Synergy Gas Corp. And Propane Transportation Corp.

National Labor Relations Board - Board Decisions

Sep 14, 1988

290 N.L.R.B. 1098 (N.L.R.B. 1988)

1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Synergy Gas Corporation and Propane Transporta-
tion Corporation and Local 863 , International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , AFL-CIO.'
Case 22-CA-15150
September 14, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On May 18, 1988, Administrative Law Judge
Harold B. Lawrence issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed a statement
in opposition to the exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions, brief, and state-
ment in opposition and has decided to affirm the
judge's rulings, findings,2 and conclusions and to
adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I On November 1, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO Accordingly, the caption has been amended to
reflect that change
8 The General Counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
The judge incorrectly found that the petition was received at the
South Plainfield facility the day after the Respondent had received notifi-
cation of a speeding ticket issued to Brewster, the alleged discnmmatee
Rather, the petition was received July 15, 1987, and notification of the
ticket was received July 16, 1987 The judge's inadvertent error does not
affect the decision
Gary A. Carlson, Esq., for the General Counsel.
Elliot Mandel, Esq. (Kaufman, Frank, Schneider & Rosen-
weig), of Melville, New York, for the Respondent.
Albert G. Kroll, Esq. (Zazzali, Zazzali & Kroll), of
Newark, New Jersey, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HAROLD B. LAWERENCE, Administrative Law Judge.
This case was heard by me at Newark, New Jersey, on
28, 29, and 30 October 1987. The complaint alleges that
Synergy Gas Corporation (Synergy) and Propane Trans-
portation Corporation (Propane Transportation), referred
to jointly in the complaint as the Respondent, are a
single employer and violated Section 8(a)(1) and (3) of
the National Labor Relations Act (the Act) by firing
George Brewster for supporting Local 863, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO, the Charging Party
(the Union) The joint answer interposed on behalf of the
two companies as Respondents denied that they were a
single-integrated enterprise in commerce while admitting
that each individually was an employer engaged in com-
merce, denied the material allegations of the complaint,
and denied the commission of any statutory violation.
The two companies will occasionally be referred to as
the Respondents or as the Employer. At the hearing, the
Respondents contended that they fired Brewster because
he failed to adhere to safety standards.
The parties were afforded full opportunity to be heard;
to call , examine and cross-examine witnesses ; and to in-
troduce relevant evidence. Postheanng briefs have been
filed by the General Counsel for the Respondents.
On the entire record, including my observation of the
demeanor of the witnesses , and after consideration of the
briefs filed, I make the following
FINDINGS OF FACT
1. JURISDICTION
There is no issue concerning jurisdiction, counsel
having admitted the pertinent jurisdictional allegations
The answer admits allegations to the effect that Synergy
operates a bulk propane plant and is engaged in the
wholesale distribution of propane; that Propane Trans-
portation is bulk transportation of propane; that both
companies operate out of an office and place of business
in South Plainfield, New Jersey; and that both companies
derive gross revenues in excess of $50,000 annually from
the transportation, distribution, and sale of propane di-
rectly to points outside the State of New Jersey. I find
that at all times material each company was and is en-
gaged in commerce within the meaning of Section (2),
(6), and (7) of the Act and that the Union was and is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. General Statement of the Facts
1. Respondents' business and operations
The Respondents are subsidiaries of Synergy Group,
Inc., a holding corporation owned by members of the
Vogel family with offices in Farmingdale, New York.
Jon Vogel is executive vice president and a principal.
Daniel Shientag is general counsel. John P. Russell is
vice president of operations of Synergy, Propane Trans-
portation, and another affiliate named Skelgas, Inc , and
is chairman of the safety committee of Synergy and Skel-
gas, Inc. At the pertinent times, Shientag, like the others,
had his office at the central headquarters in Farmingdale.
Control of labor relations for all the corporations con-
trolled by the Vogel family is handled by Shientag The
290 NLRB No. 142
SYNERGY GAS CORP
common ownership and control of these enterprises and
the centralization of the control of labor affairs leads me
to conclude that for the purposes of the Act, the Re-
spondents constitute a single -integrated enterprise and a
single employer
Propane transports liquid propane from refineries and
pipeline terminals to local bulk distribution plants in New
York, New Jersey, Vermont, and New Hampshire , utiliz-
ing 11,000-gallon cylindrical barrel tractor-trailer trans-
port It has been compared to a pipeline on wheels It
employs 20 persons including , as of July 1987, 6 or 7
drivers
Synergy is involved in wholesale and retail distribution
of propane and maintenance of storage facilities for it It
operates straight chassis trucks with rack bodies to hold
aluminum cylinders (for delivery to retail customers) or
tanks, which hold 3000 gallons of liquid propane Syner-
gy operates nationally The country is divided between 2
regional managers , under each of whom there are 10
area managers, each of whom supervises 8 to 10
branches The 124 branch managers run the day -to-day
activities of the local installations The employee comple-
ment in each branch varies There may be as few as 4 or
more than 30, depending on market density and geo-
graphical location Every branch has short-haul drivers
who deliver propane locally and some also have long-
haul transport drivers and mechanics Two-thirds (1200)
of the employees are drivers
Russell's duties are the same in Synergy, Propane, and
Skelgas, Inc and involve all matters pertaining to prod-
uct delivery and manpower requirements He reports di-
rectly to Jon Vogel At the time of the incidents in-
volved in these proceedings , Philip Nicolette, the area
manager who supervised South Plainfield , reported di-
rectly to Russell because the office of regional manager
was temporarily vacant
2 The hiring and discharge of Brewster
Brewster had 12 years ' experience driving flammable
liquids at the time he applied for a position with Re-
spondents at South Plainfield, New Jersey , on 19 May
1987 i He was hired by William Hall, the branch manag-
er, a week later, after a check was made with his previ-
ous employer At the time of his interview with Hall, he
took an open book test on rules of the Department of
Transportation In his previous employments, Brewster
had received tickets pertaining to equipment violations
but had never received one for a moving violation
He soon became disappointed with the pay and work-
ing conditions and contacted John Braden , the business
agent of the Union, which had a contract with Respond-
ents covering their facility at Parsippany , New Jersey,
about 30 miles away Braden sent him authorization
cards and early in June Brewster began soliciting signa-
tures on the cards His activities continued for approxi-
mately a month He signed his own card on 10 June
And he enlisted the support and aid of Joseph D Vuono,
who signed a card on 8 July
On 13 July, the Union filed a petition for an election,
alleging that a substantial number of the 17 employees of
1 All dates mentioned are in 1987 except as otherwise stated
1099
Synergy at South Plainfield wished to be represented by
it A copy of the petition was mailed to Respondents on
14 July It was received at South Plainfield on Thursday,
16 July , which happened to be the day on which Hall,
Nicolette, and Russell had scheduled a meeting regarding
a New Jersey fuel tax audit Hall turned the petition
over to Nicolette, who gave it to Russell when he ar-
rived for the meeting They discussed the question
whether the dissatisfaction that gave impetus to the drive
for unionization was concentrated among the short-haul
or the long-haul drivers, but came to no conclusion Rus-
sell delivered the petition to Shientag when he returned
to Farmingdale later in the day
The day before, Russell had received in his mail a
notice from the New Jersey Turnpike Authority advising
Synergy that on 7 July a ticket had been issued to one of
its drivers , George Brewster, for traveling 69 miles per
hour in a 55 -mile-per-hour zone Brewster had not ad-
vised Hall or anyone else in the Company that he had
received the ticket Russell , after ascertaining that Nico-
lette knew nothing about it, conferred with Jon Vogel,
and later in the day instructed Nicolette to terminate
Brewster Russell testified that he made the decision to
terminate Brewster
On Monday, 20 July, Nicolette and Hall notified
Brewster that he was being terminated He requested a
letter setting forth the reasons Nicolette called Russell in
Farmingdale and Russell agreed to issue a letter Nico-
lette advised Brewster that , pending issuance of the
letter , he would be on suspension
On 23 July, Russell issued a letter on Propane Trans-
portation stationery , notifying Brewster that his employ-
ment with Propane was terminated as of 20 July The
letter set forth three reasons for the termination (1) the
issuance of the summons to him for exceeding the posted
speed limits, (2) violation of section 392 2 of the Federal
Safety Regulations , which, according to the letter, re-
quired that regulated vehicles be operated in accordance
with the laws of the jurisdiction in which they operate,
(3) failure to comply with item 11 of the Synergy Gas
Corporation Safety Manual Policies and Procedures for
Operating Motor Vehicles, which , according to the
letter, required drivers to report citations for traffic vio-
lations within 24 hours of receipt
B Analysis of the Evidence
1 The evidence adduced in support of the
complaint
a The extent of Brewster's organizational activity
Brewster testified that he became dissatisfied with the
pay and working conditions shortly after he started with
Respondents in June and began seeking signatures on the
cards sent by Braden He claimed that he did so openly
without making any attempt to preserve secrecy, that he
spoke to 10 or 12 persons , gave cards to at least 7 and
possibly 10 persons, and spoke to them in the garage, in
the lunchroom , and elsewhere on the premises Howev-
er, the evidence is not convincing that his efforts were
extensive He was not specific about when or where he
spoke to any particular persons or obtained signatures on
1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cards Except for the card signed by Joseph D Vuono,
he was unable to identify any significant number of cards
or describe the circumstances under which they were ex-
ecuted or received by him from the signatories The
cards that he and Vuono signed are the only two cards
in evidence Despite Brewster 's testimony that he began
talking to the other employees early in June and that
Vuono handed out the cards for him when he had to be
on the road, Brewster's card is dated 10 June and
Vuono's card is not dated until 8 July Brewster's testi-
mony that he had spoken to Vuono about the Union "on
many occasions" indicates to me that Vuono took some
time to become convinced and renders it unlikely that
Vuono did much soliciting There is no satisfactory evi-
dence respecting the duration and intensity of Brewster's
activities and insofar as Brewster claims to have engaged
in such activities , the record is barren of corroboration
from any source respecting the time, the extent, or the
location of Brewster's activity in support of the Union
The picture he furnishes is not as sharply focused and I
am left with the impression that his efforts were not
open and in plain view or so intensive as necessarily to
come to management 's attention
b Animus
In other cases involving other corporations owned by
them in similar Imes of business , Respondents' manage-
ment has been found to have committed unfair labor
practices In its dealings with the Union in connection
with the situation at South Plainfield, Respondents' man-
agement failed to heed the direction of the Regional Di-
rector, contained in the order directing an election, that
an Excelsior list be furnished to the Union The attitude
of management connoted something beyond refusal to
cooperate with an adversary When Russell arrived at
South Plainfield and was given the petition by Nicolette,
his reaction was, "Oh, boy"" He later asked Nicolette
and Hall what the "problem" was and whether the union
drive was among the long-haul transport drivers or the
short-haul distribution drivers
The musings of Respondents' managers about the
"problem" that led the employees to seek the help of a
union do not necessarily show their intention to search
out and eliminate the union activities If viewed as a sign
of malaise among the work force, it is within the prerog-
atives of management to make proper inquiries regarding
it In this case, Russell interrogated the branch and area
managers He did not interrogate employees But on the
basis of the past history of his management 's dealings
with unions, the exsistence of union animus is not out of
the question
Russell conveyed an incredible picture of the reaction
in Farmingdale to the Union's petition according to him,
there was no reaction at all He testified that on his
return to Farmingdale , he gave the petition to Shientag,
who received it without comment It was later the sub-
ject of a conference between Shientag and Jon Vogel,
from which no significant quotations have emerged This
lack of candor at the hearing , combined with manage-
ment's past record, leads me to believe that union animus
existed The question is whether the events at issue were
motivated by it
c Conversation between Brewster and Hall
Brewster testified that on Wednesday , 22 July, he re-
turned to Hall's office to turn in some paperwork and
petty cash and to collect his pay No one else was
present They exchanged amenities and took care of the
several items of business According to Brewster
And then right before I was ready to depart I
said "Bill, off the record , and the reason I am get-
ting laid off or fired and is this due to union activi-
ty?" And he said "Yeah, but I am going to deny it "
And then from there I said "I am going to do what
I have to do " And he said "Go ahead it is really
out of my hands "
And this is when I contacted the union and the
law office was involved And this is where I got my
Petition and I knew it was unlawful
Hall denies having made the statement , asserting that
when Brewster came in he turned in his paperwork and
they talked about toll money, medical records , and pay-
sheets
In assessing the relative credibility of the two men re-
garding this conversation, I am compelled to offset nu-
merous points on which Brewster 's testimony was less
than accurate or candid (such as the extent to which he
was tested , the extent to which regulatory material was
made available to him, and the extent to which Respond-
ents supposedly ignored his requests for a new vehicle)
with a solitary instance in which I find Hall's testimony
questionable on a relatively immaterial point, whether
Brewster and Hall had a conversation in Hall 's office on
the morning of Saturday, 18 July Brewster testified he
came in that morning and Hall told him to come in to
see him again on Monday morning Hall testified that he
did not usually work Satrudays but could have been
there that day, but he was firm in his denial that he had
seen Brewster at that time
It is apparent to me that Brewster 's testimony is prob-
ably correct on this point Nicolette testified that on the
preceding Thursday he received Russell 's instructions to
terminate Brewster very late in the afternoon, since
Brewster had already gone, he left the instructions with
Hall The following day Hall told him that he had not
yet seen Brewster Yet, though Hall had not seen Brew-
ster on Friday and there is no testimony regarding any
telephone contact , Brewster came in on Monday about
9 45 a in equipped with a tape recorder and prepared for
a conference As Hall did not explain how Brewster
knew he was supposed to come in for a conference, I
accept Brewster's explanation
However, Hall's failure to recall this unimportant con-
versation with Brewster does not lend credibility to
Brewster's contention that Hall, a manager experienced
in labor relations , made a damaging admission to him
that he was discharged for union activity Accordingly, I
do not find that Hall made the statement that Brewster
attributes to hum
SYNERGY GAS CORP 1101
d Employer 's knowledge of Brewster 's activities
There is no direct evidence in the record of any notice
or communication to any person in a supervisory or
managerial capacity , or to any person whose knowledge
could be attributed to the Employer , that Brewster was
engaged in activity in support of the Union According-
ly, the General Counsel relies on circumstantial evidence
from which he claims such knowledge or communication
may be inferred the allegedly small size of the plant at
South Plainfield , the openness and lack of concealment
of Brewster's activities , and the fact that two members of
management had sons who were employed at South
Plamfield as drivers Of course, my finding that Brew-
ster's efforts to organize support for the Union were not
intensive undercuts the force of all of these arguments
There are other respects in which the factual basis for
such an inference must be deemed insufficient
James Gerard is the son of Joseph Gerard , the fleet
manager for Synergy and Skelgas , Inc Joseph Gerard's
office is in the Farmingdale headquarters and he reports
directly to Jon Vogel Mark Rutledge is the son of Joan
Rutledge, the dispatcher at South Plainfield In another
proceeding , Respondents stipulated that she was a super-
visor within the meaning of Section 2(11) of the Act
The General Counsel contends that an inference is war-
ranted that James and Mark would have brought Brew-
ster's activities to the attention of management
However, the evidence of family relationship is the
only evidence in the case of the Rutleges , and there is
not much more in the case of the Gerards There is no
evidence in the record that would establish the likeli-
hood that either driver would have made such a commu-
mcation to his parent There is no evidence that either
one lived in the home of the parent , took meals there, or
discussed company business with his parent There is no
evidence respecting their views regarding unionization
Brewster testified regarding statements by James Gerard
"[c]onstantly he said you will never get a union in here
and we will shut the plant down And he said there
will never be a union down here and they will shut the
place down Mr Vogel is a lawyer and he'll fire you and
he will do anything if he finds out you are involved with
the union " That is evidence of James Gerard 's opinions
and expectations, not that James Gerard made any com-
munications to his father pertaining to organizational ac-
tivity Brewster also testified that James Gerard kept in
close contact with his father through telephone calls, but
he did not assert that the subject matter of any of the
calls was Brewster's activity in support of the Union
Brewster was vague concerning the knowledge that
James Gerard and Mark Rutledge might have acquired
Asked whether he ever spoke to James Gerard about the
Union, his response was that it was constantly, that
James Gerard kept in close touch with his father, and
that he made statements quoted above However, Brew-
ster subsequently limited his testimony to an assertion
merely that James Gerard "was aware there was a union
coming on and there was some things going on " Such a
statement in direct response to a question whether he
spoke to James Gerard about the Union indicates that he
did not Moreover, in view of James Gerard 's relation-
ship and his expressed attitude , it is inconceivable that
Brewster would speak to him directly about joining the
Union because he could not reasonably have expected
him to do so or to sign a card
In the case of Mark Rutledge, Brewster did not claim
he ever spoke to him directly He testified merely that
Mark Rutledge was "around" when Brewster talked to
other employees That proves nothing In fact, if Brew-
ster spoke to or in the presence of James Gerard and
Mark Rutledge , it can plausibly be argued that he did so
because he was confident of their friendly feelings
toward him and did not fear that they would do any-
thing to jeopardize his employment That would make it
unlikely that they would report his activities to their par-
ents
The amount of room left for such guesswork demon-
strates the size of the evidentiary void in this case The
kind of evidence that is required in such instances is
noted in American League, 189 NLRB 541, 548-549
(1971 ), in which it was held that an inference that an em-
ployee informed the employer concerning the union ac-
tivities of another employee is impermissible, and that
such a contention must be established by direct evidence
The only permissible exceptions were held to be cases in
which informers know the identity of union adherents,
and inform the employer that the employees are engaged
in union activity, and in which the fact that they made
such statements to the employer is proved by direct testi-
mony
As would be expected, in view of the general lack of
evidence to support an inference that James and Mark
made any reports, there is no evidence that either parent
had any significant discussions with other officers of the
Company regarding any matter supposedly communicat-
ed by his son The General Counsel 's effort to adduce
such testimony from Russell with respect to Gerard
brought forth a complete denial that the senior Gerard
had ever discussed anything about his son's work with
Russell except for the solitary instance of a truck mishap
The General Counsel argued that the length of the
period of time -1 month-which Brewster claims he
spent soliciting signatures justified an inference of knowl-
edge of his activities on the part of his employer The
argument that a month is a lengthy period is based on
the holding in Friendly Markets, 224 NLRB 967, 968
(1976), in which a shorter period was rejected as a cir-
cumstance justifying an inference of knowledge The re-
verse conclusion does not necessarily follow and I reject
the argument I find the decision in Friendly Markets per-
mitted chiefly for the observation there that the "small
plant" doctrine is not applicable solely on the basis of the
small size of a plant or the small number of employees,
as those factors alone do not warrant an inference that
management had knowledge of union activity of specific
employees There must also be evidence that the activi-
ties were carried on under conditions making it likely
that management's attention would be drawn to them.
See also Hadley Mfg Corp, 108 NLRB 1641, 1650 (1954)
(organizational activities carried on at the plant , but not
during working hours), Samsonite Corp, 206 NLRB 343,
349 (1973) (small plant where supervision had close con-
tact with employees), and American League, 189 NLRB
1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
541, 548 (1971) (may consider employer 's statements and
conduct affording reason to believe it had gained knowl-
edge of protected activities ). In American League, it was
commented that the size of a plant may be material if all
the circumstances , including plant size, makes it likely
that the employer observed the union activities of a dis-
charged employee . See also NLRB v. Joseph Antell, Inc.,
358 F . 2d 880 (1st Cir. 1966).
Respondents ' drivers are out on the road a good por-
tion of the time and seldom are present at the premises in
large numbers at one time. The remainder of the employ-
ees engaged in different types of work in different por-
tions of the premises ; besides the drivers , there are me-
chanics, yardmen , and servicemen . Hall is on the prem-
ises all day and makes several tours each day through
the entire facility , but that by itself does not make it
likely that he would encounter union activity and he
does not use the lunchroom at all. So he is not likely to
hear of any union activity . Nicolette , who knows all the
employees by name, is familiar with their employment
history , and considers some of them to be his friends,
nevertheless has jurisdiction over both the Parsippany
and South Plainfield branches and divides his time be-
tween them.
On these facts , no inference of knowledge is warrant-
ed. On the contrary, they demonstrate the precise oppo-
site of what the General Counsel contends . In his post-
hearing brief, counsel for the General Counsel refers to
"[t]he compact size of the premises that comprise the
South Plainfield branch." The premises consists of a
yard, a loading dock , storage tanks, and a building which
was described in the testimony as large. It houses a 2-day
service facility for the trucks , six offices , and a small
lunchroom . There is no evidence of the dimensions of
the premises , but no one referred to them as compact.
Accordingly, there is no basis on which I can infer
that Brewster 's employer had notice that he was solicit-
ing signatures on union cards. Counsel for the General
Counsel seems to have recognized this himself, for, in his
posthearing brief, he presented as "the only explanation
that makes sense" a completely different theory to ex-
plain Brewster's discharge . This was that , on receipt of
the petition , management conducted an investigation to
ascertain the nature of the problem , and that the mem-
bers of management were so enraged on identifying
Brewster as the culprit that they could not control them-
selves and fired him within "hours" of the receipt of the
petition . If that is the only explanation that makes sense,
then we are certainly warranted in discounting the
"small shop" theory and the possibility that the sons of
management personnel reported Brewster 's activities, es-
pecially since Brewster started in June and was not fired
until 20 July.
e. Timing of discharge
As a general matter , the timing of a discharge does
not, either by itself or in light of the severity of such dis-
ciplinary action , compel the conclusion that the dis-
charge was discriminatory . Ray's Liquor Store, 227
NLRB 1800 , 1801 fn . 3 (1977). Timing is one of many
factors to be considered and, like the others, may raise
only a rebuttable inference. Central Buying Service, 223
NLRB 542, 547 (1976).
The discharge of Brewster occurred within a week
after Russell, Shientag, and Vogel learned of the union
petition for election. It also occurred within a week of
receipt of the notice from the New Jersey Turnpike Au-
thority. The three events occurred at approximately the
same time.
Though Brewster claims his union activity was open
and notorious, there is a lapse of 5 weeks between the
commencement of his activity and his discharge. He does
not claim that during that period anything was said to
him about it or that any attempt was made to impede his
union activity. There is no evidence linking his discharge
to the filing of the union petition rather than to the re-
ceipt of the notice of the speeding ticket, insofar as the
element of timing is concerned.
f. Claim of disparate treatment
A discharge that is consistent with an employer's past
practice of discharging employees who commit similar
conduct will be upheld even though the employee's pro-
tected conduct was also a motivating factor in the deci-
sion to discharge. See K & K Transportation Corp., 262
NLRB 1481, 1486 (1982). The General Counsel contend-
ed that the falsity of the asserted reason for discharge is
shown by disparate treatment accorded Brewster, by
general lack of concern on the part of management with
safety matters, and by Respondents' assertedly faulty
handling of driver discipline and safety matters.
I find that disparate treatment was not demonstrated.
There is abundant evidence that other drivers were dis-
charged following serious mishaps on the road and that
Respondents were concerned about safety and sought to
avoid situations involving peril to the public at large,
their drivers, and their vehicles. Brewster's treatment
was not substantially different from that accorded to
others who had behaved similarly. Brewster had been
employed for about 6 weeks when he was discharged.
Joseph Smith, whose tractor-trailer overturned, was dis-
charged after 2 weeks for driving at an unsafe speed (as
distinct from driving in excess of a speed limit). Vuono
was employed for a total of 10 weeks. He received a
speeding ticket for driving a transport 55 miles per hour
in a 45-mile-per-hour zone on 28 August. His tractor-
trailer jackknifed. He was suspended pending analysis by
the Safety Committee and discharged on 21 September.
(That date is after the election, which was held on 18
September, negating any connection between Vuono's
asserted union activity and his discharge.) Charles Breeze
was fired in October 1986 for abandoning a loaded trans-
port on the road. None of these drivers received warn-
ings
Russell testified that the incidents involving over-
turned trucks led to the issuance of an interoffice memo-
randum, dated 20 January 1987, addressed to all Trans-
port Operating Locations, entitled, "Hiring Prerequisites
and Procedures for Transport Drivers." That document
appears to have been a bona fide attempt to ensure that
all persons hired as drivers of transports were familiar
with and adhered to recognized safety principles.
SYNERGY GAS CORP 1103
Brewster's offense was to drive a tanker 14 miles per
hour over the posted speed limit He was traveling at 69
miles per hour in a tanker fully loaded with 9000 gallons
of flammable liquid propane He compounded the offense
by violating a company rule requiring that tickets be re-
ported, on the lame excuse that the police officer told
him that the Company would be notified directly The
General Counsel seeks to equate that conduct with lesser
offenses of an altogether different nature for which driv-
ers were not fired, such as failing to appear for work,
failing to fill out equipment reports, and maintenance
failures such as those just mentioned , which were not
even attributable to the drivers The comparison is com-
pletely inapt
The General Counsel has pointed to Respondents' fail-
ure to discharge several drivers who received tickets, but
the tickets in question were for equipment violations A
ticket issued to William J Smith was for a truck loaded
in a manner likely to result in a spill onto the road be-
cause of a loose binding A ticket received by Bruce J
Golchuk was for insecurely fastened brake pads Neither
truck was a tanker and both tickets involved mainte-
nance matters rather than moving violations Even at
that, it was not demonstrated that the deficiencies en-
tailed continuation of any condition affecting the safe op-
eration of the vehicles
My conclusions are not affected by evidence that Re-
spondents' disciplinary system is not highly organized or
completely consistent or fool-proof in all cases It ap-
pears that there is no written policy covering discipline
and Respondents do not operate a progressive discipli-
nary system But there is discipline Oral and written
warnings are issued by both branch and area managers
and are generally geared to the gravity of the infraction
Hall testified that he customarily gives two verbal warn-
ings and then a written warning , after which he asks Ni-
colette what further action to take
Hall's testimony indicated the type of problems dealt
with by warnings Vuono was given verbal warnings for
failure to write up his truck reports or complete his logs
Warnings were issued to drivers for failures such as
omission to report equipment problems to the mechanics
before leaving for home, for failure to come in to work
(the latter resulting in discharge after three such warn-
ings), lateness, and failure to fill in the logs The warn-
ings patently related to considerably less serious matters
that were largely unrelated to safety infractions , and the
issuance of warnings in such cases instead of dismissals
did not constitute disparate treatment
Nor is my conclusion affected by one apparently aber-
rant occurrence Russell conceded that Jon Vogel ob-
served a driver weaving back and forth between lanes in
a dangerous manner The driver was only given a verbal
reprimand Respondents offered no explanation and it ap-
pears to me to have been an utter failure to enforce disci-
pline and safety rules But this is the only known in-
stance of failure to administer serious punishment for ap-
parently dangerous action and it appears to be an anoma-
lous occurrence which was offset by the other instances
in which severe disciplinary action was taken
Counsel for the General Counsel, in his posthearing
brief, cites the failure of Respondents to produce subpoe-
naed documents consisting of lists of violations of motor
vehicle traffic laws and ordinances by drivers employed
at South Plainfield and urges that I infer that they would
have shown that many drivers who received speeding
tickets were not discharged I decline to draw such an
inference because Respondents' noncompliance was as-
sented to by the counsel for the General Counsel The
subpoena was served at the South Plainfield facility 1
week before the scheduled date of the hearing The Re-
spondents timely moved to revoke the subpoena but the
motion papers did not reach me in time I ruled on the
motion at the hearing and in effect denied it after modi-
fying some of its requirements Counsel for the Respond-
ents stated that the subpoenaed records were stored in
two 44-foot trailers and that the time-consuming task of
extracting the pertinent records had been deferred pend-
ing the ruling on the motion He offered to dig them out
if I would grant a few days' continuance to enable him
to do so On the second day of the hearing , the matter
was put to the General Counsel, who was expressly
given the choice, by me, of going forward, resting his
case, giving Respondents a few days to get the records,
taking an adjournment to move for subpoena enforce-
ment or whatever other action he deemed appropriate
He would not have been prejudiced by a continuance
He stated that he wished to proceed immediately The
existence and availability of the records could have been
ascertained with certainty after a short continuance
which was not granted because the General Counsel's
election to proceed rendered it unnecessary Under the
circumstances, it would be unfair to draw an adverse in-
ference from the Respondents' failure to produce the
documentation
g Single employer status
The evidence warrants a finding that Respondents are
a single employer, and a remedy, had I found a violation,
would properly have been imposed on the two of them
jointly and severally
h Conclusion
The evidence adduced by the General Counsel does
not include any direct evidence or any persuasive cir-
cumstantial evidence that persons in positions of author-
ity in Respondents' management were aware of Brew-
ster's interest in, or activities on behalf of, the Union
There is no convincing evidence that the intensity or
extent of Brewster's organizational activity made it likely
that his activity would come to management 's attention
There is no evidence of disparate treatment A prima
facie case was not proved Moreover, even if it could be
said that every element of a prima facie case of violation
of Section 8(a)(1) and (3) was supported by some evi-
dence, however slight, it could not be maintained that on
the whole case the allegations of the complaint had been
established by a preponderance of the evidence , for the
Respondents convincingly rebutted the General Coun-
sel's case
The General Counsel has cited a number of cases in
his posthearing brief in which an illegal discharge has
been inferred from circumstantial evidence None of the
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
evidence in this case, however, is comparable to the type
of circumstantial evidence that was introduced in the
cases cited.
2. Respondent's explanation for Brewster's
discharge
a. The explanation
If the evidence had been sufficient to establish a puma
facie case of violation of Section 8(a)(1) and (3) of the
Act, the burden would have devolved on Respondents to
show that the discharge had actually been for a reason
not violative of the Act. Respondents offered one that I
found completely credible. the gross violation of safety
which resulted from Brewster's having seriously exceed-
ed the legal speed limit with a fully loaded propane tank
truck.
The nature and extent of a respondent employer's
burden in cases such as this have been clearly spelled
out. In Wright Line, 251 NLRB 1083, 1089 (1980), modi-
fied 662 F.2d 899 (1st Cir 1981), cert. denied 455 U.S.
989 (1982), it was held that in cases alleging violation of
Section 8(a)(1) and (3), in which the employer had both
permissible and impermissible reasons (under the Act) for
discharging an employee, the General Counsel must es-
tablish a prima facie case that the employee's protected
conduct was a motivating factor. The employer then has
the burden of persuasion, or of going forward, and must
demonstrate that it would have discharged the employee
even in the absence of such protected conduct. The Gen-
eral Counsel retains the general burden of proof on the
whole case. The extent of the employer's burden was
clarified in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983), the employer must show that it
acted for the claimed lawful motive by a preponderance
of the evidence. See Roure Bertrand Dupont, Inc., 271
NLRB 443 (1984), and the cases cited.
Brewster conceded that he had been given a ticket on
7 July for speeding at 69 miles per hour in a 55-mile-per-
hour zone, at a time when his transport was fully loaded
with flammable liquid propane. He pleaded guilty and
paid the fine in court on 7 August.
Russell explained the nature of the hazard. The trans-
port of tankers carry 9000 gallons of liquid propane, a
flammable substance . They cost $130,000 a piece. An ac-
cident can cause one to rupture. Such an accident in the
Catskills produced a fireball that severely damaged the
town in which it occurred. Vital arteries, such as the
George Washington Bridge, can be blocked for extended
periods of time by disabled tankers. Flip over of a pro-
pane tanker could result in the release of liquid propane,
which in gaseous form occupies a volume 270 times
greater than its liquid form. It is combustible when
mixed with air. Nine thousand gallons of liquid propane
translate into 328,000 cubic feet of flammable vapor.
Russell testified that three employees (Smith, Gunter,
and Riddle) whose trucks overturned were discharged
for unsafe operation. These incidents led to the composi-
tion of the interoffice memorandum dated 20 January
1987 on the subject of hiring prerequisites and proce-
dures for transport drivers. The procedures outlined for
ensuring the hiring of experienced and competent drivers
are as follows: before a driver is hired, an abstract of his
operating record is obtained to determine if he meets the
Company's standards; references are verified; and a 2-
day minimum training period is prescribed for all drivers
before they are put to work, with emphasis on the haz-
ards of operating a transport with a liquid load. Nicolette
testified that the fleet director in Farmingdale (the posi-
tion currently occupied by Gerard) reviews the abstracts
of the records of all drivers once a year.
The Company complies with the U.S. Department of
Transportation (DOT) regulations governing safety and
drivers' hours and also complies with New York City
curfew regulations. The DOT's Bureau of Highway
Safety audits Respondents to ensure compliance with
DOT regulations. All traffic citations received by drivers
throughout the United States are required to be forward-
ed to Farmingdale. Of the 200 traffic tickets received
there since 1982, only 2 were for exceeding fixed speed
limits. The General Counsel scoffed at Russell's testimo-
ny to that effect, but I do not share his skepticism. Rec-
ognition of the hazards involved in this type of work ex-
plains the small number of tickets received at Farming-
dale that involve moving violations and the relatively
few discharges arising from improper operation of vehi-
cles, for Respondents' drivers must be assumed to be of
average intelligence and emotional stability. Many tickets
were for equipment violations, which Russell stated were
considered serious, but not as serious as moving viola-
tions. The Company has no written rule that requires
that a driver automatically be discharged for receiving a
speeding ticket, but Russell noted that Government regu-
lations require drivers to obey local laws in the operation
of their vehicles.
The drivers sign for receipt of a copy of the Federal
safety regulations. The Company also distributes a safety
manual to the branches which, among other things, re-
quires drivers to report citations for traffic violations. Ni-
colette conceded, however, that the safety manual is not
distributed to the drivers; instead, the branch managers
use them as discussion guides for their monthly safety
meetings.
Russell testified that the Company's concern with
safety is rooted in its basic desire to remove unsafe con-
ditions for drivers and the public, to avoid property
damage, and to avoid bad publicity for the Company re-
sulting from flipovers and resulting traffic dams. He as-
serted that the Company does not discharge drivers for
every ticket that they receive, but for situations in which
they are personally involved by their own actions.
Equipment violations are not regarded as causes for dis-
charges; the Company accepts responsibility for them.
Company policy is to discharge drivers for speeding,
unsafe speed, flipping over tractor-trailers, and other
unsafe personal conduct
Russell testified that when he received the notice of
the issuance of the ticket to Brewster, he advised Vogel
of it and Vogel made it clear that violation of such im-
portant company policy aganist speeding was not to be
tolerated. Accordingly, he telephoned Nicolette and in-
structed him to discharge Brewster, and the following
week, in conformity with Brewster's request, issued a
SYNERGY GAS CORP
letter stating the reasons for the discharge Vogel con-
tributed to the text of the letter to the extent of suggest-
ing that the safety manual be consulted and cited in the
letter
b The rebuttal
Brewster disputed the Company's asserted emphasis on
safety He testified that the only training he received
before starting consisted of accompanying a transport
driver on a trip to Philadelphia , primarily for the pur-
pose of acquainting himself with the route He claimed
testing procedures for new drivers were faulty and that
the propane safety test was not administered to him by
Nicolette until 15 July He conceded , however , that Hall
had tested him on 20 May , in a test where he indicated
his awareness that he was not supposed to exceed posted
speed limits He claimed never to have been shown or
given a copy of the Synergy Gas Corporation Safety
Manual referred to in the discharge letter though he had,
on several occasions , asked whether such a company
policy or procedure existed He asserted that a cynical
attitude prevailed in the shop and that the drivers joked
about tickets they received (apparently tickets for New
York City curfew violations) Most importantly, he ac-
cused Nicolette of giving him a runaround when he
noted safety violations on his pretnp reports and when
he requested repairs to his vehicle's heater, lights, front-
end, and jumped wires
However, the evidence shows that adherence to safety
requirements was not as loose as Brewster contended He
conceded that he was given a new truck, and consider-
ing the short period of his employment , it is obvious that
he did not have to wait too long for his complaints to be
heeded Nicolette testified that he offered Brewster a
copy of the redbook when he took the test, but Brewster
declined it because he said he already had one That is
credible , for Brewster came on as a driver with 12 years'
good prior experience and he presumably would have, or
say he had , a copy of it and Nicolette would have no
reason to doubt him Brewster did not contradict Nico-
lettes' testimony on that point
It appears that Respondents were far less casual than
Brewster contended despite lapses in compliance with or
enforcement of various controls over the drivers stipulat-
ed by various governmental regulations Respondents
sought to excuse their failures in that regard on the basis
of a change in management at the South Plainfield
branch and the failure of Hall 's predecessor to comply
with paperwork requirements Hall, who started as
branch manager in November 1986 , pleaded that subse-
quent omissions on his part were due to the fact that he
had been in the job only 11 months and was uncertain of
many of the procedures involving compliance with Gov-
ernment regulations covering drivers However, at the
time of the events in issue , he had already been on the
job for 8 or 9 months Granting that Respondents can be
faulted , however, their failure to complete paperwork,
by not keeping required documentation on file and in the
driver's qualification files, still does not necessarily
negate the assertion that Brewster was fired for failure to
comply with regulations , nor does it even tend to negate
it, especially since the proof shows that the requisite
1105
checks regarding Brewster 's background were made at
the time he was hired and that, regardless of deficiencies
in paperwork, the essentials of a safety program were en-
forced
Brewster also contended that if Russell had not re-
ceived notice of the ticket, he would not have been fired
at all Brewster testified that when he came in on
Monday morning , 20 July , to see Nicolette and Hall,
they asked him why he let the notification go to Long
Island, they said they could have handled it "internally"
if the notice had come to South Plainfield (Nicolette, in
his own testimony , mentioned a discussion he had with
Brewster in the shop on the afternoon of 16 July in
which the fact that the notice went to Farmingdale was
discussed) It had gone to Long Island because the Com-
pany's address was on the registration , and Brewster ex-
plained that to them Brewster 's testimony has the ring
of truth to it, but I assign to it an altogether different sig-
nificance than that attached to it by the General Counsel
To me, it appears obvious that the three men were all in
agreement that the arrival at company headquarters of
the news of Brewster 's ticket for speeding spelled serious
trouble for him Their attitude leaves no doubt that
Brewster 's infraction ran counter to an important compa-
ny policy that was vigorously enforced This interpreta-
tion receives added support from Nicolette's uncontro-
verted testimony that, when asked about it, Brewster ac-
knowledged receipt of the ticket, but claimed that he
was not required to turn it over or let them know about
it The fact that Brewster made the reporting require-
ment a point of contention shows the existence of a con-
sistent position by management and its view, and Brew-
ster's awareness of the view, that such violations were
serious Brewster even thought the ticket was serious
enough to warrant retaining legal counsel at his own ex-
pense
The General Counsel's case depended heavily on sus-
picion in lieu of evidence in its attack on Russell 's credi-
bility on the subject of the contents of his discussions
with Vogel after he received Brewster 's ticket in the
mail Russell 's testimony is characterized as incredible
His cross-examination was designed to suggest that a
man like Vogel , concerned with the operations of a na-
tionwide organization, was unlikely to busy himself with
a traffic ticket issued to 1 of 1200 drivers on the payroll
and that the discussions must, instead , have involved
more important things, such as the Union 's petition drive
and Brewster's participation in it
The only persons who would know are, of course,
Russell and Vogel, and possibly Shientag Vogel and
Shientag were not called as witnesses by either side
Unquestionably, the story presented by Russell has
some peculiar facets to it Brewster 's speeding ticket and
the Union's petition for an election engaged the attention
of top management simultaneously , but the way Russell
tells it, the traffic ticket caused more excitement at head-
quarters than the union petition When Russell brought
the union petition back to Farmingdale and gave it to
Shientag, Shientag put it on his desk without opening it
and without comment Russell testified he did not have
any conversation with Jon Vogel about it The exact re-
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
verse obtained at South Plainfield. While Russell was
there he asked Nicolette and Hall what "might have led
to this" and prodded them for answers. They attempted
to figure out whether the long-haul or short-haul drivers
were the focus of the union drive. The petition related to
both companies, and Russell testified, "I asked them if
they knew of any problems we had at the plant and be-
cause the things were combined we couldn't identify it."
In stark contrast to the silence that Russell says greet-
ed receipt of the petition, at headquarters, the speeding
ticket caused a great stir. Russell reported it to Jon
Vogel, and had several conversations with Vogel about
it in the course of which a decision was made to dis-
charge Brewster. He quoted Vogel as saying "that he
didn't want anybody driving company vehicles and
speeding in them, and particularly since this was a trans-
port the danger was magnified substantially." Russell as-
serted that Brewster's failure to turn in the ticket magni-
fied the incident, and that it was unusual because most
drivers turn in the tickets whether they are for moving
or equipment violations.
Russell seemed to amplify Vogel's role in the dis-
charge every time he was asked to repeat the conversa-
tions. When it became necessary to write a discharge
letter, it was Vogel who suggested that Russell "check
and see if there was anything in the safety manual that
would be involved here " The third paragraph of the
letter was the result of Russell's research into the safety
manual He quoted Vogel as saying, on being shown the
notice of the ticket, "John, you know, you're the Chair-
man of the Safety Committee and I don't think you
would endorse that either and I said, you're correct "
Pondering Russell's testimony, it is unclear to me why
the safety manual would have to be researched when a
solid ground for discharge already supposedly existed, or
why top executives stood making statesmanlike speeches.
It is unclear why the Brewster incident was handled as if
such cases had never arisen before, and without confer-
ence with either Shientag or the paralegal who normally
handled such matters in the Farmingdale office. It is es-
pecially unclear when the Respondents' defense is that
Brewster's discharge was in conformity with established
company policy and precedent, and when it is asserted
that tickets came in from all over the country. (I note,
but am not particularly disturbed by, the discrepancies in
the various versions Russell gave of the "complete" con-
versations with Vogel to which he was repeatedly asked
to testify, or by the discrepancy between him and Nico-
lette about the time of day of his telephone direction to
Nicolette to discharge Brewster. I can overlook a wit-
ness' omission of parts of a conversation under the pres-
sure of examination )
In weighing all the evidence in the record, however,
one comes to the realization that Russell's testimony fur-
nished a credible version of what occurred. I accept it
on the basis of his demeanor as a witness, the basic cohe-
sion inherent in his testimony, the fact that doubts about
it exist only doubts and do not exist as rebutting evi-
dence, and the fact that there is no rebutting evidence.
Reflection shows that Russell's story is, in fact, highly
plausible. Under the Company's normal procedures, driv-
ers who receive tickets hand them in at the branches,
which forward them to a paralegal at the central office
in Framingdale, New York Brewster's ticket came to
Russell's attention accidentally and his first inquiry was
whether the branch or area managers had been apprised
of it. That is what he could reasonably have been expect-
ed to do. Since firing an employee is a serious matter in
most business concerns, it is plausible that Russell,
having become involved in Brewster's situation and
being the officer responsible for safety matters, would
pursue it personally and might discuss it with Vogel.
Russell testified that he spends little time in Vogel's
office That raises a question about why he would elect
to do so on a matter such as Brewster's ticket. The ex-
planation, of course, is the seriousness of Brewster's of-
fense and its consequences. Yet, even if the ticket is
treated as a minor matter, I do not find it incredible as
does counsel for the General Counsel, that strict logic
and efficiency did not govern Russell's conduct on that
morning He could have turned it over to the paralegal
and need not have mentioned it to Vogel, but the exist-
ence of alternative courses of action does not require
that his testimony be discredited. The state of the evi-
dence, however, is that issuance of speeding tickets to
drivers of propane tankers was an infrequent occurrence
and not one to be anticipated in the course of normal op-
erations, and that it was regarded as a serious matter.
Russell's testimony about his talks with Vogel is unrebut-
ted and I credit it. The gist of Russell's testimony is that
the Company did not want drivers exceeding speed
limits while driving their $130,000 tank trucks fully
loaded with liquid propane, and Brewster did it, got a
ticket for it, and did not report it, so they fired him. That
is not hard to believe
Further, I note that any link between the Vogel-Rus-
sell discussions and other events is purely speculative.
There is no evidence that at that time they were aware
that Brewster had been working in support of the Union
or that they discussed his activities. The argument of the
General Counsel is, essentially, an invitation to speculate
that Russell and Vogel could have discussed Brewster
from the standpoint of union activity or in connection
with the union petition because they could have known
about it from other management personnel who could
have told them because they had sons who could have
known about it and could have reported it to their par-
ents. We are drowning in "could's" without a scintilla of
evidence warranting an inference that any of these things
actually happened.
CONCLUSIONS OF LAW
I Synergy Gas Corporation and Propane Transporta-
tion Corporation constitute a single employer for juris-
dictional purposes and are now, and have been at all
times material, engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Local 863, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America,
AFL-CIO is now and has been at all times material a
labor organization within the meaning of Section 2(5) of
the Act
SYNERGY GAS CORP 1107
3 Respondents have not engaged in unfair labor prac-
tices within the meaning of the Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The complaint is dismissed
2 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended Board and all objections to them shall be deemed waived for all pur-
Order shall , as provided in Sec 102 48 of the Rules , be adopted by the poses