Graham County Electric Cooperative, Inc.

4684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. We find that all production and maintenance employees em- ployed at the Employer's Ukiah, California, plant, including the cleanup men,4 but excluding office and professional employees, the pondmen,5 and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election, omitted from publication in this volume.] 4 We have included the cleanup men who perform some guard duties because the majority of their time is spent doing maintenance work. Wood Preserving Division of the Koppers Company, Inc., 90 NLRB 125 5 As the pondman has the power to make effective recommendations with respect to changes in the status of employees , we have excluded him as a supervisor. GRAIHAM COUNTY ELECTRIC COOPERATIVE , INC. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 1676, AFL. •Jase No. R1-CA-998. October 1.0, 1951 Decision and Order On June 15, 1951, Trial Examiner Irving Rogosin issued his Inter- mediate 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 Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of these allegations of the com- plaint. Thereafter the Respondent and General Counsel filed excep- tions to the Intermediate Report, together with supporting briefs. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report,2 the exceptions and briefs, and the entire record in 'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [Members Houston, Reynolds , and Styles]. 2 The Intermediate Report contains certain erroneous statements of fact, none of which affects the Trial Examiner's ultimate conclusions or our concurrence therein. Accordingly, we make the following corrections : (1) Contrary to the Trial Examiner's finding that the circumstances under which G. L. Morris' employment was terminated are not known , the record shows, as the Trial Exam- iner found elsewhere in his Report , that G. L. Morris quit his employment on December 20, 1950. (2) The Trial Examiner found that Cooper's duties consumed on the average 2 or 3 hours a day. However, the record discloses that Cooper on some days was kept busy all day, and on other days worked 2 or 3 hours a day. 96-NLRB No. 100. GRAHAM COUNTY ELECTRIC COOPERATIVE, INC. 68& this case, and hereby adopts the findings, conclusions, and recommen-- dations of the Trial Examiner with the following additions and- modifications: 1. In affirming the Trial Examiner's findings that the Respondent violated Section 8 (a) (1) of the Act, we do not rely upon Manager- Helmers' conduct set forth in Section III B of the Intermediate- Report, in seeking verification from some employees of their signature- to a designation "petition" which the Union had submitted as proof- of its majority representation. 2. On December 7, 1950, the Union, through its international repre- sentative, Shackelford, presented Manager Helmers with a letter con- taining the Union's initial request for bargaining.3 Helmers stated that the matter would be taken up with the Respondent's board of directors, and that the next meeting of the board would occur on. -December 19. At the December 19 meeting, the directors voted to, refer the Union's request to their attorney. On January 9, 1951, the- directors called a meeting of the employees; Shackelford was not notified of the meeting and did not attend. At this meeting Respond-- ent's president urged the employees to form a union of their, own and_ the question of wage increases was also discussed. The Trial Examiner found, and we agree, that this meeting was called for the purpose of dissuading the employees from remaining members of the Union and attempting to negotiate with them in the absence of their representative. He concluded that this conduct con- stituted an attempt to bypass the bargaining agent of the employees and was "tantamount to a refusal to bargain." However, the Trial Examiner found that the Respondent's initial refusal to bargain in violation of Section 8 (a) (5) and (1) of the Act did not occur until January 17, 1951, when the Respondent's attorney wrote 'the Union that the Respondent would not bargain with it because of the alleged inappropriateness of the proposed unit. While we agree with the Examiner's finding of airefusal to bargain on January 17, we find that the initial refusal to bargain in violation of the Act occurred on January 9, 1951, when, as the Trial Examiner found, the Respond- ent attempted to bypass and destroy the Union and negotiate directly with the employees.4 s As found by the Trial Examiner, the Union at that time represented the majority of the employees in the appropriate units. 4 Medo Photo Supply Corporation v. N. L. It. B., 321 U. S. 678. We do not agree with the contention of the General Counsel that the initial unlawful refusal to bargain occurred on December 7, 1950, when Helmers told Shackelford that he would have to consult with the board of directors. It does not appear that Helmers had any authority to act on the Union's request for bargaining. It was, therefore, reasonable for him to defer action thereon pending instructions from the board of directors ; nor do we find that the board of directors manifested an intent not to bargain with the Union when, on December 19, they referred the Union's request to their attorney for advice. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Graham County Electric Cooperative, Inc., Safford, Arizona, its officers, agents, suc- cessors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International Brother- hood of Electrical Workers, Local Union 1676, affiliated with Ameri- tan Federation of Labor, as the exclusive representative of all its employees in each of the following appropriate units : (1) All production and maintenance employees, excluding office and clerical employees, guards, professional employees, and super- visors. (2) All office and clerical employees, excluding production and maintenance employees, guards, professional employees, and super- visors. (b) Taking any unilateral action, without prior consultation with the said Union with respect to rates of pay, wages, hours, and other conditions of employment. , (c) Interrogating its employees concerning their union affiliation, activities, or sympathies, and promising or granting wage increases as an inducement to refrain from selecting such union as their bar- gaining representative. (d) 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 International Brotherhood of Electrical Workers, Local Union 1676, affiliated with the American Federation of Labor, or any other labor organization, to bargain col- lectively through representatives of their own choosing and to engage in, or refrain from engaging in, concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guar- anteed in Section 7 of the Act, except as authorized by 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) Upon request, bargain collectively with International Brother- hood of Electrical Workers, Local Union 1676, affiliated with the American Federation of Labor, as the exclusive representative of all the employees in each of the appropriate units above described with respect to rates of pay, wages, hours of employment, and other con- ditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. GRAHAM COUNTY ELECTRIC COOPERATIVE, INC. 687 (b) Post at its office and power plant in Safford and Pima, Arizona, copies of the notice attached hereto and marked "Appendix A." 5 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. (c) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of this Order what steps Respondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent discriminated in regard to hire and tenure and terms of employment of R. D. Cooper, J. E. Maner, Elmo Smith, and Carlton Spalding, and violated Section 8 (a) (1) of the Act, except as found herein, be, and it hereby is, dismissed. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their union affiliation, activities, or sympathies, or promise or grant them wage increases as an inducement to refrain from selecting such union as their bargaining representative, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 1676, 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, or refrain from engaging in, concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection. WE WILL bargain collectively, upon request, with the above- named union as the exclusive representative of all our employees in each of the appropriate units described below, with respect to 5 In the event that this Order is enforced by a decree of a United States Court of Appeals, ,there shall be inserted before the words "A Decision and Order " the words "A Decree of -the United States Court of Appeals Enforcing." 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rates of pay, hours of employment, and other conditions of em- ployment, and, if an understanding is reached , embody such understanding in a signed agreement. The bargaining units are : (1) All production and maintenance employees, exclud- ing office and clerical employees , guards, professional em- ployees, and supervisors. (2) All office and clerical employees, excluding produc- tion and maintenance employees , guards, professional em- ployees, and supervisors. WE WILL NOT take any unilateral action, without prior con- sultation with the above-named union, with respect to rates of pay, wages, hours, and other conditions of employment affecting the employees in each of the said units. GRAHAM COUNTY ELECTRIC COOPERATIVE, INC., 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, Intermediate Report and ' Recommended Order STATEMENT OF THE CASE This complaint, based upon a charge filed January 10, 1951, by International Brotherhood of Electrical Workers, Local Union 1676, A. F. of L., herein called the Union, was issued on April 3; 1951, by the General Counsel of the National Labor Relations Board, herein called the General Counsel,' and the Board, respectively, by the Regional Director for the Twenty-first Region (Los Angeles, California), against Graham County Electric Cooperative, Inc., Safford, Arizona, here called the Respondent 2 The complaint, as amended at the hearing, alleges that the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5), and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, as amended by the Labor Management Relations Act, 61 Stat. 136, herein called the Act. Copies of the complaint, the charge, and notice of hearing were duly served upon all parties. Specifically, the complaint, as amended, alleges in substance that the Re- spondent: (1) On various specified dates between December 8,"1950, and February 8, 1951, interrogated its employees concerning their union affiliation, the signing of a "petition" designating the Union as their bargaining representative under the Act, and their voting intentions in a representation election ; and promised I References to the General Counsel hereinafter are'to his representative at the hearing. 2 The article "The," appearing before the name of the Respondent in the caption of the complaint and other pleadings , has been omitted to conform to the corporate name as it' appears in the articles of incorporation. GRAHAM COUNTY ELECTRIC COOPERATIVE, INC. 689 them a wage increase if they did not select, and voted against, the Union in such an election, thereby interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7, in violation of Section 8 (a) ' (1)` of the Act. (2) On or about December 20, 1950 , laid off or discharged R. D. Cooper, J. E. Maner, Elmo Smith , and Carlton Spalding, because of their union affilia- tion or other concerted activities , thereby discriminating in regard to their hire and tenure and terms and conditions of employment , to discourage mem- bership in a labor organization , in violation of Section 8 (a) (3). (3) On and at all times after December 8, 1950, refused to bargain with the Union as the exclusive representative of its production and maintenance and its office and clerical employees , although the Union had been designated, on or about December 6, 1950, as their collective bargaining representative by a majority of the employees in each of said appropriate units, thereby re- fusing to bargain collectively with the duly designated representative of its employees , in violation of Section 8 (a) (5). (4) By the fdregoing conduct has interfered with, restrained , and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1). In its answer , combined with a motion to make more definite and certain, and to dismiss , filed April 12, 1951, the Respondent denies that it is engaged in commerce within the meaning of the Act , and generally denies that it has engaged in any unfair labor practices. Affirmatively , the Respondent admits that it laid off the employees named on the date alleged , but says that when work became available it offered reinstatement to, and reinstated , all but Elmo Smith and Carlton Spalding , who declined the offer. Further answering, the Respondent , without specifically denying the appropriateness of the units alleged, asserts that the issue should be determined by the Board in a repre- sentation proceeding ; denies the Union's majority status; and further denies that it has refused to bargain for reasons set forth in a narrative statement of its version of the events culminating in the filing of the charge.' Pursuant to notice , a hearing was held at Safford, Arizona, from April 17 to April 19, 1951, inclusive , before the undersigned duly designated Trial Ex- aminer. The General Counsel and the Respondent were represented by counsel ; the Union by its representative. All parties participated in the hearing, and were afforded full opportunity to be heard , to examine and cross-examine wit- nesses, and to introduce evidence relevant and material to the issues. With the introduction of the formal documents , the Respondent urged its motion to make more definite and certain, reserving the motion to dismiss, on jurisdictional grounds, until later in the hearing . On the representation of the General Counsel that he intended to rely only on those specific acts of inter- ference, restraint, and coercion enumerated in the complaint ,3 the motion to make more definite and certain was denied, with the express understanding that if during the hearing evidence were offered of acts or conduct not specified in the complaint , sought to be included by amendment to the complaint, such amendment would not be granted without affording the Respondent a reasonable opportunity to meet any evidence so adduced . With respect to the motion to dismiss, on the grounds that the complaint alleged acts and conduct subsequent to the filing of the charge, and failed to specify the relief sought, the motion was 3 Although the motion to make more definite was inadvertently directed to the allegations of refusal to bargain , it is clear from the pertinent colloquy at the hearing that it had actually been intended to refer to the independent allegations of interference , restraint, and coercion. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denied. When renewed at the close of the General Counsel's case, primarily oft grounds of lack of jurisdiction and insufficiency of proof, the motion was again denied. Renewed at the close of the evidence, on substantially the same grounds, the motion was taken under advisement. The motion is disposed of by the find- ings and conclusions hereinafter made. At the close of the evidence, the General Counsel and the Respondent availed themselves of the opportunity afforded all parties to argue orally on the record. Advised of their right to file briefs, and proposed findings of fact and conclusions of law, only the Respondent filed a brief, on May 3, 1951, which the undersigned has considered. Upon the entire record, and upon his observation of the witnesses, the under- signed makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Graham County Electric Cooperative , Inc., a nonprofit corporation organized? under the laws of the State of Arizona in 1945,4 is engaged in the business of generating, manufacturing, purchasing, accumulating, selling, and distributing electrical energy and power to its members in the Gila Valley, Arizona. Its plant and principal place of business is located at Pima , Arizona ; its offices at Safford. It is wholly financed by the National . Rural Electrification Admin- istration, herein called the REA, which is secured by a mortgage amounting to^ nearly $1,500,000, covering all the Respondent 's assets, and which renders ad- visory service in engineering , operational , financial , and management problems, and reserves the right to approve of the cooperative's manager. The Gila Valley, which the Respondent serves, is an area about 40 miles long and from 1 to 6 miles wide, on both sides of the Gila River. About 37,000 acres, in the midst of an otherwise arid, barren, wasteland , is under cultivation by means of irrigation farming. Water is obtained by gravity flow from the Gila River through the use of a system of canals operated by 8 or 9 canal com- panies, in which most of the farmers are members. Due to the critical shortage of water, however , amounting, in effect, to a drought during all but one (1949) of the past 11 years, the farmers have been obliged to resort to underground sources to supplement the water supply. Wells have been dug for this purpose and equipped with pumps which , until comparatively recently , were powered ex- clusively by gasoline or Diesel engines. In recent years , however, electricity has been introduced and utilized to a considerable extent. Between 1939. and 1946 , the area had been served by Sulphur Spring Valley Cooperative . When it learned that the Respondent's cooperative had been organized , it offered to sell the Respondent its surplus power, and later served. it on an irregular and intermittent basis with frequent interruptions in service without notice . This arrangement proved unsatisfactory and, on July 15, 1946, with the approval of the Arizona Corporation Commission , the Respondent acquired the plant facilities of Arizona General Utilities Company, a corporation which had served the Safford area , with power lines to Solomonsville and Pima and the city of Thatcher , adjoining Safford. The Respondent thereafter rebuilt the power plant which it had acquired and commenced operation on July 4, 1947, eventually extending its power lines from 75 to approximately 300 miles. - At the time of the hearing, of a total of about 400 irrigation pumps in the Gila Valley, approximately one-third were using electricity , with others awaiting 4 Prior to the enactment of the State statute -governing the organization and operation of electric cooperatives. GRAHAM COUNTY ELECTRIC COOPERATIVE, INC. 691 service until increased facilities of the Respondent will permit. The principal crops raised in the valley are cotton , hay, alfalfa , and small grains. During the year 1950 , the average number of consumers of all types served by the Respondent was 1,745; as of December 31, 1950, the total number was 1,849. These consumers consisted, on an average , of 603 farm rural consumers, 827 nonfarm rural consumers , 5 small commercial consumers , 6 large power con- sumers, the town of Pima , for street lighting, and municipal utilities at Thatcher and Safford . The number of irrigation consumers as of December 31, 1950, was 164; the average for the year, 151. The Respondent also sells electricity at wholesale to the Duncan Electric Cooperative , serving the town of Duncan and vicinity, and a small portion of New Mexico . The town of Safford, with a popu- lation of about 3,600, has been served by its own municipal central power plant except for a short period , about 3 months before the hearing, when it was served by the Respondent as an accommodation while the Safford plant was being overhauled. During the year 1950 , the Respondent purchased supplies , materials, and equipment , valued at approximately $81,000, of which about $12,000 represented construction materials including poles, cross arms, conductors , insulators, elec- trical conductors , and other hardware , purchased chiefly from a distributor in Phoenix, Arizona , but originating outside the State; approximately $31,000 rep- resented transformers , purchased from the same source and also originating outside the State ; $27,000 , natural gas purchased from City Utilities Company, Pima, Arizona , sold to it by the El Paso Natural Gas Company, and delivered by pipeline from the State of Texas ; $8,000, Diesel fuel purchased from a local distributor of Richfield Oil Corporation ; $3,000, lubricating oil purchased from the same source ; and about $2,000, engine parts purchased from a manufacturer in, and shipped to the Respondent from, Los Angeles, California. During the same period , the Respondent sold and distributed to its consumers electricity valued at $245,046 94, of which $40,213.93 in value was sold to rural farm consumers , defined as farmers residing on and operating farms consisting of at least 3 acres ; $43 ,433 88, to nonfarm rural consumers consisting of resi- dential consumers in unincorporated rural areas and small towns, such as Pima, not primarily agricultural ; $35,177 25, to small commercial consumers such as filling stations, grocery stores , and similar retail outlets ; $26,143.61, to large industrial consumers such as cotton gin and packing plant operators , requiring more than 15 kva of transformer capacity ; $14,669 98, at wholesale to the towns of Thatcher and Safford ; $11,298.40, to other REA utilities ; $72,295.80, to irri- gation consumers , i. e, rural farm consumers other than domestic farm users; $1,566 59 , in miscellaneous revenue from inspection fees, wiring, payments for additional connections , and the like ; and $247 .50, to the town ,of Pima for street lighting. Of-the approximately $26,143.61 in value of electricity sold to large industrial consumers , $22,573.17 was sold to Producers Gin Company , an enterprise owned by farmers ' in the valley, operator of 5 cotton gins, and Safford Packing Com- pany, a wholly owned subsidiary of the Producers Gin Company . The ginning company performs the service of ginning and baling the cotton grown in the area, issuing warehouse receipts to the farmers who retain title to the cotton. During the year 1950, there were approximately 19,000 acres under cotton cultiva- tion, which produced short and long staple or Egyptian cotton valued in the aggregate at $4,500,000 . None of the cotton thus produced was consumed or further processed locally, -but was sold by the farmers , through cotton brokers, to such industrial consumers as U. S. Rubber Company and the E. I. DuPont Company, for shipment to points outside the State throughout the United States. {692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The cottonseed oil and meal derived as byproducts are usually sold by the farmer-owners to the Producers Gin Company, and the meal is repurchased by the farmers for the feeding of livestock, raised by them in herds of 1 or 2 carloads each. During the fiscal year July 1, 1949, to June 30, 1950, the Pro- -ducers Gin Company sold 30 carloads of cottonseed oil, valued at $194,252.67, through brokers in Los Angeles, California, for shipment to various points -outside the State of Arizona throughout the United States. Of the cattle raised locally, approximately 95 percent is sold to Safford Packing Company, and the balance to the Cudahy Packing Company at Phoenix, Arizona. At the time of the hearing, Safford Packing Company had at its plant some 3,200 lead of cattle, which were being fattened on meal purchased from the Producers Gin Company. During the fiscal year above mentioned, Safford Packing Com- pany fattened and slaughtered approximately 7,000 head of cattle purchased from farmers locally. All such cattle was processed and sold entirely within ,the State to obviate the necessity for Federal inspection. Of the byproducts from the slaughtering operations , hides valued at approximately $68,608.43 were sold to buyers, f. o. b. Safford, Arizona, and shipped by them to various States outside the State of Arizona. There are no tanneries in the State of Arizona. The offal was sold to a rendering company in Phoenix, Arizona, and, after further processing by that company, shipped as tallow to undisclosed destinations. Although the cotton gins of Producers Gin Company at Pima and Safford were formally operated by Diesel engines, within the past 2 years the gins have been converted to electricity, which has been furnished by the Respondent. With respect to the cottonseed oil mill, about 60 percent of the power is furnished by Diesel engine, the balance by electricity also supplied by the Respondent. On the basis of the foregoing facts, the Respondent contends that the opera- tions of the Respondent are essentially local in character, and that it will not effectuate the purposes of the Act for the Board to assert jurisdiction over it. Apart from other factors detailed herein, the record discloses that of electricity sold and distributed to consumers valued at $245,046.94, $ 72,295.80 represented electricity sold to rural farm consumers necessary to the operation of irriga- -tion pumps for the cultivation and production of cotton, valued in the aggregate at $4,500,000, destined for out-of-State shipment. In addition, the evidence establishes that during the same period the Respondent sold and distributed electricity valued at $26,143.61 to Producers Gin Company and Safford Packing Company, necessary for ginning operations in the production of such cotton, cottonseed oil, valued at $194,252.67, and hides valued at approximately $68,608.43, also destined for out-of-State shipment. Without regard to other factors, it is abundantly clear that industrial strife -at the Respondent's plant resulting in interruption or cessation of its operations would result in obstruction to commerce and the free flow of commerce among the several States. Moreover, in view of the nature of the Respondent's opera- tion as a public utility, the undersigned finds, in accordance with the Board's recently announced policy, and contrary to the Respondent's contention, that the Respondent is not only engaged in commerce within the meaning of the Act, but that it will effectuate the policies of the Act to assert jurisdiction .5 5 Hollow Tree Lumber Company, 91 NLRB 635; W. C. King, d/b/a Local Transit Lines, 91 NLRB 623 ; Appalachian Electric Cooperative, 93 NLRB 1348; Plymouth Electric Co- .operative, 92 NLRB 1183 ; Cherokee County Rural Electric Cooperative Association, 92 NLRB 1181 ; Wheatland Electric Cooperative, Inc., 94 NLRB 109. It should be noted that Platte-Clam Electric Cooperative, Inc, 83 NLRB 863, relied on by the Respondent, was decided before the. recent policy of the Board was announced and, to the extent that it is inconsistent with the Board 's present policy, must be regarded as overruled Moreover, GRAHAM COUNTY ELECTRIC COOPERATIVE, INC.. II. THE ORGANIZATION INVOLVED 693 International Brotherhood of Electrical Workers, Local Union 1676, affiliated with the American Federation of Labor, is an organization admitting to member- ship employees of the Respondent. M. THE UNFAIR LABOR PRACTICES A. Formation of the Union Employee dissatisfaction with wages furnished the impetus for the formation of a labor organization at the Respondent's plant late in 1950. A representative of the Union was invited to Safford and, after an organizational meeting in November, a charter was issued in the name of Local No. 1676. At the charter meeting on December 6, 1950, John Hicks was elected and installed as president, and Carlton Spalding as financial secretary and treasurer. At this meeting 1S of the 22 nonsupervisory employees of the Respondent, including office and clerical employees, signed a letter, dated December 6, 1950, addressed to Howard E. Helmers, manager of the Respondent, notifying him that they had designated the Union as their collective bargaining representative. The following morning International Representative Alfred Shackelford called on Helmers, and presented him with the letter of designation, accompanied by a covering letter advising that the Union had been designated by "practically all of your employees, in a unit which we consider appropriate," and suggesting an early meeting for the purpose of negotiations. Helmers told Shackelford that inasmuch as he was only the manager, directly responsible to a board of directors, he would take the matter up with the board and communicate with Shackelford thereafter. Shackelford asked when the next meeting was to be held, and was told that the regularly, scheduled meeting had been postponed to December 19, to permit consideration of bids for the construction of a power line from the Respondent's plant at Pima to connect with a line of the Sulphur Springs Valley Cooperative, and ultimately with a Bureau of Reclamation substation. Shackelford asked Helmers for an oppor- tunity to appear before the board of directors, and received the impression that he would be afforded such an opportunity. In any event, he asked Helmers to notify him of the board's decision. B. Sequence of events; interference,' restraint, and coercion A day or two later Manager Helmers confronted Carlton Spalding, a work order clerk, in his office, and placing the designation "petition" before him, asked if that was his signature. Spalding acknowledged that it was. At least two other employees, according to the admissions in the Respondent's answer, were similarly questioned. The contention that this was done merely for the purpose of verifying their signatures is, of course, no justification for this con- the Board there held merely that while it did not find that the employer' s operations were wholly unrelated to commerce , it did not believe that assertion of jurisdiction would effectuate the policies of the Act The undersigned's conclusion regarding the Respond- ent's operations in commerce is not affected by the fact that the Respondent anticipates that beginning about October 1951, it will receive 2500 of the 5000 kilpwatts of power it has contracted to purchase fronr the Arizona Power Authority, originating at the Davis Dam on the Colorado River , over power lines under construction by the Respondent, and that its existing plant will thereafter be utilized merely as a stand -by plant in case of emergency. 974176-52-vol. 96-45 I 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duct. Apart from the fact that other means of verification were readily available to the Respondent, especially in the case of Spalding, whose duties required him to sign a bariety of company documents, such interrogation has been held to constitute unlawful interference with the right of employees to the full freedom of self-organization guaranteed by the Act, and coercive per se.e Several days or a week later, Helmers notified Walter Batty, the Respondent's president and chairman of the board of directors, that the employees had des- ignated the Union as their bargaining representative, and showed him the "petition." Helmers also mentioned that Shackelford had requested an oppor- tunity to meet with the board of directors. No action was taken, however, either with regard to the demand for recognition or the request for an opportunity to meet with the board until the directors' meeting of December 19. On the morning of December 19, Spalding asked Afton Shreeve, the office secretary, when the next meeting of the board of directors was to be held. She told him that she did not know because the regularly scheduled meeting had been postponed, and asked why he wanted to know. Spalding remarked, "Well, maybe a lot of us would like to know that." Later that morning Helmers went to Spalding's office, and told him angrily, "Carlton, if you don't stop talking union on co-op time, I will fire you." Spalding denied that he had been doing so, but Helmers insisted that he had been "talking nevertheless." There was no showing that Spalding had actually engaged in discussions about the Union during working time. That afternoon Afton Shreeve asked him if he were "in trouble." He told her that he "certainly was." Shreeve then told him that after he had inquired of her when the next meeting of the board of directors was to be held, she had asked Helmers. Helmers asked her who it was that wanted to know. When she said that it was Spalding, Helmers told her that he would speak to him. The same day Helmers told employee Aaron D. Nelson, "There will be no more union meetings on company time." Asked what he meant, Helmers re- plied, "I mean just that." Nelson admitted in his testimony, however, that earlier that day he and another employee had engaged in conversation in the presence of other employees, and when Helmers appeared, the group dispersed. Although Nelson did not testify to the substance of the conversation, he admitted that there had been considerable discussion about the Union among employees during this period, some of it on company time. There was no showing of a company rule or announced policy against general conversation during working time, or that the casual conversation in which these employees engaged inter- fered with their work. Nevertheless, on this state of the record,-and in the absence of any showing that Helmers' admonition to 'Spalding and Nelson was prompted by antiunion considerations rather than a genuine purpose to prevent employees from being diverted from their work, the undersigned finds that the Respondent has not, by Helmers' admonitions, infringed on the rights of its employees, and has not thereby interfered with, restrained, or coerced its em- ployees in the exercise of-rights guaranteed by the Act. That night, December 19, the meeting of the board of directors was held. President Batty submitted the "petition" of the employees designating the Union, and, after discussion among the directors, it was voted to refer the matter to the Respondent's attorneys. Manager Helmers then presented the annual finan- cial statement, which showed a net operating deficit. After some discussion regarding the cooperative's financial condition,'the critical shortage of mate- rials required in the Respondent's operations, and the excessive payroll in rela- Standard-Coosa-Thatcher Company, 85 NLRB 1358. GRAHAM COUNTY ELECTRIC COOPERATIVE, INC. 695 'tion to its "minimum construction and operational requirements," a resolution was passed instructing Helmers to lay off or discharge immediately all unneces- sary employees . No specific decision was made as to the number of employees to be laid off, or the classifications in which the layoffs were to be effected. Nor was any determination made as to the method of selection . These decisions were left by the board to Manager Helmers and the line superintendent , although it was generally indicated that one of the three existing crews , consisting of a lineman and two groundmen , should be laid off because the directors felt there was only enough work for two crews. Next day, shortly after the end of the 4: 30 p. in. shift, Manager Helmers laid off R. D. Cooper, J. E. Maner, Elmo Smith , and Carlton Spalding. On about December 28, 1950 , Grover Windsor, chief operator in charge of the powerhouse,' engaged John Hicks in a conversation behind the powerhouse, Hicks, a maintenance man, electrician , and assistant operator , was, it will be remembered, president of the Union Local. Windsor asked Hicks if he realized that "this union deal" was holding up a general wage raise. Hicks said he did not. Windsor told him that the Company was willing to grant a wage raise, but did not want the Union to receive the credit for it, and that "as soon as we got them out of the way they were going to give us a raise ." Windsor also asked Hicks if he knew that employee Morris had told Helmers that he would renounce the Union if Helmers would give him his job back . Hicks said that he had not heard that, and the discussion ended 8 Late in December or early in January 1951 , Helmers had a conversation with Hicks in the powerhouse office, in Windsor's presence, in which Helmers said that he had been trying to find out "who was the head of the union ," and asked him to "enlighten" him as to the reason the men had joined the Union. On January 9, 1951 , Helmers notified Hicks that the board of directors wanted to meet with the men that evening and asked him to notify them . That night a meeting was held at the offices of the Respondent , attended by most of the em- ployees. The union representative was not invited or notified of the meeting. The entire board of directors , and Guy Anderson, attorney for the Respondent, were present, as were Line Superintendent Peck and Chief Powerhouse Operator Windsor. President Batty opened the meeting , and asked to hear from the employees' "spokesman." Hicks suggested that since the Respondent had proposed the meeting, it would be more appropriate to hear from the directors first. Batty, however, invited discussion. Several of the employees voiced their grievances, and gave their reasons for joining the Union. Roy Gardner, one of the directors , asked whether the employees had invited the union organizer to come to the plant or whether he had done so on his own initiative. Hicks told him that the organizer had come at the employees ' invita- tion. Later, Gardner asked whether the "local electricians " in the Valley or the "Co-op" employees had asked the organizer out. Hicks repeated that it had been the employees. President Batty recommended that the employees form their own union instead of bringing one in "from the outside," land said that the Respondent would deal with the employees "just the same as if [they] had any other organization." ' Windsor's status as a supervisor is undisputed His name does not appear on the list of nonsupervisory employees furnished at the hearing by the Respondent, and received in evidence. 8 The record does not disclose the circumstances under which Morris had been laid off or discharged . Presumably this was not related to the layoffs of December 20, 1950. The name Gilbert L. Morris, apparently the employee involved , appears as ,one of the signatures to the letter designating the Union. 696 DECISIONS "OF NATIONAL LABOR RELATIONS BOARD He pointed out that by forming their own organization , they could keep the union dues instead of sending them to union headquarters in the East . Reminding 'them that they had all "grown up together and [knew] each other," he urged the employees to "organize this in a more peaceful way [without bringing] in a union from the outside." Some of the employees remarked that if they formed their own organization without any national support, they would have no security against being laid off at any time , as they had been before. J. David Lee, vice president and member of the board of directors, chided the employees for their apparent lack of confidence in the board's integrity. Employee Hoyt Martin asked how the Respondent could expect such confidence in view of the recent layoffs. Lee reminded him that when the cooperative began its operations, it hired and trained the "local boys" instead of hiring trained operators. Joining the discussion, Attorney Anderson explained that the Respondent did not object so much to organization by its employees as to the fact that a national or international union would probably insist that the Respondent man each shift with more men than necessary, and thereby engage in "featherbedding." Em- ployee Ervin Saline asked why the matter.had not been discussed with Inter- national Representative Shackelford. Some of the directors said they did not care to do so, others, that they were not aware that he had called. Manager Helmers then mentioned that Shackelford had offered to meet with the board to explain the Union's policy. During the meeting Anderson also raised some question regarding the bargain- ing unit, stating thafthe classifications were "all wrong," but that he did not know much about it and intended to consult with another attorney. • Saline asked the directors what they had to offer, but Batty said that although the Respond- ent was probably "at fault" for not having done something about wages sooner, they were in no position to make any offer that night. On January 12, 1951, International Representative Shackelford called on Manager Helmers to discuss the layoffs of December 20. Shackelford told him that he was reluctant to file unfair labor practice charges even though, in his opinion, Helmers had committed unfair labor practices as far back as early De- cember, when he had questioned employees about their signatures to the desig- nation petition. He expressed the hope that there would be no repetition of such conduct which would only aggravate the situation. Shackelford then askea why he had not been notified of the decision of the board of directors on the mat- ter of recognition. Helmers told him that the matter had been referred to At- torney Anderson, and suggested that he call on him. Shackelford said that another union representative had done so earlier that month, and that Anderson was to have advised him of the Respondent's decision, but had failed to do so. Observing that it was evident that the Respondent had no intention of recogniz- ing and bargaining with the Union unless ordered to do so by the Board, Shackel- ford told him that if the matter were not disposed of amicably a'representation petition would be filed. - As will appear -hereinafter, such a petition was filed on February 7, 1951. It was stipulated, however, that the Respondent was never served with a copy of the petition. As will also appear, the petition was with- drawn with the approval of the Regional Director, on February 19, 1951, because of the outstanding unfair labor practice charge. Meanwhile, a meeting was held on the night of January 23, 1951, at the home of Idella McBride, called at the request of McBride and Etchel Spalding, wife of Carlton, and a former employee of the Respondent. McBride had been laid off shortly before, and the two women sought to acquaint management with the position of the employees. President Batty, and Directors Curtis, Gardner, Web- ster, Gould, and Alder were present on behalf of the Respondent ; Spalding, his wife, McBride, and Hicks, on behalf of the employees. GRA-HAM-COUNTY ELECTRIC COOPERATIVE, INC. 697 Although Spalding stated that the meeting had not been called to discuss unions, he and the others related various grievances which had impelled them to join the Union. The directors repeated that they believed the employees were wrong to form a union. Spalding told them that, in his view, the Union would solve some of the difficulties of the cooperative by stabilizing wage rates through collective bargain- ing, thereby eliminating the "wrangling" and complaints of injustice and dis- crimination over wages, which had existed since 1946. The directors insisted that the employees were being misled. President Batty reiterated that he thought the employees should drop the Union ; that the cooperative did not approve of "outsiders" telling them how to run the business ; that if the employees wanted a union, they should form their own company or "co-op union," and that if they did so, the Respondent would feel much freer to deal with them. Spalding observed that the employees would be powerless to deal with the Respondent through a union of their own. Batty assured him that since they all lived in the same community and had known each other intimately over the years, the Re- spondent would be honest and fair with them. Spalding asked the directors what they would consider a fair wage increase if the employees "[broke] away from the I. B. E. W." Although apparently un- prepared for the suggestion, Batty mentioned "probably about 10 percent." Gould asked to see a copy of the union contract, but Spalding told him that the Union had not yet formulated any proposals. Gould then asked what the em- ployees would expect in the way of a wage increase. Spalding said he did not know. Gould persisted, "Well, you joined the union for some reason. You must know what you are going to ask for." Spalding replied, "Well, I joined the union for protection primarily, and for a wage increase that is true, but I still don't know what we are going to ask for." He did, however, tentatively mention "a dime or maybe a quarter." The directors spoke of what they regarded as unfair union tactics, citing examples of featherbedding. Spalding assured them that the Union would be operating under its own bylaws, constitution, and bargaining contract, and would not accept dictation from any other source. Batty said that he believed Spalding was sincere, but that he was being misled. Spalding suggested that the reason the directors were opposed to the organization of its employees was that they were apprehensive lest the farmhands organize into a farm labor union. Gardner said that before he would hire a union farmhand, he would turn his farm into grazing land. The meeting ended indecisively. On February 7, 1951, Chief Operator Windsor posted a notice to the employees at the powerhouse of a meeting to be held at 8 o'clock next morning. At the appointed time, John Hicks, Berry West, Hoyt Martin, Norris Whitecotton, and Bill Kieffer, all powerhouse employees, assembled, to be joined shortly by Windsor. He told them that it was probably unnecessary to state the purpose of the meeting, but informed them that they would lose the 25-cent raise which the Respondent had been considering if they did not "get rid of this union, because that is why they are giving it," adding, "I didn't intend to refer to it now. We have got to say whether you are going to forget it or not." After some discus- sion, Windsor asked Whitecotton how he intended to vote in the election. White- cotton refused to commit himself. Windsor put the same question to West. West replied, "Well, I don't know as I have to tell anyone how I intend to vote. This is to be a secret election and I don't think I have to tell anyone." Windsor questioned Martin and Kieffer in turn, and received substantially the same response. Windsor then told them that unless they voted the way the company wanted, they would not receive the raise. Finally, Windsor remarked that there 698 DECISIONS -OF'-NATIONAL LABOR RELATIONS BOARD was no point in arguing with a "bunch of union hardheads ." Later, he warned them that if anything were said about that meeting outside , or if a report of it reached the Labor Board, the men would have to answer to him personally. Later that morning, West, Whitecotton, and Kieffer called on President Batty at his home. Kieffer told Batty that he had brought the men there "to hear [Batty] say that [they ] were going to have a raise." Batty told them that the board of directors had first considered a raise of 10 percent , and later decided that that would probably,be.unacceptable, and that they .were willing to,grant a, 25 cents an hour general wage increase if they could do so under the existing "wage freeze." He agreed that the employees needed more money, and promised to get it for them as soon as it could be done. The men then asked Batty if he had instructed Windsor to find out how they intended to vote, and whether they intended to remain in the Union. Batty told them that that was none of the cooperative 's business. Told that Windsor had said they would lose their jobs unless they resigned from the Union , Batty, assured them that Windsor had spoken without authority ; that he regarded them as valuable employees ; that no one would be laid off or discharged for union activities, or in the event the Union won the election ; and that neither he nor any of the other members of the .board wanted to know how they intended to vote. He also told them that Windsor had been "completely out of line in calling such a meeting," and that he had done so without authority. At about noon the same day, Whitecotton returned to the powerhouse, and' reported to Hicks and Martin what Batty had said. Next day, Windsor apolo- gized to the men, saying that he had been "mad" at the time, and assured them that it would not happen again. In calling the meeting of the employees under his supervision , interrogating them as to how they intended to vote in the election , and stating that they would forfeit their wage raise if they did not abandon or renounce the Union, Windsor engaged in a most flagrant type of interference , restraint, and coercion. Even in the absence of express authority to call the meeting , to interrogate the employees, and make the coercive threats, in view of his undisputed status as a supervisor, this conduct would ordinarily be imputable to the Respondent. However, in view of the prompt repudiation and disavowal of Windsor 's statements and conduct by President Batty to three of the five employees to whom the statements were made; Batty's assurance to them that there would be no reprisals against employees for engaging in union activities ; his further assurance that he and the other directors had no desire to know how they intended to vote; his statement to them that the meeting had been called by Windsor without authority from any management official, all communicated soon afterward by one of these employees to the two others who did not personally hear the statements repudiated ; and finally, in view of Windsor's own apology and retraction the next day , the undersigned concludes and finds that the Respondent effectively disavowed and repudiated Windsor's statements and conduct on February 7, 1951. There was no showing , however, that any mention was made in the discussion between these employees and President Batty of similar remarks by Windsor to Hicks, on or about December 28, 1950, to the effect that the Respondent had been withholding a wage increase because of the Union . However, although the matter is not altogether free from doubt, especially since more than a month had elapsed from the date that state- ment had been made before any purported repudiation , the undersigned finds that Batty's disavowal of Windsor 's statements and conduct was broad enough to include the latter's earlier remarks on December 28. It is, therefore , found that the Respondent has not, by Windsor 's statements and conduct on December 28, 1950, and February 7, 1951, interfered with , restrained , and coerced its employees in the exercise of rights guaranteed in the Act. GRAHAM COUNTY ELECTRIC COOPERATIVE, INC. 699 The evidence regarding statements and conduct attributed to various manage- ment representatives is not seriously disputed. Thus, it is not denied that after being notified that a majority of the employees had designated the Union, Manager Helmers questioned Spalding and other employees concerning their signatures to the "petition." So, too, with regard to Helmers' interrogation of Hicks late in December or early in January, as to the reason the employees had joined the Union. Again, except possibly for differences in shading or emphasis, the evi- dence of what occurred at the meeting between the board of directors and the employees on January 9, and the meeting at the home of one of the employees on January 23, in which the directors questioned the employees about their organizational activities, and urged them to form their own organization instead of joining an "outside" organization, is substantially undisputed. The Respond- ent's contention that because of the affinity between management officials and supervisors, on the one hand, and the employees on the other, as friends and neighbors of many years' standing, the interrogation, statements, and remarks were innocuous, noncoercive, and merely a neighborly exchange of views on a subject of mutual interest, is not persuasive. The conduct in which the Respond- ent engaged has repeatedly been held by the Board and the courts to constitute interference, restraint, and coercion, and the relationship which existed between employer and employee could scarcely have dissipated the necessarily coercive effect of such conduct. On the contrary, it is more probable that the very exist- ence of this relationship, and the subtle appeals to the employees' sense of fealty and gratitude, rendered the statements more compelling than they might other- wise have been. Despotism may frequently be discerned masquerading in the garb of paternalism. The undersigned, therefore, finds that by the statements and conduct of its officers, directors, managing agent, and supervisors found above, except as already stated, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby violating Section 8 (a) (1). C. Discrimination in regard to hire and tenure of employment On December 20, 1950, at the completion of the 4: 30 p. m. shift, the "outside men" on that shift returned to the company office. Manager Helmers called out the names of five men, R. D. Cooper, J. E. Maner, Ervine Saline, Elmo Smith, and Carlton Spalding, and told them to accompany him upstairs. There he read them the following resolution passed by the board of directors at a meeting the night before: Resolved that inasmuch as the Cooperative still shows a net deficit on its operations to date, as material shortages result in an excessive payroll for a minimum construction and operational requirements, the manager be in- structed to lay off or discharge immediately all employees not immediately necessary to the operation of its office or operational needs. Helmers added that as soon after the first of the year as the situation warranted the men would be recalled. Saline, who had been in Phoenix that day for a physical examination by the Industrial Commission, was not present, and did not learn of the action taken until later that evening. When the men came downstairs the other employees inquired what had hap- pened. Learning of the layoffs, a , group consisting of Woodrow Whitecotton, Gordon Peck, and G. L. Morris conferred with Helmers. The record does not disclose what occurred during this conference, but the three named employees quit their employment, presumably in protest at the layoffs of their fellow- 7 00 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees. There is no allegation or contention, however, that Whitecotton, Peck, and Morris were victims of any discrimination by the Respondent. That night Peck telephoned Saline, told him'of the layoffs and that he, Peck, and others had quit. Saline asked whether he, Saline, had been among those laid off. Peck said he believed that Saline's name had been on the list. Saline, however, was not laid off when he reported for work next day and no explana- tion was offered at the hearing for the change of decision. Presumably the vol- untary resignation of the three employees made his layoff unnecessary.' Next day, J. E. Maner, a groundman, called at the office for his pay check- While he was waiting, Manager Helmers asked him if he wanted to go back to work. He agreed-that he did and was offered reinstatement. Because he was feeling ill, however, he decided to visit the doctor but returned the following day, December 22, 1950, and went to work. With regard to Elmo Smith, it was stipulated that he, too, was offered rein- statement the day after he was laid off, but that he refused the offer. Carlton Spalding, the remaining employee laid off on December 20, 1950, was offered reinstatement by Manager Helmers by telephone about January 31 or February 1, 1951. Helmers told him that the situation had improved, and that he could have his job if he wanted it and were still interested. He declined the offer, stating he had no intention of returning to work for the Respondent, having accepted, as he testified, a better job on January 15, 1951. R. D. Cooper had been employed by the Respondent as a groundman from July 22, 1946, to June 1, 1948, when he was transferred to the job of warehouse- man, which he held until he was laid off with the others on December 20, 1950. Offered reinstatement by the Respondent on January 29, 1951, he returned as a groundman. In his previous job as warehouseman, he received incoming ma- terials and supplies, checked out supplies, tools, and equipment to the men, and cleaned the yards. These duties, according to Cooper, consumed on the average 2 or 3 hours a day, and because he felt he did not have enough to do, he had asked President Batty more than a year before for a transfer. Cooper had also asked Line Superintendent Peck to be transferred back on the trucks, but was told that the Respondent had no one to replace him in the warehouse. Cooper's testimony generally lends support to the Respondent's position, dis- cussed presently, that he was laid off for lack of sufficient work. The fact that he was offered and accepted reinstatement, late in January 1951 when work became available, as a groundman, the job for which he had expressed a preference, would appear to negate the likelihood that he had originally been laid off for discriminatory reasons. The General Counsel's case with respect to the alleged discriminatory layoffs rests to a very considerable extent on Spalding's testimony. During the period involved, as well as at the time of the hearing, Spalding was financial secretary and treasurer of the Union. He was first employed by the Respondent in August 1946 and continued in its employ until March 31, 1949. Prior to his first period of employment with the Respondent he had been employed as a meter reader, meter technician, and clerical employee by Arizona General Utilities, from which the Respondent acquired its plant facilities. After his original period of employment, and some interim employment with Phelps Dodge Corporation at Morenci, he was rehired by Manager Helmers in February 1950 as a coordinator, with the duties of acquiring right-of-way easements, and soliciting new mem- bers for the cooperative. About May 15, 1950, he was transferred at his request to the position of work order, stock record, and payroll clerk. From an initial 9 Saline was classified on the Respondent 's records as a groundman ; Whitecotton, as a groundman ; Peck, as a groundman-truck driver ; and Morris, as a lineman. GRAHAM COUNTY ELECTRIC COOPERATIVE, INC. 701 hourly rate of $1 as coordinator, he was increased late in April or early May to $1.25. By September 1, 1950, he was receiving an hourly rate of $1.371/2. Early in December 1950, in a discussion of contemplated projects and the out- look for work , Line Superintendent and Assistant Manager Delbert Peck (not to be confused with Gordon Peck ) told Spalding, according to the latter's un- disputed testimony , that it appeared that the men were "going to have to start working six days a week and maybe Sundays, too." Spalding, who was then engaged in "staking sheets" ( referred to in the record as "stacking sheets") to be described presently, agreed. Spalding admitted, however, in cross-examination , that during this period he had a conversation- with the office secretary in which he told her that he had been working too fast during November , and that he intended to slow down so as not to ri:n out of work in December . By way of explanation , he testified that when he was rehired in February 1950 , Helmers had promised him that his starting rate would be $1.25 an hour , and that he would try to get him $1.371 cents in about 3 months and the top rate of $1.50 by the first of the year, possibly more, if he acquired additional duties later on. In September , however, he pas still receiving $1.37%. In an effort to demonstrate his initiative , and in order to supplement his earnings, Spalding undertook to recondition a meter test panel , which the Re- spondent had had for several years but which had never been in working order. He offered to test meters for the Respondent in his spare time and on Saturdays for additional compensation at a lower rate than the Respondent had been pay- ing. Spalding had worked out a meter repair order costing several hundred dollars and submitted it to Helmers, suggesting that he be permitted to do the meter testing, after having demonstrated that he could test 17 to 20 meters on a Saturday. He explained to Helmers that by speeding up his regular work he could save a day a week , which he could devote to testing meters. Helmersl asked him how much additional compensation he would expect, and Spalding told him that he would want 10 cents an hour above the $1.50 which Helmers had promised him the first of the year , pointing out that by this arrangement the cooperative would be getting its meters tested inexpensively , and he would be enabled to earn the additional compensation he needed. Helmers countered with an offer of $1.50 an hour, beginning the first of the year , provided Spalding began meter testing at once. Spalding refused . Helmers then offered to let him take over the meter department and warehouse job at an increase in pay, and to hire another man whom he had been considering to assume Spalding's job. When be learned that this would result in replacing Cooper , who then held the warehouse job, Spalding refused . He reminded Helmers of the latter's promise to raise his wage rate to $1.50 as of the first of the year. Helmers told him that he no longer regarded that job worth $1.50, and that he could replace him for less than the $1 .371/2 that he was then receiving. Spalding denied this, and the matter appears to have been dropped. Spalding continued with his job at the same rate of pay , and several days later began to spend some of his time testing meters in the expectation that he would at least receive the raise to $1.50 by the first of the year. Although there was some intimation at the hearing that the Respondent had been displeased with Spalding 's unwillingness to test meters as part of his duties, the Respondent does not contend that that played any part in its decision to lay him off on December 20, but relies solely on the ground that his layoff , like that ,of the others , was dictated solely by reason of economic expediency . The facts related are relevant merely for such light as they may shed on whether, as the Respondent appears to contend, Spalding 's admission that he had intended to slow down in December in order not to run out of work , supports its position that 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there was not enough work for him to do at the time he was laid off, and that the Respondent was, therefore , motivated by economic considerations , and not by his union or concerted activities. On the basis of what has been stated, and on the entire record, especially Spalding's undisputed testimony , the undersigned credits Spalding's explana- tion, amounting in substance to the fact that by his statement to the office secre- tary early in December , he meant to convey , not that he was actually running out of work, but that, inasmuch as the Respondent was unwilling to pay him for testing meters , he did not intend to accelerate his regular work in order to devote the time saved to testing meters. The undersigned, therefore , finds that the evidence adduced in this connection does not in itself support the Respondent's position that there had been a decline in work which necessitated Spalding's layoff. Prior to the date of his layoff on December 20, Spalding had been engaged in preparing and compiling "staking sheets" for a project on the north side of the Gila River. According to Manager Helmers' undisputed testimony , work on this project had not yet begun at the time of the ' liearing, and the work had been authorized by the REA only a week earlier . The project involved replacing of power lines over a distance of a number of miles with wire of a heavier gauge to accommodate an increased load. Another project, involving the supply of power for irrigation pumps on the San Jose canals , was also contemplated , though it is not clear from the record whether work had begun or was merely in the plan- ning stage. Spalding's job in "staking sheets" consisted of collecting , compiling, and preparing records of materials , supplies , and equipment , including the quan- tity of poles, crossbars , insulators , wire, and other materials and supplies, and to compute information and data, such as distances between poles, necessary in determining costs of construction . This entailed communication with, and submission of the data to, the REA' engineer at Phoenix. Although Spalding testified that his work was to have been completed late in December or early in January, it appears elsewhere from his testimony that the "stake sheets" had been sent to the REA office at Phoenix by December 20. When Manager Helmers announced the layoffs , Spalding asked him whether he did not consider the "special work" in which he, Spalding , had been engaged "very essential ." Helmers replied that he regarded Spalding's job as the least essential in the office. His layoff took effect and several days later Spalding received his pay check , including accrued vacation pay. The Respondent contends that its decision to lay off the employees involved was dictated by a combination of economic factors wholly devoid of union con- siderations . These were its financial status on December 19, 1950, the date of the meeting of the board of directors , the shortages of critical materials stem- ming from the Korean war and excessive manning. With regard to the first of these factors , it contends that when Manager Hel- mers submitted the annual financial statement at the board of directors' meet- ing, some of the members of the board, who were unfamiliar with the operations of the cooperative , expressed considerable concern. Although the statement showed revenue from the sale of electricity for the year of $245,046 .94, and a net margin of receipts over expenses , of $45,659.25 , its operating deficit for previous years was $70,544.90, so that after applying the net receipts for the year of $45,659.25, there still remained a total net operating deficit of $23,885.65. The fact that its outstanding deficit had thus been reduced by more than two- thirds in a single year, was either overlooked , ignored, or regarded of no sig- nificance. So far as the record is concerned , no one at that meeting considered that noteworthy enough to mention in considering the necessity for the layoffs. Significantly, although the cooperative had been carrying an accumulated oDerat- GRAHAM COUNTY ELECTRIC COOPERATIVE, INC. 703 ing deficit of $70,544.90 for previous years, the Respondent had not resorted to layoffs of regular employees at any time in its 5 or 6 years of operation , although, according to President Batty, both Manager Helmers and his predecessor had regarded its employee complement excessive . In fact, Batty testified, he had received complaints in the past from board members as well as cooperative members that the cooperative had too many men in its employ for the operation involved. Illustrating, he testified , it had been reported to him that three men had been observed "digging one post hole" an entire day. Batty testified that in addition to discussing the cooperative 's financial state- ment at the board of directors ' meeting, mention was made that work was slack and critical materials in short supply ; that the cooperative had been affected by priorities, and that it had encountered difficulty on that account in letting the construction contract for increased facilities . He cited as an example the fact that the Respondent had planned to use copper wire, which it had expected- to purchase from the Phelps Dodge Corporation . Due to the Korean war, the manu- facturer had cancelled the order , and the Respondent was obliged to resort to the use of aluminum as a substitute , which it was able to obtain only after con- siderable difficulty and prior approval from Washington. Because of these and similiar circumstances , and the continuing scarcity which it anticipated, Batty testified, it had become necessary to "restake " some of its lines. In addition , according to Batty, December was usually a slack period when the farmers were bringing in their cotton and harvesting their other crops, delaying until the spring ordering electric service for their irrigation pumps in the hope that possible rainfall might render irrigation unnecessary. For all these reasons, the Respondent maintains, it finally determined to resort to the layoffs, although its directors were mindful that the layoffs would occur unfortunately during the Christmas season. It may also be noted that during October, November , and the first half of December 1950, Spalding testified , Line Superintendent Peck had mentioned to him on several occasions that it looked as though he would have to lay off some of the men "if they didn 't start hitting the ball." One of these occasions , however, according to Spalding, occurred soon after the Union had been organized, Peck observing that he did not know whether the fact that the employees had joined the Union "was going to help them or not," because it appeared that it would be necessary to lay off some men. Spalding testified , however, that it was not long before the layoff actually occurred that Peck had told him that in view of "all this proposed work coming up, new pumps on the north side of the river ," it appeared likely that the men would be working 6 days a week and Sundays. The General Counsel contends that the evidence fully supports his contention that the Respondent was motivated in effecting the layoffs , not by reasons of economic necessity , but by the organizational activities of its employees. Thus, he points to the coincidence of timing of the layoffs , less than 2 weeks after notice of the formation of the Union and its demand for recognition ; the decision reached by the board of directors at the very meeting at which the employees' letter designating the Union , and the demand for recognition had been presented for consideration ; the precipitate layoffs the next day, without prior notice to the employees , 5 days before Christmas , despite the Respondent's protestations of friendly, personal , and intimate relations between the officers and directors, on the one band, and the employees on the other , all inhabitants of a small , rural, and integrated community. Moreover , the General Counsel argues that while the Respondent 's financial statement shows an operating deficit, it reflects a general , steady, and progressive improvement in its financial condition , pointing out that the Respondent did not find it necessary to resort to layoffs as an economy measure in the past, when its 704 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD fiscal situation was far less favorable. Further, he contends that the alleged shortages of critical materials resulting from the United Nations,action in Korea are not supported by the comparative analysis of the Respondent's inventory for the years 1949, 1950, and the early months of 1951. As to this, however, the records prepared by the Respondent and introduced in evidence by the General Counsel do not contain sufficient pertinent data to afford a basis for an affirmative determination. Finally, he argues that any possible economies which might have been effected by the layoffs were more than offset by the increased 'overtime which the remaining employees, both production and clerical, worked thereafter. Spalding testified that December is usually an exceptionally busy month for the office employees, and that 1950 was no exception because of the necessity for preparing meter sheets and other records for the coming year. In the past, according to him, the Respondent usually hired an extra girl or had the regular office employees work overtime. Records of employee earnings for the month of December, however, show that during the entire month only two office em- ployees, the cashier-clerk and secretary-stenographer, worked a total of 6 hours overtime each. There was no showing'that any additional office help was hired during this period. For the succeeding month of January, the same records disclose that during the entire month the following amounts of overtime were worked by office employees : Cashier, 18 hours ; billing clerk, 33 hours ; stenog- rapher, 53 hours; and bookkeeper (male), 42 hours. With respect to the production employees, these records do, in fact, reveal a substantial and progressive increase in overtime worked by linemen, groundmen, and operating crew, as well as, to a lesser extent, the office employees, for the ensuing months of January, February, and March , 1951. This, however, may be explained equally by the fact that, as Batty testified, with the approach of spring and the undisputed absence of rainfall, farmers had begun to resort to irrigation by means of their electrically operated pumps with the consequent need for electrical service, as by the General Counsel's contention that the over- time had become necessary to overcome the lack of adequate help resulting from the layoffs. A comparison of records of overtime worked during the first 3 months of 1950 with that worked during the corresponding period in 1951, does not demonstrate such a disparity as to justify a finding that the overtime worked during the latter period was attributable solely to the layoffs on December 20, 1950. It will be recalled, moreover, that Maner, though laid off on that date, was offered and accepted reinstatement, without loss of pay, the very next day. Saline, who had originally been slated to be laid off, was continued in his employment. And Smith had been offered reinstatement the day after the layoff, but rejected it. This, of course, does not necessarily negate the possibility that the Respondent may have discriminated or intended to discriminate against these employees, and-may have discovered that it had overreached itself in reducing its employee complement. As to these three employees, however, the most that can be said is that, having sustained no actual loss of earnings, the general common law prin- ciple of damnum absque tinfuria would apply. The undersigned is not unmindful that the Act was designed, not to vindicate private rights, but to effectuate a public policy, and even though employees may have suffered no pecuniary loss, an employer who engages in unlawful discrimination should be required, at the very least, to cease and desist from engaging in such conduct in the future. But if, as the General Counsel contends, the Respondent had intended to discriminate against these employees as a means of reprisal for engaging in the statutory right to engage in self-organizational activity, or perhaps to make an example of them to the remaining employees, it is unreasonable to suppose that it would GRAHAM. COUNTY ELECTRIC COOPERATIVE, INC. 705 have offered them reinstatement on the very day after it had engaged in the •vindictive conduct. What has been said is applicable, though to a lesser extent, to Spalding and Cooper. Each was offered reinstatement somewhat more than a month after ,he was laid off. Manager Helmers, in announcing the layoffs, had told the employees that they would be recalled as soon after the first of the year as •circumstances permitted. The record sufficiently establishes that commencement of irrigation by means of electrically operated pumps in January necessitating increased service had made it possible to offer these employees reinstatement. Cooper accepted the offer and was reinstated. Spalding rejected the offer because he had succeeded in obtaining more desirable employment elsewhere. In considering the Respondent's motivation with regard to the layoffs, mention should perhaps be made of certain testimony given by Hicks, the Union's presi- dent. He testified` that as a result of a report made to him by International Representative E. S. Reynolds of a conversation between Reynolds and Manager Helmers early in January 1951 regarding the possibility of reinstatement of the laid-off employees, Hicks telephoned Helmers about a week later to find out whether a decision had been reached by the board of directors. He was told no decision had been reached. Several days later, Hicks spoke to Helmers at the plant, and again asked him about the matter. According to Hicks, after stating that no decision had been reached Helmers added that "he was afraid they could not re-employ the men under those conditions. He said they would be Wore or less playing right into the union's hands, as it would be giving them all those bets back again.." 10 Although Helmers did not deny the statement attributed to him, his testimony being confined merely to the nature and extent of the Respondent's operations for jurisdictional purposes, the undersigned regards it improbable that he actually made that statement. It is not unlikely that Hicks had a conversation with Helmers at or about the time stated by Hicks, and that the question of the rein- statement of the men was discussed. The undersigned is, however, impelled to conclude either that Hicks misunderstood him or was perhaps the unwitting victim of wishful thinking.' If, as Hicks seemed to imply, Helmers had indicated that the reason the men were refused reinstatement was to prevent their voting in a representation election, it seems altogether unlikely that Helmers would have offered the selfsame employees reinstatement within less than 2 weeks afterward, and before any election had yet been held. The undersigned has carefully considered Hicks' testimony in appraising the Respondent's motivation, and on the basis of the foregoing and his observation of Helmers on the witness stand, finds it utterly incredible that Helmers would have made such a damaging admission, even if it were true, and that he did not, in fact, make the statement attributed to him by Hicks. , The undersigned has, therefore, given no weight to this testimony in arriving at his conclusions regarding the Respondent's motivation. Returning then to the basic consideration, it is conceivable that in reaching its decision to lay off the employees involved the Respondent may have been less than prudent in appraising the economic situation with which it was then confronted. Perhaps the decision manifested a lack of business judgment, fore- sight, or the acumen which one comes to expect of those engaged in successful enterprises operated for profit. But with these considerations we may not be concerned. The only issue to be decided on this aspect of the case is whether 10 Although the official transcript of the proceedings gives the word as "bets," accord- ing to the undersigned's recollection the word actually used by the witness was "votes " The substitution of the word "votes" renders the remark more meaningful from the witness' standpoint. 706 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD in effecting the layoffs the Respondent was motivated in whole or material part by considerations of opposition to the self-organizational activities of its employees. Mere suspicions, and even a general attitude of opposition by an employer to such concerted activities, alone, cannot suffice for probative evidence. The burden of establishing this, as it does with regard to other allegations of the complaint, rests on the General Counsel. Upon the state of the entire record, the under- signed concludes and finds that the preponderance of the reliable, probative, and substantial evidence does not establish that the Respondent laid off the named employees on December 20, 1950, because of their union or concerted activities, to discourage membership in a labor organization. It will, therefore, be recommended that this allegation of the complaint be dismissed. D. The refusal to bargain 1. The appropriate unit The complaint alleges that each of the following units is appropriate for purposes of collective bargaining: (1) All production and maintenance employees, excluding office and clerical employees, guards, professional, and supervisory employees, as defined in the Act. (2) All office and clerical employees, excluding production and main- tenance employees, guards, professional, and supervisory employees, as defined in the Act. Each of the above-described units is a conventional unit customarily found by the Board to constitute an appropriate unit. No ground has been advanced and no evidence has been offered for departing from the Board's usual policy. The undersigned, therefore, finds that each of the above-described units separately constitutes a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act, and that such unit will assure to the employees the full benefit of their' right to self-organization and to bargain collectively, and will otherwise effectuate the policies of the Act. 2. Majority representation by the Union in each of said appropriate units There were in the employ of the Respondent, on December 7, 1950, 22 non- supervisory employees, consisting of 17 production and maintenance employees and 5 office and clerical employees. On December 6, 1950, 15 production and maintenance employees and 3 office and clerical employees had designated the ITnion as their collective bargaining representative by written authorization. The genuineness of the signatures .to the instrument of authorization has not been disputed. Thus, the Union, on that date, represented a substantial majority of the Respondent's employees in the production and maintenance unit and a clear majority in the office and clerical unit. That the Union did not segregate the production and maintenance employees from the office and clerical employees in the document of designation is immaterial in determining the Union's ma• jority status. No evidence has been offered and no contention made that any of the employees in either of these groups had revoked their designations up to the time of the hearing. The undersigned, therefore, finds, on the basis of the foregoing, and on the entire record, that, on December 6, 1950, and at all times material thereafter, the Union was, and has since been, the duly designated representative of a majority of the employees in each of the above-described appropriate units, and that, by virtue of Section 9 (a) of the Act, was on said date, and has since been GRAHAM COUNTY ELECTRIC COOPERATIVE, INC. 707 the exclusive representative of all the employees in each of said units for the purposes of collective bargaining with respect to rates of pay, wages, hours, and other conditions of employment. 3. The refusal to bargain On December 7, 1950, International Representative Shackelford submitted to Manager Helmers the document designating the Union as bargaining repre- sentative, with a covering letter requesting a meeting for the purpose of negoti- ations on behalf of the Respondent's employees in "a unit which we consider appropriate." Although an examination of the signatures to the letter of designa- tion should readily have revealed the inclusion of office and clerical employees with the production and maintenance employees, Helmers raised no question at the time of the appropriateness of the unit sought by the Union or of its majority in the unit. Instead, he told Shackelford that he would refer the matter to the board of directors, and notify him of their reply. The record dis- closes that Helmers did in fact notify President Batty of the designation of the Union and its demand for recognition at least several days to a week before the directors' meeting on December 19. Meanwhile, Helmers interrogated em- ployees regarding their signatures to the letter of designation. At the meeting of the board of directors on December 19, it was voted to refer the matter to the Respondent's attorney. During the meeting between the board of directors and the employees on January 9, 1951, Attorney Anderson did attempt to raise some question as to the appropriateness of the unit. It is evident, however, from what occurred during that meeting that the Respondent's principal con- cern was with the action of its employees in designating an "outside" union rather than with the appropriateness of any unit. Significantly, despite Shackel- ford's admitted request for an opportunity to meet with the directors to explore the relevant matters involved in any question concerning representation, no such opportunity was offered him. Nor was the Union notified at that time that the Respondent questioned the appropriateness of the unit. Instead, the Respondent called a meeting of the employees, for the evident purpose of dis- suading them from remaining members of the Union, and attempting to negotiate with them without their representative. This conduct in itself constituted an attempt to bypass the bargaining representative, and, as such, was tantamount to a refusal to bargain. In any event, not until January 17, 1951, or as soon afterward as the letter was received, when Attorney Ryley, who had been consulted after the January 9 meeting, wrote the union representative that the Respondent "does not con- sider the unit proposed by your Local No. 1676 as appropriate and decline to recognize request for recognition," was the Union put on notice that the question of the appropriateness of the unit was in issue. In reply to this letter, Shackelford wrote Ryley that the matter of recognition was no longer of immediate concern in view of the Respondent's conduct in discharging a number of employees following the demand for recognition. The Union, Shackelford wrote, had therefore filed unfair labor practice charges, which would necessarily delay the matter of recognition until the disposition of those charges. 4 On February 7, 1951, the Union filed a petition for representation in a unit described therein as "all production and maintenance employees and office and clerical employees,". excluding watchmen, guards, professional employees, and supervisors, as defined in the Act. On February 16, 1951, this petition was withdrawn because of the pendency of the unfair labor practice charges, and 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD approval for the withdrawal- was granted by the Regional Director on February 19, 1951. On about March 1, 1951, the Respondent, without prior notification to, or con- sultation with the Union , granted all its employees a 10 percent wage increase "across-the-board." By way of explanation , President Batty testified that the employees had been clamoring for a wage increase for, several months, and, although the Respondent was willing to grant a wage increase in some amount, the granting of any increase had been deferred due to the "wage freeze" im- posed by the Economic Stabilization Board. At an annual meeting of the co- operative held on February 9 or 10 , Batty continued , several of the plant crew, including Hicks, Cooper, and Maner, and Supervisor Peck and Windsor were present. In connection with discussion of a wage increase , mention was made of the "wage freeze," and it was suggested that Attorney Anderson go to Phoenix to investigate the effect of the "wage freeze." According to Batty, he suggested that Hicks join him but as he appeared to have left the meeting by then, Supervisor Peck was selected , with the consent of the employees present, to accompany Anderson. Furthermore , Batty testified , after having seen a communication from the Board notifying of the Union 's withdrawal of the representation petition, he concluded that the unfair labor practice charges had similarly been withdrawn, and therefore concluded that there was no further obstacle to the granting of the wage increase. The record clearly establishes that on or about March 1, 1951 , and since December 6, 1950, the Union had represented a majority of the Respondent's em- ployees in any appropriate unit, whether of production and maintenance em- ployees, office and clerical employees, or in a combined unit of both. While the Board may not ordinarily include production and maintenance employees with office and clerical employees in a single unit, in the face of objection by the parties, there is nothing to prevent such parties from doing so'by mutual agreement. Parenthetically, it may be observed that the Respondent made no distinction in treatment between the production and maintenance employees and its office and clerical employees in the matter of the granting of the wage increase on or about March 1. In any event , since it is clear that the Union did, in fact, represent a majority in any unit which could have been found to be appropriate, the Respondent was under a duty to bargain with it regarding the wage increase. That the Respondent may have been mistaken with regard to the effect of the withdrawal of the representation petition is, of course , no justi- fication for disregarding the bargaining representative . Nor that, but for the imposition of the "wage freeze," it might have granted the employees an increase sooner. For it must be borne in mind that the Respondent had been served with notice of the Union 's claim to represent a majority of the employees, a claim which was actually substantiated at the time, as early as December 6, 1950. Admittedly, the Respondent granted the wage increase without notice to, or consultation with, the Union . The fact that the increase granted was the maximum permissible under the Economic Stabilization Act, and that, presum- ably, the Union could not have obtained a higher increase , did not, of course, relieve the Respondent from the obligation to notify and consult with the Union. The Respondent's conduct in granting the wage increase unilaterally gives rise to the inference; in view of all the circumstances, that the Respondent did so for the purpose of depriving the Union of any possible prestige it might derive from procuring a wage increase for the employees. Further,, it is a reasonable inference , on the basis of the Respondent 's course of conduct and the statements made by its officers and directors during the meetings with the em• ployees, that in granting the wage increase , the Respondent was motivated in GRAHAM COUNTY ELECTRIC COOPERATIVE,.INC. 709` substantial part by the expectation that the employees would renounce their bargaining agent. The granting of a wage increase under such circumstances constitutes an unlawful inducement by the employer for the unseating of the- bargaining agent and the surrender by the employees of their fundamental, rights under the Act. Moreover, once such a representative has been chosen,. and until the designation has been effectively and lawfully revoked, the em- ployer must refrain from negotiating with the individual employees in the unit and must confine his dealings to their representative, even to the extent of resist- ing the overtures of a majority of the employees in the unit that he deal with them instead of their collective bargaining representative.11 It has been noted that the first intimation to the Union that the Respondent was questioning the appropriateness of the unit was on January 17, 1951, when, through its attorney, it asserted its refusal to bargain allegedly on that ground. This summary refusal was accompanied by no statement of the ground for the contention that the unit was inappropriate, and offered no opportunity or invi- tation to explore the position of the parties with regard to the unit issue. In- stead, the Respondent's directors met with the employees, albeit at the latter's invitation, on January 23 and in effect, repeated the statements made at the earlier meeting on January 9. The record adequately establishes that the Respondent was not so much concerned with the question of the appropriate unit as with a determination to have the question of representation resolved by an election. This is borne out, not only by the exchange of correspondence be- tween Attorney Ryley and International Representative Shackelford, but also by President Batty's testimony that when the representation petition was with- drawn he considered that the Union had abandoned its claim to represent the employees. It is well settled that an election is not the only method of determining ma- jority representation, and that an employer may not require certification as a condition precedent to bargaining, where the employer can entertain no real doubt as to the union's majority, or where reasonable proof is available and the em- ployer makes no effort to ascertain whether the union does in fact command a majority.' Here, apart from failing to question the Union's majority, the Re- spondent was actually furnished with convincing proof of such majority at the time of its original demand. It is, therefore, apparent that the Respondent's refusal to recognize the Union stemmed not from any sincere doubt or disagree- ment as to the appropriateness of the unit, but from its determined opposition to the self-organizational activities of its employees. Any doubt on this score must be regarded as having dissipated when, on March 29, 1951, Shackel- ford wrote Helmers clarifying the Union's position so as to assert that it was seeking to represent the employees in two separate units which were, as has been found, clearly appropriate, and that the Union intended to file a new petition at an appropriate time, presumably after the disposition of the unfair labor practice charges filed January 10, 1951. The only reply to this letter was a communication from Attorney Ryley to Shackelford, dated April 11, 1951, after the issuance of this complaint, enclosing a copy of the Respondent's answer, and replying to Shackelford's letter of March 29, stating, "it seems to me your original theory is the proper one to pursue and that is that the representation matter should await disposition of your unfair labor practice charges, where- upon you will then file a petition for a representation proceedings. (sic) " Once n Medo Photo Supply Corp . v. N L. R. B., 321 U. S. 67,8. 12 See, e. g., N. L. R. B. v. Remington Rand, Inc., 94 F. 2d 862, 868 (C. A. 2) ; N. L. R B. r. Federbush Co, 121 F. 2d 954 (C. A. 2 ) ; N. L. R. B. v. Dahlstrom Metallic Door Co, 112 F. 2d 756 (C. A. 2). 974176-52-vol. 9 6-4 6 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD again, evidence of the Respondent's insistence on resolving the question of rep- resentation by an election. Upon the basis of the foregoing and upon the entire record, the undersigned concludes and finds that the Respondent was not acting in good faith in ques- tioning the appropriateness of the unit on January 17, 1951, or at any-time there- after, but was motivated solely by a purpose to frustrate the employees in the exercise of the rights guaranteed under the Act. Although more than it month elapsed between the date of the Union's demand and the Respondent's earliest categorical refusal, and although the record discloses that the Respondent en- gaged in unfair labor practices in the intervening period, and evidenced a com- plete lack of intention to recognize and bargain with the Union, the undersigned considers it unnecessary to find a refusal to bargain earlier than January 17, 1951, the date of the Respondent's first explicit refusal to bargain. The undersigned finds, therefore, that the Respondent refused to bargain with the Union on January 17, 1951, and atoll times material thereafter, including on or about March 1 and March 29, 1951, and that, by granting its employees a unilateral wage increase on or about March 1, 1951, after the Union had been duly designated by a majority of its employees in each of the appropriate units, without prior consulation with or'notice to said Union, the Respondent has, on and after January 17, 1951, failed and refused and has continued to fail and re- fuse to bargain with the Union as the exclusive representative of the employees in each of said appropriate units in respect to rates of pay, wages, -hours, and other conditions of employment, in violation of Section 8 (a) (5) of the Act, and has thereby interfered with, restrained, and coerced its employees in the ex- ercise of the rights guaranteed in Section 7, in violation of 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 described 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 ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has not discriminated in regard to the hire and tenure of employment of R. D. Cooper, J. E. Maner, Elmo Smith, and Carlton Spalding. It will therefore be recommended that that allegation of the complaint be dis- missed. It has been found that the Respondent has refused to bargain collectively with the Union as the exclusive representative of the employees in each of the appropriate units. It will, accordingly, be recommended that the Respondeht, upon request, bargain collectively with said Union. The Respondent's course of conduct, as detailed above, manifests a purpose to defeat self-organization and the general purposes which the Act was designed to protect. Because of this unlawful conduct and its underlying purpose, the undersigned is convinced that the unfair labor practices found are persuasively related to other unfair labor practices proscribed by the Act, and that danger of commission of such acts in the future is to be anticipated from the Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless this order is made coextensive with the threat. It will, therefore, be recom- mended that the Respondent cease and desist from in any manner interfering COLONIAL SHIRT CORPORATION 711 with, restraining, and coercing its employees in the excercise of the rights guaranteed under the Act. Upon the basis of the foregoing findings of fact, and upon the entire record, the undersigned makes the following : CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, Local Union 1676, affiliated with the American Federation of Labor, is a labor organization within the mean- ing of Section 2 (5) of the Act. 2. All production and maintenance employees, excluding office and clerical employees, guards, professional and supervisory employees, as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. All office and clerical employees, excluding production and maintenance employees, guards, professional and supervisory employees, as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. International Brotherhood of Electrical Workers, Local Union 1676, affili- ated with the American Federation of Labor, was, on December 6, 1950, and has since been, at all times material thereafter, the exclusive representative of all the employees in each of the aforesaid units for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on or about January 17, 1951, and at all times thereafter, in- cluding on or about March 1, 1951, and on or about March 29, 1951, to bargain collectively with International Brotherhood of Electrical Workers, Local Union 1676, affiliated with the American Federation of Labor, as the exclusive repre- sentative of the employees in each of the aforesaid units, and by unilaterally granting a wage increase to said employees on or about March 1, 1951, without prior consultation with the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By interfering with, restraining, 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. 7. The allegation that the Respondent discriminated in regard to the hire and tenure and terms and conditions of employment of R. D. Cooper, J. E. Maner, Elmo Smith, and Carlton Spalding, to discourage membership in a labor organ- ization, in violation of Section 8 (a) (3), has not been sustained by the pre- ponderance of the reliable, probative, and substantial evidence. 8. The aforesaid unfair labor practices are unfair labor practices affecting comn- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] COLONIAL SHIRT CORPORATION and BURLEY HUGHES. Case No. 10- CA-998. October 10, 1951 Decision and Order On May 15, 1951, Trial Examiner Bertram G. Eadie issued his Intermediate Report in the above-entitled proceeding, finding that 96 NLRB No. 104.