Wheelling Electric Co.

National Labor Relations Board - Board Decisions

Apr 29, 1970

182 N.L.R.B. 218 (N.L.R.B. 1970)

218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wheeling Electric Company and Imogene D McConnell
Case 6-CA-4427
April 29, 1970
DFCISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On November 5, 1969, Trial Examiner Sidney Sherman
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and
a supporting brief The General Counsel filed limited
exceptions to the Trial Examiner's Decision, and a brief
in support of its exceptions and of the Trial Examiner's
Decision
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed The rulings are hereby affirmed
The Board has considered the Trial Examiner's Decision,
the exceptions and biiefs, and the entire record in this
case, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations, as herein modified I
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby adopts as its Order the Recommended
Order of the Trial Examiner, and hereby orders that
the Respondent, Wheeling Electric Company, Mounds-
ville, West Virginia, its officers, agents , successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as modified herein
l Delete paragraph 2(a) and substitute the following
"(a) Offer Imogene McConnell immediate and full
reinstatement to her former job or, if that job no longer
I In adopting the Trial Examiners finding that McConnell was not
deprived of the Act s protection because she was a confidential employee
we also rely on Sec 2(3) of the Act which provides in pertinent
part that The term employee ' shall include any employee and shall
not be limited to the employees of a particular employer unless the
Act explicitly states otherwise and the failure of the Act explicitly
to state that confidentials are not employees
Since it is reasonable to infer that McConnell would have returned
to work on September 24 1968 the day after the picket line was
removed the Respondent will be required to make her whole for
her loss of earnings by payment to her of the sum she would normally
have earned on and after September 24 1968 to the date the Respondent
offers her reinstatement less her net earnings for that period See
Nuodex Division of Tenneco Chemicals Inc 176 NLRB No 79 Difco
Laboratories Inc 172 NLRB No 235 Southern Greyhound Lines
169 NLRB 627
exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges
previously enjoyed, and make her whole in the manner
set forth in the section of the Trial Examiner's Decision
entitled "The Remedy" as modified herein for her loss
of earnings by payment to her of the sum she would
normally have earned on and after September 24, 1968,
to the date the Respondent offers her reinstatement "
2 Delete the fourth indented paragraph of the Notice
to Employees and substitute the following two para-
graphs
WE WILL offer to take back Imogene McConnell
to her former job, or if that job no longer exists,
to a substantially equivalent position, and pay her
the sum she would normally have earned on and
after September 24, 1968, until the date we offer
her reinstatement, less her net earnings in any
for that period
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the United
States of her right to full reinstatement upon applica-
tion in accordance with the Selective Service Act
and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY SHERMAN, Trial Examiner A copy of the
original charge herein was served upon Respondent on
December 4, 1968,' the complaint issued on July 24,
1969, and the case was heard on August 21 The only
issues litigated were whether Respondent violated Sec-
tion 8(a)(1) of the Act by threatening to discharge, and
discharging, Imogene McConnell Briefs were filed by
Respondent and the General Counsel
Upon the entire record,' including observation of
the demeanor of the witnesses, the following findings
and conclusions are adopted
I THE BUSINESS OF RESPONDENT
Wheeling Electric Company, herein called Respond-
ent, is a West Virginia corporation, and operates as
a public utility, furnishing heat, power, and light within
that State During the 12-month period before the
issuance of the instant complaint, Respondent derived
gross income in excess of $1 million from its West
Virginia operations, and Respondent received goods and
materials valued in excess of $50,000 from out-of-State
sources
Respondent is engaged in commerce under the Act
All dates hereinafter are in 1968 unless otherwise indicated
z For corrections of the record and an evidentiary ruling see the
orders of October 21 and 31 1969
182 NLRB No 33
WHEELING ELECTRIC CO 219
II THE UNFAIR LABOR PRACTICES
The pleadings raise the following issues
1 Whether Imogene McConnell' was discharged for
refusing to cross a picket line at Respondent's premises,
and, if so, whether such discharge violated Section
8(a)(1) of the Act?
2 Whether Respondent violated Section 8(a)(1) by
threatening McConnell with loss of employment if she
honored the picket line9
A Sequence of Events
Respondent's headquarters are at Wheeling, West Vir-
ginia It maintains a facility at Moundsville, West Virgin-
ia, about 12 miles from Wheeling, where it has about
10 physical employees and 10 office workers, 1 of whom
was McConnell In February 1967 she was promoted
to a position as personal secretary to Hubbard, the
manager of the Moundsville operations McConnell's
husband was at all times here material business manager
of a West Virginia local of the International Brotherhood
of Electrical Workers 4
Respondent's workers have been covered by contracts
with United Utility Workers of America (hereinafter
called Utility Workers), representing its physical employ-
ees, and WECO Employees Association (hereinafter
called the Association), representing all other employees,
principally office and clerical Although she was an
office employee, McConnell's position was regarded by
Respondent and the Association as confidential and
hence excluded from the coverage of their contract I
The contracts of both unions expired on July 31
While, before that date, it succeeded in negotiating
a new contract with the Association, Respondent could
not reach agreement with Utility Workers when its old
contract expired, and that union called a strike, which
lasted from August 1 to September 23 Throughout
that period picket lines were maintained by Utility Work-
ers at Respondent's Wheeling and Moundsville locations
During the first few days of the strike, there was mass
picketing, which prevented ingress and egress However,
after the issuance of a state court injunction, on August
2, the picketing was on a more orderly basis, and by
the morning of August 5, normal access to Respondent's
facilities had been restored
There is no dispute that McConnell's employment
ended on August 5 There was, also, general agreement
that, either on July 26 (if one credits Hubbard) or
on August 2 (if one credits McConnell) Hubbard pro-
posed to her that, to avoid the necessity of crossing
the picket line during the strike, she apply in writing
to a 90-day leave of absence, that in the morning of
August 5 she did post a letter to Respondent containing
such an application, that later the same day Hubbard
Hereinafter referred to as McConnell
That local did not represent any of Respondent s employees
The contract excluded employees in confidential positions and
there was no contradiction of the testimony of Respondent s personnel
supervisor Brookes that this exclusion was intended by the contracting
parties to apply to McConnell s job
called to advise her that higher mat}agement had ruled
out granting her any leave during the strike, and that
she would have to report for work, and that she replied
that she would not report
It was also generally agreed at the hearing that in
mid-August Personnel Supervisor Brookes called to
inform McConnell that he had some termination papers
for her to sign and that they indicated that she had
resigned, and that either McConnell or her husband
declared that she would not sign the papers in that
form and it was finally agreed to have the papers show
that she had been discharged s
There was no further contact between Respondent
and McConnell relative to her employment status She
was not replaced until October 21, about a month after
the end of the strike
B Discussion
It is the General Counsel's contention that McConnell
was discharged for refusing to cross the picket line
and that such discharge was unlawful, because it
restrained her in the exercise of her statutory right
to support the strike by absenting herself from work
In its brief, Respondent contends as follows
I That McConnell's refusal to cross the picket line
was motivated by considerations peculiar to herself,
and, therefore, did not constitute "concerted activities"
within the meaning of Section 7 of the Act
2 That, in any event, she was not protected by
the Act because (a) she was a confidential employee
or (b) she had waived the right to engage in concerted
activities
3 That, even if her conduct was protected by the
Act, Respondent was entitled to discharge her and to
make room fora replacement, under the Redwing Car-
riers' rule 3
8 There is no need to resolve the conflict between the testimony
of Brookes that McConnell merely referred him to her husband who
discussed the matter with Brookes and the testimony of the McConnells
that she initially so advised Brookes herself and that her husband
later confirmed that advice Even if one credits Brookes version
it is clear that McConnell s husband was purporting to speak for her
' Redwing Carriers Inc 137 NLRB 1545 affd 325 F 2d 1011
(C ADC)
8 In making the foregoing contentions Respondent has apparently
abandoned its attempt at the hearing to show that McConnell was
not discharged but voluntarily quit on August 5 when ordered to
report for work In any case the record amply supports a finding
of a discharge on that date rather than a quit Both Hubbard and
McConnell agreed that on the morning of August 5 he directed her
to report for work and that she refused to do so The only dispute
is as to whether as Hubbard testified she stated that she was quitting
or as McConnell testified he warned her that if she did not report
she would have to quit McConnell s denial that she made any reference
to quitting on that occasion is consistent with the position conveyed
on August 15 either by her or her husband to Personnel Supervisor
Brookes that she would not sign a termination report because it recited
that she had quit On the other hand Hubbard s testimony that she
declared on August 5 that she was quitting and that he indicated
he would proceed to terminate her on that basis is difficult to square
with other testimony by Hubbard concerning his reason for instructing
Brookes on August 13 to process her termination as a resignation
At this point in his testimony he made no reference to McConnell s
alleged verbal resignation on August 5 but indicated rather that he
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The foregoing contentions will be considered in order.
1. McConnell ' s motivation
Respondent ' contends that McConnell ' s refusal to
cross the 'picket line was not protected by the Act
because such refusal was not motivated by sympathy
for the cause of the strikers but by fear that , by crossing
the picket line, she would jeopardize her husband's
position as a union business agent.
The General Counsel counters that any inquiry into
McConnell ' s motivation is foreclosed by the Board's
decision in Tenneco,' which involved facts strikingly
similar to those in the case at bar . There an office
employee was discharged for. refusing to cross a picket
line established by a union representing the respondent's
production and maintenance employees . Although she
avowed that her action was dictated solely by respect
for her husband ' s wishes, the Board adopted the finding
of the Trial Examiner that her motivation was immaterial,
and that the only relevant consideration was the nature
of the activity for which she was discharged . The dis-
charge was therefore found to have been unlawful.
The foregoing authority would ' seem to be controlling
here , and it is, accordingly , found that , even if McCon-
nell refused to cross the picket line 'for the reason
alleged by Responderit , 1° that would not preclude grant-
ing her relief.'
2. Applicability of act to confidential employees
It was stipulated' at the hearing that , as Hubbard's
personal secretary , McConnell was a ' "confidential
employee " such as the Board customarily excludes from
bargaining units because of ' their special relation to
management . The excluded category has been defined
by the Board as comprising all employees who assist
and act in a confidential capacity to persons who formu-
late, determine, and effectuate an employer ' s labor rela-
tions policies." While thus , in effect , denying to` such
assumed that she had quit because she failed to report for work
Moreover , Brookes acknowledged that on August 15 he told Mr McCon-
nell that his wife ' s termination was being reported as a resignation
out of consideration for her , and that it could have been termed a
discharge In view of this, I credit McConnell, rather 'than Hubbard
and find that she did not in fact announce on August 5 that she
was quitting , but only that she would not cross the picket line Moreover,
for reasons indicated in the' text below , I find that Hubbard warned
her that, if she did. not report, she would have to quit, which was
tantamount to a warning of discharge It is found therefore that, as
it apparently now concedes , Respondent's action with respect to McCon-
nell constituted a discharge because of her refusal to work during
the strike
B Nuodex Division of Tenneco Chemicals , Inc , 176 NLRB No 79
10 If a finding as, to McConnell's motivation were deemed relevant,
the record would afford ample basis for finding that the dominant,
if not the sole, reason for McConnell's conduct was a fear of jeopardizing
her husband ' s position
11 The B F Goodrich Company, 115 NLRB 722, 724 , 725, Vulcanized
Rubber,and Plastics Company, Inc , ,129 NLRB 1256, 1259
(In the Goodrich case , supra , the Board held that a supervisor who
merely handled grievances 'was not engaged in formulating , determining
and effectuating labor relations policies and that his secretary was
therefore not a confidential employee , and no subsequent Board decisions
have been found where an employee has been deemed confidential,
employees the right to be represented in the same unit
with other employees , the Board has never held that'
they might not be represented in a unit limited to con-
fidential employees , nor that they were excluded entirely
from the protection of the Act . On the contrary , although
it had already adopted a policy of excluding confidential
employees from bargaining units," the Board early stated
that the Act, does not withhold from confidential employ-
ees "as a class" the right to engage'in concerted activi-
ties.i3 However , Respondent cites the legislative history
of the 1947 amendments to the Act , and particularly
the explanation in the conference report for the failure
of the conferees to adopt the provisions of the House
Bill, which would have specifically removed confidential'
employees , inter alia , from the coverage of the Act'.
The conference report states in this regard:
In the case of persons working in the labor relations,
personnel and employment departments , it was not
thought necessary to make specific provision, as
was done in the House Bill, since the Board has
treated , and presumably will continue to treat, such,
persons as outside the scope of the act. This is
the prevailing ' Board practice with respect to such
people as confidential secretaries as well, and it
was not the intention of the conferees to alter
this practice in any respect . (H. Conf . Rep. No.
51, on H.R. 3020, 89th Cong., 2d Sess., p. 35).
Thus, it is evident that , notwithstanding the contrary,
language in Southern Colorado Power, supra, the confer-
ees construed the Board ' s policy of excluding confiden-
tial employees from bargaining units as tantamount to
a denial to them of any rights under the Act.
To the extent that Respondent is here relying on
the rule that, where Congress reenacts a statute without
material change , it will be presumed to have approved
a contemporaneous, administrative interpretation there-
of," such reliance is misplaced ; since here there was
in fact no administrative interpretation such as Respond-
ent proposes. '
It may be urged that, since the conferees rejected
the proposal to exclude confidential employees from
the protection of the Act because of a belief that they
were already so excluded , the Board is required to
conform its present policy to that belief . The result
would be to treat the proposed exclusionary amendment
as, if it had been, enacted , instead of rejected , on the,
assumption that , had they been advised that the proposal
unless she assisted one who engaged in contract negotiations Here,
although General Counsel had stipulated to the legal conclusion that
McConnell was a confidential employee under the Act, Respondent's
counsel proceeded to examine Hubbard concerning her duties and his
functions , and as to the latter elicited only testimony that Hubbard
handled grievances at the third step of the grievance procedure under
the union contracts While this raises a question as to the correctness
of the legal conclusion embodied in the parties ' stipulation, I have
assumed for the purpose of this decision that I am bound by such
stipulation )
" E.g , Southern Pacific Steamship Lines, 8 NLRB 1263, 1268
1 3 Southern Colorado Power Co , 13 NLRB 699 , 719 The Board
there found that the respondent violated Sec 8(a)(3) and ( 1) of the
Act by coercing and discriminatorily discharging certain employees
alleged to be confidential
14 See Sutherland, Statutory Construction , 3rd ed , sec 5109
WHEELING ELECTRIC CO 221,
in the House Bill went beyond existing Board practice,
the conferees would have approved the proposal and
Congress would have enacted it This substitutes specula-
tion as to Congressional action for the legislative process
Even if it were proper to infer that the conferees would
have agreed to the exclusionary provision had they
been apprised of the limited nature of the Board ' s exist-
ing exclusionary policy , enactment of such provision
by Congress would not have followed automatically
While statements in conference reports may be valuable
aids in construing statutory provisions actually enacted
by Congress, they cannot afford a basis for dispensing
with the requirement of enactment And, this would
be true , even if there were no provision in the Act
like Section 13, which stipulates that nothing in the
Act, except as specifically provided for therein, shall
be construed "so as to interfere with or impede or
diminish in any way the right to strike "15
I therefore find no merit in the contention that in
1947 Congress withdrew from confidential employees
the Act's protection of their right to engage in concerted
activities
3 The waiver contention
At the time of McConnell's refusal to cross the picket
line, the contract between Respondent and the union
representing its office and clerical employees contained
a clause forbidding " strikes, cessation of work, slow-
down, stoppage of work " While McConnell's job con-
cededly was excluded from the unit covered by this
contract ,"' Respondent points to the apparent anomaly
that would result, if McConnell, a confidential employee,
were free to participate in concerted activity by withhold-
ing her services at the same time that all of Respondent's
other office employees were precluded from doing so
The short answer to this is that it would also be anoma-
lous to hold that McConnell should, in effect, be subject-
ed to the burden of the contract's no-strike clause,
even though she was not entitled to any of the benefits
or protection afforded by the other provisions of the
contract
Respondent contends further that McConnell waived
her right to strike by accepting the job as Hubbard's
personal secretary "with the clear and expressed under-
standing that such job would require her undivided
loyalty to the Company " In this respect, the record
shows only that McConnell accepted the job as Hub-
bard's secretary after he stressed that she would have
access to confidential labor relations matters and
enjoined her that she would have to "separate her
feelings, her actions in regard to Wheeling Electric Com-
pany from those of her husband" as a union official
All that this would seem to imply is that McConnell
agreed that she would not! permit her husband's union
15 After the enactment of the 1947 amendments the Board continued
to treat confidential employees as within the protection to Section
7 of the Act American Book Stratford Press Inc 80 NLRB 914
915 Southern Greyhound Lines 169 NLRB 627 (It does not appear
from those cases that the Board gave any consideration to the legislative
history here discussed In Southern Greyhound the parties in effect
stipulated that confidential employees are covered by Sec 7
16 See fn 5 above
affiliation to influence her to disclose to unauthorized
persons any of the confidential matters contained in
the documents to which she would have access 11 Admit-
tedly, there was no reference at that time to what
she should do in case of a strike , nor any anticipation
that there might be a strike , and, that Respondent did
not consider McConnell to have somehow waived the
right to cross a picket line is clear from the fact that
about the end of July Hubbard , himself , proposed an
arrangement that would have allowed her to stay out
during the strike Moreover , it is well settled that any
waiver of a right conferred by the Act will not be
lightly inferred but must be expressed in clear and
unequivocal terms
4 The Redwing Carriers issue
In Redwing Carriers, supra , , the Board held that,
where a delivery employee refused to cross a picket
line at the premises of one of his employer ' s customers,
the employer was privileged to discharge him in the
interest of efficiency of operations
While recognizing that it had in the past accorded
to employers in such a situation only the right to replace,
but not to discharge , employees who refused to perform
servicies because of their involvement in concerted activi-
ties, the Board stated in Red st ing Carriers
In considering the continued validity of the discharge-
replacement distinction in this situation, we are
convinced that substance, rather than form, should
be controlling That is, where it is clear from the
record that the employer acted only to preserve
efficient operation of his business, and terminated
the services of the employees only so it could
immediately or within a short period thereafter re
place them with others willing to perform the Sche
duled work, we can see no reason for reaching
different results solely on the basis of the precise
words, i e , replacement or discharge used by the
employer or the chronological order in which the
employer terminated and replaced the employees
in question
Relying on the foregoing language , Respondent con-
tends that Redwing evinces an intent by the Board
to jettison in all cases any distinction between the dis-
charge and permanent replacement of persons absenting
themselves from work in order to engage in concerted
activities, and to equate the privilege to discharge such
persons with the privilege to replace them However,
it is clear from subsequent Board decisions that, if
such was in fact the Board ' s intent , it'has either had
second thoughts about the matter or has decided to
limit Redwing to its special facts-namely , a discharge
for refusal by an employee to perform part of his
assigned duties because of reluctance to cross a picket
line Such a limited reading of Redwing was in fact
adopted ' by the Board in Southern Greshollnd Lines,`
11 There was no contention nor evidence that McConnell made any
such improper disclosure nor that she was discharged because it was
inferred from her refusal to cross the picket line that she would place
her union allegiance above her duty to respect the confidential nature
of matters entrusted to her
11 169 NLRB 627
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where, on facts strikingly similar to those here present-
ed, the Board found a violation of Section 8(a)(1) in
the discharge of a nonunit employee for refusing to
come to work through a picket line established by unit
employees at the employer ' s premises. 19
Moreover, even if one were to apply here the test
of Redwing Carriers-namely, whether the employer
"acted only to preserve efficient operation of his busi-
ness" and resorted to discharge,only so that be could
"immediately or within a short period thereafter" replace
the employee with one who was willing to perform
the scheduled work-one would be forced to conclude
that Respondent did not satisfy the foregoing require-
ments. While there was testimony by Hubbard that
some time in August he made inquiries among acquain-
tances concerning a replacement for McConnell, he
admittedly did not advertise for one until September
6, and McConnell ' s replacement did not actually report
until October 21, almost a month after the end of the
strike. It is difficult to believe that , if Respondent had
in fact regarded the prompt replacement of McConnell
as essential to the efficient operation of its business,
it would have waited about a month before placing
an advertisement , or that it would have made no effort
to ascertain on September 23, when the picketing ended,
whether McConnell was available to fill the as yet unfilled
position.
The fact that no such effort was made and that
the Respondent preferred to wait another ' month before
filling her position would seem effectively to negate
any sense of urgency on Respondent ' s part . In fact,
even if the discharge of McConnell on August 5, were
thought to be privileged as merely a necessary prelude
to replacing her, it would be proper to infer that the
failure to recall her after the strike ended and while
Respondent was still seeking to fill her position was
due solely to her refusal to cross the picket line, and
that such failure was, therefore, -tn itself, unlawful 20
18 Such a limited reading would bring Redwing into line with the
mainstream of the Board's thinking on the subject of the protection
accorded by the Act to concerted activities , a basic tenet of which
is that employees may not both work and strike at the same time,
as by engaging in a concerted refusal to perform overtime work or
by engaging in intermittent work stoppages
Respondent contends that the distinction drawn by the Board in
Southern Greyhound, supra , between a partial and total refusal to
perform services is unrealistic , because in the case of a total refusal
there is "a more pressing management need to terminate and replace
the employee " However, where an employee withholds his services
entirely , there is no need to discharge him The employer can fill
the void simply by replacing him It is only where he insists on remaining
on the payroll, while doing only part of his job, that his discharge
can be justified as a necessary prelude to replacing him with a full-
time worker This elementary fact of industrial life affords a sufficient
rationale for the rule of Redwing Carriers, and any discussion therein
of the validity of any distinction between discharge and replacement
would seem not to have been strictly necessary to the result reached
(Moreover , insofar as Redwing Carriers implies that a permanently
replaced employee has no better standing than one who has been
(validly) discharged , that proposition is open to question in view of
the recent decisions in N L R B v Fleetwood Trailer Co , 389 U S
375, and The Laidlaw Corporation, 171 NLRB No. 175 )
10 The failure to reinstate McConnell was alleged in the complaint
Upon consideration of all' the foregoing matters, it
is concluded that McConnell ' s discharge for refusing
to cross the picket line violated Section 8 (a)(1) of the
Act. - '
5. The threat
As already related, there is no dispute that, when
Hubbard called McConnell on August 5, he advised
her that she could not be granted a leave of absence
and would have to report for work across the picket
line. According to McConnell, Hubbard added that,
if she did not report, she would have to quit. Hubbard
at first denied categorically that he indicated what conse-
quences would flow from her failure to report, but,
when asked whether he warned her of termination,
answered that he did not recall that he had done so.
In view of this apparent vacillation , as well as the
fact that I have already found McConnell a more credible
witness with regard to another aspect of the same inci-
dent , " I credit McConnell .22 It is accordingly found
that by the foregoing warning Respondent violated Sec-
tion 8(a)(1) of the Act.
III. THE REMEDY
It having been found that Respondent violated Section
8(a)(l) of the Act, it will be recommended that it be
required to cease and desist therefrom and take
appropriate , affirmative action . Such action shall include
an offer of reinstatement to McConnell and reimburse-
ment of McConnell for any loss of earnings suffered
by reason of her discharge. Backpay shall be computed
in accordance with the formula stated in F. W. Wool-
worth Company, 90 NLRB 289; interest shall be added
to backpay at the rate of 6 percent per annum. (Isis
Plumbing & Heating Co., 138 NLRB 716.)
Although normally a broad cease-and-desist provision
would be warranted in a case of unlawful discharge,
I will not recommend that here, in view of the long
history of contractual relations between Respondent and
the unions representing its employees , which history
effectively negates any hostility on its part to the basic
policies of the Act.
CONCLUSIONS OF LAW
1. Wheeling Electric Company is an employer within
the meaning of Section 2(2) of the Act, and is engaged
in commerce within the meaning of Section 2(6) and(7)
of the Act.
as a separate violation However , in view of the finding herein that
her original discharge was unlawful , a violation finding based on such
failure would not affect the remedy Accordingly, absent reversal of
such finding as to the discharge , there is no need to act on the foregoing
allegation of the complaint
" See fn 8 above
" In any case, even if Hubbard had merely instructed McConnell
that she would have to report to work, there was necessarily implicit
in such instruction a warning of disciplinary action if she failed to
do so
WHEELING ELECTRIC CO.
2. By threatening discharge for refusal to cross a
picket line, Respondent has violated Section 8(a)(1) of
the Act.
3. By discharging Imogene McConnell because of
her refusal to cross a picket line, Respondent has violated
Section 8(a)(1) of the Act.
4. The aforesaid violations are unfair labor practices
affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the proceeding and the
foregoing findings of fact and conclusions of law, it
is recommended that Wheeling Electric Company,
Wheeling, West Virginia, its officers, agents, successors,
and assigns, shall be required to:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees in regard to their hire or tenure of employment
or any term or condition of employment, or threatening
employees with discharge because of their refusal to
cross a picket line.
(b) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act.
(a) Make whole Imogene McConnell, in the manner
set forth in the section of the Trial Examiner's Decision
entitled "The Remedy," for any loss of pay she may
have suffered by reason of her discharge, and offer
her immediate reinstatement to her former or substantial-
ly equivalent position, without prejudice to her seniority
or other rights and privileges.
(b) Notify Imogene McConnell if presently serving
in the Armed Forces of the United States of her right
to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Selective Service Act, as amended, after
discharge from the Armed Forces.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination or copying,
all payroll records, social security payment records,
timecards, personnel records and reports and all other
records necessary to analyze the amounts of backpay
due under the terms of this Recommended Order.
(d) Post at Respondent's facility in Moundsville, West
Virginia, copies of the notice attached marked "Appen-
dix."23 Copies of said notice, on forms to be provided
11 In the event no exceptions are filed, as provided by Sec 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and Recommended Order
herein shall, as provided in Sec 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and
order, and all objections thereto shall be deemed waived for all purposes
In the event that the Board's Order is enforced by a judgment of
a United States Court of Appeals, the words in the notice reading
223
by the Regional Director for Region 6, shall, after being
duly signed by Respondent's representatives, be posted
by Respondent immediately upon receipt thereof, and
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that such notices
are not altered, defaced, or covered by any other mate-
rial.
(e) Notify the Regional Director for Region 6, in
writing, within 20 days from the receipt of this Recom-
mended Order, what steps Respondent has taken to
comply herewith .14
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals enforcing an Order of the National Labor Relations
Board "
14 If this Recommended Order is adopted by the Board, this provision
shall be modified to read "Notify said Regional Director in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge employees or otherwise
discriminate against them because of their refusal
to cross a picket line at our premises.
WE WILL NOT threaten to discharge any employee
for refusal to cross such a picket line.
WE WILL NOT in any like or related manner
interfere with the rights guaranteed by Section 7
of the Act.
WE WILL offer to take back Imogene McConnell
to her former, or substantially equivalent, job and
pay her for all the wages lost because of her
discharge.
WHEELING ELECTRIC
COMPANY
(Employer)
Dated By
(Representative) (Title) '
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any 'questions concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, 1536 Federal Building,1000 Liberty Avenue, Pitts-
burgh, Pennsylvania 15222, 412-644-2969.