Union Gas System, Inc.

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 ^