Rio Grande Valley Gas Co.

National Labor Relations Board - Board Decisions

Mar 9, 1965

151 N.L.R.B. 489 (N.L.R.B. 1965)

RIO GRANDE VALLEY GAS COMPANY 489
Union , AFL-CIO, or in any other organization , by discharging , laying off, or in
any other manner discriminating against any employees in regard to their hire
or tenure of employment , or any other term or condition of employment.
WE WILL NOT refuse to bargain collectively with United Store Employees
Union , Local # 347, Retail , Wholesale and Department Store Union , AFL-CIO,
as the exclusive bargaining representative of all employees in the appropriate
bargaining unit described below.
WE WILL offer Stephen Stogden immediate and full reinstatement to his former
or substantially equivalent position , without prejudice to his seniority or other
rights and privileges , and WE WILL make him whole for any loss of pay he may
have suffered as a result of the discrimination against him.
WE WILL, upon proper request , bargain collectively with United Store Employ-
ees Union , Local # 347, Retail, Wholesale and Department Store Union, AFL-
CIO, as the exclusive representative of all employees in the bargaining unit
described below, and if an agreement is reached , sign such an agreement. The
bargaining unit is:
All employees involved at our St . Albans, West Virginia , restaurant,
excluding all supervisors as defined in the Act.
WE WILL NOT threaten our employees with discharge for joining the Union,
or threaten to close the plant in retaliation for union activity , or in any other
manner interfere with, restrain , or coerce our employees in the exercise of their
right to self-organization , to form, join, or assist any labor organization , to bar-
gain collectively through representatives of their own choosing , to engage in
concerted activities for the purpose of collective bargaining , or other mutual aid
or protection , or to refrain from any or all such activities.
All our employees are free to become , or remain , or to refrain from becoming or
remaining , members of any labor organization.
B.B.S.A ., INC., d/b/a BURGER Boy FOOD -O-RAMA,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above -named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Room
2023, Federal Office Building, 550 Main Street , Cincinnati , Ohio, Telephone No.
381-2200 , if they have any question concerning this notice or compliance with its
provisions.
Rio Grande Valley Gas Company and Oil , Chemical and Atomic
Workers International Union , AFL-CIO. Case No. 23-CA-
1765. March 9, 1965
DECISION AND ORDER
On December 22, 1964, Trial Examiner George A. Downing issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint, and recommended that these
151 NLRB No. 59.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allegations be dismissed. Thereafter, the General Counsel filed a
statement of exceptions' to the Trial Examiner's Decision, and
brief in support thereof. The Respondent filed an answering
brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and briefs, and the entire
record in this proceeding, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order the Order
recommended by the Trial Examiner and orders that Respondent,
Rio Grande Valley Gas Company, its officers, agents, successors,
and assigns , shall take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act was
heard before Trial Examiner George A. Downing in Brownsville , Texas, on August 13
and 14 , 1964 , pursuant to due notice . The complaint , issued on May 8, 1964, based
on a charge dated March 16, 1964, alleged in substance, as amended at the hearing,
that Respondent engaged in unfair labor practices proscribed by Section 8(a) (1), (3),
and (4) of the Act by engaging in various specified acts of interference , restraint,
and coercion ( interrogations , threats, changing working conditions , etc.) and by
discharging John L. Ivey and Thomas Krummel on March 6 because of their union
membership and activities and because Krummel gave testimony under the Act in
Case No. 23-CA-1739. Respondent answered , denying the allegations of unfair
labor practices and averring as to the Section 8(a)(4) allegation that it had no
knowledge that Krummel gave testimony in the former case, which was dismissed by
the General Counsel after investigation.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent , a Texas corporation with its principal place of business in Browns-
ville, is a public utility engaged in the transmission and distribution of natural gas in
the counties of Hidalgo , Cameron, Willacy, Starr, and Jim Hogg, and is a nonretail
operation . During the year prior to the issuance of the complaint , Respondent
received gross revenues in excess of $250,000 and sold and distributed products valued
in excess of $50,000 to companies who in turn sold and shipped goods and materials
valued in excess of $50,000 to points outside the State of Texas. During the same
period Respondent purchased from extrastate sources , services and materials in excess
of $50,000 which were shipped to and utilized at its Texas locations. Respondent
is therefore engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
RIO GRANDE VALLEY GAS COMPANY 491
II. THE LABOR ORGANIZATION INVOLVED
The Charging Union is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and issues
Respondent's operations cover the area of the lower Rio Grande Valley, in which
it has 10 offices and 4 warehouses. Its supervisory hierarchy, so far as material
herein, consisted of William B. Wood, vice president in charge of operations, John
Emery, general superintendent; George B. Mills, supervisor of the Weslaco warehouse;
Kenneth D. Sanders, construction foreman of the Weslaco area; and Lupe Cantu, a
foreman under Sanders.
In 1958 the Union became the bargaining representative of Respondent's distribu-
tion, maintenance, installation, and service employees (numbering some 124 at the
time of the strike), and has since negotiated with Respondent a series of contracts.
Relations have been uniformly harmonious except for a single strike of 2 weeks'
duration which began on January 13, 1964, because of inability to reach a new con-
tract to follow one which expired on December 25. Upon termination of that strike
by the Union on January 27, Respondent reinstated all striking employees, and some
time later the parties negotiated a new 3-year contract, effective as of June 29.
No evidence of animus was shown on the part of Respondent's top management as
a result of the strike, but Mills, Sanders, and Cantu were charged with certain coercive
acts and statements upon which the General Counsel relies to establish discriminatory
motivation for the discharges of Thomas J. Krummel, Jr., and John L. Ivey. The
supervisors denied or explained the statements which were attributed to them, and
Respondent defends the discharges of Krummel and Ivey further on the ground that
they were discharged for cause at the direction of Vice President Wood during their
service as probationary employees, pursuant to a provision in the contract. No sub-
stantial issue was presented as to certain changes in working conditions which were
made by Supervisor Mills, though it is disputed whether Mills later made a full
restoration of all the privileges.1
B. Interference, restraint, and coercion
The bulk of the General Counsel's case as regards Section 8(a)(1) was directed at
Supervisor George B. Mills, with single separate incidents being charged to Super-
visors Lupe Cantu and Kenneth D. Sanders. We shall consider the latter incidents
before turning to Mills' conduct.
Thomas Krummel, Jr., testified to a conversation with Cantu at Primera on or
about December 22 (a Sunday) in which Cantu stated that the employees were
stupid to think the Company was going to give them a raise and that if they got a
raise they would not know what to do with the money. Cantu denied that testimony
and denied further, after checking certain timesheets, that his crew worked at
Primera at any time around December 22. I find it unnecessary to resolve the credi-
bility issue, for I find that even if the statements were made, they constituted only an
expression of opinion which contained neither threat of reprisal nor promise of
benefit. See Section 8(c) of the Act.2
1 Because of the prior record of harmonious relations between Respondent and Union
because they were able after the strike to resolve their differences and to reach a new
contract, I suggested at the close of the hearing that for the purpose of facilitating
continued amicable relations, they also attempt to settle the matters involved herein.
Thereafter Respondent and Union reached agreement for a partial settlement of the
case (dealing mainly with the reinstatement of Krummel) and forwarded a motion for
dismissal of certain portions of the complaint, which is hereby made a part of the record
herein The General Counsel filed an opposition on the ground that a private settle-
ment is not a substitute for the remedies sought on behalf of the Board by the Regional
Director in the public interest and because the proposed agreement did not provide an
adequate remedy. I find the General Counsel's position to be well taken and I deny
the motion to dismiss because the settlement was only a partial one and because the
motion papers are silent as to remedial action other than the reinstatement of Krummel.
2 Krummel testified to another conversation with Cantu, not alleged in the complaint,
which occurred some 2 or 3 days after the strike ended, in which Cantu commented that
the employees knew the Union had not done anything and that the 2 weeks (on strike)
had been useless. Though Cantu did not specifically deny that testimony, the General
Counsel assigns the statement not as an additional violation of Section 8(a) (1), but
only as fitting into a pattern of union animus.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supervisor Sanders was a captain in the National Guard , and employees Thomas
Krummel, Jr., and John L. Ivey were members of the guard under his command.
Krummel was also under Sanders' supervision as an employee but Ivey was not.
Both employees testified, and Sanders admitted, that during the course of a Sunday
drill at the armory on January 12, Sanders discussed with them separately the matter
of the impending strike (which began the next day) and made certain statements
concerning the effect that strike participation might have upon their status as proba-
tionary employees. The exact content of those statements is in dispute.
Krummel testified that Sanders sought him out, asked if he were going to be on
strike, and told him that if he were, he might not get his job back when he went back
because he had not completed his 6 months' probation. Sanders added, however, that
if it were up to him, Krummel would get his job back, but that it would be up to the
Brownsville office. Ivey testified similarly (on rebuttal) that Sanders asked if he
were going on strike the following morning and that when he replied he would do
what he thought best, Sanders continued that he assumed Ivey knew he was still a
probationary employee and that the Company might or might not fire him if he went
on strike.
Sanders testified that it was Krummel who sought him out, asking about the strike,
and that he replied he could not discuss it because he had orders not to, but he sug-
gested that Krummel should check his status due to the fact he was a probationary
employee, and he asked if Krummel realized that. His conversation with Ivey was
almost identical, with Ivey stating he had already checked his status with the Union
and there was nothing to worry about.
Rebuttal testimony was given by Robert Reyna (not a probationary employee)
that Sanders also discussed the strike with him at a drill at the armory and that
Sanders stated there was no use in striking, that the employees would get nothing out
of it, and that they had better give in and go back to work. Though Reyna became
quite confused as to the time of that conversation, Sanders made no denial of the
fact that it occurred and he admitted on his direct examination that Reyna was one
of those with whom he had discussed the strike on Sunday, January 12, at the armory.
As is seen, Sanders' own testimony went far toward confirming that of Krummel
and Ivey. Reyna's testimony also showed that Sanders was without reticence (despite
his alleged orders) in discussing the strike with employees and in attempting to
restrain their strike action. I therefore credit the mutually corroborative testimony
of Krummel and Ivey and I find that Sanders warned and threatened them that they
might lose their jobs as probationary employees if they went on strike. By such
conduct Respondent interfered with, restrained, and coerced employees in the exer-
cise of rights guaranteed in Section 7 of the Act.
Turning now to Mills, Ivey testified to three separate conversations with Mills
involving allegedly coercive statements. The first occurred shortly after Ivey was
hired on October 6, and immediately after Guillermo Vega solicited Ivey to join the
Union. Mills called Ivey into the office, closed the door, and stated he knew that
Vega was talking to Ivey about the Union, and that although it did not matter to
Mills one way or the other, it would not do Ivey any good to join because the Union
had been there for several years and had not done anyone any good. Shortly before
Christmas, Mills reported to Ivey that the employment agency through which Ivey
had been hired had called to complain that Ivey had not paid his bill and Mills stated
that if Ivey had not joined the Union, he could have kept the $3 and paid his bills.
A week before the strike Mills informed Ivey that those who went on strike would not
be working for the Company anymore.
Although Mills denied making all of the foregoing statements, I find it necessary
to resolve the credibility issue on the first two because I find that even on the basis
of Ivey's version, Mills' statements constituted only an expression of opinion which
contained neither threat of reprisal nor promise of benefit. See Section 8(c) of the
Act. It is also to be noted that under Ivey's testimony, Mills assured him that it did
not matter to Mills one way or the other whether Ivey joined the Union.
Persuasive in resolving credibility on the third conversation concerning the strike
is the fact that further evidence, next to be summarized, concerning Mills' reaction to
the strike and his actions and statements concerning it plainly established that Mills
developed a strong animus against the Union because of the strike. I therefore credit
Ivey's testimony that Mills threatened that employees who went on strike would be
terminated.
The evidence is undisputed that immediately after termination of the strike, Mills,
acting without instructions from his superiors and without notice to them, summarily
eliminated certain cleanup and washup periods and also revoked the privilege
previously accorded the employees of purchasing sweetbread (pan dulce) during their
coffee breaks. Mills' only explanation as a witness was that as he himself originated
RIO GRANDE VALLEY GAS COMPANY 493
the practices (some 13 years earlier ), he had the right to take them away. There was
testimony, however, by Guillermo Vega (of the Union's bargaining committee) that
Mills based his action on the fact that the Union did not have a contract at the time
and that when he (Vega) later sought on April 22 (before the Board's investigation)
to have Mills restore the pan dulce privilege, Mills replied that things would come
back to normal as before if the Union would sign a contract.3
Respondent did not learn of Mills' actions until the Board's investigation of the
charge herein and it took prompt action to have Mills restore the privileges. The
evidence is in conflict, however, as to whether Mills in fact made a complete
restoration.
By memorandum from General Superintendent Emery dated April 30, Mills was
directed to reinstate the 5-minute cleanup period and to conform to certain earlier
instructions regarding coffee breaks. On May 12 Vice President Wood directed Mills
to post Wood' s notice to the employees regarding the restoration of the cleanup
period. Neither memo made reference to a 5-minute wash up period, and so far as
the coffee break practice was concerned, Emery's memo directed, not restoration of
the privileges which Mills formerly allowed his staff, but conformity to Respondent's
general practices elsewhere.
Mills undertook to follow the letter of the memorandums . Vega testified that though
the cleanup time was restored, Mills refused to allow the washup time and that he
imposed certain restrictions on the coffee break (pan dulce) privilege which had not
existed before the strike. Though Mills testified in general terms that he restored the
latter privilege (without referring to any restriction upon it), I credit Vega's testimony.
I conclude and find from all the evidence that Mills changed the aforesaid work-
ing conditions and privileges because the employees had gone on strike and in an
attempt to force the Union to sign a contract. By said conduct and by Mills' further
statement that the pan dulce privilege would be restored if the Union signed a con-
tract, Respondent interfered with, restrained, and coerced employees in the exercise
of their Section 7 rights.
The General Counsel also claims certain violations of the Act resulting from the
action of the credit union in changing its practices concerning the making of loans,
the withdrawal of shares, etc., during the period of the strike. I find, however, that
the General Counsel failed to establish that Respondent was responsible for those
actions, which were authorized in formal meetings of the board of directors of the
credit union. Indeed, there was no evidence that Respondent controlled, or that it
influenced in any way, the management of the credit union, which so far as the evi-
dence showed, was organized and operated as any Federal credit union, through
officers and directors chosen by its members, many of whom were employees and
relatives of employees. The mere fact that a large proportion of the officers and
directors were simultaneously Respondent's supervisors does not establish company
control or responsibility, for there was no evidence that in considering and in voting
upon loan restrictions during the strike, the directors were acting in the capacity
of Respondent's agents or representatives. Certain statements which Vega attributed
to Mills (a director ) concerning a change in the loan practices were plainly explana-
tory of the official action taken by the board of directors.
C. The discharges of John L. Ivey and Thomas J. Krummel
John L. Ivey was hired on October 6, 1963, and Thomas J. Krummel was hired on
October 23. Ivey joined the Union and signed a checkoff card. Krummel joined the
Union but did not sign a checkoff card, though he testified, without denial, that Cantu
knew of his union membership. Both of them participated in the strike.
The contract which expired on December 25, 1963, contained a seniority clause
which provided in part that until an employee completed 6 months of continuous
service, he should be considered as being on probation and could be terminated by
the Company at any time during the probationary period without assigning cause or
reason. Though probationary employees could become members of the Union if they
desired, they were given no right to file grievances concerning termination or discharge.
Respondent agreed prior to the expiration of the contract that if no new contract
were reached prior to the expiration, it would continue to comply with the terms of the
old contract with the exception of the provisions for checkoff and arbitration. There
is no claim that it did not do so.
8 Though Mills denied the complaint allegation which was supported by that testimony,
I credit Vega's testimony in view of the extent of Mills' union animus as shown by all
the evidence herein.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Krummel and Ivey were both discharged on March 6 , while they were still proba-
tionary employees . Krummel was handed a discharge letter by Sanders over Sanders'
signature , and Ivey received one from Mills over Mills' signature . Both employees
were reminded of their employment on a probationary basis, and Krummel was
informed that it was the Company's judgment that he had not worked out to its
satisfaction . Ivey was informed that it was the judgment of Mills and the Company
that his attitude and adjustment to his duties as timekeeper had not been of a satis-
factory nature for permanent employment.
Mills' oral statements to Ivey conformed generally to those in the letter . Sanders
informed Krummel in effect that the action was not his doing but was on orders from
above. Krummel testified that when he endeavored to discuss the matter further,
Sanders refused , stating that someone had stabbed him in the back by charging him
with an unfair labor practice , that he was going to look into it, and that "we used
to be friends , but he couldn 't trust us any more."
Sanders testified that he informed Krummel that the letter explained the reason
for the discharge , i.e., that he was an unsatisfactory employee , and that he could not
discuss the matter further because someone on his crew had filed charges against him
and he did not know who had done so.
The facts concerning the charge were as follows : On January 16, J. Elro Brown,
the Union 's representative , filed a charge in Case No . 23-CA-1739 (dismissed after
investigation by the Regional Director ) charging in part that Respondent had uni-
laterally changed working conditions and had also violated Section 8 (a) (1) and (3 )
through intimidation , solicitation , and threats to employees on strike . No employee
names were listed.
Krummel was interviewed by a Board agent and gave a written statement on Janu-
ary 30 . Sanders was also interviewed by the same Board agent and formed the
impression from the line of questioning that the charge was against him as the one
who "was supposed to have broken the rules." When Sanders inquired who filed the
charge, however , the agent would not tell him , but assured him it was not against
him personally but was against the Company . Sanders denied knowing that Krummel
had given a statement to the Board agent in that proceeding or that he had otherwise
testified in any proceeding.
It is upon the foregoing evidence and upon that summarized in section B, supra,
that the General Counsel rests his case of unlawful discharge . We turn , then, to the
evidence upon which Respondent bases its defense and which may be summarized
as follows.
Neither Sanders nor Mills had authority to discharge employees, though both were
fully authorized to make effective recommendations . Krummel and Ivey were
finally discharged at the direction of Vice President Wood, after consultation with
Superintendent Emery, after having postponed action in their cases from early
December to March 6. Emery had reported to Wood in December that Mills and
Sanders had recommended the discharges of Ivey and Krummel, respectively, Ivey
because he was making too many mistakes and was not meeting minimum standards
on the job, and Krummel because he required too much supervision and because of
his relative immaturity . Wood decided , however, not to authorize the terminations
at that time because both Ivey and Krummel had been on the job only a short time,
because ample time remained within the probationary period to make a determination
as to their adequacy on the job, and because a discharge at that time might not improve
the atmosphere in which the current contract negotiations were pending. Wood did
not know whether either man was a union member at the time though he learned
later that Ivey had signed a checkoff.
When Wood directed Emery to hold off doing anything for a while , Emery marked
the matter ahead on his desk calendar for a date some 30 days in advance of the
expiration of probation , and when that date was reached in March, Emery called
Sanders, reminding him that Krummel 's probationary period was nearing an end.
Sanders informed him that Krummel 's work had not improved and that the time
had come to discharge him. Mills recommended to Emery similarly that Ivey should
be let go. Upon further discussions between Emery and Wood, Wood made the
decision to terminate both men and authorized Emery to take the action. Emery
in turn directed Sanders and Mills to proceed with the discharges , and the latter
thereupon prepared and delivered the discharge letters of March 6
Testimony by Sanders and Mills confirmed the fact of their December recom-
mendations and the renewals in March.
Respondent terminated a total of 12 probationary employees from 1959 through
April 6, 1964 , and some 24 others resigned, in many cases after being informed
that their work was unsatisfactory . Of five probationary employees at the time of
RIO GRANDE VALLEY GAS COMPANY 495
the strike, Respondent discharged, in addition to Krummel and Ivey, one Thomas
Dodson on January 31 (after termination of the strike). Dodson had not joined the
Union and had not gone out on strike.
The General Counsel contends, however, that the reasons which Respondent
assigned for discharging Krummel and Ivey were nonetheless pretextual because of
union animus on the part of Mills and Sanders as shown by the record and because
of certain weaknesses and inconsistencies in the testimony concerning the short-
comings of Ivey and Krummel. It is therefore necessary to review in somewhat more
detail the evidence concerning their respective job performances.
Ivey was employed as a timekeeper and stock clerk, and his duties included answer-
ing telephone and radio calls, relaying messages, and keeping the perpetual inventory
records on some 1,500 to 1,800 different items in stock at the Weslaco warehouse.
Almost from the outset Mills became concerned about Ivey's failure to keep the
inventory records accurately and about the frequency of errors in simple addition and
subtraction of materials. Though Mills and his assistant, Kenneth Lindsay, plainly
exaggerated the number of errors which Ivey made (e g , they counted as separate
errors those which had perpetuated themselves by being carried forward in succeeding
entries), Ivey admitted making a substantial number of the errors which appeared on
the face of the records introduced in evidence. Ivey also in turn undertook to mini-
mize the number of occasions on which Mills and Lindsay (Mills' assistant) called
his errors to his attention.
I conclude and find from the records themselves and from Ivey's admissions that
Ivey made a large number of errors which continued throughout the course of his
employment, and I credit the testimony of Mills and Lindsay that they called Ivey's
errors to his attention on a number of occasions.
Mills' complaints also included the fact that particularly following the strike, Ivey
did not answer the telephone properly nor relay properly the messages which came in
over the telephone and radio. Ivey's excuse as expressed to Mills was that as the
telephone had been moved from his desk, he felt he did not have to answer it? Ivey
admitted that Mills complained to him about his failure to take calls and to relay
messages.
Complaints by Sanders and Cantu concerning Krummel included the playing of a
transistor radio on the job, thereby interfering with the work of the employees, play-
ing cards for money with other employees, and cat-calling at girls on the street from
the company car or truck. The force of the first two complaints was substantially
offset, however, by the testimony of Krummel and Alberto Zavala that Cantu made
no real objection to the radio on the job, that card playing had gone on during lunch
periods before, as well as after, Krummel came onto the job, and that Sanders him-
self had participated in the card games before he became a supervisor. However,
Krummel made no denial of the cat-calling charge
Despite the weakness of the evidence on the first two complaints, the fact remains
that Sanders reported to Emery on all three matters and that Emery in turn reported
them to Wood. Though Wood admittedly made no personal investigation, the evi-
dence before him and on which he acted plainly warranted the conclusion of imma-
turity on Krummel's part and of his unsatisfactory performance on the job.
Turning now directly to the issue of motivation, it is of great significance that the
original recommendations for the discharges were made at a time and under circum-
stances which were devoid of suggestion of union animus. Furthermore, postpone-
ment of action then was motivated in significant part by the desire not to upset rela-
tions with the Union. And when the matter was revived in March, it was at Emery's
initiation, not that of Mills or Sanders, and the discharges were directed after consulta-
tions between Emery and Wood, neither of whom shared in, or were aware of, the
feelings of Mills and Sanders concerning the strike or the strikers. The absence of a
discriminatory motivation was also demonstrated by Respondent's prompt reinstate-
ment of all strikers after the strike, including, significantly, all who worked under
Mills and Sanders, and by Respondent 's action in discharging after the strike a proba-
tionary employee who had not joined the Union and who had not gone on strike.
I therefore conclude and find that the General Counsel did not establish by a
preponderance of the evidence that Respondent discharged Ivey and Krummel because
of their union membership or activities or because they had gone on strike. I also
conclude and find similarly that the General Counsel did not establish that Krummel
was discharged because he gave a statement to a Board agent concerning the earlier
S During the strike the telephone was moved to a location only 3 feet from Ivey's
desk for the purpose of making its use more convenient for persons who were called
to the telephone . The new location was still relatively convenient to Ivey, who needed
only to swivel around in his chair to take a call
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge. Krummel's discharge had been ordered, as above found, by Emery and
Wood, and it was not until after Sanders actually made the discharge that he made
the statement which stands alone in support of the General Counsel's present conten-
tion. Furthermore, Sanders' statement to Krummel and his testimony on the stand
were that he did not know who filed the charge, and there is no evidence to the con-
trary and none which refutes his further testimony that he did not know Krummel
had given a statement to the Board.
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices , I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action which is conventionally ordered in such cases , as provided in the Recommended
Order below , which I find necessary to remedy and to remove the effects of the
unfair labor practices and to effectuate the policies of the Act. Because of the
limited exte ,it of the unfair labor practices found herein and because Respondent
has no prior record of unfair labor practices , I shall recommend a narrow cease-
and-desist order.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. By interfering with , restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor prac-
tices proscribed by Section 8(a) (1).
2. The aforesaid unfair labor practices affect commerce within the meaning of Sec-
tion 2 ( 6) and ( 7) of the Act.
3. Respondent did not engage in unfair labor practices proscribed by Section
8(a) (3) and ( 4) of the Act by discharging John L . Ivey and Thomas Krummel, Jr.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record,
and pursuant to Section 10(c) of the Act, I hereby recommend that the Respondent,
Rio Grande Valley Gas Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge or other reprisals if they should go on a
strike called by the Union.
(b) Changing working conditions by eliminating cleanup and washup periods and
by imposing restrictions on coffee break privileges because the employees had gone on
strike or in order to coerce the Union into signing a contract.
(c) Promising employees that certain privileges would be restored on condition
that the Union sign a contract.
(d) In any like or similar manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization to form, join, or assist
Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other
labor organization, to bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or all such
activities.
2. Take the following affirmative action:
(a) Fully restore to its employees such working conditions and privileges as
existed prior to the strike of January 13, 1964, or as they may be negotiated by bar-
gaining with the Charging Union herein as the collective-bargaining representative
of its employees.
(b) Post in its various offices and warehouses in the area of its operations copies of
the attached notice marked "Appendix A." 5 Copies of said notice, to be furnished
by the Regional Director for Region 23, shall, after being signed by Respondent's
representative, be posted by Respondent immediately upon receipt thereof and main-
tained by it for 60 consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be
In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be en-
forced by a decree of a United States Court of Appeals, the words "a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"a Decision and Order."
LOCAL 542, INT'L OPERATING ENGINEERS, AFL-CIO 497
taken by Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 23, in writing, within 20 days from
the receipt of this Decision , what steps Respondent has taken to comply herewith.6
It is further recommended that the complaint be dismissed insofar as it alleges viola-
tions of Section 8(a)(3) and (4) of the Act and' also as to alleged Section 8(a)(1)
violations except as found herein.
e In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , in writing , within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT threaten employees with discharge or other reprisals if they
should go on a strike called by the Union.
WE WILL NOT change working conditions by eliminating cleanup and washup
time nor impose restrictions on coffee break privileges because the employees
have gone on strike or in order to coerce the Union into signing a contract.
WE WILL NOT promise restoration of certain privileges on condition that the
Union sign a contract.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of their right to self-organization , to form, join,
or assist Oil, Chemical and Atomic Workers International Union, AFL-CIO, or
any other labor organization , to bargain collectively through representatives of
their own choosing , or to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from any
or all such activities.
WE WILL fully restore all such working conditions and privileges as existed
prior to the strike of January 13, 1964, or as they may be negotiated by bargain-
ing with said Union as the collective-bargaining representative of our employees.
All our employees are free to become or remain or refrain from becoming or
remaining members of the above-named or any other labor organization.
RIO GRANDE VALLEY GAS COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 6617 Fed-
eral Office Building, 515 Rusk Avenue, Houston , Texas, Telephone No. Capitol
8-0611 , Extension 4271, if they have any question concerning this notice or compli-
ance with its provisions.
Local 542, International Union of Operating Engineers , AFL-CIO
[Ralph A. Marino , General Contractor] and Anthony Scariot
Local 542, International Union of Operating Engineers , AFL-CIO
and Americo Sella. Cases Nos. 4-CB-917-1 and 4-CB-917-2.
March 9, 1965
DECISION AND ORDER
On October 25, 1963, Trial Examiner William J. Brown issued
his Decision in the above-entitled proceeding, finding that Respond-
151 NLRB No. 55.
783-133-66-vol . 151-33