El Paso Natural Gas Co., 333 (1971)

EL PASO NATURAL GAS COMPANY

El Paso Natural Gas Company and International Union of District 50, Allied and Technical Workers of the United States and Canada. Case 28-CA-2176

September 24, 1971 DECISION AND ORDER

By MEMBERS FANNING, JENKINS, AND KENNEDY

On June 17, 1971, Trial Examiner Henry S. Salim issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a threemember panel.

The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner only to the extent consistent herewith.

The Trial Examiner found, inter alia, that the Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily transferring Mike Isham, which transfer resulted in his constructive discharge. In making this finding the Trial Examiner relied on the Respondent's knowledge that Isham was a union adherent; the fact that the Respondent had interrogated Isham concerning the complaints of the employees and their reasons for organizing; statements made by management regarding what would result from the union activities of the employees; and his conclusion that the Respondent had manipulated its seniority list in transferring employees at the time that it changed its method of gas testing. The Trial Examiner concluded that the Respondent's actions in transferring Isham were in retaliation for his union activities and were an attempt to isolate him from the other union adherents, and to thereby cut off further ' We adopt the Trial Examiner 's finding that Respondent violated Sec_ 8(axl) of the Act by refusing to grant time off to employee Mosley because he had expressed approval of the Union . This finding rests squarely on credibility resolutions Respondent excepts to these credibility resolutions However, it is the Board 's established policy not to overrule a Trial 193 NLRB No. 50

333 union activity among the employees. The Respondent contends that Isham's transfer was merely a result of its changing its method of gas testing, for which change it had legitimate and substantial business justification, and that therefore the transfer was not violative of the Act as it was not discriminatorily motivated. We find merit in Respondent's exceptions to the Trial Examiner's findings and conclusions.

The Union first began its attempt to organize the Respondent's San Juan Division about September 1969. The division comprises about 1,140 employees.

Isham worked in District C of the division measurement department, in a group of about 15 employees.

He was a member of the union organizing committee and was appointed spokesman for the group. From the record it appears, contrary to the implication of the Trial Examiner, that only one union meeting has ever been held, and that was in September 1969. There is also no evidence in the record of union activity among the employees, including Isham, after September 1969. However, about September 1969, and in January 1970, Isham was interrogated by two officials of the Respondent, regarding the employees' complaints. The Trial Examiner credited testimony by General Counsel's witnesses that about this same time in January an official of the Respondent threatened that transfers were going to be made to break up the lines of communication among the employees. Thereafter, there is no evidence of union activities, or of threats by the Respondent, until September 1970, at which time there was one violation of the Act, as noted above, in a refusal by a minor supervisor to grant an employee time off.

In defending against these charges, Respondent introduced considerable evidence to show that the San Juan Division was going to change from a charcoal method of gas testing to a chromatagraph method of testing. The decision to change the testing methods was made in 1966, and thereafter the Respondent began ordering and installing the equipment necessary to make this change. One result of this change was that the position of gas tester would be abolished. There were eight employees in this classification who would henceforth be employed as measurement technicians, the same position held by Isham. Since both the gas testers and the measurement technicians were included in the division measurement department, the Respondent determined that departmental seniority would be the basis for determining placement of the gas testers into the measurement technician group. The Respondent Examiner's resolutions with respect to credibility unless the clear preponderance of all of the evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F 2d 363 (C.A. 3). We have carefully examined the record and find no sufficient basis for reversing his findings.

therefore inquired of each employee of the measurement department in which district in the division he desired to work. As a result of more employees with greater seniority requesting to work in District C,

Isham was forced to transfer to District B. Isham refused to accept this transfer.

Contrary to the Trial Examiner, we find no discriminatory motivation in the actions of the Respondent noted above. In making his findings, the Trial Examiner relied upon the testimony of employee Lee, who testified that he was notified by his supervisor that he would be transferred from District B to District C on September 1, and that he believed he was required to accept this transfer. The Trial Examiner therefore found that Lee was forced to transfer from District B to District C in order to enable Respondent to transfer Isham to District B on the basis of seniority. We disagree with this finding. In crediting Lee's testimony, the Trial Examiner failed to note that Lee later testified, after being shown a copy of his affidavit, that his supervisor had 'said something about not having to go that next day if I didn't want to.' The following exchange then took place.

17. . . . what do you recall now . . . that he said about not having to go? A. That I would not have to go. I would have to let him know the next day.

17. And you were then given the night to think it over as to whether you wanted to go? A. . . . Yes.

17. And the next day you told him you decided you did want to take the transfer? A. Yes.

    On the basis of this testimony we find that Lee was not forced to transfer to District C, but in fact was given his choice. Our interpretation of Lee's testimony is further supported by the testimony of employee Schnorr, who testified that Lee informed him on the company bus that he had been offered a transfer to District C and that he could not make up his mind whether he desired to take it. Schnorr further testified that the following morning on the company bus Lee informed him that he had decided to accept the transfer.2 Having found that Lee was not forced to transfer from District B to District C, we find no support in the record for the Trial Examiner's finding that the Respondent manipulated the seniority roster in order to force Isham to transfer from District C to District B. Rather, we find that the Respondent chose an equitable method of placing the gas testers, whose jobs had been abolished, in the group of measurement technicians, which work they would thereafter be doing.

    2 Schnorr's testimony was corroborated by Lee 3 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words 'a Decision and As noted above, the Trial Examiner also found that the Respondent transferred Isham in an attempt to isolate him from other union adherents. We find no evidence or support for such a finding in the record.

    Prior to his transfer, Isham worked in District C, located at Aztec, New Mexico. During this time he lived in Farmington, New Mexico, a distance of 15 miles from Aztec. Following his transfer to District B,

    Isham would have been required to work at Blanco,

    New Mexico, a distance of 24 miles from Farmington,

    New Mexico. If he had accepted the transfer to District B, Isham would have continued to live in Farmington and would have continued to work among employees of the San Juan Division, all of whom the Union was attempting to organize. On the basis of this evidence, we cannot find that by this transfer the Respondent intended to isolate Isham from other employees or union adherents.

    On the basis of the above, and having thoroughly considered the record, the Trial Examiner's Decision, and the exceptions and brief, we conclude that the evidence fails to raise more than a mere suspicion that Respondent was motivated by other than legitimate business considerations in transferring employee Isham, and that Isham acted at his peril in refusing to accept this transfer. Consequently, we shall dismiss the 8(a)(3) allegations in the complaint.

    As we have dismissed the 8(a)(3) allegations of the complaint, we find inappropriate the broad ceaseand-desist order recommended by the Trial Examiner and shall issue only a narrow order.

    ORDER

    Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent,

    El Paso Natural Gas Company, Farmington, New Mexico, its officers, agents, successors, and assigns,...