Rocky Mountain Natural Gas Co., Inc.

National Labor Relations Board - Board Decisions

Feb 11, 1963

140 N.L.R.B. 1191 (N.L.R.B. 1963)

ROCKY MOUNTAIN NATURAL GAS COMPANY, INC. 1191
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Sections
9(c) and 2(6) and (7) of the Act.
4. In accord with the stipulation of the parties, we find that the
following employees of the Employer at its Prince Georges County,
Maryland, operation constitute a unit appropriate for collective-
bargaining purposes : All drivers, helpers, and warehousemen, exclud-
ing office clerical employees, professional employees, guards, and
supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
Rocky Mountain Natural Gas Company, Inc. and Jacque Welch,
Milo Henry Dick. Cases Nos. 07-CA-1195-1 and 27-CA-1195-2.
February 11, 1963
DECISION AND ORDER
On September 17, 1962, Trial Examiner William J. Brown issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. He also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint, and
recommended dismissal of such allegations. Thereafter, the General
Counsel filed exceptions to the Intermediate Report and a supporting
brief, and the Respondent 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 these cases to a three-
member panel [Chairman McCulloch and Members Leedom 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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and, as it finds merit in some of the General Counsel's
exceptions, hereby adopts the findings of the Trial Examiner only to
the extent consistent herewith.
1. The Trial Examiner found, and we agree, that the Respondent
violated Section 8 (a) (1) of the Act by Manager Showalter's threats
to employees of layoff or other economic reprisal if they engaged in
union activities.,
1 No exceptions were filed to these findings of violations of Section 8 (a) (1) of the Act.
140 NLRB No. 113.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 24, 1961, Showalter also questioned employee Dick
as to why a scheduled union meeting was being held at a particular
building rather than at the plant. The Trial Examiner found that
this inquiry was not violative of the Act as it was innocently motivated
and had no coercive effect. During the same conversation, however,
Showalter threatened Dick that if the men continued in their organi-
zational efforts, they would be laid off and the work would be con-
tracted out. The Trial Examiner found this threat violative of
Section 8 (a) (1). We find that Showalter's interrogation of Dick,
in the context of this threat and of the Respondent's other violations
of the Act, was likewise violative of Section 8(a) (1) of the Act.2
2. It is undisputed that in early October 1961, Service Manager
Boyd interrogated employee Lewis about the Union, and told Lewis
that he had heard that the men were organizing, and he hated to see
them do so because he did not want the men to get into trouble with
their Employer on account of the Union; that he did not think the
Respondent could pay union wages; that if it wanted union men it
could get them in Grand Junction; and that he thought the Respond-
ent would contract the work out before it would do so.
The Trial Examiner found no violation of the Act in this conversa-
tion on the ground that there was no allegation in the complaint
covering it. The complaint, however, does contain such an allega-
tion, although there is a variation in the date on which it occurred.
Moreover, the Respondent was apprised of the issue and had full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence, thereon, which it did. We find, therefore, that
by Boyd's interrogation and threats, the Respondent further violated
Section 8(a) (1) of the Act.'
The Trial Examiner also found that Boyd's interrogation of em-
ployee Welch on December 1, 1961, as to the names of the officers of
the Union, was not violative of Section 8(a) (1) on the ground that
it was not coercive under the Board's Blue Flash rule.4 In view of
the context of the various other violations by the Respondent, how-
ever, we find this interrogation also violative of Section 8(a) (1) of
the Act.5
3. On or about January 10, 1962, just after the discharge of Dick
and Welch, discussed below, Newton, the Respondent's president,
called a meeting of all the employees at the Delta operation. The
Respondent admits that Newton informed the employees that he had
received a proposed union contract from Dick, that the Respondent
was not financially able to meet such proposals, but that, if the em-
ployees remained "loyal," the Respondent could erase the deficit and
z Urtggs Equipment, Inc., 125 NLRB 1252, enfd 307 F. 2d 275 (C.A. 5).
s New England Web, Inc., et al, 135 NLRB 1019.
4 Blue Flash Express, Inc., 109 NLRB 591
5 Plastic Molding Company, Inc, 110 NLRB 2137
ROCKY MOUNTAIN NATURAL GAS COMPANY, INC. 1193'
see that its employees were the best paid in the area. It is undisputed
that during the course of this meeting, Newton also read to the em-
ployees a newly established written policy covering holiday pay,
vacation pay, and sick leave. The Trial Examiner made no finding
with respect to Newton's speech because it was not specifically al-
leged as an unfair labor practice in the complaint. However, as this
matter was litigated at the hearing, and as it is clear from the record
that Newton's references to company loyalty, and the institution of a
written policy covering holiday pay, vacation pay, and sick leave,
constituted promises and grants of benefits designed to discourage
union activity among its employees, we find that the Respondent
thereby violated Section 8 (a) (1) of the Act.'
4. On February 5, 1962, Vice President Reed called employees
Lewis and Chappel into the office, and engaged in a discussion with
them concerning dissolving the Union. It is undisputed that he of-
fered to pay the balance of the Union's debts from his own pocket,
and that he assisted Lewis and Chappel in preparing a notice to the
employees that there would be a meeting at 5 that evening in the ware-
house to discuss dissolution of the Union. This notice was posted on
company property with the Respondent's permission. That after-
noon, Showalter called employee Blees, the Union's vice president,
into the office. The Respondent admits that Showalter and Reed
questioned Blees about the Union and expressed concern that the
Union's demands would be too great, that Showalter suggested that
he would rather handle grievances without a union, and that when
Reed asked Blees if the men would dissolve the Union, Blees stated
that if the men wanted to do so he would go along with it, but there
were certain technicalities involved. Thereupon, Reed admittedly
stated that if the Union was in debt to an attorney or for any other
bills, he would pay such bills out of his own pocket. At the ineeting
that evening, it is undisputed that Reed repeated this offer.
The Trial Examiner found, in effect, that this conduct was not a
violation of the Act because it did not occur precisely as alleged in the
complaint. We find, however, that this conduct is encompassed within
the allegations of the complaint, and, moreover, that it was fully
litigated at the hearing. Therefore, we find that, by inducing certain
employees to abandon the Union, by assisting them in the prepara-
tions for the dissolution of the Union, by offering them payment of
the Union's debts if the Union were abandoned, and by making this
same offer at the meeting that evening at which the employees agreed
to the dissolution of the Union, the Respondent violated Section
8(a) (1) of the Act'
" See Union Furntture Company, Inc ., 118 NLRB 1149
78 H Kress & Co , 137 NLRB 1244 , Overrate Transportation Company, 129 NLRB=
1026, enfd. 308 F . 2d 279 (CA. 4).
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The Trial Examiner found that the Respondent discharged
Welch and Dick in December 1961 because of an economic reduction
in force. The General Counsel maintains that the Respondent failed
to establish any economic justification for a reduction in personnel,
and that, in any event, the selection of Welch and Dick for termina-
tion was discriminatory.
As the Trial Examiner found, and the Respondent admits, both
Welch and Dick were highly superior employees, with greater senior-
ity than some of the gasfitters who were retained. Dick had trained
a number of helpers to become licensed fitters. Welch had been pro-
moted in August 1961 to the position of service manager at the Re-
spondent's Glenwood Springs operation, which position he relin-
quished for personal reasons. Upon his return to Delta, he was acting
supervisor during October and November in place of Boyd.
It is also clear, as the Trial Examiner found, that Welch and Dick
were two of the most active union adherents, and that the Respondent
was aware of this. On December 6, 1961, at a meeting of all the Delta
employees, Showalter asked who was president of the Union. After
Dick identified himself as president, Showalter stated, as pointed out
above, that he did not believe the Respondent would stand for any
organization, and that, if the men persisted in their union activity,
there would be layoffs and work would be contracted out.
Welch was interrogated at various times by Showalter, Boyd, and
Supervisor Ray concerning his attitude toward the Union. In addi-
tion, as set forth above , there were repeated threats of layoffs if the
employees persisted in their union adherence , made by officials of the
Respondent , particularly Showalter , whom the Trial Examiner found
to be the "day-to-day head of the company in that Region." However,
in concluding that the Respondent was not discriminatorily motivated
in the discharge of Welch and Dick, the Trial Examiner found that he
could place no "controlling significance" on Showalter's threats since
Showalter did not take a "controlling part" in the determination of
the employees to be laid off nor the selection of those to be retained.
This finding is not adopted, however, as the record establishes that
Showalter was one of the Respondent's officials who decided upon the
number of employees to be retained , and that he approved the selec-
tion of Welch and Dick for discharge. In addition, contrary to the
Trial Examiner , we cannot accept the Respondent 's contention that
it first selected those gasfitters who were to be retained or transferred,
and that Welch and Dick happened to be the only two who remained
for discharge after this process of elimination . We are convinced,
upon the entire record, that the Respondent would not permit two
of its most highly qualified and experienced employees to be termi-
nated in such a haphazard manner if it were not seeking to terminate
the most active union adherents , as it had threatened to do.
ROCKY MOUNTAIN NATURAL GAS COMPANY, INC. 1195
We note, moreover, that the record shows that there was a need
for gasfitters at the time Welch and Dick were discharged. Thus,
on December 16, 1961, just prior to Wrelch's discharge, Supervisor
Ray offered Welch a transfer to a more responsible position at Coll-
bran, and on February 5, 1962, after his discharge, Vice President
Reed offered him gasfitter's work on a contract basis. Additionally,
the record shows that on the same day that Welch and Dick were
discharged, Supervisor Ray offered a gasfitter's job to gasfitter helper
Ashby, who was promoted to gasfitter soon after the discharge of
Welch and Dick. Accordingly, even assuming that economic justifica-
tion for some layoffs existed's we find, under all the circumstances,
that the Respondent selected Welch and Dick for discharge because
of their leadership in union activities, in violation of Section 8(a) (3)
and (1) of the Act.
TIIE REMEDY
Having found that the Respondent has engaged in and is engaging
in certain unfair labor practices, we shall order that it cease and
desist therefrom and take certain affirmative action to effectuate the
policies of the Act. As we have found that the Respondent dis-
criminatorily discharged Jacque Welch and Milo Henry Dick, we
shall order it to offer each of them immediate and full reinstatement
to his former or a substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and to reimburse him
for any loss of pay he may have suffered by payment to him of a sum
of money equal to the amount he would have earned as wages from
the date of the discrimination to the date of the offer of reinstatement,
less his net earnings during said period.9 The backpay due will be
computed on a quarterly basis with interest at the rate of 6 percent
per annum in the manner set forth in F. W. Woolworth, Company,
90 NLRB 289, and in Isis Plumbing c0 Heating Co., 138 NLRB 716."
Upon the basis of the foregoing and the entire record in these cases,
the Trial Examiner's conclusion of law number "5." is deleted and
we hereby renumber the Trial Examiner's conclusion of law number
"4." as number "5." and make the following additional conclusion of
law :
4. By discriminating in regard to the hire and tenure of em-
ployment of Jacque Welch and Milo Henry Dick, the Respondent
has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) and (1) of the Act.
8 Whitelight PrO duets Division of White Metal Rolling and Stamping Corp, 137
NLRB 678.
0In accordance with policy recently adopted by the Board, there shall be no tolling of
backpay for the period between the issuance of the Intermediate Report and the Order-
herein A P W. Products Co., Inc, 137 NLRB 25
10 Member Leedom, for the reasons set forth in his dissenting opinion in the Isis case,
would not direct the payment of interest on the backpay award
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Rocky Mountain
Natural Gas Company, Inc., Delta, Colorado, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from :
(a) Interrogating its employees concerning their union activities
in a manner violative of Section 8(a) (1) of the Act, offering benefits
to induce its employees to refrain from union activities, and threaten-
ing its employees with layoffs or other economic reprisals in retalia-
tion for activities on behalf of Rocky Mountain Gas Workers Union,
,or any other labor organization.
(b) Discouraging membership in the above-named or any other
labor organization of its employees by discriminatorily discharging,
refusing to reinstate, or in any other manner discriminating against
them in regard to their hire or tenure of employment, or any term or
condition of employment, except to the extent permitted by Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives
of their own choosing, and, 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, except to the extent that
such rights may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Offer to Jacque Welch and Milo Henry Dick immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privi-
leges, and make each of them whole for any loss of pay suffered as
a result of the discrimination against him as provided in the section
above entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payments records, timecards, personnel records,and reports,
and all other records necessary to determine the amount of backpay
due and the rights of employment under the terms of this Order.
ROCKY MOUNTAIN NATURAL GAS COMPANY, INC. 1197
(c) Post at its offices and installations throughout its western di-
vision, copies of the attached notice marked "Appendix." tl Copies
of said notice, to be furnished by the Regional Director for the Twenty-
seventh Region, shall, after being duly signed by an authorized rep-
resentative of the Respondent, be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for a period of
60 consecutive days thereafter, in conspicuous places, including all
places where notices to its employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-seventh Region,
in writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
11In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify our employees
that:
WE WILL NOT interrogate our employees concerning their union
activities in a manner violative of Section 8 (a) (1) of the Act,
offer benefits to induce our employees to refrain from union
activities, or threaten our employees with layoffs or other eco-
nomic reprisals in retaliation for activities on behalf of Rocky
Mountain Gas Workers Union, or any other labor organization.
WE WILL NOT discourage membership in the above-named or
any other labor organization of our employees by discriminator-
ily discharging, refusing to reinstate, or in any other manner dis-
criminating against them in regard to their hire or tenure of
employment, or any term or condition of employment, except to
the extent permitted by Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist the
above-named or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to en-
gage in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that such rights may
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be affected by an agreement requiring membership in a labor orga-
nization as a condition of employment as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL offer to Jacque Welch and Milo Henry Dick immedi-
ate and full reinstatement to their former or substantially equiv-
alent positions without prejudice to seniority or other rights and
privileges, and make each of them whole for any loss of pay
suffered as a result of the discrimination against him.
All of our employees are free to become, remain, or refrain from
becoming or remaining members of any labor organization, except as
that right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act, as amended.
ROCKY MOUNTAIN NATURAL GAS COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
NoTE.-We will notify either of the above-named employees pres-
ently 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 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, 609 Railway Exchange Building, 17th and Champa Streets,
Denver, Colorado, Telephone No. Keystone 4-4151, Extension 513,.
if they have any question concerning this notice or compliance with
its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, under Section 10(b) of the National Labor Relations Act, as
amended, hereinafter called the Act, commenced with the filing of charges by Jacque
Welch and Milo Henry Dick on March 21, 1962. Thereafter the complaint was
issued on May 9, 1962, by the Regional Director for the Twenty-seventh Region.
It alleged, in addition to jurisdictional matters, the commission of unfair labor
practices on the part of the above-indicated Respondent by various acts of inter-
ference with employees' statutory rights under Section 7 of the Act on the part of
Respondent's supervisors, Showalter, Boyd, and Reed; these are alleged as unfair
labor practices within the scope of Section 8(a)(1) of the Act.' The complaint
further alleges that the above-indicated Charging Parties were discharged because
of activities on behalf of Rocky Mountain Gas Workers Union, this being an
unfair labor practice within the scope of Section 8(a)(3) of the Act.
At the outset of the hearing the Trial Examiner denied General Counsel's motion to
amend the complaint by adding an allegation of threats by District Manager Bramlett.
It appeared that in the circumstances , particularly in view of Bramlett's departure from
Respondent' s employment, the addition would not serve the ends of justice
ROCKY MOUNTAIN NATURAL GAS COMPANY, INC. 1199
Respondent's answer puts in issue the jurisdiction of the Board and the status of
the Union as a labor organization. Respondent also denies the commission of the
unfair labor practices alleged and affirmatively, admitting the discharge of Welch
and Dick on or about December 27, 1961, and its refusal to reinstate them, asserts
that they were discharged with seven other employees pursuant to an economically
motivated reduction in force.
The hearing on the issues herein was held from July 17 to 19, 1962, at Delta,
Colorado, before Trial Examiner William J. Brown. All parties 2 participated here-
in and were afforded full opportunity to present evidence and argument on the
issues; at the close of the taking of evidence the Respondent and the General Counsel
argued on the record in support of their positions on the issues. Following the close
of the hearing the Respondent and the General Counsel filed briefs on August 31,
1962, which have been fully considered by me.
Upon the record herem,3 and upon the basis of my observation of the witnesses,
I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Respondent Employer, Rocky Mountain Natural Gas Company, Inc., is a
gas public utility engaged in the collection and distribution of natural gas within
the State of Colorado and the distribution of liquefied petroleum gas in certain
communities on the western slope of Colorado. Respondent's annual gross revenues
exceed $250,000. Respondent's answer concedes that in certain annual periods it
has made interstate purchases exceeding $50,000 and the parties have stipulated
that for the year 1961, Respondent received directly from points outside the State
of Colorado shipments of gas and other products valued in excess of $50,000. On
the pleadings and the evidence herein, I find that the Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act and that assertion
of the Board's jurisdiction is warranted.
H. THE LABOR ORGANIZATION INVOLVED
The alleged acts of interference with the statutory rights of employees and the
alleged discriminatory discharges are, according to the General Counsel, related
to employees' membership in and activities on behalf of the Rocky Mountain Gas
Workers Union. The constitution and bylaws of that organization are in evidence;
also in evidence is a proposed collective-bargaining agreement submitted on behalf
of that organization to the Company. The testimony herein and the foregoing
documents clearly establish that the Rocky Mountain Gas Workers Union was 4 an
organization in which employees participated and which existed for the purpose of
dealing with the Company concerning grievances, wages, and conditions of work
generally. The fact that it was unaffiliated with any national or international labor
organization and was in fact limited to the employees of the single employer herein
involved does not preclude its having the status of a labor organization under the
Act. See E. I. du Pont de Nemours & Company, 63 NLRB 1387; Inyo Lumber
Company of California, 129 NLRB 79; see also 1 U.S.C A. § 1. I find that the
Union was, at the material times, a labor organization within the scope of Section
2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and summary of events
Rocky Mountain Natural Gas Company, Inc., organized in 1953, was initially
engaged in the distribution of natural gas in a limited area on the eastern slope of
Colorado. Its present principal executive officer, William A. Newton, became
associated with the Company in 1958 In 1959 it acquired gas contracts on wells
in the Delta area and franchises for the distribution of natural gas in certain areas
on the western slope. At or about this time it also acquired the assets of Domestic
Propane Company which had been engaged in the sale and distribution of liquefied
petroleum gas in and about the section of the western slope to which Rocky
Mountain Natural Gas Company later extended its natural gas pipelines and distribu-
tion facilities. Henry C. Showalter had been a coowner and ultimately president
2 The Charging Parties participated to the extent of independent cross-examination of
Steverson, a key witness for Respondent.
3 The reference in the transcript at page 51, lines 12 and 13, to "investment in the
Company," should and is hereby corrected to read "investment income "
4 The Union became inactive and presumably dissolved early In 1962
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Domestic Propane until he sold its assets to Rocky Mountain Natural Gas Com-
pany. Subsequently Domestic Propane was dissolved as a corporate entity and
presently operates as a division of Rocky Mountain Natural Gas Company.
Showalter, with headquarters in Delta, is western division manager for the
Rocky Mountain Natural Gas Company with responsibility for natural gas and
liquefied petroleum gas throughout the Company's western slope operations. These
western slope operations extend from Aspen on the east to Dove Creek on the west
with intervening locations at Glenwood Springs, Delta, Montrose, and Norwood-
Under Showalter is Jack Ray, manager of Domestic Propane Division, and Jerome
Sieverson, district manager of Delta district. Under Sieverson is Dean Boyd, service
manager of Delta district. Boyd was the immediate supervisor of the Charging
Parties, Dick and Welch.
Sometime shortly before the events occurred which led up to the institution of the
present case, the Company undertook major extensions of its natural gas pipelines.
This required substantial additions to working capital and the Company issued a
large quantity of equity securities and also undertook debt financing through a bond
issue. This increase in the Company's capitalization and indebtedness was reflected
in an increase in its assets from somewhat more than $300,000 in 1958 to substan-
tially in excess of $6 million at the time of the hearing. During 1960 and until the
late spring of 1961, as the pipeline was extended to new areas on the western slope,
the number of meter installations followed the curve normally expected in the gas
utility business where meter installations, which is the measure of conversions from
coal, fuel oil, or propane to natural gas, increase or decrease according to a fairly
predictable scale affected by the duration of entry into the new market area and the
season. On the basis of its analysis of future prospects for meter installations, man-
agement commenced in June 1961, or shortly thereafter, the formulation of a plan
to reduce installation work forces in the area about Delta. This led to a reduction in
force among the installation fitters in the course of which Dick and Welch, Charging
Parties herein, were selected for layoff.
In the meantime, commencing about June 1961, interest had developed among
the employees in the Delta area looking toward the formation of a labor organization.
There was some approach made by representatives of a national labor organization
in Grand Junction, but at a meeting held at Dick's house about September 29, 1961,
and attended by some 22 employees from the Delta and Montrose areas, the em-
ployees favored an independent organization and their organizational plans there-
after developed along the lines of the Union. Subsequent meetings developed the
fuller organization of the Union and at a meeting held about November 2 at Dick's
house a number of employees from the Delta area signed the constitution and bylaws
as charter members. Subsequently Milo Dick became president and Jacque Welch,
treasurer.5
B. Interference, restraint, and coercion
The complaint alleges and the answer of Respondent denies the commission of
unfair labor practices in the nature of interference, restraint, and coercion with re-
spect to employees' rights during the late fall of 1961 and early winter of 1962. These
unfair labor practices are alleged to have been committed through the agency of
Showalter, Boyd, and Reed.6 The issues in this regard are discussed below.
1. Henry C. Showalter
Showalter, as recounted above, is western division manager of the Company and
as such is the operating head of the Company in the area with which we are here
concerned. He heard talk about employee activities looking toward self-organization
at least as early as the first week of October 1961. The evidence indicates that by
November 24 he had knowledge that the employees were forming an independent
organization though he might not at that time have known its precise name. In any
event, he knew that Dick was in the forefront of the self-organization move.
It is alleged that Showalter on or about November 24 threatened an employee of
the Delta operation with economic reprisals against him and all others engaged in
union or other concerted activity. It is also alleged that Showalter on or about
r ,Dick and Welch emerged at an early date as leaders in the organizational efforts
and Dick furnished his home as a meeting place and became interim chairman and later
president Welch appears to have been a highly articulate spokesman and ultimately
tieasurer of the Union.
6 General Counsel's brief refers to offers of benefits by President Newton as an induce-
ment to abandon the Union They were not alleged as unfair labor practices in the
complaint
ROCKY MOUNTAIN NATURAL GAS COMPANY, INC. 1201
December 6 threatened employees of the Delta operation with economic reprisals
for engaging in union or other concerted activity. Showalter is also alleged to have
interrogated an employee employed at Delta about a forthcoming union meeting on
or about November 24, 1961.
a. Interrogation
The allegation of an unfair labor practice in the nature of interrogation on the
part of Showalter concerns the contents of a conversation held on that date between
Showalter and Dick in the Delta office. Prior to November 24, 1961, there had been
at least three meetings of the employees at Dick's home and just before the Novem-
ber 24 meeting, notice of it with an indication of a change of meeting place to the
REA Building was sent out by Dick to all employees of the western division.
Insofar as the alleged interrogation is concerned there is virtually no dispute as
to the facts in this area. The interrogation is alleged to have taken place late in the
afternoon of November 24 when Showalter, learning from some unexplained source
that there was to be a meeting of the men that night at the REA Building, left word
for Dick to come into his office when Dick returned at the conclusion of his tour of
duty. Dick testified that Showalter asked hurt why the meeting was being held at the
REA offices instead of at the plant and was told that since election of officers was
scheduled the meeting should more properly be held away from Dick's home and
they had engaged the REA office .for that purpose. According to Dick, Showalter
wanted to know if he could attend the meeting and was told that the meeting would
be an open one until such time as it came to the vote when he would have to leave.
According to Dick, he told Showalter that the reason the Union was being formed
was because the employees could not get to management to discuss grievances, to
which Showalter, according to Dick, made the remark that no person or union was
going to tell him how to run the business. Showalter, for his part, explained that
the reason he made inquiry of Dick as to the reason for the meeting of the employees
at the REA Building was that he had previously had information as to the meetings
held at Dick's house and he, basically, wanted to inquire as to whether there were
any complaints or disturbances that he could assist in handling. Showalter did not
attend the meeting.
It is clear from an analysis of the testimony of the witnesses to this conversation
that Dick's interrogation by the General Counsel was designed to elicit simply the
fact that Showalter asked the question as to why the union meeting was being held
at the REA Building, whereas Showalter's interrogation by counsel for the Respondent
was designed to explain the reasons why any interrogation was undertaken. The
evidence is clear that there was interrogation by Showalter of Dick concerning the
forthcoming union meeting. I credit Dick's testimony that Showalter asked him why
the union meeting (and Showalter conceded that he know it was to be a union meet-
ing) was being held at the REA offices. It seems clear from Dick's account of this
conversation that there was no coercion in fact, for he clearly appears to have ac-
cepted Dick's inquiry as an inoffensive one and responded to it by saying that the
meeting was open and Showalter could attend until it came time for elections. Dick
took the occasion to explain to Showalter the reasons why the employees were engaged
in self-organization. Appraising this interrogation in the light of circumstances sur-
rounding it, including the clear indications that it was innocently motivated and had
no coercive effect in fact, it would not seem to be an unfair labor practice. Blue Flash
Express Inc., 109 NLRB 591.
b. Individual threat
The complaint alleges and the answer denies that on or about November 24, 1961,
Showalter threatened an employee of the Delta operations with economic reprisals
against him and all other employees engaged in union or other concerted activity.
This item of the case also concerns the conversation between Dick and Showalter
early in the evening of November 24, the threat, according to the General Counsel's
theory, following the interrogation referred to above.
According to Dick's testimony, after the inquiry as to the reason for the meeting's
taking place at the REA Building and Dick's volunteering the information recounted
above as to the reason for the employees' interest in organization, Showalter stated
that no person or union would tell him how to run the business. When Dick replied
that that was not the objective of the organizational efforts, Showalter said that if
the men persisted, the fitters would be laid off and the work would be contracted out.
On cross-examination Dick conceded that Showalter did not tell him that the em-
ployees could not organize into a union. Dick denied that Showalter made the state-
ment as a mere prediction as to the probable consequences of too strenuous demand-
by the Union
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Showalter 's denial of Dick's testimony is somewhat less than categorical. He is
clear in his recollection that , in agreement with Dick 's account , he did state that he
would not tolerate employees telling him how to run his business either directly or
through an organization . He does think it unlikely that he made the particular state-
ment attributed to him because the word "persisted " is not within his vocabulary. At
most, Showalter could only say that he did not recall making the statement attributed
to him by Dick . I credit Dick 's account of the facts as to the conversation in this
regard. Accordingly I find that Showalter did in fact threaten Dick that if the men
continued in their organizational efforts they would be laid off and the work would
be contracted out. This is plainly an unfair labor practice . 1. S. Abercrombie
Company, 83 NLRB 524, enfd. 180 F. 2d 578 (C.A. 5).
c. Group threat
The complaint alleges that on or about December 6, 1961, Showalter threatened
employees of Respondent's Delta operations with economic reprisals if they engaged
in union or other concerted activities. Sometime prior to December 6, 1961, the
Company had determined upon the necessity of reducing labor costs in the Delta pipe-
fitting operation and had communicated that determination to Showalter. Showalter
called a meeting of all Delta employees in the warehouse on December 6. He had
the twofold purpose of acquainting employees with the discouraging financial outlook
of the Company and commenting on his impressions of some dissension among the
employees Showalter asked the assembled group of employees who was president
of the Union and when Dick identified himself as its president, Showalter complained
that he had heard the men were going over his head and taking the proposal for an
agreement directly to Denver. According to Dick, Showalter then said that he did
not believe the Company would stand for any organization and would more than
likely contract the work out. On cross-examination Dick conceded that he was some
distance from Showalter and was not listening too good and that all that Showalter
actually said was "something about that the Company wouldn't go along with it and
if it kept persisting there would be work contracted out "
Shirley Lewis attended the December 6 meeting and attributed to Showalter the
statement that he had heard the men were forming a union and he did not personally
think the Company would accept it but would contract the work out. George Chap-
pell attended the December 6 meeting and testified that Showalter opened it by saying
he had heard that a union was being formed and in his opinion the Company would
be unable to stand the cost of union organization and that if the men continued
organization the Company would be forced to curtail operations of the fitters and
helpers and contract their work out
Welch attended the meeting of December 6 and corroborated Dick's testimony as
to Showalter's words
For the Respondent Showalter testified that he called the meeting because he
wanted to present to the employees information he had received concerning the
financial status of the Company, and also to caution the employees that some dissen-
sion apparently was interfering with the efficiency of the crews. He explained at that
time that in the Roaring Fork Valley conversion jobs where the Company had been
short of employees, they had contracted the work out to gasfitters, that the contract-
ing out had progressed satisfactorily, and that unless efficiency increased among their
own district offices, he was sure that the Company could engage in additional con-
tracting out with the resultant layoff of some men. Showalter conceded that although
he did not intend directly to relate the Union to these statements, he could well have
said that whatever caused the lack of productivity, whether it was due to dissension
on account of union organization or anything else, the Company could not stand
for any greater financial load.
Gerald Wethington corroborated Showalter's account that a brief rundown of the
financial status of the Company and the discouraging prospects was given on the
occasion of the December 6 meeting and also corroborated Showalter in his account
that his statement was to the effect that if the Company did not improve its financial
picture, it might have to contract installation work outside. Wethington's recollection
of the conversation on that occasion is plainly indistinct however, because he testified
that he never heard the word "union" mentioned by Showalter and did not recall
Showalter's asking the identity of the president of the Union, contrary to Showalter's
admission that he did on that occasion ask that question.
Allen Ashby recalled that the December 6 meeting started with Showalter's refer-
ence to rumors about the union organization and the statement that he was of the
opinion that the Company could not stand any large increases in pay, explaining the
financial condition of the Company and that there could be no increases until the
Company was in better financial position. He did not recall any reference to con-
ROCKY MOUNTAIN NATURAL GAS COMPANY, INC. 1203
tracting out. Earl Miller's account of Showalter's speech was that Showalter more or
less casually said that if the employees kept on with the Union, he personally felt the
Company was not in a financial position to pay higher wages and that they might have
to contract installation work out.
The evidence is not crystal clear. This is naturally to be expected where several
witnesses are called to attest the words of a speaker uttered more than 7 months
previously. It is clear, however, that Showalter mentioned the Union and men-
tioned contracting out I think the inherent probabilities are that Showalter said
that if the union dissension continued, there would be contracting out and layoffs.
I also find Welch, whose demeanor impressed me favorably, credible. I therefore
find the allegations of the complaint sustained by the preponderance of the testimony
in this area. Clearly such an utterance by the day-to-day head of the Company
in that region was an unfair labor practice. J. S. Abercrombie Company, supra.?
2. Dean Boyd
The complaint alleges that Respondent's service manager, Dean Boyd, on or
about November 25, 1961, interrogated a Delta employee concerning results of
a union meeting. The issues in this regard center around the contents of a conversa-
tion between Boyd and Welch.i The conversation occurred about December 1, 1961,
shortly after Boyd returned from a period in Glenwood Springs, during which period
Welch had been acting in charge of the Delta office. On that occasion, according
to Welch, after some preliminary conversations about routine business operations,
Boyd brought up the subject of the Union and when Welch said that it had been
organized, Boyd asked who the officers were and Welch told him. It appears
from the cross-examination of Welch that he regarded this inquiry as more or
less casual and a natural subject to be brought up between the two of them. Boyd's
recollection of the conversation was indistinct, although he conceded the possibility
that he might, entirely as a casual matter, have inquired as to the identity of the
officers but he did not pointblank ask the question as a matter of pressing concern
to him. This conversation appears on the evidence herein to be entirely casual in
nature. In the circumstances it is quite plain that there was neither coercion in fact
nor an inherent capacity to coerce Welch or others by an inquiry uttered on this
occasion. Appraising it under the Blue Flash rule, it does not amount to unlawful
interference , restraint , or coercion.
3. Vice President Reed
Respondent is alleged in paragraphs V(e) and (f) of the complaint to have
engaged in interference, restraint, and coercion through Vice President Reed's action
on or about February 15, 1962, in urging individual employees to refrain from
union activities and by threatening employees in a general meeting with economic
reprisals if they continued adherence to the Union, while promising economic bene-
fits if they abandoned the Union.
a. Restraint of individual employees
The alleged unfair practice in the nature of urging individual employees to refrain
from union activities centers around the events occurring in Respondent's Delta
warehouse on February 5, 1962. The evidence indicates that there was an argument
among union members Morris, Chappell, and Lewis in the warehouse that morning.
Morris voiced a desire to withdraw from the Union and this provoked opposition
from Chappell and Lewis. On that occasion, Reed called Chappell and Lewis into
Boyd's office and reprimanded them for arguing and bickering on company premises
and time. Chappell's recollection of Reed's statements on that occasion was that
Reed said he could not stand for arguing and bickering on company premises on
company time, and that if it continued, the parties would have to be replaced.
Lewis recalled that Reed added that if a majority of the men wanted a union, that
would be acceptable, but he did not think they had the majority and he did not
want arguing back and forth on company time. The cross-examination of Lewis
brought out that the argument in the warehouse that morning was in fact rather
7 Respondent 's brief relies principally on Bilton Insulation, Inc , 129 NLRB 1296, which
I believe is clearly distinguishable mainly because of the assurances given in that case
and the clearly predictive tenor of the remarks there.
8 General Counsel 's brief charges a violation of Section 8(a) (1) in Boyd 's Interrogation
of Shirley Lewis in October 1961. There is, however , no such allegation in the complaint.
681-492-63-vol. 140-77
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loud and approached the point of physical contention. By the time Reed entered
the warehouse after the argument, Morris had gone. Reed, for his part, conceded
that he did not actually hear the argument in the warehouse but it came to his
attention, and that he called Chappell and Lewis in. His account of the conversa-
tion is not substantially different from theirs.
It appears that in the course of this conversation Chappell and Lewis informed
Reed that any dissension difficulties would probably be soon dispelled because to
all appearances the men were losing interest in the Union and would probably dis-
solve it. Reed at that time offered the use of company facilities fora meeting and
notice thereof for use of employees in determining whether or not a majority desired
to continue with or dissolve the Union. His offer occurred however after the
employees had indicated the probable dissolution of the Union. While Reed may
have acted with questionable alacrity in his offer of facilities to assist the speedy
demise of the Union, it does not appear that he engaged in the unfair labor practice
alleged in the complaint.
The evidence relating to the nature of Reed's remarks on the morning of Febru-
ary 5, 1962, quite plainly do not sustain the allegations that on that occasion Reed
urged individual employees to refrain from union activity.
b. Group threats and promises
Respecting Reed's alleged threats and promises referred to in paragraph V(f)
of the complaint, the question is as to the contents of a speech made by Vice Presi-
dent Reed to all employees of the Delta operations assembled in the warehouse on
the evening of February 5, 1962. The meeting of employees had been called for
that evening pursuant to the understanding reached among Reed, Chappell, and
Lewis on the occasion of their talk in the morning of the same day. Following the
morning meeting, a notice was posted calling employees' attention to the meeting
to be held on that evening. About the same time a petition looking to the dissolu-
tion of the Union was circulated among employees Witnesses called by the Gen-
eral Counsel to testify to the contents of Reed's remarks on the occasion of the
evening meeting were Lewis, Chappell, and Dewey Blees.
Lewis' account was that the meeting was presided over by Reed and that Reed
repeated his opposition to bickering, and added the statement that if a majority
wanted a union, the Company would accept it, but if they did not, the Company
would rather the matter be dropped. He recalled that it was shortly after these
opening remarks by Reed that the employees considered the matter of signing the
dissolution document and while they debated and affixed their signatures, Reed
and Showalter absented themselves, returning sometime later when a majority of
men had signed the instrument of dissolution. He further stated that when Reed
and Showalter returned to the room, Reed inquired as to whether the men needed any
help in paying off outstanding debts of the Union, and stated that if they did, he would
be glad to help them out.
Chappell recalled that the instrument of dissolution was signed by the employees,
and thereafter the business of the Union's indebtedness was brought up and Reed
offered to pay any balance owing, which offer was rejected by Chappell. In his
cross-examination Chappell could not recall whether Reed's offer to pay any
balance of union indebtedness occurred before or after the supervisors left the
room to allow the employees to debate the matter.
Blees testified that on the afternoon of February 5, he was called into Showalter's
office to talk with Showalter and Reed. There ensued a conversation as to the
difficulties that the organizational efforts on behalf of the Union were making with
company operations. Reed asked him about dissolving the Union, according to
Blees. Blees said that it looked like the men were giving it up anyway and at that
time he mentioned to Reed that there were certain technical difficulties in connec-
tion with dissolution, including the matter of liquidating the indebtedness that had
been incurred. Respecting the meeting held in the evening of that day, Blees testified
that Reed again offered to pay any outstanding debts of the Union but his recollec-
tion appears to be that this offer occurred after the dissolution paper had been
circulated and signed.
Reed's recollection of the events of the evening meeting on February 5 was that
at the time for the opening, he, recalling that Dewey Blees had been a frequent
spokesman of employees in the past, asked Blees whether he wanted the supervisors
to leave Blees then asked him to say something so Reed spoke, according to his
testimony, about the need for harmony among the working crews, coupled with the
assurance that it made no difference to the Company whether they wanted to be
union or nonunion so long as harmony resulted. His recollection was that it was
ROCKY MOUNTAIN NATURAL GAS COMPANY, INC. 1205
shortly after that that he and the other supervisors left the room and on their return
were told that all former union members had now indicated no interest in the Union.
Reed's recollection is that after the supervisors returned to the meeting some individ-
uals asked for financial assistance for the Union or its members in meeting its debts,
and Reed told them that if any individual needed help he would personally give
them assistance . Showalter's account of the events of the evening meeting sub-
stantially corroborated Reed.
A fair view of the evidence , both that adduced by the General Counsel and that
by the Respondent , does not preponderate in favor of a finding that on the occasion
of the evening meeting, Reed either threatened reprisals or promised benefits. Rather,
the evidence preponderates in favor of the view that Reed, after the union dissolution
had been determined upon, offered to assist individual members to meet their com-
mitments for union expenses . The General Counsel 's contention that Reed offered
to pay any of the old union debts from his own pocket in order to cause the
employees to abandon their interest on behalf of the Union is not sustained by the
weight of the evidence.
C. The alleged discriminatory discharges
The principal issue in the present case concerns the reason for the discharge of
Welch and Dick. Respondent 's answer concedes their discharge on or about the
date alleged in the complaint and admits its refusal to reinstate them. By way of
affirmative defense, Respondent asserts that the discharges were effected for economic
reasons in a reduction in personnel.
The General Counsel's case in support of the allegations of discriminatory motiva-
tion in the discharges of Welch and Dick rests on the claim that these two were en-
titled both by seniority and qualifications to be retained in preference to other
employees in any reduction in force; furthermore , in his brief, General Counsel
submits that the Respondent had a burden of justifying its action in undertaking any
reduction in force in December 1961.
Reference has been made above to management 's decision formulated in Decem-
ber 1961 to institute a reduction in forces among the conversion crews working out
of Delta. The general outlook of the Delta operations from the management view-
point was outlined by Respondent 's secretary -treasurer , Shockley. He testified that
the Delta operations were found in mid-1961 to constitute a financial drain on the
overall system to an excessive degree. As a consequence , Shockley and the Com-
pany's controller visited Delta early in September 1961 , following a request from
Showalter for $35,000 to meet payroll and other bills. I credit Shockley 's testimony
that at that time and as a result of his and the controller 's examination of the opera-
tional records at Delta, it was determined to be necessary , from a management point
of view, to make changes in the conversion crews' operations . At that time there
was no determination made as to any individual pipefitter 's delinquencies but it was
determined that excessive overtime was being charged and the standard workday
was not being fully devoted to chargeable work. In addition , they discovered that
employees were working out of Delta headquarters on assignments in Aspen and
Glenwood Springs at a per diem cost to the Company.
About this time, as mentioned above, it would be natural that the volume of
conversion work in the Delta area would be subsiding both because of the oncoming
winter decline in conversions and because of the length of time that had expired
since the introduction of natural gas into the Uncompahgre Valley. On the other
hand, natural gas was being extended into the Roaring Fork Valley with the
consequence that there would be a greater need for conversion men in Glenwood
Springs and Aspen. The Company's president , Newton, and vice president, Reed,
both of whom impressed me as credible , also testified to the economic considera-
tions underlying the determination to reduce the conversion crews in number at
Delta.
The General Counsel in his brief contends that there had been no prior layoff of
gasfitters at the Delta site since 1959 , and that the burden shifted to Respondent of
justifying a reduction in force in 1961 . In this regard General Counsel has cited
Croscill Curtain Company and Durham Drapery Company, 130 NLRB 1465, 1468.9
I must reject the General Counsel 's contention in this regard . Even accepting the
°In modifying the Board 's Order the court, 297 F. 2d 294 (CA. 4), pointed out that
departure from past practice may be a suspicious circumstance but must be considered
only in the light of the entire record which in that case, as in the instant case , includes
the factor that other known union leaders were not discharged . See also Falstaff Brewing
Corporation, 128 NLRB 294 , footnote 2.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concept of a transfer of the burden of going forward with evidence, the record as
a whole abundantly indicates that the management decision to reduce forces at
Delta in December 1961 not only had a plausible basis but is clearly shown by a
preponderance of all the testimony to have been economically motivated. In this
regard I appraise the testimony of Newton, Reed, and Shockley as establishing the
economic necessity of a reduction in force and as substantially unimpaired by cross-
examination.
The key issue remaining is as to the reason for management's selection of Dick and
Welch as the two conversion gasfittters to be released from the Delta crew. Man-
agement officials had, on the record herein, clear knowledge of the leading role
played by Dick in the Union. I credit Dick's testimony that Showalter was informed
by Dick himself that he was president of the group and also the uncontradicted
testimony that Dick, together with Dewey Blees, on December 12, presented the
Union's proposed collective-bargaining agreement to Showalter on behalf of the
Union. Also I reject the contention in Respondent's brief that there was absolutely
no evidence of employer knowledge of Welch's union activity. In this regard I
credit the testimony of Welch that in the course of a conversation with Dean Boyd
on December 1, 1961, Welch informed Boyd of the names of the officers which
would include Welch himself as treasurer. Boyd, testifying as a witness for the
Respondent, did not deny Welch's account of the naming of the union officers, though
he did deny taking any action on the basis of the information. I find that at the
time of the selection of Welch and Dick for layoff, the Respondent had knowledge
of their union activity.
The record is clear that both Dick and Welch were fully qualified gasfitters and in
fact had been superior employees from a technical point of view. Dick trained a
number of helpers to become licensed fitters and in general the record reveals that
he was a fully qualified and dependable employee. With respect to the competence of
Welch, the record indicates that he was possibly even superior to Dick. In August
1961, he was promoted to the important position of service manager at the Glenwood
Springs operation of the Company, an office which he relinquished only because of
the illness of his wife. Upon his return to Delta, he acted for 2 months, October and
November 1961, as acting supervisor in place of Dean Boyd. In addition to his
selection for supervisory assignments, he also conducted a training school for gas-
fitters on behalf of Respondent. The record is clear that both Welch and Dick were
thoroughly qualified from a technical point of view,10 and had substantial length of
service with the Company and seniority over some of the gasfitters who were not laid
off in December 1961.
As indicated above, however, the decision had been made bona fide to reduce
forces. Pursuant to this decision by top management, local management at the sev-
eral installations were informed of the total number of gasfitters they would be al-
lowed to retain following the reduction in force. The allocation for Delta, presented
to Showalter, Boyd, and Sieverson by Newton and Reed, was two fitters, two helpers,
and one serviceman. The actual selection of the pipefitters to be retained was made
by Sieverson with the assistance of Boyd. Sieverson testified that he arrived at the
decision to terminate Welch and Dick by the process of elimination. The Delta pay-
roll in December 1961 had eight pipefitters Three of these, Clay, Zink, and Case,
had been requested by and were accordingly assigned to other areas. One of the
pipefitters on the Delta payroll, Morris, was selected to fill the job of serviceman on
the basis, according to Sieverson, of his versatility and public relations aptitude. Of
the four remaining pipefitters, Lewis 11 had 15 years' service with the Company and
was sufficiently versatile to handle the multiplicity of assignments that would be
expected with a reduction in force. Chappell had 5 years' service and was sufficiently
adapted to the Company's operations to fit into a variety of assignments.
By the selection of the six above indicated, Welch and Dick were, by the process
of elimination, left to be terminated. Sieverson also testified that there were nega-
tive reasons which entered into his thinking on this occasion. With respect to Welch,
he testified that with respect to two consumers, Davis and Father Kane, there had
been instances of inability to handle the public relations aspects of the Company's
operations satisfactorily; he also felt Welch was not fully loyal to the Company and
its products, and had indicated a desire to stay with the Company only long enough
10 Each testified credibly that at the time of their notice of layoff they were told the
Company had nothing against their work. Also Welch's competence is shown by the
conclusive evidence that in February 1962, Vice President Reed considered contracting
work out to him.
11 Lewis and Chappell were union members and secretary and vice president, respectively.
CHAMPA LINEN SERVICE COMPANY 1207
to finance his wife 's way through beauty school. 12 With respect to Dick , there had
been a report of a clash between Dick and the Norwood manager, and also there
had been a disagreement between himself and Dick on a technical matter.
Viewed in its totality , the evidence does not preponderate in favor of a finding that
Welch and Dick were discharged because of their activities on behalf of the Union.13
I shall, accordingly, recommend dismissal of the allegations under Section 8(a)(3)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section 1, above, have a
close, intimate , and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
In view of my finding that Respondent has engaged in certain unfair labor practices
I shall recommend that it be required to cease and desist therefrom and take certain
affirmative action necessary and appropriate to effectuate the policies of the Act.
On the basis of the foregoing findings of fact , and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By the acts of Division Manager Henry C. Showalter in threatening employees
with economic reprisals if they engage in activities on behalf of the Union, Respondent
has engaged in conduct that interfered with, restrained, and coerced employees in the
exercise of their rights under Section 7 of the Act, thereby engaging in unfair labor
practices as defined in Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
5. Respondent has not engaged in unfair labor practices defined in Section 8(a) (3)
of the Act.
[Recommendations omitted from publication.]
2 The evidence herein confirms the impression, conveyed by his bearing at the hearing,
of Welch as a person of superior talents and with a zeal to excel and advance but prob-
ably not a docile "organization man."
18 The General Counsel relies in part on the conduct of Jack Ray In offering a responsible
assignment to Welch at Collbran on December 15 and in stating to employee Ashby on
December 27 that fitters were needed at Delta. I cannot assign any substantial signifi-
cance to this evidence in view of the clear indications that Ray's authority does not extend
to conversion crews. There is no showing that Ray participated in conferences leading up
to the layoffs . Nor can I place any controlling significance on Showalter 's threats which
I have found above to be interference under Section 8(a)(1) since the record indicates
that Showalter did not take a controlling part in determination of the number to be laid
off nor the selection of those to be retained.
Champa Linen Service Company and Laundry, Linen and Dry
Cleaning Drivers, Local Union No. 905, and Dry Cleaning and
Laundry Workers, Local Union No . 304. Case No. 27-CA-1243.
February 11, 1963
DECISION AND ORDER
On November 15, 1962, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
140 NLRB No. 112.