Houston County Electric Coop., Inc.

National Labor Relations Board - Board Decisions

Jan 25, 1980

247 N.L.R.B. 579 (N.L.R.B. 1980)

HOUSTON COUNTY ELECTRIC COOPERATIVE, INC.
Houston County Electric Cooperative, Inc. and Local
Union 1506, I.B.E.W. Case 16-CA-8235
January 25, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On August 27, 1979, Administrative Law Judge
Timothy D. Nelson issued the attached Decision in
this proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Houston County Electric
Cooperative, Inc., Crockett, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
IT IS FURTHER ORDERED that the complaint allega-
tions not specifically found herein be, and they hereby
are, dismissed.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Product& Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge: This
case was heard at Crockett, Texas, on May 2, 1979, based on
an original charge filed by Local Union 1506, I.B.E.W. (the
Union), on December 13, 1978,' against Houston County
Electric Cooperative, Inc.' (Respondent), and a subsequent
' All dates are in 1978 uness otherwise specified.
Respondent's name appears as amended at hearing by stipulation of the
parties.
247 NLRB No. 87
complaint dated January 23, 1979, issued against Respon-
dent by the Acting Regional Director for Region 16 of the
National Labor Relations Board, which alleged, in sub-
stance, that Respondent violated Section 8(a)( ) of the
National Labor Relations Act, as amended, by various
statements of Respondent's manager, W. H. Holcomb, to
employees. The complaint further alleged that Respondent
violated Section 8(a)(3 ) and (1) of the Act by discharging
employee Larry Turner on December 31 and by thereafter
failing and refusing to reinstate Turner, all allegedly because
Turner had engaged in union and/or other protected
concerted activities.
Respondent's answer admits due filing and service of the
aforesaid charge and complaint, but denies any wrongdoing.
The Issues
As to the alleged violations of Section 8(a)( ), Respondent
Manager Holcomb did not deny that he made certain
statements attributed to him by employee witnesses called by
the General Counsel. Therefore, the issue as to those
allegations is whether or not any or all of Holcomb's
admitted statements tended to interfere with, restrain, or
coerce employees in the exercise of rights guaranteed in
Section 7 of the Act.
As to the 8(a)(3) allegation, Respondent asserts, in
substance, that employee Larry Turner had worked along
with a more senior employee in Respondent's appliance
department, that due to a cutback in services performed by
the appliance department Turner's position became redun-
dant, and that there were no other positions to which Turner
could be feasibly transferred. The General Counsel does not
dispute that certain functions of Respondent's appliance
department were phased out for bona fide economic reasons
and further does not contest that said phasing out necessari-
ly required that one of the two jobs in that department be
eliminated. However, the General Counsel contends that,
but for discriminatory reasons, Turner would have been
retained in the appliance department in preference to the
more senior employee working there, or alternatively, that
there were other jobs to which Turner could have been, but
was not, reassigned due to discriminatory antiunion consid-
erations. Accordingly, the main questions raised by the
8(a)(3) allegation are:
(a) Were there other available jobs for which Turner was
qualified after one of the two appliance department positions
was curtailed?
(b) If so, was the failure to select Turner for assignment to
one of them influenced by his union activities?
Upon my consideration of the record as a whole, includ-
ing the parties' briefs, and my observation of the witnesses'
demeanor, I make the following:
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS OPERATIONS AND LABOR
RELATIONS HISTORY
Respondent admits and I find that it has been at all times
material herein a Texas corporation engaged as a public
utility in the sale and distribution of electrical energy and
that it has, during the representative 12-month period
preceding the issuance of the complaint, realized a gross
business volume in excess of $250,000 in the course and
conduct of said operations. Respondent's answer to the
complaint also admits the conclusionary allegation that
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
At the hearing, while specifically stating that it did not
seek to amend its answer in this regard, Respondent's
attorney stated that it "does not agree nor stipulate at this
hearing that the Houston County Electric Coop is engaged
in commerce, or in the production of goods in commerce, as
those terms are defined in the National Labor Relations
Board [sic] Act. Neither do we stipulate or agree that any of
the employees are engaged, incidentally or otherwise, in
commerce or in the production of goods in commerce, as
those terms are defined in the National Labor Relations
Board [sic] Act. That is for the purpose of this hearing
alone."
Based on the admitted allegations of the complaint, as
well as on the Board's prior assertion of jurisdiction over
Respondent in Case 16-RC-7873 (adverted to below), I
conclude that Respondent's attempted clarification of its
position in this regard did not shift to the General Counsel
any burden of additional proof on the jurisdictional ques-
tion. Rather, the admitted facts concerning its operations
establish that Respondent meets the statutory and discre-
tionary standards for assertion of the Board's jurisdiction
and that it would effectuate the purposes of the Act to assert
jurisdiction over Respondent.
As Respondent's answer to the complaint admits, I find
that the Union is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of the
Act. In Case 16-RC-7873 an election was held on February
20, 1979, in which the Union received a numerical majority
and, on February 28 of the same year, the Union was
certified as the exclusive collective-bargaining representative
in a unit of Respondent's employees composed primarily of
construction, maintenance and service employees. The rec-
ord elsewhere reflects that the Union began its organizing
activities among the approximately 40 to 45 employees in
that unit in late October. The record does not otherwise
disclose that Respondent had had any prior experience or
relationship with any labor organization in any unit of its
employees.
Respondent's manager, Holcomb, admittedly learned of
the organizing activity approximately a week after the Union
had held its first organizing meeting. He was so informed by
' "Standby" is a duty rotated among volunteers which requires employees
on standby to be available by telephone for emergency service and repair calls
from customers. The duty is performed outside the employees' regular work
hours.
an office employee, Don Beard. Holcomb also admittedly
began talking with some employees in the bargaining unit
about the Union's organizing drive shortly after it began. I
find, crediting the undisputed accounts of employee wit-
nesses in this regard, that Holcomb's admitted knowledge of
the Union's campaign was gained sometime in the first week
of November.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged 8(a)(1) Violations
Based on the credited and undisputed testimony of
employee witnesses regarding conversations with Holcomb,
I find that the following incidents occurred:
1. November 3 Ashley-Holcomb conversation
Bruce Ashley, employed by Respondent for 10 years,
currently in the capacity of first-class lineman, made the
original contact with the Union on October 16. As a result,
an organizing meeting was held on October 24 which was
attended by, among others, alleged discriminatee Turner.
Holcomb admitted he learned from "someone" that Ashley
was "pushing the Union."
On November 3, about 3:30 p.m., shortly before quitting
time, Holcomb approached Ashley near Respondent's ware-
house loading dock and asked Ashley what he knew about
the Union. Ashley first replied that he did not know
anything. Holcomb persisted, saying, "I think you know
quite a bit." Ashley then replied, "I'm not going to lie to
you, I am involved in union activity." Holcomb then said: "I
know and I know there are others involved." Holcomb then
asked Ashley what the employees "problems" were, adding
that he would like to know what the problems were so that
he could "help ... work them out." Ashley then told him
that one of the "main problems" was understaffing, requir-
ing employees to "double up on standby."' Holcomb
acknowledged that that was a problem, telling Ashley that
Robert Pace, Respondent's line superintendent, had been
instructed to hire four additional men, but that Pace had
failed to do so. Holcomb then asked Ashley whether there
were "money problems" involved. Ashley said in reply:
"Yes, some of the younger men need more money."
Holcomb then told Ashley about plans for changes when
Respondent got into a new building which was then under
construction,' alluding in this vein to plans to hire a 24-hour
dispatcher, which position would require at least two men.
Holcomb also stated that, when the new building became
occupied, there would be at least "one man [who would lose
his job." Alleged discriminatee Turner was standing on the
loading dock at the time and Holcomb looked in his
direction when making these remarks. Holcomb went on to
suggest to Ashley that Ashley should "get all the men
together and come up ... and talk to him and try to work
all the problems out." Holcomb closed the conversation in a
The building in question was still in the early stages of construction when
this matter was heard, but was then expected to be completed sometime in
July 1979.
580
HOUSTON COUNTY ELECTRIC COOPERATIVE, INC.
joking manner, saying that he did not want Ashley "to put
any more gray hair" in his head.
2. Early November Jenkins-Holcomb discussion
Sidney Jenkins, who has worked for Respondent for 19-Y,
years, presently in the capacity of crew foreman, had a
conversation with Holcomb in a hayfield where Jenkins was
working (in connection with an independent job) sometime
in early November. Jenkins recalled that the conversation
occurred on November 11. Holcomb, who did not otherwise
dispute Jenkins' substantive testimony, recalled that the
conversation took place on a Saturday within 2 weeks of the
first union organizing meeting, but he was certain that it was
not on November 11. It is unnecessary to determine with
precision the date on which the conversation occurred.
During their conversation, Holcomb asked Jenkins if he
had "heard anything about the Union lately." Jenkins
replied that he had heard nothing. While the timing thereof
is not clear from Jenkins' testimony, Holcomb also com-
mented at one point that Pace had been instructed to hire
three or four men as "additional help." Pursuing the subject
of the Union, Holcomb asked Jenkins if he knew with whom
the employees would be bargaining. Jenkins replied that
bargaining would probably be with Holcomb. Holcomb
confirmed this, going on to say that if the employees "went
Union there would be no more 7:00 o'clock to 3:30
workdays, it would be 8:00 o'clock to 5:00 o'clock."'
3. December Ingle-Holcomb conversation
While employee Ingle (or Engle') was not called as a
witness, Holcomb admitted during adverse examination by
the General Counsel that he had spoken with Ingle on the
subject of the Union sometime in December in the "Compa-
ny office." Although Holcomb asserted that he did not recall
the "true conversation" that he had with Ingle, he refrained
from contradicting his recorded recollection on the subject
contained in a pretrial affidavit given to a Board agent. In
that affidavit, Holcomb stated, referring to Ingle: "I believe I
asked him what he knew about the union." Based on that, I
find that Holcomb, in December,' questioned Ingle about
the union organizing activity then in progress.
B. Alleged Discriminatory Treatment of Larry Turner
1. Background
Pertinent details of Turner's employment history and the
events leading up to his termination, which became effective
December 31, are as follows: Prior to his termination,
Turner had worked for Respondent in its appliance depart-
ment for a total of about 8 years. His employment was
I Jenkins explained that he and the other employees would prefer the
traditional 7 a.m. to 3:30 p.m. work hours because "like myself, most of [the
other employees) live in the country on a little farm and got other enterprises
besides this."
' The spelling of the name of the employee in question is rendered as
"Ingle" in the transcript, although the General Counsel renders it as "Engle"
in his brief. The transcript spelling is adopted herein.
' Holcomb credibly testified that, after the Union filed the election petition
in Case 16-RC-7873 on December II, Respondent obtained legal counsel
interrupted for about 3 months in 1973 when he quit his job
after his request for a wage increase had been denied. He
returned to work after being offered a higher pay rate than
his prequit rate. Following his receipt of a wage increase
around September 1, which was implemented pursuant to an
across-the-board increase for all employees, Turner earned
$4.82 per hour until his termination.
Prior to Turner's commencement of full-time employment
in 1970, Respondent's appliance department had only one
employee, appliance serviceman Lacy Bradley.' Turner was
originally hired and worked in that department as appliance
serviceman helper to Bradley until he was reclassified as an
appliance serviceman in 1974 or 1975. Bradley has always
received a higher pay rate than Turner.
In addition to duties which both Turner and Bradley
shared pertaining to the sale and service of household
appliances, Turner also had responsibility for various paper-
work associated with maintaining inventories, recording
appliance warranties, and the like.
It is unquestioned that, for nondiscriminatory economic
reasons, Respondent's board of directors determined on June
28 that the appliance department's operations would be
substantially curtailed beginning January 1, 1979.' Turner
acknowledged that he learned of this decision (but not its
implications to him personally) sometime in "the summer"
(of 1978), conceding that it could have been in June. A
principal feature of the phaseout was that Respondent would
no longer maintain in stock or sell household appliances.
Employees were given the opportunity to purchase appli-
ances from Respondent's inventory with the understanding
that they would not be available after December 31. Turner
himself was one of the employees who purchased appliances
under this arrangement.
For about a year prior to September, Turner had also
served on standby duty, working as "helper" (Turner's term)
to first-class construction lineman Kirby Spinks. He gained
some experience through this activity in performing con-
struction and service work. During that year, he performed
between 20 and 30 hours of standby work each month, in
addition to, and outside of his regular work hours in the
appliance department.
2. Turner is rebuffed and resigns from standby duty
Crediting Turner's uncontradicted account, except as to
the timing (explained below), it is found that, on or about
September 1, Turner sought out Holcomb in the latter's
office to request that his recent pay increase to S4.82 per
hour be further supplemented to make his pay the same as
that received by Bradley, the more senior appliance depart-
ment employee. Holcomb refused, whereupon Turner asked
to be transferred to a construction position. Holcomb turned
down this request as well, commenting that he "couldn't do
and, upon counsel's instruction, he had no further conversations with
employees about the Union. There is no contrary evidence. Based on that, it is
found that Holcomb's conversation with Ingle occurred prior to December 1 1.
' Mistakenly referred to in the General Counsel's post-trial brief as Lacy
Butler.
' Specifically, a resolution was passed by the board members on June 28
that Respondent should "start phasing out the selling of all appliances, but to
continue to sell breakers, wire and water pumps ... effective the first of the
year."
581
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it" without further elaboration. Displeased by these dual
rebuffs, Turner told Holcomb that he wanted to be taken off
standby duty. His request was granted and thereafter Turner
worked solely in the appliance department until his Decem-
ber 31 termination.
In the meantime, on September 6, Danny Hollister, who
had filed an application with Respondent in July, was given
a preemployment physical examination. On September 7,
Hollister began employment as a construction helper.
Hollister was hired at an hourly pay rate of $3.15 and was
also used for standby duty, apparently filling the vacant
standby slot occasioned by Turner's refusal to continue
working standby duty.
A digressive explanation is due here:
Turner repeatedly testified that his conversation with
Holcomb resulting in his voluntary removal from standby
duty took place in early November, after the union cam-
paign, and Respondent's knowledge thereof, had already
occurred. Using his "early November" conversation with
Holcomb as a point of reference, he then stated that, about a
week later, Hollister was hired. Because the precise timing of
Hollister's hire vis-a-vis other events in the case was not
conveniently available, the parties jointly requested at the
hearing's conclusion, and I agreed, that the record would be
held open until the due date for briefs, for the purpose of
permitting a search of Respondent's payroll and other
records and receipt of a stipulation regarding the timing of
Hollister's hire and related details. Such a stipulation was
duly tendered and received into evidence upon the General
Counsel's motion by my order dated June 7, 1979. '1 That
stipulation reflects, inter alia, that Turner was removed from
standby duty on September 1, and that Hollister began work
on September 7. Accordingly, as the General Counsel now
concedes on brief, Turner's testimony was mistaken as to the
timing of the above conversation with Holcomb and related
events.
3. Turner's union activities; Respondent's knowledge
thereof
As noted above, Turner became involved in the Union's
organizing campaign by attending the first meeting in late
October, and thereafter by passing out authorization cards
to at least three employees, including fellow appliance
serviceman Lacy Bradley. It is found that Holcomb knew at
some point, although the precise point is not determinable,
that Turner was one of the employees supporting the Union.
This finding in inferred from the fact that Holcomb learned
of the Union's drive from Don Beard, and the fact that
Turner had told Beard that he (Turner) favored the Union.
Since Holcomb admittedly knew more about employees'
support for the Union than he admitted hearing from Beard
(i.e., among other things that Ashley was the employee who
' The General Counsel's motion to close record, with attached stipulation,
and my June 7 order receiving stipulation and cloaing record are hereby
ordered marked as A. L. J. exh. I and 2, respectively. I have administratively
directed that those exhibits be bound in an exhibit file and furnished to the
Board in conjunction with the transcripts and exhibits received at the hearing,
all pursuant to the attached order transferring proceeding to the National
Labor Relations Board.
" Crediting Turner's uncontradicted testimony concerning the December 8
meeting with Holcomb. All findings hereafter regarding conversations
between Turner and Holcomb are based on Turner's undisputed versions.
was "pushing the Union"), it is reasonably inferrable that
Holcomb had also learned of Turner's involvement at least
by the time that he approached Ashley on the warehouse
dock on November 3. There is no question that Holcomb
knew of Turner's prounion stance at least as of December 8,
since he acknowledged that awareness during a conversation
on that date with Turner discussed further below.
4. Turner learns that his appliance department job will
be terminated
On December 6, Turner was summoned by Holcomb, and
the two went together to the office of Production Coordina-
tor Beddo, who was present during the ensuing conversa-
tion. Holcomb told Turner that Respondent's board of
directors had decreed that the appliance department would
be shut down and that Turner's job in that department
would be "terminated" at the end of the year. Holcomb held
out hope that he "might have a job for [Turner]," but did
not then disclose any particulars.' Holcomb also explained
to Turner, in again turning down the latter's request to
transfer to a construction position, that Respondent's board
had told him to "cut the costs."
On December 8, Turner again sought out Holcomb in the
latter's office and pressed his request to be transferred to a
construction position. Holcomb again refused, saying that
Respondent's board had told him that he had to cut costs
and that Respondent did not need any help on construction.
Turner asked if the other appliance serviceman, Bradley,
would have a job. Holcomb replied that it was not any of
Turner's business, but that Bradley would continue to have a
position. Holcomb again told Turner that if a certain
unnamed man would make up his mind whether he was
going to quit Respondent's employ that Turner could have
that job. Turner argued that Ashley had told him that three
or four men were needed on construction. Holcomb won-
dered aloud whether Ashley "was trying to run this place,"
and the matter was dropped. At the conclusion of their
meeting, Turner asked Holcomb whether he was being fired
for his union activities. Holcomb said that he was not.
Turner pursued the point, saying, "Well, you know, I'm in
favor of the union activity." Holcomb replied that he knew
this, adding that if the Union did succeed, "it wouldn't keep
[Turner's] job or no man's job if the work played out."
On December 20, Turner wrote to Holcomb repeating his
request for transfer to any service or construction vacancies.
After Turner's termination effective December 31, the
appliance department remained in existence with Bradley as
its sole employee; but, true to the policy declared by
Respondent's board in the preceding June, the sale and
'' At the hearing, Holcomb explained that one of his employees had asked
for a "six months vacation" to look into another job. Holcomb refused this
request, but evidently gave the employee in question some time to make up his
mind whether to stay on or quit to take the other job. Holcomb credibly
testified that this situation prompted him to suggest to Turner that there
might be a vacancy into which Turner could transfer. The employee later
elected to keep his job with Respondent, as Holcomb explained it, thereby
nullifying the only possibility to retain Turner after his appliance job became
terminated.
582
HOUSTON COUNTY ELECTRIC COOPERATIVE, INC.
service of household appliances has been eliminated. On
January 17, 1979," Turner again wrote to Holcomb,
expressing his continued desire to work for Respondent,
suggesting further that he would consider a reduction in pay
should any positions become available, so long as the pay
were commensurate with his "skills, ability, and length of
service as a faithful employee ... ."
At no time since the Union began organizing Respon-
dent's employees to the point of the hearing herein has
Respondent hired any employees in any positions for which
Turner might have qualified." Indeed, all parties acknowl-
edge that Respondent's construction and service force has
declined over the past few year," and that certain positions,
such as that of groundman for construction crews, have been
left empty when they became vacant by attrition.
!II. ANALYSIS AND CONCLUSIONS
A. Alleged Discriminatory Discharge of Turner
From the foregoing, it is evident that Turner's union
activities were neither conspicuous nor extensive. While
Holcomb may have been aware of them, as found above,
there is no evidence that he regarded Turner as the key
organizer. To the contrary, he believed that Ashley played
that role. There is no evidence of discrimination against
Ashley, however.
The hiring of Hollister in September at the helper's rate of
S3.15 per hour and after Turner had removed himself from
standby duty is no longer contended by the General Counsel
to have amounted to a discriminatory bypassing of Turner
for a construction position-it now being clear that this did
not occur, as Turner had mistakenly recalled, after the
Union's advent. The relevance of those events to the General
Counsel's case, therefore, is minimal. One factor about those
events which seems to me worthy of note, however, is that,
in their September conversation resulting in Turner's remov-
al from standby duty, Holcomb made it rather plain that he
did not regard Turner as the more valuable of the two
appliance department employees. Thus, he refused Turner's
request to achieve wage parity with the other appliance
department employee, Bradley. In addition, Holcomb re-
fused Turner's request for transfer to a construction posi-
tion. In short, Holcomb was "on record" in a fashion, well
before the Union's advent, in taking the position that
appliance employee Bradley enjoyed greater favor than
Turner. Likewise, well before the Union's advent, Holcomb
had resisted Turner's desire for a transfer to construction
work.
The General Counsel nevertheless argues that Respondent
discriminated against Turner by failing to keep Turner in the
appliance department in preference to Bradley, and/or by
failing to reassign Turner to a construction or service
department position. Both arguments are rejected as wanting
in proof.
As to the retention of Bradley over Turner for the
appliance department, Respondent's defense was credible
" Turner's letter was erroneously dated January 17, 1978, as he acknowl-
edged, at the time of the receipt into evidence of 0. C. Exh. 4(a).
Specifically, there was no proof that anyone had been hired in any
capacity during that approxinmately 6-7 months.
Holcomb credibly testified that Respondent's overall employment
complement had dropped from a high of 72 to 68 at the time of the hearing.
and unrebutted. In short, Respondent maintains that Brad-
ley was retained because he was senior to Turner and,
indeed, was only I year short of qualifying for retirement.
While Turner's account of his own duties in the appliance
department showed that Turner believed that he had more
demanding responsibilities than Bradley,'" this account was
tinged with self-interest and is not conclusive on the
question. More important, however, is the fact that, rightly
or wrongly, Holcomb believed Bradley to have been more
valuable to Respondent than Turner as is evidenced by his
refusal in September to raise Turner's hourly pay to the rate
enjoyed by Bradley.
Neither is there any evidence that, unlike Turner, Bradley
may have enjoyed preferential status because he did not
support the Union. If it were necessary to do so, I would find
that Bradley favored the Union. Thus, Turner testified that
Bradley was one of the employees to whom he gave a union
authorization card. If Bradley had failed to sign it, I would
have expected the General Counsel to establish that fact as
part of his case that Turner was discriminated against by the
preferential retention of Bradley in the appliance depart-
ment." The lack of any such proof invites the contrary
inference-that Bradley was one of the many supporters of
the Union during the organizing drive.
Accordingly, the record as a whole does not preponderate
in favor of the theory that the retention of Bradley in
preference to Turner was motivated by the latter's union
activities.
As to the alleged discriminatory failure to reassign Turner
to a construction or service position, the record fails to show
there have been any persons hired in such capacities. Simply
put, there is nothing in the record demonstrating that there
were vacant jobs for Turner at any point after he was
informed that his appliance job was to be terminated. As
against this rather obvious hurdle, the General Counsel
argues that there has been a continuing need for additional
help. In this regard, the General Counsel relies on the
testimony of construction employees who acknowledged
that their crews have been chronically short-handed. The
difficulty with relying on this evidence to support an
antiunion discrimination case is that it proves too much.
Respondent's understaffing in the construction area (if it
may be so regarded) has been a longstanding and chronic
problem which predated the Union's organizing drive. Thus,
we are not here presented with a case where the inference of
discrimination arises due to an employer's failure to fill job
vacancies in the midst of a union organizing drive where the
past practice was to fill vacancies promptly upon their
coming into existence.
Due consideration has been given to Holcomb's statement
to more than one employee during the Union's campaign
that Line Superintendent Pace had failed to follow through
on instructions to hire additional construction help. It is
found below, however, that these remarks were part of an
unlawful attempt on Holcomb's part to promise improve-
ments in conditions about which employees were complain-
ing in an effort to defuse the organizing effort. So viewed,
" Essentially because Turner handled more paperwork than Bradley. But
those paperwork duties were shown to have been quite routine and simple.
" Whether Bradley was a card-signer was information possessed by the
Union, whose representative appeared at the hearing.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they do not in and of themselves constitute proof that
Respondent, in fact, had additional work opportunities
available which it was prepared to fill promptly. Keeping in
mind that more than 6 months elapsed after Holcomb made
the above-noted remarks without hiring additional construc-
tion help, it appears that Holcomb was simply attempting to
mislead complaining employees into believing that relief was
in sight on one of their major complaints and that,
accordingly, they need not pursue union representation.
Holcomb's statement on or about November 3 to Ashley,
during which he vaguely alluded to the possibility that
Turner might not be around by the time that Respondent's
new building was completed, does not show persuasively
that Holcomb intended to rid himself of Turner because of
the latter's union activities. Those remarks could just as
readily mean that Holcomb believed that Turner's position
was in jeopardy due to the planned curtailment of the
appliance department's operations. If any lack of sympathy
on Holcomb's part toward Turner may be inferred from the
tone and context of his remarks to Ashley, it is just as
inferrable that such an attitude stemmed from Turner's
behavior in resigning from standby duty-a gesture which
might trigger Holcomb's resentment because it created
another administrative headache-the need to find someone
else to take Turner's place on the standby roster.
Finally, I give no weight to the testimony of Ashley, that
"about a month" before the hearing herein (and well after
the complaint had already issued) he overheard a supervisor
named Krenek tell another employee (whose identity Ashley
could not recall) that no one would be hired until the Turner
case was "settled." In one account of this overheard
conversation, Ashley stated that Krenek was attributing this
policy to Line Superintendent Pace. On cross-examination,
Ashley retreated, acknowledging that he did not know to
whom Krenek was attributing this policy. These overheard
post-complaint remarks are too vague and unreliable to
support a finding that Respondent had adopted a policy of
deferring hires until after the conclusion of the Turner case. '
Even if such a finding were made, it would not require the
inference that Respondent failed to find a job for Turner
because of his union activities. Respondent failed to find a
job for Turner because of his union activities. There is
simply too much indication in the record that, if Holcomb
harbored any resentment at all towards Turner, it derived
from Turner's refusal to continue on standby duty unless he
were either granted a raise or were transferred to a
construction position. To repeat, those activities and events
preceded the union campaign.
In summary therefore, the General Counsel has not
demonstrated that there were jobs available for Turner to
which he would have been reassigned but for his union
activities. It is therefore recommended that the 8(a)(3)
portion of the complaint be dismissed.
" Turner's case could not be regarded as "settled" at least until the
conclusion of this litigation and the issuance of this decision. I do not believe,
contrary to the General Counsel's suggestion, that Respondent would adopt a
policy of failing to fill needed positions for well over 9 months simply to avoid
hiring a person known to have played a marginal role in the Union's
organizing efforts.
B. Alleged 8(a)(l) Violations
Holcomb's admitted conversations with Ashley, Jenkins,
and Ingle, as reported above, each involved one or more
statements which impermissibly tended to interfere with,
restrain, or coerce employees in the exercise of Section 7
rights.
All three conversations involved interrogations about
employees' union activities. In Ashley's case particularly,
Holcomb persisted in grilling Ashley even after Ashley
sought to divert Holcomb's efforts by temporarily feigning
lack of knowledge." Moreover, Holcomb's efforts included
questioning Ashley about the reasons why employees were
dissatisfied enough with conditions to be seeking union
representation, as well as suggesting that the employees
bargain with Holcomb directly. In the absence of any history
of a policy of periodically soliciting employees' job-related
complaints (and none was shown herein), such "grievance
solicitation" activity as that involved in the Holcomb-Ashley
meeting, occurring in the midst of a union campaign,
inherently constitutes an implied promise to remedy the
employees' grievances and violates Section 8(a)(1). See, e.g.,
First Data Resources, Inc., 241 NLRB 713 (1979), and cases
cited at 723. Cf. Uarco Inc., 216 NLRB 1, 2 (1974).
In the Holcomb-Jenkins conversation, Holcomb's state-
ment that the traditional work schedule would be modified
to the employees' detriment if the Union were to become the
employees' representative constitutes a classic threat to
retaliate against employees for selecting union representa-
tion.
As to the alleged violations of Section 8(a)(l), Respondent
argues essentially that Holcomb's union-related conversa-
tions with employees were isolated, as well as "friendly" and
noncoercive in tone. This position is rejected. Far from being
"isolated" phenomena, they were repeated on several occa-
sions and apparently were part of a pattern of behavior by
Holcomb at least until restrained by Respondent's counsel
after the receipt of the Union's petition. While, as several
employees acknowledged, Holcomb's tone in raising these
subjects was "friendly," it does not follow that his remarks
were noncoercive. I find that, regardless of Holcomb's vocal
tone, his persistent questioning of employees about their
union activities, coupled with implied promises to resolve
grievances if employees abandoned the Union and an explicit
threat to detrimentally change the work schedule if the
Union became successful, was inherently coercive of the
right to engage in union activities guaranteed in Section 7 of
the Act and thereby violated Section 8(a)(1). It is hereafter
recommended that the Board order Respondent to cease and
desist from like and related activity and to post an
appropriate notice to employees.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, through Holcomb, in
interrogating employees about their union activities, and
'' Holcomb's statement to Ashley, after Ashley finally admitted that he was
involved in the union activities then in progress, that Holcomb knew that
"there were others involved," also unlawfully created the impression that
Holcomb had employees' union activities under surveillance.
584
HOUSTON COUNTY ELECTRIC COOPERATIVE, INC.
seeking to dissuade them from supporting the Union by
devices such as promises of benefits and threats of reprisal,
occurring in connection with Respondent's operations de-
scribed above, have a close, intimate, and substantial
relationship to commerce among the several States and tend
to lead, and have led, to labor disputes burdening and
obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interrogating employees about their union activities,
creating the impression that those activities were under
surveillance, soliciting and impliedly promising to remedy
employees' grievances if they would abandon the Union, and
threatening to change working conditions to employees'
detriment if they were to select the Union as their bargaining
representative, Respondent violated Section 8(a)1) of the
Act.
4. Respondent did not violate Section 8(aX 3) and (1) of
the Act by terminating employee Larry Turner and by
failing to find another position for Turner when his
appliance department job became redundant.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to cease
and desist therefrom, and that it take certain affirmative
action to effectuate the policies of the Act, including the
posting of a remedial notice to employees and compliance
with its provisions.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER2 0
The Respondent, Houston County Electric Cooperative,
Inc., Crockett, Texas, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Questioning employees about their union activities,
seeking to create the impression that those activities are
under surveillance by Respondent, soliciting and promising
through express or implied means that employees' griev-
ances will be resolved if they abandon support for the Union,
and telling employees that they will suffer more onerous or
disagreeable working conditions should they select union
representation.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its Crockett, Texas, facility copies of the
attached notice marked "Appendix."2 ' Copies of said notice,
on forms provided by the Regional Director for Region 16,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken to ensure that said notices are not
altered, defaced, or covered by any other material.
(b) 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 therewith.
2O 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.
" 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 Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APFENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity to
present evidence and make arguments, it has been found that
we violated the National Labor Relations Act in certain
ways. We have been ordered to post this notice and to
comply with the assurances made below in order to remedy
our violations of that Act.
Section 7 of that Act gives employees the right to form,
join, or assist unions and to engage in other concerted
activity for their mutual aid and protection, or to
refrain from any or all such activity except where that
right has been limited by a lawful union contract
requiring employees to become or remain union mem-
bers after a certain grace period. We hereby assure our
employees that:
WE WILL NOT interrogate or question employees
about their union activities.
WE WILL NOT create the impression that we are
spying on or keeping track of the union activities of our
employees.
WE WILL NOT promise employees benefits, such as
acting favorably on their grievances, in order to
discourage employees from engaging in union activities.
WE WILL NOT threaten to change work schedules or
otherwise remove or change existing terms and condi-
tions of employment in order to discourage our employ-
ees from engaging in union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by the Act.
HOUSTON COUNTY ELECTRIC COOPERATIVE,
INC.
585