Fidelity Telephone Co.

National Labor Relations Board - Board Decisions

May 17, 1978

236 N.L.R.B. 166 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fidelity Telephone Company and Communications
Workers of America, AFL-CIO. Case 14-CA-
10069
May 17, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On February 2, 1978, Administrative Law Judge
Sidney J. Barban issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and attached
Decision in light of the exceptions and brief and has
decided to affirm the rulings, findings,' and conclu-
sions of the Administrative Law Judge, to the extent
consistent herewith, and to adopt his recommended
Order.
We agree with the Administrative Law Judge's
findings that Respondent violated Section 8(a)(I) of
the Act by coercively interrogating employees and
applicants for employment regarding their and other
employees' union activities and sympathies, by,
promising employees increased benefits if they re-
jected the Union at the December 15, 1976, election.
and by, threatening employee Bierman that "things
will get a lot stricter" if the Union were selected, and
with similar such statements to Bierman. We also
agree with the Administrative Law Judge that Re-
spondent engaged in unlawful conduct by enforcing
work rules more harshly and strictly because the em-
ployees selected the Union, and by advising employ-
ees that new and more onerous work rules were im-
posed, and extant rules were more strictly enforced,
because they had selected the Union. Further, we
agree with the Administrative Law Judge's conclu-
sion that Respondent constructively discharged em-
ployee Berti in violation of Section 8(a)(3) and (I) of
the Act for the reasons discussed, infra.
We do not agree, however, with the Administrative
Law Judge's finding that Supervisor Delcour threat-
ened employee Berti in a conversation which oc-
'Respondent has excepted to certain credibility findings made bs the
Administrative Law Judge. It is the Board's established polico not to oier-
rule an Administrative L.aw Judge's resolutions with respect to credibilits
unless the clear preponderance of all of the relevant evidence consinces us
that the resolutions are incorrect. Standard Dry Wall Produis. Inc. 91
NLRB 544 (1950). enfd 188 F. 2d 362 (C.A. 3. 1951). We have carefull%
examined the record and find no basis for reversing his findings
curred a day or so prior to the election. The record
shows that shortly before the election Delcour called
some 12 employees into his office individually and
read to them a prepared speech. which is in evidence.
Berti was the only employee to testify concerning
such conversations, and she testified that Delcour
said "things would get stricter if the Union was voted
in, more like Continental and Bell." However, Berti,
in her testimony, made it clear that Delcour did
nothing more than read to her his prepared remarks.
The Administrative Law Judge, without passing on
the legality of the speech itself, concluded that the
speech was intended to deliver the message that there
would be a more stringent enforcement of the work
rules and that, if this was the impression which Berti
received from listening to Delcour's remarks, then
Respondent must be held responsible for what it in-
tended. This is not the test, however. A respondent is
responsible only for the remarks it makes to employ-
ees and not for the impressions that employees may
derive from the remarks. Here, the speech in question
clearly falls within the limits of Section 8(c) of the
Act and, absent evidence that Delcour departed at
any time from the text of this speech, we are unable
to predicate a violation of the Act on the mere im-
pression an employee received from listening to pre-
pared remarks. Accordingly, we shall dismiss this
allegation of the complaint.
We also disagree with the Administrative Law
Judge's conclusions that Respondent's installation of
monitoring equipment in the facility and its change
in the vacation policy were unilateral changes in de-
rogation of the Union's status as bargaining repre-
sentative and on this basis constituted violations of
Section 8(a)(l) of the Act. The General Counsel nei-
ther alleged nor argued such a theory and in the cir-
cumstances of this case, we do not believe that that
theory should be relied on for finding violations of
the Act. What was alleged was the General Counsel's
claim that these changes were acts of reprisal against
the employees for having selected the Union as their
bargaining representative, and, as noted by the Ad-
ministrative Law Judge, the underlying facts were
fully litigated. The Administrative Law Judge found
that the installation of the monitoring equipment was
not an act of reprisal, and we agree with this finding
based on the evidence that the decision to install the
equipment was made, and the actual installation of
the equipment begun, several months prior to the
election. The Administrative Law Judge also found
that Respondent's change in vacation policy, which
required employees to select their vacation dates by
February 15, instead of, as had been the case, by
April 15, was not an act of reprisal. We do not agree.
The change in question was clearly detrimental to the
236 NLRB No. 26
166
FIDELITY TELEPHONE COMPANY
interests of the employees and affected a term and
condition of employment. The change in vacation
policy occurred after the election in which the Union
was selected as the employees' bargaining representa-
tive and, in the absence of any plausible explanation
of this abrupt change in policy, we conclude that Re-
spondent's action was in reprisal for the employees'
decision to select the Union as their bargaining rep-
resentative. Accordingly, we find that Respondent
did not violate the Act by installing monitoring
equipment in the facility, but that Respondent did
violate Section 8(a)(1) of the Act by changing its va-
cation policy.
We agree with the Administrative Law Judge's
finding that Respondent constructively discharged
employee Berti in violation of Section 8(a)(3) and (1)
of the Act. As outlined above and detailed more fully
by the Administrative Law Judge. Respondent, im-
mediately following the election, embarked upon a
course of conduct designed to punish its employees
for selecting the Union as their bargaining represent-
ative, and all operators suffered from both the more
rigid enforcement of extant rules and the imposition
of new rules. Thus, through the imposition of new
rules, Respondent absolutely prohibited employees
from talking while on duty and required them to
schedule their vacations much earlier than in prior
years. Other new rules, which were the whimsical
creations of individual supervisors. prompted Super-
visor Moeckel's criticism of employee Berti for hav-
ing her foot "in [her] chair" and resulted in
Moeckel's advice to employee Ryan that the method
employed by Ryan in preparing certain paperwork.
which was the method employed by all operators
pursuant to prior instructions, was incorrect. After
the election and contrary to preelection practice, Re-
spondent strictly enforced its rule prohibiting opera-
tors from leaving their stations without permission,
to the point of requiring employees to obtain permis-
sion to go to the restroom. On one occasion, employ-
ee Bierman was required to justify her need to be
excused and, because they failed to obtain "permis-
sion." employees Berti and Ryan were reprimanded
for leaving their work stations. Ryan's absence oc-
curred when she went to a higher authority to ques-
tion Moeckel's institution of the new paperwork rule
mentioned above. Berti left her chair for 15 seconds
to retrieve a piece of paper which had fallen on the
floor. When employees Hilliard and Berti com-
plained about the rules and the harassment of em-
ployees to Supervisors Jergens and Bennett. re-
spectively, they were told that the supervisors were
under instructions to strictly enforce the rules. Del-
cour, in response to similar complaints from Bierman
and Berti, advised the employees that this treatment
was what they had "voted" and what they would
have to "put up with."
It is in this context of what we have found to be
preelection threats of reprisal and the postelection
fulfillment of those threats that Berti's departure
from Respondent's employ must be viewed. On Feb-
ruary 2, 1977, Supervisor Schatz, pursuant to
Delcour's instructions, called Berti into an office and
reprimanded her for "bringing an unauthorized per-
son up on company premises" in violation of one of
Respondent's rules. This reprimand was given de-
spite the fact that the person who was "unauthor-
ized," Berti's mother, did not enter the operator's
work area, which Respondent, through this rule,
sought to insulate from disturbances and "eaves-
dropping." Moreover, on other occasions, nonem-
ployees had been seen in the work area by operators,
and no objections were raised to their presence, with
the exception of one occasion when the niece of an
operator was required to remain in the operators'
lounge. After advising Berti that her "attitude toward
her supervisors" was poor, which Berti disputed with
the exceptions of her relationship with Moeckel,
Schatz told Berti that she would be given "retrain-
ing." which would begin the following week, and
that, in the meantime, she should go home and "eval-
uate herself." Schatz admitted that this "self evalua-
tion" was a "new procedure" which she decided to
try out for the first time on Berti. Rather than accept
these conditions and disputing Respondent's appar-
ent emphasis on "attitude" as opposed to work per-
formance. Berti advised Schatz that "maybe it would
just be best if I quit." Schatz made no reply and Berti
left.
In our opinion, Berti's act of quitting her employ-
ment was the direct result of Respondent's unlawful
harassment of its employees. Immediately after the
election, Respondent embarked upon a course of
conduct violative of the Act which was clearly de-
signed to punish its employees for their exercise of
the rights guaranteed to them by the Act. The natural
consequences of such a campaign are employee bit-
terness, disquietude, and, ultimately, the termination
of the employment relationship. The employees in-
volved in this proceeding were subjected to rigid en-
forcement of extant work rules and the imposition of
new work rules, which were also strictly enforced,
after they selected the Union as their bargaining rep-
resentative. Indeed. Schatz' imposition of the condi-
tion that Berti "evaluate herself" was but another in-
stance of the harassment visited upon the employees
and, in the context of the conversation between
Schatz and Berti, was a precipitating cause of Berti's
decision to quit her employment. With Berti's quit
Respondent attained the ultimate result of its unlaw-
167
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ful campaign, and it must be held to have intended
that such would occur. Accordingly, we conclude, in
agreement with the Administrative Law Judge, that,
by causing Berti to quit her employment, Respon-
dent constructively discharged her in violation of
Section 8(a)(3) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Fidelity Telephone
Company, Sullivan, Missouri, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
STATEMENT OF THE CASE
SIDNEY J BARBAN. Administrative Law Judge: This mat-
ter was heard at St. Louis, Missouri, on May 10 and 11.
1977, upon a complaint issued on April 13, 1977, based
upon a charge filed on March 1, 1977, by Communications
Workers of America, AFL-CIO (herein the Union). The
complaint, as amended at the hearing, alleges that Fidelity
Telephone Company (herein Respondent) violated Section
8(a)(1) of the National Labor Relations Act, as amended,
by (I) interrogation of employees concerning union sympa-
thies; (2) threatening employees with reprisals for support
of the Union; (3) taking reprisal against employees for sup-
port of the Union; and (4) advising employees that more
onerous working conditions of which they complained
were due to their selection of the Union as their bargaining
representative; and violated Section 8(a)(3) and (1) by con-
structively discharging and refusing or failing to reinstate
Susan Renae Berti for the purpose of discouraging union
membership and union activities. The answer to the com-
plaint denies the commission of the alleged unfair labor
practices, but admits allegations of the complaint sufficient
to justify assertion of jurisdiction under current standards
of the Board (Respondent, a public utility providing tele-
phone services at a facility-located at Sullivan, Missouri,
during a recent annual period performed services valued in
excess of $250,000, of which in excess of $50,000 was de-
rived from calls originating or terminating outside the State
of Missouri), and to support a finding that the Union is a
labor organization within the meaning of the Act.
Upon the entire record in this case, from observation of
the witnesses and their demeanor, and after due consider-
Certain errors in the transcript have been noted and are hereby correct-
ed.
ation of the briefs filed by the General Counsel and Re-
spondent, I make the following:
FINDINGS AND CONCLUSIONS
A. Introduction
The events in this case involve primarily the telephone
operators employed at Respondent's Sullivan, Missouri, fa-
cility. In July 1975, the Union filed a petition for certifica-
tion as bargaining representative of those operators, but
the Board held that this unit was not appropriate. The
Union then, on March 2, 1976, filed a petition for a more
comprehensive unit of Respondent's employees, including
the operators, apparently in accord with the position taken
by Respondent. An election was held in this unit on April
2, 1976, in which a majority of the voters voted against
representation. The Union filed objections to the election,
and the election was set aside by stipulation of the parties.
On December 15, 1976, a second election was conducted in
which a majority of the employees voting selected the
Union as their bargaining representative. Respondent filed
objections to the conduct of this election. After a hearing
upon Respondent's objections, the Board, on May 9, 1977,
certified the Union as the bargaining representative of the
employees in the unit. For the most part, the matters with
which we are here concerned occurred just before and soon
after the election held on December 15, 1976.
At times material to this proceeding, Respondent em-
ployed about 24 telephone operators in the unit involved.
The traffic manager in immediate overall charge of the
operators was Mr. Ivy L. Delcour. Also supervising the
work of the operators was the senior supervisor, Patsy
Schatz (incorrectly spelled "Shautz" throughout the rec-
ord), and several other supervisors. On the basis of the
record as a whole, I find all of these to be supervisors
within the meaning of Section 2(11) of the Act.
The decision of the issues in this case depends essentially
upon resolution of the conflicts in the testimony among the
various witnesses. In assessing the credibility of the wit-
nesses, I have considered my impressions of the witnesses
and their testimony, the record as a whole, and particularly
the arguments made in the parties' briefs, as well as the
probabilities inherent in the situations involved. The fol-
lowing findings are based upon my resolution of these
credibility conflicts. To the extent that the evidence is not
consistent with these findings I do not credit the evidence.
To the extent it seems advisable, the basis for credibility
findings will be indicated.
B. Alleged Interference With and Restraint and Coercion
of Employees
1. Delcour's conversation with Bierman on December 14
The day before the election scheduled for December 15,
Brenda Bierman, one of Respondent's telephone operators.
'68
FIDELITY TELEPHONE COMPANY
having just gotten off from work, was seated in her car,
apparently parked near Respondent's place of business,
when she saw Delcour coming across the street from a res-
taurant. It was raining. Delcour tapped on the car window
and Bierman let him in the car. The record shows that
Delcour considered that he was a friend of Bierman's and
she had in the past given him reason to believe that she was
opposed to the Union. After speaking of some matters in
general, Delcour said, "Looks like tomorrow is the big
day." He continued, "I sure hope you and the other girls
don't let me down, because right now we're working on a
way to get you higher pay for evening and weekend
work." 2 Bierman agreed that this would be welcome. Del-
cour went on, saying, "Do you know why the girls are
trying to get a union? Right now you guys have really good
working conditions. You can get off pretty well anytime
you want to." Delcour told Bierman that if the union were
successful, things would get a lot stricter, saying, "There
will be absolutely no talking, and you will have to answer
for everything you do." Delcour stated that though the em-
ployees probably would get more money if the Union came
in, they would more than likely pay it back to the Union in
dues. Delcour asked Bierman how she thought certain em-
ployees-including Susan Renae Berti-would vote. Bier-
man told Delcour that she had heard that Berti was against
the Union. Delcour asked if Bierman did not think he had
been fair to the girls. Bierman responded that she thought
he had been fair. Delcour concluded that he felt like a
father to the girls and that "he would try to be good" to
them if they "would just give him an opportunity and not
vote the union in." This terminated the conversation.
The above findings are based on Bierman's credited testi-
mony. She seemed a credible witness at the hearing, though
she suffered from what seems to be a common inability to
fix some times and situations precisely. I have reread her
testimony in light of Respondent's criticisms and find no
reason to discredit her on the matters set forth above.
Delcour agrees that he told Bierman on this occasion
that "Tomorrow is the big day," that he hoped the opera-
tors would not vote the Union in, that he thought the operators
had good working conditions, that he may have told her on
this occasion that under Union contracts at other telephone
exchanges rules were stricter than at Respondent, 3 and that
he may have told her on this occasion that he felt like a father
to the girls. Other than this, Delcour denies the statements
attributed to him. In particular, he denied that he has any
input into wage decisions and is not consulted or advised
concerning wage raises.4 Delcour originally testified on direct
2 The record shows that Delcour considered that Respondent's weekend
and evening working schedules to be particularly disagreeable working con-
ditions.
It is of some significance that the only rule at unionized telephone ex-
changes of which Delcour is aware that is stricter than that at Respondent is
one which prohibits talking. Though Delcour indicated in his testimony that
he did not specifically discuss this rule with the operators. the speech which
examination that though he did not ask Bierman how the
employees were going to vote, she "volunteered to me how
she thought others would vote," but also "didn't name any
names of anyone on that occasion." On cross-examination,
Delcour asserted that though Bierman had volunteered infor-
mation to him previously, "on that particular day," he didn't
believe that she gave him any information.
I further do not credit Delcour's testimony to the effect
that Bierman on this occasion took the initiative in inviting
him into her car to talk to her and that he had no purpose
in talking with Bierman. The contents of the conversation,
and Delcour's campaign at the time to induce the operators
to vote against the Union are persuasive that this incident
was part of Delcour's antiunion effort.
2. Delcour's preelection statement to the operators
Prior to the December 15 election, Delcour called 10 to
12 operators individually into his office where he read a
statement to them. There is some dispute whether the type-
written statement which was received in evidence (G.C.
Exh. 3) is an accurate copy of the document used by Del-
cour during these talks. I find it unnecessary to resolve this
dispute for reasons set forth below. The typewritten state-
ment in evidence begins with a statement of the events
leading up to the second election to take place on Decem-
ber 15. and continues as follows:
This election coming up Wednesday is important to
you for a number of reasons:
FIRST The union is not interested in you as an indi-
vidual or in your family.
SECOND The union is interested only in taking
money from you in dues, fees, assessments, etc. The
union hopes it will get the chance to take 8 dollars a
month from each employee who works here. Which
would mean 96 dollars a year in just dues alone out
of your pay.
I don't know what the union has been promising to
get votes but the fact is that all pay and benefits come
only from the Company. Another thing we feel is im-
portant and that is with a union you as individuals
could no longer speak for yourself about your pay,
your benefits, and your job. This is perhaps the great-
est loss to any employee with a union in the picture.
You can keep your right to speak for yourself about
all these things when and only when you vote NO in
the election.
he read to the operators (discussed hereinafter) referred specifically to this
rule
4 I find it strange that the manager of an important segment of Respon-
dent's operations should he so isolated, but this past practice would not
have prevented him from making such a recommendation on this occasion.
nor is there anything in the record that shows the employees had reason to
disbelieve that he had such authority.
169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By voting no which you have the legal right to do
you will be telling the union that you want to keep all
of your paycheck every payday and that you want to
continue to keep your right to speak for yourselves as
individuals.
Just recently the TV news report showed where this
union has called employees out on a strike for over
seven months now in Illinois. Can you imagine what it
would be like to be out on strike without pay for 7
months. It is not a nice thing to happen to anyone.
We have heard that the Union has been telling our
employees that under a union they would not have to
abide by the Public Service Commission Standards or
any of the company's rules, but this is not true and the
union knows it. In fact the rules at the Bell System
absolutely PROHIBIT any talking when operators are
working on the Board and if they do talk it means
automatic discharge. We also have a rule against talk-
ing when you are on the Board but we have never
discharged anyone for it that I know of. We will talk
to you and caution you not to do it again but as far as
I know we have never discharged anyone for talking
the first time while working on the Board.
I don't want anyone to believe that we are perfect
and of course you know better, but I can assure you of
one thing, the working conditions here are much bet-
ter than they are at Bell or Continental or any other
company where the people have to work under a
union. I don't think that anyone who works here can
honestly say that myself or any supervisor here is a
slave driver and we try to be fair and honest with you
at all times. I sincerely believe that this place will be a
better place to work without a union and the things
that we all know this union has done to its members. I
want you to think about these things we have dis-
cussed before you VOTE in the election and I would
appreciate it if you would give me a chance to work
with you to make our company a friendly and pleas-
ant place to work and by working together we can
make it true.
Thank you very much for sharing this time with me.
The only employee who testified about this little speech.
Susan Renae Berti, recalled (in addition to minor varia-
tions in the form of the document which she saw as Del-
cour was reading from it) that Delcour said that he had
typed the document up the night before to state a few
things that the employees should know, that he read from
several pages, that "on the last page, as he read things off.
he said things would get stricter if the union was voted in,
more like Continental and Bell." and, at the end. that he
hoped that she would vote the right way.
I find that the message which Berti derived from
Delcour's speech is that which Respondent would reason-
ably expect, and on the basis of the speech and the record
as a.whole, was the message that Respondent intended that
the employees should receive from this speech.
3. Refusal to permit Ryan to take an early breaktime
On December 16, the day after the election, some of the
operators had obtained permission to give a "shower" for
one of the operators (apparently because of her impending
marriage) at Respondent's premises during a break period.
Tina Ryan, one of the operators, asked Senior Supervisor
Schatz for permission to take her break a little early to
prepare for this event. Ryan says that in the past when
there were operators there to cover the board such permis-
sion was granted. On this occasion, Schatz told Ryan that
she could not take off early, that the supervisors "had been
told not to do that." When Ryan responded that was what
she "had figured," Schatz replied, "That's the way you
guys wanted it."
Schatz agrees that she denied Ryan's request to take an
early break period. She clearly does not have a specific
recollection of her conversation with Ryan on this occa-
sion,5 but denies that she said to Ryan "that's the way you
guys wanted it." She was not asked and did not deny say-
ing that the supervisors had been told not to grant such
employee requests.
I credit Ryan's testimony set forth above. Schatz gener-
ally struck me as tending to be prolix and nonresponsive.
quite opinionated and strongly biased, as indicated in foot-
note 5, above. I was not favorably impressed with her testi-
mony generally. In this particular circumstance, I do not
trust her recollection (or nonrecollection) of the incident
here involved.
In crediting Ryan as set forth, I have carefully consid-
ered Respondent's claim that she gave testimony in a prior
hearing inconsistent with her testimony in the present mat-
ter that Respondent's rules for the operators (discussed
hereinbelow) were not continuously posted on Respon-
dent's bulletin board. Briefly, there were two bulletin
boards on which these rules were posted: an open board
near the operators' work, and a glass-enclosed locked
board some 30 feet away. Two other employees in addition
to Ryan testified that the posted rules had been removed
for a time and then reposted during the period of the repre-
sentation proceeding. They did not specifically identify the
particular bulletin board involved. Delcour testified that
the rules had been posted for over a year in the glass-
enclosed bulletin board.
In the hearing on Respondent's objections to the second
election, in January 1977, Ryan testified in agreement with
suggestions made to her that "the set of rules was posted
on the bulletin board," and that "they have been left post-
ed up there for a long time, haven't they." In the hearing in
the present matter, Ryan explained that in the prior testi-
mony she was referring to the fact that the rules had been
posted a "long time" before they were taken down.
Aside from the issue of credibility, the question of
whether the rules were continuously posted is not of great
significance. The preponderance of the evidence is persua-
T hus. when asked what she said to Ryan on this occasion. she replied:
If I said anything atll. it more than likel, would have just been thai I
didn't see a need for it. which I didn't and still don't. We're Ihere to
perform a, duty for that company. That's our job and we're getting paid
for it. We re not paid to give showers
170
FIDELITY TELEPHONE COMPANY
sive that the rules were taken down for a time on at least
one of the bulletin boards. Rvan's testimony in the prior
proceeding, as she credibly explained it, is not necessarily
inconsistent.
Ryan also agreed that she had been in error in the previ-
ous hearing with respect to whether she could see the lights
on the switchboard when seated in a certain position. The
significance of this point is not shown. Ryan candidly ad-
mitted and in a persuasive manner explained the error.
Upon full consideration of the issues, I do not believe
that these errors detract from her testimony in this pro-
ceeding.
4. Delcour's postelection statements
(a) In early January 1977. Susan Berti became ill at
work. As discussed in more detail hereinafter, Berti called
her parents who came to pick her up. Berti's supervisor,
(leo Moeckel. became vexed because Berti had (on her
breaktime) called her parents before notifying Moeckel
that she was sick. Berti, thereafter, in an emotional condi-
tion, fell down the steps as she was leaving Respondent's
facility. This was reported to Delcour. During a conversa-
tion between Delcour and Berti concerning these matters,
in which Berti explained that Moeckel had made her upset,
Delcour asserted that he had faith in the ability of his su-
pervisorstodo the job because he had selected them with
care, and said that Berti was at fault in calling her parents
and then telling Moeckel that she was going to leave, in-
stead of asking Moeckel for permission first. Berti told
Delcour that she thought he was being unfair, to which he
replied that "this is what you girls wanted and what you
voted in, so this is what you will have to put up with."
Delcour said that "the girls had lied to him."
(b) Later in January. Delcour noticed Brenda Bierman
at Respondent's facility apparently in a "bad mood." Del-
cour asked Bierman if she was not "happy with [her] job
anymore?" Bierman responded that she thought "things
had got a lot stricter, that working conditions weren't as
good since the union had been voted in." Delcour replied,
"That's the way you voted it." When Bierman protested
that she did not vote that way, Delcour accused her of
lying to him. Delcour stated that "it looks like some of you
guys stabbed me in the back because it went through."
adding "I told you how things would be if the union went
through."
5. Respondent's work rules; enforcement of the work
rules
It is clear from the record that prior to the advent of the
Union, the operators considered Respondent's facility a
pleasant, relaxed, easygoing place in which to work. Thus
various witnessess referred to it as a "nice" place to work:
"a big happy family": "it was a free kind of atmosphere":
"it was interesting . . . and we all seemed to get along."
The rules then in effect were not consistently or rigidly
enforced. The record is also convincing that during the
course of the Union drive to organize the employees and
particularly after the second election, Respondent began to
enforce the rules more rigidly, and instituted or applied
working procedures in a manner that caused the operators
to feel that they were being harassed.
Virginia Hilliard, a reliable witness who no longer works
for Respondent, testified that in January 1977, when she
protested instructions as to the use of the newly installed
monitoring equipment as an invasion of the operator's pri-
vacy, Supervisor Jergens told her that it was Jergen's job to
give her those instructions, "that was the rules and ... we
were to follow them." Jergens further told Hilliard that in a
meeting between the supervisors and Delcour a complaint
was made to Delcour that the supervisors did not want to
enforce some of the rules, to which Delcour replied that if
the supervisors "didn't like it they could leave."
About the same time. Susan Renae Berti had a similar
conversation with another supervisor, Mary Bennett, dur-
ing Berti's breaktime. Berti commented to Bennett that it
had "reallN been a long day. and that the company was
getting hard to work for because things were getting a lot
stricter, and I felt more criticism and harrassment." Ben-
nett concurred, saying, "Well, I know what you mean,"
and told Berti that Delcour had told the supervisors that
there were four of them, and only three were necessary,
"and the supervisor that couldn't enforce the rules and be
strict about it would be the first one that would go."
Both Jergens and Bennett denied that they made the
statements attributed to them. Jergens testified that she
probablN told the operators that there were some rules she
did not like but it was her job to enforce them anyway. She
also testified that on a number of occasions. Senior Super-
visor Schatz has stated that if Jergens did not do her job
enforcing the rules, she might not continue as an employee,
but asserts that Schatz was not serious. Schatz denied that
she made the statements which the testimony set forth
above attributes to Delcour.6 Delcour was not asked and
did not testify concerning these matters. I credit the testi-
mony of Hilliard and Berti set forth.
a. Re.spondent's restriction on talking armong the operator.
Prior to the union campaign involved in this proceeding,
Respondent permitted the operators to talk among them-
selves at work so long as this did not get out of hand or
boisterous, as it appears sometimes happened. After the
second election, the employees were forbidden to talk to
each other while at work.
Respondent. however, contends that there has always
been a "no talking" rule in existence at Respondent's oper-
ation (asserting that such talking affects the operators' effi-
ciency and leads to customer complaints), that "a no talk-
ing sign has always been posted," and the employees knew
the rule, and that any change in its endorcement was "in
the interest of operator efficiency and customer service."
Several witnesses did refer to a "no talking" sign posted at
Respondent's operations, but the record as a whole makes
quite clear that there was no absolute prohibition of talking
among the operators prior to the advent of the Union.
Thus, among the written rules posted in the operators
'Schatz. however. testified that "u-e actualls don't need four lsupicrl
sors]," but use the fourth "so the supersi},or don't hase ti,. ork eers
weekend" and ti, ork during \3acaiti.ll
171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
workroom (as discussed above), the only rule on this sub-
ject is rule 7: "Do not talk to other operators either across
the room or at the other end of the room. Do not make
lights wait at any time." 7 At least one employee testified
that the no-talking rule at Respondent forbade only talking
across the room. In addition, in July 1976, Delcour pre-
pared and distributed a memorandum to the supervisors
(Resp. Exh. 3), in which it is stated: "Conversation be-
tween operators to be kept at a very minimum. If this is not
successful we have no alternative but to discontinue all
conversations between operators. This I would much dis-
like having to implement." This, of course, clearly indicates
no absolute prohibition on talking among the operators.
Further, as has been noted, Delcour told the operators be-
fore the second election, that their privilege of talking at
work would be jeopardized by voting the Union in.
On the basis of the above, and particularly in light of
Delcour's preelection predictions, his manifest distress at
the employees' vote for the Union. and the timing of the
event, I find that the institution of the new rule prohibiting
all talking among the operators at work was occasioned by
the fact that they had voted for the Union as their bargain-
ing representative.
b. Installation of monitoring equipmenm
In January 1977, after the election, Respondent in-
stalled certain monitoring equipment in the operators
room. The operators were given no advance notice of this
change although the equipment had been under construc-
tion by certain of Respondent's service personnel for about
3 months. Concurrent with the installation of this equip-
ment, it was impressed upon the operators that they would
be required, under penalty of discharge, to keep the keN at
their work stations in a position which would permit the
supervisors to hear everything the operators said at their
stations. Some operators were reprimanded for failing to
keep their keys in the required open position at all times.
The record shows that there are good operating reasons for
keeping the operator's key in other positions on occasion to
accommodate certain circumstances. It is indicated that
Respondent had not previously insisted that the key be
kept in an open position at all times.
General Counsel contends that this equipment was in-
stalled to assist Respondent in enforcing its new no-talking
rule. However, based upon Respondent's uncontroverted
testimony that this is equipment of a type used in the in-
dustry, that it was authorized and constructed during sev-
eral months before it was installed, and that its purpose is
to facilitate communications between the operators and the
supervisors, and better enable the latter to assist the for-
mer., I do not find that the monitoring equipment was in-
stalled for the purpose of enforcing the new no-talking
rule, although it probably aids in that effort.
Lights ,on the switchboard indicate calls 'hich the opr llors mustr himll
die quickly. Should talking interfere with this, it would, of course. impair the
operator's efficiency.
c. C(hange in vacltion policli
In January 1977, Respondent also changed its vacation
policy for the operators. It was announced that the opera-
tors would be required thenceforth to select their vacations
for that year by February 15, instead of April 15. Respon-
dent asserted this change was required by its budgeting
procedure, but was unable to explain the connection fur-
ther. It was indicated that the employees feared that this
change would prevent them from taking single days of va-
c(ation at a time as in the past, but this does not seem well
founded on this record. Of course, in common experience.
halving to select a vacation period in IFebruary is less desir-
able than making the selection in April, closer to the usual
'acation time, and this new rule, in the context of Respon-
dent's other indications of reprisals against the employees,
necessarily served to exacerbate the tensions being built up
bh Respondent's actions.
d. Rule cagain. leavinf .stions
Among the rules for operators posted as referred to
above was the following: "Operators shall not leave their
position at any time without notifying a supervisor." It ap-
pears that prior to the representation election, the rule was
not rigidly enforced. Operators did leave their positions to
go to the restroom without notifying a supervisor when the
hoard was not busy. There is no evidence of an employee
being criticized for such conduct prior to the union cam-
paign. After the second election enforcement of the rule
became much stricter. All of the incidents concerning the
enforcement of this rule involve one supervisor. ('leo
Moeckel. who, it appears, was the most inflexible of the
supervisors in this connection. On one occasion, when Su-
san Berti dropped a piece of paper on the floor which
should have been placed in a slot on the board, Moeckel
criticized Berti for leaving her position for about 15 sec-
onds to retrieve the paper. (Moeckel thereafter was in-
volved in other incidents with Berti discussed hereinafter.
which led to Berti's leaving Respondent's employment.) Bi-
erman testified to an instance in which lMoeckel required
Bierman to justify her need to go to the restroom i Bierman
having recently been on her breaktime) before giving her
permission to go, a "hassle" which Bierman had not experi-
enced before the advent of the U nion.
Moeckel was also involved in an incident regarding em-
ployee Tina Ryan. in which Moeckel insisted that Ryan
handle her paper worL in a manner different than the pre-
vious practice. When Rvan asked, Moeckel admitted that
she had decided upon the change at that moment. During
the course of the morning this began to upset Rvan (who
seems from the record to be rather emotional) to the point
that she left her position without consulting Moeckel to
protest the new procedure instituted b Moeckel. It ap-
pears that management agreed that Moeckel should not
have changed the procedure. but Ryan was reprimanded
for leaving her position without permission to protest the
matter.i
\i 'T Ii hlI Clllpl!o t.c' ikIl. KlIicnll ltl'l, ,III ( oi,!.Cr i inT/, r Ic l dr1I
lc rnfitd that Srir utll R 'l lliC ll! 'II/ o11Cll h ,JLSC (i itf, L x.r ,,he.' I
-1tcred arb.ltraLr. ;td tillfail .rcl cLriI l of R .anor1 thr, oct- wSlin
172
FIDELITY TELEPHONE COMPANY
e. Rule against unauthorized personnel
At the top of a set of stairs leading from a street door
into Respondent's building there is a small hallway with
several doors. Over one of these doors, leading directly to
the employees' restroom area, is a sign reading "Author-
ized Personnel Only." There is a bulletin board in this rest-
room area on which the employees' work schedules are
posted periodically. There is access to the operators' work-
room through a door in this area. Another door leading
from the hallway also gives access to the operators' work
area, through the operators' lounge and past Supervisor
Schatz's desk. There is no sign over this doorway. As dis-
cussed in more detail in connection with the termination of
Berti's employment. the rule was rather erratically en-
forced. At one point, during the union campaign here in-
volved, an employee placed a note in the company sugges-
tion box, asserting: "If one employee is allowed to bring
guests to take a tour of the office and plant, then ALL.
employees should be entitled to this opportunity!!!" Del-
cour posted this note and his typewritten reply dated
12/l1/76, stating: "ANYTIME-between 8 a.m. & 5 p.m.
Monday thru Friday with proper supervision. I ask that all
tours and guests be cleared thru me." 9
Delcour testified that the reason for the rule is that per-
sons coming into Respondent's operations "would disrupt
working operations and certainly they might be exposed to
conversations [which they should not hearl if they' overhear
the operators talking to a customer or something of that
sort..."
In earl)y January, Berti's mother accompanied her into
the restroom area in Respondent's facility where the bulle-
tin board is located, under circumstances discussed herein-
after. There is no evidence that she entered the operators'
area, disrupted any operations, or was in a position to over-
hear any conversations. As set forth in connection with
Berti's termination of employment, Berti was criticized for
this incident, as part of the sequence of events leading to
her leaving her job with Respondent. No other evidence of
criticism or reprimand for violation of this rule after the
first of December 1976 was shown.
6. Delcour's interview with Schleifer
In late March 1977, Rita Schleifer. who applied for a
job with Respondent. was interviewed by D)elcour. Schleif-
er testified that Delcour told her that the Union was trx ing
to come into Respondent's operation and asked her opin-
ion of it. She said she had no experience working under
union conditions and she had no opinion about it. She was
thereafter employed.
Delcour asserts he merely told Schleifer that the Union
was trying to organize Respondent's employees, and did
not ask her opinion.
I credit Schleifer. She persuaded me that she had been
queried about the Ulnion, Delcour was clearly trying to
keep the Union out. There was the possibility at the time
One ,ilness Iretifed thai shhe ehe~¢d the noloe .a, p-,sled in car!\
I ebruars }to'we\ el. i)ellcour " as qintie posllh'e ;is to the dte anind the note
is dated. I accept his testltllnn on the point.
that there might be another election at the time and he
would not likely desire to strengthen the Union's support.
Analysis and Conclusions
Prior to the representation election, Respondent advised
the employees that if they selected the Union as their bar-
gaining agent, rules would be stricter at Respondent's oper-
ations, and. in particular, the employees would henceforth
be absolutely prohibited from talking while at work, a
change from the condition prior to the election. Respon-
dent, by these threats of reprisal, violated Section 8(a)(l) of
the Act. During this same period, and in this context, Re-
spondent also interrogated its employees concerning their
and other employees' union sympathies and activities, and
promised the employees increased benefits without the
Union. By these activities, Respondent also engaged in
conduct in violation of Section 8(a)(I) of the Act.
After the election, in which a majority of the employees
voted for the Union. Respondent's working rules were
more strictly enforced against the employees. A new rule
prohibiting talking at work was also enforced against the
employees. Supervisors admitted to the employees that
they were under pressure to enforce the rules even against
the supervisors' wishes. Upon complaint to Respondent's
manager concerning these conditions, the employees were
advised that the new stricter conditions were due to the
fact that the employees voted for the Union. By these ac-
tions. and each of them. Respondent engaged in conduct in
violation of Section 8(a)( I) of the Act.
During the course of instituting the changed conditions
set forth, Supervisor Schatz denied employee Ryan permis-
sion to take her breaktimrne a few minutes early. While in
itself a seemingly minor matter. Schatz made plain to Ryan
that the refusal was based on instructions which had been
given to her and was due to the employees' vote for the
lUnion. In the circumstances, therefore, this conduct con-
stituted an act of reprisal because of the employees' pro-
tected activities under the Act, by which Respondent vio-
lated Section 8(a)( I ) of the Act.
While the installation of the monitoring equipment and
the change in the vacation policy were not shown to have
been intended as acts of reprisal, they did. in fact. consti-
tute. together with other changes instituted by Respondent.
unilateral changes in working conditions in derogation of
the l'nion's status as bargaining representative of the oper-
ators."' and therebs. in addition to the other acts of reprisal
and recriminators conduct engaged in by Respondent.
served to denimonstrate to the employees the futility of their
vote for the tUnion as their representative. Although this
theorye was not specificall? alleged in the complaint, it is
consistent with the allegations of the complaint and is
based upon facts fully litigated. It is therefore found that
bh engaging in such conduct, which had a reasonable ten-
dency to interfere with, restrain, and coerce the employees
in the exercise of their rights under the Act, Respondent
engaged in unfair labor practices in violation of Section
8(a)(1) of the Act.
1 ReSpideirlli iat.\ r ti,l i.td i1 obhlltlon tol deai wlh the representative
selcacd bh it,, eniplo, ccs llrlI ha, fiIhn objectilons to the Ielntlon In such
.a,. If it .Ats I1t dCroit.lionl to the represenlatlse. it takes the risk that Its
,obhectiott, ,ill be fllnd :1lihll itcrit is lt: the tintal l lmatter
173
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Termination of Susan Renae Berti
Susan Renae Berti began work as a temporary employee
with Respondent in May 1976, after she finished high
school. She was hired on a full-time basis as an operator in
August 1976. Senior Supervisor Schatz gave Berti the cus-
tomary 2-week training for operators, consisting in large
part of reading materials and instructions in Schatz' office
and also training and instruction at the switchboard. She
apparently became a valued operator. One supervisor, Jer-
gens, who complained of some operators not being amen-
able to instructions or directions, stated that she had no
such problems with Berti. Senior Supervisor Schatz testi-
fied that to her knowledge Berti was a good operator. "a
person . .. you don't want to get rid of."
So far as this record shows, Berti was not involved in any
union activity.
In the first months of her employment, Berti states that
she enjoyed her employment, the work was interesting, she
had no complaints, and the workers seemed to get along
well. This relationship changed. Berti noted, after the no-
tice of the second election on December 15, was posted.
Berti asserts that Respondent began enforcing new rules.
In one such instance, Berti states she "was called [by Sup-
ervisor Moeckelj on a rule about how to sit in a chair. I was
sitting in the chair . . . I had my foot in the chair and . . .
[sihe just said to get my foot off the chair." i] Similarly,
Berti testified that after the monitoring equipment had
been installed in January 1977, on an occasion when she
pulled her monitoring key back so that a customer could
not hear her cough, she was then called into Schatz' office
and asked if she had not been informed of the new rule
that Respondent wanted the monitoring key kept open at
all times. When Berti said she had, Schatz informed her
that there would he no exceptions, and that operators
would be disciplined for not following this instruction. Ber-
ti also testified to other new or changed requirements, pre-
viously discussed, which distressed the operators.
On Sunday, January 9. 1977, Berti was working on an
evening shift, which was scheduled to end 10:30 p.m..
when she began feeling ill. During her breaktime, which
began at 8:15, she called her parents and told them of her
illness. Since Berti had not driven to work because of a
snowstorm that day, her parents offered to come and pick
her up and she agreed. Thereafter, Berti told her supervisor
that evening. Moeckel, that she was sick, and wanted to go
home. When Moeckel sought to persuade her to continue,
Berti told Moeckel that she did not think she could endure
the last 2 hours and that her parents were on their way to
pick her up. At this point, Moeckel became very upset, and
told Berti that Berli "did not have any right telling [Moeck-
el]., that [Berti] should have asked her." Moeckel took the
Moeckel did not testif. Schatz, a.ho apparentls was not iMnoled in the
incidelt. in her tetrion li ail tempted to jiStlli Mieckel's reprimand ln the
basis that Berti had her footl in the chair next to her, and thus was Imut of
position to ansAer calls Berl:'s testilon., as set forth, indicates Ihat she
had her foot in the chaii In r hiih she was sitting. and that Moeckel' re-
quirriellni t wals one that }ad not pre !iousls been insisted upon I so find
remaining 2 hours off Berti's schedule. Berti testified that
she waited for her parents, and when they came, "I was so
glad to see [them] I threw my coat on; and I was running
out of the building, and I missed the top step and fell down
the flight [of steps]."
Berti recalled that this was not a very busy night, that
there were around four or five operators there and that she
had taken "[p]robably about seven calls an hour or some-
thing." Respondent's records, which I credit, show that the
calls averaged more than that number for the operators on
duty and that evening was busier than average for that
time of year. I have, as argued by Respondent, taken this
conflict into consideration in assessing Berti's credibility.
There is no contention, however, that Berti was not actual-
ly ill on this occasion, and Respondent admits that if she
were ill, Moeckel should have given her permission to take
off. There is no evidence that Respondent suffered any
difficulty as a result of this incident.
Berti was not able to report her accident to Delcour until
Wednesday, January 12. Delcour told Berti if it was neces-
sary to seek medical treatment, she should do so and Re-
spondent would pay for it. In response to Berti's claim that
she had been upset with Moeckel at the time, he replied
that he had selected his supervisors with care and was sure
they could do their jobs, that Berti was wrong in telling
Moeckel that she was going to leave, that she should have
asked the supervisor first. Berti replied that she thought
that Delcour was being unfair. He answered saying, "This
is what you girls wanted and what you voted in, so this is
what you will have to put up with." Delcour continued that
"the girls had lied to him."
Berti lost no work as a result of her accident. On Satur-
day, January 29, when Berti was going to Respondent's
operations to copy her schedule for the next days, her
mother accompanied her to see the steps which Berti had
fallen down. On this occasion, Berti's mother accompanied
her up the steps and into the operators' restroom area
where the schedule was posted. In doing so, she passed
under the sign posted above the door stating "Authorized
Personnel Only." However, she did not pass through the
door into the operators' work area. Then Berti and her
mother left.
The record shows at least four other occasions proximate
to this incident in which operators had brought outsiders
into Respondent's building (a young infant, the fiance of
an operator, a husband, and a niece of an operator). Some
came into the operators' work area, others only as far as
the operators' lounge. The operators had cause to believe
that these persons were in the building without advance
permission, and that the supervisors present at the time did
not object, except that Schatz did require the operator's
niece to remain in the lounge area, and not come into the
work area.
Someone, apparently Supervisor Moeckel, saw Berti's
mother in the operators' restroom area and reported this to
Delcour. Delcour was not informed and did not inquire
exactly where in the building Berti's mother had been or
whether her presence interfered with Respondent's opera-
tions. Delcour told Senior Supervisor Schatz to speak to
Berti about this incident. On February 2, Schatz called
Berti into an office and asked her, "what a rule meant to
174
FIDELITY TELEPHONE COMPANY
[her]," stating that Berti "had broken one of the most seri-
ous" by "bringing an unauthorized person up on company
premises." Berti asked if she had been the only one report-
ed for this. and Schatz said that she was the only one so far
as Schatz knew. Berti replied that others had also done so.
Schatz said that it was not Berti's work that she was com-
plaining about, but her attitude toward her supervisors.
Berti replied that she had good relations with three of her
supervisors (this seems to be confirmed, at least in part, by
Supervisor Jergens' testimony), but that she did have prob-
lems with Supervisor Moeckel and that other operators did
also. Schatz said that Moeckel was a good supervisor, the
others needed to be more like her, and even Moeckel need-
ed to be more strict. Then Schatz told Berti that she would
be given retraining, 2 to begin the next week, and that in
the meantime she should go home and evaluate herself.
Berti responded that she "thought that was fairly degrad-
ing; and that if she didn't think that I made the company
money or couldn't get along with my supervisors, and if my
attitude counted more than my ability to do the job . . .
maybe it would just be best if I quit." Schatz made no
reply, so Berti left, cleaned out her belongings, and on her
way out of the building, opened the door to Schatz' office
and told her that she "was sorry that I wasn't doing the job
right, and that my attitude counted more than my ability to
do the work." Schatz responded that she really had not
said that, to which Berti stated that was the impression
Schatz had left. Schatz said nothing further. Berti left.
In essence. Schatz' account of the meeting with Berti
conforms to the above. To the extent that it differs in de-
tail, it is not credited. A considerable part of Schatz' testi-
mony was devoted to her reasons for telling Berti on this
occasion that she must evaluate herself and that she would
have to be retrained, inasmuch as the original purpose of
calling Berti into the office was merely to caution her
against bringing unauthorized persons into the building.
Schatz repeated several times that this assertion that Berti
must evaluate herself and be retrained was triggered by
Berti stating in January that she did not know "what the
monitor meant." She further stated, in respect to how long
Berti's retraining would have taken, "if it was just on the
monitor . .. [i]t wouldn't take very long at all." 13 The
difficulty with this is the fact that Schatz also testified that
in January, when Berti expressed her doubts about the
monitoring procedure, Schatz then explained the proce-
dure to her very quickly. Schatz, on February 2, was clearly
not aware of any other operating problem which would
require Berti's retraining. In fact, what occurred, as indi-
cated by Schatz' testimony, is that Schatz decided to try
out on Berti, on this occasion, a new employment proce-
dure-a new working condition-which had not been pre-
I! Berti states she was told that she would he given 2 weeks' retraining,
which she understood would be a repetition of her original training when
she was first hired. Schatz denied this, saying she was not sure what the
training would be or how long it would take, However. in the absence of anr
explanation to Bertl, she was justified in understanding that the retraining
referred to would be the same as the onls training with which the operators
had ans experience
A None of this was explained to Bernl I do not credit the indication in
Schatz' testimony that she could not have explained what she meant, in ans
event. because tof Berti's emotional state
viously used or explained to the employees. As Schatz stat-
ed, "actually as I'm starting to do now, you know, on this
evaluating yourself part is new, and I felt this was the time
actually to start it.... I had never asked anybody to do it.
The company had talked about it earlier....
Analysis and Conclusions
Based upon the above and the record as a whole, I find
that Berti's quitting of her employment with Respondent
on February 2, 1977. was the direct result of the pressures
upon and the harassment of the group of operators, of
which she was one, resulting from Respondent's unlawful
course of conduct in violation of the Act. It would reason-
ably be expected that such conduct would cause bitterness
and distress among the employees and lead some of them
to quit their employment to avoid such pressures and har-
assment. The record shows that at least one other employ-
ee, besides Berti, quit for these reasons.14
Respondent argues, however that since it was not shown
that Berti was active in behalf of the Union, or that Re-
spondent knew or suspected that she was an adherent of
the Union, there is no proof of antiunion motivation, and
"[t]hus. even if it were proven that the Respondent pro-
voked Berti into quitting. it would not be a violation of
Section 8(a)(3)."
But, as has been found. Respondent embarked upon a
course of conduct in violation of the Act designed to pun-
ish and harass the employees, including Berti, because of
the exercise of their rights under the Act, which conduct
could reasonably be expected to cause some of the mem-
bers of that group to quit their employment. Respondent
must be held to have intended the reasonably anticipated
consequences of its conduct, that employee members of the
group, such as Berti. would indeed quit under pressure.
For the reasons, I find that Respondent, by causing Su-
san Renae Berti to quit her employment with Respondent
on February 2, 1977, discouraged membership in and ac-
tivities on behalf of the Union, by discrimination in regard
to hire or tenure of employment, or other terms of employ-
ment, in violation of Section 8(a)(3) and (1) 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 threatening employees with reprisals, instituting
new and more onerous rules and working conditions, and
enforcing its working rules more harshly and strictly be-
cause the employees engaged in activities protected by the
Act, and by advising the employees that Respondent was
14 One Respondent witness testified that, after her termination. Beri told
her that she had quit "when the union came in," that she "just couldn'l work
for the union."' On the other hand. Berti testified that she had told the
witness. in a casual social situation, that she had quit because it was "hard"
to work there "with the union and company disagreements" which caused
tension. Insofar as these versions differ. I credit Bert. The facts support her
version In fact, she had not set been exposed to working under a union She
did not quit .hen the .nion .won the election, and the matters causing her
quitting were the tensions created hb Respondent as set forth
175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
imposing new. onerous, and stricter working conditions
upon the employees because the employees voted for the
Union, and by coercively interrogating employees and ap-
plicants for employment concerning their union attitudes
or sympathies, and by promising employee benefits if the
employees did not vote for the Union, Respondent en-
gaged in unfair labor practices in violation of Section
8(a)(1) of the Act.
4. By causing the constructive discharge of Susan Renae
Berti. Respondent engaged in discrimination in regard to
hire or tenure of employment or other terms or conditions
of employment discouraging membership in or activities
on behalf of a labor organization in violation of Section
8(a)(3) and (I) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
and is engaging in unfair labor practices in violation of
Section 8(a)( 1) and (3) of the Act, it will be recommended
that Respondent cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of
the Act.
It will be recommended that Respondent offer Susan
Renae Berti immediate and full reinstatement to her for-
mer job or, if such job no longer exists, to a sobstantialls
equivalent position, without prejudice to her seniority or
other rights and benefits, and make her whole for any loss
of pay or benefits she may have suffered as a result of the
discrimination against her as found hereinabove by pay-
ment to her of a sum of money equal to that she would
have earned as wages or other benefits from February 2.
1977, to the date of her reinstatement, less her net earnings
during such period and interest thereon to be computed in
the manner prescribed in F. W. Woolworth Comnpamn. 90
NL.RB 289 (1950). and Florida Steel ('orporation 231
NLRB 651 (1977). 15
In order to make effective for Respondent's employees
the guarantee of rights contained in Section 7 of the Act. it
will be recommended that Respondent cease and desist
from in any manner infringing upon the rights guaranteed
by the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER 16
the Respondent, Fidelity Telephone Company, Sulli-
van, Missouri, its officers, agents, successors, and assigns.
shall:
i. Cease and desist from:
(a) Causing the termination of or otherwise discriminat-
ing against employees in order to discourage membership
in or support of Communications Workers of America.
AFL ('10. or any other labor organization.
(b) Coerceively interrogating employees or applicants
for employment concerning union activities or sympathies.
(c) Promising employee benefits in order to discourage
union activities or membership.
(d) Threatening employees with the institution of or in-
stituting rules or conditions of employment which are
stricter, more stringent, or more onerous in order to dis-
courage membership in or support of a union.
(e) Changing or enforcing its rules and conditions of
work for the purpose of discouraging, or in a manner
which will discourage. membership in or support of a
union, or otherwise penalizing or harassing employees be-
cause of their exercise of rights guaranteed under Section 7
of the Act.
(f) In any other manner interfering with, restraining,
and coercing employees in the exercise of their rights guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the purposes of the Act:
(a) Offer to Susan Renae Berti immediate and full rein-
statement to her former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to
her seniority, or other rights and privileges, and make her
whole for any loss of earnings or benefits she may have
suffered by reason of Respondent's discrimination against
her as set forth in the Remedy section of this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards.
personnel records and reports, and all other records neces-
sary to facilitate the effectuation of the Order herein.
(c) Post at its operations at Sullivan. Missouri, copies of
the attached notice marked "Appendix." 7 Copies of said
notice, on forms provided by the Regional Director for
Region 14. after being duly signed b? an authorized repre-
sentative of Respondent, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secut;ve days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to en-
sure that said notices are not altered, defaced, or covered
bh any other material.
(d) Notify the Regional Director for Region 14, in writ-
ing. within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
i See. gcneraill . I.. 'llhoiilrnt & llca/rir (,. 138 NlRB 71( 1 9h2)
In lhe cientl noi exceptirons ae filed is proidead hs Sec It2 46 of the
Rules and Regulations of the National L.ahor Rclations Board. the finding.
c,*tlusilmns. and recommended Order herein shall as proi ded in Sec
1124S if ihe Rules and Regulloi,i.. be adopted h the faird and he,,noe
it. fiindngs. conclusiols. arid Order, and all obhections Ihcieto .hall he
deemled Saled for all purposes.
in the emcnt that ihis Order is enforced bh a Judgment of the t ruled
States ( ourt of Appeals. the 'Aords iii the nitice reading "Posled h, Order
of the Nahional L abor Relalion Boird" hall read "Poned Pursua;n to a;
Judgment of Ihe tlnitcd States ( ourt of AppealN l:nforciig an Order of the
National I.abor Relations Board."
176
FIDELITY TELEPHONE COMPANY
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives employees
the following rights:
To form, join, or assist labor organizations
To bargain collectively through representatives of
their own choosing
To engage in other concerted activities for the
purpose of collective bargaining or other mutual aid
or protection
To refrain from any or all such activities, except
as may be required by a legal agreement between an
employer and the representatives of the employees.
WE WILL NOT cause the termination of employment
of, or otherwise discriminate against, any emplo\ee in
order to discourage membership in or support of
Communications Workers of America, AFL-CIO. or
any other labor organization.
WE WILL NOT coercively interrogate employees or ap-
plicants for employment concerning union activities
or sympathies.
WE WILL NOT promise employee benefits in order to
discourage union activities or union membership.
WE WIit NOT threaten employees with the institution
of and we wiil Noi institute rules or conditions of em-
ployment which are stricter, more stringent, or more
onerous in order to discourage membership in or sup-
port of a union.
WE 1i NOT change or enforce company rules or
conditions of employment in a manner which will dis-
courage. or for the purpose of discouraging. member-
ship in or support of a union, and WF WILL tNOT other-
wise penalize or harass employees because of their
exercise of rights guaranteed by the National Labor
Relations Act,
W'i Wslli NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of rights
guaranteed by the Act.
WL WiLL offer to Susan Renae Berti immediate and
full reinstatement to her former job or, if that job no
longer exists. to a substantially equivalent position.
without prejudice to her seniority, or other rights and
privileges. and make her whole for any loss of earnings
or benefits which she may have suffered by reason of
the discrimination against her. with interest thereon as
provided by the National labor Relations Board.
FiDI II i Tli I PHONE (o()%iPNY
177