Intermountain Rural Electric Association

National Labor Relations Board - Board Decisions

Jan 8, 1981

253 N.L.R.B. 1153 (N.L.R.B. 1981)

INTERMOUNTAIN RURAL ELECTRIC ASSOCIATION
Intermountain Rural Electric Association and Inter-
national Brotherhood of Electrical Workers,
Local No. 111. Cases 27-CA-6151, 27-CA-
6280, and 27-CA-6305
January 8, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEI.LO
On September 29, 1980, Administrative Law
Judge Richard J. Boyce issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Intermountain
Rural Electric Association, Littleton, Castle Rock,
Conifer, Strasburg, and Woodland Park, Colorado,
its officers, agents, sucessors, 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.
i The fact that we are ordering Respondent to reinstitute its pension
plan as it existed as of December 31. 1978, although allegedly unqualified
by reason of IRS Ruling 78-403. does not preclude the parties from bar-
gaining over any proposed changes, including retroactive changes. in-
tended to retain IRS qualification Rather. our Order merely restores the
status quo ante and places the parties in the positions they sould have
enjoyed but for Respondent's illegal conduct
Respondent's motion to reopen the record shall be, and it hereby i,
denied as irrelevant to the issues presented for our review. In addition to
the reasons given by the Administrative l.aw Judge fr finding Tate's
discharge to iolate Sec (a)(3). we note that a principal reason for Re-
spondent's denial of Tate's request for lealve namely, the hacklog f
work fr her. as, itself he product of Respondenlt'les earlier unlassful sus-
pension of her
253 NLRB No. 164
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WIll. NOT refuse to bargain collectively
with International Brotherhood of Electrical
Workers, Local No. 111, as the representative
of the employees in the appropriate unit de-
scribed below, by abrogating article XVII of
the 1977-80 bargaining agreement between us
and the Union, as concerns the treatment of
pension plan dividends, or by abrogating any
other provision of said agreement, without the
valid consent of the Union. The appropriate
unit is:
All production and maintenance employees
employed by us at and out of our Littleton,
Colorado, place of business, and at or out of
our branch places of business, including
Castle Rock, Conifer, Strasburg, and Wood-
land Park, Colorado, including the ware-
houseman, the janitor, the assistant engi-
neers, and chain and rod man; excluding
office clerical employees, guards, profession-
al employees, and supervisors as defined in
the Act.
WE WI.L NOT refuse to bargain collectively
with the Union, as the representative of the
employees in the above unit, by failing to pro-
vide the Union, promptly upon request, with
complete information underlying our decision
to alter the application of dividends under our
pension plan; or with any other information to
which the Union is lawfully entitled as bar-
gaining representative.
I 11 53
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discharge, suspend, repri-
mand, or otherwise discriminate against em-
ployees for engaging in union or concerted ac-
tivities protected by the Act.
WE WILL NOT tell employees that "a blan-
ket" has been put on raises "because of the
filing" of a petition for a union election; and
that raises probably will not be forthcoming
"if the Union comes in," but probably will be
"if the Union doesn't come in."
WE WILL NOT ask employees why the em-
ployees "were filing for a union."
WE WILL NOT indicate to the employees, by
memorandum or otherwise, that the Union's
election victory and the organization effort
preceding it were a futility and would cause
them economic detriment.
WE WILL NOT tell employees, in response to
their union sympathies and activities, that we
are thinking of suspending them or that they
will "probably be fired."
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights under the Act.
WE WILL rescind the change in the treat-
ment of pension plan dividends, effective Janu-
ary 1, 1979, as it affects employees in the
above unit; and execute whatever documents,
make whatever remittances, and otherwise do
whatever is necessary to restore the situation,
as concerns employees in the above unit, to
that which would now obtain had the change
never been made.
WE WILL promptly provide the Union with
all documents and information requested by it
on May 31 and August 16, 1979, concerning
the pension plan.
WE WILL, upon request, to the extent re-
quired by Section 8(d) of the Act, bargain col-
lectively with the Union as the representative
of our employees in the above unit, concerning
contemplated changes in the terms or condi-
tions of employment of those employees, and,
if an understanding is reached, embody it in a
signed document.
WE WILL offer Katherine Tate immediate
and full reinstatement to her former job or, if
that job no longer exists, to a substantially
equivalent job, without prejudice to her se-
niority or other rights and privileges, discharg-
ing a replacement if necessary; and WE WILL
make her whole for any loss of earnings or
benefits suffered by reason of her unlawful sus-
pension and discharge in July 1979, with inter-
est on lost earnings.
WE WILL expunge from our files and other
records all copies of or references to the repri-
mand, dated July 5, 1979, that was issued to
Kathleen Gunton, and inform her in writing
that this has been done.
INTERMOUNTAIN RURAL ELECTRIC
ASSOCIATION
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
matter was heard before me in Denver, Colorado, on
November 14-16, 1979. The underlying charges were
filed by International Brotherhood of Electrical Work-
ers, Local No. 111, herein called the Union, on March
19, July 12, and August 7, 1979. A consolidated com-
plaint, superseding separate complaints of an earlier date,
issued on October 18, 1979, alleging that Intermountain
Rural Electric Association, herein called Respondent,
had committed certain violations of Section 8(a)(1), (3),
and (5) of the National Labor Relations Act, as amend-
ed.
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Colorado corporation with its head-
quarters in Littleton, providing electrical power to the
communities of Castle Rock, Conifer, Strasburg, and
Woodland Park, as well as Littleton. Its annual gross
income exceeds $250,000, and it annually supplies power
of a value exceeding $5,000 to firms in Colorado which
meet the Board's direct inflow jurisdictional standard.
Respondent is an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE AI.I.EGED 8(a)(5) and (I) VIO.ATIONS
A. Allegations
The Union represents the so-called outside or produc-
tion and maintenance employees in a unit embracing Re-
spondent's operations in the five communities named
above.' The complaint alleges the following violations of
Section 8(a)(5) and (1) with respect to this unit:
The formal unit description is:
All production and maintenance employees employed by [Respond-
entl at and out of its Littleton, Colorado, place of business, and at or
out of its branch places of business, including Castle Rock, Conifer,
Strasburg, and Woodland Park, Colorado, including the warehouse-
man, the janitor, the assistant engineers, and chain and rod man, ex-
cluding office clerical employees, guards, professional employees,
and supervisors as defined in the Act.
Continued
1154
INTERMOUNTAIN RURAL ELECTRIC ASSOCIATION
(a) Since April 18, 1979, Respondent has failed to
make pension contributions for the employees as previ-
ously agreed upon with the Union, and has refused to
negotiate the matter with the Union.
(b) Since May 31, 1979, Respondent has failed to
comply with the Union's request for assorted information
concerning an employee pension plan and Respondent's
decision to reallocate dividends from the plan.
B. Facts
Article XVII of the current bargaining agreement cov-
ering the employees in the unit just described, effective
from December 1, 1977, through November 30, 1980,
provides:
The Association [Respondent] agrees to keep in full
force and effect, during the term of this Agreement,
the retirement plan, including the return of divi-
dends and profits to the plan . . . presently in effect
covering employees of the Association. Where con-
tribution is presently required by an employee, such
contribution shall continue to be required.
At the time this agreement was entered into, Respond-
ent was party to an annuity contract with Minnesota
Mutual Life Insurance Company (herein called Minneso-
ta Mutual) affording pension coverage for those employ-
ees, unit and nonunit alike, choosing to participate. Par-
ticipating employees contributed between 3 and 5 per-
cent of their compensation to fund the plan,2 with Re-
spondent contributing the remainder. Among the features
of the annuity contract was a provision that yearly divi-
dends in excess of 19,000 "shall be allocated to" the
participating employees. Because of the above-quoted
provision of the bargaining agreement, Respondent had
bound itself to continue this arrangement on behalf of
the unit employees for the term of that agreement.
Total dividends for 1978 were $72,000, meaning that,
had the past practice been followed. the participants, unit
and nonunit, would have received an allocation of
$53,000 in January 1979. But this was not to be. In the
summer of 1978, Respondent engaged the accounting
firm of Peat, Marwick, Mitchell & Co. (herein called
Peat) to review the pension plan, the objective being to
reduce its cost to Respondent. On November 21, 1978,
representatives of Peat, and Minnesota Mutual met with
Respondent's general manager, Stanley Lewandowski.
They concluded that the plan as then constituted and
funded eventually "would bankrupt the Company," and,
further, that a substantial question existed whether the
handling of dividends under the plan prevented its being
a "defined benefit pension plan" qualifying for favored
treatment under the Internal Revenue Code.
This was followed by letters to Lewandowski, dated
December 1, from Minnesota Mutual and Peat. Both let-
ters cited IRS Ruling 78-403, which issued on November
13, 1978. The Minnesota Mutual letter, characterizing the
situation addressed by the ruling as "similar" to Re-
It is undisputed that this is an appropriate unit for purposes of the Act,
and it is so found.
z The participants contributed 3 percent of their first $350 in monthly
income and 5 percent of their monthly income o,er $350
spondent's, concluded: "[]t is obvious from the ruling
they [dividends] can no longer be allocated to the par-
ticipants." Similarly, the Peat letter construed the ruling
to hold "that a defined benefit plan that credits excess in-
vestment income to individual participant accounts will
not qualify." Noting that the ruling by its terms excused
such plans already in existence, provided they were
amended to conform "by the end of the first plan year
that begins after December 31, 1978, and that the amend-
ment is effective as of the first day of such plan year,"
the Peat letter stated:
It would appear necessary then . . . to retain its
qualified status, the Plan must be amended no later
than December 31, 1979, to eliminate the crediting
of dividends to participants with respect to divi-
dends paid on or after January I, 1979.
Lewandowski reported these developments at the
monthly meeting of Respondent's board of directors,
held December 5, adding that, since the existing plan as
incorporated in the bargaining agreement provided for
the allocation of excess dividends to the participants, any
change in that regard "would have to be agreed to by
the Union." Lewandowski's report continued:
Since we have two years remaining on the . . . cur-
rent contract, the Union would have to agree to
open up the contract for renegotiation of that sec-
tion.
Lewandowski stressed the need for "a strong selling
point" to induce the Union to forgo the dividend alloca-
tion, adding that it had been decided during his Novem-
ber 21 meeting with Minnesota Mutual and Peat that, "if
a plan was developed that eliminated the employee con-
tribution . . . that could be the salable feature."
The matter next was considered by the directors at a
special meeting on December 18. Lewandowski again in-
formed them that any change in the pension plan "would
have to be negotiated with the Union," and proposed an
alternative plan in which "dividends would be used to
offset company costs and a salable feature to employees
would be the elimination of employee contributions."
During the meeting, the board authorized Lewandowski
to "contact the Union and attempt to negotiate" such a
plan. The IRS ruling notwithstanding, Lewandowski tes-
tified that his "entire objective" in seeking the board's
authorization was "to reduce the Company's costs and
expenses for the pension plan."
Lewandowski and three other management officials3
accordingly met with two union representatives, John
Meaders and Robert Mason, on December 22. Citing
IRS Ruling 78-403, Lewandowski announced that the al-
location of dividends to participants would have to be
discontinued, lest the pension plan lose IRS qualification
and, incorrectly, that the change had to be made by De-
cember 31, 1978. He granted that this would mean "a
loss to" the employees, and said that he "contemplated"
:' Fred Willians, assistant general manager. Spencer (Cronk. operations
manager, and R (sw;ln. director ofoperationls
1155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the elimination of employee contributions "to offset this
loss." Lewandowski made no mention of his true objec-
tive-cutting costs-in seeking to change the plan.
Meaders responded that he did not want the plan "to be
disqualified"; that, "if the dividends were going to have
to be applied in some other manner, there would have to
be an offsetting arrangement made"; and that it would be
only "fair" for Respondent "to pick up" the participants'
share of the funding.
Lewandowski stated during the meeting that it might
take "quite a while to work out the technical details" of
the change and, indeed, that elimination of employee
contributions might turn out to be impossible. Lewan-
dowski offered that, in the meantime, Respondent either
could cease withholding contribution shares from the
participants' pay in the expectation that their further
contributions would be unnecessary, assessing them later
should that expectation not materialize, or it could con-
tinue to withhold, without remitting those moneys to
Minnesota Mutual, later refunding such amounts, with
interest, should further participant contributions not be
needed. Meaders expressed a preference for the latter ap-
proach on the ground that it would be easier to make re-
funds than to collect for several months of arrearages,
and it was agreed to proceed in that fashion.
Meaders or Mason also said that any change in the
plan would have to be reviewed by the Union's attorney
and be submitted to its membership for ratification, and
Lewandowski stated that, were it to develop that partici-
pant contributions could not be eliminated, he would
"get back and talk" with the union representatives.
Lewandowski conceded in his testimony that neither
Meaders nor Mason verbalized any willingness by the
Union to give up the allocation of dividends without
some kind of offset. 4
The relationship between Respondent and the Union
to the time of the meeting just described was excellent.
As Mason testified:
[A]t that point in time, we had excellent relations
[with] Mr. Lewandowski and we had absolutely no
reason to doubt his word. His word has been [as]
good as gold for as long as we have known him
On December 29, Lewandowski met with the employ-
ees, describing the dividend/IRS situation much as he
had to Meaders and Mason on December 22. Mason was
present. Again, no mention was made of Lewandowski's
more basic cost-cutting objective in seeking to change
the plan. He stated that, while Respondent would contin-
ue to withhold contribution shares from the participants'
pay, it was envisioned that their obligation would be as-
4 For the most part, the testimony of the several witnesses is in agree-
ment regarding the substance of the December 22 meeting. Mason is
credited that Meaders said any change would have to be reviewed by the
Union's attorney and ratified by the membership. He was convincing on
the point, even though the Union apparently did not follow this proce-
dure on all midterm changes in the contract, particularly since neither
Lewandowski, Williams, nor Cronk denied that this was said, testifying
only that they had no recall of it Meaders and Cowan did not testify
Mason testified that Meaders was in Washington, D.C., at the time of
hearing, and thus unavailable to testify.
sumed by Respondent and that the sums withheld would
be refunded upon perfection of the new arrangement. He
also invited those not then participating to enroll, assur-
ing them that, should it eventuate that participant contri-
butions could not be eliminated, they would have the
"option" of withdrawing.
On January 18, 1979, without further communication
of moment between Respondent and the Union, Re-
spondent's president and an official of Minnesota Mutual
executed an amendment to the pension plan providing, as
explained in a letter from Minnesota Mutual:
[A]s of January 1, 1979, all dividends would be ap-
plied to reduce the Employer's cost [and] the divi-
dends which were allocated as of January 1, 1978,
will be the last to be apportioned among the em-
ployees.
Also on January 18, Respondent's board of directors
met, during which Lewandowski reported that he had
instructed Minnesota Mutual not to file the amendment
with IRS, "as we will be following up with a completely
new plan." Lewandowski further reported that "there is
no question that . . . the elimination of employee contri-
butions is what will be required in getting the plan
changed," and that, regarding such contributions, "we
are deducting the same from employees' checks but are
not forwarding them to the insurance company." Lewan-
dowski continued:
We will keep the contributions as part of our gener-
al funds and general investments. If everything goes
according to plan, then the contributions will be re-
funded to the employees with interest. For at least
the first two months, the dividends should take care
of the plan premiums. If it takes longer, we can
make company contributions for premiums and not
get into employee contributions until the entire
matter is finalized. It is a lot simpler for us to keep
track of the contributions rather than the insurance
company. When a new plan would be finalized,
there would be a premium adjustment one way or
the other in switching from one plan to another.
The report closed: "We will work as rapidly as possible
on the matter, but the language development and IRS
approval will take time."
Lewandowski next reported to the directors on Febru-
ary 6, 1979, stating that the matter of the pension plan
"is being worked on and some comparison data should
be completed within 30 days."
By letter dated February 16, i.e., nearly a month after
the event, Lewandowski informed the Union for the first
time that the amendment to the plan had been executed
by Respondent and Minnesota Mutual. The same letter
stated that Respondent intended "to review the entire
pension plan with the idea of making certain modifica-
tions, if possible, that would allow for the elimination of
employee contributions," and then noted, in seeming
contradiction of Lewandowski's January 18 and Febru-
ary 6 reports to the directors, that he did not "anticipate
1156
INTERMOUNTAIN RURAL ELECTRIC ASSOCIATION
any work or discussions on the subject for the next few
months."
A likely explanation for the assertion in Lewandows-
ki's letter that he anticipated no further activity regard-
ing the pension plan "for the next few months" is that
the Union, on February 12, had petitioned the NLRB for
an election among Respondent's "inside" employees5-a
development seemingly hardening his attitude toward the
Union.6 This explanation gains plausibility from Lewan-
dowski's then having received a letter, dated February 7,
from Minnesota Mutual, setting forth in elaborate detail
various calculations and projections that would obtain
under a proposed new pension plan, from his soon re-
ceiving a similar letter, dated February 16, from Peat,
and from his reporting to the directors on March 6:
Because of the organizing effort, this [the matter of
the pension plan] will have to be indefinitely post-
poned. However, we are obtaining immediate bene-
fits which are substantial in that the dividends are
coming back to the Company and will be used to
offset our cost. Since the Union got nothing in
return, I am sure that they will bring up the matter
in time, but it is doubtful that they will until the or-
ganizing matter is settled one way or the other.
Following Lewandowski's February 16 letter, the
Union next heard from Respondent upon receiving
this letter, dated April 18, from Lewandowski:
This letter is in reference to my correspondence
of February 16, 1979, concerning the Association's
pension plan.
As previously stated, our objective in reviewing
the plan and considering modifications was to see if
it was possible to eliminate the employees' contribu-
tion but yet provide the same level of benefits con-
tained in the existing plan, continue about the same
total amount of contributions that are presently
being made on behalf of the employees, and main-
tain approximately the same net cost to the Associ-
ation. Our review of the plan shows that these ob-
jectives cannot be met and, therefore, we are doing
nothing to modify the pension plan. Employees'
contributions will continue as they have in the past.
We are going to contact all of the employees who
have joined the pension plan this past January I and
notify them that contributions will continue and,
should somebody desire to drop out of the plan,
they will be allowed to do so. This was stated at
the meetings that were held when this subject was
discussed. Of course, anybody who had belonged
prior to January I will not be able to drop out of
the plan.
5 27-RC-5809.
e Thus, in a confidential memorandum to members of management,
dated April 16, 1979, Lewandowski stated, with reference to the "orga-
nizing effort that has recently taken place." that Respondent "would not
welcome the Union with open arms and . . would deal [with it] in a
cold, hard and arms' length manner." The document continued that,
should the organizing effort succeed, the office employees would be rep-
resented by the same union as those in "the existing bargaining unit." and
then repeated that "the relationship with [the Union] will he maintained
on a cold, hard and arms' length basis"
You have been previously notified that, in ac-
cordance with Internal Revenue regulations, divi-
dends are no longer being credited to employees
but being used to offset the Company's cost.
Also on April 18, Lewandowski disseminated this
memorandum among the employees:
You will recall that several months ago we had
meetings concerning our pension plan. At the meet-
ings, I had stated that we were going to be review-
ing the plan with an objective of seeing if it was
possible to eliminate the employees' contribution
but yet provide the same level of benefits contained
in the existing plan, continuing about the same total
of contributions that are presently being made on
behalf of employees, and maintaining approximately
the same net cost to the Association. We have
found that these objectives cannot be met and,
therefore, the pension plan will not be modified and
employees' contributions will continue as they have
in the past. During the meeting you were notified
that, in accordance with Internal Revenue regula-
tions, dividends are no longer being credited to em-
ployees but are being used to offset the Company's
cost.
You will also recall that at the meeting I stated
that should the employee contributions not be elimi-
nated then anybody who had joined effective Janu-
ary 1 would be given an opportunity to drop out of
the pension plan. This memorandum is notification
to you that, should you desire to drop out of the
plan, please let Tom Riffe know within the next 15
days. Of course, anybody who had belonged prior
to January 1 will not be able to drop out of the
plan.
In response to Lewandowski's April 18 letter, the
Union promptly invoked the grievance procedure in the
bargaining agreement. The gravamen of the grievance, as
set forth in a letter of May I from Mason to Tom Riffe,
Respondent's director of personnel, was Respondent's
"altering the employee Retirement Plan which is re-
ferred to in Article XVII of the Agreement." Riffe's re-
sponse, by letter dated May 10, was this:
Several months ago, Mr. John Meaders and yourself
were notified that Internal Revenue was coming out
with a new regulation which eliminated the applica-
tion of any dividends or profits back to a defined
benefit plan. Subsequent to that time, on February
16, 1979, John Meaders was notified by letter that,
in accordance with Internal Revenue regulations,
dividends would no longer be allocated to employ-
ee accounts. Should you have disagreed then, you
should have filed a grievance at that time. The time
period stipulation as noted in Article 21, Paragraph
A of the Collective-Bargaining Agreement requires
that a request for a Step A proceeding be initiated
within 5 days of the controversy. This was not
acccmplished, therefore, there is no grievance and
there is no issue.
1157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
An arbitrator thereafter rejected Respondent's contention
that the grievance was untimely, and an arbitrator's deci-
sion on the merits of the dispute was pending at the time
of the hearing herein.
In his report to the directors at their meeting on May
8, 1979, Lewandowski stated:
You will recall that we amended the [pension]
plan in accordance with IRS regulations so divi-
dends would be used to offset the Association's
cost.... [W]e notified the Union that we would
review the plan with the idea of seeing if it was
possible to eliminate employee contributions and
generally keep the same level of benefits. . . I was
not satisfied with the results of some studies. . .. A
lot of it appeared not to really reduce our costs and
some proposals were totally wrong and unaccepta-
ble.... Any further change would require union
acceptance (there is even a good chance we will
have to negotiate about the dividend that is now
being used to offset our costs). Because of the cir-
cumstances, I notified the Union that we were using
the dividend to offset our costs and were planning
no additional change at this time. They had a fit
and filed a grievance. They feel that the money is
theirs and, if it can't be put in the plan like previ-
ously, then it should be given back in some other
manner. Without eliminating the employee contribu-
tions, the benefits are substantial to the Company.
The dividends for last year were over $72,000 and
the end result is that our cost is being reduced by
one-third .. .
There still is a need to review the plan further
even if we need to make no concessions to the
Union.... There are . . . a number of items that
need to be explained and understood ....
I plan to start gathering data this summer for
comparisons and explanations. .... Any further
change would not be done until the next union ne-
gotiations, which would take place the last quarter
of 1980.
Regardless, in the meantime, our costs will be
substantially less.
In a later report to the directors, on September 4,
Lewandowski stated concerning the matter of the pen-
sion plan:
[T]he Union has filed unfair labor practice charges
regarding the pension plan. Regarding that matter,
we have been processing a grievance and the Union
has just demanded arbitration. It is the Union's con-
tention that the company had no right to eliminate
the dividend from the plan and just drop the matter.
. . . IRS eliminated the plow back of dividends
and, because of cost consideraticns, we would not
consider giving back that money to the employees
in some other form.
Meanwhile, on May 31, Mason and the Union's attor-
ney, Philip Hornbein, met with Respondent's attorney,
Martin Semple, to discuss the Union's grievance over the
pension plan. During that meeting, and again by letter
dated August 16, Hornbein requested:
. . .that the Company supply to the Union a copy
of the group retirement annuity contract between
the Company and Minnesota Mutual Life Insurance
Company and copies of correspondence, memoran-
dums, legal opinions, tax opinions, and other docu-
ments and papers relating to the Company's deci-
sion to divert to itself dividends and profits of the
Retirement Plan.
Semple replied to the May 31 request that he would see
what he could do, after which, under cover of a letter
dated July 20, he provided a copy of the pension plan as
then constituted, together with a booklet summarizing
the plan. Then, under cover of a letter dated October 31,
Semple supplied a copy of the contract between Re-
spondent and Minnesota Mutual. Semple's cover letter
included this:
I apologize for the delay in getting this material to
you. Since I have not reviewed the file in this
matter for some time, I overlooked the fact that I
had not responded to your last request.
Respondent previously had furnished the Union with a
copy of IRS Ruling 78-403 in response to a request
made at the December 22 meeting. Otherwise, the Union
received nothing in response to its requests.
Lewandowski testified that other documents were not
provided because some, in his view, were privileged
communications with counsel, and some contained infor-
mation about nonunit employees, which he considered
confidential. Lewandowski's testimony continued:
I felt that that information was not information that
should be given to the Union and would give them
an advantage in negotiations that possibly they
shouldn't have.... I'm not going to give the other
side everything about the pension plan, the inside
and outside, and the strategy in trying to negotiate a
plan.
C. Conclusions
The dividend matter: Section 8(d) of the Act states in
part:
[W]here there is in effect a collective-bargaining
contract . . . the duty to bargain collectively shall
also mean that no party of such contract shall ter-
minate or modify such contract, unless the party de-
siring such termination or modification-
(4) continues in full force and effect . . . all the
terms and conditions of the existing contract . . .
until the expiration date of such contract . ...
Section 8(d) further states that the duty to bargain "shall
not be construed as requiring either party to discuss or
agree to any modification" of the terms and conditions of
an unexpired contract absent a provision for reopening.
The Union thus would have been within its right to
hold Respondent to the letter of article XVII of the bar-
1158
INTERMOUNTAIN RURAL ELECTRIC ASSOCIATION
gaining agreement throughout the term of the agreement,
and, in so doing, to require the continued allocation of
dividends to those unit employees participating in the
pension plan. A determination that the Union relin-
quished that right must be grounded on "clear and un-
mistakable" evidence, for the "waiver of a statutory right
will not be lightly inferred." C & C Plywood Corporation,
148 NLRB 414, 416 (1964).
Respondent contends that the Union consented to the
abrogation of article XVII during the meeting of Decem-
ber 22, 1978, between Lewandowski and the two union
officials, Meaders and Mason. That the Union then and
thereafter was willing to forgo the dividend allocation,
to ensure the pension plan's continued IRS qualification,
is clear. It is equally clear, however, that this willingness
was contingent upon a quid pro quo in the form of Re-
spondent's taking over the contribution-shares of the
unit-participants; or, should that turn out to be unfeasi-
ble, upon its negotiating some other comparable conces-
sion. 7 This contingency perhaps was most graphically re-
vealed by Lewandowski in his report to the directors on
January 18, 1979, the very day the amendment to the an-
nuity contract was executed, that there was "no question
that . . . the elimination of employee contributions is
what will be required in getting the plan changed."
It is clear, finally, that whatever sincerity Lewan-
dowski had regarding a quid pro quo ceased to exist
about the time the Union petitioned for an election
among the inside employees on February 12, 1979. Thus,
he cryptically informed the Union on February 16 that
he did not "anticipate any work or discussions on the
subject for the next few months," he reported to the di-
rectors on March 6 that the matter would "have to be
indefinitely postponed . . . because of the organizing
effort," he advised the Union on April 18 that Respond-
ent was "doing nothing to modify the pension plan" and
that employee contributions "will continue as they have
in the past," and he reported to the directors on Septem-
ber 4 that, "because of cost consideraticns, we would not
consider giving back that money to the employees in
some other form."
It is concluded in these circumstances that the Union's
consent to the abrogation of article XVII, as concerns
the dividend allocation, was misleadingly induced and
perpetuated, and therefore of no jural effect. As stated in
Mor Paskesz, 177 NLRB 116, 119 (1968), "a consent
given upon unfulfilled conditions is no consent." Re-
spondent's conduct in this regard consequently failed to
comport with the 8(d) requirement that it continue "in
full force and effect . . . all the terms and conditions of
the existing contract," and, by so failing, violated Section
8(a)(5) and (1).B
I Contrary to the complaint, the weight of evidence compels the con-
clusion that Respondent did not enter into an enforceable agreement to
assume the participants' pension contributions as a quid pro quo, but
rather that it held his out as a strong likelihood, and that some other
concession would be made should that not be feasible
B While the complaint is not couched in terms of the abrogation of art
XVII, the issue was sufficiently litigated to warrant the finding of a io-
lation Niagara Falls Memorial Medical Center, Inc.. 236 NLRB 342, fn 2
(1978) Rejected is Respondent's contention that Citizens National Bank of
Willmar. 245 NLRB 389 (1979), is "particularly apropos." That case did
not involve the abrogation of an existing contract provision. Again refer-
The withholding of information: The Union's request for
information made on May 31, 1979, was ignored for
nearly 2 months, and then complied with in only token
fashion. Its iteration of that request on August 16 lan-
quished for about 2-1/2 months before being observed. as
previously, in only small part.
It is concluded, without need for analysis or case cita-
tion, that Respondent's failure to comply fully and
promptly with the Union's May 31 and August 16 re-
quests was unwarranted, therefore violating Section
8(a)(5) and (1) as alleged.9
IV. THE OTHER AI.I. TEI) VIOLATIONS
A. Background
In early 1979, a drive was undertaken to organize the
so-called inside or office employees of Respondent in the
five communities previously named. On February 12,
1979, as earlier mentioned, the Union filed for an NLRB
election seeking certificaticn as the representative of
those employees. A post-filing hearing was held on
March 2, after which the Acting Regional Director
issued a Decision and Direction of Election on March
21. The election followed on April 13, and, on August
31, after resolution of challenges to the eligibility of cer-
tain voters, the Union was certified as bargaining agent.
The conduct hereafter in issue took place at Respond.
ent's headquarters in Littleton.
B. Alleged Misconduct by Spencer Cronk
The allegation: The complaint alleges that Cronk, Re-
spondent's operations manager, violated Section 8(a)(1)
on March 9, 1979, by telling an employee that "a blan-
ket" had been placed on raises because of the pendency
of the election, by asking the employee what had caused
the employees to want a union, and by saying to the em-
ployee that she would not get a raise if the Union got in
but might if it did not.
The facs: On March 9, Barbara Hightower, a consum-
er accounting representative for Respondent, questioned
Cronk as to why Hightower had not received a raise
after 90 days on the payroll as Katherine Tate had.
Hightower, who had engaged in some union activities,
speculated that that may have been the reason She
raised the matter with Cronk because Lewandowski pre-
viously had told the employees to take any union-related
problems to Cronk.
Cronk replied that he would inquire about the status of
Hightower's raise and "get back to" her. Later the same
day, Cronk reported to her that the raise was not forth-
coming, explaining in part that Lewandowski "had put a
ring to Sec 8(d). the duty to bargain does not require either party "lo
discuss or agree to any modification" of the terms and conditions of an
unexpired contract."
9 .eV andlowski's professed opilnbon to the contrary Respondent failed
to make a showing that any of the requested material came within the
attorney-client privilege. It is no defense. moreover, that some of the in-
formation sought pertained to nonunit people See. e.g. Rockell-Sand-
ard Corporation, Transmission and A.4xel Division. Forge Dision, Ib6
NLRB 124. 132 (1967).
1159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
blanket on all raises . . . because of the filing"--a tacit
reference to the pending election matter.'0
Hightower asked what effect the union situation would
have on her raise prospects. Cronk answered that, "if the
Union comes in, you won't get your raise probably,"
adding: "[l]f the Union doesn't come in, then you will
probably get your raise."" During the same conversa-
tion, which lasted well over an hour and embraced a
considerable range of subjects, not all union related,
Cronk asked why the employees "were filing for a
union." Hightower answered that she could speak only
for herself, and that she was interested in "job security,
promotions, [and] raises." 2
Cronk admittedly "could have" remarked to High-
tower in this conversation that Lewandowski thought it
was a "slap in the face" for the employees to seek union
representation after all he had done for them.
Conclusions: It is concluded that Respondent violated
Section (8)a)(l) substantially as alleged by Cronk's telling
Hightower that Lewandowski "had put a blanket on all
raises . . . because of the filing" of the election peti-
tion; 3 by his saying to her that she "probably" would
not get a "raise if the Union comes in," but that she
"probably" would "if the Union doesn't come in"; 4 and
by his asking her why the employees "were filing for a
union." 5
C. The Lewandowski Memoranda
The allegation: The complaint alleges that Lewan-
dowski issued memoranda on June 27 and July 20, 1979,
which violated Section 8(a)(1) by threatening delays in
granting or the withholding of raises to discourage em-
ployee exercise of Section 7 rights, and further threaten-
ing to obstruct the employees in their exercise of those
rights.
The facts: As earlier stated, the election among the
inside employees was held on April 13, 1979. On June 26
the acting Regional Director issued a Supplemental De-
cision on Challenged Ballots, and on June 27 Lewan-
'0 Hightower is credited that Cronk spoke substantially as set forth
Cronk conceded as much, testifying that he "may have used the term 'a
blanket freeze,' or something like that, due to the fact that it [granting
raises] was illegal or improper . while the election was in process,"
and that he "may have" mentioned Lewandowski "in this regard "
I This is Hightower's credited version of Cronk's remarks. Cronk tes-
tified that he said Hightower "would be considered for a raise after this
matter was resolved" should the Union be "voted out," which corre-
sponds in substance with Hightower's testimony: but further testified that
he said "any future raises would depend on the negotiations" should the
Union get in, which differs significantly from the Hightower rendition.
Cronk's professed conditioning of raises on the outcome of negotiations if
the Union were to prevail came across as an after-the-fact refinement of
his comments to Hightower, and is not believed.
12 Hightower is credited that Cronk asked this question. Cronk, while
testifying that he "knew better than to ask her any direct questions," ad-
mitted that he "may have" achieved the same effect with Hightower and
others by saying that he was "unaware of what the problems had been as
far as the inside employees were concerned as to why they desired to
. have the Union represent them." That Cronk would conduct himself
in so subtle and circular a fashion in eliciting information from the em-
ployees did not carry conviction.
13 See, e g.. Chatfield-Anderson Co., Inc. d/b/a Truss-Span Company,
236 NLRB 50, 51 (1978).
14 See, e.g.. Hinky Dinky Super Markets. Inc.. 247 NLRB No 1h9
(1980). See, generally. Patsy Bee, Inc.. 249 NLRB 976 (1980).
1S See, e.g., Didde-Glaser. Inc., 233 NLRB 765 (1977).
dowski circulated the following document among Re-
spondent's 20 or so supervisors:
June 27, 1979
TO: All Supervisors
FROM: Stanley R. Lewandowski, Jr., General
Mgr.
SUBJECT: Challenges for the Union Election
A decision has been issued by the [Regional] Di-
rector of the NLRB in Denver. The decision states
that the position of Secretary to the Director of
Personnel and Director of Member Relations and
Energy Conservation is excluded; the Energy Con-
servation Specialist is excluded; the Secretary to the
Director of Electrical Engineering is included; The
Plant Accountant is included; and the Computer
Programmer-Operator is included.
Since this decision is not acceptable to the Asso-
ciation, the matter will be appealed to Washington.
Our appeal must be submitted by July 9. Martin
Semple will be at the Association next Monday
taking depositions of people supporting our posi-
tion. This will delay the final outcome substantially.
The initial estimate for this portion was that should
an appeal be sent to the NLRB, a decision from
them should [arrive] within about three months.
However, it takes forever for the NLRB to do any-
thing. The [Regional Director] must file a brief and
we know that there are substantial delays on getting
anything out of the Denver office. I don't know
how the Washington office is currently operating
but it very well could be six months before any de-
cision is arrived at. You will recall in a previous
memorandom that, should an unacceptable decision
be arrived at in Washington, we have a right to
proceed to the Tenth Circuit Court of Appeals and
that again could take an additional three years.
After next Monday, it should be a substantial period
of time before we hear anything additional on the
matter. I will keep you informed. Please pass this
information on to your employees.
Lewandowski testified that he prepared this memoran-
dum to provide the supervisors with answers to recur-
rent questions they were being asked by the employees.
Copies of the document itself came into the possession of
at least two unit employees.
On July 20 Lewandowski promulgated this memoran-
dum to the supervisors:
July 20, 1979
TO: All Supervisors
FROM: General Manager
SUBJECT: Labor Relations
There . . . have been a couple of events that
have transpired that I thought I would let you
know about. The first is that the NLRB has post-
poned the hearing on unfair labor practice charges
that was to be held July 24 to November 14. The
NLRB attempted to get the matter resolved with-
1160
INTERMOUNTAIN RURAL ELECTRIC ASSOCIATION
out the hearing; however, we refused. They then
immediately came in stating that they desired to
postpone the hearing. In checking into this, there
are a couple of circumstances. One, it is very likely
that Barbara Hightower may not be available or
they cannot locate her for the case. Second, we
have an indication that the judge from San Francis-
co thought that there was no merit in the case;
however, the local district felt that they were not in
a position to withdraw the charges. It is possible
that we will never go to hearing on this matter.
The second item is the Union has filed their state-
ment in opposition to [the] request for review of
challenged ballots to the NLRB in Washington. Ap-
parently, the Union is becoming frustrated as it is
affecting the language in some of the work they are
puttinq out. The following is exact langauge as it
appears in their statement. (I) "The request is palpa-
bly frivolous. It appears to us that the primary pur-
pose of the request is to serve as an outlet for the
employer's venom and irrational hostility against
the Regional Director, rather than as a serious peti-
tion to the board." (2) "The employer's entire
course of conduct in this matter has been one of ob-
struction, to frustrate the process of the Board and
to deprive the Company's employees of an opportu-
nity to bargain through a representative of their
own choosing."
I assume they will become very frustrated if the
matter goes the entire three years before the Tenth
Circuit Court of Appeals. I have been informed by
Martin Semple that it is very possible that legally
we probably should not change any salaries because
of the pending matter during the entire three-year
period of time. I have not made a firm decision yet,
but I am leaning toward the possibility that I will
let the matter ride the entire three year period of
time.
I also wanted to mention that we will be having
a comprehensive in-house, two-day seminar on the
entire gamut of labor relations; i.e., negotiating and
renegotiating contracts, maintaining and recapturing
management rights and the entire process of decerti-
fication. In this connection, I have retained the law
firm of Jackson, Lewis, Schnitzler & Krupman.
This firm is composed of 50 attorneys with its head-
quarters in New York and branch offices in Atlanta
and Los Angeles who do nothing but labor relations
work.
Lewandowski testified that this document was issued
"to keep the supervisors abreast of what was going on,"
but that, unlike the one of June 27, he "did not antici-
pate" that it would be distributed to, or that the supervi-
sors would discuss its contents with, the employees.
Even so, it purposely was given to Dorothy Pearce, who
was previously determined by the Acting Regional Di-
rector to be in the bargaining unit; and apparently, like
the earlier one, got into the hands of other unit employ-
ees as well. Because of this latter development, accord-
ing to Lewandowski, Respondent initiated the practice,
as concerns later memoranda not meant for rank-and-file
distribution, of marking them "confidential." As he put
it, "you live and learn." The record, however, contains
an April 1979 memorandum so labeled, betraying the ex-
istence of the practice before July 20 and arguably sug-
gestinq that Respondent contemplated dissemination of
the contents of the July 20 document among those in the
unit.
Conclusions: The June 26 memorandum, on its face
meant for employee consumption, stated that a Board de-
cision on Respondent's forthcoming appeal of the Sup-
plemental Decision could "very well" take 6 months,
and that an appeal of an "unacceptable" Board decision
to the Tenth Circuit "could take an additional three
years."
The July 20 memorandum, while not facially intended
for the employees, in fact did reach some of them-a
foreseeable development inasmuch as it carried no pro-
scription against such dissemination and was similar in
tenor to that of June 26. It again raised the prospect of a
3-year delay occasioned by the appeal of an adverse
Board decision to the Tenth Circuit, to which it added
that salaries-and, by implication, wages-would likely
be held constant for that "entire three year period of
time." It reported as well that Respondent had retained a
national law firm specializing in labor relations to con-
duct a "comprehensive" seminar covering "the entire
gamut of labor relations," including "the entire process
of decertification."
The message inherent in the memoranda was that Re-
spondent was intent upon forestalling the effect of the
election for several years through the appeal process,
meanwhile depriving the employees of any salary/wage
progression, and then subverting the election outcome, if
necessary, by resort to the decertification procedure. It is
concluded that, by thus indicating to the employees that
the Union's election victory and the organizational effort
that preceded it not only were a futility, but would cause
economic detriment, Respondent violated Section 8(a)(1)
substantially as alleged. Two Guys Discount Department
Stores, Inc., a wholly owned subsidiary of Vornado, Inc.,
242 NLRB 1139 (1979); Kent Brothers Transportation Co.,
188 NLRB 53, 59 (1971); L. F Strassheim Co., 173
NLRB 846, 848 (1968).
D. The Reprimand of Kathleen Gunton
The allegation: The complaint alleges that Steve Glaim,
Respondent's manager of office services, violated Section
8(a)(1) on July 5, 1979, by issuing a written reprimand to
Gunton because of her exercise of Section 7 rights.
The facts: On July 3, 1979, an angry customer deposit-
ed a bag of spoiled food in the reception area of Re-
spondent's headquarters building in Littleton, contending
that a failure by Respondent to supply power had cre-
ated the problem. In the aftermath, as is more fully de-
veloped later, Katherine Tate had an exchange with
Cronk which irritated him. Mike Deans, Respondent's di-
rector of electrical engineering, consequently directed
Tate to see him after work that day, leaving the impres-
sion while doing so that she might be suspended. Tate
was Deans' secretary. Tate thereupon informed Gunton
of the situation, and asked that she be present as a wit-
1161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ness when Tate met with Deans. Gunton was a work
order clerk in the accounting department.
At quitting time, Gunton went to Tate's work area
outside Deans' office. Also there, in addition to Tate,
were Susie Deikman and Myrna Schmidt. Deikman's
regular work station was in the front lobby as a PBX op-
erator. Schmidt, a secretary to management, regularly
worked near Tate. Several minutes after Gunton's arriv-
al, Deans summoned Tate into his office, consenting to
let Deikman have a final word with her first. Deikman
and Schmidt then left, leaving Gunton behind. Gunton
remained outside Deans' open door, maintaining visual
contact with Tate and overhearing what was said.
Upon hearing Deans state that Tate probably would
be suspended, but that he could not be certain because
he could not get in touch with Cronk, Gunton asked
Tate if she wanted a witness. Tate nodding in the affirm-
ative, Gunton entered the room and asked Deans if there
was not some way he could speak with Cronk so that
Tate's status would be clarified before the Fourth of July
holiday. Deans answered that he could not reach Cronk,
and Gunton asked if he might be reached on his car
radio. With that, Deans commanded Gunton to "get the
hell out." As Gunton started to say something else,
Deans stood up and repeated, "Get out!" Gunton then
left.
On July 6 Glaim presented Gunton with the following:
July 5, 1979
TO: Kathy Gunton
FROM: Steve Glaim
SUBJECT: Incident in Mike Dean's Office on July
3, 1979
I have been informed that at approximately 5
p.m., on July 3, 1979, you entered Mike Dean's
office without any prior authorization and with no
official duties to perform on behalf of IREA. Mr.
Deans was most upset with your presence in his
office at that time and felt that your conduct was
inappropriate.
Please be aware of the fact that employees of In-
termountain Rural Electric Association are not au-
thorized to visit other areas of the office building
after working hours unless they have authorization
or official business to conduct. This is necessary for
the efficient running and the good order of the or-
ganization.
This correspondence is intended as a reprimand
for your inappropriate conduct on July 3, 1979. A
copy of this correspondence will be placed in your
permanent personnel file.
Name ------- Date----
I acknowledge that I received a copy of this corre-
spondence and read its contents.
Gunton responded that she wished to tell her side of
the story. Glaim said that she should put it in writing,
and that it would be placed, with his memorandum, in
her personnel file. Gunton promptly submitted the fol-
lowing document, which was put in her file:
July 6, 1979
TO: Steve A. Glaim
FROM: Kathy Gunton
SUBJECT: Written Reprimand
First of all I would like to state that I was in
Kathy Tate's office not Mr. Deans' at 5:05 p.m., on
July 3, 1979, waiting for Kathy to go home. She
had asked me to wait and if Mr. Deans was intend-
ing to fire her to be her witness. Since I have done
this on occasion for Dorothy Pearce I felt that
Kathy had the same right. Also, since she was wait-
ing after 5 p.m., her own time and my own time,
without being paid for doing this I did not feel that
I was going against the Association's policy.
Second, I would like to state that I was in Mr.
Deans' office at 5:20 p.m. on Kathy's authorization
as her witness as to what was being said after com-
pany hours. All the time Mr. Deans was talking to
Kathy previously I was in her office and as Mr.
Deans left his door open the whole time where I
could hear anything said Kathy did not feel it was
against her right to have a witness.
I would also like to add that as soon as Mr.
Deans asked me to leave I did so promptly.
I do not concur with the statements made in
regard to the written reprimand I received dated
July 5, 1979.
Glaim testified that Fred Williams, Respondent's assist-
ant general manager, told him on July 5 that Gunton had
entered Deans' office "uninvited and unannounced and
more or less butted into the counseling that was taking
place" between Deans and Tate, that he, Glaim, saw this
as "an inexcusable act," and that he therefore "drafted
up" the reprimand letter. Glaim added that Gunton "had
no business to be in the office building, let alone in an-
other department area" after hours. Glaim asserted that
he told Lewandowski of the incident before drafting the
letter, and that Lewandowski, although making no rec-
ommendation, agreed that Gunton's conduct had been
"inexcusable." Glaim testified that he issues reprimands
without consulting Lewandowski "if they're of a minor
nature," but that he regarded Gunton's actions to be mis-
conduct of "a major nature" because "she was infringing
on another department and a supervisor."
The employees in the accounting department had been
told on April 24, 1979, that they were not to be at their
desks before 7:55 a.m. and that they "had to be out" not
later than 5:05 p.m. The stated rationale for tis, accord-
ing to Gunton's credible testimony, was to avoid uninvit-
ed liability for overtime pay. Further on, May 17 the ac-
counting department employees were instructed that
they were not to leave their work area without clearance
from Suzy Holman, a supervisor in the department. The
record affords no substantial basis for inferring, however,
that this stricture contemplated employee movements
after hours.
Lewandowski conceded that Gunton's was the only
written reprimand between January 1978 and the hearing
"for unauthorized visits to other areas of the building
after working hours." There is no evidence, for that
1162
INTERMOUNTAIN RURAL ELECTRIC ASSOCIATION
matter, that any such reprimands ever had issued before
Gunton's. Neither Deikman nor Schmidt received ad-
verse comment stemming from the incident in question,
at least so far as the record shows; indeed, Deikman cre-
dibly testified that she commonly remained in the build-
ing after hours without any problem.
Gunton perhaps was the foremost union proponent
among Respondent's employees. She provided the impe-
tus for the first organizational meeting, contacting the
union steward for the "outside" employees, Gordon No-
vacek, who conveyed her interest to a union official. She
"set up" most of the ensuing organizational meetings,
and typed letters informing the employees of them. She
also gathered all of the authorization cards after they had
been signed, submitting them to the Union; and was a
union observer during the election. Respondent concedes
in its brief that Gunton's "strong" union proponency was
"common knowledge."
Conclusions: It is concluded that Gunton, by entering
Deans' office on Tate's behalf and proposing that an at-
tempt be made to reach Cronk by car radio for clarifica-
tion of Tate's job status, had joined with Tate for "the
purpose of . . . mutual aid or protection," that her so
doing therefore was protected by Section 7 of the Act,
and that the ensuing reprimand consequently violated
Section 8(a)(1) as alleged. Richard M. Brown, D. 0.. and
Donald R. Janower, D. O., a Co-Partnership d/b/a Park
General Clinic, 218 NLRB 540, 546-547 (1975). Cf.
Montgomery Hospital, 233 NLRB 752, 754-755 (1977).
It does not detract from this conclusion that Gunton
did not have a personal job stake in the outcome of the
meeting between Deans and Tate. Quoting from
N.LR.B. v. Peter Cailler Kohler Swiss Chocolates Compa-
ny, Inc., 130 F.2d 503, 505-506 (2d Cir. 1942):
When . . . other workmen in a shop make common
cause with a fellow workman over his separate
grievance . . . they engage in a "concerted activi-
ty" for "mutual aid or protection," although the
aggrieved workman is the only one of them who
has any immediate stake in the outcome. The rest
know that by their action each one of them assures
himself, in case his turn ever comes, of the support
of the one whom they are all then helping; and the
solidarity so established is the "mutual aid" in the
literal sense.' 6
It also is concluded that the reprimand of Gunton,
while triggered by her activities in aid of Tate, in fact
was in recrimination for her union sympathies and activi-
ties, thereby violating Section 8(a)(3) in addition to Sec-
tion 8(aXl1).L7 This conclusion is based upon the follow-
ing array of considerations:
16 Respondent's efforts to prove the existence of a prohibition, quoting
from Gunton's reprimand, against "visitlingl other areas of the office
building after working hours" unless authorized or on official business
were unconvincing. Emerson Electric Co.. US. Electrical Motors Division,
185 NLRB 346 (1970), thus is distinguishable in that those invited by the
aggrieved employee in that case to act as witnesses left their work sta-
tions contrary to a "well-established rule" against so doing without con-
sent, and, unlike Gunton, they were insubordinate in the face of a subse-
quent order to return to their stations.
I1 Although the complaint does not include an allegation that the rep-
rimand violated Sec. 8(a3), the issue was sufficiently litigated to warrant
(a) Gunton was known by Respondent to be a
"strong" union adherent.
(b) The weight of evidence leaves little doubt that Re-
spondent was hostile to the organization of the inside
employees. Among the several indicia of this are Lewan-
dowski's June 27 and July 20, 1979, memoranda, found
above to have contained unlawful elements, and Cronk's
admission that he "could have" told Hightower that
Lewandowski thought it a "slap in the face" for the
inside employees to seek union representation after all he
had done for them.
(c) To the extent that the reprimand is couched in
terms of a prohibition against "visit[ing] other areas of
the office building after working hours," it betrays pre-
text. Not only is there no evidence that a reprimand ever
before had issued on that basis, but, as mentioned in a
previous footnote, Respondent's efforts to prove the ex-
istence of such a ban pertaining to after-hours activity
were unconvincing.
(d) Further suggestive of pretext was Glaim's consult-
ing with Lewandowski before issuance of the reprimand.
The hyperbole implicit in Glaim's assertion that this was
dictated by the "major nature" of Gunton's offense.
given that Gunton promptly left when so directed by
Deans, only underscores the disingenuousness of it all.
E. Deans' Alleged l'hreats to Katherine ate and
Tate's Suspension and Discharge
lhe allegations: The complaint alleges that Deans vio-
lated Section 8(a)(1) on July 3, 1979, by threatening to
suspend Tate and on July 10 by threatening to discharge
her because of her union activities, and that Respondent
violated Section 8(a)(3) and (1) on July 5 and 13 by im-
plementing those threats.
The facts: Tate, in addition to serving as Deans' secre-
tary, operated the switchoard in the reception area on a
relief basis from 3:30 to 3:45 each afternoon. On July 3,
1979, as earlier mentioned, a customer left a bag of
spoiled food in the reception area. After the customer's
departure and while Cronk, who had been trying to ap-
pease him, was still in the area, there was much merri-
ment among the employees over the incident and how to
dispose of the food. Cronk seemingly was a willing par-
ticipant in the fun.
As Cronk began to leave, Tate asked that he take the
food with him, adding that, if he did not, she would
"take it up and put it on [his] desk." Tate was doing
switchboard duty at the time, and the food was near her.
Cronk responded that he did not "carry out trash," and
that, if Tate were to put it on his desk, "we will find out
who takes who where," Tate countered that she did not
"sit with trash," and Cronk remarked, "Go ahead and
have a wildcat walkout." Tate thereupon gathered her
things, arose, and started walking as if to leave the area.
Before she had gone far, however, a call came into the
switchboard. She returned to handle it, and finished out
her allotted time there.
such a finding Niagara bFltL Memorial Medical Center. Inc.. 236 NlRB
342. fn 2 (1'78)
1163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tate testified that she was "just goofing around" when
she left the switchboard. Whether or not that was
Cronk's immediate perception, he said nothing at the
time. He testified that, "after a few minutes of contem-
plation," however, he "realized that that was an inappro-
priate action for Miss Tate to take," and that, becoming
"somewhat upset." he reported it to Deans.
Upon Tate's return to her desk as Deans' secretary,
Deans said he had some "pretty heavy stuff to lay on"
her. He then asked what had happened "down at the
switchooard." After listening to Tate's recital, Deans
commented that he had been thinking of suspending her,
but, now that he had "learned the gist of' the matter, he
felt he should talk to Cronk again, and would "get ahold
of" Tate later.
Deans next spoke with Tate shortly after 5 that after-
noon.' 8 He said that he had been unable to reach Cronk;
that he, Deans, was about to go on vacation, and that he
feared that "they" would not withhold suspending Tate
until his return. Deans' representation notwithstanding,
he apparently had talked to Cronk. Cronk testified that
Deans reached him on his car radio about 5, asking if he
had told Tate to have a walkout, and that he replied that
he could not remember.
Two days later, July 5, Cronk presented Tate with the
following:
July 5, 1979
TO: Kathy Tate
FROM: Spencer Cronk
SUBJECT: Incident at Switchboard on Tuesday,
July 3
On Tuesday, July 3, 1979, at approximately 4
p.m., you were working as switchboard operator.
You engaged me in a conversation relating to
spoiled meat which was left by a consumer with
whom I had been engaged in conversation. In the
course of this conversation you made remarks and
suggestions which I regard as acts of insubordina-
tion and disrespect for your supervisor and adminis-
trator of IREA. Such disrespect and insubordina-
tion cannot be tolerated of any employees of Inter-
mountain.
Your conduct on July 3, 1979, was unbecoming
for an employee and is regarded by me as a most
serious breach of the standard that is expected of
our employees. Such conduct cannot and will not
be tolerated by Intermountain.
Accordingly, I am suspending you without pay
for a period of 3 working days commencing at
12:45 p.m., as a disciplinary action resulting from
your disrespectful and insubordinate conduct. Since
your regular supervisor in your capacity as secre-
tary is on vacation, I will immediately communicate
this action to him upon his return.
This correspondence will be placed in your permanent
file. I request that you sign this letter indicating that you
have received a copy and are aware of its contents.
' This is the encounter giving rise to the reprimand of Kathleen
Gunton, discussed previously.
Name ------- Date----
I hereby acknowledge that I received a copy of this
correspondence and read its contents.
Tate wrote on the bottom: "I do not concur with the
above statements."
On July 9, the last day of her suspension, Tate was
given a note by her doctor, for tender to Respondent,
"strongly" recommending that she be given a l-week
leave of absence "because of health problems." The note,
which did not specify the nature of the problems, closed,
"Please don't underestimate the importance of this."
Returning to work on July 10, Tate showed the note
to Deans and announced that she was going to take a
leave of absence as prescribed. Deans took the matter up
with Fred Williams, his immediate superior, who re-
ferred him to Lewandowski. Lewandowski telephoned
the originating clinic, verifying the note's authenticity,
but made no effort to speak with the doctor or otherwise
ascertain the nature or seriousness of Tate's condition.
He and Deans assertedly then discussed whether the note
gave rise to "a real need for" a leave of absence. Ac-
cording to Lewandowski, Deans said that "a substantial
amount of work" had accrued during Tate's suspension,
and that he consequently could not spare her. Lewan-
dowski testified that Deans also mentioned that Tate had
wanted to take a trip and had no vacaticn entitlement,
the implication being that health was not the true reason
for her request. Lewandowski continued that he consid-
ered the form of the note to be strange if there was a
genuine health problem-"Why did he [the doctor] not
just give her a note excusing her from work [instead of]
requesting leave?" Lewandowski concluded that Tate's
request should be denied.
When Deans informed Tate of this, she declared that
she had to follow her doctor's orders regardless. Deans
replied that she would "probably be fired" if she did,
and Tate asked if that meant she was fired as of then.
Deans answered that it did not, but that she "will prob-
ably be fired" should she fail to show up for work. Tate
brought the exchange to a close by stating that she
would return to work for a week and then leave.
Deans and Lewandowski thereupon collaborated in
the preparation of the following memorandum:
July 10, 1979
TO: Tom Riffe, Director of Personnel & Training
FROM: Mike Deans, Director cf Electrical Eng.
SUBJECT: Kathy Tate
On the afternoon of Tuesday, July 10, Kathy
Tate requested a one week's leave of absence based
on a note apparently handwritten by a doctor. The
leave of absence was not granted for three reasons:
1. It is not only this department's but generally
the Company's policy that leave of absence will
not be granted unless such leave would not inter-
fere with the efficient operation of the Company.
2. It was necessary to give Mrs. Tate a 3-day
suspension which expired this afternoon because
of a serious infraction. The workload caused be-
1164
INTERMOUNTAIN RURAL ELECTRIC ASSOCIATION
cause of that absence and the general work
schedule precluded any granting of leave. It is es-
sential that Kathy Tate's position be filled.
3. The note from the physician did not state
that Kathy Tate was unable to work for medical
reasons. It only stated that it was suggested that
she be given a leave of absence. From this, I
gathered that a pressing medical emergency did
not exist but merely a suggestion that she might
need some time off.
Upon being notified that the leave was not grant-
ed, Mrs. Tate indicated that she was obeying her
doctor and leaving anyway. She left the office only
to return a short time later stating that she would
be back at work next Wednesday, July 18. 1 indicat-
ed to Mrs. Tate that she was not authorized to
leave and should she be absent without authoriza-
tion she would be terminated. She asked if she was
terminated at the present time. I indicated that was
not the case but it would be if she was not back at
work.
It is my intention to allow Mrs. Tate time to re-
consider her actions and return and fill her position.
However, if she does not do that within the next
day or two, then I have no choice but to effect her
termination. In the meantime, I would like to have a
Kelly Girl as soon as possible, preferably starting
tomorrow at 8 a.m.
I considered that Mrs. Tate disobeyed a direct
order in not immediately starting work, that she is
disobeying known instruction to be at work during
ail work hours, and not to be absent when not au-
thorized and also consider her behavior in leaving
was close to gross insubordination. I would appreci-
ate your inserting this memorandum in her person-
nel file and further action will [warrant] either dis-
missal if she does not return or a letter of reprimand
or other disciplinary action because of leaving her
work place without authorization.
While this memorandum on its face was Deans', he testi-
fied that Lewandowski assisted "in the use of proper
grammar, proper phraseology, punctuation, those kinds
of things"; in fact, he testified that the original longhand
draft was written by Lewandowski. Deans conceded that
Lewandowski never before had involved himself in
Deans' memoranda to such an extent.
Hearing nothing in the interim, Tate returned to work
on July 18 only to be told by Williams that a termination
letter had been sent. She then left. The letter, dated July
13 and received by her a day or so after Williams' disclo-
sure, was signed by Deans. It stated:
You are hereby notified that you have been official-
ly terminated from employment as of 10 a.m.,
Friday, July 13, 1979, for being absent from work
without proper authorization.
Respondent's manual of personnel policies then in
effect provided that "leave of absence may be granted
for illness or other urgent or vital personal reasons," and
that "approval must be obtained from the General Man-
ager in writing." Lewandowski testified that he granted
a leave of absence to an employee in 1974 or 1975 be-
cause of pregnancy, but that he denied the request of
Suzy Holman, a supervisor, in the summer of 1979. Hol-
man's husband was assuming custody of his children by a
previous marriage, and she wished to be at home with
them for a time. Lewandowski rejected the request be-
cause it was not a "real emergency situation," beyond
which he was concerned about her being suitably re-
placed should her absence turn into "an extended-type
thing."
Tate was prominently prounion. Several organizational
meetings were held in her home, she signed an authoriza-
tion card, and she distributed cards to her coworkers.
Her union sympathies were "common knowledge" to
management, according to Deans, and were "a source of
discomfort" to him. Deans elaborated that he thought
some of her duties as his secretary were incompatible
with her having union representation, and that, the way
he "looked at it," the only way out of her dilemma was
for her either to renounce the Union or be terminated.
Deans continued that he spoke with Lewandowski and
Williams about this "several times," and that, "shortly
after" one such discussion near the "end of June," Wil-
liams instructed him to "document any errors" in Tate's
work. This instruction was forthcoming, according to
Deans, because of the persistency of mistakes by Tate.9
A few days before her discharge, Tate was introduced
by Deans to two new employees as "our union rabble-
rouser." Tate credibly testified of an incident in March
1979 in which Cronk, after saying that she was slated to
attend a training session in April "if you're still here,"
commented, "Oh, I shouldn't say that; you will file an
unfair labor practice charge against me."
Respondent took the postition in the pre-election hear-
ing that Tate should be excluded from the bargaining
unit on the ground that she was a confidential employee.
The Acting Regional Director rejected that position in
his Decision and Direction of Election. On Respondent's
request for review, the Board sustained the Acting Re-
gional Director. Respondent next challenged Tate's
ballot, contending that changes in her duties since the
representation hearing had rendered her a confidential
employee. This contention likewise was rejected by the
Acting Regional Director in a Supplemental Decision
dated June 26, 1979. The Acting Regional Director again
was sustained by the Board as concerns Tate by an order
issuing on August 17.
Tate had begun working for Respondent in November
1978.
Conclusions: It is concluded that the suspension and
discharge of Tate were prompted by her union sympa-
thies and activities, thereby violating Section 8(a)(3) and
(1) as alleged 2 0 It is further concluded that Deans' re-
" Yet, in a letter of recommendation written about a month before
Tate's discharge, Deans stated that she performed her duties "in a highly
efficient and professional manner with a minimum of supervision." and
was considered to be "a very productive and valuable employee"
20 Despite the recurrent determinations to the contrary in the represen-
tation case, Respondent persists in its contention that Tate was a confi-
dential employee It further contends that, as such, she is outside the pro-
Continued
1165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
marks to Tate on July 3 that he had been thinking of sus-
pending her and on July 10 that she would "probably be
fired" if she failed to report for work were similarly mo-
tivated, thus violating Section 8(a)(1) as alleged.
These conclusions derive from the following aggregate
of factors:
(a) It was "common knowledge" among management
that Tate was prominently prounion.
(b) Tate's union sympathies were "a source of discom-
fort" to Deans, who felt that her duties as his secretery
were incompatible with her having union representation.
Deans not only spoke "several times" with Lewan-
dowski and Williams about this, but felt that the only so-
lution was for Tate either to renounce the Union or be
terminated.
(c) That Respondent was intent upon building a case
against Tate, giving colorable validity to a later imposi-
tion of sanctions, is revealed by Williams' having in-
structed Deans in late June-i.e., perhaps I week before
her suspension and 2 weeks before her discharge-to
"document any errors" in her work. The weight of evi-
dence, including Deans' previous letter of recommenda-
tion, indicates that Tate was a more-than-adequate em-
ployee, and undercuts the bona fides of such a documen-
tation procedure.
(d) The general merriment surrounding the spoiled
food incident tends to corroborate Tate that she was
"just goofing around" during her momentary absence
from the switchboard. Also corroborative is Cronk's ad-
mission that it did not occur to him until later, "after a
few minutes of contemplation," that Tate's behavior was
"inappropriate." This suggests that Tate's conduct nei-
ther was nor perceived as being of a seriousness warrant-
ing any kind of discipline, let alone a 3-day suspension,
but was seized upon as a convenient pretext to punish
her for her union involvement.
(e) Regarding the discharge, the stated reasons for
denying the leave of absence are unconvincing, indicat-
ing that the denial was in the expectation that Tate nev-
ertheless would follow the doctor's recommendation,
thereby presenting Respondent with a sure-fire chance to
terminate her for "insubordination." Lewandowski's pro-
fessed reservations over the form of the doctor's note
can only be described as the quibbling of one with an ul-
terior motive. The same can be said of his checking with
the clinic concerning the note's genuineness, but not
bothering to inquire into the nature and seriousness of
Tate's health problem.
Equally as transparent is the assertion that Deans
could not spare Tate because of workload considerations.
Her request was for only one week's leave, Respondent
seemingly had no hesitancy about workload when it un-
tection of the Act. The Board recently stated in Los Angeles New Hospi-
tal, 244 NLRB 960, fn 4 (1979): "[T]hat confidential employees do not
enjoy protection under the Act, although consistent with the decisions of
several courts of appeals, is, with all respect to those courts of appeals,
inconsistent with current Board law." The Board continued in the same
footnote "It is well settled that it is the duty of an Administrative Law
Judge to apply established Board precedent which the Supreme Court
has not reversed." To like effect are Peavey Company, 249 NLRB 853, fn.
3 (1980), and Hendricks County Rural Electric Membership Corporaltion,
236 NLRB 1616, 1619 (1978).
lawfully suspended her a few days before, and temporary
fill-in help apparently was readily available. 2 1
(f) Lewandowski's heavy involvement in the matters
immediate to Tate's discharge-even to the point of writ-
ing the rough draft of the memorandum to the director
of personnel that issued in Deans' name-indicates that
this was seen as a matter of great sensitivity in which
policy considerations transcended those usually obtaining
when adverse action against an employee is contemplat-
ed.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(5) and (1) of the
Act by:
(a) Abrogating article XVII of the 1977-80 bargaining
agreement as concerns the allocation of pension plan
dividends, effective January 1, 1979, without valid con-
sent from the Union.
(b) Failing to comply fully and promptly with the
Union's requests of May 31 and August 16, 1979, for in-
formation underlying Respondent's decision to alter the
application of dividends under its pension plan.
2. Respondent violated Section 8(a)(3) and (1) of the
Act by:
(a) Suspending Katherine Tate on July 5, 1979, and
discharging her on July 13.
(b) Issuing a written reprimand, dated July 5, 1979, to
Kathleen Gunton.
3. Respondent violated Section 8(a)(1) of the Act by:
(a) Cronk's telling Barbara Hightower on March 9,
1979, that Lewandowski "had put a blanket on all raises
· . because of the filing" of an election petition; his
saying to her that she "probably" would not get a raise
"if the Union comes in," but that she probably would "if
the Union doesn't come in"; and his asking her why the
employees "were filing for a union."
(b) Lewandowski's issuing memoranda on June 26 and
July 20, 1979, that indicated to the employees that the
Union's election victory, and the organizational effort
that preceded it, not only were a futility, but would
cause them economic detriment.
(c) Deans' remarking to Tate on July 3, 1979, that he
had been thinking of suspending her and on July 10 that
she would "probably be fired," both statements having
been prompted by Tate's union sympathies and activities.
ORDER 2 2
The Respondent, Intermountain Rural Electric Associ-
ation, Littleton, Castle Rock, Conifer, Strasburg, and
Woodland Park, Colorado, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
21 The record suggests that, starting on or about July I1, Respondent
used a Kelly Girl as a temporary fill-in for Tate.
2 All outstanding motions inconsistent with this recommended Order
hereby are denied. 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
1166
INTERMOUNTAIN RURAL ELECTRIC ASSOCIATION
(a) Refusing to bargain collectively with International
Brotherhood of Electrical Workers, Local No. 111, as
the representative of the employees in the appropriate
unit described below, by abrogating article XVII of the
1977-80 bargaining agreement between Respondent and
the Union as concerns the treatment of pension plan divi-
dends or by abrocating any other provision of said agree-
ment without the valid consent of the Union. The appro-
priate unit is:
All production and maintenance employees em-
ployed by IREA at and out of its Littleton, Colora-
do, place of business, and at or out of its branch
places of business, including Castle Rock, Conifer,
Strasburg, and Woodland Park, Colorado, including
the warehouseman, the janitor, the assistant engi-
neers, and chain and rod man, excluding office
clerical employees, guards, professional employees,
and supervisors as defined in the Act.
(b) Refusing to bargain collectively with the Union, as
the representative of the employees in the above unit, by
failing to provide the Union, promptly upon request,
with complete information underlying Respondent's deci-
sion to alter the application of dividends under its pen-
sion plan or with any other information to which the
Union is lawfully entitled as bargaining representative.
(c) Discharging, suspending, reprimanding, or other-
wise discriminating against employees for engaging in
union or concerted activities protected by the Act.
(d) Telling employees that "a blanket" has been put on
raises "because of the filing" of a petition for a union
election, and that raises probably will not be forthcoming
"if the Union comes in," but probably will be "if the
Union doesn't come in."
(e) Asking employees why the employees "were filing
for a union."
(f) Indicating to the employees, by memoranda or oth-
erwise, that the Union's election victory and the organi-
zational effort preceding it were a futility and would
cause them economic detriment.
(g) Telling employees, in response to their union sym-
pathies and activities, that it is thinking of suspending
them or that they will "probably be fired."
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action:
(a) Rescind the change in the treatment of pension
plan dividends, effective January 1, 1979, as it affects em-
ployees in the above unit, and execute whatever docu-
ments, make whatever remittances, and otherwise do
whatever is necessary to restore the situation, as con-
cerns employees in the above unit, to that which would
now obtain had the change never been made. 23
23 The Union proposes in its brief that, as an alternative to restoration
of the status quo ante, it be given the option of restoring and continuing
the arrangement whereby Respondent made all pension contributions.
with amounts withheld from employee pay for that purpose being refund-
(b) Promptly provide the Union with all documents
and information requested by it on May 31 and August
16, 1979, concerning the pension plan.
(c) Upon request, to the extent required by Section
8(d) of the Act, bargain collectively with the Union as
the representative of its employees in the above unit con-
cerning contemplated changes in the terms or conditions
of employment of those employees, and, if an under-
standing is reached, embody it in a signed document.
(d) Offer to Katherine Tate immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent job, without prejudice
to her seniority or other rights and privileges, discharg-
ing a replacement if necessary, and make her whole for
any loss of earnings or benefits suffered by reason of her
unlawful suspension and discharge in July 1979, with in-
terest on the lost earnings. 2 4
(e) Expunge from its files and other records all copies
of or references to the reprimand, dated July 5, 1979,
issued to Kathleen Gunton, and inform her in writing
that this has been done.
(f) Preserve and, upon request, make available, to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all records nec-
essary to analyze the amount of backpay and benefits
owing under the terms of this Order.
(g) Post at its facilities in Littleton, Castle Rock, Coni-
fer, Strasburg, and Woodland Park, Colorado, copies of
the attached notice marked "Appendix." 2 5 Copies of said
notice, on forms provided by the Regional Director for
Region 27, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive 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, covered, or de-
faced by any other material.
(h) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
ed. This is rejected for the reason, earlier noted, that Respondent did not
enter into a final and binding agreement to assume the participants' share
of the contributions. To fashion a remedial scheme on the premise that it
did would conflict with the Spreme Court's admonition that "the Bard
may not, either directly or indirectly, compel concessions or otherwise sit
in judgment upon the substantive terms of collective bargaining agree-
ments" NL.R.B v. American ational Insurance Co., 343 U.S 395, 404
(1952). See also IK Porter Co.. Inc.. Disston Dvision-Danville Works
.VL.RB., 397 U.S. 99, 102 (1970)
24 Backpay is to he computed in accordance with F. W' W*,lsirh
Company, 90 NLRB 289 (1950), with interest to be computed as set forth
in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, sis
Plumbing Heating Co., 138 NLRB 716 (1962).
2s In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
1167