Lone Star Gas Co.

National Labor Relations Board - Board Decisions

Sep 29, 1943

52 N.L.R.B. 1058 (N.L.R.B. 1943)

In the Matter of LONE STAR GAS COMPANY and OIL WORKERS INTER-
NATIONAL UNION, LOCAL #478
Case No. C4665.-Decided September 29, 1943
DECISION
AND
ORDER
4
On July 3, 1943, the Trial Examiner issued his Intermediate Report
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 that it take cer-
tain affirmative action, as set forth in the copy of the Intermediate
Report annexed hereto. Thereafter the respondent filed exceptions to
the Intermediate Report'and a brief in support of its exceptions. The
Union has not excepted to the findings and recommendations of the
Trial Examiner. The Board has considered the rulings made by the
Trial Examiner at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions
and brief filed by the respondent, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, except as noted below:
1. The Trial Examiner, in finding that the respondent interfered with
the statutory rights of its employees, has relied in part on statements
of Foreman Smith and Assistant Foreman LaQuey that the respond-
ent's employees did not have to join the Union to keep their jobs.' We
deem it unnecessary to decide whether these statements, under the
circumstances of this case, constituted interference, within the mean-
ing of the Act, since both Smith and LaQuey made other statements
to employees derogatory of the Union and tending to discourage mem-
bership therein. By thus disparaging the Union, by interrogating
various employees about union activities, by discouraging union mem-
bership 1 and attendance at union meetings, and by keeping the union
1 Although LaQuey denied that he had asked employee Parish not to join the Union,
as Parish testified, the Trial Examiner found LaQuey an unreliable witness. We therefore
find, as did the Trial Examiner , that LaQuey expressed to Parish the hope that the latter
would not join the Union.
52 N L. R. B., No. 183.
1058
LONE STAR GAS COMPANY 1059
meeting of February 1 under surveillance, the respondent clearly
engaged in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
2. The Trial Examiner has found that LaQuey knew of the union
meeting at Ranger on February 10, 1943, that he called at the homes
of employees Chaney, Moore, Alexander, and Parish for the purpose
of determining whether they had attended it, and that his decision
to discharge Chaney was "accelerated" Eby Chaney's presence at the
meeting. The respondent did not deny LaQuey's visits to the homes
of the four employees, but explained them by the mutually corrobo-
rative testimony of Smith and LaQuey that on the evening of Febru-
ary 10 Smith instructed LaQuey to check one of the gas lines because
of an expected freeze, and to have Moore report for work at Brecken-
ridge the following day. It is not disputed that LaQuey, after going
to the homes of Chaney and Moore and finding neither of them in,
took Parish with him to examine the gas line; that he left word at
the homes of Moore and Alexander for them to telephone him when
they returned; and that he later gave Moore the instructions he had
received from Smith regarding Moore, and arranged to haze Alex-
ander drive Moore to Breckenridge the next morning. There is no
evidence that LaQuey visited the homes of the other eight or nine
employees under his supervision, or that he attempted in any other
manner to learn their whereabouts. Under these circumstances, we
are not convinced, nor do we find, that LaQuey knew in advance of
the union meeting of February 10, or that his visits to the homes of
Chaney, Moore, Alexander, and. Parish were, for the purpose of deter-
mining whether they had gone to the meeting.
Furthermore, although there is some evidence from which it might
reasonably be inferred that during the course of the evening LaQuey
learned of the meeting and of Chaney's presence at it, and therefore
decided to discharge him, LaQuey denied that he had any such knowl-
edge. He testified, as to the reason for the discharge, that he had
found Chaney's work and attitude unsatisfactory ; that on February
10 he decided, because of Chaney's behavior when a mistake made
by the latter in a report was called to his attention, to ask Smith to
do something about the situation; and that, when Chaney failed to
stop that evening, as their cars passed on the lane leading to Moore's
house, he determined to ask that Chaney be discharged. LaQuey's
testimony as to the unsatisfactory nature of Chaney's work, particu-
larly during the latter part of his employment, was corroborated by
Smith and B. R. La Mance, the respondent's general field clerk; nor
is it necessarily inconsistent with Smith's testimony that in August
1942 he promoted Chaney because he liked Chaney personally and
"thought he would get along with the people," or with the evidence
549875-44-vol 52----6 8
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that in November Smith expressed the opinion that Chaney was doing
well in his work and was "the kind of a man 'the company needed."
Moreover, the record shows that in December 1942, before the respond-
ent had any knowledge of Chaney's interest in the Union, Smith re-
fused to, give Chaney a recommended increase in pay.
In. this state of the record, while it is undoubtedly suspicious that
LaQuey, who knew from his conversations with employees Matthews
and Archer on February 1 that Chaney had been urging the employees
to join the Union, and who had at that time shown his anti-union
attitude, finally decided to ask for Chaney's discharge on the very day
of the union meeting, we have some doubt that Chaney was discharged
because of his union activities during February 1943. On the other
hand, Smith admitted at the hearing that his decision to discharge
Chaney was made at least in part because of the fact that in October
1942 Chaney had urged employees to demand pay for time spent en
route to and from work, and that as a result of his urging the men
had gone on strike 2 Although there is no showing that this demand
was sponsored by the Union, it nevertheless constituted concerted activ-
ity for mutual aid on the part of the employees. Since the right to
engage in concerted activities normally leads to the formation of a
labor, organization, discharge of an employee for engaging in con-
certed activities is discriminatory within the meaning of Section 8 (3)
of the Act.'
We therefore find, on the basis of the respondent's admission that
Chaney's participation in and encouragement of the concerted activi-
ties of the respondent's employees in October 1942 was at least one of
the motivating causes of his discharge, that the respondent discrim-
inated in regard to his hire and tenure'of employment,4 thereby dis-
couraging membership in labor organizations , and interfering with,
restraining , and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
' while Chaney denied at the hearing that he had ever advised the employees to demand
pay for time going to and from work, it is clear from the testimony of Smith and of Oscar
Powell , the respondent 's truck driver and gang boss, that the respondent believed he had
done so.
8 See Matter of Cleveland Worsted Mills, 43 N. L. R. B. 545, 559 , and cases therein cited.
.See Matter of Consumers Research, Inc., 2 N. L R. B. 57, 73; Matter of The Dow
Chemical Company, 13 N. L R . B. 993, 1023 , enf'd N. L. R. B . v. Dow Chemical Company,
117 F. ( 2d) '455 ( C. C. A. 6 ) ; Matter of anted Dredging Company, New Orleans, Lour
suana, 30 N. L. R. B. 739, 766 (fn. 24) ; Cupples Company, Manufacturers v. N. L. It. B.,
106 F. ( 2d) 100 , 117, (C. C A. 8) ; Kansas City Power and Light Company v. N. L. R. ^8.,
111 F. (2d) 340, 349 (C. C. A. 8).
LONE STAR GAS COMPANY 1061
Board hereby orders that the respondent, Lone Star Gas Company, and
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its em-
ployees, by discharging or refusing to reinstate any of its employees or
in any other manner discriminating in regard to their hire and tenure
of employment or, any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to Charles B. Chaney immediate and full reinstatement
to his former or a substantially equivalent position, without prejudice
to his seniority or other rights or privileges;
(b) Make whole Charles B. Chaney for any loss of pay he has
suffered by,reason of the respondent's discrimination against him, by
payment to him of a sum of money equal to the amount which he
normally would have earned as wages from February 16, 1943, the date
to which he was paid following the respondent's discrimination against
him, to the date of the respondent's offer of reinstatement, less his net
earnings during such period;
,
(c) Post immediately in conspicuous places in and about its Pueblo
plant, located near Moran, Texas, and maintain for a period of at least
sixty (60) consecutive days from the date of posting, notices to its
employees stating : (1) that the respondent will not engage in the
conduct from which it is ordered to cease and desist in paragraphs
1 (a) and (b) of this Order; (2) that it will take the affirmative action
set forth in paragraphs 2 (a) and (b), of this Order; and (3) that the
Iespondent's employees are free to engage in concerted 'activities for
the purpose of collective bargaining or other mutual aid or protection
and that the respondent will not discriminate against any employee
for engaging in such activity;
(d) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
CHAIRMAN MILLIS took no part in the consideration on the above
Decision and Order.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. Bliss Daffan, for the Board.
Mr. Marshall Newcomb and Mr. Warren J. Collins, of Dallas, Texas, for the
respondent.
Mr. C. Massengale, of Ranger, Texas, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed by Oil Workers International Union, Local
#478, affiliated with the Congress of Industrial Organizations, herein called the
Union, the National Labor Relations Board, herein called the Board, by the
Regional Director for the Sixteenth Region, (Fort Worth, Texas), issued its com-
plaint dated April 23, 1943, against Lone Star Gas Company, Dallas, Texas, herein
called the respondent, alleging that the respondent had engaged in and was en-
gaging in unfair labor practices within the meaning of Section 8 (1) and (3) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint, 'accompanied by notices of hearing
thereon, were duly served upon the respondent and the Union.
With respect to the unfair labor practices the complaint as amended alleged,
in substance that the respondent : (1) on or about February 13, 1943, discharged
Charles B. Chaney, and has since that date failed and refused to reinstate or
reemploy him for the reason that he joined or assisted the Union, or engaged in
other concerted activities ; and (2) through its agents E. B. Smith and E. C.
La Quey, from on or about January 1, 1943, to the date of the complaint has (a)
disparaged and expressed disapproval of the Union, (b) interrogated its employees
cencerning their union affiliations, (c),urged, persuaded, threatened and warned
them to refrain from assisting the Union or becoming and remaining members
thereof, (d) threatened them with discharge if they joined or affiliated with the
Union, and (e) kept the Teeting places and activities of the Union under surveil-
lance.
On•or about May 1, 1943, the.respondent filed its answer denying its corporate
structure as alleged in the complaint ; qualifiedly admitting it is subject to the
Act ; admitting that the Union is a labor organization within the meaning of the
Act; and denying that it had engaged in the unfair labor practices alleged. It
affirmatively alleged that the discharge of employee Chaney was justified by
respondent's "basic and normal rights of management."
Pursuant to notice, a hearing was held at Eastland, Texas from May 20
through May 26, 1943, before Peter F. Ward, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board and the respondent were repre-
sented by council and the Union was represented by a' representative. Full
opportunity to be heard, to examine and cross-examine witnesses and to intro-
duce evidence bearing upon the issues was afforded all parties. At the close
of the Board's case and at the close of the hearing, counsel for the Board made
a motion to conform the complaint to the proof, with reference to names, dates,
and minor variances. This motion was granted by the undersigned. At the
close of the hearing, counsel for the respondent made certain motions for dis-
missal of the complaint, on which the undersigned reserved ruling. For the
reasons set forth below, they are hereby denied. All parties were afforded an
opportunity to file briefs with the undersigned, but no briefs have been received.
Oral argument, participated in by counsel for the Board and the respondent
was had 'on the record at the conclusion of the hearing.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes, in addition to the above, the following:
LONE STAR GAS COMPANY 1063
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT 1
The respondent, in this section called the new company was duly incorporated
on December 11, 1942, as a Texas corporation. On January 1, 1943, it duly
succeeded to the property, business, and assets of Lone Star Gas Company, a
Texas corporation, herein called the old company, incorporated on June 4, 1909.
The new company succeeded the old company pursuant to a plan of,reorganiza-
tion approved by the Securities and Exchange Commission on October 22, 1942,
acting pursuant to the Public Utility Holding Company Act of 1935. The old
company was then dissolved December 31, 1942. The respondent has its prin-
cipal office and place of business at Dallas, Texas, and is engaged in the pur-
chase, sale, transmission, and distribution of natural gas and its related prod-
ucts. In the conduct of its business, respondent owns and operates a system
of pipe lines, through which natural gas is transported to various localities and
municipalities in Texas and Oklahoma.
For the year of 1942, of the total cubic feet of natural gas purchased and/or
produced by others, 89.2 percent of the purchases were from sources in the State
of Texas, and 10.8 percent were from producers in the State of Oklahoma, which
was transported into the State of Texas for sale to consumers in Texas. For
the same period approximately 2 billion cubic feet of gas was sold and distributed
to consumers in Oklahoma, of which 25 percent was purchased or produced in
Texas.
During the year 1942, the old company purchased and/or produced and dis-
tributed natural gas in the approximate amount of 65 billion cubic feet, a major
portion of which was sold to domestic and industrial consumers in Texas, in
the cities of Trinidad, Leon, Dallas, Ft. Worth and Waco. The respondent
admits, for the purpose of this case that it is engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED
Oil Workers International Union, Local #478, affiliated with the Congress of
Industrial Organizations, is a labor organization admitting to membership em-
ployees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
Prior to October 1942 there had been no union organizational activity among
employees employed by the respondent in the Moran and Pueblo district of its
pipe-line system, herein called the Pueblo district. During October 1942, em-
ployees of the Lone Star Producing Company, herein called the Producing
Company, whose territory overlaps that of respondent's pipe-line system in the
Pueblo district, began a campaign to organize its employees. As a result of such
activity the pipe-line employees became interested in self-organization. Some
time that month all but 1 or 2 of the 13 pipe-line employees attended a union
meeting of the Producing Company employees at Ranger, Texas, for the purpose
of becoming members, but were informed that pipe-line employees were then
ineligible to affiliate with the Producing Company employees in a single local
union. The pipe-line employees left the meeting with a request that "if they
could take us in, to let us know ..."
1 The facts found in this section, were stipulated at the hearing.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following this meeting at Ranger, Charles B. Chaney, a utility man. at the
Pueblo district, continued to encourage concerted activities among the pipe-line
Employees. It was the respondent's policy not to pay its employees for time spent
going to and from their work. Chaney urged certain employees to "stick together"
to the end that "they would get time for riding out to and from the job," and
talked to many of the men "about their small wages and long hours, no riding
time." As a result of Chaney's activity a number of the employees on one occa-
sion staged a short strike in that "the men sat down on the job and demanded
time en route." According to Foreman Smith, employee Oscar Powell, a truck
driver and gang boss in the absence of the foreman, had complained to Smith
that Chaney "was causing unrest out there, and that he understood from these
men they were going to strike." ` Smith also testified :
Q. What about the strike business?
A. It occurred.
Q. And why were they striking?
A. Because Charles (Chaney) had encouraged that they demand time en
route to and from the job.
As a result of this action, Smith accused Chaney with not "cooperating" with
Powell. Smith further advised Chaney that it was not the "policy" of the re-
spondent to make such payments and directed him to cooperate with Powell in
the future.
At about this time Assistant Foreman La Quey instructed Chaney to prepare a
certain form used by the respondent in recommending pay increases for its em-
ployees, and to list thereon the names of four of the employees. Chaney was in-
cluded in the list, and as to him the recommendation was for an increase from
$125 to $140 per month.
On or about January 28, 1943, Chaney and Weldon C. Alexander, storekeeper
at-the Pueblo district, arranged with the Union to hold a meeting of the pipe-line
employees at "Grace's filling station" in Moran, Texas,' on the night of February 1,
at which meeting O. B. Denny and N. E. Landers, respectively the Union president
and secretary, were to attend. Chaney and Alexander each had desks in the
Pueblo district office where the employees congregated in going to and coming
from work. They were thus in a position to, and did inform the employees of the
proposed meeting. They spoke in favor of the Union, suggesting that it was
advisable to join it on February 1, when the initiation fee was $2, for there was
a possibility that it would be increased at a later date.
On the morning of February 1, LaQuey talked to employees James Matthews
and Boyce Archer separately, and each told him of the proposed meeting.
Archer stated that Chaney and Alexander had said that the respondent was
going "100 per cent union." Matthews told LaQuey that Alexander had in-
formed him that if he did not join he would "sooner or later" lose his job;
that the initiation fee was then $2 and might be $25 or more later. LaQuey
told each of them in substance that while he knew nothing about it, he would
talk to Foreman Smith and would let them know later of Smith's reaction.
Employee Basil B. Hitt testified that on the same day while he was in La-
Quey's automobile, the prospective union meeting was discussed and that LaQuey
said that he " . . . didn't believe in the union, and didn't believe it would be
the thing for me to do to join it."
LaQuey also contacted employees Henry J Pence and Frank Moore at their
work in the field that day. Moore initiated the discussion about the Union.
7 Moran, Texas is a town about 7 miles from the Pueblo plant . "Grace's filling station"
is a place where employees frequently gathered.
LONE STAR GAS COMPANY 1065
Since he had been working for the company quite a while, he ". . . didn't
think it would be right for us boys to all join the union without consulting the
boss man about it, so I asked Buster [LaQuey] what he thought about it."
LaQuey replied by suggesting that Pence answer the question. When Pence
stated that he knew nothing about the Union ;'was not in it "at the present
time" ; and was green about it, LaQuey said, "Well, I will say this,-I don't
know anything myself, but I don't think it will do you any good." s LaQuey
then added : "You all need your money as bad as I do,-I imagine that the fees and
dues and all, you won't get much more out of it [the Union]."
Employee Carlton Brown testified without contradiction, and the undersigned
finds, that on February 1, LaQuey asked Brown to drive him to his house at
dinner time, and that LaQuey asked Brown if he intended to go to the union
meeting scheduled for that night. Brown replied that he "didn't know for
sure." In the course of their conversation LaQuey compared unions to magazine
agents who took subscriptions, received pay therefor, and subsequently failed
to deliver the magazines to the subscribers. He also questioned Brown concern-
ing his intentions toward joining the Union. Brown replied that he thought he
would join "if it would get me more money."' LaQuey then stated that "the boys
were supposed to get a raise out there (Pueblo plant)."
On the same day at about 4: 30 p. in. LaQuey telephoned Smith at Ranger
and told him of his conversations with Matthews and Archer concerning "the
company going 100 percent union " Smith then met with LaQuey at Cisco,
Texas for further discussions concerning the impending union activity of the
pipe-line employees.' According to both Smith and LaQuey, Chaney's was the
only one of any of the employees whose name was mentioned at the Cisco con-
ference, as having sought information about the respondent's attitude towards
the unionization of the pipe line employees.'
When LaQuey returned to the plant from Cisco, he found Chaney in the
office. He and Chaney then discussed the proposed union meeting planned for
that night, LaQuey saying to Chaney, "Well, I thought maybe you would have
said something about that before now to me." Chaney thereupon asked LaQuey
what he thought about the Union, and the latter replied that he "sure would
hate for the boys of Pueblo to be the first to join, . . ." and called Chaney's
attention to the fact that he had just been recommended for another raise; was
doing well with the company ; and that Smith "likes you an awful lot, and
by the time you have been with the company as long as I have, you will prob-
ably be doing real well."'
' Unless otherwise stated, emphasis wherever indicated in this report, is supplied.
' The findings relating to the various conversations among LaQuey, Matthews, Archer,
Hitt, Moore, and Pence are based upon the credible and mutually corroborative testimony of
Matthews, Archer, Hitt, Moore, and Pence. For reasons set out hereafter, LaQuey is not
a credible witness.
' While LaQuey was on his way to Cisco, Smith telephoned Chaney to meet with him
that night at Ranger . When Chaney stated that he did not know whether be could get
there, Smith replied, "Well, Charles, you have always confided in me, and I want to confide
in you . . . I will call you back later " Chaney did not hear from him again that day.
Smith testified that he telephoned Chaney and stated that he wanted to see him, but that
he did not tell him why. On cross-examination he stated that he wanted to see him "about
the several complaints about his work in the past." Smith further testified :
Q. As a matter of fact, Mr. Smith, didn't you want to talk to Mr. Chaney about the
fact [Union organizing] that LaQuey had mentioned to you over the phone?
A. I might have. I probably would have talked to him about it too.
' Of the 12 or 13 employees , Matthews , Archer, Moore , and Pence were the only employees
who asked LaQuey any questions or volunteered any information concerning the Union prior
to the Cisco meeting between Smith and LaQuey.
7 This finding is based on the credible testimony of Chaney.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LaQuey then left Chaney, intent on talking with as many employees as pos-
sible, before the time set for the union meeting. He first went to Moore's home
and advised him that he had talked with Smith and that the latter had stated
the respondent's labor policy to be "that to join or not to join wouldn't have any
reflection upon a man being hired or fired" LaQuey then asked Moore if he
intended to go to the meeting and when Moore stated that he did LaQuey told him
that he would rather he did not go. Moore testified that he told LaQuey that
since LaQuey felt that way "I would put up my car and wouldn't go, and that
is what I done." 8
LaQuey also called on employee Alexander and asked him if the employees
were going to the meeting that night, and when Alexander replied that he
thought all of them were going, LaQuey stated, "I sure hate to see this little
tail end of the company be the first ones to join. . . . I believe there is two
sides to every questions, (sic) and like to see both sides have a fair chance. . . .
I don't know much about unions , but I don't believe that you would like it"
Then LaQuey spoke of a friend who had gone to work in a defense plant where
he had made good money, "but he joined the union, and it seemed as though it
cost him so much for fees and first one thing and then another that he didn't
get so much out of it. .."
LaQuey's version of the conversation with Alexander was substantially as
follows : "You [Alexander] work under a little 'different department head than I
do,. but . . . the boys have approached me today on the subject of this union
organization. . . . They told me that you are going to have to join to keep on
working for the company; that the company is going 100 percent union. . . .
Haven't you been told something like that?"; that Alexander replied, "No, I
don't believe I have, Buster . . . but it is coming ; the union is going to be
organized... " LaQuey admitted that on this occasion he stated to Alexander,
"I would hate for the boys that are working up here under me to be the first
ones to get into it (Union)." Alexander was a credible witness. Insofar as
the testimony of LaQuey and Alexander is in conflict, the undersigned accepts
that of the latter.
LaQuey testified that he next went to employee Parish's home, and finding him
absent, he then went to Moran, Texas, and located him at a gasoline filling sta-
tion. He testified that he and Parish talked in LaQuey's parked car, and that
Parish told him that he was "... just' coming up here to see what they had
to offer." LaQuey further testified :
Q. Well, did you say anything further?
A. I told him that the way they were putting it to the boys, that if they
didn't join that they would be bumped off their jobs, and if they didn't join,
they would have to pay more, that it would cost them twenty-five or fifty dol-
lars if they didn't join that night, I told him that I thought that was
just hooey, and I told him too that I didn't believe the union would help
him much.
LaQuey also said that he knew a person who had quit a job, joined a union,
and had gotten better wages. He then added that he did not think that person
8 LaQuey admitted that he went to Moore's house but denied asking him not to go to
the union meeting. He testified that he had told Moore that the employees did not have
to join the Union to work for the company and that Foreman Smith had said "that to
join or not join wouldn 't have any reflection upon the man being hired or fired" He
admitted that Moore told him that he would not attend the meeting. In view of LaQuey's
lack of credibility as indicated hereinafter , the undersigned credits and accepts Moore's
version of the conversation and finds that LaQuey requested Moore pot to go to tiie
union meeting and that Moore agreed to heed the request.
LONE STAR GAS COMPANY 1067
had bettered himself because of union dues expenses , and higher rent, and stated
"I hope you don't join that damned thing. . . . "Well , maybe I shouldn't say
`damned thing ' it may not be that bad " °
LaQuey also visited employee Matthews and advised the latter that he had
talked to Foreman Smith and learned "that joining the union or not joining the
union would not have anything to do with hiring or firing any man." LaQuey had
thus succeeded in contacting that day about 3/4 of the employees before the
meeting was scheduled to be held. Other than Chaney and Alexander none of the
pipe-line employees appeared , at the meeting, nor did any of them - join the
Union at this time.i0 For some time during the progress of the meeting,, LaQuey
was present near the place where the meeting was being held ." When the meet-
ing adjourned, he was introduced by Alexander to Denny and Landers, the two
Union officers who were present at the meeting. The introduction took place out-
side of the meeting place.
On February 2 or 3, Foreman Smith while at the Pueblo plant learned from
LaQuey that the latter had talked to all of the pipe-line employees and that he
had said to them "that it was the company's policy to be strictly neutral." Smith
however, according to his testimony, determined to talk further to some of the
employees, "because I wanted to be sure that they understood our policy." Smith
then contacted employees Moore, Wilson, and Pence in the tool house, where ac-
cording to Pence, Smith stated to him that he wished to see Pence and Wilson
personally , at the same time excusing Moore with the statement , "I will see you
later." Pence testified as follows :
Q. O. K. then what did he say?
A. Well, Mr. Moore walked out, so he called us around there, and he
says, "Boys , I guess you have heard about this some kind of a union that is
coming in the company," and he says, "I don't know what you would call it,
a Ku Klux, or something, but anyway, you don't have to belong to it to
work for me," and he says, "I don't think it will do you any good," and he
says, "If you need your money as bad as I do, I would rather have mine
in my pocket," or something of that sort.
Wilson sustantially corroborated Pence as to this event, and he testified-as
follows :
Q Just describe what occurred on that occasion.
A Well, he came in and said he wanted to talk to Mr. Pence and myself,
and told Mr. Moore that he would like for him to leave the toolhouse until
he had finished talking to us, and then he would like to talk to him, and he
said,) "Henry, you and Tommie, I want to tell you that there is an organiza-
tion of some kind trying to mess you boys up, and organize you boys, and
this organization is kind of like the Ku Klux Klan," and he says, "I
know you don't have the money, and I don't have the money to join or to
pay the high prices that they charge, and I don't believe it will do you
O The findings in this paragraph are based in the main upon Parish's testimony and
on LaQuey 's admissions . While LaQuey attempted on cross-examination to deny a part of
his direct testimony, he was not questioned concerning the last statement in the above
paragraph , nor,is it otherwise disputed.
10 While Chaney and Alexander did not join the Union , they did however secure a supply
of membership applications for use at a later date
1' In support of the allegation in the complaint which charged surveillance of the Union's
meetings there is sufficient credible evidence in all of the circumstances of this case to
sustain the surveillance charge, and the undersigned so finds. LaQuey testified that when
he drove by the meeting place several times during the progress of the meeting, he was
engaged on a personal errand. As hereafter indicated LaQuey is not a credible witness.
106$ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any good even if you do join," and at that time Mr. Moore came back into.
the toolhouse and said, "Is that-what is that, Mr. Smith, some sort of a
union?" and Mr. Smith said, "Yes, Frank," and he said, "I would like to
talk to you now," and he said, "Henry, you and Tommie can go out," so
we left the toolhouse and he talked to Mr. Moore.
Following his talk with Pence and Wilson, Smith talked alone to Moore and
according to the latter, Smith stated in substance, that he "wasn't talking against
or for anything" and that Moore had worked for the company long enough to
know that he did not have to belong to a union to hold his job with it. Moore
further testified that Smith stated "that the company had run its business all
of the, time by itself, and didn't need any outsider to help it run their busi-
ness now." u
Smith admitted talking to the three above-named employees on the occasion
referred to, but denied making any reference to the Ku Klux Klan or that he
had made any anti-union statements'
B. The events of February 10 to 13; the discharge of Charles B. Chaney
On February 10, about 10 of the pipe line employees, includilig Chaney, Moore,
and Alexander, attended a meeting of the Union at Ranger. Moore accompanied
Chaney in the latter's automobile. Before they reached the meeting they secured
signed membership applications from other employees who were unable to attend.
After Chaney and Moore had left for the meeting LaQuey called at Chaney's
home. H. W. Brooks, Jr., 12 years of age, who happened to be there, answered the
door, and when LaQuey asked if Chaney was in, Brooks, Jr., replied "No, sir, he
went to the meeting," whereupon LaQuey left.14 From Chaney's house LaQuey
went to the home of employee Moore where he was told by Moore's wife that he was
out. LaQuey next went to the home of Parish 15 and told him that he was having
some trouble on one of the gas lines and would like to have Parish accompany
him. After a change of clothes, Parish went with LaQuey, to a meter house on
the line about a mile north of Moran. Upon arrival they found that there was
nothing necessary to be done 38 LaQuey then returned Parish to the latter's home.
At about 11: 15 p. m. he again went to Chaney's house, and finding him still absent,
he then proceeded to the home of employee Alexander. The latter was not in, and
LaQuey left word with Mrs. Alexander to have her husband telephone him as soon
as Alexander came in. He then returned to Moore's home for the second time
that evening and again finding him out, left word with Mrs. Moore to have him
telephone LaQuey when he returned.
Respondent contends that LaQuey's visits to the homes of the above named em-
ployees on the night of the union meeting was purely coincident with an emergent
12 In a written statement solicited by E. F. Schmidt, the respondent's vice president
and general manager, hereinafter discussed, employee Hitt stated ".. . I was in some-
what of a doubt as to joining the union after Mr. Smith talked to me ; as he said I did not
have to belong to any union to work for the Lone Star Gas Co "
11 In view of Smith's equivocal, evasive, and inconsistent testimony generally, and his
evident determination to prevent the pipe-line department employees from joining a union,
the undersigned does not credit Smith's denials. Wilson, Pence and Moore, on the other
band appeared to be fair and truthful witnesses.
14 LaQuey testified that when he asked if Chaney was home, young Brooks replied "No,
be isn't." LaQuey's other testimony in this connection was evasive and not convincing.
The undersigned credits the testimony of Brooks, Jr.
15 Parish had not attended the Union meeting due to the illness of his wife.
is That LaQuey must have known that the gas line trouble was not serious is apparent
from the following : When LaQuey asked Parish to come with him, the latter proceeded to
change into work clothes, whereupon LaQuey said "Well, it is not necessary to change.
I don't think there is much to do."
I
LONE STAR GAS • COMPANY 1069
situation which had arisen in the field, and which required the attention of its
employees. It maintains that it is for that reason that Foreman Smith tele-
phoned LaQuey at about 9:30 p. in. that night and instructed him to have Moore
sent to Breckenridge, Texas, and to check the gas line to see that dehydrated gas
had been switched into it ; that LaQuey first went to Chaney's house in order to
have Chaney accompany him to the gas line and to arrange with him to take
Moore to Breckenridge; that finding Chaney and Moore absent he located Parish
who then went with him to the gas line; and that LaQuey having that night
decided to discharge Chaney he determined to have employee Alexander take
Moore to Breckenridge . LaQuey at first contended that he did not know of the
Union meeting held at Ranger that night or that Chaney, Moore, and Alexander
went to the meeting. However, on cross-examination LaQuey admitted "I didn't
know it [that Chaney had gone to the meeting] for sure." 17 Moreover, LaQuey's
disclaimer of knowledge that the Union meeting was then in progress has no
support in the record. As above set forth, Brooks, Jr., told him that Chaney had
gone to the meeting. Furthermore, Parish testified credibly that when LaQuey
asked him to go with him that evening to repair a gas line, LaQuey said "that the
boys was all gone from home" and "I think he asked me-if the boys had all gone
to Ranger, (where the Union meeting was held) or something like that" and that
following that, LaQuey "brought up the subject (of the union)."
LaQuey's further contention that it was necessary for someone to accompany
him to the gas line on that evening is likewise without merit. Smith testified
that it was only necessary to switch low pressure "or wet gas" out of the line and
to switch dehydrated gas into the line. LaQuey discovered that the switch had
already been made on his arrival at the line.'
LaQuey was not a credible witness. From the foregoing, and on the entire
record, it is clear and the undersigned so finds, that LaQuey knew of the Union
meeting at Ranger and called at the homes of the employees above described, for
the purpose of determining whether or not they had gone to the meeting."'
On February 11 LaQuey took Chaney to work with him in the field. The next
day, Chaney was laid off for the day. On February 13, Chaney again went to
17 LaQuey testified that he was angry because Chaney had failed to stop his automobile
to talk with him as their automobiles approached each other on a highway that night.
It is apparent that Chaney's presence at the Union meeting and not the automobile
incident accelerated the decision to discharge Chaney, and the undersigned so finds.
15 The record is replete with LaQuey's equivocal testimony. The following is an example
of his unreliability as a witness . On direct examination concerning his conversations with
Parish on February 1, above referred to, LaQuey testified :
Q. Well, did you say anything further?
A. I told him that the way they were putting it to the boys, that if they didn't
join they would be bumped off of their jobs, and if they didn't join, they would have to,
pay more, . . . if they didn't join that night, I told him that I thought that was
just hooey, and I told him too that I didn't believe the union would help him much.
On cross-examination he testified as follows :
Q. Well, you testified on direct examination that you also told him (Parish) that
the way they were putting it, the union wouldn't help him much, didn't you?
A. I don't remember whether I told him that or not.
Q. Well didn't you testify to that on direct examination?
A. That the union wouldn't help him any?
Q. Yes.
A. No.
Q. Didn't you testify that the way they were putting it, the union wouldn't help
much , or something to that effect?
A. I don't recall if I did.
19See footnote 14, supra.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0
the field with LaQuey where at about 3 o'clock in the afternoon Foreman Smith
called him aside and said, "Charles, your work has been very dissatisfactory ; I
want you to hunt another job." Chaney then replied that he thought it "very
funny" that his work became "so dissatisfactory so sudden." Smith and LaQuey
then drove Chaney back to the plant, and Smith admonished Chaney to "cause no
trouble." Chaney was told that he would be paid to and including February 16,
at which time he went to LaQuey for his check. A discussion followed as to the
cause of discharge, LaQuey saying, "Well your work has been very dissatisfactory,
and you misrepresent the truth."
The complaint alleges that Chaney was discharged because of union activities.
The respondent in its answer alleges that Chaney "over a long period of time
established that he was inefficient, insubordinate, insolent, non-cooperative, and
disobedient" ; that he failed to perform his work properly, all of which, "together
with his attitude, contrary to Respondent's policy," was "disruptive of the morale
and efficiency of said Respondent's other employes."
In support of some of the allegations in the answer, the respondent offered
the following proof :
1. That about June 1942 Chaney•failed to show the proper respect for Boyd
LaQuey, the then assistant foreman to whose job E. C. LaQuey succeeded. Fore-
man Smith testifying about this admitted however, that within 2 months there-
after and despite such lack of "respect," Chaney was promoted to a better position
as a "utility" man.20
2. That Boyd LaQuey complained some time after Chaney's promotion, that
he was deficient in making a field sketch. However, Smith apparently did not
regard it as a very serious matter, for he stated he didn't believe that he spoke
to Chaney about it 21
Other reasons given by the respondent for Chaney's discharge were:
1. That about January 1, 1943, Chaney neglected to transmit to another
employee certain of LaQuey's orders in connection with the "Tomlin" well, and
that therefore the well was caused to "go dead." After much conflicting testi-
mony on the part of respondent's witnesses, it was clearly developed that Chaney
had in fact delivered certain instructions,to employee Brown, a "pressure" man,
in accordance with LaQuey's orders. Brown testified credibly and the under-
signed "finds, that late in December 1942 or early in January 1943, he received
and followed the instructions given him by Chaney.
Furthermore, Charles T. Dean, the respondent's production engineer in the
Pueblo district, in testifying as to the possible reason which caused the well
"to go dead" stated :
21 Chaney was first employed by the respondent in December 1940 as a laborer at 45
cents an hour. About 6 months later he was rated as a line repairman and his wages were
Increased to 60 cents. About August 12, 1942, be was promoted to the position of utility
man by Foreman Smith, who testified that he had been so selected because Smith thought
he was the best qualified man at the Pueblo field for that job As utility man Chaney was
employed part time in the office, first under Boyd LaQuey, then assistant foreman, and
after November 21, 1942, under Ernest C. LaQuey, who succeeded to Boyd LaQuey's position.
Chaney lived in a respondent-owned house at the Pueblo plant, and in case of an emergency
was subject to call at any time.
u It is clear from the record that the respondent did not consider the foregoing com-
plaints as to Chaney's work other than minor ones, since as heretofore stated Chaney was
promoted after the first incident occurred, and was recommended by LaQuey for an increase
in pay after the second event. It is apparent,tbat these alleged complaints were merely
afterthoughts to provide ostensible rather than real reasons for discharge, and the
undersigned so finds.
LONE STAR GAS COMPANY 1071
Q. And there are more reasons than one why this well quit producing or
why any well quits producing?
A. Yes '
2. That Chaney on or about December 31,' 1942, neglected to "shut-out" certain
wells as instructed to do on the occasion of a certain blow out which resulted in
the injury of employee Bartee. It is clear from the evidence in this connection
that Chaney assisted by employee Powell did "shut-out" certain wells in one part
of the field and that he understood from LaQuey that his instructions were limited
only to those particular wells. LaQuey's errand in removing the injured Bartee
from the field to the near by town of Cisco, took but a comparatively short time
the evidence indicates that he could and did reach the other portion of the field
sooner than Chaney could have under all the circumstances. Upon his return
from Cisco, LaQuey shut the wellsJocated-in that part of the field. The under-
signed is convinced and finds that Chaney followed LaQuey's instructions on this
occasion. '
3. That Chaney was an inefficient clerical worker in connection with paper
work in the office. The record discloses that Chaney had had no experience
as an office employee prior to his promotion to "utility man" and had not had
sufficient experience in office work to be expert at it.'3 Even if true the evidence
shows that Chaney's clerical errors were not the real cause of discharge, but on
the contrary were mere pretexts, for respondent examined into at least one of
them after Chaney's discharge. LaQuey admitted on cross examination, "the
following Sunday after he (Chaney) was laid off, I . . . checked up on him."
The record indicates that prior to his-renewal of activity in behalf of the
Union in February, 1943, Chaney was regarded as an unusually satisfactory
employee. Smith testified that he put him in the office because "I thought he
had a good personality and I thought he would succeed there, and I liked him
personally and I thought he would get along with the people." He stated further
that he had a personal interest in Chaney and that "I would say that he was a
better prospect for advancement and capable of assuming more responsibility."
Bartee, a credible witness testified that sometime in November 1942, he overheard
a conversation between Smith and Vandercook" in which Smith stated, in sub-
stance that he thought Chaney was doing well in his work and that he was going
to make the company a good man. Y' Lowe Wallace, a resident of Ranger, is
employed by the Gasoline Plant Construction Corporation and occasionally works
on the respondent's property. He testified that in November 1942, in a conversa-
tion with Smith, the latter said that Chaney was "an A-1 hand, . . . the kind of
za In addition to the reasons for the finding set out in footnote No. 18 supra, that LaQuey
was an incredible witness, is LaQuey's equivocal , testimony concerning the "Tomlin" well
incident . On cross -examination LaQuey admitted.
Q. Did you go out and investigate the well?
A. No, I didn't go out there and investigate the well.
Q. Did you talk to Brown?
A. No, I never talked to Brown about it.
Q. Suppose it had been Brown who hadn't followed the instructions?
A. Well, I don't know about that.
Q. You didn't try to find out, did you?
A.No,...
ra B It . LaMance was "general field clerk." , He testified on cross-examination that "only
once" did Chaney have substantial errors in payroll records. He added however that this
occurred immediately after there had been a change in the form of payroll reports.
z" Vandercook holds a higher position than Smith does with the respondent
26 LaQuey testified on cross-examination that during the investigation by an agent
of the Board, "I might have told him" that he recommended to Smith that Chaney be given
a raise because Smith thought well of Chaney.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a man the company needed." Joe Francis, superintendent of the respondent'¢
gasoline plant at Pueblo, testified that he never heard LaQuey say anything "bad"
about Chaney's work.
That Chaney's concerted activity in October 1942, for additional pay for time
consumed in transit on the job, was later (in February 1943) seized upon as one
of the persuasive facts resulting in his discharge is shown by the cross-examination
of Foreman Smith who testified as follows :
Q. Did you have any objection to Chaney . . . telling them [the employees],
that . . . they ought to have pay for going to and from work?
A. Yes, I did.
* * * * * * *
Q. Did you take it into consideration when you finally discharged him?,
A. I probably . . . that probably did have some effect.
Q. It did have some effect?
A. Yes, sir.
* * * * * * *
Q. Well, did you think there was anything wrong with Chaney telling them
to ask for it [pay for travel time] It
A. As a matter of fact there was.
Q. What was wrong with it?
A. Because he was undermining the policy of the company and he knew it.
C. The events following the discharge of Charles B. Chaney
Following Chaney's discharge on February 13, the Union complained to re-
spondent's officials that Smith and LaQuey had interfered with the self-organiza-
tion of the pipe line employees. Thereupon E. F. Schmidt, respondent's vice-
president and operating manager, instructed Smith amd LaQuey to procure written
statements from the employees bearing upon the Union's complaint.
Smith and LaQuey then canvassed the employees, and obtained a number of
statements which after delivery to Vice president Schmidt, were not considered
by him to be satisfactory. On cross-examination Schmidt admitted that the em-
ployees' statements indicated on their face that the employees' rights had been
interfered with. He then asked Smith and LaQuey to get further statements 2'
Employee Basil Hitt furnished an initial statement, which in part provided :
"Mr. Smith told me that any one did not have to join anything to work for the
Lone Star Gas Co." and that "Mr. LaQuey told me there was going to be a meeting
of the union but he hoped no one went." Hitt added a postscript to his state-
ment as follows : "P. S Mr. LaQuey also said that he did not believe in this
union . . ." Hitt's second signed statement was in question and answer form,
LaQuey asking and writing down the questions as well as the answers. Among
such questions and answers were many concerning Chaney and the latter's atti-
29 The record shows that the employees whose written statements were solicited, were
told what to write by LaQuey and Smith . As an instance, employee Thomas A . Wilson
testified credibly,
Q.... did you write . . . what you were told to write by Mr . LaQuey and .. .
Mr. Smith?
A. Well, yes, I did.
Q. . . . I also hand you respondent 's exhibit 10. I will ask you if you wrote . . .
what you were told to put in there by Mr. Smith and Mr. LaQueyi
A. Yes, sir . This first paragraph was practically dictation.
Q. . . dictation from whom?
A. From Mr. Smith, who told me the exact words to use.
LONE STAR GAS COMPANY 1073 '
tude towards his work and his union activities. With reference to LaQuey
personally, Hitt answered questions as follows :
Question : Mr. Hitt in a previous statement you stated Buster LaQuey said,
"there is going to be an union meeting" and he hoped no one went. Were
there anyone present other than Buster LaQuey and yourself?
Answer : I don't think so.
Question : Is this the only thing you ever heard LaQuey say for or against
an organization?
Answer : No, LaQuey told me that he did not believe in an union and did
not believe it would be the thing for me to do, if I should join the union.
Employee Moore furnished respondent with a written statement which too was
thereafter supplemented by a statement in the form of questions and answers.
He testified that in discussing with LaQuey' the proposed contents of the ques-
tionnaire he told LaQuey that he had previously given an affidavit to the Union
in which he had recited that on February 1, as discussed above, LaQuey had asked
him not to go to the Union meeting that night. According to Moore, he and
LaQuey then agreed that nothing be said in the questionnaire regarding the
February 1 occurrence. LaQuey at first admitted that he and Moore discussed
the February 1 conversations but that he did not remember what was said at the
time the questionnaire was being discussed. He later changed his testimony and
stated that the February 1 incident was not discussed. From the record, it is
clear that LaQuey and Moore did discuss the February 1 conversations and that
at LaQuey's suggestion no mention of it was made in the questionnaire.
D. Concluding findings
1. Interference, restraint and coercion; the discriminatory discharge of
Charles B. Chaney
As above found, the respondent's pipe-line employees became interested in self-
organization in October 1942. At this time also, employee Chaney was the spear-
head in persuading the employees to demand pay for time in transit between the
plant and the field job. The respondent knew of Chaney's activities and con-
sidered such activities to violate its "policy" against such wage payments. It also
regarded the short strike which followed, to be Chaney's responsibility.
On the morning of February 1, 1943, respondent learned from two of its em-
ployees that Chaney and another employee had arranged a meeting of the Union
for that evening. Thereupon Assistant Foreman LaQuey spoke to some of the
employees during the afternoon and evening. LaQuey, in discussing the desir-
ability of the Union made many anti-union remarks some of which he admitted!'
LaQuey first telephoned to, and then met with Foreman Smith late that afternoon
and informed him of the impending unionization of the pipe-line employees.
While LaQuey was en route to meet with Smith, the latter telephoned to Chaney,
and apparently referring to Chaney's leadership in the union activity stated that
he wished to see him that day because he wanted to "confide" in him. After
LaQuey returned from his meeting with Smith he talked with Chaney about the
Union meeting set for that evening, and stated that he "sure would hate for the
boys of Pueblo to be the first to join." That evening, before the time scheduled
for the holding of the meeting LaQuey talked with at least four employees- at
n Respondent's counsel in the oral argument at the conclusion of the hearing said :
"I realize ... that when LaQuey told Parish . . . that he wished his bunch would not be
the first to join the union . those things, in proper settings, have been held to constitute
interference, but lets (sic) take the settings with which we have to deal here '
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their homes and elsewhere. He advised them against going to the meeting and
made derogatory remarks about the Union as well as about the general advis-
ability of joining unions. He also asked them not to attend the meeting. The
evidence is clear that between the time LaQuey first heard that morning of the
proposed meeting of the Union, he succeeded in talking to about 3 of the employees
to further his desire to defeat the employees' efforts at self-organization. That
his contacts with them had the desired effect is evident from the fact that of the
12 or 13 pipe-line employees only Chaney and Alexander went to the meeting.
The evidence also shows that LaQuey kept the meeting under surveillance, and
when it concluded he met and talked with the Union's president and secretary,
outside of the meeting place.
Foreman Smith was determined to follow up on LaQuey's discussions with
the employees. He therefore talked with three employees on or about February
2 or 3, and referred to the Union as a "Ku Klux Klan," told them that a union
would do them no good, referred to the Union as an "organization of some kind
that is trying to mess you boys up," and insisted "that the company had run
its business all of the time by itself, and didn't need any outsider to help it run"
respondent's business.
In the evening of February 10, LaQuey learned that the Union was again
holding a meeting. He thereupon went to the homes of employees to ascertain
if they had gone to the meeting. The next day Chaney was consigned to work
solely in the field, and the day following, February 12, was laid off On February
13, Smith discharged. Chaney with the remark that his work was "dissatisfactory."
As found above, prior to February, 1943, the respondent regarded Chaney as
an unusually satisfactory employee. Smith had said of him that he was a "better
prospect for advancement and capable of assuming more responsibility," and that
he was an "A-1 hand . . . the kind of a man the company needs." As was fur-
ther found above, the various reasons given by the respondent to justify Chaney's
discharge were not satisfactorily established. At least one of the alleged reasons
given for his discharge, was discovered some time after Chaney had been dis-
charged. Finally in deciding to discharge Chaney the respondent's foreman took
into consideration that Chaney's leadership in the concerted action for compen-
sation for the employees' time in transit on the job, was a breach of its contrary
"policy."
Following Chaney's discharge, the Union complained about it to the respond-
ent's officials. As investigation was ordered and from the employees' written
statements thus obtained, the respondent's vice president concluded that their
freedom of concerted action guaranteed by the Act, had been interfered with.
He then ordered Smith and LaQuey to obtain statements in the form of ques-
tionnaires. As found above, LaQuey and Smith told the employees the matter
which was to be detailed therein, and physically prepared these questionnaires
for the employees.
Upon the evidence, and in all of-the circumstances of this case, the under-
signed is convinced and finds that by discharging employee Chaney the respond-
ent discriminated in regard to his hire and tenure of employment thereby dis-
couraging membership in the Union, and by the statements and activities of
Foreman Smith and Assistant Foreman LaQuey, the respondent has interfered
with, restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act28
28 The record shows that the Producing Company, the respondent's affiliate, has a
collective agreement with the Union. The respondent apparently maintains that this
indicates that it is not biased against 'the Union. Such contention is not persuasive
because: ( 1) Insofar as the instant respondent is concerned, the existence of a collective
LONE STAR GAS COMPANY
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
1075
The undersigned finds that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respondent 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.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor practices,
the undersigned recommends that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
The undersigned has found that the respondent discriminated in regard to the
hire and tenure of employment of Charles B. Chaney, thereby discouraging mem-
bership in the Union. In order to effectuate the policies of the Act, it is recom-
mended below that the respondent offer to Charles B. Chaney immediate and full
reinstatement to his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges ; and that it makes him whole for
any loss of pay he may have suffered by reason of the discrimination practiced
against him, by payment to him of a sum of money equivalent to that which he
normally would have earned as wages or salary from February 16, 1943, the date
to which he was paid following his discriminatory discharge on February 13,
1943, to the date of offer of reinstatement less his net earnings ' during said
period.
agreement with the Producing Company neither proves nor disproves respondent 's anti-
union bias, and ( 2) the contract was not executed until March 12, 1943, about 1 month after
the discharge of employee Chaney and after the commission of the unfair labor practices
above set forth. The respondent also presented some testimony to the effect that some
of the employees were not coerced by the respondent 's acts and statements . Even if,
arguendo , such evidence were true it would not excuse the respondent 's commission of the
unfair labor practices as found above . In N. L. R B. v. John Engelhorn and Sons, 134
F. (2d) 553 (C. C. A. 3) the court said:
It is further argued that no causal connection was shown between the unfair labor
practices and their effect upon the employees . . . True, the employer's unfair labor
practices may not have affected all or even a ' majority of the employees .
Moreover , under the Act that is of no consequence . All that need be established
to show a violation of Section 8 is conduct by an employer which is defined therein as
an unfair labor practice . That section does not require proof that the proscribed
conduct had its desired effect.
In Rapid Roller Co v. N. L. R. B., 126 F. (2d) 452 (C. C. A. 7), cert. den 317 U. S. 650,
the court stated : I
It is argued by the company that because the employees joined the union almost
one hundred percent, therefore the evidence of duress and the effectiveness of the
duress had not been shown . In the first place , it is not necessary to show duress
but only interference, and it is not , necessary that the interference shall be successful
in preventing organization . It is only necessary to show that the employer interfered,
intimidated or coerced . It is the purpose of the statute to see that the employer
does not interfere or intrude into the affairs of the employees.
20 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work elsewhere than for
the respondent , which would not have been incurred but for his unlawful discharge and
the consequent necessity of his seeking employment elsewhere. See Matter of Crossett
Lumber Company and United Brotherhood of Carpenters and Joiners of America , Lumber
and Sawmill Workers Union, Local 2590, 8 N . L R. B. 440 . Monies received for work
performed upon Federal, State , county, municipal , or other work-relief projects shall be
considered as earnings . See Republic Steel Corporation v. N. L. R. B. 311 U. S. 7.
649875-44-vol. 52-69
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and upon the entire record in the
case the undersigned makes the following:
CONCLUSIONS Or LAw
1. Oil Workers International Union, Local #478, affiliated with the Congress
of Industrial Organizations is a labor organization, within the meaning of Section
2 (5) of the Act.
2. The respondent by discriminating in regard to the hire and tenure of employ-
ment of Charles B. Chaney, thereby discouraging membership in a labor organiza-
tion, has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (3) of the Act.
3. The respondent by interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed them in Section 7 of the Act has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices, within' the
meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of facts and conclusions of law the under-
signed recommends that the respondent, Lone Star Gas Company, and its officers,
agents, successors , and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Oil Workers International Union, Local No.
478, affiliated with the Congress of Industrial Organizations, or any other labor
organization of its employees, by discharging or refusing to reinstate any of its
employees, or in any other manner discriminating in regard to their, hire and
tenure of employment, or any term or condition of their employment;
(b) In any other manner interfering'with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form, join, or assist labor
organizations , to bargain collectively through representatives of their own choos-
ing, or to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the Act._
2., Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Charles B. Chaney iuainediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority and other
rights and privileges ;
-(b) Make whole the said Charles B. Chaney for any loss of pay he may have
suffered by reason of the respondent's discrimination against him, by payment
to him of a sum of money in the manner set forth in the above section entitled
"Tlie remedy" ;
(c) Post immediately in conspicuous places in and about its Pueblo plant
located near Moran, Texas, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees stating:
(1) that the respondent will not engage in the conduct from which it is recom-
mended that it cease and desist in paragraphs 1 (a) and (b) of these recommenda-
tions; (2) that it will take the affirmative action set forth in paragraphs 2 (a)
(b) of these recommendations; and (3) that the respondent's employees are free
to become or remain members of Oil Workers International Union, Local No.
478, affiliated with the Congress of Industrial Organizations, and that the
respondent will not discriminate against any employee because of membership
in or activity on behalf of that or any other labor organization ;
}
I
LONE STAR GAS COMPANY 1077
(d) Notify the Regional Director for the Sixteenth Region in writing within
ten (10) days from the receipt of this Intermediate Report what steps the
respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
in writing that it has complied with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board-Series 2, as amended, effective October 28,
1942-any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to section 32 of Article II
of said Rules and Regulations, file with the Board, Rochambeau Building, Wash-
ington, D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies
upon, together with the original and four copies of a brief in support thereof.
As further provided in said Section 33, should any party desire permission to
argue orally before the Board, request therefor must be made in writing to the
Board within ten (10) days from the date of the order transferring the case
to the Board.
PErF.R F. WARD,
'Trial Examiner.
Dated July 3, 1943.