United Gas Pipe Line Co. v. NLRB

• Decision Date: 11 January 1973
• Docket Number: No. 72-1036.,72-1036.
• Parties: UNITED GAS PIPE LINE CO., and Pennzoil Pipeline Co., Petitioners-Cross Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

471 F.2d 395 (1973)

UNITED GAS PIPE LINE CO., and Pennzoil Pipeline Co., Petitioners-Cross Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.

No. 72-1036.

United States Court of Appeals, Fifth Circuit.

January 11, 1973.

V. R. Burch, Jr., Daniel O. Goforth, Houston, Tex., for petitioners-cross respondents.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Clifford Potter, Director, Region 23, N. L. R. B., Houston, Tex., Howard Perlstein, Washington, D. C., for respondent-cross petitioner.

Before GEWIN, THORNBERRY and CLARK, Circuit Judges.

GEWIN, Circuit Judge:

This case arises upon the petition of United Gas Pipe Line Company and Pennzoil Pipeline Company¹ to review and set aside an order issued by the Board on December 10, 1971 and reported in 194 NLRB 131. The Board filed a cross application seeking enforcement of its order. The Board found that the company had violated § 8(a)(1) of the National Labor Relations Act as amended, 29 U.S.C. § 151 et seq. by coercively interrogating employees concerning their union activities and by threatening them with loss of benefits upon the advent of the union.² It further found that the company violated § 8(a)(3) and (1) of the Act by refusing to grant the application for a transfer of employee Byron Griffith, because of union activity then in progress. The Board's order directs the company to cease and desist from interrogating its employees concerning their union preferences and threatening them with a possible loss of benefits in the event of union recognition. Affirmatively, the order requires the company to offer Byron Griffith an immediate transfer to the job he sought, displacing if necessary, any employee presently assigned to or working in that position. We enforce the Board's order as to the § 8(a)(1) violation, but find a lack of substantial evidence to support its conclusion that Griffith was denied a transfer in violation of § 8(a)(3). Enforcement is granted in part and denied in part.

I

After several unsuccessful efforts to organize the employees at various company locations, the union renewed its organizational efforts once again in August 1970. Its campaign focused on the employees of divisions of the company located at Shreveport, Louisiana and Victoria, Texas. Pursuant to a representation petition filed by the union on February 16, 1971 an election was held the following May. The union lost the election.

We set forth very briefly the details of several incidents which occurred during the course of the union's campaign upon which the 8(a)(1) violation was found. The record discloses substantial evidence to establish that (1) at a meeting to discuss a claim arising from a work injury, a company representative stated to the employee involved that he was known as a "union man"; (2) a plant superintendent made inquiry of an active union employee as to the time and place of a planned union meeting, the subject matter to be discussed and whether he would be permitted to attend; (3) a company representative asked a job applicant whether he favored the union and expressed the opinion that the company would be in a better position if the union were rejected; and (4) at two safety meetings company officials advised employees that union recognition would have an adverse effect upon existing company policy relating to leave and transfer benefits.

We have examined the company's conduct in the circumstances surrounding each event in question. Perhaps the most significant circumstance is the fact that the campaign for union recognition was in progress at the time. Although the company stoutly maintains its innocence, it is clearly apparent from the record that the above mentioned evidence, considered in the context of the factual situation as it existed at the time, reasonably supports the inference that such conduct tended to coerce the employees in the exercise of their rights guaranteed by the Act.³ Accordingly, we affirm the Board's determination that the company violated § 8(a)(1) and that its order based upon that violation should be enforced.

II

Prior to January 1970, Griffith had 21 years of service with the company at the Carthage, Texas installation. Due to operational changes at Carthage, Griffith and thirteen others were declared to be surplus employees, and he was transferred to the company's installation at Lafayette, Louisiana, approximately 350 miles from Carthage.⁴ Griffith's new assignment carried the same pay and grade as his former position⁵ and under company rules his change in positions was classified as a lateral transfer as distinguished from a promotion.

Griffith remained in Lafayette for a short time. On April 29, 1970 he accepted a promotion and moved to his new assignment at Goodrich, Texas, which is considerably nearer to Carthage than Lafayette. His desire to return to his former home and business interests continued and he persisted in his efforts to obtain a transfer back to Carthage. Finally, an apparent opportunity arose. A Carthage employee whose duties were classified at the same level as Griffith's became terminally ill and that job was soon to become vacant. Griffith sought a transfer to that position.

His initial inquiry was made of Mr. James Neal, his superior at Goodrich, in early August 1970. Neal expressed doubt over the possibility of a transfer. According to Griffith's undisputed testimony Neal's opinion was based on the following transfer rules set forth in the Company's Personnel Policy Manual:

4.4 Transfers requested by the employee . . . will ordinarily be approved if the employee is performing his present job satisfactorily and has been in his present job and present location for a minimum of one year. The one-year time limit may be waived in exceptional cases and will be waived in cases where the employee entered his present job and location due to a surplus move.

4.41 When a vacancy occurs that would allow consideration of an approved request for a transfer at the employee\'s expense, a list of employees qualified to be promoted to fill the vacancy shall be developed, and the employee requesting the transfer shall be placed on the list in accordance with his Service-in-Occupation at the level from which the promotion would be made. The vacancy will then be offered to the qualified employees in the order of their Service-in-Occupation.

4.42 Requests for transfer approved under 4.4 shall be cancelled when an employee accepts a promotion or voluntarily accepts a transfer that is not made for the convenience of the company.

In September 1970, approximately a month later, Griffith discussed the desired transfer with Mr. James Norris, the district operating superintendent at Tyler, Texas. He informed Norris that a position was to open in Carthage in the near future and that he desired to transfer to it. He outlined the background of his employment and his desire to return to his former home and business interests.⁶ Just as Neal had done earlier, Norris pointed out the difficulty in view of the one year waiting period required by the company's rule but expressed a sympathetic interest in Griffith's request. Norris suggested that Griffith submit a letter requesting the transfer.

In accordance with the suggestion of Norris, Griffith submitted a letter to Neal requesting the transfer. Neal approved the request and forwarded it to his superiors with the following notation: "Please help this man as he is a very good hand." The request was approved perfunctorily by two of Neal's superiors, one of whom reported directly to company Vice-President J. H. Etcherhoff. The letter resulted in the exchange of interoffice memoranda in which several executives on the intermediate level recommended approval of the transfer but acknowledged the barrier posed by the one year rule.

Finally in October 1970 a meeting was held by several company officials to discuss the matter. After considering factors for and against granting the transfer, Vice-President Etcherhoff concluded that the company could not justify a departure from well established company policy regarding transfers. The request was denied. The record indicates that none of those present at the meeting to discuss the transfer, including Etcherhoff, knew anything about Griffith's union sentiments one way or the other.

During the time when company officials were considering the request, Griffith received assurances from Norris that he would soon be going to Carthage. After his conversation with Norris, Griffith began making arrangements to move his family. However, before actually moving he discussed the matter further with Joe Harris, a division employee relations representative. Harris indicated clearly his understanding that the requested transfer was still under consideration and expressed doubts about its final approval in view of the company's rule.

On October 26, 1970 Norris informed Griffith of Etcherhoff's decision to deny the transfer. According to Griffith's testimony Norris suggested that the reason for the denial of the transfer was the fact that union activity was taking place at the time and his further belief that if the transfer were approved, the position of the union would be enhanced. Norris vehemently denied making such statements.

The final episode connected with the requested transfer occurred at a safety meeting on November 9, 1970. At that time Norris and Harris met with the Goodrich employees to discuss certain local problems. Two employees raised questions about transfers and Norris is said to have stated that Griffith did not obtain the transfer because of union activity.⁷ Griffith further testified that after the meeting Norris elaborated further on his earlier comments and expressed the opinion that the union was the cause of the denial of the transfer because "Management could do just as they damn pleased if it weren't for the union."

In the meantime the Carthage position sought...