Continental Pipe Line Co.

In the Matter Of CONTINENTAL PIPE LINE COMPANY and INTERNA- TIONAL UNION OF OPERATING ENGINEERS , LOCAL No. 550, A. F . L. Case No. 16-6'---1,19.-Decided April 17, 1946 DECISION AND ORDER On January 7, 1945, 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 forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. No request for oral argument before the Board at Washington, D. C., was made by any of the parties, and none was held. The Board has considered the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. 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, Continental Pipe Line ' We note that the Trial Examiner, in discussing the altered employment record of Pumpelly, inadvertently found that both words "Resigned-Dissatisfied" on the record were written with a typewriter ribbon, while other entries on the document were in car- bon An inspection of this employment record indicates , and we find, that the word "Dis- satisfied" is in carbon rather than in original as found by the Trial Examiner , although it is in different size type from the other carbon entries. The document is nevertheless discredited for the reasons set forth in the Intermediate Report and more particularly by reason of the erasure and substitution of the word, "Resigned ," by typewriter ribbon for the original entry. 67 N. L R B, No 55 389 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company, Ponca City, Oklahoma, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Union of Operating Engineers, Local No. 550, A. F. L., by discriminatorily discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Union of Operating Engineers, Local No. 550, A. F. L., or any other labor organization, 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 Board finds will effectuate the policies of the Act : (a) Offer to James M. Pumpelly and Ralph King immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges ; (b) Make whole the above-named employees 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 during the period from the date of the respondent's discrimination against him to the date of such offer of reinstatement, less his net earnings during such period ; (c) Post at its various stations throughout the McAllen District, Texas, copies of the notice attached to the Intermediate Report marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director of the Sixteenth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Sixteenth Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. S Said notice, however , shall be, and it hereby is, amended by striking from the first para- graph thereof the words, The Recommendations of a Trial Examiner," and substituting in lieu thereof the words, "A Decision and Order." CONTINENTAL PIPE LINE COMPANY 391 CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Earl Saunders , for the Board. Mr. William H. Zwick, of Ponca City, Okla., for the respondent. Mr. J. E. Gilliland, of Corpus Christi, Tex., for the Union. STATEMENT OF THE CASE Upon a charge filed May 17, 1945, by International Union of Operating Engi- neers, Local No 550, A. F. L, herein called the Union, the National Labor Rela- tions Board, herein called the Board, by its Regional Director for the Sixteenth Region (Fort Worth, Texas), issued its complaint, dated October 25, 1945, against Continental Pipe Line Company, 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) and (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, as amended during the hearing, alleges in substance: (1) that the respondent discriminatorily dis- charged, because of their union activities, James M Pumpelly and Ralph King, on September 1, 1944, and April 19, 1945, respectively; (2) that from March 1944, to the date of the complaint the respondent has urged and warned its employees to refrain from joining or remaining members of the Union, has expressed dis- approval of the Union, and has kept under surveillance union meetings; and (3) that by these acts the respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. In its answer, filed with counsel for the Board at the opening of the hearing, the respondent denies that it has engaged in the alleged unfair labor practices. As to Ralph King, the answer alleges that he was discharged for just cause. Pursuant to notice, a hearing was held in Rio Grande City, Texas, on November 20, 21 and 22, 1945, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel, and the Union by an International Representative. All parties par- ticipated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the opening of the hearing the Trial Examiner granted a motion of counsel for the Board to amend the complaint in certain respects, particularly to include an allegation that James M. Pumpelly had been discriminatorily discharged' During the hearing the request of counsel for the respondent was granted to the effect that the general denials in the answer as filed be deemed to cover the amendments made to the complaint. At the close of the hearing a joint motion was granted to conform the pleadings to the proof in minor matters. Also at the close of the hearing all counsel waived the privilege accorded to them of arguing orally before the Trial Examiner and of filing briefs with him. In granting this motion , the objection of counsel for the respondent was overruled. Counsel was informed that after the completion of the Board 's case a reasonable adjourn- ment would be granted, if requested, in view of the new allegations . At the end of the Board 's presentation of evidence , however, counsel for the respondent expressly stated that he desired no adjournment 392 DECISIONS OF NATIONAL LABOR RELATIONS BOaftD Upon the entire record in this case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Continental Pipe Line Company is a Delaware corporation, with its principal office in Ponca City, Oklahoma. It is engaged in the State of Texas and in other States in the transportation of crude oil and petroleum products. In Texas, it transports crude oil for various producers through pipe lines with terminals at Port Brownsville, Texas, at which port a substantial amount of such oil is loaded into tankers and shipped to Baltimore, Maryland, and to the Dominion of Canada. The amount of oil thus transported exceeds five hundred thousand barrels a year. The respondent admits that it is engaged in commelce within the meaning of the Act? II. THE ORGANIZATION INVOLVED International Union of Operating Engineers, Local No 550, A. F. L, is a labor organization admitting to membership employees of the respondent. III THE UNFAIR LABOR PRACTICES A. Setting in which relevant events occurred 1. Nature of the operations involved herein The major events at issue in this case took place in one area of the respond- ent's several operations. This area, in the lower Rio Grande Valley, is known as the McAllen District. The district office is located at McAllen, Texas. Since early 1942 H. E. Greenwell has been in charge of this area as superintendent. The pipe line under Greenwell's supervision extends from a point called the Rincon Oil Field, in Starr County, Texas, to the terminal at Port Brownsville, on the Gulf of Mexico. Along the course of this line are several junctions and stations to which a varying number of employees are regularly assigned. At one of the two types of stations along the main line oil is pumped into storage tanks, and from them is pumped on down the main line At most of such pump stations three men are regularly assigned. About 40 men, classified either as engineers or gaugers, operate and maintain the stations where storage tanks are located. In addition to these men, Greenwell has supervision over from five to seven connection men, and a "receipt and delivery gauger" who is sta- tioned at the Brownsville terminal. The two discharges at issue herein occurred at opposite extremities of the line : one at the Rincon field, and the other at the Brownsville terminal. The nature of the work performed at these two points as it relates to the issues in this case, will be discussed more fully below. 2. Self-organizational efforts of employees in the McAllen District The record contains no evidence that any efforts toward self-organization were made among the respondent's employees in the McAllen District before early 1944. At that time the general office of the A. F. L. sent an organizer into S The above findings are based upon a stipulation of all parties entered into at the hearing. CONTINENTAL PIPE LINE COMPANY 393 this field to attempt organization among the employees of both the respondent and the Continental Oil Company.' One general meeting of the respondent's employees was held in the late spring or early summer of 1944. As described more fully below, and despite the protest of the organizer, Superintendent Greenwell attended this meeting, and advised the assembled employees, in effect, that he disapproved of their or- ganizing and specifically threatened to quit if they did organize . Only one employee, James M. Pumpelly, openly joined the Union at this meeting after Greenwell's speech. Shortly thereafter Pumpelly's employment of more than twenty years with the respondent was terminated, under circumstances nar- rated below. Further organizational efforts ceased until the spring of 1945. Early in 1945 two union representatives renewed organizational activities in this area. Employees of the Continental Oil Company became organized, a charter was issued, and Local 550 was established. A few employees of the respondent joined or applied for membership in this local. The charter was received and officers were elected at a meeting held on March 21, 1945. An employee of the Continental Oil Company was elected president, and Ralph King, a gauger at the respondent's Rincon Field, was elected vice-president. The discharge of King, a few days after his election to this office, is described below. B.. vents relevant to issues in this proceeding 1. Superintendent Greenwell attends organization meeting in 1944 A few days before the organization meeting in 1944, the A. F. L. organizer sent postal card announcements of the meeting place and date to the pipe line employ- ees. Superintendent Greenwell, according to his own testimony, read one of the cards which came through the office addressed to one of the employees. He there- after told at least one operator in charge of a station that he wanted employees to attend, and upon receiving this information from the operator at least one employee went to the meeting against his own wishes.` Greenwell himself went to the meeting, which was held in a local hall at McAllen. Although the organizer objected to his presence, pointing out that he did not believe the men would feel free to vote if he should remain there, Green- well declined to leave unless the organizer also withdrew.' One of the employees asked Greenwell to make a speech. Among other things Greenwell urged the assembled employees, numbering about 30, that while it was their business to decide whether or not to join the Union, they should not "go into the matter blind." He advised them to let their "conscience be their guide." He further told them, also according to his own testimony : ... there were somewhere between three and five million men in uniform who were fighting for free speech and a free press and for free religion and that I felt like it was my privilege in saying that the same day that the Con- tinental Pipe Line Company was organized and that they got a contract, that I would resign. 8 The Continental Oil Company is not involved herein. Although the record does not de- scribe the exact connection between the two companies , it appears that the Continental Oil Company produces and refines the oil which is transported by the respondent. It was stipulated at the hearing that the respondent operates the pipe line independently. 4 Employee Anderson , a witness called by the respondent , so testified. Operator Clark also a witness for the respondent , testified that Greenwell had told him of his wishes. 5 Greenwell himself so testified. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He then left the meeting. After Greenwell withdrew, some employee suggested that a secret ballot be taken. Employee James M. Pumpelly stood up, declared himself as opposed to such secrecy, and asked everybody who was "for the union" to stand up. No vote was taken. Finally the organizer asked those who wanted to sign an application card to "come to the front". 1umpelly was the only employee present who went to the front and signed a cards 2. Greenwell continues campaign to discourage organization After the McAllen meeting Greenwell informed numerous employees of his dis- approval of organized labor. In August or September, 1944, the superintendent went to the home of station engineer Ralph W. Stevens, told him he was "against organized labor," and stated that he would quit it the "boys" joined. In the latter part of March 1945, after organizational efforts were renewed, Greenwell came to Stevens while the latter was at work, announced that he was "going around talking to the boys," because he understood some of them were not satisfied . He repeated that he was against organization , and declared that if there ever was a union contract he would make Stevens "wipe the motors" throughout his shift, if there was nothing else to do at the station. He further declared that if the employees did not live up to any such contract he would lay them off.7 Greenwell inquired of employee Marshall Story as to whether or not two other employees were members of the Union. He asked employee Ponce McNulty if he had been approached by the union organizer . He told employee W. W. Files that he was "against" organization of the pipe line workers.' 3. The discriminatory discharge of James M . Pumpelly (a) Events surrounding the discharge Until the termination of his employment on September 1, 1944, James M. Pumpelly had worked continuously for the respondent, without a day's absence, since January 1923. During this long period of uninterrupted service he held many positions of responsibility in several different areas operated by the respondent. Sometime in 1942 Pumpelly was transferred to Greenwell's jurisdiction,' and became the receipt and delivery gauger at the Brownsville terminal. A few days before the McAllen organizational meeting, above described, Green- well asked Pumpelly if he was going to join the Union, and informed him that if the "boys" joined he would quit. Pumpelly told the superintendent that if the others wanted the Union lie would go along with them Gieenwell replied that employees who joined would be "run off", or transferred to Wyoming. The respondent operates a pipe line in Wyoming. As described above, Pumpelly attended the McAllen meeting, and was the only employee to come forward at the organizer's request and sign an application card. Although it appears that Greenwell left the meeting before Pumpelly's 6 Pumpelly's testimony as to his part in the meeting is undisputed. 7 Greenwell did not deny having thus made his antipathy toward self -organization known to Stevens 8 The findings rest upon the testimony of the employees involved, who were witnesses called by the respondent. 9 The record does not establish accurately when Pumpelly came to the McAllen District. From Greenwell's testimony, however, it appears that, at the time his employment was terminated , Pumpelly had been at Brownsville about 2 years. CONTINENTAL PIPE LINE COMPANY 395 action, the undisputed fact that the superintendent thereafter queried others as to who were members is persuasive, and the Trial Examiner finds that Greenwell was informed of Pumpelly's application. A few days after the meeting Greenwell visited the terminal at Brownsville and went cursing about the office. Pumpelly asked if there was something wrong with his work. When the superintendent said that his work was all right, Pum- pelly asked what was wrong. Greenwell did not answer, but left, still cursing. A week or so later Greenwell returned and conducted himself similarly. This time he explained, upon Pumpelly's inquiry, that it was because of the employee's "God- damned attitude". On several occasions thereafter Greenwell went to the ter- minal and cursed at Pumpelly. On August 31 he again appeared there, and again cursed Pumpelly's "attitude." That evening Pumpelly telephoned to the respondent's vice-president, A. C. Wilkinson, told him it was impossible to continue at Brownsville and asked to be transferred. Wilkinson replied that he would see Greenwell and let him know within a week. A few minutes later Green- well telephoned to Pumpelly and berated him for turning in an overtime claim, declaring that he had not worked the time appearing thereon. Pumpelly assured him that he had turned in the exact amount of such overtime, and that he had done so at Greenwell's own instructions. Greenwell then called him a "God damned liar." Pumpelly replied, "Greenwell, it looks like this is the end of it." The superintendent said : "What else can I do to get rid of you ; you're fired." Pum- pelly countered, "You're not firing me; I'm quitting." The superintendent insisted, "No, you're fired." The next day Pumpelly was paid off. Several months later he asked Green- well for reemployment, but was refused.'O (b) The 'espondent's contentions as to Punpelly's discharge Although the respondent, by its motion to refile its answer to cover the complaint as amended to include Pumpelly's discharge, in effect denied that the discharge was because of union activities, no affirmative reason was advanced by the respondent until after the employee himself had testified. And although Greenwell's testimony is confused and conflicting, it appears to be his contention that Pumpelly voluntarily quit his job and was not discharged. When questioned directly by counsel for the respondent on the point, Greenwell stated : "He resigned " He later testified, however, on cross examination, as follows : Q. . . . What was the reason you gave for Mr. Pumpelly leaving the employment of the company if he left it without being discharged? A. He padded his car mileage and turned in an excessive amount of over- time which could have been taken off. Q. When did you last get on him about that? A. The day he was discharged. Thereafter Greenwell again changed his position, in response to questions of the Trial Examiner, and stated: (1) that Pumpelly quit; (2) that if he had not quit he would still have been employed at Brownsville; and (3) that the matter of car mileage had nothing to do with his discharge, quitting, or being refused reinstatement. w The findings as to Gieenwell s interviews v 0th Pumpelly are based mainly upon the latter's credible testimony, and upon an unaltered portion of a document prepared upon Greenwell's instructions on or about September 1, 1944, which is described fully in the section next following above For reasons set forth in the same section, the Trial Ex- aminer is unable to rely upon Greenwell's testimony where unsupported by credible evidence. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Before finally admitting that the item of car mileage had nothing to do with Pumpelly's leaving the respondent's service, Greenwell testified at considerable length to the effect that, when first employed at Brownsville, Pumpelly had used, contrary to instructions, a long route instead of a short one, in driving his own car tor reach a point in the territory under his jurisdiction as gauger, and had charged the respondent for such extra mileage. The superintendent admitted, however, that Pumpelly had used this route for at least 7 months before he spoke to him about it, that shortly thereafter a company-owned car had been assigned to the employee, and that for at least a year before September 1, 1944, there could have been no complaints about mileage. The record is without any evidence to support, Green well's statement, quoted above, that Pumpelly's car mileage had been "padded", in the sense that he had claimed credit for distances not covered on company business. As to Greenwell's claim that Pumpelly had turned in claims for excessive overtime, the superintendent stated that it was frequently necessary for the gauger to work overtime hours when tankers were being loaded at Brownsville, but that Pumpelly had, on occasions, failed to take time off later in the week in order to avoid being paid time-and-a-half for hours exceeding 48 within the week. Greenwell testified that he spoke to Pumpelly about this matter, but made no claim either that Pumpelly had recorded time for work not performed, or that he had ever told Pumpelly he would be disciplined or discharged if he failed to keep his work record within a 48-hour limit. As to the events of September 1, 1944, Greenwell testified that after he had told Pumpelly that his time sheet had too much overtime on it, the employee promptly resigned. He further testified that on the same day he had instructed a clerk in his office, D. W. Jackson, to make out a "termination record" for Pumpelly and to note thereon that Pumpelly had resigned as dissatisfied. At this point in his testimony a document, identified by Greenwell as being the record thus made by his clerk, was introduced into evidence. In the space alloted to the "reason for termination", appears the typewritten words : Resigned-Dissatisfied It is visually plain, however, and the Trial Examiner finds, that the above- quoted notation was not the original entry in this space. This finding is based upon several factors, including: (1) the visual evidence of an erasure of some word which originally appeared under "Resigned"; (2) the fact that the words "Resigned-Dissatisfied" were not only written with a typewriter ribbon while other entries upon the document are in carbon, but also that they were written with a typewriter equipped with Standard type, while all other entries were made with a typewriter equipped with Elite type; and (3) the admission of Jackson that he had changed the entry originally made. The confused and contradictory testimony of both Greenwell and Jackson, when asked to explain the altered document, casts discredit upon both the document itself and the entire testimony of both witnesses .u ti For example, Jackson testified that he had first inserted "Quit" in this space, but that he had changed it, upon GieenweIl's instiuctions, to "Resigned " He later contradicted this testimony, stating that he had changed "Quit" to "Resigned" before submitting the document to Greenwell for his signature At one point in his testimony, Jackson stated that he had used the same typewriter for all entries, but later changed this testimony when it was pointed out to him that two different typewriter types had been used. Thereafter Jackson declared that lie had not inserted "Dissatisfied" on the document and did not know who did. Greenwell claimed that he knew nothing about the alterations on the document, or when the alterations had been made, but snsssted that they had been made before the hearing Whatever word may have been first written and erased, it clearly was not "Quit," and was a longer word than " Resigned," since the erasure and indentations of type extend beyond the superimposed word "Resigned" at both extremities. CONTINENTAL PIPE LINE COMPANY 397 An unaltered entry on the same document is in significant support of Pum- pelly's testimony that Greenwell, after the McAllen meeting, had repeatedly cursed his "attitude". This entry appears in answer to the printed question: "Would you rehire?", and is: "Yes, if attitude changes." [Italics added.] No evidence, except Greenwell's unsupported and untrustworthy testimony, was adduced to show that Pumpelly at any time had violated overtime instruc. tions or had submitted a claim for time not worked. Pumpelly's long and unin- terrupted service of more than twenty years with the respondent speaks more convincingly in behalf of his credibility as to events leading up to his discharge than does the testimony of the superintendent, who produced at the hearing an obviously altered document in an attempt to support his testimony that Pumpelly quit" The Trial Examiner finds Greenwell's contentions to be without merit. (c) Conclusions as to Pumpelly It has been found that Greenwell's testimony as to the circumstances of Pum- pelly's leaving the respondent's employment is untrustworthy and without merit. No credible evidence was offered by the respondent to show that Pumpelly was discharged for a justifiable cause or that he quit voluntarily. It has also been found that Greenwell began cursing Pumpelly's "attitude" immediately after the McAllen meeting, when this employee alone openly advo- cated organization in the face of the superintendent's announced opposition. The Trial Examiner concludes and finds that Pumpelly was actually discharged by Greenwell on September 1, 1944, and that he was discriminatorily discharged because of his union activities. 4. The discriminatory discharge of Ralph King (a) Events surrounding the discharge At the time of his discharge on April 19, 1945, Ralph King had worked as a gauger for the respondent or its predecessors for seven years.'g The record con- lains no evidence that in this period he had ever been disciplined, or threatened with discipline, for failure to perform his work properly. On the morning of April 19, 1945, however, Superintendent Greenwell hid in bushes near a battery of tanks where King was working, observed that King did not gauge the tanks in the manner prescribed by written rules, and summarily discharged him. For several months before his discharge King and one or two other gaugers worked in the Rincon field under District Gauger Moffet. As district gauger it was Moffett's responsibility to assign his assistant gaugers to various parts of the field to test and run batteries of oil tanks and to instruct them as to the handling of their jobs. For some weeks before April 19 Moffet was intermittently ill, and later died. In February 1945, Greenwell told King that in the event Alofeet was unable to return he would be given the district gauger's job. Accord- ing to the superintendent's own testimony it was his intention at that time to promote King to this position. 12 From his observation of counsel for the respondent and Greenwell at the time the docu- ment was offered, the Trial Examiner does not believe that Vlr Zwick was aware that its entries. had been altered. His only question regarding it, after the alteration had been discovered by counsel for the Board, was to ask Jackson if be had queried him at all about it before it was offered. Jackson answered in the negative, and the Trial Examiner accepts his denial as true ii King began to work in this capacity for the Valley Pipe Line in 1938. This pipe line wits later sold to other interests, and in April, 1942, was taken over by the Continental Pipe Line Company. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the latter part of February, as noted heretofore, union activity was revived in this area. Shortly after it began Greenwell told King that he had heard "talk" of the Union "going around", but that he believed the "boys" would stay with him as they had the previous year. On March 21 , King was elected vice-president of the local, the highest office held by a pipe line employee. At about the same time Moffett reported to King that he had told Greenwell, upon the latter's direct inquiry, that King and another gauger had joined the Union. And a few days later, while King was visiting at Moffett's home, the latter told him that the superintendent had said he ( King ) would not be given the district gauger's job unless he quit the Union. In view of Greenwell's openly expressed hostility toward the Union, as heretofore found, the Trial Examiner is convinced and finds that the superintendent made the statements to Moffett as reported through the witness King." On April 13 Greenwell sent Jack Mayes, a gauger from another field, to take Moffett's place. According to the testimony of Greenwell and Mayes, on April 16 or 17 Mayes asked Greenwell if the oil should not be "run" in the Rincon field as in other fields, and intimated that it was not being gauged properly at Rincon. Both Greenwell and Mayes denied that King's name was mentioned. On the morning of April 19 Greenwell went to the Rincon field, bid in bushes and watched King run a certain battery of tanks. King, according to his own testimony, did not gauge them properly on this occasion, and he was immediately thereafter discharged. (b) The respondent's contentions as to King It is the respondent's contention that King's violation of gauging rules on April 19 was the only reason for his discharge. The Board, in effect, concedes that King failed to follow written instructions on this and many other occasions. In short, the rules prescribed a certain procedure of gauging and testing of oil before it should be permitted to run into the line Since there is no factual dispute either as to the nature of the rules or as to King's failure to abide by them on April 19, it is unnecessary here to describe in detail the method set up by the company's instructions. Greenwell as a witness claimed, in effect, that King's action was a serious breach of regulations It is not within the Trial Examiner's province to determine whether or not an operating rule is good or bad, but whether or not, in view of Greenwell's contention, King's breach of regu- lations was the real reason for his discharge . Whatever the inherent importance or necessity for prescribing a certain method of gauging and testing, the testi- mony of many witnesses , both for the Board and for the respondent, including a former supervisor of the Rincon field, establishes beyond question that for a long period, until April 19, 1945, it had been the common practice for all gaugers to ignore the rules at least half of the time and to use a shorter method referred to by them as "boiler-housing." District gaugers also boiler-housed, and only cautioned the men under them not to get "caught at it" About once a year a chief gauger visited the fields and watched the gaugers "work" a tank, but there is no evidence that he ever accused any of them of improperly gauging or that he ever reported incidents of improper gauging to Greenwell. Nor is there any evidence that any employee, exc,pt King, has ever been discharged or disciplined in any way for violating the gauging rules. Greenwell's testimony on "boiler housing" generally and oil King's breach of the rules is confused and inconsistent. At one point lie testified that he had had no knowledge of how oil was being "run" until a day or two before he 16 Greenwell denied making such statements to Moffett, who died some time before the hearing opened, but was not questioned as to whether or not he had told King that he be- lieved the "boys" would, in effect, remain out of the Union as they had the year before CONTINENTAL PIPE LINE COMPANY 399 discharged King At another point, however, he testified that he had suspected King of gauging improperly in the fall of 1944, because he had then seen him wearing "clean" khakis. Whatever his knowledge or suspicion , he admitted that he had never warned King about the gauging practice. Greenwell, further- more, failed to explain reasonably why, if he had suspected King of violating rules in the fall of 1944, he (1) made no effort to check upon his suspicion at that time and (21 told King in February that he was in line for the district ganger's job. or (lid he explain, as a witness, why he had checked only on King, on April 19, and not upon the two other gaugers also working in the same field. Whatever may have been the actual importance of the rules or the seriousness of its breach, Greenwell's conduct, above described, shows that lie did not consider King's possible violation as deserving of any investigation, or even of warning, until after the employee became a union leader This finding rests firmly upon the facts. (1) that Greenwell had suspected King of violating the rule in the fall of 1944, but made no effort to check his suspicion; (2) that still without investi- gation he told King in February that he was in line for promotion to Moffett's job; and (3) that in April, after King had become a union leader despite the threat transmitted through Moffett, Greenwell not only sent Mayes into the field to relieve Moffett but for the first time made a specific effort to catch King in dereliction of his duties. Greenwell's action on April 19 is more reasonably to be interpreted as designed to catch King and to discharge him, than to assure the proper gauging of oil (e) Conclusions as to the discharge The Trial Examiner is convinced, and finds, that the real reason for King's discharge was his union activity and leadership, and not his violation of rules. Greenwell's course of conduct with respect to King, before the gauger became vice-president of the Union, is in marked contrast with that which followed his election to that office. The superintendent's contrasting conduct is of a pattern with that engaged in with respect to Pumpelly, and clearly was designed to carry out his campaign of discouraging union membership. 5. Conclusions in general The Trial Examiner concludes and finds that by its discharge of James M. Pumpelly and Ralph King, because of their union activities, the respondent discriminated as to their hire and tenure of employment, thereby discouraging membership in the Union. It is likewise concluded and found that by Greenwell's conduct, including his discharge of the two above-named employees, his attending the union meeting in 1944 despite the protest of the union organizer, his speech to the employees discouraging self-organization and threatening to quit if they organized, his questioning of employees as to their union membership, and his threats of re- prisals if they did not quit the Union, the respondent has interfered with, restrained, and coerced its employees in the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF TILE UNFAIR LABOa PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described 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. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Since the undersigned has found that the respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent discriminated as to the hire and tenure of employment of James M. Pumpelly on September 1, 1944, and of Ralph King on April 19, 1945. In order to effectuate the purposes and policies of the Act, it will be recommended that the respondent offer James M. Pumpelly and Ralph King immediate reinstatement to their former or substantially equivalent po- sitions, without prejudice to their seniority and other rights and privileges. It will also be recommended that the respondent make each of the above-named employees whole for any loss of pay he has suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of the dis- charge to the date of the offer of reinstatement, less his net earnings during this period 16 The recommendation that the respondent cease and desist from certain unfair labor practices is also predicated upon the finding that the respondent's whole course of conduct and, in particular, the discharges of Pumpelly and King, discloses a purpose to defeat self-organization and its objects among the employees. As the Circuit Court of Appeals for the Fourth Circuit has stated, the "discriminatory discharge of an employee ... goes to the very heart of the Act."" Because of the respondent's unlawful conduct and its underlying purpose, the undersigned is convinced that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed, and that danger of their commission in the future is to be anticipated from the respondent's conduct in the past.19 The preventive purpose of the Act will be thwarted unless the reuommended order is coextensive with the threat. In order, therefore, to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby to minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that the respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following : CONCLUSIONS OF LAW 1. International Union of Operating Engineers, Local No. 550, A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 16 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge, and the subsequent necessity for seeking employment elsewhere . See Matter of Crossett Lumber Company, 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 Y. N. L. R B., 311 U. S. 7. 'O N. L. R. B. v. Entwhistle Manufacturing Company, 120 F. (2d) 532 , 536 (C C A. 4). See also , N. L. R. B. v. Automotive Maintenance Machinery Company, 116 F (2d) 350, 353 (C. C. A. 7), where the Circuit Court of Appeals for the Seventh Circuit observed: "No more effective form of intimidation nor one more violative of the N. L. it . Act can he conceived than discharge of an employee because he joined a union 17 N. L. R. B. v. Express Publishing Company , 312 U. S. 426. CONTINENTAL PIPE LINE COMPANY 401 2. By discriminating in regard to the hire and tenure of employment of James M Pumpelly and Ralph King, thereby discouraging membership in International Union of Operating Engineers, Local No. 550, A. F. L., the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed 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 commerce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the Trial Examiner recommends that the respondent, Continental Pipe Line Com- pany, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in International Union of Operating Engi- neers, Local No. 550, A. F. L, by discriminatorily discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment ; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organi- zations, to join or assist International Union of Operating Engineers, Local No. 550, A. F. L., or any other labor organization, 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 guar- anteed in Section 7 of the Act. 2. Take the following affirmative action, which the Trial Examiner finds will effectuate the policies of the Act : (a) Offer to James M. Pumpelly and Ralph King immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges ; (b) Make whole the above-named employees 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 but for the respondent's discrimination against him, in the manner set forth in the Section entitled "The remedy" ; (c) Post at its various stations throughout the McAllen District, Texas, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director of the Sixteenth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material ; (d) Notify the Regional Director for the Sixteenth Region in writing within ten (10) days from the date of the receipt of the Intermediate Report, what steps the respondent has taken to comply herewith. 692148-46-vol 67-27 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is further recommended that unless on or before ten days from the receipt of this Intermediate Report, the respondent notifies the said Regional Director in writing that it will comply with the foregoing recommendations, 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 3, as amended, effective November 27, 1945, any party or counsel for the Board 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 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington, 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, Immediately upon the filing of such state- ment of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. 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. C. W. WHITTEMORE, Trial Examiner. Dated January 7, 1945.