South Central Telephone Association, Inc.

SOUTH CENTRAL TELEPHONE ASSOCIATION, INC. 751 per week longer than others in his department. If Flood and Gris- wold were found to be supervisors, there would be 5 supervisors for 11 employees. On the basis of the foregoing considerations and the record as a whole, we cannot agree with the Hearing Officer's conclusions. While Hood and Griswold possess and exercise special. skills and perform some special duties, they do not, in our opinion, exercise independent judgment or responsibly direct employees in a manner or to a degree sufficient to find them supervisors within the meaning of the Act. Accordingly, we hereby overrule the challenges to the ballots of Frank Hood and Donald Griswold, and shall direct that those bal- lots be opened and counted. DIRECTION IT IS HEREBY DIRECTED that the Regional Director for Region 22 open and count the ballots of Frank Hood and Donald Griswold, and thereafter prepare and cause to be served upon the parties a revised tally of ballots, including therein the count of the above ballots. If, according to the revised tally of ballots, the Petitioner has received a majority of the valid ballots cast in the election, the Regional Director is directed to certify Milk Drivers and Dairy Employees Local No. 680 , of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining agent for the employees in the appropri- ate unit. If, according to the revised tally of ballots , the Petitioner has not received a majority of the valid ballots cast in the election, the Regional Director is directed to certify the results of said election. South Central Telephone Association , Inc. and Communications Workers of America, AFL-CIO. Case 17-CA-2816. Novem- ber 4, 1966 DECISION AND ORDER On June 30, 1966, Trial Examiner George Christensen issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices within the meaning 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. Thereafter, the Respondent filed exceptions and supporting brief to the Trial Examiner's Decision and the Charging Party filed cross-exceptions thereto 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 161 NLRB No. 68. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, 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 Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Add the following to paragraph 2(a) of the Trial Examiner's Recommended Order : [" ... and notify him, if presently serving in the Armed Forces of the United States of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." [2. The address and telephone number for Region 17, appearing at the bottom of the notice attached to the Trial Examiner's Decision, is amended to read : 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone FR 4-7000.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On December 27, 1965 ,1 the Communication Workers of America , AFL-CIO, hereafter called the Charging Party or the Union, filed a charge with the National Labor Relations Board, hereafter called the Board, alleging that South Central Telephone Association , Inc., hereafter called the Respondent or the Company or the Employer, violated Section 8(a)(1) and ( 3) of the National Labor Relations Act, as amended, hereafter called the Act. On February 11, 1966 , the Board issued and served on the Company a formal complaint based upon the charge. On February 15, 1966, the Respondent filed its formal answer to the complaint denying the commission of any unfair labor practices. Pursuant to due notice a hearing was conducted on April 5 , 1966, at Medicine Lodge, Kansas, before Trial Examiner George Christensen . All parties were repre- sented at and participated in the hearing, were afforded full opportunity to adduce evidence, to examine and cross -examine witnesses, to present oral argument, and to submit briefs. The General Counsel and the Respondent have submitted briefs. Upon the entire record 2 and from observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is a Kansas corporation with its principal place of business in Medicine Lodge, Kansas. It provides telephone service to approximately 1,500 users in the States of Kansas and Oklahoma and employs , inter alia, several servicemen to install, repair, and maintain its equipment. The Respondent's annual ' All dates refer to 1965 unless otherwise indicated. 2 On May 3 , General Counsel moved for ceitain corrections of the transcript ; without objection , the motion is granted. SOUTH CENTRAL TELEPHONE ASSOCIATION, INC. 753 gross volume of business exceeds $100,000. During 1965 the Respondent performed services valued in excess of $20,000 in Oklahoma. Respondent concedes and I find that Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Communications Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and issues For many years the Respondent has divided the two-State area within which it provides telephone service into three divisions for the purpose of allocating its servicemen. Prior to December 2, Guy Cooke serviced the towns of Hazelton, Sharon, Lake City, Sun City, and Medicine Lodge, Kansas, and the surrounding areas; Harold Mize, the towns of Iuka, Byers, and Turon, Kansas, and surrounding areas; and Howard Ellis, the towns of Byron and Burlington, Oklahoma, and surrounding areas. Ellis' request for a wage increase in the spring of 1965 was denied. In late August, Ellis informed Company Manager H. E. Hilliard that he was having trouble making ends meet on his salary and intimated he might resign and attend a trade school to better himself. Hilliard promptly secured authority to find and secure a replacement for Ellis and interviewed Billy Young, a man with electrical but no telephone experience, about September 1. On September 15 he interviewed Young again and put him to work.September 16. There is conflict over whether Ellis gave a notice of resignation or merely stated a possibility and whether Young was hired to replace Ellis or as an "extra man." There is further conflict over whether Ellis in late September informed Hilliard that he had abandoned any thought of leaving the Company and whether certain acts of Hilliard indicated an intent to continue both Ellis and Young in the Com- pany's employ. In any event, Ellis did make up his mind to stay by late September, after investi. gating two possibilities for securing greater compensation and finding neither would meet his needs. On the basis of a conversation with a Bell Telephone Com- pany serviceman, he then contacted the. Union to see if it could better the wages and working conditions of the Company's servicemen. He sought and secured the signatures of all four servicemen to authorization cards furnished by the Union and sent them to the Union. On October 25, the Union directed a letter to Hilliard advising the Company that a majority of its clerical and plant employees had designated the Union as their exclusive collective-bargaining representative and requested Union recognition and bargaining. On November 10, the Union sent a second letter to Hilliard advis- ing the Company of the names of the Union's organizing committee (the four servicemen), that Ellis was its chairman, and renewed the request for recognition. On November 12, Hilliard addressed a letter to the Union refusing the recogni- tion request on the ground the Company did not believe the Union represented a majority. On November 16, the Union filed a petition with the Board for certification as the exclusive representative of the Company's employees in the unit sought. That same date, Ellis received a letter from Hilliard purporting to accept Ellis' resigna. tion and notifying him that his last day of work was December 1 or sooner if he desired. On November 29, Ellis replied by letter that he had no intention of resigning, that he was satisfied with his employment and had no intention to leave. On December 2, Ellis received a second letter from Hilliard stating he was dis- missed; Hilliard orally confirmed the dismissal on December 3. On two occasions in the period between its receipt of the Union's notice of majority status and recognition and bargaining request and the Board election date (October 25-December 15), the Company displayed its hostility and opposition to union representation of its employees in interviews conducted by company officials with servicemen Mize and Cooke. 264-188-67-vol. 161-4 9 754 DECISIONS OFNATIONAL LABOR RELATIONS 'BOARD On December 15, the employees ,in the unit sought by the Union in its Novem- ber 16 petition participated in a Board election conducted by^ mail ballot (Case 17-RC-4928). The General Counsel contends Ellis did not resign but was discharged; he was not discharged for cause but rather because of his union membership , activities, and support and to discourage other -employees' union membership , activities, and support ; and statements made by company officials to employees Mize and Cooke prior to the election interfered with their Section 7 rights under the Act.3 The Respondent alleges that Ellis resigned voluntarily or, in the alternative , that he was discharged for cause ; the statements made to Mize and Cooke were not viola- tive of Section 8(a)( I) of the Act; and it did not violate the Act in any manner.4 The issues presented for determination are: (1) Did Howard Ellis resign or was he discharged? (2) If he was discharged, was he discharged for cause or was . the purported cause a pretext for another motive-Ellis' union membership, activity, and support and to discourage other employees' union membership, activity, and' support? (3) Did the Company interfere with, restrain, or coerce its employees Mize and Cooke in the exercise of their Section 7 rights under the Act during the course of interviews conducted by its officials between October 25 and December 15? B. The sequence of events 1. The alleged resignation Ellis testified that in late August he told Company Manager Hilliard that "I was unable to make a go of it on the salary I was receiving and that I would like to look into a trade school that I had run across to" see what I could do there and then as soon as I came to a definite conclusion I would let him, know." Hilliard confirmed the statement in part,5 stating that Ellis said that "He '[Ellis] - said- that he couldn't make it on the present salary he was getting, and that he had to look for something that would pay more money. And it didn't look like the telephone business would pay that kind of money, so he had to get into some other field or do something different." On cross, Hilliard said the same thing with a few more details, reporting that Ellis said "it was necessary he make more money. He had six children, and they were getting fairly large, and he had to think about their future and educate them. And he had to get into something that would pay a greater amount of money than it seems the-telephone company would be capable of paying." Hilliard commented that he said he would be sorry to see Ellis go, and asked what he was contemplating, to which Ellis replied that he was thinking of going to some kind of school to get a license as an electrician. One thing is clear-Ellis was registering his continued dissatisfaction with his current pay scale (he had been denied a wage increase request in the spring), in a manner commonly utilized by employees everywhere to motivate their employers to grant an increase rather than go through the trouble and expense of securing and training a replacement and operating short handed while such replacement was located and trained. 2. The hire of Billy Young Hilliard's response was certainly not the one Ellis anticipated or wanted. Instead of going to the Company's board of directors for an increase for Ellis, Hilliard secured authority from them to hire a new man and promptly (about September 1) secured an applicant, one Billy Young of Cherokee, Oklahoma, a man with prior electrical (but no telephone) experience. Billy Young testified that when he talked to Hilliard on September 1, Hilliard told him that he was under consideration- as a replacement for Howard Ellis in the 8 The General Counsel moved at the hearing to amend the complaint and add a new subsection 5 to paragraph VI, alleging a December 2 threat by Company President Mills of loss of employee benefits if the Union attained representative status. The motion was granted with the proviso the Respondent might have additional time to rebut if surprised. The Respondent did not seek additional time.' 4 Following the close of General Counsel's presentation of evidence, Respondent moved to dismiss the complaint on the ground the General Counsel had failed to establisli a prima /acre case. Ruling was reserved. The motion' is herewith denied for-'reasons here- after expressed r 5 Hilliard denied that part of Ellis' statement wherein Ellis said he told Hilliard he "would let him know" when and if he decided to leave the Company's employ. SOUTH CENTRAL TELEPHONE ASSOCIATION, INC. 755 event Ellis left the Company's employ; but that when Hilliard called him into the office on September 15 and hired him to go to work on September 16, he said that -"things had changed a little since I put my application in, he didn't know whether Mr. Ellis was leaving or not and that they needed an `extra man' to work con- struction and maintenance all over the system, and asked me if I would be inter- ested ..." Hilliard denied any conversation on September 1 with regard to Howard Ellis and stated that on September 15 he told Young "that he would be a replace- ment for Mr. Ellis and it would be a permanent job as a replacement." Hilliard did not keep Ellis in ignorance of his actions with regard to the board authorization to hire another serviceman and his contact with Young; however. he told Ellis that "his hiring of Billy Young put no pressure on me in any way at all, if I wanted to stay he was more than happy to have me stay . . ." to which Ellis replied that "I hadn't reached my decision yet but as soon as I did I would let him know." 6 3. Ellis' retraction Ellis moved quickly. He made three trips to Dallas, all in September, the first two to investigate a trade school which also offered a job and the third ti ip to investigate the possibility of operating a motel. On the second trip he found the promised job "was nothing at all like what it had been represented to me;" on the third trip he found that he didn't have the finances to operate the motel so he "gave up the idea of going to Dallas about the third week in September." Ellis testified that shortly after reaching this decision, he had a conversation with Hilliard, at which time he told Hilliard that "I was going to stay with the Company, I had full intentions of remaining and asked him if I could have a week's vacation," to which Hilliard replied that "I had to have the year completed before I was entitled to any vacation." Ellis then asked if he could take a week off without pay, to which Hilliard replied "That would be fine . . . Bill [Young] could take care of things while you were gone," and "He [Hilliard] was glad I [Ellis] had decided to stay, he liked my work and he was pleased with it and hoped I would stay indefinitely." 7 4. September and October-four servicemen Serviceman Harold Mize testified without contradiction that in a conversation he had with Company Manager Hilliard about the middle of September, Hilliard informed him that if Ellis decided to stay on, Young would also be kept, inasmuch as there was plenty of work for an extra (fourth) man to perform outside con- struction, tree trimming, line repair, etc., and the Company would then also have an extra man available to fill in for absences due to vacation, illness, etc. or as a trained replacement if Ellis or any other serviceman left the Company's employ. Mize also testified that a director of the Company, Arthur Beck, made a similar statement to him about the same time .8 The evidence establishes that Billy Young, an Oklahoma resident, was assigned to and did work primarily with Howard Ellis following his September 16 hire, which was natural, inasmuch as Ellis served the Oklahoma exchanges and also lived in Oklahoma. It was further established that Young also worked with Mize and Cooke and, do outside (construction) jobs, it was more a case of Ellis assist- ing Young than vice versa, since Young was very familiar with this type of work. Since Ellis' termination, Young has taken his place. On four occasions since the termination, Young has required help to perform his duties. In the 4 weeks pre- ceding the hearing, a contractor employee has worked full time with Young, and was expected to continue so to do for an indefinite time in the future. At the time Young was hired, Mize, Ellis, and Cooke each drove a 1/2-ton pickup truck provided by the Company, which each used to go to and from his home and the various exchanges serviced, to outside installations of telephones and lines, and also to perform personal errands such as grocery and mail pickups and the "Hilliard neither confirmed nor denied this conversation except to generally deny that Ellis equivocated about whether or not he was going to leave the Company's employ 7 Hilliard confirmed that Ellis asked for and was granted a week off in October without pay in lieu of his vacation request; he neither admitted nor denied that Ellis told him he was staying with the Company, stating he had "no recollection" of such a statement. 8 Hilliard neither admitted nor denied the Mize conversation ; Beck confirmed the con- versation, but says he only intended to convey that there was enough work for an extra man for a limited time in the future. 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD like. The Company also operated a larger line truck. This truck was used solely for outside construction work and usually was left at the jobsite. When it was moved, Young drove it. Young either had to be picked up and delivered to the various jobsites by the other servicemen or use his own auto. About the middle of October, Hilliard announced the purchase of a new pickup for Cooke and that Cooke's old pickup would be retained by the Company and turned over to Young for his transportation needs. About the same time, Hilliard told Young and Ellis they would be assigned to attend an electronics school in the near future .9 5. Union activity About the same time (late September) that Ellis reached his decision to stay with the Company, he contacted Union Representative Parsons, then solicited and secured signatures of the other three servicemen to union authorization cards, signed one himself, and transmitted the four signed cards to Parsons. On October 25, Parsons directed a registered letter to the Company requesting union recognition and bargaining. This was the Company's first inkling that its employees were interested in union representation. The Company still had no knowledge of Ellis' role in seeking out the Union for tbis.purpose. However, on November 10, Parsons directed a second registered letter to the Company in which he advised that Ellis was the chairman of the Union's organiz- ing committee. 6. Ellis' termination The Company's board of directors discussed Ellis' job status at its regular Octo- ber meeting and at a special meeting of the board conducted in conjunction with the annual meeting of the corporation in early November, but took no action. At its first regular monthly meeting following receipt of Parsons' November 10 letter, though, the board instructed Company Manager Hilliard to accept Ellis' "resignation." 10 In accordance with the board of directors' wishes, Hilliard immediately on November 16 dispatched a registered letter to Ellis in which he informed Ellis that the board of directors had directed him to give Ellis an effective date for the termination of his employment pursuant to Ellis' notice of resignation and that the date of such termination would be December 1. The letter also recited various grounds of dissatisfaction with Ellis, which shall be explored in detail later. On November 28, Ellis replied with a reminder that he had advised Hilliard in late September that he had no intent to resign, that he did not resign, that he plan- ned to continue in the Company's employ, and closed with comments concerning the expressed grounds for the Company's dissatisfaction with him. On December 1 Hilliard responded by alleging he did not recall Ellis' September withdrawal of his "previously stated desire to resign" and reaffirmed Ellis' termina- tion effective November 30. 7. Reasons for the termination Hilliard's November 16 letter to Ellis recited the following grounds for his termination: (1) Receipt of numerous complaints from Ellis' creditors regarding past due bills and accounts. (2) Use of company vehicle for personal business. (3) Time off from work in excess of vacation time. (4) Engaging in outside business activities, i.e., door-to-door sales work and hauling hay. 0 The new truck was not received until after Ellis' termination ; however, four pickup trucks were retained after delivery of the new vehicle. Hilliard neither admitted nor denied the statements attributed to him regarding the use of Cooke's old pickup and school attendance. 10 The record discloses that the Company relies heavily upon Milliard's representation to the board of directors that Ellis had resigned ; however, as discussed heretofore, Ellis' alleged resignation was equivocal at best, Ellis later informed Hilliard he intended to remain, and Hilliard's actions subsequent to the hire of Young clearly support a single inference-that the Company intended to retain both Ellis and Young. SOUTH CENTRAL TELEPHONE ASSOCIATION, INC. 757 Hilliard's letter stated the above violated company employment policy and adversely reflected upon the Company's reputation. . (5) At the hearing the Company attempted through cross-examination of Ellis, to develop a fifth complaint : Ellis' use of the company telephone to make personal calls, particularly toll calls. Each of the above shall be covered seriatim: (1) Creditor complaints : The record discloses evidence of two debt delinquen- cies-one, a bill for $10 due Mr. C. L. Fullington , a hardware store owner and company director; two, a bill (amount undisclosed ) due the Company for personal use of the company telephone . Ellis testified without contradiction that both these debts were paid when they were brought to his attention . It was also undisputed that Ellis received his first knowledge of these matters when he received Hilliard's November 16 letter of termination . The Company did not introduce any evidence of any other bills nor evidence to' support the allegation of a company policy of terminating employees upon receipt of complaints concerning unpaid bills without notice and opportunity to satisfy same. (2) Personal use of company vehicle: Ellis testified unhesitatingly that he utilized the company vehicle to pick up mail and groceries and perform an occa- sional personal errand, but further testified without contradiction that both Hilliard and various of the company directors knew of this throughout his employ and never told him the practice violated company policy nor to desist therefrom, and that his first knowledge of company displeasure came with his reading of Hilliard's November 16 letter. The Company did not produce any evidence with regard to this "policy" other than Hilliard's letter and did not rely on this as a ground for discharge in its argument . With regard to the alleged policy, it should be noted that Hilliard, in talking to serviceman Mize, mentioned personal use of the com- pany vehicle as a benefit the servicemen would lose if the Union achieved repre- sentation status. (3) Excess time off: Ellis testified and Hilliard corroborated that Ellis' request for a week off without pay in October was approved by Hilliard. The Company did not introduce evidence of any other time off from work outside vacation time. Neither did the company produce any evidence of an alleged company policy against such time off nor rely on this incident as a ground for Ellis' discharge in its argument. (4) Outside business activity: The Company made no effort to substantiate this allegation of the November 16 letter nor did the Company rely upon this ground as a basis for Ellis' discharge. (5) Personal use of the company telephone : Ellis freely conceded that he used the company telephone to make personal telephone calls, including toll calls. It was undisputed, however, that all the servicemen made personal calls both during and outside their normal working hours ; the Company permitted free use of its telephone facilities by employees for local calls ; and the employees were permitted to charge toll calls to their personal telephone numbers and pay them later. Ellis' testimony that he had paid for all such calls was uncontradicted. 8. Employee interrogations Serviceman Harold Mize testified that on November 12 he telephoned Manager Hilliard with regard to some cable trouble and, in the course of the conversation, Hilliard said: What do you know about this Union, Harold . . . Did you sign up for it . . . What's the reason for the Union. . . . Mize further testified that approximately 2 weeks later, Hilliard telephoned him and fixed a time to meet with him. At the appointed time, Hilliard appeared, accompanied by Company President Mills. The two company officials then cited wage benefit, and employment condition comparisons between various companies which reflected in the Company 's favor. President Mills them advanced several arguments against union representation, ending with a statement that if the Union came in, they would lose this "family thing." Hilliard followed Mills with the statement that: Yes, we would have to-we would be expected to go to work at 8 and have an hour for dinner and go home at 5 at night and not-leave the truck at the 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office like Bell (Telephone Co.) is expected to do . .. that there would be no use of the Company truck for personal errands like running the mail home in midmorning. Serviceman Guy Cooke testified to a similar interview with Hilliard and Mills. After showing Cooke the same wage, benefit, and employee condition comparisons, Mills advanced antiunion arguments similar to those expressed to Mize, stating, inter alia, that: "If it did go Union, we might lose some of our benefits .. . like having time off for funerals." Neither Mills nor Hilliard contradicted the testimony of Mize and Cooke related above. C. Concluding findings In a small company, relations between management and employees is often per- sonal and intimate, on a first-name basis. At this. Company, this was certainly true. Manager Hilliard, necessarily the company official in most frequent contact with both the employees and the directors, acted as a conduit between them, trans- mitting their respective views, desires, and decisions. As natural in such a position, Hilliard tried to be a "good fellow" to all. In sustaining that image, however, it is apparent that he was less than frank both with the directors and the employees. It appears clear that Hilliard informed the officers and directors that Ellis had submitted an unequivocal resignation. However, the testimony of Ellis and Hilliard and Hilliard's letter to Ellis confirm that at best all Ellis conveyed was a wish or desire to leave if he could better himself." Ellis' testimony, which was undenied by Hilliard, established that in late Septem- ber Ellis informed Hilliard he had abandoned the idea of bettering himself outside the Company's employ.12 It appears Hilliard failed to convey this information to the directors. Hilliard informed Young that he was hired as an "extra man" and not as a permanent replacement for Ellis, and informed both Ellis and Mize to the same effect.13 He gave the directors the impression that Young had been hired to replace Ellis. Until the advent of the Union, Hilliard enjoyed the best of both worlds. Faced with the possibility of disruption in "the family," as Company President Mills termed it, and with the identity of the family member who had disrupted that harmony disclosed, however, Hilliard necessarily joined with the officers and direc- tors of the Company in opposition to employee efforts to secure representation outside the Company with regard to their wages, hours, and conditions of employ- ment, echoed President Mills' expressed hostility to the Union and, at the direction of the board, abruptly terminated Ellis' employment. I find that Ellis did not in early September or at any time subsequent voluntarily resign his employment with the Company but rather find that in late August Ellis told Hilliard he would like to leave the Company's employ provided he could better himself and in late September advised Hilliard that he had abandoned any thought of leaving the Company's employ. I therefore further find that Ellis was discharged on or about December 1 and the Company has failed or refused to reinstate him at any time subsequent. Turning next to the Company's motive for discharging Ellis, I find that the rea- sons advanced for Ellis' discharge were simply pretexts and that Ellis was dis- charged because of his union advocacy, support, and activity and to discourage other employees from similar union support and activity. 11 The testimony of Ellis that in late August he only indicated to Hilliard a desire to leave the Company's employ if he could better himself and that he told Hilliard in late September he had abandoned his hopes and had no intention to leave is credited Hilliard did not deny the latter and partially corroborated the former In addition, Hilliard", en- tire course of conduct between September 1 and November 16 as outlined in III, B, 1 thiough 4, above, consistently supports the conclusion that Hilliard intended to retain Ellis as a permanent employee-which is clearly more logical than replacing Ellis-11 trained, experienced telephone serviceman whose work had been acknowledged as excel- lent-with an untiained, inexperienced new lure (Young) 72 See footnote 11. 33 The testimony of Ellis, Young, and Mize to this effect is credited Hilliard did not contradict Mize's testimony, partially corroborated the testimony of Ellis and Young, and Hilliard's conduct as well as the logic of the situation (see footnote 11, ibid ) supports this conclusion SOUTH CENTRAL TELEPHONE ASSOCIATION, INC. 759 As earlier found, Young was informed in September by Hilliard that he was hired as an "extra man." Mize and Ellis were similarly informed. Ellis was a trained, experienced telephone serviceman and Hilliard repeatedly had expressed his satisfaction with the quality and quantity of Ellis' work. Ellis had advised Hilliard in late September that he had abandoned any idea of leaving the Com- pany's and Hilliard expressed gratification at receiving this advice. Under these circumstances , it would appear extremely illogical to discharge such a man and go to the trouble and expense of training and providing assistance to a new man unless there were compelling reasons for such discharge. Many of the reasons advanced by the Company in its November 16 letter to Ellis terminating his employment were not supported by evidence at the hearing, and were not relied upon by the Company.14, The alleged improper personal use of the Company's telephone to make toll calls was not recited to Ellis as a reason for his discharge at the time of discharge and was not developed other than through cross-examination of Ellis at the hearing. Further evidence established that it was common practice for employees to charge personal toll calls and Ellis had paid for those he made. This belated " reason," therefore, has no merit. The only evidence adduced at the hearing concerning personal use of company vehicles again was not developed other than through cross-examination of Ellis and again it was established that such use was known to and condoned by manage- ment (in fact, Hilliard indicated to Mize this was one of the benefits that would be lost if the Union came in). This reason likewise lacks merit. Some effort was made to support the contention that Ellis was discharged because his creditors were complaining to the Company regarding Ellis' delin- quency in paying his bills and this was reflecting adversely upon the Company in the communities where the Company supplied telephone service. The only evi- dentiary support in this area came from Ellis, who volunteered the information under cross-examination that he owed hardware store owner-Company Director Fullington $10 and was behind to the Company itself on his phone bill. The "complaining creditors," then, were the Company and one of its directors. The evidence further establishes that while Ellis' delinquent bills were discussed by the Company's board of directors at its regular October meeting and November 4 meeting in conjunction with its annual meeting, Ellis was not contacted with regard to such bills nor apprised of any company policy with regard thereto. It was undis- puted that the two bills set out above were paid when Ellis was made aware of them as a source of concern to the Company in its November 16 letter of termination. The flimsy and insubstantial nature of this complaint, its lack of evidentiary sup- port, and the absence of any proof of a company "policy" to discharge employees without notice or opportunity to pay delinquent bills warrants a finding that this reason also lacks merit. With its alleged reasons patently frivolous and/or unsupported, the Company places its major emphasis on the argument that Young was hired as a replacement for Ellis in the belief Ellis was resigning and therefore, since Ellis did not resign, he was discharged in order to reduce the serviceman force to its normal comple- inent of three. This is contradicted by Hilliard's statement to Young, Ellis, and Mize that Young would be an "extra man" for use as a fill-in for absences, vaca- tions, or illness, to catch up on the tree trimming work, etc.; his announcement that Cooke's vehicle would be furnished to Young for his personal transportation when Cooke's new truck was delivered; and his statement to Young and Ellis that they would be sent to an electronics school. While circumstances may alter a Company's plans to augment or retain its work force, the question arises as to what changed circumstances occurred in this case. There was no evidence of a reduction in the anticipated workload of the service- men between September 16 to November 16 (the former, the date of Young's hire; the latter, the date of Ellis' discharge); no evidence of unanticipated and heavy increases in costs or reductions in income; or the like. There was evidence of only one new and significant changed circumstance-the possibility that the Company might have to bargain collectively with the Union concerning the wages, hours, and conditions of its employees, the knowledge that Ellis was the chairman of the union organizing committee attempting to bring about that result, and the 14 No evidence or argument was advanced in support of the contentions that Ellis (1) took an excessive time off from work, or (2) engaged in outside business activity. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact a Board-conducted election scheduled for December 15 would determine the question. The conversations Company Officials Mills and Hilliard conducted with service- men Mize and Cooke demonstrate that the Company resented and was opposed to the intrusion into the "family " of an outside labor organization; resentment which naturally would be directed against the family member responsible for the intrusion-Ellis. And nothing could be better calculated to intimidate the employ- ees in the unit and weaken their support of the Union than the discharge of their designated chairman 15 days before the vote. With regard to the conversations of Company Officials Mills and Hilliard with employees Mize and Cooke , I find that in the course of Hilliard's two conversations with Mize , he coercively interrogated Mize concerning his union affiliation , activi- ties, and support and impliedly threatened that hours of work would be increased and employee benefits reduced (personal use of the company vehicle ), if the Union were supported by the employees . It is my further finding that Company President Mills impliedly threatened in his conversation with employee Cooke that an employee benefit would be lost-time off to attend funerals-if the Union were supported by the employees. Based upon the foregoing , I find and conclude that in the course of resisting its employees' attempts at self-organization , the Company violated Section 8(a)(1) and (3 ) of the Act by discharging Howard Ellis and further violated Section 8 (a) (1) of the Act by the statements attributed to Company Officials Hilliard and Mills just set forth. IV. EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in III, above , occurring in connection with its operations described in I, above, have a 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 and the free flow of commerce. V. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, I shall recommend that the Respondent be ordered to cease and desist therefrom and to take affirmative action of the type conventionally ordered in such cases as pro- vided in the Recommended Order below, which I find to be necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. Having found that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging Howard Ellis, I shall recommend that Respondent shall offer him immediate and full reinstatement to his former or a substantially equivalent posi- tion without prejudice to his seniority or other rights and privileges , and make him whole for any loss of earnings he may have suffered as a result of the discrimina- tion against him , by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement , less his net earnings during such period, with backpay and interest thereon to be computed in the manner pre- scribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Because the Respondent by its conduct violated fundamental employee rights guaranteed by Section 7 of the Act and it appears from the nature and manner of the commission of those acts a disposition to commit other unfair labor practices, I shall recommend that Respondent cease and desist from committing the specific acts found to infringe upon those rights as well as generally desist from in any other manner infringing thereupon. CONCLUSIONS OF LAW 1. The Respondent is an Employer engaged in commerce within meaning of Section 2(2), (6), and (7) of the Act. 2. The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. 3. By discouraging union membership through discrimination in employment and interfering with, restraining , and coercing its employees in the exercise of their SOUTH CENTRAL TELEPHONE ASSOCIATION, INC. 761 rights under the Act, as found above, the Respondent has engaged in and is engag- ing in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law, and pur- suant to Section 10(c) of the Act, I recommend that South Central Telephone Association, Inc., of Medicine Lodge, Kansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Communications Workers of America, AFL- CIO, or in any other labor organization of its employees, by discharging, laying off, or refusing to reinstate any of its employees because of their concerted or union activities, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. (b) Interrogating employees concerning union affiliation or activities in a manner constituting interference, restraint, or coercion violative of Section 8(a)(1) of the Act. (c) Attempting to discourage or discouraging membership in, support of, and activities on behalf of Communications Workers of America, AFL-CIO or any other labor organization of its employees by promise of benefit or threat or reprisal. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Howard Ellis immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make whole Howard Ellis in the manner set forth in "The Remedy" section of this Decision. (c) Preserve and, upon request, make available to the Board or its agents all payroll and other records as set forth in "The Remedy" section of this Decision. (d) Post, in conspicuous places, at its place of business in Medicine Lodge, Kansas, and all other of its business locations and exchanges where notices to employees are customarily posted, copies of the attached notice marked "Appen- dix." 15 Copies of such notice, shall be furnished to Respondent by the Regional Director for Region 17, and shall be signed by a representative of Respondent and posted immediately upon Respondent's receipt of such notice and be maintained for at least 60 days thereafter. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.ls '' In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for "the Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for "a Decision and Order." IU In the event that this Recommended Order is adopted by the Board, this provision shall be modified by the substitution of "10 days from the date of this Order" for "20 days from the receipt of this Decision." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of Com- munications Workers of America, AFL-CIO, or in any other labor organiza- tion, by discriminating in any manner with regard to hire, tenure of employ- ment, or any term or condition of employment. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form labor organizations, to join or assist the above -named or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection , or to refrain from any or all such activities. WE WILL offer to Howard Ellis immediate and full reinstatement to his former or substantially equivalent employment without prejudice to his senior- ity or other rights and privileges and will make him whole for any loss of earnings and benefits suffered as a result of our discrimination against him. WE WILL NOT interfere with, restrain, or coerce our employees in the exer- cise of their rights set out in the second paragraph above by coercively inter- rogating them concerning membership in or activities on behalf of Communi- cations Workers of America, AFL-CIO, or any other labor organization; or by directly or indirectly promising benefits for desisting from union member- ship, support, or activity or directly or indirectly threatening reprisals for union membership, support, or activity. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights set out in the second paragraph above. All our employees are free to become or remain, or to refrain from becoming or remaining, members of Communications Workers of America, AFL-CIO, or any other labor organization. SOUTH CENTRAL TELEPHONE ASSOCIATION, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-We will notify Howard Ellis if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accord- ance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri 64106, Telephone FR4-5082. Better Val-U Stores of Mansfield, Inc. and Food Handlers Union, Local 371, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO. Case 1-CA-5274. November 4, 1966 DECISION AND ORDER On June 13, 1966, Trial Examiner James V. Constantine issued his Decision in the above-entitled proceeding, finding that Respond- ent had engaged in and was engaging in certain unfair labor practices within the meaning 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. He also found that Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief, and the Respondent filed an answering brief. 161 NLRB No. 71.