Guernsey-Muskingum Electric Cooperative, Inc.

National Labor Relations Board - Board Decisions

Aug 20, 1959

124 N.L.R.B. 618 (N.L.R.B. 1959)

618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Guernsey-Muskingum Electric Cooperative , Inc. and James R.
Boyer, Charging Party. Case No. 8-CA-1510. August 20, 1959
DECISION AND ORDER
On March 30, 1959, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Jenkins and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial. error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Guernsey-Muskingum Electric
1 In view of the numerous discussions among the three members of James Boyer ' s spray
crew concerning their common complaint over the hiring of Larry Miller as their foreman,
their common decision as a result of these discussions that each of them would take this
common complaint to Foster Scott, a member of Respondent's board of trustees, and their
resulting presentation of this common grievance to Scott, we find, as the Trial Examiner
did, that , despite its informality , such presentation of a grievance by James Boyer as a
common griever constituted concerted activity protected by the Act. See The Ohio Oil
Company, 92 NLRB 1597; N.L.R.B. v. Phoenix Mutual Life Insurance Company, 167 F. 2d
983 (C.A. 7), cert. denied 335 U.S. 845; Hearst Publishing Company, Inc., 113 NLRB
384, 386-388; Wood Parts , Inc., 101 NLRB 445, 451. It is also significant , as found
further by the Trial Examiner, that Respondent General Manager McMormick, the in-
dividual who later discharged Boyer because of his presentation of such grievance, made
statements at an interim June 16 meeting which clearly show that he viewed the em-
ployees' presentation of their grievance with respect to Miller as a concerted act. More-
over, it is now well settled that employees have a right to protest by concerted action
the appointment of a supervisor. See N.L.R.B. v. Phoenix Mutual Life Insurance Com-
pany, supra ; Hearst Publishing Company , Inc., supra ; Wood Parts , Inc., supra ; Cleaver-
Brooks Mfg. Corporation, 120 NLRB 1135.
Although not alleged in the complaint, the Trial Examiner found that Boyer's discharge
was a violation of Section 8(a) (3), as well as a violation of Section 8(a) (1) as alleged
in the complaint . In the absence of any exception to this enlargement of the complaint,
we adopt such finding , pro forma . In any event , we find further that a reinstatement and
back -pay order is appropriate and necessary to remedy the unfair labor practices found
herein, whether Boyer's discharge be deemed a violation of Section 8(a) (1) or Sec-
tion 8 ( a) (3). See Ace Handle Corporation , 100 NLRB 1279.
124 NLRB No. 71.
GUERNSEY-MUSKINGUM ELECTRIC COOPERATIVE, INC. 619
Cooperative, Inc., New Concord, Ohio, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging its employees from engaging in concerted activi-
ties for the purposes of collective bargaining or other mutual aid or
protection by discharging any of their employees because of their con-
certed activities or in any other manner discriminating in regard to
their hire or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
bargain collectively through representatives of their own choosing, or
to engage in concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all
such activities except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a.) Offer to James Richard (Dick) Boyer immediate and full re-
instatement to his former or substantially equivalent position, with-
out prejudice to his seniority or other rights and privileges, and make
him whole, in the manner set forth in the section of the Intermediate
Report entitled "The Remedy," for any loss of pay he may have suf-
fered by reason of the Respondent's discrimination against him.
(b) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of back pay due
and the rights of employment under this Order.
(c) Post in conspicuous places in the Respondent's plant in New
Concord, Ohio, including all places where notices to the employees
are customarily posted, copies of the notice attached to the Inter-
mediate Report marked "Appendix A."' Copies of said notice, to be
furnished by the Regional Director for the Eighth Region, shall, upon
being duly signed by the Respondent's representative, be posted by it
as aforesaid, immediately upon receipt thereof, and maintained for
at least 60 consecutive days thereafter. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Eighth Region in writing,
within 10 days from the date of this Order, as to what steps the
Respondent has taken to comply herewith.
2 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner " the words "A Decision and Order ." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be further sub-
stituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a
Decree of the United States Court of Appeals , Enforcing an Order."
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed on June 23, 1958, by James Richard Boyer, an individual,
the General Counsel of the National Labor Relations Board, herein called the
General Counsel 1 and the Board, respectively, by the Board's Regional Director for
the Eighth Region (Cleveland, Ohio), issued its complaint dated November 25, 1958,
against Guernsey-Muskingum Electric Cooperative, Inc., hereinafter called the Re-
spondent , alleging that the Respondent had engaged in and was engaging in unfair
labor practices within the meaning of Section 8(a)(1) and (3) of the Labor
Management Relations Act, 1947, as amended, 61 Stat. 136, herein called the Act.
Copies of the complaint, the charge, and notice of hearing thereon were duly served
upon the Respondent and the individual.
The Respondent duly filed its answer wherein it admitted certain facts but denied
the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before the Trial Examiner on January 27
and 28, 1959, at Cambridge, Ohio. The General Counsel and the Respondent were
represented at the hearing by counsel. Full opportunity to be heard, to examine and
cross-examine witnesses , and to introduce evidence bearing upon the issues was
afforded all parties. The parties were advised of their right to argue orally at the
hearing and to file briefs with the Trial Examiner thereafter. The General Counsel
argued orally at the conclusion of the hearing, and a brief has been received from
the Respondent on March 2, 1959.
Upon the entire record in the case and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Guernsey-Muskingum Electric Cooperative, Inc., is and has been at all times
material herein an Ohio corporation, with its principal office at New Concord, Ohio,
at which place it is engaged in the production, sale, and distribution of electrical
energy. Respondent corporation is a public utility, and in the year 1958 its gross
volume of business was in excess of $250,000.
The Respondent admits, and the Trial Examiner finds, that the Respondent is
engaged in commerce within the meaning of the Act.
H. THE UNFAIR LABOR PRACTICES
A. The facts
Factually, this is a very simple case as the parties are in essential agreement as to
the facts herein. The only real points of disagreement between the parties are as to
what motivated Lyle McCormick, Respondent's general manager, to discharge em-
ployee James Richard (Dick) Boyer on June 18, 1958, and as to whether Dick
Boyer had been engaging in "concerted activities" prior thereto.
During the summers the Respondent utilizes its two 3-man right-of-way crews to
spray underneath its 1,800 miles of electric power lines in order to destroy the
undergrowth.
In 1958 the Respondent began its spraying on June 2. At that time one crew
consisted of Dick Boyer, truckdriver, with his father, Harry (Bill) Boyer, and
Charles Vessels, groundmen, while the other crew was composed of Raymond Muse,
truckdriver, with Cy Wolfe, groundman. At that time the regular foreman over
these two crews was Sam Miller who was then ill and had been away from duty for
a period of about 10 weeks. It was then unknown when, if ever, he would be able
to return.
In the light of Sam Miller's physical condition, sometime during the month of
May Lyle McCormick offered the position of foreman of these two crews to Larry
Miller, who was not related to Sam Miller and who had never before worked for
the Respondent as his regular occupation was that of school teacher and basketball
coach. Larry Miller also happened to be the son-in-law of Frank Carruthers, Re-
spondent's operations manager and second in charge under McCormick.
On June 2 as the crews were starting out for a demonstration of the method of
using a new spray which the Respondent was using for the first time that year,
1 This term specifically includes counsel appearing for the General Counsel at the hearing.
GUERNSEY-MUSKINGUM ELECTRIC COOPERATIVE, INC. 621
Frank Carruthers announced to the assembled crews that Larry Miller was to be
their foreman even though he did not know "a damn thing" about spraying.
During the demonstration by the spray salesman that day Frank Carruthers be-
came incensed at the lack of interest therein displayed by both truckdrivers, Ray
Muse and Dick Boyer, and proceeded to criticize them publicly for their inattention.
The appointment of Larry Miller, a new employee, irked the members of the
spray crews, especially those on the Boyer truck, and caused a great deal of talk
and considerable irritation among the regular members of the spray crews. The men
talked about going to see Foster Scott, a member of the Co-op's board of trustees
and its secretary-treasurer, about the matter. These discussions between the crew
members continued daily.
Early in the week beginning June 9 Harry Boyer, father of Dick Boyer, did go to
see Foster Scott and complained about the appointment of a new employee as a
foreman and also about the fact that Harry Boyer thought that he had not received
the annual 10-cent-per-hour raise in pay voted by the board of trustees to start the
previous January 1.2
A day or so later Charles Vessels also visited Foster Scott and complained about
the hiring of Larry Miller as foreman and about what he considered to be a loss of
2 days' sick leave .3
On Thursday, June 12, Dick Boyer visited Foster Scott where he also complained
about the employment of Larry Miller, a new employee, as foreman.
The following day, Friday, June 13, Foster Scott called Lyle McCormick to his
home for a conference which lasted 1'%a or 2 hours during which Scott told
McCormick that he had received more complaints that week than he had ever before
received in his years on the board. Scott then proceeded to discuss the grievances
received in order: (1) The hiring of Larry Miller as foreman which Scott considered
ill-advised, at least, especially as Miller was inexperienced and also made the fourth
member of the Carruthers family on the Respondent's payroll; (2) the 10-cent wage
increase; and finally (3) the sick-leave complaint. During his talk with McCormick,
Scott identified only one complainant, Dick Boyer, but McCormick was able to
identify both Harry Boyer and Vessels from his knowledge of the grievances men-
tioned. McCormick did not know how many others, if any, had also complained.
Scott mentioned to McCormick that the possibility of taking the matter to the
NLRB had also been mentioned during his talks with the employees.
After McCormick had returned to his office following his conference with Foster
Scott, he drove out to see Sam Miller at Miller's home, and following that visit
went to see Paul Flagal whose name had been mentioned to Scott by Dick Boyer.
In each instance McCormick inquired of the man he was visiting as to what he
thought about Dick Boyer and Dick Boyer's attitude. According to McCormick,
Flagal also denied the occurrence of the incident which Dick Boyer had mentioned
to Scott.
First thing Monday morning, June 16, Lyle McCormick called the two Boyers,
Vessels, and Cy Wolfe into a meeting.4 McCormick confirmed the testimony of
the other witnesses as to the events of this meeting when he testified:
We went down to the basement which is our employees' meeting room. It
had been my intention before we went to have all the members of the crew
there, with the exception of Larry Miller. It so happened Mr. Muse was not
there, but at this meeting the four people were there that you mentioned.
I said to these gentlemen, "I understand you are not happy about some of your
working conditions; that some of you have went to one of the directors and
made your complaints known to him."
I said, "I am unhappy about this situation, that you went to him instead of
coming to me.
I said, "It is part of my job to settle your problems if you have any, and
you didn't come to me."
I asked them all why they had went to him, and finally since I got no answer
directly, I said, "Was it because I hired Larry Miller," and they all agreed that
it was primarily. And they also insinuated it had been Mr. Carruthers' doings
2 According to the Respondent this 10-cent-per-hour increase of January 1 offset the
reclassification of Harry Boyer from truckdriver to groundman which, in turn, decreased
his pay by 10 cents per hour.. In any event Boyer's pay had remained constant at $1.60
per hour.
8 This sick leave. was subsequently straightened out to the satisfaction of Vessels.
4 The only other rank-in-file employee, Muse, apparently was either absent or late that
morning.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he was hired. I attempted to straighten him out on that, or straighten them
out on that situation , it was my decision . If they had any desire to crucify any-
body they better look to me to do it.
I also told them that Mr. Scott mentioned the fact one of them, didn't men-
tion which one, don 't know, they didn 't want us to go to the Labor Board with
the complaints .5 And I said, "For your information , it is my understanding
that the Labor Board is not accepting jurisdiction over companies which have
an income-," oh, I believe it was less than $3,000 ,000 at that particular time.
This would have been June 16. I think I also told them in that meeting that
I had hired Larry to do this job, because I wasn 't sure when Sam was coming
back , and I needed another man , and I thought he was capable of-more
capable than any of them in contacting the farmers , and I think I also told
them I thought it was still my prerogative to hire the people that I thought could
do the best job for me. I believe to my best knowledge , that concluded the
discussion , and that they went back to work.
In this testimony of McCormick 's, which is accurate , he forgot to mention the
fact that early in the conference he also inquired of each employee present if he
had gone to see Foster Scott. Each employee there admitted having visited Scott 6
Things then went peacefully for the spraying crew until Wednesday morning,
June 18.
On that Wednesday morning the two crews attended their regular weekly safety
meeting from 7:30 to 8 a.m . before driving approximately 15 miles to where they
had left their spray truck the day before . The spray truck of the Boyer crew was
then parked at the top of a hill some 3 spans ( the distance between the poles) 7
from the place where the electric lines first crossed the highway. The electric lines
crossed the highway at that point , continued across lowlands in which a crop was
growing until it again crossed the highway which was traveling in a U shape some
500 to 600 feet from the original intersecting point . From that second intersection
the electric lines ran up a hill.
Upon reaching this hill Larry Miller instructed the crew on what they should
do 8 and then stated that he was going ahead to get permission from another farmer
for them to spray on his field. It was Larry Miller's duty to instruct the crews where
and when to spray and also to secure the permission for such spraying from the
farmers who own the land over which the lines passed.
The Boyer crew completed spraying under the line from the top of the hill to
where the line first intersected the highway . According to Larry Miller's estimate
of 15 minutes to spray one span, the crew had done three -quarters of an hour's
work in reaching the highway . They had also apparently moved the truck along
the highway to the second place the line intersected the highway and were standing
alongside of or sitting in the truck when McCormick drove up and inquired of them
as to what caused the delay. The employees all answered that they were waiting for
the foreman . At just about that time Larry Miller returned and asked the crew if
they had sprayed up the hill by which the truck was parked and, upon receiving a
negative answer, stated that it had to be sprayed and that, as the truck could not be
driven into that field, the men should combine the two lengths of hose, drag it onto
the field, and spray as they came back . The men immediately proceeded on that
course of action.
McCormick then called Larry Miller over to him and asked whether Miller had
definitely instructed the men to spray up that hill and whether permission to do so
had been secured. When Miller answered "yes" to both questions , McCormick got
into his car and departed.
McCormick drove over to where the other crew was spraying where he again
inquired of Sam Miller, who had rejoined that crew shortly before, about Dick
Boyer's attitude.
5 This is an obvious error in the transcript and is hereby corrected to accord with all
the testimony in the record to read : "-they didn't want to have to take us to the Labor
Board with the complaints."
6 Wolfe, who is deaf , apparently misunderstood McCormick 's question as he also answered
"Yes" that he had visited Scott. Apparently , in fact , Wolfe had not visited Foster Scott.
4 McCormick testified that the distance between spans at this point was 375 feet. Larry
Miller estimated the distance at about 250 feet between poles.
8 As noted in the Respondent 's brief the testimony , including that of Larry Miller, as
to these instructions , was anything but definite and clear.
GUERNSEY-MUSKINGUM ELECTRIC COOPERATIVE, INC. 623
About 1:30 that afternoon McCormick returned to the Boyer crew and ordered
Dick Boyer to come to his office when the day's work was completed.
McCormick returned to the company office where he ordered the accountant to
make out checks for Boyer and instructed Carruthers to lay off the other two mem-
bers of the crew for the remainder of the week because they would have no truck-
driver after Dick Boyer was discharged.
That evening after the completion of work Dick Boyer went as instructed to
Lyle McCormick who informed him that he was going to have to lay him off, that
he hoped Dick had nothing against him as he had nothing against Dick. When
Boyer inquired why he was being laid off, McCormick refused. to give a reason.
Boyer asked for a layoff slip but McCormick said that he did not have one made out.
McCormick then handed Dick Boyer two checks in payment in full for the work he
had performed through that day together with what was owing him on a sickness and
leave account. Then McCormick added, "I have another check made out for 2 weeks
severance pay. If you don't do anything to be sorry for, or make me sorry, I will
send you that check in 2 weeks."
With that the employment of Dick Boyer by the Respondent ended despite an-
other visit by Boyer to Foster Scott.
On June 23, 1958, Dick Boyer filed a charge against the Respondent with the
Board which promptly notified Respondent of the filing of said charge.
Boyer registered at the Ohio Bureau of Unemployment Compensation for his un-
employment compensation. He was asked for his discharge slip from Respondent.
Boyer stated that he would try again to secure one from Respondent. When he did
so, McCormack again refused to give him one. On June 27, 1958, the Bureau did
secure a report from Respondent giving "Insubordination" as the cause of discharge.
On July 24, 1958, Respondent, over the signature of Lyle McCormick, requested
"Reconsideration of the Determination" of July 15, 1958, by the Ohio Bureau of
Unemployment Compensation in which he again stated that Boyer had been dis-
charged for "insubordination." This letter contains the following paragraph:
James Richard Boyer was discharged for insubordination. The word in itself
describes Mr. Boyer's attitude towards his work. Insubordination means dis-
obedience and not submitting to authority. Both of these definitions could
justly be applied to Mr. Boyer. This attitude has always been inherent during
his employment with the Co-operative to a more or less of a degree.
McCormick also stated in this letter:
I gave him his pay for the period from June 1 through June 18, plus his
accumulated sick leave, plus any unused vacation and told him a severance
check, which would equal 2 weeks of regular pay, would be sent to him on
July 5 if he would go home and act like a gentleman and attempt to secure
other employment.
I do not believe Mr. Boyer has acted like a gentleman, but I wish it to be
known that I sent him his severance check on or about July 7, 1958.
B. Conclusions
Admittedly no union activities are involved here.
But the hiring of a newcomer as foreman over a group of old-time employees was
an incident which affected all the employees of the spraying crews at least and in-
volved numbers of principles which, according to the viewpoint of the usual em-
ployee, were closely related to the mutual aid and protection of employees.
The group objected to the appointment of a newcomer as their foreman for a
number of reasons: (1) It violated the usual employee safeguards of seniority and
their own assumed right to anticipate rewards for good and faithful service, and
(2) it also violated their ideas as to efficient operation and the competent handling
of their own particular job.
It is quite clear that this group irritation and griping was based on principle and
not upon the personality of Larry Miller, the unfortunate victim, because, as the
Respondent itself pointed out, the irritation and the griping had commenced even
before the employees had experienced the foremanship of Larry Miller.
The Respondent contends that, because Dick Boyer and the other two employees
complained to Foster Scott individually and without announcing any representative
capacity as to their spokesmanship, the element of "concerted action" is missing
here. It is quite true that the employees created no formal organization nor formally
authorized any spokesman for the complaining group, although three employees
all stated they were going to take the matter to Foster Scott. But the cases on the
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
idea of concerted activity for mutual aid and protection are all in accord that no
such formalities are required in order to establish concerted activity. It is enough
if the matter at issue is of moment to the group of employees complaining and if
that matter is brought to the attention of management by a spokesman, voluntary
or appointed for that purpose, so long as such person is speaking for the benefit of
the interested group.
McCormick's own description of the meeting of June 16 proves that he, at least,
believed that the visits of the employees to Foster Scott were a concerted move of
objection to the appointment of a newcomer as foreman, a matter involving the
working conditions of the employees generally. It is obvious that he called that
meeting to find out how widespread that concerted movement was in fact. It is also
clear from his own reference to the threat of going to the NLRB that McCormick
at least recognized the grievance as a concerted act by the employees involved.
Hence, the Trial Examiner must find that the visit of Dick Boyer to Foster Scott
was, in fact, a concerted act for the mutual aid and protection of the employees and
that the Respondent so understood it.
The only question remaining is as to whether or not Dick Boyer was discharged
for having gone to Foster Scott as an integral part of the concerted action or whether
he was discharged for some reason outside the orbit of the Act.
Once again Lyle McCormick quite clearly supplied the answer. McCormick was
obviously upset that the employees would make complaints regarding their own
working conditions to a member of the board of trustees rather than directly to him-
self. He was, as he himself expressed it, "damn unhappy" that the employees had
complained to Foster Scott rather than to himself. He was also interested, though
not at that time worried, that the men had suggested that they might carry their
complaints to the NLRB. It is of interest that he mentioned that threat not only at
the meeting of June 16 where he pointed out the impossibility of such concerted
move but also referred to it in his letter to the Ohio Bureau of Unemployment
Compensation when he mentioned the fact that Boyer had actually gone to the
Board with his complaint.
But the sockdolager is the fact that McCormick began investigating Dick Boyer
promptly and immediately on the very same evening on which he discovered that
Boyer had complained to Foster Scott regarding the hiring of Larry Miller, and long
before the incident of June 18. It was on and after this date that McCormick dis-
covered a few innocuous things about Dick Boyer. McCormick admitted that he
began investigation of Boyer "partly" because of the fact that Boyer had gone
to Scott.
Although, according to the testimony of McCormick at the hearing, Boyer's atti-
tude of "insubordination and refusal to submit to authority" had been "inherent"
throughout his employment with the Respondent, the record fails to disclose any
reprimands by the Respondent to Boyer or any expressed dissatisfaction on the part
of the Respondent as to Boyer until after the disclosure of the Boyer visit to Scott.
At the hearing McCormick also mentioned the fact that the spraying crews were
not operating efficiently under Larry Miller but, again, the record fails to disclose
any reprimands or criticism by the Respondent until Boyer's discharge on June 18.
If McCormick had really been upset about this alleged inefficiency, it is more than
passing strange that he did not mention it on June 16. It is also worthy of note
that nothing Larry Miller had to say to McCormick had anything to do with Boyer's
discharge. It is clear from the record that Larry Miller was well aware of the
antagonism among both spraying crews which his appointment had caused. But.
again nothing was mentioned to the crews -about this.
McCormick admittedly had no idea how long the Boyer crew had been sitting or
standing by the truck on June 18 so that he really did not know if he had a legitimate
cause to fire the crew or not. Apparently he came to the conclusion. that that
episode gave at least an appearance of legitimacy for the discharge of the one in-
dividual who had been mentioned by name by Scott as having complained to him
regarding the hiring of Larry Miller. After all, at that time which was before the
change in the Board's jurisdictional standards, McCormick did not need to be too
careful in discharging an employee.
Nor should the McCormick offer of 2 weeks' severance pay to Boyer be forgotten.
According to the testimony of McCormick, he promised to send this severance pay-
check to Boyer "if he would act like a gentleman" or, according to the testimony of
Boyer, "if you don't do anything to be sorry for, or make me sorry." '
The facts that McCormick was so "unhappy" that grievances had been presented
by the employees to Scott and that he immediately set forth upon an investigation of
the one man whose name had definitely been given him by Scott as one of those
presenting the grievance proves quite clearly that it was the visit to Scott which
GUERNSEY-MUSKINGUM ELECTRIC COOPERATIVE, INC. 625
started McCormick searching for an excuse to discharge Dick Boyer. Up until that
time the record is devoid of any indication that McCormick was dissatisfied with
Dick Boyer. In fact, McCormick had to go back to 1955 in his investigation for
something to hold against Boyer and had to acknowledge that, for at least 6 months
prior to his discharge, Boyer had given him no cause for complaint. McCormick
had obviously been looking for an excuse, any excuse, to discharge Boyer ever since
learning of Boyer's visit to Scott. The episode of June 18 was only an excuse or
pretext for the discharge as McCormick admitted he had no idea as to how long, if
at all, the crew had been loafing that day-hardly a legitimate reason for discharg-
ing an employee of 6 years' standing so precipitately.
The facts here convince the Trial Examiner, who therefore finds, that Respondent
discharged Dick Boyer because he engaged in protected concerted activity in com-
plaining to a member of Respondent's board of trustees about a matter of working
conditions which affected a group of employees in violation of Section 8 (a)( I) and
(3) of the Act.
HI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in con-
nection with the operations of the Respondent described in section I, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
IV. THE REMEDY
It having been found that the Respondent discriminated in regard to the hire and
tenure of employment of James Richard (Dick) Boyer by discharging him on
June 18, 1958, the Trial Examiner will recommend that the Respondent offer to him
immediate and full reinstatement to his former or substantially equivalent position
without prejudice to his seniority or other rights and privileges and make him whole
for any loss of pay he may have suffered by reason of said discrimination against
him by payment to him of a sum of money equal to that which he would have
earned as wages from the date of the discrimination against him to the date of the
offer of reinstatement in accordance with a formula set forth in F. W. Woolworth
Company, 90 NLRB 289.
In the opinion of the Trial Examiner, the unfair labor practices committed by
the Respondent in the instant case are such as to indicate an attitude of opposition
to the purposes of the Act generally. In order, therefore, to make effective the
interdependent guarantees of Section 7 of the Act, thereby minimizing industrial
strife which burdens and obstructs commerce, and thus effectuate the policies of
the Act, it will be recommended that the Respondent cease and desist from infring-
ing in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. By discharging James Richard (Dick) Boyer, thus discriminating in regard to
his hire and tenure of employment because he had engaged in protected concerted
activities for the purposes of collective bargaining or other mutual aid or protection,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
2. By interfering with, 'restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has committed unfair
labor practices within the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
525543-6a-vol. 124-41
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to James Richard ( Dick ) Boyer immediate and full reinstate-
ment to his former or substantially equivalent position without prejudice to
any seniority or other rights and privileges previously enjoyed, and will make
him whole for any loss of pay he may have suffered as a result of the dis-
crimination against him.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self -organization , to form labor organizations,
to join or assist any labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a)(3) of the Act.
WE WILL NOT discriminate in regard to the hire or tenure of employment or
any term or condition of employment of any employee because of membership
in or activities on behalf of any such organization or because he has engaged in
concerted activities for the mutual aid or protection of the employees.
GUERNSEY-MUSKINGUM ELECTRIC
COOPERATIVE, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
International Longshoremen 's and Warehousemen's Union, Local
8; International Longshoremen 's and Warehousemen 's Union,
Local 92; and International Longshoremen 's and Warehouse-
men's Union and General Ore, Inc. Case No. 36-CD-18.
August 20, 1959
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that "Whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph (4) (D) of
Section 8 (b), the Board is empowered and directed to hear and deter-
mine the dispute out of which such unfair labor practice shall have
arisen . ..."
On October 29, 1958, Sam F. Speerstra, as secretary of General Ore,
Inc., filed with the Regional Director for the Nineteenth Region a
charge alleging that International Longshoremen's and Warehouse-
men's Union, Local 8; International Longshoremen's and Warehouse-
men's Union, Local 92; and International Longshoremen's and Ware-
housemen's Union, herein called the Longshoremen, violated Section
8(b) (4) (D) of the Act by inducing and encouraging the employees
of the Company and other employers to engage in concerted refusal
in the course of their employment to use, process, transport, or other-
wise to handle or work on any goods or perform any services with the
object of forcing or requiring the Company to assign the work of
124 NLRB No. 42.