Savannah Electric and Power Co.

754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Savannah Electric and Power Company and Office and Professional Employees International Union, Local 455, AFL-CIO. Case 10-CA-9003 June 20, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On March 21, 1972, Trial Examiner George Powell issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions, only to the extent consistent herewith. The Trial Examiner found that Respondent violat- ed Section 8(a)(3) of the Act by discharging Janet Gibbs, a 6-month probationary employee, on De- cember 21, 1970.2 We do not agree. It is well-settled that union membership or activi- ties do not immunize an employee against discharge. Management can discharge for good cause, or bad cause, or no cause at all.3 But, employees may not be discharged when the real motivating purpose is to discourage union membership or activity. With discharge of employees as a normal, lawful, legitimate exercise of the prerogative of management, the fact of discharge creates no presumption, nor does it furnish the inference that an illegal-not a proper-motive was its cause. An unlawful purpose is not lightly to be inferred. In the choice between lawful and unlawful motive, the General Counsel must prove by a preponderance of the evidence that Respondent's was an unlawful one. In this case we find that the record falls short for the following reasons. Gibbs' participation in union activities was unex- ceptional. She was not a union officer, committee member, or leader. She had not voted in the representation election in June that led to the Union's certification. Her union activities were confined solely to joining the Union the night of September 24 and participating in the Union's picket m The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 line with about 64 other employees from September 25 to October 12. Although about 65 employees out of the approxi- mately 110 bargaining unit employees participated in the strike, there is no evidence that any of them were subsequently discharged. In fact, the record shows that at least one other striking probationary employ- ee was still employed by Respondent at the time of the hearing. Furthermore, subsequent to Gibbs' discharge, but before the Union's charge herein, Respondent fired an antiunion employee who had crossed the picket line of the Union. In addition, contrary to the Trial Examiner, we find insufficient evidence of union animus from which an improper motive might be inferred. The Trial Examiner drew such inference from the facts that, subsequent to the strike, Respondent notified the Union that for economic reasons the meter readers would no longer be allowed to drive Respondent's cars home at night as they had done before, but had to leave them on the parking lot; Respondent stopped the practice of coffee-drinking at the work station of the employees in Customer Accounting on the grounds that it might mess up the keypunch cards; Respondent changed the job loca- tion of two employees to their physical discomfort if not harm; and Respondent informed the Union that negotiations had to be held after hours or the employees would have their pay docked. However, the new practices concerning automo- biles and coffee-drinking applied to all meter readers and all Customer Accounting employees and, as a substantial number of employees did not go on strike, a tougher policy by the Respondent after the strike affected antiunion as well as prounion employ- ees. Indeed, Respondent's business reasons for discontinuing its previous practices in these regards were, uncontradicted. In addition, there is noeviden'ce that one of the two employees said to have been discriminatorily moved actually participated in the strike; neither of these employees testified that he had been discriminated against; and there is no evidence that Respondent was aware that either employee had medical reasons for remaining in his previous job location, or that either employee had complained to Respondent about the move. With regard to negotiating after hours, the record is clear that negotiations between the Union and Respon- dent had ended before the strike with the execution of a contract between the parties on October 12. In any event, even assuming that the term "negotia- F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings. 2 All dates hereinafter are in 1970 unless otherwise stated 3 N L R.B. v Blue Bell, Inc, 219 F 2d 796 (C.A. 5), N L R B v C & J Camp, Inc, 216 F 2d 113 (C.A. 5). 197 NLRB No. 118 SAVANNAH ELECTRIC AND POWER CO. tions" referred to grievance meetings between Re- spondent and the Union, the contract clearly provides that the Company will pay employees for time lost from their regular scheduled work while attending grievance meetings. Finally, the record shows no history of antiunion conduct on the part of Respondent. Before the advent of the Union, Respondent had recognized for 27 years the Independent Organization of Employees of Savannah Electric and Power Company as the representative of its office employees. It has also had a contractual relationship with the International Brotherhood of Electrical Workers. The record does not disclose that there have ever been any unfair labor practice cases involving the Respondent. In view of the foregoing, we conclude that the General Counsel has not proved by a preponderance of the evidence that Respondent by discharging Gibbs violated Section 8(a)(3) and (1) of the Act. Accordingly, we shall order that this portion of the complaint be dismissed. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that Respondent, Savannah Electric and Power Company, Savannah, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Limiting the right of its employees to freely engage in union activities in its lunchroom while on their own time, and threatening them with suspen- sions if the rule is violated. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its Savannah, Georgia, place of business, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure 755 that said notices are not altered, defaced or covered by any other material. (b) Notify the said Regional Director, in writing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith. 4 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we have violated the law and has ordered us to post this notice. WE WILL NOT prohibit employees from engag- ing in union activities on company property during their own time. WE WILL NOT threaten to suspend them from engaging in union activities on company property on their own time. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. You are free to become and remain members of the Office and Professional Employees International Union, Local 455, AFL-CIO, or any other labor organization. SAVANNAH ELECTRIC AND POWER COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Peachtree Building, Room 701, 730 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peachtree Street, N.E., Atlanta, Georgia 30308, Telephone 404-526-5760. TRIAL EXAMINER'S DECISION I. PRELIMINARY STATEMENT GEORGE POWELL, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151 et seq., herein called the Act, based on a Complaint and Notice of Hearing issued by the Regional Director for Region 10 of the National Labor Relations Board (Board) on August 17, 1971, founded upon a charge filed by the above Union on May 24, 1971, was tried before me in Savannah, Georgia, on October 12 and 13, 1971, with all parties participating throughout by counsel. Briefs of the parties were filed on November 22, 1971, pursuant to time extended on Respondent's application. Those briefs, together with the entire record as made at the trial, have been carefully considered. The issues presented apse from an allegation that the manager of general accounting, E. Olin Veale, prohibited Respondent's employees from discussing the Union in working areas of its office during nonworking time; the alleged discriminatory discharge of employee Janet Gibbs; and an alleged refusal to bargain in good faith with the Union as the majority representative of the employees by unilaterally contracting out meter-reading work; all in violation of Section 8(a)(1), (3), and (5), respectively, and Section 2(6) and (7) of the Act. In its duly filed answer, Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practices.[ Upon the entire record, my observation of the witnesses as they testified, and the briefs filed by Respondent and General Counsel, I find, for the reasons set forth hereafter, that the General Counsel has established by a preponder- ance of the evidence that Respondent discriminatorily discharged Janet Gibbs in violation of Section 8(a)(3) and (1), and independently violated Section 8(a) on April 1, 1971, when E. Olin Veale promulgated an unlawful no- solicitation rule. I also find that Respondent did not refuse to bargain in good faith as alleged in the complaint. FINDINGS AND CONCLUSIONS It. PARTIES; JURISDICTION Respondent, Savannah Electric and Power Company, is a Georgia corporation having its principal place of business at Savannah, Georgia, where it is engaged in the manufacture and sale of electric power and electrical appliances. Respondent purchases and imports products valued in excess of $50,000 annually directly from suppliers located outside the State of Georgia. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I also find that the Union, Office and Professional Employees International Union, Local 455, AFL-CIO, is a I One other allegation of violation of Sec 8(a)(l) of the Act contained in par. 7 of the complaint was dismissed from the bench on failure of proof, labor organization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES For approximately 25 years immediately before July 1970, the office employees' bargaining unit at Respondent was represented by the Independent Organization of Employees of Savannah Electric and Power Company, herein called Independent. During this time, James P. Kavanaugh had served several times as its president. In 1970 at a Board election the Union took the right to represent the same employees from the Independent and on July 1, 1970, it was duly certified to represent the bargaining unit. At this time in 1970, Kavanaugh was the manager of customer accounting and was an admitted supervisor. A. Janet Gibbs Janet Gibbs had first been hired by Respondent, on September 9, 1969, while yet in high school as a part-time employee working 4 days a week from I to 5 p.m. under a Vocational Office Training (VOT) Program with her high school. During the school year in which she had worked in the program, Kavanaugh had graded her excellent in all categories on the form sent him by the school and on December 1, 1969, he gave her a raise in pay. In the spring of 1970, he asked her if she would like a full-time job upon graduation and marriage (she was planning a June wedding). Thereafter, on June 6, 1970, Gibbs was married (her maiden name was Watters); the next day (June 7) she graduated from high school, and 8 days later on June 15, 1970, she was hired as a full-time employee in customer accounting where she had been working as a part-time employee. Thus, she began work about 2 weeks before the Union replaced the Independent as the bargaining agent and about 1 month before the Union commenced bargaining with Respondent on July 15, 1970. Gibbs' work was "okay" through the middle of July, testified Kavanaugh, and as to her attitude, "she would come in, be very quiet, mind her own business and do her work. It was very good." But, according to Kavanaugh, from the latter part of July or the first part of August, her attitude and work deteriorated. He testified that he received an evaluation on July 29, 1970, from employee Williams, who had been assigned the job of training Gibbs on the service order desk, to the effect that Gibbs was "being very careless, very sloppy ... seemed to lack any interest in the job . . . [and] showed little concern for errors." Kavanaugh did not talk to Gibbs about this "evaluation" nor did he show it to her but he did call both Gibbs and another employee, Mary Beth Audrey (who had been employed months before Gibbs) to a meeting on August 4 with him and his assistant, Mrs. Cosnahan, and another employee, Mrs. Nease. Williams was not called to the meeting. At this meeting, according to Kavanaugh's testimony, he told Gibbs that "we were not quite satisfied with her and no longer is an issue. SAVANNAH ELECTRIC AND POWER CO. performance but thought that it was possible some of it was due to poor training. And we planned to retrain her, using Mrs. Nease as the instructor." Mrs. Nease was "to start from scratch" and retrain Gibbs. Mrs. Cosnahan, his assistant, corroborated Kavanaugh. Mrs. Nease did not testify. Gibbs' testimony was somewhat contradictory. Gibbs' testimony on this point is as follows: Q. Prior to the strike had Mr. Kavanaugh ever talked to you or anyone else in your presence about your work? A. Well, at one time he called another girl in the office who was also on a service order desk. He called us into the office and told us that he thought that we needed to be retrained and this was no fault of ours. But that we had not been properly trained. And that he himself would retrain us. Mary Beth Audrey was the other girl referred to in Gibbs' testimony. On cross-examination, Gibbs was more emphat- ic testifying that Kavanaugh "did not assign Betty Nease to either Mary Beth or me. She [Mrs. Nease] did not work with me in the daytime to train me on my.job. She worked overtime to help us catch up with the service orders that were there. There were too many according to Mr. Kavanaugh because we weren't properly trained. And she worked with us to help us catch the service orders up." Audrey did not testify. Gibbs demeanor convinced me that her testimony should be credited over that of Kavanaugh and his assistant. She testified quietly in a clear firm voice with well-ordered words and in a concise manner . Her attitude was cool and impersonal. I was impressed by her attitude as was Kavanaugh who testified that, at least through the middle of July 1970, "she would come in, be very quiet, mind her own business and do her work." Accordingly, I find Gibbs was not told in this August meeting that her performance was not satisfactory nor was she told that Nease would retrain her. I find she was told she and Audrey would be retrained through no fault of theirs and that Kavanaugh would retrain her. As to the so-called "evaluation," under all the circumstances including the facts that not all of the questions in the "evaluation" by Williams had been answered; that Williams was the one who inadequately trained Gibbs and she -never testified to the authenticity of the "evaluation"; that Gibbs had never been informed of it or its contents; that there is no credited evidence that "evaluations" were made in the regular course of business (Kavanaugh being not credited) and hence it is hearsay and not reliable, I find no clear evidence of complaint as to Gibbs' work or attitude up to August 4, 1970.2 Kavanaugh testified that in early August he spoke to Gibbs about a water heater service bill of $1,002 he claimed she verified before it was sent out when the bill should have been for only $2. She asked to see the bill as "we did put our initials on these service orders," but he did not show it to her at that time or later on. Respondent's attorney asked Kavanaugh if Gibbs "seemed concerned that this error had been made" to which Kavanaugh answered, "No, she did not." Inasmuch as an "error" due 2 Kavanaugh admitted on cross-examination that he only reprimanded 757 to Gibbs' performance had not been established, I can well imagine her lack of concern about it. This incident cannot be counted against Gibbs. Rather, it goes against Kava- naugh and tends to show he was making unwarranted charges against her. Kavanaugh also testified that on September 1, 1970, he and his assistant, Cosnahan, met with Gibbs in the conference room at which time he "expressed disappoint- ment with her performance to date" and discussed her attitude and seeming lack of interest and unconcern with errors. He said he "pointed out" to Gibbs a number of errors but never detailed any in his testimony. The only specific incident he testified to was an incident Cosnahan brought up. This incident involved a night when overtime was being worked. Cosnahan, Nease, Gibbs, "and some others" had agreed to work until 7:30 or 8:00 p.m. Yet, at 7:30, Gibbs left without saying anything to anybody, particularly Cosnahan. When this was discussed with Gibbs at the September 1 meeting, Gibbs was "apparently unconcerned about the entire thing." Cosnahan corrobo- rated Kavanaugh. Gibbs could not recall that a meeting such as Kavanaugh described took place (and would have recalled it had it taken place) and denied being reprimanded. As to the overtime incident, she said that Nease told Audrey and Gibbs that their "desks were in top shape and that there didn't need to be any more work done on them." Nease asked Cosnahan if they could leave "since the desks were in good shape." Again, crediting Gibbs, I find that Gibbs had not been reprimanded in a meeting on September 1 and as for the overtime incident it certainly warranted Gibbs being "unconcerned about the entire thing." Finally, as to instances before the strike as to Gibbs' poor attitude as related by Kavanaugh on the witness stand, he testified that he made a "notation" on September 13 that by personal observation of Gibbs he was "unable to understand [her] complete lack of interest in job . . . work is very careless and sloppy . . . numerous errors and omissions.... Attitude, I could care less. . . . More errors pointed out. . . . Apparently has no motivation for doing good job." I do not credit Kavanaugh as to the truth of this "notation" nor as to the time it allegedly was made. First, he gave no specifics and, second, as a good supervisor his duty was to discharge such an employee on the spot if indeed her work and attitude were accurately set forth, but he gave no reason for not discharging her. Again, he did not discuss his "observation" with Gibbs and, by his own admission, Gibbs had been performing "okay" up until a time some 6 weeks earlier. The only event that had occurred in the interim period, insofar as the record is concerned, is that the Union had begun to bargain with the Respondent. 1. The strike and events thereafter as to Gibbs On September 25, 1970, the Union engaged in an economic strike which lasted 2 full workweeks. Gibbs had joined the Union the night before the strike and picketed Gibbs twice-once on September 1 and once on November 10. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with other employees for about 6 hours each day of the strike. Gibbs returned to work with all employees on the morning of October 12, 1970, the first day of work following the strike . But she did not return to her service order desk she had left to participate in the strike . Instead she was assigned by Kavanaugh to the ARJ or merchan- dise desk. Kavanaugh testified that this assignment was made because, ". . . we hadn't been satisfied with her performance on the service order desk and particularly because it was part of her training program." He did not tell this to Gibbs. Also when the Union Representative Huston complained to Kavanaugh about Gibbs ' assign- ment, Kavanaugh apparently only talked to him about the training program and not about the alleged unsatisfactory performance on the service order desk and he was satisfied that the transfer was for training purposes. Kavanaugh himself trained Gibbs on the merchandise desk for "close to two weeks off and on." He gave her a procedural manual and told her how to do the job. Once, Gibbs attempted to take notes while he was talking but was prohibited by Kavanaugh on the ground that she might miss "significant points" and she was free to come to him or his assistant, Cosnahan, for any question about her work. Kavanaugh testified that the manual was very detailed and denied the testimony of Gibbs that there were many things not answered in the manual . It seems inconsistent to take the position that Kavanaugh does take, because how could he be telling Gibbs some "significant points" he didn't want her to Huss by taking notes and at the same time maintain that the manual was very detailed. If what he was telling Gibbs was already in the manual, it seemingly would not matter if Gibbs would miss it by taking notes. But the fallacy of his statement lies in his proposition that a note-taker misses significant points by taking notes when the very purpose of taking notes is to reduce significant points to writing to guard against lapses of memory. Why Kavanaugh refused to permit Gibbs to take notes as he explained her duties on the new)ob must be based on reasons other than those he gave. Gibbs testified he told her not to take notes as everything was in the manual . His credibility again suffers. Kavanaugh testified at great length how on certain days he noted comments about her work; yet, he admitted at the beginning of his testimony that he had been spotty in training Gibbs. For example, he noted on October 15, 1970, that Gibbs seemed slow to grasp how to post cash; on October 20, he spent the day with Gibbs cleaning up her desk as to group requisitions and noticed that Gibbs did not appear farmliar with a number of things she should have been familiar with, but gave no examples; he spent the morning instructing Gibbs on October 21; and, on October 29, he noticed that Gibbs did not know how to post new building saw charges and was going to throw away old investigation slips rather than file them in a file to be thrown away after a 1 -year period ; yet, Kavanaugh never testified that he had earlier instructed Gibbs in these matters. As all of these matters took place within the first 2 weeks Gibbs had the new job and during the time Kavanaugh was giving her the "spotty training," I cannot find her to be a poor employee with a bad attitude as Kavanaugh kept trying to maintain. Kavanaugh testified that in a meeting on November 11, 1970, he told Gibbs of certain specific errors she had made causing the books of October to be out of balance; he accused her of being sloppy and told her to do a better job in November. To this Gibbs replied, "All right." From this remark, Kavanaugh concluded Gibbs "didn't give a dam." On the other hand, Gibbs testified that Kavanaugh spoke to her about the October books not balancing and that the books for November had better balance. Gibbs also said this was the meeting when Kavanaugh told her for the first time that she had an attitude problem but refused to be specific about it. As the books in November did balance, I conclude that when Gibbs said, "All right," she meant just that and made it all right . Again, this is not the remark of a poor employee with a bad attitude. It is the remark of an employee with careful speech. Kavanaugh testified that on December 9 he noted that Gibbs had a messy desk the preceding day with rubber bands and paper clips all jumbled up in her desk drawer with material which should have been filed . According to Gibbs' credited testimony, she had never been told before what to do with the unfiled material and no harm had been done as it was material that was to be filed for later disposal. Apparently Kavanaugh never considered this messy drawer incident important until the hearing in this case because it had not been mentioned to the Union as one of the reprimands he had given Gibbs that led to her ultimate discharge . I don't consider it important either. But Gibbs testified that later on the same day, Kavanaugh called her back to his office to ask her if she liked the desk. She told him she did like it. One other incident occurred on December 14, according to Kavanaugh's testimony, that was Gibbs' fault. Some 75 bills had been mailed to customers who had already paid the bill and Gibbs was made to make the adjustments. Gibbs credibly testified that the error was caused by malfunctioning equipment. Again, I find that Gibbs was not at fault. 2. The discharge of Gibbs According to Kavanaugh, on Thursday, December 17, 1970, he told Gibbs to prepare a statement showing all the billings to a customer, Lowes of Savannah, noting thereon which of the billings had been paid and which were unpaid and give the statement to Hosti, Respondent's service manager of appliance repair in time for him to have it for a scheduled meeting with a Lowes representative on Mon- day, December 21. Later on the same day , Kavanaugh asked Gibbs for the statement but was told it was yet incomplete as she had to check which of the charges had been paid. Not getting the statement from Gibbs on that Thursday and being out of the office on Friday, Kava- naugh asked his assistant to follow up Friday and get the statement to Hosti. According to his assistant, Cosnahan, she did ask Gibbs on Friday if the statement was prepared and found it was not complete. When Kavanaugh returned Monday to find the statement had not been completed and had not been given Hosti, he conferred with his assistant, Cosnahan, concerning the work of Gibbs from the "latter SAVANNAH ELECTRIC AND POWER CO. part of July." He testified further that they took up Gibbs' attitude," "her apparent lack of interest," and "her unconcern" and "decided on the basis of that it would not be in the best interest of the Company to continue her employment." Gibbs was called in, told this, and dis- charged. Gibbs' version of the discharge is that Cosnahan came by her desk in the afternoon of December 21 and told her that she and Kavanaugh would like to talk to her after work. After work she went to Kavanaugh's office where he and Cosnahan were and Kavanaugh "started out by saying as a probationary employee you have no rights under the union contract." She replied, "Yes, sir." And he said we have told you before about your attitude problem and it hasn't changed. And so we are discharging you. She also testified that although the reason given her for the discharge was her attitude problem, Kavanaugh had given "unsatisfactory performance" as the reason for discharge on the State of Georgia form. She did not remember the Hosti incident at all. Thus, it is clear that the reason given for Gibbs' discharge was her attitude problem. But before making any concluding findings as to why Gibbs was discharged, it is necessary to examine certain evidence pertaining to the attitude of Respondent to its employees before the strike and its attitude to its employees thereafter. 3. Other evidence of Respondent's attitude Union Representative Jack Huston credibly testified that on the first day when the employees came back'to work after the strike, October 12, Respondent notified the Union that for economic reasons the meter readers would no longer be allowed to drive Respondent's cars home at night as they had done before, but had to leave them on the parking lot. This action could not be the basis for a complaint before the Board as it occurred more than 6 months before the charge was filed and was barred under Section 10(b) of the Act. Inasmuch as the same economic reasons applied before the strike as after the strike, the strike itself must have caused the action. As economic stakes are protected activity, retaliatory action such as this against the Union for striking proves animus by Respon- dent against the Union. Gibbs credibly testified that shortly after the strike Kavanaugh stopped the practice of coffee drinking at the work station of the employees in customer accounting on the grounds that it might mess up the keypunch cards. As there was no evidence that representation by the Union rather than by the Independent made employees more inclined to mess up the keypunch cards, this sudden change of the rule is evidence of union animus as it obviously was made because of the Union's becoming the bargaining representative of the employees. Likewise union animus of Respondent was established when immediately after the strike Respondent changed the job locations of striking employees Betty Nease and Ann Crenshaw to their physical discomfort if not harm. Both were put on jobs, according to Gibbs' credited testimony, requiring them to stand more than they did before the 759 strike. Nease had been told by her doctor to keep off her feet and Crenshaw was pregnant and was not supposed to stand. Employee Paul Feldman credibly testified that he was on the negotiating committee of the Independent and partici- pated in the bargaining as vice president of the Union after it was certified. His testimony was that up until the strike of September 25, 1970, the negotiations had taken place on company time and property, but that thereafter the negotiations had to be held after hours or the employees participating would have their pay docked. This change of position is additional evidence of union animus. 4. Conclusion as to Gibbs The conclusion I draw from the discharge of Janet Gibbs is that she was discriminatorily fired to discourage membership in the Union. She was a known member of the Union and the evidence is clear that Kavanaugh was seizing any pretext to discharge her. The only thing that happened between the time that Gibbs was highly thought of as an employee and the latter part of July when her "attitude" changed (according to Kavanaugh) was the advent of the Union. Kavanaugh, who had been active in the Independent and who had been its president several times, seemingly turned on Gibbs, a member of and a picket for the Union which had succeeded the Independent in July. Her work did not warrant his hostility toward her, so he claimed (with no proof) that her attitude had changed. An employer can discharge for any reason or for no reason so long as it is not motivated by antiunion considerations. The General Counsel has established by a preponderance of the evidence that Gibbs was discrinuna- torily fired and that the reason given was only a pretext with the real reason being antiunion motivation to discourage membership in the Union, and I so find. This type of discharge violates Section 8(a)(3) and (1) of the Act. B. The Refusal To Bargain Negotiations on an initial contract between Respondent and the Union were begun on July 15, 1970, and continued through the months of August and September 1970. No agreement was reached between the parties and, as noted above, on September 25, 1970, the Union called an economic strike against Respondent. Following further negotiations between the parties, a strike-settlement agree- ment was executed on October 12, 1970, which set forth the terms under which the strike was concluded and the striking employees were reinstated to their jobs. Also on that date, a contract was executed between the parties effective from October 12, 1970, to December 1, 1972, with an automatic renewal clause in the event certain conditions are not met. In January 1971, two vacancies occurred in the job classification of meter reader in the accounting depart- ment, under the supervision of Kavanaugh, manager of customer accounting, the same person involved in Gibbs' 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge. On January 7, 1971, Kavanaugh notified employee Thomas Rogers (shop steward for meter readers in customer accounting) that in accordance with article V, section 2 of the contract, the Union was being advised that the Company did not plan to fill the two existing vacancies .3 On January 13, 1971, Kavanaugh again met with Rogers and told him that Respondent had decided to contract out meter-reading work to Morrison Security Systems, Inc., of Savannah, Georgia, as vacancies occurred in the meter reading section by normal attrition. It was disclosed at that time that it was management's intention that no meter reader in the bargaining unit would lose his job by reason of the fact that meter-reading work was being contracted out to an independent contractor. No formal grievance was filed by the Union at that time. On or about January 22, 1971, Kavanaugh accepted a grievance from Union Officers C. L. McKenzie and Claire M. Knight at the step two level of the contract grievance procedure. In this grievance, the Union protested manage- ment's decision to contract out meter-reading work, contending that it was a violation of the existing contract. On February 2, 1971, Supervisor Kavanaugh and W. R. Butler (acting secretary-treasurer), representing Respon- dent, and C. L. McKenzie (president) and Paul Feldman (business agent), representing the Union, took part in a step three grievance meeting under article XVIII of the contract. At that meeting, Respondent took the position that the grievance should be denied on the basis of article X of the contract.4 Subsequently, the Union did not take this grievance to step four of the grievance procedure nor did the Union request that the matter be submitted to arbitration under article XIX of the contract. The Union's position is that contracting out meter readers' work unilaterally goes beyond the intent of the contracting parties and is "unfair to the spirit, if not the letter of the agreement." The evidence presented by the General Counsel does not sustain his allegation of bad-faith bargaining by Respon- dent over contracting out the work of meter readers. There is evidence that Respondent over the years had considered this possibility, but there was no evidence that Respondent was contemplating doing this at the time of bargaining. As early in bargaining as August 5, 1970, Respondent wanted the right to contract work, and Beall, Respondent's personnel director, credibly testified that "to contract" meant what it said. Examples of what presently was being contracted out were given, but the phrase "to contract" 3 According to the stipulation of fact (Resp. Exh. 4), Kavanaugh told Rogers on January 7, 1971, that Respondent did not plan to fill future meter reader vacancies with employees However, Kavanaugh corrected this by testifying that nothing was said about future vacancies in the January 7, 1971, meeting. The actual date is immaterial. 4 Art. X reads as follows. Management Section I Except to the extent expressly abridged by a specific provision of this Agreement the Company reserves and retains all of its rights to manage the business The rights of management which are not abridged by this Agreement shall include but are not limited to the full and exclusive control of all business operations, including the right to determine procedures, processes and business methods, to determine how many employees it shall hire or maintain in its employ; to assign or reassign work, to contract, and/or discontinue in whole or in part any of its operations , the supervision and direction of employees, and the right to hire, promote, demote, discipline and transfer from one department to another where such transfer was not limited to the present practice. During the strike, on October 8, 1970, Respondent agreed to the last sentence in article X, above, but this has nothing to do with contracting out work. I will recommend this allegation be dismissed. C. E. Olin Veale Alleged violations of Section 8(a)(1) In paragraphs 8 and 17 of the complaint, the General Counsel alleged that Respondent's general accounting manager, E. Olin Veale, on or about April 1, 1971, in and about the vicinity of its office, prohibited employees from discussing the Union in working areas of the office during nonworking time in violation of Section 8(a)(1) of the Act. Respondent denied that it has violated the Act. The witnesses presented by the General Counsel in his attempt to prove this allegation, were Claire Knight, a 9- year employee steno-clerk in the general accounting department, also secretary-treasurer of the Independent Union, and Clifford McKenzie, a 13-year employee accountant, president in both unions, both officers in the Union. Knight and McKenzie testified that in April 1971 Supervisor Veale called them into his office and informed them that he had observed them conducting union business on company time and premises and, further, that they would be suspended for 3 days (automatically) should they continue this practice in the future. At this point, McKenzie told Veale that he had been informed that they (Knight and McKenzie) were free to conduct union business "on our break time and our lunch hours in the lunchroom." Veale replied that he did not know the answer to this question, but that he would check into the matter and let them know later that day. Later that same day, according to Knight and McKenzie, Supervisor Veale informed them that they were correct in that they could conduct union business in the lunchroom on their own time so long as they did not "antagonize" other employ- ees.5 There is no question but that Section 8(a)(1) of the Act was violated when Veale enunciated the broad no-solicita- tion rule to Knight and McKenzie. Board law is to the effect that this needlessly interferes with the rights of employees protected under Section 7 of the Act. The question remains did his subsequent statement to the same employees correct the violation. I do not believe it did. He did not say that the employees were free to conduct union is agreeable to the employee ; and with full power to suspend and release employees for just cause The Company shall also exercise exclusive right to set its policy, to manage its business in the light of experience, good business judgment and changing conditions, to determine the qualifications for and to select its managerial and supervisory forces and other employees, to determine the number of regular and other employees it will retain in its service at any and all times during the life of this Agreement ; to make rules and regulations governing the operation of its business and the conduct of its employees while on duty, and to enforce discipline for violation of rules and other misconduct Before the Company creates or promulgates any rule dealing with the conduct of its employees the Union will be notified 5 At the close of the General Counsel 's case, the Company moved to dismiss this allegation on the ground that the General Counsel had failed to sustain his burden of proof. However, the Trial Examiner deferred ruling on the motion until after he had an opportunity to fully review the record testimony After reviewing the record , I hereby deny the motion to dismiss for the reasons hereinafter set forth SAVANNAH ELECTRIC AND POWER CO. business on companyproperty on their own time, as they are free to do under the law under the circumstances present in this case, but said merely that they were free to conduct union business in the lunchroom on their own time . This is not broad enough and Section 8 (a)(1) is violated. Respon- dent will be ordered to correct the permission to include all the property of Respondent usually used by the employees. CONCLUSIONS OF LAW 1. Savannah Electric and Power Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Office and Professional Employees International Union, Local 455, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By limiting the area of its plant to the lunchroom for employees to be able to freely engage in union activities on their own time and threatening them with suspension for violating this rule, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and 2(6) and (7) of the Act. 4. By discharging Janet Gibbs because of her union activities, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) and 2(6) and (7) of the Aci. 5. General Counsel has failed to establish by a preponderance of the evidence that Respondent refused to bargain in good faith within the meaning of Section 8(a)(5) of the Act, over contracting out meter-reading work. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with its operations de- 761 scribed in section I, above, have a close, intimate, and substantial relationship 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 Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As an unlawful discharge of an employee strikes at the very heart of employees' rights safeguarded by the Act, N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4), and as I have found that Respondent discharged Janet Gibbs because of her union activities , I shall recommend that it be ordered to offer her immediate and full reinstatement to her former job or , if that job no longer exists, to a substantially equivalent position , without prejudice to her seniority or other rights and privileges, and to make her whole for any loss of earnings she may have suffered by reason of her unlawful discharge by payment to her of a sum of money equal to that which she normally would have earned as wages, from the date of her discharge to the date of the offer of reinstatement, less net earnings, to which shall be added interest at the rate of 6 percent per annum in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact , conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following. [Recommended Order omitted from publication.]