Central Power & Light Co.

CENTRAL POWER Central Power & Light Company and International Brotherhood of Electrical Workers, AFL-CIO. Cases 23-CA-2774 and 23-CA-2885 October 24, 1968 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On June 24, 1968, Trial Examiner Gordon J. Myatt issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged 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 Decision. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices. Thereafter, the Respondent, the Charging Party, and the General Counsel filed exceptions and supporting briefs. 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 these cases to a three- member panel. 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, the briefs, and the entire record in these cases, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, except as modified herein. The Trial Examiner concluded on the basis of the credited testimony that the General Counsel had not established by a preponderance of the evidence that Davis was discharged in violation of the Act, since no causal connection, beyond mere suspicion, was estab- lished between the discharge of Davis and his stand in favor of the Union. We disagree. The Trial Examiner found that Davis had been employed as a janitor for approximately 11 years, the last six of which he had also worked at the Yacht Club. He also found that the Employer knew of the union campaign at least by January 27, 1967, and that Davis signed an authorization card on April 12, 1967, a fact not known to the Respondent or Davis' 1 In its exceptions and supporting brief the Respondent renewed its contentions that the Trial Examiner erred in granting the General Counsel's motion to reopen the record in Case 23 -CA-2774 (which hearing had been held and closed) and consolidating that case with Case 23-CA-2885, and also renewed its contention that the amendments to the complaint in Case 23 -CA-2885, made by the General Counsel at the reopened and consolidated hearing, were barred by the provisions of Section 10(b) of the Act We find that the Trial Examiner did not exceed the discretion permitted him under Section 102 .35(h) of the Rules and Regulations, Series 8, as 173 NLRB No. 50 & LIGHT CO. 287 fellow employees. On May 5, after the janitors had received a campaign letter from the Union, Davis and one other employee made prounion statements to a group of fellow employees, as they were waiting to begin work, and in the presence of Head Janitor Mays. The Trial Examiner-found that Mays' state- ments at this time to the group of janitors violated Section 8(a)(1). On May 9, Davis allegedly left the Respondent's premises and went to the Yacht Club, his second job, during his lunch hour. About May 12, on being questioned about a dirty ash-tray in one of his rooms, Davis reported that employee Jordan was responsible for it, since he had been watching television in that room. Jordan was given a reprimand for this. At about this same time, Jordan reported to Head Janitor Mays, who in turn reported to Building Superintendent Shepard, that Davis had been leaving the premises every Tuesday evening for an hour and going to the Yacht Club, and that on May 9, he had taken Jordan's vacuum cleaner to the Yacht Club. In practice, the janitors took a half hour for lunch, from 9 p.m. to 9:30 p.m. On May 16, Davis was given the day off for personal reasons by Shepard, who at that time said nothing about Davis leaving the premises during the work day. On May 23, Shepard laid in wait for Davis, and when Davis went to the Yacht Club during his lunch break, discharged him, allegedly for leaving the Respondent's premises and working for another employer on Respondent's time. Davis testified that in the past he had gone to the Yacht Club to leave cleaning supplies he had pur- chased, but that he had never taken more than the half hour lunch period to do this, and that the night of May 23 he was only gone for a half hour and had done no work at the Club, contrary to the testimony of Shepard. The Trial Examiner found that Jordan was a biased witness, and therefore did not rely upon his testimony that Davis regularly left the Respon- dent's premises for periods of from 45 minutes to an hour. He also did not rely upon Shepard's testimony that Davis was a highly unsatisfactory employee, since he found Shepard to be the type of person who would not tolerate such conduct from an employee for a period of 11 years. The Trial Examiner also noted Shepard's testimony that he had followed Davis when he left the Respondent's premises on a previous occasion about 3 years ago, but had not discharged or reprimanded Davis at that time because not instructed amended. However, our affirmance of the Trial Examiner 's ruling in this respect is not to be construed as approval of the General Counsel's method of procedure in these cases. 2 These findings and conclusions are based , in part, upon credibility determinations of the Trial Examiner to which the Respondent has excepted . After careful review of the record, we conclude that the Trial Examiner 's credibility findings are not contrary to the clear preponderance of all relevant evidence. Accordingly , we find no basis for disturbing those findings. Standard Dry Watt Products , 91 NLRB 544 , enfd. 188 F.2d 362 (C.A. 3). 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to do so. Shepard also stated that he was not instructed to discharge Davis on this occasion, but thought that the situation warranted such action. The Trial Examiner also noted Davis' testimony that employees were not to leave the premises without permission except during the lunch period, that other employees left the premises during the lunch hour, and that he had done so on numerous occasions and had not been reprimanded. Shepard acknowledged that Davis had received periodic pay increases during the time that he was employed and that he, Shepard, had to initiate or express an opinion on each pay raise given an employee under his supervision. We find that the alleged reason given by the Respondent for the discharge of Davis was pretextual in nature, and that Davis was discharged for his prounion sentiments, in violation of Section 8(a)(3) of the Act. In reaching this conclusion, we view as especially significant the close proximity in time between the prounion statements of Davis on May 5, immediately after the janitors had all received a letter from the Union, the determination by Building Superintendent Shepard about May 12 to trap Davis, after employee Jordan had reported that Davis had left the plant on May 9, and the final act of watching for Davis to leave the plant on May 23, and his immediate discharge thereafter. Also significant is the fact that there is no proof that Davis had ever been warned about leaving the Respondent's premises, even though Shepard testified that he had followed Davis on a previous occasion, and was not warned by Shepard after he had learned of the May 9 incident, although he did speak with Davis on May 16 when Davis requested the day off for personal reasons. Further, Davis had been employed for 11 years, the last six of which he had also worked at the Yacht Club, and there is no proof in the record that he had ever been warned about leaving the premises.3 Rather, the record shows only that he received periodic pay increases approved by Shepard. The Respondent had been aware of union activity among the employees at least since January 27, 1967, and obviously was aware of the letter which the janitors had received on May 5. The discharge of Davis is a part of the pattern of coercive conduct which the Respondent has carried on against its employees, which conduct the Trial Examiner found violated the Act. Finally the Trial Examiner did not in any way rely upon the testimony of Respondent's witness Jordan, and placed no reliance on Shepard's testi- mony that Davis was highly unsatisfactory. THE REMEDY Having found that the Respondent violated Section 8(a)(3) and (1) of the Act by the discriminatory discharge of Wayne W. Davis on May 23, 1967, it is ordered that the Respondent offer Wayne W. Davis immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges, and make Wayne W. Davis whole for any loss of earnings he may have suffered by reason of such discrimination by payment to him of a sum of money equal to that which he would have earned as wages from the date of his discharge to the said offer of reinstatement, less his net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 294, and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. AMENDED CONCLUSIONS OF LAW Delete Conclusion of Law 7 and substitute the following. "By discharging employee Wayne W. Davis because of his pro-Union sentiments, the Respondent violated Section 8(a)(1) and (3) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that the Respondent, Central Power & Light Company, Corpus Christi, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Add the following as paragraph 1(e) of the Recommended Order, and renumber paragraph 1(e) as paragraph 1(f) (e) Discharging employees or discriminating in regard to their hire, tenure of employment, or any term or condition of employment, because they have engaged in concerted activities for the purposes of collective bargaining or other mutual aid or protec- tion. 2. Add the following as paragraphs 2(c), 2(d), and 2(e) of the Recommended Order, the present para- graphs 2(c) and 2(d) being relettered as 2(f) and 2(g), respectively: 3 Shepard did testify that in December 1966 he saw Davis working on his car in the company parking lot , and the next day told Davis that " . . . he knew it did not look good out there working on the car when he should have been in the building doing work assigned to him." Such a statement cannot be construed to be a warning not to leave the company premises during the lunch period. Shepard also testified that in the past he had told Davis of complaints about the areas he had cleaned , but had not warned Davis he would be discharged for such conduct . As noted above , the Trial Examiner did not credit Shepard's testimony that Davis was a highly unsatisfactory employee . Further, such complaints did not involve leaving the company premises or any warning for such conduct. CENTRAL POWER & LIGHT CO 289 (c) Offer to Wayne W. Davis immediate and full reinstatement to his former or substantially equiva- lent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of Respondent's discrimination against him. (d) Notify the above-named employee, if presently serving in the Armed Forces of the United States, of his right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Decision. 3. Add the following as the first and second paragraphs of the Appendix: WE WILL offer Wayne W. Davis immediate and full reinstatement to his former or substantially equi- valent position without prejudice to his seniority and other rights and privileges and WE WILL notify Wayne W. Davis, if presently serv- ing in the Armed Forces of the United States, of his right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL make whole Wayne W. Davis for any loss of earnings he may have suffered by reason of the discrimination against him, all in accord with and in the manner set forth in "The Remedy" section of the Decision in this case. A second charge was filed by the Union against the Respondent on November 15, and a first amended charge was filed on December 11. On December 14, a complaint and notice of hearing based on the new charges was issued in Case 23-CA-2885. The General Counsel filed a motion on December 18 asking that Case 23 -CA-2774 be reopened and consolidated with Case 23-CA-2885 as they involved the same parties and the acts and conduct alleged to be unlawful were substantially identical and related and the evidence in one was relevant and germane to the evidence to be adduced in the other. This motion was granted by an order dated January 9, 1968, and the issues in the consolidated proceeding were tried on January 30 and 31, 1968, in Corpus Christi, Texas. Upon the entire record in this case , including my evaluation of the testimony of the witnesses based on my observation of their demeanor and on the relevant evidence, I make the following FINDINGS OF FACT I JURISDICTIONAL FINDINGS The Respondent is a Texas corporation engaged in the business of generating , selling and distributing electricity. Respondent maintains its principal office in Corpus Christi, Texas. During the past 12 months , the Respondent, in the course and conduct of its business operations , purchased, for use in its Texas generating plant, goods and materials valued in excess of $50,000 from concerns located in states other than the State of Texas. During a similar period the Respondent, in the course of its business operations , received gross revenues in excess of $250,000. On the basis of the above, I find that the Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GORDON J. MYATT, Trial Examiner Upon a charge filed July 24, 1967,1 by International Brotherhood of Electrical Workers, AFL-CIO (hereinafter called the Union), a com- plaint and notice of hearing was issued in Case 23-CA-2774 on September 13. The complaint alleged that Central Power & Light Company (hereinafter called the Respondent), by its agents and supervisors, threatened employees with loss of their jobs because they engaged in activities on behalf of the Union, and created an impression of surveillance of union meetings. The complaint also alleged that the Respondent discharged employee Wayne Davis on May 23, because he had engaged in activities on behalf of the Union. This case was tried on November 1, in Corpus Christi, Texas.2 I Unless otherwise indicated , all dates herein refer to 1967. 2 At the conclusion of his case , counsel for the General Counsel agreed that there was no evidence in the record to support the allegation of creating an impression of surveillance. Accordingly , this aspect of the case was dismissed International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Effect of the Consolidation The threshold issue in this consolidated proceeding involves a procedural question concerning the effect of the consolida- tion upon the allegations of both complaints as amended during the course of the reopened trial. As previously indicated, the complaint in Case 23-CA-2774 is based on a charge filed July 24, 1967. The events which are alleged to be violations in that complaint occurred in May of that year, and are well within the 6-month limitation period imposed by Section 10(b) of the Act.3 On November 15, 1967, the Union 3 The relevant portion of that Section states .. no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made . 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed a second charge against the Respondent alleging violations of identical sections of the Act, but involving other employees The second charge was filed after the trial in the first case but before a decision had been issued. The second charge was subsequently amended on December 11, and a complaint (23-CA-2885), based on the amended charge, was issued on December 14. On December 18, counsel for the General Counsel filed a motion, subsequently granted over the Re- spondent's objections, to reopen the original case and consoli- date both complaints in one proceeding At the reopened trial, counsel for the General Counsel then moved to amend the complaint in Case 23-CA-2885 to include allegations of unlawful conduct which purportedly occurred in March, April and May 1967 4 The Respondent vigorously objected, primarily on the ground that the amend- ments related to events which, even if true, occurred more than 6 months prior to the filing of the charge in Case 23-CA-2885 I allowed the amendments to the complaint and received evidence thereon, subject to a ruling on the 10(b) question in my decision.5 After the ruling on the amendments, counsel for the General Counsel also moved to make the amendments a part of the original complaint in Case 23-CA- 2774. This latter motion was denied Without question, the General Counsel could have elected, in conjunction with his motion to reopen Case 23-CA-2774, to have included the matters contained in the second charge by way of an amendment to the original complaint. Had this been done, the events which occurred subsequent to the filing of the first charge would have been properly included in the complaint, N.L.R B. v. Fant Milling Co , 360 U.S. 301, Philip Carey Mfg, Co., v. N.L.R.B., 331 F.2d 720 (C.A. 6), and the events alleged to have occurred in March, April and May, would have been within the scope of the complaint under the "relation back" doctrine as applied to the original charge. NLRB v Gaynor News Co., 197 F 2d 719, affd. 347 U.S 17. See also Exber Inc. v. N.L R.B., 390 F.2d 127 (C.A 9). In my judgment, a different result is not warranted merely because the General Counsel chose to issue a separate complaint which was subsequently consolidated with the original. The consoli- dation of the two complaints made the entire proceeding one for purposes of trial and decision; just as if the General Counsel had issued one consolidated complaint embracing both charges. The acts and conduct alleged to be unlawful arise out of the same organizing campaign conducted among the Respondent's employees and are clearly related. Had a single consolidated complaint issued, the general language of the charge in Case 23-CA-2774, which states that the Respon- dent "by other acts and conduct ... interfered with, restrained and coerced its employees," would have been adequate to support the amendments made at the hearing without fear of 4 The General Counsel made the representation that the matters contained in the amended allegations only came to his attention the night before the trial was scheduled to resume 5 At the time of the trial , the Respondent was afforded an opportunity to request a continuance in the event that it was deemed necessary in order to prepare a defense to the new matter presented by the amendments . The Respondent determined that a continuance was not needed , and defended on all issues without waiving its objections to the amendments 6 In addition to this document , other written communications were sent to the employees by Lacey and other high level company officials between January and September 1967 The communications set out the Respondent 's opposition to the Union , extolled the advantages that the violating the 6-month limitation period. To hold that the amendments are now barred, after the separate complaints have been consolidated, is illogical. Therefore, I find that the amended 8(a)(1) allegations are properly included as a part of the complaint in Case 23-CA-2885 in the consolidated proceedings Fremont Hotel, Inc, 162 NLRB No. 67. B The Substantive Charges 1. The ban on union activities on the job While the record does not indicate the exact date that the Union began its campaign to organize the Respondent's employees, it is clear that the Respondent's officials became aware of this effort at least by January 27, 1967. A. L Lacey, district manager for the Corpus Christi district, addressed a written communication (General Counsel's Exhibit No. 103) to all of the employees on the line and service crews, advising them that the Respondent had learned that some of the employees had recently attended a meeting held by the Union.6 Some time in the early spring, McDougal, then distribution superintendent, met with the line and service foremen and instructed them to speak to the members of their crews about engaging in union activity on the job. As a result of this meeting, each foreman had a conference with his crew and passed on McDougal's instructions Employee Uhlenhaker testified that his foreman, Mersiosky, spoke to the full crew during a "tail gate conference"7 in the first part of April. According to Uhlenhaker, Mersiosky informed the employees that the Respondent had a meeting of the foremen and they in turn were instructed to tell the employees that there was to be no discussion about the Union between the hours of 8 a m. and 5 p.m. Employee Richardson, an apprentice lineman, worked on Foreman Smith's crew Richardson testified that Smith informed the employees that the Respondent knew they wanted to organize and that he was telling them not to sign or pass out [union cards] or "talk about union activity" during working hours or on the job or on company premises Richardson stated that Smith indicated that if these instruc- tions were not followed, "firmer steps would be taken against this action." Employee John Smith, a member of Foreman Farquhar's crew, testified that Farquhar told the employees during a tail gate conference that he had been instructed to advise them that union activity on the job or on company premises between the hours of 8 a.m. and 5 p in , would no longer be tolerated. He also stated that anyone trying to get a union card signed or caught with a card between those hours would be dismissed or suspended.8 Smith also testified that on one occasion in April, while his employees enjoyed without benefit of union representation, and cited what the Respondent believed to be the disadvantages of membership in a union. The General Counsel introduced these documents in evidence to indicate the Respondent 's avowed opposition to the Union , but made no contention that these communications, in and of themselves, constituted separate violations of the Act 7 The foreman of the line construction crews normally held such conferences with their men upon first arriving at a jobsite. The conferences were primarily for the purpose of assigning duties and outlining the particular specifications of the job to be performed 8 Mersiosky, Smith, and Farquhar were witnesses during the trial. Each confirmed that they spoke with the members of their crew about engaging in union activities during working hours. CENTRAL POWER & LIGHT CO 291 crew was working on a job along with the crew of Foreman Strzinek, he sought to initiate a discussion concerning the Union with other employees during their lunch hour. Accord- mg to Smith, Strzinek stated that he (Smith) was being paid a dollar by the Company for his lunch and that he was on company time Smith did not pursue the matter at that time, but he did engage in a discussion about the Union with a fellow lineman later during the lunch hour. Smith also testified that on June 20, while he and Farquhar were traveling to a jobsite, Farquhar asked him how the union meeting went the night before.9 According to Smith, Farquhar asked why the employees had a Mexican-American organizing them instead of a white man? Smith testified that Farquhar stated that he hoped the employees knew what they were doing, and that there were some "stool pigeons" attending the union meetings According to Smith, Farquhar informed him that Collins (vice president) and Lacey (district manager) knew everything that went on at the meetings, and knew who attended and what was said.' 0 2. The events surrounding the discharge of Davis Davis had been employed as a janitor by the Respondent for approximately 11 years at the time that the organizing campaign began After receiving a letter sent by the Union to all of the Respondent's employees on April 6, Davis sought out the union representative, Villarreal, at a local motel and signed a card for the Union.' 1 On May 5, Davis and the other members of the janitorial crew were seated in what is described as the "coffee room" waiting for the office personnel to leave so that they could begin their work.' 2 Mays, the head janitor, was with the employees on this occasion. The conversation centered around the contents of the letter received from the Union Davis made the statement that he thought the Union was a good thing and that the employees would be unionized shortly and it would be better for them. Davis stated that the Union would give the employees dignity and they would not be fired or misused because they were not liked personally. Another employee, Crawford, had worked at a unionized plant in the past. He stated that a union would give the employees job protection, job classifications, and a chance to transfer to other jobs. Mays told the employees that he was not in favor of a union and that the Respondent did not want a union. He also informed them that it would be unwise to talk about the Union in the building, and that he had seen booklets on the desks of company officials entitled, "What to do When the Union Comes."1 3 The testimony is conflicting concerning the actual events which occurred on the evening of Davis' discharge. Davis testified that he had held a second job as a janitor at the Corpus Christi Yacht Club since 1961. Tuesday afternoon, May 23, while on his way to work, Davis picked up some janitorial supplies from a local store for use at the yacht club He stated that at approximately 9 05 p in., during his lunch break, he left the Respondent's premises and drove over to the yacht club which was a few blocks away. Davis stated that he went to the club, which was closed on Tuesday evenings, to unload the supplies because on past occasions bottles had broken in his car. He made several trips into the club with the supplies, and at approximately 9 30, drove back to the Respondent's parking lot. There he was met by Mays who asked him where he had been. Davis stated that he told Mays he had been to the yacht club and Mays replied, "That ain't no business " While he was talking to Mays at the entrance to the building, the building service superintendent, Shepard, drove into the lot and told Mays and Davis to come into his office. Davis testified that Shepard asked him where he had been and he replied to the yacht club. Shepard then asked Davis if he had done any work while at the yacht club to which Davis replied that he had not. Shepard then instructed Davis to turn in his keys14 and told him he could keep the job at the yacht club and fired him. When questioned about a rule against the janitors leaving the building without permission between 5 p.m. and 1 a.m., Davis stated that it was his understanding that the employees were not to leave without first securing permission from Mays, except during their lunch hour which lasted from 9 to 9 30 p.m. According to Davis, other janitors left the building after 5 p.m. for various reasons, and he had done so on numerous occasions in the past during his lunch hour without being reprimanded. After his discharge, Davis attempted to persuade several higher company officials to rescind Shepard's decision. These attempts proved unsuccessful and the discharge was upheld. Freddy Jordon, a janitor, testified as a witness on behalf of the Respondent. Jordon claimed that Davis was the only employee to ever leave the building without permission, and that for more than a year Davis would "sneak out" at approximately 8 50 p.m and return 1 hour later. Jordon subsequently admitted on cross-examination that he had no personal knowledge of the fact that Davis left without permission, but that his statement was based on information given him by Mays the night that Davis was discharged. Jordon also admitted on cross-examination that his statement that the other employees always asked permission to leave was simply 9 Smith had mentioned previously to Farquhar that there would be a meeting 10 Although Farquhar denied the statements attributed to him by Smith, I do not credit him in this regard Farquhar 's testimony was generally vague except in those instances where he specifically denied engaging in certain conduct Furthermore , he appeared inclined to deny occurrences which the testimony of others reveal to have actually taken place For example , he denied holding a conference on union activities with the members of his crew ; yet he acknowledged on cross- examination that he had been instructed to do so by McDougal, and the testimony of the other foremen establish that such conferences were held Accordingly, I place no reliance upon Farquhar 's testimony where it is in conflict with the testimony of others. 11 Davis was the only janitor to sign a card , and there is nothing in the record to indicate that any of his fellow employees or his supervisors were aware that he had done so 12 The janitorial employees on the evening crew reported to work at 5 p.m., but did not begin their actual duties until after the building was emptied at 5.30. The janitors were scheduled to work, howev er, from 5 p.m. until I a.m. 13 The above is a synthesis of the credited testimony of employees Davis, Hall and Crawford Mays, a witness at the reopened hearing, did not testify concerning this conversation 14 The janitors were issued two keys upon reporting to work each day. One key unlocked the door leading to the floor that each was responsible for cleaning , and the other unlocked the outside door leading into the building. At the end of the workday the janitors were required to turn in these keys . After Davis' discharge , the outside key was not given to the men. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD based on his belief that they were "the type of guys who would." Jordan testified that on May 9, Davis came down to the first floor where he was working and took his (Jordon's) Hoover vacuum cleaner and left the building. According to Jordon, Davis did not return until 10 p.m. Jordon alleges that he told Davis at that time that he knew that Davis had been over to the yacht club. He states that Davis asked hun to keep it a secret between the two of them. Several days later Jordon went up to the floor where Davis was working and watched television in one of the offices. While there, Jordon used one of the ashtrays and failed to empty it. Later the occupant of the office questioned Davis about the dirty ashtray and Davis informed him that Jordon was there watching television. Jordon was subsequently called in and reprimanded That same day Jordon reported to Mays that Davis had left the building some 4 days earlier with "his Hoover." Jordon also testified that on May 23, the date that Davis was discharged, Davis had again taken his vacuum cleaner when he went to the yacht club. Shepard testified that he was parked in the Respondent's lot on May 23, when Davis left the building According to Shepard, Davis left at approximately 8 52 p.m. Shepard claimed that he was checking on Davis because he had received information that Davis had been leaving the building without permission. Shepard testified that he followed Davis to the yacht club and parked in the driveway where he could observe him. He states that he did not see Davis take any supplies into the club, but that he observed him placing an object in his car and he saw him sweeping down a stairway Shepard remained parked in the driveway until Davis left at approximately 9:29 p.m. and then he circled the block and returned to the Respondent's parking lot, where Davis was talking to Mays. According to Shepard, he asked Davis where he had been and was told that he had taken supplies over to the yacht club. Shepard states that he informed Davis that he saw him cleaning up and thus he was working for another employer on the Respondent's time. It was for this reason that he fired Davis. According to Shepard, this was not the first time that he had followed Davis when he had left the Respondent's premises. He states that he had followed him approximately 3 years ago but did not fire or reprimand Davis for this violation because he was not instructed to do so. Shepard acknowledged that he was not instructed to fire Davis on May 23, but he felt that this action was warranted. Shepard also testified that Davis was a poor worker-"one of the worst [he had] ever seen." He stated that Davis' attitude and indifference also contributed toward his decision to discharge him. According to Shepard, Davis refused to join the other employees for lunch, refused to "cooperate" and he ate at the desks and generally left a mess. Shepard acknowledged, however, that Davis had received periodic pay increases during the time that he was employed and that he, Shepard, had to initiate or express an opinion on each pay raise given an employee under his supervision 3. The reprimand of Uhlenhaker The week after June 10, Mersiosky's crew was working at a location on the waterfront. The job involved changing an installation from six to four wires. Because this entailed changing the connections at the meter box and switch installation as well as making changes on the power lines, a service crew was working with the line construction crew. Uhlenhaker,15 a lineman, was up on a pole making the necessary changeover there while Knox, a serviceman, was making the conversion at the meter box and switch on the ground Uhlenhaker came down from the pole while Knox was making the connections at the meter box, and asked how he and the other service employees felt about the Union? Knox testified that the line running from the pole to the meter box was "hot" at the time because it was necessary for him to check the motor rotation in order to make the proper connections. Knox stated that in response to Uhlenhaker's question, he said that he did not need a union to talk for him and he could talk for himself, but that he had not made up his nand about the Union. According to Knox, Uhlenhaker then accused him of being a "fence rider" and told him that he had to "get in or get out or be knocked off the fence." Both employees became very angry and raised their voices during the conversation. Knox stated that after he made the connec- tions, he gathered his tools and left. Uhlenhaker acknowledged that he had a heated discussion with Knox at that time, but that it was Knox who stated he was on the fence concerning the Union. Uhlenhaker testified that he then told Knox "there was no fence" and "sooner or later you're going to get pushed off." He also testified that the power in the line had been "killed" before he climbed down from the pole. The following day Knox complained to his foreman, Masur, about being approached on the job by Uhlenhaker. Masur in turn reported the matter to the service manager with the recommendation that Respondent take some action to prevent friction between the employees over the Union. As a result of this, Lacey sent the following letter to Uhlenhaker on June 27 We continue to receive reports that you are bothering employees on Company property and on Company time, thus hindering them in the performance of their normal duties in your effort to coerce them into signing a union authorization card. By so doing you are interfering with the work and the efficiency of the Company and such action cannot be tolerated. Your continuance of such activity may subject you to disciplinary action. After he received the letter, Uhlenhaker checked with his foreman and his fellow crew members to determine if they had voiced any complaints against him. Upon receiving assurances that they had not, he then drafted a letter to this effect with the intention of having Mersiosky and the crew members sign it. Mersiosky, however, suggested that there was a better way to handle the matter, and he and Uhlenhaker went to Glenn Smith, now distribution superintendent, to inquire about the warning letter. Smith promised to look into the matter and contact Uhlenhaker later. Approximately 6 weeks later Smith and Rowe came to the jobsite where Uhlenhaker had just completed his work and transported him in a company car to the next job. Rowe told Uhlenhaker that the warning letter was sent because of information which the Respondent had received from a "good source " There was no further discus- sion concerning the warning which was issued to Uhlenhaker, 15 Uhlenhaker was an active adherent of the Union. He had attended six or eight meetings with union representatives , and he had solicited signatures for authorization cards from fellow employees CENTRAL POWER & LIGHT CO 293 but there was a general discussion concerning Uhlenhaker's overall attitude. Rowe told Uhlenhaker that the Respondent's officials had no complaints about his work, but that he had the reputation of being "the number one company bitcher." Rowe suggested to Uhlenhaker that if he would change his attitude he could advance further in the Company. 4. Additional allegations of interference and restraint Eddie Brooks, a former employee,16 testified concerning a conversation he had with Spurgeon Mays in September. According to Brooks, he initiated the conversation with Mays on September 28. He asked why a company the size of the Respondent did not have and did not want a union? Brooks testified that he was told by Mays that the Respondent was not unionized mainly because the executives did not want a union and further that they did not want the employees talking about a umon. He stated that Mays told him he could feel free to discuss the Union with any of his supervisors but that he would have to go through the normal chain of command. Brooks also testified that Mays stated that if the employees were unionized, it would not benefit them in terms of their take-home pay because they would have to pay union dues. Further that the cost of the present insurance plan would probably increase, and the Company might discontinue the practice of giving employees discounts on electrical appliances. Mays on the other hand testified that the conversation was initiated by Brooks who volunteered the information that he had been approached by a union representative, but was not interested. Mays denied stating that insurance costs would increase and discounts on appliances would be stopped He further denied telling Brooks that employees could not talk about the Union. C. Concluding Findings A prohibition against soliciting or engaging in any form of union activities while on the job and on company property during working hours is presumptively valid unless promul- gated or enforced for discriminatory purposes. Serv-Air, Inc., 161 NLRB No. 17, Pepsi-Cola Bottlers of Miami, Inc., 155 NLRB 527, 528; Ward Manufacturing, Inc., 152 NLRB 1270, 1271; Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F.2d 177. The facts here, however, leave little doubt that the Respondent instituted its ban against all forms of union activity by employees on the job solely for the purpose of defeating the Union's efforts to organize the employees. The ban related only to union activity and did not include solicitations or activities for other purposes. The rule was interpreted and enforced in such a stringent manner that it even encompassed the employees' lunch hours. Thus, in April, when employee Smith sought to initiate a conversation about the Union with his coworkers during lunch, Foreman Strzinek bluntly reminded him that he was on company time and was receiving a dollar from the Company for his lunch. The clear meaning to be derived from this warning was that employees were not allowed to discuss union matters or engage in any activities concerning the Union at any time between the hours 16 Brooks was a janitor working under Mays at the time. He left the Respondent's employ on September 29 of 8 a.m. and 5 p.m. The coercive impact of this broad and sweeping ban against union activity is further accentuated when one considers that the employees must spend a great deal of time traveling to and from jobsites in company vehicles. Thus, the prohibition as enforced by the Respondent pre- vented the employees from engaging in union activities even when they were not actively performing work, although they were on company time. Therefore, I find and conclude that the Respondent's rule prohibiting employees from engaging in any form of union activity on the job while on company time and on company property was promulgated and enforced for discriminatory purposes. I further find that the rule invoked for this reason is invalid and that it violates Section 8(a)(1) of the Act. Serv-Air, Inc., supra, Pepsi-Cola Bottlers of Miami, Inc., supra. Normally, the warning letter sent to Uhlenhaker because of his breach of the unlawful no-solicitation-no-distribution rule would be considered a violation of the Act without any extended discussion. Because of the circumstances surrounding the incident, however, I am of the opinion that further explication is necessary Uhlenhaker started discussing the Union with Knox at the waterfront jobsite when the latter employee was busily engaged in wiring the meter box and switch installation. Whether the line running from the pole to the box was "hot" as Knox indicated, or whether the power was turned off as Uhlenhaker stated, is of no consequence here. The fact remains that Knox was performing his work in a potentially hazardous situation. Even if the power was off at that time, it was essential that the connections be made properly in order to avoid possible damage to the installation or injury to persons in the vicinity when the power was subsequently turned on. Thus, the danger brought about by Uhlenhaker's interference with Know in these circumstances was very real, and the incident was one about which the Respondent could justly complain. The warning letter, however, did not address itself to that specific incident. Rather, it was couched in terms of Uhlen- haker's continuous violation of the Respondent's unlawful ban on all forms of union activity. I am constrained to find, in these circumstances, that the warning issued to Uhlenhaker was no more than an extention of the unlawful purpose of the rule, and that it indicated that the Respondent intended to insist upon strict' enforcement thereof Pepsi-Cola Bottlers of Miami, Inc., supra. For this reason I find that the Respondent's warning to Uhlenhaker violated Section 8(a)(1) and (3) of the Act. The complaint also alleges that the statements made by Foreman Farquhar to employee Smith on June 20, created an impression that the Respondent was keeping the union meetings under surveillance. I find merit to this contention. Farquhar told Smith that he hoped the employees knew what they were doing, and that top company officials knew, through informers, who attended the union meetings and what was said there. Although the statements were not made in an atmosphere of hostility, Farquhar's comments clearly implied that the Respondent's active opposition to the Union's organizing effort included surveillance of the employees' union activities. While Farquhar's statements had no discernible effect on Smith, disclosures of this nature restrain and interfere with the right of employees to self-organization. Gal Tex Hotel Corporation, 164 NLRB No. 70,N.L.R.B v. Prince Macaroni Mfg Co , 329 F.2d 803 (C.A. 1). 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The discharge of Wayne Davis presents a close question. Davis was the only janitorial employee to sign a card for the Union. By his own account, no one-neither his coworkers nor his supervisors-knew that he had done so. Nor did he engage in any other activity on behalf of the Union. During the discussion among the janitors and Mays on May 5, Davis did take a positive stand in favor of the Union. He expressed the opinion that he thought the employees would become union- ized, and that the Union would give them dignity and protect them from abuses caused by personal dislike The record reveals, however, that Davis was not the only employee to express a view favorable to the Union during this discussion. Crawford, who once worked at a plant which was unionized, told of some of the benefits he thought would result from union representation, such as job protection, job classification, and the opportunity to transfer to other jobs in the Company. Although the circumstances surrounding Davis' discharge can only be viewed with deep suspicion, the record here will not sustain a finding that he was discharged because of his support of the Union. It is abundantly clear that Mays and Shepard were waiting for Davis to leave the building during his lunch hour, and that they were prepared to discharge him once he did so. While one may be justifiably outraged at the manner in which this was accomplished, it is necessary, nonetheless, to establish some causal connection, beyond mere suspicion, between the discharge of Davis and his stand in favor of the Union. In my judgment, the proof fails in this respect. 17 Accordingly, on the basis of the record before me, I reluctantly conclude that the General Counsel has not estab- lished by a preponderance of the evidence that Wayne Davis was discharged for discriminatory reasons cognizable under this Act. I am constrained therefore to recommend that the allegations relating to the discharge of Davis be dismissed in their entirety. It also alleged that statements made by Mays to the employees under his supervision on May 5, constitute a separate violation of the Act. The undisputed evidence discloses that Mays informed the janitors that the Respondent did not want a union and did not want the employees discussing the Union. Although Mays testified at the reopened trial that he did not attend the meeting of the foremen held by McDougal, it is reasonable to conclude that he was aware of the Respondent's ban on all union activity and discussions on company time and on company property. His statements to the employees on May 5 were consistent with this policy. I find, therefore, that Mays' statements interfered with and restrained the employees in the exercise of their right to self- organization, and that the Respondent violated Section 8(a)(1) of the Act by this conduct Brooks, a former employee, credibly testified that on September 28, Mays told him not only that the Respondent's executives did not want a union and did not want the employees talking about a union, but also that the employees' share of the cost of the insurance provided by the Company would increase and discounts which the Respondent allowed on appliances would be discontinued if the Union became their representative. Although Mays denied making these state- ments, I do not credit him in this regard. His comments were in keeping with the general pattern of unlawful conduct engaged in by the Respondent's supervisors in order to defeat the Union's efforts to organize the employees. Accordingly, I find that by the statements of Head Janitor Mays to employee Brooks on September 28, the Respondent further violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Respondent, Central Power & Light Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 International Brotherhood of Electrical Workers, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By invoking and enforcing a rule, for discriminatory purposes, prohibiting employees from soliciting on behalf of the Union or engaging in any union activity while on company time or property, or on the job, the Respondent restrained and coerced employees in the exercise of their legitimate rights guaranteed under Section 7 of the Act, and thereby violated Section 8(a)(1) of the Act. 4. By creating an impression that employees were under surveillance while attending union meetings, the Respondent violated Section 8(a)(1) of the Act. 5. By informing employees that if the Union became their representative the Company would no longer grant them discounts on appliances and that the employees' contribution towards the cost of insurance provided by the Respondent would increase, the Respondent interfered, restrained and coerced employees in the exercise of their rights to self- organization and thereby violated Section 8(a)(1) of the Act. 6. By issuing a reprimand to employee Fred Uhlenhaker under color of enforcing an invalid rule prohibiting employees from soliciting on behalf of the Union while on the job or on company premises on company time, the Respondent violated Section 8(a)(1) and (3) of the Act. 7. The Respondent did not violate the Act by discharging employee Wayne Davis on May 23, 1967. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As the unfair labor practices found herein are part of a widespread and pervasive pattern which evinces an attitude of hostility toward the very basic purposes of the Act, I shall recommend a broad 17 In arriving at my conclusion in this regard , I do not in any way rely upon the testimony of Jordon . This witness was obviously biased against Davis , and it was apparent that he harbored a grudge because he had been reprimanded for watching television in an office on the floor where Davis worked . Furthermore , his testimony was replete with incriminating statements about Davis which subsequent close question- ing revealed to be based on his own biased beliefs and on statements made to him by others. Nor do I place any reliance upon Shepard 's testimony that Davis was a highly unsatisfactory employee . Shepard's demeanor while testifying convinces me that he was not the type of person who would tolerate any such conduct from an employee under his supervision for a period of I I years. CENTRAL POWER & LIGHT CO. 295 cease and desist order. N.L.R.B. v. Entwistle Mfg., Co., 120 F.2d 533, 536 (C.A. 4). Accordingly, upon the foregoing findings of fact and conclusions of law, and upon the entire record in this case and pursuant to Section 10(c) of the Act, I hereby issue the following. RECOMMENDED ORDER The Respondent, Central Power & Light Company, its officers, agents, successors, and assigns, shall- 1. Cease and desist from. (a) Informing employees that if they are represented by International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization, that they will no longer receive discounts on appliances and that the cost of their insurance contributions will increase. (b) Threatening employees with reprisals or disciplinary action under color of a rule prohibiting all forms of union activity on the job, invoked and applied for the purpose of restraining and coercing and interfering with the employees in the legitimate exercise of their rights under Section 7 of the Act. (c) Creating an impression that employees are under surveillance when attending union meetings. (d) Discouraging membership in the above-named Union by threatening employees with discharge or other disciplinary action under color of enforcing a rule banning all forms of union activity while on the job, said rule having been promulgated for a discriminatory purpose and applied in a discriminatory manner. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively with representatives of their own choosing, and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities 2. Take the following affirmative action, which I find will effectuate the policies of the Act. (a) Rescind and withdraw from the personnel file of employee Fred Uhlenhaker, the letter of warning sent to that employee under the color of enforcing a rule against union solicitation promulgated for a discriminatory purpose and applied in a discriminatory manner. (b) Rescind and revoke the rule prohibiting the employees from engaging in union solicitation or discussions while on the job or on company time or on company premises, said rule having been invoked and enforced solely for the discriminatory purpose of defeating the Union's organizing campaign. (c) Post at its Corpus Christi, Texas, facility, copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by the official representative of the Respondent shall be posted immediately upon receipt thereof, and shall be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.' 9 IT IS FURTHER RECOMMENDED that the allegation setting forth violations not specifically found herein be dismissed in their entirety. 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 Relations Act, as amended, we hereby notify our employees that: WE WILL NOT, under pretext of enforcing a rule pro- hibiting union solicitation or union discussions on company time or company property, discourage membership in or activities on behalf of International Brotherhood of Elec- trical Workers, AFL-CIO, by threatening to discharge, discipline, or otherwise discriminate against any employee for legitimately engaging in such activity. WE WILL NOT interfere with the right of our employees to join or assist the above-named Union by prohibiting discussions about the Union or prohibiting solicitations on behalf of the Union on company time and property. WE WILL NOT create the impression that we are keeping our employees under surveillance when they attend union meetings. WE WILL rescind any previous instructions given by our foreman to our employees prohibiting them from discussing the Union or engaging in union activities on company time and on company property. WE WILL withdraw our letter of reprimand and warning to Fred Uhlenhaker because such letter was sent under the color of enforcing a discriminatory ban on union activities on company time and property. WE WILL NOT in any other manner interfere with, restrain or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. All of our employees are free to become or refrain from becoming members of the above-named Union, or any other labor organization. CENTRAL POWER & LIGHT COM- PANY (Employer) Dated By (Representative) (Title) 18 If this Recommended Order is adopted by the Board, the words the words "a Decision and Order " "a Decision and Order" shall be substituted for the words "the 19 In the event that this Recommended Order is adopted by the Recommendations of a Trial Examiner" in the notice. If the Board's Board, this provision shall be modified to read: "Notify the Regional Order is enforced by a decree of the United States Court of Appeals, the Director for Region 23, in writing, within 10 days from the date of this notice will be further amended by the substitution of the words "a Order, what steps Respondent has taken to comply herewith." Decree of the United States Court of Appeals Enforcing an Order" for 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This Notice must remain posted for 60 consecutive days compliance with its provisions, they may communicate direct- from the date of posting, and must not be altered, defaced, or ly with the Board's Regional Office, 6617 Federal Office covered by any other material. Building, 515 Rusk Avenue, Houston, Texas 77002 (Tel. If employees have any question concerning this Notice or 228-4296).