Louisiana Gas Service Co.

National Labor Relations Board - Board Decisions

Jul 29, 1991

303 N.L.R.B. 908 (N.L.R.B. 1991)

908
303 NLRB No. 143
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
2 We adopt the judge’s conclusion that Angelo Provenzano was a supervisor
under Sec. 2(11) of the Act. In addition to the judge’s findings on this issue
in the ‘‘Analysis’’ section of his decision, we rely on the entirety of Ragas’
credited testimony set forth in ‘‘The Facts’’ section of the judge’s decision.
3 The General Counsel has excepted to the judge’s failure to recommend
that Ragas be made whole for any loss of benefits, in addition to any loss
of pay, suffered as a result of his discharge. We find merit in this exception
and we shall modify the recommended Order and issue a new notice accord-
ingly. We also shall amend the recommended Order to provide for the correct
formula for the computation of backpay.
Louisiana Gas Service Company and John C.
Ragas, Sr. Case 15–CA–10816
July 29, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On November 26, 1990, Administrative Law Judge
John H. West issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed a limited cross-exception
and an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions,2 and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Lou-
isiana Gas Service Company, Port Sulphur, Louisiana,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Offer John Ragas immediate and full reinstate-
ment to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges pre-
viously enjoyed, and make him whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him. Backpay shall be computed
in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX B
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 or-
dered us to post and abide by this notice.
WE WILL NOT tell you that it would be futile for you
to select the Oil, Chemical, and Atomic Workers Inter-
national Union, AFL–CIO, Local 447 or any other
labor organization as your bargaining representative.
WE WILL NOT threaten you with discharge if you en-
gage in activities on behalf of the Oil, Chemical, and
Atomic Workers International Union, AFL–CIO, Local
447 or any other labor organization.
WE WILL NOT discharge you or otherwise discrimi-
nate in regard to your hire or tenure of employment or
any term or condition of employment to discourage ac-
tivity on behalf of the Oil, Chemical, and Atomic
Workers International Union, AFL–CIO, Local 447 or
any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer John Ragas immediate and full rein-
statement to his former job or, if such job no longer
exists, to a substantially equivalent job, without preju-
dice to his seniority or other rights or privileges pre-
viously enjoyed, and WE WILL make him whole, with
interest, for any loss of earnings and other benefits he
may have suffered by reason of the discrimination
against him.
WE WILL notify John Ragas that we have removed
from our files any reference to the unlawful discharge
and that the discharge will not be used against him in
any way.
LOUISIANA GAS SERVICE COMPANY
Denise D. Frederick, Esq., for the General Counsel.
Cornelius R. Heusel, Esq. (Kullman, Inman, Bee, Downing,
& Banta), of New Orleans, Louisiana, for the Respondent.
James E. Bergeron, of Westwego, Louisiana, for the Oil,
Chemical, and Atomic Workers International Union, AFL–
CIO, Local 447.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. On a charge
filed March 2, 1989, as amended on November 22, 1989, by
John Ragas, a complaint was issued on April 25, 1989, alleg-
ing that Louisiana Gas Service Company (1) violated Section
8(a)(1) of the National Labor Relations Act (the Act) by in-
forming its employees that it would be futile for them to se-
909LOUISIANA GAS SERVICE CO.
1 More specifically, Alleman testified that from September to December 15,
1988, he was in Port Sulphur four times a week; and that after December 15,
1988, he went to Port Sulphur once or twice a week. At the time of the hear-
ing he made the trip every other week.
2 John Ragas was hired as a serviceman C and Mackey was hired as a serv-
iceman A based on the salary they previously made at Delta Gas.
3 Patai testified that John Ragas brought up his union activities at Delta Gas
during the interview; that when Ragas asked him if he knew Ragus was a
union leader at Delta Gas, Patai, replied he did; that the superintendent at
Delta Gas, Lolly Jones, voluntarily told him before he interviewed that John
Ragas was a union leader at Delta Gas; that Koch was with him when he
spoke with Jones; that he believed that he told Ragas that it really did not
matter; that after he reviewed the benefits with Ragas, Ragas said that if Delta
Gas had benefits like this there would not be any need for a union; that he
discussed the interview with Koch and it is possible that he discussed the fact
that John Ragas said that he was involved in union activity during the inter-
view; that his notes of the interview, which may have included reference to
Ragas’ union activity, were placed in a file; that no one else has access to
that information; that a supervisor such as Alleman would have access to an
employee’s personnel file; and that he probably mentioned the interview to his
boss, David Hanrath, who is vice president of human resources.
4 Koch testified that he never told Alleman about his knowledge about John
Ragas’ union activities ‘‘prior to his employment at Louisiana Gas.’’ Hanrath
testified that he knew when John Ragas was hired that he was involved in
union activities at Delta Gas; that it was general knowledge that the employees
at Delta Gas had been involved in some organizing activities prior to the ac-
quisition of the system by Respondent; and that in reviewing with the manager
of employment and compensation those candidates he was recommending for
hire, it was pointed out to Hanrath, that Ragas had informed Patai that he was
an active union advocate.
5 Ragas testified that Patai said at that time that he knew about Ragas’ union
involvement.
6 G.C. Exh. 9, John Ragas’ application for employment with Respondent, is
not signed or dated by the applicant. Conditions of employment, set forth in
appendix A hereto, appear in the application immediately before the place for
the signature and the date.
7 Both Patai and Koch agree with the seating arrangement described by John
Ragas.
lect the Union as their bargaining representative and by un-
lawfully threatening its employees with discharge if they
continued to engage in activities on behalf of the Oil, Chem-
ical, and Atomic Workers International Union, AFL–CIO,
Local 447 (the Union) and (2) violated Section 8(a)(3) and
(1) of the Act by terminating Ragas. Respondent denies vio-
lating the Act.
A hearing was held in New Orleans, Louisiana, on No-
vember 29 and 30, 1989. On the entire record in this case,
including my observation of the demeanor of the witnesses
and consideration of the briefs filed by General Counsel and
the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Louisiana corporation, with an office and a
place of business in Port Sulphur, Louisiana, is a public util-
ity engaged in the sale and distribution of natural gas. The
complaint alleges, the Respondent admits, and I find that at
all times material Respondent has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act, and the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
Respondent sells natural gas to residential, commercial,
and industrial customers. It employs between 500 and 600
people who work out of a number of offices throughout Lou-
isiana. Braid Alleman is the customer service supervisor for
the West Jefferson District which covers two of Respond-
ent’s offices, namely, Marrero and Port Sulphur, Louisiana.
The latter office was involved in the acquisition by Respond-
ent of Delta Gas. Alleman works out of the Marrero office.
He testified that he travels to the Port Sulphur office between
one and three times a week;1 that he is in charge of the day-
to-day operations at Port Sulphur because he is totally re-
sponsible for the type of work being done and the results of
that work; and that he is in constant contact with the service-
men in that area by telephone and also through the office
personnel.
When Respondent purchased Delta Gas it hired four of the
former Delta Gas employees, namely, John Ragas, August
Mackey, Mary Jamison, and Orlando Ragas.2
John Ragas worked for Delta Gas from July 1979 until
September 1988. He interviewed with John Thomas Patai,
who is Respondent’s manager of compensation and employ-
ment, when Delta Gas sold out to Respondent. Ragas had
been a member of the Union since October 1987, holding the
position of chairman of the Local since December 1987. Ac-
cording to Ragas, two of Respondent’s supervisors or man-
agers knew about his union membership, namely, Patai3 and
Steve Koch, who is a district manager of Respondent.4 Ragas
spoke with Patai at the Port Sulphur office,5 and he spoke
with Koch in a coffee shop in Happy Jack, Louisiana, with
Patai, Mackey, Orlando Ragas, and Alleman present. Ragas
testified that during the meeting at Happy Jack he told Koch
that he could not sign Respondent’s application because of
his involvement in the Union or more specifically, he could
not sign the application because it contained a clause that the
Company could fire an employee for any reason and the em-
ployee had ‘‘to agree with whatever . . . [the company]
said.’’ Ragas was hired by Respondent on September 29,
1988.6
Patai did not recall John Ragas indicating that he had re-
fused to sign his job application because of his union activi-
ties and the language in the application indicating that the
Company was an employment-at-will company. Koch ulti-
mately made the decision to hire Ragas. Patai testified that
he never told Alleman that Ragas was involved in union ac-
tivities or that Ragas had told him that he was involved in
union activities; that he did not play any role in the decision
to terminate Ragas; and that he was not aware that Ragas did
not sign his application for employment.
Koch testified that while he did attend the above-described
meeting in the coffee shop and while he was sitting next to
John Ragas,7 he did not recall Ragas pointing out that he had
refused to sign his application because of his union affili-
ation or because he did not accept the language in the appli-
cation about the Company being an employment-at-will com-
pany; that he did not recall Ragas ever mentioning union ac-
tivities or discussing union business or anything to do with
the Union during the meeting in the coffee shop; that he did
not recall that the job applications were present that day; and
that he was not even aware that the application was not
signed until the hearing.
According to the testimony of John Ragas, Alleman was
his supervisor when he first started working for Respondent.
Ragas testified that Alleman came to Port Sulphur every day
for the first week; that Alleman then came every other day
910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The bank is also located in Buras, which is about 20 miles from Port Sul-
phur.
9 As noted below, these duties were assigned to Angelo Provenzano when
he came to Port Sulphur. John Ragas testified that these duties were not given
to someone else at his request.
10 On cross-examination, counsel for Respondent pointed out that an affi-
davit John Ragas gave to the National Labor Relations Board (the Board)
states ‘‘I do not recall that the gray haired man was reading from a paper as
he spoke to us.’’ (Emphasis added.) After stating ‘‘we are talking about pre-
cise words here,’’ counsel for Respondent then asked Ragas on cross-examina-
tion ‘‘And to the extent that this say, [sic] I do not recall the gray haired—
if the gray haired man was reading from a paper as he spoke to us, this is
wrong.’’ (Emphasis added.) Obviously ‘‘if’’ is not ‘‘that.’’
11 The prepared text reads, in part, as follows: ‘‘I want to explain to you
our position on unions. We do not have a union here now, and we are against
having one here in the future. There should be no doubt in your mind as to
exactly where we stand on this very important subject.’’
12 Alleman testified that dispatcher Stewart called him and said that he could
not get John Ragas with the beeper and that when Stewart called Ragas’ house
his wife laughed at him and hung up saying that she did not know where her
husband was. Alleman also testified that Ragas called him later that same
evening indicating that his beeper did not go off.
for about a month; and that after that Alleman came to Port
Sulphur about once a week, usually on Wednesdays. Regard-
ing his responsibilities at the outset, John Ragas testified that
Alleman told him that in addition to the service work he
would take care of the supply room, change the charts, run
the bank errands, and take care of the large compressor,
which is located in Buras, Louisiana,8 and used to compress
the involved gas, until Alleman could get someone else to
handle these duties.9 Ragas took until 1:30 p.m. each day to
perform these duties and for the remainder of the day he did
service work. Assertedly no one else did this work at that
time. John Ragas testified that at that time Jamison would
take the incoming calls and give them to Mackey in the
morning. Mackey would return to Respondent’s facility
around 2 p.m. to pick up Ragas who would then help Mac-
key on the jobs assigned. At that time, occasionally Ragas
would take a service call in the Port Sulphur area by himself.
About 2 weeks after John Ragas was hired, Hanrath came
to Port Sulphur to speak to the four above-described new
employees. Koch was also present. With respect to this meet-
ing, John Ragas testified that Hanrath told those assembled
that ‘‘with the company you could go a long way . . . this
company is not a union [sic], never was, and never will be’’;
that he was 6 or 7 feet from Hanrath and Hanrath was not
reading from a paper when he spoke to the employees;10 that
Hanrath had a briefcase in front of him but it was not open;
and that Hanrath was not looking down when he made the
statements but rather Hanrath was looking directly at him.
Hanrath testified that on October 14, 1988, he spoke to the
former employees of Delta Gas who had been hired by Re-
spondent; that the purpose of the meeting was to provide the
employees with a statement of the Company’s position re-
garding unions; that he has given such talks 30 to 40 times
since he started in 1981 or 1982; that he has a prepared text
which he uses; that he prepared the text in 1982; that he has
never indicated that there will never be a union at Respond-
ent; that he read the prepared text, Respondent’s Exhibit 3,
at the involved meeting;11 that he could not recall whether
he held the prepared text in his hand as he read it; that he
prefaced his reading of the text with a statement that he
knew of the employees prior union affiliation because he
wanted them to know that it had no bearing on their employ-
ment with Respondent but they needed to know how Re-
spondent felt about union organizing of its employees; that
he looked up at the people assembled when he gave the talk;
that he had a briefcase with him that day; and that Koch was
there.
Koch testified that Hanrath read a prepared statement, Re-
spondent’s Exhibit 3, to the employees assembled in Port
Sulphur; that Hanrath did not tell employees that the Com-
pany would never allow a union in or would never be a
union company; that the paper was on the desk in front of
Hanrath; that he did not recall if there was a briefcase on
the desk; that Hanrath made comments before and after read-
ing the prepared text; and that Hanrath was sitting when he
read the speech.
On rebuttal, John Ragas testified that he did not recall see-
ing Hanrath either holding a paper or looking down at a
paper when he talked to the employees.
Respondent’s Exhibit 5, dated November 16, 1988, spon-
sored by Alleman, is a request and complaint. The following
appears in the exhibit:
On this particular day, I was at the office in Port
Sulphur, when Mary Jamison gave this restore to J. C.
Ragas. J. C. left the office and returned at 2:30 p.m.
Mary asked him if he had restored this customer, he
said he had not. I questioned him as to why he hadn’t
restored it yet and he answered that he had driven to
Buras to give August a hand. It was then that I told
him that August was an A serviceman and capable of
doing his own work. I told him to go and restore this
customer.
John Ragas testified that he received the aforementioned
November 16, 1988 work order when he went back to the
facility at 1 p.m.; that he had some work to do en route to
this job; that when he arrived at the involved job it was rain-
ing and he had to wait until it slowed down enough for him
to work; that he took the plug out and turned the meter on;
that he had to light pilots, a heating system and a hot water
heater; and that he did not recall talking to Alleman about
this job.
According to Alleman’s testimony, sometime in November
1988 he spoke to Ragas about failing to respond to his beep-
er when he was on call to handle work which had to be done
after the normal workday. Ragas told Alleman that his beep-
er did not go off.12 Prior to this time, according to Alleman,
Respondent had experienced problems with the other type of
beeper being used by John Ragas and Mackey. Respondent,
according to Alleman, discontinued the use of that type of
beeper before this incident occurred. John Ragas testified that
this incident occurred around November 20, 1988; that he
first became aware of the problem when his wife came to
his brother’s house and told him that the dispatcher was try-
ing to get him by beeper; that he went into his brother’s
house and telephoned the dispatcher and asked him, Stewart,
what the problem was; that the dispatcher told him that
someone ran over a meter and gas was escaping from the
system; that he took the call; that he did not know how
Alleman became aware of the incident but the next day
Alleman was in the Port Sulphur office and he asked him
what was wrong with the beeper; that while Alleman could
not get the beeper to work, Jamison was able to get it to
911LOUISIANA GAS SERVICE CO.
13 Ragas related that once Jamison put some work on the desk and there
was a mistake. Assertedly Provenzano told Ragas that he was the supervisor
in the area and Jamison was not supposed to give anybody work. According
to the testimony of Ragas, another time a crew from out of the Port Sulphur
area came in to get some supplies and Provenzano said ‘‘them guys are not
supposed to get anything [without] it . . . [going] through me because I am
supervisor out here in this area.’’
14 One involved relighting the pilots in six or seven houses and the other
involved picking up a meter in the geographic area Mackey serviced. Regard-
ing the former, Ragas testified that Provenzano was with him at the site when
he told Ragas to do the relighting work; that Provenzano did not telephone
Alleman first before directing Ragas to do this work which was in Mackey’s
territory; and that Jamison would not make decisions about emergency work
without calling Alleman first.
work; that pursuant to Alleman’s instructions he then
changed the batteries in the beeper; and that Alleman said
that they were going to start to use beepers like the ones
which were used by Delta Gas.
When called by Respondent, Alleman testified that just be-
fore he brought Provenzano to Port Sulphur Alleman was not
satisfied with the work production of either Mackey or John
Ragas; and that he made allowances for Mackey because of
the area which Mackey worked.
In December 1988 Provenzano was sent to work in Port
Sulphur. Alleman testified that Provenzano was sent to Port
Sulphur to do service work; that he introduced Provenzano
to the employees at Port Sulphur; that Provenzano gave out
assignments to Mackey and John Ragas; that when
Provenzano gave out assignments he was acting under
Alleman’s direction to distribute work according to what
Alleman had ‘‘set . . . up,’’ namely, the geographic location
which each serviceman was assigned; that while Provenzano
spent a considerable amount of time in the office at Port Sul-
phur, he did have job responsibilities in the field, i.e., con-
tacting customers who had specific complaints; that
Provenzano’s duties in the office included taking care of the
storeroom, giving out materials, checking the paperwork, and
ordering materials; that the paperwork which Provenzano
checked included gas leaks and reports that were turned in
by the servicemen; that Provenzano was sent to Port Sulphur
to make sure that the work ‘‘was all being performed’’; that
Provenzano could not authorize overtime without contacting
him unless it was an emergency situation; that probably
Provenzano would radio Mackey and John Ragas during the
day and take them off a job and move them to another job
in response to a telephone call which came into the Port Sul-
phur office; that Jamison acts as dispatcher at the Port Sul-
phur office and if an emergency call is telephoned into the
Port Sulphur office, she can determine, without checking
with Alleman, whether to dispatch the call; that if John
Ragas or Mackey had a problem with something they would
go to Provenzano with it while he was in the Port Sulphur
office; that Provenzano was assigned to handle customer
complaints advising Alleman about them so that he could
make a decision; that Provenzano facilitated the training of
John Ragas and Mackey and he relayed any messages or in-
structions Alleman had for them; and that he did not tell
Provenzano about John Ragas’ work problems when Alleman
sent Provenzano to Port Sulphur but he did mention that
‘‘maybe one of the servicemen may have had too much work
[in that he] had the storeroom and he had the charts.’’
John Ragas testified that when Alleman introduced
Provenzano to him and Mackey in the Port Sulphur office
Alleman said
[T]his guy here [is] going to be stationed down in
your department. They had two other guys before this
that was just service men that was helping us out. But
he was putting Pro [Provenzano] there permanent, and
he was going to be our supervisor down in that area.
. . . .
He just said work along with him, and he told us
that whatever came through there, whatever kind of pa-
perwork we had—whatever problems we had, we had
to go through Pro and that he didn’t want Mary
Jamison giving us any more work or anything—that it
all had to come through Pro.
When Provenzano began working at Port Sulphur, John
Ragas and Mackey were given their daily assignments in the
morning by Provenzano. John Ragas testified that
Provenzano used the same office which Alleman occupied
when he came to Port Sulphur; that Provenzano would tell
them what order to do their jobs; that during the day
Provenzano would radio and change the job assignments;
that Provenzano would tell him and Mackey to come back
to the facility at 1 p.m. and at that time he would give them
other jobs; that originally Alleman required that all service-
man come in at 1 p.m. to check to see if there were any
other problems that needed to be worked on but unlike
Alleman, Provenzano required that the servicemen wait for
Provenzano if he was not at the facility when they checked
in; that Provenzano went to jobsites twice with him with one
involving a situation where heavy equipment had broken the
coating on a pipe and Provenzano radioed him and told him
to come back to the shop and pick Provenzano up and they
went to the site; that the other time the principal of Port Sul-
phur school spoke to Provenzano about a gas leak which ap-
parently employees of Delta Gas could not find; that
Provenzano radioed him and met him at the school and
Ragas found the underground leak in the playground after the
children were evacuated from the area; that when he located
a pipe for excavation Provenzano would tell him whether he
had to stay in case the excavator had any problems; that
Provenzano was a supervisor and he worked in the office
most of the time doing overtime sheets, assigning work,
keeping up with the paperwork in the supply room, and giv-
ing him and Mackey their orders; that Provenzano radioed
him to go to the area serviced by Mackey and assist Mackey;
that Provenzano told him that he was Ragas’ supervisor;13
that Provenzano assigned him work outside Ragas’ normal
geographic work area;14 that Provenzano was not doing the
same work as him and Mackey; that if he had any questions
about an assignment he would check with Provenzano; that
Provenzano decided which work had to be completed on the
day it was assigned; that he turned in all his work-related
documentation, including his timesheets, to Provenzano be-
cause Alleman said that Provenzano was the supervisor; that
Provenzano would initial the timesheets after reviewing
them; that Provenzano would approve overtime; that he did
not know whether Provenzano spoke to Alleman before de-
ciding whether or not Ragas could work overtime; that
Provenzano did not carry a beeper and he was not on call
912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Subsequently Allen testified, when asked if Provenzano acted as a super-
visor, that Provenzano was maybe more of a overseer who made sure that Re-
spondent’s standards were met. Allen also testified that Provenzano told him
which job to work and he would move him from one job to another.
16 Respondent’s counsel had to ask Provenzano twice whether he was told
he had the authority to direct their work since the first time the question was
asked Provenzano did not reply.
17 Subsequently, on cross-examination, Provenzano testified that the service
orders would be placed on his desk at Respondent’s Port Sulphur facility.
Then Provenzano testified ‘‘[n]ot mine. In Mr. Alleman’s office’’; and that he
occasionally used that office.
after hours; and that Provenzano never talked to him regard-
ing the amount of work shown on his daily trip sheets.
Respondent called Donald Allen, a former employee of
Respondent. He testified that when he worked for Respond-
ent he was an A-serviceman who worked in the Port Sulphur
area with John Ragas and Provenzano on a temporary basis
from December 1988 through February 1989 updating the
system there to meet Respondent’s standards. According to
Allen, Provenzano was in Port Sulphur ‘‘to supervise.’’15
Allen testified that Provenzano also changed meters, checked
for leaks, did turn-ons, and turn-offs; that Provenzano had his
own truck while he was in Port Sulphur; that Provenzano did
some service work in the field on an as-needed basis when
the work load got heavy; that Provenzano
went out—whether it was by himself or with another
service man to see how they performed, to help out, to
assist, you know, to make sure that maybe other service
men was [sic] doing the job like they were supposed
to be doing—you know, of the standards.
that he had no idea how many service calls Provenzano made
on his own; and that he did not know whether or not
Provenzano was making as many service calls as the other
people in the office.
Hanrath testified that at the end of 1987 Provenzano’s job
title was serviceman and since that time he has not been
classified by Respondent as anything other than a service-
man; that a serviceman does not have the authority to fire,
transfer, suspend, lay off, recall, promote, demote, discipline,
adjust grievances, grant wage increases, grant time off, ex-
cuse any absences, assign or direct the work of other service-
men, arrange vacation schedules, interview job applicants, or
to effectively recommend the hiring, firing, or disciplining of
employees; that Provenzano never received authority to do
any of the above-described things; and that Provenzano could
not have been designated a supervisor without the approval
of the human resources department.
Provenzano testified that he lives in Terrytown, Louisiana;
that before and after he worked in Port Sulphur he worked
in Terrytown; that prior to going to Port Sulphur, while in
Port Sulphur, and up to the time of the hearing he was never
advised that he had the authority regarding any of Respond-
ent’s employees to hire, fire, demote, suspend, lay off, give
a wage increase, direct their work,16 effectively recommend
disciplining an employee, arrange their vacation schedules,
grant employees overtime, give employees time off, or ex-
cuse an absence; that Alleman told him, regarding Port Sul-
phur, that he was to instruct employees on what to do so as
to comply with company procedures and to teach the em-
ployees how to fill out paperwork and make out time sheets;
that Alleman also told him that he would make the bank run
and take care of the storeroom; that Alleman did not tell him
that he was expected to supervise at Port Sulphur or that he
could tell the employees there that he was a supervisor; that
he did not receive a pay increase as a result of going to Port
Sulphur; that he did not carry a beeper and he did not accept
night calls when he worked in Port Sulphur because of the
travel; that he drove a company truck before, while and after
he was in Port Sulphur; that on December 12 Alleman told
the employees at Port Sulphur that he, Provenzano, was there
to help them with the work and the paperwork and to follow
company procedures; that at this meeting Alleman told the
employees that production was going to have to pick up; that
he did service work every day as a part of his routine while
in Port Sulphur; that he taught meter reader Orlando Ragas
how to do service work on days when Ragas did not have
a route; that ‘‘a bunch of times’’ he rode with John Ragas
and Mackey showing them how to hang meters; that after he
began working in Port Sulphur, Alleman assigned specific
territories to John Ragas and Mackey; that when Alleman
asked him how the employees at Port Sulphur were doing he
told him to look at the trip sheets, ‘‘[t]hey talk for them-
selves’’; that Jamison would put the work orders ‘‘on my
desk and I gave them out’’17 (emphasis added); that the work
orders were distributed according to territory; that if Ragas
went into Mackey’s territory or vice versa that had to come
from Alleman, and Provenzano did not make any independ-
ent judgment to give either Ragas or Mackey assignments in
the other’s territory; that he did not authorize overtime but
rather Mackey and John Ragas took turns a week at a time;
that he did not recall an incident involving Ragas assertedly
being asked to spot a line for parish crew and then being told
to come back and pick him up for that job; that he did not
recall ever stating that Jamison was to put work on his desk
because he was supervisor; that she put the work on his desk
because Alleman wanted him to know where the servicemen
were working; that he did not recall making a statement to
the effect that supplies could not be given out to a construc-
tion crew because he was the supervisor of the supply room
and the supplies were not to be given out unless he author-
ized it; that he never observed Ragas outside his assigned
territory during the workday; that he recalled an incident
when service was cut off to a row of houses in the Buras
area; that John Ragas had duty that night and he worked the
overtime because it ran after 5 p.m.; and that he was with
Ragas on this job. On cross-examination Provenzano testified
that he was in Port Sulphur for 8 months; that when he went
out on service calls he did not complete trip sheets; that John
Ragas and Mackey turned in their trip sheets to him and he
kept a record of them; that sometimes when Alleman came
to Port Sulphur he was wearing a uniform which was the
same color as Provenzano’s; that while he worked in Port
Sulphur he ‘‘pulled’’ weekend duty but he did not use a
beeper since he was always home; that he spoke with
Alleman almost every day about how things were going in
Port Sulphur; that he went with Ragas on service calls ‘‘any
number of times’’ but he had no idea whether this occurred
50 times or 10 or 5 times; that a great deal of training was
involved with the servicemen; that he did not tell John Ragas
or Mackey which jobs they should do first; that he called the
servicemen on the radio to go to another job; that Alleman
told him and the servicemen and he reminded the servicemen
that leaks are taken care of first; that he never told the serv-
913LOUISIANA GAS SERVICE CO.
icemen to wait for the people from the parish after spotting
a line; that he reviewed Ragas’ and Mackey’s service orders,
trip sheets and complaint/request forms to make sure that
they were filled out properly and then he would turn them
over to Alleman; that he did not go out that often by himself,
in special cases he would go out alone and catch gas hose
leaks; that he did service work every day by himself; that he
went out with a serviceman and he did his share of the work;
that unlike John Ragas and Mackey he did not go out and
do service work alone; that he just went out alone on emer-
gency work; that when he had lunch with Alleman and
Alleman asked how things were going he would tell Alleman
to check the timesheets; that he did not take service orders
for himself at the beginning of the day; and that depending
on the workload, he went out every day with the servicemen
on a truck.
When called by Respondent, Alleman testified that he
never told Provenzano that he was to be the supervisor of
the servicemen in Port Sulphur; that he never told the serv-
icemen in Port Sulphur that Provenzano was their supervisor;
that Provenzano did not have authority to discipline, hire,
fire, promote, and only relayed requests for overtime and
time off to Alleman for Alleman’s approval or disapproval;
and that when he would telephone Provenzano and ask him
about John Ragas’ performance, Provenzano would read off
a couple of jobs off Ragas’ trip sheet.
Koch testified that he was never asked to nor did he ever
authorize Provenzano to be classed as a supervisor.
Alleman testified, when called by the General Counsel,
that on the day Provenzano started at Port Sulphur Alleman
told John Ragas that since the storeroom, the charts and the
bank run were being assigned to Provenzano, Alleman ex-
pected Ragas’ production to improve. John Ragas testified
that the charts were handled by an employee from Harvey,
Louisiana, and Respondent began using a 7-day chart instead
of a daily chart; that Alleman did not talk to him and Mac-
key about production; and that he never told Alleman that he
could not do all of his serviceman work and still do the sup-
ply room, the bank runs, and the charts.
When subsequently called by Respondent, Alleman testi-
fied that when he spoke with John Ragas the day Provenzano
came to Port Sulphur Alleman told Ragas, ‘‘I am going to
be quite honest . . . if it keeps on like it is I won’t—you
know, I can’t justify keeping you all on if I can’t get the
work out.’’
According to John Ragas’ testimony, on December 23,
1988, while he was working with Mackey, Mackey’s beeper
went off. Ragas, not Mackey, was on call. Ragas telephoned
dispatcher Stewart and explained that he was on call. Assert-
edly Stewart said that ‘‘we never know who is working be-
cause they never have anything right up here.’’
On December 24, according to the testimony of John
Ragas, he found out that Mackey was being beeped notwith-
standing the fact that Ragas was on call. Ragas telephoned
the dispatcher who indicated that he had tried, unsuccess-
fully, to contact Ragas by beeper. Later that day he learned
that the dispatcher was dialing a long-distance number for his
beeper.
John Ragas testified that somewhere around December 28
he was filling out a report with Provenzano regarding a fire
which occurred at a job on December 24; that Provenzano
told him that he had to add something to the report and he
told Provenzano that that was not the way it happened; that
Provenzano left him and apparently went to the office where
Alleman was; that when he returned, Provenzano told him
that he had to change the form; that he told Provenzano that
because of his union involvement he could not fill the report
out the way Provenzano wanted; that Provenzano again left
with the report and returned telling Ragas that he had to
change the report; that he then told Provenzano that he
would call his union representative and if he said it was okay
Ragas would do it; and that Provenzano then said that he
should go with that Union and fill the report out any way
he wanted. Provenzano first testified that he did not recall
such an incident. On cross-examination, Provenzano testified
that he was told by Alleman, who was in Port Sulphur at the
time, that the fire report had to be changed; and that he as-
sisted Ragas in making the changes. And on redirect
Provenzano testified that Ragas did not refuse to correct the
report; that Ragas did not say that he was not going to
change the report because he wanted to talk to his union rep-
resentative; and that Ragas never discussed unions at all with
him.
On December 29, according to the testimony of John
Ragas, Provenzano told him that the dispatcher had been try-
ing to get Ragas on his beeper the day before. Assertedly,
John Ragas told Provenzano that the dispatcher did not know
how to dial the beeper, and that he did not appreciate the
dispatcher saying to Ragas’ wife that she always says that
Ragas is not home and it seemed to him that she was lying
and he would take it up with Ragas’ supervisor. Assertedly,
Provenzano then said that it seems like the dispatchers al-
ways have a problem reaching Ragas’ beeper. Ragas testified
that he then said:
[Y]ou see, that is why I was telling you about it. They
needed you—you need, I said, to straighten up some of
this mess that they got going on.
And he replied to me that you keep talking that
union talk you going to find yourself in the soup line.
So I told him if it was going to be that, so let it be
that. And I left . . . .
that Provenzano dialed the number for the beeper and it did
not work; that Provenzano eventually got the beeper to work
indicating to Ragas that, regarding his and Mackey’s beeper,
one was a long-distance number and one was not a long-dis-
tance number; that in early January 1989 Alleman changed
the beepers; that the new beepers had new numbers; that at
that time Alleman indicated that he was going to try a dif-
ferent type later; and that he did not recall any problems with
the beeper after that.
When asked by Respondent’s counsel if he told John
Ragas that if Ragas did not stop the union talk, he would be
in a soup line, Provenzano answered, ‘‘I don’t know nothing
about no union.’’ Provenzano went on to testify that he never
responded to Ragas that if he kept talking that union talk he
would be in a soup line; that Ragas never talked to him
about his activities in the Union; that Ragas never indicated
that he was a member of the Union; that Ragas never said
that the Company needed a union; that he talked to John
Ragas about his trip sheets telling him that Alleman was not
going to be satisfied with his job performance; that more
specifically, he talked to John Ragas about the work he did
914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Alleman estimated that the jobs listed would have taken a total of three
to three and one half hours, including driving time. Provenzano did not
corrobrate Alleman regarding how long it rained. Consequently it is the word
of one who was not in the involved area at the time against the word of some-
one who was in the involved area at the time.
on December 21, 1988, as reflected on the daily worklog or
trip sheet for that day, Respondent’s Exhibit 4; that he told
Ragas that Alleman ‘‘wasn’t going to buy this and there
wasn’t enough work being caught in eight hours’’; that
Alleman always called him and asked him how the service-
men were doing and ‘‘I said I am going to check the trip
sheets’’; that in his opinion, the trip sheet for December 21
does not reflect 8 hours of work by a serviceman; and that
Ragas said that that was the best he could do and then Ragas
said that he could not work under those conditions, ‘‘[h]e
would rather be in a soup line.’’ When asked about the entry
about spotting a line for the Port Sulphur waterworks,
Provenzano testified, ‘‘[s]potting those lines for the water-
works—they know where they are more than we do, and
there is nothing but plastic down there anyhow. It don’t take
that long.’’
Regarding the December 21, 1988 trip sheet, John Ragas
testified that shortly after reporting for work Provenzano told
him to accompany him to speak to someone about a trans-
mission for Provenzano’s son’s car; that later Provenzano
drove him back to Respondent’s facility and then he began
doing those jobs listed on the trip sheet for December 21;
that at 9 a.m. he arrived at a site to spot or locate a line for
the Port Sulphur waterworks; that some difficulty was en-
countered in finding the underground line and the job took
45 minutes; that he left the site to go to the next job and
en route, 10 or 15 minutes later, Provenzano radioed him and
told him to return to the site since the excavation crew had
hit the underground pipe; that while he was driving back to
the site Provenzano radioed him and told him to pick
Provenzano up at the Respondent’s facility and he would ac-
company Ragas to the site; that he arrived at the site a little
after 10 a.m.; that Provenzano looked at the pipe that the ex-
cavation crew hit; that he recoated the involved pipe and
brought Provenzano back to Respondent’s facility at about
10:25 a.m.; that it then took him about 1 hour, including
about 40 minutes of driving time to deliver four cut-off (dis-
continue service for nonpayment of bill) cards; that he then
took a 1-hour lunchbreak; that he then went back to the
warehouse arriving about 1 p.m.; that he left the warehouse
at 1:10 p.m. and drove for about 20 minutes to a rehang job
in Diamond, Louisiana, which job took about 45 minutes;
that he then drove to the church listed on the trip sheet and
rehung a meter, which he could not turn on because there
was no one present at the church; that he drove for 15 min-
utes to his next job in Diamond, which job was a turn-off
that took him between 10 and 15 minutes; that he drove for
about 20 minutes to his next job in Port Sulphur, which was
a turn-off that took between 10 and 15 minutes; that he
drove for 25 to 30 minutes to his next job in Empire, which
installation took 1 hour; that Provenzano radioed him and
told him that someone was at the church so Ragas drove for
45 minutes back to the church and turned on the gas; that
it was near quitting time so he returned to Respondent’s fa-
cility; and that Alleman never spoke to him about his De-
cember 21, 1989 trip sheet. Subsequently, John Ragas testi-
fied that Provenzano never discussed the December 21, 1988
trip sheet with him.
General Counsel’s Exhibit 2 is a semimonthly overtime re-
port of Respondent for the period ending January 10, 1989.
Alleman testified that his signature at the top of the form sig-
nified that he was in charge of the group involved, namely,
Mackey and John Ragas. Alleman testified that normally he
signs the form at the top before the servicemen put their
overtime on the form; and that regarding Port Sulphur, the
servicemen fill it out and then it is sent to him to sign. Gen-
eral Counsel’s Exhibit 3 is a similar form for the period end-
ing January 25, 1989. ‘‘Pro’’ for Provenzano appears where
Alleman normally signs the form. Provenzano testified that
he wrote ‘‘Pro’’ on General Counsel’s Exhibit 3; that this
does not indicate that he was authorizing overtime; and that
it indicates that ‘‘I checked it out—sent it to Mr. Alleman
and he checked it.’’ On cross-examination Provenzano testi-
fied that he did not know whether Alleman checked the Jan-
uary 25, 1989 overtime report and Alleman’s initials are not
on the report.
When called by Respondent, Alleman testified that the trip
sheet for January 20, 1989, Respondent’s Exhibit 6, has a
note which reads ‘‘talked to J.C. about amount of work not
consistent and no reasonable explanation. 1/23/88’’ (empha-
sis added); that his signature appears after this note; that the
trip sheet also includes the note ‘‘talked with Pro. he also
can give no reasonable explanation for amount of work being
done’’; that while the trip sheet notes ‘‘Rain’’ he talked to
Provenzano who assertedly told him that it rained for about
an hour or so; that even with the rain the jobs listed do not
represent 8 hours of work;18 and that he did not recall talk-
ing to Ragas but there was no doubt in his mind that he did
talk to Ragas as the note indicates.
On rebuttal, John Ragas, with respect to the January 20,
1989 trip sheet, testified that that day it was raining hard and
the policy was for him to work around the warehouse unless
it was drizzling in which case he would leave the facility and
do the work assigned; that the rain let up after lunchtime and
he left after speaking to Provenzano who told him if he
could work in the drizzling rain to go ahead; that Mackey
left to do outside jobs about the same time; that he left the
warehouse about 1:10 p.m.; that he drove for about 10 to 15
minutes to Empire where he took 1 hour to install a meter
and turn the gas on; that he drove 15 minutes to Happy Jack
where he spent 10 minutes on a turn-off; that he then drove
back to Port Sulphur to do an install but the installation of
the gas line was not finished at that time and so he could
not do the install; that he drove 15 minutes to Happy Jack
where he spent 10 minutes on a turn-off; that he drove for
10 to 15 minutes to Diamond, where he turned on service
after sitting in the truck for 5 minutes because of the heavy
rain; that he then drove 15 to 20 minutes to Happy Jack
Campsite to do a turn-on which took about 20 minutes be-
cause he had to light the pilots ‘‘and everything’’; that he
then drove 15 to 20 minutes to the church listed and did a
restore which took 35 to 40 minutes because there was a
problem with the piping on a new stove and he had a prob-
lem lighting it; that on the way back to the warehouse he
stopped at the aforementioned install job and did it since the
gas line had been completed; and that he returned to the
warehouse at about 5:20 p.m. The first entry on the involved
trip sheet is ‘‘Rain.’’ Over the objection of counsel for Re-
spondent, General Counsel’s Exhibit 10 was received in evi-
915LOUISIANA GAS SERVICE CO.
19 Apparently it is some kind of a compartment for writing on and for stor-
ing papers.
20 Ragas testified that he did not recall ever saying anything about the Com-
pany’s performance and the need for a union to Alleman.
21 Alleman testified that trip sheets give the address where the service was
rendered and the type of jobs that the serviceman does on a given day.
dence. It is the trip sheet for Mackey for January 20, 1989.
The first entry on the trip sheet is ‘‘Rain.’’ Thereafter there
appear to be four service orders listed, namely, two turn-offs,
one turn-on and one ‘‘notify NSF.’’ As discussed above,
John Ragas’ trip sheet for the same day contains what appear
to be eight service orders, namely, two installs, three turn-
ons, two turn-offs, and one restore.
On January 30, according to the testimony of John Ragas,
he discussed with Provenzano, in the presence of Mackey,
the possibility of having Respondent give them credit toward
seniority at Respondent for the years they worked for Delta
Gas. Provenzano told him that Ragas did not want to bring
that up. Ragas testified that he then said that he was going
to telephone his union representative and see if he would
speak to somebody about it; and that Provenzano said, ‘‘You
don’t want to do that either, and he got mad and walked
off.’’
On January 31, 1989, John Ragas reported that his truck
had a problem. Allen testified that pursuant to instructions
from Alleman, he brought his truck from Marrero and
switched it for John Ragas’ truck which he drove back to
Marrero for repairs. David Suffy, who was formerly em-
ployed by Respondent as a mechanic at Marrero, testified
that he worked on John Ragas’ truck in January 1989; that
the work he performed was a regular maintenance inspection;
and that the console or secretary19 was not in the truck at
the time. Allen could not recall whether or not the console
was in Ragas’ truck when he drove it to Marrero and subse-
quently back to Port Sulphur.
According to Alleman’s testimony, in January 1989 he had
his final talk with John Ragas about his production. Alleman
testified that he had been at Port Sulphur the week before
and he was totally dissatisfied; that during his January 1989
talk with Ragas he told Ragas that he did not see any im-
provement in production notwithstanding the fact that he as-
signed the charts and the storeroom to someone else; that he
told Ragas that he should be doing a lot more maintenance
work than he was doing; that Ragas completed the service
orders which were given to him but he did not, when he fin-
ished his specifically assigned work for that day, change me-
ters and regulators which was called for by Respondent as
part of its program to upgrade the system it acquired over
from Delta; and that when he spoke to John Ragas in Janu-
ary 1989 Alleman was referring to between three and five
trip sheets. When asked by the General Counsel whether he
showed Ragas the trip sheets during this discussion, Alleman
testified as follows: ‘‘I would have probably—and what I did
was pull out one trip sheet and question him about it.’’ Also,
Alleman testified that he relayed his dissatisfaction with this
and possibly some other work Ragas did on other trip sheets;
and that he did not ask Ragas to explain each of the jobs
that he had listed on that trip sheet. Alleman thought that he
had reviewed the back-up information for the trip sheets on
this occasion.
John Ragas testified that sometime in January 1989 he was
talking with a member of the crew and the location of the
union hall came up; and that Provenzano overheard the con-
versation and he said ‘‘you are back here talking that union
talk again.’’ Provenzano testified that he did not say to
Ragas ‘‘there you go talking that union talk again’’; and that
he did not recall this conversation.
On February 1, 1989, according to the testimony of John
Ragas, he returned to the Port Sulphur facility at 1 p.m. to
see Provenzano. He testified that he was driving Allen’s,
truck; that Provenzano did not arrive at the facility until 1:30
p.m.; that he asked Provenzano if he had anything specific
that he wanted Ragas to do; that Provenzano asked him what
he was doing at the facility at that time of day; that he told
Provenzano that Provenzano told him to come and wait to
see if he had anything specific for him to do; that
Provenzano kept looking at his watch and Ragas said, ‘‘Your
daddy must have been a watch maker’’; that he then said,
[Y]ou are going to try to make something out of this
. . . but I am only following your orders.
You told me to come here and wait on you. I said,
you see why they need a union in here, I said, to
straighten out some of this mess that is going on;20
and that Provenzano just said that he did not have anything
for him. Provenzano testified that Ragas did say that
Provenzano’s daddy must have been a watchmaker; that he
told Ragas that ‘‘if he wouldn’t be in the yard all the time,
I wouldn’t have to look at my watch’’; and that he was look-
ing at his watch ‘‘[t]o see what he was doing in the yard
that evening when he was supposed to be out on a job.’’
When asked by Respondent’s counsel whether Ragas said,
‘‘[y]ou see why we need a union here to clear this up,’’
Provenzano replied, ‘‘No sir. Don’t know nothing about
that.’’ Provenzano also testified that Alleman told Ragas to
be back in the yard at 1 p.m. to meet Provenzano on a daily
basis; that he did not tell Ragas to wait until he got there;
and that this incident occurred around 3 or 3:30 p.m. when
he had just driven into the yard in his truck.
On February 2, 1989, John Ragas was terminated. When
called by the General Counsel, Alleman testified that he de-
cided to terminate John Ragas; that on the morning of Feb-
ruary 2, 1989, Provenzano told him that Alleman might want
to take a look at the trip sheets again; that Ragas was termi-
nated because he did not apply himself on the job; that dur-
ing John Ragas’ employment with Respondent between Sep-
tember 1988 and February 1989 Alleman went with John
Ragas to his jobs three times; that he told John Ragas and
Mackey to fill out their paperwork and get out of the office
as soon as possible in the morning; that, nonetheless on sev-
eral occasions when he visited Port Sulphur they were still
in the office at 9:30 or 9:45 a.m.; that on several occasions
John Ragas would come back to the office during the day;
that several of John Ragas’ trip sheets21 demonstrated that he
did not do a ‘‘very good day’s work’’; that on several occa-
sions the trip sheets would have four, five, or six jobs which
should have taken a total of no more than 3.5 or 4 hours;
that he saw trip sheets of John Ragas of this sort about a
dozen times between November 1988 when the use of such
reports started and February 1989 when Ragas was termi-
nated; that he spoke to John Ragas about the amount of work
on the trip sheets on at least four occasions; that in Novem-
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 Alleman testified that John Ragas did more work changing charts than
Mackey.
23 Hanrath testified that Respondent does not have a formal disciplinary pro-
gram that would require a personnel file filing; that there have been cases
where written reprimands have been made part of the file but it is not a rou-
tine; that supervisors are always advised to follow three rules as it relates to
discipline, namely ‘‘document, document, document’’; that usually the docu-
mentation would be for the purpose of the supervisor’s own record; that rarely
is any documentation given to the employee; that in those unusual cases where
the reprimand becomes a part of the personnel file, it is usually presented to
the employee for his review and signature before it is placed in the file; that
such documentation could include observations by a supervisor; and that it is
not Respondent’s practice to give the employee a termination slip.
24 The cards were membership cards for individuals who were already in the
Union.
25 Ragas testified that he told Provenzano the contents of the folder because
Provenzano asked him what was in it. The affidavit Ragas gave to the Board
indicates that he told Provenzano that it was just personal stuff, ‘‘I did not
tell Pro what it was.’’ Ragas testified that he later recalled telling Provenzano
the contents of the file.
ber 1988 John Ragas told him that he could not handle the
duties he assigned to Ragas because he had storeroom duties
and was responsible for changing charts;22 that it is possible
that something can happen on the job, i.e., a leak, that would
cause the serviceman to be at the site longer than anticipated
for the original job; that by looking at the trip sheet only,
one would not be able to tell what happened on a job; that
in early November 1988 he spoke with John Ragas and Mac-
key telling them that production should be better; that he in-
cluded Mackey because he also had trip sheets which
Alleman was not satisfied with; that in late November or
early December 1988 he spoke with John Ragas again about
what his trip sheets showed, and this is when Ragas indi-
cated that he had other jobs to do at the facility such as
maintaining the storeroom, changing the charts, and some-
times making bank runs; that within a couple of weeks he
assigned the bank run, and the handling of storeroom mat-
ters, among other things, to Provenzano; that on February 2,
1989, he looked at the six or seven trip sheets John Ragas
had handed in since the last time they had talked; that there
was no excuse for the amount of work shown on the trip
sheet for February 1, 1989; that he did not review the other
documentation for the work done on February 1, 1989, by
Ragas; that the trip sheets do not show how much time is
spent in travel; that he based his decision to terminate Ragas
‘‘on several trip sheets and several conversations that . . .
[he] had with . . . [Ragas] and a generally accepted feeling
that . . . [Ragas] was not applying himself in his job’’; that
when he spoke to Ragas about his performance Provenzano
was present; that he asked Ragas why there were only four
or five jobs on the trip sheet when the production should
have been more; that no customer complained about any of
the jobs on the trip sheets; that he did not give Ragas a ter-
mination sheet; that he had never given Ragas a written per-
formance warning;23 and that in a period of 7 years he termi-
nated probably about six people with five terminated for drug
related violations of company policy and the sixth was a
meter reader who could not reduce his very high error rate.
Regarding February 2, 1989, John Ragas testified that
when he arrived at work that morning he noticed that his
truck which he had sent to the shop was back; that a folder
was missing from the truck; that he asked Provenzano about
it telling him that the folder contained some union cards that
Ragas was supposed to give to some people;24 that he also
told Provenzano that the folder contained some notes he had
about some different conversations and a doctor’s report on
his injured finger;25 that Provenzano said that he would
check with the foreman about it; that he telephoned Alleman
about it but he did not get through to Alleman; that he left
the facility to do some work; that shortly after 1 p.m.
Alleman came over the short wave radio and asked him how
long it was going to be before he came back to the office;
that Provenzano had assigned him to work in Mackey’s area
that day; that he went back to the office; and that
[W]hen I came into the warehouse, Braid [Alleman]
was there, and Pro [Provenzano] was there. And Braid
asked me what I did the day before, which would have
been the 1st. And so I told him—I was explaining to
him what I did. And he asked me what I was doing in
this particular area, which would have been Triumph.
And I told him I had a green order to go and pick
up a meter that was—then he told me—he said, that is
not your area. That is . . . Mackey’s area. I said, well,
Pro give it to me to go down there, I said, because Au-
gust was at a meeting.
. . . .
[Alleman] said, well, I don’t want you in August’s
area. He said, you are supposed to work in your own
area. Your area is from the bridge up. So I said, well—
I said, I had a green order to go down there. I said, Pro
give it to me. And he looked at Pro, and he asked
Pro—he said, didn’t I have two other service men down
in that area?
And Pro told him, yes. And so then he asked me—
he said, well, what else you did? He said, look at this
trip sheet. And I wanted to go and explain to him about
the trip sheet. Then he said, all right. Come back in
later. He said, go back out to work.
Come back in later, and we are going to talk more
about it. And I was about to leave, and then he said,
wait. He said, it is just not working out. So I asked
him—I said, what is not working out? He said, it is just
not working out. He said, I don’t think the company
can use you any more.
Ragas testified that Alleman had two trip sheets on his desk,
namely, the ones for January 31 and February 1, 1989; that
no one asked him about the trip sheets other than why he
was in Triumph; that Alleman did not ask Provenzano if he
had given Ragas a green order to go out to Triumph; that
Provenzano gave him a ride home and told him ‘‘I kept tell-
ing you about that union talk. . . . you kept talking . . . and
I said it was going to get you in trouble’’; that he never re-
ceived anything in writing about his termination; that he
never received any written reprimands or letters about his
performance or his conduct on the job; that no one ever told
him that he did not complete enough work in a day or about
being too slow on the job; that Alleman never went to a job
with him; that Provenzano went on two or three jobs with
him; and that the only formal evaluation he received while
working at Respondent’s was a certificate of appreciation
from Koch in October.
John Ragas, using the trip sheet and two service orders,
General Counsel’s Exhibits 5, 6, and 7, described exactly
917LOUISIANA GAS SERVICE CO.
26 John Ragas testified that on the last job of the day when he went to
change the meter and regulator the line was broken and he had to go to the
warehouse to get a plastic fitting. Provenzano testified that occasionally when
a meter and regulator are changed the PVC plastic pipe has been in the ground
so long that it can ‘‘pop like popcorn in the ground’’; that the pipe in the
Happy Jack area is under water when the water rises; and that it takes from
20 minutes to an hour to install a meter without special problems.
27 This term was used by Respondent’s counsel and he later changed it to
trip sheets. Alleman testified that there were one or two occasions when he
discussed the trip sheets with John Ragas with Provenzano present.
28 Ragas testified that he ‘‘would say yes’’ that he had started organizing
employees at Respondent when he was terminated. But in his statement to the
Board Ragas indicates that he was not engaged in organizing.
29 According to Provenzano when Alleman asked how things were going
Provenzano never said, ‘‘Things are good, bad . . . are working okay [or]
[w]e have a lot of work’’ but rather he would only say ‘‘[l]ook at the trip
sheets.’’ Subsequently, Provenzano testified on cross-examination that he
spoke with Alleman every day and that he would tell Alleman that things were
running smoothly or that not enough work was getting done. According to
Provenzano’s testimony, normally the work assigned was completed on that
day.
what he did from the beginning of his workday on February
1, 1989, to the end of the workday.26
On cross-examination, John Ragas testified that before
February 2, 1989, Alleman never indicated to him that he
was not producing as much work as expected; and that be-
fore February 2, 1989, Alleman never talked to him about his
‘‘work logs’’27 and the amount of work he was performing
on a specific day. Ragas also testified that he had been talk-
ing to Mackey, trying to get him to join the Union.28
Provenzano testified that he did not determine whether
John Ragas was performing a full day’s work on a regular
basis for the Company but rather he turned Ragas’ February
1, 1989 trip sheet over to Alleman for that determination
‘‘because he was the supervisor.’’ When asked during the
trial for his opinion of John Ragas as a worker, Provenzano
testified that Ragas could have done better; he did not apply
himself. With respect to John Ragas’ termination,
Provenzano testified that Alleman telephoned him the night
of February 1, 1989, and asked him how things were going;
that he told Alleman that he should come down and check
the timesheets;29 and that he did not take or see any docu-
ments relating to the Union or conversations Ragas had in
John Ragas’ truck. When asked by counsel for Respondent
‘‘[d]id he [Ragas] tell you on that morning before Mr.
Alleman came there, that he was missing certain personal pa-
pers from his truck,’’ Provenzano replied, ‘‘[N]o, sir. Knew
nothing about that.’’ Provenzano went on to testify that
Alleman did not ask him to recommend whether Ragas
should be terminated and he did not recommend that Ragas
be terminated; that Alleman did not tell him that Ragas was
going to be terminated before Alleman took that action; that
he was present during the meting with John Ragas and
Alleman when Ragas was terminated; that Alleman told
Ragas that he was not satisfied with Ragas’ job performance;
that he could not remember Ragas’ response other than that
Ragas said that that was the best he could do; that he did
not recall instructing Ragas to go into Mackey’s territory to
pick up a meter on one of the trips included on General
Counsel’s Exhibit 5; that he was surprised that Ragas was
terminated; that Alleman asked him to drive Ragas home;
that on the way to Ragas’ house he told Ragas, ‘‘[W]ell, I
told you one day it was going to catch up with you’’; that
he meant Ragas’ job performance when he made this state-
ment; that during the ride to Ragas’ home he asked if he
could come back to the office and get some important papers
off his truck; that Ragas did not say what important papers
they were; that he said yes; that when he returned to the of-
fice Alleman told him to go get any service orders Ragas had
in the truck and bring them into the office; that he found a
bunch of trip sheets in Ragas’ truck; that he did not find any
union membership cards or anything that looked like notes
of conversations; and that he found the trip sheets in the
fold-over seat. On cross-examination, Provenzano testified
that he did not ask John Ragas what each of the jobs on the
trip sheet for February 1, 1989, involved; that based on his
own experience the jobs listed on General Counsel’s Exhibit
5 should have only taken 3 or 4 hours; that he did not recall
exactly where the pressure checks performed by Ragas on
February 1, 1989, were located; that something could defi-
nitely happen at the site which could cause the serviceman
to be delayed there; that in the Happy Jack area the PVC
pipe was always under water when the water rises; that it
was easy to break a PVC pipeline there; that he told Alleman
that he thought John Ragas could have done more work; that
he told Alleman this every time he talked to Provenzano
about the trip slips; that he had discussed Ragas’ trip sheets
with him up to four times; that up to three times he told
Ragas that his performance was going to catch up with him
one day; that Alleman telephoned him the day before Ragas
was terminated and Alleman asked how things were going;
that he told Alleman that it was not improving any and that
he should come down and check the trip sheets himself; that
Alleman did not ask about a specific employee and he did
not refer to a specific employee when he said things were
not improving; that when Alleman came to check the trip
sheets before this he looked at Ragas’ and Mackey’s; that he
did not recall whether John Ragas had a compartment for pa-
pers in his truck; that other than February 2, 1989, he never
sat in on a meeting between Alleman and John Ragas regard-
ing the latter’s job performance and Alleman never men-
tioned to him that Alleman held such a meeting with Ragas;
that Ragas has never been given a job outside of his terri-
tory; that if one of the jobs listed on Ragas’ trip sheet for
February 1, 1989, was in Buras it would have been outside
of his territory; that he did not know anything about that job;
that he gave the service orders to Ragas for the other jobs
listed on the February 1 trip sheet but he did not recall this
one in Buras; that Mackey did attend a meeting that day and
he did not come into work; that he checks the trip sheets
which the servicemen turn into him; that he did not discuss
with Alleman that the Buras job was not in Ragas’ territory;
that he did not know if the question of this being outside of
Ragas’ territory came up on the day Ragas was terminated;
that he did not recall Alleman asking Ragas anything about
his trip sheet for February 1 or 2, 1989; that in looking at
any individual trip sheet it might be difficult to determine
how much time a serviceman might have to spend on a job
without actually knowing the specifics of the job; and that
in reviewing the trip sheets of Ragas and Mackey he noticed
a substantial difference in the work reflected in their trip
sheets over a 1-month period.
Alleman, when called by Respondent, testified that he did
service work for 20 years and with rare exceptions he knows
how much time it would take to complete a turn-on, turn-
off and install or change a meter; that originally he had
planned on going to Port Sulphur on February 2, 1989; that
918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 The other involves the assertion by Respondent that John Ragas’ February
1989 affidavit to the National Labor Relations Board (the Board) indicated that
Provenzano never went on service calls with him but at the hearing herein
Ragas allegedly stated that they did go on jobs together. The following is the
testimony on this matter:
Q. Did you ever indicate to counsel for the General Counsel that Pro
[Provenzano] did not go with you on any of your jobs?
A. No.
Q. Let me show you page 16 of this statement. Would you read this
line I am pointing to? It begins with the word Pro. A Yes. ‘‘Pro did not
go with me on my jobs.’’
Q. Did he go with you on some jobs?
A. Well what I meant about that is that he didn’t come out and work
with me, like, from 8:00 to 5:00. That was my understanding of what
they were asking me.
Ragas explanation is reasonable, especially in the light of the fact that else-
where Ragas did testify regarding occasions when Provenzano was with him
at a jobsite.
Provenzano telephoned him and told him and said that you
may want to come down here; that when he arrived in Port
Sulphur he reviewed 10 or more of Ragas’ trip sheets for
consecutive days; that he called Ragas in to talk to him and
when he saw that ‘‘it wasn’t going anywhere’’ he decided
to terminate Ragas; that prior to that he had not received any
authorization to terminate Ragas; and that on three or four
different occasions he spoke to Koch about the job perform-
ance of the servicemen at Port Sulphur, indicating to Koch
that while Mackey was attempting to do things the way Re-
spondent wanted them done, Ragas ‘‘was not really making
the turn.’’ When asked, ‘‘[d]id you call Mr. Koch that morn-
ing and tell him you were going to terminate Mr. Ragas,’’
Alleman testified, ‘‘I tried to reach Mr. Koch in his office
prior to talking to Ragas, and he was not in that day.’’
Alleman also testified that no one ever told him that they had
found some papers in John Ragas’ truck which indicated that
he was involved in union activities; that when Provenzano
returned from taking Ragas home, he asked Provenzano to
remove any service orders or requests from Ragas’ truck;
that Provenzano found a clip board with a couple of requests
on it and also he found copies of trip sheets; and that he was
not aware of any union activity on the part of John Ragas
prior to the time he terminated him.
Koch testified that he was not aware prior to the time John
Ragas was terminated that he was going to be terminated;
that he was aware of performance problems which Alleman
felt he was having with Ragas since Alleman informed him
of them on two or three occasions; that the problems related
to productivity; that Alleman never told him prior to Ragas’
termination that Alleman was aware or concerned about any
union activities on the part of Ragas; that he was not at work
the day Ragas was terminated but it was not necessary for
Alleman to obtain permission from him before terminating
Ragas; and that he spoke with Alleman the day after Ragas’
termination and Alleman told him that he had reviewed
Ragas’ trip sheets and he was not satisfied with the produc-
tivity.
On rebuttal, John Ragas testified that he was never coun-
seled about the amount of work on his trip sheets and
Provenzano never told him that Alleman was not satisfied
with the amount of work he was doing and he was going to
have a problem as a result.
Alleman sponsored a performance review form on
Provenzano which has a completion date of February 28,
1989. Respondent’s Exhibit 7. Alleman wrote the following
on the form: ‘‘Pro is assisting me in a much needed area,
providing new L.G.S. employes in the Port Sulphur area,
with service instructions and guidance. I recommend a raise
of $113.00 a month (1356.00) for Pro.’’
Analysis
Taking the last of the violations alleged in the complaint
first, one must wonder why Alleman came to Port Sulphur
on February 2, 1989. Alleman testified that he had planned
to come to Port Sulphur on February 2 even before he spoke
to Provenzano. But as noted below, in my opinion Alleman
was not a credible witness. Regarding the conversation
Alleman and Provenzano had just before the visit, the testi-
mony of these two witnesses conflicts. More specifically,
Alleman, when called by counsel for the General Counsel,
testified that on the morning of February 2, 1989,
Provenzano told him that Alleman might want to take a look
at the trip sheets again. Provenzano testified that Alleman
telephoned him the night of February 1, 1989, and asked him
how things were going, and he told Alleman that he should
come down and check the trip sheets. Provenzano also testi-
fied that Alleman telephoned him the day before Ragas was
terminated and when Alleman asked how things were going,
Provenzano told Alleman it was not improving any and that
he should come down and check the trip sheets himself. Sub-
sequently, Alleman testified that Provenzano telephoned him
and said you may want to come down here. Did Provenzano,
as asserted by Alleman, telephone Alleman? Would not this
be a change in routine in that Provenzano testified that nor-
mally Alleman telephoned him? If Provenzano did initiate
the telephone call on February 2, 1989, to Alleman, did he
say to Alleman, as Alleman testified, that ‘‘you may want to
come down here?’’ Was the reason for Provenzano’s tele-
phone call and his statement to Alleman that he ‘‘may want
to come down here’’ John Ragas’ statement to Provenzano
that Ragas was missing some union cards? As pointed out
by Respondent on brief, the resolution of what happened be-
tween Provenzano and Ragas basically comes down to the
credibility of Ragas versus Provenzano. Respondent asserts
that Provenzano’s story remained the same throughout his
testimony while Ragas testified inconsistently on more than
one occasion. Respondent cites two instances when Ragas as-
sertedly testified inconsistently. One involves the situation at
hand.30 It will be treated below. But first it should be noted
that contrary to Respondent’s assertion, Provenzano’s story
did not remain the same throughout his testimony. One need
only review the summary above to see that just the opposite
is the case. The inconsistencies, internal conflicts, and
changes are numerous. Provenzano seemed to be guided by
the idea that he could not admit anything which would indi-
cate that he was a supervisor. His testimony regarding the
December 21, 1988 trip sheet was incredible in that he never
denied that at 8 a.m. he took John Ragas, who should have
been working, to see someone about a transmission for
Provenzano’s son’s car. Regarding that same trip sheet,
Provenzano testified that he did not recall an incident involv-
ing Ragas assertedly being asked to spot a line for a parish
crew and then being told to come back and pick up
Provenzano, so that he could see what damage occurred
when the excavation crew struck a gas line. Provenzano, as
noted above, testified that ‘‘[s]potting those lines for the wa-
terworks—they know where they are more than we do, and
there is nothing but plastic down there anyhow. It don’t take
919LOUISIANA GAS SERVICE CO.
31 As one would note reviewing the testimony as summarized above, there
was a lot which Provenzano did not recall.
32 Provenzano had his own company truck and there was no explained rea-
son for Ragas to go to Respondent’s facility to pick up Provenzano when he
could have used his own truck.
that long.’’ In other words, Provenzano did not testify at all
about taking up Ragas’ worktime to see a man about a trans-
mission for Provenzano’s son’s car and the best Provenzano
could manage about the excavation incident was not an un-
equivocal denial but rather only that he did not recall the in-
cident.31 Ragas, whose testimony was very specific, is cred-
ited regarding the incidents of December 21, 1988. Contrary
to his testimony, Provenzano never spoke to John Ragas
about his December 21, 1988 trip sheet. How could he when
Provenzano himself was responsible for needlessly taking up
some of John Ragas’ worktime that day?32Is it reasonable to
expect that someone would have an employee, during
worktime, accompany him on a nonwork related matter and
then turn around and complain to the employee, in effect,
that he should have spent that time working?
Regarding John Ragas’ credibility, as pointed out by Re-
spondent, his affidavit to the Board indicates that he did not
tell Provenzano what was in the folder only that it was per-
sonal stuff; and that this was added by Ragas to the affidavit
to make it clear that he had not told Provenzano what was
allegedly in the folder. Respondent points out that when he
testified, Ragas indicated that he did tell Provenzano the con-
tents of the folder and that his memory of the event was bet-
ter in November 1989 than in February 1989. Ragas testified
as follows regarding this matter:
Q. In this statement that you gave to the counsel for
the General Counsel, I am reading from page 14 of that
statement regarding this incident. It says, ‘‘He’’ mean-
ing Pro, ‘‘said he didn’t know anything about it. He
said he was going to call and find out.’’ That is correct.
Is that right?
A. Yes.
Q. ‘‘I left and went to work. Regarding the contents
of the folder, I just said it was personal stuff. I did not
tell Pro what it was.’’
A. I did tell him. Yes.
Q. So this is wrong.
A. Well, through a conversation I had with her after,
I remembered more about it.
Q. Well, let me show you this statement because the
phrase or the statement regarding the contents of the
folder—‘‘I just said it was personal stuff. I did not tell
Pro what it was’’—is written between the line. In fact,
it was added in and initialled by you. Isn’t that right?
A. Yes.
Q. In fact, this statement was written—hand written
out by Ms. Frederick. Isn’t that right?
A. Yes.
Q. And you were given it and asked to go through
it and review it to make sure it was correct.
A. Yes.
Q. And you made some deletions to it, and you
asked that some additions be made, didn’t you? And
this was an addition that you put in to be—to make this
clear that you did not tell Pro what was in that truck
in the contents of that pouch, did you?
A. Yes. Because at the time I didn’t recall telling
him, but I did tell him.
Q. So in March of this year, two months—a month
to the day almost after it happened, you insisted that
she put it in, and now your recollection is that that was
wrong and that you did tell him. Is that what you are
telling me?
A. I did tell him. Yes.
Q. Why is your memory now better than it was a
month after it happened?
A. Because of going through it over and over.
Q. Over and Over.
A. Right. And I am recalling different incidents that
happened.
Ragas’ explanation of this change is reasonable in my opin-
ion. What one can recall when discussing a number of things
at one time may not always be as accurate as what one re-
calls when reflecting at length on one specific thing. Re-
spondent was only able to cite a few instances of alleged in-
consistencies in the testimony of Ragas. As noted, above,
there are many regarding the testimony of Provenzano.
In my opinion John Ragas mentioned the union cards to
Provenzano on February 2, 1989, Provenzano telephoned
Alleman, Alleman drove to Port Sulphur, and Alleman was
bothered enough by what Provenzano told him to pick up the
radio and call Ragas to ask him how long it was going to
be before he was going to come back to the office. John
Ragas was fired because of his union activities. The alleged
justification regarding the trip sheets is a fabrication. As
noted above, Provenzano was not a credible witness.
Alleman also is not a credible witness. He did not tell John
Ragas the day that Provenzano began working at Port Sul-
phur that Ragas would be terminated if he could not get the
work out. Provenzano never testified that he was aware of
such a warning. All of Alleman’s testimony regarding discus-
sions with John Ragas with respect to trip sheets dealing
with work prior to the end of January 1989 was fabricated.
Alleman attempted to bolster his testimony indicating that
Provenzano was there during one or two of the discussions
Alleman had with John Ragas regarding trip sheets.
Provenzano testified that he was there only once; the day
Ragas was terminated. Also, Provenzano testified that
Alleman never mentioned to him that he had a meeting with
Ragas regarding trip sheets. In my opinion, Alleman wrote
the note on the January 20, 1989 trip sheet well after January
23, 1989. It is quite reasonable for a person to mistakenly
write 1988 for the first few days of 1989. But for a person
to write 1988 for the year on January 23, 1989, is stretching
it. Provenzano did not corroborate Alleman about the January
20, 1989 trip sheet.
And finally, Koch’s testimony that Alleman previously
discussed the fact that John Ragas’ production was not ac-
ceptable cannot be credited. Koch was not a credible witness.
His testimony that he was not aware until the hearing herein
that John Ragas did not sign his application is incredible in
view of the testimony of Ragas that he told Koch before he
was hired by Respondent that he did not sign the application,
Ragas did not sign the application, how important that signa-
ture was regarding the statements applicable as set forth in
appendix A hereto, and Koch was ultimately responsible for
hiring Ragas.
920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
33 As pointed out by counsel for the General Counsel on brief, Ragas did
not assert that the applications were present that day in the coffee shop.
John Ragas was terminated for his union activity.
Provenzano, as noted below, acted as a supervisor while at
Port Sulphur. John Ragas’ testimony regarding his conversa-
tions with Provenzano dealing with Ragas’ union activity is
credited. Provenzano played a very large role in Ragas’ ter-
mination. It was Provenzano who summoned Alleman. It was
Provenzano who explained to Alleman why he had Alleman
drive to Port Sulphur. Provenzano was there when Ragas was
terminated. Respondent contends that Alleman did not know
of Ragas’ union activity. Hanforth testified that it was gen-
eral knowledge that employees of Delta engaged in orga-
nizing activities prior to the acquisition of the system by Re-
spondent. And Alleman, as noted above, sat in a small gath-
ering with Ragas in a coffee shop where Ragas explained
why because of his union affiliation he did not sign Re-
spondent’s application for employment.33 Everyone of Re-
spondent’s management witnesses who apparently were not
involved in the termination conceded that they knew of
Ragas union proclivities. As noted above, Provenzano’s story
was that he did not know about a union. He is not credited.
Both he and Alleman knew. In fact, as noted above, Ragas’
union activity was the reason he was terminated.
If the termination were not a pretext, I would find that
counsel for the General Counsel had made a prima facie case
in that she demonstrated that John Ragas engaged in union
activity, Respondent knew, and there was antiunion animus
on the part of Respondent. On the other hand, Respondent
has not shown a business justification for the termination.
Respondent has not shown that it would have terminated
John Ragas notwithstanding his union activity.
As noted above, it is alleged in the complaint that Re-
spondent threatened its employees with discharge if they
continued to engage in activities on behalf of the union. On
brief, counsel for the General Counsel contends that
Provenzano was a supervisor within the meaning of Section
2(11) of the Act in that (1) Alleman introduced him to John
Ragas and Mackey as their supervisor and told them that
whatever came through the office, paperwork, or problems,
were to go through Provenzano, (2) Provenzano gave Ragas
and Mackey their assignments on a daily basis and would
radio them on occasion to move them from one job to an-
other, (3) Provenzano sent Ragas to assist Mackey on jobs
and would give him instructions on whether to wait at a site
for a particular reason or to go on to another service call,
(4) Provenzano would tell Mackey and Ragas whether to do
service work after regular hours if a call came in just before
the end of the workday, (5) all completed forms, including
timesheets and overtime reports, were turned into Provenzano
who would review them, (6) Provenzano signed some semi-
monthly overtime reports in the same place that Alleman
signed, which according to Alleman, signified that the person
is in charge of a particular group, (7) Ragas cited two in-
stances when Provenzano himself said that he was the super-
visor, (8) Provenzano spent a considerable amount of time in
the Port Sulphur office, using the same office that Alleman
had at the facility, (9) Provenzano did not have an assigned
service territory while in Port Sulphur, he did not go out on
many service calls alone, and he did not complete trip sheets
like Ragas and Mackey, (10) Allen at one point testified that
Provenzano was sent to Port Sulphur to supervise, (11)
Provenzano admittedly used his own discretion and he did
not get on the phone every 2 minutes and call Alleman, (12)
Provenzano assigned Ragas to work in Mackey’s area on
February 1, (13) Provenzano was present when Ragas was
terminated, (14) Alleman’s position evaluation contemplates
that Alleman could have lower levels of supervision working
under him, (15) the fact that Provenzano’s position classifica-
tion was not changed during his 8-month assignment to Port
Sulphur is not dispositive, (16) the fact that Provenzano
could not hire or fire employees is not dispositive, (17) the
absence of a supervisory title is not determinative if in fact
the person possesses and exercises supervisory authority and
is held out to employees to be a supervisor, (18) the exercise
of any one of the statutory indicia is sufficient to confer su-
pervisory authority, and (19) Section 2(11) of the Act does
not require the exercise of the power but rather the existence
of the power.
Respondent, on brief, contends that Provenzano is not a
supervisor since he exercised no independent judgment con-
nected with his duties, but rather merely served as a conduit
for managerial instruction.
Alleman did not deny that on February 2, 1989, he had
to ask Provenzano about the fact that Ragas was working in
Mackey’s territory. In other words, Alleman did not have
prior knowledge of this situation. It would follow, therefore,
that if Provenzano assigned Ragas to do work in Mackey’s
territory, he did not get Alleman’s advance approval before
making the assignment. In other words, Provenzano would
have been exercising independent judgment and would not
have been merely acting as a conduit for managerial instruc-
tion. Ragas testified that Provenzano did make this assign-
ment. What is Provenzano’s story? Provenzano testified that
he did not discuss with Alleman that the Buras job was not
in Ragas’ territory and he did not know if the question of
this being outside of Ragas’ territory came up the day Ragas
was terminated. In other words, he was there when Ragas
was terminated but Provenzano would not admit to anything
which might demonstrate that he was a supervisor. Contrary
to Respondent’s assertions, Provenzano did not merely serve
as a conduit for managerial instruction. This is one example
where management outside of Port Sulphur had no idea what
was going on. Another appears to be the time Provenzano
had John Ragas accompany Provenzano when he went to see
a man about a transmission for his son’s car. This was done
during worktime. Obviously, management outside Port Sul-
phur would not have been happy with this situation, espe-
cially in view of Alleman’s assertion that he had already put
Ragas on notice that he would be terminated if he did not
straighten out and produce. Alleman is not credited regarding
this assertion. He was not a credible witness. Unlike the trip
to the excavation site where the pipe coating was damaged,
here Ragas went with Provenzano in Provenzano’s truck to
speak to the transmission man. Would he have done this dur-
ing worktime if he did not view Provenzano as a supervisor?
Would he have driven to the facility to pick up Provenzano,
pursuant to Provenzano’s instructions, and have taken him to
the above-described excavation site if he did not view
Provenzano as a supervisor? For whatever reason he may
have had, it is my opinion that Alleman did tell Ragas and
Mackey that Provenzano was their supervisor. Ragas is cred-
ited on this point. As pointed out by counsel for the General
921LOUISIANA GAS SERVICE CO.
34 Under New Horizons, interest is computed at the ‘‘short-term Federal
rate’’ for the underpayment of taxes as set forth in the 1986 amendment to
26 U.S.C. § 6621.
35 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 objec-
tions to them shall be deemed waived for all purposes.
Counsel, the exercise of any one of the statutory indicia is
sufficient to confer supervisory authority. Here Provenzano
may not have had the authority to hire or fire but he did
have and he did exercise the power to assign and direct em-
ployees. Accordingly, in my opinion Provenzano was a su-
pervisor under the Act.
As noted above, Provenzano’s absurd testimony regarding
the soup line comment is not credited. Counsel for the Gen-
eral Counsel points out on brief that in answering one of her
questions regarding an unrelated subject, Provenzano stated
that if a serviceman did not service leaks first and something
happens, ‘‘[t]hen you are in the soup.’’ It is argued that
Provenzano’s choice of words is clearly more than just a re-
markable coincidence to the alleged violative comment here-
in. Ragas is credited. When Provenzano told Ragas that if he
kept ‘‘talking that union talk . . . [he was] going to find
. . . [himself] in the soup line’’ Respondent was unlawfully
threatening Ragas that he would be terminated for engaging
in union activity.
And finally, the complaint alleges that Respondent, acting
through Hanrath, informed its employees that it would be fu-
tile for them to select the Union as their bargaining rep-
resentative. As noted above, Koch was not, in my opinion,
a credible witness. Consequently, on this matter it comes
down to whether I believe John Ragas or Hanforth. As noted
above, in my opinion Ragas is a credible witness. It would
have been one thing if Hanforth had not strayed at all from
a prepared text which he read while holding it in his hand
for all to see and he looked at it while he read it. But it is
quite something else when Hanforth himself testifies that (1)
he went beyond the prepared text when at the outset of his
talk he said that he knew of the employees prior union affili-
ation because he wanted them to know that it had no bearing
on their employment with Respondent but they needed to
know how Respondent felt about union organizing of its em-
ployees, (2) he could not recall whether he held the prepared
text in his hand as he read it, and (3) he looked at the em-
ployees as he gave his talk. On brief, counsel for the General
Counsel contends that Respondent, knowing not only of the
Union’s representation at the Delta Gas facility, but also of
the same Union’s attempt to organize two of its other facili-
ties, had a real concern that these particular employees would
organize. Ragas is credited. Hanforth’s statement that Re-
spondent never will be union, which statement was made in
a formal meeting of management representatives with em-
ployees, violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
informing employees that it would be futile for them to se-
lect the Union as their bargaining representative.
4. The Respondent violated Section 8(a)(1) of the Act by
threatening an employee with discharge if he continued to
engage in activities on behalf of the Union.
5. The Respondent violated Section 8(a)(1) and (3) of the
Act by discharging John Ragas for union activity.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that Respondent be ordered to
cease and desist therefrom and to take certain affirmative ac-
tions designed to effectuate the purposes of the Act.
Having found that Respondent discharged John Ragas in
violation of Section 8(a)(1) and (3) of the Act, it is rec-
ommended that Respondent offer John Ragas immediate and
full reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position without prejudice
to his seniority or other rights and privileges, and make him
whole for any loss of pay he may have suffered as a result
of the discrimination against him by payment to him of a
sum of money equal to that which he would have earned as
wages during the period from the date of his discharge to the
date on which Respondent offers reinstatement less net earn-
ings, if any, during said period with interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987).34
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended35
ORDER
The Respondent, Louisiana Gas Service Company, Port
Sulphur, Louisiana, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Informing employees that it would be futile for them
to select the Union as their bargaining representative.
(b) Threatening an employee with discharge if he contin-
ued to engage in activities on behalf of the Union.
(c) Discharging an employee because he has engaged in
union activities.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer John Ragas immediate and full reinstatement to
his former job or, if that job no longer exits, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings or other benefits
suffered as a result of the discrimination against him, in the
manner set forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge and notify John Ragas in writing that this has been
done and that the discharge will not be used against him in
any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
(d) Post at its facility in Port Sulphur, Louisiana, copies
of the attached notice marked ‘‘Appendix B.’’36 Copies of
the notice, on forms provided by the Regional Director for
Region 15, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable 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 Respondent has
taken to comply.
APPENDIX A
CONDITIONS OF EMPLOYMENT
I understand that if employment is afforded me at LGS,
such employment requires that I agree to conform to LGS
rules and regulations. I further understand employment and
compensation may be terminated, with or without cause, and
with or without notice, at any time, at the option of either
LGS or myself. I also understand that no representative of
LGS has the authority to enter into any agreement with me
for employment for any specified period of time, or to make
any agreement with me contrary to the foregoing.
I agree to submit myself upon request to a Pre-employ-
ment Drug Screening (urinalysis) test by a physician and/or
laboratory designated by LGS, and understand that failing to
submit to and/or pass the Pre-employment Drug Screening
test will result in my not being considered for employment
with LGS.
I agree to submit myself upon request for a physical exam-
ination by a physician designated by LGS, and understand
that failing to pass such examination will result in my not
being employed and/or retained in the service of LGS.
I hereby authorize every former employer and any person,
firm or corporation listed above as references to answer any
and all questions which may be asked by LGS concerning
me and my work, habits, character or skill or any action in
any transaction.
I declare that my answers to the questions in this applica-
tion are true to the best of my knowledge and belief, I under-
stand that any false statements appearing on this or any other
employment form will be sufficient reason not to hire me,
and if discovered after my employment, will be sufficient
reason for dismissal from the service of LGS.
Signature of Applicant lllll Date llllll