DeKalb Telephone Cooperative

National Labor Relations Board - Board Decisions

Feb 10, 1966

156 N.L.R.B. 1381 (N.L.R.B. 1966)

DEKALB TELEPHONE COOPERATIVE 1381
2. By his lockout and discontinuance of use of hired drivers in his operations, and
termination of such drivers, thereby discouraging membership in a labor organiza-
tion, Respondent has engaged in and is engaging in unfair labor practices in violation
of Section 8(a) (3) of the Act.
3. The said Union has been since July 1, 1964, the exclusive bargaining represent-
ative of employees of Respondent in an appropriate unit consisting of all truck-
drivers at his Pittsburgh, Pennsylvania, terminal, excluding office clerical employees,
professional employees, guards, and supervisors as defined in the Act.
4. By unilateral lockout and discontinuance of use of hired drivers in his opera-
tions and resumption of such operations by subcontracting the same to brokers, and
by failing to meet and bargain with said Union thereon, Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(5)
of the Act.
5. By the above conduct, and by offering wage raises to employees to induce them
to abandon support of said Union, Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaranteed to them by Section 7 of the
Act, and has thereby engaged in and is engaging in unfair labor practices in violation
of Section 8(a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
DeKalb Telephone Cooperative and Communications Workers of
America, AFL-CIO. Case No. 26-CA-2121. February 10, 1966
DECISION AND ORDER
On October 28, 1965, Trial Examiner Frederick U. Reel issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease, and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Decision and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions acid brief, and the entire record
in this case, and hereby adopts the findings, conclusionsand recom-
mendations of the Trial Examiner, except as modified herein.
i we find it unnecessary to decide whether Respondent violated Section 8(a) (3) as well
as 8(a ) (1) inasmuch as the remedy for the violation of Section 8(a) (3) would be the
same as for the violation of Section 8(a) (1). Accordingly, we do not adopt the Trial
Examiner's comments as to an 8(a) (3) violation.
156 NLRB No. 125.
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[The Board adopted the Trial Examiner's Recommended Order,
with the following modification: Delete paragraph 1(a) and redesig-
nate the following paragraph.]
TRIAL EXAMINER'S DECISION
This proceeding ,' heard before Frederick U. Reel at Lebanon , Tennessee , on Sep-
tember 14, 1965 ,2 pursuant to a charge filed the preceding May 28, and a complaint
issued July 8, presents primarily the question whether Respondent 's discharge of
employee Billy Johnson on May 25 violated Section 8 (a)(1) and (3 ) of the Act.
Respondent contended that Johnson was discharged for cause and that in any event
he was a supervisor , who could lawfully be discharged for union or concerted
activity.
Upon the entire record in the case, including my observation of the demeanor of
the witnesses , and after due consideration of the briefs filed by each of the parties, I
make the following-
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED
The pleadings establish, and I find, that Respondent, herein called the Company, a
Tennessee corporation engaged at Alexandria, Tennessee, in the operation of a pub-
lic telephone system, derives annual gross revenues in excess of $100,000, annually
receives goods, supplies, commodities or services valued at over $50,000 directly from
points outside the State of Tennessee, and is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. The pleadings further establish, and I find that
the Charging Party, herein called the Union, is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The discharge of Billy Johnson
1. Reasons for the discharge
Billy Johnson was one of a group of employees who were dissatisfied with a new
wage schedule which the Company announced in late April to be effective May 1.
Johnson and several other employees spoke to various members of the Company's
board of directors about the matter, and also called a representative of the Union to
enlist aid in organizing the employees. On Friday, May 21, Johnson received union
authorization cards some of which he thereafter distributed to other employees on
Saturday, a nonworking day.
On Friday, May 21, James Barry, the manager and operating head of the Company,
spoke to Johnson, warning him that his work and attitude would have to improve.
The following Tuesday, May 25, Barry discharged Johnson, telling Johnson (accord-
ing to Barry's own testimony) that part of the reason was that Johnson had been
"agitating" among the employees about the pay scale. Barry on the witness stand
was asked the question, "But the main reason [for Johnson's discharge] was that he
was talking about wage increases?" and replied, "Yes, sir, that and his production."
Also, Vern Odum, president of the board of directors, with whom Barry discussed
his plan to discharge Johnson, testified that Barry "said [Johnson] had talked to other
employees trying to dissatisfy people, but no union activities were mentioned."
Finally, in Johnson's version of his discharge interview, which I credit, he attributed
to Barry the statement, "You have been out mouthing or agitating again," a reference
to Johnson's visits to other employees during the weekend.
In the light of the foregoing testimony, I see no need to go into the disputed issue
as to whether Johnson's work was or was not satisfactory. His "agitating" of fellow
employees was plainly a "concerted activity for mutual aid or protection" within the
protection of Section 7, and as a matter of fact was also an effort to form, join, or
assist the Union within the meaning of Section 7. The record leaves no room for doubt
that Johnson's "agitating" with the other employees about wages was "a material
contributing reason" or "a substantial reason" for his discharge, even assuming,
arguendo, that it was not "the only reason for the discriminatory action complained
'The caption of the case reflects the correct name of the Charging Party, pursuant to
amendment of the complaint made at the outset of the hearing.
2 AlI dates herein refer Ito the year 1965, unless otherwise indicated.
DEKALB TELEPHONE COOPERATIVE 1383
of." N.L R.B. v. Electric Steam Radiator Corporation, 321 F. 2d 733, 738 (C.A. 6);
see also N.L.R.B. v. Great Eastern Color Lithographic Corp., 309 F. 2d 352, 355
(C.A. 2), cert. denied 373 U.S. 950; Local 152, afflw International Brotherhood of
Teamsters, etc. v. N.L.R.B., 343 F. 2d 307, 309 (C.A.D.C.). Finally, as Johnson was
in fact engaged in union activity, the Company's ignorance of the fact that his pro-
tected concerted activity was also union activity furnishes it no defense, and his dis-
charge therefore violated Section 8 (a) (3) as well as Section 8 (a) (1), assuming that
he was an "employee" and not a "supervisor," an issue to which we now turn.
2. Johnson's "supervisory" status
At the time of his discharge Johnson was a "construction foreman" or "line fore-
man," working with a "line crew." The Company had two such line crews engaged
in installing telephone service for new subscribers. Prior to September 1964, the two
crews were under the direction of George Johnson (apparently no relation to Billy
Johnson), who bore the title "Construction Foreman." Each crew at that time con-
sisted of one or two linemen and a helper or trainee. In September 1964 George
Johnson's title was changed to "Construction Superintendent," and one lineman on
each crew was named "foreman." Billy Johnson and Ollie Kelley were the foremen,
Kelley with two men on his crew in addition to himself, and Johnson with one other
man and one vacancy, later filled.
The foreman is responsible for and drives the truck and makes out reports con-
cerning it. He also is responsible for procuring the materials and supplies to be
used on the job and accounts therefor. The jobs involve such construction work
as digging holes, installing poles, and stringing wires and cables. The details of
each job are worked out by the Company's engineer , who has surveyed and staked
the line, and are contained in detailed plans or specifications called work orders
which are given the foremen. The work order is a drawing which specifies the
number, size, and approximate location of the poles, the type and number of wires,
the type of pole top units, such as insulators, pins, and brackets, and so forth. Fre-
quently, however, the work order may contain manifest errors (e.g., the specification
of a particular type of anchor or a particular size or make of bracket when the
terrain or the size of the pole require a different type or size ), and the construction
foreman has authority to substitute the proper item . According to Kelley, certain
routine changes are made "every day," and he would expect a member of his crew
to make them automatically, while on other less routine matters Kelley would con-
sult "a spec book we go by. Anything you don't know about, you can turn over
there and R.E.A. has got it drawed for me to build by, and him to build by ...."
Kelley also testified, however, that before he was named foreman he would check
even routine changes with George Johnson.
Kelley and Billy Johnson did the same type of physical labor as the other men
on their crews (except that Kelley did no climbing, an idiosyncrasy peculiar to his
employment even before he became a "foreman"). Indeed, the Company trans-
ferred Jennings, a rank-and- file lineman , to Billy Johnson's crew for the purpose of
checking up on Johnson and reporting to Barry if Johnson was not doing his share
of the physical labor. Billy Johnson and Kelley were raised to $1.80 per hour when
they were made foremen, a wage increase of 30 cents for Johnson and 20 cents for
Kelley. George Johnson, whose wages were not changed with his change in title,
received $2.10 per hour at that time.
According to both Kelley and Barry, Kelley after he became foreman recom-
mended a pay raise for one of his crew, Jerrell Hall. On the strength of this recom-
mendation Hall, who was hired June 10, 1964, as a lineman trainee at $1.25 per
hour, was promoted on January 1, 1965, to lineman at $1.40 per hour. According
to Barry, Billy Johnson suggested a promotion for lineman-helper Grandstaff, who
was thereafter made lineman on March 1, 1965, with an hourly pay increase from
$1.35 to $1.40. Barry also checked with George Johnson before promoting
Grandstaff.
On the foregoing facts, I find that Billy Johnson was not a supervisor within the
meaning of Section 2(11) of the Act. See N.L.R.B. v. North Carolina Granite
Corporation, 201 F. 2d 469 (C.A. 4); Queen City Railroad Construction, Inc., 150
NLRB 1679, footnote 2. His authority was that of a leadman or straw boss, work-
ing with a small crew and not in any meaningful sense supervising or directing them.
To be sure, he received higher pay, and was responsible for the truck and for
accounting for supplies, but his directions to the men were minimal and routine.
It may be noted that Barry in reproving Johnson for the latter's "mouthing and
agitating" never suggested that Johnson was a representative of management, and
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is clear that the other employees regarded his interest as allied with theirs in pro-
testing the new pay scale. On the other hand, Kelley abstained from the concerted
activity, but the record contains no evidence as to whether this resulted from any
feeling on his part that he enjoyed supervisory status.
The sole factor which might support a finding that Billy Johnson is a supervisor
is the evidence concerning the promotions of Hall and Grandstaff. Under the statu-
tory definition, the authority to promote "or effectively to recommend such action"
is one of the elements of a supervisor, and the possession of any one of the elements
is sufficient to clothe an employee with supervisory status. Ohio Power Company V.
N.L.R.B., 176 F. 2d 385, 387 (C.A. 6), cert. denied 338 U.S. 899; Eastern Grey-
hound Lines v. N.L.R B., 337 F. 2d 84 (C.A. 6). The promotions in this case were
from helper or trainee to journeyman status after the employee had spent 6 months
or more in the inferior classification. Particularly in Johnson's case, where the
Grandstaff promotion came about after a mere casual mention of the matter to Billy
Johnson and a further check by Barry with George Johnson, it would seem that
Billy Johnson's "recommendation" was given no more weight than would be given
that of any senior experienced employee who commented favorably to his "boss"
on the work of a promising junior. Supervisory status cannot hang on so slender
a reed. See Northern Virginia Steel Corp. v. N.L.R.B., 300 F. 2d 168, 172 (C.A. 4),
where the court in commenting on the alleged supervisor's "asserted power to sug-
gest hirings, firings and transfers-which the record shows was actually exercised
only one time" concluded that "trusted non-supervisory employees often are looked
to for such suggestions." See also Appalachian Electric Cooperative, 93 NLRB
1348, 1349; New Jersey Natural Gas Company, 101 NLRB 251, 254; Potomac
Electric Power Company, 111 NLRB 553, 557.
B. Unlawful threats and interrogation
On Friday, May 21, Barry warned Johnson that he would be discharged if "his
attitude didn't improve and his production didn't get back to normal." Barry on
that occasion made it clear to Johnson that by "attitude," Barry referred to John-
son's "agitating about the pay raise ... talking to the employees" about pay scales
elsewhere. A threat to discharge for engaging in such concerted activity, if, of
course, violative of Section 8(a) (1).
On Tuesday morning, May 25, Plant Manager Edward Hayes stopped Barry as
the latter was returning to his office after a morning "coffee break" and asked to
speak to Barry for a minute 3 Hayes then told Barry, "One of the girls has told me
that she had a visitor over the weekend." Barry inquired, "Who is that?" and Hayes
replied "Billy Johnson." Barry. had "curiosity as to what Billy Johnson might be
wanting," but he went on to a meeting with an R.E.A. representative and a visiting
engineer from North Carolina. He stayed in the meeting "just a few minutes, and
this thing kept beating in [his], head, wondering what Billy wanted to visit them
employees for."
Barry then left the meeting, and summoned the girl Hayes had mentioned to the
supervisor's office, where he told her he had "heard she had a visitor over the week-
end." The girl replied that Billy Johnson had visited her. Barry asked, "What the
heck was he wanting?" and the employee replied that Johnson was trying to get her
to sign a union card. Barry then summoned to the office, separately, each of the
other girls employed in the office, and asked each of them if Billy Johnson had been
at her house. Barry testified that he engaged in this activity because he "was just
interested, just wondered."
Barry testified that he did not ask any of the girls whether they had signed cards
or utter any threat or "make any statement about union activity, whether they could
or couldn't, or offer any promise or reward." Blackburn, one of the employees, but
not the first, to be interviewed by Barry that day, testified that Barry after learning
from her that she had had a "visitor over the weekend" asked "what [she] thought
about the Union, what [she] had to say about it." Blackburn testified she told him
she knew nothing about it and did not want to know anything about it. I credit
her testimony.
On these facts, I find that Barry's systematic interrogation of the employees after
he learned that the "visitor" was on union business, including but not limited to his
specific inquiry of Blackburn, constituted an attempt to pry into the union activities
and sympathies of the employees, and particularly when viewed in the context of
the discharge of Johnson must be held a violation of Section 8(a)(1) of the Act.
3 The facts set forth in this and the following paragraph are drawn from the testi-
mony of Barry when called as a witness by the Company.
DEKALB TELEPHONE COOPERATIVE 1385
CONCLUSIONS OF LAW
1. By discharging Billy Johnson for having engaged with other employees in con-
certed activity for mutual aid and protection, and for having engaged in union
activity, the Company engaged in an unfair labor practice affecting commerce within
the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
2. By threatening to discharge an employee for engaging with other employees
in concerted activity for mutual aid and protection, and by systematically interro-
gating employees in an effort to ascertain the extent of their union activity and
sympathies, the Company engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
THE REMEDY
I shall recommend that the Company be ordered to cease and desist from the
unfair labor practices , that it offer to reinstate Johnson with backpay computed in
accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716, and that it post an appropriate
notice. The nature of the unfair labor practices is such that a broad cease -and-desist
order appears warranted . N.L.R.B. v. Entwistle Mfg. Co., 120 F . 2d 532, 536
(C.A. 4); N.L.R.B. v. Bailey Company , 180 F . 2d 278, 280 (C.A. 6).
RECOMMENDED ORDER
Accordingly, on the basis of the foregoing findings and conclusions and on the
entire record, I recommend, pursuant to Section 10(c) of the Act, that Respondent,
DeKalb Telephone Cooperative, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating against any employee for having joined or engaged in activity
on behalf of Communications Workers of America, AFL-CIO.
(b) Interrogating or threatening employees as to their union membership or
activities, discriminating against them, or threatening to do so, for engaging in con-
certed activity for mutual aid or protection, or in any other manner interfering with,
restraining, or coercing employees in the exercise of their rights under Section 7
of the Act.
2. Take the following affirmative action I find necessary to effectuate the policies
of the Act:
(a) Offer to reinstate Billy Johnson to his former or substantially equivalent posi-
tion without prejudice to his seniority or other rights and privileges, and make him
whole in the manner described in the portion of the Trial Examiner's Decision
entitled "The Remedy" for any loss of earnings suffered by reason of the discrimina-
tion against him.
(b) Notify Billy Johnson if he is serving in the Armed Forces of the United States
of his right to full reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act, as amended, after
discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board of its agents for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms hereof.
(d) Post at its premises at Alexandria, Tennessee, copies of the attached notice
marked "Appendix." 4 Copies of such notice, to be furnished by the Regional
Director for Region 26, shall after being duly signed by an authorized representative
of Respondent, be posted immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
* If this Recommended Order be adopted by the Board, the words "a Division and
Order" shall be substituted for "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board's Order be enforced by a decree of a United
States Court of Appeals the words "a Decree of a United States Court of Appeals, En-
forcing an Order" shall be inserted immediately preceding "a Decision and Order "
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for Region 26, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent has taken to com-
ply herewith.5
5In the event that this Order is adopted by the Board, this provision shall be modified
to read: "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL offer Billy Johnson his former job and pay him for wages he lost
since May 25, 1965.
All our employees have the right to join or assist Communication Workers
of America, AFL-CIO, or any other union, to engage in other concerted activi-
ties for mutual aid or protection , or to refrain from any or all such union or
concerted activities.
WE WILL NOT question our employees as to their union or concerted activity,
or threaten to discharge or discriminate against employees, or interfere with
them in any way, because of their union or concerted activity.
DEKALB TELEPHONE COOPERATIVE,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full renistatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board' s Regional Office, 746 Federal
Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No.
534-3161.
Local No. 85, United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United States
and Canada, AFL-CIO and Dobson Heavy Haul, Inc. and
Riggers and Machinery Erectors , Machinery Movers Local
Union No. 575, International Association of Bridge , Structural
and Ornamental Iron Workers of America , AFL-CIO. Case
No. 7-CD-122. Feb'ruary 10, 1966
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding tinder Section 10(k) of the National Labor
Relations Act, as amended, following charges filed by Dobson Heavy
Haul, Inc., herein called Dobson or the Charging Party, alleging that
Local No. 85, United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States and
Canada, AFL-CIO, herein called the Respondent, had violated Sec-
156 NLRB No. 117.