Delta Gas, Inc.

National Labor Relations Board - Board Decisions

Feb 19, 1987

282 N.L.R.B. 1315 (N.L.R.B. 1987)

DELTA GAS 1315
Delta Gas, Inc., a subsidiary of Louisiana Energy &
Development Corporation and - Joseph E.
Defley, Jr. Case 15-CA-9709
19 February 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 19 February 1986 Administrative Law Judge,
Richard J. Linton issued the attached decision. The
Respondent filed exceptions, a brief in support
thereof, and an answering brief to the General
Counsel's limited exceptions. The General Counsel
filed limited exceptions, a brief in support thereof,
and an answering brief to the Respondent's excep-
tions.
The, National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.
The judge found that the Respondent did not
violate Section 8(a)(1) and (3) when 'on 25 June
19852 the Respondent, through Vice President Ed
Daigle, demoted employee Anthony J. Duplessis
from his position as a measurement technician as-
sistant to a position as a laborer. The General
Counsel excepts to this finding. The General Coun-
sel contends that the Respondent has not met its
burden of showing by a preponderance of the evi-
dence that the demotion would have taken place
even absent Duplessis' protected conduct in suing
and assisting other employees to sue the Respond-
ent for overtime pay and/'or absent Duplessis' sus-
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy ns not to overrules an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings
The Respondent has also excepted to the judge's' finding that the Re-
spondent, through Supervisor Robert Cure, unlawfully interrogated em-
ployees about the purpose of their meeting at Attorney Defley's office
The Respondent excepts to this finding on the ground that the, judge
failed to consider the totality of the circumstances of the alleged interro-
gation Based on our review of all the material facts and our application
of the framework for analysis advanced in Rossmore House, 269 NLRB
1176 (1984), enfd 760 F 2d 1006 (9th Cir 1985), and reiterated in Sunny-
vale Medical Clinic, 277 NLRB 1217 (1985), we adopt the judge's conclu-
sion that Cure's repeated questioning about the purpose of the meeting
amounted to coercive interrogation of the employees involved, in viola-
tion of See 8(a)(1) In reaching this conclusion, we need not rely on the
judge's discussion of Vice President Ed Daigle's later threats as bolster-
ing the finding of an unlawful interrogation
2 All dates are 1985
pected union activities. We find merit in this excep-
tion.
As more fully described by the judge, sometime
prior to March, Duplessis asked his supervisor
Robert Cure about overtime pay. In March,
Duplessis contacted the Department of Labor re-
garding the Respondent's responsibility to pay
overtime. Duplessis also set up a meeting between
the Respondent's employees and Attorney Joseph
Defley on 28 May to discuss filing a lawsuit against
the Respondent to collect unpaid overtime wages.
Following the meeting, Duplessis and some of the
employees gathered outside the attorney's office.
Duplessis, 'along with the other employees, was ob-
served by Supervisors Cure and Williams as they
drove by. The groups waved at each other. In the
days that followed, Cure unlawfully interrogated
several employees concerning the purpose of the
meeting and indicated his understanding that they
intended to sue the Company to obtain overtime
pay.
On 21 June employee John C. Ragas telephoned
the Respondent's vice president, Ed Daigle, to
report that a week's worth of 'gas-flow charts for
one of the stations was defective because the clock
mechanism had been wound too tightly. Daigle
asked who was responsible and why the problem
had gone uncorrected for a week. Ragas replied
that Duplessis was responsible for checking the
meter. Daigle then said, referring to Duplessis,
"Tell your union-leading brother-in-law to stay out
of the lawyer's office, and spend more time with
his charts, or I'm going to have to start looking for
more help."3
On the morning of 24 June, Duplessis, accompa-
nied by employee Peter Williamson, drove a com-
pany boat to change charts in Joseph Bayou and
South Pass. As Duplessis was en route to a Texaco
platform, one of the 'engines threw a rod. His su-
pervisor Robert Cure later inspected the engine
and observed that a connecting rod had come out-
side the block. Cure ' reported the incident to As-
sistant Vice, President Raber and ' then to Vice
President Daigle. Daigle testified, he considered
this to be the ,"final straw" and he told Cure' that
he did not want Duplessis driving the boat again
"and that means he can't do measurement work."
Both Cure and Daigle testified, they believed
Duplessis was operating the boat at excessive throt-
tle, causing ' it to blow out. Several weeks earlier
3 The Respondent's employees had not initiated a union organizing
campaign at the time these words were uttered It is reasonable to infer,
based on these words, that Daigle interpreted the visit to Attorney De-
fley's office as an effort to begin organizing a union and that he believed
Duplessis was a leader in such an effort A union organizing effort did
begin in July.
282 NLRB No. 168
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Duplessis had pushed the boat to full throttle while
Cure was a passenger. At that time, Cure told him
to slow it down to three-quarters throttle and
Duplessis obeyed. Cure had previously relayed this
incident to Daigle. Duplessis admitted that just
before the engine exploded he was operating it at
better than three-quarters throttle, despite his
knowledge that the engine had been knocking and
was apparently in further need of repair.4 After
this incident, the engine had to be junked at an esti-
mated monetary loss of $2200.
The following day when Duplessis returned to
the office at the end of his shift, Cure told him to
park his company truck and be prepared to work
the next day as a laborer.5 When Duplessis asked
for a reason, Cure told him that he did not have to
give him one. Duplessis then asked Cure to call
Daigle and get one and Cure replied, "Ed Daigle
said he didn't have to give [him] no goddamn
reason." Duplessis then asked for and received per-
mission to drive home to remove some personal
possessions from the truck. When he returned an
hour later, he slapped a copy of the overtime law-
suit on Cure's desk and told him, "This is why I'm
being demoted." That evening Cure told Daigle
about receiving a, copy of the lawsuit. Both Daigle
and Cure credibly testified that this was their first
knowledge of the lawsuit.
A week later, on 2 July, Cure called Duplessis to
his office and, presented him with a memorandum
dated 25 June, prepared by Assistant Vice Presi-
dent Raber pursuant to Daigle's instructions. The
memo specified three reasons for his demotion. The
reasons cited were:
1) Failure to correctly load charts and deter-
mine proper operation of measurement equip-
ment at the LSGC Pend Oreille meter station
#1-1145-1 resulting in no record of gas flow
during the period of April 16, 1985 thru,May
1, 1985 and loss of revenue to the Company.
2) Failure to properly service, maintain, and
check the Delta Gas Shell Pipeline meter sta-
tion #2120-005 resulting in the clock running
down and no record of gas flow during the
period of June 12, 1985 thru June 18, 1985 and
loss of revenue to the Company.
3) Mis-use of Company workboat by over-
speeding engines after being warned not to by
Operations Supervisor, Robert Cure, and re-
sulting in damage to a Johnson 115 H.P. out-
4 The VRO pump had been replaced on 31 May when the engine was
put into the shop for repairs because of a knock The engine continued to
knock even after the repair Duplessis told Cure that the problem had not
been remedied Cure said he would investigate
5 Although Duplessis' pay was not reduced , the transfer was a demo-
tion from a job progression in skilled work to digging ditches
board motor and great repair expense to, the
Company.
With regard to the first reason , the judge found
that a faulty clock was responsible for the failure
of recordation on the charts; J. C. Ragas, not
Duplessis, was responsible for monitoring this loca-
tion; Daigle did not consider Duplessis as having
any responsibility for the faulty charts; and that by
instructing or approving Raber' s listing of this inci-
dent in the memo, Daigle evidenced "an intent to
alter the facts in a blatant attempt to increase the
odds that the demotion could not be successfully
attacked."
The judge found that the citing of the second
reason was also an exercise in "pad[ding] the list."
The judge found that Ragas reported the problem
with the Shell charts on 21 June when he tele-
phoned Daigle to report the clock had been wound
too tightly and recorded only 4 hours of gas flow
and then stopped. Daigle asked who was in charge
of the station and Ragas replied, "Duplessis."
Daigle then made the statement, discussed earlier,
"Tell your union-leading brother-in-law to stay, out
of the lawyer's office . . . ." Ragas credibly testi-
fied that both he and Duplessis had tried unsuc-
cessfully on several occasions during the week of
12-18 June to get into the Shell station to check
the chart but an electronic gate, which locked
automatically, had been installed 3 months previ-
ously and they could not get in unless admitted by
a Shell employee. Ragas reported the difficulty to
Cure. The judge did not credit Daigle's testimony
that he did not learn of the problem until a 12
August conference with Duplessis. Rather, he
found that Daigle learned of the problem from
Cure before 24 June. Consequently, the judge
found that by listing the Shell charts as a reason
for the demotion, Daigle was engaging in "a delib-
erate effort to nail Duplessis because of his protect-
ed actions."
At the hearing, Daigle advanced three more rea-
sons for the demotion. The judge rejected them as
pretextual. We agree. The judge also found that
Duplessis' protected conduct, leading the Respond-
ent to the erroneous belief that Duplessis was lead-
ing a union organizing campaign, was a motivating
factor in the Respondent' s decision to demote him.
Nevertheless, the judge found that Daigle "reason-
ably blamed" Duplessis for the engine's destruction
and concluded that the Respondent carried its
burden of showing that notwithstanding Duplessis'
protected conduct, and Daigle's erroneous suspi-
cion of his union activities, the Respondent would
have demoted him. The judge based this conclu-
sion on two factors: Daigle's testimony that
DELTA GAS 1317
Duplessis' destruction of the boat engine was the
"final straw" and that he could not take "any more
of that"; and his finding that the demotion was a
measured action in which Daigle balanced the
Company's needs against his personal sense of re-
sponsibility to Duplessis after having hired him.
The Board held in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982),6 that once the General
Counsel makes a prima facie showing that protect-
ed conduct was a motivating factor in an employ-
er's action against an employee, the burden shifts to
the employer to demonstrate that it would have
taken the same action even in the absence of the
protected conduct. An employer cannot carry its
burden of persuasion by merely showing that it had
a legitimate reason for the action, but must show
by a preponderance of the evidence that the action
would have taken place even absent the protected
conduct.? A judge's personal belief that the em-
ployer's legitimate reason was sufficient to warrant
the action taken is not a substitute for evidence that
the employer would have relied on this reason
alone.8 If an employer fails to satisfy its burden of
persuasion, the General Counsel's prima facie case
stands unrefuted and a violation of the Act may be
found.9
We agree with the judge that the General Coun-
sel has established a prima facie case that the Re-
spondent demoted Duplessis because of his protect-
ed concerted activities, i.e., his efforts to obtain
overtime pay; the Respondent's belief that Duples-
sis was engaged in union activities; and the Re-
spondent's union animus, as evidenced by its un-
lawful interrogations and unlawful threats of ad-
verse consequences. We also agree with the judge's
finding that all but one of the Respondent's assert-
ed reasons for the demotion were pretextual. We
are not, however, persuaded that the Respondent
demoted Duplessis because of the boat engine's de-
struction. In this regard, we note that the judge
failed to discuss certain relevant factors that dem-
onstrate that Duplessis was not demoted because of
the damage to the boat engine.
As previously noted, the Respondent refused to
give Duplessis any reason for the demotion on 25
June. A failure to mention to an employee an as-
serted reason for an adverse action at the time the
action is taken can indicate a discriminatory motive
6 Approved in NLRB Y Transportation Management Corp, 462 U S
393 (1983)
' Roure Bertrand Dupont, The, 271 NLRB 443 (1984) See also Centre
Property Management , 277 NLRB 1376 (1985)
s Bronco Wine Co, 256 NLRB 53, 54 fn 8 (1981)
0 See, e g, Bronco Wine Co, supra
for the demotion. 10 Then, a week later, Cure belat-
edly presented Duplessis with a memo purporting
to give the three reasons relied on in reaching the
decision, two of which were clearly pretextual.
Then, at the hearing, the Respondent attempted to
bolster its defense with three additional pretextual
reasons. The use of prextual reasons to support de-
moting a suspected union adherent strongly sug-
gests that the reasons are advanced to mask unlaw-
ful conduct.11 Pretext cannot hide unlawful
motive. This is particularly true here. Daigle an-
nounced his antiunion position only 3 days before
the demotion by threatening employees with ad-
verse consequences if a union came in and threat-
ening Duplessis in particular by telling J. C. Ragas
to "Tell [his] union leading brother-in-law to stay
out of the lawyer's office or [Daigle would] have
to start looking for more help."
The one remaining reason, ostensibly legitimate,
was not shown to have caused the decision to
demote Duplessis. We reject the Respondent's al-
leged reliance on the boat engine incident. This de-
fense is undermined by the fact that there was ab-
solutely no investigation into the cause of the en-
gine 's destruction. Duplessis testified that a co-
worker was accompanying him at the time of the
accident, yet there is no evidence that the Re-
spondent contacted Duplessis or the coworker to
verify what happened. Nor is there any evidence
that the Respondent took the engine to the repair
shop to determine the cause of failure. In addition,
the engine had a history of trouble and Cure was
aware that it continued to knock even after its
pump was replaced on 31 May. Moreover, the Re-
spondent did not offer any explanation why it did
not conduct an investigation.
Finally, the judge' reliance on Daigle's testimony
that Duplessis' destruction of the boat engines was
the "final straw" is misplaced. By the judge's own
analysis, all of Daigle's other asserted reasons were
pretextual. The "final straw" is thus the only straw
and it did not, in our view, form the basis of the
Respondent's decision to demote Duplessis.12
Based on the foregoing, the Respondent has
failed to carry its burden under Wright Line of per-
10 See Great Chinese American Sewing Co Y NLRB, 578 172d 251,
254-255 (9th Car 1978)
" Louisiana Council 17, AFSCME, 250 NLRB 880, 886 fn 38 (1980)
12 The judge's conclusion that Duplessis had been warned about safe
engine speed and exceeded that speed overstates the testimony Cure's
warning to Duplessls was not clearly a general instruction not to exceed
three-quarters throttle nor was he told that it was a restriction to protect
the engine
In response to our dissenting colleague, we note that he presumes ex-
actly what the Respondent failed to prove, i e , that at the time of the
demotion the Respondent had a reasonable basis for concluding that
Duplessis had abused the boat and that his operation of the boat caused
the engine damage
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suading , by a preponderance of the evidence, that
it would have demoted Duplessis in the absence of
his protected concerted activity and Daigle 's belief
that he was engaged in union activity . According-
ly, we find that the demotion violated Section
8(a)(3) and (1) of the Act.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
5.
"5. By unlawfully demoting Anthony J. Duples-
sis on 25 June 1985 , the Respondent engaged in
unfair labor practices within the meaning of Sec-
tion 8 (a)(3) and (1) of the Act."
AMENDED REMEDY
Having found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act, we shall order that
it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the poli-
cies of the Act.
Having found that A. J. Duplessis was unlawful-
ly demoted on 25 June 1985, we shall order that
the Respondent offer to Duplessis full reinstate-
ment to his former position or, if that position no
longer exists , to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges . We shall also order the Respondent
to remove from its files any reference to A. J.
Duplessis ' demotion , and to notify him in writing
that this has been done and that evidence of this
unlawful conduct will not be used as a basis for
future personnel action against him. i 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Delta Gas, Inc., a subsidiary of Louisiana
Energy & Development, New Orleans, Louisiana,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Insert the following as paragraph 1(c) and re-
letter the subsequent paragraph.
"(c) Demoting or otherwise discriminating
against any employees for engaging in union or
protected concerted activity."
2. Insert the following as paragraphs 2(a) and (b)
and reletter the subsequent paragraphs.
"(a) Offer Anthony J. Duplessis immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
'a Backpay has not been awarded inasmuch as Duplessis maintained
the same wage rate after the demotion
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
"(b) Remove from its files any reference to the
demotion of Anthony J. Duplessis and notify him
in writing that this has been done and that evi-
dence of this unlawful conduct will not be used as
a basis for future personnel action against him."
3. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON, dissenting in part.
In agreement with the judge and contrary to my
colleagues, I would find that the Respondent has
established by a preponderance of the evidence
that even in the absence of Duplessis' concerted ac-
tivities, the Respondent would have reassigned him
for having operated a boat in a manner which re-
sulted in approximately $2200 in damage to the
boat's engine. The Respondent, at no loss in pay,
merely gave Duplessis an assignment which did not
involve the risk that Duplessis would abuse equip-
ment with a resulting substantial, additional loss.
On 24 June 1985, Duplessis was operating the
company boat when the portside engine threw a
rod or piston through the engine block. As a result,
the engine had to be junked with a monetary loss
estimated at $2200. The Respondent's vice presi-
dent of engineering operations Ed Daigle and its
operations supervisor Robert Cure believed that
Duplessis had been "overspeeding" (operating at
excessive throttle) the boat. They based this belief
on the fact that several weeks earlier, with Cure
riding as a passenger, Duplessis pushed the boat to
full throttle. Cure instructed Duplessis to slow
down to three-quarters throttle, which instruction
Duplessis followed. An employee, J. C. Ragas, tes-
tified that he operates the Respondent's boats at no
more than three-quarters engine speed and that an
engine can tear apart if the boat is operated at full
throttle. Duplessis acknowledges that he was oper-
ating the boat at more than three-quarters throttle
"not quite all the way open" when the engine ex-
ploded Further, he admits he did so while he was
aware the engine was knocking and apparently in
need of repair. The day after the engine exploded,
Duplessis was assigned to a construction crew to
work as a laborer digging ditches, an assignment
that did not involve operating boats '
Ordinarily, the mere reassignment, at no loss of
pay, of an employee under these circumstances
would be regarded as a relatively mild move
simply designed to ensure that no other equipment
' Duplessis would not be able to continue performing his previous
measurement work without operating a boat because many of the Re-
spondent's stations are located in bays and can be reached only by boat
DELTA GAS
was operated in a way that migh `result`innth ;=R =
spondent suffering a further loss.2 Indeed, the Re-
spondent in the past had taken much more severe
action when, in somewhat similar circumstances, it
discharged Raymond Antoine in July 1984 for se-
verely damaging a truck engine while driving it
without oil and thereby creating a $2600 repair bill.
It is true that here the Respondent was not en-
tirely forthcoming in its explanation for the demo-
tion. If it had been, it would, in all likelihood, not
be in its present difficulty. It did initially refuse to
disclose to Duplessis the reason for his reassign-
ment. Although I am sure that Duplessis in fact
fully understood why he was being transferred to
other duties, it would have been much better had
the Respondent not refused to state the reasons im-
mediately. Next, when it did state reasons for the
change, in addition to citing the wrecking of the
boat's engine, it stated reasons which the judge
correctly concluded were pretextual and which led
the judge to the conclusion that the Respondent
was partially motivated by Duplessis' protected ac-
tivities in its actions toward him.'
However, even accepting the view that the Gen-
eral Counsel has met her burden to show that
Duplessis ' concerted activities in part motivated
the reassignment, the Respondent has fully, demon-
strated that the relatively mild action taken against
Duplessis would have been taken even in the ab-
sence of his concerted activities. Duplessis had op-
erated a boat in a manner which resulted in exten-
sive damage to the motor. The Respondent took
minimal measures to ensure that he did not damage
additional equipment. The action was taken in-
stanter when the Respondent, became aware of
Duplessis' mishap. Further, the actions were con-
sistent with, and less than, a previous action against
an employee who wrecked a truck engine. In these
circumstances, in agreement with the recommenda-
tion of the judge, I would dismiss the complaint al-
legations relating to Duplessis' demotion.
z Because Duplessis was being reassigned at no loss of pay , and not
discharged, the need for further investigation prior to taking the action is
substantially reduced The Respondent had ample evidence on which to
base a belief that if Duplessis continued to operate the boat, it ran a high
risk of damage to its equipment.
APPENDIX
1319
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT coercively question you about
your protected concerted activities.
WE WILL NOT threaten to fire you for engaging
in union or other protected concerted activities.
WE WILL NOT demote or otherwise discriminate
against you for engaging in union or protected con-
certed activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Anthony J. Duplessis immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
WE WILL remove from ' our files any reference to
the demotion- of Anthony J. Duplessis and notify
him in writing that this has been done and that evi-
dence of this unlawful conduct will not be used as
a basis for future personnel actions, against him.
DELTA GAS,' INC., A SUBSIDIARY OF
LOUISIANA ENERGY & DEVELOP-
MENT CORPORATION
Clement J. Kennington, Esq., for the General Counsel.
R. Pepper Crutcher Jr., Esq., Everett H. Mechem, Esq.,
and with them on brief Frederick S. Kullman, Esq.
(Kullman, Inman, Bee & Downing), of New Orleans,
Louisiana, for the Respondent.
Joseph E. Defley Jr., Esq., of Port Sulphur, Louisiana, for
himself.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This
case was tried before me in New Orleans, Louisiana, on
16-17 September 1985 pursuant to the 14 August 1985
complaint issued by the General Counsel of the National
Labor Relations Board through the Acting Regional Di-
rector for Region 15 of the Board. The complaint is
based 'on a charge, subsequently amended, filed 5 July
1985 by Joseph E. Defley Jr. (Defley or Charging Party)
against Delta Gas Inc., a subsidiary of Louisiana Energy
& Development Corporation (Respondent or Delta
Gas). i
In the complaint the General Counsel alleges that the
Respondent violated Section 8(a)(1) of the Act-by inter-
rogating and threatening employees and Section 8(a)(3)
and (1) of the Act on 25 June by demoting Anthony J.
Duplessis from the position of assistant measurement
technician to laborer because of Duplessis' union and
other protected activities. At the hearing the General
Counsel announced that the demotion allegation, and the
General Counsel's evidence on the subject, was based on
the Respondent's belief that Duplessis and other employ-
ees had engaged in union activities, and that the General
Counsel's case was not premised on actual union activi-
ties (1:40-44).2
By its answer Respondent admits certain factual mat-
ters but denies violating the Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Respond-
ent, I make the following
FINDINGS OF FACT
1. JURISDICTION
A Louisiana corporation with offices in New Orleans,'
Louisiana, and a facility at Homeplace, Louisiana, Re-
spondent transports and distributes natural gas. During
the past 127 months Respondent derived gross revenues
exceeding $250,000 from its business operation, and
during the same period Respondent purchased and re-
ceived goods and materials exceeding $50,000 in value
from points located directly outside Louisiana. Respond-
ent admits and I find that it is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED ,UNFAIR LABOR PRACTICES
A. Introduction
1. Nature of Respondent's operation
As mentioned, Delta Gas transports and distributes
natural gas. Although the record does not contain a de-
tailed description of Respondent's business, it appears
that Respondent's business includes gathering natural gas,
owning some pipeline, and distributing gas. Respondent's
i All dates are for 1985 unless otherwise indicated
2 References to the two-volume transcript of testimony are by volume
and page
vice president of engineering and operations since April
1982 has been Ed Daigle (1:58). Daigle describes the
Company as "a small gas system" which, to survive in
today's (deregulated) natural `gas market, must intercon-
nect with a big pipeline company "which can transport
your gas for you." (1:75.)
Tennessee Gas Pipeline Company (TGP) is a large or-
ganization, and Respondent's system interconnects with
TGP at several points • (1:75).3 At these points gas will
flow from Respondent to TGP and, from TGP to Re-
spondent (1:75). As the record reflects, Respondent does
a similar business with other firms, including Shell Pipe-
line Company. The flow of gas is measured at these
interconnected points.
Most of the measurements are done by use of a, clock
mechanism that has arms, using different colors of ink, to
record the measurements on round paper charts (2:448;
R. Exhs. 10, 11, 12). Measurement lines are made on the
charts when the mechanism rotates. The mechanism ro-
tates because the clock is wound, by hand, to run for up
to 8.5 days (2:428-431). The clocks, of course, must be
rewound and the charts changed on a timely basis
(2:355).
Respondent's employees who set the clocks, take the
measurements , and change the charts are called measure-
ment technicians. The measurement technician even re-
views the charts before they are forwarded to Respond-
ent's New Orleans office (2:494). It is clear that Re-
spondent considers the measurement technician's func-
tion as being very critical. Indeed, Daigle even testified
that Respondent considers measurement technicians "at
the supervisory level" (2:496).4
The firms compensate each other based on the meas-
urements made on the flow of gas at the interconnect
points (2:448). On occasion, such as when a malfunction
has occurred with,the clock-chart mechanism, Respond-
ent has to estimate the amount of, gas that has flowed
and, therefore, the amount of money it must bill its cus-
tomers (1:91-93, 206-208; 2:518). Daigle testified that
there are several methods used to estimate,. but that he
tries to avoid the necessity for doing so because of the
adverse impact on customer relations (2:519-520, 524-
525): To avoid or minimize this problem, Daigle testified,
employees are to inspect the charts at least once a week
between chart changes and preferably even more fre-
quently (2:449).
2. The Homeplace staff
A. J. Duplessis, the alleged discriminatee, was hired by
Daigle 25 January 1985 (2:329, 486). Duplessis had no
prior experience in gas measurement work (2:329). He
3 There also is a reference in the record to TGT or Tennessee Gas
Transmission Company (2 475) I note that TGT, a subsidiary of Tenneco
Inc , has certain administrative functions relative to Tennessee Gas Pipe-
line Company (TGP) Brown's Directory of North American and Interna-
tional Gas Companies at 230 (1983 ed )
4 There is no contention that the measurement technicians are statuto-
ry supervisors It appears that Daigle's comment is based on his testimo-
ny that the technicians, rather than their superior, ate to review the
charts (2 496) and on the evidence showing that J C Ragas, a measure-
ment technician, was designated by Daigle to tram A. J Duplessis (1 82,
118, 2329)
DELTA GAS
was hired as a measurement technician assistant-m-a
helper (2:329 , 532). Robert R. Cure supervised Ragas5
and Duplessis ( 1:112; 2:531 ). Cure is Respondent 's oper-
ations supervisor at the Homeplace facility and he re-
ports to Daigle, whose office is in New Orleans (1:59-61,
112; 2:523, 530). Also reporting to Daigle from Home-
place is Lawrence Williams, gas superintendent (1:60,
61). I
The Homeplace facility is about 50 miles south of New
Orleans (2:523). Homeplace is not shown on the usual
map or atlas , but it is located about 2 miles south of Port
Sulphur, Louisiana (1:135, 213 ; 2:546).
In addition to Supervisors Cure and Williams, Re-
spondent has 16 employees at the Homeplace facility
(1:72). It appears that most of the employees report to
Williams, with Cure supervising the gas measurement
fanction.6
On, 24 June Daigle decided to transfer Duplessis from
gas measurement '(1:87; 2 :458, 541-542), and he directed
his assistant , John Raber,7 to issue a memo to Duplessis
outlining the reasons for his transfer (1:63-64 ; 2:504).
The transfer was described in the memo as a demotion
(G.C. Exh . 3) and was a demotion in fact. Duplessis was
demoted to the position of laborer (G.C. Exh . 3; 2:330).
Even though his pay rate was not reduced ' (2:406, 472,
522), he now digs ditches with a shovel -as part of the
labor crew (2:409). As Duplessis testified , there is a big
difference between the skilled work of a measurement
technician and the manual labor of digging ditches
(2:407).
Raber's memo and other details concerning Duplessis'
work and demotion are treated later.
3. Duplessis sparks action to be paid for overtime
worked
Beginning i July Respondent changed from paying its
employees a salary and began paying them on an hourly
basis with payment for overtime worked (2:525-526,
528). Previous to that date the employees would not be
paid any money over the amount of their salaries when
they worked overtime (1:211; 2:330).8
Daigle testified that for a couple of years before May
1985 individual employees would inquire why they were
not being paid for overtime }vorke'd (2:490). According
to Daigle, for a long time he had felt that the employees
should be compensated on an hourly basis and be paid
for overtime worked, and in mid.-January 1985 he so rec-
ommended to his superior, J. Q. Delap, Respondent's
president (2:416, 491).
Duplessis testified that he first worked overtime about
1 March, and that on two or three occasions before that
he had asked Supervisor Cure why the employees were
s More than one employee bears the name Ragas When I refer to
Ragas, I mean J C Ragas. Any others will be further identified.
6 It is clear that during the relevant period only Cure, Ragas, and
Duplessis were involved with gas measurement at Homeplace (2.242, 434,
531) The other employees appear to work for Williams in construction
or other service work.
' Raber works in the New Orleans office as senior engineer reporting
to Daigle (1.62) Raber did not testify
9 References in the record to overtime work presumably refer to work
in excess of 40 hours a workweek
1321
not paid'for overtime work. Cure simply said, in effect,
that it was company policy not to pay (2:331). In March
Duplessis contacted one Bruce Clark with the Wage-
Hour Division of the U.S. Department of Labor. After
that conversation Duplessis suggested to , employees
Mervin Riley and Erroll Turner that they call Clark
themselves because it appeared that the law entitled all
of them to be paid for any overtime worked (2:332).
Duplessis thereafter contacted a local attorney, Charg-
ing Party Joseph E. Defley Jr. of Port Sulphur, concern-
ing the overtime matter (2:332). Defley told Duplessis he
would meet with the employees (2:333). Duplessis in-
formed the employees, and in the late afternoon of Tues-
day, 28 May, 14 current employees and 2 former em-
ployees met for an hour or more with Attorney Defley
at'the latter's Port Sulphur office:"
The parties stipulated that on Friday, 21 June, suit was
filed by Defley in the case of Duplessis et al. V. Delta Gas
Inc. and Louisiana Energy & Development Corporation,
Civil Action No. 85-2754, before the U.S. District Court
for the Eastern District of Louisiana (1:99; 2:544). The
complaint, in evidence as A. Exh. 2, reflects that the
plaintiffs sued "to recover unpaid minimum wages and
unpaid overtime compensation under the provisions of
the Fair Labor Standards Act of 1938 as amended
" Further reference to this subject' is made below.
B. Allegations of Interference, Restraint, and Coercion
1. Background
Charging Party Defley's law office is located at Port
Sulphur on Highway 23. Thus, as one drives between
Respondent's New Orleans and Homeplace offices, he
drives past Defley's office, which is a mile or so north
(toward New Orleans) of the Homeplace facility (1:135,
196, 213; 2:546). As a photograph in evidence reflects
(G.C. Exh. 7), Defley's office apparently is situated in his
home. t ° A. J. Duplessis arranged with Attorney Defley
for the employees to meet with Defley on 28 May and
told several employees (1:126, 127, 217; 2:313, 332-333).
It appears that Mervin Riley and Errol Turner thereafter
informed some other employees of the meeting (1:127).
At one point some of the employees had stepped out-
side Defley's office, either at a smoke break or at the end
of the meeting, and they observed Supervisors Cure and
Williams drive by on the highway. The groups waved at
each other. t t Cure acknowledged the incident, but testi-
0 Although some employee witnesses vaned from pretrial statements
indicating a later date, it is clear that 28 May is the correct date based on
the sequence of events acknowledged by Respondent Employee August
Mackey's pretrial statement (R Exh 6), relied on by Respondent to show
that the meeting with lawyer Defley occurred near mid-June, obviously
places work events so late that they would have occurred during his va-
cation of 24 June to 9 July I have considered, and rejected, Supervisor
Cure's testimony (to be discussed in more detail later) that he observed
the employees gathered at Defley's office on I I June as he and Williams
returned to Homeplace from New Orleans
10 A sign in the front yard near the highway announces the law office
of Attorney Defley (1 130)
11 Cure testified that Defley's home office sits about 200 feet off the
highway (2:545) Duplessis was one of those in the employee group
waving (2:333-334)
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
feed that it occurred on 11 June as he and Williams re-
turned from New Orleans and not on some earlier date
(2:546-549, 556). What Cure observed, in, addition to sev-
eral of Respondent's employees, was about a half dozen
Delta Gas trucks parked at the office as well as some
personal vehicles. Cure concedes that he expressed to
Williams, "I wonder what the hell is going on." (2:557.)
Williams did not testify.
Cure and Williams apparently did pass by Defley's
office on 11 June, but I find that the occasion they ob-
served the employees and Delta Gas trucks there was on
28 May, not 11 June.
Vice President Daigle testified that in late May Super-
visors Cure and Williams informed Daigle and Raber
that the Delta Gas employees were complaining about
not being paid hourly plus' overtime (1:65; 2:415). Cure
confirms that he so reported to Daigle (2:558-559).
Daigle instructed his supervisors to arrange a meeting
for him and Raber to travel to Homeplace and meet with
the employees on Friday, 31 May (1:65-66; 2:415-416).
Before we pass to the meeting of 31 May, it is impor-
tant that we notice the sequence of events. It is undis-
puted that in late May Supervisor Cure and Williams
conducted a meeting with all 'Homeplace employees.
Daigle so testified (2:415).12 Ragas testified that the su-
pervisors spoke to them about keeping the warehouse
clean and warned the employees that they could be pe-
nalized if tools were lost (1:125).
Ragas spoke up and asked why the supervisors always
talked about penalizing employees and never about treat-
ing them to a barbecue or steak dinner whenever the em-
ployees did something good. From this point the discus-
sion turned to complaints by employees that they, had to
work overtime without getting paid for it. Cure and
Lawrence responded that they could not do, anything
about the overtime policy, but that they would raise that
subject with the New Orleans office (1:125-126).
During the discussion about overtime, Ragas further
testified, Cure told the group that Delta Gas had some of
the best lawyers around, and if the employees wanted to
fight for overtime they could get themselves a lawyer
and "go for it." 13 As Ragas testified, "A couple of days
later, we went for it" by meeting with Attorney Defley
on 28 May (1:125, 126).
In light of this sequence, I find that the meeting Super-
visors Cure and Williams held with employees occurred
about Friday, 24 May. That places the supervisory meet-
ing 4 days before the Defley meeting, but as the "couple
of days" mentioned by Ragas is an approximating phrase,
and as 2 days would place the company meeting on a
Sunday, I' think it far more logical that the meeting oc-
curred on the last previous workday, Friday, 24 May.
Moreover, I note that the company meeting Daigle
scheduled for 31 May was for a Friday. Thus, I find that
the meeting Supervisors Cure and Williams conducted
occurred about 24 May.
12 Cure mentions such a meeting but does not place the approximate
date (2 550) I find that he was referring to this late May 1985 meeting
13 Cure did not flatly deny this, and testified that a walkout was dis-
cussed (2.550) I do not credit Cure He appeared to me to'be an unreli-
able witness Employee August J Mackey affirms the essentials of Ragas'
testimony on this subject (2 294-295)
2. Events leading to meeting of 21 June 1985
a. Complaint paragraphs 7(a), (b), and (c)
As employees arrived for work at the Homeplace
warehouse on 29 May, the morning after Supervisors
Cure and Williams observed their employees at Attorney
Defley's office, Cure began interrogating some of the
employees about their meeting at Defley's office.14 Thus,
Ragas testified that Cure said , he had seen them at De-
fley's' office and asked him what went on. Ragas replied,
"Nothing that I know of," Cure persisted and Ragas
said , "I don't know nothing about nothing" (1:135-
l36).15 Ragas places employees August Mackey and
Gerald Ragas at this conversation (1:136). Mackey de-
scribed a similar conversation , but Gerald Ragas, also a
witness, did not.
Serviceman August J. Mackey testified that Cure ap-
proached him and Ragas that morning and asked what
they had beendoing at the lawyer's office. Ragas re-
sponded that it was none of Cure's business . To this
Cure stated that he knew why Ragas and Mackey were
there but Why, he asked, was (former employee) Wilson
Madison.16
Trenching machine operator Mervin J. Riley Jr. de-
scribed a similar interrogation by Cure as occurring the
morning of 29 May.17 Cure came up and, saying that he
was "just curious," stated that' he knew what the other
employees were doing (at Defley's), but why was
(former employee) Madison there? Riley replied that he
did not know (2:317).
Ragas also testified that about 2 days later (31 May),
and in the presence of some employees ( whose names
appear garbled in the record) in the warehouse, Cure
again asked Ragas what went on at the lawyer's office."8
Ragas answered that he did not know and that Cure
probably knew more than Ragas (1:136-137). No other
witness appears to have testified about this specific inci-
dent.
Intervening at this point is the meeting Daigle held
with employees on 31 May. Rather than interrupting the
discussion of Cure's alleged conduct, I shall defer dis-
cussing the 31 May meeting for a moment.
As amended over objection at the hearing (1:7, 12, 17),
complaint paragraph 7(c) alleges that at the Delta
Marina on or about 13 June Respondent, through Super-
visor Cure, "orally interrogated an employee about the
union and/or protected concerted activities of its em-
ployees." Testifying in support of this allegation, Ragas
asserted that as he and Cure were en route by' company
truck to the Delta Marina about 5 a.m. on 13 June Cure
again asked him about the matter: "You know, I'm curi-
14 Complaint par 7(a) as amended at the hearing ( 1 7, 12, 17)
is A couple of hours later Supervisor Williams asked Ragas what had
happened at Defley's office and Ragas replied that if Williams would
have been there he would know (1:136) There is no complaint allegation
concerning this and Williams did not testify
16 Wilson Madison, one of the plaintiffs named in the lawsuit Defley
filed (Jt Exh 2), was a former employee and one of those present at De-
fley's office (1128-129)
17 Riley works under Supervisor Williams (2-313)
18 Complaint par 7(b), as amended at the hearing , alleges interrogation
as occurring on 3 or 4 June The slight variance is immaterial
DELTA GAS
ous, what went on at the lawyer's office? I hear you all
are going to sue the company " Ragas said Cure knew
more than he did "Well, evidently you're not going to
tell me anything," commented Cure. To this Ragas re-
plied, "No, I'm sure not." (1:137-138)
About an hour later, at a platform of Texaco Oil Com-
pany, a similar conversation occurred. This time Ragas
added, "You must be our inside informant," but he told
Cure, "I don't know nothing about nothing." This con-
versation ended as the earlier one, with Cure observing
that Ragas evidently was not going to tell him anything,
and Ragas confirming that to be the case (1:139).19
Respecting these alleged incidents, Supervisor Cure
testified that although he may have commented to Ragas
about seeing him and the Delta Gas trucks at Defley's,
he never asked any employee why they were there
(2:549, 557). This is so even though, as Cure testified, "I
knew that something was going down but I didn't know
what it was." (2:558)
Cure testified unpersuasively, whereas Ragas, Mackey,
and Riley testified in a believable fashion. Given Cure's
admission of his possible comment to Ragas, as well as
his acknowledged curiosity about what was happening at
Attorney Defley's, it is clear that the testimony of the
employees is far more plausible than Cure's version. Ac-
cordingly, I find that on 29 and 31 May, and again on 13
June, Supervisor Robert R. Cure interrogated employees
concerning the purpose of their meeting at Attorney De-
fley's office on 28 May.
As stipulated by the parties, the employees did not
sign any union cards or attend any union meetings before
July. Allegations in the complaint concerning union ac-
tivities rest, explained counsel for the General Counsel,
on Respondent's suspicion, in turn based on comments
by Daigle, that the employees were engaged in union ac-
tivities (1:40-44). We shall come to Daigle's asserted
suspicions/comments shortly.
b. Conclusions regarding Cure's interrogations
Respondent argues that the evidence on Cure's inquir-
ies, even if credited (as I have done), does not rise to the
level of a violation In light of Cure's repeated question-
ing about the purpose20 of employees meeting at lawyer
Defley's office and-as we shall see shortly-the threats
made by Vice President Daigle'21 I find that Respondent
violated Section 8(a)(1) of the Act by Supervisor Cure's
interrogating employees concerning the nature of their
protected concerted activity
i0 Respondent's motion to strike Ragas' testimony , in keeping with Re-
spondent's objection to the amended allegation, was denied (1 141)
20 A different result might be indicated if Supervisor Cure had focused
his inquiry on why employees were using Delta Gas vehicles to meet at
Attorney Defley's office Instead, Cure, I find, sought to confirm his sus-
picion that the employees were meeting there to proceed as he had sug-
gested-to get a lawyer and sue for unpaid overtime
21 Although the threats came later, they supply additional and rein-
forcing coercive force to Cure's interrogations
3. Events of 21 June 1985
1323
a. Complaint paragraphs 6(a) and (b)
Complaint paragraph 6(a) alleges that about 21 June
Respondent, through Daigle at the Homeplace facility,
orally "threatened an employee by telling said employee
that Respondent would discharge another employee be-
cause of the other employee's union and/or concerted
activities."
Ragas testified that about 2 p.m. on 21 June he tele-
phoned Daigle and reported that the charts, delivered to
the New Orleans office that day, for the Nairn, Louisi-
ana station of Shell Pipeline Company were defective.
The defect resulted, Ragas explained, because the clock
mechanism had been wound too tight when set on 12
June. As a result, continued Ragas, the clock registered
only 4 hours of gas flow and then stopped so that the
rest of the charts for that week were blank (1.142-143)
Daigle agrees that there was such a call and that he
asked Ragas who was in charge of the station and Ragas
told him Duplessis Daigle asked why Duplessis allowed
this to go uncorrected for a whole week (2:238, 451).
Ragas answered that Duplessis was supposed to go back
and check the meter, that Ragas thought he had done so,
but that Ragas would get with him and find out what
had happened (2:238, Ragas).22
Daigle then said, "Tell your union-leading brother-in-
law to stay out of the lawyer's office, and spend more
time with his charts, or I'm going to have to start look-
ing for more help" (1:143).23 Ragas answered that he
would talk to Duplessis about the charts and give him
Daigle's message. Daigle stated that he would be there
later that day and that they would talk about the charts
(1.144). As the record reflects, it was not until a confer-
ence held about 12 August that they discussed these
charts.
We now turn back to the meeting of 31 May. It is un-
disputed that on 31 May Daigle and Raber, along with
Cure and Williams, met with the Homeplace employees
Daigle testified that at the meeting the employees re-
quested specific job classifications, job descriptions, and
hourly pay with pay for overtime worked Daigle prom-
ised to recommend that Respondent convert the employ-
ees to an hourly paid basis, with overtime (1:64-66;
2.415-416, 423). Respecting the job descriptions and clas-
sifications, Daigle stated that he and Raber would get
back with them in 2 weeks (2.423-424).
Because of the press of business, Daigle and Raber had
to extend the meeting date another week until Friday, 21
June (2:424). During the interim, Raber contacted vari-
ous utility companies concerning job descriptions and
22 Daigle's version (which is not inconsistent) is that Ragas said he had
been talking to Duplessis about that (2451) On cross-examination, Ragas
credibly denied telling Daigle that he had been having problems with
Duplessis (2 238)
23 Ragas and Duplessis married two women who are sisters (I 113)
Daigle testified that he does not "think" he made this remark, that he
does not recall it, and that he thinks he would recall it had he made it
(2 452) 1 credit Ragas, who testified in a positive manner on this More-
over, this evidence is consistent with remarks made to all employees at a
meeting later that afternoon
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
classifications and did a lot of work in drafting some
sample descriptions and classifications (1:62, 66; 2:423).
Daigle further testified that following the 31 May
meeting he made his, recommendation to President J. Q.
Delap, and that on 19 June Delap informed him that ef-
fective 1 July the employees would convert to an hourly
pay basis with pay for overtime worked (1:70; 2:491, 521,
525, 528).
Complaint paragraph 6(b) alleges that at the Home-
place facility, about 21 June, Respondent, through
Daigle, orally "threatened employees by telling them he
would discharge said employees because of their union
and/or protected concerted activities." This allegation
refers to remarks Daigle assertedly made, at the company
meeting he, Raber, Cure, and Williams held with em-
ployees the afternoon of Friday, 21 June.
At that meeting Daigle announced the change regard-
ing employees converting to hourly pay with overtime
(1:70, 2:521, 525). Raber then distributed six work sets of
the sample job descriptions and classifications, plus a, ten-
tative organizational chart, which he had drafted since
the 31 May meeting (1.62, 67; 2:419, 424). A discussion
ensued concerning these documents.
As' Daigle describes it, the reaction of the employees
to the work sets was "mixed at best" (2:425). The 'men
felt that the proposed organizational chart tended to
place them in lower rated positions than what they' felt
they were performing. They also were concerned that
new employees could be hired and placed in the higher
rated positions shown on the chart as vacant. Their con-
cern apparently was compounded by Daigle's explana-
tion that they could bid, or would have to bid, in order
to be placed in a higher rated position, and that no pro-
motions could be made or raises given until, under com-
pany policy, 1 October (2:420-421).
Employee Mervin J. Riley Jr. testified that he asked a
series of questions concerning why the employees could
not be placed in higher classifications and receive more
money because they already were doing the skilled
work. Daigle responded, "You're going to do what we
tell you to do, we're not going to be no union, we're not
going to have a union , and before a union comes in this
company we'll start all over from scratch" (2:320). An-
swering that he was not worried about the Union, Riley
asked that he be paid for the work he did.
Duplessis testified that following some coarse language
by Raber concerning all the effort Raber had made pre-
paring the working documents, he asked Daigle why the
men could not be paid the rate for the higher rated posi-
tion when they did that work, plus differential pay for
evening work. Daigle said Duplessis was talking union,
that he would not see a union in the Company, and that
before he did he would fire everyone and start again
(2:336). Testimony of other employee witnesses (Ragas,
Turner, Riley, and Mackey) supports Duplessis. On
cross-examination , employee Mervin Riley acknowl-
edged that Daigle responded to Duplessis by saying that
Delta Gas did not work like a union company, and could
not have separate job classifications for every man be-
cause the Company did not have enough employees
(2:326-327).24 This does not exclude the other statements
attributed to Daigle, nor did Riley so testify.
According to Daigle, when Duplessis inquired why an
employee could not be paid the higher rate when he did
that work, Daigle replied that such was the way the
union operates, but Delta Gas is a small nonunion com-
pany and that Delta Gas would not be doing it that way
(2:425-426).2$ Denying he told the employees he would
close the place and start over rather than be union,
Daigle testified that he does not have that kind of au-
thority (2:426).26 Neither Raber nor Supervisor Williams
testified. Although Respondent called Supervisor Cure as
a witness, it did not ask Cure about this subject.
b. Conclusions regarding Daigle's alleged threats
It appears that Respondent's employees did initiate a
union organizing campaign, but that they did not do so
until July. Daigle testified that it was not until mid-July
that he was informed of such a campaign and that the
news shocked him (2:488-489). Because the employees
did not engage in any union activities before July (as was
stipulated), Respondent argues that it is clear Daigle
made no reference to a union.
I have found, however, that Supervisors Cure and
Williams observed their employees at lawyer Defley's
office on 28 May, and that Supervisor Cure thereafter in-
terrogated employees concerning the meeting. Knowl-
edge of Cure's, conduct is imputed to Daigle and Re-
spondent.
It is not irrational for Daigle to associate the, employ-
ees' visit with Defley as part of a union organizing effort.
Cure had seen Duplessis at Defley's, and given the small
number of 'employees (16) working at Homeplace, and
that it was Duplessis who arranged the meeting and per-
sonally told several employees of the meeting, it is rea-
sonable to infer that Daigle identified Duplessis as the
leader of a movement to organize a union.
Aside from inferences and plausibility, however, I
simply credit the witnesses of the General Counsel who
testified in a persuasive manner'concerning Daigle's ref-
erences to a union. How Daigle reached this belief or
suspicion is an interesting, and relevant, inquiry, but it is
not necessary that the General Counsel show how that
was done when the other evidence, as here, establishes
that Daigle in fact made his statements.
As Daigle testified and employee Mervin J. Riley Jr.
'confirmed, Daigle, either before or after his outburst
against unions, made his statement about Delta Gas being
a small company that did not have enough employees to
have or to staff all the job classifications that character-
24 Of course, this would not be a direct answer to the question Duples-
sis asked
25 This testimony came when Daigle testified during Respondent's
case When called by counsel for,the General Counsel at the beginning of
the hearing under Fed R Evid 611(c), Daigle testified that although
Duplessis did make one statement that overtime was the way to go, any
(other) remarks Duplessis made were of a casual nature and nothing of
importance (169, 73)
26 Regardless of Daigle's actual authority in this respect, Daigle is a
high executive official of Delta Gas and his executive responsibility in-
cludes Homeplace (1.59). Nothing in the record detracts from his appar-
ent authority to carry out the threats attributed to him
DELTA GAS 1325
ize unionized firms As Daigle is a corporate vice presi-
dent, his threats about the adverse consequences of
unionizing would reasonably be viewed by employees as
serious Accordingly, I find that, by Daigle's threats, Re-
spondent violated Section 8(a)(1) of the Act.
4 The Johnnie's Poultry allegation
Added at the beginning of the hearing, complaint para-
graph 6(a) alleges that about 12 and 13 August Respond-
ent, through Daigle, interrogated employees concerning
the facts underlying the demotion of A. J. Duplessis
without providing the requisite safeguards as specified by
the Board in Johnnie's Poultry Co., 146 NLRB 770 (1964),
and its progeny (1 6).
On 12 August Daigle interviewed Supervisor Cure and
employees Ragas and Duplessis27 regarding problems
with some missing charts.28 This postdates the demotion
of Duplessis and took place only 2 days before the com-
plaint issued on 14 August. Daigle concedes that prior to
the 12 August conference he had learned that NLRB
Region 15 had announced its decision to issue a com-
plaint on the charge filed in this case (2:517-518).
Daigle testified that the questioning was necessary to
prevent the incidents from reoccurring and to permit Re-
spondent to formulate a bill it could submit to its cus-
tomers (2:435). An additional factor triggering the meet-
ing, Daigle testified, was a 9 August memo to him from
senior engineer John A. Raber (R. Exh. 13-1) 29
Respondent urges me to reconsider that ruling. On re-
considering my ruling, I reverse it and now receive in
evidence Respondent Exh. 13-1, the Raber memo of 9
August, for the limited purpose offered-to show the
report made by Raber. The memo runs slightly over one
page.
According to the memo, Raber received a call on 9
August from Jim Hollingsworth of Tennessee Gas com-
plaining of delays by Delta Gas personnel in meeting
scheduled times to calibrate meters. The specific incident
prompting the call from Tennessee Gas was a meeting
for that very day at which Ragas allegedly was "ex-
tremely late " Hollingsworth reported that an NLRB
agent had contacted TGP's field personnel, Ralph Son-
nier and Tommy Jones, concerning (the charge relating
to) Duplessis
In his memo Raber reports that he then telephoned
Sonnier. He and Sonnrer discussed that morning's prob-
lem, a heated conversation Sonnier had with Respond-
ent's supervisor Cure, and eventually the contact by
NLRB agent Annie Archie Sonnier allegedly described
serious problems with the performance of both Ragas
and Duplessis.
Although Raber's memo does not mention any prior
contact with the Tennessee Gas people relating to the
quality of service from Delta Gas, Daigle testified that
about May he had dispatched Raber to confer with Son-
nrer and Jones when they threatened to recommend that
TGP cease doing business with Delta Gas because of
29 Mary Jamison, an office secretary, also attended (1 156, 2 241, 432,
545, 551)
28 The charts were from the Pend Oreille and Shell Nairn stations
29 Over Respondent 's objections, I rejected R Exh 13-1 (2 481, 484)
measurement service problems with Delta Gas (1:76, 81;
2:482, 514).
This subject, of course, gets into the matter of Duples-
sis' demotion. At this point it is sufficient to note Dai-
gle's testimony that although the Raber memo sparked
Daigle's calling of the 12 August meeting, at that meet-
ing only the incomplete charts were discussed (2:480-
481).
At the 12 August meeting Duplessis initially attempted
to answer Daigle's questions, but, feeling that he was
being unfairly interrogated, he ceased to respond. Daigle
told him lo come back the next day ready to answer the
questions. Duplessis returned on 13 August, but still was
unable to answer questions relating to responsibility for
the charts even under the threat of suspension
The General Counsel argues that Respondent's real
purpose in calling the 12 August meeting was to "investi-
gate and fix responsibility for the missing charts months
after the incidents in question." And further, "It is sub-
mitted that he [Daigle] had no reason for the delay and
that the belated investigation was designed to ascertain
facts so as to permit Respondent to prepare for the unfair
labor practice hearing." (Br at 8, 9) Respondent does
not contend that Daigle complied with the requirements
of Johnnie's Poultry and, indeed, contends that such case
is inapposite.
I agree with the General Counsel that Daigle' s unan-
nounced purpose in holding the meeting of 12-13 August
with Duplessis was principally to prepare its defense to
the complaint about to be issued by NLRB Region 15.
However, the rule of Johnnie's Poultry does not apply to
every interview an employer conducts with his employ-
ees. Levingston Shipbuilding Co., 249 NLRB 1 (1980); Pa-
cific Southwest Airlines, 242 NLRB 1169, 1170 fn. 4
(1979) Where, as here, the interview covers only work
performance and does not touch on any protected activi-
ties, the Johnnie's Poultry rule does not apply. Alton Box
Board Co., 155 NLRB 1025 (1965). Accordingly, I shall
dismiss complaint paragraph 6A.
C. The Allegation of Discrimination
1. Introduction
The single allegation of discrimination concerns the 25
June demotion of A. J. Duplessis . As detailed earlier,
Vice President Daigle personally hired A . J. Duplessis
on 25 January as an assistant measurement technician
(2:329, 486). Duplessis worked on Supervisor Robert
Cure's crew , and was assigned to work with measure-
ment technician J. C. Ragas for training.
On 24 June Daigle decided that Duplessis should be
removed from measurement work and transferred to the
consti uction crew. Although Duplessis ' pay was not re-
duced, the effect of the transfer was a demotion from a
job progression in skilled work to the work of a laborer
digging ditches with a shovel.
When Duplessis returned to the office at the end of his
work on Tuesday , 25 June, Supervisor Cure instructed
him to park his company truck and be prepared to report
to work the next day as a laborer (2:337, 376). When
Duplessis asked for a reason , Cure told him they did not
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have to give him one. Duplessis asked Cure to call
Daigle ad get one. Cure did so and told him Daigle said
he did not have to give "any goddamn reason" to
Duplessis `(2:337, 376-377, 543).30
Duplessis asked for, and received, Cure's permission to
drive home, remove some personal belongings from the
vehicle,'and then return and park the truck (2:544). As
Cure testified, without contradiction, Duplessis returned
about an hour later and, slapping a copy of Duplessis et
al. v..Delta Gas on Cure's desk, told Cure, "This is why
I'm being demoted." (2:544) If Cure replied, his answer
is not given in the record.
Later that evening Cure reported to Raber and Daigle
about receiving a copy of the lawsuit from Duplessis
(2:488, 545). Daigle and Cure testified that was their first
knowledge of the lawsuit. Quite likely that is true insofar
as the actual filing of the suit is concerned but, as I have
found, they strongly suspected that the occasion of the
employees' 28 May meeting with lawyer Defley related
to a lawsuit for violation of the Federal wage and hour
law.31
Daigle testified that he and Raber discussed the prob-
lems with Duplessis' work performance, and that he in-
structed Raber to prepare a file memorandum on the sub-
ject showing the reasons Daigle removed Duplessis from
gas measurement (1:63-64; 2:503, 504). The memo which
senior engineer Raber prepared, and which Daigle re-
viewed, reads (G.C. Exh. 3):
MEMORANDUM
TO: Employee's Personnel File
FROM: John Raber
DATE: June 25, 1985
RE: Poor Job Performance and Mis-use of Compa-
ny Equipment.
Due to continued poor job performance and mis-
use of Company equipment Anthony Duplessis has
been demoted from Assistant Measurement Techni-
cian to Laborer. Some specifics of poor job per-
formance and mis-use of company equipment are as
follows:
1.) Failure to correctly load charts and deter-
mine proper operation of measurement equipment
at the LSGC Pend Oreille meter station #1-
,1145-1 resulting in no record of gas flow during
the period of April 16, 1985 thru May 1, 1985
and loss of revenue to the Company.
2.) Failure to properly service, maintain, and
check the Delta Gas Shell Pipeline meter station
#2120-005 resulting in the clock running down
and no record of gas flow during the period of
June 12, 1985 thru June 18, 1985 and loss of reve-
nue to the Company.
30 A week later, on 2 July, Cure gave Duplessis a copy of the file
memo dated 25 June listing three specific reasons for the demotion
(2337-338) I do not credit Cure's version that he gave the memo to
Duplessis on 25 June (2 542, 544)
31 Daigle also , as I have found, interpreted the visit as an effort to
begin organizing a union
3.) Mis-use of Company workboat by over-
speeding engines after being warned not to by
Operations Supervisor, Robert Cure, and result-
ing in damage to a Johnson 115 H.P. outboard
motor and great repair expense to the Company.
This action was taken by E. E. Daigle, V.P. Op-
erations and Engineering and Robert- Cure, Oper-
ations Supervisor on June 25, 1985 and shall serve
as warning that unless job performance improves,
Anthony Duplessis' employment will be terminated.
JAR/ld
cc: Anthony Duplessis
Ed Daigle
Robert Cure
/s/ John A, Raber
2. The listed reasons
The first reason listed in Raber's memo is referred, to
in the record as the Pend Oreille charts. According to
Daigle, it was not until the meeting of'12 August that he
learned from Ragas that the Pend Oreille charts in ques-
tion had been the responsibility of Ragas (2:452-453).
Daigle testified that when Ragas reported the matter in
early May Ragas blamed Duplessis (2:453, 501-502).
Ragas testified that the clock was his responsibility and
that in early May he reported to Daigle that the problem
for no recordation on the charts was a faulty clock
(1:121-122). He specifically testified that Duplessis had
no responsibility for that location (1:173).
In light of all the evidence, I find that Daigle at no
time after his early May conversation with Ragas consid-
ered Duplessis as having any responsibility for the Pend
Oreille charts, and that by instructing or approving
Raber's listing these charts in the 25 June memo, Daigle
evidenced an intent to alter the facts in a blatant attempt
to increase the odds that the demotion of Duplessis could
not be successfully attacked. I further find that Daigle so
acted in retaliation against Duplessis because of Daigle's
erroneously held belief that Duplessis was, the leader of a
movement to organize Respondent's employees into, or
to join, a union.
The second listed reason is the missing recordation on
the charts at Shell Pipeline's station at Nairn, Louisiana.
As discussed earlier concerning the events of 21 June,
Ragas reported the problem on the June charts (R. Exh.
12) when he telephoned Daigle on 21 June.32
There is no question that Ragas and Duplessis did not
check the charts for that week at the Shell Nairn station.
As Ragas credibly explained, however, about 3 months
earlier Shell had replaced the key-controlled lock on the
gate to the premises with an electronically controlled
gate through which access could be gained only when a
Shell employee responded by intercom to a visitor's ring-
ing of a buzzer (1:145-146, 197).
33 This set of charts covers the period of 10 June through 21 June
(2 442, R Exh 12)
DELTA GAS 1327
The Delta Gas employees had been having difficulties
in the past with Shell's new gate control system, and this
was particularly so for the week in question. Both Ragas
(1:147, 151-152) and Duplessis (2:351, 353) each made
one or more unsuccessful attempts to gain access that
week. Failing in their attempts, both Ragas (1:147, 152,
159, 199) and Duplessis (2:353, 356) reported the matter
to Supervisor Cure and asserted that something had to
be done. Cure told Ragas to notify the Shell supervisor
when he had time . Ragas said he had already done that.
Cure then stated that he would speak to a "Mr David';
:147-148).3 3(1 ).3
Cure said he would get them (a magnetic) card or key,
but he never did (1:149; 2:353), and as late as the hearing,
Ragas testified, the access problem remained unresolved
(1:185).
According to Daigle, he did not learn until the 12
August conference that his employees were encountering
a problem gaining access to the Shell Nairn station
(2:432, 450). Daigle testified in an unpersuasive manner
and I do not believe him. To the contrary, I find that he
learned of the problem from Cure before 24 June. Even
by his own admission he learned of the problem on 12
August, yet, as Ragas credibly testified, the problem still
persists . This suggests that even if Daigle were credited,
he either has done nothing to correct the problem (indi-
cating that he really attaches a low priority to the
matter) or his efforts have been unsuccessful (suggesting
that the problem is so difficult that any attempt to blame
rank-and-filers Ragas and Duplessis for failing to over-
come a corporate level problem is reflective of an unlaw-
ful motive).
In conclusion I find that Daigle, knowing full well that
neither Ragas nor Duplessis was to blame for the incom-
plete charts, nevertheless listed the Shell Nairn charts for
the week in June as a deliberate effort to nail Duplessis
because of his protected actions.
We come now to the third listed reason-the over-
speeding of the boat engine. There is no dispute that the
occasion of Duplessis' demotion was the fact that the
portside engine on the company boat Duplessis was driv-
ing on 24 June blew a rod (2:540, Cure) or piston (2.384,
Duplessis) through the engine block. Daigle testified
that, except for a small amount of salvage, the engine
had to be junked with the monetary loss estimated at
$2200 (2:458-459).
Supervisor Cure reported the matter to Raber and
then to Daigle on 24 June (2:456, 458, 541-542). For
Daigle this was the "final straw" (1:87) and he told Cure
that he did not want Duplessis driving the boat again
and that means he can't do measurement work." (1:87;
2-542)34
Cure places the cause of the engine 's blowout directly
on Duplessis on the belief that Duplessis was overspeed-
ing (operating at excessive throttle) the boat (2:540-541).
Daigle believes likewise (1:79, 108, 2:458). The reason
33 L II of p 148 shows "Mr David" Although I suspect that is a
garbled version for "Mr Daigle," no party has moved to correct the
record
'4 Duplessis would be unable to do measurement work because many
of Respondent's stations are located in bays and can be reached only by
boat (I 117-118, 2 402-403)
they believe this is because several weeks earlier, with
Cure riding as a passenger, Duplessis pushed the boat to
full throttle. When Cure told him to slow it down to
three-quarters Duplessis obeyed (2:339).35 Cure informed
Daigle of this incident (1:79; 2:503, 542, 554). Ragas testi-
fied that he operates the Delta Gas boats at no more
than three-quarters engine speed, and that an engine can
tear apart if operated at sustained full throttle (1:171,
199).
Duplessis admits that on 24 June, dust before the
engine exploded, he was operating the engine at better
than three-quarters throttle, "not quite all the way
open" (2.385) Duplessis did so despite his knowledge
that the engine had been knocking and apparently was in
need of repair (2:388). 36 Ragas was aware of the prob-
lem and testified that he was not surprised when the
engine threw a rod (1.172). Supervisor Cure also was
aware that the engine was knocking (1:165, 172).
Even though Cure was aware of the engine's problem,
the previous Saturday, 22 June, Ragas observed Cure
and Williams using the boat and a net to trawl for
shrimp (1.165, 169). Trawling puts a heavy strain on the
engine, and this would be particularly true here because
the engines were not equipped with trawling propellers
(1:171). However, Daigle did not learn of the trawling
until Ragas so testified (2:457).
Regardless of the improper use of the boat by the su-
pervisors, I find that Daigle reasonably blamed Duplessis
for the engine's destruction. The evidence indicates that
the engine, although a clunker'37 might have lasted in-
definitely had the speed been held to no more than three-
quarters throttle. In light of Daigle's knowledge that
Cure previously had warned Duplessis about overspeed-
ing the engine, and in view of the report on 24 June that
Duplessis was operating the boat when the engine blew
out, I find that Daigle reasonably could conclude, with-
out further investigation, 38 that Duplessis was to blame
for the engine's destruction.
3. The additional reasons
At the hearing Daigle testified that there were addi-
tional reasons for his demoting Duplessis. The first
(being the fourth specific reason) was that Duplessis ex-
hibited a poor attitude (1:86; 2:454, 504) in that he ap-
peared not to want to do his job properly (1.86; 2:504).
The poor attitude, Daigle testified, was reflected in the
fact that whenever there was a problem with a meter
Duplessis had some "off-the-wall" excuse or attributed
the blame to another employee or to Delta Gas, and he
35 I do not credit Cure's version that Duplessis ignored Cure' s instruc-
tion and that Cure then did not order Duplessis to obey (2 538, 541)
36 There is some evidence in the record that the marine repair shop
had tried to get Delta Gas to replace an outmoded oil pump system on
the engines but that the Company declined to incur the expense (2.388,
Duplessis)
31 The engine had just received some repairs on 31 May (G C Exh 6),
but everyone knew that the engine continued to knock
38 Daigle did not interview Duplessis nor conduct any further investi-
gation of the matter (2 503)
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
never accepted responsibility for any problem (2:454-
455).39
Actually, the poor attitude reason appears to be more
of a general category rather than a specific reason.
Within this category are' specific incidents which Daigle
impliedly attributes to Duplessis' poor attitude. Thus,
Daigle adds, as an item , complaints from Tennessee Gas
inspectors Ralph Sonnier and Tommy Jones that Duples-
sis was tardy for scheduled meetings and refused to cali-
brate meters which in turn forced Sonnier and Jones to
do the testing while Duplessis sat in a vehicle or "had
his mind elsewhere." (1:74-75; 2:510, 515.)
Jones did not testify. Sonnier did, and I find him to be
a credible witness. Although Sonnier understands that
Jones had complained to Respondent that Ragas and
Duplessis were missing scheduled inspections (2:247,
251-252, 254), Sonnier himself never complained to Re-
spondent specifically about Duplessis (2:247, 248). On the
other hand, Sonnier explained that for a couple of years
the Delta Gas people (Ragas and, later, Duplessis) would
be late for scheduled inspections or, generally, they
would have to reschedule inspections. Rescheduling was
disruptive for Tennessee Gas (2:253). Sonnier testified
that on these occasions Ragas would explain that Delta
Gas had assigned a higher priority to other duties (2:254,
265).
When Sonnier would call Supervisor Cure to com-
plain, Cure admitted the reassignments and advised Son-
nier to call John Raber if he wanted to carry it further.
Sunnier would call Raber, who would get the matter re-
solved for a month or so, and then the problems would
begin again (2:254-256).
The testimony of Sonnier confirms that of Ragas
(1:174, 178) and Duplessis (2:360-361, 366-368) that Su-
pervisor Cure would override the inspection/testing
schedules (mutually worked out with TGP) and order
them to handle matters Cure deemed more pressing. The
result was either rescheduled inspections or a tardy ap-
pearance by Ragas/Duplessis.
As to the issue of complaints by TGP, I find in ac-
cordance with the credited testimony of Sonnier, Ragas,
and Duplessis. Thus, TGP had complained for 2 years to
Cure and Raber. The real problem was that Supervisor
Cure would reorder the priorities for Ragas and Duples-
sis and this would, greatly inconvenience TGP-but it
was not the fault of Ragas or Duplessis.
I further find that Daigle knew the precise nature of
the problem, but seized on the matter as an opportunity
to pad his list of charges against Duplessis. This is not to
say that Duplessis was perfect, but any mistakes by him
were few and minor and not the cause of TGP's com-
plaints. By so padding his list of Duplessis' deficiencies,
39 Another example of Duplessis' "poor attitude" was his alleged fail-
ure to, cooperate on 12-13 August when Daigle interrogated him con-
cerning who installed the Pend Oreille and Shell Nairn charts As I have
found, Respondent's reason for this interview was not grounded on busi-
ness reasons but was, as counsel for the General Counsel argues, called to
gather evidence to justify its discriminatorily motivated demotion of
Duplessis (Br at 20) Also as previously found, the mid-August meeting
came after Respondent was notified that the instant complaint would
issue Duplessis was justified in doubting the sincerity of the interview
Moreover, it is quite understandable that in August Duplessis would have
difficulty recalling work events in May and June
Daigle, I find, evidenced a secret motive-a motive to
punish Duplessis because of Daigle's belief that Duplessis
had contacted lawyer Defley for the purpose of organiz-
ing a union.
Another item Daigle and Cure specified at the hearing
was an alleged failure by Duplessis about late April to
change the charts at the Tex Oil Scott Beasley station a
half mile from Duplessis' home (1:85-86; 2:510; 2:532-
532A, 555-556). Duplessis did not'rebut this example.
A ,final item given by Daigle at the hearing is actually
an expansion of the second reason listed in Raber's 25
June memo involving a meter station for Shell Pipeline
Company. That is the Shell station at Nairn, Louisiana
(1:83, 145; 2:432, 442). The problem there was no record
of gas flow for 2 separate weeks, 1 week in May and I
week in June (1:78). Raber's memo specifies the week in
June (which I have discussed) but does not mention the
week in May.
Vacillating about the May charts (R. Exh. 10),40
Daigle initially testified that he did not become aware of
the problem about that week until, in essence, his con-
versation with Ragas on 21 June (2:494). Changing from
that position, Daigle testified he was unsure whether he
and Ragas discussed that matter, which he describes as a
serious problem, but that it was listed in the memo of 25
June after being brought to his attention over a month
after the incident (2:496-497). On realizing that Raber's
25 June memo does not mention the May charts, Daigle
then testified that as of that date they had not studied ev-
erything Duplessis had done and that they did not dis-
cover the defective May charts until the "subsequent in-
vestigation." (2:498.) Asked when that occurred, Daigle
replied that it was "ongoing" and, lasted for "several
weeks", after 25 June (2:499). It appears to be Respond-
ent's position that this "ongoing" investigation culminat-
ed with the 12 August conference Daigle conducted
with Cure, Ragas, and Duplessis. However,,there is no
evidence of any details concerning that investigation be-
tween 25 June and 12 August.41
I find that there was no such investigation and that the
meeting of 12 August was called in response to NLRB
Region 15's notice to Respondent that a complaint
would issue in this case.
4. Credibility aspects
Daigle testified in an unbelievable manner and I do not
credit him on any point except when I have made a fa-
vorable finding. Moreover, there is a lack of plausibility
to much of his testimony. For example, Daigle testified
that it is Respondent's practice to attempt to document
all reports of significant disciplinary problems by memo-
randums placed in the personnel files (2:468, 475, 486).
Yet Daigle admits no such documentation was made
concerning the alleged complaints from Ralph Sonnler
and Tommy Jones of Tennessee Gas and J. C. Ragas and
40 These charts cover the period of 4 May through 16 May (2 433, R
Exh 10)
41 I find that Raber's memo of 9 August (R Exh 13-1) was not the
result of any "ongoing" investigation by Respondent, but instead was a
recordation of a complaint Raber purportedly received that day from
Tennessee Gas
DELTA GAS
Supervisor Cure, even though such complaints supposed-
ly began at least 3 months before Respondent demoted
Duplessis (1 74, 76, 2 510-511).
According to Daigle, he even dispatched Raber in the
April/May timeframe to meet with Sonnier and Jones re-
garding the matter (1:76). Supposedly that is when Son-
nier and Jones threatened to recommend that Tennessee
Gas cease doing business with Respondent if Respond-
ent's gas measurement procedures (specifically, meeting
schedules for testing) did not improve (1.81; 2:482-483,
514-515). Again, Daigle concedes that Respondent made
no documentation on this (2:515). Daigle also admits that
he never personally spoke with Ragas or Duplessis about
this but that he understands Raber did (2.515), although
he concedes there is no corporate notation about it
(2.516). Raber did not testify. I disbelieve all this. More
discrepancies could be detailed, but that would only
lengthen this decision. For example, Daigle admits that
Duplessis was in a "very critical position," was not per-
forming his job, and was costing Delta Gas a lot of
money (2.511) Yet nothing was done about Duplessis;
not even counseling.
Daigle testified that the reason he was reluctant to dis-
cipline Duplessis was the "hassel" he experienced after
he discharged Raymond Antoine in July 1984 for severe-
ly damaging a truck engine by driving it without oil and
thereby creating a $2600 repair bill (2:462, 486).42 The
"hassel" comes from the stress Daigle supposedly experi-
enced during the ensuing unemployment claim, and
appeal, which Antoine unsuccessfully pursued (2:512,
523). Therefore, Daigle was reluctant to impose any dis-
cipline on Duplessis without "proof positive." On 24/25
June Daigle felt he had positive proof of the "bad job"
Duplessis was doing (2:512).
Notwithstanding Daigle's desire to have "proof posi-
tive," and despite allegedly receiving unfavorable reports
from Supervisor Cure, employee Ragas'43 and others
about Duplessis' poor attitude (which assertedly was
manifested by incidents of poor work performance) up
until the demotion, Daigle admits that he never spoke to
Duplessis about the need to correct his attitude (2.505-
509). More significantly, despite Daigle's desire for
"proof positive," he admits that he never made a file no-
tation as to any of these alleged reports (2.501, 511).
Daigle concedes that the 1-week suspension of An-
toine constituted a warning to him to shape up (2.462,
512-513), and he admits that no warning to shape up was
given to Duplessis (2.513). When asked why the differ-
ence of a warning to Antoine but not to Duplessis,44
42 Figuring in the discharge was the fact that Antoine had been sus-
pended a week in February 1984 for failing to check an industrial meter
at the Shell Nairn station for an entire month (2 460-462) That industrial
meter normally registered about 9 million cubic feet of gas each month
(2 462)
43 Ragas specifically denies complaining about Duplessis to Daigle
over the Shell Nairn charts (2 238), and he credibly testified that Daigle
never voiced any complaints to him about Duplessis (I 120)
94 Daigle (2 459-460, 489-490, 505) and Ragas (1 124, 195, 203-206)
agree that Daigle had given Ragas a "severe tongue lashing" in the
spring of 1985 over Ragas' failure to drive the boat in a fog (of several
days duration) to check the Joseph Bayou station Yet not a word was
ever said to Duplessis about his alleged multitude of deficiencies
1329
Daigle replied, rather vaguely, "Well, I think it was just
the build up of all the events that were going on with
him . . So when I found out an engine had been com-
pletely destroyed, I said 'I cannot take any more of
that "' (2-513)
Daigle testified that he did not fire Duplessis on 25
June because he had personally hired him and had initial-
ly thought Duplessis would make a good measurement
technician. Because he felt personally responsible for
Duplessis' being there, Daigle did not want to put him
"back on the streets" by firing him (2 486-487) I find
Daigle to be an unreliable witness
5 Conclusions
I have found that the protected conduct of Duplessis,
leading Respondent to the erroneous belief that Duplessis
was leading a union organizing campaign, was a motivat-
ing factor in Respondent's decision to demote him. Did
Respondent carry its burden of showing that notwith-
standing Duplessis' protected conduct (and Daigle's erro-
neous suspicion), Delta Gas would have demoted
Duplessis? Yes.
The reason I answer the question affirmatively is be-
cause of Daigle's testimony that Duplessis' destruction of
the boat engine was the "final straw" (1:87) and that he
could riot take "any more of that." (2:513.) Moreover,
Daigle demoted Duplessis rather than firing him as he
had done Antoine 45 In that respect the discipline was a
measured action balancing his feeling of personal respon-
sibility for Duplessis' presence against the needs of Delta
Gas Thus, I find that Respondent would have demoted
Duplessis on the boat incident alone notwithstanding its
additional unlawful motivation.46
Moreover, the nature of the incident itself renders this
position plausible. Duplessis had been warned on the
speed; he exceeded that safe speed on an engine which
he knew was defective; the engine was destroyed;47 and
past precedent supports Respondent's discipline. Accord-
ingly, I shall dismiss this allegation of the complaint.
CONCLUSIONS OF LAW
1. Delta Gas is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2. By coercively interrogating employees in May-June
1985 concerning their protected concerted activities, Re-
spondent has violated Section 8(a)(1) of the Act.
46 As I have observed earlier, Duplessts' demotion was by transfer to
the construction crew where he now works as a laborer digging ditches
with a shovel Although Duplessis sustained no immediate loss in pay, his
career ladder is different and does not include the skilled work progres-
sion he previously enjoyed
46 All the other reasons Respondent gave were the unlawfully moti-
vated makeweights it advanced in an effort to increase its chances of en-
suring the success of the demotion
4' Even though Daigle probably was aware that the marine repair
shop had recommended replacing the outmoded oil pump, there is noth-
ing to indicate that the engine could not have lasted much longer had it
been operated with extra care The trolling by Supervisor Cure was an
abuse of that standard of extra care, but it would not seem that such con-
duct by Cure would justify Duplessis in overspeeding the engine
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3, By threatening employees on 21 June 1985 with dis-
charge if they engaged in union or other protected con-
certed activities , Respondent has violated Section 8(a)(1)
of the Act.
4. By interrogating employees on 12-13 August 1985,
Respondent did not violate Section 8(a)(1) of the Act.
5. By demoting A. J. Duplessis on 25 June 1985, Re-
spondent did not violate Section 8 (a)(1) and (3) of the
Act.
6. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed48
ORDER
The Respondent, Delta Gas, Inc., a subsidiary of Lou-
isiana Energy & Development Corporation, New Orle-
48 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions,, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ans, Louisiana, its officers, agents, successors , and assigns
'shall
1. Cease and desist from
(a) Coercively interrogating employees concerning
their protected concerted activities.
(b) Threatening employees with discharge if they
engage in union or other protected concerted activities.
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Homeplace, Louisiana, and New Orle-
ans, Louisiana offices copies of the attached notice
marked "Appendix."49 Copies of the notice, on forms
provided by the Regional Director for Region 15, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
49 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "