Petrolane Alaska Gas Service, Inc.

68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Petrolane Alaska Gas Service, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Local 959. Case 19- CA-5992 July 27, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 13, 1973, Administrative Law Judge Richard D. Taplitz issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and General Counsel filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Ad- ministrative Law Judge's Decision in light of the ex- ceptions and briefs and has decided to affirm the Administrative Law Judge's rulings, findings,' and conclusions and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Petrolane Alaska Gas Service, Inc., Ju- neau, Alaska, its officers, agents, successors, and as- signs, shall take the action set forth in the Administrative Law Judge's said recommended Or- der. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings General Counsel excepts to the Administrative Law Judge's treatment of Dolan's testimony describing what happened on the evening of July 19 when he was assisting Christensen in disconnecting the tractor from the trailer This process involved Christensen's trying to Jerk the tractor free of the trailer by driving the truck forward in short spurts The Administrative Law Judge stated that he could not fully credit Dolan's testimony that Christensen drove the tractor forward on the basis of hand signals relayed by Dolan from Sexton, finding such testimony inconsistent not only with that of Sexton, but also with that of Christensen and previous testimony that Dolan himself had given Thus, combining what he considered to be the credible portions of each of the three witnesses' testimony, the Administrative Law Judge found, inter aim, that Dolan saw Sexton motioning to stop after the truck was jerked forward for a second time and that he "either negligently failed to react to Sexton's expressed agitation or simply ignored it" in conveying instructions to Christensen to jerk the tractor ahead for a third time General Counsel contends that this finding was premised solely on the Administrative Law Judge's misreading of portions of Dolan's testimony, which led the Adminis- trative Law Judge to erroneously conclude that Dolan's testimony was incon- sistent with other testimony he gave and testimony given by Christensen, and thus, largely as a result of that erroneous conclusion, to find that the two employees acted negligently in connection with the July 19 incident We have studied Dolan's testimony carefully, and unlike the Administra- tive Law Judge, find no inconsistency in Dolan's testimony in this regard and testimony which he had previously given or that given by Christensen It is not clear here, however, to what extent the Administrative Law Judge's challenged fact findings were based on this misreading of Dolan's testimony, and to what extent, if any, they were based on credibility resolutions While under these circumstances we would normally remand the case to the Admin- istrative Law Judge for clarification, we find it unnecessary to do so here For we are persuaded, as he was, that, even if there were some carelessness on the part of Dolan or Christensen with respect to the incident of July 19, Respondent's decision to discharge the employees some 5 days later and just before a scheduled Board election was to be held was motivated by its opposition to the union activity of these employees We note in this respect, as did the Administrative Law Judge, the significant and obvious incongruity between Sexton's exaggerated expression of deep concern for the "serious breach of safety rules" which allegedly led him to discharge Dolan, as well as Christensen (some 5 days later), and Sexton's repose of trust and confi- dence in Dolan to take over Sexton's duties in tending to the business while Sexton went on vacation between July 19 and 24 2 Chairman Miller agrees that a bargaining order is appropriate herein as a part of the remedy, but in accordance with his separate views as expressed in United Packing Company of Iowa, Inc, 187 NLRB 878, and General Sten- cils, Inc. 195 NLRB 1109, he would predicate such order solely on the serious and extensive 8(a)(I) and (3) violations of the Respondent DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Administrative Law Judge: This case was tried in Juneau, Alaska, on December 5, 1972. The charge was filed on August 11, 1972,' and amended on August 29, by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 959, herein called the Union. The complaint issued on Sep- tember 22, and as amended at the hearing alleges that Petro- lane Alaska Gas Service, Inc., herein called Respondent, violated Section 8(a)(1), (3), (4), and (5) of the National Labor Relations Act, as amended. ISSUES The primary issues are- 1. Whether Respondent violated Section 8(a)(1) of the Act by threatening to discharge its employees if theyjoined the Union or selected it to represent them; by threatening to discharge an employee because he gave testimony under the Act; and by interrogating employees concerning their union activities. 2. Whether Respondent violated Section 8(a)(3) and (1) of the Act by discharging its employee Duane Christensen because he joined the Union, and violated Section 8(a)(3), (4), and (1) of the Act by discharging its employee Phillip Dolan because he joined the Union and gave testimony in a proceeding before the National Labor Relations Board. 3. Whether Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the i All dates are in 1972 unless otherwise specified 205 NLRB No. 5 PETROLANE ALASKA GAS SERVICE Union as the representative of its employees. All parties were given full opportunity to participate, to introduce relevant evidence , to examine and cross-examine witnesses, to argue orally, and to file briefs . Briefs, which have been carefully considered , were filed on behalf of the General Counsel and Respondent. Upon the entire record of the case and from my observa- tion of the witnesses and their demeanor, I make the follow- ing: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent, an Alaskan corporation engaged in the dis- tribution and sale of liquid petroleum gas and related sup- plies, maintains a place of business at Juneau , Alaska. During the year immediately preceding the issuance of com- plaint, which was representative of its annual operations, Respondent's total dollar volume was in excess of $500,000. During the same period , it purchased and caused to be transported to Juneau, Alaska, directly from points outside Alaska, goods valued in excess of $50,000. Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Background Respondent sells liquified petroleum gas (LPG ) and ap- pliances in which LPG is used . The LPG is propane or butane which can be transported and stored in liquid form but which can be used as a gaseous fuel under normal temperatures and pressures . Respondent does business in many locations, including ones in Fairbanks and Juneau, Alaska. Its regional manager for the State of Alaska, Ivan Jaques, maintains his headquarters in Anchorage, Alaska. Cramer Sexton , who reports to Jaques , is the district manag- er in charge of Respondent's operations in Juneau.' Phillip J . Dolan was hired by Sexton as a driver-salesman at Respondent's Juneau facility on February 7, 1972. He filled storage tanks and cylinders , delivered LPG, and sold appliances . In May or June 1972, he became a serviceman, repairing small appliances such as hot water heaters and stoves. On April 4, 1972, Duane Christensen was hired by Sexton as a driver-salesman at the Juneau facility. He continued to drive, deliver LPG to customers , and make sales of appli- ances throughout his employment. Both Dolan and Chris- tensen were discharged on July 26, 1972. During the time they both worked for Respondent , the entire employee com- 2 The complaint alleges, the answer admits and I find that Sexton is an agent acting on Respondent's behalf and is a supervisor within the meaning of Sec 2( 11) of the Act 69 plement at the Juneau facility consisted of a district manag- er (Sexton), two employees in the production department (Dolan and Christensen), and a part-time office girl. William Ruhle is the business representative of the Union in the Juneau area. Before moving to Juneau in April 1972, Ruhle represented the Union in its dealings with Respondent's Fairbanks facility where a collective-bargain- ing agreement was in force. On May 4, Ruhle visited Respondent's Juneau facility in the mistaken belief that the Juneau operation was covered by the Fairbanks contract. On that occasion, he discussed the matter with Respondent's district manager, Cramer Sexton. Dolan was also present. Sexton told Ruhle that there was no contract in Juneau and suggested that he check with Regional Man- ager Ivan Jaques in Anchorage. On May 8, Dolan went to Ruhle's office and asked whether Respondent could fire him for participating in union activities. Ruhle informed him of his rights under the Act. Dolan then signed a union authorization card dated May 8 that read: I hereby designate the International Brotherhood of Teamsters, Local 959 to represent me for the purpose of collective bargaining and in any and all other situa- tions that may arise under the operation of the Nation- al Labor Relations Act and/or with any individual employer where the provisions of the National Labor Relations Act are invoked. I hereby revoke any other authorization executed by me. On May 18 Duane Christensen spoke to Ruhle and he signed an authorization card dated May 18 with the same wording. On May 19, Ruhle mailed a registered letter to Respon- dent advising it that the Union represented a majority of its employees and requesting a time, date, and place to discuss a collective-bargaining agreement .3 The letter was received by Respondent on May 20. On May 23 the Union filed a petition for an election with the Board in Case 19-RC-6222. On June 30, a hearing was held on the petition in which Dolan testified. An agreement for consent election was approved on July 19 which provid- ed for the following unit: All drivers and servicemen employed by Respondent at its Juneau, Alaska facility, excluding all professional and office clerical employees, guards and supervisors as defined in the Act, and all other employees. That unit is appropriate for the purposes of bargaining .4 The entire bargaining unit consisted of Dolan and Chris- tensen. Before the scheduled election could be held, both Dolan and Christensen were discharged. Respondent has refused to recognize the Union as the representative of its employees. 3 The letter is dated May 17, 1972 However , Ruble credibly testified that the date resulted from a clerical error and that he wrote the letter on May 18, after Christensen signed an authorization card , and mailed it on May 19 His testimony is supported by the return receipt for the registered letter which shows a delivery date of May 20 4 The findings in this paragraph are based on allegations in the complaint which are admitted in the answer 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Allegations that Respondent Violated Section 8(a)(1) of the Act and Other Incidents Indicating Animus Toward the Union The complaint as amended at the hearing alleges that Respondent on various dates threatened employees with termination if they joined or assisted the Union, interrogat- ed employees concerning their union activities, and threat- ened to terminate Dolan because he testified at a Board heanng. In addition, other matters were litigated which al- legedly demonstrate Respondent's animosity toward the Union and shed light on the discharge of Dolan and Chris- tensen. 1. The threats to discharge-facts and conclusions On May 4, Ruhle spoke to Sexton in Dolan's presence concerning the application of the Fairbanks contract to Juneau. After Ruhle left, Dolan asked Sexton what Respon- dent thought of unions and what would happen if hejoined the Union. Sexton replied that if Dolan joined the Union he (Sexton) would run him off the first chance he had. Sexton, in his testimony, admitted that he told Dolan that if he (Dolan) went for the Union he would be fired. Sexton went on to aver, however, that he said it in a lighthearted manner and was not serious. Dolan credibly testified that he took Sexton's remark seriously. Sexton was the only representa- tive of management at the Juneau facility and was the man who had hired Dolan. The threat to discharge Dolan if he joined the Union came shortly after Sexton told Ruhle that the Fairbanks contract did not apply to Juneau. In these circumstances, Dolan's assumption that the threat was a meaningful one was clearly warranted. Before signing the union authorization card on May 8, Dolan was told about his rights under the Act by Ruhle. After the petition for an election was filed, Respondent posted a notice on the bulletin board setting forth those rights. On June 9, Dolan sought to ascertain whether inter- vening events had changed Sexton's attitude. In a conversa- tion with Sexton in a restaurant called "The Barn," Dolan again asked Sexton what he thought about unions. Sexton replied that he thought they were outdated. Dolan then asked what would happen if he joined one. Sexton replied that Dolan would be run off and that he was tired of people getting rich off the Company.5 Dolan testified in the June 30 hearing on the representa- tion petition. At the hearing, Dolan testified that he had not been receiving certain commissions. On July 3, Sexton spoke to Dolan about that testimony in the Respondent's front office in the presence of Christensen. Sexton told Do- lan to stop crying to Ruhle about benefits and to keep track of the sepal numbers on items he sold so that benefits could be determined. Sexton then told Dolan that because of that testimony he (Dolan) was just about through there.' Later 5 These findings are based on the credited testimony of Dolan Sexton testified that he didn't recall the June 9 conversation However, when asked about it a second time he averred that he might have said it, but that what he meant was that he thought they would be glad to have a job, learn a trade, and work up to raises like everyone else the same day Sexton had a conversation with Christensen. Sexton told Christensen the names of those who had been present at the Labor Board hearing and then said that, because Phil Dolan had testified, they might have to let him go.7 On July 8, Sexton spoke to Dolan and Christensen in the company office. Sexton told them that if they went union Respondent couldn't afford to pay wages for two union employees and one would have to be fired. Sexton also said that Christensen would be the one let go because he had less seniority than Dolan.8 As found above, Respondent through Sexton: on May 4 and June 9 threatened to discharge Dolan if he joined the Union; on July 3 threatened to discharge Dolan because of his testimony in the representation proceeding; and on July 8 threatened to discharge Christensen if the employees se- lected the Union to represent them.' By such conduct, Re- spondent interfered with, restrained, and coerced employees in the exercise of their rights guaranteed in Sec- tion 7 of the Act and therefore violated Section 8(a)(1) of the Act. 2. The interrogation-facts and conclusions The petition for an election was filed on May 23. About a week after the notice concerning the petition had been posted by Respondent, Sexton approached Christensen in the company office and asked him if Dolan was the person who had induced him to go union. Christensen replied that he had been interested in going union since the preceding January and that his name had been on the union list.10 On July 10, in Respondent's office, Sexton told Dolan that he (Dolan) was an instigator and asked him if he was the person who persuaded Christensen to sign a card. Dolan replied that he had not persuaded Christensen and that Christensen was interested in joining the Union even before he started working for Respondent." As found above, Respondent through Sexton interrogat- ed both Dolan and Christensen concerning their union ac- tivity. In the circumstances present here, such interrogation These findings are based on the credited testimony of Dolan and Chris- tensen Sexton testified that he had been misunderstood in this conversation and that he told Dolan that he (Dolan) had lost Randy Sexton's (Cramer Sexton's brother) job because of the testimony at the heanng that Randy was a warehouseman For the reasons set forth in detail infra, I do not believe that Sexton was a credible witness I do not credit his version of the conversa- tion 7 These findings are based on the credited testimony of Christensen Sex- ton did not refer to this conversation in his testimony 8 These findings are based on the credited and uncontradicted testimony of Dolan and Christensen 9 Though veiled in the language of economic prediction, Sexton's state- ments concerning Christensen's discharge were not protected free speech but were impermissible threats of economic reprisal to be taken solely on Respondent's own volition See N L R B v Gissel Packing Co, 395 U S 575, 617-620 (1969), Blaser Tool & Mold Company, 196 NLRB 374, Bancroft Manufacturing Co, Inc, 189 NLRB 619 10 These findings are based on the credited testimony of Christensen. Sex- ton testified concerning a conversation he had with Dolan which related to Christensen's union membership, but he did not refer to a direct conversation with Christensen 11 These findings are based on the credited testimony of Dolan. Sexton testified that he thought he did ask whether Dolan had persuaded Christen- sen to be in favor of the Union in further testimony, he averred that he asked Dolan if Christensen had joined the Union PETROLANE ALASKA GAS SERVICE could serve no legitimate employer purpose.12 Particularly in the light of Respondent's threats to discharge employees because of union activities, the interrogation was intimidat- ing in nature and interfered with Section 7 rights in violation of Section 8(a)(1) of the Act.13 3. Additional indications of Respondent's animus toward the Union It had been customary for Dolan and Christensen to work on motorcycles or hobbies in Respondent's shop after it closed at 5 p .m. Near the end of June, Sexton spoke to Dolan in the plant and told him if they went union the doors would close at 5 o'clock and there would be no more hob- bies or working on motorcycles after the shop closed.14 C. The Discharge of Dolan and Christensen 1. The alleged misconduct a. The contentions The General Counsel contends in effect not only that Respondent threatened to discharge Dolan and Christensen because of their activities that were protected under the Act, but that on July 26 it carried out that threat. Respondent contends that the discharges were completely unrelated to any protected activity of those employees. According to Respondent, those employees were discharged because they engaged in gross violations of important safety rules in an incident that occurred in the early morning of July 19. Sex- ton testified that that was the only reason for the discharge and if it had not been for that they would still be working for Respondent. In spite of that assertion, Respondent in- troduced evidence relating to poor work performed by those employees prior to the July 19 incident. That evidence, though admittedly not relating to the immediate cause of discharge, will be considered as background. b. The misconduct prior to July 19 Sometime in April Dolan was driving over an unpaved road when the metal valve on the end of the hose disengaged from its fitting on the truck. The valve was pulled along the road and damaged. Dolan stopped the truck and put the valve back on the fitting. Dolan did not tell Sexton about the incident until Sexton noticed the damage and asked. On April 24, Dolan reported for work substantially late; because of this and the valve incident Sexton decided to fire him. However, after discussing it with Dolan, Sexton changed his mind. Sexton testified that after that incident Dolan started coming to work on time and producing more work, and he subsequently told Dolan that he could stay on. On May 22, Dolan delivered a 10-pound gas regulator to 12Cf Struksnes Construction Co, Inc, 165 NLRB 1062 13 Webb Tractor and Equipment Company, 167 NLRB 383, Big Three Indus- tries, Inc, 195 NLRB 370 14 This finding is based on the credited testimony of Dolan Sexton testi- fied " I was trying to see if they would realize-if they would care if they lost some of their benefits " He went on to aver that in fact no benefits were cut 71 a customer when the job called for a 6-ounce regulator. Because of this the customer singed his hair when trying to light the oven. On another occasion, a furnace and toolbox fell out of a truck that Dolan was driving without Dolan knowing it. They were subsequently returned. On still another occasion, Dolan and Christensen were told to install a particular tank at a location selected by a customer. After finding that the tank leaked, Dolan tried to stop the leak by tightening the valve. In attempting to do so, the valve stem and packing flew out, leaving a 3/4-inch hole. He managed to cram a lead pipe with a cap on it into the hole, but the tank still leaked. Dolan and Christensen load- ed the tank on a truck and took it back to the shopyard where they allowed the gas to escape into the atmosphere. Sexton testified that when he questioned them about it the next morning they "smirked." Christensen repeatedly used the company truck as a per- sonal vehicle. Sometime in May, Sexton needed the truck after 5 o'clock and could not find it. He discovered it loaded with groceries away from the yard and he drove it back to the yard. Later, Christensen came to the yard and took out his groceries. Christensen testified that he used the company truck with permission. However, he acknowledged that on one occasion Sexton did tell him not to use the truck for his own use. He further averred that he did use it for his own use after that time. Sexton testified that Christensen had used the truck for personal use after he had been told not to. As it is unlikely that Sexton would have taken the truck with the groceries at a time when Christensen did have permission to use the truck, I find that Christensen did use the truck without permission. The above incidents may establish that Dolan and Chris- tensen were less than exemplary employees. However, it is clear from the testimony of Sexton that Respondent did not consider any of that misconduct to be of sufficient gravity to warrant discharge. The pivotal issue is, therefore, the incident of July 19. c. The July 19 incident At about 7 p.m. on July 18, a barge full of LPG arrived for Respondent at the Juneau dock. Sexton asked Dolan and Christensen to come back after dinner and help unload the barge, even though they had been working since 8 a.m. that morning. They all worked on the transfer of LPG from the barge to storage tanks in Respondent's yard through the night. At about 1 a.m. on July 19, there were two LPG trailers at Respondent's yard. One had already been emp- tied into the yard's storage tanks. The other, which con- tained 6,000 gallons of LPG, was in the process of being pumped into a partially filled 18,000 gallon storage tank. At that time, the trailer with the 6,000 gallons of LPG was connected to the pump of the storage tank by a hose which ran from the back of the trailer to the storage tank pump. The trailer, in turn, was connected to the tractor which had brought the trailer from the barge. While the pumping was going on, Sexton ordered Christensen to disconnect the tractor from the trailer that was being pumped so that the tractor could be used to haul away the empty trailer which was nearby. Sexton testified that for years he has discon- 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nected tractors from trailers while the trailers were being pumped and that the trailer is not disconnected from the storage tank pump until the pumping is completed . In obe- dience to Sexton's instructions, Christensen attempted to separate the tractor from the trailer while the trailer was still being pumped . Christensen cranked up the trailer so that its landing pads would hold it upright , released the pin on the "fifth wheel" which held the tractor to the trailer , and dis- connected the lines between the tractor and trailer. There is a sharp conflict in testimony as to what occurred next. Christensen testified to the following : Christensen jerked the tractor forward but saw that he wasn 't disconnected from the trailer, so he stopped . Dolan then walked out of the shop and came to the passenger side of the truck. Dolan motioned for Christensen to go forward . Christensen did so, but the trailer was still connected and he again stopped. Dolan motioned for him to go ahead a third time and once again Christensen moved forward but failed to disconnect. Dolan told Christensen to stop and he did so immediately. Christensen got out of the cab and Sexton came running around from behind the trailer "jumping up and down and waving his arms all over the place." While attempting to disengage, Christensen had not seen Sexton . Sexton told Christensen that Christensen had almost broken the hose and he wanted to know "what the hell was going on." Chris- tensen replied that he thought the trailer moved because the trailer brakes weren 't holding. The trailer brakes on that particular trailer had previously presented difficulties and Sexton was aware of it . Christensen then returned to the tractor, backed it up and cranked up the trailer a little higher. Sexton put a 4-by-4 board under the trailer wheels and directed Christensen to drive forward The tractor was disengaged from the trailer without further difficulty, with the trailer still being pumped. Dolan testified to the following: While he was leaving the office after drinking coffee, he saw the tractor bouncing with the trailer dragging behind it. The tractor and trailer had moved about 3 feet and the landing gear on the trailer had been pulled in the dirt leaving a mark. Sexton was in back of the trailer where the hose to the pump was located. Dolan approached the tractor and stood near the tractor door on the passenger side. He could see Sexton who was also on the passenger side but at the rear of the trailer. Sexton signaled for the tractor to move forward by moving his right hand forward . Dolan in turn signaled Christensen to go ahead . Christensen jerked the tractor forward about 3 more feet with the trailer still connected . Sexton was still waving for them to go ahead by hand motions, but then he stopped those motions and began jumping up and down waving both hands in the air. Dolan told Christensen to stop and Sexton came around to the driver 's side of the truck and spoke to Christensen. Because of the noise created by the pump compressor and the diesel motor , Dolan did not hear what was said . Christensen then got back in the truck and backed it up. The trailer was jacked higher and Sexton once again stood in back of the trailer looking at the hoses and made the same signal he had previously made to go ahead. Dolan relayed the signal to Christensen , who then succeed- ed in disconnecting the truck from the trailer. Ruhle, the Union's business representative, credibly testi- fied that it is standard procedure tojerk a tractor to separate it from a trailer after the pin has been removed . He further credibly testified that he inspected the skid marks sometime after the incident and that the tractor and trailer had been jerked forward on three separate occasions , about 3 feet each time, leaving a 9-foot mark on the ground. Sexton testified to the following : Christensen did notjack up the landing gear of the trailer high enough to allow the latch mechanism to release the tractor from the trailer. Sex- ton then got between the tractor and the trailer with an iron bar in order to lift part of the latch mechanism . At that time, Dolan was standing next to the tractor door and Sexton was 4 or 5 feet away between the tractor and the trailer. Sexton could hear Dolan talking to Christensen and he was certain that Dolan could hear him. Dolan opened the truck door and told Christensen to pull ahead . Christensen put the tractor in gear and dragged the trailer ahead about 9 feet in one continuous lunge. The landing pads dragged through the dirt that distance leaving a mark 2 or 3 inches deep. When Sexton saw what was happening, he stepped back so that he was standing on the right side of the tractor's rear axle about 3 feet away from Dolan . Sexton yelled for them to stop while Dolan was telling Christensen to go ahead. By the time Christensen stopped the truck, a hose connecting the trailer to the pump of the storage tank was at the point of breaking. It would have broken if the trailer had been moved another 6 inches and about 7 million cubic feet of gas could have endangered the Mendenhall Valley. A break would have been extremely dangerous. I am unable to fully credit either Sexton or Dolan's ver- sion of the incident. Serious doubts about Sexton 's veracity were raised by a report filed with the Alaskan Department of Labor concerning the reasons for the termination of Do- lan and Christensen . In that report, he stated that they were discharged because they violated three separate sections of Respondent's published safety manual, only one of which referred to "Driving away from a product transfer point with a loading hose still connected " One section was "Op- erating a vehicle while under the influence of alcoholic bev- erages, drugs, etc." Sexton testified that about 8 or 9 p.m. on July 18 he brought a six-pack of beer to where Dolan and Christensen were working; that he (Sexton ) drank two of the beers; that he offered the beer to the employees ; that he left the six-pack with Dolan; and that he did not know whether Dolan accepted it. He did not testify that anyone other than himself actually drank beer that night . In spite of those facts, he attempted to justify his report to the Department of Labor by testifying that he felt that Dolan drank the beer which he himself offered to Dolan. Another safety violation attributed to the employees in Sexton's report to the Depart- ment of Labor as a reason for discharge was "dishonesty, including, but not limited to, deceit, concealment , or prevar- ication regarding material facts in accident reporting." Sex- ton testified that the dishonesty he referred to was a statement Dolan made in a conversation after the dis- charges at a meeting with Ruhle and Jaques . As that conver- sation did not take place until after the discharges , nothing that took place during that conversation could have been a cause for the discharges . Sexton's report to the Department of Labor combined with his testimony in attempting to explain the report establishes that he is completely lacking candor . All his testimony is therefore suspect. However, I PETROLANE ALASKA GAS SERVICE am also unable to to fully credit Dolan. Dolan's testimony that the tractor was moved on the basis of the hand signals from Sexton is inconsistent not only with the testimony of Sexton but with the assertion by Christensen that, when he first saw Sexton, Sexton was jumping up and down and waving his arms all over the place because the hose had almost broken. Dolan's testimony is also difficult to recon- cile with his own assertion that Dolan began tojump up and down and wave both hands in the air. Combining the credible portions of the testimony of Do- lan, Christensen, and Sexton, I find as follows: In attempt- ing to follow Sexton's instructions to remove the tractor from the trailer while the trailer was still being pumped, Christensen did not crank up the trailer sufficiently high to disconnect it from the tractor. When he attempted to jerk the tractor away from the trailer, the pressure from the improperly raised tractor together with the malfunctioning brakes on the tractor caused the trailer to move forward with the tractor about 3 feet. At that time, Sexton was standing in back of the trailer where the hose was connected to the pump. Dolan then came on the scene. He stood near the passenger door to the tractor and told Christensen to pull forward again. When Christensen jerked the truck for- ward a second time in his effort to disengage the tractor, Sexton began shouting and waving for them to stop. He was, however, standing some distance away from Dolan at the far end of the trailer. Because of the noise from the pumping motor and the diesel, it was difficult to be heard. Dolan saw Sexton waving in an agitated manner and he did not con- strue it as a signal to go ahead. Dolan either negligently failed to react to Sexton's expressed agitation or simply ignored it and tried to separate the tractor from the trailer in his own way. He again signaled Christensen to move ahead and Christensen jerked the truck ahead another 3 feet. Sexton then went up to Christensen, told him of the danger caused by the stretched hose and had him back the truck up. After the trailer was jacked up higher and Sexton had placed a 4-by-4 under the trailer's wheels, the tractor was moved out from under the trailer with Sexton directing the operation. The trailer was still being pumped. It may well be that there is an inherent danger in attempt- ing to disconnect a tractor from a trailer while the trailer is being pumped. If so, Sexton was negligent in directing Christensen to perform that operation. However, Dolan was in his own right negligent in directing the second and third movement of the tractor without concerning himself with the possibility of breaking the hose. Christensen was also negligent in following Dolan's instructions. Dolan knew that the trailer was dragging behind the tractor. When the trailer did not disengage after the first jerk forward, he should have attempted to find the reason that the trailer would not separate rather than risking the further move- ment of the trailer with the possible breakage of the hose. I believe that both Christensen and Dolan engaged in mis- conduct with regard to the incident. However, it does not automatically follow that the discharges were causally con- nected to that misconduct. The determination must be made whether Respondent discharged Dolan and Christen- sen because of the misconduct or whether it used the mis- conduct as a pretext to disguise an unlawful discharge. 73 d. Events occurring between the July 19 incident and the discharges After the work of unloading the barge was completed on the morning of July 19, Sexton left Juneau for a vacation. He did not return until Monday, July 24. Also on July 19, Sexton gave Dolan and Christensen 3 days off to compen- sate for the 1 night they had worked.' Though Dolan and Christensen were given time off on July 19, 20, and 21, Sexton did ask Dolan to come to work for an hour each of those days after the salmon derby, and to check the re- corder. Sexton instructed Dolan to make whatever deliver- ies were needed. When Sexton returned from his vacation on July 24, he told Christensen that he was going to report the July 19 incident to Jaques and that he was not going to have Dolan or Christensen around the plant anymore. Christensen credibly testified that on July 15 Sexton com- plained to Christensen about poor work performed by Do- lan and had stated, "Phil's not going to be with us much longer." On July 24, Sexton phoned Jaques and told him that Dolan and Christensen had tried to disconnect the tractor from the trailer while they were transferring LPG. He ex- plained that Dolan directed Christensen while Christensen tried to drive the tractor out from under the trailer and that Christensen had moved the tractor about 9 feet with the landing pads down. Jaques asked whether there had been other problems and Sexton answered that an improper regu- lator had been given, that a wall furnace and tools had been lost from a truck and been returned by a customer, and that on numerous occasions Christensen had not used wheel blocks on the delivery truck.16 Sexton asked Jaques for ad- vice. Jaques in turn talked to his superior and the decision was made to fire Dolan and Christensen. They were dis- charged on July 26. Jaques credibly testified that Respondent is very con- cerned with safety. Respondent's safety manual specifically provides that a driver will be terminated immediately for driving away from any product transfer point with the load- ing hose still connected. In an incident in 1967 at Soldotna, Alaska, one of Respondent's drivers had driven away from a product transfer point with a loading hose connected. The fitting on the tank broke and the LPG leaked out forming a vapor cloud which ignited when it reached a pilot light in a nearby residence. The resulting fire burnt Respondent's plant, storage facility, two trucks, a store, three houses and a police station. When a new employee is hired, he is required to study the safety manual and take a test on it. Paychecks are not made out until an affidavit is received that the employee has taken and passed the test. This procedure was followed for Dolan and Christensen. 15 Sexton testified . "I bought them a couple of beers-I thought it was the right thing to do I was going to give them time off-they got three days-a couple days later to go to the salmon derby, you know, which was three days off to compensate for the one night " 16 Though Sexton testified that he also told Jaques about the personal use of the truck and the escaping gas incident, Jaques did not refer to those matters in his testimony 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Conclusions as to the discharges The General Counsel has established by credible evi- dence that: Dolan and Christensen had engaged in activities protected by the Act (Dolan joined the Union and testified in the representation proceeding, and Christensen joined the Union); Respondent knew that Dolan and Christensen had engaged in those activities (as established by the man- ner in which Respondent interrogated both Dolan and Christensen and the responses made by those employees to the interrogation); Respondent harbored a virulent animos- ity against the Union and union adherents (as evidenced by the two threats to discharge Dolan if he joined the Union, the threat to discharge Dolan because of his testimony in the representation proceeding, the threat to discharge Chris- tensen if the employees selected the Union, the threat to reduce benefits if the Union was selected, and the unlawful interrogation of both Dolan and Christensen concerning their protected activities); and, after threatening to dis- charge union adherents, Respondent in fact did discharge Dolan and Christensen before the scheduled election could take place. Respondent attempted to meet the General Counsel's strong prima facie case by establishing that it was concerned with safety, and that both Dolan and Christen- sen had engaged in serious misconduct involving safety re- gulations in the incident on July 19. As the Board said in P. G. Berland Paint City, Inc., 199 NLRB No. 145: The mere fact that an employer may want to part com- pany with an employee whose union activities have made him persona non grata does not per se establish that a subsequent discharge of that employee must be unlawfully discriminatory. If the employee himself ob- liges his employer by providing a valid independent reason for discharge-i.e., by engaging in conduct for which he would have been discharged anyway-his discharge cannot properly be labeled a pretext and ruled unlawful. However, even where a plausible ground exists for discharg- ing an employee whose protected activities have angered his employer, that employer may not seize upon those grounds where the real reason for the discharge is the employer's desire to rid himself of a union adherent. Liberty Sportswear Corp., 201 NLRB No. 96. A violation of the Act exists where a discharge is even partly motivated by the union activity of an employee. Branthaven, Inc., d/b/a Hospitality Home, 192 NLRB 1062. As the court of appeals held in N.L.R.B. v. Whiten Machine Works, 204 F.2d 883 (C.A. 1, 1953): In order to supply a basis for inferring discrimina- tion, it is necessary to show that one reason for the discharge is that the employee was engaging in protect- ed activity. It need not be the only reason but it is sufficient if it is a substantial or motivating reason, despite the fact that other reasons may exist. Respondent's entire course of conduct warrants the infer- ence that the fate of Dolan and Christensen was sealed well before the July 19 incident. Sexton testified that the sole reason for the discharge was the incident of July 19 and that Dolan and Christensen would still be working if that inci- dent had not occurred. However, the threats to discharge those employees, the unlawful interrogations, Sexton's re- mark to Christensen on July 15 (4 days before the July 19 incident) that Dolan was not going to be with them much longer, as well as Sexton's gross distortions in his report to the State of Alaska in which he gave reasons for the dis- charges, all indicate that Respondent was simply biding its time and waiting for some plausible excuse to disguise the real reason for discharge. Respondent's conduct after the July 19 incident also indicates that the discharges were not based on the incident. While Sexton was away on vacation Dolan was in effect put in charge of Respondent's operation for the hour a day he worked. During that time, Dolan was the only one working and was not subject to any supervi- sion. If the July 19 incident had really convinced Sexton that Dolan's misconduct was such a serious breach of safety rules as to warrant discharge, it is unlikely that he would have allowed Dolan to work without any supervision after the incident occurred. In effect, Sexton was showing his confidence in Dolan by letting him work alone. It was not until July 24, 5 days after the July 19 incident, that Sexton told Christensen that he wasn't going to have Dolan or Christensen around the plant anymore.17 Under all these circumstances I find that Respondent seized upon the July 19 incident as a pretext for discharging Dolan and Christensen. I further find that Respondent car- ried out its threats and discharged Dolan because of his union activity and because he testified in the representation proceeding, and discharged Christensen because of his union activity. By such discharges, Respondent violated Section 8(a)(3), (4), and (1) of the Act. D. The Alleged Refusal To Bargain The Union demanded recognition in a letter received by Respondent on May 20. At that time, the Union represented the two employees who constituted the entire appropriate bargaining unit set forth above. Both these employees had signed unequivocal authorization cards designating the Un- ion as their representative for the purpose of collective bar- gaining . Respondent has at all times refused to recognize the Union as the representative of those employees. In N.L R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), the United States Supreme Court held that a bar- gaining order would be appropriate in two situations. The first was where "the employer's threats of reprisal were so coercive that, even in the absence of a Section 8(a)(5) viola- tion, a bargaining order would have been necessary to re- pair the unlawful effect of those [unfair labor practices]." The second was " ... in less extraordinary cases marked by less pervasive practices which nonetheless still have the ten- dency to undermine majority strength and impede the elec- tion process." The Court also held: " . .. an employer can insist on a secret ballot election, unless, in the words of the Board, he engages `in contemporaneous unfair labor prac- tices likely to destroy the Union's majority and seriously impede the election."' In Ship Shape Maintenance Co., 189 17 Though Sexton went through the motions of seeking advice from higher authority, his conversation with Christensen establishes that it was Sexton who made the effective decision to discharge PETROLANE ALASKA GAS SERVICE NLRB 395, the Board expressed the test to be applied in terms of whether the lingering effects of the unfair labor practices rendered uncertain the possibility that traditional remedies could ensure a fair election , and whether the Union's majority card designations obtained before the un- fair labor practices provided a more reliable test of the employees' desires and better protected employee rights than would an election . As stated in Joseph J. Lachniet, d/b/a Honda of Haslett, 201 NLRB No. 128, where a coer- cive atmosphere is created by the employer which conven- tional Board remedies may not adequately disipate so that a fair election can be held with reasonable certainty, a bar- gaining order is warranted . See also Gibson Products Compa- ny of Washington Parish La, Inc., 199 NLRB No. 115; Garland Knitting Mills of Beaufort, South Carolina, Inc., 178 NLRB 396. In the instant case Respondent not only engaged in un- lawful threats to discharge employees and unlawful interro- gation, but unlawfully discharged the two employees who constituted the entire bargaining unit , thereby totally re- moving all eligible employees from the unit . Respondent's unfair labor practices had such a far reaching impact on the bargaining unit that, even in the absence of an 8(a)(5) viola- tion, a bargaining order would be needed to repair the un- lawful effect of those unfair labor practices . A fair election cannot, after such conduct , be ensured by the use of tradi- tional remedies and I find that the authorization cards pro- vide a more reliable test of the employees ' desires and better protect the employees' rights than would an election. I fur- ther find that by refusing to recognize and bargain with the Union on and after May 20 , 1972, Respondent violated Section 8(a)(5) and ( 1) of the Act, and that to effectuate the policies of the Act a bargaining order is required to remedy the refusal to bargain , as well as the other unfair labor practices. Ship Shape Maintenance Co., surpa. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section I, above, have a close, inti- mate, 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. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices , I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discharged and refused to reinstate Phillip J. Dolan in violation of Section 8(a)(3), (4), and (1) of the Act and Duane Christensen in violation of Section 8(a)(3) and ( 1) of the Act, I shall recommend that Respondent be ordered to offer them reinstatement and make them whole for any loss of pay resulting from their discharge, by payment to each of them of a sum of money equal to the amount he normally would have earned as 75 wages from the date of his discharge to the date on which reinstatement is offered, less net earnings during that peri- od. Such backpay shall be computed on a quarterly basis in the manner prescribed in P. W. Woolworth Company, 90 NLRB 289, and shall include interest at 6 percent as provid- ed in Isis and Plumbing & Heating Co., 138 NLRB 716. Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and, upon request, bargain collectively in good faith with the Union as the exclusive representative of all employees in the unit set forth above and , in the event that an understanding is reached , embody such under- standing in a signed agreement. It is further recommended that Respondent be ordered to preserve and, upon request , make available to the Board or its agents, for examination and copying, all payroll records, social security payment records , timecards, personnel re- cords and reports, and all other records necessary to analyze the amount of backpay due. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging and refusing to reinstate Phillip J. Do- lan because of his activities on behalf of the Union and because he gave testimony under the Act , Respondent has violated Section 8(a)(3) and (4) of the Act. 4. By discharging and refusing to reinstate Duane Chris- tensen because of his activities on behalf of the Union, Respondent has violated Section 8 (a)(3) of the Act. 5. The following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act: All drivers and servicemen employed by Respondent at its Juneau, Alaska facility, excluding all professional and office clerical employees , guards and supervisors as defined in the Act, and all other employees. 6. The Union is the exclusive representative of the em- ployees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment. 7. By refusing to recognize and bargain with the Union as the exclusive representative of its employees in that unit on and after May 20, 1972, Respondent has violated Section 8(a)(5) of the Act. 8. By the foregoing conduct, by threatening to discharge employees if they joined the Union or selected the Union to represent them, by threatening to discharge an employee because he gave testimony under the Act , and by interrogat- ing employees concerning their union activities , Respon- dent has interfered with , restrained, and coerced employees in the exercise of their rights guaranteed them by Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact, and conclusions of law, and upon the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 18 Respondent Petrolane Alaska Gas Service, Inc., Juneau, Alaska, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discharging, refusing to reinstate, or otherwise dis- criminating against any employee for supporting Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, Local 959, or any other union. (b) Discharging, refusing to reinstate, or otherwise discri- minating against any employee for giving testimony under the National Labor Relations Act, as amended. (c) Threatening to discharge employees if they join that Union. (d) Threatening to discharge employees if they select that Union to represent them. (e) Threatening to discharge employees because they give testimony under the Act. (f) Interrogating employees concerning their union activ- ities. (g) Refusing to recognize and bargain with International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, Local 959, as the exclusive representa- tive of its employees in the following unit: All drivers and servicemen employed by Respondent at its Juneau, Alaska facility, excluding all professional and office clerical employees, guards and supervisors as defined in the Act, and all other employees. (h) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer Phillip J. Dolan and Duane Christensen imme- diate and full reinstatement to their formerjobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privi- leges, and make them whole for their loss of earnings in the manner set forth in the section of this Decision entitled "The Remedy " (b) Preserve and, upon request , make available to the Board or its agents , for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due. (c) Upon request, bargain collectively with said Union as the exclusive representative of its employees in the bargain- ing unit and, in the event an understanding is reached, embody such understanding in a signed agreement. (d) Post at its Juneau, Alaska, facility copies of the at- tached notice marked "Appendix." 19 Copies of the notice on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's authorized repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted Reason- able steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of the Order, what steps Respondent has taken to comply herewith. 18 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 19 In the event that the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government. After a trial at which all sides had a chance to give evidence, an Administrative Law Judge of the National Labor Rela- tions Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all these things except to the extent that membership in a union may be required pursuant to a lawful union-security clause. WE WILL NOT do anything that interferes with, re- strains, or coerces employees with respect to these rights. More specifically, WE WILL NOT discharge, refuse to reinstate , or other- wise discriminate against any employee for supporting International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America, Local 959, or any other union. WE WILL NOT discharge, refuse to reinstate , or other- wise discriminate against any employee for giving testi- mony under the National Labor Relations Act, as amended. WE WILL NOT threaten to discharge employees if they join that Union. WE WILL NOT threaten to discharge employees if they select that Union to represent them. WE WILL NOT threaten to discharge employees be- cause they give testimony under the Act. WE WILL NOT interrogate employees concerning their union activities. PETROLANE ALASKA GAS SERVICE WE WILL NOT refuse to recognize and bargain with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amenca, Local 959, as the exclusive representative of our employees in the following unit: All drivers and servicemen employed at our Juneau, Alaska facility, excluding all professional and office clerical employees, guards and supervisors as de- fined in the Act, and all other employees. WE WILL offer full reinstatement to Phillip J. Dolan and Duane Christensen, with backpay plus 6-percent interest. WE WILL, upon request, bargain collectively with that Union as the exclusive representative of our employees in that bargaining unit and , in the event that an under- standing is reached, embody such understanding in a signed agreement. Dated By 77 PETROLANE ALASKA GAS SER- VICE, INC (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, 10th Floor, Republic Building, 1511 Third Avenue, Seattle, Washington 98101, Telephone 206-442-7472.