Georgia Power Co.

National Labor Relations Board - Board Decisions

Apr 7, 2004

341 N.L.R.B. 576 (N.L.R.B. 2004)

NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Georgia Power Company and Bobby Lewallen. Case
10–CA–33301
April 7, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On December 9, 2002, Administrative Law Judge
Lawrence W. Cullen issued the attached bench decision.
The Respondent filed exceptions, a supporting brief, and
a reply brief. The Charging Party filed an answering
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions as
further discussed below, and to adopt the recommended
Order as modified and set forth in full below.3
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act by failing and refusing to pro-
mote employee Bobby Lewallen to a supervisory posi-
tion because he engaged in protected concerted activities.
To remedy this violation, the judge recommended that
the Respondent be ordered to cease and desist from the
unlawful conduct, to offer Lewallen a promotion to the
supervisory position, and to make Lewallen whole for
any loss of earnings or other benefits he sustained as a
result of the unlawful denial of the promotion. We agree
with the judge that the Respondent violated the Act as
alleged. However, contrary to our dissenting colleague,
we do not agree with the judge’s recommended remedy.
For the reasons set forth below, we have decided not to
require the Respondent to offer Lewallen a promotion to
a supervisory position.
In its exceptions, the Respondent contends, inter alia,
that the judge’s recommended remedy exceeded the

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 reversing the findings.
3 We shall modify the judge’s recommended Order and substitute a
new notice in accordance with our findings herein.
Board’s remedial power under Section 10(c) of the Act
because it required that the Respondent promote Le-
wallen to a supervisory position, a position that is ex-
cluded from coverage under Sections 2(3) and 2(11) of
the Act. The Respondent also argues that the remedy is
inconsistent with the Act because the promotion of an
employee to a supervisory position is an area exclusively
reserved for management. NLRB v. Ford Motor Co., 683
F.2d 156 (6th Cir. 1982).
As an initial matter, we reject the Respondent’s posi-
tion that the Board lacks the authority to order Lewallen
promoted to a supervisory position because such posi-
tions are not covered by the Act. Indeed, in Golden State
Bottling Co., Inc. v. NLRB, 414 U.S. 168, 188 (1973), the
Supreme Court noted that “[t]he Act’s remedies are not
thwarted by the fact that an employee who is within the
Act’s protections when the discrimination occurs would
have been promoted or transferred to a position not cov-
ered by the Act if he had not been discriminated against.”
Thus, we recognize both that we have the authority to
order that Lewallen be made a supervisor and that we
have exercised our authority to impose such a remedy in
the past.4
However, we find merit in the Respondent’s conten-
tion that the judge’s proposed remedy in this case (i.e.
requiring the Respondent to promote Lewallen to a su-
pervisory position) potentially infringes on the Respon-
dent’s managerial hiring prerogatives. For example, in
Ford Motor Co., supra, the court affirmed the Board’s
finding that the employer violated the Act by denying
two employees’ promotions to supervisory positions be-
cause they protested the employer’s promotion policies.
The court agreed with the Board that the company
unlawfully failed to promote the employees because they
engaged in protected conduct, but it vacated the portion
of the Board’s Order that required the employer to offer
the employees the supervisory positions they were de-
nied.
4 The Supreme Court has stated that “Section 10(c) . . . charges the
Board with the task of devising remedies to effectuate the policies of
the Act,” and that its remedial power is “a broad discretionary one,
subject to limited judicial review.” Fibreboard Paper Products Corp.
v. NLRB, 379 U.S. 203, 216 (1964), citing NLRB v. Seven-Up Bottling
Co., 344 U.S. 344, 346 (1953). Board orders will not be disturbed
“unless it can be shown that the order is a patent attempt to achieve
ends other than those which can fairly be said to effectuate the policies
of the Act.” Fibreboard Paper Products Corp. v. NLRB, supra, at 216
(quoting Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 540
(1943)). The Board’s remedial authority to require that an employer
promote an employee to a supervisory position has been upheld by the
courts in Oil Workers v. NLRB, 547 F.2d 575, 588–591 (D.C. Cir.
1976), cert. denied sub nom. Angle v. NLRB, 431 U.S. 966 (1977),
relying in part on NLRB v. Bell Aircraft, 206 F.2d 235 (2d Cir. 1953).
341 NLRB No. 77
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
In so doing, the court found that it was not “the intent
of the Act . . . to include Court enforcement of Board
orders that require management to promote a specific
employee to a position within the supervisor ranks.”
Ford Motor Co., supra at 159. The court noted that in
formulating an appropriate remedy for the unfair labor
practices, the Board must not “[assume] the managerial
responsibility of weighing a wide variety of factors in-
volved in a decision of whether an employee is suitable
for a more responsible position with additional duties.”
Ford Motor Co., supra at 159.
We find the reasoning of Ford Motor Co. persuasive,
and accordingly we hold that, while it is not outside the
scope of our remedial authority to require an employer to
offer an employee a promotion to a supervisory position,
it would not effectuate the policies of the Act to order a
“coerced promotion” in this case. Id. at 159. Lewallen
has never held a supervisory position in the Respondent’s
company, and has never been selected by the Respon-
dent’s management to be a supervisor. Therefore, by
ordering his promotion to the supervisory ranks at this
time we would be effectively assuming the “managerial
responsibility of weighing a wide variety of factors in-
volved in [the] decision” as to whether Lewallen is suit-
able for a supervisory position. Ford Motor Co., supra at
159. In the exercise of our remedial discretion, we
choose not to assume that “managerial responsibility”
here. Rather, we shall leave to the Respondent the ulti-
mate decision as to whether Lewallen should be offered a
supervisory position. Accordingly, we do not adopt the
judge’s recommendation that the Respondent be ordered
to offer Lewallen a promotion to the supervisory position
he was denied.
Our dissenting colleague cites three cases where the
Board ordered an employer to offer a supervisory posi-
tion to a discriminatee.5 However, there is no indication
in those cases that the employer excepted to the remedy.
Certainly, there is no discussion of that matter.
Our colleague notes that, in Richboro, the Board itself
imposed the remedy. But that is because the judge had
dismissed the allegation, the General Counsel excepted,
the Board found merit in that exception, and it thus nec-
essarily had to impose a remedy. However, (and this is
our sole point), the employer did not argue the remedial
issue before the Board; the employer was content to ar-
gue for affirmance of the judge.
Similarly, our colleague notes that the Board has the
power to impose a remedy sua sponte. We do not quarrel

5 Richboro Community Mental Health Council, 242 NLRB 1267
(1979); Little Lake Industries, 233 NLRB 1049 (1977); Advanced Min-
ing Group, 260 NLRB 486 (1982), enfd. 701 F.2d 221 (D.C. Cir.
1983).
with this proposition, but it is beside the point. Our
point, again, is that the employers in these cases did not
raise the issue involved herein.
In any event, the three cases clearly differ from the in-
stant one. In Richboro, supra at 1268 fn. 11, the Board
found that the employer’s discrimination was the “sole
reason” that it denied the employee a position to a super-
visory position and that his supervisor had admitted that
the discriminatee was more qualified and had more sen-
iority than the employee who got the promotion. The
judge here did not make such a finding. Although the
judge found that the “real reason” that the Respondent
denied Lewallen his promotion was due to his protected
concerted conduct, that finding does not indicate either
(1) that this was the only reason for the denial, or (2) that
he would certainly have gotten the promotion in the ab-
sence of that conduct. Indeed, the evaluation committee
was evenly divided between Lewallen and Edwin Cash
(who eventually got the promotion) and Cash was rated
higher than Lewallen in some areas, including communi-
cation skills.
Moreover, in Little Lake Industries, supra at 1055, the
employee in question had been notified of his selection
for the promotion prior to the discriminatory conduct
(indicating that the employer had selected the employee
for the promotion, and then changed its mind).
Finally, in Advanced Mining Group, supra at 503, the
employer had previously selected the employee to serve
as a temporary supervisor, but refused to do so again
after she participated in protected concerted conduct.
Thus, in all three of the above-cited cases, the evidence
showed that the employee in question would certainly
have been selected for the supervisory position if not for
the protected conduct. We are simply not convinced that
such a showing has been made in this case.
Our colleague also argues that the finding of a viola-
tion means that, but for the discrimination, the Respon-
dent would have promoted Lewallen to a supervisory
position. That argument confuses the sufficiency of the
evidence necessary to find the violation–preponderance
of the evidence-with the evidentiary showing that the
Board has required, as explained above, to impose as a
remedy the promotion of an employee to a managerial
position. As to the violation here, the Respondent did
not rebut the General Counsel’s case by showing that it
would not have promoted Lewallen even if he had not
engaged in union activity. But this is different from a
clear affirmative showing that the Respondent planned to
promote that employee and did not carry through with
this plan because of the employee’s protected activity.
Where, as here, we are intruding into an important aspect
GEORGIA POWER CO. 3
of managerial prerogative, we would not allow such in-
trusion, absent such a clear showing.
We recognize, however, that the Respondent must be
held accountable for its unlawful conduct and that we
must fashion a remedy that will erase, as far as practica-
ble, the effects of the Respondent’s unlawful denial of
the promotion to Lewallen. In fashioning our remedy in
this case, we are guided in part by the remedy we ordered
in Ford Motor Co., 266 NLRB 633 (1983), pursuant to
the court’s remand. In Ford Motor, the Board accepted
the court’s remand as the law of the case and ordered the
employer to reconsider the affected employees for su-
pervisory positions, employing “every reasonable pre-
caution to ensure that such reconsideration is untainted
by the events precipitating th[e] proceeding.” Id. at 633.
In the exercise of our remedial authority, we find this to
be an appropriate remedy in the instant case. However,
we believe that this remedy is insufficient by itself to
fully remedy the unfair labor practices in this case.
Therefore, in order to encourage the Respondent to fully
and fairly reconsider Lewallen for the supervisory posi-
tion and to place Lewallen in a position reasonably simi-
lar to that which he would have been in had the discrimi-
nation against him not occurred, we find it appropriate to
also order the Respondent to make Lewallen whole for
any loss of pay and benefits he sustained as a result of
the unlawful denial of the promotion.6 Accordingly, we
shall order the Respondent to pay Lewallen backpay at
the rate Lewallen would have received if he had been
selected for the supervisory position, and continue to pay
him at the supervisory rate until such time as he is pro-
moted to a supervisory position.
This remedy is designed to effectuate the policies of
the Act by effectively erasing some of the adverse effects
of the discriminatorily motivated denial of the promotion
to Lewallen,7 and by encouraging the Respondent to ex-
ercise its managerial promotion responsibilities in a way
that is not prejudicial to Lewallen.
In sum, a monetary remedy provides relief for the dis-
criminatee, without intruding into an area of managerial
prerogative. Further, it provides an incentive, but not an

6 The Board has ordered make whole remedies in other cases in
which employees were unlawfully denied promotions to supervisory
positions. See, e.g., St. Anne’s Hospital, 245 NLRB 1009 (1979), enfd.
648 F.2d 67 (1st Cir. 1981); Bell Aircraft Corp., 101 NLRB 132, 135
(1952), enfd. 206 F.2d 235 (2d Cir. 1953).
7 We recognize, as pointed out by the dissent, that this remedy does
not fully remedy all of the adverse effects of the unlawful denial of the
promotion. However, it does effectively remedy the financial impact of
the unfair labor practices.
obligation, to promote Lewallen into the supervisory
position.8
AMENDED REMEDY
Having found that the Respondent violated Section
8(a)(3) and (1) of the Act by failing and refusing to pro-
mote employee Bobby Lewallen to a supervisory posi-
tion, we shall order that the Respondent cease and desist
therefrom and take certain actions designed to effectuate
the policies of the Act. We shall order the Respondent to
reconsider Lewallen for a supervisory position and to
employ every reasonable precaution to ensure that such
reconsideration is not tainted by the events that precipi-
tated this proceeding. We shall also order that the Re-
spondent make Lewallen whole for any loss of earnings
and other benefits he suffered as a result of the Respon-
dent’s unlawful discrimination, and that backpay and
future pay be calculated at the supervisory rate until such
time that Lewallen is hired into a supervisory position.
Backpay and future pay shall be computed as prescribed
in Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971).9 Interest shall be com-
puted as provided in New Horizons for the Retarded, 283
NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Georgia Power Company, Gainesville,
Georgia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to promote its employees to
supervisory positions because they engage in protected
concerted activities under the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reconsider Bobby Lewallen for a promotion to the
supervisory position he was unlawfully denied, or if that
position no longer exists, to a substantially equivalent
position, and employ every reasonable precaution to en-
8 See Transmarine Navigation Corp., 170 NLRB 389 (1968), where
the Board grants a monetary remedy as an incentive for the employer to
bargain in good faith on the effects of a managerial decision.
9 Ogle Protection applies to remedy a violation of the Act that does
not involve cessation or denial of employment. “To the extent . . . that
[an employer’s] unlawful conduct resulted in employees receiving less
than they would have been entitled to for their work had the Act not
been violated, those losses are properly remedied under the Ogle Pro-
tection formula.” CAB Associates, 340 NLRB No. 171, slip op. at 3
(2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4
sure that such reconsideration is untainted by the events
precipitating this proceeding.
(b) Make Bobby Lewallen whole for any loss of earn-
ings and other benefits suffered as a result of the unlaw-
ful discrimination against him in the manner set forth in
the Amended Remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful failure and
refusal to promote Bobby Lewallen, and within 3 days
thereafter, notify him in writing that this has been done
and that this unlawful action will not be used against him
in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amounts of backpay and
future pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Gainesville, Georgia copies of the attached
notice marked “Appendix.”10 Copies of the notice, on
forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since May 7, 2001.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

10 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Dated, Washington, D.C. April 7, 2004

Robert J. Battista, Chairman

Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

MEMBER WALSH, dissenting in part.
I agree with my colleagues and the judge that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
failing and refusing to promote employee Bobby Le-
wallen to a supervisory position because he engaged in
protected concerted activity. My colleagues, however,
refuse to order the Respondent to offer a promotion to
Lewallen as a remedy for its unfair labor practice. In
doing so, my colleagues have unnecessarily denied Le-
wallen a permissible and effective remedy, and have sub-
stituted in its place a punitive one. For the reasons set
forth below, I dissent.
As recognized by my colleagues, Section 10(c) of the
Act grants the Board broad discretionary authority to
devise remedies that effectuate the policies of the Act.
“The underlying policy of Section 10(c) of the Act . . . is
‘a restoration of the situation, as nearly as possible, to
that which would have obtained but for the illegal dis-
crimination.’” Trustees of Boston University, 224 NLRB
1385 (1976), enfd. 548 F.2d 391 (1st Cir. 1977), quoting
Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941).
The Board has exercised its broad remedial authority in
cases involving discriminatory denials of promotions to
supervisory positions by ordering employers to offer the
affected employees’ promotion to the supervisory posi-
tions they were unlawfully denied. For example, in
Richboro Community Mental Health Council, 242 NLRB
1267, 1268 (1979), a case remarkably similar to the in-
stant case, the Board found that an employer unlawfully
denied an employee a promotion to a supervisory posi-
tion because the employee engaged in protected activity.
In remedying the violation, the Board ordered the re-
spondent to offer to promote the employee to a supervi-
sory associate clinical coordinator position, with backpay
to make him whole for any losses he may have suffered
by reason of the unlawful denial of the promotion.
Similarly, in Little Lake Industries, 233 NLRB 1049
(1977), the Board ordered an employer to offer an em-
ployee a promotion to the supervisory position of fore-
man in order to remedy its discriminatorily motivated
denial of that promotion to the employee. See also, Ad-
vanced Mining Group, 260 NLRB 486, 503, 515 (1982),
enfd. 701 F.2d 221 (D.C. Cir. 1983) (employer ordered
GEORGIA POWER CO. 5
to offer temporary supervisor position to employee who
was unlawfully denied a promotion).1
My colleagues agree that the Board has the authority to
order an employer to offer a promotion to an employee,2
and they acknowledge that the Board has done so in the
past. However, they decline to order such a remedy in
this case. By doing so, they are sub silencio overruling
Board precedent that granted this remedy, and they are
unnecessarily limiting the Board’s remedial authority in
a manner not required by the Act.
Following the reasoning of Ford Motor Co., supra, my
colleagues decline to order the Respondent to offer Le-
wallen a promotion in this case because they believe that
by ordering such a remedy the Board would be imper-
missibly assuming the managerial responsibility of se-
lecting an employer’s supervisory workforce. My col-
leagues’ concern about the Board’s involvement in the
supervisory selection process in this case is unfounded.
Here, the judge found, and my colleagues and I agree,
that the Respondent failed to prove that it would not have
promoted Lewallen to the supervisory position in the
absence of his protected concerted activity. By rejecting
the Respondent’s defense that Lewallen would not have
been selected for the supervisory position for legitimate
business reasons, we are effectively finding that the Re-
spondent would have selected Lewallen absent his pro-
tected activity. Thus, ordering the Respondent to do that
which it would have done had it been acting lawfully
would not be usurping the prerogative of management to

1 My colleagues find Richboro, Little Lake Industries, and Advanced
Mining Group distinguishable in part because there is no indication that
the employer excepted to the remedy in those cases. My colleagues’
reliance on the absence of remedial exceptions is misplaced. First, in
Richboro, the remedial issue was squarely before the Board because the
Board itself devised the remedy for the unlawful failure to promote.
(Pursuant to exceptions filed by the General Counsel, the Board re-
versed the judge’s dismissal of this allegation.) Second, even if, as
speculated by my colleagues, there were no exceptions to the judges’
recommended remedies in Little Lake Industries and Advanced Mining
Group, the remedial issues would still have been before the Board for
consideration. “[M]atters of remedy are traditionally within the
Board’s province, and may be addressed by the Board sua sponte.”
R.J.E. Leasing Corp., 262 NLRB 373 fn. 1 (1982). The fact that there
was no separate discussion of the remedial issues by the Board in those
cases does not mean that the appropriateness of the judges’ recom-
mended remedies was not considered by the Board.
2 The Board’s remedial authority to require an employer to promote
an employee to a supervisory position has been upheld by the courts in
Oil Workers v. NLRB, 547 F.2d 575, 588–591 (D.C. Cir. 1976), cert.
denied sub nom. Angle v. NLRB, 431 U.S. 966 (1977), relying in part
on NLRB v. Bell Aircraft, 206 F.2d 235 (2d Cir. 1953). My colleagues
properly refuse to follow the court’s per curiam (and conclusory) opin-
ion in NLRB v. Ford Motor Co., 683 F.2d 156 (6th Cir. 1982), to the
extent that it questions the Board’s authority to order a promotion to a
supervisory position.
select its supervisory workforce.3 Because the Respon-
dent’s selection committee determined that Lewallen is
qualified for the position, we would not be ordering the
Respondent to promote an unqualified individual to the
supervisory ranks or be substituting our business judg-
ment for that of the Respondent.4 For these reasons,
there is no impediment to the remedy recommended by
the judge.5
In place of the judge’s reasonable and appropriate
remedy, my colleagues have fashioned one that is both
illogical and punitive. Specifically, my colleagues have
ordered the Respondent to reconsider Lewallen for the
supervisory position and to pay Lewallen at the supervi-
sory rate until he is promoted. If the Respondent were to
reconsider Lewallen in a nondiscriminatory manner and
were lawfully to decline to promote him, it would never-
theless still be required to pay him as if he were a super-
visor. Thus, my colleagues are effectively imposing a
penalty on the Respondent, i.e., ordering it to pay in per-
petuity for a job not being performed.6
My colleagues assert that this case is different from the
cases in which we have ordered full promotions to su-
pervisory positions, because the General Counsel has not
proven that the Lewallen “certainly” would have been
selected as a supervisor. By finding the 8(a)(1) and (3)
violation, however, we are finding that the General
Counsel proved that Lewallen was denied the position
because of his union and protected concerted activities. I
am aware of no other discrimination cases where the
Board, having found the violation, has looked at the rela-
tive weight of the General Counsel’s evidence in fashion-
ing the remedy for the discrimination. By requiring this
additional showing, my colleagues are in effect watering
down the remedy and making it a much less effective
deterrent for the discriminatory conduct, and I am not
3 The Respondent’s selection committee determined that Lewallen
was one of the top two candidates for the supervisory position. Le-
wallen was not selected because he engaged in protected concerted
activity, not because he was unqualified to be a supervisor.
4 Cf. Lancaster Fairfield Community Hospital, 311 NLRB 401, 403
(1993) (employer not ordered to offer promotion to employee where
employer proved that she would not have been selected for the supervi-
sory job even absent the discrimination against her).
5 See Oil Workers v. NLRB, supra, 547 F.2d at 588–591, in which
the court found that an unlawfully discharged employee should have
been reinstated to a supervisory position, noting that the employer’s
claim that the employee would not have been promoted to that position
was based on reasons that had previously been rejected by the Board as
pretextual in the underlying discrimination cases.
6 In addition to being punitive, my colleagues’ remedy is also not
fully effective. Although it may be effective monetarily to place Le-
wallen in the financial position he would have been in had the discrimi-
nation not occurred, it fails to remedy the damage to Lewallen’s career
progression caused by the discrimination against him.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6
willing to join them in weakening our remedies for
unlawful discrimination.
In conclusion, this case should be decided by applying
the fundamental remedial principle that Board orders
should “restor[e] . . . the situation, as nearly as possible,
to that which would have obtained but for the illegal dis-
crimination.” Phelps Dodge, supra, 313 U.S. at 194.
Lewallen would have been promoted “but for the illegal
discrimination.” Therefore, to “restor[e] . . . the situa-
tion,” the Board should order the Respondent to offer
Lewallen the promotion he was unlawfully denied. Here,
where the Respondent itself has determined that Le-
wallen was qualified for the promotion, there is no legal
impediment to such a remedy. For these reasons, the
judge correctly ordered the Respondent to offer Lewallen
a promotion to a supervisory position, and to make him
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against him.
Dated, Washington, D.C. April 7, 2004

Dennis P. Walsh, Member

NATIONAL LABOR RELATIONS BOARD

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.

WE WILL NOT fail and refuse to promote our employ-
ees to supervisory positions because they engage in pro-
tected concerted activities under the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL reconsider Bobby Lewallen for a promotion
to the supervisory position he was unlawfully denied, or
if that position no longer exists, to a substantially equiva-
lent position, and WE WILL employ every reasonable pre-
caution to ensure that such reconsideration is untainted
by the events precipitating this proceeding.
WE WILL make Bobby Lewallen whole for any loss of
earnings and other benefits suffered as a result of the
unlawful discrimination against him, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful failure and refusal to promote Bobby Lewallen, and
WE WILL, within 3 days thereafter notify him in writing
that this has been done and that our unlawful conduct
will not be used against him in any way.
GEORGIA POWER COMPANY
Frank F. Rox Jr., Esq., for the General Counsel.
Laura H. Kriteman, Robert C. Stevens, and Lisa J. Harlander,
Esqs., for the Respondent.
Kristine E. Orr, Esq., for the Charging Party.
BENCH DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me in Atlanta, Georgia, on November
21, 2002, and I delivered a Bench Decision on November 22,
2002.
I found Respondent, Georgia Power Company, violated Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act (the
Act) by failing and refusing to promote Bobby Lewallen to a
supervisory position because of his engagement in protected
concerted activities under the Act.
My Bench Decision as corrected and amended with the issu-
ance of this Decision in final form was delivered in accordance
with the authority of Section 102.35 (a)(1) of the National La-
bor Relations Board’s Rules and Regulations and in accordance
with Section 102.45 thereof, I certify the accuracy of, and at-
tach hereto as “Appendix A” of my Bench Decision, the perti-
nent part of the trial transcript as corrected and amended, pages
165 to 177.
Attached as “Appendix B” are the corrections as made in the
Bench Decision. [Omitted from publication.]
CONCLUSION OF LAW
Based on the entire record at the hearing, I found that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. The Respon-
dent, Georgia Power Company, violated Section 8(a)(1) and (3)
of the Act by failing and refusing to promote its employee
Bobby Lewallen to a supervisory position for the reasons stated
at the hearing. These violations have affected and unless per-
manently enjoined will continue to affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
I find Respondent should be ordered to cease and desist from
the foregoing violations of the Act and should be ordered to
instate Bobby Lewallen to the supervisory position which he
was unlawfully denied or to a substantially equivalent position
GEORGIA POWER CO. 7
if this position no longer exists. Lewallen shall be made whole
for any loss of pay and benefits he may have sustained as a
result of the unlawful denial of the promotion. Said backpay
shall be computed in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as computed in accor-
dance with New Horizons for the Retarded, 283 NLRB 1173
(1987), at the “short term Federal rate” for underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. Section
6621.
On these findings of fact and conclusion of law and on the
entire record, I issue the following recommended1
ORDER
The Respondent, Georgia Power Company, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to promote its employees to supervi-
sory positions because of their engagement in protected con-
certed activities under the Act.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative actions necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order offer to instate
Bobby Lewallen to the supervisory position to which he was
unlawfully denied promotion or if that job no longer exists, to a
substantially equivalent position without prejudice to his sen-
iority or any other rights or privileges previously enjoyed.
(b) Make Bobby Lewallen whole for any loss of earnings
and other benefits suffered as a result of the unlawful discrimi-
nation against him in the manner set forth in “the Remedy”
section of this Decision, with interest.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful failure and refusal to
promote Bobby Lewallen and within 3 days notify him in writ-
ing that this has been done and that this unlawful action will not
be used against him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director of Region 10 may allow for
good cause shown, provide at a reasonable place designated by
the Board or its agents, all payroll records, social security pay-
ment records, timecards, personnel records and reports, and all
other records, including an electronic copy of such records if
stored in electronic form, necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its At-
lanta, Georgia location copies of the attached notice marked
“Appendix C.2” Copies of the notice, on forms provided by the

1 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.
2 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 Judg-
Regional Director, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respon-
dent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since May 2001.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated at Washington D. C. December 9, 2002
165
APPENDIX A
P R O C E E D I N G S
November 22, 2002 10:00 A.M.
JUDGE CULLEN: All right. This is a Bench Decision that
I’m issuing in the case of—of Georgia Power Company and
Bobby Lewallen, an individual, Case No. 10–CA–33301.
STATEMENT OF THE CASE:
Lawrence W. Cullen, is the Administrative Law Judge issu-
ing the Decision. This case was heard before me on November
21, 2002, in Atlanta, Georgia. After both parties have rested
their case and upon review of the testimony and Exhibits re-
ceived at the hearing and the trial Briefs and closing arguments
submitted by the parties, I issue the following Bench Decision.
The Complaint alleges that Georgia Power Company, Re-
spondent herein, and Georgia Power Company admits, and I
find the charge in this case was filed by Bobby Lewallen, an
individual, on September 24, 2001. I find that at all times ma-
terial herein, Respondent Georgia Power Company, Respon-
dent or the company, has been a Georgia corporation with an
office and place of business located in Gainesville, Georgia,
otherwise known as Respondent’s facility; and that it has been
engaged in the business of generating and distributing power
utility service, that during the preceding twelve month period,
Respondent in conducting its business operations, received
revenues in
166
excess of Two Hundred and Fifty Thousand dollars ($250,000),
derived from producing electrical power service in Georgia to
employers, which enterprises, in turn, during the same period,
purchased and received goods valued in excess of Fifty Thou-
sand Dollars ($50,000.00) from suppliers outside the state of
Georgia. That at all material times Respondent has been an
employer engaged in commerce within the meaning of Section

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8
2(2), (6) and (7), of the National Labor Relations Act; and that
the International Brotherhood of Electrical Workers, Local 84
AFL–CIO–CLC, is and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of the
Act.
It is further alleged and admitted at the hearing, that Wendall
Smith was a Distribution Manager; Jimmy Sykes, Jr., was a
Region Distribution Manager; Linda S. Gantt was an Assistant
to Manager Northeast Regional Management, and Nancy J.
Huddleston was an Area Manager I. The Complaint alleges
that the foregoing individuals were at all material times super-
visors of Respondent within the meaning of Section 2(11) of
the Act, and agents of Respondent within the meaning of Sec-
tion 213 of the Act. Respondent admitted this at the hearing,
and I so find.
The Complaint alleges that on or about May 7, 2001, Re-
spondent failed to promote its employee, Bobby Lewallen, to
the position of Distribution Supervisor because he
167
engaged in protected concerted activities for employees’ mutual
aid and protection, and in order to discourage other employees
from engaging in Union and other concerted activities; and that
by this conduct, Respondent has been interfering, restraining,
and coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act, in violation of Section 8(a)(1) of
the Act, and has been discriminating in regard to the hire or
tenure or terms and conditions of employment of its employees,
thereby discouraging membership in a labor organization in
violation of Section 8(a)(1) and (3) of the Act.
Lewallen has been employed by Respondent since 1975, and
has been a member of the Union for over twenty-five years.
The Respondent and the Union commenced negotiations over
post-retirement benefits. In an effort to bolster its bargaining
position, the Union sent a letter to its members in early March,
2001, urging them to boycott all company sponsored events
until the post-retirement issues were resolved, which letter
stated in part “Because of this battle for your future security,
we are asking that you stop supporting any and all company
sponsored charitable events and activities and to boycott all
committees or anything of a volunteer nature. Examples:
safety committees, blood drives, and United Way, etc. Your
Union leadership is asking you to join us
168
in this battle to defend our retirement benefits.”
In early March, 2001, Distribution Manager, Wendall Smith,
held a meeting with his operating employees, attended by ap-
proximately twenty-five employees. This meeting was held in
his district and he inquired whether the employees would par-
ticipate in a Family Fun Day sponsored by the company. None
of the twenty-five employees at the meeting replied verbally to
the inquiry. Smith told them he needed to know and urged
them to let him know. At that point, Bobby Lewallen spoke up
and said that the employees were not responding because of the
Union’s letter asking its members not to participate in com-
pany-sponsored activities. Smith then told the employees to let
him know and concluded the meeting.
In late March, 2001, Lewallen and about twelve other
employees, applied for a Distribution Supervisory position in
Gainesville, Georgia. Following the elimination from consid-
eration of certain of the candidates who were not qualified for
the position, there were nine remaining candidates who were
interviewed by a selection committee of six Georgia Power
management employees, including Smith. Lewallen received
the highest score in the interview portion of the selection proc-
ess, with a score of 175.5. Edwin Cash received the second
highest score of 162.
169
Prior to the interviews, Smith had instructed the committee
to examine other factors, including work experience, perform-
ance, leadership, qualities and overall impression of the candi-
dates. After considering all of these qualities, five of the six
committee members placed Cash and Lewallen on their top
three list. The committee determined that Lewallen and Cash
ultimately were the top two candidates. After further discus-
sion, a straw poll showed the committee was equally divided
between Lewallen and Cash. As the committee was evenly
divided, it fell to Smith to make the final decision.
Smith testified he evaluated the strengths and weaknesses of
the two candidates in relying on his personal observations of
the candidates during his eighteen months as Area Manager in
the Gainesville office, where both of the candidates worked.
Smith testified he considered other factors in addition to ex-
perience, including communication skills, adaptability and
resistance to change; and the Company’s concept of the “fore-
man of tomorrow”, and demonstrated support for management
policy. Smith testified he found that Cash’s experience as a
troubleman was significant as he worked without supervision,
made numerous decisions, interacted with customers, and Cash
had good communication skills. Cash had been a Union stew-
ard and had represented
170
the Union and Union employees in dealings with Smith that, in
so doing, had demonstrated superior interpersonal communica-
tion skills.
In contrast, Smith had noted that Lewallen had poor commu-
nication skills in some areas. Smith offered the promotion to
Cash, who accepted it on May the 7th, 2001. Later on that day,
Smith talked to Lewallen and told Lewallen that he had not
been chosen for the promotion as a result of his remarks at the
meeting concerning Family Fun Day.
Lewallen testified that at that meeting Smith told him that he
had made the decision on the Distribution Supervisor position,
that it had been a hard decision, and that he had awarded the
job to someone else. Lewallen asked why. Smith said that
Lewallen’s remark concerning the Union letter urging the boy-
cotting of company sponsored events “pissed me off and that is
the reason you didn’t get the job.” Lewallen testified that at
that point, he told Smith he needed a day off and got up to
leave. Smith did not tell him that he had any other reason for
awarding the promotion to someone else. With Smith’s per-
mission, he took Tuesday off.
GEORGIA POWER CO. 9
On Wednesday, Smith came by Lewallen the first thing in
the morning and asked to meet with him. Lewallen said okay,
if I can have a Union brother with me. Smith agreed and Le-
wallen chose Jimmy Stewart to go with him to the
171
meeting. Lewallen testified that at the meeting, Smith said he
had better not hear Lewallen ask anyone to work unsafe and his
production better not slow down, or he would have to make a
management decision. Stevens objected to these comments on
Lewallen’s behalf. Lewallen called Linda Gantt, the assistant
to the Manager of the northeast region, who had originally fa-
cilitated the interview process and rating process for this job;
and had been present at the meeting in a nonvoting capacity.
She told Lewallen that Smith should not have made statements,
and she set up a group meeting with Region Distribution Man-
ager, Jimmy Sykes, Jr., Smith, Gantt, and Lewallen; which
meeting was taped by Lewallen with management’s permis-
sion.
In that meeting, Lewallen recounted that in the May 7th meet-
ing, Smith told him the promotion selection had been one of the
hardest decisions he had ever made in his life and he had wres-
tled with it all weekend. Smith then said “Do you remember
the day we were talking about Fun Day in the back?” Lewallen
replied yes, I do. Smith then asked again, do you remember the
comment you made? Lewallen said, yes, sir, I do. Lewallen
said, and the comment was in regard to a letter written by the
Union asking us not to participate in any company activities – if
you remember the letter
172
came out.
Lewallen recounted also at the taped interview, that he had
said at the Fun Day meeting, Wendall, probably why nobody is
speaking up is because of the letter that we received from the
Union asking us not to participate in any activities. He re-
counted further that Smith said, on May 7th, I remember that
remark you made and Bobby, that pissed me off and I hadn’t
forgotten and that’s the reason you are not getting the job.
On the tape, Smith denies that this statement is correct. He
also contends and did so at the hearing, that he had wanted to
discuss all the reasons for his decision not to promote Lewallen
that day, but was unable to do so as Lewallen got up to leave.
At the hearing he introduced some notes that he contends con-
tained areas of discussion he had intended to discuss with Le-
wallen as reasons he had not been given the promotion; such as
Lewallen’s alleged communication skills. Smith also stated in
the taped conversation “and with your comment that day and
your position in this organization, all you did was stifle twenty-
five people. Now that is simply one example and one thing that
went through my mind when you did not get that job.”
At the hearing, Smith admitted that he had made the com-
ment attributed to him by Lewallen, but contends that
173
this was only one example that he had wanted to discuss with
Lewallen as to reasons he did not promote him.
I find that the General Counsel has made a prima fascia case
of violations of Section 8A1, and 3, of the Act by Respondent’s
refusal to promote Lewallen because of his engagement in pro-
tected concerted activities by his remarks at the meeting con-
cerning Family Fun Day.
I find that the employees were not participating in the Family
Fun Day in response to a Union letter urging them to decline to
participate in voluntary company-sponsored events in support
of the Union’s position at the bargaining table, concerning ne-
gotiations involving post-retirement benefits. This clearly was
a position which was supportive of the Union and its bargaining
strategy on behalf of the employees. The voicing of this posi-
tion by Lewallen, which Smith testified he regarded as interfer-
ence with his meeting, clearly placed Lewallen at odds with the
company’s position and supportive of the Union’s attempt to
strengthen its bargaining position regarding post-retirement
benefits by boycotting participation in voluntary company-
sponsored events.
Moreover, the statement by Smith to Lewallen that he had
not been awarded the supervisory position because of his re-
marks at the meeting was a clear admission by Smith which
demonstrated the real reason for the failure to
174
promote Lewallen.
With respect to the issue of concerted activity, I find that
Lewallen was engaged in protected concerted activities when
he made his remark, which was clearly supportive of the boy-
cott of company activities as borne out by Smith’s displeasure
with the remark. The Board has upheld as protected concerted
activities under the Act, the conduct of a single employee seek-
ing to further employees objectives for improvement or protec-
tion of their wages, hours, and terms and conditions of em-
ployment. I cite therefore Guardian Industries Corp., 319
N.L.R.B., 542, 1995, Wilson Trophy Company, v N.L.R.B., 989
Fed2d 1502, 8th Circuit, 1993, Circle K Corporation, 305
N.L.R.B. 932, 1991, In the Circle K case, the Board held that a
stated intent to organize a Union and the issuance of a letter
seeking to initiate group action by a single employee consti-
tuted protected concerted activity. Citing in support of that
case, Mushroom Transportation Company v. N.L.R.B., 330
Fed2d, 683, 685, (Third Circuit, 1964), wherein the Court de-
fined concerted activity as a conversation—“that a conversation
may constitute a concerted activity, although it involves only a
speaker and a listener, when it was engaged in with the object
of initiating or preparing for group action or had some
175
relation to group action in the interest of the employees.”
In the case before me, it is clear that Lewallen’s comments
were part and partial of the Union’s effort to bolster its position
at the bargaining table by boycotting extracurricular activities
such as the Fun Day in question. Thus as noted, this incurred
the animus of Respondent’s Agent, Wendall Smith, who was
attempting to promote the Fun Day. I credit the testimony of
Lewallen and find that Smith did make the remarks attributed
to him as the reason for not promoting Lewallen. I find that
Smith’s testimony concerning other reasons for Lewallen and
the note itself are a post-hoc effort to counter the clear admis-
sion of Smith that he did not promote Lewallen because of his
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10
remarks at the Fun Day meeting. In this regard, I thus find that
the General Counsel has established a prima facia case of viola-
tions of Section 8A1 and 3 of the Act.
Under Wright Line, a division of Wright Line, Inc., 251
N.L.R.B. 1083, 1980, Enforced 662, Fed 2d 899, First Circuit,
1981, cert denied 405, U.S. 989, (1982), the General Counsel
has the initial burden to establish that the employees engaged in
protected concerted activities, number one. Number two, that
the Respondent had knowledge or at least suspicion of the em-
ployees’ protected
176
activities. Three, the employer took an adverse action against
the employees. Four, a nexus or a link between the protected
concerted activities and the adverse action are the underlying
motive. Once these four elements have been established, the
burden shifts to the Respondent to prove by a preponderance of
the evidence, that it took the adverse action for a legitimate
nondiscriminatory business reason.
In the instant case, the Respondent clearly had knowledge of
Lewallen’s concerted activity and as demonstrated by the
comments made by Smith, the Respondent through Smith, had
animus against Lewallen for his participation in the concerted
activity. The Respondent took adverse action against Lewallen
by denying him the promotion and the protected activity was a
motivating factor in this action; thus, a nexus has been shown
between the protected activity and the adverse employment
action.
I further find that Respondent has failed to demonstrate by
the preponderance of the evidence that it would not have pro-
moted Lewallen in the absence of the unlawful motive. The
undisputed evidence established that Respondent used a sophis-
ticated interview and rating process that resulted in a tie score
between Lewallen and
177
Edwin Cash, who was ultimately awarded the job; however,
the ultimate decision was left up to Smith who admittedly
failed to promote Lewallen because of his protected activities.
I thus find that the Respondent has failed to show by the pre-
ponderance of the evidence that it would not have promoted
Lewallen even in the absence of the unlawful motive.
I will prepare a remedy and recommended Order and notice
upon receipt of the transcript, and it will provide that Lewallen
be awarded the promotion and awarded back pay, with interest;
and I will also prepare a Notice in this effect. Is there anything
further before I close the record in this case?
MR. ROX: Nothing from the General Counsel.
MS. HARLANDER: Nothing, Your Honor.
JUDGE CULLEN: All right. Case is now closed.
(Whereupon, the hearing in this matter was closed at
10:30 a.m.)
APPENDIX C
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
Federal labor law and has ordered us to post and obey this no-
tice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activities.

WE WILL NOT fail and refuse to promote you to supervisory
positions because of your engagement in protected concerted
activities under the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of rights guaranteed you by
Section 7 of the Act.
WE WILL offer Bobby Lewallen promotion to the supervisory
position which he was unlawfully denied, or if that job no
longer exists to a substantially equivalent position without
prejudice to his seniority or other rights or privileges previously
enjoyed.
WE WILL make Bobby Lewallen whole for any loss of wages
and benefits he may have sustained as a result of the unlawful
discrimination, with interest.
WE WILL remove from our files all references to the unlawful
discrimination against Bobby Lewallen and will inform him in
writing that we have done so and that we will not use the
unlawful failure and refusal to promote him against him in any
way.

GEORGIA POWER COMPANY