Petrolane Gas Service, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1962

138 N.L.R.B. 1004 (N.L.R.B. 1962)

1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
force or require the Signal Corps to -cease doing business with Bendix Radio
Division of The Bendix Corporation.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO,
Labor Organization.
Dated--- ---------------- By --------------------------------------------
(Representative ) ( Title)
LOCAL 639 , INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material
Employees may communicate directly with the Board 's Regional Office, 849 South
Broadway , Los Angeles , California , Telephone Number, Richmond 9-4711, Exten-
sion 1031 , if they have any question concerning this notice of compliance with its
provisions.
Petrolane Gas Service, Inc. and Teamsters , Chauffeurs, Ware-
housemen and Helpers , Local Union No. 524. Case No. 19-CA-
2358. September 26, 1962
DECISION AND ORDER
On May 8, 1962, Trial Examiner Howard Myers issued his Inter-
mediate 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
take certain affirmative action, as set forth in the attached Intermedi-
ate Report Thereafter , the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.'
The Charging Party filed a brief in support of the Intermediate
Report.
Pursuant to the provisions of Section 3 (b) of the Act , the Board
has delegated its powers in connection with this case to a three -member
panel [Members Rodgers, Fanning , and Brown].
The Board has reviewed 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 briefs , and the entire record
in the case , and hereby adopts the findings, conclusions , and recom-
mendations of the Trial Examiner as modified below.'
2 The Respondent filed with the Board a motion to reopen the record. This motion Is
denied as the issues raised therein are properly matters for the compliance stage of this
proceeding.
2 We agree with the Trial Examiner that, as of October 25, 1961, there was an appro-
priate two -man unit consisting of Heath and Hall. We further agree with the Trial
Examiner that Hall, but for his discriminatory discharge, would have been given work
138 NLRB No. 112.
PETROLANE GAS SERVICE, INC. 1005
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.'
as Huntley promised . We will therefore issue the usual bargaining order . As we have
found that there was an appropriate two-man unit at all times material herein, we do not
find it necessary to pass upon the Trial Examiner ' s disposition of the Respondent's con-
tention that it may not now be required to bargain for a one-man unit.
The General Counsel excepts to the Trial Examiner 's finding that the refusal to bargain
ran from November 9, 1961 , when the Respondent advised the Union that it would not
bargain, instead of the pleaded date of November 3, 1961 . We find merit in the General
Counsel's contention that conduct which is an independent unfair labor practice and
constitutes the evasion of bargaining establishes the refusal to bargain See The Hamilton
Plastic Molding Company, 135 NLRB 371 ; and Greystone Knitwear Corp. and Donwood,
Ltd., 136 NLRB 573 Accordingly, we find that the date of the refusal to bargain ran
from November 3, 1961
$In the notice attached to the Intermediate Report as the Appendix the last sentence
is amended to read : "This notice must remain posted for 60 consecutive days from the
date of posting . . ." instead of stating "60 days from the date hereof."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on December 27, 1961, by Teamsters, Chauffeurs, Ware-
housemen and Helpers, Local Union No. 524, herein called the Union, the General
Counsel of the National Labor Relations Board, herein respectively called the Gen-
eral Counsel' and the Board, through the Regional Director for the Nineteenth
Region (Seattle, Washington), issued a complaint, dated February 2, 1962, against
Petrolane Gas Service, Inc., herein called Respondent,2 alleging that Respondent
has engaged in and is engaging in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act,
as amended from time to time, 61 Stat. 136, herein called the Act.
Copies of the complaint and the charge, together with notice of hearing thereon,
were duly served upon Respondent, and copies of the complaint and notice of hear-
ing were duly served upon the Union.
Specifically, the complaint alleged that Respondent: (1) since November 3, 1961,
has failed and refused to bargain collectively with the Union although since October
25, 1961, the Union had been the selected and designated collective-bargaining
representative of Respondent's employees in a certain appropriate unit; (2) on or
about November 3 or 4, 1961, by certain stated acts and conduct of its district
manager, Daniel Laurence Huntley, interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act; and
(3) terminated the employment of Harry Heath and Walter Hall (a) because of
their membership and activities in behalf of the Union, (b) to avoid bargaining
with the Union as their representative, and (c) to discourage membership in the
Union.
On February 12, 1962, Respondent duly filed an answer denying the commission
of the unfair labor practices alleged.
Pursuant to due notice, a hearing was held on March 13 and 14, 1962, at Seattle,
Washington, before Trial Examiner Howard Myers. Each party was represented
by counsel and was given full and complete opportunity to be heard, to examine
and cross-examine witnesses, to introduce relevant evidence, to argue orally on
the record at the conclusion of the taking of the evidence, and to file briefs on or
before April 10, 1962. A brief has been received from each party and they have
been carefully considered.
Upon the basis of the entire record in the case and from his observation of the
witnesses, the Trial Examiner makes the following:
1 This term specifically includes counsel for the General Counsel appealing at the
hearing.
2 Also referred to in the record as Petrolane-Washington.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS OPERATIONS
Respondent, a Washington corporation, is a wholly owned subsidiary of Petrolane
Gas Service, Inc., a California corporation, which is referred to herein,as Petrolane-
California.
Petrolane-California, directly and/or through wholly owned subsidiary corpora-
tions and other corporations controlled by it, is engaged in the marketing and dis-
tribution of liquefied petroleum gas (commonly called propane gas) in various
States of Western United States, nand derives anannual revenue in excess of $17 mil-
lion, largely from the sale of said fuel.
The operations in the State of Washington of Petrolane-California are conducted
principally through Petrolane Northwest Supply Co., Inc. (,a wholly owned sub-
sidiary of Petrolane-California,and herein referred to as Petrolane-Northwest), Calor
Gas Service of the Northwest, Inc. (a Nevada corporation which is controlled and
principally owned by Petrolane-California), herein referred .to as Petrolane-Calor,
and through Respondent.
Petrolane-Calor serves customers located principally in the western portion of
the State of Washington, whereas Respondent serves customers located principally
in the eastern portion of said State.
Petrolane-Northwest purchases, transports, and sells propane gas to Petrolane-
Calor, Respondent, and to others.
In the State of Washington, the principal sources of supply of propane gas are
petroleum refineries of nonresident corporations. These refineries import crude
petroleum into the State of Washington, where it is refined into petroleum products
(including propane gas); each such refinery annually converts in excess of $1 million
worth of the imported crude petroleum.
Petrolane-Northwest purchases its supply of propane gas directly from said re-
fineries located in the State of Washington at an annual cost in excess of $100,000
and sells a portion thereof to Respondent.
Respondent 's annual sales of said gas to its retail , commercial , and industrial
consumers exceed $100,000. The total gross proceeds of Respondent from sales
and services of all types during its fiscal year ending September 30, 1961, were
approximately $340,000. The combined gross proceeds of Respondent, Petrolane-
Calor, and Petrolane-Northwest from sales of propane gas to retail, commercial, and
industrial consumers annually exceed $500,000.
Upon the basis of the foregoing facts, the Trial Examiner finds, in line with
established Board authority , that Respondent is engaged in, and during all times
material was engaged in, business affecting commerce within the meaning of Section
2(6) and (7) of the Act and that its operations meet the standards fixed by the Board
for the assertion of jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory statement
Respondent 's Ellensburg, Washington , district facility , the employees of which are
the only ones involved in the instant proceeding , is, and during all times material
was, under the direct supervision of District Manager Huntley.
Huntley's immediate supervisor is, and during all times material was, Regional
Manager Eugene Adkins, whose offices are located in Yakima, Washington, a city
about 36 miles from Ellensburg.
Adkins' immediate supervisor is, and during all times material was , John C.
Wallace, a vice president of Petrolane-California, whose offices are located in Billings,
Montana. Wallace supervises the marketing of the products of Petrolane-California
in the States of Washington, Oregon, Idaho, Montana, Wyoming, North Dakota,
Alaska, and the northern portion of the State of Utah.
In June 1959 , Huntley came to the Ellensburg facility as a driver-salesman. In
October of that year, he was made manager of the Ellensburg district.
Within a short time after arriving in Ellensburg , Huntley and Walter R. Hall,
whose discharge is discussed in detail below, became close , personal friends. In
fact , Hall and Huntley on many occasions went fishing and hunting together; their
respective families visited at each other's homes, and Huntley's children played with
Hall's children.
PETROLANE GAS SERVICE, INC. 1007
B. Interference, restraint, and coercion; the discriminatory discharges of Harry Heath
and Walter Hall
1. The pertinent facts 3
Over the period of about 3 years of their acquaintance with each other, Hall had,
on about a half a dozen occasions, asked Huntley if he could get a job with the
Respondent at its Ellensburg facility. Each time Huntley informed Hall that he had
no opening.
On the evening of September 12, 1961,4 Huntley, his wife, and their four children
paid a social visit upon the Halls. During the course of the conversation which
ensued between the Halls and the Huntleys,5 Hall's then job of operating a bulldozer
at Ralph Nowell's logging operations, at nearby Leavenworth, Washington, was
discussed between Hall and Huntley.6 At the conclusion of Hall's remarks about
his job with Nowell, he asked Huntley if he had an opening for a "good man."
Huntley was "in is bind" because the man who had been installing the furnace units
Respondent had sold had just quit and he needed someone right away. In fact,
Huntley asked Hall whether he could report for work the following day. After Hall
had stated he would accept the job and remarking that he would inform Nowell
that he "wouldn't be there tomorrow," the following took place, according to Hall's
credible testimony: 7
I asked him (Huntley) what the pay was. He said $1.75 an hour. I
said, "Jesus, Dan, that ain't very much money."
He said that's all he could afford to pay. He had paid the fellow before me
$1.50. He figured that he could pay me $1.75 because I was a little more
experienced, and I said I couldn't afford to quit a job paying $3.25 an hour for
one paying $1.75; and I said, "How long is this job going to last?" He said,
"Well, right at the present, I have got work lined up enough to keep you busy
through November." He said, "After that time, there will be two or three days
a week, just enough to beat your rocking chair,8 probably until spring, March or
April." He said, "Then this will be a three-man operation, a three-man plant.
3In the light of the Trial Examiner's observation of the conduct and deportment at
the hearing of all the persons who testified herein, and after a very careful scrutiny of
the entire record, all of which has been carefully read and parts thereof reread and re-
checked several times, and being mindful of the contentions of the parties with respect to
the credibility problems here involved, of the fact that in many instances testimony was
given regarding events which took place many months prior to the opening of the hear-
ing, and of the fact that very strong feelings have been generated by the circumstances
of this case, coupled with the fact that it would unnecessarily protract this report to
summarize all the testimony or to spell out fully the confusion and inconsistencies therein,
the following is a composite picture of all the factual issues involved and the conclusions
based thereon. The parties may be assured that in reaching all resolutions, findings, and
conclusions herein by the Trial Examiner, the record as a whole has been carefully re-
viewed ; relevant cases have been studied ; and each contention advanced has been
weighed, even though not specifically discussed.
Unless otherwise noted, all dates hereinafter mentioned refer to 1961.
While this Hall-Huntley conversation was taking place in the kitchen, Huntley's three
sons (ages 12, 10, and 8 were playing with Hall's two sons (ages 14 and 12) in the
living room Hall's infant daughter remained with her mother.
6 Hall and Huntley previously had discussed the former's work in the woods.
7 Huntley's version of what was said at the time of hiring Hall varies from Hall's.
Since Hall particularly impressed the Trial Examiner as being one who is careful with
the truth and meticulous in not enlarging his testimony beyond his memory of what
occurred and what was said, and whereas Huntley gave the Trial Examiner the im-
pression that he was studiously attempting to conform his testimony to what he con-
sidered to be to the best interest of Respondent, the Trial Examiner finds Hall's version
of what transpired at his home on the evening of September 12 to be substantially in
accord with the facts. The Trial Examiner is not unmindful of the fact that the testi-
mony of Mary Huntley, Huntley's wife, which to some degree tends to corroborate
Huntley's testimony regarding the aforementioned September 12 visit to Hall's home, has
been given very careful consideration by the Trial Examiner. Since admittedly Mrs. Hall
did ont hear the entire Hall-Huntley conversation, coupled with the fact that her testi-
mony is extremely "sketchy," the Trial Examiner still accepts Hall's version of the afore-
mentioned September 12 incident to be substantially in accord with the facts.
8 Meaning unemployment compensation.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Then we can put you on steady"; and I said, "Dan, that's the only way I would
take this job is to have it work into something steady because I couldn't afford to
quit a $3.25 an hour job to come down and take $1.75 an hour job just for a
few months or a month or two"; and he said, "That's the way we got it set up
now"; and I said, "That's the only way I'll take it, if it will work into something
steady."
He said, "We're a man short. We're behind on the installation of furnaces,
and that's something we've got to get at right away because winter is coming up."
He said, "That is a must. There are lots of other things to be done too." I
said, "How about union" Do you have to belong to the union?" and he said,
"No." I said, "Is there a certain uniform or certain dress we have to wear?"
He said, "Yes, we are required to wear a uniform, a special uniform, which
can be purchased through the company at a considerable saving to the employee,
but," he said, "you won't need to worry about that until spring, being on a
temporary basis."
Hall reported for work for Respondent on September 13, and for the first 2 or 3
days he helped Huntley with service calls, made a few deliveries of propane gas
with the bulk truck, helped Grant Kunert ° on the Cle Elum furnace installation job.
The following week, Hall and Huntley installed furnace units in a private residence.
Shortley after Hall started to work for Respondent, Huntley gave Hall his personal
copy of Respondent's service manual at which time Huntley advised Hall that since
he would be going out on service calls "from time to time as you work with this
company. You [will have to] refer to this [service manual]. . . . You will need
it in making the service calls." On another occasion, Huntley said to Hall, "You
can help in the office today doing paper work, rearranging the files," adding "These
are some of the phases of the operation that you will have to learn. The sooner
you learn all the phases of this operation, the better you will get along."
Hall further credibly testified as follows:
Q. Did he supply you with anything other than this service manual?
A. Yes, about the middle of October he gave me two text books.
Q. What explanation did he give for the textbooks?
A. He said, "these .two books I would like to have you take home and study.
This first one," he said, "I would like to have you read it through." It was a
book describing propane and butane gases from the beginning to the supply
to the customer, the uses, the storage, the transportation; and the other book
was chapter by chapter description of various phases of this first book with a
question and answer page in the back.
Q. At the back of each chapter?
A. Yes, at the back of each chapter, and he said, "You study this, and
when you get on this other book, take it chapter by chapter," and he says, "I
want you to be faithful with yourself and with me. When you finish a chapter,
complete those questions and bring it to me."
On September 20, 1961, Heath was hired by Huntley at a monthly salary of $350.
Heath's "main duty" was that of a driver-salesman. However, on occasion, he
and Hall installed furnace units.
The record establishes, and the Trial Examiner finds, that, as Huntley testified,
"Hall was by far" a "superior employee" to Heath; that on three or four occasions,
Huntley told Hall that Heath, to quote from Hall's credible testimony, "wasn't
proving out, that he was going to have to let him (Heath) go if he didn't straighten
out"; that on at least one occasion, Huntley asked Hall, again to quote from Hall's
credible testimony, "if I would take over his (Heath's) position if he had to let him
go; and I said yes."
The record further establishes, and the Trial Examiner finds, that Heath was
quite 'an incompetent employee; that almost from the beginning of his employment
with Respondent, he made errors in his daily reports; in fact Huntley testified, and
the Trial Examiner finds, that "with a few exceptions," Heath's daily reports "had
errors in them, whether it be gallons delivered, or invoices numbered wrong, names
wrong"; that despite the fact that on many occasions Huntley called Heath's atten-
tion to the mistakes appearing on his reports, Heath continued to hand in reports
containing errors; and that several times Huntley had to admonish Heath "for
speeding with the company equipment" because Heath drove the tank truck at a
speed in excess of 50 miles an hour.
9 Kunert worked as a driver-salesman from August 1960 until about September 20,
1961, at which time he was replaced by Heath.
PETROLANE GAS SERVICE, INC. 1009
On October 25, Heath and Hall each signed a union membership application card.
On the same day, October 25, that Hall and Heath signed union cards, Huntley
told Hall that as soon as the Earl Cox job, upon which Huntley and Hall were
then working, had been completed, Hall was to replace an oil-fired furnace with a
gas-fired furnace in a private residence located outside of Cle Elum.
The Cox job was finished on November 2.
Regarding certain events which took place on Friday, November 3, Hall credibly
testified as follows:
We had an order for a small space unit to be put into a man's work shop
in his garage. That Friday morning I loaded all the space heater and the flue
work and the tank and delivered it to this job location, this man' s place. I
also stopped in at the Earl Cox residence to see how the furnace was operating.
There had been a little trouble with the fan and the motor, and I had that
working good; and it was still working good and they were satisfied. I also
stopped that day at the bus depot in Cle Elum to see how their furnace was
operating and they wanted a new duct run from the furnace to the front window
of their bus depot. They weren't getting enough heat up there, and 'I made a
note of that. Then I returned to the office in Ellensburg.
Q. Now, with respect to either this floor furnace job or the space heater job,
was this anything that was specifically scheduled other than in the verbal com-
ment that had been made to you?
A. It was on .the slip of paper that Dan had written down.
On the afternoon of November 3, the Union sent Respondent a telegram reading
as follows:
We are advising you that we represent your employees for the purpose of
collective bargaining and request a meeting with you to discuss a labor agree-
ment covering said employees.
That same afternoon someone from the telegraph company read the telegram over
the telephone to Huntley and about shortly before 5 p.m., Huntley picked up a copy
thereof at the telegraph company's office.
Upon receipt of the telegram referred to immediately above, Huntley telephoned
Adkins' Yakima offices, but was unable to contact Adkins.
About 5 p.m. the same day, November 3, the following took place between him
and Huntley, according to Heath's credible testimony:
I was filling the truck prior so it would be ready to go the next time I had
to take it out, and he drove in with his family and walked up to the truck and
said, "I just got a call or I just had a telephone call that said that you had
signed a card to join the union," and he said, "What's the matter, aren't you
satisfied with your job and the way things are going and the money you're
getting?' ; and I said, "Not necessarily."; and he said "Well, by God, if this
place goes union, there's going to be quite a few changes made and you guys
are going to lose some privileges."; and I said, "Such as?"; and he said, "Well,
I can't talk to you any more now"; and he left and there was never any more
said about it.
On November 4, Hall and his two sons and Huntley and one of his sons went elk
hunting. The five of them hunted all day and just before leaving for home, Hall
told the friends with whom they had been hunting that day, "we would [be] back
bright and early the next morning," and Huntley remarked to the aforesaid friends,
"they had better be out of the sack [when he arrived the next day] or he would
jerk them out."
Just prior to 7 p.m. on November 4, Huntley telephoned Adkins and informed
him of the Union's telegram of the previous day. When Huntley was asked by
the General Counsel what instructions Adkins had given him with respect to the
matter, he testified as follows:
He told me I was to do nothing about it at the present time. He would have
to discuss this with his superior officers and with his superior above him, and
I was to take no action at this particular time as to Mr. Heath or Mr. Hall,
that he would contact me the next day and let me know what I should do. He
also asked me if Mr. Hall's work was finished, which I informed him it was,
that he had worked on his last furnace; and he said he would get back to me
the next day.
Shortly after completing his telephonic conversation with Adkins, Huntley tele-
phoned Hall. Regarding this phone call, Hall credibly testified as follows:
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dan said , "Walt, you pulled a dirty trick on me"; and I said, "how's
that, Dan?" He said, "You joined the union"; and I said, "Now, that's a hell
of a note, that I would join a union ." He said, "After all these years that you
have been friends with me, you joined the union. That's against company
policy"; and I said, "Dan, company policy is something you never explained
to me, not one word"; ,and he said, "It's a dirty trick." He said, "You put me
in an awful position." I said, "Dan, the only one that I put in a position is
myself. This shouldn't disturb you one way or the other. In fact, it is none
of your business if I decided to join the union." I told him that I had been a
union man for approximately twenty-five years, and I believe in the unions if
they were run correctly; and he said, "Well, you certainly put me in a position."
He said, "I can't go hunting with you tomorrow. I had a call from Yakima,
and we have a meeting in Yakima tomorrow." He said, "I can't go hunting,
and I will talk to you tomorrow. I am all broken up and I can't say any
more ...
Q. In the course of the conversation, did he make any reference at all to
the fact that you had put in the last furnace?
A. None whatsoever.
Q. Was there any talk in the course of that conversation about the volume
of your work or how long your job was going to last?
A. No.
Q. Did he call you the next day?
A. No, he did not.
On Sunday evening, November 5, Adkins telephoned from Yakima to Wallace
who was then in Billings, and advised the latter of the Union's November 3 telegram
and of the fact that Hall and Heath had each signed union cards. Adkins then
stated that he had decided to "lay them off and terminate Hall," to which decision
Wallace apparently agreed.
Regarding what took place on Monday, November 6, with respect to him and
Huntley, Heath credibly testified as follows:
. Dan said, "Harry, when Walt (Hall) comes in, I want you to go down
and get the truck because I talked to Gene Adkins yesterday and I am going
to have to let Walt go," he said, "There's not enough work to keep three of us
busy and I am going to have to let Walt go and you and I are going to have
to do more of the service work than we have been doing"; and as soon as
Walt came in from picking up the mail, which he usually did, I left. When
I came back with the truck, why, Walt was gone; and Dan said that he had let
Walt go, that he had gone home; so then, 'I went down about my duties deliv-
ering gas . When I came in in the afternoon, Dan said, "Harry, I want you
to bring in your reports and your books and stuff, I am going to have to let
you go too. You're just too hard on the equipment, you have made quite a
few mistakes in your book work; and we don't feel that you are going to work
out for the company." He said, "We had a big repair bill on the truck." At
that time, I said I couldn't see as where that repair bill that they had on the
truck was my fault, and I helped him take the truck Walt had been using out
to Dan's place. Then I took my truck to the bulk plant and parked it. Then
Dan took me home.
Hall credibly testified that when he reported for work on November 6, the follow-
ing transpired:
I got the mail and walked in the office, and Harry (Heath) and Dan
(Huntley) were there; and I said, "Good morning boys." I tossed the mail
on the desk. Dan told Harry to go down and fill his truck. Harry left. Dan
said, "Sit down, Walt. I've got something to tell you." I remained standing,
and he said, "As you know, when you hired out, this was a temporary job "
He said, "We have the furnaces installed." He said, "I've got to let you go."
I said, "How about the floor furnace and the space heater?" and he said, "I will
handle that." He says, "Now, you know when you were hired this was a
temporary job"; and I said, "Yes, but how about those two or three days a
week you promised me?" and he said there wouldn't be any of that. I said,
"How about work in the future?" and he said, "It depends on the sales." He
asked me to turn in my keys, catalogue. sales books and tools, turn them in;
and he asked me to catch up on my bill. I owed them $38 00, which I did
within the ,months. He said, "Turn in those things, and I'll drive you home."
I[f] said, "If that's it, that's it. I'll go get my rifle and go hunting." and I did.
Hall was discharged as of 5 p.m. Friday, November 3.
PETROLANE GAS SERVICE, INC. 1011
Heath was discharged as of the end of his workday of November 6, but was paid
for the balance of that week. He was reinstated with full backpay on November 22.
On or about November 8, a new driver-salesman was hired. This new employee's
employment was terminated when Heath was rehired.
Under date of November 9, Wallace sent the Union a telegram reading as follows:
THE TWO INDIVIDUALS WHICH ARE THE SUBJECT OF YOUR RE-
CENT TELEGRAM DIRECTED TO MR. DAN HUNTLEY AT ELLENS-
BURG WASH WERE NEW EMPLOYEES OF PETROLANE WHO WERE
STILL IN THEIR PROBATIONARY PERIOD OF EMPLOYMENT AND
WHO DID NOT BECOME PERMANENT EMPLOYEES BECAUSE OF
FAILURE TO MEET MINIMUM STANDARDS OF PERFORMANCE OF
THIS COMPANY. NEITHER IS PRESENTLY AN EMPLOYEE OF PET-
ROLANE SO WE SEE NO BASIS FOR YOUR REPRESENTATION OF
ANY OF OUR EMPLOYEES AND THEREFORE NO BASIS FOR NEGO-
TIATING REGARDING WORKING CONDITIONS.
2. Concluding findings
This case presents the comparatively rare situation where the recitation of the facts
leading up to the discharge vividly reveals their discriminatory character . 1° Almost
immediately after being advised that the Union represented its Ellensburg employees,
Respondent embarked upon a campaign to thwart its employees ' union activities.
Thus, within a few hours after the receipt of the Union 's November 3 telegram,
Huntley, after ascertaining from Heath that Heath and Hall had signed union cards,
threatened Heath with reprisals, "If this place goes union .
Not content with threatening its employees with reprisals "If this places goes union,"
Respondent discharged its only nonsupervisory employees at its Ellensburg facility
in order ( 1) to justify its refusal to recognize or bargain with the Union , the duly
designated representative of those employees , and (2) to discourage membership
in the Union.
In support of its contention , expressed at the hearing and in its brief , that Hall's
and Heath 's union affiliations and activities played no part in its decision to discharge
Hall and Heath , Respondent advanced various and sundry reasons for the discharges.
Respondent first took the position that Hall was discharged because there was no
work for him.li It then took the position that it could not retain him and discharge
Heath , an incompetent employee, because the latter was a permanent employee,
whereas Hall was a temporary employee.12 It then maintained that on October 20,
Huntley was instructed by Adkins "to definitely terminate" Hall "at the end of
October." Apparently Respondent abandoned all of the above reasons for the
discharges , for on November 9, Wallace, in his telegram to the Union on that
day, stated that Hall and Heath were discharged because-
[They] were new employees of Petrolane who were still in their probationary
period of employment and who did not become permanent employees because
of failure to meet minimum standards of performance of this company.
In view of the inadequacy and inconsistencies of Respondent 's explanations for
the discharges of Hall and Heath , coupled with Respondent 's unconcealed union
It Compare the oft -quoted observation of Chief Judge Parker in Hartsell Mills Company
v. N.L.R B., 111 F. 2d 291 , 293 (C.A. 4), ". . . direct evidence of a purpose to violate
the statute is rarely obtainable." Accord: N.L.R.B. v. Bird Machine Company, 161 F. 2d
589, 592 (C.A. 1) ; N.L.R .B. v. Dan River Mills, Pneorporated, 274 F. 2d 381 (C.A. 5) ;
Northern Virginia Steel Corp . v. N.L.R .B., 300 F. 2d 168 (C.A. 4).
"The record discloses that, in fact, there was work for Hall. At least , there was
some work for him to perform during the week of November 6.
12 The words "permanent" and "temporary" as used by Respondent do not connote the
same meaning as usually or commonly implied to those words. The meaning of those
words as used by Respondent are explained by the following testimony of Huntley:
Q. Your company budgeting calls for classifying anyone that's on salary as perma-
nent employee, isn't that correct?
A. Correct.
t * i P
Q. The people who are hired on the hourly basis are classified as temporary em-
ployees on your budgeting program?
A. Yes, at Ellensburg , yes, sir.
662353-63-vol 138-65
101.̀2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hostility,13 a finding is clearly warranted that Hall and Heath were terminated
because of their union activities and sympathies and because they had engaged in
concerted protected activities.14 In N.L.R.B. v. May Department Stores Co., 154
F. 2d 533 (C.A. 8), the court said, at page 538, regarding a situation similar to the
one here presented, that there is a "broad scope of interference open . on
questions of motive and discrimination, where the evidence indicates a desire to
thwart or nullify unionization effort, either generally or to a particular employee-
organization." And where, as here, the employer has shown strong opposition to
its employees' unionization "a very convincing case of discharge for cause would have
to be made to make unreasonable a conclusion that [the] discharge was because of
union affiliations." 15 This burden Respondent has failed to establish.
Furthermore, the shifting and unsupported grounds assigned by Respondent for
terminating the employment of Hall and Heath are further persuasive indications
that antiunion reasons, rather than the reasons advanced by Respondent, accounted
for the action taken against them.16
Upon the entire record in the case, the Trial Examiner is convinced and finds, that
Hall and Heath were discharged on November 6, 1961, (1) because of their union
affiliations and activities, (2) to avoid bargaining with the Union, and (3) to dis-
courage membership in the Union, and not for the reasons asserted by Respondent.
The Trial Examiner further finds that by said discharges, Respondent interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
The Trial Examiner also finds Huntley's remarks to Heath about 5 p.m. on
November 3, wherein he threatened the employees with reprisals "If this place goes
union" to be violative of Section 8(a)( I) of the Act.
C. The refusal to bargain collectively with the Union
1. The appropriate unit
The complaint alleged that all Respondent's Ellenburg facility employees
exclusive of office clerical employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act. Respondent's answer denied said allegation.
At the hearing and in its brief, Respondent contended that the unit sought by the
Union was inappropriate and hence it was under no obligation to recognize or
bargain with the Union as the collective-bargaining representative of any of its em-
ployees. In support of its position, Respondent maintained that Hall should be
excluded from the unit sought because (1) to quote from Respondent's brief,
"the position occupied by Walter Hall was basically that of an appliance installer,
which occupational category is clearly unrelated functionally to that sought to be
represented by [the Union], namely, a unit of driver-salesmen," (2) Hall, "as dual
function employee, spent less than fifty percent of his time driving truck," and (3)
18 On November 4, Huntley Informed Hall that it was against "company policy" for its
employees to join a labor organization
"Of course, disbelief of the reasons advanced by Respondent does not in itself make
out a violation. Unquestionably the burden is on the General Counsel to establish dis-
criminatory motive, not on Respondent to disprove it. Miller Electric Manufacturing Co.,
Inc. v. N.L.R .B., 265 F. 2d 225 (C A. 7) ; N.L.R B. v. Rockwell Manufacturing Company,
271 F. 2d 109 (C.A. 3) ; N.L.R B. v. Minnotte Manufacturing Corp , 299 F. 2d 690
(C.A. 3). But here, the General Counsel has more than amply met that burden
16 Dannen Grain and Milling Company v . NL.R.B., 130 F. 2d 321, 328 (CA. 8)
ze The courts have frequently recognized that shifting explanations by an employer for
the discharge of an employee may warrant an inference that the true reason was the
employer's hostility to the union . See N L.R B. v. International Furniture Company,
199 F. 2d 648 (C.A. 5) ; N.L R.B. v. Crystal Spring Finishing Company, 116 F. 2d 669
(C.A. 1) ; N.L .R.B. v. Yale & Towne Manufacturing Company, 114 F 2d 376 (C.A. 2) ;
N.L.R.B. v. Condenser Corporation of America, 128 F. 2d 67 (C.A. 3) ; N L R B. v.
Eclipse Moulded Products Company, 126 F. 2d 576 (CA 7). And this is so even where
the employer had "plausible grounds" for the discharge. United Biscuit Company of
America v . N L.R.B , 128 F. 2d 771 (C.A. 7). See also NLRB. v. C. W. Radcliffe, et al ,
d/b/a Homedale Tractor & Equipment Company, 211 F. 2d 309 (C.A. 9), which holds
that the giving of implausible , inconsistent , or contrary explanations of a discharge may
be considered in determining the motive therefor ; it is, as here , a circumstance indicative
of antiunion motivation.
PETROLANE GAS SERVICE, INC. 1013
"the position [Hall] occupied was wholly temporary and had virtually expired at
the time he was terminated."
As to (1), the Union's telegram to Respondent requesting a meeting for the
purpose of negotiating a contract states that it represented "your employees," not,
as Respondent now claims, solely Respondent "driver-salesmen." Under the circum-
stances, the Trial Examiner finds no merit to this contention.
As to (2), the record establishes, and the Trial Examiner finds, that on occasion
Heath helped Hall install furnace units and on occasion Hall drove the tank truck
and made deliveries of propane gas. The Trial Examiner finds, upon the foregoing
facts and upon the additional fact that the record discloses a "community of interest"
with respect to the various jobs performed at Ellensburg, that this contention is
without substance or merit.
As to (3), Hall's job was not "temporary" in the common or usual sense applied
to that term. The record discloses, and the Trial Examiner finds, that Respondent
designated, solely for budgetary purposes, its hourly paid employees as "temporary
employees." Moreover, when Hall was hired, Huntley stated that when the
furnace installation work ran out, Hall would be given employment at least 2 or 3
times a week until the spring of 1962, when he would again be employed 5 days
a week. Under the circumstances, the Trial Examiner finds that Hall was neither a
"temporary" nor a "casual" employee to warrant his exclusion from the unit.
Upon the entire record in the case, the Trial Examiner finds, contrary to Respond-
ent's contentions, that all persons employed at Respondent's Ellensburg, Washington,
facility, exclusive of office clerical employees, guards, and supervisors as defined in
the Act, constitute, and during all times constituted, a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act,
with respect to grievances, labor disputes, rates of pay, wages, hours of employment,
and other conditions of employment. The Trial Examiner further finds that said
unit insures to said employees the full benefit of the right to self-organization and
to collective bargaining, and otherwise effectuate the policies and purposes of the Act.
2. The Union's majority status in the appropriate unit
The Trial Examiner finds, commencing with October 25,17 the unit found appro-
priate consisted of Hall and Heath.
On behalf of the General Counsel there were offered and received in evidence
two cards, each being dated October 25, and respectively bearing the signatures
of Hall and Heath, expressly authorizing the Union to represent the signers thereof
for the purposes of collective bargaining. The genuineness of the signatures appear-
ing upon said cards was proven by the testimony of the signers thereof.
The Trial Examiner finds that on October 25, the two employees in the appro-
priate unit had selected and designated the Union as their collective-bargaining
representative. The Trial Examiner further finds that on October 25 the Union was,
and at all times thereafter has been, the duly selected and designated representative
of Respondent's Ellensburg facility employees in the unit heretofore found appro-
priate. Accordingly, by virtue of Section 9(a) of the Act, the Trial Examiner
finds that on October 25 the Union was, and all times since has been, the exclusive
representative of all the employees in said unit for the purposes of collective bargain-
ing with respect to grievances, labor disputes, rates of pay, wages, hours of employ-
ment, and other conditions of employment.
3. The refusal to bargain
As found above, one of the main reasons for discharging Hall and Heath on
November 6 was to avoid bargaining with the Union as their representative.
The Trial Examiner has carefully considered each and every contention of
Respondent, and the cases cited in support thereof, to the effect that it was under
no legal obligation to recognize or bargain with the Union as the representative of
Hall and Heath and, upon the record as a whole, finds them to be without merit.
There is absolutely no merit to Respondent's argument that by discharging Hall
and Heath on November 6, it had one nonsupervisory employee at Ellensburg
and hence the Union represented none of its employees, nor to its argument that at
all times since the employment, on or about November 8, of the new driver-salesman,
there existed no appropriate unit of employees at Ellensburg because of the em-
ployment of but one man thereat.
27 The date when Hall and Heath signed union membership application cards.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As found above, (1) the Union became the duly designated representative on
October 25 of the two men then employed at Ellensburg, (2) the Union notified
Respondent on November 3 that it represented Respondent's Ellensburg employees,
and (3) Respondent fired the said two employees on November 6. Respondent's
argument, therefore, that it may not be held to have violated Section 8(a)(5) of the
Act because shortly after receiving the Union's telegram of November 3, certain
events took place (first the elimination of its entire Ellensburg nonsupervisory
working staff and later, the creation of a one-man unit) is likewise without merit for
these events were brought about by Respondent for the purpose, among others, of
avoiding dealing with the Union. Merely to state the argument reveals its weakness,
for it would make a nullity of the processes of the Act if an employer could absolve
himself of responsibility for having refused to bargain merely by eliminating the
unit entirely or by reducing it to one employee through his own unlawful acts.
Respondent, according to the terms of the statute, was obligated to bargain with the
Union when it made its demand for such action.
Although Respondent's position is, in essence , that it may not now be required
to bargain with the Union because the unit has been reduced to one man, it is unable
to furnish any legal basis for its argument. For the fact is that there is no prohibi-
tion in the Act against the Board requiring an employer to bargain with a union
representing a unit of one employee. Furthermore, the cases cited by Respondent,
although they illustrate the Board's policy not to certify a one-man unit-rather than
the statutory requirement-are inapposite, for not one of them involves the decrease
in the size of the unit through the employer's unlawful acts.
Upon the record as a whole, the Trial Examiner finds that on November 9,18 and
at all times thereafter, Respondent, in violation of Section 8(a)(5) and (1) of the
Act, failed and refused to bargain collectively with the Union as the duly designated
representative of the employees in the unit herein found appropriate, thereby
interfering with, restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and such of them as have been found to constitute unfair labor practices,
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a)(1), (3), and (5) of the Act, it will be recommended that it cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent on November 9, 1961, and at all times thereafter,
has refused to bargain collectively with the Union as the representative of the
employees in an appropriate unit, the Trial Examiner will recommend that Respond-
ent, upon request, bargain collectively with the Union as the exclusive representative
of all employees in the unit heretofore found appropriate, and if an agreement is
reached, embody such understanding in a signed agreement.
Having found that Respondent has discriminated in regard to the hire and tenure
of employment and the terms and conditions of employment of Walter R. Hall and
Harry Heath, it is recommended that Respondent offer to Hall 19 immediate and full
reinstatement to his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges. It is also recommended that Respondent
make Hall whole for any loss of pay he may have suffered by reason of Respondent's
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
to the date of Respondent's offer of reinstatement, less his net earnings during that
period.
Loss of pay shall be computed and paid in accordance with the formula adopted
by the Board in F. W. Woolworth Company, 90 NLRB 289.
The date of Wallace's telegram to the Union.
v Heath was reinstated on November 23 with full backpay.
PETROLANE GAS SERVICE, INC. 10 1 5
The unfair labor practices found to have been engaged in by Respondent are
of such a character and scope that in order to insure the employees here involved
their full rights guaranteed by the Act it will be recommended that Respondent
cease and desist from in any manner interfering with , restraining , and coercing its
employees in their right to self-organization.
Upon the basis of the foregoing findings of fact and upon the entire record as
a whole, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Teamsters , Chauffeurs , Warehousemen and Helpers , Local Union No. 524, is
a labor organization within the meaning of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of Section 2(2) of the Act.
3. Respondent now is engaged in, and during all times material was engaged in,
commerce within the meaning of Section 2(6) and (7) of the Act.
4. By discriminating in regard to the hire and tenure of employment and the
terms and conditions of employment of Walter R. Hall and Harry Heath, thereby
discouraging membership in the Union , Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(3) of the Act .
5. All Respondent's Ellensburg, Washington, facility employees, excluding office
clerical employees, guards, and supervisors as defined by the Act, constitute, and
during all times material herein constituted, a unit for the purposes of collective
collective bargaining within the meaning of Section 9(a) of the Act.
6. Since October 25, 1961, the Union has been the exclusive representative of
all the employees in the above-described appropriate unit for the purposes of
collective bargaining within the meaning of Section 8(a) of the Act.
7. By failing and refusing on November 9, 1961, and at all times thereafter, to
bargain with the Union as the exclusive representative of all the employees in the
appropriate unit, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
8. By threatening its employees with reprisals if the Union successfully organized
the Ellensburg facility, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law , and upon
the entire record in the case , it is recommended that Respondent, Petrolane Gas
Service, Inc., Ellensburg , Washington , its officers , agents , successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as the exclusive representa-
tive of the employees in the above-described appropriate unit.
(b) Discouraging membership in the Union by discharging or refusing to rein-
state any of its employees or by discriminating in any manner in regard to their
hire or tenure of employment or any term or condition of their employment.
(c) Threatening its employees with reprisals if the Union successfully organized
Respondent 's Ellensburg, Washington, facility and from engaging in any activity
constituting interference , restraint , or coercion in violation of Section 8(a) (1) of
the Act.
(d) In any manner interfering with, restraining , or coercing its employees in the
exercise of the right to self-organization , to form , join, or assist the Union or any
other labor organization of its employees, to bargain collectively through representa-
tives of their own choosing , and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, and to refrain from any
such activities, except to the extent that such right maybe -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.
2. Take the following appropriate action which is necessary to effectuate the
policies of the Act:
(a) Upon request , bargain collectively with the Union as the exclusive repre-
sentative of all the employees in the appropriate unit, and embody any understand-
ing reached in a signed agreement.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Offer to Walter R. Hall immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority or other rights
and privileges and make him whole for any loss of pay he may have suffered by
reason of Respondent's discrimination against him in the manner and to the extent
set forth in the section of this Intermediate Report entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary and useful to
determine the amount of backpay due and his right of reinstatement under the
terms recommended herein.
(d) Post at its facility in Ellensburg, Washington, copies of the notice attached
hereto marked "Appendix." 20 Copies of such notice, to be furnished by the Re-
gional Director for the Nineteenth Region (Seattle, Washington), shall, after having
been duly signed by Respondent's authorized representative, be posted by Respond-
end immediately upon receipt thereof and maintained by it for at least 60 consecu-
tive days thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Nineteenth Region, in writing, within 20
days from the date of the service of this Intermediate Report and Recommended
Order, what steps Respondent has taken to comply herewith.21
2° In the event that these recommendations be adopted by the Board , the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" 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 "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order " shall be substituted for the words
"Pursuant to a Decision and Order."
21 in the event that these recommendations 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 the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations 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 in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor organ-
izations, to join or assist Teamsters, Chauffeurs, Warehousemen and Helpers,
Local Union No. 524, or any other labor organization of our employees, 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 or to refrain from any and all of such activities 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 National Labor Relations Act.
WE WILL NOT threaten our employees with reprisals if the above-named Union,
or any other labor organization, successfully organizes our Ellensburg, Wash-
ington , employees.
WE WILL offer to Walter R. Hall immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any seniority
or other rights and privileges previously enjoyed, and make him whole for any
loss of pay suffered as a result of our discrimination against him
WE WILL bargain collectively, upon request, with Teamsters, Chauffeurs,
Warehousemen and Helpers, Local Union No. 524, as the exclusive bargaining
representative of all the employees in the bargaining unit described herein and
if an understanding is reached, embody such understanding in a signed agree-
ment. The bargaining unit is:
All our Ellensburg, Washington, employees, exclusive of office clerical em-
ployees, guards, and supervisors as defined in the Act.
All our employees are free to become or remain members of the above-named
Union or any other labor organization except to the extent that this right may be
affected by an agreement in conformity with Section 8(a)(3) of the amended Act.
WILDER FINISHING CO., DIVISION OF JERVIS CORP. 1017
We will not discriminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of membership in or activity
on behalf of any such labor organization.
PETROLANE GAS SERVICE, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
NoTE -We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act after discharge from the
Armed Forces.
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 327 Logan
Building, 500 Union Street , Seattle, Washington , Telephone Number, Mutual 2-3300,
Extension 553, if they have any question concerning this notice or compliance with
its provisions.
Wilder Finishing Co., Division of Jervis Corporation and Inter-
national Union , United Automobile , Aircraft and Agricultural
Implement Workers of America (UAW), AFL-CIO. Case No.
7-CA-3445. September 26, 1962
DECISION AND ORDER
On June 12, 1962, Trial Examiner W. Gerard Ryan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Intermediate Report. There-
after, counsel for the General Counsel filed exceptions to the Inter-
mediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error has been committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and finds merit in
the exceptions as set forth below. Accordingly, the Board adopts
the findings and conclusions of the Trial Examiner only to the extent
that they are consistent with the decision herein.
1. The Trial Examiner found that Respondent was not responsible
for certain statements made by Chief Inspector Hall, on the ground
that Hall was not a supervisor. We do not agree. Hall testified
generally that he had no authority to hire, to discharge, to affect
otherwise the status of employees, or to direct them in a responsible
manner. Nevertheless, the record shows that Foreman Flinthof on
hiring employee Brimmer told Brimmer that Hall was his supervisor
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Members Leedom, Fanning,
and Brown].
138 NLRB No. 113.