Barrow Utilities & Electric

National Labor Relations Board - Board Decisions

Jul 28, 1992

308 N.L.R.B. 4 (N.L.R.B. 1992)

4
308 NLRB No. 2
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On February 12, 1992, Administrative Law Judge Clifford H.
Anderson issued the attached decision. The Respondent filed excep-
tions, a supporting brief, and a motion to reopen the record.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has moved to reopen the record to receive the
testimony of Edith Vorderstrasse. We deny the motion. The Re-
spondent has failed to demonstrate any extraordinary circumstances
warranting reopening of the record for evidence which could have
been presented previously.
3 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.
4 The judge’s recommended Order does not include the Board’s
standard remedial language enjoining the Respondent from engaging
in ‘‘like or related’’ unlawful conduct. We shall include the correct
language in a modified Order and in a substitute notice.
Barrow Utilities and Electric Cooperative, Incor-
porated and International Brotherhood of Elec-
trical Workers, Local Union 1547. Case 19–
CA–21574
July 28, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issues presented here are whether the judge1
correctly found that: employee Harry White was not a
supervisor within the meaning of Section 2(11) of the
Act; the Respondent violated Section 8(a)(1) by inter-
rogating White and by telling employees White was
being removed as plant steward because of his union
activities; and the Respondent violated Section 8(a)(3)
and (1) by removing White from his steward’s position
and by subsequently suspending and discharging him.
The Board has considered the decision and the
record2 in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,3 and con-
clusions and to adopt the recommended Order as
modified.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Bar-
row Utilities and Electric Cooperative, Incorporated,
Barrow, Alaska, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(f).
‘‘(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.’’
2. Substitute the attached notice for that of the ad-
ministrative 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 interrogate employees regarding their
union activities or the union activities of other employ-
ees.
WE WILL NOT tell our employees that their steward
has been replaced and has lost credibility with manage-
ment because of his ‘‘secretive’’ union activities.
WE WILL NOT replace our steward because of his
union activities or the union activities of other employ-
ees.
WE WILL NOT suspend our employees because of
their union activities or the union activities of other
employees.
WE WILL NOT discharge our employees because of
their union activities or the union activities of other
employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL offer Harry White immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, WE WILL further reinstate him to
his former position as steward, and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from our unlawful actions against him, less any
net interim earnings, plus interest.
WE WILL notify Harry White that we have removed
from our files any reference to his removal as steward,
5BARROW UTILITIES & ELECTRIC
1 The original answer of Respondent was inadvertently omitted
from the formal papers. By order to show cause dated December 31,
1991, I proposed to receive the answer into evidence unless any
party objected by January 10, 1992. No party responded to the order.
Accordingly, I have received the answer into evidence as Jt. Exh.
2. As a result of the pleadings and the stipulations of counsel at the
trial, there were few disputes of fact regarding collateral matters.
Where not otherwise noted, the findings herein are based on the
pleadings, the stipulations of counsel, or unchallenged credible evi-
dence.
his suspension, and his discharge, and that these ac-
tions will not be used against him in any way.
BARROW UTILITIES AND ELECTRIC CO-
OPERATIVE, INCORPORATED
Dale B. Cubbison, Esq., for the General Counsel.
Christian N. Bataille, Esq., of Fairbanks, Alaska, for the Re-
spondent.
William F. Morse, Esq., of Anchorage, Alaska, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on October 24 and 25, 1991, in Bar-
row, Alaska, pursuant to a complaint and notice of hearing
issued by the Regional Director for Region 19 of the Na-
tional Labor Relations Board (the Board) on August 26,
1991, and an amended complaint and notice of hearing
issued on October 10, 1991, based on a charge filed on July
1, 1991, and docketed as Case 19–CA–21574 by the Inter-
national Brotherhood of Electrical Workers, Local Union
1547 (the Charging Party or the Union) against Barrow Utili-
ties and Electric Cooperative, Incorporated (Respondent or
the Employer) and amended on October 9, 1991. A
posthearing brief was filed by Respondent on November 29,
1991.
The amended complaint as further amended at the hearing
alleges that Respondent’s agent made statements violative of
Section 8(a)(1) of the National Labor Relations Act (the Act)
to its employees in May and June 1991. It further alleges
that Respondent removed employee Harry White from his
position of ‘‘plant steward’’ on or about June 18, 1991, sus-
pended him on June 21, 1991, and discharged him on June
27, 1991. The complaint alleges these actions were under-
taken by Respondent because White ‘‘supported or assisted
the Union and in order to discourage employees from engag-
ing in union activities, reporting unsafe working conditions
to OSHA, or engaging in other concerted activities for pur-
poses of collective bargaining or other mutual aid or protec-
tion’’ and therefore violated Section 8(a)(1) and (3) of the
Act.
Respondent does not dispute it took the actions against
White in the complaint, but averred that the actions were free
from improper motive and therefore did not violate the Act.
Respondent further challenged the allegations of independent
violations of Section 8(a)(1) of the Act both by contesting
the occurrence of the events as alleged and further contend-
ing the Act was not violated under any view of the facts.
All parties were given full opportunity to participate at the
hearing, to introduce relevant evidence, to call, examine and
cross-examine witnesses, to argue orally, and to file
posthearing briefs.
Upon the entire record including oral argument from the
General Counsel, the Charging Party, and Respondent and a
posthearing brief from Respondent, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT1
I. JURISDICTION
Respondent is a nonprofit Alaska corporation, with an of-
fice and place of business in Barrow, Alaska, where it is en-
gaged as a public utility providing the community of Barrow,
Alaska, with natural gas service, electrical production and
distribution, water production, and distribution and sewage
service. Respondent during the 12-month period proceeding
the issuance of the complaint, in the course and conduct of
its business operations, had gross sales in excess of $1 mil-
lion and, during the same period of time, purchased and
caused to be transferred and delivered to its facilities within
the State of Alaska, goods and materials valued in excess of
$50,000 directly from sources outside Alaska, or from sup-
pliers within the State which in turn obtained such goods and
materials directly from sources outside the State.
The parties agree and I find that Respondent is, and has
been at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a nonprofit member owned utility providing
four regulated utility functions to the community of Barrow,
Alaska: sewer, water, natural gas, and electricity. Respond-
ent’s general manager at all relevant times has been James
Caress. Roger Jones has been operations assistant and Shel-
don Tieglund has been administrative manager. Edith
Vorderstrasse has been president of Respondent’s board of
directors.
Timothy Wolfe has been the B.U.S. plant/utility plant co-
ordinator. He supervises the superintendents of the B.U.S.
plant and the utility plant also referred to as base II plant.
At relevant times the superintendent of base II plant was Pat-
rick Cleveland. Cleveland had been a mechanic, then chief
mechanic for 6 years prior to assuming the duties of super-
intendent. He served as base II plant superintendent for sev-
eral years until November 1991 at which time he became a
mechanic at the plant. There is no dispute that at all relevant
times these individuals were agents of Respondent.
Base II plant is staffed by plant operators, a chief oper-
ations mechanic, and a mechanic. At relevant times the chief
mechanic was Harry White and the mechanic, Glen Cogburn.
Since the mid-1980s Respondent’s electrical linemen have
been represented by the Union and have been covered by a
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Barrow, the northernmost community in the hemisphere, is acces-
sible on a year round basis only by air. Distances and commercial
airfares are not inconsiderable.
collective-bargaining agreement. Other employees, including
utility plant employees, have not been represented by a labor
organization.
The Union represents employees in the electrical trade and
other occupations throughout the State of Alaska. The union
business representative covering the northern portion of the
State including Barrow at relevant times was John Giuchici.
B. The Supervisory Duties of Harry White
Harry White began employment for Respondent in late
1988 as a utility plant mechanic working with utility plant
chief mechanic or chief of utility plant maintenance (Chief
Mechanic), Ron Storer. Upon Storer’s departure in late 1989,
White was promoted to chief mechanic and received a wage
increase and the use of Respondent’s trailer home located
near the utility areas. Insofar as the record reflects, other than
the chief mechanic, there has never been more than one util-
ity mechanic on Respondent’s payroll at any one time.
The job descriptions of both the chief mechanic and the
mechanic were entered into evidence. The mechanic job de-
scription notes that the mechanic works under ‘‘the super-
vision of the Chief Utility Plant Mechanic or Plant Super-
intendent.’’ It also indicates that the mechanic:
Supervises helpers when performing major overhauling
of equipment. These include laborers, utility operators
and/or other utility plant mechanics.
The job description for the chief mechanic or chief of utility
plant maintenance indicates he is responsible for the training
of the assistant mechanic. Presumably this is a reference to
the mechanic for the record does not suggest the position of
assistant mechanic existed at any relevant time. The two job
descriptions do not otherwise specify any of the indicia of
supervisory status set forth in Section 2(11) of the Act.
White testified that as chief mechanic he worked with the
mechanic as a journeyman to an apprentice on those tasks
where either he or the mechanic has the technical experience
and/or skills to take the lead. He also testified that, as set
forth in the mechanic job description quoted above, the chief
mechanic could commandeer other utility operators to assist
them if necessary and if it did not interfere in utility oper-
ations.
White testified categorically that he had neither the actual
authority to take actions nor the authority to effectively rec-
ommend the taking of actions such as the hiring, firing, or
other discipline of employees or the authorization of time off
or overtime for employees. He testified than he had never
taken such actions as chief mechanic. White recalled that he
had on two occasions while chief mechanic been appointed
acting superintendent in Cleveland’s absence but heavily dis-
counted his authority in that role.
White testified that his replacement as mechanic on his ap-
pointment as chief mechanic was selected after the following
events. Cleveland selected Cogburn’s resume and invited him
to come to Barrow.2 On Cogburn’s arrival Messrs. Caress,
Thornburg, and Cleveland—‘‘the people that had the power
to hire,’’ were either out of town or in the process of leav-
ing. White was asked to ‘‘see if [Cogburn] suited the job,
suited the qualifications.’’ White reported that Cogburn
‘‘could fill the job because he was an electrician and an elec-
trician was what we needed at the time to do the things that
I could not do.’’ Cogburn was thereafter hired.
Former Superintendent Cleveland and Coordinator Wolfe
each attributed far greater authority to the chief mechanic po-
sition. They testified that the chief was the immediate super-
visor of the mechanic and had the power to commandeer and
responsibly direct other utility plant staff when extra staff
was necessary to accomplish given tasks.
C. The Events
1. White as steward
In the spring of 1989, Respondent determined to imple-
ment a steward system among its unrepresented staff at its
utility and B.U.S. plants. White was appointed steward at the
utility plant. The system was announced and described in a
May 24, 1989 memorandum to plant employees. The memo
stated in part:
Each plant now has a ‘‘plant steward’’ who will be
available to handle all needed communication. Any em-
ployee may utilize a steward whenever he feels it nec-
essary to present a situation to supervision/management.
Issues may be presented anonymously thru the steward,
or in person with the steward in attendance, issues will
be presented to the direct supervisor involved, with the
understanding that if no satisfactory decision is reached,
the steward may elect to carry it on up to upper man-
agement. If an issue goes before the General Manager,
his decision on the matter will be final. Naturally the
steward and the employee he is representing will be im-
mune from any retribution relating to the issue.
White testified that his steward duties involved approxi-
mately 11 utility plant employees and brought him into regu-
lar contact with both Cleveland and Caress in his capacity
as a steward.
2. The boiler disassembly and employee fears
In the summer of 1990 Respondent removed an old power
plant boiler and its heat recovery system at base II plant. The
insulation associated with the old boiler was also removed
and/or disturbed. Several employees were concerned that the
insulation might contain asbestos and that insufficient safety
precautions were being undertaken. White testified that
Cleveland responded to these concerns by suggesting the ma-
terial did not contain asbestos and that those employees who
did not want to do the removal work could be replaced.
Months passed and fears and concerns seemed to have
been muted by time. In early spring of 1991, a news item
was carried in Barrow respecting an asbestos problem in the
relatively nearby community of Prudhoe Bay which was
being rigorously addressed by the Alaska State OSHA. This
report, including the fact that a relatively small amount of as-
bestos produced substantial action by the State, including the
shutting down of the workplace, rekindled safety fears
among some of the utility employees respecting their contact
with what might have been asbestos in 1990 as well as the
7BARROW UTILITIES & ELECTRIC
3 There was no dispute that the issue of ‘‘willful negligence’’ was
of great importance to Respondent. Where such a finding is made
penalties are very substantial.
potential continuing risk of exposure to possible asbestos re-
maining on site.
3. White’s role in the asbestos events
White testified that employees came to him with their as-
bestos concerns in very early April 1991. He in turn went
to Cleveland who, White testified, simply told him that ‘‘all
you guys are trying to do is make trouble for me and I don’t
want to hear about [it].’’ White then prepared a memoran-
dum dealing with the subject and brought a copy to Cleve-
land to take to Caress. Cleveland read it and, White testified,
refused to take it to Caress stating that, if White wanted it
delivered, he would have to do it himself. White said that
he would do so immediately after lunch.
After lunch Cleveland approached White and suggested,
were White to tear up the memo, the two would ‘‘go over
to the office’’ and report the problem. The two men met with
Tom Wolfe immediately thereafter. Wolfe heard the men out,
told them that Caress should have been immediately in-
formed about the problem and excused himself to talk to Ca-
ress. Wolfe returned to the men and told them that Caress
wanted them to make up a memo ‘‘on what happened and
what the concern was, and have all the operators sign it.’’
Cleveland denied that White ever approached him with a
memo before they spoke to Wolfe. Rather he recalled that
White had prepared a memo after their conversation with
Wolfe which was destroyed after Cleveland declined to ac-
cept it as written. In Cleveland’s recollection he was the au-
thor of the memo signed by the employees as quoted infra.
A memorandum dated April 18, 1991, directed to Wolfe
and Caress and signed by Cleveland, White, and seven others
was submitted. The memo noted ‘‘The Operators at the Util-
ity Plant have expressed a concern of exposure to Asbestos.’’
The specific material at issue was described and the memo
concluded with the following:
The main concerns of the operators are:
(1) What should be done with the remaining As-
bestos Millboard?
(2) What Health effects has the Dust created by
the removal of this material had on the people in the
Utility Plant?
White testified that time passed without action sufficient to
satisfy some employees. Respondent issued a memorandum
dated April 24, 1991, from Wolfe to all concerned employees
noting that asbestos sampling had been done and that more
would be done by a State of Alaska voluntary compliance of-
ficer who would visit the facilities on May 8, 1991, for 2
days. Employees told White that they wanted the Alaska
OSHA enforcement division to become involved rather than
simply the voluntary compliance office. White told the em-
ployees they could contact OSHA directly and, apparently,
they did so.
Apparently coincidentally, the State OSHA enforcement
inspector had arrived and was inspecting the facility when
the voluntary compliance officer arrived for his visit. White
testified that Caress introduced the enforcement officer, Paul
Frith, to him and instructed White to assist Frith in his in-
spection. Frith stayed 2 days, spoke to the employees and left
after giving White a ‘‘packet of affidavits for each employee
to fill out.’’ White had the affidavits filled out, signed and
dated and sent them to Frith at his Fairbanks, Alaska office.
White set the time of these events as about May 21 or 22,
1991.
White testified to two later telephone conversations with
Frith. In the first White recalled that Frith told him he had
not yet finished his report. In the second, perhaps in early
June, Frith told White he had finished his report and ‘‘sub-
mitted it to the Anchorage office.’’ Frith told White he had
‘‘found willful negligence’’3 on the part of Respondent. Frith
did not testify in the proceeding although the other OSHA
representative, Donald Study, did.
The OSHA office issued its findings—apparently Frith’s
report was an internal document never issued to the parties—
after the events in issue. No findings of willful negligence
were made.
4. The petition to remove Cleveland
White testified that in or about the first week of May, with
the asbestos situation constituting the triggering event, the
employees came to White to obtain the removal of Cleveland
as superintendent. White prepared a memorandum, showed it
to Cleveland and presented it to Caress. White testified that
Caress sought a 90-day probation period for Cleveland after
which employees could vote to retain him or not. White
brought this back to the employees who agreed and the plan
was implemented.
Caress testified that ‘‘[a]t some point in time’’ White came
to him as steward with a memorandum reflecting that base
II employees were not of a mind to follow the leadership or
the management of Cleveland. Caress recalled that he asked
for a 90-day period to ‘‘try rehabilitation’’ for Cleveland and
that White ‘‘on behalf of the employees’’ granted Caress’ re-
quest. It was agreed that the employees would, in Caress’s
words: ‘‘In essence, watch and judge and at the end of this
90-day period allow them to have a vote on his perceived
change of attitude, conduct, things of this nature.’’
Thereafter Caress issued a memorandum to Cleveland in-
forming him of his ‘‘probation type’’ status. Cleveland was
sent to supervisory classes and counselled by Caress about
his supervisory style in the following period.
5. White’s union activities and consequences
White testified that employees remained generally dissatis-
fied by all events and raised with White the question of
unionization in the period May 12–14, 1991. White gave
them what information he had and agreed to get additional
information for them. White contacted the Union’s steward
and requested information about the Union. Four or five days
later the steward produced a ‘‘packet.’’ White testified:
It was history, rules and regulations of the IBEW, and
also in the packet was representation cards for the em-
ployees to sign if he would like representation within
the Union.
White distributed the information and authorization cards
to employees over the following 4-day period. Within 2 days
he had obtained signed authorization cards from 18 employ-
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees and received more thereafter. The signers of these cards
represented a substantial portion of the bargaining unit.
Thereafter White contacted the Union’s business agent and
the two men arranged for the business agent to meet with
employees at a Barrow restaurant on June 21, 1991. White
then told the employees of the upcoming meeting.
On or about June 14, 1991, White met with Sheldon
Tiegland, Respondent’s administrative manager, at White’s
home. White told Tiegland ‘‘what was going on’’ respecting
his activities concerning the Union. Tiegland asked how
many employees had signed authorization cards and White
told him.
On June 17 or 18, 1991, White was working on a stairway
in the front hallway of the utility plant with fellow employee
Brett Eisenhour when they were approached by Caress in
midmorning. White testified that he exchanged greetings with
Caress and asked him what he could do for him. Caress re-
sponded that he wished to talk to White about ‘‘this unioniz-
ing.’’ White asked Caress where he wanted to talk and Ca-
ress responded that ‘‘right here is good enough.’’ At that
point in White’s recollection Eisenhour excused himself and
White and Caress continued alone. White testified:
Mr. Caress asked me why this [unionizing] came about,
why he hadn’t been informed. And I explained to him
that the employees had decided they didn’t want him to
be informed which they didn’t. He asked me why they
were wanting the Union to represent them. I explained
to him there was several different reasons. Part of it
was supervision. Part of it was communications with
supervision and management people. I can’t name all
the reasons. There were several reasons that they had
come up with on this. Part of it was some of their
working conditions they didn’t like. . . . The safety
part of it came up several times from several different
employees. . . . And that was the end of my conversa-
tion with Mr. Caress. He proceeded to tell me at that
time, he said you have lost all my respect and credibil-
ity and proceeded to leave.
White further recalled that he also told Caress that he had
earlier talked to Tieglund about the organizing efforts and
that Caress responded that he had not known about that.
Brett Eisenhour, the chief operator of the utility plant until
his termination in the fortnight before the hearing herein, tes-
tified that he was present during the conversation between
White and Caress in mid-May 1991. He testified:
Jim [Caress] said the sneaky stuff going around the
plant meaning the Union activity. And Harry [White]
said yes, some of the guys wanted to know about the
Union and all I’m doing is, you know, taking care of
them, what they want to know about it out in the open.
And Jim said that if they wanted any information on
Union, he has it all in the office and they can come ask
him.
And so at that point they just—the conversation went
into, you know, he’d been working at a Union and Jim
was—Harry was a member of a Union and Jim was
also a member of the Union and that they each knew
different sides of the Union and what not. And that’s
basically what the conversation was.
. . . .
[Caress] asked why it hadn’t been, you know, the
issue hadn’t been brought to the office. And Harry
thought it was something that management really
shouldn’t know about as far as if they’re going to sign
their cards or what not and vote. He thought that it was
better that, you know, they go ahead and do it without
management knowing because it was, you know, it was
our rights, I guess.
Caress testified that ‘‘within a matter of hours’’ after he
learned of the employees’ union activities he went to the
Base II plant and spoke to White in Eisenhour’s presence.
He testified:
Mr. White and I talked about the IBEW. Basically I
wanted to know why these activities were going on and
why he had not brought them to my attention. And Mr.
White informed me that it’s something that’s supposed
to be of a secretive nature, you know, it’s not nec-
essarily something that’s brought to me. We talked
about the union and I informed Mr. White that I also
had been an apprentice, had gone all the way through
the IBEW 1547, I was no stranger to it, I’ve negotiated
on both sides for and against the union. You know, the
subject of union is really open conversation at a com-
pany. We have union [linemen]. The office has got data
that’s available to anybody that wished it. And basi-
cally, the conversation ceased at about that point and I
went back to the office.
Caress testified that he then returned to his office and pre-
pared the following memorandum dated June 18, 1991,
which was disseminated to employees on that date.
To: Base II Employees
The subject of a union, its cost and conditions, for
employees has a data base at [Respondent] and is an
open subject. The secretive manner in which Harry
White as Plant Steward handled this subject has caused
him a loss of ceditability [sic], especially with me, as
General Manager.
Please elect another person to replace Harry White
who will act in all of our behalves [sic]. In the mean-
time, there is an IBEW steward [Dick] here at [Re-
spondent], an agreement between [Respondent] and the
IBEW that covers the linemen and typical known costs
for dues, etc. There is more than enough data to com-
pare [Respondent] benefits against IBEW benefits and
costs.
Until such time as you have a new steward in place,
contact me or Roger Jones if you desire union data, etc.
/s/ Jim Caress
White testified that Caress suggested several individuals
for steward but that these employees declined to serve. White
described the later events:
The employees sat down and wrote a memo back to
Mr. Caress expressing their desire to have me left on
as Steward or reelecting me as the Steward—what have
you. They all signed it and it was given to Mr. Caress
and Mr. Caress rejected it.
9BARROW UTILITIES & ELECTRIC
6. White’s contact with the president of the board of
directors and the consequences
On June 19, 1991, in the evening White had occasion to
meet Respondent’s board of director’s president, Edith
Vorderstrasse, in the grocery store. The two were casual ac-
quaintances and spoke briefly. White described the conversa-
tion:
And she brought up the subject of the asbestos re-
moval and if I had been informed from OSHA of what
the charges were going to be and what the complaint
was that was filed and the whole bit. I told her that I
had not received anything. Didn’t know when I’d re-
ceive anything. She said well if the proper papers are
received from OSHA by the time we have our Board
meeting, if it reflects negligence on the part of Barrow
Utilities, that it was very possible that they would ask
for the dismissal of Patrick Cleveland.
. . . .
I told her I could not understand why he hadn’t been
reprimanded for what had happened. She said she could
not understand it either. As far as I know, he had not
been reprimanded in any way. He was not put on pro-
bation. He was not put on suspension. He still kept his
job as a supervisor.
Vorderstrasse, although apparently available, was not called
to testify.
The following day at the beginning of work, White and
Cleveland had a conversation in the breakroom. White testi-
fied:
I was sitting in the break room putting on my cover-
alls and Mr. Cleveland came in and asked me how it
was going and I says it’s going just fine. I said it
doesn’t look too good for you. And he said what do
you mean by that? I said well I had run into Edith
Vorderstrasse in the local market the evening before.
. . . I told him that she had told me that if they got
all the paperwork and reports back from OSHA and
they showed [Respondent] was negligent on the re-
moval, that it was very possible that they would ask for
his dismissal. And he said well, he said, we’ll see about
that. And I said, you know, it’s not my problem.
But I also informed him that it was coming very
close to the time for the operators to vote on whether
he kept his job as supervisor or not. So there was two
things that he had to look at. And he said well I’m not
worried about that. He said that’ll take care of itself.
Mr. Cleveland also described the conversation.
I was sitting in the coffee room of the utility plant.
. . . And as I was sitting there having a cup of coffee
and looking things over, Mr. White came into the cof-
fee room and sat down across about a three foot table
from me and leaned across the table kind of looking at
me. . . . And as he spoke to me in a low tone, he said
I just thought I’d let you know that Edith and I dis-
cussed this yesterday and tomorrow after the Board
meeting will be your last day.
. . . .
He also mentioned at that time although I don’t re-
member the words exactly he used as I do the threat
that he intended to attend that Board meeting. And that
at the Board meeting the matter of the shop Steward
would be discussed. . . . And he did not think that
management should be able to do that and he was
going to discuss that at the Board meeting.
Cleveland specifically denied that White suggested that
Cleveland’s upcoming termination by the Board was condi-
tioned on a determination by OSHA that Respondent had
been negligent about asbestos or that there was any discus-
sion of or use of the words ‘‘willful negligence’’ between
them.
Following this conversation Cleveland completed his
morning duties and went to Caress’s office. Cleveland testi-
fied he told Caress ‘‘exactly what Harry had said to me and
asked him basically if it was true.’’ Caress told Cleveland,
in Cleveland’s recollection, that he did not know of any in-
tention to fire him. Caress’ memory of the conversation,
while much less specific as to detail, was corroborative of
Cleveland.
Caress testified that later that afternoon he requested that
White come to his office. The two individuals met the fol-
lowing morning. White testified that Caress asked him if he
had told Cleveland that he was going to be discharged and
why he had talked to the president of the board of directors.
White answered that Vorderstrasse had told him that there
was a possibility that the Board would ask for Cleveland’s
dismissal. Caress asked if those were the exact words he had
said to Cleveland and also asked why White had made the
statement to Cleveland. White responded that those were the
exact words he had used to Cleveland and that ‘‘all I was
trying to do was to be truthful with Pat [Cleveland].’’ Caress
then asked White to stay in the office while he called Cleve-
land to join them.
Caress recalled that the meeting began with his asking
White to ‘‘repeat the statement that he had made to Pat
Cleveland in regards to his employment.’’ Caress testified he
found White to be generally evasive in reporting what he had
told Cleveland the day before and at that point asked Cleve-
land to join the meeting.
Cleveland joined White and Caress in Caress’s office.
White testified:
Pat [Cleveland] came to the office. [Caress] asked Pat
to repeat. . . . to him what I had said. And Pat said
that Edith and I had decided that he was going to be
fired. And I at that time said no that’s not the words
that I said. Mr. Caress says well you verified this al-
ready and I said not those words. And he said well will
you attest that you stated that he might be terminated?
I said yes I will. I did. So I did say yes, but not to the
words that Pat said.
Caress also recalled that he initially asked Cleveland to re-
peat what White had told him and that Cleveland ‘‘basi-
cally’’ said that White told him that White and the board
president had elected to terminate Cleveland after or during
the board meeting. Caress testified:
I turned to Harry White and asked him to confirm or
deny the statement. he started to answer some other
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
question. I said, please confirm or deny it. At that point
in time, Harry White said I made the statement. He
confirmed that he made that statement.
Caress testified that the statement of White was unqualified
and was a ‘‘direct admission that he had made a threatening
statement to Pat Cleveland.’’ He then issued a handwritten
suspension to White to give himself ‘‘time to finish fully ex-
ploring this matter.’’
Cleveland recalled that he arrived at the meeting after the
two others ‘‘had been talking a while.’’ Caress asked him to
repeat what he had told Caress the previous day and he did
so. Caress then asked White if he had made those statements
and White said: ‘‘Yes, he did say the first part of what I con-
strued to be a threat of my position.’’ Cleveland recalled that
Caress then asked White about his stated intention to attend
the Board meeting and White denied having made that state-
ment to Cleveland. At this point Cleveland recalled Caress
announced he was suspending White. Thereafter White left
the facility.
Caress testified that after White’s suspension he contacted
Vorderstrasse and
asked her about this meeting that had taken place be-
tween her and Harry White over at the store, and what
was the essence of it, the outcome of it, what tran-
spired? And talking with her on that subject, and in-
formed her of why I was contacting her and what state-
ments were made.
Caress testified that Vorderstrasse told him
[t]hat she did not concur with or have any reason to ad-
dress the termination of Pat Cleveland. That is not
something the Board of Directors is involved in.
Following a period of days, White was discharged on June
27, 1991. As part of his loss of employment he was required
to vacate Respondent’s supplied housing. Respondent’s dis-
charge letter signed by Caress states in part:
My decision is based upon the attitude and verbal state-
ment you made to the Base II Superintendent regarding
his being terminated.
Respondent’s prehearing brief, Judge’s Exhibit 1, at 11,
states:
On June 20, 1991 White told Pat Cleveland that he had
met with the president of the Barrow Utilities Board of
Directors, Ms. Vorderstrasse, and that it was determined
that Cleveland would be terminated after the next
Board of Directors meeting. Cleveland then reported
this information to Caress. Caress met personally with
White and Cleveland. White admitted to having made
the forgoing statement to Cleveland. Caress thereupon
immediately suspended White pending an investigation.
After being advised by Ms. Vorderstrasse that she had
neither impliedly or expressly authorized White to
make the forgoing statement to Patrick Cleveland, Ca-
ress terminated White for insubordination and deceit.
There was no record testimony respecting conversations be-
tween Caress and Vorderstrasse.
7. Business Representative Giuchici’s contacts
with Caress
John Giuchici, business representative of the Union, met
with Caress on Tuesday, June 25, 1991. Caress indicated he
was aware of the upcoming meeting with employees.
Giuchici told Caress he had been contacted about represent-
ing the employees. Caress said the majority of employees did
not want the Union, rather that just a few rabblerousers were
behind it.
The two men met again the next day, June 26, 1991.
Giuchici testified the two talked of the employee meeting the
previous day, about the desires of employees and the Union’s
intention to file a representation petition. He testified:
And at that time Mr. Caress’ voice raised quite a bit
and he said if anyone doesn’t like the way things are
here now, they can pack their bags. And with the tone
and everything, I says well okay, but I’m going to go
ahead and I’m going to go back and I’m going to file.
And he says well go right ahead. I’ll tie it up in the
courts for years.
Thereafter a representation petition was filed and an election
held. The Union did not prevail.
D. Analysis and Conclusions
1. The supervisory status of the chief utility plant
mechanic position
Respondent contends that White as chief utility plant me-
chanic was a supervisor within the meaning of Section 2(11)
of the Act. The General Counsel argues the contrary. Several
issues were litigated.
Initially it should be noted that White’s position as stew-
ard was not contended to support a finding of supervisory
status and correctly so. The role of employee representative
or assistant is not supervisory within the meaning of the Act.
Further, I find the fact that Respondent appointed White as
steward supports the General Counsel’s position that White
was not a supervisor. The steward role, as described in the
memorandum to employees quoted supra, is clearly one of
the employees’ representative in employees’ dealings with
their ‘‘direct supervisor.’’ Were White a supervisor, his role
as the employees’ assistant or at least as a neutral in their
relations with management would be compromised. The fact
of White’s appointment and service thereafter as steward
suggests neither Respondent nor the employees regarded him
as a supervisor.
Respondent contends that the chief mechanic supervises
and trains the mechanic and has the responsibility to
responsibily direct him. Wolfe testified that the chief me-
chanic’s responsibilities in this regard are clear. White testi-
fied however that as chief mechanic he received very specific
instructions from Cleveland and was required to clear major
decisions with him thus greatly reducing the discretion he
possessed to initiate work involving the mechanic. Further
White testified that his relationship as chief with the me-
chanic depended on their relative areas of expertise. Thus he
suggested that when working in the electrical area the me-
chanic gave him work instructions and directions and when
working in mechanical areas he gave the mechanic instruc-
tions and directions.
11BARROW UTILITIES & ELECTRIC
4 The third allegation, par. 7(a) of the complaint, was without sup-
porting evidence to sustain it as an allegation separate from others.
It shall be dismissed.
5 The issue here is not simply a question of a clear and unmistak-
able waiver of rights. Any promise by a statutory employee to re-
frain from union activity or to report the union activities of others
would be void by operation of law. The law has long been clear that
all variations of the venerable ‘‘yellow dog contract’’ are invalid as
a matter of law.
Respondent points out that White as well as Cleveland tes-
tified that White could ‘‘commandeer’’ utility plant operators
to assist when needed and direct their work. Indeed that is
a responsibility explicitly given to the mechanic in his job
description. The ability to obtain staff assistance when nec-
essary and the implied authority to direct those assistants in
the specific work projects involved does not standing alone
rise to the level of supervisory authority where there is no
evidence of the frequency of the process or the type of work
or supervision involved. Thus neither the chief nor the me-
chanic is a supervisor because of his right to command as-
sistance when needed for particular tasks.
Wolfe also testified that the chief mechanic ‘‘would’’ have
the authority to effectively recommend discipline of the me-
chanic. White specifically denied ever possessing or utilizing
such authority. The chief mechanic’s job description is sig-
nificantly lacking in all areas of direct supervisory powers.
I credit White over Wolfe that such powers and authorities
were never communicated to White or exercised by him.
White had a far superior demeanor. Further Wolfe seemed to
rely on general assertions of authority in the abstract which
were not confirmed by White’s job description.
Further the other testimony did not sustain Respondent’s
position. Thus, Cogburn, who worked as mechanic, testified
he did not regard White as his supervisor. Cleveland testified
about his promotion from chief mechanic to superintendent:
‘‘[W]hen a position came open as a supervisor in the same
building where I had worked, I took that position.’’ Such tes-
timony is hardly indicative of a promotion from a super-
visory position. Given all the above, I find the chief mechan-
ic’s relationship to the mechanic during White’s service in
that capacity reflects the cooperative efforts of individuals
with differing skills rather than the traditional supervisor-su-
pervisee relationship.
The core powers to hire, fire, discipline, or effectively rec-
ommend such action are clearly lacking in the chief me-
chanic position. White’s role in the hire of his replacement
was very limited and did not involve a true recommendation
of that individual’s hire based on consideration of his skills
or abilities but rather simply an assertion of opinion that an
individual with electrical skills should be hired.
On the basis of all the above I find there is insufficient
credible evidence for Respondent to meet its burden of proof
of showing that White as chief mechanic was a supervisor
within the meaning of Section 2(11) of the Act. Accordingly
I find White was an employee covered by the Act and the
protections of Section 7 thereof at all times material.
2. The allegations of independent violations of
Section 8(a)(1) of the Act
Paragraph 7 of the complaint alleges three statements by
Respondent’s manager Jim Caress as violative of Section
8(a)(1) of the Act. Two are treated separately below.4
a. Complaint paragraph 7(b): On June 17, 1991,
Caress interrogates White concerning his
union activities
The three versions of this conversation are set forth in
some detail, supra, and do not vary significantly. Caress ad-
mittedly braced White with questions about the union activ-
ity of employees, his role in the union activities and ex-
pressed dissatisfaction with White’s ‘‘secretive’’ actions.
White suggested he was assisting employees at their request
and that he did not come to management respecting the mat-
ter because the employees wished to consider and take action
on their own.
There is no dispute that employers may not interrogate
employees about either their union activities or the union ac-
tivities of others. White at the time Caress initiated the inter-
rogation had not identified himself to Caress as a union sup-
porter nor were the union activities of employees a matter of
public discussion at the facility. Thus a classic violation of
Section 8(a)(1) of the Act seem to be made out.
Respondent seeks to defend its conduct by suggesting that
Caress was simply directing his questions and statements to
White because of White’s obvious failures to bring employ-
ees’ grievances and concerns to management’s attention be-
fore they turned to a union. Respondent posits that White as
steward should have come to Caress or other management
representatives with employee problems before the problems
ripened into union activities. Respondent argues that White
was therefore derelict in his duty as steward. As discussed
in greater detail, infra, I reject this defense in its entirety.
Assisting employees in obtaining information about a
union and otherwise helping them seek union representation
is protected activity which may not be the basis for adverse
action nor a justification for interrogating an employee about
those activities. The fact that the employee involved is a
‘‘steward’’ whose duties include bringing employee griev-
ances to management is not a justification, mitigation or ex-
cuse. Employees, including stewards on their own initiative
or in response to the requests of employees, have the statu-
tory right to consider and initiate union activity secretly
without bringing their or other employees’ union activities to
management’s attention. The steward role thus may not be
construed to in any way waive or diminish those fundamental
statutory rights.5
Nor may an employer punish a steward for a failure to re-
port the employee concerns which underlay their initiation of
union activities or justify an interrogation based on an inves-
tigation of his conduct in this regard. Simply put, union ac-
tivities are off limits to employers in this setting. Accord-
ingly, I find Respondent’s actions in interrogating White
about union activities at base II violated Section 8(a)(1) of
the Act. Therefore I find the General Counsel has sustained
this allegation of the complaint.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Complaint par. 8(b) also contended the conduct was undertaken
to discourage employees from reporting unsafe working conditions
to OSHA. There is insufficient evidence to sustain this portion of
the allegation. It is therefore dismissed.
7 The complaint also alleges Respondent took the actions against
White because of employees protected concerted activity of contact-
ing OSHA concerning the asbestos. While the asbestos events are a
critical portion of the events herein, there was insufficient evidence
to support any finding of independent animus turning on the OSHA
process. Further, the General Counsel seemed to abandon this theory
in his oral argument. Given all the above and on the record as a
whole, I find the ‘‘OSHA’’ animus theory to be without merit.
b. Complaint paragraph 7(c): June 26, 1991 Caress
threatens employees ‘‘to pack their bags’’ if they
disapproved of existing working conditions
During oral argument the General Counsel conceded this
complaint allegation was supported only by evidence of the
conversation between Union Business Representative
Giuchici and Caress. Counsel when pressed acknowledged he
had no case authority to support a finding of a violation
where an employer’s agent speaks to a business agent alone.
The General Counsel asserted his theory of a violation was
based on the assumption that the ‘‘business agent would
have communicated the threat to the employees and the em-
ployees would have, therefore, been intimidated.’’
I find no case authority for the proposition that anything
Caress may have said to a union business representative
could by that action in isolation, independently violate Sec-
tion 8(a)(1) of the Act. Nor may the doctrine of foreseeable
repetition be invoked where the person who would be ex-
pected to repeat the statement is the business representative
of the Union. Accordingly, I find no violation and I shall dis-
miss this allegation of the complaint.
3. The June 18, 1991 removal of White as
‘‘plant steward’’
Paragraph 8(a) of the complaint alleges that on June 18,
1991, Respondent reported to its employees its displeasure
with the union activities of White and in the same commu-
nication removed White as ‘‘steward.’’ Paragraph 8(b) of the
complaint alleges Respondent undertook the conduct alleged
in paragraph 8(a) because White supported or assisted the
Union and in order to discourage employees from engaging
in union activities or other protected concerted activities.6
The memorandum of June 18, 1991, quoted supra, makes
clear why White was removed as steward. The key sentence:
‘‘The secretive manner in which Harry White as plant stew-
ard handled [the subject of a union] has caused him a loss
of credibility, especially with me, as General Manager.’’
Clearly White was removed from the steward position be-
cause of his ‘‘secretive’’ union activities and the other em-
ployees’ union activities.
Respondent argues that White had a duty as a steward to
bring employee problems to management before they rose to
a level which caused employees to consider unionization.
Thus Respondent argues that the employees’ union activities
were simply an indication that White was a failure as stew-
ard and must be replaced. Further, the ‘‘secretive’’ actions of
White respecting the employees’ union activities indicated
that he was unwilling to be the open intermediary bringing
all problems to management’s attention that Respondent felt
was required in the steward position. Thus, in Caress’ view
such an individual lost all credibility.
As noted supra, I find Respondent’s defense to be without
merit. Respondent may not punish an employee—as opposed
to a supervisor—for failing to bring employee union activi-
ties to management’s attention or for assisting employees in
organizational activity. This is so even if the employee is a
steward in a system of the type put in place by Respondent.
Thus, I find Respondent has violated Section 8(a)(1) and (3)
of the Act in removing White as steward. Therefore, I find
the General Counsel has sustained this allegation of the com-
plaint.
Respondent’s communication of its actions to employees
by means of the quoted memorandum is alleged as a sepa-
rate, independent violation of Section 8(a)(1) of the Act. The
memorandum makes clear the impermissible reason for
White’s removal as steward and therefore constitutes a threat
to employees that union activities may result in adverse ac-
tions against them. Accordingly, I find Respondent in com-
municating the memo to employees violated Section 8(a)(1)
of the Act as alleged in the complaint.
4. The June 21, 1991 suspension and June 27, 1991
discharge of White
a. Credibility resolutions
The General Counsel argues that Caress seized on Cleve-
land’s June 20, 1991 report of his conversation with White
as a pretext to remove White because of his union activities.7
Respondent argues to the contrary that Caress suspended and
thereafter discharged White only for White’s statement to
Cleveland that he would be discharged. The testimony of
events presents factual conflicts which require initial resolu-
tion.
Only White testified respecting his conversation with
Vorderstrasse on the evening of June 19, 1991. Vorderstrasse
is an agent of Respondent and was not called to testify re-
specting these events. I credit White’s uncontradicted testi-
mony.
Cleveland and White testified respecting their morning
conversation on June 20, 1991. The testimony, characterized
supra, differs in collateral detail and in a critical element.
White asserts and Cleveland denies that White reported that
Cleveland might be discharged, if Alaska OSHA found neg-
ligence on the part of Respondent respecting the asbestos
events discussed supra. Cleveland testified that White told
him that the board of directors, the president, and White had
unconditionally determined to terminate him.
I find that White made his ‘‘discharge’’ remarks as he in-
dicated and reject the contrary version of Cleveland. I do so
in large measure on credibility and demeanor grounds be-
cause I was consistently taken with White’s directness and
apparent honesty on the stand. Cleveland was a less impres-
sive witness in my view. Further, I believe that Cleveland
was likely to have taken the statements of White about his
possible discharge badly and focused on the perceived threat
without hearing or at least recalling the conditions attached
to it. Cleveland’s testimony on the issue, quoted supra, sup-
ports this view. White, who I have found an honest witness
supra, would be far less likely to have misrecalled his state-
ments. Further, given my findings respecting the White-
Vorderstrasse conversation and in agreement with the oral ar-
13BARROW UTILITIES & ELECTRIC
8 I specifically find that Vorderstrasse, at all material times the
president of the board of directors, is an agent of Respondent for
purposes of the circumstances herein. Thus I find that an inference
is permissible, which I draw, that, had she testified, her testimony
would not have been inconsistent with White’s testimony and that
it would not otherwise have been favorable to Respondent’s theory
of the case.
9 While White might have been disciplined for the Cleveland-
Vorderstrasse events, rather than discharged, had he not been en-
gaged in union activities, the type of discipline that might have been
administered is not clear. In such circumstances, an improper dis-
charge is not reduced to some lesser discipline but, rather, the dis-
charge is entirely set aside. Bakersfield Memorial Hospital, 305
NLRB 741 (1991).
gument of counsel for the Charging Party on the issue, I find
White’s version of the conversation much the more probable.
White would have been unlikely to have made an uncondi-
tional threat of discharge to Cleveland. Such a bald
unconditioned threat, if it did not come to fruition at the next
board meeting, would render White foolish.
The initial conversation on June 21, 1991, between White
and Caress and the following conversation, including Cleve-
land, also present credibility issues. Caress testified that
White was evasive and nonresponsive initially but finally in
effect admitted he had directly threatened to discharge Cleve-
land. White’s version of events suggests that he accurately
reported his conditional statements to Cleveland the previous
day and was not so much quibbling with Caress as trying to
accurately report events. In White’s version of events Caress
is uninterested in hearing White out and is rather determined
to sustain Cleveland’s version of events and find improper
conduct by White.
I find that each individual was trying to give his best
recollection of these events. I find further however that
White did in fact try on several occasions to report the fact
that he did not tell Cleveland that he was going to be fired
but, rather, told him only that Vorderstrasse had told White
that the Board might seek Cleveland’s discharge if willful-
ness negligence respecting the asbestos issue was found by
OSHA.
b. A Wright Line analysis
The Board in Wright Line, 251 NLRB 1083 (1980), estab-
lished an analytical approach to discipline cases such as the
instant case. The Board looks initially to see if the General
Counsel has established a prima facie case sufficient to sup-
port the inference that protected conduct was a motivating
factor in Respondent’s decision to suspend and thereafter dis-
charge White.
Here the close timing of White’s removal as steward and
Caress’s announcement that White had lost all credibility
with him—actions found directed against White and other
employees’ union activities and violative of the Act, supra,
and White’s suspension is highly persuasive. It is very prob-
able that Caress, whose attitude toward White had clearly
taken a strong turn for the worse and who had only two days
before announced to employees that he no longer believed in
White, simply rejected all that White had said respecting the
disputed events and seized on Cleveland’s report to take ad-
verse action against White. My credibility resolutions support
this finding.
After the suspension but before the discharge Caress had
his conversations with the union business representative,
whose version of the conversations is credited. Caress in
those conversations reveals a hostility to employee selection
of a labor organization to represent them. Further in this pe-
riod, Caress was is informed the employees had not accepted
his removal of White as steward and had further refused to
chose a replacement for him.
All of the above coupled with White’s excellent work
record and Cleveland’s probationary status at the time of the
events in issue, convince me the General Counsel’s prima
facie case is strongly made.
Once the General Counsel’s prima facie case is established
under a Wright Line analysis, the burden of proof shifts to
Respondent to show that the adverse actions would have
been taken even in the absence of the protected conduct.
Here Respondent must show that the suspension and dis-
charge of White would have occurred even if the union ac-
tivities underlying White’s removal as steward had never oc-
curred.
On this record I find Respondent has failed to carry its
burden. Thus it is not at all evident to me that, absent the
‘‘loss of credibility’’ White suffered in Caress’s eyes, (1)
Whites’ version of his conversation with Cleveland would
have been rejected by Caress, (2) White would have been
suspended in the manner he was, or, finally, (3) White would
have been discharged rather than received lesser discipline.
I reach this conclusion based on my credibility resolutions
and findings above. I am butressed in this conclusion by the
absence of any testimony from Vorderstrasse or Caress re-
specting Vorderstrass’s actions and/or statements to Caress8
and on the absence on any evidence of past discipline by Re-
spondent of an arguable similar nature or in similar cir-
cumstances.
Given all the above, I find the General Counsel has sus-
tained his allegation that White was suspended and thereafter
discharged because of his union activities in violation of Sec-
tion 8(a)(1) and (3) of the Act.9 Accordingly I shall sustain
these allegations of the complaint.
5. Summary and conclusions
Summarizing my findings above, I have found without
merit and will dismiss complaint paragraphs 7(a) and (c) as
lacking in evidence. I have found Respondent’s agent Caress
interrogated White about his and other employees’ union ac-
tivities in violation of Section 8(a)(1) of the Act sustaining
paragraph 7(b) of the complaint.
I have sustained paragraph 8 of the complaint finding that
Respondent removed White from his steward position be-
cause of his and other employees’ union activities in viola-
tion of Section 8(a)(1) and (3) of the Act and violated Sec-
tion 8(a)(1) of the Act in informing employees that it has
done so.
Finally I have found that Respondent suspended and there-
after discharged White because of his union activities and the
union activities of other employees in violation of Section
8(a)(1) and (3) of the Act sustaining paragraph 9 of the com-
plaint.
REMEDY
Having found Respondent engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease and
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 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.
11 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.’’
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
I shall direct Respondent to offer Harry White full and im-
mediate reinstatement to his former positions of steward and
chief utility plant mechanic. Further Respondent shall be di-
rected to make White whole for any and all loss of earnings
and other rights, benefits and emoluments of employment,
including company supplied housing, he may have suffered
by reason of Respondent’s discrimination against him, with
interest. Backpay shall be computed in the manner set forth
in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as provided in New Horizons for the Retarded, 283 NLRB
1173 (1987); See also Florida Steel Corp., 231 NLRB 651
(1977), and Isis Plumbing Co., 138 NLRB 716 (1962).
Respondent shall also be required to withdraw, rescind and
remove all references to White’s loss of stewardship, suspen-
sion, and discharge and notify White in writing that this has
been done and that his removal as steward, his suspension
and his discharge will not be the basis of any adverse action
against him in the future. Sterling Sugars, 261 NLRB 472
(1982). Finally Respondent will be required to preserve and,
upon request, make available to the Board or its agents for
examinations and copying, all company records necessary to
analyze the amount of backpay due under the terms of this
decision and to otherwise assure that the Order herein has
been fully complied with.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(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. Respondent violated Section 8(a)(1) of the Act by en-
gaging in the following acts and conduct:
(a) Interrogating an employee concerning his and other
employees’ union activities.
(b) Informing employees that employee Harry White was
being removed as steward and had lost all credibility with
management as a consequence of his ‘‘secretive’’ union ac-
tivities.
4. Respondent violated Section 8(a)(1) and (3) of the Act
by removing employee Harry White from his position as
steward on June 18, 1991, suspending him on June 21, 1991,
and discharging him on June 27, 1991, in each case because
of his ‘‘secretive’’ union activities and the union activities of
other employees.
5. Respondent did not otherwise violate the Act as alleged
in the complaint.
6. The unfair labor practices found above are unfair labor
practices affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, Barrow Utilities and Electric Coopera-
tive, Incorporated, Barrow, Alaska, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union activities and
the union activities of others.
(b) Informing employees that their employee steward had
been removed and had lost all credibility with management
because of his ‘‘secretive’’ union activities and the union ac-
tivities of other employees.
(c) Suspending and removing Chief Utility Plant Mechanic
Harry White from his position as steward because of his ‘‘se-
cretive’’ union activities and the union activities of other em-
ployees.
(d) Suspending employee Harry White because of his ‘‘se-
cretive’’ union activities and the union activities of other em-
ployees.
(e) Discharging employee Harry White because of his ‘‘se-
cretive’’ union activities and the union activities of other em-
ployees.
(f) In any like or related manner violating the provisions
of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer immediate and full reinstatement to Harry White
as chief utility plant mechanic and as steward, replacing as
necessary any individuals hired or appointed to replace him.
(b) Make whole White for any and all losses incurred as
a result of Respondent’s suspension and discharge of him,
with interest, as provided for in the remedy section of this
decision.
(c) Withdraw, rescind and remove from its files any and
all references to White’s removal as steward, to his suspen-
sion and to his discharge and notify White in writing that
this has been done and that these improper actions will not
be used against him in any future personnel actions.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its Barrow, Alaska facilities copies of the at-
tached notice marked ‘‘Appendix.’’11 Copies of the notice,
on forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.