Teleprompter of Tuscaloosa, Inc.

TELEPROMPTER OF TUSCALOOSA, INC. Teleprompter of Tuscaloosa, Inc. and Sherron L. Menwether. Case 10-CA-12323 November 15, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On April 29, 1977, Administrative Law Judge John F. Corbley 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 attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). 3 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 and hereby orders that the Respondent, Teleprompter of Tuscaloosa, Inc., Tuscaloosa, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. MEMBER MURPHY, dissenting: Despite the almost complete lack of any evidence of animus by Respondent against the Union or Charging Party Meriwether and in the face of strong justification for Respondent's action, my colleagues somehow manage to find that Respondent discrimi- nated against Meriwether by demoting her and by 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 credibility 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 We are unable to agree with our dissenting colleague that there was no evidence of union animus on the part of Respondent. Respondent's animosity against Meriwether for her union activities and in particular her strike activities is clear from its general manager's statement to the Charging Party, dunng the strike, that he held her responsible for the vandalism 233 NLRB No. 70 reducing her employment with Respondent. With this, I cannot agree. The Union had--partially through the efforts of Meriwether in soliciting cards-become the collec- tive-bargaining representative of the office clerical employees in October 1974 through voluntary recog- nition on the part of Respondent. The Union already represented Respondent's installers and technicians, and the collective-bargaining agreement covering those employees then was applied to the office clericals. Meriwether became the assistant job steward. The relationship between Respondent and the Union was apparently quite amicable. Meriwether's known activities on behalf of the Union and her new position of job steward had no apparent effect on her relationship with Respondent. Indeed, it was during this period of union representa- tion that Respondent assigned her the position which it is now alleged by the majority that Respondent discriminatorily-rather than for economic rea- sons-took away. Thus, it was in October 1974 that Meriwether was given the additional cleaning work during her nonduty hours. It was also during the period of union representation and her activities as a steward that she was promoted to head cashier. Thus, despite Meriwether's known union activity, Respon- dent gave Meriwether the very positions the General Counsel asserts were taken away from her for discriminatory reasons. Following the expiration of the 1976 contract the Union began an economic strike on July 26, 1976. Meriwether continued to be the Union's assistant steward and was one of the picketing coordinators. The strike was uneventful in terms of indicating that Respondent bore any animus towards the Union or, for that matter, Meriwether for supporting the Union and the strike. The only possible exception to conclusion with respect to Meriwether, relied on heavily by the Administrative Law Judge, was when Respondent's general manager, Jimmy C. Balentine, informed Meriwether that he was holding her responsible after some coke had been spilled on a nonstriker's car. Viewed in light of the history of Respondent's harmonious relationship with the Union and with Meriwether, this one isolated incident is insufficient to establish animus against the allegedly committed by the picketers, even though there is no evidence that she directed, condoned, or was present when it occurred. Thus, however tolerant Respondent may have been toward Meriwether's union activities pnor to the strike, it is clear that after that event Respondent's attitude concerning her support of the Union underwent a marked and hostile change. When this animus is combined with the timing of Respondent's action, we agree with the Administrative Law Judge, for the reasons set forth in his Decision, that it is clear that Respondent was motivated by a desire to punish Sherron L. Meriwether for her actions on behalf of the Union. 3 See, generally. Isis Plumbing d Heating Co., 138 NLRB 716 (1966) 481 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union or any desire to punish Meriwether because of her union activities. The only other indication that Respondent's actions could possibly have been motivated by Meriwether's union activities is the timing of those actions. However, as to two of the three aspects in which Respondent is alleged to have discriminated against her, that is, the canceling of the cleaning service and the reduction of overtime, the timing is fully explained by other factors. As to the third, the alleged demotion without a reduction in pay, there simply is not enough evidence to warrant finding a violation. In early July 1976, Balentine received a memo from corporate headquarters stating that under the wage and hour laws regular nonjanitorial employees who performed janitorial duties after hours must be paid at the rate of time and a half. This would require paying her $40 more a month than the amount she was presently being paid. Approximately 2 weeks after Balentine received the memo, Respondent's employees went on strike. Both before and after the strike began, Balentine sought to find a solution and so informed Meriwether about a week after the strike began. Nevertheless, Balentine, who was also under pressure to reduce costs, terminated the service arrangement while the employees were still on strike. He did so only after being told by his supervisors that since there was no way to avoid paying her time and a half it would be best to terminate the service. Thus, Charging Party's cleaning services were terminated for economic reasons. Since Respondent could not continue the existing arrangement and be in compliance with the law, its options were either to pay her time and a half or terminate her janitorial services and find a replacement who would cost less. There was nothing improper with Respondent terminating the Charging Party's services rather than paying the required higher wage. Nevertheless, the Administrative Law Judge found that Balentine was under no specific injunction to discontinue the arrangement. While it may be true that he was not directly ordered to do so, corporate headquarters- by telling Balentine it would be best that the services be terminated-certainly put Balentine in the posi- tion where he could only retain her if he was able to pay the additional $40 a month required by Federal law. As to the timing of the cancellation, Respondent only discovered that the arrangement was illegal approximately 2 weeks before the strike started. The reason the termination occurred a month later (while the strike was in progress) is that Balentine in the meantime had been trying, albeit unsuccessfully, to retain the Charging Party's services. Hence, if anything Balentine's actions in that regard were contra to a desire to discriminate against Meriwether. Therefore, I would dismiss this allegation. With respect to reducing the Charging Party's clerical overtime after the strike, the contract which went into effect on August 25, 1976, for the first time required that clerical overtime be equalized. Prior to the contract, the Charging Party's overtime was in excess of that of any other employee. In September she worked or was offered but declined her pro rata share of overtime (as conceded by the Administrative Law Judge), in October she was 7.7 hours short of her share (she refused 3 hours), and in November and December she received more than her pro rata share. I find that Respondent reduced Meriwether's overtime in an effort to be in compliance with the new contract by making her overtime proportionate with that of other clericals. Contrary to the Adminis- trative Law Judge's finding that Respondent controls overtime on a monthly basis, there is nothing in the record to indicate that overtime was to be equalized monthly.4 Nor does the contract mention any time limitation for the equal distribution of overtime. The mere fact that Respondent's exhibits as to overtime were summarized from various company records on a monthly basis in preparation for the hearing does not establish that Respondent records its employees' overtime on that basis. Although under the previous contract Respondent had been required to equalize the installers' and technicians' overtime, there is no evidence that such had been done on a monthly basis. Because there is no past practice under this contract, there is no basis for finding that there has been any deviation from past practice. The fact is that, in the 4-month period following the strike, the Charging Party received more than herpro rata share of overtime, despite taking a 19-working-day vaca- tion. Nor can it be forgotten that in both September and October she turned down the overtime. Further, even assuming that overtime was to be equalized monthly, Respondent should not be expected to assign an exact amount of overtime to each employee in its first effort at enforcing the contract among clericals. In my opinion being 7.7 hours short in October especially where, as here, Meriwether declined an offer of 3 hours' overtime that same month, is not unreasonable. Certainly, it does not carry with it a sufficient basis to infer that the shortage was unlawfully motivated. Accordingly, I find that the General Counsel has failed to show disparate treatment of the Charging Party as to overtime, and would dismiss this allegation. 4 This is only one way in which Respondent keeps its records. 482 TELEPROMPTER OF TUSCALOOSA, INC. With respect to the alleged violation for demoting the Charging Party: The Charging Party prior to the strike handled the deposits and work orders that the night dispatcher had not finished. Because the deposit function required it, she worked in a private office. Prior to the strike, the Charging Party was in charge of clericals when the office manager was absent and other clericals were told to seek her advice. After the strike Respondent reorganized the office, eliminated the night dispatch job, and transferred job duties among the clericals. The Charging Party's deposit function and the accompa- nying private office were transferred to employee Schmandt, who worked during the strike. Schmandt was also appointed assistant office manager trainee. The transfer of the Charging Party's job duties was a proper exercise of management prerogative. The elimination of the night dispatcher resulted in the Charging Party being responsible for all the work orders. Balentine testified without contradiction that, since both the deposits and the work orders had to be done first thing in the morning, one employee could not handle both priority items and therefore trans- ferred the deposits to Schmandt. As to the demotion of Meriwether from leadperson to an ordinary clerical, that was part of a shuffling of clerical jobs without any reduction pay. In my opinion, therefore, General Counsel has not established by substantive evidence that this change was discriminatorily motivated. Nor has he established that this Respon- dent who had voluntarily recognized the Union suddenly developed a union animus. Accordingly, I dissent from the findings that the Respondent violated Section 8(a)(3) and (1), and would dismiss the complaint. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to give evidence it has been found that we have violated the National Labor Relations Act and we have been ordered to post this notice. The National Labor Relations Act gives you, as employees, certain rights including the rights: to self-organization. to form, join, or help unions: to bargain collectively through a representative of your own choosing; to act together for collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. Accordingly, we give you these assurances: WE WILL NOT do anything which interferes with any of your rights set forth above. WE WILL NOT cancel any extra part-time job arrangements you have with us, take overtime opportunities away from you, or demote you from your position, nor will we take any other reprisal against you because you join, support, or engage in activities on behalf of International Brother- hood of Electrical Workers, Local Union No. 136, or any other labor organization. WE WILL offer to restore the cleaning service arrangement we had with Sherron L. Meriwether as the Board has found that we canceled this arrangement because of the union activities of Mrs. Meriwether. WE WILL make up all pay lost by Mrs. Meriwether as the result of the cancellation of this arrangement, plus interest. WE WILL restore Sherron L. Meriwether to her former clerical position of trust and responsibility with her private office because the Board has found that we took that position away from her because of her union activities. WE WILL give Sherron L. Meriwether her share of office clerical overtime work. WE WILL make up office clerical overtime pay lost by Sherron L. Meriwether, plus interest. TELEPROMPTER OF TUSCALOOSA, INC. DECISION STATEMENT OF THE CASE JOHN F. CORBLEY, Administrative Law Judge: A hearing was held in this case on January 20, 1977, at Tuscaloosa, Alabama, pursuant to: a charge filed by Sherron L. Meriwether, hereinafter sometimes referred to as the Charging Party, on October 13, 1976, which was served on Respondent by registered mail on October 13, 1976, and on a complaint and notice of hearing issued by the Regional Director for Region 10 of the National Labor Relations Board on November 26, 1976, which was also served upon Respondent. The complaint alleges that Respondent terminated the cleaning services performed by the Charg- ing Party, changed her job duties and reduced her overtime work, in each instance because of her union or other concerted activities and that by these acts, Respondent violated Section 8(a)(1) and (3) of the Act. In its answer to the complaint, which was also duly filed, Respondent has denied the commission of any unfair labor practices. For reasons which appear hereinafter, I find and conclude that Respondent has violated the Act, essentially as alleged in complaint. At the hearing the General Counsel and Respondent were represented by counsel. All parties were given full opportunity to examine and cross-examine witnesses, to introduce evidence and to file briefs. The parties waived 483 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the opportunity to make oral arguments at the conclusion of the hearing. The General Counsel and Respondent have filed briefs which have been considered. Upon the entire record in this case including the briefs, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, an Alabama corporation with an office and place of business located at Tuscaloosa, Alabama, where it is engaged in the maintenance of a community television antenna system. Respondent during the past calendar year, which period is representative of all times material herein, received gross income in excess of $100,000 and purchased and received goods valued in excess of $15,000 directly from suppliers located outside the State of Alabama. The complaint alleges, the answer admits, and I find that Respondent is, and has been at all times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that International Brotherhood of Electrical Workers, Local Union No. 136, hereinafter referred to as the Union, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Respondent's Relevant Hierarchy Jimmy C. Balentine has been Respondent's general manager since April 22, 1975. Since he has become general manager, Balentine has, inter alia, eliminated a night dispatcher position; done away with scheduled overtime for servicemen to cover trouble calls and placed them instead on a standby status; terminated two employees; canceled the cleaning contract of the Charging Party; represented Respondent in a grievance proceeding and prepared Respondent's operating budget. I find, on the basis of the foregoing and the record as a whole, that Balentine was at all times pertinent hereto, a supervisor within the meaning of Section 2(11) of the Act and Respondent's agent, acting on its behalf, within the meaning of Section 2(13) of the Act. Since October 1974, Edith White has been the assistant to Balentine or to his predecessor. For the 2 years preceding the hearing, Ruth McCraw has been Respondent's office manager. B. Background and Sequence of Events The Charging Party began her employment with Respon- dent on or about July 1, 1970, and has since been employed in Respondent's office performing various clerical func- tions. The Union has represented Respondent's installers and technicians for some period of time. A collective-bargain- ing agreement between Respondent and the Union covering the foregoing employees was in effect from July 16, 1973, until July 15, 1976. The office clerical employees had apparently been unrepresented prior to 1973. In the fall of 1974 the Charging Party solicited her fellow clerical employees to sign union authorization cards. Following this solicitation, in October 1974, the office clerical employees were brought under the above-men- tioned 1973-76 contract by means of an addendum thereto executed by Respondent and the Union. The Union has likewise represented the office clerical employees since that time and the Charging Party became the assistant job steward at Respondent's facility. Also in October 1974, the Charging Party became responsible for the performance of additional part-time work for Respondent during nonduty hours which was entirely separate from her regular office clerical duties. This part-time work involved the cleaning of Respondent's premises on Saturday and Sunday. The Charging Party did most of this work but her son occasionally helped her. Respondent paid for all these services with a biweekly check to the Charging Party's son. The rate was $72 per month at first and later $75 per month. The Charging Party's son was subsequently employed by Respondent in installations and, still later, in sales work. This caused Respondent, in the summer of 1975, to advise the Charging Party that the cleaning work could no longer be paid for in the son's name. The Charging Party then suggested that the payments be made in the name of Lindsay Enterprises (after her maiden name) and Respon- dent agreed. The Charging Party continued to do the cleaning work under the foregoing reimbursement arrangement until July 1976. Her last stipend for this work was $120 per month. During this same period she also performed her office clerical duties rising to the position of head cashier with a private office. Totally aside from the janitorial work, she performed substantial overtime duties as an office clerical employee. The 1973-76 contract between Respondent and the Union expired by its terms on July 16, 1976. Negotiations, in which the Charging Party was one of the Union's representatives, continued after that date but were unsuc- cessful. An economic strike ensued beginning on July 26, 1976. The installers and technicians as well as some 10 office clerical employees participated in this strike. At least one employee, Gail Schmandt, worked during the strike. Schmandt had been in sales until the strike but was moved into the clerical force while the strike was going on. There were also 13 replacements hired for the striking office clerical employees. During the course of the strike the Charging Party continued to be the Union's assistant steward and was one of the picketing coordinators. In the latter capacity she appeared almost every day to begin the picketing and at the conclusion of the day to end it. Also during the course of the strike the Charging Party saw Balentine from time to time. On one such occasion, after some coke had been spilled on Schmandt's car, 484 TELEPROMPTER OF TUSCALOOSA, INC. Balentine asked the Charging Party who had done this. She said she did not know. To this Balentine retorted that he held the Charging Party responsible for the incident. She rejoined that she was not responsible for the actions of the strikers nor for "their mouths." By letter dated August 13, 1976, while the strike was still in progress, Balentine notified the Charging Party that Respondent was terminating her cleaning services. In the meantime negotiations for a new collective- bargaining agreement were successful and a contract was entered into between Respondent and the Union on August 25, 1976, to remain in effect until July 15, 1979. The striking office clerical employees returned to work in late August or early September and all of their strike replace- ments except two or three were terminated. These two or three worked for a period of a few months and all of them had been let go prior to the hearing herein. In early September 1976, Respondent rearranged the duties of several members of the office clerical force. The Charging Party was one of those affected. Her private office was taken away from her as well as her former functions of handling the deposits, opening and closing the safe, and preparing a cash summary. These duties were reassigned to Schmandt who was given the newly created title of assistant office manager. The Charging Party's salary remained the same after these changes but she was given little or no office clerical overtime work in September and October. Later in September 1976, when Schmandt was having difficulty with the deposit work, Pat Headricks, a clerical employee, who had been one of the strikers, was assigned to assist Schmandt. In October 1976, the clerical employees filed a grievance complaining that Schmandt, who had begun work in April 1976, had been promoted over them. Respondent advised the employees at this time that Schmandt would have duties of a supervisory nature and would take the place of either White or McCraw if anything happened to either one of the latter. The grievance was, apparently, unsuccess- ful, and Schmandt continued in this position until about 3 weeks prior to the hearing herein when she was laid off. No later than November 1976 the Charging Party became the Union's chief steward and Respondent was so informed by letter from the Union to Balentine dated November 22. As of January 3, 1977, the deposit function taken over by Schmandt was reassigned to Headricks who had been assisting Schmandt. Headricks performs these duties in an enclosed office. The Charging Party has done no cleaning work since the strike. In her clerical capacity, she has not been restored to her private office location nor to her duties of handling the deposits. Her overtime office clerical assignments have been increased since November 1976. However this is a date following the filing of her charge.' I The foregoing findings are based on the credible and undisputed testimony of the Charging Party and Headricks. The Charging Party clearly testified that Balentine told her during the strike that he held the Charging Party responsible for the coke incident involving Schmandt's car. The Concluding Findings I. The General Counsel's prima facie case The Charging Party's leadership in the union activities of the office clerical employees has already been recounted in some detail in this Decision. Her leadership was also well known to Respondent. Thus, the Charging Party on D, cember 1, 1974, signed, on behalf of the Union, the office clerical addendum to the 1973-76 collective-bargaining agreement. Balentine admit- ted that he was aware that she was the assistant job steward for the Union prior to the strike and, as is clear from his undenied statement that he held her responsible for the coke incident involving Schmandt's car, he obviously considered her the leader of the pickets. His foregoing charge that she was responsible for the actions of the pickets also indicates his animus against her union activities. For this charge was gratuitous, and - since it was gratuitous - it could have only derived from his pique toward her union leadership. That it was gratuitous is clear from the circumstances that there is no evidence that she directed, suggested or condoned such activity nor that she was present at the time it occurred. For that matter, there is not even any showing that any one of the pickets threw the coke on Schmandt's car. Finally, the Charging Party in Balentine's presence specifically disclaimed any knowledge of the perpetrator and any responsibility for any comment or action in which any individual picket might have engaged. Yet while the strike was on, the Charging Party's cleaning service "contract" was discontinued. And, after the strike was over, her private office was taken from her along with her duties in connection with the deposits. Further, her overtime was reduced below the average of other clerical employees, as will appear, this notwithstand- ing a provision in the new contract (the 1976-77 agree- ment) for equalization of the overtime among the office force. 2. The discontinuance of the cleaning service arrangement Respondent defends that it discontinued the Charging Party's cleaning service arrangement for legitimate eco- nomic reasons. More particularly, it points out that Balentine received a letter from Respondent's headquarters in New York dated July 8, 1976, - a date preceding the strike - advising Balentine that under Federal Wage and Hour laws regular nonjanitorial employees who perform janitorial duties on an after hours basis must be paid at the rate of time and a half of the minimum wage. Thereafter Balentine talked to individuals in the corporate headquar- ters about the Charging Party's arrangement in what he testified was an effort to find a way to continue that arrangement. After these conversations he decided it would be better to discontinue the arrangement rather than get into a wage and hour dispute. He further testified that his apparently somewhat variant testimony is an obvious error in the transcript. That this last is an error (and that the correct version was understood by Respondent's counsel) is clear from his question reported in the transcript 485 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision to terminate the arrangement had nothing to do with the Charging Party's union activities. There is a controversy over how much overtime Respon- dent would have had to pay the Charging Party to continue the janitorial service. The General Counsel, apparently relying on the literal wording of the letter of July 8, argues that the cost would have been time and a half times the minimum wage or $124.20 at 36 hours per month (her average time at such work) as opposed to the $120 it had already been paying her. Respondent, in a letter to me, served on all parties, dated March 2, 1977, points out that under Wage and Hour regulations the charge would be time and a half multiplied by the Charging Party's regular wage of $3.30 per-hour ($1 more than the Federal minimum wage). This would represent a cost of $160.20 (36 x 1-1/2 ($3.30)) per month. I will assume for the purposes of my conclusions here that the cost would be, as Respondent says, $160.20 per month. However, I am not persuaded even on this basis that Respondent's primary motivation for discontinuing the service was economic. As noted, Balentine received the letter from corporate headquarters before the strike. Whatever the Wage and Hour law may require, the letter only speaks of time and a half times the minimum wage. Nowhere in his testimony does Balentine mention any precise figure as being involved in his discussions with corporate headquarters nor in his decision to cancel out the cleaning contract. On the other hand he spoke to the Charging Party, also before the strike began in early July, told her he was making up his budget for the coming year and inquired how much her services would be. She told him $145. He expressed no surprise at this figure. 2 Later, about a week after the strike began, the Charging Party told Balentine that she could come in and clean the office on a Saturday.3 Balentine refused the Charging Party's offer. He continued the conversation, however, by telling her that he had a memo from New York which raised a minimum wage question. He added that he felt that it could be worked out and he saw no problem.4 Sometime thereafter the Charging Party sent Balentine a letter asking about the future of the cleaning service arrangement. She got no answer until Respondent's letter of August 13 which terminated it. The August 13 letter noted that the Charging Party's work was "excellent," as indeed Balentine admitted on the stand. From the foregoing it is manifest, and I find, that the Charging Party's cleaning work was of very good quality, that Balentine knew, prior to the strike, of the Wage and Hour problem and knew also that the Charging Party was 2 1 so find based on the Charging Party's credible and undisputed testimony in this regard. 3 This is apparently nonunit work and her fellow pickets told her they did not object. 4 These findings are based on the credible testimony of the Charging Party as corroborated in part by Balentine. 5 See Shattuck Denn Mining Corporation (Iran King Branch) v. N. LR. B., 362 F.2d 466, 470 (C.A 9, 1966). where the court, in speaking of the evaluation of an employer's motive for discharge. held: Actual motive, a state of mind, being the question. it is seldom that direct evidence will be available that is not also self-serving. In such cases, the self-serving declaration is not conclusive; the trier of fact may infer motive from the total circumstances proved. Otherwise no person desirous of a raise (from $120 per month) in any event. It is also clear that Balentine was under no specific injunction from the New York office to discontinue the arrangement. Further, Balentine raised no issue about the cleaning contract or its expected increase in cost at the time. Shortly after the strike began Balentine refused to let the Charging Party do the cleaning work but admitted to her that he saw no problem with continuing the arrangement. After the strike had worn on and was still continuing, Balentine abruptly canceled the arrangement in his letter of August 13. In all the circumstances, particularly the timing of the cancellation, Balentine's gratuitous assertion to the Charg- ing Party that he held her responsible for an act of vandalism which he apparently believed had been per- formed by a striker, and the further fact the potential increase in costs caused no problem in Balentine's mind before the strike, I conclude that Balentine canceled the arrangement because of the elongation of the strike and the Charging Party's known position as the union leader among the striking office clerical employees. Consistently, I attach no weight to his self-serving testimony to the contrary. 5 I further conclude that Respondent, by cancel- ing the cleaning contract, violated Section 8(a)(1) and (3) of the Act. 3. The change in the Charging Party's office clerical duties after the strike Prior to the strike the Charging Party performed a number of duties including, inter alia, the handling of deposits, the preparation of a cash summary, and opening and closing the safe. She had the title of head cashier and worked in a private office. The other employees were told to consult her if they had any question about their duties. In the office when Manager McCraw was out, the office clerical employees looked to the Charging Party for leadership and, indeed, were told to report to the Charging Party at such times. McCraw would leave the Charging Party a list of work assignments for the office force to perform during McCraw's absence.6 After the strike, the Charging Party's private office was taken from her. She no longer does the deposits or the summary and in her list of functions and there is no mention of her being in charge in the absence of McCraw nor any responsibility on her part to guide or instruct her fellow employees.7 Further, after the strike, Schmandt, who had been employed for some 4 months at the time the strike began, but did not participate in it, was assigned the deposits function (for which McCraw had to train her). At that time Schmandt was also given the newly created title accused of unlawful motive who took the stand and testified to a lawful motive would be brought to book. Nor is the trier of fact - here the trial examiner required to be any more naif than is a judge. If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal - an unlawful motive at least where, as in this case, the surrounding facts tend to reinforce that inference. 6 These findings are based on the credible and undisputed testimony of the Charging Party. Headricks, Rominger, Linebarger, and McCraw. 7 See. e.g., Resp. Exh. 4 setting out the poststnke duties of all the office clerical employees including the Charging Party. 486 TELEPROMPTER OF TUSCALOOSA, INC. of assistant office manager and was in training, according to McCraw, for supervisor duties. Respondent contends in its brief that the poststrike changes in the Charging Party's duties were economically motivated. It notes that, prior to the strike, the Charging Party had the duty to finish the workups of work orders begun by the night dispatcher. It says that after the night dispatcher's job was eliminated following the strike this meant a heavier work order load on the Charging Party and that such work orders had to be completed early in the morning. In this same vein Balentine testified that he decided to balance the Charging Party's work by assigning the deposits work to another employee. Respondent's brief further argues that the inner office was a concomitant of the deposits function (a location not out in the open where the deposits could be handled privately and away from the public eye). It notes that the duties of at least three other employees were likewise changed after the strike. At the hearing Respondent also educed testimony from Balentine that Respondent has attempted to cross train its clerical employees so that in the case of an emergency there is always someone available to carry out any office assignment. McCraw testified that cross training has been Respondent's policy for at least 9 or 10 years. It is clear, and I find, that the Charging Party, was, in effect, a leadperson of the office clerical employees before the strike. She was the number one employee in the obvious position to succeed McCraw if the latter retired or was promoted. The Charging Party was supplanted by Schmandt, an employee of only 4 months, who did not go on strike and who did not even work in the clerical force before the strike. Schmandt was given the newly created title of assistant office manager in training for supervisory work. That Schmandt was then intended to succeed McCraw is clear from White's testimony that Balentine created the assistent office manager's position because of the "age" of Mrs. McCraw and the "age" of White. Schmandt was also given the deposits function which must be very important and responsible, because it involves the handling of money. Insofar as cross training goes there was no need to cross train the Charging Party because, in the words of Headricks, the Charging Party "can replace anyone," which is obvious, in any event, from her former duties to assist any office clerical employee who had a problem. Among the jobs at which the Charging Party had experience was working up work orders. It would seem that a cross-training policy would dictate the assignment of this to some other employee, instead of increasing its burden on the Charging Party. Insofar as cross training of other employees on the deposit function, Headricks, who had assisted the Charging Party in this work before the strike, was given the same backup job (only now to Schmandt) a short time after the strike and, just before the hearing, had assumed all of Schmandt's duties in this regard in a private office. As to Schmandt, the need was not so much to cross train her as it was to give her basic training since she had 8 I attach no significance to White's testimony that nothing was said about strike reprisals in the poststrike discussions of Balentine, McCraw, and White about duty realignments. The reprisals could have been decided never worked in the office clerical force until the strike. When Schmandt did not progress in the deposits work after the strike Headricks was assigned to help her. Schmandt, as noted, has since been laid off. The above analysis makes it clear that in the reshuffle of the Charging Party's duties after the strike Respondent did not follow its policy of cross training. What it did was to take the Charging Party's most responsible work assign- ment away from her (the deposits, the cash summary and opening and closing the safe) and her overall position as leadperson in the office. The removal of the deposits function - in which, as I have found, cross training could not have been a motivating factor - provided a conve- nient excuse to take her private office away from her as well. While it is true that the Charging Party suffered no loss of salary as the result of the poststrike rearrangement of her duties and while it is also true that other clerical employees had their assignments changed following the strike, only the Charging Party lost her private office. And only she suffered a demotion in position - from leadperson to ordinary employee. In her place was put a virtual novice, since laid off, who had worked during the strike. The Respondent's message to the employees from these poststrike rearrangements involving the Charging Party was very simple. The union leader of the office clerical employees was removed from her position of prestige and responsibility and, in her place, was put a newcomer who crossed the picket line. Moreover, while the change in the Charging Party's duties has caused her to suffer no loss in hourly pay, it has cost her the position of leadperson under McCraw and, as such, the likelihood that she would be in line to succeed McCraw when the latter retires or is promoted. And, as I have mentioned, the possibility of McCraw's (and White's) eventual departure was a consid- eration in the creation of the so-called new assistant office manager's job into which Schmandt - who was both junior and inexperienced - was then vaulted over the other employees after the strike. I conclude on the basis of the foregoing that Respondent reduced the position and responsibility of the Charging Party after the strike because of her union leadership, and that Respondent has thereby violated Section 8(aX)I) and (3) of the Act.8 4. The Charging Party's poststrike loss of clerical overtime work In its brief Respondent concedes that the Charging Party's prestrike clerical overtime was in excess of that of any other employee. The record, of course, clearly supports this concession. Thus, for example, in 1975, out of 3,260 overtime hours work by some 10 clerical employees, the Charging Party worked 1,261 hours, or more than a third of the total overtime worked by the whole force. After the strike, the Charging Party worked 3 hours overtime in September, none in October, 29-1/2 hours in November, and 16-1/2 hours in December. previously or only been in the mind of Balentine, who was Respondent's chief official at Tuscaloosa. 487 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since the strike some 10 office employees worked a total of about 470 hours of overtime, that is, 84 hours in September, 107.25 hours in October, 189.50 hours in November, and 99.50 hours in December (through Decem- ber 26). Also effective August 25, 1976, there has been in effect a contractual provision requiring equalization of overtime among the clerical employees. In its brief Respondent contends that it has sought to reduce the overtime of all employees as an economic measure, that it had to reduce the Charging Party's overtime after the strike from what it had been before the strike in order to comply with the contractual overtime requirement and, finally, that the Charging Party has, in any event, turned down overtime since the strike. From the evidence I conclude that Respondent controls overtime on a monthly basis and I will, accordingly, consider its treatment of the Charging Party's overtime opportunities after the strike in terms of a monthly basis.9 There is much evidence in the record of directions to Balentine from higher authority to reduce Respondent's overtime and of the imaginative management decisions on the part of Balentine to achieve this end. I conclude that Balentine has reduced overtime - in a general way - pursuant to these instructions and that Respondent through him has reduced overtime - generally - for economic reasons. However, the precise question before me is the specific reduction in the Charging Party's overtime, which I must evaluate in the light of what overtime was assigned to all of the office clerical employees and in the further light of the contractual need to equalize such overtime among them. I will consider Respondent's remaining two defenses in the light of the same factors. As to its defense that the Charging Party turned down overtime, it is true that she did so. She admitted that she turned down a chance to work 3 to 5 hours opening mail on a Saturday in September where the offer was made on short notice after she had made another commitment. White recalled such an incident in early October and McCraw recalled two such incidents about 2 weeks apart beginning in September. Although the Charging Party asserted that the overtime refused in September was all the overtime she had been offered she did not specifically deny the incident in October referred to by White which, I conclude, is also the second incident referred to by McCraw. Hence, I hold that the Charging Party turned down overtime of 5 hours in September and also turned down overtime of an undetermined amount on one occasion in October. '0 In September 1976, the Charging Party worked 3 hours overtime and could have worked 5 hours more, had she 9 1 have interpreted the contract's equalization clause on a monthly basis, because this is at least one way Respondent maintains its record of employee overtime (see Resp. Exh. 3). Further, Respondent controls costs in its budget on a monthly basis (see reference to "January Expense," "May Expense." and "February Cost Center," in Resp. Exhs. 5 and 6). The collective-bargaining agreement itself makes no mention of any time limitation on equal distribution of overtime. io I do not conclude that the Charging Party turned down overtime on another occasion after the strike when, according to White, the Charging Party told White that the Charging Party would not work 12 hours or more as she had in the past. I rather credit the Charging Party's version of this conversation which was that she would not put 12 hours work in 8 hours as accepted it. This means she was offered 8 hours in September. In October 1976, she worked no hours of overtime but turned down one offer of it in that same month. Respondent's witnesses did not state how long the offered overtime stint would have been. Since this is a matter of defense and no specific testimony was offered I will not conclude it was the maximum 5 hours (as I did with the 3 to 5 hours refused opportunity in September), but rather the minimum of 3 hours (using the September offer as a standard). This means that the Charging Party could have worked 3 overtime hours in October. Taking the overtime hours the Charging Party could have worked in both September and October and contrast- ing them with her rights under the contract's overtime equalization clause the following is noted. The whole clerical force of 10 employees worked 84 hours in September. The Charging Party's share would have thus been 8.4 hours, or approximately what she was offered. Taking the October overtime, the same 10 office clerical employees worked 107.25 hours of which the Charging Party's share would have been 10.7 hours. She was offered only 3 hours. I, accordingly, conclude that the Charging Party was not given the opportunity to work 7.7 hours of overtime in October to which she was entitled under the contract - if on no other basis. In view of Respondent's pattern of discrimination against her, as already found - taking away her cleaning service contract and, in effect, demoting her from her prior clerical position of head cashier - I conclude that she was deprived of her rightful overtime opportunity in October because of her leadership in the union activities of the clerical employees and, further, that by depriving her of this opportunity, Respondent has violated Section 8(a)(1) and (3) of the Act. After the charge herein was filed in October, the Charging Party's overtime increased dramatically in November and December 1976 (the only other periods specifically covered by the record). In November she worked 29.5 overtime hours out of 189.5 hours of overtime by the whole 10 employee force (i.e., 10 more hours than her pro rata share, which would be 19 hours under the equalization clause figured on a monthly basis). In December she worked 16.5 hours out of 99.5 hours worked by the whole group (or 7 more hours than her pro rata share, which would be 9.5 hours). Since the Charging Party received more than her aliquot share of overtime in November and December, I do not conclude that she was unlawfully deprived of overtime opportunities during these months. " she had done before the strike. I credit the Charging Party's version because the instant conversation had nothing to do with overtime but instead with the need to cover the telephone during normal working hours while working on the counter - these being matters White took up with her at the time. I think it highly unlikely in any event that the Charging Party would, as White suggests, make an outright refusal of all future overtime. Part of her present case is an effort to obtain more of it. She certainly can use the money with a son in college and, as I have observed, she worked more than a third of all the overtime performed by the clerical force in the year preceding the strike. I therefore hold that White misunderstood what the Charging Party said on this occasion. 11 In making these findings and my findings in respect to what occurred 488 TELEPROMPTER OF TUSCALOOSA. INC. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section 111, above, occurring in connection with its operations de- scribed in section 1, 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 violated Section 8(a)(3) and (1) of the Act, I shall recommend an order directing it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Thus, in addition to requiring Respondent to post an appropriate notice to its employees, I shall recommend that Respondent be required to offer the Charging Party restoration of her cleaning service arrangement and to make her whole for any loss of earnings she may have suffered by reason of the discrimi- nation against her by payment to her of a sum of money equal to what she would have earned from the date her cleaning service contract was terminated to the date of the offer of restoration less net earnings, if any, which she may have received from any interim part-time work she may have acquired during such period, to be computed in the manner prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), with 6-percent interest thereon as prescribed by Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I shall also recommend that the Charging Party be reimbursed for the 7.7 hours of overtime of which she was discriminatorily deprived in October 1976, plus 6-percent interest. I shall further recommend that the Charging Party be restored to her former position of trust and responsibility, with attending perquisites (e.g., the private office), from which position she was discriminatorily demoted after the strike and that she be given her pro rata share of office clerical overtime opportunities. Finally, it will be recommended, in view of the nature of the unfair labor practices in which Respondent has engaged (see N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941)) that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. CONCI USIONS OF LAW 1. Respondent is engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. Respondent has violated Section 8(a)(l) and (3) of the Act by: in this regard in September and October I have not considered the possibility that other office clerical employees were offered. but declined, overtime work. If such indeed occurred it should have been shown by the General Counsel in rebuttal. There was no such showing. 12 In the event no exceptions are filed as provided by Sec. 102.46 of the (a) Canceling the Charging Party's cleaning service arrangement on or about August 13, 1976; (b) Depriving her of 7.7 hours of clerical overtime work in October 1976; and (c) Demoting her in September 1976 from her prestrike position of trust and responsibility; in each instance because of the Charging Party's leadership role in the union activities of the office clerical employees. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 12 The Respondent, Teleprompter of Tuscaloosa, Inc., Tuscaloosa, Alabama, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discouraging membership in, or activities on behalf of, International Brotherhood of Electrical Workers, Local Union No. 136, or any other labor organization, by depriving employees of part-time extra work or overtime opportunities or by demoting them from positions of trust and responsibility or by otherwise discriminating in regard to hire or tenure of employment or in any other manner in regard to any term or condition of employment of any of Respondent's employees in order to discourage union membership or activities. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer to restore to Sherron L. Meriwether her cleaning service arrangement with Respondent which the Respondent canceled on August 13, 1976. (b) Make Sherron L. Meriwether whole for any loss of earnings she may have suffered as the result of the discriminatory cancellation of the above-mentioned clean- ing service arrangement in the manner set forth in the section of this Decision entitled "The Remedy." (c) Reinstate Sherron L. Meriwether to her former clerical position of trust and responsibility with all perquisites pertaining thereto. (d) Offer Sherron L. Meriwether her pro rata share of office clerical overtime work opportunities. (e) Make Sherron L. Meriwether whole for the loss of 7.7 hours' overtime plus 6-percent interest. (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports and all other records Rules and Regulations of the National Labor Relations Board, the findings. 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. 489 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary to analyze the amount of backpay due under the terms of this Order. (g) Post at its place of business in Tuscaloosa, Alabama, copies of the attached notice marked "Appendix." 3 Copies of this notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 13 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 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director, in writing, within 20 days of the date of this Order, what steps Respondent has taken to comply herewith. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 490