Palestine Telephone Co.

PALESTINE TELEPHONE COMPANY 1325 On October 12, 1964, the Union amended its charge to allege for the first time a refusal to bargain on this insurance issue. 2. Conclusions The determination of the refusal to bargain allegation here depends, as I see it, on whether Jack Stafford ever made the remark attributed to him by Eaton to the effect that Stafford "could not consider your [the Union's] program for at least a year." Assuming that remark to have been made with finality, it would indicate that Respondent considered insurance to be an issue closed to the negotiations with the institution of Respondent's own program and hence a refusal to bargain with the Union upon a bargainable issue. As indicated, I do not believe that Stafford made the remark at the May 13 meeting in view of the fact that, even after the remark had allegedly been made, Eaton forwarded the Union's plan Ito Respondent for its consideration, thus indicat- ing that Eaton himself did not consider that Stafford's remark was the final word on the subject. The actual institution of Respondent's insurance program cannot be considered as a refusal to bargain on the insurance issue because such a policy could always be canceled. Indeed, if Respondent's witness is to be believed, even after the institution of Respondent's program had been announced, Attorney Davis purportedly agreed that insurance was always a bargainable issue. Eaton's own description of the negotiations on insurance proves quite conclusively that he failed to press the negotiations on that issue, to put the case as strongly in the Union's favor as is possible. So far as his own testimony shows, Eaton never again mentioned plan I after forwarding a copy thereof to Respondent for its perusal. In other words, even under its own testimony, it appears that the Union was willing to rest its proof of a refusal to bargain on one short inconclusive sentence rather than to put the issue of the refusal to bargain to a conclusive test as could so easily have been done. I am loath to find a refusal to bargain based, as here, upon a single, perhaps misunderstood, remark. Consequently, with the burden of proof still upon the General Counsel, I must hold that the General Counsel has failed to carry that burden and, therefore, will recommend the dismissal of the allegations regarding a violation of Section 8(a) (5) of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Drivers, Salesmen, Warehousemen, Milk Processors, Cannery Dairy Employees and Helpers Union Local 695, affiliated with International Brotherhood of Teamsters, -Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act 2. Stafford Trucking, Inc., is engaged in commerce within the meaning of Section 2(7) of the Act. 3. Respondent has not engaged in any unfair labor practices within the meaning ,of Section 8 (a) (1), (3 ), (4), or (5) of the Act. RECOMMENDED ORDER I recommend that the complaint in the instant matter be dismissed in its entirety Palestine Telephone Company and International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 702. Case No. 14-CA-3495. September :0,1965 DECISION AND ORDER On May 4, 1965, Trial Examiner Herman Tocker issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices within the meaning 154 NLRB No. 110. 1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in cer- tain other unfair labor practices and recommended that those allega- tions of the complaint be dismissed. Thereafter, the General Counsel, the Respondent, and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and adopts the findings, conclusions, and recom- mendations of the Trial Examiner only to the extent consistent herewith. 1. We find, in agreement with the Trial Examiner and based on the credited testimony, that Thomas Kent was hired as a temporary employee on August 17, 1964, and remained in that status through the eligibility period. The Trial Examiner concluded that Respond- ent violated Section 8(a) (1) and (3) of the Act on or about Sep- tember 14, 1964, by changing Kent's classification to that of a per- manent employee in order to make him eligible to cast an antiunion vote in the September 23 election. We do not adopt this conclusion. The record evidence does not establish that Respondent, in fact, changed Kent's status at any time prior to the Board-conducted election. Nor is there evidence that Respondent's attempt "to make it appear that he was a permanent employee during the period of eligibility," was communicated to the employees in any fashion viola- tive of Section 8(a) (1). Accordingly, we shall dismiss that portion of the complaint. 2. The complaint alleges that Respondent, on or about September 14, 1964, transferred and reassigned employee Richard Maddox from construction, installation, and maintenance work to office work for the purpose of depriving Maddox of his status as an eligible voter in the Board-conducted election and in order to defeat the employ- ees' efforts to designate the Union as their bargaining representative in violation of Section 8(a) (3) and (1) of the Act. PALESTINE TELEPHONE COMPANY 1327 The facts show that Maddox was hired on September 15, 1962.E He worked entirely on construction and maintenance or "outside" work for the first 2 months of his employment. Then, beginning on November 28, he worked interchangeably between the office and the outside for about a month. Between January 2 and Febru- ary 25, 1963, most of his time was spent in the office. For the remainder of 1963, Maddox worked almost exclusively on the outside. However, the pattern was reversed in January 1964 when Maddox was re- moved from outside work to perform a cost accounting project in the office pursuant to a decision of Respondent's board of directors? The accounting project, which involved a 10-year analysis of oper- ating costs for the several divisions of the Company, occupied all of Maddox' working time until its completion in May or June 1964. Maddox continued to work in the office 3 until late July when he informed General Manager Frank Kent of the status of his cost report and requested reassignment to outside work. Kent granted the request and assigned Maddox to full-time outside work on August 3, 1964, with the understanding that Maddox would work in the office long enough each month to keep the cost report current. Maddox performed construction and maintenance duties from August 4 to 21, when two outside employees were on vacation. Then, while one was still on vacation, Maddox returned to the office and worked the entire last week of August and the following Monday, August 31. Thereafter, on September 2, when Maddox resumed his outside work duties, he and two other outside employees signed union authorization cards at the request of the Union which filed a petition with the Board on September 3, 1964, seeking representation of all construction, installation, and maintenance employees, but excluding 1 Maddox' employment application shows that he received a college degree in business administration in 1948. The record indicates that Respondent intended to "train him for Accounting" as a possible replacement of another office employee It further appears that general training for a management position was also considered. 2 The pertinent portion of the minutes of the board of director 's meeting of Decem- ber 10, 1963 , which was received in evidence , reads as follows: After a full discussion , it was agreed that Richard Maddox would fill the position of Cost Accountant with the understanding that the job is an experiment in such accounting and might be terminated at anytime the Board so desires . His wages are to remain the same, and should he be needed to help with work in the outside plant, he will do so under instructions from the Manager. He will start his work as Cost Accountant on January 1, 1964. As found by the Trial Examiner in response to Maddox' inquiry, he was assured that if the cost accountant assignment did not become permanent , he would not lose his job, but would be retained as an outside employee. s The evidence shows that upon completion of the cost accounting project all of Maddox' remaining office duties , consisting of keeping the cost figures current, filing trouble tickets and work orders , and inventory control, required no more than 7 hours per week 1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office clerical employees. Pursuant thereto, the parties met at a joint conference in the Board's Regional Office on Friday, September 11, and entered into a consent-election agreement. At the meeting, the parties agreed to determine eligibility as of the August 31 payroll date. The Respondent took the position that Maddox was an office clerical employee during the eligibility period and was, therefore, ineligible to vote in the election scheduled for September 23.4 On September 14, the first work day following the preelection conference, Kent instructed Maddox to go back to work in the office `"starting tomorrow." On September 17, according to the credited testimony of Maddox, Respondent's Director Magill told Maddox that the Company "was going to fight the attempt of the union to organize the company ... that there would be two yes votes and two no votes and that [Maddox'] vote would be pivotal, and that the company was going to take the position that [he] was primarily an office employee who worked outside only occasionally." Maddox' uncontradicted testimony shows that on September 18 Kent informed him that "we had a Board meeting last night, and from now on you are an office employee. . . ." From that time to the hearing herein, Maddox has continued as a full-time office employee. The Trial Examiner found that, on the consent-election eligibility date, Maddox was an office clerical employee. Thus, although Respondent knew how the four eligible employees would divide in the election, the Trial Examiner viewed its action in specifying that Maddox perform only office work after September 14 as not amount- ing to a transfer or assignment from outside work. He also found that any reassignment to outside work in September, having occurred after the eligibility date, would have no impact upon his eligibility on August 31. He therefore concluded that the General Counsel did not establish the violation by a preponderance of the evidence. In so finding, the Trial Examiner apparently relied upon the indication of Respondent's original intention to make Maddox a full-time office employee, followed by the assignment of Maddox to the special accounting project authorized by the board of directors, and, on his belief that Maddox' assignment in August was of a temporary nature to substitute for vacationing outside employees. Contrary to the Trial Examiner, we find that the evidence of Maddox' employment history demonstrates that he was treated as a combination inside and outside employee before the Respondent had reason to suspect the significance of his vote in an election , and that after his voting eligibility became an issue, Respondent reassigned him to office work on a permanent basis for the purpose of destroying his * Maddox cast a challenged ballot in the election. On December 14, 1964, the Regional Director issued an order deferring ruling on the challenges pending disposition of the Instant charges. PALESTINE TELEPHONE COMPANY 1329 eligibility. Thus, the Respondent's own employment records disclose that commencing with the period of his hire to the preelection confer- ence on September 11, 1964, Maddox worked approximately 60 percent of the time in construction, installation, and maintenance work, and therefore possessed sufficient community of interest with the employees in that unit.5 And, the same employment records show that during the 12 months immediately preceding the election on Septem- ber 23, 1964, Maddox spent approximately 596 hours out of a total for the year of 2,080 hours performing the identical work as Respond- ent's full-time construction and maintenance employees. Under estab- lished Board law," employees who in the course of their employment devote such a substantial amount of time performing unit work are recognized as having a community of interest with full-time employees. Moreover, we do not agree that Maddox' assignment to outside work on August 3, albeit at his own request, merely constituted a temporary substitution for vacationing unit employees. Rather, it is clear from Kent's instructions to Maddox that the change was from a special project assignment to a dual function status for an indefinite duration with Maddox devoting some portion of his time to the accounting project.. Furthermore, the minutes of the board of director's meeting show that the cost accounting project itself was conceived as a tempo- rary or experimental undertaking and that Respondent contemplated reassignment of Maddox to outside work upon termination of the project or before if his services were needed. And, it is abundantly clear that since the major portion of the accounting work had been completed, the transfer of Maddox to outside work was entirely con- sistent with the Respondent's original plan. Accordingly, we conclude that, at all relevant tunes Maddox functioned as a dual status employee. It is significant that only after the Respondent, at the preelection conference, had determined the significance of Maddox' vote which it suspected would be cast for the Union, did Respondent take the position that he was an office employee. Its reason for doing so was made clear to Maddox on September 17, by Magill who told Maddox that the Respondent "was going to fight the attempt of the union to organize the company" and "that there would be two yes votes and two no votes and that [Maddox'] vote would be pivotal." On the fol- lowing day, Kent, acting for the board of directors, presented Maddox with a fait accompli when he announced that "we had a Board meet- ing last night, and from now on you are an office employee."' From the foregoing, including Respondent's knowledge of Maddox' union sympathies and the timing of its action for the reasons stated by Magill, we find that the Respondent discriminatorily transferred 5 Berea Publishing Company, 140 NLRB 516, 519. 9 WGOK, Inc, '152 NLRB 959. 206-446-66-vol. 154-85 1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Maddox from a dual function position to a permanent clerical status for the purpose of eliminating his vote in the pending election thereby interfering with his and other employees' statutory rights, and that by so doing the Respondent violated Section 8(a) (1) and (3) of the Act.7 We further find that Director Magill's statement to Maddox, set forth above, is independently coercive 8 and constitutes a violation of Section 8(a) (1).9 THE REMEDY As we have found that the Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. Having found, contrary to the Trial Examiner, that the Respondent discriminatorily transferred Maddox from a dual function position to a permanent clerical status, we shall, in accordance with established Board policy,10 require the Respondent to restore him to his former position, without prejudice to his seniority or other rights and privi- leges. We shall also order Respondent to make Maddox whole for the loss of pay, if any, suffered by him as a result of the discrimination against him, by payment to him of a sum of money equal to the amount he normally would have earned from the date of discrimination to the date of an offer of restoration to his former dual function posi- tion." "Only thus can there be a restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination." 12 SUBSTITUTE CONCLUSIONS OF LAW 3. By changing the status of Richard Maddox from a dual function employee to a permanent office clerical employee and thereby depriving him of assignments to outside work in order to eliminate his vote and defeat the Union in the election conducted herein, the Respondent sought to deprive the employees of a valid expression of their desires to be represented by the Union for the purposes of collective bargain- ing and Respondent did thereby discriminate and is discriminating in 7 See Weyerhaeuser Company, 134 NLRB 1371 , enforcement denied on other grounds 311 F. 2d 19 (C.A. 7). s Cf. Orkin Exterminating Company of Florida, Inc, 152 NLRB 83. e Although this conduct was not separately alleged as a violation , the facts were fully litigated and we view the complaint as sufficient to support this finding. Stokely-Van Camp, Inc., at al, d/b/a Stokely-Bordo (International Chemical Workers Union, etc.), 130 NLRB 869, 872-873. 10 Cf. Southeastern Pipe Line Company, 103 NLRB 341, 342-344. A. P. W. Products Co., Inc., 137 NLRB 25, 28-31. Backpay, if any, shall be com- puted on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and shall include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co ., 138 NLRB 716. 12 Phelps Dodge Corp . v N.L.R.B., 313 U S. 177, 194. PALESTINE TELEPHONE COMPANY 1331 regard to hire or tenure or terms and conditions of employment of its employees to discourage membership in the Union, and did thereby engage in and is engaging in an unfair labor practice affecting com- merce within the meaning of Section 8(a) (3) of the Act. 4. By the same conduct, and by its coercive statement to employee Richard Maddox, Respondent did interfere with, restrain, and coerce, and is interfering with, restraining, and coercing, him and its other employees in the exercise of their rights guaranteed in Section 7 of the Act, and thereby did engage in and is engaging in an unfair labor practice affecting commerce 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 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Palestine Telephone Company, Palestine, Illinois, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from : (a) Making coercive statements to employees concerning their union affiliations, sympathies, or activities. (b) Discouraging membership in International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 702, or in any other labor organization of its employees, by transferring an employee out of an appropriate bargaining unit or by otherwise discriminating in regard to hire, tenure, or any term or condition of employment. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organiza- tion, to form labor organizations, to bargain collectively through representatives of their own choosing, and to engage in any other con- certed activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Richard Maddox restoration to his dual function status and provide him the opportunity to perform the same construction, installation , and maintenance work he would have been assigned to but for the discrimination against him, without prejudice to his se- nority and other rights and privileges, and make him whole for the loss of pay, if any, he may have suffered as a result of the discrimina- tion against him. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and 1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all other records necessary to analyze the amounts of backpay which may become due and the rights of employment under the terns of this Order. (c) Post at its plant at Palestine, Illinois, copies of the attached notice marked "Appendix." 13 Copies of said notice, to be furnished by the Regional Director for Region 14, shall, after being duly signed by I he Company's representative, be posted by the Company imme- diately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for Region 14, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent has engaged in any other unfair labor practices. "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 "a Decision and Order" the words "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 offer to Richard Maddox restoration to his dual func- tion status and provide him the opportunity to perform the same construction, installation, and maintenance work he would have been assigned to but for the discrimination against him, without prejudice to his seniority and other rights and privileges, and make him whole for the loss of pay, if any, he may have suffered as a result of the discrimination against him. WE WILL NOT make coercive statements to our employees con- cerning their union affiliations, sympathies, or activities. WE WILL NOT discourage membership in International Brother- hood of Electrical `Yorkers, AFL-CIO, Local Union No. 702, or in any other labor organization of our employees, by transferring an employee out of an appropriate bargaining unit, or by other- wise discriminating in regard to hire, tenure, or any term or con- dition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to PALESTINE TELEPHONE COMPANY 1333 self-organization, to form labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection or to refrain from any and all such activities. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. PALESTINE TELEPIONE COMPANY, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 1040 Boatmen's Bank Building, 314 North Broadway, St. Louis, Missouri, Telephone No. 622-4156, if they have any questions con- cerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, with all parties present, was heard before Trial Examiner Herman Tocker in Robinson, Illinois, on February 24, 1965, on the General Coun- sel's complaint and the answer submitted on behalf of Palestine Telephone Company, the Respondent. The issues litigated were whether Respondent had interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act and had discriminated in regard to their hire or tenure or terms or conditions of employment by transferring and reassignment certain employees, thereby engaging in unfair labor practices in violation of Section 8(a) (1) and (3) of the Labor Management Relations Act of 1947, as amended. Briefs were sub- mitted on behalf of the General Counsel, the Charging Party, and the Respondent. Upon the entire record, and from my obseivations of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Palestine Telephone Company is now, and has been at all times material herein, a corporation organized and existing under the laws of the State of Illinois. It is engaged in the business of providing and performing telephone services and mainte- nance. Its principal office and place of business is at 112 West Grand Prairie Street, Palestine, Illinois. There was no issue as to whether, and so I find, that the Respond- ent is engaged in commerce within the meaning of the Act and that the National Labor Relations Board has jurisdiction over it in this proceeding. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 702, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ORGANIZATIONAL ACTIVITIES At some time late in August 1964, efforts were begun to organize Respondent's employees. One Donald L. Mahoney, an International representative of the Inter- national Brotherhood of Electrical Workers, AFL-CIO, met on September 2, 1964, 1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with three employees in Palestine, Illinois. This meeting had been arranged by the business manager of Local 702, who had telephoned Mahoney on the day before. The three employees present signed cards requesting a National Labor Relations Board election and authorizing the International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 702, to represent them in collective bargaining with Respondent. On September 11, 1964, there was a joint meeting of company officials, Mahoney, and Board personnel at the Regional Office of the Board in St. Louis. The company officials present were its president, Leath Postlewaite, and its general manager, Frank J. Kent. This meeting resulted in the signing of an agreement for a consent election to be held on September 23, 1964, with the period ending August 31, 1964, designated as the eligibility period. The election was held with six employees voting. Two voted for the Union and two voted against it. Two ballots were challenged, those of Richard Maddox and Thomas O. Kent Maddox had been one of the three employees who had met with the union representative on September 2, 1964, and signed the union cards. Thomas O. Kent is a son of Kent, the general manager. These are the two employees around whom the charges of unfair labor practices revolve. Because the original charge was filed November 2, 1964, and the complaint issued December 11, 1964, the Regional Director of Region 14 ordered, on Decem- ber 14, 1964, that a ruling on the challenged ballots be deferred depending disposi- tion of the charges in this case. IV. THE ALLEGED UNFAIR LABOR PRACTICES It is alleged in the complaint that the Respondent transferred and reassigned Richard B. Maddox from construction , installation, and maintenance work to office work and that it changed Thomas O. Kent's employment status in the construction, installation, and maintenance unit from that of a temporary employee to that of a permanent employee. (The construction, installation, and maintenance unit is referred to interchangeably as the "outside" unit or the "field" unit.) These changes, it is alleged, were made on September 14, 1964, for the dual purpose of depriving Maddox of his status as an eligible voter in the unit and constituting Kent as an eligible voter there. The alleged intended result of these changes was to remove from the unit the Maddox prounion vote and add to the unit the Kent antiunion vote. It is contended that these actions by the Respondent constituted an interference with, a restraint of, and a coercion of the employees in the exercise of their rights under Section 7 of the Act, thereby violating Section 8 (a) (1) and (3) within the principle of Weyerhaeuser Company, 134 NLRB 1371, as clarified by the Court of Appeals, Seventh Circuit in its opinion reversing the Board, 311 F. 2d 19. V. FACTS NOT IN DISPUTE On May 28, 1962, Richard B. Maddox applied for employment with the Respond- ent. In his application (Respondent's Exhibit No. 9) he noted that he had completed 8 years of grammar school, 4 years of high school, and 4 years at DePauw University, where he had studied business administration. He was hired by Respond- ent's then manager, not Frank Kent, on September 15, 1962. Although the hiring remarks included the words, "Intend to train him for Account- ing to replace Velda Knotts when she retires," he was given no office work until November 28, 1962, when he worked there 1 day. From September 17 until and including 6 hours on December 7, 1962, with the exception of the 8 hours on Novem- ber 28 and 2 hours on December 7, all his working time was on what has been characterized in this proceeding as "outside" work. The outside work is the unit sought to be organized by the Union and with which we are here concerned. Commencing December 10, 1962, and until January 17, 1963, Maddox worked interchangeably inside and outside. His hours of employment in these capacities aggregated 85 hours on the inside and 131 hours on the outside. Beginning January 18, 1962, and until and including February 25, 1962, Maddox did no outside work but worked a total of 1861/2 hours on the inside. With the exception of only 6 days, March 6, April 3, and December 4, 5, 6, and 9, on which he worked inside a full 8 hours each day, all his work to and including the end of 1963 was on the outside. This outside work aggregated 1,639 hours. In 1964 a reverse pattern commences. Although he worked outside a full day of 8 hours on January 1 (holiday pay?) and 3 hours on January 2, all his work begin- ning with 5 hours on January 2 until all of August 3, 1964, was on the inside. Thus, although he is credited with working a total of 11 hours on the outside, he worked a total of 1,1151/2 hours on the inside until and including August 3, 1964. (General Counsel's Exhibits Nos. 7a and 7b). PALESTINE TELEPHONE COMPANY 1335 August was vacation time, one outside employee being on vacation from August 1 to 15 and another outside employee being on vacation from August 15 through 30. Maddox again started working on the outside on August 4. He continued steadily there until and including August 21, working full time, a total of 112 hours Then, in the last full week in August and on the last day in August, he worked 6 full days, a total of 48 hours. (It may be recalled that it was in August, probably late in August, that the Union's organizing campaign must have had its birth because the Union's International representative was requested on September 1 to conduct the organizational meeting held September 2.) At Maddox's request, he was assigned to the outside and worked the balance of the first week in September, the entire second week and Monday of the third week, a total of 80 hours on the outside. Thereafter, he was brought back inside and seems to have been working there ever since. (It should be recalled also that it was on September 18 that the agreement for the consent election was signed. In that agreement the payroll period ending August 31, 1964, was fixed as the period for eligibility to vote in the election.) Thomas O. Kent, the general manager's son applied for employment on August 10, 1964, (Respondent's Exhibit No. 10). His application for employment gave no record of previous employers or references but did disclose that he had completed 8 years of grammar school and 4 years of high school. His father, General Manager Frank Kent, has testified that he was hired on August 17, 1964. (The date of hiring shown on the application is "9-17-64" but Frank Kent says this is an error and it should have been "8-17-64.") Young Kent commenced working on the outside and has worked there ever since his hiring. He was given a paid holiday, Labor Day, September 7, 1964, does the same work on the outside as the other outside men, was hired at $1.50 an hour as distinguished from $1.25 an hour paid to temporary employees, has received one pay increase, is a participant in the Company's hospital insurance plan and is earning time which will entitle him to a week's vacation. VI. THE PROBLEMS PRESENTED AND MY RESOLUTION THEREOF It is quite clear from the record that if the Respondent transferred or reassigned Maddox to inside work from outside work to take him out of the bargaining unit, the Union was deprived of one vote. It is clear also that if the Respondent reclassi- fied or changed young Kent's status from temporary to permanent as of the eligibility date, the Union became handicapped with an additional antiunion vote. It is cleat, as well, that for the Union to be ruled as the certified bargaining agent it will have to be established not that one of these events occurred but that both occurred. If it is found that Maddox was not transferred improperly but that young Kent was reclassified improperly, the vote will remain a 2 to 2 tie. If it be found that Maddox was transferred improperly and young Kent not reclassified improperly, the vote will be a 3 to 3 tie. If it be found that Maddox was not transferred improperly but that Kent was properly in the unit, the vote will be 3 to 2 against the Union. Only if it be found that Maddox was transferred improperly and that young Kent was a temporary employee, not in the unit, will the vote be 3 to 2 for the Union. The facts in part V of this Decision which concern employment records following the period of eligibility ending August 31, 1964, appear in the record but, in my opinion, they do not have any bearing on or importance with respect to the issues involved in this case because of their time sequence and also because they were within the absolute control of the Respondent, in the nature of post Intern motam. This proceeding must be decided on the facts as they existed on and prior to August 31, 1964, and what actions, if any, the Respondent took, whether before or after August 31, 1964, to defeat the Union in the election. Following the organizational meeting, with the knowledge that the Union might become certified, Respondent's president, Leath Postlewaite, and its general manager, Frank J. Kent, had a discussion at the Board's Regional Office with the Union's International representative. Postlewaite asked him what the Company "would have to pay" if the Union won. He was told "that the Union scale in that area for the type of work that the men involved did was around three dollars to three ten an hour." His rejoinder to this suggested either an inability or unwillingness to pay that much.' The Company made known its opposition to the Union and its belief that it would be able to defeat the Union by keeping Maddox out of the unit. Although there was some effort to put this fact in issue, the member of its board of directors who I Transcript references and exhibit references are intended mainly to be illustrative and the fact that any such reference is made anywhere in this Decision should not be regarded as making it all inclusive. All findings are made on the whole record. 1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had made the statement evaded giving a precise answer denying it. He left me clearly with the impression that he actually had made the statement but resorted to evasion because he wanted neither to admit it nor to lie about it. The Respondent knew what the vote would be a 2 to 2 tie without Maddox. It was informed of Maddox's support of the Union. It knew for a certainty what would have been a reasonable assumption, that young Thomas Kent, its general manager's son, would vote against the Union. Thus the position it took respect to both Maddox and Thomas Kent is quite understandable. Before the Company became educated by reason of the conversations had at the Board's Regional Office it had prepared its concept of the employees who constituted the unit involved. This was General Counsel's Exhibit No. 4, on which were set forth the names of Philip Burgund, Donald Gutshall, Kenneth Hughes, and Norris Maddox as the "List of employees on payroll period ending August 31, 1964." Maddox Maddox is a college graduate who had majored in business administration. That was one of the factors considered at the time of his hiring. He was hired, according to the written record (Respondent's Exhibit No. 9), because he was to be trained to replace an office employee. There is much credible and probative testimony that a primary consideration when he was hired was an intention that he learn all the facets of the telephone business and ultimately become general manager of the Company, without outside interests and reside in Palestine, the village or place where Respondent's business was conducted. On December 10, 1963, by action of the board of directors, Maddox was given the titled position, "Cost Accountant" (General Counsel's Exhibit No 6). While this action of the board of directors was qualified in that it "might be terminated at any time, the Board so desires," the board of directors never rescinded it. It appears that his position as cost accountant is intended to be permanent. An examination of the work assignments, both inside and outside, from the time of his hiring supports, rather than detracts from, a finding that the Company's original intention was that he learn the entire telephone business both on the inside and on the outside. Thus, until and including August 3, 1964, before the commencement of known union activity, Maddox worked interchangeably on the outside and on the inside. Many of his concentrated assignments during that period were either con- sistently on the outside or consistently on the inside. While between September 17 and November 27, 1962, his work was entirely on the outside, this is not inconsistent with a breaking-in period during which he was to learn the outside work of the telephone business. Then, beginning November 28, 1962, and until December 31 of that year there was frequent and constant interchange of duties both on the inside and on the outside. From January 2 to February 25, 1963, Maddox worked both inside and outside but most of his work was inside. Beginning February 26, 1963, and until April 3, most of his work was outside with only 2 days inside. Then, from April 4, 1963, until the end of that year, practically all was outside, with only 4 days inside. On January 2, 1964, following the action of the board of directors on Decem- ber 10, 1963 (General Counsel's Exhibit No. 6), as in the minute provided, Maddox was definitely removed from the outside. He worked inside steadily until and including August 3. This assignment as cost accountant met with Maddox's full agreement. In response to an inquiry by him, he was assured that if the assignment did not become permanent he would not lose his job but would be retained as an outside employee. It was Maddox (not the Company) who asked that he be assigned outside work beginning August 4, 1964. He admits that this outside assignment was not to take him permanently out of the office. (Respondent's counsel suggests that this was some sort of devious scheme on the part of Maddox to cement himself as an outside employee in order to promote the unionization of the unit. This is only suspicion and there is no evidence in the record to support it.) In consequence of this arrangement Maddox worked three weeks on the outside in August. During this time two outside employees were on vacation. Then, while one still was on vacation (General Counsel's Exhibit No. 12), he came back into the office from the outside and worked the entire last week and the last day of August, August 31, which was Monday of the week following. This was the date fixed for determining the eligibility period for voters in the election. While Maddox worked an aggregate of 80 hours outside after August 31 (beginning September 1), all his work since that time has been inside. However, as I have noted above, it is immaterial whether Maddox worked on the inside or the outside following the termination of the voting eligibility period. PALESTINE TELEPHONE COMPANY 1337 An effort was made to show that Maddox's work inside following the expiration of the eligibility period was just boon-doggling and that General Manager Frank Kent was unconcerned. However true this may be, this unconcern is not different from what it was in May, June, and July, 1964, before the commencement of the union activities. This is admitted by Maddox. Having given careful consideration to all the evidence, it is my conclusion that the General Counsel has not carried his burden of proof to establish that Maddox was an outside employee. On the contrary, there is strong support for the Respondent's position that he was an inside employee. To the extent, therefore, that it is alleged in the complaint that the Respondent transferred and reassigned Richard Maddox from construction, installation, and maintenance work for the purpose of depriving him of his status as an eligible voter in the Board-conducted election in the petition in Case No. 14-RC-4930, it should be dismissed. Thomas O. Kent Because it has a bearing on Thomas Kent's position in the bargaining unit I refer first to certain cross-examination of the Union's International representative, by Respondent's attorney. The record shows that on September 3, 1964, the Interna- tional representative, in his petition that the Union be certified as the bargaining agent for the unit (General Counsel's Exhibit No. 2), showed the number of employ- ees as six While this number, six, necessarily would have included Maddox, it would have included Thomas Kent as well. If the designation of this number had any binding or decisive effect it could be regarded as an admission by the Union that Thomas Kent was a permanent employee in the unit. I am disregarding this because the petition was filed on the day following the International representative's first meeting with the employees, when he had not had an adequate opportunity fully to investigate the facts. He was acting only on casual information received the day before in his meeting with the employees. I am accepting as credible the following testimony by the International represent- ative of what transpired at the preelection meeting at the Board's offices in which the Board's employee, Curren participated: Then Mr. Curren said to Mr. Kent that you had given me the name of Thomas Kent and you had told me on the telephone on the conversation that we had that he was a temporary employee. Mr. Curren asked him, "Is he still a tem- porary employee?", and Mr Kent said that he was, and Mr. Curren asked him if he planned to make him a permanent employee, and Mr. Kent answered emphati- cally "No", that he was only hired temporarily to spray brush and to cut brush for three or four weeks He was asked if he was going to terminate him at that time, and Mr Kent said that he was. Mr. Current said to Mr. Kent, "Well, under these circumstances, the man would be ineligible because he is not going to be here, he doesn't have any interest in the unit involved", and Mr. Kent agreed with Mr. Curren that he was, that Mr. Thomas Kent was ineligible. Then Mr. Curren asked me, and I said, "If these are the facts of the case, that the man is only temporary, he was going to be letting (sic, let go) and he was only hired for a short duration, that it was the opinion of the union that he had no interest and he shouldn't be able to vote " So then we were in agreement, all parties agreed that Thomas Kent was ineligible to vote because of his temporary status Although General Manager Frank Kent, at various places, prior to the giving of the foregoing testimony, testified to an effect which might be interpreted as contro- verting this testimony he was not called to rebut it after the testimony was given. As a matter of fact, in that prior testimony, the elder Kent was distinctively evasive about whether he had used the word "probation" as opposed to the word "temporary" for young Kent's status. He was forced finally to admit that he "couldn't guarantee" that he had used the word "probation." The testimony quoted above is the International representative's version of a conversation between the Board's employee and the elder Kent. But he testified addi- tionally that there was a specific agreement between him and the elder Kent that young Kent was ineligible because he was temporary. Additional evidence to the effect that young Kent's status was temporary was that he had hopes of obtaining a $14,000 a year job, and that he was hired to do brush cleaning in August, brush cleaning being temporary work. The adversaries both refer to the fact that available corroborative testimony was not produced (a) in that Respondent did not call President Postlewaite to support the elder Kent's position and to rebut the International representative's version of 1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what transpired at the Board conference and (b) in that the General Counsel and the Union failed to call Curren, the Board's employee, to support the International representative's version of what had there transpired. I agree that it is significant that Postlewaite, who was present in the hearing room, was not called to support Kent and rebut the International representative. In fact, Respondent's counsel, just before a recess, stated that Postlewarte was to be a witness. I do not regard as significant the fact that Curren, the Board's employee, who was also in the hearing room, was not called to support the International representatives version. Two reasons for my opinion in this respect are (1) that, inasmuch as Postlewaite was not called, there was no need to call Curren, and (2) a Board employee, unless there is a real urgent reason therefor, should not be called as a witness in a case and thus put the Board in the position of supporting or opposing a contention which is an issue to be decided by the Board. Postlewarte, not having been called, there appears to have been no urgency to justify calling Curren After careful consideration of all this testimony, both pro and con, it is my con- clusion that at the time fixed for determining eligibility Thomas O. Kent was a temporary employee Whatever his position may have been since then is just as immaterial as is Maddox's position since then. The only qualification for this is that if in fact, as contended by the Respondent, Thomas O. Kent is now a permanent em- ployee, he was changed to that status following the eligibility date. It is, therefore, my further conclusion that Respondent on or about September 14, 1964, changed Thomas O. Kent's employment status from that of a temporary employee to that of a permanent employee and that this change was made to make it appear that he was a permanent employee during the period of eligibility for the purpose of con- stituting him an eligible voter in the Board-conducted election in Case No. 14- RC-4930. ° The change in young Kent's employment status was a change in tenure of employ- ment and served to discourage membership in the Union. This is because it would have resulted in discouraging membership in the Union involved by causing it assuredly to lose the election and ultimately to lose whatever members it might have obtained in the unit. This, in my opinion, is a violation of Section 8(a)(3) of the Act. The same action on the part of Respondent constituted an interference with or restraint of its employees in the exercise of the rights guaranteed to them in Section 7 of the Act inasmuch as, if successful, it would have assured the loss of the election by the Union. This, in my opinion, is a violation of Section 8(a)(1) of the Act. VII. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The actions of Respondent as set forth above, occurring in connection with its operations described above, have close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce. VIII. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I recommend that it be directed to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. There is no need (and it would be inappropriate in view of my finding as to Maddox) to require the employer to change whatever status Thomas 0 Kent may have at this time to that status quo ante at the time of the representation proceeding in order to effectuate the policies of the Act. I do believe, however, that an order patterned, in part, after that framed by the Board in Weyerhaeuser Company, 134 NLRB 1371, 1376, reversed on grounds not applicable here 311 F. 2d 19, is appro- priate and desirable The records requirement is unnecessary because of the evidence constituting a part of the record herein. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding I make the following: CONCLUSIONS OF LAW 1. Palestine Telephone Company is, and at all times material herein has been, an employer within the meaning of Section 2(2) of the Act. 2. International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 702, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. WARNER COMPANY 1339 3. By changing the status of Thomas O. Kent from that of a temporary worker to that of a permanent worker and seeking to make it appear that he was such at the time of the Board's ordered election, the Respondent sought to defeat the Union in an election sought by its employees for the purpose of obtaining collective-bargaining rights, and Respondent did thereby discriminate, and is discriminating, in regard to hire or tenure or terms or conditions of employment of its employees, thus discour- aging membership in that labor organization and did thereby engage in and is engag- ing in an unfair labor practice affecting commerce within the meaning of Section 8(a)(3) of the Act. 4. By the same conduct, Respondent did interfere with, restrain, and coerce, and is interfering with, restraining, and coercing, its employees in the exercise of their rights guaranteed in Section 7 of the Act, and thereby did engage in and is engaging in an unfair labor practice affecting commerce within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and 2(7) of the Act.2 Recommended Order omitted from publication. 2 May Department Stores, d/b/a Famous-Barr Company v. N.L.R.B., 326 U.S. 376; Bethlehem Steel Company v. N.L.R.B., 120 F. 2d 641 (C.A.D.C.). Warner Company and Office Employes International Union, Local No. 14, AFL-CIO. Case No. 4-CA-3563. September 20, 1965 DECISION AND ORDER On June 23, 1965, Trial Examiner Harry H. Kuskin issued his Decision in the above-entitled proceeding, finding that 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 attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Decision, and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. 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 Trial 1 The Respondent offered to prove that , subsequent to the close of the hearing in the representation proceeding, the duties of employees whom the Board found to con- stitute an appropriate unit, and whom the Respondent contended are supervisors, have changed. The Respondent asserts that the Trial Examiner erred in rejecting its offer of proof and testimony relating to the unit issue. The Trial Examiner excluded the evidence in question on grounds that the duties of some of the employees in the unit admittedly have not changed , and that the rejected matters were essentially the same as those which the Respondent had previously presented to the Board in the course of the representation proceeding . The record supports this conclusion, and the Trial Ex- aminer's ruling was therefore not erroneous . In any event, we are satisfied from our examination of the Respondent's offer of proof that the evidence the Respondent would now adduce would not have affected the validity of the Board 's unit determination as made. See Dewey Portland Cement Company, 142 NLRB 951, footnote 1. 154 NLRB No. 112.