Synergy Gas Corp., 179 (1992)

Docket Number:02-CA-23558
 
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Synergy Gas Corp. and Stephen Brady, and Local 456, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. Cases 2-CA-23558, 2-CA- 23640, 2-CA-23795, and 2-CA-23868

September 30, 1992

DECISION AND ORDER

BY MEMBERS DEVANEY, OVIATT, AND RAUDABAUGH

On October 21, 1991, Administrative Law Judge James F. Morton issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,1 and conclusions and to adopt the recommended Order.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Synergy Gas Corp., Cold Spring, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order.

Gail T. Auster, Esq. (Belinda Lerner, Esq. on the brief), for the General Counsel.

Elliot J. Mandel, Esq., Peter A. Schneider, Esq., and Claire

  1. Boland, Esq. (Kaufman, Maness, Schneider & Rosensweig, P.C.), for the Respondent.

    Dana L. Pomerantanz, Esq. (Roy Barnes, P.C.), of Hempstead, New York, for the Charging Party.

    DECISION

    STATEMENT OF THE CASE

    JAMES F. MORTON, Administrative Law Judge. The complaint, as amended, in these cases which were consolidated for hearing, alleges that Synergy Gas Corp. (the Respondent) has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), (4), and (5) of the National Labor Relations Act (the Act). The Respondent's answer, as amended, denies the commission of any unfair labor practice.

    The pleadings place in issue whether the Respondent, to discourage its employees at its facility in Cold Spring, New York, from supporting Local 456, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union) (a) threatened to rescind a pay raise promised to an employee and (b) told employees that it was futile for them to support the Union. Also in issue are whether the Respondent unlawfully discriminated against employees by (a) allegedly rescinding a promised pay raise to an employee, (b) refusing to pay an employee for overtime work performed, and (c) discharging an employee. The amended complaint further alleges that the Respondent failed to bargain collectively with the Union respecting the layoff of three employees.

    The hearing was held before me on various dates, beginning June 26, 1990, and ending May 15, 1991. On the entire record, including my observation of the demeanor of the witnesses and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following

    FINDINGS OF FACT

    1. JURISDICTION AND LABOR ORGANIZATION

      The Respondent sells bottled propane gas to commercial businesses and to individual consumers. In its operations annually, it meets the Board's nonretail jurisdictional standard.

      The Union is a labor organization within the meaning of Section 2(5) of the Act.

    2. THE ALLEGED UNFAIR LABOR PRACTICES

  2. Background

    The Respondent has many branches throughout the country from which it distributes propane gas. The only one involved in this case is its Cold Spring, New York facility. Its approximately six employees there had been unrepresented for purposes of collective bargaining until March 8, 1989, when the Union was certified in Case 2-RC-20597.

  3. The Pay Raise Allegation

    The complaint alleges that, on or about February 28, 1989, the Respondent, by its regional manager, John Churchill, unlawfully threatened to withhold a pay raise promised to an

    1 The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188

    F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

    In agreeing with the judge that the Respondent failed to pay DePolito for his overtime work in violation of the Act, we note that DePolito had since at least March 1989 requested to be transferred to hourly status from salary status, as part of his effort to receive pay for the overtime work he was being required to do. The judge found, and there are no exceptions, that ''[a]ll the other servicemen were getting overtime pay.'' DePolito's request was approved by memo from Regional Manager Churchill on July 15, 1989. Two days later, the Respondent withdrew its approval. We agree with the judge that the Respondent's argument that its actions toward DePolito in this respect were in accordance with the Board's Order is without merit. The Board's Order required the Respondent to reinstate DePolito to his former job with backpay. The Order did not mandate that he remain a salaried employee despite his requests to become an hourly employee. Rather, we find in agreement with the judge that the Respondent's denial of DePolito's requests were in retaliation for his protected activities.

    In adopting the judge's finding that the Respondent's April 7, 1989 layoff of three employees, without first bargaining with the recently certified collective-bargaining representative of its employees, was in violation of Sec. 8(a)(5) of the Act, we find it unnecessary to discuss the propriety of the judge's citing Adair Standish Corp., 292 NLRB 890 (1989), which relied on Lapeer Foundry & Machine, 289 NLRB 952 (1988). See Holmes & Narver/Morrison-Knudsen, 309 NLRB 146 fn. 3 (1992).

    employee and that, since that date, it has unlawfully failed to pay its employee, Stephen Brady, a raise promised him.

    Churchill is responsible for all branches on the east coast.

    Various area managers report to him. Area managers are each responsible for a group of branches and each branch is supervised by a branch manager.

    Brady began working for the Respondent on April 19, 1988. He started as a yardman at the Cold Spring branch, earning $6 an hour. He also helped the then branch manager, Wayne Bumstead, in performing some of the duties of a serviceman, such as installing stoves and repairing hot water heaters. As he was then not yet 21 years of age, he could not qualify for a class III license which is required in order to drive a propane truck. In August 1988, he secured a learn-er's permit as the first step in qualifying for a class III license. A month later, he was given a $1-an-hour raise. Brady testified that Bumstead and also the area manager then, Tom Corrigan, promised him then that, when he passed the class III test, he would be assigned to drive a propane truck and would then be paid at the same rate as the other drivers at Cold Spring received, $10 per hour.

    Brady attended the Union's first organizational meeting on December 8 and signed an authorization card then. On December 16, the Union filed its petition in Case 2-RC-20597. In that same month, Brady became 21 years of age and thus was eligible to take the class III driving test. He took it then but failed. On January 28, 1989, he took the test again, using a truck which the Union had arranged for him to drive. He passed the test.

    Brady testified that, shortly after he passed the test, he asked Area Manager Corrigan when could he expect to get the driver's pay rate. He was then driving a propane truck. Brady related that Corrigan's reply was that he would have to wait until the union election was held but that the outcome of the election would have no bearing on whether he would get the raise or not. The election was held on February 28, 1989. The Union won and, as noted above, was later certified.

    Brady testified as to a conversation he had with Regional Manager Churchill on the day of the election. He related that he asked...

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