San Diego Gas and Electric Co.

National Labor Relations Board - Board Decisions

Mar 31, 1952

98 N.L.R.B. 879 (N.L.R.B. 1952)

SAN DIEGO GAS AND ELECTRIC COMPANY 879
erators), excluding all other employees, professional employees, non-
hourly personnel, watchmen, guards, foremen, and all other super-
visors.
. [Text of Direction of Election omitted from publication in this
voiume.j
SAN DIEGO GAS AND ELECTRIC COMPANY and COSBY M. NEWSOM.
Case No. f1-CA-1O 9. March 31,195,19
Decision and Order
On September 18, 1951, Trial Examiner Howard Myers issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the
Respondent filed exceptions to the Intermediate Report and a sup-
porting brief.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report,.the
exceptions and brief, and the entire record in the case, and hereby
adopts the findings, -conclusions, and recommendations of the Trial
Examiner, with the following additions and modifications :
The Trial Examiner has found, and we agree, that Complainant
Newsom's discharge was violative of Section 8 (a) (1) and (3) of
the Act. In reaching this conclusion, unlike the Trial Examiner,
we have considered certain work records of Newsom's which were
introduced in evidence by the Respondent in support of its contention
that Newsome's work was unsatisfactory. -
These records consist of standard forms prepared by the Respond-
ent for use by its instrument technicians in conducting tests on gener-
ators, turbines, boilers, and other equipment in the Respondent's
I Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations
Board has delegated its powers in connection with this case to a three-member panel
(Chairman Herzog and Members Murdock and Styles.]
2 The Intermediate Report contains an inadvertent error which is hereby corrected. In
concluding that Hathaway, immediately after his conference with Nobel, decided to dis-
charge Newsom, the Trial Examiner states, "It thus follows that what Hathaway learned
about Newsom at the January 15th meeting with the station chiefs, Kalins and Warden,
played no part in Hathaway's determination to discharge Newsom, . . . ' The date of
this meeting;: correctly set out elsewhere in the Interin,ediafe Report, was January 30, not
January 15, 1951.
98 NLRB No. 146.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
generating plants. Harold L. Warden, Newsom's immediate super-
visor, testified at some length at the hearing concerning alleged errors
and omissions on Newsom's part in executing these forms. There-
after, Newsom was recalled as a witness and explained in a convincing
manner each of the alleged mistakes mentioned by Warden. A. care-
ful examination of the entire record convinces us that, even if Newsom
made the comparatively few errors and omissions on the forms at-
tributed to him by the Respondent, such errors and ommissions
would not have misled the skilled engineers for whom the forms
were executed. Accordingly, we reject the Respondent's contention
that Newsom's work records constitute persuasive evidence that he
was an unsatisfactory employee. In the circumstances we must con-
clude, as did the Trial Examiner, that Newsom's discharge was
motivated by his union activity, and thus was violative of Section
8 (a) (1) and (3) of the Act 3
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, San Diego Gas and Electric
Company, San Diego, California, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the International Brotherhood
of Electrical Workers, Local 465, affiliated with the American Federa-
tion of Labor, by discriminatorily discharging' any of its employees,
or by discriminating in any other manner in regard to their hire
or tenure of employment or any term or condition of employment.
(b) Threatening its employees for engaging in union activity or
in any other manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the International Brotherhood
of Electrical Workers, Local Union 465, affiliated with the American
Federation of Labor, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection, or to refrain from any and all
such activities except to the extent that such right may be affected
by a valid agreement requiring membership in a labor organization
I In so ruling we do not rely upon the Trial Examiner's finding, for which we find no
persuasive support in the record, that Hathaway admitted that he had discussed the
proposed discharge of Newsom with the Union' s business agent sometime before January
15, 1951.
SAN DIEGO GAS AND ELECTRIC COMPANY 881
as a condition \of employment, as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Cosby M. Newsom immediate and full reinstatement
to his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges, and make him whole
for any loss of pay he may have suffered by reason of the discrimi-
nation against him, in the manner provided in the Intermediate
Report.
(b) Upon request make available to the National Labor Relations
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
back pay due.
(c) Post at its plant in San Diego, California, copies of the notice
attached to the Intermediate Report marked "Appendix A." I Copies
of said notice, to be furnished by the Regional Director for the
Twenty-first Region, shall, after being duly signed by the Respond-
ent's representative, be posted by the Respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Twenty-first Region, in
writing, within ten (10) days from the date of the receipt of this
Order what steps the Respondent has taken to comply herewith.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed by Cosby M. Newsom, the
General Counsel of the National Labor Relations Board , herein respectively
called the General Counsel and the Board , by the Regional ' Director for the
Twenty-first Region ( Los Angeles, California), issued his complaint on June
12, 1951, alleging that San Diego Gas and Electric Company , San Diego, Cali-
fornia, herein called the Respondent , had engaged in and was engaging in
unfair labor practices affecting commerce , within the meaning of Section 8
* This notice , however, shall be, and it hereby is, amended by (a) striking from line 3
thereof the words "The Recommendations of a Trial Examiner " and substituting in lieu
thereof the words "A Decision and Order ," and (b ) changing the last full paragraph to
read "All our employees are free to become, remain , or refrain from becoming or remaining,
members in good standing of the above -named union , or any other labor organization,
except to the extent that such right may be affected by an agreement in conformity with
Section 8 ( a) (3) of the Act." In the event this Order is enforced by a decree of the
United States Court of Appeals , there shall be inserted in the notice before the words "A
Decision and Order," the words "A Decree of the United States Court of Appeals Enforcing."
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the complaint and the charges, together with notice of hearing
thereon, were duly -served upon the Respondent and Newsom.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent (1) since January 15, 1951, by means of certain stated
acts and conduct, interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act; and (2) on or about
January 31, 1951, discharged Newsom, and thereafter refused to reinstate him,
because he had designated International Brotherhood of Electrical Workers,
'Local Union X465, affiliated with, American Federation of Labor, 'herein called
the Union , as his collective bargaining representative and had engaged in con-
ceited activities with his coworkers for their mutual aid and protection.
The Respondent duly filed an answer denying the commission of the alleged
unfair labor practices. The answer affirmatively averred that Newsom was
discharged for good and sufficient reasons.
Pursuant to notice, a hearing was held at San Diego, California, from August
1 through August 3, 1961, before the undersigned, the duly designated Trial
Examiner. The General Counsel and the Respondent were represented by
counsel and participated in the hearing. Full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence pertinent to the
issues was afforded all parties. At the conclusion of the taking of the evidence,
the General Counsel moved to conform the pleadings to the proof. The motion
was granted xwithout objection. The parties were thenmad+ised'that they might
file briefs with the undersigned on or before August 20, 1951. A brief has been
submitted by counsel for the Respondent which has been carefully considered.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a California public utility corporation, with its principal
offices and plants located at San Diego, California, where it is engaged in sup-
plying Illuminating gas and, electricity for industrial, commercial, and domestic
use to the residents of the city and county of San Diego, California. The
Respondent purchases annually electricity, equipment, and supplies orginating
from outside the State of California valued in excess of $1,000,000.
The Respondent admits and the undersigned finds that it is, and during all
times material herein was, engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local Union 465, affiliated
with American Federation of Labor, is a labor organization admitting to mem-
bership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
Interference, Restraint, and Coercion ; the Discharge of Cosby M. Newsom
A. Sequence of pertinent facts
For the past several years the Respondent and the Union have had collective
bargaining contracts covering certain groups of the Respondent's employees;
SAN DIEGO GAS AND ELECTRIC COMPANY 883
however, the instrument technicians, of which during all times material herein
there were about five, were not covered by the said contracts.
In August or September 1950, Newsom' returned from Los Angeles, where he
had spent a portion of his annual vacation, and told a group of his fellow
instrument technicians' that', whereas the -Respondent's top instrument tech-
nician, after 3 years of service, was receiving only $1.60 per hour, the starting
wage of the instrument technicians employed in the same industry in the Los
Angeles area was $1.90 or $2 per hour. During the course of the discussion
which then ensued it was pointed out by one of the group that the differential
existing between what the Respondent paid its instrument technicians and that
received- by the Los Angeles area men "was due, primarily to the fact that the
latter group was unionized. The men then discussed the plausibility of having
the Union represent then; as their collective bargaining representative.
For reasons not here material, the question of the Respondent's instrument
technicians joining the Union lay dormant until a few days prior to January 15,
1951. Upon reporting for work that day, Newsom and two other instrument
technicians (Thomas Fowler and Roy Shroble) told Harold L Warden, instru-
ment engineer and their immediate superior, that the instrument technicians
felt aggrieved because of the low wages they were receiving in comparison to the
wages paid the Los Angeles area instrument technicians employed in the same
industry, and therefore they were considering asking the Union to represent
them for they felt that their only chance of receiving higher wages was through
union representation. Warden sympathized with their plight, told them of his
unsuccessful efforts to obtain, wa{ge- increases for the .instrument itechnic}ans,
rind"then"said that he would aid them in every way possible to further their
unionization program.
Immediately after Newsom, Fowler, and Shroble had left, Warden went to
the place where Ollie Webb and Tony Botwinis, the other two instrument tech-
nicians, were working and, after ascertaining that they also were of the opinion
that their only chance of securing wage increases lay in unionization, he told
Webb and Botwinis that he would help them in their endeavors.
Warden then went to the office of Joseph L. Kalins, efficiency engineer and
Warden's immediate superior, and apprised Kalins of the instrument technicians'
plans to join the Union. Warden and Kalins then proceeded to the office of
Charles_R. Hathaway, superintendent oi; the electrical department and, their
im^nediiate superior , and informed him of the ' ihstrument technicians ' iit`eritions
Hathaway requested that the instrument technicians be brought to his office later
in the day. • Pursuant to Hathaway's request' Warden, Kalins, and the five
instrument technicians met with Hathaway toward the close of the day shift.
Hathaway, the managerial spokesman, opened the meeting by inquiring who
was the employees' spokesman. He was informed that none had been selected
because the employees were attending the conference solely "to listen and not
to talk."' Hathaway then asked if the men's contemplated action was prompted
by any grievance other than the wage question and was informed that there was
none other. Hathaway then stated that the men should have sought an increase
Newsom entered the Respondent 's employ in February 1948, as a helper in the mainte-
nance , department . In the fall of that year , he was promoted to instrument technician
grade B and transferred to the electrical production department.
2,Warden testified that lie was, instructed by Hathaway to make it clear to the men that
the meeting has being called at Hathaway's "suggestion " and not at his "request."
Hathaway. on the other hand, testified that he requested the meeting.
3 Newsom, although not the official spokesman for the employees, "carried the ball"
and did most of the talking for them.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through normal company channels instead of attempting to enlist the aid of the
Union. Newsom responded by saying'that be had been informed that such a
course would avail the men nothing. Hathaway replied that had the men applied
to him, through Warden and Kalins, for wage increases, he would have given
the matter speedy consideration, whereas, because the Union's contract with the
Respondent had about a year more to run, he did not believe the,Union would
be able to get the men any action for, a long period of time. During the course
of the discussion that then ensued; Hathaway pointed out to the men that,
although he personally did not care whether the instrument technicians joined
the Union or not, he thought the Respondent's top management might object to
the instrument technicians being represented by the same union which was
the representative of the other employees because of the nature of the instrument
technicians' jobs, coupled with the fact that the instrument technicians had
access to certain confidential papers and records. Hathaway also stated that
the men should not join the Union before giving considerable thought to the
possibility that by joining they might forfeit certain privileges and advantages
which they were presently enjoying as nonunion employees. The meeting con-
cluded when the men stated that they would confer among themselves, discuss
the matter thoroughly, and then inform Hathaway of their decision.
Immediately after the above-related Hathaway conference, the five instrument
technicians met and decided to request the Union to represent them. In
furtherance of this decision, Newsom composed the following petition :
This is to certify that the undersigned, being a unanious (sic) majority
of the instrument technicians of the Electrical Production Department of
the San Diego Gas and Electric Company, do hereby assign Local 465, Inter-
national Brotherhood of Electrical Workers, A. F. of L. as the Collective
Bargaining Agent 'for the purposes of negotiating wage scale agreement
with the San Diego Gas and Electric Company.
Three copies of the said petition were typed by a notary public and then each
of the copies was signed and sworn to by the five instrument technicians before
the said notary public. One copy of the petition was immediately forwarded
to the Respondent's vice president in charge of operations and another copy was
sent to the Union.
Upon arriving at the plant the following morning (January 16) at the usual
reporting time, Newsom, Fowler, and Shroble were told by Warden, to quote
Newsom's testimony, ". . . our (instrument technicians) position didn't look
-too good, and that if he (Warden) were in our shoes he would get these affairs
in order because there is a possibility we may all be looking for other jobs."
Newsom further testified that Warden also said that the instrument technicians
,would find it difficult to obtain employment as instrument technicians elsewhere
because Warden doubted whether they had the necessary qualifications to combat
the competition they would encounter ; that Warden also informed them that
they would meet with strong opposition in their organizational move ; and that,
in response to Warden's remarks, he stated that he had no intentions of looking
for other employment until the instrument technicians had completed their
organizational drive.
Fowler testified that during the course of the aforesaid conversation, Warden
expressed doubt as to the instrument technicians' chances of getting into the
Union and then stated that he hoped their affairs were in order, whereupon the
men "assured him we were prepared to look for other work, if necessary."
Shroble testified that during the aforesaid conversation, Warden remarked
that he "hoped our family affairs were in order so we could look for another
job."
11
SAN DIEGO GAS AND ELECTRIC COMPANY 885
Regarding the talk he had with the afore-mentioned instrument technicians
on January 16, Warden testified that after being advised that the five instru-
ment technicians had requested the Union the previous evening to represent
them, -
I suggested to the men that they have their facts, figures, or substantiating
evidence, and so forth, in regard to their demands in very good conditions ;
that it would be necessary for them to have a good clean case for their de-
mands for more money. I advised the men to think this over very carefully
and not go up to the union with a case of demands for more money without
supporting facts ; that they should have all of their affairs connected with the
union activities in first-class condition before they presented it, because if
they should present a demand for more money and not have it substantiated
with facts and figures, undoubtedly their demands would be refused. In
the event their demands would be refused , it would be doubly hard for them
to again open demands for more money.
Warden, under questioning by Respondent's counsel, denied he said to Newsom,
Fowler, and Shroble , in substance or in effect, "Your position doesn't look so
good . If I were in your shoes, I would get my affairs in order as you might he
looking for another job" or stated to them, "if you fellows keep this up you will
be looking for another job" or "you better have your family affairs in order so
you can look for another job."
The undersigned was favorably impressed with the forthright and honest
manner in which Newsom, Fowler, and Shroble testified. Neither on direct
examination by the General Counsel nor under cross-examination by the Respond-
ent's counsel did they give any indication that they were attempting to suppress
the true facts. On the other hand, Warden did not so impress the undersigned.
The undersigned, however, was impressed by Warden's repeated denials of that
which was true and his constant attempts to explain that which was not true.
Upon the entire record in the case, the undersigned is convinced, and finds, that
Warden advised Newsom, Fowler, and Shroble on January 16, that if they con-
tinued their union activities their employment by the Respondent might be
short-lived. This conclusion is strengthened when consideration is given to (1)
the following testimony of Shroble given under cross-examination by Respondent's
counsel:
Q. And at that time you didn't construe it (Warden's remarks) as being any
threat that you would lose your jobs if you continued your union activity?
A. I belive I did. I believe I did a lot of thinking as to what would happen
if I did continue this.
and (2 ) Fowler's testimony that he construed Warden' s remarks to mean but
one thing, namely, that the instrument technicians would lose their jobs if they
continued their union activities.
On January 30, Hathaway held his usual weekly departmental meeting with
his two station chiefs.` By special permission , Kalins and Warden were permitted
to attend.
Hathaway testified, and his testimony with respect to this meeting is in sub-
stantial accord with the testimony of the others present, that after Kalins and
Warden had concluded their presentation of a proposed training program for
the instrument technicians and the plan had been unanimously approved, he
inquired of Kalins and Warden how the instrument technicians were perform-
ing their tasks ; that Kalins and Warden replied that all were doing satisfactory
4 Namely , Kenneth Campbell and Walter S. Zitlow.
998666-vol 98-53-57
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work except Newsom ; that he then asked each person present for his opinion of
Newsom's work ; that each replied it was not satisfactory and each added that
in his opinion Newsom "would not become a satisfactory instrument man and
should not he in the training course which was about to start" ; that he then
posed the question, "Should we terminate Newsom" ; that each person replied in
the affirmative ; and that he thereupon instructed Kalins to discharge Newsom.`
On January 31, Newsom, accompanied by Warden, went to Kalins' office where
Newsom was informed by Kalins, "you can apply for a transfer to another depart-
ment through personnel, you can resign and probably get letters of recommenda-
tion, or we will terminate you within two weeks." When Newsom asked Kalins
the reason for the aforesaid action, Icalins stated that Newsom's services were
unsatisfactory and then proceeded to enumerate certain incidents which occurred
during hits tenure of employment. After a brief discussion regarding the said
incidents, Newsom requested Kalins to call a meeting of all the instrument
technicians and to infornr them of the disciplinary action and the reasons
therefor. When Kalins asked the purpose of such an unusual procedure, Newsom
replied that the other men "were in the middle of a move to organize" and
therefore the action taken against him had "a bearing on the rest of the members
of the department ." Thereupon , Kalins summoned the other four men to his
office, informed them of the action taken against Newsom, and then stated the
purported reasons theerfor. Despite Newsom's detailed explanation that the
incidents cited for his seeming neglect of duty took place over a 3-year period,
that none was of recent date, that he previously had satisfactorily explained to
Warden's superiors, at the time Warden complained to them about the incidents,
that the incidents were of little or no consequence. Kalins remarked that Newsom
could no longer remain in the department . Kalins refused to recede from his
adamant position to rid his department of Newsom even though, in response to
his invitation to the instrument technicians to express their views with respect
to the said disciplinary action, Fowler "said," to quote Kalins, "something to the
effect that the men were all together in this thing and that he felt in his
[Fowler'sJ own mind that the company possibly [was] trying to fire Newsom in
order to break up their attempt at unionization; that they could, therefore, take
it to the National Labor Relations Board "
Newsom refused to resign or to request a transfer to another department On
February 15, the Respondent, because Newsom refused to take the aforesaid
action, discharged him.
B. The Respondent's defenses
In support of its contention that Newsom's discharge was not violative of the
Act, the Respondent called six`witnesses,6 each of whom was, at one time or
another during Newsom's employment with the Respondent, either Newsom's
immediate supervisor, or in charge of the instrument technicians' department,
or a supervisor at the power station where Newsom was performing work, and
hence in a position to appraise his work . The testimony of the aforesaid six
witnesses is summarized immediately below.
5 The instrument technicians, from time to time, work at the power station over which
Zitlow and Canrpbell have supervision and hence Zitlow and Campbell are thus afforded
an opportunity to appraise the work of the instrument technicians
9 Namely, Hathaway, Kalins, Warden, Campbell, Zitlow, John T. Hardway (efficiency
engineer from November 1948 until the end Of August 1950 when he reentered the United
States Navy, at which time he was succeeded as efficiency engineer by Killing), and 13 L.
Stovall ( assistant station chief from November 1948 until his reentrance into the United ,
States Navy in August 1950).
SAN DIEGO GAS AND ELECTRIC COMPANY 887
Warden testified that from the time he became Newsom's immediate super-
visor in March 1949, Newsom's work as "spasmodic" and was so unsatisfactory
that it did not create confidence on the part of the station chiefs or the other
supervisors with whom Newsom came in contact ; that in October 1949, he
spoke to Newsom in private and told Newsom that 'complaints had been received
from Zitlow about his work and then warned Newsom that his work would
have to improve ; that despite such warning, Newsom's work continued to be
unsatisfactory, and because of it he discussed Newsom's poor work with Hard-
way ; that in May 1950, he again spoke to Newsom and again warned Newsom
that his work must improve ; that in September 1950, Kalins, who had succeeded
Hardway,as head-of the instrument technicians, warned Newsom that if New-
som's work did not improve, Newsom would be discharged ; that in September
1950, because Newsom's work continued unsatisfactory, he recommended to
Kalins that Newsom be discharged. Warden further testified that Newsom
also engaged in "horseplay" with other instrument technicians to the detriment
of the department; that on more than one occasion Newsom showed disrespect
toward him ; and that in October 1949, Newsom remained away from the plant
for 3 days without permission and without advising him of his intended absence.
In support of his testimony that Newsom performed sloppy and careless work,
Warden produced, and testified with respect to, certain work records of Newsom.'
Hardway testified that in June 1950, Warden complained to him about New-
som's work and he spoke to Newsom about the complaint ; that he later received
other complaints about Newsom's work, but took no action with respect thereto
nor did he discuss them with Newsom ; and that prior to August 1950, he es-
tablished a system of rotation and noticed that when Newsom was paired with
other technicians the work of both "fell down" and when the same technician
was separated from Newsom the former's work improved. Hardway also testi-
fied that about 6 weeks after he had spoken to Newsom about the aforesaid
June 1950 complaint of Warden, he inquired of Warden how Newsom was per-
forming his duties and Warden replied, "All right but seemed to be slipping
again."
Stovall's testimony with respect to Newsom's work consists mainly of con-
clusionary statements to the effect that from October or November 1948, until
lie reentered the United States Navy in August 1950, he had heard of, and had
made complaints relative to, Newsom's work ; and that Newsom engaged in
horseplay, conversed too often and too long with any person with whom Newsom
came in contact.
Kalins testified that Newsom "was capable of a good deal of good natured
mischief" adding, however, "it is very difficult to supply any specific instances" ;
that in September 1950, that because Warden had complained to him about
certain unsatisfactory work performed by Newsom, he told Newsom, "there were
certain things we would not tolerate; that we knew [he was] capable of better
work than he was producing; that his work was sloppy and that be could cure
that by diligently applying himself" ; that Newsom "excused every action that
Warden accused him of and became rather excited about some of the things" ; that
he informed Newsom that Newsom's work must improve-or otherwise Newsom
would be discharged; that he concluded the conversation by informing Newsom
' These records were discovered after Newsom had been discharged and admittedly played
no part in the Respondent's determination to discharge Newsom Therefore the under-
signed finds that it would serve no useful purpose here to resolve the conflict in testimony
as to whether the records disclose that Newsomn's errors therein were or were not of a_
serious nature
8S8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Newsom's work would "be watched for a month" ; that in October 1950,
in his presence, he heard Warden tell Hathaway that Newsom was doing un-
satisfactory work; that again in November or December 1950, he heard Warden
complain to Hathaway about Newsom's poor, work ; and that Hathaway stated
that he and Warden "should be taking some action," to which they replied, "we
were waiting until a more opportune time."
Hathaway testified that the first complaint he received about Newsom was
early in 1950, from Campbell ; that the complaint was to the effect that the op-
erating personnel was losing faith in Newsom's inspection work ; that his in-
vestigation revealed that Newsom and Webb had been working on the complained
of instruments and he instructed Hardway to put Newsom and Webb on separate
jobs ; that several times thereafter he inquired of Hardway regarding Newsom
and each time Hardway reported Newsom "would do all right after discussing
the matter with him, but that his work would then become lax and he hoped
eventually [Newsom] would realize the situation and make a good man" ; that
Zitlow complained several times about Newsom's work;' that each time he
asked Kalins to investigate the complaints; that Kalins' reports were unfavor-
able to Newsom ; and that on two or three separate occasions prior to January
1950, he discussed Newsom's work with Kalins and Warden and each time Kalins
and Warden reported that Newsom's work was unsatisfactory.
. Campbell testified that just prior to May 1950, he received repeated complaints
from the operating men under his supervision regarding the ineffective manner
in which the control equipment was being maintained ; 9 that he complained to
Hardway about certain horseplay which he suspected Webb and Newsom had
engaged in ; that after he had investigated the matter he discovered that
Newsom was not involved, but "apparently he was enjoying the effects of it at
the expense of the storeroom men" ; that from time to time he asked Hardway,
Kalins, and Warden how Webb and Newsom were "getting along" because he
had recommended each of them for the job of instrument technician; and that
the answers to his inquiries were to the effect that Newsom's work was "spas-
modic."
Zitlow testified that while Newsom was working at his power station in
1949, he noticed that Newsom's work was lax and subject to criticism; that from
time to time he had received complaints regarding the poor character of
Newsom's work ; and that he noticed Newsom spent entirely too much time
in the office assigned to Newsom instead of being "at the scene of the work."
C. Concluding findings
The foregoing recital compels several conclusions. For example, it seems
incredible that if the Respondent regarded Newsom as guilty of all the short-
comings it now attributes to him, it would have retained Newsom in its employ
as an instrument technician so long as to become the oldest instrument technician
in point of service, or would have offered in January 1951 to allow him to
transfer to another department. Secondly, it leaves unexplained why the
discharge took place within a few weeks after, the instrument technicians
announced their intention of joining the Union, rather than during the period.
when the alleged complaints occurred. Under all these circumstances, it is
altogether clear that even assuming shortcomings in Newsom's work, it was
s Hathaway places these complaints as having been nrade several months after Newsom
started working at the power station which was under Zitlow's supervision . Newsom
started working there in 1949.
0 This work was being performed by Newsom and Webb.
SAN. DIEGO GAS AND ELECTRIC COMPANY".' 889
1
not the.shortcomings but his union activities which led to his discharge. This
finding is buttressed by (1) Hardway's statement to Newsom in December 1950,
when the former was visiting the plant, "It looks like this war may involve us
too, and if you and the rest of us return, remember this, Newt,10 there is a place
for you in the instrument department. I don't care whether you go back in the
Merchant Marine, the Navy, or what, but there is a place for you in the instru-
ment department"; (2) Kalins' statement to Newsom a few days before Newsom
was discharged to the effect that if Newsom resigned it "would make things
easier" and besides Newsom might be entitled to collect his vacation pay; (3)
Campbell's statement to Newsom made about a week prior to Newsom's leaving
the Respondent's plant on February 15, wherein Campbell told Newsom that
he should not be "broken hearted" over his plight, adding that he had recom-
mended Newsom very highly a year or so before and was sure that Newsom
would make his mark in the world for Newsom was strong, versatile, and able;
.(4) Warden's statement to Newsom around the first of 1950 that he was assign-
ing Newsom to certain "routine" work although he disliked to burden Newsom
with that type of work, but Newsom was the only man in the department
capable to do that work satisfactorily; (5) Warden's admonition to Newsom
several days after January 31 that Newsom must not talk to any employee dur-
ing working hours and if he discovered that Newsom was talking to any em-
ployee while at work about the disciplinary action which had been taken,
Newsom would be discharged forthwith; (6) Kalins' withholding Webb's pro-
motion to a higher classification because "the union activity had changed the
picture and they didn't know what would happen until things were settled" ;
and (7) the lack of disciplinary action against the other instrument technicians
who engaged in horseplay who allegedly performed unsatisfactory work.
Hathaway's testimony that he decided on January 30 to discharge Newsom
because of the unfavorable reports he received that day is inconsistent with his
testimony that sometime between January 15, the day he first heard of the in-
strument technicians' intention to join the Union, and January 30, he informed
his superior, General Superintendent Noble, of the organizational plans of this
group of employees.
Regarding this conversation, Hathaway testified as follows :
I told Mr. Noble these men mad discussed representation by the union
and that one of these men had not been satisfactory as an instrument man ;
that we had definitely decided he was not good and would probably ask
him to terminate. I asked him whether I should postpone the action until
the end of the union negotiations or whether I should go ahead and act
exactly as if the union negotiations had not been brought up.
* * s * s
Q. Did Mr. Noble at any time advise you or instruct you to terminate Mr.
Newsom's employment?
A. Yes. He said if the man's work was not satisfactory, by all means
to terminate him. He left the judgment up to the department, however, as
to whether he was satisfactory.
It is reasonbale to infer from what admittedly transpired at the aforesaid
meeting with Noble that Hathaway decided at the conclusion therof to dis-
charge Newsom. It thus follows that what Hathaway learned about Newsom
at the January 15 meeting with the station chiefs, galins and Warden, played
no part in Hathway's determination to discharge Newsom, for the decision
to do so had been reached by him prior to the aforesaid meeting. This finding
10 Newsom's nickname.
10
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is buttressed by Hathaway's admission that prior to the January 15 meeting,
he discussed with the then business agent of the Union the contemplated dis-
charge of Newsom and had received the business agent's assurance that Newsom
legally could be discharged if the sole cause for the discharge was Newsom's
unsatisfactory work.
Upon the entire record in the case, the undersigned is convinced, and finds,
that Newsom was discharged because of his leadership and participation in the
organizational campaign of the instrument technicians. The facts, as epitomized
above, disclose the familiar pattern of unfair labor practices Committed by an
employer seeking to thwart the incipient organizational efforts of his employees.
That the Respondent, from the start, was opposed to the instrument technicians
joining the Union, the collective bargaining representative of certain other of
its employees, is not open to question. Hathaway at the January 15 meeting
stated to the instrument technicians that he did not believe the Respondent
favored such an allegiance. Hathaway received the information regarding the
Respondent's said policy shortly before the said meeting from Noble, for
Hathaway testified, and the undersigned finds, that Noble told him prior to afore-
said meeting, "the company might have certain reservations concerning the
instrument men becoming members of the Union." The Respondent's antipathy
toward the instrument technicians joining the Union is further disclosed when
consideration is given to Warden's January 15 statements, uttered prior to the
Hathaway meeting of that day, that he would gladly aid the instrument tech-
nicians in their drive to organize and his January 16 statements that the men
would meet strong opposition in their efforts to unionize and if they persisted in
these efforts they might be discharged.
The undersigned further finds that by discharging Cosby M. Newsom on
February 15, 1951, the Respondent, in violation of Sections 8 (a) (3) and (1) of
the Act, discriminated with respect to the hire and tenure of his employment,
thereby discouraging membership in the Union and interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in Section
7 of the Act.
The undersigned further finds that by Warden's statement to Fowler, Newsom,
and -Shroble on January 16, 1951, that they might lose their jobs if they continued
their union activities, the Respondent violated Section 8 (a) (1) of the Act.
- IV. THE EFFECT OF THE UNFAIR LABOR-PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in Section III, above. occurring in
connection with the operations of the Respondent, set forth in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the hire and
tenure of employment of Cosby M. Newsom, it will be recommended that the
Respondent offer him immediate and full reinstatement to his former or sub-
stantially equivalent position " and make him whole for any loss of pay he
"The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
SAN DIEGO GAS AND ELECTRIC COMPANY 891
may have suffered by reason of the Respondent's discrimination against him by
payment to him of a sum of money equal to that which he normally would have
earned as wages from the date of his discharge to the date of the Respondent's
offer of reinstatement , less his net earnings during said period.1'
Loss of pay shall be computed on the hauis of each separate calendar quarter
or portion thereof during the period from the Respondent 's discriminatory action
to the date of a proper offer of reinstatement. The quarterly periods, herein
called quarters, shall begin with the first day of January, April, July, and October.
Loss of pay shall be determined by deducting from a sum equal to that which
Newsom would normally have earned for each such quarter or portion thereof,
his net earnings , if any, in any other employment during that period. Earnings
in one particular quarter shall have no effect upon the back -pay liability for any
other quarter."
It will also be recommended that the Respondent , upon reasonable request,
make available to the Board and its agents , all payroll and other records perti-
nent to an analysis of the amounts due as back pay.
The unfair labor practices found above reveal on the part of the Respondent
such a fundamental antipathy to the objectives of the Act as to justify an in-
ference that the commission of other unfair labor practices may be anticipated in
the future . It will be recommended , therefore , that the Respondent be ordered
,to cease and desist from in any manner interfering with, restraining , or coercing
its employees in the exercise of the rights guaranteed by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, Local Union 465, affiliated
with the American Federation of Labor, is a labor organization within the mean-
ing of Section 2• (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Cosby
M. Newsom, thereby discouraging membership in International Brotherhood of
Electrical Workers, Local Union 465, affiliated with the American Federation of
Labor, the Respondent has engaged in, and is engaging in, unfair labor practices,
within the meaning of Section 8 (a) (3) of the Act.
3. By such discrimination, by threatening its employees with discharge if
they engaged in protected concerted activities, and by interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair
labor practices, within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
11 Crossett Lumber Company, 8 NLRB 440
13 F. W. Woolworth Company, 90 NLRB 289
892, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in the INTERNATIONAL BROTHERHOOD
OF. ELECTRICAL WORKERS, LOCAL UNION 465, affiliated with the AMERICAN
FEDERATION OF LABOR, or in any other labor organization of our employees,
by discriminating in regard to their hire or tenure of employment or any
term or condition of employment.
WE WILL NOT threaten our employees with discharge for engaging in
activities protected by the aforesaid Act, or in any other manner interfere
with, restrain, or coerce our employees in the exercise of their right to self
,organization, to form, join, or assist the INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION 465, affiliated with the AMERICAN FED-
ERATION of LABOR, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all of such activities except to the extent
that such right may be affected by a valid agreement requiring membership,
in a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the National Labor Relations Act.
WE WILL offer to CosBY M. NEWSOM immediate and full reinstatement to
his former or substantially equivalent position without prejudice to seniority
or other rights and privileges previously enjoyed, and make him whole for
any loss of pay suffered as a result of our discrimination against him.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate against any
employee because of membership in or activity on behalf of any such labor
organization.
SAN DIEGO GAS AND ELECTRIC COMPANY
Employer.
By ----------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
HARCOURT AND COMPANY, INC.* and INTERNATIONAL PLATE PRINTERS,.
DIE STAMPERS AND ENGRAVERS UNION OF NORTH AMERICA, LOCAL.
No. 5, AFL. Case No. 9-CA-P29. March 317 1952
Decision and Order
On June 15, 1951, Trial Examiner George A. Downing issued his
Intermediate Reort in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief. The
Respondent's request for oral argument is hereby denied because
* See Order Denying Motion , 98 NLRB 1333.
98 NLRB No. 142.