United Gas Distribution Co.

National Labor Relations Board - Board Decisions

Dec 14, 1970

187 N.L.R.B. 225 (N.L.R.B. 1970)

UNITED GAS DISTRIBUTION CO.
United Gas Distribution Company and Oil Chemi-
cal and Atomic Workers International Union,
AFL-CIO. Case 16-CA-3858
December 14, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On August 7, 1970, Trial Examiner Jerry B. Stone
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He also found
that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed.
Thereafter, the General Counsel filed exceptions and
Respondent cross-exceptions to the Trial Examiner's
Decision together with briefs in support thereof.
Respondent also 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 committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, cross-excep-
tions, and briefs and the entire record in the case, and
hereby adopts the findings, conclusions, and recom-
mendations 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-
ed Order of the Trial Examiner and hereby orders that
United Gas Distribution Company , Tyler, Texas, its
officers , agents, successors , and assigns , shall take the
action set forth in the Trial Examiner 's Recommend-
ed Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Trial Examiner: This proceeding, under
Section 10(b) of the National Labor Relations Act, as
amended, was tried pursuant to due notice on May 14,
1970, at Tyler, Texas.
The charge was filed on January 28, 1970. The complaint
in this matter was issued on April 9, 1970. The basic issues
are (1) whether Respondent engaged in conduct violative of
I The Respondent admits supervisory status of the individuals involved
but denies the status of agents No evidence was adduced to this issue
other than the pleadings. For the purpose of the 8(a)(l) and (3) allegations
225
Section 8(a)(3) and (1) of the Act by the discharge on
January 15, 1970, of Bobby Dike and (2) whether
Respondent engaged in conduct violative of Section 8(a)(1)
of the Act by interrogation, promise of benefits, surveil-
lance, and threats, all related to union activities or desires
of employees.
All parties were afforded full opportunity to participate
in the proceeding, and briefs filed by the Respondent and
the General Counsel have been considered.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
United Gas Distribution Company, the Respondent, is a
division of Pennzoil United, Inc., a Delaware corporation.
At all times material herein, Respondent has been
continuously engaged in the sale and distribution of natural
gas in the States of Texas, Louisiana, and Mississippi. At all
times material herein , Respondent has maintained , for the
purposes of administering its business operations, various
geographical districts, including the Tyler district with
headquarters and offices in the city of Tyler, Texas. The
Tyler district is the only district involved herein.
During the past 12 months, which period is representative
of all times material herein , Respondent in the course and
conduct of its business operations received gross income in
excess of $500,000 from the sale and distribution of natural
gas. During the same period, Respondent purchased and
received, within the State of Texas, goods and materials
valued in excess of $50,000 from States of the United States
other than the State of Texas.
Based upon the foregoing and as conceded by the
Respondent, it is concluded and found that the Respondent
is 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.
II. THE LABOR ORGANIZATION INVOLVED
Oil, Chemical and Atomic Workers International Union,
AFL-CIO, the Union , is and has been at all times material
herein a labor organization within the meaning of Section
2(5) of the Act. It is so concluded and found.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues
Supervisory Status i
At all times material herein, the following named persons
occupied positions set opposite their respective names and
have been and are now agents of Respondent, acting on its
behalf, and are supervisors within the meaning of Section
2(11) of the Act:
A. E. Johnson Manager, Tyler District
O. W. Slay Superintendent, Tyler
District
in this case, supervisory status connotes the status of agents for conduct
related to such issues
187 NLRB No. 30
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jerry Bruner Construction and
Maintenance Foreman
It is so concluded and found.
B. Background2
The Respondent operates a facility at Tyler, Texas, and is
engaged there in the distribution of natural gas services to
local area residents. The Respondent's facilities in Tyler,
Texas, were originally owned and operated by Tyler Gas
Company.
Bobby Dike, the alleged discnminatee,3 commenced
work at the Tyler facilities in 1957. At this time, he was
trained for his job as serviceman by a fellow employee,
Slay. The facts are clear that Dike and Slay got along well
together as fellow employees. After Slay was promoted in
1958 from a position as serviceman to supervisor, the facts
are also clear that he and Dike continued to get along well
together.
In June 1966, United Gas Corporation acquired owner-
ship of the Tyler facilities involved herein and commenced
operation thereof. From June 1966 to January 1, 1968, the
Tyler operation was considered a division of United Gas
Corporation and was managed by a division manager,
Wiggs; a division superintendent, Finch; a service supervi-
sor, Slay; 4 and a construction and maintenance foreman,
Helton.
On January 1, 1968, the Tyler facilities ceased being a
division and became a district in the East Texas division.
The Tyler district at that time was made a part of a
preexisting East Texas division; Wiggs was made manager
of the East Texas division; Finch was transferred to
Houston (outside of the district); Helton retired; Slay was
made district superintendent; and Bruner became the
district construction and maintenance foreman.5
Respondent's Tyler facilities operated on a somewhat
different basis from Respondent's other facilities. Thus
Respondent's Tyler facilities sold "air-conditioning"
through a dealer who serviced, installed, and maintained
the "air-conditioning" systems. Respondent's other facili-
ties sold "air-conditioning" directly to customers, and
serviced, installed, and maintained such systems. Respon-
dent in its total operations had classifications for employees
of service specialists, customer servicemen, servicemen, and
junior servicemen. At the Tyler operation the Respondent
did not have the classifications of service specialists or
customer servicemen.
Commencing in October 1966, the Respondent sent Dike
to a number of schools. Thus Dike attended a school in
basic electricity in October 1966, a school in applied
electricity in March 1967, a school on gas service
functioning in May 1967, a school in appliance services in
October 1967, and a school in air-conditioning functions in
February 1968. Dike made good grades in such schools.
Dike also came in contact with employees at such schools
Y The facts are based upon the credited aspects of the testimony of
Dike , Slay, and Johnson
3 Alleged to have been discriminatorily discharged because of his union
activities on January 15, 1970
4 Prior to January I, 1968, Slay spent a substantial portion of his time in
who had higher job classifications and who earned higher
wages than he did.
In early 1968 it appears that Slay decided that his overall
supervisory responsibility necessitated relief with respect to
certain functions. Thus Slay decided to shift some of his
functions concerning the dispatching of servicemen to
Dike, the senior serviceman. Slay told Dike in effect that he
wanted him (Dike) to handle the handing out of orders and
the dispatching of men. Dike and Slay discussed and agreed
that such assignment would result in Dike's not being able
to do the same amount of service work as he had been
doing.
From early 1968 to November 1969, Dike, as part of his
duties, handed out work orders and dispatched servicemen
to jobs. Dike and Slay appear to have gotten along well, at
least until after September 12, 1968. Thus, on September 12,
1968, Respondent had an "Employee Performance and
Qualification Review" with respect to Dike. Dike complet-
ed the "employee section," indicated the schools that he
had attended, and indicated that his present line of work
provided an opportunity for use of his ability, training, and
experience. Slay completed the supervisor's section,
indicated that Dike was outstanding in (1) skill and
knowledge of job and (2) performance on job, and fully
adequate as to all other criteria for which comment was
requested. Slay indicated that Dike was qualified for
promotion with additional training as a service specialist,
that "experience on the job would qualify this employee."
Slay also indicated in comment that Dike had 9 years'
experience, had attended all available schools, had finished
with good grades, and was familiar with all service work.
Slay indicated that Dike in sum effect could be described as
a "very good" employee. Otherwise it can be noted that
Slay indicated that Dike was "very dependable," showed
good interest in the Company, showed good judgment and
accurate decisions, had good appearance and conduct, and
had a good attitude.
Between September 12, 1968, and June 24, 1969, there
developed a change in Dike's attitude with respect to the
supervisor (Slay)-employee (Dike) relationship. Similarly,
there developed a change in Slay's evaluation of Dike as an
employee. The facts reveal that Dike did not readily follow
some of Slay's instruction or directions but either engaged
in discussion with Slay as to the manner of carrying out the
instructions or did not comply. Thus Dike disputed the
wisdom of Slay's instructions as to how to make certain
chart changes, deviated at times from company policy as to
uniform dress and appearance and Slay's remarks pertain-
ing thereto, did not comply with Slay's request (instituted
by Slay's superior, Wiggs) about repairing his truck's
bumper, and resisted Slay's instructions to check up on the
servicemen. Further, Slay had reason to believe that an
employee, Overholtz, wanted to resign at one time because
of Dike's action directed toward such employee. There also
appeared minor friction as to the amount of work Dike
himself performed.
On June 24, 1969, the Respondent made another
dispatching men and handing out orders to servicemen.
5 Slay and Bruner composed the entire supervisory staff at the Tyler
location from January 1, 1968, until June 1, 1969, when A. E Johnson
became district manager and assumed overall supervision of the Tyler
facility
UNITED GAS DISTRIBUTION CO. 227
employee performance and qualification review. Dike
signed the "employee section" but indicated no comment
therein. Slay's supervisor section therein indicated in effect
that Dike was a fully adequate employee and that in sum
Dike was a "good" employee. There were no indications of
"outstanding" qualities. Dike was indicated as a dependa-
ble employee and not as in 1968 as a "very dependable
employee," and as adequate with respect to interest in
Company, as to judgment and accuracy of decisions, as to
appearance, and as to attitude.
Slay told Dike in effect that his performance was not as
good as it had been before and that the reason for the
change was attitude.
Around June-July 1969, Dike spoke to Slay about raises.
Thus Dike spoke about a raise for himself and also
commented about raises for others. Slay indicated to Dike
that he could not do anything about the raises. Dike
remarked that Slay was superintendent and should be able
to make adjustments.
Around September 1969,6 an incident concerning Slay's
filling out a dispatch sheet reveals some friction in the
relationship between Slay and Dike. Thus Slay had
occasion to ask Dike about his dispatch sheet for the day.
Dike had not made one out and told Slay that he had been
busy and offered to prove that he had been working. Slay
denied any implication that Dike had not been working and
offered to help Dike complete the dispatch sheet. A short
time later Dike and Slay had coffee together and Dike
brought the matter up. Dike told Slay that he wanted to be
relieved of the dispatching and related paperwork and
wanted to simply work on service calls. The next day
arrangements were made to have others assume the
dispatching and related paperwork deities.
In the fall of 1969 the Union was engaging in organizing
efforts among the employees of Respondent's Houston and
Beaumont divisions. During this time, around September,
Division Manager Wiggs was at the Tyler plant and
apparently made mention of the organizing campaign that
was going on and apparently was advised that there was no
activity at the time in the Tyler division.?
C. Events-October Through December 1969
1. The Union apparently commenced organizational
activity among Respondent's Tyler employees in mid-
October 1969. Around the middle of October 1969, the
Union held a union meeting at the Holiday Inn in Tyler,
Texas. Around 17 or 18 employees, including Dike,
attended this meeting.
On the night of the union meeting, Supervisor Bruner had
6 There is no issue that this occurred before the union activity in this
case Although Dike 's testimony was unsure of precise date and placed it as
being September, October, November, or around that time , considering the
logical consistency of all the facts , I fix the time as indicated.
7 There is no allegation of unfair labor practices with respect to Wiggs'
conduct Dike's testimony as to Wiggs' conduct is imprecise and
conclusionary and only credited to the extent as above indicated The
Union won elections at Houston on September 4, 1969, and Beaumont on
November 26, 1969. The Union was thereafter certified and contracts were
successfully negotiated by late April 1970 There is no evidence of unfair
labor practice conduct by the Respondent in connection with such
organizing campaigns or negotiations
9 The only real dispute is whether Slay questioned Dike as to "who" was
at the meeting Dike in his testimony as to this event appeared to be a fully
occasion to call Dike's home for the purpose of getting Dike
to do some emergency work. Dike was not at home and
Dike's wife told Bruner that Dike was at the union meeting.
What occurred the next day with respect to Bruner, Dike,
and Slay is revealed by the following credited excerpts of
Dike's testimony.8
A. Yes. The next morning he got me and we went
down to coffee. We was talking, you know, about the
union on the way down.
He said that he had called out at my house the night
before, get me on a leak or something, emergency work,
I wasn't there. And my wife said I was gone to a union
meeting.
I told him, I said, "Well, you know how these women
are. They don't know what a union meeting is or
anything else."
He also said that she asked him why he wasn't there.
And we were just talking about the union.
And shortly, Mr. Slay arrived at the coffee shop-
s * s * s
A. He came in and Jerry said something like he
went to a meeting or the boys went to a meeting last
night, a union meeting.
And Mr. Slay says, "You mean you went?"
I said, "Yes, I went."
He says, "Who all was there?"
I said, "Now I don't know, Slay, who was there." I
said "I sat on the front row."
He said, "Oh, you got up close."
I said, "No, I got there late. And I got the only chair
that was left."
So we kept on, general conversation. I say no longer
than an hour, 45 minutes.
Considering all of the foregoing, it is clear that Slay made
inquiry as to who attended the union meeting, that no
justifiable reason for such inquiry existed, that assurances
of nonreprisals were not given, and that the questioning,
therefore, was coercive in nature. Accordingly, it is
concluded and found that the Respondent, by Slay, on or
about October 13, 1969, engaged in illegal interrogations as
to employee union activity. Such conduct is violative of
Section 8(axl) of the Act. It is so concluded and found.
2. On the day after the mid-October union meeting,
Slay also had a conversation with employee Parks. What
occurred is best revealed by the credited excerpts from
Parks' testimony.9
A. Well, we got to the coffee shop. We talked about
just one thing and then the other, on the way to the
frank , forthright , and truthful witness . Although Dike, as a witness with
respect to the question of his discharge , appeared to be building his case, I
believe his testimony as to this incident . Slay appeared to be a witness
testifying to the truth generally . As to his testimony concerning incidents of
interrogation and promise of benefits as regards Dike , Parks, and Lyles, his
testimony did not appear to be complete and fully frank. Considering the
foregoing and logical consistency of facts , I credit Dike's version of this
incident and discredit Slay's version inconsistent therewith.
B The facts are based upon Parks' credited testimony. Parks ' appearance
as a witness was that of a fully frank, forthright , and truthful witness . Slay's
testimony contradicted the questioning aspect and the promises of benefits.
Slay, as indicated , testified generally in a truthful thrust His testimony,
however, on this incident did not appear to be full and complete.
Considering the demeanor and testimony of the witnesses and the logical
(Continued)
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coffee shop. When we got there, Slay asked me if I had
anything to tell him after we got our coffee.
I presumed he was talking about the union meeting, I
knew he knew about it. The night before.
I told him that I had been to the union meeting, that
there were quite a few there.
I don't know. He told me some of the good things
about the union. We had a general conversation about
some of the good and bad things a union can do for
you.
A. Well, dust as we got up when we were talking
about the pay. That was my main theory on it. I told
him that I hadn't decided one way or the other, but the
pay was the main thing that I needed.
And he said he had been working on some raises. At
the time he had some OK'd and in his pocket. But he
didn't say anything other than that.
Considering all of the foregoing and the surrounding
circumstances, I conclude and find that the Respondent, by
Slay, on or about October 13, 1969, engaged in illegal
interrogation as to employee union activity, and made
promises of increased wages and other benefits to
employees if they refrained from union activity. Such
conduct is violative of Section 8(a)(1) of the Act. It is so
concluded and found.
3. After the mid-October union meeting, apparently
within a week, Slay also had a conversation with employee
Lyles. What occurred is revealed by the following excerpts
of Lyles' credited testimony. 10
A. Asked me if I had anything I wanted to tell him.
And I told him-I knew what he was talking about-I
told him I had gone to the meeting.
THE WITNESS: He asked me did I have anything to
tell him. I figured he was talking about-
TRIAL EXAMINER: Here's the thing.
Don't-under the rules of evidence you can't tell us
what you were thinking. Just tell us what he said and
what you said at that time.
Q. (By Mr. Hams) After he asked you this
question, what did you say?
A. I had gone to the union meeting.
A. Yes, sir. He asked me to talk it over with my wife
and let him know which side of the fence I was on.
Q. Did you later go back and talk to him?
A. Yes, sir, that afternoon I told him I was
Company man.
Considering all of the foregoing , I conclude and find that
the Respondent , by Slay, engaged in illegal interrogation as
to employee union activity , on or about October 13, 1969.
Such conduct is violative of Section 8(a)(1) of the Act. It is
so concluded and found.
4. After the mid-October union meeting and apparently
during the next several weeks , Dike signed a union card and
solicited several other employees to sign union cards.
5. Around the first of November 1969, Supervisor
Bruner spoke to employee Parks about the Union. What
occurred is revealed by the following credited excerpts of
Parks' testimony.
A. Not September , but November. Around the first
of November.
He dust asked me, heard they was going to have a
meeting, asked me if I was going to attend. I told him
there probably wouldn't be enough there to be worth
while. Didn't figure I'd go.
He said that the Company would appreciate, you
know , if we didn't go.
That's all that was said.
Considering the foregoing and the violative conduct
otherwise found in this case , I conclude and find that the
Respondent, by Bruner, engaged in illegal interrogation as
to employee union activity or desires on or about
November 8, 1969 . Such conduct is violative of Section
8(a)(1) of the Act . It is so concluded and found.
6. Two or three weeks after the mid-October union
meeting , Slay had another conversation with Parks. What
occurred is revealed by the following credited excerpts from
Parks ' testimony.ii
Q. After this first conversation?
A. This first conversation , we was working down at
the plant one day. I believe it was raining . I came up
about 11 : 00 o'clock, up at the office for something, and
he called me in his office, asked me if I decided which
side of the fence I was on.
I told him that I hadn't decided.
We had a pretty long discussion about the union,
then. First one thing and then the other . Still some good
things , bad things , the union could do for you.
A. I had asked him for the day off, and he told me
that if it was the union I would be docked for that day.
And several other things, you know, about the union.
What would be bad for us, what would be good.
He did give me the day off.
consistency of all of the facts , I credit Parks' version of the facts and
discredit Slay's version of facts inconsistent therewith.
10 The facts are based upon Lyles' credited testimony Lyles'
appearance as a witness was that of a fully frank, forthright, and truthful
witness. For substantially the same reason as the credibility resolution of
the conflict between Slay's and Parks' testimony concerning the incident
previously set out, I find Lyles the more credible witness and credit his
a a • a r
A. Just before I got ready to leave, he asked me
again which side of the fence I was on.
I told him I hadn't decided.
He said, "Well, when you decide, we might can help
testimonial version of facts and discredit Stay's version of facts inconsistent
therewith.
11 The facts are based upon Parks ' credited testimony. For the same
reasons indicated with regards to the credibility resolution of the earlier
conversation between Slay and Parks on or around October 13, 1%9, I
credit Parks' version of facts and discredit Slay's version of facts
inconsistent therewith.
UNITED GAS DISTRIBUTION CO. 229
you," or something to that effect. Might can do
something for you or something like that.
Q. After the second conversation with Mr. Slay, did
you receive a raise?
A. Shortly thereafter I received a raise, yes, sir.
Considering all of the foregoing, I conclude and find that
the Respondent, by Slay, on or about November 10, 1969,
engaged in illegal interrogation as to employee union
activity or desires, and made promises of benefits as to
increase wages and other benefits if the employee refrained
from union activity. Such conduct is violative of Section
8(a)(1) of the Act. It is so concluded and found.
7. In November 1969, Dike, Slay, and an engineer
named Kirkendall were together and Slay made reference
to Dike's being a "union man ." What occurred is revealed
by the following credited excerpts of Dike's testimony.
A. We got in a car to go to coffee. We started off
and Slay says, "Kirk, we got a union man in the back
seat."
I said, "No, I'm not saying I'm a union man. I'm in
the middle of the road. I'm listening to both sides.
Although I think there needs to be some changes
made."
Kirk reached back, patted me on the leg, he says, "I
do too."
8. On or about December 13, 1969, the Union held a
meeting at the Holiday Inn in Tyler, Texas. Two of
Respondent's employees, Dike and Overholtz, attended the
meeting . Overholtz had parked his car in back of the
Holiday Inn on the parking lot of the Gibson's Discount
Center. When the union meeting was over, Overholtz
proceeded to his car. At that time Overholtz saw a white
station wagon parked on the lot. Overholtz left in his car. At
the corner of Beaux and Glennwood, Overholtz observed
the white station wagon pull beside his car. Supervisor
Bruner was in the white station wagon. Overholtz
proceeded straight on Beaux , and Bruner turned right on
Glennwood.
Considering all of the foregoing and the circumstances of
the station wagon 's being on a parking lot of Gibson's
Discount Center, I am persuaded that the evidence is
insufficient to establish a prima facie case concerning
General Counsel's complaint allegation as to the maintain-
ing of surveillance . Accordingly, I recommend that
complaint paragraph 7(c) in such regard be dismissed.
9. The next morning , after the union meeting described
above, District General Manager Johnson, District Super-
intendent Slay, and Dike had another conversation. The
facts are revealed by the following credited aspects of the
testimony of Dike.12
Q. After this meeting , did Mr. Slay talk to you
about the union?
A. Yes. The next morning after that meeting, he
12 The facts are based upon the credited aspects of Dike 's testimony To
the extent that Dike 's testimony alluded to a threat about the fact that
Dike was not indispensable , I discredit such testimony Slay's and
Johnson 's testimony conveyed a denial of questioning about union activity
or of card signing , and a denial that Johnson had told Slay to get Dike; I
discredit such testimony As indicated , there were aspects of Dike 's, Slay's,
and Johnson 's testimony in this case wherein the demeanor of each
appeared frank , forthright , and truthful. Such testimony had the ring of
came in the office there , my office , said let's go get some
coffee. And Mr. Johnson was in his car out front.
And we got in, started off, and Mr. Johnson said that
he had asked Slay, you know, what went on, or how the
meeting went, or something. And Slay said it was awful
quiet, he hadn't heard a thing.
So he said, "I told him to go get Dyke and get some
coffee."
So Mr. Johnson asked me how it went and
everything.
So I said , "Well, there wasn't enough there for too
much, for anything to go on."
On the way down there or shortly after we got in the
coffee shop, he asked me if there were any cards signed.
I said no, there wasn't enough for that. Not there.
He said, "How many would you say was there?"
And I said, "A few."
» * n s s
A. He asked me if there was any cards signed. I
said, "No, there wasn't enough people there to even
have a meeting."
And he asked if the union was fixing to pull out or
close down or something.
I said no.
They were not going to close down until after
Christmas. He said it was slow during the holidays,
everything. Which Mr. Black had told me at the
meeting that it would be after Christmas, the first of the
year, before they got back, you know.
s s s s s
A. Yes. He says, after we sat down, was drinking
coffee, he said, " I never have threatened you about
going to the union meetings?"
I said, "No, sir, you haven't."
He said, "I don't care if you go to the meetings. Mr.
Slay doesn't care, do you?"
I answered, "No, I don't care."
He says, "Now the Company hasn't made any bones
about not needing a union, not wanting a union?"
I said, "No, they sure hadn't."
Considering all of the foregoing, I conclude and find that
the Respondent, by Johnson, on or about December 15,
1969, engaged in illegal interrogation as to employee union
activity or desires. Such conduct is violative of Section
8(a)(1) of the Act.
The complaint alleges in effect, with respect to the
foregoing incident referred to, that the Respondent, by
Johnson, orally threatened to discharge its employees if
they became or remained members of the Union or gave
any assistance or support to it. The credited facts do not
support this allegation. Accordingly, it will be recommend-
truth On the other hand as to certain aspects of Dike's, Slay's, and
Johnson's testimony , the demeanor of each appeared to be strained and
such testimony lacked the ring of truth . I credit Johnson 's and Slay's
testimony to the effect that Johnson did not impliedly threaten Dike about
indispensability or loss of job . The consideration of the foregoing and the
logical consistency of all the facts persuade me that the facts are as
credited.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed that complaint allegation 7(d) in such regard be
dismissed.
10. The Respondent elicited testimony from Slay
concerning an incident wherein an employee , Soirez,
complained in December of having to do more than his fair
share of work. Slay, at the time , told all of the employees
involved that they would have to work their share of the
orders.
Slay testified to the effect that he checked into Soirez'
complaint. In answer to a leading type question, Slay
testified that it appeared that Dike had worked fewer orders
in amount in the 6-week period preceding the incident than
the other employees. Slay indicated, however, the difficulty
of evaluation of work based upon his check of what was on
paper. Considering his answers of a qualified and limited
type, I find nothing probative or persuasive about this
incident as regards the issues in this case.
D. EventsJanuary 1970
The Discharge of Dike-January 15, 1970
The weather at Tyler, Texas, was extremely cold on the
morning of Tuesday, January 6, 1970. Superintendent Slay
requested Dike to report to work around 6 a.m. on a "no
gas" complaint. Dike reported to work around 6 a.m. and
worked continuously thereafter until 10 p.m. Slay apparent-
ly around this time also told Dike to report to work 1 hour
earlier on Wednesday, January 7, 1970. Dike's timecard as
completed by him for such days apparently reflected that
he worked from 6 a.m. to 10 p.m. on January 6, 1970, did
not reflect the extra hour of work on Wednesday, January
7, 1970, and reflected a claimed total of 18 hours on
January 6, 1970.
Late on Friday afternoon, January 9, 1970, Mrs. Frances
Phillips was engaged in preparing payroll documents, for
the week January 2-9, 1970, for Slay's signature and
mailing to headquarters.13 Phillips was unable to complete
the payroll documents by 5 p.m. and stayed later to do so.
Apparently around 5 p.m., Superintendent Slay left to go
home with the intention of returning to the office to sign the
prepared payroll records and to mail the same to
Respondent 's headquarters.
While Slay was out of the office, Phillips noticed that
Dike 's timecard reflected 18 hours claimed for the 6 a.m. to
10 p.m. work on January 6, 1970. Phillips tried unsuccess-
fully to telephone Slay at home in order to receive
instructions as to how to credit Dike's time for pay
purposes . Phillips then telephoned Supervisor Bruner and
related the information on Dike 's timecard concerning
January 6, 1970. Bruner, apparently computing the hours
13 There is a slight discrepancy in the testimony of the witnesses as to
the timing of these events . I found Dike's testimony to the effect that his
conversations with Phillips and Slay occurred on Monday , January 12,
1970, to appear more sure as to the timing thereof than did the testimony
of Slay and Johnson Slay's testimony as to the timing of these events was
in answer to leading and suggestive questions and otherwise appeared to be
unsure as to specific time. Johnson 's testimony as to timing of these events
appeared to be postulated upon an assumption that Slay's testimony was
correct. As indicated , I credit Dike's testimony as to the timing of his
conversation , and, upon this and the logical consistency of all of the facts, I
fix the time as indicated herein.
14 The facts are based upon credited aspects of Dike 's testimony and
the logical consistency of all of the facts To the extent that Dike's
from 6 a.m. to 10 p.m. as 16 hours, instructed Phillips to
credit Dike with 16 hours for January 6, 1970, for pay
purposes. Slay, later that evening, returned to the office,
signed and mailed the payroll documents to Respondent's
headquarters.
On Monday morning, January 12, 1970, Dike spoke to
Mrs. Phillips concerning his time and his next paycheck.14
Phillips told Dike in effect that 2 hours as claimed by him
had been knocked off from the approved time for pay. Dike
questioned Phillips as to whether she knocked the time off
or whether "they" had knocked the time off.15 Phillips told
Dike that she had not knocked his 2 hours off but that
"they" had. Dike told Phillips in effect that someone should
have seen him before his 2 hours had been knocked off, that
she could have seen him on Friday morning, that he
thought he had made it clear about the time on the back of
the timecard, and that if she had come to him that he would
have been glad to explain it to her. Phillips told Dike that
she did not have to see him about such matters, that she
could see either Slay or Bruner . Phillips told Dike to see
Slay or Bruner about the matter when they came in. Dike
told Phillips that he was going to see them (Slay and
Bruner) about the matter of his 2 hours.
Shortly thereafter, Dike saw Slay in Slay's office. Dike
asked Slay if he knew about the 2 hours that had been taken
off Dike's time for January 6, 1970. Slay replied that he did,
that he had heard Bruner say something about it. Dike told
Slay that someone should have come to him about the
matter before knocking the hours off. Dike and Slay then
commenced to count up Dike's hours for January 6, 1970.
Dike related to Slay that callout time of 3 hours was
involved and that he had worked during his noon hour. As
a result, Dike's time was computed from 5 a.m. instead of 6
a.m. so as to give Dike credit for 3 hours callout time prior
to regular work hours. Thus from 5 a.m. to 10 p.m. it was
revealed that Dike had 17 hours of work. Slay remarked
that there still were not 18 hours . Dike remarked in effect
that one of the 18 hours was for an hour of work on
Wednesday morning, that Slay had told him to report early
on Wednesday morning. Slay was satisfied with Dike's
explanation and told Dike to put the 2 hours on that day or
the next day's time and that Dike would be paid for it.16
A short time after Dike had left Slay's office, Mrs.
Phillips went in to see Slay. Mrs. Phillips complained that
Dike had jumped on her about the "time" problem. After
Slay's conversation with Phillips, Slay went to the
warehouse to see and speak to Dike. What occurred with
respect to the Phillips-Slay conversation and the Slay-Dike
conversation is best revealed by the following credited
excerpts from Slay's testimony.
testimony is suggestive of other preliminary facts thereto, I discredit such
testimony because it appeared to be presented in a somewhat evasive,
unreliable , and conjectural manner.
15 It is clear from all the facts that "they" referred to Slay and Bruner.
16 The testimony of the witnesses as to the I hour on Wednesday was
slightly different. Slay testified to the effect that the hour involved was one
for "yesterday" morning. I find it hard to believe that the discussion of
hours on the timecards for January 6, 1970, would involve an "hour" for a
day in the next pay period . At first blush , the discussion of an hour on
January 7 , 1970, appears to be somewhat inconsistent with all of the facts
also. However, Slay was clearly satisfied by the explanation at the time,
and, the facts reveal, Slay and Johnson were satisfied again on January 15,
1970, by Dike's explanation of hours worked.
UNITED GAS DISTRIBUTION CO. 231
A. Well, oh, in a very few minutes, say 15 or 20
minutes , Mrs. Phillips come in just crying, weeping.
She says, "There is one thing I want to ask you. Am I
supposed to ask you or Jerry about the time or anything
down here, or ask the men?"
I said , "Well you are certainly expected to ask your
supervisor about it."
She said, "Bobby just now jumped on me, all over
me, about this time." She was crying.
I said , "Oh, Frances, don't take it like that," or
something like that. And I walked on down to the
warehouse; Bobby was there.
And the best I remember, I told him, I said, "Bobby,
I think that was uncalled for."
So he said he didn't jump on her.
I said , "Well, she came in there crying. That's all I
know. If you did, I think it was uncalled for."
He said, "Are you telling me to apologize?"
I said, "No, I'm not telling you anything. I think you
know more about this than I do. If you feel like you
need to apologize, you do it. If you don't, don't do it."
And he said something about, "Well, I won't then,"
or something.
So we dropped it.
Later that afternoon, Dike spoke to Phillips again. Dike
was the only witness who testified to this incident. It is clear
that Dike spoke to Phillips and I find it proper from the
overall facts and his testimony to find that he told Phillips
that the time problem had been solved. Other than this,
however, I am not persuaded that Dike's testimony reveals
what actually occurred. Dike testified to the effect that he
indicated that the "time" problem was settled, that he might
or might not get paid for the time on the next time sheet. I
find it hard to believe and don't believe that Dike conveyed
any uncertainty as to whether he would get his pay. It is
clear that Slay had told Dike that he would get such pay.
Rather, I am convinced that something else was said and
that exactly what was said is not revealed by the record.
The incident concerning Dike, Phillips, and the time
records was upsetting to Slay. Slay considered that Dike's
talking to Phillips in such a manner that she became upset
and cried was uncalled for. Slay discussed the matter with
Division Superintendent Haynes.17 Slay told Haynes of the
circumstances of the "time" incident, that he (Slay) thought
it was uncalled for, that it had gotten to the place where he
had trouble getting along with Dike, and that he felt it was
too difficult for him (Slay) to supervise Dike. Haynes
agreed with Slay that the incident was uncalled for.
Slay was unable to speak to Manager Johnson about the
"time incident" on Monday because Johnson was out of
town. Johnson returned to the office in Tyler within the
next day or two. At that time Slay spoke to Johnson about
Dike and the "time incident." Slay told Johnson that Dike
was argumentative and indignant when he (Slay) had told
Dike about the way Dike had talked to Phillips. Slay asked
Johnson if there were anything that Johnson could have
17 Haynes , it appears , just happened to be in Tyler on this date.
is The facts are based upon a composite of the credited aspects of
Dike's, Slay's, and Johnson's testimony , and the logical consistency of all
the facts . As indicated previously , I found Dike, as a witness , to appear to
build his case with respect to emphasis and with respect to remarks
attributed to Johnson . Thus, I do not credit that Tohnson had earlier
Dike do so that Dike would not be under Slay's supervision.
Johnson and Slay were in agreement that they did not like
the course of events and that they should talk to Dike to see
what his reactions were.
Before talking to Dike, Johnson decided that it would be
beneficial to confer with Division Manager Wiggs. Wiggs,
as a supervisor, had worked with Dike in the past, and was
Johnson's supervisor at the time. Johnson tried to contact
Wiggs and finally did so on Thursday. Johnson and Wiggs
discussed the problem concerning Dike. Wiggs told
Johnson to weigh the facts and to discuss the matter with
Slay. Wiggs told Johnson that he would rely on Johnson's
and Slay's judgment.
Around 3 p.m. on Thursday, January 15, 1970, Johnson
met with Dike, Slay, and Bruner in Johnson's office.18
Johnson was behind his desk and Slay, Bruner, and Dike
were seated on the other side of the desk. Johnson had the
time report involved in the question of Dike's hours for pay
in his hand. Johnson led off the conversation by saying that
they had a situation about the time report that had to be
discussed, that he understood that as a result of the time on
the report that Dike had jumped on Frances Phillips, and
that they could not have this.
Dike told Johnson that he had not jumped on Frances,
that he had merely told her that if she had come to him with
the time question that they would have straightened it out
and there wouldn't have been a problem, and that Frances
had said that she did not have to come to Dike, that she
could go to Slay or Jerry. Johnson asked Dike if he had
talked to Phillips again. Dike told Johnson that he had
talked to Phillips a second time . At this point Johnson
pointed his finger at Dike and remarked that Dike should
be careful of what he said. Dike told Johnson that he had
told Frances on Monday evening that the problem had
been straightened out, that he might get pay for the time
and that he might not.
Johnson told Dike that this and the number of hours on
the time report without discussion thereof with his
supervisor were indicative of Dike's attitude. Johnson told
Dike that they could not tolerate this and that if Dike's
attitude remained the same, it appeared that the best thing
would be a separation between Bobby Dike and United
Gas.
Dike looked at Slay and said "Slay, I thought we got that
time straightened out. You told me to put it down on the
next sheet." Dike also related that he had been told that he
would get paid for the 2 hours.
Johnson stated that this was not what they were talking
about, that they were talking about the principle of working
through his lunch hour without discussing with his
supervisor during the day about taking time off so that
overtime would not be carried without authorization, that
this was wrong for Mr. Dike and for any other employee.
Johnson told Dike that the hour would not hurt United Gas
and that it would not hurt Bobby Dike. Johnson told Dike
that an employee has sufficient time sometime between his
impliedly threatened Dike with a remark of not being indispensable. Nor
do I believe that Johnson, in the discharge conversation , indicated to Dike
that the question of Dike's union activity was a reflection upon Johnson.
This alleged remark , it is noted , was not included in Dike 's pretrial
affidavit . I discredit Dike's testimony which is inconsistent with the facts
set forth herein.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
normal scheduled lunch hour and normal scheduled
quitting time to check with his supervisor about time off or
overtime . Dike told Johnson that the principle of it was why
he wanted his 2 hours.
Dike and Johnson then specifically discussed Dike's
hours of work for Tuesday and Wednesday, January 6 and
7, 1970. Discussion was held as to callout time and the fact
that Slay had had Dike come in early on Wednesday.
Agreement was reached that Dike deserved pay and would
be paid for the 18 hours claimed on Tuesday.
During the discussion as to time , Johnson stated:
You mean to tell me that we called you out this
morning at 6;00 o'clock and you made that call
immediately upon receipt of it, and you worked from
6:00 o 'clock in the morning until 10:00 o 'clock at night
and you didn't stop and have either lunch or supper?
Dike replied that this was correct , that the last time he ate
was the night before Tuesday . Dike asked Johnson if he
were insinuating or saying that he hadn't worked through
the dinner hour. Johnson told Dike that he wasn 't saying
that.
Dike asked if he were being fired for working through his
lunch hour . Johnson told Dike that the principle of working
through lunch hour without authorization showed his
attitude toward the Company and that this plus jumping on
Phillips for going to her supervisor and discussing Dike's
time ticket was the straw that broke the camel's back. Slay
then told Dike that the reason he was being fired was his
attitude . Johnson then told Dike that was what they were
getting at,
Johnson told Dike again that the principle of working
through his lunch hour without authorization showed his
attitude toward the Company. Dike told Johnson that this
had been common practice for years , that where you had to
so work you did, and that you were paid for such work.
Slay told Dike that the problem was his attitude, that
during the last 2 weeks he (Dike) would not get out of the
office early in the morning . Dike told Slay that he had been
out of the office early in the morning every day for the
current week, that he knew this for a fact . Slay told Dike
that he had come in three or four times on Monday or
Tuesday. Dike asked if that wasn't the day that he had been
working on a "Servel" refrigerator . Slay said that he
believed that it was that time because he remembered
Dike 's asking about a test instrument . Dike related three or
four instances wherein he had to come into the shop to get
Eddie to help him move the "Servel" refrigerator, etc.
Slay told Dike that the problem was Dike 's attitude.
Johnson again repeated that the principle of Dike 's working
through the lunch hour without later taking time off or
obtaining authorization for overtime reflected an improper
attitude toward the Company.
Slay told Dike that both he (Slay) and Bruner were Dike's
bosses . Dike looked at Bruner and said, "Have you ever
gave me any orders that I didn't obey? How about them big
meters when you come and asked me to get them?" Dike
was referring to an incident that occurred about 2 months
prior to the time of the conversation . Bruner told Dike that
he had not refused orders , that he had done a real good job.
Dike asked Slay if he (Dike ) had ever refused any orders
from Slay . Dike then asked Johnson if Johnson were firing
him or was Slay firing him. Johnson told Dike in effect that
Slay was firing Dike , that Slay was Dike 's direct supervisor.
Dike asked Johnson if Johnson were firing him if Slay
didn't say so. Johnson turned to Slay and asked Slay what
he thought about the matter. Slay told Johnson that he
thought that they had gone as far as they could with the
matter . Johnson told Slay that he agreed with him . Johnson
then told Dike that they were just going to have to part
ways, that they were going to have to separate, that he
thought it would be in the best interest of both Dike and
United Gas if Dike did not work there anymore.
Dike turned to Slay and told Slay that Johnson had said
that it was "kind of up to you." Dike said to Slay, "Let's go
get some coffee and talk about this thing . Maybe we can
straighten it out ." Slay told Dike that he was through with
him, that he would be glad to go and drink coffee with him
but that it wouldn't change his opinion.
Johnson asked Dike if he wanted his "time" today. Dike
told Johnson in effect that he did, that he understood he
was supposed to get paid up to the time the check was given
him. Johnson told Dike that his regular check was already
in the regular process of preparation and mailing and asked
if it wouldn't be all right to just give him a check for what
was due thereafter. Dike told Johnson that this would be
fine.
Dike asked Johnson and Slay if they would give him a
good recommendation for another job. Slay and Johnson
indicated that they would give him a good recommendation
and even send him copies of the recommendation . Slay told
Dike that they would stick to the facts, that they would not
try to intentionally hurt him, that he (Dike) had a lot of
abilities and capabilities , and that the fact that he and Slay
had problems in the area of supervision did not mean that
the same problems would exist at another company.
Dike asked if the Company could show on his records
that he had quit instead of having been fired . Johnson and
Slay agreed to handle the discharge in such a manner.
Johnson asked Dike what he wanted them to tell the men.
Dike said, "Just tell them I quit ." Bruner remarked in effect
that it wasn't really any of the other employees' business to
know about the matter.
Dike asked Johnson if the real reason for his discharge
wasn't union activity . Dike told Johnson that they (the
Company) had the cards stacked against him before he had
come in, that there was no use in trying to convince him
that he was being fired for working through his lunch hour,
that everyone had done that at one time or another.
Johnson told Dike that he was not being fired for union
activity , that the reasons were the principle of working
through the lunch hour without later taking time off or
getting authorization for overtime and his attitude . Johnson
told Dike that he hadn 't stacked the cards against Dike,
that he wouldn't stack the cards against Dike.
Instructions were left for Dike's termination check to be
prepared . The group then went out and had coffee. Later
Dike returned , got his check , and left.
Contentions
Conclusions
As indicated , the General Counsel contends that the
UNITED GAS DISTRIBUTION CO.
Respondent discharged Dike on January 15 because of his
union activity. The Respondent contends, in effect, that
Dike was not discharged because of union activity but
because his attitude had made him difficult to supervise
and that this and the "time incident" triggered a decision to
discharge Dike.
Considering all of the facts, I note the following.
The credibility resolutions concerning certain aspects of
Dike's testimony essentially cripple the major arguments of
discriminatory motivation. The credited facts as a matter of
evidentiary weight reveal that a preponderance of the
evidence supports the Respondent's contended defense and
likewise reveal an insufficiency of facts to support General
Counsel's contentions of a discharge for discriminatory
reasons. In sum, I am convinced, and conclude and find,
that the preponderance of the evidence reveals that the
Respondent discharged Dike on January 15, 1970, for
cause, because of its problem in supervising Dike.
Accordingly, it will be recommended that the allegations of
discriminatory conduct in the discharge of Dike in violation
of Section 8(a)(3) and (1) be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section iii,
above, occurring in connection with the Respondent's
operations described 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 has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. United Gas Distribution Company, the Respondent,
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Oil, Chemical and Atomic Workers International
Union, AFL-CIO, the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed by Section 7 of
the Act, the Respondent has engaged in unfair labor
practices violative of Section 8(a)(1) of the Act.
4. The aforesaid acts are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER19
Upon the foregoing findings and conclusions and the
entire record and pursuant to Section 10(c) of the Act, it is
233
recommended that the Respondent, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Interfering with , restraining, or coercing employees in
the exercise of their rights to self-organization by promises
of benefits.
(b) Coercively interrogating any of its employees as to
their or other employees' union activities or desires.
(c) In any like manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Post at its plant at Tyler, Texas, copies of the attached
notice marked "Appendix." 20 Copies of said notice, on
forms provided by the Regional Director for Region 16,
after being duly signed by Respondent's authorized
representative, shall be posted by it 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 the Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 16, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.21
IT IS FURTHER ORDERED that the allegations of the
complaint not specifically found herein to constitute
violations of the Act be dismissed.
19 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 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
20 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 be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
21 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify the Regional Director for
Region 16, in wasting, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate any of our
employees as to their or other employees' union
activities or desires.
WE WILL NOT interfere with, restrain , or coerce our
employees in the exercise of their rights of self-
organization by promises of benefits.
WE WILL NOT in any like manner interfere with,
restrain , or coerce our employees in the exercise of their
rights guaranteed in Section 7 of the Act.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
UNITED GAS DISTRIBUTION This notice must remain posted for 60 consecutive days
COMPANY from the date of posting and must not be altered, defaced,
(Employer) or covered by any other material.
Any questions concerning this notice or compliance with
Dated By its provisions may be directed to the Board 's Office, Room
(Representative ) ( Title) 8A24, Federal Office Building, 819 Taylor Street, Fort
Worth, Texas 76102 , Telephone 817-334-2921.
This is an official notice and must not be defaced by
anyone.