Southwestern Bell Telephone Co.

National Labor Relations Board - Board Decisions

Nov 21, 1978

239 N.L.R.B. 419 (N.L.R.B. 1978)

SOUTHWESTERN BELL TELEPHONE COMPANY
Southwestern Bell Telephone Company and Jose M.
Delgado. Case 23-CA-6546
November 21, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY. AND TRUESDALE
On August 2, 1978, Administrative Law Judge El-
bert D. Gadsden issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Southwestern Bell Tele-
phone, Brownsville, Texas, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 186 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN. Administrative Law Judge: Upon
unfair labor practice charges filed on June 2, 1977, by Jose
M. Delgado, an individual, the Charging Party herein,
against Southwestern Bell Telephone Company, herein
called Respondent, a complaint was issued by the Regional
Director for Region 23, on behalf of counsel for the Gener-
al Counsel, on July 29, 1977. In substance, the complaint
alleges that Respondent has refused to reinstate Jose M.
Delgado to his former or a substantially equivalent posi-
tion of employment, because of Delgado's activities on be-
half of the Union and his having engaged in other protect-
ed concerted activities, in violation of Section 8(a)(3) and
(1) of the Act.
Respondent filed an answer denying that it has engaged
in any unfair labor practices as alleged in the complaint.
The hearing in the above matter was held before me in
Brownsville, Texas, on November 17, 1977. Briefs have
been received from counsel for the General Counsel and
counsel for Respondent, respectively, which have been
carefully considered.
Upon the entire record in this case and from my obser-
vation of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is now, and has been at all times material
herein, a corporation duly organized under the laws of the
State of Missouri. Respondent maintains its principal of-
fice at St. Louis, Missouri, and is engaged in the business
of transmitting and receiving telephone messages in and
among the several States in the southwestern portion of the
United States, including the State of Texas. Only Respon-
dent's facilities and operations in the greater Brownsville,
Texas, area are involved in this proceeding.
In the course and conduct of its business during the past
12 months, which period is representative of all times mate-
rial herein, Respondent received revenues in excess of
$100,000 for the performance of its communication ser-
vices herein above described.
The complaint alleges, Respondent admits, and I find
that Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find
that Communications Workers of America, Local 12229.
is, and has been at all times material herein, a labor organi-
zation within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Southwestern Bell Telephone Company, Respondent
herein, is a corporation engaged in the business of trans-
mitting telephone messages in and among several States in
the southwestern portion of the United States, including
the State of Texas. The Charging Party, Jose M. Delgado,
was first employed by Respondent at its Milwaukee, Wis-
consin, facility on November 17, 1971. In April 1973, Del-
gado moved to Brownsville and was employed by Respon-
dent's facility there. He became union steward in the
summer of 1973 and remained in that capacity until March
16, 1977.
As union steward, Delgado's responsibility was to police
the contract with respect to employees' safety and the reso-
lution of employees' problems and complaints. In his stew-
419
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ard capacity, Delgado processed a considerable number of
employee grievances. As a result of an acute personal (fam-
ily) problem in the spring of 1977, Delgado requested a
leave of absence which Respondent declined to grant.
Thereafter, Delgado tried to transfer to Respondent's Ok-
lahoma City facility but was advised there were no posi-
tions available at that time. Since he was unsuccessful in
obtaining a transfer, Delgado tendered his resignation to
Respondent on May 13, 1977, returned to Oklahoma City,
and applied for employment at Respondent's facility there.
When he did not succeed in obtaining employment, Delga-
do called Respondent's Brownsville facility a few days
later and requested reinstatement to his position, but Re-
spondent advised that it could not rehire him. Delgado
contends that Respondent's refusal to reinstate him to his
former position is based upon his union activity as steward,
in violation of Section 8(a)(3) and (1) of the Act.
The primary issue presented by the pleadings and evi-
dence for determination in this proceeding is whether Re-
spondent's refusal to reinstate Jose M. Delgado to his most
recent position is based upon good cause, economic con-
siderations, or upon Delgado's union activity as steward in
violation of the Act.
B. Delgado's Activities as Union Steward
Jose Al. Delgado testified that as union steward he talked
to supervisors about employees' problems and complaints
almost daily but for sure, at least twice a week. He said he
processed the grievance against discriminatory assignments
of overtime. In this particular instance, it was established
that one employee had 108 hours of overtime and the low-
est number of overtime hours by an employee was 8 hours.
He met with management (Mr. Nations and M. A. Cog-
gin) who, in October 1975, agreed that overtime should be
equally distributed and assured by posting it, so that all
workers could see who was being assigned. He attended
other grievance meetings in San Antonio and another
grievance meeting concerning contractors doing craft
work. Delgado said nothing ever came of many of those
grievances, but at least he fought for them.
When Delgado was asked was he ever reprimanded by
Respondent, he said that the day following his meeting
with management on the grievance against discriminatory
overtime, the following transpired:
Mr. Coggins [sic] had come out and was waiting for
us, and I was by my truck, drinking a cup of coffee,
because we had been told not to go to coffee, so I took
my coffee break at the jobsite.
Anyway, that day Mr. Coggins [sic] walked up to
me, and he was mad. He told me, so, you shook your
finger, huh?
I said, well, what are you talking about?
He said, you're boasting to all the people that you
won that grievance. Don't you know that I know that
every-don't you know that I know about everything
that goes on at the garage?
I said, wow, I thought I was just talking to people,
you know, that I thought I could talk to. Evidently,
one of them went and told him about it. So he was
mad.
I wasn't boasting. What I was doing, I was telling
the people what had happened and how we came out
ahead. And everybody was satisfied with it.
Delgado further testified that when he assumed employ-
ment at Respondent's Brownsville facility he had 2 years'
experience as a splicer and was the most experienced and
senior man on his crew, except for Wayne Spofford, a sup-
ervisor. Delgado's testimony in this regard is corroborated
by the testimony of fellow employees James Thurwalker
and Yvonne Thurwalker. Delgado said his supervisor,
Mike Kennedy, kept telling him, "You do not work for the
Union. You work for the Company" (Respondent).'
Fellow employee James Thurwalker testified as follows:
Q. (By Ms. Small) Would you state for the Court
your opinion of Joe's work, based upon your work
with him.
A. I worked in association with Joe for the three
years I came down here. And Joe was the-came here
from Wisconsin, and he was one of the only splicers
with any service or experience that knew his job. He
knew his job well. He knew the BSP, which is our
standards, well. And he performed his duties and re-
sponsibilities in accordance with those BSP's. And I
worked in association with him, as he was a splicer
and I was a lineman. And he and I would be doing
splicing work or recon work, which is reconcentration
of buried drops into the pedestals that Joe worked in.
So I was exposed to his work at times, and generally a
great deal of the time. And I was exposed to him as a
person and as an employee at Southwestern Bell, 604
Galveston Road.
Q. Would you state for the Court what if anything
you know about his Union activities.
A. Yes. I came here in 1973, in January, and shortly
thereafter met Joe. And Joe was the Union representa-
tive for our garage ....
* * . * t
Q. Was he the only steward in the garage at that
time?
A. Yes, he was. He was constantly exposed to our
union needs, our employee needs. And he was exposed
to solving these problems that arose with our new em-
ployees. We had several employees.
Not many employees that are splicing now have
over three to four years' experience. I would imagine
most have less that [sic] two years' experience. They're
exposed to the system for the first time, the Bell Sys-
tem for the first time, and they need some supervision
as far as Company/employee-type relations. And Joe
tI credit Jose Delgado's testimonial account of his active and aggressive
processing of employee grievances as steward for the Urnon: that Supervis-
or Coggin accused him of boasting about having won the grevance on the
issue of discriminatory assignment of overtime work; and that Supervisor
Kennedy frequently told him that he (Delgado) did not work for the Union,
he (Delgado) worked for the Company (Respondent). I credit Delgado's
testimony because not only is it uncontroverted, but also it is essentially
corroborated by the testimony of fellow employees James and Yvonne
Thurwalker, infra, as well as by some of the other credited evidence of
record.
420
SOUTHWESTERN BELL TELEPHONE COMPANY
was the employee representative for the Union, and he
was constantly trying to better our situation and com-
ply with our safety standards and with our needs, as
far as doing our job, our Bell System tools and what
have you, that we needed to do our jobs or our job
assignments.
And, naturally, because he was representing at the
end thirty-five people, his face was seen much more
than anybody else in the garage. And the tendency,
the general mood of management that I felt .
Q. (By Ms. Small) What has your experience been
as far as Company reaction to union activities?
A. I was involved as a Union steward at the begin-
ning of Yvonne Thurwalker's grievance. I consulted
Joe as the Union steward, and we-we started this
thing together. I consulted Joe, and we both filed-
went to the Union president and decided to file a
grievance against the action that was taken against
Bonnie Thurwalker.
A. The Company seemed to retaliate in that we
were given extra heavy workloads to do, as well as
there was a general sentiment against us, in that Bon-
nie, after her grievance was completed, had to file a
harassment grievance because she won that grievance.
And Joe seemed to be set aside. He was pointed out
as a Union official, or a Union steward ....
S · *
Q. (By Ms. Small) Can you give me some specific
instances in which you feel, in your own opinion, that
Joe was watched?
A. Yes. Joe was followed from the storeroom on
several occasions by his supervisor to make sure that
he was going to his first jobsite. And that was why he
was discovered in the coffee shop, because he was fol-
lowed directly from the storeroom. No other employ-
ees were followed directly from the storeroom, to my
knowledge.
On cross-examination, Thurwalker said that every time a
grievance was filed the filing person would be assigned to a
heavy workload. He also said that he and other employees
saw Mike Kennedy follow Delgado and other employees in
a company truck from the storeroom; and that he has nev-
er been suspended, reprimanded, or warned about being
observed in a coffee shop.
Yvonne Thurwalker was employed by Respondent on
December 19, 1974, as a line person, placing cables, climb-
ing posts, removing poles, and performing some splicing
and recon work. She may also have been handling mate-
rials inside. She worked until August 1, 1977, when she
went on maternity leave for the second time. She testified
that she was worked with Delgado for several years and
when she learned she was pregnant on the first occasion,
she told her supervisor, Richard Vela, who advised her that
she would have to take a leave of absence. Yvonne Thur-
walker further testified as follows:
Q. How were you forced to take that leave?
A. I was told by my supervisor that -Richard Vela
at that time-that I had two alternatives: I could
either take my leave of absence voluntarily, and ev-
erything would be all right, or they were going to have
to write up the leave of absence for me, force it upon
me, and then I would run into complications as far as
getting-you know, I'd have a lot of trouble with the
company.
And I said, either way you're going to-I'm going to
have to take it. Right?
And he said, yes.
I said, you go ahead and do it.
They forced my leave of absence. We fought it
through the Union, and I got my backpay.
* . * * *
Q. So if you believe that you had a leave of absence
forced upon you, would it be your position then that
in your pregnant condition you would still be able to
climb poles and do the rest of your job duties?
A. No. I had a doctor's statement saying that I was
not capable of climbing poles or doing heavy lifting.
Any other thing would be to my benefit. You know,
any other job.
Q. All right.
Could this have affected, then, the kind of work as-
signments that you got?
A. We weren't doing much pole climbing at that
time. I was-I was, and had been for the past five
months prior to my leave of absence, inspecting con-
tractors, watching and making sure they do the job
correctly, and placing a conduit line, which I could
have handled, yes, all through the nine months.
Q. But this would have affected the type of job as-
signments you received previously. Is that true?
A. No. Not where I was then?
JUDGtE GADSDEN At that time you could have per-
formed all of the work that was assigned to you-at
that particular time.
THE WITNESS Yes, your Honor.
Yvonne Thurwalker said that she consulted steward Del-
gado who advised her of the Union's position, and she then
filed a grievance because she was forced to take a leave of
absence from May 1975 through January 1976. She said
she was advised by management that she could stay until
certain contractors who were doing conduit work had com-
pleted their jobs, but Mr. Coggin kept asking her how soon
was she going on leave. This went on for 3 months and
when Delgado resigned as steward in March 1977, she be-
came steward, and then the following started:
THE WITNESS: When I would address Mike Kennedy
to ask a question he would fall back and ask what I
was going to bitch about.
Or when I would ask him or address him, you
know-what now? What did I do?
Q. (By Ms. Small) How many women were there in
the crew?
421
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Two.
Q. What action, if any, did the Company take in
relationship to you after you filed your grievance over
your pregnancy leave?
A. We were four people on the crew. There was two
line trucks, one a bucket, and the other one the corner
mount, which does the digging and the placing of the
poles and stuff like this. It was the policy, and we were
to where I was with the senior man, and I had the least
experience. And then we had-we were split up, a
male and a female. The male with the higher experi-
ence and then the female with the least experience.
We were then split up. Us two girls took the corner
mount, which is the heavy truck doing the placing of
the poles, removing poles and things like that. The two
senior men were placed in the bucket truck with the
power steering, and things like this.
Yvonne Thurwalker said that she was forced to take her
present leave of absence for pregnancy in August 1977, but
that she signed the papers herself (Respondent did not sign
them for her); her supervisor, Mike Kennedy, threatened
to ruin her record by telling her that she was not doing her
job, that she sat on her "ass" and did nothing, and found
any excuse to avoid doing her job. She said that at that
time she was pumping water out of a manhole with her
partner, Judy Warren, who was also pregnant; but Warren
got sick. She said that she called Kennedy and advised him
of Warren's illness; and that he said he was going to send
someone for Judy Warren and asked her could she handle
the job by herself. Yvonne Thurwalker continued to testify
as follows:
I got-I finished the job. There was one manhole I
couldn't find, which was the last one I was to pump.
There was a big distance-I felt that that one I first
saw was too far distant. I jumped into the truck, and I
was looking at the print, to look on there what the
footage was on the manholes.
At that time Richard Vela and Ron Ticer went by
and saw me in the truck, and then I proceeded to
pump the manhole.
When I got back to the storeroom he said I was
sitting on the job. There was nothing-the machines
weren't going or anything, I was just sitting there, not
doing anything, I had a big mouth, and I didn't do my
job, I found any excuse not to do the job.
And I asked him why it wasn't on my record. And
he said, it will be now.
Eduardo P. Garcia, employed with the Respondent 27
years and presently an installer and chief steward, undis-
2 Essentially, I credit James Thurwalker's testimony with respect to
Delgado's work competence, his aggressive steward (union) activities, and
Respondent's manifested retaliation or antiunion attitude towards its em-
ployees, including Delgado, after said employees had filed or processed
gnevances. I also credit the testimonial account of Yvonne Thurwalker to
the effect that Respondent (Supervisor Kennedy) manifested acts of reprisal
against employees (Yvonne Thurwalker) for filing and/or processing griev-
ances against Respondent or for engaging in protected concerted activity. I
credit the testimony of both witnesses because their accounts are virtually
uncontroverted and the) are consistent. each with the other and with
Delgado's credited testimony.
putedly and credibly testified that about 35 percent of the
grievances are handled informally.
Based upon the foregoing credited testimony and all of
the credited evidence of record, I thereupon conclude and
find that from April 1973 until March 16, 1976, union
steward Jose Delgado was a very active and aggressive
grievance processor for himself and for 30 to 35 other ga-
rage employees of the Respondent; that Delgado was so
active and vocal in said activity, that on one occasion Sup-
ervisor M. A. Coggin accused him of boasting about his
victory on a grievance against discriminatory assignment
of overtime work; and that on several occasions, Supervis-
or Mike Kennedy told Delgado he did not work for the
Union, he worked for the Company (Respondent).
C. Delgado's Problem With Coffee Breaks and Disciplinary
Actions Imposed by Respondent
Delgado further testified that they reported to work at
7:30 a.m., and that Respondent did not have a rigid rule
about coffee breaks except that they could go to coffee
without their trucks I hour after lunch and 1 hour before
the end of the workday. He further testified as follows:
In May of 1976 I was observed at a coffee shop on
my way to Port Isabel, Texas, with another employee,
Antonio Morado.
And when I came back in, my boss, Mike Kennedy,
was waiting for me, and he asked me about it. I told
him.
He said, O.K. You know I got to suspend you. I'm
going to.
I says, for how long?
He said, thirty-one and three-quarter hours.
And I got a little upset. I said, thirty-one and three
quarter hours for staying over five minutes at the cof-
fee shop?
Thirty-one and three-quarter hours. That's what it
is.
I said, O.K. Man! I handed in my keys and I went
home for a whole week ....
Q. What happened ....
A ..... almost.
Q. What happened shortly after that?
A. Shortly after that, ma'am, there was a bunch of
people caught in ... at a. . . at a shift, and. . . no.
They were caught at at a coffee shop, and nothing
came of it-no. They came to see me because they
were getting docked forty-five minutes.
And I asked Mike. I said, Mike, come here. Let me
talk to you for a minute.
Q. Who is Mike?
A. Mike Kennedy.
Q. And who was he?
A. He was my supervisor.
I said, Mike, don't you think that-you know, here
you are, you send me home for thirty-one and three-
quarter hours, man, for going to coffee, and you dock
these people three-quarters of an hour. Don't you
think something is wrong here?
And he said, well, Joe, they're just lucky, that's all.
422
SOUTHWESTERN BELL TELEPHONE COMPANY
With respect to Delgado's violating the coffee break rule,
Mike Kennedy, formerly a union steward but now a con-
struction foreman, testified that while on his way to Port
Isabel to see about a job in 1976, he passed a cafe and saw
a splicing tiuck there. He parked and discovered Delgado
drinking a cup of coffee and reading a paper. Kennedy
continued to testify as follows:
So I sat down, and I think I had a cup of coffee with
Joe, and I said, Joe, you know, we are going to have to
stop this. You are going to have to quit this. This is
every day or every week, I'm-you know-catching
you in here, or I'm walking in here, and here you sit.
You know. And I said, what's it going to take? What
do I have to do, you know, to get your attention on
this?
He said, well, I don't know.
So I said, well, O.K. I said, you go on and go to
work, you know. So he left and went to work. And I
went on about my business.
On the next day, May 9 or 10, 1976, he came back to the
office and one of his supervisors told him that he had ob-
served Delgado in the same cafe a few minutes after he left
the storeroom. When he (Kennedy) asked Delgado about
it, Delgado denied he was in the coffee shop. But after he
told Delgado that he was observed by two supervisors and
asked him to tell the truth, Delgado then said, "O.K.," he
was there. Kennedy said that he told Delgado this is going
to have to stop, that he had gone along with him, and that
he had refused to put this in writing because he (Delgado)
had problems and that he wanted him to get his mind clear
and his problem solved, so he could get his mind on his
work. Delgado, said, "Well, O.K." However, 2 days later,
while on his way to Port Isabel, Kennedy observed a splic-
ing truck at this cafe around 7:45 a.m. or 8 o'clock. When
he investigated he was shocked because there was Delgado.
He asked Delgado what did he have to do and Delgado
said he did not know, because he (Kennedy) was the boss.
Kennedy said that he told Delgado he would forget about
this incident and that he was not going to put it in writing,
but he said that if it happened again, he was going to take
disciplinary action.
However, Kennedy said that he later discussed the mat-
ter with supervisors in the office and came to the conclu-
sion that he should suspend Delgado, which he did the next
day, from Tuesday morning until Monday morning. Del-
gado said, "That's 4 days, Mike." And he said, "Yes it is,
that's what it's going to take to get your attention." Kenne-
dy admitted that Delgado was not the only one to abuse
coffee relief; and that he imagined everyone at some time
or another abused the rule, including himself when he was
an employee, for which he got reprimanded. Kennedy said
that although the Company provided a coffee period for its
employees, he would observe Delgado having that coffee
period and then going straight to another coffee shop. He
acknowledged that he did not give Delgado written warnings
because Delgado got along well with people and he was hav-
ing some serious family problems and that he (Kennedy)
wanted to help him. He was trying to win Delgado's confi-
dence, and if he had given him warnings he would have
destroyed that opportunity.
Delgado said that when Supervisor Richard Vela saw
him in the coffee shop on May 10, 1976, at 8:15 a.m., he
was not in violation of the relief rule because, on some
occasions, the 1 hour had elapsed or they had already been
to their first work location. He denied that Mike Kennedy
saw him in the coffee shop on May 11, 1976, at 7:45 a.m.
but instead at 8:30 a.m. or 8:45 or closer to 9 a.m. Delgado
said that he was suspended Tuesday through Fnday (37
hours) in May 1976, and he did not file a grievance for the
suspension. He admitted that he was caught on a subse-
quent occasion, was suspended pending termination, and
that after Mr. Coggin, Kennedy, and union officials met,
Coggin decided not to terminate him but to give him an-
other chance.
Andrew Besa has been employed by Respondent for 10
years and is presently a switchman and chief steward for
inside plant. He seas also a past president of the Union
until March 1977. He undisputedly testified, and I credit
his testimony, that the types of employee violations for
which Respondent imposed disciplinary action were for re-
petitive tardiness, repetitive absences, not reporting to the
supervisor that an employee was going to be out, or re-
maining out without notifying the supervisor. He said Re-
spondent determines the severity of the disciplinary action
to be imposed by the number of offenses and the severity
of the offense; such as, stealing would probably be dealt
with severely, as compared with too long a coffee break,
which would probably be the lowest severity. From his ex-
perience, the longest suspension imposed for a minor of-
fense would be a day or two. In one instance, he said, an
employee was late I hour and suspended for I day-for the
remainder of the day, or 7 hours, something like that. In
another instance, an employee was given a I-day suspen-
sion for drinking on the job.
M. A. Coggin, engineering construction supervisor for
Respondent, testified that he is the second level supervisor
and that the first level supervisors are Harry Irby, Ron
Ticer, and Mike Kennedy, all of whom report to him. He
acknowledged that he issued and signed the reprimands
dated October 13, 1975 (Resp. Exh. 7), to Delgado for eat-
ing a taco and reading the newspaper of the job. The long-
est suspension in which he was ever involved was 36 to 40
hours, for an employee's refusing to carry out an order. He
acknowledged that on one occasion seven men were sus-
pended for 8 hours for drinking on the job, but that that
was the only incident of such drinking by those employees;
and that the length of all suspensions may very well be
related to the needs of the job; that is, the availability of
skilled men to perform the job after a suspension, the time
within which the job must be completed, and the work
volume and work schedules of the Respondent.
Coggin said no persons were hired after Delgado's resig-
nation and that all changes in positions were accomplished
by the transfer of employees from within.
D. How Respondent Dealt With Other Union Stewards
Richard Taoner has been employed by Respondent since
1957, and has served as president of the Local. He testified
as follows:
423
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Now, as Union president what has your experi-
ence been as far as Company and Union cooperation
in the Valley?
A. It's been hostile.
Q. Would you please specify so that we can get the
facts upon which you base that conclusion?
A. Like Joe, as far as being suspended for thirty-
one and a half hours as a job steward for coffee break,
that's excessive. Most people don't, unless they are a
job steward, get suspended for that amount of time.
Q. Can you give me some specific instances in
which they were not suspended for that amount of
time.
A. Yes. Mr. Coggins [sic], two weeks ago, caught
two people the same way, and they were not suspend-
ed at all.
In McAllen a few months ago I had two men sus-
pended for one day, drinking coffee. I went in to the
Company, and they agreed to pay them.
Very seldom do we get suspensions on coffee.
Tarver said that he had another steward who was sus-
pended three times and the Union had to have her resign in
order to keep her out of trouble. One Mary Lou Rodrigues
had to go in her personnel files because she was being
harassed for being a union officer in Brownsville over re-
ceiving calls from union members or going to grievance
meetings. Mr. Coggin would not allow travel to steward
Bonnie Thurwalker to go to grievance meetings in San An-
tonio. He (Tarver) had to call Coggin and quote the con-
tract to him and then he (Coggin) said, "Oh, it was a mis-
take." Tarver said that the coffee break policy has always
permitted an employee to get coffee if he was on his way to
a job where coffee could not be purchased. He continued
to testify as follows:
Q. O.K. Now, when you say their attitude toward
some of your officers, can you give us some specific
examples that-
A. Well, Bonnie Thurwalker took over after Joe.
She provided me information to file some sixty some-
odd formal grievances out of Brownsville on contrac-
tors doing contract work. I sent my executive vice
president, Dennis Dobbs, and Mary Lou Rodriguez,
vice president, in to meet with Mr. Kennedy to get
information. And they refused to give us any informa-
tion of why the contractors was doing the work.3
Based upon the foregoing testimony of the several wit-
nesses, which is essentially consistent and uncontraverted,
I hereby conclude and find that Jose Delgado was given a
disciplinary warning on October 13, 1975, for eating a taco
and reading a newspaper on the job; that just about all of
Respondent's employees have, on occasion, violated the
1 credit Richard Tarver's account of how Respondent's supervisors gave
active union stewards, including Delgado, a difficult time by imposing se-
vere disciplinary measures upon them for simple violations of company
rules, or by harassing them and failing to cooperate by giving them request-
ed information for processing grievances. Tarver's testimony is credited not
only because it is uncontraverted, but also because I was persuaded by his
demeanor that he was telling the truth. Moreover, his testimony is supported
by the logical consistency of all the credited evidence relating to the man-
agement-employee relations of Respondent.
Company's coffee relief rule; that Delgado was caught vio-
lating the Company's coffee relief rule more than any other
employee, but he was the only employee shown to have
been followed by management when he was caught on sev-
eral occasions violating the rule; that in May 1976, Delga-
do was given the longest (37 hours) suspension from work
for violating the coffee relief rule; that no employee other
than Delgado had ever been so severely disciplined (37
hours' suspension) for violating the coffee relief rule; that
the record does not show that any employee was the sub-
ject of such extensive surveillance by Respondent in going
to coffee shops after leaving the store in the morning; that
Delgado was subsequently caught violating the coffee relief
rule for which Respondent (Supervisor Coggin) considered
terminating his employment but elected to give Delgado
another chance; and that Delgado's immediate supervisor,
Mike Kennedy, admitted he did not give Delgado any writ-
ten warnings for tale coffee relief infractions because, he
contends, he was trying to win Delgado's confidence since
Delgado got along so well with people.
E. The Onset of Delgado's Personal Problem and his
Ultimate Resignation
Delgado further testified that just prior to March 1977,
the Union had an election in which he ran for vice presi-
dent and Andrew Besa ran for president of the Brownsville
area. They both lost and Delgado said that he was disap-
pointed because Brownsville elected only one officer. He
investigated the results of the election and learned that
only 12 garage employees out of 36 had voted. He was
pretty upset about this fact because he felt his steward ef-
forts for employees were not appreciated. Consequently, he
submitted his letter of resignation as steward on March 16,
1977.
Subsequently, Delgado said that a new problem arose
over the overtime and he went to his supervisor, Ron Ticer,
and reminded him of the meeting with Mr. Coggin some
time ago in which Coggin said the Company was going to
post the overtime. Ticer said Coggin did not tell him any-
thing about that and he told Ticer to call Mr. Coggin and
ask him about it.
In May 1977, Delgado said that a personal problem
arose wherein his ex-wife called him about the care of his
2-year-old daughter in Oklahoma City. He requested a
leave of absence and Supervisor Ron Ticer told him he had
spoken with his supervisor, Coggin, about it and informed
Delgado that unless such leave was for an emergency in the
immediate family or pregnancy, Respondent could not
grant it.
Two weeks later, Delgado asked for a vacation and was
granted one from April 18 to April 25. On April 25, Delga-
do called Supervisor Ron Ticer and asked for an extension,
and Ticer granted him the remainder of his vacation, 2
days, plus 3 days excused absence time, which gave Delga-
do until April 29 to return to work. Delgado went to Okla-
homa City and applied for employment at Respondent's
Oklahoma City facility where it was suggested that he try
to transfer, and he advised them that he had requested a
transfer on two occasions without success. He then asked
the lady with whom he had spoken how could he get a job
424
SOUTHWESTERN BELL TELEPHONE COMPANY
there, and she told him that if he resigned and sent a rec-
ommendation from his supervisor she could then hire him.
Delgado returned to Brownsville and talked to Supervisor
Ticer about it. His description of that conversation is as
follows:
He said, well, I don't know. Are you sure you want
to go?
I said, man, it's not that I want to go. It's something
that I have to do, you know.
And he said, well, Joe, I'll help you as much as I
can. You can count on me, you know. And he says,
write me a letter.
And so I wrote the letter and told him why and all
this.
He said, good luck, man. I never had any trouble
with you, and I'll be willing to help you as far as I can.
And I said, thanks, Ron. Thanks a lot.
Delgado submitted his resignation on May 13, 1977. and
went to Oklahoma City and applied for a splicer's job with
Respondent's Oklahoma City facility. He was informed
that there were no openings for a splicer, but that he could
apply at the service department for a position as a tempo-
rary service representative. Delgado said he declined to ap-
ply for the subject position because he was not interested in
that position. He called Supervisor Ticer immediately, on
May 16, 1977, and asked to be reinstated to his job. Ticer
said he did not know and suggested that he talk to M. A.
Coggin. Delgado called Coggin and the latter told him he
(Delgado) made the decision. Delgado said he reminded
Coggin that he had rehired Sammy Sullivan, who had been
out for a long time, and Coggin said, "Oh! I already talked
to Robbins [Coggin's supervisor] and he seems to agree with
me, I don't have to give you your job back, and I already told
you all the trouble you gave me about those grievances. " Del-
gado said he then said, "It sounds very final Coggin, I have
worked for you .... " And Coggin hung up the telephone.
Delgado said he then brought his daughter back to
Brownsville. He denied that Ticer told him before he re-
signed that it would be difficult for him to be rehired.4
With respect to Delgado's resignation from employment,
Supervisor Ron Ticer testified that after being informed by
Delgado of his intention to resign, he asked Delgado was
he sure about what he was about to do, and Delgado said,
"Sure." He said he then said, "If you're sure, I want it in
writing," and Delgado said, "O.K." Delgado called him a
few days later requesting reinstatement to his job and he
told Delgado it was out of his hands because the letter had
been submitted that Friday, and he was sure the papers
were being processed. Ticer said at the time he supervised
Delgado he (Delgado) was not active in the Union and he
was not aware of any grievances Delgado had filed. Super-
visor M. A. Coggin said that he simply told Delgado he
I credit Delgado's testimony to the effect that Supervisor Coggin told
him he (Coggin) could not rehire him because he had received the blessings
of his own supervisor. Mr. Robbins, not to rehire Delgado. and because
Delgado gave him all that trouble with those grievances. I credit Delgado's
testimony not only because I was persuaded by his demeanor that he was
telling the truth, but also because Coggin did not categoncally deny that he
made such statements, and because such statements appear to be consistent
with Coggin's other antiunion statements and conduct in the record.
would not rehire him, that he (Delgado) had made a deci-
sion and as far as he (Coggin) was concerned, it was final.
Coggin said he declined to rehire Delgado because of his
past and poor work performance.
Carol Thomas, an employment office interviewer for the
Respondent, testified that about May 16, 1977. Delgado
came to the Oklahoma City office and asked for a service
representative position, permanent or temporary. He com-
pleted an application and she scheduled him for a test on
June 17, 1977, at 12:45 p.m. He did not appear, nor did he
call to reschedule the test. At the time he applied, she said
that Respondent was not accepting applications for craft
jobs and it has not accepted applications for craft positions
within the past 2 years. Delgado denied that he agreed to
accept the temporary position or that he requested a ser-
vice representative job. He said that they told him that was
the position that was open and he applied for it and left
Oklahoma.
F. Delgado's Work Performance
Delgado said that prior to November 1976. the last ap-
praisal he received from Mike Kennedy was outstanding.
He said only two reprimands were placed in his personnel
file, the last of which was in May 1976, and he resigned in
May 1977. He said that shortly after he was suspended for
37 hours from Tuesday through Friday in May 1976, Re-
spondent sent him to advanced cable splicing school, the
following Monday, in San Antonio for I week. He said his
last supervisor, Ticer, commended his work on two occa-
sions.
Harry Irby, employed by Respondent 31 years, has
worked as a cable splicer, switchman, and cable splicing
foreman. He has been a member of the Union for 27 years,
18 years as secretary, and he now serves as chief job fore-
man. Irby testified that cable splicing work is generally
unsupervised 80 to 85 percent of the time, and sometimes
the splicer works alone. He supervised Delgado for I year.
In explaining (Resp. Exh. 3) a "Recommendation of Wage
Consideration Date and/or Progress Review," signed by
Irby on April 23, 1974, he said that after I month to 6
weeks, the report indicates Delgado took pnde in his work.
At that time he considered Delgado a good employee. The
nonsupervisory employee appraisal, dated May 10, 1974
(Resp. Exh. 4) was favorable. Delgado was rated 65 to 75
percent on job skills as a cable splicer on a scale of 100
percent. He believed that Delgado's performance would
improve with experience, but his productivity needed im-
provement. However, at that time Delgado was a goodpo-
tential for management.
Respondent's Exhibit 5 is a progress review report after
Irby had been supervising Delgado 8 months. By this time,
Irby contends that Delgado's performance had declined,
that he had fouled up several jobs necessitating his (Irby)
going to the jobs six or seven times to correct mistakes that
Delgado had made, and which he felt a man with
Delgado's experience should not have made. The report
was unfavorable as described on pages 116 through 118 of
the transcript herein. Irby said that he thought Delgado's
domestic and financial problems were affecting his work
performance. However, in General Counsel's Exhibit 2,
425
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Irby rated Delgado's work satisfactory, indicating that he
tries to keep defects to a minimum and did a trouble free
job; that he showed good improvement in the last 3
months with a lot better attitude. Mike Kennedy supervised
Delgado from September 1975 until November 1976. In his
employee appraisal, dated January 1976, he indicated that
Delgado needed improvement in attitude and pride, and
that he was abusing the lunch relief periods. He said he did
not recall telling the Board during an interview that he did
not have any trouble with Delgado's work performance
sufficient to write him up.
Ron Ticer testified that he supervised Delgado for ap-
proximately 6 1/2 months but during such time did not
ever prepare a formal appraisal or progress review regard-
ing Delgado's work performance. Now, while testifying, Ti-
cer said that he believed for the amount of experience Del-
gado had, his production was a little below par, or below
average, and that his quality of work was approximately
average. He said that Delgado liked to pick his job and
would complain about the jobs. Ticer further testified that
Respondent's performance evaluations are given annually
on the birthdate of the employee. He acknowledged that
Delgado's evaluation was due in May 1977, but that Delga-
do had an evaluation in his file dated January 23, 1976. He
admitted that he knew Delgado was a union steward.
Analysis and Conclusions
In determining whether Respondent's refusal to rehire
Jose M. Delgado to his last position of employment was
based upon good cause, objective economic considera-
tions, or upon Delgado's aggressive activity as steward for
the Union, it is readily observed that the evidence is clear
that Delgado voluntarily resigned from his position on
May 13, 1977. The evidence of record is also clear that
Respondent, through its supervisors M. A. Coggin and
Mike Kennedy, has manifested a history of antiunion (an-
tiactive stewards) conduct against Delgado, as well as other
persons (stewards Thurwalker, Rodriguez, etc.) who served
as stewards for the Union. Hence, whatever reasons, just or
pretextual, Respondent advances for refusing to rehire
Delgado must necessarily be measured against this histori-
cal background and Respondent's knowledge of Delgado's
active involvement in the multiplicity of employee griev-
ances he processed.
There cannot be a genuine question about Delgado's in-
volvement in grievance processing since the record is re-
plete with evidence that Delgado was recognized by Re-
spondent, and respected by his fellow employees, as an
aggressive processor of employee grievances. So active was
Delgado in this respect that supervisor Coggin accused him
of boasting to other employees about a grievance victory,
and supervisor Kennedy frequently reminded him that he
did not work for the Union, but for the Company (Respon-
dent).
The credited evidence of record clearly establishes that
all of Respondent's employees have, on occasion, violated
its coffee relief rule by purchasing coffee at times other
than the designated coffee relief periods; and that some
employees, including Delgado, have been disciplined by
Respondent for such violations. However, it is well estab-
lished that Delgado was the most frequent offender of the
rule caught by management, and that he is the offender
who has been most severely disciplined (37 hours suspen-
sion from work) by Respondent. If the evidence were to
become final at this juncture, it would appear that Delgado
was the most chronic offender of the coffee relief rule
whose resignation Respondent should have rejoiced in re-
ceiving. Unfortunately, or fortunately, the evidence does
not conclude here, but instead goes on to establish that
certain members of management (Supervisors Kennedy
and Vela) were observed conducting surveillances of Del-
gado as he left the store in the morning. Under such cir-
cumstances, it cannot be concluded that Delgado violated
the coffee rule any more than any other employee, since it
is not established that other named employees were under
such surveillance by Respondent.
Consequently, when Respondent's antiactive steward
background and its knowledge of Delgado's active griev-
ance processing is considered along with the several occa-
sions on which Delgado was caught by management violat-
ing the coffee relief rule, it may reasonably be inferred that
Respondent singled out Delgado and zeroed in on his work
itinerary, in order to obtain evidence upon which it could
impose disciplinary sanctions against him for his aggressive
grievance activity. This position is further supported by the
evidence that Delgado holds the record for an unprece-
dented suspension (37 hours) for violating the coffee relief
rule, the evidence of Respondent's attitude towards other
stewards, and Respondent's refusal to honor Delgado's re-
quest for reinstatement, infra. I do not credit the advanced
subjective explanation of Supervisor Kennedy for his fail-
ure to issue written warnings to Delgado for his several
violations of the coffee relief rule. I also note (and consid-
ered the fact) that Delgado's concern and involvement with
grievances continued after he resigned as steward on
March 16, 1977.
In considering Respondent's refusal to rehire Delgado to
his former position of employment, it is particularly noted
that only on one occasion during Delgado's working tenure
with Respondent did Respondent ever, in fact, issue to
Delgado a written, but not formal, warning (in his record)
for eating a taco and reading the newspaper on the job.
The evidence does not show that such conduct by Delgado
was ever repeated. He was not issued any written warnings
for his several violations of the coffee relief rule. Neverthe-
less, after the onset of Delgado's domestic problem, the
undisputed and credited evidence shows that Respondent
denied Delgado's request for a recommended transfer to its
Oklahoma City facility. Although Delgado assumed the
risk of obtaining employment at Respondent's Oklahoma
City facility by resigning from Respondent's Brownsville
facility first, the evidence does not show that he was in-
formed or that he had any concrete evidence that Respon-
dent would not have rehired him, especially when his re-
quest for reemployment was made only 5 days subsequent
to his resignation.
In an effort to justify its refusal to reemploy Delgado,
Respondent offered rather old (early and mid-1976) evi-
dence of Delgado's coffee relief violations and performance
evaluation (progress review) reports for 4-28-74 and 5-1(-
74 (Resp. Exhs. 3 and 4), and such reports for 10-27-74
426
SOUTHWESTERN BELL TELEPHONE COMPANY
and 1-23-76 (Resp. Exhs. 5 and 6). The first evaluative
reports (Resp. Exhs. 3 and 4) are favorable and indicate
Delgado had good potential. The second set of evaluative
reports (Resp. Exhs. 5 and 6) recognized Delgado had fam-
ily problems which apparently affected his job attitude and
job pride, and that his production needed improvement.
However, he was still considered a good prospect for a
management position. Finally, Delgado's personnel file
also contained one written warning issued to him October
13, 1975 (hereinabove referred to) for eating a taco and
reading a newspaper during working hours. The record
does not show that such conduct was ever repeated by Del-
gado.
Respondent also submitted evidence that it has not hired
any new employees since Delgado resigned on May 13,
1977. It further showed that all seven cable splicing posi-
tion vacancies since Delgado's resignation were filled by
transfers of personnel from within its Brownsville facility.
Conspicuously absent in Respondent's evidence, however,
is any evidence of economic considerations which necessi-
tated Respondent's cutting down its work force, by laying
off or not hiring new employees, or evidence that
Delgado's former position no longer existed. When the ab-
sence of such evidence is considered along with Respon-
dent's reliance upon such remote and exaggerated evidence
of Delgado's violations of the coffee relief rule and his
work performance evaluation reports, for which he did not
receive any written warnings, the Administrative Law
Judge is persuaded that such evidence by the Respondent
is a mere pretext to conceal its real motive for refusing to
reemploy Delgado.
The only significant conflict in the testimony with re-
spect to Delgado's personal problem, his resignation, and
his request to be reemployed by the Respondent, is his
conversation with M. A. Coggin, engineering construction
supervisor for the Respondent, on May 16, 1977, 3 working
days after his resignation. Prior to that conversation,
Delgado's immediate supervisor, Ron Ticer, informed him
that he did not know whether he (Delgado) could be reem-
ployed and referred him to Supervisor M. A. Coggin.
When Delgado called Coggin, the latter told him that he
(Delgado) had made the decision, and when Delgado re-
minded Coggin that he had rehired another employee who
had been out for a long time, Coggin said, "Oh! I already
talked to Robbins [Coggin's supervisor] and he seems to agree
with me, I don't have to give you your job back, and I already
told you all the trouble you gave me about those grievances. "
When Delgado told Coggin it sounded very final, Coggin
hung up the telephone. I credit Delgado's testimonial ac-
count in this regard not only because I was persuaded by
his demeanor that he was telling the truth, but also because
Coggin did not specifically and emphatically deny these
statements attributed to him by Delgado.
Moreover, the above statements attributed to Coggin are
consistent with Respondent's (Coggin's) other antisteward
(union) activity towards Delgado and other stewards. In
fact, it is particularly noted that in all of the evidence relat-
ing to disciplinary action imposed against Delgado, or
other antisteward grievance activity to stewards (Yvonne
Thurwalker and Rodriquez), Supervisors M. A. Coggin,
Mike Kennedy, or Richard Vela were involved. It is at
least well established on the record that Coggin and Ken-
nedy were aware of the steward and grievance activities of
Delgado and Yvonne Thurwalker. Supervisor Coggin was
involved in practically every incident involving the consid-
erable number of the grievances which Delgado processed,
as well as most of the infractions of the Company's coffee
relief rule by Delgado. Hence. Coggin had a clearly mani-
fested motive for refusing to rehire Delgado and that un-
lawful motive predominated all other motives for not rehir-
ing him.
The Act, in part, as pertinent herein, provides that "It
shall be an unfair labor practice for an employer .... By
discriminating in regard to hire or tenure of employment or
any term or condition of employment to encourage or dis-
courage membership in any labor organization." In dispos-
ing of the issue as to whether an employer may deny em-
ployment to a nonemployee and if so, how can such denial
be remedied, the Sdpreme Court said:
We have already recognized the power of Congress
to deny an employer the freedom to discriminate in
discharging. N.LR.B. v. Jones & Laughlin, 301 U.S. 1.
So far as questions of constitutionality are concerned
we need not enlarge on the statement of Judge
Learned Hand in his opinion below that there is "no
greater limitation in denying him (the employer] the
power to discriminate in hiring, than in discharging
Did Congress also empower the Board to order
the employer to undo the wrong by offering the men
discriminated against the opportunity for employment
which should not have been denied them?
Reinstatement is the conventional correction for
discriminatory discharges. Experience having demon-
strated that discrimination in hiring is twin to discrim-
ination in firing, it would indeed be surprising if Con-
gress gave a remedy for the one which it denied for the
other. . . . Phelps Dodge Corporation v. N. L. R. B., 313
U.S. 177, 187 (1941). 5
It is obvious by the evidence that while Delgado may not
be deemed an exemplary employee, the evidence does not
show that Respondent considered him an unsatisfactory
employee. This position is supported when it is noted that
immediately after Delgado's excessive suspension for vio-
lating the coffee relief rule, Respondent immediately sent
him to advanced training school in San Antonio, Texas.
Moreover, Delgado's work performance evaluation reports
continued to refer to him as a good prospect for manage-
ment with no indication that his work was unsatisfactory
or any indication that he was a potential for discharge. If
such evidence suggests at all that Respondent even enter-
tained a desire to eliminate Delgado from its employ, it is
obvious that such consideration was far from being the
primary motivating cause for its refusal to reemploy Delga-
do. On the contrary, the evidence is more than sufficient to
5Also see: The Great Atlantic and Pacific Tea Co., Inc., 354 F.2d 707 (Sth
Cir. 1966); Erie Sand Steamship Company. 189 NLRB 63 (1971); Memorial
Hospital Association, Inc.. JD-205-77, and as counsel for the General Coun-
sel further cites, a discharge or, here, a refusal to hire "motivated only in
part by an unlawful purpose is similarly illegal." J. P. Stevens & Co.. Inc., v
N L.R.B.. 380 F.2d 292 (2d Cir. 1967). cert. denied 389 U.S. 1005.
427
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support the conclusion and finding that Respondent's pri-
mary motive for refusing to reemploy Delgado was not his
abuse of coffee relief or his work performance, but rather,
Delgado's very active and aggressive processing of employ-
ee grievances against Respondent. Such refusal by the Re-
spondent therefore constituted a violation of Section
8(a)(3) and (1) of the Act.
IV IHe EFIE(ITI OF THE UNFAIR LABOR PRACTICES UPON
COMMERC(E
The activities of Respondent set forth above, occurring
in connection with its operations. have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(a)(3)
and (I) of the Act, it will be recommended that the Re-
spondent cease and desist therefrom and take certain affir-
mative action designed and found necessary to effectuate
the policies of the Act.
Having found that Respondent discriminated against
Jose M. Delgado for exercising his Section 7 protected
rights in violation of Section 8(a)(3) and (1) of the Act, the
recommended Order will provide that Respondent offer
Jose M. Delgado reemployment to his job, and make him
whole for any loss of earnings within the meaning of and in
accord with the Board's decisions in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977),6 except as specifically modified
by the wording of such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from in any manner interfer-
ing with, restraining, and coercing employees in the exer-
cise of their rights guaranteed by Section 7 of the Act.
N.L.R.B. v. Entwistle Manufacturing Company, 120 F.2d
532, 536 (4th Cir. 1941).
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Southwestern Bell Telephone Company, the Respon-
dent, is an Employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Communications Workers of America, Local 12229,
is, and has been at all times material herein, a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. By refusing to reemploy Jose M. Delgado on May 18,
1977, because he actively and aggressively processed em-
ployee grievances in accordance with his steward duties on
behalf of the Union, in order to discourage his and other
6 See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962)
employees' membership in said Union, Respondent dis-
criminated against him in regard to his tenure of employ-
ment and has engaged in, and is engaging in, unfair labor
practices condemned by Section 8(aX3) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER7
The Respondent, Southwestern Bell Telephone Compa-
ny, its officers, agents. successors, and assigns, shall:
I. Cease and desist from:
(a) Discouraging membership in, or activities on behalf
of, Communications Workers of America, Local 12229, or
any other labor organization, by refusing to reemploy or
otherwise discriminating against them in any manner in
respect to their tenure of employment, or any term or con-
dition of employment, in violation of Section 8(a)(3) and
(1) of the Act.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Jose M. Delgado immediate and full reinstate-
ment to his former position or, if such position no longer
exists, to a substantially equivalent position, without preju-
dice to his seniority or other rights previously enjoyed, and
make him whole for any loss of pay suffered by reason of
the discrimination against him, with interest, in the manner
described in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at Respondent's Brownsville, Texas, facility
copies of the attached notice marked "Appendix." 8 Copies
of said notice on forms provided by the Regional Director
for Region 23, after being duly signed by Respondent's
authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the Natinal Labor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
In the event that this Order is enforced by a judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National L abor Relations Board."
428
SOUTHWESTERN BELL TELEPHONE COMPANY
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 23, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportunity to
present evidence, the National Labor Relations Board has
found that we violated the National Labor Relations Act,
as amended, and has ordered us to post this notice.
WE WILL NOT discourage membership in, or activities
on behalf of Communications Workers of America,
Local 12229, or any other labor organization, by refus-
ing to reemploy employees or otherwise discriminating
against them in any manner in respect to their tenure
of employment or any term or condition of employ-
ment.
WE WILL offer Jose M. Delgado immediate reinstate-
ment to his former position or, if such position no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights previ-
ously enjoyed, and make him whole for any loss of
pay suffered by reason of our discrimination against
him, with interest.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise and en-
joyment of rights guaranteed them by Section 7 of the
National Labor Relations Act, except to the extent
that such rights may be affected by lawful agreements
in accord with Section 8(a)(3) of the Act.
All our employees are free to become, remain, or refuse
to become or remain members of said Union or any other
labor organization, except to the extent that such rights
may be affected by lawful agreements in accord with Sec-
tion 8(a)(3) of the Act.
SOUTHWESTERN BELL TELEPHONE COMPANY
429