Boston Gas Co.

BOSTON GAS COMPANY Boston Gas Company and Utility Workers Union of America, AFL-CIO. Case I-CA-1 1284 April 21, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On December 21, 1976, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions, a supporting brief, and a motion to remand, and Respondent filed a reply 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 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- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. t Respondent also filed a motion to strike certain portions of the Charging Party's memorandum and brief. 2 The Charging Party 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. In addition, we deny the Charging Party's motion for remand and Respondent's motion to strike. DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge: The charge in this case was filed by the Union on December II1, 1975, and the complaint issued on February 6, 1976, alleging that Respondent discharged and refused to reinstate Gerald McCluskey as a residential salesman because of his union activities. In its answer, Respondent denies the commission of any unfair labor practices. A hearing was held before me in Boston, Massachusetts, on July 6, 7, and 8, 1976. At the conclusion of the hearing the I Respondent has filed a motion to correct the official record of the hearing. The motion is granted except for the correction requested at p. 20,1. 18. See p. 52. 11. 3-1 1. The motion is received in evidence as Resp. Exh. 20. 229 NLRB No. 25 parties waived oral argument. The General Counsel and Respondent have filed posthearing briefs.' Upon the entire record in this case, including my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Massachusetts corporation engaged in the sale and distribution of natural gas and appliances for residential and commercial use in and around Boston, Massachusetts. Respondent has annual indirect inflow of gas and other supplies in excess of S50,000 and has annual gross revenues in excess of $250,000. Respondent admits and I find that it is engaged in interstate commerce and that it will effectuate the policies of the Act to assert jurisdiction herein. 1. THE LABOR ORGANIZATION INVOLVED Utility Workers Union of America, AFL-CIO, referred to herein as the Union, is a labor organization within the meaning of the Act. Inx. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Background Since 1936 the physical and clerical workers of the original Boston Gas Company have been continuously represented by labor organizations. As the Company has grown by acquisition and merger, other organized units have become a part of Respondent's system. For many years Respondent has employed a residential sales force whose job was to sell and promote the use of gas and gas appliances for residential purposes. Before 1975 the residential salesmen were not represented by any labor organization. During the 1970's Respondent acquired additional gas companies whose salesmen were represented and contin- ued to be represented after acquisition. During the same period shortages developed in the supply of natural gas, and Respondent began to curtail its efforts to promote the use of gas. As a result in January 1975 Respondent reduced the residential sales force of its Boston division from 45 salesmen and 4 field supervisors to 20 salesmen and 2 field supervisors, and in August 1975 Respondent laid off 4 more salesmen. These factors led to the ultimate organiza- tion of the Boston division residential salesmen in 1975. 2. Gerald McCluskey's employment and union activities Gerald McCluskey started to work for Respondent in 1956 as a residential salesman. In 1965 he was promoted to a residential sales supervisor's position, and he remained a supervisor until the January 1975 layoff, when his supervi- 169 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sory job was eliminated and he was returned to a salesman's job. McCluskey became interested in organizing the salesmen while he was still a supervisor, and in 1974 he discussed the possibilities on various occasions. Residential Sales Man- ager Frank Noonan was aware of some of these discus- sions. In the spring of 1975, after McCluskey's return to a selling job, he contacted one of the Steelworkers locals which represented other employees of Respondent, and in the early summer solicited union authorization cards for that union. McCluskey did not attempt to conceal this activity, and Respondent was aware of it. The Steelworkers filed a representation petition but then withdrew it after an issue was raised within that union over representing the salesmen because they had crossed picket lines during a 1969 strike. Thereafter, McCluskey contacted the Utility Workers Union and, with the assistance of some others, solicited new authorization cards on behalf of the Union. The Union filed a representation petition on September 24, 1975. An election was held on October 16, 1975, which resulted in a unanimous vote in favor of representation by the Union. 3. The investigation of McCluskey's commission claims and his suspension on October 22 Gas appliances are sold by Respondent, dealers with financing by Respondent, and dealers without any involve- ment of Respondent. Sales of the latter kind are referred to as outside sales. In order to meet complaints of outside contractors that Respondent's salesmen are in competition with them, Respondent gives commissions to its residential salesmen for certain outside sales. At the times material to this case, Respondent paid a $50 commission to a residential salesman for an outside sale of a central house heater in his territory, and it paid an additional $4 commission for a sale of a water heater made in conjunction with a sale of a central heater. Salesmen claiming commissions for outside sales completed outside sale order forms and submitted them to their supervisor for verification and approval. The supervisors operated on the honor system and usually verified the sales orders without any independent investigation as to the propriety of the claim, although periodically supervisors made spot checks of sales orders. On October 21, 5 days after the representation election, McCluskey submitted three outside sales orders for approval by his supervisor, McGee. Each of the sales orders was for a house heater and a water heater at three different addresses in the town of Hull, Massachusetts. On the previous day, McGee had received a telephone call from plumber Sidney Selig who had requested a "log number" to insure that Respondent would supply gas for a central heating installation he was making. McGee testified that Selig said nothing about a water heater as part of the installation. McGee told McCluskey about the call and the location of the installation. One of the three orders which McCluskey submitted on October 21 was for that installa- 2 Much of the testimony as to the investigation and what it developed is uncontradicted. I have found McGee, Noonan, and McGoldnck credible in describing their findings. The major conflicts are between McCluskey and tion. McGee testified that he became suspicious of the three orders because Selig had not mentioned a water heater to him in their telephone conversation on the previous day and because other residential salesmen had been complaining that McCluskey was winning sales contests on the basis of commissions on outside sales of water heaters. McGee testified that because of his suspi- cion he decided to investigate the three orders personally. McGee went to Hull and first visited 148 Atlantic Avenue, which was a home owned by William Sorenson. McGee found plumber Richard Chaplin there and asked him if he was installing a water heater as well as a central heater. Chaplin replied that there was an existing water heater in the house and showed it to McGee. 2 McGee next went to 529 Nantasket Avenue, an address which appeared on another of the sales orders. He found a boarded up drugstore, found its owner, and learned that no water heater was to be installed there. McGee then visited 126 Samoset Street, where the Selig job was located. There he found that a central heater and a water heater both had been installed. On the basis of this information McGee called Sales Manager Noonan and told him he had found some discrepancies in McCluskey's orders and arranged for them to meet with McCluskey the next morning. At that time McGee showed McCluskey the orders for 148 Atlantic Avenue and 529 Nantasket Avenue. McGee told McClus- key that he had investigated the previous day, that there was no water heater at Sorenson's, that no water heater was going to be installed there, and that the other address was a drugstore. McGee asked McCluskey for his explanation. McCluskey replied that he had talked to Mrs. Sorenson about the water heater and that she had said that she did not want Chaplin to know that she was going to get a water heater from Paul Smith, another plumber. McCluskey said that he could not explain the drugstore, but that he knew that the order pertained to a little white house. Following the meeting Noonan went to Hull and tried to recheck the Sorenson residence, but found no one at home. He was unable to discover any explanation for the drugstore address on the sales order. Noonan then returned to Boston to the office of Michael McGoldrick, his superior. From there, he telephoned Mrs. Sorenson who told him that she had an existing water heater there which she did not intend to replace. From the name McNair on the order for 529 Nantasket Avenue and the telephone directory, McGoldrick found that the correct address was 589 Nantasket Avenue, and he telephoned Mr. McNair who told him that he was going to install a central heater which was not yet on the premises and had no plans to install a water heater. Noonan and McGoldrick then discussed the situation and decided to suspend McCluskey pending further investigation. Later that afternoon Noonan notified McCluskey that he was suspended because there was no central heater or water heater on the McNair job and no water heater on the Sorenson job. other witnesses. For reasons set forth below I have generally not credited McCluskey. 170 BOSTON GAS COMPANY 4. The further investigation and McCluskey's discharge Following the suspension Noonan and McGoldrick decided to check all the other outside sales orders that McCluskey had submitted since he returned to selling and to make a random check on all the other salesmen. No discrepancies were found in the sales orders checked for the other salesmen, but the investigation of McCluskey's sales orders turned up what Respondent contends were further discrepancies at four additional locations. 3 McCluskey had submitted a series of sales orders for central heaters and water heaters at 750 and 750A Nantasket Avenue in Hull. He had claimed commission for four central heaters and five water heaters at 750 and four central heaters and four water heaters at 750A. In the course of the investigation McGee and Noonan visited this location and found a single structure containing eight residential units. Four were reached through a front entrance and four through a side entrance. Noonan discovered that there had been a large oil burner in the basement which had been used to heat all eight apartments for a number of years and which was to be replaced by eight separate gas heating units. Noonan also discovered that in the building there was a single sewage line, a single waterline, and a single gasline to nine gasmeters. Although there were two separate entrances to the building, the only number which appeared on it was 750, and there was no 750A anywhere on the building. Respondent contends that the building constituted a single apartment house contain- ing eight residential units, that as a result the sales for that building constituted volume sales rather than residential sales, and that McCluskey was not entitled to any of the commissions which he had claimed for that address. McCluskey had submitted a series of sales orders for six central heaters and seven water heaters at 830 Nantasket Avenue. When Noonan and McGee visited that location, they found that it was an old structure which was being renovated and that none of the water heaters were on the premises. They spoke to the brother of the owner who told them that he was unable to keep water heaters at the premises for installation because it was not a secure place and that they would be ordered the following spring. Respondent contends that McCluskey was not entitled to claim commissions on the water heaters for this location because they were not on thejobsite. McCluskey had submitted one sales order for 125 Samoset Street and five additional sales orders for 127 Samoset Street, dated September II and 19, 1975. Each was for a central heater and a water heater. When McGee and Noonan investigated these orders, they discovered that all six pertained to the same address, 125 Samoset Street, that there were six water heaters on the premises at that time but that there were only four central heaters there. They spoke to the owner who told them that the two additional central heaters would be delivered but that he " McCluskey made sales at a total of 31 locations dunng the penod he served as salesman. At seven locations Respondent was unable to complete the investigation. 4 Brown testified that when he first visited the premises he misread the rating plate on the heater as 30,000 and later discovered that it was a 50,000 BTU heater. Brown testified that he would assume that a heater such as that had run into zoning problems which had delayed the job. Respondent contends that McCluskey improperly claimed commission for the two central heaters because they were not on the premises. The last location at which a claimed discrepancy was found was 25 Channel Street in Hull. McCluskey had submitted a sales order for a Williams 70,000 BTU input heater at that location. Walter Brown, a staff heating engineer, visited that location during the investigation and reported back that the unit installed there was not a central heater but was a room heater with 50,000 BTU input and that it was not a Williams heater.4 Respondent contends that McCluskey was not entitled to claim any commission on the heater installed at 25 Channel Street because company policy did not allow for commissions to be paid on outside sales of room heaters. On October 28, Noonan reported the results of the investigation to McGoldrick who decided to discharge McCluskey. McGoldrick testified that his decision was based on the discrepancies described above. 5 On October 31, McGoldrick, Noonan, McCluskey, and Union Representative Madden met, and McGoldrick told McCluskey that he was being discharged for misrepresent- ing or falsifying sales. He and Noonan enumerated the sales on which the charges were based. Madden told McGoldrick and Noonan that he intended to investigate the locations at which the falsifications were claimed and asked whether Respondent had any written policy that the men were supposed to follow as to when they could claim commissions. McGoldrick told Madden that there was a written policy, pursuant to which salesmen were required to visit the site at which the equipment was to be installed and see that the equipment was there before claiming a commission. Madden requested a copy which he never received. 5. The post-discharge investigation and Respondent's refusal to reinstate McCluskey Following this meeting, in early November Madden tried to visit all the locations at which the discrepancies were claimed. He was unable to enter 25 Channel Street, 148 Atlantic Avenue, and 589 Nantasket Avenue. At 125 Samoset, he observed that all six central heaters and water heaters were at the site. At 750 Nantasket Avenue, he observed the layout of the premises. At 830 Nantasket Avenue, Madden spoke to the owner who told him that he intended to install the water heaters but was having a variance problem with the city which had delayed their installation. The owner told him that he was afraid to store the water heaters at the building site because of the possibility of theft. Madden did not see the water heaters described on the sales order submitted by McCluskey was a central heater because of the indicated input. 5 McGee, who did not make the decision to discharge McCluskey, was called initially at the hearing as an adverse witness and questioned about the reasons for McCluskey's discharge. McGee testified that McCluskey was discharged for falsifying orders and for no other reason. 171 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but the owner told him that he had told McCluskey they would all be installed. 6 After completing his investigation on November 10, Madden met again with Respondent to report his findings. In addition to reporting what is set forth above, Madden asked whether anyone had spoke to Mr. Sorenson. When Respondent's representatives indicated that they had only spoken with Mrs. Sorenson, Madden reported that McCluskey had told him that Mr. Sorenson was the one who had informed him that a water heater was to be installed and that McCluskey had told him that the town of Hull had issued a permit for its installation. Thereafter, on November 13 Noonan went to recheck several of the locations based on what Madden had told him. At 148 Atlantic Avenue he found that there was still no new hot water heater present, and he checked applications for gas permits at the town hall where he found that Paul Smith had applied to install only a new central heater in August, that the application had been voided, and that a later application was made for the same work by Richard Chaplin on October 25. Neither applica- tion covered the installation of a water heater. At 589 Nantasket Avenue, Noonan found a crated central heater in the basement but there was still no new water heater there. Noonan visited 750 Nantasket Avenue again but found nothing to add to his earlier observations there. At 830 Nantasket Avenue, Noonan found no new water heaters on the premises and was told by the owner's brother that they had not yet gotten around to ordering them. At 125 Samoset Street, Noonan found that all six central heaters were now present at the site. However, after McCluskey's discharge, Respondent had discovered that there had been a previous sale of central heaters for that location 2 years earlier for which salesman John Kain had claimed commissions. When Noonan visited the premises on November 13, plumber Chaplin was there, and he confirmed that the central heaters then being installed at the house were those which had been sold to his father by Kain 2 years earlier. On December 1, Madden met with Respondent's representatives again and asked whether Respondent would reinstate McCluskey. The request was denied. Thereafter, Madden filed the instant charge. 6 Madden also testified that the owner told him the water heaters were there. I find this doubtful in view of his testimony that the owner also told him why he was afraid to keep them there and Noonan's testimony that he did not see them on a later visit. I do not credit Madden in this regard. 7 McCluskey testified that in 1974 in conversation with him and salesman Joyce. Noonan told Joyce he might as well forget about organizing a union because he was the last hired and would probably be the fifth to go. McCluskey testified that Noonan told him he was skating on thin ice and had better watch himself. McCluskey testified that on another occasion in 1974 Noonan told him that if a union came in it would be the end of the salesmen because the Company did not need them. Noonan denied making the latter statement but was not questioned about the former conversation. McCluskey testified that a week after the January layoff, he asked Noonan why he was reduced to a salesman and Noonan replied that McGoldrick did not like him, he was never around the office, they knew what McCluskey was about, and his activities were upsetting them. Noonan denied making these statements. McCluskey testified that at a meeting of all the salesmen about a month B. Concluding Findings 1. Contentions The General Counsel contends that McCluskey was a known union adherent, that Respondent had animus toward organization by the salesmen, that the reasons asserted by Respondent for McCluskey's discharge were demonstrably false, and that, even assuming arguendo the discrepancies attributed to McCluskey existed, the dis- charge nonetheless was for discriminatory reasons. Re- spondent concedes that it was aware of McCluskey's union activities and of the union activity of the salesmen generally. It contends, however, that it did not entertain any union animus; that in the case of each of the irregularities attributed to McCluskey he had violated a known company rule; that his discharge was in accordance with the Company's usual disciplinary standards; and that the General Counsel failed to establish that McCluskey was discharged for discriminatory reasons. 2. Respondent's alleged animus The evidence of union animus in this case is slight. The General Counsel relies entirely on testimony of McCluskey as to statements allegedly made by Noonan and McGee showing hostility to the organization of the salesmen and upon the argument that even assuming that Respondent had no animus toward the organization of its blue collar employees, its salesmen were viewed as part of manage- ment who had acted as strikebreakers in the past and whose organization Respondent had no reason to welcome in the light of the major dislocations taking place among them. On the record before me it is striking that McCluskey's testimony as to alleged antiunion statements made by Noonan and McGee, as well as statements indicating McGoldrick's personal hostility toward him,7 are entirely uncorroborated by testimony of any of the presently employed or laid-off salesmen who testified, including those who testified on behalf of the General Counsel. Indeed, the only corroboration for McCluskey's testimony comes from that of his supervisor, McGee, who testified that he did make superficially threatening statements to the salesmen but that they were made in jest as part of ongoing banter between him and the salesmen, and that on other occasions he expressed agreement with the salesmen's after the layoff, where he crudely criticized a quota proposal made by McGoldrick, McGoldrick told him that if he did not like it he might not be around to see it. McGoldrick denied making this statement. McCluskey testified that after the August layoff when he accused Noonan in crude terms of taking pride in getting rid of all the salesmen who had been represented by a union with other companies, Noonan replied that McCluskey's name had been up for consideration also. Noonan testified that he had possibly told McCluskey his name had been considered for layoff because all salesmen had been considered but that he had no specific recollection of the conversation. McCluskey testified finally that at around this time when a number of salesmen were gathered around his desk talking about an impending meeting with a union representative, McGee told them there would be no union meetings on company property or they would all be fired and asked McCluskey why he did not take his severance pay and get out while he was able. McGee conceded that he might have made the first statement in jest, but denied making the second statement and testified that McCluskey was not eligible for severance pay. 172 BOSTON GAS COMPANY effort to organize. Although McGee's testimony was also uncorroborated by any of the salesmen, there is partial corroboration in the fact that the union activities continued openly in the office and in the presence of McGee despite the alleged threatening statements made by him. There is also corroboration for the Company's contention that it entertained no animus toward the salesmen's organizing efforts in the nature of the campaign which was run by Respondent in the preelection period. No speeches were made to the salesmen, and Respondent indicated opposi- tion to organization in only a single letter in restrained and dispassionate terms. Furthermore, in the period following the January layoff when personal hostility was allegedly displayed toward him, McCluskey requested special con- sideration and treatment following his return to selling, and he received it. For these reasons as well as my findings below as to McCluskey's credibility with respect to other aspects of his testimony, I have concluded that McCluskey is not to be credited as to the alleged antiunion remarks which he attributed to McGee, Noonan, and McGoldrick. Whether or not Respondent had reason to welcome organization by the salesmen, the record does not establish that Respondent harbored animus toward the salesmen generally or McCluskey individually because of his union activities. 3. The merits of the reasons assigned by Respondent for McCluskey's suspension and discharge Of the six commission claims which Respondent con- tended were wrongly submitted by McCluskey, four involved the submission of claims before equipment was delivered to the jobsites, contrary to alleged company policy. The General Counsel contends that there was no written regulation embodying this policy, that there was no showing that it was promulgated or enforced, and that in fact practice varied among the salesmen and the territories they covered. There is no evidence of a written rule establishing the proper time for submission of commission claims for outside sales, but it appears that there was an established rule known to the salesmen and communicated to them by the supervisors. At one time Respondent required that equipment be connected to the gasline before a commis- sion could be claimed, but that requirement was relaxed at least to the extent of permitting submission of claims after equipment was delivered to the jobsite. Although there was some testimony that salesmen were expected to make an onsite inspection to be certain that the equipment was there before submitting a claim, the evidence establishes that salesmen sometimes relied on the word of contractors with whom they regularly did business that the deliveries had been made, and occasionally cut corners for purposes of meeting a quota or contest requirement to submit claims on the strength of a contractor's word that equipment would be delivered. 8 McCluskey's testimony as to his understanding of company policy and his practice was neither clear nor R Former salesmen Costello, Occhiolini. and Lessard so testified and conceded that they knew that equipment was required to be on the jobsite consistent. McCluskey conceded that company policy required that equipment be onsite before submission of a commission claim, but he testified that it was not a hard and fast policy and that salesmen submitted claims in reliance upon the statement of a plumbing contractor that he had sold a job. Then McCluskey testified that he would submit a claim when the contractor told him that a job was underway. On cross-examination as to his understanding of the rule, McCluskey was evasive and responded with respect to specific cases rather than his understanding of the rule. In relation to one of the cases, McCluskey conceded that he relied on an assumption which he made rather than on what the contractor told him. When McCluskey was questioned about his practice as a supervisor in verifying claims made by other salesmen, he testified that he was supposed to ascertain that the salesman had a definite order and that as far as he was concerned, it was sufficient that the equipment was going to be installed subsequently or soon. He conceded, however, that he had once heard McGee tell salesmen that equipment had to be delivered before they could claim a commission. With respect to the jobs at issue, McCluskey testified that based on a working relationship with Chaplin, whom he considered an exceptionally reliable contractor and who was the plumber at 589 Nantasket Avenue, 148 Atlantic Avenue, 25 Channel Street, and 750 Nantasket Avenue, he acted in reliance upon Chaplin's word that the equipment would be installed at those locations and would eventually get there and acted in good faith in claiming the commissions. I do not credit McCluskey that company policy permit- ted him to submit a commission claim as soon as a contractor told him that a job had been sold for future delivery. That testimony was supported by only one other witness, and former salesmen called by the General Counsel conceded that the requirement was that equip- ment be at the jobsite. Not only did McCluskey work as a salesman for a number of years but in his capacity as supervisor he must have known what was apparent to the other salesmen. I cannot conclude that Respondent's policy was as confused as General Counsel contends and as little enforced. There is evidence that salesmen evaded and cut corners, but there is no evidence that Respondent condoned it, and indeed the testimony of the salesmen called by the General Counsel establishes that salesmen were reminded of the policy and that there were greater attempts to enforce it within the year prior to the layoffs. Finally, as will be seen below, even if the rule were as lax as McCluskey described in each instance the claims submit- ted by McCluskey did not fall within his own version of what was required. Turning to the four claims submitted by McCluskey before delivery, the first involved the claim for 148 Atlantic Avenue. McCluskey testified that he first found out that a water heater was to be installed when plumber Paul Smith called to tell him he had a job. McCluskey testified that after he spoke to Smith, he went by to check the job and discovered that Smith had not gotten the job because his before making a commission claim and that it was cutting comers to submit claims before delivery but testified that they were not alone in doing so. 173 DECISIONS OF NATIONAL LABOR RELATIONS BOARD price was too high. McCluskey testified that he assumed that Smith was going to put a water heater in as well as a central heater and later learned at the Hull Town Hall that Smith had taken out a permit for a water heater and a central heater. McCluskey told Chaplin about the job, and Chaplin later told him he got the job. McCluskey testified that he had been waiting for some months for Chaplin to start the job, asked Chaplin if he was starting it, and claimed the commission in good faith on the basis of Chaplin's word that he was starting the job, because he was going on vacation and had no time to visit the job. McCluskey conceded that he did not go into detail as to what Chaplin was doing on the job, and that he relied on Chaplin's mere statement that he was working on it. McCluskey testified that he assumed that the job included a water heater without asking Chaplin. Chaplin testified that the job at 148 Atlantic Avenue was to install only a central heater, and that later in mid- November he sold a water heater to Mr. Sorenson which he delivered but did not install. From McCluskey's testimony I conclude that he had no basis for submitting a claim for a water heater even under his version of the rules, and I entertain substantial doubt that the claim was made in good faith. No contractor ever told McCluskey that he had sold a water heater at 148 Atlantic Avenue, and McCluskey did not ask Chaplin what he was installing before submitting the claim. The justifica- tion for McCluskey's assumption rests entirely upon what he allegedly learned at the Hull Town Hall, although his testimony elsewhere indicates that he did not check permits until after the claim was submitted and he was suspended, and there is no evidence that a permit was ever issued to Smith to install a water heater. The explanation given by McCluskey at the hearing for submission of this claim conflicts with the explanation McCluskey gave on October 21 before he was suspended and which Madden repeated in November. I find that Respondent had reason to conclude on October 28 that McCluskey had submitted a baseless claim for a commission on a water heater at 148 Atlantic Avenue. With respect to the claim at the McNair residence, 589 Nantasket Avenue, McCluskey testified that some months before October 1975 he drove by the house with Chaplin, who told him that he was going to sell a central heater and a water heater at that address and asked for a log number to insure the availability of gas. McCluskey testified that before he submitted the commission claim, he asked Chaplin if he had started the job, and Chaplin told him that he had. He submitted the claim on the basis of what Chaplin told him without looking at the job. Chaplin testified that his job at that address was to install only a central heater, which he delivered to the house on October 20. He testified that he put a water heater in the house in late November without an order from Mr. McNair because of the possibility that McCluskey may have been misled by their original conversation about the job. I find that McCluskey again lacked any reasonable basis for claiming a commission for a water heater at the McNair home in October. McCluskey did not submit a claim on the basis of his original conversation with Chaplin some months earlier. Quite clearly he recognized then that Chaplin's statement that he was going to sell a job was an insufficient basis for submission of a claim. Despite the fact that several months had passed when he spoke to Chaplin on October 21, McCluskey made no effort to inquire as to the details of the job and relied on Chaplin's earlier statement in claiming the water heater commission. Even if McCluskey were to be believed, he had something less than Chaplin's word that a water heater was to be installed. However, I do not credit McCluskey and believe Chaplin that he never told McCluskey that he had sold a water heater at that address. I find that none had been sold at the time McCluskey submitted his claim and that Respondent after its investigation had reason to conclude on October 28 that McCluskey had submitted a baseless claim for a water heater at this address. With respect to 830 Nantasket Avenue, McCluskey testified that he had persuaded the owner of the premises to use gas water heaters in renovating the premises and that the owner ordered them from plumber Burkowitz right after McCluskey talked to the owner. McCluskey testified further that to his knowledge the water heaters were subsequently installed although not at the same time as the central heaters because the owner ran into zoning problems on the job. McCluskey conceded that the water heaters were not on the premises at the time he submitted his commission claim because of the security problem on the jobsite, but testified that he did not know at that time that the job was being held up and thought everything was going forward. The owner, Arthur Augenstern, testified that during the summer McCluskey convinced him to use gas for both the heat and hot water and that he put off delivery of the heaters for some months to avoid any damage to them. He could not remember when the water heaters were delivered but testified that it was probably in the late fall. There is no evidence as to the date the water heaters were ordered or that Burkowitz ever told McCluskey that he had sold them. Once again McCluskey's own version indicates that his submission of the claim for the hot water heaters at 830 Nantasket Avenue did not follow even his version of company policy. Although it appears that in this case the owner intended to install gas water heaters and so informed McCluskey, McCluskey submitted the claim before the heaters were delivered and without having been told by the contractor that the sale had been made. Moreover, there is no evidence to contradict what Respondent learned during the investigation before and after McCluskey's discharge. I find that Respondent had reasonable grounds on October 28 to believe that McClus- key's submission of the commission claim for the water heaters at this address was contrary to company policy. With respect to 125 Samoset Street, McCluskey testified that he had heard that the premises were being remodeled and visited the site where he found six new water heaters and four central heaters in cartons. He testified that two additional central heaters had been brought to the site and then taken away because of disagreement between the owner and the contractor over the kind of central heat to be installed in two apartment units. McCluskey testified 174 BOSTON GAS COMPANY that later the two central heaters were returned to the site, and ultimately all six were installed. McCluskey testified that he later learned that the central heaters had been previously sold by Kain, another salesman, on what was known as a dealer sale rather than an outside sale. McCluskey testified that he had not discussed this location with Chaplin, who was the contrac- tor, initially, but that before submitting the commission claims he discussed the installation of the gas at the house with him. McCluskey testified that he did not discuss the heaters with Chaplin because they were already at the site and there was nothing to discuss about them. He testified that Chaplin did not tell him how long they had been there, and he did not ask. McCluskey testified that because the heaters were in cartons uninstalled he assumed that it was a brand new installation and he had no reason to think otherwise. Chaplin testified that Kain sold the heaters to his father 2 or 3 years earlier and that no water heaters were included in that transaction. Chaplin testified that four of the central heaters had been installed at that time when the owner intended to make minor changes in the house before renting it. Chaplin testified that thereafter the owner decided to rip everything out and start from scratch, and the four central heaters which had been installed were disconnected when the building was gutted. Chaplin testified that they were left unpacked in the cellar while the renovation was carried on. The two heaters which had not been installed were in cartons and were taken back to Chaplin's shop until sometime in the fall of 1975. There was absolutely no reason for Chaplin to have devised this testimony, and it is quite apparent that McCluskey's explanation for assuming that the central heaters at this location were recently purchased was fabricated. While Respondent did not rely on the previous sale of the heaters in discharging McCluskey, the patent incredibility of McCluskey's explanation undermines his claim that he believed that he was entitled to claim commissions on the missing two heaters at the time he submitted his claims. Moreover, even if McCluskey believed that the heaters were recent sales on which he was entitled to claim commissions, his explanation again shows that he submitted the claim not on the basis of a contractor's word that they were to be delivered but with knowledge of a dispute over the kind of heater to be installed. It does not appear that Respondent knew of that dispute on October 28 and it is possible that by that time it had been resolved, but nothing in McCluskey's testimony supports a claim that he had a basis for submission of a commission claim before the heaters were delivered to the site, and I find that Respondent had a reasonable basis to believe that the claim was contrary to its policy. The remaining two claims relied on by Respondent involved violation of other rules and policies. Respondent took the position that the claims for commission submitted by McCluskey at 750 and 750A Nantasket Avenue were improper because the sales at that location should have been considered volume sales and handled by volume salesmen rather than a residential salesman. McCluskey testified that 750 and 750A Nantasket Avenue involved "a unique building." McCluskey testified that over the years he gained the understanding that anything in four walls up to six units was deemed residential if it had a separate entrance. According to McCluskey, because there was no direct hallway between the front entrance and the rear part of the building, he viewed it as two separate four-unit buildings for which the sales could be deemed residential. McCluskey's claims for 750 and 750A were submitted on three different dates. On September 3, he submitted claims for four central heaters for the front part of the building which he designated 750 Nantasket Avenue. On September 19, he submitted the claims for the water heaters for the same portion of the building. On September 26, he submitted a claim for a larger water heater intended to supply hot water for a laundry room for the premises, and on the same date submitted claims for the central heaters and water heaters for the rear of the building which he designated as 750A Nantasket Avenue. McCluskey testi- fied that he submitted the claims on different dates in order to win sales contests and also because some of the central heaters were delivered at different times as the contractor had difficulty getting them from the supply house. McCluskey testified that water heaters all arrived at one time and that he could have claimed commissions for all of them on September 3 if he had so chosen. McCluskey conceded that there was no such number as 750A on the building, but testified that he used it simply to designate the orders which pertained to the rear part of the building. McCluskey denied that the manner in which he submitted the claims was chosen to avoid the volume sales rule. McCluskey testified that when he submitted the claims designated 750 Nantasket Avenue, the water heaters and central heaters were on the premises and he recalled seeing them in the cellar. He later testified that he saw the central heaters and water heaters there at the final stages, probably after he submitted the claims. Chaplin testified that he installed the central heating at this address, that he ordered eight central heaters on September 3, that the supplier only had two which he received on September 19, and that the other six were delivered on October 20. Once again Chaplin's testimony impairs a portion of McCluskey's explanation for the way he handled the claims on this job. If the dates of McCluskey's claims had anything to do with the delivery problems that Chaplin encountered, McCluskey would not have submitted claims for more than two of the central heaters before October 20, and he would have submitted no claims for any of them on September 3. In justification of his treatment of these sales as residential sales McCluskey testified that in August 1975 he had a conversation with volume salesman Paul Crossen, as a consequence of which he understood that it was permissible for him to handle the job at 750 Nantasket Avenue. McCluskey's testimony in this regard is in conflict with that of Crossen's. Although McCluskey's testimony initially appeared to be designed to establish that he had permission to put in claims for commissions on sales like those at 750 and 750A Nantasket Avenue, McCluskey ultimately disclaimed any implication that Crossen had suggested to him that he claim commissions to which he was not entitled, and it seems clear that what Crossen told 175 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McCluskey was, as Crossen testified, that where there were close questions McCluskey should keep Crossen informed of what he was doing to avoid duplication of effort. It makes little difference whether or not McCluskey told Crossen, as McCluskey testified, that he was working on 750 Nantasket Avenue, but based upon my overall impression of McCluskey and Crossen and the implausibil- ity of portions of McCluskey's testimony as to their initial conversation, I credit Crossen that McCluskey did not tell him he was working on 750 Nantasket Avenue. Although McCluskey testified that he believed that the eight units at 750 Nantasket Avenue could be claimed as residential sales, a company memorandum which had been in effect since 1967 makes it clear that the building at 750 Nantasket Avenue was to be considered as a volume sale, and McCluskey's testimony that he was not familiar with that memorandum is highly suspect. Indeed, the inference is strong that McCluskey, a longtime salesman and former supervisor, knew that the sales at 750 Nantasket Avenue should be treated as volume sales and that McCluskey's submission of the claims on different dates with different addresses was designed to conceal the violation of the volume sale rule. I find that McCluskey's testimony fails to show any persuasive reason for his treatment of these sales as residential, and that Respondent had reason to believe on October 28 that McCluskey had intentionally sought commissions for these sales to which he was not entitled. With respect to 25 Channel Street, McCluskey testified that he understood that company rules permitted an outside sale commission claim for the kind of wall furnace which was sold there if it had input of 50,000 BTU or more. In support of that testimony, General Counsel offered as an exhibit a February 9, 1970, memorandum on the subject of 1970 house heating quotas. However, despite McClus- key's testimony that this memorandum supported his commission claim, careful reading of the memorandum and the testimony of the other witnesses, including that of Occhiolini and Lessard, who were called by the General Counsel to corroborate McCluskey, reveals that the memorandum did not relate to commissions for outside sales and that residential salesmen were not entitled to commissions on sales of room heaters. McCluskey's testimony to the contrary is the only testimony which supports his submission of the claim for 25 Channel Street, and I do not credit it. I conclude that Respondent had reasonable grounds on October 28 to believe that McClus- key's submission of a commission claim for this address was improper. Contrary to the General Counsel's contention, I find that the reasons advanced by Respondent for McCluskey's discharge are anything but demonstrably false. Indeed while the seriousness of the violation was not the same in each case, Respondent had reason to believe that each of the six commission claims was irregular for the reasons stated by Respondent at the time of McCluskey's dis- charge. 9 A third reason advanced in Respondent's brief was that McCluskey had scarcely sufficient time to properly process the previous day's order from Selig. That reason was not mentioned by McGee in his testimony. As the equipment was already on the site of Selig's job, there is no apparent 4. The alleged discrimination The General Counsel contends that the treatment of McCluskey was harsh and unusual in comparison to other disciplinary actions by Respondent in the past. The evidence as to past disciplinary actions and as to one instance in which there were irregularities in a claim submission but no discipline shows that in each case only a single commission claim was involved. In the case in which no discipline was imposed the circumstances showed that the submission was the result of an innocent mistake. In McCluskey's case there were multiple irregularities, and the circumstances surrounding several of them indicate that McCluskey's submission of the commission claims was not the result of an innocent mistake. If anything the record shows that Respondent treated lesser offenses equally harsh. The General Counsel contends further that the initiation of the investigation on October 21 by McGee was unusual because McGee did not ask McCluskey for an explanation for his submission of the commission claim for the Seligjob before starting the investigation and because the discrepan- cies which McGee initially found were minor and were not fully investigated before McCluskey was suspended. McGee's asserted reasons for the investigation were the fact that plumber Selig had not mentioned a water heater in his telephone conversation with McGee and the grumbling of other salesmen about McCluskey's winning contests. 9 These reasons do not appear particularly strong, and when considered in conjunction with the timing of the investigation just 5 days after the election, there is some basis for suspicion of McGee's motive. But the suspicion is not strengthened by McGee's failure to talk to McCluskey before going out to inspect the jobs. If McGee suspected McCluskey of padding his commission claims, there was no reason for him to believe that McCluskey would tell him anything other than that which would support the submission claim. After McGee made his initial investiga- tion on October 21, on the morning of October 22 he and Noonan did talk to McCluskey before continuing the investigation and taking any action against him. Despite the fact that McCluskey's response at that time with respect to the Sorenson job conflicted with what McGee had been told by Mrs. Sorenson, McCluskey was not suspended that morning but was suspended only after McGee and Noonan confirmed the impression that there were irregularities in two of the three claims that McGee testified originally raised his suspicions. In the absence of any evidence of animus in this case, the facts as to the timing of the initiation of the investigation and the reasons given by McGee for initiating it are not sufficient to support an inference that the investigation was begun because of McCluskey's union activities, nor does the evidence support the General Counsel's further contention that the investigation conducted thereafter was slipshod and incomplete. The evidence also does not establish that Respondent failed adequately to investigate the claims made by reason why it should have taken McCluskey longer to submit his commission claim. In the absence of assertion of this reason by McGee and any opportunity for the General Counsel to examine McGee about it, I cannot infer that it was a reason for McGee's action. 176 BOSTON GAS COMPANY Madden at the November 10 meeting and to consider fairly Madden's request for McCluskey's reinstatement. The thrust of Madden's contention was that the equipment which had been missing from four of the sites at the time of the initial investigation was at the jobsites when he made his investigation. His contentions were not ignored. Noonan revisited the sites and found that Madden's claim was correct as to the job at 125 Samoset Street but not as to the others. In the meantime, between the time of the discharge and Noonan's reinvestigation Respondent had found a further irregularity with respect to that job which made it clear that McCluskey had no right to claim any commission for it. While that information was not a cause of the discharge, clearly Respondent did not have to ignore it in assessing whether the delivery of the additional central heaters to that site mitigated McCluskey's offenses. The contention that all the equipment was ultimately delivered so that the irregularity in the claims by McClus- key had only minor impact is not persuasive. In the case of the Sorenson and McNair orders, the evidence shows that water heaters had not been ordered at the time McCluskey submitted claims, and in at least one of the cases the later delivery of the equipment was a direct outgrowth of McCluskey's complaint to Chaplin after his discharge that Chaplin had misled him and had been responsible for his submission of a false claim. The fact that all the equipment was later delivered also, of course, has no bearing on the irregularities of 750 Nantasket Avenue and 25 Channel Street or upon the ultimate discovery before delivery of the missing heaters to three of the jobs that McCluskey was not 'o 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. entitled to any commissions for the job at 125 Samoset Street. I cannot conclude on the evidence before me that the reasons advanced by Respondent for the discharge of McCluskey were not the true reasons. Accordingly, I find that the General Counsel failed to maintain his burden of proving that McCluskey's discharge was caused by union activities, and I shall recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Boston Gas Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Utility Workers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to establish that Respondent has engaged in unfair labor practices as alleged in the complaint. Upon the basis of the above findings of fact and conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommend- ed: ORDER 10 The complaint is dismissed in its entirety. 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. 177