Public Service Co.

National Labor Relations Board - Board Decisions

Sep 19, 1994

314 N.L.R.B. 1197 (N.L.R.B. 1994)

1197
314 NLRB No. 196
PUBLIC SERVICE CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In the second paragraph of his decision, the judge inadvertently
stated that the Respondent gave Bickel a verbal warning on Sep-
tember 25, 1993, rather than 1992.
In the absence of exceptions, we find it unnecessary to pass on
the judge’s reliance on Highland Yarn Mills, 310 NLRB 644 (1993).
2 We shall issue a new notice to provide standard remedial lan-
guage. 1 All dates are 1992, unless otherwise indicated.
Public Service Company of Oklahoma (PSO) and
International Brotherhood of Electrical Work-
ers, Local Union No. 1002, AFL–CIO. Case 17–
CA–16439
September 19, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On April 18, 1994, Administrative Law Judge James
L. Rose issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Public Service Company of
Oklahoma (PSO), Oologah, Oklahoma, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, except that the attached notice
is substituted for that of the administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT give verbal or written warnings to our
employees, or otherwise discipline them, because they
engage in union or other concerted activity protected
by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL remove from our files any reference to our
discipline of Jay Bickel on September 25 and Novem-
ber 6, 1992, and WE WILL notify him that we have
done so and that the discipline will not be used against
him in any way.
PUBLIC SERVICE COMPANY OF OKLA-
HOMA (PSO)
Lyn R. Buckley, Esq., for the General Counsel.
Kristen L. Gordon and Lynn Paul Mattson, Esqs., of Tulsa,
Oklahoma, for the Respondent.
Stanley Patterson, of Tulsa, Oklahoma, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me at Tulsa, Oklahoma, on February 8 and
9, 1994, on the General Counsel’s complaint, as amended,
which alleged that the Respondent issued a verbal warning
to employee Jay Bickel in violation of Section 8(a)(1) and
(3) of the National Labor Relations Act, 29 U.S.C. § 151 et
seq.
The Respondent admitted that it gave Bickel a verbal
warning on September 25, 1993,1 which was withdrawn and
replaced by another on November 6. However, the Respond-
ent denied that it in any way violated the Act.
Following the close of the hearing counsel submitted
briefs. On the record as a whole, including my observation
of the witnesses, briefs and arguments of counsel, I issue the
following findings of fact, conclusions of law, and rec-
ommended order.
I. JURISDICTION
Public Service Company of Oklahoma (PSO) (the Re-
spondent) is a public utility engaged in the business of pro-
viding electricity to customers in the State of Oklahoma. In
the conduct of this business, the Respondent annually derives
gross revenues in excess of $250,000. The Respondent ad-
mits, and I find, that it is an employer engaged in interstate
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The 1991–1992 agreement offered into evidence by the Respond-
ent is missing the two pages in which ‘‘Union Rights’’ are covered.
Since there is no allegation or defense relying on the agreement, I
do not consider this void of critical significance.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, International Brotherhood of Elec-
trical Workers, Local Union No. 1002, AFL–CIO (the
Union), is admitted to be, and I find is, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
For many years the Union has had collective-bargaining
agreements with the Respondent.2 Jay Bickel is a mainte-
nance mechanic at the Respondent’s northeast stations 3 and
4, where the events here took place, and is the Union’s shop
steward. During the 2-week period which included Sep-
tember 24, northeast stations 3 and 4 was in a planned out-
age for maintenance. During this period, though not nor-
mally, Bickel’s supervisor was Tracy Babst. Her supervisor
was Maintenance Superintendent Scott Quaid.
Early on September 24, while Babst was meeting with the
other mechanics, Bickel came into the room and announced
that he had to use the telephone. Bickel was not in this meet-
ing with the other mechanics because he was handling an
employee grievance in his capacity as steward. Babst testi-
fied that Bickel walked paralled to the table where she was
standing, and without stopping, stated that he was going to
use the telephone.
Then about 2 hours later, according to Babst, Bickel again
interrupted a meeting she as holding to state that he was
going to use the phone ‘‘to call the hall.’’ Since she had
learned on September 22, again as a result of an incident in-
volving Bickel, that phone use should be limited to breaks,
she told Bickel he would have to wait. He protested, stating
that he had a ‘‘Federal’’ right to use the phone then.
At about 1:30 p.m. that day, as Babst’s employees were
returning from their lunchbreak, there arose a dispute con-
cerning their dinner breaktime the previous week. During the
outage employees were required to work 12 hours, with an-
other 4 being voluntary. This affected how they would be
paid for their dinner break. In effect, Babst was taking the
position that they would not be entitled to one-half hour of
pay which the employees thought they should get. During the
discussion, Bickel said something to the effect of letting
Babst have her way and they would file a grievance.
Babst testified that she decided to relent and pay the men
for the one-half hour; however, Bickel still suggested that
they should file a grievance.
Finally on September 24, after Bickel returned from dinner
and had redressed in his work clothes, he went to the coal
yard to talk to an employee who had earlier said he wanted
to file a grievance. Supervisor Bob Noble was meeting with
employees and, according to his testimony, when Bickel said
he would not talk to them with Noble present, Noble said,
‘‘Well, you go on back to work and I will arrange a time
for you to meet with these guys.’’
Shortly thereafter, Nobel observed Bickel outside the secu-
rity fence, in the parking lot, talking to an employee, pre-
sumably as that employee was leaving work. Nobel con-
cluded that Bickel had disobeyed his direct order to return
to work, since Bickel’s work assignment at that time was on
the precipitator, which was several hundred yards from the
coal maintenance office.
The next day, Babst, Nobel, and Quaid met to discuss the
events of September 24 involving Bickel, because, according
to Nobel, ‘‘everyone said, ‘Let’s sit down for a few minutes
and see just what happened yesterday because we can’t stand
another day like yesterday.’’’
The result was verbal warning to Bickel, which was me-
morialized by Quaid on October 16:
On September 25, 1992, a verbal reprimand was given
to you [in the presence of Tracy Babst and Jim
Guilliams] for the following reasons:
1. Failure to request the use of the telephone.
2. Disrespectful action toward your supervisor.
3. Promoting action which would result in a griev-
ance.
4. Willful disobedience of an order given by a super-
visor.
If you have any questions concerning this information,
please advise.
A charge was filed and following an investigation, accord-
ing to the November 5 memo written by Quaid,
After repeated discussions with Bill Dayhoff [the Re-
spondent’s manager of labor relations], a decision has
been made to rescind the verbal reprimand . . . [be-
cause] the NLRB official felt that a steward could in-
deed take action to initiate a grievance. . . . I felt
strongly that Jay deserved a reprimand for his action
concerning the promotion of a grievance; although, I
agreed to rescind the verbal reprimand. . . . I will
issue another verbal reprimand for Jay’s failure to re-
quest the use of the telephone, disrespectful action to-
ward a supervisor, and willful disobedience of an order
given by a supervisor.
Bickel was informed of the revised reprimand on Novem-
ber 6, although it does not appear it was put in writing.
B. Analysis and Concluding Findings
1. Jefferson Chemical bar
In its posthearing brief, the Respondent for the first time
contends that litigation of this matter is barred by operation
of Jefferson Chemical Co., 200 NLRB 992 (1972), since an-
other case involving this Respondent and Union was tried be-
fore Administrative Law Judge Charno in Case 17–CA–
16248 in May and October 1993. The Respondent argues
that the facts of Bickel’s reprimand were known to the Gen-
eral Counsel prior to completion of that hearing, therefore
subsequent litigation is barred.
The Respondent did not raise this defense before or at the
hearing here, though counsel for the General Counsel argued
against its application just prior to resting her case-in-chief.
I reject the Respondent’s belated reliance on Jefferson
Chemical, supra, and Peyton Packing Co., 129 NLRB 1358
(1961). The policy of the rule established in these cases is
to avoid piecemeal litigation and protect respondents from
1199PUBLIC SERVICE CO.
having to defend multiple actions. This is not jurisdictional
or a rule of substantive law. Rather, it is a policy to promote
administrative economy and fairness. Where, as here, the de-
fense is raised after the trial and briefs there can be little
hope of savings to the administrative process or the Respond-
ent. I conclude that where a case is fully litigated, then a de-
fense based on Jefferson Chemical and Peyton Packing,
supra, should be rejected as untimely.
Further, to sustain such a defense, the Respondent has the
burden of showing prima facie that the General Counsel
knew, or reasonably should have known, about the new
events at the time the first complaint was being tried and that
the new allegations were closely related to those in the first
complaint. Highland Yarn Mills, 310 NLRB 644 (1993).
There are insufficient facts in the record to conclude that the
Respondent met its burden, even if the bar defense could be
considered timely.
2. Bickel’s discipline
All of Bickel’s activity on September 24 for which he was
reprimanded occurred in connection with his functioning as
a union steward. The reprimand resulted from Quaid’s opin-
ion ‘‘that his behavior during this week was unacceptable for
a union steward. I explained to him [Bickel] that the steward
position was a respected position in the eyes of the other me-
chanics, and that he should present exemplary character at all
times.’’ This is from Quaid’s September 25 file memo re-
counting the discipline interview with Bickel.
It is clear from this and subsequent memos written by
Quaid, as well as his testimony, that the motivating factor for
the discipline of Bickel was his position and activity as the
union steward. Such is clearly concerted union activity pro-
tected by the Act. Therefore, discipline of one for having en-
gaged in such activity is violative of Section 8(a)(1) and (3)
of the Act, unless the Respondent can prove that Bickel
would have been disciplined had he not been the steward en-
gaged in union activity. Wright Line, 251 NLRB 1083
(1980).
This the Respondent failed to do. Indeed, it is clear that
even after the first reprimand was withdrawn, Quaid contin-
ued to believe that Bickel should have been disciplined for
attempting to promote the filing of a grievance. That was the
principal unacceptable act in the first warning. Though Quaid
professed to be of the opinion that the other acts independ-
ently warranted discipline, I conclude they would not have
moved the Respondent to discipline Bickel or anyone else
absent the grievance matter.
Individually or together, these other acts of allegedly unac-
ceptable behavior were trivial in the extreme. According to
Quaid, he had never had to discipline any employee, which
suggests that the Respondent does not routinely issue warn-
ings for such trivial matters. And there is no evidence to sup-
port a rational basis to start a course of discipline with
Bickel, other than his union activity.
The first event occurred at about 8 a.m. when Bickel came
into the room where Babst was conducting a meeting and
(from Quaid’s memo) ‘‘demanded to use the phone, and then
walked out. I stated that this is unacceptable behavior, and
that he must request (and be granted permission) to use the
phone except during breaks or lunch-hours.’’ It appears that
critical to this, from Quaid’s viewpoint, was Bickel’s demand
to use the phone, rather than a request.
Perhaps Bickel could have been more civil in his approach
to Babst, who was a new supervisor to him. However, to
conclude that such is a normal basis for discipline in a shop
does not have the ring of credulity. Bickel’s demand arose
in the context of his dealing with the grievance of an em-
ployee, a fact which was known to Babst and Quaid. I, there-
fore, find incredulous that Bickel would have been dis-
ciplined for this act absent his engaging in protected activity.
An almost identical event occurred 2 hours’ later. Bickel
demanded use of the phone to call ‘‘the hall.’’ Again Babst
felt her status as a supervisor had been disrespected. Again,
Bickel might have been more respectful in stating his re-
quest. Nevertheless, I cannot conclude that Bickel acted in a
way which in the ordinary course of events would have
caused the Respondent to give him a disciplinary warning
absent such arising out of his union activity.
In concluding that the Respondent would not have dis-
ciplined Bickel absent his union activity, I have generally
credited Babst. It may well be that as a new supervisor at
this station she felt put upon. But such does not justify giv-
ing a disciplinary warning to one lawfully engaged in union
activity. Quaid admitted that he knew Bickel was doing
union business both times that he sought to use the tele-
phone. The discipline here was based solely on Quaid’s sub-
jective judgment of what constituted generally inappropriate
behavior for a steward.
The final event is Bickel’s alleged failure to obey an order
of a supervisor. All parties agree that about 7 p.m. Bickel
asked to speak to Nobel’s men in connection with a griev-
ance matter. All agree that Bickel told Nobel he wanted to
speak to them without Nobel being present. All agree that
Nobel said he would arrange for this the next morning. And
all agree that Bickel left and a few minutes later was seen
outside the security gate talking to an employee who was in
his truck.
The only point of disagreement is whether Nobel told
Bickel ‘‘Well, you go on back to work.’’ Though Bickel, and
other employees who witnessed this event, testified that
Nobel said no such a thing, it is more credible that he did.
At least implicit in Nobel’s statement was that Bickel should
return to work. And even without Nobel saying so, such
would be understood by Bickel. However, this does not
mean Nobel gave Bickel a direct order which Bickel dis-
obeyed. The principal trust of Nobel’s statement was he
would arrange for Bickel to talk to the men the next morn-
ing. That Bickel should then return to work was to state the
obvious and was simply a comment closing the conversation.
Bickel certainly would have returned to his job without being
told to do so by Nobel. There is no reason to believe Nobel
needed to order Bickel to return to work or that there was
any question on the part of either that Bickel should return
to work. And in fact, he did so. In context, Nobel’s statement
was an offhand remark and not one reasonably to be con-
strued as a direct order, any deviation from which would be
cause for discipline.
Further, the fact that Bickel tarried a few minutes in route
back to work does not seem of great significance. Although
the Respondent was in a maintenance outage and was requir-
ing a great deal of overtime, the looseness with which em-
ployees took their evening dinner break belies Nobel’s testi-
mony that every minute counted. Employees were allotted 1
1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
hour to change and go to dinner; but often they took up to
1-1/2 hours and this was not considered a problem.
I conclude that this alleged refusal to obey a supervisor
was case building by Quaid. I conclude it was one more
event related to Bickel’s union activity on September 24
which Quaid determined would warrant discipline. It is sim-
ply not rational that an employee not engaged in protected
activity would have been so disciplined. I, therefore, con-
clude that the Respondent did not carry its burden under
Wright Line.
I conclude that the motivating cause of Bickel’s discipline
on September 25 was his union activity. This is clearly pro-
tected by the Act. While it is possible that one’s union activ-
ity can be so opprobrious as to lose its protected character,
such was not the case here. Therefore, the Respondent vio-
lated Section 8(a)(1) and (3) in giving Bickel the disciplinary
warning. Further, I conclude this unfair labor practice contin-
ued with the reissuance of the warning on November 6, even
though reference to promoting a grievance was omitted.
Therefore, I shall recommend that an appropriate remedy for
the Respondent’s unlawful activity be ordered.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it should be ordered to
cease and desist from this activity and take certain affirma-
tive action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Public Service Company of Oklahoma
(PSO), Tulsa, Oklahoma, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Issuing employees verbal or written discipline because
they engage in union or other activity protected by Section
7 of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Remove from its files any reference to the unlawful
discipline of Jay Bickel and notify him in writing that this
has been done and that the warning will not be used against
him in any way.
(b) Post at its northeast stations 3 and 4 in Tulsa, Okla-
homa, copies of the attached notice marked ‘‘Appendix.’’4
Copies of the notice, on forms provided by the Regional Di-
rector for Region 17, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.