Fuelgas Company, Inc.

National Labor Relations Board - Board Decisions

Dec 21, 1981

259 N.L.R.B. 801 (N.L.R.B. 1981)

FUELGAS COMPANY, INC. 801
Fuelgas Company, Inc. and Local 486, International The charges were filed by the Union on December 27,
Brotherhood of Teamsters, Chauffeurs, Ware- 1979,' and January 7, 1980. The complaint alleges several
housemen and Helpers of America. Cases 7- independent violations of Section 8(a)(1) of the Act, and
CA-17225 and 7-CA-17263 the discharge of Jack Wesch, in violation of Section
8(a)(l) and (3) of the Act. 2
December 21, 1981 Respondent denies commission of the alleged viola-
DECISION AND ORDER tions.
Upon the entire record, including my observation of
BY MEMBERS FANNING, JENKINS, AND the demeanor of the witnesses, and after due considera-
ZIMMERMAN tion of the briefs, I make the following:
On June 8, 1981, Administrative Law Judge FINDINGS OF FACT
Bruce C. Nasdor issued the attached Decision in
this proceeding. Thereafter, the Charging Party 1. JURISDICTION
filed exceptions and a supporting brief. Respondent Respondent maintains its principal office and place of
filed cross-exceptions to a part of the Administra- business at 2290 East Hill Road, P.O. Box 1490, in Flint,
tive Law Judge's Decision, and also filed a brief in Michigan, herein called the Flint office. It maintains 26
support of part of the Administrative Law Judge's distribution branches in the State of Michigan and is, and
Decision. has been at all times material herein, engaged in the sale
Pursuant to the provisions of Section 3(b) of the and distribution of propane gas and related products. Re-
National Labor Relations Act, as amended, the Na- spondent's distribution branches located at 2147 1-75
tional Labor Relations Board has delegated its au- Business Loop, West Branch, Michigan, herein called the
thority in this proceeding to a three-member panel. West Branch branch, and Route 33 North, Rose City,
The Board has considered the record and the at- Michigan, herein called the Rose City branch, are the
tached D n in l t of te es ad facilities involved in this proceeding. During the year
tached Decision in light of the exceptions and ending December 31, 1979, which period is representa-
briefs and has decided to affirm the rulings, find- tive of its operations during all times material herein, Re-
ings,' and conclusions2 of the Administrative Law spondent, in the course and conduct of its business oper-
Judge and to adopt his recommended Order. ations, had gross revenues in excess of $500,000, and de-
~~~~~~ORDER ~livered at its distribution branches propane gas and other
goods and materials valued in excess of $50,000, of
Pursuant to Section 10(c) of the National Labor which goods and materials valued in excess of $50,000
Relations Act, as amended, the National Labor Re- were transported and delivered to its distribution
lations Board adopts as its Order the recommended branches in various locations throughout the State of
Order of the Administrative Law Judge and Michigan, directly from points located outside the State
hereby orders that the Respondent, Fuelgas Com- of Michigan
pany, Inc., West Branch and Rose City, Michigan, I. THE LABOR ORGANIZATION
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended It is admitted, and I find, that Local 486, International
Order. Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (herein called the Union), is, and
'The Charging Party has excepted to certain credibility findings made has been at all times material herein, a labor organization
by the Administrative Law Judge. It is the Board's established policy not within the meaning of Section 2(5) of the Act.
to overrule an administrative law judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence II1. THE ALLEGED UNFAIR LABOR PRACTICES
convinces us that the resolutions are incorrect. Standard Dry Wall Prod-
uct Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We In July 1979, the Union commenced an organizing
have carefully examined the record and find no basis for reversing his campaign at Respondent's West Branch and Rose City
findings.
' In adopting the Administrative Law Judge's conclusion that Re- facilities. On July 26, the Union filed a petition in Case
spondent violated Sec. 8(a)(l) by soliciting grievances, Member Jenkins 7-RC-15531 for the following unit of employees:
relies on his dissenting opinion in Uarco Incorporated, 216 NLRB 1
(1974). All truck drivers, servicemen, cylinder men, utility
men employed at the Employer's West Branch and
DECISION Rose City, Michigan facilities, but excluding all
STATEMENT OF THE CASE All dates are in 1979, unless otherwise specified.
A Subsequent to the close of the hearing, on January 27, 1981, counsel
BRUCE C. NASDOR, Administrative Law Judge: This for the General Counsel filed a motion to dimiss par. 13 of the complaint
case was heard at West Branch, Michigan, on November which alleges the illegal discharge of Leo Nicefield. The basis for this
24 and 25, 1980. motion was Nicefield's proffer to withdraw Case 7-CA-17263. Both Ni-
cefield and Respondent concurred in counsel for the General Counsel's
motion. Therefore, I am granting the motion.
259 NLRB No. 104
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have carefully xamined th ord and r no basis e ing
s campaign at Respondent's West Branch and Rose City
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802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office clerical employees, guards and supervisors as solved. Also at the first meeting in Rose City, Lambert
defined in the Act. asked employees why they needed the Union and Nice-
field complained he was not making as much money as
An election was conducted on October 5, at both facili- other employees who were engaged in the same duties.
ties voting as a single unit. Of the approximately 11 eligi- Lambert allegedly responded that he could take care of
ble voters, 9 votes were cast for the Union, I vote was that problem immediately. Moreover, he asked the em-
cast against the Union, and 2 ballots were challenged. ployees to give him some time, that he was going to get
The two challenged ballots were not sufficient to affect to these problems and they should let him see what he
the results of the election. On November 30, the Region- could do. In late August, Lambert held a second meeting
al Director issued a supplemental decision certifying the with the West Branch employees where he informed
Union as the collective-bargaining agent for the employ- them that he had spoken with Branch Manager Toms,
ees referred to in the above-described unit. and that Respondent would make every effort to resolve
After receiving the petition, Thomas Lambert, vice the problems that had been discussed.
president and general manager of Respondent, asked Thereafter, the branch managers of West Branch and
Lane Powell, industrial relations manager of Marathon Rose City commenced to conduct weekly meetings with
Oil Company (of which Respondent is a wholly owned their employees. Lambert advised the employees at West
subsidiary), to conduct a training session regarding stand- Brah the se d meeti with them that theBranch during the second meeting with them that the
ards of conduct during the union organizational drive.y
All of Respondents supervisory hierarchy, includ weekly meeting would be for the purpos e of mployeesir branch
branch managers, were present at this session, where y te the rn
Powell pointed out what kind of conduct would consti- managers. Employee Wesch testified that, during his 9
Powell pointed out what kind of conduct would consti- R , . w tanewhat to do, and years in Respondent's employ, this was the first time
tute an unfair labor practice. He stressed what to do, andtute an unfair labor practice. He stressed such meetings had been conducted. The weekly meetings
what not to do, during the Union's organizational cam- s h n e e n edTe w y mein
paign. John Miller, attorney for Respondent, also advised wth management ceased at the Rose City branch ap-
proximately 1 week after the election according to themanagement as to standards of conduct during the cam-y , g
paign. Miller was not present at this session.testimony of Nicefield.
Beginning on August 2, Lambert held a series of four During the latter part of August, Jacklyn, who was
meetings with the employees at Rose City and West the union observer at the election in West Branch, was
Branch. At the first meeting, at West Branch, David experiencing problems with his truck. On the day in
Jacklyn, a serviceman, stated that he thought he should question Jacklyn called Toms at the Rose City office
be paid the wage rate in a higher classification. Accord- complaining about his truck. Toms told Jacklyn to work
ing to the testimony of Jacklyn and Wesch, Lambert al- at the dock at West Branch until he, Toms, could get
legedly responded that he could not give the employees there to look at the truck. After hanging up the phone in
a raise even though they may have been in a higher job the presence of some other employees, Jacklyn stated
classification unless the employees got their cards back that he would like to kick his (Toms') ass if he were
from the Union (union authorization cards), and then he there. When Toms arrived at West Branch an employee
could check into it, and give them a raise if they had one informed him about Jacklyn's statement. Toms followed
coming. At this same meeting employees complained Jacklyn to the auto repair shop and brought him back to
about Frank Toms, branch manager, and about unsafe the plant in his truck. On the way back to the plant,
working conditions. Lambert, in his testimony, denied Toms asked Jacklyn about this comment. Jacklyn ad-
the statement attributed to him regarding the return of mitted that he had made the alleged statement and the
union authorization cards. He testified that employees, in two of them discussed the situation and concluded that
particular Jacklyn, discussed wages. He reviewed the there was no sense fighting and they worked the incident
benefit policies of Fuelgas and pointed out his inability to out, as "gentlemen and friends." Jacklyn testified that
grant any wage increases because of the wage and price during this conversation Toms told him "he was raising
guidelines. too much hell with the Union" and that Jacklyn would
Later that same day Lambert met with the employees end up getting fired or, if the Union won the election,
at Rose City. At this meeting Lambert reviewed the his- Respondent would "make it very hard for me to work
tory of Respondent and its acquisition of Greene's Gas there." Toms denied making the statements that Jacklyn
Company. Employees brought up problems they be- attributed to him, although on cross-examination Toms
lieved existed at the plant. Lambert also asked the em- testified that it was possible that the subject of the Union
ployees to give him a chance. Nicefield questioned the came up, and that he truthfully did not recall what was
wage rate he was receiving and Lambert responded that said about the Union.
he would check out all the problems the employees had In late August Lambert conducted a second meeting
raised. At the first meeting in West Branch, and later in with the West Branch employees. Jacklyn testified that
Rose City, Lambert asked the employees what their he told them that if the Union was voted in they would
problems were and why they needed the Union. The em- not receive the scheduled cost-of-living increase in Janu-
ployees complained that they were lifting tanks which ary 1980. Jacklyn worked for Respondent from June
were filled with gas beyond the proper capacity, that 1977 until October 1979. He testified that, during his
'ey were working too much overtime, and as stated ear- tenure of employment with Respondent, employees re-
they complained about Toms. Lambert told the em- ceived cost-of-living raises in January of from 5 to 7 per-
A s he would talk to Toms and get the problems re- cent.
tisvtn sas l nt fteapoiaey1 lg- Lmetalgdyrsod ta ecudtk aeo
l ti ili i t ti .
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t ll ll t r t ffi i t t ff t t t l t l l t i
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l i t i l t l i i rtif i
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t r i i t titi , La bert, vice the proble s that had been discussed.
r i t r l r f nt, ft , t
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i i r , t t i i i r i t d i t
r t i i i ti l . ey m i wu b f the purpose of employees
ll of espondent's supervisory hierarchy, including communicating any problems they had to their branch
r r , t t t i i , m E\y Ws t ta duri his 9
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t t i l . , s m ha b c T w meeting
t t t , ri t i ' r i ti l c - swi h mn e e n t ceasen t dRos City brangs
paign. John ill r, tt r y f r espondent, also vis wp t h .oxi age ent ceased at the ose ity branch ap-
t t t r f t ri t - Ptesimony 1 Nefterto
i . ill r s t r s t at t is session.testing oh acefteld.
i i t 2, rt l ri f f r tDurin t l tt r rt f t, ckl ,
eetings ith the e ployees at Rose ity and est th e union observer at the election in est Branch, was
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FUELGAS COMPANY, INC. 803
Lambert testified that he was discussing the collective- cording to Nicefield Anderson told him that he would
bargaining relationship between Respondent and the "hate to see me lose my job but if the Union went
Union. According to him, he told the employees that through, that we would all be singled out one at a time
cost-of-living raises were a point of negotiations and and be fired within 3 months-." According to Rau, An-
asked them rhetorically whether Respondent should give derson allegedly stated "-we was making a mistake by
them the raises if they had voted for the Union, but if no getting a union in and he said that if it was voted in, that
contract had yet been negotiated. we would all be weeded out and fired and that he hated
According to the testimony of Jacklyn, Lambert held to see us lose our jobs." Respondent takes the position
a third meeting at West Branch sometime around the that Anderson was calling Nicefield and Rau as personal
middle of September. Lambert allegedly stated at this friends and merely asking them to reconsider their sup-
meeting that since they (the employees) received their port for the Union and give Fuelgas a fair shake, point-
raises they did not need the Union and that Frank Toms ing out advancement possibilities similar to his promo-
was working with them better. He asked the men if the tion. He denies telling Rau or Nicefield that they would
reference to Toms was not so and, allegedly, stated again lose their jobs. Respondent avers again that Anderson
that they did not need the Union. In early September the knew how they felt about the Union and he was simply
employees received wage increases in varying amounts. expressing his own opinions; moreover, no threats were
The raises were allegedly "classification raises"; i.e., in- made about jeopardizing any individual's jobs.
creases in pay reflecting different steps within the same
classifications. Respondent takes the position that, during The Termination of Jack Wesch
Lambert's meeting with the Rose City employees, Nice-
field questioned his wage rate of $5 an hour. Because this Wesch began his employ with Respondent in 1970. In
rate was not specified on the Company's pay scale, Lam- July 1979 during the union organizational campaign, he
bert became concerned and checked into the situation. signed a union card and distributed cards to other em-
He discovered that at 19 or 20 of Respondent's branches ployees. Wesch worked at the West Branch branch; he
there were about 43 employees who were incorrectly also contacted employees at Respondent's other facilities
classified. Accordingly, after discovering these errors he to induce them to join the Union. He attended union
consulted with his attorney and industrial relations man- meetings in July and August. Wesch testified at the rep-
ager. They advised Lambert to correct the classifications resentation case hearing in August on behalf of the
and implement the wage increases. Respondent's witness, Union. A short time after the Union was certified,
Richard Anderson, a branch manager at New Balti- Wesch asked for, and received, permission from Toms to
more, 3 testified that Respondent's policy is to give an post a notice in the West Branch facility, informing the
employee a classification raise after 6 months of employ- employees that the Union had been certified and there
ment, and then again after 18 months, at which time the would be a union meeting. Wesch was a transport truck-
employee reaches the maximum third step in the classifi- driver and he also performed light maintenance
4 on Re-
cation system. spondent's vehicles.
Wesch was known to be a union adherent by virtue of Sometime after the election, Respondent discovered
the fact that he testified in mid-August on behalf of the several unexplained acts of destruction to its property.
Union at the Board representation hearing. Wesch testi- They all occurred at the West Branch facility. The dam-
fled in this proceeding that approximately a week before ages are documented by Respondent's records which
the election he talked to Frank Toms privately on or were received into evidence. Instead of oil being used as
about three occasions. The conversations took place in a lubricant in a compressor, methanol was found, costing
Toms' office and according to Wesch, "He asked me Respondent approximately $950. Truck 803 was found to
what I would get out of the Union and I told him that, contain gravel or sand in the crankcase, costing Re-
well, I was not sure, I would not know until the union spondent almost $1,400. Truck 801, with only 5,000 miles
got in there, but he said that the Union wouldn't get in, on it, was found to have rivets in the front assembly
and he told me to be sure to vote no for the Union." Re- missing, and one wheel about to fall off.
spondent does not deny that these statements were made When truck 906 was in use at West Branch, it was
by Toms to Wesch but contends that under the circum- driven by Wesch. Wesch inspected this truck on October
stances they do not amount to unlawful interrogation. 22, and noted on the form used by Respondent that the
Respondent avers that the conversation was one where foot brakes were "o.k." In December, it was discovered
Toms was merely expressing his opinion and there were that transmission/power steering fluid was in the master
no threats or statements that could in any way be con- brake cylinder rather than brake fluid. This cost Re-
strued as coercive. Moreover, Wesch's presence in spondent almost $700 to replace and rebuild the parts in
Toms' office was not unusual. Respondent contends, fur- the brake system, which had been destroyed by the
ther, that asking employees who are openly prounion transmission fluid. Respondent considered these incidents
why they are supporting a union is not violative of the to be acts of sabotage and requested the state police to
Act. keep a watch on the yard.
Nicefield and James Rau, a serviceman, testified that Generally, Wesch was assigned to drive and maintain
on the night before the election they were called on the truck 808. On November 26, the microbrake on this
telephone by Branch Manager Richard Anderson. Ac-
' He changed oil, tires, and filters. During the period involved in this
Not involved in this proceeding proceeding, he was responsible only for the vehicle he drove

' ,
rt's ti it t s it e l ees, i -
fi l sti is r t f $5 r. s t is J W e s c h 17 i l it t i . I
l 1 9 7 9 - ""^ t h e u n l o n ,
a u n io n a n d i t i t r t t r e -

es c h w o r k ed a t t h e W est B r a nc h b r an c h ; h e
tl a l
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t o in d u c e t h e m to j i t
h e U n io n . H e tt i
i t. t stifi at t r -
t ti ri i t lf f t e
o n . s h o r t t m e
P 1 i t f ilit , i f r i t
w u ld b e
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i
50.
.
-
.

A a ft e r t h e o n w a s
Filt

804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truck locked up. This is a switch located on the dash- icke,6 Respondent's northern Michigan regional manager,
board of the truck, which locks the brakes. To correct present for the interview. Lambert instructed Toms that,
the situation, Wesch borrowed a wrench from an em- if Wesch admitted he had put transmission fluid into the
ployee and loosened the fitting on the brakeline to purge master cylinder, then Toms was to discharge him. If
off some of the brake fluid. By doing this he was able to Wesch did not admit to this act, Lambert advised Toms
release the microbrake. Wesch testified that he had trou- not to fire Wesch, but to investigate the matter further.
ble with this truck before, and he advised management of On December 17, at approximately 8:15 a.m., when
this 6 months prior to his termination. Wesch returned from his vacation, he was interviewed in
Wesch testified that he had to wait until the morning Toms' office by Jaenicke and Toms. Toms told Wesch
of November 27 to replace the brake fluid, because it what had happened, and that transmission fluid had been
was past quitting time on November 26 when he had the found in the master cylinder and had damaged the
problem. According to Wesch, the backroom where the system. Toms and Jaenicke testified that Wesch admitted
brake fluid was kept was locked.5 He testified further he had put automatic transmission fluid in the master cyl-
that brake fluid is kept in a tall plastic bottle about a foot inder but stated he did not think it would make any dif-
high and it is labeled brakefluid. The transmission/power ference and, indeed, that he did the same thing to his
steering fluid was also kept in the backroom, and it was personal truck. Wesch was told he was being terminated.
in a quart container similar to an oilcan, also labeled Heasked Toms if it was because of the Union. Toms
transmission fluid. Moreover, according to Wesch's testi- told him that it was not because of the Union, it was
mony, and the testimony of other witnesses, transmission strictly because of the dangerous and unsafe conditions
fluid has a reddish color and brake fluid is clear in color. Wesch had created. That afternoon Jaenicke prepared a
Wesch drove the truck on November 27, 28, and 29 summary of the investigation and the exit interview with
Wesch drove the truck on November 27, 28, and 29 Wesch, which has been received into evidence as Re-
before going on vacation on December 6. He testified spondent's Exhibit 22. Wesch testified that he told Toms
that after replacing the fluid he had no further problems and Jaenicke he had not put transmission fluid into the
with the brakes. Respondent's records revealed that no master cylinder, but he had put brake fluid into it.
one was assigned to drive the truck from December 1
through December 5. Record evidence reveals that the Conclusions and Analysis
truck was driven by other employees on December 6, 7,
8, 10, 11, 13, and 14. Record testimony developed by Respondent reveals8On December 1, 0Tos wen t ot on deeris wh that, after receiving the petition, Lambert asked Powell,On December 11, Toms went out on deliveries withano ter empoeeI, onmtruck 808. They werverie m k ther industrial relations manager, and John Miller,7 Respond-
another employee on truck 808. They were making their .. ent's attorney, to meet with Respondent's supervisorydeliveries when they began to experience problems with a incding the bnch manaers ere y
the brakes "hanging up." As a result they had to release inuctd t sanars cnc rnwould be instructed as to standards of conduct during a
fluid from the line leading to the master cylinder in union organizational campaign. Unfortunately, in some
order to release the brakes. As they continued making cases, and in my opinion this is one, clients do not
deliveries they experienced the same problems and were to the advice given to them by their attor-
forced to constantly bleed the brake system. Red fluid neys I believe the testimony of Jacklyn, who was cor-
came out of the system. After approximately six deliv- roborated by Wesch, that Lambert told employees in the
eries they assessed the situation and decided to return to meeting at West Branch that he could not give them
the facility. The employee was driving and, as he ap- classification raises unless they requested the Union to
proached an intersection at approximately 5:30 p.m., return their authorization cards. Jacklyn impressed me as
where there was no stoplight, the brakes failed complete- a credible witness who possessed a good memory and
ly. Toms told the driver to stop the truck before reach- made a sincere effort to recount the details of the meet-
ing the intersection, even if he had to drive into a dirt ings. I therefore find that Respondent's unlawful promise
bank adjacent to them or into cars parked on the side of was made to employees for the purpose of having them
the road. They managed to stop the truck before they relinquish their support for the Charging Party in viola-
reached the intersection and very carefully drove it a tion of Section 8(a)(1) of the Act.
quarter of a mile back to the facility and parked it. Toms Lambert testified at some length about the various
investigated the situation and concluded that the brake meetings he conducted. He went into great detail as to
system contained transmission fluid. He had the truck what he told the employees with respect to company
taken to a garage for repairs and the entire master cylin- policy, benefits, and Federal wage and price guidelines. I
der had to be rebuilt and all of the brake lines purged. am convinced, though, that he simply chose to leave out
This cost Respondent $764. those aspects of the meeting that counsel for the General
Toms investigated further and found that the last indi- Counsel has alleged as violative of Section 8(a)(1) of the
vidual to service the truck was Wesch. Toms called Act.
Lambert, Respondent's vice president and general man- Lambert testified that Respondent did not just decide
ager, on December 12, and informed him what had hap- to have weekly meetings of employees in August 1979,
pened and what he had discovered. Lambert advised that they had extensive training programs in the summer
Toms to interview Wesch and to have Thomas Jaen-
' Record testimony reflects that it is commonplace for Jaenicke to
The unrefuted record testimony reveals that all employees had keys attend similar conferences.
to the plant gate and the backroom. He did not attend this meeting.
.
.
ti i til ni
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i
f o u nd in t h e t
T o m s ni ti i
' ti h e h ad ti i l
ll ti in d
er b u t t t i t t i it l if-
fl i i i / , i , t t i t t i t i
ri i l tr . t l as i ter inated.
i r i
H e as k e d T o m s f it f t i .
i r i ' ti
t o ld h i t h at it w as n o t bec a
u s e o f t h e i , it w as
ti itne t i i s
be c a us e o f t r s and unsafe conditions
l l i i l i l .
es c h r t . t ft r Jaenicke prepared a
esc t 80 9n
^ ^ ^befoe gingon aca onon eceber6. e tstiied , i s r i i t i s -
i ti r . t tifi odent' x i it 22. esch testified that he told To s
l i spond t's Ei 22. Wesch tr i i fl i i t t
l ^ , fuid i it.
i
l i
tr i l , , R ev de v
8, „ ' r->' . , 1, 1, 13, an 14A r t t, t i i
O December I ,, T ms went out on, deliveries with '
t r l . e a t m wt Re suer1sr,,.. "., . . ' „ .., ~~~~~ent's
li ri t t ri r l it h y i t w
t r i ." lt t l w instruc ed as o t nd rds of onduct du ing a
fl i f t li l i t t li i i i ti l i . t ly,
r r t r l t r . t ti i , i i
li ri t ri t l always listen t t i i t i
t t ntl l t . l i . ti ckl ,
t r i t l i li
i t t it ti i t t
t ili l i i l ifi ti i l
re i t ti t r i t l : . ., t ri ti ckl i r
t li l t
l . t l t ri r t t t tr f r reach- ade a sincere effort to recount the details of the meet-
i t i ti , if i i . i ' l f l
i i
l i r i rt
ti r r f ll r it a tion f ection 8(a)(l) of the Act.
ili ti l t i
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u b tcted
FUELGAS COMPANY, INC. 805
of 1977. Furthermore, according to his testimony he di- believe, testified that Lambert told the employees after
rected his branch managers in 1977 to conduct weekly they received their raises, that they no longer needed the
meetings with employees. For 2 yearss he did not know Union as a result of having received said raises. I there-
that the branch managers were not carrying out his dir- fore find that by implementing the wage increases pursu-
ectives. Thus, Lambert contends that the reason he up- ant to employee complaints and grievances, Respondent
dated this directive in the summer of 1979 was because attempted to undermine the employees' support for the
these meetings were not being held. I discredit Lambert Union in violation of Section 8(a)(1) of the Act.
and reject this as being inherently untrue. I do not be- Respondent concedes that Toms made the statements
lieve it is merely a coincidence that concurrent with re- and inquired of Wesch what he would get out of the
ceiving the petition and becoming aware of the Union's Union under the circumstances as testified to by Wesch.
organizational campaign Respondent decided to revive Respondent defends its position by pointing out that
an old policy which had been dormant for 2 years. Wesch was a known union supporter, and that it was not
Furthermore, the credited evidence is clear that em- unusual for him or any other employee to be in Toms'
ployees were solicited with respect to problems, corn- office under informal circumstances. Moreover, accord-
plaints, or grievances they had, and Respondent implied- ing to Respondent, the statements do not amount to un-
ly promised to rectify their grievances in violation of lawful interrogation because Respondent was merely at-
Section 8(a)(1) of the Act. I am also cognizant of the fact tempting to stress its position and persuade Wesch, a
that Wesch, an employee of 9 years, testified that Re- known union adherent, to recognize Respondent's posi-
spondent never conducted weekly meetings during hisy not permissive interrogation,tion. In my opinion this was not permissive interrogation,tenure.
Jacyntenure. whs creibility ha aled bee d d because it reasonably tended to interfere with the free
Jacklyn, whose credibility has already been discussed, exercise of Wesch's Section 7 rights As pointed out by
testified regarding a conversation which occurred be- counsel for the Generl onsel no ssrnces weou
tween him and Toms in a truck that Toms was driving. I c o u n se l fo r he General Counsel no assurances were
completely credit the testimony of Jacklyn with respect given that the information elicited would not result in re-completely credit the testimony of Jacklyn with respect
to the specifics of the conversation. I discredit Toms prisals. Accordingly I find this to be interrogation
with respect to the violative comments made during the withn the purview of ection 8()(1) of the Act.
conversation, although I believe that he got carried away Anderson admitted calling Nicefield and Rau to urge
because of the emotional nature of the conversation. Ac- them to vote against the Union. Their credible testimony
cordingly, I find that the statements made by Toms to reflects that Anderson told them they would lose their
Jacklyn constituted threats to impose more onerous jobs if the Union won the election. Respondent bases its
working conditions and threats of discharge because of defense on the fact that Anderson was a friend of these
Jacklyn's union adherence, in violation of Section 8(a)(1) employees, knew them socially, and had previously
of the Act. worked with them. Assuming this to be true, Board law
It is uncontroverted that, at the meetings Lambert held still does not relieve a respondent for the statements
with the employees, the question of a cost-of-living in- made by its agents under the circumstances herein. I
crease, in January 1980, was raised. Lambert, according therefore find that Anderson's statements to these em-
to his testimony, attempted to couch his discussion in ployees were threats in violation of Section 8(a)(l) of the
terms of negotiations. Jacklyn's version, which is the ver- Act.
sion I credit, reflects that Lambert told the employees at
West Branch that they would not receive a scheduled The Termination of Wesch
cost of living raise in January 1980 if the Union won the In my opinion, Wesch, who had been driving a truck
election. Even accepting Lambert's version at best, he for over 30 years, did in fact put transmission fluid into
implied that the employees would lose the raises if they the master cylinder of truck 808. further believe that, at
selected the Union as their collective-bargaining repre- the exit interview, Wesch admitted to Toms and Jaen-
sentative. Accordingly, I conclude that this was a threat icke that he had put transmission fluid in the brake
of a loss of benefit in violation of Section 8(a)(l) of the system, and stated he did not think it would make any
Act. difference because he did the same thing with his person-
Respondent implemented a companywide wage in- al truck. With all the destruction that had occurred to
crease after discovering errors in the classifications. Respondent's equipment I do not believe it was unrea-
However, there was no past practice of granting these sonable for management to act as they did, even though
increases. The timing of the increases would necessarily Respondent had no way of proving that Wesch was en-
create the impression on the employees who received the gaging in sabatoge. It was not in my opinion unreason-
increases that their complaints and grievances gave rise able for Respondent to have suspected Wesch. It is also
to the wage increases. 9 Moreover, Respondent had been noted that the individuals who were working on the
put on notice some time earlier of Nicefield's classifica- other pieces of equipment which they discovered to have
tion, which was not one specified on Respondent's pay been damaged are the same individuals who reported
scale, but did nothing to remedy the situation until after these acts to management. In Wesch's case this was not
the Union filed a petition. Furthermore Jacklyn, whom I the situation, because the individuals driving the truck
were the ones who experienced the brake failure, not
Rose City was not acquired until January 1979. Wesch. I am not unmindful of the fact that Wesch testi-
' Moreover, it is noted that Respondent, at an earlier date, held out the
promise of remedial action in violation of Sec. 8(a)(l) of the Act. See St. fled that he advised Respondent 6 months prior thereto
Francis Hospital, 249 NLRB 180 (1980). that he was experiencing difficulty with the brakes.
. '
l
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i
l r li it it t t l , m i l i .
l i t , r ri t , t i li t,
l r i t r tif t ir ri i i l ti f l l i t ti t l
ti ( )(l) f t t. I l i t t f t
t t , l f r , t tifi t t - i t, i ' i
t r t kl ti i i t I y on t w i i i i
tenure. i. -r -r. i. i -i i- j-because
l , i ilit l , h ctio igh i
t tifi r i ti i s el nera C uns a suranc s re
t i i a tr t t ri i . I cgv n tha the enel woul no res r
l t l it ti ckl t 8'^" t t tAc formation elicited would not result in re-
t t cifi f t r ti . I i r it wpithih c ordinglye I fi ist i ti
w l t h ln t h e "^'^ o f S e c t 0 " ^X 1) o f t t e A c t
itt lli i fi l a t r e
t h e m t o v o t e i . i i l t ti
t t t l t t l l s t ir
f t h e o n w o n

h e
r
l ti . ti ' i i
i li t t t l l l t r i if t t st r li r f tr ck 808. I further believe that, at
l i i ll ti r ini g r r - t it i t r i , esch ad itted to To s and Jaen-
t ti i l , t i i l i i t
fi ti )(l)
A c t . i fer i i i
t l i l i ll t tr ti t t rr t
ri ifi ti . t' i l
ti
r . r sarily t i
i i i t . t
i t t
.' r, t l
rl i i l ' l ifi - t r i f i t ic they discovered to have
cifi l
l i til
l ti ckl , i ti
» I i
-ven
i
ast
that the inf ti
withn t i
e a e
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although I have concluded that Respondent engaged 7. By implementing a wage increase pursuant to em-
in various acts in violation of Section 8(a)(1), during the ployee complaints and grievances, Respondent commit-
preelection period, I find that the motivation for dis- ted a violation of Section 8(a)(l) of the Act.
charging Wesch almost 3 months later was his admission 8. By interrogating an employee regarding his union
with respect to putting transmission fluid in the master sympathy and support, Respondent committed a viola-
cylinder of the truck, and not his union activity. tion of Section 8(a)(l) of the Act.
I do not regard Wesch as a credible witness with re- 9. By threatening employees with discharge in the
spect to the testimony he offered in support of his dis- event the Union won the election, Respondent commit-
charge. For example, he testified that he had to wait ted a violation of Section 8(a)(l) of the Act.
until the morning after he had trouble with the brakes, 10. The allegations of the complaint that Respondent
because it was after quitting time, and the backroom has engaged in conduct violative of Sections 8(a)(1) and
where the brake fluid was located was kept locked. The (3) of the Act have not been supported by substantial
uncontroverted testimony by Toms is that all employees evidence.
had access to the plant and the backroom, 24 hours a
day, by virtue of the fact that they all had keys to theTHE REMEDY
plant gate and the back door of the building. Having found that Respondent has engaged in unfair
The record is clear that there were other individuals labor practices within the meaning of Section 8(a)(l) of
who were equally active on behalf of the Union (e.g., the Act, I shall recommend that it be ordered to cease
Jacklyn) who were not discharged. The record is also and desist therefrom and to take certain affirmative
clear that these individuals were known union adherents. action designed to effectuate the policies of the Act.
I do not believe that Respondent waited 3 months to re- Upon the foregoing findings of fact, conclusions of
taliate against Wesch because of his union activities. law, and the entire record, and pursuant to Section 10(c)
Accordingly, I will recommend that the allegations of the Act, I issue the following recommended:
that Wesch was discharged in violation of Section 8(a)() ORD
and (3) of the Act be dismissed.E
Respondent raises an affirmative defense, that the alle- The Respondent, Fuelgas Company, Inc., West Branch
gations in the complaint alleging independent violations and Rose City, Michingan, its officers, agents, successors,
of Section 8(a)(l) of the Act exceed the scope of the and assigns, shall:
unfair labor practice charges. In section 2 of the form 1. Cease and desist from:
"Charge Against Employer," there is a "catchall" clause (a) Telling employees they would receive higher
which is part of the form itself stating, "[b]y the above wages in exchange for relinquishing their support for the
and other acts, the above named employer has interfered Union.
with, restrained and coerced employees in the exercise of (b) Soliciting grievances and complaints with the im-
the rights guaranteed in Section 7 of the Act." Thus, the plication that it would favorably resolve those com-
complaint does not expand upon the charges and the al- plaints and grievances in an attempt to undermine the
legations are related to the charges. Therefore, Respond- employees' support for the Union.
ent's defense in this regard is without merit. (c) Threatening employees with more onerous work-
ing conditions and/or discharge because of their support
CONCLUSIONS OF LAW for the Union.
I. Respondent is an employer engaged in commerce if(d) Threatening to withhold scheduled wage increases
within the meaning of Section 2(6) and (7) of the Act. f the employees select the Union as their collective-bar-
gaining representative.2. The Union is a labor organization within the mean- g g
ing of Section 2(5) of the Act. (e) Implementing a wage increase pursuant to employ-
ee complaints and grievances in an attempt to undermine
3. By telling employees that they would receive higher employees' support for the Union.
wages in exchange for relinquishing their support for the (f) Interrogating employees regarding their union sym-
Union, Respondent has committed unfair labor practices pathies.
in violation of Section 8(a)(1) of the Act.in violatin of S n 8 ) of te . (g) Threatening employees with discharge in the event
4. By soliciting complaints and grievances from em- that the Union becomes the collective-bargaining repre-
ployees, with the implication or promise that Respondent sentative for its employees.
would favorably resolve those complaints and griev- (h) We will not in any like or related manner interfere
ances, Respondent has committed unfair labor practices with, restrain, or coerce our employees in the exercise of
in violation of Section 8(a)(l) of the Act. rights guaranteed in Section 7 of the Act.
5. By threatening employees with more onerous work- 2. Take the following affirmative action necessary to
ing conditions and/or discharge because of their support effectuate the policies of the Act:
for the Union, Respondent has committed unfair labor
practices in violation of Section 8(a)(1) of the Act. o In the event no exceptions are filed as provided by Sec. 102.46 of
6. By threatening to withhold a scheduled wage in- the Rules and Regulations of the National Labor Relations Board, the
crease if the employees selected the Union as their col- findings, conclusions, and recommended Order herein shall, as provided
a r, I. , . . . in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
lective-bargaining representative, Respondent committed become its findings, conclusions, and Order, and all objections thereto
a violation of Section 8(a)(l) of the Act. shall be deemed waived for all purposes.
.
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.
, )(l)
.
h a s l
) o f t h e A c t
T H E R E M E D Y
)(l)

o f
1)
is ed.ORDER'°

1. espondent is an e ployer engaged in co erce ( d ) reate i t it l sc l i r
i ti l f t h en ing l t i i i -
. i ti
ing of Section 2(5) of the ct. ( e) I l ti
a w l
ee co plaints and ri v c s i tt t t r i. lli l t t t l r i i r l ' rt f r t i .
i f r li i i t i rt t ( ti l r i i
t i .
l) ct./„>T, 1 1 . *1in , ,.. violation of Section 8 f the Act. ,.(g) t i l
. li i i l i i r ini g
, t t ti f it l .
l l l i ) i
, t i t i
ti )(l ti
t i . t f ll i ffir ti ti r t
i i r li i t:
t i f i l r
l) ti il i . . f
. e te ing W -
r if t l l i l "di"ngs co lus and
,ective-bargaining .. presentative, ,espondent. . . . * in ec. 102.48 f t l s l ti , t t r i i ntativ , t i it fi i , l i , and r r, and all j cti s thereto
Vi l ti f ti l ll i ll .
3
FUELGAS COMPANY, INC. 807
(a) Post at both premises at Rose City and West APPENDIX
Branch, Michigan, copies of the notice marked "Appen-
dix."" Copies of said notice, on forms provided by the NOTICE To EMPLOYEES
Regional Director for Region 7, after being duly signed POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARDby an authorized representative of Respondent, shall, be NATIONAL LABORed States Govern
posted immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con- WE WILL NOT tell our employees they will re-
WE WILL NOT tell our employees they will re-spicuous places, including all places where notices to em- ceive higher wages in exchange for relinquishing
ployees are customarily posted. Reasonable steps shall be their support for the Union.
taken by Respondent to insure that said notices are not WE WILL NOT solicit complaints and grievances
altered, defaced, or covered by any other material. from our employees with the implication that we
(b) Notify the Regional Director for Region 7, in writ- will favorably resolve those complaints and griev-
ing, within 20 days from the date of this Order, what ances in an attempt to undermine our employees'
steps have been taken to comply herewith. support for the Union.
IT IS ALSO ORDERED that the complaint be dismissed WE WILL NOT threaten employees with more
insofar as it alleges violations of the Act not specifically onerous working conditions and/or discharge be-
found. cause of their support for the Union.
WE WILL NOT threaten to withhold scheduled
wage increases from employees if they select the
Union as their collective-bargaining representative.
WE WILL NOT implement wage increases pursu-
ant to employee complaints and grievances in an at-
tempt to undermine their support for the Union.
WE WILL NOT interrogate our employees regard-
ing their union sympathies and support.
WE WILL NOT threaten employees with discharge
in the event the Union becomes their collective-bar-
" In the event this Order is enforced by a Judgment of a United States gaining representative.
Court of Appeals, the words in the notice reading "Posted by Order of WE WILL NOT in any like or related manner in-
the National Labor Relations Board" shall read "Posted Pursuant to a terfere with, restrain, or coerce our employees in
Judgment of a United States Court of Appeals Enforcing an Order of the the exercise of rights guaranteed in Section 7 of the
National Labor Relations Board." Act.
FUELGAS COMPANY, INC.

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P OST E D BY O RD E R T H E
t ti t, ll BOR RELATIONS BOARD
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A n Aec o f t h e Un te d S t at e
s Government
t i it f cuti t r ft r, i - t yw
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l i r r t t r is f ri ts ara tee in ecti 7 f the
.
N T IC E