Appalachian Power Co.

National Labor Relations Board - Board Decisions

Jun 14, 1973

204 N.L.R.B. 184 (N.L.R.B. 1973)

184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appalachian Power Company and U-5 System Coun-
cil, International Brotherhood of Electrical Workers,
AFL-CIO. Case 5-CA-5590
June 14, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On February 27, 1973, Administrative Law Judge
Sidney D. Goldberg issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Charging Party
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, 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 Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Appalachian Power Company, Cleveland,
Virginia, its officers, agents, successors, and assigns,
shall take the action set forth in the Administrative
Law Judge's recommended Order.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record
and find no basis for reversing his findings
DECISION
SIDNEY D. GOLDBERG, Administrative Law Judge: This
case, tried before me at Norton, Virginia, on September 13
and 14, 1972, presents the issue of whether Wade B. Booker
was discharged for union activities or because of his inade-
quacy on the job. There is evidence of both and the determi-
nation of this issue is dependent upon the credibility of the
witnesses and the inferences that should be drawn from the
facts established by their testimony.
The complaint herein ,' issued pursuant to Section 10(b)
of the National Labor Relations Act, as amended (the Act),
alleges that Appalachian Power Company (Respondent or
the Company), interrogated Booker concerning his inten-
tion to join Local 2175, International Brotherhood of Elec-
trical Workers , AFL-CIO, and discharged him because he
expressed his intention to do so . The Company answered,
denying these allegations of the complaint and alleging that
Booker, a probationary employee, had been terminated
prior to the completion of his 6 months ' probationary period
"because of his unsatisfactory performance of assigned du-
ties ." The issues so presented came on for trial before me
as set forth . All parties were represented and were afforded
an opportunity to adduce evidence, cross-examine witness-
es, and argue on the facts and the law. The excellent brief
filed by the company has been considered.
For the reasons hereinafter set forth in detail , I find that
the Company discharged Booker because of his expressed
intention to join the Union and to refuse to work during the
expected strike and that the Company thereby violated Sec-
tion 8(a)(3) and (1) of the Act.
Upon the entire record herein , and upon the demeanor of
the witnesses while testifying, I make the following:
FINDINGS OF FACT
1. The parties
The Company, part of the multistate American Light &
Power system, operates electric generating plants in the
Commonwealth of Virginia, including one at Cleveland,
Virginia, called the Clinch River plant. It annually imports
supplies valued at more than $50,000 and has annual reve-
nues of more than $250,000. It admits that it is engaged in
interstate commerce and I so find.
The union is a labor organization.
2. Background
a. The plant
The Clinch River plant was constructed in 1958 and gen-
erates electric power by burning coal. It operates 24 hours
per day and 7 days per week, with a staff consisting normal-
ly of about 140 employees. In November 1971, when the
events involved in this case occurred, the chief official of the
plant, the plant manager, was T. W. Albion and the assis-
tant plant manager was R. E. Senter. Below these two top
officials, the major portion of the staff is divided into two
divisions, operations and maintenance, each headed by an
official having the title of "Supervisor." At this time, Thom-
as D. Watson was operations supervisor and Howard Fer-
guson was maintenance supervisor.
The employees of the operations division are assigned to
four shifts which are on duty in rotation to keep the plant
operating. The shifts are designated A,B,C, or D and each
is headed by a shift engineer. The maintenance employees,
designated as "mechanics" and "helpers," are directly su-
pervised by maintenance foremen.
1 Issued June 30, 1972, on a charge filed May 1, 1972
204 NLRB No. 35
APPALACHIAN POWER CO.
In addition to the employees in these two major divisions,
there are employees in the labor gang , who perform services
wherever needed . Probationary employees are customarily
assigned to the labor gang . Here they first learn the layout
of the plant as they perform cleaning , driving, and various
other minor chores. As soon as capable , they are trained in
the various functions of plant employees , such as coal han-
dling , and they learn other skills by helping the operating
and maintenance employees.
b. The contract
Local 2175, International Brotherhood of Electrical
Workers , AFL-CIO (the Union), has been recognized as the
collective-bargaining representative of the Company 's oper-
ating and maintenance employees at the Clinch River plant.
Other locals of the same International have been recognized
as the representatives of similar employees at other plants
of the company and 10 locals so recognized have organized
themselves into the U-5 System Council for collective bar-
gaining with the company . A contract between the Compa-
ny and these 10 locals was signed September 27, 1968,
covering the period from October 1 , 1968, to September 30,
1971. On September 29, 1971, just before the expiration of
this contract , the parties signed an agreement extending it
"through November 13, 1971."
The contract contains no requirement that any employee
become or remain a member of any labor organization. It
also specifically excludes probationary employees from its
coverage . All parties herein agree that the arbitration provi-
sions of the contract are not applicable to Booker and that
they may not be invoked to resolve the dispute underlying
this case.
3. Summary of events
Wade B. Booker was hired by the Company on May 17,
1971, and his 6 months' probationary period would have
expired on Wednesday, November 17. According to
Booker's testimony , on two occasions during the week be-
fore the strike , in the presence of supervisors , he declared
his allegiance to the Union , announced that it was his inten-
tion to apply for membership as soon as he became eligible,
and stated that he would refuse to work during the strike
that was imminent . At the close of his workday on Friday,
November 12, Booker was told that his attitude toward his
work was unsatisfactory and he was discharged.
The agreement extending the collective -bargaining con-
tract expired at midnight on Saturday , November 13, and
immediately thereafter, at 12:01 a.m., on November 14, the
union struck . By using supervisory personnel , all the re-
maining probationary employees , and company employees
from a nonunion plant , the Clinch River plant was kept
operating until the strike was settled early in December.
4. Contentions of the parties
The General Counsel and the Union contend that Booker
was discharged because of his expressed approval of the
principle of collective bargaining , his expressed intention to
join the Union as soon as he became eligible to do so, and
185
his statement that he would not work during the strike.
The Company contends that its sole reason for discharg-
ing Booker was the inadequacy of his performance as an
employee.
5. Discussion and conclusions
a. Booker 's union statements
It is not disputed that the first part of November , particu-
larly the week of November 7 to 13, was a tense period in
the plant . The agreement extending the union contract was
due to expire Saturday evening , November 13, and compa-
ny officials testified that they expected and were making
preparations for a strike.
Booker testified that , about November 1, he began to
discuss with other probationary employees the possibility
that they might be required to work during the strike. Book-
er testified that he "made it plain" to everyone with whom
he talked that he would not work during the strike because
he believed in the union and wanted to join it ; that if he had
to work the 2 or 3 days necessary to complete his probation-
ary period , he would do so and then go out on strike with
the union members.
On two occasions during the days immediately preceding
the strike , Booker testified , he made these statements in the
presence of two supervisory officials of the Company, Ed-
ward C . Carr, the maintenance foreman , and Norwood Din-
gess , foreman of the labor gang. Carr admitted having been
present in a group including Booker when there was discus-
sion about the union, but he testified that when the union
was mentioned , in accordance with instructions from top
management , he left the group . Carr testified that he did not
remember any specific comments by Booker concerning the
union, the strike , or whether he would work during it. In
view of his testimony that he moved away when the union
was mentioned , it is obvious that he had already heard some
talk on the subject and he did not attribute the union state-
ments to any other employee. Accordingly , upon consider-
ation of the testimony of both Booker and Carr, together
with the demeanor of each of them while testifying, I find
that Booker made the statements he described and that Can
heard him make them. Norwood Dingess , who was Booker's
direct supervisor, was named by Booker as having been
present, and only 5 to 7 feet away in a quiet place, on
another occasion when Booker made the same statements
concerning his intention to join the union and not to work
during its strike . Dingess was a witness in this case , but was
not questioned concerning his presence during the discus-
sion of the Union and the upcoming strike as described by
Booker. I accept , therefore, Booker's uncontradicted testi-
mony on this point and find that Dingess also heard
Booker's statements.
b. The discharge of Booker
On Friday , November 12, just before 3 p.m., the end of
the day shift , Operations Manager Watson asked Booker to
come to his office when the shift ended . A few minutes after
3 o'clock , Booker went to Watson's office , finding Watson
there alone . A moment later , Maintenance Manager Fergu-
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
son came in ; both Booker and Ferguson testified that Fer-
guson asked Booker how he liked working at the plant and
that he noted that Booker's probationary period would soon
be up. Booker testified that Ferguson then asked him wheth-
er he planned tojoin the union and that, when he answered:
"Yes, definitely," Ferguson said: "Well, make today your
last day." Both Ferguson and Watson denied that there was
any reference to the union, but both Ferguson and Booker
agreed that the discharge had been effected before Carr and
Dingess entered the room. It is not disputed that Ferguson
said these two supervisors had been summoned so that
Booker could have an opportunity to question them, if he
wished, about the matter. All five agreed that there was
some talk about Booker's performance of his duties and
that, while the company officials conceded that he per-
formed well, they claimed that he "lacked initiative."
The disputed element of the discharge interview, that is,
whether Ferguson asked Booker whether he intended to join
the union, if found, would strongly support the
Government's case. Moreover, it is separately alleged in the
complaint as coercive interrogation violative of Section
8(a)(l) of the Act.
While Booker testified to this exchange several times, he
also testified on rebuttal to a conversation which he had
with Ben Thompson, the shift engineer on D shift, to which
Booker had been assigned on the day he was discharged.
According to Booker, he had gone back to the plant, on the
night of the strike or a day later, to recover a jacket he had
left in the coal room and he met Thompson. Booker testified
that Thompson said: "I can't understand why they fired
you," and that he answered: "I don't either, unless it's just
because of the union, because I was so open about it." 2
There was also undisputed testimony by Houchins, the
plant personnel supervisor, that on November 12 he met
Booker in the hall and that Booker appeared distressed and
depressed; that he asked Booker what was the matter and
that Booker answered: "They've let me go, they've fired me,
they don't like my work." These statements by Booker, in
my opinion, seriously undercut his testimony that Ferguson,
upon receiving an affirmative answer to his question about
Booker's intention to join the union, immediately dis-
charged him. If the exchange with Ferguson had occurred
as described by Booker, it seems unlikely that, answering
Houchins' question immediately thereafter, he would have
failed to mention it or that, a day or 2 later, he would have
responded equivocally, as he did, to Thompson' s remark.
Accordingly, not only is Booker's testimony on this point
insufficient to overcome the positive denials of Ferguson
and Watson, but my total impression of these two officials
was that they were much too knowledgeable for either to
have made a statement so revealing of union animus. Ac-
cordingly, the evidence is insufficient to justify a finding
that Ferguson made the statement in question.
c. Senter's statement
In preparation for the strike set to begin at 12:01 Sunday
morning, the six remaining probationary employees of the
2 Thompson did not testify.
Clinch River plant were brought into the plant on Saturday
afternoon. They were provided with sleeping quarters so
that they would be able to remain inside the plant through-
out the strike.
Two of these probationary employees, Michael D. Killion
and Robert E. Adams, testified that on Saturday evening
four of them were sitting in their sleeping quarters talking
with R. E. Senter, the assistant plant manager, that one of
the probationers asked Senter what would have happened
to a probationary employee who had refused to report for
duty during the strike, and that Senter answered that such
an employee would have been severed from the payroll.
This testimony was not disputed. There is no reason to
question the credibility of these two employees and I find
that the exchange occurred as described. The incident is not
alleged as a violation of the Act and no such conclusion is
drawn. It constitutes evidence, however, contributing to the
finding herein that the use of the probationary employees
was part of the Company's plan for operating the plant
during the strike and that Booker's advance announcement
that he would refuse to work during the strike was the
immediate cause of his discharge.
d. The company's defense
It is the company's contention, as stated in the answer,
that its reason for discharging Booker was "his unsatisfacto-
ry performance of assigned duties."
In support of its position, the company presented testimo-
ny by 11 of the plant's supervisory staff and documentary
evidence concerning Booker and the other probationers in
the plant at the time. The testimony of the supervisors indi-
cated that Booker performed competently when he was as-
signed particular tasks in maintenance and operations, but
that he liked to talk and tended to wait until being told
before performing tasks that some of the supervisors felt he
should have done on his own. The undercurrent of their
criticism was that Booker "lacked initiative." While there
were a few references to specific instances of lax perfor-
mance,3 the characterizations were mostly subjective in na-
ture and appeared to contain at least a trace of personal
animosity. All of the Company's witnesses conceded that
Booker had never received a written or formal reprimand
and no memorandum of faulty performance was in his file.
The Company's procedure for job performance evalua-
tion of probationary employees directs that two written
7 Booker admitted that on one occasion , after he had swept a floor, Bus-
kirk , the shift engineer , told him to do it again and he did. On cross-examina-
tion, Buskirk conceded that his own standards of performance were
unusually high Buskirk also criticized Booker for failing to stay "on the
work," but, again on cross-examination, reluctantly conceded that it was part
of Booker's job to leave whatever he was doing and to open and close the
front gate when the daytime guard was not on duty. In the instances of the
ash hopper cleaning and the freeing of the coal chutes, it is obvious that the
supervisors ' testimony on each of them was based upon an initial impression
and failed to take into account Booker's uncontroverted explanation for his
delay or apparent inactivity Carr's testimony about Booker 's failure to keep
clearing away the empty bags during the relining of the ash hopper with
gunnite concedes that he , Carr , was not in direct charge of that job but had
four separate jobs going and that he merely passed thisjob from time to time.
Booker denied being on that job and McFarland, the master mechanic in
direct charge of the job, testified that he had no recollection of Booker being
on it while the gunnite was being sprayed.
APPALACHIAN POWER CO.
evaluations, on prescribed forms, shall be completed "prior
to the time the employee completes four months of employ-
ment" and that the contents of these evaluations should be
discussed with the employees. Two such forms were pro-
duced by respondent as having been in Booker's file at the
time he was discharged, but it is undisputed that their con-
tents were never discussed with him.
One of the forms, undated, was partly filled out by Nor-
wood Dingess, foreman of the labor gang and Booker's
supervisor when he was not assigned elsewhere, who testi-
fied that he made the entries "just a few days before his six
months was up, maybe a week or maybe two weeks." He
also testified that, because he had not completed it, he had
not sent it to the office.4 There were entries on only the first
page of the 2-page form and Dingess rated Booker in only
three of the six area listed. The few entries indicate a mix-
ture of competence in performance and failure to "take hold
of work." In his testimony, Dingess conceded that Booker
"knew how to do the job," that "he done his job well," and
that he did "a good job" driving a pickup truck, but he also
testified that sometimes Booker "was slow about taking
hold, being a leader and going ahead and doing the job."
He further testified that he agreed with the decision to ter-
minate Booker's employment because "he was slow about
his work." He admitted that he had never talked with Book-
er about these alleged shortcomings.
The other evaluation form produced by the Company is
dated October 3, 1971, and is signed by R. Crumbaker, the
assistant shift engineer on D shift. While the company re-
cords show that Booker, during his 134 days of employ-
ment, spent 15 days on D shift, Crumbaker testified that
Booker was not on that shift when he made out the report
and that he did not discuss it with him. This evaluation also
shows ratings of "good" in "quality of work," "dependabili-
ty," "attitude," and "aptitude," but ratings of "fair" in "job
knowledge" and "quantity of work," and an overall rating
of "good." The line, designated "Immediately qualified for
promotion," shows that it had been completed with an in-
sertion, "U.O.A. [utility operator grade A] classification," 5
but this insertion is crossed out. Crumbaker's direct testimo-
ny was that Booker, during part of the 15 days he was on
the D shift, operated the trippers and conveyors used in
running coal and that here he "did a good job." When
Booker was not running coal, Crumbaker testified, he was
sweeping and on this task "his quality work . . . was below
normal"; that "he didn't seem to want to stay on the job and
he sat around and talked to anybody that came along."
Crumbaker further testified that he prepared the evaluation
report at the request of Watson, then supervisor of opera-
tions, and that, after inserting the entry about Booker's
qualification for immediate promotion, he "scratched it
out" because he "had mixed feelings about this employee."
On cross-examination, however, Crumbaker conceded that
Booker was not only qualified for promotion to utility oper-
ator A, where he would be required to do little or no sweep-
ing, but that he was also qualified to work on the burner
° In view of this testimony, Watson's statement that he read this evaluation
repsort unfavorably affects his credibility and his testimony as a whole.
The reference by company counsel to this entry as "utility operator B"
is unjustified, as the "A," although stricken through, can be clearly seen
187
deck, where he would be required to have the competence
to step up to a "red circle" (premium pay) position as
"equipment operator." Crumbaker also conceded that
Booker was qualified "for many jobs" at the plant and that
Thompson, his superior and the shift engineer on D shift,
shared that view. His testimony about the "second
thoughts" that led him to cross out the promotion entry is
therefore, to say the least, inconsistent with this testimony
concerning Booker's qualifications.
The principal difficulty with these "job performance re-
views" as part of the Company's case, however, is that Fer-
guson, who testified that he made the decision to discharge
Booker, also testified that he did not believe that he checked
these progress reports in making his decision. The informa-
tion upon which he acted, Ferguson testified, was verbal
and consisted of reports from Carr, Dingess, and Yard Su-
pervisor Roush. This was his reason, he stated, for having
Carr and Dingess attend the meeting at which Booker was
discharged.
Although the foregoing discussion deals with the
Company's case in some detail, it must be noted that, with
a single reservation, it is both unnecessary and inappropri-
ate in this case to make any finding concerning Booker's
actual competence as an employee. The single reservation
is a finding, which I here make, that the evidence does not
so clearly prove Booker's lack of competence as to preclude
any reasonable conclusion that there was any other motive
for his discharge. On the contrary, the evidence concerning
his competency is both close and equivocal.
e. Conclusions concerning the Company's motive
It is so well established as to require no citation of author-
ity that, so far as this Act is concerned, an employer may
discharge an employee for any reason or no reason, provid-
ed that its real reason is not that of encouraging or discour-
aging membership in a labor organization. Conversely,
therefore, if the employer's real reason for discharging an
employee is that of discouraging such membership, the exis-
tence of other reasons that might have justified discharge is
irrelevant. Upon consideration of all the evidence in this
case, I find that the real reason that Booker was discharged
was his stated intention to join the union and his stated
intention to refuse to work during the strike.
In reaching this conclusion, I have given considerable
weight to the timing of Respondent's action. Ferguson testi-
fied that he made his initial decision to discharge Booker on
Thursday, November 11, the previous day, and that he
reached that decision after talking with Carr, Dingess, and
Roush .6 It has been established, without serious contradic-
tion, that Booker made statements of his intention to join
the union and to refuse to work during the expected strike-
except for the 3 days necessary to complete his probationary
period and to make him eligible to join the union-within
a day or 2 immediately preceding his discharge. It was dur-
ing this week, moreover, that tensions were increasing in the
plant as preparations were being made to operate despite
the expected strike. It is not disputed that the company
6 In view of this testimony by Ferguson, it is obvious that the well-orches-
trated chorus of testimony by all the other supervisors to prove Booker's
inadequacy for permanent employment is irrelevant
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
included the use of its probationary employees in its plans
to keep the plant operating and the record shows that all of
them were kept inside the plant, available for duty 24 hours
per day during the strike. With these preparations under
way, Booker's statement of his intention not to work during
the strike but to go out with the union members was fol-
lowed by his immediate discharge. Direct evidence of un-
lawful motivation is rarely available in these cases but the
circumstances here 7 constitute adequate evidence, in my
opinion, of the existence of the unlawful motive. According-
ly, the factual background of Booker's discharge, together
with the statement of Assistant Plant Manager Senter that
any probationer who failed to report for work during the
strike would have been discharged, makes inescapable the
conclusion that Booker was discharged because of his de-
clared intentions, and I so find.
In giving this consideration to the timing of Booker's
discharge, I do not overlook the fact that Friday, November
12, was the end of the last full week of his employment prior
to the completion of his probationary period, but Ferguson
testified that a probationary employee whose performance
is considered inadequate for permanent employment would
have had those inadequacies pointed out to him by his
immediate supervisors well before the end of the probation-
ary period and only if he failed to remedy those inadequa-
cies would he be terminated. It is not disputed that, except
for Buskirk's direction that Booker resweep a floor, no su-
pervisor ever called Booker's attention to the many inade-
quacies of performance to which they testified in this case.
Moreover, none of the defects in Booker's performance to
which Carr, Dingess, and Rousch testified had its origin in
any incident later than a date 3 weeks before Booker's ter-
mination and that one, that of Carr dealing with the failure
of someone to keep the ash hopper area clear of emptied
gunnite sacks , is not clearly established as a default by
Booker. If Crumbaker's October 3 evaluation report was, as
testified, indicative of an undesirable employee, it is diffi-
cult to understand why it was not brought to Booker's atten-
tion and why no action was taken. On the other hand,
Booker was not discharged until more than a month later,
against the background of an imminent strike, closely fol-
lowing his statement that he would not work during that
strike except long enough to complete his probationary pen-
od 8
The Company's claim that it was free of union animus is
based upon the absence of findings of unfair labor practices
in this or other cases and upon its collective-bargaining
relationship with the Union. However free of animus this
relationship might have been before and since the time of
Booker's discharge, at that particular time the parties were
about to enter into one of the most arduous struggles in
labor-management relationships, an effort to keep operat-
ing despite a strike, and an inference that the Company had
no union animus at that time would be naive.
7 The basic facts in this case are established by company proof and on the
basis of additional testimony, by Booker and others , that is either conceded
or undisputed.
8 "The abruptness of a discharge and its timing are persuasive evidence as
to motivation . . " N. L. R. B v Montgomery Ward & Co , 242 F.2d 497, 502
(C.A 2, 1957), cert . denied 355 U.S 829; cited with approval N L R B v
Advanced Business Forms, 474 F.2d 457 (C A. 2, 1972)
For the foregoing reasons, I find that the Company's real
reason for discharging Booker was his declared intention to
join the Union as soon as his probationary period was com-
pleted and then to go out on strike with the other union
members. This action constituted discrimination to discour-
age Booker from becoming a member of the Union and to
interfere with his right to engage in concerted activities with
other members of the union. Accordingly, the Company
thereby violated Section 8(a)(3) and (1) of the Act.
6. The effect of the unfair labor
practices upon commerce
The activities of Respondent, set forth in findings of fact
2, 4, and 5, above, occurring in connection with its opera-
tions described in finding of fact 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take affirmative action designed to
effectuate the purposes of the Act.
Having found that Respondent, by terminating the em-
ployment of Wade B. Booker to discourage his membership
in the Union and his activities in support of the Union,
committed unfair labor practices, I shall recommend that it
offer him reinstatement to the position he held on Novem-
ber 12, 1971, or, if that position no longer exists, to a posi-
tion substantially equivalent thereto, without loss of
seniority or other rights and benefits, and that it make him
whole for any loss of compensation he may have suffered,
computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289, and with interest at 6 percent per
annum as prescribed in Isis Plumbing & Heating Co., 138
NLRB 716.
Upon the foregoing findings of fact and upon the entire
record herein, I reach the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 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. At the time of the activities set forth in the Decision,
R. E. Senter and Howard Ferguson were supervisors of
Respondent within the meaning of Section 2(11) of the Act
and acted as its agents.
4. By terminating the employment of Wade B. Booker
for declaring his intention to go out on strike with the mem-
bers of the Union, Respondent interfered with, restrained,
and coerced employees in the exercise of rights guaranteed
in the Act and committed an unfair labor practice within the
meaning of Section 8(a)(1) of the Act.
5. By terminating the employment of Wade B. Booker
because of his declared intention to join the Union, Respon-
APPALACHIAN POWER CO. 189
dent discriminated against him to discourage his member-
ship in the Union and committed an unfair labor practice
within the meaning of Section 8 (a)(3) of the Act.
6. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDERS
be maintained by it for 60 consecutive days therafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by it to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of the receipt of this Decision,
what steps it has taken to comply herewith.
3. The complaint, insofar as it alleges violations of the
Act not found in the Decision, is hereby dismissed.
Respondent, Appalachian Power Company, its officers,
agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Terminating the employment of any employee be-
cause he or she engaged in concerted activities for the pur-
pose of collective bargaining or mutual aid or protection.
(b) Discouraging membership in Local 2175, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO, or
any other labor organization, by terminating the employ-
ment of, or otherwise discriminating against, any employee.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their right
to self-organization, to form, join, or assist the above-named
labor organization, or any other labor organization, to bar-
gain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer to Wade B. Booker immediate and full rein-
statement to his former position or, if that position no lon-
ger exists, to a position substantially equivalent to that
which he held immediately prior to November 12, 1971,
without prejudice to his seniority or other rights and privi-
leges, and make him whole for any loss of wages in the
manner set forth in the section of this Decision entitled
"The Remedy."
(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, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(c) Post at its Clinch River plant, Cleveland, Virginia,
copies of the attached notice marked "Appendix." 10 Copies
of said notice, on forms provided by the Regional Director
for Region 5, after being duly signed by its representative,
shall be posted by it immediately upon receipt thereof, and
9In 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
10 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 trial held at Norton, Virginia, on September 13 and 14,
1972, in which we participated and had a chance to give
evidence, resulted in a decision that we had committed un-
fair labor practices in violation of Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended, and this
notice is posted pursuant to that decision.
The National Labor Relations Act, as amended, gives all
employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activities.
In recognition of these rights, we hereby notify our employ-
ees that:
WE WILL offer Wade B. Booker immediate and full
reinstatement to his former job or, if this 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 loss of earn-
ings he may have suffered by reason of the termina-
tion of his employment.
WE WILL NOT discharge any of our employees be-
cause they join or assist, or express the desire or
intention to join or assist, Local 2175, International
Brotherhood of Electrical Workers, AFL-CIO, or
any other labor organization, or because they engage
in concerted activities for mutual aid or protection.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights to self-organization, to form labor orga-
nizations, to bargain collectively through representa-
tives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPALACHIAN POWER COMPANY anyone.
(Employer) This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
Dated By or covered by any other material. Any questions concerning
(Representative) (Title) this notice or compliance with its provisions may be direct-
ed to the Board's Office, Federal Building, Room 1019,
Charles Center, Baltimore , Maryland 21201, Telephone
This is an official notice and must not be defaced by 301-962-2822.