Gulf States United Telephone Co.

National Labor Relations Board - Board Decisions

Dec 5, 1980

253 N.L.R.B. 603 (N.L.R.B. 1980)

GULF SATES UNITEI) TFIEPH()NNF C(()MPANY
Gulf States United Telephone Company and Local
Union 1506, International Brotherhood of Elec-
trical Workers AFL-CIO-CLC. Case 16-CA-
8634
December 5, 1980
DECISION AND ORl)ER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEI 1.0
On May 15, 1980, Administrative Law Judge Mi-
chael D. Stevenson issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.2
' Resondenl exccpted to certain credihility finding. made hy the Ad-
mlluhstrative Law Judge It is the Hoard's established plicy noll tI oer-
rule an admiistralive law udge', resollulions with respect toI rcdihlulnl
unless the clear preponlderance of all of Ithe relesant esidelce crlllnnccs
us that the rsolulionlls are ncorrect Standard I)r HUlail I'rrit, Ir-, 91
NI RH 544 (195)). erifl IX F d 362 (d OCr 1951) We hase carefully
examined the record all find no hasis for reversing his findings
We also find totally without merit Respolndent's allegatilins of bias and
prejudice n the part of the Admlrustrative aw Judge I!pon our full
coulsideraltion f the record, we perceive no e vidence that the Adtiuills-
traitve I.aw Judge pre udged the record. n;lade prctludilal rlinigs, m-
mitted procedural errolrs distorted the record, or i any way dlnonsrat-
cd a bias against Respondent iII hi, analysis or discus sion of the evidence
I In his recoimmniieded Order, the Adnministrative l.aw Judge provided
that Respollidenl he required I) offer reilarttenTmtcnl to employee Roberts
as a permanent employce Responldelnl ct tends thal Roberts is enll tled Io
reinstatement only ItI the priohationary statlus hich he loccupled aI the
time of his dschargte We finid nio merit il Responidellits ontentilil 'I he
findings of the Administrative aw Judge, which we have adopted ctalh-
lish that Roberts wlluld have completed uccessfully his lirst probhation-
ary period if he had not been discharged by Respondenl ior refusulg to
firgo his protected right to strike. .likewise, during Rohberts' seconrd pro-
bationary period, there is no evidence to suggest that he was less than a
satisfactory employee or that he would nt have served successfully his
probatioary period, if it had nol hbeen fir the fact that Respondent uln-
lawfully discharged luin In p11 1 of ta1 RNh-rs. d.urig hi, I-i- , pth a
tionlary period.,, sork d v ell eyolnd Ihe I d )( i.. [illlih;all, ill. y1 r1,u1 1s1
ally required or Respoindett's cnlplotecs ad a, lie wlas unquestioahly
considered to he a satisfilctory employee ifter completing 't (lays of
service, it would normally be expected that he would have achieved per-
manent status before the events which Occasioned the secolud unlawful
discharge In any case, assuming that there is any real unceranllty. it is
Respondent's unlawful conduct which has created such uncertainty and
in such circumstances, we deem it prioper to resolve ay such uncerlainty
by a presumption which favors the interests if the discriminatee and not
the wrongdoer Accordingly. we shall presume thlt, hut fir Respondent's
unlawful conduct., Roberts would have completed successfully either or
both of his probationary periods and would have achieved the status of
permanent employee Therefiire, we agree with the Administrative l.aw
Judge that Roberts is entitled to reinstalement as a permanent employee
253 NLRB No. 87
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Gulf States
United Telephone Company, Tyler, Texas, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order,
except that the attached notice is substituted for
that of the Administrative Law Judge.
APPENDIX
NoTicII To MPI OY'I-lS
POSTEI) Y R()RI)IR O() 1'tIE
NATI)ONAI ABOH(R R AII( NS lBOARI)
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to presenit evidence and sI11te Illhir positions.
the National I ;abor Relations Board ftiund that we
have iolated the National Labor Relations Act, as
amended, and has ordered us to post this notice
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their (wn choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
stuch activities.
WI witll N ot discharge any employee be-
cause of his or her participation in a lawful
economic strike or other protected concerted
activity.
WE WIll NOT ill any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their Section 7 rights.
WF wl.i. make whole Arthur Roberts, with
interest, for any loss he may have suffered as a
result of our unl.awftil discriminalltio against
him and WE W ll offer him immediate rein-
statement to his former job or, if such job no
longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or
other rights and privileges previously enjoyed.
All our employees are free to engage in concert-
ed activities for the purpose of collective bargain-
ing or other mutual aid or protection. Our employ-
613
DFCISIONS OF NATIONAL LABOR RELATIONS BOARD
ees are also free to refrain fron any or all such ac-
tivities.
GuI.F STATrIS UNIrIEF) TI.EPHONI COM-
PANY
DECISION
STAT MEN I O THIE CAS:X
MICHAE.I D. SEVNSON, Administrative Law Judge:
This case' was heard before me at Tyler, Texas, on De-
cember II and 12, 1979,2 pursuant to complaint issued
by the Regional Director for Region 16 of the National
Labor Relations Board on September 12, and which is
based upon charges filed by Local Union 1506, Internla-
tional Brotherhood of Electrical Workers, AFL-CIO-
CLC (herein called Union), on August 6 (original) and
August 31 (first amended). The complaint alleges that
Gulf States United Telephone Company (herein called
Respondent) has engaged in certain violations of Section
8(a)(l) and (3) of the National Labor Relations Act, as
amended (herein called the Act).
Issue
Whether Respondent discharged probationary employ-
ee Arthur Roberts in whole or in part because of his pro-
tected concerted activities in violation of Section 8(a)(1)
and (3) of the Act.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnessess, to argue orally, and to file briefs.
Briefs, which have been carefully considered, were filed
on behalf of General Counsel and Respondent.
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDIN(iS or FACT
I. RI:SPONI)I NT'S HULSINI SS
Respondent admits that it is a Texas corporation
which operates a telephone communications system with
an office and principal place of business located in Tyler,
Texas. It further admits that during the past year, in the
course and conduct of its business, that its gross volume
exceeded $1(X),000, and that it annually furnishes tele-
phone communication services valued in excess of $5,(XX)
to customers outside the State of Texas. Accordingly it
admits, and I find, that it is an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. TIHI IAHOR ORGANIZATION INVOI VII)
Respondent admits, and I find, that Local Union 1506,
International Brotherhood of Electrical Workers, AFL-
CIO-CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
A cornpnliol cas, Case 17 CA -67 , was ettled prior Io, the hcar-
All datg.
I All date, refer to 179 unless otherm,,ie indicated
IIIl. 'TH AI.I.EGEI) UNFAIR LABOR PRACTICES
A. The Facts
The alleged discriminatee, Arthur Roberts, age 29,
began employment at Respondent on or about September
22, 1978. He was credited with prior electrical experi-
ence while in the military service, and received a higher
starting salary than he would have otherwise received.
Roberts was hired, in part, through the efforts of Johnny
Bivens, a life-long friend, who has worked at Respond-
ent for about 10 years. Roberts was hired as a 90-day
probationary employee. In that status, he was not cov-
ered by the collective-bargaining agreement then in
effect between Respondent and the Union, and which
agreement expired November 30, 1978. (Jt. Exh. 1)
In early December 1978, Roberts joined the Union and
on December 18, 1978, the Union went on strike and re-
mained out until February 11. Roberts joined the strike
and participated in the picket line on eight or nine occa-
sions. His probation would have terminated on or about
December 23, 1978. On December 22, 1978, a payday,
Roberts did not receive his paycheck in the mail pursu-
ant to an arrangement whereby employees on strike
would not have to cross the picket line. All other strik-
ing employees received their checks by mail. Roberts
asked Bivens, picket captain and acting shop steward, to
look into the matter. The next day, Roberts received a
message that Gene King, Respondent's district manager,
was trying to reach him. Roberts notified the Company
that he was then at the home of Bivens and a short while
later a car arrived. Inside this car was King, R. L.
Mooneyham, Roberts' immediate supervisor, and a third
supervisor named Mayfield. As Bivens and Roberts
walked over to the car King asked to speak to Roberts
privately. When Bivens left King told Roberts he was
fired. Subsequently, as part of the strike settlement, Re-
spondent agreed to reinstate Roberts on condition that
he start over his 90-day probationary period. From on or
about February 14 to March 21 Roberts was again em-
ployed at Respondent and then again fired by King. The
reasons for the two terminations and the events leading
to them are sharply disputed by the parties. Accordingly,
I will carefully recite the testimony of the witnesses.
I. Roberts' first period of employment
For the first 4-6 weeks of his employment, Roberts
was assigned for training to David Shed, an independent
contractor. Shed testified at the hearing that Roberts was
a good employee and particularly good with customers.
Shed said Roberts was capable of installing telephones
on his own at the end of the training period and further
testified that he told Mooneyham that Roberts would
make a good installer for Respondent. On one occasion
Shed had to redo some work that Roberts had done.
Subsequent to working with Shed Roberts periodically
worked with Bivens, Glen Coy, another of Respondent's
employees, and Mooneyham. With these men, Roberts
worked primarily on repair work. When Roberts occa-
sionally did telephone installations with Respondent's ex-
perienced employees he found several differences be-
tween the methods used by Respondent and those used
604
GULF STATE S UNI'TED TEL.EI'HONE COMPANY
by Shed. All or most of Respondent's experienced em-
ployees had been trained by other employees rather than
an independent contractor. Thus, it was unusual for Rob-
erts to have been assigned to Shed for training purposes.
Shortly before Roberts completed his training with Shed
he asked Mooneyham for additional training as Roberts
did not feel he was completely familiar with Respond-
ent's practices and procedures. However, in October
1978, Roberts was given his own truck and told to go to
work by himself.
According to the testimony of King and Mooneyham,
Roberts was capable of doing good work, but was fre-
quently sloppy and inconsistent in his approach. They
also testified if Roberts was unable to finish a certain job
he occasionally did not report that certain additional
work needed to be done. According to King, as the
strike deadline approached there was a general work
slowdown by all employees including Roberts. Both
King and Mooneyham jointly decided to fire Roberts al-
legedly for the above-stated reasons.
There is no evidence that Roberts was told that his
work was of such low quality that his job was in jeop-
ardy.3 On the contrary, when he was asked, Mooneyham
told not only Roberts, but also Bivens, that Roberts was
doing well. Walter Pettigrew, Respondent's employee
for 28 years and union steward for 20, testified that in a
conversation between himself and King about 3 weeks
before the strike King volunteered that Roberts was
doing just fine on the job. This conversation occurred in
a cafe in Kaufman, Texas. King also said that he hated to
see a strike come up because he had a good crew of
men, including Roberts, and after the strike some of the
men may not come back to work.4
A second important conversation occurred about this
same time between Roberts and Mooneyham. This oc-
curred at a company installation at Kemp, Texas. Moon-
eyham gave Roberts a letter prepared by Respondent
giving the Company's view of each side's position in the
labor dispute. (Resp. Exh. 1) Then, as it was breaktime,
Mooneyham asked Roberts to join him at a local restau-
rant for coffee. Roberts agreed and, over coffee, Moon-
eyham told Roberts of a strike in Kansas where a large
number of employees had walked out and had been fired.
Mooneyham went on to say that Roberts could not be
forced to strike and that if he elected to continue work
Mooneyham would bring the work material to him so he
would not have to cross the picket line. Roberts told
Mooneyham he had not yet made up his mind and the
two men returned to work.
:' Mooneytham testified Ihat he and Roberts had everal conversalions
about his work and the progress he was making. This, of course, is not
inconsistent with my finding However, so there is no question, I find
that Roberts had no notice at all. that his progress was less than saltsfac-
tory. Even though Roberts himself was concerned about his lack of
proper training all feedback front management was to the contrary.
4Except for the reference to Roberts. which he could not recall
making, King testified that the conversation occurred as described by
ettigrew. However. King did "explain" in his testimony that he was not
suggesting that employees who ent on strike would he terminated, but
only meant that the Company would lose long-ime goost employees uho
might find work elsewhere. I will draw my oulln inferences from this
conversation in the "Analysis and (Conclusions" section oIf this opinion
For now, I credit the conversation as descrihed hy P'etigrew.
When the strike occurred, Respondent had 850 em-
ployees, of whom about 600 were in the bargaining unit.
Of these, approximately 350 were on strike. On proba-
tion were 40 employees and 6 went on strike. Roberts
was the only one fired. However, in Roberts' immediate
work group, under King's supervision, there were 23 em-
ployees, of whom Roberts was the only one on proba-
tion and the only one fired.
After Roberts was fired, Bivens, on behalf of the
Union, attempted to file a grievance over the matter, but
King refused to accept it, asserting that Roberts was not
a member of the Union. In any event, Respondent's ne-
gotiating committee eventually agreed as part of the
strike settlement to reinstate Roberts if he would begin
anew his probation period and the Union and Roberts
agreed to this.
2. Roberts' second period of employment
When Roberts returned to work on February 14, he
was called into King's office, where he was told by
King, "You're darn lucky. Not everybody gets a second
chance. Go out and do the best you can." Then Roberts
was assigned a truck and began to work on his own.
In late February or early March, King told Roberts
that in April he would be attending a 3-week I & R
school which all new employees attend either while they
are on probation or after. Arrangements for Roberts to
attend the school had been made in September or Octo-
ber 1978. However, King never told Roberts then. Rob-
erts frequently asked Mooneyham how he was doing. On
two occasions, Mooneyham said he had made mistakes
on his jobs, but on all other occasions, Roberts was told
his work was satisfactory. Bivens was given the same in-
formation whmn he made frequent inquiries of Mooney-
ham. On one occasion in early March, Roberts, Bivens,
Mooneyham, and Frank Havelet, another supervisor,
were having coffee at a local restaurant. Havelet asked
Mooneyham to permit Roberts to work for Havelet until
the latter was caught up. Mooneyham replied, "I can't
do that. Arthur is one of my best men and installers. I
can't afford to send him down there."
All went apparently well until March 21. On that day
Mooneyham told Roberts that King wanted to see him.
At King's office, Roberts was told he was fired. His re-
quest for the shop steward to be part of the meeting was
denied. King then related to Roberts a number of alleged
problems with the quality of his work. Roberts either
denied the mistakes, or said they were the result of a
lack of proper training or equipment.
King testified that his attention was called to Roberts'
work by a post card mailed into the office by Mrs.
Harold Bowen as the result of her husband's experience
with an employee of Respondent. Mrs. Bowen wrote
that her phone was frequently out of service, and that, in
addition, the Company's service people complained
about wages to Mr. Bowen and told him they were un-
happy with the strike results. (Resp. Exh. 2.) After re-
ceiving this post card, King assigned Mooneyham to
look into the matter and to identify the employee re-
ferred to.
6()5
I)ECISI()NS ()F NATI()NAL LABO()R RELATI()NS B()ARI)
Mooneyham went to the Bowen home, a house trailer.
He spoke to Mrs. Bowen, who told him that her husband
had had the conversation with the employee out of her
presence. Mr. Bowen was not home at the moment and
Mooneyham never spoke to him nor to Roberts either.
However, Mrs. owen described the employee as a
young man with dark hair and of medium height. This
description fit Roberts, who in fact had done work at the
Bowen home about I month before the post card had
been mailed i. Mooneyham also found certain work im-
properly done. Roberts denied making the remarks in
issue and being responsible for the improperly performed
work. I cannot believe that Roberts would make such
statements with his employment position as fragile as it
was. Also, there was no evidence that Roberts was less
than completely satisfied with the strike settlement. Fi-
nally, the evidence showing that Roberts made the re-
marks at issue or was responsible for the improper work
is completely unpersuasive and I credit his denials.
The Bowen post card was postmarked either March 18
or 19. It was not elated by Mrs. Bowen at the time she
wrote it. After receipt, Mooneyham examined the
Bowen's record of service which reflected that on Feb-
ruary 19, "A.R." (Roberts) went to the owen house to
make repairs. On cross-examination, the General Counsel
pointed out an apparent error on the face of this card.
(Resp. Exh. 16.) But it is the testimony of Mr. Bowen
himself that causes me to doubt both that Roberts made
the remarks in question or that Respondent's agents
could reasonably believe that he did.
Harold Bowen, age 62, was a retired military man. He
testified that he had three telephones at his home and
they did not work well. As a result, telephone people
frequently came to his home. The service calls amounted
to 5 to 10 in number within the relevant 3 to 4 month
period before Roberts' termination. He was not sure
what the date of the service call was for the post card in
evidence. Sometimes Bowen did not pick up his mail
every day and would not then receive his post card
promptly. Finally, Bowen was unable to identify Roberts
from the spectators at the hearing and even when Rob-
erts alone stood, Bowen was unable to say whether Rob-
erts had made the remarks in question. 5 The General
Counsel provided other evidence to show that on occa-
sion Respondent's employees might go to a customer's
home on a serv/ice call and the customer's record of serv-
ice would not reflect the call.
According to King, after receiving the Bowen post
card and Mooneyham's report that Roberts was the of-
fending employee, King directed that a complete inspec-
lion of Roberts' post-strike work be done. This led to
Eppers, another hearing witness, and other customers
who allegedly received poor service from Roberts.
On many of the investigations of Roberts' work, in-
cluding the Eppers' matter, King accompanied Mooney-
ham. King had very little technical knowledge and skill
and in most cases had to depend on Mooneyham for ex-
planations of Roberts' work. It was unusual for King to
devote as much of his time to a check of an employee's
]'here wa;l n credible evidence that Roberis' appearance atl the hear-
ing was substantially different from his appearance at the ime he worked
at the Iowen home
past work. Both King and Mooneyham testified that they
went to the Eppers' home to check on Roberts' work
there and spoke to Eppers, who had not previously com-
plained about any aspect of Roberts' work. According to
King and Mooneyham, Eppers complained that while
the telephone employees had done good work, they did
not clean up adequately. In the bedroom of the Eppers'
home, they found some sawdust and wire shavings near
where a telephone wire had been installed. In addition,
they testified that Eppers had complained of other trash
left which she had cleaned up herself.
Eppers testified as a witness and gave a sharply differ-
ent version of events. According to her, she and her hus-
band had just moved into a new home and were desirous
of getting telephone service as soon as possible. At her
request, Roberts asked for and received permission to
work overtime to finish the job of installing her tele-
phones. In addition, a second employee by the name of
Glen Coy, also a witness at the hearing, was sent out.
Coy worked primarily inside and Roberts primarily out-
side. According to Eppers, the men apparently left a
small amount of sawdust in her bedroom. However, this
had not even been noticed by Eppers until it was pointed
out by King and Mooneyham on their inspection a few
days later. Eppers denied complaining about the service
either before or after the sawdust had been found by the
two supervisors. In fact, she even blamed herself for not
vacuuming very well.
I resolve the conflict in the testimony by crediting the
testimony of Eppers. Not only was she a witness with no
interest in the proceeding, but also I found her to be a
credible witness based on her demeanor. In addition, I
find it significant in discrediting the testimony of King
and Mooneyham on this point that in making their inves-
tigation of Roberts' work, they never asked for his expla-
nation, nor did they talk to Coy.6 They reasoned that it
was unnecessary to interview either employee since it
was company policy for Roberts to be responsible for
the job as it had been assigned to him initially. Coy, a
veteran employee of almost 10 years, testified that no
trash had been left over at the Eppers' home when he
and Roberts finished the job about 6:30 to 7 on a Friday
in March. Roberts also denied that any sawdust or other
trash had been left over. In light of the testimony of
Roberts, Coy, and Eppers, I have substantial doubts that
there was any trash left over by Roberts and Coy. As to
the sawdust found by King and Mooneyham on their in-
spection, I offer no opinion as to how that came to be
found.
* II also seem, significanit to me that in attempting to build a case
against Roberts. Mxoneyham returned to the Eppers' home during the
summer antd asked her to sign a statement saying hat King and Mooney-
hanm had found trash behind the nightstand Eppers refused and referred
Mooineyham Ito her husband t'his occurred after Roberts had been fired
and apparently subsequent to he filing of a charge with the NLRB.
7 Repeatedly at the hearing until it became almost a cause of levity.
Fippeis indicated conceril for her new carpeting in her new home. She
testified several times that anyone connected to Respondent was told to
wipe his feet hbefore entering her home I cannot heive that any debris
or sawidust would have escaped the attention of this pers(m nevertheless,
shie never noticed it unllti it was pointed out by King and Moneyham
606
(LGULF STATES lINIT1) TEI. PH()NE CO()M'ANY
B. 4nalysis and Conclu.sions
I begin by noting that probationary employees are
fully covered by the Act. 9 That the collective-bargaining
agreement in this case excludes probationary employees
is immaterial to the process of deciding whether Roberts
was discharged for his protected concerted activities. In
making this analysis, I have considered events both
before and after the strike as reflected in "The Facts."
There exists a continuing course of conduct which must
be considered in its entirety.
I find that Roberts was discharged for his protected
concerted activities and that Respondent's additional
motive was to chill the Union's strike activity and post-
strike influence. I look first to Respondent's claim that
Roberts' work was sloppy and inconsistent. This claim
must be measured against Mooneyham's attempt to con-
vince Roberts to work during the strike as reflected
above. Only when Roberts went out on strike was it nec-
essary to fire him the first time. Of course, an employee
cannot be discharged for participation in a lawful eco-
nomic strike whether he be on probation or not.10 There
is little doubt that this was Respondent's primary motive
in firing Roberts on December 22, 1978.
The prestrike record is replete with evidence that Re-
spondent considered Roberts a good employee beyond
the fact he was asked to work through the strike. Rob-
erts himself was so assured, as was his friend, ivens,
and as was the shop steward, Pettigrew. 12 In addition,
Roberts was scheduled several months in advance to
attend the 3-week I & R School. The record also shows
that Roberts both before and after the strike received no
warnings to indicate his job was in jeopardy or that the
mistakes he made were greater than a similarly situated
employee. The summary discharge of Roberts while he
was on strike, without warnings, is some evidence that
his discharge was for unlawful reasons. 3 In addition, the
manner and timing of Roberts' discharge had a substan-
tial chilling effect on union sympathizers. 4 That is, the
record shows that Roberts would not have been fired if
he had worked through the strike. Since he had joined
the Union prior to the strike he was bound to strike or
be subject to union discipline. Respondent's actions
tended to deter employess from joining the Union and
deprived Roberts in particular of his right to engage in
his Section 7 rights, to wit, to participate in a lawful eco-
' The General Counsel asserts in fn 5 of her brief that she no longer
seeks a remedy for the Weingarten violation alleged in par. 7 of the com-
plaint. I agree with this decision and will recommend that this aspect of
the case be dismissed. Bon Rouge Water Works Company. 246 NLRH
No. 161 (19791.
9 Georgia-Pacific Corporation. 204 NLRB 47. 54 (1973).
'o N.L.R.B. v International Van Lines 4()9 U S 48 (1972).
1i Respondent had less than I week to go before his probation expired
when he went on strike December 18, 1978.
12 King's statement to Pettigrew shortly before the strike that he hated
to see a strike come up because he had a good crew of men and after the
strike some of them might nt be coming back. is direct evidence of Re-
spondent's unlawful motive. I reject King's belated explanations at the
hearing of what he meant by the statement as contrary to the evidence
and self-serving
13 E. Anthony & Sons, Inc v iVL.R.B.. 163 F.2d 22, 26 (D.C. Cir.
1947).
14 Cf. Dan Lucas Internutional Inc., d/b/a Son Jose Bavarian Mot/ors
and Michael Steven Fulton, 229 NLRB 127, 128 (1977).
nomic strike. This finding is further supported by addi-
tional facts such as that Roberts was one of 23 employ-
ees in King's unit, the only employee to be on probation,
the only employee-so far as the evidence shows-to be
asked to work through the strike and the only employee
to be fired, after refusing to work through the strike.
Of course, the legality of the first discharge is not di-
rectly in issue as Roberts was reinstated (and there is a
statute of limitations issue). However, I have considered
the prestrike matters and Roberts' first discharge as back-
ground. In addition, Respondent clearly had knowledge
of Roberts' union status as he walked the picket line on
several occasions. In addition, the Union negotiated his
return to work. The events after reinstatement, i my
opinion, weigh even stronger in support of the General
Counsel's theory. First, the alleged trigger of the investi-
gation, the owen incident which I have described at
length above, is in reality, no evidence of poor work nor
of wrongdoing by Roberts. The method of investigation
here shows King and Mooneyham were absolutely intent
on fabricating a case against Roberts. Neither in the
Bowen matter nor the Eppers' matter did management
ask Roberts for his version of the incidents at issue.
Their failure to do so supports my conclusion that Rob-
erts was unlawfully discharged the second time. In this
respect, I have examined the reports received into evi-
dence which allegedly support Respondent's theory of
poor work by Roberts. There is a place at the bottom of
the form which reads: "reviewed by Employer on
(Month) (Day) (Year)." Almost without exception, no
entry was made on these forms. Mooneyham testified
that notwithstanding his failure to complete the above
entry, he did review several of them with Roberts. I do
not believe him. That testimony is in conflict with the as-
surances given that Roberts' work was satisfactory. 1
also credit the testimony of Bivens that in early March,
Mooneyham told another supervisor that Roberts was a
good man, one of Mooneyham's best installers, and too
valuable to be loaned to the other supervisor.
In analyzing the evidence, I find it incredible that
King, with virtually no technical expertise, should have
accompanied Mooneyham on the inspections of Roberts'
work. King admitted that this was outside the normal
scope of his activities. Variance by the Employer from
normal business practices further supports my conclusion
that Respondent was intent on fabricating a case against
Roberts. I believe the motive for this relates back to
the first discharge of Roberts for the unlawful reasons
discussed above. Respondent was intent on vindicating
its decision to fire Roberts for refusing to work during
the strike.
I have found the Bowen and Eppers matters to be ut-
terly devoid of merit as grounds to fire Roberts. Howev-
er, the other assertions, that Roberts was sloppy and in-
consistent, and committed minor infractions of Company
discipline, have at least a scintilla of credibility and
therefore, I will discuss them briefly. The record shows
that Roberts was trained by a contractor who was unfa-
'S LUnited Starte Rubber Company r s NI.R.B.. 384 F.2d 66), 662 663
(5lh (ir 1967}
i Hansen Cakes Inc., 242 NLRB 472 (1Q779)
I)ECISIONS OF NATIO)NAI. I.A()OR RELATIONS BOARD
miliar with Respondent's procedures. All or most other
employees are trained by Respondent's own employees.
Moreover, Roberts did not have a full complement of
tools necessary to do proper work. Thus, I find that to
the extent the record shows that Roberts' work was not
good, it was due to Respondent's failures. To put it
plainly, Roberts was playing with a "stacked deck." One
example of this was the testimony of Mooneyham on
cross-examination which I credit that many of the mis-
takes and irregularities found in Roberts' work would be
found in the work of other employees if they were sub-
ject to the same scrutiny. As to the testimony that Re-
spondent may have entered an area of Respondent's
premises on one or more occasions, or been slow in start-
ing work on one or more occasions, I am convinced
these matters are de mininis and completely ineffective
in justifying Roberts' discharge.
In conclusion, Respondent's reasons for the discharge
of Roberts cannot withstand careful examination and I
find them to be pretextual. On the basis of this finding,
the credited testimony, and the facts of record, I find
that the real reason for Roberts' discharge was his pro-
tected concerted activities. Hagerty Catering Company,
236 NLRB 1553 (1978). Accordingly, I find that Re-
spondent violated Section 8(a)(l) and (3) of the Act by
discharging Roberts.
IV. THE EFFECT OF T'HE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
Upon the basis of the foregoing findings of fact and
the entire record, I make the following:
CONCIUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce and in an
industry affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Arthur Roberts, Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(3) and (I) of the Act.
4. The aforesaid improper and unlawful acts and con-
duct affect commerce within the meaning of the Act.
V. THE REMEDY
The recommended Order will contain the convention-
al provisions requiring Respondent to cease and desist
from engaging in the unfair labor practice found, and to
take certain affirmative action to effectuate the policies
of the Act. Respondent shall be ordered to immediately
reinstate Arthur Roberts to his former job or, if that job
no longer exists, then to a substantially equivalent job,
without prejudice to his seniority or other rights and
privileges, and to make him whole for any loss of earn-
ings and compensation he may have suffered because of
the illegal discrimination against him in his employment
as hereinfound.' 7 Backpay shall be computed with the
formula and method prescribed by the Board in 1 W.
Woolworth Company, 90 NLRB 289 (1950), and the reme-
dial interest rate shall be computed in the manner pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977).Is
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER' 9
The Respondent, Gulf States United Telephone Com-
pany, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging any employee because of his or her
participation in a lawful economic strike or other pro-
tected concerted activity.
(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 which is nec-
essary to effectuate the policies of the Act:
(a) Offer Arthur Roberts immediate and full reinstate-
ment to his former position or, if such position no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights or privileges previ-
ously enjoyed, and make him whole for any loss of earn-
ings in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Expunge from Respondent's personnel records any
and all references to the discriminatory termination of
employment of Arthur Roberts.
(c) Post at Respondent's Kaufman, Texas, facility
copies of the attached notice marked "Appendix." 2 0
Copies of said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by Re-
spondent's representative, shall be posted by Respondent
immediately upon receipt thereof, and maintained by it
for 60 consecutive days thereafter, in conspicuous places,
17 On two separate occasions while on probation, Roberts was dis-
charged unlawfully and was not permitted to become a permanent em-
ployee. Accordingly, Roberts should be reinstated as a permanent em-
ployee, as to do otherwise would he to prejudice his "seniority or other
rights and privileges."
' See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962)
19 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
20 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enfocring an
Order of the National Labor Relations Board."
GULF STATES UNITED TELEPHONE COMPANY
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order. what
steps Respondent has taken to comply herewith.
609