Oklahoma Allied Telephone Co., Inc.

National Labor Relations Board - Board Decisions

May 28, 1974

210 N.L.R.B. 916 (N.L.R.B. 1974)

916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oklahoma Allied Telephone Company, Inc. and
Communications Workers of America , AFL-CIO.
Case 16-CA-5031
May 28, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 29, 1973, Administrative Law Judge
Lowell Ooerlich issued the attached Decision 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
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions I 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
Relations Board adopts as its Order the recommend.
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Oklahoma Allied
Telephone Company, Inc., Poteau, Oklahoma, its
officers, agents , successors , and assigns , shall take the
action set forth in the said recommended Order.
CHAIRMAN MILLER , dissenting:
The alleged violation in this case concerns the
discharge of telephone operator Billy J. Williams on
November 10, 1973, 2 days after she had voiced
certain complaints to management when, due to a
temporary breakdown in the air-conditioning sys-
tems, the switchboard room in which Williams
worked with about 14 other employees became
uncomfortably warm. The General Counsel framed
I In reaching our conclusion herein , we have not relied upon and do not
pass upon the Administrative Law Judge 's alternative theory that Respon.
dent would have violated Sec. 8(a)(l) of the Act in its discharge of employee
Williams, even If she had not been protesting on behalf of herself and other
employees, on the premise that a discharge under this theory would
necessarily interfere with Williams' right to refrain from engaging in
concerted activity by protesting in her individual capacity.
Respondent has excepted to certain credibility findin gs made by the
Administrative Law Judge . In support of these exceptions , Respondent has
pointed to several asserted inconsistencies In the testimony of Williams, the
discriminates . We have carefully weighed Respondent's contentions in this
regard and are satisfied that there exists on the record as a whole substantial
evidence to support the Administrative Law Jud e's ultimate finding that
Williams was discharged because she engage In protected concerted
activity, Unlike the Chairman , we see no reason for rejecting the
Administrative Law Judge 's crediting of Williams' testimony.
210 NLRB No. 123
the complaint, alleging Williams' discharge as a
violation of Section 8(a)(1) of the Act, on the theory
that Williams' discharge was in derogation of
employees' rights to engage in "concerted" activities
for "their mutual aid and protection," guaranteed by
Section 7 of the Act.
The General Counsel was, of course, obligated to
prove as a basic proposition that in addressing her
complaints to management about working condi-
tions, either that Williams was in fact acting as the
authorized spokesman of other employees as well as
herself, or, at the very least, that her conduct was
inspired by, or was directed towards inspiring, a
concerted plan of action by fellow employees for
their mutual aid or protection. The Administrative
Law Judge below found, and my colleagues agree,
that the General Counsel met his burden of proof.
For the reasons set out below, I dissent from that
determination.
The only evidence presented by the General
Counsel on this basic issue was the testimony of the
discharges herself . The Administrative Law Judge
below credited that testimony whenever it conflicted
with that of Respondent's witnesses ; and he made a
judgment-certainly open to some question in light
of the dischargee' s self-interest and the availability of
other witnesses who could have at the very least been
called to testify as to any actions taken in concert-
that General Counsel thereby met his evidentiary
burden.2 But even accepting Williams' testimony, I
do not agree that it establishes the "concerted
activity" premise of the complaint.
It shows only the following: Williams unilaterally,
and without having been designated by her fellow
employees as a spokesman for them, decided to go
see District Traffic Manager Hinkel to find out when
repairs to the air-conditioner could be expected and
told a fellow employee, Moats, she was going to do
so, About an hour or two after Williams' visit to
Hinkle, Moats, whose work station was immediately
adjacent to that of Williams, mentioned something
about the heat to Supervisor Cooper (the chief
telephone operator) and Williams interjected herself
"Discrepancies" in the conversations between Williams , Cooper , Sulli-
vant, and Moats turning on Cooper's and Moats' scheduled work period as
beginning at 2 p.m. are explicable on the ground that both may have come
in a few minutes before this scheduled work hour.
While we do not adopt all of the Administrative Law Judge's rationale
for excluding the affidavit of Moats, the exclusion was proper because
Williams was testifying as to what she heard Moats say, and Moats'
affidavit could not be used to impeach this testimony.
We do not subscribe to the Chairman 's view that for Williams ' activities
to have been concerted, her protest about them must have been
"authorized " by her fellow employees, or "inspired or directed toward
inspiring , a concerted plan of action " by fellow employees. As the
Chairman points out, Williams joined in a complaint Moats was making
about the lack of air-conditioning . This is enough to establish concerted
activity, though the evidence does not end here.
2 Cf. Maletta Trucking Co., 194 NLRB 794, 795.
OKLAHOMA ALLIED TELEPHONE
into that conversation. When questioned by General
Counsel on direct as to precisely what words she
used in complaining to Hinkle and in making
comments to Supervisor Cooper, Williams testified
that she told Hinkle "we would like to know when
repairs would be made" and that she later told
Supervisor Cooper "we would go home" when
Supervisor Cooper had said that the temporarily
uncomfortable situation would have to be tolerated.
When questioned by Respondent's counsel about her
statements to the supervisors she substituted the
word "I" for "we" at certain points.3
Upon those facts my colleagues find-but I would
not-adequate proof of concerted activity. My
colleagues seem to be saying that any time an
individual, without authorization from his fellows,
confronts management about a matter which could
be the subject of concerted action, the individual is
engaging in Section 7 "concerted" activity. Such a
definition of concerted activity runs counter to my
views and, I believe, the view of the courts which
review our decisions.4
3 Asked by Respondent's counsel on cross to describe again precisely
what she said to Supervisor Cooper when the latter told her and Moats that
the warmth would have to be tolerated, Williams answered "Well, the
statement that I made to her [Cooper] was that if we didn't get some relief
that afternoon , why, that it was unbearable, that we couldn 't of and it, that I
was sick from the fumes of the paint, and that I would go home sir if we
didn't get some relief " Respondent's counsel asked the following questions
and received the following answers:
Q "Well, what did he [Hinkle] say9"
A "He told me he wanted to speak to me about my attitude and
what I had said to Mrs Cooper "
Q "What else did he say if anything along that line""
A. "I told him I didn't realize I had spoken out of turn to Mrs
Cooper, that what I had said I hadn't said in anger ; that I had merely
stated the fact to her that all of us in the traffic room were aware of
concerning the heat, and that I told her that if it became unbearable
that I could go home At that point Mr Hinkle told me that if that was
my attitude to go home "
Q "Alright, in other words you had told Mrs. Cooper that if it ever
got that hot again that you could just leave and go on home9"
A. "No, Sir"
4 See my dissent in C & I Air Conditioning, Inc, McKeon Construction,
193 NLRB 911, and the recent opinion of the Ninth Circuit Court of
Appeals, dated October 30, 1973, 486 F.2d 977 , denying enforcement upon
the rationale of my dissent , see also Pacific Electricord Company v
N. L. R. B., 361 F.2d 310 (C A 9,1966); N. L R. B. v. Northern Metal Co , 440
F.2d 881 (C.A. 3, 1971), Mushroom Transportation Company, Inc v
N.L,R.B., 330 F.2d 683 (C A 3, 1964).
DECISION
STATEMENT OF THE CASE
917
LOWELL GOERLICH , Administrative Law Judge: The
original, first amended , and second amended charges were
filed by the Communications Workers of America,
AFL-CIO, on or about January 4, February 5, and April
12, 1972, respectively and were served upon the Respon-
dent , Oklahoma Allied Telephone Company , Inc., by
registered mail on or about January 5, February 2, and
April 12, 1973, respectively . A complaint and notice of
hearing was issued April 23, 1973. The complaint charged
that the Respondent had discharged its employee , Billie J.
Williams, on November 10, 1972 , because said employee
had engaged in concerted activities for the mutual aid and
protection guaranteed to its employees by the National
Labor Relations Act, as amended , herein referred to as the
Act.
The Respondent filed timely answer denying that it had
engaged in the unfair labor practices alleged.
The case came on for trial on May 24, 1973, at Poteau,
Oklahoma. Each party was afforded a full opportunity to
be heard , to call, examine and cross -examine witnesses, to
argue orally on the record, to submit proposed findings of
fact and conclusions , and to file briefs . All briefs have been
carefully considered.
FINDINGS OF FACT,i CONCLUSIONS, AND REASONS
THEREFOR
1. THE BUSINESS OF THE RESPONDENT
The Respondent is now , and has been at all times
material herein , a corporation duly organized under and
existing by virtue of the laws of the State of Oklahoma and
is engaged as a public utility in the business of providing
local and long distance telephone service to its customers
and subscribers at its facility in Poteau , Oklahoma, the
only facility of Respondent involved herein.
During the past 12 months, which period is representa-
tive of all times material herein , in the course and conduct
of its Oklahoma business operations , Respondent pur-
chased goods and materials valued in excess of $50,000
which goods and materials were transported to its facilities
in the State of Oklahoma directly from States of the United
States other than the State of Oklahoma.
During the past 12 months , which is representative of all
times material herein , in the course and conduct of its
Oklahoma business operations , Respondent has derived a
i The facts found herein are based on the record as a whole and the
observations of the witnesses,
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gross annual revenue of $ 100,000 from its communication
services to customers and subscribers.
Respondent is now, and has been at all times material
herein , an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Communications Workers of America, AFL-CIO, is
now, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES 2
The Pertinent Facts
Billie J. Williams was employed by the Respondent at its
Poteau, Oklahoma, telephone facility on January 3, 1972.
At the time of her discharge she was working as a traffic
operator which job entailed putting through long distance
calls, preparing tickets on calls, and assisting on local calls.
She had satisfactorily served her 3-month probationary
period and, except for the observance of a quick temper,
was judged as doing a good job. It was reported by Group
Chief Operator Ruby Manen that "Billie handles her calls
in a pleasant business like manner with plenty of 'Please'
and `thank yous,' however she is very quick tempered and
it has been necessary to talk to her about losing her temper
with a few unhappy customers." However, Manen testified
that she had never reprimanded Williams in respect to her
alleged quick temper.3
The traffic room in which Williams and 16 to 18 other
employees worked was located on the second floor of the
Respondent's Poteau building. The room was without
windows and its atmosphere was centrally controlled. On
November 8, 1972, the air conditioner ceased functioning.
As a result air stopped circulating within the traffic room
and the atmosphere became hot and uncomfortable. In
addition paint fumes drifted into the traffic room from
other areas of the building where painting had recently
been completed. These areas had been opened to increase
air circulation. Employees including Williams complained
of these conditions.
When Williams reported for work at 1 p.m., on
November 9, 1972, the atmospheric condition in the traffic
room was unchanged. The air conditioner remained
inoperative. Williams described the temperature in the
traffic room as exceeding 97 degrees. Williams remarked to
Supervisor Erma Lee Sulivant4 that the employees were
2 The credibility resolutions herein have been derived from a review of
the entire testimonial record and exhibits, with due regard for the logic of
probability, the demeanor of the witnesses, and the teachings of N L R B v
Walton Manufacturing Company & Loganville Pants Co, 369 U S. 404, 408
(1962). As to those witnesses testifying in contradiction to the findings
herein, their testimony has been discredited, either as having been in
conflict with the testimony of credible witnesses or because it is in and of
itself incredulous and unworthy of belief
3 Juanita M Cooper, chief operator, testified of Williams, "As a person
. she is a fine person . as far as her work she was a good operator
as long as she was not crossed "
4 At the time Sulivant was serving as the "in-charge operator while the
group chiefs were absent "
5 Sulivant testified that it was "unpleasant" to work in the area and that
there was a paint odor in the room Sulivant admitted that she heard some
of the employees say that "it was warm "
hot, the paint fumes were making her sick, and that the
employees were uncomfortable. Other employees made
similar remarks to Sulivant .5 Sulivant was unable to advise
the employees when the air conditioner would be repaired.
Williams discussed the situation with other employees. At
about 2:30 p.m. Williams asked Sulivant for permission to
visit Carl C. Hinkle, III, the district traffic manager for
Northern Arkansas, Oklahoma and Missouri, who was
filling in for Chief Operator Vada Dowell while she was on
vacation. Other employees were present when Williams
made this request. Permission was granted. Williams left
her station and proceeded to Dowell's office where Hinkle,
III, was located.
Williams informed Hinkle, III, that the employees'
working conditions were unbearable from the heat and
paint fumes and asked him, "When can we expect
something to be done?"6 Hinkle, III, replied, "Williams, I
don't fix air conditioners. Do you?" Williams replied that
she "didn't either, but that [she] thought a company the
size of Allied had had sufficient time in two days to get it
serviced." Hinkle, III, told her that a repairman had been
called the previous night.
Williams returned to her station. Thereafter, as Chief
Operator Juanita M. Cooper was picking up tickets, Mary
Moats, who worked beside Williams, complained about the
heat and asked when a repairman would be obtained.
(Cooper was standing between Moats and Williams.)
Cooper replied that she did not know when the air
conditioning would be repaired but pointing to Hinkle, III,
said, "There is the man that can give you the answer."
Williams replied, "No, he doesn't fix air conditioners. He
can't help us." Cooper said, "In, that case, then we will just
have to work and tolerate the situation . . . there was
nothing we could do about it." Williams responded, "Yes,
if it becomes unbearable, or if we don' t get some relief
soon, well, we can go home." 7
At about 5 o'clock on the same day Hinkle, III, and
Cooper were "talking about the fact that it was hot up
there." Cooper then related the incident regarding Wil-
liams. According to Hinkle, III, Cooper reported that "she
went up to ask Billie if she felt any cooler." Williams
responded, "No, I don't, not one bit cooler." Cooper said,
"Well, you can go talk to Chris Hinkle. He is in there."
Williams replied, "Well, I have already talked to him. He
didn't do one damn thing. I know what I can do though. I
can go to the house."8 Cooper added that she was
6 Hinkle, 111, testified that Williams said, "Chris, I am hot, can't you do
something about that air conditionmg'i it is hot in there I Just can't stand
it
7 Cooper testified that Williams said, "I have already talked to that man
in there and it didn't do a damn bit of good," which remark Cooper said she
later reported to Hinkle, III (Italics added) While Hinkle, Ill's testimony
contains the word damn it does not appear in the affidavit which he gave to
the Board Had he heard the word from Cooper, it seems implausible that
he would not have included it in his affidavit since his complaint was about
Williams' attitude Williams' testimony in which she denied employing the
word damn is credited
s The Respondent's witnesses quoted Williams as saying "I can go
home" rather than "we can go home" Since employee Moats also
participated in the conversation and the complaint was common to all
traffic room employees it is only natural that Williams should have used the
OKLAHOMA ALLIED TELEPHONE 919
"shocked" and didn't know what to do when Williams
made these remarks.9
The next day Williams was called into the presence of
Hinkle , III, Marten and Cooper. Hinkle, III, said that he
wanted to talk about her attitude and what she had said to
Cooper on the prior afternoon. Williams replied that she
"didn't realize that [she ] had said anything to Mrs. Cooper
that was out of line; that [she] had merely stated a fact."
Cooper spoke up and said that if Williams ever talked to
her in such a manner again she would send her home.
Williams replied that she had not spoken in anger. She told
Hinkle, III, that when Cooper said that "all [the employ-
ees] could do was tolerate the situation," she responded,
"No, that it was getting unbearable, and that we could go
home." Hinkle, III, replied, "If that is your attitude, why,
then it would be best that you went home." Williams
responded, "Well, if that is what you want I will go home."
At this point Williams left her job.
The same afternoon, after Williams had departed,
Hinkle, III, tried to reach Williams but was unable to
contact her. The next morning Hinkle, III, reached
Williams by telephone. He explained, "Billie, I think you
misunderstood yesterday. We did not fire you . . . I think
you think you were terminated, but you were not, we have
suspended you, but we will expect you back to work on
Saturday at your regular shift. I do want to caution,
though, that we will not tolerate any further displays of
insubordination, bad attitude and temper flareups, things
of this nature." Williams responded that she thought she
had been fired. Hinkle, III, further explained that Williams
was to return to work at 1 o'clock on Saturday but "with
the understanding that [her] attitude had to be changed
and [she] had to apologize to Mrs. Cooper for what [she]
had said to her." Williams responded that her "attitude
about the air conditioning had not changed, the fact was
the same, and that [she] would not apologize to Mrs.
Cooper because [she] did not feel that [she] had done
anything that she needed to apologize for." Hinkle, III,
then fired Williams.10
Hinkle, III, testified that he fired Williams because of
"her attitude and her refusal to change her attitude, the
insubordinate tone that she had and the remarks about
Mrs. Cooper." 11 In coming to the conclusion to discharge
Williams, Hinkle, III, testified that he gave consideration
to Williams' response, "I imagine I will react just the
same ." The change of attitude which would have satisfied
Hinkle, III (according to Hinkle, III), required this
statement from Williams, "Well, I will try, you know, not
to be abrupt, not to speak out to my supervisor in the
manner that I have. I'll make an effort to change my
word "we" in reference to herself, Moats, and other employees and it is so
found
9 Cooper testified that she was "shocked" because of Williams'
"threatening to get up and walk out of the job " She also said that it was "a
violation to threaten to walk off the job without authorization "
10 Hinkle, III, quoted Williams as saying "If the conditions are the same,
if I am put in the same situation , well I am sure I will react just the same,"
after which she made certain sarcastic remarks about Cooper Hinkle, III,
was unable to recall Williams' specific remarks about Cooper which he had
considered were sarcastic Moreover such remarks did not appear in a five
or six page summary prepared by Hinkle, ill, about 15 or 20 minutes after
the incident which he reviewed prior to testifying Such omission was not
satisfactorily explained His charge of sarcasm , was obviously fabricated. As
attitude." Williams thought Hinkle, III, wanted her to
"come back to work and not complain . . . no matter what
the working conditions were."
On a performance and salary review chart for Williams
dated November 10, 1972, Hinkle, III, wrote, "She
displayed a very belligerent attitude on four occasions
within a 36 hour period. It would have seriously under-
mined the authority of the office if she had been allowed to
remain employed."
Conclusions and Reasons Therefor
First: "Section 7 guarantees, and Section 8(a)(l) protects
from employer interference the rights of employees to
engage in concerted activities, which, as Congress has
indicated, H.R. Rep. No. 245, 80th Cong., 1st. Sess. 26,
include the right to strike." N.L.R.B. v. Erie Resistor Corp.,
373 U.S. 221, 233 (1963). Thus the Respondent's employees
on November 8 and 9, 1972, had the right protected by
Section 7 to protest concertedly to their employer a
particular condition of their employment, (the unsatisfac-
tory atmospheric condition in the traffic room), which they
considered objectionable and to strike or threaten to strike
in support of their protestations. N.L.R.B. v. Washington
Aluminum Company, Inc., 370 U.S. 9 (1962). In the case of
N.L.R.B. v. KDI Precision Products Inc., 436 F.2d 385
(C.A. 6, 1971), the court held that the circulation of a
petition by an employee, to wit: "We have asked in a nice
way for fans. Now we are going to give you until break
time, 9:50, 7-19-68 [the next day] or we sit with no work,"
was protected concerted activity. The court opined, "These
non-union employees sought to peacefully petition their
employer for redress of grievances concerning their
working conditions. Such an activity is certainly as
protected a concerted action as was the peaceful strike in
which non-union employees of the Washington Aluminum
Company were permitted to engage." An employee who
was suspended for circulating the petition and an employee
who nodded affirmatively in response to an inquiry as to
whether she was "going to do what" the petition stated and
was discharged were held to have been "unlawfully
penalized for the lawful exercise of the rights under Section
7 of the National Labor Relations Act." Thus the court
verified the right of employees to threaten to refuse to work
under unsatisfactory atmospheric conditions. The same
kind of protest existed in the instant case.
Williams protested working conditions (of which other
employees had also complained), which required employ-
ees to work in a closed room, filled with paint fumes
without adequate air circulation or air conditioning.iz
While these unwholesome working conditions also affected
between Hinkle, III, and Williams, where there is a conflict in testimony
Williams is credited.
ii Hinkle, Ill's, reference to Williams' sarcastic remarks about Cooper.
which he supported by no specifics, was patently a means of detracting
attention from the real reason for Williams' discharge
12 Whether the grievance lacked merit is immaterial for "absent unusual
circumstances the protections accorded employees under the Act are
not dependent upon merit , or lack of merit, of the concerted activity in
which they engage, even though such activity embraces the disobedience of
an order of management ." Bob Henry Dodge, Inc, 203 NLRB No. I. In any
event Hinkle , III, testified that the air conditioning grievance was "a valid
complaint "
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Williams, they affected all employees in the traffic room
and had been the subject of discussions in which Williams
participated. Moreover, the Respondent was aware of the
employees' complaints.
Williams' activities were not solely by or on behalf of
herself but were with or on behalf of other employees. Her
grievance was inextricably enmeshed with the complaints
of other employees and could not have been adjusted
favorably without benefit from such adjustment flowing to
the other employees in the traffic room. Williams' threat
(so designated by Cooper) that employees could "go
home" emerged during a conversation on the subject
grievance among Cooper, Moats and Williams, and was
provoked by Cooper's response to Moats' complaint.
Hence Williams' activities, which embodied a protest
against the insalubrious working conditions existing in the
traffic room common to all employees, were "concerted
activities for the purpose of . . . mutual aid or protection"
within the meaning of Section 7 of the Act, protected by
Section 8(a)(1) of the Act. Cf. Pacific Electricord Company
v. N.L.R.B., 361 F.2d 310 (C.A. 9, 1966). The Board has
held that "Even individual protests are protected as
concerted activity if the matter at issue is of moment to the
group of employees complaining and if the matter is
brought to the attention of management by a spokesman,
voluntary or appointed for that purpose, so long as such
person is speaking for the benefit of the interested group."
Carbet Corporation, 191 NLRB 892; see also Hugh H.
Wilson Corporation, 171 NLRB 1040; The Barnstder, Inc.,
195 NLRB 754 and Guernsey-Muskingum Electric Coopera-
tive, Inc., 124 NLRB 618.
There is little doubt that the air conditioning grievance
was "of moment to the group" and whatever was said to
the Respondent about it necessarily had to be "for the
benefit of the interested group" Furthermore, the working
conditions to which the employees were subjected in the
traffic room were imbued with an inherent tendency to
induce group response and "gripes." Such group response
was articulated in the words of Williams "we can go
home" "... when the `griping' coalasces with expression
[here Williams' remarks] inclined to produce group or
representative action, the statute protects the activity."
Hugh H. Wilson Company v. N.L.R.B., 414 F.2d 1345, 1348
(C.A. 3, 1969). At page 1349 the court further said, "The
cohesiveness of concerted activity need not be more than a
suggestion of group action. In fact, the existence of a
'group' need not be communicated to management." Thus
it is concluded that Williams' protests of working condi-
tions and her so-called threat that employees could go
home in protest against such working conditions were
protected concerted activities.
Second: The Respondent in its brief maintains that the
Respondent's traffic manager terminated Williams "be-
cause of her repeated verbal displays of temper and
insubordination towards her supervisors and her threatened
13 "It is the ' true purpose' or 'real motive' in hiring or firing that
constitutes that test " Local357, International Brotherhood of Teamsters [Los
Angeles-Seattle Motor Express] v. NLRB, 365 U.S 667, 675 (1961).
14 The Respondent relies upon Successful Creations, Inc, 202 NLRB 242
In that case the Board found that employee Mogollon was discharged for
cause and that the discharge was "prompted solely by Mogollon's attempt
to dictate conditions of his working overtime rather than his having engaged
refusal to remain on duty and work in the future in the event
certain alleged working conditions reoccurred" (Emphasis
supplied.) Thus, it would appear that the Respondent
concedes that Williams was discharged at least in part for
what has been found herein to have been protected
concerted activities . Under these circumstances the dis-
charge was unlawful. "Where the discharge of an employee
is motivated in any part whatsoever by the purpose to
discourage legitimate union or concerted activity, the
existence of contemporaneous , legitimate grounds for such
discharge affords no defense to a finding of unfair labor
practice on the part of an employer." Hugh H. Wilson
Corporation, 171 NLRB 1040, 1046. Moreover, the Respon-
dent' s "real motive" 13 for discharging Williams did not
stem from her alleged objectionable temper or insubordi-
nation (which , if it were a fact, had been tolerated) but
arose from her involvement in protected concerted
activities. The offensive words were "we could go home."
These words which Cooper interpreted as a threat "to walk
off the job" were what "shocked" Cooper and what she
considered were a violation of the work rules. Neither did
Hinkle, III, accept this attitude which was manifested to
him by Williams' persistence in the right to protest
unsatisfactory working conditions through concerted
activity. As he noted, to have permitted such an attitude
would have "seriously undermined the authority of the
office." Hinkle , III, not only demanded that Williams
forego the right to participate in protected concerted
activities but was so pertinacious on this point that he
insisted that she apologize to Cooper for having exercised
such right. Because Williams refused Hinkle, III's, de-
mands and refused to surrender Section 7 rights, she was
fired.14
Williams stood in no different stead when she answered
negatively to Hinkle , III's , demand that she surrender
Section 7 rights as a condition of continued employment
than the employee in N. L R. B. v. KDI Precision Products
Co., supra, who nodded her head affirmatively when asked
whether she would still support a strike if the employer did
not supply fans to dissipate the unsavory working
conditions to which she and other employees were
exposed. In that the discharge of Williams interfered with
rights guaranteed by Section 7 of the Act, the Respondent
violated Section 8(a)(1) of the Act.
Even though it were found that Williams' activities were
not protected concerted activities the Respondent , never-
theless , interfered with Williams ' right to refrain from
concerted or union activities as guaranteed by Section 7
when it discharged her. To discharge an employee because
the employee engaged in what would have been deemed
protected concerted activity if it had involved another
employee places a premium upon and discourages the
employee from exercising the "right to refrain" from
concerted or union activities for the employee must involve
himself in union or concerted activities if he wants to press
in conduct protected by Section 7 of the Act ." In the instant case Williams
was discharged because she refused to retract an alleged threat to engage in
a work stoppage if working conditions became unbearable and accept
conditions of employment which required a surrender of Section 7 rights.
Unlike Successful Creations, Inc, here there is no question but that Williams
was fired because she would not abandon Section 7 rights.
OKLAHOMA ALLIED TELEPHONE
a grievance by a mode otherwise protected without risking
discharge. This burden placed upon the employee is an
interference with his "right to refrain." It is tantamount to
an employer's stating, "If you want to grieve, grieve
through a union or as a participant in concerted activity or
we'll fire you." Such result certainly was not the intent of
the statute for Section 9(a) makes it clear that an employee
may refrain from concerted activity by presenting a
grievance to his employer without the intervention of a
bargaining representative even though a bargaining repre-
sentative has been chosen by the employer's employees.
The statute means that the right to refrain from union or
concerted activities is as important as the right to engage in
union or concerted activities. For an employer to interfere
with the exercise of either right is equally objectionable.
Thus, if the statutory purpose is to be implemented, an
employee's job ought not be placed in jeopardy if he
individually engages in activity which if joined by other
employees would be protected. The right "to refrain" is
rendered of little worth if the employee must join in
concerted or union activity to deal with his employer in
order to insulate himself against the chance of his
employer's reprisal. Accordingly Williams was protected
by Section 7 of the Act whether she did or did not engage
in protected concerted activities.
CONCLUSIONS OF LAW
1. Communications Workers of America, AFL-CIO, is
a labor organization within the meaning of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purpose of the Act for jurisdiction to be
exercised herein.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed them by
Section 7 of the Act, the Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. By unlawfully discharging Billie J. Williams on
November 11, 1972, the Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE RECOMMENDED REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. It
having been found that the Respondent unlawfully
discharged Billie J. Williams and thereby violated Section
8(a)(1) of the Act, it is recommended that the Respondent
15 See The Rushton Company, 158 NLRB 1730, 1740.
16 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
921
remedy such unlawful conduct. It is recommended in
accordance with Board policy 15 that the Respondent offer
Billie J. Williams immediate and full reinstatement to her
former position or, if such position no longer exists, to a
substantially equivalent position without prejudice to her
seniority or other rights and privileges and make her whole
for any loss of earnings she may have suffered as a result of
the discrimination against her by payment to her of a sum
of money equal to the amount she would have earned from
the date of her discriminatory discharge to the date of an
offer of reinstatement, less net earnings during said period,
to be computed on a quarterly basis in the manner
established by the Board in F. W Woolworth Company, 90
NLRB 289, and including interest at the rate of 6 percent
per annum in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
Accordingly, upon the basis of the foregoing findings of
fact, conclusions of law, and the entire record in this
proceeding, and pursuant to Section 10(c) of the Act, it is
recommended that the Board issue the following recom-
mended Order: 16
ORDER
The Respondent, Oklahoma Allied Telephone Company,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from discouraging concerted
activities of its employees by unlawfully discharging any of
its employees for engaging in concerted activities protected
by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act.
(a) Offer Billie J. Williams immediate and full reinstate-
ment to her former position or, if such position no longer
exists, to a substantially equivalent position without
prejudice to her seniority or other rights and privileges and
make her whole for any loss of pay that she may have
suffered by reason of the Respondent's discrimination
against her, in accordance with the recommendations set
forth in the section of this Decision entitled "The
Recommended Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records, and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Poteau, Oklahoma, establishment copies of
the attached notice marked "Appendix." 17 Copies of said
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure
be deemed waived for all purposes
17 In the event that the Board's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 16, in
writing , within 20 days from the date of the receipt of this
Order, what steps Respondent has taken to comply
herewith.
APPENDIX
WE WILL restore her seniority and pay her the
backpay she lost because we discharged her.
WE WILL NOT unlawfully discharge any of our
employees for engaging in concerted activities protect-
ed by Section 7 of the National Labor Relations Act, as
amended.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties were permitted to
introduce testimony and other evidence it has been decided
that we violated the National Labor Relations Act, as
amended, by discharging Billie H. Williams for engaging in
concerted activities protected by Section 7 of the National
Labor Relations Act, as amended.
WE WILL offer Billie J. Williams herjob or, if her job
no longer exists, a substantially equivalentjob.
Dated By
OKLAHOMA ALLIED
TELEPHONE COMPANY, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Federal Office Building, Room 8-A-24, 819 Taylor Street,
Fort Worth, Texas 76102, Telephone 817-334-2921.