New Era Electric Cooperative, Inc.

NEW ERA ELECTRIC COOP., INC. New Era Electric Cooperative , Inc. and International Brotherhood of Electrical Workers, Local 346, AFL-CIO. Case 16-CA-5478 April 21, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 8, 1975, Administrative Law Judge Wil- liam J. Pannier III issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and the Respondent filled cross-exceptions and 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 briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. i The Administrative Law Judge found that the second-class lineman position filed by Newland on December 19 is not substantially equivalent to the first-class lineman position formerly held by Hart. Newland was assngned to a position on the construction crew, whereas Hart had formerly performed maintenance work. The Administralive Law Judge based his conclusion that Newland's position is not substantially equivalent to the first-class lineman position on the lack of evidence that Hart was qualified to perform construction work. Assuming without deciding that Hart was an economic striker, we agree with the Administrative Law Judge that the two positions are not substan- tially equivalent, but for reasons different from those advanced by him. Since the serviceman category is equivalent to first-class lineman and is the highest ranking among Respondent's maintenance and construction em- ployees, Hart would undoubtedly be qualified to perform the work assign- ments of a second-class lineman, as admitted by Respondent. However, even assuming that Hart is qualified to perform the work, the two lineman positions are not substantial equivalents. A first-class lineman such as Hart acts as a "troubleshooter" for Respondent, drives a truck, has an assistant, and has 24-hour standby duties A second-class lineman works under a first-class lineman and has little or no overtime A first-class lineman receives a higher hourly rate of pay amounting to 10 percent more than the base pay of a second-class lineman, and, considering the amount of overtime worked by a serviceman, the differential in total pay is substantially greater Furithermore, if Hart had been hired as a second-class lineman, he would have been working under the charge of a first-class lineman with whom he had formerly been on an equal basis. DECISION STATEMENT OF THE CASE 477 WILLIAM J. PANNIER III, Administrative Law Judge: This case was heard by me at Tyler, Texas, on November 26, 1974, pursuant to a complaint and notice of hearing issued on September 20, 1974, by the Regional Director for Region 16 of the National Labor Relations Board. The complaint was based upon an unfair labor practice charge filed on February 28, 1974, and alleges a violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq., herein called the Act. All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-examine wit- nesses, and to file briefs. Based upon the entire record, the briefs filed on behalf of the parties, and upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT A. Jurisdiction New Era Electric Cooperative, Inc., herein called Re- spondent, is a corporation and public utility duly organized under, and existing by virtue of, the laws of the State of Texas, and is engaged in the-business of providing electric service and maintains an office in Athens, Texas. During the past 12 months, Respondent, in the course and conduct of its busi- ness operations, derived gross revenues in excess of $250,000. I find, as admitted in Respondent's original answer, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. B. The Labor Organization Involved International Brotherhood of Electrical Workers, Local 346, AFL-CIO, herein called the Union, is a labor organiza- tion within the meaning of Section 2(5) of the Act. C. Issue Whether between December 1, 1973,1 and September 23, 1974, Respondent failed and refused to reinstate J. C. Hart, Jr., to his former position of employment or to a substantially equivalent position of employment, and, if so, whether Re- spondent thereby violated Section 8(a)(1) of the Act? D. The June Walkout Insofar as applicable to this proceeding, Respondent en- gages in both construction work, which normally entails con- struction of poles and wires to service new customers as well as to improve existing facilities, and maintenance work, in- volving the maintaining of existing lines and facilities. The construction work is performed by a crew of several individu- als, headed by first-class lineman Al Calloway who is in charge of two second-class linemen, several groundsmen and an operator. Maintenance work is handled by four service- i Unless otherwise stated, all dates occurred in 1973 217 NLRB No. 83 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men, each of whom works in a different geographical terri- tory or zone and each of whom generally has at least one assistant. The servicemen and their assistants are responsible for stringing wire, hanging transformers , reading meters, and performing the general maintenance duties arising during the day. Additionally, servicemen also have standby duty for night maintenance. On May 29, 16 of Respondent's outside employees, includ- ing serviceman J. C. Hart, Jr., met to discuss certain griev- ances, principally relating to Respondent's safety regulations according to Hart. At this meeting a list of five grievances was prepared and the men unanimously agreed to present the list to Respondent and to walk out if Respondent did not ac- quiesce in their demands. Later on the following afternoon the employees attempted to meet with Respondent's manager, J. B. Swink,' but as the latter had already de- parted for the day, they left their list of demands with Assist- ant Manager Jack Schwartz.' On the afternoon of May 31, the employees met with Swink and with several members of Respondent's board of directors, one of whom, Vice President Woodrow Walker, read off each of the demands and rejected each of them. During the course of the meeting, then-Line Superintendent O. B. Boone, Jr., who was with the group of employees, resigned and the meet- ing ended when the man left the office. Swink testified that as the men left, they said, "We're leaving. We're quitting," and further testified that the men then went to the back of the warehouse where they commenced removing their personal belongings from their trucks, saying that they were leaving. Hart testified that following the meeting, Schwartz ap- proached him as he was standing at the back of the building and inquired if the men were quitting, to which Hart replied that the men were not quitting. Then, Hart testified, he told Schwartz that he (Hart) had suffered an injured arm and intended to go to the doctor.' Schwartz testified that Hart had reported that he had injured his arm and intended to go to the doctor, but he did not recall asking Hart whether he was quitting, although he did testify that he had asked Boone what the men were going to do and that Boone had said that they did not know. Swink testified that following the meeting with the em- ployees, he had spoken with Hart, asking that the men return so that the matter could be further discussed, but that Hart had replied, in essence, that there was nothing left to be discussed. Although Hart acknowledged that he had had a conversation with Swink on that date, he was not asked to testify as to what was said during that conversation and he did not deny Swink's testimony as to what was. said during that conversation. Swink also testified that Hart said nothing to him about the injury on May 31, although he acknowl- 2 Respondent admitted that Swink is a supervisor within the meaning of Sec. 2 ( 11) of the Act and an agent of Respondent. 3 In general, Schwartz ' duties consist of assisting Swink by performing whatever assignments the latter makes . Thus, when assigned such respon- sibilities, Schwarz has assisted in personnel relations and in directing work. However, normally his duties do not include direct supervision of mainte- nance and construction work as the direct supervision of such work is the responsibility of the line superintendent. ' Hart testified that earlier that afternoon his foot had slipped while he was getting an "eye" out of his pickup truck in Payne Springs and that he had hurt his elbow on the metal toolbox. Ultimately, the injury required surgery in August. edged that on the following day he became aware that Hart had reported the injury to Schwartz. When the men did not report for work on the following morning, Respondent pursued two courses of action. First, it treated the employees as having quit and terminated all of their benefits, e.g., major medical and life insurance, sick leave, savings plan, and long term disability.' Second, it contacted D. R. Florence Company, who had been perform- ing work for Respondent for several years, to obtain person- nel to perform the work that the employees had been performing.' On June 12, a number of the employees applied for rein- statement and, after the majority of them had signed uncondi- tional offers to return to work and had spoken with Swink, they returned to work for Respondent. E. Events Leading to Hart 's Offer to Return to Work On June 1, the day that the strike commenced, Hart visited a doctor who initially diagnosed his injury as a chipped bone and instructed Hart not to use the arm and not to work. On June 8, Hart went to Respondent's facility where, at Swink's direction, Schwartz filled out an accident report concerning the injury. There was no discussion of the walkout nor of Hart's status. However, when Hart did not receive a sick leave check, he returned to Respondent's facility on June 12, at the same time that the other employees were meeting there to offer to return to work. Swink was at home ill that morning and so Hart testified that he asked Schwartz about the sick leave and was told that his sick leave and vacation had been terminated. Schwartz testified that when the men came in that morning, Boone had acted as their spokesman in offering to return to work, but he did not recall having a conversation with Hart regarding the latter's sick leave benefits. Following the meeting with Schwartz, a number of the men then went to Swink's home to discuss returning to work for Respondent. Hart accompanied them and he testified that while there, he asked Swink about the sick leave and vacation and that Swink said that it had all been terminated, although he added that he would see that Hart's arm was fixed. Hart testified that he told Swink that he was still under a doctor's care during their discussion, but that Swink did not say any- thing about returning to work. Swink testified that he recalled only discussing the sick leave with Hart on this occasion, acknowledging that he had told Hart that "when you all quit working the sick leave and everything stopped." However, he admitted that he did not. "remember a whole lot of the discus- sion" and that while he did not recall discussing Hart's injury at that time, it was possible that Hart had said that he still had not been released by the doctor as yet. Schwartz testified that around the first of July, Hart came in to pick up some tools and the two of them discussed Hart's In its original answer, Respondent admitted the allegation that "From on or about May 31 to on or about June 12 , certain employees of Respond- ent employed at its Athens, Texas, facility ceased work concertedly and went on strike." 6 Schwartz testified that Respondent had previously retained Florence as a contractor and that at the time of the walkout , Florence's personnel had been performing construction work for Respondent. Swink testified that under Respondent's contract with Florence, which is indefinite in term, the latter provides the number of men that Respondent needs at any given time, which could vary between I and 50 in number. NEW ERA ELECTRIC COOP., INC. 479 desire for payment for a key ring that Hart had purchased for some of Respondent's keys. However, Schwartz further testi- fied that Hart did not make any statements about getting all of his personal belongings. Hart testified that his next contact with Respondent fol- lowing the June 12 meeting at Swink's home was occasioned by a letter which Hart received from his personal insurance company stating that Swink had reported that Respondent would no longer be making payroll deductions for the premi- ums on that policy. Hart testified that he went to see Swink about the matter and that Swink said that Hart would not be getting another check. Then, Hart testified that he asked Swink for a report on his retirement and that Swink replied that Respondent had already sent for Hart's retirement check which he estimated would arrive approximately 20 days thereafter. Hart placed this conversation as occurring in early July, but Swink testified that in June, Hart came to Respon- dent's facility for his personal belongings and while there asked for his saving' s plan or retirement check which Swink said that he could have in approximately 2 weeks. Although Swink denied that Hart had merely asked for a report on this occasion, he did admit that when he spoke with Hart con- cerning the matter, Respondent had already made the request for Hart's retirement check to be mailed. Hart telephoned Swink on the date that the latter had estimated that the check would reach Respondent-Hart tes- tified that this was July 22 or 23, while Swink placed it on the July 27-and upon ascertaining that Respondent had re- ceived the check, came to the plant to pick it up. Hart testified that it was on this occasion that he told Swink that he also wanted to pick up his personal belongings. As noted above, Swink testified that Hart had already picked up these items. On October 15, Hart was released to return to work by his doctor and on that same date he telephoned Swink to notify him of the release. Swink, however, told Hart that there were no openings. On October 17, Attorney John B. Waldrip sent a letter to Respondent, attention of Swink, which, in perti- nent part, states: I represent Mr. Hart regarding his industrial injury received May 31, 1973. Mr. Hart was released by his doctor too [sic] return to work effective Monday, Octo- ber 15 , 1973. I know there is some dispute whether or not Mr. Hart is eligible to return to work as he may have been terminated, either at his own request or by the conduct of the company following a walk -out by other employees of New Era Electric Coop. on June 1, 1973. Mr. Hart assured me that he did not participate in the walk-out as he was injured and under the care ofa doctor on that date. Mr. Hart informed me that he contacted you on Monday, October 15, 1973 regarding his return- ing to work and at that time you did not know whether or not your company would accept him back. This letter will suffice as an unconditional offer by Mr. Hart to return to work, both in relation to his industrial accident and regarding the walk-out, if in fact, he participated. The actual purpose of this letter is to put you on notice that Mr. Hart is ready, willing, and able to continue his employment with New Era Electric Coop . [Emphasis supplied.] During this same time period, an unfair labor practice charge, - docketed as Case 16-CA-5290, had been filed by the Union which had been particularly concerned about the status of Hart. On October 24, Respondent's then-representative, Jerry R. Holleman, mailed a letter to an agent of the Board intended to serve as a basis for approval of a withdrawal request filed by the Union, which was then in fact approved by the Regional Director for Region 16. This letter states, inter alias - 2. Mr. Hart will be eligible for reinstatement (a) when a vacancy in his position occurs; (b) when he repays the money to his pension fund or agrees to start his pension anew. He must agree that this is not to prejudice our position where workmen's compensation is concerned inasmuch as we consider that he was on strike or had quit and was not eligible for workmen's compensation. Further, since he was on strike, he would have been eligible for no sick leave or other insurance benefits dur- ing the period of absence. Not until September 23, 1974, was Hart offered his former position of serviceman with Respondent and then only as a result of negotiations between the Union and Respondent. G. Respondent's Employee Complement Prior to May 31, Hart had been a serviceman. As set forth in section II, D, supra, Respondent's maintenance operations are divided into four zones with a serviceman and at least one assistant assigned to each zone. On May 31, each of Respon- dent's servicemen was classified as a first-class lineman.' They were Hart, James Green, L. R. Porter, and Jerry Smi- ley. In addition, a fifth first-class lineman, Al Calloway, was the foreman on Respondent's construction crew a Two em- ployees, Jimmy Harris and Ronnie Alexander, were em- ployed on May 31 in the classification apprentice lineman, a classification occupied by employees working their way up to first-class lineman status. Five employees (Freedy Bowman, Dewey Holloway, Donnie Boyd, Ray Massengill, and John White) were classified as groundman/operator, with the clas- sification of groundman being one which is occupied by em- ployees having no experience in electrical work and that of operator being occupied by employees who operate equip- ment, such as the digger trucks. No employees were classified as second-class linemen on May 31.9 Swink testified that after the men returned in mid-June, Porter, Smiley, and Green resumed their duties as serviceman and, as Hart had not returned, Swink testified that he be- lieved that his place was taken by Jimmy Harris, who was reclassified from groundman/operator to second-class line- man. However, Boone had resigned and, accordingly, Re- ' Schwartz characterized a first-class lineman as an employee who usually possesses the most experience and seniority, and as being able to do all phases of electrical work. 8 Thus, as Schwartz readily admitted in response to the General Counsel's question, the term first-class lineman and the term serviceman are not necessarily interchangeable, for there are first-class lineman who, like Callo- way, do work other than maintenance serviceman. 9 This classification is utilized for individuals who are capable of perform- ing most, but not all, of the duties of employees in the first-class lineman classification, as well as for those who lack the experience of first-class lineman 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent had need of a line superintendent. Swink testified that this position was offered to serviceman Green who ac- cepted the position with the express understanding that if he did not feel that he could handle it, he was to be permitted to return to being a serviceman. Accordingly, testified Swink, one of Florence's employees, Don Newland, served thereafter as serviceman on the route which Green had been servicing. However, Swink testified, in September, Green' expressed dis- pleasure with his position as line superintendent and though he changed his mind on this occasion, he later told Swink, "I'll stay with you until you find someone." Thus, Swink testified that he interviewed about three people, selecting Dave Highers who reported December 1. Green, who had been in the hospital in early December, resumed his duties as serviceman on December 10, replacing Newland who, Swink testified, was hired on December 19 by Respondent, and worked for a week performing construction work as a mem- ber of Calloway's crew. Green, who had participated in the walkout, testified that he commenced working as line superintendent on July 1, only after having secured Swink's promise that he would be per- mitted to resume his duties as serviceman if the superintend- ent's job proved unsatisfactory. Green further testified that when he was promoted to line superintendent, Harris was promoted to replace him as serviceman, just as Newland had replaced Hart as serviceman after May 31. However, when the superintendent's duties "got too much on my nerves," testified Green, he requested that he be permitted to return to his serviceman's duties and, following his hospitalization in early December, he resumed working as a serviceman on December 10. Thereafter, the four servicemen, Green testi- fied, were himself, Smiley, Porter, and Harris. Schwartz appeared more than minimally confused by the sequence of events in connection with the staffing following the walkout. Thus, he testified that Green was promoted to line superintendent "around the 1st of August or last of July-about that time." This, of course, is contrary to the testimonies of Swink and Green, both of whom placed this much earlier in time, consistent with the fact that Boone had resigned on May 31. Schwartz further testified, as had Green, that Newland was the serviceman on Hart's route following the employees' return to work in June, but Schwartz also testified that Harris was transferred permanently to the posi- tion of serviceman following Newland's departure and, thus, replaced Newland. This also is at odds with the testimony of Green that when he became line superintendent, his position as serviceman was taken by Harris. Schwartz also testified that Newland moved out of serviceman's work "about the 1st of November or around November sometime," but admitted "I can't recall exactly." General Counsel did not dispute Respondent's testimony that following Higher's commencement of employment and Green's return to the position of serviceman, there were no vacancies in maintenance positions. Analysis General Counsel argues that Hart was an economic striker entitled to reinstatement since on or about December 1, fol- lowing his unconditional offer to return to work, and that Respondent violated Section 8(a)(1) and (3) of the Act by refusing to reinstate him. To support this contention, four arguments are advanced. First, based on Schwartz' testimony that Newland ceased performing serviceman's work "about the 1st of November or around November sometime," the General Counsel argues that Hart should have been offered reinstatement in Novem- ber to the position which Newland had vacated. However, Schwartz' testimony is not the only testimony in the record concerning the date upon which Newland ceased performing the duties of a serviceman, for Swink testified that Newland worked until the "day that Green was supposed to go back out on the service truck"-presumably, December 1, since the 10-day delay in Green's return was occasioned by Green's hospitalization in early December. Based on my observation of these two witnesses and on my review of the record, I feel that Swink, not Schwartz, should be credited in this regard. Schwartz appeared to be attempting to testify honestly, but his recollection of events was unreliable. Thus, he testified that Green was appointed line superintendent in late July or early August-testimony which is controverted not only by the testimonies of both Swink and Green, but also by the objective consideration that Boone resigned on May 31, thereby necessitating his replacement as line superintendent much earlier than late July or early August. Moreover, Schwartz testified that Harris became a serviceman to replace Newland when the latter departed. While there is no evidence to controvert Schwartz' testimony that Harris had been per- manently promoted to the position of serviceman, Green's testimony does show that Harris was promoted to replace Green, not Newland. Finally, Schwartz admitted that he could not "recall exactly" when Newland vacated the posi- tion of serviceman. Thus, I do not credit Schwartz' testimony that Newland ceased being serviceman on November 1 and, accordingly, I find that there was no vacancy for Hart to fill at that time. General Counsel's second argument is that: "Even if one considers Newland's departure, Higher's arrival and Green's job switch as one event, the fact remains that there had to be an opening for a serviceman beforeGreen could move into the position." That there had to be a vacancy for Green to fill is axiomatic. However, the record is clear that after Green's replacement as line superintendent , the four servicemen were Green, Smiley, Porter, and Harris. Thus, it is obvious that, as Swink testified, Green replaced Newland as the fourth serviceman. If the General Counsel is arguing that Hart-not Green-should have been selected to fill that posi- tion, such an argument does not support the allegation that Respondent violated the Act for two reasons. First, Green had engaged in the walkout and thus, assuming that Hart also participated in that walkout, both men enjoyed equal status as past participants in a strike. Respondent would derive no advantage in selecting one over the other on the basis of their past activities. Secondly, in June, before Hart offered to re- turn to work, Green had secured Respondent's promise that he would be permitted to return to the serviceman's position if the line superintendent's job proved unsatisfactory. Thus, in restoring Green to that position, Respondent was merely honoring a commitment made prior to Hart's offer to return to work. Therefore, it cannot be maintained persuasively that Hart, rather than Green, should have been installed in the serviceman's position in December when it was vacated by NEW ERA ELECTRIC COOP., INC. Newland. Since there is no dispute concerning the fact that there were no vacancies which arose thereafter in the ser- vicemen's positions, neither can it be maintained that Re- spondent violated the Act after Green was restored to the status of serviceman. The General Counsel's third argument to support his con- tent ion that Respondent violated the Act in failing to rein- state Hart is that under the terms of its contract with Flor- ence, Respondent should have replaced Newland with Hart immediately upon the latter's application for employment as it had done when the other employees returned to work in June, since Newland was but a temporary employee. At first blush, this is a most appealing argument. But it is nc lacking in drawbacks. First, Schwartz' testimony that Harris' promo- tion to serviceman was permanent is uncontroverted and, accordingly, the only serviceman whose tenure might even arguably be temporary on and after October 15, was that of Newland. Yet, there was no dispute regarding Swink's tes- timony that as early as September, Green had expressed both dissatisfaction with his duties as line superintendent and the desire to resume his prior duties as serviceman. At some point thereafter, the latter became a firm request by Green and, although he was willing to continue serving as line superin- tendent until Respondent had had an opportunity to secure and interview applicants, to select one of those applicants to replace Green as superintendent, and to afford the applicant selected, Highers, the time needed to report to Athens from Ozark, Arkansas, this hardly afforded a basis for replacing Newland with Hart, thereby depriving Green, who had par- ticipated in the walkout, of the position which had been promised to him prior to the time that Hart applied for reinstatement: A, second drawback to the General Counsel's argument that Hart should have been reinstated to Newland's service- man position is the fact that there was some ambiguity in Hart's status throughout the events involved in this proceed- ing. Thus, while Hart did participate in the May 29 meeting and did vote in favor of a walkout, and, although Hart did attend the employees' meeting with Respondent's board of directors, Swink's testimony that the men said that they were quilting when they left that meeting stands uncontroverted, as does his testimony that the men then began removing their personal belongings from their trucks, saying that they were leaving. True, Hart did tell Swink that there was nothing left to discuss and did state to Schwartz that the men were not quitting, but Hart was not removing his personal belongings from his truck as were the other employees and, in fact, it was Boone, not Hart, who spoke for the employees on that occa- sion. Moreover, Hart made a point of telling Schwartz of the injury and of the fact that he was going to see a doctor. Thus, there could be room for doubt as to whether Hart was actu- ally acting in concert with the other employees. His subse- quent conduct in completing an accident report, seeking sick leave and protesting the termination of his benefits on the grounds that he was physically incapacitated and under a doctor's care, could only compound any such doubt.10 Such conduct is more consistent with inability to work rather than with withholding services concertedly with other employees. 10 Even at the hearing in this matter, Hart did not actually testify that he had been a participant in the walkout 481 In fact, even after the other employees sought to return to work, Hart never attempted to clarify his status-he did not ally himself with the other employees who were terminating their activity, but continued to predicate his circumstances on his injury by requesting sick leave and by pointing out to Swink on June 12 that he (Hart) was still under a doctor's care. True, as the General Counsel points out, Respondent did place Hart in the same category as the other employees, but, as Swink and Schwartz testified, this category was one of employees who had, as they had asserted on May 31, quit. Not until June 8, after his benefits had been terminated, did Hart return to Respondent to file an accident report. Hart's status became even more baffling in light of the letter of October 17, in which Hart's attorney states that Hart "assured me that he did not participate in the walkout." The General Counsel relies on Holleman 's subsequent letter to support the contention Respondent was aware that Hart had been engaged in protected concerted activity. However, this letter was transmitted in an effort to resolve an unfair labor practice charge and appears to be primarily designed toward that end in that it concentrates on the conditions which must be met to effect approval of the withdrawal request, in a manner consistent with the position of all parties , e.g., "we consider that he was on strike [as obviously asserted by the Union and the Regional Office, and possibly also by Hart by this time] or had quit [Respondent's position]." This letter can hardly be construed, in any event, as a statement of Respondent's position regarding its feeling as to Hart's status. The letter does, however, raise significant point with re- gard to the General Counsel's argument that Newland should have been replaced by Hart on October 15, for Holleman's letter was sent while Newland still occupied the position of serviceman and, obviously, after Hart had applied for rein- statement. Yet, all parties were satisfied with Respondent's agreement to reinstate Hart "when a vacancy in his position occurs," and on the basis of this letter, the withdrawal request was approved, thereby tacitly acknowledging the ad^uacy of Respondent's commitment. It could, of course, be-e argued that the Regional personnel were unaware of Newland's status at that time, but this surely would not be the case by the time that the complaint issued in the instant case. Yet, this complaint alleges only that Respondent acted unlawfully "On or about December 1, 1973, and at all times since .. .. '-thereby continuing to adhere to the tacit acknowl- edgement that Hart's rights under the Act were not infringed on by the continued employment of Newland between Octo- ber 15 and December 1. Although the General Counsel inter- rogated Swink concerning the nature of Respondent's con- tract with Florence, at no point did he alert Respondent that it might later be contended that Respondent had violated the Act by failing to reinstate Hart prior to December 1, or that it might be argued that Hart should have replaced Newland on and after October 15. This is significant for, as found above, Green, who ultimately replaced Newland, had already indicated a desire to resume his former duties as a serviceman by the time that Hart applied for reinstatement, and at some point after that initial indication in September, he made a firm request based on Respondent's prior commitment. This request may have occurred prior to October 15, with the delay in restoring him to that position being accounted for by the fact that Respondent had to interview applicants, select 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a replacement, and afford that replacement an opportunity to report for work. Respondent did not go into the matter except to the extent necessary to explain the events on and -after December 1, the only time period alleged in the complaint. Nor did Respondent pursue the matter of its belief regarding Hart's status between June 1 and October 24, for on the latter date it had made a commitment to reinstate Hart to the next available position and, accordingly, the events which tran- spired previously were immaterial except to the extent that' they shed light on the time period alleged in the complaint. Thus, while in other circumstances, the 46-day difference between October 15 and December 1 might be treated as a mere variance between the proof and the pleadings in this case, in view of the October 17 letter, and the withdrawal, I feel that there is no alternative but to reject the General Counsel's argument that Respondent's violation is estab- lished by its failure to reinstate Hart by replacing Newland on and after October 15, since Respondent was not accorded sufficient notice to enable it to fully litigate such a matter. The General Counsel's final argument in support of its contention that Respondent violated Section 8(a)(1) and (3) of the Act by failing to reinstate Hart is that, on December 19, Respondent hired Newland as a second-class lineman and that since a second-class lineman is substantially equivalent to a first-class lineman, Hart should have been offered the position which was given to Newland. In making this argu- ment, however, the General Counsel overlooks a very impor- tant distinction-first-class and second-class linemen are classifications, not positions, with the result that not all first- class linemen perform the same duties; e.g., Calloway is clas- sified as a first-class lineman, but occupies the position as head of a construction crew. Hart is a first-class lineman, but he occupies the position of serviceman handling maintenance work. The position of serviceman doing maintenance work is also occupied by a second-class lineman, Jimmy Harris. New- land, when hired on December-19, was classified as a second- class lineman, but he was assigned to a position on Calloway's crew doing construction work. There is no evidence of any necessary correlation between classification and position at Respondent's operation. There is no evidence that `the duties which Newland performed on Calloway's crew were substan- tially equivalent to those which a maintenance serviceman performs. Indeed, there is no evidence that there has been any interchange between the maintenance and construction crews, or that Hart possesses the qualifications needed to perform construction work. Moreover, there is no evidence that Respondent harbored animus toward Hart, such that it would violate the terms of the October 24 letter and assign work which was substantially equivalent to that of mainte- nance serviceman to someone other than Hart. In these cir- cumstances, I find that the General Counsel has failed to establish' that Respondent had a vacancy in a position sub- stantially equivalent to that which Hart had occupied, and that Respondent failed to offer Hart employment in that position. Therefore, .I find that since on or about December 1, Re- spondent did not possess any vacancies to which Hart could have been reinstated and, consequently, that it had not been shown that Respondent violated Section 8(a)(3) and (1) of the Act by failing to offer reinstatement to Hart between Decem- ber 1 and September 23, 1974. CONCLUSIONS OF LAW L 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. Respondent has not violated the Act by failing and refusing to reinstate J. C. Hart, Jr., to his former position of employment between December 1 and September 23, 1974, and Respondent has not in any other manner committed unfair labor practices within the meaning of the National Labor Relations Act, as amended. [Recommended Order for dismissal omitted from publication.]