Central Power and Light Co.

National Labor Relations Board - Board Decisions

Nov 24, 1978

239 N.L.R.B. 456 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central Power and Light Company and Troy Lee Ma-
loy. Case 23-CA-6747
November 24, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On September 8, 1978, Administrative Law Judge
John F. Corbley issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in answer to the exceptions.
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, as modified herein.2
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, as modified
below, and hereby orders that the Respondent, Cen-
tral Power and Light Company, Corpus Christi, Tex-
as, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
Substitute the following for paragraph 2(d):
"(d) Notify the Regional Director for Region 23,
in writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with."
The Respondent has excepted to certain credibility findings made bh the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibilitl
unless the clear preponderance of all of the relevant evidence consinces us
that the resolutions are incorrect. Standard Dry Wall Producis. Ini . 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefulls
examined the record and find no basis for reversing his findings
2 The Administrative Law Judge inadvertently directed Respondent to
notify the regional director within 20 days from the date of receipt of his
recommended Order as to Respondent's anticipated compliance therewith.
Board policy dictates, however, that such notification occur within 20 days
of the recommended Order. Accordingly, we have modified our Order to
reflect such policy.
DECISION
STATEMENT OF THE CASE
JOHN F. CORBLEY, Administrative Law Judge: A hearing
was held in this case on May I I and 12, 1978, at Corpus
Christi, Texas, pursuant to a charge filed by the Charging
Party (hereinafter Maloy) on September 23, 1977, which
was served upon Respondent by registered mail on the
same date, and a complaint and notice of hearing issued by
the Regional Director for Region 23 of the National Labor
Relations Board on December 2, 1977, which was also
thereafter duly served upon Respondent. The complaint
alleges that Respondent discharged Maloy on or about
September 18, 1977, and has since refused to reinstate him
because of his union or other concerted activities and that
Respondent has thereby violated and is violating Section
8(aX)(1) and (3) of the Act. In its answer to the complaint,
which answer was also duly filed, Respondent has denied
the commission of any unfair labor practices.
For reasons which appear hereinafter, I find and con-
clude that Respondent has violated the Act essentially as
alleged in the complaint.t
At the hearing the General Counsel and Respondent
were represented by counsel. All parties were given full
opportunity to examine and cross-examine witnesses, to in-
troduce evidence, and to file briefs. The parties waived the
right to make oral argument at the conclusion of the hear-
ing. The General Counsel and Respondent have filed
briefs, which have been considered. Upon the entire record
in this case, including the briefs, and from my observation
of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material herein,
a corporation duly organized under and existing by virtue
of the laws of the State of Texas. At all times material
herein, Respondent has maintained its principal office in
Corpus Christi, Texas, with various facilities throughout
the State of Texas, including Corpus Christi, Texas, where
it is engaged in the production, transmission, distribution,
and industrial, commercial, and residential sale of electric-
ity in 44 counties in Southwest Texas. The Corpus Christi
facilities are involved in this proceeding.
During the 12 months preceding the issuance of the
complaint, a representative period, Respondent received
gross revenues totaling in excess of $1 million. During the
same 12-month period, Respondent purchased goods and
materials valued in excess of $50,000 from firms located
outside the State of Texas, which goods and materials were
shipped directly to Respondent at its various facilities with-
in the State of Texas directly from points outside the State
of Texas.
In his brief the General Counsel urges that I make additional findings
with respect to other matters not alleged in the complaint which he contends
are unfair labor practices and were fully litigated at the hearing. I shall deny
this request for reasons to be enumerated later in this Decision.
456
CENTRAL POWER AND LIGHT COMPANY
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE t.ABOR OR(;ANIZArION INVOLVED
International Brotherhood of Electrical Workers, AFL-
CIO and CLC. herein called the Union, is, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III1 THE ALLEGED UNFAIR L ABOR PRATICFES
A. Respondent's Relevant Hierarchiy
The persons named below at all times material herein
occupied the positions set opposite their respective names
and have been and are now agents of Respondent. acting
on its behalf, and are supervisors within the meaning of
Section 2(11) of the Act:
S. E. Kelley. Jr.
Leroy Salter
Don O. Daniel
Jack Johnson
Gene Pless
Bugger Bingham
District Manager
Distribution Superinten-
dent
District Engineer
General Foreman
Foreman
Foreman 2
Maloy, the Charging Party, began work as a Class "C"
lineman with Respondent on or about May 7. 1973. Prior
to that time, he had worked for about 10 years as a lineman
and later as a working foreman with Magic Valley Electric
Coop in Mercedes, Texas.
Maloy progressed to the position of Class A lineman in
about 1-1/2 years. The usual time within which an employ-
ee advances to the Class "A" lineman category with Re-
spondent is about 6 to 7 years. Maloy's rapid rise was in
part related to his appointment at the Class "C" level (by-
passing the lower grades of lineman-trainee and apprentice
lineman) based on his prior experience with Magic Valley.
Thereafter-at least until 1976, when he became in-
volved with the Union-Maloy was considered by his fel-
low employees and by supervisors to be a very fine employ-
ee 3 and a hard worker.4 In five employee performance
reviews by Respondent from 1973 through 1976, he was
rated 'good" or "outstanding" (the top two columns) on all
15 rating criteria. His 1975 and 1976 reviews were indeed
outstanding on all criteria except written and oral commu-
nications, where he was rated good. Special comments on
all these forms from 1973 to 1976 indicate he was doing a
2 Respondent's answer generally admitted that these individuals occupied
these positions, "are" agents and "are supervisors within the meaning of the
Act." My findings add to the admission the conclusions "at all times mate-
nal" and agents of Respondent "acting in its behalf." based on the allega-
tions of the complaint which were not denied by the answer See Sec 102 20
of the Board's Rules and Regulations and Statements of Procedure. Series 8.
as amended
3Per the credible testimony of then-fellow employees Rendon aind
Schultz.
4 Per the credible testimony of former supersisor D)avid Barber, now no
longer employed by Respondent.
"very good job" and was a "good" or "excellent" employ-
ee. His 1975 and 1976 reviews specially commented that
Maloy did a "very good job of running the crew when the
foreman was absent." All five reviews were signed by Fore-
man Jack Murr. They were endorsed, variously, by District
Manager S. E. Kelley. General Foreman Bingham, Con-
struction Superintendent Salter, and District Engineer
Daniel.
B. The Union Campaign
In March 1976. Maloy signed a union authorization card
and became a member of the Union's organizing commit-
tee. Thereafter Maloy wore and distributed union buttons
or other devices bearing the Union's name, such as plastic
shirt-pockei pen holders, key chains, and pens. He also
authored, and was a cosigner of. two letters distributed to
all of Respondent's employees in September or October
1976 and in FebruarV 1977 in which he strongly advocated
the Union.
The Respondent became aware of the union activities of
Maloy about the middle of 1976. 5
Respondent actively opposed the Union's organizational
campaign. It sent letters to all of its employees in July and
October 1976 over the signature of its chief executive,
R. W. Hardy, in which it stated that its position of opposi-
tion to unionization was well known and urged the em-
ployees to vote against the Union in an upcoming Board-
conducted election. Handouts opposing the Union were
also distributed, and at least six or seven meetings of em-
ployees were held, for example at the Corpus Christi loca-
tion. in which Respondent through high corporate officials
such as S. E. Kelley (C'orpus Christi district manager).
Hardy. and Aaron Autrey, Respondent's president, lec-
tured the employees on union strikes, fines, and assess-
ments.
Another letter, dated January 13, 1977, was sent to all
employees by the Respondent over the signatures of Hardy
and Autrey, in which the Respondent stated that it did not
want "to be forced to operate the union way" and that it
and employees could work out their differences "without
any interference from outsiders." This letter again urged
the employees to vote against the Union.
A Board-conducted election was held on February 8. 9,
and 10, 1977. Maloy was the union observer at some six
locations. The Union lost the election.
C. The Falling Out Between Respondent and Maloy
In October or November 1976, after Maloy had been
involved for some time in the Union's organizational cam-
paign, Maloy spoke with Kelley. In this conversation Kel-
ley told Maloy that Maloy's former employer had contact-
ed Respondent and said that Maloy was a troublemaker.
Kelley added that Respondent knew this before it hired
Maloy but, through Salter's insistence, hired him anyway.6
The next time Maloy confronted Kelley was on Febru-
ary 16, just after the Board election. For an understanding
Daniel so admitted.
' Malov credihbl so teslified and Kellei did not dens it
457
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of what Kelley said at that meeting, we must harken back
in time to earlier events dealing with Respondent's employ-
ment situation and its assumption of work which had pre-
viously been contracted out.
Prior to 1975, Respondent had subcontracted tree-trim-
ming work.
By 1975, residential construction in the area of Respon-
dent's Corpus Christi district had taken a downturn, and
there was less need for Respondent to maintain large crews
of construction employees. Respondent, however, decided
not to lay off any men but to attempt to ride out the reces-
sion. To keep its men busy, it assumed the tree-tnmming
work which had been performed by outside contractors
and assigned it to its own crews. In 1976, the system was to
assign this work to crews on a rotating basis. The work was
objectionable to employees, if only because of the noise
levels around the chipper (the machine used to chop up
tree limbs)-levels which exceeded the relevant OSHA
standards.
Prior to February 1977, Maloy had not been assigned to
one of the rotating tree-trimming crews.
On February 16, 1977,7 Maloy went to see Kelley about
two matters-the fact that Foreman Jack Murr continued
to fill out evaluations in pencil, and management's change
in a decision made by Maloy when Maloy was an acting
foreman. which caused employee Selso Perez to lose vaca-
tion time. Maloy had previously complained about Murr's
action of filling out evaluation forms in pencil because, in a
prior year, Murr had changed an entry on Maloy's form
from "unknown" to a favorable rating after Maloy had
seen it. While this change was an improvement in Maloy's
own specific rating, that practice and its obvious potential
for having penciled ratings changed later for the worse was
what concerned Maloy.
In any event, Maloy told Kelley that Maloy's indigna-
tion over Murr's pencil rating practice, and the raw deal
Maloy felt management had given Perez, had caused Ma-
loy to decide to "fight for the Union as long as [he] lived."
At this meeting Maloy also brought up the matter of the
danger of taking linemen, who normally climbed 45-foot
poles, and using them at another location on 120-foot
poles.
Kelley responded that the union business was all in the
past and that instead of changing the Company to Maloy's
way of thinking Maloy should start doing what the Com-
pany was doing. Kelley further responded that when Ma-
loy came to work for Respondent from Magic Valley the
latter had advised Respondent that Maloy was nothing but
a "damn troublemaker." In this same conversation, Kelley
asked Maloy what Maloy would do if Kelley put Maloy on
a tree-trimming crew. Maloy replied that if a top lineman
were rut on tree trimming it would hurt the limeman's
pride.
On February 17, Kelley made a memorandum of his
meeting with Maloy on the day before.
On or about March 18, Maloy was called by Foreman
7 All dates appearing hereinafter occurred in 1977 unless otherwise noted.
These findings are based on a composite of the testimony of Maloy and
Kelley as to this meeting. The testimony of one does not essentially conflict
with that of the other.
Graves and told to see Salter. Maloy went to Salter's office,
where the latter offered Maloy a transfer to Pharr, Texas,
at the same rate of pay and in the same classification as
Maloy already enjoyed. Maloy rejected this offer but asked
to see his personnel file.
On reviewing this file, Maloy learned that Murr had
written a memorandum dated February 17, 1977, on the
matter previously mentioned, the change by Murr of a
prior evaluation on Maloy after Maloy had signed the eval-
uation. In this memo Murr averred that Murr had advised
Maloy of the change after the change had been made.
Maloy testified at the hearing, and I find, that Murr had
never told him about the change in the review form.9
On or about March 22, Maloy happened to meet Murr
on the loading dock of their place of work. Maloy, advert-
ing to Murr's memo of February 17, stated that the memo
did not reflect the truth. At this, Murr called Maloy a liar.
Maloy responded that Murr was a liar. °0
Thereafter, Murr and Johnson, who allegedly witnessed
the foregoing incident, purportedly advised Salter that Ma-
loy had called Murr a "goddamned liar," and Salter in turn
so advised Kelley, according to Kelley.
Kelley called in Maloy in the early afternoon of March
22 and questioned Maloy about what had occurred. Maloy
denied calling Murr a "goddamned liar" but admitted call-
ing Murr "a liar" when Murr had first called Maloy the
same. After hearing Maloy's version, Kelley asked Maloy
what Maloy would do if Respondent put Maloy back on
Murr's crew. Maloy responded that this would be all right
if the documentation of the altered review matter were re-
moved from Maloy's files and if Murr would use a pen on
future evaluation reviews. Kelley also discussed the possi-
bility of moving Maloy to tree trimming. No action was
taken at the time, however.
About 4:30 that same afternoon. Maloy was again called
into Kelley's office, where he was confronted by Kelley,
Salter, Johnson, and Murr. Kelley told Maloy that Maloy
was suspended for 5 days for insubordination and not to
come back to the office.
Maloy returned the next day, March 23, to obtain the
suspension in writing. Kelley indeed wrote out a confirma-
tion and gave it to Maloy. Maloy thereafter served the sus-
pension.
On April 1, a few days after Maloy returned from his
suspension, permanent tree-trimming crews were estab-
lished, and Maloy was assigned to one such crew. Assign-
ments were made on the basis of seniority.'' Maloy became
so upset upon hearing this news at the meeting where the
tree-trimming assignments were made that he walked out,
asked for a day's vacation, and went to the doctor, who
gave him some pills.
A day or so later, Maloy spoke to Graves and asked
Graves for a few more days' vacation, which Graves re-
fused, saying he had a man out sick already. Maloy then
asked Graves why Maloy had been assigned to tree-trim-
ming work, and Graves replied that since Maloy was caus-
9 Murr did not testify.
10 These findings are based on the credible and undisputed testimony of
Maloy. Johnson. like Murr. did not testify.
I Daniel and Maloy credibly so testified with respect to seniority selec-
tion for this assignment
458
CENTRAL POWER AND LIGHT COMPANY
ing so much trouble, Graves decided that is where Maloy
needed to be.'2
A few days after being assigned to tree-tnmming work,
Maloy developed ear trouble. As previously pointed out.
tree trimminig involves the use of an automatic chipper
which makes a great deal of noise. Maloy went to his own
family doctor, who told him he had an infected ear and air
pockets behind his ear drums. Maloy reported this problem
to his then-immediate foreman, Charles "Bugger" Bing-
ham.
On or about April 24 Maloy filled out a Respondent
medical report, after which an appointment was made for
him with a Dr. E. Brown, an independent industrial medi-
cal specialist. Brown suggested that Maloy use sonic ear
plugs, which Maloy used, but unsuccessfully.
In this state of events, Maloy spoke with Kelley and
requested that Kelley transfer him until Maloy found out
from the doctor whether noise was really causing the trou-
ble. Kelley told Maloy that Kelley would either have to
terminate Maloy or have him put on disability. Kelley ad-
vised Maloy, however, that he could stay home until results
were received from an examination by an ear specialist-a
Dr. Zane-with whom an appointment was made.
Maloy went to see Zane on or about May 19. Zane gave
Maloy a note to take back to Respondent which stated:
Mr. Maloy shows evidence of hearing loss in his
ears secondary to noise exposure. He should work
with ear protection or be transferred to another posi-
tion.
Maloy was then given NRA-approved ear muffs and put
back on tree trimming. These muffs helped Maloy some,
but he nonetheless experienced ringing in his ears from his
work. Maloy took about a week and a half off from work
during May 1977.
He returned to tree-trimming work in June and contin-
ued until early July.
In July, at the suggestion of Dr. Zane, Maloy underwent
an operation for correction of his ear problem. After the
operation Maloy was off from work for about 2 weeks and
returned on July 26.
On or about August 3, Kelley spoke with Maloy at the
service center from which Maloy worked and told Maloy
that Kelley had learned that Maloy was interested in a
transfer to Pearsall, Texas. Kelley advised Maloy that he
would look into it for Maloy but that it would not do Ma-
loy any good because they had "heard" about Maloy and
his union activities at Pearsall. Kelley added that in view of
"the [way the Board election] vote went, they didn't want
people like you [Maloyl out there [at Pearsall]." With this,
Maloy told Kelley to forget it. Kelley nevertheless got back
with Maloy the next day and advised him that he had con-
tacted B. C. Kendall (Respondent's vice president in
charge of district operations) about the proposed transfer.
Kelley reported that Kendall told him that Kendall did not
want Maloy in any of Kendall's districts.
12 I find Graves to be a supervisor within the meaning of the Act and to
have occupied that status at the times in question. for he s.as a foreman at
such times, and other foremen are admittedly supersisors (e g.. Pless and
Bingham)
Maloy did not get the transfer.'3
Maloy continued to do tree-trimming work but likewise
continued to have problems with his ears because of the
noise.
On or about September 15, Maloy returned to Dr.
Zane's office. Dr. Zane advised Maloy that the July ear
operation had been unsuccessful and that another one
would be necessary. Zane gave Maloy a note to return to
Respondent, which stated:
Mr. Maloy is having increased symptoms of ringing
in his ears. He should have his job changed to protect
him from CPL [Respondent] from liability.
Maloy turned in the note, which was eventually handed
over to Daniel. the district engineer,
On or about September 16, Daniel spoke with Maloy
and told Maloy that the note looked like an ultimatum and
that Maloy had reached the end of the line. Daniel stated
that Respondent had no further use for Maloy in that dis-
trict.
On September 19, Maloy came in to get his final check.
Maloy spoke at the time with Superintendent Salter, who
told him that he was discharged.
Maloy has not returned to work for Respondent, and
tree trimming by Respondent's own crews has been discon-
tinued.
Concluding Findings
The General Counsel has made out a substantial prima
facie case that Maloy's discharge was motivated by his
union activities.
Thus, Maloy was a leader in the Union's unsuccessful
campaign to become the employees' bargaining representa-
tive. As previously recounted, he was a member of the
Union's organizing committee, distributed union buttons
or other devices, authored or cosigned widely distributed
union campaign letters, and was a union observer at sev-
eral locations for the Board-conducted election of Febru-
ary 8, 9, and 10. At his first confrontation with manage-
ment (Kelley) on February 16, after the Union lost the
election, Maloy advised that he would continue to fight for
the Union, citing two matters about which he had come to
complain-Murr's practice of doing evaluations in pencil
and Perez' problem with leave.
Management had known of Maloy's union activities
since at least the middle of 1976, as Daniel admitted.
Management actively opposed the'Union in a campaign
of letters and speeches previously described.
I further conclude that management particularly op-
posed the participation by Maloy in the Union's campaign.
For, as I ha\ e found, in the confrontation between Kelley
I The findings as to the transfer incident are based on the credible testi-
mony of Maloy, as partially corroborated by Kelley. To the extent that
Kelley's testimony is contrarv to these findings I do not credit it I found
Kelley to be an uncertain and unconvincing witness - which Is in part dem-
onstrated by the record, e g, his plain failure to answer a number of ques-
tions put to him. While Kelle) claimed he told Maloy that union activities
had nothing to do with the matter, Kelley admittedly said that the problem
was that Malo,) was a troublemaker MaloN was generall) more certain in
his testimon). Further. in this instance fv.aloy's testimony is supported b.
notes Maloy kept of the event
459
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Maloy on February 16, Kelley, after being told of
Maloy's continued allegiance to the Union, warned Maloy
that the union business was in the past and that Maloy
should start doing what the Company was doing. Kelley
also reminded Maloy in this conversation that Maloy had
come to Respondent with a reputation as "a damn trouble-
maker" (from Magic Valley) and asked Maloy what he
would do if Kelley put him on tree-trimming work. The
effect of Kelley's resurrection of the "troublemaker" mat-
ter in the context of this conversation could only be to
make Maloy feel that he was now being so classified by
Respondent as the result of his efforts on behalf of the
Union.'4 This, coupled with the question as to what Maloy
would do if Kelley put Maloy on tree trimming, was in-
tended to and did make Maloy feel that Respondent might
punish him for his union involvement. Tree trimming, as
this record amply demonstrates, is onerous and degrading
work for a top-rated lineman, assignment to which, as Ma-
loy credibly testified without dispute, caused complaints
from a number of employees.' 5
After this February confrontation, there followed a
number of attempts by Respondent to persuade Maloy to
take a transfer to another area (e.g., in March to Pharr,
Texas), but Maloy declined for various reasons.
When Maloy finally was assigned to tree-trimming activ-
ities in early April-an assignment made on the basis of
seniority, according to the testimony of both Daniel and
Maloy-supervisor Graves nonetheless reiterated what
Kelley had implied to Maloy in February-that the assign-
ment was a punishment. Even if the real basis for the as-
signment was seniority, Grave's remark itself was coercive
and further evidences Respondent's animus against
Maloy's union activities.
In early August, when Maloy, on his own, developed an
interest in a transfer to Pearsall, Texas, Kelley suggested to
him that the transfer effort would fail because of Maloy's
union activities.
Finally, when faced with Dr. Zane's warning in Septem-
ber that Maloy should be transferred away from tree trim-
ming to protect Respondent from liability for damage
caused to Maloy's hearing, Respondent did not make such
a transfer but utilized the warning as a basis for discharg-
ing Maloy. In so doing Respondent gave Maloy disparate
treatment from that of at least one other employee who
requested reassignment from tree trimming (Rendon) and
several employees over a period of years whose physical
disabilities had required them to take up less arduous du-
ties, usually inside the plant (e.g., Barrientos, Roddy Per-
ez,17 Alfred Licea, Charles Eriger, Joe Hayes, etc.). Maloy
14 "Troublemaker" is a familiar euphemism for union supporters. E.g..
The Huntington Hospital Inc., 218 NLRB 51, 57 (1975).
The question about this assignment could only have been designed to
coerce Maloy. The meeting had nothing to do with work assignments, and
management obviously had the authority to make any lawful work assign-
ment without first discussing the matter with the prospective assignee.
16 All of the foregoing amply establishes Respondent's animus against the
Union generally and against the union activities of Maloy particularly.
17 Perez was given such a reassignment in early 1977 despite Daniel's
claim that no such reassignments were made for people under Daniel after
Daniel became district engineer in 1975. Perez was under Salter, who re-
ports to Daniel. Daniel, in any event, admitted that for employees under
other supervisors in the Corpus Christi district such compassionate reassign-
himself had several times sought to be taken off tree-trim-
ming work during the prior several months--one occasion
being in May, when he sought a reassignment from Kelley
until his ear situation was finally straightened out. Kelley
told Maloy that Maloy's only job was tree trimming,
which, of course, Kelley knew Maloy disliked and from
which Maloy was suffering ear problems.
It may be noted that Rendon (who, unlike Maloy, was
reassigned from tree trimming on request) had previously
experienced difficulty working with Supervisor Murr, as
had Maloy. Maloy's alleged difficulties with supervisors
such as Murr were, per Daniel, among the reasons for
Maloy's discharge.
Respondent's failure to transfer Maloy at least tempo-
rarily away from tree timming to other duties is further
questionable on the basis of Maloy's prior high value as an
employee. Thus, Respondent gave Maloy outstanding rat-
ings as recently as 1976 (I will take up his alleged 1977
rating later in this Decision), a:ndC Maloy had been utilized
as acting foreman on several (occasions. Maloy had in all 15
years experience in utility work. Further, the tree-trimming
work of Respondent's employees (which ended on January
1, 1978) had been expected to be phased out by Respon-
dent, and such expectation was indeed mentioned by Re-
spondent's officials to the employees at the meeting of
April 1, when the establishment of the permanent tree-
trimming crews was announced.'" Finally, Respondent
made no effort in September to discuss with Dr. Zane
what, if anything, could be done to cure Maloy's ear prob-
lem. If Respondent had, it would have certainly learned
from Zane what Zane told Maloy-that Maloy needed an-
other ear operation because the prior one performed by
Zane in July had been unsuccessful.
In the fact of this strong prima facie showing, Respon-
dent defends that, in view of the Zane warning note of
September 15, it had no choice but to discharge Maloy.
Respondent urges that this discharge was not based on
Maloy's union activities. It points out (correctly) that other
well-known union adherents (union election observers)
have not been discharged. It says that it made numerous
efforts to placate Maloy in his complaints over penciled
performance reviews and the lost time of Selso Perez. It
urges that if it had wanted to get rid of Maloy it had ample
reason for doing so in March, when Maloy was insubordi-
nate to Murr (the "liar" incident), and in April, when Ma-
loy walked out of the meeting when permanent tree-trim-
ming crews were announced. It says it made several offers
to transfer Maloy, but Maloy refused. Finally, it points out
that the union activity had long since died down by the
time of Maloy's discharge, hence that such activity must be
devalued as a factor bearing on that discharge.
I reject Respondent's contentions.
Taking first the matter of Respondent's claimed lack of
options with respect to Maloy in the face of Dr. Zane's note
of September 15, it had a number of options, the simplest
of which was, of course, to transfer this valuable employee
back to lineman's work and put another employee on tree
menus were made by Respondent (e.g.. of Barrientos).
1I As Rendon credibly testified on cross-examination.
460
CENTRAL POWER AND LIGHT COMPANY
trimming;t 9 or Respondent could, as it had done for other
employees, have found Maloy a temporary assignment in-
doors or even placed him on leave (as it had done before)
until his ear problem had been finally resolved (bearing in
mind that a second operation might have been successful).
The question, thus, is not what Respondent could do but
rather what it wanted to do.
As to Respondent's contention that it sought to placate
Maloy in his objections with respect to penciled evalua-
tions and the Selso Perez leave matter, there is no indica-
tion that Respondent gave Maloy satisfaction with respect
to either of these complaints.
While it is true that other known union adherents have
not been discharged, this is irrelevant. It is well settled that
an employer's failure unlawfully to discharge some em-
ployees does not exculpate it from the charge that it has
unlawfully discharged others.2 0
As to Respondent's contention that if it had really want-
ed to get rid of Maloy it had numerous prior opportunities
to do so for insubordination-the record does not support
this argument.
As to the "liar" incident in March, the record shows that
Murr and Johnson, a purported witness to the event, alleg-
edly advised management (eventually Kelley) that Maloy
had called Murr a "goddamned liar" with respect to Murr's
statement to Kelley that he had advised Maloy of his
change of Maloy's rating on a prior evaluation form. When
Kelley spoke to Maloy, Maloy told him that Murr had
called Maloy a liar first, before Maloy responded that
Murr was the liar. Maloy denied that he had ever called
Murr a "goddamned liar." Maloy gave the same descrip-
tion of the incident under oath at the hearing. Neither
Murr nor Johnson testified.
Accordingly, I conclude that no insubordination oc-
curred here. The undisputed and credible testimony shows
only that Maloy called Murr a liar, and that he did so only
in defense against Murr's improper allegation that Maloy
was a liar.
With respect to the April I walkout involving Maloy, the
full facts are that Maloy asked for leave when he walked
out and was given leave. That is, he did not just-insubor-
dinately-walk out, as Respondent contends.
While Respondent is correct that, insofar as this record
shows, the union activity among Respondent's employees
had died out with the Union's defeat in the election in
February, the dying out of the activity is not the question.
The question is whether or not the reaction, if any, by
Respondent to the activity had died down at the time of
Maloy's discharge. The short answer to this question is that
the reaction was still vibrant, certainly in the heart of Kel-
ley-Respondent's principal actor in regard to the han-
dling of Maloy in this case-who had told Maloy as recent-
ly as August that Maloy would be denied a transfer
because of Maloy's union activities.
Yet other reasons cause me to reject Respondent's con-
[9 While such other employee might have to be taken out of seniority. I
note that Respondent had not followed seniority when the tree-trimming
crews were first established. Hence, there would have been precedent for
not following senionty by replacing Maloy with a more senior employee
without ear trouble.
2 E.g., N.L.R.B. v. W.C Nabors Co., 196 F.2d 272, 276 (5th Cir. 1952).
tentions and to agree with the General Counsel that Maloy
was discharged discriminatorily. Thus, at the hearing Dan-
iel attempted to introduce other reasons for Maloy's dis-
charge (besides Respondent's claimed liability dilemma
posed by Dr. Zane's note of September 15). These reasons
were that Maloy could not get along with supervisors and
that Maloy had the worst performance record of any em-
ployee as far as time lost.
As to the claim that Maloy could not get along with
supervision, Kelley, despite initial evasion on cross-exami-
nation on this question, ultimately stated that Murr was
the only supervisor for whom Maloy worked with whom
Maloy did not get along. But Murr, in five separate ratings
over the years of Maloy's employment with Respondent
(the last in the fall of 1976) rated Maloy "good" to "out-
standing" in all categories in each rating. In the last rat-
ing 21 rendered by Murr, Maloy was rated "outstanding" in
all 15 categories except "communication," wherein he was
classified as "good."
To the extent that Maloy and Murr had their differ-
ences, so did other employees have difficulties with Murr's
supervision, as the testimony of a number of witnesses
demonstrates without dispute.22
As to Daniel's claim that Respondent's records showed
that Maloy had the worst attendance record, Respondent's
counsel conceded at the hearing that the documents in
question cannot be read to support or contradict Daniel's
assertion. Kelley-in effect, contradicting Daniel on this
point-testified that the documents are not even issued un-
til the end of the year (whereas Maloy was discharged in
September).
This shifting of defenses at the hearing in order to build
a case to support a discharge-particularly where, as here,
the testimony of Respondent's witnesses is contradictory in
regard to such newly raised matters-may be considered in
determining the real motive for a discharge and is a cir-
cumstance suggesting an attempt to obfuscate the true mo-
tivation.23 I so consider it here.
I conclude on the basis of all the foregoing that Respon-
dent seized upon Dr. Zane's letter of September 15 as a
pretext to rid itself of one of its most active union adher-
ents and that Respondent terminated the employment of
Maloy because of his union activities. I accordingly con-
clude that by discharging Maloy for this reason and subse-
quently refusing to reinstate him Respondent has violated,
and is violating, Section 8(a)(3) and (I) of the Act.24
21 I reject the rating, allegedly signed by Bingham In 1977, which is in the
range of "needs improvement" to "good.- Bingham did not testify and,
according to the unrebutted testimony of Maloy, was angered that Maloy
had not been put in charge of Bingham's crew (as Bingham had suggested)
while Bingham was on vacation in July or August 1977. This. of course.
suggests that Bingham had a high regard for Maloy at that time. I so find
Further. as Kelley testified, ratings are given in October October 1977 was
after Maloy's discharge and after the charge herein was filed.
22 Rendon. Schultz, and Barber Schultz and Barber, as former employees
of Respondent-not shown to have been discharged or to maintain any
other bias--were disinterested witnesses
21 See W'insion Rose and Mary Louise Rose, a partnership. d 'h a Ideal
Donutr Shop, 148 NLRB 236, 246 ( 1964). and cases cited therein.
:4 In reaching this conclusion, I discredit the testimony of Daniel and
Kelley that the discharge had nothing to do with Maloy's union activities.
See Shatruck Denn Mlning Corp. s N.L.R.B. 362 F.2d 466, 470 (9th Cir.
(ontinued
461
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the virtual admission on the part of Kelley,
previously referred to, and against the entire background
of events heretofore described, I further conclude that Re-
spondent refused to transfer Maloy to Pearsall because of
Maloy's union activities and that Respondent thereby like-
wise violated Section 8(a)(l) and (3) of the Act."
2
This brings us to an additional request in the General
Counsel's brief that I find that Maloy's transfer to tree
trimming in April and his 5-day suspension in March were
violative of Section 8(a)() and (3) of the Act, although
neither matter was alleged in the complaint and no effort
was made to amend the complaint in either respect at the
hearing. The General Counsel argues that both matters
were fully litigated at the hearing and that both occurred
within the 6-month statute of limitations period of Section
10(b) of the Act.26
Respondent vigorously opposes this request, urging that
had it been charged with these offenses it would have
called witnesses with firsthand knowledge of both matters.
I reject the General Counsel's request, for I do not be-
lieve that it can fairly be concluded that either matter was
fully litigated at the hearing.
Thus, as to the 5-day suspension in March, neither Murr
nor Johnson was called as a witness.
27
As to the inauguration of permanent tree-trimming
crews on April I, we have only a few facts which show that
such crews were established and that the basis for assign-
ment thereto-according to the testimony of Daniel and
Maloy himself-was seniority. While Graves later told Ma-
loy that he had been placed on tree trimming because of
the trouble he was causing, this statement without more.
and without placing Respondent on notice to establish, if it
desired to, a complete record on the permanent tree-trim-
ming crew matter, is insufficient to provide a basis upon
which to conclude that Maloy's transfer to that crew was
an unfair labor practice. For Graves might simply have
taken the opportunity-provided by Maloy's question
about why he was put on tree trimming-to make a state-
1966). where the court, in speaking of the evaluation of an employer's
mo-
tive for discharge, stated:
Actual motive, a state of mind, being the question, it is seldom
that
direct evidence will be available that is not also self-serving. In such
cases the self-serving declaration is not conclusive; the trier of fact
may
infer motivation from the total circumstances proved. Otherwise
no
person accused of unlawful motive who took the stand and testified
to
a lawful motive could be brought to book. Nor is the trier of fact
here
the trial examiner-required to be any more naif than is a judge. If he
finds that the stated motive for discharge is false, he certainly can infer
that there is another motive. More than that he can infer that the mo-
tive is one the employer desires to conceal-an unlawful motive at
least where, as in this case, the surrounding facts tend to reinforce
that
inference. IFootnote omitted.]
25Cf. Chef Nathan Sez Eat Here, Inc., 181 NL.RB 159. enfd.
434 F.2d 126
(3d Cir. 1970).
26 Separate charges alleging these matters as unfair labor practices
were
previously filed and withdrawn by Maloy.
21 While I have made certain findings of fact adverse to Respondent with
respect to this incident, I have done so on the basis of the credible
testimony
of Maloy under oath as undisputed by Murr and Johnson.
That is, as to
these facts (which otherwise relate to Respondent's defense that
it had many
opportunities to fire Maloy, had it wanted to). I have found such
facts on
the basis of the record presented to me. Such is my function. To
go further
and promote these facts into an unfair labor practice finding
against Re-
spondent without notice is another matter
ment to harass Maloy for his union activities even if the
assignment had not been made for that reason (Graves
remark has been relied upon in my "animus" findings, su-
pra.) Indeed, with Maloy's own testimony (coupled with
that of Daniel) that Maloy's assignment to that crew was
made on the basis of seniority, the direct evidence pre-
sented in this record that the assignment was nondiscrinm-
natory is in equipoise with the direct evidence to the con-
trary-i.e., Graves' statement. While the circumstantial
evidence dealing with Respondent's other conduct toward
Maloy might shift the balance against Respondent (e.g.,
Kelley's reaction to Maloy's renewed avowal of union alle-
giance at the meeting of February 16, where Kelley asked
him what he would do if he was assigned to tree trimming),
I am unwilling to make that assessment where Respondent
was not put on notice of any need to defend against a
separate unfair labor practice arising from this matter and
given the opportunity to show by a preponderance of the
evidence that the crewing for tree trimming was established
in a nondiscriminatory manner, as the "seniority-basis"
testimony of Daniel and Maloy indeed suggests.
I note, in any event, that Respondent's crews were no
longer performing tree trimming at the time of the hearing;
hence my recommended reinstatement Order, when effec-
tuated, will place Maloy back in his lineman's job or a job
equivalent thereto. The recommended Order shall also di-
rect Respondent to cease and desist from discrimination in
regard to hire and tenure of employment or any term or
condition of employment of any of Respondent's employ-
ees. This latter aspect of the remedy will, inter alia, pre-
clude any unlawful assignment of Maloy to more onerous
and objectionable work should Respondent ever be of a
mind to make such an assignment in the future.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
The recommended Order will contain the conventional
provisions for cases involving unlawful discrimination in
violation of Section 8(a)(l) and (3) of the Act. This Order
will require Respondent to cease and desist from the unfair
labor practices found and to post a notice to that effect,
which will also state the affirmative action Respondent will
be required to take to remedy these violations.
Thus, Respondent will be required to offer Troy Maloy
immediate and full reinstatement to his former position as
a Class "A" lineman or, if such position no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or other rights or privileges. He will be make
whole for any loss of earnings he may have suffered by
reason of Respondent's discrimination against him by pay-
462
CENTRAL POWER AND LIGHT COMPANY
ment of a sum of money equal to that which he would have
earned from the date of his discharge to the date of his
offer of reinstatement less nit interim earnings, if any, to be
computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), with interest thereon as
required by Florida Steel Corporation, 231 NLRB 651
(1977) .2
It will be further recommended, in view of the unfair
labor practices in which Respondent has engaged (see
N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir.
1958)), that Respondent be ordered to cease and desist
from infringing in any other manner upon the rights guar-
anteed employees by Section 7 of the Act.
CONCLUSIONS OF LAW
I. 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. By refusing to transfer Maloy to Pearsall, Texas, and
by discharging and thereafter refusing to reinstate him, Re-
spondent has violated, and is violating, Section 8(a)(3) and
(I) of the Act.
4. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary or useful in complying with the terms of this Order.
(c) Post at its plant on Lipan Street in Corpus Chnsti,
Texas, copies of the attached notice marked "Appen-
dix." 3o Copies of this notice, on forms provided by the
Regional Director for Region 23, shall, after being duly
signed by Respondent, be posted by it 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. Rea-
sonable steps shall be taken by Respondent to insure that
such notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 23, in writ-
ing, within 20 days from the date of receipt of this Order,
what steps Respondent has taken to comply herewith.
2s See. generally, Isis Plumbing & Heating Co. 138 NLRB 716 (1962).
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.
30 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"
ORDER 29
The Respondent, Central Power and Light Company,
Corpus Christi, Texas, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, activities on behalf of,
or sympathies toward International Brotherhood of Elec-
trical Workers, AFL-CIO and CLC, or any other labor
organization, by refusing to transfer, discharging, or other-
wise discriminating in regard to hire or tenure of employ-
ment or in any other manner in regard to any term or
condition of employment of any of Respondent's employ-
ees in order to discourage union membership, activities, or
sympathies.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Troy Maloy immediate and full reinstatement
to his Class "A" lineman's position or, if such position 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 pay he may have suffered
as the result of his discharge in the manner set forth in the
remedy section herein.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the chance to give
evidence, it has been decided that we have violated the
National Labor Relations Act, and we have been ordered
to post this notice.
The National Labor Relations Act gives you, as em-
ployees, certain rights, including the rights:
To self-organization
To form, help, or join unions
To bargain collectively through a representative
of your own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all such activities.
WE WILL NOT refuse to transfer you, discharge you,
or take any reprisal against you because you join, sup-
port, or engage in activities on behalf of International
Brotherhood of Electrical Workers, AFL-CIO and
CLC, or any other labor organization.
463
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner unlawfully inter-
fere with any of your rights set forth above.
WE WILL offer to reinstate Troy Lee Maloy to his
former position as a Class "A" lineman or, if such
position no longer exists, to a substantially equivalent
position, because the Board has found that we dis-
charged him because of his union activities.
WE wILL make up all pay lost by Troy Lee Maloy as
the result of his discharge, plus interest.
CENTRAL POWER AND LIGHT COMPANY
464