Interurban Gas Corp.

National Labor Relations Board - Board Decisions

Jan 29, 1962

135 N.L.R.B. 604 (N.L.R.B. 1962)

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Dominguez J. Keim J. Mumford 0. Schaefer
R. Dowis W. Kennicutt M. Muro B. Schieler
A. Downey J. King R. Nichols J. Scholes
R. Dunbar 0. Kreutzer S. Niemiec M. Schraeder
F. Dyer H. Lewis R. Nugent F. Senter
D. Easum A. Loera J. Olson R. Serren
R. Faith R. Lugar R. Ostrom F. Slocum
D. Farewell D. Lynch A. Pancic D. Stewart
J. Farrace R. Magness A. Parker J. Stipec
E. Gardner J. Martin J. Phillips W. Tarr
G. Gettle N. Martinich R. Phillips D. Thiebaud
G. Hall S. Matlack A. Podrasky L. Thompson
L. Hamilton E. Mayberry E. Polley M. Thorsen
F. Hancock L. McCrea E. Prester M. Tullock
R. Harding J. McGrath E. Prouty E. Ullinger
1. Hernandez E. McGuire N. Raney G. Vandiver
L. Higginson R. McIntyre L. Ratcliffe C. Vinski
M. Hillegass G. McKay R. Recob J. Watford
W. Hinton J. McNamara M. Reynolds E. Wesling
A. Hoffman R. McNamara J. Reyon H. Wheaton
0. Holte A. Millar S. Riccio D. Wooden
P. Holte A. Mitchell M. Richards E. Wooden
J. Jensen J. Mitchell P. Risser G. Wright
J. Johnson J. Morgan L. Robbins
D. Juneman M. Muella J. Sawaya
Interurban Gas Corporation and Donald Gillingham . Case No.
7-CA-3202. January 29, 1962
DECISION AND ORDER
On November 7, 1961, Trial Examiner Ramey Donovan issued his
Intermediate Report herein, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices violative of Sec-
tion 8(a) (3) and (1) of the Act and recommending that it cease and
desist therefrom and take affirmative action, as set forth in the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the Trial Examiner's rulings and finds
that no prejudicial error was committed. The rulings are affirmed.
The Board has considered the Intermediate Report, the exceptions,
and the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner.
ORDER
The Board adopts the Recommendations of the Trial Examiner
with the modification that provision 2(d) read: "Notify the Regional
Director for the Seventh Region, in writing, within 10 days from the
135 NLRB No. 67.
INTERURBAN GAS CORPORATION 605
date of this Order, what steps the Respondent has taken to comply
herewith." I
'In the notice attached to the Intermediate Report marked "Appendix," (1) the words
"Decision and Order" are hereby substituted for the words "The Recommendations of a
Trial Examiner." In the event that this Order be enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and
Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing
an Order" ; and (2) the following sentence is hereby inserted after the sentence beginning
"This notice must remain posted . . ', which appears at the foot of the page: "Em-
ployees may communicate directly with the Board's Regional Office (232 W. Grand River,
Detroit, Michigan; telephone number, 962-3830) if they have any question concerning
this notice or compliance with its provisions."
INTERMEDIATE REPORT
This proceeding was held before Ramey Donovan, the duly designated Trial
Examiner, at Detroit, Michigan, on September 12, 1961.
The sole violation of law alleged in the complaint is the discharge of employee
Donald Gillingham on March 14, 1961, for alleged union or concerted activities.
Respondent in its answer denied that Gillingham was discharged for the reasons
alleged by the General Counsel. All parties were represented by counsel and par-
ticipated fully in the hearing. Briefs were filed by the respective counsel and have
been fully considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FACTUAL FINDINGS AND CONCLUSIONS OF LAW
1. THE BUSINESS OF RESPONDENT
Interurban Gas Corporation, herein called Respondent or the Company, is a
Michigan corporation with its principal office and place of business in Trenton,
Michigan, where it is engaged in the sale and distribution of propane.
During the fiscal year ending August 31, 1960, a representative period, Respondent
sold and distributed from its Trenton, Michigan, plant products valued in excess of
$100,000 of which products valued in excess of $50,000 were furnished to, among
others, Canada Dry Company, Detroit Edison Company, Mobil Oil Company, The
Kroger Company, Goebel Brewing Company, and Toledo & Ironton Railroad, each
of which enterprises annually purchases and receives deliveries of goods in the
amount of $50,000 or more at its place of business in Michigan, which goods are
shipped to it directly from points outside Michigan.
In fact and in law Respondent is an employer engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
In fact and in law International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Donald Gillingham commenced work for Respondent in October 1959 as a driver-
salesman. Briefly stated, a driver-salesman of Respondent drove a truck bearing
cylinders of propane gas to the homes or trailer homes of customers and sold the
product to the customers. Donald Gillingham had received one automatic wage
increase and two merit increases prior to his discharge on March 14, 1961. Other
employees of the Company at the Detroit installation involved herein are Hodge and
William Gillingham, brother of Donald, who also were driver-salesmen. Ericks was
a driver-salesman who ran what was described in the record as the bulk truck. Janisse
had been a driver-salesman prior to Donald Gillingham's employment but performed
service work thereafter. Sloan was a dockhand at the company premises and Lock-
land was the garage mechanic. There was an office clerical employee, Charmagne
Murphy, and two supervisory employees, Glenn Milstead, the general manager and
highest ranking supervisor, and Ralph Wyatt, the service manager, also a supervisor.
In the early part of 1961 there was considerable employee dissatisfaction regarding
certain changes that the Company had made in the employees' insurance coverage,
the supplying and cleaning of work uniforms, and some requirements affecting the
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amount of physical work to be performed by the driver-salesmen in filling cylinders
and so forth.
Wyatt became concerned about the attitude of the employees and what he con-
sidered to be lack of employee cooperation in carrying out their duties. Around the
middle of February 1961 Wyatt held a meeting of Respondent's employees. Wyatt
testified that he had heard that the men blamed him for the changes in the insurance
and the work uniform arrangements . According to Wyatt, he told the men ". . . we
have no union here . . ." and when Donald Gillingham said, "Well, who can we talk
to," Wyatt replied, "You can talk to me" and he (Wyatt) would do what he could to
resolve any grievances. During the meeting Donald Gillingham asked Wyatt if the
Company was antiunion and Wyatt said, "As far as I know they're not. They own
other companies which I understand most of them are union."
In this case, which is on the whole characterized by extremely sharp divergence in
testimony between the General Counsel's witnesses and those of Respondent, there is
substantial agreement regarding what transpired at the above-described February
meeting. Donald Gillingham in his initial testimony, which preceded that of Wyatt
and any testimony regarding the February meeting, stated, on direct examination
by the General Counsel, that Wyatt, in response to Gillingham's inquiry at the
meeting, said that the Company was not antiunion and had a union in an Illinois plant.
As I view the entire record, I regard Gillingham's forthright acknowledgement
that Wyatt did not express hostility toward unionism as one indication that Gilling-
ham was a basically honest witness. A witness attempting to fabricate from the
whole cloth a picture of an employer discharging an employee for union activity and
a witness who was giving false testimony regarding various occurrences, hereinafter
discussed, would not hesitate, I believe, to attribute to a supervisor such as Wyatt,
expressions of hostility toward the idea of a union. In fact, expressions of antiunion
sentiment preceding a discharge are common hallmarks in Section 8(a) (3) cases.
The conflict in testimony between the General Counsel's witnesses and those of Re-
spondent on crucial matters is so great, as we shall see, that the most careful appraisal
of the witnesses is required. In considering Donald Gillingham and the witnesses who
generally supported him it was apparent that Gillingham was either a truthful witness
or, not only an untruthful witness but an ingenious one, who being about to be dis-
charged for unaccounted shortages in the Company's product, forthwith and skillfully
fabricated a union angle to his story and suborned untruthful testimony from other
witnesses who supported his contentions. Although, from experience, I do not under-
estimate the capacity of human beings for fabrication when something like a job is
at stake, I believe from my observation at the hearing and from the record that
Donald Gillingham was generally honest in his testimony and that he was not what
may be termed a sophisticated "unioneer." After testifying on direct examination, as
described above, regarding Wyatt's remarks, Gillingham did not attempt to dilute his
testimony when cross-examined by Respondent's counsel on the point, even though
it must have been apparent from the nature of the questions that Respondent was
desirous of establishing beyond any doubt that Wyatt had not expressed hostility
toward unions. Thus,
Q. During the time that you were employed by the Corporation did any-
body tell you that you coudn't belong to a Union?
A. No. In fact that was brought up at the Factory meeting that they weren't
anti-union.
Q. Did anybody ever tell you that you should not join a Union?
A. If they did I wouldn't have tried to join the Union.
The last-mentioned credited answer of Gillingham impressed me, in this day and age,
as the sentiments of a relatively disingenous employee. This is not the thinking of
a clever manipulator on the verge of being justly discharged who drags in unionism
as a deus ex machina to save himself.
Coming now to Wyatt's credited testimony as to what he said at the February
meeting certain observations are in order. As far as the record shows there was no
union talk or union organizing going on at the time Wyatt called the meeting. It was
therefore not a meeting called in the face of union activity. Gillingham's question as
to whether the Company was antiunion came from a clear sky. I believe that Wyatt's
answer was honest enough. He simply said that as far as he knew the Company was
not antiunion, evidently basing his view on the fact that he understood that some
of the other plants were organized. In short, it appears that, the unionization ques-
tion having never come up at the Detroit plant, Wyatt had never had occasion to
INTERURBAN GAS CORPORATION 607
either raise the question with his superiors or to receive guidance thereon.' There is
no evidence that Wyatt had consulted General Manager Milstead on the question
before the February meeting and it is unlikely that he did, there being no indication
that unionization was even suspected, since discernible or actual union sentiment
among the employees apparently did not exist. In the particular circumstance the
statement simply shows that Wyatt said that to his knowledge the Company was not
antiunion. Perhaps Milstead entertained the same sentiments but we do not know
one way or the other. It is helpful to Respondent in that the statement was made
publicly and that there is no independent evidence in the case of company opposition
to union activity prior to Gillingham's discharge. I have given this evidence full
consideration.
In his testimony Wyatt described Donald Gillingham as "the chief spokesman"
at the February meeting. He also stated that Gillingham was "creating dissension."
When asked to explain what dissension Gillingham was causing, Wyatt referred to
the February meeting which Wyatt said was supposed to be of "a friendly nature."
The witness went on to say that two employees (apparently not Gillingham) got into
an argument at the meeting; Wyatt then gave his account, previously described, of
how Gillingham after Wyatt's statement that "we have no union here" asked "Well,
who can we talk to" and asked if the Company was antiumon. Wyatt also testified
that one of the reasons why he had recommended Gillingham's subsequent discharge
was because he was a "troublemaker."
The next mention of the subject of unions was around the end of February 1961.
According to Gillingham's uncontroverted testimony, present in a group in the com-
pany office around quitting time were Donald Gillingham, Ericks, Wyatt, and the
secretary, Murphy. Gillingham said something to Ericks about a union and Ericks
said he would join a union if it was other than the Teamsters
The foregoing incident is indicative that Gillingham, who was the cause of "dis-
sension" in Wyatt's eyes, and who had asked about the company attitude toward
unions at the February meeting, was now pursuing, albeit rather vaguely, the subject
of having a union. At least the matter had reached a point where, in response to
Gillingham, Ericks had professed interest in some union other than the Teamsters.
Interestingly enough, Gillingham had broached the subject openly, in the company
office in Wyatt's presence, apparently in reliance on what Wyatt had previously said
about the Company, as far as he knew, not being antiunion. The union subject by
now, however, while still ill defined and inchoate, was beginning to loom as more
than a matter of academic interest or more than the simple inquiry of the February
meeting.
Within the next 2 weeks, Donald Gillingham, his brother, William and Hodge,
among themselves, discussed further the idea of a union. Hodge suggested that
Donald call the Teamsters Union and find out what were the benefits of membership.
Donald did so on March 13 and received information about the union pay scale,
insurance benefits, and retiremen plan. Donald was favorably impressed by what he
had learned and shared the information with his brother and Hodge who also were
receptive. Donald told Hodge the location of the union office and since Hodge passed
there on his route he agreed to pick up some union authorization cards on the follow-
ing day, March 14.
When Donald Gillingham returned to the company plant with his truck about
4 p in. on March 14, Hodge told him he had the cards and Hodge and William
Gillingham had already filled out theirs. Donald then signed his card. The three
men then went to see Sloan, the dockhand who was on the dock. Sloan was an illiter-
ate and Hodge and Donald explained to him the significance of signing or making his
mark on the card. Sloan asked about the benefits of joining the Union. The con-
versation continued in the pumphouse where Donald shut off the pump because of
the noise. Donald was the principal spokesman in trying to convince Sloan. The
time was about 4:15, shortly before quitting time. At length Sloan said he was not
interested. He said he would think about the matter and went into the company
office.
Donald Gillingham then went to the garage and spoke to Lockland, the mechanic,
about signing a union card. Lockland said he would join if all the others did. As
Gillingham left the garage, Wyatt came up to him and said, "I'm going to have to
let you go." Gillingham said, "Okay, if that's the way you want it." When the latter
went for his tools he told his brother and Hodge what had happened. Wyatt then
came back to where the men were and collected from Donald a wallet and a cash
1 Wyatt's employment with the Company totaled 5 years, all at the Detroit plant. He
had been a driver-salesman and serviceman and 2 years before the hearing had been made
service manager.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sum that had been given to the employee for use on company business. Hodge asked
Wyatt why he had discharged Donald. Wyatt simply said, "I was told to."
The day of the discharge, March 14, was a Tuesday and was approximately the
middle of the workweek. The workweek for the employees was Monday through
Friday. Payday was on Wednesday and normally the pay would be for the preceding
workweek. Donald returned to the plant on Wednesday, March 15, and received his
pay for .the preceding week. His wife picked up his pay for March 13 and 14 on
Wednesday, March 22.
On Friday, March 17, Sloan came into the Bonnie Lad Truck Stop, a restaurant
on Respondent's property. Respondent was the lessor of the restaurant concession.
The restaurant was in a separate building from that which housed Respondent's gas
plant and office but the buildings were adjacent. Respondent's employees patronized
the restaurant. Sloan spoke to Flossie Begeman on this occasion. Begeman was
employed as a cook and waitress in the Bonnie Lad. I credit Begeman's testimony
that on the aforementioned occasion Sloan told her that "three of the boys," the two
Gillingham's and Hodge, were being laid off by Respondent. Sloan did not testify
at the hearing. Begeman did not know at the time nor did Sloan indicate that Donald
Gillingham had already been terminated.
Begeman testified that on Monday, March 20, about 10 a.m., Wyatt and Milstead
came to the restaurant for breakfast. In speaking with the foregoing individuals
whom she knew as "Glenn" [Milstead] and "Ralph" (Wyatt] Begeman asked
if everybody was working. Milstead said that everyone was working except Don
(Gillingham). Begeman asked what had happened and Milstead said, "They was
trying to get the Union in and Don was the ringleader"; he also stated, according to
Begeman, that he was not going to have any union, that before he would let any of
the employees tell him what to do or how to run the job, in view of his many years
in the business, he would fire the whole bunch and hire new men.
Wyatt, when asked by Respondent's counsel whether he had any recollection of
the foregoing conversation said, "None whatever." He said he did not hear Milstead
say that he was not going to have a union. Milstead testified that he did not make
any of the statements attributed to him by Begeman. He stated that he had several
conversations with Mrs. Begeman concerning her husband who used to come in the
restaurant and have arguments with Mrs. Begeman. Milstead said, "As far as having
any conversation about our business, I don't remember."
Begeman had first worked in the restaurant on Respondent's property in May
1960 under the lessee referred to as "Betty." "-Betty" sold out in September 1960
and the new lessee was "Bonnie." Begeman continued to work for "Bonnie" until
April 21, 1961. Begeman left for a better job and higher wages. At the time of the
hearing she was a cook in a hotel. The General Counsel called her as his first
witness, out of logical sequence, since, he explained, Begeman had to get back to
her job.
On cross-examination Begeman said that in August 1960 she had spoken to Mil-
stead about the possibility of leasing the restaurant. She said that she decided later
that she was not interested in the lease. She also stated that Milstead never told her
that he (the Company) would not lease the restaurant to her. She denied that she
bore any resentment against Milstead. She is the mother-in-law of Hodge, one of
Respondent's driver-salesmen whose activities have been described above.
Milstead testified that Begeman had wanted him to lease the restaurant to a friend
of hers and Begeman was going to manage it. Although he did not tell Begeman
that he had decided against her, Milstead said that he leased the premises to Bonnie.
Begeman continued working at the restaurant under Bonnie for about 8 more months
and then, as we have seen, left for a better job. There is no evidence or statement by
Milstead that Begeman manifested any hostility of resentment toward him.
In addition to her demeanor, I have carefully considered the evidence relating to
Begeman, her testimony, and possible bias. I believe she testified truthfully and I
credit her testimony.
Corrine Gillingham, wife of Donald testified that on Wednesday, March 22, she
went to Respondent's office to pick up her husband's pay for March 13 and 14. On
that occasion she had a four-party conversation with Milstead, Wyatt, and Mrs.
Murphy. Mrs. Gillingham asked why her husband was discharged. Wyatt said
there were a lot of little things which she would not want to hear. Mrs. Gillingham
said that she and her husband thought that it was because of the Union. Wyatt said,
"that too" and Milstead nodded agreement. Mrs. Gillingham then said that she
had told her husband that he should not have been the one to call the Union, that
the other men who had been there longer should have done so? Milstead and
2 In length of service Donald Gillingham was the junior employee.
INTERURBAN GAS CORPORATION 609
Wyatt stated that the only reason the Union was wanted there was because the men
wanted to run the business their way and management was going to run it its way;
that Don was low man on the totem pole and they had to make an example of
someone and they started with Don and Bill ( Gillingham) "was very close to getting
it" and the other fellow; and "if we have to we will go from the bottom up to the
top and clear out everyone who wants to run the business their way."
Wyatt testified that he remembered the conversation with Mrs. Gillingham at which
Milstead and Murphy were present . He stated that he told her her husband would
not be rehired and, when asked whether he told her way , he said, "We discussed
several of the small things such as accidents that hadn't been reported until asked
about." Wyatt said he made no reference to the discharge being due to union activity.
Milstead , in testifying regarding the above conversation with Mrs. Gillingham,
said that when she asked why her husband was discharged "we just said there's a
lot of little things." Milstead said he heard no reference to the Union . Murphy
did not testify.
Mrs. Gillingham as the wife of Donald is obviously not a disinterested witness.
However, she convinced me that she was testifying truthfully and I so find.
With respect to Respondent 's defense in chief, Wyatt referred to a number of
instances of inefficiency on Donald Gillingham 's part. The recounted incidents
were: in December 1960 Wyatt timed Gillingham at one of his stops and found
that the employee took an excessive amount of time; in January or the first of Feb-
ruary 1961 Gillingham damaged an incinerator with his truck and did not report
the accident until questioned ; in the same period Gillingham bumped into a mail
box and did not report the matter promptly ; in January 1961 a Mrs. Hansen tele-
phoned and said her checkbook was in Gillingham 's truck and she wanted it returned;
Wyatt found the checkbook in the truck , did not disturb it, and apparently did noth-
ing further ; in December , Gillingham took too long to deliver five cylinders of gas
and charged the Company overtime (Wyatt stated that he discussed the matter
with Gillingham ); also in December the two Gillinghams put their combined loads
in Donald 's truck and left the other truck (William's) parked unattended for several
hours.
On March 6 , 1961 , Wyatt said that, as was customary on Monday , the two Gil-
linghams went together on the one truck , from which they would serve their com-
bined routes. When the men returned , Wyatt checked the truck and found a shortage
of 20 cylinders of gas. He called this to the attention of the Gillinghams. They
could not account for the shortage and after giving some explanation for some of
the missing cylinders , they still could not account for at least 10 cylinders. On
March 10, Friday , Jamsse , a company employee who had been a driver-salesman prior
to Donald Gillingham 's employment and who was doing service work on the dock
for the Company prior to March 15, unloaded Donald 's truck . The total number
of cylinders was computed from the number of empty cylinders placed on the dock
plus the loaded cylinders on the truck . The driver was obliged to turn in receipts
or invoices received from the sale of the gas that had been in the empty cylinders.
On this particular day, according to Wyatt and Janisse, the latter discovered two
empty cylinders on Donald Gillingham 's truck buried amid the full cylinders. The
two empty cylinders were allegedly not accounted for by the invoices . Janisse called
the matter to Wyatt 's attention and the latter verified the fact but did not call it to
Gillingham 's attention.
Wyatt testified that prior to Gillingham 's discharge he had no knowledge of his
union activities . He stated that for 6 or 8 months he was on the verge of letting
Donald Gillingham go and had warned him , but the first time he mentioned to
Milstead about terminating Gillingham was on March 6 when the 20 cylinders were
missing. In response to Wyatt on March 6, according to Wyatt , Milstead said,
"Well, let's wait awhile," we are "in a busy season . . Let's hold off a little while
and see if it'll straighten out." Wyatt said that the decision to discharge Gillingham
was made in the afternoon of March 14 . Wyatt recommended the discharge , calling
to Milstead 's attention the new shortage on March 10 . At the hearing Wyatt was
asked, "Was there any other reason given by yourself for wanting to discharge
Gillingham1" He answered , "I think at the time among other things he was a
troublemaker." The witness then referred to the dissension that Gillingham was
causing, as described earlier in this report.
Milstead testified that he decided to discharge Gillingham on March 6 when the
matter of the 20 missing cylinders came up. He said he knew nothing of Gilling-
ham's union activity. The only reason, according to Milstead , why the discharge
was not made at that time was because he did not have a replacement for Gilling-
ham, "You can 't just drop a route and tell everybody they have to freeze or go
634449-62-vol 135-40
•610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hungry." Milstead said that there was no mention of waiting to give Gillingham
.or the situation a chance to "straighten out." Milstead did not refer to the March 10
incident in his testimony.
The discrepancy between Wyatt 's and Milstead 's testimony , as to the decision
made on March 6 , is apparent . I also believe that Milstead , who was the ultimate
decision maker on the discharge , was not convincing in saying that the delay in
making the discharge was due to the lack of a replacement. Janisse had been a
driver-salesman before Gillingham was employed. During the latter 's employment
Janisse continued in Respondent 's employ, working on the dock and doing service
work. When Gillingham was discharged on March 14, Janisse went to work in his
place on March 15 and was still employed at the date of the hearing. A replace-
ment for Janisse was not hired until 6 weeks or 2 months later , indicating that
Janisse, the at-all-times available replacement for Gillingham , could be readily
spared without leaving a vital gap in the organization.
Wyatt, Milstead, and Janisse all place the date of the missing 20 cylinders as
Monday, March 6 . All agree that the two Gillinghams were on the same truck
that day and made joint deliveries on the route . William Gillingham agrees that
when he and his brother were told that they were short 20 cylinders they had been
on the truck together . He states that he was not working with his brother on or
about March 6 and did not work on a route with his brother in March.3 He stated
that the question of the 20 cylinders came up in January 1961.
Donald Gillingham also testified that the 20-cylinder incident occurred in January,
on a Monday when he and his brother worked together . When pressed as to why
he remembered that particular time, he said that when he came home from work
his wife told him that "Bill" (William Gillingham) was going "to catch it." She
said that Bill's wife was washing his pants that day and found the Company's $50
Christmas bonus check in the watch pocket . Bill had previously told his wife that
the bonus was only $25 . Donald testified that he then said to his ( Donald's) wife,
connoting brotherly sympathy , "Boy, that makes everything perfect ." because
Wyatt "jumped on him [Bill ] at work because of some missing cylinders and now
his [Bill's] wife is going to jump him when he gets home on account of the bonus
check." I regard this homely vignette of marital domesticity as having a ring of
authenticity under the circumstances and I believe it would be a factor in why a
witness remembered a particular date. It also is my opinion that it is unlikely that
an employee such as William, earning a relatively modest wage, would have been
,carrying around an uncashed $50 Christmas bonus check until March . In addition
to the general human need for money among most people who work at an hourly
rate, as well as others, it would be something of an accomplishment for William,
whose wife apparently had ready access to his pants pockets, to conceal the check
from December to March . Further, even if his powers of concealment were more
ingenious than the evidence discloses , he was obliged to produce at least $25 over
and above his wages without cashing the bonus check. All in all I doubt that the
check would have survived until March . I think it much more likely that the dis-
covery, the wifely repercussions , and the trouble about the 20 cylinders occurred
in January as Donald Gillingham 's testimony indicated . I so find.
There is a great leal of evidence in the record regarding the 20 missing cylinders
(i.e., the contents of 20 cylinders were unaccounted for by invoices turned in by the
two driver-salesmen). A shortage of 10 to 20 cylinders was obviously a shortage
of almost wholesale proportions 4 Wyatt testified that unknown to the Gillinghams
Elie counted the cylinders before the truck left in the morning and counted the empty
cylinders that evening . The Gillinghams did not count the cylinders before they
left and there apparently was no requirement that they do so. When they returned
they turned in invoices for the empty cylinders . Wyatt counted the empty cylinders
and the invoices . He had Janisse count the empty cylinders. They both say there
were 20 short . Wyatt then brought the Gillinghams down to the dock to count
the empty cylinders on the dock . There were 20 cylinders not covered by invoices.
The Gillinghams offered some explanation for about 10 cylinders , such as customary
gifts to trailer park owners and leaky cylinders of customers. They could not ex-
plain at least 10 empty cylinders . Wyatt testified as to why he believed Donald
was responsible . The testimony of Donald and William indicated that from their
standpoint the shortage was explainable only by some mistake in the original count
as to the number of cylinders that had gone out in the morning. Their testimony
3 No company records were introduced to controvert this flat statement
4 For instance , on another point of testimony Wyatt stated that a driver should be
able to deliver at least 20 cylinders in a day This would indicate that 20 cylinders would
approximate 1 day's work
INTERURBAN GAS CORPORATION 611
also indicated that if they were at fault it was impossible to fix responsibility on
one rather than the other. William said they both maintained the sales records
that were turned in.
The entire matter of two empty cylinders on March 10 depends on the testimony
of Wyatt and Janisse, two witnesses whose reliability has not impressed me. I have
rejected their testimony that the 20-cylinder incident occurred on March 6 rather
than in January. This finding casts considerable doubt on the March 10 episode
which was admittedly never mentioned to Gillingham. It is also clear, from the
testimony of Wyatt, Milstead, and Mrs. Gillingham, that neither Wyatt nor Milstead
mentioned anything about the 20-cylinder incident or the 2-cylinder incident to Mrs.
Gillingham when she asked why her husband was discharged. Respondent, on the
other hand, has adduced testimony regarding the cylinders as the prime reason for
the discharge since the derelictions were assertedly regarded as intolerable. On the
other hand, Wyatt and Milstead testified that they told Mrs. Gillingham that the
discharge was due to a "lot of little things." There admittedly, as above noted, was
no mention made of the allegedly missing cylinders. Wyatt and Milstead sought to
imply that they were trying to spare Mrs. Gillingham from knowing of her husband's
relationship with a Mrs. Hansen. The evidence on this score was also unconvincing
since Mrs. Gillingham was well aware that her husband had helped Mrs. Hansen
to move from her (Mrs. Hansen's) husband's trailer, Mrs. Hansen having first
spoken to Mrs. Gillingham beforehand about the matter. In any event, there ap-
pears to be no reason why Mrs. Gillingham should not have been told, if it was
the principal reason for the discharge, that on two occasions there had been serious
discrepancies in her husband's invoices or something of that nature.
From the standpoint of convincing evidence, in addition to what has already been
said, the cylinder incidents leave much to be desired. If, on March 10 or on any
date, Gillingham sold the contents of two cylinders and pocketed the receipts, it
would seem that a dishonest employee would also have disposed of the two cylinders
physically. Carting them back to the plant and trying to conceal them on his truck
with the full cylinders accomplished little, even if temporarily successful, since the
next day, when he returned, he would still have two unaccounted for empty cylinders.
Somewhat the same observation is applicable to the 20-cylinder incident. The
rather huge embezzlement of the receipts from 20 cylinders would seem to dictate
the physical disposal of the evidence, the 20 empty cylinders, before return to the
plant. At least in that event the culprit could not be confronted with 20 empty and
unexplained cylinders and the employer would have been obliged to rely solely
on its unverified count of 'how many cylinders had originally left the plant.
It is of course clear that the employer could have discharged an employee be-
cause of the cylinder incident. An employer is free to discharge for a good reason,
a bad reason, or no reason, so long as the reason was not, in fact, the employee's
union activity. The only issue before me is whether the true motivation for Gilling-
ham's discharge was inefficiency and dishonesty or his union activity. The evidence
in the instant case, previously set forth, persuades me that Donald Gillingham was
not discharged because of missing cylinders on any occasion or because of other
inefficiencies. The credible evidence shows that even assuming that Respondent
may have regarded Gillingham as less than a desirable employee the cause and
the precipitating cause of the hasty discharge in the middle of the workweek was
the March 14 union activity, the first overt act of organizing Respondent's em-
ployees.5 Gillingham was the ringleader and the "troublemaker" and on March 14
it became apparent that a serious move was being made to organize the employees.
The testimony of Mrs Begeman and Mrs. Gillingham establishes that Respondent
was aware of Gillingham's union activity prior to the discharge and discharged
him for that reason.' In a small establishment with less than 10 people, including
supervisors, either through an informer or otherwise, Respondent's knowledge of
what was going on is readily understood and reasonably inferred from the evidence
in this case. It is therefore my finding and conclusion that Donald Gillingham's
discharge was discriminatory in regard to his hire and tenure of employment, thereby
discouraging membership in the Union, and that Respondent thereby engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a) (1) and (3)
of the Act.
IV. THE REMEDY
In the light of the findings of fact and conclusions of law above made, the con-
ventional remedy for illegal discharge is appropriate. Although there is a single
unfair labor practice, it reveals a basic opposition to the rights guaranteed to employ-
ees by the Act and a broad order is recommended.
6Cf N.L.R.B. v. Electric City Dyeing Co ., 178 F. 2d 980 , 983 (C.A. 3).
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is ordered that the Respondent, Interurban Gas Cor-
poration, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or any other labor organization, by
discharging or refusing to reinstate any of its employees or by discriminating in any
other manner in regard to their employment.
^(b) In any other manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will effectuate the policies of the
Act:
(a) Offer to Donald Gillingham immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay he may have suffered by
payment to him of a sum of money equal to that which he normally would have
earned from the date of his discriminatory discharge on March 14, 1961, to the date
of the offer of reinstatement, less his net earnings during said period, said backpay
to be computed on a quarterly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289.
(b) Upon request, make available to the Board or its agents, for examination and
copying, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the amount of backpay
due under the terms of this Recommended Order.
(c) Post at its shop and office in Trenton, Michigan, copies of the notice attached
hereto marked "Appendix." Copies of said notice, to be furnished by the Regional
Director for the Seventh Region, shall, after being duly signed by Respondent, be
posted by Respondent immediately upon receipt thereof and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Seventh Region, in writing, within 20
days from the receipt of this Intermediate Report, what steps Respondent has taken
to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in the Teamsters Union, or in any
other labor organization of our employees, or discriminate in regard to their hire
or tenure of employment or any other term or condition of their employment.
WE WILL offer to Donald Gillingham immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to any seniority
or other rights previously enjoyed, and will make him whole for any loss of pay
suffered as a result of the discrimination against him.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist the above-named Union, or any other labor organization, to bargain
collectively through representatives of their own choosing, to engage in con-
certed activities for the purposes of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities.
INTERURBAN GAS CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.