Electrical Workers Ibew Local 596

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1348 (N.L.R.B. 1985)

1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers,
Local Union No. 596, AFL-CIO and Office and
Professional Employees International Union,
Local No. 67, AFL-CIO-CLC and Lylloth G.
Woodall. Cases 6-CA-15646 and 6-CA-16007
29 March 1985
denied that it committed any unfair labor practices. Fol-
lowing close of the hearing, briefs were filed on behalf
of the General Counsel and Respondent
On the entire record in this proceeding,' including my
opportunity directly to observe the witnesses while testi-
fying, as well as their demeanor, and on consideration of
the posthearing briefs, I make the following
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 18 August 1983 Administrative Law Judge
Joel A. Harmatz issued the attached decision. The
Charging Party Lylloth G . Woodall filed excep-
tions and a supporting brief, and the Respondent
filed an answering brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,I and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, International
Brotherhood of Electrical Workers, Local Union
No. 596, AFL-CIO, Clarksburg, West Virginia, its
officers, agents, and representatives , shall take the
action set forth in the Order.
' The Charging Party has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law juidge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
No exceptions were taken to the judge's finding that the Respondent
violated Sec 8(a)(1)
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge This
proceeding was heard by me in Clarksburg, West Virgin-
ia, on June 1, 1983, on an original unfair labor practice
charge filed on July 19, 1982, and separate complaints
issued on September 1, 1982, and January 28, 1983, re-
spectively, alleging that Respondent independently vio-
lated Section 8(a)(1) of the Act by promising benefits to
induce withdrawal of union membership and threatened
to discredit and to discharge an employee because she
had engaged in union actvity and had filed unfair labor
practice charges The complaints further alleged that Re-
spondent violated Section 8(a)(3) and (1) of the Act by
reducing or eliminating benefits and then discharging
employee Lylloth G. Woodall because she engaged in
union activity and filed charges under the National
Labor Relations Act. In its duly filed answer Respondent
FINDINGS OF FACT
I JURISDICTION
The Respondent, International Brotherhood of Electri-
cal Workers, Local Union No. 596, AFL-CIO, is an un-
incorporated association with a place of business in
Clarksburg, West Virginia, where it is engaged as a labor
organization in the business of representing employees
and bargaining with employers with respect to wages,
hours, and other terms and conditions of employment.
At all times material, Local 596 has been chartered by,
and an integral part of, a multistate labor organization,
International Brotherhood of Electrical Workers, AFL-
CIO, which maintains its national headquarters in Wash-
ington, D C In the course of its operations, Respondent,
during the 12-month period ending August 31, 1982, a
representative period, collected and received dues and
initiation fees in excess of $100,000, and remitted from its
Clarksburg, West Virginia facility to Washington, D C.
headquarters of the International Brotherhood of Electri-
cal Workers, AFL-CIO dues and initiation fees in excess
of $25,000.
On the foregoing, it is concluded that Respondent is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act 2
iI. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admitted at the
hearing, and it is found that Office and Professional Em-
ployees International Union, Local No 67, AFL-CIO-
CLC (Office Workers Local 67) is a labor organization
within the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
Primarily at stake in this proceeding, at least from the
standpoint of remedy , is the question of whether Re-
spondent terminated Lylloth G Woodall in violation of
Section 8 (a)(1), (3), and (4) of the Act Beyond that, a
legal issue is presented as to whether an employee who
has sought to assert rights to union representation and
negotiated employment terms is insulated from reprisals
for such activity even though the bargaining unit is limit-
ed to one person . See, e . g, Luckenbach Steamship Co., 2
NLRB 181, 193 ( 1936). Among the factual issues and
questions of credibility presented are those customarily
' The General Counsel alleges that the transcript is in error at p 143,
L 20, where the word "curious" is mistakenly entered, when in fact the
witness assertedly used the word "furious" The request to amend is
denied as the testimony reported in the official stenographic transcript
conforms with my recollection and is logically consistent with the con-
text in which the questioned term appears
2 See, e g, Laundry & Drycleaning Union Local 26, 129 NLRB 1446 fn
2 (1961), Carpenters Local 35, 264 NLRB 795 (1982)
274 NLRB No. 196
ELECTRICAL WORKERS IBEW LOCAL 596
arising where motivation is in issue and where an em-
ployer, as here, is charged with a variety of independent
8(a)(1) allegations The issues of credibility essentially
turn on conflicting testimony afforded by Charging
Party Woodall, on the one hand, and Maurice Wine, Re-
spondent's business manager and the sole representative
of Respondent charged with unlawful conduct herein, on
the other
The facts show that, in May 1975, Woodall was hired
by Respondent IBEW Local 596 During times material
she served as "bookkeeper-secretary." Shortly after her
hire, Respondent voluntarily recognized Office Workers
Local 67 as her bargaining representative Pursuant
thereto, Woodall was covered by successive agreements
defining her wages and conditions of work between 1975
and May 31, 1982 At all times, Woodall was the sole
employee of Respondent represented by Officer Workers
Local 67
Wine was elected to the full-time, salaried position of
business manager and financial secretary in July 1978 In
this capacity, he was responsible for Respondent's day-
to-day operations and served as Woodall's supervisor
The present controversy finds its origin in 1982 con-
tract renewal negotiations s Thus, during the interim be-
tween May and June of that year the parties engaged in
four negotiating sessions. On June 17, deadlock was
reached, with the parties divided over wage-benefit in-
crease, and reinstatement rights after leave of absence for
sick leave 4
There is no room for dispute as to the less than amica-
ble conditions under which Respondent broke off the ne-
gotiations. However, the complaints, relying essentially
on the credibility of Woodall, allege that she was subject
to repeated incidents of coercion because of her ties to
Office Workers Local 67 and her involvement in unfair
labor practice proceedings The first of these confronta-
tions was placed on June 18, the day following the final
negotiating session. Woodall claims that Wine ap-
proached her, stating that she "should drop out of the
OPEIU and join the IBEW, and he would give [her] the
title office manager " Wine denied ever making such
overtures. I credit him As Wine related, it was constitu-
tionally impossible, in her capacity as a clerical employ-
ee, for Woodall to obtain membership in the IBEW Fur-
thermore, any reference to the term "office manager"
would have been meaningless, inasmuch as Woodall was
the only clerical employee. Accordingly, it is considered
unlikely that Wine would use either as an instrument of
persuasion, and considering my basic mistrust of Woo-
dall, I credit him and shall dismiss the independent
8(a)(1) allegation based on this incident
The chronology continues with Office Workers Local
67's forwarding a mail-o-gram on July 7, requesting a
further meeting to conclude the negotiations. August
Pinti, chairman of Respondent's executive board, by
Unless otherwise indicated all dates refer to 1982
The Union was demanding a 50-cent increase to cover the increased
cost of health insurance and wages, whereas Respondent's best offer was
35 cents to finance these dual benefits On the question of reinstatement
rights, they had demanded preservation thereof for leaves of absence of
l2-month duration, while Respondent refused to agree to extension
beyond 3 months
1349
letter of July 8, answered, stating in material part as fol-
lows
After advice from the Fourth District of the
IBEW, and Attorney Stanley M. Hostler, the ma-
jority of the Executive Board of IBEW, Local
Union 596, acting as the Negotiating Committee,
have contemplated [sic] the following
You made a final offer and nothing less.
You walked out on negotiations, with our side
asking when you wanted to meet again
The Executive Board at this time have [sic] not
decided when and if they want to meet again
Mr Hostler assured us that the National -Labor
Relations Board has no jurisdiction over this situa-
tion.5
Subsequently, on July 9, 1982, a general monthly
membership meeting was held by Respondent At that
time, Woodall and representatives of Office Workers
Local 67 distributed a handbill to members of Respond-
ent in attendance 6 That document pleaded that Woodall
had last received a wage increase in June 1980, and only
12 cents hourly at that It went on to contrast her treat-
ment with that of Wine who received substantial in-
creases in 1980, 1981, and 1982 The leaflet followed up
with an appeal to Respondent's membership that' as
"trade unionists" they approve the small increase sought
on behalf of Woodall
The General Counsel contends that, in reaction to the
handbilling, Respondent violated Section 8(a)(1) by
Wine's threats to discredit and discharge Woodall, and
further that Respondent violated Section 8(a)(3) and (1)
by reducing Woodall's employment benefits In this
regard, Wine admitted his anger at the content of the
handbill, himself observing that the salary comparison
was unfair and inappropriate in the light of the differ-
ences in the duties and responsibility inherent in the posi-
tion he held, and that performed by the secretary-book-
keeper. Wine also acknowledges that he importuned
Woodall in this respect on Monday, July 12 Thus, as
Woodall arrived for work that morning, Wine ap-
proached her, called her to the office, criticized her con-
cerning the handbill, and gave her a handwritten docu-
ment which stated as follows-
Ms. Jerry Woodall,
Local Union I.B.E.W. upon advice of legal coun-
sel is presenting you this letter, with the following
information
1 Local Union 596 no longer recognizes
O.P.E I U. Local No 67
2. Local Union 596 at this time will continue to
pay your present wages.
3. Local 596 at this time will also pay your
Health and Welfare, two weeks vacation, and seven
day sick leave.
See G C Exh 6
e The handbill is in evidence as G C Exh 5
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 Local 596 at this time will also grant you three
months leave of absence
5 If the above is not satisfactory to you, you
may quit
/s/ Maurice R Wine
Bus Mgr LU 596
Beyond the foregoing, the events are subject to a con-
flict in testimony According to Woodall, after the above
document was received, she inquired "what about my in-
crease, what about my other benefits2" To this, Wine al-
legedly responded, "That's all you get, you take it or
you can leave; you can quit." Next, Wine alluded to the
fact that he had contemplated discharging Woodall, men-
tioning that another business agent had recommended
such a course, but going on to state that he had not done
so because his wife talked him out of it He then asser-
tedly referred to his having contacted Attorney Hostler
and mentioned a suggestion by the latter that Wine
should decrease Woodall's wages to $5 an hour, where-
upon she would quit Woodall claims that Wine stated
that he would "do anything he could against me," stating
to Woodall, "I will ruin you, I will discredit you in any
way I can " Wine, according to Woodall, also informed
her that she had no recourse, stating specifically that she
could not go to the National Labor Relations Board or
the EEOC, while threatening that if her Union were to
take the matter further, he would fire her Woodall also
relates that in the course of this confrontation she repeat-
ed. "Maurice, you mean, you're not going to give me no
increase2" and Wine responded, "No, you are a woman;
you do not deserve an increase and you're not going to
get one."
Wine denied that he made any of the threats attributed
to him by Woodall. As for the latter, it was my impres-
sion that her testimony throughout was heavily exagger-
ated and reflected a proclivity to elaborate on events
beyond what actually occurred in order that her interest
in this proceeding might be furthered. Her attempts to
implicate Wine in blatant misconduct often lacked plausi-
bility and from time to time lacked a ring of truth My
mistrust of Woodall ran sufficiently deep to warrant re-
jection of her testimony except in noncontroversial areas
or unless supported by overriding probability Accord-
ingly I shall dismiss the allegation that Respondent inde-
pendently violated Section 8(a)(1) by threatening to dis-
credit or discharge Respondent's employees because
Woodall "engaged in protected concerted activities and
activities on behalf of Local 67."
Also arising from this confrontation are the 8(a)(3) and
(1) allegations, pertaining to the reduction of Woodall's
benefits The handwritten memo prepared by Wine and
given Woodall on July 12, on its face, clearly purported
to list the only benefits that Woodall would receive were
she to elect not to quit As Woodall indicated, the listed
benefits did not include holiday pay, bereavement pay,
and relief periods, all of which were part of the existing
benefit structure as evidenced by the recently expired
collective-bargaining agreement. It is also clear that
Wine adopted this stance in reaction to the handbilhng of
Friday, July 9 Nevertheless, discrimination proscribed
by Section 8(a)(3) requires evidence that the employee
sustained an actual detriment to employment terms or
tenure Woodall did not testify and it does not appear
the Respondent dishonored a single benefit called for by
the contract. On the contrary, it is the sense of the credi-
ble testimony of Wine that, in the interim between July
12 and December 10, she continued to enjoy pay and
benefits as if the expired contract had been extended and
honored. Hence, the threat to do so appearing on the
face of Wine's memo was never implemented By virtue
of Section 8(a)(3) of the Act, it is an unfair labor parac-
tice "for an employer . . by discrimination in regard to
hire or tenure of employment or any term or condition
of employment to encourage or discourage membership
in any labor organization " Here, a vital element of dis-
crimination is lacking, and the memo of July 12 amount-
ed to no more than a putative threat
Nonetheless, Wine's written invitation, that Woodall
quit on representations that otherwise her benefit struc-
ture would be reduced, clearly constituted a form of co-
ercion which quite plainly would impede the exercise of
Section 7 rights. However, in this respect, Respondent
raises the legal issue as to whether the handbilling of Re-
spondent's membership could be regarded as activity
within the protective ambit of Section 7. After all Woo-
dall was the only employee in the unit, there were no
other employees, the appeal in the handbill was con-
cerned solely with the interests of Woodall, as were the
negotiations that formed the backdrop for this attempt at
persuasion. Accordingly, Respondent urges that Woo-
dall, as a member of a collective-bargaining unit which
was limited to herself, was fair game for intimidation in
conjunction with her union activity
The predicate for Respondent's position in this regard
is Luckenbach Steamship Co, 2 NLRB 181, 193 (1936),
where the following policy was articulated with respect
to one-person units:
The National Labor Relations Act creates the
duty of employers to bargain collectively. But the
principle of collective bargaining presupposes that
there is more than one eligible person who desires
to bargain. The Act therefore does not empower
the Board to certify where only one employee is in-
volved
However, as observed by the General Counsel herein,
the fact that the Board will not invoke its remedial arse-
nal to enforce bargaining in such a unit does not mean
that such an employee, having sought union representa-
tion, or obtained it, is viewed by the Board as accepting,
at his or her peril, the risk of employer intimidation.
Luckenbach Steamship is itself sufficiently clear on this
point. Thus, the statutory rights of such individuals were
plainly preserved by the following comment (id. at 193).
This . does not mean that a single employee may
not designate a representative to act for him; he had
such a right without the Act, and the Act in no
way limits that right By the same token, this . .
ELECTRICAL WORKERS IBEW LOCAL 596
in no way limits the protection which the Act oth-
erwise gives such an employee.7
This caveat plainly relates to union, as distinguished
from other forms of activity, protected by Section 7 of
the Act Therefore, any absence of "concertedness" in
Woodall's conduct that might be inferred from her status
as the sole employee in the bargaining unit does not
remove her union activity from the protection of the
Act For where union activity is involved, the protection
afforded by Section 7 is absolute and not contingent on a
showing that the victim of coercion had made or intend-
ed to make common cause with other employees. The
import of this distinction is apparent from the plain
wording of Section 7, which provides in material part, as
follows.
Employees shall have the right to self-organiza-
tion, to form, join or assist labor organizations, to
bargain collectively through representatives of their
own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have
the right to refrain from any or all such activities
Consistent with this interpretation, the Board, with court
approval, has deemed a discharge unlawful, although the
only conduct within the ambit of Section 7 related to an
employee's statement to a management representative as
to her concern about the absence of a union in an unor-
ganized plant. See Ethan Allen v. NLRB, 513 F.2d 706
(1st Cir. 1975). Similarly, the Ninth Circuit in Signal Oil
& Gas Co. v. NLRB, 390 F 2d 338, 343 (1968), stated-
"[I]t can hardly be doubted that discharge of an em-
ployee because he makes a pro-union statement would
tend within the meaning of the Act to `discourage mem-
bership in [a] labor organization . . . . ' "Employees
promoting a union are by that action engaged in protect-
ed concerted activities, and individual acts in furtherance
of that objective do not lose their protection merely be-
cause others are not consulted."$ The inherent foreseea-
ble effects of union-related coercion warrant extension of
such views to the present circumstances. For animus di-
rected toward a single employee unit would serve clear
notice to other employees or any replacement that to
form, join, or assist a labor organization would lead to a
similar fate 9 Also worth mentioning in this regard is the
anomaly in the remedial scheme which would inure if
single employee units were deemed beyond the scope of
Section 7. For, unlike Section 8(a)(1), as heretofore indi-
cated, Section 8(a)(3) of the Act makes no reference to
Section 7 or its use of the qualifying term "concerted,"
See also Louis Rosenberg , Inc, 122 NLRB 1450, 1453 (1959), Foreign
Car Center, 129 NLRB 319, 320 (1960)
8 Ohio Valley Graphic Arts, 234 NLRB 493 ( 1978) See also London
Chop House, 264 NLRB 638 (1982)
0 It is on this basis that I find that such cases as Alleluia Cushion Co,
221 NLRB 999 (1975), and Krispy Kreme Doughnut Corp v NLRB, 635
F 2d 304 (4th Cir 1980), are beside the point Those cases did not entail
recriminations against employees because of efforts to form , ,loin, or assist
a labor organization or to bagain collectively through representatives of
their own choosing
1351
but protects, against discrimination, those engaged in
union activity, whether or not they act alone All that is
required is that the adverse action be motivated by a
desire to discourage union membership. See Ethan Allen
v NLRB, supra. Thus, the view that Section 7 extends to
union activity in single employee bargaining units enables
harmonious interplay within a comprehensive remedial
scheme whereby Section 8(a)(3) and (1) join together in
assuring that the employee so involved is insulated
against threats and other conventional forms of interfer-
ence, just as has always been the case where the offense
entails union-related discrimination.
Accordingly, it is found that the July 9 handbillmg
was a step in the effort by Office Workers Local 67 to
secure a contract settlement with Respondent and, as
such, Woodall's involvement therein was a form of as-
sistance to a labor organization protected by Section 7 of
the Act.10 The threatened reduction of her benefits on
July 12, because of her involvement in that incident, had
a tendency to impede her exercise of such rights and
therefore violated Section 8(a)(1) of the Act
The next allegation in the sequence of events under
challenge in this proceeding relates to the fact that, on
July 19, Office Workers Local 67 filed the first unfair
labor practice charge in this proceeding. It is alleged that
thereafter, on July 29, Respondent violated Section
8(a)(1) by threatening discharge because of Woodall's in-
volvement in processing that charge According to Woo-
dall, on July 29, she had a conversation with an IBEW
member, reporting to the latter that Wine was not speak-
ing to her at the time because of the labor charges that
were pending against him . Later that day, according to
Woodall, Wine appeared at his office, and stated to
Woodall, " I am tired of your talking to the membership
or any members about the Labor Board charges," while
going on to state, "if I hear you mentioning that or my
name again , I will fire you . . . if you don't stop the
Labor Board charges now, I am going to fire you
anyway." Woodall further testified that she believed that
Wine, on that occasion, also declared, "You are on your
way out "11 Wine denied any such conversation. He tes-
tified logically that inasmuch as his Union was then
under interdict of unfair labor practice charges, his prac-
tice was to avoid any conversation concerning such mat-
ters with Woodall He expressly denied that he ever-told
her that she was on her way out or would be fired if she
informed members of the pending charges or if she failed
to withdraw the charges He further denied making the
statement that Local 596 would never recognize Office
Workers as long as he was business agent Once more
the testimony of Woodall imputed irrational references
to Wine, which struck me as contrived The denials by
Wine were the more believable. Accordingly, I shall dis-
miss the allegation that Respondent violated Section
10 I would be inclined, if necessary, to agree with Respondent, that the
nandbill's appeal to the IBEW membership did not involve the type of
concerted action contemplated by Sec 7, inasmuch as the support sought
of the latter was in their capacity as employers
11 Woodall testified to another encounter the next day , wherein she
inquired of Wine as to whether she was going to get a contract , where-
upon Wine allegedly responded, "No, that she would not have another
contract as long as she was there, and that she would not be there long "
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(1) by, on July 29, threatening to discharge Woodall
for filling and pursuing a charge before the National
Labor Relations Board
The final allegation relates to the December 10 termi-
nation of Woodall Prior thereto, on August 31, 1982, an
amended charge was filed in Case 6-CA-15646 On Sep-
tember 1, the first complaint in this proceeding was
issued
On September 22, Wine credibly testified that he dis-
covered, while Woodall was on vacation, that she had
drawn vacation paychecks in her own behalf, as was the
practice, but that she prepared them in the gross amount
without deducting standard payroll taxes This error was
the triggering event leading to Woodall's termination
However, after September 22, it was also discovered
that, in 1981, Woodall failed to include her vacation pay
on her W-2 and thus understated her taxable income for
that year More specifically, Respondent' s account as to
the discovery of the discrepancies opens with Wine's no-
ticing Woodall's entry on the checkstub, which indicated
that Woodall had drawn two checks at gross salary. He
then verified from the "ledger book" that the two vaca-
tion checks were drawn without reduction for payroll
taxes At this juncture, according to Wine, he contacted
the International headquarters and was advised to hire an
attorney and a CPA to verify whether Respondent owed
any money and to correct any deficiencies Wine then
contacted Attorney Hostler, who eventually visited
Clarksburg, where both consulted with Robert L Jones,
a self-employed CPA Jones was asked to perform an in-
vestigation, he examined the records at union headquar-
ters the next day and, on November 4, he issued a report
to the executive board, which in material part stated as
follows-
The records examined revealed that vacation pay
taken by Ms Lylloth G. Woodall for the weeks of
October 9, 1981, June 25, 1982 and September 24-
30, 1982, were not included in her W-2 in 1981, nor
were any taxes withheld or paid on these amounts
in 1981 or 1982.
I recommend that an amended return be filed and
the taxes be paid at this time Failure to correct the
return now will only increase the penalties and in-
terests assessed at a later date, should the records be
audited by the State or Federal government 12
A further report by Jones on November 17 described the
penalties that had accrued on these amounts.13
On December 10, Woodall was informed in writing
that she was to be "permanently laid off' effective that
day. At her request, Wine showed her a statement he
planned to present to the membership meeting that
evening, which contained the following explication of
the reason for her termination-
12 See R Exh 6 The report went to indicate that, in 1981, Respond-
ent, by virtue of Woodall's handling of her vacation check, owed $43 67
in social security and $4 86 in workmen's compensation taxes and that,
for 1982, Respondent owed $13202 in social security taxes, $1477 in em-
ployment security taxes, and $11 35 in workmen's compensation taxes
13 See R Exh 7
To The Members of Local 596 IBEW'
I regret that I must inform you that I have per-
manently laid off, with the approval of the Execu-
tive Board, the office secretary today
Jerry [Woodall] was laid off because she had pre-
pared incorrect reports that were submitted to the
IRS and the Department of Labor Jerry failed to
deduct Income Taxes, Social Security and other re-
quired deductions from her vacation pay in 1981
and 1982 She also failed to include her vacation
pay on her W-2 Form for 1981
As a result of her actions Local 596 hired CPA
Robert Jones, on the advice of our International
Office, and he was required to file some fifteen (15)
amended returns Local 596 will have to pay inter-
est and penalties to the IRS because of the incorrect
reports in addition to the fees for Jones
In 1980 I told Jerry that her vacation pay was
wages-the same as ours and mine-and that taxes
had to be deducted and paid accordingly 14
Woodall conceded that, in 1981 and 1982, she pre-
pared her own vacation paychecks at the rate of her
gross salary, thus failing to deduct standard payroll taxes
pertaining to social security, employment security, work-
men's compensation, and personal income In addition, in
1981, she did not include vacation pay on her reported
earnings on her W-2 form Whether intended or not,
these actions served her personal interests by understat-
ing her tax liability in 1981 and by increasing her take-
home pay in both 1981 and 1982. Upon detection, Re-
spondent was subjected to inconvenience and expense of
hiring a CPA, and was implicated in the filing of false
reports with taxing and regulatory authorities, 15 conduct
which required correction through the filing of amended
documents.
Also admitted by Woodall was the fact that Wine pre-
viously, in May 1980, corrected her when she prepared
her vacation check in the gross amount At that time
Wine instructed her to redraft the check, this time de-
ducting standard payroll taxes.16
Although not in a position to contest the above facts,
Woodall sought to explain away her misconduct by a
litany of unacceptable excuses. First, in an apparent at-
tempt to arouse sympathy, she states that when she first
assumed responsibility for preparing payroll items and
tax forms in 1978, she received no training As indicated,
she admitted, however, that, in 1980, she was corrected
by Wine and told to deduct the payroll taxes. Woodall
attempted to sidestep this development by asserting that,
later in 1980, she contacted the Internal Revenue Service
14 See R Exh I I did not believe Woodall's testimony that Wine re-
sisted her requests to see this document
15 One such report was the LM-3, a report required under regulations
administered by the U S Department of Labor The LM-3 includes a
breakdown of wages and payroll taxes submitted Because of Woodall's
discrepant handling of her vacation pay, Respondent was impelled to file
an amended LM-3
16 Although Woodall testified that unfair labor practice charges were
pending at the time of this instruction , I reject her speculation that this
attempt by Wine to obtain compliance with Respondent 's legal obliga-
tions was inspired by any such proceeding
ELECTRICAL WORKERS IBEW LOCAL 596
in connection with another matter, and was informed on
the telephone by an unidentified IRS agent that, if she
normally received a refund on her Federal income tax, it
was not necessary for her to deduct any taxes from her
vacation paycheck She claims to have been told that she
was merely required to report vacation pay as income in
her W-2 form at the end of the year, an obligation
which prompted another excuse, for, as indicated, Woo-
dall neglected to include vacation pay in the income she
reported on her W-2 in 1981. She attributes this to an
"innocent mistake "
Woodall goes on to testify that, with respect to payroll
deductions, Wine reversed himself in 1981 and approved
her practice of taking a vacation check in gross amount.
Thus, she claims to have prepared such a check in 1981
and to have given this check to Wine, stating that she
had not taken taxes out on the basis of information she
had received from the IRS To this, Wine, according to
Woodall, simply replied, "That's all right " Woodall also
charged that, since 1980, Wine had seen all of her vaca-
tion checks, yet said nothing She also relates that, as late
as September 1982, she told Mario Pinti, Respondent's
treasurer, and Truman Rhodes, its president, "why I
didn't take taxes out of my vacation." In assessing the
credibility of Woodall in this respect, I consider it entire-
ly unlikely that Wine would have condoned her discrep-
ant handling of Federal and local taxes Furthermore, I
find it difficult to believe that Woodall, who was mindful
of the distinction between income taxes and such payroll
taxes as workmen's compensation, unemployment com-
pensation, and social security, could have been misled by
anything an IRS representative would have informed
her Indeed, the fact that she forgot to include her vaca-
tion income in the 1981 W-2 form arouses suspicion as to
whether, in fact, there was such a telephone call to the
IRS. Furthermore, contrary to the assertion by Woodall,
I believed the testimony of Wine that he does not partici-
pate in the preparation of checks, that he signs checks
only in emergency situations, and that, contrary to Woo-
dall, it was the latter who customarily prepared checks
and used the check writer in connection therewith 17 Fi-
nally, I did not believe Woodall's claim that she, for un-
explained reasons, in 1982 or at any other time, alerted
Respondent's president and treasurer to the fact that she
was not taking payroll deductions from her vacation pay.
Notwithstanding my rejection of Woodall's testimony,
the General Counsel contends that the fact that the pay-
roll discrepancies were discovered on September 22, and
" The General Counsel attacks the credibility of Wine by pointing to
his testimony concerning an alleged investigation by a representative of
the Department of Labor First, contrary to the General Counsel, ac-
cording to my understanding of the record, Wine did not relate that such
an investigation was among his reasons for the termination of Woodall
Furthermore, I cannot agree that he was impeached by his admission on
cross-examination, that the investigation in question was conducted in
February 1983 Contrary to the General Counsel, Wine's testimony on
direct did not Indicate that the investigation took place in the fall of 1982
Instead it was the essence of his testimony at that point that this occurred
"after this development in the fall of `82," or in others words, after the
permanent layoff of Woodall Indeed, on cross-examination, when the
General Counsel rephrased erroneously Wine's testimony, indicating that
he had testified to a visit from an investigator from the Department of
Labor "in the fall of 1982," Wine as part of the same colloquy responded
"You're putting words in my mouth "
1353
the discharge did not take place until December 10, im-
plies a wrongful motivation. i a However, in the circum-
stances, the delay was perfectly understandable. At all
times between September 22 and December 10, unfair
labor practice charges and a complaint were pending. By
letter dated November 6, 1982, Respondent's attorney in-
formed a Board agent that it was Hostler's "understand-
ing" that the executive board intends to terminate the
employment of Woodall on the basis of the report re-
ceived from Jones on November 4, 1982 That letter also
referred to an agreement with the Board agent whereby
Hostler had agreed to recommend that Respondent not
terminate Woodall until the Board is given advance
notice of any such action.19 By letter dated December 9,
1982, Respondent's attorney informed the Board agent
that the executive board had approved Wine's recom-
mendation to lay off Woodall on a permanent basis effec-
tive December 10 The letter states in material part as
follows:
As you know it has been my opinion that Local
596 had the lawful right to discharge Mrs. Woodall
for the preparation of the false financial report sub-
mitted to the Internal Revenue Service and the De-
partment of Labor.
The false reports covered up vacation pay re-
ceived by Mrs. Woodall in 1981 and 1982. My posi-
tion on this issue was re-enforced by the enclosed
document which reflects that Mrs Woodall, in
Check No. 7203, changed the amount upon the in-
struction of Business Manager Wine, to reflect the
required FICA and other tax deductions These
records clearly negate the position taken by Mrs.
Woodall regarding her 1981 and 1982 vacation pay-
ments that the exclusion from wages have been ap-
proved by the Internal Revenue Service
The discipline of any employee who is the beneficiary of
a pending unfair labor practice complaint is, and will
always be, an act likely to invite further charges and liti-
gation and, hence, requires a commitment on the part of
the employer of time and resources in defending an addi-
tional cause of action. Contrary to the General Counsel,
in the circumstances, the fact that Respondent adopted a
1s Woodall testified that she was first made aware that there was a
problem with her vacation pay on November 12, when she was confront-
ed by CPA Jones who inquired if she reported her vacation pay on her
1981 W-2 form Although she initially indicated that she had, on further
investigation she found that she failed to report such income in 1981
Later, she learned from Wine that he had been aware of the "mistake"
since September According to Woodall, when she inquired as to why he
did not inform her earlier, Wine responded, "Well, I have got you exact-
ly where I 'want you you are costing the Local money We
have to pay Bob Jones two hundred dollars " Woodall claims to have
then reasoned that, had she been alerted to the problem earlier , it would
not have cost the Local anything as she could have made the amended
returns , whereupon Wine is alleged to have accused her of being "dis-
honest trying to defraud the government a barfly and
a member of the mafia " Wine denied having any conversations whatever
with Woodall in the fall of 1982, concerning her treatment of vacation
pay for tax purposes, and specifically denied calling her a "barfly," tell-
ing her that he had her where he wanted her , or that she was no good
Here again , i credit the testimony of Wine as the more probable
"See R Exh 10
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deliberative approach in deciding to terminate Woodall
fails to arouse suspicion as to the bona fides of its action
Moreover, this is not within the mainstream of cases
where a delay in effecting discipline might be indicative
of illegal motive Unquestionably suspicion would arise,
were an employer to condone misconduct by not impos-
ing discipline, only to later do so and to resurrect the
same ground on intervention of activity protected by the
Act. Here, however, the complaint and the involvement
of the Regional Director on behalf of Woodall had been
pending long prior to Respondent's September 22 discov-
ery of her misconduct. Indeed, there is every reason to
believe that Woodall did not even prepare the checks
until well after the original charge in Case 6-CA-15646
had been filed on July 19, that charge's amendment on
August 31, and the issuance of a complaint on September
1 20 In addition, there is no reason to believe on this
record that, during the interim between September 22
and December 10, Woodall engaged in a single protected
act or that there had been any new charges or unfair
labor practice complaint issued against Respondent
Unquestionably, the termination of a beneficiary of a
pending unfair labor practice complaint is to be viewed
with circumspect. This is particularly so where credible
evidence reveals that the employer had theretofore mani-
fested animus with respect to the alleged discriminatee's
union activity This background, alone, suffices to estab-
lish that the General Counsel had met its initial proof re-
sponsibility that protected conduct was "a" motivating
factor in the Employer's disciplinary act. See Wright
Line, 251 NLRB 1083 (1980). However, Respondent
herein has presented evidence which demonstrates that
Woodall would have been terminated even in the ab-
sence of her participation in any protected conduct, in-
cluding the filing of unfair labor practice charges. The
cause assigned was significant and substantial, not inher-
ently suspect, and credible. Woodall's discrepant han-
dling of her vacation pay served her own pecuniary in-
terest, while placing Respondent in noncompliance with
the regulations of taxing and regulatory agents, both at
the state and Federal levels. Absent proof in the form of
disparate treatment, or other evidence suggesting pretext,
it is concluded that the General Counsel had failed to es-
tablish by a preponderance of the evidence that Re-
spondent violated Section 8(a)(3) and (1) of the Act by
on December 10, 1982, permanently laying off Woodall.
Accordingly, the allegation in this respect shall be dis-
missed
3 Respondent violated Section 8(a)(1) by, on July 12,
1982, threatening to reduce the terms and conditions of
employment of Lylloth Woodall because she had en-
gaged in union activity
4. Respondent did not engage in any other unfair labor
practices alleged in the instant complaints.
5 The unfair labor practice set forth in paragraph 3,
above, is an unfair labor practice affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that it be
ordered to cease and desist therefrom.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed21
ORDER
The Respondent, International Brotherhood of Electri-
cal Workers, Local Union No. 596, AFL-CIO, Clarks-
burg, West Virginia, its officers, agents, and representa-
tives, shall
1 Cease and desist from threatening that terms and
conditions of employment will be reduced because em-
ployees engage in activity on behalf of a union or in any
like or related manner interfering with, coercing, or re-
straining, employees in the exercise of the rights guaran-
teed by Section 7 of the Act
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act.
(a) Post at conspicuous places at its meeting halls, busi-
ness offices, and at all places where notices to employees
are customarily posted copies of the attached notice
marked "Appendix."22 Copies of the notice, on forms
provided by the Regional Director for Region 6, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted Reasonable steps shall
be taken by Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
CONCLUSIONS OF LAW
1. Respondent International Brotherhood of Electrical
Workers, Local Union No 596, AFL-CIO is an employ-
er within the meaning of Section 2(6) and (7) of the Act
2. Office and Professional Employees International
Union, Local No 67, AFL-CIO-CLC is a labor organi-
zation within the meaning of Section 2(5) of the Act
20 The formal exhibits reflect that Wine signed a return receipt signify-
ing service of the September 1 complaint had been effectuated as of Sep-
tember 3 See G C Exh 1(e) Indeed, by September 9, Respondent had
filed its answer hereto See G C Exh 1(f)
21 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
22 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
ELECTRICAL WORKERS IBEW LOCAL 596 1355
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
Accordingly, we give you these assurances
WE WILL NOT threaten that benefits will be reduced
because any employee engages in activity on behalf of
Office and Professional Employees International Union,
Local No. 67, AFL-CIO-CLC or any other labor orga-
nization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights defined above
INTERNATIONAL BROTHERHOOD OF ELEC-
TRICAL WORKERS, LOCAL UNION No. 596,
AFL-CIO