Northern Natural Gas Co.

NORTHERN NATURAL GAS CO. 549 Northern Natural ' Gas Company and District 118, International Association ' of Machinists and Aero- space Workers, AFL-CIO. Case 18-CA-3014 August 6, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On February 26, 1971, Trial Examiner 'Lloyd Buchanan issued his Decision in the , above-entitled proceeding, finding that, the Respondent had not engaged, in and was-not engaging in: certain unfair labor practices within' the, meaning of the National Labor Relations Act, as ' amended, and recommend- ing that the complaint be dismissed in its entirety, as set forth in the attached' Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of,Section„3(b) of the National. Labor Relations Act, as amended, the National Labor Relations, Board, has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner` made at the hearing and finds that no prejudicial error was P committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's` Decision, the' exceptions and briefs; and the entire record in the case, and hereby ' adopts the findings, conclusions, 'and recommendations of the Trial Examiner, ORDER Pursuant to, Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- edOrder of the TrialExaminer and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. - " TRIAL EXAMINER'S DECISION LLOYD BucRANAN, Trial Examiner: The complaint herein (issued November 2, 1970; charge filed June 10, 1970), as amended, alleges that the Company has violated Section 8(aX3) of , the National Labor Relations Act, as amended, 73 Stat. 519, by discharging Francis J. Carpenter on or about June 9, 1970, because of his union membership and support, and Section 8(a)(1) by said act and by unlawfully interrogating its employees concerning their protected concerted activities. The answer, as amended, denies the allegations of violation and alleges that Carpenter was discharged because of his refusal and failure 192 NLRB No. 92 to perform his responsibilities and because of repeated misconduct. The case was tried before me, at Boone, Iowa, on December 17 and 18, 1970. Counsel,were heard in- oral argument at the conclusion of the trial. Pursuant to leave granted to all parties, briefs have been filed by the General Counsel and the Company. Upon the entire record, in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW I. THE COMPANY'S BUSINESS AND THE' LABOR ORGANIZATION INVOLVED The facts concerning the Company's status as a Delaware corporation, the nature and extent of its business as a public utility company, and, its engagement in commerce within the meaning of the Act; are, admitted; I, find and conclude accordingly. I also, find and conclude that, as admitted, the Union is a labor organization, within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. The Alleged Violation of Section 8(a)(l) In January 1970, Kruse, an employee at the Company's Ogden plant, went to the Union business office in Des Moines, , and at that time and again in April discussed arrangements for , a meeting with the Ogden plant employers. Notices of this meeting appeared on plant bulletin boards; it was referred to as a Beer Bust. The meeting was held, on May 21 in the American Legion Hall in Ogden, 15 to 20 employees being present .but Kruse himself not attending. From this point on, Carpenter played the leading role in organizational activities., Union authorization cards were signed at the meeting, and Carpenter solicited and returned to the Union additional cards both before and after his discharge on June 9. Testimony concerning various intervening events must be considered on the question of company knowledge of Carpenter's union activities.' The General Counsel's tenacity and persistence, which might be exercised on a point with greater merit, although they would then perhaps be unnecessary, were exemplified as he' maintained both early and late - in the trial that company knowledge could be found on the basis of a conversation between Carpenter and employee Anglin. About the middle of April, Carpenter told Anglin that the men were dissatisfied and thought they should get a union to help them. Bearing in mind that in 1967 and 1968; when he had told Anglin about other union activity, the latter had, said that he would have to report it, Carpenter now' observed that Anglin might like to report this convetstion also to Bacon, the- Company's area manager. At the earlier time,, several years before, and until March 30,1969; Anglin was a supervisor at'Ogden., The Company points out that Anglin has since been employed at various locations as an inspector and coordinator but as a rank-and-file employee. With the Company's denial that he is now a supervisor, we have no evidence of such status after March 30, 1969. We 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have no more than the General Counsel's argument, of continuance of status in the face of Carpenter's own testimony on 'direct examination, when he had-another purpose, that several other employees were reduced in status including one who,' like Anglin, had been district superintendent and "went down" to the'lowest rank-and- file job classification. Beginning in April, Carpenter spoke, to Sedlacek, `the Company's evaluation technician in charge of equipment" planning and technical training, concerning union activity; ands one time- offered Sedlacek a union card, which the latter rejected. While he does not have the right to hire or fire or otherwise directly supervise employees, it might be inferred that Sedlacek does, have sufficient authority to direct employees or that he works closely enough with those in authority to impute to,the Company' his knowledge of Carpenter's union activity. Sedlacek reports directly -"to- Coffman, the Company's directory of technical services, on the progress of men in training., ` ` One- might be inclined to believe that Sedlacek, actively training' top' technicians throughout the Des Moines area, not only reports on their progress as he'testified, but also makes recommendations concerning them and perhaps even effective recommendations, `in which case he would actually'be a supervisor- within the meaning of the Act. On the other hand, if it be inferred from this that the Company, through Sedlacek, had early knowledge of Carpenter's organizational activity, it may be noted' that, despite Carpenter's conduct at a meeting on May 1, of which more below, for which he was reprimanded by letter on May 4, the Company 'did-not at that time discharge Carpenter. About,May 11, Carpenter asked Supervisor Headrick for permission to hold 'a meeting in the Company's basement room on May 14. The allegation of interrogation is-'based' on this- incident,' and will be considered below.' `I do not rely on this for a" finding of company knowledge ' of Carpenter's union activities. Whatever weight attached to the testimony already cited on the question of company knowledge, the Company has approximately 50 employees in Ogden, and such knowledge may be inferred on the basis of the "small plant" rule even if the,extent of Carpenter's card solicitation activities at the plant is not clear. r , If , various witnesses at times indicated unreliability the facts generally emerge quite clearly from the pro and con presentation., I do not, credit the Company's denial of knowledge of Carpenter's union , activity. Leading to a conclusion further-, unfavorable to the Company and arousing suspicion is, the citation .of many ,past shortcom- ings and misdeeds on Carpenter's part with only; some oral criticism,and.two warning letters, on March 3,1969, when there was no union activity or apparent suspicion thereof, and May -4, 1970„ respectively: Even the later ,letter was submerged at the, trial by detailed- references to prior shortcomings although in this letter-on May 4 the Company clearly warned Carpenter of possible discharged he did not perform his duties satisfactorily. By the'time the second There is confusion m this connection . Employee Claussen, as we shall see, testified to interrogation by Headrick in late April , or early May. Carpenter testified to interrogation by District Manager Henriksen in May. union meeting was held, on July 21, ,Carpenter w as;no longer in the Company's employ. The, complicated defense, not limited to events,which immediately preceded Carpenter's` discharge and which would themselves have justified it, made it necessary to go into earlier incidents by way of explanation and raised the questions of condonation or acceptance by, the Company. To the extent that earlier incidents, testified to in detail on both sides, are relied on to show unfair treatment of Carpenter, they preceded his union" activity or company knowledge thereof and show that, if 'he was "persecuted," it was not discriminatory within the meaning of the Act. In this` category would fall Carpenter's testimony that, early in April,' Henriksen told him that he could not,have, the field technician trainee job because the Company did notlike his "attitude." Bacon had, earlier . reminded' Henriksen that, because of Carpenter's behavior and attitude toward others,--he would not adequately represent the Company, to outsiders as that job required. His job abolished (as it was at the other plants of the Company), Carpenter had been offered another atthe same rate. In January. he had told another'' ' Ioyee, that he pnip would like to have the lower paying job which theo,ther was performing. The evidence shows that on his new job he was thereafter both unsatisfactory and unwilling to `perform. There-is no evidence that any other job was available and that Carpenter was discriminatorily refused such, whether in January or thereafter. Nor,- whatever his complaints, could discrimination be found in any early company refusal of an assignment. H-ienriksen's comment early in April•concerning,Carpen- ter's attitude was further, supported on June 1 when,,in the face of the, former's attempt to arouse his. interest, Carpenter replied that he was not interested in his work and would not do,a good' job. With this (after carpenter's threat, noted below, on June 5 with respect to employment of Negroes), ;Henriksen testified that he had no alternative but' to terminate Carpenter's employment. On the following Monday, June 8, he called Bacon and later 'that `day received the latter's permission to discharge Carpenter. On the morning of June 9 -Henriksen went to Bacon's office in Des Moines, got Carpenter's ' check, returned to Boone, and discharged Carpenter. I - The attempts to excuse or justify Carpenter's poor performance in the face-of his admitted, lack of interest were patently insufficient. Accepting the testimony by Floyd, the Company's evaluation engineer, I do not rely on the hearsay memorandum of June 5 (which was not offered or received or shown to have come to the attention of Henriksen or,Bacon by June 9) by one who the Company claims is not a supervisor. To recite other incidents and events would be merely to describe Carptenter's consistentand complete self-luxation, which was formalized on June 9. The,very record of never having discharged an employee, cited by the General- Counsel, suggests a, company, attitude which wasreflectedin the patient acceptance of Carpenter's Headrick testified to such a conversation with Claussen and Carpenter im May.. The allegation is of interrogation of employees in April by 'Headricl : NORTHERN NATURAL GAS CO. 551 shortcomings., Thus, in, addition to reference to a May 1 safety meeting which prompted the letter of May 4, we heard about . an occasion in January when Carpenter presumed to cut a sling which other employees had just used and laid aside. The General Counsel conjured up a picture of dire results if the sling were used again, and sought to justify Carpenter's action by reference to a possible;accident. Indeed several times atthe trial reference was made to - a, fatal earlier accident; - but as finally explained; that was in no way related to the situation before us but had 2 years before been connected with the work of an independent contractor. What the General Counsel has labeled "courageous" and indicative of leadership was aggressive and presumptuous. On an assumption that the men on the job were incompetent or might otherwise use the sling again, Carpenter could in the spirit of helpfulness, certainly not in a "take charge" manner, have spoken to employees Westberg or Landals, who were working on that job. There is no suggestion that these latter would have willfully risked injury or thatitwould have been nesessary for Carpenter to report the matter ,to his supervisor on their failure to act. If this was "in accordance with recommended practice," it had -nowhere been recommended that Carpenter do it. Clearly anything but self-effacing, Carpenter asserted authority which he did not have and took action beyond his authority.,ne good faithwhich the General Counsel would put on that action was obliterated by the unnecessary assertiveness which Carpenter displayed. It-is, and should have been to him were he concerned with others, understandable that Westberg, submitting to his own supervisor, resented an intrusion by a fellow worker as here occurred. Testifying in Carpenter's behalf, Landaals told us that Carpenter "came along and cut the strap." Carpenter assumed the prerogative of action. Whatever words were uttered followed the act as an argument ensued between Carpenter and Westberg. Capable of doing a good mechanical or technical job, Carpenter was assertive to the point of brashness.2 With so much made of it at the trial, this cited incident can at most portray Carpenter's manner generally. Henriksen denied knowledge of it: it did not prompt or lead to the discharge. Again, Carpenter was a good mechanic. But he exhibited an aggravating fascination for other people's affairs and a tectonic tendency to impose his own sense of afflatus. Regardless of the feelings of those with whom he worked, Carpenter took charge and was militant to the point that he could not be entrusted with the authority which he assumed. The Company's offer of the job of engine technician is quite understandable, considering Carpenter's mechanical and personal qualifications. If not acted upon until matters came to a head nondiscriminatorily, any earlier instances of officious and disruptive conduct of which the Company was aware remained reasons. There was no shifting of reasons or 2 The record includes reference to several other instances : One when he charged brown-nosing to an employee with whom he had no close relationship; another when he replied in kind but aggessively to Bacon; a third when he prompted employee Wingfield to complain about Carpenter's interfering with his handling of certain controls. 3 I do not rely on hearsay testimony that other employees complained concerning Carpenter's conduct, Henriksen not having checked such position by the Company even if citation of so many earlier facts beclouded and complicated the issue: with ,those earlier reasons as background, an employer reluctant--to take such action was moved by later -events to discharge Carpenter. Whatever sufficient and nondiscriminatory reason the Company may have had for discharging Carpenter earlier, and although it has assigned him to another job and,sought to persuade him to remain at it, a new and very important element was added on Friday, June 5. Leaving aside all equivocal factors , and arguments, it appears that, with adequate valid reason to discharge Carpenter and matters coming to a head as he failed to perform adequately the job fairly assigned to him, the triggering factor was on that day, injected when the Company indicated its intent to abide by: the law and an Executive order issued from the_ White House- Carpenter was not engaged in protected concerted activity when he announced that he would not allow the, Company to' bring Negroes into Ogden, if it did, he:would see to it that its taxes were-increased.-This was hitting the Company in a most vulnerable, spot, andwith a weapon or, threat which assumed prior illegality with 44pect to taxes or threatened such for the ,future. Whatever, Carpenter's earlier shortcomings,3 he was now clearly insubordinate and offensive. We thus have evidence of a new and compelling reason for discharge based on Carpenter's performance and expressed attitude toward his work; and furtherreason in his racial threat, to which a response (not so claimed.by the Company although it is embraced .generally in the charges of offensive behavior and insubordination) of discharge could hardly be called discriminatory.. - If the Company, unwarrantly fearful of consequences, falsely denied early knowledge of Carpenter's union activity, that would indeed serve to cast suspicion on its other testimony and its position on the issues. But its reluctance to discharge and its failure to do so because of Carpenter's poor work after knowledge could be inferred (as it would be under the small plant rule) on the basis of the May 14 meeting and perhaps of earlier events counterbalances such suspicion; and Carpenter's indicated refusal on June 1 to perform his work properly followed by his threat on June 5 warranted and virtually compelled his discharge. I credit the testimony that Carpenter's offensive behavior and refusal to perform his work alone caused the Company to terminate his employment. Carpenter's offensiveness to other employees was not in fact a reason for his discharge. It did lead to the Company's refusal to assign him to a job which he preferred. But that decision was communicated to him as early as April 4, as he himself testified, and antedated his union activity and company knowledge thereof.4 It intrudes on our considera- tion to the extent that, because he was dissatisfied, it contributed to his failure to do his work properly . To that point there was no unlawful discrimination. With his stated complaints. 4 It may be noted that it is not even charged that at any time after union activities commenced and knowledge could be inferred, either before or after Carpenter's discharge, the Company otherwise unlawfully discouraged union support or interfered with employees. If proclivity to violate be elsewhere deemed relevant, the history here and contemporane- ous events suggest a contrary conclusion. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refusal on June 1 to perform, itself insubordinate and offensive, and his threat on June 5, he offered full provocation wholly, aside from and without any back- ground or secondary cause connected with union activity. I find and conclude that Carpenter's discharge was not discriminatory., This is aside from his refusal toaaccept'the engine techinician , job. As for failure to place ;him elsewhere, there is no evidence of another available job and discriminatory refusal to assign him. B. The Alleged ,Independent Violation of Section 8(a)(1) Claussen testified that in the latter part of April or the first part of May, a few days before the meeting in the plant basement room, Headrick asked him who had set up the meeting and whether Carpenter or he, himself had done it. Claussen's reply was that the men had themselves decided to have''a 'meting; he denied that either Carpenter or he had 'init'iated it: Carpenter testified that about May 14 he asked Henriksen 'for permission to use the basement room for a meeting of employees, and'that when Henriksen asked what the meeting would be about; he replied that it would be "Just a, "bitching session." Headrick testified that on May 11 both''Carpenter and Claussen spoke to him about using the basement room, that he asked what problems the men had, and, that Claussen replied that one problem was communication;'and that Carpenter also suggested that the supervisors not attend but that they be` available for questions later. Such 'a-meeting did'not indicate, organizational activity which 'the Company might oppose. On the contrary problems and that he welcomed the opportunity to talk to the men and answer their questions as,-,had, been done: before. Whatever reward is merited by counsel's-assiduous= ness in scraping, up this item,- the inclusion .of such °an allegation warrants none. There was certainly no- suggestion that this meeting was connected, with organizational, activities, and Headrick cannot be found to have interfered with,such activities., Indeed both Headrick and Henriksen, who ,granted permission for use.of the meeting room, had encouraged such meetings and subsequent discussion between the employees and management., Whatever the dates and the principals involved, no`violation`has here been shown. No more indicative of an improper' inquiry was Andersen's questions to Carpenter with respect,to the May- 21 meeting, ". . what we was going to have.,at the meeting„' with Carpenter's reply, that,they were going to have coldcuts and beer. Telling Andersen that her was welcome to attend, Carpenter allegedly added that a: union' representative would be- there. Carpenter: appeared at this point to add this -last -by way clinching the element of company knowledge, and I find ;this-bit of his testimony. as r unreliable as the Company's denial of knowledge of, union activity. With,-this comment on.his credibility, there is no need to recite Carpenter's pitiful attempts torexplain other untoward remarks. " - ' Upon .the foregoing findings of- fact,,; conclusions of law, and the entire record, and pursuant to Section 10(c) of the. Act, I hereby issue the-following recommended: _ ORDER, Headrick testified that it' was his responsiblity to check The complaint is dismissed in its entire S Several instances , of alleged interrogation are urged in the General Counsel's brief,although they were neither alleged nor litigated.