Northern Natural Gas Co.

National Labor Relations Board - Board Decisions

Aug 6, 1971

192 N.L.R.B. 549 (N.L.R.B. 1971)

NORTHERN NATURAL GAS CO. 549
Northern Natural ' Gas Company and District 118,
International Association ' of Machinists and Aero-
space Workers, AFL-CIO. Case 18-CA-3014
August 6, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On February 26, 1971, Trial Examiner 'Lloyd
Buchanan issued his Decision in the , above-entitled
proceeding, finding that, the Respondent had not
engaged, in and was-not engaging in: certain unfair
labor practices within' the, meaning of the National
Labor Relations Act, as ' amended, and recommend-
ing that the complaint be dismissed in its entirety, as
set forth in the attached' Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision and a supporting brief,
and the Respondent filed an answering brief.
Pursuant to the provisions of,Section„3(b) of the
National. Labor Relations Act, as amended, the
National Labor Relations, Board, has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner` made at the hearing and finds that no
prejudicial error was P committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's` Decision, the' exceptions and briefs; and
the entire record in the case, and hereby ' adopts the
findings, conclusions, 'and recommendations of the
Trial Examiner,
ORDER
Pursuant to, Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
edOrder of the TrialExaminer and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety. - "
TRIAL EXAMINER'S DECISION
LLOYD BucRANAN, Trial Examiner: The complaint
herein (issued November 2, 1970; charge filed June 10,
1970), as amended, alleges that the Company has violated
Section 8(aX3) of , the National Labor Relations Act, as
amended, 73 Stat. 519, by discharging Francis J. Carpenter
on or about June 9, 1970, because of his union membership
and support, and Section 8(a)(1) by said act and by
unlawfully interrogating its employees concerning their
protected concerted activities. The answer, as amended,
denies the allegations of violation and alleges that
Carpenter was discharged because of his refusal and failure
192 NLRB No. 92
to perform his responsibilities and because of repeated
misconduct.
The case was tried before me, at Boone, Iowa, on
December 17 and 18, 1970. Counsel,were heard in- oral
argument at the conclusion of the trial. Pursuant to leave
granted to all parties, briefs have been filed by the General
Counsel and the Company.
Upon the entire record, in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
I. THE COMPANY'S BUSINESS AND THE' LABOR
ORGANIZATION INVOLVED
The facts concerning the Company's status as a Delaware
corporation, the nature and extent of its business as a
public utility company, and, its engagement in commerce
within the meaning of the Act; are, admitted; I, find and
conclude accordingly. I also, find and conclude that, as
admitted, the Union is a labor organization, within the
meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Alleged Violation of Section 8(a)(l)
In January 1970, Kruse, an employee at the Company's
Ogden plant, went to the Union business office in Des
Moines, , and at that time and again in April discussed
arrangements for , a meeting with the Ogden plant
employers. Notices of this meeting appeared on plant
bulletin boards; it was referred to as a Beer Bust. The
meeting was held, on May 21 in the American Legion Hall
in Ogden, 15 to 20 employees being present .but Kruse
himself not attending. From this point on, Carpenter
played the leading role in organizational activities.,
Union authorization cards were signed at the meeting,
and Carpenter solicited and returned to the Union
additional cards both before and after his discharge on
June 9. Testimony concerning various intervening events
must be considered on the question of company knowledge
of Carpenter's union activities.'
The General Counsel's tenacity and persistence, which
might be exercised on a point with greater merit, although
they would then perhaps be unnecessary, were exemplified
as he' maintained both early and late - in the trial that
company knowledge could be found on the basis of a
conversation between Carpenter and employee Anglin.
About the middle of April, Carpenter told Anglin that the
men were dissatisfied and thought they should get a union
to help them. Bearing in mind that in 1967 and 1968; when
he had told Anglin about other union activity, the latter had,
said that he would have to report it, Carpenter now'
observed that Anglin might like to report this convetstion
also to Bacon, the- Company's area manager. At the earlier
time,, several years before, and until March 30,1969; Anglin
was a supervisor at'Ogden., The Company points out that
Anglin has since been employed at various locations as an
inspector and coordinator but as a rank-and-file employee.
With the Company's denial that he is now a supervisor, we
have no evidence of such status after March 30, 1969. We
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have no more than the General Counsel's argument, of
continuance of status in the face of Carpenter's own
testimony on 'direct examination, when he had-another
purpose, that several other employees were reduced in
status including one who,' like Anglin, had been district
superintendent and "went down" to the'lowest rank-and-
file job classification.
Beginning in April, Carpenter spoke, to Sedlacek, `the
Company's evaluation technician in charge of equipment"
planning and technical training, concerning union activity;
ands one time- offered Sedlacek a union card, which the
latter rejected. While he does not have the right to hire or
fire or otherwise directly supervise employees, it might be
inferred that Sedlacek does, have sufficient authority to
direct employees or that he works closely enough with those
in authority to impute to,the Company' his knowledge of
Carpenter's union activity. Sedlacek reports directly -"to-
Coffman, the Company's directory of technical services, on
the progress of men in training., ` `
One- might be inclined to believe that Sedlacek, actively
training' top' technicians throughout the Des Moines area,
not only reports on their progress as he'testified, but also
makes recommendations concerning them and perhaps
even effective recommendations, `in which case he would
actually'be a supervisor- within the meaning of the Act. On
the other hand, if it be inferred from this that the Company,
through Sedlacek, had early knowledge of Carpenter's
organizational activity, it may be noted' that, despite
Carpenter's conduct at a meeting on May 1, of which more
below, for which he was reprimanded by letter on May 4,
the Company 'did-not at that time discharge Carpenter.
About,May 11, Carpenter asked Supervisor Headrick for
permission to hold 'a meeting in the Company's basement
room on May 14. The allegation of interrogation is-'based'
on this- incident,' and will be considered below.' `I do not
rely on this for a" finding of company knowledge ' of
Carpenter's union activities.
Whatever weight attached to the testimony already cited
on the question of company knowledge, the Company has
approximately 50 employees in Ogden, and such knowledge
may be inferred on the basis of the "small plant" rule even
if the,extent of Carpenter's card solicitation activities at the
plant is not clear.
r , If , various witnesses at times indicated unreliability the
facts generally emerge quite clearly from the pro and con
presentation., I do not, credit the Company's denial of
knowledge of Carpenter's union , activity. Leading to a
conclusion further-, unfavorable to the Company and
arousing suspicion is, the citation .of many ,past shortcom-
ings and misdeeds on Carpenter's part with only; some oral
criticism,and.two warning letters, on March 3,1969, when
there was no union activity or apparent suspicion thereof,
and May -4, 1970„ respectively: Even the later ,letter was
submerged at the, trial by detailed- references to prior
shortcomings although in this letter-on May 4 the Company
clearly warned Carpenter of possible discharged he did not
perform his duties satisfactorily. By the'time the second
There is confusion m this connection . Employee Claussen, as we shall
see, testified to interrogation by Headrick in late April , or early May.
Carpenter testified to interrogation by District Manager Henriksen in May.
union meeting was held, on July 21, ,Carpenter w as;no
longer in the Company's employ.
The, complicated defense, not limited to events,which
immediately preceded Carpenter's` discharge and which
would themselves have justified it, made it necessary to go
into earlier incidents by way of explanation and raised the
questions of condonation or acceptance by, the Company.
To the extent that earlier incidents, testified to in detail on
both sides, are relied on to show unfair treatment of
Carpenter, they preceded his union" activity or company
knowledge thereof and show that, if 'he was "persecuted," it
was not discriminatory within the meaning of the Act. In
this` category would fall Carpenter's testimony that, early in
April,' Henriksen told him that he could not,have, the field
technician trainee job because the Company did notlike his
"attitude." Bacon had, earlier . reminded ' Henriksen that,
because of Carpenter's behavior and attitude toward
others,--he would not adequately represent the Company, to
outsiders as that job required.
His job abolished (as it was at the other plants of the
Company), Carpenter had been offered another atthe same
rate. In January. he had told another'' ' Ioyee, that hepnip
would like to have the lower paying job which theo,ther was
performing. The evidence shows that on his new job he was
thereafter both unsatisfactory and unwilling to `perform.
There-is no evidence that any other job was available and
that Carpenter was discriminatorily refused such, whether
in January or thereafter. Nor,- whatever his complaints,
could discrimination be found in any early company refusal
of an assignment.
H-ienriksen's comment early in April•concerning,Carpen-
ter's attitude was further, supported on June 1 when,,in the
face of the, former's attempt to arouse his. interest,
Carpenter replied that he was not interested in his work and
would not do,a good' job.
With this (after carpenter's threat, noted below, on June
5 with respect to employment of Negroes), ;Henriksen
testified that he had no alternative but' to terminate
Carpenter's employment. On the following Monday, June
8, he called Bacon and later 'that `day received the latter's
permission to discharge Carpenter. On the morning of June
9 -Henriksen went to Bacon's office in Des Moines, got
Carpenter's ' check, returned to Boone, and discharged
Carpenter. I -
The attempts to excuse or justify Carpenter's poor
performance in the face-of his admitted, lack of interest
were patently insufficient. Accepting the testimony by
Floyd, the Company's evaluation engineer, I do not rely on
the hearsay memorandum of June 5 (which was not offered
or received or shown to have come to the attention of
Henriksen or,Bacon by June 9) by one who the Company
claims is not a supervisor.
To recite other incidents and events would be merely to
describe Carptenter's consistentand complete self-luxation,
which was formalized on June 9.
The,very record of never having discharged an employee,
cited by the General- Counsel, suggests a, company, attitude
which wasreflectedin the patient acceptance of Carpenter's
Headrick testified to such a conversation with Claussen and Carpenter im
May.. The allegation is of interrogation of employees in April by 'Headricl :
NORTHERN NATURAL GAS CO. 551
shortcomings., Thus, in, addition to reference to a May 1
safety meeting which prompted the letter of May 4, we
heard about . an occasion in January when Carpenter
presumed to cut a sling which other employees had just
used and laid aside. The General Counsel conjured up a
picture of dire results if the sling were used again, and
sought to justify Carpenter's action by reference to a
possible; accident. Indeed several times atthe trial reference
was made to - a, fatal earlier accident ; - but as finally
explained; that was in no way related to the situation before
us but had 2 years before been connected with the work of
an independent contractor.
What the General Counsel has labeled "courageous" and
indicative of leadership was aggressive and presumptuous.
On an assumption that the men on the job were
incompetent or might otherwise use the sling again,
Carpenter could in the spirit of helpfulness, certainly not in
a "take charge" manner, have spoken to employees
Westberg or Landals, who were working on that job. There
is no suggestion that these latter would have willfully risked
injury or thatitwould have been nesessary for Carpenter to
report the matter , to his supervisor on their failure to act. If
this was "in accordance with recommended practice," it
had -nowhere been recommended that Carpenter do it.
Clearly anything but self-effacing, Carpenter asserted
authority which he did not have and took action beyond his
authority.,ne good faithwhich the General Counsel would
put on that action was obliterated by the unnecessary
assertiveness which Carpenter displayed. It-is, and should
have been to him were he concerned with others,
understandable that Westberg, submitting to his own
supervisor, resented an intrusion by a fellow worker as here
occurred. Testifying in Carpenter's behalf, Landaals told us
that Carpenter "came along and cut the strap." Carpenter
assumed the prerogative of action. Whatever words were
uttered followed the act as an argument ensued between
Carpenter and Westberg. Capable of doing a good
mechanical or technical job, Carpenter was assertive to the
point of brashness.2 With so much made of it at the trial,
this cited incident can at most portray Carpenter's manner
generally. Henriksen denied knowledge of it: it did not
prompt or lead to the discharge.
Again, Carpenter was a good mechanic. But he exhibited
an aggravating fascination for other people's affairs and a
tectonic tendency to impose his own sense of afflatus.
Regardless of the feelings of those with whom he worked,
Carpenter took charge and was militant to the point that he
could not be entrusted with the authority which he
assumed. The Company's offer of the job of engine
technician is quite understandable, considering Carpenter's
mechanical and personal qualifications.
If not acted upon until matters came to a head
nondiscriminatorily, any earlier instances of officious and
disruptive conduct of which the Company was aware
remained reasons . There was no shifting of reasons or
2 The record includes reference to several other instances : One when he
charged brown-nosing to an employee with whom he had no close
relationship ; another when he replied in kind but aggessively to Bacon; a
third when he prompted employee Wingfield to complain about
Carpenter's interfering with his handling of certain controls.
3 I do not rely on hearsay testimony that other employees complained
concerning Carpenter's conduct, Henriksen not having checked such
position by the Company even if citation of so many earlier
facts beclouded and complicated the issue : with ,those
earlier reasons as background , an employer reluctant--to
take such action was moved by later -events to discharge
Carpenter.
Whatever sufficient and nondiscriminatory reason the
Company may have had for discharging Carpenter earlier,
and although it has assigned him to another job and,sought
to persuade him to remain at it , a new and very important
element was added on Friday, June 5. Leaving aside all
equivocal factors , and arguments, it appears that, with
adequate valid reason to discharge Carpenter and matters
coming to a head as he failed to perform adequately the job
fairly assigned to him, the triggering factor was on that day,
injected when the Company indicated its intent to abide by:
the law and an Executive order issued from the_ White
House - Carpenter was not engaged in protected concerted
activity when he announced that he would not allow the,
Company to' bring Negroes into Ogden , if it did, he:would
see to it that its taxes were-increased .-This was hitting the
Company in a most vulnerable , spot, andwith a weapon or,
threat which assumed prior illegality with 44pect to taxes
or threatened such for the ,future . Whatever, Carpenter's
earlier shortcomings,3 he was now clearly insubordinate
and offensive.
We thus have evidence of a new and compelling reason
for discharge based on Carpenter's performance and
expressed attitude toward his work ; and furtherreason in
his racial threat, to which a response (not so claimed.by the
Company although it is embraced .generally in the charges
of offensive behavior and insubordination) of discharge
could hardly be called discriminatory.. -
If the Company, unwarrantly fearful of consequences,
falsely denied early knowledge of Carpenter's union
activity, that would indeed serve to cast suspicion on its
other testimony and its position on the issues. But its
reluctance to discharge and its failure to do so because of
Carpenter's poor work after knowledge could be inferred
(as it would be under the small plant rule) on the basis of
the May 14 meeting and perhaps of earlier events
counterbalances such suspicion ; and Carpenter's indicated
refusal on June 1 to perform his work properly followed by
his threat on June 5 warranted and virtually compelled his
discharge. I credit the testimony that Carpenter's offensive
behavior and refusal to perform his work alone caused the
Company to terminate his employment.
Carpenter's offensiveness to other employees was not in
fact a reason for his discharge. It did lead to the Company's
refusal to assign him to a job which he preferred. But that
decision was communicated to him as early as April 4, as he
himself testified, and antedated his union activity and
company knowledge thereof.4 It intrudes on our considera-
tion to the extent that, because he was dissatisfied, it
contributed to his failure to do his work properly . To that
point there was no unlawful discrimination . With his stated
complaints.
4 It may be noted that it is not even charged that at any time after
union activities commenced and knowledge could be inferred, either before
or after Carpenter's discharge, the Company otherwise unlawfully
discouraged union support or interfered with employees . If proclivity to
violate be elsewhere deemed relevant , the history here and contemporane-
ous events suggest a contrary conclusion.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal on June 1 to perform, itself insubordinate and
offensive, and his threat on June 5, he offered full
provocation wholly, aside from and without any back-
ground or secondary cause connected with union activity.
I find and conclude that Carpenter's discharge was not
discriminatory., This is aside from his refusal toaaccept'the
engine techinician , job. As for failure to place ;him
elsewhere, there is no evidence of another available job and
discriminatory refusal to assign him.
B. The Alleged ,Independent Violation of Section
8(a)(1)
Claussen testified that in the latter part of April or the
first part of May, a few days before the meeting in the plant
basement room, Headrick asked him who had set up the
meeting and whether Carpenter or he, himself had done it.
Claussen's reply was that the men had themselves decided
to have'' a 'meting ; he denied that either Carpenter or he
had 'init'iated it: Carpenter testified that about May 14 he
asked Henriksen 'for permission to use the basement room
for a meeting of employees, and'that when Henriksen asked
what the meeting would be about; he replied that it would
be "Just a, "bitching session." Headrick testified that on May
11 both''Carpenter and Claussen spoke to him about using
the basement room, that he asked what problems the men
had, and, that Claussen replied that one problem was
communication;'and that Carpenter also suggested that the
supervisors not attend but that they be` available for
questions later.
Such 'a-meeting did'not indicate, organizational activity
which 'the Company might oppose. On the contrary
problems and that he welcomed the opportunity to talk to
the men and answer their questions as,-,had, been done:
before. Whatever reward is merited by counsel's-assiduous=
ness in scraping , up this item,- the inclusion .of such °an
allegation warrants none. There was certainly no- suggestion
that this meeting was connected, with organizational,
activities, and Headrick cannot be found to have interfered
with,such activities., Indeed both Headrick and Henriksen,
who ,granted permission for use.of the meeting room, had
encouraged such meetings and subsequent discussion
between the employees and management., Whatever the
dates and the principals involved, no`violation`has here
been shown.
No more indicative of an improper' inquiry was
Andersen's questions to Carpenter with respect,to the May-
21 meeting, ". . what we was going to have.,at the
meeting„' with Carpenter's reply, that,they were going to
have coldcuts and beer. Telling Andersen that her was
welcome to attend, Carpenter allegedly added that a: union'
representative would be- there. Carpenter: appeared at this
point to add this -last -by way clinching the element of
company knowledge, and I find ;this-bit of his testimony. as r
unreliable as the Company's denial of knowledge of, union
activity. With,-this comment on.his credibility, there is no
need to recite Carpenter's pitiful attempts torexplain other
untoward remarks. " - '
Upon .the foregoing findings of- fact,,; conclusions of law,
and the entire record, and pursuant to Section 10(c) of the.
Act, I hereby issue the-following recommended: _
ORDER,
Headrick testified that it' was his responsiblity to check The complaint is dismissed in its entire
S Several instances , of alleged interrogation are urged in the General
Counsel's brief,although they were neither alleged nor litigated.