Pacific Gas & Electric Co.

PACIFIC GAS & ELECTRIC CO. Pacific Gas & Electric Co. and Joseph C. Green. Case 31-CA-6790 February 6, 1978 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE On October 13, 1977, Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party and the General Counsel filed answering briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respon- dent, Pacific Gas & Electric Co., San Francisco, California, its officers, agents, successors, and as- signs, shall take the action set forth in the said recommended Order, as so modified: Substitute the following for paragraph 2(a): "(a) Post at its Midway substation copies of the attached notice marked "Appendix. " 6 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by an authorized representative, shall be posted by Re- spondent immediately upon receipt thereof, and be 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 that said notices are not altered, defaced, or covered by an other material." Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Respondent has excepted to the Administrative Law Judge's recom- mendation that Respondent be ordered to post the notice to employees at 234 NLRB No. 114 each of Respondent's stations and substations where it has employees covered by its collective-bargaining agreement with International Brother- hood of Electrical Workers, Local 1245. We find merit in Respondent's contention that, in the absence of evidence of violations at other locations within the unit, or evidence that the violation found had an impact on employees at other locations, the posting requirement should be limited to the location where the unfair labor practice occurred. Dover Corporation, Norris Division, 211 NLRB 955, 959 (1974); Puerto Rico Distillers, Inc., 218 NLRB 729 (1975); Reads Inc., 228 NLRB 1402 (1977). DECISION STATEMENT OF THE CASE STANLEY GILBERT, Administrative Law Judge: Based on a charge filed by Joseph C. Green, an individual, on February 1, 1977, the complaint herein was issued on March 24, 1977. The complaint alleges that Pacific Gas & Electric Co., hereinafter called Respondent or PG & E, violated Section 8(aXl) of the Act on three occasions. Respondent, by its answer, denies that it engaged in conduct violative of the Act as alleged. Pursuant to notice, a hearing was held in Bakersfield, California, on June 14, 1977. Appearances were entered on behalf of all parties and briefs were timely filed by said three parties on July 19, 1977. Based on the entire record in this proceeding and my observation of the witnesses as they testified, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent admitted the following allegations in the complaint: (a) Respondent is now, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of California, with an office and principal place of business located in San Francisco, California, where it is engaged in providing gas and electrical service as a public utility; (b) Respon- dent, in the course and conduct of its business operations, has an annual volume of business in excess of $250,000 and purchases goods or services, valued in excess of $50,000, from suppliers located outside the State of California; (c) Respondent is now, and has been at all times material herein, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED As is admitted by Respondent, the International Broth- erhood of Electrical Workers, Local 1245, herein called the Union, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Iii. THE UNFAIR LABOR PRACTICES The complaint alleges that Nayland (Bud) Barton, a foreman, and an admitted supervisor and agent of Respon- dent, engaged in conduct violative of Section 8(a)(1) of the Act by the following conduct: (a) On or about November 18, 1976, at the Mid-Way Substation, told an employee 739 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that another employee would not receive a promotion because of filing a grievance, and that any union steward who filed grievances would be terminated or transferred; (b) on or about December 30, 1976, at the Mid-Way Substation, told an employee that any troublesome union steward or employee would be terminated or transferred at the first opportunity; (c) on or about January 17, 1977, in a truck cab, told an employee that an employee or union steward who caused a problem would be discharged. It is further alleged that the above-described conduct interfered with, restrained, and coerced Respondent's employees in the exercise of their rights guaranteed in Section 7 of the Act. The "union steward" referred to in the above allegations is the Charging Party, Green. There is no dispute that Green was a steward for the above-mentioned Union at the time material herein. Apparently, as background information, General Coun- sel elicited testimony from Green with regard to a conver- sation he had with Barton in early July 1976, when Green was introduced to him as the new job steward by Wayne Weaver, the Union's business representative.' Green's testimony as to said conversation is as follows: A. We were talking mainly about the union and the relationship, the union on the job, and during the course of the conversation, Mr. Barton - well, I had been talking to him and I had explained some problems on other jobs and how shop stewards, if they were to fulfill their duties, were transferred out and - for doing their job, shop steward duties and during the course of the conversation, Mr. Barton, at that time, had said, "Well," he said, "if somebody - The job steward on the job, if they give me too much trouble, at the time," he says, "when transfers come in," he says, "I am going to see that that person is on the list." He says, "It is understandable that if a person is causing somebody problems that they will transfer them out." Barton testified that he had no recollection of an incident in which Weaver introduced Green to him, but denied that he ever made a statement to anyone about transferring out stewards who gave him too much trouble. Weaver, who was called as a witness by Respondent, denied that Barton made such a statement when he introduced Green. Al- though it is quite possible that Weaver is biased against Green, because Green filed charges with the Union against Weaver, nevertheless, I am of the opinion that Green's above-quoted testimony should not be credited based on Weaver's testimony which is credited and the unlikelihood that Barton would have made such a damaging statement in the presence of a union representative. It appears that PG & E has a number of stations out of which employees work and that on occasion they can be transferred from one station to another. It further appears that while Barton does not have the authority to transfer an employee from his station he does have the authority to effectively recommend such transfers. It further appears I The incident is not alleged in the complaint and, although the General Counsel refers to it in his bnef, he does not assert that it be considered as a violation of the Act. 2 At the hearing, it was stipulated that the practice in accordance with the collective-bargaining agreement is to pay any employee at the higher that during the entire time material herein Green was assigned to the station which Barton supervised. Green credibly testified that on November 17, 1976, two or three fellow employees told him that Chad Martin, a helper, was performing work out of and above his classifi- cation. 2 Green further testified that he walked from his work station to a tool pickup van to get some tools, and he observed Martin doing some welding, a task not encom- passed in the regular duties of a helper. On cross-examina- tion, Green testified that he observed Martin doing the welding about 10 a.m., but according to Martin's credited testimony, as well as other credited testimony, Martin did not start welding until some time after I p.m. While the time Martin did the welding on that day is not material to the issues before me, Green's discredited testimony as to the time he observed the welding casts some doubt in my mind of the accuracy of Green's recollections in other portions of his testimony. At the end of the day, Green asked Martin if he intended to put the temporary upgrade on his timecard, and Martin stated that he did not. Green told Martin that he would talk to him about it the next day, and Martin said that he would discuss it with his supervisor, Jim Popeney. The next morning, Green asked Martin if he had recorded the temporary upgrade on his timecard and Martin replied in the negative. Green then asked Popeney if Martin was going to receive a temporary upgrade for the welding work he had done the previous day. When Popeney said Martin was not, Green asked to talk to Barton. Shortly thereafter Barton and Green had a conversation. Green testified thereto as follows: While we were in the tool van, Bud Barton and I sat at the table in there. I brought forth to him what the problem was and he started telling me that he thought it was kind of trivial and I was nitpicking and proceeded to say that if I continued to bring up these minor, trivial problems on the job that I was going to get the workers against me and that they would draw up a petition and have me removed from shop steward and that he was going to be forced to take away certain economic benefits that he had been giving them or certain favors that he had been giving the workers in the past that he was going to take them away from them.3 Martin then joined Barton and Green and the three went out into the field and spoke with Popeney. As a result of the conference between the four, the grievance was settled and Barton agreed to pay Martin for "two and-a-half hours upgrade time." Popeney credibly testified to a statement made by Barton (apparently immediately thereafter) as follows: He [Barton] told Chad Martin that from now on there would be no more working out of his classification. That didn't only mean him but it was everybody on the wage scale for any work beyond 2 hours that is encompassed by a higher work grade. 3 The quoted testimony is uncontradicted and is credited. Moreover, Barton admitted that, at least on one occasion, he accused Green of nitpicking. 740 PACIFIC GAS & ELECTRIC CO. crew. That they had a specific job to do and they were supposed to do that job only. It does not appear that General Counsel contends that Barton's above-quoted statement was violative of the Act and I am of the opinion that it was not made in reprisal of any protected activity but rather to avoid similar problems in the future and must have been reasonably so under- stood. Shortly thereafter Green went to work in the "control building," in the "230 yard" for the Midway substation. It appears that the building consists of a ground floor and a basement and that it contains a generator. It further appears that about 9 or 9:30 in the morning of the same day as the above-described incident Barton and Green had a conversation in the ground floor of said building. Green's testimony with regard thereto is as follows: A. Mr. Barton came in and he was talking to me and he was bringing out again that he thought it was a trivial matter that I brought up the issue on the temporary upgrade and he brought out that he had paid other persons before that had worked three or four hours; that he had paid them a full eight-hour day's worth of pay and then he went on and - came in and started saying that he was going to make sure that Chad Martin never received another upgrade as long as he was on the job, the temporary one, and that he was going to keep him as a helper and that he felt that Chad and I had combined together on this grievance. I told Mr. Barton at that time that Chad and I had not talked about it at all and that I had taken it upon myself, as the job steward, to enforce a contract on a violation that I had seen. He said that he didn't believe that, that it went too smoothly and if Chad - if he wouldn't have been in with me that he should have lied and said that he worked less than two hours. Then Mr. Barton went ahead and at that time told me that if any shop stewards that cause him too much trouble on the job that he would get rid of them. Martin testified that he was in the basement of the building and overheard part of the conversation between Barton and Green. Martin's testimony is as follows: A. Well, I don't remember all of it because I was down there and I had an industrial vacuum cleaner and I was vacuuming the place up and it kind of got clogged and I turned it off and just then, I heard - what I did hear for sure was I heard my name mentioned and I just went right underneath where they were talking, right underneath where they were talking and heard, "Well, I will keep Chad a helper as long as possible." And I heard him telling Joe, "He is a nitpicker and a troublemaker." You know, partial statements. I just wanted to know what my name - you know, because I am not - When I heard my name, I just perked up, you know. That is about all I really heard is to keep me a helper as long as possible and Joe was a troublemaker and was nitpicking on the job, and that is basically what I heard and I just went - I said, "To hell with it." The rest of it didn't involve me, so I said, "To hell with it," and just went back to my duties. Q. How is it that the conversation was - you were able to listen to the conversation despite the fact that they were on one floor and you were on another floor? A. Well, there is a little stairway there and there is a railing. They were right on the railing and I was - I just went right underneath them. They were just like standing right above me. Martin further credibly testified that he was transferred about 2 weeks later and that before he left he had a conversation with Barton in which Barton accused him of being "in cahoots" with Green with regard to Green's grievance with respect to his (Martin's) welding. Barton was not questioned in any detail about the conversation in the "control room" but he denied that he ever stated to Green "that Martin would never get another upgrade," or that he made any statement about something happening "to a shop steward who caused too much trouble on the jobs" but admitted that at one time or another he accused Green of "nitpicking." Also, he admitted that he made a statement at one time to Green as follows: "Let us face it, Joe, I will do everything within my power to eliminate any problems on my job." While Barton candidly testified on cross-examination that Green occupied "too much of' his time, ostensibly in carrying out his job as union steward, nevertheless I find that Green and Martin were convincing witnesses in their above-quoted and outlined testimony and, therefore, said testimony is credited. Based on said credited testimony I find that Respondent, through Barton, violated Section 8(aXl) of the Act by threatening reprisals against a job steward and an employee because they exercised their protected rights of seeking enforcement of a provision of the collective-bargaining agreement between Respondent and the Union. With respect to the second allegation following is a summary of events based on credited evidence. On the morning of December 29, 1976, Green, Lee Guidry, an apprentice electrician, L. L. Mcintyre, and a driver were involved in making an emergency installation. Green and Guidry were working about 20 feet above the ground out of buckets extended from a truck, while McIntyre was on the ground apparently acting as leadman. It appears that there was a history of bad feeling between McIntyre and Guidry, a black, because of the former's racist attitude. It further appears that there was some controversy between McIntyre and the two in the buckets with respect to the work they were doing during which McIntyre told Guidry to "shut his fat bottom lip." Additionally, it appears that both Guidry and Green considered the remark to be intended as a racial slur. Green then had the driver of the truck lower his bucket and arranged to have a grievance meeting with Barton which was held after lunch. During the meeting Barton attempted to ascertain what had happened. McIntyre admitted making the remark, but it appears that he explained that it arose out of difficulty he was having in getting the job completed because Guidry and Green were working too slowly. Barton admonished McIntyre not to make any racist remarks and turned to McIntyre's explanation that Green and Guidry "weren't 741 DECISIONS OF NATIONAL LABOR RELATIONS BOARD doing the job." He stated that they were both slow and could learn from McIntyre, who was more experienced and acting as their leadman. On the following day, December 30, Green complained to Barton about his evaluating his work performance before fellow employees and Balton told him that he had had complaints about his (Green's) work from others and Green questioned whether it was his (Barton's) common practice to elicit opinions of employees from fellow employees and evaluate them in front of others to which Barton replied that it was, and added, "That anybody that gives him any problem on the job, he will transfer the first opportunity." According to Green's testimony he then told Barton he was going to file a grievance against him. It appears from Green's own testimony that the threat of transfer was not directed at some protected activity of Green, but rather was a general statement which could not have been reasonably understood to have referred to his activity the previous day as a union steward but more reasonably to the effectiveness of employees in their work. Consequently, I am of the opinion that the General Counsel has failed to prove by a preponderance of the evidence the second above-mentioned allegation. With respect to the third allegation following is a summary of the credited testimony relating thereto. On January 17, 1977, Green needed to go to another yard to get his tools, and Barton drove Green there in his (Barton's) pickup truck. While they were alone in the truck, Green began talking about Respondent's practice of transferring out employees. Barton credibly testified as follows: He [Green] brought up the question of transfers. He said, "I know how PG & E works. They transfer a guy that causes any problems." And I retaliated, if you will, with the statement, "Let us face it, Joe, I will do anything within my power to eliminate any problems I have on the job." During the course of their trips in the truck, they picked up Richard Glover, a mechanic. While Glover was in the truck, Barton made reference to the earlier discussion and repeated his statement that if there was someone on the job who presented a problem to him [Barton], he would do whatever was necessary to eliminate that problem. Again, it appears that the threat expressed by Barton was general in nature and cannot reasonably be construed as directed at "problems" arising out of protected activities of employees or at Green's activities as a union steward. Although the threat was sufficiently general to encompass such activities, in the context in which it arose, I am not of the opinion that Green or Glover could reasonably have understood that it was directed at the former's activities as union steward or at any employee's protected activities. Consequently, I am of the opinion that the General Counsel has failed to prove by a preponderance of the evidence the third above-mentioned allegation.4 4 In any event, even if it were found that the second and/or third allegation had been proved, it would not alter or expand the order or remedy recommended hereinbelow. 5 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of Respondent set forth in section II1, above, occurring in connection with its opera- tions set forth 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 thereof. v. THE REMEDY It will be recommended that Respondent be ordered to cease and desist from engaging in the unfair labor practices found herein and take certain affirmative action, as provided in the recommended Order below; designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW I. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. On or about November 18, 1976, Respondent, through Barton, unlawfully threatened Green and Martin with reprisals because of their pursuance of a grievance based on a provision in the contract between it and the Union, thereby violating Section 8(a)( ) of the Act. 4. General Counsel has failed to prove by a preponder- ance of the evidence the allegations that Respondent violated Section 8(a)(1) of the Act by the conduct of Barton on or about December 30, 1976, and January 17, 1977. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER5 The Respondent, Pacific Gas & Electric Co., San Francisco, California, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Unlawfully threatening any union job steward with reprisal for presenting a grievance based on provisions of its collective-bargaining agreement with the International Brotherhood of Electrical Workers, Local 1245. (b) Unlawfully threatening an employee with reprisal because he participated in a grievance presented on his behalf by ajob steward of said Union. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 742 PACIFIC GAS & ELECTRIC CO. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at each of its stations and substations where it has employees covered by its collective-bargaining agree- ment with the above-mentioned Union copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms to be furnished by the Regional Director for Region 31, shall, after being duly signed by an authorized representative of Respondent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the allegations of unfair labor practices set forth in paragraphs 6(b) and (c) of the complaint herein should be, and are hereby, dismissed. 6 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 WE WILL NOT unlawfully threaten job stewards of the International Brotherhood of Electrical Workers, Local 1245, with reprisals for presenting grievances based on provisions of our collective-bargaining agreement with said Union, or any other labor organization. We WILL NOT unlawfully threaten any employee with reprisal because he participated in a grievance present- ed on his behalf by ajob steward of said Union. WE WILL NOT in any like or related manner restrain, coerce, or interfere with employees in the exercise of their rights under Section 7 of the National Labor Relations Act. PACIFIC GAS & ELECTRIC Co. 743