Equitable Gas Co.

National Labor Relations Board - Board Decisions

Jan 7, 1977

227 N.L.R.B. 800 (N.L.R.B. 1977)

800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Equitable Gas Company and International Brother-
hood of Electrical Workers, Local Union 1956,
AFL-CIO. Case 6-CA-8576
January 7, 1977
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On July 14, 1976, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
limited exceptions to the Administrative Law Judge's
Decision and Respondent filed a brief in opposition
to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as herein modified.
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(5) and (1) of the Act by
refusing to furnish the Union with a copy of a test
used for promotion purposes. However, he failed to
pass upon the General Counsel's allegation that
Respondent violated Section 8(a)(1) and (5) by
refusing to furnish the Union a written account of the
scoring method used in grading the examination. We
agree with the General Counsel that a written
explanation of the scoring method should be made
available to the Union along with a copy of the test.
Robert Vaux, Respondent's labor relations assistant,
testified that Respondent used subjective considera-
tions, such as an employee's problem-solving ap-
proach, in grading the examination. Thus a written
explanation of the scoring method is essential in
order for the Union's experts to properly evaluate the
test and its application. The Administrative Law
Judge did find that Respondent provided a written
explanation of the scoring method at a fourth-step
grievance meeting. However, providing the written
explanation for such a brief inspection by the Union's
lay representatives, who were admittedly unqualified
to evaluate the scoring method, does not meet
Respondent's statutory obligation to bargain in good
faith. The Board has long held that a union, as the
bargaining agent of the employees involved, is
entitled to relevant information which is necessary to
fulfill its role as bargaining agent in the administra-
tion of its collective-bargaining agreement.' Accord-
ingly, while we are making an explanation of the
227 NLRB No. 127
scoring method available to the Union, we shall, in
order to preserve its future utility, impose the same
restrictions on its use as the Administrative Law
Judge recommended for copies of the test in the
section of his Decision entitled "The Remedy."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Equitable Gas Company, Pittsburgh, Pennsyl-
vania, its officers, agents, successors, and assigns,
shall take the action set forth in said recommended
Order, as so modified:
1. Substitute the following for paragraph 2(b):
"(b) Submit to the Union copies of the test
administered to the employees for promotion as a
benefits records clerk and a written explanation of
the scoring method in accord with the provisions of
the section entitled `The Remedy.' "
2. Substitute the attached notice for that of the
Administrative Law Judge.
1 The Detroit Edison Company, 218 NLRB 1024 (1975), and cases cited
therein.
APPENDIX
NoTIcE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportu-
nity to present their evidence, it has been found that
we violated the National Labor Relations Act, and
we have been ordered to post this notice and to keep
the promises that we make herein:
WE WILL, upon request, furnish International
Brotherhood of Electrical Workers, Local Union
1956, AFL-CIO, with copies of the test adminis-
tered to employees for promotion as a benefits
record clerk, and a written explanation of the
scoring method, and with a list of unit employees
with 10 or more absences during 1974.
WE WILL NOT refuse to bargain collectively with
that Union by refusing to furnish the Union with
such information.
WE WILL NOT refuse to permit employees to
have a union representative present at meetings
where employees reasonably believe that disci-
plinary action might result.
EQUITABLE GAS COMPANY got
WE WILL NOT interrogate or threaten employees
in relation to their appearing before the National
Labor Relations Board to give testimony.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7 of
the National Labor Relations Act, as amended.
EQUITABLE GAS
COMPANY
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: This case
was heard at Pittsburgh, Pennsylvania, on April 15, 1976,
pursuant to charges filed August-29, 1975, and a complaint
issued January 30, 1976, amended at the hearing, alleging
violations of Section 8(a)(1) and (5) of the Act. The General
Counsel and Respondent have filed briefs.
Upon the entire record in the case, including my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF TIM EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
Respondent, a Pennsylvania corporation, is a public
utility with its principal office located in Pittsburgh,
Pennsylvania. During 1975, its annual gross revenues
exceeded $250,000, - and, during the same period, it pur-
chased goods and materials from sources directly outside
the Commonwealth of Pennsylvania valued in excess of
$50,000. I find, as Respondent admits, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. International Brotherhood of Electrical
Workers, Local Union 1956, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. TIM UNFAIR LABOR PRACTICES
A. Posture of the Case
There is only one minor, and largely irrelevant, evidenti-
ary conflict in this case; all the allegations thus turn on
questions of law, and on what inferences and conclusions
are to be drawn from uncontested facts. The complaint
alleges that Respondent violated Section 8(a)(5) and (1) of
the Act by refusing to comply with the Union's requests for
(1) absentee records of employees in the Gas Measurement
Division for an approximately 6-month period, (2) a list of
all employees with 10 or more absences during 1974, and
(3) a copy of a test used for promotion purposes for a
particular job. The complaint also alleges that Respondent
violated Section 8(a)(1) of the Act by (1) refusing to permit
certain employees to have a union representative present at
a meeting with a supervisor, and (2) interrogating and
threatening certain employees in relation to their potential
participation as witnesses in the hearing in the instant case.
The facts, discussion, and conclusions as to each of these
issues follow.
B. The 8(a)(5) Allegations
1. Gas Measurement Division absentee records
On June 17, 1975, the Union requested a grievance
meeting at the "fourth step" in connection with a 2-day
suspension given Union President Thomas O'Brien on May
21, and also requested "the absentee records for all union
members in the Gas Measurement Division from Novem-
ber 5, 1974, through May 15, 1975, "as needed before we
have a fourth step meeting." The Company denied the
Union's request for the absentee records in question.
Although -the merits of O'Brien's grievance are not, of
course, before me to resolve or even to express an opinion
upon, the nature of the grievance and the facts- relating to
the suspension are. essential to a- resolution of the, legal
question whether Respondent was obligated to furnish the
requested information. On May 14, O'Brien had requested
that he be permitted to take Friday, May 16, off as a
vacation day. This request was denied. On May 16, O'Brien
called in "sick." That same day, Martin Mlinarick, then
superintendent of the division, went to O'Brien's home, as
listed in company records,- and was told by a woman there
(who turned out to be O'Brien's wife) that O'Brien was ""out
of town." O'Brien returned to work on May 21, and was
informed that he was suspended for 2 days. The company
memorandum to O'Brien of that date informed him that the
suspension was "because of willful misconduct for not
working but reporting in sick on Friday, May 16, 1975, after
being denied vacation for that day." Mlinarick testified that
he went to O'Brien's address because he thought O'Brien
had lied about being sick, having been denied the day off
(because his work was "so far behind"), and yet, on the last
day of the week, taking it off anyway. O'Brien testified that
he had been separated from his wife for about 6 months and
was no longer _living at the address on the Company's
records. He also testified that he told this to Mlinarick
when he returned to the plant, although Mlinarick denied
that O'Brien' did so, stating that O'Brien made no reply
when he asked who he had spoken to at the address he
visited on May 16. Mlinarick testified' that O'Brien'$
absentee record (which was good) had nothing to do with
the suspension, which was because of willful misconduct, as
the company memorandum to him stated.
The difference between the parties with respect to this
issue is not a legal matter, for all agree that if the requested
information was relevant, whether to the processing of
O'Brien's grievance or the Union's determination of wheth-
er to press the matter to arbitration, it should have been
furnished. The disagreement stems from the parties' differ-
ing views as to the relevance of the information in the
circumstances of this case. In my opinion, these circum-
stances demonstrate that neither the resolution of O'Brien's
grievance, nor the determination of the Union whether to
proceed to arbitration, in any way at all depends upon or
relates to the comparison of his absences with those of the
other employees in his division. Although it was an
"absence" that triggered the 2-day suspension, that was
merely the form that his "willful misconduct" (in the
802 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
Company's view, that is) took. He was suspended, in other
words, not for being absent as such, but because, after
being denied leave on the occasion in question, he took the
day off anyway, calling in sick, and the Company conclud-
ed, after Supervisor Mlinarick did not find him at the
address listed as his home in company records, that he had
disregarded the denial of his request to take the day of
The General Counsel argues that the Union "thought it
necessary to obtain the absentee records for other employ-
ees .... which would show that -O'Brien had a lower
percentage- of absences as compared with other division
employees." Obviously, the resolution of a refusal-to-fur-
nish information case cannot turn on the "thoughts" of the
requesting party, for, apart from a possible sham request,
made to harass (there is no suggestion of that here), the
request itself would suffice to require production of the
requested information were that the law. The same may be
said as to the reason for the Union's "thoughts," for there is
no suggestion - in this case , that O'Brien's absences, either
standing alone or in relation to those-of other employees in
his division, had anything at all to do with the Company's
decision to investigate this particular absence.2 If this
theory were tenable, a union could ask for, and a company
have to supply, all personnel data requested whenever there
was a grievance, so that the union could show that the
grievant is perhaps the best employee from a production
standpoint, or the employee who has made the least
mistakes on the job, or any other comparison that might
show the grievant to be better than other employees, no
matter how unrelated the areas of comparison were to be
basis for the action taken against the employee. I conclude,
for the aforesaid reasons, that Respondent did_ not violate
Section 8(a)(5) by refusing to furnish the requested infor-
mation in relation to O'Brien's grievance.
2. Absentee records for 1974
On September 9, 1975, the Union wrote two letters to the
Company, one requesting that ' a grievance' with respect to
employees Cynthia George and Brown be processed to the
fourth step, and the 'other requesting a list of all bargaining
unit employees absent 10 or more days during 1974, the
latter letter stating that this "information is needed to
process a grievance." By return letter of September 16,
1975, the Company advised the Union that "the type of
information requested in your letter of September 9, 1975,
is not maintained , and we do not have a list of employees
who have lost 10 or more days in the year 1974. Also, our
records show no grievance nor arbitration case where this
type of information would bepertinent or meaningful in the
processing of the case."
The grievance of George and Brown (herein called the
"Brown grievance"), related to the Company's "one day
notice" requirement, which provides that the Company can
require any employee to provide a doctor's certificate for
1 As noted, this is the ostensible basis for the Company's action. It may
well be that O'Brien could prevail in an arbitration proceedmg on the facts
he testified to before me, but the merits of his position are not my concern.
2 It seems to me quite natural for a company to be suspicious when a
request for leave for the last working day of the week is denied and the
employee then calls in "sick." And when the company then checks and does
not find the employee at his listed address, the suspicions are at least prima
facie confirmed.
each absence if he has been guilty of excessive or chronic
absenteeism.'Normally, such a certificate is required only
after 3 days of absence. Labor Relations Assistant Robert
Vaux testified that the criteria for placing an employee on
"one day notice" include some seven different factors, all of
which were explained to the Union at the Brown fourth-
step grievance meeting.
With respect to this issue, Respondent contends that "it is
questionable that the request . . . refers to the Brown
grievance," that the request in any event "would have no
relevance to the Brown Grievance" because "the fact that
an employee has been absent ten or more times does not
necessarily mean he is a chronic absentee," that the
absentee records "contain confidential medical and person-
al information which the Company must protect," that the
compilation of a list for the 330 employees in the unit would
be "extremely burdensome," and that the Union's filing of
the Brown grievance was "suspect as having been filed as a
pretext to support the union's unfair labor practice charge."
Unlike the preceding request, the Union's request for a
list of all employees in the unit absent 10 or more times has
obvious presumptive relevance, for there was pending (filed
at the same time) the Brown grievance, which, as noted
above, involved the question of how the Company deter-
mined "chronic absenteeism" for the purpose of putting
employees on "one day notice." The fact that the Union's
request for the information did not specify that it was
wanted in connection with that grievance does not militate
against the Union's position, first, because this lack of
specificity does not detract from the relevance of the
information; second, because the two requests made on the
same day would, in my mind, bear an obvious relation to
each other; and third, because in any event, the information
was relevant to the broad question of the "one day notice"
requirement, and therefore to the Union's intelligent
functioning as the employees' bargaining agent. The fact
that the Company has on "numerous occasions" explained
to the Union the criteria used to determine chronic
absenteeism, and that these criteria include more factors
(seven in all) than the number of absences alone, does not
make the information irrelevant, or unnecessary to the
Union.
The "confidentiality" argument, if I understand correctly
what the Union wants, as well as the General Counsel's
position, is not in fact germane to this case, for a list
prepared by the Company from its personnel records,
listing names and the number of absences for each
employee who was absent 10 or more days during 1974,
would not need to disclose any of the "confidential, medical
and personal" information that the Company seeks to
protect. I need not, accordingly, determine the merit of the
Company's legal position in this respect 3 As to Respon-
dent's argument that furnishing the list requested would be
"burdensome," I do not view the amount of effort neces-
3 The General Counsel cites "wage data" cases for the proposition that
confidentiality is no defense to a request for otherwise relevant information,
with the Company viewing those cases as inapposite because wage data
information is much less likely to "embarrass the employee" than the release
of absence and medical information. And the Company cites United Aircraft
Corporation (Pratt and Whitney Division) 192 NLRB 382 (1971), for the
proposition that medical data need not be furnished. The Board said in
United Aircraft that medical data need not be furnished without specific
EQUITABLE GAS COMPANY
sary to make the compilation as unduly burdensome.
Obviously, that amount cannot now be determined with
any precision, but it would appear that the General Counsel
is not too far off the mark in speculating that taking the
number of absences from the "calendars" it maintains
would not entail more than a half day's: work. The
obligations imposed by the Act often do involve some time
and effort; on both sides of a bargaining relationship. On
balance , unless the burden is so onerous in relation to the
size of the Company as' to be virtually an insuperable
burden financially or in terms of the work necessary, the
slight burdens of furnishing relevant information must yield
to the need for the information to make bargaining
meaningful and efficacious.4
3. Copy of the test
In connection with a vacancy in the position of benefit
records clerk, the Company gave a test to three employees
to measure proficiency in the tasks used on the job. The
contract between the-parties provides that seniority governs
promotions as among applicants with "capacity to do the
job skillfully." Of the three employees tested, the senior one
passed -the test, but decided not to bid on the job; the
second most senior failed the test; and the junior employee
passed the test and received the job. On July 31, the Union
wrote the Company requesting a copy of the test in order to
determine its "validity." The employee who failed the
examination, Dolly Campbell, also filed a grievance. At a
fourth-step grievance meeting, four union representatives
were shown the tests taken by the three employees,
permitted to examine the tests, and given an explanation
(including a written explanation) of the method used in
scoring the test. The Union then requested a copy of the test
so that it could be evaluated by experts at the International,
because, although they felt that the tests were job related
and the method of grading was proper, they were not
qualified to make a final decision on the matter. The
Company" has refused to furnish the Union a copy of the
test for that purpose.
Respondent's position is that it has already, for practical
purposes, and in good faith, complied with the Union's
request by furnishing copies to the union representatives at
the fourth-step grievance meeting, along with a full expla-
nation of the scoring method: As part of that contention,
Respondent claims that doing more than it has already
done-by furnishing a copy to the Union to be sent to the
International for evaluation-would destroy the test's
usefulness because the Union would in all likelihood
publicize the test and use it for purposes other than
bargaining as indicated by the fact that it sent to the EEOC
a copy ofits request tothe Company for the test.
The latter aspect of Respondent's argument, standing
alone, "could not justify a refusal -to furnish the test. As
cogently pointed out in The Detroit Edison Company, 218
NLRB 1024, 1035 (1975), this argument is tantamount to
claiming that a company, "having voluntarily chosen a
permission "unless and until .. [the information] became relevant to some
particular problem." As the records sought here are seemingly relevant to
"some particular problem," the dictum in United Aircraft tends to support
the General Counsel's position. But, as already noted, I believe the
information sought can be compiled and presented-to the Union without
803
particular form or mechanism to determine the right of
bargaining unit employees to be promoted . . . is now
precluded by the very devices which it adopted from
dealing with the employees' bargaining representative
about critical elements of the promotion process ... Such
a program, which freezes out the bargaining representative
from participation in significant elements of the promotion
process ... constitutes a complete negation of the bargain-
ing process and the rights of employees guaranteed by the
Act."
As to whether Respondent has already complied with the
statutory requirements by furnishing the test to the union
representatives for their examination at the grievance
meeting along with an explanation of the scoring method,
Detroit Edison also seems to furnish a definitive answer,
reasoning that "mere disclosure of -the tests to lay union
representatives is not likely to be productive of constructive
results. If the tests are to be properly analyzed, this should
be. done by those who have the expertise to deal with the
concept involved." True, the Company now states in its
brief that "if the union desires expert evaluation of the test,
there is no reason to assume the Company would not allow
inspection of the document at its offices." There is no
indication in the record, however, that this last position was
ever stated to the Union. Had it been, I believe I would
have concluded that the Company satisfied its obligation.
The contrary being so, on the authority of Detroit Edison,
supra I conclude that Respondent has violated Section
8(a)(5) and (1) of the Act by refusing to furnish the test.
Guided by Detroit Edison, and with deference to Respon-
dent's position respecting'the test's confidentiality, I shall=
impose the same restrictions upon the use of the test as the
Board did there. With these-restrictions in effect, it would
appear, indeed, that the Company's present position is not
too far removed from what is being here ordered.-
C. The 8(a)(1) Allegations
1. The request for a union representative
On October 15, 1975, John Innocenti; manager of the
Company's credit and collection department, called a
meeting of four of his department's employees. During this
meeting, he took some papers and the union contract, threw
them across his desk, and said that if the employees
"wanted to play the union game," he would "play it along
with" them, that from then on he was "going to go right by
the book," that if they didn't like the department, they
"could use the bidding system and bidout: '
The next morning, Innocenti stood by the wall clock
waiting for two of the employees, Janet Brankley and
Melody Ondick, to arrive. He had never before done that.
When they arrived at 8:28 a.m. (their official starting time
was 8:30), he told them in a loud voice that they had better
start arriving for work on time. Innocenti also told them
they would no longer be permitted to perform a function
which permitted employees to leave the office to deliver
revelation of any "confidential" data.
4 Here, for example, the burden of furnishing the list now could well be
offset were the Union satisfied therefrom that no further action was
necessary.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
papers to other floors, that they would be required to
report, from then on, to Supervisor Harry Conner each time
they wanted to leave the office, that he was reducing their
lunch time by 5 minutes, and they could no longer leave the
office 1 minute prior to official quitting time, a custom
previously followed in the office.
After lunch that day, Innocenti informed Ondick, Sharon
Smith, and Orlean Wilson that he wanted to see them in his
office. They had returned from lunch about 3 minutes late,
having left for lunch the same 3 minutes late because of
duties they were performing.5 Smith told Supervisor Con-
ner, who had informed them that Innocenti wanted to see
them, that she wanted to get Boland` to go to the meeting
with them because she was afraid, she would be disciplined
and she was ;"scared" because Innocenti had already taken
away their "five minutes" at lunch and "one mmute" at
quitting time and had "talked very loudly" at the meeting
the day before. Conner told them that Innocenti did not
want Boland at the meeting. Smith at first refused to attend
the meeting, but did so at Boland's urging. Innocenti, at the
meeting, accused the employees of returning late from
lunch. After hearing their explanation, he reprimanded
them for not informing Conner about the reason at the
time, and told them that thereafter they must tell Conner
when they left late for lunch. The employees then left the
office, and just as Ondick reached her desk, Innocenti
"yelled out of his office `Melody, get back in here.' "
Ondick asked if Boland could come with her, and Innocenti
replied that if she went to get Boland, he would accuse her
of insubordination and she could -get her hat and coat and
leave. She went back into : the office, where Innocenti
accused her of wanting "to play this union game," and said
that in the, end he "was going to win." He accused her of
being late on a number of occasions during the preceding 8
months, told her that the next time she was 1 minute late
she would be sent home, and then, as she was leaving the
office, walked into Conner's office and yelled "Dock
them." When she returned to her desk, Innocenti walked
over again , "he bent over and he was pointing in my face,
he said that unemployment was up ten percent, there are
many people that want my job and I can easily be
replaced." Later, Ondick, who was "pretty upset and .. .
didn't feel good," went to the nurse and received a sedative
and was told by the nurse to lie down.
The circumstances in which the three employees were
called into Innocenti's office, which, as related fully above,
included Innocenti's having on the previous day told the
employees he was going to go. "by the book," and having
rescinded, that morning, certain privileges previously
enjoyed by them, as well as his conduct thereafter with
respect to Melody Ondick, demonstrate to me that Smith's
asserted fear of disciplinary action being taken at the
meeting was well-founded, and entirely reasonable. Under
Weingarten (N.LR.B. v. J.- Weingarten, Inc., 416 U.S. 969
(1973), it obviously cannot make any difference that in fact
no disciplinary action results; the question is whether the
employee concerned could reasonably anticipate discipline-
as a possible result . I suspect-although the decisions do
not make this crystal clear-that a "reasonable person" test
should be used. That is, someone unreasonably in fear of
possible discipline, perhaps because of excessive timidity or
shyness, might not, despite his subjective honest belief, be
entitled to the presence of a union representative on his
request. That is not the case here, for, as already stated, I
regard Smith's feelings as having been engendered by
Innocenti's conduct during that and the preceding day, and
her fears not only genuine, but completely reasonable.
Respondent contends in its brief that the interviews were
"run-of-the-mill" conversations to "correct work technique,
i.e., instructions on proper attendance," and that a Compa-
ny is not imposing "discipline" by insisting that employees
live up to the agreement with the Union spelling out the
times for lunch and time for leaving work. Respondent also
asserts that the fact that Wilson and Ondick attended the
meeting without requesting union representation shows
that Smith's fears were unreasonable, and suggests that the
fact that neither employee Wilson nor Union Steward
Boland was called to testify by the General Counsel
somehow means that it must be assumed neither felt that
the meeting did involve potential discipline.
Aside from the fact that Respondent failed to call either
Innocenti or Conner as a witness (leaving the testimony of
the General Counsel's witnesses completely unrefuted), the
context of the meetings described above doesnot soundmuch
like "run-of-the-mill" conversations, nor does the manner
and accompanying comments about "playing the union
game" of, Innocenti suggest no more than a company
supervisor "correcting work technique" or giving "instruc-
tions on proper attendance," particularly in view of the fact
that the practice followed up until that time was not "by the
book." The fact that neither of the other employees asked
that Boland accompany them does not prove that they did
not feel the meetings were for disciplinary purposes. They
might well (and Respondent did not ask them anything in
this connection, not cross-examining Smith or Brankley at
all) have been intending to ask for representation, but felt it
futile after Smith was denied such. In any event, the fact
that other employees similarly situated do not seek repre-
sentation does not affect the right of the employee seeking it
to have it. For all the foregoing reasons, I conclude that
Respondent violated Section 8(a)(1) by -refusing to permit
Smith to have a union representative present at the October
16, 1975, meeting.
2. The alleged interrogation and threats
On April 9, 1975, 6 days before the hearing in this case,
employees Smith and Ondick showed Supervisor Conner
the subpenas they had received to appear at the hearing.
Conner asked them what it was all about, said `This is big
trouble," and "Well, the ax is really going to fall, choppers
are coming down now, boy, this is big stuff now," and "You
better start getting your bid cards and bid out, somebody is
going to be going." 6 Conner then walked over to two other
employees, Bill Paracas and Helen Hardinger, asked them
where their subpenas were, and added, "you are in the
union too, aren't you?" to each, in a loud tone.
5 While they were at lunch, Innocenti looked in and observed them 6 Based on the uncontradicted testimony of Smith and Ondick. Conner,
talking to their shop steward, John Boland. as noted above, did not testify.
EQUITABLE GAS COMPANY 805
These facts clearly establish a violation of Section 8(aX1)
of the Act. Respondent's defense here is to characterize
Conner's asking Paracas and Hardinger where their subpe-
nas were as having been done "in a joking manner," there is
nothing in the testimony to suggest that this characteriza-
tion fits the facts. Indeed, the transcript reference given by
Respondent in support of this characterization has Smith
testifying that Conner spoke "very loudly," and that it was
following his questioning of Paracas and Hardinger that
Conner said "the ax is really going to fall."
Respondent also, in its brief, asks the somewhat rhetori-
cal question "Does General Counsel really expect to prove
an interrogation by what has to be hearsay evidence?"-
referring to the fact that neither Hardinger nor Paracas was
called to testify. Why employees' testifying as to what they
(Smith and Ondick) heard Conner say is "hearsay" some-
how escapes me. That Paracas and Hardinger did not
testify does not detract from the testimony of Smith and
Ondick. Much more importantly, Respondent did not call
Conner to testify, so the testimony of the General Counsel's
witnesses was not refuted. Furthermore, lest there be any
doubt about it, I found both Smith and Ondick to be
completely open, frank, and credible witnesses in every
respect, and have not the slightest reason to doubt anything
they said on the stand. Nor do I regard the remarks made to
them as "casual or ambiguous," as Respondent suggests. I
find, accordingly, that Respondent violated Section 8(aXl)
of the Act by the aforesaid conduct.
CONCLUSIONS OF LAW
1. Respondent, by refusing to furnish the Union with a
list of employees with 10 or more absences during 1974 and
a copy of a test used for promotion purposes, has engaged
in unfair labor practices within the meaning of Section
8(axl) and (5) of the Act.
2. - Respondent, by refusing to permit certain employees
to have a union representative present at a meeting with a
supervisor, and by interrogating and threatening certain
employees in relation to their participation as witnesses in
the hearing in the instant case , has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
3. Respondent has not violated the Act by refusing to
furnish the Union a list of absence records of employees in
the Gas Measurement Division.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
I shall recommend that Respondent cease and desist
from its unfair labor practices and take certain affirmative
action in order to effectuate the policies of the Act. As
indicated above, I shall restrict the Union's use of the test
T In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
hereinafter ordered to be furnished, so that the Union
including experts from its International shall have the right
to see and study the tests, but not to copy the tests, or
otherwise use them, for the purpose of disclosing the tests or
the questions to employees, and that the test be returned to
Respondent within a reasonable time after the Union has
had the opportunity to study and evaluate them.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER?
The Respondent, Equitable Gas Company, Pittsburgh,
Pennsylvania, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International
Brotherhood of Electrical Workers, Local Union 1956,
AFL-CIO, by refusing to furnish the Union with informa-
tion relevant and reasonably necessary to the processing of
grievances filed on behalf of employees represented by the
Union.
(b) Refusing to permit employees to have union represen-
tation at meetings where employees reasonably believe that
disciplinary action might result.
(c) Interrogating or threatening employees concerning
their giving testimony in National Labor Relations Board
proceedings.
(d) In any other manner interfering with, restraining, or
coercing their employees in the exercise of their rights
protected by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Submit to the Union a list of unit employees who have
had 10 or more absences during the year 1974.
(b) Submit to the Union copies of the test administered to
the employees for promotion as a benefits records clerk, in
accordance with the provisions of the section herein
entitled "The Remedy."
(c) Post at its Pittsburgh, Pennsylvania, offices copies of
the attached notice marked "Appendix."8 Copies of said
notice, on forms provided by the Regional Director for
Region 6, after being duly signed by Respondent's repre-
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
s In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."