Tel Data Corp.

National Labor Relations Board - Board Decisions

Oct 27, 1994

315 N.L.R.B. 364 (N.L.R.B. 1994)

364
315 NLRB No. 46
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We correct certain errors in the judge’s decision. In sec. III,C,3,
we note that Dale Frederick was informed that he should return to
Nashville on January 21, 1992, rather than 1993; and in sec. III,C,2,
the memorandum regarding out-of-town van use was dated Novem-
ber 19, 1991, not 1992 as stated in the decision.
2 The judge inadvertently omitted from the conclusions of law his
finding that the Respondent violated Sec. 8(a)(3) and (1) by chang-
ing its telephone credit card policy to retaliate against employees for
engaging in protected activity.
3 No exceptions were filed to the following findings of unlawful
conduct: (1) the Respondent violated Sec. 8(a)(1) by telling employ-
ees that they would receive three additional holidays and be able to
work on certain jobsites only if they joined the Union; (2) the Re-
spondent violated Sec. 8(a)(2) and (1) by paying union dues on be-
half of employees without deducting such amounts from the employ-
ees’ wages; and (3) the Respondent violated Sec. 8(a)(5), (3), and
(1) by withdrawing the option of out-of-town employees to claim ac-
tual expenses instead of per diem, and by eliminating on-call bonus
pay for local employees; and (4) the Respondent violated Sec.
8(a)(3) and (1) by assigning employee Russell Anderson more oner-
ous work.
We modify the judge’s remedy to provide for computation of lost
earnings or benefits as a result of the Respondent’s failure to abide
by the terms and conditions of the collective-bargaining agreement,
as prescribed in Ogle Protection Service, 183 NLRB 682, 683
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173 (1987).
4 All dates are in 1991 unless otherwise indicated.
5 The judge found that Vice President Tournaud’s statement that
employees were required to join the Union in order to get three addi-
tional holidays, and to be able to work on certain jobs, violated Sec.
8(a)(1). The General Counsel has excepted to the judge’s failure to
find that this requirement also violated Sec. 8(a)(2). We agree with
the General Counsel that requiring employees to join the Union in
order to receive additional benefits constitutes unlawful support of
a labor organization within the meaning of Sec. 8(a)(2) of the Act.
See Vic’s Shop ’N Save, 215 NLRB 28, 33 (1974).
Tel Data Corporation and Dale Frederick and Sher-
ry J. Scott and Russell T. Anderson. Cases 26–
CA–14904, 26–CA–14970, and 26–CA–14997
October 27, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On March 4, 1994, Administrative Law Judge Rich-
ard A. Scully issued the attached decision. The Re-
spondent, the General Counsel, and Charging Party
Sherry Scott filed exceptions and supporting briefs,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 only to the extent consistent with this Deci-
sion and Order.3
The judge recommended, inter alia, dismissal of cer-
tain complaint allegations regarding the Respondent’s
distribution of a new employee handbook, issuance of
a written out-of-town van policy, discharge of em-
ployee Sherry Scott, and a statement that nonmembers
of the Union could not file grievances. For the reasons
set forth below, we disagree with the judge on these
issues.
The Respondent is in the business of installing elec-
tronic communication systems in retail stores through-
out the country. Since 1979, the Respondent and the
Union have been parties to successive collective-bar-
gaining agreements.
On October 24, 1991,4 Union President Jesse Parrish
requested a grievance meeting with the Respondent to
discuss the Respondent’s failure to provide benefits re-
quired by the contract. At a meeting on November 1,
the Respondent agreed to honor the contract, and no
further action was taken on the grievance.
On December 13, the Respondent conducted a meet-
ing of employees at its headquarter offices in Nash-
ville. At the meeting, Respondent President John Grif-
fin announced that he knew at least eight employees
had contacted the Union and that ‘‘since all this union
crap has come up,’’ there were going to be some
changes. Griffin stated that the union contract was
being shoved down his throat, and warned employees
that they could not have it both ways—if the Respond-
ent had to adhere to the particulars of the contract,
then any benefits not specifically required by the con-
tract would be eliminated. Griffin also told employees
that he could fire them, close the company, and reopen
under another name.
Vice President Phillip Tournaud also addressed the
employees. He stated that employees who signed dues
authorization forms would be members of the Union,
would be eligible to work on more jobs, and would get
three more holidays than those who did not join the
Union.5
Following the meeting, employees were issued, for
the first time, an employee handbook. The handbook
provisions eliminated certain benefits that the Re-
spondent had been providing, including the ‘‘on-call’’
pay of $118 per week for local employees, the option
of driving company vehicles to and from work, and the
option of out-of-town employees to claim actual ex-
penses in lieu of a per diem allowance. The handbook
also contained the Respondent’s November 19 policy
restricting out-of-town van use, and the November 18
policy restricting the use of company telephone credit
cards.
365TEL DATA CORP.
1. We agree with the judge, for the reasons stated
in his decision, that the distribution of the employee
handbook at the December 13 meeting, without notice
to the Union and without giving the Union an oppor-
tunity to bargain, violated Section 8(a)(5) and (1). For
the reasons stated below, however, we find, contrary to
the judge, that the issuance of the employee handbook
also constitutes a separate violation of Section 8(a)(3)
and (1).
The employee handbook announced policies that
significantly reduced the benefits employees had pre-
viously enjoyed, and was issued soon after the employ-
ees protested the Respondent’s failure to comply with
the terms of the contract. Indeed, as Griffin explained
at the December 13 meeting, if the Respondent had to
adhere to the particulars of the contract, then any bene-
fits not specifically required by the contract would be
eliminated. The judge himself found that several of the
policy changes announced at the December 13 meeting
and included in the handbook were discriminatory. The
Respondent had never before issued an employee
handbook and clearly did so at the December meeting
as one more element of its plan to retaliate against em-
ployees for their protected grievance activity. Under
these circumstances, we find that the issuance of the
employee handbook violated Section 8(a)(3) and (1) of
the Act.
2. The judge found that the Respondent did not vio-
late Section 8(a)(5), (3), or (1) when, on November 19,
it announced new rules on the use of company vans
by out-of-town employees. The judge found that the
November 19 written policy was not different from the
existing unwritten policy and thus did not constitute a
unilateral change. The judge found that prior to No-
vember 19 the Respondent had a ‘‘don’t ask, don’t
tell’’ policy with respect to the personal use of com-
pany vans on weekends, but that this policy was not
unlimited.
In excepting to the judge’s findings, the General
Counsel maintains that the November 19 van policy
placed new restrictions on employees, and that the re-
strictions were implemented in response to the employ-
ees’ union activity, without notice to the Union and
without affording the Union an opportunity to bargain
over the change.
We agree with the General Counsel that the van pol-
icy announced November 19 was more restrictive than
the previous policy, and that it was instituted both uni-
laterally and in retaliation against the employees’ pro-
tected activity.
It is undisputed that at all relevant times the Re-
spondent assigned company vans to employees for use
in getting to and from their out-of-town jobsites, and
for carrying tools and equipment. Prior to November
19, employees were also permitted to use company
vans on their weekends and days off. The record
shows that employees regularly used company vans on
weekends to go deer hunting, fishing, camping,
snowmobiling, visiting relatives, and sightseeing, often
traveling great distances to their destinations. Em-
ployee Neal Ingram testified that he drove the van on
a 1-week trip from his jobsite in Texas to Arkansas,
and then back to Texas. Prior to this trip, Ingram in-
formed Tournaud of his vacation plans and was told to
have a good time. On many occasions, employee Keith
Bolton drove a company van from his jobsite in
Gainesville, Florida, to his parents’ home in
Valparaiso, Florida. Employee Dale Frederick testified
that, with Supervisor Steve Cowell’s knowledge, he
used a company van for 1 week to go hunting. He also
drove the van from his jobsite in Minnesota to his
home in Michigan for a 1-week visit, and then drove
it back to Minnesota. Frederick also went in a com-
pany van on a camping trip with another employee to
the Grand Canyon. Frederick testified that he told
Cowell where he was going ‘‘most of the time,’’ and
was never told that the Respondent had a problem with
his vacation plans. Supervisor Rick Nelson credibly
testified that he never restricted his employees in the
use of company vans on their days off, and that he
was never instructed to restrict employees’ van use.
Nelson testified that it was ‘‘normal procedure’’ for
employees to take the vans with them if they had time
off between jobs, rather than leave them at a remote
jobsite.
On November 19, the Respondent issued, for the
first time, a written policy concerning the use of com-
pany vans by out-of-town employees during their
nonworktime. The policy states, inter alia:
Employees can drive company vans a reasonable
distance from job sites for meals, shopping for ne-
cessities, etc. and, of course, to hotels/motels for
lodging purposes. A reasonable distance depends
on many factors including, but not limited to, the
size of the city where work is ongoing, availabil-
ity of lodging, restaurants, etc. Reasonable judg-
ment is to be exercised, and when in doubt the
employee is to seek approval from his supervisor
on what the company considers reasonable.
. . . .
Any use of company vans other than those cov-
ered in this policy requires approval in advance
by the employee’s supervisor for each and every
time an exception to this policy is permitted.
We conclude that the above policy announces new
restrictions on the employees’ use of company vans.
Prior to this policy, there was never a requirement that
employees obtain the advance approval of their super-
visor to use company vans on their nonworktime, in-
cluding trips beyond a ‘‘reasonable distance’’ from
their jobsites. Indeed, the Respondent had never com-
municated any restrictions to employees and, as the
366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 We find no record evidence to support the judge’s assertion that
the Respondent’s supervisors told employees that they could use
company vans within a 200- to 300-mile area of their work assign-
ment without obtaining a supervisor’s specific permission.
7 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
8 The Respondent’s contention that it limited the use of vans in re-
sponse to liability concerns is also inconsistent with the Respond-
ent’s assertion that the November 19 policy did not constitute a
‘‘change.’’
9 In fact, Myrtle Beach, South Carolina, is 333 miles from Jack-
sonville, Florida. Rand McNally Mileage Guide, 1993.
10 Kysor Industrial Corp., 307 NLRB 598, 603 (1992). We shall
modify the judge’s recommended Order to require that the Respond-
ent offer Scott immediate and full reinstatement, and make him
whole for any loss of pay and benefits. Backpay shall be computed
in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
judge noted, maintained an unspoken ‘‘don’t ask, don’t
tell’’ policy.6 The record shows that no employee had
ever been denied the use of a van based on the ‘‘rea-
sonable distance’’ limitation, even when the Respond-
ent was aware that the employee would be driving the
van a substantial distance from the jobsite.
We further find that the General Counsel made a
showing sufficient to support the inference that the re-
strictive van policy was promulgated in response to
employees’ protected conduct.7 The Respondent’s
president told employees at the December 13 meeting
that changes were being made because employees had
complained to the Union about the Respondent’s fail-
ure to abide by the contract. The Respondent also
demonstrated considerable union animus, as found by
the judge, by unlawfully eliminating other employee
benefits that were not specified in the contract, and by
threatening employees with discharge and plant clo-
sure, because the employees engaged in protected ac-
tivity.
We further find that the Respondent has not met its
burden under Wright Line of demonstrating that it
would have issued the new van policy even in the ab-
sence of the employees’ protected activity. In the Re-
spondent’s brief in support of exceptions, the Respond-
ent asserts that ‘‘Griffin determined to limit the use of
vans on out of town jobs as well as to terminate the
privilege of driving vans home by local employees’’
based on information received in August from the Re-
spondent’s insurance carrier regarding worker’s com-
pensation liability. Despite the liability concerns raised
in August, the Respondent did nothing to correct the
perceived problem until November 19, just a few
weeks after the first grievance meeting.8 Under these
circumstances, we find that the Respondent issued the
new van policy in retaliation for the employees’ pro-
tected conduct, without notice to the Union and with-
out affording the Union an opportunity to bargain,
thereby violating Section 8(a)(5), (3), and (1).
On November 25, employee Sherry Scott was dis-
charged for ‘‘unauthorized use of a company vehicle.’’
After completing work in Jacksonville, Florida, on Fri-
day, November 15, Scott drove the company van to
Myrtle Beach, South Carolina. When Scott returned to
Nashville on November 25, he was informed that he
was terminated for taking the van 750 miles9 from the
jobsite without permission. By discharging Scott pursu-
ant to the unlawfully implemented van policy, the Re-
spondent further violated Section 8(a)(5) and (1).10
3. On January 17, 1992, Vice President Tournaud
met with Union Representative Parrish and employees
Russell Anderson and Mike Brown to discuss a griev-
ance filed by the two employees. At the beginning of
the meeting, Tournaud asked Parrish whether Brown
was a member of the Union. Parrish responded that it
did not matter. Tournaud, in a hostile tone, insisted
that Brown was not a member of the Union because
he was not having dues deducted, and thus he could
not file a grievance or be represented by the Union.
Parrish explained that Brown had paid his dues directly
to the Union, and that regardless of dues, he had a
right to be represented by the Union. The grievance
was denied and no further action was taken on it.
The judge found that Tournaud’s ‘‘erroneous re-
mark’’ to Brown that he could not file a grievance and
be represented by the Union because he did not have
dues deducted was not coercive. The judge explained
that the remark was made at the beginning of the
meeting and was immediately challenged by Parrish,
who proceeded to represent Brown on the grievance.
Under the circumstances, we cannot agree with the
judge that the Respondent’s conduct had no substantial
impact on employee rights. Approximately 1 month
earlier, at the December 13 meeting, Vice President
Tournaud drew the same distinction between union
members and nonmembers, stating that members
would be entitled to certain benefits not available to
nonmembers. Tournaud’s comment at the January 1992
grievance meeting shows that the Respondent had not
abandoned this unlawful distinction, but was continu-
ing to insist that the contract only applied to union
members. Because Tournaud’s statement would reason-
ably tend to interfere with, restrain, and coerce em-
ployees in the exercise of their protected right to file
a grievance and be represented by the Union, we find
that it violated Section 8(a)(1) of the Act.
4. We agree with the judge, for the reasons set forth
in his decision, that the Respondent violated Section
8(a)(3) and (1) by discharging employee Dale Fred-
erick on January 23, 1992, because he engaged in pro-
tected activity. In reaching this conclusion, however,
the judge refused to consider evidence the Respondent
discovered after Frederick’s discharge allegedly indi-
367TEL DATA CORP.
11 Frederick took personal leave on December 2.
cating that Frederick had overreported 8 hours on his
timecard for December 3. The judge disregarded this
evidence because he found that the alleged overreport-
ing, which the Respondent asserts would have led to
Frederick’s discharge even absent his protected activ-
ity, was admittedly not known to the Respondent at the
time of its decision to discharge Frederick. The Re-
spondent excepts to this finding and maintains that
Frederick’s alleged misstatement of his time ‘‘justi-
fies’’ his discharge.
Although the judge was correct in finding that the
timecard incident is not relevant to the issue of wheth-
er Frederick was unlawfully discharged, the Respond-
ent’s evidence nonetheless must be considered in de-
termining whether Frederick is entitled to reinstatement
and full backpay. Under Board precedent, ‘‘if an em-
ployer satisfies its burden of establishing that the
discriminatee engaged in unprotected conduct for
which the employer would have discharged any em-
ployee, reinstatement is not ordered and backpay is ter-
minated on the date that the employer first acquired
knowledge of the misconduct.’’ Marshall Durbin Poul-
try Co., 310 NLRB 68, 70 (1993), citing John Cuneo,
Inc., 298 NLRB 856, 856–857 (1990), and Axelson,
Inc., 285 NLRB 862, 866 (1977).
Applying this precedent, we conclude that the Re-
spondent has not satisfied its burden. Contrary to the
Respondent’s contention, the record shows that the Re-
spondent encouraged under- and overreporting of hours
during periods when employees worked irregular
workweeks. Employee Ingram testified that on several
occasions when he turned in overtime, Supervisor
Cowell directed him to take a few days off the next
week and then changed Ingram’s timecard to reflect 40
hours worked each week. Cowell admitted that he in-
structed employees to record 40 hours on their time-
cards when in fact they did not work a 40-hour sched-
ule.
The record also shows that the hours Frederick al-
legedly ‘‘overreported’’ were hours spent traveling to
his jobsite in Minnesota. It is undisputed that the Re-
spondent permits employees to report the time spent
traveling to and from their jobsites, including time
delays that were not the fault of the employee, such as
mechanical problems with the van. Frederick left for
his jobsite on Monday, December 2,11 and was delayed
in Wisconsin on December 3 because of a snowstorm.
On December 4, he arrived at the jobsite and began
working. Thus, on Tuesday, December 3, the date
Frederick is accused of overreporting hours, he was in
fact traveling to the jobsite, time for which employees
are normally compensated.
It is also undisputed that employee Joey Green,
Frederick’s partner at the time, was caught in the same
snowstorm and, like Frederick, did not begin working
on the job until December 4. Despite the fact that
Green also claimed 40 hours for the workweek, includ-
ing the weather delay, Green was not investigated by
the Respondent or accused of ‘‘stealing’’ time.
Based on the foregoing, it is clear that the Respond-
ent treated Frederick in a disparate manner and did not
satisfy its burden of establishing that it would have
discharged any other employee for the same conduct.
Accordingly, Frederick is entitled to reinstatement and
full backpay.
ORDER
The National Labor Relations Board orders that the
Respondent, Tel Data Corporation, Nashville, Ten-
nessee, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with loss of benefits be-
cause they engage in union or other protected activity.
(b) Threatening employees with business closure and
loss of employment because they engage in union or
other protected activity.
(c) Informing employees that they cannot file griev-
ances or be represented by the Union if they are not
members of the Union.
(d) Telling employees they will not receive addi-
tional benefits or be able to work on certain jobsites
unless they join the Union.
(e) Promising employees benefits if they refrain
from engaging in union or other protected activity.
(f) Assisting the Union by requiring employees to
join the Union in order to be eligible for three addi-
tional holidays and to work on certain jobsites.
(g) Assisting the Union by paying employees’ union
dues out of its own funds without deducting the
amount of the dues from the employees’ wages.
(h) Issuing employee handbooks to employees be-
cause they engage in union or other protected activity.
(i) Discharging, issuing disciplinary warnings to, as-
signing more onerous work to, or otherwise discrimi-
nating against employees because they engage in union
or other protected activity.
(j) Restricting the use of company vehicles by out-
of-town employees on nonworktime because they en-
gage in union or other protected activity.
(k) Withdrawing the use of company vehicles from
local employees for driving to and from the Respond-
ent’s facility because they engage in union or other
protected activity.
(l) Withdrawing from out-of-town employees the op-
tion of claiming actual expenses in lieu of per diem al-
lowance because they engage in union or other pro-
tected activity.
(m) Eliminating the on-call bonus pay for local em-
ployees because they engage in union or other pro-
tected activity.
368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(n) Restricting its policy regarding reimbursement
for phone calls and the use of company telephone
credit cards by employees working out of town be-
cause they engage in union or other protected activity.
(o) Refusing to bargain with the Union as the exclu-
sive bargaining representative of its employees in the
appropriate unit by making changes in the terms and
conditions of employment of such employees without
first notifying the Union and affording it an oppor-
tunity to bargain about such changes.
(p) Failing to continue in effect all of the terms and
conditions of employment prescribed in the collective-
bargaining agreement.
(q) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Dale Frederick and Sherry Scott immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits suf-
fered as a result of the unlawful conduct against them.
Backpay shall be computed as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest to
be computed in accordance with New Horizons for the
Retarded, 283 NLRB 1173 (1987).
(b) Remove from its files any reference to the un-
lawful discharges and warning, and notify the employ-
ees in writing that this has been done and that the dis-
charges and warning will not be used against them in
any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) On request by the Union, reinstate the practice
existing prior to November 18, 1991, with respect to
reimbursement for phone calls and the use of company
telephone credit cards for personal calls, the practice
existing prior to November 19 with respect to out-of-
town van use, and the practices existing prior to De-
cember 13, 1991, with respect to call-in pay, the use
of company vehicles for commuting to and from work
by local employees, the use of company vehicles by
out-of-town employees on their nonworktime, the op-
tion of out-of-town employees to claim actual expenses
in lieu of per diem, and on-call bonus pay for local
employees.
(e) Make whole the unit employees for any loss of
earnings or other benefits suffered as a result of the
Respondent’s unlawful changes in policy described in
paragraph 2(d), as prescribed in the manner set forth
in Ogle Protection Service, 183 NLRB 682, 683
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with inter-
est as computed in New Horizons for the Retarded,
supra.
(f) Rescind the employee handbook issued Decem-
ber 13, 1991.
(g) On request, bargain with the Union concerning
all proposed changes in terms and conditions of em-
ployment of the employees in the appropriate unit.
(h) Post at its facility in Nashville, Tennessee, cop-
ies of the attached notice marked ‘‘Appendix.’’12 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 26, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten you with loss of benefits be-
cause you engage in union or other protected activity.
WE WILL NOT threaten you with business closure
and loss of employment because you engage in union
or other protected activity.
WE WILL NOT inform you that you cannot file griev-
ances or be represented by the Union if you are not
members of the Union.
WE WILL NOT tell you that you will not receive ad-
ditional benefits or be able to work on certain jobsites
unless you join the Union.
WE WILL NOT promise you benefits if you refrain
from engaging in union or other protected activity.
WE WILL NOT assist the Union by requiring you to
join the Union in order to be eligible for three addi-
369TEL DATA CORP.
1 Frederick filed a charge and amended charge on January 30 and
February 10, 1992, respectively. Scott filed a charge on March 9,
1992, and Anderson filed a charge on March 25, 1992.
tional holidays and to be able to work on certain
jobsites.
WE WILL NOT assist the Union by paying your union
dues out of our own funds without deducting the
amount of the dues from your wages.
WE WILL NOT issue employee handbooks to you be-
cause you engage in union or other protected activity.
WE WILL NOT discharge, issue disciplinary warnings
to, assign more onerous work to, or otherwise discrimi-
nate against any of you for supporting Local 3879,
Communications Workers of America, or any other
union.
WE WILL NOT restrict the use of company vehicles
by out-of-town employees on nonworktime because
you engage in union or other protected activity.
WE WILL NOT withdraw the use of company vehi-
cles from local employees for driving to and from our
facility because you engage in union or other protected
activity.
WE WILL NOT withdraw from out-of-town employ-
ees the option of claiming actual expenses in lieu of
per diem allowance because you engage in union or
other protected activity.
WE WILL NOT eliminate the on-call bonus pay for
local employees because you engage in union or other
protected activity.
WE WILL NOT restrict our policy regarding the use
of company telephone credit cards by employees work-
ing out of town because they engage in union or other
protected activity.
WE WILL NOT refuse to bargain with the Union as
the exclusive bargaining representative of the employ-
ees in the bargaining unit by making changes in the
terms and conditions of employment of such employ-
ees without first notifying the Union and affording it
an opportunity to bargain about such changes.
WE WILL NOT fail to continue in effect all of the
terms and conditions of employment prescribed in the
collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Dale Frederick and Sherry Scott im-
mediate and full reinstatement to their former jobs, or
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them,
with interest.
WE WILL remove from our files any reference to the
unlawful discharges and warning, and notify the em-
ployees in writing that this has been done and that the
discharges and warning will not be used against them
in any way.
WE WILL, on request by the Union, reinstate the
practice existing prior to November 18, 1991, with re-
spect to reimbursement for phone calls and the use of
company telephone credit cards for personal calls, the
practice existing prior to November 19 with respect to
out-of-town van use, and the practices existing prior to
December 13, 1991, with respect to call-in pay, the use
of company vehicles for commuting to and from work
by local employees, the use of company vehicles by
out-of-town employees on their nonworktime, the op-
tion of out-of-town employees to claim actual expenses
in lieu of per diem, and on-call bonus pay for local
employees.
WE WILL make you whole for any loss of earnings
or other benefits suffered as a result of our changes in
policy, with interest.
WE WILL rescind the employee handbook issued De-
cember 13, 1991.
WE WILL, on request, bargain with the Union con-
cerning all proposed changes in terms and conditions
of employment of the employees in the appropriate
unit.
TEL DATA CORPORATION
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. On
charges filed by Dale Frederick, Sherry J. Scott, and Russell
T. Anderson,1 the Regional Director for Region 26 of the
National Labor Relations Board (the Board) issued a com-
plaint and consolidated complaint on March 30 and April 20,
1992, respectively, alleging that Tel Data Corporation (the
Respondent) committed certain violations of Section 8(a)(1),
(2), (3), and (5) of the National Labor Relations Act (the
Act). The Respondent filed timely answers denying that it
had committed any violation of the Act.
A hearing was held in Nashville, Tennessee, on September
21 through 23 and October 5 and 6, 1992, at which all par-
ties were given a full opportunity to participate, to examine
and cross-examine witnesses, and to present other evidence
and argument. Briefs submitted on behalf of the General
Counsel and the Respondent have been given due consider-
ation. On the entire record and from my observation of the
demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent was a corporation
with an office and place of business in Nashville, Tennessee,
engaged in the installation and service of communications
equipment. During the 12-month period ending December
31, 1991, the Respondent, in the conduct of its business op-
370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Hereinafter, all dates are in 1991 unless otherwise indicated.
erations, provided services valued in excess of $50,000 di-
rectly to customers located outside the State of Tennessee
and purchased and received at its Nashville facility goods
valued in excess of $50,000 directly from points outside the
State of Tennessee. The Respondent admits, and I find, that
it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that at all times mate-
rial Local 3879, Communications Workers of America (the
Union), was a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is in the business of installing and servic-
ing telephone and other electronic communications systems
and equipment in the Nashville area and in other parts of the
country. During 1991,2 approximately 70 percent of its busi-
ness involved installations in Target Stores facilities under
construction at various sites throughout the country. In most
instances, out-of-town installation projects were handled by
two-man teams directed from Nashville without an onsite su-
pervisor.
Since 1979, the Respondent and the Union have been in-
volved in a bargaining relationship and have negotiated a se-
ries of collective-bargaining agreements for a unit consisting
of:
All apprentices, wiremen, installer-repairmen and senior
installer-repairmen, and excluding others and those ex-
empted under the National Labor Relations Act.
Each of the successive agreements contained a union-security
clause; however, up until December 1991, the employees
covered by these agreements did not sign checkoff authoriza-
tions, no dues were deducted from their pay, and their dues
were paid for them by the Respondent. Supervisors gave the
employees union identification cards which they were in-
structed were to be used to get on union jobsites. There is
no evidence that any unit employee was involved in the ne-
gotiation of any of the agreements. For at least the last 5
years prior to 1991, there were no union stewards appointed,
no grievances were filed, and there is no evidence any em-
ployee ever received a copy of a contract. In the spring of
1991, the Respondent decided to institute a drug testing pol-
icy and negotiated with the Union a memorandum of agree-
ment, effective June 1, which implemented the policy. At
about the same time, employee Russell Anderson obtained a
copy of the current collective-bargaining agreement from
Union President Jesse Parrish.
In October, employee Dale Frederick also obtained a copy
of the contract from Parrish. After reading it, Frederick felt
that the employees had not been receiving certain of the ben-
efits provided in the contract and contacted Parrish about it.
He came to Nashville over a weekend to discuss the contract
provisions with Parrish. He also showed the contract to some
of the company employees and urged them to contact Parrish
about it. Thereafter, Parrish wrote to the Respondent request-
ing a grievance meeting to discuss the disputed provisions,
which was held in early November. Parrish issued a report
concerning the results of the grievance meeting to the em-
ployees and no further action was taken.
B. The 8(a)(1) Allegations
1. Statements at the meeting on December 13
The evidence shows that for some time prior to December
1991 the Respondent did not strictly adhere to the provisions
of the collective-bargaining agreements then in effect. In
some instances it did not provide all of the benefits spelled
out in the contracts, but at the same time it provided certain
benefits not called for there. Following the November griev-
ance meeting, the Respondent determined that it was going
to follow the provisions of the contract. On December 13, it
so informed the employees at a meeting held in a Nashville
hotel. The complaint alleges that certain statements made at
that meeting by Company President John Griffin and Vice
President Phillip Tournaud violated Section 8(a)(1).
Russell Anderson testified that Griffin began the meeting
by telling how well the Company had done that year com-
pared to 1990 and explained the profit-sharing program. He
said that he knew that at least eight employees had contacted
the Union and that ‘‘since all this union crap has come up,’’
there were going to be some changes made. He said that
since the Union was being shoved down their throat, they
would adhere to the particulars of the contract. There were
a lot of things the Company had done that were not included
or bargained for that would no longer be done. Later in the
meeting Tournaud informed the employees that the Company
would no longer pay their union dues for them and they
would have to be deducted from their pay. He said that those
employees who signed dues-deduction authorizations would
be members of the Union and would get three more holidays
than those who did not. He also said that employees who
were not members of the Union could not be assigned to out-
of-town jobs that required union membership.
Dale Frederick testified that Griffin began by saying how
profitable the Company’s year had been, how wages had in-
creased that year, and discussing the profit-sharing plan. He
said that Griffin got upset and said if he had known about
‘‘the union stuff’’ he never would have started the plan. He
said that since the union contract had been shoved down
their throats they were definitely going to go by the contract.
He also said that he could close Teldata’s doors tomorrow,
fire everyone there, and reopen as a new company. When
Tournaud spoke he said they would have to sign dues-check-
off authorization forms because the Company would no
longer be paying their union dues. He said he wasn’t telling
anyone to sign but if they did not they might not be able
to work on an out-of-town job that was Union and they
would have to get someone who could. Tournaud said that
those who signed the authorizations would get three addi-
tional holidays and those who did not would not get them.
John Griffin testified that he began by discussing the
Company’s performance during the year and how well the
profit-sharing plan would do. He said that he told the em-
ployees that he knew the subject of the Union was on every-
one’s mind and that the Union was alleging that the Com-
pany was not doing certain things under the contract. He said
371TEL DATA CORP.
3 In her posthearing brief counsel for the General Counsel has
moved to amend the complaint to allege that the Respondent vio-
lated Sec. 8(a)(1) by conducting an unlawful poll by requiring em-
ployees who did not sign dues-deduction forms to sign a form in the
new employee handbook indicating they do not choose to join the
Union or have dues deducted. Although it is stated that the alleged
violation first became known when the handbook was produced at
the opening of the hearing pursuant to subpoena, it appears that the
employee handbook was available to the General Counsel before
issuance of the original complaint, which alleged, inter alia, that the
issuance of the handbook violated the Act. Moreover, I find no rea-
son why a motion to amend the complaint could not have been made
prior to the conclusion of the hearing and that under the cir-
cumstances it would be unfair to permit this amendment.
that he attempted to explain that while they might not have
done everything the contract said, on balance they had pro-
vided far more than a literal interpretation required. He said
that they could not have it both ways, they could not expect
the Company to do all these things outside the scope of the
contract and then press it to do everything that was in it.
From that day forward they would honor the contract to the
letter. He said he did not recall saying the contract was being
shoved down his throat, only, that if they were going to have
to honor the contract to the letter, don’t expect us to do all
these other things at the same time. He said he did not recall
making a statement about closing Teldata but did say that a
large portion of their work with Target Stores was union and
if they did not have a viable union relationship, they might
have to subcontract the union projects and that might result
in layoffs.
Phillip Tournaud testified that he spoke at the meeting
only in response to questions, that he was repeatedly asked
if employees should sign the checkoff authorization cards,
and that he told them everyone had to make his own deci-
sion. When asked about holidays, he told the employees that
those that were members of the Union would get the holi-
days the contract provided and nonmembers would continue
to get what they were getting. He was present when Griffin
spoke at the meeting, that he said only that they found that
they were not in full compliance with the contract on some
items, and that they would change in order to adhere to all
items of the contract. Griffin did not say anything about clos-
ing Teldata.
Analysis and Conclusions
I find that the credible and mutually corroborative testi-
mony of Anderson and Frederick establishes that Griffin told
the employees they were going to lose certain benefits the
Company was providing, apart from those specified in the
collective-bargaining agreement, because of the insistence
that it comply with all of the terms of the agreement, which
he characterized as shoving it down his throat. I also credit
the testimony of Frederick that Griffin told the employees
that he could fire them, close the Company, and reopen
under another name in retaliation for their protected activity.
Tournaud admitted telling the employees that they would get
additional holidays if they were members of the Union and
did not deny the credible testimony of Anderson and Fred-
erick that he said failure to join the Union would result in
their inability to work on certain union jobsites and replace-
ment by someone who could.
Griffin’s statement that the employees’ benefits would be
reduced because of the insistence on compliance with the
terms of the contract was clearly coercive and a violation of
Section 8(a)(1). Marcus Management, 292 NLRB 251, 262
(1989). His statement that he could close the business and
fire the employees was a blatant threat to retaliate against
them because they engaged in protected activity and violated
Section 8(a)(1). Almet, Inc., 305 NLRB 626, 634 (1991). The
rights of the employees protected by Section 7 of the Act in-
clude the right to refrain from union membership.
Tournaud’s comments that indicated failure to join the Union
would result in adverse consequences were coercive and
tended to interfere with those rights and violated Section
8(a)(1).
2. Statement by Steve Cowell
Dale Frederick testified that on the Monday following the
December 13 meeting, in order to prepare certain grievances
he intended to file, he telephoned Supervisor Steve Cowell
and asked several questions concerning provisions in the
contract he felt were being violated. He informed Cowell that
he was writing down the answers and would give them to
Parrish and they would have to meet about it. In response,
Cowell said that it did not have to go like this, that Frederick
didn’t need to do this, and that he did not need to keep this
up. Frederick said that he felt he did not have a choice but
to proceed with the grievances. Cowell said, if he stopped,
everything would get back to normal and they could end this.
Frederick said that he had told people he would finish this
and he was going to do so. Steve Cowell testified that he re-
membered the telephone conversation with Frederick on De-
cember 16 in which he was asked about the Company’s in-
terpretation of the contract, but that he did not recall telling
him that it doesn’t have to be this way and did not tell him
if he stopped things would get back to normal.
Analysis and Conclusions
I credit the testimony of Frederick as he appeared to have
a much better recollection of the conversation than Cowell
who said he could not say exactly what was said. Also, I
find that his answers to leading questions by counsel for the
Respondent, which did not exactly restate Frederick’s testi-
mony about what was said during the conversation, do not
contradict Frederick. By telling Frederick, in the context of
a discussion about grievances he was proposing to file, that
he should abandon the grievances and things would get back
to normal, Cowell was attempting to discourage Frederick
from engaging in protected activity in violation of Section
8(a)(1). Escada (USA), Inc., 304 NLRB 845, 850 (1991);
Ernst Enterprises, 289 NLRB 565, 566 (1988).3
C. The 8(a)(1) and (3) Allegations
1. Changes in working conditions
As noted above, after Parrish contacted the Respondent
about the employees’ complaints that it was not providing all
of the benefits provided for in the contract, it made a deci-
sion to stop certain noncontractual benefits it had been pro-
viding. The contract provided that employees working out of
town for more than 1 week could make telephone calls not
to exceed $6 per week at company expense. However, the
evidence establishes that, in practice, employees were told
372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Insofar as it is contended that issuance of the handbook imple-
mented a discriminatory change in working conditions by stating that
all employees were expected to do out-of-town work under certain
circumstances, I find the evidence does not establish this to be a ma-
terial and substantial change since it appears that all employees had
done such work at one time or another. With respect to the conten-
tion that it changed the policy concerning providing out-of-town em-
ployees with a paid trip home after 3 weeks, I find this was not a
change inasmuch as it was consistent with the Respondent’s position
in its dispute with the Union as to the correct interpretation of the
applicable contract provision.
that they could charge up to $40 of personal calls per month
and that they often exceeded that limit without being asked
for reimbursement. On November 12, the Respondent issued
a memo informing employees that, effective November 18,
company telephone credit cards could not be used to charge
personal calls and out-of-town employees would be allowed
to claim an allowance of $6 per week for such calls.
At the meeting on December 13, the employees were
given an employee handbook for the first time. Through the
handbook and announcements made at the meeting the em-
ployees were informed of certain policies which, it is alleged,
made changes in their working conditions. Effective January
1, 1992, the ‘‘on-call pay’’ of $118 per week for local em-
ployees who were on-call was abolished, local employees
were no longer allowed to drive company vehicles to and
from work, out-of-town employees could no longer claim ac-
tual expenses in lieu of the standard allowance of $51 per
day, employees were informed that all would be expected to
do out-of-town work, and out-of-town employees had to ob-
tain permission before driving a company vehicle out of the
immediate area of their job assignment. At the meeting the
employees were also told that there had been too much over-
time worked during 1991 and that it would be reduced in the
future.
Analysis and Conclusions
I find that the evidence does not establish that the Re-
spondent withdrew the use of company vans by out-of-town
employees on nonworkdays, as alleged in the complaint. As
will be discussed below in connection with the discharge of
Sherry Scott, I find the provisions in the handbook distrib-
uted on December 13 did not change the existing policy. I
find that the evidence does not establish that the statement
by Griffin at the December 13 meeting that there had been
too much overtime worked during the year and it was going
to have to stop was an act of discrimination. Apart from the
statement, which appears to have been made in the context
of a discussion the Company’s financial state and was unre-
lated to the announcement of changes in policy being made
as a result of the employees’ having complained to the
Union, there is nothing to establish that overtime was in fact
reduced or that it was done as an act of retaliation. I also
find that the issuance of the employee handbook, which
served to implement certain of the discriminatory changes
was not a separate violation of Section 8(a)(3).4
I do find that by rescinding the use of company telephone
credit cards for personal calls and reducing the amount of
personal calls for which employees could claim reimburse-
ment to $6 per week, by removing the use of company vans
by local employees traveling to and from work, by withdraw-
ing from out-of-town employees the option of claiming ac-
tual expenses instead of $51 per diem, and by eliminating
on-call bonus pay for on-call employees, the Respondent sig-
nificantly reduced benefits the employees had previously en-
joyed. At the meeting on December 13, Griffin informed the
employees that the Respondent was making these changes
because they had complained to the Union about its failure
to abide by the contract. The Respondent’s actions in making
these changes, for the reasons stated by Griffin, were inher-
ently discriminatory and violated Section 8(a)(1) and (3) of
the Act. Henry Vogt Machine Co., 251 NLRB 363, 364
(1980).
With respect to the changes in the policies relating to tele-
phone credit cards and the use of vans for local commuting,
the Respondent did attempt to show that they were motivated
by nondiscriminatory concerns; consequently, the evidence
must be considered according to the test outlined by the
Board in Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 800 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). Under Wright Line, the General Counsel
must make a prima facie showing sufficient to support the
inference that protected conduct was a motivating factor in
the Employer’s decision. Once that is done, the burden shifts
to the Respondent to demonstrate that it would have taken
the same action even in the absence of protected conduct on
the part of its employees.
The record contains clear evidence of union animus on the
part of the Respondent. In addition to the violations of Sec-
tion 8(a)(1) found here, the evidence establishes that in June,
during negotiations over the Respondent’s attempt to institute
a new drug testing policy, Tournaud asked Parrish if Russell
Anderson had ‘‘instigated all this shit,’’ meaning, getting the
Union involved and when Parrish said he was considering
making Anderson a union steward, Tournaud threatened to
fire him if he was appointed. In April or May, Supervisor
Cowell told employee Neal Ingram that Anderson had put
his job in jeopardy by making a complaint to the Union.
There was credible testimony from Nicki Scott, the wife of
employee Sherry Scott, that on an occasion when she had
come to pick up her husband at work she was conversing
with Tournaud and mentioned that her sister was a union
member. Tournaud said, ‘‘we don’t talk about unions around
here,’’ abruptly terminated their conversation, and walked
away.
The timing of an action can be persuasive evidence of an
employer’s motivation. Limestone Apparel Corp., 255 NLRB
722, 736 (1981). The change in the telephone credit card pol-
icy took effect shortly after the November 1 grievance meet-
ing concerning the Respondent’s alleged failure to comply
with all aspects of the contract. The change in policy con-
cerning the use of company vans by Nashville employees
was announced on December 13 along with the other policy
changes which the Respondent attributed to the Union’s in-
sistence on full compliance with the contract. I find the evi-
dence is sufficient to create an inference that these policy
changes were motivated by the Respondent’s desire to retali-
ate against the employees for seeking to obtain full compli-
ance with the contract.
While not discussed in its posthearing brief, the Respond-
ent denies having committed any violation of Section 8(a)(3)
and apparently contends that its changes in policy were eco-
nomically motivated. Griffin testified that, during a manage-
373TEL DATA CORP.
ment retreat in October, he became aware that employees
were making a large number of credit card calls. When he
returned to the office he reviewed the recent bills and was
‘‘astounded at the volume of calls.’’ At the grievance meet-
ing on November 1, he mentioned this to the union rep-
resentatives and told them that it had to stop, that the con-
tract specified $6 per week for personal calls, and that if the
Company had to adhere to the terms of the contract so did
the employees. A memorandum, dated November 12, was
issued to all credit card holders informing them that com-
pany credit cards could only be used for business purposes
and that the Company would pay an allowance of $6 for
calls made by out-of-town employees. Although in his testi-
mony Griffin referred to an analysis of the employees’ tele-
phone charges he had done by an independent accountant, it
was not completed until after the credit card policy was
changed and could have had no bearing on the Respondent’s
decision. There was evidence that on occasions prior to Oc-
tober, the Respondent had determined that certain employees
had been guilty of exceeding the $40 per month limit on
telephone credit card charges; however, the policy was not
changed, none was required to repay the excess, and the only
disciplinary action taken was that, in at least one instance,
an employee’s card was taken away. I find the evidence fails
to establish that the telephone credit card policy was changed
for any reason other than that which Griffin informed the
union representatives on November 1, viz, that if the em-
ployees insisted on the Respondent complying with the con-
tract, any additional benefits it was providing would be re-
voked.
The Respondent apparently contends that permitting local
employees to drive company vans to and from work was not
meant to be a benefit to them. Whether it was intended to
be or not, allowing the employees to do so it was beneficial
to them and they obviously considered it so. Griffin gave tes-
timony about being concerned about being liable for work-
men’s compensation claims by employees who were driving
company vans home at night. However, the correspondence
with the insurance carrier he referred to in this regard oc-
curred in July and August, but no action was taken to change
the policy until December, when the Respondent announced
its other retaliatory changes in policy. In addition there was
evidence that after the alleged change in policy, employee
Jim Quinn, who had declared his opposition to union rep-
resentation at the December 13 meeting, was permitted to
continue to use a company van to commute to and from
work. I find that the Respondent has failed to establish that
it would have taken the same action in changing its policy
concerning van use by Nashville employees in the absence
of its employees’ engaging in protected activity. I find both
of these changes in policy by the Respondent which in effect
revoked benefits enjoyed by its employees were motivated
by its desire to retaliate against the employees for engaging
in protected activity and violated Section 8(a)(3) of the Act.
Equitable Gas Co., 303 NLRB 925, 927–929 (1991); Lowe
Paper Co., 302 NLRB 622 (1991).
2. Sherry J. Scott
Sherry Scott was hired by the Respondent in September
1988 to work as an installer in Target Stores facilities
throughout the country. He testified that when he was hired
he was given a Communications Workers of America
(CWA) application which he filled out except for the portion
relating to dues deduction. On his second or third day on the
job he was given a union card and he received a new card
every year. He was told by Cowell that he was to show the
card on jobsites if anyone asked to see it. At no time during
his employment with the Respondent were union dues de-
ducted from his wages. He was given a company van to use
when working on out-of-town jobs and was allowed to use
it for a reasonable amount of personal use on weekends.
Scott testified that he had previously worked for several
years for South Central Bell whose employees were rep-
resented by the CWA and that he had served as a local union
president at his hometown of Houma, Louisiana. He knew
that he was applying for membership in the Union when he
filled out the application when he started with the Respond-
ent and he suspected there was a union contract in existence
but he made no effort to obtain a copy. He said that he was
told by other employees that a union was not a subject to
be discussed at Teldata and doing so could cost him his job.
In the summer of 1991, he contacted Jesse Parrish and re-
quested a copy of the contract.
In November 1991, Scott was working in Jacksonville,
Florida, and had a company van with him. He finished the
job on Friday, November 15, and left on a long scheduled
2-week vacation. He drove the company van, which con-
tained in excess of $20,000 of company equipment, to Myrtle
Beach, South Carolina, where on the following day he was
involved in a traffic accident. Scott testified that he tele-
phoned Cowell at his home and reported the accident. After
being told the details of the accident, Cowell told him not
to worry about it and to call Office Manager Joyce Legieza
on Monday and to mail her copies of the accident reports.
Scott did so and after a week in Myrtle Beach drove the van
to his home in Louisiana. He had no further contact with the
Company until November 25 when he telephoned Legieza to
inquire why his expense check had not been deposited in his
bank account. Cowell got on the line and told him he was
terminated for unauthorized use of a company vehicle. Scott
said he asked Cowell if his discharge had ‘‘anything to do
with the turmoil the Company was having with Dale and the
Union.’’ Cowell said ‘‘absolutely not.’’
Scott testified that he filed a grievance over the discharge
and he and Parrish met with Cowell, Tournaud, and Super-
visor Ricky Nelson on December 9. It was Scott’s position
that he was discharged for unauthorized use of a company
vehicle while other employees were doing the same thing
without disciplinary action being taken, that he was not
aware that he had done anything wrong, and that he tried to
get other employees working in Florida to take the van so
that it would be secure but they refused. The result of the
meeting was that Tournaud said that the Company stood by
the termination. After the meeting ended, Scott, Parrish, and
Tournaud met outside the building for about 35 minutes.
Scott told Tournaud he felt his firing was unjust and tried
to work something out to get his job back. He testified that
Tournaud said that Scott’s relationship with Dale Frederick
was ‘‘definitely a sore point with him’’ and that he was real-
ly upset that Scott had given Frederick information about
who to contact at the Union to file grievances. They also
talked about what would be acceptable to Scott. That after-
noon he received a telephone call from Parrish who asked
him to return to Teldata for another meeting with Tournaud.
When they met, Tournaud offered to reinstate him after a 7-
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
week suspension without pay, but he would also have to sign
a letter stating he was totally wrong in what he did and that
he was apologizing to the Company. Tournaud said that ‘‘the
letter would help him put a stop to the activities at Teldata’’
and would ‘‘make an example’’ of Scott. He said Tournaud
again mentioned his association with Frederick and said
while I couldn’t tell him not to talk to him, ‘‘it would be-
hoove’’ him not to. Scott wanted to discuss the proposal with
his wife before making a decision. The next morning he tele-
phoned Parrish and told him he would not sign the letter
Tournaud wanted and that the 7-week suspension was exces-
sive. Parrish was unhappy and told him he should accept it
but he refused and said he would like to see his case taken
to arbitration.
The complaint alleges that the Respondent’s termination of
Scott was discriminatory and in violation of Section 8(a)(1)
and (3) of the Act and that certain statements allegedly made
by Tournaud violated Section 8(a)(1). Counsel for the Gen-
eral Counsel contends that the Respondent discharged Scott
for a violation of a vehicle-use policy that was not in exist-
ence at the time of the incident but was thereafter invented
and retroactively applied in order to retaliate against Scott
because of his assistance to Frederick in obtaining a copy of
the union contract in the summer of 1991.
Analysis and Conclusions
I find that the evidence presented by the General Counsel
fails to establish a prima facie case of discrimination against
Scott under Wright Line, supra, and that if it does, the Re-
spondent has shown that it would have taken the same action
even in the absence of protected activity on the part of its
employees. A written statement concerning the Respondent’s
policy on the use of company vans while on out-of-town job
assignments was included in the employee handbook distrib-
uted at the meeting on December 13. While, as discussed
above, I have found that several of the policy changes an-
nounced at that meeting and/or included in the handbook
were discriminatory, I have concluded that the policy con-
cerning out-of-town van use was neither changed nor dis-
criminatory. Contrary to the contentions of Scott and counsel
for the General Counsel, the evidence does not establish that
the Respondent changed its policy concerning van use in
order to facilitate its termination of Scott or to retaliate
against its employees.
The evidence shows that employees working on out-of-
town assignments had the use of a company van which they
were permitted to use during nonworking hours and on
weekends. Prior to November, the Respondent had no written
policy concerning the use of these vans. The testimony of
various employees and supervisors establishes that the em-
ployees were given oral instructions which authorized them
to use the vans within a 200- to 300-mile area of their work
assignment on weekends without obtaining a supervisor’s
specific permission. There was testimony about several in-
stances in which employees used the vans while on vacation
or over holidays and that, when requested, permission for
such use was freely granted, but there is nothing to establish
or even suggest that out-of-town employees had unlimited
use of the vans for personal use. The incidents described
generally involved an employee who took leave in between
out-of-town job assignments or used the vans with the
knowledge, if not the specific authorization, of his super-
visor. In the handbook that was distributed to the employees
on December 13, there is a memorandum, dated November
19, 1992, in which the Respondent’s policy concerning the
use of vans on out-of-town jobs is set forth. It provides, inter
alia, that employees may use the vans for personal purposes
during nonworking hours and weekends and may drive them
‘‘a reasonable distance’’ from the jobsites. What constitutes
‘‘a reasonable distance’’ is said to depend on the particular
location and ‘‘reasonable judgment’’ is to be exercised. In
case of doubt, employees are instructed to contact a super-
visor to determine what the Company considers reasonable.
The memorandum provides that use of the vans other than
in accordance with this policy requires advance approval
from the employee’s supervisor. I find that the evidence fails
to establish that this written policy differs in any significant
respect from the unwritten policy under which the Company
had previously operated for a number of years. I also find
there is nothing to indicate that the policy is more restrictive
than it had been or that it deprives the employees of any
benefit they previously enjoyed. Accordingly, I find that
issuance of the written policy concerning the use of vans on
out-of-town job assignments was not discriminatory or meant
to retaliate against the employees for engaging in protected
activity and did not violate Section 8(a)(3).
In order to make out a prima facie case under Wright Line,
counsel for the General Counsel must establish that the al-
leged discriminatee engaged in protected activity, that the
employer was aware of that activity, and that the adverse ac-
tion taken by the employer was motivated by union animus.
United Broadcasting Co. of New Hampshire, 253 NLRB 697,
703 (1980). I find that none of these elements have been es-
tablished in this case. Although he had previously been a
member and a local officer in the CWA and was aware at
the time he started with the Respondent that its employees
were represented by the Union, there is no credible evidence
that Scott actively engaged in protected activity prior to his
discharge. According to his testimony the only thing he ever
did related to the Union was obtaining a copy of the collec-
tive-bargaining agreement from Parrish sometime in August
1991. He also claimed to have told Dale Frederick how he
could get information about the Union while they were work-
ing together on a jobsite in New York, but told Frederick
that he wanted ‘‘to be kept out of it.’’ The testimony of
Frederick establishes only that he and Scott had discussed
getting a copy of the contract from Parrish after Scott got
one. Although Scott testified that he got a copy of the con-
tract in August, Frederick testified that he never saw a copy
until he got one from Parrish in October, indicating that
Scott did not even go so far as to show Frederick his copy
of the contract.
Apparently recognizing that his minimal activity relating
to the Union could not reasonably have made him a target
for threats and retaliation by the Respondent and that there
was no evidence of any kind that the Respondent was aware
of his activity, in his testimony, Scott attempted to ally him-
self with Frederick, the employee who had contacted the
Union and generated the grievance over the alleged failure
to comply with the contract and who informed the Respond-
ent of his activities at the December 13 meeting. In addition
to his testimony about Tournaud’s criticizing him for assist-
ing Frederick at the grievance meeting in December, Scott
also claimed that in November, shortly before his termi-
375TEL DATA CORP.
5 The alleged requirement that Scott sign a letter of apology and
help put a stop to the union activity among the employees was ap-
parently conjured up by Scott to offset the undeniable fact that the
Respondent expressed its willingness to reinstate him.
6 Further undermining Scott’s credibility was the testimony of Nel-
son that, at the grievance meeting in December, Scott claimed that
Nelson had given him permission to take the van to Myrtle Beach.
Nelson credibly denied doing so.
nation, while working in Florida with employee Keith
Bolton, they were signaled on a company pager. Bolton
called the office from a pay phone at a rest stop and spoke
with Tournaud while Scott was standing beside him. When
Bolton got off the phone he told Scott the best thing he
could do was stop giving Frederick information about the
Union. He went on to testify that this was not in fact a mes-
sage from Tournaud, but Bolton’s own advice to him and
that what Bolton did relay to him from Tournaud was the
statement that ‘‘heads were going to roll.’’ I find that Scott’s
testimony about these incidents was fabricated. His testimony
was incredible, self-serving in the extreme, completely lack-
ing in corroboration, and refuted by credible testimony and
documentary evidence.
I find it incredible that Scott claims to have asked Cowell,
during the conversation in which he was informed of his ter-
mination, if it was related to the turmoil the Company was
having with Frederick and the Union. At that point, Fred-
erick had not identified himself as the instigator of the griev-
ance over noncompliance with the contract and there was
nothing to suggest that the Company suspected he was in-
volved. Yet Scott, who was allegedly so fearful of company
retaliation that he didn’t want anyone to know he had dis-
cussed the contract with Frederick, blithely referred to Fred-
erick as the source of the union turmoil in a conversation
with a supervisor. The credible testimony of Cowell was that
Scott asked if his termination was ‘‘because of the union ac-
tivity,’’ but did not mention Frederick. The two incidents in
which Scott claims he was threatened by Tournaud for assist-
ing Frederick were witnessed by third parties, but neither
corroborated his testimony. Keith Bolton was called as a wit-
ness by the Respondent and testified about the telephone call
to Tournaud from the rest stop in Florida. Bolton credibly
testified that Tournaud did not mention Scott or Frederick
during the conversation and did not say that ‘‘heads would
roll.’’ Tournaud denied talking to Scott about Frederick
and/or the Union and telling him he would be required to
write a letter of apology in order to be reinstated. Union
President Jesse Parrish was present throughout the grievance
meetings on December 9 and testified in detail about what
transpired. He made no mention of any statements by
Tournaud indicating that he was unhappy with Scott for giv-
ing Frederick information about the Union, telling him it
would behoove him not to do so, or requiring Scott to write
a letter of apology which would make an example of him
and help put a stop to the union activity at the Company.5
It strains credulity that Tournaud would make such state-
ments in front of a union official, but even more so that Par-
rish would not remember them or refer to them in his testi-
mony. A letter that Parrish wrote to a CWA official on De-
cember 12 concerning arbitration of Scott’s grievance, which
summarizes the grievance proceedings, is in evidence and it
makes no mention of any such statements or demands by
Tournaud.
I find that the evidence fails to establish that Scott had en-
gaged in any significant protected activity prior to his termi-
nation or that the Respondent had any knowledge of any
such activity on his part, specifically, any knowledge that he
had given Frederick information concerning the Union. It
also fails to establish or support an inference that protected
activity on the part of Scott or any other employee was a
consideration in its decision to discipline Scott. Despite the
evidence that other employees had used company vans while
on vacation or for other personal use, there was nothing to
establish that the Respondent had ever knowingly condoned
the kind of use Scott engaged in or that he had reason to
believe it was authorized. On the contrary, Keith Bolton
credibly testified that prior to going on his vacation Scott
commented to him that he knew he wasn’t supposed to take
the van on vacation but that the Company wouldn’t know
where the van was and the only way he could get in trouble
was if he wrecked it. Scott’s actions prior to going on vaca-
tion were consistent with that view. Although he seemed to
imply that he had no choice but to take the van with him
because there was valuable equipment in it and the other
company employees working in Florida wouldn’t take care
of it for him, I did not believe him. It is undisputed that he
made no effort to contact any supervisor in Nashville to ob-
tain permission to take the van to South Carolina or to ar-
range for it or the equipment to be taken by the employees
in Florida. While he claimed he did not contact his imme-
diate supervisor, Cowell, prior to leaving because he was on
vacation, Scott contacted him at home on Saturday imme-
diately after he had the accident. Prior to leaving Florida, he
spoke by telephone with Ricky Nelson, under whose super-
vision he said he was working that week, to tell him that the
job was completed. He said that he mentioned that he was
leaving for South Carolina and Nelson told him to have a
good time. He also said he told Nelson that he was driving
to South Carolina but did not tell him he was driving a com-
pany van and there was no discussion about the use of the
van or the equipment he had in it.6 Nelson, in his testimony
about this conversation, testified that he was not Scott’s su-
pervisor but did ‘‘troubleshooting’’ with any employee that
needed assistance, that Cowell was present at the Teldata fa-
cility at the time of the conversation, but that he did not re-
member if Scott spoke to him. Cowell testified that storage
of equipment should not have been a problem because the
Company had several storage facilities available in Florida.
He also testified that while he knew that Scott was scheduled
to go on vacation he did not know where Scott was going
and did not know where he was until Scott called him to re-
port the accident.
Cowell testified that when he spoke to Scott on the Satur-
day of the accident, he told him to send in the accident re-
ports to the accounting manager and to call him on Monday
to discuss the situation. When Scott called on Monday,
Cowell was at lunch. The accounting manager told Scott to
call back, but he did not do so. When Cowell finally heard
from Scott a week later, he informed him that he was dis-
charged for unauthorized use of a company vehicle, taking
it 750 miles from where it was supposed to be without per-
mission. Cowell credibly denied having any knowledge of
any union activity on Scott’s part before terminating him. He
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 It appears that Scott exaggerated the length of the suspension,
claiming it amounted to 7 weeks without pay. The evidence shows
he would have been suspended a maximum of 4-1/2 weeks, from
November 30, 1991, to January 2, 1992.
also testified that before making his decision he checked
with Nelson to be sure that he had not given Scott permis-
sion to take the van on the trip to South Carolina.
It is clear that an employer can discharge an employee for
a good reason, a bad reason, or no reason at all so long as
it does not do so for an unlawful reason. Wright Line, supra
at 1084. There is evidence here that prior to November the
Respondent had a kind of ‘‘don’t ask, don’t tell’’ policy with
respect to personal use of company vans by out-of-town em-
ployees. They were permitted a certain amount of latitude in
using the vans during nonworking hours and weekends but
it was not unlimited. The evidence indicates that Scott under-
stood that he was going beyond what was considered reason-
able in taking the van from Florida to Myrtle Beach, South
Carolina, but as he stated to Bolton, it was unlikely that the
Respondent would ever find out about it unless he had a
wreck. Unfortunately for him, that is exactly what happened.
Not only did Scott have an accident, he ignored his super-
visor’s instructions to contact him to discuss the situation the
following Monday and remained out of touch for another
week while driving the van to his home in Louisiana. While
the Respondent may have acted harshly in discharging him
(as its later offer to reduce the discipline to a suspension ap-
pears to indicate), it was not totally unreasonable or unjusti-
fied in doing so.7 While the fact that this discharge came
within a month of the first indications of employee unhappi-
ness with the Respondent’s failure to fully comply with the
terms of the contract might raise some suspicion, suspicion
alone does not prove a violation of the Act. Raysel-Ide, Inc.,
284 NLRB 879, 880 (1987). I find there is a complete lack
of credible evidence that the Respondent had knowledge of
any union or other protected activity on Scott’s part; thus,
there is no reasonable basis on which to conclude that he
was discharged for engaging in such activities. I also find
that the credible evidence fails to establish Tournaud made
the threats attributed to him by Scott, either through Bolton
in a telephone call in November or in person at the grievance
meetings on December 9. Accordingly, I shall recommend
that all of these allegations be dismissed.
3. Dale Frederick
Dale Frederick was employed by the Respondent for 9-1/2
years as an installer of telephone systems. He worked out of
town approximately 95 percent of the time. Frederick testi-
fied that within 6 months of his employment with the Re-
spondent he was given a union identification card by
Tournaud who told him that the Company was not ‘‘union’’
and that he should show the card if he needed to at jobsites.
Frederick said that during the first 9 years of his employment
he never had any union dues deducted from his pay, he was
never contacted by nor received any communications from
any representative of the Union, he never received a copy
nor participated in the ratification of any contract between
the Respondent and the Union, and never heard that there
was a union steward at the Company.
Frederick testified that he got a copy of the contract in Oc-
tober. As noted above, once he read the contract and dis-
cussed it with other employees, they felt that they were not
getting all of the benefits it provided. This led to their con-
tacting Parrish who filed the grievance. At the employees’
meeting on December 13, Frederick informed Griffin that he
was one of the employees who had contacted the Union. It
was on the Monday following that meeting that Frederick
had the telephone conversation in which Cowell tried to dis-
suade him from filing additional grievances.
On January 21, 1993, while working in Minneapolis, Fred-
erick was informed by Cowell that he should return to Nash-
ville. When he arrived at the company office on January 23,
he met with Cowell and Tournaud. Cowell showed him a
five-page list of telephone charges and told him that he was
being terminated for unauthorized personal use of his com-
pany credit card. The Respondent issued a written reprimand
to Frederick, dated January 3, 1992, for excessive personal
use of his telephone credit card during the months of August,
September, and October 1991. The reprimand states that
Frederick had an average of $96 in calls for those months.
It also states that the contract limits such calls to $6 per
week and that only employees who exceeded $60 per month
were being reprimanded. Frederick testified that the rep-
rimand was sent to his home in Michigan, that it was re-
ceived on January 18, and that he did not see it until after
his discharge.
Tournaud testified that he had heard rumors or hearsay in
November and December 1991 that Frederick was one of the
employees concerned about the Respondent’s contract com-
pliance. Nelson testified that on several occasions during that
time period he heard Tournaud talk about employees who
were attempting to enforce the contract. On one of those oc-
casions, Tournaud referred to Frederick as an instigator of
the employees and said, ‘‘Dale would be history.’’ He also
heard Tournaud say that the employees should not complain
because they didn’t pay union dues. Nelson also testified that
around the same time he heard Cowell say in reference to
Frederick, ‘‘I can’t help him, he’s gone to the union, his
days are numbered.’’
Cowell testified that he made the recommendation that
Frederick be terminated because he was guilty of a flagrant
violation of the Respondent’s new policy prohibiting using
company telephone credit cards for personal calls. He exam-
ined the Company’s credit card bill which ran through De-
cember 28 and determined that Frederick had charged $57.16
in personal calls during the period covered by that bill.
Cowell testified that it was obvious to him that Frederick
was aware of the new policy because he complied with it by
claiming the $6 allowance provided in the contract on his ex-
pense voucher for the week ended November 22, the first
week the new policy was in effect. The following week he
did not claim the $6 allowance and charged personal calls on
the credit card. Thereafter, he used the credit card for per-
sonal calls but continued to claim the $6 weekly allowance
for calls on his expense vouchers for the weeks ended Janu-
ary 5, 12, and 19, 1992. According to Cowell, the amount
of the personal calls Frederick charged on the credit card was
totally irrelevant. It was the fact that he understood the pol-
icy and then flagrantly violated it that led him to recommend
termination, the only disciplinary option he considered.
377TEL DATA CORP.
Analysis and Conclusions
I credit the testimony of Nelson, who was a believable and
persuasive witness, over the denials by Cowell and Tournaud
that they had stated that the fact Frederick had gone to the
Union meant he was ‘‘history’’ and beyond help. While Nel-
son candidly admitted he was a good friend of Frederick, as
a supervisor still in the Respondent’s employ at the time of
his testimony, there is simply no reason to believe that he
would fabricate testimony against his employer’s interests no
matter how strong their friendship may have been. Harrah’s
Marina Hotel & Casino, 296 NLRB 1116, 1118 (1989). This
testimony indicates that the Respondent had decided to get
rid of Frederick, that his alleged violation of the credit card
policy was the first excuse it had to do so, and that its reli-
ance on it was a pretext. The Board requires an analysis of
the evidence under Wright Line, supra, even where the em-
ployer’s reasons for its actions are found to be pretextual.
Bridgeway Oldsmobile, 281 NLRB 1246 fn. 2 (1986); Jeffer-
son Electric Co., 271 NLRB 1089, 1090 (1984).
I find the evidence clearly supports the inference that
Frederick’s protected activity was a motivating factor in the
Respondent’s decisions to reprimand and to terminate him.
There is ample evidence of union animus on its part. The
fact that the disciplinary actions followed almost immediately
after Frederick informed the Respondent’s president that he
was responsible for going to the Union about its failure to
comply with the contract is persuasive evidence that his pro-
tected activity and the disciplinary actions taken against him
were related. Limestone Apparel Corp., supra. The fact that
Frederick had openly avowed his support for the Union in
a meeting at which all employees were present made him a
likely target for retaliation.
I also find that the Respondent has not proved that it
would have taken the same action in the absence of protected
activity on Frederick’s part. Although Cowell testified that
his investigation involved checking on the calls in order to
assure himself that the calls were personal and not business-
related, he never talked to Frederick about them before the
decision was made to terminate him. The Board has consid-
ered an employer’s failure to provide employees with spe-
cific information concerning their alleged misconduct or to
afford them an opportunity to explain their actions to be sig-
nificant factors in findings of discriminatory motivation. E.g.,
Burger King Corp., 279 NLRB 227, 239 (1986); Syncro
Corp., 234 NLRB 550, 551 (1978). This is particularly true
here where a long-time employee with no history of discipli-
nary problems is summarily dismissed. Among those which
Cowell considered personal were calls to Nelson and to one
of the Respondent’s Florida jobsites. He said he contacted
Nelson and Keith Bolton, who was at the Florida jobsite,
about these calls in order to determine if the were business-
related or personal but not Frederick. I find the Respondent’s
approach more consistent with fulfilling its prophesy, that be-
cause Frederick had gone to the Union he was ‘‘history,’’
than with an even-handed effort to find out if Frederick had
violated its credit card policy and, if so, whether he had an
explanation for doing so. It is also in stark contrast to its
treatment of other employees.
Employees Jim Quinn and Scott Burr each made a per-
sonal call to his respective residence and charged it to his
company credit card after the new policy was announced.
According to Cowell, they were ‘‘under the impression’’ that
they could do so. He learned this ‘‘by discussing it with
them.’’ They were given warnings and no further disciplinary
action was taken. Quinn had spoken out against the Union
at the employees’ meeting on December 13. Cowell testified
that an employee named Green had also charged a personal
call to his credit card. He was given a warning and asked
to pay the cost of the call as Cowell determined after dis-
cussing it with him that ‘‘it was a mistake.’’
It also appears that Frederick was the only employee
whose calls Cowell checked out by calling the numbers list-
ed on the bill in order to determine if they were personal
calls. When questioned about Frederick’s calls, Cowell said
that there was no need for any employee to contact another
employee at a different jobsite as Frederick had apparently
done; therefore, the call was ‘‘personal.’’ When questioned
about calls placed by employee Kerry Bolton from one Flor-
ida jobsite to another, Cowell said he had no reason to inves-
tigate them because ‘‘everyone knew that was business relat-
ed.’’ Burr made calls to a supervisor’s home after business
hours and unlike Frederick’s calls to Supervisor Nelson,
Cowell found it unnecessary to investigate the purpose of
these calls. Burr called a jobsite in Columbus, Ohio, from the
jobsite where he was working in Grand Rapids, Michigan.
According to Cowell, ‘‘that’s not unusual’’ and he presumed
it was business and made no investigation of the call. On
December 11, Danny Smith charged a call from his home in
Tennessee to a location in the State of Washington. Cowell
could not recall if he investigated that call. Between Decem-
ber 9 and 11, employee Thierry Goavec charged eight calls
to numbers in Nashville, Seattle, and Cedar Rapids, Iowa,
from Dubuque, Iowa. Cowell said the Nashville calls were
all business calls but he had no explanation for the Seattle
calls and could not remember if he investigated them. Cowell
was asked about calls charged by Quinn and Burr on a bill
received after they had been given warnings for charging
personal calls in January 1992. Several calls were made after
working hours but Cowell said he could not say if he had
investigated these calls or if he had talked to the employees
about them. He gave the same response when questioned
about other calls by Bolton and Goavec. The evidence indi-
cates that Frederick’s calls were singled out for closer
scutiny than any other employee and that once he was termi-
nated, Cowell stopped routinely investigating employees’
telephone charges.
There was evidence that the Respondent discharged em-
ployee Mark Foster in December 1991 for violating its pre-
vious policy concerning credit card use. According to
Cowell, Foster had intentionally violated the policy by allow-
ing other people to use his card number. However, Foster
had been found to have committed a similar violation 2 years
earlier when he let his mother and sister use his card. At that
time, Cowell had removed his card, but he continued to work
for the Respondent. In December 1991, Cowell ‘‘sat him
down’’ and ‘‘went through the scenario’’ with Foster, who
admitted to the unauthorized charges, before he was dis-
charged. Unlike Foster, Frederick not only did not get a sec-
ond chance after having been found by Cowell to have inten-
tionally violated the Respondent’s policy, he did not get a
chance to go through the scenario before being fired. All of
this disparate treatment constitutes evidence of discriminatory
motivation. Aratex Services, 300 NLRB 115, 126–127
(1990); P.B. & S. Chemical Co., 300 NLRB 764, 770 (1990).
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I find that the Respondent has not established that it would
have taken the same action in discharging Frederick in the
absence of protected activity on his part. On the contrary, the
evidence as a whole convinces me that the Respondent de-
cided to make an example of Frederick for having the temer-
ity to insist that it honor all of the terms of the collective-
bargaining agreement it had agreed to. This clearly incensed
its top management which seized on the first opportunity
available to punish him for doing so. I have given no consid-
eration to the evidence offered by the Respondent concerning
Frederick’s alleged falsification of a payroll timesheet be-
cause the Respondent has admitted that it had no knowledge
of this matter when it made its decision to discharge him and
did not enter into its considerations. The only issue here is
its motivation at the time it made its decision. I find that the
discharge was motivated by union animus and violated Sec-
tion 8(a)(3).
I also find that the warning given Frederick, dated January
3, 1992, for excessive personal telephone credit card charges
arose out of the Union’s raising the issue of noncompliance
with the contract in October 1991. The Respondent had per-
mitted the employees to use their cards for personal calls for
an extended period without regard to the provisions of the
contract. I have found that its change in it telephone credit
card and other policies following the Union’s grievance in
October was intended to retaliate against its employees in
violation of the Act. This warning was a direct result of
those unlawful changes and violated Section 8(a)(3).
4. Russell Anderson
Anderson was employed by the Respondent from April
1990 until he resigned in May 1992. He testified that he was
hired to do installation and repair work for customers in the
Nashville area and at the time he was hired the possibility
of out-of-town work was not discussed. He testified that he
was 1 of 4 employees who worked in the Nashville area,
while between 20 and 30 worked out of town primarily on
Target Stores installations. He said that on two occasions he
had worked on out-of-town jobs of 2 days or less and that
in October 1990 he was assigned to an installation job in
Chicago which lasted for 4 weeks and later required another
week. At the time he was given that assignment, Supervisor
Jeff Looney told him that a regular out-of-town employee,
Thierry Goavec, had been injured and he was needed as a
replacement.
Following the December 13 meeting at which the Re-
spondent implemented certain changes in policy affecting
local employees, Anderson and employee Mike Brown filed
a grievance. A meeting was held on the grievance at the Re-
spondent’s facility on January 17, 1992. Tournaud rep-
resented the Company and Parrish was present with Ander-
son and Brown. Tournaud asked Parrish whether Brown was
a member of the Union. Parrish responded that it did not
matter, but Tournaud insisted that if Brown was not a mem-
ber of the Union the contract did not apply to him and he
had no right to file a grievance. Tournaud contended that
Brown could not be a member of the Union because he was
not having dues deducted; however, it was explained that
Brown had paid his dues directly to the Union, not by pay-
roll deduction. The grievance was denied and no further ac-
tion has been taken on it.
Anderson testified that on February 14, 1992, he was con-
tacted by employee Art Lofton and told that Cowell had
asked him to tell Anderson that he was being assigned to an
out-of-town job the following week. When he reported for
work on Monday, February 17, Cowell told him he would
be doing a job in the Minneapolis area that would last sev-
eral weeks. Anderson protested that such an assignment
would interfere with his child visitation obligations which re-
quired him to be in Atlanta once a month and that when he
was hired it was with the understanding that he would do
local service which would enable him to meet those obliga-
tions. Cowell responded that the Company could not cater to
everyone’s personal life and that there was nothing he could
do about it. They discussed the fact that the job involved
entry-level work pulling cable and Cowell expressed dis-
satisfaction with having to do the job at Anderson’s higher
rate of pay but that he had no choice. Anderson asked if he
was going to be provided with a paid trip home after 3
weeks and Cowell said he would have to ask Tournaud to
whom all union matters were being directed. Anderson ex-
pressed his displeasure about being sent out of town to
Tournaud who said nothing could be done about it. When he
asked if he would be provided a paid trip home after 3
weeks as provided in the contract, Tournaud said he could
not afford to do that. When Anderson asked about it again
prior to his third weekend in Minneapolis, which was his
weekend for child visitation, Tournaud told him he could
drive home in a company van. When Anderson said he could
not do so in a weekend, Tournaud told him to take personal
time off.
Anderson asked Lofton for time off to take care of per-
sonal business before leaving town the next day and was told
to go ahead and do what he needed to do and then come
back. He took off until about 1 p.m. and then returned to
work. A week later, while he was in Minneapolis, Anderson
had a telephone conversation with Lofton who told him the
Respondent was questioning the time Anderson had taken off
on February 17 and that he should report it as personal time
off, which he did.
Anderson filed a grievance over being required to work
out of town and not being given a paid trip home on the
third weekend. In a discussion about the grievance on March
23, 1992, Tournaud asked him if he liked working there. An-
derson responded that he liked working on local service but
did not like travelling. Tournaud said that local service jobs
no longer existed and if he wanted to work he would have
to work out of town and if he would not do so he would
be laid off.
The complaint alleges that the Respondent violated Section
8(a)(1) and (3) by assigning Anderson to more onerous work
by assigning him to an out-of-town job for an extended pe-
riod, by refusing to give him paid time off to prepare for the
trip, and by refusing to provide him with a paid trip home
after his third week away because he had engaged in pro-
tected activity. It also alleges that Tournaud’s remarks to
Brown at the January 17, 1992 grievance meeting violated
Section 8(a)(1).
Analysis and Conclusions
Anderson had learned about the existence of the contract
in March or April when he asked Cowell about a raise and
was told that raises would be in conjunction with the union
379TEL DATA CORP.
contract. Thereafter, he contacted Parrish and got a copy of
the contract. In May or June, he learned that that the Re-
spondent was instituting a drug testing policy and so in-
formed Parrish who contacted Tournaud informed him it was
a mandatory subject for bargaining. They subsequently met
and negotiated a drug testing policy. During their negotia-
tions, Tournaud asked Parrish if Anderson ‘‘had instigated all
this shit.’’ Parrish refused to tell Tournaud who had con-
tacted him but later said he was thinking of appointing An-
derson as a steward. Tournaud said that he would not deal
with Anderson and ‘‘would fire his ass.’’ After the policy
was negotiated, Anderson was called to Tournaud’s office
where Cowell was also present. Tournaud asked if he had so-
licited funds from any employees to obtain counsel to fight
the drug policy and if he told anyone not to sign the waiver
form. When Anderson said he had done neither, Tournaud
said that if he had said yes to either question he would be
showing Anderson the door. At the end of their conversation
Tournaud said that if Anderson were observed talking about
the Union or talking about the Company in a derogatory
manner, he would be ‘‘terminated on the spot.’’ The fore-
going is based on the credible testimony of Anderson and
Parrish. Tournaud admitted having the conversation with An-
derson and his testimony does not really contradict Ander-
son’s as to what was said.
Although the actions concerning Anderson involved here
did not occur until some months later, it was shortly after
the Respondent had changed several of its policies in retalia-
tion for the employees’ union activity and Anderson had
filed a grievance over those changes. Also, it was only weeks
after it had unlawfully terminated Frederick because of pro-
tected activity. The Respondent was aware of Anderson’s re-
luctance to work out of town and that it would cause him
a hardship to do so. I find the evidence of the Respondent’s
union animus and its animus toward Anderson, personally,
for engaging in protected activity is sufficient to create an in-
ference that the out-of-town assignment Anderson was given
in February 1992 was in retaliation for that activity.
The Respondent appears to contend that it was not out of
the ordinary or more onerous for Anderson to be given this
out-of-town assignment. However, his credible and
uncontradicted testimony establishes that he was hired to do
local service in the Nashville area and in nearly 2 years on
the job he had only once been given an extended out-of-town
assignment and that was on an emergency basis due to an
injury to the employee who would have otherwise done it.
The evidence offered by the Respondent on this issue was
the self-serving testimony of Cowell that there was work for
Anderson in Minneapolis and none available in the Nashville
area. He also claimed to have told Anderson that he would
have to work on out-of-town jobs 2 to 3 weeks prior to his
receiving the Minneapolis assignment. Based on their de-
meanor while testifying and the content of their testimony,
I found Anderson to be a more credible witness than Cowell.
I credit Anderson’s testimony that he first spoke to Cowell
about out-of-town work after he was given the Minneapolis
assignment. The Respondent presumably has business records
showing the work it had during February and March 1992
but produced none to support its contention that there was
no work available for Anderson in the Nashville area at that
time. Under Wright Line, supra, the burden was on the Re-
spondent to establish that it would have taken same action
with respect to Anderson even in the absence of protected
activity on the part of its employees. I find that it has not
met that burden and that its assigning Anderson more oner-
ous work was discriminatory and violated Section 8(a)(3) of
the Act. Yerger Trucking, 307 NLRB 567, 572 (1992); Lami-
nates Unlimited, 292 NLRB 595, 599–600 (1989).
I find that the Respondent’s alleged failure to grant Ander-
son paid time off on February 17 in order to take care of
personal business before leaving for the Minneapolis assign-
ment was not unlawful. Despite Anderson’s credible testi-
mony that on one other occasion when he had been given
a brief out-of-town assignment in Indianapolis he was al-
lowed a 2 or 3 hours off to get ready and was paid for those
hours, I do not find that the evidence establishes that it was
a routine practice. In that instance, Anderson was told by
Lofton around lunchtime that he had to be in Indianapolis the
next morning and that he should get his things together and
go. In the present case, Anderson was informed by Lofton
on the previous Friday that he would be sent out of town
during the following week and, unlike the Indianapolis trip,
he had the weekend to take care of personal matters. It does
not appear that Lofton was a supervisor with authority to
grant Anderson time off or that any supervisor was aware of
or concurred in Anderson’s taking time off in either instance.
I also find that the evidence does not establish that the Re-
spondent’s failure to provide Anderson with airfare for a trip
to Nashville on the third weekend of his Minneapolis assign-
ment was discriminatory. While there was some anecdotal
evidence that on occasions employees had been allowed to
fly to and from Nashville during long-term out-of-town as-
signments at company expense, it does not appear that it was
an established practice that every employee was provided
such a trip on the third weekend of such assignments, not-
withstanding the ostensible language of paragraph 12.7 of the
contract. On the contrary, the evidence suggests that requests
for such trips were handled by the employees’ supervisors on
a case-by-case basis and that sometimes the reimbursement
for such a trip was provided by a supervisor in a less than
forthright manner, such as, allowing the employee to claim
overtime in an amount equal to the airfare. There is no evi-
dence that Tournaud, who refused to provide Anderson with
airfare for such a trip, had acted differently in other cases.
The evidence indicates the Tournaud and the Respondent
contended that paragraph 12.7 had to be read in conjunction
with paragraph 12.9, which they interpreted as not requiring
that it pay more than the per diem it would otherwise incur
if the employee spent the weekend on the road. Regardless
of the merits of that position, there is no evidence that it was
formulated in order to discriminate against Anderson or that
it was related to the employees’ union activity. I shall rec-
ommend that both of these allegations be dismissed.
I find that Tournaud’s erroneous remark that Brown could
not file a grievance and be represented by the Union if he
was not a member was not coercive under the circumstances
presented here. The remark was made at the beginning of the
grievance meeting, it was immediately challenged by Parrish,
the union official who was there to and did proceed to rep-
resent Brown on the grievance.
D. The 8(a)(1) and (2) Allegations
The complaint alleges that the Respondent violated Section
8(a)(1) and (2) by paying its employees’ union dues for them
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 See Christopher Street Corp., 286 NLRB 253, 256 (1987).
9 Although Cowell testified that the vote he participated in was to
ratify a contract, I do not find that inconsistent with his testimony
about how representation came about. His testimony came more than
12 years after the events took place.
10 Griffin testified that it was his understanding that the Company
paid the employees’ dues because they were asked to join the Union
in order to gain access to union-controlled projects. He was not asso-
ciated with the Company at the time the Union began representing
the employees and the basis for his understanding was not explored.
I credit Cowell’s testimony that it was the employees who decided
to seek representation by the Union.
11 The contract contained a provision concerning payroll deduction
of union dues.
from 1979 through December 1991 and by reason of
Tournaud’s telling employees on December 13 that they had
to join the Union in order to get three additional holidays
and to work on certain jobsites. There is no dispute but that
throughout that period the Respondent paid the union dues
out of its own funds and that they were not deducted from
the employees’ wages. These dues payments violated Section
8(a)(1) and (2) of the Act. Sweater Bee By Banff, Ltd., 197
NLRB 805 (1972).8 I have already found that Tournaud’s re-
marks violated Section 8(a)(1).
E. The Bargaining Relationship
Counsel for the General Counsel contends that as a rem-
edy for the Respondent’s 8(a)(2) violations it should be or-
dered to withdraw recognition from the Union as the collec-
tive-bargaining representative of its employees. In the event
that such a remedy is found not to be appropriate, the com-
plaint alleges that the Respondent made certain unilateral
changes in conditions of employment in violation of Section
8(a)(1) and (5).
The situation concerning the bargaining relationship be-
tween the Respondent and the Union is unusual to say the
least. The evidence indicates that although they have nego-
tiated a series of contracts, no employee has ever been in-
volved in the negotiations, there has never been a union
steward, and there were no grievances filed prior to October
1991. Some employees testified that they had never been
asked to ratify a contract and that prior to 1991 they had
never seen a contract. As has been discussed above, the em-
ployees were given union identification cards by supervisors
which they were told were to be shown at jobsites if they
were challenged but all union dues were paid by the Re-
spondent. The testimony of Parrish was that in 1979 he was
contacted by someone at what was then known as JLC Cor-
poration. He said it might have been Company President
Frank Porter, but he was not sure. Thereafter, a vote was
conducted among the employees at the company premises by
an attorney for the CWA. Parrish was present but was not
in the area where the vote was conducted. The vote was six
to four in favor of representation and Parrish sat down and
negotiated a contract with Tournaud. Subsequent contracts
were negotiated with Tournaud by Parrish and another CWA
representative. Tournaud testified that the 1979 vote on rep-
resentation took place at the union hall, that contracts were
initially negotiated by someone other than himself, possibly,
Company President John Mennen. Sometime later he took
over negotiating for the Company. Tournaud said that once
a contract was agreed to it was distributed directly to em-
ployees by the Union except in cases when the Union did
not know where to send them. He also testified that he had
once discussed appointment of a union steward with Parrish
and was told that he could not find anyone that was inter-
ested in being a steward. Cowell, who was a bargaining unit
employee at the time, testified that in 1979 he and other em-
ployees contacted Parrish about obtaining representation by
the Union because they felt it was necessary to enable them
to work on certain union jobs the Company was doing in
California, which otherwise would be subcontracted. How-
ever, according to his recollection the first vote he partici-
pated in was on whether to approve a contract the Employer
and the Union had negotiated and was held within 2 weeks
of their first contact with Parrish. Cowell said that he was
not involved in the negotiations but gave Parrish input con-
cerning modifications to the basic CWA contact which were
needed to meet their situation.
Analysis and Conclusions
I find there is insufficient evidence to establish that the
Respondent was the moving force behind the effort to obtain
union representation in 1979. Although Parrish testified that
Company President Porter may have been the one who ini-
tially contacted him, Cowell whose recollection of the events
appeared better than Parrish’s testified that he and other em-
ployees were responsible for contacting the Union and that
Porter was not involved with the Company in 1979. He also
provided believable testimony that the reason the employees
wanted union representation was to enable them to gain ac-
cess to certain union jobsites.9 While this side effect of rep-
resentation might also have proved beneficial to the Re-
spondent, there is no credible evidence that it instigated or
had any influence on the employees’ decision to seek rep-
resentation by the Union.10 There is no evidence that the
Union was not chosen by a majority of the unit employees
in 1979 or that they were coerced into doing so.
Although the Respondent had always paid the employees’
union dues from its own funds there is no evidence that the
Union had knowledge that it was doing so at any time prior
to late 1991.11 There is also nothing to suggest that the con-
tracts between the parties were not the results of good-faith,
arm’s-length negotiations. While there was little activity by
the Union apart from contract negotiations during the years
prior to 1991, this may well have been because the majority
of the employees were normally working out of town and
they were receiving benefits over and above those provided
in the contract. In those instances where the employees
sought its assistance, as in the case of the drug-testing pro-
posal and the grievances in late 1991, the Union promptly
acted to represent the employees’ interests and there is no
evidence that it was dominated or influenced by the Re-
spondent. I find there is no basis on which to order the Re-
spondent to withdraw recognition from the Union.
F. The 8(a)(1) and (5) Allegations
As the exclusive collective-bargaining representative of the
Respondent’s employees, the Union was entitled to notice
and the opportunity for bargaining before the Respondent
made any changes in working conditions. On December 13,
the Respondent issued a new employee handbook and an-
nounced and effectuated changes in working conditions by
381TEL DATA CORP.
12 The evidence establishes that the Respondent gave no consider-
ation to whether Frederick’s charges for personal calls exceeded the
$40 per month allowed under it prior policy. According to Cowell,
the amount involved was irrelevant and Frederick was discharged
because he knew what the new policy was and flagrantly violated
it.
withdrawing the use of company vans by local employees for
commuting to and from work, withdrawing the option of out-
of-town employees to claim actual expenses in lieu of per
diem, and eliminating on-call bonus pay for local employees.
The evidence establishes that it did not notify or give the
Union the opportunity to bargain before making these
changes which were material, substantial, and significant. Its
actions in making these unilateral changes violated Section
8(a)(1) and (5) of the Act. E.g., NLRB v. Katz, 369 U.S. 736
(1962); Union Child Day Care Center, 304 NLRB 517, 524
(1991); 88 Transit Lines, 300 NLRB 177, 184 (1990). The
uncontradicted testimony of Anderson established that em-
ployees who were called into work for less than 4 hours
were paid only for actual hours worked rather than the 4-
hour minimum called for in the contract. By failing to pay
employees in accordance with the contract the Respondent
violated Section 8(a)(1) and (5). Wilson & Sons Heating, 302
NLRB 802, 806 (1991).
The Respondent contends that the Union was given notice
of its intent to make a change in its telephone credit policy
and waived the opportunity to bargain. As discussed above,
for a long time prior to November 1991 the Respondent had
permitted out-of-town employees to charge to their company
credit cards $40 or more of personal telephone calls each
month. The contract provided for an allowance of $6 per
week for such calls. Griffin testified that during October he
was astounded when he learned of the volume of calls that
employees were charging to the Company. He said that at
the grievance meeting on November 1 he mentioned this to
Parrish and told him that the contract specified $6 per week
and that was what the Company was going to do. Tournaud
testified that Parrish was told that because of abuse they
were eliminating the employees’ use of company credit cards
for personal calls. He said Parrish responded ‘‘you have to
do what you have to do, you can’t let people steal from
you.’’ On November 18, the new policy limiting employees
to the $6-per-week telephone allowance went into effect. Par-
rish testified that at the meeting Griffin said that some em-
ployees had used the credit cards excessively and that they
were going to look at it and see what could be done. He
agreed he may have said that they had a problem and could
not let people steal from the Company; however, he said that
Griffin did not say what the Respondent was going to do
about the problem or make any proposals. He said he was
not aware that the Respondent had a policy that differed
from the contract provision pertaining to telephone calls.
CWA Representative Harry Swaim who was also at the
meeting testified that Griffin talked about telephone credit
card abuse and said they were investigating it.
I find the evidence does not establish that the Respondent
put the Union on notice that it was proposing to change its
telephone credit card policy. It is clear that it felt it was
under no obligation to bargain about what it considered was
in effect a tit-for-tat response to complaints that it was not
meeting all its obligations under the contract. As Griffin told
Parrish at the meeting, if they insisted that the Company
honor every single item in the contract the Company would
insist on the same from them. By telling the union represent-
atives that the Company was going to insist that the employ-
ees comply with the $6-per-week telephone allowance as
stated in the contract, the Respondent did not indicate that
any change in working conditions was contemplated. For all
that the Union knew, this was not a change but insistence
on contract compliance about which it had no basis for re-
questing bargaining. In fact, the telephone policy the Re-
spondent had long followed differed from and was more gen-
erous than the terms of the contract and could not be unilat-
erally changed. The evidence does not establish that on No-
vember 1 the Respondent put the Union on notice as to what
the actual policy was. Consequently, I find that it did not
give the Union notice or an opportunity for bargaining before
it changed its telephone credit card policy, effective Novem-
ber 18. Its failure to do so violated Section 8(a)(1) and (5).
The discharge of Dale Frederick discussed above was
based solely on his alleged violation of the Respondent’s
new policy concerning telephone credit card use.12 Inasmuch
as the institution of this new policy was unlawfully moti-
vated by union animus in violation of Section 8(a)(3) and
implemented unilaterally in violation of Section 8(a)(5), any
disciplinary action taken pursuant to it was also unlawful.
Equitable Gas Co., 303 NLRB 925, 927–929 (1991); Great
Western Produce, 299 NLRB 1004, 1005 (1990).
CONCLUSIONS OF LAW
1. The Respondent, Tel Data Corporation, is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All apprentices, wiremen, installer-repairmen and senior
installer-repairmen, and excluding others and those exempted
under the National Labor Relations Act constitute a unit ap-
propriate for collective bargaining within the meaning of
Section 9(b) of the Act.
4. The Union is the exclusive representative of the em-
ployees in the aforesaid unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. The Respondent violated Section 8(a)(1) of the Act:
(a) By telling employees that they would lose benefits be-
cause they had insisted that the Employer comply with all
provisions of the collective-bargaining agreement.
(b) By telling employees that the Employer could close its
business and fire them because they had engaged in protected
activity.
(c) By telling employees they would receive three addi-
tional holidays and would be able to work on certain jobsites
only if they joined the Union.
(d) By promising an employee benefits if he ceased engag-
ing in protected activity.
6. The Respondent violated Section 8(a)(1) and (2) of the
Act by paying union dues on behalf of its employees from
it own funds without deducting such amounts from their
wages.
7. The Respondent violated Section 8(a)(1) and (3) of the
Act:
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) By eliminating on-call bonus pay for local employees
in retaliation for the employees’ having engaged in protected
activity.
(b) By withdrawing from local employees the use of com-
pany vans for driving to and from work in retaliation for the
employees’ having engaged in protected activity.
(c) By withdrawing from out-of-town employees the op-
tion of claiming actual expenses in lieu of per diem in retal-
iation for the employees’ having engaged in protected activ-
ity.
(d) By issuing a disciplinary warning to Dale Frederick on
January 6, 1992, and discharging him on January 23, 1992,
in retaliation for his having engaged in protected activity.
(e) By assigning Russell Anderson more onerous work in
retaliation for his having engaged in protected activity.
8. The Respondent violated Section 8(a)(1) and (5) of the
Act:
(a) By implementing material and substantial changes in
policies relating to use of company telephone credit cards for
personal calls, use of company vans by local employees for
commuting to and from work, on-call bonus pay for local
employees, and the option of out-of-town employees to claim
actual expenses in lieu of per diem, without first providing
the Union with notice and the opportunity for bargaining.
(b) By unilaterally failing to continue in effect the terms
of the collective-bargaining agreement requiring payment to
employees of a minimum of 4 hours call-in pay.
(c) By discharging Dale Frederick for allegedly violating
its unlawful policy concerning use of company telephone
credit cards for personal calls.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
10. The Respondent did not engage in any unfair labor
practices alleged in the consolidated complaint which are not
specifically found here.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that the Respondent discriminatorily dis-
charged employee Dale Frederick, I shall recommend that it
be required to offer him immediate and full reinstatement to
his former position or, if that position no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority and other rights and privileges previously enjoyed,
and make him whole for any loss of earnings or benefits suf-
fered by reason of the discrimination against him, plus inter-
est. Backpay shall be computed as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest to be com-
puted in accordance with New Horizons for the Retarded,
283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]