City Gas Co. of Phillipsburg, N.J.

National Labor Relations Board - Board DecisionsMar 24, 1965

151 N.L.R.B. 1064 (N.L.R.B. 1965)

1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B ARTICLE I SECTION 3. Jurisdiction of the Union and the appropriate unit for collective bar- gaining is defined as including all composing room work and includes classifications such as: Markup men, copy cutters, hand compositors, typesetting machine operators, makeup men, bank men, proofpress operators, pioofreaders, machinists for type- setting machines, operators and machinists on all mechanical devices which cast or compose type or slugs, or film, operators and machinists for tape perforating machines and recutter units for use in composing or producing type, operators and machinists on all devices in a computer operation which are producing material for composing room work, beginning with the preparation of material used by the input devices and continuing until the completed product of the output devices is ready for further processing under the terms of this agreement, operators of all photo- typesetting machines (such as Fotosetter, Photon, Linofilm, Monophoto, Coxhead Liner, Filmotype, Typro and Hadego) and employees engaged in proofing, waxing and paste-makeup with reproduction proofs, processing and product of photo- typesetting machines, including development and waxing; paste-makeup of all type, handlettered, illustrative, border and decorative material constituting a part of the copy; ruling, photo-proofing, correction, alteration and imposition of the paste- makeup serving as the completed copy for the camera used in the platemaking process. Paste-makeup for the camera as used in this paragraph includes all photo- stats and prints used in offset or letterpress work and includes all photostats and positive proofs of illustrations (such as Velox) where positive proofs can be supplied without sacrifice or quality or duplication of efforts. The jurisdiction of the Union includes the conversion of the computer program into the processing media, except when such program media is provided by the manufacturer or lessor under prior agreement, but does not include the design and development of the computer pro- gram. Maintenance on computer equipment (except such computer maintenance which because of its nature is performed by the manufacturer or lessor by prior agreement) shall be done by employees covered by this agreement. The employer shall make no other contract covering work as described above, especially no con- tract using the word "stripping" to cover any of the work above-mentioned. City Gas Company of Phillipsburg , N.J. and United Steelworkers of America , AFL-CIO and Ernest E. Snover. Cases Nos. 22- RC-2201 and 22-CA-1773. March 241, 1965 DECISION AND ORDER On April 30, 1964, Trial Examiner Lee J. Best issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged 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. Thereafter, the Respondent filed exceptions and a supporting brief. It alleged, inter alia, that the Trial Examiner had committed prejudicial error in denying Respondent's demand that the General Counsel submit for inspection by Respondent the prehearing statement of General Counsel's witness, Burgstresser. Finding merit in the Respondent's exception, the National Labor Relations Board, on October 8, 1964, directed the General Counsel to make Burgstresser's prehearing statement available to Respondent, with leave for Respondent to 151 NLRB No. 115. CITY GAS COMPANY OF PHILLIPSBURG, N.J. 1065 move to reopen the record for the limited purpose of permitting further cross-examination of the witness Burgstresser and other witnesses whose testimony might become relevant to evidence adduced in the further examination of Burgstresser. On November 12, 1964, the Respondent having timely moved to reopen the record, a further hearing was held before Trial Examiner Best. On February 4, 1965, the Trial Examiner issued his Supple- mental Decision reaffirming, on the record as a whole, the Con- clusions of Law and Recommended Order of his Decision of April 30, 1964, as set forth in the attached Supplemental Decision. There- after, Respondent filed exceptions to the Supplemental Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with these cases to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and Supplemental Decision, the excep- tions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Ex- aminer, with the following modifications : 1. Add the following as paragraph 2(b) to the Trial Examiner's Recommended Order, the present paragraph 2(b) and those sub- sequent thereto being consecutively relettered : "(b) Notify Ernest E. Snover if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." 2. Add the following immediately above the signature at the bottom of the Appendix attached to the Trial Examiner's Decision : NoTE.-We will notify Ernest E. Snover if presently serving in the Armed Forces of the United States of his right to full re- instatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 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 Order recommended by the Trial Examiner and orders 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Respondent, City Gas Company of Phillipsburg, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that the challenge to the ballot of Ernest E. Snover, in Case No. 22-RC-2201, which was cast in the election held on November 14, 1963, be, and it hereby is, overruled; and that the Regional Director for Region 22 open and count such ballot and cause to be served upon the parties a revised tally of ballots and an appropriate certification. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE These consolidated cases brought under Section 9(c) and Section 10(b), respec- tively, of the National Labor Relations Act, as amended, 29 U.S C. 151, et seq., herein called the Act, were heard pursuant to notice before Trial Examiner Lee J. Best at Phillipsburg, New Jersey, on February 17 and 18, 1964, with all parties pres- ent. In Case No. 22-RC-2201 the United Steelworkers of America, AFL-CIO, herein called the Union, filed a representation petition, whereupon an election was conducted among employees of City Gas Company of Phillipsburg, N.J., on Novem- ber 14, 1963. Therein the ballot of Ernest E. Snover (employee) was challenged by the Employer on the ground that he had previously been discharged for cause on August 29, 1963, and consequently did not appear on the eligibility list of qualified voters. The result of the balloting is solely dependent upon a determination as to whether or not the challenge should be sustained. On the next day following this election, Ernest E. Snover (as an individual) filed a charge in Case No 22-CA-1773. Based upon the charge filed on November 15, 1963, the General Counsel of the National Labor Relations Board on December 30, 1963, issued a complaint against City Gas Company of Phillipsburg, N.J., herein called the Respondent, alleging that the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act More specifically, the complaint (as amended) alleges that on various dates during the months of July, August, and November, 1963, the Respondent (1) interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and (2 ) by discrimination to discourage member- ship in a labor organization, discharged Ernest E. Snover (employee) because of his activities on behalf of the Union. The Respondent filed an answer admitting facts pertaining to commerce, but denied all allegations of unfair labor practices. All parties were afforded full opportunity to be heard, to examine and cross-exam- ine witnesses, to introduce evidence pertinent to the issues involved, to argue orally upon the record, and to file written briefs with the Trial Examiner, all of which have been given due consideration Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT EMPLOYER City Gas Company of Phillipsburg, N.J., is a corporation duly organized and exist- ing under and by virtue of the laws of the State of New Jersey with its principal office and place of business located at 364 Morris Street, Phillipsburg, New Jersey, where it is engaged in the purchase, sale, and distribution of natural gas as a public utility. In due course of business operations during the past 12 months , which is a repre- sentative period, Respondent received gross revenue in excess of $500,000; and dur- ing the same period caused to be purchased, transferred, and delivered to its Phillips- burg place of business, natural gas and other goods and materials valued in excess of $50,000 from sources of origin outside the State of New Jersey. I find, therefore, and it is admitted that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Supervisors of the Respondent include Vice President Calvin R. Carver (now president), Assistant Secretary Leland B. Petit, and Manager Robert E. Blair. CITY GAS COMPANY OF PHILLIPSBURG, N.J . 1067 II. LABOR ORGANIZATION INVOLVED United Steelworkers of America , AFL-CIO, herein called the Union , is a labor organization within the meaning of Section 2(5) of the Act, existing in whole or part for the purpose of representing employees in dealing with employers concerning grievances , labor disputes , wages, rates of pay, hours of employment , and conditions of work. III. THE UNFAIR LABOR PRACTICES A. Company policies During the period covered by the complaint herein the employees of City Gas Company of Phillipsburg , N.J., were not represented by any labor union; but annu- ally selected an employee committee to negotiate with their employer concerning wages, hours, and other terms and conditions of employment . The agreement reached in such negotiations was published and revised by the Respondent from time to time by the issuance of a pamphlet entitled "Company Policies." Ernest E. Snover and Frank Tetterman were members of this committee throughout 1963. In compliance with the State Disability Law of New Jersey, Respondent purchased insurance coverage from the Aetna Insurance Company to pay employees certain sick leave benefits resulting from bona fide illness . In addition to these ordinary sick leave benefits , the Workmen 's Compensation Law of New Jersey provides accident compensation for "on the job injuries ," as distinguished from ordinary sick leave benefits. With respect to such injuries "Company Policies" provided , as follows: C. ON THE JOB INJURY 1. If an employee is injured in line of duty and is temporarily incapacitated as a result thereof, the Company will pay to him for no longer than 10 weeks, the difference between his accident compensation and his normal weekly wages, provided that his injury was not the result of violation of rules, or fault , failure, or misconduct on his part , and provided further that a competent physician selected by the Company , if it desires , finds that the employee concerned is unable to work because of such injury. To eliminate possible employee hardships , the Company will not deduct from its payments to the employee the benefits receivable by the employee under the Workmen 's Compensation Law until such time as these benefits are being regu- larly received by the employee . In consideration of this, the employee shall pay to the Company immediately upon receipt from the State or Insurance Com- pany, all amounts temporarily advanced to the employee by the Company in excess of the amount specified in this plan. By reason of an injury and operation for hernia , Ernest E. Snover was disabled and absent from work from January 11 to April 8, 1963. Under the foregoing policy provision for on the job injuries , the Respondent continued to pay him full wages at the rate of $80 per week for a period of 10 weeks for a total of $800. Thereafter , an informal application for compensation to the Workmen 's Compensa- tion Board was denied by an examiner , and in lieu thereof the Respondent filed claim for sick leave benefits under its policy with the Aetna Insurance Company, and recov- ered the sum of $430 on or about June 13, 1963. Thereafter , Respondent made demands upon Snover for repayment to the Company of any additional amount paid out to him as wages during the period of his disability . Snover agreed to take the matter under consideration with his wife , and then consulted a lawyer (Joseph B. DeMasi ) with respect to his legal liability for such payments . This lawyer advised Snover that there was considerable doubt as to his liability and that he should not make payment until after a formal claim could be processed and determined before the Workmen 's Compensation Board, because the previous informal denial of the claim did not constitute an adjudication of his rights under the statute. Thereupon, Snover notified his supervisor ( Manager Robert E. Blair ) accordingly , and author- ized the Respondent to take the matter up with Attorney DeMasi. Thereafter, on September 19, 1963, Attorney Joseph B . DeMasi filed a formal claim or petition on behalf of Ernest E. Snover before the Workmen 's Compensation Board of New Jersey, where the matter was still pending at the time of hearing in the instant case. B. Interference , restraint, and coercion Prior to employment by the Respondent on April 17, 1961, Ernest E. Snover had been a member of the Steelworkers Union while working at the plant of Ingersoll Rand in Phillipsburg , New Jersey , until laid off in November 1960. In May 1963 he was elected as a member of the employee committee to negotiate with Respondent 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with respect to established "Company Policies" pertaining to wages, hours, and work- ing conditions of its employees. Prior to the first meeting with management repre- sentatives on July 17, 1963, Snover visited the local union hall of United Steelworkers. of America, AFL-CIO, and discussed with union representatives (Kutsopias and Mackay) the possibilities of organizing employees of the Respondent. Thereafter, Snover quietly initiated an organizational campaign by soliciting his fellow employees to sign union authorization cards. He also arranged for meetings of these employees, in the union hall at which he occupied the speaker's table with International Repre- sentative William D. Mackay to assist in the organizational effort. Local Manager Robert E. Blair admits that he learned about the first union meet- ing in the early part of July 1963, and thereafter kept Vice President Carver informed as to what was going on; and that he suspected Ernest E. Snover, Jack Burgstresser, and Charles Volpe of being the leaders in the union campaign. From the testimony of Assistant Secretary Leland B. Petit, its appears that the Respondent became somewhat provoked with Ernest E. Snover and Frank Tetterman during its last meeting with the employee committee on August 7, 1963, when some doubts were expressed with respect to the authority of the committee, and they admitted that a considerable showing of interest in an outside union had been exhib- ited by the employees. Consequently, it was no surprise to the Respondent when a later meeting scheduled to be held on August 27, 1963, was indefinitely postponed; and was followed 2 days later by a demand for recognition by the United Steel- workers of America, AFL-CIO, on August 29, 1963. Vice President Calvin R. Carver testified that he had been hearing rumors about such union activities since late June or early July, and that he told the employee com- mittee at the first meeting on July 17, 1963, that they would have to go back to the employees and determine whether they desired representation by the employee com- mittee or l?y some other organization. At the next meeting on August 7, 1963, Vice President Carver called for an answer to his previous query concerning the represen- tation authority of the employee committee, and, thereupon, Ernest E. Snover assured the Respondent that the employees would give full support to this committee. At the conclusion of this meeting Vice President Carver privately informed Ernest E. Snover that he was very much disturbed because no arrangements had been made to reimburse the Company for wages advanced to him during his absence from work prior to April 8, 1963. Snover agreed to discuss the matter with his attorney and thereafter advise Manager Blair what he proposed to do about it, but also told Vice President Carver that Attorney DeMasi had advised him not to pay it. Jack Burgstresser (employee) credibly testified that: In the early part of July 1963 he signed a union card at the solicitation of Ernest E. Snover, but never became a member of the Steelworkers Union, shortly thereafter he had a conversation about the Union with Manager Blair at the Franklin House Tavern, where he frequently fraternized with employees after working hours, and Blair inquired why they needed a union and who was the ringleader in organizing. Burgstresser told Blair that it was Ernest E. Snover who passed out the cards. At a later date on Friday before the election in November 1963, Manager Blair informed both Jack Burgstresser and Frank Tetterman that they would become permanent foremen beginning on the fol- lowing Monday. Blair told Burgstresser that he had been square about the foreman's job and expected him to vote right. He inquired as to how he would know how Burgstresser voted, and Burgstresser agreed to mark his ballot with a crooked "X" so that the Company observer would recognize it in counting the ballots. Blair fur- ther stated that Burgstresser should "wise up" because he had a house to pay for and a family to look out for. Two other employees (Charles Albert Vine and Joseph Leonard Alickman) credi- bly testified that they signed union cards at the solicitation of Ernest E. Snover, and also attended two or more union meetings during July and August 1963-that on the next morning after one such meeting Manager Blair inquired whether they had attended and as to what happened there. These inquiries and conversations with Vine and Alickman were admitted by Manager Robert E. Blair. It was also admitted by Manager Robert E Blair that he engaged in four separate conversations with Jack Burgstresser, but could not recall whether Burgstresser told him that Snover was the ringleader who had passed out union cards to the employees. Blair further admits, however, that through "the grapevine" he heard that Burgstresser, Snover, and Volpe were handling the cards, and that he reported these names to Vice President Carver- that on a later occasion Burgstresser tried to impress upon him that he had taken no part in the union activities, and proposed to mark his ballot in such a manner that the Company observer at the election could ascertain that he was voting against the Union. CITY GAS COMPANY OF PHILLIPSBURG, N.J. 1069 C. Discharge of Ernest E. Snover International Representative William D. Mackay notified the Respondent by tele- phone call to Leland B. Petit (assistant secretary of the Corporation) in Flemington, New Jersey, at approximately 9:30 a.m. on Thursday, August 29, 1963, to the effect that the Union had received signed authorization cards from a majority of its employ- ees; and requested that the United Steelworkers of America, AFL-CIO, be recog- nized as their representative for the purpose of collective bargaining. Mr. Petit agreed to consult his superiors in the Company and give Mackay an answer by tele- phone on the next day.' Mr. Petit immediately reached Vice President Carver by telephone at his office in Maplewood, New Jersey, just prior to his departure for Newark, New Jersey, to meet an appointment with the Board of Public Utility Com- missioners . Consequently, Carver told Petit that he did not have time to discuss the matter, but would call him back later during that day. President Carver returned to his office about 1 p.m., immediately called Manager Blair at Phillipsburg, New Jersey, and instructed him to go out into the field, find Ernest E. Snover, and dis- charge him on the spot for failure to pay his debt to the Company; and that confirma- tion of the discharge would be mailed later from the Maplewood, New Jersey, office. Letter sent by registered mail to Ernest Snover on August 29, 1963, reads as follows: Dear Mr. Snover: I wish to confirm to you the advice which you received from Mr. Blair this afternoon to the effect that we are discontinuing your employment with City Gas Company of Phillipsburg, N.J. as of this date. On at least two prior occasions, Mr. Blair has requested some indication from you as to what proposal you might wish to make to the company concerning the amount in which you are indebted to us, approximately $311.00. He has received no response from you in any way indicating an intention on your part to repay this debt. In addition, at the time of the last meeting of the Employees held at New Village in early August, I discussed this matter with you in some detail and you advised me that you would have your attorney contact Mr. Blair the following day. Mr. Blair has not received a call or any information from your attorney, nor has he had any other comment from you concerning this matter. Accord- ingly, we can only assume that it is your intention not to repay this amount which is owed to us. You are aware that this debt resulted from an adverse decision rendered at an informal hearing by an examiner in connection with a claim for Workmen's Compensation. This claim was disallowed and, hence, the payments which we had made to you in accordance with our Company Policies concerning absence from work due to work connected injuries were incorrect. Application of the Company Policies concerning compensation resulting from non-working dis- ability required payments to you of a substantial lesser amount, resulting in approximately $311.00 excess payment to you. In accordance with our Company Policies, we are giving you two weeks' sev- erance compensation which is being applied to the reduction of the debt which you owe to us. A check for the time actually worked, through normal quitting time on this date, will be forwarded to you from our accounting department as soon as possible. Very truly yours, CITY GAS COMPANY OF PHILLIPSBURG, N.J., C. R. CARVER, Vice President. Immediately following his instructions to Manager Blair, Vice President Carver called Assistant Secretary Leland B. Petit in Flemington, New Jersey, and discussed the union demand for recognition. Thereafter, he conferred with counsel, and by a second telephone call that same afternoon instructed Petit to notify Mackay that the matter had been referred to attorneys, who would get in contact with him after the Labor Day holiday. In the meantime Manager Blair drove his automobile to the place at which Snover was at work, called him aside from the working crew, and notified him that he was being forthwith discharged by instructions from Vice Presi- dent Carver. Immediately following his discharge, Snover again consulted his attor- ney, Joseph B. DeMasi. Mr. DeMasi then offered to reimburse the Respondent for all wages advanced to Ernest E. Snover pending the determination of his formal claim i The ultimate reply of Petit was that no union was needed and that Mackay should go to the National Labor Relations Board 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against the Workmen's Compensation Board, and proposed that Respondent reinstate Snover in his employment with the Company . After taking this proposal under con- sideration , Vice President Carver refused to reinstate this employee allegedly by rea- son of his attitude in ignoring Respondent 's request for reimbursement of advanced wages and at the same time making a payroll deduction of $5 per week from his current wages to purchase preferred stock in the Respondent Company, which indi- cated poor judgment and an undesirable type of employee . After deduction of severance pay it appears that Respondent 's claim against Ernest E. Snover amounts to only $126.18. Concluding Findings It is not denied that Manager Blair interrogated employees ( Charles Albert Vine and Joseph L. Alickman ) concerning attendance at union meetings in July 1963; and under the circumstances of this case I find such interrogation constituted interfer- ence, restraint , and coercion within the meaning of Section 8 ( a)(1) of the Act. I also find that Blair's interrogation of Jack Burgstresser (employee ) in July 1963, as to who was ringleader of the Union , and further queries, proposals , and warnings as to how he should vote in the election of November 14 , 1963, constituted a viola- tion of Section 8 (a) (1) of the Act. The abrupt manner in which Vice President Carver ordered the peremptory dis- charge of Ernest E. Snover concurrently with the request of the Union for recogni- tion raises a presumption of extraordinary significance . It was not recommended by the immediate supervisor ( Manager Blair ) and was consummated without notice to the employee involved. It is not my function to determine the liability of Ernest E. Snover for any excess wages advanced by the Company during the period of his dis- ability from injuries suffered in line of duty ; but I find no . just cause for any such peremptory conduct by the Respondent pending a final hearing and determination by the Workmen 's Compensation Board with respect to compensation to which this employee may be entitled . Refusal by the Respondent to accept payment by Snover's attorney immediately upon announcement of the discharge is convincing evidence that Respondent was not primarily concerned with the small amount of money involved, and indicates a far greater desire to get rid of the Union 's most effective supporter and leader . It is unclear whether or not Ernest E. Snover is indebted to the Respondents in any amount whatever. At least, it does not appear that this employee has violated any agreement imposed upon him by "Company Policies." From a preponderance of the evidence herein, I find the reason for discharge given by the Respondent to be a mere pretext ; and further find that by discharging Ernest E Snover ( employee ) on August 29, 1963, Respondent discriminated in regard to hire or tenure of employment to discourage membership in a labor organization. In view of the foregoing finding of discrimination against Ernest E. Snover by the Respondent , I further find that his status as an employee has not been legally affected by his dismissal on August 29, 1963, and by reason thereof he was eligible and entitled to vote in the election of November 14, 1963, in Case No. 22-RC-2201. It will, therefore , be recommended that the pending challenge to his ballot be over- ruled , and that the Board direct the Regional Director for Region 22 to count this ballot and issue a revised tally showing the result of election. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with the operations described in section I, above, have a close , intimate , and sub- stantial 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. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices affecting commeice , I shall recommend that it cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. Finding that by interrogation concerning their union activities and warnings that such activities would result in economic losses to its employees , the Respondent has interfered with, restrained , and coerced its employees in violation of Section 8(a) (1) of the Act , I shall recommend that the Respondent cease and desist therefrom. Having found that the Respondent has by discrimination in regard to hire or tenure of employment , discharged Ernest E . Snover (employee ) to discourage membership in a labor organization , in violation of Section 8(a)(1) and ( 3) of the Act , I shall recommend that Respondent offer to him immediate and full reinstatement to his CITY GAS COMPANY OF PHILLIPSBURG, N.J. 1071 former or substantially equivalent position 2 without prejudice to his seniority and other rights and privileges of employment ; and make him whole for any loss of earn- ings, pay, or emoluments suffered by reason of such discrimination by the payment to him of a sum of money equal to the amount he would normally have earned as wages from the date of his discharge on August 29, 1963, to the date on which the Respondent shall offer him proper reinstatement as herein provided , less his net earnings 3 during said period. Such backpay shall be computed on a quarterly basis in the manner prescribed by the Board in F . W. Woolworth Company, 90 NLRB 289-294, and shall include interest at 6 percent per annum as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. I shall further recommend that Respondent preserve and make available to the Board or its agents, upon request, for examination and copying , all payroll records , social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze and compute the amounts of backpay and other emoluments due and payable under the terms and conditions specified herein. In order to make effective the interdependent guarantees of Section 7 of the Act, I shall recommend that the Respondent cease and desist from infringing in any man- ner upon the rights guaranteed to employees in said section . See N.L.R.B. v. Express Publishing Company, 312 U .S. 426; N.L.R.B . v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. City Gas Company of Phillipsburg , N.J., is an employer engaged in commerce within the meaning of Section 2(6) and ( 7) of the Act. 2. United Steelworkers of America , AFL-CIO , is a labor organization within the meaning of Section 2 ( 5) of the Act. 3. By interrogating its employees concerning their organizational activities and warning them that economic losses to themselves would result therefrom and thereby interfering with , restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating in regard to the hire or tenure of employment of Ernest E. Snover (employee ) to discourage membership in the United Steelworkers of America, AFL-CIO ( a labor organization ), and thereby interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and ( 3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended , it is hereby ordered that the Respondent , City Gas Company of Phillipsburg , N.J., its agents , supervisors , successors , and assigns , shall: 1. Cease and desist from: (a) Interrogating its employees concerning their organizational activities and warning them that economic losses to themselves will result therefrom. (b) Discouraging membership in the United Steelworkers of America , AFL-CIO, or any other labor organization , by discharging its employees or otherwise discrimi- nating in regard to their hire or tenure or employment , or any term or condition of employment. (c) In any other manner interfering with , restraining, or coercing its employees, or in any manner infringing upon the right guaranteed to such employees by Sec- tion 7 of the Act, except to the extent that such right may be affected by an agree- ment authorized by Section 8(a)(3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Ernest E. Snover (employee ) immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. 3 The Chase National Bank of the Ctty of New York, San Juan , Puerto Rico , Branch, 65 NLRB 827 3 Crossett Lumber Company, 8 NLRB 440 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Make whole Ernest E. Snover (employee) for any loss of pay and other emoluments he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge on August 29, 1963, to the date on which the Respondent shall offer him proper reinstatement in the manner provided above in section V entitled "The Remedy." (c) Preserve and make available to the Board and its agents, upon request, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze, compute, and determine the amount of backpay and other emoluments due and pay- able under the terms and conditions specified in this Recommended Order. (d) Post in its office and plant at Phillipsburg and New Village, New Jersey, copies of the attached notice marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for Region 22, shall, after being signed by an authorized representative of the Respondent, be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for a period of 60 consecutive days from date of posting, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 22, Newark, New Jersey, in writing, within 20 days from date of this Recommended Order, what steps Respondent has taken to comply herewith.5 It is further recommended that the challenge to ballot of Ernest E. Snover in Case No. 22-RC-2201, which was cast in the election held on November 14, 1963, be overruled, and that such ballot now be opened, counted, and announced by the Regional Director to determine the result of said election. 4In the event this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "a Recommended Order of a Trial Ex- aminer" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 5 If this Recommended order be 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 ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT interrogate our employees concerning their organizational activi- ties, or threaten them with economic reprisals, or in any other manner infringe upon, interfere with, restrain, or coerce our employees in the exercise of their right to self-organization as guaranteed in Section 7 of the Act. WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, or any other labor organization, by discharging our employees or otherwise discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL offer to Ernest E. Snover (employee) immediate and full reinstate- ment to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges of employment; and make him whole for any loss of pay or other emoluments he may have suffered by reason of our discrimination against him. All of our employee are free to become or remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. CITY GAS COMPANY OF PHILLIPSBURG, N.J., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) CITY GAS COMPANY OF PHILLIPSBURG, N.J. 1073 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. Employees may communicate directly with the Board's Regional Office, 614 National Newark Building, 744 Broad Street , Newark , New Jersey, Telephone No. Market 4-6151 , if they have any questions concerning this notice of compliance with its provisions. TRIAL EXAMINER 'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE Pursuant to order of the National Labor Relations Board issued on October 8, 1964, the record herein was reopened , and a further hearing was held before Trial Exam- iner Lee J. Best at Newark , New Jersey , with all parties present and repiesented by counsel on November 12, 1964, for the limited purpose of permitting further cross- examination of the witness , Jack Burgstresser, and any other witnesses whose testi- mony might become relevant to evidence adduced in such further cross-examination. In compliance with the aforesaid order of the Board, the General Counsel made available and permitted Respondent to make a copy of the prehearing written state- ment of Jack Burgstresser dated December 3, 1963, which was admitted in evidence as Official Exhibit No . R-4. Thereupon , the witness , Jack Burgstresser , was recalled for further cross -examination by counsel for the Respondent . No other additional witnesses were called or requested by the Respondent . All parties were authorized to argue orally upon the record and to file additional written briefs with the Trial Examiner . Supplementary written brief filed by counsel for the Respondent has been given due consideration. From additional testimony and documentary evidence adduced, and from the entire record in the case , I make the following SUPPLEMENTAL FINDINGS AND CONCLUSIONS The prehearing statement of Jack Burgstresser ( Exhibit R-4) reads in pertinent part, as follows: I have been employed by City Gas of Phillipsburg , N.J., for three years. I voted in the NLRB election . I was acting foreman from April 1963 to the Friday before the election . As acting foreman I received $2.30 an hour. I worked with leaks. Usually one or two men helped me. I would get the ciders from the office , and they would tell me what I had to do . I worked with the men who helped me. It was my responsibility to make sure the job was done right . I did not have any authority to hire, fire or recall any employees. I worked about 8 hours a day. On the Friday before the NLRB election, Mr . Blair, the general manager, told me and Frank Te.tterman , acting foreman, that effective the following Mon- day we were permanent foremen. He said that since we were doing a good job he gave it consideration and that he was making us permanent foremen on his own. As acting foreman I received $2.30 an hour. I still get that . Being perma- nent foreman meant no raise in pay. The only difference is that when I was acting foreman I would get $2.15 an hour when I was out sick or on a holiday or vacation or when I worked with another crew . Now in those situations I get $2.30 an hour . I do not have the authority to hire, fire , transfer , suspend, lay- off, recall, promote or discipline employees . It is not part of my job to recom- mend any of those actings [sic]. Since I have been permanent foreman I still work as I did before . I do the same type work . When I am with a crew, which usually is one less experienced man than I, we both work , but I do the deciding as to what we should do , as I am more experienced. I signed a card for the Union and attended union meetings . In fact I handed out a few cards for the Union to other employees . Ernest Snover gave me the cards. He also handed out cards. Right after we handed the cards out in July I think Mr. Blair and I spoke in a tavern at night. No one else was there . We were drinking a few beers together . He asked me who the ringleader was who was starting the union and why. I told him that Snover passed out cards, and that I also passed out a few cards. I told him that we wanted more pay and protection . He asked me why, and I told him that a lot of promises he made never happened I also told him that Snover got the cards from the Union . Blair never asked me who attended union meetings. 783-133-66-vol. 151-69 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When I became acting foreman , Blair told me that if I did a good job I would become foreman some day. When I was told that I would be a permanent fore- man, it was a surprise to me. It will be noted that the witness Burgstresser omitted from the above prehearing statement any mention of his conversation with General Manager Blair about mark- ing his ballot in the election so that the company observer could detect his ballot from the others being counted. His explanation of the omission of such pertinent evidence was that he did not wish to expose his friend (Blair ), who had recently made him a permanent foreman . I must therefore conclude that Jack Burgstresser (while acting as foreman ) was creating the impression among fellow employees that he was supporting the Union, while concurrently keeping General Manager Blair informed about the organizational activities. It is, therefore , understandable why the Company would discharge Ernest Snover as the ringleader in the organizational campaign , and at the same time retain in its employment a turncoat foreman. The Board has often held that failure to discharge all employees engaged in union activi- ties is not reliable evidence to support a contention of Respondent . that a certain other known union supporter was not discharged for that reason. The testimony of General Manager Blair at the original hearing was evasive and uncertain with respect to his conversations with Jack Burgstresser . Blair could not remember whether Burgstresser told him that Ernest Snover was the ringleader, but was positive that Burgstresser denied taking any part in organizing the Union. He did recall , however, that "through the grapevine" he learned that Burgstresser , Snover, and Volpe were passing out union cards; and that on at least two occasions he dis- cussed the activities of these particular employees with President Carver by telephone at his office in Maplewood , New Jersey, and kept him informed as to what was going on at the Phillipsburg plant. Having previously found herein that General Manager Blair engaged in independ- ent violations of Section 8 (a)( I) of the Act by interrogating certain employees con- cerning attendance at union meetings in July 1963, and also by interrogating Jack Burgstresser ( employee ) as to who was the ringleader of the organizational activities, and concerning his own intentions about voting in the election , I cannot now agree with argument of counsel for the Respondent in his supplemetal brief that "there is a complete absence of antiunion activity and union animus on the part of this employer, City Gas Company of Phillipsburg." Having fully considered at the reopened hearing the prehearing written statement and further cross-examination of Jack Burgstresser , I find no additional evidence to require any modification in the findings , conclusions , and recommendations con- tained in the Trial Examiner's Decision issued herein on April 30, 1964. RECOMMENDED ORDER It is therefore recommended that the Trial Examiner's Decision , issued on April 30, 1964, be adopted in its entirety without modifications in the findings of fact, con- clusions of law, or recommendations set forth therein. Chemrock Corporation and Teamsters, Chauffeurs, Helpers & Taxicab Drivers Local 327, affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen, and Helpers of America. Case No. 26-CA-1590. March 24, 1965 DECISION AND ORDER On December 20, 1963, Trial Examiner Alba B. Martin issued his Decision in the above-entitled proceeding, finding that the Re- spondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in 151 NLRB No. 111.