Richard Home Telephone Co.

National Labor Relations Board - Board Decisions

Aug 26, 1946

70 N.L.R.B. 452 (N.L.R.B. 1946)

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In the Matter of RICHMOND HOME TELEPHONE COMPANY and LAURA
STUCK, AN INDIVIDUAL
In the Matter Of RICHMOND HOME TELEPHONE COMPANY and INDIANA
TELEPHONE WORKERS UNION, AFFILIATED WITH NATIONAL FEDERA-
TION OF TELEPHONE WORKERS
Cases Nos. 11-C-1231 and 11-C 1261, respectively .Decided
August 26, 1946
Mr. Clifford L. Hardy, for the Board.
Mr. Denver C. Harlan, of Richmond, Ind., and Mr. Fae W. Patrick,
,of Indianapolis, Ind., for the respondent.
Mr. R. 0. Waldkoetter, of Indianapolis, Ind., 11,1r. James Orr, of
Muncie, Ind., and Mr. John M. Sandlin, of Richmond, Ind., for the
Union.
Mrs. LauraStuck, of Richmond, Ind., pro ae.
.Mr. Samuel M. Kaynard, of counsel to the Board.
DECISION
AND
ORDER
On May 29, 1946, Trial Examiner Peter F. Ward issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that,
the respondent had not engaged in unfair labor practices in discharg-
ing Ransom Stigleman and recommended that the complaint be dis-
missed as to him and, further, found that the respondent had not dom-
inated or interfered with the formation and administration of the
Telephone Employees Association or contributed support thereto,
recommending that the complaint, insofar as it alleges a violation of
Section 8 (2) of the Act, be dismissed. Thereafter, the respondent
filed exceptions to the Intermediate Report and a supporting brief;
Laura Stuck filed a brief in support of the Intermediate Report.
None of the parties requested oral argument before the Board at
Washington, D. C., and no oral argument was had.
70 N L. R. B., No. 37.
452
RICHMOND HOME TELEPHONE COMPANY 453
The Board has reviewed the rulings of the Trial Examiner made'at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and, to the extent consistent with the Decision and Order
herein, hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, and finds merit in the respondent's exceptions.
1. The Trial Examiner found that the respondent, by Superin-
tendent Bishop's remarks to Blose, Snider, Stuck and Markley and
by circulating among its employees certain anti-union memoranda,
engaged in conduct violative of the Act. Blose and Snider were rank
and file employees, and we agree with the Trial Examiner that Bishop's
remarks to them constituted interference, restraint, and coercion,
within the meaning of Section 8 (1) of the Act. However, Stuck and
Markley were, like Bishop, supervisory employees, and, because of
this common managerial relationship, conversations between them
must necessarily be viewed and interpreted differently from those be-
tween rank and file employees and their supervisors.' Bishop ques-
tioned Stuck and Markley as to their membership in the rank and file
organization 2 and also asked Stuck why • she had not told him of a
union meeting which she had attended. Stuck's reply, that she did
not think it was her duty to tell him more "than anybody else," pro-
voked a remark by Bishop, which the Trial Examiner characterized
as a threat of economic reprisal against both rank and file employees
and supervisory personnel. Such a remark, if made to rank and file
employees, would clearly be unlawful; but here it was made to a super-
visory employee and there, is no showing that it was ever repeated
to rank and file employees.' Insofar as the remark may have been
also directed against supervisory employees, and it is not entirely clear
that it was, we cannot say, on the basis of this record, that it amounted
to more than a spontaneous statement of opinion, given by Bishop in
a conversation between representatives of management, or that Stuck
could reasonably have believed that the remark reflected the views
of top management. Under all the circumstances, we find, contrary
to the Trial Examiner, that Bishop's remarks to Stuck and Markley
were not violative of the Act.
Nor 'do we adopt the Trial Examiner's unfair labor practice finding
with respect to the circulation of the memoranda. These documents
contained no express or implied threat of economic reprisal and,
standing alone, were privileged under the right of free speech. The
See Matter of B F Goodrich Company, 64 N L. R B. 794.
8 Stuck and Markley were then members of the Union, but, pursuant to a consent
election agreement, they were subsequently excluded, as supervisory employees, from the
bargaining unit, and accordingly withdrew from membership
8 See Matter of Arnolt Motor Company, 68 N. L. R. B. 868.
454 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner found, however, that they acquired a "coercive char-
acter" when viewed in the light of the respondent's other unfair labor
practices. Inasmuch as we are reversing herein most of the unfair
labor practice findings relied upon by the Trial Examiner, there
remains no substantial basis for concluding that the memoranda could
reasonably have had a coercive effect on the employees.
2. The Trial Examiner found that Laura Stuck was discriminatorily
discharged in violation of Section 8 (3) of the Act. We do not agree.
Although some of the reasons advanced by the respondent to justify
her discharge are not particularly convincing, the record as a whole
indicates that there was some dissatisfaction on the part of the re-
spondent with respect,to Stuck's performance of duty as the chief
operator and that -there was a clash of personalities and continuous
friction between Stuck and Bishop, which resulted in poor adminis-
tration of the respondent's exchange. Moreover, we are not con-
vinced that there is a direct causal connection between Stuck's union
activity and her discharge. True, as mentioned above, she joined
the Union at the inception of its organizing campaign and attended
its first meeting, but shortly thereafter she was excluded from the
bargaining unit and, with the respondent's knowledge, she later re-
signed from the Union. , No showing is made that she thereafter
engaged in any union activity. Her discharge occurred several months
after her withdrawal from the Union and after the respondent had
concluded an agreement with the Union covering the rank and file
employees. Under the circumstances, we find, contrary to the Trial
Examiner , that Stuck was discharged for reasons unrelated to her
union membership and activity, and we shall accordingly dismiss the
complaint as to her.
3. The Trial Examiner found that the discharge of Mallie Stigleman
was violative of Section 8 (3) and (4) of the Act.' We disagree. As
set forth in the Intermediate Report, the Trial Examiner found, and
we agree, that both Mallie Stigleman and Ransom Stigleman, jointly
and individually, engaged in improper conduct warranting their dis-
charge and that therefore the respondent was justified in discharging
Ransom Stigleman. - At the hearing, the respondent defended Mallie
Stigleman's discharge on the ground of her misconduct, but also gave
an additional reason, viz, the fact that she had given false testimony
in the instant proceeding. It is apparent that the Trial Examiner
would have found that Mallie Stigleman had also been properly
discharged, but for the assignment of this additional reason, which,
in his opinion, brought the discharge within the proscription of Sec-
tion 8 (4) of the Act.
0
RICHMOND HOME TELEPHONE COMPANY 455
We have held, in the Kramer case 4 and succeeding cases,,' that an
employer is prohibited under Section 8 (4) of the Act from discharging
an employee for filing charges with or testifying before the Board,
even though they are false. However, in our opinion, the above-cited
cases are not here controlling on the facts. The mere giving of testi-
mony, whether true or false, does not clothe an employee with im-
munity and place him beyond the orbit of appropriate disciplinary
action by the employer for acts of misconduct and breaches of duty
occurring during the course of employment. That Mallie Stigleman's
discharge was, for all practical purposes, actually due to her miscon-
duct in eavesdropping and engaging in union activity during working
hours,e apart from -the co-existent reason that she testified falsely
against the respondent, is convincingly established by the fact, as
found by the Trial Examiner, that Ransom Stigleman was also dis-
charged at about the same time for similar, and possibly less flagrant,
acts of misconduct. Under the circumstances, we are not convinced
that the respondent viohlted the Act in discharging Mallie Stigleman,
and we shall accordingly dismiss the complaint as to her.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Richmond Home Telephone
Company, Richmond, Indiana, and its officers, agents, successors, and
assigns shall:
1. Cease and desist front :
(a) Interrogating its employees in any manner concerning their
union membership or activities;
(b) Coercing its employees in the exercise of their right to.self-
organization by threatening them with economic reprisal.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its exchange in Richmond, Indiana, copies of the notice
attached hereto marked Appendix "A." Copies of said notice, to be
furnished by the Regional Director for the Eleventh Region, shall,
after being duly signed by the respondent's representative, be posted
by the respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
4Matter of The Kramer Company, et al, 29 N L. It. B. 921.
See Matter of Northwestern Mutual Fire Association, 46 N. L. It. B. 825; Matter of
Burnside Steel Foundry Company, 69 N. L. It. B. 128.
" In this connection, it is observed that her separation notice stated that she was
"discharged for misconduct in connection with work."
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456 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(b) Notify the Regional Director for the Eleventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps have
been taken to comply herewith.
IT Is FURTHER ORDERED that the complaint, insofar as it alleges that
the respondent violated Section 8 (2) of the Act, and discriminatorily
discharged Laura Stuck, Mallie Stigleman, and Ransom Stiglemanr
be, and it hereby is, dismissed.
MR. JOHN M. HOUSTON took no part in the consideration of the
above Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not interrogate our employees in any manner con-
cerning their union membership or activities.
We will not coerce our employees in the exercise of their rights
to self-organization by threatening them with economic reprisal.
RICHMOND HOME TELEPHONE COMPANY,
Employer.
By--------------------- ---------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced or covered by any other material.
INTERMEDIATE REPORT
Mr. Clifford L. Hardy, for the Board.
Mr. Denver C. Harlan, of Richmond, Ind., and Mr. Fae IV. Patrick, of Indian-
apolis, Ind., for the respondent.
Mr. R. 0. Waldkoetter, of Indianapolis, Ind., Mr. Janes Orr, of Muncie, Ind.,
and Mr. John M. Sandhn, of Richmond, Ind., for the Union.
Mrs. Laura Stuck, of Richmond, Ind., pro se.
STATEMENT OF THE CASE
Upon an amended charge duly filed by Laura Stuck, an individual , and upon
a charge duly filed by Indiana Telephone Workers Union , affiliated with National
Federation of Telephone Workers,' herein called the Union, the National Labor
Relations Board, herein called the Board , by its Regional Director for the
1 By an order of the Board dated March 4, 1946, the above numbered cases were duly
consolidated for the purpose of hearing.
RICHMOND HOME TELEPHONE COMPANY 457
Eleventh Region (Indianapolis, Indiana), issued its complaint dated March 7,
1946, against Richmond Home Telephone Company, Richmond, Indiana, herein
called the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act Copies of the complaint and
.notices of hearing thereon were duly served upon the respondent, the Union and
Laura Stuck, an individual.
With respect to the unfair labor practices, the complaint, as amended subse-
quent to a hearing herein, and prior to a reopened hearing, alleged in substance:
(1) that the respondent, since on or about April 1, 1945, engaged in acts of inter-
ference, restraint, and coercion against its employees, 2 (2) that since on or about
October 1, 1945, the respondent has dominated and interfered, with the formation
and administration of the Telephone Employees Association, herein called the
Association, and contributed support thereto ; (3) that on or about October 9, 1945,
the respondent discharged Laura Stuck, a chief operator, and since that date has
failed and refused to reinstate her because of her activities on behalf of the
Union; (4) that, in violation of Section 8 (3) and (4) of the Act, the respondent
discharged Mallie Stigleman on April 8, 1946, and Ransom Stigleman on April 9,
1946, because of their aid and assistance to Board agents and because either or
both of them testified at the first hearing herein, and since said date respondent
has refused to reinstate them because of their membership in and activity on
behalf of the Union;' and (5) that, by the acts described above, the respondent
interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On or about March 25, 1946, the respondent filed its answer to the complaint,
denying that it has engaged in the unfair labor practices alleged.
Pursuant to notice a hearing was held at Richmond, Indiana, on March 27, 28
and 29, 1946, before Peter F. Ward, the Trial Examiner duly designated by the
Chief Trial Examiner. On April 24, 1946, following a first hearing herein, counsel
for the Board filed a motion to reopen the hearing and to amend the complaint
with the Chief Trial Examiner. The motion alleged that, subsequent to the afore-
said hearing the respondent discharged two employees in violation of Section
8 (3) and (4) of the Act, and moved that an order issue reopening the hearing
and for amendment of the complaint. On April 26,1946, the Chief Trial Examiner
granted counsel for the respondent until April 29, 1946, to file telegraphic objec-
tions to the granting of said motion. Counsel for the respondent filed timely
objections, which were denied by the Chief Trial Examiner. On May 1, 1946, the
Chief Trial Examiner issued his Order directing that the hearing be reopened;
that the complaint be amended as prayed for ; and that the designation of the
undersigned as Trial Examiner be continued. Pursuant to said Order a further
hearing was held at Richmond, Indiana, on May 16, 1946. At both hearings the
Board and the respondent were represented by counsel and the Union was repre-
sented by certain of its officers. Stuck appeared pro se. All parties participated
in the hearings.' Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence hearing upon the issues was afforded all
parties. During the first hearing, the undersigned reserved ruling on the respond-
ent's motion to strike certain testimony given by Board witnesses in connection
2 Stated generally, these acts are alleged to consist of anti-union statements and threats
of discharge and demotion of employees who joined or assisted the Union.
' The respondent's answer to the amended complaint denied that the Stiglemans were
discharged for Union activities and alleged that the discharges were for legitimate reasons.
' While the record shows that copies of the pleadings were served on an officer of the
Association, the Association did not intervene in the proceedings.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with statements alleged to have been made by one Luther Thomas , deceased.
Since the undersigned in his consideration of such testimony below makes no
finding adverse to the respondent based upon such testimony , the motion to strike
is denied . Oral argument by counsel for the Board and counsel for the respondent-
was heard at the close of the first hearing and included in the transcript of pro-
ceedings . The parties were afforded an opportunity to file briefs with the under-
signed and a brief was received on behalf of the respondent following the first
hearing.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following : ,
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Indiana corporation with its principal place of business in
Richmond, Indiana, where it furnishes telephone communication facilities.
During the 12-month period preceding the date of the hearing, the respondent
purchased equipment, material, 'and supplies valued in excess of $50,000, 75 per-
of which was shipped from points outside the State of Indiana,to Richmond.
Respondent is the only operating telephone facility in Richmond, Indiana, and
handles long distance calls over the facilities of the Indiana Bell Telephone
Company and of the American Telephone and Telegraph Company. The respond-
ent in its answer admitted that it is engaged in interstate commerce, and the
undersigned so finds.'
II. THE ORGANIZATIONS INVOLVED
Indiana Telephone Workers Union, affiliated with National Federation of
Telephone Workers, and Telephone Employees Association, unaffiliated, are
labor organizations admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Prior to on or about April 1, 1945, there had been no organizational activity
among the respondent's employees. During April 1945,8 Luther Thomas, a non-
supervisory employee of the respondent, induced the Union to undertake the
organization of respondent's exchange employees. On April 28 the Union- held
a meeting at the City Hall in Richmond. Thereafter, Fred Bishop, the respond-
ent's superintendent of equipment, engaged in conversations with respondent's
employees relative to their becoming or remaining members of the Union.
During the organizational campaign, Bishop talked to Earl C. Blose, a switch-
man who had been employed approximately 18 years, and asked him if he knew
that the Union was being organized. He also asked Blose why he had joined it.
Blose replied in substance that he"had joined the Union because of differences in
wages paid and because the respondent brought in new employees without
experience and paid them more than those who had been employed for a long
time. Bishop then asked Blose why he had not come to him in advance, and if he
knew that the respondent and Harry D. Lontz, president of the respondent, "didn't
think much of unions." Blose replied that until that time he had not thought
much of unions "but it got to the place where there had to be something done."
During the hearing, despite the admission in its answer, the respondent moved to
dismiss the complaint on the grounds that it is not engaged in commerce within the
meaning of the Act. The undersigned denied the motion
6 Unless otherwise indicated, all events referred to herein occurred in 1945.
RICHMOND HOME TELEPHONE COMPANY 459
Bishop then requested Blose to talk to the employees in an attempt to change
their minds on the Union and to form a company union. Blose replied that
he would not do that, as organization had gone too for and practically every-
body had joined the Union!
During May, Bishop talked to Leonard S. Snider, an employee who had been
employed from about January 5, 1944, to February 17, 1946. During the con-
versation, in Bishop's office, Bishop discussed the Union generally with Snider,
and stated that those employees who were responsible for the Union "would
be removed eventually, and the Union broken up, and those who were non-
members would be taken care of and those who were Union members would
be left out." During this same conversation, Bishop spoke of a "company"
union and stated in substance that if the employees would rather have a com-
pany union than an outside organization "they should come to him and ask
him. The company was not obliged to come (sic) to them and ask them if they
wanted a company union."'
Also during the Union drive, Bishop talked with Paul Markley, the chief
switchman, who, prior to a consent election referred to below, was a member
of the Union, and asked him whether he knew of any reason why the employees
were joining the Union. He also asked Markley whether he had joined the
Union.9
On April 28, Laura Stuck, the chief operator, whose discriminatory discharge
is discussed below, attended a union meeting at the City Hall. On April 30,
Bishop called her to his office and asked why he was not told of the union meet-
ing. When Stuck stated that she did not think it was her duty to tell him any
more "than anybody else" Bishop replied :
You have gone about it the wrong way, * * * There isn't anyone here
who has the right to organiz(,- a union against the company. There's not
one who has been refused anything, * * * It is going to be just too
bad for some of your (sic) older employees, the attitude you are taking
about the Union.10
On or about May 4, Frank I. Braffett, the assistant to the president, addressed
a "memo" to'Bishop and Verl Van Nuys" in which he stated that since hearing of
the effort to organize the employees, he felt that if certain facts were called to
their attention "they might hesitate to give up their independence as free people"
and then proceeded with a discussion of the history of the respondent company,
calling attention to improvements in working conditions and the fact that 2
weeks' vacation with pay was now given instead of 1 week ; that an expensive
'air conditiong system had been installed ; that a modern type rest room had been
7 This finding is based on the credited testimony of Blose. Bishop testified before Blose.
He was asked whether he had had a conversation with Blose during April and May con-
cerning unions and replied that he did not recall having had such a conversation, but
stated that he would not say that he did not have such a conversation . From the above
and the record , the undersigned is convinced that the conversation occurred substantially
as found above.
8 This finding is based on the credited and uncontradicted testimony of Snider. While
Bishop was called as a witness subsequent to Snider 's testimony, he was not questioned
concerning it and such testimony was not otherwise denied
8 This finding is based on Markley 's credited testimony . Bishop stated that he remem-
bered that unions were discussed between the two and testified :
I just really don't remember enough about it to make sure of what I did say to him
or what he said to me
10 This finding is based on the credited testimony of Stuck Bishop admitted that unions
were talked about between him and Stuck on this occasion . He did not deny having made
the above statements.
11 Van Nuys was superintendent in charge of all operations outside the exchange.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
installed for the operators and that the company paid for Christmas parties
arranged by different departments and had sponsored a team in the Industrial
Bowling League Attention was called to group life insurance that was available
and that a plan for health insurance and hospitalization would be presented
before long. After calling attention to the increase in respondent's taxes from
1935 to 1945, the memo added : "I feel that the Union organizer often tells only
half the story and leaves his hearers with a false impression * * ' "
On May 17, Braffett sent a second "memo" to Bishop and Van Nuys, dealing
generally with the respondent's efforts to procure wage increases through action
before the War Labor Board. The memorandum stated in part:
Naturally we would prefer to deal with our employees personally, who can
always talk to us individually or in groups, rather than through a union,
whose officials primarily are concerned with your monthly daces. Granting
however, that such an organization might be of some advantage in a large
corporation such as General Motors or Bell Telephone Co. where personal
recognition and merit is sometimes lost in the shuffle I sincerely believe
our employees will be better off in the long run if they maintain their inde-
pendence." [Italics supplied.]
On June 27, respondent and the Union entered into an agreement for a consent
election ; on July 10 an election was held, with the following results ; 52 employees
voted for the Union, 4 voted against the Union, and 4 did not vote. On September
17, 1945, respondent and the Union entered into a collective bargaining contract.
Conclusions
It is clear from the foregoing summary of the evidence and from the record as
a whole, and the undersigned finds, that with the inception of union activities
among its employees, the respondent embarked upon a planned course of conduct
calculated to discourage membership in the Union and to instill in the employees
a fear of economic reprisal in the event of their continued affiliation therewith.
It was admitted that the respondent's officials were opposed to any outside
union., In April and May, (luring the Union's organizational campaign, Super-
intendent Bishop tried to persuade Blose to initiate a company union, and he told
Snider, in effect, that union adherents would lose their jobs while non-members
would be favored by the respondent. Bishop also questioned the chief switchman
as to his union affiliation and gave voice to the respondent's intention to' punish
employees who might persist in their activities on behalf of the Union by telling
the chief operator that it was going to be "too bad" for union adherents. During
the same period, Braffett, the assistant to the president, added his personal dis-
approval of the Union by causing to be distributed among the employees two cir-
culars which clearly disparaged the Union and tended to restrain the employees
from joining the Union by the repeated assertion that membership therein meant
loss of freedom.
The respondent does not contend, nor does it appear in the record, that any of
the above-mentioned conversations between Bishop and the two supervisors,
Chief Switchman Markley and Chief Operator Stuck, were motivated by a desire
to preserve the respondent's neutrality concerning the Union's organizational
activities. Bishop learned of Markley's union membership by a point-blank
inquiry ; he also knew of Stuck's membership, for lie criticized her for attending
12 The respondent admits that the May 4 memorandum was mimeographed and circu.
lated among the employees. As to the circulation of the May 17 memorandum the record
is less clear : however, Blose testified that he had received a copy of it. Under the circum•
stances disclosed by the record, the undersigned is convinced and finds that both documents
were circulated among the employees.
IICHMOND HOME TELEPHONE COMPANY 461
the first union meeting without keeping Bishop informed. He did not contradict
Stuck's testimony that no management representative ever instructed her as to
how to conduct herself towards the Union because of her position as a supervisor.
't'hat his threats were intended for rank and file employees also, and not only for
the supervisors, is shown by his reference to "older employees" when speaking
to Stuck. Under these circumstances, Bishop's remarks cannot be considered
mere expressions of opinion among management representatives.
During the hearing and on oral argument, the respondent contended that the
memoranda circulated among the employees on May 4 and May 7 contain a mere
expression of opinion on the part of Braffett and are therefore protected under
the constitutional guarantee of free speech. The undersigned does not determine
whether the memoranda, standing alone, constitute interference, restraint, and
coercion within the meaning of Section 8 (1) of the Act, but does find that they
constitute an inseparable part of the respondent's coercive course of conduct
engaged in prior to the agreement for a consent election, and, when viewed in
conjunction with the other facts completing a pattern of coercive conduct, as
found above, the memoranda acquire a coercive character in the eyes of the
employees.
Upon the basis of the entire record. the undersigned concludes and finds that,
by the totality of its conduct in discouraging and warning its employees against
affiliation with or activities on behalf of the Union, in questioning them as to
their union affiliation, in threatening its employees with economic reprisals in
the event of their continued adherence to the Union, and in distributing circulars
disparaging the Union and publicizing the respondent's opposition thereto, the
respondent interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
B. The discriminatory discharge of Laura Stuck
(a) Events leading up to the discharge
Stuck was employed by the respondent in April 1926 and assigned to work
as an operator in the Long Distance Department. She was later promoted to
the position of supervisor, then to that of an instructor and during July 1936
was promoted to the position of chief operator. During all the time she worked
as chief operator she was under the supervision of Bishop. She joined the Union
on or about April 28, 1945, and attended one or two union meetings thereafter.
As set forth in Section III, A, above, Bishop called her to his office, 2 days
later, on April 30, and asked why she had not told him of the union meeting
and informed her, in effect, that the employees were organizing the Union in
the "wrong" way. He ended the interview with a statement that "it is going
to be just too bad for some of your (sic) older employees, the attitude you are
taking about the Union."
The record discloses, without dispute, that during the organizational activi-
ties of the Union, neither Bishop nor any other company official gave Stuck
any instructions as to how she should conduct herself toward the Union because
of her position as a supervisor.
The consent election agreement entered into between the respondent and the
Union, on June 27, and approved by the Board' s Regional Director, excluded
Stuck and Chief Switchman Markley from the appropriate bargaining unit as
supervisory employees.
Prior to October 9, Bishop informed Stuck that he had talked with Chief
Switchman Markley and found out what rate of pay he wanted and asked Stuck
what rate of pay she would be satisfied with. Stuck replied that she wanted $180
a month "straight time," which would have resulted in a weekly increase of $1.04
in her pay. On October 9, Bishop called Stuck to his office and discharged her.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
i
According to Stuck's testimony, their conversation on that occasion included the
following :
Q. What did he say and what did you say?
A. He asked me about a case that had been taken up before regarding an
operator, if I had known anything more about it, if I had found out anything
more about it, and I told him "no", and he said"Well, I guess you and I had
better get this over with," and he reached down in a drawer and got some
papers and put them on his desk, and I said "What is that", and he said
"This is what the company is doing for you. They are giving you a check
for the amount of two hundred and some dollars and a sixty days' notice."
Q. What did you say?
A. I said `.You carried out your threat, didn't you?"
Q. What did he say about that?
A. He said "What is that"-? and I said "Well, you said `It is going to be
too bad for some of you older employees, the attitude you are taking about
the union' ", and he said "Well, I knew it had to come."
Q. Is that all the conversation?
A. That is all he said. I said "I think you must have lied to Mr. Lontz
about me," and he said, "That had nothing to do with it, nothing whatever.
It was decided by a five man board. They investigated it elsewhere."
Q. Was that all the conversation?
A. Yes. I said. "I am not accepting the check, however."
Q During this nine years as chief operator in which Mr. Bishop was your
immediate superior, did you ever have him criticize you or the quality of your
work?
A. No."
(b) Contentions and testimony of respondent as to the discharge
Respondent, in support of its contention that Stuck was discharged for cause
and not because of her union activity, contends in substance and effect (1) that
for a considerable time prior to her discharge Stuck permitted long distance
calls to be delayed and accumulated for the purpose of forcing the respondent
to pay her on a "straight time" basis and to remove her from under the supervi-
sion of Bishop; (2) that she showed favoritism; (3) that, contrary to the rules
of the respondent, she permitted favored operators to prefer and serve certain
of tDe respondent's subscribers out of turn when it came to putting through long
distance calls; (4) that she permitted and ordered operators to listen in on
private conversations of Superintendent Bishop; and, (5) that she permitted
favored operators to "dead-beads 14 long distance calls and thereby deprived the
respondent of fees properly due for such service.
As,.to contention (1), it is clear from the record that the respondent, like
other telephone companies in the country, suffered from wartime shortages of
equipment and experienced personnel. Respondent's witnesses so testified,"
is Bishop denied that Stuck made any reference to threats during the conversation and
further testified that he did not "remember" that she had accused him of having lied to
Lontz concerning her. Otherwise the above conversation was not contradicted by Bishop.
It is undisputed that Stuck refused to accept the check for more than $200 offered to her
at the time of her discharge. In view of the above and the record the undersigned is
convinced that Stuck made the statements set forth above as to her reason for refusing the
check so offered, and since Bishop, at no time, denied making the threats in the first
instance, the undersigned credits Stuck's testimony above set forth.
14 Permitting calls to be made by employees without charge.
15 Chief Operator Sheffer testified : "That (wartime shortages) was standard everywhere
over the United States." She contended, however , that there were times when, by proper
arrangement of schedules , delays could be avoided.
RICHMOND HOME TELEPHONE COMPANY 463
and counsel for respondent in oral argument before the undersigned admitted
such was the fact. In support of this contention, respondent claims, as Chief
Operator Sheffer testified, that several months before her discharge, Stuck had
stated "there will be no services until I get what I want," and that "she wanted
a direct contract from the company." The evidence discloses, however, that
when Bishop called Stuck's attention to customers' complaints concerning delays,
she replied that the delays were due to a lack of experienced operators, without
whom it was impossible to give satisfactory service. Although in 1944 Stuck
had voiced a preference for a monthly salary, there is no evidence that she ever
demanded such payment until the time shortly before her discharge when Bishop
asked her what she expected in the way of wages. This took place after Bishop
had consulted Chief Switchman Markley as to his wage desires. There is no
credible evidence that Stuck ever demanded that she be removed from the
supervision of Bishop.
In support of its assertion that Stuck was responsible for the large number
of uncompleted or delayed calls, respondent offered testimony to the effect that,
subsequent to Stuck's discharge, completed calls increased by a large percentage,
or roughly from 1250 to 1700 per day, which increase, it contended, was due
solely to the fact that Stuck was no longer in charge of the Toll Room. The
record also contains uncontradicted testimony that new positions were added
to the exchange equipment 2 or 3 days before Stuck's discharge. In addition,
Sheffer, who was promoted to chief operator after October 9, admitted that
new positions were installed after the discharge and Bishop further admitted
that several experienced toll operators were added to the staff following October
9. Considering the foregoing testimony, the overburdened condition of telephone
facilities generally due to wartune conditions during the period of these events,
and the admitted fact that at no time prior to the discharge did the respondent
tell Stuck that she was to blame for the delays in service, the undersigned
finds that Stuck was not responsible for the delays and that the wartime delays
were advanced by the respondent as a pretext to cover its real motive for her
discharge.
This contention is without merit.
As to contention (2), the record discloses that,Louise Young and Ruth
Genderon 16 were formerly employed by the respondent as operators. Neither
of them has been employed since on or about October or November 1944. The
record further discloses that during her employment, Young was ill much
of the time and was frequently off duty ; that during the fall of 1944, while
both Young and Stuck were ill at home, some 4 or 5 operators informed man-
agement that if Young were permitted to return to work they would quit. When
Stuck returned' to work early in December, 1944, Bishop told her that some of
the girls had threatened to quit if Young were permitted to return. Stuck
admitted that upon her return, even after Bishop had informed her of the
girls' complaint, she tried to have Young recalled. She abandoned her effort,
however, and Young never returned.
Many of the respondent's witnesses and much of the testimony offered
by the respondent referred to alleged favoritism shown by Stuck for Young
and Genderon. The record shows that such investigation as was made by
Bishop in connection with this complaint was made in 1944 or early in 1945.
There was no evidence that Bishop considered that the investigation against
Stuck warranted any criticism or that any was given. The-undersigned finds
it unnecessary to determine whether Stuck in fact showed any favoritism
toward either Young or Genderon for the reason that the conduct, if in fact it
"Sometimes in the testimony referred to as Ruth Newhouse.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
occurred, was so remote in time, that it could not, under the circumstances
shown to exist herein, have been either the reason or one of the reasons for
the discharge of Stuck The resurrection of this remote complaint merely em-
phasizes the lack of a better reason for the discharge
This contention' is without merit.
As to contention (3), which also has to do with Young and Genderon and
likewise goes back to 1944, some 10 months before Stuck's discharge, the record
discloses that certain subscribers of the respondent, among whom was one
Gilbert, a banker, who is the son-in-law of Braffett, the assistant to the presi-
dent, received preferred service. This contention like the foregoing one has
to do with events that happened a long time before the discharge and is thus
too remote to have been the reason or one of the reasons for the discharge. The
fact that such reason was advanced under the circumstances shown to exist
herein, further indicates respondent's lack of a justifiable reason for the discharge.
This contention is without merit.
As to contention (4), the respondent sought to support its position in this
connection by the testimony of one Barbara Essenmacher, who testified, in
substance, that Stuck on one occasion, when sitting next to her at the board
when she had a call for Bishop, asked her to listen to Bishop's conversation,
which Essenmacher testified she refused to do. She further testified that
thereafter Stuck talked to Mrs. Bricker, another operator, following which
the latter came and sat down next to Essenmacher and demanded that Essen-
macher.listen to Bishop's telephone conversation, which Essenmacher testified
she did not do. Stuck denied that she ever told any operator to listen in on
Bishop's calls.
The record discloses that Essenmacher was first employed in October 1944 and
worked until on or about-June 28, 1945; that shortly prior to the first of July
she requested a vacation, which request she discussed with Bishop who referred
her to Stuck. Stuck refused to grant her a vacation at that time and informed
her that if she insisted on the vacation she would have to make up her mind
whether she wanted to retain her job or go on the vacation Essenmacher
elected to quit and left her job on June 28. Essenmacher was rehired on Octo-
ber 1, 1945, and thus at the time of the hearing had been employed some 14 to
15 months as a telephone operator. Essenmacher did not impress the under-
signed as a credible witness. Her testimony disclosed a resentment toward
Stuck because of the latter's refusal to grant her a vacation after she had been
employed less than 9 months. Stuck, on the other hand, impressed the under-
signed as a thoroughly credible witness. Her 20 years of service with the
respondent, 9 years of which she served as Chief Operator, -indicates to the
undersigned first, that she would not be disposed to eavesdrop on her superior,
and second, that if she did determine to do so she was too intelligent to request
a comparatively new operator to do the eavesdropping. Moreover, Bishop testi-
fied that Essenmacher's testimony given at the hearing was the first time he had
heard of the alleged request. Stuck's denial is therefore credited
This contention is without merit
Contention (5), which also pertains to Young and Genderon, refers to a time
so remote from the date of Stuck's discharge that the undersigned does not
believe that the events, even if they occurred as claimed by the respondent,
,constituted one of the reasons for the discharge.
In this connetion Sheffer testified that employees were permuted to, on occa-
sion, make "dead-head" calls; that they were not allowed to call from Center-
ville (Indiana), which was Young's home, to Connorsville (Indiana), through
Richmond, but could "dead-head" calls from Centerville to Richmond. Sheffer
RICHMOND HOME TELEPHONE COMPANY 465
further testified that Young and Genderon were not the only employees that
ever "dead-headed" a call out of Richmond and "that it is a common practice
to' `dead-head'. independent (company) calls." It is clear from the above and
the record that respondent's position in this connection, as in the preceding
contentions, was taken in an effort to justify the discharge.
This contention is without merit.
(c) Conclusions as to the discharge
The record affirmatively discloses that Stuck had been a satisfactory employee
for almost 20 years, advancing progressively to positions of higher pay and
greater responsibility until, in 1936, she was promoted to chief operator, in which
capacity she carried a burden of responsibility throughout the period of wartime
stresses.
With respect to Stuck's union activities, the record discloses that the respond-
ent was opposed to them and told her so ; indeed, as early as April 30, Bishop
threatened her with the discharge which eventually materialized when he told
her it "was going to be too bad" for union adherents.
As to the reasons for the discharge, advanced by the respondent at the hear-
ing, not only are they extremely trivial and unconvincing, but, because of their
extreme remoteness in point of time, they indicate an attempt to confuse the
issue and to conceal the real motive which prompted the discharge. It is signifi-
cant that the respondent at no time found fault with, or personally criticized,
Stuck for any of her alleged shortcomings, nor did Braffett, Bishop, or any
other witness either testify or contend that Stuck was ever criticized or repri-
manded for any of the alleged improper acts or conduct.
While it is true that on September 25 Stuck resigned her union membership and
the respondent was aware of this fact at the time of the discharge, it must be
borne in mind that her resignation does not necessarily indicate a loss of interest
in union affairs or abandonment of the principle of collective bargaining by the
chief operator on her own behalf.
Knowing that Stuck's resignation gave no assurance of future compliance with
the respondent's point of view in union matters, the respondent had reason to
expect, and it did expect, that Stuck, would remain sympathetic towards the
Union. Accordingly, relying upon Stuck's apparent divorcement from the remain-
ing employees, the respondent discharged her in order to rid itself of a union
sympathizer. This conclusion is further buttressed by the fact that following
the discharge, according to the uncontradicted and credited testimony of Markley,
the chief switchman who had resigned from. the Union under circumstances
identical to those of Stuck, Bishop told Markley to "watch [his] step for [his]
own benefit."
In arriving at this conclusion, the undersigned has considered the fact that
Stuck was discharged shortly after she requested an increase in pay, and that
such demand could have provoked her dismissal. However, no contention what-
ever is made that the question of wages was a factor in the respondent's decision.
Rather, it is clear that Stuck requested a raise only in response to Bishop's
inquiry as to her desire in the matter, and that the respondent had, a day or two
previously, granted a wage increase to Chief Switchman Markley, whose position
was similar to Stuck's.
Similarly, due consideration has been given the fact that Stuck was a super-
visory employee and that the respondent's right to protect its neutrality with
respect to its employees' union affairs might be placed in issue. It does not
appear that Stuck at any time, either before or after her resignation from the
466 DECISIONS OF NATIONAL LABOR RELATIONS i BOARD
Union, sought to influence her subordinates in their choice of a bargaining repre-
sentative. Aside from what effect her mere membership in the U*iion might
have had upon the thinking of her subordinates, the record is barren of any
other evidence of activity on her part which might be said to have compromised,
or tended to compromise, the respondent's neutrality.17 It is of equal significance
that neither at the time of the discharge nor at the hearing did the respondent
contend that it acted to protect its neutrality." Indeed, Superintendent Bishop
admitted that he never instructed Stuck as to how she should comport herself
with respect to the Union's organizational activities. Under these circum-
stances, Stuck's supervisory status has no bearing upon the determination of
the respondent's real motive in discharging her.
Upon the basis of the entire record the undersigned is convinced and finds that
the respondent discharged Laura Stuck on October 9, 1945, and thereafter refused
to reinstate her to her former or equivalent position, because of her prior mem-
bership in, and continued sympathy for, the Union, and thereby interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
C. The alleged domination and interference with the formation and administration
of the Association
Luther Thomas was employed by the respondent as a cable splicer and switch-
man. On or about April 1945, he got in touch with certain officers of the Union
and induced them to undertake the organization of the telephone exchange em-
ployees of the respondent.
Thomas continued active on behalf of the Union until after the consent election
had been held and the Union was designated as bargaining agent. When the
time came for the selection of officials for the local, Thomas became a candidate
for the office of steward. He was unsuccessful in his effort and was defeated at
the election. As a result of his defeat for union office Thomas "got mad," with-
drew from the Union, and started, "a competing union."
On or about August 14, Thomas suggested to employee Blose that the latter
drop out of the Union "and join a union that he was going to start." When
Blose said that Thomas' proposed union would never get any place, Thomas
replied that he, "was talking with authority" and if Blose did not leave the
Union then he "might not have a chance later." Subsequently Thomas informed
Blose that he had organized his "union."
During the latter part of October 1945, Bishop interviewed, and subsequently
hired, Norma Atkins, an experienced toll operator. She was required to take
a physical examination before taking over her position. On the night before
she went to work Thomas called at her home and stated that Bishop had sent
him. "In order to get rid of him," Atkins signed an Association application
card after Thomas had spent some 2 hours or more soliciting her membership.
Atkins testified that she did not thereafter inquire of Bishop whether or not he
had sent Thomas to see her.
Sara Meyers, who had formerly been employed as an operator and had quit
,her job during 1944, was rehired in October 1945. Shortly after she returned to
work, she had a conversation with Thomas , concerning which she testified its
follows :
17 See Matter of 'dlimax Engineering Company, Division of General Finance Corporation,
66 N L it. B. 1359.
18 See Matter of S W. Watkins & Sons, 53 N. L. it. B. 235.
RICHMOND HOME TELEPHONE COMPANY 467
A. He told me that he was forming a union of his own, backed by the Com-
pany and if I joined this union that in September 1946 when the contract
was to be renewed that I would have a better standing with the Company.
Q. Was that all of the conversation?
A. It was quite a bit more, but I don't remember that.
Q. Did you sign a card?
A. Yes, I did, to keep him from calling me.
During October 1945, following a grievance committee conference with manage-
ment concerning a minor matter, Bishop complained to the union representatives
that Mallie Stigleman was causing too much confusion among the operators by
engaging in union activities on respondent's property and time. Whereupon
John M. Sandlin, chief steward for the Union, stated "that it was not Mrs.
Stigleman that was keeping the operators confused ; it was Mr. Thomas calling
them up at all hours during the day and night, on duty and off duty, to get them
to withdraw out of the Union." According to Sandlin's uncontradicted and
credited testimony, Bishop then said :
Well, I will make a bargain with you. If you stop Mrs. Stigleman 18 from
her Union activity on the company time, I will stop Mr. Thomas.
Sandlin further testified, without contradiction, that he then asked Bishop, "If
the company has nothing to do with Mr. Thomas' activity, how can you stop
him?", but that Bishop "ignored" this query.
At a subsequent grievance meeting between representatives of management
and the Union, and after the grievance issue had been discussed, Bishop again
complained of Stigieman's activity during working hours and accused Sandlin
of not doing anything to stop her activity. Bishop was then informed that
Thomas was using President Lontz' name in connection with his organization
plans. Bishop thereupon said:
I will stop that, I will go better than that ; I will have someone higher up
than me stop him.
Under date of November 12, 1945, Bishop wrote Thomas as follows:
Word has come to me that you are in talking to the different employees that
you are using some of the names of the officials of the company in doing so.
In some cases referring to the company as such.
Whether within or without the building you must refrain from this at all
times. Other activities without the building you must absolutely not impli-
cate the company or any individual official. Please don't let anything be said
that we will be compelled to mention this again.
( Signed ) FRED BISHOP.
Shortly prior to March 3, 1946, Thomas died. Under date of March 3 a Mrs.
Jennie I. Borton wrote the respondent and stated that she was sending, under
separate cover, Thomas' telephone and some union literature. She also wrote:
I do not feel it is my duty to destroy. Although Mr. Thomas ask me to
destroy all the material pertaining to the union, I am leaving that part of
it to you.
Braffett testified that the correspondent had received the box referred to by
Mrs. Borton and that it contained some Association authorization cards. Coun-
iy The record conclusively discloses that at that time Mrs Stigleman was very active in
soliciting membership and in collecting dues on behalf of the Union on the respondent's
property, both during and out of working hours . This activity was admittedly done
contrary to the terms of the contract between the Union and the respondent.
712344--47-vol. 70-31
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sel for the respondent, disclaiming any interest in the cards, proposed to deliver
them to the Board's attorney or to the Examiner. Since they were not marked
for identification or offered as exhibits, the Examiner did not accept the offer.
The cards were then turned over by counsel for the respondent to Barbara
Essenmacher, who had testified that she is secretary of the Association.
Counsel for the Board contends in substance that Superintendent Bishop's
attempts to induce employees Blose and Snider to undertake the formation of a
company union, Thomas' knowledge of Atkins' employment in advance of her
reporting for work, Bishop's failure publicly to disavow Thomas' representations
of management support, and his' offer to "settle" with the Union by curtailing
Thomas' activities, prove that the respondent violated Section 8 (2) of the Act.
It is true that the respondent was opposed to the organization of its em-
ployees by an outside union, and that, prior to the consent election, it suggested
to the employees, the formation of a company union. It is equally clear, as
evidenced by the subsequent discriminatory discharge of the chief operator, that
the respondent maintained a continued attitude of opposition to the Union after
its certification as the statutory representative of the employees. There is, how-
ever, no persuasive evidence in the record to support a finding that the respondent
authorized Thomas in- his efforts to organize the Association or assisted him in
any way in its formation or support.
Originally Thomas was very active on behalf of the Union and abandoned it to
form a competing organization only because of resentment in not being elected
shop steward. There is no contention that Thomas was in fact a supervisory
employee or that any employees might reasonably have believed him to be a
representative of management. Indeed, it was Thomas who first approached
the Union's representatives and requested that they organize the respondent's
employees., The mere fact that Thomas' activities were aimed at a goal also
sought by the respondent, does not warrant the inference that the two acted in
concert.
The undersigned sees no reason in the record to discredit the unimpeached
testimony of Braffett as to how the card records of the Association came into
the respondent's possession. Thomas' knowledge of Atkins' employment before
she assumed her duties might have been obtained from a number of sources
other than the management. Any suspicion that arises from other details in
the record, such as Bishop's offer to control Thomas and the fact that he per-
sonally typed the November 12 letter of admonition to Thomas instead of having
his secretary do so, seems to be offset by the respondent's conduct in negotiating
and executing a collective bargaining agreement with the Union and, according
to the Board's witnesses, living up to its terms.
Considering the entire record,, the undersigned finds that the evidence does
not support a finding that the respondent dominated and interfered with the
formation or administration of the Association, or in any way assisted it or
contributed support thereto. Accordingly, the undersigned will recommend that
the complaint, insofar as it alleges a violation of Section 8 (2) of the Act, be
dismissed.
D. The discharge of Mallie Stigleman and Ransom Stigleman
1. Mallie Stigleman
The complaint, as amended, alleges that the respondent, on April 8, 1946,
discharged Mallie Stigleman and on April 9, 1946, discharged Ransom Stigleman
because either or both of them gave testimony under the Act ; gave information
to and otherwise assisted Board agents in the investigation of charges herein ;
and because of their membership in and activities on behalf of the Union.
RICHMOND HOME TELEPHONE COMPANY '469
(a) Events leading up to the discharge
Mall'ie Stigleman, the wife of Ransom S(igleman, was hired as a cleaner and
matron on March 22, 1943. She joined the Union and became active on its behalf.
She was called as a witness for the Board in the instant case and testified on
March 27 and 28, 1946 Following the first hearing herein, and on April 8, 1946,
she was discharged by the respondent. Seveial weeks after the discharge she
was given a Separation Report which stated that she was "discharged for mis-
conduct in connection with work."
(b) Contentions of respondent and its witnesses as to the discharge
The respondent contends in substance: (1) that from her testimony given at
the hearing herein it learned that Mallie Stigleman had for some time past and
on many occasions made it a practice of eavesdropping upon conversations between
respondent's officials by secreting herself in the basement of respondent's building
under the office of the president and under the office of the assistant to the
president and listening to or attempting to listen to the private conversations of
such officers; (2) that in violation of the contract between the Union and the
respondent, she engaged in union activities during working hours; and (3) that
she testified falsely at said hearing.
As to the first contention, Mrs. Stigleman testified that she listened to conversa-
tions between Bishop and Lontz, under the latter's office; that she listened to
conversations under Braffett's office on different occasions, including a time
when respondent's officials were conferring with its counsel in connection with the
instant case, and on a further occasion when respondent's officials were con-
ferring with a Field Examiner for the Board. The record discloses that prior to
her testimony in the first hearing herein the respondent had no knowledge of
Mrs. Stigleman's practice of eavesdropping on its officials.
Mrs. Stigleman testified that she heard the conversations abo^'e referred to with
the aid of a rubber tube which she had inserted in a "T" joint through which
certain wires or cables passed from the basement through the floor and into the
offices above. She stated further that other than the rubber tube and the "T"
joint she had used no amplifying machinery of any kind. On the basis of the
testimony of four disinterested witnesses introduced by the respondent who
tested the apparatus, and after visiting and viewing the premises, the undersigned
is convinced and finds that it would be utterly impossible for Mrs. Stigleman or
any other person to have heard a conversation between Lontz and Bishop on
October 9, in the manner and with the aid of the apparatus as testified to by her, in
view of which the undersigned rejects Mrs Stigleman's testimony wherein she
testified that she overheard a conversation between Lontz and Bishop on October
9, and wherein she testified to having heard other conversations of respondents
officials in a like manner and with the aid of such apparatus.
Since the undersigned' does not credit Mrs Stigleman's testimony as to the
manner and means by which she claims to have heard the alleged conversations
related by her, he makes no findings adverse to the respondent, upon the basis of
any of her testimony.
This contention has merit
As to the second contention, the record discloses that the Union and the re-
spondent executed a collective bargaining agreement under date of September
17, 1945, which provided, inter aha, that there should be no union activity during
working hours. Mrs. Stigleman in her testimony admitted having engaged in
such activity in violation of the contract. The evidence discloses that on two
separate occasions the respondent's officials complained of her activities to the
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's grievance committee and were advised that such activity would be dis-
continued. While the respondent was aware of Mrs. Stigleman's activity and
complained thereof , it neither discharged nor personally warned her at that
time. The respondent was justified in considering such activity at the time
it discharged her. -
This contention has merit.
As to the third contention, having to do with alleged falsification of testimony,
the respondent in its answer to the amended complaint alleged, in addition to
the reasons referred to in contentions 1 and 2 above, that it discharged Mrs.
Stigleman because she gave false testimony at the first hearing herein. In
this connection Lontz testified that at the time he instructed Bishop to dis-
charge both Mr. and Mrs. Stigleman for misconduct, he directed that Mrs. Stigle-
man be discharged for "falsehood as well as for misconduct." On cross-examina-
tion Lontz testified that the "falsehood" was only one of two or three other
reasons for the discharge. Under date of May 13, 1946, respondent, in a state-
ment of its contentions for the discharges made to the Indiana Employment
Security Division, stated in part, "that the said Mallie Stigleman gave false
testimony at the time of a hearing before the National Labor Relations Board
at Richmond, Indiana, on the 27th day of March, 1946 .. From the fore-
going it is clear that the respondent gave substantial consideration to the fact
that Mrs. Stigleman had given testimony, which was, in the opinion of the re-
spondent, false testimony.
An employer may not discharge an employee because he has filed charges
or given testimony under the Act. In the Matter of The Kramer Company,
et al. 120 the Board said :
Section 8 (4) of the Act expressly prohibits discharge or any other form
of discrimination against an employee "because he has filed charges or
given testimony under the Act." We have found that the respondents de-
termined not to reemploy Silvick because she had filed charges which the
respondents deemed "false." The prohibition of the statute against dis-
crimination is effective irrespective of whether the employer believes the
charges to be false or whether the ultimate proof sustains their validity.
To hold otherwise would be to subject an employee, who invoked the pro-
tection of the Act, to the peril of discrimination without redress in every
case where the employer considered the charges false or where, for what-
ever reason, the entire proof after a trial upon the merit failed to sustain
the validity of the charges filed To that extent such holding would nullify
the express statutory protection afforded employees against the unfair
labor practice condemned by Section 8 (4) of the Act.
This contention is without merit.
(c) Conclusions as to the discharge
It appears that the respondent in its discharge of Mrs. Stigleman relied upon
and gave substantial consideration to three major grounds for so doing. As
found above, two of the reasons have merit and a third is without merit in that
it is wholly illegal and is prohibited by the Act. Since the discharge was moti-
vated in a substantial part by in illegal motive it becomes a discriminatory
one under the Act. The fact that the respondent was motivated in part by legal
reasons does not remove the taint of illegality found in the third contention
above.
20 29 N. L R B 921.
RICHMOND HOME TELEPHONE COMPANY 471
It is therefore found that by the discharge of Mallie Stigleman on April
8, 1946, thereby discriminating in regard to her hire and tenure of employment,
and discouraging membership in the Union , the respondent has interfered with,
restrained , and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. Ransom Stigleman
(a) Events leading up to the discharge
Ransom Stigleman was first employed by the respondent in 1925 as a janitor
and cable helper and remained in its employ for 21/ years. He was re-employed
on October 7, 1936, as a janitor, and continued in such work until his discharge
on April 9 , 1946. He testified , without contradiction , that he was a member
of the Union.
(b) Evidence and contentions
The complaint alleges that the respondent discharged Ransom because of his
membership in and activities on behalf of the Union , in violation of ,Section
8 (3) of the Act. It also alleges that his discharge constituted a violation of
Section 8 ( 4) of the Act , apparently alleging that Ransom either gave testimony
in the first hearing herein or that he assisted the Board in its investigation and
preparation preliminary to the hearing. The respondent denies these allega-
tions and contends that Ransom 's discharge was caused by his conspiring with
his wife in her eavesdropping activities and his own surreptitious spying upon
company officials during working hours.
Aside from his membership in the Union , it does not appear that Ransom
engaged in any union activities . He did not testify during the first hearing
herein. No evidence was offered to prove that he at any time or in any way
assisted Board. agents in the investigation of any of the charges herein.
Although not clearly stated, the Board's attorney apparently urges that the
timeliness of Ransom 's discharge , following quickly upon that of his wife,
indicates a discriminatory motive, and that, in some unspecified manner, his
wife's activities , revealed in the course of a Board hearing, bring Ransom's
discharge within the purview of Section 8 ( 4) of the Act . Such conjecture,
however, does not tend to support the charge of discrimination as to Ransom.
There is evidence supporting the respondent 's contention that Ransom aided
his wife in her improper activities , and that, despite his realization that such
conduct was wrong, he did not report it to his superiors . It appears from his
own testimony that he knew his wife had "eavesdropped and overheard con-
versations between the Company officials ," that he knew from which points she
listened on such occasions , that he had seen her stand on boxes in the basement
in order to overhear conversations in the room above, and that he never reported
such activities to any officials of the respondent . Ransom also testified that
although the basement supply room door had a fixed lock which could be opened
or closed from inside or out, he had attached a screen door hook and eye-to the
inside in order to insure privacy on certain occasions ; he explained this inside
latch as necessary because his wife sometimes changed into working clothes
in that room.
(c) Conclusions
In view of this testimony , there can be no question but that Ransom assisted
his wife in her improper activities in the respondent 's" premises and during
working hours . At the time of the discharge , Bishop told Ransom that it was
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"inconceivable that he remain an employee of this Company in connection with
the discharge of his wife," and, a few weeks later, a separation notice was
delivered to Ransom, stating that he had been discharged "for misconduct in
connection with work." Clearly the respondent was justified in discharging
Ransom for his improper conduct so revealed in the record.
As to the second asserted ground for discharge, that Ransom neglected his
work in order to spy on management representatives from open windows and
over door transoms while they discussed confidential matters, the evidence is
conflicting. Several officers of the respondent testified generally that they had
been aware of such conduct during the time of the events giving rise to the charges
herein. Ransom vigorously and directly denied any such conduct. The under-
signed finds it unnecessary to make any findings on this testimony inasmuch as,
independently of this particular assertion of misconduct, the record shows suffi-
cient basis for his discharge
Upon the basis of the entire record, the undersigned is convinced and finds
that Ransom Stigleman was discharged because of improper activities carried
on in the course of his employment, and that, in discharging him, the respondent
did not commit an unfair labor practice within the meaning of Section 8 (3) or
(4) of the Act. _
IV. THE EFFECT OF 1HE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the sei-eral States, and tend to lead.to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. IHl3 REMEDY
Having found that the respondent has engaged in certain unfair labor practices,
the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
The undersigned has found that the respondent discriminated in regard to the
hire and tenure of employment of Diallie Stigleman because she gave testimony
under the Act. The undersigned has further found above that Mallie Stigleman
was guilty of flagrant misconduct in that she eavesdropped and attempted to
listen to private conservations between officials and representatives of the re-
spondent and that contrary to the provisions of the contract between the Uifion
and the respondent she engaged in union activities during working hours In
view of the misconduct referred to herein the undersigned is of the opinion that
the policies of the Act would not be effectuated by ordering her reinstatement
to her former or substantially equivalent position or by ordering that she be
made whole for any loss of pay she may have suffered by reason of the respondent's
discrimination against her. It is therefore recommended that Mallie Stigleman
not be reinstated or be awarded back pay for any time lost.
The undersigned has found that the respondent discriminated in regard to
the hire and tenure of employment of Laura Stuck, thereby discouraging member-
ship in the Union In order to effectuate the policies of the Act it will be recom-
mended that the respondent offer her immediate and full reinstatement to her
former or substantially equivalent position without prejudice t9 her seniority
or other rights and privileges, and make her whole for any loss of pay she may
have suffered by reason of the respondent's discrimination against her by pay-
ment to her of a sum of money equal to that which she normally would have
RICHMOND HOME TELEPHONE COMPANY . 473
earned as wages from October 9, 1945, the date of the discrimination, to the date
of the offer of reinstatement, less her net earnings 2' durilig said period
In view of the unfair labor practices found to have been committed by the
respondent, constituting an independent violation of Sec,tifn 8 (1), as well as a
violation of Section 8 (3) of the Act, the undersigned is-O' the opinion and finds
that there is real danger of the commission by the r^,,pondent of other and
additional unfair labor practices in the future. The unfair labor practices thus
far committed-have led not only to interference, restraint, and coercion, but to
discrimination of such a degree as would cause an average reasonable employee
to fear that union or concerted activity on his part might lead to further dis-
criminatory discharges. This disclosed attitude of opposition by the respondent
toward organization of its employees and the continuing threat which it implies,
requires a cease and desist order as broad as the threat.
It will therefore be recommended that the respondent cease and desist from in
any manner interfering with, restraining, or coercing its employees in their rights
to self-organization for the purpose of collective bargaining as guaranteed in
Section 7 of the Act 22
Upon the basis of the above findings of fact and the entire record in the case,
the undersigned makes the following: -
CONCLUSIONS OF LAw
1 Indiana Telephone Workers Union, affiliated with National Federation of
Telephone Workers, and Telephone Employees Association, unaffiliated, are labor
organizations within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Laura
Stuck, thereby discouraging membership in the Union, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (3)
of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
4. By discharging Mallie Stigleman on April 8, 1946, because she had given
testimony under the Act, thereby discouraging membership in a labor organiza-
tion, the respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (3) and 8 (4) of the Act.
5 The respondent has not dominated or interfered with the formation and
administration of the Association or contributed support thereto in violation of
Section 8 (2) of the Act.
6 By the discharge of Ransom Stigleman on April 9, 1946, the respondent has
not violated Section 8 (3) and (4) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
a By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company, 8 N. L. It B 440 . Monies received tor work performed upon
Federal, State, county, municipal, or other work- relief projects shall be considered as
earnings . See Republic Steel Corporation v N L R' B , 311 U. S 7
22 See May Department Store Company, etc v N L R B, 326 U S. 376; Matter of
Washington National Insurance Co., 64 N. L R. B 929 ; Matter of C D Beck & Company,
63 N. L. R. B 1426, Matter of Caroline Mills, Inc, 64 N. L R. B. 200.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATIONS
Upon the basis of the abo•ye findings of fact and conclusions of law the under-
signed recommends that uichmond Home Telephone Company, Richmond, In-
diana, its officers, agents., successors, and assigns shall :
1. Cease and desist frC,m :
(a) Discouraging rle/nbership in Indiana Telephone Workers Union, affiliated
with National Federation of Telephone Workers, or any other labor organization
of its employees, by discharging and refusing to reinstate any of its employees
or in any other manner discriminating in regard to their hire and tenure of em-
ployment or any condition of employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to -self-organization, to form labor organi-
zations, to join or assist Indiana Telephone Workers Union, affiliated with Na-
tional Federation of Telephone Woikers, of any other labor organization, to bar-
gain collectively through representatives of their own choosing, and to engage
in concerted activities for the purposes of collective bargaining or other mutual
aid or protection as guaranteed in Section 7 of the Act;
(c) Discharging or otherwisg discriminating against any of their employees
for giving testimony under the Act.
2 Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Offer Laura Stuck immediate and full reinstatement to her former or a
substantially equivalent position without prejudice to her seniority or other
rights and privileges ;
(b) Make whole Laura Stuck for any loss of pay she may have suffered by
reason of the respondent's discrimination against her, in the manner provided in
the section entitled "The remedy" ;
(c) Post at its exchange in Richmond, Indiana, copies of the notice attached
hereto marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director for the Eleventh Region, after being signed by the respondent's
representative, shall be posted by respondent immediately upon receipt thereof,
and maintained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said notices
are not altered, defaced, or covered by any other material ;
(d) Notify the Regional Director for the Eleventh Region, in writing, within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps have been taken to comply therewith.
It is further recommended that the complaint, insofar as it alleges a violation
of Section 8 (2) of the Act, and a discriminatory discharge of Ransom
Stigleman, be dismissed.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D. C., an original and four copies of a
a
^ durir
RICHMOND HOME TELEPHONE COMPANY 475
statement in writing, setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as-he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file a
copy with the Regional Director. As further provided in said Section 33, should
any party desire permission to argue orally before the Board, request therefor
must be made in writing to the Board within ten (10) days from the date of the
order transferring the case to the Board. Any party desiring to submit a brief
in support of the Intermediate Report shall do so within fifteen (15) days from
the date of the entry of the order transferring the case to the Board, by filing
with the Board an original and four copies thereof, and by immediately serving
a copy thereof upon each of the other parties and the Regional Director.
PETER F. WARD,
Dated May 29, 1946. Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act. we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our employees-
in the exercise of their right to self-organization, to form labor organizations,
to join or assist Indiana Telephone Workers Union, affiliated with National
Federation of Telephone Workers, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Laura Stuck
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization, and because any employee has given testimony under the Act.
RICHMOND HOME TELEPHONE, COMPANY,
Employer.
By ------------------------------------------
(Representative) (Title)
Dated --------------------
NoTE : Any of the above-named employees presently serving in the armed force
of the United States will be offered full reinstatement upon application in accord-
ance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced, or covered by any other material.