Ohio Power Co.

National Labor Relations Board - Board Decisions

Dec 27, 1974

215 N.L.R.B. 862 (N.L.R.B. 1974)

862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ohio Power Company and Utility Workers of America
Local No. 468, AFL-CIO. Case 6-CA-7180
December 27, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On June 19, 1974, Administrative Law Judge Mor-
ton D. Friedman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, the General Counsel filed cross-
exceptions and an answering 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 briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found that Respond-
ent violated Section 8(a)(3) and (1) of the Act by refus-
ing to reinstate employee James E. Anthony at the end
of a strike. In doing so the Administrative Law Judge
found that there is insufficient evidence in the record
to meet Respondent's burden, under Rubin Bros. Foot-
wear, Inc., 99 NLRB 610 (1952), of going forward with
evidence to establish that Respondent had an honest
belief that Anthony engaged in misconduct during the
strike. We find merit in Respondent's exceptions to this
finding.
The facts are briefly as follows: A strike against Re-
spondent began at a number of its plants on June 22,
1973. The strike lasted until December 10 or 12, 1973.
Among the employees who were on strike was An-
thony. By letter dated October 3, 1973, Respondent
informed Anthony that he was discharged stating:
This will notify you that you are discharged be-
cause of your conduct on October 2, 1973, at the
Kammer Plant main entrance. Your actions
damaged company property and were a serious
threat to the well-being of other employees. This
type of conduct cannot be tolerated and, therefore,
your employment with the Ohio Power Company
is terminated effective Wednesday, October 3,
1973.
1 The Administrative Law Judge incorrectly attributes to union represen-
tatives a comment made by Respondent's representatives to the effect that
employees other than Anthony and Hercules would not be returning be-
cause they had been bumped off the labor gang because of replacements and
the further comment that Anthony and Hercules would be "left out com-
pletely" while the others would be placed on a preferential hiring list.
At the hearing the General Counsel proposed and
the Respondent accepted a stipulation that Respondent
discharged Anthony as set forth in the letter of dis-
charge for allegedly engaging in misconduct while he
was on the picket line engaged in strike activities. An-
thony did not testify. Respondent rested without pre-
senting any testimony or evidence.
In Rubin Bros the Board held that the honest belief
of an employer that striking employees have engaged in
misconduct provides an adequate defense to a charge of
discrimination in refusing to reinstate such employees
unless it affirmatively appears that such misconduct
did not in fact occur. Here General Counsel intro-
duced, by stipulation, the discharge letter of October 3,
1973, which stated that Anthony's actions on October
2, 1973, "damaged company property and were a seri-
ous threat to the well-being of other employees of the
Company." The Administrative Law Judge's finding
that the letter was a self-serving document overlooks
the fact that the letter was written the day after An-
thony's misconduct, and that no evidence was adduced
by the General Counsel to suggest that the discharge
was pretextual or based on anything other than what
was stated in the letter. Further the General Counsel
stipulated that Anthony was discharged "for allegedly
engaging in misconduct." Thus Respondent's honest
belief that Anthony had engaged in misconduct was a
matter of stipulation.
Since there is sufficient evident in the record to estab-
lish Respondent's honest belief that Anthony engaged
in misconduct it was the General Counsel's burden to
establish that Anthony did not engage in
misconduct.' The General Counsel did not present
any evidence to this effect. Accordingly, we find that
the General Counsel has failed to establish that Re-
spondent discharged Anthony unlawfully and shall dis-
miss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the complaint herein be, and
it hereby is, dismissed in its entirety.
2 The General Counsel asserts that the letter does not state what conduct
Anthony allegedly engaged in However, it is clear from the record that the
General Counsel was aware that Respondent was asserting that it dis-
charged Anthony for picket line misconduct The General Counsel did not
contend at the hearing that it had insufficient details as to that misconduct
to meet its burden of showing that Anthony did not engage in it Nor did
he take any steps at the hearing to obtain any further details as to the
misconduct Under these circumstances , General Counsel cannot now com-
plain that the evidence in the record is insufficient to enable him to meet
his burden.
215 NLRB No. 133
OHIO POWER COMPANY 863
DECISION
STATEMENT OF THE CASE
Morton D. Friedman, Administrative Law Judge: The
hearing in this case was held in Wheeling, West Virginia, on
May 16, 1974, upon a complaint issued on March 29, 1974,
which complaint was based upon a charge filed on January
2, 1974. The complaint allegations that Respondent dis-
charged an employee in violation of Section 8(a)(3) and (1)
of the Act were denied in the answer filed by the Respondent.
In substance, the complaint alleges that the Respondent
refused to reinstate the said employee because the latter par-
ticipated in a strike against the Respondent. The Respondent
defends on the ground that the said employee engaged in
unprotected activity during the strike.
At the hearing all parties were represented, given full op-
portunity to be heard and to present evidence. A brief was
filed by the Respondent.
Upon the entire record, and upon my observation of the
only witness presented, and upon consideration of the Re-
spondent's brief, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation, is a public utility
engaged in the manufacture, sale, and distribution of electri-
cal energy and maintains several power plants for the genera-
tion and transmission of such electrical power in the State of
Ohio and West Virginia. During the 12-month period im-
mediately preceding the issuance of the complaint herein, a
representative period, the Respondent had a gross annual
volume of business exceeding $250,000 and, during the same
period, received goods and services of a value in excess of
$50,000 from points directly outside the State of West Vir-
ginia for use at its West Virginia facility.
It is admitted, and I find, that the Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
nearly ended, he and other union officials met in a collective-
bargaining session with representatives of the Respondent.
During the course of this meeting, the Respondent's represen-
tatives told the union representatives that there had been
replacements hired for some of the strikers and that there
were also going to be additional individuals not coming back
to work. Parks then stated to the others at the meeting "You
mean there are other people that are going to be out on the
street besides Anthony and Hercules."' The union represen-
tatives answered "Yes, they're not coming back, nor are these
three men that have been bumped off the labor gang because
of replacements. These three people that were bumped off the
labor gang will be put on a preferential hiring list, whereas
the other two men will be left out completely."
The foregoing comprises the pertinent part of Parks' tes-
timony. In addition to the foregoing testimony, General
Counsel introduced, with no objection from counsel for the
Respondent, a letter of discharge dated October 3, 1973,
written by the plant manager of the Kammer plant, and
addressed to employee Anthony stating:
This will notify you that you are discharged because of
your conduct on October 2, 1973, at the Kammer Plant
main entrance Your actions damaged company prop-
erty and were a serious threat to the well-being of other
employees. This type of conduct cannot be tolerated and,
therefore, your employment with the Ohio Power Com-
pany is terminated effective Wednesday, October 3,
1973
In addition to the foregoing testimony and the foregoing
exhibit, the General Counsel proposed a stipulation, accepted
by Respondent's counsel, to the effect that the Respondent
discharged Anthony, as set forth in the letter of discharge,
above, for allegedly engaging in misconduct while he was on
the picket line engaged in strike activities.
The foregoing is the sum total of all the relevant evidence
introduced at the hearing. At the end of the introduction of
the foregoing evidence, the General Counsel rested. There-
after, without the introduction of any testimony or evidence
on Respondent's behalf, counsel for the Respondent also
rested.
II THE LABOR ORGANIZATION INVOLVED
It is admitted , and I find, that Utility Workers Union of
America, Local No. 468, AFL-CIO, the Charging Party
herein , is a labor organization within the meaning of Section
2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Evidence
Anthony M. Parks, a witness called by the General Coun-
sel and the only witness to testify at the hearing, testified that
he is the president of the Union and that a strike against the
Respondent began at a number of its plants on June 22, 1973,
and that the strike lasted until about December 10 or 12 of
that year. Among the employees who went out on strike at
the Respondent's Kammer plant at Moundsville, West Vir-
ginia, was James E. Anthony. Parks further testified that on
approximately December 10, 1973, when the strike was
B. The Contentions, Analysis, and Concluding Findings
Counsel for the General Counsel contends that the evi-
dence, cited above, establishes his prima facie case and that
pursuant to the evidentiary policy established in Rubin Bros.
Footwear, Inc., 99 NLRB 610, the burden of going forward
shifts to the Respondent to establish that it had an honest
belief that Anthony actually did engage in the impermissible
conduct for which the Respondent claims it lawfully dis-
charged him. On the other hand, the Respondent contends
that under the Rubin Bros. Footwear, Inc., doctrine, as in all
other cases, the burden of proving discrimination remains
with the General Counsel, that the foregoing evidence esta-
blishes the Respondent's honest belief that Anthony engaged
in the misconduct charged by the Respondent and that the
General Counsel failed to meet his burden of proof because
I Hercules was another employee discharged for alleged misconduct dur-
ing the strike
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he did not submit evidence that , in fact , Anthony had not
engaged in the conduct ascribed to him by the Respondent.
In Rubin Bros. Footwear, Inc., supra at 611, the Board held:
We are now of the opinion that the honest belief of an
employer that striking employees have engaged in mis-
conduct provides an adequate defense to a charge of
discrimination in refusing to reinstate such employees,
unless it affirmatively appears that such misconduct did
not in fact occur . We thus hold that once such an honest
belief is established , the General Counsel must go for-
ward with evidence to prove that the employees did not,
in fact , engage in such misconduct . The employer then,
of course , may rebut the General Counsel 's case with
evidence that the unlawful conduct actually did occur.
At all times the burden of proving discrimination is that
of the General Counsel . This modification of the Mid-
Continent rule does no more than recognize the true
nature of the General Counsel 's obligation to establish
all the essential elements of a charge that discrimination
has occurred when a striking employee is refused his job.
It merely places an [employer 's] honestly asserted belief
in its true setting by crediting it with primafacievalidity.
Thus it would appear that counsel for the General Counsel
and for the Respondent correctly set forth the theory of the
case at bar as prescribed by the Board in the above quotation.
However , the question remains as to the application of that
theory to the evidence presented in the record.
It has long been established that employees engaging in an
economic strike are entitled to reinstatement at the strike's
cessation unless they have been replaced.' Therefore, the
prima facie case of discrimination to be established by the
General Counsel is one which proves the strike ; that the
alleged discriminatee participated in the strike ; and that the
Respondent has refused to reinstate him at the end of the
strike . This the General Counsel has accomplished in the
instant case . He need not prove, under the doctrine of Rubin
Bros. Footwear, Inc., that the alleged discriminatee did not
engage in misconduct during the strike until the Respondent
establishes an honest belief that such misconduct did occur.
This does not shift the burden of proving discrimination
from the General Counsel to the Respondent . It merely
places the burden of going forward , at this point , upon the
Respondent to present evidence that Respondent has a honest
belief that the alleged discriminatee did engage in misconduct
warranting Respondent 's refusal to reinstate him., If this re-
quirement is satisfied on the record, the burden of going
forward would shift to the General Counsel to prove, by a
preponderance of the credible evidence , that the alleged dis-
criminatee did not , in fact , engage in such misconduct. Thus,
the burden of proving discrimination is always upon the Gen-
eral Counsel.
As noted heretofore , Respondent contends that the intro-
duction of the letter of discharge to Anthony dated October
3, 1973 , establishes Respondent 's honest belief that Anthony
engaged in misconduct during the strike and that , therefore,
the General Counsel , by failing to offer evidence that An-
thony did not, in fact , engage in such conduct , failed to meet
General Counsel 's burden of proof, and therefore , the com-
2 N.L.R.B. v Mackay Radio & Telegraph Co., 304 U S 333 (1938)
plaint should be dismissed . Under the contention thus post-
ulated , the issue becomes one of quantum of proof. Otherwise
put, does the letter of October 3 establish Respondent's al-
leged honest belief? The Respondent argues that it does and
cites several cases in support of this argument .' In each of
these cases, the Board held, citing Rubin Bros. Footwear, Inc.,
supra, that the respondents , having established that they had
honest beliefs that the alleged discriminatees in each case
were guilty of misconduct during strikes , further found that
the General Counsel in each case had failed to meet this
burden of proof that respondent had discriminated against
the dischargees because the General Counsel failed by a pre-
ponderance of the credible evidence to prove that the alleged
discriminatees did not , in fact , engage in the unlawful con-
duct for which the respondents , in honest belief, discharged
them.
However, in each of the cited cases, the issue of honest
belief was fully litigated and in each instance the respondent
offered credible evidence to show the basis for its alleged
honest belief that the misconduct had been engaged in by the
dischargees . In the case at bar , the basis for the Respondent's
claimed honest belief that Anthony engaged in misconduct is
not shown by the mere assertion in the letter, quoted above,
that Anthony had destroyed company property while picket-
ing. The letter, though written even before the end of the
strike, is, nevertheless , a self-serving document which must be
considered in that light when assessing the weight to be given
it. A showing that Respondem had an honest belief of An-
thony's alleged misconduct would seem to require more than
the mere assertion of such conduct in the letter . Some evi-
dence of, at least , even a hearsay report to the Respondent
that Anthony engaged in the misconduct would seem to be
necessary to support the factual allegations of the letter in
order to establish the basis for the Respondent 's alleged hon-
est belief. While it is certainly true that the doctrine of Rubin
Bros. Footwear, Inc., does not initially require the Respondent
to prove that Anthony did, in fact, engage in the asserted
unlawful conduct , something more than the Respondent of-
fers here is required.
Accordingly , I find and conclude that counsel for the Gen-
eral Counsel has established by the preponderance of the
credible evidence that the Respondent , by refusing to rein-
state Anthony at the end of the strike , discriminated against
Anthony and thereby violated Section 8(a)(3) and ( 1) of the
Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices of the Respondent set forth in
section III , above, occurring in connection with its operations
set forth above , have a close , intimate substantial relation to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
3 Clay M. Bishop and Robert E. White co-partners, d/b/a New Hyden Coal
Company, 108 NLRB 1145 (1954), Morrison -Knudsen-Strabag, a Joint
Venture of Morrtson-Knudsen Company, Inc. and Strabag Bau, A . G., 204
NLRB 312 (1973), Sumter Plywood Corporation, 208 NLRB 563 (1974)
OHIO POWER COMPANY 865
V THE REMEDY
Having found that the Respondent discriminatorily ter-
minated and refused to reinstate James E. Anthony, I shall
recommend that the Respondent offer him immediate and
full reinstatement to his former or substantially equivalent
position without prejudice to any seniority rights or other
privileges he may enjoy. Respondent shall make him whole
for any loss of pay he may have suffered by reason of the
discrimination against him by payment to him of a sum equal
to that which he would have received as earnings from the
date of the end of the strike until he is fully reinstated, less
any net interim earnings. Backpay is to be computed on a
quarterly basis in the manner established by the Board in F.
W. Woolworth Company, 90 NLRB 289 (1950), with interest
thereon at the rate of 6 percent per annum to be computed
in the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
On the basis of the foregoing findings of fact and upon the
entire record, I make the following:
CONCLUSIONS OF LAW
1. Ohio Power Company is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Utility Workers Union of America Local No. 468,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discriminatorily terminating and refusing to reinstate
James E. Anthony because of his union activities, Respond-
ent engaged in and is engaging in unfair labor practices affect-
ing commerce within the meaning of Sections 8(a)(3) and (1)
and 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]