Irwin County Electric Membership Coop.

National Labor Relations Board - Board Decisions

Feb 22, 1980

247 N.L.R.B. 1357 (N.L.R.B. 1980)

IRWIN COUNTY ELECTRIC MEMBERSHIP COOPERATIVE
Irwin County Electric Membership Cooperative and
International Brotherhood of Electrical Workers,
Local 84. Case 10-CA-14330
February 22, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On November 6, 1979, Administrative Law Judge
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting 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, Irwin County Electric
Membership Cooperative, Ocilla, Georgia, its officers,
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.
' 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 Products. 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.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with
suspension for engaging in union activities.
WE WILL NOT maintain or enforce any rule or
regulation prohibiting our employees from solicit-
ing on behalf of any labor organization on our
premises during nonworking time, or prohibiting
the distribution of union literature in nonworking
areas during employees' nonworking time.
WE WILL NOT discharge, refuse to reinstate, or
otherwise discriminate against our employees
because of their membership in, sympathies for,
or activities on behalf of the International Broth-
erhood of Electrical Workers, Local 84, or any
other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL rescind our policy bulletin no. 81,
which has been found unlawful.
WE WILL offer immediate and full reinstate-
ment to Allen Latham to his former job or, if that
job no longer exists to a substantially equivalent
job without prejudice to his seniority and other
rights and privileges and WE WILL make him
whole for any loss of pay or other compensation
he may have suffered by reason of our discrimina-
tion against him, with interest.
IRWIN COUNTY MEMBERSHIP COOPER-
ATIVE
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge: This
case was heard in Ocilla, Georgia, on July 24, 1979,'
pursuant to a charge filed by the International Brotherhood
of Electrical Workers, Local 84 (herein referred to as the
Union) on January 22, and a complaint issued on February
27.
The complaint alleges Irwin County Electric Membership
Cooperative (herein referred to as the Respondent) violated
Section 8(a)(1) of the National Labor Relations Act, as
amended (herein referred to as the Act) by maintaining and
enforcing a rule prohibiting its employees from discussing
the union and soliciting union membership during employ-
ees' nonworking time, prohibiting them from distributing
union literature in nonwork areas during employees' non-
work time, and by threatening its employees with suspension
if they engaged in activities on behalf of the Union. It further
alleges Respondent violated Section 8(a)(1) and (3) of the
Act by discriminatorily discharging and refusing to reinstate
employee Allen Latham because of his union membership
and activities and because he engaged in concerted activities'
All dates referred to are in 1979, unless otherwise stated.
The General Counsel defined the term "concerted activities" to encompass
only union activities
247 NLRB No. 195
1357
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with other employees for the purposes of collective bargain-
ing and other mutual aid and protection.
Respondent in its answer served on March 1, denies
having violated the Act as alleged.
The issues involved are whether Respondent violated
Section 8(a)(1) and (3) of the Act as alleged by maintaining
and enforcing an unlawful no-solicitation, no-distribution
rule, unlawfully threatening its employees with suspension,
and discriminatorily discharging and refusing to reinstate
Allen Latham because of his union membership and activi-
ties.
Upon the entire record in this case and from my
observations of the witnesses and after due consideration of
the briefs filed by the parties, I hereby make the following:'
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Georgia corporation with an office and
place of business located at Ocilla, Georgia, is engaged in the
business of operating a utility providing electricity. During
1978, a representative period, Respondent in the course of its
operations received revenues in excess of $250,000 for
providing electricity to customers and purchased and re-
ceived goods and materials, valued in excess of $50,000,
directly from suppliers located outside the State of Georgia.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE I.ABOR ORGANIZATION INVOL.VED
International Brotherhood of Electrical Workers, Local
84 is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent has a facility located at Ocilla, Georgia,
where it is engaged in operating a utility providing electric-
ity. Included among its supervisory personnel are Manager
W. B. Roberts, Line Superintendent Willie Wilkes, and
Operations Supervisor James Deberry.'
Respondent is comprised of approximately 7,000 members
who are also its owners and consumers. It is governed by a
nine-member board of directors elected by the members for
3-year terms. Manager Roberts, who is hired by the board of
directors, is responsible for operating the facility and
carrying out the policies established by the board of
directors.
There are approximately 30 to 34 employees employed by
Respondent. Eighteen of them in a unit comprised of outside
operating personnel are represented by the Union which won
a Board conducted election held on October 20, 1978.
Unless otherwise indicated, the findings are based upon the pleadings,
admissions, stipulations, and undisputed evidence contained in the record
which I credit.
B. The Unlawful No-Soliciralion, No-Distribution Rule
On January 5, Allen Latham, a member of the Union's
negotiating committee, approached two employees,
Byrd and Jimmy McFadden, who were in the alley located
next to Respondent's office and used as a company parking
lot and asked them whether they would like to have copies of
the Union's contract proposal to read. They both agreed,
whereupon he gave them copies. Latham also told them if
they wanted to help themselves in the future they needed to
stick with the employees who were for the union. This
conversation occurred about 5 p.m. which was after Latham
got off work that day.
The next morning shortly after Latham began work he
was called into the director's room by Superintendent
Wilkes and Supervisor Deberry and read Respondent's
policy bulletin 81 regarding solicitation and distribution
which provides as follows:
Effective immediately solicitation of personnel or distri-
bution of literature, pamphlets, tracts, or other hand-
outs to Co-op personnel on the premises of the Co-op
headquarters is prohibited without the expressed ap-
proval of the manager.'
Latham was also asked by Wilkes to read the policy which
he did.
Latham testified that after reading it Wilkes said he had a
job to do and for Latham not to feel mad at him. Whereupon
he replied that Carlton Smith, Lamar Watson, and himself
were on the negotiating committee representing the employ-
ees and they also had a job to do and would do it.
Latham further testified that Wilkes, who primarily did
the talking with Deberry, agreed with him and told him they
did not know what he was trying to get Byrd and the
employees to vote for him for or what he was running for,
but it had better come to a halt. They also told him if they
even heard him mention the word "union" or caught him
handing out pamphlets or anything involving the union he
would be terminated for one week without pay even if it was
on or around company premises. Upon asking them to
define the term "company premises" Wilkes replied it
included the alleys all the way around the premises and the
building itself.
Wilkes acknowledged that after reading the policy to
Latham he told him if he did it again he would be layed off
for 3 days without pay and reprimanded. He stated that he
was directed to read the policy to Latham by Manager
Roberts, who informed him the previous day that he had
been told that Latham had been passing out pamphlets and
soliciting votes while taking inventory.
According to Deberry, Wilkes warned Latham about
distributing material and talking union on the company
premises as a result of Latham having distributed material in
the parking lot to Byrd and perhaps other employees the
previous day. Deberry was unable to recall exactly what
Wilkes told Latham except that it was about soliciting and
handing out leaflets and pamphlets on the premises of the
' Both Wilkes and Deberry are admitted as being supervisors under the Act.
· The policy contains the approval date of February 21, 1968.
1358
IRWIN COUNTY ELECTRIC MEMBERSHIP COOPERATIVE
Respondent during working hours and said that he could be
suspended without pay for 3 days if he did.
Both Wilkes and Deberry denied they had observed
Latham giving out the Union's proposals in the alley the
previous day.
Manager Roberts acknowledged on January 5 or 6 it was
brought to his attention Latham was in the parking lot
soliciting employees and distributing literature. According
to Roberts, that afternoon Deberry had given him some
notes made by the supervisors of employees taking inventory
that Latham had contacted an employee during the day and
as employees were returning that afternoon from their jobs
and were lined up at the gas pump, one of the employees
went to the platform and was given some literature by
Latham.
Roberts testified that he instructed Wilkes to tell Latham
to cease his activities and to show him policy bulletin 81
because he felt tensions were running pretty high, and he
was afraid it may cause trouble. Roberts explained this to
mean the after effects of what had happened in October and
said there were mixed emotions among some of them.
Supervisor Deberry held a meeting of the employees of the
right-away-crew.' Deberry placed the meeting as occurring
on January 6 after he and Superintendent Wilkes had talked
to Latham earlier that day while James Ray, a former
employee who was a member of the crew at the time, placed
it as occurring the second week of January on a Friday.
Ray testified that at this meeting Deberry, who read from
notes, told them they were not to engage in the distribution
or receipt of any kind of literature on company time and
premises, or they would be subject to a layoff for a week, or
it could be permanent.
Deberry stated he told them not to be passing out
literature or accepting literature on company premises
during working hours.
I credit the testimonies of Latham and Ray, acknowl-
edged in part by Wilkes and Deberry, about what was said
during these conversations. Further their testimonies are
consistent with the rule itself.
C. Events Preceding and Latham's Discharge
Allen Latham was employed by Respondent from Septem-
ber 9, 1972, until his discharge on January 19. During the
last year of his employment he worked as a service lineman
under the supervision of Superintendent Wilkes." His duties
included, inter alia. disconnecting and reconnecting service
to delinquent accounts.
Latham's union activities consisted of signing a union
authorization card, soliciting other employees to sign such
cards, attending union meetings, and as noted above, serving
as a member of the Union's negotiating committee. Prior to
his discharge he attended one negotiation meeting which was
attended by Manager Roberts and the members of the
Respondent's Board of Directors.'
About a week prior to the Board-conducted election held
on October 20, 1978, Latham had a conversation with
° The supervisor did not testify.
There were eight employees on the crew.
'Superintendent Wilkes described Latham as being a good employee.
' Manager Roberts acknowledged that he was aware Latham was on the
Union's negotiating committee.
Manager Roberts about the union. This conversation oc-
curred on company premises, but after the work hours of
Latham, who was working on his personal vehicle at the
time. Roberts initiated the conversation by mentioning to
Latham he guessed Latham knew he was going to get
around to him sooner or later. After Roberts indicated he
wanted to talk about the union, Latham informed him he
was told he did not have to talk to him. Latham testified
Roberts then said he was on company premises and if he did
not feel like he could talk to him he could come into
Superintendent Wilkes' office and pick up his check. Upon
telling Roberts it was after company hours, Roberts in-
formed him he could bet his bottom dollar he would arrange
it to be on company time.'"
Roberts denied mentioning to Latham any discipline
would be taken against him stating that he only told Latham
he was on his own time and didn't have to talk to him but
said that if he wanted to talk to him on company time he
could.
I credit Latham rather than Roberts and find that on
about October 13, 1978, Manager Roberts impliedly threat-
ened Latham with discharge for refusing to discuss the union
with him after work hours. Apart from my observations of
the witnesses in resolving credibility, Roberts' testimony on
other matters did not appear plausible.
On the afternoon of January 8, Latham went to the home
of consumer Richard Dunlap to cut off the electricity
because of a delinquency notice furnished to Latham by
Respondent showing Dunlap's bill had not been paid.
Although Dunlap's sons, who were home at the time,
advised Latham that the bill had been paid they had no
proof to show it had been paid. Latham stated that he then
contacted Sandra Morris at Respondent's office who advised
him pursuant to his inquiry she ran the bill through the
computer at his request which showed it had not been paid.
Morris then furnished him with the total amount due
whereupon he cut off the electricity.
Respondent's policy for disconnecting service to a con-
sumer as described by Latham and E. T. Fuller, who is
Respondent's president and a member of the board of
directors, is that if the consumer for whom the serviceman
has been given a delinquency notice is unable to show at the
time the serviceman goes to the home to cut of the electricity
proof from Respondent's office the delinquent bill has been
paid the serviceman furnishes the office with the current
meter reading, obtains the total amount of the bill due from
the office, and disconnects the electricity. The fact that a
consumer promises to pay the bill is not sufficient to prevent
cutting off the service. According to Latham he follows
these policies.
That same evening Latham, while Latham and James
Ray, who were both working standby and were in their
separate trucks, received a call on his truck radio from
Manager Roberts. Roberts informed him that one of the
directors had called him and said that he had been contacted
and felt that Dunlap's bill had been paid and when he
checked it out in the morning if it had not been paid he
"' This testimony was offered as evidence by the General Counsel only for
the purpose of establishing union animus and company knowledge of
Latham's union activities and was not alleged in the complaint.
1359
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would pay it. Roberts then instructed Latham to cut
Dunlap's lights back on without collecting any money which
he agreed to do.
Although Roberts stated he mentioned the name of the
director who called was Lorie Walters, Latham denied
Roberts mentioned the director's name. Ray, who overheard
the conversation on his truck radio, corroborated Latham's
testimony.
According to Roberts, Lorie Walters had called him early
that evening and asked if he would have Dunlap's lights
turned on and to check it out to see if the bill had been paid.
Roberts stated that Walters was at the home of Noland and
was in a position where the people felt sure the bill was paid
and guaranteed the payment of it whereby Roberts stated
that this constituted payment as far as he was concerned.
Lorie Walters acknowledged making such a request of
Roberts. Walters testified that evening while at the home of
Lawton Noland, Richard Dunlap, who worked for Gary
Noland who was Noland's son, had contacted Noland about
getting his electricity back on. Walters stated Dunlap
convinced him his bill had been paid and told him Gary
Noland had told him it had been paid prior to his leaving
town. Walters also stated he felt a little obligated since his
own son and Gary Noland were away at the time attending
the University of Georgia. Walters acknowledged he had no
definite proof Dunlap's bill had been paid and that it would
violate company policy not to cut the power off.
Latham, acting on Roberts' instructions, returned to
Dunlap's house and reconnected the power. Dunlap, who
was home at the time did not mention to Latham the bill had
been paid.
Latham filled out his interruption report for the work
performed at Dunlap's home and turned it in to the office.
This report dated January 8 provides in pertinent part the
cause of the outage was as follows:
He was cut off for non-payment. I had to go set his
meter, without collecting the money. W. B. Roberts
told me to, because a director had called him."
The following morning, January 9, prior to beginning
work, Latham was in the director's room where employees
and supervisors usually gathered to have coffee, read the
newspaper, or have discussions among themselves. Among
those persons present on that occasion were employees Billy
Purcell, Lamar Watson, Clarence Mobley, Latham, Superin-
tendent Wilkes, and Supervisor Deberry.
Latham testified, after some of the employees present
mentioned cutting off and reconnecting service to a consum-
er, said he cut a fellow on through politics the previous
night. When Mobley asked him what was wrong with that
he replied that they broke company policy which states
when a person's service has been disconnected he has to pay
in full before he can be reconnected. Latham mentioned he
had also cut off five or six other people that week and asked
Mobley if he was going to tell him it was right to leave those
people out in the cold and dark with no water and cut this
one fellow on just because politics played a part in it, adding
if its fair for one it should be fair for all of them. Latham
further testified that after Mobley replied he guessed so and
" Superintendent Wilkes acknowledged the report itself was factually
correct.
left the room, somebody asked him what happened where-
upon he said that he got a call from Manager Roberts who
told him a director had told him to tell Latham to go cut it
back on which he did.
Both Lamar Watson and Billy Purcell corroborated
Latham's testimony and Purcell further stated he also told
Latham he thought he was right.
Superintendent Wilkes testified he heard Latham say
politics got another one cut on last night and mentioned
Lawton Noland had called Lorie Walters and Walters had
called Roberts and told him to have Dunlap's lights cut on.
Supervisor Deberry's version was Latham mentioned he
had cut on Richard Dunlap's electricity the previous night
and politics played a big part in the connection. Latham said
he had been notified by Roberts who had been notified by a
director to cut Dunlap's lights back on.
Clarence Mobley, called as a witness by Respondent,
stated Latham said he had cut off Dunlap's lights and that
Dunlap had called Lawton Noland who talked to one of the
directors and Latham said through politics he had to go and
cut him back on without the money. Mobley stated when he
asked Latham who the director was that Latham said he did
not know.
Wilkes, Deberry, and Mobley all stated it was Latham
who brought up the subject of reconnecting a member's
power.
Shortly after work began that morning, Mobley stated
Latham repeated in his presence to Forrest Whitley in
Whitley's office the same statement he had made in the
director's room. However, while Whitley on direct examina-
tion first stated Latham commented to the effect politics had
played a role in cutting a meter on the night before, under
cross-examination he denied Latham used the word "poli-
tics" and had only said that he set a meter back last night
that Roberts had him to set back without the bill being paid.
Latham denied repeating his statement about politics in
Whitley's office and I credit his denial. Besides my observa-
tions of the witnesses in discrediting Whitley and Mobley,
they contradicted each other's testimony about the incident.
Dunlap's bill had been paid on January 2, Roberts, who
stated he first discovered this on January 9, acknowledged
the office girl had made an error in informing Latham it had
not been paid.
While Roberts stated on January 9 that he mentioned to
Latham the bill had been paid, he said that Latham's back
was towards him at the time and maybe Latham heard him.
Latham did not recall Roberts telling him it had been paid.
However, that afternoon, while riding in Superintendent
Wilkes truck, Wilkes told Latham Dunlap's bill had been
paid. According to Wilkes after Latham made the statement
in the director's room that morning he had checked with the
girl in the front office who informed him Latham should not
have cut off the power because the bill had been paid.
On January 17 the regular monthly meeting of Respon-
dent's board of directors was held. Manager Roberts who
routinely attends such meetings was present. Both Roberts
and President Fuller testified certain policies including
Respondent's policy bulletin 22 dealing with employee
conduct were discussed. Roberts' recollection of the discus-
1360
IRWIN COUNTY ELECTRIC MEMBERSHIP COOPERATIVE
sion was that Fuller mentioned he heard about somebody
out politicing against the board or something, but no names
were mentioned. Roberts acknowledged nothing was
brought out about employees criticizing management.
President Fuller stated what prompted the discussion of
policy bulletin 22 was it had been brought to his attention
that some of their employees had said they were going to get
the manager and were going to pick off three directors each
year until they had a new board which he described as
political talk about replacing the incumbent board members.
According to Fuller, since every member they serve is a
owner he did not want any director or employee going out
and criticizing what the board of directors or management
was doing and it getting out to the public and getting them
upset since their organization always tried to treat everyone
exactly the same. Fuller denied being aware at the time
Latham had any statement about politics.
Although Fuller under cross-examination acknowledged
he knew the identities of some of the employees who had
made such statements and were still employed by Respon-
dent, none of those employees were disciplined or dis-
charged.
Both Fuller and Roberts stated Roberts was told at the
meeting to enforce all the policies.'
Under cross-examinations Roberts acknowledged he is
under continuing instructions to carry out Respondent's
policies and has been reminded of it at about every meeting.
Roberts testified on the afternoon of January 18, Superin-
tendent Wilkes showed him the interruption report Latham
had filled out on the Dunlap matter on January 8 set forth
supra. which he read and at which time Supervisor Deberry,
who was present, told him about the statement Latham had
made in the director's room on January 9. Wilkes also told
him he had heard it and Forrest Whitley came over from the
adjorning office and told him the same thing. Roberts stated
he then went and got his pad and wrote down what they said
at which time Mobley also informed him what he knew
about it.
Superintendent Wilkes, Supervisor Deberry, Whitley, and
Mobley corroborated Roberts' testimony.
According to Roberts this was the first knowledge he had
about the statement Latham had made in the director's
room on January 9.
Both Superintendent Wilkes and Supervisor Deberry
explained at the hearing they did not report it to Manager
Roberts sooner because of the upcoming board of directors'
meeting held on January 17 which Roberts was preparing
for. Deberry stated he felt Manager Roberts had enough
going at the time and Wilkes stated he did not want to add
to Roberts' burden.
Roberts stated he then instructed Superintendent Wilkes
to terminate Latham the following morning based upon
what he thought was a violation of policy bulletin 22 for
criticizing the function of management. He made the
decision because he felt like Latham was personally attack-
ing him by making the statement that he was playing politics
by having people cut back on.
Roberts testified in reaching his decision he also consid-
ered several other of Respondent's policies. This included
,' According to President Fuller there are about 86 policies contained in
Respondent's policy book.
bulletin 12 which dealt with the board of directors' manager
relations because it gave him the authority to make the
independent judgment in terminating Latham. The other
policies were bulletin II which dealt with the board of
directors policy bulletin 5 which dealt with activities in
membership elections and policy bulletin 57 which dealt
with procedures implementing board policies. These last
three policies as described by Roberts dealt with member
relations and were considered in his decision because he felt
there would be a deterioration of their public relations with
their members if he allowed someone to go around making
statements like that because of members' suspicions they
were favoring some people more than others would upset
them. Roberts also stated he felt that if Latham got away
with criticizing him then others would try it also. While
Roberts said he did not consider the interruption report
itself as an attack on him he expressed his belief it did not
need all the detailed explanation.
Latham was discharged on the morning of January 19.
On that occasion Latham was called into the director's
room by Superintendent Wilkes who asked him whether he
remembered the remark he made about politics getting the
lights cut back on. Upon replying he did, Wilkes told him he
was being terminated for that reason. During the conversa-
tion which continued in Superintendent Wilkes' office after
Latham went and got Lamar Watson to represent him,
Latham was read and given his separation notice dated
January 19 which contained the following reason for his
discharge: "Criticizing the function of Management."
Wilkes also gave him a copy of the interruption report on
the Dunlap incident and a copy of policy bulletin 22" and
read paragraph 7 to him which provides as follows:
Employees shall refrain from criticizing or questioning
the functioning of the Board of Directors, Management,
Supervisors, or personnel of other Dpartments.
Superintendent Wilkes testified he discharged Latham on
instructions by Roberts who told him to read Latham
paragraph 7 of policy bulletin 22.
Latham, James Ray, and Lamar Watson all denied having
any prior knowledge of a company policy against criticizing
management. While Forrest Whitley first denied having any
knowledge of such a policy he subsequently stated he that
had been told they better watch their tongue because they
had bylaws against talking about management. However, he
admitted he had never seen such bylaws.
The Respondent proffered no evidence to show that its
policy bulletin 22 had ever been shown to the employees
before or that they had been informed of its contents.
Respondent's records reflect it had never previously
terminated employees for criticizing management.
Manager Roberts denied, prior to Latham's discharge,
any employee had ever accused him or anyone else of
politicing with members. Except for passing remarks he said
he heard once in a while which he would evaluate, he denied
hearing any other employee besides Latham criticizing
management.
Lamar Watson testified on one occasion several years ago
Superintendent Wilkes made the statement that employee
" This policy was approved on February 17, 1960.
1361
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jerry Mixon, who had quit work, had called him a "fat
s.o.b." and said he would never work there as long as Wilkes
was there. However, Mixon subsequently returned to work.
Watson also testified about a 1-1/2 years prior to the
hearing held on July 24, Roberts held a meeting of the
outside employees and told them some of them had come to
him about Foreman Tommy Phillips' drinking." Roberts
said that he did not want to hear anything else about it
because what Phillips did on his own time was his business.
Manager Roberts acknowledged holding such a meeting
but stated that it was because of gossip he had gotten about
Phillips' life style.
Watson further testified about 2 to 2-1/2 years prior to
the hearing held on July 24 his crew set an antenna for a
minister and set some basketball goals at the minister's
church. Watson stated Foreman Phillips informed him,
pursuant to his inquiry, they were not charging the minister
to set the antenna poles. While Watson stated other
employees in the crew said other people had asked to have
poles set for them and they would not, he acknowledged
they were just talking as a group and were not criticizing.
According to Manager Roberts they set poles for anyone
who asks and customers are always charged the same.
While Forrest Whitley stated he has heard other employ-
ees complain about management and he was probably guilty
of it himself, it wasn't established whether supervisors were
present on those occasions.
Following Latham's discharge he registered for employ-
ment compensation. The board of review of the Georgia
Employment Security Agency issued a decision dated June
8, affirming the decision of the administrative hearing officer
in which he found Latham's remark was not critical of
management, and he was terminated for the convenience of
the employer. This decision was not shown to have been
effectively appealed. However, a review of the decision
reflects the issue of whether Latham was discriminated
against because of his union activities was not considered
and therefore I find the decision has no probative value."
D. Analysis and Conclusions
The General Counsel contends contrary to Respondent's
denials that the Respondent violated ysection 8(aX)) of the
Act by maintaining and enforcing an unlawful no-solicita-
tion, no-distribution rule and by threatening its employees
with suspension for engaging in union activities and also
violated Section 8(a)(3) and (1) of the Act by discriminatori-
ly discharging and refusing to reinstate Latham because of
his union membership and activities.
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in the
exercise of their rights guaranteed in Section 7 of the Act.
Section 8(a)(3) of the Act provides in pertinent part: "It
shall be an unfair labor practice for an employer . . . by
discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or
discourage membership in any labor organization .... "
" Phillips. a supervisor under the Act, was line foreman of the construction
crew.
" While such decisions are admissible they are not binding upon the Board.
Insofar as the unlawful no-solicitation, no-distribution
rule is concerned, the evidence, supra, establishes the
Respondent had in effect the following rule known as policy
bulletin 81:
Effective immediately solicitation of personnel or distri-
bution of literature, pamphlets, hand-outs to Co-op
personnel, on the premises of the Co-op headquarters is
prohibited without the expressed approval of the
manager.
This rule was enforced regarding union solicitation and
distribution as established by the findings, supra, that on
January 6, the rule was read to Latham by Superintendent
Wilkes and Supervisor Deberry at the direction of Manager
Roberts because Latham had been observed in the company
parking lot the previous day soliciting employees and
distributing literature. Latham on that occasion had talked
to two employees in the parking lot after his work hours and
had given them copies of the Union's proposals. Wilkes and
Deberry on January 6 also threatened Latham with suspen-
sion for engaging in union activities by informing him if he
mentioned the word "union" or was caught handing out
pamphlets or anything involving the union he would be
terminated for I week without pay even if it was on or
around company premises. Further that same day or shortly
thereafter Supervisor Deberry held a meeting of the employ-
ees on the right-of-way crew and threatened them with
suspension for engaging in union activities by informing
them they were not to engage in the distribution or receipt of
any kind of literature on company time and premises or they
would be subject to a lay off for a week or it could be
permanent.
Rules which prohibit employees from soliciting for the
union on nonworking time and from distributing union
literature when they are on their own nonworking time and
also in nonworking areas of the employer's premises are
presumptively invalid and violate Section 8(a)(1) of the Act.
The presumption can be rebutted by evidence of special
circumstances necessary to maintain production or disci-
pline. The Times Publishing Company, 240 NLRB 1158
(1979); Minneapolis-Honeywell Regulator Company. 139
NLRB 849 (1962): Stoddard-Quirk Manufacturing Co., 138
NLRB 615 (1962); and Walton Manufacturing Company,
126 NLRB 697, enfd. 289 F.2d 177 (5th Cir. 1961).
The no-solicitation, no-distribution rule in the instant
case, which has been enforced against union solicitation and
distribution makes no distinctions between working and
nonworking time or working and nonworking areas of
Respondent's premises and is therefore overly broad and
under the applicable principles of law expressed violates
Section 8(aX 1) of the Act.
Having found Superintendent Wilkes and Supervisor
Deberry on January 6 threatened Latham with suspension
for engaging in union activities and Supervisor Deberry
about January 6 threatened employees on the right-of-way
crew with suspension for engaging in union activities, I find
the Respondent by engaging in such conduct has interfered
with, restrained, and coerced its employees in the exercise of
Cadillac Marine & Boat Company 115 NLRB 107. fn. 1 (1956); and Aerovox
Corporation. 104 NLRB 246. 247 (1953).
1362
IRWIN COUNTY ELECTRIC MEMBERSHIP COOPERATIVE
their rights guaranteed them in Section 7 of the Act and has
thereby violated Section 8(a)(l) of the Act. The fact such
threats arose out of the enforcement of the no-solicitation,
no-distribution rule would not be a valid defense since the
rule itself was unlawful.
The remaining issue to be resolved is whether Latham was
discriminatorily discharged and denied reinstatement be-
cause of his union membership and activities.
Under the law if an employee's discharge is motivated by
antiunion design such discharge is violative of the Act even
though the employee has performed misdeeds which would
warrant his dismissal. Frosty Morn Meats, Inc. v. N.L.R.B..
296 F.2d 617, 620 (5th Cir. 1961). Direct evidence of
discriminatory motivation is not necessary to support a
finding of discrimination and such intent may be inferred
from the record as a whole. Heath International Inc.. 196
NLRB 318 (1972).
The findings, supra, establish Latham was active in the
Union and Respondent had knowledge of his activities. Not
only did Manager Roberts, about October 13, 1978, implied-
ly threaten Latham with discharge for refusing to discuss the
union with him after work hours, but Superintendent Wilkes
and Supervisor Deberry on January 6, acting on Manager
Roberts' instructions to talk to Latham about his union
activities the previous day, unlawfully threatened him with
suspension for engaging in union activities.
Latham who had been employed by Respondent for over 6
years and was considered by his supervisor, Superintendent
Wilkes to be a good employee, was discharged without any
prior warning on January 19. Respondent alleges the reason
he was discharged was because of a remark he made some 10
days earlier in the presence of several employees and
Superintendent Wilkes and Supervisor Deberry about poli-
tics having played a part in his reconnecting a consumer's
service the previous night which Manager Roberts said he
took as being a personal attack on him.
While Respondent contends the remark violated a compa-
ny rule against criticizing management neither Wilkes nor
Deberry who were present and overheard the remark
admittedly took any action against Latham at the time.
Further no evidence was presented to show employees were
aware of the rule and Latham and other employees specifi-
cally denied having any prior knowledge of such a rule.
Moreover, no other employees have ever been discharged for
violating the rule even though Respondent's President Fuller
acknowledged he knew the identities of other employees still
employed by Respondent who had violated the rule which
was his reason for bringing up the rule at the board of
director's meeting held on January 17.
An examination of both the circumstances surrounding
the remark and the remark itself shows it was not without
some validity. Latham was instructed by Manager Roberts
to reconnect a consumer's electricity Latham had cut off
earlier that day for failure, as reflected by Respondent's
records, to pay his delinquent bill. This resulted after a
member of the board of directors intervened on behalf of the
consumer and contacted Roberts about restoring the con-
sumer's service notwithstanding no actual proof existed to
show the bill had been paid which is required under
Respondent's policies before power can be restored.
Since the rule was unknown to employees and not
enforced against other employees who Respondent had
knowledge they had violated it, and upon considering the
fact 10 days elasped before invoking it against Latham
allegedly for making a remark, which was not without some
validity and limited to Respondent's own personnel, I reject
Respondent's defense as being unpersuasive. Rather, upon
considering the foregoing evidence which establishes Lat-
ham's union activities of which Respondent had knowledge;
Respondent's union animus as established through the
unlawful threats herein found; the fact Manager Roberts had
impliedly threatened Latham with discharge for refusing to
discuss the union with him after work hours and shortly
before his discharge Latham was unlawfully threatened with
suspension for engaging in union activities; and upon
considering the circumstances of his discharge which oc-
curred without any prior warning and having rejected
Respondent's defense which I find was but a pretext seized
upon to conceal the discriminatory motive, I am persuaded
and find that Respondent discriminatorily discharged Lat-
ham and refused to reinstate him because of his union
activities thereby violating Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section IIIabove,
found to constitute unfair labor practices, occurring in
connection with the operations of Respondent described in
section I above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several states and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
CONCLUSIONS OF LAW
I. Irwin County Electric Membership Cooperative is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local
84, is a labor organization within the meaning of Section
2(5) of the Act.
3. By threatening employees with suspension for engaging
in union activities; and by maintaining and enforcing an
unlawful no-solicitation, no-distribution rule, Respondent
has interfered with, restrained, and coerced its employees in
the exercise of their rights guaranteed in Section 7 of the Act
and has engaged in unfair labor practices in violation of
Section 8(a)(l) of the Act.
4. By discriminatorily discharging Allen Latham on
January 19, 1979, and refusing to reinstate him because of
his union activities, Respondent has engaged in unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act, I shall recommend that it cease and desist
1363
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefrom and take certain affirmative action to effectuate
the policies of the Act.
Accordingly. Respondent shall be ordered to rescind
policy bulletin 81 and to offer immediate and full reinstate-
ment to Allen Latham to his former job or if that job no
longer exists to a substantially equivalent job without
prejudice to his seniority and other rights and privileges and
to make him whole for any loss of earnings and compensa-
tion he may have suffered as a result of the discrimination
against him in his employment herein found by discrimina-
torily discharging him on January 19, 1979, until the date of
such full and proper reinstatement. Backpay shall be
computed as prescribed in F. W. Woolworth Company. 90
NLRB 289 (1950), plus interest as set forth in Isis Plumbing
& Heating Co.. 138 NLRB 716 (1962), and Florida Steel
Corporation. 231 NLRB 651 (1977).
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'"
The Respondent, Irwin County Electric Membership
Cooperative, Oscilla, Georgia, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Threatening employees with suspension for engaging
in union activities.
(b) Maintaining and enforcing any rule or regulation
prohibiting its employees from soliciting on behalf of any
labor organization on Respondent's premises during non-
working time, or prohibiting the distribution of union
literature in nonworking areas during employees' nonwork-
ing time.
(c) Discouraging activities in the International Brother-
hood of Electrical Workers, Local 84, or any other labor
organization by discharging, refusing to reinstate, or in any
other manner discriminating against employees in regard to
'" 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.
their hire or tenure of employment or any term or condition
of employment.
(d) In any like or related manner interfering with,
restraining or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Rescind its policy bulletin 81 herein found to be
unlawful.
(b) Offer immediate and full reinstatement to Allen
Latham to his former job or if that job no longer exists to a
substantial equivalent job without prejudice to his seniority
and other rights and privileges and make him whole for any
loss of pay or other compensation he may have suffered by
reason of the discrimination against him herein found in the
manner set forth in that section of this Decision entitled
"The Remedy."
(c) Preserve and upon request, make available to the
Board or its agents for examination and copying all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze and determine the amount of backpay due under the
terms of this Order.
(d) Post at its Ocilla, Georgia, facility copies of the
attached notice marked "Appendix."" Copies of said notice
on forms furnished by the Regional Director for Region 10,
shall after being duly signed by Respondent's authorized
representative be posted 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. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced or covered by any other material.
(e) Notify the Regional Director for Region 10, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges unfair labor
practices not specifically found herein.
' In the event that this Order is enforced by a Judgment of the 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."
1364