Richard Home Telephone Co.

r In the Matter of RICHMOND HOME TELEPHONE COMPANY and LAURA STUCK, AN INDIVIDUAL In the Matter Of RICHMOND HOME TELEPHONE COMPANY and INDIANA TELEPHONE WORKERS UNION, AFFILIATED WITH NATIONAL FEDERA- TION OF TELEPHONE WORKERS Cases Nos. 11-C-1231 and 11-C 1261, respectively.Decided August 26, 1946 Mr. Clifford L. Hardy, for the Board. Mr. Denver C. Harlan, of Richmond, Ind., and Mr. Fae W. Patrick, ,of Indianapolis, Ind., for the respondent. Mr. R. 0. Waldkoetter, of Indianapolis, Ind., 11,1r. James Orr, of Muncie, Ind., and Mr. John M. Sandlin, of Richmond, Ind., for the Union. Mrs. LauraStuck, of Richmond, Ind., pro ae. .Mr. Samuel M. Kaynard, of counsel to the Board. DECISION AND ORDER On May 29, 1946, Trial Examiner Peter F. Ward issued his Inter- mediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that, the respondent had not engaged in unfair labor practices in discharg- ing Ransom Stigleman and recommended that the complaint be dis- missed as to him and, further, found that the respondent had not dom- inated or interfered with the formation and administration of the Telephone Employees Association or contributed support thereto, recommending that the complaint, insofar as it alleges a violation of Section 8 (2) of the Act, be dismissed. Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief; Laura Stuck filed a brief in support of the Intermediate Report. None of the parties requested oral argument before the Board at Washington, D. C., and no oral argument was had. 70 N L. R. B., No. 37. 452 RICHMOND HOME TELEPHONE COMPANY 453 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and, to the extent consistent with the Decision and Order herein, hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, and finds merit in the respondent's exceptions. 1. The Trial Examiner found that the respondent, by Superin- tendent Bishop's remarks to Blose, Snider, Stuck and Markley and by circulating among its employees certain anti-union memoranda, engaged in conduct violative of the Act. Blose and Snider were rank and file employees, and we agree with the Trial Examiner that Bishop's remarks to them constituted interference, restraint, and coercion, within the meaning of Section 8 (1) of the Act. However, Stuck and Markley were, like Bishop, supervisory employees, and, because of this common managerial relationship, conversations between them must necessarily be viewed and interpreted differently from those be- tween rank and file employees and their supervisors.' Bishop ques- tioned Stuck and Markley as to their membership in the rank and file organization 2 and also asked Stuck why • she had not told him of a union meeting which she had attended. Stuck's reply, that she did not think it was her duty to tell him more "than anybody else," pro- voked a remark by Bishop, which the Trial Examiner characterized as a threat of economic reprisal against both rank and file employees and supervisory personnel. Such a remark, if made to rank and file employees, would clearly be unlawful; but here it was made to a super- visory employee and there, is no showing that it was ever repeated to rank and file employees.' Insofar as the remark may have been also directed against supervisory employees, and it is not entirely clear that it was, we cannot say, on the basis of this record, that it amounted to more than a spontaneous statement of opinion, given by Bishop in a conversation between representatives of management, or that Stuck could reasonably have believed that the remark reflected the views of top management. Under all the circumstances, we find, contrary to the Trial Examiner, that Bishop's remarks to Stuck and Markley were not violative of the Act. Nor 'do we adopt the Trial Examiner's unfair labor practice finding with respect to the circulation of the memoranda. These documents contained no express or implied threat of economic reprisal and, standing alone, were privileged under the right of free speech. The See Matter of B F Goodrich Company, 64 N L. R B. 794. 8 Stuck and Markley were then members of the Union, but, pursuant to a consent election agreement, they were subsequently excluded, as supervisory employees, from the bargaining unit, and accordingly withdrew from membership 8 See Matter of Arnolt Motor Company, 68 N. L. R. B. 868. 454 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD Trial Examiner found, however, that they acquired a "coercive char- acter" when viewed in the light of the respondent's other unfair labor practices. Inasmuch as we are reversing herein most of the unfair labor practice findings relied upon by the Trial Examiner, there remains no substantial basis for concluding that the memoranda could reasonably have had a coercive effect on the employees. 2. The Trial Examiner found that Laura Stuck was discriminatorily discharged in violation of Section 8 (3) of the Act. We do not agree. Although some of the reasons advanced by the respondent to justify her discharge are not particularly convincing, the record as a whole indicates that there was some dissatisfaction on the part of the re- spondent with respect,to Stuck's performance of duty as the chief operator and that -there was a clash of personalities and continuous friction between Stuck and Bishop, which resulted in poor adminis- tration of the respondent's exchange. Moreover, we are not con- vinced that there is a direct causal connection between Stuck's union activity and her discharge. True, as mentioned above, she joined the Union at the inception of its organizing campaign and attended its first meeting, but shortly thereafter she was excluded from the bargaining unit and, with the respondent's knowledge, she later re- signed from the Union. , No showing is made that she thereafter engaged in any union activity. Her discharge occurred several months after her withdrawal from the Union and after the respondent had concluded an agreement with the Union covering the rank and file employees. Under the circumstances, we find, contrary to the Trial Examiner, that Stuck was discharged for reasons unrelated to her union membership and activity, and we shall accordingly dismiss the complaint as to her. 3. The Trial Examiner found that the discharge of Mallie Stigleman was violative of Section 8 (3) and (4) of the Act.' We disagree. As set forth in the Intermediate Report, the Trial Examiner found, and we agree, that both Mallie Stigleman and Ransom Stigleman, jointly and individually, engaged in improper conduct warranting their dis- charge and that therefore the respondent was justified in discharging Ransom Stigleman. - At the hearing, the respondent defended Mallie Stigleman's discharge on the ground of her misconduct, but also gave an additional reason, viz, the fact that she had given false testimony in the instant proceeding. It is apparent that the Trial Examiner would have found that Mallie Stigleman had also been properly discharged, but for the assignment of this additional reason, which, in his opinion, brought the discharge within the proscription of Sec- tion 8 (4) of the Act. 0 RICHMOND HOME TELEPHONE COMPANY 455 We have held, in the Kramer case 4 and succeeding cases,,' that an employer is prohibited under Section 8 (4) of the Act from discharging an employee for filing charges with or testifying before the Board, even though they are false. However, in our opinion, the above-cited cases are not here controlling on the facts. The mere giving of testi- mony, whether true or false, does not clothe an employee with im- munity and place him beyond the orbit of appropriate disciplinary action by the employer for acts of misconduct and breaches of duty occurring during the course of employment. That Mallie Stigleman's discharge was, for all practical purposes, actually due to her miscon- duct in eavesdropping and engaging in union activity during working hours,e apart from -the co-existent reason that she testified falsely against the respondent, is convincingly established by the fact, as found by the Trial Examiner, that Ransom Stigleman was also dis- charged at about the same time for similar, and possibly less flagrant, acts of misconduct. Under the circumstances, we are not convinced that the respondent viohlted the Act in discharging Mallie Stigleman, and we shall accordingly dismiss the complaint as to her. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Richmond Home Telephone Company, Richmond, Indiana, and its officers, agents, successors, and assigns shall: 1. Cease and desist front : (a) Interrogating its employees in any manner concerning their union membership or activities; (b) Coercing its employees in the exercise of their right to.self- organization by threatening them with economic reprisal. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its exchange in Richmond, Indiana, copies of the notice attached hereto marked Appendix "A." Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, 4Matter of The Kramer Company, et al, 29 N L. It. B. 921. See Matter of Northwestern Mutual Fire Association, 46 N. L. It. B. 825; Matter of Burnside Steel Foundry Company, 69 N. L. It. B. 128. " In this connection, it is observed that her separation notice stated that she was "discharged for misconduct in connection with work." r 456 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (b) Notify the Regional Director for the Eleventh Region in writ- ing, within ten (10) days from the date of this Order, what steps have been taken to comply herewith. IT Is FURTHER ORDERED that the complaint, insofar as it alleges that the respondent violated Section 8 (2) of the Act, and discriminatorily discharged Laura Stuck, Mallie Stigleman, and Ransom Stiglemanr be, and it hereby is, dismissed. MR. JOHN M. HOUSTON took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: We will not interrogate our employees in any manner con- cerning their union membership or activities. We will not coerce our employees in the exercise of their rights to self-organization by threatening them with economic reprisal. RICHMOND HOME TELEPHONE COMPANY, Employer. By--------------------- --------------- (Representative ) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced or covered by any other material. INTERMEDIATE REPORT Mr. Clifford L. Hardy, for the Board. Mr. Denver C. Harlan, of Richmond, Ind., and Mr. Fae IV. Patrick, of Indian- apolis, Ind., for the respondent. Mr. R. 0. Waldkoetter, of Indianapolis, Ind., Mr. Janes Orr, of Muncie, Ind., and Mr. John M. Sandhn, of Richmond, Ind., for the Union. Mrs. Laura Stuck, of Richmond, Ind., pro se. STATEMENT OF THE CASE Upon an amended charge duly filed by Laura Stuck, an individual , and upon a charge duly filed by Indiana Telephone Workers Union, affiliated with National Federation of Telephone Workers,' herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the 1 By an order of the Board dated March 4, 1946, the above numbered cases were duly consolidated for the purpose of hearing. RICHMOND HOME TELEPHONE COMPANY 457 Eleventh Region (Indianapolis, Indiana), issued its complaint dated March 7, 1946, against Richmond Home Telephone Company, Richmond, Indiana, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act Copies of the complaint and .notices of hearing thereon were duly served upon the respondent, the Union and Laura Stuck, an individual. With respect to the unfair labor practices, the complaint, as amended subse- quent to a hearing herein, and prior to a reopened hearing, alleged in substance: (1) that the respondent, since on or about April 1, 1945, engaged in acts of inter- ference, restraint, and coercion against its employees, 2 (2) that since on or about October 1, 1945, the respondent has dominated and interfered, with the formation and administration of the Telephone Employees Association, herein called the Association, and contributed support thereto ; (3) that on or about October 9, 1945, the respondent discharged Laura Stuck, a chief operator, and since that date has failed and refused to reinstate her because of her activities on behalf of the Union; (4) that, in violation of Section 8 (3) and (4) of the Act, the respondent discharged Mallie Stigleman on April 8, 1946, and Ransom Stigleman on April 9, 1946, because of their aid and assistance to Board agents and because either or both of them testified at the first hearing herein, and since said date respondent has refused to reinstate them because of their membership in and activity on behalf of the Union;' and (5) that, by the acts described above, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On or about March 25, 1946, the respondent filed its answer to the complaint, denying that it has engaged in the unfair labor practices alleged. Pursuant to notice a hearing was held at Richmond, Indiana, on March 27, 28 and 29, 1946, before Peter F. Ward, the Trial Examiner duly designated by the Chief Trial Examiner. On April 24, 1946, following a first hearing herein, counsel for the Board filed a motion to reopen the hearing and to amend the complaint with the Chief Trial Examiner. The motion alleged that, subsequent to the afore- said hearing the respondent discharged two employees in violation of Section 8 (3) and (4) of the Act, and moved that an order issue reopening the hearing and for amendment of the complaint. On April 26,1946, the Chief Trial Examiner granted counsel for the respondent until April 29, 1946, to file telegraphic objec- tions to the granting of said motion. Counsel for the respondent filed timely objections, which were denied by the Chief Trial Examiner. On May 1, 1946, the Chief Trial Examiner issued his Order directing that the hearing be reopened; that the complaint be amended as prayed for ; and that the designation of the undersigned as Trial Examiner be continued. Pursuant to said Order a further hearing was held at Richmond, Indiana, on May 16, 1946. At both hearings the Board and the respondent were represented by counsel and the Union was repre- sented by certain of its officers. Stuck appeared pro se. All parties participated in the hearings.' Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence hearing upon the issues was afforded all parties. During the first hearing, the undersigned reserved ruling on the respond- ent's motion to strike certain testimony given by Board witnesses in connection 2 Stated generally, these acts are alleged to consist of anti-union statements and threats of discharge and demotion of employees who joined or assisted the Union. ' The respondent's answer to the amended complaint denied that the Stiglemans were discharged for Union activities and alleged that the discharges were for legitimate reasons. ' While the record shows that copies of the pleadings were served on an officer of the Association, the Association did not intervene in the proceedings. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with statements alleged to have been made by one Luther Thomas , deceased. Since the undersigned in his consideration of such testimony below makes no finding adverse to the respondent based upon such testimony , the motion to strike is denied. Oral argument by counsel for the Board and counsel for the respondent- was heard at the close of the first hearing and included in the transcript of pro- ceedings. The parties were afforded an opportunity to file briefs with the under- signed and a brief was received on behalf of the respondent following the first hearing. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : , FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is an Indiana corporation with its principal place of business in Richmond, Indiana, where it furnishes telephone communication facilities. During the 12-month period preceding the date of the hearing, the respondent purchased equipment, material, 'and supplies valued in excess of $50,000, 75 per- of which was shipped from points outside the State of Indiana,to Richmond. Respondent is the only operating telephone facility in Richmond, Indiana, and handles long distance calls over the facilities of the Indiana Bell Telephone Company and of the American Telephone and Telegraph Company. The respond- ent in its answer admitted that it is engaged in interstate commerce, and the undersigned so finds.' II. THE ORGANIZATIONS INVOLVED Indiana Telephone Workers Union, affiliated with National Federation of Telephone Workers, and Telephone Employees Association, unaffiliated, are labor organizations admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Prior to on or about April 1, 1945, there had been no organizational activity among the respondent's employees. During April 1945,8 Luther Thomas, a non- supervisory employee of the respondent, induced the Union to undertake the organization of respondent's exchange employees. On April 28 the Union- held a meeting at the City Hall in Richmond. Thereafter, Fred Bishop, the respond- ent's superintendent of equipment, engaged in conversations with respondent's employees relative to their becoming or remaining members of the Union. During the organizational campaign, Bishop talked to Earl C. Blose, a switch- man who had been employed approximately 18 years, and asked him if he knew that the Union was being organized. He also asked Blose why he had joined it. Blose replied in substance that he"had joined the Union because of differences in wages paid and because the respondent brought in new employees without experience and paid them more than those who had been employed for a long time. Bishop then asked Blose why he had not come to him in advance, and if he knew that the respondent and Harry D. Lontz, president of the respondent, "didn't think much of unions." Blose replied that until that time he had not thought much of unions "but it got to the place where there had to be something done." During the hearing, despite the admission in its answer, the respondent moved to dismiss the complaint on the grounds that it is not engaged in commerce within the meaning of the Act. The undersigned denied the motion 6 Unless otherwise indicated, all events referred to herein occurred in 1945. RICHMOND HOME TELEPHONE COMPANY 459 Bishop then requested Blose to talk to the employees in an attempt to change their minds on the Union and to form a company union. Blose replied that he would not do that, as organization had gone too for and practically every- body had joined the Union! During May, Bishop talked to Leonard S. Snider, an employee who had been employed from about January 5, 1944, to February 17, 1946. During the con- versation, in Bishop's office, Bishop discussed the Union generally with Snider, and stated that those employees who were responsible for the Union "would be removed eventually, and the Union broken up, and those who were non- members would be taken care of and those who were Union members would be left out." During this same conversation, Bishop spoke of a "company" union and stated in substance that if the employees would rather have a com- pany union than an outside organization "they should come to him and ask him. The company was not obliged to come (sic) to them and ask them if they wanted a company union."' Also during the Union drive, Bishop talked with Paul Markley, the chief switchman, who, prior to a consent election referred to below, was a member of the Union, and asked him whether he knew of any reason why the employees were joining the Union. He also asked Markley whether he had joined the Union.9 On April 28, Laura Stuck, the chief operator, whose discriminatory discharge is discussed below, attended a union meeting at the City Hall. On April 30, Bishop called her to his office and asked why he was not told of the union meet- ing. When Stuck stated that she did not think it was her duty to tell him any more "than anybody else" Bishop replied : You have gone about it the wrong way, * * * There isn't anyone here who has the right to organiz(,- a union against the company. There's not one who has been refused anything, * * * It is going to be just too bad for some of your (sic) older employees, the attitude you are taking about the Union.10 On or about May 4, Frank I. Braffett, the assistant to the president, addressed a "memo" to'Bishop and Verl Van Nuys" in which he stated that since hearing of the effort to organize the employees, he felt that if certain facts were called to their attention "they might hesitate to give up their independence as free people" and then proceeded with a discussion of the history of the respondent company, calling attention to improvements in working conditions and the fact that 2 weeks' vacation with pay was now given instead of 1 week ; that an expensive 'air conditiong system had been installed ; that a modern type rest room had been 7 This finding is based on the credited testimony of Blose. Bishop testified before Blose. He was asked whether he had had a conversation with Blose during April and May con- cerning unions and replied that he did not recall having had such a conversation, but stated that he would not say that he did not have such a conversation . From the above and the record , the undersigned is convinced that the conversation occurred substantially as found above. 8 This finding is based on the credited and uncontradicted testimony of Snider. While Bishop was called as a witness subsequent to Snider 's testimony, he was not questioned concerning it and such testimony was not otherwise denied 8 This finding is based on Markley 's credited testimony. Bishop stated that he remem- bered that unions were discussed between the two and testified : I just really don't remember enough about it to make sure of what I did say to him or what he said to me 10 This finding is based on the credited testimony of Stuck Bishop admitted that unions were talked about between him and Stuck on this occasion . He did not deny having made the above statements. 11 Van Nuys was superintendent in charge of all operations outside the exchange. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD installed for the operators and that the company paid for Christmas parties arranged by different departments and had sponsored a team in the Industrial Bowling League Attention was called to group life insurance that was available and that a plan for health insurance and hospitalization would be presented before long. After calling attention to the increase in respondent's taxes from 1935 to 1945, the memo added : "I feel that the Union organizer often tells only half the story and leaves his hearers with a false impression * * ' " On May 17, Braffett sent a second "memo" to Bishop and Van Nuys, dealing generally with the respondent's efforts to procure wage increases through action before the War Labor Board. The memorandum stated in part: Naturally we would prefer to deal with our employees personally, who can always talk to us individually or in groups, rather than through a union, whose officials primarily are concerned with your monthly daces. Granting however, that such an organization might be of some advantage in a large corporation such as General Motors or Bell Telephone Co. where personal recognition and merit is sometimes lost in the shuffle I sincerely believe our employees will be better off in the long run if they maintain their inde- pendence." [Italics supplied.] On June 27, respondent and the Union entered into an agreement for a consent election ; on July 10 an election was held, with the following results ; 52 employees voted for the Union, 4 voted against the Union, and 4 did not vote. On September 17, 1945, respondent and the Union entered into a collective bargaining contract. Conclusions It is clear from the foregoing summary of the evidence and from the record as a whole, and the undersigned finds, that with the inception of union activities among its employees, the respondent embarked upon a planned course of conduct calculated to discourage membership in the Union and to instill in the employees a fear of economic reprisal in the event of their continued affiliation therewith. It was admitted that the respondent's officials were opposed to any outside union., In April and May, (luring the Union's organizational campaign, Super- intendent Bishop tried to persuade Blose to initiate a company union, and he told Snider, in effect, that union adherents would lose their jobs while non-members would be favored by the respondent. Bishop also questioned the chief switchman as to his union affiliation and gave voice to the respondent's intention to' punish employees who might persist in their activities on behalf of the Union by telling the chief operator that it was going to be "too bad" for union adherents. During the same period, Braffett, the assistant to the president, added his personal dis- approval of the Union by causing to be distributed among the employees two cir- culars which clearly disparaged the Union and tended to restrain the employees from joining the Union by the repeated assertion that membership therein meant loss of freedom. The respondent does not contend, nor does it appear in the record, that any of the above-mentioned conversations between Bishop and the two supervisors, Chief Switchman Markley and Chief Operator Stuck, were motivated by a desire to preserve the respondent's neutrality concerning the Union's organizational activities. Bishop learned of Markley's union membership by a point-blank inquiry ; he also knew of Stuck's membership, for lie criticized her for attending 12 The respondent admits that the May 4 memorandum was mimeographed and circu. lated among the employees. As to the circulation of the May 17 memorandum the record is less clear : however, Blose testified that he had received a copy of it. Under the circum• stances disclosed by the record, the undersigned is convinced and finds that both documents were circulated among the employees. IICHMOND HOME TELEPHONE COMPANY 461 the first union meeting without keeping Bishop informed. He did not contradict Stuck's testimony that no management representative ever instructed her as to how to conduct herself towards the Union because of her position as a supervisor. 't'hat his threats were intended for rank and file employees also, and not only for the supervisors, is shown by his reference to "older employees" when speaking to Stuck. Under these circumstances, Bishop's remarks cannot be considered mere expressions of opinion among management representatives. During the hearing and on oral argument, the respondent contended that the memoranda circulated among the employees on May 4 and May 7 contain a mere expression of opinion on the part of Braffett and are therefore protected under the constitutional guarantee of free speech. The undersigned does not determine whether the memoranda, standing alone, constitute interference, restraint, and coercion within the meaning of Section 8 (1) of the Act, but does find that they constitute an inseparable part of the respondent's coercive course of conduct engaged in prior to the agreement for a consent election, and, when viewed in conjunction with the other facts completing a pattern of coercive conduct, as found above, the memoranda acquire a coercive character in the eyes of the employees. Upon the basis of the entire record. the undersigned concludes and finds that, by the totality of its conduct in discouraging and warning its employees against affiliation with or activities on behalf of the Union, in questioning them as to their union affiliation, in threatening its employees with economic reprisals in the event of their continued adherence to the Union, and in distributing circulars disparaging the Union and publicizing the respondent's opposition thereto, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discriminatory discharge of Laura Stuck (a) Events leading up to the discharge Stuck was employed by the respondent in April 1926 and assigned to work as an operator in the Long Distance Department. She was later promoted to the position of supervisor, then to that of an instructor and during July 1936 was promoted to the position of chief operator. During all the time she worked as chief operator she was under the supervision of Bishop. She joined the Union on or about April 28, 1945, and attended one or two union meetings thereafter. As set forth in Section III, A, above, Bishop called her to his office, 2 days later, on April 30, and asked why she had not told him of the union meeting and informed her, in effect, that the employees were organizing the Union in the "wrong" way. He ended the interview with a statement that "it is going to be just too bad for some of your (sic) older employees, the attitude you are taking about the Union." The record discloses, without dispute, that during the organizational activi- ties of the Union, neither Bishop nor any other company official gave Stuck any instructions as to how she should conduct herself toward the Union because of her position as a supervisor. The consent election agreement entered into between the respondent and the Union, on June 27, and approved by the Board's Regional Director, excluded Stuck and Chief Switchman Markley from the appropriate bargaining unit as supervisory employees. Prior to October 9, Bishop informed Stuck that he had talked with Chief Switchman Markley and found out what rate of pay he wanted and asked Stuck what rate of pay she would be satisfied with. Stuck replied that she wanted $180 a month "straight time," which would have resulted in a weekly increase of $1.04 in her pay. On October 9, Bishop called Stuck to his office and discharged her. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD i According to Stuck's testimony, their conversation on that occasion included the following : Q. What did he say and what did you say? A. He asked me about a case that had been taken up before regarding an operator, if I had known anything more about it, if I had found out anything more about it, and I told him "no", and he said"Well, I guess you and I had better get this over with," and he reached down in a drawer and got some papers and put them on his desk, and I said "What is that", and he said "This is what the company is doing for you. They are giving you a check for the amount of two hundred and some dollars and a sixty days' notice." Q. What did you say? A. I said `.You carried out your threat, didn't you?" Q. What did he say about that? A. He said "What is that"-? and I said "Well, you said `It is going to be too bad for some of you older employees, the attitude you are taking about the union' ", and he said "Well, I knew it had to come." Q. Is that all the conversation? A. That is all he said. I said "I think you must have lied to Mr. Lontz about me," and he said, "That had nothing to do with it, nothing whatever. It was decided by a five man board. They investigated it elsewhere." Q. Was that all the conversation? A. Yes. I said. "I am not accepting the check, however." Q During this nine years as chief operator in which Mr. Bishop was your immediate superior, did you ever have him criticize you or the quality of your work? A. No." (b) Contentions and testimony of respondent as to the discharge Respondent, in support of its contention that Stuck was discharged for cause and not because of her union activity, contends in substance and effect (1) that for a considerable time prior to her discharge Stuck permitted long distance calls to be delayed and accumulated for the purpose of forcing the respondent to pay her on a "straight time" basis and to remove her from under the supervi- sion of Bishop; (2) that she showed favoritism; (3) that, contrary to the rules of the respondent, she permitted favored operators to prefer and serve certain of tDe respondent's subscribers out of turn when it came to putting through long distance calls; (4) that she permitted and ordered operators to listen in on private conversations of Superintendent Bishop; and, (5) that she permitted favored operators to "dead-beads 14 long distance calls and thereby deprived the respondent of fees properly due for such service. As,.to contention (1), it is clear from the record that the respondent, like other telephone companies in the country, suffered from wartime shortages of equipment and experienced personnel. Respondent's witnesses so testified," is Bishop denied that Stuck made any reference to threats during the conversation and further testified that he did not "remember" that she had accused him of having lied to Lontz concerning her. Otherwise the above conversation was not contradicted by Bishop. It is undisputed that Stuck refused to accept the check for more than $200 offered to her at the time of her discharge. In view of the above and the record the undersigned is convinced that Stuck made the statements set forth above as to her reason for refusing the check so offered, and since Bishop, at no time, denied making the threats in the first instance, the undersigned credits Stuck's testimony above set forth. 14 Permitting calls to be made by employees without charge. 15 Chief Operator Sheffer testified : "That (wartime shortages) was standard everywhere over the United States." She contended, however , that there were times when, by proper arrangement of schedules , delays could be avoided. RICHMOND HOME TELEPHONE COMPANY 463 and counsel for respondent in oral argument before the undersigned admitted such was the fact. In support of this contention, respondent claims, as Chief Operator Sheffer testified, that several months before her discharge, Stuck had stated "there will be no services until I get what I want," and that "she wanted a direct contract from the company." The evidence discloses, however, that when Bishop called Stuck's attention to customers' complaints concerning delays, she replied that the delays were due to a lack of experienced operators, without whom it was impossible to give satisfactory service. Although in 1944 Stuck had voiced a preference for a monthly salary, there is no evidence that she ever demanded such payment until the time shortly before her discharge when Bishop asked her what she expected in the way of wages. This took place after Bishop had consulted Chief Switchman Markley as to his wage desires. There is no credible evidence that Stuck ever demanded that she be removed from the supervision of Bishop. In support of its assertion that Stuck was responsible for the large number of uncompleted or delayed calls, respondent offered testimony to the effect that, subsequent to Stuck's discharge, completed calls increased by a large percentage, or roughly from 1250 to 1700 per day, which increase, it contended, was due solely to the fact that Stuck was no longer in charge of the Toll Room. The record also contains uncontradicted testimony that new positions were added to the exchange equipment 2 or 3 days before Stuck's discharge. In addition, Sheffer, who was promoted to chief operator after October 9, admitted that new positions were installed after the discharge and Bishop further admitted that several experienced toll operators were added to the staff following October 9. Considering the foregoing testimony, the overburdened condition of telephone facilities generally due to wartune conditions during the period of these events, and the admitted fact that at no time prior to the discharge did the respondent tell Stuck that she was to blame for the delays in service, the undersigned finds that Stuck was not responsible for the delays and that the wartime delays were advanced by the respondent as a pretext to cover its real motive for her discharge. This contention is without merit. As to contention (2), the record discloses that,Louise Young and Ruth Genderon 16 were formerly employed by the respondent as operators. Neither of them has been employed since on or about October or November 1944. The record further discloses that during her employment, Young was ill much of the time and was frequently off duty ; that during the fall of 1944, while both Young and Stuck were ill at home, some 4 or 5 operators informed man- agement that if Young were permitted to return to work they would quit. When Stuck returned' to work early in December, 1944, Bishop told her that some of the girls had threatened to quit if Young were permitted to return. Stuck admitted that upon her return, even after Bishop had informed her of the girls' complaint, she tried to have Young recalled. She abandoned her effort, however, and Young never returned. Many of the respondent's witnesses and much of the testimony offered by the respondent referred to alleged favoritism shown by Stuck for Young and Genderon. The record shows that such investigation as was made by Bishop in connection with this complaint was made in 1944 or early in 1945. There was no evidence that Bishop considered that the investigation against Stuck warranted any criticism or that any was given. The-undersigned finds it unnecessary to determine whether Stuck in fact showed any favoritism toward either Young or Genderon for the reason that the conduct, if in fact it "Sometimes in the testimony referred to as Ruth Newhouse. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, occurred, was so remote in time, that it could not, under the circumstances shown to exist herein, have been either the reason or one of the reasons for the discharge of Stuck The resurrection of this remote complaint merely em- phasizes the lack of a better reason for the discharge This contention' is without merit. As to contention (3), which also has to do with Young and Genderon and likewise goes back to 1944, some 10 months before Stuck's discharge, the record discloses that certain subscribers of the respondent, among whom was one Gilbert, a banker, who is the son-in-law of Braffett, the assistant to the presi- dent, received preferred service. This contention like the foregoing one has to do with events that happened a long time before the discharge and is thus too remote to have been the reason or one of the reasons for the discharge. The fact that such reason was advanced under the circumstances shown to exist herein, further indicates respondent's lack of a justifiable reason for the discharge. This contention is without merit. As to contention (4), the respondent sought to support its position in this connection by the testimony of one Barbara Essenmacher, who testified, in substance, that Stuck on one occasion, when sitting next to her at the board when she had a call for Bishop, asked her to listen to Bishop's conversation, which Essenmacher testified she refused to do. She further testified that thereafter Stuck talked to Mrs. Bricker, another operator, following which the latter came and sat down next to Essenmacher and demanded that Essen- macher.listen to Bishop's telephone conversation, which Essenmacher testified she did not do. Stuck denied that she ever told any operator to listen in on Bishop's calls. The record discloses that Essenmacher was first employed in October 1944 and worked until on or about-June 28, 1945; that shortly prior to the first of July she requested a vacation, which request she discussed with Bishop who referred her to Stuck. Stuck refused to grant her a vacation at that time and informed her that if she insisted on the vacation she would have to make up her mind whether she wanted to retain her job or go on the vacation Essenmacher elected to quit and left her job on June 28. Essenmacher was rehired on Octo- ber 1, 1945, and thus at the time of the hearing had been employed some 14 to 15 months as a telephone operator. Essenmacher did not impress the under- signed as a credible witness. Her testimony disclosed a resentment toward Stuck because of the latter's refusal to grant her a vacation after she had been employed less than 9 months. Stuck, on the other hand, impressed the under- signed as a thoroughly credible witness. Her 20 years of service with the respondent, 9 years of which she served as Chief Operator, -indicates to the undersigned first, that she would not be disposed to eavesdrop on her superior, and second, that if she did determine to do so she was too intelligent to request a comparatively new operator to do the eavesdropping. Moreover, Bishop testi- fied that Essenmacher's testimony given at the hearing was the first time he had heard of the alleged request. Stuck's denial is therefore credited This contention is without merit Contention (5), which also pertains to Young and Genderon, refers to a time so remote from the date of Stuck's discharge that the undersigned does not believe that the events, even if they occurred as claimed by the respondent, ,constituted one of the reasons for the discharge. In this connetion Sheffer testified that employees were permuted to, on occa- sion, make "dead-head" calls; that they were not allowed to call from Center- ville (Indiana), which was Young's home, to Connorsville (Indiana), through Richmond, but could "dead-head" calls from Centerville to Richmond. Sheffer RICHMOND HOME TELEPHONE COMPANY 465 further testified that Young and Genderon were not the only employees that ever "dead-headed" a call out of Richmond and "that it is a common practice to' `dead-head'. independent (company) calls." It is clear from the above and the record that respondent's position in this connection, as in the preceding contentions, was taken in an effort to justify the discharge. This contention is without merit. (c) Conclusions as to the discharge The record affirmatively discloses that Stuck had been a satisfactory employee for almost 20 years, advancing progressively to positions of higher pay and greater responsibility until, in 1936, she was promoted to chief operator, in which capacity she carried a burden of responsibility throughout the period of wartime stresses. With respect to Stuck's union activities, the record discloses that the respond- ent was opposed to them and told her so ; indeed, as early as April 30, Bishop threatened her with the discharge which eventually materialized when he told her it "was going to be too bad" for union adherents. As to the reasons for the discharge, advanced by the respondent at the hear- ing, not only are they extremely trivial and unconvincing, but, because of their extreme remoteness in point of time, they indicate an attempt to confuse the issue and to conceal the real motive which prompted the discharge. It is signifi- cant that the respondent at no time found fault with, or personally criticized, Stuck for any of her alleged shortcomings, nor did Braffett, Bishop, or any other witness either testify or contend that Stuck was ever criticized or repri- manded for any of the alleged improper acts or conduct. While it is true that on September 25 Stuck resigned her union membership and the respondent was aware of this fact at the time of the discharge, it must be borne in mind that her resignation does not necessarily indicate a loss of interest in union affairs or abandonment of the principle of collective bargaining by the chief operator on her own behalf. Knowing that Stuck's resignation gave no assurance of future compliance with the respondent's point of view in union matters, the respondent had reason to expect, and it did expect, that Stuck, would remain sympathetic towards the Union. Accordingly, relying upon Stuck's apparent divorcement from the remain- ing employees, the respondent discharged her in order to rid itself of a union sympathizer. This conclusion is further buttressed by the fact that following the discharge, according to the uncontradicted and credited testimony of Markley, the chief switchman who had resigned from. the Union under circumstances identical to those of Stuck, Bishop told Markley to "watch [his] step for [his] own benefit." In arriving at this conclusion, the undersigned has considered the fact that Stuck was discharged shortly after she requested an increase in pay, and that such demand could have provoked her dismissal. However, no contention what- ever is made that the question of wages was a factor in the respondent's decision. Rather, it is clear that Stuck requested a raise only in response to Bishop's inquiry as to her desire in the matter, and that the respondent had, a day or two previously, granted a wage increase to Chief Switchman Markley, whose position was similar to Stuck's. Similarly, due consideration has been given the fact that Stuck was a super- visory employee and that the respondent's right to protect its neutrality with respect to its employees' union affairs might be placed in issue. It does not appear that Stuck at any time, either before or after her resignation from the 466 DECISIONS OF NATIONAL LABOR RELATIONS i BOARD Union, sought to influence her subordinates in their choice of a bargaining repre- sentative. Aside from what effect her mere membership in the U*iion might have had upon the thinking of her subordinates, the record is barren of any other evidence of activity on her part which might be said to have compromised, or tended to compromise, the respondent's neutrality.17 It is of equal significance that neither at the time of the discharge nor at the hearing did the respondent contend that it acted to protect its neutrality." Indeed, Superintendent Bishop admitted that he never instructed Stuck as to how she should comport herself with respect to the Union's organizational activities. Under these circum- stances, Stuck's supervisory status has no bearing upon the determination of the respondent's real motive in discharging her. Upon the basis of the entire record the undersigned is convinced and finds that the respondent discharged Laura Stuck on October 9, 1945, and thereafter refused to reinstate her to her former or equivalent position, because of her prior mem- bership in, and continued sympathy for, the Union, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The alleged domination and interference with the formation and administration of the Association Luther Thomas was employed by the respondent as a cable splicer and switch- man. On or about April 1945, he got in touch with certain officers of the Union and induced them to undertake the organization of the telephone exchange em- ployees of the respondent. Thomas continued active on behalf of the Union until after the consent election had been held and the Union was designated as bargaining agent. When the time came for the selection of officials for the local, Thomas became a candidate for the office of steward. He was unsuccessful in his effort and was defeated at the election. As a result of his defeat for union office Thomas "got mad," with- drew from the Union, and started, "a competing union." On or about August 14, Thomas suggested to employee Blose that the latter drop out of the Union "and join a union that he was going to start." When Blose said that Thomas' proposed union would never get any place, Thomas replied that he, "was talking with authority" and if Blose did not leave the Union then he "might not have a chance later." Subsequently Thomas informed Blose that he had organized his "union." During the latter part of October 1945, Bishop interviewed, and subsequently hired, Norma Atkins, an experienced toll operator. She was required to take a physical examination before taking over her position. On the night before she went to work Thomas called at her home and stated that Bishop had sent him. "In order to get rid of him," Atkins signed an Association application card after Thomas had spent some 2 hours or more soliciting her membership. Atkins testified that she did not thereafter inquire of Bishop whether or not he had sent Thomas to see her. Sara Meyers, who had formerly been employed as an operator and had quit ,her job during 1944, was rehired in October 1945. Shortly after she returned to work, she had a conversation with Thomas , concerning which she testified its follows : 17 See Matter of 'dlimax Engineering Company, Division of General Finance Corporation, 66 N L it. B. 1359. 18 See Matter of S W. Watkins & Sons, 53 N. L. it. B. 235. RICHMOND HOME TELEPHONE COMPANY 467 A. He told me that he was forming a union of his own, backed by the Com- pany and if I joined this union that in September 1946 when the contract was to be renewed that I would have a better standing with the Company. Q. Was that all of the conversation? A. It was quite a bit more, but I don't remember that. Q. Did you sign a card? A. Yes, I did, to keep him from calling me. During October 1945, following a grievance committee conference with manage- ment concerning a minor matter, Bishop complained to the union representatives that Mallie Stigleman was causing too much confusion among the operators by engaging in union activities on respondent's property and time. Whereupon John M. Sandlin, chief steward for the Union, stated "that it was not Mrs. Stigleman that was keeping the operators confused ; it was Mr. Thomas calling them up at all hours during the day and night, on duty and off duty, to get them to withdraw out of the Union." According to Sandlin's uncontradicted and credited testimony, Bishop then said : Well, I will make a bargain with you. If you stop Mrs. Stigleman 18 from her Union activity on the company time, I will stop Mr. Thomas. Sandlin further testified, without contradiction, that he then asked Bishop, "If the company has nothing to do with Mr. Thomas' activity, how can you stop him?", but that Bishop "ignored" this query. At a subsequent grievance meeting between representatives of management and the Union, and after the grievance issue had been discussed, Bishop again complained of Stigieman's activity during working hours and accused Sandlin of not doing anything to stop her activity. Bishop was then informed that Thomas was using President Lontz' name in connection with his organization plans. Bishop thereupon said: I will stop that, I will go better than that ; I will have someone higher up than me stop him. Under date of November 12, 1945, Bishop wrote Thomas as follows: Word has come to me that you are in talking to the different employees that you are using some of the names of the officials of the company in doing so. In some cases referring to the company as such. Whether within or without the building you must refrain from this at all times. Other activities without the building you must absolutely not impli- cate the company or any individual official. Please don't let anything be said that we will be compelled to mention this again. ( Signed ) FRED BISHOP. Shortly prior to March 3, 1946, Thomas died. Under date of March 3 a Mrs. Jennie I. Borton wrote the respondent and stated that she was sending, under separate cover, Thomas' telephone and some union literature. She also wrote: I do not feel it is my duty to destroy. Although Mr. Thomas ask me to destroy all the material pertaining to the union, I am leaving that part of it to you. Braffett testified that the correspondent had received the box referred to by Mrs. Borton and that it contained some Association authorization cards. Coun- iy The record conclusively discloses that at that time Mrs Stigleman was very active in soliciting membership and in collecting dues on behalf of the Union on the respondent's property, both during and out of working hours . This activity was admittedly done contrary to the terms of the contract between the Union and the respondent. 712344--47-vol. 70-31 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sel for the respondent, disclaiming any interest in the cards, proposed to deliver them to the Board's attorney or to the Examiner. Since they were not marked for identification or offered as exhibits, the Examiner did not accept the offer. The cards were then turned over by counsel for the respondent to Barbara Essenmacher, who had testified that she is secretary of the Association. Counsel for the Board contends in substance that Superintendent Bishop's attempts to induce employees Blose and Snider to undertake the formation of a company union, Thomas' knowledge of Atkins' employment in advance of her reporting for work, Bishop's failure publicly to disavow Thomas' representations of management support, and his' offer to "settle" with the Union by curtailing Thomas' activities, prove that the respondent violated Section 8 (2) of the Act. It is true that the respondent was opposed to the organization of its em- ployees by an outside union, and that, prior to the consent election, it suggested to the employees, the formation of a company union. It is equally clear, as evidenced by the subsequent discriminatory discharge of the chief operator, that the respondent maintained a continued attitude of opposition to the Union after its certification as the statutory representative of the employees. There is, how- ever, no persuasive evidence in the record to support a finding that the respondent authorized Thomas in- his efforts to organize the Association or assisted him in any way in its formation or support. Originally Thomas was very active on behalf of the Union and abandoned it to form a competing organization only because of resentment in not being elected shop steward. There is no contention that Thomas was in fact a supervisory employee or that any employees might reasonably have believed him to be a representative of management. Indeed, it was Thomas who first approached the Union's representatives and requested that they organize the respondent's employees., The mere fact that Thomas' activities were aimed at a goal also sought by the respondent, does not warrant the inference that the two acted in concert. The undersigned sees no reason in the record to discredit the unimpeached testimony of Braffett as to how the card records of the Association came into the respondent's possession. Thomas' knowledge of Atkins' employment before she assumed her duties might have been obtained from a number of sources other than the management. Any suspicion that arises from other details in the record, such as Bishop's offer to control Thomas and the fact that he per- sonally typed the November 12 letter of admonition to Thomas instead of having his secretary do so, seems to be offset by the respondent's conduct in negotiating and executing a collective bargaining agreement with the Union and, according to the Board's witnesses, living up to its terms. Considering the entire record,, the undersigned finds that the evidence does not support a finding that the respondent dominated and interfered with the formation or administration of the Association, or in any way assisted it or contributed support thereto. Accordingly, the undersigned will recommend that the complaint, insofar as it alleges a violation of Section 8 (2) of the Act, be dismissed. D. The discharge of Mallie Stigleman and Ransom Stigleman 1. Mallie Stigleman The complaint, as amended, alleges that the respondent, on April 8, 1946, discharged Mallie Stigleman and on April 9, 1946, discharged Ransom Stigleman because either or both of them gave testimony under the Act ; gave information to and otherwise assisted Board agents in the investigation of charges herein ; and because of their membership in and activities on behalf of the Union. RICHMOND HOME TELEPHONE COMPANY '469 (a) Events leading up to the discharge Mall'ie Stigleman, the wife of Ransom S(igleman, was hired as a cleaner and matron on March 22, 1943. She joined the Union and became active on its behalf. She was called as a witness for the Board in the instant case and testified on March 27 and 28, 1946 Following the first hearing herein, and on April 8, 1946, she was discharged by the respondent. Seveial weeks after the discharge she was given a Separation Report which stated that she was "discharged for mis- conduct in connection with work." (b) Contentions of respondent and its witnesses as to the discharge The respondent contends in substance: (1) that from her testimony given at the hearing herein it learned that Mallie Stigleman had for some time past and on many occasions made it a practice of eavesdropping upon conversations between respondent's officials by secreting herself in the basement of respondent's building under the office of the president and under the office of the assistant to the president and listening to or attempting to listen to the private conversations of such officers; (2) that in violation of the contract between the Union and the respondent, she engaged in union activities during working hours; and (3) that she testified falsely at said hearing. As to the first contention, Mrs. Stigleman testified that she listened to conversa- tions between Bishop and Lontz, under the latter's office; that she listened to conversations under Braffett's office on different occasions, including a time when respondent's officials were conferring with its counsel in connection with the instant case, and on a further occasion when respondent's officials were con- ferring with a Field Examiner for the Board. The record discloses that prior to her testimony in the first hearing herein the respondent had no knowledge of Mrs. Stigleman's practice of eavesdropping on its officials. Mrs. Stigleman testified that she heard the conversations abo^'e referred to with the aid of a rubber tube which she had inserted in a "T" joint through which certain wires or cables passed from the basement through the floor and into the offices above. She stated further that other than the rubber tube and the "T" joint she had used no amplifying machinery of any kind. On the basis of the testimony of four disinterested witnesses introduced by the respondent who tested the apparatus, and after visiting and viewing the premises, the undersigned is convinced and finds that it would be utterly impossible for Mrs. Stigleman or any other person to have heard a conversation between Lontz and Bishop on October 9, in the manner and with the aid of the apparatus as testified to by her, in view of which the undersigned rejects Mrs Stigleman's testimony wherein she testified that she overheard a conversation between Lontz and Bishop on October 9, and wherein she testified to having heard other conversations of respondents officials in a like manner and with the aid of such apparatus. Since the undersigned' does not credit Mrs Stigleman's testimony as to the manner and means by which she claims to have heard the alleged conversations related by her, he makes no findings adverse to the respondent, upon the basis of any of her testimony. This contention has merit As to the second contention, the record discloses that the Union and the re- spondent executed a collective bargaining agreement under date of September 17, 1945, which provided, inter aha, that there should be no union activity during working hours. Mrs. Stigleman in her testimony admitted having engaged in such activity in violation of the contract. The evidence discloses that on two separate occasions the respondent's officials complained of her activities to the 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's grievance committee and were advised that such activity would be dis- continued. While the respondent was aware of Mrs. Stigleman's activity and complained thereof, it neither discharged nor personally warned her at that time. The respondent was justified in considering such activity at the time it discharged her. - This contention has merit. As to the third contention, having to do with alleged falsification of testimony, the respondent in its answer to the amended complaint alleged, in addition to the reasons referred to in contentions 1 and 2 above, that it discharged Mrs. Stigleman because she gave false testimony at the first hearing herein. In this connection Lontz testified that at the time he instructed Bishop to dis- charge both Mr. and Mrs. Stigleman for misconduct, he directed that Mrs. Stigle- man be discharged for "falsehood as well as for misconduct." On cross-examina- tion Lontz testified that the "falsehood" was only one of two or three other reasons for the discharge. Under date of May 13, 1946, respondent, in a state- ment of its contentions for the discharges made to the Indiana Employment Security Division, stated in part, "that the said Mallie Stigleman gave false testimony at the time of a hearing before the National Labor Relations Board at Richmond, Indiana, on the 27th day of March, 1946 .. From the fore- going it is clear that the respondent gave substantial consideration to the fact that Mrs. Stigleman had given testimony, which was, in the opinion of the re- spondent, false testimony. An employer may not discharge an employee because he has filed charges or given testimony under the Act. In the Matter of The Kramer Company, et al. 120 the Board said : Section 8 (4) of the Act expressly prohibits discharge or any other form of discrimination against an employee "because he has filed charges or given testimony under the Act." We have found that the respondents de- termined not to reemploy Silvick because she had filed charges which the respondents deemed "false." The prohibition of the statute against dis- crimination is effective irrespective of whether the employer believes the charges to be false or whether the ultimate proof sustains their validity. To hold otherwise would be to subject an employee, who invoked the pro- tection of the Act, to the peril of discrimination without redress in every case where the employer considered the charges false or where, for what- ever reason, the entire proof after a trial upon the merit failed to sustain the validity of the charges filed To that extent such holding would nullify the express statutory protection afforded employees against the unfair labor practice condemned by Section 8 (4) of the Act. This contention is without merit. (c) Conclusions as to the discharge It appears that the respondent in its discharge of Mrs. Stigleman relied upon and gave substantial consideration to three major grounds for so doing. As found above, two of the reasons have merit and a third is without merit in that it is wholly illegal and is prohibited by the Act. Since the discharge was moti- vated in a substantial part by in illegal motive it becomes a discriminatory one under the Act. The fact that the respondent was motivated in part by legal reasons does not remove the taint of illegality found in the third contention above. 20 29 N. L R B 921. RICHMOND HOME TELEPHONE COMPANY 471 It is therefore found that by the discharge of Mallie Stigleman on April 8, 1946, thereby discriminating in regard to her hire and tenure of employment, and discouraging membership in the Union, the respondent has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Ransom Stigleman (a) Events leading up to the discharge Ransom Stigleman was first employed by the respondent in 1925 as a janitor and cable helper and remained in its employ for 21/ years. He was re-employed on October 7, 1936, as a janitor, and continued in such work until his discharge on April 9, 1946. He testified, without contradiction , that he was a member of the Union. (b) Evidence and contentions The complaint alleges that the respondent discharged Ransom because of his membership in and activities on behalf of the Union , in violation of ,Section 8 (3) of the Act. It also alleges that his discharge constituted a violation of Section 8 (4) of the Act, apparently alleging that Ransom either gave testimony in the first hearing herein or that he assisted the Board in its investigation and preparation preliminary to the hearing. The respondent denies these allega- tions and contends that Ransom's discharge was caused by his conspiring with his wife in her eavesdropping activities and his own surreptitious spying upon company officials during working hours. Aside from his membership in the Union , it does not appear that Ransom engaged in any union activities . He did not testify during the first hearing herein. No evidence was offered to prove that he at any time or in any way assisted Board. agents in the investigation of any of the charges herein. Although not clearly stated, the Board's attorney apparently urges that the timeliness of Ransom 's discharge, following quickly upon that of his wife, indicates a discriminatory motive, and that, in some unspecified manner, his wife's activities, revealed in the course of a Board hearing, bring Ransom's discharge within the purview of Section 8 (4) of the Act. Such conjecture, however, does not tend to support the charge of discrimination as to Ransom. There is evidence supporting the respondent 's contention that Ransom aided his wife in her improper activities , and that, despite his realization that such conduct was wrong, he did not report it to his superiors . It appears from his own testimony that he knew his wife had "eavesdropped and overheard con- versations between the Company officials," that he knew from which points she listened on such occasions, that he had seen her stand on boxes in the basement in order to overhear conversations in the room above, and that he never reported such activities to any officials of the respondent . Ransom also testified that although the basement supply room door had a fixed lock which could be opened or closed from inside or out, he had attached a screen door hook and eye-to the inside in order to insure privacy on certain occasions ; he explained this inside latch as necessary because his wife sometimes changed into working clothes in that room. (c) Conclusions In view of this testimony, there can be no question but that Ransom assisted his wife in her improper activities in the respondent 's" premises and during working hours. At the time of the discharge, Bishop told Ransom that it was 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "inconceivable that he remain an employee of this Company in connection with the discharge of his wife," and, a few weeks later, a separation notice was delivered to Ransom, stating that he had been discharged "for misconduct in connection with work." Clearly the respondent was justified in discharging Ransom for his improper conduct so revealed in the record. As to the second asserted ground for discharge, that Ransom neglected his work in order to spy on management representatives from open windows and over door transoms while they discussed confidential matters, the evidence is conflicting. Several officers of the respondent testified generally that they had been aware of such conduct during the time of the events giving rise to the charges herein. Ransom vigorously and directly denied any such conduct. The under- signed finds it unnecessary to make any findings on this testimony inasmuch as, independently of this particular assertion of misconduct, the record shows suffi- cient basis for his discharge Upon the basis of the entire record, the undersigned is convinced and finds that Ransom Stigleman was discharged because of improper activities carried on in the course of his employment, and that, in discharging him, the respondent did not commit an unfair labor practice within the meaning of Section 8 (3) or (4) of the Act. _ IV. THE EFFECT OF 1HE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the sei-eral States, and tend to lead.to labor disputes burdening and obstructing commerce and the free flow of commerce. V. IHl3 REMEDY Having found that the respondent has engaged in certain unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The undersigned has found that the respondent discriminated in regard to the hire and tenure of employment of Diallie Stigleman because she gave testimony under the Act. The undersigned has further found above that Mallie Stigleman was guilty of flagrant misconduct in that she eavesdropped and attempted to listen to private conservations between officials and representatives of the re- spondent and that contrary to the provisions of the contract between the Uifion and the respondent she engaged in union activities during working hours In view of the misconduct referred to herein the undersigned is of the opinion that the policies of the Act would not be effectuated by ordering her reinstatement to her former or substantially equivalent position or by ordering that she be made whole for any loss of pay she may have suffered by reason of the respondent's discrimination against her. It is therefore recommended that Mallie Stigleman not be reinstated or be awarded back pay for any time lost. The undersigned has found that the respondent discriminated in regard to the hire and tenure of employment of Laura Stuck, thereby discouraging member- ship in the Union In order to effectuate the policies of the Act it will be recom- mended that the respondent offer her immediate and full reinstatement to her former or substantially equivalent position without prejudice t9 her seniority or other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of the respondent's discrimination against her by pay- ment to her of a sum of money equal to that which she normally would have RICHMOND HOME TELEPHONE COMPANY . 473 earned as wages from October 9, 1945, the date of the discrimination, to the date of the offer of reinstatement, less her net earnings 2' durilig said period In view of the unfair labor practices found to have been committed by the respondent, constituting an independent violation of Sec,tifn 8 (1), as well as a violation of Section 8 (3) of the Act, the undersigned is-O' the opinion and finds that there is real danger of the commission by the r^,,pondent of other and additional unfair labor practices in the future. The unfair labor practices thus far committed-have led not only to interference, restraint, and coercion, but to discrimination of such a degree as would cause an average reasonable employee to fear that union or concerted activity on his part might lead to further dis- criminatory discharges. This disclosed attitude of opposition by the respondent toward organization of its employees and the continuing threat which it implies, requires a cease and desist order as broad as the threat. It will therefore be recommended that the respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in their rights to self-organization for the purpose of collective bargaining as guaranteed in Section 7 of the Act 22 Upon the basis of the above findings of fact and the entire record in the case, the undersigned makes the following: - CONCLUSIONS OF LAw 1 Indiana Telephone Workers Union, affiliated with National Federation of Telephone Workers, and Telephone Employees Association, unaffiliated, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Laura Stuck, thereby discouraging membership in the Union, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. By discharging Mallie Stigleman on April 8, 1946, because she had given testimony under the Act, thereby discouraging membership in a labor organiza- tion, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) and 8 (4) of the Act. 5 The respondent has not dominated or interfered with the formation and administration of the Association or contributed support thereto in violation of Section 8 (2) of the Act. 6 By the discharge of Ransom Stigleman on April 9, 1946, the respondent has not violated Section 8 (3) and (4) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. a By "net earnings " is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company, 8 N. L. It B 440 . Monies received tor work performed upon Federal, State, county, municipal, or other work- relief projects shall be considered as earnings . See Republic Steel Corporation v N L R' B , 311 U. S 7 22 See May Department Store Company, etc v N L R B, 326 U S. 376; Matter of Washington National Insurance Co., 64 N. L R. B 929 ; Matter of C D Beck & Company, 63 N. L. R. B 1426, Matter of Caroline Mills, Inc, 64 N. L R. B. 200. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDATIONS Upon the basis of the abo•ye findings of fact and conclusions of law the under- signed recommends that uichmond Home Telephone Company, Richmond, In- diana, its officers, agents., successors, and assigns shall : 1. Cease and desist frC,m : (a) Discouraging rle/nbership in Indiana Telephone Workers Union, affiliated with National Federation of Telephone Workers, or any other labor organization of its employees, by discharging and refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of em- ployment or any condition of employment ; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights to -self-organization, to form labor organi- zations, to join or assist Indiana Telephone Workers Union, affiliated with Na- tional Federation of Telephone Woikers, of any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act; (c) Discharging or otherwisg discriminating against any of their employees for giving testimony under the Act. 2 Take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Offer Laura Stuck immediate and full reinstatement to her former or a substantially equivalent position without prejudice to her seniority or other rights and privileges ; (b) Make whole Laura Stuck for any loss of pay she may have suffered by reason of the respondent's discrimination against her, in the manner provided in the section entitled "The remedy" ; (c) Post at its exchange in Richmond, Indiana, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, after being signed by the respondent's representative, shall be posted by respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material ; (d) Notify the Regional Director for the Eleventh Region, in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps have been taken to comply therewith. It is further recommended that the complaint, insofar as it alleges a violation of Section 8 (2) of the Act, and a discriminatory discharge of Ransom Stigleman, be dismissed. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may, within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a a ^ durir RICHMOND HOME TELEPHONE COMPANY 475 statement in writing, setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as-he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such state- ment of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. Any party desiring to submit a brief in support of the Intermediate Report shall do so within fifteen (15) days from the date of the entry of the order transferring the case to the Board, by filing with the Board an original and four copies thereof, and by immediately serving a copy thereof upon each of the other parties and the Regional Director. PETER F. WARD, Dated May 29, 1946. Trial Examiner. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to recommendations of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act. we hereby notify our employees that : We will not in any manner interfere with, restrain, or coerce our employees- in the exercise of their right to self-organization, to form labor organizations, to join or assist Indiana Telephone Workers Union, affiliated with National Federation of Telephone Workers, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We will offer to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Laura Stuck All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization, and because any employee has given testimony under the Act. RICHMOND HOME TELEPHONE, COMPANY, Employer. By ------------------------------------------ (Representative) (Title) Dated -------------------- NoTE : Any of the above-named employees presently serving in the armed force of the United States will be offered full reinstatement upon application in accord- ance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.