Monongahela Power Co.

National Labor Relations Board - Board Decisions

Jun 24, 1994

314 N.L.R.B. 65 (N.L.R.B. 1994)

65
314 NLRB No. 18
MONONGAHELA POWER CO.
* The judge issued an erratum to the decision on April 16, 1993.
The error noted in the erratum has been corrected herein.
1 We affirm the judge’s denial of the Respondent’s motions to dis-
miss the complaint in Case 6–CA–24515 or, alternatively, to sever
that case from Case 6–CA–24460. In so doing, we find that the
issues involved in these cases are inextricably interrelated and, there-
fore, that deferral of Case 6–CA–24515 is inappropriate. See, e.g.,
American Commercial Lines, 291 NLRB 1066, 1069 (1988).
2 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.
We correct the following errors by the judge which do not affect
our decision. The judge incorrectly stated that the Respondent’s
deadline for Bolyard’s move was March 29. The actual deadline was
May 29. The judge therefore erred by stating that ‘‘Respondent pro-
vides no plausible explanation of why it immediately terminated
Bolyard on March 26 rather than waiting 3 days to March 29 to see
if Bolyard actually would comply with its deadline.’’ However, this
error does not affect the result. The salient point is that the Respond-
ent discharged Bolyard on March 26, 3 days after it had extended
Bolyard’s probationary period and had given Bolyard until May 29
to move. Significantly, Bolyard told the Respondent on March 25
that he would comply with the May 29 deadline.
3 In adopting the judge’s conclusion that the Respondent’s removal
of the Union’s newsletters from a bulletin board violated Sec.
8(a)(1), we find it unnecessary to rely on his characterizations of the
action as ‘‘censorship’’ and an ‘‘infringement of the [Union’s] free
speech rights.’’
4 We shall modify the reinstatement provision of the judge’s rec-
ommended Order to conform to the language customarily used by
the Board.
Monongahela Power Company and Jay L. Bolyard.
Cases 6–CA–24460 and 6–CA–24515
June 24, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On April 5, 1993, Administrative Law Judge Rich-
ard H. Beddow Jr. issued the attached decision. The
Respondent filed exceptions, a supporting brief, and a
reply brief. The General Counsel filed an answering
brief.
On October 25, 1993, the National Labor Relations
Board (in an unpublished decision) remanded the pro-
ceeding to the judge for certain further findings of fact,
credibility resolutions, conclusions of law, and rec-
ommendations concerning the Respondent’s defenses
to the allegation that it acted unlawfully when it dis-
charged the Charging Party.
The judge issued the attached supplemental decision
on January 12, 1994. Subsequently, the Respondent
filed exceptions to the judge’s supplemental decision
and a supporting brief, and the General Counsel filed
limited exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the judge’s decision, erra-
tum, and supplemental decision and the record in light
of the exceptions and briefs and has decided to affirm
the judge’s rulings,1 findings,2 and conclusions3 and to
adopt the recommended Order as set forth in his sup-
plemental decision, as modified.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Monongahela Power Com-
pany, Morgantown, West Virginia, its officers, agents,
successors, and assigns, shall take the action set forth
in the supplemental Order, as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Offer Jay L. Bolyard 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 other rights and privileges pre-
viously enjoyed, and make him whole for the losses he
incurred as a result of the discrimination against him
in the manner specified in the ‘Remedy’ section.’’
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 interfere with, restrain, coerce, or oth-
erwise discriminate against you by discharging you for
engaging in union activities or other protected con-
certed activity.
WE WILL NOT interfere with, restrain, or coerce you
in the exercise of your rights guaranteed by Section 7
of the Act by removing union newsletters from union
bulletin boards at the facilities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise your rights
guaranteed by Section 7 of the Act.
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All following dates will be in 1992 unless otherwise indicated.
WE WILL offer Jay L. Boyland immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights and privi-
leges he previously enjoyed, and WE WILL make him
whole for the losses he incurred as a result of the dis-
crimination against him and expunge from our files
any reference to his discharge and notify him the un-
lawful discharge will not be used as a basis for future
personnel actions against him.
WE WILL, if requested by the Union, allow the re-
posting of the union newsletters previously removed.
MONONGAHELA POWER COMPANY
David L. Shepley, Esq., for the General Counsel.
John C. Unkovic, Esq., of Pittsburgh, Pennsylvania, and Ed-
ward Kennedy, Esq., of Fairmont, West Virginia, for the
Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Fairmont, West Virginia, on October 26
and 27, 1992. Subsequently, briefs were filed by the General
Counsel and Respondent. These proceedings are based on
charges filed April 8 and 30, 1992,1 by International Brother-
hood of Electrical Workers, Local 2357, AFL–CIO. The Re-
gional Director’s consolidated complaint dated September 23,
1992, alleges that Respondent Monongahela Power Company
violated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act by discharging employee Jay L. Bolyard because
he concertedly protested Respondent’s request that he relo-
cate his family within a 30-minute drive of Respondent’s fa-
cility and because he assisted the Union and engaged in con-
certed activities. It also is alleged that Respondent violated
the Act by removing reasonable and proper union newsletters
from the union bulletin board at Respondent’s Morgantown,
West Virginia facility.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation engaged as a public utility for
the provision of electrical power and it has a facility at Mor-
gantown, West Virginia.
It annually derives gross revenues in excess of $250,000
and purchases and receives goods and materials valued in ex-
cess of $50,000 directly from points outside West Virginia.
It admits that at all times material it has been an employer
engaged in operations affecting commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act. It also admits
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Jay L. Bolyard began with the Respondent as an appren-
tice electrician at its Morgantown facility. He was a proba-
tionary employee for the first 6 months of his employment
in accordance with article VIII, section 2, of the collective-
bargaining agreement between the Respondent and the
Union.
Bolyard had at least two preemployment interviews with
Foreman Richard Sausen and Supervisor John Shawhan and
specifically was told that he had to relocate from his resi-
dence in Rowlesburg, West Virginia (a 1-hour drive), to
somewhere within a 30-minute driving range of the Morgan-
town facility (Respondent’s so called 30-minute rule). Relo-
cation was to occur prior to Bolyard being converted from
a probationary employee to a regular employee. Neither
Sausen nor Shawhan made any mention at these interviews
of Bolyard’s family or how the 30-minute rule might apply
to his family (a wife and a school aged daughter).
Between September 23 and early March 1992, Bolyard
had three brief discussions with members of management in
which his residence situation was mentioned; one when
Sausen asked Bolyard 1 week after he began if he had found
a place to live. Bolyard replied that he had not. In December
1991, Bolyard voluntarily stated to Shawhan that he was
having a problem finding a new residence. Shawhan replied
that Bolyard should not worry about it, but instead con-
centrate on his getting a commercial driver’s license (another
job requirement which was met in February).
Bolyard made an effort to find a residence in compliance
with the 30-minute rule in late 1991 and early 1992. Around
March 1, 1992, he located a trailer in Gladesville, West Vir-
ginia, in which he planned to live while his family continued
to reside in Rowlesburg until his daughter’s school year was
completed in June. Bolyard’s family was not mentioned by
anyone in management in conjunction with the 30-minute
rule prior to March 13. Bolyard told Sausen about the trailer
and Sausen checked it out with respect to compliance and in-
formed Bolyard that it was acceptable.
On March 17, 1992, Sausen called Bolyard to his office
and said he was going to forward the paperwork to make
Bolyard a regular employee at the end of the probationary
period and on Bolyard’s move into the trailer in Gladesville.
Sausen said Bolyard was one of the best apprentice elec-
tricians he had seen, was getting along with his peers, and
had received excellent reports.
Bolyard told Sausen he would move into the trailer, but
would defer moving his family within the 30-minute rule
area until after his daughter completed a gifted student pro-
gram she was attending in the Rowlesburg schools. Sausen
said he had no objection to Bolyard’s plans, but he would
consult with Shawhan. A few minutes later, Shawhan came
into the office and said that the arrangement with the trailer
was unacceptable and explained that he believed that Bolyard
would not be available on weekends due to his anticipated
going home to be with his family. Shawhan told Bolyard he
might be placed on a trial period status.
Immediately after leaving Sausen’s ofice Bolyard spoke
with Union Steward Timothy Hairston in a large open area
adjacent to Sausen’s office about his conversation with
Shawhan. Bolyard and Hairston went to Hairston’s nearby
locker and Hairston got a copy of the contract. Bolyard and
67MONONGAHELA POWER CO.
Hairston then reviewed article V, section 6, the section of the
contract dealing with the 30-minute rule.
In the days between March 16 and 26, Bolyard spoke to
Hairston in the meter shop for several minutes prior to each
workday and updated Hairston on his ongoing efforts to find
a new residence and discussed what members of management
were saying and what his rights under the contract were with
respect to the 30-minute rule. On a number of occasions over
this 11-day period, Sausen acknowledged his awareness of
Bolyard while he was speaking with Hairston (Sausen’s of-
fice was about 6 feet from the meter shop area where
Bolyard and Hairston spoke).
On March 20, Shawhan told Bolyard he would be put on
a trial period (under art. VIII, sec. 2, of the contract).
Bolyard then told Shawhan that he felt discriminated against
due to his marital status when Shawhan reasserted that
Bolyard’s family had to move. Bolyard also said he believed
that a problem would not exist if the facility was nonunion.
Shawhan responded by stating that he did not have a prob-
lem with the Union, he had a ‘‘problem with one man in the
Union.’’ When Bolyard asked why he was being placed on
a trial period, Shawhan stated that it was until Bolyard suc-
ceeded in moving his family. Bolyard argued possible dif-
ferent situations and Shawhan then stated that he believed
Bolyard was not sure if he wanted to continue his employ-
ment, and that he should think about it but Bolyard said he
he had to keep this job.
Shortly after Bolyard spoke with Shawhan, Sausen called
Bolyard into his office and said he would like to help
Bolyard and did not want to lose him. Shawhan then briefly
came into the office and stated to Bolyard that he did not
care whether he quit, and he was not changing his mind
about the requirement that Bolyard’s family must move.
When Bolyard left, he immediately went to the nearby meter
shop and spoke to Hairston about his options.
During this period of time Bolyard updated Sausen about
his efforts to find a new residence and sometimes told
Shawhan of his efforts but he also argued about how the 30-
minute rule in the contract referred to only the ‘‘employee.’’
On the afternoon of March 23, the day the probationary
period ended, Sausen told Bolyard that he would be receiv-
ing a letter from Division Manager Robert Cockrell directing
him to have his family moved by May 29, or he would be
discharged. When Bolyard asked who set the date and
whether it could be extended until the end of his daughter’s
school year, Sausen said he did not know and that Bolyard
could speak to Cockrell if he wished.
Later that day, Bolyard went to Cockrell’s office and ex-
plained his efforts to find a new residence. Cockrell said he
appreciated Bolyard’s efforts, but he nonetheless faced a
May 29 deadline to move the family. Bolyard argued his in-
terpretation of the 30-minute rule, urging that it applied only
to the employee and not the employee’s family. Cockrell
stated that the Company had done a poor job of commu-
nicating its position regarding that matter but Bolyard pur-
sued his argument and cited hypothetical situations including
his getting a divorce or the family members refusing to
move. Cockrell responded by saying that those situations
made no difference to the requirement that the family move.
Bolyard asked Cockrell who set the May 29 deadline and he
replied that it was set by Respondent’s vice president, Thom-
as Barlow, and that the matter was out of his hands.
On March 24, Bolyard found a suitable apartment in
Masontown, West Virginia. The landlord verbally accepted
Bolyard’s offer to rent the apartment but refused the offer of
a deposit and 1 month’s rent, promising that the place would
be available to Bolyard’s in about 3 weeks.
On Wednesday, March 25, Bolyard went to Sausen, and
detailed his plans including his wife transporting his daughter
from the new residence in Masontown to the Rowlesburg
school until the school year ended. Sausen stated that he had
no problem with the arrangement but that Bolyard should in-
form Shawhan. Shawhan was not in his office so Bolyard
went to Cockrell’s office where he explained the situation.
Cockrell said Bolyard first said he was sorry for how he had
acted on Monday but that things were okay now and he had
things all worked out, then later in response to Cockrell’s
question about a Masontown apartment, he said that he
would move in by May 29 and that the family would join
him (before the end of the trial period on June 23). Bolyard
understood that Cockrell had no problem with the arrange-
ment and that he wanted Bolyard to report the development
to Shawhan.
Cockrell testified that he thought of his decision the
evening of the March 24 but made it on Wednesday, March
25, because:
We had an employee who had not kept a basic
agreement. He hadn’t kept his word to us on moving.
He was, he came up with a statement that he didn’t
know he had to move his family.
I didn’t believe that. I believe, I believe that perhaps
the word family wasn’t said, but I believe he knew the
family had to move. I believe that he told me that he
wanted to work some place else. He didn’t want to
work in my Division. He wanted to work in our Power
Station.
On Thursday afternoon, March 26, Bolyard was called to
Sausen’s office. Shawhan was present when Sausen told
Bolyard that the Company was not going to extend his trial
period. Bolyard asked why and Shawhan said he did not
have to tell Bolyard why and he would not. Bolyard went
through a standard exit interview and was then escorted by
Sausen and Shawhan to his locker and out of the building.
Bolyard’s ‘‘Separation Notice’’ for the State Department
of Employment Security carries an ‘‘effective date of 3–22’’
a date of last employment of March 26 and is dated April
3, 1992.
On March 27, 1992, Sausen held a regular morning meet-
ing with Bolyard’s former unit. He then asked the metermen
to leave while he spoke with the electricians. The metermen,
including Steward Hairston, left and Sausen gave an expla-
nation for Bolyard’s firing. He initially stated that Bolyard
was not going to work out but when Mike Reneman asked
why Bolyard was fired, Sausen replied that it was not his de-
cision or something that he desired. He then said that
Bolyard was working out very well, doing his job, learning
his duties, and fitting in well with the work force, but there
were circumstances involving the decision to fire Bolyard
which he could not discuss and that Bolyard was having
problems relocating and it was causing problems with his
family. He also said Shawhan had said Bolyard had ex-
pressed interest in advancing within the Company and
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Shawhan felt, because of that interest, Bolyard would be un-
happy as a substation electrician. Reneman interjected that
Bolyard’s alleged interest in advancement should be consid-
ered a plus. Sausen agreed with Reneman, and concluded
that relocation was causing problems with Jay and his fam-
ily.
Hairston filed a grievance on behalf of Bolyard regarding
the discharge, but it was rejected by the Company as im-
proper because of Bolyard’s status as a trial employee.
On April 28, Respondent’s counsel sent a letter to Region
6 of the National Labor Relations Board stating that it was
‘‘a statement of position,’’ the letter discussed the 30-minute
rule and offered Respondent’s version of certain conversa-
tions Bolyard had with Shawhan and Cockrell. Counsel stat-
ed the following:
Because the Charging Party had been told explicitly
prior to the time of his hire what Monongahela ex-
pected of him, because he did not adhere to that re-
quirement, and because in March he continued to be
evasive as to when and if he was going to comply with
the 30-minute rule, Cockrell decided that it would not
be in Monongahela’s best interest to contine to spar
over the issue. Monongahela believes that the 30-
minute rule is necessary for its service to customers,
and that it should not permit that rule to be eroded.
Monongahela did not want to begin any employment
relationship with a dispute over this issue. Therefore, as
was its rights under the collective-bargaining agree-
ment, Monongahela terminated the Charging Party’s
employment before the end of his trial period because
it simply did not wish to engage in continuing debate
with him on this rule or police his compliance with it.
On April 13, Douglas Byard, acting chairman for the
Union at the time, posted a union newsletter (the first news-
letter ever prepared by the Union), on the bulletin board at
the Morgantown facility. At 8 a.m. that day, Shawhan re-
moved the newsletter and then told Byard he had removed
the newsletter and that the newsletter did not comport with
article XI, section 2, of the contract, and would not be al-
lowed to remain posted. Byard aked Shawhan what was the
problem with the newsletter. Shawhan said he would not
allow postings that included organizational information (a
portion of the newsletter) and also objected to alleged half-
truths and false statements. No grievance was filed but a
charge in Case 6–CA–24515 was filed on April 30.
A second newsletter, posted on Friday, May 22, was re-
moved on Monday, May 26, by Shawhan under similar cir-
cumstances.
In late May or early June, Shawhan asked Byard to
Cockrell’s office and went through the two newsletters citing
sections and statements to which they objected, specifically
objected to the mention of AFL–CIO endorsements. Another
discussion on this matter occurred in July 1992, and
Shawhan and Cockrell objected to mention of political can-
didates, Cockrell also stated he would not allow anything on
the bulletin board to ‘‘defame or make the company look bad
in any way’’ or ‘‘anything contrary to the image of the com-
pany.’’ Cockrell also objected to misinformation, lies, half-
truths, and to the expression of opinion by the Union in the
newsletters.
On August 24, a third union newsletter was posted on the
bulletin board by Union Chairman Donald Ayersman. He
was paged in the field office and told to report to Cockrell’s
office. When Cockrell said he had removed the third union
newsletter, Ayersman asked what parts he questioned, and
Cockrell stated he objected to the statement that two arbitra-
tion cases looked favorable to the Union’s position because
that was the opinion on the part of the Union but that the
reason he removed the newsletter from the bulletin board
was because of the opinions stated in the newsletter that the
Respondent’s health insurance coverage was ‘‘minimal’’ and
he also objected to statements in the newsletter that alleged
misleading statement’s made by management.
Subsequently, Ayersman handbilled the newsletter that had
been posted on August 24 to unit members without any ob-
jection by management.
Article XI, section 2, of the contracts since 1973 states:
The Company will provide bulletin board space at all
reporting headquarters for the Union to post reasonable
and proper notices covering legitimate Union business.
Any other posting must be approved by the Manager,
Morgantown Division or his designated repesentative
before being posted.
A common thread in each of the three newsletters is a ref-
erence, in some respect, to the ‘‘dismissal or firing of a
worker [Bolyard] at Morgantown.’’
III. DISCUSSION
At the hearing, Respondent moved to dismiss the com-
plaint in Case 6–CA– 24515, and, in the alternative, made
a motion to sever. I deferred ruling on the motions, stating
my preference to develop a complete record.
As noted immediately above, each of the newsletters re-
moved by management contained a direct reference to the
‘‘dismissal’’ or ‘‘firing’’ that is the subject of the lead case
as well as a reference to bringing the matter before the
Board, and each was removed by either Shawhan or
Cockrell, both of whom played critical roles in Bolyard’s ter-
mination. The first two removals occurred within a few
weeks of Bolyard’s firing and I conclude that it is unques-
tionably clear that the two matters are closely related and ap-
propriate for consolidation and hearing on the same record.
Otherwise, there is no element of unfairness or prejudice
to the Respondent and it is clear that consolidation under
these conditions is a sound administrative practice that is
fully consistent with the provisions of the Administrative
Procedures Act and the Board’s Rules and practices.
Accordingly, Respondent’s motions are denied.
Respondent’s action regarding the newsletters can be de-
scribed most concisely with the word ‘‘censorship.’’ The
specific language of contract provides for: ‘‘The Union to
post reasonable and proper notices covering legitimate Union
business.’’
In order for that phrase to have any meaning, it is clear
that the Union negotiated the right to have the means to
openly communicate what it regarded as union business to its
members on a bulletin board at the facility. Accordingly, the
fact that Respondent thereafter ‘‘allowed’’ handbilling of the
information in the last newsletter is of no significance.
69MONONGAHELA POWER CO.
As noted by the General Counsel, a union newsletter, by
its very nature, is to communicate to members about the sta-
tus of collective bargaining, grievances, terms and conditions
of employment, the election of union officers, and other mat-
ters which undeniably have an immediate effect on its mem-
bers, but also as to many other developments and issues
which interest members and ultimately may affect their well-
being and this is inherently legitimate union business.
Here, the newsletter contains material that may be consid-
ered to be biased, prounion opinion but that is hardly sur-
prising and it cannot be the basis for an infringement of free
speech rights of the Union. Clearly, the material in the news-
letters does not approach any reasonable concept of
defamitory, profane, outrageous, or inflamatory language by
any objective standard and this leaves Respondent’s only
basis for its actions the rationale that it can censor the
Union’s free speech because it doesn’t share the same opin-
ion or perception of the events described.
The possibility that some statements may have been factu-
ally inaccurate (for example, because of a lack of full knowl-
edge on the part of the Union) does not justify the removal,
without consultation, of the entire newsletter. Here, the Em-
ployer’s overall conduct in relation to Bolyard’s discharge, as
discussed below, and the timing of its actions, support an in-
ference and the conclusion that Respondent’s explanations
for its actions in initially removing the newsletters are
pretextual and that a major reason for its actions was the
newsletters’ contents relative to the matter of Bolyard’s dis-
charge.
The Respondent’s attempt to immediately stifle any
disemination of information about Bolyard’s discharge, as
well as other legitimate union business, in a union newsletter
placed on a bulletin board, conveys a chilling and coercive
affect on employee rights under Section 7 of the Act, and
I conclude that the General Counsel has persuasively shown
that Respondent violated Section 8(a)(1) of the Act in each
of the three instances, as alleged.
Concerted or Union Activity as a Motivating Factor
In a discharge case of this nature, applicable law requires
that the General Counsel meet an initial burden of presenting
sufficient evidence to support an inference that the employ-
ee’s union or other protected concerted activities were a mo-
tivating factor in the employer’s decision to terminate him.
Here, the record shows that Respondent’s management was
well aware that Bolyard was arguing his contention that the
employer’s 30-minute rule under the collective-bargaining
agreement applied only to him and not to his family and that
he had not understood the broader interpretation when he
first attempted to comply with the rule, prior to the end of
his probation period on March 23. This is a term and condi-
tion of employment. Although it appears that much of his
protest was directed at his personal situation, he consulted
with and received affirmative encouragement from Union
Steward Hairston, and I find that it had ‘‘some relation’’ to
the collective-bargaining agreement and ‘‘to group action in
the interest of employees’’ and therefore was protected con-
certed activity, see Circle K Corp., 305 NLRB 932 (1991).
It is clear that Bolyard’s activity in speaking to manage-
ment about, in effect, the meaning and application of the rule
(most specifically whether it applied not only to him but also
his to family) was an issue related to terms of the collective-
bargaining agreement and conditions of employment. He
spoke with fellow employee Hairston about interpretation of
the contract. Bolyard’s conversations with Hairston and then
with management, on the same subject of contract interpreta-
tion, clearly had some relation to group action in the interest
of the employees. Bolyard’s principal objective may have re-
lated to his own immediate situation; however, he solicited
group action with Hairston and Hairston, in fact, responded
in a supportive manner. Accordingly, I find that Bolyard’s
action was ‘‘concerted’’ activity and that the General Coun-
sel has established a prima facie case that this activity was
a motivating factor in Bolyard’s discharge.
Moreover, I am persuaded that management (including
Shawhan) observed Bolyard in frequent conversations with
Union Steward Hairston and that on March 13 Shawhan had
become upset with the perceived manner in which Hairston
had presented a grievance on behalf of the Union. I find that
this supports an inference that Shawhan connected the two
observations and suspected that Bolyard and Hairston would
interject the Union into Bolyard’s residential situation.
In conclusion, I find that the General Counsel clearly has
met the threshold requirements for a showing of both con-
certed action, see the Circle K case, supra, and has also
shown persuasive evidence that linking probable management
observation of Bolyard’s interaction with Union Steward
Hairston at a time, when management, in the person of
Shawhan, had become uncharacteristically upset about Hair-
ston’s pursuit of a particular ‘‘safety’’ related grievance.
Under these circumstances, the record also supports an infer-
ence that management’s antiunion animus directed at Hair-
ston was carried over to Bolyard because of his observed as-
sociations with Hairston during this same general time period
and also was a motivating factor in its sudden decision to
terminate Bolyard only 3 days into a newly authorized 60-
day ‘‘trial period,’’ that had replaced Bolyard’s expiring pro-
bationary period.
Accordingly, the testimony will be discussed and the
record evaluated in keeping with the criteria set forth in
Wright Line, 251 NLRB 1083 (1980), see NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983), to consider
Respondent’s defense and, in the light thereof, whether the
General Counsel has carried his overall burden.
Respondent’s principal defense is based on its contention
that it had a right to discharge, at its sole discretion, during
an employee’s probationary or trial period and that it other-
wise discharged Bolyard for a legitimate reason because
Bolyard was dissatisfied with the job and had failed to com-
mit to a timely move of his family that would allow him to
comply with the 30-minute rule.
At the hearing Bolyard’s displayed certain demeanor or
mannerisms that, with repetition, could be seen to be suscep-
tible of becoming annoying. It appears that Bolyard, although
a skilled and adoptable worker, suffered untimely losses of
employment in layoffs in the railroad and other industries,
and could be considered to have been insecure in his proba-
tionary employment with the Respondent. He apparently dis-
played this insecurity in his mannerisms and conversations
with both supervisors and other employees. From manage-
ment’s viewpoint, what was first polite and cooperative, with
repetiton suddenly became obsequious and annoying. Man-
agement, in the person of Shawhan, Cockrell, and Vice
President Barlow, became annoyed that Bolyard was
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Significantly, as argued by the General Counsel, the two deci-
sions involve factual situations different from these in the instant
case. The ‘‘Toothman’’ decision establishes the Company’s right to
enforce the 30-minute rule over the objections of the employee. The
‘‘Pearcy’’ decision involves an employee who moved himself and his
family outside the 30-minute area with a sham address within the
30-minute area, but who continued to live with his family outside
the area. In the awards section of the decision, the abritrator states,
‘‘Unless the grievant . . . moves into a home [within a 30-minute
drive] he is to be deemed in violation [of the contract]. If he does
so change his residence.’’ (Emphasis added.) The decision in no way
addressed whether Pearcy’s family had to move also.
3 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
‘‘quibling’’ on the specifics of how he would comply with
Respondent’s 30-minute rule, and decided that he was ‘‘act-
ing in bad faith.’’ Although Respondent had just extended
Bolyard’s probation to a trial period, it suddenly decided it
didn’t want to ‘‘spar’’ over the issue of how Bolyard com-
plied with the 30-minute rule and decided to discharge him
only 3 days into a 60-day extension.
Here, I find that Bolyard would not have been discharged
so suddenly if he had not engaged in either the concerted ac-
tion in continuing his argument about the meaning of the
contractual 30-minute rule or in his union activity in con-
sulting openly with the union steward about the same matter.
His discharge was not because of his failure to comply
with the 30-minute rule but because of his protected con-
certed and union activity in arguing about it. This conclusion
is especially apparent in view of the Respondent’s incon-
sistent and pretextual conduct and reasons which accom-
panied the sequence of events. Thus, I do not credit
Shawhan’s testimony that Bolyard never told him on March
25, that he had found a new apartment that met the require-
ments, as it is inconsistent with Bolyard’s credible testimony
that he told both Shawhan and Sausen as well as Cockrell,
who admits that he was told. Sausen, although still a super-
visor for Respondent, was not called as a witness and I infer
that his truthful testimony would have essentially corrobo-
rated Bolyard’s recollections (and also would have affirmed
that he had observed Bolyard’s consultations with Hairston),
see Redwood Empire, Inc., 296 NLRB 369 (1989).
As stated in North Vernon Forge, 278 NLRB 708 (1986):
The Board has consistently held that attempts by an
individual to enforce the provisions of an existing col-
lective-bargaining agreement are protected concerted
activity under the Act, as long as the employee’s
intepretation of the agreement has reasonable basis.
E.g., Regency Electronics, 276 NLRB 4 (1985);
Interboro Contractors, 157 NLRB 1295 (1966), enfd.
388 F.2d 495 (2d Cir. 1967). Here, the ambiguous lan-
guage of the collective-bargaining agreement made it
reasonable for Roberts to believe that he had bumping
rights. His efforts to enforce those rights by com-
plaining to the Union and his supervisor are therefore
protected. [Id. at 710–711.]
Both North Vernon Forge and the instant case deal with
a probationary employee seeking to assert his rights under an
ambiguous provision of the collective-bargaining agreement.
Here, Bolyard’s interpretation is reasonable and it is irrele-
vant whether Bolyard’s interpetation of the contract was
‘‘correct.’’
The Respondent makes much of the fact that it allegedly
acting on the basis of two arbitration decisions on the same
work rule. Shawhan’s testimony fails to indicate in an unam-
biguous manner that he discussed these decisions or the de-
tails of these decisions with Bolyard and Bolyard credibly
testified that neither Shawhan or Cockrell mentioned them.
Clearly, Bolyard was never shown the decisions.2
If the Respondent was relying on these prior decisions, it
failed to bring them to Bolyard’s attention or to explain them
to him and thus provoked Bolyard’s questioning of why he
had to immediately move his family (especially in view of
the fast approaching end of his daughter’s school year).
Bolyard had a reasonable basis to question his rights under
an ambiguous (i.e., applicability to employee or to employee
and family) contract provision. Under these circumstances, I
conclude that the General Counsel has shown that he was
terminated for asserting the right to argue his position and
that the Respondent thereby violated Section 8(a)(1) and (3)
of the Act in this respect, as alleged, see North Vernon
Forge, supra.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Jay L. Bolyard on March 26, the Re-
spondent engaged in an unfair labor practice within the
meaning of Section 8(a)(1) and (3) of the Act.
4. By removing union newsletters from the union bulletin
board at its Morgantown, West Virginia facility, Respondent
violated Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to cease
and desist and to take certain affimative action designed to
effectuate the policies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to offer Jay L.
Bolyard immediate and full reinstatement to his former job
or, if that job no longer exists, to a substantially equivalent
positions, dismissing, if necessary, any temporary employees
or employees hired subsequently, without prejudice to his se-
niority or other rights and privileges previously enjoyed, and
make him whole for any loss of earnings he may have suf-
fered because of the discrimination practiced against him by
payment to him of a sum of money equal to that which he
normally would have earned from the date of the discrimina-
tion to the date of reinstatement in accordance with the meth-
od set forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).3
The Respondent also shall be ordered to remove from its
files any reference to the illegal temination and notify him
in writing that this has been done and that evidence of the
unlawful termination will not be used as a basis for future
personnel action against him. Respondent also shall, at the
71MONONGAHELA POWER CO.
request of the Union, permit the reposting of the union news-
letter that was involved.
Otherwise, it is not considered necessary to issue a broad
Order.
David L. Shepley, Esq., for the General Counsel.
John C. Unkovic, Esq., of Pittsburgh, Pennsylvania, and Ed-
ward Kennedy, Esq., of Fairmont, West Virginia, for the
Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. A
decision in this proceeding was issued on April 5, 1993. On
October 25, 1993, the Board remanded the proceeding to me
for additional findings of fact regarding certain asserted in-
consistent testimony.
Jay Bolyard was a 6-month probationary electrician at the
Respondent’s Morgantown, West Virginia facility. On March
19, 1992, his supervisor, John Shawhan, recommended to Di-
vision Manager Robert Cockrell that Bolyard be discharged
(because, as discussed in the prior decision, Bolyard had not
moved his family to within 30 minutes’ driving range from
Morgantown) before his probationary period ended March
23.
On March 23, Cockrell told Shawhan (who told Bolyard)
that he had received permission to extend the probationary
period to June 22, but established that he must move his
family by March 29.
As discussed in the prior decision, it is an unrebutted fact
of record that on March 25, just prior to seeing Cockrell,
Bolyard told Foreman Sausen that he had found a suitable
apartment within the 30-minute rule area and that his family
would move in with him by management’s May 29, 1993
deadline, with his wife transporting his daughter from their
new residence to school in Rowlesburg until the end of the
school year. Sausen agreed with the solution but ‘‘kicked-
up’’ approval to a higher level of management. I find it high-
ly unlikely that Bolyard would then tell Cockrell a different
version of what he told Sausen (and omit the timely move
of his family), an account that would perpetuate the situation
that existed on March 17 when Supervisor Shawhan said a
similar arrangement (without the family) was unacceptable.
Accordingly, I credit Bolyard’s testimony that he told
Cockrell the same thing he told Sausen and I find that
Cockrell failed to listen to Bolyard because he did not wish
to ‘‘spar’’ with or to continue any ‘‘debate’’ with Bolyard
and he then ‘‘tuned out’’ Bolyard’s additional comment’s be-
cause he admittedly had already made a preliminary decision
on the evening of March 24 to terminate Bolyard. I find
Cockrell was annoyed by Bolyard’s continued debating with
management and, under these circumstances, I do not credit
Cockrell’s version of the conversation.
Cockrell testified that in a conversation with Bolyard on
March 23 there was discussion between them about him
wanting to move to a power plant. Prior to that time he had
heard nothing about this subject, except that the previous
week, Shawhan had mentioned to him something about
Bolyard ‘‘wishing to work someplace else and I really didn’t
focus on that and I cannot recall the specific language of
those conversations.’’
Bolyard testified that he previously had bid on a meter
reader job because he was not sure he would pass the CDL
license test required for the electrician’s position and that he
had also had conversations with Shawhan (some in January
or February) about the possibility of a power station job and
about his long-term advancement with the Company in other
areas including power stations and the general offices. I cred-
it the unrebutted statement attributed to Foreman Sausen that
after Bolyard was fired Sausen told the electricians that one
of the reasons was because Shawhan felt Bolyard would be
unhappy as a substation electrician because of his expressed
interest in advancing within the Company, a reason that other
employees said should be in Bolyard’s favor.
Discussion
I find that the above amplification of my Findings of Fact
do not require any change in my previous conclusions and
I find that Bolyard would not have been discharged so sud-
denly if he had not engaged in either the concerted action
in continuing his argument about the meaning of the contrac-
tual 30-minute rule or in his union activity in consulting
openly with the union steward about the same matter.
His discharge was not because of his failure to comply
with the 30-minute rule but because of his protected con-
certed and union activity in arguing about it. This conclusion
is especially apparent in view of the Respondent’s incon-
sistent and pretextual conduct and reasons which accom-
panied the sequence of events. Thus, I do not credit
Cockrell’s testimony that Bolyard never told him on March
25 that he had found a new apartment that met the require-
ments and would move his family, as it is inconsistent with
Bolyard’s credible testimony that he told Sausen as well as
Cockrell.
I also find that Bolyard’s asserted interest in other jobs
and advancement with the Company were not reasonably
viewable as expressions of dissatisfaction with his elec-
tricians position and I find that Respondent’s assertation of
this alleged dissatisfaction as a valid reason for termination
is pretextual, especially in view of the fact that Cockrell
takes full responsibility for the decision while at the same
time testifying that he ‘‘really didn’t focus on that and I can-
not recall’’ what Shawhan had said other than Bolyard’s
‘‘wishing to work someplace else.’’
In conclusion, I find that the Respondent has failed to
show a plausable reason for its actions in terminating
Bolyard only 3 days after it had extended his probation from
March 23 to June 22. This is especially true inasmuch as the
Respondent provides no plausible explaination of why it im-
mediately terminated Bolyard on March 26 rather than wait-
ing 3 days to March 29 to see if Bolyard actually would
comply with its deadline. The Respondent did not do so and,
accordingly, I find that Cockrell’s expressed reasons are false
and pretextual. For these reasons and those set forth in my
prior decision, I reaffirm my prior conclusion that the Gen-
eral Counsel has shown that Bolyard was terminated for as-
serting the right to argue his position and that the Respond-
ent thereby violated Section 8(a)(1) and (3) of the Act in this
respect, as alleged.
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Under New Horizons, interst is computed at the ‘‘short-term Fed-
eral rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
2 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.
3 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.’’
4 Following service of this supplemental decision on the parties,
the provisions of Sec. 102.46 of the Board’s Rules and Regulations
shall apply.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Jay L. Boylard on March 26, the Re-
spondent engaged in an unfair labor practice within the
meaning of Section 8(a)(1) and (3) of the Act.
4. By removing union newsletters from the union bulletin
board at its Morgantown, West Virginia facility, Respondent
violated Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to offer Jay L.
Bolyard immediate and full reinstatement to his former job
or, if that job no longer exists, to a substantially equivalent
position, dismissing, if necessary, any temporary employee or
employee hired subsequently, without prejudice to his senior-
ity or other rights and privileges previously enjoyed, and
make him whole for any loss of earnings he may have suf-
fered because of the discrimination practiced against him by
payment to him of a sum of money equal to that which he
normally would have earned from the date of the discrimina-
tion to the date of reinstatement in accordance with the meth-
od set forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987),1 and, on reinstatement, it shall
allow Bolyard a reasonable time to move in compliance with
its 30-minute rule.
The Respondent also shall be ordered to expunge from its
files any reference to the illegal termination and notify him
in writing that this has been done and that evidence of the
unlawful termination will not be used as a basis for future
personnel action against him. Respondent also shall, at the
request of the Union, permit the reposting of the union news-
letter that were involved.
Otherwise, it is not considered necessary to issue a broad
Order.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Monongahela Power Company, Morgan-
town, West Virginia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging any employee for activity protected by
Section 7 of the Act.
(b) Interfering with, restraining, or coercing its employees
in the exercise of rights guaranteed by Section 7 of the Act
by removing union newsletters from union bulletin boards at
the facilities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Jay L. Bolyard immediate and full reinstatement
and make him whole for the losses he incurred as a result
of the discrimination against him in the mannerspecified in
the remedy section of this decision.
(b) Remove from its files any reference to his discharge
and notify him of the unlawful discharge will not be used
as a basis for future personnel actions against him.
(c) Allow, if so requested by the Union, repost of the
union newsletters previously removed.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all records, re-
ports, and other documents necessary to analyze the amount
of backpay due under the terms of this decision.
(e) Post at its Morgantown, West Virginia facility copies
of the attached notice marked ‘‘Appendix.’’3 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 6, after being signed by an authorized representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or cover 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.4