Big Three Industrial Gas & Equipment Co.

National Labor Relations Board - Board Decisions

Apr 14, 1970

181 N.L.R.B. 1125 (N.L.R.B. 1970)

BIG THREE INDUSTRIAL GAS & EQUIPMENT CO. 1125
Big Three Industrial Gas & Equipment Co. and
International Union of District 50 , Allied and
Technical Workers of the United States and
Canada . Cases 23-CA-3408 and 23-RC-3301
April 14, 1970
DECISION, ORDER , AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, BROWN, AND JENKINS
On January 27, 1970, Trial Examiner John F.
Funke issued his Decision in the above -entitled
proceeding , finding that the 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. The
Trial Examiner further found that the 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 and the Respondent
filed exceptions and supporting briefs.'
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 and finds that no prejudicial error was
committed . The rulings are hereby affirmed. The
Board has considered the Trial Examiner ' s Decision,
the exceptions and briefs , and the entire record in
this case , and hereby adopts the findings,
conclusions , and recommendations of the Trial
Examiner insofar as they are consistent with this
Decision and Order.
We agree with the Trial Examiner that the
Respondent ' s posting on its plant bulletin board a
letter from H. K. Smith, chairman of the Board for
Respondent , to Vernon Ford, director of the
Union ' s District 48, from around June 12, 1969,
until after the Board conducted representation
election held on August 12, 1969, announcing that
because of the election petition wages were frozen
for an indefinite time, had a coercive impact upon
its employees , and was violative of Section 8(a)(1) of
the Act. We also agree with the Trial Examiner that
the posting of the letter interfered with the free
choice of the employees in the election held in Case
23-RC-3301, and is a basis for setting the election
aside and that a second election should be held.'
However , we do not agree , for the reasons discussed
below , with the Trial Examiner's findings and
conclusion that the Respondent's refusal to permit
'Respondent 's request for oral argument is hereby denied as the record,
the exceptions and briefs adequately present the issues and positions of the
parties
the Union's election observers to work on the day of
the election and its refusal to pay them for the time
lost did not violate Section 8(a)(1) and (3) of the
Act.
The record shows that John Searles and Eugene
Beck were designated by the Union to act as its
election observers for the election scheduled at 2
p.m. on August 12, 1968. The preelection conference
was scheduled for 1 p.m. On the afternoon of
August 11, after the Respondent had been informed
of the names of the Union's two observers, plant
superintendent Paul DeLisi engaged in conversations
with both and told them since he understood that
they were going to be union observers there would
be no need for them to come to work the next day
and that the Union would probably pay them for
the time lost. Upon the advice of the Union's
representative, however, both employees reported to
work as usual the next morning at 6 a.m.
When superintendent DeLisi arrived at work
around 8 a.m., he called Searles away from his job
and asked him what he was doing at work. When
Searles told him that the Union had advised him to
report, DeLisi retorted, "Listen, Mister, the Union
is not running this company yet." He told Searles
that he was going to have to work until 2:30 p.m.,
which would have interfered with his responsibilities
as an election observer. Searles told DeLisi that if
he had to work until 2:30, he did not see why the
Company observers should not have to work until
2:30 also. DeLisi told Searles that he would do as he
wished with the company, and around 8:30 a.m. told
Searles to stop working. Searles punched out and
left. Similarly, when DeLisi saw Beck at work, he
asked why he had come to work. When told that the
Union had also advised Beck to come in, DeLisi
said, "Well, the Union is not running this place now
or never will be", and told him to punch out.
The Company's observers worked on the day of
the election, and were also paid for their attendance
at the preelection conference and the time during
which the election was being conducted. The
preelection conference was held at the plant around
1 p.m., and both Searles and Beck could have
worked 3 or 4 hours before attending it.
The Trial Examiner while finding that the
disparate treatment between the company and the
union observers was inherently discriminatory within
the meaning of the Act, did not find that the
conduct involved therein constituted an independent
violation of Section 8(a)(1) or that the "loss of 3 or
4 hours pay warrants the issuance of a Board
order." We do not agree. We find that Respondent's
'We find without merit the Respondent's exception that since the letter
in question was not specifically raised as an objection, but was uncovered
during the course of the Regional Director's investigation , it may not be
used as a basis for setting aside the election. We have long held that the
jurisdiction of the Regional Director in making his post -election
investigation is not limited to issues raised by the parties, particularly
where , as here, the Respondent has had adequate opportunity to present
argument that the information relied upon could not have adversely
affected the election See Thomas Products Co, 169 NLRB No 55
181 NLRB No. 180
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct, described above, was admittedly not based
upon necessary business considerations, but was
designed to penalize Searles and Beck for engaging
in concerted activity and was intended to discourage
such activity. We note that Searles and Beck were
both ordered to punch out after the start of a
workshift, at a time when other employees were
working, and observed the incident.
On the basis of the foregoing, we find that
Respondent has interfered with, restrained, and
coerced employees in the exercise of rights
guaranteed in Section 7 in violation of Section
8(a)(1) of the Act. We further find that the
Respondent's refusal to permit Searles and Beck to
work on the day of the election because they were
union observers, while permitting the company
observers to work, discriminated against them in
regard to the hire and tenure of employment to
discourage membership in a labor organization, and
thereby was violative of Section 8(a)(3) and (1) of
the Act. Accordingly, we shall order the Respondent
to cease and desist from such conduct, and to make
Searles and Beck whole for any loss of pay they
may have suffered '
THE REMEDY
and Section 8(a)(3) of the Act.
The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, Big Three Industrial Gas & Equipment
Co., Houston, Texas, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as so
modified:
1. Add the following as paragraph 2 of the Trial
Examiner's Recommended Order and renumber
present paragraph 2 as paragraph 3:
2. Cease and desist from unlawfully refusing to
permit union observers to work on the day of a
Board conducted election.
Having found that the Respondent engaged in
certain unfair labor practices in violation of Section
8(a)(1) of the Act in addition to those found by the
Trial Examiner, we shall order that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. We
shall order the Respondent to make Searles and
Beck whole for any loss of pay they may have
sustained by its discriminatory refusal to permit
them to work on the day of the election on August
12, 1969, by payment to them of a sum of money
equal to that which they would have earned absent
the discrimination against them, less their net
earnings during such period. Interest on said
backpay shall be computed at the rate of 6 percent
per annum as provided in Isis Plumbing & Heating
Co., 138 NLRB 716.
ADDITIONAL CONCLUSIONS OF LAW
By refusing to permit union observers to work on
the day of the election, August 12, 1969, and by
ordering such employees to leave when they reported
to work, the Respondent violated Section 8(a)(1)
'We find the unfair labor practices in question additional bases for
setting aside the election of August 12, 1969. See Dal-Tex Optical Co
Inc, 137 NLRB 1782, 1786.87
2. Add the following as paragraphs 3(b) and 3(c)
and reletter the present paragraphs accordingly.
(b) Make John Searles and Eugene Beck whole
for any loss of earnings sustained by them as a
result of Respondent's discrimination against
them, in the manner set forth in the section
entitled "The Remedy."
(c) Preserve until compliance with any orde- for
backpay made by the Board, and, upon request,
make available to the Board or its agents, all
payroll records, social security payment records,
timecards, personnel records and reports, and all
other records required to analyze and determine
the amount of backpay due.
3. Add the following paragraphs to the "Notice to
Employees" in the Appendix attached to the Trial
Examiner's Decision:
WE WILL NOT unlawfully refuse to permit union
observers to work on the day of a Board
conducted election.
WE WILL make John Searles and Eugene Beck
whole for any loss of pay they may have suffered
by reason of the discrimination against them.
All of our employees are free to become, remain,
or refrain from becoming or remaining , members of
the above-named labor organization or any other
labor organizations.
IT IS HEREBY ORDERED that the election conducted
in Case 23-RC-3301 on August 12, 1969, be, and it
hereby is, set aside, and said case is hereby
remanded to the Regional Director for Region 23
BIG THREE INDUSTRIAL GAS & EQUIPMENT CO 1127
for the conduct of a new election
[Direction of Second Election' omitted from
publication.]
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company,
394 U S 759 Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
Ned by the Employer with the Regional Director for Region 23 within 7
days after the date of issuance of the Notice of Second Election by the
Regional Director . The Regional Director shall make the list available to
all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are Ned
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: Upon a charge filed
August 12, 1969, in Case 23-CA-3408, by International
Union, District 50, UMWA, herein the Union, against
Big Three Industrial Gas & Equipment Co., herein the
Respondent, the General Counsel issued complaint
alleging Respondent violated Section 8(a)(1) and (3) of the
Act.
By order dated November 3, 1969, the Regional
Director for Region 23 issued an order consolidating the
above case with matters contained in the Regional
Director's supplemental decision an order in Case
23-RC-3301.'
The answer of the Respondent in Case 23-CA-3408
denied the commission of any unfair labor practices
The Respondent filed exceptions to the Regional
Director's supplemental decision and order (G. C Exh. B
1(g)) which have been duly considered herein
This consolidated proceeding was heard before me at
Houston, Texas, on December 8 and 9, 1969.
At the conclusion of the hearing the parties were given
leave to file briefs and a brief was received from the
General Counsel.
Upon the entire record in this case and from my
observation of the witnesses while testifying, I make the
following:
1. THE BUSINESS OF RESPONDENT
Respondent is a Texas corporation having its principal
place of business at Houston, Texas, where it is engaged
in the manufacture of oxygen, actyline, nitrogen, and
areau. In a representative 12-month period Respondent
sells and ships products valued in excess of $50,000
directly to states other than the State of Texas.
Respondent is engaged in commerce within the meaning
of the Act.
II. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES, CASE 23-cA-3408
Eugene Beck and John Searles were designated by the
Union to act as its observers in the election to be held
(Case 23-RC-3301) on August 12, 1969 2 The election was
scheduled for 2 p.m., the preelection conference which the
observers were to attend was scheduled for I p in. Both
Beck and Searles testified that on the day before the
election they were told by Plant Superintendent DeLisi
that their services would not be required the next day but
that the Union would probably pay them. Both reported
for work at 6 a.m. on August 12 and were working when
DeLisi reported for work at 8 a.m. Beck testified that
when DeLisi saw him he told him he had been told not to
work and to check out. Beck testified that when DeLisi
sent him home other employees could have observed the
scene and could have overheard the conversation. Searles
testified that at 8 a.m when DeLisi saw him he called him
to the timeclock and asked what he was doing Searles
told him he had seen the company observers working so
he went to work. DeLisi told him he would have to work
until 2:30 p in. and to notify the Union ' At 8:30 DeLisi
came back and told him he might as well stop working
because he would not be paid. Searles checked out and
was paid for 2 1/2 hours' work. He too testified that
other employees could see and hear the conversation
which took place at 8:30.
Respondent asserted it did not want the men to work
since they could not perform a full day's work There is
nothing to indicate that the Union's observers could not
have worked until l p.m as did the company observers,
who were paid for the full day No contention is made by
the General Counsel that the men should have been paid
for the full day but that they should have been paid for
time worked until I p.m. I agree and find that this
disparate treatment between the company and union
observers was inherently discriminatory within the
meaning of the Act. I do not find, however, that a loss of
3 or 4 hours' pay warrants the issuance of a Board order.
I do not find that this refusal constituted an
independent violation of Section 8(a)(1) There is no direct
evidence that any other employees overheard the
conversations between DeLisi and the two observers nor
would I hold, if there were such evidence, that the refusal
to permit the observers to work on August 12 restrained
or coerced other employees.
The parties stipulated that General Counsel's Exhibit 2,
a letter from H. K Smith, chairman of the Board for
Respondent, to Vernon Ford, director of the Union's
District 48, refusing recognition of the Union, was posted
on Respondent's bulletin board at the Houston plant from
some time in June until after the election.
This letter reads
This will acknowledge receipt of your letter of June
10, 1969, again requesting recognition of the union for
limited purposes.
As your letter indicates, it is true that the election
petition of the union has frozen the wages and all other
terms and conditions of employment at The Big Three
West 11th Street plant for an indefinite time. If this
freeze carries through all of the statutory procedures to
resolution by the Courts, the freeze may last as long as
two to three years Although we regret that the Union's
action has imposed this freeze on our employees, under
'The Regional Director's order was by direction of the Board (G C
Exh B 1(j))
'Unless otherwise noted all dates refer to 1969
'Both employees regularly worked from 6 a in to 2 30 p in Lunch was
taken from 11 30 to 12
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the current decision of the National Labor Relations
Board, we have no other alternative.
Please also be advised that your demand for
recognition is ambiguous and specifies an inappropriate
unit.
Big Three has a long established policy of not
granting retroactive wage increases and has no intention
of changing this policy.
I find that this letter and its posting for the period
stipulated did violate Section 8(a)(l) of the Act. The
statement that the election petition filed by the Union had
frozen wages in the plant for an indefinite period of time,
a time which might last 2 or 3 years, is not only an
incorrect statement of the law' but also notice to
employees that rejection of the Union at the election
would quickly thaw the freeze Directly implied is the
threat that Respondent could and probably would prolong
the freeze by resort to statutory procedures and appeals to
the courts The coercive impact of the letter is heightened
by the nature of the country's economy during this period
Confronted by a spiraling inflation and increasing prices
any employee would necessarily reconsider his union
support if it meant that no changes in working conditions
would be granted for a substantial period. During this
period wage increases and improved benefits may
reasonably be expected to be gained through collective
bargaining as a response to increased living costs.
In N L R.B v. Gissell Packing Co, 1969, 395 U.S
575, the Supreme Court expressed itself on the very issue
of predictions of the consequences of union organization
by an employer. The Court stated, page 618•
The employer may make a prediction as to the precise
effects he believes unionization will have on his
company. In such a case, however, the prediction must
be carefully phrased on the basis of objective fact to
convey an employer's belief as to demonstrably
probable consequences beyond his control or to convey
a management decision already arrived at to close a
plant in case of unionization . . . . If there is any
implication that an employer may or may not take
action solely on his own initiative for reasons unrelated
to economic necessity and known only to him, the
statement is no longer a reasonable prediction based on
available facts but a threat of retaliation based on
misrepresentation and coercion, and as such without the
protection of the First Amendment
In N L R.B. v J C Pearson Co., 420 F.2d 695
(C A 1), the Court, construing Gissell , stated
We read the opinion in N.L R.B . v. Gissell Packing
Co., ... as indicating two ways in which an employer's
predictions as to the possible unhappy consequences of
unionization might transgress The prediction might
indicate that unnecessary consequences would be
deliberately inflicted by the employer, in other words, a
threat of retaliation. Alternatively, the consequences
might be described as probable or likely, when in fact
there is no objective evidence of such likelihood. This
would not be a retaliatory threat but it would be an
improper threat nevertheless.
I can only conclude that Respondent deliberately conveyed
to its employees the suggestion that selection of the Union
would freeze all working conditions for a period of 2 to 3
years while rejection of the Union at the election would
leave Respondent free to confer wage increases and other
'See McCormick Longmeadow Stone, Inc. 158 NLRB 1237, 1242
benefits. Accordingly, I find Respondent violated Section
8(a)(1) of the Act
IV. THE CHALLENGED BALLOTS, CASE 23-RC-3301
At the conclusion of the election held August 12 the
parties were served with a tally of ballots showing that of
approximately 246 eligible voters 239 cast ballots, of
which 57 were for the Petitioner, 87 against the Petitioner
and 95 ballots were challenged. (One ballot was void.) The
challenged ballots were accordingly determinative. In his
supplemental decision the Regional Director directed that
the hearing to be conducted before a Trial Examiner
examine the eligibility status of all those who voted a
challenged ballot S
At the hearing the parties agreed that 65 of the
challenges should be sustained, leaving the total count 57,
for the Petitioner, 87 against the Petitioner and 30
challenged ballots. The challenged ballots are, therefore,
no longer determinative of the results of the election and
the proceeding is remanded to the Regional Director for
the purpose of issuing a revised tally of ballots
accordingly.
V. OBJECTIONS TO THE ELECTION, CASE 23-RC-3301
The Examiner has already ruled, supra, that the refusal
of Respondent to permit Beck and Searles to work on
election day and the action of DeLisi in sending them
home at 8 and 8:30 a.m. respectively did not violate
Section 8(a)(1) of the Act. For the same reasons I find
that this action does not warrant the setting aside the
election. It cannot be determined, apart from speculative
testimony by Beck and Searles, that any employees
overheard their conversations with DeLisi or knew the
reason for their departure. Both did act as observers at
the election and participated in the preelection conference.
In any event I do not believe that this act whether heard
and understood by a small group of other employees or
not could have had sufficient impact to warrant setting
aside an electioh in which over 200 employees
participated.
As to the second ground, the letter of H. K Smith,
supra, I reach a different conclusion. For the reasons set
forth in paragraph "III," supra, I find that the restraining
and coercive effect of the posting of the letter during the
preelection period precluded a free choice on the part of
the employees. I shall therefore recommend that the
election be set aside.
VI THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices in violation of Section 8(a)(1) of the
Act it shall be recommended that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It shall also be recommended that in Case 23-RC-3301
the Regional Director issue and serve a revised tally of
ballots and that the election held in such case be set aside.
It is further recommended that said case be severed and
remanded to the Regional Director for the holding of a
new election at such times as he deems the circumstances
will permit a free choice of a bargaining representative
'In his decision and direction of election the Regional Director ordered
that engineers , salesmen and certain employees whose supervisory status
was in doubt be permitted to vote subject to challenge
BIG THREE INDUSTRIAL GAS Sc EQUIPMENT CO. 1129
CONCLUSIONS OF LAW
1. By posting the letter above set forth and maintaining
it on its bulletin boards for a period of some months prior
to the election herein the Respondent violated Section
8(a)(1) of the Act and unlawfully and substantially
affected the results of the election conducted on August
12, 1969.
2. The aforesaid unfair labor practice is an unfair labor
practice within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and
conclusions and upon the entire record in this case, it is
recommended that Respondent, its officers, agents,
successors and assigns shall:
1. Cease and desist from telling its employees that the
Union's petition for an election has frozen the wages and
all other terms and conditions of employment for an
indefinite time that might last as long as 2 to 3 years.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its places of business at 3602 West I1th
Street, Hempstead Road and 5909 Clinton Drive,
Houston, Texas, copies of the attached notice marked
"Appendix. Copies of said notice on forms to be
furnished by the Regional Director for Region 23, shall,
after being duly signed by the Company's authorized
representative, be posted by the Company immediately
upon receipt thereof and maintained thereafter for a
period of 60 consecutive days in conspicuous places,
including all places where notices to employees are
'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 tie 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. 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 "
customarily posted. Reasonable steps shall be taken by the
Company to Insure that said notices are not altered,
defaced, or covered by other material.
(b) Notify the Regional Director for Region 23, in
writing, within 20 days from receipt of this Decision what
steps have been taken to comply with the terms hereof.'
It is further recommended that the complaint in Case
23-CA-3408 as to all matters not specifically found to be
in violation of the Act be dismissed.
It is further recommended that the results of the
election in Case 23-RC-3301 be set aside, that said case be
severed and remanded to the Regional Director for
Region 23 for the holding of a new election at such time
as he deems appropriate.
J 'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read - "Notify said Regional Director, in
writing, 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 tell our employees that the Union's
petition for an election has frozen wages and all other
terms and conditions of employment for an indefinite
period of time that might last as long as two to three
years.
BIG THREE INDUSTRIAL
GAS EQUIPMENT CO.
(Employer)
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,
6617 Federal Office Building , 515 Rusk Avenue, Houston,,
Texas 77002, Telephone 713-226-4296