Appalachian Power Co.

576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appalachian Power Company and International Broth- erhood of Electrical Workers, AFL-CIO. Case 9-CA-5708 July 31, 1972 DECISION, ORDER, AND NOTICE On December 14, 1970, Trial Examiner James V. Constantine issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions to the Trial Examiner's Decision and a supporting brief, and the General Counsel and the Charging Party respectively filed limited exceptions, each with a supporting brief. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs, and finds, in accord with certain of Respon- dent's exceptions, that this case should properly be deferred to arbitration. The Board therefore adopts only such findings and conclusions of the Trial Examiner as are consistent with this Decision and Order. The complaint alleged that Respondent violated Section 8(a)(3) and (1) of the Act by revoking, effective as of July 5, 1970, a 2-year leave of absence Respondent had granted the previous January 2 to Dallas Kinser, an employee at its Logan, West Virginia, plant. The material facts concerning the Respondent's grant and cancellation of the leave are not disputed. They are as follows: Respondent granted Kinser the leave of absence at Kinser's request and in the context of the below- quoted provisions contained in the bargaining contract between Respondent and 10 IBEW Locals covering IBEW-represented employees at 12 plants.' The provisions in question are contained in article X (or 10) of the contract and state as follows: LEAVES OF ABSENCE 10.1 When the Company's business conditions permit, an employee may be granted a leave of absence for a period not exceeding one (1) year, during which he shall continue to accumulate seniority; provided, however, that for a cause determined sufficient by the Company such leave may be granted for not more than one (1) additional year. No leave may be granted for an employee to take employment elsewhere during such leave, except for employment arranged by or consented to by the Company, and except as provided in Section 10.3. 10.2 If it is claimed that the Company has been I These plants are located at Logan, Beckley, Cabin Creek, Huntington, Point Pleasant, Kanawa River, and Charleston, in West Virginia; and at Lynchburg, Roanoke, Fieldale, Glen Lyn, and Clinch River, in Virginia. The contract covering these plants is a single instrument, the terms of which were negotiated by a Systems Council composed of representatives of guilty of discrimination in refusing or allowing a leave of absence, such alleged discrimination may be made the subject of a grievance. 10.3 An employee who is selected as representa- tive of the System Council of the Local Unions to serve the interests of the System Council or Local Unions in matters pertaining to the bargaining units may, after reasonable notice to the Compa- ny, be granted a leave of absence without pay for two (2) years, and additional two (2) year periods thereafter if mutually agreed upon by the Compa- ny and the Union. He shall continue to accumu- late seniority and serve throughout the leave of absence. Upon termination of his duties he shall be reinstated in his former position, with all rights and privileges, provided he is then still qualified and capable of performing the duties of such job. 10.4 All leaves of absence shall be issued in writing and state the condition thereof. A copy of such leave shall be kept on file by the department head and a copy furnished to the employee and a copy to the Union. Kinser first formally applied to Respondent for leave by a letter dated October 10, 1969. In that letter, Kinser asked for a 1 year's leave of absence "pursuant to Sections 10.1 and 10.3" of the contract in order to "accept assignment as a full-time representative for Local Union 938, Local Union 1978, and Local Union 1119" of the IBEW. These ;locals represent employees of Respondent at Logan, 'Charleston, and Huntington and Point Pleasant, West Virginia, respectively. On November 5, 1969, Respondent replied by letter that it was "not our practice to grant an employee personal leave under Section 1 to take employment elsewhere." However, calling Kinser's attention to section 10.3, above, Respondent suggested that he request leave "in accordance with" that section. By letter dated December 13, Kinser requested, "pursuant to Article X, Section 3," a 2-year leave, effective January 5, 1970, "to accept assignment as a full-time representa- tive for Local Union 938, Local Union 978, and Local Union 1119." Respondent then granted the leave. Kinser went on leave on January 5, 1970. While he spent the major portion of his time in handling matters of immediate interest to the employees in the bargaining units in question, he also spent a substantial part of his time in conducting organizing campaigns for the IBEW among groups of unorgan- each of the local unions. The contract recognizes the Systems Council as the "representative" of the 10 IBEW Locals as to all contract matters referred to said Council by said locals. The contract is dated October 1, 1968, and is effective , by its terms, until September 30, 1971. 198 NLRB No. 7 APPALACHIAN POWER COMPANY ized employees at Respondent's Huntington plant and at the Big Sandy and Ashland plants of the Kentucky Power Company, a sister company of Respondent. Respondent was informed that Kinser, in the course of his organizational activity, was represent- ing himself to the employees not only as an IBEW "representative" and "business manager," but also as an employee of Respondent who had been granted leave from the Logan plant. Acting on this informa- tion, Respondent sent a letter, dated March 18, 1970, to each of its unrepresented employees with a copy to Kentucky Power Company. Respondent, in its letter, stated, among other things, that Kinser's attempt to "expand union organization among unorganized employees of Appalachian and sister company properties" was a "type of activity not envisioned by Appalachian management when he was granted leave." Then, after referring to indications that "some" had viewed the "fact that Mr. Kinser is on leave" as signifying that management "looks with favor upon his activities," Respondent's letter added: "Such is not the position of the Company." On April 9, Kentucky Power Company sent a separate letter to its employees and attached a copy of Respondent's letter.2 Kinser's organizational efforts bore fruit at one of the three plants where he had sought to organize-n- amely, that of Kentucky Power's Big Sandy plant, where, in May 1970, the Union won a Board election. After the election the Union posted a notice (on May 21) announcing the results and stating that "this campaign was conducted by D. A. Kinser, Business Manager of Locals 938, 978, and 1119 in his spare time after 3:30 p.m." Thereafter, on June 2, 1970, Larew, Respondent's personnel director, wrote Kin- ser and informed him that his activities while on leave were "both contrary to the letter as well as the intent of the provisions" of the agreement pursuant to which his leave was granted and that his leave was therefore canceled, effective July 2, 1970. Pursuant to Respondent's June 2, 1970, letter, Kinser came back to work at his regular job on July 2, 1970. Meanwhile, however, the Union took dual measures in an effort to obtain a revocation of Respondent's cancellation action. First, on June 8, 1970, it filed a grievance under the contract's grievance-arbitration procedures. These procedures provided for four internal steps (with a hearing at the fourth one) and for arbitration as the fifth and final step. The Union complained in its grievance that 2 Respondent's agents testified at the hearing that Kentucky Power had complained to Respondent about Kinser's conducting an organizing campaign while on leave-of-absence status and that, as a result, there had been a "strain" in Respondent's relations with that company. 577 Respondent's action was taken in violation of both sections 10.3 and 3.1 of the contract.3 Next, and while the grievance was pending for decision at the fourth step following hearing, the Union, on June 24, 1970, filed the charges herein, alleging Respondent's action to be unlawful discrimination within the meaning of Section 8(a)(3) and (1) of the Act. On July 7, 1970, the Union was notified that its grievance had been denied at the fourth step, and it thereupon invoked the arbitration provision of the contract (art. IV, sec. 4.4). The contract's arbitration procedure calls for a board of three arbitrators-one designated by the Union, one by Respondent, and the third by the two arbitrators. The contract also specifical. y commands the use of arbitration where an issue involving contract interpretation is raised. A month later, on August 7, 1970, Respondent informed the Union that one McIntosh had been appointed as the Company's representative on the board of arbitration. On August 11, Bledsoe in- formed Respondent that he himself had been named as the Union's representative. On August 18, the two representatives met to select a neutral person as a third member but were unable to agree on anyone. They therefore agreed that Bledsoe should procure a list of arbitrators from the American Arbitration Association and that a selection would be made from that list. On August 25, 1970, the General Counsel issued the complaint in this case based on the charge the Union had filed on June 24, 1970. At the hearing held on October 21, 1970, Bledsoe, the last witness called by the General Counsel, announced from the stand that he was "withdrawing" the Union's referral of Kinser's grievance to arbitration. No evidence was adduced that, as of that date, Bledsoe had communi- cated, as he had promised, with the American Arbitration Association. The Trial Examiner found on the foregoing facts that Respondent had canceled Kinser' s leave, in part, for a permissible reason, namely that Kinser had conducted some of his organizing activities during the hours when Kinser would have been working at his regular job but for his leave ("working time," as the Trial Examiner defined it), and, in part, for an impermissible reason; namely, that Kinser had conducted a substantial portion of his organizing activities during "nonworking time." He concluded that, as the reason he found legally impermissible was a "substantial and motivating" one for the cancellation action, Respondent had therefore violat- ed Section 8(a)(1) and (3) of the Act. The Trial 3 Sec. 10.3 is quoted supra. Sec. 3 . 1 expresses Respondent's general undertaking not to discriminate against employees because of their union activities. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner supported his conclusion in this respect mainly by importing into this case certain established Board principles that are applicable to situations where employer rules against union solicitation by employees are at issue. The Trial Examiner assigned as an added basis for the ultimate conclusion he reached that "Respondent entertained antiunion hostility and that such entered into the decision to cancel Kinser's leave." The Trial Examiner appears to have rested his finding of antiunion hostility solely on the objection to Kinser's organizing activities that Respondent and the Ken- tucky Power Company expressed to their employees in the letters referred to above, wherein the employ- ees were also solicited to vote against the Union in the then pending Board elections. Not only the Respondent but the General Counsel and the Charging Party as well have taken exception to the Trial Examiner's importation to this case of--- the Board principles pertaining to employer no- solicitation rules and to the distinctions he drew on that basis between Kinser's working time and free time as applied to the specific issues before us. We agree that these exceptions are well taken. The Board's no-solicitation rule principles, which distin- guished between employer restrictions of union solicitation on working time and free time, were fashioned to work out an accomodation between the organizational rights assured to employees under the Act and the right and need of employers to maintain production and discipline in their plants. The distinction between "working time" and "nonwork- ing time" drawn by the Trial Examiner has no real meaning here since Kinser, although still an "em- ployee" in the statutory sense, was not working for Respondent during the period here in question; Plainly, no employer interest in production or discipline is involved in this case, and there are no conflicting rights to balance. It follows, and we find, that the question of whether or not, or to what extent, Kinser engaged in organizational activities during or after the normal hours of his job with Respondent is wholly irrelevant. In substantial agreement with Respondent, we find that the violation issue presented for determination here turns, initially, on two questions: (1) whether section 10.3 of the contract-the section under which Kinser was granted leave-imposed, as a condition, that the person granted leave to act as a union representative limit his activities as such to serving "the interests of the bargaining units"; and (2) 4 Of course, as Respondent itself recognizes, Respondent's action against Kinser would establish a violation of Sec 8(a)(3) and (1) in the absence of any contractual restrictions on Kinser's engaging in organizing activities while serving, on leave, as a union representative under the parties' bargaining agreement 5 Our dissenting colleagues' view that Respondent's "alarm " over the whether Kinser's extension of his activities to union organization at unrepresented plants while serving as a council representative constituted a breach of that condition. Quite clearly, Kinser had no right inde- pendently of the contract to acquire, or to retain, the status of an employee while on leave. And, if, in truth, it was the parties' contractual intent (as Respondent contends) to prohibit an employee granted leave under section 10.3 of the contract from acting as a union organizer while on leave, we would not be prepared to hold, in the context of this case, that either the condition itself, or Respondent's enforcement of it through the cancellation of the leave, was so inherently destructive of statutory rights as to amount, without more, to a per se violation of Section 8(a)(1) and (3) of the Act.4 Taking into account the record evidence as a whole, we are not persuaded that an inference of unlawful motivation can justifiably be drawn from considerations independent of the contract. For, assuming, without deciding, that Respondent has correctly interpreted the relevant provisions of the contract, the Trial Examiner's additional conclusion that Respondent's cancellation of Kinser's leave was motivated by antiunion hostility seems to us over- drawn. It is true, of course, that Respondent and the Kentucky Power Company, in preelection letters addressed to their employees, pressed their objec- tions to Kinser's organizing activities. But they did so specifically on the ground that Kinser's activities were in contravention of the terms of his leave, and they made clear that their concern was to dissipate any inference that employees might draw from Kinser's activities while on leave that the companies favored or sponsored the Union's campaigns. If, as Respondent here contends, Kinser's organizing activities were in fact in violation of the conditions under which Kinser was granted leave, we cannot say that the Respondent had no legitimate reason for so advising its unrepresented employees. Nor do we believe that a contrary inference is required simply because such statements were incorporated in pre- election literature urging a no-union vote. Respon- dent's preelection campaign statements were moder- ate in tone, and, viewed in the light of Respondent's long history of bargaining with the Union, can hardly be characterized as displaying a deep-seated animus to its employees' union representation or disregard for its employees' statutory rights.5 What emerges from all of the above is that, although the issue in this case is couched in unfair Union's victory at the Kentucky Power plant lay at the root of its cancellation action seems to rest heavily on the fact that Respondent canceled Kinser's leave immediately after that union victory was certified by the Board . But the timing of Respondent's action is also subject to the inference that it was attributable to wholly legitimate considerations, namely, that Respondent did not wish to lay itself open to the risk of APPALACHIAN POWER COMPANY labor practice terms, that issue is essentially a dispute about the meaning of relevant contract terms. Although we are, of course, empowered to construe those terms, Respondent here requests that we defer to arbitration .6 For reasons fully set out in Collyer Insulated Wire Co., 192 NLRB No. 150, we hereby grant that request. We note particularly that the parties have grievance-arbitration procedures they themselves have voluntarily established; they have bound themselves under section 10.3 of the contract to refer all disputes about the interpretation of contract terms to those procedures; and it appears finally at rest in a manner sufficient to effectuate the policies of the Act.7 Finally, here as in Collyer, we shall dismiss the complaint but retain jurisdiction of this proceeding for purposes of entertaining an appropriate post decree motion. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the complaint herein be, and it hereby is, dismissed; provided, however, that: Jurisdiction of this proceeding is hereby retained for the limited purpose of entertaining an appropri- ate and timely motion for further consideration upon a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this decision, either been resolved by amicable settlement in the grievance procedure, or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act. MEMBERS FANNING AND JENKINS , dissenting: As found by the majority, section 10.3 of the contract between the Respondent and the IBEW locals here involved provided that an employee would be eligible for leave of absence if selected as a representative of these locals to serve their interests "in matters pertaining to the bargaining units." Pursuant to this contractual clause Dallas Kinser was granted leave on January 5, 1970. Thereafter Kinser assisted the IBEW in several organizational cam- paigns to organize unrepresented employees of election objections in the event of a no-union vote ; it therefore withheld its cancellation action for that reason . Certainly no inference of unlawful motive may be drawn from the preelection statements issued by Kentucky Power and Respondent inasmuch as these statements were carefully limited to the expression of views permitted by Sec. 8(c) of the Act, and involved no conduct calculated to impede or to coerce the employees in the exercise of their right to vote for-or against-the Union. 6 It is, of course , implicit in our decision that the contractual provisions applicable to the situation here in issue are susceptible of dual meanings -one consistent with Respondent's position and the other consistent with the Union's. Our dissenting colleagues contend that, in these circumstances, our decision "ignorels] the long line of Board and court decisions holding that a waiver of statutory rights must be stated in clear and unmistakable terms." Our colleagues' contention, however, disregards the fact that Kinser's "right" to go on leave and to remain in that status is one that 579 Respondent and sister companies. At the Respon- dent's Huntington, West Virginia, office the Union was unsuccessful. However, in May 1970, the Union won an election at the Big Sandy Power plant of the Kentucky Power Company and a Board certificate issued on June 1. The following day Kinser's leave was summarily terminated on the ground that his organizing activities as a union representative consti- tuted an abuse of his contractual leave. Immediately thereafter Kinser spoke to Respondent Wage and Salary Supervisor Hammer and Personnel Director Larew. When Kinser noted that the Respondent did not object to his role in the losing campaign at Huntington but did not like the Union's victory at Kentucky Power, Hammer replied, "You're right .about that." Larew's explanation was that the Company had been getting pressure from too many ,other companies and this had created a strain in their relations. The record is clear that the Respondent strongly opposed the organization of its unrepresent- ed employees and those of sister companies. On March 18, 1970, W. S. White, executive vice president, wrote to Appalachian employees, noting that Kinser's organizational activity "was not envi- sioned by Appalachian management when he was granted leave" and openly informing them that the Company was opposed to the unionization of any group of Appalachian employees and that union representation would not work "in the best interest of the employees. . . ." Kinser's leave, however, was not withdrawn at this time. On April 9, 1970, Waldo S. LaFon, executive vice president of Kentucky !Power, sent a letter to the employees of that company, clearly stating that the company was opposed to their organization and that Kinser's status as an employee on leave did not indicate approval of his activities by management. A copy of 'White's letter was attached. As noted above, the Union won the election and Kinser's leave was terminated immediately thereafter. The majority contends that the Trial Examiner's finding of union hostility is "overdrawn" and that, in 'fact, the Respondent did not display "a deep-seated animus to its employees' union representation." It derives, not from Sec. 7 of the Act, but solely from the contractual arrangements of the parties. This being so, the Board's "clear and unmistakable waiver" concepts do not apply. Our colleagues also suggest that, in any event, our deferral to arbitration in the kind of situation here before us may result in depriving employees of "rights they thought were guaranteed by Congress." We fail to see how the statutory rights of any employees could be prejudiced if the nature and extent of Kinser 's "right" to remain on leave of absence status, in the circumstances of this case, is left for relevant, albeit ambiguous, terms. Our order explicitly guards against any possible risk of prejudice to statutory rights which might result from an arbitrator's decision. 7 We note in this connection that the remedy requested by the Union in presenting Kinser's grievance to the contract's grievance forum is essentially the same as sought by the General Counsel. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seems to us the evidence cited above is sufficient to support the Trial Examiner's finding. The issue posed is whether, as the Trial Examiner found, Kinser's loss of leave was prompted by discrinunato- ry motivation. Clearly, Respondent desired to avoid the consequences of union representation for its employees and, admittedly, Respondent's officials became alarmed after the Union's victory at Kentuc- ky Power. The depth of Respondent's hostility is irrelevant if, indeed, antiunionism was the inspiration for Respondent's conduct. Rejecting all of the above evidence, the majority concludes that there is no basis for a finding of unlawful motivation independent of the contract and that this case "is essentially a dispute over the meaning of relevant contract terms." As in Collyer Insulated Wire, supra, the majority relegates the determination of this dispute to the forum of arbitration. Such a decision is justified in this case solely on the ground that the Respondent has taken the position that section 10.3 of its contract prohibits an employee from engaging in organizing activities while on leave. But for this broad interpretation of an ambiguous clause the majority concedes that the Respondent's action against Kinser would be viola- tive of Section 8(a)(1) and (3) of the Act, as found by the Trial Examiner. The critical phrase in section 10.3 of the contract provides that an employee may be granted leave "to serve the interests of the System Council or Local Unions in matters pertaining to the bargaining units...." The majority makes no attempt to interpret this clause or even to judge the reasonableness of the Respondent's interpretation. In our opinion, it is hardly enough to say "if, in truth, it was the parties' contractual intent" or "if, as Respondent here contends" then, accepting such a contention as truth, no violation is established. Certainly, this Board has some obligation to consider the nature and viability of Respondent's interpreta- tion. Otherwise, any contractual term which, broadly interpreted, would permit an employer to engage in conduct violative of the Act may be raised as a shield behind which the Board dare not intrude to perform its statutory function. We would think it self-evident that an increase in the number of union members within the same employer complex is, indeed, a matter that bears a relationship to the interests of the established bargaining units. But assuming the contrary, the Respondent freely admits that it discriminated against Kinser because of his concert- ed activities. Its sole defense is the above contractual clause, ambiguous at best, and which must be construed as a waiver by the Union of Kinser's statutory rights.8 The alleged infringement of such rights by contractual agreement between a union and an employer historically has been a matter of grave concern to the Board and the courts . In three bold steps the majority reaches the conclusion that this case does not now warrant Board consideration. First, the majority is uncritically willing to assume that the Respondent has properly interpreted section 10.3 of the contract. Second, the majority is prepared to hold that a waiver by the Union of Kinser's Section 7 rights is not "inherently destructive of statutory rights." Third, the majority apparently is prepared to go further and ignore the long line of Board and court decisions holding that a waiver of statutory rights must be stated in clear and unmistak- able terms.9 Whatever may be said of steps one and two, 8 Contrary to the majority, we do not contend that Kinser's right "to go on leave and remain in that status" is protected by Sec 7 What is protected, however, is his right to engage in concerted activity whether or not he is on leave Clearly, Respondent is statutorily prohibited from discriminating against him and interfering with his exercise of such right 9 Unit Drop Forge Division Eaton Yale & Towne Inc, 171 NLRB 600, Rockwell-Standard Corporation, Transmission and Axle Division, 166 N LRB 124, C & C P l y w o o d Corporation, 148 NLRB 414, affd 385 U S 421, reversing 351 F 2d 224 (C A 9), Acme Industrial Company, 150 NLRB 1463, enfd 351 F 2d 258 (C A 7), affd. 385 U S 432, Beacon Piece Dyeing and Finishing Co, Inc, 121 NLRB 953, Hekman Furniture Company, 101 NLRB 631, Leland-Gifford Company, 95 NLRB 1306, The B F Goodrich Company, 89 NLRB 1151, The Timken Roller Bearing Company, 138 NLRB 15, enfd 325 F.2d 746 (C.A. 6), Yawman & Erbe Manufacturing Company, 89 NLRB 881, enfd 187 Fld 947 (CA 2); Whitin Machine Works, 108 NLRB 1537, enfd 217 F.2d 593 (C A. 4), cert denied 349 U.S 905, The Item Company, 108 NLRB 1634, enfd 220 F 2d 956 (C A 5), Boston Herald-Traveler Corporation, 110 NLRB 2097, enfd 223 F 2d 58 (C A 1), Utica Observer- Dispatch Inc, I i I NLRB 58 TRIAL EXAMINER' S DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Trial Examiner: This is an unfair labor practice case commenced under Section 10(b) of the National Labor Relations Act, herein called the Act. 29 U.S.C. 160(b). It was generated by a charge filed on June 24, 1970, by International Brotherhood of Electrical Workers, AFL-CIO, herein called I.B.E.W. or the Union. Thereafter, on August 25, 1970, the General Counsel of the National Labor Relations Board, herein called the Board, through the Regional Director for Region 9 (Cincinnati, Ohio), issued a complaint against said Res- pondent. In substance said complaint, which is based on said charge, alleges that Respondent has violated Section 8(a)(1) and (3), and that such conduct affects commerce as defined in Section 2(6), of the Act. Respondent has answered admitting some facts, but denying that it committed any unfair labor practices. Pursuant to due notice this case came on to be heard, and was tried before me, on October 21, 1970, at Logan, West Virginia. All parties were represented at and participated in the hearing, and had full opportunity to adduce evidence, examine and cross-examine witnesses, file briefs, and present oral argument. Briefs have been received from the General Counsel and the Respondent. This case presents the issues of (1) whether Respondent revoked the leave of absence, previously granted to employee Dallas Kinser pursuant to a collective-bargain- APPALACHIAN POWER COMPANY ing contract, because the activities he pursued on behalf of certain unions were not included in the contractual provision authorizing such leave; and (2) whether the Board should defer to the grievance procedure prescribed in said contract. Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. AS TO JURISDICTION Respondent, a Virginia corporation , is engaged in generating, transmitting, and selling electrical power produced at its plants located in various parts of the State of West Virginia, including the plant involved herein at Logan, West Virginia. During the year preceding the issuance of the complaint in this case Respondent's gross volume of business exceeded $250,000, of which in excess of $50,000 was derived from sales to customers outside the State of West Virginia. I find that Respondent is engaged in commerce as defined in Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction over Respondent in this proceeding. II. THE LABOR ORGANIZATION INVOLVED I.B.E.W., the Charging Party herein, and its local unions mentioned in Respondent's Exhibit 1 are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES On September 28, 1968, Respondent entered into a single collective-bargaining agreement, effective October 1, 1968, and terminating September 30, 1971, with 10 local unions of I.B.E.W. Each of said local unions was recognized respectively as the exclusive bargaining agent of a specific unit in various units, all appropriate under Section 9(b) of the Act, at the following locations: Local 938, for Logan, W. Va. Local 978, for Charleston, W. Va. Local 1082, for Cabin Creek, W. Va. Local 1119, for Huntington and Point Pleasant, W. Va. Local 1182, for Lynchburg, Va. Local 1376, for Roanoke and Fieldale, Va. Local 1484, for Kanawha River, W. Va. Local 1991, for Glen Lyn, Va. Local 2175, for Clinch River, Va. Local 2235, for Beckley, W. Va. At all times since October 1, 1968, each of said local unions has been the exclusive representative of the employees in the various designated units. The unit at Logan, West Virginia, represented by Local 938, includes All regular employees in the Logan district, excluding all surveyors, rodmen, guards, technically trained men, accounting and sales employees, janitors (other than plant janitors), clerical employees, and supervisory employees. Article 1.7 of said contract recognizes a System Council, consisting of representatives of each of the above locals, as the representative of each of said locals in all matters referred to said Council by said locals pertaining to said 581 ,contract. Article X of the foregoing collective-bargaining agree- ment in pertinent part provides that: ARTICLE X LEAVES OF ABSENCE 10.1 When the Company's business conditions permit, an employee may be granted a leave of absence for a period not exceeding one (1) year, during which he shall continue to accumulate seniority; provided, however, that for a cause determined sufficient by the Company such leave may be granted for not more than one (1) additional year. No leave may be granted for an employee to take employment arranged by or consent- ed to by the Company, and except as provided in Section 10.3. 10.2 If it is claimed that the Company has been guilty of discrimination in refusing or allowing a leave of absence, such alleged discrimination may be made the subject of a grievance. 10.3 An employee who is selected as representative of the System Council of the Local Unions to serve the interests of the System Council or Local Unions in matters pertaining to the bargaining units may, after reasonable notice to the Company, be granted a leave of absence without pay for two (2) years, and additional two (2) year periods thereafter if mutually agreed upon by the Company and the Union. He shall continue to accumulate seniority and service through- out the leave of absence. Upon termination of his duties he shall be reinstated in his former position, with all rights and privileges, provided he is then still qualified and capable of performing the duties of such job. 10.4 All leaves of absence shall be issued in writing and state the condition thereof. A copy of such leave shall be kept on file by the department head and a copy furnished to the employee and a copy to the Union." On October 10, 1969, Dallas Kinser, an employee of Respondent at its Logan, West Virginia, location and a member of Local 938, wrote to Respondent requesting a leave of absence, pursuant to sections 1 and 3 of said article X, for l year "to accept assignment as a full time representative for Local Union 938, Local Union 978, and Local Union 1119 of the [I.B.E.W.]." Respondent replied by letter dated November 5, 1969, that it was not Respondent's practice to grant an employee personal leave to take employment elsewhere, and suggest- ed that he submit a request to obtain leave "for 2 years to serve the interests of the . . . Local Unions in matters pertaining to the bargaining units." As a result, Kinser in writing on December 13, 1969, requested a leave of absence for 2 years beginning January 5, 1970, "to accept assignment as a full time representative for" Locals 938, 978, and 1119 of the I.B.E.W. By letter dated January 2, 1970, Respondent granted Kinser's request of December 13, 1969, subject to five conditions there recited. None of said conditions referred to the manner in which Kinser should use his leave of absence. Thereafter, on January 5, 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1970, Dallas Kinser commenced his 2-year leave of absence. Prior to commencing his leave of absence Kinser spoke to John R. Larew, Respondent's personnel director, concerning it. Thus some time in the summer of 1969 Kinser told Larew that he, Kinser, had been approached by Locals 938, 978, and 1119 about a job as their absence in order to obtain it. Larew assured Kinser that this could be done and promised to assist Kinser in obtaining such leave. In September 1969, after said offer became firm, Kinser again spoke to Larew about it. On this occasion Larew stated that Respondent was considering offering Kinser another position outside the bargaining unit and suggested that Kinser ask for a "leave in ninety day increments" because Kinser would be offered said position in 90 days. But Kinser rejected this proposal, insisting that he had pledged himself "to the union on a one-year basis." However he did mention that he would stipulate that his leave "might be terminated at any time by mutual consent." Larew agreed to this latter condition. After this Kinser inquired occasionally of Larew as to when the leave would be granted. Each time Larew replied that he was "working on it and trying to help" Kinser. On January 2, 1970, Kinser also spoke to John Hammer, Respondent's wages and salary supervisor about the five conditions mentioned in the letter granting Kinser a leave. During this conversation Hammer alluded to the fact that Respondent was still considering Kinser for employment outside the bargaining unit in a supervisory or commercial department capacity. At no time during the foregoing conversations with Larew and Hammer did Kinser mention that he would engage in organizing activities during such leave. In late 1969 Kinser also spoke to James B. White, Respondent's Logan and Williamson division manager. During the discussion of what Kinser would do during his leave, Kinser asserted that he intended to continue certain employee activities, including attending company safety meetings. But White protested that Kinser, while on leave, could not attend such-company safety meetings. (Item 5 in Respondent's letter of January 2, 1970, granting Kinser's request for a leave, enumerates as one condition of such leave, "You will no longer attend Company safety meetings.") At none of the above talks which Kinser had with Larew, Hammer, or White was Kinser informed that he would not be permitted to engage in organizing activities during his leave. On Monday, January 5, 1970, Kinser began his leave. While on leave Kinser visited various locals of I.B.E.W. at Logan, Huntington, and Charleston, West Virginia, and the management of Respondent with whom said locals had a bargaining relationship. Among other things he attended and conducted grievance meetings for said three locals, visited worksites to observe whether they were safe places to work, talked with management concerning safety problems, and continued unions. The foregoing duties, all pertaining to matters in the bargaining unit, required "a majority" of Kinser's working time; i.e., between 30 and 40 or more hours each week . In addition, Kinser continued to perform his duties as secretary -treasurer of the Systems Council. During this time Kinser also engaged in organizing activities, seeking to organize unrepresented groups at Huntington. In fact a representation petition was filed by I.B.E.W. to represent such groups at Huntington. In addition, Kinser engaged in organizing activities at the Louisa and Ashland plants of Kentucky Power Company. Both Kentucky Power Company and Respondent are subsidiaries of American Electric Power. At the Hunting- ton, Louisa, and Ashland plants Kinser generally per- formed his organizing work off the premises after 5 or 6 p.m. in the evening, because employees there worked until that time, and because he was not permitted to enter said plants to attempt to organize the employees. However he spent about 100 hours during working hours in the daytime in 6 months carrying out duties connected with his organizing functions . Such action included attending NLRB hearings relating to representation petitions and attending elections held on such petitions. One of these elections, held at the Big Sandy plant of Kentucky Power, was won by the I.B.E.W., and it was certified as the representative of said employees on June 1, 1970. During March, April, and May, 1970, Kinser also participated in organizational activities for I.B.E.W. by personally soliciting (a) unrepresented employees of Respondent at its Huntington, West Virginia, office, (b) unrepresented employees of Kentucky Power Company at its Big Sandy Plant in Louisa , Kentucky, and (c) unrepresented employees of Kentucky Power Company in Ashland, Kentucky, to join the Union. Elections at Ashland and Big Sandy were won, while that at Hunting- ton was lost, by the Union. On March 18, 1970, Respondent sent a notice to its unrepresented employees in Huntington, West Virginia, in part stating that Kinser is spending a good portion of his [leave] time attempting to expand union organization among unorganized employees on Appa- lachian and sister company properties. This type of activity was not envisioned by Appalachian manage- ment when he was granted leave. The fact that Mr. Kinser is on leave has been held by some to be an indication that management looks with favor upon his activities. ,A somewhat similar notice was sent by Kentucky Power Co. to its employees. See General Counsel's Exhibit 2 :dated April 9, 1970. On May 8, 1970, Kinser sent a letter to employees of Kentucky Power's Big Sandy plant urging employees there to vote in an election soon to be held by NLRB. On May 21, 1970, after the Union won the above election, it posted a notice on Respondent's bulletin board stating that the Union won said election and asserting that "Big Sandy Plant is the first property of Kentucky Power Company to choose union affiliation. . . . [This] organizing campaign was conducted by [Kinser]." Thereafter, on June 2, 1970, Respondent's personnel director, has been under review and I am convinced that the leave granted you as well as your activities while on leave are both contrary to the letter as well as the intent of APPALACHIAN POWER COMPANY 583 the provisions of the Agreement [between Respondent and 10 locals of I.B.E.W.]. Accordingly your leave of absence is revoked effective July 1, 1970." A copy of this letter was sent by Larew to James B. White, manager of Respon- dent's Logan and Williamson division, J. C. McIntosh, Respondent's director' of labor relations, and O. C. Hall, manager of Kentucky Power's Ashland division. Kentucky Power's personnel director, Sause, had previously com- plained to Larew of Kinser's organizing activities among its employees. Upon receiving said letter Kinser spoke to Respondent's wage and salary supervisor, Hammer, concerning said revocation. During this conversation Kinser charged that "somebody up there" did not like the Union's victory at Big Sandy but did not object to its defeat at Huntington. Hammer replied, "You're right about that." That same evening Larew telephoned Kinser that Kinser's "activities had been outside the scope of the leave" and that "there was too much pressure from the other companies," including Kentucky Power, which caused Kinser's leave to be canceled. Larew added that such activities were causing "a strain in relations" with other companies and then suggested that Kinser proceed in accordance with the grievance procedure of the contract. Thereupon Kinser asked Larew to expedite the processing of his grievance and, if possible, to have it "presented" prior to the expiration of the termination of his leave on July 1, 1970. To this Larew agreed and so promised. About June 15, 1970, while Kinser and Union Interna- tional Representative Bledsoe discussed said revocation with Larew, the latter reasserted that it was prompted by Kinser's contribution to "organizing activities on Kentuc- ky Power Company property." The decision to terminate said leave was made by Larew and Respondent's executive vice president, W. S. White, according to Larew. On June 3, 1970, Kinser wrote to the employees of Kentucky Power Company's Ashland division inviting them to attend a union meeting on June 9, 1970, at 7 p.m., "to discuss matters of interest to you concerning the representation election [about to be held by the N.L.R.B.] for Ashland Division employees." As noted above, this election, held on June 10, 1970, was won by the Union. Thereafter, the Union posted a bulletin on the Company's bulletin board proclaiming the Union's victory and notifying said employees that "This campaign was con- ducted by D. A. Kinzer, Business Manager of Local Unions 938, 978, and 1119 in his spare time after 3:30 p.m.,, On June 8, 1970, Kinser filed a grievance protesting the revocation of his leave of absence. This was denied. Kinser then proceeded with his grievance to the fourth step of the grievance procedure, and a hearing was held thereon on June 15, 1970. On July 7, 1970, Respondent denied the grievance at this fourth step, and the Union then referred the matter to arbitration. At said fourth step said grievance was rejected on the ground that "It has come to our attention that the grievant has been performing duties beyond the scope of matters pertaining to the bargaining units of Local Unions 938, 978, and 1119 of the I.B.E.W., (although the leave of absence was granted initially on the basis of grievant's letter request of December 13, 1969, which stated specifically he was going to serve these locals." During the hearing at the fourth step Respondent insisted that Kinser's leave "was only for serving the bargaining unit and that organizing activities were outside the scope of the service to the existing bargaining unit. . . . And that's why the leave was revoked." In the meantime, on June 30, 1970, Kinser wrote to Larew stating that he, Kinser, would return to work for Respondent on July 2, 1970, but was "not abandoning any rights whatsoever or any legal proceedings in support of those rights." He did report to work on July 2, 1970. On August 7, 1970, Respondent wrote to the Union that the former had selected J. C. McIntosh as the company's arbitrator and requested that the Union's arbitrator contact McIntosh at American Electric Power Service Corporation in New York City to arrange a time and place for a hearing on Kinser's grievance. By letter dated August 11, 1970, the Union notified Respondent that the former had designated Lucian M. Bledsoe, International repre- sentative, as its arbitrator on said grievance. On August 18, 1970, McIntosh and Bledsoe met to select a neutral arbitrator on Kinser's grievance, but were unable to agree on one. Thereupon Bledsoe offered to undertake to submit the issue of a neutral arbitrator to the American Arbitration Association. But he had not done so by the date of the trial herein. However, at the trial of the instant case on October 21, 1970, Bledsoe testified that "as of" that morning he was "withdrawing" the reference of Kinser's grievance to arbitration "and the case will not be taken before the Arbitration Association." The foregoing findings are derived from stipulations of the parties, numerous documents in evidence, and virtually undisputed oral testimony. In a few minor instances where a variation exists between the oral testimony of Respon- dent's witnesses and Kinser, I have credited Kinser. Concluding Findings and Discussion Initially it is desirable to determine whether the Board should not consider this case on the merits but should await the outcome of the grievance procedure. It is my opinion, and I rule, that it is significant that steps short of arbitration have been utilized in processing Kinser's grievance. Cf. International Harvester Company, 138 NLRB 923. This is because the Board has held that it will not defer to grievance procedures unless they have resulted in an arbitration award. Spielberg Manufacturing Company, 112 NLRB 1280. See Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410, 1415-16. Cf. Beacon Piece Dyeing and Finishing Co., Inc., 121 NLRB 953, 961-962. Since arbitration has been abandoned by Kinser, I find that there is no occasion to defer this case until an arbitrator renders his decision. Cf. Simpson Lee Paper Company, 186 NLRB No. 109 (TXD). The fact that the grievance procedure was availed of to the fourth step should not cause the Board to refuse jurisdiction here. For said fourth step called for, and resulted in, a decision by Respondent, an interested party. Patently a decision by a party to a proceeding should not inhibit the Board from disregarding said decision in an unfair labor practice case. A second preliminary question is whether this case involves no more than a breach of contract based on a 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD construction of its terms. If it does, then the Board is not the proper forum to settle conflicting contract interpreta- tions. United Telephone Company of the West, 112 NLRB 779, 781-782. However, when a breach of contract also amounts to an unfair labor practice the Board not only will accept jurisdiction of the case but will, to the extent necessary to resolve the unfair labor practices, construe pertinent provisions of a contract. N.L.R.B. v. C & C Plywood Corporation, 385 U.S. 421, 428; George E. Light Boat Storage, Inc., 153 NLRB 1209, fn. 1; See Smith v. Evening News Association, 371 U.S. 195, 197; Carey v. Westinghouse Electric Corp., 375 U.S. 261. It is my opinion, and I find, that this case presents the question of whether an unfair labor practice has occurred, that thereby more than a contract interpretation question is involved, and, therefore the Board will entertain the present case in order to decide the question of whether an unfair labor practice has been committed. See N.L.R.B. v. Acme Industrial Co., 385 U.S. 432; N.L.R.B. v. Strong Roofing Co., 393 U.S. 357. Cf. Century Papers, Inc., 155 NLRB 358, 361-362. In my opinion, Jos. Schutz Brewing Company, 175 NLRB No. 23, is distinguishable because there, unlike here, the employ- er's action was not motivated by antiunion considerations. The next question is whether article 10.3 of the collective-bargaining contract, relating to leaves of absence "to serve the interests of the System Council or Local Unions in matters pertaining to the bargaining units," circumscribes Kinser's organizing activities (a) outside normal working hours, or (b) during normal working hours, or both. A. As to Nonworking Hours Ordinarily an employer may not regulate or control an employee's union activities during such times which are not included in the employee's working day. Such a rule constitutes an impediment to self-organization and is therefore discriminatory. Thus an employer may not enforce a nonsolicitation rule so broad that it forbids solicitation on behalf of a union during nonworking time; Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793. This is because solicitation and other forms of union activity during nonworking time are safeguarded by the Act and may not be interfered with or limited by an employer. Citation of authority upon this branch of the case would be supererogatory. Hence Respondent could not restrict Kinser's organizing activities during such time as he was not on leave if he engaged in them outside of his working hours. Nevertheless a bargaining agent may forego some statutory rights of employees by subscribing to a waiver thereof in a collective-bargaining contract. An example thereof is the giving up of the right to strike. I assume, without deciding, that such agent may surrender an employee's right dunng nonworking hours to engage in organizing activities by an appropriately worded contrac- tual provision, whether the employee is on leave or not. But when a right is so waived the text of the contract withdrawing the same must be clear and unambiguous, for a waiver is the intentional relinquishment of a specific and known right. Beacon Piece Dyeing and Finishing Co., Inc., 121 NLRB 953, 957, 960. In my opinion the text of the contract provision in question relating to leaves of absence does not expressly restrict union activities during nonwork- ing hours, regardless of whether an employee is on such leave or not. Hence I find that such provision does not attain the stature of a waiver of an employee's right to engage in organizing activities during nonworking hours while on leave. Accordingly, I find that no contractual provision restricted or controlled Kinser's statutory right to engage in union activities dunng nonworking hours while on leave. Consequently, Respondent lacked authority lawfully to cancel his leave on the ground that he participated in such activities dunng nonworking hours. Cf. Harvey Prober, Inc., 146 NLRB 683, 689. While United Aircraft Corpora- tion, 144 NLRB 492, 494, is distinguishable, it does suggest that an employee is free to attend to union business during nonworking hours. B. As to Working Hours It is well established that an employer may forbid organizing activity by his employees during working hours on behalf of a labor organization. If he adopts a rule to that effect he may take disciplinary action against employees who transgress its prohibitions. This is because "working time is for work," Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 803, fn. 10, and an employer dunng such working time. See also Omni Spectra, Inc., 186 NLRB No. 93. Of course an employer may waive his right to insist that working time is for work and thus permit employees to engage in some form of union activity during such time. Such waiver often is accomplished by means of a provision therefor in a collective-bargaining contract. But, since a waiver is a deliberate abandonment of a specific right, only those activities may be engaged in which are expressly described in the renunciation provisions of the contract. Activities not mentioned in such contract will not be considered to have been sanctioned by said instrument. The foregoing applies to contractual provisions approv- ing union organizing activities during working hours normally devoted to the employer's business. It is my opinion, and I rule, that similar principles govern contrac- tual provisions, as in the instant case, which grant employees a leave of absence "to serve the interests of [a recognized labor organization) in matters pertaining to the bargaining units." In other words, such quoted language constitutes a partial waiver of the employer's right to control employees during the hours they should be working for him. As a waiver, however, such text may not be extended to empower the commission of acts not fairly comprehended within, or contemplated by, its terms. In my opinion Respondent's waiver in said contractual provision, reasonably construed, does not cover organizing activities performed by Kinser during those hours of the day when he would generally be working for Respondent. Consequently, his engaging in such activities during such hours constitutes unauthorized conduct to which Respon- dent can put a stop by annulling the leave theretofore conferred upon him. Since Kinser admittedly discharged some organizing functions during working hours Respon- APPALACHIAN POWER COMPANY dent could have canceled his leave for such deviation from the terms of the leave. It may be that Respondent would have abrogated Kinser's leave solely because he had abused the privileges attached to said leave by engaging in organizational acts during workers' hours. But it did not cancel his leave only on this ground . Admittedly Respondent nullified Kinser's leave because of Kinser's conduct in organizational pursuits both during and outside normal working hours. The question then is whether invalidating Kinser's leave for engaging in such work both during and outside working hours constitutes a discriminatory withdrawing of such leave prohibited by the Act. While I have been unable to find adjudications answer- ing the question posed in the preceding paragraph, I believe that decisions in analogous situations point the way as to the proper conclusion in the instant case . Those cases hold that where an employee has been discharged, even though a lawful or valid cause may exist therefor, if his termination was inflicted substantially because of his activity protected by the Act such termination is discrimi- natory and transgresses the Act. Betts Baking Co. v. N.L.R.B., 380 F.2d 199 (C.A. 10). See N.L.R.B. v. Lexington Chair Co., 361 F.2d 283, 295 (C.A. 6). "The mere existence of valid grounds for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicated solely on those grounds, and not by a desire to discourage union activity- N.L.R.B. v. Symonds Manufacturing Co., 328 F.2d 835, 837 (C.A. 7). "In order to supply a basis for inferring discrimination, it is necessary to show that one reason for the discharge is that the employee was engaging in protected activity. It need not be the only reason but it is sufficient if it is a substantial or motivating reason , despite the fact that other reasons may exist." N.L.R.B. v. Whitin Machine Works, 204 F .2d 883, 885 (C.A. 1). Accord: N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5). The doctrine enunciated in the foregoing cases relating to discharges seems to me to be applicable to cancellations of leaves of absences . Stated in another way, when an employee's leave of absence is canceled for a discriminatory reason , even though a valid cause exists for its termination , such cancellation violates the Act if it was imposed substantially because of his activities protected by the Act. I also recognize, and rule as a matter of law, that member- ship in, or activities on behalf of, a labor organiza- tion, or both, do not immunize or shield an employee from discipline for cause . Metals Engineering Co., 148 NLRB 88, 90; Mitchell Transport, Inc., 152 NLRB 122, 123, affd. sub nom. Hawkins v. N.L.R.B., 358 F.2d 281, 283-284 (C.A. 7). I have been guided by these principles in disposing of the instant case. When gauged by the above standards I am persuaded, and find, that a substantial or motivating reason for denying continuance of Kinser's leave is his organizational activity during nonworking hours . I am convinced, and find, that this ultimate finding is not undermined by the fact, which I find, that another (but subordinate) reason 585 existed; i.e., carrying on some of such activities during working hours, which may also have contributed, in lesser part, to the decision to terminate his leave. That the overriding consideration to destroy Kinser's leave was his organizational work among the employees of Kentucky Power Company during nonworking hours is derived from a critical scrutiny of the record. For example, it is admitted that Kentucky Power protested to Respon- .dent that Kinser was organizing Kentucky's employees, and that this not only substantially induced Respondent to .seriously appraise such conduct by Kinser, but also Respondent wrote to its employees complaining that Kinser's said conduct "was not envisioned by Appalachian management when he was granted leave." See General Counsel's unnumbered exhibit dated March 18, 1970. Further, in revoking Kinser's leave Larew wrote to him that "this entire matter" of organizing led to the decision to adopt said revocation. Patently " this entire matter" includes Kinser's efforts at Kentucky Power. Respondent argues, however, that Kinser devoted about 10 percent of his working time to organizational efforts and that this cannot be denominated as de minimis. As found above, such efforts on working time did enter into the decision to end Kinser's leave. But I find that the overriding reason for such decision was his activities during nonworking hours. In this connection I find that Respondent entertained antiunion hostility and that such entered into the decision to cancel Kinser's leave. Such animus, of course, is sanctioned by Section 8(c) of the Act; but it may be considered in evaluating the. reasons ,prompting Respondent to terminate Kinser's leave. Maphis Chapman Corp. v. N.L.R.B., 368 F.2d 298, 304 (C.A. 4); N.L.R.B. v. Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5). "Direct evidence of a purpose to discriminate is rarely obtained, especially as employers acquire some sophistica- tion about the rights of their employees under the Act; but such purpose may be established by circumstantial evidence." Corrie Corporation v. N.L.R.B., 375 F.2d 149, 152 (C.A. 4). Accord: Hartsell Mills v. N.L.R.B., Ill F.2d 291, 293 (C.A. 4); N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 698 (C. A. 8). "Nowadays it is usually a case of more subtlety." N.L.R.B. v. Neuhoff Bros., 375 F.2d 372, 374 (C.A. 5). I have found such purpose to discriminate upon evaluating the entire record notwithstanding an absence of direct evidence of such a design. Accordingly, I find that Kinser's loss of his leave was prompted by discriminatory motivations and that cancel- ing his leave violates Section 8(a)(1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activity of Respondent set forth in section III, above, found to constitute an unfair labor practice, occurring in connection with its operations described in section I, above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY As Respondent has been found to have engaged in an unfair labor practice, I shall recommend that it cease and desist therefrom and that it take affirmative action, as set forth below, designed to effectuate the policies of the Act. 'In view of the finding that Respondent discriminated against Dallas Kinser by canceling his leave of absence, it will be recommended that Respondent be ordered to restore such leave to him, if he shall so request, for a period of 2 years less the actual time he has already been on leave since January 5, 1970. It will also be recommended that Respondent post appropriate notices. The conduct of Respondent in my opinion does not portray a general opposition to the Act. Consequently, I find that the cease and desist portion of an Order is appropriate which is limited to enjoining the activity found to be an unfair labor practice. Since such aspect of the remedy adopted should be commensurate with the infrac- tion of the Act found herein, relief more extensive in scope is not warranted, and I so find. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. I.B.E.W. and its 10 local unions mentioned in Respondent's Exhibit 1 are labor organizations within the meaning of Section 2(5) of the Act. 2. Respondent is an employer within the meaning of Section 2(2), and is engaged in commerce as defined in Section 2(6) and (7), of the Act. 3. By discriminating in regard to Dallas Kinser's leave of absence (said leave being a term or condition of employment), thereby discouraging membership in I.B.E.W. and its locals mentioned in Respondent 's Exhibit 1 (the same being labor organizations ), Respondent has engaged in an unfair labor practice condemned by Section 8(a)(3) and (1) of the Act. 4. The foregoing unfair labor practice affects com- merce as defined in Section 2(6) of the Act. [Recommended Order omitted from publication.]