation of rules.
Greenwell's course of conduct with respect to King, before the gauger became
vice-president of the Union, is in marked contrast with that which followed his
election to that office. The superintendent's contrasting conduct is of a pattern
with that engaged in with respect to Pumpelly, and clearly was designed to
carry out his campaign of discouraging union membership.
5. Conclusions in general
The Trial Examiner concludes and finds that by its discharge of James M.
Pumpelly and Ralph King, because of their union activities, the respondent
discriminated as to their hire and tenure of employment, thereby discouraging
membership in the Union.
It is likewise concluded and found that by Greenwell's conduct, including his
discharge of the two above-named employees, his attending the union meeting
in 1944 despite the protest of the union organizer, his speech to the employees
discouraging self-organization and threatening to quit if they organized, his
questioning of employees as to their union membership, and his threats of re-
prisals if they did not quit the Union, the respondent has interfered with,
restrained, and coerced its employees in the rights guaranteed in Section 7 of the
Act.
IV. THE EFFECT OF TILE UNFAIR LABOa PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation 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.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Since the undersigned has found that the respondent has engaged in unfair
labor practices, it will be recommended that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondent discriminated as to the hire and tenure
of employment of James M. Pumpelly on September 1, 1944, and of Ralph King
on April 19, 1945. In order to effectuate the purposes and policies of the Act,
it will be recommended that the respondent offer James M. Pumpelly and Ralph
King immediate reinstatement to their former or substantially equivalent po-
sitions, without prejudice to their seniority and other rights and privileges. It
will also be recommended that the respondent make each of the above-named
employees whole for any loss of pay he has suffered by reason of the respondent's
discrimination against him, by payment to him of a sum of money equal to
the amount he normally would have earned as wages from the date of the dis-
charge to the date of the offer of reinstatement, less his net earnings during this
period 16
The recommendation that the respondent cease and desist from certain unfair
labor practices is also predicated upon the finding that the respondent's whole
course of conduct and, in particular, the discharges of Pumpelly and King,
discloses a purpose to defeat self-organization and its objects among the
employees. As the Circuit Court of Appeals for the Fourth Circuit has stated,
the "discriminatory discharge of an employee ... goes to the very heart of
the Act."" Because of the respondent's unlawful conduct and its underlying
purpose, the undersigned is convinced that the unfair labor practices found
are persuasively related to the other unfair labor practices proscribed, and
that danger of their commission in the future is to be anticipated from the
respondent's conduct in the past.19 The preventive purpose of the Act will be
thwarted unless the reuommended order is coextensive with the threat. In
order, therefore, to make more effective the interdependent guarantees of
Section 7, to prevent a recurrence of unfair labor practices, and thereby to
minimize industrial strife which burdens and obstructs commerce, and thus
effectuate the policies of the Act, it will be recommended that the respondent
cease and desist from in any manner infringing upon the rights guaranteed
in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the Trial Examiner makes the following :
CONCLUSIONS OF LAW
1. International Union of Operating Engineers, Local No. 550, A. F. L., is
a labor organization within the meaning of Section 2 (5) of the Act.
16 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge , and the subsequent necessity for seeking employment elsewhere . See Matter
of Crossett Lumber Company , 8 N. L R. B . 440. Monies received for work performed
upon Federal , State, county , municipal , or other work -relief projects shall be considered
as earnings . See Republic Steel Corporation Y. N. L. R B., 311 U. S. 7.
'O N. L. R. B. v. Entwhistle Manufacturing Company, 120 F. (2d) 532 , 536 (C C A.
4). See also , N. L. R. B. v. Automotive Maintenance Machinery Company, 116 F (2d)
350, 353 (C. C. A. 7), where the Circuit Court of Appeals for the Seventh Circuit observed:
"No more effective form of intimidation nor one more violative of the N. L. it . Act can
he conceived than discharge of an employee because he joined a union
17 N. L. R. B. v. Express Publishing Company , 312 U. S. 426.
CONTINENTAL PIPE LINE COMPANY 401
2. By discriminating in regard to the hire and tenure of employment of
James M Pumpelly and Ralph King, thereby discouraging membership in
International Union of Operating Engineers, Local No. 550, A. F. L., the
respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section
8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
Trial Examiner recommends that the respondent, Continental Pipe Line Com-
pany, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in International Union of Operating Engi-
neers, Local No. 550, A. F. L, by discriminatorily discharging or refusing to
reinstate any of its employees, or in any other manner discriminating in
regard to their hire or tenure of employment or any term or condition of
their employment ;
(b) In any other manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form labor organi-
zations, to join or assist International Union of Operating Engineers, Local
No. 550, A. F. L., or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection as guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action, which the Trial Examiner finds will
effectuate the policies of the Act :
(a) Offer to James M. Pumpelly and Ralph King immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges ;
(b) Make whole the above-named employees for any loss of pay they may
have suffered by reason of the respondent's discrimination against them by
payment to each of them of a sum of money equal to that which he normally
would have earned as wages but for the respondent's discrimination against
him, in the manner set forth in the Section entitled "The remedy" ;
(c) Post at its various stations throughout the McAllen District, Texas, copies
of the notice attached hereto, marked "Appendix A." Copies of said notice, to
be furnished by the Regional Director of the Sixteenth Region, shall, after being
duly signed by the respondent's representative, be posted by the respondent
immediately upon receipt thereof, and maintained by it for sixty (60) consecu-
tive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by the
respondent to insure that said notices are not altered, defaced, or covered by
any other material ;
(d) Notify the Regional Director for the Sixteenth Region in writing within
ten (10) days from the date of the receipt of the Intermediate Report, what
steps the respondent has taken to comply herewith.
692148-46-vol 67-27
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that unless on or before ten days from the receipt
of this Intermediate Report, the respondent notifies the said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen (15) days from
the date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington, D. C., an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof, Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file a
copy with the Regional Director. As further provided in said Section 33, should
any party desire permission to argue orally before the Board, request therefor
must be made in writing to the Board within ten (10) days from the date of
the order transferring the case to the Board.
C. W. WHITTEMORE,
Trial Examiner.
Dated January 7, 1945.