West Texas Utilities Co.

WEST TEXAS UTILITIES COMPANY 407 helps move production machinery. He sometimes helps the electrician.8 Contrary to the Employer's contention, there is nothing in the record which indicates that the interests or conditions of employment of these maintenance employees are different from those of other employees in the unit. Accordingly, we shall include them in the unit? We find that all production, maintenance, and warehouse employees at the Employer's three plants in St. Louis, Missouri, including the leadmen working on the second floor of the Eighth Street plant, and the third floor of the Pine Street plant, electricians, and mechanics, but excluding experimental employees working at the Spruce Street and Eighth Street plants, office clerical," confidential, and professional em- ployees, watchmen, guards, and supervisors," 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.] 8The record does not show in what way the electrician directs the work of the mechanic. There is no showing in the record that the electrician exercises any supervisory authority over the mechanic or any other employees. 9 Whiting Corporation, 107 NLRB 493; Sherold Crystals, Inc., 104 NLRB 1072; Peterzell & Gelles, Inc., 94 NLRB 346; Taunton Pearl Works, 89 NLRB 1382; Century-American Corpor- ation, Woodstock Typewriter Division. 79 NLRB 43. lThe parties stipulated that two inventory clerks should be excluded from the unit as office clerical employees. "The parties agree that the following employees are supervisors within the meaning of the Act, and should be excluded from the unit: All foremen, leadmen on the first floor of the Eighth Street plant, and floorladies on the second floor of the Pine Street plant, and on the second and third floors of the Spruce Street plant. WEST TEXAS UTILITIES COMPANY and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UN- ION NO. 920, AFL WEST TEXAS UTILITIES COMPANY and RAYMOND B. SADLER and INTERNATIONAL BROTHERHOOD OF ELEC- TRICAL WORKERS, LOCAL UNION NO. 1044, AFL WEST TEXAS UTILITIES COMPANY and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UN- ION NO. 898, AFL. Cases Nos. 16-CA-411, 16-CA-466, and 16-CA-545. April 23, 1954 DECISION AND ORDER On September 8, 1953, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above consolidated pro- 108 NLRB No. 80. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Re- spondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed with respect to those allegations. The Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. On February 24, 1954, the Respondent filed a request for oral argument. This request is hereby denied because it was untimely filed and because, in our opinion, the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. The Board 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 Intermediate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner insofar as they are consistent herewith. 1. The Trial Examiner found that the Respondent interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act, by engaging in surveillance; by disrupting a scheduled Union meeting; and by statements made by one of its supervisors. We do not agree. In support of his finding that Dawkins, the Respondent's manager at its Rising Star, Texas, operation, engaged in sur- veillance of a Union meeting which was held on July 26, 1951, in a hotel at nearby Cisco, Texas, the Trial Examiner relied on Dawkins' presence in the hotel lobby at the time of the scheduled meeting . Unlike the Trial Examiner, we do not find implausible Dawkins' explanation that he was thereto keep a business engagement. Contrary to the Trial Examiner's inference that on the following day Dawkins reported the meeting to officials of the Respondent at its headquarters in Abilene, Texas, the record shows that Dawkins was being considered for a transfer and promotion, which he thereafter obtained, and that the reason for his trip to Abilene was to discuss this matter. Although, as pointed out by the Trial Examiner, no employee from Rising Star was at the meeting which was attended by about three-quarters of the employees within the district, it appears that only two employees from iWe have considered, and find no merit, in the Respondent's motion to strike the Inter- mediate Report on the ground that the Trial Examiner was biased and prejudiced. On April 19, 1954, we received from Arthur Crisman a request to withdraw the complaint with respect to his discharge because of a settlement agreement, in which the General Counsel was not a party. As we hereinafter dismiss that portion of the complaint on the merits, we find it unnecessary to determine what effect, if any, should be given to the settlement agreement. See N. L. R. B. v. Walt Disney Products, 146 F. 2d 44, 48 (C. A 9), cert. denied 324 U S 877. WEST TEXAS UTILITIES COMPANY 409 Rising Star were invited and that one of them had previously indicated he would not attend. Having considered all of the circumstances surrounding the Cisco Union meeting, we are unable to find that the preponderance of the evidence establishes that Dawkins engaged in surveillance. The Trial Examiner found that the Respondent interfered with the holding of a Union meeting which was scheduled for August 3, 1951, at Ballinger , Texas, by sending its employees, after regular working hours , on an unnecessary line patrol job. As detailed in the Intermediate Report, during the late afternoon of August 3, Foreman Chisolm was instructed by the assistant manager of the Ballinger , Texas, operation, to take care of a power break on the Miles-Bronte line, which is within the Ballinger area. Chisolm split up his crew into two groups to patrol the line between Miles and Bronte. The record shows that a line break was located and that Chisolm's group made the repair ; and that the other group was so notified and the two groups met at a midway point between 8 and 9 p. m. The employees then went to a nearby town for dinner and returned to Ballinger about 10 : 30 p. m. The Union meeting was not held that evening, as scheduled , but was held the following day, a Saturday afternoon. We do not agree with the Trial Examiner that the Respondent had advance knowledge of the scheduled meeting. But even if it is assumed that the Respondent had such knowledge , we are not convinced that there is a preponderance of evidence to show that it had an ulterior motive in dispatching the entire crew to locate and repair the admitted power failure on the night of August 3.2 The Trial Examiner also found that certain statements made by Morley, district manager of the Respondent's Quanah, Texas, operations , to Spoon, an employee who was a member of the Union's negotiating committee, were violative of the Act. Morley told Spoon that he knew of a Union meeting which was held at the latter's house, sometime in the middle of July 1951; that it was "all right " with Morley if Spoon wanted to remain a lineman all his life ; that Spoon was working against the Company; and that Spoon' s wife might no longer use a Company truck for her personal use. Although Morley admitted some of these statements , the record shows that Morley and Spoon, both of whom have been employed by the Respondent for over 25 years, live across the street from each other and engage in the neighborly practice of exchanging tools and books. The record further shows that Morley knew of the Union meeting, as Null, a Union representative, had stopped by Morley's house for a chat before going to the meeting ; and that the three of them, Morley, Spoon, and Null, "kid one another all 2Contrary to the Trial Examiner, the fact that the lights were burning in Bronte did not eliminate the necessity for checking the lines between Bronte and the pump station, for the record shows that Bronte was also being serviced with other lines from another direction. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the time." In view of the friendly relationship that exists among this group, we do not believe that the isolated con- versation between Morley and Spoon warrants the finding of a violation of the Act.3 2. We do not agree with the Trial Examiner's findings that the Respondent violated Section 8 (a) (3) of the Act by discharging 5 employees from its Abilene, Texas, operations and by refusing to rehire 1 employee (Whitney) at Ballinger, Texas. (a) The Abilene discharges: On August 2, 1951, the Re- spondent eliminated of its Abilene line crews which resulted in the discharge of complainants Crisman, Black, Leggett, Thomas, and Wright.4 In concluding that the discharge of these 5 employees was discriminatorily motivated, the Trial Examiner relied upon, inter alia, the following factors: The selection of individuals known to be Union members; the "demonstrable falsity" of the reasons assigned by the Re- spondent for the dismissals ; and the timing and precipitate manner of the discharge action. Unlike the Trial Examiner, we believe that no adverse inference is warranted by the Respondent ' s selection of the particular individuals that were laid off. While all were Union members, the record indicates that virtually all of the Abilene employees were members of the Union and, according to dischargee Leggett, anyone selected for layoff was bound to have been a Union member. In any event, we find no substantial evidence that the Respondent had knowledge of the Union membership of any complainant, other than Crisman. The Trial Examiner attributes such knowledge to the Respondent largely on an inference that the Respondent engaged in surveillance of a Union meeting held at Abilene on July 22, 1951, which was attended by the complainants. Such inference, however, is wholly untenable in view of the General Counsel's admission that there was no evidence of surveillance at that meeting, as alleged in the complaint, and our reversal of the Trial Examiner's finding that the Re- spondent engaged in surveillance at the July 26 meeting, discussed above. That the selection of the dischargees was based on neither seniority nor ability, as found by the Trial Examiner, is not under the circumstances of this case significant. For admittedly the Respondent had no seniority policy and gave a reasonable explanation for its selection. Thus, the Hargrove crew, of which Crisman, Black, and 3See Beaver Machine & Tool Co., 97 NLRB 33; Dazey Corporation, 106 NLRB 524. 4The Respondent had intended to reduce its staff by a minimum of 8 employees, which is equivalent to 2 Abilene crews. Also discharged at that time was employee Kisner who was named a complainant, but as to whom the complaint was dismissed at the hearing upon the request of the General Counsel. Two additional employees considered in the group of 8 involved 1 employee who had quit a few days before the August 2 layoff date; and 1 employee (Redus) who was hospitalized at the time as a result of an accident and was not expected back for some time. WEST TEXAS UTILITIES COMPANY 411 Leggett were members, was eliminated because it had already lost 1 of its 2 linemen due to an injury and its foreman was no longer available because of his promotion .5 The Price crew, from which 2 employees were laid off, was also eliminated as it was comprised of beginners and temporary employees. Foreman Price was reduced to a lineman and placed with another crew. We are unable to agree with the Trial Examiner that the economic reasons advanced by the Respondent for discharging the Abilene employees was "demonstrably false." The Re- spondent ' s testimony shows that following discussions of management which commenced several weeks earlier, it was decided to eliminate 2 of the 4 crews because of the high cost of operations at Abilene ' and the shortage of materials due to the Korean conflict . The selection of the personnel to be laid off was left to District Engineer Hutchison and he informed each of the dischargees of the above economic considerations as the reason for the layoff . Since 1949 , the Hargrove crew had been engaged in conversion of the downtown Abilene power- lines to a grid system so as to improve the service , and by the time of the layoffs, progress on this job was ahead of schedule and there remained only about 10 to 15 percent of the work to be completed . ' The record reveals that practically no work on this project was performed by any other crew until March 1952, and then, only on an irregular basis depending on the avail- ability of materials . In fact, the work was so sporadic that the conversion job was still incomplete as of April 1953.' It is obvious that the layoffs reduced the Respondent ' s costs and so far as the record shows did not have the effect of impairing the Respondent ' s service. Although the fact that the layoffs occurred in the middle of a workday9 and coincided with the Union ' s renewed drive are suspicious circumstances when viewed against the Respondent's background of Union animus , we nevertheless are unable to find, on the record as a whole, that the Abilene discharges were violative of the Act. 5 We attach no controlling significance to the fact that prior to the discharge date , the Re- spondent was considering a routine replacement for the truck used by the Hargrove crew. 6 The Respondent submitted evidence which showed that its Abilene operation was running at a much higher cost than its San Angelo area, both of which serviced a comparable number of customers. In rejecting as not comparable the operational costs of these areas the Trial Examiner found, contrary to the record, that a conversion job, which was in progress at Abilene, had been already performed in San Angelo . Although the Respondent was unable to ascertain the precise amount, the record is clear that a substantial payroll savings was effected by eliminating two crews. 7 Hutchison testified that 85 to 90 percent of the job was completed . The Intermediate Report inadvertently uses the figures 65 to 90 percent . The Trial Examiner was correct in finding, contrary to the Respondent 's contention, that conversion work at 2 hotels in downtown Abilene was incomplete at the time of the layoffs. 8 The Respondent also had in its employ outside contract crews, but the record is clear that those crews were not used in the resumption of the conversion job, 9It is noted that while the layoff might not have been made on a payday, the Respondent granted severance pay to the dischargees which covered the end of the following pay period. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) The Whitney discharge : We agree with the Trial Exam- iner ' s finding that Whitney ' s discharge was not in violation of the Act, but disagree as, to the finding that the Respondent discriminatorily refused to reinstate him. As found by the Trial Examiner , Whitney was discharged in September 1951 from the Respondent ' s Ballinger , Texas, operations by District Manager Wallace for economic reasons. Because Whitney was lowest in seniority when he was laid off, the Trial Examiner theorized that the Respondent was re- quired to reinstate him as a replacement for any vacancy which was thereafter created . We do not agree . The Respondent did not apply any seniority principle in discharging Whitney, but selected its least valuable employee . Nor does the - record show that the Respondent had any rehiring policy with respect to laid - off employees . It further appears that after his dis- charge, Whitney moved to another State without leaving his forwarding address ; no new employee in Whitney ' s classification was hired for about 1 year ; and that in any event, because of his advanced age and a hernia disability , it is reasonable to believe that he would not have been rehired. Although Wallace admitted having knowledge of Whitney ' s Union membership, we are unable to find , under all of the circumstances , that the Respondent ' s refusal to rehire Whitney was violative of the Act. 3. We agree with the Trial Examiner's finding that the Re- spondent violated the Act by causing loss of employment to Alton S. Ray. The Respondent contracted with Southwest Electric Company for some work to be performed at the Respondent's San Angelo powerplant. Under the terms of their agreement, Southwest was required to furnish materials and labor , subject to the authority delegated to the Respondent to have Southwest "remove any employee from the work ." Ray, who is an electrician and business agent for Local 898 of the Union and from time to time worked at his trade for Southwest, was acceptable to Southwest for work on the Respondent ' s project. In early March 1952, the Respondent informed Peters , the vice- president of Southwest , that it objected to the employment of Ray by Southwest on the Respondent ' s project because Ray was a "union organizer " and had made "threats" against the Re- spondent . The Respondent also stated , in effect , that if South- west used Ray on the project, the Respondent would not allow Southwest to perform the work. On March 17, 1952, Ray reported to Southwest for work on the Respondent ' s project and Peters refused him employment because of the Respond- ent's above -mentioned objections. The Respondent contends that it was justified in prohibiting Lay from working on its San Angelo project because of certain alleged threatening statements made by Ray during bargaining negotiations in October 1951 . The Respondent argues that Ray at that time threatened to sabotage its WEST TEXAS UTILITIES COMPANY 413 properties . It is clear , however, as fully set forth in the Intermediate Report and found by the Trial Examiner , that Ray did not threaten physical sabotage --and the Respondent could not have so reasonably believed --but stated, in effect , that he would retaliate against the Respondent ' s alleged stalling bar- gaining tactics , by seeking "municipal ownership " of the Re- spondent ' s operations . We do not believe that this statement, made in the heat of an argument during bargaining negotiations, was of such character as to warrant the denial of Ray's em- ployment, as a matter of law . 10 In any event , we are not con- vinced that the Respondent ' s alleged interpretation of Ray's remarks was the real reason for its objection to his employment on the project , for, as noted by the Trial Examiner, the Re- spondent initially objected to Ray's employment on the project some 8 months before the March 1952 incident . Rather, we believe, from the entire record, that the Respondent demanded the nonemployment of Ray because he was an active official of the same union which had organized the Respondent's em- ployees and with which union the Respondent had labor disputes involving unfair labor practices before this Board and the courts. It is clear that the denial of employment to Ray constitutes discrimination which discouraged membership and activity in the Union, within the meaning of Section 8 (a) (3) of the Act, and there remains only the question of whether the Re- spondent , by forcing such discrimination , itself committed an unfair labor practice under the statute. As set forth in the Intermediate Report, the Respondent contends that under the Act an unfair labor practice finding against it cannot be predicated on Ray's loss of employment because of the absence of a direct employer-employee re- lationship between the Respondent and Ray. In the Austin case, u the Board considered and rejected such a contention in a factual context similar to the instant one. It was there held that an employer commits an unfair labor practice under the Act by causing the unlawful discharge of a person employed by a subcontracting employer, where the association between the two employers "had an intimate business character," as evidenced by the contractual right of the employer charged with the violation to have such person terminated . Like the Trial Examiner , we find the Austin case controlling herein. Moreover , we find that under the contractual relationship of the parties , the Respondent was an employer of Ray, within the meaning of Section 2 (2) of the Act, which provides, in part, that "the term 'employer' includes any person acting as an agent of an employer , directly or indirectly." The Re- spondent contends , and we agree , that the relationship of Southwest to the Respondent was essentially that of an inde- 10 The Bettcher Manufacturing Corporation , 76 NLRB 526. 11 Austin Company, 101 NLRB 1257. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pendent contractor. Normally, under such an arrangement, responsibility for the hire, pay, and discharge of employees on the job would be vested in Southwest. Notwithstanding, in the present case an important part of the responsibility was delegated to the Respondent in the contractual clause which authorized the Respondent, in its discretion, to control the tenure of Southwest's employees on the project. We conclude that in practical effect Southwest thereby designated the Re- spondent to act as its agent with respect to preventing or terminating the employment of any person who worked on the project. We accordingly find that the Respondent, in preventing Ray from being employed on the project, was acting as the agent of Southwest and is therefore responsible for the resultant unlawful discrimination. Finally, in our opinion, the relationship between Southwest and the Respondent could alternatively be viewed as that of dual employers insofar as the hire and tenure of employees on the project was concerned, with Southwest having the primary right to hire and discharge and the Respondent having the contractual right to veto Southwest's determination in these matters. Thus, the Respondent controls to a sub- stantial degree a most significant aspect of the employment relationship of persons on the project and we believe that it is an employer at least of persons, like Ray, over whom it effectively exercises such control. Having found that the Respondent violated the Act in causing Ray's discharge, we shall order the Respondent to cease and desist from discouraging membership in the Union by dis- criminating in regard to the hire and tenure of employment of Southwest's employees; to make whole Alton Ray for loss of pay he may have suffered by reason of the Respondent's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of the discrimination to the date the Re- spondent notifies Southwest of its withdrawal of objection to the employment of Ray, less his net earnings during said period. The back pay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. ORDER Upon the entire record in this case , and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Re- spondent, West Texas Utilities Company, Abilene, Texas, its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in International Brotherhood of Electrical Workers, AFL, Local Union No. 898, or any other labor organization, by discriminating in regard to the hire and WEST TEXAS UTILITIES COMPANY 415 tenure or any term or condition of employment in regard to employees of Southwest Electric Company of Amarillo, Texas, while such employees are working on the Respondent ' s property. (b) In any other manner interfering with, restraining, or coercing employees inthe exercise of their rights as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Make whole Alton S. Ray for any loss of pay he may have suffered by reason of the Respondent ' s discrimination against him, in the manner provided in the Decision. (b) Notify Southwest Electric Company of Amarillo, Texas, and Roy L. Peters, that it withdraws all objections to the employment of Alton S. Ray on any job that Company may have on the Respondent ' s property. (c) Post at its San Angelo , Texas, powerplant , copies of the notice attached hereto and marked "Appendix A." 12 Copies of said notice , to be furnished by the Regional Director for the Sixteenth Region, shall , after being duly signed by a representative of the Respondent , be posted immediately upon receipt thereof, and maintained by it for sixty ( 60) consecutive days thereafter , in conspicuous places, including all places where notices to employees of Southwest Electric Company are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered , defaced , or covered by any other material. (d) Notify the Regional Director for the Sixteenth Region, in writing, within ten (10 ) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the remaining allegations of the complaint be, and they hereby are, dismissed. Members Rodgers and Beeson took no part in the consider- ation of the above Decision and Order. 12 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 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 discourage membership in International Brotherhood of Electrical Workers, Local Union No. 898, 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or in any other labor organization, by discriminating in regard to the hire and tenure or any term or condition of employment in regard to employees of Southwest Electric Company of Amarillo, Texas, while such employees are working on property belonging to West Texas Utilities Company. WE WILL make whole Alton S. Ray for any loss of pay suffered as a result of the discrimination against him. WE WILL notify Southwest Texas Company of Amarillo, Texas, and Roy L. Peters that we have no objection to the employment of Alton S. Ray on our property. WEST TEXAS UTILITIES COMPANY, Employer Dated ................ By.................................................... (Representative ) (Title) 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 STATEMENT OF THE CASE This matter arises upon a complaint dated January 13, 1953,1 by the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board respectively,2 through the Regional Director for the Sixteenth Region (Fort Worth, Texas), against West Texas Utilities Company, herein called the Respondent, which alleged, in substance, that the Respondent had (1) discharged and thereafter failed and refused to reinstate six named em- ployees because of their membership in and activities on behalf of the Union (2) discriminated against R. B. Sadler by discharging him for the reason that he refused to assist the Respond- ent in its program and acts of discrimination and coercion in order to discourage membership in the Union; (3) caused Southwest Electric Company to discharge A. S. Ray because of the Union activity engaged in by said Ray with and on behalf of the employees of the Respondent; and (4) in various enumerated ways from on or about July 1, 1951, to date interfered with, restrained, and coerced its employees thereby violating Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. The Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Copies of the various charges and amendments thereof, complaint and notice of hearing thereon were duly served upon the Respondent and the Union. Pursuant to notice, a hearing was held from April 13 through April 24, 1953, in Abilene, Texas, before the undersigned Trial Examiner, The General Counsel, the Respondent, and the Union were represented by counsel. All parties participated in the hearing and were given full opportunity to be heard, to examine and to cross-examine witnesses, to introduce evidence bearing upon the issues, and to present oral argument and file briefs and proposed findings of iThe complaint was a consolidated complaint based upon original charges filed August 6, 1951; January 31, 1952; and August 11, 1952, and subsequently amended, by International Brotherhood of Electrical Workers, Local Unions Nos. 920, 1044, and 898, hereinafter called the Union, and by Raymond B Sadler. 2 The attorneys appearing for the General Counsel are also referred to herein as the General Counsel. WEST TEXAS UTILITIES COMPANY 417 fact or conclusions of law or both. Briefs were received from the General Counsel and the Respondent on June 9, 1953 Upon the entire record in the case, and from his observation of the witnesses , the under- signed makes the following: FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT The Respondent is and has been since October 1, 1927, a corporation duly organized under and existing by virtue of the laws of the State of Texas, having its principal office and place of business at Abilene, Texas , and is now and has been at all times herein mentioned continuously engaged at such place of business in the manufacture , sale, and distribution of electricity, electrical appliances , and related services . It is now and has been continuously engaged in the western portion of the State of Texas, in the operation of electrical generating plants located principally in the cities of Abilene , Quannah, San Angelo, and McCamey, and in the maintenance and use of electrical transmission lines throughout a large portion of west Texas, which lines extend to the border of Old Mexico it owns and operates other properties and facilities in connection with the rendition of public utility services throughout this area. It purchases some materials necessary for its business in States other than the State of Texas. The Board and the courts in a number of cases have held that these operations of the Re- spondent affect commerce within the meaning of the Act There is no showing in the present case that the operations of the Respondent have undergone any substantial change since those decisions The undersigned finds that the Respondent is engaged in commerce within the meaning of the Act. IL THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers , Locals Nos. 920, 1044, and 898, AFL, are each labor organizations admitting to membership employees of the Respondent III. THE UNFAIR LABOR PRACTICES A. The discharges of August 2, 1951 1. The facts On September 19, 1949, the Board issued its Decision and Order in Case No . 16-CA-26 in which it found that " on September 19 and on November 8, 1947, and thereafter , the Respond- ent refused to bargain collectively with the Union , in violation of Section 8 (a) (5) of the Act," and directed the Respondent to bargain collectively withthe'Union. On July 24, 1950, the Court of Appeals for the District of Columbia enforced the Board 's Order in said matter.3 That court stayed its mandate pending the Respondent 's application to the U. S. Supreme Court for certiorari . The Supreme Court denied certiorari on May 28, 1951, as a result of which the said circuit court of appeals on June 5, 1951, issued its decree dated July 24, 1950 . On July 2, 1951, said circuit court of appeals denied the Respondent's motion to recall the said decree and opinion, which denial was affirmed by the Supreme Court on July 10, 1951.4 This apparently successful conclusion to this litigation in favor of the Union created a revival of interest among the employees intheUnion which had necessarily become dormant during the long years of the litigation So employee Arthur Crisman, recording secretary of Local 920 and a member of the negotiations committee of the Union , called meetings of the Union in Abilene and Cisco, Texas , for July 22 and July 26 , 1951, respectively , in order to apprise the employees of the then existing situation . This news and these meetings did much to revive the interest of the employees in the Union . Many old members returned and many other employees joined the Union at these meetings. 3184 F 2d 233. 4Subsequently , the Court of Appeals for the District of Columbia on April 28 , 1953, found the Respondent and Price Campbell, its president, in-contempt of said court for failure to comply with said decree. The undersigned understands that the Respondent has either appealed, or intends to appeal, this decision of the court. 339676 0 - 55 - 28 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nothing untoward occurred at the Abilene meeting but when the employees gathered for the July 26 meeting at the Victor Hotel in Cisco, Kirby Dawkins, then local manager for the Re- spondent at Rising Star, Texas, was sitting in the lobby of the hotel in a position to be able to see everyone who entered said lobby. It is worthy of note that although approximately three-quarters of the employees of this district attended the meeting that evening no em- ployee from Rising Star appeared although they had been notified thereof. To one employee who spoke to Dawkins. Dawkins inquired whether this was "old home week." The next morning Dawkins was in Abilene talking to high officials of the Respondent.5 After this visit to the Abilene headquarters of the Respondent, Dawkins returned to Rising Star Dawkins admitted at the hearing having been in the Victor Hotel from approximately 7 p. m. to 8:30 or 9 p. m. but testified that he was there only to keep an appointment with an oilman named Summey from Midland, Texas, who failed to keep his appointment. It is worthy of note that Dawkins himself had made no appointment with Summey. He claimed that an appoint- ment had been made in his behalf by a third person wbo was not called as a witness at the hearing. Summey had died prior to the present hearing. This so-called "appointment" was at best highly indefinite. However, Dawkins knew that he was not returning to Rising Star that evening as hehad made arrangements before departing for someone to take his place overnight. The past history of this Respondent proves that it was quite customary for supervisors such as Dawkins to be present in thevicinity of Union meetings 6 Dawkins' demeanor upon the witness stand indicated to the undersigned that he was not a reliable witness His admitted activities, the implausibility of his attempted alibi, together with the Respondent's failure to even attempt to corroborate such story, convinced the undersigned that Dawkins was present at the Victor Hotel on the evening of July 26, 1951, for the purpose of keeping said meeting and those attending it under surveillance in order to coerce and intimidate the employees in violation of Section 8 (a) (1) of the Act. Respondent's supervisors customarily notified the employees under their supervision that they knew when and where Union meetings were being held and where and when Union or- ganizers were in town. In this hearing Supervisor Morley admittedly so notified employee Spoon. The Respondent admittedly recognized the revival of interest of its employees in the Union following the Supreme Court decision. Respondent's officials in Abilene, District Managers Wallace and Morley, all admitted this knowledge or, in the case of District Manager Wallace, admitted " strongly suspecting it." Through Dawkins' presence at the Victor Hotel, Respondent also knew that Crisman's inter- est in the Union had not been dissipated by the delay in the negotiations caused by the prolonged litigation on the refusal-to-bargain case finally concluded by the Supreme Court's refusal of certiorari. Crisman had long been prominently connected with the Union and in negotiations with the Respondent leading to the above litigation so that the Respondent had long recognized him as one of the top and most active leaders of the Union. As an employee, Crisman was known as one of the Respondent's very best linemen as well as the next to oldest in service in district AB comprising the territory in and around Abilene and Cisco Crisman was in the line crew foremanned by Horace Hargrove which for the previous year or so had been engaged almost exclusively in converting the distribution system in Abilene to the grid, or "Y," system in order to provide Abilene with better service and to renovate the then admittedly delapidated downtown system. As of August 2, 1951, there remained many months of work yet to be done in this conversion work. As of August 2, 1951, this work on converting to the grid system-had many months to go before completion.? 5 About the middle of August, Dawkins was promoted to the position of local manager at McCamey. 622 NLRB 522 at 543. See also 119 F. 2d 683 at 634, where, in addition, the Circuit Court of Appeals for the Fifth Circuit stated: "It is clear that the management was not only openly hostile to any form of affiliated union organization, but also that it freely exerted its efforts and influence to persuade, coerce, and intimidate the employees in the exercise of their rights under the Act, and when the discharge of Quinlan, the union leader, is viewed against the back- ground of the notorious antagonism to the Union, the conclusion reached by the Board that he was discharged because of union activity is more than plausible." 7 District Engineer Hutchison testified that 95 percent of the work on this conversion up to August 1, 1951, had been performed by the Hargrove crew. He also testified that as of that same date the contemplated conversion was only 65 to 90 percent completed in Abilene. WEST TEXAS UTLITIES COMPANY 419 On August 2, 1951, the Respondent's four line crews8 under their respective foremen, Hargrove, Hastings, Johnson, and Price, were working as usual in the afternoon when they received radio calls to report immediately at the office of John Hutchison, district engineer for district AB. Arthur Crisman, H. W. Black, A. R. Leggett, all of Hargrove's crew, B. D. Thomas of Hastings' crew, Sidney Wright and K. K. Kisner of Price's crew, were called individually into Hutchison's office and told by him that their services would not be required thereafter as the Respondent was cutting down expenses, materials were short, and because of the economic situation.9 Hutchison read this dismissal speech from a draft thereof which he had before him on his desk. All of those dismissed were groundmen with theexception of Crisman, a lineman, and Kisner, an apprentice lineman. These dismissals wiped out Foreman Hargrove's crew as the other lineman, Redus, had previously been seriously injured in a fall and was then hospitalized. The layoff of August 2 constitutes the only time in Respondent's history when a complete line crew was ever eliminated from the Respondent's employ as all other dismissals have been on an individual basis Thereafter Hutchison called in Foreman Hargrove, Dallas Strickland, and J. H. King. the latter 2 each supervised the work of "contract crews," and gave each of them a $ 25-per- month increase in salary. In addition he promoted Hargrove to a newly created position of "construction superintendent" with authority over all construction work of the Respondent. Negotiations, resulting from the Supreme Court's decision referred to above, recommenced on August 8, 1951, and continued thereafter for a period of some 14 weeks. On or about September 20, at the suggestion of Attorney Frank Cain, who was acting as a negotiator for and on behalf of the Respondent, Respondent proposed to reinstate Crisman at the conclusion of the negotiations. Cain testified that this proposal was made for the purpose of creating a more amicable atmosphere at the negotiations. This offer, conditioned upon the discharge of another employee and a transfer of a third to another department, was accepted by the Union so that at the conclusion of the negotiations on October 26, 1951, Crisman was reinstated in the service department at the same salary he had while working as a lineman. He has been working in that department ever since. All dismissed members of the Hargrove crew were members of the Union. In fact through- out the district the Hargrove crew was well known as a 100-percent-union crew. Leggett and Black had been members since 1946 with Black serving as doorman for the Union. Wright had been a Union member and vice chairman during the period 1946-48-after which he dropped out and remained out of the Union until rejoining at the July 22, 1951, meeting. At that time he interested other employees in joining at the same meeting. Thomas of the Hastings' crew joined the Union at the July 22 meeting also. The Respondent contended that, after full discussions lasting for a period of weeks, the Respondent's officials determined that 2 Company crews had to be eliminated in order to economize and because materials were in short supply. These officials "estimated" that the elimination of these 2 crews would save the Respondent either $45,000 or $50,000. This estimate was based upon a charge of $ 75 per day per crew during a 300-day year 10 2. Conclusions re discharges of August 2 All employees selected by Respondent for layoff on August 2, 1951, were Union men Re- spondent recognized Crisman as having been prominently in the forefront of Union activities since 1946 as the Union's secretary and member of its negotiations committee. It also knew his activities in arranging these meetings of July 22 and 26 whereby he was reviving interest in the Union both in and out of the meetings. Black, an oldtime officer of the Union, and Leggett were also old members whose affiliation had never been dropped. The Hargrove crew which was eliminated was well recognized throughout the Respondent's system as being a 100-per- 8 A line crew generally consisted of 2 linemen, 2 groundmen, a driver, and a foreman. 9For reasons undisclosed in the record,- the General Counsel moved to strike Kisner's name from the complaint. Said motion was granted without objection. 10 This figure is obviously incorrect as it fails to take into account the added supervisory expense created by the newly established position of "construction superintendent." Further- more it also fails to take into account the increased salaries given to Strickland and King. It is also to be noted that the $75-per-day fee used was the charge to customers and not the cost to the Company of a Company crew. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cent-union crew . Wright was also an oldtime Union member and officer whose interest had been revived on July 22 while Thomas became a Union member at that same meeting. Although none of these men, except Crisman, could testify that any official of the Respondent actually knew them to be Union men individually, they had all attended the July 22 meeting In view of Dawkins' activity on July 26 and of the Respondent 's propensity for having supervisors in the vicinity of Union meetings , it is a fair assumption that the Respondent knew those employees who attended both the July 22 and the July 26 meetings. The personnel selected by the Re- spondent for layoff was such as to disclose to the rank-and -file members of the Union the dangers of becoming active in the Union. Certainly with the Respondent's "background of notorious antagonism to the Union ,"ll it is a fair inference that the Respondent's antipathy to the Union 12 played a large part in the selection of the personnel to be laid off. If it were the Respondent's intent to coerce its employees by these discharges , the timing of the discharges could not have been more effectively picked , coming as it did just as interest in the Union was reviving and just prior to the renewal of the negotiations caused by the Supreme Court decision . It is a well-recognized fact that coercive tactics are most effective at the beginning of an organizational campaign or, as in this case , when interest in a union is reviving. John Hutchison, who assumed the responsibility for the selection of the employees laid off, used some criteria for the selection other than either ability or seniority in making these layoffs Crisman was not only about the best lineman in the district but also next to the top in seniority. Linemen with over 8years less seniority than Crisman were retained while Crisman was discharged . In addition to being among the very best of the groundmen , Black and Legget stood number 1 and 2 at the top of the seniority roster . In fact the Hargrove crew was recognized as being the best line crew in the Respondent 's employ. If seniority were the criteria used, Kisner was the only employee who would have been dismissed. If ability was the criteria , it is highly improbable that Hutchison would have failed, as he carefully did, to have consulted his foreman as to the ability of these various employees before making his selections nor would the men actually laid off have been selected. Respondent claims through its witnesses, Comptroller Gallagher, Chief Engineer C. L. Yount, District Manager Harold E. Austin, and District Engineer John Hutchison, that this reduction had been under discussion for a period of weeks because of the economic situation and because of the shortage of materials caused by the Korean situation. In either event it would seem that in an efficient operation the Respondent would have recognized the necessity for a layoff long in advance of having had to make it. In this instance it is obvious that the decision to reduce the working force was in fact a sudden one. Respondent 's witnesses were not only vague regarding their alleged prior consultation but were also self- contradictory The first notice of the impending layoff received by any member of the crews- -including their foremen--was received when the crews arrived at Hutchison ' s office on August 2 in response to his radio order. Workwas dropped just where it stood at the time the radio orders were re- ceived and no effort was made to fit the work in process to the layoff. The layoff was so sudden as to be made in the middle of a pay period thus creating more work for the payroll department. Furthermore , a new truck was being outfitted for the use of the Hargrove crew so that that crew was being consulted as to their desires as to the placement of tools therein right up to the time of their discharge which , of course , would not have been the case if it had been known any time in advance that the Hargrove crew was to be eliminated . All the facts lead to the conclusion that the layoff of August 2 was the result of a precipitate decision and not of a well-organized , long-anticipated decision.i3 Respondent ' s witnesses testified that these layoffs were necessitated as an economy measure and because of a shortage of materials caused by the Korean conflict As for the claim of material shortages , the facts show that prior to August 2 this alleged shortage of materials had 11 119 F. 2d 683, 685. i2 See decision in contempt case, 206 F 2d 442, as indication of continuance of this "back- ground." And note the presence of the identical officials in present case as were responsible for the finding in 22 NLRB 522 and 119 F. 2d 683. 13 The Respondent maintained, and introduced pictures to show, that the bodies of the trucks were similar. But it was undemed that when a new truck was being constructed to be used by a specific line crew that line crew was consulted as to the manner of disposition of its tools in that truck so as to be most efficient for that crew. These pictures fail to disclose the placement of tools in the bodies. So long as this consultation continued, it is clear that the Respondent intended to retain the Hargrove crew. WEST TEXAS UTILITIES COMPANY 421 not inconvenienced the Hargrove crew in its conversion work in the downtown section of Abilene where it had been working on the changeover for the better part of a year or more. Although the Respondent's witnesses attempted to give the impression that this conversion to the grid system in downtown Abilene ceased for a long period of time, following the dismissal of the Hargrove crew, the facts prove that Respondent recommenced work thereon prior to the time that Hargrove was discharged in March 1952 The Hargrove crew had not been hampered by these alleged shortages prior to August 2 nor was its replacement , the Johnson crew, thereafter The Respondent chose to rest its claim in this respect upon the opinions and estimates of its engineers These witnesses were not only vague and indefinite in their claims but were again self-contradictory If the shutdown had been due to material shortages, it is highly unlikely that the dismissals would have been as precipitate as they were in fact. Likewise if the shortages had been as acute as indicated , the work would not have been resumed as rapidly as it did. In this state of the record and in the absence of available tangible proof of such shortage of materials , the undersigned is unable to find that the dismissals of August 2 were caused by any material shortages The Respondent also contended that the shutdown was due in part to the fact that it was spending too much money on the renovation of its Abilene facilities especially when compared to the costs of similar operations in theSan Angelo district . The comparison of costs in these two districts was valueless for the reason that, first, the San Angelo district had previously been converted to the grid system, and second, the Abilene district had been allowed to fall mto a very bad state of disrepair so that that system had to be entirely renovated Thus con- ditions in the two communities were not comparable The Respondent pointed out that the conversion to the grid system did not have to be com- pleted for the reason that all the downtown customers in Abilene were receiving service, albeit from a delapidated and inferior system. Thus the grid system did not have to be in- stalled in order that service be provided - - it was already in. But the evidence shows that when the Respondent temporarily stoppedworkonthisconversionon August 2, a large and important phase of the work was still incomplete , namely, at least that around the two biggest hotels in the heart of the business district . Even more important is the fact that by March 1952, the Respondent had resumed work upon the completion of the grid system despite the socalled economy measures and the alleged shortages of materials . Thus it is clear that the reasons advanced by the Respondent for these layoffs were in large measure specious and of no real moment. It has frequently been held that the advancement of demonstrably false reasons for dis- charges creates an inference , after a prima facie case has been made out as it had been here, that the discharges were in fact made for reasons proscribed by the Act The undersigned believes that such inference is fair in this instance. The selection of personnel to be laid off on August 2 was supposedly made solely by Dis- trict Engineer Hutchison . As noted above , the facts demonstrate that this selection was made for reasons other than ability or seniority . It is fair then to consider Hutchison 's actions in the case of another dismissal, namely, that of Horace Hargrove in March 1952 Hutchison knew that Hargrove had been an active member of the Union prior to his promotion to foreman in 1946 and that Hargrove had resigned from the Union at the time he received his promotion. With the layoff of August 2, Hargrove was promoted at an increased salary to the newly created position of "construction superintendent ." Sometime in February or March 1952, Hutchison suddenly asked J H. King and Dallas Strickland, engineers under his supervision, to "check up" on Hargrove's standing and activity in the Union and report back to him 14 In addition to these reports Hutchison sought similar opinions from the map clerk, the storekeeper , and one of Hargrove's subordinate foremen before he made up his mind to dis- 14 Hutchison himself admitted making inquiries of these two engineers about Hargrove and asking them to report' back to him regarding Hargrove's "work and his attitude" but spe- cifically denied asking them about Hargrove's Union activities. Hutchison evaded all attempts to expand upon his conversation with the engineers by reiterating the above-quoted words to each such attempt. It is hardly conceivable that a man requested to make a report on another's "attitude" would not have had to request a further explanation in order to know what was wanted. It is also noteworthy that Respondent did not choose to call King as a witness. From the logic of the situation and from the demeanor of both men upon the stand, the undersigned credits the testimony of Strickland that Hutchison was more specific than he admitted and, in fact, requested a report on Hargrove's attitude toward the Union. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge Hargrove, a procedure definitely differing from the secrecy employed at the time of the August 2 discharge when Hutchison consulted no one. After receiving Strickland's report that Hargrove was not active in the Union and after having accused Strickland of attempting to "whitewash" Hargrove because of this report, Hutchison discharged Hargrove on March 28, 1952.15 Although economy was given as one of the main reasons for dismissals of August 2, Strickland testified that within a month or 6 weeks after the dismissals the Respondent brought a new contract crew into the Abilene district Since about 1944 the Respondent has employed what are known as "contract crews" to do certain construction work on new distribu- tion lines and some small amount of maintenance work on existing lines. These "contract crews" are crews of several independent contractors each having a separate contract with the Respondent specifying certain unit rates of payment for work actually performed. These contract crews are not used on any work involving public relations. The unit rates with each contractor are kept "top secret" so far as the Respondent is concerned so that Chief Engineer Young can "play poker" with any contractor bidding for a contract with the Re- spondent and thus keep the Respondent's cost to a minimum. In this "game of poker" Young's "ace in the hole" with the bidding contractors was, of course, his employment of Company crews for if the bids were too high, he would use Company crews on the work. *Respondent's officials testified that no new contract crew came into the district until September 1952. When Company records to support this testimony were requested at the hearing, the Re- spondent refused to supply certain records on the grounds that they could conceivably di- vulge some of these "top secret" unit rates of the contractors. The records the Respondent was willing to produce however, did show no new contract crew in district AB until September 1952 but these records did not disclose the number of men employed by the contractors nor the type of work being done under the contracts. Because of the incompleteness of the Re- spondent's records which it was willing to produce and because of the fact that the General Counsel was unable, or unwilling, to provide confirmation of Strickland's recollection, the undersigned is unwilling to find that any new contractors or new contract crew came into district AB to replace the Company crews which were dismissed on August 2 but he is equally unable to find that existing contract crews did not take up the slack left by the dismissals of August 2. In other words, the undersigned is making no finding regarding the testimony that a new contract crew came into the Abilene area. In addition the Respondent maintained that it saved money by retaining contract crews in place of the two Company crews dismissed on August 2. Due to the Respondent's unwillingness to disclose any records which might conceivably indicate the unit rates of any particular contract, there is no proof in this record that it was actually more economical for the Re- spondent to employ contract crews than Company crews Young's testimony indicated that, where public relations were involved, it was necessary for the Respondent to employ Company crews The conversion work in downtown Abilene obviously involved public relations and, in fact, that work was always done by Company crews. Thus it appears that the Respondent may have been using contract crews as its "ace in the hole" against its employees in the Company crews so far as the Union was concerned Under all the facts of this case, the undersigned is convinced and, therefore, finds that the Respondent dismissed Arthur Crisman, H. W. Black, A. R. Leggett, B D. Thomas, and Sidney Wright on August 2, 1951, because of their membership in, and activities on behalf of, the Union. The selection of the individuals dismissed, the timing of the dismissals, the precipitate manner of the dismissals, together with the secrecy surrounding the same when considered in connection with the demonstrable falsity of the reasons which the Respondent alleged for such dismissals, lead the undersigned to the conclusion that the dismissals of August 2, 1951, were caused by the continuance of Respondent's "background of notorious antagonism to the Union" coinciding with the renewal of interest in the Union and in order to discourage membership in the Union in violation of Section 8 (a) (3) and (1) of the Act. sRespondent attempted to impeach Strickland by showing that the Respondent had discharged Strickland because of inaccuracies in Strickland's approval of certain contract crew accounts with the Respondent which were purportedly discovered by J. H. King. As noted above King was not called upon to testify. As King was the man who allegedly found the discrepancies and as King was the individual present when Strickland "resigned" in District Manager Austin's office, the Respondent's hearsay evidence against Strickland was most unsatis- factory. Strickland's demeanor upon the stand indicated him to be a man telling a truthful story. WEST TEXAS UTILITIES COMPANY B. The discharge of George Whitney 1 The facts 423 Whitney had worked for the Respondent at various times since about 1929 In 1947 Whitney asked District Manager Earl Morley of Quannah for employment. About 2 weeks after he had been reemployed at Quannah, Morley reminded Whitney that "we don't believe in the Union out here now." About March 1950 W. O. Wallace , district manager at Ballinger , who was in desperate need of a competent lineman at that time, employed Whitney as a lineman despite his knowledge that Whitney was a Umon man and that Whitney allegedly had left unpaid bills in certain places of his previous employment. Wallace informed h'.:itney at that time that he was employing him on a 30-day trial period and that he must keep his bills paid in Ballinger. In July 1951, upon hearing of the Supreme Court decision in the case aforementioned, Whitney became active in reviving interest in the Union around Ballinger . Arrangements were made for a Umon meeting to be held in Whitney's home on August 3, 1951, at which Business Agent Alton S. Ray of Local 898 was to speak. Whitney informed all the crew members of the meeting and invited them to attend. On the afternoon of August 3,1951, the day of the scheduled Union meeting, Chisholm and his line crew with the big truck and the pickup truck were working at Santa Ana when, just about the end of the day , a radio message was received from W. B. May, assistant district manager at Ballinger who was in charge while Manager W. O. Wallace and Engineer Cherry were on a weekend fishing trip, that there was a transmission line break on the Miles -Bronte line. May ordered Chisholm to send his big truck through Ballinger to Bronte while Chisholm with the pickup truck was to stop at Ballinger and see May before proceeding to Miles Upon Chisholm's orders the big truck proceeded through Ballinger to Bronte where they found the lights working unimpaired thus indicating that there was no break in the line between Bronte and the pump station as current flowed to the pump station from both Miles and Bronte. As ordered, Chisholm with the pickup truck stopped at May's home in Ballinger where Chisholm and May held a short private conversation in which, according to Chisholm's testimony, May said nothing he had stated in the radio conversation earlier.n After this conversation Chisholm went to the Respondent's supply depot where he picked up one crossarm together with the hardware necessary to attach it to the pole and then proceeded to the vicinity of Miles where he began patrolling the line toward the pump station. The switch at the Miles substation was out thus indicating the break was between the pump station and Miles After proceeding a few miles toward the pump station, Chisholm's crew located the trouble on the line--a broken crossarm--which they proceeded to fix. In the meantime Chisholm had ordered the crew on the big truck to patrol the line between Bronte to the pump station where the two crews would meet. Chisholm explained this unusual patrol on the ground that the line between Miles and the pump station was in a state of "bad repair." Patrolling a line at night, however, is done usually only in the case of a known break. The two crews finally met at the pump station, returned to Bronte for dinner, arriving back in Ballinger at 10:30 p. m. or later, so that no Union meeting could be held that evening. However, the Union meeting was held at Whitney's home the next afternoon, Saturday, at which five or more employees were in attendance with some joining the Union at that time.ii About September 7, 1951, Whitney sustained an injury at work. On September 15 Whitney was called to Wallace's office and informed: "We have got to lay you fellows off; we have got too many men, have to cut the force." When the Union objected to this dismissal at the i6 Foreman Jack Chisholm testified, however, that he knew nothing of this meeting. It According to Foreman Chisholm, May actually told him that the break was between Miles and the pump station located between Miles and Bronte. 18 Employee Palmertree testified that about 2 weeks thereafter Assistant Engineer "Buck" Coleman told him of overhearing a conversation in the Ballinger office between Cherry, the assistant engineer, and Foreman Chisholm during which Cherry is alleged to have said that the break of August 3 was "cooked up" in order to prevent the Union meeting scheduled that evening. Chisholm denied that any such conversation took place. Cherry was not called as a witness, nor was Coleman. The alleged conversation between Cherry and Chisholm remained hearsay and, as the undersigned does not believe that Cherry's statement to Palmertree constituted an admission by Respohdent, the undersigned disregards this testimony in making his findings. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiations then in process, Attorney Cain telephoned Wallace to reinstate Whitney "immedi- ately" and to make a report regarding the dismissal Whitney was reinstated on September 17 but was injured that same day causing a hernia which was operated on September 29. About October 19,Whitney reported to Wallace that he would be ready to return to work in a few days but Wallace replied, "Not here." He then explained that Whitney was "all through" and that the injury and operation had merely post- poned his first dismissal action toward Whitney. Whitney has not worked for the Respondent since The facts of this case show that Wallace actually reduced his crew from 8 to 6 men and that the crew has remained at that or a smaller number ever since. The facts also show that Whitney was the last man employed on this crew at the time of the reduction. Wallace admitted, however, that he could have rehired Whitney when other members of the crew voluntarily quit the Respondent's employ. 2. Conclusions With two important exceptions, the discharge of Whitney is almost identical with the dis- charges of August 2 Again within days of the holding of a Union meeting to revive interest in the Union following the Supreme Court's decision, the Respondent discharges the leading adherent of the Union in the district at whose home this meeting was to be held Again the Respondent claims that this was an economy move. In the absence of any evidence to the contrary, it will be here accepted as an economy measure on the part of the Respondent. The first important deviation mentioned above is the fact that in the case of George Whitney there can be no claim of a discriminatory selection for layoff, because Whitney admittedly was the employee with the least seniority on the line crew at Ballinger In other words, assuming that the Respondent desired to rid itself of Whitney because of his activities on behalf of the Union, the circumstances in the form of the fact that Whitney was the man with the least seniority and thus the logical man to be discharged in an economic reduction in force would prevent the discharge of Whitney at this time from being discriminatory. The Respondent made much of the application of seniority in this case As in the case of the discharges of August 2, the Respondent disclaimed knowledge of Whitney's Union activities but the facts prove the contrary. He was known to be a Union man when hired. May testified at the hearing that he had no knowledge that a Union meeting was to be held on August 3 and that the first information he had in that regard was on the Thursday following August 3 when Dan Whittaker telephoned him from Abilene and told him that the Union was contending at the negotiations that May had interfered with the holding of this Union meeting by sending the crew to Bronte. However, the facts show that upon the return of Wallace from his fishing trip on either Sunday or Monday and thus prior to the Whitaker call, May reported the break on the Miles-Bronte line and connected it with the fact that the Union had intended to hold a meeting that evening. In view of this testimony and in view of the fact that the Union made "no secret" that it was to hold a meeting that evening, the undersigned has no hesitancy in finding that the Respondent, and May, had knowledge that the Union intended to hold a meeting on August 3 prior to sending the line crew to check the Miles-Bronte line. May also testified that all that the dispatcher in Abilene had reported to him on the evening of August 3 was that there was a break on the Miles-Bronte line. However, Foreman Chisholm admitted that May told him that the break was between Miles and the pump station. In view of the fact that power flowed to the pump station from both directions, i. e., from Miles and from Bronte, it is clear that a minimum of checking could have located the break between Miles and the pump station, especially as the lights in Bronte had not been affected In fact, Chisholm finally admitted that the big truck was sent to Bronte to patrol that line to the pump station solely because the line was in a bad state of repair. It is also significant that, after speaking with May privately at his home, Chisholm drove to the supply depot and picked up a crossarm with the necessary hardware, the exact material necessary to repair the break Under these circumstances the undersigned is convinced, and therefore finds, that the Re- spondent through May ordered the whole line crew to patrol the line from Miles to Bronte on the evening of August 3, 1951, in order to disrupt the scheduled Union meeting which the Re- spondent knew was to be held that evening. Obviously the purpose of this maneuver by the Respondent was to interfere with, restrain, and coerce its employees in the exercise of the WEST TEXAS UTILITIES COMPANY 425 rights guaranteed to them by Section 7 of the Act in violation of Section 8 (a) (1) of the Act, and the undersigned so finds. Although the Respondent 's application of the seniority principle in the layoff of George Whitney prevented his discharge on October 29, 1951 , from being discriminatory as found heretofore, the facts show that the application of the same seniority principles as applied by Respondent in his discharge would have required the Respondent to reinstate Whitney thereafter as a replacement for men who voluntarily left the Respondent's employ. The undersigned , therefore, finds that the Respondent's refusal to reinstate George Whitney to the line crew at Ballinger as a replacement for employees who either were dis- charged or voluntarily terminated their employment with Respondent on the crew was caused by the Respondent's desire to be rid of a known Union adherent and in order to discourage membership in the Union in violation of Section 8 (a) (3) and (1) of the Act. C. The alleged discharge of Raymond B. Sadler 1. The facts As a result of a representation hearing held prior thereto during which the Respondent and the Union agreed that shift engineers in the Respondent 's powerplant were supervisory em- ployees within the meaning of the Act , the Board held on November 29, 1951 , in Case No. 16- RC-812, that shift engineers were supervisors and excluded from the appropriate unit of the employees employed in Respondent 's powerhouses . At the instant hearing the General Counsel, Union, and Respondent stipulated that Sadler was a supervisor within the meaning of Section 2 (11) of the Act. Prior to the timeofthis representation hearing , Sadler had been employed by the Respondent at its Lake Pauline plant as a shift engineer but was also the elected Union steward at the plant as he was one of the most energetic organizers at the plant. Promptly after the determination that shift engineers were supervisors , Attorney Cain together with Vice -President Schroeder , Whitaker , and Attorney LeeSmith , visited the various Respondent power installations , met with the shift engineers , and informed them that it had been determined that they were supervisors . Sadler requested "legal proof" that he was a supervisor at this time but he apparently accepted the change in status as he thereupon resigned as steward and as a member of the Union. After the Union had informed Sadler that , as a supervisor , he could no longer remain a member of the Union in accordance with the agreement between the Union and the Respondent that shift engineers were supervisors , Johnson called Sadler to his office one morning and stated , "God damn , I have got you where I want you . They throwed you all out, Looks like you all would learn that the Union wasn't going to do anything for you.... I have got you right where I want you." When Sadler suggested that Johnson fire him , Johnson denied having any such intention and then began a polite discussion for about a 10-minute period. The National Labor Relations Board election in the powerhouse unit as determined in Case No. 16-RC-812 was scheduled for December 19, 1951 . After the time of the election had been set, Chief Engineer R. A. Johnson called a meeting of the shift engineers at Lake Pauline on December 13 , 1951 , at which Johnson explained that the Respondent had some money left from the last wage increase authorized which it wanted to distribute to the em- ployees as a blanket increase. Johnson turned to Sadler and inquired: "Would the men on [your] shift take a nickel raise and be satisfied ." After Sadler inquired what that nickel was "supposed to buy," Johnson stated : "Well, it wasn't supposed to buy anything , but that the Company had a 2 percent left from the 10 percent increase that the Government had authorized and they wanted the men to have it before negotiations started in because they was going to tie it up in courtandtherewouldn 'tbe any more raises ." Sadler asked if Johnson had talked to the employees and Johnson replied: "I can't talk to the men because the Union will object to it." After some talk Sadler became convinced that this was the only way the employees would secure a raise and so agreed to authorize the increase and inform the men. After the meeting Sadler explained to the employees why he had agreed to authorize this increase. On the morning of December 15, 1951 , when Sadler appeared to get his paycheck after working the night shift , Johnson handed him his check and said , "You have worked your last damn shift for this Company ," and explained that the shift he had referred to was the one 42 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sadler had just completed. The only explanation which Johnson would give to Sadler for his discharge was: "It was that little incident. . . . You know that little incident." Despite this increase the Union won the election held on December 18, 1951.19 2. Conclusions In this state of the record the General Counsel argues in his brief: There is no doubt about Sadler's supervisory status, and counsel contends he was dis- charged for refusing to carry out a company demand to assist in the commission of an unfair labor practice. In this connection, counsel directs the attention of the Trial Exam- iner to Johnston's question to Sadler, "Will the men on your shift take a 5-cent raise and be satisfied." Counsel contends that Johnston in asking this question was making a demand on Sadler to talk to the men on his shift and persuade them to vote against the Union in persuade them to vote against the Union in the election which was imminent in return for a wage increase. In the evaluation of this matter, it should be remembered that Sadler a former union steward would carry considerable weight with the union men on his shift, and any request he might make would be seriously considered. This demand made of Sadler by Johnston could only mean that he was being asked to persuade the men to vote against the Union or get out of the Union. Otherwise, why would Johnston have said with respect to the raise "and be satisfied." Counsel directs the attention of the Trial Examiner to the fact that Sadler was the only one who objected to the granting of a raise and showed this objection by asking what the raise was supposed to buy. When Sadler was discharged without warning a day or so later and demanded to know the reason for his discharge, he was told by Johnston that it was for "that little incident." Counsel submits that this could only refer to the incident when Sadler refused the Respondent's demand that he assist in its illegal purpose of granting a wage increase on the eve of the election in order to persuade the employees to vote against the Union or leave the Union. s Accordingly , counsel contends that the real reason for Sadler's discharge was his re- fusal to persuade the employees on his shift to vote against the Union in the coming election. Counsel submits that a discharge for such a reason falls squarely within the Board's language in the Inter -City Advertising Case , 89NLRB 1109 , that , "The discharge of supervisors for refusing to aid in such a campaign unlawfully interferes with, re- strains , and coerces the nonsupervisory employees involved." The undersigned assumes that the Respondent arranged the announcement of this 5-cent across-the-board pay increase at this time for the purpose of causing the defeat of the Union at the election scheduled to be held on December 19. He also assumes that this would be found to be an unfair labor practice in a proceeding brought for that purpose. The undersigned, having been the Trial Examiner in the Inter-City case, naturally agrees with the law therein propounded and in the subsequent case of Talladega Cotton Factory, Inc., 106 NLRB 295. As a supervisor Sadler is not within the protection of the Act unless he fits within the exception to that rule stated in the above-cited cases. The undersigned has trouble in construing the statement of Johnston as a request, demand, or order to Sadler that he engage in the Respondent's coercive plans. Furthermore, although objecting, Sadler did authorize the raise and did inform the employees under his direction thereof as requested by the Respondent. In view of the fact that there is no testimony in this record showing either that Sadler exposed the Respondent's coercive plan to the employees or that the Respondent had any information that Sadler had so exposed the plan to the employees or that the discharge of Sadler would further coerce the employees or interfere with their rights, the undersigned is unable to find that the discharge of Supervisor Sadler falls within the exception to the general rule applicable to supervisory personnel as set forth in the cases 19 On June 5, 1953, an Intermediate Report was issued in Case No. 16-CA-584 holding that the Respondent had refused to bargain with the Union as the bargaining agent for the employees in the above-stated appropriate unit See 106 NLRB 859 for Board affirmances of this Intermediate Report. WEST TEXAS UTILITIES COMPANY 427 cited above. This conclusion is further buttressed by the fact that Sadler was discharged before the election so that Respondent could not have known if its plan to coerce had been successful. The burden is upon the General Counsel to make out a prima facie case and thus the fact that the reasons advanced by the Respondent as the alleged causes of the discharge were specious will create no inference to assist the General Counsel's case where he has originally failed to make a prima facie case. In this state of the record, the undersigned must recommend that the complaint be dismissed as to Raymond B. Sadler. D. The discharge of Alton S. Ray 1. The facts Alton (Curley) S. Ray worked for the Respondent almost continuously from 1926 to 1941 when he left Respondent's employ for the last time. He became business agent of Local 898 and a member of its negotiations committee in 1946 and has been bargaining futilely with the Respondent since as a member of that committee. As the position of business agent for Local 898 is not a full -time or paid position, Ray has been working at his trade in addition to his duties as business agent. The Respondent has a powerplant located in San Angelo upon which in April 1951 the Re- spondent was having some work done by Southwest Electric Company of Amarillo, Texas, under an oral cost-plus contract. Southwest Electric Company, hereinafter referred to as Southwest, is an independent electrical contracting company of which Roy L. Peters was, and is, the vice president. About April 28 or 29, 1951, Southwest employed Ray on this project for the Respondent. About a week after the employment of Ray, Production Superintendent Edwin W. Hamilton of the Respondent walked up to Peters on the San Angelo job and said: "You know you have a man on your job that caused us considerable trouble" and proceeded to identify the man as Ray. Peters passed off the remark but continued to employ Ray on the project. In July 1951 Attorney Frank Cain had occasion to be on the premises of the San Angelo powerplant and noted Ray working there. Immediately after seeing Ray, Cain telephoned Vice-President Schroeder and told him "to get Mr. Ray off of that job." A day or so there- after, about July 26, 1951, the Respondent ordered this project shut down on account of a purported shortage of materials which the Respondent was supplying. The project there- after remained closed until the beginning of 1952. As noted heretofore, the Respondent and the Union began holding negotiating meetings on August 8, 1951. These meetings were still continuing on October 24, at which time the assist- ance of a conciliator from the Federal Mediation and Conciliation Service had been called in by the Union. The last few meetings prior to the aforementioned date had been held in Dallas, Texas, at the request of the conciliator in an effort to create a more amicable atmos- phere between the parties by meeting on "neutral territory." At Dallas the Respondent was represented by Attorneys Cain and Smith alone without the presence of any Company officials. On October 24, 1951, the Union requested a recess of the meetings on the ground that the Respondent was not bargaining in good faith due to the absence of any Company official authorized to bargain and due to the fact that Attorney Cain had proved by his actions that he did not possess the requisite authority for good-faith bargaining. After this request had been made, Ray was given the floor and spoke as follows:20 Well, I have got a few words I want to say about what we consider the attitude of the Company is. The Company apparently has taken the attitude if the Company gives a little every day or two--if the Union gives a little everyday or two we will eventually give in to the Company altogether and we'd sign an agreement like the Company wants, go back to our people 20 This statement is adopted from a so-called "transcript" of the proceedings which were made at the instance of the Respondent. This transcript is not complete as it is undenied that Attorney Cain customarily raised his hand as a signal to the reporter whenever he desired that a portion of the proceedings be omitted from the "transcript." Witnesses for boih sides admitted that the transcript accurately recorded Ray's statement at this point so far as the transcript went but that the transcript, although containing no internal evidence thereof, did not show statements made by each party following this quotation. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with an agreement that would be an agreement for the Company altogether . It would be a one-sided affair. If we did go back to our people with an agreement like that , the Company knows -- or they think that that would break the Union. That's what they are out to do. That's what they have been trying to do since this thing was organized in 1937 . They have harassed their employees , they have fired them , they have laid them off, they have transferred them , they have followed them all over the country , they have watched their homes all night , they have called them in on the carpet and asked them what they were doing at midnight and 2:00 o 'clock in the morning talking to certain people , which was none of their damned business. Those things have continued on up until today , except during the war when this thing died down. Then when the war was over the thing was tried again and the same thing started , although not so much as it did before. This Company doesn't give a damn about their employees . All they think about is what they want to do , like Mr. Edwards stated about this slavery business . The Company has the attitude that these people belong to them, body and soul. I know, I have worked for them a long time . I know that. You people don't know them like we do ; you don't see them in the light that we see them in. They want these men to work day and night , do anything they tell them to do, don't complain about it, take these sub -standard wages that they offer them , and if they don't want to take it, why, "The hell with you, you can go somewheres else." Another thing , the Company has refused to send even one Company official to this table here in Dallas . We didn't move this thing, the Conciliation Service moved it, be- cause we were told that in a change of atmosphere maybe we could get something done. The Company didn't want it moved and they refused to send one official. Heretofore, they have had anywhere from one to three Company officials sitting at this table all the time, but they just don't have the damn time now to leave up there and come up here and talk to us . So for that reason , they have taken the attitude , "Well, hell, we didn't want to move, our attorneys can go down there , and if there's anybody don't like it, the hell with the Union, to hell with the Government agent and everything else." They still have the attitude that they are king out there. They have been to a certain extent, but by Cod it's going to someday cease . They are not going to be the king. There's other ways of doing this thing. There 's people out there that don't like West Texas Utilities ; influential people, too. And if it takes things like that to get this thing done, by golly I'm ready to start doing it. I know how to go about it. I can't do it overnight, but I know people to go to that will start hurting this company . If that's the attitude they are going to take , well they know the attitude we can take . If they are going to fight dirty, well we can fight dirty. Since 1937 these employees have been trying to get an agreement with this Company. They have done it according to law , we have done it in an orderly manner, and they have suffered. But I am going to say to you now there is a day of reckoning coming for this damn Company, and I don't care how bigor how strong or how high they sit, they can still fall, and by God I'm going to go back home and start it. I know just how to start it, too. Although the transcript fails to give any indication of it , the witnesses were in accord that, at this point, a bitter altercation occurred with the principals rising from their chairs in anger and were only quieted through the intervention of the mediator. According to Ray, Attorney Lee Smith for the Respondent thereupon threatened him: "If you go bask down there and start burning down the line or pull a strike , I will have you put in the penitentiary and ruin you." Ray's answer was : "I didn't say anything about burning down the line or pulling a strike." When Smith asked what he meant, Ray replied , "Municipal Plant, municipal ownership." According to Cain , Ray continued his above statement as follows : "And by God , if its the last thing I do, I will see this Company brought to its knees and I will see that it is destroyed if it is the last thing I ever do. If they can do that, I can certainly do it better than they can and....... At this point Smith spoke saying: "Curley, if you ever touch one thing or commit any act of violence against the property of this Company to damage it or destroy it or do any- thing else , I will have you in the District Court just as fast after that as I possibly can." Ray then stated: "You can't threaten me", to which Smith replied : "That's not a threat; it's a promise." Cain continued his description of this altercation with Ray saying: "I am bigger than you are and I am going to come over there and punch you in the nose" but that WEST TEXAS UTILITIES COMPANY 429 the conciliator , being much larger than either of the principals , stepped in and quieted them both. It is noteworthy that the transcript confirms Ray's contention that he was not talking about destruction of physical property and through his referenceto "influential people" who rarely, if ever, resort to physical destruction of property, was, in fact, refering to municipal owner- ship. It is also noteworthy that, while Cain denied that Smith had used either of the words "strike" or "penitentiary," he did admit that Smith threatened Ray with the "District Court"-- obviously on criminal charges which quite frequently lead to the penitentiary. Thus the fact that Smith may not have uttered the words "strike" or "penitentiary " appears inconsequential-- his admitted statement containing the concept. In February 1952 , the maintenance work on the San Angelo powerplant reopened with South- west continuing the operation under the old oral cost -plus contract as an independent con- tractor. As usual Peters secured electricians through Ray's office for this job. In the early part of March, Hardin, who was in charge of electrical construction work for the Respondent , spoke to Peters on the powerplant site saying , "Pete, I'd rather that you wouldn't get Curley [ Ray] back to work." When Peters asked if there were a reason for this request, Hardin answered , "Well, not that I know of, but --there has been some conversation about it and I think it will cause confusion if you do." About this same time Peters called Ray for some more electricians and Ray replied that he himself was available for work. This led to Peters informing Ray that the Respondent had objected to the employment of Ray on this project . As Peters at this time had no idea as to the basis of the Respondent 's objection , he determined to, and did, secure an appointment to discuss the matter with Respondent's officials in Abilene on March 15. This meeting was held in the Respondent's offices in Abilene and was attended by Peters, Dan Whitaker , special engineering assistant to the president of the Respondent , C. L. Young, chief engineer of the Respondent , and the aforementioned Hardin . When Peters inquired as to why the Respondent objected to the employment of Ray , Whitaker answered by stating that the Respondent objected to using Ray "because he was a union organizer and because of threats that he had made at a recent union negotiation against the Company." Whitaker stated further that "if [Southwest] were forced to use help that had made a threat against the Company, that hetWhitaker] would rather do it with Company employees." 21 On Monday, March 17, Ray applied at the headquarters of Southwest for a job in accordance with Peters ' call for electricians . Although Ray was qualified for the job and had proven satisfactory during his prior engagement on this same project.22 Peters answered Ray's request for employment by saying that his reasons remained the same as they had been during their last conversation. Ray requested Peters to repeat that reason before the other officials of Southwest and other employees then present . Peters then repeated that the Respondent objected to the employment of Ray by Southwest on the grounds that Ray was a Union or- ganizer and had made threats against the Respondent during the negotiations. Ray was thus denied employment by Southwest and has never since been employed by them. 2. Conclusions The undenied facts of this case prove conclusively that the Respondent caused Southwest to refuse employment to Alton S . Ray because Ray "was a union organizer and because he had made threats against the Respondent during the negotiations .,'23 Respondent forced Southwest to deny Ray employment because of his Umon activities by threatening to do its future electrical work not with independent contractors' crews but with its own, thus depriving Peters and Southwest of valuable financial contracts. In this state of the record the Respondent defends upon the grounds: First, the Board is "without jurisdiction " to bring a charge based upon the discharge and refusal to reinstate 21 This remark would lead to the conclusion that the Respondent was not concerned over any difference in cost between using Company crews or contract crews. 22 In fact Peters personally desired Ray's services on the job because of his acknowledged ability. 23 This finding is based upon the undenied testimony of Roy L. Peters, whose testimony was not only undenied but could not have been successfully challenged because not only his demeanor upon the stand proved his sincerity and honesty but also because his unique position between the two contending parties made his exact adherence to the truth so hecessary for his own future welfare. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ray because no employer--employee relationship existed between the Respondent and Ray; and second, because Southwest and Peters were independent contractors over whom the Respondent had no control. The Respondent's first contention is necessarily based upon the premise that the Act requires the proximate relationship of employer--employee to exist between the alleged dischargee and the Respondent for the Act to be applicable. The Board has recently con- sidered and disposed of a similar contention made in the Austin Company case, 101 NLRB 1257, as follows: Austin's defense rests squarely on the assertion that an employer cannot violate Section 8 (a) (3) of the Act except with respect to its own employees, and as these guards were employees of Pinkerton, no violation can be found against Austin.... It is evident, as the Trial Examiner found, and as the General Counsel concedes, that these guards were not employees of Austin. However, Austin's defense, grounded on this fact alone, finds no statutory support. Rather, the statute, read literally, pre- cludes any employer from discriminating with respect to any employee, for Section 8 (a) (3) does not limit its prohibitions to acts of an employer vis-a-vis his own employees. Significantly, other sections of the Act do limit their coverage to employees of a partic- ular employer. Thus, Section 8 (a) (5) makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representative of his employees ..." and Section 8 (b) (4) (B) prohibits a labor organization from striking to force or require any other employer to recognize the labor organization "as the representative of his em- ployees . . ." (emphasis supplied). Thus, the ommission of qualifying language inSection 8 (a) (3) cannot be called accidental. Moreover, Section 2 (3), in defining the term em- ployee, provides that the term ". . . shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise ..." The statutory language there- fore clearly manifests a congressional intent not to delimit the scope of Section 8 (a) (3) in the manner urged here by Respondent Austin. [Footnote omitted.] As to the Respondent's second contention, there can be no question but that Southwest was, at all times material here, an independent electrical contractor. But Southwest was performing the work at the San Angelo powerplant under the conditions set forth in a "Sargent and Lundy" contract which included the following: 6. ERECTION: Contractor shall provide all labor, tools, hoists, materials, scaffolding, falsework, etc., which may be necessary for the WORK, and shall take out and pay for any required permits. Contractor shall maintain a competent superintendent at the site at all times to supervise the WORK and conduct it in cooperation with purchaser or the consulting engineers, and in coordination with all other work being done on the premises. If in purchaser's judgment it is desirable, contractor shall at purchaser's request remove any employee from the WORK. Contractor shall conduct his labor forces so as to be in compliance with the provisions of the National Labor Relations Act, as amended by the Labor Management Relations Act of 1947; all subsequent amendments thereto and decisions of the National Labor Relations Board, and the Courts of the United States interpreting said statutes. The last sentence of the first paragraph of this section of the conditions under which the Re- spondent required Southwest to perform the maintenance work makes it clear that, while South- west was an independent contractor, the Respondent retained a significant power of control over Southwest's employment policies, to wit, the right to force the independent contractor to remove any employee from the work beingdoneunder the particular contract. Thus it is clear that under this provision of the conditions of work, the Respondent retained substantial con- trol, indeed, the power to discharge any or all employees of the independent contractor. This power retained by the Respondent to veto the right of an employee of Southwest to work at the San Angelo power project clearly brings the Respondent here within the definition of "em- ployer" contained in Section 2 (2) of the Act.U 24 Austin Company , 101 NLRB 1257 ; Bretz Fuel Company, 104 NLRB 379. WEST TEXAS UTILITIES COMPANY 431 The Respondent also appears to rely upon the second paragraph of the above -quoted of the "Sargent and Lundy" conditions of work as a defense . In view of the fact that the Respondent had to force the commission of this unfair labor practice by threatening to do the work then being done by Southwest with its own employees thus depriving Southwest of a beneficial con- tract unless it bowed to Respondent 's willby refusing employment to Ray, the Respondent can- not be heard to claim any defense by reason of said section of the contract . Except for the Respondent 's demand, no unfair labor practice would have been practiced upon Ray. In addition the Respondent maintained that it had a right to protect its property from possible injury and damage from one who had threatened it during negotiations . In the first place Ray had threatened the Respondent only with the fact that he was going to advocate municipal ownership--not that he would destroy Respondent's physical property. Assuming arguendo that the Respondent was seriously concerned over this threat made during nego- tiations , it is questionable whether that concern would justify the Respondent in denying Ray employment for the simple reason that the establishment of any such rule would destroy collective bargaining by granting the employer the right to discharge any Union negotiator for making any statement which it did not like during the heat of negotiations . Hence, the element of independence so necessary to collective bargaining would be lost. However, in this case it is not necessary to determine that question of law for it is all too obvious from Cain's order to Schroeder in July- -prior to the making of any threat --"to get Ray off the job," that the so-called threat played no part in the Respondent 's determination to keep him from em- ployment on its project. It is clear thatthe Respondent demanded the removal of Ray solely be- cause of the fact that he was a Union organizer and that the Respondent did not want its em- ployees organized. And the undersigned so finds. Cain testified that his reason for immediately telephoning Schroeder in July 1951 to get Ray off the job was that, in December 1949, an employee named Everett brought some dynamite onto the property of the Rio Pecos plant of Respondent and that Everett was a member of the same local of the Union of which Ray was the business agent.?5 The only claimed connection of Ray with this incident was that Ray was the business agent of the same local union in which Everett was a member. It is noteworthy that Whitaker made no mention of this 1949 incident to Peters at the meeting of March 15 , 1952. It is even more significant that Cain failed to mention the 1949 incident during his testimony until cross-examination disclosed that he had telephoned Schroeder "to get Ray off the job" long before the threat of October 24 upon which Cain had been relying to that point. It is obvious that Cain was searching for something to justify his antiunion behavior in relation to Ray. The undersigned believes , and therefore finds , that this alleged excuse is as spurious as the Respondent 's alleged concern over the Ray statement of October 24.26 Then, as a sort of sockdolager , Respondent adds the following argument: Respondent believes that it was well within its rights and within the law to object to the presence of a professional union organizer soliciting members about its dangerous installations such as high -pressure steam lines and high-voltage electric lines as were maintained in the Concho power plant at San Angelo , Texas . N. L. R. B. v. Kentucky Utilities Company, U. S. Circuit Court of Appeals , Sixth Circuit, (182 Fed. 2d 810), Order modified as follows : " ... issuing or enforcing a rule prohibiting union solicitation or activity by the company employees on company premises during the employees ' nonworking hours , except that no solicitation need be permitted in the immediate areas of, the switchboards, turbines, boilers , transformers , high-tension lines , generators , and steam lines. This argument might have some validity if Ray were to have appeared among these installations in his capacity as an organizer but, when it is recognized that he would have to appear there, if at all, solely in his capacity as a craftsman , the argument falls of its own weight. It is interesting to note the following statement made in the Respondent 's brief: "The Respondent did not at any time seek to interfere with any of Mr . Ray's organizational activities 25 The Board denied Everett reinstatement on June 28 , 1951, in Case No 16-CA-193 26In this connection it should be noted that throughout this hearing the undersigned was impressed by the lack of candor , frankness, and openess displayed by the Respondent. There was an unwillingness to disclose the facts fully. It is also exemplified by the omissions from the so-called "transcript " of the negotiations whenever Cain desired anything omitted therefrom. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other than on the premises of its steampower plant at San Angelo, Texas." And then consider the excursion of the Ballinger line crew to Miles-Bronte on the night Ray was scheduled to meet with the Union members at Ballinger. The testimony is clear, and the undersigned finds, that the Respondent caused Southwest Electric Company to refuse employment to, and to refuse to reinstate, Alton S. Ray on March 17, 1952, because of his known Union membership and activities and in order to discourage membership in the Union in violation of Section 8 (a) (3) and (1) of the Act. E. The Morley-Spoon incident Sometime in the middle of July 1951, a Union meeting was held at employee George Spoon's home in Quanah, Texas. The following morning Earl Morley, district manager at Quanah, told Spoon at the Respondent's office: "I see your long tall friend 27 was in town last night... Well, you was blowing and going up there .... Well, that's all right if you want to be a lineman all of your life... I want you to know now what was going on up at your house last night has got to stop. . . You are working against the Company. . . You know they don't want a Union... Another thing, I know everybody was up there at the meeting." Morley then brought up the fact that Mrs. Spoon had used Respondent's radio truck to go to the baseball game that evening as had been her usual practice and that that practice would have to stop. Morley admitted having made the first 2 remarks quoted above and also that he had ordered that the personal use of the 2 Company trucks cease. He testified that he believed that this last order was given in another conversation. He denied that the remainder of the above conversation took place but his denial was based in large part on the contention that Spoon had "intentionally twisted" remarks made by Morley. Other than that, Morley's memory of the conversation was completely negligible. As a witness Morley was noteable for his efforts to evade answering questions. His efforts along this line were more convincing than his denials and, therefore, the undersigned finds that the conversation occurred as found above and that said statements were made for the purpose of interfering with, restraining, and coercing the employees in the exercise of the rights guaranteed by Section 7 of the Act and violated Section 8 (a) (1) of the Act. IV, THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent discriminated against Arthur Crisman, H. W. Black, A. R. Legett, Sidney Wright, B. D. Thomas, George Whitney, and Alton S. Ray either by dis- criminatorily discharging them or bydiscriminatorily refusing them employment or reinstate- ment because of their Union membership and activities, it will be recommended that the Re- spondent offer each of them immediate and full reinstatement to his former, or substantially equivalent, position without prejudice to his seniority or other rights and privileges, and make each of them whole for any loss of pay he may have suffered by reason of said discrimination by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discriminatory discharge or refusal of employment to the date of the Respondent's offer of reinstatement, less his net earnings during said period, said back pay to be computed on a quarterly basis in the same manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. The Respondent, upon request, shall make available to the Board payroll and other records to facilitate the determination of the amounts due. Upon the consideration of the record as a whole the undersigned is convinced that the Respondent's conduct indicates an attitude of opposition to the purposes of the Act generally and that its "notorious antagonism" to the Union continues unabated. In order, therefore, to 27 The reference was to J W Null, Union representative. BULL INSULAR LINES, INC. 433 make effective the interdependent guarantees of Section 7 of the Act, thereby minimizing industrial strike which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that the Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, AFL, Localiinions Nos. 920, 1044, and 898 are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and 'tenure of employment and in the terms and conditions of employment of Arthur Crisman, H. W. Black, A. R. Legett, Sidney Wright, B. D. Thomas, George Whitney, and Alton S. Ray because of their membership in and activities on behalf of the Union thereby discouraging membership in International Brotherhood of Elec- trical Workers, AFL, Local Unions Nos. 920, 1044, and 898, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 3. By interfering with, restraining, and coercingtheemployees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices'affecting commerce with- in the meaning of Section 2 (6) and (7) of the Act. 5. By discharging Raymond B. Sadler the Respondent did not commit any unfair labor practice. [Recommendations omitted from publication.] BULL INSULAR LINES, INC., and WATERMAN DOCK COM- PANY, INC. and JUAN MARIA PIZZINI, ET AL. LOCAL 1585, MAYAGUEZ UNION OF THE INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL and PUERTO RICO STEAMSHIP ASSOCIATION. Cases Nos. 24-CA-363 and 24- CB-46. April 23, 1954 DECISION AND ORDER On January 14, 1954, Trial Examiner Thomas N. Kessel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents, Bull Insular Lines, Inc., and Waterman Dock Company, Inc., herein called the Companies, and the Respondent, Local 1585, Mayaguez Union of the Inter- national Longshoremen's Association, AFL, herein called the Union, had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Companies filed exceptions directed only to the remedy recommended in the Intermediate Report. No other exceptions have been filed. 108 NLRB No. 77. 339676 0 - 55 - 29