Louisiana Energy & Development Corp.

National Labor Relations Board - Board Decisions

Mar 30, 1987

283 N.L.R.B. 391 (N.L.R.B. 1987)

DELTA GAS
Delta Gas, Inc., a subsidiary of Louisiana Energy &
Development Corporation and Oil, Chemical &
Atomic Workers International Union and its
Local 4-447. Cases 15-CA-9809 and 15-RC-
7190
30 March 1987
DECISION, ORDER, AND
CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 9 September 1986 Administrative Law Judge
J. Pargen -Robertson issued the 'attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief' in sup-
port of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings , findings,2 and
conclusions and to adopt the recommended
Order. 3
ORDER
The National Labor Relations Board adopts the
recommended , Order of the administrative law
judge and orders that the Respondent, Delta Gas,
Inc., A Subsidiary of Louisiana Energy & Devel-
opment Corporation, Homeplace, Louisiana, its of-
ficers, agents, successors, and assigns , shall take the
action set forth in the Order, except that the at-
tached notice is substituted for'that of the adminis-
trative law judge.
' In her brief the General Counsel requests that the Board modify the
judge's recommended Order to include a visitatorial clause authorizing
the Board, for compliance purposes, to obtain discovery from the Re-
spondent under the Federal Rules _ of Civil Procedure under the supervi-
sion of the United States court of appeals enforcing the Order . We have
concluded that under the circumstances of this case such a clause is not
warranted.
2 The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant 'evidence convinces us that they are incorrect. Standard'Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record , and find no basis for reversing
the findings.
S The judge , inadvertently failed to include in his notice a provision
ordering the Respondent to remove from its files any reference to the un-
lawful denial of wage increases to August Mackey, J. C. Ragas, and
Mervin Riley and to its discharge of Riley and to notify them that this
has been done. We shall therefore issue a new notice to employees which
includes this provision.
Member Johansen does not adopt the judge's characterization' of the
Board's decisions in Dr. Phillip Megdal, D.D.S., Inc., 267 NLRB 82
(1983), and Garrett Flexible Products, 270 NLRB 1167 (1984).
391
CERTIFICATION OF
REPRESENTATIVE
IT Is CERTIFIED that a majority of the valid bal-
lots have been cast for Oil, Chemical & Atomic
Workers International Union and its Local 4-447,
and it is the exclusive collective -bargaining repre-
sentative of the employees in the following , appro-
priate unit:
All production and maintenance employees in-
cluding meter readers/servicemen, measure-
ment technicians , welders, construction and
repair crewmen and warehouse employees em-
ployed by the Employer at its Homeplace and
Jonesboro, Louisiana facilities; excluding all
other employees , office clerical employees,
guards and supervisors as defined in the Act.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER'OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these
rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten you that you have been
denied a pay increase because of your union and
protected activities.
WE WILL NOT tell you that you will not receive
a wage increase because you and the Labor Board
have sued the Company.
WE WILL NOT deny you pay' increases because
you engage in union activities, or give testimony,
or engage in other concerted activities protected
under the National Labor Relations Act.
WE WILL NOT discharge you because you
engage in union activities, give testimony, or
engage in other concerted activities protected
under the National Labor Relations Act.
WE WILL NOT in any like ' or related manner
interfere with, restrain, or coerce you in the exer-
283 NLRB No. 62
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer immediate and full reinstatement
to Mervin Riley to his former position or, if that
position no longer exists, to a substantially equiva-
lent position without prejudice to his seniority or
other rights and privileges.
WE WILL make August Mackey, J. C. Ragas,
and Mervin Riley whole for any loss or earnings
they may have suffered by reason of our discrimi-
nation against them with interest.
WE WILL notify August Mackey, J. C. Ragas,
and Mervin Riley that we have removed from our
files any references to their failure to receive wage
increases and to Riley's discharge.
WE WILL notify them in writing that this has
been done and that evidence of our unlawful ac-
tions will not be used as a basis for future person-
nel action against any of these employees.
DELTA GAS, INC., A SUBSIDIARY OF
LOUISIANA ENERGY & DEVELOP-
MENT CORPORATION
Clement J. Kennington, Esq., for the General Counsel.
James E. Bergerson, of Marrero, Louisiana, for the
Union.
Frederick S. Kullman, Esq., Sidney F. Lewis Esq., and
Logan L. Loomis, Esq., of New Orleans, Louisiana, for
the Employer.
DECISION
STATEMENT OF THE CASE
J.. PAROEN ROBERTSON, Administrative Law Judge.
This case was heard in New Orleans, Louisiana, on 17
and 18 March and 9, 10, and 11 April 1986. The charge
in Case 15-CA-9809 was filed by Oil, Chemical &
Atomic Workers International Union and its Local 4-447
on 22 October 1985 and amended on 27 and 29 Novem-
ber 1985. In its answer and through stipulation at the
hearing, Respondent admitted that at material times it
has been an employer, incorporated in Louisiana, with a
facility located at Homeplace, Louisiana, where it is en-
gaged in the business of transporting and distributing nat-
ural gas; and, during a representative 12-month period, it
derived gross revenues in excess of $250,000 and pur-
chased natural gas through its interstate system, from
outside the State of Louisiana, valued in excess of
$50,000; and that it is an employer within the meaning of
Section 2(2), engaged in commerce within the meaning
of Section 2(6) and (7) of the National Labor Relations
Act (Act). Respondent also admitted that the Charging
Party (Union) is a labor organization within the meaning
of Section 2(5) of the Act.
In its answer Respondent alleged that it has been
denied due process by the General Counsel serving Re-
spondent ,with amended charges on and 3 days after the
day Respondent received the complaint. No evidence
was offered at the hearing to further support Respond-
ent's allegation that it was denied due process. I find, on
the basis of the information before me, that Respondent
was not denied due process.
Respondent also admitted the complaint allegation that
Ed Daigle, vice president of engineering and operations,
and Lawrence Williams, distribution supervisor, are su-
pervisors of Respondent within the meaning of Section
2(11) of the Act. Respondent denied that Daigle and
Williams are its agents. On the basis of the entire record
and the provisions of Section 2(13) of the Act, I find that
both Daigle and Williams were agents of Respondent at
all material times. Daigle, who has his office in New Or-
leans, is one of Respondent's supervisors with overall au-
thority over its Homeplace operations. Williams is the
on-board supervisor at Homeplace with supervisory au-
thority over a majority of the Homeplace work force.
Both Daigle and Williams supervise other lower-level su-
pervisors.
The complaint, as amended at the hearing, alleged and
Respondent denied that Respondent violated Section
8(a)(1) by threatening employees that they had not re-
ceived a wage increase because of their union and pro-
tected concerted activities; by threatening an employee
that it had terminated another employee because ; of his
union and/or protected concerted activities; and by tell-
ing its employees that they would not receive a wage in-
crease because of the pending unfair labor practice
charges in Case 15-CA-9809; and that Respondent vio-
lated Section 8(a)(1), (3), and (4) by refusing to grant
wage increases to employees August Mackey, J. C.
Ragas, and Mervin Riley since 1 October 1985; and by
discharging Mervin Riley on 17 October 1985 because of
the employees' union activities and/or protected concert-
ed activities and/or because of the employees' testimony
in a prior unfair labor practice hearing.
Additionally in accord with proceedings in Case 15-
RC-7190, at issue are six challenged ballots and matters
regarding the Employer's (Respondent) objections to
conduct affecting the results of an NLRB election con-
ducted on 19 and 20 September 1985. The bargaining
unit set forth in the Decision and Direction of Election is
as follows:
All production and maintenance employees includ-
ing meter readers/servicemen, measurement techni-
cians, welders, construction and repair crewmen
and warehouse and employees employed by the
Employer at its Homeplace and Jonesboro, Louisi-
ana facilities; excluding all other employees, office
clerical employees, guards and supervisors as de-
fined in the Act.
The tally of ballots shows 13 votes were cast for the
Union (Charging Party), 9 votes were cast against the
Union, and there were 6 challenged ballots. The chal-
lenged ballots are sufficient in number to affect the result
of the election . Those challenges were to the ballots of
Gerald Ragas , August Mackey, J. C. Ragas , Timothy
Williams, Sam Cooper , and Steve Lehew.
The objections to be considered herein relate to the
Respondent 's Objections 2, 4, and 5 "insofar as they
relate to the facts and surrounding circumstances of the
DELTA GAS 393
alleged threats directed against employee Douglas Dinet
on or about 2 August 1985." (See G.C. Exhs. 1(X) and
1(z)).'
Case 15-RC-7190
The Challenged Ballots
1. Respondent, the Employer, challenged the ballots of
Gerald Ragas, August Mackey, and J. C. Ragas alleging
that each of those three is a supervisor.
Gerald Ragas: Gerald Ragas testified that since March
1985 he has been over the construction crew which in-
cluded employees Shaffner Williams, Douglas Dinet,
Patrick Dinet, Errol Turner, Dwight Bartholomew, and
Mervin Riley. When Ragas assumed his position over the
construction crew he was told by Superintendent Law-
rence Williams2 that he had authority to "suspend em-
ployees." Ragas receives daily orders from Lawrence
Williams and it is Ragas' responsibility to see that the
construction crew satisfactorily performs Williams'
orders. Ragas admitted that he once directed employee
Patrick Williams to either do a specific job or "the next
time go home." In an earlier unfair ' labor practice pro-
ceeding, Case 15-CA-9709, Gerald Ragas admitted that
Lawrence Williams told him that he was promoted to su-
pervisor (see G.C. Exh. 15).
The Union argues that Ragas never exercised his au-
thority to suspend employees and that Respondent's posi-
tion is not supported by documentation in its files. The
Union also argued that neither Gerald Ragas nor the
construction crew viewed Ragas as the boss. Concerning
the Union's first point, while Ragas has never suspended
anyone, he has threatened use of that authority as evi-
denced by his testimony regarding Patrick Willimas.
Concerning documentation, although some employers
maintain office files documenting all promotion, especial-
ly promotions to supervisory positions, the Act does not
require such documentation. A person may be a supervi-
sor even though there is no documentation supporting
his promotion. Finally, concerning how the crew views
Ragas, I note that one of General Counsel's witnesses,
Dwight Bartholomew, a member of the construction
crew, testified that both Lawrence Williams and Gerald
Ragas supervise his crew. Even though Bartholomew's
testimony was conclusionary, it does tend to undermine
i Over objection by'the General Counsel, Respondent also introduced
evidence which it alleged to be objectionable from employee Steve
Lebew regarding alleged comments by employee Errol Turner at a
"shrimp boil or barbecue" sometime in July 1985 I have reviewed the
entire record and I find that Lehew's testimony in that regard is outside
the scope of the Board's Order directing a hearing on Respondent's ob-
jections. The Board's Order specifically reversed the Regional Director's
Supplemental Decision and Order regarding "Employer's Objections 2, 4,
and 5 insofar as they relate to the facts and surrounding circumstances of
the alleged threats directed against employee Douglas Dmet on or about
2 August 1985."
The testimony at issue clearly involves employees, a date, and a place
other than those involved in the incident specified in the Board Order.
Therefore I shall not consider that testimony in my determination regard-
ing the objections.
2 In the complaint as noted above Lawrence Williams is designated su-
pervisor . However, at various places in the record and on occasion in
this decision, Williams is referred to as the superintendent.
the Union's contention that the crew did not consider
Ragas as their boss.
Lawrence Williams testified regarding Gerald Ragas'
promotion:
I told him I needed him, I want to give him a
promotion to be supervisor over construction and
maintenance , and what his duties was, you know,
what his duty was as a supervisor. I would hand
him-give him the work down, he pass it to the
crew. He see that the crew do the work. If the
crew didn't do the work, then he reported back to
me. And I also give him the authority to get out
there, if somebody won't do what he want them to
do, bring them to me or either suspend them for X
amount of days, as many days as he wanted to. I
give him that authority. And he accepted that.
Finally, I note that all counsel stipulated that Gerald
Ragas is a supervisor (see Tr. 323).
The evidence shows that Ragas directed work of the
construction crew, possessed the authority to suspend
employees, and threatened to suspend an employee. I
find that he qualifies under the definition of supervisor
stated in Section 2(11) of the Act. Big Rivers Electric
Corp., 266 NLRB 380 (1983); Spring Valley Farms, 272
NLRB 1323 (1984).
Therefore, I recommend that the challenge to the
ballot of Gerald Ragas be sustained.
August Mackey: August Mackey testified that he has
worked for Respondent for about 18 years. Mackey's
employee data sheet shows that he was hired on 4 De-
cember 1967 and that since 1 November 1980 Mackey
has held the position of "chief service man & plant oper-
ator."
Mackey testified that he installs and disconnects gas
meters, lights pilot lights, and "things like that." Accord-
ing to Mackey he and one other employee, serviceman
helper Patrick Dinet, make up his crew. Mackey testified
that when requested to help by another employee, in-
cluding Claudia Phillips, Mackey would help that em-
ployee.
According to Mackey, on two occasions, once by
Lawrence Williams and on another occasion by Ed
Daigle and Lawrence Williams, he was told that "if
somebody do something wrong I can give them a few
days off, but I couldn't fire them." Mackey recalled that
the first of those two occasions occurred after the repre-
sentation hearing and prior to the election in Case 15-
RC-7190. In a pretrial affidavit given the Regional
Office, Mackey testified:
Williams told me for the first time after the first
NLRB hearing in this matter that I am a supervisor,
and I can discipline employees, but I can't hire or
fire. That was the first I had heard of any such au-
thority. I did not agree with his statement. Since
then my duties and responsibilities have not
changed.
Mackey admitted that Vice President Ed Daigle told
him:
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
"We just want to advise you of your powers." So
he said, "August, you have the power to discipline.
You don't have the power to fire, you don't have
the power to hire." And I said, "I didn't know
nothing about these powers." He said, "You always
did have." And that was that.
they-did wrong he was supposed to check them out.
If the meter readers do something that need to be
talked about, he talked to me. If they do something
that offended him, he had, you know, offended him
concerning the job, he had a right to suspend them
also.
Mackey testified he has never actually disciplined an
employee. According to Mackey he does not assign
work to employees. Mackey said that he gets his assign-
ments on a work' order from the office each morning.
Claudia Phillips, a meter reader, testified that on occa-
sion "when we finished reading meters" she performs
other duties including helping August Mackey "do serv-
ice work." When asked if she had a supervisor she re-
ported to, Phillips answered "August."
Under cross-examination by Respondent's counsel,
Claudia Phillips testified:
Q. Has [Lawrence Williams] ever told you that
August does not have the authority to suspend you?
A. Yes.
Q. When did he tell you that?
-A. A very long time ago . When-I can't exactly
say. When I was first hired. But it was just-during
around that time he did tell me that.
Q. This would be around the end of 1981?
A. Oh, no.
Q. Well, I thought that's when you were hired, is
what I-
A. Yes, I was hired in "81 , but it was-I was
hired in November.
0. 1981?
A. Yes, I guess it was 81, and maybe, say maybe
'83; '84. August is, you know, he's horrible some-
times.
Q And you were worried about what he could
do to your job?
A. Well, he-they used to get a kick out of
making me cry, and they just would tease me and
stuff. I always used to go to Lawrence, but he told
me don't ever worry about August because he can't
fire me or give me no time off or nothing like that.
Lawrence Williams testified that August Mackey was
already supervisor over service and meter reading, when
Williams became superintendent about 5 years ago. Wil-
liams recalled explaining August Mackey's duties to
Mackey about 3 years ago:
A. Well, like I say, I was-I was being-you
know, I had been superintendent for about two
years. Okay, I was learning a lot of things that I
didn't know about, and I didn't have time-you
know, because he was already supervisor. I didn't
have a chance to talk to him because I was in a
learning process. Okay, after I caught on to what I
needed to know, then me and him sat down and
talked about it, and I told him what I would like
him as a supervisor, and what was his duties.
Q. And what did you tell him?
A. I told him he was in charge of the meter read-
ers and the service work. The meters readers, if
Williams testified that he, along with Ed Daigle, met
with Mackey during the representation proceeding be-
cause Mackey was "always telling [Williams] that he's
not a supervisor."
Ed Daigle recalled from his records that he discussed
Mackey's duties with Mackey on 24 October 1985, Ac-
cording to Daigle:
Q. And who attended this meeting?
A. It was Lawrence Williams, August. Mackey
and myself.
Q. And what was said at this meeting?
A. I started the meeting by explaining to August
that Lawrence had asked me to come down, that
there seemed to be some question about what his
job title and responsibilities were. I explained to him
at that time, "August, you are, as you, always have
been, you are the supervisor for customer service.
Your responsibilities are to direct the work of the
meter readers and the servicemen, that you have
the right to discipline those people, if they should
do anything that you feel like they ought to be sent
home for, you have the authority to send them
home right there on the spot." It was pretty short
and sweet, and that was the gist of it.
Q. What did he say, if anything?
A. He responded to me with a big smile and said,
"Okay, I just wanted to know how it was," and
that was the entire subject of the meeting.
Q. Were these responsibilities you've just de-
scribed, were these new responsibilities?
A. No, they were not.
Q. Were they the responsibilities that he had as
far as you were concerned ever since you had been
with Delta Gas? -
A. Since-since he was promoted to his position
and since before my time at Delta Gas.
Conclusions: The testimony of Phillips, Mackey, Law-
rence Williams, and Daigle, all indicate that August
Mackey has exercised authority over both the meter
reading crew and the service crew for a number of
years. I am convinced through examination of the entire
record, that Mackey's duties have not changed since his
last promotion on 1 November 1980. The record -shows
that he is responsible for the work of five employees in-
cluding service employees and meter readers. Moreover,
as admitted by Mackey, he has been instructed on two or
more occasions that he has the authority to discipline
employees including the authority to send an employee
home. Additionally, Mackey testified in a pretrial affida-
vit that he was told by Lawrence Williams that he is a
supervisor. As in the case of Gerald Ragas , the record
shows that Mackey is a supervisor as defined in Section
DELTA GAS 395
2(11) of the Act. I recommend that the challenge to
Mackey's ballot be sustained.
.J. C. Ragas: Ed Daigle testified that J. C. Ragas cur-
rently holds the nonsupervisory position of measurement
technician. According to Daigle and records in the files,
from 1 October 1984 until 10 October 1985 J. C. Ragas
was a senior measurement technician. Daigle testified
that during that period, J. C. Ragas had "the authority to
discipline or suspend on the spot as the other two super-
visors (Gerald Ragas and August Mackey)." Daigle testi-
fied that before 25 June 1985 J. C. Ragas directed the
work of employee A. J. Duplessis, and after Duplessis
moved out of the measurement section, various employ-
ees from the construction crew were assigned as J. C.
Ragas' helper. On 10 October 1985 Ragas was displaced
and demoted from senior measurement technician to
measurement technician. Currently, Jim Barron holds the
senior measurement technician position. However, Ed
Daigle admitted that although he was the one that ap-
pointed J. C. Ragas to the position of senior measure-
ment technician, he did not tell Ragas of his supervisory
authority and, to his knowledge, no other supervisor ex-
plained to Ragas that Ragas was a supervisor.
A. J. Duplessis testified regarding his former position
of meter technician assistant and his understanding of the
authority of J. C. Ragas:
Ragas tested meters pursuant to a schedule prepared
by his supervisor Bobby Cure. As to his alleged supervi-
sory authority J. C. Ragas testified:
Q. As a measurement technician, do you have
any authority to discipline employees?
A. No, I don't.
Q. Do you have any authority to reprimand em-
ployees?
A. No, I don't.
Q. To send them home?
A. No.
Q. Who has that authority?
A. Ed Daigle, I imagine or Robert Cure, I don't
think he could discipline anybody, which--well, he
did tell me, yeah, he could have disciplined me or
sent me home, Robert Cure.
Q. How about Mr. Baron, does he have any of
that authority now?
A. No, he never told me.
Q. Who gives you your work orders?
A. I get them from Jimmy Baron.
Q. And before Mr. Baron?
A. I used to get them from Robert Cure.
Ragas testified that only one employee worked under
his direction:
Q. So J. C. was there to help, train you?
A. Right, J. C. was more or -less training me in
this line of work.
Q. Did he have any authority to suspend you?
A. No.
Q. Who had that authority?
A. Bobby Cure or Mr . Ed Daigle.
Q. Did he have any authority to reprimand you?
A. No. Not to my knowledge, he didn't. Never
did.
Q. Who was responsible for giving you your job
assignments?
A. Bobby Cure would make-well, the schedule
would come from New Orleans office. We had a
schedule to go by. It would come from the New
Orleans office, and Bobby would make sure that it
was being run by this schedule, or he would assign
us jobs or change our positions, the jobs if we have
to. If he had to change us from the schedule, well
he'll change us, he'll tell us. He would tell J. C. and
J. C. would say we had to do this, so we'd get it
done.
J. C. Ragas testified that until 11 October 1985 he
worked under the supervision of Bobby Cure. Ragas de-
scribed his job as senior measurement technician:
A. I test gas flow meters, change charts, sample
gas, fight meters in-
Q. I'm sorry, I couldn't hear you.
A. Fight meters in, take specific gravities of gas,
inspect orifice plates.
Q. Is that orifice plates?
A. Orifice plates, yes.
Q. And do have anybody now working with you
as a helper?
A. No, I don't.
Q. When was the last time you've had a helper
working for you?
A. The last helper I had was A. J. Duplessis.
Q. And when was that?
A. Up until June, the last part of June when they
took him out of measurement and put him back in
the crew.
Q. Doing what?
A. I think he went back in the gang as a shovel-
man or whatever.
Q. Shovelman, are you talking about a common
laborer?
A. Yes, sir.
Q. Is there any-the type of work you do, is that
anywhere related to that at all?
A. No, sir, it's different.
Q. Do you work with a shovel?
A. No.
Q. Do you have any authority to give out work
assignments at all?
A. No.
On cross-examination Ragas testified:
Q. And at that time, the beginning of last year,
you had A. J. Duplessis also working in measure-
ment, correct?
A. Yes.
Q. And at that time were you not keeping A. J.'s
time sheets for him?
A. You mean keeping his time sheets?
396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Q. Yes,
A. Yes, sir.
Q. Keeping his time sheets, all right. And weren't
you training him on what ,work to do out at the
meters? -
A. I was more or less training him, yeah.
Q. More or less? Weren't you the one training
him?
A. Well, I was training him when he was work-
ing with me. He wasn't working all the time with
me.
Q. Because sometimes he would work on some
meters and you would work on others?
A. We'd go opposite ways.
Q. He did not know how, for example, to cali-
brate meters, did he?
A. No, he never got into it.
Q. You were supposed to be training him on
that?
A. No, he wasn't there long enough.
Q. If he had stayed there you were the one who
would train him on how to calibrate a meter?
A. Yes.
Q. And you were the one who trained him on
how to change charts?
A. No. '
Q. You didn't train him on anything, is that your
testimony here today?
A. I never trained him on changing charts, no.
Q. What did you train him on?
A. I taught him how to catch a sample, how to
run a gravity, how to get a dew point, how to
change an orifice plate.
Conclusions: Unlike Gerald Ragas and August Mackey,
J. C. Ragas was never told that he possessed any super-
visory authority. The record proved that J. C. Ragas
regularly engaged in routine duties as a measurement
technician. He did not exercise independent judgment
but followed the directions of his immediate supervisor
Bob Cure. Cure had overall supervision of some five em-
-ployees. After June 1985 J. C. Ragas worked without the
assistance of a regular helper. As to his helper, the
record showed that neither Ragas nor the helper under-
stood that Ragas had any supervisory authority. Ragas
never directed more than one employee, his helper, and
the helper looked to Ragas ' supervisor, Bob Cure, for all
supervisory directions. I found that the record shows
that J. C. Ragas was not a supervisor during material
times . I recommend that the challenge to his ballot be
overruled.
2. The Union challenged the ballot of Timothy Wil-
liams, Sam Cooper, and Steven Lehew.
Timothy Williams: Timothy Williams is a son of Home-
place superintendent Lawrence Williams. Lawrence Wil-
liams testified that he hired Timothy Williams after con-
-suiting with Ed Daigle. Lawrence Williams testified:
A. Okay. Tim is my son. Tim was going to col-
lege. Tim hadn't worked in 21 years, and Tim-it
was a opportunity for him to get a job, and I had
needed the money, because like I say, I had three
other children in college, and that was a way for to
help Tim out, and that's why I asked Mr. Daigle to
help me out and help him out, and so' that's why I
give him a job. And so far as Tim working for me,
Tim was a-it was working, relationship. It wasn't a
father and son deal. I treated him just like I treat
my other employees.
According to Lawrence Williams, Timothy Williams
was a full-time employee that received "no special
favors." However, according to Lawrence Williams both
he and Ed Daigle knew that Timothy- Williams planned
to quit his job and return to college in-January 1986.3 In
that -regard Lawrence Williams testified:
Q. And you hired your son,'Tim Williams so that
he could earn some money to go to college, didn't
you?
A. Yeah.
Q. At the time you hired your son you knew he
was going back to college.
A. Yeah, I knew he, was going back.-
Q. So Mr. Daigle was well aware of the fact
when you hired Tim that he was only going to be
there for the-summer?
A. Yeah.
Q. And that he was going back to work in Janu-
ary [sic]?
A. Yeah.
Q. That was understood between you and Mr.
Daigle and Timothy, wasn't it?
A. Yeah.
Q. And in fact Tim left and went back to school,
didn't he?
A. That's right.
Q. As scheduled?
A. That's right. I told you why I hired him.
Lawrence Williams testified that Timothy Williams
could not return to college until January 1986 and that
Timothy planned to resign at that time.
The record contains Timothy Williams application for
employment. That application shows a date of 6/18/85.
At the bottom of the first page of the application Timo-
thy Williams wrote: "I plan to continue my studies and
become a Psychologist."
In the upper right-hand corner of Timothy Williams'
application for employment the following notation ap-
pears: "hired temp. working 6 mos. only."
Respondent's "Employee Data Sheet" on Timothy
Williams is also in the record. That document shows that
Timothy Williams was hired on 8 August 1985 as a
"Temporary Construction Worker" at the rate of $5.50
per hour. According to the testimony of Lawrence Wil-
S Daigle denied that he was told Timothy William planned to return to
college in January. I credit the testimony of Lawrence Williams over
Daigle's denial. Williams' testimony is "fully supported by documents in
file. Additionally, I was impressed with Williams' demeanor. Lawrence
Williams has continued to be employed as Respondent's superintendent.
There is no reason why he should be less than truthful regarding the em-
ployment of Timothy Williams Lawrence Williams' testimony illustrated
a keen recollection of the events surrounding the hiring of Timothy Wil-
liams I am convinced that his recollection is good and that he testified
truthfully.
DELTA GAS 397
liams, Timothy Williams worked until 17 January 1986,
when he resigned to return to college,
Conclusions: It is obvious from Respondent's records
and the credited testimony that Timothy Williams never
planned to become a permanent employee. Moreover
Respondent was fully aware of Timothy Williams' plans
to return to school in January 1986.
Jurisprudence has established that temporary employ-
ees, like Timothy Williams, do not share sufficient com-
munity of interest with permanent unit employees to jus-
tify their inclusion in the bargaining unit. Comet Corp.,
261 NLRB 14141, 1438 (1982). Timothy Williams was
hired for a definite, limited period as shown on docu-
ments in his personnel file and he neither expressed a
desire nor had a basis to consider that he would be re-
tained or later recalled. Meier & Frank Co., 272 NLRB
464 (1984). I find that Timothy Williams was a tempo-
rary employee and I recommend that the challenge to
his ballot be sustained.
Sam Cooper: Sam Cooper was hired by Respondent on
10 August 1985 at a pay rate of $9 per hour.4 Respond-
ent's employee data sheet on Cooper contains a blank
space under the column "position."
Cooper testified , "I'm self-employed and I also am em-
ployed by Delta Gas." Concerning his job classification
with Respondent, Cooper testified:
Q. Sam, at the time you were hired what was the
job classification you were hired into?
A. I guess I'm not sure, I think it was Meter
Technician.
Q. Meter Technician?
A. I'm not-I don't, I'm not sure what it was.
Cooper operates a lease service checking oil and gas
wells on a "subcontract" basis for companies not associ-
ated with Respondent, including Apache Corporation
and Sowell Oil and Gas. Concerning the amount of time
Cooper works for Respondent each week, he testified:
"It's usually about 20 hours, when I'm not too busy to
help."
Cooper testified that when he is too busy with his
lease service, he is unable to work for Respondent. Ac-
cording to Cooper, his personal business takes "prefer-
ence" over his work for Respondent . Cooper worked on
a - normal schedule for Respondent , "unless something
came up that I had an emergency." Then he could not
report for work with the Respondent.
Cooper testified that his weekly schedule at Respond-
ent has varied and the hours per day have fluctuated.
Cooper recalled that he would sometimes receive a
phone call from Respondent, on the day before Respond-
ent planned to change its charts and if his other work
permitted he would report to Respondent to change
charts on that day. As an example, Cooper testified re-
garding his most recent work. On the week of his testi-
mony, March 17 through 21, Cooper was not scheduled
to work for Respondent. On each of the 2 weeks before,
Cooper had been scheduled to work for Respondent on
each Thursday, but because he got "tied up" with his
other business he did not work for Respondent on either
of those weeks. Therefore, at the time of the hearing,
Cooper had not worked for Respondent during any of
the 3 weeks including the week of the hearing.5
Conclusions: The record, shows that Sam Cooper is a
casual employee who works on a sporadic, irregular
basis, at his convenience and that his primary occupation
is his lease service. I find that the circumstances of his
employment are sufficient to sever any community of in-
terest he may have had with the Respondent's regular
unit employees. Mariposa Press, 273 NLRB 528, 530 fn.
12 (1984).
Steve Lehew: Steve Lehew was hired by Respondent
on 18 July 1985 and he started work on 22 July 1985 as a
pipeline technician at $9 per hour. Lehew reported to
Bob Cure and worked at Respondent's Homeplace facili
ty.
On 1 October 1985 Lehew transferred to Respondent's
New Orleans office where his current position is "Gas
Control." Concerning his employment out of Home-
place, from 22 July to 30 September 1985, Lehew testi-
fied that he did not work with any bargaining unit em-
ployees . Instead Lehew performed inspection of the
work of an independent contractor in the construction of
a 12-inch pipeline connecting Texas Gas Meter Station to
Respondent's existing station. Lehew described his job:
A. I was just inspecting to make sure that when
Montero was building the pipe line they,built it to
our specifications, that there was no faults in the
way they wrapped the pipe, protected the pipe, or
inspected it. There's a-I was there as a backup.
In a pretrial affidavit Lehew testified that he had no
work contact with any bargaining unit employees. At the
hearing Lehew changed his testimony to reflect that he
occasionally had contact with unit employees, maybe
once or twice a week when he carried supplies or other
needed items to one of the crews.
Lehew holds an AS. degree in petroleum engineering.
Conclusions: The Union argues that Lehew should be
excluded because he is a technician and has no communi-
ty of interest with other unit employees.
It is true that Lehew holds a 2-year degree in petrole-
um engineering . However his job duties during the
period before his transfer to New Orleans show that he
did not engage in technical activities to a greater extent
than several admitted unit employees.
Concerning community of interest, while Lehew had
little, or no job contacts with other unit employees, he
did share common benefits, central job location, and su-
pervision with other unit employees. Moreover, if
Lehew is excluded, the position he occupied will be ex-
cluded from union representation because it would con-
stitute a one-man unit.
4 Other starting employees have received wage 'rates which varied
from $3.25 per hour (in 1977) to $5.50 'per hour (in 1984). Employees 5 Although the above example involved dates well after the election,
Sam Cooper and Steve Lehew ,(infra) were each hired in 198,5' at pay there was no showing that Respondent had changed Cooper 's job since
rates of $9 per hour. the election
398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I am mindful that Lehew's current position places him
outside the scope of the unit. However, at the time of
the election he was working out of Homeplace. I find
that he should have been included in the unit at the time
of the election and therefore, I recommend that the chal-
lenge to Lehew's ballot should be overruled.
In view of the above findings I recommend that a re-
vised tally of ballots issue showing two challenge ballots,
a number of insufficient to affect the election results.
The Objections
The Board, on 14 January 1986, directed consideration
of the "employer's objections 2, 4, and 5 insofar as they
relate to the facts and surrounding circumstances of the
alleged threats directed against employee Douglas Dinet
on or about 2 August 1985."
Douglas Dinet testified about his conversation with
employee Mervin Riley on 2 August 1985:
Q. Can you tell us as best you can remember
what exchange if any did you and Mickey Riley
have on that' afternoon?
A. About back pay.
Q. About what?
A. About back pay.
Q. Can you tell us exactly what words was ex-
changed, -as best you can remember?
A. Let's see he asked me if-he asked me if I
wasn't no back pay [sic], I told him I didn't want to
have nothing to do- with back pay.
Q. And was this back pay in reference to what,
do you know?
A. No, I don't.
Q. Was it involving Union activity?
A. No.
Q. Was it a lawsuit?
A. I guess it was, I don't know.
Q. Did you sign a lawsuit against Delta Gas?
A. No, I didn't sign no lawsuit.
Q. Was that conversation you and Mickey had,
did Mickey threaten you about joining the Union?
A. No, he didn't threaten me about joining no
Union.
Q. Did Mickey threaten to fight with you that
evening?
A. No, he argued with me, but I told him I
wasn't even going that route,
Q. And the route was filing a lawsuit?
A. Nope.
Q. What was it about?
A. About back pay and going to see a lawyer
and getting some money about my back pay or
something like that, and I told him I wasn't going
that way, I didn't want to have nothing to do with
that.
Q. Okay. Who was the lawyer involved, do you
know?
A. Mr. Defley.
Q. Joe Defley?
A. Yes, sir.
Q. And you didn't want to get involved with
that?
A. That's right.
Q. And at any time on that afternoon did any-
body have to hold Mickey Riley back from attack-
ing you?
A. No, not as I know of.
Q. Did Mickey invite you outside to beat you up?
A. No, sir.
Q. Did Mickey in any way threaten and do you
any physical harm?
A. No. -
Q. Did at any time did Mickey talk to you about
joining the Union or participating in Union activi-
ties?
A. No.
Mervin Riley denied that he ever spoke to Douglas
Dinet about the Union. Riley testified about a 2 August
1985 conversation he had with Dinet:
A. Okay, it was around knocking off time, and a
guy by the name of Tim-Tim Young, who was
being introduced to us. He was a new guy they just
had hired to work in the measurement department.
And-let's see, we was talking, and Doug was talk-
ing, Doug was saying he needed some money for
his trailer. So I walked over to Doug, and I told
Doug, I said, "You see, if you come with us on the
lawsuit you'll have money for your trailer." And
Doug started telling me he didn't want to hear that
shit . And I told him-and then he kind of got me
angry, because I was trying to show him a point
where he ' was right-where I was right and he was
wrong. And earlier that day there was some allega-
tions going around talking about tests for this and
tests for that, reading this, and reading that. And so
I was telling Doug that the Company was bringing
all these guys in here to take his job. And so he
didn't like the idea I was telling him that, and so we
started talking, and we started arguing, and I told
him if he wanted to come in on the lawsuit he
would have this money. He said he didn't want to
hear that shit. And that's, why I'm in trouble now,
and I'm going to lose my job over this lawsuit shit.
Q. Who was going to lose their job over the law-
suit?
A. I was going to lose my job.
Q. He was telling you that you - were going to
lose your job?
A. Lose my job over that lawsuit shit. "That's
why you' all going to lose you all's job, over that
lawsuit shit." And I was trying to tell him that we
wasn't going to lose our job because what we was
doing was right, and what they owed us would
belong to us. We wasn't doing nothing illegal
against the Company.
And so we had a few words; and so I told him, I
said, "Go ahead and be a dummy." And he said his
old man, he's knows what they doing-and stuff like
that. So I said, "Well, I'm not going to help you, go
ahead and be a dummy all your-you know-life."
And so he didn't like the idea I was talking to him
DELTA GAS 399
about it, and so we started - arguing and raising our
voices, and that was it.
Q. Did this discussion have anything to do with
Union activities?
A. No.
Q. Was the' Union ever discussed in that discus-
Sion?
A. No.
Q. Was the word "Union" ever mentioned?
A. No.
Claudia Phillips also testified about the 2 August con-
versation between Dinet and Riley:
A. Okay, it was right about-it was right before
time for us-it right before it was time for us to go
home, and something-it started off, Mickey was
telling Douglas about going up to Joe Defley's
office to sign a papers-to sign papers to join us in
the suit to get back pay , and Douglas was saying
that he wasn 't going up there to sign the paper and
we just said, "Well, you already signed one with us,
so why don't you want to go and sign another one,
sign this one with the lawyer and get some money
back, because you have more to lose-you have
more money to get back than us because you've
been here longer than what we have?" And Doug-
las kept-you know , you couldn't make Douglas
understand, you know, that it was for his benefit.
And Mickey called him Stupid and stuff like that,
and Douglas you know , he said some stuff back and
that was it . Mickey left and Douglas punched his
clock and he left.
Finally,, Steve Lehew was called by Respondent.
Lehew presented a different version of the 2 August inci-
dent:
A. Bob Cure walked out with Tim Young, who
was hired as a metering technician , to assist J. C.
Ragas in his metering calibrations and checking on
meter stations. Bob Cure introduced Tim Young to
J. C. Ragas, and said, "L C:, this is Tim Young.
He's going to be working for Delta Gas as metering
assistant.' He'll be working with ' you." And they in-
troduced themselves to each other, Tim Young and
J. C. J. C. asked him if he had ever done any meter-
ing work beforehand , and Tim said, "No, I just
graduated from Vocational-or' Votech school, and
my first job." And at that point Mickey Riley ex-
ploded, I' should say , and get real upset and said,
"They've gone and hired another Votech student.
We're not going to ever get anywhere , we'll never
be anything." And he was cursing a lot and yelling,
and then he turned to Douglas and said , "And you,
you wanted to vote no for the Union . You're
stupid. You're too stupid to get a job anywhere
else. Why do you want to vote no?" And Douglas
just said, "Leave me alone and don't bother me."
And he said , "We're never „ going to get anywhere,
we'll never be anything . You're being stupid." And
then at that point he kind of-he turned like he was
going to-not , hit Douglas, but just wanted to get
closer to him, and the rest of the crew members
separated them. And Mickey continued to yell and
make a lot of comments about the white crew being
hired and the black crew, and that the votes were
trying to be stacked against them, but then he
turned to Douglas again and said , "Let's step out-
side. You're too stupid to do anything, let's step
outside. And you're stupid `cause you want to vote
no." And Douglas said "Leave me along [sic]."
Mickey lunged at him, and some of the men just
separated them, said "Don't fight in here, don't
fight in here." Mickey said, "Let"s go out front.
Let's go out front, let's get out of the warehouse,
let's go out front." And Douglas just stood behind
everybody and wouldn't approach Mickey and
wouldn't answer him or anything. Finally -after a
few minutes Mickey was mad and he -just, punched
out and left. Douglas waited around a few minutes,
and then he punched out and he left,.
Conclusions: Respondent argues that the testimony of
Steve Lehew should be credited over that of Riley,
Dinet, and Phillips.6
Respondent concedes in its brief that the record failed
to show that Riley was an authorized spokesman for the
Union. Nevertheless, Respondent argues that 'Steve
Lehew's testimony reveals conduct by Riley which justi-
fies sustaining its objections and setting aside the elec-
tion.
On 2 August 1985, both the so called wage and hour
or overtime suit and the union campaign were active
issues among some, if not all, Respondent' s Homeplace
employees. On 21 June 1985 some 12 employees includ-
ing Mervin Riley filed suit against Respondent claiming
that they were being deprived of earned overtime pay.
In a prior unfair labor practice hearing (Case 15-CA-
9709), Mervin Riley was identified as one of three em-
ployees that set up 'the meeting with the lawyer that re-
sulted in the filing of the overtime suit. According to Re-
spondent's vice president, Ed Daigle, ' only two Home-
place employees did not join as plaintiffs in that suit. One
of those two employees was Douglas Dinet.
Regarding the union campaign, the Union filed the 15-
RC-7190, petition on 11 July 1985. As of 2 August an
election date had not been set: In fact the representation
case hearing was not held until 5 August.
Respondent argues in its brief that the union campaign
was a hot topic on 2 August. However, in view of the
status of the overtime suit and Douglas Dinet's failure to
engage in that suit, it appears more likely that any hostil-
ity from Riley involved the suit rather than the Union.
In that regard I am mindful that Merviha Riley is an al-
6 Respondent also pointed to testimony by employee Joseph Rhodes as
supporting the testimony of Steve Lehew . Rhodes testified regarding a
conversation between himself and Douglas Dinet in which Dmnet told
him `they had threatened to whip his ass if he didn't go along with
them I find that Rhodes testimony contributes nothing to assist' m the
resolution of this credibility issue. The comments , Dinet allegedly made to
Rhodes could just as well have involved the wage and hour suit which
was the focus of the 2 August confrontation between Dinet and Riley
according to Riley, Dinet, and Phillips, as it could have been referring to
the union election.
400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
leged 8(a)(3) discriminatee in this case. It would be in
Riley's interest to show that he was deeply involved in
union activities. However, Riley testified that the only
employees that he talked to about the Union were A. J.
Duplessis, Errol Turner, and the several white employ-
ees hired by Respondent. Riley admitted that he told the
white employees that he felt Respondent had hired them
to "block the Union" because he 'felt there was not
enough work otherwise to justify their employment.
Steve Lehew is white. Riley said nothing about race in
his comments to the "white" -employees. The record
does not show when Riley talked to the white employees
nor does it show whether those employees were eligible
to vote.
According to Riley he did not speak up in any of the
antiunion meetings held by Respondent. However, Riley
did speak up about his pay. Riley admitted that he told
Vice President Daigle that he should have received a
higher pay increase than the $36-a-month increase he did
receive in October 1984.
I fmd that I am unable to discredit the testimony of
Dinet, Riley, and Phillips regarding the subject of the
Dinet-Riley confrontation on 2 August. I was especially
impressed with Claudia Phillips' demeanor and her testi-
mony regarding that incident.
Additionally, I note that Phillips also testified in sup-
port of Riley regarding his union activities. Phillips testi-
fied that she did not hear Riley talk about the Union.
I am convinced that Steve Lehew was mistaken in his
understanding of why Riley was upset with Douglas
Dinet on 2 August. Lehew started work for Respondent
on 22 July, a month after the "overtime" suit was filed.
Lehew was not one of the employees involved in that
suit and there is, no showing that he was aware of the
suit . As shown above Lehew had little or no job contact
with other employees. Additionally, I note that of all the
witnesses regarding Riley and Dinet, no one recalled any
references to race other than Lehew. I do not believe
Lehew's testimony.
In view of my findings, the credited evidence fails to
support Respondent's contention in its objections. Specif-
ically, the record fails to show that anything was said to
employee Douglas Dinet on 2, August 1985 regarding the
Union, the union election or Dinet's vote. Therefore, I
recommend that Respondent's objections be overruled
and the election results certified.
Case 15-CA-99801
The 8(a)(1) allegations
(1) On or about 1 November 1985 Respondent through
Lawrence Williams threatened employees that they were
denied pay raises because of the Union or protected ac-
tivities.
August Mackey testified that on 1 November 1985, in
the warehouse, he and J. C. Ragas asked Lawrence Wil-
liams why they had not received a raise. Raises had been
granted to some other employees in October 1985. Law-
rence Williams expressed surprise saying he had been
told some of the hourly men received a raise . Williams
then asked Mackey and Ragas, "You're sure you didn't
get one?" Then Williams said: "Well its a bottom line,
because you participated in union activities, and you
sued the company for back wages."
J. C. Ragas recalled Lawrence Williams' response to
he and Mackey's inquiries about why they did not re-
ceive raises in October 1985: "Well . . . you know, you
all suing those people. . . . You figure people are going
to give you all a raise . . . and you all having union ac-
tivities."
On cross Ragas recalled that Lawrence Williams in-
cluded a comment about the bottom line, saying "be-
cause you all got those people in a law suit, the bottom
line is your union activity."
Lawrence Williams recalled that only August Mackey
asked why he had not received a raise. Williams said that
he replied to Mackey that he did not know why Mackey
had not received a raise. Williams admitted saying, "You
know as well as I know why you didn't get one, but I
don't know why."
According to Williams, Mackey asked if it was be-
cause of the Union and Williams replied, "I don't know,
your guess is as good as mine."
Conclusion: Both August Mackey and J. C. Ragas im-
pressed me as truthful in their testimony about a 1 No-
vember conversation with Lawrence Williams. On the
other hand Lawrence Williams appeared equivocal in his
version of that conversation especially in regard to
whether J. C. Ragas was present. The testimony of
Mackey and Ragas were similar although not so similar
as to indicate collusion in preparing their testimony. I am
convinced that Williams told them that they had not re-
ceived an October' raise because they had sued Respond-
ent and because of the union activities. That comment
has the tendency to coerce and restrain employees in
regard to protected rights and is violative of, Section
8(a)(1).
(2) On 17 October 1985, Respondent, through Law-
rence Williams, threatened that it had discharged an em-
ployee because of his union and/or protected activities.
J. C. Ragas testified to a conversation with Superin-
tendent Lawrence Williams after Mervin Riley was dis-
charged on 17 October 1985. Ragas placed the conversa-
tion in Respondent's warehouse around 11 a.m. Ragas
complained to Williams that it was not right for Re-
spondent to discharge Riley because Riley had an auto
accident while he was off work. Williams told Ragas:
"Well, John, you know when you're suing those people,
and the bottom line is they fired the man for his union
activities."
Lawrence Williams denied talking to J. C. Ragas late
on the morning of 17 October and he denied telling
Ragas that Respondent had fired Riley because of the
Union.
Conclusion: I found above that Lawrence Williams
threatened J. C. Ragas and August Mackey that they had
been denied a wage increase because of their involve-
ment in suing Respondent and because of their union ac-
tivities. In general I fmd J. C. Ragas- was a truthful wit-
ness. However, his testimony about the 17 October con-
versation with Lawrence' Williams is bothersome. I am
especially concerned with the similarity of Ragas' testi-
mony about his 1 November and 17 October conversa-
DELTA GAS
tions with Williams. Under cross-examination regarding
the 1 November 1985 conversation, Ragas recalled Wil-
liams saying: "The reason why you all didn't get a raise
.. , because you all got those people in a law suit, and
the bottom line is your union activity."
The above testimony is similar to that of August
Mackey regarding the same incident. That is to be ex-
pected if, as I believe, both Ragas and Mackey were
truthful on that occasion. However, it is difficult to be-
lieve that Williams' 1 November. comment would be
almost the same comment he made on 17 October 1985
in regard to the discharge of Mervin Riley. That com-
ment, as recalled by J. C. Ragas was: "Well, John, .. .
you know when you're suing those people, and the
bottom line is they fired the man for his union activities."
Although J. C. Ragas gave several affidavits to the
Region, including one on 5 November, he did not testify
about Lawrence Williams telling him the reasons for
Riley's discharge, until 11 March 1986. Ragas offered a
reasonable explanation of why the 17 October conversa-
tion was not included in his 5 November affidavit. How-
ever, due to the similarities between what he recalled
Lawrence Williams said on 1 November and what Law-
rence Williams said on 17 October, a strong possibility
exists that those conversations had become confused in
Ragas' mind when he testified in the 11 March 1986 affi-
davit. Under those circumstances, I shall not credit
Ragas' version of the 17 October conversation because it
was not supported by any other evidence. Lawrence
Williams denied that the conversation took place.
(3) On or about 4 March 1986 Respondent, through
Ed Daigle, told employees they would not receive a
wage increase because of pending unfair labor practice
charges.
August Mackey recalled a conversation involving Ed
Daigle, J. C. Ragas, Lawrence Williams, and himself in
Lawrence Williams' office on 4 March 1986. Daigle
came to Homeplace because Mackey and, Ragas had
asked Lawrence Williams for a pay raise. Williams said
he could not grant a raise but he agreed to ask Daigle to
come and discuss their requests. According -to Mackey,
Daigle told him and Ragas that Respondent cannot give
them a raise because "We, had sued the company for ...
or rather him for an unfair labor practice." Daigle went
on, "You people have filed it. The Labor Board, they
filed it."
J. C. Ragas recalled the same conversation. Ragas also
recalled that Daigle told him and Mackey that they
could not receive a raise because they "filed a unfair
labor- practice charge against us." Daigle continued
saying, "It would be up to the judge to decide whether
they received a raise."
According to Lawrence Williams' version of the 4
March 1986 conversation, Daigle told Ragas and
Mackey that "he cannot talk about no raise at the time
because everything was in court."
Williams admitted that he did not recall all that was
said between Daigle, Mackey, and J. C. Ragas.
Daigle recalled the 4 March meeting. He testified that
Mackey told him they would "like to talk to [him] about
some green." Daigle replied: "August, J can't talk to you
about that. We've already had our raises back in Octo-
401
her. This whole thing is a matter of Unfair Labor Prac-
tice Act now, and there is nothing I can discuss with
you.,,
Daigle, Ragas, and Mackey agreed that they discussed
the possibility of a crawfish boil after concluding their
discussion regarding the pay raise request.
Conclusion: I noticed that three witnesses, Mackey,
Ragas, and Lawrence Williams all, recalled that Daigle
said something about a suit, court, or a judge, in their
recollection of the 4 March conversation. According to
Daigle he said nothing about court, instead Daigle re-
called saying the raise question was a matter of "Unfair
Labor Practice Act."
As indicated above, I found August Mackey to be a
credible witness. In this instance his testimony finds some
support in the testimony of Superintendent Lawrence
Williams as well as in the testimony of J. C. Ragas.
Therefore, I credit the, testimony of August Mackey.
Mackey's testimony reveals that he and Ragas could not
be considered for a raise because they and the Labor
Board sued Respondent.
It is perhaps understandable for an employer to explain
that it cannot grant increased benefits while the question
is tied up in court. However, that is not what Daigle told
Mackey and Ragas. Daigle said they could not get a
raise because they (and the Labor Board) had sued Re-
spondent. The so-called overtime or wage and hour suit
and the instant unfair labor practice complaint, both con-
stitute protected activities. As shown above almost all
the Homeplace employees joined in suing for overtime
wages and, of course, charges and complaints under the
National Labor Relations Act are protected under the
Act. Therefore, Daigle's comments constitute an 8(a)(1)
violation regardless of which suit he was referencing in
his comments to Ragas and Mackey. (See Neo-Life Co. of
America, 273 NLRB 72 (1984).)
The 8(a)(1), (3), and (4) allegations
(1) Respondent has, since 1 October 1985, refused to
grant pay increases to employees Mackey, J. C. Ragas,
and Mervin Riley.
In October 1985, employees of Respondent were con-
sidered for a merit increase in pay. Out of some 24 unit
employees and two or more hourly paid supervisors at
Homeplace, only four unit employees and one hourly
paid supervisor received merit increases in October 1985.
The General Counsel contends that of those 20 employ-
ees' that were denied wage increases, 3 were denied in-
creases because of their union activities or because of
their involvement in the overtime suit or because they
gave testimony in prior unfair labor practice hearings.
The General Counsel correctly points out that
Mackey, J. C. Ragas, and Riley were prominent in dis-
playing protective activities. All three wore union but-
tons, J. C. Ragas permitted the Union to hold employee
meetings at his house, Ragas and Mackey spoke in favor
of the Union at company meetings, and all three employ-
ees testified against Respondent in a prior unfair labor
° Several employees, out of the 20 that did not receive raises, were
mehgible due to their having worked less than 1 year
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
practice hearing. Although Riley testified that he did not
speak in favor of the Union at company meetings, Ed
Daigle testified that he recalled Riley did speak in favor
of the Union . Mackey, J. C. Ragas, and Riley were all
plaintiffs in the overtime suit against Respondent. During
the unfair labor practice hearing in Case 15-CA-9707,
Riley was identified as one of the three employees that
set up the initial meeting with an attorney that led to the
overtime suit.
The evidence shows that on October 1985, for the first
time, Gayland Simmons , president and chairman of the
board 'of Respondent's parent company, granted wage in-
creases on the basis of ratings on performance reviews.
The performance reviews for Respondent 's employees
were prepared by Vice President Ed Daigle . Daigle tes-
tified that when he prepared the performance reviews,
he did not know what scores, would be required for an
employee to receive a wage increase . Simmons made
that determination on his own . Simmons decided that all
employees with more than 1-year seniority , that rated an
overall score from three to five, would receive an in-
crease with those rated from four to five receiving a
larger increase than those 'rated three to four. Those
rated below three received no -pay increases . The same
system was used throughout all the affiliated companies
including Respondent.
Daigle rated J. C. Ragas 2 . 52, August Mackey 2.31,
and Mervin Riley 2 .02. Of the eligible people , only em-
ployees Claudia Phillips, Dwight Bartholomew, Joseph
Rhodes, and Douglas Dinet and hourly Supervisor
Gerald Ragas were rated 3 or over by Daigle. Those
five received pay increases.
The General Counsel does not argue that Respondent
altered its pay review procedure in order to illegally dis-
criminate against its employees. The record shows that
Gayland Simmons applied his three -and-over analysis to
performance reviews from all companies of LEDCO, the
parent company. Moreover, there was no showing that
any performance reviews were changed by Simmons.
Therefore, it appears that my analysis should be limited
to a consideration of whether J. C. Ragas , Mackey, and
Riley were discriminatorily denied a rating of three or
more because of their protective activities.
Initially, in view of my findings above that August
Mackey is a supervisor , I must find that all his union and
concerted activities are unprotected in view of Board
law (see Parker-Robb Chevrolet, 262 NLRB 402 (1982)).
Therefore, even though I shall consider Mackey in my
analysis to the extent his treatment may involve J. C.
Ragas and Riley, I recommend that the 8(a)(1) and (3)
allegations going to Mackey be dismissed . I shall consid-
er whether Mackey was deprived of a wage increase be-
cause of his testimony in prior NLRB proceedings (see
Parker-Robb Chevrolet, supra). Mackey's prior testimony
in unfair labor practice Case 15-CA-9709 was received
in evidence . The record shows that Mackey 's material
testimony was limited to one company meeting ' in which,
according to the testimony, Ed Daigle said, "It looked
like A. J. was trying to bring the union in there, and he
said if it come to that he won 't have no union there, he'd
run everybody off and hire a new crew.
In view of the above evidence and especially in view
of the fact that - Mackey's testimony involved a disputed
allegation - regarding Ed Daigle, the supervisor that pre-
pared Mackey 's performance reviews , I shall consider
the evidence concerning the 8 (a)(1) and (4) allegations
regarding August Mackey.
Conclusions: The General Counsel argued that there
are a number of items which support a prima facie case.
I have considered several items which I consider critical
including, (1) as shown above , on 1 November Superin-
tendent Lawrence Williams admitted to Mackey and J.
C. Ragas that they were denied raises because of their
union activity and the overtime suit; (2) J. C. Ragas, and
Riley ' were shown to have been heavily involved in
union and other protected activities; (3) Daigle did not
consult with on the site supervision before rating the Ho-
meplace employees; (4) -Respondent's employees in
Jonesboro , Louisiana, where there was no union activity,
were both" granted raises ; and ' (5) Daigle 's alleged basis
for downgrading Mackey ,- Ragas and Riley was not sup-
ported by credible evidence.
Lawrence Williams' 1 November comments
As shown above I credited the testimony by August
Mackey and J. C. Ragas regarding comments by Law-
rence Williams on 1 November. Of the two, August
Mackey's testimony was more complete . According to
Mackey, Williams expressed surprise that Ragas and
Mackey had not received raises. Williams then said they
had been denied raises because they sued Respondent
and because of their union activities.
Obviously, if Williams' comments are imputed to Re-
spondent, the above evidence constitutes strong support
for the General Counsel . However, in recent cases, the
Board has demonstrated a reluctance to routinely impute
knowledge of a supervisor to a respondent (see Dr. Phil-
lip Megdal, D.D.S., Inc., 267 NLRB 82 (1983); Garrett
Flexible Products, 270 NLRB 1147, 1148 (1984)). Here,
several factors indicate- Wuriams was not speaking from
actual knowledge of the basis for the wage increase deni-
als. One such factor is Williams ' expression of surprise
that Mackey and Ragas .had not ' received raises. If Wil-
liams had known before that conversation that Mackey
and Ragas had been denied raises because of their pro-
tected activities, it is unlikely that he would have been
surprised at their comments . Second, Lawrence Williams
testified that he was not consulted about the ratings.
Third, Williams' comments and later suggestion that
Mackey and Ragas talk to Daigle about pay raises, fur-
ther supports the determination that Williams was never
privy to the reasons for denying employees wage in-
creases.
Therefore, I am convinced that Lawrence Williams
was only voicing his opinion in his l November conver-
sation with Mackey and Ragas . While his comments con-
stitute ' an 8(a)(1) violation , they should not be taken as
showing the true reason why Respondent denied wage
increases to Mackey and Ragas.
s Only two Jonesboro employees had' the necessary seniority to qualify
for consideration of a wage increase.
DELTA GAS
Mackey, Ragas, and Riley 's Protected Activity
As shown above, with the possible exception of em-
ployee A. J. Duplessis ,9 J. C. Ragas and Mervin Riley
were the most prominent of the employees involved in
union and protected activities.
Moreover, two of the employees that received pay in-
creases , Dinet and Rhodes, were the only two eligible
hourly paid employees that did not join as plaintiffs in
the overtime suit against Respondent.
Daigle did not consult with Lawrence Williams
According to Respondent's letter of position to the
Region, Ed Daigle evaluated the Homeplace employees
with the assistance of Lawrence Williams.10 However,
Lawrence Williams credibly testified that he was not
consulted and did not participate in the October 1985
employee evaluations. Williams testified that in 1984 the
usual practice involved his consulting with Daigle re-
garding employee work performance:
The evaluation-on-the-job performance, how they
was working with other people and different things
like-like normal evaluation, that's what I usually tell
[Daigle].
Lawrence Williams' failure to participate in the eval-
uations is significant because Ed Daigle was not sta-
tioned in Homeplace. Daigle, whose office is in New Or-
leans, is over employees in Houston and Bryan, Texas,
Jonesboro and New Orleans, Louisiana, and various lo-
cations throughout the States of Texas and Louisiana, in
addition to Homeplace. Daigle did not have an opportu-
nity to routinely observe all the Homeplace employees.
Daigle testified that he would visit Homeplace
per month probably two times a month for a period
of five or six hours. There could be months that I
won't make it at all, there could be other months
when I'd be down there more often.
Daigle stated that he usually spent his time in the
office at Homeplace, but he testified that he did occa-
sionally visit the jobsites: "Not often, oh, maybe every
third trip out I'll go to a particular jobsite if something's
going on."
According to Daigle he never went to the jobsites
with the meter readers.
Therefore, it is apparent that Daigle only observed
some of the hourly Homeplace employees during their
work. According to his, testimony he would go to a job-
site every third trip. At the rate of two visits per month
that translates into Daigle seeing a few of the I-lomeplace
employees at work every 6 weeks. Some of the employ-
ees, e.g., the meter readers, were never observed work-
ing by Daigle.
The Jonesboro employees all received wages increases.
The bargaining unit, employees were stationed at Home-
9 Duplessis was hired on 16 !January 1985 and lacked the seniority nec-
essary to warrant consideration for an October 1985 pay increase.
10 J. C. Ragas worked under the supervision of Bob Cure rather than
Lawrence Williams. Cure did not testify
403
place and Jonesboro, Louisiana. According to record tes-
timony, Daigle rated all four employees at Jonesboro.
Two of those employees had worked less than 1 year
and were ineligible for a raise. Of the two eligible em-
ployees, both were rated three or above and received a
wage increase.
Daigle rated J. C. Ragas, Riley, and Mackey low even
though the low ratings were not supported by evidence.
In the areas where J. C. Ragas, Mackey, and Riley re-
ceived low ratings, there was a dearth of documentation
supporting specific actions or inactions by the employ-
ees. Ed Daigle admitted that Respondent has a general
practice of documenting poor performance.
Regarding J. C. Ragas, Daigle rated him 2 (one below
average) in five subcategories and 3 in six subcategories.
Ragas was not rated above average (i.e., 4) in any sub-
category,11 nor was Ragas rated excellent or poor (5 and
1) in any subcategory. Although Daigle complained that
J. C. Ragas was not seeing after meters as he should, was
not keeping schedules as he should, and was absent with-
out explanation, Daigle was unable to testify about a
single specific instance where Ragas engaged in any of
those shortcomings. Daigle admitted there were no
records showing the occurrence of any of those com-
plaints. Regarding Ragas '- below average rating under
safety consciousness, Daigle testified to two incidents,
one when Ragas "blew some material into his eyes," and
the other when Ragas slipped on a ladder. The General
Counsel argues that J. C. Ragas was innocent in both in-
stances. In the former, Ragas testified without contradic-
tion, that a faulty gasket ruptured blowing, trash into his
eye and in the latter , Ragas was carrying tools up a
ladder when he slipped.
Moreover, as to Daigle's contention that Ragas missed
appointments, J. C. Ragas testified, again without con-
flict, that some appointments were missed but those oc-
currences resulted from conflicting assignments from his
Supervisor Bob Cure. Cure did: not testify.
Daigle claimed that J. C. Ragas-failed to turn in cali-
bration schedules on five occasions after 'Daigle specifi-
cally requested the schedules. J. C. Ragas testified that
after he made a schedule, that schedule was changed by
Daigle and Bob Cure. Ragas then asked if Bob Cure
could make the schedules because Ragas did not have
the authority to follow the schedule if he had conflicting
assignments . According to Ragas, Daigle did not ask
about the schedules after that incident. Again, Daigle ad-
mitted that he had no records which supported his alle-
gation and he did not rebut J. C. Ragas' testimony.
Regarding acceptance of supervision, Daigle testified
that J. C. Ragas oftentimes circumvented Supervisor Bob
Cure and talked directly with Daigle. When asked if that
was not permitted, Daigle responded that on some occa-
sions Ragas was permitted to deal directly with Daigle.
11 As noted below, Daigle also rated J . C. Ragas and other employees
on another form, the employee progress report, on the same dates (8 Oc-
tober 1985, ' in the case of Ragas) that he rated employees , on their per-
formance review. On that form , after consultation with J. C. Ragas,
Daigle rated Ragas above average in six subcategories, excellent '(equiva-
lent to 5 on the performance review ) in two subcategories, average in six
subcategories and below average (the equivalent'of 2 on the performance
review) in only 1 out of a total of 15 subcategories.
404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Daigle was unable to furnish records supporting this alle-
gation and Daigle was unable to recall specific incidents
when Ragas had circumvented the chain of command.
Ragas admitted talking with Daigle about once a week,
but he testified, those conversations followed instructions
from Daigle to contact him'anytime Ragas had problems.'
Concerning Mervin Riley, Daigle rated him 1 (two
below average) in four subcategories, 2 in six subcategor-
ies and ^ in two subcategories. Riley was not rated
above a 3 in any subcategory:12 Daigle was asked about
the low performance review ratings given Riley. Con-
cerning being deficient in his understanding of his job,
Daigle testified that Riley "just never showed to me any
individual initiative whatsoever." Daigle could not point
to any incidents when Riley demonstrated lack of initia-
tive other than on' 21 June 1985, Riley had "heated
words" with Daigle's assistant wherein Riley complained
that Riley "was a machine operator and that's what he
ought to be paid for." (See Tr. 166.) Daigle recalled gen-
erally that Riley wanted to be a machine operator but
did, not want to perform duties other than' operate a ma-
chine. Daigle stated that he downgraded Riley on safety
consciousness and skills of work because Riley would
swing the trenching machine boom very, very wildly.
Daigle did not warn Riley,but, according to Daigle, he
sent word through Supervisor Gerald Ragas that he did
not like the reckless way Riley was operating the ma-'
chine. As to the 'subcategory "effectiveness in working
with -fellow employees," Daigle testified that "[q]uite
often [Riley] would ,get quite angry with the other em-
ployees, lose his temper and almost fight." Daigle said he
could not recall a specific incident of Riley getting quite
angry.
Riley's immediate supervisor, Gerald Ragas, worked
with Riley on a daily basis . Ragas' testimony was quite
different from Daigle's. Gerald' Ragas testified that he
never had problems with Riley operating the backhoe'
trencher improperly; he never had to 'correct Riley from
swinging the "bucket" improperly; that Riley was a'
good worker; that Riley never refused to take orders;
that he never saw Riley trying to fight other employees,'
and that he never had occasion to repri mand Riley.
Mervin Riley testified that no one ever criticized his
work, that neither Lawrence Williams nor Gerald Ragas
told him he was -operating the backhoe trencher improp-,
erly; `that he` never refused any assignments and that he'
never tried to start a fight on the job.
Lawrence Williams testified that on one occasion,
"about two years ago," Gerald Ragas complained to him
that Riley "didn't want to listen to him." Subsequently,
Williams recalled an occasion before Elton Turner
died,13 when Riley complained that he was not receiv '
ing operator's pay-
I am convinced, from the testimony of Supervisors
Gerald Ragas and Lawrence Williams, that Ed Daigle
was not truthful in his testimony that Riley operated the
12 On Riley's progress report, Daigle rated him in the highest category
("a" which is the equivalent of (5)) in two subcategories; "b" (4) in three
subcategories; "c" (3) in eight subcategories; "d" (2) in two subcategor-
ies; and "e" (1) in no subcategories.
1'2 Ed Daigle testified that Elton Turner died in February or early
March 1985
backhoe trencher recklessly. Ragas' testimony was in
direct conflict with Daigle's testimony that Daigle sent
word through Ragas that, he did not like the way Riley
operated the machine. Additionally, I do not credit Dai-
gle's testimony that Riley would almost fight other em-
ployees. Daigle's testimony that Riley complained about
his pay is supported by the testimony of Lawrence, Wil-
liams. I credit Daigle and Williams in that regard.
In regard to the performance review of August
Mackey, Daigle rated 'him 2 in eight subcategories and 3
in three subcategories. Mackey received no ratings of 5,
4, or 1. However, as mentioned below, Mackey received
two "a" (the equivalent of 5) ratings, three "b" (4) rat-
ings; nine "c" (3) ratings; one "d" (2) rating and no "e"
(1) rating on his progress report. Daigle responded that
Mackey's ratings of 2 on his performance review resulted
from the facts that Mackey "just didn't -do very much
[work]," he showed -lack of initiative by declining pro-
motion to supervisor, he would not accept additional re-
sponsibilities, his assigned vehicle was not properly main-
tained, he did not display "very many" academic skills,
and he stirred up trouble by talking poorly about the
Company and calling it a "white man's company."
Daigle admitted'that none of Mackey's alleged deficien-
cies had been documented, and Daigle never talked to
Mackey about any of those alleged problems. Daigle did
not recall specific instances illustrating ' Mackey's defi-
ciencies except for an instance at a shrimp boil. On that
occasion, according to Daigle, Mackey , said he could
create overtime situations by having his "brothers to go
out and run over some meters." Mackey denied that he
made that statement to Daigle.
Superintendent Lawrence Williams ' testified that
Mackey is a "good" employee. Williams testified that he
complained about Mackey to Ed Daigle on only one oc-
casion. That occasion was when Mackey refused to
accept that he was a supervisor. In view of the entire
record and 'my findings herein regarding credibility, I
credit the testimony of Lawrence Williams.,I also credit
Mackey's denial that he ever said he would have his
brother run over meters.
In view of my findings above, I am convinced that the
General Counsel has proven ,a prima facie case. I make
that finding despite my determination that Lawrence
Williams did not know the reason behind Respondent's,
actions when he told Mackey and J. C. Ragas, they were
denied a wage increase because of their suit and union
activities. The other factors mentioned' above convince
me that Respondent considered J. C. Ragas' and Riley's
protected activities in the rating process. I am convinced
Respondent also considered the, prior NLRB testimony
of Mackey, Ragas, and Riley.
Second, I shall consider whether the record proves
that August Mackey, J. C. Ragas, and, Mervin Riley
would have been deprived of a wage increase in the ab-
sence of their protected-'activity or prior' testimony (see
Wright Line, 251 NLRB 1083 (1980)).
As to the question of whether Mackey, J. C. Ragas,
and Riley would have received a wage increase absent
their protected activities or prior testimony; the record is
confused.
DELTA GAS
One area of consideration should involve concern with
the employees' evaluations before they engaged in pro-
tected activities. However, on that point the record is
unclear. Daigle testified that he did not evaluate hourly
employees before October 1985. Concerning prior raises,
Daigle testified that the last raise , October 1984, was
combination of merit and cost of living and that Re-
spondent's records do not show whether a raise granted
at that time represented both merit and cost of living or
simply cost of-living. In view of that confusion, I find
that Respondent has failed to show that Mackey, J. C.
Ragas, and Mervin Riley performed` below average
before they engaged in protected activities. In fact, the
opposite appears to be true. Daigle admitted that J. C.
Ragas received merit raises "pretty consistently" when
merit raises were granted. Regarding Mervin Riley, his
immediate supervisor, Gerald Ragas, testified that Riley
was a good worker. Contrary to the assertions of Daigle,
Gerald Ragas testified that Riley did not operate machin-
ery improperly, Riley never refused to take orders or di-
rections, Riley argued but never tried to pick a fight and
Ragas never had occasion to give Riley a warning. Con-
cerning Mackey, Superintendent Lawrence Williams tes-
tified that he was a good worker.
Another factor to consider in determining whether
Mackey, 'Riley, and J. C. Ragas would have received
wage increases absent, their protected activities is a con-
sideration of whether Respondent's evaluations of the
employees are consistent with other actions of Respond-
ent.
Ed Daigle testified that he prepared two forms on
each employee during October 1985, the performance re-
views and the employee progress reports. On completion
Daigle reviewed those forms with each employee and, in
some instances, made changes. The performance reviews
included percentage ratings in subcategories under each
of the three general categories.'4 The percentage ratings
totaled 100 percent. Each subcategory also included a
"performance rating"' and a "weighted rating." The
weighted ratings, which were computed by multiplying
the performance rating times the percentage rating for
each respective subcategory, were then totaled. That
total figure was divided by 100 for the "employment
overall performance' rating," a figure somewhere be-
tween ' 0 and 5. The average rating, according to the tes-
timony, of Chief Executive Officer Gayland Simmons,
was 3.0. All 3.0 and above received a wage increase.
The second form, the employee progress report, in-
cluded five general categories with three subcategories
under each of the flud general categories. Those general
categories for measuring each employee's work, included
attendance, personal qualifications, , capacity, attitude
toward job, and job performance. In comparison, the
performance review general categories included job per-
formance, job knowledge, and general attitude.
Because both forms-'were completed by Ed Daigle in
October 1985, a comparison of the two forms should
114 Four categories were listed but Daigle usually gave no rating in the
category "other." Daigle did on occasion rate under the "other" catego-
ry and employees Riley, Phillips, and Bartholomew received ratings in
that category
405
show a consistent pattern especially in comparison with
similar general categories.
In the case of August, Mackey, his average on the per-
formance review shows an average score of 2.2 under
job performance while Mackey's progress' report shows
an average between c and b under job performance. Be-
cause the progress report subcategories are rated from
"a" downward to "e," a conversion to numerical ratings
would have "e" as 1, and "a" as 5. After conversion to a
numerical accounting, Mackey's score is an average of
3.67 under job performance on his 'progress report.
Mackey scored an average 2.0 under general attitude on
his performance review while his converted average
under "attitude toward job" on his progress report
shows an average score of 2.67. Mackey's overall per-
formance review score was 2.31 while his overall con-
verted progress report shows an average score of 3.4.
J. C. Ragas was scored an average 2.4 on job perform-
ance and 2.5 on general attitude in his performance
review, while his average converted score on his
progress report was 3.33 on job performance and 3.0
under attitude toward job. J. C. Ragas received an over-
all performance review score of 2.52 while his overall
converted progress report shows an average score of 3.6.
Mervin Riley was scored an average 2.0 on job per-
formance, 1.0 under general attitude, and 1.0 under work
attitude in his performance review, while his average
converted score on his progress report showed that he
scored 3.33 on job performance and 2.67 on attitude
toward job. Riley received an overall performance
review score of 2.02 while his overall converted progress
report shows an average score of 3.33.
The only other employee performance review and
progress report in the record are those',of three employ-
ees that received wage increases, Gerald, Ragas, Claudia
Phillips, and Dwight Bartholomew.
On his performance review' Gerald Ragas received an
average score of 3.6 under the job performance and 4.0
under general attitude while his ' converted average
scores on his progress report were 3.7 under job per-
formance and 3.67 under attitudes toward job. Gerald
Ragas received an overall performance review score of
3.59 while his overall converted progress report shows
an average score of, 3.93.
On .her performance review, Claudia Phillips received
an average score of 3.0 under job performance and 3.5
under general attitude. Phillips was rated[ 3.0 under work
attitude. Her converted average, score on her progress
report reflects 3.33 under job performance ,and 3.67
under attitude toward job. ]Phillips received an overall
performance review score, of 3.15 while her converted
progress report shows an average score of 3:53.
Dwight Bartholomew's performance review average
under job performance was 2.8, under general attitude
4.0, and work attitude 3.0. Bartholomew's 'progress re-
port's converted scores were 3.3 under job performance
and 3.33 under attitude toward job. His 'overall perform-
ance review average was 3.12 and his converted overall
progress report averaged 3.°73.
The above figures reveal a general inconsistency be-
tween Daigle's ratings on the performance reviews and
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
his ratings on the progress reports. It appears that Daigle
consistently rated employees higher on their progress re-
ports than he did on the performance reviews. However,
there is a more pronounced inconsistency shown' when
the progress report scores on Riley, J. C. Ragas, and
Mackey are compared with progress reports and per-
formance reviews of Bartholomew, Phillips, and Gerald
Ragas.
In comparison J. C. Ragas' progress report showed an
overall converted score 1.08 points above his perform-
ance review average . Bartholomew, Phillips, and Gerald
Ragas scored higher on the progress report by 0.61, 0.38,
and 0.34 respectively. Riley scored 1.31 points higher on
his_ progress report while August Mackey was 1.09 points
higher on his progress report.
As to comparison scores, J. C. Ragas had a higher
progress report average score than Claudia Phillips, 3.6
to 3.53. Gerald Ragas and Dwight Bartholomew had av-
erage converted progress report scores of 3.93 and 3.73,
while similar scores for Mackey and Riley were 3.4 and
3.33.
Respondent did not explain the above-noted inconsist-
encies. While I find the inconsistencies are not persuasive
in considering whether the General Counsel has proved
a violation, I am persuaded that they should be consid-
ered in weighing whether Respondent has proved that
Mackey, J. C. Ragas, and Riley would have been rated
below 3.0 absent their protected activities. Respondent's
arguments backed by the testimony of Ed Daigle did not
show that August Mackey, J. C. Ragas, and Mervin
Riley would have been rated below 3.0 absent the pro-
tected activities or testimony. The examples recalled by
Daigle to illustrate deficiencies in the work performance
of Mackey, Ragas, and Riley were generally not specific.
Moreover, Daigle's testimony in that regard was negated
through credible explanations from Mackey, Ragas, and
Riley. Due to the successful rebuttals of Daigle's testimo-
ny, the lack of specificity in his charges, and the absence
of any documentation, I am convinced that Respondent
was satisfied with the work performance of August
Mackey, J. C. Ragas, and Mervin Riley until after they
engaged in protected activities and gave testimony.
Those factors and the inconsistencies in Daigle's ratings,
demonstrate that Mackey, J. C. Ragas, and Riley would
have received an average (i.e., 3.0) or better rating,
absent their testimony or protected activities.15
(2) Respondent discharged Mervin Riley: On 17 Octo-
ber 1985, Ed Daigle told Mervin Riley that he was dis-
charging Riley because Riley "had access to Company
vehicles and drove daily, knowing [Riley] had an invalid
license."
While off work on Saturday, 5 October, Riley was
ticketed for driving with an expired license. Riley had
been rear ended while ' driving his own automobile. Ed
Daigle learned of Riley's traffic ticket from his assistant
Ed Raber: Daigle then requested his insurance agent to
i5 'In view of the comparisons of the progress report ratings of J. C.
Ragas, Riley, Gerald Ragas, Bartholomew , and Phillips , I am convinced
that Mackey, J. C. Ragas, and Riley would not-have scored over 4.0
absent their protected activities and prior testimony. Therefore, their
wage increase backpay entitlement should be the same as the October
1985 increase award to employees that scored from 3 .0 to 4.0.
run a check on Riley's driver' s license . Daigle learned
that Riley's license expired" on 15 November 1984 and
that Riley had received an earlier traffic citation in Janu-
ary 1985.
The General Counsel argues that Riley was discharged
because of his protected activities and the fact that his
license had expired was only a pretext.
Conclusion: I shall examine whether the General Coun-
sel proved, prima facie, that Respondent discharged
Riley because of his protected activities and, if so,
whether the record demonstrated that Riley would have
been discharged absent his protected activities (see
Wright Line, supra).
As shown above Mervin Riley was one of the most
visible of those employees involved in protected activi-
ties . Riley was involved in union activities . He signed a
card, attended meetings, and testified in NLRB hearings.
During the prior unfair labor practice hearing Riley was
identified as one of the three employees that precipitated
the overtime suit against Respondent. The record shows
that Respondent was aware of Riley's protected activi-
ties.
Second, it does appear that Respondent acted hastily
in discharging Riley. Daigle first testified that he learned
that Riley's license had expired in November 1984 and
that Riley had been first ticketed in January 1985. On the
basis of that information Daigle phoned Riley when
Riley next` reported for work, and told Riley of his dis-
charge. Subsequently, when an issue arose during the
hearing about the extent of Riley's use of company vehi-
cles in 1984 and 1985, Daigle testified that he directed
one employee in Homeplace to check the gasoline tickets
to see if Riley drove company trucks after his license ex-
pired. According to Daigle he was told "that there was
numbers of tickets during this period of time which
Mickey Riley had signed for." Daigle admitted that he
did nothing else to check into Riley's use of company
vehicles.
J. C. Ragas and Mervin Riley credibly testified that
gasoline tickets are used to show only which employees
filled a particular vehicle with fuel. Employees other
than the operator oftentimes filled a vehicle at a gasoline
pump at Respondent's Homeplace facility. Additionally,
the record including testimony by Ed Daigle, shows that
logs are required to be maintained by each vehicle opera-
tor. Those logs show that the vehicle allegedly driven by
Riley was, until shortly before Riley's discharge, as-
signed to other employees.
I am convinced that Ed Daigle's made no more than
a cursory investigation which was designed to show that
16 As noted herein, Daigle's testimony frequently conflicted with other
supervisors' testimony including that of Superintendent Lawrence Wil-
liams and Supervisor Gerald Ragas . Additionally , Daigle's testimony was
not consistent with some of Respondent 's records-Those inconsistencies
have been mentioned herein. For example, Lawrence Williams testified in
direct conflict with Daigle regarding what Daigle was told regarding
Tim Williams' plans to return to college. Tim Williams' work application
submitted to Respondent , also shows that he planned to work only until
he could return to college Daigle's testimony was inconsistent with the
records and the testimony of Lawrence Williams.
DELTA GAS
Riley had operated company vehicles since his license
expired in November 1984. In fact, testimony of Supervi-
sor Gerald Ragas and Riley, and Respondent's vehicle
operator logs show that Riley was not assigned a compa-
ny vehicle until shortly before his discharge.17
In regard to the length of time Riley operated a truck,
Ecl Daigle admitted that 'that fact would have made a
difference in his discharge decision.
Moreover, the record, including Daigle's testimony, il-
lustrated that Daigle made no inquiries about why Riley
had failed to renew his license . Riley's unrebutted testi-
mony, which I credit, shows that he had little reason to
seek renewal of his license until August 1985. Before
then Riley's car was broken down and he had little occa-
sion to drive. Riley testified without rebuttal that the li-
cense office was closed due to a funeral, when he tried
to renew his license in August. After Riley' was assigned
a vehicle by Respondent, he returned to the license
office but was told that the computer was jammed. On
11 'October 1985, some 6 days'before his discharge, Riley
was issued a new, chauffeur's license. That license will
expire on 19 November 1989.
'Third, at the time of his discharge, Riley owned a
valid chauffeur's license. Again Ed Daigle's testimony is
in conflict with credible evidence. I credit the testimony
of Superintendent Lawrence Williams that Riley showed
Williams a copy of his valid chauffeur's license during
Riley's discharge phone conversation with Daigle and
that Williams immediately told Daigle that Riley had a
valid license. Obviously, at that point, Respondent had
no liability exposure as alleged by Daigle.
]Fourth, Daigle admitted the Respondent normally
used a progressive disciplinary system. Nevertheless no
explanation was offered about why Riley was discharged
even though he had never received an oral or written
warning. Moreover, the record shows that other employ-
ees had accidents in Respondent's vehicles but were not
disciplined and, in the mind of Ed Daigle, Dwight Bar-
tholomew operated unit 5 without a proper license. Bar-
tholomew testified that he had a class A driver's license.
Daigle admitted that a chauffeur's license is required to
operate unit 5.18 Bartholomew had not been disciplined
for his failure to hold a chauffeur's license.
The above facts convinced me that Riley was dis-
charged because of his protected activities and that the
basis alleged by Respondent, through Ed Daigle, is pre-
textual.
][ shall consider whether Riley would have been dis-
charged absent his protected activities.
One measure of whether Riley would have been fired
in any event is a determination of how Respondent has
reacted on similar occasions. Unfortunately, there were
no other occasions of Respondent learning that a vehicle
operator was holding an expired license. The closest situ-
17 Respondent correctly argued that the record is confused about the
period of time during which Riley drove a company vehicle . Neverthe-
less, I find that the record clearly established that Daigle made no more
than a cursory investigation and Daigle was not aware of the extent of
Riley's driving duties when he decided to discharge Riley.
18 Respondent , in its brief, argues that Daigle was mistaken and, in
fact, the law does not require the operator' of unit 5 to hold a chauffeur's
license. Be that as it may, the record shows that Daigle treated Riley in a
disparate manner since Daigle thought a chauffeur's license was required.
407
ation to, the instant one is the overall question of how
Respondent polices its employees' driver's licenses. The
record illustrated that Respondent does not regularly in-
quire into the status of its employees ' driver's licenses. In
fact, although Ed Daigle admitted, that unit 5, the unit
assigned to Riley immediately before his discharge, must
be operated by someone holding,a chauffeur's license,
the current operator, Dwight Bartholomew, has never
held a chauffeur's license (see above). Mervin Riley held
a chauffeur's license at the time of his discharge. The
record shows that offenses similar to, Riley's failure to
timely renew his license are routinely permitted without
discipline. Moreover, Respondent failed to follow its
progressive discipline policy concerning Riley. I find
that the record shows that Riley would not have been
discharged absent his protected activities.19
I find that Riley was discharged in violation of Section
8(a)(1), (3), and (4) of the Act.
CONCLUSIONS OF LAW
I
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Oil, Chemical & Atomic Workers International
Union and its Local 4-447 is a labor organization as de-
fined in Section 2(5) of the Act.
3. All production and maintenance employees includ-
ing meter readers/servicemen, measurement technicians,
welders,' construction and repair crewmen and ware-
house employees employed by the Employer at its Ho-
meplace and Jonesboro, Louisiana facility; excluding all
other employees, office clerical employees, guards' and
supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Respondent, by threatening its employees that they
had been denied a pay increase because of their union or
protected activities; and by telling its employees they
would not receive a wage increase because the employ-
ees and the Labor Board had sued Respondent, engaged
in unfair labor practices in violation of Section 8(a)(1) of
the Act.
19 Daigle also testified that he would not rehire Riley because he dis-
covered court records showing Riley had been charged with disturbing
the peace, attempted murder, and simple burglary. The record does not
prove that Daigle's discovery should preclude reinstatement of Riley.
The record shows that of the above charges, Riley was found guilty of
disturbing the peace and sentenced to $25 fine or 10 days in jail; regard-
ing the attempted murder charge Riley pleaded guilty to a' leaser charge
of aggravated battery and was sentenced to three years in jail; and re-
garding the simple burglary charge, Riley was found not guilty.
On his job application with Respondent dated 27 December 1982,
Riley indicated that he had been convicted of assault. Riley was inter-
viewed and hired by a relative of his, Superintendent Lawrence` Williams.
At that time Riley was also related to another of Respondent`'s supervi-
sors, Elton Turner (see Riley's job application). Riley testified that Wil-
liams knew of his criminal proceedings. Williams admitted knowing that
Riley had been in, prison. Therefore I find that, Respondent was aware of
Riley's one felony conviction at the time he was hired. Riley's applica-
tion form specifically excludes the necessity of listing "misdemeanors."
Therefore, Riley was never asked to list his other conviction, that of dis-
turbing the peace-
I find that Respondent knew of Riley's criminal record when he was
hired. Therefore, I recommend that Riley should be entitled to full rein-
statement.
408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5. By refusing to grant wage increases to its employees
J. C. Ragas and Mervin Riley, Respondent has engaged
in conduct violative of Section 8(a)(1), (3), and (4) of the
Act.
6. By refusing to grant a wage increase to its supervi-
sory employee- August Mackey, Respondent has engaged
in unfair labor practices in violation of Section 8(a)(1)
and (4) of the Act.
7. By discharging its employee Mervin Riley on 17
October 1985, Respondent has engaged in conduct viola-
tive of Section 8(a)(1), (3), and (4) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (4)
of the Act, I shall order it to cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent has illegally denied
wage increases to Mackey, J. C. Ragas, and Riley and
has illegally discharged Riley, in violation of Section
8(a)(1), (3), and (4) of the Act, I shall order Respondent
to offer Riley immediate and full reinstatement to his
former position or, if that position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and to make
August Mackey, J. C. Ragas, and Mervin Riley whole
for any loss of earnings ' they may have suffered as a
result of the discrimination against them. Backpay and
interest shall be'computed in the manner described in F.
W Woolworth Co., 90 NLRB 289 (1950), and Florida
Steel Corp., 231 NLRB 651 (1977).20
Recommendations
In view of my findings above regarding objections and
challenges to ballots in Case 15-RC-7190, I recommend
that a revised tally of ballots issue showing 13 votes
were cast for the Union, 9 votes were cast against the
Union, and there were 2 challenged ballots. The chal-
lenged ballots are insufficient in number to affect the re-
sults of the election.
In view of the determination about the challenged bal-
lots being insufficient in number to affect the results of
the election, and my fording that Respondent's objections
should be overruled, I recommend that the Union be cer-
tified as exclusive bargaining agent for the employees in
the unit described as follows:
All production and maintenance employees includ-
ing meter readers/servicemen, measurement techni-
cians, welders, construction and repair crewmen
and warehouse employees employed by the Em-
ployer at its Home Place and Jonesboro, Louisiana
facilities; excluding all other employees, office cleri-
cal employees, guards and supervisors as defined in
the Act.
20 See generally Isis Plumbing Co., 138 NLRB 716 (1962)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed21
ORDER
The Respondent, Delta Gas, Inc., a subsidiary of Lou-
isiana Energy & Development Corporation, Homeplace,
Louisiana, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing its em-
ployees in the exercise of the rights guaranteed them,by
Section 7 of the Act in violation of Section 8(a)(1) of the
Act by threatening its employees that they were denied a
pay increase because of their union and protected activi-
ties, and by telling its employees they will not receive a
wage increase because the employees and the Labor
Board have sued the Company.
(b) Denying wage increases, discharging, and refusing
to reinstate employees because of their union activities,
protected activities, or because they gave testimony
under the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer immediate and full reinstatement to Mervin
Riley to his former position or, if that position no longer
exists, to a substantially equivalent position without prej-
udice to his seniority or other rights and privileges previ-
ously enjoyed, and make August Mackey, J. C. Ragas,
and Mervin Riley whole for any losses they may have
suffered as a result of the discrimination against them in
the manner set forth in the remedy section of this deci-
sion.
(b) Remove from August Mackey's, J. C. Ragas', and
Mervin Riley's personnel files any reference to its denial
of wage increases to them and to its discharge of Riley,
and notify Mackey, Ragas, and Riley in writing that, this
has been done and that evidence of its unlawful actions
will not be used as a basis for future personnel action
against any of the three employees.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Homeplace, Louisiana facility copies of
the attached notice marked "Appendix."22 Copies of the
21 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
22 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
DELTA GAS
notice, on forms provided by the Regional Director for
Region 15 , after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
409
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re•.
spondent has taken to comply.