Union Electric Co.

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union Electric Company and Local 1455, Internation- al Brotherhood of Electrical Workers, AFL-CIO. Case 14-CA-7434 DECISION STATEMENT OF THE CASE October 25, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On June 18, 1974, Administrative Law Judge Mor- ton D. Friedman issued the attached Decision in this proceeding. Thereafter, General Counsel and Charg- ing Party filed exceptions, and General Counsel sub- mitted a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions z of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. ' The record does not support the Administrative Law Judge's finding in the 24th paragraph of sec. III, B, of his Decision that at a meeting of May 31, 1974, with the Union ° [Vice President] Potts denied making an outright statement that the Company had no complaints against the quantity or quality of Bunyan's work." His testimony was, rather, that he told the Union that "we had made no complaint." This error, however, does not affect any material findings of the Administrative Law Judge. The Charging Party 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 the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wa/I 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. Contrary to the Charging Party's contentions, our careful examination of the record and the Administrative Law Judge's Decision reveals no bias or prejudice by the Administrative Law Judge. In the absence of any allegation in the complaint, we do not find that Potts' threat that if Bunyan did not stop filing excessive grievances "further action will be taken" was a violation of the Act. Although this threat raises a suspicion that Respondent may have in part been motivated to take action against Bunyan because of his filing of grievances, we agree with the Ad- ministrative Law Judge for the reasons stated by him, that the General Counsel has not established unlawful motivation. MORTON D. FRIEDMAN , Administrative Law Judge: Upon a charge filed on June 4, 1973, by Local 1455, International Brotherhood of Electrical Workers, AFL-CIO, herein called the Union , the Regional Director for Region 14 of the National Labor Relations Board , herein called the Board , issued a complaint on September 13, 1973, on be- half of the General Counsel of the Board , against Union Electric Company, herein called the Respondent or the Company, alleging that the said Respondent had violated Section 8(a)(3) and ( 1) of the National Labor Relations Act. In its duly filed answer , the Respondent , while admit- ting certain allegations of the complaint , denied the com- mission of any unfair labor practices. Pursuant to notice the hearing in this proceeding was held before me at St. Louis , Missouri, on December l t and 12, 1973, and March 4 and 5 , 1974. All parties were repre- sented and were afforded full' opportunity to be heard, to introduce relevant evidence , to present oral argument, and to file briefs . Oral argument was waived by all parties. Briefs were filed by counsel for the General Counsel and the Respondent. Upon consideration of the entire record herein and upon my observation of each witness appearing before me, I make the following:' FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Missouri corporation, is a public util- ity engaged in the manufacture, sale, and distribution of electrical energy. During the year ending December 31, 1972, a representative period, the Respondent had gross sales of electricity in excess of $250,000 and purchased and caused to be delivered to its St. Louis installation, and other sites in Missouri, goods and materials of a value in excess of $100,000, of which goods and materials of a value in excess of $50,000 were transported and delivered to its installations in Missouri directly from points located out- side of said State. It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that Local 1455, International Brotherhood of Electrical Workers, AFL-CIO, herein the Union, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 'To the extent that I credit a witness only in part. I do so upon the evidentiary rule that it is not uncommon "to believe some and not all of the witness' testimony." N. L. R. B. v. Universal Camera Corp., 179 F.2d 749, 754 (C.A. 2, 1950). 214 NLRB No. 49 UNION ELECTRIC CO. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The issue presented is whether the Respondent removed certain job functions, duties, and responsibilities from em- ployee Matthew Bunyan because the said employee en- gaged in the protected, concerted activity of filing griev- ances? B. The Basic Facts Matthew Bunyan has been employed by the Respondent for 47 years and, since 1942, has been an accountant in the Respondent's tax department, although he has never had formal training in that work but has acquired knowledge through work experience. In 1946, the Union herein was certified as the bargaining representative of Respondent's employees in office, cleri- cal, sales, and technical job classifications. These employ- ees, before that time, had been represented by an indepen- dent union. Bunyan, in 1945 and 1946, had been secretary of the independent union and, after certification of the Union herein, became its first business manager. As such business manager, Bunyan participated actively in the ne- gotiation and enforcement of consecutive collective-bar- gaining agreements between the Union and the Respon- dent until 1951, when he returned to full-time employment as an accountant in Respondent's tax department.' Bunyan worked from 1951 until sometime in 1953 when he was placed on sick leave by reason of, as Bunyan de- scribes it, a nervous breakdown. He remained on leave of absence until sometime in 1956. However, after a short period of worktime during 1956, Bunyan again became ill and again was placed on sick leave. He finally returned to work on December 1, 1965, and has worked as an accoun- tant in the tax department since that date.4 Bunyan's differences with the Respondent began to fes- 2 As an affirmative defense, Respondent alleges that as the subject matter involves work assignment, and as such matters are cognizable under the grievance and arbitration provisions of the collective-bargaining agreement between the Union and the Respondent, the subject matter of this proceed- ing should be deferred to arbitration. However, the procedures of the bar- gaining agreement contain time limitations which are applicable to the in- stant matter and had expired by the date of the hearing herein . Thus, defer- ral is barred by the application of the time limitation unless the Respondent unconditionally waives the limitations. Respondent has refused to do so. stating on the record that it would only submit the question of time limits to arbitration as well as the underlying dispute. Accordingly, without deciding the arbitrability of the work assignment dispute , Respondent's motion to defer is held to be without merit and is denied because by refusing to uncon- ditionally waive the time limits the Respondent does not evince either the desire or the willingness to submit to arbitration anticipated under Collyer Insulated Wire, 192 NLRB 837 (1971). 3 The bargaining agreement between the Respondent and the Union pro- vides, and evidently past contracts also provided, that employees elected to full-time union office are placed on leave of absence while acting as such officers . During such leave of absence , the employees receive no pay but their seniority continues to accrue. As in the case of leave of absence for serving as union officer, the contract between the Respondent and the Union provides, and evidently in the past provided, that employees may remain on leave at the discretion of the Respondent after consultation with the Union for periods of time be- yond the allowable sick leave . However, when on such leave of absence, the employees are not paid but their seniority does continue to accumulate. 321 ter in May 1969. In order to understand how these differ- ences arose it is necessary to set forth the personnel struc- ture of the tax department. At the head of the tax depart- ment is the manager and immediately below are two super- visors, one, the head of the income and excise department, the other, the head of the property tax department. Ac- cording to the chart introduced by the Respondent, Bu- nyan is in the income and excise department. Immediately under the supervisor of the income and excise department are two employees classified as senior tax accountants. Al- though these positions are nonsupervisory and are within the bargaining unit represented by the Union, they are of higher classification standard and, incidently, are paid a higher salary. Directly below the classification of senior tax accountant are the tax accountants . Bunyan is one of these tax accountants, who are also included in the bargaining unit represented by the Union. In other accounting divi- sions of the Respondent there are also like classifications such as senior accountants and accountants. As noted above, in May 1969 the difference between Bunyan and the Respondent--began to become somewhat acute. At that time one of the two senior accountants in the tax department was transferred to the general accounting department and the Respondent transferred a Mr. Martin Wyka from the general accounting department into the se- nior accountant's position that was thus vacated. Bunyan filed a grievance over that action, contending that his se- niority was greater than anyone else's in the department and that he, therefore, should have been moved into the senior accountant position . It should be noted, in connec- tion with this protest by Bunyan, that the Respondent's contractual right to make such transfers laterally, and dis- regard the accumulated seniority of employees, is the basis of a long standing dispute between the Respondent and the Union and such dispute rests upon their individual inter- pretations of the collective -bargaining agreement. In any event, Bunyan's grievance was rejected by the Respondent and failed to be processed for further consideration through the grievance procedure inasmuch as the grievance filed by Bunyan at that time was not timely within the provisions of the grievance arbitration procedures of the collective-bargaining agreement.5 This grievance was the first grievance that Bunyan filed since returning to work in 1965. Bunyan's dispute over seniority and promotion did not end with the failure of the above grievance. In June 1972 Wyka was promoted to the position of supervisor in the tax department. This left an opening for a senior tax accoun- tant. However, instead of promoting Bunyan who claimed the right to be promoted as a matter of seniority, the Re- spondent filled the position by laterally transferring an em- ployee who had, presumably, less seniority than Bunyan and who came from another department. At that time, however, Bunyan was offered the senior accountant posi- tion in the other department from which the employee who filled Wyka's empty position had come. Bunyan neither declined nor accepted, according to Bunyan, because he desired more time to think about the matter and , moreover, 5 The merits of this seniority dispute are not relevant here. Suffice it to say that such dispute exists and that grievances have been filed with regard thereto. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he desired to stay in the tax- department with which work he was more familiar. In any event, Bunyan did file a griev- ance over this failure of the Respondent to raise him to the senior accountant's position in the tax department. The grievance was filed in June 1972. In November 1972 Bunyan filed a grievance with regard to unit work allegedly performed contrary to contractual agreement by newly appointed Supervisor Martin -Wyka. According to Bunyan, Wyka performed work which he had no contractual right to perform and which belonged to unit employees. It should be noted that the collective-bar- gaining agreement provides that supervisors shall do no unit work except under certain specified circumstances. Bunyan and Wyka had a considerable discussion over the filing of this latter grievance. Also, during November 1972, Bunyan filed a grievance alleging that the Respondent had refused to permit him sufficient time off in which to cast his vote in the governmental election held on November 7, 1972. During ,1973 Bunyan filed six grievances. The record does not reveal the basis of each of these grievances but it does reveal one in which Bunyan filed to recover addition- al pay for which he claimed the contract provided because he bad the most seniority of any employee in the depart- ment at a time when no supervisors were present. It should be noted that the collective-bargaining agreement provides, in part, that when an employee is temporarily assigned to a supervisory or other managerial position, his rate shall be 120 percent of his regular job rate while so assigned. How- ever, the evidence reveals that at the time for which Bun- yan claimed the 120 percent of his wage he was not tempo- rarily assigned to supervisory work. But Wyka and other supervisors were absent at a meeting and Bunyan claimed that because of his seniority he was acting as a supervisor in the absence of the other permanent supervisors. Howev- er, on cross-examination, Bunyan admitted that he did no supervisory work whatsoever during that period of time. He further admitted that he was in no way designated or appointed by any superior to act as a temporary supervisor in the absence of his supervisor. In December 1972 an accountant, Joe Meyer, was trans- ferred from another accounting department into the tax department on a temporary basis. According- to Bunyan, Meyer had not worked in the tax department before and had been employed by the Respondent for only 5 years before his transfer. On January 31, without any warning, according to Bunyan, Wyka informed him that Meyer would perform a portion of the tax work for a subsidiary corporation, Missouri Edison Company, that had previous- ly been included in Bunyan's assigned duties. At that time, according to Bunyan, Wyka informed him that the Re- spondeint desired that the 1972 federal income tax return for the Respondent be filed by June 15, 1973. The Respondent is the parent corporation of several sub- sidiaries, among them Missouri Edison, whose tax ac- counts Bunyan had handled since his return to Respondent's active employ in 1965. These subsidiaries do not file separate returns but tax information relating to these subsidiaries must be given to the chief accountants or to the head of the tax department by the accountants in time for the latter individuals to prepare the consolidated returns for the Respondent which includes the income tax material from the subsidiaries. Although April 15 is the deadline date upon which corporation income tax returns must be filed with the Internal Revenue Service, according to Bunyan, there is an automatic extension until June 15 at which time, if futher time is needed to prepare the consoli- dated return, the Respondent must make application to the Internal Revenue Service for an extension to September 15. According to Bunyan this has been done every year since 1965. However, Bunyan also admitted that he had been late in preparing the Missouri Edison return every year since his return. But he claimed that others who worked on the returns of other subsidiaries, mentioning especially Missouri Power & Light Company, had also been late in supplying the information for the consolidated return. It should be noted, however, that James M. Bridge, man- ager of the tax department, testified without contradiction that the Respondent was most anxious to have the 1972 return filed by the June 15 deadline because the Respon- dent had anticipated an approximate 3-million-dollar re- fund upon the filing of its 1972 return and therefore, since the Respondent was most anxious to receive this refund, it was necessary that the consolidated return be filed by June 15. In order to do this, according to Bridge and Wyka, since Bunyan was so slow in preparing the necessary mat- ter for the Missouri Edison return, it became necessary to assign some of the work of that return to another individu- al. As matters turned out, although the consolidated return was not filed by June 15, it was filed by July 31 and Re- spondent did receive the expected refund soon thereafter. Bunyan testified that to his knowledge no other employ- ee has ever had work taken from him because of lateness in filing tax returns. He further testified that up until the time the work was taken away from him and given to Meyer in January 1973, none of his, superiors in the Respondent's tax department had ever mentioned Bunyan's late prepara- tion of the tax return; nor had he ever been criticized for lateness. He also testified that the preparation of the Mis- souri Edison tax return was approximately 20 percent of Bunyan's former work. With regard to his never having been criticized, there was testimony on the part of the Respondent's witnesses to the contrary, which testimony is discussed below. At any rate, the relationship between Bunyan, on the one hand, and Supervisor Martin Wyka and Tax Depart- ment Manager James M. Bridge, on the other, began to deteriorate at an accelerated pace from the date that Meyer was first assigned part of Bunyan's work. Shortly after Jan- uary 31, 1973, Bunyan having evidently complained to Union Business Agent Don Mattingly about this transfer of work, Mattingly met with John Stevens, Respondent's assistant vice president for industrial relations, and Lou Rawlings, personnel director for the comptroller's depart- ment. At the outset of the meeting, Mattingly stated that he thought that the treatment that had been'given Bunyan was "atrocious." Stevens replied that the Respondent had trouble with Bunyan and that, furthermore, Bunyan had filed a number of grievances, "the like of which I would not even honor with a name." Stevens then told Mattingly that the reassignment had been made and that this reas- signment of duties would continue. Rawlings stated that UNION ELECTRIC CO. the reason that Respondent made the reassignment of Bunyan's duties to Meyer was because the Respondent's accounting department was fearful of not being able to obtain an extension in the year 1973 beyond the date of June 15, the normal tax return filing date. This, incidently, was much the same as had been told to Bunyan by Wyka when the reassignment was made. The result of the meet- ing was that both Rawlings and Stevens remained adamant in their position and refused to change the assignment and give back to Bunyan that work which had been taken away from him. Within a short space of time, perhaps the same day, after the meeting with Rawlings and Stevens, Mattingly met with Patrick J. Potts, Respondent's vice president of indus- trial relations. Mattingly told Potts approximately the same thing that he had told the other two employer officials, namely that what they had done to Bunyan was not proper treatment. Potts replied, "We have treated Mr. Bunyan with kid gloves. Mr. Bunyan had retaliated by filing a ser- ies of grievances and in the event that Mr. Bunyan does not change this, further action will be taken." Among other things which Potts said to Mattingly at that meeting was "Out of four or five hundred employees, the only one who filed a grievance for not being allowed enough time to vote was Mr. Bunyan." At any rate, although Mattingly and Potts, discussed the reassignment Potts, like the others, re- mained adamant and refused to change the decision of January 31 to reassign a portion of Bunyan's work." Evidently, although Wyka informed Bunyan on January 31 that some of his work would be reassigned to accoun- tant Meyer, the actual transfer of duties from Bunyan to Meyer did not take place until after March 29. On March 29, Mattingly learned that the following Saturday would be the first day in which any of Bunyan's duties would be reassigned to Meyer. Accordingly, on March 29 Mattingly informed Bunyan that the latter should inform Wyka that Bunyan was going to have a meeting with Mattingly. Thereafter Bunyan met with Mattingly on the Respondent's premises and discussed the situation. Imme- diately after this meeting, Bunyan went back to his office and Mattingly spoke to three other employees in the tax department, instructing them to inform their supervisor that they were going to have a meeting. This, according to Mattingly, was normal procedure used when the union rep- resentative wished to have a meeting with its members on the Respondent's premises. The meeting with the three other employees was held. Mattingly discussed with the three employees what was transpiring in Bunyan's case and recommended to them that they refuse to work overtime 6 From credited testimony of Mattingly. Aside from the fact that I was able to observe Mattingly, Stevens, and Potts as they testified, I conclude that Mattingly convincingly demonstrated that he had a very clear recollec- tion of what occurred at those meetings. However, with regard to Stevens and Potts, although they did not admit, as contended by the General Coun- sel, that they had made the statements above attributed to them by Matting- ly, they nevertheless did admit that they could not clearly remember what was said at the meetings which occurred shortly after January 31. While I also conclude that both Stevens and Potts attempted , to the best of their ability, to answer the questions put to them with regard to this matter, their admitted failure of recollection of what was said does not have the same probative value as the direct and concise testimony of Mattingly. Rawlings did not testify. Accordingly, I credit Mattingly. 323 on the following Saturday. Bunyan was not present. Thereafter, on or about April 9, Tax Department Man- ager Bridge informed Bunyan that Bridge wanted a meet- ing with Bunyan and also told Bunyan to have his shop steward with him at the meeting. According to Bunyan, when an employee is requested to meet with management and the employee's shop steward, such request usually pre- cedes a Respondent complaint against the said employee. However, relying upon his own interpretation of the bar- gaining contract, Bunyan told Bridge to proceed under ar- ticle VI of the collective-bargaining agreement. This article provides, among other things, for the procedures by which the Respondent is entitled to bring complaints against em- ployees. After receiving this answer from Bunyan, Bridge called Union Business Agent Mattingly and informed the latter that he had been unable to set up a meeting with Bunyan and that if a meeting was not set up, Bridge would be forced to take disciplinary action against Bunyan. Ac- cordingly, Mattingly then called the chief shop steward, Norma Keough, and suggested that she go with Bunyan to a meeting with Bridge. Thereafter, on April .16, the meeting between Bunyan and Keough on the one hand, and Bridge and Wyka on the other, was held in Bridge's office. What actually occurred at that meeting is not clear from a study of the record. Bunyan testified that Bridge started the meeting by stating that article VI of the bargaining agree- ment was not appropriate and then went on to say that what brought about the meeting was the meeting of March 30, 1973, in which threats were made to employees about not working overtime. This, evidently, was the meeting, heretofore referred to, held by Mattingly with three em- ployees of the tax department. According to Bunyan, when pressed by the chief steward, Mrs. Keough, Bridge stated that the person who made the threat was "Matt." Bunyan further testified that he was told at that meeting that he was not to meet with any representatives of the Union in the future on company premises until given permission by the industrial relations department. Bunyan also testified that this was not required of any other employee. Bridge, on the other hand, gave a somewhat different version of what occurred at the meeting. He testified that many matters had occurred with regard to Bunyan which had raised problems for Bridge and Wyka and others in the department. He originally called the meeting for the pur- pose of discussing these matters with Bunyan and not for the purpose of disciplining Bunyan in any way. He there- fore opened the meeting by stating that he did not feel that article VI was appropriate, because article VI applied only to disciplinary proceedings against an employee. He also stated that the meeting had been triggered primarily, in addition to the other things, by the disturbance in the de- partment on March 30, concerning whether or not over- time would be worked the following day. Bridge further testified that he informed Bunyan and Keough at the meet- ing that he understood threats had been made to the other employees about not working overtime, and that if there was a reoccurrence, disciplinary action would be taken; that he was the manager of the tax department and had to make decisions for the department and that Wyka was the supervisor and had Bridge's complete backing on all deci- sions in the department. However, neither Bunyan nor 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bridge in their testimony at the hearing herein state that Bunyan was disciplined nor reprimanded at that meeting although Bunyan must have been because he filed a griev- ance with regard thereto inasmuch as he had not been at the meeting of March 30 and had therefore not instigated any movement among the employees to induce them to refuse to work overtime. Evidently Bridge had disciplined or reprimanded Bunyan at that time since on June 22, 1973, Stevens, assistant vice president for industrial rela tions, wrote a letter to Mattingly, the Union's business manager, to the effect that the Respondent was rejecting the grievance which would have required the Respondent to destroy all records concerning the improper reprimand of Matthew Bunyan on April 16, 1973. Accordingly, I find and conclude that Bunyan was reprimanded that day al- though neither Bridge nor Bunyan testified explicitly as to what form the reprimand took. With regard to the informing of Bunyan by Bridge that Bunyan could not speak to anyone representing the Union on Respondent's premises and time until he had permis- sion from the industrial relations department, Bridge ad- mitted that he told Bunyan that the latter would have to proceed in this manner from that day forth. However, Bridge further testified, which testimony I accept, that he was told by his superiors at a date soon after that this was an improper direction; that he relayed this information to Bunyan and that thereafter neither Bunyan nor any other employee in the tax department was required to go to the industrial relations department to obtain permission to speak to a union representative on company time and premises. However, despite the fact that the correction in these instructions was made and that the correction was relayed by Bridge to Bunyan, the Respondent, nevertheless, re- fused to withdraw the reprimand given by Bridge to Bu- nyan on April 16, despite the fact that it was demonstrated to the Respondent that Bunyan did not participate in the March 30 meeting at which Mattingly and the three other employees discussed the possibility of refusing to work overtime. On April 19, 3 days after the meeting between Bunyan and Bridge at which Bunyan was reprimanded, Wyka gave Bunyan instructions to start the monthly closing of the reg- ister for accruals by the first workday following April 19, to obtain the accrued tax schedules for another department, to work on the 1972 register schedules, to work on the tax protest, and among other things, to ink in the tax registers. Bunyan was assigned to keep and maintain these register's into which he made entries in pencil from 1965, the date he returned to the Respondent's employee from his illness un- til 1973 but which he had failed to ink in during that time. These instructions, according to all parties, were the nor- mal work assigned to Bunyan, less the work which had been reassigned from Bunyan to Meyer. According to Bun- yan, with the exception of inking in the register, he per- formed this work properly, within the time limits set and with the required efficiency and accuracy. According to Bridge and Wyka this was not so. Also, Bunyan testified that when he returned in 1965 he had to ink in the register for Missouri Edison which had not been inked in by his predecessor during the year prior to Bunyan's return. How- ever, he was instructed, that the inking in of the register was something which could be deferred so that other, more important and immediate, work could be performed. It should also be noted, that at the time that Bunyan was told on January 31 that part of his work would be reassigned to accountant Meyer, he was also instructed by Wyka to ink in the registers for the past years from- 1965 to date. The reason for the inking was explained by Respondent's wit- nesses as a necessary act in order to make the records per- manent as required by the United States Internal Revenue code. However, although Bunyan was instructed on Janu- ary 31 to bring the inking in of the registers up to date, he, nevertheless, did not do so and had not done so by April 19, 1973, when the instructions above set forth were given to him. While this was going on, of course, Bunyan's vari- ous grievances had been processed to the point that a num- ber of them were being set down for arbitration. After receiving the above instructions on April 19, Bun- yan evidently did not perform that part of the work which consisted of the inking in of register for the past years. Bunyan claims that the pressure of other work was such that there was no time in which to do the inking in of the register. He further testified that other employees in charge of other registers for other subsidiaries of the Respondent were not required to bring their tax registers up to date insofar as the inking in process was concerned? Finally, on May 29, Wyka informed Bunyan that Joe Meyer, the temporary employee who had been transferred in December 1972, would become a permanent accountant in the tax department and would be doing the tax accruals, the tax register and would take over the duties that Bunyan had. Wyka also on that date, told Bunyan that the latter would be inking in over the penciled figures in the registers assigned to him on an almost full-time basis until they were completed and that Bunyan would also be given special assignments. When Bunyan inquired as to what the special assignments would be, Wyka stated that he did not know. In connection with this change of assignments, at the time of the first 2 days of the hearing herein Bunyan was still inking in the figures and doing little else. It should further be noted that the inking in of these registers were only as to those registers which Bunyan was responsible for and not for the registers of other individuals. On May 31 Bunyan, having reported to Union Business Representative Mattingly the reassignment of Bunyan ex- clusively to inking the registers, Bunyan and Mattingly, together with Elmer Kelly, international representative of the Electrical Workers Union, met with Stevens, Respondent's assistant industrial labor relations depart- ment manager, Potts, vice president in charge of industrial relations, and Wyka in Potts' office. No grievance had been filed as yet with regard to Bunyan's reassignment. Mattingly opened the meeting and stated that he wanted Bunyan to get his job back and that he felt that the Re- 7 In explaining the necessity to ink in registers it should be noted the purpose of the registers and how they are kept. Each month the Respondent and its subsidiaries have accruals and these accruals and the payments that are made are penciled in. Then , after the completion of the year, at a time when other work is not pressing and time is available, the person who keeps these books goes over the penciled figures and inks in over ' the penciled figures. UNION ELECTRIC CO. spondent was discriminating against Bunyan. Potts replied that they were not punishing Bunyan for filing grievances or requiring him to ink in the registers for that reason. Potts added that he did think, however, that, incidently, Banyan was harrassing the Respondent by the filing of grievances which did not amount to much. Mattingly testi- fied that Potts replied that Mattingly had misunderstood him, that although the Company was being harrassed by the filing of grievances, the entire stack not being worth $1.50, the reassignment of work within the department was not intended to be of a disciplinary nature but had been made for other reasons and purposes. According to Potts, whom I credit in this respect, he told Mattingly and Bunyan and Kelly that when Bunyan re- turned to work in 1965 after a very extended illness, the retention of Bunyan was due to an agreement between the labor relations director of the Company and the interna- tional representative of the Union. However Potts empha- sized that by taking Bunyan back the Company did not relinquish any of its rights to assign work within the job description of the employees, nor did it in any way promise that it would treat Bunyan any differently than it would any other employee. Potts then stated that Bunyan was being reassigned because of insubordination, refusal to car- ry out the instructions of his superiors, and other items. Potts further testified that with regard to the grievances he did refer to them, but his statement was to the effect that he thought the grievances filed by Bunyan were of little magnitude. However, on cross-examination, Potts admit- ted that he might have said that the grievances filed by Bunyan "were not worth a dollar and a-half." According to Mattingly and Bunyan, Potts also stated that there was no complaint against Bunyan's quality or quantity of work but that the Company felt they had the right to the reassign- ment of duties and that is what they intended to do. Potts denied making an outright statement that the Company had no complaints against the quantity or quality of Bunyan's work. Instead, Potts testified that what he said was that "We had made no complaint about Mr. Bunyan's quality or quantity of work. By that I didn't mean that we couldn't have, but we had not." Mattingly testified that he also questioned Wyka about the latter's intention of assignment of work to Bunyan when the latter ran out of work inking in the registers, in other words when the register inking was all finished. Wyka, according to Mattingly, stated that the Respondent intended to assign other duties to Bunyan but he was not able to guarantee that there would be any other duties as- signed within the tax department. According to Mattingly, he'then told Potts, Wyka, and another representative of the Respondent at that meeting that they were putting Bunyan in a position where he would be forced into another de- partment where he had earlier refused to be transferred, even at ,a promotion. Potts testified further, which testimo- ny I accept, that he explained to the union representatives and to Bunyan that each job classification had a variety of duties and the right of assignment within that job classifi- cation was exclusively in the Respondent. At any rate, Potts refused to order the reassignment of Bunyan's former work from Meyer back to Bunyan. Having obtained no satisfaction from this meeting, on 325 June 4 the Union filed the charge which lead to this pro- ceeding. Despite the fact that most of Bunyan's duties were taken away from him and he was assigned the work exclusively, at least for the'time being, to ink in the register, he did not lose any pay or suffer any financial loss whatsoever. C. Respondent's Defense The complaint alleges in substance that the reassignment of certain of Bunyan's duties and responsibilities by the Respondent was motivated by Bunyan's filing of griev- ances under the grievance procedure of the then current collective-bargaining agreement. The Respondent con- tends, however, that although Bunyan has filed numerous grievances over a relatively short period of time, this factor did not enter into the Respondent's consideration in re- moving these responsibilities from Bunyan. The Respon- dent contends, on the other hand, that Bunyan was so un- satisfactory in the performance of his assigned tasks that the Respondent was forced by economic considerations to remove these responsibilities from Bunyan in order to have the assigned responsibilities of the tax department complet- ed in a timely and proper fashion. Additionally, the Re- spondent testifies that Bunyan was not only extremely slow and normally late in completing this work and failed to meet due dates, but he was also upon many occasions ar- gumentative and insubordinate. The Respondent's argu- ment concludes that for these reasons and these reasons alone the reassignment of Bunyan's responsibilities was made. To establish this defense, the Respondent called upon Supervisor Wyka and Tax Department Manager Bridge to testify. To repeat here the entire substance of their testimo- ny would unduly lengthen this decision. However, certain items in the Respondent's indictment of Bunyan's work and work attitude clearly demonstrate the alleged founda- tion upon which the above defense rests. Bridge testified that he was an accountant in the tax department before becoming a supervisor and ultimately the manager of the tax department. In these various capac- ities, he had an opportunity to both observe and supervise Bunyan from the time of the latter's return to the Respondent's active employ in 1965. He testified that Bun- yan frequently engaged in heated arguments with supervi- sors and that due dates assigned to Bunyan for completion of various work projects were not met. Bunyan also failed in his duty to keep his supervisors current with his work progress on various projects and often worked on tasks not assigned to him. Because of this, according to Bridge, it was necessary at times to assign other accountants to com- plete projects which Bunyan had not completed within the allotted time. Bridge further testified that Bunyan frequently was tar- dy. This last matter was'supported by introduction by the Respondent into the record of the times Bunyan reported to work over a period from January 2, 1973, until Novem- ber 15, 1973. During this period of time Bunyan was late some 47 days, sometimes by only a few minutes but often as long as almost one-half hour. In addition, Bridge testi- fied to the effect that he had received complaints from 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bunyan's fellow employees as to why Bunyan was treated as a privileged employee while the other employees had to adhere strictly to the Respondent's work rules. Both Bridge and Wyka testified to specifics with regard to the above listed alleged failings of Bunyan. Wyka testi- fied that almost as soon as Wyka was elevated to the posi- tion of supervisor in the tax department in July 1972, Bun- yan refused to give him certain material- which Wyka had requested and needed for the Missouri Edison tax return. Bunyan thereafter made unnecessary copies of the Missou- ri Edison budget in November 1972, after Wyka had given Bunyan specific instructions as to how many copies were to be made. Additionally, on November 7, 1972, Bunyan left work earlier than the time which Wyka had-assigned to him to leave in order to vote. This was the instance which led to Bunyan's filing a grievance because the Respondent refused to pay him for the time between the time he actual- ly left and the time he was given permission to leave. Also, about the same time, November 1972, Wyka instructed Bunyan to adjust for a $300 item that was unaccounted for in the Missouri Edison budget , which totaled over $1,000,000. Despite Wyka's instructions, Bunyan neverthe- less persisted in attempting to make a reconciliation of this minimal amount thus wasting much valuable time which could have been more profitably spent finishing the calcu- lations for the rest of the budget. Despite specific instruc- tions, Bunyan failed to have the 1972 tax register format typed by January 31, 1973, as he had been instructed to do by Wyka during December 1972. This brought about the necessity that the typing be completed in another depart- ment on a crash basis. Thereafter at the same time Bunyan refused to deliver the matters to be typed to the supervisor of the other department as instructed and subsequently en- gaged in an argument with that supervisor. Additionally, according to Wyka, Bunyan, further, was instructed by Wyka in early January 1973, to complete the preparation of a return known as the "towns and villages license tax return" by a date in February 1973. Bunyan objected to this completion date and, later, failed to meet the stipulated completion date. This made it necessary to reassign the work of completing the return to other accoun- tants in order that it be completed on time. Another item testified to by Wyka was Bunyan's chal- lenge of another due date. The Respondent, a public utili- ty, must file reports with Federal and state regulatory com- missions. Bunyan was informed by Wyka in February 1973 of a due date set by another department so that depart- ment could file a report on time. Bunyan objected to the due date set by the other department and engaged in an argument with a supervisor of that other department who had requested the schedules and had set the due date. Also in February 1973, Bunyan objected and challenged anoth- er due date set by still another department for the comple- tion of certain schedules that that department had request- ed of the tax department. These schedules related to the uniform statistical report. In that instance, Bunyan, with- out being instructed and despite instructions from Wyka, went to the ,requesting department and ordered copies of all the schedules that they had requested- He then took it upon himself, although he was not_a supervisor, to check another accountant's work on these schedules despite the fact that this was not his responsibility and despite the fact that in the past he had been instructed by Wyka not to do so. Bunyan further argued about another due date set in March 1973 by another department for schedules request- ed from the tax department concerning the 1973 Iowa Tax Commission. Then, when he finally did finish these sched- ules, for reasons only known to himself, Bunyan failed to give them to Wyka. There were other instances recited by Wyka and Bridge in their testimony with regard to Bunyan's alleged failings. However, it would unduly lengthen this decision to set forth all of them. Wyka and Bridge both testified that the original an- nouncement on January 31 to Bunyan of the reassignment of some of his work was made after a decision by them to do so because they realized that by reason of Bunyan's slow operation and his demonstrated lack of dependability it would be necessary to assign some of Bunyan's work to someone else in order to meet the June 15 deadline for the filing of the Respondent's taxes for the year 1972. Accord- ingly, they decided to reassign some of Bunyan's work in relation to this tax problem to Meyer, the temporary em- ployee in the department. They further testified that they were particularly concerned not only with regard to the due date for the tax return to be filed, but also because they estimated that there would be approximately a $3,000,000 refund due the Respondent which the Respon- dent wished to receive as soon as possible. Furthermore, although it is true that in past years the Respondent has been able to obtain from the Internal Rev- enue Service an extension of time to September 15 for the filing of the tax return, there was some doubt whether that service would grant the Respondent an extension from June 15 to September 15 for the 1973 filing of the 1972 return. Therefore, because Bunyan was responsible for pre- paring the preliminary working papers for the Missouri Ed- ison subsidiary of the Respondent, the preparation of these preliminary papers was reassigned to Meyer as stated. Ac- tually, despite the fact that Meyer was somewhat new to the job, having been in Respondent's employ only 5 years and having been in Respondent's tax department only 4 months, he was almost able to meet the May 1 deadline assigned for the preparation of these papers which were actually completed by May 8 or 9, 1973. While it is true that despite the concern of the Respondent that the Re- spondent would be unable to get an extension beyond June 15, nevertheless, such extension was requested and given. However, the consolidated return of the Respondent, in- cluding all of its subsidiaries, was filed on July 26, 1973, and a tax refund of $,3,800,000 was received by the Compa- ny in late August of that year. - From January 31 on, according to Wyka and Bridge, from the date that Wyka informed Bunyan that some of his work would be reassigned, the difficulties with Bunyan with regard to the-completion of his work and his work attitude seemed to increase. As related above, in February and March of 1973 a number of specific items testified to by Bridge and by Wyka in which Bunyan either argued about due dates, failed to meet due dates or engaged in work which was not assigned to him, necessitated the removal of additional UNION ELECTRIC CO. tasks from Bunyan and on April 19 a list of the assign- ments was given to Bunyan with five specific projects men- tioned. He was instructed at that time to confine himself to those projects. Among them was the inking in of the regis- ters of the Company's tax registers for the years 1967 to 1972. According to Wyka, sometime after he gave to Bun- yan these five assignments, he was unable to obtain from Bunyan any direct answer as to their status, but Bunyan told Wyka that Bunyan was working on these assignments. Further, according to Wyka, Bunyan informed Wyka on May 21 that Bunyan had, completed approximately three quarters of one of the assignments on the list but the next day Bunyan denied that he had told this to Wyka. When Wyka asked Bunyan again on May 22 what Bunyan was working on, Bunyan refused to answer Wyka. Wyka checked Bunyan's desk and found files on that desk which were not related to any assignment on the list given to Bunyan on April 19. Upon further inquiry, Wyka found that Bunyan had not completed two of the assignments which he had given to Bunyan, one of which was the inking in of the 1967 tax register. At this point Wyka told Bunyan to put away all his other work and to get the 1967 tax register out and begin inking it in. Although Wyka gave Bunyan instructions to this ef- fect at 9 or 9:30 in the morning, it was not until 2:00 in the afternoon of that day that Bunyan informed Wyka that the inking pen did not work and he had not begun inking in as a result. Thus, there is no accounting for what Bunyan did between the time in the morning when he was told to ink in the register and the time in the afternoon that he told Wyka that he could not begin the inking in because the pen was broken. J Finally, on May 24, Meyer was made a permanent mem- ber of the tax department under Wyka and was assigned all of the various duties formerly performed by Bunyan. Bu- nyan was informed of this on May 29, when he returned from an absence caused by illness. From that day until January 29, 1974, Bunyan per- formed almost no other work but inking in the tax registers and bringing them up to date in that respect.s However since January 29, 1974, Bunyan has been assigned and has been performing other accounting work. D. Discussion and Concluding Findings Both the General Counsel and counsel for the Respon- dent argue that their respective witnesses are completely truthful and that their opponent's witnesses are not to be believed. A careful check of the record reveals that there are certain inconsistencies in the testimony of the Respondent's chief witnesses, Wyka and Bridge . Moreover, both Vice President Potts and Assistant Vice President Ste- vens were unable, without assistance from their counsel, to fix certain dates and to relate with exactitude what oc- curred at various meetings with Mattingly and Bunyan. However, on cross-examination, when asked by counsel for the Respondent questions with regard to the various fail- ings later listed by Wyka and Bridge in their testimony, a Bunyan did perform a 4-hour assignment on other work during that period of time. 327 Bunyan's answers were also somewhat evasive and lacking in specificity. Although his manner was mild, Bunyan had a tendency on the witness stand to fend off the questions put to him by not making replies directed to the question but, rather, giving unresponsive answers in those instances where he could not specifically deny the failings attributed to him- I find and conclude that although Mattingly was more accurate in his recollection of what occurred at the various meetings between himself and Respondent's officials with regard to Bunyan's difficulties, as contrasted with the rath- er hesitant and uncertain testimony of Stevens and -Potts, that nevertheless there is a very substantial element of truth in the testimony of Respondent's witnesses with regard to the allegations that Bunyan was not performing up to stan- dard and that it became necessary, therefore, to reassign his work. I conclude that from that date that Wyka was appointed supervisor in the tax department, which ap- pointment constituted a second cause for Bunyan to file a grievance for having been passed over for a promotion, Bunyan and Wyka began to have differences caused prin- cipally- by Bunyan's refusal-to follow instructions. Even were I not to credit Bridge's testimony as to how Bunyan performed before Wyka's promotion to supervisor, it is evi- dent that from the time that Wyka was appointed supervi- sor the difficulties between Bunyan and Wyka began. These difficultues led to the filing of numerous grievances by Bunyan, some of which were destined for arbitration at the time of the hearing herein. Merits of these grievances are not material herein. The question presented, rather, is whether the Respondent reacted to these grievances by gradually, over a period from January 31, 1973, until the end of May, of that year, reassigning Bunyan's work to another employee and assigning Bunyan, solely to the ink- ing in of the tax registers in retaliation for his filing of these grievances, or whether the Respondent was forced by Bunyan's failure to perform up to required standard to reassign his work in order to get the work of the depart- ment performed on schedule and without argument and other difficulties. We are presented here with the situation of an employee of many years who has been active in union affairs for much of that time. Additionally, for a period of almost a decade of his employment with the Respondent, Bunyan was ill and unable to work but was, nevertheless, carried by the Respondent on its seniority list, and was accorded other fringe benefits during the period of his illness. It could be deduced, therefore, that the Respondent's resent- ment against Bunyan for filing these numerous grievances after the Respondent had treated him as a special case, and with special consideration, was sufficient to cause the Re- spondent to deprive Bunyan of his normal work and place him on the menial task of inking in the registers, which action would constitute discrimination in violation of Sec- tion 8(a)(3) and (1) of the Act. However, although Respondent's officials, especially Wyka who was Bunyan's immediate supervisor and the individual against whom a number of the grievances were directed, might have been somewhat annoyed with the filing of the grievances, I con- clude that the basic reason for the reassignment of Bunyan's responsibilities was as outlined in the testimony 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Wyka and Bridge recited above. The resentment, if in- deed it was resentment, was expressed by Potts and Stevens in their characterization of the merits of some of Bunyan's grievances. However, a close examination and analysis of the statements with regard to these grievances made by Stevens and Potts,, especially when considered in the full context of their conversations, clearly indicate that at no time did they assign the filing of the grievances as the rea- son for the change in the work assignments of Bunyan. Accordingly, although I have no doubt that some of the Respondent's officials were annoyed by the grievances filed by Bunyan, the filing of such grievances, although a protected activity under the Act, does not immunize Bun- yan against Respondent's action taken because Bunyan in other respects did not perform satisfactorily 9 It is not an easy thing to decide that an employee of many years, who is reaching retirement and who, undoubt- edly, has taken pride in his work and who has been passed over for promotion and has been deprived of much of his work and therefore much of his pride, has not suffered discrimination. However, I note in passing that Bunyan has been assigned to accounting work once again and that he has suffered no loss of earnings by reason of the action of Respondent taken against him. Although this was not a consideration in coming to the conclusion that the Respon- dent did not discriminatorily reassign Bunyan's duties to another employee, it is indicative of the manner; in which the Respondent has conducted its relationship with Bun- yan over the years in affording him consideration beyond that normally encountered in an employer-employee rela- tionship. Additionally, I have considered the probability that the Respondent, a large public utility employing well over 1,000 employees, would not go out of its way to pay a salary of approximately $15,000 a year, Bunyan's earnings, to an employee who is assigned a task so menial that all that was necessary to perform it is the ability to hold and use a pen. There is no question that the regulations of the Internal Revenue Service and the statute pertaining thereto 9 See Hawkins v N L.R B_, 358 F.2d 281, 283-284 (C A. 7, 1966). require that the registers be made permanent. Since this was not done by Bunyan for the period of years almost from the time he returned to the Respondent's employ in 1965 to the date he was assigned exclusively to inking in the registers, and since this was a part of Bunyan's normal work, I cannot conclude that Bunyan was removed from his other assignments to exclusively inking in registers for the purpose of retaliation against him for filing grievances. The Respondent has the right to make work assignments within any job classification that it chooses in order to best utilize its work force and in order to efficiently operate its business. The only restriction upon that right, insofar as the Act is concerned, is that Respondent not assert such right for discriminatory purposes. Accordingly, under all of the circumstances hereinbefore recited, I find and conclude that the General Counsel has not established by a prepon- derence of the credible evidence that the assignment ac- tions taken in regard to Bunyan were for such alleged dis- criminatory purposes. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent in reassigning the duties, tasks, func- tions, and responsibilities of Matthew Bunyan has not vio- lated Section 8(a)(3) and (1) of the Act. - Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(b) of the Act, I hereby issue the following: ORDER 10 It is ordered that the complaint herein be and the same hereby is dismissed. 10 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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.