Gulf Natural Gas Corp.

National Labor Relations Board - Board Decisions

Apr 18, 1969

175 N.L.R.B. 417 (N.L.R.B. 1969)

GULF NATURAL GAS CORP. 417
Gulf Natural Gas Corp . & Ocala Bottle Gas
Company ' and Teamsters , Chauffeurs,
Warehousemen & Helpers Local Union No. 385,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America . Case 12-CA-4171
April 18, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On January 6, 1969, Trial Examiner David S.
Davidson issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respondent
filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, and the entire record in the
case, including the exceptions and briefs, and hereby
adopts the findings,' conclusions,' and
recommendations of the Trial Examiner.
Chauffeurs, Warehousemen & Helpers Local Union No.
385, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, hereinafter referred to as the Union, a
complaint issued on July 9, 1968, alleging that Gulf
Natural Gas Corp and Ocala Bottle Gas Company,'
herein called Respondent, violated Section 8(a)(3) and (1)
of the Act by discnminatorily discharging Sue F. Mitchell
on February 16, 1968, by interrogating an employee about
the union activities of Respondent's employees, and by
warning employees that the first of them to talk about the
Union in Respondent's office would be fired. In its answer
Respondent denies the commission of any unfair labor
practices.
A hearing was held before me in Ocala, Florida, on
August 8, 1968. At the close of the hearing, counsel for
the General Counsel presented oral argument, and the
other parties waived oral argument. The parties were
given leave to file briefs which have been received from
Respondent.
Upon the entire record in this case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, a Florida corporation, has its principal
office and place of business in Ocala, Florida, where it
engages in the retail and nonretail sale and distribution of
natural gas. In the course of its business during the
12-month period preceding issuance of the complaint,
Respondent purchased and received products valued in
excess of $50,000 directly from points located outside the
State of Florida. I find that Respondent is an employer
engaged in commerce within the meaning of the Act and
that assertion of jurisdiction herein is warranted.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed.
'The name of the Respondent appears as amended at the hearing.
'These findings and conclusions are based , in part , upon credibility
determinations of the Trial Examiner to which the General Counsel has
excepted . After a careful review of the record , we conclude that the Trial
Examiner's credibility findings are not contrary to the clear preponderance
of all the relevant evidence Accordingly , we find no basis for disturbing
those findings Standard Dry Wall Products . Inc 91 NLRB 544, enfd 199
F 2d 362 (C A 3) .
We do not find it necessary to pass on the Trial Examiner's discussion
of a "no-solicitation" rule, since the complaint did not allege the
promulgation or enforcement of an unlawful no -solicitation rule, and the
matter was not fully litigated
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Trial Examiner. Pursuant to
charges filed on March 22, 1968, by Teamsters,
11 THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The Union's organizing campaign and the election
Starting in October or November 1967, the Union
began a campaign to organize Respondent's employees.
On December 20, 1967, the Union filed a petition in Case
12-RC-2984 seeking a representation election among all of
Respondent's employees, including its office clerical
employees. On January 4 and 5, 1968, Respondent and
the Union, respectively, signed a Stipulation for
Certification Upon Consent Election, which the Regional
Director for Region 12 approved on January 8, 1968. By
the stipulation, the parties agreed to an election to be
conducted on January 12, 1968, among a unit of all of
Respondent's employees at its Ocala, Florida, bulk plant,
excluding its office clerical employees, salesmen, guards,
and supervisors as defined in the Act. The election was
'Respondent 's name appears as amended at the hearing
175 NLRB No. 67
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held as scheduled and resulted in a majority vote for the
Union, which was certified on January 22, 1968, as the
representative of the employees in the unit stipulated to be
appropriate by the parties. Since that date, insofar as the
record shows, Respondent has bargained with the Union
as representative of those employees.
2. The union activities of Sue Mitchell
Sue Mitchell was employed in Respondent's office at
the time the union organizing campaign started As the
representation petition indicates , at the outset of the
campaign , the Union sought to enlist all of Respondent's
employees in its cause. In November, 1967, Sue Mitchell
signed a union authorization card and thereafter
attempted without success to induce other office
employees to sign cards.
3. Respondent's knowledge of Mrs. Mitchell' s union
activities and imposition of a rule against talking
about the Union in the office
In late December an incident occurred during working
hours at the office, as a consequence of which, Mrs.
Mitchell's union activities became known to Respondent2
and Respondent instructed the office employees not to
talk about the Union during working time.
Mrs. Mitchell had scheduled a meeting to be held at
her home to which she had invited other office employees
to meet a union representative. On the morning before the
scheduled meeting, while at work, Mrs. Mitchell asked
Hilda Neuschaeffer, a fellow office employee, if she was
coming to the meeting the next evening. Mrs.
Neuschaeffer replied that she was not. In the course of
their conversation Mrs. Neuschaeffer told Mrs. Mitchell
that she had received a raise.' Mrs. Mitchell expressed
surprise and asked how much her raise was. Mrs.
Neuschaeffer stated that she was being paid $1.60 an
hour.
Later that morning, Mrs. Mitchell passed a note to
Lona Connell, another office employee, indicating that
Mrs. Neuschaeffer had received a raise, and she spoke to
Mrs. Connell, telling her about the raise and commenting
that if the Union came in, Respondent would not be able
to discriminate between employees.
'Several witnesses testified as to all or portions of the incident While
there are differences in detail in their testimony , the essentials of the
incident insofar as it relates to this proceeding are not in dispute. My
findings are based on a synthesis of the testimony relating to the incident,
resolving specific credibility conflicts as indicated below . Although
Respondent contends that this incident occurred in January following a
Union meeting at a Holiday Inn which the office employees attended, the
testimony supports the finding that it occurred in late December. Thus
Mrs Mitchell testified that she believed a meeting at her home scheduled
for the following day was to have occurred before the Holiday inn
meeting . While Mrs Mitchell did not indicate complete certainty as to the
timing , Mrs Connell also testified that the incident occurred at the time of
the scheduled meeting at Mrs Mitchell 's house and that thereafter Mrs
Connell attended the Holiday Inn meeting Although Mrs Neuschaeffer
indicated greater uncertainty as to the timing of the scheduled meeting in
relation to the incident , she also testified that at one point she mentioned
her plans to attend the meeting in connection with the incident , and she
placed the incident in late December
'According to Mrs . Mitchell , Mrs Neuschaeffer volunteered this
information when Mrs Mitchell stated that the Union would probably get
them raises According to Mrs Neuschaeffer , she revealed it in response to
specific questioning by Mrs Mitchell I find it unnecessary to resolve this
dispute.
During the morning Mrs . Neuschaeffer went to Mrs.
Caldwell, the office manager , who had previously told
Mrs. Neuschaeffer not to mention her raise to the other
employees. She told Mrs. Caldwell that Mrs. Mitchell had
made her tell Mrs. Mitchell about her raise and that she
was afraid she would be fired. Mrs Caldwell assured her
that she would not be fired and told her that she would
speak to Respondent's General Manager Kennedy and tell
him what had happened. Mrs. Caldwell spoke to Kennedy
who asked her to speak to Mrs. Mitchell and explain that
they could not have things like that going on.
Around lunchtime Mrs. Caldwell called Mrs. Mitchell
into Kennedy's office. Mrs. Caldwell told Mrs. Mitchell
that Mrs Neuschaeffer was upset because Mrs. Mitchell
had called her inconsiderate and because Mrs. Mitchell
had made her tell about her raise Mrs. Caldwell told
Mrs. Mitchell that they did not like to have things like
that discussed. Mrs. Mitchell took issue with Mrs.
Neuschaeffer's version of their earlier conversation. In
explaining the incident to Mrs. Caldwell, Mrs. Mitchell
told her about the Union and the meeting she had planned
at her home'
After leaving the office Mrs. Mitchell again spoke with
Mrs. Neuschaeffer and Mrs. Connell She told them that
she did not trust Mrs. Neuschaeffer and accused Mrs.
Neuschaeffer of lying to Mrs. Caldwell when she told
Mrs Caldwell that Mrs. Mitchell had badgered her and
asked her if she had received a raise.' Mrs. Mitchell, who
worked part time, left for the day shortly after this
conversation.
A while later, while Mrs. Caldwell was out to lunch,
Kennedy entered the office and discovered Mrs.
Neuschaeffer and Mrs. Connell crying. He asked what
was wrong. Mrs. Neuschaeffer told him that Mrs.
Mitchell had made Mrs. Neuschaeffer tell her about her
raise . Kennedy told her it was nothing to be upset about
and calmed them.
After Mrs. Caldwell returned from lunch, she talked
with Kennedy who told her to tell the office employees
that they would have no more union talk on the job. Mrs.
Caldwell returned to the office and told Mrs.
Neuschaeffer and Mrs. Connell that there would be no
more union talk in the office during working hours.` Mrs.
Neuschaeffer initially protested that they had not been
talking about the Union on the job, but she and Mrs.
Connell then disclosed the full content of Mrs.
Neuschaeffer's conversation with Mrs. Mitchell. At the
time they indicated that they had some interest in the
Union and wanted to attend a union meeting to find out
about it. Mrs. Caldwell spoke to Kennedy again, and
Kennedy then spoke to Mrs. Neuschaeffer and Mrs.
Connell further, telling them that it was their prerogative
to go to union meeings, find out about it, and decide for
'Although Mrs Caldwell testified at one point that she learned of the
relationship of the Union to the incident later in the day, her version of her
conversation with Mrs Mitchell corroborates Mrs Mitchell in this respect
'According to Mrs . Neuschaeffer and Mrs Connell , Mrs. Mitchell also
told them that if she was fired it would be their fault . Mrs. Mitchell denied
making this statement I find it unnecessary to resolve this conflict as it is
not essential to resolution of the issues before me.
'Although Kennedy testified that he did not know until later in the day
that the Union was involved in the incident , both Mrs. Caldwell and Mrs
Connell testified to this sequence of events This sequence of events makes
sense only if Mrs Caldwell had communicated to Kennedy the substance
of her earlier conversation with Mrs Mitchell Although Mrs Caldwell
and Kennedy testified that they were surprised shortly thereafter to learn
that the Union was involved in the first conversation between Mrs
Mitchell and Mrs Neuschaeffer , their testimony in this regard is not
credited.
GULF NATURAL GAS CORP. 419
themselves whether they wanted to join .7
On the following day, Kennedy called Mrs. Mitchell
into his office and cautioned her about talking union
business on company time.' In this connection Kennedy
also told her that she could do what she wanted on her
own time.
4. Talks between Kennedy and Mrs. Mitchell about
the Union
Between Christmas and January 1, Kennedy called
Mrs Mitchell into his office and talked to her for about
an hour with no one else present. During the conversation,
Kennedy showed her a wage scale from another gas
company and discussed the wages at that company He
told her that the employees of that company had not
received an increase in wages for quite sometime because
of the Union. She told Kennedy that Respondent's male
employees favored a union in order to gain job security.
Kennedy replied that he would always have the right to
hire and fire.'
On the night of January 4, the Union held a meeting at
the Holiday Inn for Respondent's employees. Mrs.
Mitchell attended the meeting along with several other
office employees including Mrs. Connell and Mrs.
Neuschaeffer. At that time the office employees were
informed by Union representatives that they could not
vote in the same unit with Respondent's other employees,
but would have to vote in a separate unit.10
On the morning after the meeting at the Holiday Inn,
Kennedy again called Mrs. Mitchell into his office and
elicited her opinion of how the Union was going." Mrs.
Mitchell told him that she thought it was going in favor of
the Union Kennedy replied that that was not what the
other girls had told him. He did not indicate what other
girls had spoken to him.':
5. The alleged warning to Mrs. Mitchell
According to Mrs. Mitchell, one morning around the
second week of January, Mrs. Caldwell came into the
office at a time when Mrs. Mitchell, Mrs. Connell, and
Mrs. Neuschaeffer were talking. Mrs. Caldwell said she
had talked to Kennedy the afternoon before and that
Kennedy had said that there would be no raises given in
the office and that if there was any more talk of the
Union the first person who mentioned the Union was to
be fired. Mrs. Mitchell testified that Mrs. Connell and
Mrs. Neuschaeffer were present when these statements
were made. Mrs. Connell testified that she never heard
Mrs. Caldwell make a statement in which the word
'Kennedy had given similar advice to another office employee who had
asked whether she should attend Union meetings
'Mrs Mitchell testified that Kennedy told her this on a later occasion
after the Union meeting in early January I find it more likely that the
instruction was first transmitted to her immediately after the incident, as
Kennedy testified
'Mrs Mitchell so testified Kennedy did not contradict her testimony,
but testified generally that before the election he had occasion to talk to
employees about the Union and referred to Union contracts 1 have
credited Mrs Mitchell as to this conversation
"The union representatives told them that if they signed cards promptly
they might be able to vote on the same day as the other employees
"Mrs Mitchell 's testimony indicates that she did not recall the exact
words used by Kennedy but that Kennedy did not ask in so many words
what had taken place at the meeting.
"Mrs Mitchell 's testimony as to this conversation was not contradicted
by Kennedy
"firing" was used in connection with unions. Mrs.
Caldwell also denied using the words firing or terminated
in her comments to any of the office employees
concerning the Union.
In the absence of any evidence to indicate that there
was further talk about the Union in the office after late
December it is difficult to understand what prompted a
repetition of the instruction during the second week in
January. However, no witness took issue with Mrs.
Mitchell's version except to deny that there was any
mention made of firing or termination at the time. As
Mrs. Connell impressed me as credible in her testimony,
and there is no evidence of provocation for the remarks
attributed to Mrs. Caldwell, I conclude that to the extent
that Mrs. Caldwell repeated the instruction not to talk
about the Union in the office, it was not coupled with any
threat of discharge.
6. The discharge of Sue Mitchell
Sue Mitchell started to work for Respondent in May
1963 as an office clerical employee. There were four other
office clerical employees employed by Respondent at the
time of the events here involved, all of whom were junior
to Mrs. Mitchell. Mrs. Mitchell's duties involved keeping
records relating to turning on and turning off gas meters,
final bills, and deposit refunds. She put data relating to
these matters in form for use in Respondent's data
processing equipment at another location from which
Respondent's bills were sent.
Mrs. Mitchell worked full time for Respondent the first
2 or 3 years of her employment. Following an automobile
accident, on the advice of her doctor, she asked
Respondent' s manager to be permitted to work part time.
Permission was granted, and thereafter she worked 5 days
a week for 5 hours a day from 8 a.m until I p.m." The
other office employees worked from 8 to 5 each day with
one hour for lunch.
On February 9, 1968, the city of Ocala adopted a new
numbering system for its streets resulting in a change in
all house addresses in the city. As indicated in a news
article published shortly before that date, postal
regulations required that the post office honor old
addresses for a period of 2 years, but residents were urged
to notify all correspondents, including utility companies of
the change in their addresses. Notices were delivered to all
residents on February 9 informing them of their new
house numbers and street names and urging them to take
immediate steps to change their addresses.
Shortly before the change took effect, Mrs. Caldwell
told Mrs. Mitchell and Mrs Connell that whenever they
had any slack time they should go to the office area
downstairs and help make preparations for the change. On
one occasion around February I they did so They worked
at listing on yellow legal pads the old house numbers and
street names for each gas meter in Ocala along with
names of the persons last living there.
On February 16, close to Mrs. Mitchell's regular
quitting time , Mrs. Caldwell came to her desk, put an
"When Mrs Caldwell was promoted to office manager sometime during
the latter half of 1967, Mrs Mitchell on behalf of herself and two other
office clerical employees expressed the opinion to Mr Kennedy that they
should have been given the opportunity to occupy the job previously held
by Mrs . Caldwell in preference toa junior employee to whom it was given.
Kennedy told her that he had not considered her for the job because she
had indicated that she did not want to work full time She then confirmed
that she preferred to work part time, but indicated that she was speaking
for the other employees as well as herself.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
envelope on the desk, and told Mrs. Mitchell that her
services were no longer needed. The envelope contained a
check for severance pay from which an outstanding gas
bill owed by Mrs. Mitchell was deducted. Mrs. Caldwell
expressed regret at having to tell Mrs. Mitchell this news
Mrs. Mitchell asked Mrs. Caldwell if she thought they
were releasing her because of her union activities Mrs
Caldwell replied that she did not. She explained that
Kennedy had told her that Respondent's president had
required him to cut down on employment and that
Kennedy had said nothing about the Union or the quality
of her work."
Before Mrs. Mitchell left the office that day Kennedy
arrived and called Mrs Mitchell into his office. He told
her he was sorry that he had to let her go but that the
president of the Company, Mack Lewis, had been on his
neck and he had to let Mrs. Mitchell go for economic
reasons. He explained that she had been selected for layoff
because she was a part time employee. He told her that he
was pleased with her work and would give her a good
recommendation. Mrs Mitchell then asked him why she
was not given an opportunity to work full- time since there
was a woman in the office who had only been with
Respondent for about 6 months. Mrs. Mitchell told
Kennedy that if given an ultimatum she would work full
time to keep her job. Kennedy replied that the die had
been cast. Kennedy said nothing about her prospects for
reemployment by Respondent.15
That evening, Mrs. Mitchell's husband telephoned
Kennedy at his home. Although there is some dispute over
the exact words used by Mitchell, it is clear that Mitchell
was upset both over his wife's layoff and the deduction of
his gas bill from her severance pay and that he questioned
Kennedy about both. Mitchell asserted that the layoff was
unjust and that the law prohibited deductions from
employees pay. He indicated that he either could or would
take Kennedy to court and before the NLRB. Mitchell
told Kennedy that he wanted no more service from
Respondent, asked to have his gas disconnected
immediately." During this conversation Kennedy told
Mitchell that Mrs. Mitchell was permanently terminated
and that he could see nothing in the future for her with
Respondent
Mrs. Mitchell was never recalled by Respondent, but
on March 12, 1968, Clara Long was employed as an
office employee by Respondent, restoring its office force
to its pre-February 16 size." Mrs. Long worked for
approximately 2 months and left. She was replaced by
Mrs. Richardson who worked approximately the same
number of hours a week as Mrs. Mitchell had before her
discharge.
"These findings are based on a composite of the testimony of Mrs
Mitchell and Mrs Caldwell Further testimony of Mrs Mitchell as to
statements by Mrs Caldwell concerning Mrs Caldwell 's ability to do Mrs
Mitchell's work is considered below
"During this conversation , Mrs Mitchell asked Kennedy if the reason
for her lay off was a personality conflict Her testimony does not indicate
what response he made, although in the context of her testimony and
Kennedy's it would appear that Kennedy either answered negatively or
repeated the cause he had previously indicated for her layoff Although her
testimony is not entirely clear in this regard , it appears that she intended
by this question to refer to her union activities but did not do so explicitly
"According to Kennedy , Mitchell stated that he was "going to get me"
which Kennedy construed as a threat of bodily harm Mitchell denied
making such a statement Mrs Mitchell ' s mother, who overheard the
conversation at Mitchell 's end , testified that she did not hear Mitchell
make any threats
"At the hearing the parties were unable to establish the exact date of
Mrs Long's hire At my request the parties submitted a stipulation after
7. Respondent's explanation for the discharge
Through the testimony of Respondent's General
Manager Kennedy, Respondent explained its decision to
lay off Mrs. Mitchell as motivated by economic
considerations. A substantial percentage of Respondent's
gas sales is for heating purposes, and Respondent's
volume of business is directly related to weather
conditions The guideline used in the industry as an
indicator of weather conditions is the degree day. The
number of degree days for a 24-hour period is the number
of degrees by which the mean average temperature for
that period falls short of 65 degrees. The period between
October of one year and April of the following year
generally constitutes the heating season in the State of
Florida. For a 10-year period the average number of
degree days during the heating season has been
approximately 1,050, most of which are usually registered
before the end of March.1e
For the heating season starting in the fall of 1967,
through the end of January 1968, in Ocala, Florida, there
had been 395 degree days. For the comparable period in
the previous heating season there had been 465 degree
days, and the average number of degree days for that
portion of the heating season for the past 10 years had
been 687 degree days, indicating that Respondent's
volume for the 1967-68 heating season was substantially
subnormal
On January 15, 1968, Respondent's president, Lewis,
whose office is located at the offices of the Respondent's
parent corporation in Panama City, Florida, sent Kennedy
a letter. The letter stated:
"I am alarmed at the continued increasing expense and
cost of operation of our Ocala division. This, coupled
with what appears to be a very poor winter, is going to
cause us to cut overhead and expenses to the bone. The
Executive Committee of the Board of Directors has
made an intensive examination of your operation and
we recommend the following immediate action:
(1) Cut personnel to the bare minimum and when the
last of the cold weather is over, cut back to a skeleton
crew that will onlyjmaintain yourself m''a safe operational
position.
(2) Watch carefully all purchases and buy no more
than the absolute minimum.
(3) Make no purchase of capital equipment without
prior authority from this office.
I trust that you will institute these austere measures
as fast as it is practical to do so.
Kennedy did nothing about the matters referred to in
the letter for approximately a month after its receipt. On
February 9, Kennedy saw Lewis in Orlando. Lewis asked
Kennedy if he had implemented any of his instructions.
Kennedy told him that he had not.
Thereafter, Kennedy evaluated Respondent's labor costs
which were a large factor constituting most of
Respondent's expense budget According to Kennedy,
after looking over the office and plant forces he made the
decision to cut the personnel at the office by letting Sue
Mitchell go and to cut out Saturday morning overtime
work at the plant which had been performed by employees
Joe Pierce and Ronnie Hooks.
the hearing establishing that date. I have marked the stipulation as, TX
Exh. I and have received it in evidence.
"Respondent relies in its business on United States Department of
Commerce climatological monthly reports as its source of degree day
information
GULF NATURAL GAS CORP. 421
On February 16, Kennedy told the superintendent of
the gas plant that there would be no Saturday work.19
Kennedy testified that it was necessary to permit Hooks
to work Saturday mornings until approximately April
because a number of house-trailer owners came to the
plant on Saturday mornings to have gas cylinders filled at
the platform. Pierce, however, was immediately taken off
Saturday work, except when Mr Boney, the plant
superintendent was absent.20 In April, Respondent changed
its policy and no longer kept the gas plant open on
Saturday mornings. Pierce and Hooks did not work
Saturdays since then.21 In addition to these measures,
Kennedy watched daily overhead and overtime
Later on May 3, Respondent laid off two employees, J.
C. Stenson, a laborer, and John Kaiser, a bulk
truckdriver 22 In July two additional laborers were hired.
At that time a bulk truckdriver was hired to replace
another driver who quit.
Kennedy also testified as to the reasons why he selected
Mrs. Mitchell for layoff, why it became necessary to hire
an additional office employee thereafter, and why he did
not recall Mrs Mitchell. As to the former, he testified
that as he looked over his personnel to determine who to
lay off, he was aware that fringe benefits for part-time
employees cost as much as those for full-time employees
and that those working full time needed their fobs because
their jobs were their sole means of support. According to
Kennedy, he took these factors into consideration in
determining to lay Mrs. Mitchell off Kennedy testified
that it would have made no difference if Mrs. Mitchell
had offered to work full time as he had thought about the
decision before it was made and had decided to terminate
her Kennedy also testified, although not offering it
explicitly as a reason for selecting Mrs. Mitchell for
layoff, that connection and disconnection of meters, which
Mrs. Mitchell's clerical duties related to, was heaviest
before and after the heating season.2J
For Kennedy's later decision to hire an additional office
employee in March, he explained that the weather picture
had picked up considerably and that new construction had
increased so that he did not believe that Lewis would
object to it. According to Kennedy the change of address
cards did not start to come in immediately after the post
office notices were mailed to Ocala residents, but an
avalanche started about 2 weeks later. He explained that
this was a major reason for hiring another employee at
that time.
"Kennedy testified that it took him that long to act because he did not
want to make any snap judgments
"Boney was off on 2 or 3 weekends in the subsequent 2 months and
Pierce worked on those days
"Employee Lamb testified that Saturday overtime was not eliminated
until mid-May and that he was one of the employees affected by the
change However, Kennedy testified that he had confirmed his recollection
by reference to payroll records before testifying , and no request was made
to inspect the records I have credited Kennedy in this regard
"On that date also a cylinder truckdriver quit He was replaced by two
city firemen, each of whom worked half time when off duty as a fireman.
Kaiser was offered this job but rejected it Kaiser apparently had an
understanding with Respondent that he would not work from mid-July
until Labor Day each year in order to care for some property he owned
"Disconnections occur usually in April and final billings are sent out at
that time installations and initial billing and bookkeeping arrangements
occur throughout the year, although builders of residences usually attempt
to complete their work before September , and in 1968 there were a number
of new installations during August Mrs Mitchell testified that the busy
season in the gas industry was from December through March She was
not asked , however, when her duties were heaviest, and I have credited
Kennedy in this regard.
Kennedy explained that he did not discuss the
possibility of recall with Mrs. Mitchell at the time of her
layoff because he did not want to hold out hope to anyone
and made it a policy never to promise anyone anything.
However, he also testified that he would have recalled
Mrs. Mitchell instead of hiring Mrs. Long but for the
telephone call that he received from Mr. Mitchell on the
evening of her discharge.
B Concluding Findings
1. The alleged violations of Section 8(a)(1)
The complaint alleges that Respondent violated Section
8(a)(1) of the Act by the conduct of General Manager
Kennedy in interrogating Mrs Mitchell on January 8,
1968, and by the conduct of Mrs. Caldwell in warning
employees in mid-January that the first of them to talk
about the Union in the office would be fired. Respondent
admits that Kennedy and Mrs. Caldwell are supervisors
and agents of Respondent.
The first allegation refers to the conversation between
Kennedy and Mrs. Mitchell following the union meeting
at the Holiday Inn. Although I am satisfied that the
conversation occurred, Mrs. Mitchell's testimony does not
establish with any certainty what Kennedy said at that
time. Initially she testified that "He asked me exactly -
he didn't say in so many words what had taken place at
the meeting like it seemed that it was going well, or what
was my opinion of it." Although she then responded
affirmatively to a leading question, indicating that he
asked her what had happened at the meeting, she added in
response to an almost identical question, "Well, he asked
me more or less, because when I had told him that I
thought the meeting - the men seemed to be going along
with it, he said my story didn't go along with the rest of
the girls." Although it appears that the meeting was
discussed, I cannot conclude on the basis of Mrs.
Mitchell's testimony and the state of the record before me
that Mrs. Mitchell was interrogated in violation of Section
8(a)(1).
As for the other alleged violation of Section 8(a)(1) as
set forth above, the evidence is in dispute as to whether
Mrs. Caldwell threatened discharge of the next person
who talked about the Union in the office. Although I have
credited Mrs. Connell's denial that there was any mention
of firing or termination in her presence, in my view it is
immaterial whether the threat was made. If the
restrictions on talking about the Union in the office,
which Respondent admittedly imposed, were valid, then it
was also proper to indicate that discipline would be
imposed for their breach. If they were not valid, then the
Act was violated whether the discipline which would ensue
was made explicit or left implicit.
A restriction against solicitation during working time is
presumptively valid in the absence of evidence which
indicates that it was discnminatonly imposed.2d Among
the factors to which the Board looks in determining the
motivation for imposition of a no-solicitation rule is the
timing of its imposition and whether it was applied
uniformly to all forms of solicitat ion." Here Respondent's
restriction was imposed during a Union campaign. As
Mrs. Mitchell's uncontradicted testimony establishes,'
"The Wm H Block Company, 150 NLRB 341 Although it appears
that the restriction which was orally imposed may not have been precisely
worded, it is clear from Mrs. Mitchell's testimony that it was intended and
understood only to apply to working time
"Ward Manufacturing, Inc, 152 NLRB 1270.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office employees had freely talked about a variety of
topics before it was imposed, and the restriction extended
only to Union talk. However, the total circumstances
must be considered," including the incident in late
December which led to imposition of the restriction. At
that time, as Respondent learned, discussion of Mrs.
Neuschaeffer's intention not to attend a union meeting led
to a dispute between Mrs. Mitchell and Mrs. Neuschaeffer
during which angry words were exchanged " Following
Kennedy's observation of Mrs. Connell and Mrs.
Neuschaeffer in tears in the office and after Kennedy
spoke with Mrs. Caldwell about it, the restriction on
union talk in the office was imposed. Insofar as the record
shows, no similar restriction was placed on Respondent's
other employees, and the office employees were assured
that what they did on their own time was not
Respondent's concern. In these circumstances, I conclude
that the restriction on union talk in the office was not
imposed for discriminatory reasons but was intended to
avoid a repetition of the disruption in the office during
working time which had occurred on the day the
restriction was imposed. Accordingly, I find that
Respondent did not violate Section 8(a)(1) by restricting
union talk in the office, whether or not the restriction was
accompanied by warning of a discharge for its breach.
2. The alleged violationof Section 8(a)(3)
The complaint alleges that Respondent terminated and
refused to reinstate Sue Mitchell because of her Union
activities. The General Counsel makes two principal
contentions: ( 1) Even assuming that an economic layoff
was justified in February, Mrs. Mitchell should not have
been selected, and (2) an economic layoff was not justified
but was a pretext to cloak a discriminatory discharge.
In support of the first of these contentions, the General
Counsel argues that Mrs. Mitchell was the most senior of
the office employees, she was not the only part time
employee employed by Respondent, she was not offered
an opportunity to work full time in lieu of being laid off,
and no other office employee was able to perform her
duties.
Although Mrs. Mitchell was most senior among the
nonsupervisory office employees, she was the only office
employee who worked part time. There is no evidence as
to the extent to which Respondent followed seniority in
making personnel changes, and Mrs. Mitchell's status as a
part-time employee was a rational basis for overriding her
seniority in any event. It is true that Respondent
employed another woman on a part time basis elsewhere
in its operations, but she worked at the plant and her
principal duty was to dispatch Respondent's drivers and
service men Although her duties included some record
keeping, they were substantially different from Mrs.
Mitchell's, and the General Counsel has not established
sufficient basis to conclude that she should have been laid
off in place of Mrs. Mitchell
It is conceded that Respondent did not offer Mrs.
Mitchell an opportunity to work full time in lieu of being
laid off. However, Mrs Mitchell in the past had worked
full time, had shifted to part-time work at her own
request, and had affirmed her desire to work part time at
the time of Mrs. Caldwell's promotion to office manager.
"The William H Block Company, supra
"Although the timing of the exchanges between Mrs Mitchell and the
other employees as well as the scene observed by Kennedy is not clear, it
appears that they occurred during worktime and not on break or lunch
time
Kennedy testified that he chose Mrs. Mitchell for layoff
because she was a part-time employee whose fringe
benefits cost as much as a full-time employee and because
the other office employees depended on their earnings as
their sole means of support." Even assuming that under
some circumstances, Respondent might have been
expected to offer Mrs. Mitchell an opportunity to work
full time, I cannot infer a discriminatory motive from its
failure to have done so in these circumstances
The asserted uniqueness of Mrs Mitchell's ability to
perform her duties is not supported by the evidence That
less training was necessary for her duties than Mrs.
Mitchell testified appears not only from the testimony of
Mrs. Caldwell but also from the testimony of employee
Lamb as to the duties of Mrs. Long after she was hired I
have concluded that Mrs. Caldwell was credible in her
testimony as to the nature of Mrs. Mitchell's duties and
that she had performed Mrs. Mitchell's work in the past
when Mrs Mitchell was absent and when she was behind
in her work." Accordingly, I am not persuaded that the
evidence establishes that the selection of Mrs. Mitchell
was discriminatory, assuming that a layoff was justified.
Respondent's motivation for deciding to lay off any
employee raises a more difficult question. On the one
hand, the evidence leaves no doubt that the 1967-68
heating season was poor from the standpoint of demand
for gas as a heating fuel. Although Respondent's manager,
Kennedy, spoke to employees in an effort to persuade
them that they did not need a union , apart from the
discharge here in question there is no evidence of any
unlawful conduct by Respondent directed at the
organizational efforts of either the production employees
or the office clerical employees." There is also no evidence
of any union activity on the part of Mrs. Mitchell or the
other office employees during the month between the
election in the production unit and Mrs. Mitchell's
discharge."
On the other hand there are a number of factors which
cast doubt upon the validity of Kennedy's asserted
economic reasons for determining to reduce the size of the
office force in response to the letter received from
Respondent's president. Pnncipally, it is questionable
whether there was any basis for belief that the office could
function adequately without anyone in Mrs. Mitchell's
job, whatever the demand for gas. While it is true that
connections and disconnections of meters were less
"Neither of the factual premises for Kennedy's statement of reasons was
placed in dispute While Mrs Mitchell's offer to work full time, which
Kennedy rejected, answered the first of his reasons, it did not reach the
second of the reasons advanced by him.
"In this connection I do not credit Mrs. Mitchell 's testimony that at the
time of her discharge, Mrs. Caldwell told her that she did not know Mrs.
Mitchell 's job in its entirety.
"In this connection , I have not credited testimony of Mrs. Mitchell or
Holmes Schwann as to statements they attributed to Kennedy on the day
of the election among the production employees. Although I am not
persuaded that Kennedy was candid in testifying as to when he gained
knowledge of Mrs. Mitchell 's union activities or his actions and reasons
relating to her discharge , I am persuaded that he was both well advised
and careful in his statements relating to the Union I have credited his
denial of Mrs Mitchell 's testimony . Although Kennedy may have had less
reason to be cautious in his statements to Schwann, the vagueness of
Schwann's recollection of the time of the election and the circumstances
under which he volunteered his testimony to Mrs . Mitchell several months
after the election give me sufficient cause to doubt the accuracy of his
testimony in the face of Kennedy's denial . 1 again have credited Kennedy
"I also note in this regard that Kennedy was consistent in explaining the
reasons for Mrs Mitchell's discharge to Mrs Caldwell on the day of the
discharge and to employee Lamb thereafter
GULF NATURAL GAS CORP.
frequent during the heating season than before or after,
other regular office functions appear to have been
unaffected by the poor season, and Respondent's office
force was faced with an abnormal task as a consequence
of the change in Ocala house numbers. Although Kennedy
testified that the change of address cards did not arrive in
volume until a couple of weeks after notices were
distributed by the post office, it took little imagination to
foresee that there would be a substantial response. When
it did come, as Kennedy testified, it became a major
reason for the hiring of Mrs. Long. Mrs. Long started
work only a little more than 3 weeks after Mrs. Mitchell's
discharge, and undoubtedly the decision to hire an
additional employee was made before the day that she
reported for work. After Mrs. Long was hired,
Respondent maintained the level of its office force at the
same number as before Mrs. Mitchell's discharge,
indicating that there was more than a passing need for an
employee in Mrs. Mitchell's place. That Kennedy could
have genuinely anticipated a continuing capacity to handle
the necessary clerical work without an employee in Mrs
Mitchell's position is to be doubted."
Adding to the doubt is the manner in which Mrs.
Mitchell was laid off Although Kennedy received the
letter from Respondent's president in mid-January he took
no steps to implement it until February 9. Then after
considering the matter, he laid off Mrs. Mitchell with no
advance notice, without indicating any possibility of recall,
and with 2 weeks severance pay in lieu of notice. If
Respondent's concern was economy, I find these actions
difficult to reconcile with that concern. Kennedy conceded
that when he later laid off production employees, he gave
them 2 weeks notice and no severance pay. He attributed
his contrary action in Mrs. Mitchell's case to inexperience
as a manager rather than to any specific motive. He
attributed his failure to indicate any possibility to recall to
a policy of his not to hold out hope or make promises. It
seems clear that even if work was slack, Respondent could
get more for its money by letting Mrs. Mitchell work out
a notice than by paying her for no work in lieu of notice.
Also, it is possible to convey to an employee that she will
be considered for recall or rehire if a need occurs without
making promises or holding out unwarranted hope.
Kennedy described Mrs. Mitchell as an excellent
employee, and excellent employees are not generally so
abruptly set down.
In these circumstances, there is strong basis to conclude
either that Respondent's stated reasons for deciding to
layoff an office employee were not its true reasons or that
its decision was unwisely made. In deciding which was the
case, the failure to recall or rehire Mrs. Mitchell instead
of hiring Mrs. Long assumes critical importance. For, if
Respondent had no good reason for failing to rehire an
employee of proven worth over a period of 5 years, the
conclusion must follow that its decision to lay off Mrs.
Mitchell was not merely unwise but stemmed from a
determination to nd itself of Mrs. Mitchell irrespective of
its needs.
Kennedy explained his decision not to rehire Mrs.
Mitchell as based on the telephone call he received from
Mr. Mitchell on the evening of the day of her termination.
Mitchell's instruction to discontinue his gas service at the
conclusion of that conversation persuades me that
"In this connection , I find it unnecessary to decide whether , as Lamb
testified , Mrs Long , and later Mrs. Richardson performed the same duties
as Mrs Mitchell However duties were distributed in the office , it is clear
that additional office help was needed soon after Mrs. Mitchell 's layoff.
423
Mitchell was angry during his conversation with Kennedy
and spoke to Kennedy in anger . Although Mitchell denied
telling Kenedy that he was going to get him, and Mrs.
Collins testified that she heard no threats by Mitchell, I
am not persuaded that Kennedy's testimony represented
an unreasonable construction of Mitchell's words.
Mitchell concededly referred to the courts where he could
go to see about the things he was complaining about, and
I doubt that the reference was made in purely theoretical
terms. Rather I find it likely that Mitchell threatened to
sue Kennedy, as Kennedy testified. Whether or not
Mitchell's words were intended to convey more than an
intent to get Kennedy by resort to legal process, as
Kennedy testified he construed them, one cannot dismiss
as unreasonable a belief that the future utility of Mrs
Mitchell as an employee of Respondent was compromised
by Mitchell's call to Kennedy.
Mitchell's stated concern stemmed not only from Mrs.
Mitchell's termination, but from Kennedy's deduction of
an overdue gas bill from Mrs. Mitchell's severance pay.
Mitchell's instruction to Kennedy to discontinue his gas
service, an action that may be compared to one's cutting
of his nose to spite his face, demonstrated intensive
resentment. Although Kennedy's testimony that he feared
bodily damage from Mitchell may well have been
exaggerated, Mitchell's conduct was such as to raise a
substantial question as to whether the resentments
expressed by Mitchell would not carry over into any
future employment of Mrs Mitchell.
The burden of proof lies with the General Counsel to
establish by a preponderance of the evidence that Mrs.
Mitchell's discharge was caused by her union activities
and not by other considerations. Here, as I have found,
the evidence supports a conclusion either that
Respondent's asserted reasons for Mrs. Mitchell's
separation were not its true reasons or that the decision
was unwise. In choosing between these alternatives the
lack of a plausible explanation for failing to recall Mrs.
Mitchell would have controlling weight. But Respondent
has come forward with an explanation of sufficient
plausibility to leave the choice between the two
alternatives in doubt. In these circumstances, I conclude
that the evidence, while raising a strong suspicion as to
Respondent's motivation, is not sufficient to support the
conclusion that her layoff was discriminatory."
"In reaching this conclusion , I have also considered the timing of the
letter from Respondent's president to Kennedy, and Kennedy's delay in
acting pursuant to it. While it is true that the letter was sent on the next
work day following the election among the production employees, the
record shows that there was basis for concern over Respondent 's costs If
the letter was intended as a foundation for a pretextuous discharge it
would seem more likely that Kennedy would have acted promptly in
response to it than that he would have delayed Of course, it does not
follow that Kennedy could not have relied upon the letter to support a
discharge decided upon for reasons other than those set forth in the letter
I find the timing of the letter and Kennedy's delay in acting inconclusive
I have also considered testimony of employee Lamb that he spoke to
Mrs. Caldwell the night before the discharge when she told him that the
office employees were swamped with work According to Lamb, the
purpose of the call was to ask her to sign a union card , but during this
conversation he asked her how she liked her job as office manager,
explaining that she had recently been promoted Lamb testified that she
replied that they were swamped with work because of the cold weather and
changes in business tempo and that they were soon going to have to hire
more help . Mrs. Caldwell denied that she was ever asked to sign a card
and that she received a call from anyone the night before Mrs Mitchell's
lay off, although she testified that she could have talked to Lamb around
that time as she often spoke to Lamb and other employees. I have credited
Mrs Caldwell The references to Mrs . Caldwell's job, the cold weather,
and the change in business tempo in view of the other circumstances in this
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, as I have not found that Respondent
violated the Act as alleged in the complaint, I shall
recommend that it be dismissed.
Upon the basis of the above findings of fact and the
entire record in this case, I make the following.
CONCLUSIONS OF LAW
1. Gulf Natural Gas Corp. and Ocala Bottle and Gas
Company is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act
2. Teamsters, Chauffeurs, Warehousemen & Helpers
Local Union No. 385, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3 Respondent has not engaged in any of the unfair
labor practices alleged in the complaint.
RECOMMENDED ORDER
case all suggest that if Lamb discussed these matters with her , he did so at
an earlier time in the heating season and not on the night before Mrs
Mitchell's discharge
Upon the basis of the foregoing findings of fact and
conclusions of law, I recommend that the Board issue an
order dismissing the complaint in its entirety.