Tallapoosa River Electric Cooperative

474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tallapoosa River Electric Cooperative and Local 443, Interna- tional Brotherhood of Electrical Workers, AFL-CIO. Case No. 10-CA-3770. August 13, 1959 DECISION AND ORDER On March 31, 1959, Trial Examiner James T. Rasbury issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the alleged unfair labor practices, and recommending that the complaint herein be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Respondent filed a brief in support of the Intermediate Report. 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 Interme- diate Report, the exceptions and briefs, and the entire record in the case, and adopts the Trial Examiner's findings and conclusions only to the extent consistent herewith. 1. In view of Estes' admission that he told Yancey, the line fore- man, that he would drop a "hot stick" on his head, and Yancey's testi- mony that he considered the statement a threat, the Trial Examiner found that the Respondent was not illegally motivated in terminating Estes' employment. In his exceptions, the General Counsel contends that the Trial Examiner failed to consider the record as a whole, particularly Estes' undenied and credible testimony to the effect that Drake, the Respond- ent's plant manager, told him at the time of his discharge, in sub- stance, that he was being discharged because of his union activities. The General Counsel also attacks the Trial Examiner's finding that Yancey believed Estes' statement to have been a threat, in view of Yancey's admission that he would report a man who had threatened to drop a "hot stick," if he thought the employee meant it, and his failure to report this incident until questioned by Boyd. As further evidence in support of his contention that the Respondent was illegally motivated in discharging Estes, the General Counsel points to unde- nied and credible testimony to the effect that Yancey told employee Lamb that he had forgotten about the alleged threat, and to the Respondent's failure to seek Estes' version of the "hot stick" incident prior to his discharge. We find merit in the General Counsel's contentions. While the Trial Examiner credited Yancey's testimony that he considered Estes' statement a threat, at no point in the Intermediate Report did he dis- credit or even mention Estes' uncontroverted testimony regarding 124 NLRB No. 55. TALLAPOOSA RIVER ELECTRIC COOPERATIVE 475 Drake's statement to him at the time of the actual discharge. In this connection, Estes testified that shortly after his discharge was an- nounced to the employees,' Drake had a conversation with him in which he stated : Estes, I sure hate to fire you. We are fighting this thing, and I'm firing you on advice of the attorney. . . . You know, of course, you can file charges against us on this and appeal this, if you want to.... Of course you know you can't get a job around here anywhere now. None of the mills or anything like that will hire you. I will give you a recommendation on your working to wherever you want to go, but I'll have to include about your efforts on the union.2 In view of Drake's statement, as well as Yancey's failure to report the "hot stick" incident despite his assertion that he would report a man who had made such a threat if he thought the employee meant it, Yancey's statement to Lamb that he had forgotten the incident, and the Respondent's failure to seek Estes' version of the incident prior to the discharge, we find, contrary to the Trial Examiner, that Re- spondent discharged Estes because of his union activities, in violation of Section 8 (a) (3) and (1) of the Act, and that it sought to utilize. the "hot stick" incident as a pretext to cover its unlawful motivation. 2. The Trial Examiner found that Superintendent Boyd's inter- rogation of Shaver on November 20, concerning his attendance at a union meeting on the night of November 18, when he was supposed to have been on duty at the plant, did not "standing alone" violate Section 8(a) (1) of the Act. As found by the Trial Examiner. Boyd not only inquired concerning the reason for Shaver's absence from the plant, but also sought to learn the identity of other employees who had attended the iii-don meeting. This interrogation occurred at about the same time as Respondent's discharge of Estes, which we have found to be violative of the Act and, therefore, does not stand alone. Under these circumstances, we find, contrary to the Trial Examiner, that Boyd's interrogation of Shaver constituted interference, restraint, and coercion within the meaning of Section 8(a) (1) of the Act., i On November 21, 1958, according to Estes ' undenied testimony , all employees were assembled and Plant Manager Drake told them , in substance, that Respondent could not prevent them from joining the Union , but could prevent threats from being made. He then mentioned the ';hot stick" incident and said the person who made this statement is being discharged . Whereupon , Superintendent Boyd told Estes to go to the front office and "turn in any property he had and pick up his check . . . that he was fired." 2 Although called as a witness by Respondent , Drake was not questioned concerning this statement. 3 Blue Flash Express, 109 NLRB 591., 593; Mid-South Manufactoring Co., Inc., 120 NLRB 230 ; California Compress Company, Inc., 121 NLRB 1388. Member Jenkins does not join in the finding of an independent violation of Section 8(a) (1) of the Act as, in his opinion, Shaver 's admitted absence from the Respondent's 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in sections 1 and 2, above, occur- ring in connection with the Respondent's operations described in section I of the Intermediate Report, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent discriminatorily discharged Charles V. Estes, we shall direct the Respondent to offer him imme- diate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privi- leges and to reimburse him for any loss of pay he may have suffered by payment to him of a sum of money equal to the amount he would have earned as wages from the date of the discrimination to the date of the offer of reinstatement, less his net earnings during said period. Determination of the amount of back pay due shall be based on the quarterly method of computation established by the Board in the F. W. Woolwort/t Company 4 case. The unfair labor practices found herein, including the discrimina- tory discharge of Estes,' demonstrate on the part of the Respondent a fundamental antipathy to the objectives of the Act, compelling an inference that the commission of other unfair labor practices may be anticipated in the future. Accordingly, we shall direct that the Re- spondent cease and desist from in any manner interfering with, restraining, or coercing employees in the exercise of the rights guaran- teed by Section 7 of the Act. Upon the above findings of fact and upon the entire record in the case, we hereby reject the Trial Examiner's conclusions of law num- bered (3) and (4) and make the following additional CONCLUSIONS OF LAW (3) By discharging Charles V. Estes because of his union activities, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. building, where he was supposed to be , quite properly actuated Boyd's inquiry as to his whereabouts , and in the context of this conversation , when Shaver explained his absence by stating that he had attended a union meeting and Boyd asked who else attended, that this-without more-could not be said to have reasonably tended to restrain em- ployees in the exercise of rights guaranteed by the Act . Blue Flash Express, Inc., supra. 4 90 NLRB 289, 291-294. As the Trial Examiner dismissed the complaint herein we shall, in accord with the Board 's customary practice , abate back pay for the period between the date of the Intermediate Report and the date of our Decision and Order. 6 N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d '532, 536 (C.A. 4). TALLAPOOSA RIVER ELECTRIC COOPERATIVE 477 (4) By the foregoing conduct and by unlawfully interrogating its employees, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. (5) The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Tallapoosa River Electric Cooperative, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Local 443, International Brother- hood of Electrical Workers, AFL-CIO, or in any other labor organi- zation of its employees by discharging, refusing to reinstate, or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act. (b) Interrogating its employees as to their union activities, and as to the identity of employees engaged in union activities in a manner constituting interference, restraint, or coercion in violation of Sec- tion 8 (a) (1) of the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above named or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as author- ized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer Charles V. Estes immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of the discrimination, as provided in the section of this Decision and Order entitled "The Remedy." (b) Preserve and make available to the Board or its agents upon. request, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of back pay due and the rights of employment under the terms of this Order. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its plant in Lafayette, Alabama, copies of the notice attached hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Tenth 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 a period of 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 Tenth Region in writing, within 10 days from the date of this Order, as to what steps the Respondent has taken to comply herewith. MEMBER RODGERS took no part in the consideration of the above Decision and Order. 6 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX 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, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in Lodge 443, Inter- national Brotherhood of Electrical Workers, AFL-CIO, or in any other labor organization of our employees, by discharging or in any other manner discriminating against them in regard to their hire or tenure of employment, except to the extent per- mitted by Section 8 (a) (3) of the Act. WE WILL NOT interrogate our employees as to their union activities or the identity of employees engaged in union activities in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1), or in any other 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 the above-named union or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as TALLAPOOSA RIVER ELECTRIC COOPERATIVE 479 authorized by Section 8(a) (3) of the Act. All our employees are free to become or remain members of the above-named or any other labor organization. WE WILL offer Charles V. Estes immediate and full reinstate- ment to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges previ- ously enjoyed by him, and make him whole for any loss of pay suffered by him as the result of the discrimination against him. TALLAPOOSA RIVER ELECTRIC COOPERATIVE, Employer. Dated---------------- By------------------------------------- (Representative) (Title) 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 STATEMENT OF THE CASE This proceeding, with gall parties represented, was heard before the duly designated Trial Examiner in Lafayette, Alabama, on March 3, 1959, on complaint of the General Counsel and answer of the Tallapoosa River Electric Cooperative, herein called the Respondent. The issues litigated involved the alleged violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Briefs were submitted by the counsel for the General Counsel and the Respondent. Following the close of the hearing the Trial Examiner received by letter a stipulation signed by all parties hereto, agreeing to certain transcript corrections. The stipulation shall be received and is herewith made a part of the official record of this proceeding and is approved. FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, an Alabama corporation, maintains its principal office and place of business at Lafayette, Alabama, where it is engaged as a public utility in the sale and distribution of electricity. During the calendar year 1957, a representative period, the total gross revenue of Respondent was $487,786.11, of this amount $8,337.84 was income from interstate operations. From these undisputed facts I find that it will effectuate the policies of the Act to assert jurisdiction herein.' H. THE LABOR ORGANIZATION INVOLVED Local 443, International Brotherhood of Electrical Workers, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES There is practically no dispute as to the events that occurred which led to the dis- charge of Charles Vernon Estes. Estes was the only employee terminated. The primary issue involved herein is one of motivation. At the time of his discharge on November 21, 1958, Charles Vernon Estes had been employed by the Respondent about 7'/2 years. In July of 1958 Estes became active in attempting to persuade his fellow workers to join with him in an effort to have a union represent the employees. In this connection Estes testified that he "drew up a petition" which the employees signed, and thereafter he contacted a union representative to meet with the employees. On August 26, 1958, Arnold Madison, an International representative for the International Brotherhood of Elec- "See Sioum Valley Empire Electric Association, 122 NLRB 92; also, Case No. 10-RC- 4228, unpublished, Issued February 4, 1959, wherein the Board asserted jurisdiction over this respondent. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trical Workers, met with Estes sand a number of other employees of Respondent in Estes' father-in-law's house. At this meeting Madison explained the procedure to pursue in gaining union recognition and provided Estes with union authorization cards which Estes in turn distributed to Respondent's employees. Thereafter there were either three or four meetings held-which have been referred to as union meet- ings-and on each occasion Estes made the arrangements and notified his fellow employees of the time and place. As union authorization cards were signed they were turned over to Estes. On November 18, 1958, a representation hearing was conducted by the National Labor Relations Board at the courthouse in Lafayette, Alabama? Estes, as well as employees Harold White and Robert Hasley, testified at this hearing. Following the close of this hearing, Estes returned to the area of the warehouse on the Respond- ent's property. The hour was then approximately 5 p.m. and most of the employees had completed their day's work and gone home. However, according to Estes' own testimony he was one of about eight employees that engaged in general conversation about the advantages and disadvantages of the Union. One of the employees in the group was Robert Lewis Yancey, generally known as Lewis Yancey, a line foreman.3 According to Estes' testimony, "Mr. Yancey said something about . . . I don't remember his exact statement . . . he said something about he didn't know whether he would join the union, or not. If he didn't join, there wasn't anything we could do about it. And I said `Well, if I go out with you, I'll drop a hot stick upon your head."' 4 According to Estes, Yancey replied, "Well I'll do the same thing to you" and "I can use my fists." Nothing further occurred and shortly thereafter the group dispersed. Yancey creditably testified that he felt Estes meant what he had said. Yancey did not report this incident to his superintendent, Robert Boyd, voluntarily, but when questioned by Boyd on November 20, 1958, Yancey related the incident to him. Robert Boyd testified that he has been employed by the Respondent for about 12 years and is presently employed as the line superintendent. On November 19, 1958, the morning following the incident related, Boyd detected a certain tension among the employees and a tendency to constantly gather into small groups of two or three to talk. The essence of Boyd's testimony was that he could detect that the employees were "concerned" or more than normally interested in something and he endeavored to ascertain what was "in the air." Boyd testified that he heard the name Lewis mentioned several times and because he had two line foremen referred to as Lewis-Lewis Yancey and Lewis Heath-he decided to talk to both of them to ascertain the nature of the disturbance which he had by this time learned from another employee had occurred the afternoon before. Boyd talked to Lewis Yancey and Lewis Heath on November 20, 1958, at which time Yancey told Boyd of the "hot stick" incident that had occurred between himself and Estes on Novem- ber 18, 1958. Yancey, whose testimony I credit, said, "Boyd you know how every- thing is. I figured I could take care of it myself, unless you come to me. I didn't want to come to you to fire Estes, but I've got to watch him." Boyd thereafter reported the incident to J. W. Drake, the manager of the Re- spondent, and W. C. Hines, an attorney for the Respondent. The following morn- ing, November 21, 1958, Estes was told to turn in his tools and pick up his check. While the conversation that occurred at the actual time of the discharge was some- thing less than direct, I find that Estes knew the reason given by the Respondent for his discharge, and did not deny having made the statement to Line Foreman Lewis Yancey as set forth herein. The General Counsel contends that the discharge reason given by the Respondent was a pretext and I now turn to a consideration of such further evidence adduced' at the hearing as might support the allegations of the complaint. Roy Shaver testified that he is employed by Respondent as a warehouse clerk. While Shaver is not a night watchman he had also agreed with Respondent to stay in one of their buildings at night where he is provided a bed. Boyd testified that the purpose of having someone sleep at the "job" site was to have someone available for Re- spondent's customers to be able to call in the event of electrical difficulty. On the night in question, which I find to be on or about November 20, 1958, Boyd had "Case No. 10-RC-4228, supra. 3 The Board found the "line foreman" to be supervisors within the meaning of Section 2(11) of the Act in Case No. 10-RC-4228. 4 A "hot stick" was exhibited during the hearing and is a wooden instrument approxi- mately 8 feet long, weighing approximately 8 to 10 pounds, which has two metal bands and a metal hood at one end. It is coated with a nonconductive wax and is used to ener- gize and deenergize transformers and electrical lines. NECO ELECTRICAL PRODUCTS CORPORATION 481 gone to the office around 10 p.m. in response to "a case of trouble" and Shaver was not there . Shaver testified that he had not advised Boyd that he would be out that evening and that he did go out to attend a union meeting and returned around 10 p.m . The following morning Boyd inquired of Shaver where he had been the night before and Shaver replied that he had attended the union meeting. Shaver further testified that Boyd asked who else had attended the meeting . Shaver re- plied that he could not answer that. This ended the conversation according to Shaver. In view of Shaver's admitted and known absence from the Respondent's building on the evening before this conversation occurred, the inquiry by Boyd of Shaver as to Shaver's whereabouts was entirely normal and logical and I find that this entire conversation, standing alone as it does in this record , did not carry "with it more than the implication of curiosity." N.L.R.B. v. Syracuse Color Press, Inc., 209 F. 2d 596, 600 (C.A. 2). Under all the circumstances , it did not reason- ably tend to restrain or interfere with the employees in the exercise of rights guar- anteed by the Act. Blue Flash Express, Inc., 109 NLRB 591. Concluding Findings The General Counsel endeavored to establish that the remark made by Estes was not an unusual or uncommon remark among the Respondent's employees and that Estes did not intend the remark in a serious or threatening manner. General Counsel then sought to show that because the remark was intended in a light vein and because Estes was the most active union adherent among Respondent's em- ployees, that the reason advanced by Respondent for the discharge of Estes was a pretext. Such a theory is entirely plausible. However it is undisputed that Yancey-the supervisor to whom the words were spoken-thought that Estes was serious and regarded the words spoken by Estes as a threat to him. The Trial Examiner does not regard Yancey's failure to forthwith report the incident to his "boss" as such unreasonable conduct as would discredit his testimony. It is not unusual for a first line supervisor to seek to solve his own problems with the men under him. However, once Boyd questioned Yancey and the Respondent's manager learned of Estes' threat to Yancey, the Respondent took prompt action by discharg- ing Estes. The entire evidence here, while perhaps raising a suspicion of discrimina- tory motivation, fails to constitute the preponderance necessary to establish that the Respondent was illegally motivated in terminating the employment of Charles Vernon Estes or in its continued failure to reinstate Estes. Strachen Shipping Com- pany, 87 NLRB 431 and Western Lace and Line Co., d/b/a Western Fishing Lines Company, 105 NLRB 749. Objectively viewed, any suspicion arises from the se- verity of the disciplinary action and not the motivation. Upon the above findings of fact and upon the entire record in the case I make the following: CONCLUSIONS OF LAW (1) The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. (2) The Union is a labor organization within the meaning of Section 2(5) of the Act. (3) The Respondent has not violated Section 8(a)(3) of the Act as alleged in the complaint. (4) The Respondent has not engaged in conduct violative of Section 8(a)(1) of the Act as alleged in the complaint. [Recommendations omitted from publication.] Neco Electrical Products Corporation and International Union of Electrical, Radio and Machine Workers, AFL-CIO. Case No. 15-CA-1093. August 13, 1959 DECISION AND ORDER On April 14, 1959, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that 124 NLRB No. 54. 525543-60-vol. 124-32