United Gas Pipe Line Co.

National Labor Relations Board - Board Decisions

Dec 30, 1971

194 N.L.R.B. 765 (N.L.R.B. 1971)

UNITED GAS PIPE LINE CO. 765
United Gas Pipe Line Company and Pennzoil Pipeline
Company and Oil, Chemical and Atomic Workers
International Union, AFL-CIO. Case 23-CA-3826
December 30, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On August 16, 1971, Trial Examiner Thomas F.
Maher issued the attached Decision in this proceed-
ing. Thereafter, Respondents filed exceptions and a
supporting 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
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
brief 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 Respondents, United Gas Pipe Line Company
and Pennzoil Pipeline Company, Houston, Texas,
their officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
supervisory personnel in several allegations of the original
Complaint. Respondent orally interposed its denials to
these added and revised allegations.
Pursuant to notice a trial was held before me at Houston,
Texas, where all parties were present, represented, and
afforded a full opportunity to be heard, present oral
argument, and file briefs. Briefs were filed by General
Counsel and Respondent on June 14, 1971.
Upon consideration of the entire record, including the
briefs filed with me, and specifically upon my observation
of each witness appearing before me,i I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE NATURE OF RESPONDENT'S BUSINESS
United Gas Pipe Line Company and Pennzoil Pipeline
Company are Delaware corporations maintaining their
principal offices in Houston, Texas, and are engaged in the
interstate and intrastate transmission, respectively, of
natural gas. United Gas Pipe Line is likewise engaged in the
interstate sale of the same products. During the 12-month
period preceding the issuance of the Complaint herein the
corporations have received in excess of $50,000 from the
sale of gas piped directly to points outside the State of
Texas.
Both corporations are affiliated businesses with common
officers, ownership, directors, and operators, and they
constitute a single, integrated business enterprise. The said
directors and operators formulate and administer a
common labor policy for the Companies and their
employees. Upon the foregoing admitted facts I conclude
and find both corporations to be a joint employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is conceded and I accordingly conclude and find Oil,
Chemical and Atomic Workers International Union,
AFL-CIO , to be a labor organization within the meaning of
Section 2(5) of the Act.
THOMAS F. MAHER, Trial Examiner: Upon a charge and
an amendment thereto filed on December 7, 1970, and
March 30, 1971, respectively, by Oil, Chemical and Atomic
Workers International Union, AFL-CIO, herein called the
Union, against United Gas Pipe Company and Pennzoil
Pipeline Company, herein referred to collectively as
Respondent, the Regional Director for Region 23 of the
National Labor Relations Board, herein called the Board,
issued a Complaint on April 6, 1971, on behalf of the
General Counsel of the Board, alleging violations of
Section 8(a)(1) and (3) of the National Labor Relations Act,
as amended (29 U.S.C., Sec. 151, et seq.), herein called the
Act. In its duly filed answer Respondent, while admitting
certain allegations of the Complaint, denied the commis-
sion of any unfair labor practice. Subsequently, at the trial
of the matter before me the Complaint was amended by the
addition of an allegation of interference, restraint, and
coercion, and by the substitution of names of Respondent's
III. THE ISSUES
1. Interrogation of employees as interference, restraint,
and coercion.
2. Threats of more stringent transfer and leave policies
as interference, restraint, and coercion.
3. The discriminatory circumstances of Byron Griffith's
failure to receive a transfer.
IV. THE UNFAIR LABOR PRACTICES
A. Union Activity
Union interest and activity throughout the Company
over recent years appears to have been sporadic. Thus in
December 1967 the Union was a party to an election
involving employees in the Houston area ; in January 1968
in elections in the Lafayette and New Orleans, Louisiana,
areas; in February 1968 in the Tyler, Texas, area; and in
1 Cf. Bishop and Malco, Inc, 159 NLRB 1159, 1161
194 NLRB No. 131
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 1968, according to Respondent's Employee Relations
Representative Joe A. Hams, it was learned that the Union
was carrying on an organizing campaign in the Shreveport
division. An organizing campaign was in progress in the
Houston and Beaumont areas during November 1970
among employees of United Gas Distributing Company,
not a party to this proceeding; and finally Board elections
were held among Respondent's employees in the Shreve-
port, Louisiana, and Victoria, Texas, areas in May 1971,
following the filing of a petition with the Board's Regional
Director on February 16, 1971.
In none of the foregoing proceedings nor as a result of
any organizing campaign has the Union been selected by
employees of the Respondent as their bargaining represent-
ative. The Union does represent employees of United Gas
Distributing Company, however, and collective agreements
were executed there in April 1970, a fact which relates to
conversations detailed hereinafter?
In the conduct of its labor relations Respondent is
represented by its director of personnel, W. D. Parks, who,
with the other members of his staff, is responsible for
handling matters which relate to the various elections, such
as eligibility, supervisory responsibility, etc. Thus Parks
testified, for example, that during 1967-68 and in
subsequent union campaigns it was he who arranged
meetings with the Company's supervisors at which they
were instructed by the Company's attorneys as to their
"permissable and nonpermissable conduct in the context of
union campaigns."
B. Respondent's Chain of Command
For a fuller understanding of what'has transpired herein
an outline of the Company's hierarchical order, as it relates
to incidents herein, and to the time at which they occurred,
would be in order. It follows:
James G. Harris-Vice President, Pennzoil Pipeline
J. H. Echterhoff-Vice President in Charge of Trans-
mission Operations
George A. Loker-General Superintendent of Gas
Plants
C. D. Long-General Superintendent in Charge of
Compressor Stations
W. D. Parks-Director of Personnel
Joe Harns-Employee Relations Representative,
Shreveport Division
Mickie McGuire-Employee Relations Representative,
Victoria Division
Willard Elston-Personnel Administrative Supervisor
Luther Thrash-Division Personnel Supervisor
H. W. Saunders-Division Operating Superintendent
Shreveport (Previous Title: General Manager of
Shreveport Division)
James Norris-District Operating Superintendent,
Tyler
Barton-Superintendent, Carthage
Clyde Martin-Superintendent, Edna
John Neal-Superintendent of Compressor Facilities,
Goodrich
Leonard Faribee-First Operator, Compressor Station,
Goodrich
Lee Seltzer-Crew Foreman, Compressor Station,
Goodrich
The foregoing, based upon stipulation and undisputed
evidence, is not intended to represent either the complete or
a detailed executive and supervisory structure of Respon-
dent's operations but relates only to that segment of the
operations which are involved herein.
C. The Refusal to Transfer Byron Griffith
Byron Griffith has been employed by the Respondent for
the past 21 years. Prior to January 1970 he was employed at
the Respondent's Carthage, Texas, installation as a
dehydration plant operator. Before this he had worked, in
all parts of the gas plant and was familiar with all of its
operations. In the performance of his duties Griffith has
always had the full confidence of his supervisors and
throughout the record here he was repeatedly characterized
by them as an excellent worker and a respected individual.
On January 25, 1970, as a consequence of operational
changes at Carthage, the jobs of Griffith and approximately
13 other employees were declared surplus. Griffith was
accordingly transferred to Respondent's installation at
Lafayette, Louisiana, 350 miles distance from Carthage, as
a relief operator in the Compressor Station there, at the
same rate of pay and grade. This action was described by
Company officials as a lateral transfer, as distinct from a
promotion.
Griffith's transfer from Carthage was not without his
vigorous and continuing protest, not only because it created
serious personal problems for him3 but more particularly,
from a personnel viewpoint, it had been accomplished by a
failure to credit him with work in a higher grade
qualification which he claimed and still claims that he had
performed. Thus it was Griffith's claim that in 1966 or 1967
he had been deprived of credit for work that he had
performed as a helper in a higher classification on a
temporary basis at the request of the plant superintendent.
He first brought this claim to Respondent's attention while
still employed at Carthage, thereafter when he was declared
surplus, and again in his efforts to return to Carthage.
Respondent's employee relations representative, Joe Har-
ris, admitted that records of this sort of temporary
assignment are not complete. He testified to Griffith's
persistence in his claim and described several reviews he
had made of Griffith's personnel files and records, on one
occasion with Griffith's assistance. The claimed time could
never be verified from these reviews of company personnel
records and the matter has still not been resolved to
Griffith's satisfaction. Respondent, however, rests on its
decision that its records do not support the claim.
Without attempting to resolve this particular issue which
is, at best, tangential to the basic issues of this case, it would
2 The foregoing is a summary of stipulations of the parties and the operated seven tractors. He also raised chickens commercially, maintaining
undisputed testimony of employee Lloyd Hendershot and Employee a 14,000 capacity broiler house. In addition to this Griffith maintains 150
Relations Representative Joe Harris head of cattle on his land and works a considerable amount of timber land
3 Griffith had lived in Carthage with his family since 1935. He owned a as well. At the present time Griffith's oldest son is living at home and takes
substantial amount of acreage in the vicinity of Carthage and in working it care of the property and the business in his absence.
UNITED GAS PIPE LINE CO. 767
appear that the several searches made of the records in an
effort to satisfy Griffith were but useless gestures. Harris'
testimony discloses that if an employee is serving on some
job outside of his classification that fact is "not necessarily"
kept on any timesheet or report because "some of our jobs
have a tendency to lap over as far as duties are concerned,
and consequently we don't keep track of what a man does
his entire day, as far as his work is concerned." Thus it
would appear obvious that no amount of record checking
could possibly locate a record of Griffith's claimed
overtime when it has not been established that such records
are even made in the first instance.
Upon taking up his duties at the new station in Lafayette,
Louisiana, Griffith devoted his efforts to returning to
Carthage. He remained at Lafayette only until June 22,
1970, when he was promoted and transferred from relief A
operator, to relief AA operator at Goodrich, Texas, a
distance of 108 miles from Carthage. This transfer was
designated as a promotional transfer, as distinct from a
lateral transfer such as the one which originally brought
him from Carthage to Lafayette. In point of time Griffith
had earned 5 months of "Service In Occupation" (SIO) at
Lafayette before his promotional transfer to Goodrich.
Griffith was still determined to return to Carthage
because of the continuing personal necessity. He learned
that an employee of long standing there, Ralph Minnigh,
was in the terminal stages of lung cancer and that the job he
held would be shortly declared vacant. Early in August
1970 Griffith went to his superior, James Neal, the
superintendent of compressor facilities at Goodrich, and
told him that the job of load tester was coming up at
Carthage. Stating that it was classified at the same level as
his present job, Griffith asked, if it would be possible for
him to transfer. Neal's response was that it would not be
possible. Griffith, however, consulted with James Norris,
the Tyler district operating superintendent, shortly thereaft-
er on September 10, telling him of his urgent personal need
for returning to Carthage and of the fact that he had
originally been surplused out of Carthage as a result of
what he claimed to Norris was a failure to receive proper
work credit. He further explained to Norris that he had
accepted the promotion to Goodrich so that he would be
that much nearer to Carthage. Griffith then reminded
Norris that a vacancy was expected to occur at Carthage as
a consequence of Minnigh's terminal illness. This job,
Norris testified, Griffith was "well qualified" to fill. Norris
then told Griffith that he had personally spoken of him with
Mr. Barton, the Carthage Superintendent, and "at the first
opportunity that he would like if something developed that
we could, he would like to have Mr. Griffith back in the
Carthage plant, due to his certain abilities." Then,
according to Norris, he told Griffith he would "do
everything [he] possibly could to help him and in any way
[he ] could." In this testimony Norris added the phrase, "in
line with Company policy." This qualification raises a
credibility question on an issue which permeates the whole
Griffith incident.
To this point I have credited Norris, particularly as his
testimony is corroborated by Griffith. Griffith testified on
this point, however:
And then we agreed that I should be able to put in a
letter and he told me to write the letter and give it to Mr.
Neal, and told Mr. Neal-Mr. Neal was standing there,
and he told Mr. Neal, you send it directly to me and I'll
take care of it.
Norris specifically denied either having told Griffith to put
in a written transfer request or having told Neal to process
one, and, as noted above, emphasized the qualification of
"Company policy."
I have studied the record carefully to assess the several
basic contradictions that have arisen in this case, and I have
been particularly attentive to the demeanor of those
appearing before me. And the record will show that I
indulged in questioning of witnesses to a greater extent than
is my usual practice, for the same purpose. Out of all of this
I am persuaded, and I will attempt to demonstrate in
further detail hereafter, that a conscious effort has been
made by Respondent' s witnesses to classify Griffith's case
as one covered by "Company policy," thereby establishing
its defense to the violation alleged. This characterization I
deem to be self-serving and in the nature of a "boot strap"
approach. For these reasons, and upon my observation of
all witnesses, I reject that portion of Norris' testimony that
includes the phrase "Company policy" and the implications
which flow from it. Instead I accept Griffith's account, as
quoted above, and conclude and find that Norris initially
told him to file a written request for a transfer to a job for
which all of management appears to have considered him
qualified to perform.4
On September 23, 1970, Griffith prepared his request
letter and gave it to Neal who, in turn, passed it on with a
signed notation at the bottom, as follows:
Please help this man if you can as he is a very good
hand.
J. T. Neal
Thanks
As Griffith's case progressed this letter accumulated o.k.'s
over the signatures of General Superintendent of Gas
Plants George Loker and Division Operating Superintend-
ent H. W. Saunders, and it formed the basis of a series of
correspondence to be discussed hereafter and which
Respondent claims to be dispositive of the case.
Although he knew that a written request had been made
Norris did not see it until some time thereafter. He was
aware, however, that the subject was under active
consideration. Sometime later, on approximately October
15, according to Griffith whom I credit, Norns came to him
and told him he had the job at Carthage. And when Griffith
asked Norris when he would be moving he was told that it
would be a matter of days. On the strength of this Griffith
arranged to have his young daughter, who had then
finished her first 6 weeks of school, transferred from the
school at Goodrich to the one at Gary, near Carthage. She
and her mother returned to Carthage over the following
weekend. Shortly after his personal plans had been thus
accomplished, Griffith happened to meet Joe Harris at the
Goodrich plant and talked with him about his pending
transfer. Harris raised a doubt that Griffith would get the
4 The testimony of Norris, Joe Harris, Saunders, and Loker
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job, saying that it might not develop. Within the week
Norris called Griffith at the plant and told him that he
would not be getting the Carthage job "on account of too
much union activity going on and too many cards signed."
At another pomt in his testimony Griffith quoted Norns as
also saying at this time that "he was afraid if he gave me
that job it would make the Union stronger." ,5 In this respect
Harris testified that during this particular period "interest
was high in union activity, and we did talk in nearly every
safety meeting about it. "
Thereafter on November 9 a safety meeting was held at
Goodrich and among those representing management were
Joe Harris and Norris. Following this meeting a meeting
was held in the nearby machine shop with just Goodrich
personnel present for the purpose of discussing local
problems with them. In the course of this meeting Norris
told the men that if it had not been for union activity
Griffith would have gotten thejob at Carthage.6 Following
the meeting Harris, and then Norris, engaged Griffith in
conversations on the same subject. Griffith repeated his
original contention to Hams that he would not have been
"surplused out of Carthage" in the first place had he
received the proper work credit (supra), and Harris repeated
to him the reasons why it could not have been done. This
portion of the conversation appears to have ended in a
standoff. Griffith then continued his conversation with
Norris, out of Harris' hearing, and Norris again told him
that the Union was the cause of his not getting the job,
Griffith testifying:
And after the meeting broke up he told me that the
Union kept me from getting that job. They would have
given that job if it hadn't been-they could do just as
they damn pleased if it wasn't for the Union. So that's
about the way the situation stands?
Griffith is still employed at the Goodrich station.
D. The Questions and Threats to Employees
In addition to the alleged discrimination against Byron
Griffith it is also alleged that Respondent in certain
respects unlawfully interrogated and threatened its employ-
ees. The findings relating to these allegations follows:
Union meetings were being held with Pennzoil employ-
ees, a division of Respondent, beginning in August 1970.
Among those attending such meetings was employee
Ambrose O'Gorman, employed at the Edna, Texas, station.
In mid-October Clyde Martin, the Edna plant superintend-
ent, engaged O'Gorman in a conversation in which he
asked O'Gorman about a union meeting and when and
where it was scheduled to be held. Martin asked if he would
be permitted to attend and then gave O'Gorman a number
s The foregoing is based upon Griffith's credited testimony. I rely on
Harris' account only to the extent that it corroborates Griffith. Thus Harris
corroborates the conversation about Griffith's hopes of a transfer, sending
his family back to Carthage, and the statement he made to Griffith that the
job might not develop, having learned from Norris on October'26 that the
request had actually been turned down
I do not accept Norris' denial of the statements attributed to him by
Griffith, nor do I accept his testimony that he told Griffith when he spoke
to him by telephone on October 24 that the rejection of the request was
based on Company policy determined by a vice president
Neither do I find significant Norris' testimony that he was unaware of
Griffith's activity in the Union; for the statement attributed to Norris
referred not to Griffith's activity but to union activity among the
of prepared questions he would like to have raised at the
meeting. These questions included an inquiry as to how the
Union would train employees to upgrade their qualifica-
tions and one as to what would be the policy on releasing
employees hired as replacements during a strike. There
were several other questions of like nature which O'Gor-
man could not recall.8
Employee Lloyd E. Hendershot credibly, and without
contradiction, described a meeting at Edna, Texas, on
September 8 with a representative of the Company's
insurance carrier, a Mr. Ragsdale of the Company, and a
personnel representative, Mickie McGuire, who holds a
position identical to that of Joe Harris, discussed earlier.
This meeting involved a claim incurred by Hendershot
from a recent work injury. It developed that, the settlement
was not completely satisfactory to him. At an intermission
in the conference Hendershot discussed with McGuire
privately the merits of the settlement being offered to him,
telling McGuire he would like to know where he stood and
if he would jeopardize his job by accepting the settlement.
Hendershot credibly recounts McGuire's reply:
He told me he didn't know, you kind of have to think
about those things, you know, think them over. He said,
well, he said, you know that we know you are for the
Union. He said, you know you did sign one of those
little cards when they were passed out, didn't you? Of
course I told him that I did. And then we had a little
more conversation and Mickie wanted to drop it.
Again, on cross-examination, Hendershot amplified
McGuire's statement to him:
He told me that I would have to think it over, just to
see where I stood. And I asked him how in the hell did
he mean that. He said, well, you know we know you're
for the Union. He said, you signed into one of those
little cards that was passed out, didn't you? And I said,
you're damn right I signed one of them. I was for the
Union last time, and I'm for it this time.
Hendershot also credibly described a safety meeting held
at Edna on November 3 at which McGuire spoke to the
men and mentioned a recently executed union contract
involving employees in the Beaumont area. McGuire told
them that he felt sorry for them if they went union, stating
that the Beaumont employees were getting less under the
contract than they had before.
Later in the meeting Vice President James Harris spoke
to the men. Included in his remarks was a statement that at
present when the men were given personal time off they
were paid for it, but that if they went union then under a
employees This, on Griffith's testimony, I find that he said.
6 The credited testimony of Griffith and Employee Clyde Jordan.
I In crediting Griffith's account of what Norris said concerning him to
the men at the meeting I also rely upon Employee Jordan's credited
testimony corroborating Griffith's account I reject Norris' several denials
of statements attributed to him.
A minute of the meeting in the machine shop was also introduced to
establish that the subject of Griffith's transfer was not discussed. This
minute establishes only that the subject was not recorded. It does not
follow that this failure to record the subject in the minutes proves, in and
of itself, that the subject was not discussed.
8 The credited testimony of Employee O'Gorman.
UNITED GAS PIPE LINE CO. 769
contract if they took personal time off they would be
docked for it .9
Employee Ben Flores credibly described his employment
interview with McGuire on August 6, 1970, conducted in
the presence of two unidentified management representa-
tives. McGuire read questions to Flores from a prepared
sheet. Among the questions asked were how he felt about
the Union, and whether he would be for a union or not. In
the course of this interview McGuire told Flores that the
Company would be better off without a union, that the
Company had everything to offer, and that the Union could
not help them any more.10
Elsewhere in this decision we have referred to a safety
meeting at Goodrich in early November 1970. At this
meeting Joe Harris, identified elsewhere as employee
relations representative, spoke to the men of what they
could expect if they had a union. He mentioned that at one
time one of the districts of the Company had a union and
the employees let it drop because they had less benefits
than the other employees. He then went on to say that if the
men were to go union they would not be able to transfer in
or out of their district, citing the Houston district where this
had already occurred. Following the meeting was the
meeting in the machine shop, earlier described. Here
employees Nixon and Hawthorn asked Operations Supervi-
sor Norris about their pending transfer and promotion,
respectively. It was at this time that Norris told the men
that the reason Griffith did not get his transfer to Carthage
was because of union activity. He then told each of the two
men that he would look into their cases and proceeded to
other business of the meeting."
E. Respondent's Explanation for the Failure to
Transfer Byron Griffith
In support of its contention that Byron Griffith's request
for transfer to Carthage was dictated by Company policy
Respondent refers to its personnel policy manual and
specific provisions therein which would appear to cover
Griffith's case. Thus I am referred to the following
provisions, among others.
TRANSFERS
4.1 A transfer is the movement of an employee to fill
a vacancy for which he is qualified at his same or lower
job level.
4.2 Procedure for handling employee requests for
transfer:
4.21 Employees requesting transfers shall advise
their immediate supervisors in writing of the type
of work and location which they desire and the
reason for their request. This information shall be
forwarded to the Division Operating Superintend-
ent or General Office Department Head, through
the line of supervision, with favorable or adverse
recommendations or comments of the supervisors
9 The foregoing incidents based upon Hendershot's credited testimony
were not disputed at the trial
20 The credited, undisputed testimony of Flores.
11 The foregoing is the credited testimony of employees Clyde Johnson,
Ronald Nixon, and Griffith. Harris testified in explanation of his statement
on transfers that he was simply illustrating to the men how the existing
contracts between the Company and the Union operated as to transfers.
He claims he was referring to a branch of the Company that had been
regarding the request for transfer. The Division
Operating Superintendent or General Office
Department Head shall have complete informa-
tion developed regarding the request-such as
doctor' s statements when the request is for
reasons of health. Then the request with all such
additional information shall be forwarded to the
appropriate General Superintendent, Vice Presi-
dent or other executive. The executive shall advise
the Division Operating Superintendent or General
Office Department Head whether the request has
been approved or disapproved. Instructions shall
be given to advise the employee of such approval
or disapproval and to inform him whether the
employee or company will pay moving costs, if
there is an opportunity to honor his request. Then
the entire file regarding the requests transfer shall be
sent to the General Office Personnel Department.
4.22 Only those requests that have been approved
prior to the date a vacancy occurs shall be considered
in filing vacancies.
4.3 Transfers will be made at company expense, and
the employee will be allowed personal expenses in
accordance with company policy under the following
circumstances:
4.31 Non-Compulsory Transfers Employees may be
transferred, with their consent, in accordance with
the needs of the company or to improve operating
conditions.
4.32 Compulsory Transfers Employees must accept
transfers or be terminated when any one of the
following conditions exists:
4.321 They are surplus in their job or location,
such transfers to be governed by procedure for
handling surplus employees.
4.322 Harmony is disrupted by personal
conflicts.
4.323 The employee is not performing his work
satisfactorily.
4.324 There are other compelling reasons.
4.33 Transfers Requested by Employees
4.331 Transfers from a location that adversely
affects the health of an employee or a member of
his immediate family.
4.332 Transfers from a type of work that
adversely affects the health of the employee.
4.34 Transfers covered by 4.3 shall take prece-
dence over filling vacancies by promotion.
4.4 Transfers requested by the employee for other
reasons will be at employee' s expense . These will
ordinarily be approved if the employee is performing his
present job satisfactorily and has been in his present job
and present location for a minimum of one year. The
one-year time limit may be waived in exceptional cases and
"spun off" to form a separate corporation. I do not deem Hams'
explanation adequate to rebut the testimony of the employees as to his
statement on transfers.
I likewise reject his denial of statements concerning Griffith attributed
to him It is to be further noted that Norris also admitted that Harris at this
meeting "did discuss policies and also mentioned union activities and
compared the contract of the Distribution to some of our policies."
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will be waived in cases where the employee entered his
present fob and location due to a surplus move.
4.41 When a vacancy occurs that would allow
consideration of an approved request for a
transfer at the employee's expense, a list of
employees qualified to be promoted to fill the
vacancy shall be developed, and the employee
requesting the transfer shall be placed on the list
in accordance with his Service-in Occupation at
the level from which the promotion would be
made. The vacancy will then be offered to the
qualified employees in the order of their Service-
in-Occupation.
4.42 Requests for transfer approved under 4.4
shall be cancelled when an employee accepts a
promotion or voluntarily accepts a transfer that is
not made for the convenience of the company.
[Emphasis supplied.]
In extended testimony concerning these provisions Respon-
dent's Director of Personnel W. D. Parks repeatedly
emphasized that the critical rule was 4.41, which provides
for the creation of an eligibility list of employees qualified
for transfer under the rules. From this list the candidate
with the greatest SIO (Service-in-Occupation) is first
offered the transfer, and if he refuses it then it is offered in
descending order to all on the list until one accepts.
Under the foregoing rule it was determined that Griffith
was not even eligible for inclusion on the eligibility list;
and, had he been eligible and had been included, his name
would never have been reached because the job at Carthage
went to an eligible on the list with more SIO than Griffith.
And the reason Griffith would not have been on the list in
the first place, according to Park's testimonial interpreta-
tion of the rules, was that by accepting a promotion to
Goodrich to get himself closer to Carthage Griffith had
waived the advantage that surplus employees would receive
under Rule 4.4, which eliminated the 1-year wait require-
ment.
No attempt was made to explain the limits placed on
those who "shall be considered in filling vacancies" by Rule
4.22 (supra).
F. Further Findings, and Analysis and Conclusions
A review of the testimony which relates to Griffith's
dealings with his supervisors to obtain a transfer to
Carthage and a review of the several items of correspondent
in which these same supervisors sought to effect this
transfer makes it abundantly clear that they anticipated
some positive action and not, as was ultimately determined,
the construction of an eligibility list on which Griffith's
name might or might not appear. These men whose names
appear among Respondent's managerial hierarchy-Loker,
Joe Harris, Thrash, Long, Saunders, Norris, Barton,
Martin, and Neal-were not neophites. Each one of them
was a seasoned veteran in the Company, presumed to be
fully aware of what was going on, especially in the area of
employee relations. At the initial stage of their connection
with Griffith's problem each one was disposed to assist him
12 The eligibility list prepared by the personnel department for which
Griffith was found ineligible was submitted in evidence as proof of its
in his efforts to transfer to Carthage. I do not believe that
these men, or any of them, intended merely to help Griffith
get his name on an eligibility list where, as it turned out, he
would have been in competition with 69 other employees
for the Carthage transfer, none of whom had been shown to
have requested a transfer as required by Rule 4.22.12
Assuming as I must the good faith of these supervisors
who sought to assist Griffith I am directed to internal
management considerations which suddenly make
"Company policy" the sole determinate of final action. -A
review of the channels through which Griffith's request
travelled to this final decision is in order.
When, at District Operating Superintendent Norris'
direction, Neal, superintendent at Carthage, forwarded
Griffith's September 23 request for transfer to company
headquarters he added his own endorsement-"Please help
this man if you can as he is a very good hand." As the letter
moved forward it accumulated o.k.'s over the signatures of
Shreveport Division Operating Superintendent Saunders,
and General Superintendent of Gas Plants George A.
Locker, who reports directly to Vice President Echterhoff.
As the request passed Luther Thrash, division personnel
supervisor, on October 1, he attached his own memo to C.
D. Long, General Superintendent in charge of Compressor
Stations. It stated as follows:
Attached is a request for level transfer received by Mr.
J. T. Neal from Byron Griffith. Mr. Griffith has only
been at his present location since June 22, 1970, but
since he was a surplus employee at the Carthage
Gasoline Plant it is felt that he should be given
consideration for this transfer. Will you please advise
regarding this request. [Emphasis supplied.]
This letter was sent, according to Saunders, Thrash's
superior in the division, at Saunders' direction.
Long, upon receiving the above, passed the file on to W.
D. Parks, director of personnel, on October 5, 1970, stating:
This is to give our approval to the attached level transfer
request to Carthage Compressor Station contingent upon
the advent of such a vacancy and the employee defraying
his own moving expense.
Because Mr. Griffith mentions the Carthage Gasoline
Plant as his second choice, this is sent by Mr. Loker for
his decision in that matter. [Emphasis supplied.]
Shortly thereafter, on October 14, Saunders, being fully
appraised that the exceptional nature of Griffith's transfer
required the approval of a vice president, sent the following
to Loker, Vice President Echterhoff's subordinate:
Attached is subject employee's request for a level
transfer from the Goodrich Compressor Station to
either the Carthage Compressor Station or Carthage
Gasoline Plant.
He, as a surplus Operator "D" at the Carthage Gasoline
Plant, accepted a level transfer to Compressor Relief
Operator "A" at Lafayette on January 25, 1970. On
June 22, 1970, he accepted a promotion to Compressor
Relief Operator "AA" at Goodrich and has been there
since.
It would be to the company's advantage if he could
transferred to the Carthage Gasoline Plant as a Loader-
implementation of Company policy
UNITED GAS PIPE LINE CO. 771
Tester to fill the vacancy that occurred with the death of
H. R. Minmgh.
Griffith is familiar with this type of work having been
temporarily promoted to that job on numerous
occasions while he was at the plant. In addition, he is an
expert on the repair of pumps.
M. C. Bowen, a Repairman at the Plant, is normally
charged with this responsibility but he is having health
problems and is frequently absent from work.
In view of the fact that Griffith has not been at his
present location for at least one year, together with his
having accepted a promotion since being declared
surplus, our company policy requires that a Vice-President
approves the transfer.
I have discussed this matter with Messrs. Long, Norris and
Barton and we are in accord that the transfer be approved.
If you are in agreement will you please discuss this with
Mr. Echterhoff and if he concurs, ask him to so indicate
and return this letter to me. [Emphasis supplied.]
A study of this letter from Saunders, who testified to his
complete awareness of Company policy affecting personnel
transfers, indicates one significant fact. At this point in time
he, and everyone else, was thinking in terms of transferring
Griffith-not just putting his name on a list. Thus Saunders
felt it would be to the Company's advantage "if he could be
transferred to the Carthage Gasoline Plant." And he also
understood that this transfer, not merely a determination of
eligibility, "requires that a Vice President approves the
transfer." And finally, he categorically states that
others-Long, Norris, and Barton-also "are in accord that
the transfer be approved." He does not limit their
acquiescence merely to Griffith's eligibility for transfer.
Up to this time, then, everyone up to Vice President
Echterhoff, according to Norris in reply to a question put to
him by me, has been agreeable to deviating from any
Company policy which would otherwise stand in Griffith's
way. And Echterhoff testified that he had in the past
approved deviations in Company policy. The climate in
favor of Griffith's transfer appears to have changed at a
given point; and this point is signalled by a penned
notation added to General Superintendent Long's October
5 letter to Personnel Director Parks approving the transfer.
This notation stated:
Insufficient time in job-request cannot be acted upon
until one year in job. Discussed with J. H. Echterhoff.
It was signed with the initials "W. E." At the hearing "W.
E." was identified as Willard Elston , a personnel adminis-
trative supervisor in the office of Personnel Director Parks.
Piecing together the testimony of Parks, Saunders, Loker,
and Echterhoff, i1 is clear what happened to Long's memo
of recommendation and to Griffith's chances for transfer
after Elston entered the picture. What occurred, according
to General Superintendent Loker, was that on October 5
the personnel section received Long's letter of October 5
addressed to Parks, and Elston, in Parks' vacation absence,
brought it immediately to Vice President Echterhoff's
attention, and without the knowledge of General Superin-
tendent Loker. Loker, it is to be noted, already knew of
Griffith's request independently and had placed his o.k. on
Griffith's letter. After Elston had brought the matter to
Vice President Echterhoff 's attention Echterhoff directed
him to get more facts. These facts were contained in the
letter of October 14 from Saunders to Loker and is set forth
above.
Sometime later Parks urged Loker that they meet with
Echterhoff on the Griffith matter, stating his feelings that
under, company rules Griffith should not be granted the
transfer because it would hurt the promotion or transfer
possibilities of other employees . On this note the two
officials met with Echterhoff and presented him the case,
buttressed with the facts contained in Saunders ' October 14
letter. Echterhoff, who admitted at the hearing to having
deviated from Company policy in the past, overruled the
recommendations of the operating officials and accepted
the recommendation of Personnel Director Parks that
Griffith should not be transferred. Griffith was notified.
What emerges from this welter of, interoffice byplay is
that as a consequence of this matter coming to the attention
of a minor functionary in the personnel department , Elston,
all of the responsible officials in the organization below the
level of Vice President , excepting only the director of
personnel , were overruled . Except for the context in which
the matter has arisen-an unfair labor practice
proceeding-the peculiarities of internal management
would be of no concern whatever . Here, however, I have
found upon the testimony of credible witnesses that
management representatives had stated that Griffith had
been deprived of his transfer because of union activity
throughout the organization . Such statements do not, on
their face , appear to square with personnel action
supposedly taken for reasons of Company policy. I find
that it is the source of this particular decision which is the
missing link in a chain of relevance-namely the personnel
department. It will be remembered that Employee Rela-
tions Representative Joe Harris had testified that "interest
was high in union activity, and we did talk in nearly every
safety meeting about it." Additionally, the record discloses
that in units throughout the Company representation
petitions had been or were being processed . Finally, it is
undisputed that Personnel Director Parks and his depart-
ment handled the labor relations problems of Respondent.
"Direct evidence of a purpose to violate the statute is
rarely obtainable." 13 Such purpose, therefore, "may be
established by circumstantial evidence." 14 These circum-
stances, as set forth herein, are no exception to this rule. I
am entitled , therefore , to make reasonable inferences based
upon the facts before me . Here I have ( 1) statements by
supervisors that Griffith was deprived of his transfer
because of union activity , (2) the responsible judgment of
every operating official involved , below the level of vice
president, that Griffith should get the transfer, not merely
be placed on an eligibility list, (3) the testimony of Norris
and the vice president that deviations from Company
policy had occurred in the past, (4) the provision in the
Company rules for exceptions to the transfer requirements
and (5 ) the initiation of successful opposition to the transfer
of Griffith by the very official who, with his department, is
responsible for the handling of labor relations of the
13 Hartsell Mills Co v N L R.B, 111 F.2d 291, 293 (C A. 4)
14 Corrie Corp. v NLRB., 375 F 2d 149, 152-153 (C A. 4), citing
NLRB. v. Link Belt Co, 311 U .S 584, 602, et al
11
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company and presumed to be aware of existing union
activity-Parks.
I am, of course, aware that Company officials who
testified qualified the assurances they said they gave to
Griffith by stating that the transfer was being recommend-
ed within the bounds of "Company policy." This qualifica-
tion I find upon my evaluation of their testimony to be after
the fact. Everything appearing in the exchange of
correspondence, as quoted above, plus the credited
testimony of Griffith, persuades me that prior to the entry
of Parks and his assistant into the picture no one
anticipated limitations of Company policy or rules. What
occurred in the testimony of these management witnesses
when they referred to Company policy appears to be
nothing more than a convenient closing of ranks in the face
of a fait accompli. I accordingly reject so much of the
testimony of Joe Harris, Norris, Saunders, and Loker as
suggests that they intended and stated to Griffith and to
those with whom they discussed the subject that the
recommendation of transfer was conditioned upon the
details of Company policy.
To properly and completely evaluate the basis for
Respondent's refusal to transfer Griffith I would rely not
only upon the statements made which linked the action to
union activity, and the inferences I have drawn from the
mechanics of the refusal, but also from other conduct
reported herein. Thus it has been found that during this
same general period of time, while union activity was
prevalent and was being discussed at nearly every safety
meeting, Respondent's supervisors busied themselves with
the union affairs of their subordinates. Plant Superintend-
ent Martin questioned employee O'Gorman about an
upcoming union meeting, and union policies; Employee
Relations Representative Joe Harris, in an employment
interview, asked employee Flores how he felt about a union
and whether he would be for it, reading from a prepared
form as he spoke; McGuire, in the course of an insurance
settlement discussion with employee Hendershot told him
to think over the merits of the settlement being offered,
reminding him he was, for the Union and had signed a
union card. In addition McGuire stated at a safety meeting
that in another branch of the Company employees under a
union contract were getting less than before, and Vice
President Harris stated at the same meeting that once under
a union contract personal time off with pay would cease.
And finally, there are the incidents already considered in
the context of Griffith's transfer where the men were told
by Harris in meetings that if the Union came in transfers
would be curtailed and were also told by Norris that union
activity was the reason for Griffith's failure to get his
transfer.
Each of the foregoing, considered individually or in total,
constitutes the classic form of questioning of employees or
the threat of loss of benefit upon the advent of the Union or
upon continued advocacy of it that has uniformally been
found by the Board and courts to interfere with, coerce, and
restrain employees in the exercise of their right to self
organization guaranteed by statute. Citation of authority is
unnecessary to conclude and find as I do that such conduct
violates Section 8(a)(1) of the Act.
In the atmosphere of antipathy towards the Union
illustrated by the conduct summarized above, disclosing as
it does the Respondent's predisposition to thwart the
advent of the Union, I find further basis for the conclusions
I have reached with respect to Respondent's refusal to
transfer Byron Griffith. Upon the evidence relied upon, the
inferences I have drawn, and in the context of the
independent violations of the Act which I have found
above I therefore conclude and find that Griffith's transfer
was refused because of the union activity then in progress.
Such a refusal, based as it was upon union considerations,
could not possibly fail to discourage union membership and
further union activity. I therefore conclude and find that it
discriminates against Griffith in violation of Section 8(a)(3)
of the Act, and interferes with, restrains, and coerces him
and his fellow employees in violation of Section 8(a)(1).
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with its business operations
described in section I above, have a close, intimate, and
substantial relation 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.
VI. THE REMEDY
It has been found that Respondent has violated the Act in
several respects. I will accordingly recommend that an
order issue requiring it to cease and desist therefrom.
Affirmatively I shall recommend that Respondent process
Byron Griffith's transfer to the position at Carthage, Texas,
for which he requested a transfer on September 23, 1970,
displacing, if necessary, any employee assigned to or
employed in that position since that date.15 I shall also
recommend the posting of an appropriate notice of
compliance with such order as the Board issues.
Upon the foregoing findings of fact, conclusions of law,
and the entire record herein, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, I hereby
recommend that there be issued the following: 16
ORDER
United Gas Pipe Line Company and Pennzoil Pipeline
Company, their officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees concerning their
union preferences and sentiments.
(b) Threatening its employees by suggesting that benefits
and privileges presently enjoyed, including transfers, will be
lost if they select a union to represent them.
15 Stafford Operating Co, 96 NLRB 1217, 1222. Section 102 48 of the Rules and Regulations be adopted by the Board and
16 In the event no exceptions are filed as provided by Section 102.46 of become its findings, conclusions , and Order and all objections thereto shall
the Rules and Regulations of the National Labor Relations Board, the be deemed waived for all purposes.
findings , conclusions , and recommended Order herein shall, as provided in
11
UNITED GAS PIPE LINE CO. 773
(c) Discouraging membership in Oil, Chemical and
Atomic Workers International Union, AFL-CIO, or any
other labor organization by withholding the transfer of
employees for the stated reason that there are union
activities in Respondent's organization.
(d) In any like or related manner interfering with,
restraining, or coercing employees or unlawfully discrimi-
nating against them in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which it is
deemed will effectuate the policies of the Act:
(a) Offer to Byron Griffith immediate transfer to the
position in Carthage, Texas, to which he requested transfer
on September 23, 1970, displacing if necessary any
employee assigned to or working in that position since that
date.
(b) Post in all of its compressor plants in its Shreveport
division and in its Edna, Carthage, and Goodrich, Texas,
plants, the notice attached hereto as "Appendix." 17 Copies
of said notice, on forms provided by the Regional Director
for Region 23, shall, after being duly signed by the
Respondent, be posted immediately upon receipt thereof in
conspicuous places and be, maintained for a period of 60
consecutive days. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by any
other material.
(c) Notify said Regional Director in writing, within 20
days from the receipt of this Trial Examiner's Decision,
what steps it has taken to comply herewith.18
17 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 "
18 In the event that this recommended Order is approved by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 23 in writing within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."
WE WILL NOT threaten you with the withholding of
job transfers and leave benefits if you select a union to
represent you.
WE WILL NOT discourage your membership in Oil,
Chemical and Atomic Workers International Union,
AFL-CIO, or any other labor organization by with-
holding job transfers.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of your rights
guaranteed by the National Labor Relations Act.
WE WILL offer Byron Griffith immediate transfer to
the position to which he requested transfer in Carthage,
Texas, displacing if necessary any employee assigned to
or working in that position since that date.
All of you, our employees, are free to remain or
become, to withdraw or to refrain from becoming,
members of Oil, Chemical and Atomic Workers
International Union, AFL-CIO, or any other labor
organization.
Dated
Dated
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully question you concerning
your union preferences and sentiments.
By
By
UNITED GAS PIPE LINE
COMPANY
(Employer)
(Representative) (Title)
PENNZOIL PIPELINE
COMPANY
(Employer)
(Representative) (Title)
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,
Dallas-Brazos Building, 1125 Brazos Street, Houston,
Texas 77002, Telephone 713-226-4296.