The Ohio Fuel Gas Co.

National Labor Relations Board - Board Decisions

Dec 17, 1940

28 N.L.R.B. 667 (N.L.R.B. 1940)

In. the Matter of THE OHIO FUEL GAS COMPANY, A CORPORATION and
DISTRlrlr # 50, UNITED MINE WORKERS OF AMERICA, AFFILIATED
WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS
Case No. C-1691.Decided December 17, 1940
Jurisdiction : gas utility industry.
Unfair Labor Practices
In' General
Anti-union activities constitute unfair labor practices nothwithstanding
the fact that no labor organization of the employees is in existence at
the time.
Activities of an employer that are calculated to interfere with employees
in the exercise of their rights guaranteed in the Act constitute unfair
labor practices without regard to the fact that such activities may, have
failed in their purpose or result.
Interference, Restraint and Coercion: anti-union statements; surveillance of,
union meeting. '
Discharge for engaging in concerted activities and manifesting an in-
terest in forming a labor organization as concurrent violation of Section
8 (1) and 8 (3).
Discrimination
Discharge of an employee because of his leadership in concerted activities
,and his manifest interest in forming a labor organization constitutes a
violation of Section 8 (3).1
Remedial Orders : reinstatement and back pay awarded.
Mr. Max W. Johnstone, for the Board.
Eagleson d Laylin, by Mr. E. H. Laylin, of Columbus, Ohio, and
Weldon di Huston, by Mr. W. M. Weldon, of Mansfield, Ohio, for
the respondent.
Mr. David H. Karasick, of counsel to the Board.
DECISION'
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by ' District ,# 50,
United Mine Workers of America, affiliated with the Congress of
Industrial Organizations,, herein called the Union,' the National
:Local Union No. 12147 of District #50, United Mine Workers of America is a local
union chartered by District #50, United Mine Workers of America. Both the local and
the parent organization are hereinafter referred to as the Union.
28 N. L. R. B., No. 100.
667
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Board, herein called the Board, by the Regional
Director for the Eighth Region (Cleveland, Ohio), issued, its com-
plaint, dated May 8, 1940, and its amended complaint, dated May 21,
1940, against The Ohio Fuel Gas Company, herein called the respond-,
ent, alleging that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce, within the meaning
of Section 8 (1) and, (3) and Section 2' (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called, the Act. Copies of
the amended complaint-and notice of hearing were duly served upon
the respondent and the Union.
In respect to the unfair labor practices, the amended complaint
alleged in substance: (1) that on or about March 5, 1940, the re-
spondent discharged Alva L. Crunkilton because he was a member of
and active on behalf of the Union; and (2) that by said act, and,
during February and March 1940, by surveillance of the Union, by
interrogating employees concerning the Union, and by advising its
employees that it did not wish them to join the Union, the respond-
ent interfered with, restrained, and coerced its employees in-the
.exercise of the rights guaranteed by Section 7 of the Act.
On June 2, 1940, the respondent filed its answer in which it denied
that it is engaged in interstate commerce and, denied the unfair.
labor practices alleged in the amended complaint.
Pursuant to notice, a hearing was held on June 3 and 4, 1940,
at Mansfield, Ohio, before Henry J. Kent, the Trial Examiner duly
designated by the Board. The Board and the respondent were rep-
resented by counsel and participated in the hearing. Full opportu-
nity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties.
At the beginning of the hearing, counsel for the respondent moved
that the complaint be dismissed on the ground that it failed to show
that the alleged unfair labor practices affected commerce within the
meaning of the Act. The motion was denied without prejudice to
the respondent's right later to renew it. At the close of the Board's
case, counsel for the Board moved to strike paragraph 9 (d) of the
amended complaint which alleged that, the respondent had made
derogatory remarks concerning the Union. He also moved to amend
the, pleadings to conform to the proof. Both motions were granted.
At the close of the Board's case the respondent moved that the entire
complaint be dismissed. This motion was denied, without prejudice
to renewal, and was renewed by the respondent at the close of the,
hearing. Ruling .thereon was reserved, and the motion' was later
denied by the Trial Examiner in his Intermediate Report. During
the course of the hearing, the, Trial Examiner made various other
rulings on motions and on objections to the admission of evidence.
THE OHIO FUEL GAS COMPANY 669
The Board has reviewed. all the rulings of the Trial Examiner and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
After the' hearing, the respondent filed a brief with the Trial
Examiner. On September 30, 1940,-the Trial Examiner issued his
Intermediate Report, copies of which were duly served upon the
parties, in which he found, that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce within
the meaning -of Section 8 (1) and (3) and Section 2 (6) and (7)
of the Act. He recommended that the respondent cease and desist
from engaging iii-such unfair labor practices, and, by way of affirma-
tive action, reinstate, with back pay, Alva L. Crunkilton.
Thereafter, the respondent filed a brief and exceptions to the Inter-
mediate Report. Pursuant to notice, a hearing for the purpose of
oral argument was held on November 12, 1940, before the Board in
Washington, D, C. The respondent was represented by counsel and
presented oral argument.' The Board, has considered the respondent's
exceptions to the Intermediate Report, and its brief in support
thereof, and, in so far as the exceptions are inconsistent with the
findings, conclusions, and order set forth below, finds them to be
without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Ohio Fuel Gas Company is an Ohio corporation engaged in
the production, purchase, transmission, distribution, and sale of
natural gas in the State of Ohio, and in the purchase, distribution,
and sale of artificial or manufactured gas in the city of Toledo, Ohio.
It is a wholly owned and controlled subsidiary of the Columbia Gas
and Electric, Corporation., The parent or holding company controls
the so-called Columbia-System, comprising about 30 separate wholly
owned and controlled subsidiary corporations which, among other
things, carry on commerce in natural gas in New York, Pennsylvania,
Ohio, West Virginia, Indiana, Kentucky, and Michigan. The nat-
ural,gas transmission and distribution lines of the Columbia System
are interconnected, and the transmission and -distribution system of
the respondent is an integrated part thereof. The parent company
has provided some of the necessary financing for the development of
the 'respondent's properties. The respondent, in its answer to the
complaint admits that it is a unit in an integrated and coordinated
public utility system which serves over 1,100,000 consumers in an
area inhabited by approximately 5,000,000 persons.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent's properties are operated as an integrated system.
The entire natural gas transmission and distribution system of the
respondent is interconnected. Gas enters the system from pipe lines
from outside of the State of Ohio, from the respondent's own wells
in Ohio, and from the'wells of other producers in Ohio from which
the respondent purchases gas. Gas from all three sources is inter-
mingled throughout the transmission and distribution system. Gas
is admitted into the system by opening valves located at the wells
or at various places on the pipe lines. Gas flows through the pipe
lines in part under its own pressure. This pressure is augmented by
compressor stations located along the pipe lines. The Pavonia com-
pressor station, located at Pavonia, Ohio, and at which the alleged
unfair labor practices occurred, is one of the major compressor stations
in the respondent's system. The Pavonia station serves principally
the marketing areas in and around Toledo, Sandusky, and Lorain,
Ohio. Except in the warm months of summer, operation of the sta-
tion is necessary to supply this area. Gas originating in other States
is commingled with gas,- obtained from local wells which passes
through the Pavonia station. While Pavonia serves only the area
above described, the respondent's system is so operated that pressure
applied at one compressor station will augment the pressure through-
out the system.
The transmission and distribution of gas through the network of
pipe lines which connect the producing and purchasing areas with
the marketing areas are controlled by the dispatcher at the respond-
ent's main office in Columbus. The dispatcher receives weather re-
ports, reports of line pressures, and other data indicating the trend
of demands in the various markets. He considers this data in the
light of his knowledge of the location of every well, both contract
and company owned, the classification of the respondent's wells, the
requirements and the amount of gas available under each purchase
contract, the location of the point of purchase under each, and all
other facts bearing upon the amount and location of the supply of gas.
As the demand conditions vary from hour to hour and place to place,
the dispatcher meets those demands by telephoning instructions to
the field and to the compressor stations in pursuance of which instruc-
tions, valves are turned, compressor station operations are adjusted,
and gas is directed from points of purchase or production where it
is available to the points of increasing demand.
The integrated character ofthe respondent's business is manifested
in other ways. First, the respondent stipulated that the impairment
of production facilities on one part of its system would have an effect
on all market areas and would not be limited only to the market area
adjoining the impaired facilities. Second, the respondent has a central
`THE OHIO FUEL GAS COMPANY 671
labor policy covering wages, hours, and working conditions, emanating
from its main office in Columbus, which is effective throughout its sys-
tem. Provision is made under this policy for some classes of em-
ployees to transfer from one district to another in the respondent's
system. The respondent further stipulated that it would not be
possible to maintain its operations at the Pavonia compressor station
without the presence and assistance of its employees below the rank
of supervisory employees.
During the year 1936, which was a typical year, the respondent
handled 55,947,028 MCF (thousand cubic feet) of gas. Approxi-
mately 34 per cent of this gas was produced in Ohio by the respondent.
About 29 per cent was purchased in Ohio from other producers. The
remainder, amounting to approximately 36 per cent, was purchased
by the respondent at State lines from gas produced in West Virginia
and Indiana and piped into Ohio for resale. Also, the respondent
admits in its answer that in 1939 it imported from other States ap-
proximately 45 per cent of the gas available for distribution in Ohio.
For the first 4 months of 1940, over 40 per cent of the natural gas
distributed was derived from sources outside the State. In the con-
duct 'of its business the respondent purchases pipes, meters, and other
kindred products. During the month of June 1938, which was a
typical month, about 22 per cent of such products purchased by the
respondent, valued at $23,000, originated outside of Ohio. During
the first 3 months of 1937, about 34 per cent of such products, valued
at $106,700, were imported by the respondent from outside of Ohio.
The manufactured gas distributed by the respondent in Toledo is
obtained almost entirely by purchase from the Interlake Iron Cor-
poration in Ohio. Some small amounts of reformed natural gas are
produced by the respondent at its stand-by plant in Toledo. In 1936
this plant was operated 16 days and in 1937, 11 days. In carrying
on such operations in 1936 the respondent used 1050 tons of coal mined
in Kentucky and West Virginia and 100 tons of coke produced in
Pennsylvania. For the same purposes in 1937 it obtained from States
other than Ohio, 1500 tons of coal and 100 tons of coke. In addition,
in connection with the operation of the purification plant for the re-'
moval of sulphur from the manufactured gas which it purchased, the
respondent brought into Ohio 864 tons of "material" in 1936, and 648
tons in 1937.
In 1936, and customarily, the respondent distributed approximately
99.2 per cent of the gas it sold within the State of Ohio. About 8110
of 1 per cent of the gas was distributed in Indiana, Michigan, and West
Virginia. However, a large part of the latter amount consisted of
emergency sales, non-recurrent in character. In 1939, all gas sold
was delivered within the State of Ohio.
672, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent's customers included domestic, industrial, com-
mercial, and wholesale purchasers. The respondent sells natural gas
to instrumentalities of interstate commerce such as railroads, motor-
vehicle transportation companies, radio-broadcasting stations, tele-
phone companies, and telegraph companies, and the like, for domestic
or commercial purposes. In 1936 the respondent sold 8,343,325 MCF
of gas to industrial users for $4,501,761.98. Many of these industrial
users market their products in interstate commerce.2
H. THE ORGANIZATIONS INVOLVED
District #50, United Mine Workers of America, is a labor organiza-
tion, affiliated with the Congress of Industrial Organizations. Local
No. 12147 is a labor organization, affiliated with the Congress of Indus-
trial Organizations, admitting to its membership, production, main-
tenance, and clerical workers employed in field headquarters by con-
cerns engaged in the transmission and compression of natural gas.
Local No. 12147 received its charter from District #50, United Mine
Workers of America, on March 8, 1940.
III. THE UNFAIR LABOR PRACTICES
A. Inter f erence, restraint, and coercion
In the early part of February 1940 some of the respondent's em-
ployees, led by Alva L. Crunkilton, decided that membership in a
union might be advantageous to them. Accordingly, Crunkilton
sought advice in the matter from Joe Scanlon, a representative of
Steel Workers Organizing Committee in Mansfield, Ohio. Crunkilton
told Scanlon that he especially wished to get in touch with the person
who helped negotiate the collective agreement between the Toledo
Gas `'Forks in Toledo, Ohio, and the representative of its employees.
Pursuant to this request, Scanlon called one Silbey in Columbus,
Ohio, who in- turn talked by telephone with Joseph Appelbaum, a
field representative of District #50, United Mine Workers of
America, and the latter agreed to come to Mansfield on February 15,
1940, to assist the respondent's employees in their organizing efforts.
Upon his arrival, a meeting of the respondent's employees was held
on February 15 in the Southern Hotel in Mansfield. At this meeting,
which was attended by Appelbaum, Crunkilton, and about 10 or 12
other employees of the respondent, the employees discussed the ques-
tion of union organization with Appelbaum, and decided fo hold
2 For a more detailed analysis of industrial users of gas furnished by the respondent, see
Matter of The Ohio Fuel Gas Company, a corporation and International Association of Oil
Field, Gas Well and Refinery Workers of America, 25 N. L . R. B. 519.
THE OHIO FUEL GAS COMPANY - 673
a second organizational meeting on March 2, 1940. This meeting was
held at the scheduled time at the Ideal Tourist Camp, located on a
public highway between Mansfield and Ashland, Ohio. The meeting
was held in the evening, and at least 25 of the respondent's employees
attended. -Crunkilton acted as temporary chairman. Officers were
elected and an application for a charter executed. The application
was thereafter transmitted to District #50, United Mine Workers of
America, which in turn issued a charter to the group on March 8,
1940, establishing Local Union No. 12147. Membership in this local
is not confined to employees of the respondent.
On February 16, 1940, the day following the first organizational
meeting referred to above, John Baxter, division' superintendent of
the respondent, and Howard Hyatt, chief engineer at the Pavonia
plant, held a general meeting of all employees in the Pavonia plant.
This was the first meeting of its kind to be held in 6 or 7 months. At
this meeting Baxter informed the employees that the respondent was
establishing new working schedules for the various employees. ' Some
of the employees then inquired whether or not the new schedules
would result in the lay-off of any employee. Hyatt replied that there
was plenty of work for all employees and that he "could not see
where it [the new schedule] would eliminate any man." L. R. Hale,
an engineer, testified that Baxter declared at this time that the new
schedule would create another j ob 'at a wage rate of $160 a month.
Walter King, an engineer, and Crunkilton then asked what steps
could be taken 'to secure wage. increases for operators. In reply,'
Baxter stated that the respondent could not grant increases at that
time, that he had urged the respondent's officials to do so on numer-
ous occasions, but had been refused. Crunkilton then said, "Well,
maybe a good labor organization would help you out on that." Ac-
cording to the testimony of Crunkilton, which is supported by the
testimony of King and several other operators then present, Baxter
replied, "Well, the,union didn't help the boys any at Toledo, they
lost 8 or 9 days; and it will probably take them a couple. of years to
make it up." `
Neither Baxter nor Hyatt denied that Baxter made the statement
attributed to him by Crunkilton and the other employees' present
at the February 16 meeting,- and Baxter's own version of his state-
ment corroborates the above-mentioned testimony. Baxter testified
in this regard that he "advised the boys if they were thinking about
forming a union that they would better go to Toledo or get in touch
with some of the -boys who had been in the union at Toledo and be
advised by. them whether or not they had benefited by the recent
trouble with the union they had up there."
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the cumulative effect of the testimony of the employees
present at the meeting, together with the corroborative nature of
Baxter's own version of the incident, we find, as did the Trial Exam-
iner, who saw and heard the witnesses, that Baxter made the state-
ment concerning the Toledo union attributed to him by Crunkilton.3
As stated above, on March 2, 1940, a number of the respondent's
employees held a second organizational meeting at a tourist camp
between Mansfield and Ashland, Ohio. Hearing of the proposed
meeting from his daughter, the wife of an employee, Baxter requested
the sheriff of Ashland County, Ohio, to secure for him the license
numbers of all automobiles parked at the tourist camp during the
meeting. Pursuant to that request, the sheriff or one of his assistants
made a list of the license numbers of such automobiles and turned it
over to Baxter. Baxter secured the names of the owners of the auto-
mobiles from the Bureau of Motor Vehicles in Columbus, Ohio.
Walter Briggs, an employee, testified that on the morning of March
5, 1940, Baxter approached him and two other employees at the
Pavonia plant and inquired of each of them whether or not they
were members of the Union. Briggs further testified that she replied
that he was not a union member, and that Baxter then said:
I have not got the right to tell any man whether he shall belong
to the Union or not, but I want them to understand that the
Ohio Fuel and Gas Company is paying them.
Baxter denied this testimony and testified further that he was in
Columbus, Ohio, on the morning in question and did not return to
the Pavonia plant until sometime in the afternoon of that day. In
this he was corroborated by several other supervisory employees who
testified that they saw Baxter in Columbus on the morning of March
5. Also, neither of the other two employees allegedly present during
this conversation were called by the Board to corroborate Briggs. In
view of this fact, together with the testimony indicating that Baxter
was in Columbus at the time in question, the Trial Examiner, who
had an opportunity to hear and observe the witnesses, found that
Baxter did not make the statement attributed to him by Briggs. We
so find.
From the foregoing, it is plain that the respondent, through Baxter,
its chief supervisory employee at the Pavonia plant, engaged in sur-
veillance of the union meeting on March 2, and otherwise indicated
its hostility toward the Union by making the statement to the em-
ployees at the meeting on February 16, as noted above.. Coming
8 Even if we were to accept Baxter's own version of his statement , it would nevertheless
in itself constitute interference with self-organization and discouragement of membership
in the Union.
11
THE OHIO FUEL GAS COMPANY 675
at a time when its employees were making their first efforts at self-
organization, the above activity on the part of the respondent tended
to discourage union membership and to hinder self-organization
among the employees. Efforts on the part of an employer to ascertain
the identity of union ' members are particularly effective in deterring
union membership when, as is set forth below,4 the employer dis-
charges the employee whom the record shows to be the leading spirit
in the Union.
The respondent contends in its brief: (1) that the acts with which
it is charged did not constitute unfair labor practices because they
occurred prior to the time a labor organization of its employees came
into existence with the issuance of a charter to Local 12147 on March
8; (2) that the statement of Baxter made at the meeting of Febru-
ary 16 and the surveillance of the union meeting on March 2 did
.not intimidate the employees, and therefore cannot be considered
as violations of the Act; and (3) that the statement of Baxter
at the meeting on February 16 was required as a reply to a question
presented by Crunkilton, and Baxter's answer was merely an expres-
sion of "personal opinion as to a concrete matter."
The first contention of the respondent assumes that the proscrip-
tions of the Act are rendered inoperative in the absence of an exist-
ing labor organization to which its employees belong or on whose
behalf they engage in activities. Neither the purposes nor provisions
of the Act justify such a construction. Anti-union activities on the
part of an employer may and do constitute unfair labor practices
-and interfere with, restiain, and coerce employees in their right to
self-organization irrespective of the fact that a labor organization
does not presently exist to which the employees may belong or in
whose affairs they may actively participate.,' In fact, self -organiza-
tion is most-effectively discouraged in the period before a union is
well started and is particularly successful where, as here, the leader
who tries to form the union is discharged. We find this contention
of the respondent to be without merit.
The second contention of the respondent is predicated on the
theory that the conduct of an employer must be specifically shown
to have had the effect of intimidating its employees before such
conduct can be regarded as an unfair labor practice within the
meaning of the Act. We have previously had occasion to pass upon
this precise question and have held that activities of an employer
I See Section III B, infra.
5 See Matter of Stehli and Co., Inc and Textile Workers Union of Lancaster, Pennsyl-
vania and Vicinity, Local #133, 11 N. L. R. B. 1397, 1451; Matter of Indianapolis Power &
Light Company and Utility Workers Organizing Committee, Local 120, affiliated with the
- Congress for Industrial Organizations, et at, 25 N. L. R. B. 193.
413597-42-vol 28-44
0
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that are calculated to interfere with employees in the exercise of
their rights guaranteed in the Act constitute unfair labor practices
without regard to the fact that such activities may have failed in
their purpose or result." We adhere, to that principle in this case.?
We also find this contention of the respondent to be without merit.
The third contention of the respondent, that Baxter's statement
concerning the union at Toledo was made in reply to a question pre.
sented by Crunkilton and was merely an expression of "personal
opinion as to a concrete matter," is based upon an interpretation of
the facts in this case with which we find ourselves unable to agree.
Assuming without deciding that an expression of personal opinion by
a supervisory official of an employer concerning the organizational
efforts or interests of the employees may not constitute an unfair
labor practice, we find that the statement of Baxter in this case did
not fall within that category. This was not the situation of an em-
ployee seeking the advice of his employer. Crunkilton's statement
was not framed as a question and did not-require an answer; it was
a forthright statement of opinion, an expression of belief on the
part of the speaker which made his position clear and called for
nothing by way of explanation. Baxter's statement with respect to
the union at Toledo was a gratuitous remark. Being made in reply
to a concrete suggestion by an employee that a union might be help-
ful to the employees in obtaining concessions from the respondent,
the statement of Baxter, as' division superintendent and highest
ranking ' representative of the management in that area of its opera-
tions, was reasonably calculated to have, and did have, the effect of -
9 This principle has received court affirmation See Brown Paper Mill Co Inc v.
N L R. B , 108 F (2d) 867 (C C. A. 5), enf'g 12 N. L. R. B 60, cent denied 310 U. S.
651 ; Bethlehem Shipbuilding Corporation, Ltd, et al v. National Labor Relations Board,
114 F. (2d) 930, October 8, 1940 (C. C. A. 1). See also Matter of Donnelly Garment Coin-
pany and International Ladies' Garment Workers' Union and Donnelly Garment Workers
Union, party to the contract, 21 N L R B 164; New Era Die Company and Inter-
-national Association of Machinists, Lodge 243 (A. F. of L.), 19 N L. R B 227; Matter
of Yale & Towne Manufacturing Company and United Electrical & Radio Workers of
America, Local No. 227, C. I. 0., 10 N. L. R B. 1321, enf'd as mod. In other respects 114
V. (2d) 376 (C. C. A. 2) ; Matter of Consumers, Power Company, a corporation and Local
No. 740, United Electrical, Radio it Machine Workers of America, 9 N. L. R. B. 701, enf'd
Consumers Power Company, a corporation v. National Labor Relations Board, 113 F. (2d)
38 (C C. A. 6) ; Matter of Botany Worsted Mills and Textile Workers Organizing Com-
mittee, 4 N. L. R. B 292, enf'd as mod. on other grounds and remanded for further
determination with respect to other issues, 106 F. (2d) 263 (C C A. 3).
7In support of this contention the respondent introduced in evidence a letter signed by
a number of the employees and addressed to the respondent, which, in substance, stated
that the employees were withdrawing from the Union because it had engaged in unauthor-
ized action by requesting a bargaining conference with the respondent. Some of the
employees testified, upon being called by counsel for the Board, that they signed the letter
for fear of losing their jobs ; other employees, testifying on behalf of the respondent, stated
that they signed without fear or compulsion Although normally we regard such evidence
as inadmissible, it is unnecessaiv for us to make any ruling in that regard in the present
case. Instead, for the reasons stated above in passing upon this contention of the respond-
ent, we disregard the letter and the testimony adduced in connection with it as not
material to the issues in this proceeding.
THE OHIO FUEL GAS COMPANY 1 677
discouraging any attempt on the part of the employees to establish
a labor organization for the purpose of dealing with the respondent
concerning such concessions. We likewise find this contention of the
respondent to be without merit.'
We find that by Baxter's statement made at the general meeting
of the employees on February 16, the day following the first meeting
of the employees in an attempt to organize, and by the surveillance,
upon Baxter's orders, of the meeting of the employees on March 2,
the respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed them, in Section 7
of the Act.
B. The discharge of Crunkilton
Alva L. Crunkilton was first employed by the respondent in Sep-
tember 1933, and thereafter continued to work for the respondent
until his discharge on March 5, 1940. During most of his employ-
ment, Crunkilton worked as an operator in the Pavonia plant.
The record shows that Crunkilton took the lead in the activities
culminating in the formation of the Union among the respondent's
employees. As is set forth above, Crunkilton contacted a represent-
ative of District #+50, United Mine, Workers of America, and ar-
ranged for the first organizational meeting of the Union. In addi-
tion, he attended the subsequent meeting of the Union, at which he
presided as temporary chairman, and was active in soliciting union
membership among the other employees. Crunkilton joined the
Union on either February 29 or March 1, 1940.
On February 29, 1940, shortly after the first union meeting, Baxter
and Hyatt called Crunkilton and four other Pavonia operators into
the auxiliary building, of the plant. At this meeting Baxter in-
formed the five men that the respondent was going to grant them
a wage increase of $5.00 a month, and then inquired whether they
would be "satisfied." All of the other operators indicated that they
were satisfied. Crunkilton, however, replied that he woud be "satis-
fied for a while." Angered by Crunkilton's failure to indicate his un-
qualified satisfaction with his wage increase, Baxter "lit into" Crunk-
8 For the effect of an employer making known to his employees a position which he has
assumed with respect to a labor organization , see the opinion of the Supreme Court of the
United States in International Association of Machinists ; Tool and Die Makers Lodge No.
35, etc. v. National Labor Relations Board, decided November 12, 1940, aff 'g 110 F. (2d) 29
(App. D. C.), enf'g Matter of The Serrick Corporation and International Union, United
Automobile Workers of America, Local No. 459, 8 N L. R B. 621, where the Court, in up-
holding a finding of the Board that an employer had.violated the Act by expressing its
preference for, and otherwise aiding and assisting , one of two legitimate labor organiza-
tions, declared :
Slight suggestions as to the employer's choice between unions may have telling effect
among men who know the consequences of incurring that employer 's strong dis-
pleasure. -
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ilton and said, "Alva, . . . you have caused more disturbance ,and
dissatisfaction among the men here . .. than any man we ever
had . . . if you can't quit that . -. . you might just as well quit right
now." Both Crunkilton and Tom Braden, one of the operators
present at this meeting, further testified without contradiction, and
we find, that Baxter accused Crunkilton of creating dissatisfaction
among the employees, not only at the Pavonia station, but also at
other places at which he had worked; that Crunkilton denied the -
accusation and asked for an opportunity to be confronted by any
person who had made such a charge against him so that he could
refute it; but that Baxter refused to grant him such an opportunity.
Baxter also charged Crunkilton with having circulated a petition
for higher wages among the employees on an occasion about 2 years
prior to the period under discussion. Crunkilton admitted that he
had participated in the circulation of the petition.
In the afternoon of March 5, 1940, Baxter and Hyatt drove to
Crunkilton's home and handed him a letter' informing him of his
discharge. The letter, signed by Baxter, read as follows :
After studying the new schedule which we are putting into
effect at Pavonia Plant, Mr. Hyatt and I see where the plant
can be operated with one less man and still have ample help.
After considering all employees thoroughly and their financial
standing, and, knowing that you own a farm and are young
and husky, we feel that you are better able to make a good living
for yourself and your, family than the other younger men at
this plant.
I have thought of the attitude that you have taken when
asked to perform certain duties at the plant, and also the way
you answered me the morning I talked to you, and asked if
you were satisfied, has convinced me that you are not.
I have decided to lay you off, effective March 5th, 1940. I
will also give you a check in full up and including March 15th,
1940.
After handing Crunkilton the above letter, Baxter started to leave.
Crunkilton, however, asked Baxter and Hyatt to remain and dis
cuss the matter with him, requesting them to "go over all these points
and just see what we got out of them." Baxter at first refused and
stated that the letter was "self-explanatory." Upon Crunkilton's
insistence, however, Baxter and Hyatt. went into the house and dis-
cussed Crunkilton's discharge with him. During the conversation,
Crunkilton told Baxter that he was going to turn the letter over to
thq Union. Baxter then asked Crunkilton, "Why didn't you tell
me you had a union?" Crunkilton replied that there was no reason
THE OHIO FUEL GAS COMPANY 679
why he should so inform Baxter since the latter was "not eligible
to join, anyhow." Crunkilton also asked if "there was ever any
complaint about my work ?" Both Baxter and Hyatt replied in
effect that his' work had been satisfactory. Crunkilton then asked
why he was being discharged, and Baxter replied that it was be-
cause of the "tone of voice" in which he stated on February 29 that
he would be satisfied "for awhile" with the raise being granted him
by the"respondent. Crunkilton testified that it occurred to him dur-
ing the course of the conversation, and he told Baxter, that. he
understood the reason for his dismissal since it "would bust the
union up."
The respondent points to testimony of Baxter and Hyatt to the
effect that the decision to discharge Crunkilton was made prior to
the time Baxter was informed of the union meeting to be held on
March 2 as proof of the fact that Crunkilton's discharge was
not a violation of the Act. Both Baxter and Hyatt testified that
the decision to discharge Crunkilton was made on the morning of
March 2; and Baxter testified, that he did not receive word of the
proposed meeting of the employees -to be held on the evening of
March 2 until late in the afternoon- of that day. Upon considera-
tion of the entire record, we find that the testimony of Hyatt and
Baxter in this respect is not entitled to credence. Neither Hyatt
nor Baxter offered to explain why Crunkilton 'was not immediately
discharged on March 2 when the purported decision to dismiss him
was made, rather than on March 5, 3 days after the union meeting.
Nor did Hyatt, who admitted on cross-examination by counsel, for
the Board that it was not the "regular" practice of the respondent
to give an employee a letter of dismissal, explain why the respondent
departed from its usual procedure in the case of Crunkilton.
But even if we were to credit this testimony, the conclusion drawn
by the respondent would not follow. Viewing the, facts in a light
most favorable to the respondent and accepting its version that the
decision to'discharge Crunkilton was made prior to the time Baxter
became aware of the union meeting scheduled for March 2 provides
no proof that the respondent was not aware of Crunkilton's con-
certed activities and interest in the formation of a union at the
time the decision to dismiss him was made. Indeed, the undisputed
facts compel a contrary conclusion. As noted above, Crunkilton, at
the meeting of the employees called by the respondent on February
16, openly expressed himself in favor of forming a labor organiza-
tion. And at the meeting of February 29, during the discussion
between Baxter and Crunkilton following the announcement of a
wage increase for the operators, Baxter resentfully accused Crunkil-
ton of having engaged in concerted. activities, citing as a specific
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instance the fact that Crunkilton had previously circulated among
the employees a petition for higher wages. The discharge of a'i
employee because he has engaged in concerted activities and mani-
fested an interest in the formation of a labor organization not only
constitutes an unfair labor practice within the meaning of Section
8 (1) but falls within the'proscription of Section 8 (3) as well since
such a discharge effectively discourages employees from forming or
joining a labor organization.°
We turn now to a consideration of the reasons assigned by the
respondent for the discharge of Crunkilton.
The respondent asserts : (1) that the working schedule at the
Pavonia station was rearranged in a manner which made it possible
to eliminate the services of one of the employees; and (2) that
Crunkilton was chosen as the employee to be dismissed because he
was dissatisfied with his salary and working conditions. We shall
examine these assertions separately. The change in the working
schedule to which the respondent refers consisted of an order to the
engineers in charge of each of the respondent's stations throughout
the district to mail in their daily operating reports to Hyatt's office
at Pavonia rather, than report by telephone as they had previously
done. Alfred Pittinger, who had previously acted as an operator,
spent the major part of his time in Hyatt's office as a part-time clerk
and assistant to Hyatt's regular clerk in compiling and transcribing
the reports which came in by telephone. After the change was insti-
tuted, Pittinger was placed in Crunkilton's position as an operator.
The explanation contained -in the letter given to Crunkilton at the
time he was notified of his discharge, as set forth above, is consistent
with the view advanced by the respondent that the decision to make
a change in operations preceded and determined the discharge.
However, Hyatt testified that it was first decided to discharge
Crunkilton, and then the working schedule was arranged to accom-
plish the change. Baxter testified that the change was made when
Crunkilton was dismissed. Thus, it is clear that Crunkilton's dis-
charge was not the result, but rather the cause, of the change in
operations. The change merely provided a vehicle which made the
discharge possible. We reject the respondent's assertion as contrary
to its own explanation of the facts and find that the rearrangement
of the working schedule was not the real reason for Crunkilton's
discharge, but was rather a device utilized by the respondent to
dismiss an employee whose presence was no longer desirable because
of his manifest interest in engaging in concerted activities and in
instituting self-organization among the employees.
9 See Matter of Stehli and Co , Inc . and Temtile Workers Un ion of Lancaster, Pennsyl-
vania and Vicinity, Local #133, 11 N. L. R B. 1397. '
THE OHIO FUEL GAS COMPANY 681
But even if we were to accept this assertion of the respondent as.
true, the question would still remain whether or not discrimination
had been exercised in the selection of Crunkilfon as the employee to
be dismissed. It is evident from the respondent's own version of
the- facts that the position of Pittenger, not that of Crunkilton, was
abolished as a result of the change in operations. By reason of
that circumstance, and because of the additional fact that Crunkil-
ton had continuously performed the duties of an operator while
Pittenger had not, it Would be reasonable to conclude that Pittenger
,rather than Crunkilton would be chosen for dismissal. The re-
spondent offered no explanation for its choice other than the asser-
tion that the quality of Crunkilton's work suffered because of his
dissatisfaction.,, We turn now to a consideration, of that assertion.
As noted above, the,_ third paragraph of the letter presented to
Crunkilton by Baxter on March 5 stated that Crunkilton was being
discharged because he was not "satisfied." Nowhere in the letter
is any claim made that Crunkilton's work was not entirely satis-
factory,' nor is there any intimation that the quality of his work
entered into the decision which resulted in his dismissal. Baxter
himself made no such claim. He testified as follows :
Q. Mr. Baxter, can you tell the court the reason that you
had for discharging Mr. Crunkilton? -
A. Well, he was a boy we could not satisfy, he was, never
satisfied with his salary .. .
Q. On what did you particularly finally base your decision to_
discharge him? , .
A. Well, after I had notified him of this last increase of the
way he answered me, Mr. Hyatt and I talked that over on Satur-
day morning and decided that he, was a hopeless case, as far
as satisfying him.
In his testimony, Baxter gave considerable weight to an incident
alleged by him to have occurred at the meeting on February 16, 1940.
He testified that at.this meeting, Crunkilton, who was then earning
$115 a month, stated that if he were working at a $126 job he would
do only "$115 worth of work." Crunkilton denied that he made any
such statement, nor is Baxter's testimony in this regard corroborated
10 We note in this connection an additional explanation contained in the letter given to
Ciunkilton on March 5 . The respondent there explained that it was discharging him be-
cause he owned a farm and therefore could better provide for himself and his family than
other younger men at the plant. The letter states that the respondent arrived at its
conclusion "after considering all employees thoroughly and their financial standing " The
impression conveyed is that the respondent made a careful and complete investigation of
Crunkilton's financial position . Yet, in reality , the "farm" which Crunkilton owned was a
partially cultivated 2-acre lot which was heavily mortgaged.
6682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Hyatt or any other employee present at that meeting. The un-
reasonableness of Baxter's position speaks for itself, even if his testi-
mony were regarded as accurate. However, the record indicates that
Baxter, in testifying as to the attitude of Crunkilton, confused this
episode with one which occurred at an earlier date and which was
explained by both Hyatt and Crunkilton. Hyatt testified that in the
spring of 1937 or 1938, Crunkilton had objected that he was doing
similar work to that of other employees receiving considerably more
compensation, and that Crunkilton was at that time transferred to
another position. Crunkilton's version of this incident agrees sub-
stantially with that of Hyatt, except that he stated that it occurred
in about 1934 or 1935. We accept, as did the Trial Examiner, who
had an opportunity to observe the demeanor of the witnesses, the
testimony of Hyatt as a more credible explanation of the time and
circumstances of this incident.
Although the respondent attempted to show that Crunkilton's dis-
satisfaction with his wages affected the quality of his work, the evi-
dence does not support that contention. At the time of the discharge,
Baxter admitted that Crunkilton's work was satisfactory, and- a
number of engineers under whom he worked testified that Crunkilton
performed his duties in a satisfactory manner. In addition, although
Crunkilton had been employed by the respondent for 61/2 years prior
to his discharge, during most of which time he had indicated his dis-
satisfaction with his wages, the respondent had never complained
about the quality of his performance. It is plain that Crunkilton's
dissatisfaction with his salary, as a condition which- might have
affected the quality of his work, began to alarm the respondent only
after such dissatisfaction took the form of concerted activities and
attempts to form a union.
In view of all the circumstances, it is evident that Crunkilton was
discharged because of his leadership in concerted activities among
the employees and because of the prominent role he played in bring-
ing about the formation of the Union at the Pavonia plant. The
respondent had been aware for some time of his concerted activities
and interest in labor organizations and resented his concerted activ-
ities and attempted to discourage his interest in the Union. As set
forth above, on February 16, 1940, Baxter indicated his disapproval
of Crunkilton's suggestion that the employees form a union. Like-
wise, on February 29, 1940, Baxter disclosed his knowledge and dis-
approval of Crunkilton's concerted activities by denouncing his cir-
culation of a petition for, higher wages at an earlier date, accusing
him of being a disturbing influence among the employees, and in effect
warning him to cease such activities. In the face of this warning,
THE OHIO FUEL GAS COMPANY 683
Crunkilton continued his organizational effort, and on March 2, 1940,
attended the union meeting which was held at the tourist camp and
which was spied on by the respondent. Baxter did not deny that
Crunkilton's name was on the list of employees obtained by identify-
ing the license numbers of the automobiles parked at the tourist camp;
he testified that: "As I remember, that list that I was shown did not
include his [Crunkilton's] license plate." This list was not produced
at the hearing. However, since Crunkilton's automobile was parked
alongside the others, we find, as did _the Trial Examiner, that his
presence at the meeting was discovered by the respondent." Shortly
thereafter, on March 5, 1940, the respondent discharged Crunkilton.
As we have found above, neither the asserted change in respondent's
operations nor the asserted dissatisfaction of Crunkilton with his
wages and working conditions are justified on the basis of the record
as causes for Crunkilton's dismissal. In the light of the foregoing
events, it is plain that the respondent's decision to discharge Crunkil-
ton was the direct consequence of the latter's persistence in his organi=
zational efforts after being warned by the respondent to cease his
activities in that regard.
We find that the respondent, by discharging Alva L. Crunkilton
on March 5, 1940, discriminated against him in regard to his hire
and tenure of employment, thereby discouraging membership in the
Union, and interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR 'PRACTICES UPON -COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.12
11 In its brief the respondent contends that, even if Crunkilton's name were included on
the list , there was not a sufficient interval elapsing between the time in which the license
numbers of the employees were obtained at the union meeting on Saturday evening, March
2, and the time Crunkilton was discharged on the following Tuesday , March 5, in which
it would normally be possible to secure the names corresponding to the list of, license num-
bers from the Bureau of Motor Vehicles of the Department of Highways in Columbus. In
this connection it is sufficient to note that Baxter himself testified that he did not write
to Columbus in an attempt to secure the names , but received them from the superintendent
of compressors in the Columbus office of the respondent . Baxter further testified that he
was in Columbus on Monday , March 4, and the early part of Tuesday, March 5. It is
apparent that he obtained the names of the employees whose license numbers appeared on
the list during that time
12 See Matter of The Ohio . Fuel Gas Company , a corporation and International Associa-
tion of Oil Field, Gas Well & Refinery Workers of America, 27 N. B R B , No. 64, and
cases therein cited.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action which we find necessary to effectuate the
policies of the Act.
We have found that the respondent discharged Alva L. Crunkilton
because of hi's leadership in concerted activities among the employees
and because of the prominent role he played in instituting the for-
mation of a union; and that-it thereby discriminated in regard to
his hire and tenure of employment to discourage membership in the
Union. We shall, therefore, order the respondent to offer Alva L.
Crunkilton immediate and full reinstatement to his former position
without prejudice to his seniority and other rights and privileges,
and make him whole for any loss of pay he may have suffered by
reason of his discharge by payment to him of a sum of money equal
to the amount he normally would have earned as wages from the
date of the discrimination to the date of the offer of reinstatement,
less his net earnings 13 during said period.
Upon the above findings of fact and upon the entire record in the
case, the Board makes the following :
CONCLUSIONS OF LAW
1. Local No. 12147 and District #50, United Mine Workers of
America, affiliated with the Congress of Industrial Organizations, are
labor organizations, within the meaning of Section 2 (5) of the Act.
2., By discriminating in regard to the hire and tenure of employ-,
ment of Alva L. Crunkilton, and thereby discouraging membership
in Local Union No. 12147 and District #50, United Mine Workers
of America, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining , and coercing its employees in
the exercise of the rights guaranteed by Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
"By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union , Local 2590, 8 N. L. R. B. 440 . Monies received
for work performed •upon Federal, State, county , municipal , or other work-relief projects
shall be considered as earnings . See Republic Steel Corporation v. National Labor Rela-
tions Board, decided by United States Supreme Court , November 12, 1940.
THE OHIO FUEL GAS COMPANY
ORDER
685
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, The Ohio Fuel Gas Company and it officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Local Union No. 12147 and Dis-
trict $ 50, United-Mine Workers of America, affiliated with the
Congress of Industrial Organizations, or any other labor organiza-
tion-of its employees, by discharging or refusing to reinstate any
of its employees, or in any other manner discriminating in regard
to their hire and tenure of employment or any terms or conditions
of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining and other mutual
aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Alva L. Crunkilton immediate and full reinstate-
ment to his former or a substantially equivalent position, without
prejudice to his seniority and other rights and privileges: -
(b) Make whole Alva L. Crunkilton for any loss of pay he may
have suffered by reason of the respondent's discriminating in regard
to his hire and tenure of- employment by payment to him of a sum
of money equal to that which he would normally have earned- as
wages during the period from the date of the discrimination to the
date of the offer of reinstatement, less his net earnings 14 during
said period ;
(c) Post immediately in conspicuous places throughout its Pavonia,
Ohio, compressor station, and maintain for a period of at least sixty
(60) consecutive days from the date of posting, notices to its, em-
ployees stating (1) that the respondent will not engage in the conduct
from which it is ordered to cease and desist in paragraphs 1 (a) and
(b) of this Order; (2) that the respondent will take the affirmative
action set forth in paragraphs 2 (a) and (b) of this Order; and (3)
that the respondent's employees are free to become or remain mem-
bers of Local Union No. 12147 or District #50, United Mine Workers
of America, affiliated with the Congerss of Industrial Organizations,
u See footnote 13. supra.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that the respondent will not discriminate against any employee
because of membership or activity in these organizations or any other
organization of its employees;
(d) Notify the Regional Director for the Eighth Region in writing
within ten (10) days from the date of this Order ' what steps the
respondent has taken to comply herewith.
CHAIRMAN HARRY A. MILLIS took no part in the consideration of
the above Decision and Order.
e