The Union Water-Power Co.

UNION WATER-POWER CO. The Union Water-Power Company and Nelson D. Ham. Case 1-CA-10878 December 7, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On June 10, 1976, Administrative Law Judge Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, the Respondent- filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law, Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, The Union Water-Power Company, Lewiston, Maine, its offi- cers; agents,_ successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The charge was filed on July 14,1975.1 The complaint was issued on January 22, 1976. The hearing was held on March 29, 1976, in Lewiston, Maine. The issue litigated was Respondent's motive for discharging -Nelson D. Ham on June 5. For the reasons set forth below, I find it was, in legally significant part, Ham's union activities and Respon- dent thereby violated' Section 8(a)(3) and (1) of the National Labor Relations Act,_as amended. Upon the entire record; including my observation of the demeanor of the witnesses, and after due consideration of briefs, I make the following: 1 Dates are 1975 unless otherwise indicated FINDINGS OF FACT 1. JURISDICTION II. THE UNFAIR LABOR PRACTICE 43 Respondent, a Maine corporation, is engaged in the State of Maine in the business of raising and storing lake water and controlling its flow for the purpose of power generation by its industrial customers.-IL annually receives more than $50,000 for services performed for companies directly engaged in interstate commerce. A. Facts Respondent controls the flow of the Androscoggin River by a system of dams. The dam located at Errol, New Hampshire, is the most important because all the water from the dams above it funnels through it and it alone controls the entire drainage area below it. Errol Dam is approximately 84 miles from Lewiston, where Respon- dent's office is located. Nelson Ham worked for Respon- dent from June 1958 until June 5, 1975, when he was discharged. For approximately the last 5 years he was superintendent of Errol Dam. Before that, he superintended the Upper Dam. Respondent has only one employee, the superintendent, at each of its dams. The rest of its employees are headquartered in Lewiston. The superintendent lives in a house at the dam furnished by Respondent. He opens and closes the gates as required to maintain the flow of the river. He collects data and keeps records on the level of the river, rainfall in the area, and other factors which affect the state of the river. He also performs various handyman chores such as maintaining the house or other property belonging to Respondent. He has a sensitive and responsible job. William Grove is Respondent's agent and engineer, the chief executive position in the Company. He has held it for more than 4 years. The odd jobs aspect of a dam superintendent's job has long been a source of dispute between Ham and Respondent' s agent, whether Grove or Grove's predecessor. Since superintendents work alone and at a distance from Lewiston, they are not supervised in the usual sense of the word. They are free to set their hours as they see fit, provided, of course, they tend the dam properly. Although they are really on duty around the clock, they are paid on the basis of a 40-hour week. Under the provisions of the Fair Labor Standards Act,' they are entitled to time and a half for hours worked in excess of 40 per week. They are under instructions to so schedule their activities that they do not actually work more than 40 hours in any week and to show no more than 40 hours of work done on their weekly timesheets. Ham has always taken the position that tending Errol Dam is a 40-hour-per-week job without additional handyman chores. In September 1971, for example, he wrote a letter to Grove which said in part: For my part I want the same thing that I wanted when I left Upper to take this job. Namely, some sort of a written understanding that the-pay for this job is to be 227 NLRB No. 9 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paid for running the water 24 hours a day and 7 days a week. And that the duties of the job consist of just exactly that. If the company insists on this particular job in reserving the right to fill in what they imagine to be a time deficit between a figure that they insist that I write on the time sheet and the 40 hours a week, with odd jobs around the place, then I shall resent it. If in order to do this your job evaluation seems to call for a reduction in my pay, then reduce it. In other words, Ham thought he was entitled to overtime for odd jobs; Respondent thought otherwise. This argu- ment was brought to a head by the timesheet which Ham turned in for the week ending May 10. On it he reported that he had worked a total of 61 hours. The International Brotherhood of Electrical Workers, AFL=CIO, sought to organize Respondent's employees in 1971 but lost a. Board election. In the beginning of that campaign, Ham actively worked for the Union by signing up his fellow employees. In the closing stages, he expended his efforts on trying to persuade them to vote against it. In August 1974 he telephoned an employee named Harold Adams and discussed with him the possibility of starting a new campaign. They dropped the idea when Adams reported that the employees were not interested. In January 1975 Ham met with Adams and another employee named Philip Allen at a restaurant in Rumford, Maine. They discussed the same subject. On May 11 Ham gave blank union authorization cards to a superintendent named Curtis at Curtis' house at one of the other dams. On May 31 Ham gave cards to Adams at Adams' house in Lewiston. Adams and Curtis did not return any signed cards to Ham until after Ham was discharged by Grove on June 5. In the interim between the 1971 organizing campaign and 1975, Ham talked to Grove on a number of occasions about the pros and cons of union representation for Respondent's employees. Grove went to Errol Dam on May 29 to talk to Ham, principally about the May 10 timesheet. Before Grove could begin, Ham asked Grove to hear him out first. Ham, began by reminding Grove he had started the union campaign in 1971 and by claiming credit for the Union's ultimate defeat. He then raised the subject of odd jobs. He said that he had reported 61 hours on his May 10 timesheet in order to make the point that Respondent was assigning him overtime work but not paying him for it. He expressed again his desire to have Respondent limit his duties to dam tending only,, He said he was,willing to take a 25-percent cut in pay if he could only be relieved of maintenance chores. Grove said he was as much entitled to the credit for beating the Union in 1971 as Ham. He said the time report was the very subject he had come to Errol Dam to talk about. He said Respondent, did not expect anyone to work 61 hours in a week. He, said that, if Ham-had, he had acted irresponsibly and, if he had not, he had falsified the report. He said he could no longer trust Ham and it was essential that he have superintendents on the dams in whom he had confidence. He reminded Ham that Ham had been express- ly hired to do odd jobs as well as tend the dam. The conversation ended on this note without Grove taking any action. He returned to Lewiston where he checked with Respondent's directors his decision to discharge Ham. When the directors approved, he discharged Ham on June 5. Under date of August 27, Respondent's counsel sent a letter to the Board agent investigating-this case in which he set forth in detail Respondent's reason for discharging Ham. It said, in part: I am sure that in the course of your investigation of this charge you will want to talk to Mr. Grove. I will be glad to make him available at any mutually agreeable time so that you can get further details on the matters referred to above. At that time you will also find out that Mr. Grove was thoroughly aware that Mr. Ham was a union activist. Mr. Ham liked to remind Mr. Grove of that from time to time and to threaten to call the union in or force the union out. The discharge was not motivated in any way by this action of Mr. Ham. In fact, as is quite common, the public union partisanship probably protected Mr. Ham's employment beyond a time when he normally would have been terminated. The affidavit which Grove gave to the Board agent on November 10 reads, in part: The statement in Mr. Taintor's letter to the NLRB about my knowledge of Ham being a union activist relates to what Ham told me prior to the 1971 election and does not relate to the 1975 drive, because, prior to his discharge, I had no knowledge of his involvement or any other employees' involvement. B. Analysis and Conclusions Respondent's defense is summarized thus in the portion of its brief headed "CONCLUSION": We submit that the testimony and the exhibits in this case clearly show that Mr. Grove, the agent for the company, had no knowledge of any activity of Mr. Ham in connection with the Union since the 1971 election. There' is no basis on which to impute knowledge, considering the distance between Mr. Ham's work station and Mr. Grove's office and the rarity and presumed secretiveness of Mr. Ham's contacts with other employees. In the absence of actual or imputed knowledge, it does not even become necessary to decide whether the 61 hour workweek was false only in that it contained errors or whether it was false because it intentionally listed more hours than were worked. Mr. Grove had a good faith understanding that Mr. Ham had lied to him in connection to the performance of his duties and that he was the "straw that broke the camel's back." Mr. Grove testified that he would have fired any other person on the spot, but that he delayed discharg- ing Mr. Ham because of his length of service and the importance of his position to the company...., Dis- charge having been for cause not connected with Mr. Ham's alleged union , activities, the employer must be exonerated and the complaint must be dismissed. I agree with counsel that it is unnecessary to decide whether the 61 hours listed on Ham's May 10 timesheet are UNION WATER-POWER CO. false. Ham, obviously inadvertently, showed himself as performing two different tasks in one particular hour and claimed credit for 2. His entry in the "total" space should have been 60 hours rather than 61. Ham readily conceded the mistake but vehemently denied the accusation that he had not done all the work shown on the sheet. Whether he was really entitled to 20 hours' pay at time and a half for the week ending May 10 is immaterial to the issue posed in this case. When he turned in the timesheet, he had no hope of getting it, for it is undisputed that he has not received overtime pay in the recent past at Errol Dam no matter what his -timesheet showed. His purpose was to push again for the consummation he so devoutly wished-to be relieved from odd jobs. "Straw that broke the, camel's back" was a phrase used by Grove in explaining his reasons for deciding on May 29 to discharge Ham. Other shortcomings recited by Grove were numerous. Ham asked for new pulleys some 2 years before, then failed to install the second one until April when Grove expressly ordered him to do so. Ham failed to keep in proper condition a telephone line which connects an instrument for taking water level readings half a mile below the dam with the superintendent's house. (Grove failed to put a time to this transgression. I gather that it was an ongoing condition he had been aware of for some time when he decided to discharge Ham.) Ham let his dog damage a screen door at the house and damaged and/or failed to maintain the house and another structure belong- ing to Respondent in various ways. Ham damaged a rain gauge so badly that it was unserviceable. Ham regularly caused other dam superintendents,to open and close their gates unnecessarily. In April Ham opened the gates at Errol Dam without giving warning to men working in the water above the dam. Since Ham did not deny these various charges, I can only find they are true, including the final one, discovered by Respondent after Ham's discharge, that he had stored a valuable and delicate test meter in the barn among the sledgehammers rather than in the house- The trouble with them, however, from Respondent's point of view, is that they weigh, on balance, more against it than for it. If all these items are given the significance Respondent attaches to them, Ham had demonstrated to Grove many times over the years his unfitness for the job he held. What is significant is that none of them individually had and all of them in the aggregate had not caused Grove to decide to terminate this long-term employee in a responsible position before they spoke to each` other on May 29. When Respondent throws into the scales a fact of which it learned only after June 5 "as evidence of Mr. Ham's attitude toward his job," it really protests too much. As the portion of Respondent's brief set forth above makes clear, the main thrust of its defense is that Grove was unaware of Ham's recent organizing efforts as of May 29. I have no doubt this is so, but, once again, it misses the point. Something discussed by Grove and Ham on May 29 caused Grove to decide, then and there, to get rid of Ham. They discussed two subjects. One was Ham's renewed effort to rid himself of handyman chores, a dispute which had not caused Grove to discharge him in the past any more than any of the other shortcomings recited by Grove. The other 45 was Ham's past attitude toward unionization, an attitude which had caused him to blow hot and cold as it suited his own purposes. Even if the first subject caused Grove to become irritated with Ham to the point that discharge entered his mind, if he would not have acted on that thought but for the second subject, the discharge violated the Act. The key lies, I think, in this portion of Grove's testimony on direct examination: Now, as I say, I had gone up there with the idea that I was going to speak with him about those 61 hours that he had put down. And since-I had, I could not really keep absolute silence, even though I had agreed not to talk during the time he was talking. I had gone up there with business of my own, and so I asked him at the conclusion of his talk; I told him I had things on my mind and I wished that he would listen to me in the same way that I had listened to him, without interrup- tion. And I did take serious exception to his thoughts on the union activity. I think its rather incorrect to assume that the talk I gave in 1971 only influenced him, didn't influence 15 other people. - As far as his time report went, I told him that-first of all I said, "I did come up to talk to you about your time report. Now you have already broached the subject, so I am going to carry on from there." And I said, "from your time report I must assume that you were either acting irresponsibly or had falsified it." I told him I could no longer trust his actions or reports and the agent could not operate under such circumstances. His actions led me to believe that he had exercised poor judgment. [Emphasis supplied.] Grove took "serious exception" to what Ham had to say about the 1971 campaign. He resented Ham's claiming credit for the Union's defeat which Grove thought be- longed to him. He knew, from their talks over the years, of Ham's proclivity to use the threats of unionization as a lever to achieve his own ends. Here was Ham claiming credit for defeating the Union in the context of again asking a change he had long sought in his duties. This could only be a veiled threat to turn prounion again if he did not get what he wanted. Grove immediately decided to discharge Ham. A dispute which had never before risen to the level of a cause for discharge suddenly did so when couched in terms of union activity. I find, therefore, that Grove would not have decided to discharge Ham at that moment but for Ham's union activities prior to 1975. When he implemented that decision on June 5, Respondent violated Section 8(a)(3) and (1) of the Act. Upon the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Union Water-Power Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Nelson D. Ham on June 5, 1975, for engaging in union activities, Respondent has violated Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. Respondent immediately upon receipt thereof, and be maintained by it for -60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. THE REMEDY In order to effectuate the policies of the Act, it is necessary that Respondent be ordered to cease and desist from the unfair labor practice found, remedy it, and post the usual notice. I will, therefore, recommend Respondent reinstate Nelson D. Ham and make him whole for any earnings he lost as a result of his discharge on June 5, 1975, by the payment of backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, I hereby issue the following recommended: ORDER2 Respondent, The Union Water-Power Company, Lewi- ston, Maine, its, officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees for engaging in union activi- ties. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Nelson D. Ham immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any earnings he lost, plus interest, as a result of his discharge on June 5, 1975. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post copies of the attached notice marked "Appen- dix."3 Copies of said notice, on forms provided by the 2 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as-provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 3 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a hearing, that we violated Federal law by discharging an employee for engaging in union activities, we hereby notify you that: The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all these things. WE WILL NOT discharge you for engaging in union activities. WE WILL NOT in any other manner interfere with you or attempt to restrain or coerce you in the exercise of the above rights. WE WILL offer Nelson D. Ham immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and we will make him whole for any earnings he lost, plus interest, as a result of his discharge, on June 5, 1975. Regional Director for Region 1, after being duly signed by THE UNION WATERPOWER Respondent's authorized representative, shall be posted by COMPANY