Central Power and Light Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Central Power and Light Company and Troy Lee Ma- loy. Case 23-CA-6747 November 24, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On September 8, 1978, Administrative Law Judge John F. Corbley issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in answer to the exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Cen- tral Power and Light Company, Corpus Christi, Tex- as, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: Substitute the following for paragraph 2(d): "(d) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with." The Respondent has excepted to certain credibility findings made bh the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibilitl unless the clear preponderance of all of the relevant evidence consinces us that the resolutions are incorrect. Standard Dry Wall Producis. Ini . 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefulls examined the record and find no basis for reversing his findings 2 The Administrative Law Judge inadvertently directed Respondent to notify the regional director within 20 days from the date of receipt of his recommended Order as to Respondent's anticipated compliance therewith. Board policy dictates, however, that such notification occur within 20 days of the recommended Order. Accordingly, we have modified our Order to reflect such policy. DECISION STATEMENT OF THE CASE JOHN F. CORBLEY, Administrative Law Judge: A hearing was held in this case on May I I and 12, 1978, at Corpus Christi, Texas, pursuant to a charge filed by the Charging Party (hereinafter Maloy) on September 23, 1977, which was served upon Respondent by registered mail on the same date, and a complaint and notice of hearing issued by the Regional Director for Region 23 of the National Labor Relations Board on December 2, 1977, which was also thereafter duly served upon Respondent. The complaint alleges that Respondent discharged Maloy on or about September 18, 1977, and has since refused to reinstate him because of his union or other concerted activities and that Respondent has thereby violated and is violating Section 8(aX)(1) and (3) of the Act. In its answer to the complaint, which answer was also duly filed, Respondent has denied the commission of any unfair labor practices. For reasons which appear hereinafter, I find and con- clude that Respondent has violated the Act essentially as alleged in the complaint.t At the hearing the General Counsel and Respondent were represented by counsel. All parties were given full opportunity to examine and cross-examine witnesses, to in- troduce evidence, and to file briefs. The parties waived the right to make oral argument at the conclusion of the hear- ing. The General Counsel and Respondent have filed briefs, which have been considered. Upon the entire record in this case, including the briefs, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Texas. At all times material herein, Respondent has maintained its principal office in Corpus Christi, Texas, with various facilities throughout the State of Texas, including Corpus Christi, Texas, where it is engaged in the production, transmission, distribution, and industrial, commercial, and residential sale of electric- ity in 44 counties in Southwest Texas. The Corpus Christi facilities are involved in this proceeding. During the 12 months preceding the issuance of the complaint, a representative period, Respondent received gross revenues totaling in excess of $1 million. During the same 12-month period, Respondent purchased goods and materials valued in excess of $50,000 from firms located outside the State of Texas, which goods and materials were shipped directly to Respondent at its various facilities with- in the State of Texas directly from points outside the State of Texas. In his brief the General Counsel urges that I make additional findings with respect to other matters not alleged in the complaint which he contends are unfair labor practices and were fully litigated at the hearing. I shall deny this request for reasons to be enumerated later in this Decision. 456 CENTRAL POWER AND LIGHT COMPANY Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE t.ABOR OR(;ANIZArION INVOLVED International Brotherhood of Electrical Workers, AFL- CIO and CLC. herein called the Union, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III1 THE ALLEGED UNFAIR L ABOR PRATICFES A. Respondent's Relevant Hierarchiy The persons named below at all times material herein occupied the positions set opposite their respective names and have been and are now agents of Respondent. acting on its behalf, and are supervisors within the meaning of Section 2(11) of the Act: S. E. Kelley. Jr. Leroy Salter Don O. Daniel Jack Johnson Gene Pless Bugger Bingham District Manager Distribution Superinten- dent District Engineer General Foreman Foreman Foreman 2 Maloy, the Charging Party, began work as a Class "C" lineman with Respondent on or about May 7. 1973. Prior to that time, he had worked for about 10 years as a lineman and later as a working foreman with Magic Valley Electric Coop in Mercedes, Texas. Maloy progressed to the position of Class A lineman in about 1-1/2 years. The usual time within which an employ- ee advances to the Class "A" lineman category with Re- spondent is about 6 to 7 years. Maloy's rapid rise was in part related to his appointment at the Class "C" level (by- passing the lower grades of lineman-trainee and apprentice lineman) based on his prior experience with Magic Valley. Thereafter-at least until 1976, when he became in- volved with the Union-Maloy was considered by his fel- low employees and by supervisors to be a very fine employ- ee 3 and a hard worker.4 In five employee performance reviews by Respondent from 1973 through 1976, he was rated 'good" or "outstanding" (the top two columns) on all 15 rating criteria. His 1975 and 1976 reviews were indeed outstanding on all criteria except written and oral commu- nications, where he was rated good. Special comments on all these forms from 1973 to 1976 indicate he was doing a 2 Respondent's answer generally admitted that these individuals occupied these positions, "are" agents and "are supervisors within the meaning of the Act." My findings add to the admission the conclusions "at all times mate- nal" and agents of Respondent "acting in its behalf." based on the allega- tions of the complaint which were not denied by the answer See Sec 102 20 of the Board's Rules and Regulations and Statements of Procedure. Series 8. as amended 3Per the credible testimony of then-fellow employees Rendon aind Schultz. 4 Per the credible testimony of former supersisor D)avid Barber, now no longer employed by Respondent. "very good job" and was a "good" or "excellent" employ- ee. His 1975 and 1976 reviews specially commented that Maloy did a "very good job of running the crew when the foreman was absent." All five reviews were signed by Fore- man Jack Murr. They were endorsed, variously, by District Manager S. E. Kelley. General Foreman Bingham, Con- struction Superintendent Salter, and District Engineer Daniel. B. The Union Campaign In March 1976. Maloy signed a union authorization card and became a member of the Union's organizing commit- tee. Thereafter Maloy wore and distributed union buttons or other devices bearing the Union's name, such as plastic shirt-pockei pen holders, key chains, and pens. He also authored, and was a cosigner of. two letters distributed to all of Respondent's employees in September or October 1976 and in FebruarV 1977 in which he strongly advocated the Union. The Respondent became aware of the union activities of Maloy about the middle of 1976. 5 Respondent actively opposed the Union's organizational campaign. It sent letters to all of its employees in July and October 1976 over the signature of its chief executive, R. W. Hardy, in which it stated that its position of opposi- tion to unionization was well known and urged the em- ployees to vote against the Union in an upcoming Board- conducted election. Handouts opposing the Union were also distributed, and at least six or seven meetings of em- ployees were held, for example at the Corpus Christi loca- tion. in which Respondent through high corporate officials such as S. E. Kelley (C'orpus Christi district manager). Hardy. and Aaron Autrey, Respondent's president, lec- tured the employees on union strikes, fines, and assess- ments. Another letter, dated January 13, 1977, was sent to all employees by the Respondent over the signatures of Hardy and Autrey, in which the Respondent stated that it did not want "to be forced to operate the union way" and that it and employees could work out their differences "without any interference from outsiders." This letter again urged the employees to vote against the Union. A Board-conducted election was held on February 8. 9, and 10, 1977. Maloy was the union observer at some six locations. The Union lost the election. C. The Falling Out Between Respondent and Maloy In October or November 1976, after Maloy had been involved for some time in the Union's organizational cam- paign, Maloy spoke with Kelley. In this conversation Kel- ley told Maloy that Maloy's former employer had contact- ed Respondent and said that Maloy was a troublemaker. Kelley added that Respondent knew this before it hired Maloy but, through Salter's insistence, hired him anyway.6 The next time Maloy confronted Kelley was on Febru- ary 16, just after the Board election. For an understanding Daniel so admitted. ' Malov credihbl so teslified and Kellei did not dens it 457 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of what Kelley said at that meeting, we must harken back in time to earlier events dealing with Respondent's employ- ment situation and its assumption of work which had pre- viously been contracted out. Prior to 1975, Respondent had subcontracted tree-trim- ming work. By 1975, residential construction in the area of Respon- dent's Corpus Christi district had taken a downturn, and there was less need for Respondent to maintain large crews of construction employees. Respondent, however, decided not to lay off any men but to attempt to ride out the reces- sion. To keep its men busy, it assumed the tree-tnmming work which had been performed by outside contractors and assigned it to its own crews. In 1976, the system was to assign this work to crews on a rotating basis. The work was objectionable to employees, if only because of the noise levels around the chipper (the machine used to chop up tree limbs)-levels which exceeded the relevant OSHA standards. Prior to February 1977, Maloy had not been assigned to one of the rotating tree-trimming crews. On February 16, 1977,7 Maloy went to see Kelley about two matters-the fact that Foreman Jack Murr continued to fill out evaluations in pencil, and management's change in a decision made by Maloy when Maloy was an acting foreman. which caused employee Selso Perez to lose vaca- tion time. Maloy had previously complained about Murr's action of filling out evaluation forms in pencil because, in a prior year, Murr had changed an entry on Maloy's form from "unknown" to a favorable rating after Maloy had seen it. While this change was an improvement in Maloy's own specific rating, that practice and its obvious potential for having penciled ratings changed later for the worse was what concerned Maloy. In any event, Maloy told Kelley that Maloy's indigna- tion over Murr's pencil rating practice, and the raw deal Maloy felt management had given Perez, had caused Ma- loy to decide to "fight for the Union as long as [he] lived." At this meeting Maloy also brought up the matter of the danger of taking linemen, who normally climbed 45-foot poles, and using them at another location on 120-foot poles. Kelley responded that the union business was all in the past and that instead of changing the Company to Maloy's way of thinking Maloy should start doing what the Com- pany was doing. Kelley further responded that when Ma- loy came to work for Respondent from Magic Valley the latter had advised Respondent that Maloy was nothing but a "damn troublemaker." In this same conversation, Kelley asked Maloy what Maloy would do if Kelley put Maloy on a tree-trimming crew. Maloy replied that if a top lineman were rut on tree trimming it would hurt the limeman's pride. On February 17, Kelley made a memorandum of his meeting with Maloy on the day before. On or about March 18, Maloy was called by Foreman 7 All dates appearing hereinafter occurred in 1977 unless otherwise noted. These findings are based on a composite of the testimony of Maloy and Kelley as to this meeting. The testimony of one does not essentially conflict with that of the other. Graves and told to see Salter. Maloy went to Salter's office, where the latter offered Maloy a transfer to Pharr, Texas, at the same rate of pay and in the same classification as Maloy already enjoyed. Maloy rejected this offer but asked to see his personnel file. On reviewing this file, Maloy learned that Murr had written a memorandum dated February 17, 1977, on the matter previously mentioned, the change by Murr of a prior evaluation on Maloy after Maloy had signed the eval- uation. In this memo Murr averred that Murr had advised Maloy of the change after the change had been made. Maloy testified at the hearing, and I find, that Murr had never told him about the change in the review form.9 On or about March 22, Maloy happened to meet Murr on the loading dock of their place of work. Maloy, advert- ing to Murr's memo of February 17, stated that the memo did not reflect the truth. At this, Murr called Maloy a liar. Maloy responded that Murr was a liar. °0 Thereafter, Murr and Johnson, who allegedly witnessed the foregoing incident, purportedly advised Salter that Ma- loy had called Murr a "goddamned liar," and Salter in turn so advised Kelley, according to Kelley. Kelley called in Maloy in the early afternoon of March 22 and questioned Maloy about what had occurred. Maloy denied calling Murr a "goddamned liar" but admitted call- ing Murr "a liar" when Murr had first called Maloy the same. After hearing Maloy's version, Kelley asked Maloy what Maloy would do if Respondent put Maloy back on Murr's crew. Maloy responded that this would be all right if the documentation of the altered review matter were re- moved from Maloy's files and if Murr would use a pen on future evaluation reviews. Kelley also discussed the possi- bility of moving Maloy to tree trimming. No action was taken at the time, however. About 4:30 that same afternoon. Maloy was again called into Kelley's office, where he was confronted by Kelley, Salter, Johnson, and Murr. Kelley told Maloy that Maloy was suspended for 5 days for insubordination and not to come back to the office. Maloy returned the next day, March 23, to obtain the suspension in writing. Kelley indeed wrote out a confirma- tion and gave it to Maloy. Maloy thereafter served the sus- pension. On April 1, a few days after Maloy returned from his suspension, permanent tree-trimming crews were estab- lished, and Maloy was assigned to one such crew. Assign- ments were made on the basis of seniority.'' Maloy became so upset upon hearing this news at the meeting where the tree-trimming assignments were made that he walked out, asked for a day's vacation, and went to the doctor, who gave him some pills. A day or so later, Maloy spoke to Graves and asked Graves for a few more days' vacation, which Graves re- fused, saying he had a man out sick already. Maloy then asked Graves why Maloy had been assigned to tree-trim- ming work, and Graves replied that since Maloy was caus- 9 Murr did not testify. 10 These findings are based on the credible and undisputed testimony of Maloy. Johnson. like Murr. did not testify. I Daniel and Maloy credibly so testified with respect to seniority selec- tion for this assignment 458 CENTRAL POWER AND LIGHT COMPANY ing so much trouble, Graves decided that is where Maloy needed to be.'2 A few days after being assigned to tree-tnmming work, Maloy developed ear trouble. As previously pointed out. tree trimminig involves the use of an automatic chipper which makes a great deal of noise. Maloy went to his own family doctor, who told him he had an infected ear and air pockets behind his ear drums. Maloy reported this problem to his then-immediate foreman, Charles "Bugger" Bing- ham. On or about April 24 Maloy filled out a Respondent medical report, after which an appointment was made for him with a Dr. E. Brown, an independent industrial medi- cal specialist. Brown suggested that Maloy use sonic ear plugs, which Maloy used, but unsuccessfully. In this state of events, Maloy spoke with Kelley and requested that Kelley transfer him until Maloy found out from the doctor whether noise was really causing the trou- ble. Kelley told Maloy that Kelley would either have to terminate Maloy or have him put on disability. Kelley ad- vised Maloy, however, that he could stay home until results were received from an examination by an ear specialist-a Dr. Zane-with whom an appointment was made. Maloy went to see Zane on or about May 19. Zane gave Maloy a note to take back to Respondent which stated: Mr. Maloy shows evidence of hearing loss in his ears secondary to noise exposure. He should work with ear protection or be transferred to another posi- tion. Maloy was then given NRA-approved ear muffs and put back on tree trimming. These muffs helped Maloy some, but he nonetheless experienced ringing in his ears from his work. Maloy took about a week and a half off from work during May 1977. He returned to tree-trimming work in June and contin- ued until early July. In July, at the suggestion of Dr. Zane, Maloy underwent an operation for correction of his ear problem. After the operation Maloy was off from work for about 2 weeks and returned on July 26. On or about August 3, Kelley spoke with Maloy at the service center from which Maloy worked and told Maloy that Kelley had learned that Maloy was interested in a transfer to Pearsall, Texas. Kelley advised Maloy that he would look into it for Maloy but that it would not do Ma- loy any good because they had "heard" about Maloy and his union activities at Pearsall. Kelley added that in view of "the [way the Board election] vote went, they didn't want people like you [Maloyl out there [at Pearsall]." With this, Maloy told Kelley to forget it. Kelley nevertheless got back with Maloy the next day and advised him that he had con- tacted B. C. Kendall (Respondent's vice president in charge of district operations) about the proposed transfer. Kelley reported that Kendall told him that Kendall did not want Maloy in any of Kendall's districts. 12 I find Graves to be a supervisor within the meaning of the Act and to have occupied that status at the times in question. for he s.as a foreman at such times, and other foremen are admittedly supersisors (e g.. Pless and Bingham) Maloy did not get the transfer.'3 Maloy continued to do tree-trimming work but likewise continued to have problems with his ears because of the noise. On or about September 15, Maloy returned to Dr. Zane's office. Dr. Zane advised Maloy that the July ear operation had been unsuccessful and that another one would be necessary. Zane gave Maloy a note to return to Respondent, which stated: Mr. Maloy is having increased symptoms of ringing in his ears. He should have his job changed to protect him from CPL [Respondent] from liability. Maloy turned in the note, which was eventually handed over to Daniel. the district engineer, On or about September 16, Daniel spoke with Maloy and told Maloy that the note looked like an ultimatum and that Maloy had reached the end of the line. Daniel stated that Respondent had no further use for Maloy in that dis- trict. On September 19, Maloy came in to get his final check. Maloy spoke at the time with Superintendent Salter, who told him that he was discharged. Maloy has not returned to work for Respondent, and tree trimming by Respondent's own crews has been discon- tinued. Concluding Findings The General Counsel has made out a substantial prima facie case that Maloy's discharge was motivated by his union activities. Thus, Maloy was a leader in the Union's unsuccessful campaign to become the employees' bargaining representa- tive. As previously recounted, he was a member of the Union's organizing committee, distributed union buttons or other devices, authored or cosigned widely distributed union campaign letters, and was a union observer at sev- eral locations for the Board-conducted election of Febru- ary 8, 9, and 10. At his first confrontation with manage- ment (Kelley) on February 16, after the Union lost the election, Maloy advised that he would continue to fight for the Union, citing two matters about which he had come to complain-Murr's practice of doing evaluations in pencil and Perez' problem with leave. Management had known of Maloy's union activities since at least the middle of 1976, as Daniel admitted. Management actively opposed the'Union in a campaign of letters and speeches previously described. I further conclude that management particularly op- posed the participation by Maloy in the Union's campaign. For, as I ha\ e found, in the confrontation between Kelley I The findings as to the transfer incident are based on the credible testi- mony of Maloy, as partially corroborated by Kelley. To the extent that Kelley's testimony is contrarv to these findings I do not credit it I found Kelley to be an uncertain and unconvincing witness - which Is in part dem- onstrated by the record, e g, his plain failure to answer a number of ques- tions put to him. While Kelle) claimed he told Maloy that union activities had nothing to do with the matter, Kelley admittedly said that the problem was that Malo,) was a troublemaker MaloN was generall) more certain in his testimon). Further. in this instance fv.aloy's testimony is supported b. notes Maloy kept of the event 459 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Maloy on February 16, Kelley, after being told of Maloy's continued allegiance to the Union, warned Maloy that the union business was in the past and that Maloy should start doing what the Company was doing. Kelley also reminded Maloy in this conversation that Maloy had come to Respondent with a reputation as "a damn trouble- maker" (from Magic Valley) and asked Maloy what he would do if Kelley put him on tree-trimming work. The effect of Kelley's resurrection of the "troublemaker" mat- ter in the context of this conversation could only be to make Maloy feel that he was now being so classified by Respondent as the result of his efforts on behalf of the Union.'4 This, coupled with the question as to what Maloy would do if Kelley put Maloy on tree trimming, was in- tended to and did make Maloy feel that Respondent might punish him for his union involvement. Tree trimming, as this record amply demonstrates, is onerous and degrading work for a top-rated lineman, assignment to which, as Ma- loy credibly testified without dispute, caused complaints from a number of employees.' 5 After this February confrontation, there followed a number of attempts by Respondent to persuade Maloy to take a transfer to another area (e.g., in March to Pharr, Texas), but Maloy declined for various reasons. When Maloy finally was assigned to tree-trimming activ- ities in early April-an assignment made on the basis of seniority, according to the testimony of both Daniel and Maloy-supervisor Graves nonetheless reiterated what Kelley had implied to Maloy in February-that the assign- ment was a punishment. Even if the real basis for the as- signment was seniority, Grave's remark itself was coercive and further evidences Respondent's animus against Maloy's union activities. In early August, when Maloy, on his own, developed an interest in a transfer to Pearsall, Texas, Kelley suggested to him that the transfer effort would fail because of Maloy's union activities. Finally, when faced with Dr. Zane's warning in Septem- ber that Maloy should be transferred away from tree trim- ming to protect Respondent from liability for damage caused to Maloy's hearing, Respondent did not make such a transfer but utilized the warning as a basis for discharg- ing Maloy. In so doing Respondent gave Maloy disparate treatment from that of at least one other employee who requested reassignment from tree trimming (Rendon) and several employees over a period of years whose physical disabilities had required them to take up less arduous du- ties, usually inside the plant (e.g., Barrientos, Roddy Per- ez,17 Alfred Licea, Charles Eriger, Joe Hayes, etc.). Maloy 14 "Troublemaker" is a familiar euphemism for union supporters. E.g.. The Huntington Hospital Inc., 218 NLRB 51, 57 (1975). The question about this assignment could only have been designed to coerce Maloy. The meeting had nothing to do with work assignments, and management obviously had the authority to make any lawful work assign- ment without first discussing the matter with the prospective assignee. 16 All of the foregoing amply establishes Respondent's animus against the Union generally and against the union activities of Maloy particularly. 17 Perez was given such a reassignment in early 1977 despite Daniel's claim that no such reassignments were made for people under Daniel after Daniel became district engineer in 1975. Perez was under Salter, who re- ports to Daniel. Daniel, in any event, admitted that for employees under other supervisors in the Corpus Christi district such compassionate reassign- himself had several times sought to be taken off tree-trim- ming work during the prior several months--one occasion being in May, when he sought a reassignment from Kelley until his ear situation was finally straightened out. Kelley told Maloy that Maloy's only job was tree trimming, which, of course, Kelley knew Maloy disliked and from which Maloy was suffering ear problems. It may be noted that Rendon (who, unlike Maloy, was reassigned from tree trimming on request) had previously experienced difficulty working with Supervisor Murr, as had Maloy. Maloy's alleged difficulties with supervisors such as Murr were, per Daniel, among the reasons for Maloy's discharge. Respondent's failure to transfer Maloy at least tempo- rarily away from tree timming to other duties is further questionable on the basis of Maloy's prior high value as an employee. Thus, Respondent gave Maloy outstanding rat- ings as recently as 1976 (I will take up his alleged 1977 rating later in this Decision), a:ndC Maloy had been utilized as acting foreman on several (occasions. Maloy had in all 15 years experience in utility work. Further, the tree-trimming work of Respondent's employees (which ended on January 1, 1978) had been expected to be phased out by Respon- dent, and such expectation was indeed mentioned by Re- spondent's officials to the employees at the meeting of April 1, when the establishment of the permanent tree- trimming crews was announced.'" Finally, Respondent made no effort in September to discuss with Dr. Zane what, if anything, could be done to cure Maloy's ear prob- lem. If Respondent had, it would have certainly learned from Zane what Zane told Maloy-that Maloy needed an- other ear operation because the prior one performed by Zane in July had been unsuccessful. In the fact of this strong prima facie showing, Respon- dent defends that, in view of the Zane warning note of September 15, it had no choice but to discharge Maloy. Respondent urges that this discharge was not based on Maloy's union activities. It points out (correctly) that other well-known union adherents (union election observers) have not been discharged. It says that it made numerous efforts to placate Maloy in his complaints over penciled performance reviews and the lost time of Selso Perez. It urges that if it had wanted to get rid of Maloy it had ample reason for doing so in March, when Maloy was insubordi- nate to Murr (the "liar" incident), and in April, when Ma- loy walked out of the meeting when permanent tree-trim- ming crews were announced. It says it made several offers to transfer Maloy, but Maloy refused. Finally, it points out that the union activity had long since died down by the time of Maloy's discharge, hence that such activity must be devalued as a factor bearing on that discharge. I reject Respondent's contentions. Taking first the matter of Respondent's claimed lack of options with respect to Maloy in the face of Dr. Zane's note of September 15, it had a number of options, the simplest of which was, of course, to transfer this valuable employee back to lineman's work and put another employee on tree menus were made by Respondent (e.g.. of Barrientos). 1I As Rendon credibly testified on cross-examination. 460 CENTRAL POWER AND LIGHT COMPANY trimming;t 9 or Respondent could, as it had done for other employees, have found Maloy a temporary assignment in- doors or even placed him on leave (as it had done before) until his ear problem had been finally resolved (bearing in mind that a second operation might have been successful). The question, thus, is not what Respondent could do but rather what it wanted to do. As to Respondent's contention that it sought to placate Maloy in his objections with respect to penciled evalua- tions and the Selso Perez leave matter, there is no indica- tion that Respondent gave Maloy satisfaction with respect to either of these complaints. While it is true that other known union adherents have not been discharged, this is irrelevant. It is well settled that an employer's failure unlawfully to discharge some em- ployees does not exculpate it from the charge that it has unlawfully discharged others.2 0 As to Respondent's contention that if it had really want- ed to get rid of Maloy it had numerous prior opportunities to do so for insubordination-the record does not support this argument. As to the "liar" incident in March, the record shows that Murr and Johnson, a purported witness to the event, alleg- edly advised management (eventually Kelley) that Maloy had called Murr a "goddamned liar" with respect to Murr's statement to Kelley that he had advised Maloy of his change of Maloy's rating on a prior evaluation form. When Kelley spoke to Maloy, Maloy told him that Murr had called Maloy a liar first, before Maloy responded that Murr was the liar. Maloy denied that he had ever called Murr a "goddamned liar." Maloy gave the same descrip- tion of the incident under oath at the hearing. Neither Murr nor Johnson testified. Accordingly, I conclude that no insubordination oc- curred here. The undisputed and credible testimony shows only that Maloy called Murr a liar, and that he did so only in defense against Murr's improper allegation that Maloy was a liar. With respect to the April I walkout involving Maloy, the full facts are that Maloy asked for leave when he walked out and was given leave. That is, he did not just-insubor- dinately-walk out, as Respondent contends. While Respondent is correct that, insofar as this record shows, the union activity among Respondent's employees had died out with the Union's defeat in the election in February, the dying out of the activity is not the question. The question is whether or not the reaction, if any, by Respondent to the activity had died down at the time of Maloy's discharge. The short answer to this question is that the reaction was still vibrant, certainly in the heart of Kel- ley-Respondent's principal actor in regard to the han- dling of Maloy in this case-who had told Maloy as recent- ly as August that Maloy would be denied a transfer because of Maloy's union activities. Yet other reasons cause me to reject Respondent's con- [9 While such other employee might have to be taken out of seniority. I note that Respondent had not followed seniority when the tree-trimming crews were first established. Hence, there would have been precedent for not following senionty by replacing Maloy with a more senior employee without ear trouble. 2 E.g., N.L.R.B. v. W.C Nabors Co., 196 F.2d 272, 276 (5th Cir. 1952). tentions and to agree with the General Counsel that Maloy was discharged discriminatorily. Thus, at the hearing Dan- iel attempted to introduce other reasons for Maloy's dis- charge (besides Respondent's claimed liability dilemma posed by Dr. Zane's note of September 15). These reasons were that Maloy could not get along with supervisors and that Maloy had the worst performance record of any em- ployee as far as time lost. As to the claim that Maloy could not get along with supervision, Kelley, despite initial evasion on cross-exami- nation on this question, ultimately stated that Murr was the only supervisor for whom Maloy worked with whom Maloy did not get along. But Murr, in five separate ratings over the years of Maloy's employment with Respondent (the last in the fall of 1976) rated Maloy "good" to "out- standing" in all categories in each rating. In the last rat- ing 21 rendered by Murr, Maloy was rated "outstanding" in all 15 categories except "communication," wherein he was classified as "good." To the extent that Maloy and Murr had their differ- ences, so did other employees have difficulties with Murr's supervision, as the testimony of a number of witnesses demonstrates without dispute.22 As to Daniel's claim that Respondent's records showed that Maloy had the worst attendance record, Respondent's counsel conceded at the hearing that the documents in question cannot be read to support or contradict Daniel's assertion. Kelley-in effect, contradicting Daniel on this point-testified that the documents are not even issued un- til the end of the year (whereas Maloy was discharged in September). This shifting of defenses at the hearing in order to build a case to support a discharge-particularly where, as here, the testimony of Respondent's witnesses is contradictory in regard to such newly raised matters-may be considered in determining the real motive for a discharge and is a cir- cumstance suggesting an attempt to obfuscate the true mo- tivation.23 I so consider it here. I conclude on the basis of all the foregoing that Respon- dent seized upon Dr. Zane's letter of September 15 as a pretext to rid itself of one of its most active union adher- ents and that Respondent terminated the employment of Maloy because of his union activities. I accordingly con- clude that by discharging Maloy for this reason and subse- quently refusing to reinstate him Respondent has violated, and is violating, Section 8(a)(3) and (I) of the Act.24 21 I reject the rating, allegedly signed by Bingham In 1977, which is in the range of "needs improvement" to "good.- Bingham did not testify and, according to the unrebutted testimony of Maloy, was angered that Maloy had not been put in charge of Bingham's crew (as Bingham had suggested) while Bingham was on vacation in July or August 1977. This. of course. suggests that Bingham had a high regard for Maloy at that time. I so find Further. as Kelley testified, ratings are given in October October 1977 was after Maloy's discharge and after the charge herein was filed. 22 Rendon. Schultz, and Barber Schultz and Barber, as former employees of Respondent-not shown to have been discharged or to maintain any other bias--were disinterested witnesses 21 See W'insion Rose and Mary Louise Rose, a partnership. d 'h a Ideal Donutr Shop, 148 NLRB 236, 246 ( 1964). and cases cited therein. :4 In reaching this conclusion, I discredit the testimony of Daniel and Kelley that the discharge had nothing to do with Maloy's union activities. See Shatruck Denn Mlning Corp. s N.L.R.B. 362 F.2d 466, 470 (9th Cir. (ontinued 461 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the virtual admission on the part of Kelley, previously referred to, and against the entire background of events heretofore described, I further conclude that Re- spondent refused to transfer Maloy to Pearsall because of Maloy's union activities and that Respondent thereby like- wise violated Section 8(a)(l) and (3) of the Act."2 This brings us to an additional request in the General Counsel's brief that I find that Maloy's transfer to tree trimming in April and his 5-day suspension in March were violative of Section 8(a)() and (3) of the Act, although neither matter was alleged in the complaint and no effort was made to amend the complaint in either respect at the hearing. The General Counsel argues that both matters were fully litigated at the hearing and that both occurred within the 6-month statute of limitations period of Section 10(b) of the Act.26 Respondent vigorously opposes this request, urging that had it been charged with these offenses it would have called witnesses with firsthand knowledge of both matters. I reject the General Counsel's request, for I do not be- lieve that it can fairly be concluded that either matter was fully litigated at the hearing. Thus, as to the 5-day suspension in March, neither Murr nor Johnson was called as a witness. 27 As to the inauguration of permanent tree-trimming crews on April I, we have only a few facts which show that such crews were established and that the basis for assign- ment thereto-according to the testimony of Daniel and Maloy himself-was seniority. While Graves later told Ma- loy that he had been placed on tree trimming because of the trouble he was causing, this statement without more. and without placing Respondent on notice to establish, if it desired to, a complete record on the permanent tree-trim- ming crew matter, is insufficient to provide a basis upon which to conclude that Maloy's transfer to that crew was an unfair labor practice. For Graves might simply have taken the opportunity-provided by Maloy's question about why he was put on tree trimming-to make a state- 1966). where the court, in speaking of the evaluation of an employer's mo- tive for discharge, stated: Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving. In such cases the self-serving declaration is not conclusive; the trier of fact may infer motivation from the total circumstances proved. Otherwise no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book. Nor is the trier of fact here the trial examiner-required to be any more naif than is a judge. If he finds that the stated motive for discharge is false, he certainly can infer that there is another motive. More than that he can infer that the mo- tive is one the employer desires to conceal-an unlawful motive at least where, as in this case, the surrounding facts tend to reinforce that inference. IFootnote omitted.] 25Cf. Chef Nathan Sez Eat Here, Inc., 181 NL.RB 159. enfd. 434 F.2d 126 (3d Cir. 1970). 26 Separate charges alleging these matters as unfair labor practices were previously filed and withdrawn by Maloy. 21 While I have made certain findings of fact adverse to Respondent with respect to this incident, I have done so on the basis of the credible testimony of Maloy under oath as undisputed by Murr and Johnson. That is, as to these facts (which otherwise relate to Respondent's defense that it had many opportunities to fire Maloy, had it wanted to). I have found such facts on the basis of the record presented to me. Such is my function. To go further and promote these facts into an unfair labor practice finding against Re- spondent without notice is another matter ment to harass Maloy for his union activities even if the assignment had not been made for that reason (Graves remark has been relied upon in my "animus" findings, su- pra.) Indeed, with Maloy's own testimony (coupled with that of Daniel) that Maloy's assignment to that crew was made on the basis of seniority, the direct evidence pre- sented in this record that the assignment was nondiscrinm- natory is in equipoise with the direct evidence to the con- trary-i.e., Graves' statement. While the circumstantial evidence dealing with Respondent's other conduct toward Maloy might shift the balance against Respondent (e.g., Kelley's reaction to Maloy's renewed avowal of union alle- giance at the meeting of February 16, where Kelley asked him what he would do if he was assigned to tree trimming), I am unwilling to make that assessment where Respondent was not put on notice of any need to defend against a separate unfair labor practice arising from this matter and given the opportunity to show by a preponderance of the evidence that the crewing for tree trimming was established in a nondiscriminatory manner, as the "seniority-basis" testimony of Daniel and Maloy indeed suggests. I note, in any event, that Respondent's crews were no longer performing tree trimming at the time of the hearing; hence my recommended reinstatement Order, when effec- tuated, will place Maloy back in his lineman's job or a job equivalent thereto. The recommended Order shall also di- rect Respondent to cease and desist from discrimination in regard to hire and tenure of employment or any term or condition of employment of any of Respondent's employ- ees. This latter aspect of the remedy will, inter alia, pre- clude any unlawful assignment of Maloy to more onerous and objectionable work should Respondent ever be of a mind to make such an assignment in the future. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section 1, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. V. THE REMEDY The recommended Order will contain the conventional provisions for cases involving unlawful discrimination in violation of Section 8(a)(l) and (3) of the Act. This Order will require Respondent to cease and desist from the unfair labor practices found and to post a notice to that effect, which will also state the affirmative action Respondent will be required to take to remedy these violations. Thus, Respondent will be required to offer Troy Maloy immediate and full reinstatement to his former position as a Class "A" lineman or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights or privileges. He will be make whole for any loss of earnings he may have suffered by reason of Respondent's discrimination against him by pay- 462 CENTRAL POWER AND LIGHT COMPANY ment of a sum of money equal to that which he would have earned from the date of his discharge to the date of his offer of reinstatement less nit interim earnings, if any, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon as required by Florida Steel Corporation, 231 NLRB 651 (1977) .2 It will be further recommended, in view of the unfair labor practices in which Respondent has engaged (see N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1958)), that Respondent be ordered to cease and desist from infringing in any other manner upon the rights guar- anteed employees by Section 7 of the Act. CONCLUSIONS OF LAW I. Respondent is an employer 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. By refusing to transfer Maloy to Pearsall, Texas, and by discharging and thereafter refusing to reinstate him, Re- spondent has violated, and is violating, Section 8(a)(3) and (I) of the Act. 4. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary or useful in complying with the terms of this Order. (c) Post at its plant on Lipan Street in Corpus Chnsti, Texas, copies of the attached notice marked "Appen- dix." 3o Copies of this notice, on forms provided by the Regional Director for Region 23, shall, after being duly signed by Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 23, in writ- ing, within 20 days from the date of receipt of this Order, what steps Respondent has taken to comply herewith. 2s See. generally, Isis Plumbing & Heating Co. 138 NLRB 716 (1962). In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 30 In the event that this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" ORDER 29 The Respondent, Central Power and Light Company, Corpus Christi, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, activities on behalf of, or sympathies toward International Brotherhood of Elec- trical Workers, AFL-CIO and CLC, or any other labor organization, by refusing to transfer, discharging, or other- wise discriminating in regard to hire or tenure of employ- ment or in any other manner in regard to any term or condition of employment of any of Respondent's employ- ees in order to discourage union membership, activities, or sympathies. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Troy Maloy immediate and full reinstatement to his Class "A" lineman's position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as the result of his discharge in the manner set forth in the remedy section herein. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the chance to give evidence, it has been decided that we have violated the National Labor Relations Act, and we have been ordered to post this notice. The National Labor Relations Act gives you, as em- ployees, certain rights, including the rights: To self-organization To form, help, or join unions To bargain collectively through a representative of your own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities. WE WILL NOT refuse to transfer you, discharge you, or take any reprisal against you because you join, sup- port, or engage in activities on behalf of International Brotherhood of Electrical Workers, AFL-CIO and CLC, or any other labor organization. 463 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner unlawfully inter- fere with any of your rights set forth above. WE WILL offer to reinstate Troy Lee Maloy to his former position as a Class "A" lineman or, if such position no longer exists, to a substantially equivalent position, because the Board has found that we dis- charged him because of his union activities. WE wILL make up all pay lost by Troy Lee Maloy as the result of his discharge, plus interest. CENTRAL POWER AND LIGHT COMPANY 464