Satilla Rural Electric Membership Corp.

National Labor Relations Board - Board Decisions

Mar 10, 1965

151 N.L.R.B. 573 (N.L.R.B. 1965)

SATILLA RURAL ELECTRIC MEMBERSHIP CORP. 573
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.
Employees may communicate directly with the Board 's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago , Illinois,
Telephone No. 828-7572, if they have any questions concerning this notice or com-
pliance with its provisions.
Satilla Rural Electric Membership Corporation and Interna-
tional Brotherhood of Electrical Workers, AFL-CIO. Case
No. 10-CA-5569. March 10, 1965
DECISION AND ORDER
On December 10, 1964, Trial Examiner Laurence A. Knapp issued
his Decision in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety. The General Counsel thereupon filed exceptions
to the Trial Examiner's Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
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
Trial Examiner's Decision, the exceptions, the briefs, and the
entire record in this case, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts
as its Order the Order recommended by the Trial Examiner, and
orders that the complaint herein be, and it hereby is, dismissed
in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Following prehearing procedures in compliance with the Act,' this case came on for
hearing before Trial Examiner Laurence A. Knapp on July 7, 1964, at Waycross,
Georgia. During the hearing, Respondent moved to dismiss the complaint for failure
'Following a charge filed on December 16, 1963, by the labor organization named
in the caption , herein called the Union, the complaint issued on March 20, 1964, Re-
spondent answered on March 27 , 1964, and filed an amended answer on June 24, 1964.
151 NLRB No. 64.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of proof, a motion disposed of in accord with my ultimate findings, conclusions, and
recommendations as stated below. Briefs filed by counsel for Respondent and for
the General Counsel have been considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDING OF FACT
1. THE BUSINESS OF RESPONDENTS; THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find that Respondent, a Georgia
corporation engaged in the distribution of electrical energy to users in various counties
in the State of Georgia, received gross revenue in excess of $250,000, and purchased
and received supplies and materials valued in excess of $5,000 from outside the State
of Georgia, in the calendar year preceding issuance of the complaint. Respondent
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and
assertion of the Board's jurisdiction over Respondent will effectuate the policies of
the Act.2
II. THE UNFAIR LABOR PRACTICES
For about 2 years, or more, there existed on Respondent's staff a construction crew
composed of Norman Murphy, foreman, Johnny White, first-class lineman, Harry
T. Hezelden, apprentice lineman , James E. Miles, winch-truck or equipment operator,
and Hymric Carter, groundman.
This crew performed construction jobs on Respondent's electrical power distribu-
tion system, upon work orders issued by Construction Supervisor Solomon. In the
absence of Foreman Murphy, lineman White was in charge of the crew's performance
of jobs as defined in the corresponding work orders. Carter, as groundman, was a
helper to the other and more skilled members of the crew, engaged in work essentially
of a common labor type. He cannot read or write.
White and Hazelden were members (and White was financial secretary as well)
of the Union, which for a number of years had sought to organize and represent
Respondent's employees.3 Over the years White had solicited employees he worked
with to join the Union, and over a considerable number of months both he and
Hazelden, frequently together, had solicited Carter to sign up. Carter never stated
whether he would or would not join. Rather his customary response to these repeated
solicitations was to the effect that he would think or was thinking about it, had not
made up his mind, or would let them know later. Two of these solicitations took
place on November 8 and 11, 1963. The November 8 solicitation occurred while
the three employees were riding in a truck together to a job at the Hurst farm, and
the November 11 one while the crew was stopped en route to a job at the Lightsey
farm. In each instance, no one but the three employees was present or overheard
what transpired.
On November 22, Respondent discharged White and gave Hazelden a 20-day sus-
pension. The broad contention of counsel for the General Counsel, as particularized
at the hearing, is that Respondent discharged White and suspended Hazelden merely
because they solicited Carter to join the Union. Respondent's contention is that it
took this action because, as an incident of such a solicitation, White and Hazelden
threatened Carter with loss of his job if he did not join the Union. In its original
answer, dated March 27, 1964, Respondent alleged that this solicitation and threat
took place while the three were riding in a truck together on the morning of Novem-
ber 11 . In an amendment to its answer later filed, Respondent alleged November 8,
2 For prior instances of jurisdictional assertion over Respondent by the Board, see
129 NLRB 1084; and 137 NLRB 387, enfd. 322 F. 2d 251 (C.A. 5).
3 The Union began Its organizing efforts among Respondent's employees in the late
summer of 1959 Respondent interfered with this organizational effort by soliciting
employees to withdraw union application cards they had signed. See 129 NLRB 1084.
In February 1961, following a secret election won by the Union it was certified as the
bargaining representative of Respondent's employees, but Respondent failed and refused
to bargain in good faith with the Union, and on July 26, 1963, the Board's mid-1962
order requiring Respondent so to bargain was enforced by the court of appeals. See
137 NLRB 387; 322 F. 2d (C.A. 5). At the time of the events of this case-Novem-
ber 1963-and thereafter, Respondent and the Union were meeting in collective-bargaining
sessions not otherwise described in the record.
SATILLA RURAL ELECTRIC MEMBERSHIP CORP. 575
rather than November 11, as the date the three employees were riding together and
of the alleged threatening solicitation. In his brief, counsel for the General Counsel
contends on the evidence that the threat alleged never in fact was made, so that under
Board doctrine approved in N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21, Respond-
ent's action violated the Act-Section 8 (a) (1)-even if Respondent believed in good
faith that the asserted misconduct accompanied the solicitation. Counsel for the
General Counsel appears further to contend that whether or not the alleged threat
was made, Respondent did not discipline the two employees for this reason but,
instead, because of their solicitation activities.
The Evidence and Findings Thereon
Carter testified that while he, White, and Hazelden were riding in a truck to a job
at the Hurst farm on the morning of November 8,4 White and Hazelden talked at
length to him about joining the Union, and that in the process each of them told him
that if he did not sign with the Union the "Coop" (meaning Respondent) was going
to "run him off," i.e., as he understood this expression he would lose his job with
Respondent if he did not join. Carter further testified that in the next few days he
reported the incident to members of Respondent's supervisory force, including Forman
Murphy, Construction Supervisor Solomon, Operation Supervisor Vickers, and finally
General Manager Lanier, each of whom testified on Respondent's behalf. Murphy
testified that Carter gave him the same version of the incident as Caster testified to;
that he told Carter he could see Solomon (Murphy's immediate supervisor) if he
wished; and that at Carter's request he arranged for Carter to talk with Solomon.
Solomon testified that Murphy relayed to him the threat Carter had reported to
Murphy, that he agreed to see Carter, and that when the two met Carter was con-
cerned about his job and wanted to know if he was apt to lose it. Solomon further
testified that he told Carter that so long as he performed his work satisfactorily he
would not be run off his job, union or no union, but if Carter was not completely
satisfied with this advice Solomon would arrange for Carter to see General Manager
Lanier, a meeting which Solomon (apparently at Carter's request) then arranged and
which took place on November 15. Lanier, in turn, testified that Carter told him
that "the boys," meaning White and Hazelden, had been riding him pretty hard for
some time and on a recent date had told him he would lose his job unless he signed
with the Union .5 Operations Supervisor Vickers testified that midway in the period
of the above meetings, Carter approached him at Respondent's headquarters and
reported that White and Hazelden had tried to sign him up for the Union and had
told him if he did not do so the Company would run him off. Somewhat varying
but still substantially similar testimony was given by Carter's brother, T. L. Carter,
an independent businessman in Alma, Georgia.6
Lanier testified that after hearing Carter out, and after consulting Murphy,
Solomon, and Vickers, he reached the conclusion that Carter had told the truth
as to what has happened and decided to discharge White and suspend Hazelden. He
determined, he testified, to give Hazelden the lesser penalty (or conversely, the more
severe one to White) because of White's senior position and his belief that Hazelden
was acting under White's "encouragement." Lanier then convened a meeting held
at his office on Friday, November 22, attended by Lanier, Vickers, and two other
of Respondent's supervisors, and Thomas, president of the local union, Beecher, its
secretary, and Hazelden. (Lanier did not call White to this meeting because White
was on the sick list). At the November 22 meeting, Lanier stated the meeting had
been called because at noon on November 11, White and Hazelden had threatened
Carter with loss of his job if he did not join the Union. Lanier then asked Hazelden
4 The crew was assigned to two jobs on November 8, at the Hurst and Harrell farms.
This day is described in the record by reference to either of these farm names.
s Lanier indicated that this was his paraphrase of the expression " the Company would
run [Carter] off" as used by Carter.
9 T. L. Carter testified that about mid-November he noticed that his brother appeared
to be under some strain, that he inquired what was wrong, and was told by brother
Hymric that White and Hazelden (who he said were after him all the time to join)
told him that if he did not join the Union they would "run him off" when the Company
"went Union." T. L. Carter further testified that he advsied his brother to take the
matter up with his boss.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if he had anything to say. Hazelden stated that he could not remember the November
11 date (meaning, I gather, where the crew had worked and what had happened
on that day), but that he had never made any threat to any employee. With little
or nothing more said, Lanier announced the suspension of Hazelden and the dis-
charge of White.
White's discharge was communicated to him that day by Thomas, the local's
president, and confirmed by a letter White received from Respondent on November 23.
On the following Monday, November 25, Solomon delivered part of White's pay
to White at his home, gave White a form of release, which White signed, entitling
White to withdraw certain retirement funds, and told White to call at the office the
next day when the remaining payments due would be ready. When White thus
appeared, he met with Lanier, an assistant to Lanier, and Solomon. Lanier repeated
the charge as he had stated it at the November 22 meeting, and asked White if he
wished to make a statement. White stated that the charge was false and he was
denying it. Lanier responded that this was what he expected White to say and added
that Carter had been an employee for 17 years and expressed in rhetorical form his
preference for Carter's word over that of White. White took his checks and left.
At the request of Robinson, the Union's international representative (then engaged
in bargaining negotiations with Respondent), a "reconsideration" meeting was held
on November 27 in Lanier's office.? Robinson asked Lanier why White and Hazelden
had been disciplined, whereupon Lanier, reading from a pad, stated that at the noon
hour on November 11, White and Hazelden had threatened Carter with loss of his
job if he did not join the Union. Lanier then gave White an opportunity to make
a statement, who again denied the charges. In the course of the meeting, something
was said by White, Hazelden, or Miles to the effect that on November 11 the crew was
working on a job at the Hurst "place." At the end of this meeting, obviously quite
brief, Robinson asked Lanier to reconsider his decision and Lanier stated that were
he to change it, which he did not, he would so advise the union group within the
next few days.
What took place at the above-described meetings of November 22, 26, and 27 is
undisputed. But White and Hazelden, while admitting their solicitation of Carter
in the truck on November 8, denied that they made at that or any other time any
threat of the character attributed to them by Carter. On the contrary, Hazelden
testified that on this occasion he told Carter that if he did not want to join he did not
have to, and as to the occasion of the November 11 solicitation White testified (with
confirming testimony by Hazelden) that he told Carter if "you want to join it will
be of your own free will .... There can't nobody force you" to join the Union.
There is thus before me a pure issue of credibility, i.e., whether to believe Carter on
the one hand, or White and Hazelden on the other.
Counsel for the General Counsel contends that the alleged threats were never
in fact made. This contention necessarily represents a frontal assault upon the
credibility of Carter but it could be advanced without attacking the credibility of
Lanier if counsel were to credit Lanier with a good faith but misguided belief that
Carter's charges were true. But counsel advances the further contention that in
imposing its disciplinary action against White and Hazelden, Respondent was specifi-
cally motivated to do so because of their solicitation activities on behalf of the
Union. In short, counsel contends not only that Carter's charges were false but,
in addition, that Respondent merely seized upon them as a happenstance convenient
for an antiunion move.8
On the question of Carter's credibility, his testimony that White and Hazelden
did make the threats concerning his job was in no way shaken at the hearing, and
his appearance and manner of testifying at the hearing gave rise to no misgivings
on my part concerning his credibility. Similarly, counsel for the General Counsel
adduced no evidence which affords any reason to doubt the testimony of Murphy,
Solomon, Vickers, and Carter's brother that Carter did, in the immediately follow-
ing days, report the alleged threats, with manifestations of his serious concern,
successively and separately to them. Such contemporaneous conduct normally weighs
7 Present for Respondent were Lanier, Solomon, Murphy, Vickers and a staff assist-
ant to Lanier. For the Union were Robinson, Thomas, the local union president, White,
Hazelden, and winch-operator Miles.
8It is not clear from counsel's brief whether it is his view that Respondent knew
that Carter's charges were false, or was merely indifferent to their truth or falsity, when
it took its disciplinary action.
SATILLA RURAL ELECTRIC MEMBERSHIP CORP. 577
on the side of the actor's credibility, and there is nothing in this record having any
rational tendency to suggest that Carter had conceived of a plot against White and
Hazelden and was acting it out in taking the steps he did.9 Indeed, in the absence
of any such indication, what Carter did seems quite in line with normal human
probabilities, given Carter's long service with Respondent, his unskilled position, and
his awareness of his limited qualifications, in education and talent, for employment
elsewhere were he to lose his position with Respondent. In these circumstances,
Carter's actions would seem quite the natural cause for one grown fearful, for some
reason, concerning his tenure, and fear, in turn, implies the existence of a threat.
The only threat to Carter's job security apparent on this record is the one he testified
to.
Counsel for the General Counsel, however, advances an indirect attack on Carter's
credibility on the basis of asserted discrepancies between his testimony at the hear-
ing and earlier statements of his relative to the date or place of the alleged threats.
It is difficult to perceive how any post-November statements by Carter inconsistent
with what he first told Lanier as to the date could serve to establish Lanier's knowl-
edge, in November, that Carter's then reports were false, as counsel also appears to
contend. However that may be, the record does not sustain counsel's assertion that
Carter made any flat statement in November that November 11 was the date of the
threats.
At the hearing, as had been stated, Carter testified that the threats were made
while the threesome were riding to work on the morning of November 8 (en route
to the Hurst and Harrell farm jobs performed that day.) Counsel for the General
Counsel then points to certain of Carter's and Lanier's testimony which, taken alone,
indicates that Carter told Lanier on November 15 that the threats were made on
November 11 (the day the crew was assigned to the Lightsey farm jobs). But there
is testimony by Carter and Lanier of contrary import which, taken with other
circumstances, throws in great doubt whether Carter made any such flat statement
to Lanier on November 15.10 Considering all the testimony on this subject, its
preponderance indicates, and I find, that the November 11 date was one which Lanier
arrived at, not on the basis of a date asserted by Carter, but by reference to the work
area to which Carter thought the crew went on the day in question and a subsequent
check by Lanier concerning the jobs performed in that area. By this process, Lanier
concluded that the job involved appeared to be the Lightsey one, which Respondent's
records showed was performed on November 11.11
In the circumstances, Lanier could not have believed, to the point of unshakable
conviction, that November 11, or the day of the Lightsey job, whichever way he
approached the matter, was the date of the threats when he specified it to the employ-
ees and union representatives in the November meetings.12 In any case, according
0 Carter testified that he did not wish to join the Union and it is also apparent that
he resented White's and Hazelden 's oft-repeated solicitations . But Carter could feel
as he did in these respects without it following that he would in consequence concoct
a plot to do White and Hazelden in.
10 While Carter and Lanier appear to have given contradictory testimony as to what,
if anything, Carter said to Lanier in November as to the date of, or the job Carter asso-
ciated with, the threats, this matter was not pursued with persistence and clarity.
Whether or not more intensive questioning would have put matters at least in sharper
focus, on the record I have the apparent discrepancies appear to me to represent nothing
more than the uncertainties of recollection which plainly overshadowed all of the corre-
sponding testimony of Carter and Lanier.
11 The assertion of counsel for the General Counsel that Carter's pretrial affidavit
to a Board investigator-given in mid-January-associates the threats with the Light-
sey job of November 11 is not justified. The "that morning" phrase counsel refers to
does not necessarily refer to the Lightsey job mentioned in the immediately preceding
sentences, in which, indeed, Carter disclaimed that the threats were made while the
crew were at the Lightsey farm. Considering Carter's entire statement, its fairer in-
terpretation is that nowhere in it was Carter attempting to fix the date of the incident
but rather was able to recall only that it took place en route to the field on a day un-
certain to him,
121n this connection, it is likely, as Lanier testified, that at this stage he was more
concerned with determining whether the threats had been made than with establishing
with exactitude their date and locale.
783-133-66-vol. 151-38
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to him, statements made by either White or Hazelden at the November 27 meeting,
to the effect (mistakenly as it later turned out) that the crew was at the Hurst, and
not the Lightsey, farm on November 11, and that they had solicited Carter on both
occasions, lurked in his mind thereafter. Because of the possibility of an error as
to the exact date, Lanier testified (the first scheduled hearing date was then in the
offing), sometime about early or mid-April, he had Carter accompany him on a trip
to all jobs performed in the approximate period involved.13 During this tour of
various jobs, Carter definitely associated the threats with the Hurst job and (on this
trip or one Carter made alone a day or so before) definitely rejected the Lightsey
job (meaning that day) as when they were made. In due course thereafter (with
some delay on account of the illness of Lanier, who verified Respondent's ensuing
amended answer), Respondent amended its answer so as merely to change the date
from November 11 to November 8.
I find nothing deeply suspicious or irregular in this course of events and reject
the contention of counsel for the General Counsel that Lanier went through these
steps as "a desperation move" to maintain a defense it knew would not otherwise
withstand scrutiny at trial. On the contrary, I am satisfied on the entire record,
and find that: While Lanier was satisfied in November that the threats had been
made he was not so certain as to the associated work assignment and the correspond-
ing date; prompted by various indications (including White's or Hazelden's references
to November 11 as the day of the Hurst job, and Carter's uncertainties in this
regard), Lanier later set out to make more certain on the date question; and his
actions in this regard were not designed to concoct or buttress a sham defense but
were steps carried out in good faith to clear the air on the date question. I further
find, on all the evidence, that White and Hazelden did on November 8 make the
threats Carter attributed to them.
The other main contention of counsel for the General Counsel is that Respondent,
in fact, took its disciplinary action "to curtail union activities among its employees."
As his main evidentiary basis, counsel refers to Lanier's testimony that he was not
prounion, and to his further and quite questionable testimony that he was not aware
in November of White's union membership.14 While the latter statement gives rise
to some disquietude, it is insufficient, on the entire record of this case, to reject all
of Lanier's (and all of Carter's testimony or otherwise to warrant a finding of dis-
criminatory motivation.
Finally, counsel for the General Counsel contends that Respondent's November
investigations of Carter's claims were inadequate and appears to advance this asser-
tion in support of both his major contentions. It is, of course, true that Respondent's
procedure would have been fairer had it included giving White and Hazelden an
opportunity to be heard before Lanier reached his initial conclusion to credit Carter.
But Respondent did give them hearings of a sort and on these occasions White and
Hazelden could offer only bare denials. Perhaps this is all that could be expected
of them, with the matter essentially Carter's word against theirs, as the hearing
itself demonstrated. But non constat that if they had had anything more to offer in
contradiction of Carter, Lanier would nevertheless have been adamant in adhering
to his initial conclusion as to where the truth lay. Considering all aspects of Respond-
ent's initial and later investigations, what emerges falls far short of the telling
significance counsel attaches to this matter. I find that Respondent discharged White
and suspended Carter because they made to Carter the threats he testified to, and
not because of their solicitation of him or their other union activities.ls
RECOMMENDED ORDER
It is accordingly recommended that the complaint herein be dismissed in its
entirety.
13 Lanier testified that he made this type of check because Carter responded not to
dates but to visual site reactions as a way of pinning the matter down.
14 Lanier's denial of this knowledge is difficult to reconcile with his professed knowledge
that White and Hazelden had been actively soliciting Carter for several months.
is Although counsel for the General Counsel lays no particular stress on the matter
in his brief, in reaching the above fact conclusions I have taken into account Respond-
ent's previous violations of the Act referred to, supra, footnote 3. But while those
violations were serious ones, I do not think I can ascribe to them that overriding
significance which, in the circumstances of this case, would need to be accorded them
to warrant finding Respondent again in violation.