Union Gas System, Inc.

National Labor Relations Board - Board Decisions

Apr 8, 1943

48 N.L.R.B. 1004 (N.L.R.B. 1943)

In the Matter of UNION GAS SYSTEM, INC. and INTERNATIONAL UNION
OF OPERATING ENGINEERS, AFFILIATED, WITH THE AMERICAN FEDERA-
TION OF LABOR
Case No. C-2516.-Decided April 8, 1943
Jurisdiction : natural gas distributing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: interrogating employees about union
activities ; anti-union statements.
Discrimination: discharge of two employees because of union activity.
Remedial Orders : reinstatement with back pay awarded; employer ordered to
cease and desist unfair labor practices.
DECISION
AND
ORDER
On January 25, 1943, the Trial Examiner issued his Intermediate
Report in the above=entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
.affirmative action as set out in the copy of the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report and a brief in support of the exceptions. None
of the parties requested oral argument before the Board. The Board
has considered the rulings of the Trial Examiner at the hearing and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the respondent's exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the exceptions and. qualifications noted
below :
1. In his discussion of the discriminatory discharges the Trial Ex-
aminer finds that certain anti-union statements were made by General
Superintendent Love to employee Hopeman, in the spring of 1942, and
to employee Johnson, following the discharge of Hopeman and
Schenck. We agree and so find. We also find that by these statements
of General Superintendent Love the respondent interfered with, re-
48 N. L. R. B., No. 120.
1004
UNION GAS SYSTEM, INC. 1005
strained, and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
2. The respondent-contends in its brief that it is unable to reinstate
Hopeman and Schenck because their jobs were abolished pursuant to
an alleged general reduction in its operations. However, an official
of the respondent testified, and we find, as did the-Trial Examiner,
that where the position of an employee was abolished the respondent
normally shifted such employee to other work. There is no testimony
in'the record to show that there are no other available jobs to which
these men could be transferred in accordance with the respondent's
normal practice. We therefore find that the record does not support
the respondent's contention that it is unable to reinstate Hopeman and
'Schenck.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
-of'the National Labor Relations Act, the National Labor Relations
Board hereby orders that ' the respondent, Union Gas System, Inc.,
Independence, Kansas, and its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Discouraging membership in International Union of Operating
Engineers, affiliated with the American Federation of Labor, or any
other labor organization of its employees, by discharging or refusing
'to reinstate any of its employees, or in any other manner discriminat-
ing in regard to their hire and tenure of employment or any term
or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the 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 purpose of collective bargaining or 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 E. C. Hopeman and Clarence O. Schenck immediate
and full reinstatement to their former or substantially equivalent em-
ployment, without prejudice to their seniority and other rights and
privileges;
(b) Make whole' E. C. Hopeman and Clarence O. Schenck for any
loss of pay they may have suffered by reason of the respondent's dis-
crimination against them by payment to each of them of a sum of
money equal to that which he normally would have earned as wages
from August 15, 1912, the date of the discrimination against them, to
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.the date of the respondent'spfer of reinstatement, less his net earnings
during said period;
(c) Post immediately in conspicuous places in each of its Independ-
ence, Kansas, plants and maintain for a; period of at least sixty (60)
consecutive days from the date of posting, notices to its employees
stating: (1) that the respondent will not engage in the conduct from
which it is ordered that it 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 members
of International Union of Operating Engineers, affiliated with the
American Federation of Labor,• and that the respondent will not dis-
criminate against any of its employees because of membership in or
activities on behalf of that organization;
(d) File with the Regional Director for the Seventeenth Region on
or before ten (10) days from the date of the receipt of this Order, a
report in writing setting forth in detail the manner and form in which
the respondent has complied with the foregoing Order.
INTERMEDIATE REPORT
Dlr. Eugene R. ?Nielson, for the Board.
Mr. Donald W. Stewart. of Independence, Pans, for the respondent
Mr. John H. La Rowe, of Independence, Pans, for the Union.
STATEMENT OF THE CASE
I' Upon a charge duly filed August 24, 1942, by International Union of Operating
Engineers, affiliated with the American Federation of Labor, herein called the
Union, the National Labor Relations Board, herein called the Board, ' by the
Regional Director for the Seventeenth Region (Kansas City, Missouri), issued
its complaint dated December 22, 1942, against Union Gas System, Inc, Inde-
pendence, Kansas, herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1) land (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act Copies of
the complaint and notice of hearing thereon were duly served upon the respondent
and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent: (1) interfered with, coerced, and restrained its employees
by questioning them concerning their union activities, by causing them to he spied
upon for the purpose of obtaining information with respect to their union activ-
ities, and by uttering statements prejudicial to and disparaging of labor organiza-
tions; (2) on or about August 14, 1942, terminated the employment of, and there-
after refused to reinstate, Clarence 0 Schenck and E. C. Hopeman because of
their membership in and activities on behalf of the Union: (3) by the foregoing
conduct violated Section S (1) and (3) of the Act
0
UNION GAS SYS!TE1I, INC. 1007
On January 2, 1943, the respondent filed its answer to the complaint in which
if admitted the allegations of the complaint with respect to its business, but denied
that.it had engaged in any unfair labor practices.
Pursuant to notice, a hearing was held on January 4 and 5, 1943, at Independ-
ence, Kansas , before the undersigned, the Trial Examiner duly designated by the
Chief Trial Examiner The Board and the respondent were represented by
counsel and the Union by a lay representative: all participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence hearing on the issues was afforded all parties At the open-
ing of the hearing the undersigned granted in part and to the respondent's satis-
faction, the respondent's written motion to make the complaint more definite and
certain At the close of the hearing, the undersigned granted, without objection,
a mf'tion by counsel for the Board to conform the pleading to the proof in respect
to formal matters At the close of the hearing, counsel for the Board and the
respondent argued orally before the undersigned. All parties waived the filing
of briefs with the undersigned
Upon the record thus made and from his observation of the witnesses, the
undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Union Gas System, Inc., is a Delaware Corporation having
its principal office in, Independence, Kansas, and is engaged in maintaining and
operating a pipe line in the States of Oklahoma and Kansas, whereby natural
gas is transported from the State of Oklahoma into the State of Kansas, in which
State it is distributed and sold.
The respondent, in-the course and conduct of its business, causes in excess of
30 percent of the natural gas purchased by it to be purchased from sellers in the
State of Oklahoma, and causes in excess of 95 percent of such gas purchased in
Oklahoma to be transported through its pipe line into the State of Kansas for
distribution and sale In excess of 30 percent of the gas distributed and sold
by the respondent is sold to persons, firms, and corporations engaged in inter-
state commerce. The respondent's sales of gas during the year ending July 31,
1942, were in excess of $1,250,000 The respondent employs approximately 260
persons.'
i On December 31, 1942, the war Production Board directed the respondent to cease on
a given date, deliveries of gas to two of its customers, companies engaged in the cement
industry. These two companies consumed approximately 25 percent of all the gas sold by
the respondent The W. P B directive would have the effect of reducing the amount of
gas sold by the respondent to persons or firms engaged in interstate commerce from
approximately 30 percent of the respondent's total sales to approximately 10 percent of such
total sales The W P B directive of December 31, 1942. was on January 5, 1943, re-
scinded until further notice. It is apparent, however, and the undersigned finds, that
should this directive be renewed at some future date and should the respondent comply
thereiiith, the respondent would continue in the conduct of its business to purchase in the
State of Oklahoma and cause to be cone eyed tin ough its pipe lines from that State to the
State of Kansas, a substantial amount of gas for sale and distribution to customers in the
State of Kansas, and that approximately 10 percent of such sales and distribution of gas
would be to persons or firms engaged in interstate coininerce Therefore, the principle of
de muximus would not apply in any event, and the status of the respondent as a corporation
engaged in commerce, within the meaning of the Act, would not be affected.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE ORGANIZATION INVOLVED
International Union of Operating Engineers, is a labor organization affiliate&
with the American Federation of Labor, and admits to membership employees
of the respondent.
III THE UNFAIR LABOR PRACTICES
A. Interference, restrasnt and coercion
t
There is no evidence of organizational activity among the respondent's em-
ployees prior to November 1941, when a group of employees joined the United
Association of Journeymen Plumbers and Steam Fitters of the United States and
Canada, an affiliate of the American Federation of Labor, herein called the
Steam Fitters. Among the employees who affiliated with the Steam Fitters and
who constituted Local 421 thereof, were Louie A. Johnson and E. C. Hopeman,t
Employee Clarence O. Schenck ,' regularly attended its meetings
Johnson, who was designated president of the Steam Fitter's local , testified
that on the occasion of a meeting of the Steam Fitters in Decen. ber 1941 , which.
was held in a public hall situated in the last block of the business district on
one of,the main streets of Independence , E. E. White, the respondent's district
superintendent , parked his car directly in front of the entrance to the hall and
remained in the car observing employees who entered the hall . Johnson, spoke
to White and they engaged in general conversation White asked Johnson the
names of two employees entering the hall, stating : "Louis, I don 't believe I know
who they are ." Several of the employees stopped and spoke to White before
entering the hall. According to Johnson , White remained parked in front of
the hall for approximately 30 minutes to one hour . This meeting occurred on a
Sunday night , and all business establishments except a cafe , described by Johnson
as a "hole -in-the-wall restaurant ," adjacent to the hall, were closed.
White admitted that he sat in his parked car opposite the entrance of the hall
as testified to by Johnson, and explained that he was looking for E . C. Hopeman to
give him some instructions about his work for the following day. He testified
that he had stopped by the restaurant to buy a package of cigarettes and that
while he was sitting in his parked car Johnson came by and he asked Johnson
if he had seen Hopeman According to White, he also asked Ed Howard, an
employee,' if he had seen Hopeman and Howard replied that he thought Hopeman
was in the hall, and inquired , "Do you want to go up there ?" White answered
that he "didn't have any business up there," and Howard said that he
would send Hopeman down if he was in the hall. According to White, he
waited 5 or 10 minutes and when Hopeman , did not appear , left. As to whether
he had inquired of Johnson concerning the identity of two employees entering
the hall , White_ testified : "The only man I remember asking about was E. C.
Hopeman ." White denied that he had any intention of spying on the organiza-
tional activities of employees on this occasion and testified , "If I had been
spying, I would have stopped farther up in the block . I sure wouldn't have parked
in front of the hall " The undersigned finds White's explanation credible. It is
apparent ,' however; that on this occasion White did observe the employees entering
2 Hopeman's discharge is discussed infra.
" Schenck's discharge is discussed antra.
* Howard, who was not employed by the respondent at the time of the hearing. did not
testify- At the time testified to by white, Hopeman was employed as an assistant to
Howard.
UNION GAS SYSTEM, INC. 1009
the union hall., and that the respondent thereby acquired knowledge of the_
identity of certain, employees then engaging in organizational activities.
Schenck, one of the employees who attended the meeting of the Steam Fitters
on the occasion when White observed those entering the union hall from his
parked car, testified that on a number of occasions White questioned him con-
cerning union activities. On one occasion, on the day following a union meet-
ing, White asked him, "Well, how is your union getting along? Many out last
night?" White told Schenck that he did not believe a union would do the em-
ployees any good, and mentioned a number of benefits then afforded its employees
by the respondent. Hopeman testified that White questioned him about organi-
zational activity, and that on one occasion White told him that he had directed
an employee who was interested in union affiliation to see Hopeman. Both
Schenck and Hopeman worked under White. White, who testified subsequently
to Schenck and Hopeman did not deny the testimony of either further than to
state that he did not remember speaking to Schenck about union activities.
The testimony of Schenck and Hopeman was convincing and is credited by the
undersigned who finds that White made the remarks attributed to him by them.
In December 1941, on an occasion when Johnson was in the office of L. J. Love,
the respondent's general superintendent, Love asked him, "What about the
union?" and Johnson replied, "Well, we have got our charter and are taking
in a member or two about every meeting." Johnson testified concerning this
conversation, "Well, as I recall, Mr. Love asked me why we wanted a union;
what we expected to benefit by it" and that Love stated that it was "mostly
about the general attitude and, feeling of the men toward the management, rather
than towards material benefits." When questioned "Just what did you tell him
the general attitude or feeling was, speaking generally?" Johnson answered,
"A great deal of dissatisfaction." Johnson further testified that during this
conversation Love said, "Well, that statement that Hopeman made the other
day about the place to eat, I don't think that should be any of the union's
business ." Johnson replied that he did not know what Love had reference to
and Love explained, "Well, Zeke . . . [E Z White] . . . tells me that he [Hope-
man] said, `If we' had a union here I bet we would have a decent place to eat
our lunch.' "
Love, who testified subsequently to Johnson, did not deny Johnson's testimony
further than to make a categorical denial of knowledge of union activities of the
respondent's employees.6 He admitted that in one conversation he had with
Johnson "there was some reference made to unionism" and he expressed the hope
to Johhson that "union rules were flexible enough" to permit the shifting of men
.from one type of employment to another when the exigencies of the occasion
called for such transfers.
The undersigned found Johnson to be a convincing witness and finds that Love
made the remarks attributed to him by Johnson.
s Hopeman admitted that he complained to White about the facilities for eating, but testi-
fied that he told White that this bad nothing to do with the union.
Love testified : "I knew . . that they were having meetings. No one had ever
shown any buttons or badges or shown any cards. I had no way in the world of knowing
that they were forming a company union or an affiliated union " While it may well be that
Love had no first hand knowledge of the actual union membership of employees, since it is
not asserted that they wore badges or other insignia of membership, it is nevertheless clear
from the testimony of Johnson and others, not specifically denied by Love, that he was aware
that the employees were engaged in organizational activity and had knowledge of the
identity of at least some of those thus engaged.
,
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
An affidavit of R. L. Kishpaugh was received in evidence pursuant to a stipula-
tion of the parties that Kishpaugh , if called as a witness , would testify according
to the statements made in the affidavit " Kishpaugh stated in his affidavit
I was employed by the Union Gas System , Inc., during 1941. In the latter
part of the year I was active in getting a union started among the com-,
pany 's employees . I took a trip to Coffeville to try and get a union repre-
sentative to come up and help us.
During the fall of 1941 , L. J. Love, general superintendent of the Union,
Gas System , Inc, had me on the carpet three times over the union. On one
occasion he asked me what the boys were oigamzmg for On another occa-
sion be questioned me about an alleged strike which I was supposed to be
promoting
The third time Love called me into his office over the union he started to tell
me about the company 's sick leave and vacation pay programs He then
said "And you let a handful of sons -of-bitches tear down what we build up ".
I got mad at this point and he apologized for using the terms sons-of-bitches.
He then asked me if I had a card and I told him yes ( I knew he meant a
union card as he had had me on the carpet twice before over the union.).
After I said yes he said "then you better find some place where you can use
it.,,
Love admitted that he had a conversation with Kishpaugh in December 1941 and
that what he said "was something, as the affidavit indicates." Love testified that,
at the time this conversation occurred "it looked as though we were going to get
a nice bunch of benefits for all of the men, to say nothing of an increase in pay."
From Love's testimony, it appears that Kishpaugh made certain complaints
concerning wages or working conditions and that Love responded by referring to
the proposed benefits and said, "With these things forthcoming, I wouldn't let
any so-and-so do anything to upset the band-wagon at this stage of the game.
We have got 'these things coming; and let them come along without any more
disturbance." The following is an excerpt from 'Love's testimony :
Q. Who did you have reference to by the "so-and-sos" who might stop those
things?
A Well, I had reference just to some of the men and their complaints doing
something to upset the things at that time.
Q Did he [Kishpaugh] represent himself as speaking for a group of men or,
did he simply come to you with a personal complaint?
A. No,; as I think of it, he was more or less speaking for a group of men.
Love further testified that in his remarks to Kishpaugh he was not "thinking
about any organization or anything of that kind " Love did not specifically deny
any of the statements contained in Kishpaugh's affidavit.
The undersigned does not credit Love's explanation that his statements were
made without thought of organizational activities of the employees, and finds
that he made the statements substantially as attributed to him by Kishpaugh.
In December 1941, the respondent published in its house organ The News, which
was distributed among its employees, an announcement of "Employment Policies
and Benefits " This announcement included such topics as "Group Hospitaliza-
Kishpaugh, who was not employed by the respondent at the time of the hearing, was,
engaged in defense work which occupied him (luring the regular hours of the hearing. A
night session of the hearing was proposed for the purpose of receiving Kishpaugh' s testi-
mony, but counsel for the iespundent preferied to waive cross-examination of Kisbpaugh
and entered into the stipulation as stated above with counsel for the Boaid
UNION GAS SYSTEM, INC. 1011
tion Insurance," "Pay for Holidays," "Summer Vacations," "Sick Leave," and
"Periods of Service." This announcement was first mentioned in the November
1941 issue of The News and the benefits announced had in large measure been in
force for a considerable period of time. Included in the announcement was the
following statement :
While these-policies are all old, there has never been a comprehensive state-
ment of them in writing, and by this statement, in keeping with the policies
adopted last July, all of these benefits are extended to all regular employees
without distinction between monthly, weekly or hourly rates of pay.
While this announcement appeared shortly after first organizational activities
of the employees, it is clear that it was formulated prior to organization by the
Steam Fitters, that the benefits which it summarized were not new, and the
undersigned accordingly finds that the announcement was not made for the
purpose of discouraging organizational activity.
CONCLUSIONS
On the basis of the foregoing findings of fact and upon the entire record, the
undersigned finds that the respondent, through its general superintendent, Love,
and its district superintendent, White, questioned its employees concerning their
union activities, made statements to its employees which tended to discouraging
them in their organizational activities and to persuade them to refrain therefrom,
and by the aforesaid statements and conduct, interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
B. The discriminatory discharges of Hopeman and Schenck
E C. Hopeman was first employed in 1929 and, except for Certain periods during
1930 and 1931, worked continuously for the respondent from that date until his
employment was terminated on August 15, 1942. At the time of his discharge
and during the period at issue, he was employed as a truck driver. He was a
charter member of the Steam Fitters. Clarence 0. Schenck was employed by
the respondent for approximately 6 years prior to August 15, 1942, when his em-
ployment also was terminated He operated a ditching machine and was assigned
from time to time to various other jobs. He was secretary of the Steam Fitters i
local.
In December 1941 there occurred a conversation between Hopeman and Super-
intendent Love, during which Love advised Hopeman that Paul R. Johnson, the
respondent's president, required Hopeman's discharge Love testified that John-
son, while driving to his office, had observed Hopeman in the net of stopping
two loads of pipe, of 50 feet overall length each, across a busy street intersection,
for the purpose of picking up a passenger. Such action constituted a violation
of company rules which were printed on a brass plate attached to the dashboard
of the truck According to Love, Johnson said, "I want you to discharge him
[Hopeman] forthwith " s Love further -testified that he discharged Hopeman
pursuant to Johnson's instructions, but that Hopeman asked him to intercede
with Johnson in his behalf, and that thereupon he obtained Johnson's permission
to retain Hopeman "on probation." Love then talked to Hopeman again and'
told him that he could remain in the respondent's employ, but 'that he was on
probation. Hopeman lost no time from his job because of this discharge.
Johnson did not testify.
521247-43-vol 48-65
11 012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hopeman admitted that Love' told him that his discharge was required by
Johnson and that he "would see what he could do with Mr. Johnson about it,"
and that he thought Love told him that Johnson required his discharge because
he had stopped and given someone a ride on his truck, but denied that a complaint
was made that he had blocked a highway or street. According to Hopeman, it
was not unusual for a truck driver to give some person of his acquaintance a ride.
Hopeman further testified that during this conversation, Love referred to Hope-
man's "dissatisfaction" and expressed the opinion that it would be better if
Hopeman "looked elsewhere" for employment. Hopeman testified : "... the
understanding when we left was that water over the dam would be over the dam
and I was to cease my activities and he would see what he could do for me."'
When questioned what was meant by the requirement that he was to cease his
"activities," Hopeman testified, "As near as I could understand the reference,
it was my union activities and that I had been helping with the organization
of this local," and "It seemed, if I remember correctly, that agitating other
employees was the statement that was made." As to whether Love made specific
mention of his union activities, Hopeman testified, "I couldn't say for certain
now." Love, who testified subsequently to Hopeman, made no specific denial of
the latter's testimony on this topic.
According to Hopeman, he discontinued his union activities for about 6 weeks
following this conversation with Love and thereafter, failing to hear "anything
more from Mr. Love in regard to a question of wages, ... went on with the
union." Love testified that following Hopeman's discharge in December, -Hope-
man "behaved himself pretty well for a short period of time, and then started
in on the same old line again " Love further testified that he did not "classify"
Iopeman's activity with the thought of "organization" and that Hopeman "just
seemed to ,be sort of a busy-body."
In the spring of 1942, Hopeman had a ' second conversation with Love, during
which Love stated that he had talked to Schenck and tried to find out "why we
were continuing with our union organization of our local." Hopeman referred
to benefits which it was hoped might be derived through union organization, and
when questioned as to whether any comparison was drawn between benefits
granted by the company and benefits to be derived from the union, Hopeman
testified: "The only thing that I can recall is that he [Love] didn't see where
I could benefit any, and I mentioned that one of the things that-the policies
of organized labor was seniority, and if I understood him right, he said that they
had recognized that, and I disagreed with him.""
The local organization of the Steaih Fitters was disbanded sometime prior to
June 1942, when some of the employees wanted to organize on an industrial,unit
basis. Arrangements were made to reorganize under the International Union
of Operating Engineers, herein called the Union.
. In June 1942, Hopeman called John H. LaRowe, representative of the Union
in Independence, and made all appointment to meet him at the latter's hotel.
Hopeman was accompanied on this occasion by Schenck. LaRowe testified that
Hopeman and Schenck were the first of the respondent's employees whom he
interviewed concerning organization by the Union. After this conference, a
number of organizational meetings of the respondent's employees were held. On
about August 9', the Union held a meeting at the Union's hall in Independence
It appears from Hopeman's testimony that he had complained about the wages he was
receiving, and understood that Love would attempt to secure an increase for him.
10 Although he testified that he did,not recall a conversation with Hopeman subsequent
to the December conference, Love did not specifically deny that this conversation occurred
as testified to by Hopeman. I
UNION GAS SYSTEM, INC. 1013
and, at this meeting, Hopeman , Schenck and several other employees signed
membership cards. Hopeman introduced LaRowe to the employees.
Both Hopeman and Schenck, who were'at that time on a 2 weeks ' vacation,
were active in advertising this and other meetings of the Union , and invited,
employees of the respondent and affiliated companies to attend . Hopeman test!-.
fled that she asked about 25 employees to attend the meeting a few days prior to
his discharge . Among the employees thus solicited by Ilopeinan , were several
employed by the Elk Valley Alfalfa Mill, a company afhliated with the respondent.
Hopeman admitted that he visited this plant and talked to the employees during,
the latter 's working hours, but testified that he had visited and talked to employees
of this company during working hours on previous vacations . Hopeman also.
talked to one employee of the Glencliff Creamery , also an affiliated company,
and on this occasion was accompanied in his car by Schenck.
On or about August 14, Love visited Schenck at the latter 's home and inquired
of Schenck what he had against the company. Schenck replied that the respond-
ent showed partiality and that he believed he should have better wages. After a
general discussion of wages during which Love stated that the respondent could
not pay the wage - scale then prevalent in defense industries , Love stated, "It
looks like we can't get together . You wafit more money than I can pay and it
looks like the parting of the ways ." Later that same day, Superintendent White
came to Schenck 's house and told him to call for his pay check on the following
day. Schenck testified that White said he "hated to do it," that Schenck "was a
good worker , a good ; liand." Schenck got his cheek on the afternoon of the '
following day and, later , asked White about his discharge. White told him that
Love had reported to him that Schenck was dissatisfied because of partiality
displayed by the respondent and wanted more money.
On the same day that Schenck was notified to get his check, White also notified
Hopeman to call at the respondent 's plant on the following day for his check.
Hopeman asked White what was the matter and White replied that he did not
know. Hopeman talked to Love on the following Monday and asked Love the
reason for his discharge . Love replied that it was because he (Hopeman) was
"dissatisfied and unhappy." Hopeman replied that it seemed to him that it was
his union activity . Love then stated ".Well , you can think what you please, but
I can't say what I think ." Hopeman testified that he made no demand for a wage
increase at the time of his discharge , that Love stated that his work "was very
satisfactory," and that " there was discussion about wherever I went that there
was agitation among the employees ; that he [Love ] had had reports from different
sources." According to Hopeman, Love also mentioned Iopeman ' s visit to
employees of the Elk Valley Alfalfa Mill and stated that it had made the manager
of that plant , who was the son of the respondent ' s `president , "pretty sore."
Hopeman's testimony was not specifically denied by Love and is credited.
. Employee Johnson testified that subsequent to the discharge of Hopeman and
Schenck, Love told him, "Louie, I suppose you will be interested in Hopeman's
and Schenck 's welfare," and further stated, "Now, Clarence ... is a good boy,
and I like him, but it seems that he just isn 't satisfied ," and "As to Hopeman,
he went down to the mill .. and talked to the boys over there ; tried to organize
a union , and we can 't have that ." Love did not deny Johnson's testimony and
admitted that he had been advised by the respondent 's president of Hopeman's
visit to the Elk River Alfalfa Mill11 Love testified , ". . . he [President Johnson],
"It appears- from Love 's testimony that Schenck accompanied Hopeman on the latter's
visit to the Alfalfa Mill since, according to Love, President Johnson advised him that two__
of his men had visited the mill . However, neither Hopeman nor Schenck testified that
Schenck was present on this occasion.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
got on me for allowing two of my men to be running around loose, talking. to the
men at the mill and interrupting the men during working hours. I explained
those men were on vacation. I was sore and I told him I would talk to them ;
I would make an effort to see it didn't happen again.'' Love further testified
that President Johnson advised him of the names of the two employees who
visited the Alfalfa Mill and that he received this information prior to the termina-
tion of employment of Hopeman and Schenck, but denied that he was advised
that the Union was the topic of conversation between Hopeman and the employees
at the mill.
Shortly after the termination of the employment of Hopeman and Schenck,
Hopeman obtained from Love a letter of recommendation, which stated, in part :
Mr Hopeman is a competent workman, familiar with trucks, tractors,
machinery in general, carpentry and concrete work.
He is a man who takes a real interest in his work, and will turn out a good
'job to the best of his ability.
At the same time, Hopeman obtained a letter of recommendation for Schenck,
which read, in part :
Mr Schenck is a hard working, earnest workman, familiar with automotive
equipment, tractors, air tools, etc. He will make you a competent hand
wherei=er you can use him.
Both letters were signed by Love as the respondent's "General Pipe Line Superin-
tendent." Love testified that he meant what was said in the letters of recom-
mendation'z
While the respondent, in its answer, asserted that the employment of Hopeman
and Schenck was terminated "by mutual consent because- the parties were unable
to agree upon wages mutually satisfactory," Love testified that Hopeman was
discharged for inefficiency and insubordination, and White testified that Love
instructed him to tell the "boys" to go down and get their checks, "that they
had caused so much disturbance, they were through with them " ' It is clear
from the foregoing that the element of mutual consent was entirely absent in,
the termination of Hopeman's employment, and while White testified that
Schenck had told him that he would quit if he did not get more money, and
Schenck admitted that he had made such a remark to an employee who "did a
pretty good job of advertising it," the undersigned is convinced and finds that
Schenck at no time consented to the termination of his employment. White's
testimony that Love advised him that Hopenian and Schenck had "caused so
much disturbance, they were through with them," shows clearly that the termina-
tion.of Scheuck's employment was not predicated upon mutual consent. The
undersigned accordingly finds that the respondent discharged Hopeman and
Schenck
Love's testimony respecting the termination of Hopeman's employment was
confused and, at times, self-contradictory. While testifying that Hopeman was
discharged for inefficiency and insubordination, the only instance of insubordina-
tion that he, gave was Hopeman's violation of a company rule in December
1 141, previously referred to in this report, and it is obvious that if Love meant
what he said in his letters of recommendation, lie did not regard Hopeman as
inefficient. The respondent offered testimony to show that Hopeman questioned
the judgment of the management in its purchase of a truck, that the expense
of Hopeman's operation of his truck was greatly in excess of that of a com-
12 Love testified in this connection : " . . . I figured that they were capable of being
competent men and that dust simply because of inefficiency and insubordination with us-
that possibly they were capable of making somebody else a good employee. They both are
capable of being competent men."
UNION GAS SYSTEM, INC. 1015
panion truck, and that the expense of operating this same truck was mate-
rially reduced following Hopeman's discharge It is clear, however, that this
truck was purchased months prior to Hopeman's discharge, and there is no
evidence that lie-was at any time (hiring his employment with the respondent
confronted with a complaint that he was operating his truck in a manner to
cause unnecessary expense. No mention of such matters was made by the
respondent at the time of discharge. There is no evidence whatever tending
to show that Schenck was either insubordinate or inefficient.
It appears from the entire testimony of both White and Love that Hopeman
and Schenck were regarded by management as habitual, "gripers." White testi-
fied concerning Hopeman : ". . . every time I went past his truck-his truck
didn't suit him, his' job didn't suit him or his pay didn't suit him. If it wasn't
all three, it was one or the other ;something was wrong with the drinking
facilities or something else " The testimony of both Hopeman and Schenck in-
dicates that they were dissatisfied with their wages and working conditions,
that they voiced their complaints to management, and that they were seeking
through union organization to better themselves. However, Hopeman and
Schenck were not the only employees who were dissatisfied with wages and
working conditions. It is clear from all the testimony that; because of the
high scale of wages prevailing in defense plants, there was general dissatisfac-
tion among the respondent's employees Louie Johnson testified that such dis-
satisfaction was general, and that Hopeman and Schenck were no more vocal
in expressing dissatisfaction than other employees When questioned by coun-
sel for the respondent "Did you consider that beefing and griping you say they
[Hopeman and Schenck l were doing all the time to be personal with them or
official, on behalf of somebody else?" Love answered, "Well, it didn't seem to
he altogether personal. There were too many things that, were said that
sounded as though they were fighting somebody else's battle"
The only explanation offered by the respondent for discharging Hopeman
and Schenck while they were on vacation, which admittedly was contrary to
normal practice, was that they would thus be free to seek employment elsewhere
while still on the respondent's pay roll."
CONCLUSIONS
The respondent's explanation of the termination of the employment of Hope-
man and Schenck was confused and shifting, but the reason most often advanced
in the testimony of Superintendent Love was that these, two employees were
_disgruntled and were habitual "gripers;" According to Love, Hopeman was
15 The number of persons employed by the respondent has been substantially reduced dur-
ing the past 12 months , and the respondent asserts that it no longer has any need for the
services of either Hopeman or Schenck. No new employees were hired to fill the vacancies
caused by their respective discharges, but employees were transferred to these jobs from
other work in which they were then engaged While White testified that the truck operated
by Hopeman was idle most of the time at present, it is clear that it was operated for a
substantial period of time subsequent to Hopeman's discharge , since the respondent offered
testimony to show a decreased expense in its operation by another employee. Schenck
worked on various jobs during the entire time of his employment and, according to White,
normally- an effort was made to provide full-time employment for each employee by shifting
employees from one job to another, when required Nothing contained in the Act prevents
an employer from bringing about a reduction, of his personnel according to normal pro-
cedure, when necessity or business requirements dictate such a reduction , ' but the under-
signed is convinced that the discharge of Hopeman and Schenck was not perdicated upon
normal procedure in the reduction of the respondent ' s personnel , and find the respondent's
assertion in this connection to be an afterthought and material 'only insofar as it might
have bearing on the reinstatement of the discharged employees.
1016 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
"sort of a busy-body " White was advised by Love that Hopeman and Schenck
were being discharged because "they had caused so much disturbance." At the
time of, the discharge, Hopeman was advised by Love that wherever Hopeman
went "there was agitation among the employees," and "that he [Love] had had
reports from different sources " However, since both Hopeman and Schenck
had been employed by the respondent for 6 years and more, it is hardly to be
supposed that they were malcontent during this entire period, or that the re-
spondent would have retained them in its employ for so long a time had they
been in fact, there is no evidence that the respondent was disturbed by their
discontent or had any fault to find with them as employees prior to the beginning
of organizational activity by the Steam Fitters, in which both Hopeman and
Schenck were prominently engaged.
Shortly after he had affiliated with the Steam Fitters, Hopeman was advised
by Love that lie was discharged for the violation of a company rule, but was
permitted to continue in the employ of the respondent provided he would cease
his "agitation." While the evidence fails to establish that his union activities
were specifically mentioned in this connection, Hopeman understood the reference
to involve his activity in behalf of the Steam Fitters, and refrained therefrom
for a period. In the language of Love's testimony, Hopeman "behaved himself
pretty well for a short period of time, and then started in on the same old line
again." When Hopeman had resumed his union activity, Love inquired of him
why the employees were continuing with their local organization In view of
the foregoing, the undersigned is convinced that the respondent did not regard
Hopeman's and Schenck's "complaints" as isolated phenomena of employee dis-
content, not associated with their Union activity. To the contrary, it is clear
from Love's testimony that Hopeman and Schenck in registering their complaints
"sounded as though they were fighting somebody else's battle," that he was con-
cerned with the concerted-activity character of their conduct and regarded them
as spokesmen of a group of employees In view of his own testimony and the
context of the entire situation as revealed by the record, his subsequent denial
that he had any thought of "organization" in this connection, is equivocal and
unconvincing.
Both Hopeman and Schenck received substantial wage increases during the
year, preceding the termination of their employment, and the respondent advanced
no instances of newly discovered misconduct or failure in the performance of `
their duties to account for their discharge on August 15, 1942 Love testified
that in Hopeman's case, it was just a "continuation of the same thing." It is
noteworthy, however, that only a few days prior to their discharge, both Hope-
man and Schenck had participated prominently in renewed organizational-
activity, had signed membership cards in the Union, and had visited employees
of companies affiliated with the respondent for the purpose of inviting them to
attend an organizational meeting of the Union. The respondent's knowledge of
Hopeman's visit to the Elk Valley Alfalfa Mill, an affiliated company, was ad-
mitted and, although Love denied that he was advised that-this visit had to do
with union activity, his statement to Louie Johnson subsequent to the discharge
of Hopeman and Schenck that Hopeman "talked to the boys over there, tried to
organize a union, and we can't have that," shows the true state of his knowledge.
In view of the unsatisfactory and, at tines, self-contradictory character of
the respondent's explanation of the termination of the employment of Hopeman
and Schenck, and upon consideration of the entire record, the undersigned is
convinced and finds that the respondent discharged Hopeman and Schenck
because of their,union activity, thereby discouraging membership in the Union,
and interfering with; restraining, and coercing its employees iii-the exercise of
the rights guaranteed in Section 7 of the Act.
UNION GAS SYSTEM, INC..
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES, UPON COMMERCE
1017
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent set forth 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.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
The undersigned has found that the respondent discriminated in regard to the
hire and tenure of employment of E. C. Hopeman and Clarence O. Schenck. The
undersigned will therefore recommend that the respondent offer immediate and
full reinstatement to said employees to their former or substantially equivalent
positions without prejudice to their, seniority and other rights and privileges,
and that the respondent make them whole for any loss of pay they may have
suffered by reason of the discrimination against, them by payment to each of them
of a sum of money equal to that which he normally would have earned as wages
from August 15, 1942, the date of such discrimination, to the date of the offer
of reinstatement, less his net earnings" during said period."
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAw
1. International Union of Operating Engineers, affiliated with the American
Federation of Labor, is a labor organization, within the meaning of Section 2
(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of E C.
Hopeman and Clarence O. Schenck, and each of them, and thereby discouraging
membership in a labor organization, therespondent 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 in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
14 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 , « hich 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 America,
,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. N. L. R. B., 311 U. S 7
75 The respondent ofteied testimony, which the undersigned has credited, showing that
it has substantially reduced its personnel during the peuod subsequent to the discharge
of Hopeman and Schenck. Nothing herein shall be taken to require the respondent to re-
frain from making such reduction of personnel,as it sees fit, provided such reduction is
accomplished in a nou-discriminatory manner.
1018 DECISIONS OF NATIONAL LABOR RELATIONS, BOA-RD
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned hereby recommends that the respondent , Union Gas System, Inc.,
Independence , Kansas, its officers, agents , successors , and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in International Union of Operating Engineers,
hffiliated with the American Federation of Labor, or any other labor organization
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 employ-
ment or any term or condition of employment ;
(b) In any other manner interfering with , restraining , or coercing its em-
ployees in the exercise of the 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 purpose of collective'bar-
gaining or other mutual aid or protection , as guaranteed in Section 7 of the Act.
2. Take the following - affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Offer to E. C. Hopeman and Clarence 0 Schenck immediate and full
reinstatement to their former or, substantially equivalent employment , without
prejudice to their seniority and other rights and privileges ;
(b) Make whole E. C. Hopeman and Clarence O. Schenck for any loss of pay
they may have suffered by reason of the respondent 's discrimination against
them by payment to each of them of a sum of money equal to that which he
normally would have earned as wages from August 15 , 1942, the date of the dis-
crimination against them , to the date of the respondent 's offer of reinstate-
ment, less his net earnings 16 during said period ;
(c) Post immediately in conspicuous places in each of its Independence , Kansas,
plants and maintain for a period of at least sixty ( 60) consecutive days from
the date of posting, notices to its employees stating: ( 1) that the respondent
will not engage in the conduct from which it is recommended that it cease and
desist in paragraphs 1 (a) and ( b) of these recommendations ; ( 2) that the
respondent will take the affirmative action set forth in paragraph 2 (a) and (b)
of these recommendations ; and (3 ) that the respondent's employees are free
to become or remain members of International Udiou of Operating Engineers,
affiliated with the American Federation of Labor , and that the respondent will
not discriminate against any of, its employees because of membership in or
activities on behalf of that organization ;
(d) File with the Regional Director for the Seventeenth Region on or before
ten (10 ) days from the date of the receipt of this Intermediate Report, a report
in writing setting forth in detail the manner and form in which the respondent
has complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10 ) days from the
date of the receipt of this Intermediate Report, the respondent notifies said
Regional Director in writing that it will comply with the foregoing recom-
mendations , the.National Labor Relations Board issue an order requiring the
respondent to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended , effective October 28,
1942-any party may within fifteen ( 15) days from the date 'of the entry of the
order transferring the case to the Board , pursuant to Section 32 of Article II
• 16 See footnote 14; supra.
UNION GAS SYSTEM, INC. 1019
of said Rules and Regulations ; file with the Board , Shoreham Building, Wash-
ington, D. C., an original and four copies of a statement in writing setting forth
such exceptions .to the Intermediate Report or to any other part of the record or
proceeding ( including rulings upon all motions or objections ) as he relies upon,
together with the original and four copies of a brief in support thereof. As
further provided in said Section 33 , should any party desire permission to
argue orally before the Board, request therefor must be made in writing to
the Board within ten ( 10) days from the date of the order transferring the case.
to the Board.
WILLIAM E. SPENCER,
Dated January 25 , 1943. Trial Examiner.
1 ^