Northwest Propane Co., Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1972

197 N.L.R.B. 506 (N.L.R.B. 1972)

506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Northwest Propane Co ., Inc. and Local 614, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and Vera
Boudrie. Cases 7-CA-8790 and 7-CA-8790(2)
June 14, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On January 31, 1972, Trial Examiner Arthur M.
Goldberg issued the attached Decision in this
proceeding. Thereafter, both the General Counsel
and the Respondent filed exceptions and supporting
briefs, and the Respondent also filed a brief in
answer to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.'
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-
ed Order of the Trial Examiner and hereby orders
that the Respondent, Northwest Propane Co., Inc.,
its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's recom-
mended Order.
1 Chairman Miller dissents only with respect to the 8(a)(3) allegations of
the complaint with respect to employee Tobias He would dismiss them on
the ground that the proof of Respondent's knowledge of Tobias' union
activity is insufficient The Trial Examiner relies , for this purpose, on an
incident during which Respondent's owner and president was standing at or
near a window in his office and Tobias was in the back seat of an
automobile parked 150 feet away The "Union activity" alleged to have
been engaged in by Tobias at this time and alleged to have been both
observable and observed was that he called and waved to a union organizer
from his position inside, and in the back seat of, the car Chairman Miller
believes this to be too fragile and inferential a basis to support a finding of
knowledge by Respondent that Tobias was engaging in union activity
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ARTHUR M. GOLDBERG, Trial Examiner: Pursuant to an
Order Consolidating Cases, Complaint and Notice of
Hearing issued by the Regional Director for Region 7 of
the National Labor Relations Board (herein called the
Board) on July 29, 1971,' hearing was held in Detroit,
1 Unless otherwise indicated all dates hereinafter were in 1971
Michigan , on October 26 through 28 on complaint
allegations that Northwest Propane Co ., Inc. (hereinafter
called Northwest , Respondent or the Company), had
violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended (herein called the Act).
The complaint , based on charges filed on June 21 in
Case 7-CA-8790 by Local 614, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of
America (herein called the Teamsters or the Union), and
on July 8 in Case 7-CA-8790(2) by Vera Boudne, an
individual (hereinafter called Boudrie ), alleged that on
various dates the Company discharged employees Larry
Myers, Jeffrey Wright, Jack Tobias and Boudrie because
of their union activities and other concerted activities. As
well, the Company was alleged to have engaged in two
independent acts of interference , coercion or restraint of
employee protected activities . Respondent 's answer denied
all of the material allegations of the complaint.
All parties participated in the hearing and were afforded
full opportunity to be heard , to introduce evidence, to
examine and cross-examine witnesses , to present oral
argument and to file briefs. General Counsel and the
Respondent presented oral argument at the close of the
hearing and the Respondent filed a brief.
Upon the entire record in the case , my reading of the
Respondent 's brief and the oral arguments of the parties,
and from my observation of the witnesses and their
demeanor , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Northwest Propane Co., Inc., a Michigan corporation,
maintains its • only office and place of business on
Northwestern Highway in the city of Farmington, Michi-
gan, where it is engaged in the retail and wholesale sale and
distribution of propane gas and related products. During a
representative 12-month period the Respondent, in the
course and conduct of its business operations, derived a
gross revenue in excess of $500,000 and purchased and
caused to be transported and delivered to its Farmington,
Michigan, place of business, goods and materials valued in
excess of $10,000, which goods and materials were
transported and delivered to said Farmington facility
directly from points located outside the State of Michigan.
The complaint alleged, Respondent's answer as amended
at the hearing admitted, and I find that the Company is
now and has been at all times material herein an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act and meets the Board's standards for
assertion of its jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
Local 614, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of America, is
and has been at all times material herein a labor
organization within the meaning of Section 2(5) of the Act.
197 NLRB No. 87
NORTHWEST PROPANE CO., INC. 507
in. THE UNFAIR LABOR PRACTICES employees worked and when they would be returning to
A. The Company's Premises and Operations
The Company's premises are located on the southwest-
ern side of Northwestern Highway.2 Northwestern High-
way runs in a northwest-southeast direction and is a
divided highway with a center island in which a number of
crossovers are placed so that traffic can switch direction.
Starting at the northwest corner of the Company's property
is a one-story office building facing directly north. The
front of the office building is primarily of glass. On the
eastern side of the office building are two private offices,
the northern office being that of Raymond Barget, owner
and president of Respondent, with a window looking out
to the east. Directly to the east of the office building is a
driveway from Northwestern Highway which runs past the
office building and into the yard area where the Compa-
ny's loading dock and storage tanks are located. Approxi-
mately due north of the office building and driveway is one
of the crossovers over the center island of Northwestern
Highway. To the southeast of the driveway heretofore
described is an undeveloped area which terminates in a
second driveway from Northwestern Highway into the
Company's property. Directly across from this southern
driveway is a second crossover cutting through the center
island of Northwestern Highway.
The Company's business consists of delivering propane
gas to commercial and residential users. The propane gas is
delivered either in bulk by tank trucks and pumped into
tanks at the customer's premises or in cylinders of various
weights which are attached to the customer's premises and
fed into the appliances using the propane. The Respon-
dent's business is seasonal in nature and Company
President Barget estimated that some 60 percent of the
Company's business is transacted in the 5 months starting
in November and ending at the end of March. According-
ly, the Company's employment has traditionally expanded
during the November to March period and contracted
during the remaining 7 months when fewer drivers are
needed to make deliveries to customers.
B. The Organizing Campaign and
Company Knowledge
Emidio M. Gentile, the Union's organizer, testified that
on May 11 or 12 he received a telephone call from
company employee Fred Kolberg stating that the employ-
ees were interested in joining the Union. At Kolberg's
request Gentile explained the organizing procedure which
he would follow. Kolberg asked that the Union not send a
demand for recognition to the Company as Gentile stated
he intended to do after securing a sufficient number of
authorization cards. During the same conversation Kol-
berg asked that Gentile explain the procedure to another
employee who was present with Kolberg when he made the
telephone call. As well, Gentile was told the hours the
2 See Appendix A attached consisting of a diagram of the Company's
premises
1 Ingman's putative supervisory status is discussed and analyzed below
in sec 111,C
4 Boudrie's discharge by the Company is at issue in these proceedings
5 The Company's terminations of Tobias and Myers are at issue in these
the Company's premises. Gentile advised Kolberg that he
would be at Respondent's property the following day, May
13, to handbill and solicit authorization cards.
Gentile arrived at the Company's premises at approxi-
mately 4 p.m. on May 13 and was there for "roughly" an
'hour and 40 minutes leaving at approximately 5:40 p.m.
During the time that Gentile was handbilling at the
Company's premises he was wearing a bright blue jacket
on the back of which the word "Teamsters" appears in
gold letters and on the left front side in blue and gold
appears the Union's emblem with the words "Local 614"
written out. During most of the time that Gentile was at
the Company's premises on May 13 he stationed himself at
the more northern of the two driveways leading into the
property waiting for workers to drive in with their trucks so
that he could hand them union literature. During this
period Kolberg came to Gentile and stated that "the boss"
wanted a copy of the union literature. Gentile gave
Kolberg copies of the material and Kolberg returned to the
company office.
Gentile testified that while he was at the Company's
premises on May 13 Company President Barget drove into
the property, parked his car on the driveway adjacent to
the office building, turned in Gentile's direction and then
went into the office. Gentile did not see Barget again that
day.
Gentile testified that while he was handbilling Shirley
Ingman, Respondent's office manager,3 came into the
driveway from behind the office building, looked at
Gentile, paused for a moment and then went back in.
Vera Boudrie' testified that she was working in the back
office on May 13. However, her duties required her to go
out into the front office from time to time. She stated that
while in the front office she observed both Barget and
Ingman looking out the window at Gentile. Boudrie
testified that she observed Ingman looking at Gentile
through the window in Barget's office on the east side of
the building and had seen Barget observing Gentile
through the front window of the office building. Boudrie
recalled Ingman saying that she wondered what the union
man wanted. Boudrie was certain that Ingman had used
the word "union." During this time when driver Paul
Goble came in Ingman said something to the effect that
the union man should be hit and dragged. Boudrie testified
that Barget was present when Ingman made that state-
ment.
Jack Tobias and Larry J. Myers, former company
employees,5 testified that while seated in Myers' car parked
on the crossover facing the southern driveway into the
Company's premises, approximately 150 feet from the
office building, they observed Barget standing in his office
window facing in a southern direction where Gentile had
stationed himself and Myers' car was parked.6
After Gentile left the Company's premises at about 5:40
p.m., he went to a local restaurant where a meeting had
proceedings
6 Myers' and Tobias' testimony as to Barget's being in the window and
thus observing both Gentile and the car in which they were seated was
introduced by General Counsel to establish company knowledge of the
employees' interest in the Union on the date proceeding Myers' termination
This testimony is analyzed below in the section of this decision dealing with
(Continued)
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been arranged with a number of the employees including
Kolberg, Myers, Tobias, Yerex, Petrie and Ellerholtz. All
of the employees signed union, authorization cards and
Tobias took a union card which he said would be signed by
his stepson, Jeffrey Wright, who was not at the meeting
and had not been at work on May 13.
Gentile did not return to the Company's premises after'
May 13.
Company President Barget testified that he left the
Respondent's premises on May 13 at about 10 a.m., went
to Lansing, Michigan, for a meeting and did not return to
the office until approximately 5 p.m. Barget stated that
when he returned to the Company at that time he parked at
his normal place and went into his office to catch up on his
paperwork. Barget testified that he did not notice anything
unusual when he came back to his office, that he would
have to say that he did not see Gentile when he drove into
the premises, and that the blinds on his office window had
been closed all day, were not opened when he returned late
in the afternoon and he did not look out the window at any
activities taking place on the driveway or on Northwestern
Highway. Barget stated that Ingman was still in the office
when he returned and that while he "probably" had a
conversation with her she did not mention anything about
Union Organizer Gentile. Barget stated that he was not
handed any union literature on May 13 nor was there any
discussion with anyone about the Union or the organizing
activities. Barget was not certain when he first heard about
the Union, stating that it could have been on Friday, May
14, Saturday, May 15, or Monday, May 17. Barget recalled
that he received his first notice of the Union's interest in
the Company's employees by mail which was delivered
that Saturday or Monday. During cross-examination
Barget was shown his pretrial affidavit in which he had
stated, "Somewhere around the 14th of May I saw a man
standing in front of the plant from my office." The
affidavit went on to state that Barget did not know what
the man was doing there and he did not see or know at that
time that the individual was passing out literature for the
Union. However, there is a further statement in Barget's
affidavit reading, "-I don't remember when-either Paul
Goble or Ralph Hagedorn told me that this was a union
man out in front." At the instant hearing Barget testified
that he could not recall this happening.
Shirley Ingman testified that May 13 was her birthday
and she had been in a hurry to get home that day, leaving
between 5 and 5:30 p.m. Ingman testified that she did not
see Gentile at the plant on May 13, had no conversation
with Barget that day and had not discussed the Union with
anyone on May 13. Ingman claimed to have first learned
about the Union's organizing campaign when a notice
from the Board was posted in Respondent's office
sometime between May 17 and May 19. Ingman stated
that she spoke to no one about the Union prior to the
posting of the notice. During her cross-examination
Ingman was shown her pretrial affidavit in which the
following appears, "When the union man was here on May
13, 1971, I was unaware that he was out in front of the
plant. I first found out about the union man being out
This testimony is analyzed below in the section of this decision dealing with
the terminations of Myers and Larry Wright , sec. III, D
front at around 5 p.m. on that day from Win Goble and
Vera Boudrie." When this statement from her affidavit was
read to Ingman she testified, "That's a mistake, sir."
I do not credit Barget's and Ingman's claims that they
were unaware of union activity or Gentile's presence at the
Company's premises on May 13. The denials of such
knowledge during their testimony at the hearing herein is
in conflict with the statements contained in their affidavits
given during the investigatory stages of this proceeding.
Gentile gave credible testimony that Barget arrived back at
the plant while Gentile, wearing his loud Teamsters jacket,
was carrying out his organizing activities. Vera Boudrie,
who created a favorable and credible impression during
her appearance as a witness, testified that there was
unusual activity in the office while Gentile was carrying
out his organizing activity. Thus, Boudrie testified that
both Barget and Ingman on numerous occasions went to
windows so that they could observe Gentile, Ingman made
statements indicating that she was aware of Gentile's union
affiliation and that Barget was present when Ingman made
those comments. Further, based upon their demeanor
while testifying I would not credit Barget or Ingman in any
particular unless they were corroborated by a credited
witness. In this instance such corroboration is lacking.
Thus, I find that during the time Gentile was carrying out
his organizing activities at the Company's premises on May
13 the Company was aware of his presence and activities
and that those activities were kept under surveillance by
Barget and Ingman.
C. Shirley Ingman 's Supervisory Status
The putative supervisory status of Shirley Ingman, a 12-
year employee of the Company, is in dispute. General
Counsel urges a finding that Ingman is a supervisor within
the meaning of the Act whereas in this proceeding the
Company claims that she does not exercise supervisory
authority. However, in the hearing held June 1 on the
Union's petition for election? Company President Barget
testified as follows:
Q. We have drivers, servicemen and dockmen.
Who supervises their work?
A. [Barget] Mrs. Ingman and myself.
Q. What is Mrs. Ingman 's title?
A. Office manager.
At another point Barget was asked:
Q. With the exception of yourself and Mrs. Ingman
is there anyone that you would classify as supervisors?
A. No sir.
Q. Does anyone other than yourself have the
power to hire employees?
A. Mrs. Ingman has hired when I have been out of
town.
Q. Does anyone other than yourself have the
power to fire employees?
A. Mrs. Ingman has done the same.
In this proceeding Barget, under oath, as he had been in
the representation case, testified that there were no titles at
the Company, that only he had the authority to discharge
7 Case 7-RC-10566
NORTHWEST PROPANE CO., INC. 509
an employee and had not delegated this authority to
anyone else and that while an applicant for employment
might be interviewed by someone other than himself it was
he who makes the final decision to hire an applicant. In the
instant preceeding Barget testified specifically that Ingman
did not have the power to hire. He stated that he could not
recall anyone being hired or fired without his authoriza-
tion.
David L. Horton , Vera Boudrie's son who is presently
employed by the Sheriff's Department of Livingston
County, Michigan , testified that he had worked in the
Company's office in the fall of 1970 answering the phone
and helping with the billing . Horton testified that he did
not speak to Barget about employment before starting to
work at Northwest Propane and that it was Ingman who
had informed him that he was hired . Additionally, Horton
testified that he had made arrangements with Ingman to
leave at times other than the regular hours of work so that
he could attend school . Ingman had approved this revised
schedule of hours. Ingman testified that she did not talk to
Horton when he came to the Company seeking employ-
ment . Rather , she testified , Horton went in and talked to
Barget . Horton impressed me as a credible witness who
was telling the facts without embellishment as he recalled
them. Ingman on the other hand throughout her appear-
ance on the stand gave the impression of testifying for
effect .. She did not inspire confidence in the veracity of her
testimony . Accordingly , I credit Horton 's testimony that he
had been employed for the Company by Ingman without
any meeting with Company President Barget.
Vera Boudrie testified that when she was hired by the
Company in either 1966 or 1967 she had been hired by
Ingman . Boudrie testified that she did not speak to Barget
before Ingman informed her that she was to be employed.
Boudrie testified about the hiring of an office employee
named Betty Rose . Boudrie was present when Rose was
hired by Ingman who informed Boudne , "This is our new
girl. She is going to work for us."
Boudne testified that on a number of occasions she had
asked Company President Barget for instructions and he
told her to see Ingman , because "She was the manager."
Larry Myers, a discharged employee , testified that when
he wanted to leave work early he had to ask permission to
do so from Ingman . It was she who granted such requests.
Myers recalled that on a number of occasions when he
sought to leave work early Ingman had told him she would
have to check if there was anything she wanted him to do
and that later she gave him'permission to leave.8
Boudne testified that when she sought time off in
advance she would speak to Ingman about such a request
and to no one else.
On occasion , Ingman signs checks for the Company,
including payroll checks . Barget explained that when he
goes on vacation he sends an authorization to the bank
under which Ingman or his brother sign company checks
while he is away.
8 As to the circumstances under which Myers came to work for the
Respondent, Company President Barget, at the representation case hearing,
testified as follows
Q Did you hire [Myers ]9
A I don't know whether I did or Mrs. Ingman
Sec 2(11) of the Act provides "The term 'supervisor' means any
In sum, the record establishes that Ingman exercises a
number of the indicia of supervisory status set forth in
Section 2(11) of the Act.9 Thus, apart from Barget's
admissions at the representation hearing that Ingman is a
supervisor, can hire and fire, may have been the one who
hired Larry Myers and carries the title of office manager,
the credited testimony establishes that Ingman hired Vera
Boudrie, David Horton and Betty Rose . Further, the
evidence establishes that Ingman has the power to excuse
employees from work, as testified to by Horton, Boudne
and Myers and is responsible for the direction of
employees as evidenced by Barget's instructions to Boudrie
that she was to look to Ingman for her instructions.
Accordingly, I conclude that at all times material herein
Shirley Ingman was a supervisor within the meaning of the
Act.
D. The Terminations of Jeffrey Wright and
Larry Myers
1. Jeffrey J. Wright
Wright, Jack Tobias' stepson, was hired by the Respon-
dent in the middle of July 1970 as a dockhand loading
trucks and filling cylinders with propane gas. When he was
first employed, Wright was under the impression that his
tenure was to last only as long as Leonard Petrie, the
regular dockman, was on vacation. However, on the Friday
before Petrie's return* from his vacation Shirley Ingman
advised Wright that he had a full-time job with the
Company.
On several occasions during his employment, Wright
went out with truckdrivers as a helper in the loading and
unloading of the cylinders of propane gas.
Wright was not at work on May 13 when Gentile, the
union organizer, handbilled at the Company's premises.
Wright did not attend the meeting between Gentile and a
group of employees held at a local restaurant after working
hours on May 13. That evening Tobias solicited Wright's
signature to a union authorization card. Wright testified
that on Friday, May 14, he "probably" told everyone he
knew was for the Union that he had signed an authoriza-
tion card. Wright specifically testified that he had told
Petrie that he had signed a card for the Teamsters.
However, Petrie testified that on May 14 he had been out
on a truck during the day and was not on the dock until the
evening. Therefore, Petrie stated that Wright could not
have told him about his affiliation with the Union until
some time in the evening because Petrie was not on the
Company's premises during the day.
On May 14, after Myers had come out to the dock and
informed the men that he had been laid off, Shirley
Ingman asked Wright to take a count of all the 100-pound
cylinders. Wright took the count and went to the office
where he informed Ingman of the number of cylinders.
Ingman told Wright to give the figures to Barget. Wright
individual having authority, in the interest of the employer, to hire, transfer,
suspend, lay off, recall , promote, discharge , assign, reward, or discipline
other employees, or responsibly to direct them, or to adjust their grievances,
or effectively to recommend such action , if in connection with the foregoing
the exercise of such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment "
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went to Barget's office, gave the company president the
count of cylinders and at that time Barget told Wright that
he was being laid off. Wright made no comment, clocked
out and left. Barget advised Wright that the layoff was
because of a lack of work.
Leonard Petrie, the regular dockman, testified that
following Wright's termination Bruce Barget, Company
President Barget's high. chool student son, helped out on
the dock, starting work about a week or 2 after Wright was
laid off. Petrie recalled that Bruce Barget had worked "just
about all summer" before returning to school, performing
the same kind of work as did Petrie, moving and filling
tanks and loading trucks. In addition, Bruce Barget cut the
grass and picked up "stuff" around the working area. On
cross-examination Petrie stated that Bruce Barget had
worked at the Company for a few weeks during that
summer, left and then came back. Petrie stated that Bruce
Barget had worked 3 days in some weeks and on occasion
a half day on Saturdays.
However, Petrie testified that since Bruce Barget
returned to high school no one had been assigned to work
with him on the dock on a regular basis. Further, Petrie
stated that he has not always had a regular helper on the
dock during the summer.
Company President Barget testified that his son, now age
17, had worked for the Company for the 3 years preceding
the hearing herein. During 1971, following Wright's
termination, Barget recalled that his son had worked for 1
week in June, had been away for the following 2 weeks,
returned for 3 or 4 weeks to work on the dock and then had
left with the family for a vacation before returning to
school.
I find, based upon Petrie's credited testimony as he
corroborates Barget, that although Bruce Barget worked
from time to time during the summer, the Company did
not replace Wright on the dock.10
2. Larry J. Myers
Larry Myers was employed by the Company as truckdriv-
jer from January 18 until his discharge on May 14. Myers
testified that at one time or another during his employment
he drove every type of truck utilized by the Company in its
operations.
There was conflicting testimony as to whether, because
of a weak left hand, Myers was capable of handling every
run which the Company had in the delivery of various
types of containers in which the propane gas is used by its
customers. Barget testified that when he hired Myers he
was not aware of the weak left hand. Barget sent Myers out
on a tractor-trailor for a period with the former driver who
reported back that although Myers could drive the truck he
could not handle the industrial cylinders which were
delivered on that run because of his weak hand. Barget
explained that the driver is expected to use each hand to
drag a cylinder and that Myers could only handle one
cylinder at a time because of insufficient strength in his left
10 Company records show that to the time of the hearing herein there
had been no replacement hired for Wright
ti This account of the April incident is based upon a synthesis of the
testimony of Myers and Barget who corroborated each other on this point
12 This conversation was testified to by Tobias, Myers, and Boudne
hand. Barget testified that following this he hired Kolberg
to drive the tractor-trailor. Kolberg held that job until he
quit in July. Employee James A. Yerex testified that Barget
had asked him to make a run with Myers to see if Myers
could handle the job and that he had reported back to the
company president that he thought Myers did all right.
Barget testified that following his discovery of Myers'
infirmity he put Myers on a run where the truck used had a
powerlift in the rear to help the driver load and unload the
100-pound cylinders. Myers confirmed that he had been
told by Barget he had not been assigned to the semitruck
run because of Barget's concern that Myers might not be
able to handle that assignment because of his defective left
hand.
Sometime in April, Myers spoke to Shirley Ingman about
a raise and she directed him to Barget. Barget told Myers
that he did not know if he could give Myers a raise
"because [he was] even thinking of laying a couple of guys
off."
Barget and Myers discussed what other work Myers
could do and Barget made at least one telephone call to
another employer seeking work for Myers.ii
Sometime about May I, Myers asked Ingman and Barget
what the prospects were for his keeping his job in view of
the coming seasonal slowdown. Both company officials
advised Myers that they believed that Kolberg would be
leaving the Company and that Myers would be staying.12
Tobias added to the conversation as testified to by Myers
and Boudrie claiming that Ingman had said Kolberg would
be leaving because of his reputation of being rough on
trucks. Tobias recounted two incidents in which Kolberg
had allegedly damaged company vehicles by improper
handling of the equipment. Neither Boudrie nor Myers
referred to such comments about Kolberg's driving
abilities.
At about 4 p.m. on May 14, when Myers went into the
company office to pick up his paycheck, Ingman told him
to see Barget. Barget gave Myers his paycheck and then
laid him off saying that business had slowed down and the
Company could not use his services. Myers asked why the
Company did not lay off Kolberg instead since Myers had
been working for several weeks longer. Myers claimed that
Barget replied that Kolberg was a better driver. Barget
testified that the reason he gave Myers for the layoff was
an insufficient amount of work to keep the full crew
working.
E. The Alleged Illegality of the Terminations
The consolidated complaint alleged 13 that Myers and
Wright were discharged "because of their activities on
behalf of, and adherence to the Union and because they
engaged in other concerted activities for the purpose of
collective bargaining and other mutual aid and protec-
tion."
The Company's knowledge of Myers' union activity is
supposedly derived from the incident when, on May 13
Boudne testified that Barget had stated at that time "I think Kolberg is
going to quit , so I think we will be able to keep you on ." Neither Barget nor
Ingman referred to this conversation during their testimony
i3 Par. 10
NORTHWEST PROPANE CO., INC. 511
while Gentile was handbilling at the plant, Myers, Tobias
and Kolberg left the company premises in Myers' 1967
white Mustang and after driving south on Northwestern
Highway reversed direction and crossed the highway
stopping on the crossover approximately 150 feet from the
company office. At that time Myers blew the horn,
Kolberg seated next to Myers on the passenger side of the
front seat waved his hand and called to Gentile while
Tobias sitting in the right hand passenger seat in the back
of the car also called and waved to Gentile. Tobias and
Myers testified that at that time they saw Barget standing
in his office window in the Company's office building.
Myers testified to an incident shortly after he was hired
when he parked his car in the wrong place and Barget
spoke to him about the proper area for employees to park.
Thus, Barget allegedly was aware of the identity of the
owner of the automobile parked on the crossover on May
13.
Under all the circumstances, I do not find this evidence
of company knowledge of Myers' union adherence of
sufficient weight to infer that he was selected for
termination because of his union activity. Accepting as a
fact that Barget was standing at his window at the time that
Myers' car was parked on the crossover, Barget could more
clearly see that Kolberg and Tobias were waving to
Gentile. While the failure of an employer to terminate all
employees involved in union activity does not establish
that the discharge of one was not unlawful, the evidence
presented by General Counsel as to Kolberg's alleged
deliquency as a driver would have served the Respondent
as a basis for terminating him as well if it sought to rid
itself of union adherents. All things considered, the
uncontradicted testimony that the Company in years past
had pared its working force at approximately the time of
Myers' and Wright's terminations , the fact that Myers was
not physically capable of performing as much or as
satisfactory a job as other drivers, that he had been advised
some time in April that his employment would not be
continued through the upcoming slow business season, and
that the Company did not replace him, I am impelled to
find the General Counsel has not sustained his burden of
establishing that Myers' discharge violated Section 8(a)(3)
of the Act.
As to Wright, there is not a scintilla of evidence in the
record which would link his selection for layoff to any
union activity on his part or company suspicion of such
union activity. Wright's union activity was limited to
signing a card in his home the night prior to his
termination and there is no evidence that Respondent
knew he had done so. The evidence establishes that the
Company did not replace Wright after his termination and
that while Company President Barget's son did from time
to time during the summer of 1971 perform the type of
tasks which Wright had been employed to do, he had been
similarly employed for 3 years, including 1971. Thus, the
only support for a finding that Wright was terminated in
violation of Section 8(a)(3) of the Act is the timing of his
termination 1 day after Gentile's appearance at the
Company's premises. However, it would require a string of
inferences to find that the General Counsel has sustained
his burden of establishing that Wright's selection for layoff
for lack of work on May 14 was tainted by unlawful
motivation.
F. The Discharge of Jack Tobias
Jack Tobias was employed by the Respondent as a driver
from 1967 until his discharge on May 25 on the grounds
that he had stolen a 100-pound cylinder of propane gas
from the Company. During most of his employment
Tobias delivered domestic 100-pound cylinders of propane
gas, installed the cylinders at the customers ' premises and
removed and returned the empty tanks to the Company.
Domestic users use cylinders of propane gas for cooking,
hot water and on occasion for heating purposes.
As earlier noted, on May 13 Tobias was in the back seat
of Myers' car when the vehicle was parked on the crossover
on Northwestern Highway approximately 150 feet from the
company office and the occupants of the car waved and
called to Gentile , seeking to attract his attention, while
Gentile was handbilling at the Company's premises. Myers
and Tobias testified that they saw Barget standing in his
office window in the office building while the car was on
the crossover.
At the time of his discharge Tobias resided at 7987
Detroit Boulevard, Walled Lake, Michigan, and heated his
home with propane gas. As well, Tobias owned property at
7771 Detroit Boulevard which property was also a propane
gas user. Both properties were customers of the Company
and both received their propane gas by bulk delivery,
rather than using 100-pound cylinders. Tobias testified that
he paid for the gas used at his residence by a weekly
deduction from his pay which had started in the fall of
1970. However, about April 1, the $25-a-week deduction
was stopped. When the deductions stopped Tobias spoke
to Ingman and asked that they be reinstated. However, this
was not done and instead Ingman would cash Tobias'
paycheck and take out $25 in cash. This latter procedure
was followed for some 2 or 3 weeks.
Tobias testified that on a Sunday, approximately 3 weeks
before his discharge on May 25, he received a call from a
neighbor of the 7771 Detroit Boulevard rental property
who asked that Tobias remove some propane gas cylinders
which were lying near the rear of the property line at 7771.
That same day Tobias took the cylinders in his car from
the rental property to his residence. Tobias stated that he
found the cylinders lying just inside the back edge of the
rental property, about 5 or 10 feet inside the property line.
At that time there was construction going on on the
property which abutted the rear of Tobias' rental property.
Tobias testified that he did not know how the three
cylinders had come to be on his rental property. Two of the
cylinders were full and the third was almost full. Tobias
recalled that one of the cylinders had the identification
"Lee Cylinder," the name of the manufacturer of a
cylinder. However, he could not recall if there was any
such identification on the other two cylinders. He did state
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that none of the cylinders bore any identification linking
them to Northwest Propane.14
Tobias testified that on the Monday after he took the
three cylinders from his rental property he told Ingman
that he had the cylinders at his home and she asked him to
pick them up and bring them to the Company. Tobias
brought two of the cylinders to the Respondent and one
remained at his home. Tobias testified that the cylinder
which remained at his home bore no identification linking
it to the Company and that he did not know if the two he
brought to the Company bore any identification because
he "Never thought of it at the time."
At that time Tobias was waiting for a bulk delivery of
propane at his home and the tank was running out.
Approximately a week and a half after his first conversa-
tion with Ingman about the cylinders Tobias told her that
if he did not receive the bulk delivery, he would probably
have to hook up the remaining cylinder to maintain heat
and hot water in his home. He testified that Ingman replied
that it would be all right for him to do so.
Vera Boudrie testified that on the day Tobias was
discharged she had asked Shirley Ingman why Tobias was
not working. Ingman replied that he had been discharged
for taking gas. Boudne told Ingman that she had heard the
office manager tell Tobias that he could hook up the 100-
pound cylinder. Boudne testified that Ingman had okayed
Tobias' hooking up the tank in his home a week or two
before his discharge. Tobias had explained that he was out
of gas and that there was the 100-pound cylinder at his
home which he would hook up if he did not receive a
delivery. Boudrie testified that Ingman replied, "Okay,
Jack."
Tobias testified that he hooked up the 100-pound
cylinder at his home on Friday, May 21, and on Monday
morning told Ingman that he had done so. Ingman asked if
Tobias had written a ticket on the cylinder. Tobias replied
that he had not done so and that was why he was telling
her now about the disposition of the cylinder.
On May 24 Tobias' timecard was in the timeclock rack
and he worked as usual. However, on May 25 his timecard
was missing from the rack and when Tobias asked Ingman
about his card she told him to see Barget. Tobias went to
Barget's office where Barget asked him to be seated and
suggested that they talk. After an exchange in which Barget
talked about how well he had done by the employees and a
compliment from Barget about Tobias' work, Tobias told
the company president, "wait, we are not kids. What is this
all about?" Barget then told Tobias that he was fired.
Tobias asked why and Barget replied because Tobias had
stolen gas. Tobias denied the accusation and Barget said
that it was a 100-pound cylinder which was in question.
Tobias claimed that the Company was discharging him
14 There was considerable testimony concerning identification of the
cylinders used in the Company's operations It would appear that the
majority of the cylinders bore the Company' s name in letters indented into
the metal of the cylinder Others, owned by the Company, had the cylinder
manufacturer's name only and there were some cylinders which the
Company had purchased from other propane gas companies and might or
might not have the name of the former owner In addition, it appears to be
the practice in the industry for propane companies to use cylinders which
come into their possession from time to time although owned by other
propane companies Thus, the fact that a cylinder does or does not bear the
Company's name does not definitively disclose whether the gas in that
because of "the Union business," which Barget denied. As
far as the cylinder of gas was concerned, Tobias told
Barget Ingman had known that it was at his home. Barget
said that he did not know about this and would call
Ingman in. When Barget asked Ingman if Tobias had told
her that the cylinders were on his property, she denied that
Tobias had ever so advised her. Tobias then reminded her
that he had told her some weeks before about the cylinders
but Ingman insisted that she could not recall such a
conversation. After some further discussion about Tobias'
work and the fact that his honesty had never been
questioned before, Tobias called his wife to pick him up
and his employment was terminated.
Tobias testified that the discharge interview was the first
occasion in which he had any conversation with Barget
concerning the cylinder hooked up at his home.
Barget testified that during the morning of Friday, May
21, he was driving to a local country club on a road which
passed approximately 20 to 30 feet behind Tobias' home.
As he passed the house, Barget glanced over his shoulder
and saw that Tobias was using a 100-pound cylinder of
propane gas rather than gas out of the 500-gallon bulk
tank. Barget then determined to take a picture of the 100-
pound cylinder because he felt that if he confronted Tobias
about the cylinder it would disappear because Barget was
sure that Tobias knew he was doing something that he
should not be doing. At this point, Barget was asked:
Q. You must have had problems with him before.
A. Nothing that I can pinpoint. Suspicions, but
nothing definite.
Barget testified that he was driving home to obtain a
camera when, approximately 4 miles from Tobias' home,
he ran into a friend who had a camera in his car. The
friend returned to Tobias' home with Barget and took the
picture of the 100-pound cylinder in use at Tobias' home.15
Barget testified that he then returned to the Company's
premises, told Ingman what had happened and asked her
to check with Tobias about the cylinder when he returned
from his route. Barget testified that Tobias told Ingman he
had obtained the cylinder from a neighbor who had given
it to him or had called Tobias and told him about the
cylinders at a construction site. Barget testified that he then
entered the conversation whereupon Tobias changed his
story to say that the contractor or the superintendent on
the construction site had given him the cylinders. Barget
stated that at that point he had to take Tobias' word but on
Monday morning he called Buchannon, the contractor,
and asked if they had given the cylinders to Tobias.
According to Barget, the contractor replied, "They were
returned to the Trenton Plant." 16 After obtaining this
information from Buchannon, Barget called his lawyer to
cylinder came from the Respondent
15 The picture, allegedly taken on Friday morning, May 21. was not
introduced in evidence by the Respondent
16 Barget has a second propane plant in Trenton, Michigan, which
carves on the same business operations as Northwest Propane Barget
explained that the Trenton plant services Buchannon , "when they build
down south " The construction site behind Tobias' rental property is
approximately 30 to 35 miles north of Trenton However, Barget claimed
that Buchannon had picked up these cylinders at the Northwest Propane
plant
NORTHWEST PROPANE CO., INC. 513
see whether he should fire Tobias or let him get away with
it because of the "labor problems."
On Tuesday, May 25, Barget called Tobias to his office
and confronted Tobias with the issue of the 100-pound
cylinder. Barget asked Tobias why he had-not made a
pickup ticket on the cylinder and Tobias just shrugged and
said "Tough." Barget stated that at one point in the
conversation Tobias stated that he could probably get a
letter from the contractor saying that Tobias had permis-
sion to pick up the tanks. However, Barget stated that he
had never seen such a letter. Barget then fired Tobias
stating that the discharge was because Tobias had not
made out the pickup ticket and because of the "so-called
stealing of the gas in the 100 pound cylinder."
Barget noted that other employees had been fired for
dishonesty.
Shirley Ingman testified that she had her first conversa-
tion with Tobias concerning the 100-pound cylinder on
May 21. Tobias asked if he could get a load of gas and she
said that because he owed a lot of money for gas she would
have to clear a delivery with Barget. Ingman advised
Tobias to check with Barget about a delivery.17 In this
conversation, Ingman asked Tobias if he had a cylinder or
more than one cylinder attached to his tank and told him
that she did not have a pickup ticket on those cylinders.
Ingman testified that on May 25 she was called in on the
conversation in Barget's office between Tobias and Barget.
Barget asked Ingman what she knew about the tanks and
she replied that she knew nothing about them and had no
ticket or record in the files. However, Tobias claimed that
Ingman did know about the cylinders and that employee
Ellerholtz had overheard Tobias telling Ingman about
them.is Barget asked Tobias where he had obtained the
cylinders, noting that Tobias had first said he had gotten
them from a neighbor and then claimed that a contractor
had given them to him. Tobias replied that he had picked
up the cylinders 2 or 3 weeks before from the contractor.
Ingman testified that Tobias offered to call his wife and
check on the date when he had obtained the cylinders but
when Barget offered the phone to Tobias to make the call
Tobias would not do so. Barget then said he would not put
up with stealing and discharged Tobias.
As with Larry Myers, General Counsel relies on the May
13 incident when Tobias was in Myers' car parked on the
crossover some 150 feet from the company office to
establish company knowledge of Tobias' union activity. As
noted, both Myers and Tobias testified that Barget was
standing in his office window with a full view of the
incident at the time. While I have found that the
circumstances surrounding Myers' discharge do not justify
an inference of illegality in his case, the circumstances of
Tobias' discharge are sufficiently different from that of
Myers to warrant such an inference and to conclude that
Tobias was discharged in violation of Section 8(a)(3) of the
Act. Thus, Tobias was an employee of longstanding
whereas Myers had been added to the working force at the
height of the Company's business activities in the winter of
1971. Further, whereas the Company did not replace
Myers, a replacement for Tobias was hired on June 1.
Additionally, Myers had been notified some time before
his termination that the probabilities were that the
Company would have no further use for his services when
its operations tapered off. Moreover, Myers' and Wright's
terminations came on May 14 the day after Gentile's
appearance at the Company's premises when the Company
had no way of knowing whether the Union's efforts had
been successful. By Barget's own admission he knew that
the Union had filed its petition for election prior to Tobias'
discharge. The final distinction between Myers' case and
that of Tobias is the fact that the Company's reason for
Tobias' discharge does not stand scrutiny. Thus, Boudrie,
who I found to be a credible witness, corroborated Tobias'
testimony that some time before his discharge he had
advised Ingman that he had the cylinder in question at his
premises, that he would be forced to connect the cylinder
to his heating system and that Ingman had approved this
course of action on his part. Thus, the Company's claim
that it first learned the cylinders were at Tobias' home by
the fortuitous coincidence of Barget's passing the rear of
Tobias' property on May 21 does not conform with the
credited evidence. The Company's failure to introduce into
evidence the photograph which Barget assertedly took of
the cylinder at Tobias' home on May 21 is incomprehensi-
ble in the light of Barget's testimony that he took the
picture because of his feeling that Tobias would deny the
presence of the cylinder at the premises and because of
certain undefined suspicions about Tobias' conduct. As
earlier noted, I do not credit Ingman and Barget unless
they are corroborated by a credited witness. In the case of
Tobias' discharge it was Tobias' version of the events
which was corroborated rather than that offered by the
Company's witnesses. Accordingly, I find that Tobias'
discharge was for his union activity, not because he stole
gas from the Company, and in violation of Section 8(a)(3)
of the Act.
G. The Discharge of Vera Boudrie
Vera Boudne last worked for the Company on June 7
after some 4 or 5 years of employment. Boudrie was hired
as a bookkeeper and included among her work assign-
ments was handling the cash register, waiting on custom-
ers, answering the telephone and filing.
On May 14, the day following Gentile's handbilling at
the Company's premises, Boudrie had a conversation with
driver James A. Yerex in the back room of the office
building, which conversation General Counsel cites as an
incident from which the Company derived knowledge of
Boudrie's union sympathies. Yerex testified that the
conversation took place at the timeclock, located approxi-
mately 15 feet from the door leading from the backroom
into the working office area where Ingman is located.
When Yerex told Boudne that employees had signed union
cards the night before, Boudrie asked "why didn't you tell
me about it so I could go down with you?" Yerex recalled
that his reply was to the effect that he had forgotten to
inform her or that the Union was just for the drivers. Yerex
could not recall whether the door leading from the
17 The Respondent did not introduce any company records to indicate
that Tobias did in fact owe money at that point for gas which had been
delivered to him
i8 Ellerholtz is no longer employed by the Company
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
backroom to the offices was open or closed at the time.
Boudrie testified that during her conversation with Yerex
she spoke in a voice which was "a little lower" than the
volume with which she testified . Examination of the
transcript of this proceeding reveals that at four points
Boudne was asked to speak up so that persons in the
hearing room , including the Trial Examiner , seated 3 to 10
feet from where Boudrie was sitting while she was
testifying could hear her answers to questions . Under the
circumstances , including the distance from the office door
to where Yerex and Boudne had their conversation and the
poor carrying quality of Boudrie's voice, I do not find that
an inference is warranted that any person located in the
separate office area could have overheard the conversation
and that the Company could have derived knowledge of
Boudrie's union sympathies from this incident.
As noted in the discussion of Tobias ' discharge, on the
day that Tobias was discharged Boudrie remarked that she
had heard Ingman tell Tobias that he could hook up the
100-pound cylinder of propane gas to his home . Boudrie
testified that after her comment to Ingman , Ingman went
directly to Barget 's office. Boudrie's statement to Ingman
undermined the Company 's stated reason for Tobias'
discharge.
On June 7, Boudrie went to Company President Barget's
office to ask "How come I was being mistreated like I
was." Boudrie explained that for the several weeks
-preceding June 7, Ingman had followed her whenever she
went to the restroom or even to get a drink of water.
Boudne asked Barget why this was happening. Barget
replied that Ingman was following her because Boudrie
was talking to employees about the Union, going out to the
trucks and talking to the men about the Teamsters.
Boudrie replied that she didn't care about the Union and
all she wanted was fairness in the place. Boudrie then
asked Barget if Ingman wanted her out and Barget replied
that Ingman did, explaining that one reason was Boudrie's
talking about the Union . When Boudrie said that she
didn't know what she was to do as she needed a job , Barget
offered Boudrie a number of days off with pay to look for
a new job. The following day, June 8, Boudne did not
report for work at Northwest Propane and commenced her
search for a new job . Boudne has not worked for the
Respondent since June 7.
Barget's version of this conversation was that Boudrie
came to his office to talk about how she was being treated.
Barget told her that he had criticized her for a year or two
because she was always behind on the books and she
needed Ingman to help her finish the month 's figures.
Barget complained to Boudrie that she disrupted the office,
had "thrown" work back , that it was hard for the office
employees to.work in peace , that there was bickering and
that therefore "I have to cease your employment." Barget
claimed that Boudne said she would return to her former
occupation as a beautician and that he gave her some days
off with pay to look for a new job as well as telling her to
take her vacation at that time . Barget recalled saying to
Boudrie that "I definitely had to make a change in the
office. . .
Barget claimed that in approximately February 1971 he
had spoken to Boudne about the time she took in posting
figures in her bookkeeping work , had told her that she
should look for work closer to her home since she was not
happy at the Company and was not doing the work that
Barget expected from a bookkeeper . Barget stated that at
that time Boudne cried and Ingman tried to calm her
down . Barget testified that he did not discharge Boudrie in
February because she was having 'money problems with
her family , he felt sorry for her and - therefore he just
insisted that she keep up her work on the Company's
books. However , he testified that there was never any
improvement in her work and the bookkeeping tasks were
never finished on time.
Barget testified that this deficiency in Boudrie's work
had been "for a good year" or "possibly a year and a half."
Shirley Ingman , as well as Barget , sought to paint a
picture of Boudrie as a totally unsatisfactory employee.
Thus, Ingman testified that when Boudne was hired she
stated that she had taken a night course in typing. Boudrie
was not tested on her typing or on the bookkeeping
machine before she was put to work . Ingman claimed that
Boudne, despite her claim of typing ability, would not do
any typing until a new bookkeeping machine with a
typewriter built into the equipment was installed and she
was forced to do some typing in connection with her
bookkeeping duties. As well , Ingman stated that when
Boudrie was first employed she was good in her handling
of phone conversations with customers but that as time
went on Ingman had to keep Boudrie away from the
telephone because "she was too caustic with customers."
Barget and Ingman cited one complaint from a customer
about a conversation that Boudrie had had on the
telephone with the customer 's wife . Barget , however,
admitted that he had had no direct conversation relating to
this customer 's complaint about Boudrie and Ingman
stated that she had heard only Boudne 's side of the
conversation in question in which Boudne had asked the
customer to pay a bill. Ingman admitted that she did not
know what the customer had said to Boudrie.
Ingman testified that in February when Barget had
complained to Boudrie about her work saying that he
would not put up with it any longer , Ingman had taken
Boudne home with her that night because Boudrie was in
"very, very sad shape after that." Boudrie asked Ingman to
intercede with Barget on her behalf and Ingman agreed to
do so . However , Ingman testified that she did not talk to
Barget about Boudrie 's work.
As with Barget, Ingman testified that Boudrie could not
keep up with her bookkeeping duties and claimed that this
had been true throughout Boudrie 's employment.
Thus, the picture which Ingman and Barget paint of
Boudne would warrant her having been discharged at any
time during the 4 or 5 years she worked for the Company.
However, she was retained for all of that time despite these
alleged deficiencies on her part. The question then arises
what was the turmng point which impelled the Company to
dispense with Boudne 's services on June 7 . Based upon my
observation of the witnesses while testifying , I credit
NORTHWEST PROPANE CO., INC. 515
Boudrie's version of her June 7 conversation with Compa-
ny President Barget19 and find that the Company was
aware of Boudne's sympathies for the Union and her
talking about the Union with the drivers, and that the
decision to dispense with her services was based upon her
sympathy for and sponsoring of the Union rather than her
claimed deficiencies over the entire course of her employ-
ment. Accordingly, I find that the Company discharged
Vera Boudrie on June 7 in violation of Section 8(a)(1) and
(3) of the Act.
H. Independent Violations of Section 8(a)(1)
Leonard Petrie and Vera Boudrie testified to an incident
in the latter part of May which occurred while Petrie was
standing at Shirley Ingman's desk in the Company's office.
Petrie recalled that Ingman stated that if the Union got in
the Company would have to lock up the gates. Boudrie
testified that Ingman added, "If the Union got in here Mr.
Barget may close this place up, and then who's going to
feed your six kids?"
The only conversation that Ingman recalled having had
concerning the Union in which Petrie was involved took
place in the backroom of the office building after the
Board notice concerning the representation petition had
been posted. At the time Boudrie and Petrie were at the
coffeepot reading the notice. Boudrie said something which
lead Ingman to think that Boudne believed she was
affected by the posted notice and Ingman said, "Vera, we
are not affected by that. That's the Teamsters. The truck
drivers." Ingman stated that she then walked away from
Boudne and Petrie.
I found Petrie and Boudrie to be credible witnesses and
as earlier noted, based upon my observation of her while
testifying, I would not credit Ingman except where she is
corroborated by a credited witness. Accordingly, I find
that as testified to by Petrie and Boudrie, Ingman stated
that the Union could lead to the closing of the Company
with adverse affects on Petne's ability to support his
family. I shall recommend a remedial order to correct this
coercive statement.
Further, I find that in his conversation with Boudrie on
June 7 Company President Barget admitted that the
Company had been conducting surveillance of Boudrie's
activities because of her sympathy and talking for the
Union and that this surveillance constituted a violation of
Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
shall recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent unlawfully dis-
charged Jack Tobias and Vera Boudne, I shall recommend
that Respondent be ordered to offer to the employees
named immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
and other rights and privileges, and to make them whole
for any loss of earnings suffered as a result of Respondent's
unlawful conduct. Backpay shall be computed in the
manner set forth in F. W. Woolworth Company, 90 NLRB
289, with interest added thereto in the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended, in view of the nature of the
unfair labor practices in which the Respondent engaged,20
that it cease and desist from infringing in any manner upon
the rights guaranteed employees by Section 7 of the Act.
CONCLUSIONS OF LAW
1. Northwest Propane Co., Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local 614, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By engaging in certain described conduct referred to
here and above, in section III, F and G, hereof,
Respondent interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By engaging in conduct described in section III, E
and F, hereof, Respondent discriminated against Jack
Tobias and Vera Boudrie in regard to the terms and
conditions of their employment, in order to discourage
activities protected by Section 7 of the Act, and thereby
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not committed other unfair
labor practices as alleged in the complaint.
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: 21
19 In connection with that conversation I note the juxtaposition of
Ingman's surveillance of Boudrle 's activities with Boudrie giving the lie to
Ingman's claim that she first learned of the 100-pound cylinder at Tobias'
home on May 21 by her comment that she had overheard Ingman's
approval of Tobias' using that gas some 2 or 3 weeks before
20 See N LR.B v Entwistle Mfg Co, 120 F.2d 532, 536 (C.A 4)
21 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
(Continued)
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Northwest Propane Co., Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership and activities in Local 614,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, by discriminating
in regard to the hire and tenure of employment of
Respondent's employees in order to discourage member-
ship.
(b) Threatening employees that the Company would
close if the Union was successful in organizing its
employees or conducting surveillance of the union activi-
ties of its employees.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer to Jack Tobias and Vera Boudrie immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay they
may have suffered as a result of their discharge in the
manner set forth in The Remedy section hereof.
(b) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
22 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted pursuant
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(d) Post at its Farmington, Michigan, facility copies of
the attached notice marked "Appendix B." 22 Copies of
said notice, on forms provided by the Regional Director
for Region 7, 'after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.23
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges unfair labor practices not
found herein.
to a Judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board "
23 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read.
"Notify the Regional Director for Region 7, in writing , within 20 days from
the date of this Order , what steps the Respondent has taken to comply
herewith."
NORTHWEST PROPANE CO., INC.
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518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees that the Company
will close if the Union organizes our employees.
WE WILL NOT spy on the union activities of our
employees.
WE WILL NOT in any other manner interfere with the
rights of our employees under the law to engage in
union activity or other concerted activity or to refrain
from such activity or force them to give up any of their
rights under the law.
WE WILL offer to Jack Tobias and Vera Boudrie
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniori-
ty or other rights and privileges.
WE WILL make Jack Tobias and Vera Boudrie whole
for any loss of pay they may have suffered as a result of
the discrimination against them with interest at 6
percent added thereto.
You are all free to become or remain members of Local
614, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization, or to refrain from doing so, and we
won't punish you in any way if you do.
Dated By
NORTHWEST PROPANE
Co., INC.
(Employer)
(Representative) (Title)
We will notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 500
Book Building, 1249 Washington Boulevard, Detroit,
Michigan 48226, Telephone 313-226-3200.