Virginia Electric Power Company

VIRGINIA ELECTRIC POWER COMPANY Virginia Electric Power Company and International Brotherhood of Electrical Workers, AFL-CIO, CLC. Case 5-CA-13316 September 29, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER On June 10, 1982, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed an answering 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, find- ings, 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and I In adopting the Administrative Law Judge's Decision dismissing the complaint in its entirety, we note that the Administrative Law Judge erred in stating that the case concerns only allegations of Sec. 8(a)(l) of the Act, and that he failed to discuss or make a finding on the 8(aX3) and (1) violation that was alleged. Thus, in addition to alleging that Respond- ent violated Sec. 8(aXl) of the Act by implicitly threatening employee Reed with reprisal because she filed a grievance and/or engaged in other protected concerted activity, the complaint also alleges that Respondent implemented the threat by assigning Reed new and additional work in violation of Sec. 8(aX3) and (1) of the Act. Inasmuch as there is no evi- dence that Respondent assigned Reed to maintain the "UEA call-out list" for unlawful reasons, we shall dismiss this portion of the complaint. We hereby correct the Administrative Law Judge's statement in sec. III, par. I of his Decision, that unfair labor practices found under this statute must be proved by substantial evidence on the record considered as a whole. The proper standard for finding a violation at the agency level is that a violation must be proved by a preponderance of the evi- dence. Substantial evidence on the record considered as a whole is the standard used by the court of appeals to determine whether or not a deci- sion of the Board is to be upheld. Universal Camera Corp. v N.L.R.B., 340 U.S. 474 (1951). In adopting the Administrative Law Judge's Decision that Respondent did not violate the Act, we note that Crone's statements to Reed in the four conversations at issue did not reasonably tend to interfere with the exercise of employee rights protected by the Act. In adopting the Administrative Law Judge's findings that Supervisor Crone's statements to employee Reed did not violate Sec. 8(a)(1), Member Jenkins, contrary to the Administrative Law Judge, does not find dispositive the absence of subjective "evil intent" underlying these statements on the part of Crone. He joins in the dismissal of these allega- tions inasmuch as under the Board's objective standard for considering the propriety of employer statements under Sec. 8(aXl), Crone's state- ments to Reed, when viewed in context, were not objectively coercive in character and, therefore, did not reasonably tend to interfere with the ex- ercise of Sec. 7 rights under the Act 264 NLRB No. 75 hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE THOMAS A. RIccI, Administrative Law Judge: A hear- ing in this proceeding was held in Lexington, Virginia, on April 22, 1982, on complaint of the General Counsel against Virginia Electric Power Company, here called the Respondent, or the Company. The complaint issued on June 22, 1981, upon a charge filed on May 12, 1981, by International Brotherhood of Electrical Workers, AFL-CIO, CLC, here called the Charging Party. The sole issue of the case is whether a low supervisor of the Respondent inferentially, by oblique hint, restrained a clerk under his command in her right to file a grievance through a union, thereby violating Section 8(a)(1) of the Act. Briefs were filed by the General Counsel and the Respondent. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Virginia corporation, is engaged in the sale and transmission of electrical energy to custom- ers in the State of Virginia. During the 12-month period preceding issuance of the complaint, a representative period, it received gross revenues in excess of S500,000. During the same period it purchased and received in in- terstate commerce products valued in excess of $50,000. I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that International Brotherhood of Electrical Workers, AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Dismissal of this complaint is dictated by one of the oldest principles of Board law. Unfair labor practices under this statute can only be found if proved "by sub- stantial evidence on the record considered as a whole." N.L.R.B. v. Glenn Raven Silk Mills, Inc., 203 F.2d 946 (4th Cir. 1953). The General Counsel's theory here is that four nothings equal one something. There simply is no affirmative evidence that Supervisor Glenn Crone, the alleged culprit, said anything to the clerk involved, Marilyn Reed, literally related to the fact she once filed a union grievance. As the General Counsel concedes in his brief, the unfair labor practice is to be seen "through the eyes of Reed," and not in the words spoken by Crone. During the day on February 13, 1981, there took place the first step on a grievance filed by Reed, claiming that 2 weeks earlier she should have been given 2 hours of overtime work instead of somebody else getting it. Later, 345 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on March 24, she won the grievance, and was given 2 hours of extra work out of turn in compensation. Reed, the only witness speaking in support of the complaint, spoke of four conversations with her supervisor, Crone, two on or about February 13, one 2 weeks later, and one 4 months later, in each of which she said she sensed a message from the supervisor that she should not file grievances, and that his intent was to treat her harshly for having filed that single one. Reed is the only clerical who works under this supervisor, sitting at a desk just outside his office; all others whom he supervises work outside the building. Who knows how many other con- versations took place between the two during the period, these four among the many. 1. Shortly before the 8 o'clock starting time on Febru- ary 13 Crone called Reed into his office and told her not "to go over my head again and that if she had a problem I wanted her to come to me and see if I could take care of it. If I couldn't take care of it she could then go to anyone that she thought would help her, but I wanted a chance at taking care of the problem." This is his ver- sion. Reed quoted him more strongly, but the idea was the same. In the course of the conversation, the supervi- sor had occasion to refer to the fact that another clerk, Donna Weikel, under a supervisor other than Crone, had been made a service coordinator trainee. There admitted- ly was no reference at all to the arbitration meeting scheduled for later that day. In the end, Crone told the girl to check in 10 minutes overtime for the time spent with him so she could be paid for it. She chose not to do that. The heart of this case, if it can be said to have a focus at all, is the one phrase out of Crone's mouth-"Do not go over my head." Did he mean "Do not go to the union with a grievance over my head to higher manage- ment?" He did not say that. Reed's testimony is that she "thought" he meant that. Much is made of the fact the supervisor found some reason to mention Weikel, one of the girls who had been given the 2 hours of overtime Reed felt was rightfully hers. There is no affirmative ex- planation of why that name was mentioned, but then, the conversation lasted 10 minutes, and surely more was said than the simple statement "do not go over my head." Crone had another explanation, and a far more con- vincing one than Reed's testimony about what she thought. About a week before February 13 Reed had gone to Clay Whitley, the district manager above Crone in the chain of command, and complained of her recent evaluation and raise. On or about February 1 a general companywide periodic evaluation had given her $52 per month more in pay, and she felt it was not enough. Crone, her immediate supervisor, heard of this complaint from the district manager only on the morning of Febru- ary 12. This was before anything happened about any grievance, for Reed said she first thought of filing a grievance when she spoke to Claterbaugh, the union president, during the day of February 12. Crone was di- rectly involved in the evaluation process which had re- sulted in Reed's exact raise. In contrast, he had nothing whatever to do either with Reed having been passed over on the overtime assignment, or with the entire grievance procedure which followed from that. At the hearing he testified his talk with Reed early on February 13 had nothing to do with the latter subject, but was provoked only by his resentment at her going to the higher boss instead of to him about her pay. A little con- ceit, perhaps, but perfectly understandable. Supported as it is by the fact of Reed having "gone over his head," as he said, an admitted fact, Crone's explanation of the criti- cal conversation is absolutely more convincing than the girl's suspicion of hidden, evil intent. I see in this conver- sation, therefore, nothing to support the complaint. 2. At or about this same time-either on February 13 or a few days later, because Reed was ambivalent as to the date-Crone told her to maintain the UEA union call-out list. This is a monthly posted listing of about 20 clerical employees covered by the UEA contract and es- tablishes a rotation system for overtime work when the occasion arises, maybe once or twice a month. It is in fact the list which Reed said had been ignored when she filed her grievance. While saying, in his brief, that he "makes no contention that this was a more onerous work assignment," the contention is nevertheless advanced that by this act Crone a second time expressed his intention of getting even with Reed for filing that grievance. But again, because no mention was made about any concert- ed or protected activities, the proof of unlawful purpose in this conversation is said to be that Crone "seemed to be upset," "was very firm," and "shook his finger at me [Reed]." But, as in the case of the first meeting, there is a perfect, and entirely lawful, explanation of the stern look and finger shaking. From Reed's own testimony: "I had told him [this of necessity means before the finger shak- ing!] that I did not want to be responsible should there be a mistake made, and he told me that I would be re- sponsible." What better explanation of the finger shaking than this, from an old naval chief petty officer affronted by a recalcitrant subordinate? Again, nothing to support the complaint. 3. The third step in the so-called ladder of cumulative evidence of union animus is a wisecrack Crone made to Reed on February 25, when going over her periodic evaluation for the year. He spoke very well of her in the detailed report, and rated her "C." This was average in the place. She asked if he thought well of her why did he not rate her higher? According to Reed: "He went on further to explain to me how an evaluation worked, that any evaluation could do more to a person than any of his talking could, and he said that he did not get mad with his employees, he got even, and that the only way he could get even was through their pocketbook." Crone first admitted saying, "I don't get mad, I get even with employees and you control employees by their left hip pocket." The witness, however, then continued with his own words in testimony: "I was explaining to her that a job with any company is worth so much money. We were also talking about advancements, promotions, and in the context of that, I guess I was philosophizing on what you do and how I do, what I believe as far as con- trolling people, and that is one way of doing it." Did Crone mean, without saying it, that he was pur- posefully denying Reed an above-average rating precise- ly because of the grievance she had filed, or was he com- 346 VIRGINIA ELECTRIC POWER COMPANY menting generally about his way of exacting full work performance by everybody? If he meant the former, it was a cold violation of Section 8(a)(3) of the Act, affirm- ative discrimination in employment. The trouble with such a reading into his words, as the General Counsel now asks me to do, is that in her charge filed on May 12 Reed accused the Company of having "discriminated" against her in employment by Crone's action that day. But a month later, on June 17, that part of the charge was withdrawn. Of necessity this means after the Re- gional Office had investigated and appraised the value of the evidence in support. Crone could not both have meant, and not meant, anti-grievance filing determina- tion. We go back to the same fundamental idea. There is no evidence or claim of any reference to statutorily protect- ed activity in this conversation, no matter whose version is accepted verbatim. Unfair labor practices are proved by affirmative evidence, not by speculations. 4. Finally, 4 months later, on or about June 1, Crone told Reed to stop interfering with the work of the other clericals in her room by talking of things unrelated to the work, and to discuss only work duties during work hours. At one point in her testimony Reed quoted Crone as follows: "He felt it was best that I did not talk or dis- tract the other employees unless it was concerning com- pany business." Crone testified he did this because Pater- son, another supervisor, who had two or three clericals under him whose desks were within talking distance of Reed, had told him to do so. As a witness Paterson cor- roborated Crone, and added Reed had been talking too much and unduly distracting the other clericals in the room. Reed admitted that, when Crone told her not to talk or to distract others, he told her the reason was be- cause Supervisor Paterson had asked him to do so. Once again, from the General Counsel's brief: "The General Counsel takes no issue with the fact that Reed may have engaged in excessive talking conversations .... " I do not think the mere fact that Reed's charge in this case had been filed by the IBEW 3 weeks earlier is sufficient reason for finding the warning that day to rise to the level of proof of any wrongdoing. In sum, the whole case really exists in the mimd of the clerical employee Reed. A number of phrases appearing in the Government's brief virtually admit as much. "From her [Reed's] viewpoint," "Reed is left to guess," "lt was logical from her eyes," "He [Crone] just left her with a reasonable impression," etc. All things considered I shall recommend dismissal of the complaint. Compare: Automobile Workers, Local No. 122 (Chrysler Corpora- tion), 247 NLRB 400, 402 (1980). ORDER 1 It is hereby recommended that the complaint be, and it hereby is, dismissed. I 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 find- ings, 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 waised for all purposes. 347